The International Criminal Court’s Pre-Trial Chamber I decided on March 24 that Ahmad al Faqi al Madhi should stand trial on a single war crime charge for his alleged role in the complete or partial destruction of mausoleums in the northern Mali city of Timbuktu.
In one of the quickest confirmation of charges decisions made by a pre-trial chamber of the ICC, Pre-Trial Chamber I unanimously confirmed the single war crime charge the prosecution filed against al Faqi. The decision was made just 23 days after Pre-Trial Chamber I held a hearing on whether to confirm the charge. The chamber also confirmed the four types of individual criminal responsibility the prosecution alleged applied to al Faqi.
The three judges of Pre-Trial Chamber I noted that al Faqi’s defense did not object to the charge nor challenge the prosecution’s evidence or offer its own evidence. The chamber noted the defense had stated it was reserving its submissions on the merit of the case for a later stage of the proceedings. This was a reference to the statement of Mohamed Aouini, al Faqi’s lawyer, during the confirmation of charges hearing that was held on March 1.
The chamber reached its decision to confirm the charge against al Faqi after reviewing video footage of the complete or partial destruction of nine mausoleums and a door to a mosque in Timbuktu between 30 June 2012 and 11 July 2012.
The buildings al Faqi is alleged to have been involved in attacking are: the Sidi Mahamoud Ben Omar Mohamed Aquit Mausoleum; the Sheikh Mohamed Mahmoud Al Arawani Mausoleum, the Sheikh Sidi El Mokhtar Ben Sidi Mouhammad Al Kabir Al Kounti Mausoleum, the Alpha Moya Mausoleum, the Sheikh Mouhamad El Micky Mausoleum, the Sheikh Abdoul Kassim Attouaty Mausoleum, the Sheikh Sidi Ahmed Ben Amar Arragadi Mausoleum; the door of the Sidi Yahia Mosque, and the Bahaber Babadié Mausoleum and the Ahamed Fulane Mausoleum, both adjoining the Djingareyber Mosque.
To reach its decision, the chamber also reviewed the statements of at least six witnesses, satellite imagery of the buildings/structures before and after their complete or partial destruction, documents originating from Malian authorities, media reports, expert analyses, and statements and reports emanating from international organizations including the United Nations Educational, Scientific and Cultural Organization (UNESCO).
The judges said the evidence showed that the buildings in question did not have a military objective. The judges also said the evidence showed that the buildings “played an important role in the life of the inhabitants of Timbuktu and that their destruction was considered as a serious matter and regarded by the local population as an aggression towards their faith.”
“In light of evidence outlined above, the Chamber is satisfied that Ahmad Al Faqi Al Mahdi is individually criminally responsible for the crime charged by the Prosecutor,” said the chamber in its decision.
“Ahmad Al Faqi Al Mahdi was directly and personally involved in all stages of the (partial) destruction of the Buildings/Structures. He was part of the planning phase – as religious expert and prominent personality in the context of the occupation of Timbuktu – as well as of the preparatory and implementation phase – as head of the Hisbah,” continued the chamber.
The three judges of Pre-Trial Chamber I found the prosecution had satisfied the standard required to confirm the single war crime charge against al Faqi. That standard is “substantial grounds to believe.”
“In light of the above, the Chamber finds that there are substantial grounds to believe that Ahmad Al Faqi Al Mahdi committed the war crime of intentionally directing attacks against buildings dedicated to religion and historic monuments under article 8(2)(e)(iv) of the Statute, and therefore confirms the charge brought by the Prosecutor against Ahmad Al Faqi Al Mahdi as set out in the operative part of the present decision.”
In its decision, the chamber said that Judge Peter Kovacs will issue a separate opinion later. Kovacs is a member of Pre-Trial Chamber I together with the chamber’s Presiding Judge Joyce Aluoch and Judge Cuno Tarfusser.
With the confirmation of the charge against al Faqi, his case will now be referred to a trial chamber. He may decide to appeal the decision of Pre-Trial Chamber I, but can only do so if Pre-Trial Chamber I allows him to file an appeal. Given his decision not to challenge the prosecution’s submissions during the confirmation of charges hearing on March 1, it is unlikely that he will seek to appeal Pre-Trial Chamber I’s decision.