Introduction
Over the years, important strands of critical legal scholarship have emerged that examine the structural and political framework within which the International Criminal Court (ICC / the Court) operates and how it is embedded in, and tends to reproduce, global colonial power relations. Scholars such as Kamari Clarke, Adam Branch and Barrie Sander, to name just a few, have repeatedly pointed to the selectivity of the Office of the Prosecutor’s (OTP) prosecution policy, demonstrating how its prioritization of the figure of the “African warlord” is rooted in deeply embedded (post)colonial prejudice, shifting geopolitical power relations and in the enduring influence of the nation-state.Footnote 1 Despite its universalist aspirations, legal historians have argued, international law is the product of specifically European political constellations and concerns.Footnote 2 According to the ICC’s critics, this is reflected, for example, in the prioritization of the agency of individual perpetrators, which tends to obscure the structural causes of violent conflict and their roots in global political and socio-economic inequalities.Footnote 3 The Rome Statute, the ICC’s founding treaty that establishes its substantive and procedural law, is argued to be the product of a political compromise that reproduces global power imbalances, exemplified by the fact that the permanent members of the UN Security Council have disproportionate influence over where the ICC can exercise its jurisdiction.Footnote 4
It is against the backdrop of such criticisms, and more generally the legitimacy crisis facing the ICC,Footnote 5 that the 2016 trial of Ahmad Al Faqi Al Mahdi takes on particular significance. Ahmad Al Faqi Al Mahdi, a Malian religious scholar, was sentenced to nine years in prison for his role in the deliberate destruction of Sufi religious shrines in Timbuktu in July 2012, while the Salafi jihadist rebel militia Ansar Dine controlled the city. The ICC judges found these acts to be war crimes under article (8)(2)(e)(iv) of the Rome Statute, convicting him of “intentionally directing attacks against buildings dedicated to religion … and historic monuments”. Al Mahdi had been recruited by Ansar Dine to head the newly formed Hisbah (Morality Brigade) and was responsible for coordinating the destruction of nine mausoleums of religious scholars revered as saints in local Sufi Islam, as well as the entrance door to the 15th-century Sidi Yahya Mosque. The case was remarkable on several counts: Al Mahdi was the first defendant ever to appear before the ICC on charges of destruction of cultural heritage, the first to enter a guilty plea, and notably, the first jihadist and Islamic legal scholar to be tried by the Court.Footnote 6
Prosecutor v Al Mahdi (Al Mahdi) presents a stark example of competing normative orders. While the destruction of Timbuktu’s shrines, designated as World Heritage by UNESCO, violated international criminal law’s prohibition against attacking religious buildings and historic monuments, it was nevertheless mandated by the Islamic legal system that Ansar Dine sought to implement. This confrontation between normative orders has led to calls for the ICC to engage more explicitly with Islamic law. The trial has been characterized as a “missed opportunity” to demonstrate the Court’s ability to converse meaningfully with Islamic legal traditions.Footnote 7 The ICC judges should not have stopped at establishing Al Mahdi’s criminal liability but should have illustrated “how the actions of Al Mahdi were in violation of both international criminal law and Islamic law, given the different interpretations of the Islamic law on this topic”.Footnote 8
These proposals for “opening up” international criminal law resonate with legal pluralism scholarship underscoring the possibility of peaceful coexistence between parallel legal orders.Footnote 9 However, it is open to debate whether such coexistence is feasible in contexts characterized by major power imbalances.Footnote 10 Research on legal pluralism in colonial settings has demonstrated that encounters between dominant and subordinate legal systems invariably involve selective recognition that transforms the very orders being recognized.Footnote 11 What Elizabeth Povinelli described as the “cunning of recognition” ensures that only certain aspects of alternative normative orders are acknowledged, which are fundamentally altered in the process to become compatible with the dominant legal framework.Footnote 12 This pattern produced what has been identified as the “invention of customary law” under colonial conditions – legal systems that retained indigenous names but were substantively transformed through colonial administrative processes.Footnote 13
There is ample historical and anthropological evidence that the Islamic normative order and its many local iterations have undergone similar transformations in their encounter with colonial and positive law legal systems.Footnote 14 Grounded in divine revelation (Quran and Sunna) but equally dependent on human interpretation and jurisprudence (fiqh), the Islamic legal tradition was an example of a “jurist law” that was not formally codifiedFootnote 15 and that largely existed independently of,Footnote 16 and at times in opposition to,Footnote 17 state power. Furthermore, the responsibility for interpreting divine sources was shared between qadis, judges who adjudicated cases in court, and muftis, who issued advisory opinions in both formal and informal settings.Footnote 18 Consequently, Islamic normativity relied on orality and textuality,Footnote 19 with flexibility, multivalency and a plurality of contrasting opinions emerging through contextual interpretation, scholarly debate and the dynamic interaction between different sources of authority.Footnote 20 From the 19th century onwards, however, these “living” normative orders were gradually reformulated into modern codified legal systems.Footnote 21 This reformulation and codification of Islamic normativity occurred against the backdrop of Europe’s rise to global dominance: it happened simultaneously in the context of various colonial encounters, but also in the legal reforms initiated by Ottoman and Egyptian political elites, for whom state-led codification was a tool for consolidating political control and a more effective exercise of governance.Footnote 22 Eventually, these efforts would result in the codification of various national laws and the publication of judicial precedents. Reviewing the various local trajectories of this process is beyond the scope of this article, but these codified forms of Islamic normativity had one thing in common: they fixed into rigid rules what had previously been flexible practices of interpretation and application.Footnote 23 This production of “positive law in the Muslim world” represented a fundamental transformation – or reification – of Islamic normativity, reducing complex jurisprudential traditions into state law modelled on European legal cognition.Footnote 24 This process exemplifies the “essentializing” dimension of colonial recognition, whereby living normative orders are frozen in a static form that is compatible with the dominant framework of positive law.Footnote 25
Inevitably, such reformulation and selective recognition also arise in the encounter between Islamic legal traditions and the Rome Statute framework. Article 21(1)(c) allows the Court to apply in subsidiary order “general principles of law derived … from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards”. The Islamic legal tradition is generally recognized as one of the three major “legal systems of the world”, alongside the civil law and common law systems.Footnote 26 However, the language of article 21 explicitly states that the derivation of general principles must be based on the national laws within their remit. Drafted as a compromise between supporters of direct reliance on national laws and opponents who feared it would create legal uncertainty,Footnote 27 it is interpreted by various commentators as calling for a comparison of the latter. According to Margaret deGuzman, for example, “[in] identifying general principles, … the judges of the ICC are required to engage in comparative law analysis, but have broad discretion to decide which national laws to include in that analysis”.Footnote 28 Here too, it is thus implied that the incorporation of aspects of the “Islamic legal system” into the ICC’s applicable law can only involve elements that have already been filtered through state codification processes,Footnote 29 which de facto excludes those forms of Islamic normativity that continue to be practiced in a pre- or partially codified form.Footnote 30 This detour via domestic state law is unavoidable, as directly integrating the practice of precodified Islamic normativity into the positive law framework of the Rome Statute would amount to the conflation of two fundamentally incompatible “language games”.Footnote 31
This article further explores the selective recognition and reification of Islamic normative orders by examining how the ICC engages with Islamic law in Al Mahdi. This is examined through a systematic analysis of trial discourse – that is, what lawyers, judges and witnesses actually say during court proceedings and how they say it. Rather than focusing solely on the final judgment or legal doctrine, we analyse the trial transcripts to understand how participants talk about Islamic law and the institutions established by Ansar Dine. This approach reveals how recognition and misrecognition work in practice: which aspects of Islamic normativity get acknowledged, which are ignored and how certain features are transformed through the very act of legal description.
Our analysis thus follows a distinctly praxeological interpretation of the “law-in-action” approach that examines law not just as formal rules but as it is actually practiced in courtroom interactions.Footnote 32 When prosecutors describe the Islamic Tribunal established by the jihadists, when defence lawyers invoke Islamic law as context for their client’s actions, or when witnesses testify about religious practices in Timbuktu, they are not simply reporting facts. Rather, they are constructing particular versions of Islamic normativity shaped by their legal objectives – to convict, to defend or to establish evidence. These accounts of how the jihadist occupiers created bureaucratic structures and implemented their interpretation of Islamic law cannot be understood apart from the speakers’ strategic goals within the constraints of the Rome Statute framework.Footnote 33
Our analysis reveals a paradox in the OTP’s presentation of the facts of the case. Despite the jihadists’ efforts to model the administrative structure of occupied Timbuktu on positive law – establishing an Islamic Tribunal, Islamic Police and Morality Brigade that operated with bureaucratic formalism – the OTP systematically refuses to recognize this structure as either a legal order or as an expression of Islamic normativity. This refusal is not incidental but necessary: recognizing the jihadists’ institutions as a functioning legal order would imply that the war had ended and stable governance had been established, thereby undermining the prosecution of the shrine destructions as war crimes.Footnote 34 The coercive apparatus is instead portrayed through what we identify as an “exhibition mode” that highlights picturesque bureaucratic features while denying engagement with legal content.
Yet paradoxically, the OTP must simultaneously engage with Islamic normativity to establish that the destroyed buildings qualify as religious sites under the Rome Statute. The shrines’ status as protected religious buildings depends on their use by the local Sufi population for religious practices. Thus, the OTP adopts an “ethnographic mode” to describe these Sufi practices – prayer at the shrines, religious gatherings, circumcision rituals – taking for granted their authentically Islamic character. This creates a selective recognition that validates Sufi Islamic practices while refusing to acknowledge the jihadists’ Islamic claims.
The structural constraints of prosecuting this case as a war crime thus force the ICC into contradictory positions. On one hand, the Court cannot acknowledge the jihadists’ legal order without undermining its own jurisdiction. On the other hand, it cannot avoid making determinations about Islamic practices when establishing the religious character of the destroyed sites. The Court finds itself deeply embedded in debates about Islamic normativity but must reshape these normative orders to fit the requirements of the Rome Statute.
Thus, our analysis reveals how the ICC is already knee-deep in Islamic normative debates in the process of adjudication.Footnote 35 As we will show, the Court is unable to apply the Rome Statute without making implicit judgements about legitimate and illegitimate forms of Islamic practice. This may make good sense in terms of the ICC’s expressivist ethos,Footnote 36 and apparently the Court did feel the need to “send a message” after the destruction of the Bamyan Buddhas and the archaeological sites of Nimrud, Hatra and Palmyra.Footnote 37 But as these patterns of selective recognition echo colonial legal practices, our findings raise fundamental questions about whether calls for greater engagement with Islamic law would mitigate or, on the contrary, reinforce these dynamics of misrecognition.
The article proceeds as follows. First, we examine the OTP’s account of the context of the crimes, focusing on how it describes the Islamic institutions established by Ansar Dine. Second, we analyse how selected aspects of this normative order are transformed into “legal facts” as constitutive elements of the crime. Third, we examine how Islamic law appears as a personal circumstance in mitigation arguments. Finally, we discuss how the war crime charge shapes these representations and draws the ICC into political conflicts about the nature of Islamic normativity.
The ambivalence of the OTP’s account of the context of the crime
In its account of the context in which the crimes charged were committed, the OTP explicitly acknowledges the existence of an alternative normative order established by the jihadists after they took control of Timbuktu. It is described as a “repressive and coercive system” (un système répressif et coercitif)Footnote 38 consisting of three separate branches that together formed a bureaucratic framework for enforcement. One branch was responsible for punishing violations (the Islamic Tribunal), another for tracking them (the Islamic Police), and yet another for prevention (the Morality Brigade or Hisbah).Footnote 39 However, apart from the fact that the tribunal and the police self-identify as “Islamic”, the OTP’s account lacks any reference to possible sources of law on which this enforcement would be based.Footnote 40 Instead, the newly established order is consistently presented as an attempt by the jihadists to “control the population” by “imposing their will” or “their ideology”. In the words of the lead prosecution counsel on the first trial day:
Excerpt 1
“From then on, Mr. Al Mahdi was operationally involved in the bodies set up by Ansar Dine and AQIM to administer the city and control the population by imposing their ideology.”Footnote 41
Or as is stated in the charges read at the beginning of the confirmation of charges hearing:
Excerpt 2
“During these approximately 10 months, the members of the Ansar Dine and AQIM imposed their will in Timbuktu through a local government, which included an Islamic tribunal, a morality brigade (Hisbah), and an Islamic police force.”Footnote 42
This ambiguity about whether the normative order established by the rebels deserves the qualification “legal” is indicative of a deep-rooted ambivalence that recurs throughout the OTP’s account of the shrine demolitions. It is most evident, however, in the shift to a “documentary” voice when the OTP presents its evidence about the modus operandi of the Islamic tribunal and Al Mahdi’s role as a locally recruited legal expert. The following excerpt is again from the confirmation of charges hearing:
Excerpt 3
“Their new law was propagated through sermons, propaganda messages broadcast on the radio, posters and judgments handed down by the Islamic Tribunal, one of the structures created by the armed groups. By way of example, allow me to show you one of these judgments handed down by the Islamic Tribunal, which is in Arabic. It concerns a sentence of flogging. As you can see on the screen, these judgments observed a certain formalism. They were dated, numbered, signed and stamped by the court. The prosecution disclosed to the defence several dozen official documents found on the premises of the Islamic police and the Islamic court, which observed a similar formalism. It was an organized and structured system of repression and coercion.”Footnote 43
First, the prosecution counsel mentions a “new law” that was introduced to the people of Timbuktu and a “court” that issues “judgments” and imposes “punishments”. However, she then switches to an “exhibition” mode, literally showing the output of the tribunal to the judges on the screen in front of them. In her explanation, she draws attention to the formal material characteristics of the text-artifact that betray its bureaucratic origins (its formalism, the presence of a file number, the fact that it is stamped and sealed), but she ignores the legal content of the document.
In the next excerpt, also from the confirmation hearing, a prosecution counsel explains that Al Mahdi was recruited because of his scholarly reputation and popularity among the people of Timbuktu, and mentions that he also conducted “legal research” for the tribunal that Ansar Dine had established.Footnote 44 To support these claims, the counsel shows a short video clip illustrating the sophistication of Al Mahdi’s legal reasoning. However, once again, the legal content of the clip is not addressed:
Excerpt 4
“Mr. Al Mahdi was also important to the armed groups because of his popularity. He was popular within his own community. This meant that he could get other members of his community to join the cause of the armed groups.
Your Honours, his religious knowledge and position are the reasons why Mr. Al Mahdi was directly involved in the oppressive activities of the armed groups. An example is that he assisted the judges of the Islamic tribunal and conducted legal research for them. I will show your Honours a video found on the internet. Your Honours will hear an interview of Mr. Al Mahdi. On the left corner of the screen your Honours will see the actual interview. In the centre of the screen your Honours will see the transcript in French. Your Honours, this interview gives us a sense of the depth of the knowledge of Mr. Al Mahdi. Your Honours will hear Mr. Al Mahdi talking of the different schools of Islamic law, of international jurisprudence and of the legal basis for the decisions of a tribunal. I will now show the video with sound.
(Viewing of the video excerpt)Footnote 45
‘Of course, the members of the judicial council follow the Malekite school of Islamic law, but we actually follow the Sunna and Islamic jurisprudence, in other words, comparative jurisprudence. We benefit from all the references and fatwas issued by doctrinal committees around the world and from the Kuwaiti Foundation for Jurisprudence. This allows us to benefit from the entire body of jurisprudence. This is evident when the issue is complex and requires special attention from the Judicial Council, which adopts one of the opinions issued by the Muslim school of law, which draws its inspiration from the Book of Allah and the Sunna of His Messenger’.”Footnote 46
As in excerpt 3, the prosecution counsel switches to “exhibition” mode here, using the interview footage exclusively to support his assessment of Al Mahdi’s expertise and scholarship. In both instances, attention is diverted from the discursive content of what is displayed on the screen, and the OTP refrains from any normative-doctrinal assessment of the coercive apparatus established by the jihadists. The OTP could have done so by stating, for example, that the Islamic Tribunal did not have the required material, temporal and territorial jurisdiction, which would imply a minimal form of recognition as an illegitimate but nevertheless recognizably “legal” order. Instead, the OTP selects certain formal features of the jihadist discourse and presents them as factual elements, thereby stripping them of their normative and legal character.
From an interaction-analytic perspective, this switch to “exhibition” mode is significant because it projects an outsider-perspective that the counsel pretends to share with the audience. Previously, we have described this practice of “putting a courtroom participant on display” as token reduction.Footnote 47 This phenomenon occurs when a legal professional emphasizes the formal features of a lay participant’s discourse (usually the defendant’s) at the expense of its content. In Peircean terms, the legal professional redirects attention to the “indexical” (or associated) social meanings of the lay participant’s performance, thereby downgrading the significance of its “symbolic” (ie, its referential or denotational) content.Footnote 48 Consequently, the question of “how the defendant speaks” eclipses “what the defendant says”, resulting in a form of radical disempowerment: the defendant is no longer fully participating (as the content of their words no longer matter), but is reduced to an object of inspection and of fact-finding. This also applies to the present case, with the caveat that it is not only the defendant’s discourse that is put on display, but also the entire “system” that he allegedly embodies. Instead of engaging with the jihadists’ legal discourse and bureaucratic institutions in terms of its legal content, they are literally shown to the other trial actors on the screen in front of them.
This practice of exhibition echoes colonial administrative techniques of displaying “native” legal systems as curiosities while denying their legal validity. The shift to exhibition mode represents a form of recognition that simultaneously acknowledges and dismisses – a quintessential move in the colonial politics of recognition where alternative normative orders are made visible only to be rendered illegitimate.
In this case, the shift to exhibition mode is indicative of the OTP’s persistent refusal to recognize the coercive apparatus established by Ansar Dine as a legal order, whose jurisdiction it may contest but with which it can nevertheless meaningfully converse in legal terms. While the OTP acknowledges the ostensibly bureaucratic features of this apparatus, it declines to address the jihadists’ claims to legality, instead literally putting on display the more picturesque features of the system the latter put in place. Ansar Dine, for its part, had actively pursued the idea that its system represented an alternative form of legality, explicitly rejecting the jurisdiction of the non-Islamic legal orders represented by the Malian state and the ICC.Footnote 49 The institutions they created exemplified the transformation of Sharia in the mould of the globalized model of nation-state positive law and its mutation into a full-fledged administrative, legal and judicial “system” operating on the basis of fixed rules.Footnote 50 In their accounts, the OTP counsel indeed emphasize the perceivably bureaucratic features of the rebel institutions. However, the adoption of an exhibition mode, the resulting token reduction and the general refusal to engage with the system in terms of its legal content simultaneously dismiss its claim to the status of “law”. Instead, the rebel institutions are systematically characterized as the brutal expression of “an ideology” (see excerpt 1 above) and as an attempt by the jihadists “to impose their will” on the people of Timbuktu (see excerpt 2 above).
This rejection of the legal status of the new coercive structure goes together with a refusal to acknowledge its alleged Islamic character. References to the latter are conspicuously absent from the OTP’s account of the context of the shrine destructions (apart from the aforementioned self-identifications), and the coercive structure is consistently qualified as the expression of an “ideology” rather than as a religious project. Paradoxically, this disavowal is most pronounced in the rare instances where the OTP explicitly mentions “Islamic law” and “Sharia”. The following excerpt is from the first day of the trial, when a prosecution counsel asks witness P-0182, the OTP’s chief investigator, to present an overview of the evidence that his team has collected on the activities of the various rebel groups involved in the occupation of Timbuktu:
Excerpt 5
“Q. And was one of the stated objectives, according to the groups, the imposition of new rules on the community which the groups claim to be based in Islamic law or sharia?
A. That’s correct. That was the main announced objective.
Q. Could you give an example or two examples of the kinds of new rules that were imposed on the population by the groups?
A. Yes. Perhaps to – to put it in context, the structures were set up and it was announced that the rules in town would be based on – on Islamic law and that the rules were not necessarily announced as such to everyone, but through the structures that were set up and the implementation of these in the everyday life people became aware of what the group saw as appropriate and not. One example was the dress code for women. There was the issue of – of women being out in the street on their own. There’s the issue of smoking, drinking, playing music and – and also the various types – restrictions on various types of festivities.”Footnote 51
In this jointly authored description of the newly established coercive structure,Footnote 52 the prosecution counsel and the OTP investigator tap into a common, reified understanding of Sharia as a closed set of prohibitions (rather than, for example, an “interpretive methodology” or a structure of “open-ended argumentation”),Footnote 53 which is shared by both jihadists and their opponents. However, the exchange explicitly brackets the jihadists’ claim that their interpretation of this body of rules is the “authentic” expression of Islamic law. Both the counsel’s opening question and the witness’s two subsequent answers presuppose the existence of a reified, objectifiable form of Islamic law. However, the OTP’s attribution of “ownership” to the associated authenticity claim (“which the groups claim to be based”), together with the subsequent specification by the witness that the rebels announced that “the rules in town would be based on … Islamic law” but inhabitants had to determine for themselves “what the group saw as appropriate”, strongly suggest that the jihadists’ interpretation of “Islamic law” was not universally shared, idiosyncratic and flawed – an instance of what Kertzer referred to as “solidarity without consensus”.Footnote 54
Transforming Islamic law into a legal fact
The OTP’s refusal to recognize the legal nature of the coercive structure established by the rebels is also reflected in its reframing of selected aspects of this structure as “constitutive elements” of the crime. By processing the rebel-established normative order as “legal facts” within the Rome Statute framework, the OTP ostensibly fulfils its central role in the trial proceedings: to formulate the charges against the accused, provide the supporting evidence and enable the judges to deliver a verdict. Consequently, the OTP pays only marginal and limited attention to the fact that the destructions were part of a political project and must be understood in “the broader context of governing and administering Timbuktu and its region”,Footnote 55 which entailed both establishing a rival “legal” order modelled on positive law (see the previous section) and “re-semiotizing” the urban landscape as governed by the rules of Islam.Footnote 56 In fact, the implementation of this project and its justification by Ansar Dine spokespersons, including Al Mahdi, are mentioned in the OTP’s account of the facts only insofar as they provide evidence of the constitutive elements of the charged crimes. Consider the excerpt below, in which the lead prosecution counsel presents a short video clip of Al Mahdi explaining the religious motives behind the shrine demolitions to foreign journalists, as part of the OTP’s presentation of an interactive platform compiling the available audiovisual evidence on the destructions. As in excerpt 4 above, the prosecution counsel does not address the content of the jihadists’ motives, but presents the footage solely as evidence of the moral component of the crime (mens rea) and the perpetrators’ “common plan”:
Excerpt 6
“And exactly with this first video you have an illustration of what he might have said to the journalists. It’s from video 0001-7037. The transcript of this video is on divider 9, specifically lines 964 to 966 in divider 9. It’s an excerpt from the M6 television program Enquête exclusive. It shows Mr. Al Mahdi at the El Mokhtar cemetery, explaining and justifying the destruction. I’m playing it with sound and the video is subtitled.
(Video broadcast)
‘If a tomb is higher than the others, it must be demolished. We’re doing this for God. We will remove from the landscape everything that doesn’t belong there.’
M. DUTERTRE: Again, you have very clear evidence of the mens rea and the common plan of Mr. Al Mahdi and his co-authors.”Footnote 57
In the footage, Al Mahdi justifies the demolitions to foreign journalists, illustrating how the perpetrators framed the demolitions as an “Islamically motivated legal act” and the expression of a new religious policy imposed by the jihadist authorities. However, apart from labelling it as evidence of Al Mahdi’s mens rea and the perpetrators’ common plan, the OTP presents the footage without further comment. This transformation of religious justification into mere evidence of criminal intent once again exemplifies the intrinsically “colonial” nature of the ICC’s recognition of alternative normative orders: Islamic normativity is acknowledged only insofar as it can be processed through the Rome Statute framework, stripped of its normative content and reduced to proof of malicious intent.
Ultimately, this erasure results in the attribution of a new moral predisposition: the perpetrators’ actions are reframed as an expression of discriminatory intent and religious hatred. In the words of the lead prosecution counsel in the OTP’s sentencing submissions:
Excerpt 7
“Mr. Al Mahdi, who lived in Timbuktu, was well aware of the importance and historical and religious value of the sites attacked, and the attack revealed a discriminatory intent.”Footnote 58
It could be argued that this attribution of discriminatory intent is more closely aligned with the crime against humanity of persecution (article 7(1)(h) of the Rome Statute) than with a war crime charge, and it is literally cited as such in the 2016 Karadžíc judgment.Footnote 59 However, throughout the trial, prosecutor Fatou Bensouda and other OTP counsel repeatedly emphasized the psychological impact of the jihadist vandalism on the residents of Timbuktu.Footnote 60 Below, an anonymous local cultural expert, called by the OTP, formulates this psychological impact as an explicit objective of the rebels and highlights its connection to the military operations. Asked to elaborate on a statement in his pre-trial deposition, he asserts:
Excerpt 8
“The reason this is said is because we were in a war context. And in this context of war, anything that can hurt the enemy sometimes happens. And in the specific case of the destruction of… the mausoleums in Timbuktu, it’s really a question of … of … of … if you like, a war activity to destroy the people of Timbuktu, at least psychologically, by destroying property to which the people of Timbuktu have an unshakable attachment.”Footnote 61
Formulated in this way, the alternative mens rea is fully consistent with the war crime charge.
Islamic law as personal circumstance
Despite its general rejection of the jihadists’ legal aspirations, there are nevertheless a few instances in which the OTP explicitly addresses the legal content of Al Mahdi’s discourse. These passages have one key feature in common: they do not deal with the qualification of facts but rather present a picture of the person and character of Al Mahdi. On the morning of the second day of trial, the prosecution continues its direct examination of the OTP’s chief investigator (see also excerpt 5), asking him to comment on selected passages from the transcripts of Al Mahdi’s initial interrogation, immediately after his arrest in Niamey (September 2015). For more than 20 minutes, the counsel and witness discuss statements by Al Mahdi that directly touch on religious content, including the fact that he initially recommended not to demolish the shrines (although the building of shrines is forbidden, their demolition was not mandatory and would do more harm than good) and the distinction he made between “Sharia jurisprudence” and “Sharia policy” (ie, making decisions on issues where the available jurisprudence is inconclusive, in this case, whether or not to destroy the shrines).Footnote 62 This evidence had already been briefly mentioned counsel in the lead prosecution’s opening statement on the first day of trial, in its overview of the events leading up to the destructions:
Excerpt 9
“It was in this context that Abu Zeid consulted Mr. Al Mahdi on the question of destroying the mausoleums. And to be very precise, Mr. Al Mahdi saw no objection – and I quote ‘to the removal of something that was not permitted’ – end of quote –, even if he did recommend not destroying the mausoleums so as not to offend the population. The prosecution does not dispute this.”Footnote 63
The lead prosecution counsel explicitly frames the defendant’s objections as a mitigating factor of which the OTP is aware, anticipating that it will be raised by the defence later and demonstrating that his office is acting transparently by also sharing exculpatory evidence.Footnote 64 The defence indeed returned to Al Mahdi’s objection in its sentencing submission, strongly emphasizing the courage involved in advising against the wishes of his superiors.Footnote 65
But the defence’s “legal” recognition of the jihadist institutions takes on an even more explicit form. Later on, Al Mahdi’s counsel explicitly characterizes the trial as a conflict between two separate legal orders, one of which is religious in nature. While the counsel aligns himself with the normative framework of the Rome Statute and refrains from any Sharia-based normative assessment of the destructions, he positions himself as a mediator between these two realms:Footnote 66
Excerpt 10
“Well, in the case of Mr. Al Mahdi, you have this difficult, painful, delicate meeting of two legal orders – an inevitable meeting – which, at some point, collide. My learned colleague Aouini and I, as members of our community, believe that cultural property must be protected, with a criminal sanction, a special sanction, and that there is no exception to this. And you are condemning a man who, because he belongs to his culture to the tips of his fingernails and his hair, who can say – and I am tempted to say ‘wrongly’, because I belong to the other side of the river, to the other legal order – who can say: ‘No, when a piece of property, even cultural, even historical, even religious, is an insult, is an offense against religion, then yes, it must be stopped.’ And it is this arbitration, not that you have … that you will carry out …”Footnote 67
The excerpt illustrates the discursive regime under which it becomes acceptable to acknowledge the “Islamic” and “legal” character of the jihadist normative order: it must be presented as a separate province, metaphorically conceived in spatial terms as “the other side of the river”, to clarify for the ICC the “phenomenological bubble” in which Al Mahdi operated, the circumstances under which he arrived at his actions and the ethical dilemmas he faced in doing so. The fact that Al Mahdi acted in good faith and according to “honourable” moral convictions (rather than religious hatred, for example) is offered as a mitigating circumstance, but the defence does not draw any conclusions as to whether this implicit recognition of the “legal” nature of the demolition order affects the prosecution’s qualification of the facts as a war crime, a topic we will address in the next section.
The war crime charge and the narrative component of conflict
Trial actors must always play by the rules of the game for which they are mandated: in the case of the ICC, the Court must play by the rules set forth in the Rome Statute. In Al Mahdi, the trial actors engage with Islamic legal traditions to the extent that it is possible within the limits and objectives set by these rules: they describe the new institutions created by the rebels to establish the context of the crime, process elements of these institutions as incriminating “facts” and occasionally reconstruct them as mitigating factors, all within the framework of the Rome Statute. Because of the Rome Statute’s constitutive nature, it makes little sense to ask the ICC to play by a different set of rules, as this would imply that the ICC ceases to be the ICC.
What remains unexplained are certain systematically recurring descriptive choices by the OTP related to the nature of these new institutions: the fact that they are labelled as the expression of an “ideology”, the OTP’s shift to exhibition mode and its denial of their claim to the status of “law”, and the erasure of the rule-based motivations offered by Al Mahdi and the rebels and its substitution with alternative explanations such as religious hatred or crushing resistance to jihadist rule. The OTP also persistently ignored the Islamic aspirations of the new normative order, except for those passages elaborating on Al Mahdi’s phenomenological bubble and his personal experience of the 2012 events. While the defence emphasized this bubble more dramatically, it accepted the basic premise that their client’s perception of the situation had no bearing on the legal qualification of the facts. It could therefore only be submitted as a mitigating circumstance.
In our view, there were good reasons for the OTP to describe the new institutions created by the jihadist rebels in this ostensibly reductive way, and these were directly related to the possibilities and limitations set by the Rome Statute for prosecuting the desecration of the shrines.
Within the Rome Statute framework, the destruction of cultural property constitutes a war crime under articles 8(2)(b)(ix) and 8(2)(e)(iv). However, it is not included in the list of crimes against humanity in article 7(1). Overall, the international legal regime for the protection of cultural property – including the relevant provisions of the Rome Statute and other instruments such as the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed ConflictFootnote 68 – is primarily “conceptualized to protect cultural property from attack by others outside the state or group”.Footnote 69 This, in turn, severely limited the OTP’s manoeuvring space in prosecuting the destructions of the shrines. As Mark Drumbl points out, the jihadists’ “[c]ulturally destructive conduct in Mali … triggers vexing questions regarding the re-definition of culture from within the group by members who wish to reconstitute cultural content”.Footnote 70 William Schabas, in an article provocatively titled “Al Mahdi has been convicted of a crime he did not commit”, goes so far as to argue that the war crimes charge did in this case simply not apply.Footnote 71 In the absence of a direct link to an act of combat (the common sense meaning of “attack”),Footnote 72 the mere fact that Ansar Dine, as a rebel force with strong local roots,Footnote 73 had come to power after an armed uprising is arguably not sufficient for the war crimes charge to be applicable to the shrine destructions.
We do not wish to take sides in the doctrinal debate over whether Trial Chamber VIII correctly interpreted the war crime charge, as our interest lies in how adjudication is actually done rather than how it ought to be done. Nevertheless, comments such as Drumbl’s and Schabas’ highlight the challenges faced by the OTP in prosecuting the shrine destruction and provide insight into how the selective recognition of Islamic normativity helped to build the case against Al Mahdi. Of particular significance is Drumbl’s observation that the existing legal regime for the protection of cultural property is primarily tailored to armed conflict with forces from outside the community, as this has profound implications for how the takeover of Timbuktu by Ansar Dine and the new “coercive structure” it established is portrayed in the OTP’s narrative. It explains, for example, the OTP’s repeated characterization of the conflict as an “occupation”, suggesting that the inhabitants of Timbuktu were subjected to domination by outside forces, as Schabas also noted earlier.Footnote 74 It also explains why it is impossible for the OTP to acknowledge the newly created rebel structures as “legal” institutions, or to accept the jihadist account of the destruction of the shrines as a “legal” measure by which the new administration sought to change the religious practices of the population under the auspices of a “legal” order. From a temporal perspective, the incipient bureaucratization of the jihadist regime and the emergence of a “legal” order, albeit an illegitimate one, would mean that the war was over and political governance had begun. The war crime charge would therefore no longer apply. The central question, therefore, is not so much whether the jihadist institutions issued an unlawful order that violated the law of armed conflict, but rather whether these institutions can be considered “legal” at all.
The intentional destruction of cultural property obviously has a broader resonance than the war crime charge. Others have argued that it should also be punishable outside of armed conflict and explicitly listed as a crime against humanity,Footnote 75 while Raphael Lemkin’s original formulation of the concept of genocide also included targeting the cultural existence of a population.Footnote 76 And although it is not listed as such in the Rome Statute, the shrine destructions could be construed as an act of (religious) persecution under article (7)(1)(h), or as an instance of “(o)ther inhumane acts … intentionally causing great suffering” under article 7(1)(k).Footnote 77 In this case, however, such a prosecution would have been fraught with a number of serious problems, by no means limited to demonstrating that the threshold of gravity had been met in a case involving only “stones, not bones”. Again, given the local roots of the Ansar Dine rebel movement, it would have raised questions of ownership, in particular concerning the extent to which political authorities can be held responsible under current international protection regimes for the protection of cultural property in the territory under their jurisdiction.Footnote 78 Perhaps the most sensitive issue, in such a scenario, is that the OTP and the Chamber would have to decide how far the right to redefine cultural practice “from within” extends and where exactly its limits lie. This would take the debate far beyond the issue of religious persecution per se and open the can of worms of how to reconcile conflicting notions of religion and religious freedom, a conundrum that is conveniently swept under the carpet by the OTP’s portrayal of the rebels as external “occupiers” and its reframing of their “benevolent” motivation behind the destructions (saving the souls of the people of Timbuktu) as an expression of religious hatred.
From the OTP’s perspective, the war crime charge is probably the safest bet for a successful prosecution. However, our analysis has shown that there are risks and consequences associated with this strategy, as it forces the OTP to take a position in what is essentially a political conflict between opposing narratives. As we have seen, prosecuting the destruction of the shrines as a war crime requires not only rejecting the rebels’ claim to legality and statehood, but also involves framing them as external “occupiers” and denying any possible connection to the local community. Importantly, this “othering” is also reflected in the OTP’s refusal to recognize their claims to represent the Islamic religion, also documented above. The fact that Al Mahdi, a respected Islamic scholar, himself comes from a local background flagrantly contradicts this religious “othering” of the rebels. His recruitment is presented as an attempt to bolster Ansar Dine’s legitimacy among the local population (see excerpt 4), but the logical conclusion that Salafi interpretations of Islam also enjoyed (at least some) support among the inhabitants of Timbuktu is never drawn.
The OTP’s silence on the substance of the rebels’ religious claims contrasts sharply with the prominence of Islam in other parts of the OTP’s submission, both in its account of Timbuktu’s glorious past as an ancient centre of Islamic learning,Footnote 79 the emotional attachment of Timbuktu’s inhabitants to the destroyed shrines,Footnote 80 and the various ritual practices that have developed around them.Footnote 81 An example of such a “historical” or “anthropological” reference to Islam is the following excerpt, taken from the prosecution’s submission at the confirmation of charges hearing:
Excerpt 11
“I ask you to imagine the rituals and practices of the people around these mausoleums. Please look at them through the eyes of the people of Timbuktu. Madam President, judges, this brings me to my second point about the practices and rites in general of the local population around the mausoleums and mosques of Timbuktu. To illustrate these practices, I refer you to the testimony of P-0114. I’ll read his testimony in English.Footnote 82
‘Mausoleums are very important for the community. There are people who go to visit the mausoleums every day. Doing that is a symbol of faith in Timbuktu. There are also people taking care of the mausoleum and they can go and sit next to the mausoleum during the day.’Footnote 83
End of quote. These two photos show people gathered around the mausoleums. This shows that these mausoleums and mosques are not only connected to the past of the people of Timbuktu, but also to their present. In fact, Timbuktians often visit the mausoleums to pray, read Koranic verses, make offerings, or go on spiritual retreats. Rituals such as circumcision and Mawlid, the commemoration of the birth of the Prophet Mohammed, are also performed.”Footnote 84
As in excerpts 3 and 4, the OTP switches to exhibition mode, simultaneously projecting two images of a religious gathering around one of the shrines on the screen (taken before the destruction) and explaining them to the audience. However, the crucial difference is that in excerpts 3 and 4, as in the entirety of the OTP’s account of the rebel institutions, the OTP’s narrative did not address the Islamic component of the depicted institutions, even though it was an essential part of their self-identification. In the current excerpt, by contrast, Islam is an integral part of the practices centred around the shrines listed by the OTP (prayer, reciting Quranic verses, circumcision rituals, Mawlid celebrations), and these practices are presented as self-evident in their (specifically Islamic) context. Islam is here no longer a “claim” (which the OTP either ignores or rejects, as in excerpt 5), but a “fact”. By providing such “ethnographic” descriptions of these local ritual practices, their Islamic (and normative) nature is thus simply taken for granted.
These tacit judgements about “right” and “wrong” interpretations of Islam may be an unintended consequence of the OTP’s balancing act in putting together its indictment, but they are far from innocent. Firstly, they oversimplify a highly complex past and deny the internal diversification of Islamic communities. Mali has a long history of jihads and counter-jihads, resulting in the repeated destruction and reconstruction of religious monuments, and from this perspective the events of 2012 were only the latest iteration of this cyclical movement.Footnote 85 Furthermore, both the “local” Ansar Dine militia (founded by the former Tuareg nationalist leader Iyad ag Ghaly) and the “international” al-Qaeda in the Islamic Maghreb (AQIM) also recruited locally and enjoyed at least some local support,Footnote 86 while Salafism is also part of the political fabric in the south of the country.Footnote 87 Even more concerning is that, in addition to oversimplifying the complex history of northern Mali, these implicit judgements also position the OTP within the ongoing long-term conflict underlying the shrine destructions. This conflict has a strong narrative component, and the succession of jihads and counter-jihads mentioned above has been fuelled precisely by competing interpretations of what constitutes the proper form of Islam. By emphasizing the importance of Islam to the “local population” while refusing to acknowledge the Islamic aspirations of the alleged “occupiers”, the OTP is, perhaps inadvertently, taking a stance in this conflict. It fell into a trap that, according to Martti Koskenniemi, poses a fundamental threat to any attempt to resolve political conflicts within a legal framework. On the one hand, it is simply impossible for an international tribunal such as the ICC “[not to take] judicial notice of a certain number of background facts. The moment it does this, however, it will seem to be conducting a political trial to the extent that what those facts are and how they should be understood is part of the conflict that is being adjudged”.Footnote 88
Conclusion
We began by pointing out that reformulation and selective recognition are inevitable in the encounter between the ICC and alternative normative orders, and that such practices are reminiscent of the colonial discovery of “customary law”. The Rome Statute framework and classical, pre-codified Islamic normativity represent fundamentally different “language games”. For this reason, the Islamic legal tradition must be reinterpreted through the lens of the Rome Statute’s positive law framework. As we saw, this is enshrined in the language of article 21 itself, which requires a detour via “national laws” to derive general principles from “legal systems of the world”. Next, we turned to the Al Mahdi trial in order to examine colonial recognition in action. In the empirical sections, we demonstrated that selectivity in Al Mahdi arose from the structural constraints of prosecuting cultural destruction as a war crime – a framing that necessitates rejecting the jihadists’ governmental authority while simultaneously validating the religious significance of the destroyed sites by referencing Sufi Islamic practices. The OTP’s expressivist desire to “send a message” about the legal protection of cultural heritage threatened by armed jihadist groups did not only ignore other, more serious human rights violations to which the Timbuktu population was subjected.Footnote 89 It also steered the ICC deep into Islamic normative debates, selectively recognizing certain forms of Islamic practice while refusing to acknowledge others, as colonial authorities did before them.Footnote 90 It is explicitly not our contention that the jihadist occupation of Timbuktu did not require legal intervention. The human rights violations committed were severe, systematic and well documented. However, the OTP’s focus on cultural heritage and the prosecution of the destructions as a war crime fundamentally undermined the ICC’s legitimacy. It placed the Court in an impossible position, because it could not adjudicate the case without also making determinations about religious and normative practices and dismissing the jihadists’ claim to legality. Any such determination risks reproducing the dynamics of colonial recognition. Instead, the ICC could have attempted to treat the bureaucratic structures created by the jihadists for what they really were: an attempt to establish an alternative legal system that systematically violated human rights standards. This would mean recognizing that system as “law” – albeit law that falls short of international standards – rather than denying its legal character and passing judgement on authentic Islamic practice.
Could the OTP and Trial Chamber VIII in Al Mahdi have engaged more extensively with Islamic legal traditions, as some of the critics whose work we cited earlier suggested? The answer is probably yes, but from reification and the reformulation of Islamic normativity through the lens of positive law there is most likely no escape. Our analysis of Al Mahdi revealed that the ICC was already deeply involved with Islamic normativity through the very process of adjudicating the shrine destructions, as the war crime charge forced it to differentiate between acceptable and unacceptable forms of Islamic practice in ways that resembled the selectivity of colonial recognition. One might speculate as to whether a different, perhaps more comprehensive approach to engaging with Islamic normativity could have avoided this pitfall. Unfortunately, we tend to be pessimistic in this respect. Apart from the constraints imposed by the war crime charge, we should also bear in mind that international criminal law is itself the product of particular legal and political histories. Therefore, it is unlikely that an institution such as the ICC will ever be able to serve as a neutral ground for making pronouncements about competing normative orders, as the only way to do so seems to be the “boxing in” of such alternative normativities within its own framework. This leads to the paradoxical conclusion that the ICC’s current legitimacy crisis might be better served by a more modest vision of international criminal justice – one that acknowledges its own structural limitations and focuses on clear violations of fundamental human rights, rather than pretending to adjudicate the legitimacy of entire normative systems. In this light, the politics of recognition that we encountered in Al Mahdi should probably not be viewed as a call for greater engagement, but rather as a cautionary tale about the dangers of overreach and the inherent limitations of the international criminal justice project.
Competing interests
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