International Criminal Court Case Study: The Prosecutor v. Ahmad Al Faqi Al Mahdi

PREFACE

I wrote this case study for my International Humanitarian Law class. Since in my University, International Criminal Law is not a separate course, it is considered as part of the topics discussed in the syllabus for International Humanitarian Law. For this assignment, I was instructed to write a case study on a case ruled by the International Criminal Court with the primary focus being on the application of International Humanitarian Law, the legal issues, and how the International Criminal Court exercised jurisdiction.

Like my other publications of assignments, I hope that it will help students studying International Humanitarian Law, International Criminal Law, and law students in general regarding this specific case and the application of both fields of international law. I also recognize that this assignment is not perfect and can be subject for further improvement. So I hope that those reading this will identify the shortcomings identified.

It goes without saying too… Do not complete this assignment by copy pasting this entire thing and submitting it as your own, or even ask ChatGPT to rephrase the whole thing! There are no shortcuts, do it yourself! Use this as reference only!

Needless to say, International Criminal Law is my favourite branch of International Law and I am happy to be sharing this assignment! Thank you very much and enjoy!

I. INTRODUCTION

International Criminal Law (“ICL”) is a branch of public international law which aims to prohibit the committing of serious crimes under international law and prosecuting those legally responsible. ICL was born after World War II where ad hoc tribunals, such as the Nuremberg and Tokyo tribunals were established, as one of the first steps to enforce ICL and later on the United Nations (“UN”) establishing tribunals for Rwanda and Yugoslavia. Nevertheless it was still hampered by issues concerning limited geographical jurisdiction, high costs, limited state participation, and the fact that the establishment of these tribunals depended on the political will of the international community. Consequently, some situations had the international community take action, while others did not.2 To overcome these limitations, in 1998 the UN General Assembly convened the Rome Conference to address the need for a permanent tribunal which resulted in the Rome Statute (“RS”) as the International Criminal Court’s (“ICC”) statute. On April 1, 2002, the RS acquired more than the requisite ratifications and went into effect on July 1, 2022, activating the ICC.

The ICC, formed to empower the international community to prosecute individuals violating ICL, International Humanitarian Law (“IHL”) and international human rights law (“IHRL”). It respects the principles of fair trial and holds all criminals accountable, regardless of their position, status, or whether the crimes were committed during war or peace, by intervening when governments are unable or unwilling to act. Articles 5, 6, 7, and 8 of the RS contains the four major crimes under the ICC’s jurisdiction namely genocide, war crimes, crimes of aggression, and crimes against humanity. Furthermore, the RS confers the ICC jurisdiction over crimes impacting cultural heritage, supplementing international law governing the protection of cultural heritage and property. The international community has long been concerned with the protection of cultural property, as evidenced by the Nuremberg Tribunal, the International Criminal Tribunal for the Former Yugoslavia (“ICTY”), and the Extraordinary Chambers in the Courts of Cambodia, all of which had specific provisions for crimes involving cultural property.

Since deliberate attacks towards cultural property have been a constant practice for centuries, continuing to contemporary conflicts, the ICC’s office of the prosecutor (“OTP”) acknowledged protection of cultural heritage as a crucial issue in accordance with international law. Modern international law confirms that a general consensus of purposefully destroying cultural heritage is wrong and can be considered a war crime entailing individual criminal responsibility unless there exists absolute military necessity. This is made clear in the ICC’s case of the Prosecutor v. Ahmad Al Faqi Al Mahdi (“Al Mahdi Case”) which concerns deliberate attacks on cultural sites in the World Heritage city of Timbuktu Mali where the ICC found Al Madhi guilty of war crimes for the deliberate destruction of cultural property in Timbuktu Mali, during the city’s 2012 military takeover as the first person to be found guilty of the destruction of cultural property. Thus, this essay will analyse further the Al Madhi Case covering the IHL enforcement, the legal issues raised, the ICC’s use of its power, and the author’s own viewpoint.

II. THE ENFORCEMENT OF INTERNATIONAL HUMANITARIAN LAW

Under IHL, the International Committee of the Red Cross provides that the protection of cultural property is enforced through the 1954 Hague Convention for the protection of cultural property during armed conflict, complemented by the 1977 Additional Protocols, and has crystallized as a part of customary international law. The 1954 Hague Convention provides that states are obligated to take conducts to ensure protection of cultural property against armed attacks by moving the property away from military action or by avoiding placing military objectives nearby, with the exception being when said property has become a military objective and such attack is needed due to military necessity. What falls under the scope of cultural property under IHL can be found in Article 1 a to c of the 1954 Hague Convention which is defined as the following. First, important cultural heritage items, whether movable or immovable, monuments, archaeological sites, historic buildings, artworks, manuscripts, books, and scientific or archival collections. Second, museums, major libraries, archives, and cultural property shelters during armed conflict fall under buildings with the function of preserving or displaying cultural items. Finally, centers with a high concentration of such cultural property are included too. Under ICL, the ICTY was the first to criminalize the destruction of cultural property, with prosecution falling under Article 3(d) of their statute, granting jurisdiction over violations of the laws of war such as the seizure, destruction, or willful damage to institutions dedicated to religion, charity, and education, the arts and sciences, historic monuments, and works of art and science. Pursuant to Article 8(2)(e)(iv) of the RS, unless they are military targets, intentional attacks on historical sites, hospitals, gathering places for the sick and injured, buildings devoted to religion, education, art, science, or charity, or other buildings are considered serious violations and is considered a war crime. This provision under the RS is exactly what Ahmad Al Faqi Al Mahdi (“Al Mahdi”) was being prosecuted for before the ICC.

III. THE LEGAL ISSUES RAISED IN THE CASE

In 2012, Mali was facing an armed conflict against the armed organization Ansar Dine which controlled a strong influence in the northwest region and managed to capture the city of Timbuktu in May 2012, where between June and July 2012 the organization carried out the destruction of Timbuktu’s historical sites with at least 10 historical religious buildings targeted. In 2015, after preliminary investigations by the ICC and the OTP, the ICC Pre-Trial Chamber I issued an arrest warrant for Al Mahdi charging him with war crimes for destroying historical and religious monuments in Timbuktu. The ICC assigned Trial Chamber VIII to adjudicate the case.

The chamber needed to prove that (1) Al Mahdi directed the attack; (2) with the object being one or more buildings dedicated to religious, educational, artistic, scientific, or charitable institutions, historic monuments, hospitals, and hospitals provided they are not military targets; (3) intended it to be the object of the attack; (4) the attack took place in an armed conflict not of an international character; and (5) the perpetrator was aware of the facts establishing the existence of an armed conflict. The chamber evaluated the crime and its elements for Article 8(2)(e)(iv) of the RS considering this was the ICC’s first case involving the destruction of cultural property. The chamber also relied on the Geneva Conventions including Additional Protocols I and II as well as the 1954 Hague Convention which acknowledged protection of cultural property and jurisprudence from the ICC and ICTY. Al Mahdi in Ansar Dine was appointed to enforce morality in Timbuktu with the aim of suppressing “visible vices” and prohibiting “unlawful” religious practices. The mausoleums and mosques were significant for Timbuktu’s Population and protected under the 1972 UNESCO Convention. Nevertheless Al Mahdi between June 30 — July 11 2012 agreed to participate in the destruction by personally organizing the sequence of destruction and gave media interviews justifying the destruction. In the end, the ICC convicted Al Mahdi which included three prosecution witnesses and hundreds of documentary evidence items, eight victims participating in the trial, and Al Mahdi himself admitted guilt to the charge of intentionally directing attacks on religious and historical buildings.

IV. HOW THE ICC EXERCISED ITS JURISDICTION

By ratifying the RS, a state confirms the ICC’s authority over the crimes contained in their jurisdiction. If the accused is a citizen of a State Party or the conduct occurred on State Party property, the Court may take action. Non-state parties may also recognize the ICC’s jurisdiction. These standards, however, do not apply when a case is reported by the UN Security Council under Chapter VII of the UN Charter. The government of Mali referred the situation in Timbuktu to the ICC and after preliminary examination the OTP opened an investigation in 2013 and in 2015, Al Mahdi’s arrest warrant was issued charging him with war crimes for destroying cultural property and eventually Al Mahdi was arrested in Niger by French troops where he was sent to The Hague to face trial before the ICC.

V. PERSONAL COMMENTARY

The Prosecutor v. Ahmad Al Faqi Al Mahdi is the first case of the ICC to prosecute crimes of destroying cultural property. This writer believes that cultural property and culture is an important aspect of humanity and its destruction ipso facto destroys humanity itself. Culture represents the diversity of humanity and its beauty, even Al Mahdi regretted his decision highlighting the importance of culture. The fact that Al Mahdi was prosecuted and was sentenced is a testament to the willpower of the international community in their respect for cultural identity. Future cases involving cultural property should continue to be prosecuted and the international community should make a commitment to protecting one of the most important parts of humanity.

VI. REFERENCES

Fajri Matahati Muhammadin and Kay Jessica, Recent Developments in International Criminal Law, (Yogyakarta: Fakultas Hukum, Universitas Gadjah Mada, 2022) pg. 1

Philippe Kirsch, “The Role of the International Criminal Court in Enforcing International Criminal Law,” American University International Law Review, Vol. 22, №4 (2007) pg. 540

Christiane E. Phillip, “The International Criminal Court — A Brief Introduction,” Max Planck Yearbook of United Nations Law, Vol. 7, №1 (2003) pg. 331

Charles B.A. Ubah and Osy E. Nwebo, “The International Criminal Court: Antecedents, History, and Prospects,” International Journal for Innovation Education and Research, Vol. 3, №9 (2015) pg. 42

The Office of the Prosecutor, Policy on Cultural Heritage, (The Hague: The International Criminal Court, 2021), pg. 4

Amy Stricker and Joseph Powderly, Heritage Destruction, Human Rights and International Law, (Leiden: Brill, 2023) pg. 1

International Committee of the Red Cross, “Cultural Property,” available at https://www.icrc.org/en/law-and-policy/cultural-property, accessed on 25 May 2025.

Ayesha Jawad and Maira Bokhari, “Measuring the Protection of Cultural Property Under International Humanitarian Laws; Analysis of Russia-Ukraine Conflict,” Journal of Law & Social Studies, Vol. 4 №3 pg. 471

Simona Pinton, “The ICC Judgement in Al Mahdi: Heritage Communities and The ICC Judgement in Al Mahdi: Heritage Communities and Restorative Justice in the International Criminal Protection of Restorative Justice in the International Criminal Protection of Cultural Heritage,” Vol. 19 №1 (2020) pg. 384.

Mark. S Ellis, “The ICC’s Role in Combatting The Destruction of Cultural Heritage,” Case Western Reserve Journal of International Law, Vol. 49 №1 (2017) pg. 39–40.

Nugih Wahyudi, et al. “The Role of the International Court in Cases of Attacks on Historical Objects during Armed Conflicts (Al-Mahdi Case),” Jurmayustisi: Jurnal Mahasiswa Yustisi Vol. 1, №1 (2022) pg. 48

Prosecutor v. Ahmad Al Faqi Al Mahdi, Judgment and Sentence, Trial Chamber VIII, 27 September 2016, ICC-01/12–01/15, para. 13

The International Criminal Court, Helping build a more just world: Understanding the International Criminal Court, (The Hague: The International Criminal Court, 2020), pg. 11

Nugih Wahyudi, et al. “The Role of the International Court in Cases of Attacks on Historical Objects during Armed Conflicts (Al-Mahdi Case)…, pg. 48

Mark A. Drumbl, “From Timbuktu to The Hague and Beyond: The War Crime of Intentionally Attacking Cultural Property,” Journal of International Criminal Justice