Timbuktu destruction: Reactions to landmark ICC reparations order

On 17 August the ICC delivered its first reparations order for the war crime of destruction of cultural property. The Court found Malian Islamist Ahmad al-Faqi al-Mahdi - who had pled guilty last year to intentionally directing attacks against religious and historic buildings in Timbuktu in 2012 - personally liable for 2.7 million euros of the harms linked to his war crimes conviction.

Ahmad al-Faqi al-Mahdi was sentenced to nine years in prison by ICC judges in October 2016 for his part in the destruction of 10 historic and religious monuments between June and July 2012 in Timbuktu, home to thousands of precious manuscripts, mausoleums of local saints and historic structures that were widely used and revered by the local population.

The ICC is the first international tribunal to provide reparations to victims; a key restorative feature of the Rome Statute, the Court’s founding treaty. In its third reparations order to date, the Court’s judges ordered reparations for three categories of harm: damage to the attacked historic and religious buildings, consequential economic loss, and moral harm.

Reparations will be collective in nature and may include symbolic measures – such as a memorial, commemoration or forgiveness ceremonies – to give public recognition of the moral harm suffered by the Timbuktu community and those within it.

The ICC judges also ordered individual reparations for those whose livelihoods exclusively depended on the attacked buildings and those whose ancestors' burial sites were damaged.

Recognizing that al-Mahdi is indigent, the ICC encouraged the Trust Funds for Victims (TFV) to cover ("complement") the reparations award to the fullest extent possible. The TFV is expected to submit a plan to the ICC’s judges on the implementation of the reparations by 16 February 2018.


Civil society reacts

The Mali national Coalition for the ICC hailed the decision as “a clear step forward in recognizing the rights of victims and historical and cultural property.”

Luke Moffett, Senior Lecturer at the Queens’ University Belfast Human Rights’ Centre explained the historic significance of the ICC’s first reparations order for the war crime of destruction of cultural sites, but also raised the challenges that will come up in its implementation.

“The International Criminal Court's reparations decision today in the Al Mahdi case is a welcome addition to the Court's growing jurisprudence on reparations. Importantly the Court recognised the human aspect of destruction of cultural property on communities. International law is very silent on reparations for cultural property, instead focusing on protection, preservation and prosecution. The decision in the Al Mahdi case represents a starting point in recognising that when cultural property is destroyed we also need to engage with reparations to individuals and communities affected.

“The Court's decision today indicates it continuing move away from the Lubanga [reparations case] decision, by awarding individual compensation with collective measures. The Court is striving to strike the correct balance between responding to the harm victims' suffered, number of victims, limitations of the charges, and the indigence of the convicted person. This can be seen by the Chamber focusing compensation to those who suffered the most harm, such as guardians and direct descendants of the mausoleums, with collective reparations used to widen the benefits of reparations at the ICC to the affected community in Timbuktu,” Moffet continued. “This decision will be of use to other international bodies such as the ECCC in dealing with the destruction of cultural property of the Cham or any future mechanism addressing the Syrian conflict. In particular the decision emphasises that even where destroyed cultural property has been destroyed there still need to be measures to remedy the moral, psychological and economic harm caused to individuals and communities by the destruction of cultural property. Challenges remain for the Court and the Trust Fund in implementing reparations in this case, given ongoing security issues in Mali and Timbuktu as well as finding the funding, due to Mr Al Mahdi's indigence.”

Carla Ferstman, Director of REDRESS, contextualized the harm caused by the cultural heritage destruction and stressed the importance of engaging with individuals to make sure the ICC reparations are meaningful: “The destruction of the mausoleums and mosques in Timbuktu not only destroyed and damaged physical structures, but caused harm, which rippled out into the community and diminished the link and identity the local community had with such valuable cultural property. Not only were they religious buildings, they had a symbolic and emotional value for the inhabitants, which saw their past, their identity and even their dignity under attack.”

“UNESCO and the Malian government have prioritised community engagement in the reconstruction and rehabilitation of the sites. The ongoing participation of those communities and individuals affected must continue to be a priority during the implementation of the reparations awarded today.  Victims must be able to articulate their needs and set their priorities so they remain engaged in the rehabilitation of the sites and do not feel disconnected to them” added Ferstman.

The Queen’s University Belfast Human Rights Centre and REDRESS submitted joint observations to the ICC’s judges in the al-Mahdi reparations case in December 2016, as amicus curia, to inform the Chamber of their views on restorative measures for damaged or destroyed cultural property, the impact of the destruction, appropriate measures to address the victims’ harm, and appropriate apologies and acknowledgements of responsibility.

International Bar Association Executive Director Mark Ellis welcomed the court’s landmark reparations order as well as the latitude the TFV will be given in ensuring a victims-centric approach to its implementation: "I think that's an important decision as well because the [TFV] made it clear that [it] was going to be a real challenge to distribute compensation, particularly with the security situation in northern Mali."

“Having been involved with international justice for a very long time, it's difficult to make a sweeping judgment on whether or not victims as a whole feel that they have gained justice. I suspect many will not feel that way at all and I completely understand it," Ellis added. "[...] With cultural destruction, by destroying cultural heritage, it's really an attack on collective memory. It’s ethnic cleansing. It's an intention to erase people's identity, and that is very difficult then to provide any justice for individuals who have gone through this and have watched the destruction of cultural property. I hope they do feel justice was gained but it's not surprising if they don't. And, it's unfortunate that oftentimes that's the reality."

Recalling that hundreds of civilians were murdered, tortured, and raped during the 2012 conflict in Mali, Drissa Traoré, FIDH Vice-President, reiterated the need to remember not only the global legal significance of the reparations order, but also the local context of the ICC case: “This reparations order is historic. The unique character of the war crime of destructing cultural heritage entails that the crimes not only affect the local community of Timbuktu, but instead the country, and more globally, the whole community. It must not however, make us forget about the other crimes committed at the time in the city, which must also be judged."

Moctar Mariko, President of the Association Malienne des Droits de l’Homme (AMDH), added, “The trial of Al-Mahdi before the ICC was limited to prosecuting the destruction of the cultural heritage of Timbuktu, failing to hold him to account for the other crimes against humanity which he and his men have nevertheless committed."

FIDH together with AMDH also submitted amicus curiae observations to the judges in this case to set out their views on:  “(i) the identification of victims’ categories affected by the crime committed by Mr Al Mahdi; (ii) the different type of harm suffered by the victims; and (iii) the methodology to design and implement the reparations."


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