Guilt and Punishment for Cultural Crimes

As discussed in a previous IntLawGrrls post, the International Criminal Court recently heard the Prosecutor v. Ahmad Al Faqi Al Mahdi case. Al Mahdi was notable in that it was the first case where the defendant agreed to plead guilty to the charges brought against him. Thus, the issue reviewed by the Court related not to his guilt per se but rather to the assessment of his guilt in the context of the charges brought against him and the aggravating and mitigating circumstances that might apply.

Beyond this, however, the Al Mahdi case was of great importance because it was the first decision in which the Court was required to render a decision in relationship to cultural crimes committed under Article 8 (2)(e)(iv) of the Rome Statute (“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.”). In so doing, the Court was required to determine the weight of cultural crimes in the international and local contexts.

In determining the importance of cultural property related crimes, the Court provided a short history of cultural property protections as a matter of modern law to establish a framework for analysis. While determining guilt under Article 8(2)(e)(iv), the Court used both international and local/religious cultural standards as benchmarks for the mosques and other religious sites that were attacked by Al Mahdi and under his supervision. In terms of international cultural importance and standards, the Court placed heavy emphasis on these sites being designated as UNESCO World Heritage sites because “designation of these buildings reflects their special importance to international cultural heritage, . . . [a]ttacking these mausoleums and mosques was clearly an affront to these values.”(Al Mahdi 27 September 2016 para 46).

The concept of valuing cultural property played a significant role in the Court’s decision on the appropriate sentence for Al Mahdi’s crimes. Overall, the Court reiterated the three considerations that underlie sentencing decisions at the ICC level—retribution, deterrence, and culpability. As a necessary corollary to this, the Court found it necessary to explain the gravity of the crime committed by the defendant. In this case, the Court emphasized that its jurisdiction is over “the most serious crimes of concern to the international community as a whole, and that, as a consequence, the sentences should reflect that seriousness.” (Ibid. para 72). Further, the Court explained that not all crimes rising to this level of seriousness are the same and that it “has the duty to weigh each by distinguishing, for example, between those [crimes] against persons and those targeting property.”(Ibid.).

With this in mind, the Court established that “even if inherently grave, crimes against property are generally of lesser gravity than crimes against persons.”(Ibid. para 77). However, against this the Court balanced the damages caused to local and regional religion, as well as culture, in the course of Al Mahdi’s acts of destruction. Implicit in this is a value base that places religion and the impacts of property damage on religion on a higher plane of gravity than cultural property and damage to it. This particularly appears to be the case where the acts of destruction to religious sites are carried out directly in front of the people who worshipped at the targeted sites.

In the end, the Court determined that the nature of the harms suffered as a result of Al Mahdi’s crimes merited a sentence of nine years in prison, including time already served. Al Mahdi is an important case from the standpoint of establishing how the ICC handles cases in which the defendant readily admits guilt. However, arguably the most important aspect of Al Mahdi is the way in which the Court handled issues of cultural property destruction, seeming to create a hierarchy of gravity in terms of crimes involving religious sites versus crimes involving strictly cultural sites. At the same time, the Al Mahdi judgment recognized the importance of international and national attachments to cultural property and the harms that can be suffered by each community when cultural property related crimes occur.

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