North Carolina Journal of International Law

"Connecting North Carolina to the World of International Law"

The ICC sets a new precedent for punishing destruction of Cultural Heritage

By: Gordon Cobb

 

 

 

 

 

 

 

 

Legend tells that the “End of the World” gate to the Sidi Yahya mosque will remain closed until the end of times.[1]  The doors were tightly shut for centuries after the Timbuktu mosque was completed in 1441[2], until Ahman Al Faqi Al Mahdi and other members of “al-Queda-linked jihadi group” Ansar Dine tore into the holy site with pickaxes and bulldozers in 2012.[3]  Al Mahdi, who later claimed that “he had been overtaken by evil spirits[4],” also attacked and damaged nine mausoleums in the Mali city.[5]  Al Mahdi was charged by the International Crime Court (ICC) with “the commission of a war crime . . . regarding intentionally directing attacks against” the 10 total buildings he “either completely destroyed or severely damaged.”[6]

The ICC “investigates and . . . tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, and crimes against humanity.”[7]  The ICC was established in 2002 in a united effort by multiple countries to punish those who commit international crimes.[8]  Before the ICC, perpetrators of “widespread, systematic international crimes . . . had no one to answer to.”[9]

Al Mahdi plead guilty to the charges and received a nine-year sentence as punishment.[10]  Raul Cano Pangalangan, the presiding judge, believed the sentence will have “a deterrent effect on others tempted to carry out similar acts in Mali or elsewhere.”[11] The Court also ruled that Al Mahdi was “liable for damages of €2.7m[12]” which will likely be paid by the Trust Funds for Victims (TFV) as Al Mahdi is unable to pay.[13]

Prosecutor v. Ahmad Al Faqi Al Mahdi is significant because it is the first instance of the ICC focusing “solely on cultural destruction as a war crime.”[14]  “It is an unusual trial for the ICC, whose cases have in the past been confined to proceedings in which the crime victims were human.”[15]  “This is also the first time in which the destruction of ancient monuments has been classified as a war crime.”[16]  In the past, war crimes investigated by the ICC have involved genocide or great injury to human life.[17]  Here, Al Mahdi committed acts of violence against buildings, yet the ICC recognized the harm, even though no humans were physically harmed, and considered it a war crime.[18]  The ICC commented on the inherent value of unique cultural heritage sites and the importance of preventing cultural destruction in the future.[19]  When determining this ruling, The Chamber identified three categories of harm: “damage to the attacked historic and religious buildings, consequential economic loss, and moral harm.”[20]

While this ruling sets a hopeful precedent for cultural heritage crimes, there are those who believe this will be a rare outcome in international cases.  Fatou Bensouda, chief prosecutor for the ICC, likened the crimes in Timbuktu to the recent destruction of Syrian monuments and “Buddha statues in Afghanistan in 2001.”[21]  Unfortunately, the ICC has no jurisdiction in these countries so this decision is unlikely to directly impact these instances of cultural destruction.[22] Hopefully, this stance from the ICC will result in similar decisions in the future both in and outside of the ICC’s jurisdiction.  For now, this is just one step towards better protection of cultural landmarks and heritage throughout the world.

 

 

[1] Sidi Yahya Mosque in Timbuktu-Mali. Beautiful Mosque, https://www.beautifulmosque.com/Sidi-Yahya-Mosque-in-Timbuktu-Mali [https://perma.cc/7WYA-LNJ4] (last visited Sept. 29, 2017).

[2] Id.

[3] War Crimes Court Orders Mali Radical To Pay 2.7m for Timbuktu Rampage. The Guardian. (Aug. 17, 2017, 06:13 AM), https://www.theguardian.com/world/2017/aug/17/war-crimes-court-icc-orders-mali-radical-pay-damages-timbuktu-rampage-ahmad-al-faqi-al-mahdi [https://perma.cc/67CP-9F9B] (last visited Sept. 15, 2017) [hereinafter War Crimes].

[4] Id.

[5] 5 Prosecutor v. Ahmad Al Faqi Al Mahdi, INTERNATIONAL CRIMINAL COURT (Aug. 17, 2017), https://www.icc-cpi.int/mali/al-mahdi/Documents/Al-MahdiEng.pdf [https://perma.cc/7GN9-PNQV] (last visited Sept. 29, 2017).

[6] Id.

[7] About, International Criminal Court. https://www.icc-cpi.int/about

[https://perma.cc/48KZ-X3AA] (last visited Sept. 29, 2017).

[8] See id.

[9] Id.

[10] Jason Burke, ICC Ruling for Timbuktu Destruction ‘Should Be Deterrent for Others.’ The Guardian (Sept. 27, 2016, 06:25 AM), https://www.theguardian.com/world/2016/sep/27/timbuktu-shrines-icc-sentences-islamic-militant-nine-years-destruction-ahmad-al-faqi-al-mahdi [https://perma.cc/9UC4-HCQZ] (last visited Sept. 29, 2017).

[11] Id.

[12] War Crimes, supra note 3, at para 1

[13] ICC Orders Former Mali Islamist to Pay More Than $3 Million to Timbuktu Cultural Sites. UN News Centre (Aug. 17,  2017),  http://www.un.org/apps/news/story.asp?NewsID=57377#.Wbrn4q2ZNmA [https://perma.cc/FMB4-PQD80] (last visited Sept. 29, 2017).

[14] Burke, supra note 7, at para 2.

[15] Bernd Riegert, ICC Tries Timbuktu Destruction as War Crime, DW (Aug. 21, 2016), http://www.dw.com/en/icc-tries-timbuktu-destruction-as-war-crime/a-19488867 [https://perma.cc/M4AH-ALVH] (last visited Sept. 29, 2017).

[16] Id.

[17] See Situations Under Investigation, ICC. https://www.icc-cpi.int/pages/situations.aspx [https://perma.cc/5PRK-J523] (last visited Sept. 29, 2017).

[18] Riegert, supra note 15, at para 1-2.

[19] See Press Release, ICC, Al Mahdi case: ICC Trial Chamber VII issues reparations order (Aug. 17,2017), https://www.icc-cpi.int/Pages/item.aspx?name=pr1329 [https://perma.cc/M7ZF-223M] (last visited Sept. 29, 2017).

[20] Id.

[21] Burke, supra note 7, at para 23.

[22] See id.

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