International Justice Monitor

A project of the Open Society Justice Initiative

Al Faqi Pleads Guilty to War Crime Charge, Apologizes to Malians

Ahmed Al Faqi Al Mahdi told the International Criminal Court (ICC) he is guilty of the war crime of completely or partially destroying historic buildings in the northern Mali city of Timbuktu in 2012.

Al Faqi made this declaration on Monday, August 22, the opening day of his trial before Trial Chamber VIII. This is the first time an accused person has made a guilty plea before the ICC.

After pleading guilty to the single count of a war crime he is charged with, Al Faqi apologized to the inhabitants of Timbuktu and the citizens of Mali in general for attacking Mali’s cultural heritage. He also asked for their forgiveness.

“I’m really sorry, and I am really remorseful,” Al Faqi said in an unsworn statement after pleading guilty.

“I would like to seek the pardon of the whole people of Timbuktu,” Al Faqi said. He added he hoped that whatever punishment the court decided to give him would, “be enough for the people of Timbuktu.”

“My hope is that the punishment will be a source of purging the evil spirits that overcame me,” continued Al Faqi.

After he made his statement, Presiding Judge Raul C. Pangalangan asked Al Faqi a number of questions for the chamber to ensure he was making his guilty plea voluntarily, and he understood the implications of making such a plea. Al Faqi responded that he voluntarily made the guilty plea, and he understood it meant him waiving many of his fair trial rights as a defendant.

Judge Pangalangan also asked Al Faqi whether he understood that an agreement on a sentence of between nine and 11 years that he and his lawyers reached with the prosecution was not binding on Trial Chamber VIII. Al Faqi said he understood this.

The judge’s reference to a sentencing agreement was the first time such an agreement has been spoken of publicly since Niger handed over Al Faqi to the ICC. The defense and prosecution agreed on a sentence as part of a larger agreement on Al Faqi’s guilty plea. They also agreed not to file any appeals if the trial chamber confirms a sentence of between nine to 11 years.

A redacted version of plea agreement was made public on Friday last week. The plea agreement was filed with Pre-Trial Chamber I on February 25 this year. A joint defense-prosecution submission on the agreed facts of the case is annexed to the plea agreement. The filing on agreed facts is in French and Arabic. All these documents were signed on February 18 this year by Al Faqi, his lawyers Mohamed Aouini and Jean-Louis Gillissen, ICC Prosecutor Fatou Bensouda, and senior trial lawyer Gilles Dutertre.

This plea agreement was filed six days before Pre-Trial Chamber I held a confirmation of charges hearing on the case against Al Faqi on March 1. It was during that confirmation of charges hearing that Al Faqi said he intended to plea guilty. This was in line with his undertaking in the plea agreement to let the pre-trial and trial chambers know he wished to make such a plea.

After taking Al Faqi’s guilty plea, Judge Pangalangan called on the prosecution to make their opening statement. ICC Prosecutor Fatou Bensouda was the first to speak on behalf of the prosecution.

She spoke about the importance of culture and the impact of the complete or partial destruction of the historic buildings Al Faqi is charged with organizing and carrying out.

“Make no mistake, for centuries, the mausoleums in Timbuktu have been an important foundational block on which the identity of the city’s inhabitants has been built. That continues to be very much true today,” Bensouda said.

“To be born and raised in Timbuktu is to be inspired and shaped by the century-old mosques and mausoleums that personify this historic city’s cultural foundation,” continued Bensouda.

“I ask us all to imagine, if only for a second, what it must have felt like, then, in that fateful summer in 2012, to witness the wanton destruction of this cherished cultural heritage – a deliberate assault on one’s identity, spiritual beliefs, and prized cultural possessions,” the prosecutor said.

The buildings in Timbuktu Al Faqi is charged with having planned the destruction of and participated in the complete or partial destruction of 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 Mikki Mausoleum; the Sheikh Abdoul Kassim Attouaty Mausoleum; the Sheikh Sidi Ahmed Ben Amar Arragadi Mausoleum; the door of the Sidi Yahia Mosque; the Bahaber Babadie Mausoleum and the Ahmed Fulane Mausoleum, both adjoining the Djingareyber Mosque. Al Faqi is charged with taking part in the destruction of these buildings between June 30 and July 11, 2012.

In her opening statement, Bensouda observed that the attacks on the mausoleums in Timbuktu in 2012 was part of a global trend.

“The world in the 21st century has witnessed too many attacks against historic monuments and buildings dedicated to religion. This worrying trend must be stopped in its tracks. This regrettable reality must cease,” said Bensouda.

“Recently, we have seen the calamitous destruction of Palmyra in Syria, and just last month, we saw the so-called ISIS destroy yet another historic monument: a mausoleum north of Baghdad,” Bensouda continued.

“My message today is this: our cultural heritage is not a luxury good. Our cultural heritage is a vital instrument of human development,” she said.

“To protect cultural property is to protect our culture, our history, our identity, and our ways of expressing faith and practicing religion for current and future generations. We must protect our common heritage from desecration, ravages, and the long-term effects of such destructive acts,” Bensouda stated.

After Bensouda made her statement, senior trial lawyer Gilles Dutertre continued the prosecution’s presentation by laying out the evidence they gathered. Dutertre presented to the court videos and photos to show Al Faqi and others destroying the different mausoleums he is charged with attacking. Some of the video clips Dutertre showed the court came from television stations such as Al Jazeera, France 2, and TFI. Dutertre also presented the court with satellite images and photos to show the buildings before and after they were destroyed.

Part of Dutertre’s presentation was closed to the public. When he finished, the first prosecution witness was brought in to testify during the day’s afternoon session. This witness is testifying under protective measures that include his face and voice being distorted so the public streaming the court proceedings online cannot identify him. Also the witness is identified in public by pseudonym.

The witness answered questions about the prosecution’s evidence on the Islamic groups’ that controlled Timbuktu in 2012 during the time the historic buildings were attacked. These groups were Al Qaida in the Maghreb and Ansar Eddine.

The witness was also asked about the first interview prosecution staff had with Al Faqi between September 1 and September 5, 2015 while Al Faqi was in the custody of Niger. This interview took place almost two weeks before Pre-Trial Chamber I issued an arrest warrant for Al Faqi on September 18, 2015.

During the September 1-5, 2015 interview, the witness said Al Faqi admitted he was involved in the destruction of historic buildings in Timbuktu in 2012. The witness also said that the Office of the Prosecution had arranged for Al Faqi to have a lawyer present during the interview to ensure his rights were protected. The lawyer who was advising Al Faqi at the time was Mohamed Aouini, who is currently representing Al Faqi during his trial. However, in September 2015, Aouini’s engagement was only for the limited purpose of advising Al Faqi during the interview, the witness said. He said Aouini was not acting permanently for Al Faqi at that point.

Currently, Al Faqi is in the custody of the ICC, and his legal team is paid by the ICC under its legal aid provisions.

The witness will continue testifying on Tuesday.

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