Al Faqi Declines to Make Submissions in Northern Mali Case

A Malian rebel leader decided not to defend himself during a hearing at the International Criminal Court (ICC) that was held to hear whether he should stand trial for a war crime charge of destroying religious and historic monuments in northern Mali.

Defense lawyer Mohamed Aouini informed Pre-Trial Chamber I of this decision towards the end of Tuesday’s last session when it was his turn to speak. Aouini spoke after the prosecution has spent most of the day arguing why his client, Ahmed Al Faqi Al Mahdi, should stand trial.

“We shall reserve our submissions as to the merits [of the prosecution’s case] to the later stage of the proceedings,” Aouini told the chamber. This statement suggests Aouini expects his client to be called to stand trial because after Tuesday’s hearing, Pre-Trial Chamber I will hold no further hearings and receive no further submissions.

Presiding Judge Joyce Aluoch said at the close of the day’s proceedings that the statutory 60-day deadline for the chamber to make its decision whether to confirm the charge against Al Faqi begins on Wednesday. This 60-day deadline for a pre-trial chamber to make its decision whether to confirm charges against a suspect is provided for under the ICC’s Regulations of the Court.

Although Aouini said Al Faqi did not wish to make a defense at the confirmation of charges stage, he asked another member of Al Faqi’s defense, Jean-Louis Gilissen, to make brief observations.

Gilissen said Al Faqi saw the version of Islam he followed and the choices he made in 2012 as “a new possibility for Mali.”

Gilissen referred to 2012 because that is the year Al Faqi is alleged to have been involved in the destruction of nine religious and historic monuments and the door of a mosque in the ancient city Timbuktu. The charge the prosecution is seeking to have confirmed against him is that between June 30, 2012 and July 11, 2012 he played a role in the destruction of religious and historic monuments, many of them listed as World Heritage Sites, in Timbuktu. The prosecution want him charged under Article 8(2)(e)(iv) of the court’s founding law, the Rome Statute.

“Fundamentalism is a political plan or project and, let’s be clear on this, a political project that is not a crime,” Gilissen said. “This is important and should be stressed.”

Gilissen said there were no mosques attacked nor were any tombs destroyed in Timbuktu in 2012.

“We are talking of attacking the covering of tombs,” Gilissen said.

Tuesday began with ICC Prosecutor Fatou Bensouda quoting the words two residents of Timbuktu in response to the destruction of the monuments in June-July 2012. Bensouda said the attacks received extensive media coverage and Al Faqi and others “revealed to the whole world their contempt for these buildings and for the rules set out by the Rome Statute, which defines such conduct as a war crime.”

“Let us be clear: what is at stake is not just walls and stones. The destroyed mausoleums were important, from a religious point of view, from an historical point of view, and from an identity point of view,” Bensouda continued.

“Such an attack against buildings dedicated to religion and historic monuments falls into the category of crimes that destroy the roots of an entire people and profoundly and irremediably affect its social practices and structures,” Bensouda said.

After Bensouda spoke, trial lawyer Marie-Jeanne Sardachti presented to the chamber a history of the men for whom the mausoleums were built, in some cases dating back to the 15th century. She gave this history quoting in part experts whom she only identified by pseudonym. She told the court about the role those mausoleums had in contemporary daily life of Timbuktu and in some cases presented photos of the mausoleums before they were destroyed. She then described some of the attacks on the mausoleums and what was destroyed.

Associate trial lawyer Nelly Corbin gave the chamber an overview of the structures the two Islamist armed groups that controlled Timbuktu used to run the city for most of 2012. The groups were Ansar Eddine and Al Qaeda in the Islamic Magreb.

Picking up from Corbin’s presentation, trial lawyer Jagganaden Muneesamy then gave the court an overview of Al Faqi’s life before 2012 and how he got involved with Ansar Eddine and Al Qaeda in the Islamic Magreb when they controlled Timbuktu in 2012. Muneesamy also told the court about Al Faqi’s leadership of Hesbah, a morality brigade in the city. He then told the chamber about Al Faqi’s role in the destruction of the monuments. A significant part of Muneesamy’s presentation was made in private session.

Legal assistant Sarah Coquillard then argued why the prosecution believed that the attacks on the mausoleum constituted a war crime. Trial lawyer Colin Black then argued how the provisions in Article 25(3) of the Rome Statute covering individual criminal responsibility applied to Al Faqi. Black said that the prosecution believed the provision describing who a direct co-perpetrator was best suited this case. Black’s presentation ended the prosecution’s submissions in Tuesday’s hearing.

A redacted version of the prosecution’s document detailing the factual and legal foundation of its case against Al Faqi and its annexes can be found here (only available in French).

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