The First Case for the ICC Prosecutor: Attacks on Cultural Heritage

Over the weekend, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, announced an arrest in the Mali situation, charging Ahmad Al Faqi Al Mahdi with the intentional destruction of religious and/or historical monuments. The case is of interest to the United States because of its conditional support for the work of the ICC, as well as its opposition to Islamist, terrorist groups in northern Mali. Al Faqi will have his initial appearance in court in The Hague tomorrow morning.

It is the first case brought by Bensouda, ICC Prosecutor since June 2012, aside from a witness bribery case brought in relation to the prosecution of Jean-Pierre Bemba. She alleges that Al Faqi, a brigade commander in Ansar Dine, a militant Islamist group associated with al-Qaeda in the Islamic Maghreb (AQIM), committed the war crime of intentionally directing attacks against buildings dedicated to religion and/or historical monuments through his involvement in the destruction of nine mausoleums and one mosque in Timbuktu over an 10-day period in 2012.

Timing is everything. At a different moment, there might have been questions about why the Prosecutor would make this her first case, particularly since she opened the Mali investigation nearly three years ago on the basis of allegations of murder, mutilation, torture and rape. But over the last year, attacks against cultural heritage have received prominent attention due to ISIS’s relentless campaign to destroy Christian and Muslim shrines, ancient sites, and artifacts. Last month, ISIS destroyed ancient Roman temples in Palmyra in Syria, dating from the third century. Since 2014, mosques, monasteries, churches and historical sites have been destroyed across Syria and Iraq. In Mosul, the libraries, universities and museum were rampaged and looted.

ISIS and Ansar Dine are certainly not the first groups to target cultural heritage. The Taliban destroyed two Buddhist statues in the Bamiyan Valley in 2001, and attacks on cultural and religious sites were prominent during the wars in the former Yugoslavia. But in prosecutions of war crimes, crimes against humanity, and genocide, cultural attacks can often get lost among charges involving massive atrocities committed against civilian populations. Now the Prosecutor’s new case in Mali puts the war crime of attacking religious and historical sites front and center as an international crime. It will undoubtedly spark renewed discussions about the harms caused by this particular form of criminality, much the way the Lubanga case at the ICC brought new attention to the crime of using child soldiers.

Not only do these acts of cultural destruction represent attacks on all of humanity, as declared the director general of UNESCO, they are often intimately tied in with the gravest crimes we know. In the Trial Chamber judgment convicting Radislav Krstić for his role in the Srebrenica genocide, the court underscored the connection between cultural attacks and the crime of genocide: “The Trial Chamber however points out that where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group” (para. 580). Perhaps the Prosecutor’s case in Mali will bring some of the additional urgency countering this crime deserves.

In addition, the case says something about the ICC itself. The ICC only has the resources to prosecute a few cases from each situation, and must therefore be strategic in the cases it chooses. Often that will mean seeking to prosecute those most responsible for the crimes, but it may also include focusing on some particular form of criminality. When members of Ansar Dine committed these alleged crimes, they did so on video and openly declared responsibility, rendering their acts particularly notorious.

But it is also the case that case selection is part strategy and part opportunity. Although the suspect in this case does not appear to be at the highest echelons of Ansar Dine — he is identified as a brigade commander and is charged not with ordering or directing the destruction of the mausoleums and mosque but with committing the attacks with others, or facilitating or contributing to them — it may be that after three years of investigation, it was the strongest case that presented itself. In addition, the suspect’s presence in Niger may have presented an opportunity for arrest that the Prosecutor did not want to lose. Sometimes it is better to pursue a suspect you can get rather than one who will likely become just another fugitive. 

About the Author(s)

Alex Whiting

Professor of Practice, Harvard Law School; former federal prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston; served as Investigations Coordinator and Prosecutions Coordinator at the International Criminal Court. Follow him on Twitter (@alexgwhiting).