International Criminal Court - Rome statute - war crimes - destruction of cultural property -UNESCO designation - co-perpetration - guilty plea.

Author:Stewart, David P.
 
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PROSECUTOR V. AHMAD AL FAQI AL MAHDI. Case No. ICC-01/12-01/15. Judgment and Sentence. At https://www.icc-cpi.int/CourtRecords/CR2016_07244.PDF. International Criminal Court, Trial Chamber, September 27, 2016.

On September 27, 2016, the Trial Chamber (Chamber) of the International Criminal Court (ICC or tribunal) rendered its judgment in Prosecutor v. Ahmad Al Faqi Al Mahdi, (1) wherein the defendant was convicted of the war crime of intentionally directing attacks on protected cultural objects. It is the ICC's first such conviction and the first time that an accused has entered a guilty plea at the tribunal pursuant to Article 65 of the Rome Statute (Statute). Al Mahdi pled guilty to co-perpetrating attacks on protected objects pursuant to Article 8(2)(e)(iv) of the Statute for his role in the attack on, and destruction of, ten mosques and mausoleums in Timbuktu. (2) The Trial Chamber sentenced him to nine years in prison.

In January 2012, an armed conflict began in Mali between several armed groups and the Malian armed forces. The armed groups, Ansar Dine and Al Qaeda in the Islamic Maghrib (AQIM), took control of Timbuktu in April 2012 and imposed religious and political rule over the territory until January 2013. They installed a local government that included an Islamic tribunal, police force, media commission, and morality brigade (Hesbah). Al Mahdi arrived in Mali in April 2012, and from April to September 2012 he served as the head of the Hesbah, consulting with the Islamic tribunal as an expert in religious matters. At the request of the Ansar Dine and AQIM leadership, he monitored the mausoleums and cemeteries of Timbuktu to take note of local inhabitants' behavior at the sites and to raise awareness of the recent prohibition of their practices (paras. 31-35).

In late June 2012, the Ansar Dine and AQIM leadership made the decision to destroy the mausoleums and it communicated these instructions to Al Mahdi. Although he initially argued against the plan, he later facilitated its implementation by procuring tools and machinery, arranging logistics, determining the sequence of actions, supervising the execution of those actions, and actively participating in the destruction of mausoleums on five occasions. Moreover, he publicized the attack by giving a sermon prior to the attack and by speaking to journalists during the course of the attack (paras. 36-37).

The attack on Timbuktu's mosques and mausoleums was carried out between June 30 and July 11, 2012 and resulted in the destruction often of the most important and well-known sites in Timbuktu" (3) (para. 38). The Chamber determined that it took place during a non-international armed conflict that met the "minimum level of intensity to be distinguished from mere internal disturbances and tensions" and that both Ansar Dine and AQIM qualified as organized armed groups, based on their "military capacity to displace the Malian army, capture Timbuktu and exercise some form of government over it for approximately nine months" (para. 49).

The ICC issued a warrant for Al Mahdi's arrest on September 18, 2015, and following his capture by the authorities of Niger, he was transferred to The Hague on September 26, 2015. (4) On December 17, 2015, the ICC Office of the Prosecutor filed charges against him under Article 8(2)(e)(iv) for "intentionally directing attacks" against ten buildings of "religious and historical character in Timbuktu, Mali" between June 30, 2012 and July 11, 2012 (para. 10).

The parties reached a plea agreement on February 18, 2016. The trial was held in The Hague from August 22 until August 24, 2016, and the Chamber's judgment was issued on September 27, 2016.

Based on Al Mahdi's statements and the evidence presented in the case, the Chamber found that as head of the Hesbah, Al Mahdi was responsible for: (1) executing a deliberate attack with a "common modus operandi... from common tools to armed guards protecting the attackers"; and (2) a stated purpose of destroying ten sites that qualified as "religious buildings and historic monuments" based on their "role in the cultural life in Timbuktu" and their recognition as UNESCO World Heritage sites (paras. 46-48). Noting that Article 25(3)(a) of the Statute distinguishes between liability as "a principal" and liability as "an accessory," the Chamber determined that Al Mahdi's role in the attack best fit the former because he had made an essential contribution to the crime by participating directly in the planning, preparation, and logistical coordination of the attack, identifying the sequence of the attack, and then publicly justifying it. Because he did so pursuant to an agreement with others, the Chamber found him liable as a co-perpetrator. (5)

The Chamber also noted that Al Mahdi's position in the Hesbah and his communications with the leadership of Ansar Dine and AQIM meant that he could have frustrated the commission of the crime (but did not do so) (para. 53). Given his...

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