Some Thoughts on the al Mahdi Trial and Guilty Plea

For all interested readers, below are some thoughts that I shared in an interview with the University of Toronto News on the trial and guilty plea of Ahmad al Mahdi. JiC will have more analysis on this groundbreaking trial in the coming days.

Ahmad al Mahdi during trial proceedings at the International Criminal Court (Photo: ICC Flickr)

Ahmad al Mahdi during trial proceedings at the International Criminal Court (Photo: ICC Flickr)

What specifically about this case is unprecedented?

While the destruction of cultural sites has been prosecuted before, the al-Mahdi trial marks a number of ‘firsts’ for international justice and the International Criminal Court (ICC) in particular. It’s the first time that anyone has been prosecuted for destroying cultural sites as a war crime at the ICC. Al-Mahdi, who has accepted responsibility for demolishing shrines and mausoleums in Timbuktu, is also the first-ever Islamic radical and the first citizen of Mali to be put on trial at an international criminal tribunal. For the ICC, it is the first time that anyone charged by the Court has pleaded guilty.

Why has the ICC chosen to proceed with al-Mahdis trial proceed despite his guilty plea?

Neither al-Madi’s defence nor the prosecution can avoid the official procedures of the court  — nor should they. There may be questions that judges would like clarified by al-Mahdi’s defence team, the prosecution, and the accused himself. This is in the international public’s interest. If there were no trial hearings, al-Mahdi would not have been able to so publicly announce his regret for the crimes he committed nor implore other Muslims to avoid following his destructive path. Moreover, the prosecution and defence team struck a plea agreement which stipulates that if ICC judges give al-Mahdi a sentence of somewhere between 9 and 11 years, no party to the proceedings will appeal. The court’s judges are not bound by that agreement, even if they have an interest in following it in line with their commitment to efficient proceedings. Judges will want to probe other aspects of the trial and the plea agreement. And victims and survivors in Mali have the right to see al-Mahdi face questions over his motivations, his remorse, and the likelihood of him re-committing crimes in the future. Nevertheless, the trial should move very swiftly and will undoubtedly be the shortest trial at the ICC to date.

What is the significance of the ICC prosecuting war crimes that target the destruction of culturally important sites?

There has been widespread international condemnation of the destruction of cultural sites. Yet, before this week, there was very little legal recourse to prosecute those who perpetrate such cultural crimes. The acts of wanton vandalism and destruction by ISIS fighters in Palmyra and the obliteration of Bimayan Buddhas by the Taliban stand out as just two recent examples that have spurred international outrage at the loss of cultural antiquities. The ICC wanted to tap into that unified sense of anger and has sought to present itself as a relevant actor in holding perpetrators of cultural crimes to account. Because of its limited jurisdiction, it couldn’t achieve either of those aims in Syria or Afghanistan. But it could in Mali. Together with UNESCO, I think the ICC is positioning itself as the frontline of protecting cultural sites in time of war and violent political conflict. Whether they can successfully do so remains to be seen, but al-Mahdi’s trial is undoubtedly a momentous event in that mission.

Will this case have implications for legal charges against those that have destroyed cultural sites elsewhere like Syria and Iraq?

It could. Every time there is a trial on a specific charge, precedents are established and clarified. Still, I don’t think that ISIS fighters in Syria and Iraq will all of a sudden drop their grenades and crowbars because al-Mahdi was caught and prosecuted at the ICC. That’s just not how deterrence works — even if some people wish it would. We need to avoid raising the expectations of what international justice, from the ICC or any institution, can achieve. Nevertheless, when accountability for the panoply of atrocities in Syria and Iraq finally becomes possible, I think we are more likely to see energy and focus paid to cultural crimes because of the attention that al-Mahdi’s trial is receiving now.

Do you think this case will have an effect on the reputation of the ICC and its efficacy? Is this a step in the right direction?

For numerous reasons, this is a big win for the ICC. Al-Mahdi’s will be a short and efficient trial, which is important for a court that has been hobbled by inexcusably long proceedings. Given its woefully low budget, concluding a trial without expending too many resources is also important. Al-Mahdi’s surrender to the ICC was accomplished with the cooperation of both Niger and Mali, a fact that helps the Court counter the accusations that it is biased against Africa and that African states are ‘against’ the institution. Even before he was surrendered to the ICC, al-Mahdi was apparently cooperating with ICC investigators and prosecutors. That means he could help in bringing other perpetrators in Mali to account. This is why the criticism of skeptics who say the ICC should be focusing on the destruction of human lives and not bricks-and-mortar is short-sighted. If al-Mahdi provides solid testimony and evidence of other crimes, he could emerge as an extremely useful resource not only for the ICC but for accountability in Mali more generally. Finally, I think the ICC tapping into the sense of outrage at the destruction of cultural heritage sites serves the court’s interest of being a relevant institution and being seen as an institution that prosecutes crimes that ‘shock’ the conscience of humanity. In short, while the implications and impact of the al-Mahdi trial remain to be seen, I think this is a significant victory for a young, and still fledgling, court.


About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Ahmad Al Mahdi Al Faqi (Abou Tourab), Cultural Crimes, International Criminal Court (ICC), International Criminal Justice, Mali, War crimes and tagged . Bookmark the permalink.

6 Responses to Some Thoughts on the al Mahdi Trial and Guilty Plea

  1. Pingback: Some Thoughts on the al Mahdi Trial and Guilty Plea — Justice in Conflict – The Burst Signal.

  2. Abdelghany says:

    Re your answer to the last question: I have a random thought. No stance here, it’s just a thought.

    Yes, everything you said makes sense. However, for those skeptical people (who know nothing about case gravity, situational gravity, constraints of ICC’s jurisdiction, etc…), it’s pathetic to prosecute a crime that (compared to gravity of other crimes in the world) does not rank “grave” at all. I mean, what’s been committed by Al-Mahdi in Mali, compared to many many other situations, is not *important* (to ordinary people, not jurists and politicians sitting in The Hague, Geneva or NYC) whatsoever.

    Especially for people living in third-world countries as well as areas undergoing mass atrocities, nothing is more important than life, and protection to “sites” and “rocks” seems luxurious. For Syrians, for example, yes what happened in Palmyra was horrible, but none cares, when Aleppo or Dar’a is on the news.

    The real problem of the Court, as well as of jurists, is that it/they get imprisoned inside their legal calculations and requirements (which are important for sure), and often come up with conclusions that are detached from reality. The fact now is that the world knows what happened/happens in Iraq, Palestine, Syria, Colombia, Ukraine, etc… and then they see someone who’s destroyed a couple of buildings (that seem old, but they have no idea what they are) before the Court, pleading guilty, and everyone is celebrating (far in the northern part of the world)… while the others are free, happy and not even subject to any foreseeable threat of prosecution.

    Those people wouldn’t relate to what’s going on, and the whole thing should sound quite absurd, no?

  3. el roam says:

    Abdelghany ,

    With all due respect , the author of the post , has insisted , and justifiably , that since the resources needed for that prosecution of Al Mahdi , weren’t at all significant relatively , there is a great benefit in that prosecution , Let alone , while we deal with an independent offence , prescribed clearly in the Rome statute .

    However , you should not forget :

    Life is as stated by you , very important merit , yet , not the ultimate one !! During all history of mankind, people all around, preferred dying, or without blinking sacrificed their lives, for the sake of religions of all kinds . And since , religion has strongly to do with monuments , and holy sites , it doesn’t fall short of life itself . that is the very nature of humans or humanity generally speaking .

    Those ISIS , you have mentioned , ironically , would and do , sacrifice their lives , without blinking , for a religious cause finally .

    Life yes !! not in every price !! not absolute cause !! no one would endure endlessly cruel tortures for example , but staying alive .


  4. Pingback: EJIL: Talk! – The Al Mahdi Judgment and Sentence at the ICC: A Source of Cautious Optimism for International Criminal Justice

  5. Pingback: O caso Al Mahdi e a responsabilidade internacional por crimes contra o patrimônio cultural - IDEA

  6. Pingback: Ahmed al Faqi al Mahdi’s trial or slow change of plea hearing at the ICC? – alan

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