The al-Mahdi case and thematic prosecution
By Mohammad Hadi Zakerhossein
The trial of Ahmad Al-Faqi Al-Mahdi concluded before Trial Chamber VIII at the International Criminal Court (ICC) in The Hague on 24 August. The trial opened on 22 August, when Al-Faqi admitted guilt as to the war crime of the destruction of historical and religious monuments in Timbuktu (Mali) in 2012. The Chamber has announced that the judgment will be rendered on 27 September 2016. The Al-Faqi trial marks the first international trial focusing on attacks on cultural properties and the first ICC case in which the defendant made an admission of guilt.
The Prosecutor’s decision to pursue the Al-Faqi case in the Mali situation faced various challenges. A case, in the Rome Statute’s sense, consists of two elements - namely the person (perpetrator) and the conduct (charges). The choice of both elements of the Al-Faqi case has met with criticism. Some argue that Al-Faqi is the wrong man on trial before the ICC, since he does not fall within the category of perpetrators who are known as ‘big fish’, a category that the Prosecutor of the Court prioritises over other categories of perpetrators as a matter of policy. In addition, as to the selected conduct, namely the destruction of cultural property, some believe that such an exclusive selection was wrong since it ignores other atrocities committed in Mali that are, allegedly, more significant than the destruction of some buildings. In particular, this group of critics refers to sexual crimes, which according to the Prosecutor’s report on the Mali situation, were committed in Mali.
Selectivity is inevitable
However, these critical readings of the Al-Faqi case lack precision and accuracy. Selectivity is inevitable in the Court’s functioning. The Prosecutor of the Court has to select a situation for investigation and a case for prosecution among all situations and cases falling within the jurisdiction of the Court. A lack of sufficient financial and personnel resources forces the Court to make a selection. Taking into account these limitations and restrictions, the drafters of the Rome Statute established a threshold, namely the admissibility requirement, to prevent imposing a burden on the Court that exceeds its abilities and capacities. In addition to material restrictions that warrant selectivity, the complementarity principle ensures that the Court functions in a selective manner. It means that the Court is not able to prosecute all cases, but it is also not intended to do so, since it is first and foremost the responsibility of states to prosecute international crimes. Therefore, the Court is not designed to deal with all cases and situations occurring across the world. On the contrary, it addresses a handful of cases falling within its jurisdiction in furtherance of its objectives. Such an important feature of the Court requires managing expectations.
To make a selection, the gravity test, as an element of the admissibility threshold, guides the Prosecutor. It deserves to be noted that the case selection is not only about making choices but also establishing priorities. Indeed, the gravity should be given consideration at two stages and levels. Firstly, a case in itself should be sufficiently grave. It is a degree of gravity that is explicitly required by the Rome Statute, Article 17 (1) (d). For this reason, this kind of gravity could be called ‘legal gravity’. However, it is not the end of story. Because the threshold of legal gravity is too low, it does not prevent the Court from being overburdened. Therefore, the Prosecutor has to select not only grave cases but the gravest cases. Such a selection is indeed a sort of prioritisation that requires comparing the available potential cases within a situation.
Prosecutor's wide discretionary authority
The case selection is wide discretionary authority that the Prosecutor enjoys. It is because the gravity test and its elements and criteria are not defined and determined by the Rome Statute. Because it is not specified in the Rome Statute, the Prosecutor has interpreted the gravity test in order to fulfil her obligation to prosecute a case when it is admissible. The Prosecutor has offered four factors to determine if a case or situation is sufficiently grave to activate an investigation or prosecution. These factors are: scale, nature, manner and impact of the crimes.
The nature of crimes as a guiding factor to determine the gravity of a case, potential or real, is based on a doctrine, known as ‘thematic prosecution’. Thematic prosecution orients cases based on the criminal themes. In other words, a case is selected on the strength of the charge(s) it includes. Thematic prosecution is in itself based on the theory of expressivism. Expressivism, as a criminal theory that is consistent with the ICC’s functioning, determines the main aim of the Court’s intervention as norm-setting and norm projection. Based on this mandate, thematic prosecution guides the Prosecutor to prioritise a specific criminal theme and a specific category of crimes in order to promote the prosecution of those crimes. Such prioritisation is justifiable because those themes are generally under-prosecuted and do not trigger the judicial initiatives at the national level, in particular in the countries and societies affected by crises. Indeed, these themes of criminality are surrounded by a thick culture of impunity that needs the Court’s intervention to be shattered. There is no prospect of accountability for the commission of these crimes because they are not considered serious domestically and their victims are not heard, and therefore their voices have been silenced. Gender-based crimes and sexual crimes are a perfect example here. These sorts of crimes have been historically tolerated. Even, the international criminal justice system once suffered from being inactive when it came to these crimes. However, the ICC by following the thematic prosecution policy, aims to end impunity for the perpetrators of crimes that are committed under a supportive umbrella of impunity. Thematic prosecution does not mean that other crimes are not serious but that if the Court has to prioritise a category of crimes and victims over others, a voice should be given to those victims who are mainly voiceless, are not even seen and hence remain absent from prosecution at both the international and national level. Such prioritisation should be given based on the Court’s expressive and educative mandates. This mandate is of cardinal importance, in particular in light of the complementarity principle. The Court’s ultimate ambition is to see that justice is delivered at the domestic level. Realising this objective requires the Court to teach the states not to ignore the victims who are generally ignored.
New theme for Prosecutor Fatou Bensouda
The Prosecutor of the Court, on the strength of her statutory discretion, has so far given priority to two criminal themes, namely gender-based crimes and crimes against children, in particular child solders. Crimes against cultural properties are the third theme for the Court’s prosecutor. The Prosecutor’s decision to prosecute the attacks on cultural properties in Timbukto, in Mali, is entirely consistent and compatible with the idea of thematic prosecution and should be understood and read in light of this notion. In the context of conflicts, the objects and buildings barely draw any attention. They are just considered as objects that do not have anything to do with human victims. However, the recent case raised by the Prosecutor has changed the perspective from which cultural properties used to be seen. The Al-Faqi case and the Prosecutor’s approach to it show that cultural properties are not only lifeless buildings but the human beings are linked to them with strong spiritual and emotional bonds. They are the flags of identity, culture and the history of a nation. An attack on cultural properties is indeed an attack against the identity and culture of a nation and society. The destruction of cultural heritage is not only the destruction of dead stones and bricks but it is the elimination of differences in beliefs and identities and, as a result, it is a grave violation of the right to be different. Indeed, the Prosecutor by raising the Al-Faqi case has added a vision to the attacks on the cultural properties and has projected the idea of ‘cultural genocide’. The real victims of the cultural properties are not buildings but are those people who have a close bond with those places. And, when a location is considered as a World Heritage site, the international community as a whole is affected.
Thematic prosecution should include, not exclude
Although the policy of thematic prosecution is acceptable, its implementation needs more reflection. Thematic prosecution can be applied in two distinct manners. It could be done exclusively by not counting other crimes and charges in a case. This approach draws attention in a more effective way. As for sexual crimes, it happened once at the ICTY, regarding the Furundžija case. At the ICC, exclusively thematic prosecution occurred as to the Lubanga case when the accused was charged exclusively charged with deploying child solders. However, exclusive thematic prosecution can be criticised. Thematic prosecution is justifiable but it should not be applied at the cost of other serious crimes. Thematic prosecution should be to include rather to exclude. Thematic prosecution prioritises a theme as the starting point of prosecution, but it adds other charges in furtherance of a case. The Ongwen case is an example here. The Prosecutor of the Court added some charges after the initial warrant of arrest had been issued, a practice that represents a shift in the Prosecutor’s strategy from the so-called ‘focused investigation’ to an ‘open ended and in depth’ one. In addition, the Prosecutor’s approach to the Ongwen case represented the thematic prosecution policy in practice as to gender-based crimes, since a large number of the new counts were sexual crimes. The thematic prosecution in the Al-Faqi case, apparently, was not conducted in this manner. However, there is other way to avoid the side effects of exclusive thematic prosecution. The Prosecutor can prosecute a case based on an exclusive charge and theme, if she deals with other types of victimisation within a situation by prosecuting other themes in other cases in the situation. It could be the case with the Mali situation that requires observers to wait and see whether the prosecution of other cases draws a more comprehensive picture of the atrocities in Mali.
At the end, it should be borne in mind that in the case selection process, the gravity test is not the only factor that plays a role. More effectively, making a selection is based on operational factors. Indeed, practical factors that are outside of the Prosecutor’s control and discretion have the final word. It is imaginable that within a situation, a case is considered the gravest case, due to its scale or widespread and deep impact on the victims and local people, but the operational factors force the Prosecutor to deprioritise such a grave case. In particular, if the Prosecutor is not able to collect relevant and necessary evidence, it is not reasonable that the Prosecutor be encouraged to invest the Court’s time and money on cases that are unlikely to lead to a conviction because of a lack of evidence. However, it does not mean that the victims of such crimes are forgotten by the Prosecutor. Such crimes are selected, but they are not given priority until the necessary evidence is provided. The Al-Faqi case should be understood by taking into account these practical and evidentiary considerations that shape the path of the Prosecutor.
By issuing a policy paper on gender-based crimes, the Prosecutor has already proved her commitment to target sexual crimes. The absence of sexual crimes in the Al-Faqi case should not been considered as a failure or exclusion. The Al-Faqi case represents a new criminal theme that embraces many teachings for national jurisdictions. And that is the most important thing that observers should focus on now.