The Al Mahdi Judgment and Sentence at the ICC: A Source of Cautious Optimism for International Criminal Justice

On 27 September 2016, Trial Chamber VIII of the International Criminal Court (ICC) rendered its judgment and sentence in Prosecutor vs. Ahmad Al Faqi Al Mahdi. This case deals with the destruction in Timbuktu, Mali of ten sites of historical, religious and cultural significance. Mr. Al Mahdi was charged under Article 8(2)(e)(iv) of the Rome Statute, which criminalizes ‘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.’

The destruction of mausoleums and other buildings happened during the period of occupation of Timbuktu by the groups Ansar Dine and Al-Qaeda in the Islamic Maghreb between April 2012 and January 2013. These armed forces imposed religious and political edicts on the territory of Timbuktu and its population. They did so in a number of ways including the deployment of the morality brigade called Hesbah. Mr. Al Mahdi was appointed head of this organization due to his reputation as a religious scholar with extensive Koranic education and thorough knowledge of Islam. His task was to provide the administration with guidance on matters of religion. When consulted on the issue of destroying Timbuktu’s mausoleums – UNESCO protected sites of worship and pilgrimage – Mr. Al Mahdi expressed the opinion that most Islamic jurists agree on the prohibition of any construction over a tomb, but recommended not destroying them (para. 36). Nevertheless, after having received the instructions to proceed, he oversaw the demolition of ten sites and personally took part in the destruction of five of them.

The case is innovative and exemplary and a cause for optimism. Some of its unique aspects have been discussed here, here, here, and here. This post summarizes its main points in the light of the recent judgment. 

First of all, it is the pilot case at the ICC where the accused admitted guilt pursuant to Article 65 of the Rome Statute. This provision does not contain an exact replica of the plea bargaining procedure accepted in common law jurisdictions as it leaves the judges with the final word in matters relating to the modification of the charges, the admission of guilt or the penalty to be imposed. It is, however, a mechanism ensuring that the accused in international trials assume responsibility for their acts. This is important because the acceptance of personal responsibility for one’s crime is commonly a prerequisite for the perpetrator’s rehabilitation and also for the broader healing processes in the affected communities. Expressions of remorse thus help to further one of the objectives of international criminal law, that of reconciliation. In a laudably succinct judgment (49 pages), the judges referred exclusively to the operative facts in this case and endorsed the Prosecutor’s suggestion for Mr. Al Mahdi’s sentence, ruling on the term of 9 years. One can conclude, therefore, that the pilot case under Article 65 was a success.

Secondly, and it follows from the previous point, the trial of Mr. Al Mahdi was the shortest in the history of the ICC. It lasted only three days in August 2016, during which the accused made an admission of guilt and the Prosecution presented testimony of three witnesses. The time that lapsed between Mr. Al Mahdi’s surrender to the ICC and the judgment is exactly one year. Compare this with the Lubanga case that lasted nearly a decade starting with Mr. Lubanga’s arrest under a warrant issued by the ICC in March 2006 and concluding with the Appeals Chamber judgment in December 2014. Granted that one does not want to see fair trial guarantees sacrificed in favor of a quick resolution of the case, the Al Mahdi case demonstrates how international criminal law can strike a balance between pragmatic considerations of efficiency and principled demands of justice in practice.

Thirdly, the subject matter of this case raises the profile of such an important objective of the international community as protecting common cultural heritage. Art, architecture and literature are ‘anchors’ for humanity, reminding us of the values tying communities together. Their preservation is thus essential for the formation of collective consciousness on both local and global levels. The Al Mahdi case continues the trend of thematic prosecutions at the ICC with its first case against Mr. Lubanga focusing on crimes against children and the Prosecutor’s recently issued  internal policy brief stressing her intention to give particular consideration to crimes resulting in the destruction of the environment and illegal land grabs (para. 41 of the brief). It is easy to criticize strategizing when choosing some heinous acts for prosecution but not the others. However, in light of the limited resources available to the ICC, such hard decisions are inevitable. International criminal law is symbolic in that it produces only ‘samples’ of justice. This is due to its inherent limitations caused by the selectivity of prosecutions, frequent lack of domestic support, patchy enforcement powers and financial constraints. At the same time, the symbolic mission of international criminal justice allows it to make an emotional appeal to a wider community by emphasizing certain messages through its judgments. The Al Mahdi Trial Chamber underscored the fact that the targeted buildings ‘were not only religious buildings but had also a symbolic and emotional value for the inhabitants of Timbuktu’ (para. 79).

Finally, a few words must be said about sentencing.  Following the test established by prior case law, the Al Mahdi Trial Chamber evaluated the gravity of the crime and the existence of mitigating and aggravating circumstances. The first category also includes the assessment of the degree of participation of the accused and his intent.  The judges sentenced Mr. Al Mahdi to 9 years of imprisonment, correctly stressing that crimes against property are of less gravity than those against persons. This appears to be a reasonable number if compared with the other sentences rendered by the ICC up to this date: 14 years imposed on Mr. Lubanga, 12 – on Mr. Katanga, and 18 – on Mr. Bemba Gombo. The central argument in determining the appropriate sentence was Mr. Al Mahdi’s admission of guilt and ensuing cooperation with the Prosecution, which started shortly after the initiation of proceedings. This was deemed ‘undoubtedly a mitigating circumstance’ (para. 100). It is of particular significance for deterrence purposes that Mr. Al Mahdi in his role as a religious scholar showed repentance and called on people not to become involved in the same acts that he was involved in ‘because they are not going to lead to any good for humanity’ (para. 103). Such behavior attests to the potential for rehabilitation of the convicted person. Article 10(3) of the ICCPR stresses reformation and social rehabilitation of the offender as one of the aims of the penitentiary system. International criminal law, for obvious reasons, often overlooks this important sentencing objective, but in the case of Al Mahdi, the judges were able to stress the fact that Mr. Al Mahdi’s admission of guilt and cooperation with the Prosecution show that he is likely to successfully reintegrate into society (para. 97).

In sum, Al Mahdi successfully demonstrated (1) the operation of the procedure of the admission of guilt at the ICC, (2) effective balancing of the demands of justice and expediency, (3) the symbolic importance of protecting common cultural heritage, and (4) the rehabilitative potential of sentences rendered for the commission of core international crimes. These achievements taken together attest to the potential of international criminal law to embrace its own limitations. It is evident that the discipline is capable of transforming itself to meet the challenges presented by frequently cited lack of resources and enforcement powers. This case is one example of the ways in which international criminal law can use its restrictions to its own advantage.