Prosecuting the Destruction of Shrines at the ICC – A Clash of Civilisations?

By Mark Kersten

The potential trial of Ahmed Al Faqi Al Mahdi marks a series of firsts for global justice. Al Mahdi, who faced confirmation of charges at the International Criminal Court (ICC) this week, is the first individual from Mali to face the prospect of prosecution at the ICC. More pertinently, he is the first Islamic extremist to face charges at the Court and the first individual to be prosecuted at the ICC for the destruction of cultural sites as a war crime. ICC prosecutors insist that al Mahdi, a rebel leader in northern Mali and a member of Ansar Dine, is responsible for the destruction of religious shrines and mausoleums in Timbuktu in 2012. So how will the self-professed teacher and scholar defend himself against the charges and what could this trial mean for the global fight against extremism and terrorism?

Notably and somewhat unusually, al Mahdi and the team of lawyers defending him have decided not to present details of their defence. According to Tom Maliti, this suggests al Mahdi’s counsel believe that the charges against him will be confirmed and are simply waiting for the trial to begin.

Good vs. evil

While some ICC insiders believed al Mahdi was a prime candidate for a guilty plea when he first came into the Court’s custody, that certainly doesn’t appear to be the case. It also appears that he will respect the authority of the Court. But his team appears poised to eschew any direct defence of their client. Al Mahdi’s counsel are likely cognizant of the fact that it would be virtually pointless, given the prosecution’s evidence, to argue that al Mahdi was not involved in the destruction of mausoleums and historic sites in Timbuktu. Moreover, it seems entirely possible that al Mahdi revels in his role in destroying shrines in northern Mali. This is, as his lawyers implied, part of his religious philosophy. Indeed, rather than dealing with the specific allegations, al Mahdi’s defence counsel seem more inclined to pit his radical, Islamic worldview against that which underpins the ICC. As Geoffrey York put it:

“[al Mahdi’s] defence lawyers are seeking to turn the trial into a battle over ‘the definition of the divine’.

“The landmark case in The Hague, focused on the destruction of ancient shrines in Timbuktu, is emerging as a clash between two world views, part of a broader global struggle over the meaning of Islam. While prosecutors portray the cultural destruction as an attempt to annihilate a civilisation, the defence sees it instead as simply a different “vision” of “good over evil.”

Political project

While his lawyers did argue that only the “covers”, and not the tombs, of shrines in Timbuktu had been destroyed, it is evident that al Mahdi’s defence is primarily concerned with demonstrating that what he did was right, rather than arguing that he didn’t do it. One of al Mahdi’s lawyers, Jean-Louis Gilissen, insisted that his client’s decisions were made in line with “a new possibility for Mali”. He stressed that his client’s views were political rather than criminal: “Fundamentalism is a political plan or project and, let’s be clear on this, a political project that is not a crime. This is important and should be stressed.” In this context, al Mahdi was “doing what is right” and “seeking the means to allow his conception of good over evil to prevail.” Rather ominously, Gilissen added: “We’re talking about two visions of the world that are in contradiction.”

Unsurprisingly, ICC prosecutors are having none of it. Chief Prosecutor Fatou Bensouda maintained that, despite not involving any direct physical harm to civilians, “[t]he charges we have brought against Mr. Ahmad al-Faqi al-Mahdi involve most serious crimes”. Bensouda further exclaimed that that the destruction of moments “dedicated to religion and historic monuments falls into the category of crimes that destroy the roots of an entire people… It means the annihilation of a civilisation’s landmark and crucible.”

Dramatic battle

Both sides — the prosecution and the defence — are settling into their trenches for what promises to be a dramatic battle. But if the confirmation hearings are any indication, the potential trial will likely be very disjointed, with the prosecution outlining the forensic, criminal facts of the alleged crimes, and the defence arguing on a more meta-level about the legitimacy of Islamic fundamentalism and al Mahdi’s worldview. This will undoubtedly make for a challenging scenario for the presiding judges who will be tasked with allowing al Mahdi to defend himself according to his rights to a fair trial but also preventing the courtroom from warping into a pulpit to spread and justify a hateful and violent ideology.

If al Mahdi does face trial, which we will find out within 60 days, it could set precedents for how the ICC deals with other Islamic extremists, including members of ISIS in, for example, Libya. In particular, al Madhi’s case could yield important changes in the way the international community approaches violent extremism and terrorism. As former ICC Chief Prosecutor Luis Moreno Ocampo has convincingly argued, combating terrorism would be more effective — and humane — if terrorists were treated as criminals to prosecute rather than enemies to bomb. It is still early days, but the trial of al Mahdi could play a modest, but welcome, part in re-orienting the way the international community deals with violent extremism.

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Courtside Justice is a bi-monthly column by Mark Kersten, the creator of Justice in Conflict, looking into the politics and dilemmas of international justice.