The ICC’s Al Mahdi case is (also) a political trial, and that’s fine!

Last week, the International Criminal Court (ICC or Court) in The Hague commenced and concluded a historically short trial against Ahmad Al-Faqi Al-Mahdi. Al Mahdi was prosecuted for the war crime of intentionally destroying cultural, religious and historic monuments, namely the mausoleums in Timbuktu. This is the first time that the ICC has prosecuted crimes relating to the protection of cultural heritage. It is also a first for the Court to prosecute an Islamic extremist, and the first time that a defendant has pleaded guilty, significantly simplifying and shortening the trial.

After all the ICC’s recent problems with lack of evidence, witness intimidations, and protracted procedures, this short and in all likelihood successful case (the decision is expected on 27 September) can easily be called a resounding win. At the same time, even this case has not escaped criticism (see for example here and here). Why was Al Mahdi only prosecuted for destroying cultural heritage, even though he also allegedly committed murder and rape? And why is the Court spending its scarce resources prosecuting this mid-level militiaman rather than on the leaders behind the violence in Mali?

Questions like these are justified, because the ICC fails to explain why it makes the choices it does. This is a missed opportunity. In recent years, the Court has increasingly been the subject of sharp critique. Scholars, activists, and politicians have accused the ICC of being anti-African, of failing to meet the needs of victims, and of being a “political” court. It is true that the complaint that the Court is “political” cannot always be separated from the self-interest of leaders attempting to evade the Court’s docket. But we should not dismiss this critique, as the Court tends to do. Instead, we should recognize that the ICC is indeed (also) a political court.

To certain extent, any court and any trial is “political” by which I mean that they involve questions of social power, legislative choice, prosecutorial discretion, and judicial interpretation (see also Gerry Simpson, Law, War & Crime (Polity, 2007), p.14). However, international criminal trials are particularly political. The facts, causal relations and contexts are usually highly contentious in the cases that land before these judges. What these facts are and how they should be understood will usually form part of the conflict that is adjudicated. As the court needs to consider them, the court cannot avoid but taking at least some political stance (see Martti Koskenniemi, ‘Between Impunity and Show Trials’ (2002) 6 Max Planck Yearbook for United Nations Law at 29-30). Yet this does not mean that such deliberations cannot occur in accordance with the rules of judicial interpretation and other legal procedural guarantees. Although also legal processes (if indeed observant of the legal rules of the game), international criminal trials are however also a space in which politics occur and materialize rather than a space liberated from politics, as the ICC and international criminal justice advocates often would have us believe. That these trials are “political” is not because they would merely reflect political forces or lack legal foundation, but because they are a space in which priorities of what should be adjudicated in the eyes of the world and in pursuit of “global justice” are enforced and because they are a space in which the Court hears contested narratives and decides what narrative to endorse, notwithstanding the requirement (and prudence) to do so in accordance with legal rules and principles. Moreover, as Nouwen and Werner explain in their EJIL article, the point of a (political) trial is not to dismiss law as irrelevant, but rather to embrace the legal realm and use its independent and impartial image to legitimate the Court’s cause and struggle, using the integrity of the legal system for a (political) fight, which is deemed to be the fight worth fighting for the good, condemning what is evil: in this case, the destruction of cultural heritage and Islamic extremism.

The Court makes choices about who it prosecutes and for what—choices that are unavoidably political—and that is fine. What is a subject for concern is the Court’s lack of transparency about its politics. We are entitled to an explanation from the Court about why it makes the choices it does, so that they can be the subject of debate and discussion.

The International Criminal Court is one criminal court in The Hague, with a small staff (it has only several dozen investigators for all its cases), but whose jurisdiction spans a world full of atrocious violence. As such, it is incapable of operating without choices and priorities. It is not comparable to a national criminal court whose officers are charged with investigating and prosecuting all serious crimes. The ICC faces cases that are incredibly complex, and must do so with a small budget and strict rules that severely constrain its ability to act. Within these limitations, the Court must execute its agenda as effectively as possible.

The ICC’s choices reveal that its agenda is not only to get justice for the individual victims of mass violence, but also to act as a symbolic court, strategically selecting cases that make evident to the world what behavior is absolutely and universally condemned. The Court must therefore be politically savvy: a trait we can see clearly in the Al Mahdi case. In a world beset by Islamic fundamentalist violence, in which we powerlessly observe the destruction of cultural heritage in Syria, Iraq and Afghanistan, the Court chose to take up a case that condemns this loss.

Al Mahdi may not be the most responsible perpetrator of violence in Mali, or have committed the worst of all possible crimes. But he doesn’t have to be. This case addresses a serious issue (the loss of cultural identity and dignity through the destruction of art and history), sets an example for other perpetrators, and was relatively cheap and fast to conduct due to the video evidence documenting the crimes. This was a good and legitimate way to allocate resources, and a signal to those in other conflicts that the destruction of cultural heritage is an international crime that the Court will prosecute if it gets the chance. For whatever that is worth.

Remarkably, the ICC continues to deny that it is “political”. It is afraid that if it admits this basic fact, that it will be deemed non-legal and unfair. But the Al Mahdi case is an excellent chance for the Court to show that just because a trial is “political” does not mean that it cannot be conducted in accordance with judicial independence, impartiality, and protection of the defendant’s rights to a fair trial. Denying the Court’s political nature makes no sense: given its jurisdictional limitations and scarce resources, the ICC simply has to be political. Instead of denying its politics, the Court should move toward openness and transparency, explaining its choices and why they are made, and engaging in a dialogue on these choices. This openness would make the court more rather than less effective, encouraging democratic engagement with its mission, rather than sweeping its politics under the carpet as currently happens.