The Al Mahdi case: Stretching the principles of the ICC to a breaking point?

 

 

The Pre-Trial Chamber confirmed the charges against Al Mahdi on the 24 March 2016. The fact that the Chamber chose to confirm the indictment means that they found that the Prosecutor had presented substantial grounds to believe that Al Mahdi was criminally responsible for having committed, individually and jointly with others, facilitated or otherwise contributed to the commission of war crimes, by intentionally directing attacks against ten religious and/or historical buildings. 

 

The confirmation of charges against Al Mahdi constitutes the first time that someone has been indicted by the ICC – under Article 8(2)(b)(ix) of the Rome Statute – for intentionally attacking religious buildings. 

 

However, this decision could be problematic as it stretches two core principles of the ICC, namely gravity and complementarity, of which the Pre-Trial Chamber made no mention of in its decision.

 

Confirming the indictment against Al Mahdi could be considered a clear break from the initial rationale behind the establishment of the ICC. The ICC was set up to exercise its jurisdiction over persons for the most serious crimes of international concern. Inevitably, the question remains how to identify the “persons who have committed the most serious crimes of international concern”. Moreover, can the destruction of religious buildings qualify as one of the most serious crimes of international concern? The Prosecutor has stated that attacks against religious buildings are so grave that they warrant action by the international community. However, is this a correct interpretation of the gravity threshold of the ICC? Where will the ICC draw the line? 

 

Article 17(1)(d) of the Rome Statute promulgates that a case is inadmissible before the ICC if the case is not of sufficient gravity to justify further action by the Court. The most recent example of a case that was not considered grave enough by the OTP is the so-called Flotilla incident. In this incident, Israeli special forces killed 10 activists on board a vessel that was about to breach the Israeli naval blockade of Gaza. The OTP concluded that the case was not of sufficient gravity and therefore decided to stop its investigation. 

 

In its analysis, the OTP defined the principle of gravity as: 

 

“(i) whether the individuals or groups of persons that are likely to be the object of an investigation, include those who may bear the greatest responsibility for the alleged crimes committed; and 

 

(ii) the gravity of the crimes committed within the incidents which are likely to be the focus of an investigation”**

 

Subsequently, the OTP defined the elements that are to be taken into account when assessing the gravity of the crimes, namely, the “scale, nature, manner of commission of the crimes and their impact.”** 

 

The OTP considered in the Flotilla case that the investigation would not be directed against those most responsible for the crime, that the scale and nature of the crimes were of insufficient gravity, that the evidence was insufficient and finally, that there was insufficient evidence that the impact of the crimes went beyond the direct victims.*** While the issue of “gravity” in the Flotilla case, has – as of yet – not been completely resolved, the OTP’s position in this matter is clear. It is important to note that the Pre-Trial Chamber in the Flotilla case requested the OTP to reconsider its decision not to continue its investigation, a decision which was appealed by the OTP yet subsequently denied by the Appeals Chamber on the basis of a technicality.  

 

When applying the above mentioned gravity criteria to the case of Al Mahdi, it is not immediately understandable why the case would qualify for prosecution by the ICC, when the Flotilla case did not. 

 

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. 

 

Even though the destruction of religious buildings is incorporated in the Rome Statute, one must assume that the drafters envisaged that these crimes would only be prosecuted once committed in combination with other crimes that qualify as a war crime. 

 

The trial of Bosco Ntaganda shows how the crimes of the destruction of religious buildings, albeit of the non-international variety, are prosecuted in connection with other war crimes. The destruction of religious buildings is merely one charge out of thirteen war crimes and five crimes against humanity allegedly committed by Ntaganda. As a result, the Ntaganda case as a whole passes the gravity threshold without question. 

 

The problem with the Al Mahdi case is therefore not so much whether the war crime of destroying religious buildings passes the gravity test, but if the charges as a whole pass this test. 

 

The OTP tried to demonstrate the impact of the crimes on the international community by reminding us of the public outcry that ensued after the footage that was released of the destruction of cultural heritage in Syria. There are grounds to state that, as the Prosecutor did, an attack on religious buildings affects humanity as a whole. However, this fulfils only one of the elements of the gravity of the crimes, and therefore does not automatically mean that the ICC should be the designated institution to prosecute the perpetrators. 

 

With the recent decision of the OTP in the Flotilla case and the confirmation of charges against Al Mahdi, the decision over whether or not a case is of sufficient gravity seems to be arbitrary. The composition of the Pre-Trial Chamber, and its interpretation of the gravity threshold, plays a larger role than envisioned by the States Parties in the establishment of the ICC. One has to wonder whether the OTP should not spend its already limited resources on the prosecution of the actual persons most responsible for the most serious crimes of international concern.

The confirmation of charges was also remarkable given that Al Mahdi had already been indicted for terrorism in Niger before the ICC issued its arrest warrant. When the ICC was established, the States Parties agreed that the ICC would be complementary to national legal systems and thus it would not replace the national legal systems. This means that if a state is able and willing to prosecute a suspect, this state would be given the opportunity to prosecute the suspect under its national law. 

 

However, in this case, when Niger was informed that the ICC would be willing to investigate and prosecute Al Mahdi, they transferred him into the custody of the ICC and relinquished their jurisdiction over him. Niger never indicated that it was not willing or able to prosecute Al Mahdi, as required by the Rome Statute. According to the Rome Statute, Article 17(1)(a), a case is inadmissible when the case is being investigated or prosecuted by a state which has jurisdiction over it, unless the state is genuinely unwilling or unable to carry out the investigation or prosecution. 

 

Thus, the decision to prosecute Al Mahdi seems to be contrary to the complementarity principle of the ICC, and against the rationale of establishing the ICC in the first place. Furthermore, as it is disputable whether or not it would pass the gravity threshold, one must wonder whether it would not have been better if he had been prosecuted by the authorities of Niger. He would still have had to answer for his alleged crimes and, if successfully prosecuted, extremist militias would be shown that the destruction of cultural and religious heritage is indeed punishable by law.

 

The trial of Al Mahdi is a typical case that could have been dealt with on the national level, in accordance with the principle of complementarity, as both the gravity of the crime is debatable and due to the apparent willingness of Niger to investigate and prosecute the case before the ICC became involved. As a result, one might question whether the ICC’s limited resources should not be better spent on more viable examples of the “most serious crimes of international concern”. The decision of the Office of the Prosecutor to indict 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 Al Mahdi case shows that the OTP has started to explore the boundaries of the Rome Statute. Only time will tell whether the ICC will allow the OTP to stretch the core principles any further.

 

 

 

*Eva Vogelvang (LL.M) is junior associate at Knoops’ international lawyers and Sylvain Clerc (LL.M) is researcher at Knoops’ international lawyers.  

 

** See: Office of the Prosecutor, ‘Situation on Registered Vessels of Comoros, Greece and Cambodia: Article 53(1) Report’, 6 November 2014, para 135.  

*** For an analysis of the “Flotilla case” see Geert-Jan Alexander Knoops and Tom Zwart, ‘The Flotilla Case before the ICC: The Need to Do Justice While Keeping Heaven Intact’, International Criminal Law Review 15, no. 6 (2015).