CONTENTS I. INTRODUCTION II. MEANING OF "ATTACK" IN ARTICLE 8 III. ORIGINS OF THE ROME STATUTE CULTURAL PROPERTY PROVISIONS IV. OTHER LEGAL INSTRUMENTS OF RELEVANCE V. THE NEXUS REQUIREMENT VI. GENOCIDE AND CRIMES AGAINST HUMANITY VII. CONCLUDING REMARKS I. INTRODUCTION
On September 27, 2016, Ahmad Al Faqi Al Mahdi was convicted by a Trial Chamber of the International Criminal Court for the crime of directing an attack against buildings dedicated to religion and historic monuments which were not military objectives, pursuant to article 8(2)(e)(iv) of the Rome Statute. Al Mahdi was sentenced to nine years' imprisonment. A month earlier, he had pleaded guilty to the charge at the beginning of his trial, which as a consequence took only a few days.
Pundits heralded the trial with cliches reserved for such occasions-- "landmark," "historic judgment," "breakthrough"--and it seemed as if it was a long-awaited tonic for the struggling institution. This was an easy win for the Court: an expeditious trial of a few days for a contrite defendant previously linked to the global pariah, the "deviant people" of Al Qaeda. (1) But perhaps this gift came at a price that was too good to be true. A closer look at the Rome Statute suggests that Al Mahdi did not commit the crime for which he was convicted.
Al Mahdi admitted responsibility for acts relating to the destruction of several mausoleums and the door of a mosque in Timbuktu, Mali, buildings that had been traditionally used by the local population as part of their religious observance. In 2012, when a rather complex civil war erupted in Mali, the government abandoned the northern provinces and religious extremists associated with Ansar Dine seized control of Timbuktu. The Prosecutor of the International Criminal Court observed that "[t]he Ansar Dine leadership is able to control and govern parts of the territory through local councils established in towns that fell under its control. Additionally, the group reportedly set up a specialized police force in Timbuktu in order to enforce the Sharia law." (2) As an eminent religious personality who had joined the rebels, Al Mahdi delivered a sermon condemning worship at the mausoleums. Subsequently, the rebel administration ordered that the mausoleums be destroyed. Al Mahdi, who presided over a morality tribunal known as the Hisbah, played a crucial role in implementing the decision to destroy (3) the buildings or structures in question, which at the time were classified by UNESCO as "world heritage."
Essentially identical provisions of the Rome Statute, one applicable to international armed conflict and the other to non-international armed conflict, govern the crime of "[i]ntentionally 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." Al Mahdi pleaded guilty to article 8(2)(e)(iv), the text that applies to non-international armed conflict. That the structures targeted by Al Mahdi were "buildings dedicated to religion" or that they were "historic monuments" does not seem to be seriously disputed. It was precisely because of their religious significance, something that did not suit the beliefs of the regime with which Al Mahdi was associated, that they were destroyed. (4) Clearly they did not constitute a "military objective." Although civil war continued in the country, Timbuktu seems to have been securely in the hands of the rebels at the time and would remain so until the first months of the following year. Indeed, based on the record before the Court it does not seem that there was any activity that could be called "military" or "combat" at the time the structures were destroyed. For this reason it is not at all evident that the implementation of the administrative decision to destroy the structures, carried out "with a variety of tools, including pickaxes and iron bars," (5) constituted an "attack" as the term is used in article 8 of the Rome Statute. And if it was not an "attack" as the term is meant in article 8(2)(e)(iv), then Al Mahdi did not commit the offense.
The definitions of crimes set out in the Rome Statute of the International Criminal Court are to be "strictly construed" and may not "be extended by analogy." Moreover, "[i]n case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted." (6) In this respect, the International Criminal Court may differ from other international criminal tribunals that have been set up on a temporary basis and where a more liberal and teleological approach to judicial interpretation has been adopted, usually with reference to the rules of the Vienna Convention on the Law of Treaties. (7) Judge Van den Wyngaert has suggested that "[b]y including this principle in Part III of the Statute, the drafters wanted to make sure that the Court could not engage in the kind of "judicial creativity" of which other jurisdictions may at times have been suspected." (8) Because in contending that the destruction of the buildings in Timbuktu was an "attack," judicial creativity is precisely what is required.
MEANING OF "ATTACK" IN ARTICLE 8
Al Mahdi is the first accused person to be tried for "attacks" on cultural property. Declaring that article 8(2)(e)(iv) has not previously been applied by the Court, the Trial Chamber said it would "proceed to interpret this crime and its elements." (9) It did not cite any case law to support its conclusions. The Trial Chamber said case law of the Court pertaining to attacks against civilian population "does not offer guidance." (10) As for the International Criminal Tribunal for the former Yugoslavia, which has issued several decisions concerning attacks on and destruction of cultural property, the Chamber said it is "limited guidance" because the relevant legal text was not the same. (11) Actually, there is a lot of relevant case law that the Chamber ought to have considered.
In ordinary usage, the term "attack" is not the word that would be used to describe the demolition or destruction of structures, using implements that are not weapons or military in nature, and where armed adversaries are not to be found within hundreds of kilometers. It is true that the Rome Statute contemplates an "attack" that takes place in peacetime, but this is in the provision dealing with crimes against humanity, not war crimes. Moreover, elsewhere in article 8, the Rome Statute defines some crimes that involve "destruction," and this might suggest that "attack" and "destruction" are not synonymous. The Chambers of the International Criminal Court as well as those of the International Criminal Tribunal for the former Yugoslavia have considered the meaning of the word "attack" as it is used in the definitions of war crimes on many occasions.
The words "[I]ntentionally directing attacks" are used in eight subparagraphs of article 8, the war crimes provision of the Rome Statute. Neither the Statute itself nor the Elements of Crimes, adopted pursuant to article 9 to supplement the Statute, indicate a definition of the word "attacks." The provisions of article 8 are derived from various treaties governing the law of armed conflict, notably the Hague Conventions of 1899 and 1907, the Geneva Conventions of 1949 and their Additional Protocols of 1977. Article 49 of Additional Protocol I is entitled "Definition of attacks and scope of application." (12) Paragraph 1 of article 49 states that '"Attacks' means acts of violence against the adversary, whether in offence or in defense."
Several decisions of Chambers of the Court rely upon article 49(1) of Additional Protocol I in order to construe the word "attacks" as it is used in various sub-paragraphs of article 8 of the Statute. (13) In Abu Garda, a Pre-Trial Chamber justified recourse to article 49(1) by noting the reference in article 8(2)(e) to "the established framework of international law" as well as that in article 21(2) to applicable treaties and the principles and rules of international law, including the established principles of "the international law of armed conflict." (14) The Chamber said that although article 49(1) of Additional Protocol I only applied to international armed conflict, "this term is given the same meaning in article 13(2) of Additional Protocol II ("APII"), which applies to armed conflicts not of an international character." (15)
Basing itself on article 3 of its Statute, the International Criminal Tribunal for the former Yugoslavia has confirmed the customary nature of war crimes involving the direction of attacks against civilian objects. Referring to article 49(1) of Additional Protocol I, the Tribunal has consistently confirmed the technical meaning to be given to the term "attack" of acts of violence, committed during combat using "armed force" in a "military operation." (16)
That "attacks" is to be interpreted with reference to article 49(1) of Additional Protocol I is also confirmed in the authoritative academic commentary on the Elements of Crimes published under the auspices of the International Committee of the Red Cross. With respect to the various provisions of article 8 that concern "attacks," the Commentary says that "[t]he concept of attack as defined in this provision refers to the use of armed force to carry out a military operation during the course of an armed conflict." (17) Discussing the term "attack" as it is used in article 8 in his contribution to the Triffterer Commentary, Knut Dormann wrote:
The term "attack" is specifically defined for IHL purposes and means acts of violence against the adversary, whether in offense or in defence (article 49 para. 1 Add. Prot I). Its meaning is unrelated to meanings given to the same term under ius ad bellum. It refers to any combat action, thus offensive acts and defensive acts (sometimes...