CYIL vol. 11 (2020)

CYIL 11 (2020) CULTURAL RIGHTS RELATED TO CULTURAL HERITAGE AND THEIR PROTECTION … a religious and political rule over the territory. During that time Ahmad Al Mahdi was viewed as an expert on religious matters and was named a leader of morality brigade called Hesbah . 34 One of his tasks was to monitor the religious behaviour of local population. At this point, it is important to mention that the city of Timbuktu hosts a number of mausoleums of local saints that are visited and worshiped by the local population. 35 Such practice is considered blasphemous under the strict interpretation of Islamic law as there should be no structure over a grave. Driven by such interpretation, after initial hesitation, the extremist groups ruling the city decided to destroy such places. Al Mahdi was in charge of this operation – he wrote a sermon dedicated to the destruction of the sites to justify the actions – he organized the destruction of the structures and personally took part in it. 36 Finally ten important and well known structures were attacked and destroyed by Al Mahdi and other individuals under a common plan. 37 These sites were mostly mausoleums of local saints and also an ancient door of a mosque. All of them were important historical and religious objects and nine of those ten sites had the UNESCO World Heritage site status. 38 None of them was a military objective or was close to a military objective, so they did not constitute a legitimate target. 39 Al Mahdi was found guilty of those actions under the Article 8 (2)(e)(iv) of Rome Statute – the war crime of attacking of protected objects. 40 Up to this point everything seems to be clear, but the contrary is true. A number of objections appeared immediately after the trial, criticizing several aspects of the case. For the purpose of this paper and to fully understand the extent of those reservations, we will focus on several elements of the case, particularly those related to human rights protection. Some of those aspects were partly discussed by the court in its decision, however the majority was left out. To start with those mentioned by the court, we will focus on the speech of the prosecutor. She clearly noted that the attacked sites were an integral part of religious life of local population and for the community they constituted a common heritage. 41 The mausoleums were frequently visited by the local inhabitants as places of prayer and pilgrimage. 42 The value of the mausoleums was not only universal for the whole international community but more importantly they had an important role in the lives of locals. The prosecutor describes the attack against the mausoleums as an attack against the identity, memory, and future of local community. 43 34 Ibid. 35 Ibid. Para. 18. 36 Situation in the Republic of Mali in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi . Judgment and Sentence. Para. 45-56. 37 Ibid. 38 Ibid. Para. 39. 39 Ibid. 40 Situation in the Republic of Mali in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi . Judgment and Sentence. 41 Summary of the Judgment and Sentence in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi . International Criminal Court. Para. 18. 42 Ibid. 43 Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, at the opening of Trial in the case against Mr Ahmad Al-Faqi Al Mahdi.

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