Jailed for Destroying Heritage

Oct 6 2016 - Last week, the International Criminal Court (ICC) sentenced Ahmad al-Mahdi of Mali to nine years’ imprisonment for his part in the destruction of heritage monuments in Timbuktu about four years ago.

I.A. Rehman

I.A. Rehman

The court awarded the sentence after taking into consideration the mitigating circumstances — confession of guilt, cooperation with the ICC prosecutor, and regrets expressed to the victims. Some of the observations made by the court, as reported by the International Federation of Human Rights, will reverberate around the globe for quite some time.

The court found Al Mahdi responsible for the destruction of five heritage monuments. The crime was especially serious, the court said, in view of its impact on the people, as “the buildings targeted were not only of religious character but were also of symbolic and emotional value to the inhabitants of Timbuktu,” and that these people considered the monuments a “source of protection” for their city.

Since all but one of the six monuments were on the Unesco list of World Heritage Sites, their destruction affected the entire population of Mali as well as the international community, the court said.

Al Mahdi’s trial before the ICC became possible because the definition of war crimes in Article 8.2 (e) iv of the Rome Statute, that lays down the court’s charter, includes “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”.

Mali ratified the ICC Statute in 2000. On the request of its government, the ICC office of the prosecutor investigated the crimes alleged to have been committed on the Mali territory by religious extremists during January 2012-January 2013.

Al Mahdi’s case should interest our legal experts, anti-terrorism authorities and heritage lovers for several reasons.

After the warrant for the arrest of Al Mahdi was issued by an ICC bench in September 2015, he was surrendered within a few days to the ICC by the government of Niger and transferred to the court’s detention centre in the Netherlands.

The 41-year-old Ahmad al-Faqi al-Mahdi, also known as Abu Turab, was a member of the radical Ansar Eddine group reportedly linked to Al Qaeda. As one of the four commanders of Ansar Eddine who controlled Timbuktu after it was occupied by armed militants, he was also head of the religious police in the city. Until September 2012, he was head of the Hesbah (the moral brigade) and also helped the religious court of Timbuktu to enforce its decisions. The charges against him before the ICC related to the destruction of heritage monuments during June-July, 2012.

Incidentally, human rights organisations had also pleaded for Al Mahdi’s conviction on charges of crimes against the people, especially women, but the court did not look in that direction.

The monuments Al Mahdi was accused of destroying included five mausoleums of renowned Islamic leaders and scholars, belonging to the period of Timbuktu’s political and educational glory, and the Sidi Yahia mosque.

The ICC has authority to punish individuals for crimes of genocide, crimes against humanity and war crimes. The court was established in the Hague, under the Rome Statute in July 1998, and the Statute came into force on July 1, 2002. Several features distinguish ICC from the International Court of Justice; it has been created under a world treaty; it acts independently of the United Nations; and it can try individual offenders who have traditionally enjoyed a high degree of impunity. However, in accord with the spirit of UN mechanisms, the petitioners and defendants both must belong to states that have ratified the Rome Statute.

Al Mahdi’s case should be of interest to Pakistan’s legal experts, anti-terrorism authorities and lovers of heritage for a variety of reasons. Since the state is under attack by extremists who have been targeting mosques, schools and heritage sites, it is only fair to ask the government to consider ratification of the Rome Statute of the ICC.

This case allows one to see the destruction of heritage by extremist groups in various Muslim countries in a new light, even if it does not reopen the controversies generated by the destruction of graves and mausoleums in Saudi Arabia in the last century, and the efforts made by the people of the subcontinent to save Masjid-i-Nabvi.

It may be necessary to hold to account the elements responsible for destroying the Bamiyan Buddhas. The penal codes of the Muslim countries will need to be revised to provide for adequate punishment for destroying monuments of historical, religious, educational and scientific value. This will include review of the criminal code provisions applicable to terrorist attacks on shrines, mosques, universities, schools and hospitals.

The ICC verdict should not cause anxiety to anyone in Pakistan who threatens the status of heritage sites in the name of development so long as these are not blown up with dynamite. However, there has been at least one attempt to blow up the Rahman Baba mausoleum/ shrine that surely falls under ICC jurisdiction. And a strong case can be made for prescribing stiffer punishments for terrorist attacks on mosques, churches and educational centres.

At the same time, this case should persuade the government to bring heritage protection laws and procedures in accord with the international community’s (especially Unesco’s) standards and prescriptions. Not only that, the authorities will have to stop dismissing heritage issues with contempt.

The foremost requirement seems to be a revision of the Antiquities Act of 1975 and the Punjab law on the protection of buildings of historical/ cultural value. For instance, the maximum punishment for destruction of heritage in the 1975 law, that is three years’ imprisonment, is too low to deter anyone. Likewise, the power allowed to the director of archaeology to permit in his sole discretion any encroachment within 200 feet (approximately 60 metres) of a protected monument is not only ridiculous in the extreme, it also amounts to negating the very purpose of the enactment.

Published in Dawn October6th, 2016

This story was originally published by Dawn, Pakistan

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