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Prosecutor v. Ahmad Al Faqi Al Mahdi: Judgment and Sentence & Reparations Order (Int'l Crim. Ct.)

Published online by Cambridge University Press:  05 March 2018

Ana Filipa Vrdoljak
Ana Filipa Vrdoljak*
Affiliation:
Professor of Law, Faculty of Law, University of Technology Sydney.
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International Legal Documents
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International Legal Materials , Volume 57 , Issue 1 , February 2018 , pp. 17 - 79
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Copyright © 2018 by The American Society of International Law 

Introduction

On September 27, 2016, Trial Chamber VIII of the International Criminal Court (ICC or Court) delivered its Judgment and Sentence in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi.Footnote 1 On August 17, 2017, it rendered the Reparations Order in this case.Footnote 2 The Court for the first time found a defendant responsible for intentionally attacking protected cultural and religious sites, while relying on specialized treaties for the protection of cultural heritage. It is also the first time that an international criminal court, while drawing on international human rights law, has delivered an order for reparations pertaining to this international crime. The tension between the Court's Judgment and Sentence and its Reparations Order highlights that these two areas of international law, international cultural heritage law and international human rights law, remain unaligned.

Background

The case against Mr. Al Mahdi, head of the morality brigade known as Hesbah and member of Ansar Dine, arises from the situation in Mali, referred to the Court by Mali, a state party to the Rome Statute, in July 2012. On September 18, 2015, Pre-Trial Chamber I issued an arrest warrant for Mr. Al Mahdi for war crimes of intentional attacks against religious and historic protected objects in Timbuktu by armed forces under his control during the occupation of northern Mali by Ansar Dine and Al-Qaeda in the Islamic Maghreb (AQIM) in 2012.Footnote 3 Mr. Al Mahdi was charged with this count only. No charges were entered in respect of loss of civilian lives or civilian property per se.

There has been increasing international condemnation of the intentional destruction of cultural heritage during international and noninternational armed conflicts, including in Syria, Iraq, Mali, and Libya, by the ICC Prosecutor, UN Security Council, General Assembly, and the UN Educational, Scientific and Cultural Organization (UNESCO). However, intentional destruction is not confined to armed conflict, as exemplified by the Taliban's destruction of the monumental Buddhas in Bamiyan, Afghanistan, in 2001. This led to the adoption of the UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage in 2003, which brings together developments in international criminal law, international humanitarian law, international human rights law, and international cultural heritage law.Footnote 4 Most of the sites attacked recently are inscribed on the World Heritage list or its In Danger list pursuant to the Convention on the Protection of the World Cultural and Natural Heritage.Footnote 5 While the Convention itself does not specifically deal with armed conflict or intentional destruction of cultural heritage, it has become an important indicator of cultural, religious, and historic objects protected by international criminal law.

The case against Mr. Al Mahdi was the first war crimes proceeding concerning attacks against protected objects brought before the ICC. The definition of such intentional attacks during armed conflict as war crimes has had precursors before the International Military Tribunal (IMT) in Nuremberg and the International Criminal Tribunal for the former Yugoslavia (ICTY).Footnote 6 While reparations did flow from these earlier examples with the Allied postwar restitution schemes and national reparations orders in domestic schemes in Bosnia and Herzegovina, respectively, the ICC Reparations Order was the first time the same court that delivered the judgment and sentence also assessed and awarded reparations flowing from this crime. This brought to the fore tension between the drivers behind the criminalization of these acts and the reparations designed to address their impact—tension arising from the two specialized areas of international law on which they respectively relied.

Trial Chamber VIII's Judgment and Sentence

Like the IMT and ICTY before it, the ICC traced the lineage of the war crimes pertaining to the prohibition against attacks on protected cultural or religious objects during armed conflict contained in the Rome Statute back to the 1907 Hague Regulations,Footnote 7 1919 Report of the Commission on the Responsibility of the Authors of War and on Enforcement of Penalties,Footnote 8 and subsequently (by the ICTY) the Additional Protocols to the Geneva ConventionsFootnote 9 and Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Second Protocol.Footnote 10 And, like the ICTY, the Court reaffirmed the significance of World Heritage inscription in establishing a violation of this war crime and weighing the gravity of the offense for sentencing purposes.Footnote 11 However, inscription on a “list maintained by UNESCO or another international organization” is not a prerequisite for establishing individual criminal responsibility.Footnote 12

Trial Chamber VIII found that the defendant's admission of guilt and evidence established the elements of the charge beyond reasonable doubt. Namely, (1) that the acts took place in the context of and were associated with a noninternational armed conflict: (a) that Ansar Dine and AQIM fell within the definition of organized armed groups at the relevant time, (b) that the armed violence met the minimum level of intensity required, and (c) that the perpetrators were aware of the circumstances establishing an armed conflict. (2) The objects of the attacks were religious and historic monuments and not military objectives, with all but one inscribed on the World Heritage list. (3) Mr. Al Mahdi was criminally responsible as co-perpetrator of the acts, having overseen the planning and execution of the attacks, directly participated in several attacks, and justified the attacks to the media as the designated spokesperson.

When sentencing Mr. Al Mahdi, the Court observed that his acts were a crime against property, not persons, and therefore of lesser gravity. Nonetheless, the Court found that the crime was of significant gravity because it was directed at World Heritage sites of importance to Mali and the international community; the sites were of symbolic and psychological importance to the local population; and there was a discriminatory religious intent, meaning the deliberate destruction of the sites to prevent religious practices. In mitigation, the Court noted that Mr. Al Mahdi had initially counseled against the destruction to maintain good relations with the local population, that he had made an admission of guilt, and that he had expressed “genuine” remorse and empathy for the victims. He was sentenced to nine years’ imprisonment. Convictions before the ICTY for war crimes against cultural property concerning the bombing of the World Heritage–listed Old City of Dubrovnik attracted seven and eight years’ imprisonment. Those convictions covered other war crimes, including against civilians.Footnote 13

The ICC's reliance on specialized cultural heritage treaties, that is, the World Heritage Convention and the 1954 Hague Convention and its Protocols, in its judgment and sentencing phases for this war crime, is driven by similar rationales underpinning protection under these regimes, namely, the cultural property's importance to humanity. These specialized instruments do not reference human rights norms.

Trial Chamber VIII's Reparations Order

Trial Chamber VIII's Reparations Order was the first rendered in respect of war crimes against cultural and religious property and the first by an international criminal court.Footnote 14 While Mr. Al Mahdi was indicted and convicted of a crime against protected property and not against civilians, when determining appropriate reparations the Court observed that cultural heritage must be considered in respect of its “human dimension.”Footnote 15 For the reparations phase, the sites’ importance to the local population was brought to the fore, in addition to their universal importance to humanity. The significance of access to cultural heritage for the effective enjoyment of human rights has recently been acknowledged by international and regional human rights bodies. The Court found that the attacks on these religious and cultural sites impacted the cultural life and identity of local communities and individuals in violation of international human rights norms. It reinforced this by again relying on reparations principles developed by international human rights bodies, a position consistent with the Declaration on Intentional Destruction.Footnote 16

The Reparations Order recognized the importance of the cultural loss to Timbuktu and its inhabitants, Mali, and the international community by addressing property damage to protected sites, consequential economic loss, and moral harm. For each head of reparation, the Court prioritized the inhabitants of Timbuktu, whom it viewed as disproportionately affected by the acts. In respect of property damage, it ordered collective reparation for the protection and maintenance of the protected sites and measures to ensure nonrepetition, together with translation of Mr. Al Mahdi's apology into local languages. For consequential economic loss, it ordered payments to individual victims whose livelihoods were exclusively dependent on the protected sites destroyed,Footnote 17 and collective reparations for the community of Timbuktu to ameliorate financial losses suffered. Moral harm was to be covered by individual reparations for the mental pain and anguish suffered by persons whose ancestors were buried at the sites attacked, and collective reparations for the mental pain and “disruption of culture” to Timbuktu as a whole through rehabilitation including public, symbolic measures (e.g., memorial, commemorations). It awarded Mali and UNESCO the symbolic sum of one euro respectively, noting that the collective reparations to the Timbuktu community would have a positive flow-on effect. The Court's guidance to the Trust Fund for Victims (TFV) in implementing the Order sought to reinforce these priorities.

Despite its emphasis on the human dimension of these crimes’ impact during the reparations phase, the Court rejected submissions for reparations to address loss and harm to civilians and civilian property. This was a flow-on from the narrowness of the indictment and resultant conviction.

Conclusion

In the face of condemnation of the intentional destruction of cultural property in various armed conflicts, the indictment and conviction by the ICC was made easier in Al Mahdi because of the referral by the state party, admission of guilt, and the fact that most of the sites attacked were inscribed on the World Heritage list.

It is unsurprising that the Prosecutor chose to pursue a war crimes count as the first case brought before the Court for attacks against cultural and religious property. It replicates a pattern set by the IMT and ICTY, where war crimes proved to be an initial stepping stone to subsequent crimes against humanity (persecution) and genocide cases. These latter international crimes’ construction lends itself to a clearer link between human rights and cultural heritage.

The tension between the ICC's remit at the judgment and sentencing phase and the reparation phase is exacerbated when prosecuting war crimes against cultural property. This is because the specialized areas relied on by the Court, namely, international cultural heritage law and international human rights law, remain unaligned despite recent efforts. The Declaration on Intentional Destruction was an early step in fostering international criminal law's development concerning cultural heritage by emphasizing the need to align the operation of specialized cultural heritage and human rights instruments. It is an important reference point as international (and national) prosecutors venture beyond war crimes into crimes against humanity and genocide when pursuing future indictments for attacks on cultural property and courts assess related reparations.

PROSECUTOR V. AHMAD AL FAQI AL MAHDI: JUDGMENT AND SENTENCE (INT'L. CRIM. CT.)

This text was reproduced and reformatted from the text available at the International Criminal Court website (visited January 8, 2018), https://www.icc-cpi.int/CourtRecords/CR2016_07244.PDF.

Original: English

No.: ICC-01/12-01/15

Date: 27 September 2016

TRIAL CHAMBER VIII

Before:

Judge Raul C. Pangalangan, Presiding Judge

Judge Antoine Kesia-Mbe Mindua

Judge Bertram Schmitt

SITUATION IN THE REPUBLIC OF MALI

IN THE CASE OF THE PROSECUTOR v. AHMAD AL FAQI AL MAHDI

Public

Judgment and Sentence

To be notified in accordance with Regulation 31 of the Regulations of the Court to:

  1. I. Introduction ……… 24

    1. A. Procedural history ……… 24

    2. B. The Accused and the charge ……… 24

  2. II. Judgment ……… 25

    1. A. Applicable law ……… 25

      1. 1. Crime charged ……… 25

      2. 2. Modes of liability ……… 26

      3. 3. Article 65 of the Statute ……… 26

    2. B. Established facts of the case ……… 27

      1. 1. Context ……… 28

      2. 2. Decision to attack the mausoleums and mosques ……… 28

      3. 3. The attack and Mr Al Mahdi's responsibility ……… 29

    3. C. Findings ……… 30

      1. 1. Findings on Article 8(2)(e)(iv) of the Statute ……… 30

      2. 2. Findings on Article 25(3)(a) of the Statute (co-perpetration) and other modes of liability ……… 31

    4. C. Conclusion ……… 32

  3. III. Sentence ……… 33

    1. A. Applicable law ……… 33

      1. 1. Gravity of the crime ……… 34

      2. 2. Aggravating and mitigating circumstances ……… 34

    2. B. Analysis ……… 34

      1. 1. Gravity of the crime34

      2. 2. Mr Al Mahdi's culpable conduct35

      3. 3. Mr Al Mahdi's individual circumstances36

    3. C. Determination of the sentence ……… 37

TRIAL CHAMBER VIII (‘Chamber’) of the International Criminal Court (‘Court’ or ‘ICC’) issues the following Judgment and Sentence, in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi, having regard to Articles 8(2)(e)(iv), 23, 25(3)(a), 65 and 76 to 78 of the Rome Statute (‘Statute’) and Rules 139 and 145 of the Rules of Procedure and Evidence (‘Rules’).

I. Introduction

A. Procedural history

1. On 18 September 2015, the Single Judge of Pre-Trial Chamber I issued a warrant for Mr Ahmad Al Faqi Al Mahdi's arrest.Footnote 1 Mr Al Mahdi was transferred to The Hague on 26 September 2015 and his first appearance took place on 30 September 2015.Footnote 2

2. On 17 December 2015, the Office of the Prosecutor (‘Prosecution’) filed its document containing the charge. It contained a single charge alleging that Mr Al Mahdi is responsible for the war crime of attacking protected objects under Article 8(2)(e)(iv) of the Statute.Footnote 3

3. On 18 February 2016, the parties reached a plea agreement in relation to the charge (‘Agreement’).Footnote 4

4. On 24 March 2016, the Pre-Trial Chamber confirmed the charge alleged by the Prosecution.Footnote 5 Trial Chamber VIII was constituted accordingly on 2 May 2016.Footnote 6

5. On 24 May 2016, this Chamber held its first status conference.Footnote 7 At this status conference, it was decided, with the agreement of the parties, that: (i) in the event of a conviction, the judgment and sentence in this case would be rendered simultaneously; and (ii) the materials on the confirmation phase lists of evidence were considered as presented by the Prosecution and accepted by the Accused for the purposes of an Article 65 determination. After receiving supplementary lists of further materials presented by the Prosecution and accepted by the Accused, the Chamber has before it 714 items to consider in its determinationsFootnote 8 and two written witness statements of Defence witnesses to be considered exclusively for sentencing.Footnote 9

6. On 8 June 2016, the Chamber appointed a Legal Representative of Victims (‘LRV’) in the case.Footnote 10 In total, eight victims participated in the trial proceedings.Footnote 11

7. The trial was held between 22 and 24 August 2016.Footnote 12 Mr Al Mahdi made an admission of guilt. All oral submissions relating to the judgment and sentencing were received,Footnote 13 and the Prosecution presented the testimony of three witnesses.

8. Excluding the present decision, this Chamber rendered 18 written decisions, 12 oral decisions and 37 e-mail decisions in the course of the trial proceedings.

B. The Accused and the charge

9. Mr Ahmad Al Faqi Al Mahdi, also known as Abu Turab, was born in Agoune in the region of Timbuktu, Mali. He is between 30 and 40 years oldFootnote 14 and belongs to a family recognised in his community for having a particularly high knowledge of Islam.Footnote 15 Having received Koranic education since his childhood,Footnote 16 Mr Al Mahdi has a thorough knowledge of the KoranFootnote 17 and gave lectures as an expert on religious matters.Footnote 18 He joined the armed group known as Ansar Dine in April 2012.Footnote 19

10. Mr Al Mahdi is charged with intentionally directing attacks against 10 buildings of a religious and historical character in Timbuktu, Mali, between around 30 June 2012 and 11 July 2012: (i) the Sidi Mahamoud Ben Omar Mohamed Aquit Mausoleum; (ii) the Sheikh Mohamed Mahmoud Al Arawani Mausoleum; (iii) the Sheikh Sidi El Mokhtar Ben Sidi Mouhammad Al Kabir Al Kounti Mausoleum; (iv) the Alpha Moya Mausoleum; (v) the Sheikh Mouhamad El Mikki Mausoleum; (vi) the Sheikh Abdoul Kassim Attouaty Mausoleum; (vii) the Sheikh Sidi Ahmed Ben Amar Arragadi Mausoleum; (viii) the Sidi Yahia Mosque door and the two mausoleums adjoining the Djingareyber Mosque, namely (ix) the Ahmed Fulane Mausoleum and (x) the Bahaber Babadié Mausoleum.

II. Judgment

A. Applicable law

1. Crime charged

11. The only confirmed charge in this case is the war crime of attacking protected objects under Article 8(2)(e)(iv) of the Statute, which 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.’ The parties jointly submit that this is the proper characterisation of the crime committed in this case. Accordingly, this is the crime with which the Prosecution has charged the defendant and to which the defendant has admitted guilt.

12. The Chamber notes that the Prosecution did not charge the defendant with the more general crime of destruction of civilian property under Article 8(2)(e)(xii), which punishes the following acts: ‘Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict.’ No arguments have been raised that Article 8(2)(e)(xii) would have been a more appropriate charge and the Chamber sees no reason to consider any legal recharacterisation,Footnote 20 noting in particular that the specific intent of the defendant to attack protected objects meets squarely the mens rea requirement of Article 8(2)(e)(iv).

13. In order to prove the crime charged, it must be proven 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 21

Considering that this is the first case in which the Court is applying Article 8(2)(e)(iv), the Chamber will proceed to interpret this crime and its elements.

14. The special protection of cultural property in international law can be traced back to Articles 27 and 56 of the 1907 Hague RegulationsFootnote 22 and to the 1919 Commission on Responsibility, which identified ‘wanton destruction of religious, charitable, educational, and historic buildings and monuments’ as a war crime.Footnote 23 The Geneva Conventions also recognised the need for special protection of objects – like hospitals – which are already protected as civilian objects.Footnote 24 Subsequent international instruments reflect the enhanced protection of cultural property, including Additional Protocols I and II to the Geneva ConventionsFootnote 25 and the Second Protocol to the Hague Convention of 1954.Footnote 26

15. The Chamber considers that the element of ‘direct[ing] an attack’ encompasses any acts of violence against protected objects and will not make a distinction as to whether it was carried out in the conduct of hostilities or after the object had fallen under the control of an armed group. The Statute makes no such distinction. This reflects the special status of religious, cultural, historical and similar objects, and the Chamber should not change this status by making distinctions not found in the language of the Statute. Indeed, international humanitarian law protects cultural objects as such from crimes committed both in battle and out of it.Footnote 27

16. Moreover, existing case-law from other cases pertaining to attacks against civilian populationsFootnote 28 does not offer guidance. The Statute protects persons and cultural objects differently. Persons are protected by many distinct clauses that apply during hostilities, after an armed group has taken control, and against various and specific kinds of harm. However, cultural objects in non-international armed conflicts are protected as such, not generically as civilian objects, only in Article 8(2)(e)(iv), which makes no distinction between attacks made in the conduct of hostilities or afterwards. Lastly, the jurisprudence of the ICTY is of limited guidance given that, in contrast to the Statute, its applicable law does not govern ‘attacks’ against cultural objects but rather punishes their ‘destruction or wilful damage’.Footnote 29 The legal contexts thus differ.

17. Article 8(2)(e)(iv) is the non-international armed conflict analogue of Article 8(2)(b)(ix), applicable in international armed conflict and with nearly identical elements.Footnote 30 Both provisions govern the directing of attacks against special kinds of civilian objects, reflecting the particular importance of international cultural heritage. Article 8(2)(e) sets forth a contextual component, namely that it applies to armed conflicts not of an international character that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organised armed groups.

18. The parties submit jointly, and the Chamber has received evidence, that there was an armed conflict not of an international character in Mali during the relevant period. The Chamber notes that one element of the crime is that the ‘conduct took place in the context of and was associated with an armed conflict not of an international character.’ The Chamber understands that the ‘conduct’ is the attack on cultural objects, and what this element requires is not a link to any particular hostilities but only an association with the non-international armed conflict more generally.

2. Modes of liability

19. In order to prove that someone co-perpetrated a crime by committing it jointly with others under Article 25(3)(a) of the Statute, it must be proven that:

  1. 1. The person makes an essential contributionFootnote 31 with the resulting power to frustrate the commission of the crime.Footnote 32

  2. 2. The person's contribution is made within the framework of an agreement with others which led to the commission of the crime.Footnote 33

  3. 3. The person satisfies the subjective elements of the crime.Footnote 34

20. For the reasons set out later in this Judgment,Footnote 35 it is unnecessary to set out the requirements for the alternative modes of liability charged by the Prosecution and confirmed by the Pre-Trial Chamber.

3. Article 65 of the Statute

21. As this is the first time Article 65 has been applied at this Court, the Chamber will briefly address the origins and purpose of this provision.

22. The 1994 International Law Commission Draft Statute required the Trial Chamber to allow the accused to ‘enter a plea of guilty or not guilty’.Footnote 36 This provision soon met with controversy. It was noted in the 1995 Ad Hoc Committee report that a view had been expressed by some delegations that ‘the effect of a guilty plea would need to be spelled out in view of the differences between civil-law and common-law systems’ and the remark was made that, ‘in view of the gravity of the crimes within the jurisdiction of the court, it would be inappropriate to permit plea bargaining’.Footnote 37 It was also noted on this issue in the 1996 Preparatory Committee report that ‘[a]ttention was drawn to the need to bridge the gap between different legal systems […] with emphasis being placed on finding the common denominators in different legal systems’.Footnote 38

23. Civil and common law systems diverge, traditionally speaking, on the role played by admissions of guilt. This reflects deeper traditional differences in understanding on the nature of criminal procedure:

If proceedings are patterned upon the model of an official determination of the facts of the case, both formal pleadings and stipulations are objectionable […] On the other hand, if proceedings are essentially a contest, and the judgment a decision between the contestants, the logic of this procedural design naturally tends toward accepting formal pleadings and stipulations.Footnote 39

24. The first language of what ultimately became Article 65(1)-(4) of the Statute comes from an Argentine working paper distributed in 1996.Footnote 40 This proposal intended to serve as an intermediate solution that blended traditional common and civil law concepts.Footnote 41 A joint Argentine-Canadian follow-up proposal first introduced the language of an ‘admission of guilt’, avoiding the familiar terminology used in either the civil or common law traditions.Footnote 42

25. The biggest change in the provision following these 1996 proposals is the introduction of what was to become Article 65(5) of the Statute.Footnote 43 This was adopted to ease the concerns of those delegations which wanted to ensure that the admission of guilt procedures did not open the way to the introduction of plea bargaining.Footnote 44 This is a different issue to that of ‘guilty pleas’ generally, as it is possible to have an admission of guilt in the absence of any agreement between the parties.Footnote 45 Article 65(5) explicitly makes such inter-partes discussions non-binding on the Trial Chamber, a notion acceptable to plea bargaining advocates and sceptics alike.Footnote 46

26. Few substantive changes were made to this draft from the 1997 Preparatory Committee onwards, and Article 65 was adopted together with the remainder of the Statute on 17 July 1998.

27. The solution reflected in the final Article 65 of the Statute follows a ‘third avenue’ between the traditional common law and civil law approaches.Footnote 47 Pursuant to Articles 64(8)(a) and 65 of the Statute, an accused is afforded an opportunity to make an admission of guilt at the commencement of the trial, a procedure which looks not dissimilar to the traditional common law ‘guilty plea’. Article 65(5) of the Statute also implicitly authorises discussions corresponding to plea agreements in common law legal systems. However, Article 65 also requires the Chamber to conclude that the admission is ‘supported by the facts of the case’, specifically requiring it to consider both the admission of guilt ‘together with any additional evidence presented’.Footnote 48 This is more analogous to a summary or abbreviated procedure traditionally associated with civil law systems.

28. Such admissions, when accepted by the Chamber, can have a multitude of benefits to the Court and the interests of justice more generally. An admission of guilt can lead to a swifter resolution of a case, giving much needed finality in an otherwise unmatchable timeframe. While there may be victims who prefer to testify, others may wish to be spared the stress of having to testify to their personal tragedies and being exposed to cross-examination. Accused admitting guilt pursuant to an agreement to testify in subsequent trials can contribute to the search for the truth as insider witnesses in cases against others. Perhaps most importantly, the speed at which cases can be resolved following admissions of guilt saves the Court both time and resources, which can be otherwise spent advancing the course of international justice on other fronts.

B. Established facts of the case

29. The Chamber will now proceed to set out what it considers to be the established facts of the case. The Chamber must make such a determination pursuant to Article 65(1)(c) of the Statute. In order to assess whether ‘the admission of guilt is supported by the facts of the case’, the Chamber heard three witnesses and considered the hundreds of documentary evidence items presented by the Prosecution and accepted by the Accused. For each of the established facts, the Chamber has relied upon: (i) the admissions of the Accused;Footnote 49 (ii) the supplementary material presented by the Prosecution and accepted by the Accused;Footnote 50 and (iii) the testimony of the witnesses who appeared before this Chamber. Although there is no corroboration requirement when assessing evidence,Footnote 51 the Chamber paid particular attention to whether evidence could establish the facts independently of the Accused's admissions.

30. The Chamber notes at the outset that Mr Al Mahdi has confirmed, both orally and in writing, that he:

  1. (i) Understands the nature of the charge against him, and the consequences of an admission of guilt;Footnote 52

  2. (ii) Makes an admission of guilt voluntarily, after sufficient consultation with Defence counsel;Footnote 53

  3. (iii) Waives his rights to: (a) plead not guilty and require the Prosecution to prove the charges beyond reasonable doubt at a full trial; (b) not confess guilt and to remain silent; (c) raise defences and grounds for excluding criminal responsibility, and to present admissible evidence at a full trial; (d) examine the witnesses against him and to obtain the examination of witnesses on his behalf at a full trial; and (e) appeal a conviction or sentence, provided the sentence is not in excess of the recommended sentencing range;Footnote 54 and

  4. (iv) Accepts his individual criminal responsibility for the charge, including all modes of liability alleged;Footnote 55 it is noted that the Agreement does not envisage the modification of the charge.

1. Context

31. In January 2012, armed violence took place in the territory of Mali and led to different armed groups taking control of the north of the country.Footnote 56 Around early April 2012, following the retreat of Malian armed forces, the groups Ansar Dine and Al-Qaeda in the Islamic Maghreb (‘AQIM’) took control of Timbuktu.Footnote 57 From then until January 2013 Ansar Dine and AQIM imposed their religious and political edicts on the territory of Timbuktu and its people.Footnote 58 They did so through a local government, which included an Islamic tribunal, an Islamic police force, a media commission and a morality brigade.Footnote 59 This morality brigade was called the Hesbah.Footnote 60

32. After living briefly in Algeria, Mr Al Mahdi returned to Mali around the beginning of April to provide support to these armed movements.Footnote 61 Mr Al Mahdi was in direct contact with the leaders of Ansar Dine and AQIM, including Iyad Ag Ghaly (the leader of Ansar Dine), Abou Zeid (the ‘Governor’ of Timbuktu under the armed groups), Yahia Abou Al Hammam (an AQIM chief) and Abdallah Al Chinguetti (a religious scholar within AQIM).Footnote 62 Mr Al Mahdi was viewed as an expert on matters of religion, and was consulted in this capacity, including by the Islamic tribunal.Footnote 63 Mr Al Mahdi was very active in aspects of the Ansar Dine and AQIM administration.Footnote 64

33. Abou Zeid asked Mr Al Mahdi to lead the Hesbah, and he did so from its creation in April 2012 until September 2012.Footnote 65 He wrote a document on the role of the Hesbah and its objectives, which was then distributed to the other government structures put in place.Footnote 66 The Hesbah 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 67

2. Decision to attack the mausoleums and mosques

34. The mausoleums of saints and mosques of Timbuktu are an integral part of the religious life of its inhabitants. Timbuktu's mausoleums and mosques constitute a common heritage for the community. These mausoleums are frequently visited by the residents – they are places of prayer and, for some, places of pilgrimage.Footnote 68

35. When Abou Zeid and his collaborators were informed of the practices of the Timbuktu population related to these mausoleums, Mr Al Mahdi was asked to monitor the cemeteries visited by the residents.Footnote 69 The objective was to raise awareness among the population to stop such practices and, as the case may be, to prohibit them from pursuing them.Footnote 70 Mr Al Mahdi did this monitoring for around one month, taking notes on the inhabitants’ behaviour at the mausoleums, meeting with local religious leaders and explaining on the radio what could and could not be done at the mausoleums.Footnote 71

36. In late June 2012, Ag Ghaly made the decision to destroy the mausoleums, in consultation with Al Chinguetti and Al Hammam.Footnote 72 Mr Al Mahdi was also consulted by Abou Zeid before this decision was made. Mr Al Mahdi expressed his opinion that all Islamic jurists agree on the prohibition of any construction over a tomb, but recommended not destroying the mausoleums so as to maintain relations between the population and the occupying groups.Footnote 73 Nevertheless, Ag Ghaly gave the instruction to proceed to Abou Zeid, who in turn transmitted it to Mr Al Mahdi in his capacity as the chief of the Hesbah.Footnote 74

37. Despite his initial reservations, Mr Al Mahdi agreed to conduct the attack without hesitation on receipt of the instruction. He was conscious of the object of the common plan to attack these sites.Footnote 75 Mr Al Mahdi wrote a sermon dedicated to the destruction of the mausoleums, which was read at the Friday prayer at the launch of the attack.Footnote 76 He personally determined the sequence in which the buildings/monuments were to be attacked.Footnote 77

3. The attack and Mr Al Mahdi's responsibility

38. The attack itself was carried out between around 30 June 2012 and 11 July 2012.Footnote 78 Ten of the most important and well-known sites in Timbuktu were attacked and destroyed by Mr Al Mahdi and other individuals adhering to the same common plan:

  1. (i) The Sidi Mahamoud Ben Omar Mohamed Aquit Mausoleum, on 30 June 2012: around 60 individuals, in the presence of Mr Al Mahdi and Al Chinguetti, razed the mausoleum to the ground. Armed men ensured the security of those who were actively engaged in destroying the mausoleum.Footnote 79

  2. (ii) The Sheikh Mohamed Mahmoud Al Arawani Mausoleum, on 30 June 2012; it was also destroyed.Footnote 80

  3. (iii) The Sheikh Sidi El Mokhtar Ben Sidi Mouhammad Al Kabir Al Kounti Mausoleum, located in the Sidi El Mokhtar Cemetery and visited by pilgrims from and outside Mali, on 30 June 2012. Mr Al Mahdi supervised the destruction and gave instructions, along with tools, to the attackers. At the site, Mr Al Mahdi told journalists present that ‘if a tomb is higher than the others, it must be levelled […] we are going to rid the landscape of anything that is out of place’.Footnote 81

  4. (iv) The Alpha Moya Mausoleum, located in the Alpha Moya Cemetery and visited in order to pray and make offerings, on 30 June 2012. Mr Al Mahdi directly participated and Abou Zeid also visited the site around the time of the attack. As previously, there was a security cordon of 30 combatants protecting those who engaged in the destruction.Footnote 82

  5. (v) The Sheikh Mouhamad El Mikki Mausoleum, a place of spiritual retreat and reflection, located in the Three Saints Cemetery, on the following day, 1 July 2012. The mausoleum was completely destroyed.Footnote 83

  6. (vi) The Sheikh Abdoul Kassim Attouaty Mausoleum, located in the Three Saints Cemetery and built in the sixteenth century, on 1 July 2012.Footnote 84

  7. (vii) The Sheikh Sidi Ahmed Ben Amar Arragadi Mausoleum, located in the Three Saints Cemetery, on 1 July 2012. Mr Al Mahdi physically participated in the attack, which completely destroyed the mausoleum.Footnote 85

  8. (viii) The door of the Sidi Yahia Mosque, on 2 July 2012. Legend had it that this door had not been opened for 500 years and that opening it would lead to the Last Judgment. Al Chinguetti told Al Mahdi that the door had to be opened, and both went to the site with pickaxes that Mr Al Mahdi bought with Hesbah funds. Mr Al Mahdi explained the destruction to journalists while it was taking place:

What you see here is one of the ways of eradicating superstition, heresy and all things or subterfuge which can lead to idolatry. We heard about a door in the ancient mosque of Sidi Yahya. If it is opened, the Day of Resurrection will begin. Following an investigation, we discovered that it was a condemned door in the courtyard of an old mosque. The door was condemned and bricked up. Over time, a myth took hold, claiming that the Day of Resurrection would begin if the door were opened. We fear that these myths will invade the beliefs of people and the ignorant who, because of their ignorance and their distance from religion, will think that this is the truth. So we decided to open it.Footnote 86

(ix) and (x) The two mausoleums adjoining the Djingareyber Mosque (especially visited on Mondays and Fridays and for important religious celebrations), on or around 10-11 July 2012. Al Chinguetti asked Mr Al Mahdi to destroy the mausoleums, who agreed and oversaw the attack. Mr Al Mahdi physically took part in the destruction, and decided at one point that a bulldozer should be used. When the attackers were clearing the rubble towards the end of the acts of destruction, Abou Zeid and Al Chinguetti, among others, came to provide and demonstrate their support at the site. The mausoleums destroyed were the Ahmed Fulane Mausoleum and the Bahaber Babadié Mausoleum.Footnote 87

39. All these sites were dedicated to religion and historic monuments, and were not military objectives.Footnote 88 With the exception of the Sheikh Mohamed Mahmoud Al Arawani Mausoleum, all these buildings had the status of protected UNESCO World Heritage sites.Footnote 89

40. Mr Al Mahdi knew that he exercised joint control over the attack and was fully implicated in its execution.Footnote 90 He contributed to the attack in the following ways:

  1. (i) he supervised the execution of the operations, using his men from the Hesbah and overseeing the other attackers who came to participate in the operations;Footnote 91

  2. (ii) he collected, bought and distributed the necessary tools/means in order to successfully carry out the attack;Footnote 92

  3. (iii) he was present at all of the attack sites, giving instructions and moral support;Footnote 93

  4. (iv) he personally participated in the attack that led to the destruction of at least five sites: (a) the Alpha Moya Mausoleum;Footnote 94 (b) the Sheikh Sidi Ahmed Ben Amar Arragadi Mausoleum;Footnote 95 (c) the door of the Sidi Yahia Mosque;Footnote 96 (d) the Ahmed Fulane Mausoleum; and (e) the Bahaber Babadié Mausoleum;Footnote 97 and

  5. (v) he was responsible – having been designated by Al Chinguetti – for communicating with journalists to explain and justify the attack.Footnote 98

41. During one such press interview in the course of the attack, Mr Al Mahdi said the following:

I don't know the truth about those saints. We just know that fools […] come and take sand from those places to get blessed […]. That's why we consider this campaign as an effort that's exerted in collaboration with the imams […] We only paid attention to the buildings constructed above the graves in the cemetery, and the tombs that are annexed to the mosques from the outside. […] As for demolishing these buildings, […] we think that we've already introduced this matter gradually, as we've spent four months explaining to the people what's right and what's wrong, and now's the time for implementation.Footnote 99

C. Findings

42. On the basis of the Accused's statements in open court and the Agreement, the Chamber is satisfied that the Accused understands the nature and consequences of the admission of guilt and that the admission was voluntarily made after sufficient consultation with Defence counsel. With reference to the ‘Established facts of the case’ section above, the Chamber is also satisfied that the admission of guilt is supported by the facts of the case.

43. The Chamber finds beyond reasonable doubt that the admission of guilt, together with the additional evidence presented, satisfies the essential facts to prove the crime charged and that there are no viable affirmative defences.

44. In particular, the Chamber emphasises that it considers the Agreement and Mr Al Mahdi's admissions to be both credible and reliable in full. Mr Al Mahdi went into extensive detail as to the events in question, often volunteering specific information not strictly necessary in order to prove the charge. The Chamber has been able to independently corroborate almost all of Mr Al Mahdi's account with the evidence before the Chamber, strongly indicating that the entire account is true.

1. Findings on Article 8(2)(e)(iv) of the Statute

45. The facts of the case demonstrate that Mr Al Mahdi, in his capacity as head of the Hesbah, was put in charge of the execution phase of destroying the 10 mausoleums and mosques specified in the previous sub-section. Mr Al Mahdi and the attackers accompanying him directed an attack on these buildings, resulting in destruction or significant damage to all of them.

46. These mausoleums and mosques all qualify as both religious buildings and historic monuments, as evidenced by their role in the cultural life in Timbuktu and the status of nine of these buildings as UNESCO World Heritage sites. UNESCO's designation of these buildings reflects their special importance to international cultural heritage, noting that ‘the wide diffusion of culture, and the education of humanity for justice and liberty and peace are indispensable to the dignity of man and constitute a sacred duty which all the nations must fulfil in a spirit of mutual assistance and concern’.Footnote 100 Attacking these mausoleums and mosques was clearly an affront to these values; as Mr Al Mahdi said himself during the Djingareyber Mosque attack:

It's probably the oldest mosque here in town, and is considered a heritage site […] a World Heritage Site. There are so many rumours relating to these shrines […]. Those UNESCO jackasses – this […] they think that this is heritage. Does ‘heritage’ include worshipping cows and trees?Footnote 101

47. These mausoleums and mosques were also clearly the object of the attack, as the evidence establishes the deliberate manner in which the attackers went from one building to the next in a relatively short time period.

48. The Chamber also notes the common modus operandi according to which each of the buildings was attacked, from common tools to armed guards protecting the attackers. The circumstances of the attack, as well as Mr Al Mahdi's statements that the purpose of the operation was to destroy these buildings, demonstrate that the perpetrators intended these buildings to be the object of the attack.

49. The Chamber is satisfied that these acts took place in the context of and were associated with a non-international armed conflict between Malian Government forces and groups including Ansar Dine and AQIM. The evidence demonstrates that Ansar Dine and AQIM qualified as organised armed groups at the relevant time, with the Chamber noting in particular their military capacity to displace the Malian army, capture Timbuktu and exercise some form of government over it for approximately nine months. With respect to the requirement that the armed violence must meet a certain minimum level of intensity to be distinguished from mere internal disturbances and tensions, the Chamber notes that the fact that these groups exercised control over such a large part of Mali for such a protracted period – with the resulting effect on the civilian population concerned – clearly demonstrates a sufficient degree of intensity of the conflict. It would not have been possible for these armed groups to carry out the attack without their conquest of Timbuktu, and the justifications stated during the attack were the same as those advanced by the armed groups for taking over Timbuktu and Northern Mali more generally.Footnote 102

50. The Chamber also notes that there is no evidence in the record of any foreign intervention in opposition to the Malian forces in the relevant time period, nor have the parties claimed that there was any involvement by another State that could potentially affect the classification of the conflict. This means that there is no evidence that the armed conflict became internationalised or should have been classified as international from the outset.

51. Given that Mr Al Mahdi and the attackers were based in Timbuktu and worked pursuant to Ansar Dine's administration of the city, the Chamber is also satisfied that the perpetrators were aware of the factual circumstances which established the existence of the armed conflict.

52. In view of these findings, the Chamber considers that all the elements for the war crime of attacking protected objects are established.

2. Findings on Article 25(3)(a) of the Statute (co-perpetration) and other modes of liability
i. Article 25(3)(a) co-perpetration

53. The Chamber notes its findings on Mr Al Mahdi's contributions to the crimes, including his involvement in planning and preparing the attack. Mr Al Mahdi was the head of the Hesbah, one of four primary institutions established by Ansar Dine and AQIM upon occupying Timbuktu.Footnote 103 He had overall responsibility for the execution phase of the attack, determining the sequence in which the buildings would be destroyed, making the necessary logistical arrangements and justifying the attack to the broader world through media interviews. Mr Al Mahdi personally oversaw the attack itself – he was present at all of the attack sites and directly participated in the destruction of five of the protected buildings. The Chamber considers that Mr Al Mahdi's contributions collectively qualify as an essential contribution with the resulting power to frustrate the commission of the crime.

54. The Chamber is also satisfied that Mr Al Mahdi's contributions were made pursuant to an agreement with others which led to the commission of the crimes. This is evidenced by: (i) Mr Al Mahdi's role in the Ansar Dine leadership; (ii) the effective decision taken by Mr Ag Ghaly and other leadership to attack the mausoleums/mosques; (iii) Mr Al Mahdi's sermon on destroying the buildings immediately before the attack; (iv) Mr Al Mahdi's choice of the sequence in which the buildings would be destroyed; and (v) the coordinated and deliberate manner in which the attack was carried out.

55. Noting Mr Al Mahdi's direct participation in many incidents and his role as media spokesperson in justifying the attack, the Chamber is also satisfied that Mr Al Mahdi personally meets the subjective elements of the crimes.

56. For these reasons, the Chamber considers all the elements of Article 25(3)(a) co-perpetration to be established.

ii. Other modes of liability

57. The Chamber notes that the Pre-Trial Chamber confirmed co-perpetration along with other modes of liability in the alternative, namely: (i) Article 25(3)(b) (soliciting and inducing); (ii) Article 25(3)(c) (aiding and abetting) and (iii) Article 25(3)(d) (contributing in any other way). Mr Al Mahdi accepts that all charged modes of liability, including co-perpetration, are established.

58. The Appeals Chamber has noted that the Statute differentiates between principal (Article 25(3)(a)) and accessorial (Article 25(3)(b) to (d)) liability, with principals bearing more blameworthiness ‘generally speaking and all other things being equal’.Footnote 104 In accordance with this general rule, given that the Chamber has decided that all the elements of co-perpetration are met, there is no need to make any further findings on the accessorial liability alternatives.

59. The Chamber further notes that the Pre-Trial Chamber confirmed Article 25(3)(a) direct perpetration for the five buildings where Mr Al Mahdi personally participated in the destruction. On the basis of the analysis above, and noting that Article 8(2)(e)(iv) of the Statute criminalises the act of directing a specific kind of attack irrespective of whether the buildings in question are destroyed, the Chamber considers that Mr Al Mahdi satisfies all the elements for both direct perpetration and co-perpetration. The Prosecution submits that conviction as a co-perpetrator, rather than direct perpetrator, would ‘fully and accurately reflect the Accused's individual criminal responsibility’.Footnote 105 Neither the Defence nor the LRV take a position on this point.

60. There is no indication in either the Statute or Appeals Chamber jurisprudence of any hierarchy within the variations set out under Article 25(3)(a) of the Statute, nor does the Chamber believe that establishing one is necessary or appropriate. The Chamber considers that, when all the elements of different variations under Article 25(3)(a) of the Statute are proven, the Chamber must elect which mode of responsibility best reflects the full scope of the Accused's individual criminal responsibility. The Accused can be convicted of only one form of Article 25(3)(a) commission for each incident or discrete type of criminal conduct, as to conclude otherwise not only contributes little to the fair labelling of the responsibility of the accused but it also punishes them twice for the commission of the same crime.

61. As also submitted by the Prosecution, the Chamber notes that Mr Al Mahdi oversaw the entire attack against all 10 buildings, and that co-perpetration encapsulates not only his physical participation but also his position of authority in relation to the crimes committed. The Chamber finds that attacking all 10 mausoleums/mosques as a co-perpetrator best reflects Mr Al Mahdi's criminal responsibility. On this finding, Mr Al Mahdi's direct participation in relation to five of the attacks supports the Chamber's conclusions that he made an essential contribution to the crimes charged pursuant to a joint criminal plan.

D. Conclusion

62. In the light of the admission of guilt, the hearings held and the evidence brought forward, the Chamber is satisfied beyond reasonable doubt that all the essential facts of the crime charged are proven.

63. Pursuant to Articles 8(2)(e)(iv), 25(3)(a) and 65(2) of the Statute, the Chamber convicts Mr Al Mahdi as a co-perpetrator for attacking the following protected objects in Timbuktu, Mali between around 30 June 2012 and 11 July 2012: (i) the Sidi Mahamoud Ben Omar Mohamed Aquit Mausoleum; (ii) the Sheikh Mohamed Mahmoud Al Arawani Mausoleum; (iii) the Sheikh Sidi El Mokhtar Ben Sidi Mouhammad Al Kabir Al Kounti Mausoleum; (iv) the Alpha Moya Mausoleum; (v) the Sheikh Mouhamad El Mikki Mausoleum; (vi) the Sheikh Abdoul Kassim Attouaty Mausoleum; (vii) the Sheikh Sidi Ahmed Ben Amar Arragadi Mausoleum; (viii) the Sidi Yahia Mosque door and the two mausoleums adjoining the Djingareyber Mosque, namely the (ix) Ahmed Fulane Mausoleum and (x) Bahaber Babadié Mausoleum.

III. Sentence

64. Having concluded that Mr Al Mahdi is responsible for intentionally attacking the above-mentioned protected objects as a co-perpetrator, the Chamber will now turn to the determination of the appropriate sentence. The submissions made by the parties and participants are addressed in the course of the analysis.

A. Applicable law

65. For the purposes of determining the appropriate sentence, the Chamber has taken into account, inter alia, Articles 23, 76, 77, and 78 of the Statute and Rule 145 of the Rules.

66. The Chamber notes that Articles 77 and 78 of the Statute do not specify the purpose of criminal punishment. However, in the Preamble of the Statute it is declared that ‘the most serious crimes of concern to the international community as a whole must not go unpunished’.Footnote 106 Furthermore, in establishing the ICC, the States Parties were ‘[d]etermined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’.Footnote 107 Accordingly, the Chamber considers that the Preamble establishes retribution and deterrence as the primary objectives of punishment at the ICC.Footnote 108

67. With regard to retribution, the Chamber clarifies that it is not to be understood as fulfilling a desire for revenge, but as an expression of the international community's condemnation of the crimes, which, by way of imposition of a proportionate sentence, also acknowledges the harm to the victims and promotes the restoration of peace and reconciliation. In respect of deterrence, the Chamber considers that a sentence should be adequate to discourage a convicted person from recidivism (specific deterrence), as well as to ensure that those who would consider committing similar crimes will be dissuaded from doing so (general deterrence). Lastly, the extent to which the sentence reflects the culpability of the convicted person addresses the desire to ease that person's reintegration into society, although, in particular in the case of international criminal law, this goal cannot be considered to be primordial and should therefore not be given any undue weight.Footnote 109 As reflected in Article 81(2)(a) of the Statute and Rule 145(1) of the Rules, and as emphasised by the Appeals Chamber, the sentence must be proportionate to the crime and the culpability of the convicted person.Footnote 110

68. The Appeals Chamber has found that the relevant provisions of the Statute and Rules, when read together with the underlying objectives set out in the Preamble, establish a comprehensive scheme for the determination of a sentence. The Chamber must first identify and assess the relevant factors in Article 78(1) and Rule 145(1)(c) and (2).Footnote 111 It must then balance all these factors in accordance with Rule 145(1)(b) and pronounce a sentence for each crime.Footnote 112 The Chamber has considerable discretion in imposing a proportionate sentence.Footnote 113 Lastly, once the sentence has been imposed, Article 78(2) requires deduction of the time the convicted person has spent in detention upon an order of the Court.Footnote 114

69. With regard to the interplay between the factors identified in Article 78(1) and Rule 145(1)(c), the Appeals Chamber has not found it necessary to decide which of the possible approaches is the correct one.Footnote 115 The Chamber notes that Trial Chambers I and II considered the Rule 145(1)(c) factors in their assessment of the Article 78(1) factors.Footnote 116 In addition, Trial Chamber III considered some of them to be relevant to the assessment of the existence of aggravating and mitigating circumstances.Footnote 117 In its assessment of all relevant factors, the Chamber has considered certain Rule 145(1)(c) factors to be relevant for the evaluation of the mitigating and aggravating circumstances identified in Rule 145(2).Footnote 118

70. In considering all relevant factors, the Chamber cannot ‘double-count’ any factors assessed in relation to the gravity of the crime as aggravating circumstances and vice versa. Further, a legal element of the crimes or mode of liability cannot be considered as an aggravating circumstance.Footnote 119

1. Gravity of the crime

71. In order to determine a proportionate sentence, the gravity of the acts committed by the convicted person has to be assessed in concreto, in the light of the particular circumstances of the case. The sentences to be imposed must, therefore, reflect the gravity of the crime charged.

72. In this respect, the Chamber emphasises that the present decision must be read while bearing in mind that the Court has jurisdiction for the most serious crimes of concern to the international community as a whole and that, as a consequence, the sentences should reflect that seriousness. That being said, not all crimes forming the grounds for a criminal conviction are necessarily of equivalent gravity and the Chamber has the duty to weigh each by distinguishing, for example, between those against persons and those targeting property.Footnote 120

2. Aggravating and mitigating circumstances

73. The Chamber must be convinced of the existence of aggravating circumstances beyond reasonable doubt. Aggravating circumstances must relate to the crimes of which a person was convicted or to the convicted person himself. The absence of a mitigating circumstance does not serve as an aggravating circumstance.Footnote 121

74. The Chamber must be convinced of the existence of mitigating circumstances on a balance of probabilities. Mitigating circumstances need not be directly related to the crimes and are not limited by the scope of the charges or the Judgment. They must, however, relate directly to the convicted person. The Chamber has a considerable degree of discretion, in the light of the particular circumstances of the case, in determining what constitutes a mitigating circumstance and the weight, if any, to be accorded to it. While the Chamber must consider any mitigating circumstances, it need not do so under any particular heading or according to any particular rubric. For example, the Chamber may consider certain factors as being relevant to its assessment of the gravity of the crime, instead of considering them in mitigation or aggravation of the overall sentence.Footnote 122

B. Analysis

75. In order to determine the appropriate sentence, the Chamber will consider: (i) the gravity of the crime; (ii) Mr Al Mahdi's culpable conduct; and (iii) his individual circumstances. Rule 145(1)(c) factors and aggravating and mitigating circumstances are discussed in the course of the analysis, when relevant.

1. Gravity of the crime

76. In addressing the gravity of the crime committed, the Chamber considered, in particular, the extent of damage caused, the nature of the unlawful behaviour and, to a certain extent, the circumstances of the time, place and manner.

77. The Chamber first notes that, unlike other accused convicted by this Court, Mr Al Mahdi is not charged with crimes against persons but with a crime against property. In the view of the Chamber, even if inherently grave, crimes against property are generally of lesser gravity than crimes against persons.Footnote 123

78. With regard to the extent of the damage caused, the Chamber recalls that most of the 10 sites were completely destroyed.Footnote 124 Moreover, the attack was carefully plannedFootnote 125 and lasted approximately 10 days.Footnote 126 Additionally, the impact of the attack on the population was heightened by the fact that it was relayed in the media.Footnote 127 The Chamber also notes the testimony of P-431 (a Malian expert in cultural matters) and P-151 (a UNESCO witness), who explained that Timbuktu was an emblematic city with a mythical dimension and that it played a crucial role in the expansion of Islam in the region. Timbuktu is at the heart of Mali's cultural heritage, in particular thanks to its manuscripts and to the mausoleums of the saints.Footnote 128 The mausoleums reflected part of Timbuktu's history and its role in the expansion of Islam. They were of great importance to the people of Timbuktu, who admired them and were attached to them. They reflected their commitment to Islam and played a psychological role to the extent of being perceived as protecting the people of Timbuktu.Footnote 129 P-151 also described how the people of Timbuktu were collectively ensuring that the mausoleums remained in good condition in the course of symbolic maintenance events involving the entire community – women and elderly and young people.Footnote 130 The mausoleums were among the most cherished buildings of the city and they were visited by the inhabitants of the city, who used them as a place for prayer while some used them as pilgrimage locations.Footnote 131

79. Thus, the Chamber considers that the fact that the targeted buildings were not only religious buildings but had also a symbolic and emotional value for the inhabitants of Timbuktu is relevant in assessing the gravity of the crime committed.

80. Furthermore, all the sites but one (the Sheikh Mohamed Mahmoud Al Arawani Mausoleum) were UNESCO World Heritage sites and, as such, their attack appears to be of particular gravity as their destruction does not only affect the direct victims of the crimes, namely the faithful and inhabitants of Timbuktu, but also people throughout Mali and the international community.Footnote 132 The Chamber notes the testimony of P-431, who indicated that the people of Timbuktu protested against the destruction and refused to see the mausoleums razed to the ground. The witness testified that destroying the mausoleums, to which the people of Timbuktu had an emotional attachment, was a war activity aimed at breaking the soul of the people of Timbuktu. In general, the population of Mali, who considered Timbuktu as a source of pride, were indignant to see these acts take place.Footnote 133 Moreover, P-151 described how the entire international community, in the belief that heritage is part of cultural life, is suffering as a result of the destruction of the protected sites.Footnote 134

81. Lastly, the Chamber notes that the crime was committed for religious motives.Footnote 135 Indeed, during the period they ruled over the territory of Timbuktu, Ansar Dine and AQIM took measures to impose their religious edicts on the population.Footnote 136 The creation of the Hesbah, which was headed by Mr Al Mahdi, was meant precisely to eradicate any visible vice it identified in Timbuktu.Footnote 137 As established in the present Judgment, when the leaders of Ansar Dine discovered the practices of the inhabitants of Timbuktu, they led a campaign explaining what should and should not be done with the mausoleums. In the end they decided to destroy the sites in order to stop these prohibited practices.Footnote 138 The Chamber considers that the discriminatory religious motive invoked for the destruction of the sites is undoubtedly relevant to its assessment of the gravity of the crime.

82. The Chamber concludes that the crime for which Mr Al Mahdi is convicted is of significant gravity.

2. Mr Al Mahdi's culpable conduct

83. In addressing Mr Al Mahdi's culpable conduct the Chamber has considered the following Rule 145(1)(c) criteria: his degree of participation, his degree of intent and, to a certain extent, the means employed to execute the crime.

84. The Chamber recalls that it has found that Mr Al Mahdi committed, jointly with others, the crime of intentionally attacking the protected objects mentioned earlier. The Chamber notes that Mr Al Mahdi played an essential role in the execution of the attack. As the head of the Hesbah,Footnote 139 he was entrusted with executing the common plan. He organised all the logistics of the attack, oversaw the entire operation, supervised its execution, decided in which order the sites should be destroyed, collected and distributed the necessary tools, provided logistical and moral support to the direct perpetrators and supervised them, and was present at every site.Footnote 140

85. In relation to Mr Al Mahdi's intent, the Chamber further notes that, in addition to attending the destruction of each site, Mr Al Mahdi personally participated in the destruction of at least five of the sites.Footnote 141 Moreover, he justified the necessity of the attack by writing a sermon that was read before the attack and by giving public speeches as the destruction was occurring.Footnote 142

i. Absence of aggravating circumstances

86. The Chamber is not convinced by the Prosecution's submission that Mr Al Mahdi abused his power and official capacity as head of the Hesbah and that this is an aggravating circumstance.Footnote 143 Indeed, in line with the Appeals Chamber's jurisprudence,Footnote 144 the Chamber considers that the mere fact that Mr Al Mahdi committed the crime in this position does not as such constitute an aggravating circumstance. Furthermore, as discussed below,Footnote 145 in his capacity as head of the Hesbah, Mr Al Mahdi initially advised against the destruction of the buildings.

87. In relation to the Prosecution's argumentFootnote 146 that the fact that the crime affected multiple victims is an aggravating circumstance, the Chamber has already taken into account the far-reaching impact of the crime committed by Mr Al Mahdi in its assessment of the gravity of the crime and cannot therefore consider it as an aggravating circumstance.Footnote 147

88. Similarly, the Chamber has already considered the religious nature of the attack as part of its assessment of the gravity of the crime.Footnote 148 Accordingly it cannot be considered as an aggravating circumstance.

ii. Mitigating circumstances: reluctance to commit the crime and means of execution

89. The Chamber notes that, despite accepting the decision to destroy the sites and his full implication in its commission, Mr Al Mahdi was initially reluctant to destroy them. The Chamber recalls that it has found that, having observed the practice of the population of Timbuktu, Mr Al Mahdi indicated that, even if it was widely accepted among the Islamic legal community that such practices were prohibited, it would be preferable not to destroy the mausoleums so as to preserve good relations with the population of Timbuktu.Footnote 149 The Chamber finds that this reluctance is of some relevance for the determination of the sentence and attaches weight to it.

90. The Chamber clarifies that, contrary to the Defence's submissions,Footnote 150 the fact that Mr Al Mahdi committed the crime as part as an organised group does not constitute a mitigating circumstance. As established in the present Judgment,Footnote 151 once the decision to destroy the sites had been taken by other members of the group, Mr Al Mahdi fully endorsed it and he was fully implicated in the execution of the attack.

91. Furthermore, the Chamber notes that, except for the destruction at the Djingareyber mosque, for which he recommended that a bulldozer be used,Footnote 152 Mr Al Mahdi advised against using a bulldozer at all the other sites so as not to damage the graves next to the mausoleumsFootnote 153 and made sure that the attackers showed respect for the constructions next to the mausoleums while carrying out the attack.Footnote 154

92. With regard to Mr Al Mahdi's alleged lack of preparation for assuming responsibilities as head of the Hesbah,Footnote 155 the Chamber notes that the Defence does not make any effort to support this argument and therefore rejects it.

93. In sum, the Chamber considers that Mr Al Mahdi's initial reluctance to destroy the sites, as well as his recommendation not to use a bulldozer, do constitute mitigating circumstances.

3. Mr Al Mahdi's individual circumstances

94. In this section, the Chamber addresses all relevant circumstances that are not directly related to the crime committed or to Mr Al Mahdi's culpable conduct.

i. Age, education and background, social and economic condition and conduct in detention of Mr Al Mahdi

95. The Chamber has noted the statements of the two defence witnesses – both of whom have known Mr Al Mahdi for much of his life – who indicated that Mr Al Mahdi is an intelligent and very knowledgeable manFootnote 156 and that he assisted many of the poor communities of Timbuktu, including the community of the black Tuaregs, to which he did not belong.Footnote 157

96. The Chamber does not consider that Mr Al Mahdi's age and economic background are of relevance. Furthermore, an absence of prior convictions is a fairly common feature among individuals convicted by international tribunals and shall not, contrary to Defence's submission,Footnote 158 be counted as a relevant mitigating circumstance. Additionally, the Chamber does not intend to give any weight, be it aggravating or mitigating, to the fact that Mr Al Mahdi was a scholar and expert in religious matters, irrespective of the evidence of his positive role in his community before the take-over of the city by Ansar Dine.Footnote 159

97. Despite serious security concerns for his family, whom he has not seen since his transfer to the Court,Footnote 160 Mr Al Mahdi has been behaving in an irreproachable manner in detention and made a statement stating his appreciation of the manner in which he had been treated by the Court as a whole.Footnote 161 The Chamber considers that this factor is relevant, despite it being a legitimate expectation of any detainee, and attributes limited weight to it. Similarly, the Chamber accepts the Defence's argumentsFootnote 162 that Mr Al Mahdi's admission of guilt and cooperation with the Prosecution, as discussed further below, show that he is likely to successfully reintegrate into society and accords a limited weight to them.

ii. Admission of guilt

98. The Chamber notes that Mr Al Mahdi admitted his guilt. The Chamber further observes that Mr Al Mahdi took responsibility for his actions as early as the first day of his interviews with the Prosecution.Footnote 163 Subsequently, the parties reached an agreement sufficiently early in the proceedings, namely before the confirmation of charges,Footnote 164 to help substantially speed up the proceedings.

99. Additionally, not only did Mr Al Mahdi accept his responsibility but he also provided a detailed account of his actions,Footnote 165 facilitating the Chamber's establishment of the facts of the case.

100. The Chamber considers that an admission of guilt is undoubtedly a mitigating circumstanceFootnote 166 and gives it substantial weight. In this regard, the Chamber notes that the admission was made early, fully and appears to be genuine, led by the real desire to take responsibility for the acts he committed and showing honest repentance. This admission of guilt undoubtedly contributed to the rapid resolution of this case, thus saving the Court's time and resources and relieving witnesses and victims of what can be a stressful burden of giving evidence in Court.Footnote 167 Moreover, this admission may also further peace and reconciliation in Northern Mali by alleviating the victims’ moral suffering through acknowledgement of the significance of the destruction. Lastly, such an admission may have a deterrent effect on others tempted to commit similar acts in Mali and elsewhere. This said, the Chamber notes that this admission is made against a backdrop of overwhelming evidence pointing to Mr Al Mahdi's guilt.

iii. Cooperation

101. In addition to admitting his guilt in full, Mr Al Mahdi has been cooperating with the Prosecution substantially, as detailed at length by witness P-182. The Chamber notes that this cooperation has been spontaneous and started as early as the first day of his interviews.Footnote 168 Mr Al Mahdi responded in an honest manner and his cooperation enabled the Prosecution to corroborate, clarify and specify information it already had in its possession.Footnote 169 During his interviews with the Prosecution, Mr Al Mahdi did not show any reluctance in touching upon his own acts.

102. The Chamber is also mindful of the fact that Mr Al Mahdi has cooperated despite being fully aware that his cooperation with the Prosecution increased the security profile of his family. Accordingly, the Chamber considers that Mr Al Mahdi's substantial cooperation with the Prosecution is an important factor going to the mitigation of the sentence to be imposed.Footnote 170

iv. Expression of remorse and empathy for victims

103. The Chamber notes that, as early as the first day of trial, Mr Al Mahdi has expressed genuine remorse for his acts.Footnote 171 The Chamber notes that Mr Al Mahdi has expressed his ‘deep regret and great pain’.Footnote 172 He insisted that the remorse he was feeling was for the damage caused to his family, his community in Timbuktu, his country and the international community. Not only did Mr Al Mahdi categorically express his remorse, he made the solemn promise that ‘this was the first and the last wrongful act [he] will ever commit’.Footnote 173 Mr Al Mahdi also indicated that he was willing to ‘accept the judgment of the Chamber’.Footnote 174 Lastly, Mr Al Mahdi called on people not to become involved in the same acts that he was involved in ‘because they are not going to lead to any good’ for humanity.Footnote 175

104. In addition to expressing remorse, and contrary to the submission of the LRV,Footnote 176 the Chamber does note that Mr Al Mahdi has expressed sentiments of empathy towards the victims of the crime he committed. The Chamber refers to the example of actions showing this empathy cited by the Defence, such as Mr Al Mahdi's offer to the imam of the Sidi Yahia Mosque to reimburse the cost of the door.Footnote 177

105. The Chamber considers that such expression of remorse and empathy to the victims is a substantial factor going to the mitigation of the sentence.

C. Determination of the sentence

106. The Prosecution submits that Mr Al Mahdi's sentence should be between nine and eleven years.Footnote 178 The Defence made extensive submissions on the adequate assessment of the gravity of the crime charged, the absence of aggravating circumstances and the importance of the mitigating circumstances in this case.Footnote 179 The LRV requests that the sentence handed down to Mr Al Mahdi be severe and exemplary.Footnote 180

107. The Chamber stresses that sentencing an individual for crimes he committed is a unique exercise for which comparison with different cases can be of very limited relevance only, if any.Footnote 181 The Chamber considers the Defence's arguments about the sentences in other casesFootnote 182 to be irrelevant. These sentences were based on vastly different circumstances, including the applicable modes of liability and sources of law.Footnote 183

108. As set out above, the Chamber must balance all the relevant factors, including any mitigating and aggravating circumstances, and consider the circumstances of both the convicted person and the crime. In order to sufficiently and adequately reflect the moral and economic harmFootnote 184 suffered by the victims of the present case and fulfil the objectives of sentencing, the Chamber must impose a sentence that is proportionate to the gravity of the crime and the individual circumstances and culpability of Mr Al Mahdi.Footnote 185

109. The Chamber finds that the crime for which Mr Al Mahdi is being convicted is of significant gravity. This said, the Chamber has found no aggravating circumstances and five mitigating circumstances, namely: (i) Mr Al Mahdi's admission of guilt;Footnote 186 (ii) his cooperation with the Prosecution;Footnote 187 (iii) the remorse and the empathy he expressed for the victims;Footnote 188 (iv) his initial reluctance to commit the crime and the steps he took to limit the damage caused;Footnote 189 and (v), even if of limited importance, his good behaviour in detention despite his family situation.Footnote 190 Taking into account all these factors, the Chamber sentences Mr Al Mahdi to 9 years of imprisonment.

110. Lastly, noting that none of the parties or participants requests the imposition of a fine or order of forfeiture under Article 77(2) of the Statute and Rules 146 and 147 of the Rules, the Chamber finds that imprisonment is a sufficient penalty.

111. Pursuant to Article 78(2) of the Statute, Mr Al Mahdi is entitled to have deducted from his sentence the time he has spent in detention in accordance with an order of this Court, namely since his arrest pursuant to the warrant of arrest issued on 18 September 2015.Footnote 191

PROSECUTOR V. AHMAD AL FAQI AL MAHDI: REPARATIONS ORDER (INT'L. CRIM. CT.)

This text was reproduced and reformatted from the text available at the International Criminal Court website (visited January 8, 2018), https://www.icc-cpi.int/CourtRecords/CR2017_05117.PDF.

Original: English

No.: ICC-01/12-01/15

Date: 17 August 2017

TRIAL CHAMBER VIII

Before: Judge Raul C. Pangalangan, Presiding Judge

Judge Antoine Kesia-Mbe Mindua

Judge Bertram Schmitt

SITUATION IN THE REPUBLIC OF MALI

IN THE CASE OF THE PROSECUTOR v. AHMAD AL FAQI AL MAHDI

Public

Reparations Order

To be notified in accordance with Regulation 31 of the Regulations of the Court to:

Contents

  1. I. Procedural history ……… 50

  2. II. Overview ……… 50

  3. III. The importance of international cultural heritage ……… 52

  4. IV. Principles on reparations and applicable law ……… 53

    1. A. Relevant victims ……… 54

    2. B. Harm suffered, types of reparations and modalities ……… 55

      1. 1. Harm ……… 55

      2. 2. Types and modalities of reparations ……… 55

    3. C. Scope of liability ……… 56

  5. V. Order for reparations against Mr Al Mahdi ……… 56

    1. A. Relevant victims ……… 56

    2. B. Kinds of harm suffered, types of reparations and modalities ……… 57

      1. 1. Damage to the Protected Buildings ……… 57

      2. 2. Consequential economic loss ……… 59

      3. 3. Moral harm ……… 61

      4. 4. Bodily harm ……… 63

      5. 5. Damage to property other than the Protected Buildings ……… 63

      6. 6. Conclusion ……… 64

    3. C. Scope of liability ……… 65

      1. 1. Damage to the Protected Buildings ……… 66

      2. 2. Consequential economic loss ……… 66

      3. 3. Moral harm ……… 67

      4. 4. Total liability ……… 68

  6. VI. Implementation ……… 68

  7. VII. Disposition ……… 71

TRIAL CHAMBER VIII (‘Chamber’) of the International Criminal Court (‘Court’ or ‘ICC’) issues the following ‘Reparations Order’ in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi, having regard to Articles 75 and 79 of the Rome Statute (‘Statute’), Rules 85 and 94-99 of the Rules of Procedure and Evidence (‘Rules’), Regulation 117 of the Regulations of the Court and Regulations 49-72 of the Regulations of the Trust Fund for Victims (‘Regulations of the TFV’).

I. Procedural history

1. On 27 September 2016, following an admission of guilt, the Chamber convicted Mr Al Mahdi of the war crime of attacking protected objects as a co-perpetrator under Articles 8(2)(e)(iv) and 25(3)(a) of the Statute. Ten protected objects were attacked in Timbuktu, Mali, between around 30 June 2012 and 11 July 2012 (‘Protected Buildings’): (i) the Sidi Mahamoud Ben Omar Mohamed Aquit Mausoleum; (ii) the Sheikh Mohamed Mahmoud Al Arawani Mausoleum; (iii) the Sheikh Sidi El Mokhtar Ben Sidi Mouhammad Al Kabir Al Kounti Mausoleum; (iv) the Alpha Moya Mausoleum; (v) the Sheikh Mouhamad El Mikki Mausoleum; (vi) the Sheikh Abdoul Kassim Attouaty Mausoleum; (vii) the Sheikh Sidi Ahmed Ben Amar Arragadi Mausoleum; (viii) the Sidi Yahia Mosque door; and the two mausoleums adjoining the Djingareyber Mosque, namely the (ix) Ahmed Fulane Mausoleum and (x) Bahaber Babadié Mausoleum. The Chamber sentenced Mr Al Mahdi to nine years of imprisonment.Footnote 1

2. On 29 September 2016, the Chamber set a reparations phase calendar (‘Calendar Decision’).Footnote 2 The Chamber granted extensions of time to this calendar as deemed necessary during the reparations proceedings.Footnote 3

3. On 25 and 31 October 2016, the Chamber granted applications by the United Nations Educational, Scientific and Cultural Organization (UNESCO) and other amici curiae to file submissions on reparations related issues.Footnote 4 The Chamber granted all such applications it received during the reparations phase.

4. On 2 December 2016, the Chamber received general submissions on the reparations proceedings from the: (i) Trust Fund for Victims (‘TFV’);Footnote 5 (ii) accepted amici curiae, including UNESCO;Footnote 6 (iii) Legal Representative of Victims (‘LRV’);Footnote 7 (iv) Defence for Mr Al Mahdi (‘Defence’);Footnote 8 (v) Office of the Prosecutor (‘Prosecution’)Footnote 9 and (vi) Registry.Footnote 10 The Malian authorities were invited to file a general submission on reparations, but elected not to do so.

5. On 16 December 2016, and in accordance with a deadline set by the Chamber,Footnote 11 the Registry transmitted its first batch of victim applications for reparations.Footnote 12 Confidential versions of these applications (redacting the applicants’ names and identifying information) were made available to the Defence on 22 December 2016. The LRV supplemented these forms with supporting materials on 24 March 2017,Footnote 13 and on the same date the Registry filed additional applications in the case record.Footnote 14 Confidential redacted versions of these further materials were made available to the Defence on 24 April 2017. In total, 139 reparations applications (by 137 individuals and two organisations) are currently before the Chamber.Footnote 15

6. On 19 January 2017, following receipt of both a list of proposed experts solicited from the RegistryFootnote 16 and corresponding submissions from the LRV, Defence and Prosecution,Footnote 17 the Chamber appointed four experts to assist in the determination of reparations.Footnote 18

7. On 28 April 2017, the Court received the reports from the appointed experts.Footnote 19 Confidential redacted versions of the reports were made available to the parties on 3 May 2017. For the purposes of reparations proceedings, the ‘parties’ are understood to be the Defence and LRV.

8. On 16 June 2017, the Chamber received final submissions on reparations from the LRV,Footnote 20 DefenceFootnote 21 and TFV.Footnote 22

II. Overview

9. The LRV, representing the 139 reparations applicants, submits that the Chamber should adopt collective reparation measures for the upkeep, restoration and rehabilitation of the Protected Buildings. The LRV also seeks individual reparation measures aimed at monetary compensation for the material and mental harm suffered by the victims.Footnote 23

10. The specific relief sought by the LRV is for the Chamber to:

  1. (i) Grant the individual reparations sought by the 137 natural person applicants;

  2. (ii) Grant the reparations sought individually for each of the Protected Buildings to repair the spiritual harm and facilitate their daily maintenance;

  3. (iii) Grant each victim applicant a further 250 euros per person to reflect the collective harm suffered;

  4. (iv) Grant the Malian State a symbolic one euro award for the material and moral harm suffered;

  5. (v) Grant the reparations sought by organisation a/35140/16;Footnote 24

  6. (vi) Decide on the measures of collaboration between the LRV and TFV for the implementation of the award; and

  7. (vii) Allow the LRV to draw up plans for the implementation of the award and to report back to the TFV and possibly the Chamber.Footnote 25

11. The Defence submits that primarily collective reparations are appropriate, as no bodily harm was suffered. The Defence argues that financial losses must be proven and limited to the period during which the destroyed monuments had not yet been rebuilt by UNESCO. The Defence also submits that psychological harm must be proven by way of showing a direct kinship between the people claiming the harm and the deceased whose mausoleums were attacked.Footnote 26

12. The specific relief sought by the Defence is for the Chamber to:

  1. (i) Limit its liability assessment only to the acts of which Mr Al Mahdi was convicted;

  2. (ii) For indirect victims, to thoroughly verify their link to the direct victims and the harm they allege;

  3. (iii) Award predominantly collective reparations, on which the Defence may state its views on the identification of beneficiaries;

  4. (iv) Order that individual reparations be scrupulously assessed on a case-by-case basis, affording the Defence the opportunity to make observations in accordance with the principle of adversarial proceedings;

  5. (v) Order that the apportionment of reparations be without discrimination between victims who suffered similar harm and that there be no double-counting;

  6. (vi) Order that Mr Al Mahdi's apology given during the trial be conveyed to Timbuktu, Mali and the international community;

  7. (vii) Order that modern and traditional justice mechanisms be applied to the extent possible;

  8. (viii) Determine that reparation for the people of Timbuktu suffices as reparation for the harm suffered by the people of Mali and the international community;

  9. (ix) Determine the amount of repairs, with due regard for the repair work already done by UNESCO and the fact that Mr Al Mahdi cannot be held liable for the ‘extremely high figures’ to which the Chamber's appointed experts make reference;

  10. (x) Rule that the monitoring of Mr Al Mahdi's assets for purposes of recovering from him any monies which the TFV may disburse be limited to his nine-year term of imprisonment, and that said recovery shall not apply to assets acquired after expiration of the sentence;

  11. (xi) Order that the Defence shall be entitled to comment on all aspects of the reparations proceedings, including the sum-total of the award and the plan for reparations; and

  12. (xii) Order that a less redacted version of all applications for reparations be disclosed to the Defence and that the reparation process be as transparent as possible.Footnote 27

III. The importance of international cultural heritage

13. The Chamber considers it necessary to address the importance of cultural heritage, given that it is an essential component of the charges Mr Al Mahdi is convicted of.

14. The international community has recognised in various legal instruments the importance of the human right to cultural life and its physical embodiments. These instruments condemn the destruction of cultural heritage, including in situations of conflict.Footnote 28 The Statute provides for punishment of, inter alia, attacks on cultural propertyFootnote 29 and for reparations for victims of such attacks. As discussed by one of the experts, cultural heritage plays a central role in the way communities define themselves and bond together, and how they identify with their past and contemplate their future.Footnote 30 UNESCO states that ‘the loss of heritage during times of conflict can deprive a community of its identity and memory, as well as the physical testimony of its past. Those destroying cultural heritage seek to disrupt the social fabric of societies’.Footnote 31

15. Cultural heritage is to be understood as encompassing the resources enabling cultural identification and development processes of individuals and groups, which they, implicitly or explicitly, wish to transmit to future generations.Footnote 32 It includes tangible heritage composed of sites, structures and remains of archaeological, historical, religious, cultural or aesthetic value, as well as intangible heritage comprising traditions, customs and practices, knowledge, vernacular or other languages, forms of artistic expression and folklore.Footnote 33 Cultural heritage is considered internationally important regardless of its location and origin.

16. Cultural items considered as cultural heritage are objects, monuments and sites that are considered to be testimonies of human creativity and genius. It is this exceptional quality which warrants their labelling as cultural heritage.Footnote 34 Cultural heritage is important not only in itself, but also in relation to its human dimension.Footnote 35 Cultural property also allows a group to distinguish and identify itself before the world community.Footnote 36

17. World cultural heritage is a most important category. Greater interest vested in an object by the international community reflects a higher cultural significance and a higher degree of international attention and concern.Footnote 37

18. The importance of cultural heritage to communities is illustrated by the fact that the communities themselves often request that the protection of their cultural landmarks be prioritised, even in situations of violence where human life is at risk. As a former Director for Legal Protection of Cultural Heritage explained in a remark quoted by one of the Chamber's amici curiae:

We are often asked the question, ‘Why protect monuments when people are dying?’ The reason is, the people who are dying ring us up and say, ‘Please protect our monuments.’ If people feel strongly about their heritage, we don't feel the international community can simply stand back and say, ‘It's not important. As long as you're not dying, that's all that counts’.Footnote 38

19. The attack against the Protected Buildings not only destroyed and damaged physical structures. Its impact ‘rippled out into the community and diminished the link and identity the local community had’ with such valuable cultural heritage.Footnote 39

20. A legal mechanism of particular significance in this regard is the World Heritage Convention,Footnote 40 created for the protection of cultural and natural heritage of outstanding universal value.Footnote 41 Inscription on the World Heritage List requires a very strict procedure whereby it must be shown, inter alia, that the object or site at stake has an exceptional quality that transcends national borders.Footnote 42

21. As pointed out by one of the Chamber's appointed experts, Timbuktu was inscribed on the World Heritage List in 1988 because: (i) the mosques and holy places of Timbuktu played an essential role in the spread of Islam in Africa at an early period; and (ii) the three great mosques of Timbuktu, restored by the Qadi Al Aqib in the 16th century, bear witness to the golden age of the intellectual and spiritual capital at the end of the Askia Dynasty.Footnote 43

22. Because of their purpose and symbolism, most cultural property and cultural heritage are unique and of sentimental value. As a result, they are not fungible or readily replaceable.Footnote 44 The destruction of international cultural heritage thus ‘carries a message of terror and helplessness; it destroys part of humanity's shared memory and collective consciousness; and it renders humanity unable to transmit its values and knowledge to future generations’.Footnote 45 It is an irreplaceable loss that negates humanity.

IV. Principles on reparations and applicable law

23. Article 75(1) of the Statute provides that:

[t]he Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.

24. The Court has relied upon the UN Basic Principles of Justice for Victims of Crime and Abuse of PowerFootnote 46 and the UN Basic Principles on Reparations for Victims (‘UN Basic Principles’)Footnote 47 to fulfil its Article 75(1) obligation to ‘establish principles relating to reparations.’

25. In the Lubanga case, the Appeals Chamber established reparations principles drawing on the UN Basic Principles and held that ‘principles should be general concepts that, while formulated in light of the circumstances of a specific case, can nonetheless be applied, adapted, expanded upon, or added to by future Trial Chambers’.Footnote 48 In the Katanga Reparations Order, Trial Chamber II relied heavily on principles discussed in the Lubanga Reparations AO.Footnote 49

26. The Chamber finds that reparations of crimes against cultural heritage are adequately addressed under the same framework and thus sees no reason to deviate from the relevant principles formulated by the Appeals Chamber in Lubanga.Footnote 50 They are briefly recalled in the present order.

27. Reparations fulfil two main purposes that are enshrined in the Statute: they oblige those responsible for serious crimes to repair the harm they caused to the victims and they enable the Court to ensure that offenders are held to account for their acts.Footnote 51

28. Reparations in the present case are designed – to the extent achievable – 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. Reparations may also assist in promoting reconciliation between the victims of the crime, the affected communities and the convicted person.Footnote 52

29. As a general principle, all victims are to be treated fairly and equally as regards reparations, irrespective of whether they participated in the trial proceedings. The victims of the crime at bar shall have equal access to information relating to the reparations proceedings as part of their entitlement to fair and equal treatment throughout the proceedings.Footnote 53 This said, during the implementation phase it may be appropriate to prioritise reparations to those victims who were the most harmed by the convicted person's conduct.Footnote 54

30. Victims should be able to participate throughout the reparations process and they should receive adequate support in order to make their participation substantive and effective.Footnote 55

31. Reparations shall be granted to victims without adverse distinction on the grounds of gender, age, race, colour, language, religion or belief, political or other opinion, sexual orientation, national ethnic or social origin, wealth, birth or other status.Footnote 56

32. When deciding on reparations, the Court shall treat the victims with humanity and shall respect their dignity and human rights, and it will implement appropriate measures to ensure their safety, physical and psychological well- being and privacy, as provided for in Rules 87 and 88 of the Rules.Footnote 57

33. It is of paramount importance that victims receive appropriate, adequate and prompt reparations.Footnote 58

34. Whenever possible, reparations should reflect local cultural and customary practices unless these are discriminatory or exclusionary or they deny victims equal access to their rights.Footnote 59 As indicated by one of the Chamber's appointed experts, a gender-sensitive approach to the protection of cultural heritage and to the combating of its destruction is also particularly essential because women and girls may face gender-specific risks, challenges and discrimination in gaining access to and defending cultural heritage.Footnote 60

35. Reparations need to support programmes that are self-sustaining, in order to enable victims, their families and communities to benefit from these measures for a long time. If economic benefits are to be paid, these should also be allocated, if possible, by periodic instalments rather than by way of a lump payment.Footnote 61

36. The Chamber emphasises that the present order does not exonerate States from their separate obligations, under domestic law or international treaties, to provide reparations to their citizens. Further, States Parties have the obligation to fully cooperate during all stages of reparations proceedings, in particular during the implementation phase, where their cooperation is especially necessary.Footnote 62

37. The reparations ordered cannot be prejudicial to or inconsistent with the rights of Mr Al Mahdi.Footnote 63

38. Moreover, the Appeals Chamber has held that a reparations order must contain, at a minimum, five essential elements: (i) it must be directed against the convicted person; (ii) it must establish and inform the convicted person of his or her liability with respect to the reparations awarded in the order; (iii) it must specify and provide reasons for the type of reparations ordered, be they collective, individual or both; (iv) it must define the harm caused to direct and indirect victims as a result of the crimes of which the person was convicted, as well as identify the modalities of reparations that the Chamber considers appropriate in the circumstances of the specific case before it; and (v) it must identify the victims eligible to benefit from the awards for reparations or set out the criteria of eligibility based on the link between the harm suffered by the victims and the crimes of which the person was convicted.Footnote 64

A. Relevant victims

39. In its ‘Decision on Victim Participation at Trial and on Common Legal Representation of Victims’,Footnote 65 the Chamber ruled on the criteria to be met for individuals or organisations to be considered as victims. The Chamber sees no reason to deviate from its own jurisprudence at the reparations phase, noting however the different standard of proof to be met by applicants for reparations.Footnote 66 As far as the legal criteria are concerned, the Chamber incorporates the applicable law previously set by way of referenceFootnote 67 and will only recall it here briefly.

40. Pursuant to Rule 85(a) of the Rules, reparations may be granted to direct and indirect individual victims, provided that the harm they suffered is personal.

41. Pursuant to Rule 85(b) of the Rules, reparations may also be granted to legal entities that are direct victims of the crime committed. Legal entities ‘may include, inter alia, non-governmental, charitable and non-profit organisations, statutory bodies including government departments, public schools, hospitals, private education institutes […], companies, telecommunications firms, institutions that benefit members of the community […] and other partnerships’.Footnote 68

B. Harm suffered, types of reparations and modalities

1. Harm

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. The Chamber is not limited to admissible evidence for this purpose, nor need it limit itself to the kinds of harm identified in the Judgment.Footnote 69

43. The Chamber endorses the definition of ‘harm’ adopted by the Appeals Chamber in the Lubanga case, namely as denoting ‘hurt, injury and damage’. For individuals, the harm does not necessarily need to have been direct, but it must have been personal to the victim. Harm may be material, physical or psychological. Organisations must demonstrate direct harm to their properties. For moral harm specifically, moral harm should be estimated without consideration of the economic situation of the local population.Footnote 70

44. It must be established that the crime committed by Mr Al Mahdi is the actual (‘but/for’) and ‘proximate’ cause of the harm for which reparation is sought.Footnote 71

‘Proximate cause’ is a cause that is legally sufficient to result in liability,Footnote 72 and in assessing proximate cause the Chamber will consider, inter alia, whether it was reasonably foreseeable that the acts and conduct underlying the conviction would cause the resulting harm. The standard of proof to be met in establishing this causal link is that of a balance of probabilities.Footnote 73

2. Types and modalities of reparations

45. Reparations can either be individualFootnote 74 or collective.Footnote 75 They are not mutually exclusive and can be awarded concurrently. Individual businesses and families may also receive financial support in the implementation of collective reparations.Footnote 76 Reparations can also be awarded through the TFV to an organisation,Footnote 77 but this is not an alternative to awards for individual and/or collective reparations.

46. Reparations ‘modalities’ are the specific methods identified to address the kinds of harm requiring reparations. With regard to modalities, Article 75 of the Statute gives a non-exhaustive list, including restitution, compensation and rehabilitation.

47. Compensation is something, typically money, awarded to one or more victims in recognition of the harm they suffered.

48. Rehabilitation is aimed at restoring the victims and their communities to their former condition. Rehabilitation may include, for instance, economic development or social, medical or legal services.

49. Reparations can also be symbolic in character. Symbolic reparations may be particularly appropriate to repair harm caused to a community.

C. Scope of liability

50. The present order is made against Mr Al Mahdi only. The convicted person's liability for reparations must be proportionate to the harm caused and, inter alia, to his or her participation in the commission of the crimes for which he or she was found guilty, in the specific circumstances of the case.Footnote 78

V. Order for reparations against Mr Al Mahdi

A. Relevant victims

51. In the present section, the Chamber explains who it considers to be the relevant victims for the purposes of its assessments below. In its Judgment, the Chamber has concluded that the destruction of the Protected Buildings affected not only the direct victims of the crimes, namely the faithful and inhabitants of Timbuktu, but also people throughout Mali and the international community.Footnote 79

52. However, the Chamber notes already that the degree and nature of harm suffered varies for each of the three groups identified. It is self-evident that the community of Timbuktu suffered disproportionately more harm as a result of the attack on the Protected Buildings.Footnote 80 The Chamber only received reparations applications pertaining to the community of Timbuktu – no application has been submitted solely for the interests of the national or international community beyond Timbuktu. Notably, UNESCO itself did not submit any application for reparation and stated instead that ‘local communities […] have been the principal victims’.Footnote 81

53. Nevertheless, the Chamber is well aware of 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. The Chamber finds it appropriate to acknowledge the suffering endured by the Malian community and the international community as a whole as a result of the destruction of the Protected Buildings – all but one of which were UNESCO World Heritage Sites. In this respect, the Chamber endorses the statement of one of the experts, namely that ‘the international community should not be forgotten […] as a collective to which harm was done’.Footnote 82 The expert further states

[V]arying degrees of access to and enjoyment of cultural heritage may be recognised, taking into consideration the diverse interests of individuals and groups according to their relationship with specific cultural heritages, so it may make sense to prioritize reparation to those groups closer to the heritage in question while making sure to recognize broader connections.Footnote 83

54. The Chamber considers that addressing the harm suffered by the community of Timbuktu will also effectively address the broader harm suffered by Malians and the international community as a whole. In this respect, the Chamber fully endorses the view expressed by one of its appointed experts:

The persons harmed by the crimes for which Al Mahdi is responsible include the guardian families who were responsible for the maintenance of the sites, the other faithful inhabitants of Timbuktu, the rest [of] the population in Mali, and the international community. However, the latter two groups (the broader Malian population and the international community), do not require additional reparative measures, as those directed at the local population of Timbuktu inherently will effectively address the broader harm suffered by Malians and by the international community as a whole. In other words, the measures directed at the more specific harm will by necessary implication addressed [sic] the more general harm.Footnote 84

55. If the Chamber limits its harm assessment only to the Timbuktu community, that will also maximise the effect of the reparations awarded in the present case. In the words of another of the appointed experts: ‘[S]ince ultimately it is the local population that is in the best position to preserve the heritage in question, therefore the measures of reparation might most sensibly be aimed at strengthening their capacity to do so’.Footnote 85

56. Hence, the Chamber limits its assessment of the various kinds of harm in the next sub-section only to the harm suffered by or within the community of Timbuktu, i.e. organisations or persons ordinarily residing in Timbuktu at the time of the commission of the crimesFootnote 86 or otherwise so closely related to the city that they can be considered to be part of this community at the time of the attack.

B. Kinds of harm suffered, types of reparations and modalities

57. In this section, the Chamber will analyse the different kinds of harm alleged in the information before it. Recalling that reparations findings are not limited to admissible evidence,Footnote 87 the Chamber notes that in its assessment it has freely considered all submissions, applications,Footnote 88 supporting materials, expert reports and other relevant information. For each kind of harm, the Chamber will: (i) summarise the relevant views of the victim applicants; (ii) summarise any other relevant information received (above all that contained in the reports of the appointed experts); (iii) conclude whether the crime committed by Mr Al Mahdi is the actual and proximate cause of the harm; (iv) consider any submissions from the parties which diverge from how the Chamber intends to specify the reparation types and modalities; and (v) specify the reparation types and modalities, if any, it considers appropriate for the harm in question.

58. Preliminarily, the Chamber notes the dire security situation in TimbuktuFootnote 89 and the corresponding difficulties potential victims faced in both filing their applications and supporting them. These difficulties are compounded by the emphasis on customary practices in managing life in Timbuktu,Footnote 90 which leads to the creation of relatively fewer official and business records. The Chamber has taken this into account when evaluating what the victims of Mr Al Mahdi's crimes can be reasonably expected to provide in support of their claims.

59. The Chamber also notes the Defence's argument that it is necessary for the Chamber to identify the specific eligible victims to be in a position to subsequently evaluate the harm suffered.Footnote 91 The Chamber rejects this argument to the extent that it means that reparations can be assessed only on the basis of individual victim applications. As regards individual reparations, and as discussed further below, the Regulations of the TFV specifically contemplate awarding individual reparations in cases when the Court does not identify individual beneficiaries.Footnote 92 As regards collective reparations, when considering whether the number of victims in a case makes a collective reparations award more appropriate, the Chamber is not limited to the number of reparations applicants before it.Footnote 93 To conclude otherwise when determining collective reparations would also be inconsistent with the Appeals Chamber conclusion that ‘certain crimes may have an effect on a community as a whole’ and ‘if there is a sufficient causal link between the harm suffered by members of that community and the crimes of which [the convicted person] was found guilty, it is appropriate to award collective reparations to that community, understood as a group of victims.’Footnote 94

1. Damage to the Protected Buildings

a) Property damaged in the attack

60. In the Judgment, the Chamber concluded that all the Protected Buildings were attacked and destroyed to one degree or another.Footnote 95 These buildings reflected part of Timbuktu's history. They were among the most cherished buildings in the city, and were perceived as protecting the population of Timbuktu.Footnote 96

61. The victims ask for reparations to restore, maintain and protect the Protected Buildings. The following extracts are taken from the translations of application forms:

  • • ‘I would like the ICC to give money or building materials for the upkeep of the mausoleums.’ Footnote 97

  • • ‘The Court must provide money to fix and care for (protect) the mausoleums. A wall should be built to protect the mausoleums.’ Footnote 98

  • • ‘I would like the Court to give money to help us build and maintain the holy sites. This will give us relief and help us make some progress.’ Footnote 99

  • • ‘In reparation for the harm, compensation to be used to support activities to foster resilience to the effects of the destruction, to overcome them and to re-establish stronger emotional and spiritual ties to this cultural property is desirable.’ Footnote 100

62. The Chamber received information that the loss of the Protected Buildings affected the entire community of Timbuktu.Footnote 101

63. Since the attacks, UNESCO – together with other stakeholders – has rebuilt or restored each of the Protected Buildings.Footnote 102 UNESCO does not ask for any reparations for itself, but it has made clear that it would support any ICC action aimed at assisting local communities.Footnote 103

64. The attacks on the Protected Buildings lie at the heart of this case and form the basis for Mr Al Mahdi's conviction. The Chamber is satisfied that Mr Al Mahdi's crime is the actual and proximate cause of the damage to the Protected Buildings.

65. The Defence submits that, when considering reparations for repairing the Protected Buildings, the Chamber should take into account the fact that they have been restored.Footnote 104 The Chamber is unconvinced and considers the fact that the Protected Buildings have been restored by UNESCO and others to have no impact on whether Mr Al Mahdi is liable for the damage caused.Footnote 105 Remedial efforts by a third party in the time elapsed between the destruction and the issuance of the reparations order do not alter the amount of damage originally done. To place undue weight on this fact would be to understate the amount of harm actually caused and the corresponding reparations required to remedy it. The fact that UNESCO has no intention of collecting any reparations is likewise immaterial. The Chamber will not speculate on the extent to which bona fide third parties may assert their rights against the convicted person once the reparations order is issued. The Chamber's only role at this point is to decide on the convicted person's liability, taking into account the scope and extent of any damage, loss or injury caused.Footnote 106 In the present case, the Chamber finds that Mr Al Mahdi is liable for the destruction of the Protected Buildings.

66. The Chamber also received information that certain graves directly adjacent to the Protected Buildings were damaged during Mr Al Mahdi's attack.Footnote 107 The Defence contests that Mr Al Mahdi can be held liable for any such damage.Footnote 108 The Chamber does consider the Defence arguments to be persuasive on this point. The Chamber has insufficiently precise information before it on which to determine the number of directly adjacent burial sites that may have been destroyed, the circumstances of their destruction or the costs of their restoration. None of the reparations applicants before the Chamber is asking specifically for reparations for this kind of damage, nor is the LRV seeking reparations on this basis in its relief sought. It must also be emphasised that the Chamber found in the Judgment that Mr Al Mahdi made efforts to prevent destruction to directly adjacent burial sites when attacking the Protected Buildings.Footnote 109 The Chamber is unable to conclude that Mr Al Mahdi's attack is the actual and proximate cause of the damage to any directly adjacent burial sites.

67. As for the types and modalities of reparations needed, the Protected Buildings belonged to the entire community of Timbuktu and their loss was felt by the community as a whole. The Chamber considers that collective reparations are the most appropriate way to address the damage caused. As for the modalities, the Chamber considers that the harm caused by the destruction of the Protected Buildings will be satisfactorily addressed by measures for their protection and maintenance. Noting that renovations have already been performed by UNESCO, the Chamber considers that the appropriate modality of reparations shall be measures aimed at rehabilitating the Protected Sites with effective measures to guarantee non-repetition of the attacks directed against them. These measures are to be taken to the extent possible and following consultations with government authorities as necessary. The Chamber emphasises that these reparations should be tailored to the individual concerns regarding each of the Protected Buildings.

b) Apology for the property damage

68. Certain applicants, the LRV, amici curiae and appointed experts stress that there are victims in the present case who view Mr Al Mahdi's apology as insufficient.Footnote 110

69. The Chamber recognises that it is ultimately up to each individual victim to decide whether he or she considers Mr Al Mahdi's apology to be sufficient. Some victims may already be satisfied with the apology given, and others will not be satisfied no matter what kind of further apologies are given. This is inevitable, and eminently understandable. But the Chamber must engage with the sufficiency of Mr Al Mahdi's apology on some level in order to determine what reparations are appropriate in the present case.

70. The Chamber has already concluded that it considered Mr Al Mahdi's apology to be genuine, categorical and empathetic.Footnote 111 The Chamber particularly recalls that Mr Al Mahdi recognised the suffering endured by Timbuktu, the people throughout Mali and the international community:

I am really sorry, I am really remorseful and I regret all the damage that my actions have caused. I regret what I have caused to my family, my community in Timbuktu, what I have caused my home nation, Mali, and I'm really remorseful about what I had caused the international community as a whole.Footnote 112

71. The Chamber does not consider that a further apology above and beyond what Mr Al Mahdi has already given to be necessary. However, as a symbolic measure to ensure that all victims have access to Mr Al Mahdi's apology, the Chamber orders the Registry to produce an excerpt of the video of Mr Al Mahdi's apologyFootnote 113 and post it on the Court's website with the corresponding transcript translated into the primary languages spoken in Timbuktu. If any of the victims wish to receive a hard copy of the apology in a language they fully understand and speak, the Registry shall make this available to them upon request. Further ways of using Mr Al Mahdi's existing apology may be advanced by the TFV during the implementation phase of the present order.

2. Consequential economic loss

72. When pronouncing Mr Al Mahdi's sentence, the Chamber concluded that Mr Al Mahdi caused economic harm.Footnote 114

73. The victims are asking for compensation for the effect the attacks on the Protected Buildings had on their livelihood. Some victims explain how their livelihoods exclusively depended upon the Protected Buildings: these include the guardians of the mausoleums, the maçons tasked with prominent responsibilities in maintaining themFootnote 115 and people whose businesses could not exist without the Protected Buildings. Others explain how their livelihoods have been indirectly harmed, noting the losses of tourism and economic activity in the years following the attack. The following extracts are taken from the translations of application forms:

  • • ‘Our [REDACTED]’s mausoleum was a source of economic income for us [REDACTED] because the gifts from the pilgrims were given to us.’ Footnote 116

  • • ‘Definite financial assistance is necessary because since the attack on the mausoleum there have been fewer pilgrims and therefore fewer donations.’ Footnote 117

  • • ‘Before the events, we […] used to benefit from donations by pilgrims to the site. Today we earn almost nothing.’ Footnote 118

  • • ‘Many people depend on the mausoleums for their livelihood, for example, imams, marabouts and caretakers. People came from all over the world to see the mausoleums and to receive blessings. They gave gifts, money, offerings and so on… This doesn't happen anymore because people are afraid to come to Timbuktu.’ Footnote 119

74. Expert reports and other submissions to the Chamber attest to direct economic losses caused by the attacks to those whose livelihoods were exclusively dependent on the mausoleums. Moreover, the Chamber received information that consequential economic loss was suffered as a result of the attack.Footnote 120

75. The Chamber is satisfied that Mr Al Mahdi's crime is both the actual and proximate cause of the 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 121

76. As indicated by the Chamber's experts,Footnote 122 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.

77. Nevertheless, the LRV argues that compensation should be given to all reparations applicants who suffered financial losses, and that a further 250 euros be granted to each victim applicant to address their collective harm.Footnote 123

78. 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, rather than solely on whether a victim had applied for reparations.

79. 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. These applicants will have their claims considered first in the course of the screening procedure specified later in the present order.Footnote 124 By virtue of having already prepared applications and supporting materials, the applicants can take part in this screening procedure without significant additional effort.Footnote 125 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.

80. However, going beyond these procedural advantages by compensating the applicants – to the exclusion of similarly harmed people – puts undue emphasis on the filing of applications rather than on the extent of the harm suffered or the sacrifice made by the victims. 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. As noted by the LRV himself, there is a large risk of frustration in awarding reparations only to those who have reparations applications pending before the Chamber.Footnote 126 The Chamber's appointed experts also recommend that reparations in the present case should be awarded on a collective basis as far as possible.Footnote 127

81. Accordingly, the Chamber awards individual reparations for consequential economic loss only to those whose livelihoods exclusively depended upon the Protected Buildings. An individualised response is more appropriate for them, as their loss relative to the rest of the community is more acute and exceptional. This is recognised by the LRVFootnote 128 and the appointed experts,Footnote 129 who single out persons in this group as having suffered harm in the present case. Such persons include those whose livelihood was to maintain and protect the Protected Buildings. Certain business owners may also qualify – such as a business whose only purpose is to sell sand perceived as holy from the sites of the Protected BuildingsFootnote 130  – but not owners of businesses with broader purposes who have been harmed by the loss of the Protected Buildings.

82. 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 this identified group. This is not to say that individual businesses and families could not receive financial support in the implementation of these collective reparations, but rather that the Chamber considers that a collective response is needed 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 131

83. 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 and (ii) collective reparations for the community of Timbuktu as a whole. 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 in order 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, a ‘microcredit system’ that would assist the population to generate income, or other cash assistance programmes to restore some of Timbuktu's lost economic activity.Footnote 132

3. Moral harm

84. When pronouncing Mr Al Mahdi's sentence, the Chamber concluded that Mr Al Mahdi had caused moral harm.Footnote 133

85. 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 134

The following quotes are taken from translations of some of the application forms:

  • • ‘I was completely emotionally devastated by the destruction of the mausoleums’.Footnote 135

  • • ‘I was a victim of the destruction of the mausoleum, upset and shaken in my body and to the depths of my being.’ Footnote 136

  • • ‘I have never suffered so deeply in my life […] Mentally, I was devastated. I felt humiliated by the destruction. I am still suffering […] I am still affected mentally.’ Footnote 137

  • • ‘I was so shocked and hurt on the day of the destruction that I could have died.’ Footnote 138

  • • ‘[M]y faith shattered and my belief unsettled.’ Footnote 139

  • • ‘I lost everything with the destruction – my childhood, my belief and my attachment.’ Footnote 140

  • • ‘My faith is shattered. My family fled [.] […] I lost everything and all my faith.’ Footnote 141

  • • ‘The whole city suffered on the day the mausoleums were destroyed. I wept and many others wept, because we were in great pain. The saints are all important to us. They are ancestors of all of us. We used to seek blessings from them and make offerings to them at every milestone in our lives: births, deaths, sickness, travel, etc. That's why the destruction harmed us. We didn't think it was possible.’ Footnote 142

  • • ‘I cried a lot on the day of the destruction. My family, my friends and all the people of Timbuktu suffered. We will never forget. The Saints of Timbuktu are the descendants of Allah. When we used to ask for their blessings, they would be given. When the mausoleums were destroyed, we were shattered as well. The pain is still there today. The city has changed. Timbuktu is no longer what it was; even if the saints protect us still, it's not the same as before. We lost everything; today we have nothing.’ Footnote 143

  • • ‘The destruction of the sacred shrines of my ancestors caused me suffering […] I suffered, as did the other members of my family. When there was a problem in our family, it was the only place in which we gathered and prayed for protection.’ Footnote 144

86. The Chamber has also received a variety of 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 145

87. 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.

88. 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 146 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.Footnote 147 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.

89. The Chamber considers that the community-wide impact of moral harm is minimised by the Defence, namely when it 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 148 The Chamber agrees with the Defence – and LRV,Footnote 149 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.Footnote 150 The Chamber therefore considers that individual reparations through compensation are necessary to address the mental pain and anguish they suffered. But the remainder of the reparations awarded to the entire community of Timbuktu must be collective in character.

90. 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 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. 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.

91. As emphasised previously, Chamber considers that the effects of these measures will ripple out so as to address the moral suffering endured by people throughout Mali and the international community.

92. The Chamber also notes the LRV's specific request in relation to organisation a/35140/16 which – in addition to requesting modalities already addressed by the Chamber in discussing consequential economic loss – requests the ‘establishment of an aid and counselling programme tailored to the needs of the people of Timbuktu that [it] would manage’.Footnote 151 Such a programme would be consistent with the indicated reparations modalities for moral harm, but the Chamber considers it a matter for the implementation phase to decide whether and to what extent this specific organisation will be involved in the implementation of the award.

4. Bodily harm

93. The Chamber convicted Mr Al Mahdi only of directing an attack against the Protected Buildings. The common plan underlying this conviction was to attack these sites only.Footnote 152 He was not convicted of any crimes against persons, nor did the Chamber make any factual findings in relation to crimes against persons.

94. Some victims allege in their applications that bodily harm – either to their families or themselves – was suffered as a result of the attack.Footnote 153

95. The Chamber also received supporting materials that moral harm resulting from death was suffered in connection with the destruction of the mausoleums.Footnote 154

96. The Defence indicates that Mr Al Mahdi does not contest the rights of victims to claim compensation for deaths caused during and as a result of the attacks, but submits there is no evidence supporting such claims.Footnote 155

97. The Chamber considers that many victims allege bodily harm with only the most summary of assertions that this happened during the attack, making it difficult to ascertain the circumstances of these deaths and how they occurred in the course of the attack against the Protected Buildings. This makes it impossible to tell if the bodily harm was caused by those attacking the Protected Buildings with Mr Al Mahdi or by others in a manner which he neither knew of nor could reasonably anticipate. The Chamber emphasizes again that no factual findings in the Judgment suggest that bodily harm played any part in the criminal plan for which Mr Al Mahdi was convicted.Footnote 156

98. As conceded by the LRV, victims in the present context must be ‘confined solely to the victims who suffered from the crime of which Mr Al Mahdi was found guilty’.Footnote 157 On the basis of the information before it, the Chamber does not consider that any bodily harm suffered was sufficiently foreseeable as to conclude that Mr Al Mahdi's crime is its actual and proximate cause.

99. As such, the Chamber orders no reparations for this kind of harm.

5. Damage to property other than the Protected Buildings

100. The Chamber convicted Mr Al Mahdi only of directing an attack against the Protected Buildings. As stated previously, the common plan underlying his conviction was to attack these sites only.Footnote 158 He was not convicted of any other kind of property loss or damage, nor did the Chamber make any factual findings in that regard.

101. The victims allege that they lost personal property (household items, livestock, store wares, etc.) as a result of the attack on the Protected Buildings.Footnote 159 Many of these victims allege this loss occurred when they fled Timbuktu in the wake of the attack on the Protected Buildings.Footnote 160

102. The Chamber considers that it has not received sufficient information to conclude that Mr Al Mahdi's crime is the actual and proximate cause of this kind of harm.Footnote 161 As was the case with allegations of bodily harm, the lack of details in the supporting materials before it makes it difficult for the Chamber to ascertain the circumstances of this damage, who caused it and how it occurred in the course of the attack against the Protected Buildings. This makes it impossible to determine whether it was sufficiently foreseeable that Mr Al Mahdi's acts and conduct would lead to this kind of damage. At times, the lack of detail also makes it unclear whether reparations are being sought on account of harm suffered in the attack on the Protected Buildings, or on the contrary on account of other events that occurred during the occupation of Timbuktu. Even if property loss or damage was incurred when victims fled during the period of the attack, the Chamber does not consider it substantiated that Mr Al Mahdi's crime was its proximate cause.

103. As such, although the Chamber does consider that Mr Al Mahdi can be considered liable for certain consequential economic losses following the destruction of the Protected BuildingsFootnote 162 and for moral harm suffered by those who fled the area as a result of this destruction,Footnote 163 he cannot be held liable for any other property damaged while the attack on the Protected Buildings was ongoing.

6. Conclusion

104. For the reasons above, and pursuant to Rule 98(2)-(3) of the Rules, the Chamber orders that reparations must be awarded in the manner specified for the following kinds of harm:

  1. i. Damage to the Protected Buildings: collective reparations through rehabilitation of the sites of the Protected Buildings;

  2. ii. Consequential economic loss: individual reparations for those whose livelihoods exclusively depended upon the Protected Buildings and collective reparations for the community of Timbuktu as a whole – these reparations are to be implemented through compensation to address the individual financial losses suffered and rehabilitation to address the economic harm caused to the community of Timbuktu; and

  3. iii. Moral harm: individual reparations for those whose ancestors’ burial sites were damaged in the attack and collective reparations for the community of Timbuktu as a whole – these reparations are to be implemented through individual compensation and collective rehabilitation to address the emotional distress suffered as a result of the attack on the Protected Buildings.

105. Above and beyond the modalities indicated in the sub-sections above, the Chamber again emphasises the general principles of non-discrimination which must fundamentally underlie the reparations ordered.Footnote 164 To every extent possible, these reparations must be implemented in a gender and culturally sensitive manner which does not exacerbate – and in fact addresses – any pre-existing situation of discrimination preventing equal opportunities to victims.

106. Although the Chamber recalls its general consideration that it has limited its assessment only to the community of Timbuktu, it notes the LRV's request to award nominal damages to the Malian State for the harm suffered above.Footnote 165

With regard to its considerations in paragraph 53 above, the Chamber considers a symbolic gesture of this kind to be appropriate and further directs that the Malian State receive one euro as part of the reparations award.

107. Similarly, the Chamber considers that one symbolic euro should equally be granted to the international community, which is best represented by UNESCO given the specific nature of the case.

108. The Chamber cannot conclude to the requisite standard of proof that Mr Al Mahdi is liable for bodily harm or other kinds of property loss or damage. In this regard, the Chamber emphasises the relatively narrow scope of this case relative to the wider range of human rights violations alleged to have occurred in Timbuktu and elsewhere throughout Mali. Mr Al Mahdi cannot be held responsible for these broader tragedies, but the Chamber encourages the TFV to consider acting under Rule 98(5) of the Rules to provide general assistance to those affected.

C. Scope of liability

109. The Chamber will now consider the extent of Mr Al Mahdi's liability for each kind of harm found to be established in the previous section.

110. The Chamber recalls that a convicted person's liability for reparations must be proportionate to the harm caused and, inter alia, his or her participation in the commission of the crimes for which he or she was found guilty, in the specific circumstances of the case.Footnote 166 In the present case, the Chamber has taken into consideration that: (i) Mr Al Mahdi is convicted as a co-perpetrator, pursuant to Article 25(3)(a) of the Statute; (ii) Mr Al Mahdi organised the attack on the Protected Buildings and (iii) Mr Al Mahdi directly participated in the attacks on five of the Protected Buildings. These considerations must be weighed while bearing in mind the fact that Mr Al Mahdi can be held liable only for harm stemming from the attack on the Protected Buildings. He cannot be held liable for other harm done during the occupation of Timbuktu, and even for any other harm done to the city's cultural heritage.

111. The Chamber does not consider it necessary to decide whether the figures given below constitute the sum-total of harm suffered in the course of the attack on the Protected Buildings. Its conclusions are specific to Mr Al Mahdi and what it considers to be a fair assessment of his liability alone.

112. The Chamber notes the LRV's submission that the TFV should undertake to give a precise figure of what resources are available in the present case.Footnote 167 However, the Chamber considers such information to be unnecessary for several reasons. First, the present award is levied against Mr Al Mahdi personally – the resources of the TFV are irrelevant to the question of Mr Al Mahdi's liability. Second, it is for the TFV to decide whether it will use its resources to complement a reparations award.Footnote 168 Even if the Chamber were given a preliminary indication of the TFV's available resources, this figure would have no bearing on whether the TFV will in fact use these resources in the present case. Third, and as noted by the TFV itself,Footnote 169 the amount of a TFV complement may be increased at a later point in the implementation process on account, inter alia, of successful fundraising efforts for the awards contained in the reparations order. As the TFV's available resources are not a fixed figure, there is no need to seek such information.

113. The Chamber also notes the Defence's argument that the amount of reparations should be a set and reasonable amount that reflects Mr Al Mahdi's financial abilities.Footnote 170 Given that all the information before the Chamber confirms that Mr Al Mahdi is indigent,Footnote 171 accepting this argument would entail setting Mr Al Mahdi's liability at or near zero.

114. The Chamber disagrees that Mr Al Mahdi's indigence has an impact on its reparations award. The Appeals Chamber has determined that it is an error to conclude that a convicted person's indigence is relevant to whether he or she should be liable for any reparations awarded.Footnote 172 Rule 97(1) of the Rules provides that the Chamber shall take into account the ‘scope and extent of any damage, loss or injury’ – but the personal financial circumstances of the convicted person are not mentioned. Taking such circumstances into account would inevitably lead to understating the harm suffered and depriving victims of their right to a remedy. A convicted person's financial circumstances may affect how a reparations award is enforced – such as by affording an option to make reasonable payments in instalments – and the Chamber does not intend to impose hardships on Mr Al Mahdi that make it impossible for him to reintegrate into society upon his release. But the enforcement of reparations awards is under the auspices of the Presidency and is beyond the current question of setting Mr Al Mahdi's personal liability.

115. In this connection, the Chamber is not persuaded by the Defence submission that it is within the Chamber's competence to limit to the term of imprisonment the time period within which the TFV is authorised to claim any reimbursement from Mr Al Mahdi.Footnote 173 The statutory scheme does not confer any such power on the Chamber, nor is one derivable from the Lubanga Reparations AJ.Footnote 174 Even if setting such a limitation was permissible, the Chamber considers it would be unfair for it to do so. After all, it is Mr Al Mahdi – not the TFV – who is responsible for the harm caused to the victims.

1. Damage to the Protected Buildings

116. The Chamber received information that UNESCO has spent over 2.53 million euros in rebuilding Timbuktu's mausoleums and rehabilitating the mosques and libraries of manuscripts.Footnote 175 However, this number reflects the total of all such projects UNESCO undertook, and not only the restoration of the 10 Protected Buildings at issue in the present case. The Chamber received information from the appointed experts that the number most representative of the actual cost of the work in restoring the mausoleums is just over 96,600 euros.Footnote 176

117. Prosecution Witness P-104 also provided an expert report containing figures in CFA francs for the restoration of six of the Protected Buildings.Footnote 177 This report was relied upon in the Judgment for the proposition that the victims suffered economic harm.Footnote 178 Converting P-104's numbers into eurosFootnote 179 and increasing the total proportionately to reflect the other four Protected Buildings not mentioned yields a similar figure of just over 97,000 euros.

118. The Chamber considers these numbers to reasonably approximate Mr Al Mahdi's liability for this harm, and accordingly sets Mr Al Mahdi's liability for this harm at 97,000 euros.

2. Consequential economic loss

119. Two of the Chamber's appointed experts provide a thorough accounting of all the relevant economic activity in Timbuktu from the time of the attack until the reconstruction efforts completed in 2015. These experts arrive at a total amount of economic harm of over 44.6 million euros.Footnote 180 No other expert attempts to quantify the consequential economic loss in a comparably rigorous manner.Footnote 181

120. There are many interlinked causes for the consequential economic loss in Timbuktu, including tourism losses, transportation difficulties, security concerns and population flight. The Chamber appreciates the difficulties in distinguishing between economic losses caused by the destruction of the Protected Buildings and those caused by the broader situation in Northern Mali.Footnote 182 That said, the Chamber considers that this 44.6 million euro figure clearly overstates the amount of loss for which Mr Al Mahdi can be held liable for several reasons.

121. First, this 44.6 million euro estimate includes economic loss to both Timbuktu and Bamako in the relevant period. As the Chamber stated earlier, it considers that addressing the harm suffered by the people of Timbuktu sufficiently addresses the more attenuated harm suffered by the people of Mali and the international community more generally. As such, the totals in relation to BamakoFootnote 183 should not be considered in setting Mr Al Mahdi's liability. For the same reasons, other conclusions of these experts measuring economic loss at the international level – which are in fact above and beyond the 44.6 million euro estimate – will also not be considered.Footnote 184

122. In this regard, the Defence argues that financial losses must be limited to the period in which the destroyed monuments had not yet been rebuilt by UNESCO.Footnote 185 This rebuilding period can be generally understood as running from the time of the attack until 2015,Footnote 186 although it is noted that some repairs continued after this time frame.Footnote 187 The appointed experts’ figures on the economic loss in Timbuktu concentrate on the period between 2012 and 2015.Footnote 188 The Chamber considers that it has insufficiently specific information to reach conclusions about any consequential economic loss beyond the Defence's indicated time frame, so the Defence concerns on this point are moot.

123. Second, the 44.6 million euro figure which the experts arrived at seems to incorporate expenses for the work done by the maçons during reconstruction efforts and surveillance of the repairs.Footnote 189 As the Chamber has already taken this into account when setting the liability for the damage caused to the Protected Buildings, doing so again would constitute double-counting. To the extent the costs referenced relate to the Protected Buildings’ standard repairs and maintenance, these expenses are incurred independently of the harm caused by Mr Al Mahdi's crime and he cannot be held liable for them.

124. Third, in arriving at their estimate, the experts take into account tourism transportation costs to and from Timbuktu.Footnote 190 The Chamber considers that Mr Al Mahdi can be held liable to an appropriate extent only for the loss of spending by tourists and their transport while in Timbuktu. This, however, is distinct from the costs incurred by those same tourists on their way to Timbuktu in the first place and on their return home after they leave Timbuktu. The latter costs relate to national and international economic activity which can most fairly be said to go beyond the harm to the community of Timbuktu for which Mr Al Mahdi is held liable. The Chamber considers that these costs must likewise be excluded.

125. Fourth, and most significantly, the experts appear to estimate the entirety of tourism losses from the time of the attack until 2015. However, Mr Al Mahdi can be held liable for these losses only to the extent that they are incurred as a result of the destruction of the Protected Buildings. In other words, the experts dramatically overstate Mr Al Mahdi's liability by estimating losses resulting from the period of occupation of Timbuktu and the damage caused by the jihadistsFootnote 191 more generally.

126. The experts estimate that economic activity in Timbuktu dropped by 20% between 2015 and 2017, and that only half of this loss (10%) can be attributed to the loss of the historic mausoleums.Footnote 192 The experts appear to proceed on an understanding that Mr Al Mahdi is 100% liable for the losses they identify from 2012 to 2015, but the Chamber considers that this is clearly an over-estimate because it conflates Mr Al Mahdi's liability with all the other reasons why tourism declined in Timbuktu over this period. As stated previously, with no further information provided for the 2015-2017 time period the Chamber cannot make any conclusions on Mr Al Mahdi's liability for economic losses during this period. But this 10% reduction is the only specific number given by any of the appointed experts isolating how much of the consequential economic loss suffered in Timbuktu is attributable to Mr Al Mahdi's acts and conduct. The Chamber considers it appropriate to use a 10% reduction as a starting point also for the 2012-2015 period.

127. But even if the estimate of consequential economic loss is lowered to 10%, Mr Al Mahdi's liability is still overstated. This is because – above and beyond the other factors previously considered – the 10% figure also reflects tourism losses due to damage to mausoleums and other cultural heritage beyond the scope of the present case. It is impossible to measure how much of this 10% loss is because of Mr Al Mahdi's specific attack against the Protected Buildings, because to do so with precision would require knowing the intentions of an unidentifiable group of potential tourists.

128. Bearing all these reductions in mind, the Chamber sets Mr Al Mahdi's liability for consequential economic loss at 2.12 million euros.

3. Moral harm

129. There is an inherent difficulty in addressing and measuring monetary values for moral harm. As submitted by the LRV, ‘a price cannot be put on dignity, as it cannot be put on faith, and so both are that much more difficult to restore’.Footnote 193 The inherently irreplaceable nature of historical buildings cannot be remedied by reconstruction, and this must be emphasised when consideration is given to how the moral harm suffered is to be addressed and measured. As stated by an ICTY Trial Chamber describing the destruction of cultural heritage sites: ‘[r]estoration of buildings of this kind, when possible, can never return the buildings to their state prior to the attack because a certain amount of original, historically authentic, material will have been destroyed, thus affecting the inherent value of the buildings’.Footnote 194 As found above, the Chamber considers that any complete assessment of the loss suffered must include liability for moral harm.

130. Two of the experts appointed by the Chamber state that the moral harm suffered in the present case is at least as great as the economic loss suffered.Footnote 195 There is no evident methodology leading to this conclusion beyond assertions of the widespread moral harm suffered in Timbuktu. This broader moral harm is caused by a variety of factors, and Mr Al Mahdi's acts and conduct can be said to have caused only part of it. Noting that it has determined these same experts’ conclusions on economic loss to be highly excessive, the Chamber is not persuaded that what these experts state is a sufficiently substantiated starting point for establishing Mr Al Mahdi's liability. This is not to say that the Chamber does not believe that the moral harm is less important than the economic loss suffered (quite the contrary), but rather that the Chamber does not have enough information to quantify this harm at the same level as the economic loss.

131. In contrast, another of the Chamber's appointed experts estimated in monetary terms the mental pain and anguish suffered in the present case at approximately 437,000 USD. The expert derived this figure from an award identified in a similar case, whereby in 2009 the Eritrea Ethiopia Claims Commission reflected the unique cultural significance of the damaged Stela of Matara with a 23,000 USD award. The expert then revised this number upwards to reflect the fact that 10 Protected Buildings were destroyed and nine of them held world heritage status.Footnote 196

132. The Chamber considers that the latter expert's methodology allows for a reasonable starting point for determining the approximate amount of mental pain and anguish overwhelmingly established in the present case. The figure the expert arrived at needs to be revised to reflect inflationFootnote 197 and converted into euros. The result would again need to be revised upwards to reflect the disruption of culture suffered, although there is no way of objectively estimating such a consideration.Footnote 198

133. Taking these considerations into account, the Chamber sets Mr Al Mahdi's liability for moral harm at 483,000 euros.

4. Total liability

134. Adding up Mr Al Mahdi's liability across the various kinds of harm caused, the Chamber sets his total liability at 2.7 million euros. This amount is exclusive of any internal administration costs incurred by the TFV during the implementation phase, for which Mr Al Mahdi is not liable.

VI. Implementation

135. The Chamber has concluded that Mr Al Mahdi is liable for 2.7 million euros in expenses for individual and collective reparations. The Chamber has also ordered some symbolic measures.

136. The Chamber notes the TFV's mandate as an implementing agency upon being seized of a reparations awardFootnote 199 and considers that the present order is the first of three Chamber determinations to be made during the reparations proceedings. Following this order, the TFV will propose a draft implementation plan reflecting the parameters of the Chamber's order, including the objectives, outcomes and necessary activities that comprehensively respond to all of the reparations modalities that can realistically be implemented.Footnote 200 The deadline for this draft implementation plan is set in the disposition of the present order, and the plan will be subject to the Chamber's approval in a second decision. Upon approval, the TFV will then identify discrete implementation partners in order to implement the Chamber's award, and the Chamber will approve the selected projects in a third decision.

137. Bearing all this in mind, it is not the Chamber's responsibility at this time to give detailed information about the implementation component of the reparations phase. However, the Chamber will advance the following preliminary considerations to guide the implementation of its order.

138. First, and noting Mr Al Mahdi's indigence, the Chamber appreciates that it is within the TFV's discretion to complement any individual or collective reparations. The Chamber encourages the TFV to complement the individual and collective awards to the extent possible,Footnote 201 and to engage in fundraising efforts to the extent necessary to complement the totality of the award.

139. Second, the Chamber notes that the modalities of reparations it has ordered mutually reinforce each other. In other words, addressing the discrete moral harm may have residual effects that ameliorate the discrete forms of economic harm and vice versa. As such, the Chamber does not consider that the TFV is limited to the Chamber's intermediate liability calculations set out above when designing an implementation plan, only its final determination on Mr Al Mahdi's total liability.

140. Third, the Chamber emphasises its view that the limited number of individual reparations ordered should be prioritised when implementing the award. The TFV's general position is to prioritise collective awards,Footnote 202 but, as indicated above, the groups identified by the Chamber for individual reparations are singled out because of the particular extent to which they were harmed by Mr Al Mahdi's conduct. The Chamber would like this prioritisation to be reflected in the implementation phase to the extent possible, and insofar as individual reparations do not hinder broader reconciliation or stigmatise individual victims vis-à-vis the community of Timbuktu.

141. Fourth, and recalling its previous findings on a wide variety of harm suffered in the present case, the Chamber notes that the number of applications received in the present case pales in comparison to the number of persons who were in fact harmed. The Chamber also notes that it has received only 139 applications during the reparations phase, despite determining that collective harm was suffered across Timbuktu (a city of approximately 70,000 people around the time of the attack). The LRV acknowledges that ‘the victims whom he met on his assignment in Mali represent just a fraction of the victims in the case’.Footnote 203 The Chamber also notes the information received that the security situation in Timbuktu makes travelling there or contacting victims difficult.Footnote 204 For these reasons, the Chamber considers that the names of all the victims meeting its parameters for individual reparations are simply not known and considers that it would be impracticable for the Chamber to attempt to identify and assess them all itself.

142. The Appeals Chamber in Lubanga expressly took no position on ‘whether a Trial Chamber would be required to rule on each individual reparations request received if it decides to award reparations on an individual basis pursuant to rule 98 (2) of the Rules of Procedure and Evidence or to award reparations on both an individual and collective basis’.Footnote 205 The Chamber considers that it is not required to make such an assessment when awarding individual reparations, making administrative screening through the TFV an approach that is compatible with the statutory framework.

143. As also recognised by the Appeals Chamber,Footnote 206 the Regulations of the TFV explicitly contemplate individual reparations for unidentified beneficiaries.Footnote 207 This is in juxtaposition to the TFV Regulations governing individual reparations in cases where the Court identifies each beneficiary.Footnote 208 When the Court does not identify the beneficiaries, it falls to the TFV to establish a verification procedure to determine that any persons who identify themselves to the TFV are in fact members of the beneficiary group.Footnote 209 The Chamber considers that proceeding in this manner is an alternative to an application-based process, whereby the Chamber assesses the reparation requests of identifiable beneficiaries filed pursuant to Rule 94 of the Rules.

144. For the reasons above, the Chamber considers that the impracticability of identifying all those meeting its individual reparations parameters justifies an eligibility screening during the implementation phase. The Chamber therefore considers it best that individual reparations be awarded on the basis of an administrative screening by the TFV.Footnote 210

145. The Chamber recalls that individual reparations are to be awarded to: (i) those whose livelihoods exclusively depended upon the Protected Buildings and (ii) those whose ancestors’ burial sites were damaged in the attack. Given the role of the descendants of the saints in guarding and maintaining the Protected Buildings, it is likely that many of those identified in each of these groups will be the same individuals. Bearing this in mind, the Chamber considers that one screening for both categories is sufficient. It is also emphasised at the outset that anyone not participating in the screening can still participate in collective reparations programmes – the screening process concerns only individual reparations.

146. This screening process itself must respect the rights of both the victims and the convicted person.Footnote 211 The Chamber considers that the full details of this screening are to be determined by the TFV, but it can already set out the following general parameters:

  1. (i) Reasonable efforts must be made to identify individuals who may be eligible under the screening process, within a timeframe to be proposed by the TFV.

  2. (ii) Individuals who wish to be considered for the screening process are to provide a reparations application and any supporting documents. It is noted in this regard that this step has already been taken by the reparations applicants in the present case, and these persons should be considered first by the TFV if they also apply to be screened.

  3. (iii) Both the applicant, on his or her own or through a legal representative, and the Defence must be given an opportunity to make representations before the TFV assesses any applicant's eligibility. In assessing eligibility, the TFV may base itself only on information made available and to which the Defence has had an opportunity to access and respond.

  4. (iv) Anyone who wishes to be considered for individual reparations must make their identity known to both the TFV and the Defence. The Defence steadfastly requests the proof of identity of those seeking individual reparations,Footnote 212 but the Chamber notes that one of its appointed experts cautions against turning over victims’ names to the Defence.Footnote 213 It is true that the regulations governing the TFV verification procedure in this context do not expressly specify any role for the Defence,Footnote 214 but these same regulations also make clear that the TFV verification procedure is subject to additional principles specified in the Court's order.Footnote 215 The Chamber considers it appropriate that Mr Al Mahdi be afforded an opportunity to present informed views and concerns regarding the individuals claiming to be owed individual reparations from him. The Chamber does not identify beneficiaries in a full Chamber procedure – complete with the procedural rights associated with such a procedure – for a reason outside the Defence's control, namely the impracticability of conducting such an assessment. It is fair to afford the Defence an opportunity to present an informed submission to the TFV in these circumstances. Involving the Defence in this way assists the TFV in having all relevant information before it during the screening. This in turn will increase the accuracy of the screening itself and ensure the integrity of the overall procedure. The Chamber emphasises that no identity of a reparations applicant may be transmitted to the TFV or Defence without the victim's consent.Footnote 216

  5. (v) The result of the screening for each applicant is to be communicated to both the applicant and the Defence. No administrative review mechanism is available to the Defence for victims screened as eligible. This absence of a review mechanism for those screened as eligible is appropriate in view of the administrative nature of the screening exercise. The TFV is merely identifying eligible victims according to the parameters specified in the present order. It is not setting Mr Al Mahdi's liability, as this is also set in the present order. A denial of eligibility of any particular applicant during the screening process will not reduce Mr Al Mahdi's total liability in any way, giving him only a limited interest during the screening process. To permit the Defence to effectively appeal any affirmative screening would be to invite a full-fledged, non-administrative judicial procedure. The Chamber has already considered such a procedure to be impracticable, which is why it ordered an administrative screening in the first place. On the other hand, the Defence always has the right to challenge the victim parameters, total liability conclusions and administrative screening process set forth in the present order before the Appeals Chamber.Footnote 217

147. Fifth, the Chamber has received conflicting information about the extent to which traditional justice mechanisms should be used in implementing the Chamber's order. Some note the paramount role these play in Timbuktu's culture and how the validity of any reparations order depends on using them.Footnote 218 Others emphasise that certain traditional justice mechanisms in Timbuktu have a history of discrimination, especially against women, and that care should be taken in relying upon them.Footnote 219 Given this conflicting information, the Chamber will not require that traditional justice mechanisms be part of the implementation of its award.

148. Lastly, the Chamber emphasises that implementation of the present order must be responsive to local conditions while being consistent with the Court's reparations principles, including the principle of non-discrimination. The TFV is expected to devise a draft implementation plan bearing this dichotomy in mind, consulting all relevant stakeholders – including the parties – and recommending any implementation measures it considers appropriate.Footnote 220 The parties will also be given an opportunity to file written submissions on the draft implementation plan proposed. As emphasised above, the TFV's discretion in drafting the implementation plan will be subject to approval by way of a second decision of the Chamber.

VII. Disposition

FOR THE FOREGOING REASONS, THE CHAMBER HEREBY

ORDERS individual, collective and symbolic reparations for the community of Timbuktu as specified in paragraphs 56, 67, 71, 83, 90, 106 and 107 of the present order;

ACKNOWLEDGES that the destruction of the Protected Buildings has caused suffering to the people throughout Mali and the international community;

ASSESSES Mr Al Mahdi's liability for these reparations at 2.7 million euros;

ENCOURAGES the TFV to take steps to complement the reparations award and provide broader assistance for victims in Mali as set out in paragraphs 108 and 138 of the present order;

ORDERS the Registry to comply with the symbolic measures identified in paragraph 71 of the present order forthwith;

SETS a deadline for the TFV's draft implementation plan for 16 February 2018; and

DIRECTS the LRV and Defence to file any observations on the draft implementation plan within 30 days of its notification.

Done in both English and French the English version being authoritative.

Dated 17 August 2017

At The Hague The Netherlands

Footnotes

1 Mandat d'arrêt à l'encontre d'Ahmad AL FAQI AL MAHDI, ICC-01/12-01/15-1-Red (public redacted version notified on 28 September 2015).

2 Transcript of Hearing, ICC-01/12-01/15-T-1-ENG.

3 Chef d'accusation retenu par l'Accusation contre Ahmad AL FAQI AL MAHDI, 17 December 2015, ICC-01/12-01/15-62.

4 Annex 1 to the Version publique expurgée du «Dépôt de l'Accord sur l'aveu de culpabilité de M. Ahmad Al Faqi Al Mahdi», 25 février 2016, ICC-01/12-01/15-78-Conf-Exp, 25 February 2016, ICC-01/12-01/15-78-Anx1-tENG-Red (confidential English translation notified on 21 June 2016, public redacted version notified on 19 August 2016 and public redacted English translation notified on 9 September 2016).

5 Public redacted version of the ‘Decision on the confirmation of charges against Ahmad Al Faqi Al Mahdi’, ICC-01/12-01/15-84-Red (with separate opinion).

6 Presidency, Decision constituting Trial Chambers VIII and IX and referring to them the cases of The Prosecutor v. Ahmad Al Faqi Al Mahdi and The Prosecutor v. Dominic Ongwen, ICC-01/12-01/15-86.

7 Transcript of Hearing, ICC-01/12-01/15-T-3-CONF-ENG.

8 Consolidated and Updated Joint List of Evidence, 7 September 2016, ICC-01/12-01/15-167 (with annex). See also Annex A to the Dépôt de l'inventaire des preuves que l'Accusation entend produire à l'audience de confirmation des charges, 18 December 2015, ICC-01/12-01/15-67-Conf-Exp-AnxA; Annex A to the Addendum au « Dépôt de l'inventaire des preuves que l'Accusation entend produire à l'audience de confirmation des charges », 18 décembre 2015 (ICC-01/12-01/15-67), 29 January 2016, ICC-01/12-01/15-74-Conf-Exp-AnxA; Annex A to the Communication de la liste conjointe d’éléments de preuve additionnels soumise en application de l'article 65(1)(c)(ii) du Statut et demande d'extension de temps pour déposer 5 notes d'enquêteurs, 1 July 2016, ICC-01/12-01/15-119-Conf-AnxA; Annex A to the Addendum à la « Communication de la liste conjointe d’éléments de preuve additionnels soumise en application de l'article 65(1)(c)(ii) du Statut et demande d'extension de temps pour déposer 5 notes d'enquêteurs », 1 juillet 2016, ICC-01/12-01/15-119-Conf, 15 July 2016, ICC-01/12-01/15-130-Conf-AnxA.

9 Transcripts of hearing, 22 August 2016, ICC-01/12-01/15-T-4-Red-ENG, p. 3, line 20, to p. 4, line 15, ICC-01/12-01/15-T-6-ENG, p. 44, lines 13-18; Requête urgente de la Défense aux fins de dépôt de déclarations écrites de deux témoins au dossier du procès, avec deux annexes confidentielles 1 et 2, 23 August 2016, ICC-01/12-01/15-162-Conf (with two annexes containing the witness statements MLI-DEF-0001-0001 and MLI-DEF-0002-0001).

10 Public redacted version of ‘Decision on Victim Participation at Trial and on Common Legal Representation of Victims’, ICC-01/12-01/15-97-Red (ex parte version notified on the same day).

11 ICC-01/12-01/15-97-Red, p. 15; Public redacted version of ‘Second Decision on Victim Participation at Trial’, 12 August 2016, 12 August 2016, ICC-01/12-01/15-156-Red (confidential version notified on the same day). Following decision ICC-01/12-01/15-156-Red, victim a/35008/16 withdrew. Transcript of Hearing, 22 August 2016, ICC-01/12-01/15-T-4-Red-ENG, p. 3, lines 8-19.

12 ICC-01/12-01/15-T-4-Red-ENG, ICC-01/12-01/15-T-5-Red-ENG, ICC-01/12-01/15-T-6-ENG. For more on the conduct of the present proceedings, see the Directions on the Conduct of the Proceedings, 22 July 2016, ICC-01/12-01/15-136 (with annex).

13 The participants also made written sentencing submissions. Observations de la Défense sur les principes devant gouverner la peine et les circonstances aggravantes et/ou atténuantes en la cause, en conformité avec l'ordonnance ICC-01/12-01/15-99 de la Chambre (ICC-01/12-01/15-141-Conf), 22 July 2016, ICC-01/12-01/15-141-Corr-Red (corrigendum and public redacted version notified 20 September 2016) (‘Defence Sentencing Observations’); the Prosecution's submissions on sentencing, 22 July 2016, ICC-01/12-01/15-139-Red (with annex; public redacted version notified on 22 August 2016) (‘Prosecution Sentencing Observations’); Observations des victimes tendant à la fixation d'une peine exemplaire pour crimes de guerre, 22 July 2016, ICC-01/12-01/15-135-Conf (‘LRV Sentencing Observations’). See also The Registry's Observations on Mr Ahmad Al Faqi Al Mahdi's Solvency and Conduct while in Detention, 21 July 2016, ICC-01/12-01/15-134- Conf (‘Registry Observations’).

14 First Agreed Facts, ICC-01/12-01/15-54-Conf-AnxA, p. 3 (fact 10).

15 Defence witness statement, MLI-DEF-0001-0001, 0002.

16 Statement by Al Mahdi, MLI-OTP-0033-4511, 4516-18.

17 First Agreed Facts, ICC-01/12-01/15-54-Conf-AnxA, p. 3 (fact 11).

18 Statement by Al Mahdi, MLI-OTP-0033-4511, 4523-25; Defence witness statement, MLI-DEF-0002-0001, 0001-02.

19 First Agreed Facts, ICC-01/12-01/15-54-Conf-AnxA, pp. 2 and 3 (facts 3-13).

20 See, generally, Regulation 55 of the Regulations (‘Authority of the Chamber to modify the legal characterisation of facts’).

21 Elements of Crimes, Article 8(2)(e)(iv).

22 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907, Articles 27 and 56 (Article 27 provides: ‘In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places w here the sick and wounded are collected, provided they are not being used at the time for military purposes’). For an even earlier national codification of this prohibition, see also Instructions for the Government of Armies of the United States in the Field (Lieber Code), 1863, Articles 35 and 36.

23 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, 14 The American Journal of International Law 95 (No. 1-2, 1920), p.115.

24 Convention (I) for the amelioration of the condition of the wounded and sick in armed forces in the field, 12 August 1949, Articles 19-23; Convention (II) for the amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea, 12 August 1949, Articles 22, 23, 34-35; Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, Articles 14, 18 and 19.

25 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Article 53; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, Article 16. Both these protocols make reference to an earlier 1954 Hague Convention. See Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention, The Hague, 14 May 1954, Article 4.

26 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999, Article 15.

27 See para. 14 of the present Judgment.

28 See, generally, Pre-Trial Chamber II, The Prosecutor v. Bosco Ntaganda, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, 9 June 2014, ICC-01/04-02/06-309, para. 45; Pre-Trial Chamber I, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the confirmation of charges, 30 September 2008, ICC-01/04-01/07-717 (notified on 1 October 2008), para. 267.

29 Compare also Article 8(2)(e)(iv) of the Rome Statute with Article 3(d) of the ICTY Statute (criminalizing ‘seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science’); ICTY, Trial Chamber II, Prosecutor v. Pavle Strugar, Judgement, 31 January 2005, IT-01-42-T (‘Strugar TJ’), para. 308 (interpreting the ICTY Statute as requiring actual damage or destruction to the cultural property).

30 The only difference is the nature of the armed conflict in the contextual elements.

31 There is a split in this Court's case-law as to whether this contribution must be to the ‘crime’ itself or the ‘common plan’. However, on the facts of the present case this distinction makes no difference.

32 Appeals Chamber, The Prosecutor v. Thomas Lubanga Dyilo, Public redacted Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction, 1 December 2014, ICC-01/04-01/06-3121-Red, A5, paras. 469 and 473 (‘Lubanga AJ’).

33 Lubanga AJ, ICC-01/04-01/06-3121-Red, paras. 445 and 446.

34 See Lubanga AJ, ICC-01/04-01/06-3121-Red, paras. 447-451; Lubanga TJ, ICC-01/04-01/06-2842, paras. 1014-18.

35 See paras. 57 and 58 of the present Judgment.

36 Report of the International Law Commission on the work of its forty-sixth session, 2 May to 22 July 1994, Official Records of the General Assembly, Forty-ninth session, Supplement No. 10, A/49/10, part II, pp. 54 and 55.

37 Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, 6 September 1995, A/50/22 Supp. 22, para. 170.

38 Report of the Preparatory Committee on the Establishment of an International Criminal Court, Proceedings of the Preparatory Committee during March-April and August 1996, A/51/22 Supp. 22 (‘1996 PrepCom Report’), vol. I, para. 263.

39 Mirjan Damaška, Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study, 121 University of Pennsylvania Law Review 506, p. 582 (1972-73). Commentators have noted that this traditional distinction has substantially eroded in recent times. Fabricio Guariglia and Gudrun Hochmayr, Proceedings on an admission of guilt, in Rome Statute of the International Criminal Court – A Commentary, 2016 (C.H. Beck – Hart – Nomos, 3rd edition, Triffterer and Ambos, eds) (‘Triffterer Commentary’), p. 1623.

40 Preparatory Committee on the Establishment of an International Criminal Court, Working paper submitted by Argentina, 13 August 1996, A/AC.249/L.6, pp. 8, 14 and 15.

41 A/AC.249/L.6, p. 8.

42 Preparatory Committee on the Establishment of an International Criminal Court, proposal submitted by Argentina and Canada for Articles 38, 38 bis, 41 and 43, 20 August 1996, A/AC.249/WP.16, reproduced in 1996 PrepCom Report, vol. II, pp. 173 and 174. See also Hans-Jörg Behrens, The Trial Proceedings, in The International Criminal Court – The Making of the Rome Statute: Issues, Negotiations, Results, 1998 (Kluwer Law International, Roy S. Lee ed.) (‘Lee Statute Commentary’), p. 242. This said, while the English version of Article 64(8)(a) of the final Statute uses the term ‘admission of guilt’, the French version speaks of ‘la possibilité de plaider coupable […]’. Article 65 in the French version of the final Statute uses the term ‘aveu de culpabilité’ throughout.

43 This provision appears as early as 14 August 1997, in a Preparatory Committee Report. Preparatory Committee on the Establishment of an International Criminal Court, Decisions Taken by the Preparatory Committee at its Session Held from 4 to 15 August 1997, 14 August 1997, A/AC.249/1997/L.8/Rev.1, p. 33. A comment on the draft paragraph appears in footnote 41, which reads: ‘Concerns were expressed about this paragraph and it was suggested that its formulation should continue to be examined’.

44 Triffterer Commentary, page 1633; Lee Commentary, p. 242; William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, 2010 (Oxford University Press) (‘Schabas Commentary’), p. 780.

45 Black's Law Dictionary confirms that a plea is not necessarily always linked with a plea bargain: ‘[…] [a] guilty plea is usu[ally] part of a plea bargain’. ‘Plea’, in Black's Law Dictionary (10th ed., 2014).

46 See Schabas Commentary, pp. 776-77; Procedure before the Trial Chamber, in The Rome Statute of the International Criminal Court – A Commentary, 2002 (Oxford University Press, Cassese, Gaeta and Jones, eds.), vol. II, p. 1290 (‘[i]t is, moreover, a fairly generally accepted principle that bargaining between the prosecution and defence must, in those States that use it, be approved by a judge’).

47 Triffterer Commentary, p. 1625.

48 Article 65(1)(c) and (2) of the Statute.

49 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red. See also First Agreed Facts, ICC-01/12-01/15-54-Conf-AnxA; Second Agreed Facts, ICC-01/12-01/15-83-Conf-AnxA.

50 ICC-01/12-01/15-67-Conf-AnxA; ICC-01/12-01/15-74-Conf-AnxA. See also Transcript of Hearing, 24 May 2016, ICC-01/12-01/15-T-3-Conf-ENG, p. 21, line 13, to p. 22, line 14 (confirming that the materials listed in ICC-01/12-01/15-67-Conf-AnxA and ICC-01/12-01/15-74-Conf-AnxA are accepted by the accused).

51 Rule 63(4) of the Rules.

52 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 28; Transcript of Hearing, ICC-01/12-01/15-T-4-Red-ENG, p. 11, lines 10–20.

53 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, paras. 6, 23, 28; Transcript of Hearing, ICC-01/12-01/15-T-4-Red-ENG, p. 10, lines 7-11 and 18-21.

54 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 21; Transcript of Hearing, ICC-01/12-01/15-T-4-Red-ENG, p. 11, lines 3-7.

55 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 4; Transcript of Hearing, ICC-01/12-01/15-T-4-Red-ENG, p. 6, line 18, to p. 7, line 19.

56 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 1; Statement by P-66, MLI-OTP-0019-0296-R01, 0304, 0310; Malian Intelligence bulletin, MLI-OTP-0012-0098; Malian Government's Memorandum on the security situation in the regions of northern Mali, MLI-OTP-0001-0167; Malian Intelligence bulletin on the situation of armed groups in the north of Mali, MLI-OTP-0012-0119, 0119, 0122-23; Report of the Secretary-General on the situation in Mali, MLI-OTP-0013-3480; Report of the Secretary-General on children and armed conflict in Mali, MLI-OTP-0014-5183, 5184-88; OCHA's Situation Report on Mali, MLI-OTP-0001-1459; Report of the United Nations High Commissioner for Human Rights, MLI-OTP-0013-3500; AQIM's Press release on the events in Gao, MLI-OTP-0010-0521; Key dates of the jihadist occupation in northern Mali, MLI-OTP-0033-3862.

57 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, paras. 3-5; Video of Ouman Ould Hamaha speaking about Ansar Dine's control of Timbuktu, MLI-OTP-0018-0352, from 00:00:00 to 00:00:41, MLI-OTP-0033-5448 (full French transcript); Video of Ansar Dine at Timbuktu airport, MLI-OTP-0018-0345; Video of Ansar Dine's flag at Timbuktu airport, MLI-OTP-0018-0195; Video of interview with Ansar Dine's member from the airport of Timbuktu, MLI-OTP-0018-0197 (Transcript, MLI-OTP-0033-5436); Statement by P-65, MLI-OTP-0020-0019-R01, 0059-0063; Statement by P-66, MLI-OTP-0019-0296-R01, 0299, 0304-06.

58 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 10; Statement by P-65, MLI-OTP-0020-0019-R01, 0052, 0082; Al Jazeera Report, MLI-OTP-0011-0415; Statement by P-66, MLI-OTP-0019-0296-R01, 0314, 0332; Journalism Mission Authorisation, MLI-OTP-0002-0016 (English translation, MLI-OTP-0034-0202); Interview of Amputee, MLI-OTP-0001-7037, from 00:46:20 to 00:47:24, MLI-OTP-0024-2910, 2939-40 (French translation); Statement by P-111, MLI-OTP-0024-2467-R01, 2505, France 2 Report, MLI-OTP-0001-6954; Sahara Media press article, MLI-OTP-0015-0406.

59 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 9; Statement by P-65, MLI-OTP-0020-0019-R01, 0053; Statement by P-66, MLI-OTP-0019-0296-R01, 0316; List of the judges of the Islamic Court, MLI-OTP-0001-7369 (English translation, MLI-OTP-0034-0071).

60 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 7; First Agreed Facts, ICC-01/12-01/15-54-Conf-AnxA, pp. 4 and 5 (facts 14-20); Statement by P-65, MLI-OTP-0020-0019-R01, 0050; Sahara Media press article, MLI-OTP-0015-0406.

61 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, paras. 2 and 6.

62 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, paras. 7-9, 15 and 16; Statement by P-65, MLI-OTP-0020-0019-R01, 0039-61, para. 154; Statement by P-65, MLI-OTP-0024-3096-R01, 3112-13; Statement by P-125, MLI-OTP-0023-0004-R01, 0014-16; Jeune Afrique press article, MLI-OTP-0001-4044.

63 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, paras. 6-7, 18-19; Statement by P-65, MLI-OTP-0020-0019-R01, 0050-53, para. 163; Statement by P-65, MLI-OTP-0024-3096-R01, 3109-12; Video, MLI-OTP-0009-1749, from 00:09:40:00 to 00:10:19:00.

64 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 14; Statement by P-65, MLI-OTP-0020-0019-R01, 0051, para. 154.

65 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, paras. 8, 11; Statement by P-65, MLI-OTP-0020-0019-R01, 0050, para. 151;

66 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 11; Statement by Mr Al Mahdi, MLI-OTP-0033-4833, 4852; MLI-OTP-0033-4598, 4606.

67 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 12; Statement by P-65, MLI-OTP-0020-0019-R01, 0050, Statement by P-66, MLI-OTP-0019-0296-R01, 0318.

68 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 26; P-151 testimony, ICC-01/12-01/15-T-5-CONF-ENG, p. 38, line 24, to p. 40, line 5, p. 44, line 11, to p. 45, line 2; Statement by P-151, MLI-OTP-0029-0843-R01, 0856; P-431 testimony, ICC-01/12-01/15-T-5-CONF-ENG, p. 77, line 25, to p. 81, line 13, p. 83, line 22, to p. 84, line 19, p. 92, lines 19-25; Report of Expert Witness P-104, MLI-OTP-0024-0537, 0547-49; Statement by P-66, MLI-OTP-0019-0296-R01, 0340; UNESCO's Study on the mausoleums of Timbuktu, MLI-OTP-0015-0081, 0092; UNESCO's World Heritage List nomination file for Timbuktu, MLI-OTP-0013-3541, 3548-49, 3592-93; World Heritage List. Nomination file submitted by the Republic of Mali, MLI-OTP-0004-0361, 0374-76; UNESCO's World Heritage sites in Mali, MLI-OTP-0013-3630; Cultural heritage of Timbuktu: issues and prospects, MLI-OTP-0014-5751, 5823-30; UNESCO's International expert's meeting for the safeguarding of Mali's cultural heritage, MLI-OTP-0006-3459, 3470-73; Timbuktu wounded: a look at the scars left by the occupation of northern Mali, MLI-OTP-0014-5896, 5915; Video, MLI-OTP-0001-6939 (Transcript, MLI-OTP-0030-0108, 0109); UNESCO, Reconstruction of Timbuktu mausoleums near completion, MLI-OTP-0028-0833; Video, MLI-OTP-0018-0366 (Translated transcript, MLI-OTP-0022-0567); Statement by P-125, MLI-OTP-0023-0004-R01, 0018, 0024; Timbuktu-Mali conservation and management plan, MLI-OTP-0007-0002, 0038.

69 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 34; Second Agreed Facts, ICC-01/12-01/15-83-Conf-AnxA, p. 2 (fact 53).

70 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 34; Video, MLI-OTP-0018-0366 (Translated transcript, MLI-OTP-0022-0567); Statement by P-114, MLI-OTP-0023-0344-R01, 0373-74.

71 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 35; First Agreed Facts, ICC-01/12-01/15-54-Conf-AnxA, p. 6 (fact 37); Second Agreed Facts, ICC-01/12-01/15-83-Conf-AnxA, p. 3 (fact 53); Video, MLI-OTP-0018-0148 from 00:14:33:19 to end (Translated transcript, MLI-OTP-0025-0337, 0341).

72 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 38.

73 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 37; Second Agreed Facts, ICC-01/12-01/15-83-Conf-AnxA, p. 2 (fact 51).

74 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, paras. 24, 38-40.

75 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 40.

76 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 44; Second Agreed Facts, ICC-01/12-01/15-83-Conf-AnxA, p. 3 (fact 54); Video, MLI-OTP-0018-0358 (Translated transcript, MLI-OTP-0025-0330, 0332).

77 Agreement ICC-01/12-01/15-78-Anx1-tENG-Red, paras. 45, 54. Second Agreed Facts, ICC-01/12-01/15-83-Conf-AnxA, p. 3 (fact 57); Statement by Mr Al Mahdi, MLI-OTP-0033-4645, 4659-60, 4666, 4726.

78 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 30; Report by Expert Witness P-75, MLI-OTP-0033-0140; UNESCO Director-General calls for a halt to destruction of cultural heritage sites in Timbuktu, MLI-OTP-0001-1944.

79 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, paras. 61-63; Statement by P-65, MLI-OTP-0020-0019- R01, 0066-68 (Videos MLI-OTP-0018-0354, MLI-OTP-0018-0360, MLI-OTP-0018-0363, MLI-OTP-0018-0375); Statement by P-66, MLI-OTP-0019-0296-R01, 0333-34 (Videos MLI-OTP-0012-1782, MLI-OTP-0012-1784), 0344-45 (Videos MLI-OTP-0001-6926, MLI-OTP-0001-7037 at 00:45:17 to 00:45:26); Report of Expert Witness P-75, MLI-OTP-0033-0140, 143-46, 0166-68, 0183-84; Statement by P-125, MLI-OTP-0023-0004- R01, 0018.

80 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, paras. 64-65; Report of Expert Witness P-104, MLI-OTP-0028-0586, 0761-67; Statement by P-65, MLI-OTP-0020-0019-R01, 0068; Video, MLI-OTP-0018-0353; Report of Expert Witness P-75, MLI-OTP-0033-0140, 0165-66; Video, MLI-OTP-0018-0353; UNESCO's Study on the mausoleums of Timbuktu, MLI-OTP-0015-0081, 0086.

81 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, paras. 66-72; Photograph, Malian Government, MLI- OTP-0009-1526; Malian Government's illustrated list of mausoleums and cemeteries, MLI-OTP-0001-7116, 7118; Statement by P-114, MLI-OTP-0023-0344-R01, 0364; Report of Expert Witnesses P-55 and P-57, MLI-OTP-0029-1138, 1196-99; Malian Government's Intelligence Bulletin on security situation in northern Mali, MLI-OTP-0012-0462, 0463-64; Report of Expert Witness P-104, MLI-OTP-0028-0586, 0676-82; Statement by P-125, MLI-OTP-0023-0004-R01, 0018-19, 0041; Video, MLI-OTP-0011-0459, from 00:00:00 to 00:00:08; UNESCO Director-General calls for a halt to destruction of cultural heritage sites in Timbuktu, MLI-OTP-0001-1944.

82 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, paras. 73-78; Malian Government's illustrated list of mausoleums and cemeteries, MLI-OTP-0001-7116; Photographs, Malian Government, MLI-OTP-0009-1508, MLI-OTP-0009-1509, MLI-OTP-0009-1513; Statement by P-125, MLI-OTP-0023-0004-R01, 0043; Report of Expert Witness P-104, MLI-OTP-0028-0586, 0685-95; Statement by P-66, MLI-OTP-0019-0296-R01, 0334-36; Videos, MLI-OTP-0012-1792, MLI-OTP-0012-1793, MLI-OTP-0012-1787, MLI-OTP-0012-1789; Second Agreed Facts, ICC-01/12-01/15-83-Conf-AnxA, page 4 (fact 69); Video, MLI-OTP-0001-7037 from 00:45:01:19 to 00:45:07:16; Report of Expert Witness P-75, MLI-OTP-0033-0140, 0146, 0184-85; Report of Expert Witnesses P-55 and P-57, MLI-OTP-0029-1138, 1187-95.

83 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, paras. 85-86; Photographs, Malian Government, MLI- OTP-0009-1495, MLI-OTP-0009-1562; Malian government's illustrated list of mausoleums and cemeteries, MLI-OTP-0001-7116; Statement by P-114, MLI-OTP-0023-0344-R01, 0365-66, paras. 78-80; Report of Expert Witness P-104, MLI-OTP-0028-0586, 0657-67; Video, MLI-OTP-0012-1811; Report of Expert Witnesses P-55 and P-57, MLI-OTP-0029-1138, 1165-68; Photographs, MLI-OTP-0006-2243 to MLI-OTP-0006-2258.

84 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, paras. 87-88; Report of Expert Witness P-104, MLI-OTP-0028-0586, 0647-56; Photograph, Malian Government, MLI-OTP-0009-1498; Statement by P-114, MLI-OTP-0023-0344-R01, 0366; Statement by P-66, MLI-OTP-0019-0296-R01, 0337-39; Video, MLI-OTP-0012-1801; Report of Expert Witnesses P-55 and P-57, MLI-OTP-0029-1138, 1169-72.

85 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, paras. 82-84; Report of Expert Witness P-104, MLI-OTP-0028-0586, 0637-46; Malian Government's illustrated list of mausoleums and cemeteries, MLI-OTP-0001-7116; Statement by P-125, MLI-OTP-0023-0004-R01, 0021, 0029-40; Videos, MLI-OTP-0018-0366, MLI-OTP-0018-0374; Report of Expert Witnesses P-55 and P-57, MLI-OTP-0029-1138, 1173-77.

86 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, paras. 89-95; Malian government's communication, MLI-OTP-0012-0259; Malian government's Intelligence Bulletin on the situation in Timbuktu, MLI-OTP-0012-0260; Report of Expert Witness P-104, MLI-OTP-0024-0537, 0557-65; Report of Expert Witnesses P-55 and P-57, MLI-OTP-0029-1138, 1151-57; Statement by P-125, MLI-OTP-0023-0004-R01, 0022-23, 0031-35; Statement by P-65, MLI-OTP-0020-0019-R01, 0070-71; Statement by P-66, MLI-OTP-0019-0296-R01, 0340-41; Videos, MLI-OTP-0012-1918, MLI-OTP-0012-1919; Report of Expert Witness P-75, MLI-OTP-0033-0140, 0160-61, 0190-93; Video, MLI-OTP-0018-0212; Statement by P-65, MLI-OTP-0020-0019-R01, 0071-72; Video, MLI-OTP-0018-0149 (Translated transcript, MLI-OTP-0024-2954, 2958-59), Video, MLI-OTP-0018-0209 (Translated transcript, MLI-OTP-0033-5439, 5441).

87 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, paras. 96-103; Malian Government's illustrated list of mausoleums and cemeteries, MLI-OTP-0001-7116, 7118; Photographs, MLI-OTP-0009-1478, MLI-OTP-0009-1483; Report of Expert Witness P-104, MLI-OTP-0028-0586, 0729-39; Statement by P-125, MLI-OTP-0023-0004-R01, 0036; Video, MLI-OTP-0018-0148, especially 00:04:11:00–00:04:55:00, 00:07:35:00–00:08:28:00; First Agreed Facts, ICC-01/12-01/15-54-Conf-AnxA, page 6 (fact 36); Statement by P-65, MLI-OTP-0020-0019-R01, 0073-74; Videos, MLI-OTP-0018-0334, MLI-OTP-0018-0336, MLI-OTP-0018-0341; Report of Expert Witness P-75, MLI-OTP-0033-0140, 0163-65; Video, MLI-OTP-0012-1815; Statement by P-66, MLI- OTP-0019-0296-R01, 0343; Second Agreed Facts, ICC-01/12-01/15-83-Conf-AnxA, p. 4 (fact 73); Report of Expert Witnesses P-55 and P-57, MLI-OTP-0029-1138, 1158-64; Photograph, MLI-OTP-0018-2281.

88 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 105; P-151 testimony, ICC-01/12-01/15-T-5-Red-ENG, p. 39, line 4, to p. 40, line 5, p. 42, lines, 15-22, p. 44, line 11, to p. 45, line 2, p. 59, line 13, to p. 61, line 9; P-431 testimony, ICC-01/12-01/15-T-5-Red-ENG, p. 79, line 12, to p. 81, line 4; Statement by P-125, MLI-OTP-0023-0004-R01, 0017; Report of Expert Witness P-104, MLI-OTP-0028-0586, 0596-98; UNESCO's Study on the mausoleums of Timbuktu, MLI-OTP-0015-0081, 0092; UNESCO's Report on the Government's priorities for the world heritage sites threatened by the armed conflict in northern Mali, MLI-OTP-0017-0706; Cultural heritage of Timbuktu: issues and prospects, MLI-OTP-0014-5751, 5823-58; Timbuktu-Mali conservation and management plan, MLI-OTP-0007-0002, 0027-29, 0038.

89 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 33; UNESCO's World Heritage Convention Nomination Documentation, MLI-OTP-0004-0321; UNESCO's World heritage sites in Mali, MLI-OTP-0013-3630, 3715-26; Report of the World Heritage Committee, MLI-OTP-0006-3298, 3314; UNESCO's international experts meeting for the safeguarding of Mali's cultural heritage, MLI-OTP-0006-3459; P-151 testimony, ICC-01/12-01/15-T-5-Red-ENG, p. 53, line 17, to p. 55, line 23; Statement by P-151, MLI-OTP-0029-0843- R01, 0861.

90 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, paras. 52 and 106.

91 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, paras. 48 and 49; Second Agreed Facts, ICC-01/12-01/15-83-Conf-AnxA, p. 3 (facts 56 and 59).

92 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, paras. 47 and 48; First Agreed Facts, ICC-01/12-01/15-54-Conf-AnxA, p. 4 (fact 20); Second Agreed Facts, ICC-01/12-01/15-83-Conf-AnxA, pp. 3 and 4 (facts 61 and 62).

93 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 49; Second Agreed Facts, ICC-01/12-01/15-83-Conf-AnxA, p. 3 (fact 63); Sidi Mahamoud: Statement by Ahmad Al Faqi Al Mahdi, MLI-OTP-0033-4667, 4670-72; Video, MLI-OTP-0018-0357; Statement by P-65, MLI-OTP-0020-0019-R01, 0067; Sidi El Mokhtar: Video, MLI-OTP-0001-7037 from 00:45:08 to 00:45:15; Alpha Moya Cemetary: Second Agreed Facts, ICC-01/12-01/15-83-Conf-AnxA, page 4 (fact 69); Video, MLI-OTP-0001-7037 from 00:45:01 to 00:45:07; Three Saints Cemetery: Video, MLI-OTP-0018-0365; First Agreed Facts, ICC-01/12-01/15-54-Conf-AnxA, p. 6 (facts 29-30); Second Agreed Facts, ICC-01/12-01/15-83-Conf-AnxA, p. 4 (fact 68), Statement by P-125, MLI-OTP-0023-0004-R01, 0030-31, 0035, Statement by P-65, MLI-OTP-0020-0019-R01, 0069; Video, MLI-OTP-0012-1800; Sidi Yahia Mosque: First Agreed Facts, ICC-01/12-01/15-54-Conf-AnxA, p. 6 (facts 31-32); Video, MLI-OTP-0012-1928; Video, MLI-OTP-0018-0149, from 00:03:21 to 00:04:27; Second Agreed Facts, ICC-01/12-01/15-83-Conf-AnxA, p. 4 (fact 70); Djingareyber Mosque: First Agreed Facts, ICC-01/12-01/15-54-Conf-AnxA, p. 6 (fact 36); Video, MLI-OTP-0018-0148, from 00:07:35 to 00:13:19; Second Agreed Facts, ICC-01/12-01/15-83-Conf-AnxA, p. 4 (fact 71); Statement by P-65, MLI-OTP-0020-0019-R01, 0073.

94 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 77; Second Agreed Facts, ICC-01/12-01/15-83-Conf-AnxA, p. 4 (fact 69); Video, MLI-OTP-0001-7037 from 00:45:01 to 00:45:07.

95 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 83; First Agreed Facts, ICC-01/12-01/15-54-Conf-AnxA, p. 5 (fact 29); Second Agreed Facts, ICC-01/12-01/15-83-Conf-AnxA, p. 4 (fact 68); Video, MLI-OTP-0018-0365.

96 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, paras. 92-93; First Agreed Facts, ICC-01/12-01/15-54- Conf-AnxA, p. 5 (fact 32); Video, MLI-OTP-0018-0149, from 00:03:21 to 00:04:27; Second Agreed Facts, ICC-01/12-01/15-83-Conf-AnxA, p. 4 (fact 70).

97 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 100; First Agreed Facts, ICC-01/12-01/15-54-Conf-AnxA, p. 6 (fact 36); Video, MLI-OTP-0018-0148, from 00:07:35 to 00:13:19; Second Agreed Facts, ICC-01/12-01/15-83-Conf-AnxA, p. 4 (fact 71); Statement by P-65, MLI-OTP-0020-0019-R01, 0073.

98 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 51; Statement by P-65, MLI-OTP-0020-0019-R01, 0073, para. 245, 0067, paras. 225 and 226; Video MLI-OTP-0001-7037, from 00:45:08:12 to 00:45:17; Video, MLI-OTP-0009-1749, from 00:13:50 to 00:15:27 (Transcript, MLI-OTP-0028-0839, 0848-49); First Agreed Facts, ICC-01/12-01/15-54-Conf-AnxA, pp. 5 and 6 (facts 28, 33-45); Video, MLI-OTP-0018-0149, from 00:09:13 to 00:10:11 (Transcript, MLI-OTP-0024-2954, 2958-59) Video, MLI-OTP-0018-0148, from 00:13:24 to 00:17:36 (Transcripts, MLI-OTP-0028-0839, 0848-49); Video, MLI-OTP-0011-0177, from 00:00:30 to 00:00:40 (Transcript, MLI-OTP-0025-0333, 0335); Video MLI-OTP-0025-0174, from 00:02:09 to 00:02:27, from 00:01:13 to 00:01:33 (Transcript, MLI-OTP-0033-5504, 5506-07); Video, MLI-OTP-0018-0209 (Transcript, MLI-OTP-0033-5439, 5441) Video, MLI-OTP-0018-0358 (Transcript, MLI-OTP-0025-0330, 0332); Video, MLI-OTP-0018-0357 (Transcript, MLI-OTP-0025-0327); Video, MLI-OTP-0001-7037, at 00:45:08 (Transcript, MLI-OTP-0024-2962, 2989); Second Agreed Facts, ICC-01/12-01/15-83-Conf-AnxA, p. 3 (facts 65 and 66).

99 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 101; Video, MLI-OTP-0018-0148 (Transcript, MLI-OTP-0025-0337, 0341).

100 Constitution of the United Nations Educational, Scientific and Cultural Organization, 16 November 1945, preamble.

101 Video, MLI-OTP-0018-0148 (Translated transcript, MLI-OTP-0025-0337, 0340).

102 Video of 12 March 2012, MLI-OTP-0001-6924 (indicating that the group wants to introduce sharia for its members and other Muslims for peace and security in Mali); Jeune Afrique articles of 15 March and 8 April 2012, MLI-OTP-0001-3418, MLI-OTP-0001-3551; Video, MLI-OTP-0001-7037, from 00:19:30 to 00:20:12 (Transcript MLI-OTP-0024-2962, 2978); Sahara Media article of 16 April 2012, MLI-OTP-0001-3271.

103 See para. 31 of the present Judgment.

104 Appeals Chamber, The Prosecutor v. Thomas Lubanga Dyilo, Public redacted Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction, 1 December 2014, ICC-01/04-01/06-3121-Red, para. 462.

105 The Prosecution's submissions in support of conviction under Article 65(2) of the Statute, ICC-01/12-01/15-120-Conf, para. 31.

106 Preamble of the Statute, para. 4.

107 Preamble of the Statute, para. 5.

108 See also, Trial Chamber II, The Prosecutor v. Germain Katanga, Decision on Sentence pursuant to article 76 of the Statute, 23 May 2014, ICC-01/04-01/07-3484-tENG-Corr, paras. 37-38 (‘Katanga Sentencing Decision’); Trial Chamber III, The Prosecutor v. Jean-Pierre Bemba Gombo, Decision on Sentence pursuant to Article 76 of the Statute, 21 June 2016, ICC-01/05-01/08-3399, para. 10 (‘Bemba Sentencing Decision’).

109 Katanga Sentencing Decision, ICC-01/04-01/07-3484-tENG-Corr, para. 38.

110 Appeals Chamber, The Prosecutor v. Thomas Lubanga Dyilo, Judgment on the appeals of the Prosecutor and Mr Thomas Lubanga Dyilo against the “Decision on Sentence pursuant to Article 76 of the Statute”, 1 December 2014, ICC-01/04-01/06-3122, para. 40 (‘Lubanga AJ Sentencing Decision’); See also Bemba Sentencing Decision, ICC-01/05-01/08-3399, para. 11.

111 Lubanga AJ Sentencing Decision, ICC-01/04-01/06-3122, para. 32.

112 Lubanga AJ Sentencing Decision, ICC-01/04-01/06-3122, para. 33.

113 Lubanga AJ Sentencing Decision, ICC-01/04-01/06-3122, para. 34.

114 Lubanga AJ Sentencing Decision, ICC-01/04-01/06-3122, para. 35.

115 Lubanga AJ Sentencing Decision, ICC-01/04-01/06-3122, paras. 61-66.

116 Trial Chamber I, The Prosecutor v. Thomas Lubanga Dyilo, Decision on Sentence Pursuant to Article 76 of the Statute, 10 July 2012, ICC-01/04-01/06-2901, para. 44 (‘Lubanga Sentencing Decision’); Katanga Sentencing Decision, ICC-01/04-01/07-3484-tENG, paras. 44-69.

117 Bemba Sentencing Decision, ICC-01/05-01/08-3399, para. 13.

118 For example, the Chamber has considered the discriminatory nature of the attack as relevant for the assessment of the gravity of the crime rather than as an aggravating circumstance.

119 Bemba Sentencing Decision, ICC-01/05-01/08-3399, para. 14 and footnotes, in particular: Katanga Sentencing Decision, ICC-01/04-01/07-3484-tENG; Lubanga Sentencing Decision, ICC-01/04-01/06-2901, para. 35.

120 Katanga Sentencing Decision, ICC-01/04-01/07-3484-tENG, paras. 42 and 43.

121 Bemba Sentencing Decision, ICC-01/05-01/08-3399, para. 18 and footnotes, in particular: Katanga Sentencing Decision, ICC-01/04-01/07-3484-tENG, para. 34; Lubanga Sentencing Decision, ICC-01/04-01/06-2901, para. 33.

122 Bemba Sentencing Decision, ICC-01/05-01/08-3399, para. 19 and footnotes, in particular: Katanga Sentencing Decision, ICC-01/04-01/07-3484-tENG, paras. 32 and 34; Lubanga Sentencing Decision, ICC-01/04-01/06-2901, para. 34.

123 Katanga Sentencing Decision, ICC-01/04-01/07-3484-tENG, paras. 42 and 43; see also Defence Sentencing Observations, ICC-01/12-01/15-141-Corr-Red, paras. 121-123, 127-128.

124 See para. 38 of the present Judgment.

125 See paras. 35-37 of the present Judgment; see also Prosecution Sentencing Observations, ICC-01/12-01/15-139-Red, para. 37.

126 See para. 38 of the present Judgment; see also Prosecution Sentencing Observations, ICC-01/12-01/15-139-Red, para. 37.

127 See para. 40(v) of the present Judgment; see also Prosecution Sentencing Observations, ICC-01/12-01/15-139-Red, paras. 35, 37.

128 P-431's testimony, ICC-01/12-01/15-T-5-Red-ENG, p. 77, line 23, to p. 80, line 7; P-151's testimony, ICC-01/12-01/15-T-5-Red-ENG, p. 41, line 12, to p. 44, line 11.

129 P-431's testimony, ICC-01/12-01/15-T-5-Red-ENG, p. 80, line 8, to p. 81, line 4; P-151's testimony, ICC-01/12-01/15-T-5-Red-ENG, p. 44, line 11, to p. 45, line 9.

130 P-151's testimony, ICC-01/12-01/15-T-5-Red-ENG, p. 38, line 23, to p. 40, line 5.

131 See para. 34 of the present Judgment. See also, LRV Sentencing Observations, ICC-01/12-01/15-135-Conf, paras. 26-31.

132 See paras. 39 and 46 of the present Judgment. See also, Prosecution Sentencing Observations, ICC-01/12-01/15-139-Red, paras. 17-29, 61.

133 P-431's testimony, ICC-01/12-01/15-T-5-Red-ENG, p. 89, line 6, to p. 90, line 13.

134 P-151's testimony, ICC-01/12-01/15-T-5-Red-ENG, p. 59, line 11, to p. 61, line 9.

135 See Prosecution Sentencing Observations, ICC-01/12-01/15-139-Red, paras. 30, 62-63.

136 See para. 31 of the present Judgment.

137 See para. 33 of the present Judgment.

138 See paras. 35 and 36 of the present Judgment.

139 See para. 33 of the present Judgment.

140 See para. 40 of the present Judgment.

141 See para. 40(iv) of the present Judgment; see also Prosecution Sentencing Observations, ICC-01/12-01/15-139-Red, para. 34.

142 See paras. 37, 40(v) and 41 of the present Judgment; see also Prosecution Sentencing Observations, ICC-01/12-01/15-139-Red, paras. 35, 42.

143 Prosecution Sentencing Observations, ICC-01/12-01/15-139-Red, paras. 58-60.

144 Lubanga AJ Sentencing Judgment, ICC-01/04-01/06-3122, para. 82.

145 See para. 89 of the present Judgment.

146 Prosecution Sentencing Observations, ICC-01/12-01/15-139-Red, para. 61.

147 See paras. 78-80 of the present Judgment.

148 See para. 81 of the present Judgment.

149 See para. 36 of the present Judgment.

150 Defence Sentencing Observations, ICC-01/12-01/15-141-Corr-Red, paras. 158-163.

151 See paras. 37 and 40 of the present Judgment.

152 See para. 38(ix) of the present Judgment.

153 Statement by Mr Al Mahdi, MLI-OTP-0033-4645, 4656-4657.

154 Statement by Mr Al Mahdi, MLI-OTP-0033-4645, 4660. See also, Defence Sentencing Observations, ICC-01/12-01/15-141-Corr-Red, para. 164.

155 Defence Sentencing Observations, ICC-01/12-01/15-141-Corr-Red, paras. 150-155.

156 MLI-DEF-0001-0001, 0001; MLI-DEF-0002-0001, 0001. See also para. 9 of the present Judgment.

157 MLI-DEF-0001-0001, 0003; MLI-DEF-0002-0001, 0003.

158 Defence Sentencing Observations, ICC-01/12-01/15-141-Corr-Red, paras. 132 and 133.

159 Prosecution Sentencing Observations, ICC-01/12-01/15-139-Red, para. 48; Defence Sentencing Observations, ICC-01/12-01/15-141-Corr-Red, paras. 134 and 136; LRV Sentencing Observations, ICC-01/12-01/15-135-Conf, para. 38.

160 Prosecution Sentencing Observations, ICC-01/12-01/15-139-Red, para. 49; Defence Sentencing Observations, ICC-01/12-01/15-141-Corr-Red, paras. 192-195.

161 Annex II to Registry Observations, ICC-01/12-01/15-134-Conf-AnxII; ICC-01/12-01/15-T-4-Red-ENG, p. 9, lines 19-23.

162 Defence Sentencing Observations, ICC-01/12-01/15-141-Corr-Red, paras. 196-201.

163 P-182's testimony, ICC-01/12-01/15-T-4-Red-ENG, p. 118, line 19, to p. 119, line 4.

164 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, filed on 18 February 2016.

165 Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, pp. 10-34.

166 Prosecution Sentencing Observations, ICC-01/12-01/15-139-Red, paras. 51-52; Defence Sentencing Observations, ICC-01/12-01/15-141-Corr-Red, paras. 180-184. The fact that an admission of guilt constitutes a mitigating circumstance is well-established in the case law of other international tribunals: see, for example, ICTY, Trial Chamber I, The Prosecutor v. Miodrag Jokić, Sentencing Judgement, 18 March 2004, IT-01/42/1-S, para. 96 (‘Jokić SJ’); ICTY, Trial Chamber I, The Prosecutor v. Milan Babić, Sentencing Judgement, 29 June 2004, IT-03-72-S, paras. 73-75, 88-89.

167 See also para. 28 of the present Judgment.

168 P-182's testimony, ICC-01/12-01/15-T-4-Red-ENG, p. 118, line 16, to p. 119, line 4.

169 P-182's testimony, ICC-01/12-01/15-T-4-CONF-ENG, p. 96, line 23, to p. 98, line 3; ICC-01/12-01/15-T-5- Red-ENG, p. 16, line 15, to p. 17, line 16; See also ICC-01/12-01/15-119-Conf, para. 3.

170 Prosecution Sentencing Observations, ICC-01/12-01/15-139-Red, paras. 53-55, 67; Defence Sentencing Observations, ICC-01/12-01/15-141-Corr-Red, paras. 185-191.

171 ICC-01/12-01/15-T-4-Red-ENG, p. 8, line 3, to p. 9, line 23, p. 43, line 19, to p. 44, line 2.

172 ICC-01/12-01/15-T-4-Red-ENG, p. 8, line 11.

173 ICC-01/12-01/15-T-4-Red-ENG, p. 8, lines 20-21.

174 ICC-01/12-01/15-T-4-Red-ENG, p. 9, lines 7 and 8.

175 ICC-01/12-01/15-T-4-Red-ENG, p. 9, lines 16-18.

176 LRV Sentencing Observations, ICC-01/12-01/15-135-Conf, para. 39; ICC-01/12-01/15-T-6-ENG, p. 29, line 20, to p. 31, line 22.

177 Statement by Mr Al Mahdi, MLI-OTP-0033-4734, 4740-4734. See also, Defence Sentencing Observations, ICC-01/12-01/15-141-Corr-Red, paras. 171-179.

178 Prosecution Sentencing Observations, ICC-01/12-01/15-139-Red, paras. 64-70.

179 Defence Sentencing Observations, ICC-01/12-01/15-141-Corr-Red; ICC-01/12-01/15-T-6-ENG, p. 35, line 4, to p. 70, line 10.

180 LRV Sentencing Observations, ICC-01/12-01/15-135-Conf, paras. 45-50; ICC-01/12-01/15-T-6-ENG, p. 18, line 20, to p. 33, line 22.

181 Bemba Sentencing Decision, ICC-01/05-01/08-3399, para. 92 and footnotes.

182 ICC-01/12-01/15-T-6-ENG, p. 52, line 22, to p. 60, line 3, referencing Jokić SJ, IT-01/42/1-S; Strugar TJ, IT-01-42-T.

183 Article 24(1) of the ICTY Statute (‘[…] In determining the terms of imprisonment, the Trial C hambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia’).

184 Report of Expert Witness P-104, MLI-OTP-0024-0537; Statement by P-114, MLI-OTP-0023-0344-R01, 0354, para. 54; P-431 testimony, ICC-01/12-01/15-T-5-Red-ENG, p. 89, line 14, to p. 90, line 4; P-151 testimony, ICC-01/12-01/15-T-5-Red-ENG, p. 59, line 13, to p. 61, line 9.

185 Bemba Sentencing Decision, ICC-01/05-01/08-3399, para. 91.

186 See paras. 98-100 of the present Judgment.

187 See paras. 101-102 of the present Judgment.

188 See paras. 103 and 104 of the present Judgment.

189 See paras. 89, 91 and 93 of the present Judgment.

190 See paras. 97 of the present Judgment.

191 Mandat d'arrêt à l'encontre d'Ahmad AL FAQI AL MAHDI, 18 September 2015, ICC-01/12-01/15-1-Red (redacted version notified on 28 September 2015).

1 Judgment and Sentence, ICC-01/12-01/15-171 (‘Judgment’).

2 Reparations Phase Calendar, ICC-01/12-01/15-172.

3 Decision Granting an Extension of Time for Filing of TFV Submissions, 12 May 2017, ICC-01/12-01/15-219 (extended deadline for final submissions to 16 June 2017 for the LRV, Defence and TFV); Decision on LRV requests for submission of additional reparation applications and for an extension of time, 20 March 2017, ICC-01/12-01/15-209 (granting permission for the LRV to file any materials in its possession, including newly collected reparations applications and supporting documents, by 24 March 2017); Decision Granting an Extension of Time for Filing of Experts’ Report and Amending Reparations Calendar, 9 March 2017, ICC-01/12-01/15-206-Red (confidential version notified same day) (granting the request by Chamber appointed experts for additional time to submit their reports); Decision Appointing Reparations Experts and Partly Amending Reparations Calendar, 19 January 2017, ICC-01/12-01/15-203-Red (confidential version notified same day) (‘Expert Appointment Decision’); Decision on Registry Request for Extension of Time to Identify Experts and Partly Amending the Reparations Phase Calendar, 21 October 2016, ICC-01/12-01/15-177 (partly granting the request by the Registry for an extension of time to identify potential experts).

4 Decision on Application by the United Nations Educational, Scientific and Cultural Organization (‘UNESCO’) to Submit Amicus Curiae Observations, 31 October 2016, ICC-01/12-01/15-180; Decision on Application by Queen's University Belfast Human Rights Centre, the Redress Trust, the FIDH and AMDH to submit amicus curiae observations (ICC-01/12-01/15-175 and ICC-01/12-01/15-176), 25 October 2016, ICC-01/12-01/15-178.

5 Submissions on the reparations proceedings, ICC-01/12-01/15-187 (‘First TFV Submissions’).

6 Queen's University Belfast Human Rights Centre and the Redress Trust observations pursuant to Article 75(3) of the Statute and Rule 103 of the Rules, ICC-01/12-01/15-188 (‘HRC/Redress Submissions’); Joint observations of FIDH and AMDH on the reparations proceedings, ICC-01/12-01/15-189-tENG (English translation notified on 24 January 2017) (‘FIDH/AMDH Submissions’); Unesco Amicus Curiae Observations, ICC-01/12-01/15-194 (‘UNESCO Submissions’).

7 Submissions of the Legal Representative of Victims on the principles and forms of the right to reparation, ICC-01/12-01/15-190-Red-tENG (redacted version notified on 3 January 2017; English translation of confidential version notified on 24 January 2017 and public redacted version notified on 25 July 2017) (‘First LRV Submissions’).

8 General Defence observations on reparations, ICC-01/12-01/15-191-tENG (English translation notified on 26 January 2017) (‘First Defence Submissions’).

9 Prosecution's Submissions on Reparations, ICC-01/12-01/15-192-Red (redacted version notified on 7 December 2016).

10 Registry's observations pursuant to Trial Chamber VIII's Decision ICC-01/12-01/15-172 of 29 September 2016, ICC-01/12-01/15-193 (notified on 5 December 2016, with two annexes) (‘Registry Submissions’).

11 Calendar Decision, ICC-01/12-01/15-172, para. 2(iv).

12 First Transmission and Report on Applications for Reparations, ICC-01/12-01/15-200 (with 136 annexes; English translations of selected annexes notified on 15 August 2017).

13 Dépôt de pièces additionnelles en appui aux demandes en réparation déposées par le Greffe en date du 16 décembre 2016 (ICC-01/12-01/15-200), ICC-01/12-01/15-210-Red (with 126 annexes; redacted version of cover filing notified 28 April 2017; English translations of selected annexes notified on 15 August 2017).

14 Second Transmission and Report on Applications for Reparations, ICC-01/12-01/15-211 (with five annexes).

15 Of the 137 individual applicants, 46 (33%) are male and 91 (66%) are female.

16 List of Proposed Experts Pursuant to Trial Chamber VIII's Decisions ICC-01/12-01/15-172 of 19 September 2016 and ICC-01/12-01/15-177 of 21 October 2016, 9 December 2016, ICC-01/12-01/15-197 (with 21 annexes).

17 Observations de la Défense sur l'identification des experts devant intervenir dans la phase de réparations, 9 December 2016, ICC-01/12-01/15-198-Red (redacted version notified on 14 July 2017); Observations du Représentant légal des victimes sur le panel d'experts identifiés par le Greffe en application de la décision ICC-01 /12-01/15-172, 9 December 2016, ICC-01/12-01/15-196-Red (redacted version notified on 14 July 2017); Prosecution's Observations on Identification of Experts on Reparations, 8 December 2016, ICC-01/12-01/15-195-Red (redacted version notified on 14 July 2017).

18 Expert Appointment Decision, ICC-01/12-01/15-203-Red.

19 Formally notified by Transmission of Experts’ Reports pursuant to Trial Chamber Decision ICC-01/12-01/15-203-Red of 19 January 2017, 1 May 2017, ICC-01/12-01/15-214 (with three annexes; confidential redacted versions of annexes notified to the parties on 3 May 2017 and to the TFV on 4 May 2017; corrigendum of annexes II and III notified on 4 May 2017; public redacted versions of annexes notified on 4 and 14 August 2017). The annexed reports will hereinafter be referred to as ‘First Expert Report’, ‘Second Expert Report’ and ‘Third Expert Report’, respectively.

20 Final submissions of the Legal Representative on the implementation of a right to reparations for 139 victims under article 75 of the Rome Statute, ICC-01/12-01/15-224-Corr-Red-tENG (confidential translation notified on 19 July 2017 and public redacted translation notified on 10 August 2017) (‘Second LRV Submissions’).

21 Final Submissions of the Defence for Mr Al Mahdi in Anticipation of the Order for Reparations, ICC-01/12-01/15-226-Conf-tENG (English translation notified on 17 July 2017) (‘Second Defence Submissions’).

22 Final Submissions on the reparations proceedings, ICC-01/12-01/15-225 (‘Second TFV Submissions’).

23 First LRV Submissions, ICC-01/12-01/15-190-Red-tENG, paras 110-24, 147.

24 a/35140/16, ICC-01/12-01/15-200-Conf-Anx132-Red-tENG.

25 Second LRV Submissions, ICC-01/12-01/15-224-Corr-Red-tENG, pages 36-37.

26 First Defence Submissions, ICC-01/12-01/15-191-tENG, page 23.

27 Second Defence Submissions, ICC-01/12-01/15-226-Conf-tENG, pages 26-28 (relief sought is consolidated from the original list).

28 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, article 53; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, article 16; Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention, The Hague, 14 May 1954, article 4; Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999, article 15. See also Second Expert Report, ICC-01/12-01/15-214-AnxII-Red2, paras 14-29, citing, inter alia, United Nations Security Council resolutions condemning destructions of cultural heritage.

29 Articles 8(2)(b)(ix) and 8(2)(e)(iv) of the Statute.

30 Second Expert Report, ICC-01/12-01/15-214-AnxII-Red2, paras 44-48.

31 UNESCO Submissions, ICC-01/12-01/15-194, para. 1.

32 First Expert Report, ICC-01/12-01/15-214-AnxI-Red3, page 4.

33 First Expert Report, ICC-01/12-01/15-214-AnxI-Red3, page 5.

34 Second Expert Report, ICC-01/12-01/15-214-AnxII-Red2, para. 24.

35 First Expert Report, ICC-01/12-01/15-214-AnxI-Red3, page 4.

36 HRC/Redress Submissions, ICC-01/12-01/15-188, para. 7.

37 Second Expert Report, ICC-01/12-01/15-214-AnxII-Red2, para. 30.

38 HRC/Redress Submissions, ICC-01/12-01/15-188, para. 8 (quoting Lyndel Prott).

39 HRC/Redress Submissions, ICC-01/12-01/15-188, para. 6.

40 Convention Concerning the Protection of the World Cultural and Natural Heritage, adopted 16 November 1972 and entered into force 17 December 1975, United Nations, Treaty Series, vol. 1037.

41 Second Expert Report, ICC-01/12-01/15-214-AnxII-Red2, para. 33.

42 Second Expert Report, ICC-01/12-01/15-214-AnxII-Red2, paras 31 and 40-42.

43 Second Expert Report, ICC-01/12-01/15-214-AnxII-Red2, para. 41.

44 HRC/Redress Submissions, ICC-01/12-01/15-188, para. 7.

45 Second Expert Report, ICC-01/12-01/15-214-AnxII-Red2, para. 44.

46 United Nations General Assembly Resolution 40/34 (‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power’), 29 November 1985, UN Doc. A/RES/40/34.

47 United Nations General Assembly Resolution 60/147 (‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’), 21 March 2006, UN Doc. A/RES/60/147.

48 Appeals Chamber, The Prosecutor v. Thomas Lubanga Dyilo, Judgment on the appeals against “Decision establishing the principles and procedures to be applied to reparations” of 7 August 2012 with AMENDED order for reparations (Annex A) and public annexes 1 and 2, 3 March 2015, ICC-01/04-01/06-3129, para. 55, ICC-01/04-01/06-3129-AnxA, para. 5 (‘Lubanga Reparations AJ’, with its Annex A as ‘Lubanga Reparations AO’).

49 Ordonnance de réparation en vertu de l'article 75 du Statut, 24 March 2017, ICC-01/04-01/07-3728 (‘Katanga Reparations Order’), paras 29-30.

50 Lubanga Reparations AO, ICC-01/04-01/06-3129-AnxA, paras 1-22 and 29-49. See also Katanga Reparations Order, ICC-01/04-01/07-3728, paras 29-63.

51 Lubanga Reparations AO, ICC-01/04-01/06-3129-AnxA, para. 2.

52 Lubanga Reparations AO, ICC-01/04-01/06-3129-AnxA, para. 71.

53 Lubanga Reparations AO, ICC-01/04-01/06-3129-AnxA, paras 12-13 and 31.

54 On similar lines, see Lubanga Reparations AO, ICC-01/04-01/06-3129-AnxA, para.19 (recognising that priority can be given for certain victims ‘who are in a particularly vulnerable situation or who require urgent assistance’). See para 140, below, for a discussion of the prioritisation.

55 Lubanga Reparations AO, ICC-01/04-01/06-3129-AnxA, para. 29.

56 Lubanga Reparations AO, ICC-01/04-01/06-3129-AnxA, para. 16.

57 Lubanga Reparations AO, ICC-01/04-01/06-3129-AnxA, para. 15.

58 Lubanga Reparations AO, ICC-01/04-01/06-3129-AnxA, para. 44.

59 Lubanga Reparations AO, ICC-01/04-01/06-3129-AnxA, para. 47; See also Second TFV Submissions, ICC-01/12-01/15-225, paras 16-17.

60 First Expert Report, ICC-01/12-01/15-214-AnxI-Red3, page 6. See also Lubanga Reparations AO, ICC-01/04-01/06-3129-AnxA, para. 18.

61 Lubanga Reparations AO, ICC-01/04-01/06-3129-AnxA, para. 48; Second TFV Submissions, ICC-01/12-01/15-225, paras 23-24.

62 See Lubanga Reparations AO, ICC-01/04-01/06-3129-AnxA, para. 50; Katanga Reparations Order, ICC-01/04-01/07-3728, paras 323-25.

63 Rule 97(3) of the Rules; Lubanga Reparations AO, ICC-01/04-01/06-3129-AnxA, para. 49.

64 Lubanga Reparations AJ, ICC-01/04-01/06-3129, para. 32.

65 Decision on Victim Participation at Trial and on Common Legal Representation of Victims, 8 June 2016, ICC-01/12-01/15-97-Red (confidential version notified same day) (‘Victim Participation Decision’).

66 See para. 44, below. For participation at trial, only a prima facie standard applies. Victim Participation Decision, ICC-01/12-01/15-97-Red, paras 17, 23.

67 Victim Participation Decision, ICC-01/12-01/15-97-Red, paras 16-19 and 23-26.

68 Lubanga Reparations AO, ICC-01/04-01/06-3129-AnxA, para. 8.

69 See Lubanga Reparations AJ, ICC-01/04-01/06-3129, para. 185 (‘In amending the Impugned Decision, the Appeals Chamber stresses that it limits itself to the circumstances of this case. In this regard, the limitations set in the present judgment with respect to the harm caused to direct and indirect victims as a result of the crimes for which Mr Lubanga was convicted for purposes of reparations is without prejudice to other potential scenarios, such as where a Trial Chamber makes a finding in the order for reparations of a harm for which reparations may be awarded: 1) that is based on evidence presented under regulation 56 of the Regulations of the Court during the trial only for the purposes of reparations and which was not relied upon for factual findings relevant to the conviction and sentence of the person; 2) is based on evidence received at a reparation hearing, in written submissions from the parties and participants, or from experts who were engaged for the purpose of providing such evidence; or 3) is based on evidence contained in a request for reparations pursuant to rule 94 of the Rules of Procedure and Evidence that identifies a harm that is not mentioned in the decisions on conviction and sentence. The Appeals Chamber notes that the above scenarios are relevant to the time frame prior to the issuance of an order for reparations and that the Court's statutory framework provides for the convicted person to be able to challenge any such evidence that could potentially be relied upon in the eventual order for reparations’).

70 Ka tanga Reparations Order, ICC-01/04-01/07-3728, para. 189.

71 The Chamber notes that the Appeals Chamber has ruled that the causation standard ought to be determined on a case-by-case basis and sees no compelling reason to deviate from the standard identified in the Lubanga case. Lubanga Reparations AO, ICC-01/04-01/06-3129-AnxA, paras 11 and 59.

72 ‘Proximate Cause’ under ‘Cause’, Black's Law Dictionary (10th ed. 2014).

73 Lubanga Reparations AO, ICC-01/04-01/06-3129-AnxA, paras 22 and 65.

74 Rule 98(1)-(2) of the Rules.

75 Rule 98(3) of the Rules.

76 S ee Lubanga Reparations AJ, ICC-01/04-01/06-3129, para. 155.

77 Rule 98(4) of the Rules.

78 Lubanga Reparations AO, ICC-01/04-01/06-3129-AnxA, paras 20-21.

79 Judgment, ICC-01/12-01/15-171, para. 80.

80 First Expert Report, ICC-01/12-01/15-214-AnxI-Red3, page 6 (quoting a joint statement of two UN Special Rapporteurs in 2012: ‘[T]he destruction of tombs of ancient Muslim saints in Timbuktu, a common heritage of humanity, is a loss for us all, but for the local population it also means the denial of their identity, their beliefs, their history and their dignity’).

81 UNESCO Submissions, ICC-01/12-01/15-194, para. 15.

82 First Expert Report, ICC-01/12-01/15-214-AnxI-Red3, page 27.

83 First Expert Report, ICC-01/12-01/15-214-Conf-AnxI-Red, page 27.

84 Second Expert Report, ICC-01/12-01/15-214-Conf-AnxII-Red, para. 126.

85 First Expert Report, ICC-01/12-01/15-214-AnxI-Red3, page 28.

86 It is noted that many inhabitants of Timbuktu fled Timbuktu due to the occupation. Second TFV Submissions, ICC-01/12-01/15-225, para. 15, citing First LRV Submissions, ICC-01/12-01/15-190-Red-tENG, paras 15-16. S ee also FIDH/AMDH Submissions, ICC-01/12-01/15-189-tENG, paras 36-37.

87 S ee Lubanga Reparations AJ, ICC-01/04-01/06-3129, para. 185.

88 Although the present order focuses primarily on the 139 reparations applications before it, the Chamber has also taken into account the information provided by two victims who requested reparations in their applications to participate at trial, but did not subsequently submit a further reparations application. See Annex 2 to the Transmission of the public redacted version of three applications for participation in the proceedings, 25 May 2016, ICC-01/12-01/15-90-Anx2-Red2 (a/35001/16; public redacted version of application notified on 21 June 2016) and Annex 1 to the Transmission of the public redacted version of five applications for participation in the proceedings, 25 July 2016, ICC-01/12-01/15-142-Anx1-Red2 (a/35003/16; cover filing notified on 26 July 2016 and public redacted version of application notified on 20 September 2016).

89 First Expert Report, ICC-01/12-01/15-214-AnxI-Red3, pages 32, 42; Second Expert Report, ICC-01/12-01/15-214-AnxII-Red2, paras. 82, 92; First LRV Submissions, ICC-01/12-01/15-190-Red-tENG, para. 100; Annex 2 of the Registry Submissions, ICC-01/12-01/15-193-Conf-AnxII, paras 13, 18, 46, 50; FIDH/AMDH Submissions, ICC-01/12-01/15-189-tENG, paras 51-55.

90 Second Expert Report, ICC-01/12-01/15-214-AnxII-Red2, paras 87-124; First LRV Submissions, ICC-01/12-01/15-190-Red-tENG, paras 95, 99; Second LRV Submissions, ICC-01/12-01/15-224-Corr-Red-tENG, paras 35, 38.

91 First Defence Submissions, ICC-01/12-01/15-191-tENG, para. 56.

92 Regulations 60-65 of the Regulations of the TFV. See paragraphs 141-146, below.

93 Lubanga Reparations AJ, ICC-01/04-01/06-3129, para. 148(f).

94 Lubanga Reparations AJ, ICC-01/04-01/06-3129, para. 212.

95 Judgment, ICC-01/12-01/15-171, paras 38, 63.

96 Judgment, ICC-01/12-01/15-171, para. 78.

97 a/35009/16, ICC-01/12-01/15-210-Conf-Anx11-Red-tENG, page 2.

98 a/35010/16, ICC-01/12-01/15-210-Conf-Anx12-Red-tENG, page 2.

99 a/35029/16, ICC-01/12-01/15-210-Conf-Anx22-Red-tENG, page 2.

100 a/35144/16, ICC-01/12-01/15-200-Conf-Anx134-Red-tENG, page 2.

101 Second Expert Report, ICC-01/12-01/15-214-AnxII-Red2, paras 56-60; a/35029/16, ICC-01/12-01/15-210-Conf-Anx22-Red-tENG, page 2; a/35004/16, ICC-01/12-01/15-210-Conf-Anx7-Red-tENG, page 2; a/35081/16, ICC-01/12-01/15-200-Conf-Anx74-Red-tENG, page 2; a/35009/16, ICC-01/12-01/15-210-Conf-Anx11-Red-tENG, page 2.

102 UNESCO Submissions, ICC-01/12-01/15-194, para. 12. See also Third Expert Report, ICC-01/12-01/15-214-AnxIII-Red2, pages 35-99.

103 UNESCO Submissions, ICC-01/12-01/15-194, para. 15.

104 Second Defence Submissions, ICC-01/12-01/15-226-Conf-tENG, para. 35.

105 In agreement with FIDH/AMDH Submissions, ICC-01/12-01/15-189-tENG, paras 39-41.

106 S ee Rule 97(1) of the Rules.

107 Second Expert Report, ICC-01/12-01/15-214-AnxII-Red2, paras 77-79; First Expert Report, ICC-01/12-01/15-214-AnxI-Red3, pages 21-22; FIDH/AMDH Submissions, ICC-01/12-01/15-189-tENG, paras 17-18, 41.

108 Second Defence Submissions, ICC-01/12-01/15-226-Conf-tENG, paras 24-25.

109 Judgment, ICC-01/12-01/15-171, paras 89-93.

110 a/35055/16, ICC-01/12-01/15-200-Conf-Anx48-Red-tENG, page 2; a/35109/16, ICC-01/12-01/15-200-Conf-Anx101-Red-tENG, page 2; a/35133/16, ICC-01/12-01/15-200-Conf-Anx125-Red-tENG, page 1; First LRV Submissions, ICC-01/12-01/15-190-Red-tENG, paras 42-46; HRC/Redress Submissions, ICC-01/12-01/15-188, paras 81-87; First Expert Report, ICC-01/12-01/15-214-Conf-AnxI-Red, page 41.

111 Judgment, ICC-01/12-01/15-171, paras 103-05.

112 Transcript of Hearing, 22 August 2016, ICC-01/12-01/15-T-4-Red-ENG, page 8, lines 13-16 (emphasis added).

113 Transcript of Hearing, 22 August 2016, ICC-01/12-01/15-T-4-Red-ENG, page 8 line 3, to page 9 line 23.

114 Judgment, ICC-01/12-01/15-171, para. 108.

115 The LRV defines a ‘maçon’ (mason) as follows: ‘a pivotal figure in the historical and religious shrine. He alone is the embodiment of expertise in the building of the shrine and its bequeathal to the next generation. He is greatly skilled in the substantial aspects of the mausoleum and oversees building and burials. He is selected in a unique and fitting process by the prominent family of the descendants of the mausoleum’. First LRV Submissions, ICC-01/12-01/15-190-Red-tENG, para. 25(f).

116 a/35020/16, ICC-01/12-01/15-210-Conf-Anx13-Red-tENG, page 2.

117 a/35030/16, ICC-01/12-01/15-210-Conf-Anx23-Red-tENG, page 3.

118 a/35022/16, ICC-01/12-01/15-210-Conf-Anx15-Red-tENG, page 2.

119 a/35002/16, ICC-01/12-01/15-200-Conf-Anx6-Red-tENG, page 2. The LRV defines a ‘marabout’ as follows: ‘in the sense of a seer, but with the difference that the Marabout has a part in the role played by religious beliefs and practices within the observance of the body of rites and precepts by the population of Timbuktu’. First LRV Submissions, ICC-01/12-01/15-190-Red-tENG, para. 25(g).

120 Third Expert Report, ICC-01/12-01/15-214-Conf-AnxIII-Red, pages 123-134; Second Expert Report, ICC-01/12-01/15-214-AnxII-Red2, paras 80-84. See also First LRV Submissions, ICC-01/12-01/15-190-Red-tENG, paras 66-70.

121 Judgment, ICC-01/12-01/15-171, paras 34-37.

122 Third Expert Report, ICC-01/12-01/15-214-Conf-AnxIII-Red, pages 123-134; Second Expert Report, ICC-01/12-01/15-214-AnxII-Red2, paras 80-84.

123 Second LRV Submissions, ICC-01/12-01/15-224-Corr-Red-tENG, page 37.

124 S ee para. 146, below.

125 S ee para. 146(ii), below.

126 Second LRV Submissions, ICC-01/12-01/15-224-Corr-Red-tENG, paras 87-91.

127 Second Expert Report, ICC-01/12-01/15-214-AnxII-Red2, para. 125; First Expert Report, ICC-01/12-01/15-214-Conf-AnxI-Red, page 42.

128 First LRV Submissions, ICC-01/12-01/15-190-Conf-tENG, para.67.

129 Second Expert Report, ICC-01/12-01/15-214-Conf-AnxII-Red, paras 66, 130, 133.

130 S ee First LRV Submissions, ICC-01/12-01/15-190-Conf-tENG, para. 68.

131 Lubanga Reparations AJ, ICC-01/04-01/06-3129, para. 155.

132 See First Expert Report, ICC-01/12-01/15-214-AnxI-Red3, page 43; Annex 1 to the Registry Submissions, ICC-01/12-01/15-193-AnxI-Red, para. 44; a/35140/16, ICC-01/12-01/15-200-Conf-Anx132-Red-tENG, page 2.

133 Judgment, ICC-01/12-01/15-171, para. 108.

134 Forms of moral harm related to disruption of culture have been recognised in international human rights jurisprudence. Inter-American Court of Human Rights (‘IACtHR’), Plan de Sánchez Massacre v. Guatemala, Judgment (Reparations), 19 November 2004 (‘Sánchez Reparations Judgment’), paras 77, 85-88; IACtHR, Yakye Axa Indigenous Community v. Paraguay, Judgment (Merits, Reparations and Costs), 17 June 2005, paras 154, 203.

135 a/35006/16, ICC-01/12-01/15-210-Conf-Anx9-Red-tENG, page 2.

136 a/25113/14, ICC-01/12-01/15-200-Conf-Anx3-Red-tENG, page 2.

137 a/35000/16, ICC-01/12-01/15-200-Conf-Anx5-Red-tENG, page 2.

138 a/35002/16, ICC-01/12-01/15-210-Conf-Anx6-Red-tENG, page 2.

139 a/35049/16, ICC-01/12-01/15-200-Conf-Anx42-Red-tENG, page 2.

140 a/35063/16, ICC-01/12-01/15-200-Conf-Anx56-Red-tENG, page 2.

141 a/35067/16, ICC-01/12-01/15-200-Conf-Anx60-Red-tENG, page 2.

142 a/35010/16, ICC-01/12-01/15-210-Conf-Anx12-Red-tENG, page 2.

143 a/35029/16, ICC-01/12-01/15-210-Conf-Anx22-Red-tENG, page 2.

144 a/35056/16, ICC-01/12-01/15-200-Conf-Anx49-Red-tENG, page 2.

145 Third Expert Report, ICC-01/12-01/15-214-AnxIII-Red2, pages 146-49; Second Expert Report, ICC-01/12-01/15-214-AnxII-Red2, para. 65; First Expert Report, ICC-01/12-01/15-214-AnxI-Red3, page 29; a/35069/16, ICC-01/12-01/15-200-Conf-Anx62-Red-tENG, page 2; a/35140/16, ICC-01/12-01/15-200-Conf-Anx132-Red-tENG, page 2; a/35138/16, ICC-01/12-01/15-200-Conf-Anx130-Red-tENG, page 2; a/35135/16, ICC-01/12-01/15-200-Conf-Anx127-Red-tENG, page 2; a/35130/16, ICC-01/12-01/15-200-Conf-Anx122-Red-tENG, page 2.

146 Second LRV Submissions, ICC-01/12-01/15-224-Corr-Red-tENG, paras 44-59.

147 S ee paras 77-82, above.

148 First Defence Submissions, ICC-01/12-01/15-191-tENG, page 23.

149 First LRV Submissions, ICC-01/12-01/15-190-Conf-tENG, para. 77.

150 S ee also First Expert Report, ICC-01/12-01/15-214-Conf-AnxI-Red, page 21.

151 a/35140/16, ICC-01/12-01/15-200-Conf-Anx132-Red, page 2.

152 Judgment, ICC-01/12-01/15-171, paras 36-38, 54.

153 Egs a/35096/16, ICC-01/12-01/15-200-Conf-Anx89-Red-tENG, page 2 (‘My nephew [REDACTED] was killed during the attack and destruction.’); a/35102/16, ICC-01/12-01/15-200-Conf-Anx94-Red-tENG, page 1 (‘I experienced the destruction and I lost my [REDACTED] since they fired when he tried to resist.’); a/35092/16, ICC-01/12-01/15-200-Conf-Anx85-Red-tENG, page 1 (‘I was present during the destruction. I was devastated since at that very moment I lost my belongings and close family members were killed. I don't forgive.’); a/35039/16, ICC-01/12-01/15-200-Conf-Anx32-Red-tENG, page 2 (‘The destruction caused me suffering. They killed my [REDACTED] during the destruction of the mosque.’).

154 Second Expert Report, ICC-01/12-01/15-214-AnxII-Red2, paras 69-73; First Expert Report, ICC-01/12-01/15-214-Conf-AnxI-Red, page 42. See also Second LRV Submissions, ICC-01/12-01/15-224-Corr-Red- tENG, paras 60-65.

155 Second Defence Submissions, ICC-01/12-01/15-226-Conf-tENG, para. 26.

156 See Judgment, ICC-01/12-01/15-171, paras 36-38, 54.

157 First LRV Submissions, ICC-01/12-01/15-190-Red-tENG, para. 51.

158 Judgment, ICC-01/12-01/15-171, paras 36-38, 54.

159 a/35046/16, ICC-01/12-01/15-200-Conf-Anx39-Red-tENG, page 2 (‘They took our herd of cows and pillaged my house.’); a/35047/16, ICC-01/12-01/15-200-Conf-Anx40-Red-tENG, page 2 (‘I lost everything in the destruction. My herds were stolen and my house was destroyed.’); a/35093/16, ICC-01/12-01/15-200-Conf-Anx86-Red-tENG, page 2 (‘I had a shop where I sold things before the events. On the day of the destruction, everything was pillaged.’); a/35115/16, ICC-01/12-01/15-200-Conf-Anx107-Red-tENG, page 1 (‘I was present during the destruction and I was affected to the depths of my soul. Our entire house was destroyed […]’).

160 a/35133/16, ICC-01/12-01/15-200-Conf-Anx125-Red-tENG, page 2 (‘I fled leaving everything behind me. I feel great mental suffering and physical exhaustion. I left my animals and belongings, which were pillaged.’); a/35056/16, ICC-01/12-01/15-200-Conf-Anx49-Red-tENG, page 1 (‘I experienced the destruction and I was present. […] I fled to take refuge. The jihadists took everything from my house during the destruction.’); a/35036/16, ICC-01/12-01/15-200-Conf-Anx29-Red-tENG, page 2 (‘We fled with […] when the mausoleum was destroyed[.] […] All my belongings were pillaged.’); a/35117/16, ICC-01/12-01/15-200-Conf-Anx109-Red-tENG, page 1 (‘I was devastated. I was affected and I fled, leaving all my animals and goods behind.’).

161 I n agreement, see Second Expert Report, ICC-01/12-01/15-214-AnxII-Red2, para. 79.

162 S ee paras 72-83, above.

163 S ee paras 84-92, above.

164 See especially paragraph 34, above.

165 Second LRV Submissions, ICC-01/12-01/15-224-Conf-Corr-tENG, para. 11 (indicating this request stems from a consultation with the Malian authorities).

166 Lubanga Reparations AJ, ICC-01/04-01/06-3129, para. 118.

167 First LRV Submissions, ICC-01/12-01/15-190-Red-tENG, para. 144.

168 Regulation 56 of the Regulations of the TFV.

169 TFV, The Prosecutor v. Jean Pierre Bemba Gombo, Observations relevant to reparations, 31 October 2016, ICC-01/05-01/08-3457, para. 76.

170 First Defence Submissions, ICC-01/12-01/15-191-tENG, para. 41(b). In the Second Defence Submissions, on page 28(n), the Defence requests that it be entitled to comment on all aspects of the reparations proceedings, including the sum-total amount of the reparations award. Yet other Defence submissions demonstrate its awareness that it is the present order – and not some future decision – that will set Mr Al Mahdi's total liability. In any case, the Defence has had many opportunities to make submissions on the sum-total amount of reparations in the lead-up to the present order.

171 The Registry's Observations on Mr Ahmad Al Faqi Al Mahdi's Solvency and Conduct while in Detention, 21 July 2016, ICC-01/12-01/15-134 (with two annexes). In Annex I, it is indicated that ‘inquiries so far conducted involving the Registry, the Office of the Prosecutor, the Malian authorities and public sources have not produced any evidence to contradict Mr Al Mahdi's claim to have no assets’. In the same annex, the Registry undertakes to keep the Chamber abreast of any developments in this same annex, but to date no developments of significance have been reported. ICC-01/12-01/15-134-Conf-Exp-AnxI, para. 6; see also ICC-01/12-01/15-227-Conf-Exp (with annex).

172 Lubanga Reparations AJ, ICC-01/04-01/06-3129, paras 102-05.

173 First Defence Submissions, ICC-01/12-01/15-191-tENG, para. 41(d); Second Defence Submissions, ICC-01/12-01/15-226-Conf-tENG, para. 55.

174 In the First Defence Submissions (ICC-01/12-01/15-191-tENG, para. 41), the Defence refers to para. 74 of the Lubanga Reparations AJ in this context, but this paragraph clarifies only the point that ‘the Trust Fund is an intermediary, but does not replace the convicted person’. Lubanga Reparations AJ, ICC-01/04-01/06-3129, para. 74.

175 UNESCO Submissions, ICC-01/12-01/15-194, para. 12 (Converted from three million US dollars).

176 Third Expert Report, ICC-01/12-01/15-214-Conf-AnxIII-Red, page 134.

177 Expert Report, MLI-OTP-0024-0537, 0564, 0597, 0607, 0618, 0635, 0646.

178 Judgment, ICC-01/12-01/15-171, para. 108, n. 184.

179 1 euro is approximately 656 CFA francs.

180 Third Expert Report, ICC-01/12-01/15-214-Conf-AnxIII-Red, page 132.

181 The author of the Second Expert Report provides some monetary amounts in relation to admission fees between 2012 and 2015, but concedes that the attack led to an overall decline in earning capacity that is ‘not easily quantifiable’. Second Expert Report, ICC-01/12-01/15-214-Conf-AnxII-Red, paras 80-84.

182 First Expert Report, ICC-01/12-01/15-214-AnxI-Red3, page 32.

183 Third Expert Report, ICC-01/12-01/15-214-Conf-AnxIII-Red, page 132 (9.16 million euros).

184 Third Expert Report, ICC-01/12-01/15-214-Conf-AnxIII-Red, page 145.

185 Second Defence Submissions, ICC-01/12-01/15-226-Conf-tENG, para. 61; First Defence Submissions, ICC-01/12-01/15-191-tENG, page 23.

186 UNESCO Submissions, ICC-01/12-01/15-194, para. 12; Third Expert Report, ICC-01/12-01/15-214-AnxIII- Red2, page 125.

187 For example, according to press articles the Sidi Yahia mosque re-opened only in 2016. DW, Timbuktu's restored Sidi Yahya Mosque 'carries political weight' , 20 September 2016.

188 See especially Third Expert Report, ICC-01/12-01/15-214-Conf-AnxIII-Red, pages 124-28. The experts state at one point on page 125 that they do make estimates for the period between 2015 and 2017, but all the concrete figures in relation to the economic loss in Timbuktu are for the three year period of 2012-2015.

189 Third Expert Report, ICC-01/12-01/15-214-Conf-AnxIII-Red, pages 123-124 (27.6 million CFA francs, or approximately 42,000 euros).

190 Third Expert Report, ICC-01/12-01/15-214-Conf-AnxIII-Red, pages 126, 128. The losses removed are for car and plane transport to/from Timbuktu – transport costs incurred while in Timbuktu (such as chauffeur costs) are retained. These items, once removed, amount to a total of 3.11 billion CFA francs (1,296,000,000+720,000,000+274,500,000+823,500,000), which converts to 4.74 million euros.

191 Third Expert Report, ICC-01/12-01/15-214-AnxIII-Red2, page 125.

192 Third Expert Report, ICC-01/12-01/15-214-AnxIII-Red2, page 125.

193 First LRV Submissions, ICC-01/12-01/15-190-Red-tENG, para. 73.

194 ICTY, Trial Chamber I, Prosecutor v. Miodrag Jokić, Sentencing Judgement, 18 March 2004, IT-01-42/1-S, para. 52.

195 Third Expert Report, ICC-01/12-01/15-214-Conf-AnxIII-Red, page 148.

196 Second Expert Report, ICC-01/12-01/15-214-Conf-AnxII-Red, paras 66-67, citing Eritrea Ethiopia Claims Commission, The State of Eritrea v. The Federal Democratic Republic of Ethiopia, Final Award (Eritrea's Damages Claims), 17 August 2009, paras 217-23.

197 1 USD in 2009, at the time of the case cited by the expert, is worth about 1.14 USD in 2017.

198 The author of the Second Expert Report makes reference to the Plan de Sánchez Massacre v. Guatemala judgment whereby the IACtHR concluded that 20,000 USD of non-pecuniary harm had been suffered, among other things, for disruption of culture. But disruption of culture was one of several kinds of non-pecuniary harm determined by the IACtHR, and it is unclear from this case as to what fraction of the 20,000 USD award derives specifically from this factor. Second Expert Report, ICC-01/12-01/15-214-Conf-AnxII-Red, para. 62, citing IACtHR, Sánchez Reparations Judgment, paras 77, 87-88.

199 See generally Regulation 50(b) of the Regulations of the TFV; Appeals Chamber, The Prosecutor v. Thomas Lubanga Dyilo, Decision on the admissibility of the appeals against Trial Chamber I's “Decision establishing the principles and procedures to be applied to reparations” and directions on the further conduct of proceedings, 14 December 2012, ICC-01/04-01/06-2953, A A2 A3 OA21, para. 53 (delineating the reparations phase into ‘two distinct parts: 1) the proceedings leading to the issuance of the order for reparations; and 2) the implementation of the order for reparations, which the Trust Fund may be tasked with carrying out’).

200 S ee Regulations 54 and 57 of the Regulations of the TFV.

201 The TFV recently confirmed that it considers it can complement both individual and collective awards. TFV, The Prosecutor v. Germain Katanga, Notification pursuant to regulation 56 of the TFV Regulations regarding the Trust Fund Board of Director's decision relevant to complementing the payment of the individual and collective reparations awards as requested by Trial Chamber II in its 24 March 2017 order for reparations, 17 May 2017, ICC-01/04-01/07-3740, para. 18.

202 ICC-01/04-01/07-3740, para. 30.

203 First LRV Submissions, ICC-01/12-01/15-190-Red-tENG, para. 54.

204 See para. 58, above. See also First LRV Submissions, ICC-01/12-01/15-190-Red-tENG, para. 129; Second LRV Submissions, ICC-01/12-01/15-224-Corr-Red-tENG, paras 14-15.

205 Lubanga Reparations AJ, ICC-01/04-01/06-3129, para. 152.

206 Lubanga Reparations AJ, ICC-01/04-01/06-3129, paras 142, 167.

207 Regulations 60-65 of the Regulations of the TFV.

208 Regulation 59 of the Regulations of the TFV.

209 Regulations 62-65 of the Regulations of the TFV.

210 The TFV has made submissions confirming its capacity to conduct administrative screenings. See First TFV Submissions, ICC-01/12-01/15-187, paras 56-63.

211 Rule 97(3) of the Rules.

212 First Defence Submissions, ICC-01/12-01/15-191-tENG, paras 39, 56(b); Second Defence Submissions, ICC-01/12-01/15-226-Conf-tENG, para. 63, page 26 at (e).

213 First Expert Report, ICC-01/12-01/15-214-Conf-AnxI-Red, page 40.

214 S ee Regulations 62-65 of the Regulations of the TFV.

215 Regulation 62 of the Regulations of the TFV provides that: ‘[t]he Secretariat shall verify that any persons who identify themselves to the Trust Fund are in fact members of the beneficiary group, in accordance with any principles set out in the order of the Court.’ (emphasis added). Regulation 63 also discusses the standard of proof for the verification exercise ‘[s]ubject to any stipulations set out in the order of the Court’.

216 Lubanga Reparations AJ, ICC-01/04-01/06-3129, paras 160-62.

217 Article 82(4) of the Statute.

218 See Second Expert Report, ICC-01/12-01/15-214-AnxII-Red2, paras 89, 103, 112-13, 119, 121-23. See also Third Expert Report, ICC-01/12-01/15-214-AnxIII-Red2, pages 136-42; First LRV Submissions, ICC-01/12-01/15-190-Red-tENG, para. 133; Second LRV Submissions, ICC-01/12-01/15-224-Corr-Red-tENG, para. 74, 98.

219 Second Expert Report, ICC-01/12-01/15-214-AnxII-Red2, paras 89, 114-18, 124; First Expert Report, ICC-01/12-01/15-214-AnxI-Red3, pages 48-49.

220 As requested in Second LRV Submissions, ICC-01/12-01/15-224-Corr-Red-tENG, paras 101, 110.

References

ENDNOTES

1 Prosecutor v. Ahmad Al Faqi Al Mahdi, Case No. ICC-01/12-01/15, Judgment and Sentence (Sept. 27, 2016), available at https://www.icc-cpi.int/CourtRecords/CR2016_07244.PDF [hereinafter Judgment and Sentence].

2 Prosecutor v. Ahmad Al Faqi Al Mahdi, Case No. ICC-01/12-01/15, Reparations Order (Aug. 17, 2017), available at https://www.icc-cpi.int/CourtRecords/CR2017_05117.PDF [hereinafter Reparations Order].

3 Mandat d'arrêt à l'econtre d'Ahmad Al Faqi Al Mahdi, Case No. ICC-01/12-01/15-Red (public redacted version Sept. 28, 2015), available at https://www.icc-cpi.int/CourtRecords/CR2015_18211.PDF.

4 Declaration on the Intentional Destruction of Cultural Heritage, adopted by the UNESCO General Conference at its 32nd session, Resolution 33/32 (2003) Annex, available at http://unesdoc.unesco.org/images/0013/001331/133171e.pdf#page=68 [hereinafter Declaration on Intentional Destruction].

5 Convention Concerning the Protection of World Cultural and Natural Heritage, Nov. 16, 1972, entered into force Dec. 17, 1975, 1037 UNTS 151, available at https://treaties.un.org/doc/publication/unts/volume%201037/volume-1037-i-15511-english.pdf [hereinafter World Heritage Convention].

6 See International Military Tribunal (Nuremberg), Judgment (Oct. 1, 1946) Concerning Alfred Rosenberg, 41 AJIL 172, 286–88, 332 (1947); Prosecutor v. Miodrag Jokić, No. IT-01-42/1-S, ICTY, Trial Chamber I, Judgment (Mar. 18, 2004) [hereinafter Jokić Judgment]; Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, ICTY, Trial Chamber II, Judgment (Jan. 31, 2005).

7 Arts. 27 and 56 of Convention (IV) Respecting the Laws and Customs of War on Land and Annex: Regulations Concerning the Laws and Customs of War on Land, Oct. 18, 1907, entered into force Jan. 26, 1910, 187 CTS 227, available at https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/385ec082b509e76c41256739003e636d/1d1726425f6955aec125641e0038bfd6?OpenDocument [hereinafter the 1907 Hague Regulations].

8 14 AJIL 95, 115 (1920).

9 Art. 53 of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Jun. 8, 1977, entered into force Dec. 17, 1978, 1125 UNTS 3, available at https://treaties.un.org/doc/Publication/UNTS/Volume%201125/volume-1125-I-17512-English.pdf [hereinafter AP I]; Art. 16 of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, Jun. 8, 1977, entered into force Dec. 7, 1978, 1125 UNTS 609, available at https://treaties.un.org/doc/Publication/UNTS/Volume%201125/volume-1125-I-17513-English.pdf [hereinafter AP II].

10 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, entered into force Aug. 7, 1956, 249 UNTS 240, available at https://treaties.un.org/doc/Publication/UNTS/Volume%20249/volume-249-I-3511-English.pdf [hereinafter 1954 Hague Convention]; Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, Mar. 26, 1999, entered into force Mar. 9, 2004, 2253 UNTS 172, available at https://treaties.un.org/Pages/showDetails.aspx?objid=0800000280076dd2 [hereinafter Second Hague Protocol].

11 Judgment and Sentence, supra note 1, ¶ 20; Jokić Judgment, supra note 6, ¶¶ 23, 49.

12 Declaration on Intentional Destruction, supra note 4, ¶ VII.

13 Prosecutor v. Miodrag Jokić, Case No. IT-01-42, Second Amended Indictment (Aug. 23, 2003), Judgment, supra note 6, ¶ 116 (in which the Court considered his leadership an aggravating factor with mitigating facts being an admission of guilt, expression of remorse, voluntary surrender and conduct at the time of crimes and afterward). Confirmed on appeal, Judgment on Sentencing Appeal, No. IT-01-42/1-A, ICTY Appeals Chamber, (Aug. 30, 2005); Prosecutor v. Pavle Strugar, Case No. IT-01-42-PT, Third Amended Indictment (Dec. 10, 2003) (for war crimes including attacks against civilians, civilian objects, and protected objects). Judgment, supra note 6, at 198. This sentence was reduced on appeal to 7½ years, Case No. IT-01-42-A, ICTY Appeals Chamber, Appeals Judgment (Jul. 17, 2008), and pardoned by Decision of the President on the Application for Pardon or Commutation of Sentence, No. IT-01-42-ES (Jan. 16, 2009).

14 It received submissions on reparations from the Prosecutor, Registry, Defence, UNESCO, Trust Fund for Victims (TFV), Legal Representative for Victims (LRV) (representing 139 applicants), and reports from three Court-appointed experts. Mali chose not to make a submission.

15 Reparations Order, supra note 1, at 11.

16 Declaration on Intentional Destruction, supra note 4, ¶ IX.

17 LRV is appealing the Sentencing Order on the grounds that individual claims for consequential economic loss are so restricted and the determination of who qualifies for such claims be made by the TFV: LRV, Brief in Support of the Appeal (in part and limited), ICC-01/12-01/15-242-Conf (Oct. 17, 2017).