It is undoubtedly challenging to deny any court’s political character, particularly the ICC. However, it is necessary to understand in what sense this institution can be defined as political and whether the ICC’s political character necessarily affects its impartiality and, therefore, its legitimacy.

The Al Mahdi case is significant in this respect;9 this case was the first and, for the time being, only conviction by the ICC for the war crime of:

[I]ntentionally directing attacks against buildings 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.10

Analyzing this trial can help fill with meaning an adjective, political, with multiple declinations.

Through the Al Mahdi case, this comment explains how the ICC acts as a political actor while not compromising its judicial character. In Part II, I focus on the political dimension of the courts. In Part III, I provide an overview of the Al Mahdi trial, focusing on the relevant normative framework, the facts of the case, the procedural history, and its significance. In Part IV, I provide an overview of the criticisms directed at the ICC concerning that case and then attempt to respond. In Part V, I focus on the Ntaganda case,11 where, at least on the surface, the ICC has disavowed itself by changing the approach taken in the Al Mahdi case. In Part VI, I conclude that the political dimension of the Al Mahdi trial is compatible with its jurisdictional nature and, consequently, the political component of the ICC does not undermine its legitimacy.

II. Courts as Political Institutions

The ICC’s conception laid its foundation in legalistic ideology, which, to use Shklar’s words, “is the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules.”12

According to the legalist school, “politics is regarded not only as something apart from law, but as inferior to law. Law aims at justice, while politics look only to expediency. The former is neutral and objective, the latter the uncontrolled child of competing interests and ideologies.”13

The position outlined above is based on a reductive notion of politics, a vague concept with multiple meanings. Therefore, it is appropriate to clarify what the term politics means.

Conceiving the adjective political as linked to the interests of one party is incompatible with a judicial body, invalidating the necessary thirdness of the same.14 However, the term political derives from the Greek polis,15 which means city, and alludes to the society; it is clear how, from this point of view, jurisdictional activity cannot be exempt from political considerations, understood as about the collective.16 In this regard, the interpretation of the law cannot be entirely aseptic, forcing the judge to make choices related to a specific legal thought.17

In a sense, every court has a political component, which is certainly more pronounced in the case of international criminal justice. Emblematic is the case of the Nuremberg trial, where the two great losers of World War II, Nazism and Fascism, were on trial; the trial thus becomes the physical and ideal site of a clash between different ideologies and, particularly in the case of the Nuremberg trial, between good and evil.18 In this respect, the process can be political as an instrument of revenge against the enemy at the outcome of an armed conflict, a kind of “victor’s justice.”19 This conception is related to Carl Schmitt’s definition of politics as “the act of distinguishing between friends and enemies.”20 Precisely within this distinction lies the universal vocation of the International Criminal Court, clearly expressed in the Rome Statute, namely, the mission to prosecute the “most serious crimes of concern to the international community.”21 The ICC’s complex purpose is therefore to identify the perpetrators of such crimes and thus ensure that they do not go unpunished, pointing them out as a threat to all humanity; it is clear, therefore, that such activity requires the identification of the boundary separating good from evil, enemies from friends, and this distinction is inevitably political.22

What accentuates the ICC’s political connotation are two aspects; first, unlike the Nuremberg and Tokyo Tribunals, which were the scene of trials of the defeated of World War II, the ICC exercises its jurisdiction over wars that are still in progress, being able to act as an instrument to determine the defeat of one of the actors in the confrontation.23 Second, since the ICC’s mission is to act against the enemies of humanity, those who do not cooperate with it become, as a result, enemies of humanity; the ICC leverages this clear distinction between good and evil to incentivize cooperation with it, which is necessary to achieve its goals.24

While it is, therefore, difficult to separate judicial activity from political activity, declined in the meanings outlined above, the question that arises is this: can the political character of the courts be reconciled with the necessary impartiality of their decisions, thus not going to undermine the legitimacy of these institutions? Kirchheimer, a student of Schmitt, argued that a political trial allows for the elimination of enemies within an arena that follows predetermined rules and, precisely this aspect, not only makes the political battle compatible with the legal character of the instrument used but, in a sense, provides it with a kind of legitimacy.25

Based on the assumption that the ICC necessarily has a political component, connoted by the mission enshrined in its own Statute, the reconstruction of the Al Mahdi case provides practical insight into how this component affects the ICC’s activity and, more generally, its legitimacy.

III. The Al Mahdi Case

A. The International Legal Framework Related to the Crimes Against Cultural Heritage

The first international recognition of the importance of protecting cultural heritage occurred in 1935 with the signing of the Roerich Pact.26 The treaty, signed by twenty-one states but ratified by only nine (the United States plus other Central and South American states) and consisting of only eight articles, recognized for the first time that “the treasures of culture be respected and protected in time of war and in peace.”27 The definition of such property deserving special protection was vague, referring to the “historic monuments, museums, scientific, artistic, educational and cultural institutions.”28

The Roerich Pact was still a primordial instrument that nevertheless anticipated the more extensive protection offered by the Conventions adopted by UNESCO, the first of which was in 1954.29 That Convention, in providing a far more nuanced definition than the Roerich Pact gave to the “treasures of culture,”30 introduced the concept of “cultural property,”31 specifically including “monuments of architecture, art or history, whether religious or secular.”32

The instrument’s lack of effectiveness was inherent in the fact that it was left to the states parties to determine how to “prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property”33 without providing further guidance, especially in relation to the prosecution of those who offend the cultural property.34

The second international instrument promoted by UNESCO is the 1970 UNESCO Convention.35 Like its predecessor, the 1970 UNESCO Convention deferred to the member states the task of imposing “penalties or administrative sanctions on any person responsible for infringing.”36

It is also worth mentioning the third tool, the Convention Concerning the Protection of the World Cultural and Natural Heritage37 which, unlike the other two Conventions, does not address the issue of criminal protection of cultural heritage.

A significant further step is the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY),38 which includes, among the crimes under the jurisdiction of the ICTY, the “seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science.”39 It is precisely the case law of the ICTY that has significantly contributed to promoting the criminal protection of cultural heritage and has served as a guide for the ICC.

Finally, the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict,40 adopted in 1999, aimed to address the shortcomings of the 1954 Hague Convention.41 Specifically, the Second Protocol includes criminally relevant conduct such as the “extensive destruction or appropriation of cultural property protected under the Convention and this Protocol.”42

These international instruments provide a basis for the destruction of cultural heritage being included within the crimes covered by the Rome Statute.43

B. Crimes Committed by Al Mahdi and Related Context

In January 2012, a civil war broke out in Mali that pitted Malian security forces against an alliance formed by three Islamist groups, Ansar Dine, belonging to Salafist Islam, the Movement for Oneness and Jihad in West Africa and Al-Qai’ida in the Lands of the Islamic Maghreb, as well as the separatist group known as the National Movement for the Liberation of Azawad (MNLA). The interests of the latter group, driven by the desire to create a secular and independent state in the northern part of Mali, known as Azawad, diverged from those of the Islamist groups, whose intent was to impose Sharia throughout Malian territory; this circumstance soon led to the breakup of the partnership.44

In April 2012, militant groups occupied the regions of Kidal, Gao, and Timbuktu, imposing strict Islamic law; music, smoking, alcohol, and any other symbols of Western culture were banned; women were forced to cover themselves in full; violation of the rules was punished with amputations, floggings, and public executions.45

Within this context, in 2012, Ahmad al-Faqi al Mahdi (al Mahdi), then the head of Hisbah, a moralizing brigade within Ansar Dine, was tasked with preventing and suppressing any behavior by the local population that might represent a vice.46 Carrying out this task, al Mahdi led the destruction of several buildings and historical monuments symbolic of the Sufi current of Islam in Timbuktu, particularly nine mausoleums and the Sidi Yahia mosque.47 Of the latter, the attack destroyed the sacred door, known as the secret door of Sidi Yahia; this sacred door is pregnant with meaning in that, symbolically, it offers protection to several mausoleums located in the courtyard in front and, according to one belief, the opening or destruction of the door would bring misfortune to Timbuktu.48

The affected buildings belonged to the cultural heritage of the city and Mali more generally, and did not represent military targets; instead, they were targeted by the group because of their religious value.49 People in the area have always venerated these buildings, which are dedicated to holy figures. This ritual belongs to the Sufi current, which the Ansar Dine considers to be an execrable act since Salafis are against the worship of holy figures, who are historical figures sanctified by popular reverence and, therefore, cannot be worshipped in the same way as God.50

C. Procedural History

In July 2012, Mali, a state party to the Rome Statute, reported the situation to the ICC,51 thus setting the stage for the ICC to exercise jurisdiction.52 In particular, Mali drew attention to the grave human rights violations committed in the northern part of the country, pointing out, among others, the destruction of mosques and mausoleums.53

As a result of this referral, the Prosecutor’s office initiated an investigation54 focused on war crimes committed since January 2012 in the northern regions of Gao, Kidal, and Timbuktu. Among the crimes that emerged during the investigation, the Prosecutor mentioned:

1. murder constituting war crime under Article 8(2)(c)(i);

2. the passing of sentences and the carrying out of executions without due process constituting war crime under Article 8(2)(c)(iv);

3. mutilation, cruel treatment and torture constituting war crimes under Article 8(2)(c)(i);

4. intentionally directing attacks against protected objects constituting war crimes under Article 8(2)(e)(iv);

5. pillaging constituting war crime under Article 8(2)(e)(v); and

6. rape constituting war crimes under Article 8(2)(e)(vi).55

In July 2012, the Security Council stressed that “attacks against buildings dedicated to religion or historic monuments can constitute violations of international law which may fall under Additional Protocol II to the 1949 Geneva Conventions and the Rome Statute of the International Criminal Court.”56

On September 18, 2015, the Pre-Trial Chamber issued an arrest warrant for Al Mahdi, which was executed following his surrender by the Niger Authorities on September 26, 2015.57

The Pre-Trial Chamber considered the evidence presented by the Prosecutor, applying the less demanding evidentiary standard required for the preliminary stage of the proceedings.58 Therefore, the Pre-Trial Chamber noted that, in light of the evidence provided, the indictment plan presented by the Prosecutor was adequately robust to proceed against Al Mahdi; in particular, there was sufficient evidence regarding the existence of a non-international armed conflict, which began in January 2012 and persisted at the time of the commission of the acts alleged against Al Mahdi.59 The evidence provided, moreover, confirmed both the religious and historical value of the buildings under attack, thus ruling out the possibility that they were military targets. The attack was also aimed explicitly at these buildings precisely because of their religious value and took place in the context of a conflict in the area.60 Finally, the evidence presented confirmed Al Mahdi’s role in the attack; the latter, as head of Hisbah, determined the manner of actions in the execution of an order received from above, fully aware of the cultural and historical value of the buildings identified as targets of the operation.61

At the beginning of the trial, held between August 22 and 24, 2016, Al Mahdi formalized his guilty plea,62 confirming the statements made to the Prosecutor at the first interview. In consideration of this, the parties reached an agreement to expedite the proceedings.63

The Trial Chamber clarified that the conduct referred to in Article 8(2)(e)(iv) of the Rome Statute “encompasses any acts of violence against protected objects,”64 without “distinction as to whether it was carried out in the conduct of hostilities or after the object had fallen under the control of an armed group.”65

In light of all the evidence gathered as well as the seriousness of the crime, the Trial Chamber sentenced the defendant to nine years, a sentence determined given the absence of aggravating circumstances and the existence, instead, of five mitigating circumstances, specifically:

1. Mr Al Mahdi’s admission of guilt;

2. his cooperation with the Prosecution;

3. the remorse and the empathy he expressed for the victims;

4. his initial reluctance to commit the crime and the steps he took to limit the damage caused; and

5. even if of limited importance, his good behaviour in detention despite his family situation.66

D. The Significance of the Al Mahdi Case

The Al Mahdi case represented many firsts.

It was the first case pending before the ICC in which the accused took responsibility for the crimes charged.67 The ICC interpreted the relevant provision of the Rome Statute68 as a “ ‘third avenue’ between the traditional common law and civil law approaches,”69 in that it adds, to the guilty plea proper to common law systems, the requirement that the plea needs to be supported by the facts and the evidence, thus approaching the abbreviated procedure typical of civil law systems.70 It is possible that herein lies the reason why the ICC, the first time it found itself applying this rule, avoided sentencing in the absence of a hearing despite the rule’s silence about this necessity.71 Negotiated justice, of which plea bargaining is one possible form, defers the settlement of the trial to the parties, thus being ill-suited to the context of an international criminal trial. Such a trial aims not only at determining guilt and imposing a penalty but also at fulfilling a moral function. Therefore, the holding of a hearing and the fundamental role played by judges give the trial the necessary legitimacy.72

The Al Mahdi case also represented the first trial of a member of an Islamic fundamentalist group before the ICC73 as well as, even more relevantly, the first conviction for the destruction of historical and religious monuments.74 As we have seen above, the interpretation provided by the ICC in this regard represented a fundamental breakthrough for the protection of property of cultural and religious interest, ensuring its protection not only during attacks carried out in the course of hostilities but, more generally, in the context of those hostilities. The importance of this breakthrough is also inherent in considering the risks of a restrictive interpretation of the rule in question, which would leave objects of cultural and religious value unprotected and the perpetrators of the relevant attacks unpunished, where perpetrated after the active phase of the fighting.75 The groundbreaking significance of this decision gains more relevance when considering the importance of this precedent for the prosecution of similar crimes committed in other parts of the world; the crimes committed in Mali do not represent isolated cases as extremist groups in different theaters of war also adopt the destruction of a people’s cultural heritage as a means of erasing it.76 Before the Al Mahdi case, however, there was a lack of incisive tools for prosecuting such criminal acts, and this ruling represented the decisive step in elevating the protection of cultural heritage to jus cogens.77

The Al Mahdi case is also relevant given Mali’s and Niger’s cooperation with the ICC; this circumstance is not insignificant in that it may be a valid argument for changing the perception of the ICC as an institution that pounces on African states and, for this reason, is little appreciated by them.78

IV. Criticism Generated by Al Mahdi’s Conviction and Possible Responses

The overview provided so far would make one think of the Al Mahdi case as the perfect opportunity to promote the ICC’s image as an efficient and effective institution appreciated by the states. Things are not seen exactly in those terms, however, as, again, negative judgments were not long in coming. Therefore, it seems appropriate to examine the various contentions made to the ICC concerning the Al Mahdi case and, subsequently, attempt to respond to them.

A. Critical Positions

One of the criticisms addressed to the ICC regarding the Al Mahdi case concerns the fact that the Ansar Dine member was tried only for the crime of destruction of cultural heritage and not for the other horrific crimes committed by him and his associates; in particular, allegations of gender-based violence, including rape, gang rape, torture, and sexual slavery, perpetrated in Timbuktu between 2012 and 2013, were made against the militants. These allegations were based on testimony given by victims, taken before the High Court in Bamako, and then shared with the ICC.79 The criticism directed at the ICC is that it was satisfied with charging Al Mahdi for the crime of destroying mosques, which was easy to ascertain given the extensive availability of video evidence, without delving into the other more serious crimes committed in the city with further investigation.80

Furthermore, according to Schabas, Al Mahdi was even convicted of a crime he never committed;81 this thesis is based on the analysis of the crime charged against the Ansar Dine member.82 The first problem would be related to the interpretation of the term “attacks”83 since, considering its common meaning, this word is ill-suited to the destruction of buildings carried out using tools quite different from those usually employed in military contexts.84 Moreover, in view of the derivation of Article 8(2)(e)(iv) of the Rome Statute from various international treaties governing the law of armed conflict, the same should be interpreted in light of Art. 49(1) of the Additional Protocol which speaks of “attacks” as “acts of violence against the adversary, whether in offence or in defense;”85 this would be confirmed not only by the position expressed by other international courts, as well as by doctrine, but by the ICC Office of the Prosecutor itself, which, in the report prepared regarding the Gaza flotilla raid, showed that it believed that “ Article 8 should be interpreted with reference to international humanitarian law in general.”86 Moreover, a broad interpretation of Rome Statute Article 887 would be incompatible with its Article 22(2),88 which states: “the definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.”89

Another element highlighted by Schabas is that of the necessary link between the acts committed and the armed conflict; even allowing for a broad interpretation of the term “attacks,”90 the link between the actions of Al Mahdi and the ongoing conflict in Mali would be missing in this case.91 From this point of view, records available to the court ruled out the conduct of military operations in Timbuktu, which, moreover, was firmly under the militants’ control at that time.92

This criticism is not isolated; in fact, some argue that the ICC’s interpretation of the Al Mahdi case is not in accordance with international humanitarian law.93

Another issue under discussion is related to the two requisites of a case’s admissibility before the ICC; gravity94 and complementarity.95

Concerning the question of gravity, some of the critical positions raised doubts regarding the extent of Al Mahdi’s responsibility in the crimes charged against him, in which other members of Islamist groups had also participated; according to one reconstruction, Al Mahdi had been tried out of pragmatism, given the unavailability of the other leaders of various extremist groups, the question of whether Al Mahdi was the major perpetrator of the crimes committed therefore not being answered.96 Other doubts have been raised about the appropriateness of prosecuting Al Mahdi’s actions just under Article 8(2)(e)(iv), outside of a broader indictment plan that included far more serious crimes, thus not reaching the necessary threshold of seriousness.97

The other issue, as anticipated, relates to the principle of complementarity. This critical position starts from the circumstance that Al Mahdi was already in the hands of the Niger Authorities on terrorism charges when the ICC issued the arrest warrant; the ICC then proceeded to request Al Mahdi’s transfer, without questioning whether the Niger Authorities were able and willing to prosecute Al Mahdi.98

B. The Issue Related to the Interpretation of Article 8(2)(e)(iv)

The criticism that poses the most problems regarding Al Mahdi’s conviction is related to the interpretation of the term “attacks;”99 the different meanings attributable to this term affect the presence of the elements necessary to integrate the crime.

It is appropriate to proceed step by step to assess this criticism’s merits, starting with Article 9,100 which refers to the Elements of Crimes101 as a supporting tool for interpreting. Reading that document provides the following indications regarding the war crime under Art. 8(2)(e)(iv):

1. The perpetrator directed an attack.

2. The object of the attack was one or more buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives.

3. [T]he perpetrator intended such building or buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives, to be the object of the attack.

4. The conduct took place in the context of and was associated with an armed conflict not of an international character.

5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.102

At first glance, it appears that Al Mahdi’s conviction met the various requirements, as explained by the ICC itself in the argumentative part of the judgment.

The central knot to be unraveled, however, is the connecting element between the act of destruction and the armed conflict; in this regard, neither Article 8(2)(e)(iv) nor the Elements of Crimes provide a definitive answer.

Another article of the Rome Statute that may prove supportive in this regard is Article 21103 that outlines a kind of hierarchy in the sources of law available to the ICC, starting first with the Statute, Elements of Crimes, Rules of Procedure and Evidence;104 subordinately, “applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;”105 residually, “general principles of law derived by the Court from national laws of legal systems of the world […] provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.”106

Thus, given the Statute’s vagueness on the subject, international law, particularly the law of armed conflict, must be consulted.

Interesting from this point of view is the reconstruction provided in the opinion of the amicus curiae drafted for the appellate phase of the proceedings against Bosco Ntaganda,107 which outlines four reasons supporting an extension of the scope of the term “attacks,”108 the first of which refers precisely to established international law. In this regard, it is pointed out that the protection offered by international humanitarian law extends beyond the active hostilities phase of an armed conflict;109 the opinion cites the Additional Protocol II, whose Article 16 offers extended protection to cultural property, using a broad expression, namely that of “acts of hostility.”110

This interpretation is also supported by a reading of Article 8(2)(e)(iv) in relation to the drafting work of the Rome Statute, from which we learn that the rule in question also draws from Article 56 of the 1907 Hague regulations,111 which applies during occupation, thus at a stage after the active fighting.112

The third reason to support this argument is to consider the purposes of the Rome Statute, which include protecting cultural heritage.113 The importance given by the Rome Statute is evident from the Preamble where it is underlined that “all peoples are united by common bonds, their cultures pieced together in a shared heritage,”114 combined with the concern that “this delicate mosaic may be shattered at any time.”115

Finally, there is a need to avoid a gap in the protection of cultural heritage during the intermediate phase of the conflict, that “between the conclusion of the conduct of hostilities and the formal onset of occupation.”116

ICTY case law provides further elucidation in this regard concerning what constitutes an armed conflict, clarifying that:

[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved.117

The above picture seems to represent well what the context in northern Mali was at the time; that the situation in Timbuktu was indeed still evolving, as there was no established control of the territory by Ansar Dine and armed violence was still ongoing, is confirmed by sources; first, in June 2012, the two forces that had achieved control of northern Mali, the MNLA rebels and the Islamists of Ansar Dine, clashed, ending their alliance; at the same time, moreover, the Patriots’ Resistance Movement for the Liberation of Timbuktu was being formed in Timbuktu to counter the activities of the groups mentioned above.118

Furthermore, that the destruction of Timbuktu’s cultural heritage was directly linked to the ongoing conflict seems a circumstance that can hardly be disputed; in fact, religious and political reasons were driving Islamist groups to carry out such actions, which were part of the objective pursued by these groups in the area, namely, to introduce Sharia law and fight infidels.119

C. The Gravity Issue

As previously stated, doubts have also been expressed regarding the existence of the gravity requirement.

In one respect, Al Mahdi’s actual responsibilities in the context of the crimes charged would be uncertain, thus leaving open the issue of whether he was the most responsible for the crimes committed. Although it is appropriate for the ICC to focus on the most responsible actors, even given the limited resources available, the Rome Statute doesn’t impose this condition.120 In fact, Article 1 of the Rome Statute simply provides for the exercise of jurisdiction “over persons for the most serious crimes of international concern.”121 The other reference in this regard can be found in Article 53,122 which, with regard to investigations put in place by the Prosecutor, clarifies both the conditions necessary for the commencement of investigations and the closure of investigations; concerning the latter, the Prosecutor may exclude the existence of the conditions for proceeding when “a prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime.”123

The references offered by the Rome Statute in this regard are therefore quite limited.

In justifying the existence of the gravity requirement, the Trial Chamber preliminarily notes that crimes against property, such as the one charged against Al Mahdi, “are generally of lesser gravity than crimes against persons.”124 Nevertheless, in the present case, the crime committed by Al Mahdi was deemed to be of such gravity that it met the required threshold given the duration of the attack, which amounted to ten days, as well as the value of the affected buildings.125 The latter were not only important to the locals, on whom the affected buildings also exercised a “psychological role to the extent of being perceived as protecting the people of Timbuktu,”126 but also to the international community, since all but one of the affected buildings were recognized as UNESCO World Heritage sites.127

It should also not be overlooked that Al Mahdi himself recognized the seriousness of his actions precisely because of the value of the buildings affected by the attack.128

In this regard, interesting insights are offered by the case law of the ICTY, which on several occasions has emphasized that attacks on cultural property undermine not only the history of the affected area, but also the cultural heritage of humanity, due to the unique value of such property.129 Ultimately, the gravity should not be assessed by merely considering the crime itself, but by extending the analysis to its long-term effects.130 Precisely because of the high symbolic value of the buildings involved, the long-term consequences of the actions of Al Madhi and his accomplices are not in question.

D. The Complementarity Issue

Again, the criticism directed at the ICC regarding the lack of attention given to the issue of complementarity appears ill-founded.

First, while it is true that, at the time of the transfer to The Hague, Al Mahdi was being held by the Niger Authorities for the charge of conspiracy to commit terrorism,131 the charge on which the trial before the ICC was based was different, namely the war crime of destruction of cultural heritage.

In this regard, a case worth mentioning is the one concerning Thomas Lubanga Dyilo; when the ICC decided to prosecute the leader of the Union of Congolese Patriots, the latter was at the time being investigated by domestic judicial authorities for several crimes, concerning which, moreover, arrest warrants had been issued against him.132 The ICC pointed out how, to reach an assessment of inadmissibility, “national proceedings must encompass both the person and the conduct which is the subject of the case before the Court.”133 Therefore, the fact that the national Authorities were prosecuting Lubanga was not an obstacle to the admissibility of the case before the ICC because of the difference in the crimes charged against Lubanga.134

Furthermore, concerning Mali’s ability to try Al Mahdi, it should be noted that, at the time of the ICC’s intervention, there were no open proceedings against him in the country.135 The self-referral put in place by Mali, moreover, involved a kind of renunciation of complementarity; Mali recognized the ICC as the best forum to avoid impunity for the grave acts committed by extremist groups in the north of the country.136 The fierce civil war affecting the country as well as the critical issues inherent in the Malian justice system are clear indicators that domestic courts were ill-equipped to prosecute the crimes charged against Al Mahdi. Sources consulted in this regard point to corruption as well as limited resources as elements that undermine the possibility of fair trials in Mali.137

Moreover, a 2016 Position Paper reports that, since 2013, Malian authorities have released about 220 people arrested for crimes committed in the north of the country; charges include crimes against humanity, war crimes, and other serious human rights violations.138 These releases can be attributed, in part, to measures related to the Peace and Reconciliation agreement signed in Bamako in June 2015, as well as to a lack of will and resources on the part of Malian Authorities.139

V. The Apparent Contradictions Inside the ICC

In November 2019, the Trial Chamber sentenced Bosco Ntaganda, Deputy Chief of Staff of the Patriotic Forces for the Liberation of Congo, an armed rib of the Union of Congolese Patriots (UPC), to thirty years in prison; the charges against him related to war crimes and crimes against humanity committed in the context of the internal armed conflict that affected the Ituri region in eastern Democratic Republic of Congo (DRC) between 2002 and 2003.140 Ntaganda was found guilty of, among other crimes, rape, sexual slavery, and conscription of minors.141 The charges against Ntaganda included the destruction of a church, a war crime under Article 8(2)(e)(iv) of the Rome Statute.142 In the Ntaganda case, the Trial Chamber adopted a different interpretation of Article 8(2)(e)(iv), marking an essential distance from the position expressed by the ICC in the Al Mahdi case, arguing that the “crime of attacking protected objects belongs to the category of offences committed during the actual conduct of hostilities.”143

This decision was met with several criticisms, collected by the Prosecutor in her appeal brief; according to her reconstruction, the special meaning to be given to the term “attacks”144 finds confirmation in international law and in the context of the Rome Statute itself. That provision, in fact, “is intended to establish additional protection for certain objects under the Statute, including but not limited to cultural property and to hospitals […] it is necessary to ensure that this protection is meaningful in all relevant contexts.”145 In essence, the Prosecutor reiterated the need for such assets to enjoy protection from acts of violence carried out not only during hostilities but also when the same assets fall under the control of one of the parties to the conflict.

This issue was the subject of debate at the appeal stage, where the Chamber was divided on the interpretation of the article in question; a majority of the Chamber, except Judge Ibáñez Carranza, opted to uphold Bosco Ntaganda’s acquittal concerning the charge related to Article 8(2)(e)(iv).146 A careful reading of the opinions expressed by the judges allows the ruling to be read differently.

In her dissenting opinion, Justice Ibáñez Carranza explains her opposition to a restrictive interpretation of the word attack, which is incompatible with the purpose of Article 8(2)(e)(iv) and, more generally, the Rome Statute, which is to prevent acts of damage to cultural heritage from going unpunished.147 Justice Carranza also identifies the decisive aspect in the connection between such actions and hostilities,148 emphasizing how the term attack encapsulates “the preparation, the carrying out of combat action and the immediate aftermath thereof, including criminal acts committed during ratissage operations carried out in the aftermath of combat action.”149

Except for two other judges who agreed with the interpretation provided by the Trial Court, the other two members of the Chamber, while in favor of upholding Bosco Ntaganda’s acquittal concerning this charge, appear to differ from the conclusions drawn by the Trial Chamber regarding the interpretation of the term attack, instead adhering to the position outlined above.150

Indeed, Judge Balungi Bossa agreed with Judge Carranza on the need to interpret the Rome Statute in such a way as to avoid gaps of impunity,151 leaning toward a more expansive interpretation of the word attack.152 Similarly, Judge Eboe-Osuji pointed out that the attack sanctioned by the rule can take place “outside the course of active hostilities.”153 Both latter two judges, however, agreed that Bosco Ntaganda’s conduct fell under Article 8(2)(e)(xii), which is why they upheld the acquittal concerning to Article 8(2)(e)(iv).154

The ICC does not appear to have contradicted itself in that the majority of the Appeals Chamber actually endorsed the interpretation provided by the ICC in the Al Mahdi case.

VI. Conclusion

The image of the ICC as a purely judicial institution, divorced from any political dimension, in accordance with legalistic thinking, is advocated by its supporters, who are convinced that such a portrayal is the only one possible to promote the ICC and its legitimacy.155 In reality, such a conception of the ICC represents a mystification of reality.156

Every court has a political dimension, as explained above. The main issue then is not the political dimension of the trials but the consideration of the political values promoted and implicated in such trials.157 What then were the values involved in the trial of Al Mahdi? What message did the ICC want to send? It is plausible to assume that the ICC wanted to emphasize that acts of destruction of cultural heritage offend all of humanity, thus meriting its attention; in condemning Al Mahdi, the ICC also recognized the significance of the history of the people of Timbuktu.158 At the same time, the ICC addressed extremist groups guilty of such attacks, affirming the unacceptability of such conduct, which, before the Al Mahdi case, risked going unpunished.159

To do so, the ICC had to fill with meaning a word, “attacks,”160 generic and inclusive of multiple connotations; the ICC did so simply by making use of the tools at its disposal, the Statute, the Elements of Crimes, the case law of other courts, as well as the principles of international law.

Therefore, the Al Mahdi trial was political insofar as the ICC sent messages to the international community through it; at the same time, this trial retained its judicial character insofar as the ICC affirmed these values in the manner allowed for a court. In this way, the ICC acts as a political actor while maintaining its independence.

The problem, however, lies in a communication flaw; the ICC’s constant denial of its political component prevents it from explaining its political dimension in a way that might be compatible with its function. At the same time, the apparent afterthought in the Ntaganda case casts shadows on the Al Mahdi case; only a careful reading of the judgment allows one to understand how there was no step backward, at least by the majority of the Appeals Chamber.

Ultimately, only the recognition of its political dimension, the explanation of its meaning, and the consequent abandonment of rigid legalism can enable the ICC to improve its image and increase its authority.161

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

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11. 11.

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22. 22.

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23. 23.

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24. 24.

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25. 25.

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26. 26.

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27. 27.

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28. 28.

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29. 29.

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30. 30.

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31. 31.

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33. 33.

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34. 34.

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35. 35.

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36. 36.

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37. 37.

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38. 38.

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39. 39.

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40. 40.

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41. 41.

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42. 42.

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43. 43.

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54. 54.

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58. 58.

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59. 59.

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60. 60.

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61. 61.

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63. 63.

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64. 64.

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65. 65.

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66. 66.

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67. 67.

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68. 68.

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69. 69.

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70. 70.

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71. 71.

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72. 72.

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73. 73.

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74. 74.

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75. 75.

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76. 76.

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77. 77.

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78. 78.

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79. 79.

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80. 80.

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81. 81.

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83. 83.

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84. 84.

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86. 86.

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87. 87.

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88. 88.

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89. 89.

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90. 90.

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91. 91.

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92. 92.

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95. 95.

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96. 96.

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97. 97.

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98. 98.

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100. 100.

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103. 103.

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104. 104.

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114. 114.

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115. 115.

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116. 116.

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125. 125.

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141. 141.

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142. 142.

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143. 143.

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147. 147.

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148. 148.

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149. 149.

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150. 150.

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153. 153.

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157. 157.

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158. 158.

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159. 159.

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160. 160.

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161. 161.

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