Balancing Interests in Cultural Crimes

The recent International Criminal Court case Prosecutor v Ahmad Al Faqi Al Mahdi was monumental for several reasons. The subject matter and charges alone were ground breaking. Based on the destruction of significant holy sites in Timbuktu that were also recognized UNESCO World Heritage sites, Al Mahdi was the first case to try an individual for cultural crimes under Article 8(2)(e)(iv) of the Rome Statute. It is also notable since it saw the defendant enter a categorical plea of guilty, causing the trial proceedings to continue largely for the purposes of informing the forthcoming sentencing decision.

On the face of it, Article 8 (2)(e)(iv) of the Rome Statute is flat in terms of dimension: “Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, and of the following acts: (iv) 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.“ And yet, as the pleadings of the Prosecutor and Defence, Legal Representative of Victims, and defendant acknowledge, there were two levels of harm under the statuteharm to the local community and harm to the international community that lost a world heritage site.

In opening statements and throughout the proceedings, the Prosecutor emphasized the duality of losses experienced as a result of Al Mahdi’s actions. On the one hand, the value of the sites was incalculable to the people of Timbuktu due to their religious and cultural relationship to the sites as places of worship, familial identity and past heritage at a deeply seated personal level. In this capacity, the sites constituted a personal and communal bond that was irreparably harmed through the acts of destruction at issue. As Prosecutor Bensouda noted, the crimes committed “are about the destructions of irreplaceable historic monuments and they are about a callous assault on the dignity and identity of entire populations and their religion and historical roots.” (P 13–14, Al Mahdi March 26 2015).

On the other hand, Prosecutor Bensouda argued that the sites were intrinsically valuable to the heritage of all mankind because they represented a link with history that cannot be and is not replicated elsewhere. In this context, the crimes committed went behind harms to the religious and cultural communities and were instead crimes committed at the international level. The connection here was less personaland in many ways less religiousbut still intense and imbued with reverence and emotion. As the Prosecutor explained “[o]ur cultural heritage is not a luxury good . . . [it] is a vital instrument of human development. To protect cultural property is to protect our culture, our history, our identity, and our ways of expressing faith and practising religion for current and future generations.”

At the same time, the Legal Representative of Victims stressed the fundamental connection between the local community and the sites in terms of religion and family obligations. In addition, he stressed the connection between the local community and the sites for generating income from tourists. The Legal Representative of Victims recognized international interest in the sitesespecially through the UNESCO designationhowever the relevance of this was largely in terms of its impact on the local community rather than as a separate society that suffered harm as a result of the sites’ destruction.

Additionally, the Legal Representative of Victims stressed that the local community carried shame from its inability to connect with is ancestors as was the custom and from its inability to protect the sites from harm during its watch over them. This shame was worsened by the international interest in the sites because the perceived inability of the local community to act as a protector of its heritage was projected to a wider audience than simply the community. The shame argument in this sense again focused on the local community and rather than on the harms to the international community as a whole.

In his statement to the court, Al Mahdi himself acknowledged that his actions had caused harm to the local community and to the international community. He went further and admitted remorse for his actions and their impacts to those involved at all levels. Overall, his apologies were largely geared at the local community and emphasized the harms he had caused to it. From his statements, it is apparent that Al Mahdi’s sense of guilt for his actions centers on the ways that he caused suffering to his family and his community, with the international community as a less emphasized aspect of his guilt.

Defence Counsel acknowledged the impact of Al Mahdi’s acts on international heritage and culture but called into question the appropriateness of Al Mahdi being convicted for crimes against culture. Defence Counsel asserted that Al Mahdi’s crimes were less grave on the national and international scale because they did not involve deaths, torture, or other acts of depravity against human beings in their physical form. From this perspective, Defence Counsel’s arguments suggested that local harms would be the most significant and impactful, but that the harms here were of a lesser quality than those involving death and physical abuse to the local population.

Ultimately, all parties agreed to the commission of acts of destruction of culture. What was left unsettled was the weight of harm to culture at the local level versus at the international level and how the balance between these interests might be struck. This leaves open the issue of whose culture and heritage has greater value whether such a determination is appropriate.

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