In the first case to prosecute crimes against culture as war crimes, the Trial Chamber of the International Criminal Court (ICC) found Mr Al Mahdi — a member of Ansar Dine — guilty of the war crime of intentionally directing attacks against religious and historic buildings in Timbuktu in 2012. This case represents the recognition and protection of human rights, which are embedded in cultural, religious and spiritual identity.
The Chamber found it necessary to distinguish between crimes committed against persons and those targeting property. It recognized that an attack on human life is necessarily of greater gravity than damage to property, and that sentencing must reflect this reality. Nonetheless, the Court clearly demonstrated its willingness to recognize the innate significance of culture and heritage to populations, which shows a remarkable step forward in the development of international law.
However, in committing time and resources prosecuting this ‘lesser’ crime, the ICC has been criticized for stretching the Rome Statute’s principle of gravity too far. An obvious counter-argument is that crimes against cultural heritage was always contemplated as a crime of significance attracting the ICC’s jurisdiction, as it is enshrined under war crimes in Article 8(b)(ix). A new crime has not been established in this case; rather, the Court has expanded the focus of crimes within its realm and brought international law in line with contemporary attitudes and understandings of the significance of culture.
Whilst the Court’s priorities and jurisdictional scope are valid concerns (especially considering that murder, rape and torture has been carried out in the region), it must be remembered that an assault on cultural identity and heritage can have as devastating an impact on an individual as physical violence, and deserves recognition as such. One witness testified that the entire international community is suffering as a result of the destruction of significant sites since “heritage is a part of cultural life”. Another witness described the attack on Timbuktu’s religious buildings as “a war activity aimed at breaking the soul of the people of Timbuktu”. As reiterated by ICC Prosecutor Fatou Bensouda, it is no longer appropriate to ignore or dismiss the impact that an attack on cultural heritage has on the “identity, the memory and the future of entire populations”.
A unique feature of this case is the admission of guilt given voluntarily by Mr Al Mahdi. The actions that qualify as war crimes under the Rome Statute are arguably so significant and harmful that an accused should never have the opportunity to have their sentence reduced merely for admitting guilt. The Rome Statute appropriately ensures that Mr Al Mahdi is not held to a lower standard of justice for his admission. The Trial Chamber analyzed Article 65, which governs admissions of guilt, and emphasized that an admission of guilt in no way opens an avenue to plea bargaining, although it is a mitigating factor in sentencing. The fact that his admission of guilt was made “against a backdrop of overwhelming evidence pointing to his guilt”, was weighed against the benefits of saving the Court’s time and resources, and relieving witnesses of the burden of testifying.
The Trial Chamber sentenced Mr Al Mahdi to nine years imprisonment, reiterating that retribution and deterrence are the ICC’s primary objectives of punishment. Whilst the finding that an attack on cultural heritage is punishable as a war crime sends a strong signal to those around the world engaging in similar acts, the deterrent effect of this case is limited in a significant manner. The ICC’s jurisdiction is limited to acts committed by a State Party that has accepted the jurisdiction of the Court, or upon referral by the United Nations Security Council. Therefore, non-state actors such as Islamic State and the Taliban (whose countries have not accepted the jurisdiction of the ICC) cannot be brought to account for their acts of irreversible cultural destruction in areas such as Syria.
These shortcomings do not detract from the significance of this case in extending and upholding international protection for the common cultural heritage of mankind. Rather, they set the benchmark for the progress yet to be made and the challenges yet to be overcome, especially in addressing modern day terrorism and upholding human rights in complex, volatile environments.