By Benjamin Dürr*
The prosecutor wants to put the alleged Islamist Ahmad al Mahdi on trial for war crimes committed in Mali. After Tuesday’s confirmation of charges hearing, judges at the International Criminal Court (ICC) have to decide whether they pursue the case. What are the challenges?
The countdown began Wednesday: the judges at the ICC have 60 days to decide how to proceed with the first Mali case. At the confirmation of charges hearing Tuesday, the prosecutors said Ahmad al Mahdi should be put on trial for the destruction of nine mausoleums and a mosque in the city of Timbuktu. They accuse him of the war crime of destruction of cultural heritage
Al-Mahdi was dressed in a snow-white dashiki, a West African garment with an embroidered neck and breast. When he addressed the judges to confirm he understood the charges, he rose with self-confidence and spoke Tamashek, the language of the Tuareg in northern Mali.
In a brief address and with a remarkable argument, al Mahdi’s defence lawyers denied the accusations. Jean-Louis Gilissen, a member of al Mahdi’s defence team, explained the militants did not destroy Timbuktu’s mosques or tombs but only their covering.
However, the lawyers decided to not give a full-fledged defence presentation but to make their submissions at a later stage.
Judges now will make a decision by the beginning of May as to whether the proceedings continue. They can decide to confirm the charges and commit al-Mahdi to trial; they can dismiss the case; or they can ask the prosecution to carry out additional investigations.
It is the first time the ICC is dealing with the cultural crimes and the first case where no individual victims are involved. Various issues are challenging in this case:
The gravity of the crime and the scope of the allegations
According to the prosecution, the destruction of the buildings was grave enough to warrant an ICC trial. “What is at stake is not just walls and stones,” Chief Prosecutor Fatou Bensouda said Tuesday
. Instead, such attacks are assaults on the roots of a population and its identity.
Human rights activists from Mali, however, urged the prosecutors to include other crimes. Al Mahdi is allegedly also responsible for sexual violence crimes, among them rape and sexual slavery. “Those victims feel abandoned since they don’t have access to justice neither in Mali nor at the ICC,” said Bintou Founé Samaké, president of the Malian NGO Women in Law and Development (WILDAF), Tuesday in The Hague.
The rank of the accused
Among those who are allegedly responsible for the crimes committed in Timbuktu, al Mahdi is “one of the few who is still alive”, Bensouda said. The leaders of Al-Qaeda in the Islamic Maghreb (AQIM) and Ansar Dine, which al Mahdi was a member of, are reportedly either dead or on the run. Though, some have questioned
whether al Mahdi is really such a big fish.
The nexus between the conflict and the crime
The central legal element in this case is the existence of a nexus between the conflict and the crime. In order to be considered a war crime, the destruction of cultural heritage must be linked to an armed conflict. The prosecution argues that al Mahdi was able to destroy the buildings only because such a conflict existed. At the time the crimes took place, says the prosecution Timbuktu was under the control of Ansar Dine and AQIM. Without the city’s occupation, the crimes would not have been occurred.
Lead image: Damaged tomb in Timbuktu, Mali (Photo: AP Photo/Baba Ahmed)
Benjamin Dürr is a legal analyst in The Hague with a focus on the ICC and Africa