Mali, Accountability for the Destruction of Cultural Heritage

Mali, Accountability for the Destruction of Cultural Heritage

Case prepared by Juliette Praz, Master student at the Graduate Institute of International and Development Studies, under the supervision of Professor Marco Sassòli and Ms. Yvette Issar, research assistant, both at the University of Geneva.

A. GUARDIAN ARTICLE ON THE ICC’S FIRST CULTURAL DESTRUCTION TRIAL

[Source: The Guardian, ‘ICC’s first cultural destruction trial to open in The Hague’, 28 February 2016, available on: http://www.theguardian.com/law/2016/feb/28/iccs-first-cultural-destruction-trial-to-open-in-the-hague]
 
[1] The international criminal court’s first war crimes trial for destruction of cultural monuments opens this week against a jihadi leader accused of demolishing ancient mausoleums in Timbuktu.  
 
[2] Ahmad al-Faqi al-Mahdi is accused of levelling medieval shrines, tombs of Sufi saints and a mosque dating back to the 15th century that formed part of the Unesco world heritage site in the northern Malian city.
 
[...]
 
[3] Since Balkan warlords were charged by the international criminal tribunal for the former Yugoslavia with shelling Dubrovnik, wrecking the ancient bridge at Mostar and damaging the national library in Sarajevo in the early 1990s, those responsible for eradicating historical sites have largely escaped punishment.
 
[4] No Taliban or al-Qaida leader was charged with the destruction of Afghanistan’s sixth-century Bamiyan Buddhas, which were dynamited in 2001. Khmer Rouge genocide trials did not deal with the looting of Cambodia’s Hindu temples. Nor have Islamic State leaders been indicted for destroying Assyrian statues from Nineveh or razing Roman ruins in Palmyra.
 
[5] The damage inflicted on Timbuktu, known as “the city of 333 saints”, followed the rebellion of al-Qaida-inspired Tuareg militias, armed with weapons from Libya, in the central African state in 2012. 
 
[6] Faqi, a local ethnic Tuareg, is said to have been a member of Ansar Dine and the head of Hesbah, known as the Manners’ Brigade, which considered the mausoleums – built to pay homage to deceased saints – to be blasphemous.
 
[7] He is accused of directing attacks on 10 ancient mud-brick buildings in June 2012 and July 2012. One of the desecrated sites was the Sidi Yahya mosque, built in 1440 when Timbuktu was a regional centre for learning. It contained Prof Sidi Yahya’s mausoleum.
 
[8] Around 4,000 ancient manuscripts were also lost, stolen or burned during the Islamists’ reign of terror. Ansar Dine was pushed out of Timbuktu in 2013 when French forces intervened. Faqi was arrested in neighbouring Niger and sent to the Netherlands last September.
 
[…]
 
[9] Faqi is the first person the ICC has put on trial for the Mali conflict. There has been criticism that no major figure in the Tuareg uprising has been charged.
 
[10] Mark Ellis, chief executive of the International Bar Association, who specialises in war crimes cases, said: “Politically, there will be those who will question why Bensouda [the ICC’s Chief Prosecutor] is focusing on ancient sites rather than going after rape, torture and murder convictions, but destruction of cultural heritage is not a second-rate crime. It’s part of an atrocity to erase a people. I hope it will act as a deterrent to similar acts in other countries.”
 
[…]
 
[11] Legal authority for monument destruction prosecutions derives from a 1954 convention written in the aftermath of the second world war.
 
[12] Although the 1938 Nazi-organised vandalism of Kristallnacht – targeting synagogues and Jewish property across Germany – did feature in the Nuremberg war crimes trials, none of the defendants were specifically charged with cultural destruction.
 
[13] The convention covers architectural monuments, archaeological sites, works of art, manuscripts, books, other cultural objects and scientific collections. It has been ratified by more than 125 states. 
 
[14] Welcoming Faqi’s transfer to The Hague last September, the chief prosecutor Bensouda said the people of Mali “deserve justice for the attacks against their cities, their beliefs and their communities”.
 
[15] “The charges we have brought against Ahmad al-Faqi al-Mahdi involve most serious crimes,” she said. “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.”
 
[…]
 

B. ICC DECISION ON THE CONFIRMATION OF CHARGES AGAINST AHMAD AL FAQI AL MAHDI

[Source: ICC, Decision on the confirmation of charges against Ahmad Al Faqi Al Mahdi, No. ICC-01/12-01/15, Pre-Trial Chamber I, 24 March 2016, available on: https://www.icc-cpi.int/CourtRecords/CR2016_02424.PDF]
 
[…]
 
I. PROCEDURAL HISTORY
 
3. On 13 July 2012, Mali referred the situation which was on its territory since January 2012 […] to the Court.
 
4. On 18 September 2015, the Chamber upon request by the Prosecutor issued a warrant for the arrest of Ahmad Al Faqi Al Mahdi […].
 
5. Ahmad Al Faqi Al Mahdi was surrendered to the Court by the authorities of the Republic of Niger on 26 September 2015 and made his initial appearance before the Single Judge on 30 September 2015 […].
 
[…]
 
II. PRELIMINARY AND PROCEDURAL MATTERS
 
A. Nature and purpose of the present decision
 
14. In the present decision, the Chamber renders its determination under article 61(7) of the Statute as to whether there is sufficient evidence to establish substantial grounds to believe that Ahmad Al Faqi Al Mahdi committed the crime with which he is charged.
 
[…]
 
III. FINDINGS
 
[…]
 
A. Armed conflict in Mali and occupation of Timbuktu
 
30. The facts alleged in the charge took place in the town Timbuktu between about 30 June 2012 and about 11 July 2012. […] Evidence submitted by the Prosecutor, including documents issued by the Malian Ministry of Defence, as well as reports from the UN and media, also support the allegations that an armed conflict of a non-international character broke out in Mali in January 2012 and that this armed conflict was still ongoing at the time of the facts referred to in the charge.
 
31. It is also […] apparent in light of over evidence […], that between early April 2012 and January 2013 the town of Timbuktu was under the control of the armed groups Al-Qaeda in the Islamic Maghreb (“AQIM”) and Ansar Dine, a Tuareg movement associated with AQIM, and that those two groups jointly set up an administrative structure of the city.  The administrative structure included among others, the Islamic policy, the Islamic tribunal, and the Hisbah or “Brigade des moeurs”, as well as a media commission.
 
[…]
 
B. Destruction of and damage to buildings in Timbuktu
 
33. The most pertinent evidence submitted by the Prosecutor concerning the destruction of and damage to buildings (the “Buildings/Structures”) in Timbuktu between approximately 30 June 2012 and 11 July 2012 […] consists of: video footage during and after the destructions taking place; statements of witnesses with relevant knowledge concerning the events […]; images including satellite imagery of the Buildings/Structures before and after their (partial) destruction; documents originating from Malian authorities; expert analyses; media reports; and statements and reports emanating from international organisations including UNESCO.
 
34. The evidence shows that the targeted Buildings/Structures included:
(i)        the Sidi Mahamoud Ben Omar Mohamed Aquit Mausoleum;
(ii)       the Sheikh Mohamed Mahmoud Al Arawani Mausoleum;
(iii)      the Sheikh Sidi El Mokhtar Ben Sidi Mouhammad Al Kabir Al Kounti Mausoleum;
(iv)      the Alpha Moya Mausoleum;
(v)       the Sheikh Mouhamad El Mikki Mausoleum;
(vi)      the Sheikh Abdoul Kassim Attouaty Mausoleum;
(vii)     the Sheikh Sidi Ahmed Ben Amar Arragadi Mausoleum;
(viii)    the door of the Sidi Yahia Mosque;
(ix)      the Bahaber Babadié Mausoleum and
(x)       the Ahmed Fulane Mausoleum, both adjoining the Djingareyber Mosque.
 
35. Seven of the mausoleums were situated in four sites, namely the Sidi Mahamoud, Sidi El Mokhtar, Alpha Moya, and Trois Saints cemeteries.
 
36. The Buildings/Structures were regarded and protected as a significant part of the cultural heritage of Timbuktu and of Mali. The community in Timbuktu was involved in their maintenance and used them for their religious practices. At the time of the destruction, all cemeteries in Timbuktu, including the Building/Structures within those cemeteries, were classified as world heritage and thus under the protection of UNESCO, and as many as 16 mausoleums situated in Timbuktu were also themselves protected sites pursuant to the 1972 Convention concerning the protection of the world cultural and natural heritage. Furthermore, as of 28 June 2012, the conflict in Mali as a whole and Timbuktu in particular led UNESCO, upon request of the Malian authorities, to include the city in its entirety on the list of world heritage in danger. It is also apparent from the evidence that the Buildings/Structures did not constitute military objectives.
 
37. The materials illustrates that the Buildings/Structures were destroyed by individuals, some armed with weapons, with a variety of tools, including pickaxes and iron bars.
 
38. As a consequence of these actions, all of the Buildings/Structures were either completely destroyed or severely damaged.
 
39. The unanimous outcry of the international community and individuals concerned substantiates the Prosecutor’s allegation as to the seriousness of the acts. The evidence submitted by the Prosecutor confirms that the Buildings/Structures played an important role in the life of the inhabitants of Timbuktu and that their destruction was considered as a serious matter and regarded by the local population as an aggression towards their faith. Some of the Buildings and Structures have since been reconstructed, while in other instances something symbolic was built.
 
40. The crime proscribed by article 8(2)(e)(iv) of the Statute, as further elaborated in the Elements of Crimes, requires that the object of the attack be “one or more buildings dedicated to religion, […] historic monuments, […] which were not military objectives”.
 
41. It is not in dispute that the Buildings/Structures were dedicated to religion and constituted historic monuments because of their origins and significance, and that none of them constituted a military objective.
 
42. Further, the evidence is univocal in showing that the Buildings/Structures were specifically identified, chosen and targeted by the perpetrators as objects of their attack, precisely in light and because of their religious and historical character.
 
43. The wording of the provision, which constitutes lex specialis to the war crime of intentionally attacking civilian objects, makes it clear that the prohibition attaches to the attack per se, irrespective of the fact that such attack may or may not result in the destruction, whether partial or total, of the targeted building. Accordingly, they constitute “attacks” within the meaning and for the purposes of article 8(2)(e)(iv) of the Statute also in respect of those acts which did not bring about the complete destruction of the targeted Building or Structure. […]
 
44. The Chamber is satisfied that the (partial or total) destruction of the Buildings/Structures as outlined above took place in the context of the non-international armed conflict, and more specifically, in the context of, and in association with, the particular part of this conflict, which constituted the occupation of the town of Timbuktu by AQIM and Ansar Dine, as described above. The Chamber is thus satisfied that the objective contextual and specific elements of the war crime of attacking protected objects under article 8(2)(e)(iv) of the Statute are met.
 
C. Ahmad Al Faqi Al Mahdi’s role in the context of Timbuktu’s occupation and the destruction of the Buildings/Structures
 
45. […] it emerges that:
 
(i) Ahmad Al Faqi Al Mahdi was an eminent scholar and expert of religious affairs; the most competent and prominent person in Timbuktu when it came to being knowledgeable in religious matters;
 
(ii) Ahmad Al Faqi Al Mahdi acted in strict cooperation with the leadership of both occupying groups and played an active role within the context of the institutions established by them;
 
(iii) Ahmad Al Faqi Al Mahdi participated in meetings with the leadership of AQIM and Ansar Dine, and had direct relations with leaders of the armed groups including Abou Zeid, Yahia Abou Al Hammam, Abdallah Al Chinguetti, and Iyad Ag Ghaly; he appears to have belonged to the circle of individuals from the local population chosen by the leaders of the occupying groups to discuss pending matters;
 
(iv) Ahmad Al Faqi Al Mahdi played a key role with regard to the Hisbah: he established the Hisbah himself at the beginning of April 2012, became its first head upon appointment by Abou Zeid, the governor of Timbuktu at the time of the occupation, and held this position until September 2012; he became a member of Ansar Dine at the moment he accepted to become head of the Hisbah;
 
(v) Ahmad Al Faqi Al Mahdi, because of his religious knowledge, was closely associated with the work of the Islamic tribunal, including by being consulted prior to its creation, by attending the court and participating in the enforcement of its decisions.
 
46. The mission of the Hisbah was to prevent apparent vice and to promote virtue as well as to carry out charitable tasks; […]
 
47. As such, it fell within the scope of the mission of the Hisbah to deliberate on the fate of the mausoleums which had been erected upon the tombs in Timbuktu, as well as the door at the Sidi Yahia Mosque: the prevention of anything that can be considered as worshipping the tombs, such as building the dome over the tomb fell within the scope of its competences. Ahmad Al Faqi Al Mahdi was the author of the sermon given on the Friday before the destruction of the Buildings/Structures started […].
 
48. The evidence demonstrates that after initial attempts undertaken also by Ahmad Al Faqi Al Mahdi to discourage the population from following their established practices concerning the mausoleums, the decision to proceed with their destruction was taken by Iyad Ag Ghaly, in consultation with Abou Zeid, Abdallah Al Chinguetti and Yahia Abou Al Hammam.
 
49. The evidence also supports the allegation that Ahmad Al Faqi Al Mahdi, in his capacity as head of the Hisbah, played a crucial role in implementing the decision to destroy the Building/Structures. Ahmad Al Faqi Al Mahdi publicly declared that the decision to destroy the Buildings/Structures was deliberately taken: “nous agissons ainsi parce que nous voulons la demolition des dômes”. He stated that the destruction of the domes had been ordered by “le Messager” and not prohibited by the relevant texts consulted by him.
 
50. Once the occupying groups had determined that the destruction was necessary, it fell upon the Hisbah to decide the modalities in which the destruction of the Buildings/Structures would be carried out and to provide the financial and operational means which would be necessary to carry out their destruction. Ahmad Al Faqi Al Mahdi decided the order […] in which the Buildings/Structures were to be destroyed […].
 
51. In addition to the role played by Ahmad Al Faqi Al Mahdi in the administrative structures as detailed in paragraph 45 above, Ahmad Al Faqi Al Mahdi personally participated in or assisted to the material execution of the destruction of several of the Buildings/Structures. He participated in some instances using a pickaxe and was involved in the destructions at all four cemeteries concerned by supervising the work, giving advice and “preparing drinks and supervising the work, as well as providing the tools […] including the pickaxes”. He provided the means for the destruction of the door at the Sidi Yahia Mosque and contributed in pulling out the door, and finally approved of the destruction of the domes adjacent to the Djingareyber Mosque, in which he participated himself at the beginning using a pickaxe and later approved the use of a bulldozer.
 
52. The evidence shows that Ahmad Al Faqi Mahdi was present at all relevant sites of destruction, namely the Sidi Mahamoud cemetery, the Sidi El Mokhtar cemetery, the Alpha Moya cemetery, the Trois Saints cemetery, the Sidi Yahia Mosque, and the Djingareyber Mosque.
 
53. Importantly, it also appears from the evidence that Ahmad Al Faqi Al Mahdi actively took part in the (partial) destruction of:
(i)        the Alpha Moya Mausoleum;
(ii)       the Sheikh Sidi Ahmed Ben Amar Arragadi Mausoleum;
(iii)      the door of the Sidi Yahia Mosque;
(iv)      the Ahmed Fulane Mausoleum and
(v)       the Bahaber Babadié Mausoleum, both adjacent to the Dingareyber Mosque.
 
[…]
 
55. In light of evidence outlined above, the Chamber is satisfied that Ahmad Al Faqi Al Mahdi is individually criminally responsible for the crime charged by the Prosecutor. Ahmad Al Faqi Al Mahdi was directly and personally involved in all stages of the (partial) destruction of the Buildings/Structures. He was part of the planning phase – as religious expert and prominent personality in the context of the occupation of Timbuktu – as well as of the preparatory and implementation phase – as head of the Hisbah.
 
56. Ahmad Al Faqi Al Mahdi’s significant and manifold contribution to the destruction of the Buildings/Structures was supported by the requisite intent and knowledge. The evidence univocally shows his full awareness both of the factual circumstances establishing the existence of an armed conflict and of the relationship between this conflict and the destruction of the Buildings/Structures. Further apparent from the evidence are Ahmad Al Faqi Al Mahdi’s awareness of the historic and non-military nature of the Buildings/Structures, as well as of his prerogatives and powers as head of the Hisbah and of the role played in this capacity in the context of the (partial) destruction. […]
 
57. Ahmad Al Faqi Al Mahdi acted in full awareness of the protected status of the Buildings/Structures […].
 
 
IV. CONCLUSION
 
58. In light of the above, the Chamber finds that there are substantial grounds to believe that Ahmad Al Faqi Al Mahdi committed the war crime of intentionally directing attacks against buildings dedicated to religion and historic monuments under article 8(2)(e)(iv) of the Statute, and therefore confirms the charge brought by the Prosecutor against Ahmad Al Faqi Al Mahdi […].
 
[59] FOR THESE REASONS, THE CHAMBER
 
CONFIRMS the charge against Ahmad Al Faqi Al Mahdi as follows:
 
1. Ahmad AL FAQI AL MAHDI (“AL MAHDI”), born in Agoune (Mali), and of between thirty and forty years old, is criminally responsible for having intentionally committed in Timbuktu between around 30 June 2012 and around 11 July 2012 the war crime of attacking buildings dedicated to religion and historic monuments, pursuant to and prohibited by, article 8(2)(e)(iv) of the Rome Statute (“the Statute”).
 
[…]
 
4. From January 2012, a non-international armed conflict broke out in the territory of Mali, and led to different armed groups taking control of the north of the country. Thus, in early April 2012, the groups Ansar Dine and Al-Qaeda in the Islamic Maghreb (AQIM) took control of Timbuktu. They occupied the city until mid-January 2013, when they fled in the face of the advance of the Malian Army supported by the French forces of Operation Serval.
 
5. During these approximately 10 months, the members of Ansar Dine and AQIM imposed their will in Timbuktu, through a local government, which included an Islamic tribunal, a morality brigade (Hisbah), and an Islamic police force. These structures exercised control over the population and significantly restricted and violated the rights and freedoms of the people of Timbuktu.
 
[…]
 
 

Discussion

 I. Classification of the Conflict and Applicable Law:
1. (Document A, paras [5]-[8]; Document B paras 30-32, 44, [59])
a. How would you qualify the situation in Mali? What is the applicable law? Did the same rules apply before, during and after the occupation of Timbuktu by the armed groups? Can armed groups be said to “occupy” territory? In para. 44, the Pre-Trial Chamber refers to the “occupation” of Timbuktu. Does the term in this sense have the same meaning as in an international armed conflict? (GC I-IV, Art. 3; P II, Art. 1; HR, Art. 42)
b. According to the ICC, the attack perpetrated by Ahmad Al Faqi Al Mahdi against Timbuktu’s cultural property “took place within the geographic and temporal context” of a non-international armed conflict. What is the geographical and temporal scope of IHL? Can it cover acts that occurred outside the territory of the State party to the NIAC? Would IHL have applied if Ansar Dine had destroyed cultural property located in neighbouring Niger or Burkina Faso? (see ICTY, The Prosecutor v. Tadić, para. 70
 
II. Protection of Cultural Heritage in Armed Conflicts
2.  (Document B, paras 33-36, 39, 41-42)
a. What is cultural heritage? What is the difference between cultural heritage and cultural property? What kinds of objects and sites constitute cultural property? Is it defined in IHL? How can it be identified? Were the mausoleums that were destroyed by Ahmad Al Faqi Al Mahdi cultural property? The manuscripts? Why? (Hague Convention for the Protection of Cultural Property, Art. 1; P I, Art. 53; P II, Art. 16)
b. What is the relationship between the protection of cultural heritage in Protocols I and II and in the 1954 Hague Convention? (P I, Art. 53; P II, Art. 16)
 3. (Document A, para. 2; Document B, para. 36)
a. What significance does the listing of cultural heritage on the UNESCO World Heritage list have under IHL? Is cultural heritage protected even if it is not included in the UNESCO World Heritage list?
b. Malian authorities had requested the entire city of Timbuktu be placed on UNESCOs list of cultural heritage in danger. What, if any, consequences does that have under IHL? Does it mean that nothing in Timbuktu is a legitimate military objective? Or that legitimate military objectives may only be targeted after certain measures are taken? Do you think this is a realistic measure to take in armed conflict?
4. How is cultural heritage protected in times of armed conflicts? Does it benefit from the general protection afforded to civilian objects? Does it benefit from special protection under IHL? In both types of armed conflicts? Why is cultural heritage specially protected? Which rules are armed groups bound to respect with regards to the protection of cultural heritage? (HR, Arts 27 and 56; Hague Convention for the Protection of Cultural Property, Arts 4 and 19; P I, Arts 52(2) and 53; P II, Art. 16; CIHL, Rules 8, 38, 39 and 40)
5. (Document B, paras 43, 45-58)
a. Is an attack against cultural property a war crime? In what circumstances? Must the attack result in the destruction – either total or partial – of the property in question? Must the accused have destroyed the cultural property him or herself? According to the Pre-Trial Chamber, does an attack on cultural property have to result in damage in order for the provision to be violated? (ICC Statute, Arts 8(2)(b)(ix), 8(2)(b)(xiii), 8(2)(e)(iv) and 8(2)(e)(xii))
b. Was the cultural property in this case destroyed by attacks? Although Timbuktu was under control of those who destroyed the cultural property? How is an attack defined in IHL? Is the definition in the ICC Statute different? Is the destruction of cultural property by other means than attacks prohibited by IHL? Is it a war crime? (Hague Convention for the Protection of Cultural Property, Arts 4 and 19; P I, Arts 49(1) and 53; CIHL, Rules 8, 38, 39 and 40)
6. Can cultural property become a military objective? In what circumstances? If cultural property is considered a military objective, is any attack lawful under IHL, or must it be required by imperative military necessity? What is meant by “imperative military necessity”? (Hague Convention for the Protection of Cultural Property, Art. 4(2))
7. (Document B, paras. 40-42)
a. The Pre-Trial Chamber found that the buildings/structures were not military objectives. If we assume, however, that they were being used for military purposes, how do you think this would have affected the Chamber’s reasoning?
b. Could anything in Timbuktu constitute a military objective for – and therefore a legitimate object of attack by – those who controlled Timbuktu? (P I, Art. 52(2); CIHL, Rule 8)
8. (Document B, para. 43)Do you agree with the Pre-Trial Chamber’s assertion that the rule establishing the war crime of intentionally targeting cultural property is the lex specialis to the rule establishing the war crime of intentionally targeting civilian objects ? Why/Why not ?