Abstract

In the International Criminal Court case of "The Prosecutor v. Ahmad Al Faqi Al Mahdi", neither the Prosecutor nor the Court addressed the issue of whether attacks on cultural heritage can be tried as crimes against humanity under Article 7 of the Rome Statute of the ICC, provided that they are part of a widespread or systematic attack against the civilian population and are committed with knowledge of such attack. Even though his actions were part of a wider persecutory plan against the civilian population, Al Mahdi was held responsible only for war crimes for the intentional destruction of historical buildings during the Islamist occupation of the Malian city of Timbuktu, between April 2012 and January 2013. This raises the question whether one should conclude that attacks on cultural heritage simply cannot be tried as crimes against humanity before the ICC. This paper argues that the "Al Mahdi" judgment does not prevent attacks on cultural property from being tried as crimes against humanity. An effective protection of cultural heritage is better achieved through an application of both crime categories of persecution, and that the categorization of certain attacks on cultural heritage as crimes against humanity may have practical implications for the selection and prioritization of cases by the Office of the Prosecutor.