Discussion Interrupted: The Destruction and Protection of Cultural Property under International Law and Islamic Law - the Case of Prosecutor v. Al Mahdi

Al Mahdi was the first case before the International Criminal Court (ICC) which focused on the destruction of cultural property, and indeed, the first case before an international criminal tribunal which had the destruction of cultural property as the sole charge against a jihadist. Despite the many legal sources which seek to regulate attacks on cultural property, the exact contours of the offence are unclear, especially with regard to the rationales for protection and prosecution. Some international instruments seek to prohibit attacks on cultural property because such property constitutes civilian property, while other instruments highlight the need to protect cultural property as a result of its importance to humanity. In addition, the case of Al Mahdi also opened up the issue of justifications for attacks on cultural property as Al Mahdi was a member of the Hisbah, or ‘morality brigade’ in Timbuktu, which had justified the attacks in accordance with Islamic law. In this context, the question arises if membership of the Hisbah could have been seen as a justification for the attacks on cultural property in Mali? This case note first addresses the international legal framework on the protection of cultural property in Section 2. Section 3 then assesses the concept of Hisbah and its operation, including the reasons why the Hisbah group in Mali destroyed cultural property. The next section considers the facts of the Al Mahdi case. Section 5 highlights the shortfalls in the Trial Chamber’s consideration of the rationales for the protection and destruction of cultural property, before the note concludes in Section 6.