The trial of Ahmad al Faqi al Mahdi has exposed tensions over the kinds of perpetrators that the International Criminal Court (ICC) is expected to target. Al Mahdi, a member of Ansar Dine has pleaded guilty to the war crime of destroying religious sites in Timbuktu, during the 2012 civil war in Mali. But was he the type of perpetrator that the ICC should have been going after in the first place?
Just days after al Mahdi was surrendered to the ICC, he was derided as a “small fish”, unfit for prosecution at the ICC because he wasn’t a sufficiently senior-level perpetrator. Fatouma Harber, a teacher in Timbuktu, wrote that al Mahdi “is just a little fish. But in Mali it is the little fish who are caught.” Mixed in with criticisms that al Mahdi didn’t warrant attention from the ICC, there have also been those who claim that he is, in fact, a senior perpetrator — but of sexual violence as well as cultural crimes.
Criticism of al Mahdi’s trial at the ICC derives from a phrase regularly invoked by the ICC’s prosecutors, namely that the institution seeks to bring those “most responsible” for international crimes to justice. The ICC’s Office of the Prosecutor explains on its website that “[i]t is responsible for examining situations under the jurisdiction of the Court where genocide, crimes against humanity and war crimes appear to have been committed, and carrying out investigations and prosecutions against the individuals who are allegedly most responsible for those crimes.”
The question is thus whether al Mahdi can be considered the most responsible for the crimes with which he has been charged — the destruction of mausoleums and shrines in Timbuku. In their articulate essay, Eva Vogelvang and Sylvain Clerc recently argued that al Mahdi isn’t likely to be the most responsible:
“It is questionable whether Al Mahdi is indeed the most responsible for the crimes. He might have been involved in the destruction of the religious buildings, but it is likely that other members of Ansar Eddine and al-Qaeda in the Islamic Maghreb were equally involved in the commission of these crimes. The fact that he was the head of the “Hisbah” does not make him the individual who bears the greatest responsibility for the destruction of religious buildings. Coincidentally, it has been argued that Al Mahdi is on trial because all of the militant leaders of the various extremist militia groups have been killed or otherwise escaped.”
Vogelvang and Clerc conclude that the decision of prosecutors to target al Mahdi “can only be seen as an attempt to expand the jurisdiction of the ICC and an attempt to secure a fast conviction”.
The problem here, and one shared by both critics of the ICC as well as the institution’s prosecutors, is that it hasn’t been made sufficiently clear that the Court can, in certain cases, target low- and mid-level perpetrators when doing so will potentially help to identify and prosecute the most responsible perpetrators. Continue reading