The ICC Accepts First Cultural Heritage Destruction Case

Amy Albanese, Vol. 37 Associate Editor

For the first time in the history of the International Criminal Court at The Hague, an individual will be tried as a war criminal for the destruction of cultural property. Ahmad Al Faqi Al Mahdi, a native of Mali from the Ansar Taureg tribe, came before Judge Cuno Tarfusser on September 30, 2015, charged with the destruction of the UNESCO site of Timbuktu, Mali.[1] Judge Tarfusser set the provisional date for the confirmation of the charges for January 18, 2016.[2] It is alleged that Mr. Mahdi, as the head of the Hesbah (a kind of morality squad) of the radical Islamic group Ansar Dine, was directly involved in the destruction of nine mausoleums and the Sidi Yahia mosque in Timbuktu over a ten day period in 2012.[3] The mausoleums and mosque were destroyed as “totems of idolatry”[4] during the Ansar Dine occupation of Mali.[5] Mahdi is alleged to have been part of the associated Islamic Court of Timbuktu and would have been instrumental in executing its decisions, leading to the destruction of these sites.[6] Mr. Mahdi is charged under the Rome Statute, the founding document of the International Criminal Court. Specifically, the prosecutor, Fatou Bensouda, is charging him under Article 8[7] for the war crime of “intentionally directing attacks against buildings dedicated to religion, education, art, science . . . [and] historic monuments.”[8] The prosecutor called these attacks “grave crimes” and a “callous assault on the dignity and identity of entire populations, and their religious and historical roots.”[9] This trial comes on the heels of the unprecedented destruction of cultural heritage sites by ISIS in Iraq and Syria.[10] The publicity that this trial has received is likely due to the hope that members of ISIS may be prosecuted in a similar manner for the destruction of sites such as Palmyra and Nimrud. In fact, Ansar Dine’s acts closely parallel ISIS in that Ansar Dine recorded the destruction of the monuments and openly claimed responsibility for it.[11] However, while this video evidence will make the trial against Mr. Mahdi more straightforward, this case likely does not signal the beginning of a series of cultural heritage related prosecutions for members of ISIS. Neither Syria nor Iraq are members of the ICC,[12] and therefore do not come under the jurisdiction of the Rome Statute. Yet the trial of Mr. Mahdi is far form meaningless for the current and future protection of cultural heritage. The destruction of cultural property has been a part of armed conflict since long before even the rise of Greek and Roman empires.[13] Statutes such as the 1954 Hague Convention for the Protection of Cultural Property during Armed Conflict, as well as the UNESCO conventions were created in the wake of World War II, when countries hoped never to see the destruction of heritage on such a monumental scale again. However, these statutes and conventions have rarely been enforced and since the beginning of the new millennium the world has witnessed increasing attacks on cultural property. To name just a few, the Taliban notoriously destroyed the two giant Bamiyan Buddha statues in 2001 in Afghanistan as part of its extremist Islamic iconoclasm,[14] and ISIS has proudly boasted of its destruction of ancient cities such as Palmyra and Nimrud, as well as museums, in Iraq and Syria. Despite the existence for over fifty years of international treaties prohibiting such actions, the destruction of cultural property has normally been treated as an adjunct to other war crimes, or worse yet, simply ignored. Making cultural property destruction the focus of a trial shows that the international legal community is ready to fully recognize these acts as war crimes in their own right. While some members of ISIS or Al Qaeda cannot immediately be brought to trial through the ICC, the recognition and enforcement of international law prohibiting the destruction of cultural property still marks an important step for international community towards taking action against the destruction of heritage sites during conflict. This shift ultimately may save cultural property in future conflicts, as well as raise awareness of the current state of cultural property in conflict zones.

[1] The entire city of Timbuktu is considered a UNESCO World Heritage site. Timbuktu rose to prominence in the fifteenth and sixteenth century CE as both a cultural and trade center. Timbuktu had a massive university, holding 25,000 students and 180 schools of Koranic study. UNESCO World Heritage List – Timbuktu, http://whc.unesco.org/en/list/119 (last visited Oct. 11, 2015). [2] See ICC Press Release, Office of the Prosecutor, Ahmad Al Faqi Al Mahdi makes first appearance before the ICC (Sept. 30, 2015), http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1157.aspx. [3] Id. [4] Suspect Arrested in Destruction of Monuments in Mali, N.Y. Times, (Sept. 26 2015), http://www.nytimes.com/2015/09/27/world/africa/suspect-arrested-in-destruction-of-monuments-in-mali.html?_r=0. [5] The mausoleums are the tombs of some of the Koranic teachers from the university. The tombs were widely revered as shrines in Mali. Marlise Simons, Global Court Takes Up Case of Cultural Crimes in Mali, NY Times, (Sept. 30, 2015), http://www.nytimes.com/2015/10/01/world/africa/global-court-takes-up-case-of-cultural-crimes-in-mali.html [6] Id. [7] Prosecutor v. Ahmad Al Faqi Al Mahdi, Case No. ICC-01/12-01/15, Arrest Warrant Against Ahmad Al Faqi Al Mahdi, ICC ¶ 1 (Sept. 18, 2015) http://www.icc-cpi.int/iccdocs/doc/doc2068383.pdf. [8] Rome Statute of the International Criminal Court, July 17, 1998, art. 8(2)(e)(iv), U.N. Doc. A/CONF.183/9 (1998). [9] See ICC Press Release, supra note 2. [10] See Anne Barnard, ISIS Speeds Up Destruction of Antiquities in Syria, N.Y. Times, (Aug. 24, 2015) http://www.nytimes.com/2015/08/25/world/isis-accelerates-destruction-of-antiquities-in-syria.html (stating that “the cumulative destruction of antiquities has reached staggering levels that represent an irreversible loss to world heritage and future scholarship”). [11] See, e.g., Tombouctou – Déstruction des mausolées par Ansar Addine  YouTube, (Jul. 3, 2012) https://www.youtube.com/watch?v=J0gss0mdZUg&list=PLr2oPGORHOEgB6wLqmxBOwaS_w8GNfqzd&index=16 (showing a clip of a French news broadcast that shows the video of the destruction of the mausoleums). [12] See The State Parties to the Rome Statute, ICC, http://www.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx (last visited Oct. 12, 2015). [13] Polybius, a Hellenistic historian writing in the second century BCE, wrote of the destruction and collection of other cities artworks and riches by conquering armies. Polybius, Histories, book 10. [14] See, e.g., W.L. Rathje, Why the Taliban are Destroying Buddhas, USA Today (March 22, 2001), http://usatoday30.usatoday.com/news/science/archaeology/2001-03-22-afghan-buddhas.htm (discussing the destruction of the Bamiyan Buddhas in 2001).