The trial of Ahmed Al Faqi Al Mahdi of Mali will bring with it several firsts for the International Criminal Court (ICC) when it opens next week.
Al Faqi is the first leader of a militant Islamic group to be tried at the ICC. His case is also the first time before the ICC that, as a main charge, someone is charged with the war crime of destroying cultural buildings.
The other first is that Al Faqi has indicated he intends to plead guilty, the first time an accused person before the ICC has given such an indication. Al Faqi stated his wish to plead guilty during the confirmation of charges hearing held on March 1.
Al Faqi, who was handed over to the ICC in September last year, is charged with partially or completely destroying historic buildings in the northern Mali city of Timbuktu. The charge covers the period of June 30 to July 11, 2012. During the time, Al Faqi was a leader in one of the Islamic groups that controlled the city. The charge also covers the partial or complete destruction of nine mausoleums and the door of a mosque in Timbuktu
If Al Faqi maintains his guilty plea when the trial starts on August 22, then the three judges of Trial Chamber VIII will have the responsibility of setting the precedent on how the court handles a guilty plea. Article 65 of the ICC’s founding law, the Rome Statute, lays out the framework judges are to use when presented with a guilty plea, but the details are left to a trial chamber.
For example, Article 65 provides that the judges should satisfy themselves that the facts of the case support a guilty plea before reaching a decision to accept such a guilty plea. The details of how the judges are to reach such a conclusion is left to them.
As it is expected that Al Faqi will plead guilty, Trial Chamber VIII has scheduled hearings for only five days, starting next Monday. The prosecution has indicated that they will call only three witnesses to present their case. The prosecution has said those witnesses will be prosecution staff and experts.
Al Faqi will not have any witnesses testifying in his defense because his defense team has been unable to arrange for such witnesses by the July 1 deadline Trial Chamber VIII had set. Al Faqi’s defense has informed the chamber that they wish to call two witnesses who will speak to the character of Al Faqi, but they have not been able to reach them because of logistical reasons. The Single Judge of Trial Chamber VIII, Raul C. Pangalangan, ruled on August 8 that the chamber would be satisfied with receiving the written statements of those potential defense witnesses even after the trial has concluded. Judge Pangalangan explained that because the defense had said the witnesses in question would be speaking to Al Faqi’s character, their testimony would be more relevant to the sentencing stage of the trial, so their written statements would be sufficient.
To deal with procedural matters that would arise ahead of the trial, Trial Chamber VIII designated Judge Pangalangan as the Single Judge to handle such applications.
In his August 8 ruling, Judge Pangalangan also declined to postpone the trial as requested by the defense. He noted that the trial date of August 22 was set on June 1 so that the different legal teams would have time to get in touch with potential witnesses and make the necessary arrangements for them to appear for trial. The judge further said that from the defense submissions, it was unclear when the defense would be able to get in touch with the potential defense witnesses. Judge Pangalangan said that it was unlikely the defense would have the witnesses ready by September 5, the date the defense was proposing for the trial to begin.
The court only began admitting victims to this case in June, after its pre-trial phase had concluded. This is unlike other cases before the ICC where victims are admitted early in the pre-trial phase. It is unclear why victims only applied in May to be admitted to the case when Al Faqi made his first appearance before the ICC in September last year. By the deadline of July 25, the court had admitted nine victims, some representing organizations. This information is in the first and second decision of the Single Judge on the subject of the participation of victims in the case. It is not publicly known what organizations may be represented as the victims are only identified by pseudonym in the court documents that have been made public.
The participation of victims in its proceedings is a unique feature of the ICC. Victims are given an opportunity to tell the court about the harm they suffered as a result of the international crimes that are alleged before the ICC. If the court convicts a defendant, the victims can also seek reparations.
Reparations are one issue Trial Chamber VIII will seek to hear from Al Faqi if he pleads guilty. The chamber will seek to know whether he understands that if he pleads guilty and the court upholds that plea, victims can demand reparations from him. This is one of the requirements of Article 65 of the Rome Statute. The chamber will also seek to know from him whether he knows that by pleading guilty he will not be able to challenge the case against him and may be convicted.
Once the judges are satisfied Al Faqi understands the implications of his pleading guilty, the trial hearings will proceed.