THE CATHOLIC UNIVERSITY OF EASTERN AFRICA

FACULTY OF LAW

NAME: JACOB MWANZIA NGOSO

ADMISSION: 1036848

UNIT: INTERNATIONAL CRIMINAL LAW

UNIT CODE: CLS 438

LECTURER: DR. GRACIEUX MBUZUKONGIRA

Case analysis

The Prosecutor v. Ahmad Al Faqi Al Mahdi ICC-01/12-01/15-171 27-09-2016 1/49 SL T

Summary of facts of the case

Fighting erupted in Mali in January 2012, as rebel groups took control of some of the country's
northern regions. When the Malian army retreated from Timbuktu, Ansar Dine, a Malian jihadist
organization, and one of its allies, Al Qaeda in the Islamic Maghreb, took control. Ansar Dine,
which means "defenders of faith," sought to impose Sharia law in its strictest form throughout
Mali. By establishing a local government in Timbuktu that featured "an Islamic judiciary, an
Islamic police force, a media commission, and a morality squad known as the Hesbah," it
worked toward this goal. Due to his allegedly strong religious background, Ahmad Al Faqi Al
Mahdi, an inhabitant of the Timbuktu region, took over management of the Hesbah in April
2012. The commander of Ansar Dine gave the order to demolish the nine saints' mausoleums and
one mosque in Timbuktu in June 2012. Both locals and visitors frequented these places for
prayer and other rituals and celebrations. Between around June 30 and July 11, 2012, Al Mahdi
and those operating on his behalf attacked and destroyed ten of the most significant and well-
known sites in Timbuktu.

Al Mahdi was present at all ten (10) attacks; he routinely provided attackers with instructions
and tools, spoke to reporters, and actively assisted in the destruction of at least five locations.

Mali's Ministry of Justice requested, on July 13, 2012, that ICC Prosecutor Fatou Bensouda open
an inquiry into alleged war crimes and crimes against humanity committed since the start of the
conflict. In September 2015, the ICC issued a warrant for Al Mahdi's arrest, and the Nigerien
government turned him over to the tribunal.Al Mahdi was prosecuted by the Office of the
Prosecutor (OTP) in December 2015 with one count of war crime for striking objects under
Rome Statute Article 8(2)(e) (iv). Al Mahdi's guilty plea at his trial in August 2016 represented
the ICC's first guilty plea after the OTP and the defendant signed a plea agreement in February
2016.1

1
‘The Prosecutor v. Ahmad Al Faqi Al Mahdi. Cultural Heritage and Human Rights - GRIN’
<https://www.grin.com/document/379110> accessed 3 July 2022
Ruling of the case
Al Mahdi was ordered to stand trial on March 24, 2016, by the judges of the International
Criminal Court for one charge of war crime related to attacking "buildings dedicated to religion,
education, art, science, or charitable purposes, historic monuments, hospitals, or places where the
sick and wounded are collected, which were not military objectives" as provided for under article
8(2)(e)(iv) of the Rome Statute.
Al Mahdi was declared criminally responsible during the confirmation of charges hearing: as a
direct co-perpetrator under Article 25(3)(a) of the Rome Statute; inducing the commission of
such a crime under Article 25(3)(b) of the Rome Statute; facilitating the commission of such a
crime by aiding, abetting, or otherwise assisting in its commission under Article 25(3)(c) of the
Rome Statute; and contributing in any other way to the commission of such a crime by a group
acting with a common purpose under Article 15(3)(d) of the Rome statute.2

Judgement of the case

In response to Mr. Al Mahdi's intentionally directing attacks against ten of the most important
cultural heritage sites in Timbuktu, Mali, in June and July 2012, the International Criminal Court
(ICC) unanimously found him guilty beyond reasonable doubt as a co-perpetrator of a war crime
under Art. 8(2)(e)(iv) of the Rome Statute. Targeting "buildings dedicated to religion, education,
art, science, or charity purposes, historic monuments, hospitals, and places where the ill and
wounded are collected, provided they are not military objectives," is prohibited under this war
crime. The non-international armed struggle in Mali and the subsequent occupation of Timbuktu
by the armed organizations Al-Qaeda in the Islamic Maghreb and Ansar Dine were factors in
these attacks. All of these locations were found to be religious and historical landmarks, not
military targets, according to the inquiry.3

2
‘Emerging Voices: A Case of Firsts for the International Criminal Court: Destruction of
Cultural Heritage as a War Crime, Islamic Extremism and a Guilty Plea - Opinio Juris’
<http://opiniojuris.org/2016/08/09/emerging-voices-a-case-of-firsts-for-the-international-
criminal-court-destruction-of-cultural-heritage-as-a-war-crime-islamic-extremism-and-a-guilty-
plea/> accessed 3 July 2022
3
‘The Prosecutor v. Ahmad Al Faqi Al Mahdi | ESCR-Net’
<https://www.escr-net.org/caselaw/2016/prosecutor-v-ahmad-al-faqi-al-mahdi> accessed 3 July 2022
When determining the seriousness of the crime, the ICC Trial Chamber VIII (Chamber) noted
that the targeted historical sites held great symbolic and sentimental significance for the
inhabitants of Timbuktu. Saints' mausoleums and mosques in Timbuktu, which were damaged in
the raids, played a significant role in the residents' religious practices and served as a source of
pride for the neighborhood.The Chamber also took note of P-431's testimony (a Malian specialist
in cultural things), who claimed that burning the mausoleums, to which the people of Timbuktu
had strong attachments, was a military strategy intended to destroy Timbuktu's spirit. And all but
one of the locations were listed as UNESCO World Heritage Sites. As a result, the Chamber
considered the attacks on these locations to be particularly serious because their destruction had
repercussions not only for the victims of the crimes who were directly affected, but also for the
citizens of Mali as a whole and the global community.4

During his trial, which took place between August 22 and August 24, 2016, Mr. Al Mahdi
voluntarily and knowingly admitted guilt. The Chamber imposed a nine-year prison term on Mr.
Al Mahdi while pointing to some mitigating circumstances.5

Analysis of the ruling and judgement

Al Mahdi was initially a fairly straightforward triumph for the prosecutor's office. This was
brought about by Al Mahdi's intentional manipulation of media coverage of the destruction,
which not only amplified the seriousness of his actions while also offering compelling evidence

4
ibid
5
ibid
of his guilt. Al Mahdi made statements that were both videotaped and delivered in front of
reporters, defending the vandalism and, thereby, memorializing both the damage and his
involvement. It was characteristic of Al Mahdi to say, "It's possibly the oldest mosque in town,
and it's a World Heritage Site. This is considered heritage by those UNESCO jerks. Can one
have a legacy that includes worshiping cows and trees?," at the Djingareyber Mosque, where two
adjacent mausoleums had been destroyed. 6 Since ths statement conveyed both the intentions of
the attacks and a comprehension of the special status of the sites, all of which are needed under
Article 8(2)(e), it stands alone as unambiguous evidence against Al Mahdi and illustrates the
seriousness of his offense (iv).

In addition, a broader interpretation of Article 8(2)(e)(iv) or a focus on the current flaws in the
Rome Statute's system for protecting cultural heritage would have had a greater long-term impact
on the message the ICC sent to the international community and as a precedent for cases in the
ICC and beyond. Even though it is unlikely that this crime will be prosecuted at the ICC again
very soon, taking this position would have encouraged prosecutions of cultural heritage crimes in
other settings, and would have established a stronger model for future trials.

Furthermore, the court rejected to list factors other than prior World Heritage site designation
that favor protected status under Article 8(2)(e)(iv) despite the prosecution's inclusion of one
non-UNESCO site, the Al Arawani Mausoleum. The court did not specify what made this
mausoleum different from the other nine UNESCO sites, therefore it was nonetheless protected
by the Rome Statute despite not having special status from UNESCO. Because of this, future
attempts to bring charges for attacks on cultural assets where all or most of the target sites are not
UNESCO-listed may be met with doubt on how much of these sites are, in fact, protected under
the Rome Statute.

Also, the court failed to point out any other obvious violations of the Rome Statute's protection
of cultural heritage, which would have been an alternate line of action to a more expansive
reading of Article 8(2)(e) (iv). An archaeological site, for instance, that is devoid of any
structures that could be considered historic monuments or a building dedicated to one of the
6
‘Harvard Law Review’ <https://harvardlawreview.org/> accessed 6 July 2022
stated objectives, such as art or religion, would appear to be exempt from Article 8(2)(e) (iv).
Because "[archaeological] locations, items, and their associated settings are rarely recorded,"
vandalism at such places "has considerably greater damaging effects for our knowledge and
understanding of the past" than robbing or destroying a museum.

Similarly, the court might have and should have used a more assertive strategy when dealing
with the first cases of cultural heritage crimes, choosing to interpret Article 8(2)(e)(iv) broadly or
calling attention to flaws in the Rome Statute. Due to its failure in this, it is unlikely that the
court's ruling in this case will set a lot of precedents. Al Mahdi's guilty plea allowed the court to
examine the boundaries and gaps in the Rome Statute's protection of cultural heritage, and it
ought to have done so in order to advance not only its own jurisprudence but also that of the
international community at large. The court was sobered by the criminal nature of the
prosecution, but it was freed by Al Mahdi's guilty plea. Al Mahdi is a better illustration of
blocked jurisprudential evolution than the trailblazer that some anticipated.

Last but not least, in order to expand its protection of cultural assets, the court missed the chance
to underline the sites' cultural significance, which is intrinsically tied to but much greater than its
religious (or even historic) importance. The court ruled that in assessing the gravity of Al
Mahdi's offense “that the targeted buildings were not only religious buildings but had also a
symbolic and emotional value for the inhabitants of Timbuktu,”7 with little reference to cultural
relevance. The court ought to have emphasized cultural relevance as the lowest common
denominator among these terms "cultural," "religious," and "historic," as well as these places, in
view of the disparities in scope that experts have drawn attention to. The focus on the sites'
underlying cultural significance is compatible with, and in fact absorbs, their undeniable
religious significance. It also highlights how people who are not from Timbuktu or Muslims
share in the loss of this heritage.

Significance of the case

7
‘Marina Aksenova – EJIL: Talk!’ <https://www.ejiltalk.org/author/maksenova/> accessed 6
July 2022
To the people of Timbuktu, the International Criminal Court delivered a clear message: the
world community values their culture and heritage. It will assist in addressing how the attack by
Ansar Dine has affected the identity and cultural traditions of Mali's Muslim population.8

Additionally, holding those responsible for such crimes accountable sends a clear message to
other groups of a similar nature who may target a particular demographic by destroying cultural
heritage that such behavior will not be accepted. Before the al-Mahdi case, persons whose
cultural legacy had been destroyed had few options, even if such damage had been roundly
denounced. Al-example Mahdi's could motivate increased effort in the prosecution of this kind
of crime.9

The Al Mahdi case also shows how, in practice, international criminal law can find a
compromise between practical efficiency concerns and ethical demands of justice. In August
2016, the trial only lasted three days, during which the defendant pleaded guilt and the
prosecution called three witnesses. The verdict was rendered a year after Mr. Al Mahdi turned
himself in to the ICC. Contrast this with the Lubanga case, which dragged on for nearly ten years
from Mr. Lubanga's arrest in March 2006 to the Appeals Chamber's ruling in December 2014
following the issuance of an ICC warrant.10

Last but not least, the ICC benefits from drawing attention to the destruction of cultural
landmarks in order to maintain its standing as an institution that pursues crimes that "shock"
humanity's conscience. In summary, this is a huge victory for a young and emerging court even
though the implications and impact of the al-Mahdi trial are still unknown.11

8
‘Alumni Perspective: “The Significance of the al-Mahdi Case and the War Crime of
Destruction of Cultural Heritage” | Human Rights @ Harvard LawHuman Rights @ Harvard
Law’ <https://hrp.law.harvard.edu/alumni-news/alumni-perspective-the-significance-of-the-al-
mahdi-case-and-the-war-crime-of-destruction-of-cultural-heritage/> accessed 7 July 2022
9
ibid
10
ibid
11
Kersten M, ‘Some Thoughts on the al Mahdi Trial and Guilty Plea’ (Justice in Conflict, 24
August 2016) <https://justiceinconflict.org/2016/08/24/some-thoughts-on-the-al-mahdi-trial-and-
guilty-plea/> accessed 7 July 2022
In conclusion, the Al Mahdi case has effectively illustrated how the ICC's procedure for
admitting guilt works, how to strike a balance between the needs of justice and expediency, the
symbolic value of preserving shared cultural heritage, and the potential for rehabilitation of those
who receive sentences for committing serious international crimes.

Bibliography

1. ‘The Prosecutor v. Ahmad Al Faqi Al Mahdi. Cultural Heritage and Human Rights -
GRIN’ <https://www.grin.com/document/379110>
2. Emerging Voices: A Case of Firsts for the International Criminal Court: Destruction of
Cultural Heritage as a War Crime, Islamic Extremism and a Guilty Plea - Opinio Juris’
<http://opiniojuris.org/2016/08/09/emerging-voices-a-case-of-firsts-for-the-international-
 criminal-court-destruction-of-cultural-heritage-as-a-war-crime-islamic-extremism-and-a-
guilty-plea/>
3. ‘The Prosecutor v. Ahmad Al Faqi Al Mahdi | ESCR-Net’
<https://www.escr-net.org/caselaw/2016/prosecutor-v-ahmad-al-faqi-al-mahdi>
4. ‘Harvard Law Review’ <https://harvardlawreview.org/>
5. ‘Marina Aksenova – EJIL: Talk!’ <https://www.ejiltalk.org/author/maksenova/>
6. Alumni Perspective: “The Significance of the al-Mahdi Case and the War Crime of
Destruction of Cultural Heritage” | Human Rights @ Harvard LawHuman Rights @
Harvard Law’ <https://hrp.law.harvard.edu/alumni-news/alumni-perspective-the-
significance-of-the-al-mahdi-case-and-the-war-crime-of-destruction-of-cultural-
heritage/>
7. Kersten M, ‘Some Thoughts on the al Mahdi Trial and Guilty Plea’ (Justice in Conflict,
24 August 2016) <https://justiceinconflict.org/2016/08/24/some-thoughts-on-the-al-
mahdi-trial-and-guilty-plea/>