The Significance of the ICC’s First Guilty Plea

Yesterday Al Faqi Al Mahdi of Mali pled guilty at the International Criminal Court (ICC) to one count of directing an attack against buildings dedicated to religion and historic monuments under article 8(2)(e)(iv) of the Rome Statute. Specifically, Al Mahdi admitted in court that in June and July, 2012, he directed and organized a group of men in the destruction of nine mausoleums and one mosque in Timbuktu. He participated himself in half of the destructions, and justified the attacks to journalists afterwards. The mausoleums and mosque were central to the religious and cultural life of Malians in Timbuktu, and nine of the ten sites destroyed by Al Mahdi were protected on the UNESCO World Heritage List.

The case is important because it has focused attention on the crime of intentionally attacking religious, cultural and historic sites during armed conflict. As I wrote earlier, such attacks have increasingly become a tactic of those targeting ethnic or religious groups, as demonstrated by the deliberate destruction of protected sites during the wars in the former Yugoslavia, by the Taliban in Afghanistan, and by ISIS in Syria and Iraq. These attacks result in genuine victimization. The Malian Minister of Culture described the destruction of the Timbuktu monuments as “an attack on what fuels our soul, on the very essence of our cultural values. Their objective was to destroy our past, our culture, our identity, and in fact our dignity.”

Some have deplored the failure of the ICC to bring broader charges of murder and sexual violence in the Mali case, either against Al Mahdi or more senior commanders. This criticism presumes, however, that the ICC is more in control of its own destiny than it is. The ICC would bring additional charges in Mali if it could, if it had the evidence in hand. But such evidence is often extremely difficult to come by given the ICC’s extraordinarily limited tools and resources, and the acute security challenges faced by investigators and witnesses. And in the past, the ICC has been roundly criticized by judges and commentators when it has brought forward cases based on thin evidence. 

In fact, in many ways the ICC has made the best of a difficult situation with the Al Mahdi case. While in other situations the ICC’s cases against senior leaders have stalled because of difficulties in obtaining either the evidence or the accused – such as in Kenya, Darfur and Libya – in this case the ICC successfully pursued a more modest case against a mid-level commander. While the prosecution cannot simply abandon the pursuit of higher-ups and those most responsible, there is also virtue in putting together smaller yet worthy cases that will help the court continue to grow as an institution and allow it to build up towards bigger cases. In the Al Mahdi case, it is clear that the defendant has already provided significant, detailed information about senior figures in Ansar Dine and Al Qaeda in the Islamic Magreb (AQIM), and redactions in publicly-available plea agreement suggest that he has further agreed to cooperate and testify against other accused persons. Moreover, the narrow scope of this case is actually one of its strengths: the crime of attacks on religious and historic monuments would not get nearly as much attention if it were subsumed within a larger case.

The Al Mahdi case is also significant because it is the first guilty plea at the ICC. It will always be a challenge to persuade defendants at the ICC to plead guilty, because often they will be ideologically motivated and therefore disinclined to admit criminal responsibility, but as I wrote here, the ICC will take a big step toward encouraging future admissions of responsibility if it is able to develop a reliable practice around guilty pleas. The prosecution at the ICC should build on this first case by developing and publishing a policy on guilty pleas, explaining how and under what circumstances it will enter into an agreement with an accused.

In that regard, it will be important to see what sentence the judges ultimately impose on Al Mahdi. The prosecution has agreed to recommend a sentence in the 9-11 year range. If the judges choose a higher sentence, it will make it much more difficult to persuade the next defendant to enter into a plea agreement with the prosecution. Fortunately, in this case that is unlikely to occur. In fact, it is much more likely that the judges will impose a lower sentence. Jean-Pierre Bemba received an 18-year sentence for his culpability for the crimes of murder and rape, and Germain Katanga was sentence to 12 years for crimes including murder and the targeting of civilians. And both of those men went to trial.

Al Mahdi began cooperating and confessed before he was even charged, and he signed a plea agreement last February, before there was even a confirmation hearing in his case. At the guilty plea hearing yesterday, he expressed remorse and advised other Muslims not to follow his path. Moreover, while it is true that he organized and directed the destruction of the monuments in Timbuktu, he initially counseled against their destruction. When he did act, he did so willingly to be sure, but it was also pursuant to an order given to him by the head of Ansar Dine and transmitted to him through a senior member of AQIM. His cooperation and the information that he has provided to the prosecution are further mitigating factors. Given all of these circumstances, it seems likely that the judges will sentence Al Mahdi to the lower-end of the recommended range, if not below.

In the end, the Al Mahdi case is perhaps a small case as far as international criminal cases go, but a significant one that will contribute to shaping both the law and the institution. 

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).