People walking near a mosque, Sankore Mosque, Timbuktu, Mali /1269-2329
In anticipation of the International Criminal Court’s (ICC) upcoming trial against Mr. Ahmad Al Faqi Al Mahdi, its first to focus on the war crime of attacks against cultural heritage, the American Bar Association Center for Human Rights, its International Criminal Court Project and Stanford Law School Program in International and Comparative Law enlisted five distinguished experts to discuss the significance of this milestone case as part of its ongoing Arguendo series.
Arguendo (or “for the sake of argument” in Latin) is a regular roundtable forum where experts from varied fields give their opinions on a current issue in international criminal justice. Arguendo is a feature part of International Criminal Justice Today (ICJT) an online magazeine co-operated by the ABA and Stanford dedicated to news, opinion, and other current events in international criminal justice, or the fight to hold criminally accountable those who participate in the international atrocity crimes of genocide, crimes against humanity, war crimes, and aggression.
The ABA and Stanford were pleased to have the following preeminent experts and leaders in their respective fields participate in this Arguendo: UNESCO Director-General, Irina Bokova; former US Ambassador to the Netherlands and Georgetown Diplomacy Professor, Honorable Cynthia Schneider; former Prime Minister of Australia and President of Asia Society Policy Institute, Honorable Kevin Rudd; His Royal Highness Prince El Hassan bin Talal of Jordan; and Sam Sasan Shoamanesh and Gilles Dutertre of the ICC Office of the Prosecutor.
What is the significance of the war crime charges of attacks on cultural property in Mali?
The experts were asked the question what is the significance of the war crime charges of attacks on cultural property in Mali and follow-up questions:
In the coming months, judges at the International Criminal Court (ICC) will try Mr. Ahmad al-Faqi al-Mahdi, a leading member of an extremist militant Islamist group, for war crime charges of attacking cultural property. The charges brought by the Prosecution stem from allegations that Mr. al-Mahdi organized a campaign to destroy historic monuments and buildings dedicated to religion in Timbuktu and elsewhere in Mali. This is the ICC’s most significant case concerning the destruction of cultural property given that Mr. Al-Mahdi is solely charged with these cultural property crimes. What is the significance of the ICC pursuing such war crimes cases, particularly in the context of similar crimes occurring elsewhere in the world? Can this ICC case have a deterrent effect on others who have engaged or plan to engage in destroying cultural property? Can this ICC case, or the work of the Court more broadly in this regard encourage states to adopt and implement appropriate measures to protect against the deliberate destruction of cultural property?
Please find some highlights of the experts’ articles in response:
“Building on more than a century of law and jurisprudence in international law, there is increasing recognition of the connection between attacks against cultural heritage and the diminution of human rights and security. To combat this threat, the International Criminal Court (ICC) is becoming an indispensable actor in the preservation of cultural property in armed conflicts,” says Irina Bokova, Director-General of UNESCO.
“Legal experts will forensically investigate [the Al-Mahdi] case for the possible precedents it will set, although his case may prove to be the first guilty plea at the Court. While acts of violence against cultural property in Mali are subject to prosecution, international efforts to protect cultural heritage in Syria and Iraq will be sorely tested as ISIS is slowly rolled back and ultimately defeated,” asserts Kevin Rudd, former Prime Minister of Australia and President of Asia Society Policy Institute.
“The International Criminal Court has taken a critical step in protecting the “wisdom” of Timbuktu, and, by extension, providing legal protection for cultural heritage everywhere…For the first time, the destruction of cultural heritage will be considered by ICC judges as a war crime, setting a precedent with far-reaching ramifications,” adds Cynthia Schneider, former United States Ambassador to the Netherlands and Georgetown University Diplomacy Professor.
“[This] is the first case before the Court on the sole charges of deliberate destruction of buildings dedicated to religion and historic monuments. By that fact alone, it stands firm as an important precedent. Second, it demonstrates the Office of the Prosecutor’s commitment to investigating and prosecuting these crimes, and by so doing, highlighting their gravity. Similarly, the effective investigation and prosecution of such crimes can have a deterrent impact. Certainly, the absence of accountability does little to advance the cause of prevention,” explain Sam Sasan Shoamanesh and Gilles Dutertre, Senior Special Assistant to the Prosecutor and Senior Trial Lawyer, respectively, in the ICC Office of the Prosecutor.
“The ICC’s case against a militant extremist in Mali for the horrific destruction of cultural property exemplifies why the ICC is such a needed international organization. Put simply, if not for the ICC, what options of redress would be available for the cultural war crimes committed in Timbuktu and elsewhere in Mali? This reason alone should encourage countries like Iraq – where groups like Da’esh are systematically targeting and destroying some of humanity’s most cherished artefacts – to ratify the Rome Statute. In this light, our legal history is key to protecting the totality of our history,” argues His Royal Highness Prince El Hassan bin Talal of Jordan.
Timeline of developments in the prosecution of the war crime of attacks on cultural heritage
Please find here more information about the Situation in Mali and other cases before the ICC.
2012: UNESCO, UN Security Council, and ECOWAS call for ICC protection of cultural heritage
The International Criminal Court (ICC) Office of the Prosecutor (OTP) alleges that, from May 4 to July 10, 2012, members of Ansar Dine and Al-Qaeda in the Islamic Maghreb (AQIM), including Ahmad Al Faqi Al Mahdi, head of the Hisbah (a morality brigade under Ansar Dine and AQIM) and a member of Ansar Dine, conceived of and executed a plan to attack historical mausoleums, mosques, and monuments in Timbuktu (all of which were designated as UNESCO World Heritage sites as of December 1988).
On June 30, 2012, after receiving reports of the destruction of the Mausoleums of Sidi Mahmoud, Sidi Moctr, and Alpha Moya, UNESCO Director-General Irina Bokova called for a stop to the attacks on cultural heritage sites in Timbuktu.
On July 1, 2012, ICC Prosecutor Fatou Bensouda stated that attacks upon shrines of Muslim saints in Timbuktu may constitute war crimes under the ICC Rome Statute and warned that the OTP was closely following events.
On July 5, 2012, the UN Security Council, in light of the armed conflict in Mali, stressed that attacks against buildings dedicated to religion or historic monuments constitute crimes under the Additional Protocol II to the 1949 Geneva Conventions and the ICC Rome Statute.
On July 7, 2012, the Economic Community of West African States (ECOWAS) called for an immediate halt of attacks on historical monuments in Timbuktu and called for ICC investigation and prosecution of war crimes.
On July 13, 2012, the government of Mali referred itself to the ICC.
On July 18, 2012, ICC Prosecutor Fatou Bensouda stated that the OTP would open a preliminary examination into war crimes in Mali.
2013: ICC prosecutor opens a formal investigation into war crimes in Mali
On January 16, 2013, ICC Prosecutor Fatou Bensouda stated that the OTP would open a formal investigation into war crimes in Mali.
2015: ICC prosecutor charges a suspect with the war crime of attacking cultural heritage
On September 18, 2015, ICC Pre-Trial Chamber I issued a sealed arrest warrant, at the request of the OTP, against Ahmad Al Faqi Al Mahdi.
On September 26, 2015, Ahmad Al Faqi Al Mahdi was transferred to the custody of the ICC. Al Mahdi was charged by the OTP with the war crime of intentionally directing attacks against buildings dedicated to religion and historic monuments.
2016: ICC will hold its first trial on the war crime of attacking cultural heritage
On March 24, 2016, ICC Pre-Trial Chamber I confirmed the charge against Al Mahdi.
On June 1, 2016, ICC Trial Chamber VIII scheduled the opening of the trial against Al Mahdi for August 22, 2016.
About the the ABA-ICC Project
The American Bar Association’s (ABA) International Criminal Court (ICC) Project is an independent initiative of the ABA Center for Human Rights that advances international criminal justice and US-ICC relations through advocacy, education and practical legal assistance. The Arguendo is a regular online expert forum co-operated by the ABA-ICC Project and the Stanford Law School Program in International and Comparative Law.
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