Case Review: The Prosecutor v. Ahmad Al Faqi Al Mahdi

December 10, 2022

Accused jihadist leader Ahmad al-Faqi al-Mahdi, seen here in September, faces a trial at the International Criminal Court for crimes against humanity. ICC-CPI

By Daniela Baiardi

Facts of the case are based on ICC court records.^[1] For documents, news and recordings, visit HERE.

Background

In January 2012, armed violence took place in the territory of Mali and led to different armed groups taking control of the north of the country. Around early April 2012, the Islamic Maghreb called al-Qaeda and the Islamic Maghreb ‘AQIM’ took control of Timbuktu, Mali. In addition, it is home to one of the UNESCO world heritage sites, 16 mausoleums of Timbuktu (Mali), “due to its outstanding universal value as an African intellectual and spiritual capital in the 15th and 16th centuries.”^[2] From January 2012 until January 2013 the AQIM imposed their religious and political edicts on the territory of Timbuktu and its people. They did so through a local government, which included an Islamic tribunal, an Islamic police force, a media commission, and a morality brigade called the Hesbah.

The case has been made against Ahmad Al Faqi Al Mahdi, who was responsible for destroying the cultural heritage sites. He belongs to a family that is known in his community for having extensive knowledge of Islam. Al Mahdi joined the armed group Ansar Dine at the beginning of April 2012. For relevance, Ansar Dine was formed in 2011 by Iyad Ag Ghali, who partook in the 1990 rebellion in Mali. The fusion of Ag Ghali and Ifoghas Tuareg gained the backing of al-Qaeda in the Islamic Maghreb (AQIM).^[3] Al Mahdi was also in direct contact with the leaders of AQIM. Al Mahdi returned to Mali to provide help to these armed movements as an expert on matters of religion. He was also asked to lead the Hesbah. He wrote a document on the role of the Hesbah, which was entrusted with regulating the morality of the people of Timbuktu.^[4]

The mausoleums of saints and mosques of Timbuktu were an integral part of the religious life of its inhabitants and represented a common heritage for the community. The mausoleums were a popular place for the residents as a place of prayer and, for some, places of pilgrimage.^[5] The AQIM administration was interested in raising awareness among the population to stop such practices and, as the case may be, to prohibit them from pursuing them. Al Mahdi was asked to monitor the cemeteries visited by the residents.

In late June 2012, the AQIM administration made the decision to destroy the mausoleums. Al Mahdi was asked to conduct the attack as he was the leader of the Hesbah. Around June 30, 2012 and July 11, 2012, ten of the most important mausoleums of saints and mosques were attacked and destroyed on the orders of Al Mahdi and other individuals. All the destroyed sites were dedicated to religion and had been historic monuments dating back to the 15th and 16th century.^[6] In addition, they were not military objectives, and most of the buildings had the status of protected UNESCO World Heritage sites.

A warrant was given on September 18, 2015 for Al Mahdi’s arrest from a single Judge of Pre-Trial Chamber I, International Court of Crime Chamber (ICC). He was held at The Hague ICC detention center until September 16, 2015. When he was caught, he was fully collaborative: he admitted to personally determining which buildings/monuments were to be attacked and how. Also, he had written and read a sermon dedicated to the destruction of the mausoleums.^[7]

SITU Research is a studio that aims on putting together data and design to create a new path for justice, based in New York City, USA.(7) SITU Research teamed up with ICC to develop visual and special information about the case.^[8] On the platform, all the offenses made by Al Mahdi are listed visually.

Decision

Al Mahdi was caught, surrendered to the ICC by the authorities of Niger, and then taken to the ICC Detention Centre in the Netherlands on September 26, 2015.^[9]

The International ICC decided to give the sentence of nine years in detention in proportion to the gravity of the crime.(10) It’s The first time that the ICC has prosecuted cultural heritage destruction as a war crime under the Rome Statute of 1998. The Chamber highlighted that crimes against property are generally of less gravity than crimes against persons. They also highlighted the fact that the buildings destroyed were not only religious but also had another layer of value for the inhabitants of Timbuktu on an emotional and symbolic level. For the decision, the Chamber stated the following:

“…five mitigating circumstances, namely: (i) your admission of guilt; (ii) your cooperation with the Prosecution; (iii) the remorse and the empathy you expressed for the victims; (iv) your initial reluctance to commit the crime and the steps you took to limit the damage caused; and, (v) even if of limited importance, your good behavior in detention despite your family situation. Taking into account all these factors, the chamber, unanimously, sentences you to 9 years of imprisonment.”^[10]

In accordance with an order of the ICC, the time Al Mahdi spent in detention following his September 18th arrest would be deducted from his sentence.^[11] Mohamed Aouini represented Al Mahdi as defense counsel. Aouini has gained widespread recognition as a criminal lawyer. He is known for working in the case of Georges Ruggiu,who was a Belgian journalist working in Rwanda in 1994 and was accused of being connected to anti-Tutsi statements allegedly made in the course of his work as a radio broadcaster.^[12]

The three judges that were assigned to the case were Judge Raul C. Pangalangan, Presiding Judge Antoine Kesia-Mbe Mindu, and Judge Bertram Schmitt.^[13]

Update

On November 25, 2021, Al Mahdi’s case was reviewed to reduce his sentence. The Appel Chambers of the ICC, three judges: Judge Solomy Balungi Bossa, Presiding Judge Marc Perrin de Brichambaut and Judge Gocha Lordkipanidz. The focus of the review was for Al Mahdi to get two years reduced from his charges, therefore completing his sentence by the 18th September of 2022.^[14]

This review was initiated because Article 110(3) of the Statute provides in relevant part that “[w]hen the person has served two thirds of the sentence, […] the court shall review the sentence to determine whether it should be reduced.”^[15]

Other points that were highlighted during the review to reduce Al Mahdi’s sentence is if there is early and continuous cooperation, which also include voluntary cooperation, of the person with the investigation and prosecutors. Furthermore, Al Mahdi, while attending his sentencing, disassociated himself from the crime and did not create any problems while in prison with the staff or other prisoners.

A point made against Al Mahdi was that if he were to be freed into society again, he would be a disturbance to society. In response, he said would live in another country. Meanwhile, while in prison, he acquired new skills that would help him create a new life. The Republic of Mali opposed the release of Al Mahdi because the Mali community has not yet recovered from the wounds.

The Panel felt it was appropriate to reduce his sentences to two years, and he was released on September 18, 2022 instead of his original release date in 2024. The Panel also highlighted on that day that Al Mahdi will be released to take into consideration the concerns expressed by the Republic of Mali and the victims, in which country he would be released to.

Since their destruction, the mausoleums have been rebuilt. The planning of the operation from UNESCO started in 2013 with the help of many experts in the field. The reconstruction implementation started in 2014.^[16] The project has also taken the path of peace:

“The reconstruction and restoration of the earthen architectural heritage of Timbuktu highlighted the potential of cultural heritage as a peace-building tool and to increase resilience.”^[17]

The void of destruction does not create a healthy environment and it is a constant reminder of the past. It is through such projects of reconstructions of such spaces that give hope for the future of peace.

About the author: Daniela Baiardi (Center for Art Law International Class Intern, Summer 2022) is a Swiss Italian art historian doing her master’s degree in Theory and History of Art and Architecture at the Architecture Academy of Mendrisio, Switzerland. She is also doing an internship at the UNESCO Chair for ICT to develop and promote sustainable tourism in World Heritage Sites at University of Southern Switzerland (USI). In the future, she hopes to help protect cultural heritage.

The author would like to acknowledge input from Irina Strelkovskaya, Soleil Hawley and Paulina Picciano for their role in drafting this case review.

Select Sources:

1. Prosecutor v. Al Mahdi, ICC-01/12-01/15, Judgment (Sept. 27, 2016). ↑
2. Reconstruction of the destroyed mausoleums of Timbuktu (Mali), UNESCO World Heritage Convention, https://whc.unesco.org/en/canopy/timbuktu/#:~:text=About%20Timbuktu,Yahia%2C%20recall%20Timbuktu%27s%20golden%20age, Last Visited 12/04/2022 ↑
3. Ansar Al-Din, European Council for Foregin Affairs, https://ecfr.eu/special/sahel_mapping/ansar_al_din, Last Visited 12/05/2022 ↑
4. Prosecutor v. Al Mahdi, ICC-01/12-01/15, Judgment (Sept. 27, 2016). https://www.icc-cpi.int/sites/default/files/itemsDocuments/160926Al-MahdiSummary.pdf , page 3. ↑
5. Ibid ↑
6. Research, SITU, https://situ.nyc/research/profile, Last Visited 12/12/2022 ↑
7. Prosecutor v. Al Mahdi, ICC-01/12-01/15, Judgment, p. 3 (Sept. 27, 2016). https://www.icc-cpi.int/sites/default/files/itemsDocuments/160926Al-MahdiSummary.pdf ↑
8. ICC Report, ICC Mali SITU Platform, http://icc-mali.situplatform.com, Last Visited 12/12/2022. ↑
9. Prosecutor v. Al Mahdi, ICC-01/12-01/15, Judgment (Sept. 27, 2016). https://www.icc-cpi.int/sites/default/files/CaseInformationSheets/Al-MahdiEng.pdfProsecutor v. Al Mahdi, ICC-01/12-01/15, Judgment (Sept. 27, 2016). https://www.icc-cpi.int/sites/default/files/itemsDocuments/160926Al-MahdiSummary.pdf page 17. ↑
10. Prosecutor v. Al Mahdi, ICC-01/12-01/15, Judgment (Sept. 27, 2016). https://www.icc-cpi.int/sites/default/files/itemsDocuments/160926Al-MahdiSummary.pdf page 18 ↑
11. Ibid. ↑
12. Mohamed Aouini, The Special Tribunal for Lebanon, https://www.stl-tsl.org/en/about-the-stl/biographies/mohamed-aouini , Last Visited 12/04/2022 ↑
13. Prosecutor Vs. Ruggiu, (ICTR-97-32), Judgement (June 1, 2000). https://ijrcenter.org/international-criminal-law/ictr/case-summaries/ruggiu/ ↑
14. Judge Bertram Schmitt, International Criminal Court, https://www.icc-cpi.int/judges/judge-bertram-schmitt, Last Visited 12/04/2022 ↑
15. Prosecutor v. Al Mahdi, ICC-01/12-01/15-434-Red3 25-11-2021 1/26 EC RW (25 Nov. 2021). https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2021_10958.PDF ↑
16. Ibid ↑
17. Available at UNESCO World Heritage Convention, https://whc.unesco.org/en/canopy/timbuktu/, see also T. Joffroy and B. Essayouti – LESSONS LEARNT FROM THE RECONSTRUCTION OF THE DESTROYED MAUSOLEUMS OF TIMBUKTU, MALI(The International Archives of the Photogrammetry, Remote Sensing and Spatial Information Sciences, Volume XLIV-M-1-2020, 2020 HERITAGE2020 (3DPast | RISK-Terra) International Conference), https://hal.archives-ouvertes.fr/hal-02928898/document. ↑