By Janet Sankale
Former Mali Islamist rebel leader Ahmad Al Faqi Al Mahdi, the first suspect to plead guilty before the International Criminal Court, will leave prison early after the judges reduced his sentence by two years.
According to a decision dated November 25, 2021, Judge Solomy Balungi Bossa (presiding), Judge Marc Perrin de Brichambaut, and Judge Gocha Lordkipanidze of the Appeals Chamber, appointed for the purpose of the review concerning the reduction of the sentence, rendered a unanimous decision to cut by two years Al Mahdi’s original sentence of nine years. He is now scheduled to complete his sentence on September 18, 2022.
On June 28, 2021, the Appeals Chamber noted that on September 18, 2021, Al Mahdi will have served two-thirds of the sentence imposed on him.
Article 110(3) of the Rome Statute provides for a sentence review if a person has served two-thirds of their term. The reasons for such a review include early and continuous willingness of the person to cooperate with the court in its investigations and prosecutions; voluntary assistance in enabling the enforcement of the judgments and orders of the court in other cases; and providing assistance in locating assets subject to orders of fine, forfeiture, or reparation which may be used for the benefit of victims.
Another factor is a clear and significant change of circumstances, as provided in the Rules of Procedure and Evidence.
The court can also take into account the conduct of the person while in detention, showing a genuine dissociation from his or her crime; the prospect of the resocialisation and successful resettlement; and whether the early release would give rise to significant social instability.
Other factors include any significant action taken by the person for the benefit of the victims as well as any impact on the victims and their families as a result of the early release and individual circumstances, including a worsening state of physical or mental health or advanced age.
The panel noted that in the judgment and sentence decision, the trial chamber found that Al Mahdi admitted his guilt and “took responsibility for his actions as early as the first day of his interviews with the prosecution”.
The Prosecutor submitted that Al Mahdi “cooperated in good faith” with its investigations into crimes in the Mali situation.
The judges found that it had been established that Al Mahdi’s conduct prior to the imposition of the sentence qualifies as an indicator of cooperation at an early stage.
“The panel finds that Al Mahdi’s continued adherence to his admission of guilt, his continued compliance with the terms of the agreement, and his cooperation post-sentence, are indications of an early and continuing willingness to cooperate with the court’s investigations and prosecutions. The panel, therefore, considers that the factor set out in article 110(4)(a) of the Statue is present,” said the judges.
The panel also noted that when imposing a sentence on Al Mahdi, the Trial Chamber took into account his expression of remorse and empathy for the victims as a substantial factor in mitigation.
The panel considered that Al Mahdi has not taken any significant action for the benefit of the victims and that the impact of his early release on the victims has been assessed as neutral.
On September 27, 2016, Trial Chamber VIII found Al Mahdi guilty and sentenced him to nine years imprisonment for war crimes including deliberately directing attacks against historical monuments and buildings dedicated to religion, among them nine mausoleums and one mosque, in Timbuktu, Mali, in June and July 2012.
Timbuktu was designated as a World Heritage Site by Unesco in 1998. It was known to be the centre for Islamic culture and learning between the 13th and 17th centuries. In response to the armed conflict from northern Mali by Islamist rebels in 2012, the region was added to the Unesco List of World Heritage in Danger.
The destruction of the city’s cultural heritage provoked an international outcry. Intentionally directing attacks against historical monuments or buildings dedicated to religion are war crimes under the ICC Rome Statute.
Cultural war crimes can be traced back through the body of law governing conduct during armed conflict: the 1954 Hague Convention for the Protection of Cultural Property and its two protocols; and the 1977 protocols to the Geneva Conventions.
Al Mahdi was a member of Ansar Eddine, an Islamist armed group that seeks the imposition of Sharia law in Mali. He was alleged to be associated with Al Qaeda in the Islamic Maghreb (AQIM), working closely with the leaders of the two armed groups and in the context of the structures and institutions established by them. It was alleged that, until September 2012, he was the head of the Hisbah (body set up to uphold public morals and prevent vice), established in April 2012. He was also associated with the work of the Islamic Court of Timbuktu and participated in executing its decisions.
It was alleged that he was involved in the destruction of nine mausoleums and one mosque that Ansar Eddine had declared heretical under Sharia law.
The chamber indicated that the targeted buildings were regarded and protected as a significant part of the cultural heritage of Timbuktu and Mali, and did not constitute military objectives. They were specifically identified, chosen, and targeted precisely in light and because of their religious and historical character. They were either destroyed or severely damaged.
A warrant of arrest against Al Mahdi was issued by ICC Pre-Trial Chamber I on September 18, 2015, for war crimes of intentionally directing attacks against historical monuments and buildings dedicated to religion, committed between about June 30, 2012, and July 10, 2012.
He was surrendered to the ICC authorities of Niger on September 26, 2015, and transferred to the ICC Detention Centre.
His first appearance before the court was on September 30, 2015 and the confirmation of charges hearing was in March 2016. The trial took place from August 22 to 24, 2016. Al Mahdi admitted guilt at the opening of the trial.
The situation in Mali was referred to the court by the government of that country on July 13, 2012. On January 16, 2013, the Office of the Prosecutor opened an investigation into alleged crimes committed on the territory of Mali since January 2012.
This was the first case of destruction of cultural heritage to come before the ICC, and the first time a suspected Islamic extremist appeared before the ICC.
The case is now at the reparations stage. On August 17, 2017, Trial Chamber VIII issued a Reparations Order concluding that Al Mahdi is liable for 2.7 million euros in expenses for individual and collective reparations for the community of Timbuktu for intentionally directing attacks against religious and historic buildings in that city.
The chamber noted that Al Mahdi is indigent and encouraged the Trust Fund for Victims to complement the reparations award. It directed the fund to submit a draft implementation plan on February 16, 2018. The plan was to include objectives, outcomes, and necessary activities. The fund will identify projects and implementation partners for the court’s final approval.