Al Mahdi Has Been Convicted of a Crime He Did Not Commit

By Schabas, William | Case Western Reserve Journal of International Law, Spring 2017 | Go to article overview

Al Mahdi Has Been Convicted of a Crime He Did Not Commit


Schabas, William, Case Western Reserve Journal of International Law


CONTENTS I.     INTRODUCTION II.    MEANING OF "ATTACK" IN ARTICLE 8 III.   ORIGINS OF THE ROME STATUTE CULTURAL PROPERTY PROVISIONS IV.    OTHER LEGAL INSTRUMENTS OF RELEVANCE V.     THE NEXUS REQUIREMENT VI.    GENOCIDE AND CRIMES AGAINST HUMANITY VII.   CONCLUDING REMARKS 

I. INTRODUCTION

On September 27, 2016, Ahmad Al Faqi Al Mahdi was convicted by a Trial Chamber of the International Criminal Court for the crime of directing an attack against buildings dedicated to religion and historic monuments which were not military objectives, pursuant to article 8(2)(e)(iv) of the Rome Statute. Al Mahdi was sentenced to nine years' imprisonment. A month earlier, he had pleaded guilty to the charge at the beginning of his trial, which as a consequence took only a few days.

Pundits heralded the trial with cliches reserved for such occasions-- "landmark," "historic judgment," "breakthrough"--and it seemed as if it was a long-awaited tonic for the struggling institution. This was an easy win for the Court: an expeditious trial of a few days for a contrite defendant previously linked to the global pariah, the "deviant people" of Al Qaeda. (1) But perhaps this gift came at a price that was too good to be true. A closer look at the Rome Statute suggests that Al Mahdi did not commit the crime for which he was convicted.

Al Mahdi admitted responsibility for acts relating to the destruction of several mausoleums and the door of a mosque in Timbuktu, Mali, buildings that had been traditionally used by the local population as part of their religious observance. In 2012, when a rather complex civil war erupted in Mali, the government abandoned the northern provinces and religious extremists associated with Ansar Dine seized control of Timbuktu. The Prosecutor of the International Criminal Court observed that "[t]he Ansar Dine leadership is able to control and govern parts of the territory through local councils established in towns that fell under its control. Additionally, the group reportedly set up a specialized police force in Timbuktu in order to enforce the Sharia law." (2) As an eminent religious personality who had joined the rebels, Al Mahdi delivered a sermon condemning worship at the mausoleums. Subsequently, the rebel administration ordered that the mausoleums be destroyed. Al Mahdi, who presided over a morality tribunal known as the Hisbah, played a crucial role in implementing the decision to destroy (3) the buildings or structures in question, which at the time were classified by UNESCO as "world heritage."

Essentially identical provisions of the Rome Statute, one applicable to international armed conflict and the other to non-international armed conflict, govern the crime of "[i]ntentionally 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." Al Mahdi pleaded guilty to article 8(2)(e)(iv), the text that applies to non-international armed conflict. That the structures targeted by Al Mahdi were "buildings dedicated to religion" or that they were "historic monuments" does not seem to be seriously disputed. It was precisely because of their religious significance, something that did not suit the beliefs of the regime with which Al Mahdi was associated, that they were destroyed. (4) Clearly they did not constitute a "military objective." Although civil war continued in the country, Timbuktu seems to have been securely in the hands of the rebels at the time and would remain so until the first months of the following year. Indeed, based on the record before the Court it does not seem that there was any activity that could be called "military" or "combat" at the time the structures were destroyed. For this reason it is not at all evident that the implementation of the administrative decision to destroy the structures, carried out "with a variety of tools, including pickaxes and iron bars," (5) constituted an "attack" as the term is used in article 8 of the Rome Statute. …

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