ICC to war criminals: Destroying shrines in Timbuktu is worse than rape

TIMBUKTU, Mali — When the first-ever trial of a jihadi at the International Criminal Court (ICC) began this week in The Hague, the charges were of the destruction of historic Muslim shrines in this ancient city on the edge of the Sahara. What won’t be litigated are the more than 100 allegations of sexual violence and rape that occurred during the same 10-month reign of terror in 2012 and 2013, when al Qaida-linked militants overran parts of northern Mali and declared their own state.

Yet the man on trial, Ahmad al-Faqi al-Mahdi, is allegedly responsible for both sets of crimes. As a top police official during the jihadi occupation of Timbuktu, Mahdi not only supervised the razing of religious shrines; he oversaw the systematic torture, rape, and sexual enslavement of women under the militants’ control, residents and independent investigators say.

Thirty-three victims have already come forward as part of a complaint filed last year before the High Court of Bamako, in the Malian capital. Their testimony, as well as the results of an extensive investigation by the Paris-based International Federation for Human Rights (FIDH), was shared with Hague officials.

Yet ICC prosecutors chose to focus solely on the destruction of cultural heritage. Mahdi was caught on video tearing apart the door of a mosque and encouraging his men to demolish shrines that were protected UNESCO World Heritage sites. From an evidentiary perspective, it’s a slam-dunk — indeed, Mahdi will plead guilty in what is expected to be a rare win for a court whose reputation has suffered in recent years. But by building its case exclusively around the shrines, some feel that the ICC is missing a symbolically important opportunity to punish more heinous crimes.

“The office of the (ICC) prosecutor should have continued its investigation to establish all the facts,” said Florent Geel, the Africa director at FIDH. “Since its first proceedings, the ICC has chosen to prosecute cases based on charges it can defend and prove. … This is unfortunate since a FIDH investigation indicates that these sexual crimes have probably been the most massive crimes committed in Timbuktu.”

Alimata, whose name has been changed to protect her identity, will never forget the day in 2012, during the city’s Islamist occupation, when armed men dragged her away to a police station that was likely under Mahdi’s command. She was 15 at the time, and the jihadis detained her for two days before declaring her married to one fighter. Alimata’s designated “husband” kept her prisoner in a house for a month, where he raped her on a daily basis. Sometimes he allowed other armed men — as many as five at a time — to gang-rape her as well.

“He was beating me all the time. Especially when I tried to resist him, he punched me and kicked me,” Alimata recalled in an interview at the home of a local activist in Timbuktu.

Alimata’s ordeal was not an isolated case. Dozens of other women and teenage girls recounted similar stories to FIDH investigators of abduction, forced marriage, and rape by Islamist occupiers.

Timbuktu’s descent into chaos began in January 2012, when nomadic Tuaregs from the north joined forces with several Islamist groups, including the al Qaida-linked organization Ansar Dine, to launch a rebellion against the Malian government. They declared an independent state in much of the northern part of the country and imposed a strict version of sharia, or Islamic law. Music was outlawed, unmarried men and women were forbidden from speaking to each other, and shopkeepers could be arrested for selling tobacco. The jihadis imposed cruel punishments on those who broke their rules, including public floggings and amputations.

But while the jihadis enforced their uncompromising moral code in public, they engaged in all manner of horrific abuses in private. According to a U.N. official in Timbuktu who spoke on the condition of anonymity, roughly 100 women have come forward with allegations of sexual violence by jihadis since French forces liberated the city in January 2013. Given the stigma attached to such allegations in Mali’s conservative Muslim society, the real number of victims is almost certainly higher.

At the time these abuses took place, Mahdi was one of the most powerful men in the city. He served first as the head of the Hisbah, or morality police, and later, the jihadis’ main police force, known as the Islamic Police, according to FIDH. In both positions, he was partly responsible for enforcing the jihadis’ strict rules. Mahdi appears in videos of sessions of the Islamic Court, the jihadis’ highest judicial authority, which validated forced marriages, among other Islamist impositions. (As head of the Islamic Police, Mahdi implemented the Islamic Court’s decisions.) It is therefore difficult to argue that he didn’t know about the sexual violence perpetrated by police officers who served under him.

Yet the ICC chose not to make these allegations a part of its case against Mahdi. Because they were able to rely heavily on video evidence of the destruction of monuments, prosecutors never conducted a thorough on-the-ground investigation of other crimes alleged to have taken place in Timbuktu during the occupation. They didn’t even interview victims of sexual violence, despite having been handed evidence gathered by FIDH, according to a source with knowledge of the investigation.

Richard Nsanzabaganwa, an advisor to the ICC prosecutor’s office, said a broader investigation that encompasses other alleged crimes, including sexual violence, “is still in progress.” But he admitted that the ICC prosecutor doesn’t have evidence that is solid enough to broaden the charges against Mahdi. And now that the trial is underway, any subsequent charges would need to be brought as a separate case.

Building a case around sexual violence is not easy, especially given the ICC’s limited resources. “It’s difficult to prove sexual violence,” said Kevin Heller, a professor of criminal law at SOAS University of London. “You have to investigate, to get witnesses. It’s not like cultural monuments that people saw. This is time-consuming and expensive.”

Moreover, ICC prosecutors have long emphasized the potential deterrent effect of prosecuting those who destroy cultural heritage. “It’s important to send the message that this is a grave crime that must be punished and that attacking the identity of people and their values cannot be left as a secondary crime,” Nsanzabaganwa said.

Still, there are those who see an element of self-service in the ICC’s prosecutorial strategy. The international tribunal has suffered a series of embarrassing setbacks in recent years. Not only did its case against Kenyan President Uhuru Kenyatta and his deputy, William Ruto, fall apart because of what some have argued was an unwise prosecutorial strategy, but it has also watched its most high-profile indictee, Sudanese President Omar al-Bashir, evade arrest even in countries that are bound by the Rome Statute, which created the ICC.

The ICC’s reputational slide began during the tenure of chief Prosecutor Luis Moreno-Ocampo, whose term ended in 2012. His successor, former Gambian Justice Minister Fatou Bensouda, has a shot at a clear victory with this trial, which is expected to last only a week because Mahdi is pleading guilty in the face of overwhelming evidence. Yet some critics allege that she has been overly focused on getting a quick conviction.

“The prosecutor has it upside down. She established an accusation from a political opportunity,” said Juan Branco, who served as a liaison officer in the ICC prosecutor’s office in 2010-2011. “In a context of a tight budget and long procedures, 1/8 the prosecutor3/8 reduced the charges to shorten the proceeding.”

The emphasis on speed and decisiveness has arguably come at the cost of the ICC’s own commitment to bring perpetrators of sexual violence to justice. It’s been a little more than two years since the office of the ICC prosecutor adopted a new policy regarding the prosecution of sexual and gender-based crimes. According to this policy, the prosecutor must offer explicit justification for failure to prosecute such crimes when convincing evidence points to them. Yet in the case of Mahdi, prosecutors have offered no such justification, saying only that the investigation is ongoing. In fact, the new policy has yet to translate into a single new case.

In Timbuktu, Alimata longs for justice. Like others who survived sexual violence during the Islamist occupation, she wants her rapists to be punished and her suffering to be acknowledged.

“I want reparation, and I want to open a shop,” she said. “I need to be self-sufficient because no one wants to marry me since I was married by force to a jihadi.”

She says she would even testify before a court — either in Mali or in The Hague — if only one was willing to hear her.