In a recent decision by the ICC’s Pre-Trial Chamber I on March 24, 2016, the Court confirmed charges for war crimes for intentionally directing attacks against religious and cultural buildings under Art. 8(2)(e)(iv) in the case of the Prosecutor v. Ahmad Al Faqi Al Mahdi. The defendant is alleged to have committed war crimes in Timbuktu, Mali, between around June 30, 2012 through around July 11, 2012. Already in a press release dated September 26, 2015, the ICC Prosecutor Fatou Bensouda stated that that
Intentional attacks against historic monuments and buildings dedicated to religion are grave crimes. […] No longer should such reprehensible conduct go unpunished. […] Such attacks affect humanity as a whole. We must stand up to the destruction and defacing of our common heritage.
The ICC’s Rome Statute Article 8(2)(e)(iv) defines war crimes as
(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely any of the following acts: (iv) Intentionally directing attacks against building dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; […].
The Pre-Trial Chamber I found sufficient evidence to establish substantial grounds to believe that Ahmad Al Faqi Al Mahdi committed the crimes with which he is charged and reasoned, in paragraphs 40-44 of its decision on confirmation of charges, that it is not disputed that the targeted buildings/structures were “dedicated to religion and constituted historic monuments because of their origins and significance, and that none of them constituted a military objective” and that these buildings were “specifically identified, chosen, and targeted by the perpetrators as objects of their attack, precisely in light and because of their religious and historical character.” The Court further reasoned that the article’s prohibition “attaches to the attack per se” regardless of whether the building/structure was or was not destroyed and concluded that the “attacks” within the meaning of the statute also include acts “which did not bring about a complete destruction” of the targeted building or structure.
This reasoning is a step in the right direction when a Court of international stature recognizes the importance of cultural, historical, religious, and national heritage as embodied in buildings and structures and articulates that even a partial destruction will not go unpunished. The Court appears to focus on the reasons that the objects were targeted for their religious and historical importance within the surrounding society, the fact that they did not constitute military objectives, and that their destruction (even partial) was considered very serious by the local populations rather than the level or the intended level of destruction. As such, it would reason that even vandalizing, defacing, or otherwise damaging a building or structure might fall within the statute according to the Court’s interpretation of Art. 8(2)(e)(iv).
- Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15, Situation in the Republic of Mali.
- Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15, Decision on the Confirmation of Charges Against Ahmad Al Faqi Al Mahdi (Mar. 24, 2016).