The International Criminal Court (ICC) has ordered a former Malian Islamist leader to pay €2.7 million in reparations for the single war crime for which he was convicted: destruction or partial destruction of nine historic buildings and the door to a mosque in northern Mali five years ago.
Trial Chamber VIII made the reparation order on Thursday while recognizing that, at present, Ahmad Al Faqi Al Mahdi is not capable of paying the reparations.
“The Chamber disagrees that Mr. Al Mahdi’s indigence has an impact on its reparations award. The Appeals Chamber has determined that it is an error to conclude that a convicted person’s indigence is relevant to whether he or she should be liable for any reparations awarded,” the chamber said, explaining why it declined the defense’s argument that Al Faqi should not pay any reparations because he is poor.
“A convicted person’s financial circumstances may affect how a reparations award is enforced—such as by affording an option to make reasonable payments in instalments—and the chamber does not intend to impose hardships on Mr. Al Mahdi that make it impossible for him to reintegrate into society upon his release. But the enforcement of reparations awards is under the auspices of the [ICC] Presidency and is beyond the current question of setting Mr. Al Mahdi’s personal liability,” the chamber continued.
Mohamed Aouini, Al Faqi’s lead lawyer, raised the issue of Al Faqi’s income, noting that his client does not come from a wealthy family and that he was a religious teacher before becoming a member of two Islamist groups in Mali in 2012.
Since his detention in 2014, Al Faqi has earned no income. He was first in detention in Niger, where he was held on allegations of arms trafficking. In September 2015, he was handed over to the ICC, where he is currently being held at the detention center in The Hague. His defense is provided for under the legal aid program of the ICC.
Now that a reparations order has been given, the legal representative of the victims and the defense have 30 days to appeal if either disagrees with the order, as provided under Rule 150 of the ICC Rules of Procedure and Evidence.
Al Faqi was convicted of the single war crime of destroying nine mausoleums and the door of a mosque in Timbuktu between June 30 and July 11, 2012. Trial Chamber VIII sentenced him to nine years in prison in line with a guilty plea agreement negotiated between the prosecution and defense.
The chamber found that Al Faqi was involved in planning the destruction and had participated in the attack on the centuries-old buildings while he was the leader of the morality brigade, or Hisbah, one of four institutions set up by the extremist Islamic groups Ansar Eddine and Al Qaeda in the Islamic Maghreb when they controlled Timbuktu in 2012.
Al Faqi is guilty of destroying following buildings: 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; the Ahmed Fulane Mausoleum and the Bahaber Babadie Mausoleum, both adjoining the Djingareyber Mosque. The door to the Sidi Yahia Mosque was also destroyed.
The chamber said most of the reparations it ordered would be collective rather than individual. This was emphasized in the submissions of the legal representative of the victims, Mayombo Kassongo, as well as by the prosecution, the defense, and the United Nations Educational, Scientific, and Cultural Organ (UNESCO).
“As for the types and modalities of reparations needed, the Protected Buildings belonged to the entire community of Timbuktu and their loss was felt by the community as a whole. The Chamber considers that collective reparations are the most appropriate way to address the damage caused,” the chamber said.
“Noting that renovations have already been performed by UNESCO, the Chamber considers that the appropriate modality of reparations shall be measures aimed at rehabilitating the Protected Sites with effective measures to guarantee non-repetition of the attacks against them,” continued the chamber.
UNESCO performed the renovations the chamber referred to in 2015.
“These measures are to be taken to the extent possible and following consultations with Malian government authorities as necessary. The Chamber emphasizes that these reparations should be tailored to the individual concerns regarding each of the Protected Buildings,” said the chamber.
Trial Chamber VIII divided the reparations into three categories: reparations for damage to buildings, reparations for economic losses suffered by the community because of the destruction of the historic buildings, and reparations for moral harm.
The chamber said Al Faqi should pay €97,000 for the damage to the buildings. The judges said this figure was based on calculations provided by court-appointed experts using the amount UNESCO paid to restore the damaged buildings.
“The Defense submits that, when considering reparations for repairing the Protected Buildings, the Chamber should take into account the fact that they have been restored. The Chamber is unconvinced and considers the fact that the protected buildings have been restored by UNESCO and others to have no impact on whether Mr. Al Mahdi is liable for damage caused. Remedial efforts by a third party in the time elapsed between the destruction and the issuance of the reparations order do not alter the amount of damage originally done,” the chamber said.
Separately, the judges also ordered a symbolic payment of €1 to the government of Mali and another symbolic €1 payment to UNESCO.
“The Chamber finds it appropriate to acknowledge the suffering endured by the Malian community and the international community as a whole as a result of the destruction of the Protected Buildings, all but one of which were UNESCO World Heritage Sites,” the chamber said.
The chamber also ordered Al Faqi to pay €2.12 million for the economic losses suffered by the community in Timbuktu as a direct consequence of the destruction of the buildings. The judges stated that it was difficult to estimate the economic losses suffered but the chamber concluded that the calculations provided by the court-appointed experts of approximately €4 million were on the higher side.
The chamber ordered Al Faqi to pay €483,000 for moral harm.
“The Chamber also received a variety of other information describing the emotional distress and harm suffered across the Timbuktu community. In particular, the Protected Buildings were widely perceived in Timbuktu as being the protectors of the community from outside harm. The attack on the Protected Buildings not only destroyed cherished monuments, but also shattered the community’s collective faith that they were protected,” the chamber said.
“The Chamber is satisfied that Mr. Al Mahdi’s crime is both the actual and proximate cause of this moral harm. It is reasonably foreseeable that attacking cultural property integral to the community in Timbuktu would cause these kinds of distress,” the chamber said.
The chamber observed that some of the submissions it received questioned whether the apology Al Faqi gave in court on August 22, 2016 was sufficient, and proposed he make a further apology. The chamber declined the request. Instead, as a symbolic gesture, the judges ordered the registry to produce a video with the excerpt of Al Faqi’s apology in court, together with transcripts of that apology, in languages spoken in Timbuktu. The chamber said these should be posted on the court’s website, and if a victim wished to have a copy of that apology, the registry should make it available to them upon request.
The chamber also asked the Trust Fund for Victims to explore ways of complementing the reparations award and to assist the wider group of victims in Mali.
The chamber set February 16, 2018 as the deadline for the Trust Fund for Victims to draw up an implementation plan for the reparations. It also gave the defense and the legal representative of the victims 30 days to send their observations on the draft implementation plan once they receive notification of it.
The August 17 reparations order follows general submissions made by legal representative for victims Kassongo, the prosecution, and the defense in December. The chamber also allowed several organizations to make submissions as friends of the court: Fédération internationale des ligues des droits de l’Homme and its member organization, Association malienne des droits de l’Homme; Redress Trust and Queen’s University Belfast’s Human Rights Centre; and UNESCO. The ICC Trust Fund for Victims also made a general submission to the court.
In making its reparation order, the chamber also took into account reports from four court-appointed experts. Public, redacted versions of the reports can be viewed here and here. Once the experts submitted their reports, the chamber received further submissions on reparations from the Trust Fund for Victims and Kassongo.