doctype: judgment

identifier: ICC-01/12-01/15 (Judgment and Sentence)

chamber: Trial Chamber VIII

decisionType: judgment

title: Judgment and Sentence

text: Hague Regulations, article 27

text: Hague Regulations, article 56

text: Geneva Conventions

text: Geneva Conventions, article 14

text: Geneva Conventions, article 18

text: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, article 19

text: Geneva Conventions, article 53

text: Geneva Conventions

text: Geneva Conventions, article 14

text: Geneva Conventions, article 18

text: Geneva Conventions, article 19

text: Geneva Conventions, article 53

text: Geneva Conventions

text: Geneva Conventions, article 14

text: Geneva Conventions, article 18

text: Geneva Conventions, article 19

text: Geneva Conventions, article 53

text: Geneva Conventions

text: Geneva Conventions, article 14

text: Geneva Conventions, article 18

text: Geneva Conventions, article 19

text: Convention (IV) relative to the Protection of Civilian Persons in Time of War, article 22

text: Geneva Conventions, article 53

text: Protocol I

text: Protocol II, article 16

text: Rome Statute

text: the Statute, article 23

text: the Statute, article 25

text: Rome Statute, article 3

text: Rome Statute, article 61

text: the Statute, article 64

text: the Statute, article 65

text: the Statute, article 75

text: the Statute, article 76

text: the Statute, article 77

text: the Statute, article 78

text: the Statute, article 8

text: the Statute, article 81

text: Original: English No.: ICC-01/12-01/15 Date: 27 September 2016

text: TRIAL CHAMBER VIII

text: Before: Judge Raul C. Pangalangan, Presiding Judge Judge Antoine Kesia-Mbe Mindua Judge Bertram Schmitt

text: SITUATION IN THE REPUBLIC OF MALI

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

text: Public

text: Judgment and Sentence

text: No. ICC-01/12-01/15 1/49 27 September 2016

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

text: Office of the Prosecutor Counsel for the Defence

text: Ms Fatou Bensouda Mr Mohamed Aouini Mr James Stewart Mr Jean-Louis Gilissen Mr Gilles Dutertre

text: Legal Representatives of Victims Legal Representatives of Applicants

text: Mr Mayombo Kassongo

text: Office of Public Counsel for Office of Public Counsel for the Defence Victims

text: Ms Paolina Massidda

text: States’ Representatives Amicus Curiae

text: REGISTRY

text: Registrar Counsel Support Section

text: Mr Herman von Hebel

text: Mr Nigel Verill Mr Patrick Craig

text: Victims Participation and Reparations Others Section

text: Ms Isabelle Guibal

text: No. ICC-01/12-01/15 2/49 27 September 2016

text: 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

text: Rome Statute

text: (‘Statute’) and Rules 139 and 145 of the Rules of Procedure and Evidence (‘Rules’).

text: I. Introduction

text: A. Procedural history

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

text: 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

text: Article 8

text: (2)(e)(iv) of

text: the Statute

text: On 18 February 2016, the parties reached a plea agreement in relation to the charge (‘Agreement’). 4. On 24 March 2016, the Pre-Trial Chamber confirmed the charge alleged by the 5 6 Prosecution. Trial Chamber VIII was constituted accordingly on 2 May 2016.

text: 1 Mandat d’arrêt à l’encontre d’Ahmad AL FAQI AL MAHDI,

text: -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. 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).

text: No. ICC-01/12-01/15 4/49 27 September 2016

text: On 24 May 2016, this Chamber held its first status conference. At this status

text: conference, it was decided, with the agreement of the parties, that: (i) in the

text: event of a conviction, the judgment and sentence in this case would be

text: rendered simultaneously; and (ii) the materials on the confirmation phase lists

text: of evidence were considered as presented by the Prosecution and accepted by

text: the Accused for the purposes of an Article 65 determination. After receiving

text: supplementary lists of further materials presented by the Prosecution and

text: accepted by the Accused, the Chamber has before it 714 items to consider in its

text: determinations and two written witness statements of Defence witnesses to be

text: considered exclusively for sentencing.

text: On 8 June 2016, the Chamber appointed a Legal Representative of Victims

text: (‘LRV’) in the case. In total, eight victims participated in the trial

text: proceedings.

text: Public redacted version of the ‘Decision on the confirmation of charges against Ahmad Al Faqi Al Mahdi’,

text: -Red (with separate opinion). 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. Transcript of Hearing, ICC-01/12-01/15-T-3-CONF-ENG. 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. 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). 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). 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.

text: No. ICC-01/12-01/15 5/49 27 September 2016

text: The trial was held between 22 and 24 August 2016. Mr Al Mahdi made an

text: admission of guilt. All oral submissions relating to the judgment and

text: sentencing were received, and the Prosecution presented the testimony of

text: three witnesses.

text: Excluding the present decision, this Chamber rendered 18 written decisions,

text: 12 oral decisions and 37 e-mail decisions in the course of the trial proceedings.

text: B. The Accused and the charge

text: Mr Ahmad Al Faqi Al Mahdi, also known as Abu Turab, was born in Agoune

text: in the region of Timbuktu, Mali. He is between 30 and 40 years old and

text: belongs to a family recognised in his community for having a particularly high

text: 15 16

text: knowledge of Islam. Having received Koranic education since his childhood,

text: Mr Al Mahdi has a thorough knowledge of the Koran and gave lectures as an

text: expert on religious matters. He joined the armed group known as Ansar Dine

text: in April 2012.

text: Mr Al Mahdi is charged with intentionally directing attacks against

text: 10 buildings of a religious and historical character in Timbuktu, Mali, between

text: 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). 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’). First Agreed Facts, ICC-01/12-01/15-54-Conf-AnxA, p. 3 (fact 10). Defence witness statement, MLI-DEF-0001-0001, 0002. Statement by Al Mahdi, MLI-OTP-0033-4511, 4516-18. First Agreed Facts, ICC-01/12-01/15-54-Conf-AnxA, p. 3 (fact 11). Statement by Al Mahdi, MLI-OTP-0033-4511, 4523-25; Defence witness statement, MLI-DEF-0002-0001, 0001-02. First Agreed Facts, ICC-01/12-01/15-54-Conf-AnxA, pp. 2 and 3 (facts 3-13).

text: No. ICC-01/12-01/15 6/49 27 September 2016 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.

text: II. Judgment

text: A. Applicable law

text: Crime charged

text: The only confirmed charge in this case is the war crime of attacking protected objects under

text: Article 8

text: (2)(e)(iv) of

text: the Statute

text: , 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

text: No. ICC-01/12-01/15 7/49 27 September 2016

text: 8(2)(e)(xii) would have been a more appropriate charge and the Chamber sees

text: no reason to consider any legal recharacterisation, noting in particular that the

text: specific intent of the defendant to attack protected objects meets squarely the

text: mens rea requirement of Article 8(2)(e)(iv).

text: In order to prove the crime charged, it must be proven that:

text: The perpetrator directed an attack. 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. 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. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

text: Considering that this is the first case in which the Court is applying

text: Article 8(2)(e)(iv), the Chamber will proceed to interpret this crime and its

text: elements.

text: The special protection of cultural property in international law can be traced

text: back to

text: Articles 27

text: and

text: of the 1907

text: Hague Regulations

text: and to the 1919

text: Commission on Responsibility, which identified ‘wanton destruction of

text: See, generally, Regulation 55 of the Regulations (‘Authority of the Chamber to modify the legal characterisation of facts’). Elements of Crimes, Article 8(2)(e)(iv). Convention (IV) respecting the Laws and Customs of War on Land and its annex:

text: Regulations concerning the Laws and Customs of War on Land

text: , The Hague, 18 October 1907,

text: Articles 27

text: and

text: (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 where 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.

text: No. ICC-01/12-01/15 8/49 27 September 2016 religious, charitable, educational, and historic buildings and monuments’ as a

text: war crime. The Geneva Conventions also recognised the need for special

text: protection of objects – like hospitals – which are already protected as civilian

text: objects. Subsequent international instruments reflect the enhanced protection

text: of cultural property, including Additional Protocols I and II to the Geneva

text: 25 26

text: Conventions and the Second Protocol to the Hague Convention of 1954.

text: The Chamber considers that the element of ‘direct[ing] an attack’ encompasses

text: any acts of violence against protected objects and will not make a distinction as

text: to whether it was carried out in the conduct of hostilities or after the object had

text: fallen under the control of an armed group.

text: The Statute

text: makes no such

text: distinction. This reflects the special status of religious, cultural, historical and

text: similar objects, and the Chamber should not change this status by making

text: distinctions not found in the language of

text: the Statute

text: . Indeed, international

text: humanitarian law protects cultural objects as such from crimes committed both

text: in battle and out of it.

text: Moreover, existing case-law from other cases pertaining to attacks against

text: civilian populations does not offer guidance.

text: The Statute

text: protects persons and

text: 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.

text: Convention (I) for the amelioration of the condition of the wounded and sick in armed forces in the field

text: , 12 August 1949,

text: Articles 19

text: -23; Convention (II) for the amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea, 12 August 1949,

text: Articles 22

text: , 23, 34-35;

text: Convention (IV) Relative to the Protection of Civilian Persons in Time of War

text: , 12 August 1949, Articles 14, 18 and 19. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (

text: Protocol I

text: ), 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 (

text: Protocol II

text: ), 8 June 1977,

text: Article 16

text: . 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. 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 para. 14 of the present Judgment. See, generally, Pre-Trial Chamber II, The Prosecutor v. Bosco Ntaganda, Decision Pursuant to

text: Article 61

text: (7)(a) and (b) of the

text: Rome Statute

text: on the Charges of the Prosecutor Against Bosco Ntaganda, 9 June 2014,

text: , para. 45; Pre-Trial Chamber I, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the confirmation of charges, 30 September 2008,

text: (notified on 1 October 2008), para. 267.

text: No. ICC-01/12-01/15 9/49 27 September 2016 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

text: the Statute

text: , its applicable law does not govern ‘attacks’ against cultural objects but rather punishes their ‘destruction or wilful damage’. 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. 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.

text: 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 29 Compare also

text: Article 8

text: (2)(e)(iv) of the

text: Rome Statute

text: with

text: Article 3

text: (d) of the ICTY Statute (criminalising ‘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.

text: No. ICC-01/12-01/15 10/49 27 September 2016 any particular hostilities but only an association with the non-international armed conflict more generally.

text: Modes of liability

text: In order to prove that someone co-perpetrated a crime by committing it jointly with others under

text: Article 25

text: (3)(a) of

text: the Statute

text: , it must be proven that: 1. The person makes an essential contribution with the resulting power to frustrate the commission of the crime. 2. The person’s contribution is made within the framework of an agreement with others which led to the commission of the crime. 3. The person satisfies the subjective elements of the crime. 20. For the reasons set out later in this Judgment, 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.

text: Article 65

text: of

text: the Statute

text: 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’. This provision soon met with controversy. It was noted in the 1995 Ad Hoc

text: 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,

text: -Red, A5, paras. 469 and 473 (‘Lubanga AJ’). 33 Lubanga AJ,

text: -Red, paras. 445 and 446. 34 See Lubanga AJ,

text: -Red, paras. 447-451; Lubanga TJ,

text: , 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.

text: No. ICC-01/12-01/15 11/49 27 September 2016

text: Committee report that a view had been expressed by some delegations that

text: ‘the effect of a guilty plea would need to be spelled out in view of the

text: differences between civil-law and common-law systems’ and the remark was

text: made that, ‘in view of the gravity of the crimes within the jurisdiction of the

text: court, it would be inappropriate to permit plea bargaining’. It was also noted

text: on this issue in the 1996 Preparatory Committee report that ‘[a]ttention was

text: drawn to the need to bridge the gap between different legal systems […] with

text: emphasis being placed on finding the common denominators in different legal

text: systems’.

text: Civil and common law systems diverge, traditionally speaking, on the role

text: played by admissions of guilt. This reflects deeper traditional differences in

text: understanding on the nature of criminal procedure:

text: 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.

text: The first language of what ultimately became

text: Article 65

text: (1)-(4) of

text: the Statute

text: comes from an Argentine working paper distributed in 1996. This proposal

text: intended to serve as an intermediate solution that blended traditional common

text: and civil law concepts. A joint Argentine-Canadian follow-up proposal first

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

text: Rome Statute of the International Criminal Court

text: – A Commentary, rd 2016 (C.H. Beck – Hart – Nomos, 3 edition, Triffterer and Ambos, eds) (‘Triffterer Commentary’), p. 1623. 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. A/AC.249/L.6, p. 8.

text: No. ICC-01/12-01/15 12/49 27 September 2016 introduced the language of an ‘admission of guilt’, avoiding the familiar

text: terminology used in either the civil or common law traditions.

text: The biggest change in the provision following these 1996 proposals is the

text: introduction of what was to become

text: Article 65

text: (5) of

text: the Statute

text: . This was

text: adopted to ease the concerns of those delegations which wanted to ensure that

text: the admission of guilt procedures did not open the way to the introduction of

text: plea bargaining. This is a different issue to that of ‘guilty pleas’ generally, as it

text: is possible to have an admission of guilt in the absence of any agreement

text: between the parties. Article 65(5) explicitly makes such inter-partes discussions

text: non-binding on the Trial Chamber, a notion acceptable to plea bargaining

text: advocates and sceptics alike.

text: Few substantive changes were made to this draft from the 1997 Preparatory

text: Committee onwards, and Article 65 was adopted together with the remainder

text: of

text: the Statute

text: on 17 July 1998.

text: 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

text: Rome Statute

text: : 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. 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’. Triffterer Commentary, page 1633; Lee Commentary, p. 242; William A. Schabas, The International Criminal Court: A Commentary on the

text: Rome Statute

text: , 2010 (Oxford University Press) (‘Schabas Commentary’), p. 780. Black’s Law Dictionary confirms that a plea is not necessarily always linked with a plea bargain: ‘[…] [a] th guilty plea is usu[ally] part of a plea bargain’. ‘Plea’, in Black’s Law Dictionary (10 ed., 2014). See Schabas Commentary, pp. 776-77; Procedure before the Trial Chamber, in The

text: – 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’).

text: No. ICC-01/12-01/15 13/49 27 September 2016

text: The solution reflected in the final

text: Article 65

text: of

text: the Statute

text: follows a ‘third avenue’ between the traditional common law and civil law approaches. Pursuant to

text: Articles 64

text: (8)(a) and 65 of

text: the Statute

text: , 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’.

text: Article 65

text: (5) of

text: the Statute

text: 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’. 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.

text: 47 Triffterer Commentary, p. 1625. 48

text: Article 65

text: (1)(c) and (2) of

text: the Statute

text: No. ICC-01/12-01/15 14/49 27 September 2016

text: B. Established facts of the case

text: 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

text: Article 65

text: (1)(c) of

text: the Statute

text: . 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; (ii) the supplementary material presented by the Prosecution and accepted by the Accused; and (iii) the testimony of the witnesses who appeared before this Chamber. Although there is no corroboration requirement when assessing evidence, the Chamber paid particular attention to whether evidence could establish the facts independently of the Accused’s admissions.

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

text: (i) Understands the nature of the charge against him, and the consequences of an admission of guilt; (ii) Makes an admission of guilt voluntarily, after sufficient consultation with Defence counsel;

text: 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.

text: No. ICC-01/12-01/15 15/49 27 September 2016

text: (iii) Waives his rights to: (a) plead not guilty and require the Prosecution to

text: prove the charges beyond reasonable doubt at a full trial; (b) not confess

text: guilt and to remain silent; (c) raise defences and grounds for excluding

text: criminal responsibility, and to present admissible evidence at a full trial;

text: (d) examine the witnesses against him and to obtain the examination of

text: witnesses on his behalf at a full trial; and (e) appeal a conviction or

text: sentence, provided the sentence is not in excess of the recommended

text: sentencing range; and

text: (iv) Accepts his individual criminal responsibility for the charge, including

text: all modes of liability alleged; it is noted that the Agreement does not

text: envisage the modification of the charge.

text: Context

text: In January 2012, armed violence took place in the territory of Mali and led to

text: different armed groups taking control of the north of the country. Around

text: early April 2012, following the retreat of Malian armed forces, the groups

text: Ansar Dine and Al-Qaeda in the Islamic Maghreb (‘AQIM’) took control of

text: Timbuktu. From then until January 2013 Ansar Dine and AQIM imposed their

text: 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. 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. 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. 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.

text: No. ICC-01/12-01/15 16/49 27 September 2016 religious and political edicts on the territory of Timbuktu and its people.

text: They did so through a local government, which included an Islamic tribunal,

text: an Islamic police force, a media commission and a morality brigade.

text: This morality brigade was called the Hesbah.

text: After living briefly in Algeria, Mr Al Mahdi returned to Mali around the

text: beginning of April to provide support to these armed movements.

text: Mr Al Mahdi was in direct contact with the leaders of Ansar Dine and AQIM,

text: including Iyad Ag Ghaly (the leader of Ansar Dine), Abou Zeid (the ‘Governor’

text: of Timbuktu under the armed groups), Yahia Abou Al Hammam (an AQIM

text: chief) and Abdallah Al Chinguetti (a religious scholar within AQIM).

text: Mr Al Mahdi was viewed as an expert on matters of religion, and was

text: consulted in this capacity, including by the Islamic tribunal. Mr Al Mahdi was

text: very active in aspects of the Ansar Dine and AQIM administration.

text: Abou Zeid asked Mr Al Mahdi to lead the Hesbah, and he did so from its

text: creation in April 2012 until September 2012. He wrote a document on the role

text: of the Hesbah and its objectives, which was then distributed to the other

text: 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. 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). 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. Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, paras. 2 and 6. 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. 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. Agreement, ICC-01/12-01/15-78-Anx1-tENG-Red, para. 14; Statement by P-65, MLI-OTP-0020-0019-R01, 0051, para. 154. 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;

text: No. ICC-01/12-01/15 17/49 27 September 2016 government structures put in place. The Hesbah was entrusted with regulating

text: the morality of the people of Timbuktu, and of preventing, suppressing and

text: repressing anything perceived by the occupiers to constitute a visible vice.

text: Decision to attack the mausoleums and mosques

text: The mausoleums of saints and mosques of Timbuktu are an integral part of the

text: religious life of its inhabitants. Timbuktu’s mausoleums and mosques

text: constitute a common heritage for the community. These mausoleums are

text: frequently visited by the residents – they are places of prayer and, for some,

text: places of pilgrimage.

text: When Abou Zeid and his collaborators were informed of the practices of the

text: Timbuktu population related to these mausoleums, Mr Al Mahdi was asked to

text: monitor the cemeteries visited by the residents. The objective was to raise

text: awareness among the population to stop such practices and, as the case may

text: be, to prohibit them from pursuing them. Mr Al Mahdi did this monitoring

text: for around one month, taking notes on the inhabitants’ behaviour at the

text: 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. 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. 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. 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). 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.

text: No. ICC-01/12-01/15 18/49 27 September 2016 mausoleums, meeting with local religious leaders and explaining on the radio what could and could not be done at the mausoleums.

text: In late June 2012, Ag Ghaly made the decision to destroy the mausoleums, in consultation with Al Chinguetti and Al Hammam. 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. 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. 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. 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. He personally determined the sequence in which the buildings/monuments were to be attacked.

text: 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.

text: No. ICC-01/12-01/15 19/49 27 September 2016

text: The attack and Mr Al Mahdi’s responsibility

text: The attack itself was carried out between around 30 June 2012 and 11 July 2012. 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: (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. (ii) The Sheikh Mohamed Mahmoud Al Arawani Mausoleum, on 30 June 2012; it was also destroyed. (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

text: 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.

text: No. ICC-01/12-01/15 20/49 27 September 2016 tomb is higher than the others, it must be levelled […] we are going to

text: rid the landscape of anything that is out of place’.

text: (iv) The Alpha Moya Mausoleum, located in the Alpha Moya Cemetery

text: and visited in order to pray and make offerings, on 30 June 2012.

text: Mr Al Mahdi directly participated and Abou Zeid also visited the site

text: around the time of the attack. As previously, there was a security

text: cordon of 30 combatants protecting those who engaged in the

text: destruction.

text: (v) The Sheikh Mouhamad El Mikki Mausoleum, a place of spiritual

text: retreat and reflection, located in the Three Saints Cemetery, on the

text: following day, 1 July 2012. The mausoleum was completely

text: destroyed.

text: (vi) The Sheikh Abdoul Kassim Attouaty Mausoleum, located in the Three

text: Saints Cemetery and built in the sixteenth century, on 1 July 2012.

text: 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. 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. 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. 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-

text: No. ICC-01/12-01/15 21/49 27 September 2016

text: (vii) The Sheikh Sidi Ahmed Ben Amar Arragadi Mausoleum, located in the

text: Three Saints Cemetery, on 1 July 2012. Mr Al Mahdi physically

text: participated in the attack, which completely destroyed the

text: mausoleum.

text: (viii) The door of the Sidi Yahia Mosque, on 2 July 2012. Legend had it that

text: this door had not been opened for 500 years and that opening it would

text: lead to the Last Judgment. Al Chinguetti told Al Mahdi that the door

text: had to be opened, and both went to the site with pickaxes that

text: Mr Al Mahdi bought with Hesbah funds. Mr Al Mahdi explained the

text: destruction to journalists while it was taking place:

text: 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.

text: (ix) and (x) The two mausoleums adjoining the Djingareyber Mosque

text: (especially visited on Mondays and Fridays and for important religious

text: celebrations), on or around 10-11 July 2012. Al Chinguetti asked

text: 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. 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. 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).

text: No. ICC-01/12-01/15 22/49 27 September 2016

text: Mr Al Mahdi to destroy the mausoleums, who agreed and oversaw the

text: attack. Mr Al Mahdi physically took part in the destruction, and

text: decided at one point that a bulldozer should be used. When the

text: attackers were clearing the rubble towards the end of the acts of

text: destruction, Abou Zeid and Al Chinguetti, among others, came to

text: provide and demonstrate their support at the site. The mausoleums

text: destroyed were the Ahmed Fulane Mausoleum and the Bahaber

text: Babadié Mausoleum.

text: All these sites were dedicated to religion and historic monuments, and were

text: not military objectives. With the exception of the Sheikh Mohamed Mahmoud

text: Al Arawani Mausoleum, all these buildings had the status of protected

text: UNESCO World Heritage sites.

text: Mr Al Mahdi knew that he exercised joint control over the attack and was fully

text: implicated in its execution. He contributed to the attack in the following ways:

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

text: No. ICC-01/12-01/15 23/49 27 September 2016

text: (i) he supervised the execution of the operations, using his men from the

text: Hesbah and overseeing the other attackers who came to participate in the

text: operations;

text: (ii) he collected, bought and distributed the necessary tools/means in order

text: to successfully carry out the attack;

text: (iii) he was present at all of the attack sites, giving instructions and moral

text: support;

text: (iv) he personally participated in the attack that led to the destruction of at

text: least five sites: (a) the Alpha Moya Mausoleum; (b) the Sheikh Sidi

text: Ahmed Ben Amar Arragadi Mausoleum; (c) the door of the Sidi Yahia

text: 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). 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). 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. 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. 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.

text: No. ICC-01/12-01/15 24/49 27 September 2016

text: Mosque; (d) the Ahmed Fulane Mausoleum; and (e) the Bahaber

text: Babadié Mausoleum; and

text: (v) he was responsible – having been designated by Al Chinguetti – for

text: communicating with journalists to explain and justify the attack.

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

text: the following:

text: 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.

text: C. Findings

text: On the basis of the Accused’s statements in open court and the Agreement, the

text: Chamber is satisfied that the Accused understands the nature and

text: consequences of the admission of guilt and that the admission was voluntarily

text: made after sufficient consultation with Defence counsel. With reference to the

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

text: No. ICC-01/12-01/15 25/49 27 September 2016

text: ‘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.

text: Findings on

text: Article 8

text: (2)(e)(iv) of

text: the Statute

text: 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

text: No. ICC-01/12-01/15 26/49 27 September 2016 fulfil in a spirit of mutual assistance and concern’. 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’ 101 include worshipping cows and trees? 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.

text: 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.

text: 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 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).

text: No. ICC-01/12-01/15 27/49 27 September 2016 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. 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

text: Article 25

text: (3)(a) of

text: the Statute

text: (co-perpetration) and other

text: modes of liability

text: i. Article 25(3)(a) co-perpetration

text: 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 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.

text: No. ICC-01/12-01/15 28/49 27 September 2016

text: Ansar Dine and AQIM upon occupying Timbuktu. 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.

text: 103 See para. 31 of the present Judgment.

text: No. ICC-01/12-01/15 29/49 27 September 2016 ii. Other modes of liability

text: 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.

text: The Appeals Chamber has noted that

text: the Statute

text: differentiates between principal (

text: Article 25

text: (3)(a)) and accessorial (Article 25(3)(b) to (d)) liability, with principals bearing more blameworthiness ‘generally speaking and all other things being equal’. 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

text: Article 8

text: (2)(e)(iv) of

text: the Statute

text: 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’. Neither the Defence nor the LRV take a position on this point.

text: There is no indication in either

text: the Statute

text: or Appeals Chamber jurisprudence of any hierarchy within the variations set out under Article 25(3)(a) of the 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,

text: -Red, para. 462. 105 The Prosecution’s submissions in support of conviction under

text: Article 65

text: (2) of

text: the Statute

text: , ICC-01/12-01/15- 120-Conf, para. 31.

text: No. ICC-01/12-01/15 30/49 27 September 2016

text: 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

text: Article 25

text: (3)(a) of

text: the Statute

text: 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.

text: D. Conclusion

text: 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

text: Articles 8

text: (2)(e)(iv), 25(3)(a) and 65(2) of

text: the Statute

text: , 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

text: No. ICC-01/12-01/15 31/49 27 September 2016

text: 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.

text: III. Sentence

text: 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.

text: A. Applicable law

text: For the purposes of determining the appropriate sentence, the Chamber has taken into account, inter alia,

text: Articles 23

text: , 76, 77, and 78 of

text: the Statute

text: and Rule 145 of the Rules. 66. The Chamber notes that

text: Articles 77

text: and

text: of

text: the Statute

text: do not specify the purpose of criminal punishment. However, in the Preamble of

text: the Statute

text: it is declared that ‘the most serious crimes of concern to the international community as a whole must not go unpunished’. 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’. Accordingly, the Chamber considers that the

text: 106 Preamble of

text: the Statute

text: , para. 4. 107 Preamble of

text: the Statute

text: , para. 5.

text: No. ICC-01/12-01/15 32/49 27 September 2016

text: Preamble establishes retribution and deterrence as the primary objectives of punishment at the ICC.

text: 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. As reflected in

text: Article 81

text: (2)(a) of

text: the Statute

text: 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.

text: The Appeals Chamber has found that the relevant provisions of

text: the Statute

text: 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

text: 108 See also, Trial Chamber II, The Prosecutor v. Germain Katanga, Decision on Sentence pursuant to

text: article 76

text: of

text: the Statute

text: , 23 May 2014,

text: -tENG-Corr, paras. 37-38 (‘Katanga Sentencing Decision’); Trial Chamber III, The Prosecutor v. Jean-Pierre Bemba Gombo, Decision on Sentence pursuant to

text: Article 76

text: of

text: the Statute

text: , 21 June 2016,

text: , para. 10 (‘Bemba Sentencing Decision’). 109 Katanga Sentencing Decision,

text: -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

text: Article 76

text: of

text: the Statute

text: ”, 1 December 2014,

text: , para. 40 (‘Lubanga AJ Sentencing Decision’); See also Bemba Sentencing Decision,

text: , para. 11.

text: No. ICC-01/12-01/15 33/49 27 September 2016

text: Article 78(1) and Rule 145(1)(c) and (2). It must then balance all these factors in accordance with Rule 145(1)(b) and pronounce a sentence for each crime. The Chamber has considerable discretion in imposing a proportionate sentence. 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.

text: 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. 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. In addition, Trial Chamber III considered some of them to be relevant to the assessment of the existence of aggravating and mitigating circumstances. 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). 70. In considering all relevant factors, the Chamber cannot ‘double-count’ any factors assessed in relation to the gravity of the crime as aggravating

text: 111 Lubanga AJ Sentencing Decision,

text: , para. 32. 112 Lubanga AJ Sentencing Decision,

text: , para. 33. 113 Lubanga AJ Sentencing Decision,

text: , para. 34. 114 Lubanga AJ Sentencing Decision,

text: , para. 35. 115 Lubanga AJ Sentencing Decision,

text: , paras. 61-66. 116 Trial Chamber I, The Prosecutor v. Thomas Lubanga Dyilo, Decision on Sentence Pursuant to

text: Article 76

text: of

text: the Statute

text: , 10 July 2012,

text: , para. 44 (‘Lubanga Sentencing Decision’); Katanga Sentencing Decision,

text: -tENG, paras. 44-69. 117 Bemba Sentencing Decision,

text: , 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.

text: No. ICC-01/12-01/15 34/49 27 September 2016 circumstances and vice versa. Further, a legal element of the crimes or mode of liability cannot be considered as an aggravating circumstance.

text: Gravity of the crime

text: 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.

text: Aggravating and mitigating circumstances

text: 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.

text: 119 Bemba Sentencing Decision,

text: , para. 14 and footnotes, in particular: Katanga Sentencing Decision,

text: -tENG; Lubanga Sentencing Decision,

text: , para. 35. 120 Katanga Sentencing Decision,

text: -tENG, paras. 42 and 43. 121 Bemba Sentencing Decision,

text: , para. 18 and footnotes, in particular: Katanga Sentencing Decision,

text: -tENG, para. 34; Lubanga Sentencing Decision, ICC-01/04-01/06- 2901, para. 33.

text: No. ICC-01/12-01/15 35/49 27 September 2016

text: 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.

text: B. Analysis

text: 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.

text: Gravity of the crime

text: 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

text: 122 Bemba Sentencing Decision,

text: , para. 19 and footnotes, in particular: Katanga Sentencing Decision,

text: -tENG, paras. 32 and 34; Lubanga Sentencing Decision,

text: , para. 34.

text: No. ICC-01/12-01/15 36/49 27 September 2016 against property. In the view of the Chamber, even if inherently grave, crimes against property are generally of lesser gravity than crimes against persons.

text: With regard to the extent of the damage caused, the Chamber recalls that most of the 10 sites were completely destroyed. Moreover, the attack was carefully 125 126 planned and lasted approximately 10 days. Additionally, the impact of the attack on the population was heightened by the fact that it was relayed in the media. 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. 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. 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. The mausoleums were among the most cherished buildings of the city and they were visited by

text: 123 Katanga Sentencing Decision,

text: -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.

text: No. ICC-01/12-01/15 37/49 27 September 2016 the inhabitants of the city, who used them as a place for prayer while some used them as pilgrimage locations.

text: 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.

text: 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. 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. 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.

text: Lastly, the Chamber notes that the crime was committed for religious motives. Indeed, during the period they ruled over the territory of Timbuktu, Ansar Dine and AQIM took measures to impose their religious edicts on the 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.

text: No. ICC-01/12-01/15 38/49 27 September 2016 population. The creation of the Hesbah, which was headed by Mr Al Mahdi, was meant precisely to eradicate any visible vice it identified in Timbuktu. 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. 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.

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

text: Mr Al Mahdi’s culpable conduct

text: 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.

text: 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, 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

text: 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.

text: No. ICC-01/12-01/15 39/49 27 September 2016 tools, provided logistical and moral support to the direct perpetrators and supervised them, and was present at every site.

text: 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. 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.

text: i. Absence of aggravating circumstances

text: 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. Indeed, in line with the Appeals Chamber’s jurisprudence, 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, 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 argument 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

text: 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,

text: , para. 82. 145 See para. 89 of the present Judgment. 146 Prosecution Sentencing Observations, ICC-01/12-01/15-139-Red, para. 61.

text: No. ICC-01/12-01/15 40/49 27 September 2016

text: Mr Al Mahdi in its assessment of the gravity of the crime and cannot therefore consider it as an aggravating circumstance.

text: Similarly, the Chamber has already considered the religious nature of the attack as part of its assessment of the gravity of the crime. Accordingly it cannot be considered as an aggravating circumstance. ii. Mitigating circumstances: reluctance to commit the crime and

text: means of execution

text: 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. 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, 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, 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.

text: 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.

text: No. ICC-01/12-01/15 41/49 27 September 2016

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

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

text: 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.

text: Mr Al Mahdi’s individual circumstances

text: 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.

text: i. Age, education and background, social and economic condition and

text: conduct in detention of Mr Al Mahdi

text: 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 man and that he

text: 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.

text: No. ICC-01/12-01/15 42/49 27 September 2016 assisted many of the poor communities of Timbuktu, including the community of the black Tuaregs, to which he did not belong.

text: 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, 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. 97. Despite serious security concerns for his family, whom he has not seen since his transfer to the Court, 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. 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 arguments 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.

text: 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.

text: No. ICC-01/12-01/15 43/49 27 September 2016 ii. Admission of guilt

text: 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. Subsequently, the parties reached an agreement sufficiently early in the proceedings, namely before the confirmation of charges, to help substantially speed up the proceedings.

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

text: The Chamber considers that an admission of guilt is undoubtedly a mitigating circumstance 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. 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

text: 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.

text: No. ICC-01/12-01/15 44/49 27 September 2016 made against a backdrop of overwhelming evidence pointing to Mr Al Mahdi’s guilt.

text: iii. Cooperation

text: 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. 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. During his interviews with the Prosecution, Mr Al Mahdi did not show any reluctance in touching upon his own acts.

text: 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.

text: iv. Expression of remorse and empathy for victims

text: The Chamber notes that, as early as the first day of trial, Mr Al Mahdi has expressed genuine remorse for his acts. The Chamber notes that Mr Al Mahdi has expressed his ‘deep regret and great pain’. 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 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.

text: No. ICC-01/12-01/15 45/49 27 September 2016

text: 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’. Mr Al Mahdi also indicated that he was willing to ‘accept the judgment of the Chamber’. 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.

text: In addition to expressing remorse, and contrary to the submission of the LRV, 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. 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.

text: C. Determination of the sentence

text: The Prosecution submits that Mr Al Mahdi’s sentence should be between nine and eleven years. 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

text: 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.

text: No. ICC-01/12-01/15 46/49 27 September 2016 case. The LRV requests that the sentence handed down to Mr Al Mahdi be

text: severe and exemplary.

text: The Chamber stresses that sentencing an individual for crimes he committed is

text: a unique exercise for which comparison with different cases can be of very

text: limited relevance only, if any. The Chamber considers the Defence’s

text: arguments about the sentences in other cases to be irrelevant. These sentences

text: were based on vastly different circumstances, including the applicable modes

text: of liability and sources of law.

text: As set out above, the Chamber must balance all the relevant factors, including

text: any mitigating and aggravating circumstances, and consider the circumstances

text: of both the convicted person and the crime. In order to sufficiently and

text: adequately reflect the moral and economic harm suffered by the victims of

text: the present case and fulfil the objectives of sentencing, the Chamber must

text: impose a sentence that is proportionate to the gravity of the crime and the

text: individual circumstances and culpability of Mr Al Mahdi.

text: The Chamber finds that the crime for which Mr Al Mahdi is being convicted is

text: of significant gravity. This said, the Chamber has found no aggravating

text: circumstances and five mitigating circumstances, namely: (i) Mr Al Mahdi’s

text: 186 187 admission of guilt; (ii) his cooperation with the Prosecution;

text: 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,

text: , 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 Chambers 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,

text: , para. 91. 186 See paras. 98-100 of the present Judgment. 187 See paras. 101-102 of the present Judgment.

text: No. ICC-01/12-01/15 47/49 27 September 2016

text: (iii) the remorse and the empathy he expressed for the victims; (iv) his initial reluctance to commit the crime and the steps he took to limit the damage caused; and (v), even if of limited importance, his good behaviour in detention despite his family situation. 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

text: Article 77

text: (2) of

text: the Statute

text: and Rules 146 and 147 of the Rules, the Chamber finds that imprisonment is a sufficient penalty. 111. Pursuant to

text: Article 78

text: (2) of

text: the Statute

text: , 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.

text: 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,

text: -Red (redacted version notified on 28 September 2015).

text: No. ICC-01/12-01/15 48/49 27 September 2016

text: FOR THE FOREGOING REASONS, THE CHAMBER HEREBY

text: CONVICTS Mr A1 Mahdi of the war crime of attacking protected objects as a co-perpetrator under

text: Articles 8

text: (2)(e)(iv) and 25(3)(a) of

text: the Statute

text: ; SENTENCES Mr A1 Mahdi to 9 years of imprisonment; ORDERS the deduction of the time Mr A1 Mahdi has spent in detention, pursuant to an order of this Court, from his sentence; and INFORMS the parties and participants that reparations to victims pursuant to

text: Article 75

text: of

text: the Statute

text: shall be addressed in due course.

text: Done in both English and French, the English version being authoritative.

text: Judge Raul C. Pangalangan, Presiding Judge

text: Judge Antoine Kesia-Mbe Mindua Judge Bertram Schmitt

text: Dated 27 September 2016 At The Hague, The Netherlands

text: N o. ICC-01/12-01/15 49/49 27 Septem ber 2016

title: The Prosecutor v. Ahmad Al Faqi Al Mahdi