Q&A: The Al Mahdi case at the ICC

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(Paris, The Hague, Bamako) Ahead of Al Mahdi’s trial, scheduled to open on Monday 22 August 2016 at the International Criminal Court (ICC), FIDH and AMDH presents the case in seven Questions and Answers.

1.Who is Al Mahdi and what has he been convicted of?

2. Can the destruction of religious buildings and historic monuments amount to a war crime?

3. To which reparations can Al Mahdi be condemned? What were the observations of FIDH and AMDH?

4. Will victims of the crimes allegedly committed by Al Mahdi be allowed to participate in his trial?

5.Why is the Al Mahdi case before the ICC?

6. Has Al Mahdi committed other crimes?

7. Are other legal proceedings underway in relation to crimes allegedly committed by Al Mahdi and other members of AQMI and Ansar Eddine?

1. Who is Al Mahdi and what has he been convicted of?

Ahmad Al Faqi Al Mahdi, also known by his nom de guerre Abou Tourab, was born in approximately 1975 in Agoune, 100 kilometers west of Timbuktu in Mali. He was a member of the radical Islamic group Ansar Eddine, a Malian armed jihadist group linked to Al Qaeda in the Islamic Maghreb (AQIM). As head of the Islamic Police based in Timbuktu, he was one of the four commanders of Ansar Eddine responsible for the brutal occupation by jihadist armed groups in Timbuktu. Furthermore, until September 2012, he was head of the “Hesbah” (“Manners Brigade”) and was also involved in the work of the Islamic Court of Timbuktu, including implementation of its decisions. [1]

In January 2012, Mali faced a Tuareg armed rebellion in the north of the country. The National Liberation Movement of Azawad (MNLA) quickly launched an offensive, which was opportunely joined by Islamist groups present in the Sahel zone (Ansar Eddine, Al Qaeda in the Islamic Maghreb (AQIM), the Movement for Oneness Jihad in West Africa (MUJAO), and Boko Haram). Hostilities were conducted in flagrant violation of international humanitarian law. The main northern cities fell into the hands of armed groups from early April 2012 until January 2013, at which point French and Malian troops intervened.

Between 30 June 2012 and 10 July 2012 when the facts allegedly giving rise to Al Madhi’s individual criminal responsibility took place, Timbuktu was under the control of AQMI and Ansar Eddine. During this period, Al Mahdi worked closely with the leaders of these two armed groups, at the epicentre of the structures and institutions they had established. It is alleged that he was an active personality in the context of the occupation of Timbuktu.

On 27 September 2016, Trial Chamber VII of the ICC found Al Mahdi guilty of the war crime of destructing cultural heritage in Timbuktu and sentenced him to 9 years of imprisonment. All the attacked buildings and monuments were under UNESCO protection, and most are also listed as world heritage sites. [2]

2. Can the destruction of religious buildings and historic monuments amount to a war crime? ?

Yes. Article 8.2(e)(iv) of the Rome Statute of the International Criminal Court defines war crimes as including “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”.

This is the first judgement on these charges in a case before the ICC. In the verdict, the judges emphasised the gravity of the impact of the crime of destroying the historic monuments, stating that the attack on the sites “appears to be of particular gravity as their destruction does not only affect the direct victims of the crimes, namely the faithful and inhabitants of Timbuktu, but also people throughout Mali and the international community.”

3. To which reparations can Al Mahdi be condemned? What were the observations of FIDH and AMDH?

The ICC has established principles for reparations as set out in Article 75 of the Rome Statute: “The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation or rehabilitation.” Victims who are entitled to compensation from the ICC are natural or legal persons who have suffered personal injury, directly or indirectly, as a result of the crime for which Al Mahdi was found guilty.

During the reparations procedure, the Court may also invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States (Article 75 (3)). On 2 December 2016, FIDH and AMDH submitted observations on the reparations procedure.1 We emphasised that the victims in this case that are eligible for reparations in this case have to include: the guardian families of the mausoleums, but also the families whose graves are adjacent to the mausoleums, certain legal entities (The office of the cultural mission of Timbuktu and the municipality of Timbuktu), the population of Timbuktu as a whole, as wekk as the population of Mali.

According to FIDH and AMDH, these victims have suffered different types of harm: direct and material harm, economic harm, but also, and most importantly, suffered even still today by the population of Timbuktu and the population of Mali as a whole is the moral and psychological harm.

4. Will victims of the crimes allegedly committed by Al Mahdi be allowed to participate in his trial?

Participation in trial proceedings is a right guaranteed to victims by the ICC Statute. Their participation, as envisaged under Article 68.3 of the Rome Statute, is a key part of the accountability process and thus constitutes an essential component of justice.

To date, three victims have been granted the ability to participate with the common legal representation of an external lawyer. An additional six applications for participation have been filed.

The Trial Chamber found that each of the victims accepted to date have suffered ’personal and economic moral harm as a result of the events that come within the parameters of the charges confirmed against Mr Al Mahdi […].’ The Chamber stressed that precedent indicates that ’harm’ can include emotional suffering and economic loss in addition to physical harm.

Victim participation is particularly significant in this trial, as victim experiences demonstrate how the destroying cultural property doesn’t merely damage buildings and monuments, but also harms the social, cultural and historic fabric of communities.

5. Why is the Al Mahdi case before the ICC?

Mali ratified the ICC Statute on 16 August 2000. The situation in Mali was referred to the Court by the Government of Mali on 13 July 2012. After conducting a preliminary examination of the situation, on 16 January 2013 the Office of the Prosecutor opened an investigation into alleged crimes committed on Malian territory since January 2012. On 13 February 2013, the Malian government and the ICC signed a cooperation agreement in accordance with Section IX of the Rome Statute.

The warrant of arrest against Ahmad Al Faqi Al Mahdi was issued by ICC’s Pre-Trial Chamber I on 18 September 2015. On 26 September 2015, he was surrendered to the ICC by the authorities of Niger and transferred to the Court’s Detention Centre in the Netherlands.

On 30 September 2015, Al Mahdi appeared before the single Judge of Pre-Trial Chamber I, Judge Cuno Tarfusser, in the presence of the Prosecutor and the Defence. He was represented by his Duty Counsel, Mohamed Aouini. [3]

On 1 March 2016, Pre-Trial Chamber I held a hearing on the confirmation of charges, and on 24 March 2016 confirmed the war crime charge regarding the destruction of historical and religious monuments in Timbuktu (Mali), and committed Mr Al Mahdi to trial before a Trial Chamber.

The trial only took three days, from 22-24 August 2016, where Al Mahdi pleaded guilt.

He was sentenced to 9 years of imprisonment on 27 September 2016, as a co-perpetrator, for committing the war crime of intentionally directing attacks against the following protected objects in Timbuktu between around 30 June 2012 and 11 July 2012: i) The Sidi Mahamoud Ben Omar Mohamed Aquit Mausoleum; ii) The Sheiks Mohamed Mahmoud Al Arawani Mausoleum; iii) The Sheiks Sidi El Mokhtar Ben Sidi Mouhammad Al Kabir Al Kounti Mausoleum; iv) The Alpha Moya Mausoleum; v) The Sheikh Mouhamad El Mikki Mausoleum; vi) The Sheikh Abdoul Kassim Attouaty Mausoleum; vii) The Sheikh Sidi Ahmed Ben Amar Arragadi Mausoleum; viii) The door fo the Sidi Yahia Moque; and ix) and x) The two mausoleums adjoining the Djingareyber Mosque. In determining the sentence and notwithstanding the gravity of the crime and its impact in Mali, the Court also found 5 mitigating circumstances: (i) his admission of guilt; (ii) his cooperation with the Prosecution;(iii) the remorse and the empathy he expressed for the victims;(iv) his initial reluctance to commit the crime and the steps youtook to limit the damage caused; and,(v) even if of limited importance, his good behaviour in detention.1

6. Has Al Mahdi committed other crimes?

FIDH, together with its member organisation the Malian Association for Human Rights (AMDH), conducted field missions and investigations in Northern Mali during which the testimonies of numerous victims of jihadist armed groups were collected. On 6 March 2015, FIDH, AMDH and five other human rights organisations in Mali filed a complaint on behalf of 33 victims of crimes committed in Timbuktu before the High Court of the Commune 3 of Bamako. The complaint accuses Al Mahdi and 14 others of war crimes and crimes against humanity, including sexual and gender-based crimes. This filing follows an earlier complaint filed in November 2014 on behalf of 80 victims of rape and sexual violence committed during the occupation of northern Mali.

The 33 victims denounced the atrocities brought about by the Islamist police force and in particular its “Centre for the implementation of the suitable and prohibition of the blameworthy” (Centre d’application du convenable et de l’interdiction du blâmable) of the “Manners’ Brigade” led by Abou Tourab during the early stage of the occupation of Timbuktu. The crimes denounced include torture, arbitrary detentions, rape, sexual slavery and other forms of sexual violence. [4]

In this context, FIDH has already sought to encourage the Office of the Prosecutor to also consider credible allegations of Al Mahdi’s involvement in further international crimes committed against civilians, including rape, sexual slavery and forced marriage.

7. Are other legal proceedings underway in relation to crimes allegedly committed by Al Mahdi and other members of AQMI and Ansar Eddine?

Beyond the 120 anti-terrorist investigations which led to practically no criminal trials, the Malian judicial authorities are only investigating two cases concerning crimes against humanity and other grave human rights violations committed in northern Mali since 2012. These two cases, initiated by FIDH and AMDH together with five other Malian human rights organisations in the name of 123 victims, are stagnating and no substantive progress has been seen. The suspects – despite being located – have been freed as a result of lack of willingness and resources on the part of the authorities. Numerous suspects identified in the complaint filed by our organisations in March 2015 have been freed, are abroad or are otherwise not at all concerned by it. This is principally the result of the application of “trust measures” linked to the Peace and Reconciliation Agreement signed in Bamako on 20 June 2015, to requests for prisoner and hostage exchanges and to a lack of solid evidence against those arrested during military operations. [5]

In Mali, the trial of former coup leader Amadou Aya Sanogo and 17 other top officials of the junta in power in 2012 for the execution of 21 soldiers began on 30 November 2016 and the court decided on 8 December to refer the case to “la première session d’assises” of 2017. In addition, on 18 August 2017 the trial of the former commissioner of the Islamic police of Gao, Aliou Mahamane TOURE commences before the Court of Assises in Bamako. FIDH and AMDH represent around ten victims in this case. The opening of this trial is an important step as this is the first trial concerning crimes committed by Islamist groups against civilian populations during the occupation of the north of the country in 2012-2013. Aliou Mahamane TOURE was indicted in 2014 for war crimes and other human rights violations, as well as for the attack on the internal and external security of the state, the association of criminals and terrorism, while he was the head of the Islamic police during the occupation of Gao by the terrorist group MUJAO in 2012-2013.

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