First Ever International Criminal Court War Crimes Trial for Destroying Historical Monuments Gets Underway

A Confirmation of Charges hearing was held on March 1 in the Hague, Netherlands in the case of Prosecutor v. Ahmad Al Faqi Al Mahdi. While all that may sound prosaic, if the case proceeds, it would be the first ever International Criminal Court (ICC) war crimes trial where the main charge is the destruction of religious buildings and historic monuments. A decision from the three judge panel as to whether the case can proceed is expected within 60 days.
The case arose out of attacks on heritage sites in Timbuktu, Mali by armed groups who occupied the city in 2012.  Poignantly, the hearing occurred only four weeks after  a consecration ceremony was held in Timbuktu on February 4 , 2016, to mark the completion of the final phase of the restoration of certain of the Timbuktu mausoleums after their 2012 destruction. The ceremony, held at the Mosque of Djingareyber (which is not one of those at issue in the ICC trial), began in the early morning hours with the sacrifice of animals and reading of Quranic verses. It was intended to invoke the divine mercy to provide the basis for peace, cohesion and tranquility. During the program, Almamy Koureissi, speaking on behalf of the Minister of Culture, Handicrafts and Tourism of Mali, remarked: “Culture is at the heart of government action because we have found our bearings, our cultural values. We need to embrace our moral center, to remain standing, open to the world, welcoming and hospitable in accordance with our legendary traditions.”
Before the March 1 hearing, Chief ICC prosecutor Fatou Bensouda had said “[t]he charges we have brought against Ahmad al-Faqi al-Mahdi involve most serious crimes . . . They are about the destruction of irreplaceable historic monuments, and they are about a callous assault on the dignity and identity of entire populations, and their religious and historical roots.”  At the hearing, she added : “Let us be clear: what is at stake is not just walls and stones. The destroyed mausoleums were important, from a religious point of view, from an historical point of view, and from an identity point of view.” Bensouda continued, “Such an attack against buildings dedicated to religion and historic monuments falls into the category of crimes that destroy the roots of an entire people and profoundly and irremediably affect its social practices and structures.”
40-year old Mr. Ahmad al-Faqi al-Mahdi, who is said to be a brigade commander in Ansar Dine, a militant Islamist group associated with al-Qaeda in the Islamic Maghreb (AQIM), is accused of committing a war crime through his involvement in the destruction of nine mausoleums and one mosque in Timbuktu, Mali over an 10-day period in 2012. The Mosque, Sidi Yahya, was built around 1400 by the marabout Sheik El Moktar Hamalla and is part of the Timbuktu UNESCO World Heritage Site. Around 4,000 ancient manuscripts were also lost, stolen or burned during the events.
The prosecution wants the defendant charged under Article 8(2)(e)(iv) of the court’s founding law, the Rome Statute, which defines “war crimes” to include:

Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:  . . .
(iv) 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.

In brief remarks at the hearing, defense counsel suggested that the defense would make the argument that mosques and tombs per se were not destroyed but only their coverings and that this was consistent with the attacker’s view of Fundamentalism, making their actions a “political project that is not a crime.”
The Malian case is obviously only one of a series of heartbreaking modern examples of the intentional destruction of historic monuments.  The shelling of Dubrovnik and the destruction of the Bamiyan Buddhas are but two other examples.  As a result, some have wondered why this case has been prosecuted before the ICC when others were not. Alex Whiting, a Professor of Practice at Harvard Law School, who formerly served as Prosecution Coordinator at the ICC and before that as an Attorney with the International Criminal Tribunal for the Former Yugoslavia, has offered this explanation in the online forum Just Security:

Timing is everything. At a different moment, there might have been questions about why the Prosecutor would make this her first case, particularly since she opened the Mali investigation nearly three years ago on the basis of allegations of murder, mutilation, torture and rape. But over the last year, attacks against cultural heritage have received prominent attention due to ISIS’s relentless campaign to destroy Christian and Muslim shrines, ancient sites, and artifacts. Last month, ISIS destroyed ancient Roman temples in Palmyra in Syria, dating from the third century. Since 2014, mosques, monasteries, churches and historical sites have been destroyed across Syria and Iraq. In Mosul, the libraries, universities and museum were rampaged and looted.
ISIS and Ansar Dine are certainly not the first groups to target cultural heritage. The Taliban destroyed two Buddhist statues in the Bamiyan Valley in 2001, and attacks on cultural and religious sites were prominent during the wars in the former Yugoslavia. But in prosecutions of war crimes, crimes against humanity, and genocide, cultural attacks can often get lost among charges involving massive atrocities committed against civilian populations. Now the Prosecutor’s new case in Mali puts the war crime of attacking religious and historical sites front and center as an international crime.

One of the lawyers who made arguments for the ICC Prosecutor on Tuesday was Colin L. Black of the United States.  Attorney Black is a graduate of the Tulane School of Law where, fittingly, he authored a Comment for the Tulane Law Review entitled “The Free Exercise Clause and Historic Preservation Law: Suggestions for a More Coherent Free Exercise Analysis.”
Timbuktu is located in northern Mali at the gateway to the Sahara desert. As the home of the prestigious Koranic Sankore University and other madrasas, Timbuktu was an intellectual and spiritual capital and a center for the propagation of Islam throughout Africa in the 15th and 16th centuries. Its three great mosques, Djingareyber, Sankore and Sidi Yahia, recall Timbuktu’s golden age.  According to the World Heritage inscription, these Mosques, sixteen mausoleums and holy public places, still bear witness to this prestigious past. The mosques are exceptional examples of earthen architecture and of traditional maintenance techniques, which continue to the present time.
Three years after their destruction by extremists, the Timbuktu mausoleums were restored through the extraordinary work carried out by local craftsmen through a program put in place by UNESCO with the support of numerous financial and technical partners including the European Union, Switzerland, Norway, France and the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA).

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