16 April 2019

Mali: Judges Approve Mali Reparations Implementation Plan in Al Mahdi Case

International Criminal Court judges have approved the final plan for implementing reparations in the case of former Malian militant Ahmad Al Faqi Al Mahdi, who was convicted in September 2016 for the war crime of attacking religious and historical monuments. The three-year plan comprises of three categories of reparations: individual, collective, and symbolic.

In August 2017, Trial Chamber VIII ordered Al Mahdi to pay €2.7 million (US$ 3.18 million) in reparations for destroying or partially destroying nine historic buildings and the door to a mosque in the ancient Malian city of Timbuktu. Al Mahdi had been convicted on his guilty plea over the crime committed during 2012 when he headed the Islamic Police in the Ansar Eddine militia. He was sentenced to nine years in prison.

Al Mahdi is indigent, so the Trust Fund for Victims (TFV) is providing the money for the reparations. Besides the €2.7 million award set by judges, the TFV has added €1.35 million to the reparations plan in the Al Mahdi case.

The collective reparations approved include the rehabilitation of doors, windows, and enclosures of cemetery walls, planting of trees, and improving lighting and surveillance. A support fund will be set up for the buildings' customary annual maintenance, while those in charge of protecting and maintaining the buildings shall receive training to improve their capacity.

Other approved projects include the provision of assistance for victims to return to Timbuktu; establishment of an Economic Resilience Facility to support economic initiatives proposed by members of the Timbuktu community; a psychological support program; and the creation of safe spaces for women and girls.

Under symbolic reparations, a ceremony will be held where €1 will be presented to Malian authorities and to the United Nations Educational, Scientific and Cultural Organization (UNESCO) to acknowledge the harm suffered by Mali and the international community due to the loss of cultural heritage.

In the reparations order, judges determined that the crime committed by Al Mahdi had caused physical damage to the protected buildings, as well as economic harm and moral harm to victims. Individual reparations were awarded to those who suffered more acute and exceptional harm compared to other Timbuktu residents. While individual reparations were awarded to those whose livelihoods exclusively depended upon the protected buildings, for moral harm suffered reparations were awarded to those whose ancestors' burial sites were damaged in the attack.

How much individuals will receive is redacted from documents made public by the court. However, the TFV has explained that for moral harm, the award amount is calculated on the basis of information from the field and Malian law governing fines for altering or destroying national cultural heritage, specifically the Malian Cultural Heritage Act. The economic harm figures are based on information on salaries in Mali and the cost of living in Timbuktu, taking into account the average Malian household size.

In the latest ruling, judges rejected the contention by victims' lawyers that the Malian Cultural Heritage Act is not a valid point of reference and that the amount each individual should receive be increased by 25 percent. They stated that since Al Mahdi's liability was set at €2.7 million, increasing individual reparations awards would slash the money available for collective reparations.

The judges also said the TFV's approach to determining awards was appropriate. They noted: "It is an inherently difficult exercise to arrive at a monetary sum to repair the moral harm caused by the loss of irreplaceable historical buildings. The TFV itself acknowledges that the monetary estimate derived from the Malian Cultural Heritage Act is only an indicative figure derived from an analogous context."

According to the TFV, the Act does not concern punitive damages but lays down fines for altering or destroying protected objects belonging to national heritage. Judges considered this context to be sufficiently close to the reparations awards issue as the fines specified in the Act constitute a valid reference point.

Both the TFV and the chamber have noted that implementing the reparations plan will require the cooperation of the Mali government, which has requested that particular ministries be involved in the program. Areas specified by the TFV include ensuring that no local taxes are imposed on reparations awards; providing a venue for training workshops; assisting the TFV to establish the Economic Resilience Facility; and facilitating administrative procedures, formalities and operational costs related to organizing the symbolic awards ceremony.

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