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The Prosecutor v. Ahmad Al Faqi Al Mahdi. Cultural heritage and Human rights

Essay 2017 11 Pages

Law - Miscellaneous

Excerpt

Contents

I. Introduction

II. The decision
1. Facts and circumstances of the case
2. Findings and gravity of the crime

III. Cultural heritage and human rights

IV. Comment on the decision
1. Interpretation of Article 8 (2)(e)(iv)
2. Universal rationale regarding gravity of crime

V. Conclusion and prospect

Reference list

“(…) The ICC left swaths of at-risk cultural property underprotected at a time when its protection is becoming an entrenched feature of modern warfare.”[1]

I. Introduction

In the decision of the ICC in September of 2016, Ahmad Al Faqi Al Mahdi was found guilty of the war crime of "intentionally directing attacks against historic monuments and buildings dedicated to religion" in Timbuktu, Mali in June and July of 2012 and sentenced to nine years.[2] It was the first time a perpetrator was sentenced for the destruction of heritage dedicated to religion as a main charge.[3] I will have an in-depth look at the case and the judgement of the ICC (II.), then provide brief backround information to the role of cultural heritage in human rights through a sample of resolutions, conventions, statutes and decisions (III.), to ultimately comment on the Al Mahdi decision (IV.).

II. The decision

1. Facts and circumstances of the case

Al Mahdi was a member of Ansar Dine, an Islamist group whose aim is to dictate sharia law all over Mali.[4] Ansar Dine joined a rebellion in northern Mali led by the National Movement for the Liberation of Azward (MNLA) in early 2012.[5] In April of the same year, Ansar Dine gained control of Timbuktu and established in conjunction with Al Qaeda in the Islamic Maghreb the Hisbah, a morality brigade. Al Mahdi, who has a reputation as an expert in religious matters, was appointed head of the Hisbah.[6] During the occpupation, the Hisbah destroyed nine mausoleums and one mosque in Timbuktu which they perceived as a visible vice.[7] These buildings were cherished by the community, were used for the practice of religion, and are considered an important part of Timbuktu's historical heritage. Hence, these buildings embodied the identity of the city, which is also known as the „city of 333 Saints“.[8] The buildings were designated as a part of the national cultural heritage, even named a UNESCO World Heritage site.[9] Al Mahdi oversaw these attacks as the head of the Hisbah, used the men from the brigade, supervised other attackers who had come to particpate in the destruction, managed financial and material aspects of the attack, was present at all of the sites that were attacked for moral support and to give insturctions, participated personally in the destruction of at least five sites, and was responsible for the justification given to journalists.[10] Furthermore, Al Mahdi acted with the knowledge that the targeted buildings were dedicated to religion, had historical importance, and were non-military objects, which is proven by his recordings during the destruction of one of the sites.[11]

2. Findings and gravity of the crime

Al Mahdi was charged under Article 8 (2)(e)(iv) of the Rome Statute (lex specialis to Article 8 (2)(e)(xii)), which punishes "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 objects". Because it was the first case in which the court applied Article 8 (2)(e)(iv), it wanted to focus on the interpretation of the crime and its elements.[12]

Firstly, Al Mahdi and the attackers accompanying him directed an attack on the sites, resulting in destruction or significant damage.[13] The court clarified that the element of "directing an attack" encompasses any act of violence against protected objects. It refrains from the distinction whether a protected object was harmed in battle as a conduct of hostilities or out of the battle after the object has fallen under the control of the armed group. According to the court, such a distinction is not indicated by the language of the Rome Statute, and would rather undermine the special status of religious, cultural, and historical objects.[14]

Secondly, the chamber qualifies the present buildings of both religious and historical importance, because of their role in the cultural life in Timbuktu and the status of nine as UNESCO World Heritage sites,[15]. Thirdly, there is no doubt left that Al Mahdi used the attacks as an affront to the values associated with these buildings.[16]

Fourthly, the chamber was confident that these actions took place in the context of and were associated with a non-international conflict between Malian Government forces and groups including Ansar Dine.[17]

Emphasizing the direct participation in many incidents and the role as a media spokesperson in justifying the attacks, the chamber was satisfied that Al Mahdi meets the subjective elements of co-perpretation (Article 25 (3)(a)).[18]

Finally, it is worthwhile to briefly examine the rationale regarding to the gravity of the crime. Using the status as a UNESCO World Heritage site was the main rationale in the report to the Prosecutors Office, as well as elaborating on the scale of the crime as noting that the destruction "shocked the conscience of humanity", quoting the UN Secretary General's recognition of the sites as "part of the indivisible heritage of humanity".[19] The chamber notes the testomonies of a Malian expert in cultural matters and an UNESCO witness, both who explained the importance of the buildings for the people of Timbuktu; the people admired them and were attached to them for the reflection of history and role in the expansion of Islam.[20] Conversely, the court emphasized that all "the sites but one were UNESCO World Heritage sites and, as such, their attack appears to be of particular gravity as their destruction does not only affect direct victims of the crimes (...), but also people throughout Mali and the international community."[21] Here the chamber develops an universalist argument justifying the gravity of the crime, following (to a certain extent) the Prosecutor's rationale.

III. Cultural heritage and human rights

To understand the importance of this decision, one must understand the value of cultural heritage in human rights. Originally, the notion of safeguarding cultural property in international humanitarian law arose from its perceived significance to humanity through its advancement of art, sciences, and knowledge.[22] That changed in the mid-twentieth century with an increase in the importance of the enjoyment of human rights and the promotion of cultural diversity, as seen in the 1954 Hague convention and the protocols thereto as the first specialist instrument for the protection of cultural heritage.[23] This framework was created because of massive destruction of cultural heritage during the Second World War.[24]

More recently the human rights Council emphasized in its Resolution 33/20 that “the destruction of or damage to cultural heritage may have a detrimental and irreversible impact on the enjoyment of cultural rights, in particular the right of everyone to take part in cultural life, including the ability to access and enjoy cultural heritage”

[...]

[1] Gerstenblith, Harvard Law Review 2016, 1978, 1983.

[2] Case Information Sheet - Prosecutor v. Ahmad Al Faqi Al Mahdi Case-No. ICC-o/12-al/15, 17.08.2017.

[3] Lostal, The first of its kind: the ICC opens the case against Ahmad Al Faqi Al Mahdi for the destruction of cultural heritage in Mali, 2015, https://www.globalpolicy.org/home/163-general/52814-icc-opens-a-case-for-the-destruction-of-cultural-heritage-in-mali.html (lastly visited 17.09.2017).

[4] ICC Prosecutors Office, Situation in Mali, Article 53 (1), 4.

[5] Pre-Chamber, Confirmation of Charges, 22; Judgement & Sentence, 16.

[6] Pre-Chamber, Confirmation of Charges, 23; Judgement & Sentence, 17.

[7] Pre-Chamber, Confirmation of Charges, 24; Judgement & Sentence, 18.

[8] Pre-Chamber, Confirmation of Charges, 23; Judgement & Sentence, 17.

[9] Pre-Chamber, Confirmation of Charges, 24; Judgement & Sentence, 18.

[10] Pre-Chamber, Confirmation of Charges, 25; Judgement & Sentence, 24.

[11] Pre-Chamber, Confirmation of Charges, 26; Judgement & Sentence, 27.

[12] Judgement & Sentence, 8.

[13] Judgement & Sentence, 26.

[14] Judgement & Sentence, 9.

[15] Judgement & Sentence, 26.

[16] Judgement & Sentence, 27

[17] Judgement & Sentence, 28.

[18] Judgement & Sentence, 29f.

[19] ICC Prosecutors Office, Situation in Mali, Article 53 (1), 31f.

[20] Judgement & Sentence, 37.

[21] Judgement & Sentence, 38.

[22] Vrdoljak, 2009, 1.

[23] Bennoune Cultural heritage is a human rights issue, 2016, http://en.unesco.org/news/karima-bennoune-cultural-heritage-human-rights-issue (lastly visited 17.09.2017).

[24] Vrdoljak 2009, 22f.

Details

Pages
11
Year
2017
ISBN (eBook)
9783668567757
ISBN (Book)
9783668567764
File size
631 KB
Language
English
Catalog Number
v379110
Institution / College
University of New South Wales, Sydney
Grade
1
Tags
Human Rights International Criminal Court Cultural Heritage

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Title: The Prosecutor v. Ahmad Al Faqi Al Mahdi. Cultural heritage and Human rights