On September 27, 2016, the International Criminal Court (ICC) convicted Ahmad Al Faqi Al Mahdi – a former leader in the Al Qaeda in the Islamic Maghreb (AQIM) associated movement, Ansar Eddine – for the war crime of destruction of cultural property.
The court found that Mr. Al Mahdi led a morality squad called Hesbah, that was responsible for imposing sharia law on behalf of the Islamic court of Timbuktu. The court also found that he orchestrated and helped carry out the destruction of nine historic mausoleums and the Sidi Yahia mosque in Timbuktu, Mali between 30 June 2012 and 11 July 2012. The destroyed mausoleums were places of religious pilgrimage that revered ancient saints and contained thousands of ancient manuscripts. The Sidi Yahia mosque was part of the UNESCO world heritage site, and it dated back the the 15th century.
The ICC’s prosecution of Mr. Al Mahdi is significant because it marked the first time that the ICC prosecuted the destruction of culture heritage as a war crime. Mark Ellis, Executive Director of the International Bar Association has articulated why the destruction of cultural heritage is so damaging to cultures when he said that cultural destruction is not a “second-rate crime” but rather is “part of an atrocity to erase a people.” Although many commentators have argued that cultural heritage deserves consideration and protection in the international courts—and international treaties already exist to provide such protection—the international court systems have been mostly silent in this area until the ICC’s recent decision in Mr. Al Mahdi’s case. Prior to this decision, the International Criminal Tribunal for the former Yugoslavia (ICTY) was the only court to have ever prosecuted an individual for destroying cultural property. The Al Mahdi case also marked the first time that a destruction of cultural heritage charge was the main charge in an international criminal case, as opposed to merely an ancillary charge. The weight of this fact is not to be taken lightly. As ICC Prosecutor, Fatou Bensouda, declared, “what is at stake is not just walls and stones. The destroyed mausoleums were important, from a religious point of view, from an historical point of view, and from an identity point of view.”
Protection of cultural property is a lesser known but established tenet of international law that can be traced back to Articles 27 and 56 of the 1907 Hague Regulations concerning the Laws and Customs of War on Land . The 1907 Hague Regulations identify “wanton destruction of religious, charitable, education, and historic buildings and monuments” as a war crime. The 1946 Nuremberg Tribunal stated that “[The] rules laid down in the Convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war.” Accordingly, these provisions are binding on all nations as customary international law, which are binding international obligations not derived from treaties that exist because state practice demonstrates that the international community accepts the obligation as law. Despite these treaty provisions, World War II exposed the need for more robust protection of cultural property due to rampant cultural destruction that took place during the conflict.
In 1954, 127 States ratified the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, which equivocates the view that “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each person makes its contribution to the culture of the world.” Subsequent international instruments reflect the enhanced protection of cultural property, including Additional protections regarding cultural property include Protocols I and II to the Geneva Conventions and the Second Protocol to the Hague Convention of 1954.
As noted previously, the ICC was not quick to take on cases of cultural destruction, even though the ICC is well within its rights to do so in light of the fairly robust treaty and customary law that address these types of charges. The Preamble of the 1998 Rome Statute of the ICC declares that “the most serious crimes of concern to the international community as a whole must not go unpunished.” In establishing the ICC, the State Parties were “determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.” Under Article 8(2)(e)(iv) of the Rome Statute, “intentionally directing attacks against buildings dedicated to religion, education, art, science, or charitable purpose, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives” is a war crime. Thus, because the Rome Statute lists offenses pertaining to the protection of cultural property as a war crime and these protections are also customs of international law, the ICC can prosecute those States or individuals, like Mr. Al Mahdi, who engage in the unlawful destruction, damage, and appropriation of cultural property.
In finding Mr. Al Mahdi guilty, the ICC clarified the purposes achieved by the conviction. The Chamber explained that the conviction is best understood not as fulfilling any desire for revenge, but rather as a condemnation of the crimes, an acknowledgment of the victims, and a promotion of peace and reconciliation. The Chamber also clarified that the nine-year sentence aimed to not only discourage recidivism, but also to deter others from committing similar crimes. This purpose of general deterrence is important for the international community moving forward. For centuries, war-time opponents have used destruction of cultural heritage as a tool of war with little fear of consequences. These tactics remain prevalent today not only in the case of Mr. Al Mahdi but also currently in Iraq and Syria where Islamic State in Iraq and Syria (ISIS) leaders have been destroying or looting and selling valuable cultural property in the course of conflicts in the region.
Mr. Al Mahdi’s case demonstrates that the ICC can, and should, prosecute ISIS leaders responsible for destruction in those ongoing conflicts. From a theoretical perspective, not only does the aesthetic value of much cultural property demand protection, but so too does the symbolic value of cultural property. Indeed, cultural property is the embodiment of a group’s connection to and expression of its identity. Accordingly, international law provides legal protection for communities who have lost cultural property at the hands of aggressors like Mr. Al Mahdi, and now, other aggressors know that these crimes may not go unpunished.