Who is the victim of cultural heritage destruction? The Reparations Order in the case of the Prosecutor v Ahmad Al Faqi Al Mahdi

On 17 August 2017, Trial Chamber VIII of the ICC issued its Reparations Order in the Al Mahdi case. The Chamber found that Al Mahdi was liable for 2.7 million euros for (a) the damage caused by the attack of nine mosques and the Sidi Yahia Mosque door; (b) the economic loss caused to the individuals whose livelihoods depended upon the tourism and maintenance of these ‘Protected Buildings’ and to the community of Timbuktu as a whole; and (c) the moral harm caused by the attacks, as illustrated by one of the victims quoted in the order: “My faith is shattered. My family fled [.] […] I lost everything and all my faith” (at §85).

The Reparations Order builds upon the reparations principles established in Lubanga and Katanga. However, it is also one of the few opportunities public international law has had to pronounce upon appropriate reparations for heritage destruction—forming part of the string of ‘firsts’ involved in Al Mahdi thus far.

Who is a ‘relevant victim’ of cultural heritage destruction?

The Chamber identified three groups of victims: the inhabitants of Timbuktu, as the direct victims of the crime; the population of Mali; and, notably, the international community. The latter category is a new element in the reparations jurisprudence of the Court, and its inclusion in the present Order seems to be mostly a consequence of the particular category of crime the Chamber was dealing with. The Chamber wished to stress “the specific nature of the crime for which Mr Al Mahdi was convicted. The destruction of cultural heritage erases part of the heritage of all humankind” (at §53), as such causing harm to the international community.

Yet after having emphasised the importance of the interest of the international community in the matter, the Chamber made a curious volte-face by stating that addressing the harms caused to the Timbuktu community would adequately address any broader harm to the Malian and international community (at §56). It subsequently limited its analysis only to the first group of victims. One wonders why—if this is what the Chamber wished to achieve in the first place—it found it necessary to jump through the hoop of identifying the international community as a victim.

One hypothesis might be that the ICC continues to fear backlash for conducting a trial focused solely on the destruction of heritage. Unfortunately, the Court’s emphasis to date on the role of the international community as a victim of cultural crimes has tended to do little more than feed into the troubling rhetoric surrounding cultural heritage within international law, with the concomitant (rather ironic) risk of it becoming divorced from the needs of cultural victims.

Worryingly, the fact that the majority of the destroyed sites were World Heritage Sites reflects, according to the Chamber, “higher cultural significance and a higher degree of international attention and concern” (at §17). Such a view is inaccurate: the listing process at UNESCO has been viewed as notoriously politicised and biased towards particular forms of heritage. The World Heritage List is by no means a perfect mirror of the most important cultural sites across the globe, and should be acknowledged as a work in progress.

Symbolic reparations

The Chamber held that individual reparations were to be exclusively rewarded to those whose livelihoods were dependent upon the Protected Buildings and those who suffered mental pain from the damaging of their ancestors’ burial sites. The remainder of reparations are to be collective in nature in light of the predominantly collective effect of Al Mahdi’s crime. Given that the mausoleums and the Sidi Yahia Mosque have already been restored by UNESCO, the Chamber noted that measures to ensure non-repetition of the attacks were the most appropriate form of reparation to address the harm flowing from the physical destruction of the buildings.

The Chamber also decided to suggest numerous symbolic reparations. To address critiques from victims concerning their dissatisfaction with Al Mahdi’s apology for his crimes, the Chamber thus ordered the Registry “to produce an excerpt of the video of Mr. Al Mahdi’s apology and post it on the Court’s website with the corresponding transcript translated into the primary languages spoken in Timbuktu” (at §71). It also ordered the Malian State and UNESCO to each be awarded a symbolic amount of one euro for the harm suffered respectively by the Malian and international community.

In addition, as a collective reparation in response to the moral harm caused to the various groups of victims, The Chamber suggested “symbolic measures—such as a memorial, commemoration or forgiveness ceremony” (at §90). The international community has often been involved in the memorialisation of conflicts, for example in Rwanda and the former Yugoslavia. There is also precedent in the jurisprudence of the Inter-American Court of Human Rights and the Bosnian and Herzegovinian Human Rights Chamber for the ordering of the construction of memorials as a form of reparations.

In light of the critiques from some of the experts consulted by the Chamber concerning the marginalization of certain groups within traditional Malian culture, it will be interesting to see how the Trust Fund for Victims will proceed with this particular suggestion. Engaging with memorialisation of the conflict will perhaps require the Trust Fund to engage for the first time with transformative justice, not in the sense of solely improving the lives of individuals, but to also transform Malian society. In doing so, it will need to remain aware of the role that the construction of memorials can play in the construction of national historical narratives.

Al Mahdi’s liability and the calculation of cultural damages

The Chamber held that Al Mahdi is liable for 2.7 million euros in damages: 97,000 euros for the reconstruction of the Protected Buildings, as per the costs incurred by UNESCO; 2.12 million euros for ‘consequential economic loss’; and 483,000 euros for the moral harm inflicted upon affected individuals and the wider Timbuktu community.

The calculation of Al Mahdi’s liability for the moral harm caused to the victims is perhaps of particular interest. The Court appeared rather hesitant here in arriving upon a firm basis from which to depart in constructing a quantification of the moral harm caused, after noting that “[t]here is an inherent difficulty in addressing and measuring monetary value for moral harm” (at §129).

In any case, despite its doubts, the Chamber eventually provided a quantification of the moral harm in question, relying upon its Second Expert Report. The relevant part of the report was based upon the Final Award of 2009 of the Eritrea-Ethiopia Claims Commission, which was tasked with calculating damages for damage caused to the Stela of Matara, a 2,500-year-old obelisk of significant archaeological value. It awarded damages to cover both the cost of reconstruction works and the moral harm caused by the damage, with the latter being valued at 23,000 USD. The Chamber in Al Mahdi used this sum as a base-line to estimate the moral damages incurred in the destruction of the Protected Buildings in Timbuktu, increasing it to reflect the fact that the buildings in Mali were World Heritage sites and had been completely destroyed, unlike the Stela. In this manner, the Chamber arrived at its final number of 483,000 euros as compensation for the moral harm: 50,000 euros for each destroyed World Heritage site.

Once again, as discussed above, the question remains whether the label of World Heritage is the most appropriate method through which to calculate the gravity of heritage destruction. Destroyed heritage may not always have the ‘luck’ of being listed at the time of its destruction; moreover, the heritage in question may not even always be (solely) tangible in nature. The Chamber could have relied more extensively here on precedents from the Inter-American Court of Human Rights which respond to the disruption of intangible forms of indigenous culture.

In any case, the Trust Fund for Victims is not necessarily bound by “the Chamber’s intermediate liability calculations […] when designing an implementation plan, only its final determination on Mr Al Mahdi’s total liability” (at §139). Ultimately, as with its earlier orders on reparations, the Court was once again faced with an indigent defendant; for the moment, we will have to wait until 16 February 2018, when the Trust Fund for Victims is due to submit its draft implementation plan.