In (limited) defence of the ICC in the Al Mahdi case
By Ebba Lekvall,* Tara Van Ho,** Carrie Comer***
A healthy debate on the work of the International Criminal Court (ICC) is both necessary and important. However, we felt that the recent blog post, ‘The Al Mahdi Case: Stretching the Principles of the ICC to the Breaking Point?’ was off balance and needs to be addressed.
There are very legitimate reasons to criticize the Office of the Prosecutor (OTP) in the Al Mahdi Case, including on the narrow scope of charges brought. For example, FIDH and Malian human rights organizations have filed criminal complaints against Al Mahdi and others before Bamako courts, alleging the commission of additional serious war crimes and crimes against humanity, including rape and sexual slavery. Considering the OTP's Policy Paper on Sexual and Gender-based Crimes, we would expect and hope that further investigations and prosecutions of those most responsible for such crimes will soon follow. But, the criticisms levelled in the piece by Eva Vogelvang and Sylvain Clerc (“the authors”) seem to ignore the foundations of public international law in order to justify conclusions we find to be both dangerous and unwarranted.
Given the importance of this blog to discussions about the Court’s work, we felt a response was necessary. In this post, we address each of the questions Ms Vogelvang and Mr Clerc raised: is the crime sufficiently grave to trigger the Court’s jurisdiction; does Al Mahdi bear the greatest responsibility and; does complementarity preclude the Court from exercising its jurisdiction in this case? As we will explain here, we believe the appropriate answers are, respectively: yes; some of it; and absolutely not.
It is helpful to start with the facts of the case: Ahmad Al Faqi Al Mahdi was accused of being a member of Ansar Eddine, which is associated with Al Qaeda in the Islamic Maghreb. He was the head of ‘Hisbah’, a body set up to “uphold virtue and prevent vice” in the areas around Timbuktu, Mali, controlled by the Ansar Eddine and other Islamist armed groups. At the ICC, he was prosecuted for – and pled guilty to – the destruction of 10 historical and religious monuments, which constitutes war crimes under the Rome Statute. On 27 September 2016, Al Mahdi was sentenced to nine years imprisonment for these crimes. In a separate case in Mali, he is charged with terrorism.
All listed war crimes are sufficiently grave on their own
The ICC’s Rome Statute gives the Court jurisdiction over the destruction of religious and historic buildings “provided they are not military objectives” (Art. 8(2)(e)(iv)). The choice to include the destruction of cultural or religious buildings in the Rome Statute is not a surprising one. In conflicts around the world, religious, historic and cultural property has been destroyed as a means to ethnically cleanse areas of a certain population.
The authors, however, suggest that the crime of destruction of religious buildings is only sufficiently grave if it is committed alongside other war crimes. They believe that “one must assume that the drafters [of the Rome Statute] envisaged that these crimes would only be prosecuted once committed in combination with other crimes that qualify as a war crime.” To support their argument, they point to the ICC case of Bosco Ntaganda, where “the destruction of religious buildings is merely one charge out of thirteen war crimes and five crimes against humanity allegedly.”
This is where we believe the authors fail on the fundamentals of public international law. Article 31 of the Vienna Convention on the Law of Treaties (VCLT), which is generally believed to be customary international law, states that treaties “shall be interpreted in good faith in accordance with the ordinary meaning to given to the terms… in their context and in the light of [the treaty’s] object and purpose” (emphasis ours).
We cannot conceive of any way in which the “ordinary meaning” of the Rome Statute requires that more than one type of war crime be charged. The closest support we can find to the authors’ position is Article 8(1), which provides jurisdiction when the war crime is part of a “plan or policy” or part of a “large-scale commission” of the crime. In other words, someone may commit a war crime while being part of a larger policy or plan but without committing multiple crimes themselves. This paragraph – in its ordinary meaning – does not require that any single individual be responsible for, or charged with, more than one crime or type of crime.
Therefore, without any indication in the text suggesting otherwise, the ordinary meaning of the Rome Statute indicates that each listed crime is on its own sufficiently grave to trigger the Court’s jurisdiction when other conditions are met (i.e., part of an armed conflict; personal jurisdiction, etc.). Moreover, while the authors say that they do not dispute the gravity of the destruction of religious or historic buildings, they argue that the charges against Mr Al Mahdi “as a whole” are insufficient. The authors note that the OTP has found the “scale, nature, manner or commission of the crimes and their impact” should be considered when determining whether a crime is sufficiently grave.
Perhaps we might – might – be inclined to agree with the authors’ conclusion on the gravity issue if Mr Al Mahdi were charged with the isolated destruction of a single building.
He is not.
The charges relate to his direct and indirect (commission) participation in the organized and systematic (scale, nature, and manner) destruction (nature and manner) of ten (scale) religious and cultural buildings that were not legitimate military targets.
Surely, the fact that he was part of an organized leadership that directed and carried out the destruction of multiple buildings as a policy of assault indicates that the charge is sufficiently grave. The only way to suggest otherwise is to find that the destruction of religious and cultural buildings alone is insufficient for the Court’s jurisdiction. As we noted earlier, this would fly in the face of the treaty itself.
Mr Al Mahdi is one of those with the greatest responsibility
The authors also question whether Al Mahdi bears the greatest responsibility for the destruction of the buildings. They argue that Al-Mahdi’s position as the head of the ‘Hisbah,’ a group set up to uphold public morals and prevent vice, “does not make him the individual who bears the greatest responsibility for the destruction of religious buildings”. Here, the authors seem to suggest that the ICC is bound to charge only the one individual with the greatest responsibility. This interpretation would obviously make the Court’s work much easier – it could perhaps limit the Court’s jurisdiction to only the head of each armed group. But that is not what the Statute requires.
Multiple people can bear equal responsibility – or the “greatest responsibility” – simultaneously through very different actions. Those with the “greatest responsibility” can also have different ranks, both in terms of title and in terms of responsibility. Indeed, the OTP has stated, not for the first time, that “the notion of the most responsible does not necessarily equate with the de jure status of an individual within a structure”. The OTP has also stated that it “may also decide to prosecute lower level-perpetrators where their conduct has been particularly grave or notorious.”
Sometimes lower ranked officials can bear greater responsibility - they are closer to the commission or the organization of the crime, and may have particularly relevant information that higher ranked officials do not. Failing to prosecute these individuals because of their rank would be an affront to the victims and defeat the purpose of international criminal justice. Mr Al Mahdi is just such an official. He was not one of the leaders of the relevant armed groups, but he was the head of a department the armed groups relied on to achieve their goals. As the head of this department, he was not only one of those with leadership responsibility, but he was also directly involved in the organization and commission of the crime. Therefore, he bears great responsibility – even if he does not bear it alone because multiple people, some higher in rank, took part in the crime.
Complementarity is not triggered by Niger's terrorism charge
The authors only briefly address what they consider to be the issue of complementarity in the case, and they unfortunately get it very wrong.
The authors argue that the confirmation of charges was “remarkable given that Al Mahdi had already been indicted for terrorism in Niger before the ICC issued its arrest warrant.” We agree with the authors that the Rome Statute deems a case inadmissible if it “is being investigated or prosecuted by a state which has jurisdiction over it, unless the state is genuinely unwilling or unable to carry out the investigation or prosecution” (Article 17). However, the authors seem to have misunderstood Article 17. They seem to suggest that any national criminal charge would preclude the ICC from exercising jurisdiction. This is a dangerous line of reasoning as it would encourage national governments, to which defendants are affiliated, to charge for lesser crimes like ordinary assault or tax evasion, so as to avoid the ICC’s jurisdiction.
According to Article 17, for complementarity to prevent the ICC’s jurisdiction, the national jurisdiction needs to charge for the crimes listed in the ICC Statute: war crimes, crimes against humanity and genocide.
Terrorism is not a crime under the jurisdiction of the ICC. As such, the principle of complementarity is not triggered.
But, even if Niger had charged Al Mahdi with crimes under the ICC’s Statute, as the authors recognized, Niger “transferred him into the custody of the ICC and relinquished their jurisdiction over him.” While the authors conclude that “Niger never indicated that it was not willing or able to prosecute Al Mahdi”, transferring a suspect to the ICC would normally be seen as an indication of either inability or unwillingness to prosecute. There is simply no other reason for a state to transfer a suspect.
We believe that Ms Vogelvang and Mr Clerc fail to provide a persuasive reason in their proposition that the Court should have refrained from exercising jurisdiction for reasons of gravity or complementarity. As pointed out above, there is no reason to believe that the Rome Statute should be read to imply that charges of war crimes have to include a minimum of two listed crimes in order to be sufficiently grave enough to trigger the ICC’s jurisdiction. The authors’ argument about complementarity is equally unsuccessful.
Furthermore, the ICC must not be limited in the crimes it prosecutes within the Rome Statute. Anything else would undermine its raison d’être , which must include the promotion of respect for the laws of armed conflict, and a rebuke of those who would systematically and flagrantly disregard the international community’s interest in protecting, not just civilians, but also civilian objects and cultural property.
*Ebba Lekvall is a PhD Candidate at University of Essex School of Law, focusing on transitional justice. She also holds an LL.B. from University of Oxford, an LL.M. in International Human Rights and Humanitarian Law, with distinction, also from University of Essex.
**Tara Van Ho, J.D., Ph.D., is a post-doctoral fellow at Aarhus University. She investigates the intersection of IHL, transitional justice, and business and human rights. She is also a licensed attorney in the US State of Ohio.
***Carrie Comer (MSt, University of Oxford) is the Permanent Representative to the ICC for the International Federation for Human Rights (FIDH). The views expressed herein are her own and do not necessarily reflect FIDH policy.
Lead image: Ahmad al Faqi al Mahdi (Photo: ICC-CPI/Flickr)