The Al-Mahdi Reparations Order at the ICC: A Step towards Justice for Victims of Crimes against Cultural Heritage

[Alina Balta is a PhD Researcher at Tilburg Law School, INTERVICT. Nadia Banteka is an Assistant Professor in International Law & Victimology at Tilburg Law School, INTERVICT. This blogpost is a product of the Intervict Reparations Initiative, commissioned by the NWO-VIDI Project, A Waste of Time or No Time to Waste.]

On August 17, 2017, the International Criminal Court (ICC) handed down its Order on Reparations in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi.  Al Mahdi was previously sentenced to nine years’ imprisonment, following a Trial Chamber’s decision on September 27, 2016.  He was convicted as a co-perpetrator for the war crime of attacking protected objects under articles 8(2)(e)(iv) and 25(3)(a) of the Rome Statute. The protected objects include ten buildings of religious and historical character, nine of which are UNESCO World Heritage sites in Timbuktu, Mali. The Court’s Order on Reparations marks the first time the ICC has awarded reparations for victims of crimes against cultural heritage.

The decision marks the first time the ICC has awarded reparations for victims of crimes against cultural heritage. This decision is also notable in its intended scope: the Court aimed to address all types of harm suffered by the victims through its awards of individual, collective, and symbolic reparations. The order assessed the economic and moral harm suffered by the victims and acknowledged the mental pain and anguish that the victimized communities experienced (para. 89). The decision thus demonstrates respect for the culture of the victims, and by providing reparations, the Court created precedent for protecting the spiritual and religious connection between the victimized communities and protected buildings.

Interestingly, the Al-Mahdi decision is the first time the Court urged the TFV to prioritize individual reparations over collective ones in implementing the award (para. 140).  While the Court recognized the TFV’s general position to prioritize collective reparations, it expressed its strong view that the extent of harm inflicted on certain individuals called for prioritizing individual reparations instead.  Through this approach, the order aims to acknowledge the individual victimization of those it has singled out for individual reparations. However, we believe that collective reparations are equally important in this case.  Collective reparations acknowledge the communal harm, bring the victims together, and set out to reconstruct the community’s sense of wholeness.  In its Judgement in the Al-Mahdi case, the Court found that the perpetrator destroyed the cultural heritage of the people of Timbuktu, Mali, and to an extent, the world (para. 56), with the intent to “break the soul” of the people of Timbuktu by attacking their religious and historical identity (para. 80).  Taking into account the nature of victimization, both modalities of reparations should carry the same urgency of implementation here.

The decision is also the first order on reparations that includes guarantees of non-repetition. The open-ended letter of article 75(2) of the Rome Statute offers judges discretion in putting forward different reparations measures. The ICC has given this article a wide margin of interpretation on what measures may form part of reparations. For example, this happened in the form of symbolic measures of satisfaction, such as a perpetrator’s apology, offered by Lubanga and Katanga in the cases against them, and now Al Mahdi’s. (para. 70)  The guarantees of non-repetition in the Al-Mahdi order represent a novel exercise of this discretion.

Guarantees of non-repetition traditionally aim to prevent the reoccurrence of crimes by addressing the institutional roots and structural causes of the violations involved.  That is why we often encounter this measure in cases concerning human rights violations and crimes committed by states that require systemic changes to ensure such atrocities are not repeated.  Often, they result in institutional or legislative reforms, vetting and training of public sector personnel, educational plans that address past struggles constructively, and development programs. The measure itself forms part of the Basic Principles on Reparations, as well as the Impunity Principles and, if implemented strategically, can no doubt have a rather far-reaching effect given the state’s capacity and willingness to implement it.

The Al-Mahdi case presents an intriguing application of guarantees of non-repetition as it concerns the non-repetition of war crimes against cultural heritage.   It will be interesting to see how the Trust Fund for Victims (TVF) responds to the challenge of framing specific reparation measures that can materialize in such non-repetition guarantees in this case.  Though in largely different contexts, the Inter-American Court of Human Rights has used guarantees of non-repetition extensively as part of its reparations judgments and may offer some useful paradigms for implementation.  As the recent reparations order provides, these measures are to be taken to the extent possible and following consultations with the government authorities in Mali (para. 67).  They could include setting into place mechanisms or protection measures facilitated by the Malian government to guarantee the non-recurrence of similar threats against cultural heritage. UNESCO has already undertaken emergency action in Mali by providing cultural heritage protection trainings to UN personnel but also to the Malian armed forces.  An increase and strategic implementation of similar measures can contribute to the goals of instilling a sense of safety to the already traumatized victims and achieving sustainable justice.

At the same time, the Court returned to concept of “deterrence” that it had employed in the Lubanga order, even though it had chosen to depart from this language entirely in the Katanga decision.  More specifically, the Court in Lubanga had suggested that the “wide publication of the decision may also serve to […] help deter crimes of this kind” (para. 238).  However, the Court in the Al-Mahdi case made a conceptual alteration: it spoke of “reparations being designed” – to the extent achievable – to “deter future violations” (para. 28).  While the wide publication of a conviction decision, such as that in Lubanga, may reasonably be expected to achieve some level of general deterrence, we find it more difficult to understand the logic behind reparations having a deterrent effect.  The underlying idea of reparations is that they respond, to the extent possible, to the suffering caused by the crimes, by alleviating some of the harm and doing justice for the victims.  Reparations have been loosely connected in the past, such as in the context of the Holocaust, with the goal of deterring future leaders from similar criminal policies by pledging to repudiate the past and rebuild the constitutional order.  However, in the Al-Mahdi case it is difficult to envision how the reparations order would achieve a deterrent effect in and of itself given the nature of the offenders and crimes involved.

But perhaps more pressingly, seeing reparations as a means to deter future violations runs the risk of assuming an economic perspective on reparations for crimes within the ICC jurisdiction.  In international criminal justice, reparations are largely understood as having a proportional relationship with the victims’ harm: the means to repair the harm determines the nature of the reparations.  A cost-benefit analysis of reparations would shift the focus—instead, we would ask what level of punishment through reparations would be sufficient to deter future wrongdoers.  This level may be completely unrelated to the victims’ harm suffered.  We do not contend that this is what the Court intended to do in this reparations order.  Rather, our goal is to draw attention to the potential risks that the malleable concept of reparations in these proceedings carries.  Admittedly, reparation measures in the form of guarantees of non-repetition may incorporate an element of deterrence based on past conduct (e.g. Case of Myrna Mack Chang v. Guatemala (25-11-2003) (Series C No. 101)) but this connection was not made clear in the current reparations order.

Finally, it is important to keep in mind that, although the Court assessed Al Mahdi’s individual liability for reparations to 2.7 million Euro, this measure has only symbolic and moral value.  While the financial circumstances of the convicted person should not have any impact on the reparations award or its enforcement (para 114), Al-Mahdi’s indigent status means that the burden of financing potential reparation measures will fall on the already strained budged of the TFV, which is tasked with drafting an implementation plan.  In the implementation process, it is essential that the TFV first consult with affected communities to take into account all local conditions in proposing concrete implementation measures. Doing so will be all the more challenging as the security situation in Mali remains worrying and uncertain despite progress.

In all, the ICC’s reparations order in Al-Mahdi’s case is a step forward for international justice through reparations. The Court confirmed some of the foundational elements of reparations it first laid out in Lubanga and Katanga and went on to set an important precedent for crimes against cultural heritage.  Perhaps in the next reparations orders, we will witness more instructive language regarding the concept of deterrence through reparations, and further consideration of both collective and individual harms in determining the circumstances in which prioritization of reparations modalities is desirable.