Q&A: The Al Mahdi case at the ICC

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(Paris, The Hague, Bamako) Ahead of Al Mahdi’s trial, scheduled to open on Monday 22 August 2016 at the International Criminal Court (ICC), FIDH and AMDH presents the case in seven Questions and Answers.

1.Who is Al Mahdi and what is the background of the case?

2. Can the destruction of religious buildings and historic monuments amount to a war crime?

3. What will be the process followed for Al Mahdi’s trial?

4. Will victims of the crimes allegedly committed by Al Mahdi be allowed to participate in his trial?

5.Why is the Al Mahdi case before the ICC?

6. Has Al Mahdi committed other crimes?

7. Are other legal proceedings underway in relation to crimes allegedly committed by Al Mahdi and other members of AQMI and Ansar Eddine?

1. Who is Al Mahdi and what is the background of the case?

Ahmad Al Faqi Al Mahdi, also known by his nom de guerre Abou Tourab, was born in approximately 1975 in Agoune, 100 kilometers west of Timbuktu in Mali. He was a member of the radical Islamic group Ansar Eddine, a Malian armed jihadist group linked to Al Qaeda in the Islamic Maghreb (AQIM). As head of the Islamic Police based in Timbuktu, he was one of the four commanders of Ansar Eddine responsible for the brutal occupation by jihadist armed groups in Timbuktu. Furthermore, until September 2012, he was head of the “Hesbah” (“Manners Brigade”) and was also involved in the work of the Islamic Court of Timbuktu, including implementation of its decisions. [1]

In January 2012, Mali faced a Tuareg armed rebellion in the north of the country. The National Liberation Movement of Azawad (MNLA) quickly launched an offensive, which was opportunely joined by Islamist groups present in the Sahel zone (Ansar Eddine, Al Qaeda in the Islamic Maghreb (AQIM), the Movement for Oneness Jihad in West Africa (MUJAO), and Boko Haram). Hostilities were conducted in flagrant violation of international humanitarian law. The main northern cities fell into the hands of armed groups from early April 2012 until January 2013, at which point French and Malian troops intervened.

Between 30 June 2012 and 10 July 2012 when the facts allegedly giving rise to Al Madhi’s individual criminal responsibility took place, Timbuktu was under the control of AQMI and Ansar Eddine. During this period, Al Mahdi worked closely with the leaders of these two armed groups, at the epicentre of the structures and institutions they had established. It is alleged that he was an active personality in the context of the occupation of Timbuktu.

The Office of the Prosecutor of the ICC has indicated that Al Mahdi is responsible for war crimes committed in Timbuktu, consisting of intentional attacks against ten religious and historic buildings and monuments (nine mausoleums and one mosque). All the attacked buildings and monuments were under UNESCO protection, and most are also listed as world heritage sites. [2]

2. Can the destruction of religious buildings and historic monuments amount to a war crime? ?

Yes. Article 8.2(e)(iv) of the Rome Statute of the International Criminal Court defines war crimes as including “intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives”.

This is the first time these charges have been brought in a case before the ICC.

3. What will be the process followed for Al Mahdi’s trial?

Al Mahdi’s trial will open on 22 August 2016. It will be conducted by Trial Chamber VIII, which is composed of a panel of three judges: Judge Raul C. Pangalangan, Presiding Judge (Philippines), Judge Antoine Kesia-Mbe Mindua (Democratic Republic of Congo), and Judge Bertram Schmitt (Germany).

After reviewing the submissions by the parties, and considering that Al Mahdi intends to plead guilty, the Chamber has estimated that the trial will only last a few days. The judges have expressed their intention to conclude the trial within one week.

Al Mahdi is the first defendant at the ICC who has intended to submit a guilty plea.

4. Will victims of the crimes allegedly committed by Al Mahdi be allowed to participate in his trial?

Participation in trial proceedings is a right guaranteed to victims by the ICC Statute. Their participation, as envisaged under Article 68.3 of the Rome Statute, is a key part of the accountability process and thus constitutes an essential component of justice.

To date, three victims have been granted the ability to participate with the common legal representation of an external lawyer. An additional six applications for participation have been filed.

The Trial Chamber found that each of the victims accepted to date have suffered ’personal and economic moral harm as a result of the events that come within the parameters of the charges confirmed against Mr Al Mahdi […].’ The Chamber stressed that precedent indicates that ’harm’ can include emotional suffering and economic loss in addition to physical harm.

Victim participation is particularly significant in this trial, as victim experiences demonstrate how the destroying cultural property doesn’t merely damage buildings and monuments, but also harms the social, cultural and historic fabric of communities.

5. Why is the Al Mahdi case before the ICC?

Mali ratified the ICC Statute on 16 August 2000. The situation in Mali was referred to the Court by the Government of Mali on 13 July 2012. After conducting a preliminary examination of the situation, on 16 January 2013 the Office of the Prosecutor opened an investigation into alleged crimes committed on Malian territory since January 2012. On 13 February 2013, the Malian government and the ICC signed a cooperation agreement in accordance with Section IX of the Rome Statute.

The warrant of arrest against Ahmad Al Faqi Al Mahdi was issued by ICC’s Pre-Trial Chamber I on 18 September 2015. On 26 September 2015, he was surrendered to the ICC by the authorities of Niger and transferred to the Court’s Detention Centre in the Netherlands.

On 30 September 2015, Al Mahdi appeared before the single Judge of Pre-Trial Chamber I, Judge Cuno Tarfusser, in the presence of the Prosecutor and the Defence. He was represented by his Duty Counsel, Mohamed Aouini. [3]

On 24 March 2016, the charges against Al Mahdi were confirmed by the Pre-Trial Chamber I. He is accused of the war crime constituted by attacks against 9 mausoleums and one mosque [4].

6. Has Al Mahdi committed other crimes?

FIDH, together with its member organisation the Malian Association for Human Rights (AMDH), conducted field missions and investigations in Northern Mali during which the testimonies of numerous victims of jihadist armed groups were collected. On 6 March 2015, FIDH, AMDH and five other human rights organisations in Mali filed a complaint on behalf of 33 victims of crimes committed in Timbuktu before the High Court of the Commune 3 of Bamako. The complaint accuses Al Mahdi and 14 others of war crimes and crimes against humanity, including sexual and gender-based crimes. This filing follows an earlier complaint filed in November 2014 on behalf of 80 victims of rape and sexual violence committed during the occupation of northern Mali.

The 33 victims denounced the atrocities brought about by the Islamist police force and in particular its “Centre for the implementation of the suitable and prohibition of the blameworthy” (Centre d’application du convenable et de l’interdiction du blâmable) of the “Manners’ Brigade” led by Abou Tourab during the early stage of the occupation of Timbuktu. The crimes denounced include torture, arbitrary detentions, rape, sexual slavery and other forms of sexual violence. [5]

In this context, FIDH has already sought to encourage the Office of the Prosecutor to also consider credible allegations of Al Mahdi’s involvement in further international crimes committed against civilians, including rape, sexual slavery and forced marriage.

7. Are other legal proceedings underway in relation to crimes allegedly committed by Al Mahdi and other members of AQMI and Ansar Eddine?

Beyond the 120 anti-terrorist investigations which led to practically no criminal trials, the Malian judicial authorities are only investigating two cases concerning crimes against humanity and other grave human rights violations committed in northern Mali since 2012. These two cases, initiated by FIDH and AMDH together with five other Malian human rights organisations in the name of 123 victims, are stagnating and no substantive progress has been seen. The suspects – despite being located – have been freed as a result of lack of willingness and resources on the part of the authorities. Numerous suspects identified in the complaint filed by our organisations in March 2015 have been freed, are abroad or are otherwise not at all concerned by it. This is principally the result of the application of “trust measures” linked to the Peace and Reconciliation Agreement signed in Bamako on 20 June 2015, to requests for prisoner and hostage exchanges and to a lack of solid evidence against those arrested during military operations. [6]

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