ICC ruled: the destruction of Timbuktu was a war crime

NEW RELEASES – The strong bonds between cultural heritage and human rights, along with their implications on peacebuilding and peacekeeping, should always be highly valued and recognised. A real turning point was the decision of the International Criminal Court (ICC), made earlier this year, to sentence Mr Al Mahdi to 9 years in prison for having committed the war crime of destruction of cultural sites in Timbuktu, Mali.

“Destruction of cultural heritage is not a second-rate crime. It’s part of an atrocity to erase a people.”1 Mark Ellis, International Bar Association

Anglais

Reconstruction of historical sites in Mali. - Source: UNESCO Bureau of Mali.

Historical heritage and human rights

In spite of the long-established division of “first-class” political and civil rights and “second-class” economic, social and cultural ones, the understanding of human rights as all vitally interconnected and interdependent has become more prominent in the past few years.

For what concerns cultural rights, UNESCO has pointed out that, building on international law, “there is increasing recognition of the connection between attacks against cultural heritage and the diminution of human rights and security.”2 In fact, the destruction of historical heritage leads to the dissemination of fear and hatred and deprives people of their fundamental human rights; for instance, the right to education and the right to freedom of expression. These practices have been defined “cultural cleansing.”3 The term echoes the one of “ethnic cleansing”; however, the idea of cultural cleansing involves the complete removal of the true identity of human beings as if their collective cultural traditions, religious beliefs and history never existed.4

Preserving our global historical heritage, instead, means protecting material culture (objects of art and of daily use, architecture etc.) and intangible culture (music, theater language and human memory etc.)5 Without these elements, people could not fully enjoy their human rights and could not live in peace. Crucially, Charlie English – journalist of the Guardian - has noted: “Caring about monuments doesn’t mean you can’t care about people.”6 In fact, the exact opposite is true.


The destruction of cultural heritage has already been dealt with by international law mechanisms. The Economist has reported that cultural cleansing “was a feature of warfare in South-eastern Europe in the late 20th century”7 and it clearly overlapped with genocide. In that context, the international criminal tribunal for the former Yugoslavia charged the perpetrators with “shelling Dubrovnik, wrecking the ancient bridge at Mostar and damaging the national library in Sarajevo.”8 That was, however, a rare case. For many years, the matter of impunity for cultural heritage destruction was of huge concern. For instance, the Khmer Rouge genocide trials did not deal with the looting of Cambodia’s Hindu temples.9

 


Timbuktu, Mali and its destruction

UNESCO describes Timbuktu as “one of the cities of Africa whose name is the most heavily charged with history”10 since it was an intellectual and spiritual capital and a centre for the propagation of Islam throughout Africa in the 15th and 16th century.

As the International Federation of Human Rights11 has reported, in January 2012 Mali faced a Tuareg armed rebellion in the north of the country. Thus, the National Liberation Movement of Azawad quickly launched an offensive, which was joined by Islamist groups present in the Sahel band. “Hostilities were conducted in flagrant violation of international humanitarian law.”12 As part of the violations, Timbuktu witnessed the destruction of several mausoleums, considered blasphemous by the jihadists, and shrines. Moreover, about 4,000 ancient manuscripts were lost, stolen or burned.13 UNESCO has noted that these attacks to cultural heritage “should be put into perspective, as part and parcel of the same global strategy of persecution and destruction, which seeks to tear at the fabric of society, to deny human rights and to quash the rule of law.”14

 


Al Mahdi case

In July 2012, the Prosecutor of the ICC, Ms Fatou Bensouda, declared that the destructions in Timbuktu may constitute a war crime under Article 8 of the Rome Statute. The first suspect for crimes committed in Mali, Mr Al-Mahdi, was transferred by the authorities to The Hague in 2015. “Mr Mahdi’s misdeed was to organise and participate in the destruction of structures […] erected long ago over the graves of revered Islamic holy men and scholars”15, reported The Economist. Mr Al Mahdi plead guilty to the charges, setting a first historical precedent. Moreover, in August 2016, the ICC found him guilty, as a co-perpetrator, of the war crime of intentionally directing attacks against historic monuments and buildings dedicated to religion, thus sentencing him to 9 years of prison.


With this case, the ICC sent a powerful message: impunity for the war crime of destruction of cultural heritage needs to stop. However, importantly, it needs to be mentioned that the cases of countries like Yemen, Syria or Iraq could not be heard by the ICC since they are not members. The Court could only act under request of the UN Security Council, which would require America and Russia agreeing.16 Hence, the matter has strong political implications that do not give any certainties for the current moment.

On the other hand, it’s also important to point out that many efforts have been made to raise awareness about the destruction of cultural heritage, promoting the protection of historical sites through real accountability. As the Guardian17 highlighted, an exhibition has been organised in Rome, which involves a reproduction of the human-headed winged bull of Nimrud and a reconstruction of the Temple of Bel at Palmyra (Syria.) These initiatives should not be underestimated. Rather, they should give more motivation and encouragement to further protect our global cultural heritage and promote a culture of respect and tolerance which sits at the roots of human rights protection and peace.

 

1BOWCOTT Owen (2016) “ICC's first cultural destruction trial to open in The Hague”, the Guardian. Available at: https://www.theguardian.com/law/2016/feb/28/iccs-first-cultural-destruct...

2 UNESCO, World Heritage Centre, Timbuktu. Available at: http://whc.unesco.org/en/list/119/

3Ibidem

4ENGLISH Charlie (2016) “Irina Bokova: the woman standing between Isis and world heritage”, the Guardian. Available at: https://www.theguardian.com/culture/2016/jun/03/irina-bokova-un-unesco-w...

5SILVERMAN Helaine and RUGGLES D. Fairchild (2007) “Cultural Heritage and Human Rights”, Springer New York, 3-29. In: Springer Link. Available at: http://link.springer.com/chapter/10.1007/978-0-387-71313-7_1

6 ENGLISH, Op.Cit.

7 ERASMUS, Religion and public policy (2016) “The slow acceptance that destroying cultural heritage is a war crime”, The Economist. Available at: http://www.economist.com/blogs/erasmus/2016/09/cultural-patrimony-and-la...

8 BOWCOTT, Op.Cit.

9Ibidem

10 UNESCO, Op.Cit.

11 International Federation for Human Rights (2016) “First step on the path to justice: ICC sentences Al Mahdi to 9 years”, Press release. Available at: https://www.fidh.org/en/region/Africa/mali/first-step-on-the-path-to-jus...

12Ibidem

13 SMITH David (2015) “Alleged militant appears at The Hague charged with cultural destruction in Mali”, the Guardian. Available at: https://www.theguardian.com/law/2015/sep/30/ahmad-al-faqi-al-mahdi-the-h...

14 UNESCO, Op.Cit.

15 ERASMUS, Op.Cit.

16Ibidem

17 KIRCHGAESSNER Stephanie (2016) “Bull of Nimrud destroyed by Isis to be recreated in Rome”, the Guardian. Available at: https://www.theguardian.com/world/2016/oct/06/bull-nimrud-destroyed-isis...

 

 

MR - Research Assistant at CIPADH

 

 

 

Webography

BOKOVA Irina (2016) “Ending Impunity for War Crimes on Cultural Heritage: The Mali Case”, UNESCO. Available at: http://www.unesco.org/new/en/unesco/about-us/who-we-are/director-general...

BOWCOTT Owen (2016) “ICC's first cultural destruction trial to open in The Hague”, the Guardian. Available at: https://www.theguardian.com/law/2016/feb/28/iccs-first-cultural-destruct...

ENGLISH Charlie (2016) “Irina Bokova: the woman standing between Isis and world heritage”, the Guardian. Available at: https://www.theguardian.com/culture/2016/jun/03/irina-bokova-un-unesco-w...

ERASMUS, Religion and public policy (2016) “The slow acceptance that destroying cultural heritage is a war crime”, The Economist. Available at: http://www.economist.com/blogs/erasmus/2016/09/cultural-patrimony-and-la...

International Criminal Court (2012) Situation in the Republic of Mali, ICC-01/12. Available at: https://www.icc-cpi.int/mali

International Federation for Human Rights, FIDH (2016) “First step on the path to justice: ICC sentences Al Mahdi to 9 years”, Press release. Available at: https://www.fidh.org/en/region/Africa/mali/first-step-on-the-path-to-jus...

KEATING Joshua (2013) “How many of Timbuktu’s priceless manuscripts were destroyed?” Foreign Policy. Available at: http://foreignpolicy.com/2013/01/28/how-many-of-timbuktus-priceless-manu...

KIRCHGAESSNER Stephanie (2016) “Bull of Nimrud destroyed by Isis to be recreated in Rome”, the Guardian. Available at: https://www.theguardian.com/world/2016/oct/06/bull-nimrud-destroyed-isis...

LOGAN William S. (2008) “Cultural Diversity, Heritage and Human Rights”. In: “The Ashgate Research Companion to Heritage and Identity”. Editors: GRAHAM Brian and HOWARD Peter. Available at: https://books.google.ch/books?hl=fr&lr=&id=iyHzEUKEUi8C&oi=fnd&pg=PA439&...

Rome Statue 2001, ICC. Available at: https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e1...

SILVERMAN Helaine and RUGGLES D. Fairchild (2007) “Cultural Heritage and Human Rights”, Springer New York, 3-29. In: Springer Link. Available at: http://link.springer.com/chapter/10.1007/978-0-387-71313-7_1

SMITH David (2015) “Alleged militant appears at The Hague charged with cultural destruction in Mali”, the Guardian. Available at: https://www.theguardian.com/law/2015/sep/30/ahmad-al-faqi-al-mahdi-the-h...

The Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15. Available at: https://www.icc-cpi.int/mali/al-mahdi

UNESCO, World Heritage Centre, Timbuktu. Available at: http://whc.unesco.org/en/list/119/

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