September 30, 2016

Alumni Perspective: “The Significance of the al-Mahdi Case and the War Crime of Destruction of Cultural Heritage”

Posted by Cara Solomon

Great work here by Danae Paterson, JD ’16, who co-authored this piece on a historic prosecution that goes right to the heart of cultural identity. The International Criminal Court has since sentenced Ahmad al-Faqi al-Mahdi, a member of a jihadist group, to nine years in prison for his role in demolishing historic Muslim shrines in Timbuktu, Mali.

The piece, which Danae co-authored with Dr. Paul Williams, co-founder of the Public International Law & Policy Group, was originally published on The Huffington Post under the headline: “Tear it all down: The significance of the al-Mahdi case and the war crime of destruction of cultural heritage.” Danae is currently working as a Law Fellow with Public International Law & Policy Group’s Syria negotiations team.

 

“The best way to tear someone down is to tear down their culture, tear down everything that is important to them” – Witness MLI-OTP-P-0431 for the Prosecution,Prosecutor v. Ahmad al-Faqi al-Mahdi



In 2012, at least ten revered religious monuments were destroyed in Timbuktu, Mali. The violation of these sacrosanct markers of culture and collective identity by al-Qaeda-backed extremists, dealt a painful and shocking injury to Mali’s Muslim community. For nearly everyone in the community, these UNESCO-designated mausoleums physically embodied Timbuktu’s historic identity as a prominent center of Islamic learning in the 15th and 16th centuries.

Tomorrow, the International Criminal Court (the Court), based in The Hague, will take a historic step towards justice for the war crime of the destruction of cultural heritage. There is some hope this decision will further healing and reconciliation in Mali, and chill the violence being committed against cultural heritage in so many other conflicts throughout the world today.

“[The monuments were the] embodiment of Malian history captured in tangible form from an era long gone” – Fatou Bensouda, Chief Prosecutor at the International Criminal Court

In 2012, Ansar Dine, which is closely tied to Al Qaeda in the Islamic Maghreb (AQIM), overran Timbuktu, Mali. Timbuktu, also known as the “City of the 333 Saints,” is home to 16 mausoleums, thousands of sacred documents, and three ancient mosques (Djingraber, Sidi Yahia and Sankoré). Designated as a UNESCO world heritage site, Timbuktu is revered globally as a rich site of Islamic scholarship and antiquity. This powerful religious history is an integral part of the city’s identity.

After Ansar Dine seized control of Timbuktu, Ahmad al-Faqi al-Mahdi – serving as the leader of the hesbah (morality brigade) – led a campaign to destroy nine of the sacred mausoleums, and a symbolically-powerful mosque door located within the city. The demolished mausoleums contained the human remains of highly revered Islamic intellectuals, of such importance in their contribution to Islam and scholarship that they are considered to have achieved something akin to sainthood. The mosque door, which was violently split from its frame, was meant to stay closed until the final days of the world.

On September 18, 2015, the Court charged al-Mahdi with the war crime of destruction of cultural heritage for these actions. And in a landmark moment for the Court, and for international criminal law, al-Mahdi pled guilty. On September 27, 2016, the International Criminal Court will announce the judgment and sentence in the case of Prosecutor v. Ahmad al-Faqi al-Mahdi. Under the statute of the Court, al-Mahdi could face up to 30 years of imprisonment, but because of his guilty plea, the Prosecutor is seeking a muted sentence of 9 to 11 years.

Despite this guilty plea, the sentencing tomorrow is no mere procedural check-mark. Rather, this moment represents a milestone for the Court, and indeed for the field of international criminal law. For the first time in the history of the Court, an individual has been charged with the destruction of cultural heritage as a standalone war crime. Earlier international war crimes tribunals have charged individuals with the criminal destruction of cultural heritage, but only as an accompanying crime to more recognized offences such as murder and torture.

Typically the International Criminal Court seeks to bring justice to those who have suffered from crimes against humanity, genocide, and violations of the law of war. In light of this formidable and narrow mandate, one may legitimately question why the Court has chosen to allocate precious (and scarce) resources to al-Mahdi’s prosecution for the destruction of cultural heritage. Does the demolition of less than a dozen tombs and an ancient door, truly rise to a war crime that should be prosecuted by the Court?

We believe the answer is yes.

“No one who destroys that which embodies the very soul and the roots of a people through such crimes should be allowed to escape justice.” – Fatou Bensouda, Chief Prosecutor at the International Criminal Court, in an interview with AFP

There is unfortunately a long tradition of the destruction of cultural heritage during times of conflict. Cultural heritage in this context includes national libraries, gravesites, tombs, churches, mosques, synagogues, and more. These revered entities often represent a core aspect of a group’s identity—religious, ethnic, national, or otherwise.

This practice extends as far back as 492 BC, where in the course of the first Persian invasion of Greece, Athens was razed and many of its temples and shrines were plundered and burned.

During World War II the Nazi regime was notorious for destroying or looting vast amounts of cultural heritage. The looting and destruction was so vast that the United States launched a special unit of the armed forces (referred to as the Monuments Men) to seek to prevent further destruction to cultural property, and to recover what they could as Nazi forces retreated from occupied Western Europe.

During the Yugoslav wars in the early 1990s, the Serbian regime-sponsored forces deliberately targeted mosques and churches during their mission to ethnically cleanse Bosnia of the Bosniak and Croat populations. This has been viewed by many as a calculated attempt to remove the memory, and indeed identity, of these targeted demographics. A particularly disturbing example is seen in the case of the city of Zvornik, Bosnia. Following the destruction of the city’s mosques, the mayor frequently informed visitors that “there were never any mosques in Zvornik.” This presents an especially harrowing illustration of how very damaging this war crime can be to a group’s identity – and the frightening potential impact of its weaponization by actors intending to extinguish particular groups in the course of an armed conflict.

More recently, the Taliban and Islamic State of Iraq and the Levant, as well as other al-Qaeda affiliated groups, have instilled the destruction of cultural heritage as a core tenant of their approach to conquering and destroying groups to which they are opposed.

In Afghanistan, the Taliban sought to erase the cultural identity of Buddhism by destroying the Bamiyan Buddhas. These statues were two of the world’s largest Buddhas, and stood in Afghanistan for more than 1,700 years before the Taliban destroyed them with the use of tanks, anti-aircraft fire and dynamite.

In Syria and Iraq the Islamic State has sought to annihilate or loot irreplaceable cultural heritage on a truly massive scale. Key instances include the wholesale destruction of sculptures and artifacts in the Mosul Museum in Iraq, as well as their devastation and looting in the world heritage site of Palmyra in Syria. According to one advisor to the US State Department, this is “the gravest cultural emergency” of our contemporary era. Indeed, as a result of these actions, the World Monuments fund has listed Iraq, as a nation, as an “endangered site.” What the Islamic State doesn’t destroy, they loot. Estimates are that the Islamic State has raised anywhere from $200 million to $8 billion in revenue from the sale of looted cultural heritage. This destruction and looting of cultural heritage is so great that the United States Army is currently contemplating the resurrection of its Monuments Men unit.

Why do some parties to conflict aggressively destroy cultural heritage? One answer is that they may loot cultural heritage to fund continued engagement in a conflict and/or terrorism. Another, potentially co-existing, answer is that they may seek to destroy cultural heritage in order to comprehensively defeat and destroy the opposing party in the conflict – for now and future generations.

The destruction of cultural heritage is intrinsically woven into the methodology used by some parties to conflict to extinguish the members of an opposing group, as well as that group’s shared identity: cultural heritage speaks to the common roots of a group, and frequently enshrines core aspects of that identity.

This methodology of destruction often begins with an effort to destroy the current generation of the opposing group through the killing and torture of combatants and civilians, and the destruction of homes, factories, food stocks and livestock. Perpetrators may then seek to destroy or otherwise seriously damage the next generation, such as through the crime of mass rape. And, finally, perpetrators may also utilize the destruction of cultural heritage as a means to simultaneously impede the ability of future generations to coalesce around a shared identity and to, literally, erase earlier generations.

The destruction of cultural heritage is (often intentionally) formidably symbolic. And in some ways, such damage is among the most irreversibly permanent losses that can occur to civilian objects. While the damaging of homes, schools, and other infrastructure is undeniably devastating and critically important, unlike these entities, cultural heritage cannot be rebuilt – it can only, at best, be copied.

The destruction of cultural heritage also fits into the practice of undermining moderate elements of opposing groups, and dissolving potential foundations for post conflict reconciliation. The destruction of cultural heritage is a powerful loss, and its destruction introduces unique challenges to post-conflict healing, which can potentially weaken a community’s larger efforts for recovery. Even new copies of destroyed property can present a consistent reminder of the unrecoverable losses suffered in the course of the conflict, feeding anger and in some cases increasing the temptation of retribution. Without justice for such devastation, a city or a nation will struggle to heal. Prosecuting the destruction of cultural heritage as a war crime may represent a critical contribution towards restoring the dignity of a population that has been harmed in painfully symbolic ways.

Fortunately, for some time now, the field of international criminal law has expanded its protections for cultural heritage during time of conflict.

In the aftermath of World War II, multiple Nazis were charged at the Nuremberg trials with destroying objects of cultural importance. The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict established treaty law protections for cultural heritage, which, among other things, forbids state parties from undertaking any acts of hostility directed against cultural property. Then came the Additional Protocol II to the Geneva Conventions in 1977, which prohibited military actors from operating on heritage sites while engaged in an armed conflict (except in cases of military necessity); Article 53 in particular reiterates the obligation to protect “cultural objects” and “places of worship.”

In the 1990’s, the International Tribunal for the Former Yugoslavia pursued cases against individuals in Tadic, Kordic & Cerkez, Jokic, and Krstic due to their participation in the destruction of cultural objects as part of the Serbian regime’s campaign of war crimes and genocide in Bosnia. To continue and build upon this practice, the statute that established the International Criminal Court defines as a war crime “intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, [and] historic monuments. . .” in the absence of military necessity.

Ultimately, prosecuting al-Mahdi’s crimes at the International Criminal Court sends a significant message to the people of Timbuktu: this culture and this history are important, and are valued by the international community. It is hoped this will help to address the impact of Ansar Dine’s attack on the identity and cultural legacy of the significant Muslim population in Mali.

Seeking accountability for crimes of this nature also sends a strong signal to Ansar Dine, AQIM, the Islamic State, and other similar groups that may use the destruction of cultural heritage as a means of targeting a specific population: such conduct will not be tolerated. Prior to the al-Mahdi case, there was little remedy for those whose cultural heritage was destroyed, even if such destruction inspired widespread condemnation. To be sure, the Court’s ability to prosecute these crimes is not a ready cure-all for other instances of cultural destruction and is limited by its jurisdiction, which may constrain its ability to act in Syria or Afghanistan. However, if and when it does become possible for the Court to hold accountable various perpetrators of cultural destruction in additional contexts, the al-Mahdi precedent may serve to spur more effort in prosecuting this type of crime.

“I regret what I have caused to my family, my community in Timbuktu, what I have caused to my home nation Mali. . . I would like to seek the pardon of all the whole people of Timbuktu” – Ahmad al-Faqi al-Mahdi

The sites that al-Mahdi is accused of destroying were, in many ways, central to the integral identity of Timbuktu. These irreversibly lost pieces of Malian heritage were central points of unity and collective identity in the city; the population of Timbuktu regularly rallied together around the conservation and careful care of these mausoleums. The fact that al-Mahdi has expressed public remorse for his crimes in the course of his trial at the International Criminal Court will perhaps facilitate post-conflict reconciliation in Mali, by acknowledging that conflict-impacted communities were legitimately harmed by these intentional cultural injuries, in addition to the terrible physical violence exerted upon its population. Indeed, this is one of the explicit goals of the Chief Prosecutor (Fatou Bensouda) in pursuing this case – she believes that a trial for these specific crimes may be “crucial” to support reconciliation by introducing what she has called “truth and catharsis.”

The international community will now watch closely as the sentencing decision for al-Mahdi is released tomorrow. This pivotal moment in the legacy of the Court may powerfully illuminate the importance of seeking accountability, recognition, and, ultimately, justice, for all war crimes.

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