“[D]estroying the mausoleums, to which the people of Timbuktu had an emotional attachment, was a war activity aimed at breaking the soul of the people of Timbuktu.” – (Witness P-431)

 

Introduction

On 27 September 2016, Trial Chamber VIII of the International Criminal Court (“the ICC”) delivered Judgment and Sentence in The Prosecutor v Ahmad Al Faqi Al Mahdi (ICC-01/12-01/15). This case represents two novel legal developments in the ICC’s jurisprudence: it being the first matter before the ICC where attacks against cultural heritage constitute the main charge in an international criminal case, and second, the first admission of guilt by an accused before the ICC.

Background

In January 2012, armed violence took place in the Republic of Mali, leading to different armed groups taking control of the country’s north. Around April 2012, following the retreat of Malian government forces, the groups Ansar Dine and Al-Qaeda in the Islamic Maghreb took control of Timbuktu.

Between 30 June 2012 and 11 July 2012, the defendant directed, planned, and participated in the destruction of historical mausoleums and mosques in Timbuktu. These sites, the ten most important and well-known in Timbuktu, formed a common heritage for the community, and were frequently visited by residents as places of prayer, and pilgrimage: [34]. With one exception, all buildings had the status of protected UNESCO World Heritage sites: [39].

Procedural History

On 17 December 2015, the defendant was charged with co-perpetrating the war crime of attacking protected objects of a religious and historic character, pursuant to Article 8(2)(e)(iv) of the Rome Statute (“the Statute”). On 18 February 2016, the parties reached a plea agreement. On 22 August 2016, the defendant made an admission of guilt.

The issues before the Chamber

There were two issues before the Chamber, as follows:

  1. Whether the defendant’s admission of guilt was supported by the facts of the case, pursuant to Article 65(1)(c) of the Statute; and
  2. A determination of the appropriate sentence.

Destruction of Cultural Heritage

Article 8(2)(e)(iv) of the Statute punishes the following act:

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.

The purpose of the provision is to govern the directing of attacks against special kinds of civilian objects, reflecting the particular importance of international cultural heritage. The Chamber was satisfied that these were monuments of both a religious and historical character, as evidenced by their role in the cultural life of Timbuktu, and the status of nine of the buildings as UNESCO World Heritage Sites.

In respect of the first element of the offence, the Chamber considered that ‘directing an attack’ encompasses any acts of violence against protected objects, and did not make a distinction as to whether it was carried out in the conduct of hostilities or after the object had fallen under the control of an armed group. As to the defendant’s role, the Chamber found the defendant made an “essential contribution”: that he exercised joint control of, and was implicated in, directing, planning, and participation of, the attacks.

Admission of Guilt

Reflecting on the role and purpose of the Article 65, the Chamber observed that Article 65 represents a ‘third avenue’ between two traditions of guilty pleas: the traditional common law model (affording the accused an opportunity to make an admission), and the civil law model (requiring the Chamber to conclude, for itself, that the admission is “supported by the facts”). By making such inter partes discussion in respect of admissions of guilt non-binding on the Chamber, the Chamber viewed the provision as being aimed at allaying concerns that guilty pleas did not open the way to the introduction of plea bargaining: see [25].

The Trial Chamber clarified that Article 65 requires that the defendant understand the nature of the charge against him; understand the consequences of making an admission of guilt; make the admission voluntary, after sufficient consultation with defence counsel; waive the rights involved with a full trial; and accept individual criminal responsibility. The prosecutor submitted that the defendant’s admission of guilt satisfied these requirements, and the Chamber found the defendant had accepted his individual criminal responsibility in respect of the charge.

Sentencing

Having accepted that the defendant’s admission of guilt was supported by the facts, the Chamber turned to determine an appropriate sentence. Whilst holding that the crime was of significant gravity, the Chamber were of the view that, even if inherently grave, crimes against property are generally of lesser gravity than crimes against persons: see [77]. In respect of the defendant, the Chamber found no aggravating circumstances and five mitigating circumstances, namely the defendant’s admission of guilt, cooperation with the prosecution, the defendant’s expressions of remorse and empathy with the victims, initial reluctance to commit the crime, and his good behaviour in detention. In a unanimous verdict, the Chamber sentenced the defendant to nine years imprisonment.

Tim Buckley is an Assistant Editor of the ILA Reporter.