THE ICC'S ROLE IN COMBATTING THE DESTRUCTION OF CULTURAL HERITAGE.

• Author: Ellis, Mark S.
• Position: International Criminal Court - The Art of International Law

CONTENTS I. INTRODUCTION II. LEGAL FRAMEWORK AND CASE SIGNIFICANCE A. The Reason for the 1954 Convention 1. Relevant Provisions of the 1954 Convention 2. Second Protocol to the 1954 Convention (1999) B. The Rome Statute of the ICC III. THE ROLE OF THE ICTY A. ICTY Jurisprudence 1. Gravity of the Crime(s) 2. Establishing Individual Criminal Responsibility and Other Requirements for Prosecution 3. Actus Reus and Mens Rea B. ICTY and Crimes Against Humanity IV. POLITICAL WILL AND THE DUTY TO PROTECT A. The Emergency Safeguarding of the Syrian Cultural Heritage Project B. Iraq Heritage Management Project V. CONCLUSION Cultural destruction is a systematic assault on the spirit and soul of a people. The [International Criminal] Court must prosecute; there should be no impunity for these types of crimes. (1)

1. INTRODUCTION

   The willful destruction of cultural property is in no sense a modern phenomenon. Increasingly, however, this centuries-old practice has become as much an instrument as a consequence of war, and is now classified an international crime. (2) While prosecutions are recent, (3) statutory and treaty law dating to the Geneva Convention and Nuremberg Trials provide important jurisprudence regarding crimes of cultural destruction, (4) and the International Criminal Tribunal for the former Yugoslavia (ICTY) has been particularly active in pursuing accountability. (5)

   Ahmad Al Faqi Al Mahdi's indictment by the International Criminal Court (ICC), on September 18, 2015, on charges of destroying cultural heritage sites in Timbuktu, (6) underscored the legal connection between the destruction of property and the attempt to erase history and memory.

   The case of Prosecutor v. Ahmad Al Faqi Al Mahdi (7) is noteworthy for several reasons. First, Al Mahdi is the first member of an Islamist armed group to appear before the ICC. (8) Second, it is the first ICC case in which the defendant made an admission of guilt. (9) Third, it is the only instance to date in which the war crime of destroying cultural heritage has been the primary subject matter in a case before the ICC. (10)

   The case has attracted criticism from those who believe that property crimes are secondary to crimes such as rape, torture and murder. (11) Indeed, even the ICTY, which has been assiduous in its rulings concerning cultural treasures, (12) has tended to prioritize other "more serious" crimes rather than focus on cultural property cases alone. (13)

   However, the case's firm grounding in international law, and the clear connection between a category of cultural-property crimes and attempts at cultural erasure, challenges the notion that these are second-rate crimes. The case reinforces the legal principle that attacks on culture, like attacks against people, constitute war crimes subject to international criminal prosecution. The Al Mahdi case will be significant in determining how the international community should best deal with such abhorrent attacks in the future.

   On July 18, 2012, the Malian Government referred the case to the ICC. (14) In July 2012, the Office of the Prosecutor (OTP) started a preliminary examination to decide whether it was reasonable to launch a formal investigation. (15)

   On the basis of the preliminary investigation, the Prosecutor declared there was a reasonable basis to consider that international crimes were committed including: (1) murder (constituting a war crime under article 8(2)(c)(i)); (2) mutilation, cruel treatment and torture (article 8(2)(c)(i)); (3) intentionally directing attacks against protected objects (article 8(2)(e)(iv)); (4) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court (article 8(2)(c)(iv)); (5) pillaging (article 8(2)(e)(v)), and (6) rape (article 8(2)(e)(vi)). (16) The case was assigned to Pre-Trial Chamber I. (17)

   On September 18, 2015, the Court issued an arrest warrant for A1 Mahdi. (18) Eight days later (September 26, 2015), he was surrendered by Niger authorities and transferred to The Hague. (19) Al Mahdi appeared before the ICC, on September 30, 2015, charged with the war crime of destroying Mali's cultural heritage. (20) Al Mahdi is one of several people under investigation for war crimes committed during the civil war in Mali, but is the first to appear in The Hague. (21)

   As indicated earlier, critics have questioned whether Al Mahdi is the type of perpetrator that the ICC should be interested in. (22) The prosecution has been criticised for launching a case narrowly focused "only on cultural crimes and psychological harm." (23) Bintou Foune Samake, president of the Malian NGO Women in Law and Development (WILDAF) has highlighted that there are "a large number of victims in Timbuktu and the North of Mali, particularly children and young women who experienced forced marriage and other sexual crimes" and that those victims "feel abandoned since they don't have access to justice neither in Mali nor at the ICC." (24) The International Federation for Human Rights (FIDH) has urged prosecutors not to let cultural damage overshadow violence against individuals, (25) and an editorial in the New York Times argued that a case such as the one against Al Mahdi--a prosecution for cultural crimes--"must proceed in tandem with accountability for all war crimes and crimes against humanity." (26)

   This criticism is demonstrably wrong, both in terms of law and ethics. ICC Prosecutor Fatou Bensouda is absolutely right in seeking accountability for the violent attacks on Mali's cultural heritage.

   The attacks in Mali against cultural property caused damage to the targeted areas and significant distress to the local population. (27) A1 Mahdi, a member of the Islamist militant group Ansar Dine, was accused of intentionally directing attacks, either individually or jointly, against historic monuments and/or buildings dedicated to religion, including nine mausoleums and one mosque. (28) The monuments, revered for their age, craftsmanship, and cultural significance, are viewed as "living human treasures." (29) When Ansar Dine seized the ancient city of Timbuktu in 2012, they systematically razed Muslim holy sites; (30) all but one was inscribed on the World Heritage List. (31) Timbuktu, known as the "City of 333 Saints," was an important crossroads in the development of Islam in Africa. (32) Now, centuries of culture lay crumbled in ruins, and ancient manuscripts have been irretrievably lost. (33) The ICC Prosecutor has eloquently described the impact of the loss:

   To destroy Timbuktu's mausoleums is therefore to erase an element of collective identity built through the ages. It is to eradicate a civilisation's landmark. It is the destruction of the roots of an entire people, which irremediably affects its social attitudes, practices and structures. [An] inhabitant of Timbuktu summarized this notion as follows: "Timbuktu is on the verge of losing her soul; Timbuktu is threatened by outrageous acts of vandalism; Timbuktu is being held under a sharpened blade ready for use in a cold-blooded murder. (34) Al Mahdi, as head of the Hisbah, or morality brigade, personally directed and oversaw the attack against the ten buildings in question. (35) His actions were extensive:

   He selected the sites to be destroyed. He determined the sequence in which the acts of destruction would take place, moving from the north to the south of the city. He provided the material resources. He gave instructions ... He ensured that he was present at every single site that was targeted and destroyed. (36) In the end, the Prosecutor's position has been vindicated. Mr. A (1) Mahdi admitted to the war crimes charges. (37) At his trial, Al Mahdi sought forgiveness:

   I would like to remember the words of those who said that we need to speak justice even against ourselves. We have to be true to ourselves even that truthfulness would burn our hands. Ladies and gentlemen, it is with deep regret and with great pain I had to enter a Guilty plea and all the charges brought against me are accurate and correct. I am really sorry. I am really remorseful and I regret all the damage that my actions have caused. I regret what I have caused to my family; my community in Timbuktu; what I have caused my home nation, Mali; and I am really remorseful for what I have caused the international community as a whole. My regret is directed particularly to the generations, the ancestors of the holders of the mausoleums that I have destroyed. I would like to seek the pardon of the whole people of Timbuktu. I would like to make them a solemn promise that this was the first and the last wrongful act that I will ever commit. I seek their forgiveness and I would like them to look at me as a son that has lost his way and consider me part of the social fabric that is Timbuktu and must not forget what I have contributed in the past to Timbuktu. (38) Prosecutor Bensouda called Al Mahdi's admission of guilt a "milestone" in the history of the Court. (39) She rightfully described the case as follows:

   [I]t is all the more historic in view of the destructive rage that marks our times, in which humanity's common heritage is subject to repeated and planned ravages by individuals and groups whose goal is to eradicate any representation of a world that differs from theirs by eliminating the physical manifestations that are at the heart of communities. The differences and values of these communities are thus simply denied and annihilated." (40) Because Al Mahdi admitted guilt, the trial lasted only a few days. (41) It opened on August 22, 2016, before Trial Chamber VIII. (42) Mr. Al Mahdi pled guilty to the war crime of destroying historical and religious monuments in Timbuktu (Mali) during the period of June 30, 2012, to July 11, 2012. (43)

   The trial concluded on August 24, 2016. (44) On September 27, 2016, Al Mahdi was sentenced to nine years in jail. (45)

   A full trial would have had the...