Kristin Hausler, a research fellow at the British Institute of International and Comparative Law, comments on the ICC's recent ruling on a case involving the destruction of cultural heritage in Mali.
Ahmad Al Faqi Al Mahdi was sentenced for his part in the destruction of mausoleums and a mosque in Timbuktu, Mali sikorski
On 27 September, Trial Chamber VIII of the International Criminal Court (ICC) sentenced Ahmad Al Faqi Al Mahdi to nine years in prison for having intentionally directed attacks against nine mausoleums and a mosque in Timbuktu, most of which were listed as UNESCO World Heritage sites.
These attacks, which took place over a period of ten days in late June and early July 2012, had been immediately condemned by the United Nations Security Council in its resolution 2056 of 5 July 2012. A week later, Mali referred its situation to the ICC, which opened an investigation and eventually issued an arrest warrant for Mr Al Mahdi, who was surrendered to the Court by the authorities of Niger on 26 September 2015.
The ICC Statute provides that intentionally directing attacks against buildings dedicated to religion or historic monuments constitutes a war crime in both international and non-international armed conflicts. In 2012, when the buildings in question were destroyed, Northern Mali was in a situation of non-international armed conflict, involving government armed forces and organised non-state armed groups. Mr Al-Mahdi was associated with Ansar Dine and Al-Qaeda in the Islamic Maghreb, the Islamist militant groups for which he led an institution in charge of controlling the morality of the local population. It is as the head of this moral brigade that Mr Al Mahdi led and participated in the destruction of the monuments, in order to squash certain practices within the population of Timbuktu which were deemed heretical, including the use of the mausoleums as places of prayer or pilgrimage.
While this case focuses on attacks against ‘tangible’ cultural heritage, i.e. the mausoleums and the mosque, it also underlines that access to cultural heritage may allow the realisation of a number of human rights, such as the right to participate in cultural life but also freedom of religion and the right of minorities to enjoy their own culture, and to profess and practise their own religion. Therefore, when considering the reparations which could be awarded in this case, the ICC should take into account not only the loss of the physical objects which were attacked and their monetary value, but also the loss of intangible cultural heritage suffered by the local population.
The sentencing of Mr Al Mahdi further reminds us of the numerous instances of attacks against cultural heritage that have occurred in recent years. The emergence of non-international armed conflicts brings a particular set of issues given the involvement of non-state armed groups. While non-state armed groups are bound by the same rules with regard to the obligation to refrain from attacking cultural monuments as state armed forces, they often lack any knowledge of those rules or at least any specific knowledge thereof.
This landmark trial, as the first of its kind focusing on attacks against cultural heritage before the ICC, sends a clear message to those who may perpetrate this type of crime, as well as to domestic courts which should be the first avenues to prosecute the alleged perpetrators of attacks against cultural heritage. It highlights that the intentional destruction of cultural heritage constitutes a grave crime which affects not only the local populations but the rest of Mali and the world as well. As mentioned by the Special Rapporteur in the field of Cultural Rights in her latest report, published in August 2016, the intentional destruction of cultural heritage deprives ‘all humanity of the rich diversity of heritage that should be transmitted to future generations.’
Kristin Hausler is a Dorset Senior Research Fellow in Public International Law at the British Institute of International and Comparative Law