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International Criminal Court: Possible First War Crimes Trial for Destruction of Religious or Cultural Heritage

(Mar. 14, 2016) On March 1, 2016, the International Criminal Court (ICC), opened a confirmation of charges hearing against Ahmad Al Faqi Al Mahdi. (Press Release, ICC, Confirmation of Charges Hearing in the Case of The Prosecutor v. Ahmad Al Faqi Al Mahdi: Audio-Visual Materials and Photographs (Mar. 1, 2016).) Al Mahdi, as he preferred to be addressed by the Court, was allegedly “an active personality in the context of the occupation of Timbuktu” and an alleged member of the Islamic armed group Ansar Eddine.  (ICC Case Information Sheet: The Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-PIDS-CIS-MAL-01-02/16_Eng (updated Feb. 10, 2016).)

Specifically, Al Mahdi is accused of bearing criminal responsibility “for having committed as an individual, and jointly with other persons, facilitated, or otherwise assisted, in the commission of war crimes by intentionally directing attacks against buildings dedicated to religion and/or historical monuments in Timbuktu between about 30 June 2012 and 10 July 2012.” (The Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15, ICC website (Sept. 30, 2015).)  The attacked sites are nine mausoleums and the Sidi Yahia mosque, which was built around 1400, in Timbuktu, Mali. (Id.; for information on the monuments themselves, see Timbuktu, United Nations Educational, Scientific and Cultural Organization (UNESCO),  (last visited Mar. 8, 2016).) If the case comes to trial, it would reportedly “be the first ever war crimes trial addressing attacks against cultural heritage.”  (Mark Casper, ICC Opens First War Crimes Hearing for Destruction of Religious or Cultural Heritage, PAPER CHASE (Mar. 2, 2016).)

As a press release on the hearing points out, “[t]he confirmation of charges hearing is not a trial” but “a Pre-Trial hearing held to determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged.” Upon confirmation of the charges, “the Pre-Trial Chamber commits the case for trial before a Trial Chamber, which conducts the subsequent phase of the proceedings: the trial.”  (Confirmation of Charges Hearing in the Case of The Prosecutor v. Ahmad Al Faqi Al Mahdi: Audio-Visual Materials and Photographs, supra.)

The Regulations of the ICC prescribe that the Pre-Trial Chamber has 60 days from the end of a confirmation hearing to deliver a decision either confirming or denying that the prosecutor has established reasonable grounds on which to prosecute the accused. (Id.; Regulations of the Court (May 26, 2004), ICC-BD/01-01-04, art. 53, ICC website.) The Chamber also has the option of adjourning the hearing and requesting that the Prosecutor provide additional evidence, conduct further investigations, or amend a charge if the evidence submitted seems to establish that a crime other than the one charged was committed. (Confirmation of Charges Hearing in the Case of The Prosecutor v. Ahmad Al Faqi Al Mahdi: Audio-Visual Materials and Photographs, supra.)  The defense and the prosecution can request authorization from the Pre-Trial Chamber to appeal the decision but cannot directly appeal it.  (Id.)