Original Decision

As per the established facts of the 2016 Al Mahdi judgment and sentence,Footnote ¹⁷ Al Mahdi had been a member of Ansar Dine since April 2012. During their occupation of northern Mali, Ansar Dine and AQIM established a local government, which included an Islamic tribunal and a morality brigade called Hesbah, tasked with preventing and supressing all things considered vices by the government. Al Mahdi headed up the morality brigade between April 2012 and September 2012 and was also involved in consulting for the Islamic tribunal, due to being recognised as a religious expert.Footnote ¹⁸

The mausoleums and mosques held great religious importance for the people of Timbuktu. Especially the mausoleums, which were frequently visited to perform prayers, with some people considering them places of pilgrimage.

In his role as a religious expert and head of Hesbah, Al Mahdi, together with other Islamic jurists, unanimously opined that constructions over tombs were prohibited.Footnote ¹⁹ On this basis, at the end of June 2012, the leader of Ansar Dine instructed him as head of Hesbah to destroy the mausoleums. Even though Al Mahdi harboured initial reservations about this order, based on not wanting to upset relations between the occupiers and the local population, he, together with other individuals, executed the attacks between 30 June 2012 and 11 July 2012. Overall, he was involved in the destruction of ten of the most important sites in Timbuktu dedicated to religion and historic monuments, nine of which were considered UNESCO World Heritage sites. In his role, he organised the attacks and sourced the required equipment, which he distributed to brigade members during the relevant attacks.Footnote ²⁰ He was personally present during the destruction of each site and supervised and directed perpetrators. He was actively involved in the destruction of a minimum of five sites.Footnote ²¹

Reimagined Decision

In her reimagined decision, Judge Mahomed Ismail points out that the original 2016 judgment and sentence in the Al Mahdi case is largely free of reference to the relationship between women and the destroyed cultural property. She therefore reimagines the decision by analysing the significance of the mausoleums in Timbuktu to women, and how women have been impacted by their destruction.

Firstly, the rewritten decision differs significantly from the original as it provides in-depth contextualisation of the importance of the impacted mausoleums and mosques, by highlighting how they form an integral part of the religious lives of the local community.

Secondly, Judge Mahomed Ismail identifies a mismatch between the seemingly gender-neutral war crime of intentionally directing attacks against buildings,Footnote ²² which is traditionally interpreted to relate only to tangible objects, and the ‘realities of cultural heritage and its destruction, which is that when tangible cultural heritage is destroyed, there is often a corresponding destruction of intangible cultural heritage’.Footnote ²³ The judge defines intangible cultural heritage in line with the Report of the Special Rapporteur in the field of cultural rights as ‘traditions, customs and practices, aesthetic and spiritual beliefs, vernacular or other languages, artistic expressions and folklore’.Footnote ²⁴ The reimagined decision highlights that ‘women, in particular, are central to the maintenance and vitality of cultural heritage worldwide and that this is often through women’s roles in relation to intangible heritage’.Footnote ²⁵ Consequently, Judge Mahomed Ismail points out that they would have liked to consider whether the intangible cultural heritage of Mali ‘is so intertwined with the mausoleums and mosques that it should be considered as falling within the definition’ of a war crime.Footnote ²⁶ Judge Mahomed Ismail concludes, however, that they are currently prevented from broadening said definition due to the provision’s clear wording. Subsequently, the judge calls upon state parties ‘to consider the need to expand the current understanding of cultural heritage to better ensure that decisions, sentences, and reparations are commensurate with the entirety of cultural loss, not merely that which is “tangible”’.Footnote ²⁷

In the rewritten sentencing considerations, the question of the gravity of the crime is addressed. The decision highlights the particular importance of mausoleums for women, noting that a woman ‘might seek solace or pray at a mausoleum if she cannot have children’.Footnote ²⁸ Further, in the context of the gravity of the crime, Judge Mahomed Ismail highlights that an example of intangible heritage in this context is the plastering of the mosque, also referred to as crépissage, which must occur annually to preserve the buildings. Especially women and elderly persons are tasked with preparing the clay balls on the ground level which are then passed up to males to attach to the sides of the mosque.

Critical Reflection

Judge Mahomed Ismail’s reimagined decision takes the opportunity to highlight how traditional judicial interpretations of seemingly gender-neutral war crimes can exclude the lived experiences of women from ICC decisions. By shining a light on the relationship between women and the destroyed cultural property, especially in relation to intangible property, She convincingly demonstrates that women’s lived experiences are not always appropriately reflected in traditional interpretations of war crimes. Continuing to rely on a narrow interpretation and application of the law, which in this case focuses on tangible objects only, may mean missing opportunities for gender-sensitive judging at the ICC.

Her statement that would have liked to interpret cultural heritage in a more gender-sensitive way than is currently permitted by law emphasises the shortfalls of the current definition of cultural heritage in relation to the special circumstances of women. What would be required to overcome this issue and allow for more holistic assessments would be the broadening of the current conventional narrow definition of cultural property.

Despite being unable to move beyond this restriction rooted in current law, the judge calls upon state parties to create change regarding this situation, thus providing a clear example of what makes this judgment feminist.

Original Decision

In the original sentencing decision, the Court found that retribution and deterrence are the primary objectives of punishment at the ICC.Footnote ²⁹ To determine the relevant sentence, the Chamber subsequently considered the gravity of the crime, Al Mahdi’s culpable conduct, and his individual circumstances.Footnote ³⁰ The Chamber noted that while ‘crimes against property are generally of lesser gravity than crimes against persons’,Footnote ³¹ the damage Al Mahdi caused made the crime significant in this case based on the following: ten sites (nine of which were UNESCO heritage sites) were completely destroyed, the attacks were carefully planned, and their impact on the population was intensified due to media reporting.Footnote ³² The Court did not find aggravating circumstances and saw mitigating circumstances in the fact that Al Mahdi was initially reluctant to destroy the respective sites and did not recommend using a bulldozer for their destruction.Footnote ³³ Furthermore, he admitted his guilt,Footnote ³⁴ cooperated with the prosecution,Footnote ³⁵ expressed remorse and empathy for the victims,Footnote ³⁶ and displayed good behaviour in detention.Footnote ³⁷ On this basis, the Court sentenced Al Mahdi to nine years’ imprisonment.

Reimagined Decision

In the rewritten sentencing decision, Judge McKay identifies a third purpose of sentencing, being the rehabilitation of the convicted person and their reintegration into society. This stands in contrast to the original decision, which considers retribution and deterrence as the primary objectives of punishment at the ICC. This third purpose is informed by restorative and transformative justice concepts, which focus on the offender taking responsibility for their actions as well as the provision of restitution to victims.

In the rewritten decision, Judge McKay, through treaty interpretation, clarifies that Article 77 provides the Court with discretion as to what type of penalty it can apply, and that penalties are not limited to custodial sentences. This marks a departure from traditional interpretations of Article 77, which seem to suggest that the ICC penalties regime does not allow for non-custodial sentences.Footnote ³⁸ In support of this wider interpretation, however, Judge McKay draws on the Tokyo Rules, an international instrument designed to ‘promote greater community involvement in the management of criminal justice’,Footnote ³⁹ in support of non-custodial sentences at the ICC. After providing an overview of domestic legal traditions and the imposition of ‘alternative’ sentences, the rewritten sentencing decision concludes that imposing alternative sentences is in accordance with the Rome Statute and that the Chamber has the authority to consider whether an alternative sentence is appropriate in this case.

Judge McKay outlines the respective mitigating circumstances, namely: (1) admission of guilt; (2) cooperation with prosecution; (3) remorse and empathy expressed to the victims; (4) initial reluctance to commit the crimes; and (5) good behaviour in detention, then departs from the original decision by also focusing on Al Mahdi’s rehabilitative potential and capacity for him to give back to the harmed community.

Consequently, the sentence imposed in the rewritten judgment does not exclusively rely on incarceration, as the original decision does, but sentences Al Mahdi to seven years of custodial imprisonment along with 3,765 hours of community service in the Trust Fund for Victims (TFV), UNESCO, or, pending Court and community approval, another similar organisations focused on culturally relevant and appropriate activities. Judge McKay points out that while the focus of this community service must be ‘on rebuilding what Mr Al Mahdi helped destroy’, the work undertaken in the context of the community service may also focus more broadly ‘on building respect for religious diversity’.

Critical Reflection

Judge McKay finds a gap in the interpretation of sentencing objectives at the ICC which traditionally do not focus on rehabilitation. The conventional narrow interpretation of the purpose of sentencing excludes the possibility for offenders to make amends with victims and communities in the context of international criminal law. The rewritten decision seeks to close this gap by making the case for imposing non-carceral sentences at the ICC, thus calling into existence a new sentencing pathway. Such a novel approach requires not only an offender who is willing to undertake community service but also a harmed community which is willing to accept the service provided by the offender. While the formal structure of sentencing decisions limits the reimagined decision in commenting on this tension in depth, the decision does touch on balancing potentially competing interests by ordering the community service to be undertaken at the same time as the imprisonment. Consequently, the offender will not perform community service directly in the impacted community but serve it in the TFV or similar. Imposing non-carceral sentences at the ICC, although not without opposition, has the potential to positively impact both victims and offenders in future and marks a departure from the traditional focus on punishment in sentencing.

Through the rewrite of the Al Mahdi sentencing decision, Judge McKay builds on ideas from the feminist abolitionist movement. The rewritten decision emphasises the need to move away from the traditional, punitive interpretation of sentencing objectives and towards integrating rehabilitative approaches within sentencing at the ICC, if making amends with harmed communities and individual victims is to be taken seriously. That traditional punishment and mass incarceration does not necessarily have the potential to prevent crime against womenFootnote ⁴⁰ has long been noted in the national context by the anti-carceral feminist movement.Footnote ⁴¹ This movement challenges traditional punitive criminal responses to gendered violence, instead pointing to alternatives such as transformative and restorative justice.Footnote ⁴² Through the reimagined decision, Judge McKay ultimately advances these national reflections to the sentencing level at the ICC. Yet, and while acknowledging its structural constraints, the reimagined decision could have taken this further by emphasising the link to a greater extent, thereby strengthening the decision’s feminist approach.

Original Decision

In its 2017 Public Reparations Order decision in the Al Mahdi case, Trial Chamber VIII highlighted the importance of international cultural heritage,Footnote ⁴³ noting that the attacks on protected buildings in this case had ‘not only destroyed and damaged the physical structures’,Footnote ⁴⁴ but heavily impacted the identity of the local population. The decision identified that the reparations in the case at hand were designed ‘to relieve the suffering caused by the serious crime committed, address the consequences of the wrongful act committed by Mr Al Mahdi, enable victims to recover their dignity and deter future violations’. The Chamber concluded that reparations could also assist in ‘promoting reconciliation between the victims of the crime, the affected communities and the convicted persons’.Footnote ⁴⁵ The order defined cultural heritage in line with its importance to the local community, here the people of Timbuktu, as well as its importance to humanity in general.Footnote ⁴⁶

The Chamber ordered reparations for three kinds of harm. Firstly, it noted that for the damage caused to the protected buildings, the reparations should be ‘aimed at rehabilitating the Protected Sites with effective measures to guarantee non-repetition of the attacks directed against them’.Footnote ⁴⁷ The liability was set at €97,000.Footnote ⁴⁸ Secondly, for consequential economic loss from the attacks, it ordered individual reparations, in the form of compensation, to address the losses suffered by those ‘whose livelihoods exclusively depended upon the Protected Buildings’. This included, for example, businesses selling holy sand from the respective sites.Footnote ⁴⁹ Moreover, as consequential economic losses also existed for the community of Timbuktu as a whole, the Chamber ordered collective reparations in the form of rehabilitation to address the economic harm to the community. The liability was set at €2.12 million.Footnote ⁵⁰ Thirdly, the Chamber ordered individual reparations to compensate for the moral harm suffered by those whose ancestors’ grave sites had been damaged by the attacks. In addition, it ordered collective reparations for the disruption of the culture of the Timbuktu community and the causing of mental pain and anguish, in the form of ‘collective rehabilitation to address the emotional distress suffered as a result of the attack on the Protected Building’.Footnote ⁵¹ The liability was set at €438,000.Footnote ⁵²

Reimagined Decision

In their rewritten reparations order, Judges Graham and Jones argue that the original Trial Chamber’s findings as to which victims could receive individual damages for economic loss discriminated against women. On this basis, the judges reimagine the decision by incorporating a feminist perspective.

In contrast to the original reparations order, the rewritten order refers to traditional gender roles when contemplating the impact of economic harm. It highlights that women’s economic links to mausoleums are more likely indirect as they are only allowed inside once they reach a certain age. In the rewritten order, Judges Graham and Jones caution that in order to avoid entrenchment of discrimination, there should not be a distinction between direct and indirect economic losses in relation to the destruction of the protected buildings. Rather, the focus should be on the extent to which victims were impacted by their destruction.

In the original reparations order, the Chamber did not consider Al Mahdi’s crime as the proximate cause of property loss incurred when victims fled Timbuktu in the aftermath of the attacks.Footnote ⁵³ In stark contrast, however, the rewritten decision does recognise economic losses suffered in this context. It highlights that this loss should be included in the reparations to ensure that particularly women and children are not negatively affected by an otherwise exclusive focus on the economic losses of business owners.

Comparable to the original decision, in the rewritten reparations order the judges award collective reparations for the community of Timbuktu as a whole. However, departing from the original, the rewritten order suggests, inter alia, that collective reparations could include programmes or actions designed to assist women, youth, and others towards generating income, as well as initiatives which promote the training of women and ‘fostering discussions of the issue of non-discrimination in access to cultural heritage sites as a means of guaranteeing non-repetition of the abuses in this case’.Footnote ⁵⁴

The original decision simply ordered that Al Mahdi make necessary individual reparations for the mental pain and anguish of those whose ancestors were buried in the mausoleums damaged in the attacks.Footnote ⁵⁵ Applying a feminist perspective to this aspect, Judges Graham and Jones in the rewritten order identify that male victims are more readily able to establish this connection due to the patrilineal method of family record keeping. As a consequence, the judges emphasise the importance of recognising ‘female-based lines of ancestry’, in the context of identifying groups which have a ‘strong emotional connection to the destroyed sites’, and orders individual reparations for ‘those with a stronger emotional connection to the destroyed sites than the rest of the Timbuktu population’.Footnote ⁵⁶

Based on the above, the rewritten decision expands the award of individual reparations for consequential economic losses from only those ‘whose livelihoods exclusively depended upon the Protected Buildings’,Footnote ⁵⁷ to also include those ‘whose livelihoods were significantly affected by their destruction’ and ‘those who otherwise suffered significant personal economic loss as a consequence of their destruction, such as the loss of their homes as a result of displacement’. The Chamber concludes that this is warranted as ‘their loss relative to the rest of the community is more acute and exceptional’.

The reimagined order also goes beyond the original in the context of implementation, noting that ‘women’s views are ordinarily only heard in certain conditions, such as “when they are old and considered wise”’, thus cautioning that care must be taken to ensure that women are included in the process of developing a reparation scheme and as victims wishing to access the scheme. The Chamber remarks that this is particularly the case as the wife is subordinate in the ‘Malian traditional family structure’ and that women may therefore struggle to access the reparation schemes. The Chamber thus calls upon the TFV to introduce a process designed to allow women to increase their recognition and involvement in the development of a reparations scheme.

Critical Reflection

Judges Graham and Jones identify parts of the original decision in which the Chamber failed to consider traditional gender roles. The original decision interprets economic harm extremely narrowly. The economic losses of business owners, who are more likely to be male than female, with women having more indirect economic links to the mausoleums, are considered economic harm. Yet the original Chamber refused to recognise the loss of personal property, including, for example, household items of persons fleeing Timbuktu, as consequential economic loss. The narrowness of the interpretation has the potential to negatively impact women and children as the loss of household items, livestock, and store wares will primarily impact females, who, in the traditional Malian family setting, are largely responsible for domestic tasks. By applying a feminist lens, Judges Graham and Jones demonstrate how the original decision discriminates against women by failing to consider their unique circumstances and the existence of power relationships.

In addition, the narrow definition of eligible victims qualifying for reparations for moral harm as only those persons whose ancestors had been buried in the destroyed mausoleums largely excludes women unable to prove this connection due to traditional record keeping. The judges clearly demonstrate that reliance on narrow interpretations, which fail to consider notions of privilege, discrimination, and gender roles, more likely exclude women from reparations schemes and hinder them from recuperating their losses. Judges Graham and Jones plausibly outline how the law could have been applied to avoid disadvantaging women and sketch convincing avenues of how women can be included to a greater extent in the process of developing and carrying out reparation schemes.

The rewritten order highlights the importance for ICC judicial decisions to be more mindful of traditional gender roles and how these roles may impact a particular situation.

Original Decision

Pre-Trial Chamber I decided on the Prosecutor’s Application for the Issuance of a Warrant of Arrest for Al Hassan on 27 March 2018. It provided the analysis of the evidence and other information submitted by the Prosecutor separately on 22 May 2018.Footnote ⁵⁸ The Pre-Trial Chamber’s decision to issue a warrant for the arrest of Al Hassan is based on the following considerations.

Firstly, Al Hassan was a member of Ansar Dine and de facto chief of the Islamic police, playing a significant role and providing essential contributions between May 2012 and January 2013 in northern Mali. He was also involved in the work of the Islamic tribunal in Timbuktu and participated in executing its decisions. As part of his role, he participated in the destruction of mausoleums through the Islamic police.Footnote ⁵⁹

In its decision, the Pre-Trial Chamber found that there were reasonable grounds to believe that Al Hassan, as a co-perpetrator, had committed crimes against humanity against civilians as per Article 7 and war crimes according to Article 8.Footnote ⁶⁰ The Chamber noted that evidence submitted by the Prosecutor inter alia included videos showing public whippings ordered by the Islamic tribunal, some of which were carried out by Islamic police and Hesbah.Footnote ⁶¹ The evidence particularly showed that women ‘were insulted, beaten and whipped relentlessly, sometimes until they bled, at the market and in their homes, for reasons such as that they were not sufficiently covered’.Footnote ⁶²

Reimagined Decision

In their reimagined decision, Judges Zarmsky and Irving depart from the original decision concerning the issuance of a warrant of arrest for Al Hassan by providing additional remarks on the use of video evidence and its evidentiary value before the Court. The first part of the additional remarks is concerned with the importance of the use of video evidence in the context of offences pertaining to violence against women, while the second part focuses on what impact crime recordings posted on internet platforms can have on victims.

After pointing out that the application by the Prosecutor in this case contains more than seventy mentions of the term ‘video’ in relation to various submissions, Judges Zarmsky and Irving note the increasing significance of video evidence in front of the ICC. This includes the Al Mahdi case, where video evidence was introduced at trial showing the accused destroying, and participating in the destruction of, protected buildings. The judges identify that video evidence appears to be traditionally used for crimes occurring in public spaces, such as the destruction of protected buildings in the Al Mahdi case, as opposed to crimes frequently occurring in private settings, including sexual and gender-based violence. The judges therefore note ‘with satisfaction’ that the use of video evidence in the Al Hassan case departs from this traditional approach as it is also used to support arguments relating to violence against women and girls. The judges call for an end to considering video evidence unsuitable in these cases and suggest that its value in establishing sexual and gender-based violence crimes should not be overlooked.

Judges Zarmsky and Irving then turn to the posting of recorded crimes on the internet by perpetrators and others and contemplate the question of additional harm arising from this conduct. They conclude that the posting should be considered as an aggravating circumstance in the context of assessing the gravity of the crime in relation to the threshold that a case must meet to be admissible before the ICC. In the case at hand, Ansar Dine publicly posted videos of crimes on the internet, including executions and whippings. The judges argue that this conduct increases the gravity of the crime as victims are likely to experience additional harm through posts about their ordeal on internet platforms, which greatly widens the audience of their suffering. The harm may also be more severe in this case as unsuspecting relatives may come across the videos on the internet, thus leading to additional suffering. The sharing of videos via the internet, which is difficult to end, and which may continue for decades, may particularly impact female victims. The Chamber points out that stigma continues to be associated with certain offences which women frequently experience. Therefore, women may be haunted by these videos shared on the internet for the rest of their lives. With reference to domestic trials in which the posting of war crime videos on the internet was found to be a war crime itself, the Chamber leaves open the possibility for similar findings in future at the ICC under Article 8.

Critical Reflection

Judges Zarmsky and Irving offer unique insights into the importance of not overlooking the value of video evidence for establishing sexual and gender-based violence crimes as appears to have been standard practice at the ICC in the past. In addition, they apply a feminist lens when contemplating the consequences for victims of posted video recordings of crimes. It may not be legally plausible that judges at the ICC provide ‘additional remarks’ on issues they consider particularly important. Nevertheless, Judges Zarmsky and Irving’s rewritten decision generally highlights the scope for gender-sensitive analysis when using digital evidence at the ICC.

The rewritten decision begins where the original decision ends. It reflects on the importance of video technology and what it means, especially for women, to have war crimes against them broadcast on the internet. The narrow and traditional use of video evidence in practice means that it is frequently considered unsuitable in cases concerning sexual and gender-based violence and is not relied upon. In addition, the rewritten decision calls attention to the fact that the posting of videos can have particularly severe and long-lasting consequences for female victims as stigma remains for certain offences frequently committed against women and girls. Yet the ICC has not given due consideration to this aspect in past decisions – in the context of the gravity threshold a case must meet to be admissible before the ICC or in considering the posting of respective videos as a war crime itself. Changing the above approaches may increase the use of video evidence in proceedings concerned with domestic and sexual violence offences, possibly increasing conviction rates. It may also lead to a more appropriate reflection in ICC judgments of the suffering and stigma women can experience when crimes against them are broadcast on the internet.

After considering the original and reimagined decisions and pondering what makes them feminist, the below reflects on what would be needed to achieve more gender-just outcomes in ICC cases.

Crime Charged

1. 11. The war crime of attacking protected objects under Article 8(2)(e)(iv) of the Statute punishes the following act: ‘Intentionally 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.’

2. 12. This is the charge to which the defendant has admitted guilt.

3. 13. In order to prove the crime charged, the prosecution must show that:

   1. 1. The perpetrator directed an attack.

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

   5. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.Footnote ⁷¹ …

4. 19. The conventional understanding of cultural heritage is that it is made up of both tangible and intangible aspects. Nonetheless Article 8(2)(e)(iv) reflects the twentieth-century understanding of culture as solely constituting tangible objects. For example, Article 1 of the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict defines ‘cultural property’ as ‘a) movable or immovable property of great importance to the cultural heritage of every people … b) buildings whose main and effective purpose is to preserve the movable or cultural property … c) centers containing a large amount of cultural property’. This ‘tangible objects’ approach continued in the 1972 Convention Concerning the Protection of World Cultural and Natural Heritage, where ‘cultural heritage’ was defined in Article 1 as being confined to ‘monuments’, ‘groups of buildings’, and ‘sites’.

5. 20. On the other hand, intangible cultural heritage is made up of ‘traditions, customs and practices, aesthetic and spiritual beliefs, vernacular or other languages, artistic expressions and folklore’.Footnote ⁷²

6. 21. Intangible cultural heritage is defined in Article 2 of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage as ‘the practices, representations, expressions, knowledge, skills … that communities, groups and, in some cases, individuals recognize as part of their cultural heritage’. Article 2 notes that intangible cultural heritage ‘is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity’.

7. 22. Further, the Preamble to that Convention considers ‘the importance of the intangible cultural heritage as a mainspring of cultural diversity’ and ‘the deep-seated interdependence between the intangible cultural heritage and the tangible cultural and natural heritage’ (emphasis added). It also recognises ‘that communities … play an important role in the production, safeguarding, maintenance and re-creation of the intangible cultural heritage, thus helping to enrich cultural diversity and human creativity’.

8. 23. Earlier this year, the Special Rapporteur in the field of cultural rights reported that both tangible and intangible cultural heritage ‘should be understood in broad and holistic terms’.Footnote ⁷³ The Special Rapporteur’s report pointed out that there is a significant overlap between tangible and intangible heritage, and that attacks on each are interconnected.Footnote ⁷⁴

9. 24. Article 8(2)(e)(iv) of the Statute is therefore in conflict with the realities of cultural heritage and its destruction, which is that when tangible cultural heritage is destroyed, there is often a corresponding destruction of intangible cultural heritage. In fact, some say that tangible and intangible cultural heritage are two sides of the same coin.Footnote ⁷⁵

10. 25. The Chamber also recognises that women, in particular, are central to the maintenance and vitality of cultural heritage worldwide and that this is often through women’s roles in relation to intangible heritage.Footnote ⁷⁶

11. 26. Here, the Chamber would have liked to consider whether the intangible cultural heritage of Mali is so intertwined with the mausoleums and mosques that it should be considered as falling within the definition of Article 8(2)(e)(iv). However, the Chamber is currently unable to do so due to the clear wording of Article 8(2)(e)(iv).

12. 27. The Chamber therefore urges state parties to the Statute to consider the need to expand the current understanding of cultural heritage to better ensure that decisions, sentences, and reparations are commensurable to the entirety of cultural loss, not merely that which is ‘tangible’. This would allow the Court to consider the destruction of cultural property from a holistic perspective. …

Article 65 of the Statute …

1. 30. As this is the first time Article 65 has been applied at this Court, the Chamber will briefly address some relevant matters relating to this provision. …

2. 37. Pursuant to Articles 64(8)(a) and 65 of the Statute, an accused may make an admission of guilt at the commencement of the trial. However, Article 65 requires the Chamber to conclude that the admission is ‘supported by the facts of the case’, such that the admission of guilt must be considered ‘together with any additional evidence presented’.Footnote ⁷⁷

3. 38. The Chamber acknowledges the Separate Opinion of Judge Péter Kovács,Footnote ⁷⁸ in particular Judge Kovács’ concern that Pre-Trial Chamber I’s majority opinion ‘gives the impression that it rests on mere assumptions due to the lack of support from the evidence presented to the Chamber’. It is unlikely that Judge Kovács’ concerns would have been valid if Mr Al Mahdi had pleaded not guilty.

4. 39. While this Chamber does not arrive at the same conclusion as Judge Kovács, it concedes that plea negotiations might necessarily confine the issues and truncate the court process. However, the process by which the prosecution and defence make oral submissions by way of evidence, from the bar table, may not foster an environment such that the Chamber can deliver a decision that presents a ‘full account of the relevant facts and law in order to reveal the transparency of the judicial process and guarantee a considerable degree of persuasiveness’.Footnote ⁷⁹ This is notwithstanding the fact that the Chamber can access freely all evidence relevant to the case without the requirement that evidence must be tendered through a witness.Footnote ⁸⁰

5. 40. Furthermore, the Chamber acknowledges that victim participation can be lost when the prosecution and defence enter into plea negotiations rather than the case proceeding to a contested trial. This means that the Chamber cannot be certain that it has heard from a diverse range of witnesses, in particular marginalised categories of victims.

6. 41. Lastly, the Chamber acknowledges the view that international criminal courts establish ‘an accurate and publicly accessible historical record’.Footnote ⁸¹ The convenience of an admission of guilt must weigh against this, and other factors.

Context

1. 45. Mali has a diverse cultural heritage,Footnote ⁸² and Timbuktu is at the centre of this. The residents of Timbuktu are diverse,Footnote ⁸³ and Islam is the common denominator that brings together the city’s residents.Footnote ⁸⁴

2. 46. Timbuktu played an important role in the early dissemination of Islam, and became a centre of training and education in the West African region due to the existence of scholars, universities, and the city’s status as a centre of trade.Footnote ⁸⁵ Most of these scholars became saints.Footnote ⁸⁶ Timbuktu is also known as ‘the City of 333 Saints’.Footnote ⁸⁷

Decision to Attack the Mausoleums and Mosques …

The Attack and Mr Al Mahdi’s Responsibility

1. 54. The attack was carried out between 30 June 2012 and 11 July 2012.Footnote ¹⁰⁰ Mr Al Mahdi and other individuals adhering to the same common plan destroyed ten of the most well-known and important sites in Timbuktu.

2. 55. These sites were all dedicated to religion and historic monuments, and none were military objectives. Except for the Sheikh Mohamed Mahmoud Al Arwani Mausoleum, all of the buildings were protected UNESCO World Heritage Sites.Footnote ¹⁰¹ …

Gravity of the Crime

1. 88. Mr Al Mahdi has been charged with crimes against property. Although this may be considered of lesser gravity than crimes against persons,Footnote ¹⁰² this crime has ‘hit and harmed the people in question at all levels, intellectually, spiritually, and at the very core of their being’.Footnote ¹⁰³

2. 89. The legal representative for victims, Mr Mayombo Kassongo, provided valuable assistance to the Chamber in determining the gravity of the crime. He submitted that ‘heritage is not something frivolous or a luxury item, heritage is part of whom we are, it is an extension of ourselves … if heritage is destroyed we are like a traveller without any belongings, like beings without a soul, history or memory’.Footnote ¹⁰⁴

3. 90. The Chamber also accepts the Prosecutor’s assertion that ‘culture is who we are. Our ancestors created paintings, sculptures, mosques, temples and other forms of cultural possessions all around us. They put their hearts and souls into the creation of such cultural heritage so that it represents the cultural identity of their times and is passed on for the benefit of future generations’.Footnote ¹⁰⁵

4. 91. The impact of the destruction had a calamitous effect on the citizens of Timbuktu. During the destruction of the mausoleums, an inhabitant of Timbuktu cried out in desperation that ‘Timbuktu is about to lose its soul … Timbuktu has on its throat the sharp knife of coldblooded assassins’.Footnote ¹⁰⁶ Another inhabitant said, ‘[t]hey have destroyed everything we have’.Footnote ¹⁰⁷ The Minister of Culture of Mali called the destruction ‘an attack on the lifeblood of our souls, on the very quintessence of our cultural values. Their purpose was to destroy our past … our identity and, indeed, our dignity’.Footnote ¹⁰⁸

5. 92. It is clear that the mausoleums and mosques are important to the people of Mali and the international community. They are not merely walls and stones.Footnote ¹⁰⁹ At a national level, the mausoleums and mosques have important religious, cultural, and social significance.Footnote ¹¹⁰ At the international level, they stand as symbols of Timbuktu’s intellectual and spiritual past.Footnote ¹¹¹ In fact, the Chamber heard evidence that Timbuktu is considered to match the role that the city of Florence played in Renaissance Europe as a centre of intellectual and religious life and teaching.Footnote ¹¹² In that way, the mausoleums and mosques were the embodiment of Malian history in tangible form.Footnote ¹¹³

6. 93. In some Muslim countries such as Mali, mausoleums are used by the community when they find themselves in a position of weakness and an inability to find solutions to the problems themselves.Footnote ¹¹⁴ The community then looks to the saints, who are perceived to be close to God, and pleads with them.Footnote ¹¹⁵ For example, a woman might seek solace or pray at a mausoleum if she cannot have children.Footnote ¹¹⁶

7. 94. According to UNESCO Witness P-151, the population is extremely attached to both their tangible heritage, being the mosques and mausoleums, and intangible heritage.Footnote ¹¹⁷ One example of intangible heritage is crépissage, or the plastering of the mosque. Due to climatic events that erode the plastering, crépissage must be done annually to preserve the structures.Footnote ¹¹⁸ Witness P-151 testified that crépissage is a collective effort done by the population.Footnote ¹¹⁹ Women and the elderly prepare balls of clay at the bottom, which are passed up to the males hanging on the sides of the mosque.Footnote ¹²⁰

8. 95. The practice of crépissage is not merely technical. Rather, it corresponds with a ritual found in many African societies which aims to ward off bad luck and to ensure good rains.Footnote ¹²¹ This link is important; the belief that blessings will be received (good rains) makes the task of crépissage more attractive.Footnote ¹²²

Purposes of Sentencing

1. 3. Articles 77 and 78 of the Statute do not specify the purpose of sentences at the Court.

2. 4. Deterrence is one objective of sentencing, as is denunciation, or the ‘expression of society’s condemnation of the criminal act and of the person who committed it’.Footnote ¹³¹ A third objective is the rehabilitation of the convicted person and the promotion of their reintegration into society.Footnote ¹³² Rehabilitation of the perpetrator is crucial where criminal sentences seek to incorporate concepts of restorative and transformative justice, which have, in the past few decades, become increasingly common elements of domestic criminal law while also gaining international prominence.Footnote ¹³³

3. 5. The Chamber understands restorative justice to focus on the provision of restitution to the victims, the perpetrator taking responsibility for their actions, and the role of a sentence in contributing to reconciliation.Footnote ¹³⁴ In essence, it focuses on repairing the broader harm caused by criminal behaviour, ideally through an inclusive and cooperative process.Footnote ¹³⁵ In placing a greater emphasis on restorative justice, a sentence may assist in repairing harms suffered by individual victims and the community as a whole, as well as developing a more meaningful opportunity for the convicted person to take responsibility for their actions. A correct application of restorative justice approaches will consider the needs of the victim, the community, and the perpetrator, which necessitates an analysis of their rehabilitative potential.Footnote ¹³⁶

4. 6. The Chamber notes the unique circumstances of the present case, where Mr Al Mahdi has pleaded guilty to the crime with which he has been charged, and considers that a ‘guilty plea is accepted as a first step to rehabilitation of the perpetrator and a positive factor towards reconciliation of the offended community’.Footnote ¹³⁷

5. 7. The Chamber views this as an opportune moment to provide further guidance on the sentencing objective of rehabilitation.

6. 8. Regrettably, the rehabilitative objective has not been judicially examined in earnest by this Court, as the Katanga sentencing decision simply stated that rehabilitation was to be accorded limited weight.Footnote ¹³⁸ There, without reference to jurisprudence or any other sources, the Katanga Chamber held that the objective of easing the convicted person’s reintegration into society ‘cannot be considered to be primordial as the sentence on its own cannot ensure the social reintegration of the convicted person’.Footnote ¹³⁹ The Katanga Chamber provided no further analysis on this point.

7. 9. With respect to the Katanga Chamber’s suggestion that, for an objective of sentencing to be primordial the sentence must, on its own, ensure the objective is achieved, this Chamber disagrees. Were the Katanga Chamber’s statement true with respect to rehabilitation then, likewise, neither deterrence nor denunciation could be primordial objectives of sentencing. A sentence cannot ensure on its own that an individual, or the general public for that matter, is deterred from committing a crime.Footnote ¹⁴⁰ Nor can a sentence be said to satisfy every party to the process, or global observer for that matter, in terms of denunciation – it is trite to say that the appropriateness of a sentence, for either being too harsh or too lenient, is an oft-debated topic, in both domestic and international criminal law.

8. 10. Sentencing, at its core, is about judging another human being – a member of our global community, with whom we share common bonds. It is a delicate science, guided by the law of this Court as well as general criminal legal principles, where judges are tasked with imposing sentences that best reflect each objective in light of all the circumstances of the individual and the crime in question. Though it is the intention of any criminal court to impose a sentence that achieves its objectives, the law is subject to the practical limitations of reality: ‘Justice is the aspirational application of law to life.’Footnote ¹⁴¹ A court, on its own, cannot ensure any single objective; a court can only impose a just and appropriate sentence that is mindful of each of its objectives, and enforceable pursuant to its law.

9. 11. Acknowledging life outside the legal corridors through which we tread, including the reality that sentences pronounced in a courtroom are subject to limitations in terms of their practical impact, is not to say that the sentencing process and its underlying objectives are moot. Rather, it is to acknowledge the complexities of the overarching context, and that the criminal trial process is but one avenue through which justice, accountability, and healing are pursued.

10. 12. In the international criminal context, certain perpetrators may be prosecuted as the relevant conflict rages on, while others may appear before a court decades after the fact. Each of these scenarios, and those existing between the two ends of that spectrum, present challenges in crafting appropriate sentences.

11. 13. The existence of such challenges, combined with the apparent tension between the objective of rehabilitation and a traditionally punitive approach to sentencing, have regrettably served to sideline the rehabilitative component of sentencing in the international criminal context.

12. 14. Turning to the consideration of rehabilitation at the ad hoc and hybrid tribunals, the Chamber considers the Čelibići Trial Chamber’s general reference to the objective of rehabilitation, where it noted the following:

    The factor of rehabilitation considers the circumstances of reintegrating the guilty accused into society. This is usually the case when younger, or less educated, members of society are found guilty of offences. It therefore becomes necessary to reintegrate them into society so that they can become useful members of it and enable them to lead normal and productive lives upon their release from imprisonment. The age of the accused, [their] circumstances, [their] ability to be rehabilitated and availability of facilities in the confinement facility can, and should, be relevant considerations in this regard.Footnote ¹⁴²

13. 15. In a separate opinion, Judge Mumba expanded on rehabilitation: international justice ‘is not about unfair retribution; if that were the case, humanity should forget about reconciliation’.Footnote ¹⁴³ Judge Mumba further cautioned against an overemphasis on vengeance, which could manifest through harsh sentences following guilty pleas, and opined that ‘rehabilitation, after turmoil, may serve to reduce the incidence of political instability and conflict’.Footnote ¹⁴⁴

14. 16. Generally, ad hoc tribunals have supported access to rehabilitative programming,Footnote ¹⁴⁵ but, as in Katanga, have held the objective itself subject to an ‘undue weight’ caveat.Footnote ¹⁴⁶ For example, the Čelibići Appeals Chamber considered that:

    Although both national jurisdictions and certain international and regional human rights instruments provide that rehabilitation should be one of the primary concerns for a court in sentencing, this cannot play a predominant role in the decision-making process … Accordingly, although rehabilitation (in accordance with international human rights standards) should be considered as a relevant factor, it is not one which should be given undue weight.Footnote ¹⁴⁷

15. 17. The jurisprudence from the ad hoc tribunals has not, however, provided guidance on the threshold for undue weight in balancing any sentencing objective.Footnote ¹⁴⁸ Though rehabilitation has typically been accorded lesser weight, judges have equally held that deterrence ‘must not be accorded undue prominence in the overall assessment of the sentences to be imposed’.Footnote ¹⁴⁹ In fact, the Čelibići Appeals Chamber further held that it was erroneous for a trial chamber to state that deterrence was the most important factor to consider.Footnote ¹⁵⁰

16. 18. Meanwhile, domestic sources of law suggest that, for certain crimes, though the objectives of deterrence and denunciation may be more prominent, this does not negate the rehabilitative component of the sentence.Footnote ¹⁵¹ Domestic law additionally suggests that rehabilitation is to be considered for all perpetrators, not simply those who are subject to personal or social disadvantages.Footnote ¹⁵²

17. 19. Given the gravity of the crimes before the Court, the Chamber is of the view that victims, including both the specifically harmed community and the global community, are owed sentences that have a strong emphasis on denunciation and deterrence.

18. 20. The Chamber, however, also views the first line of the Preamble to the Statute as a significant directive, and considers that all parties are likewise owed sentences that attempt to contribute to the healing of the ‘common bonds’ and ‘shared heritage’ through which all people, including the convicted person, are united.Footnote ¹⁵³

19. 21. The Preamble’s acknowledgement that international crimes may shatter the ‘delicate mosaic’ of humanity is reminiscent of the way in which certain indigenous communities view crimes as a tear in the ‘community fabric’, which may be repaired through restorative justice mechanisms.Footnote ¹⁵⁴ In this regard, the Chamber considers that a more a deliberate emphasis on rehabilitation is required in its sentencing practices.

20. 22. In considering how the Court can more effectively incorporate the rehabilitative objective, it is important to examine how the sentencing objectives intersect.

21. 23. The Chamber first notes the long-standing principle in criminal law that it is the certainty rather than severity of punishment that more effectively deters criminality.Footnote ¹⁵⁵ Perpetrators serving longer prison sentences may, in fact, be more likely to reoffend, due to the negative impact of being removed from factors that promote rehabilitative potential.Footnote ¹⁵⁶ The Chamber thus views the imposition of lengthy sentences as fulfilling, primarily, the denunciatory objective.

22. 24. With respect to deterrence, it appears as though sentences focusing on an individual’s rehabilitative potential through initiatives such as job and education training, therapeutic treatment, and social connections are more likely to reduce recidivism.Footnote ¹⁵⁷

23. 25. Additionally, these sentences benefit the perpetrator through various outcomes, including the acquisition of knowledge and skills, strengthened self-perception, and greater self-understanding.Footnote ¹⁵⁸ It is suggested that rehabilitative programming may allow an individual to transform their perspectives to become more inclusive, open, and reflective, thereby gaining greater control over their lives as socially responsible, clear-thinking decision-makers.Footnote ¹⁵⁹

24. 26. The Chamber thus notes the potential for a positive impact on the convicted person themselves through a sentence emphasising rehabilitation. Not only does such a sentence aim to protect the community by reducing recidivism; it also has the additional benefit of allowing the perpetrator the opportunity to take meaningful accountability for their crimes, and to possibly return to the community at some point in the future as a contributing member who is better equipped to make decisions with the entire community in mind.

25. 27. The Chamber further views that the rehabilitation of the perpetrator is an inextricable component of deterrence and, indeed, opines that without considering how the convicted person can be rehabilitated, specific deterrence is entirely unmet. The objectives of deterrence and rehabilitation are distinct, yet indivisible, as meaningful deterrence requires rehabilitation, and the aim of that rehabilitation is to allow the perpetrator the opportunity to make better, non-destructive choices in the future, thereby deterring future criminal activity.

26. 28. Finally, the Chamber considers the way in which sentences that incorporate aspects of restorative justice, such as rehabilitation, may contribute to a community’s sense of peace and justice. Overall, restorative justice programming in domestic settings, which includes a focus on rehabilitation in sentencing, appears to result in increased victim and perpetrator satisfaction with the overall process, greater fear reduction for victims, and the development of increased empathy in the convicted person.Footnote ¹⁶⁰ The Chamber notes that, depending on the status of the conflict at issue, outcomes in the international criminal context may differ significantly. Nevertheless, the Chamber considers that at least some of these outcomes may result.

27. 29. Based on the above, the Chamber is of the mind that there is no implicit hierarchy between denunciation, deterrence, and rehabilitation. In other words, no one objective of sentencing is determinative, but rather each objective is relevant to the balancing test that sentencing judges must perform. These objectives are fulfilled through the imposition of a just and appropriate sentence, which ‘reflects the degree of culpability while contributing to the restoration of peace and reconciliation in the communities concerned’.Footnote ¹⁶¹

28. 30. Each perpetrator will have a different rehabilitative potential. A trial chamber has broad discretion in determining an appropriate sentence considering all the unique circumstances of the individual and case,Footnote ¹⁶² and equally holds such discretion in assessing how the sentence properly fulfils each objective.

29. 31. The sentence should make its objectives plain. To do so, the sentence must simply speak to each objective in the context of the case. This is distinct from articulating a particular objective as primordial or assigning a hierarchy amongst the objectives. It is sufficient that the sentence reflects each of the objectives logically and accessibly. This is a fact-specific analysis, and, as such, there may be some cases where a certain objective is more relevant than another. It is the context of the specific case before it that will determine the weight a chamber attributes to each objective in delineating the sentence.

30. 32. Based on the inclusion of rehabilitation as an equal objective of sentencing, the Chamber, in undertaking to pronounce a just, appropriate, and individualised sentence within the context of this case, turns to consider the types of sentences that may be imposed upon convicted persons at this Court.

Harm

1. 42. To be eligible for reparations, a victim must have suffered harm as a result of the commission of the crime of which Mr Al Mahdi was convicted. …

2. 45. As the ‘First Expert Report’ rightly notes, this is the first engagement of the ‘ICC’ with the situation in Mali and it is, therefore, essential that the Chamber understands the harms that flow from this crime in the context of the wide range of abuses that were carried out during the occupation and the ideology that informed the attacks.Footnote ²²⁷

3. 46. The Chamber has noted that the destruction of the protected buildings was ordered because the attackers considered them to be sites of vice.Footnote ²²⁸ Mr Al Mahdi, as head of the Hesbah morality brigade, was entrusted with regulating the morality of the people of Timbuktu, and of preventing, suppressing, and repressing anything perceived by the occupiers to constitute a visible vice.Footnote ²²⁹ These visible vices included freedom of dress and freedom of movement, especially for women.Footnote ²³⁰ Mr Al Mahdi has personally referenced ‘not wearing the veil, revealing one’s physical appearance [and] gender mix[ing]’ as examples of vice suppressed by Hisbah.Footnote ²³¹ The Hesbah organised patrols to make sure that women complied with the dress codes imposed by the armed groups.Footnote ²³² In addition, women were subjected to a range of abuses, including rape and sexual assaults, which escalated as the attackers were mobilised.Footnote ²³³

4. 47. It is within this context that the war crime of attacking the Protected Buildings occurred. Therefore, while the reparations order must focus on compensation for the effects of Mr Al Mahdi’s crimes, the Chamber notes the importance of taking a gender-sensitive approach to reparations in this case,Footnote ²³⁴ ensuring that the losses and harms experienced by women are not further marginalised by this reparations order, or through its implementation. …

Consequential Economic Loss

1. 72. When pronouncing Mr Al Mahdi’s sentence, the Chamber concluded that Mr Al Mahdi caused economic harm.Footnote ²³⁵

2. 73. The victims have requested compensation for the effect that the attacks on the protected buildings had on their livelihood. The tourist economy was decimated as a result of the attacks.Footnote ²³⁶ Prior to the destruction of the protected buildings, people came from all over the world to see the mausoleums and to pray to the saints.Footnote ²³⁷ On given days, people would visit the mausoleums to offer monetary donations or sacrifice animals (mostly in the case of women, who could not enter the mausoleums).Footnote ²³⁸ The destruction of the protected buildings was understood by the community as destroying the souls and spirits of the saints.Footnote ²³⁹ Without the belief that the saints might listen to the prayers and grant their wishes, visitors have become rare.Footnote ²⁴⁰ According to one victim, ‘the damage sustained by the Timbuktu area is incommensurable. It will take generations for the situation to return to how it was before 2012’.Footnote ²⁴¹

3. 74. The Chamber notes three overlapping categories of economic losses. There is no hierarchy between these categories. Instead, the losses incurred by the victims should be understood on their own merits. This is important given that women, children, and the elderly are unlikely to be included in the first category and should not be disadvantaged in the implementation of the reparations order.

4. 75. The first category comprises those victims whose livelihoods exclusively depended upon the protected buildings. These include the guardians of the mausoleums, the maçons tasked with prominent responsibilities in maintaining them,Footnote ²⁴² and people whose businesses could not exist without the protected buildings. The victims’ legal representative (LRV) has drawn attention to the particular harm suffered by this category of victims.Footnote ²⁴³

5. 76. The second category includes victims whose livelihoods have been indirectly harmed, including as a result of the losses of tourism and economic activity in the years following the attack.Footnote ²⁴⁴ Consequential economic loss falling into this category has been detailed in the ‘Second Expert Report’.Footnote ²⁴⁵

6. 77. The Chamber notes that traditional gender roles may have an impact on the way the economic harm is felt. Individuals who are restricted from entering into the mausoleums, including women under a certain age,Footnote ²⁴⁶ are more likely to suffer indirect harm as a result of their destruction. Attacks on the informal economy are also likely to have a particularly strong impact on some sectors of the population, including women and girls. These economic losses are more difficult to quantify because of the absence of accounting records. Nonetheless, as the LRV has observed, the effect of the destruction has been no less real for the victims.Footnote ²⁴⁷ It is important that distinctions are not drawn between direct and indirect economic loss when assessing the impact of the destruction of the protected buildings on victims for the purpose of allocating reparations. This is to ensure that reparations do not contribute to the entrenchment of discrimination and, to the extent that it is possible, play a role in disrupting pre-existing inequalities and patterns of structural discrimination.Footnote ²⁴⁸

7. 78. The third category of economic losses comprises those resulting from the abandonment of property as a result of fleeing Timbuktu in the wake of the destruction out of fear that ‘Mr Al Mahdi and his co-perpetrators would turn their attention to people after striking stone and mortar’.Footnote ²⁴⁹ In fleeing, victims ‘were forced to abandon not only their property, livestock and money, but their occupations and businesses as well’.Footnote ²⁵⁰ This economic loss should be included in reparations to ensure that affected victims, including women, children, and the elderly, are not excluded by a narrow focus on loss of business owners alone.

8. 79. The Chamber is satisfied that Mr Al Mahdi’s crime is both the actual and proximate cause of these three categories of economic harm. It was reasonably foreseeable that attacking cultural property integral to the community in Timbuktu would have a lingering economic impact. Indeed, the protected buildings were targeted in large part because of their prominent community role.Footnote ²⁵¹

9. 80. As noted in the Second Expert Report,Footnote ²⁵² the general consequential economic loss caused by the attack reverberated across the entire community in Timbuktu. The Chamber considers that the harm caused by Mr Al Mahdi’s actions is primarily collective in character. It is much larger and of a different nature than the harm suffered by the 139 applicants grouped together. Aggregating their losses and prioritising their compensation would risk dramatically understating and misrepresenting the economic loss actually suffered.

10. 81. Nevertheless, the LRV argues that compensation should be given to all reparations applicants who suffered financial losses, and that a further €250 be granted to each victim applicant to address their collective harm.Footnote ²⁵³

11. 82. When focusing on the extent of compensation, the Chamber considers it more equitable to use individual reparations to compensate victims on the basis of the extent of the harm suffered or sacrifice made, whether as part of the formal or informal economy, directly or indirectly, rather than solely on whether a victim had applied for reparations. To do otherwise would exacerbate gender-based discrimination faced by women who may, in this cultural context, be less likely to make individual applications.

12. 83. The Chamber notes that reparations applicants in the present case already obtain several procedural advantages which are not necessarily available to other members of the Timbuktu community who suffered similar harm. By virtue of having already prepared applications and supporting materials, the applicants can take part in the screening procedure, specified later in the present order, without significant additional effort. The applicants provided information considered by the Chamber in tailoring the reparations award, giving them more influence over the parameters set in the present order. The applicants also continue to avail themselves of the assistance of the LRV, a Court-appointed lawyer who receives legal assistance to represent their interests and advocate for them. Furthermore, inclusion and participation in the reparations process has been understood to provide reparation in itself, insofar as it restores agency to victims.Footnote ²⁵⁴

13. 84. Compensating the applicants – to the exclusion of similarly harmed people – beyond these procedural advantages puts undue emphasis on the filing of applications rather than on the extent of the harm suffered or the sacrifice made by the victims. Doing so may exacerbate gender-specific disadvantages where women’s voices have not been heard as part of these applications. There is no reason to believe that the reparations applicants, simply by virtue of applying, suffered to a different degree compared with the rest of the Timbuktu community. It is important to ensure that a broader range of victims, including women, children, and the elderly, benefit from the reparations process to promote their agency and challenge their previous exclusion. As noted by the LRV, there is a high risk of frustration in awarding reparations only to those who have reparations applications pending before the Chamber.Footnote ²⁵⁵ The Second Expert Report also recommends that reparations in the present case should be ‘awarded on a collective basis as far as possible’.Footnote ²⁵⁶

14. 85. Accordingly, the Chamber awards individual reparations for consequential economic loss only to those (i) whose livelihoods exclusively depended upon the protected buildings, including those whose livelihood was to maintain and protect those buildings; (ii) whose livelihoods were significantly affected by their destruction; or (iii) those who otherwise suffered significant personal economic loss as a consequence of their destruction, such as the loss of their homes as a result of displacement. An individualised response is more appropriate for them, as their loss relative to the rest of the community is more acute and exceptional.

15. 86. The Chamber considers that the number of victims and the scope of the consequential economic loss make a collective award more appropriate for those beyond these identified groups. This is not to say that other individual businesses and families beyond these three categories could not receive financial support in the implementation of these collective reparations, but rather that the Chamber considers a collective response is more appropriate to adequately address the harm suffered. As indicated by the Appeals Chamber, ‘the decision not to award reparations on an individual basis does not prejudice the individuals who filed individual reparations requests with respect to their eligibility to participate in any collective reparations programme’.Footnote ²⁵⁷

16. 87. The Chamber therefore considers that the economic harm caused by Mr Al Mahdi necessitates: (i) individual reparations for those whose livelihoods exclusively depended upon the protected buildings, who were significantly affected by their destruction, or who otherwise suffered significant personal economic loss as a consequence of their destruction; and (ii) collective reparations for the community of Timbuktu as a whole.

17. 88. As for the modalities, the Chamber considers that individual reparations are to be implemented through compensation to address the financial losses suffered. The modalities for collective reparations should be aimed at rehabilitating the community of Timbuktu to address the economic harm caused. Collective measures in this regard may include: community-based educational and awareness-raising programmes to promote Timbuktu’s important and unique cultural heritage; return/resettlement programmes; the development of actions or programmes aimed at assisting women, youth, and others towards generating income; a ‘microcredit system’ that would assist the population to generate income; a school/university; a project that would generate jobs not only for the women, but for youth and others; or other cash assistance programmes to restore some of Timbuktu’s lost economic activity.Footnote ²⁵⁸

18. 89. Moreover, a fully gender-sensitive approach to the protection of cultural heritage and to combating its destruction is essential.Footnote ²⁵⁹ As recommended in the First Expert Report, such reparations could include initiatives such as promoting training for women and fostering discussions of the issue of non-discrimination in access to cultural heritage sites as a means of guaranteeing non-repetition of the abuses in this case.Footnote ²⁶⁰ As the First Expert Report notes, ‘if there was no specific provision made for reparations for women, women will be unlikely to be beneficiaries of the reparations. The reparations process can afford an opportunity to strengthen their recognition and involvement in the protection, care and transmission of cultural heritage’.Footnote ²⁶¹

Moral Harm

1. 90. When pronouncing Mr Al Mahdi’s sentence, the Chamber concluded that Mr Al Mahdi had caused moral harm.Footnote ²⁶²

2. 91. Every victim applicant before the Chamber alleges some sort of moral harm as a result of the attack on the protected buildings. The Chamber considers that the victims established the following forms of moral harm to the requisite standard: (i) mental pain and anguish, including losses of childhood, opportunities, and relationships among those who fled Timbuktu because the protected buildings were attacked and (ii) disruption of culture.Footnote ²⁶³

3. 92. The Chamber has also received other information describing the emotional distress and harm suffered across the Timbuktu community. In particular, the protected buildings were widely perceived in Timbuktu as being the protectors of the community from outside harm. The attack on the protected buildings not only destroyed cherished monuments, but also shattered the community’s collective faith that they were protected.Footnote ²⁶⁴ Collective events at the mausoleums also brought members of the community together; the crépissage, or plastering of the mosques, is done collectively, with women and the elderly at the base and young men at the top.Footnote ²⁶⁵

4. 93. In relation to moral harm stemming from the disruption of culture, the Chamber has acknowledged in its sentencing judgment the particular loss of intangible cultural heritage that women have faced in their ritual of cleaning the shrines.Footnote ²⁶⁶ Women were the most frequent visitors to the mausoleums, even though they were unable to enter the protected buildings.Footnote ²⁶⁷ They often prayed at these buildings, making wishes to have children, or wishing for the success of their children.Footnote ²⁶⁸ Having acknowledged the particular links that women have with the mausoleums, the First Expert Report stresses the significance of including a ‘gender specific component of the reparations that recognizes women’s connections to the cultural heritage that was targeted, their suffering during the jihadist occupation and the [REDACTED] in countering the fundamentalist ideology that inspired the destructions’.Footnote ²⁶⁹

5. 94. The Chamber is satisfied that Mr Al Mahdi’s crime is both the actual and proximate cause of this moral harm. It was reasonably foreseeable that attacking cultural property integral to the community in Timbuktu would cause these kinds of distress.

6. 95. The LRV argues at length that the moral harm suffered is best addressed by giving compensation to the applicants as individual and collective reparations.Footnote ²⁷⁰ For the same reasons provided when discussing consequential economic loss, the Chamber considers such a compensation-centric approach for the benefit of the reparations applicants to be problematic. The Chamber again emphasises that it considers that such a course understates the variety of other information proving that Timbuktu’s community at large – and not only the victim applicants – suffered moral harm.

7. 96. The Registry has noted that documentary evidence of harm, proving a victim was ‘faithful’ or was harmed by the destruction of the buildings, and quantifying moral harm would prove difficult for most victims.Footnote ²⁷¹ The defence argues in its submissions that psychological harm in the present case can be proven only by asking for a direct kinship between the people claiming the harm and the deceased whose mausoleums were attacked.Footnote ²⁷² The Chamber agrees with the defence – and LRV,Footnote ²⁷³ for that matter – that those whose ancestors’ burial sites were damaged in the attack (such as the ‘descendants of the saints’) have a different kind of emotional connection to the destroyed sites than the rest of the Timbuktu population. However, it considers that the community-wide impact of moral harm is minimised by sole reliance on direct kinship as a means of proving moral harm. Furthermore, given that male victims are more likely to be able to prove a connection with the ‘descendants of the saints’, due to the patrilineal way that familial records are kept, narrowly interpreting this moral harm could reinforce structural and material exclusion of women.

8. 97. With this in mind, the Chamber stresses the importance of recognising female-based lines of ancestry alongside ‘descendants of the saints’ when identifying groups that have a particularly strong emotional connection to the destroyed sites. The Chamber considers that individual reparations through compensation are necessary to address the mental pain and anguish that these victims suffered. But the remainder of the reparations awarded to the entire community of Timbuktu must be collective in character and should prioritise collective opportunities for sections of the population who may be marginalised in the distribution of individual reparations.

9. 98. The Chamber therefore orders that the moral harm caused by Mr Al Mahdi necessitates: (i) individual reparations for the mental pain and anguish of those with a stronger emotional connection to the destroyed sites than the rest of the Timbuktu population, including those whose ancestors’ burial sites were damaged in the attack and (ii) collective reparations for the mental pain/anguish and disruption of culture of the Timbuktu community as a whole.

10. 99. As for the modalities, the Chamber considers that individual reparations are to be implemented through compensation and collective reparations through rehabilitation to address the emotional distress suffered as a result of the attack on the protected buildings. These collective reparations can 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. As noted by the LRV, the implementation of reparations must not result in any discrimination – including gender-based discrimination – among victims.Footnote ²⁷⁴ It is important, therefore, that all victims, including women, children, and the elderly, be included in decisions around collective reparations. …