International Justice Monitor

A project of the Open Society Justice Initiative

Victims Ask ICC to Severely Punish Islamic Leader; Judgement Set for September 27

The victims in the trial of a former Malian Islamic leader at the International Criminal Court (ICC) have declined to accept his guilty plea or forgive him and instead they have asked judges to punish him severely.

Mayombo Kassongo told Trial Chamber VIII on Wednesday that the victims had suffered a deep loss when mausoleums of saints revered in the northern Mali city of Timbuktu were attacked and destroyed in mid-2012. Kassongo represents the victims in the trial of Ahmad Al Faqi Al Mahdi.

Al Faqi is charged with a single war crime of completely or partially destroying nine mausoleums and a door of a mosque in Timbuktu between June 30 to July 11, 2012. No civilian was killed or injured during the attacks on the centuries-old buildings.

“The victims of Timbuktu ordinarily would admire their saints as a child would admire their father,” said Kassongo, who told the court he had just been to Mali on a mission to speak with the victims in the case. He arrived on Wednesday in The Hague where the trial is taking place to make final submissions on behalf the victims.

Kassongo was appointed by the court to represent the victims in June. Victims only began applying to be admitted to the case in late May this year.

Before Wednesday, Kassongo had not made any submissions on the case either in writing or in person. Most of his time in the past two months since his appointment seems to have been spent on getting up to speed with the case and his clients.

On Wednesday, Kassongo told the court that everyone in Timbuktu had a key, “which is a symbolic link between the spirits of the dead and the living.”

“We must understand that these keys represent a more or less palpable link between a physical person and the monuments,” continued Kassongo.

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.

Some of these mausoleums were built in memory of men who lived in Timbuktu as far back as the 15th century. Al Faqi is charged with carrying out the attacks against these historic buildings while he was leader of Hisbah, a morality brigade that was under the command of Ansar Eddine. This group and another extremist Islamic group, Al Qaeda in the Islamic Magreb, controlled Timbuktu for most 2012.

“Ansar Eddine sought to eradicate the past of the people of Timbuktu and their identity,” said Kassongo.

He said the victims do not consider it enough that the United Nations Educational, Scientific and Cultural Organization (UNESCO) has restored some of the mausoleums that were destroyed. Eight of the mausoleums that were attacked are on UNESCO’s World Heritage List.

“The reconstruction and safeguarding of the monuments did not repair the spirit of the people,” Kassongo said.

On Monday, Al Faqi pleaded guilty to the war crime charge of completely or partially destroying the nine mausoleums and the door of a mosque. Al Faqi also asked the people of Timbuktu and Mali to forgive him.

“The victims do not accept Mr. Al Mahdi’s plea of guilty. The victims say forgiveness has been asked for in the wrong place. Why is he doing this only here?” said Kassongo.

“This trial must be historical to the extent it upholds the fight against impunity and protects mankind’s heritage,” Kassongo continued later.

“The destruction of sacred and historical monuments is something that must be punished severely,” concluded Kassongo.

The prosecution and defense also made their final submissions on Wednesday. The day’s hearing began with senior trial lawyer Gilles Dutertre making the final submission on behalf of the prosecution.

His presentation focused on what factors the judges should consider when reaching a decision on sentencing. Dutertre said the crime Al Faqi is charged with is a grave one, but the prosecution also recognized that he has been cooperative and even gave the prosecution information on other matters that Dutertre did not specify. He also said the prosecution accepted that Al Faqi was remorseful for what he did. 

Dutertre affirmed a sentence of between nine and 11 years for Al Faqi as contained in a plea agreement the prosecution and defense signed in February this year. The prosecution already made submissions on Monday this week on the legal basis for the charge against Al Faqi and laid out some of their evidence. Three prosecution witnesses also testified between Monday and Tuesday this week.

Kassongo followed Dutertre’s submission with his presentation of the concerns of the victims. Then Al Faqi’s lead lawyer, Mohamed Aouini, presented the defendant’s case.

Aouini narrated Al Faqi’s family and educational background and explained how he was considered a respected member of society because of his work as a teacher in Timbuktu. Aouini said Ansar Eddine lured Al Faqi to join them by giving him a computer and a color printer.

“They offered him 40,000 euros, and he used it to pay off his debts and improve his life. That is how Mr. Al Mahdi voluntarily and without coercion joined that group,” Aouini said.

Another of Al Faqi’s lawyers, Jean-Louis Gillisen, continued the defense submissions. Gillisen submitted that even after joining Ansar Eddine in April 2012, Al Faqi did not advocate destroying the mausoleums. He said the decision to destroy the mausoleums was made by the three-man presidency running Timbuktu on behalf of Ansar Eddine and Al Qaeda in the Islamic Magreb.

Gillisen said that once the top leaders made the decision to destroy the mausoleums Al Faqi did not feel he could challenge the decision because he was lower in the leadership hierarchy. Gillisen also said these two extremist Islamic groups punished members who were slow to execute decisions. He said the groups also punished those who deserted them.

Al Faqi’s lawyer also asked the  judges to consider that even as he organized the attacks on the mausoleums, nobody was injured in the attacks and no graves were dug up.

“Nothing has been established in this case that there was a will to destroy a culture or a religion,” Gillisen said.

He also asked the judges to consider the fact that Al Faqi’s has a family when making their decision on sentencing. Gillisen said this is usually a mitigating factor in criminal cases.

Gillisen said the judges should also take into account Al Faqi’s guilty plea made on Monday and the remorse he has expressed since he was first interviewed by prosecution staff in September 2015.

“You have a man saying, ‘I have had time to reflect.’ It is not a calculated matter. It is not a circumstantial plea. With the help of the investigators this man continues on this path that is his,” Gillisen said.

Later Gillisen said, “You cannot say that his admissions were insincere. This man knows he has done wrong.”

He said retribution is necessary, but Gillisen also said it “must be measured because by its nature it will undermine the possibility of rehabilitation.”

“I don’t think that we should consider the possibility of reoffending. I do not think that will happen,” Gillisen argued.

In conclusion, Gillisen said, “We trust the bench, and we deliver up to you the man we have provided support to over the past several months.”

Once Gillisen concluded his submissions, Presiding Judge Raul C. Pangalangan said that was the end of the trial. He said Trial Chamber VIII will issue its judgement on September 27. He also said that if the chamber decides to convict Al Faqi, the chamber will simultaneously announce its decision on sentencing the same day.

The reason Judge Pangalangan qualified his statement about Trial Chamber VIII’s judgement is that under the ICC’s founding law, the Rome Statute, it is not automatic that if an accused person pleads guilty, as is the case with Al Faqi, that that person will be convicted. Article 65 of the Rome Statute requires judges to independently assess the evidence presented and determine whether it supports a guilty plea.

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