In September 2016 the ICC Pre-Trial Chamber I found Ahmad al-Faqi Al Mahdi guilty, as a co-perpetrator of the war crime of intentionally directing attacks against historic monuments and buildings dedicated to religion in Timbuktu, Mali, in 2012. On 17 August 2017, Trial Chamber VIII (the Court) delivered an milestone order on reparations in this case awarding – for the first time – reparations to victims of crimes against cultural heritage. The Court has placed at the centre of its legal analysis the victims of the crimes committed by Al Mahdi.

The author of this article argues that the reparations awarded have an innovative character which are i) identification of relevant victims; ii) prioritization of reparations for individuals; and iii) the challenges in implementing guarantees of non-repetition.

Ad i. The identification of the relevant victims

The Court identified three distinct groups of relevant victims: the inhabitants of Timbuktu, the people throughout Mali, and the international community. By including the latter two the Court showed that it was well aware of the fact that the destruction of cultural heritage erases part of the tangible and intangible heritage of all humankind.

Ad ii. The prioritization of individual reparations

The Court awarded both collective and individual reparations. It went as far as asking the Trust Fund for Victims (TVF) to prioritize the latter over the former in implementing the award. It argued that it is equitable to use individual reparations to compensate victims ‘on the basis of the extent of the harm suffered or sacrifice made, rather than solely on whether a victim had applied for reparations’. This request, however, sits uneasy with the TFV’s general view that its two main tasks (funding the assistance mandate and complementing collective and organizational awards for reparations) take priority over complementing individual awards for reparations. The author wonders what will happen to the victims if the TVF does not find itself in the position to complement and prioritise the payments for individual reparations.

C. The challenge to implement guarantees of non-repetition

Uniquely the order on reparations includes guarantees of non-repetition of war crimes against cultural heritage. It will be interesting to see how the TVF will frame specific reparation measures that can materialize in such non-repetition guarantees. The author expects that both the Court and the TVF will be looking at the case law of the Inter American Court of Human Rights which is familiar with this type of redress.

NB: The Legal Representative of victims in this case appealed the reparations order. In 2018 the ICC Appeals Chamber upheld, for the most extent, the Pre-Trial Chamber’s reparations order.