INDIVIDUAL CRIMINAL RESPONSIBILITY FOR THE DESTRUCTION OF RELIGIOUS AND HISTORIC BUILDINGS: THE AL MAHDI CASE.

• Author: Sterio, Milena
• Position: The Art of International Law

Ahmad Al Faqi Al Mahdi, also known as Abou Tourab, was a member of the radical Islamic group Ansar Eddine, serving as one of four commanders during its brutal occupation of Timbuktu in 2012. The International Criminal Court (ICC) indicted Al Mahdi on several charges of war crimes, for intentional attacks against ten religious and historic buildings and monuments. All the buildings which Al Mahdi was charged with attacking had been under UNESCO protection, and most had been listed as world heritage sites.

The case against Al Mahdi at the ICC unfolded relatively quickly and efficiently, from the official Malian referral of the case to the ICC until the end of the trial when the defendant, who had pled guilty, was sentenced. Al Mahdi's initial arrest caught many by surprise. While he was detained in a prison in Niger, ICC authorities issued a sealed warrant for his arrest, sent representatives to meet with Niger government officials, and transferred him to the ICC detention facility at The Hague. In addition, Al Mahdi's arrest and prosecution at the ICC have sparked controversy because of the court's decision to pursue a little-known defendant for a relatively insignificant crime. Others, however, have applauded the ICC's prosecution of Al Mahdi as a victory for the institution and a ground-breaking legal precedent. This article analyzes the A l Mahdi case and argues that his conviction will not only constitute an important precedent for the ICC, but also contribute toward the tribunal's overall legitimacy.

CONTENTS I. INTRODUCTION AND FACTUAL BACKGROUND II. AL MAHDI: A BIG VICTORY FOR THE ICC? III. AL MAHDI: AN IMPROPER USE OF ICC RESOURCES? A. Gravity B. Complementarity IV. CONCLUSION I. INTRODUCTION AND FACTUAL BACKGROUND

Ahmad Al Faqi Al Mahdi, also known as Abou Tourab, was a member of the radical Islamic group Ansar Eddine, a Malian armed jihadist group linked to al-Qaeda in the Islamic Maghreb (AQIM). (1) Al Mahdi was born in a city called Agoune, approximately 100 kilometers west of Timbuktu in Mali. (2) Al Mahdi served as head of the Islamic Police in Timbuktu, and was one of the four commanders of Ansar Eddine during its brutal occupation of Timbuktu in 2012. (3) A Tuareg armed rebellion erupted in the north of Mali in January 2012, when the so-called National Liberation Movement of Azawad launched an offensive. (4) Other Islamist groups present in the geographic area, including Ansar Eddine, quickly joined the offensive. (5) Various hostilities took place during this time, most in flagrant violation of international humanitarian law. (6) Several northern cities were captured by the rebelling groups from early April 2012 until January 2013, when French and Malian troops intervened to suppress the rebellion. (7) Between June 2012 and July 2012, Timbuktu came under the control of Ansar Eddine and another Islamist group. (8) During this time, Al Mahdi worked closely with the leaders of all the armed groups in the area, and, according to the allegations asserted against Al Mahdi, played an active role in the occupation of Timbuktu. (9)

The International Criminal Court (ICC) indicted Al Mahdi on several charges of war crimes, specifically intentional attacks against ten religious and historic buildings and monuments. (10) Article 8.2(e)(iv) of the Rome Statute of the International Criminal Court provides that war crimes include "intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives." (11) All the buildings which Al Mahdi was charged with attacking had been under UNESCO protection, and most had been listed as world heritage sites. (12)

The Al Mahdi case at the ICC unfolded relatively quickly and efficiently, from the official Malian referral of the case to the ICC until the end of the Al Mahdi trial. (13) The Malian government itself referred the situation in Mali to the court in 2012. (14) The Office of the Prosecutor (OTP) then opened an official investigation into alleged crimes committed in Mali in January 2013, and in February 2013, the Malian government and the ICC signed a cooperation agreement in accordance with Section IX of the Rome Statute. (150 On September 18, 2015, the ICC Pre-Trial Chamber I issued an arrest warrant against Al Mahdi. (16) On September 26, 2015, he was transferred to ICC authorities by the government of Niger. (17)

Al Mahdi's arrest caught many by surprise. While he was detained in a prison in Niger, the ICC authorities issued a sealed warrant for his arrest, sent representatives to meet with Niger government officials, and transferred the defendant to the ICC detention facility at The Hague. (18) On March 24, 2016, charges against Al Mahdi, consisting of war crimes constituted by attacks against religious and cultural sites, were confirmed by Pre-Trial Chamber I. (19) In addition to the ICC's charges against Al Mahdi, human rights groups accused Al Mahdi of other crimes, and have encouraged the OTP to consider credible allegations of Al Mahdi's involvement in crimes committed against civilians, including rape, sexual slavery, and forced marriage. (20) Al Mahdi indicated that he would plead guilty on March 1, 2016; his trial opened on August 22 and concluded within a...