Religion – Weltanschauung – Recht [ RWR ]

Today, 17 August 2017, Trial Chamber VIII of the International Criminal Court issued a Reparations Order in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi, concluding that Mr Al Mahdi is liable for € 2.7 mio. in expenses for individual and collective reparations for the community of Timbuktu for intentionally directing attacks against religious and historic buildings in that city. Noting that Mr Al Mahdi is indigent, the Chamber encourages the Trust Funds for Victims („TFV“) to complement the reparations award and directed the TFV to submit a draft implementation plan for 16 February 2018.

The Chamber considered the observations of the ICC Prosecutor, the Defence, the Legal representatives of Victims („LRV“) representing the 139 reparations applicants, the TFV, the ICC Registry, four appointed experts and amici curiae, including UNESCO. The Chamber recalled the reparations principles established by the ICC Appeals Chamber’s decision in the Lubanga case, including the non-discrimination principle. Trial Chamber VIII also stressed that reparations in the present case are designed – to the extent achievable – to relieve the suffering caused by the serious crime committed and enable victims to recover their dignity and deter future violations. Reparations may assist in promoting reconciliation between the victims of the crime, the affected communities and the convicted person.

The Chamber highlighted the importance of cultural heritage and stressed that, because of their purpose and symbolism, most cultural property and cultural heritage are unique and of sentimental value. Their destruction thus carries a message of terror and helplessness; destroys part of humanity’s shared memory and collective consciousness, and renders humanity unable to transmit its values and knowledge to future generations.

The Chamber ordered reparations for three categories of harm: damage to the attacked historic and religious buildings, consequential economic loss, and moral harm. Reparations are to be collective for rehabilitation of the sites and for the community of Timbuktu as a whole to address the financial loss and economic harm as well as the emotional distress suffered as a result of the attack. It may also include symbolic measures – such as a memorial, commemoration or forgiveness ceremony – to give public recognition of the moral harm suffered by the Timbuktu community and those within it.

The Chamber also ordered individual reparations for those whose livelihoods exclusively depended upon the attacked buildings and those whose ancestors‘ burial sites were damaged in the attack. The limited number of individual reparations ordered should be prioritised during the implementation.

The Chamber has already concluded that it considered Mr Al Mahdi’s apology to be genuine, categorical and empathetic. As a symbolic measure to ensure that victims have access to Mr Al Mahdi’s apology, the Chamber orders the Registry to produce an excerpt of the video of Mr Al Mahdi’s apology and post it on the Court’s website.

In addition, the Chamber ordered one symbolic euro to be received by the Malian State and UNESCO given the specific nature of the case.

The Chamber assessed Mr Al Mahdi’s liability for these reparations at € 2.7 mio. Noting Mr Al Mahdi’s indigence, the Chamber encourages the TFV’s to complement any individual or collective reparations to the extent possible. The Chamber set a deadline for 16 February 2018 for the TFV’s draft implementation plan including the objectives, outcomes and necessary activities. The LRV and Defence may file any observations on the draft implementation plan within 30 days of its notification. Upon subsequent approval by the Chamber, the TFV will then identify projects and discrete implementation partners for the Chamber’s final approval.

Background: On 27 September 2016, Trial Chamber VIII, composed of Judge Raul C. Pangalangan (Presiding), Judge Antoine Kesia-Mbe Mindua and Judge Bertram Schmitt, unanimously found Mr Al Mahdi guilty beyond reasonable doubt as a co-perpetrator of the war crime consisting in intentionally directing attacks against religious and historic buildings in Timbuktu, Mali, in June and July 2012. The Chamber sentenced Mr Al Mahdi to nine years‘ imprisonment. The time he has spent in detention since his arrest upon the ICC warrant issued on 18 September 2015 will be deducted from the sentence.

Press Release ICC, 17 August 2017