Anthropological grounds

Since 1945, both UNESCO and anthropologists dealing with material culture have moved towards an increasingly embodied understanding of the relationship between people and things. UNESCO’s post war intellectual project started with education (“since wars begin in the minds of men”… then updated to the “minds of men and women”), but soon gathered momentum around World Heritage sites, then cultural landscapes and intangible cultural heritage all the way to the recognition of “Living World Treasures”, namely people recognized as having exceptional cultural knowledge that needs to be passed down to future generations.

These phenomenological and ontological readings of human experience have long intellectual pedigrees across time and traditions but, in UNESCO’s projects, were narrated and given a specificity that coalesced around an idea of “outstanding universal value” (OUV). With OUV and a unified idea of the human “mind” emerges a universalism that comes into constant tension with the relativism that is of particular interest to anthropologists. Instead of this universal reading of the human mind sucking the agency away from sites and objects towards the human actors that make and live within them, it has paradoxically highlighted the need to further understand the capacity of cultural heritage to act on people now and in the future, for example, the fact that art has distributed agencyFootnote ⁵ or that our understanding of nature and culture need perhaps to be reversed and that the natural or material world has a contingent ontological statusFootnote ⁶ or that cultural heritage is only ever considered valuable as a means of providing meaning for future human populationsFootnote ⁷ in an impulse to live beyond ourselves.

This global concern with the protection of heritage is enshrined through a series of conventions, ratified by diverse member states and invoked in the case of conflict or concern. UNESCO’s work (for example through its 1972 World Heritage Convention) can equally be made up of decisions to delist sites because of a perceived loss of OUV (eg, Liverpool: Maritime Mercantile City in 2021) as to put sites on a list of sites in danger.Footnote ⁸ Timbuktu was inscribed to the list of sites in danger in 1990, then received international assistance and was removed from the list in danger in 2005 only to be re-inscribed in 2012.Footnote ⁹ Sites are therefore at risk for many different reasons. Regarding Timbuktu, desertification and poverty were the early risks to the site, with the 2012 violence emerging as a new and particular threat.

UNESCO’s World Heritage framework provides a ready supply of heritage / value evaluations through its vast archive of documents relating to protected sites (candidature files, mission reports, management plans and so on) and these were the documents turned to during the Al Mahdi trial to illustrate the importance of the destroyed sites.Footnote ¹⁰ UNESCO’s project also relies on a reading across scale and relevance, as echoed in the ICC trial. Allais points out:

The destroyed sites in Timbuktu are therefore understood in a situational, relational way (in connection to the guardian families, the Sufi tradition and UNESCO’s previous efforts) just as Al Mahdi’s actions and the point of connection through destruction only make sense in a much broader reading of his biography: from local teacher to radicalized preacher (from false consciousness to convert). The whole logic of Al Mahdi is premised on the effects of the mediatization of the event (for both perpetrator and victims) which is not the situation in many other cases reaching the ICC. These other cases concern acts of violence that perpetrators would much rather conceal. In part, this is because their effect on victims is all immediately legible (on bodies, such as rape and torture) and therefore universally condemned.

Al Mahdi therefore provided a unique moment of reckoning with the meaning of materiality and victimhood, of non-human victims and the effects of the destruction of heritage. In this case, the destruction was of tombs of saints (mausoleums), the veneration of which are part of the long local tradition of Sufi Islam and considered the authentic way to worship by many in the local population. The accused, Al Mahdi, was part of this Sufi tradition by upbringing but chose a different path during the 2012 events, aligning with Ansar Dine and declaring the veneration as forbidden under higher Islamic teaching.Footnote ¹² Al Mahdi pleaded guilty to the crime of intentionally directing attacks against protected historic and religious buildings and in a much-publicized apology described his actions as a mistake, a bracketing off from his normal social self and his love for the population of Timbuktu, of which he is part.Footnote ¹³ His apology also recognized the logic of the court and the victims in the wider sense including Mali and the international community. At no point was his spiritual relationship with the mausoleums (and his reading of Islamic law) put forward as a defence that could invalidate the court’s claims. Al Mahdi did not plead an ontological misunderstanding and the destroyed mausoleums were necessarily seen as victims in and of themselves due to their OUV. In his apology, Al Mahdi stated: “All the charges brought against me are accurate and correct”.Footnote ¹⁴

A first anthropological critique of international bodies such as UNESCO and the ICC is that they are inevitably the intellectual legacy of a euro-centric, enlightenment project. The critique argues that the world is experienced in incommensurably different ways by different people at different times. If there is only one version of this world that is legitimized through global institutions, whoever the author of that version is, they will (whether intentionally or not) cause ontological harm to those who do not share in this version.

In this logic of radical incommensurability, the human experience, even the human body, cannot be universalized and “read” across cultures, religions and time.Footnote ¹⁵ Cultural heritage therefore, despite UNESCO’s insistence on concepts such as OUV, should always be understood as particularized and in relationship with human actors but also ancestors, other material culture, cultural landscapes, belief systems and so on.

In Al Mahdi, two different forms of radical alterity / incommensurability could have been drawn upon by the defendant to explain his actions. The first is that the version of Islam practised by Ansar Dine does not tolerate the worshipping of saints or any form of syncretism that puts material culture (amulets and so on) or elevates individuals, as it gets in the way of a true relationship between people and God.

This is a familiar concept and has been rehearsed throughout history and religions and is the subject of Latour’s Iconoclash, in which he explores why and how images and icons provoke such passions in those wanting to destroy them.Footnote ¹⁶ A second reading of the destruction in Timbuktu could be that the court misunderstood who the victims actually were by not considering the tombs of saints on their own terms, as victims in and of themselves, as the true targets of the destruction.

In Art and Agency, Gell puts forward a way of understanding art by placing it within the complex kinship system it was born into, and by examining it as the locus of distributed agency – the agency indexed in the object through the intention of its makers, consumers, referents and so on.Footnote ¹⁷ This approach suggests that objects (and by association cultural heritage) can and should be understood as having agency in their / its own right – as part of aesthetic or religious economies, as the distributed agency of artists or religious leaders, as evidence of the past or fragments of ancestors.

In the ICC’s practice, victims have been (almost) exclusively human agents. Therefore, Al Mahdi had as a focus the destruction of protected buildings, but as victims, the communities most closely linked to those buildings. Some communities, such as the Barey-Ton, the association of masons whose architectural expertise made and maintains the destroyed mausoleums and mosque, were not the primary focus for victimhood or reparations (including compensation). Instead, the Trust Fund for Victims gravitated towards the worshipers and custodian families, thus prioritizing the spiritual value over the creation of the buildings. Yet as Marchand notes in his ethnography of the Masons’ Association in Djenné (Timbuktu’s sister city), the masons possess a great deal of spiritual knowledge and techniques to ensure that the architecture they create fulfils its social and spiritual function.Footnote ¹⁸ Masons are linked for life to the buildings they create and it is their responsibility (or that of their descendent apprentices) to keep the buildings in good repair throughout the lifetime of the buildings. In later projects underwritten by UNESCO, the masons, their knowledge and training, became once again the focus of attention and the challenge of maintaining mud-brick buildings and monuments in difficult economic, climatic and political conditions was widely acknowledged.

The naming of the saints

An important dimension of the destroyed tombs in Timbuktu covered by Al Mahdi is that although the architecture of the buildings housing them was destroyed, the bodies lying below were not the target. As noted above, Al Mahdi declared from the beginning of the trial that there was no intention to destroy or disturb human remains, something that would have put the crime in a different register, one of outrage upon personal dignity under the text of the ICC Elements of Crimes which is applicable law by the ICC and fleshes out the definitions of the crimes contained in the ICC Statute (articles 9 and 21(1)(a)): “Article 8 (2) (b) (xxi) War crime of outrages upon personal dignity – footnote 49 – For this crime, ‘persons’ can include dead persons. It is understood that the victim need not personally be aware of the existence of the humiliation or degradation or other violation. This element takes into account relevant aspects of the cultural background of the victim”.

Nevertheless, article 8(2)(b)(xxi) is inapplicable to the present case because such provision applies only to international armed conflicts: Al Mahdi concerns a non-international armed conflict. In any event, the destroyed tombs of saints were not nameless targets, their identities were referred to throughout the ICC case with conceptual distance achieved by prefacing the names with the words “the mausoleum of” which has the effect of reducing the identification to the likes of street names or labels, away from the fact that human remains lay below:

In the case of the destroyed tombs of saints in Timbuktu we can therefore trace multiple biographies and distributed agencies: that of the saint (and the imam at the time who recognized him as such), the custodian family and their descendants, the masons who made and maintain the tomb, the worshippers and the wider participants in the prayer economy of Timbuktu. Timbuktu is known as the “city of 333 saints” and is a focus of pilgrimage and a potent location for the creation of amulets and other protective material culture.Footnote ²⁰ The destroyed tombs were however not presented to the ICC as materialization of individual saints’ biographies, they were depersonalized and presented as global heritage.

UNESCO’s recognition of Timbuktu’s OUV is therefore secondary, coming as it did in 1988 and drawing its conclusion from the long history of the city and its creation and recreation over time. Timbuktu’s protected buildings are saturated with the meaning they both index but also provoke in those who worship, build, re-mud or simply walk past them. They are also meaningful for those beyond the city, for example the businessmen in the capital Bamako, who pay marabouts in Timbuktu to pray on their behalf. They are meaningful for the heritage communities across Mali, West Africa, at UNESCO in Paris and beyond for which the shrines and Mosque are punctuation of value, a material example of the epitome of skill and thinking and negotiating your place in the world.

Another way of thinking about the events in Timbuktu is suggested by Ba who examines the destructions as part of a wider regime of “governing”:

This consideration of governmentality, echoed in Clarke’s work Fictions of Justice,Footnote ²² moves away from the individual (body) or shrine as a universally understood subject towards the relativity of certain ideological landscapes in which humans, non-humans, shrines and symbols are brought into question in the name of a radically different ontology. Here, the ICC’s authority is undone by the call to a higher, non-human (religious) scale of governmentality and the time is collapsed beyond human timespans.

Two things are of note in response to these critiques. First, UNESCO’s World Heritage project is also a call to the future beyond any one individual’s lifespan, and in this way, it shares some of the same ontological claims as other belief systems through its concept of “OUV” and the claim of knowing what future generations will need to flourish. The second response concerns the claim that the attacks in Al Mahdi were less against individual monuments and more an attempt to impose a landscape of governmentality that the monuments undermined.

Who was the victim?

In Al Mahdi, the TC-VIII determined that “cultural heritage is important not only in itself, but also in relation to its human dimension”.Footnote ²³ In the judgment, it found that the destruction of the Timbuktu sites “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”.Footnote ²⁴ Moreover, the TC-VIII in the Al Mahdi reparation order determined that the reparation beneficiaries are the community of Timbuktu (individually and collectively), people throughout Mali and the international community.Footnote ²⁵ These jurisprudential developments have been examined by scholars who have acknowledged related challenges and have expressed diverse degrees of (dis-)agreement with the case law.Footnote ²⁶ The ICC was established primarily to protect people against international crimes (genocide, crimes against humanity and war crimes). Often, people are the living, embodied victims of crimes, able to give an account of their experiences and act as witnesses to their own suffering. In the case of destroyed cultural heritage in Timbuktu, the destruction was documented and accounted for by witnesses and experts, using oral testimonies or photographic or satellite images to demonstrate the extent of destruction to the court. Witnesses here may speak of their own moral distress and may eventually be identified as the victims of the attacks by the Trust Fund for Victims, but at the early stage in proceedings, these interlocutors were first called upon to be witnesses, and also sometimes belonged to a category of expert witnesses: religious practitioners, journalists, archaeologists and so on. A person could therefore have a tripartite relationship with the court and embody different forms of relationship towards the crime: (1) victim, (2) witness, (3) expert, and sometimes all three at once.

In the Al Mahdi trial, there was an attempt at a clear distinction between “victims” (persons) and “protected buildings”.Footnote ²⁷ This Cartesian reading of the world was reflected in mainstream media such as the journalist who criticized the case by stating that “we should remember what The Hague is for: preventing the mass murder of humans” and that “culture can be renewed, remade, reinvented. Human life cannot”.Footnote ²⁸

If culture can always be renewed, remade and reinvented, the destroyed mausoleums of Timbuktu are fundamentally reduced to their constituent parts – the mud and wood and metal from which they were fashioned, with the human remains below left intact, a point that was forcibly made by Al Mahdi’s legal representative during the trial:

The argument here was that far from an act of vandalism, the destruction was an act of liberation from false consciousness. Through the intentional destruction of the Timbuktu religious and historic monuments, Al Mahdi and the other Ansar Dine members arguably meant to send a strong message to both the locals and the international community.

Materially, the tombs were rebuilt by the masons of Timbuktu and in this way remain a central part of the traditional religious life of the city. However, the destruction of the mausoleums was intended to send a message to the religious communities of Timbuktu, that their form of worship was haram (forbidden) – and it was through the reducing of the tombs to its constituent material parts (mud, wood, metal) that harm was done, the religious sanctity of the sites violated to prove a theological point.

Alongside other authors,Footnote ³⁰ Allais suggests that during the trial both Al Mahdi and the international community (represented by the ICC and UNESCO’s interests) had to deploy a number of “amplifying” techniques to move beyond the particularity of the tombs (surface) to place Timbuktu in a new category (global): “an analysis of the practices that authenticate Timbuktu as an international treasure – both in court and in ongoing preservation – reveal the techniques of amplification that are embedded into the built environment to hold together an agreement, on both sides of the law, that the target of this new criminality is humanity itself”.Footnote ³¹

In other work, Allais suggests that it is through ongoing acts of bureaucratic management that value is ascribed and remains with certain sites, weaving bureaucracy and diplomacy to create consensus.Footnote ³² This common ground is identified by Allais as the reason for pickaxes being chosen as the weapons of destruction in some cases in Timbuktu in 2012 (as opposed to bulldozers in others). The act of attack and its mediatization was as important as the destruction itself and pickaxes, she seems to imply, are appropriate and “to-scale” (maybe in particular given the hand-made nature of the monuments) in a moment of global reckoning.Footnote ³³

Against such a background, this paper questions whether the historic monuments and religious buildings attacked and destroyed in Timbuktu should also be per se considered victims in cases such as Al Mahdi. If the court is to accept the logic of the potential to restore the monuments to their former materiality, the harm of their destruction is hard to prove. If, on the other hand, the monuments per se are considered the victims, their destruction becomes the focus of the trial and the only bar to clear in arguing for a guilty verdict.

In the following sections, attention turns to the relevant legal elements of the specific crime committed in Al Mahdi, the legal definitions and categories of victims under mainly the ICC’s law and jurisprudence and some socio-legal considerations. Then, general conclusions are provided.

The crime committed

To revisit the scope of victimhood and better delimit the categories of victims in Al Mahdi, attention should be first drawn to the crime committed: the war crime of “Intentionally directing attacks against buildings dedicated to religion … historic monuments … provided they are not military objectives” (ICC Statute, article 8(2)(e)(iv)). Furthermore, article 8(2)(e)(iv)(2) and (3) of the text of the Elements of Crimes respectively lay down that “The object of the attack was one or more buildings dedicated to religion … historic monuments … which were not military objectives” and “The perpetrator intended such building or buildings dedicated to religion … historic monuments, … which were not military objectives, to be the object of the attack”.

What these normative provisions hence seek to protect are historic monuments or religious buildings rather than persons. The ICC in Al Mahdi did not (explicitly) list the mausoleums and the mosque destroyed in Timbuktu as such as victims of the war crime in question. In applying those normative provisions, however, the TC-VIII in Al Mahdi actually determined, inter alia, that “The Statute protects persons and cultural objects … are protected as such”Footnote ³⁴ as well as that:

Legal scholars commenting on the typology of war crimes in the ICC Statute, and international criminal law in general, have also referred to the existence of attacks against protected objects such as religious buildings and historic monuments as an autonomous category of war crimes.Footnote ³⁶ Thus, the ICC should have (better) connected its normative analysis of the legal elements of the war crime of an attack against religious buildings and historic monuments committed in Al Mahdi with the scope and types of victimhood.

The ICC Statute’s normative provision on intentional attacks against religious buildings and historic monuments criminalizes the respective normative prohibitions that have been long contained in international humanitarian law (IHL). IHL seeks to restrict the conduct of hostilities (means and methods of warfare) as well as protect individuals and certain objects (victims) in connection with armed conflicts.Footnote ³⁷ As the TC-VIII in Al Mahdi explicitly and in detail established,Footnote ³⁸ treaty IHL has long provided special protection of historic and religious buildings, including: i) the 1907 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (articles 27 and 56); ii) the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict (article 4); iii) the 1977 Protocol Additional to the 1949 Geneva Conventions, and relating to the Protection of Victims of International Armed Conflicts (article 53); iv) the 1977 Protocol Additional to the 1949 Geneva Conventions, and relating to the Protection of Victims of Non-International Armed Conflicts (article 16) and v) the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (article 15). Under customary IHL, historic monuments and religious buildings are also protected during war times.Footnote ³⁹

While the TC-VIII in Al Mahdi correctly acknowledged that IHL “protects cultural objects as such from crimes committed both in battle and out of it”, the Chamber also remarked that “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”.Footnote ⁴⁰ Indeed, it noted that, unlike other accused convicted by the ICC, Al Mahdi was “not charged with crimes against persons but with a crime against property. In the view of the Chamber, even if inherently grave, crimes against property are generally of lesser gravity than crimes against persons”.Footnote ⁴¹ Even if this sort of “hierarchy” of international crimes is accepted, historic monuments and religious buildings as such are and should be protected regardless of any effects on humans. It should indeed be taken into account the special place that historic and religious buildings hold within the wide array of non-human entities, in particular other types of buildings, in the context of atrocity crimes. For instance, while the destruction of historic and religious buildings does not per se constitute genocide, international case lawFootnote ⁴² and scholarshipFootnote ⁴³ have continuously asserted that the intentional destruction of buildings such as (ancient) mosques and churches can substantially contribute towards proving the existence of genocidal intent. Among other considerations, this arguably merits the recognition of the sui generis status or nature of historic and religious buildings as (potential) victims within non-human entities / edifications.

The above-detailed considerations should have been better reflected in the categories of victims identified by the ICC in Al Mahdi. Similar to national criminal law, the law applicable at the ICC is not limited to the criminalization of the prohibition of unlawful attacks against persons. As an additional example, article 8(2)(b)(iv) of the ICC Statute criminalizes the war crime of an intentional attack that causes “widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”. This provision protects the environment as such during armed conflicts, without requiring a negative impact on humans. A logical extension of this debate is whether “ecocide” should be incorporated into the ICC Statute, the environment as such will be protected also during “peace” times.Footnote ⁴⁴ The consideration of the environment as a victim under article 8(2)(b)(iv) as a corollary to non-human entities as victims may actually be illustrated by the ICC Office of the Prosecutor (OTP)’s references to “non-human victims” in its Draft Policy on Environmental Crimes under the Rome Statute.Footnote ⁴⁵

It should be noticed that the language of article 8(2)(b)(iv) indeed draws directly from that of article 51(5)(b) of the Additional Protocol I to the Geneva Convention: the main difference being the addition of specific wording on environmental damage. The fact that article 51(5(b) is entitled “Protection of the Civilian Population” would seemingly imply that there is some anthropocentric connection to the harms discussed. In any event, article 8(2)(b)(iv) also reflects article 35(3) of the Additional Protocol I which establishes that “It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment”.Footnote ⁴⁶ That is why article 8(2)(b)(iv) has been regarded as introducing an ecocentric war crime.Footnote ⁴⁷

An underlying element that explains the ICC’s (partial) mismatch between the crime committed and the scope of victimhood in Al Mahdi is arguably that the ICC’s nature and mandate as a criminal court rather than a human rights court was not fully understood or implemented by the actors involved in the proceedings, including the ICC Trial and Appeal Chambers. By analysing the crime committed in Al Mahdi, it can be argued that the ICC, like mutatis mutandis national criminal courts, handles cases that involve attacks against and destruction of non-human entities because (international) criminal law is not confined to protecting humans. While it can be questioned that the destruction of non-human entities automatically results in assigning victim-status to the respective entity before courts, the very specific nature and characteristics of religious and historic buildings that set them apart from other categories buildings as indicated earlier should be taken into account. In turn, this must inform the categories of victimhood of the respective criminal cases in which historic and religious buildings have been intentionally targeted and destroyed.

Legal definition and categories of victims

The TC-VIII in neither the judgment / sentence nor the reparation decision in Al Mahdi explicitly recognized the destroyed Timbuktu mausoleums and mosque as such to be direct victims of the war crime of attacks against historic monuments and religious buildings. The Chamber’s approach was overall consistent with the normative provisions contained in the ICC Rules of Procedure and Evidence (Rules), which are part of the applicable ICC law. Rule 85 (“Definition of victims”) considers two categories of victims at the ICC:

Thus, rule 85 defines victims as either natural persons (rule 85(a)) or institutions or organizations that have sustained damage to their property (rule 85(b)). This means that, lege lata [as the law exists], it is very complicated to expand the quoted definition to include historic and religious monuments as victims per se under the ICC Rules and, by extension, the law of the ICC. That is why, as indicated in the introduction, the legal argumentation for the consideration of historic and religious monuments as victims themselves primarily concerns lege ferenda legal grounds: what the law and practice of the ICC should be. This lege ferenda argumentation could provide some considerations for a potential amendment of rule 85.

During the Al Mahdi trial, the Chamber originally rejected three applications from organizations because it found that there was no proof that the buildings invoked were organizations or institutions within the meaning of rule 85(b) and that the individuals who submitted the applications had the capacity to represent the organizations / institutions.Footnote ⁴⁸ Conversely, the Chamber considered that the applications suggested that the applicants endeavoured to apply as individuals rather than as acting on behalf of organizations / institutions and, thus, it assessed the applications under rule 85(a) (human victims) rather than rule 85(b) (organizations / institutions); however, it added that this was without prejudice of new applications by individuals acting on behalf of the organizations / institutions.Footnote ⁴⁹ Later in the proceedings, applicants were finally admitted as acting on behalf of five organizations / institutions based on the fact that the quality of the organization, the individual’s capacity acting on its behalf and his / her identity were clearly established; however, information on these organizations and their representatives is non-public and they are referred to by code numbers.Footnote ⁵⁰ It was only indicated that “the organisation suffered a direct harm as a result of the destruction of the mausoleum … to the extent that the buildings [REDACTED] were destroyed”.Footnote ⁵¹ Nevertheless, the judgment / sentence and reparation order, which are the most important decisions in general and for victimhood in Al Mahdi, did not explicitly list the Timbuktu mausoleums and mosque themselves as victims. In any event, it is acknowledged herein that, since the decisions concerning organizations that seemingly had applied as victims are not public, it is difficult to exactly precise how and to what extent the level of success of those applications impacted the Chamber’s decision of not naming the buildings as victims.

Furthermore, the TC-VIII in the Al Mahdi judgment / sentence and the reparation order referred to the “faithful and inhabitants of Timbuktu” as “direct victims” of the destruction of the Timbuktu sites and it added that such destruction also affected “people throughout Mali and the international community”.Footnote ⁵² Thus, the Chamber explicitly considered that Timbuktu’s faithful and inhabitants are the direct victims of the war crime of the attack against the Timbuktu sites, and it implied that other Malians would be indirect victims.

Lege ferenda, we argue that the ICC rule 85 and the TC-VIII’s categorization of victimhood in Al Mahdi are open to criticism. Based on the anthropological arguments presented in the previous sections, it can be argued that (i) the direct victims of intentional attacks on historic monuments and religious buildings are primarily the sites themselves and / or (ii) these monuments should be considered direct victims in addition to a number of directly affected individuals. On this basis, the TC-VIII in Al Mahdi should have obiter dicta considered the attacked sites of Timbuktu either as the ultimate direct victims or (alternatively) as direct victims along with “the faithful and inhabitants of Timbuktu”. Below, we show that there are also strong lege ferenda legal arguments for extending the notion of victimhood to include historic monuments and religious buildings.

First, the TC-VIII’s categorization of victimhood in Al Mahdi is partially inconsistent with the underlying logic of the ICC’s well-established jurisprudence concerning humans only and its potential analogical application to cases also involving non-human entities. In Lubanga, the ICC had clearly defined direct victims as “those whose harm is the ‘result of the commission of a crime within the jurisdiction of the Court’” and indirect victims as “those who suffer harm as a result of the harm suffered by direct victims”.Footnote ⁵³ These definitions had been previously applied to crimes against individual persons: namely, for example, in Lubanga, the direct / indirect victim categories have been applied but only concerning human victims. Thus, concerning the war crimes of conscription, enlistment or the use of children in direct hostilities, child soldiers were “direct” victims, and their parents were “indirect victims”.Footnote ⁵⁴

However, the potential analogical application of the direct / indirect victim categories in crimes involving non-human entities may lege ferenda be, inter alia, justified by the fact that the ICC is not only an international judiciary body but also a criminal court, about which the argumentation developed in the previous section (“The crime committed”) may be particularly useful. Thus, as explained, Al Mahdi involved the war crime of “Intentionally directing attacks against buildings dedicated to religion … historic monuments …” (ICC Statute, article 8(2)(e)(iv)), which article 8(2)(e)(iv)(2) and (3) of the text of the Elements of Crimes further detail: “The object of the attack was one or more buildings dedicated to religion … historic monuments …” and “The perpetrator intended such building or buildings dedicated to religion … historic monuments, …, to be the object of the attack”. Indeed, as also indicated, the TC-VIII in Al Mahdi found that “The Statute protects persons and cultural objects … are protected as such”Footnote ⁵⁵ and “This reflects the special status of religious, cultural, historical and similar objects”.Footnote ⁵⁶ Moreover, international (criminal) law scholarship has referred to attacks against protected objects like religious buildings and historic monuments as an autonomous category of war crimes.Footnote ⁵⁷ Furthermore, the ICC OTP has referred to “non-human victims” in the context of environmental crimes.Footnote ⁵⁸ This is mutatis mutandis similar to war crimes against historic and religious buildings in the sense that non-human entities are the object of the attack. Unlike most war crimes, these environmental war crimes and war crimes of attacks against historic and religious buildings originally or primarily target non-human entities rather than humans themselves. This may certainly impact the scope and categorization of victimhood.

While the ICC did not recognize victimhood to the protected buildings as such, it ordered reparations for their direct benefit in the form of rehabilitation and maintenance. Thus, it may be questioned what would have been an added value of categorizing them as proper victims given that they benefited from reparations nonetheless. A potential answer is that such an explicit recognition, at least through some said in passing analysis, would have arguably led to better jurisprudentially connections between, on the one hand, the legal elements of the war crime of an attack against religious buildings and historic monuments, and, on the other one, the complex victimhood dimensions in Al Mahdi.

As to why the definitions of direct and indirect victims from Lubanga should have been applied in Al Mahdi and the lack of binding precedent at the ICC, while the fact that an ICC trial chamber has reached a particular conclusion does not mean others are bound to do so as well, article 21(2) (“Applicable Law”) of the ICC Statute establishes that: “The Court may apply principles and rules of law as interpreted in its previous decisions”. This provision actually contrasts with article 59 of the Statute of the International Court of Justice, which lays down that “the decision of the Court has no binding force except between the parties and in respect of that particular case”. Moreover, as Schabas importantly notes: i) it is arguably not a wise approach for an ICC Chamber to neglect previous ICC case law and ii) the ICC’s practice shows that “There are many examples of the Court following earlier decisions”.Footnote ⁵⁹

Thus, the above-mentioned categories and definitions lege ferenda should have been mutatis mutandis applied in Al Mahdi, at least through obiter dicta explicit findings. In other cases at the ICC and other supranational courts that involved direct and indirect victims, direct victims were humans. However, it is still arguably possible to proceed analogically with the application of the categories of direct and indirect victims in cases such as Al Mahdi. This is because the said typology of victimhood has been thought to be of general application rather than only restricted to human victims: of course, this is subject to adaptations rather than plain rejection when primary or direct victims are or include historic and religious buildings. Thus, lege ferenda, while the attacked and destroyed Timbuktu mausoleums and mosque should also be considered “direct” victims, the “faithful and inhabitants of Timbuktu” could be regarded as “indirect” victims. Some Timbuktu inhabitants who were particularly affected, namely the descendants of the “saints” whose mausoleums were destroyed and those locals whose livelihood (almost) entirely depended on Timbuktu-related activities (mainly tourism) could also be considered as “direct” victims.

The previous lege ferenda consideration of the attacked Timbuktu sites as, additionally, “direct” victims and the others as “indirect” victims is also arguably consistent with the ICC’s previous jurisprudence where the Appeals Chamber illustratively indicated these examples of “indirect” victims: direct victims’ family members, those who attempted to prevent the commission of the crime(s) under consideration, those who suffered harm when helping or intervening on behalf of direct victims and individuals who endured personal harm as a result of the crime(s) in question.Footnote ⁶⁰ Hence, those persons throughout Mali (outside Timbuktu) personally affected by the attacks are arguably “indirect” victims. In turn, the consideration of the “international community” as a victim in Al Mahdi is redundant or already implicit. By their very nature and definition, all international crimes – not only the war crime of attacks against cultural sites that are part of the UNESCO’s world heritage list – are and should be considered as seriously affecting both the international community as a whole and the basic values that it stands for.Footnote ⁶¹

Second, the above-examined categorization of “direct” and “indirect” victims is also consistent with the jurisprudence of other supranational courts dealing with atrocities. In construing its jurisprudence on victimhood, the ICC relied on, inter alia, jurisprudence of the European Court of Human Rights (ECtHR) and, especially, that of the Inter-American Court of Human Rights (IACtHR). In cases involving extrajudicial executions and / or forced disappearance of persons, the IACtHRFootnote ⁶² and the ECtHRFootnote ⁶³ have found that while the abducted or executed person is the “direct” victim, his / her next of kin are “indirect” victims. In cases related to natural sites (mountains, forests or rivers) as places of worship, the IACtHR did not consider them as such to be victims.Footnote ⁶⁴ However, this corresponded to the different nature and mandate of the IACtHR, which is a human rights court, as opposed to the ICC, which is a criminal court. Such an important difference means that, inter alia, while the IACtHR identifies victims of human rights violations, the ICC recognizes victims of international crimes. Moreover, the IACtHR as a human rights court can only find state responsibility for violations of human rights. This means that the IACtHR lacks jurisdiction to find, sensu stricto, state responsibility for violations of international law protecting historic and religious buildings. This is a key difference with the ICC, which has jurisdiction to determine individual criminal liability for the said violations in contexts of armed conflicts.

Although gross violations of human rights and humanitarian law are generally constitutive of international crimes, these two categories are legally speaking autonomous. This is noted because the TC-VIII in Al Mahdi invoked jurisprudence from the IACtHR to refer to moral harm related to the disruption of culture.Footnote ⁶⁵ Nevertheless, the non-explicit reference to the Timbuktu sites as direct victims in Al Mahdi seems to indicate that the Chamber, which was restricted by the relatively constrained victim definition contained in ICC rule 85, adopted an anthropocentric approach to victimhood, extrapolating mechanically rather than properly adapting such human rights jurisprudence to the specificity of both Al Mahdi and the ICC’s mandate. It should be also added that the most recent jurisprudence of the IACtHR has innovatively combined anthropocentric and eco-centric approaches to protect rights in environmental cases, which has led to the recognition of nature itself as a potential victim despite the human rights mandate of this regional court.Footnote ⁶⁶ Such pivotal jurisprudential development has been welcomed by several commentators.Footnote ⁶⁷

In turn, these categories of direct / indirect victims and references to the jurisprudence of the IACtHR and ECtHR have been invoked by hybrid criminal tribunals where victims can participate and / or claim reparations. These tribunals are the Extraordinary Chambers in the Courts of Cambodia (ECCC),Footnote ⁶⁸ the Special Tribunal for LebanonFootnote ⁶⁹ and the Extraordinary African Chambers in the Senegalese courts.Footnote ⁷⁰ Under the ECCC Internal Rules, “victims” are “a natural person or legal entity that has suffered harm as a result of the commission of any crime within the jurisdiction of the ECCC”.Footnote ⁷¹ It is true that the ICC does not need to rely on the jurisprudence of other international courts because such case law lacks force on the ICC. Nonetheless, as Schabas notes based on the ICC’s practice, the ICC cannot be “depriv[ed] … of the authority to consider principles and rules of law derived from the case law of other judicial bodies. There are too many examples of references to the case law of the ad hoc tribunals and human rights courts”.Footnote ⁷² Therefore, lege ferenda and (mainly) through obiter dicta findings, the category of “direct” victims in Al Mahdi should have explicitly and clearly included or corresponded to the attacked Timbuktu mausoleums and mosque, for victim participation in the proceedings and as reparation beneficiaries. Although the TC-VIII formally authorized certain organizations (their names are confidential information) related to the Timbuktu sites to participate through their representatives as victim participants in the Al Mahdi trial, victim participation during this trial in practice was (virtually) only focused on natural persons (Timbuktu inhabitants). Moreover, in the post-conviction reparation stage, the Timbuktu sites as such were not explicitly listed as reparation beneficiaries.

The guild or association of masons that have for generations taken care of the maintenance of the Timbuktu sites and participated in their re-constructionFootnote ⁷³ and / or the Mission Culturelle de Tombouctou (attached to the Direction Nationale du Patrimoine Culturel) that exercises “guardianship” over or legal representation of, inter alia, the attacked Timbuktu sites should have been explicitly listed as reparation beneficiaries.Footnote ⁷⁴ While these groups had the right, under rule 85(b), to be confirmed as victims and then seek reparations, it seems that the Al Mahdireparation orders (both at the trial and appeals levels) did not explicitly and / or in detail indicate or flesh out exactly what reparation measures were specifically granted to the above-mentioned associations and organizations.

Hence, in applying ICC rule 85, Al Mahdi may show that there is some reluctance to or scepticism about considering historic and religious buildings and monuments also as (potentially) victims themselves when they have been intentionally attacked and destroyed. As discussed earlier, this stand arguably corresponds to (almost) exclusively anthropocentric approaches to international criminal justice as well as the non-recognition of the sui generis or exceptional nature of the said buildings and monuments that set them apart from other types of edifications.

Socio-legal considerations

The ICC’s anthropocentric focus in Al Mahdi has narrowed the scope of the protection granted to tangible cultural heritage.Footnote ⁷⁵ Such an approach may set a precedent in the sense of neglecting situations of destruction of tangible cultural heritage that do not affect the cultural or social practices of a specific population such as the destruction of the Buddhas of Bamiyan in Afghanistan in 2001.Footnote ⁷⁶ As for the war crime against cultural heritage, making the effects on or consequences for the locals a requirement of the gravity threshold that is assessed to trigger the ICC’s jurisdiction may likely mean the exclusion of certain cultural sites from the ICC’s docket, including those protected under international law.Footnote ⁷⁷ The destruction of cultural heritage normally seeks to erase the cultural heritage of a population; however, such destruction may also take place due to reasons not related to the identity of a population and / or to the desire to rewrite history such as the case in Syria, when armed forces bombarded the World Heritage site of the medieval fortress of Crac des Chevaliers (July 2013) in its attempts to reconquer the city of Homs.Footnote ⁷⁸ Due to the fact that Al Mahdi altogether excluded charges involving attacks against humans as such, some scholars have noted that it has been referred to as a “victimless” case.Footnote ⁷⁹ Such labelling may plausibly reflect an anthropocentric approach to the attacks against cultural heritage and requires further consideration since Al Mahdi is so far the only precedent for cases concerning only crimes against cultural heritage (rather than persons) and even for cases involving other kinds of property or the environment.

Situating Al Mahdi in the transitional justice (TJ) context is also important. While TJ involves diverse justice mechanisms in post-armed conflictsFootnote ⁸⁰ and it has focused on truth commissions, reparations and trials,Footnote ⁸¹ the role of monuments and reconstruction thereof in TJ scenarios have received limited attention. Yet, the reconstruction of tangible cultural heritage is a manner of telling history and healing, enabling actors to reconcile, and can work alongside other TJ mechanisms.Footnote ⁸² Tangible cultural heritage can play an important role in transition,Footnote ⁸³ and is linked to the rights to the truth and heritage.Footnote ⁸⁴ There is a relationship between the reconstruction of cultural heritage and the reconstruction of the society affected by conflicts.Footnote ⁸⁵ The prevention of future conflicts, long-term peace, human rights protection and accountability can overlap and mutually reinforce each other concerning the role of cultural heritage through the right to the truth, memorialization and reconstruction of cultural heritage (including reparations).Footnote ⁸⁶ Post-conflict reconstruction of cultural heritage may have a pivotal role in transition since it is useful to narrate identity and history.Footnote ⁸⁷

The Timbuktu sites are an essential element of Timbuktu’s collective memory and their destruction catastrophically impacted the local population’s identity regardless of the recognition of the destroyed tangible cultural heritage as part of the world’s cultural heritage.Footnote ⁸⁸ In Al Mahdi, the ICC neglected the destroyed Timbuktu mausoleums and mosque as victims, particularly as reparation beneficiaries. It focused on the Timbuktu inhabitants as victims probably because of a feared backlash for a trial that only considered the destruction of heritage.Footnote ⁸⁹

There is, however, a need to engage with memorialization of the conflict via construction of memorials in the (re)-construction of national historical narratives.Footnote ⁹⁰ This includes recognizing the importance of the re-construction of the Timbuktu monuments in Mali’s TJ process, namely, the recognition of these monuments (represented by local associations and / or domestic authorities) as victims themselves. While assigning victim status to religious and historic monuments usually requires mediation through human agents such as the local associations related to the maintenance of Timbuktu, such an element arguably does not deny the possibility of recognizing at least some level of victimhood to these very specific kind of buildings when destroyed intentionally in light of non-anthropocentric perspectives and the unique features of these monuments vis-à-vis other types of buildings. Although the cultural property in Al Mahdi is protected to benefit persons, such protection preserves invaluable heritage and identity related to protected sites.Footnote ⁹¹

Finally, certain interdisciplinary legal studies consider the role of emotion and affect in legal proceedings.Footnote ⁹² Anthropologists acknowledge that attributing personhood to non-human entities has key effects,Footnote ⁹³ including the anthropology of ontologiesFootnote ⁹⁴ and actor-network theory.Footnote ⁹⁵

Sentimentalizing non-human bodies such as the destroyed Timbuktu monuments involves emotion attribution, emotionalizing metaphor and positioning of such bodies, namely that the attacked Timbuktu sites can be seen as bodies close and similar to humans.Footnote ⁹⁶ The sentimentalization of non-human bodies as a process of legal meaning-making leads to the consideration of their destruction as so grave that it constitutes international crimes.Footnote ⁹⁷