The Prosecutor v. Ahmad Al Faqi Al Mahdi

Court	International Criminal Court (Trial Chamber VIII), The Netherlands
Case number	ICC-01/12-01/15
Decision title	Judgement and Sentence
Decision date	27 September 2016
Parties	Office of the Prosecutor: Represented by Ms. Fatou Bensouda, Mr. James Stewart, and Mr. Gilles Dutertre. Counsel for the Defence: Mr. Mohamed Aouini and Mr. Jean-Louis Gilissen, representing Mr. Ahmad Al Faqi Al Mahdi. Legal Representatives of Victims: Mr. Mayombo Kassongo.
Other names	Al Mahdi Case
Categories	War crimes
Keywords	non-international armed conflict, destruction of property, Destruction/appropriation of property , group, national, ethnic, racial, religious, intent to destroy, manifest pattern, war crime
Links	https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2016_07244.PDF

Summary

The case of The Prosecutor v. Ahmad Al Faqi Al Mahdi, adjudicated by the International Criminal Court (ICC), represents a landmark legal proceeding focused on the protection of cultural heritage during armed conflict. Ahmad Al Faqi Al Mahdi, an Islamist militant, was charged with the war crime of deliberately attacking historic and religious monuments in Timbuktu, Mali, in 2012. These sites, revered for their historical and cultural significance, were targeted during a period of armed conflict in the region.

Al Mahdi's case is notable for several reasons. Firstly, it was one of the first instances where an individual was prosecuted at the ICC solely for the destruction of cultural heritage. This underscored the increasing international recognition of the importance of preserving cultural history amidst armed conflicts. Secondly, Al Mahdi's admission of guilt – a rare occurrence in international criminal law – expedited the legal proceedings and highlighted the potential for reconciliation and acknowledgment of wrongdoing in such contexts.

Ultimately, Al Mahdi was convicted under Articles 8(2)(e)(iv) and 25(3)(a) of the Rome Statute and was sentenced to nine years in prison. His conviction served as a significant precedent, reinforcing the message that the intentional destruction of cultural heritage is a serious crime under international law and will not be tolerated.

Procedural history

The Government of Mali referred the situation in Mali to the Court on 13 July 2012. The Office of the Prosecutor, after having conducted a preliminary examination of the situation, opened an investigation on 16 January 2013 into alleged crimes committed in the territory of Mali since January 2012.

On 18 September 2015, the Single Judge of Pre-Trial Chamber I issued an arrest warrant for Mr. Ahmad Al Faqi Al Mahdi. He was transferred to The Hague on 26 September 2015, and his first appearance in court occurred on 30 September 2015.

The Office of the Prosecutor filed a document containing a single charge against Mr. Al Mahdi on 17 December 2015, alleging his responsibility for the war crime of attacking protected objects. On 18 February 2016, a plea agreement was reached regarding this charge.

The Pre-Trial Chamber confirmed the charge on 24 March 2016. Trial Chamber VIII was constituted for this case on 2 May 2016. The Chamber held its first status conference on 24 May 2016. It was decided that, in the event of a conviction, judgment and sentencing would be rendered simultaneously. Additionally, the evidence from the confirmation phase was accepted for the purposes of an Article 65 determination.

On 8 June 2016, a Legal Representative of Victims was appointed, with nine victims participating in the trial proceedings.

The trial took place between 22 and 24 August 2016, during which Mr. Al Mahdi admitted his guilt. Oral submissions for judgment and sentencing were completed, and the Prosecution presented three witnesses. Throughout the trial, the Chamber issued a total of 18 written decisions, 12 oral decisions, and 37 e-mail decisions.

Related developments

On 17 August 2017, Trial Chamber VIII issued a Reparations Order concluding that Mr Al Mahdi is liable for 2.7 million euros in expenses for individual and collective reparations for the community of Timbuktu for intentionally directing attacks against religious and historic buildings in that city. Noting that Mr Al Mahdi is indigent, the Chamber encourages the Trust Fund for Victims (TFV) to complement the reparations award and directed the TFV to submit a draft implementation plan by 16 February 2018, including the objectives, outcomes and necessary activities. The Legal Representatives of Victims (LFV) and Counsel for the Defence may file any observations on the draft plan within 30 days of its notification. Upon subsequent approval by the Chamber, the TFV will then identify projects and discrete implementation partners for the Chamber’s final approval. On 8 March 2018, the Appeals Chamber confirmed, for the most part, the Reparations Order in the case.

On 25 November 2021, the Appeals Chamber conducted a review of Mr. Al Mahdi’s sentence, given that two thirds of his sentence had been served (pursuant to Article 110(3), Rome Statute). Owing to Mr. Al Madhi’s willingness to cooperate with the Court and his prospects for resocialization, the Appeals Chamber decided to reduce his sentence by two years (here, para. 75). Mr. Al Mahdi was due to be released on 18 September 2022.

Legally relevant facts

Mr. Al Mahdi was charged with intentionally directing attacks against ten buildings of religious and historical character in Timbuktu, Mali, between around 30 June 2012 and 11 July 2012. The specific buildings targeted included the Sidi Mahamoud Ben Omar Mohamed Aquit Mausoleum and the Sheikh Mohamed Mahmoud Al Arawani Mausoleum, among others (para. 10).

The case involved several key legal submissions:

Defence Sentencing Observations: ICC-01/12-01/15-141-Corr-Red, 22 July 2016.

Prosecution Sentencing Observations: ICC-01/12-01/15-139-Red, 22 July 2016.

Legal Representative of Victims (LRV) Sentencing Observations: ICC-01/12-01/15-135-Conf, 22 July 2016.

Registry Observations on Mr. Ahmad Al Faqi Al Mahdi’s Solvency and Conduct while in Detention: ICC-01/12-01/15-134-Conf, 21 July 2016.

Several key documents were referenced in the case regarding agreed facts and witness statements, including:

First Agreed Facts: ICC-01/12-01/15-54-Conf-AnxA.

Witness statements: MLI-DEF-0001-0001, MLI-DEF-0002-0001.

Statements by Mr. Al Mahdi: MLI-OTP-0033-4511, MLI-OTP-0033-4523.

These documents provided crucial information about the circumstances and actions surrounding the attacks (paras. 9-10).These documents can be viewed in the transcript of the hearings (here).

Core legal questions

Was Mr. Al Mahdi responsible for intentionally attacking protected objects as a co-perpetrator under Articles 8(2)(e)(iv) and 25(3)(a) of the ICC Statute?

Specific legal rules and provisions

Judgment:

Crime charged: Article 8(2)(e)(iv) of the Rome Statute.

Modes of liability: Article 25(3)(a) of the Rome Statute.

Article 65 of the Rome Statute.

Sentence:

Articles 23, 76, 77, and 78 of the Rome Statute and Rule 145 of the Rules of Procedure and Evidence (‘Rules’).

Rule 145 of the Rules: This rule relates to the determination of sentences, considering various factors including mitigating circumstances and the gravity of the crime.

Article 77(2) of the Rome Statute and Rules 146 and 147 of the Rules: Referenced in the context of determining the appropriate penalty, specifically addressing the imposition of fines or forfeiture.

Article 78(2) of the Rome Statute: Pertains to the deduction of time spent in detention from the sentence.

Court's holding and analysis

Direct Perpetration and Co-perpetration (Article 25(3)(a)):

The Chamber confirmed Mr. Al Mahdi's direct perpetration in the destruction of five buildings and considered him responsible for both direct perpetration and co-perpetration. The Prosecution suggested conviction as a co-perpetrator, rather than direct perpetrator, ‘would fully and accurately reflect the Accused’s individual criminal responsibility’ (para. 59), which the Chamber followed (para. 64).

Other Modes of Liability:

Mr. Al Mahdi accepted all charged modes of liability, including co-perpetration, under various subsections of Article 25(3). The Chamber noted the distinction between principal and accessorial liability (para. 58).

War Crime of Attacking Protected Objects:

The Chamber found all elements for the war crime of attacking protected objects established, referencing Mr. Al Mahdi’s involvement in planning and preparing the attack and his role as head of the Hesbah (para. 53).

The Chamber also noted the choice of the sequence in which the buildings would be destroyed and Mr. Al Mahdi’s role as a media spokesperson, fulfilling the subjective elements of the crimes (para. 55).

Gravity of the Crime:

The gravity of the crime was discussed, focusing on the extent of damage, the nature of the unlawful behavior, and the circumstances of the crime. The Chamber noted the unique aspect of the crime being against cultural heritage (para. 76).

Facts of the Case:

The document details Mr. Al Mahdi's responsibility in the execution phase of destroying 10 mausoleums and mosques, including those designated as UNESCO World Heritage sites (para. 46).

Further analysis

Paige Casaly, ‘Al Mahdi before the ICC: Cultural Property and World Heritage in International Criminal Law’, Journal of International Criminal Justice, Vol14(5), 2016, pp. 1199–1220.

Alice Curci, 'The Prosecutor v. Al Mahdi and the Destruction of Cultural Heritage: Property Crime or Crime against Humanity?', 23 UCLA J. Int'l L. Foreign Aff., 2019, pp. 159-182.

Milena Sterio, ‘Individual Criminal Responsibility for the Destruction of Religious and Historic Buildings: The Al Mahdi Case’, Case Western Reserve Journal of International Law, vol. 49, 2017, pp. 63-74.

William Schabas, ‘Al Mahdi Has Been Convicted of a Crime He Did Not Commit’, Case Western Reserve Journal of International Law, vol. 49, 2017, pp. 75-102.

Juan Pablo Perez Leon Acevedo and Thiago Alves Pinto, ‘Enforcing Freedom of Religion or Belief in Cases Involving Attacks Against Buildings Dedicated to Religion: The Al Mahdi Case at the International Criminal Court', Berkeley Journal of International Law (BJIL), Vol. 37, No. 3, 2020, pp. 437-480.

Karolina Wierczyńska and Andrzej Jakubowski, ‘Individual Responsibility of Cultural Heritage: Contextualizing the ICC Judgment in the Al-Mahdi Case’, Chinese Journal of International Law, Vol. 16, Issue 4, December 2017, pp. 695-721.