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International Law

Liability for Destruction of Cultural Property in International Criminal Law: Reading the Al Mahdi Reparations Ruling

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17th August, 2017 will go down in history as a momentous day in Transitional Justice. On this day Trial Chamber VIII of the International Criminal Court (ICC) issued a reparations order in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi holding Mali Isalmist militant Al Mahdi liable for 2.7 million euros in expenses for individual and collective reparations for destruction of cultural property in Timbuktu, Mali, the second time in the history of the Court where orders for reparations have been made, the first being in Germain Katanga’s case.

Background

Al Mahdi was convicted of war crimes on 27th September, 2016 following an admission of guilt by Trial Chamber VIII, composed of Presiding Judge Raul C. Pangalangan, Judge Antoine Kesia-Mbe Mindua and Judge Bertram Schmitt. The war crimes pertained to attacking 10 protected objects as co-perpetrator under Articles 8 (2) (e) (iv) and 25 (3) (a) of the Statute. The 10 projected objects were the mausoleum Sidi Mahmoud Ben Omar Mohamed Aquit, mausoleum Sheikh Mohamed Mahmoud Al Arawani, mausoleum Sheikh Sidi Mokhtar Ben Sidi Muhammad Ben Sheikh Alkabir, mausoleum Alpha Moya, mausoleum Sheikh Sidi Ahmed Ben Amar Arragadi, mausoleum Sheikh Muhammad El Micky, mausoleum Cheick Abdoul Kassim Attouaty, mausoleum Ahamed Fulane, mausoleum Bahaber Babadié, and the Sidi Yahia mosque.​

The attacks which took place between 30th June 2012 and 10th July 2012 resulted in a nine year prison sentence for Mahdi that was delivered by the Court in September 2016. Pursuant to the conviction, the Chamber initiated a reparations phase calender and granted applications by the UNESCO and other amici curiae to file submissions on reparations related issues. Additionally, general submissions on the reparations from the Trust Fund for Victims (TFV), Legal representative of Victims (LRV), defence, Office of the Prosecutor (OTP), Registry and Malian authorities were invited. This process set in motion the reparations process. A total of 139 reparations applications were submitted by the LRV claiming both collective and individual reparations.

Applicable Law

Article 75 (1) of the Rome Statute provides that the Court shall establish principles relating to reparations of victims including restitution, compensation and rehabilitation. On this basis the Court is competent to determine the scope and extent of any damage, loss and injury to victims.  In addition, the UN Basic Principles of Justice for Victims of Crime and Abuse of Power and the UN Basic Principles on Reparations for Victims complement Article 75 to establish principles relating to reparations.

Reparations in the present case, according to the Court, ought to be designed  to relieve the suffering caused by the serious crime committed, addressing the consequences of the wrongful act committed by Al Mahdi, enabling the victims to recover their dignity and deter future violations. In addition, these may assist in promoting reconciliation between the victims, the affected communities and the convicted person.

Principles of Reparations enunciated by the Court

The Chamber emphasized the following principles to be fundamental while deciding on reparations:

All victims are to be treated fairly and equally as regards reparations, irrespective of whether they participated in the trial.

The victims of the crime shall have equal access to information relating to the reparations proceedings as part of their entitlement to fair and equal treatment throughout the proceedings. However, at the implementation phase, it is acceptable to prioritise reparations to those victims who are most harmed by the convicted person’s conduct.

Victims should be allowed to participate throughout the reparations process and all support to make this participation substantive and effective should be undertaken.

Reparations shall be granted to victims without distinction on grounds of gender, race, age, colour, language, religion or belief, political or other opinion, sexual orientation, national, ethnic or social origin, wealth, birth or other status.

During the process of deciding reparations the safety, physical and psychological well-being and privacy of the victims shall be respected.

Adequacy and promptness of the reparations are of paramount importance.

Reparations should reflect local cultural and customary practices unless they are discriminatory or deny victims equal access to their rights.

Award of reparations in the present case does not exonerate States from their separate and independent obligations, if any, which may exist under International Law.

A reparations order cannot be inconsistent with the rights of the person required to give reparations.

Lastly, a reparations order should contain the following five mandatory elements:

  • It must be directed against the convicted person
  • It must establish and inform the convicted person of his/her liability with respect to the reparations awarded in the order
  • It must specify and provide reasons for the type of reparations ordered, namely collective, individual or both.
  • It must define the harm caused to direct and indirect victims as a result of the crimes of which the person was convicted. In addition, the modalities of reparations that the Chamber considers appropriate in the case should be mentioned.
  • It must identify the victims eligible to benefit from the awards for reparations or set out the criteria of eligibility based on the link between the harm suffered by the victims and the crimes of which the person was convicted.

Who are the Victims?

In the Victim Participation Decision of the Court on 8th June, 2016, the criteria to be met for individuals or organisations to be considered as victims was laid down.

The Harm Principle

To be eligible for reparations, a victim must have suffered harm as a result of the commission of the crime. The Appeals Chamber of the ICC defined ‘harm’ in the Lubanga case to mean ‘hurt, injury and damage’. The hurt may be direct or indirect but it should be personal to the victim. It may be material, physical or psychological. Harm may be caused to a natural person or an artificial entity. In case of artificial entities, demonstration of harm to their properties is essential. The concept of moral harm is recognized, which should be estimated without consideration of the economic situation of the local population.  The crime committed should be the actual and proximate cause of the harm for which reparation is claimed. The test of ‘Reasonable Foreseeability’ will be employed to determine proximate cause. The applicable standard of proof is that of ‘balance of probabilities’.

Types and Modalities of Reparations

Reparations may be either individual or collective. They are not mutually exclusive and may be awarded concurrently. Individual business and families may receive financial support as part of collective reparations. As regards modality of compensation, Article 75 of the Rome Statute gives a non-exhaustive list including restitution, compensation and rehabilitation of victims.

Compensation is understood as money awarded to victims recognizing the harms they may have suffered.

Rehabilitation seeks to restore the victims and their communities to their former conditions. This may incorporate economic, social, medical and legal services.

Reparations can be symbolic in character suited to remedy the harm caused to a community.

Who were the victims of Mahdi’s crimes?

According to the Chamber, the victims of the destructions of the Protected Buildings were not merely the direct victims of Timbuktu but all the people of Mali and the international community.  While 3 broad categories of victims were identified, the Chamber noted that the degree of harm suffered varied for each of the groups. Needless to mention, the community of Timbuktu suffered the most on account of Mahdi’s crimes. No applications were submitted for compensation either by Malians outside Timbuktu or members of the international community. Interestingly, even the UNESCO did not submit any application for reparation and stated that the local communities of Timbuktu have been the principle victims of Al Mahdi’s crimes. Despite the same, the Chamber acknowledged the destruction of the protected buildings as an erasure of a part of the heritage of mankind. All but one of the buildings destroyed were UNESCO World Heritage Sites. Most significant was the determination that addressing the harm caused by the Timbuktu community will adequately address the broader harm suffered by Malians and the international community as a whole. This was all the more significant according to the Court as it would ensure the maximisation of reparations awarded to the Timbuktu community. Additionally, the reparations must be directed at the local community so as to bolster their ability to strengthen the cultural heritage of their community in the wake of systematic destruction.

Mahdi’s Apology

While accepting Mahdi’s apology as genuine, categorical and empathetic, the Court did not view the same as a substitute for monetary compensation. A video excerpt of Mahdi’s apology posted in the ICC’s website along with a transcript translated into the primary languages spoken in Timbuktu, according to the Court would also serve as symbolic reparations. A hard copy of the apology could be made available to any of the victims on demand.

Economic Loss caused by Mahdi

The chamber determined that Mahdi caused economic harm. Guardians of the mausoleums, the macons tasked with the prominent responsibilities in maintaining them and people whose business could not exist without the Protected Buildings including those dependent of tourism and economic activity were adversely affected by Mahdi’s acts.  The chamber awarded individual reparations to those whose livelihoods exclusively depended upon the Protected Buildings. For the others, the chamber determined that collective reparations would serve the purpose. Individual reparations imply direct monetary compensation, whereas, collective reparations should be aimed at rehabilitating the Timbuktu community. This may include, according the chamber, community based educational and awareness raising programmes to promote the unique cultural heritage of Timbuktu.

Moral harm caused by Mahdi

The chamber concluded that Mahdi caused moral harm. This includes mental pain and anguish including losses of childhood, opportunities and relationships to the members of the local community. The disruption of the cultural life of the local community is a moral dimension of the harm caused. The protected buildings were viewed as protectors of the community from external harm and its destruction shattered the communities’ collective faith. 

Award of Compensation

Adding up the total cumulative liability of Mahdi’s act, the chamber set his total liability at 2.7 million euros. The figure includes both individual and collective reparations. Symbolic reparation of 1 Euro was ordered to be granted to the international community best represented by UNESCO.  The fact that Mahdi was indigent would have no bearing on the question of personal liability. Rule 97 (1) provides that the Chamber shall take into account the ‘scope and extent of any damage, loss or injury’, however, the personal financial circumstances of the convicted persons are not mentioned.  However, since Mahdi is indigent, the Chamber encouraged the TFV to complement any individual and collective reparations to the extent possible and engage in fundraising events to the extent necessary to complement the totality of the award. The TFV is required to notify the draft implementation plan for the reparations award by 16 February 2018 on which the Defence and LRV are required to file observations within 30 days of the notification. While the TFV’s implementation plan will be keenly awaited, the Trial Chamber order does a great service to International law by articulating the principles of reparations in International Criminal Law, thereby strengthening the anti-impunity framework in a creative and robust manner.

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International Law

Carl Schmitt for the XXI Century

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For decades, the scholars of international relations have confused the term “New World order” in the social, political, or economic spheres. Even today, few scholars confuse the term with the information age, internet, universalism, globalization, and  American imperialism. Unlike the complex categorization of the New World Order, the concept of the Old World Order was purely a juridical phenomenon. However, from standpoint of modernity, the term New World order is a purely ideological and political phenomenon, which embodies various displays such as liberal democracy, financial capitalism, and technological imperialism.

In his Magnus Opus “The concept of the Political”, Carl Schmitt lauded a harsh criticism on liberal ideology and favored competitive decisionism over it. This is why according to Schmitt’s critics; the whole text in “The concept of the political” is filled with authoritarian overtones. Nonetheless, the fact cannot be denied that it was the radical political philosophy of Carl Schmitt that paved the way for the conservative revolution in Europe. Even today, his writings are being regarded as one of the major contributions to the field of political philosophy from the 20th century.

Throughout his major works such as “Nomos of the earth”, “the Crisis of Parliamentary democracy”, “The concept of the Political” and “Dictatorship”, Carl Schmitt frequently employs unadorned terms such as ‘actual’, ‘concrete’, ‘real’, and ‘specific’ to apprize his political ideas. However, he advances most of the core political ideas by using the metaphysical framework. For instance, in the broader political domain, Carl Schmitt anticipated the existential dimension of the ‘actual politics’ in the world today.

On the contrary, in his famous work “The Concept of the Political” readers most encounter the interplay between the abstract and ideal and, the concrete and real aspects of politics. Perhaps, understanding of Schmitt’s discursive distinctions is necessary when it comes to the deconstruction of the liberal promoted intellectual discourse. However, the point should be kept in mind that for Schmitt the concept of the political does not necessarily refer to any concrete subject matter such as “state” or “sovereignty”. In this respect, his concept of the political simply refers to the friend-enemy dialectics or distinction. To be more precise, the categorization of the term “Political” defines the degree of intensity of an association and dissociation.

In addition, the famous friend-enemy dialectics is also the central theme of his famous book “The Concept of the Political”. Likewise, the famous friend-enemy distinction in Schmitt’s famous work has both concrete and existential meaning. Here, the word “enemy” refers to the fight against ‘human totality”, which depends upon the circumstances. In this respect, throughout his work, one of the major focuses of Carl Schmitt was on the subject of  “real Politics”. According to Schmitt, friend, enemy, and battle have real meaning. This is why, throughout his several works; Carl Schmitt remained much concerned with the theory of state and sovereignty. As Schmitt writes;

I do not say the general theory of the state; for the category, the general theory of the state…is a typical concern of the liberal nineteenth century. This category arises from the normative effort to dissolve the concrete state and the concrete Volk in generalities (general education, general theory of the law, and finally general theory of the knowledge; and in this way to destroy their political order”.[1]

As a matter of the fact, for Schmitt, the real politics ends up in battle, as he says, “The normal proves nothing, but the exception proves everything”. Here, Schmitt uses the concept of “exceptionality” to overcome the pragmatism of Liberalism. Although, in his later writings, Carl Schmitt attempted to dissociate the concept of “Political” from the controlling and the limiting spheres but he deliberately failed. One of the major reasons behind Schmitt’s isolation of the concept of the political is that he wanted to limit the categorization of friend-enemy distinction. Another major purpose of Schmitt was to purify the concept of the “Political” was by dissociating it from the subject-object duality. According to Schmitt, the concept of the political was not a subject matter and has no limit at all. Perhaps, this is why Schmitt advocated looking beyond the ordinary conception and definition of politics in textbooks.

For Schmitt, it was Liberalism, which introduced the absolutist conception of politics by destroying its actual meaning. In this respect, he developed his very idea of the “Political” against the backdrop of the “human totality” (Gesamtheit Von Menschen). Today’s Europe should remember the bloody revolutionary year of 1848 because the so-called economic prosperity, technological progress, and the self-assured positivism of the last century have come together to produce long and deep amnesia. Nonetheless, the fact cannot be denied that the revolutionary events of1848 had brought deep anxiety and fear for the ordinary Europeans. For instance, the famous sentence from the year 1848 reads;

For this reason, fear grabs hold of the genius at a different time than it does normal people. the latter recognizes the danger at the time of danger; up to that, they are not secure, and if the danger has passed, then they are secure. The genius is the strongest precisely at the time of danger”.

Unfortunately, it was the intellectual predicament at the European stage in the year 1848 that caused revolutionary anxiety and distress among ordinary Europeans. Today, ordinary Europeans face similar situations in the social, political, and ideological spheres. The growing anxieties of the European public consciousness cannot be grasped without taking into account Carl Schmitt’s critique of liberal democracy. A century and a half ago, by embracing liberal democracy under the auspices of free-market capitalism, the Europeans played a pivotal role in the self-destruction of the European spirit.

The vicious technological drive under liberal capitalism led the European civilization towards crony centralism, industrialism, mechanization, and above all singularity. Today, neoliberal capitalism has transformed the world into a consumer-hyped mechanized factory in which humanity appears as the by-product of its own artificial creation. The unstructured mechanization of humanity in the last century has brought human civilization to technological crossroads. Hence, the technological drive under liberal democratic capitalism is presenting a huge threat to human civilizational identity.


[1] Wolin, Richard, Carl Schmitt, Political Existentialism, and the Total State, Theory and Society, volume no. 19, no. 4, 1990 (pp. 389-416). Schmitt deemed the friend-enemy dialectics as the cornerstone of his critique on liberalism and universalism.

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International Law

Democratic Backsliding: A Framework for Understanding and Combatting it

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Democracy is suffering setbacks around the world. Over the past decade, the number of liberal democracies has shrunk from 41 to 32. Today, 34 percent of the global population lives in 25 countries moving in the direction of autocracy. By contrast, only 16 countries are undergoing a process of democratization, representing just 4 percent of the global population. Reflecting these troubling trends, USAID Administrator Samantha Power, during her confirmation hearing, highlighted democratic backsliding – along with climate change, conflict and state collapse, and COVID-19 – as among the “four interconnected and gargantuan challenges” that will guide the Biden Administration’s development priorities.

However, defining “democratic backsliding” is far from straightforward. Practitioners and policymakers too often refer to “democratic backsliding” broadly, but there is a high degree of variation in how backsliding manifests in different contexts. This imprecise approach is problematic because it can lead to an inaccurate analysis of events in a country and thereby inappropriate or ineffective solutions.

To prevent or mitigate democratic backsliding, policymakers need a definition of the concept that captures its multi-dimensional nature. It must include the actors responsible for the democratic erosion, the groups imperiled by it, as well as the allies who can help reverse the worst effects of backsliding. 

To address this gap, the International Republican Institute developed a conceptual framework to help practitioners and policymakers more precisely define and analyze how democratic backsliding (or “closing democratic space”) is transpiring and then devise foreign assistance programs to combat it.  Shifting away from broad generalizations that a country is moving forward or backward vis-à-vis democracy—which makes it difficult, if not impossible, to derive specific solutions—the framework breaks closing democratic space into six distinct, and sometimes interrelated, subsectors or “spaces.”

Political/Electoral: Encompasses the arena for political competition and the ability of citizens to hold their government accountable through elections. Examples of closing political or electoral space range from fraudulent election processes and the arrest or harassment of political leaders to burdensome administrative barriers to political party registration or campaigning.

Economic: Refers to the relationship between a country’s economic market structure, including access and regulation, and political competition. Examples of closing economic space include selective or politically motivated audits or distribution of government licenses, contracts, or tax benefits.

Civic/Associational: Describes the space where citizens meet to discuss and/or advocate for issues, needs, and priorities outside the purview of the government. Examples of closing civic or associational space include harassment or co-optation of civic actors or civil society organizations and administrative barriers designed to hamper civil society organizations’ goals including limiting or making it arduous to access resources.

Informational: Captures the venues that afford citizens the opportunity to learn about government performance or hold elected leaders to account, including the media environment and the digital realm. h. Examples of closing informational space consist of laws criminalizing online speech or activity, restrictions on accessing the internet or applications, censorship (including self-censorship), and editorial pressure or harassment of journalists.  

Individual: Encapsulates the space where individuals, including public intellectuals, academics, artists, and cultural leaders– including those traditionally marginalized based on religious, ethnicity, language, or sexual orientation–can exercise basic freedoms related to speech, property, movement, and equality under the law. Common tactics of closing individual space include formal and informal restrictions on basic rights to assemble, protest, or otherwise exercise free speech; censorship, surveillance, or harassment of cultural figures or those critical of government actions; and scapegoating or harassing identity groups.

Governing: Comprises the role of state institutions, at all levels, within political processes. Typical instances of closing the governing space include partisan control of government entities such as courts, election commissions, security services, regulatory bodies; informal control of such governing bodies through nepotism or patronage networks; and legal changes that weaken the balance of powers in favor of the executive branch.

Examining democratic backsliding through this framework forces practitioners and policymakers to more precisely identify how and where democratic space is closing and who is affected. This enhanced understanding enables officials to craft more targeted interventions.

For example, analysts were quick to note Myanmar’s swift about-face toward autocracy.  This might be true, but how does this high-level generalization help craft an effective policy and foreign aid response, beyond emphasizing a need to target funds on strengthening democracy to reverse the trend? In short, it does not.  If practitioners and policymakers had dissected Myanmar’s backsliding using the six-part framework, it would have highlighted specific opportunities for intervention.  This systematic analysis reveals the regime has closed civic space, via forbidding large gatherings, as well as the information space, by outlawing online exchanges and unsanctioned news, even suspending most television broadcasts.  One could easily populate the other four spaces with recent examples, as well. 

Immediately, we see how this exercise leads to more targeted interventions—support to keep news outlets operating, for example, via software the government cannot hack—that, collectively, can help slow backsliding.  Using the framework also compels practitioners and policymakers to consider where there might be spillover—closing in one space that might bleed into another space—and what should be done to mitigate further closing.

Finally, using this framework to examine the strength of Myanmar’s democratic institutions and norms prior to the February coup d’etat may have revealed shortcomings that, if addressed, could have slowed or lessened the impact of the sudden democratic decline. For example, the high-profile arrest of journalists Wa Lone and Kyaw Soe Oo in December 2017 was a significant signal that Myanmar’s information space was closing. Laws or actions to increase protections for journalists and media outlets, could have strengthened the media environment prior to the coup, making it more difficult for the military to close the information space.

A more precise diagnosis of the problem of democratic backsliding is the first step in crafting more effective and efficient solutions. This framework provides practitioners and policymakers a practical way to more thoroughly examine closing space situations and design holistic policies and interventions that address both the immediate challenge and longer-term issue of maintaining and growing democratic gains globally.

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International Law

Authentic Justice Thus Everlasting Peace: Because We Are One

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The ceasefire in the Israeli-Palestine conflict is a good thing. We thank God for it. Be it between two individuals or institutions or nations or the internal colonial and colonized, war does not do anything except cause more immediate or future mass misery and human destruction. Our continued memories of our interpersonal and international and internal colonial and civil wars and the memorials we erect to remember them recall and record wounds and pains we never get over. 

So it becomes a bothersome puzzle as to why we human beings still just don’t get that war like oppression leads to nowhere except to more human devastation. And we should have learned by now but have not that peacemaking like ceasefires mean nothing without justice.

 It is the reason why I constantly find myself correcting those who stress Peace and Justice.No Justice No Peace is more than a cliche.It is real politic emotionally, economically, socially, and spiritually.

Our American inner cities like those in every continent where culturally different and similar people live cramped impoverished lives and nations and colonial enclaves with such unequal wealth remind us of their continued explosive potentialities when peace is once again declared but with no justice.Everyone deserves a decent quality of life which not only includes material necessities but more importantly emotional and spiritual freedoms and other liberations.Not just the victors who conquer and rule and not just the rich and otherwise privileged.

 And until such  justices are  assured to everyone peacemaking is merely a bandaid on cancerous societal or International conflictual soars which come to only benefit those who profit from wars which are bound to come around again when there is no justice and thus peace such as  family destroying divorce lawyers, blood hungry media to sell more subscriptions , arms dealers to sell more murderous technologies, politicians needing  votes so start and prolong wars, and military men and women seeking promotion while practicing their killing capacities.

So if those of us who devoutly practice our  faiths or our golden moral principles,  let us say always and pray and advocate justice and peace always  as a vital public good  and  do justice then lasting peace in our personal lives and insist that national leaders, our own and others do the same in their conduct of international affairs and affairs with those who are stateless in this global world. 

All such pleading is essential since we are all brothers and sisters in the eyes of God who created all of us  in God’s image as one humanity  out of  everlasting divine love for all of us so we should love each other as God loves all of us  leading to desiring justice and thus lasting peace for each and every one of us.

This is difficult for those in international affairs to understand who take more conventional secular approaches to historical and contemporary justice and peace challenges as if our universal spiritual connectivennes  ( not to be confused with the vast diversity of organized religions)as human beings which makes us all brothers and sisters has no relevance. But if we are going to find true enduring peace we have no alternative but to turn our backs on increasingly useless secular methods which go either way, stressing peace then justice or justice then peace and understand how much we must begin to explore and implement approaches which we look at each other as spiritually connected brothers and sisters in which it is the expectation that peace only comes and lasts when  through the equal enjoyment of justices for every human being, we restore our universal kindred rooted in the everlasting love of God and thus for each other, no matter the different ways in which we define God or positive moral principles which originate in understandings that we human beings in all our diversities are one and thus brothers and sisters.

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