Andrea Trigoso is a Peruvian qualified lawyer. She holds an LLM in International Crime and Justice by UNICRI and is currently pursuing a MAS in Transitional Justice, Human Rights and Rule of Law at the Geneva Academy. She has previous experience in International Criminal Law in the ICC, STL and as a campaign manager of the Peruvian ICC judge in the 2017 elections. She also worked as a civil attaché at the Embassy of Peru in the Netherlands, where she was in charge of the matters related to the International Court of Justice. Twitter: @andreatrigoso
In 2016, Ahmad Al Faqi Al Mahdi pled guilty, and was sentenced by the International Criminal Court (ICC) as the person who was in charge of intentionally directing attacks against the Timbuktu tombs in Mali. He was an expert Islamic scholar affiliated to Ansar Dine and Al-Qaeda for Islamic Maghreb (AQIM), two organizations that claimed to base their actions on Islamic Law.
This two-part post makes a comparative analysis of the attack on the Timbuktu tombs under International Humanitarian Law (IHL) and Islamic Law of armed conflicts (ILAC). The goal is to determine the lawfulness of the attack in both legal frameworks, trying to unentangle the myth that Islam permits and enables this type of conduct.
Part I
This first post reviews the attack and the actors involved, considering the Islamic context and explaining the correspondent affiliations and institutions which serve as the backdrop for the second piece that will analyze the attack in IHL and ILAC
The attack to the tombs and the role of Al Mahdi in the Hisbah
The ICC convicted Al Mahdi to nine years of imprisonment for the war crime of attacking protected objects in accordance with Article 8 (2)(e)(iv) of the Rome Statute. The attack was carried out in Mali, between 30 June and 11 July 2012, when Ansar Dine and AQIM had territorial control of the region. It was conducted against the following ten buildings of a religious and historical character in Timbuktu,: (i) the Sidi Mahamoud Ben Omar Mohamed Aquit Mausoleum; (ii) the Sheikh Mohamed Mahmoud Al Arawani Mausoleum; (iii) the Sheikh Sidi El Mokhtar Ben Sidi Mouhammad Al Kabir Al Kounti Mausoleum; (iv) the Alpha Moya Mausoleum; (v) the Sheikh Mouhamad El Mikki Mausoleum; (vi) the Sheikh Abdoul Kassim Attouaty Mausoleum; (vii) the Sheikh Sidi Ahmed Ben Amar Arragadi Mausoleum; (viii) the Sidi Yahia Mosque door and the two mausoleums adjoining the Djingareyber Mosque, namely (ix) the Ahmed Fulane Mausoleum and (x) the Bahaber Babadié Mausoleum (Para. 9-10).
This conflict in northern Mali started in January 2012 with an armed uprising started by the “Mouvement National de liberation de l´Azawad” (MNLA), a Tuareg separatist faction, supported by three jihadist groups: AQIM, its offshoot “Movement pour l’unicité et le Jihad en Afrique de l’Ouest’ (MUJAO), and Ansar Dine. The coalition took over the North of Mali and evicted the Malian army and government administration, and what started as a secular rebellion was hijacked by the three Salafi-jihadist groups (at 915).
Ansar Dine and AQIM took control of Timbuktu around April 2012 until January 2013. They imposed Shar’iah law through religious and political edicts on the territory and established a local government that included an Islamic Tribunal, an Islamic Police Force, a Media Commission, and a morality brigade called Hisbah.(Para.31)
Al Mahdi was considered an expert in religious matters as he had received a Qur’anic education and gave lectures on Islam. He was in close contact with the leaders of Ansar Dine and AQIM, that proposed him to lead the Hisbah, which he accepted (at 505). From April to September 2012, he led the Hisbah and was in charge of regulating the morality of the people in Timbuktu and preventing, suppressing, and repressing anything that may constitute a visible vice.(para 32-33). To understand the role of Al Mahdi in the government, it is fundamental to understand first the Hisbah.
The Hisbah and the Muhtasib
Hisbah is a Qur’anic principle that instructs Muslims to command for good and forbid evil, which is mainly determined by the Shari’a, in particular by those rules that protect the five values of life, faith, intellect, property, and lineage (at 493-495). The muhtasib is the person who bids good or forbids evil and must be sure that their attempts at prevention do not cause a greater evil (at 493).
Since the Hisbah is a function of the State, the head of the State is in charge of appointing the muhtasib that has three main tasks: policing of markets, monitoring the state of the roads and buildings in the city, and the enforcement of public morals. The muhtasib is someone who masters fiqh (Islamic jurisprudence) and the rules of Islamic Law, with sufficient knowledge of what is permissible and what is forbidden.
Ansar Dine and AQIM, in order to comply with the principle of Hisbah, established an institution with the same name in Timbuktu. Al Mahdi was the appointed muhtasib of the Hisbah, one of the four primary institutions established by Ansar Dine and AQIM. In that context, the governor appointed by Ansar Dine brought to Al Mahdi’s attention the practices of pilgrimage and worship in the mausoleums and asked him to monitor the cemeteries in order to stop and prohibit these practices. Al-Mahdi did so for around a month until the leader of Ansar Dine (Iyad Ag Ghaly), the chief of AQIM (Al Hamman), and a Mujtahid of the AQIM (Al Chinguetti) decided to destroy the mausoleums.(Para.36-40)
Al Mahdi, as the muhtasib, was consulted before the decision was made, and he indicated that all Islamic jurists agreed on the prohibition of any construction over a tomb. However, he advised against the tombs’ destruction for the sake of the good relations between the population and the occupying forces (para.35).
Nevertheless, once the attack was decided, Al Mahdi conducted it. He wrote a sermon dedicated to the destruction of the mausoleums for the prayers of the day of the launch of the attack, determined the sequence and the targeted monuments, and justified to the media the destruction of these places (para. 37) .
Islamic backgrounds of the actors involved in the attack
In order to carry out a comparative analysis of the attack under IHL and ILAC , it is important to first have a good understanding of the actors involved in it and their religious viewpoints. Thus, before entering into the legal analysis of the attack in part II of this blog post, I will provide a few short definitions of them.
One of the main actors involved in the attack was AQIM, which was the group that had the decision-making power in Timbuktu. This group was the successor of the Salafist Group for Call and Combat created in Algeria in 1998. Following the union with the group Al-Qaida in 2007, the group was renamed as AQIM.
As the successor of Call and Combat, AQIM also followed the Salafism, a theological and legal orientation that represents Sunni Muslims who claim to be like salaf, a term used to designate the first three generations of Muslims. Members of the Salafist movement consider those first three generations of Muslims, as the ones who have most accurately preserved the Prophet’s teachings. Hence, Salafi Muslims sought to emulate their pious predecessors and support the implementation of Shari’a law).
AQIM was not only Salafist, but also a jihadi group ( jihadi-Salafist). As such, it proclaimed that military jihad should be waged between Muslims and non-Muslims to expand the d?r al-Isl?m (house of Islam), and also against what they perceive to be the apostate rulers in the Muslim world itself. Therefore, it was precisely under this jihadi-Salafist interpretation of Islamic Law that AQIM jointly with Ansar Dine governed Timbuktu, and considered the Muslims living and worshipping there as apostates because they were Sufists, a different current within Islam, that emphasizes introspection, love, and knowledge of God.
Sufists follow the Shar’iah with dedication, although they have criticized the emphasis on the legalistic aspect of Islam. Their rituals consist of the recitation of prayers, poems, and selections from the Qur’an as well as the repetition of divine names. They also dance and chant at the tombs of the saints, which is considered idolatry by some Muslims because God should be the sole object of worship. In this latter group are the Salafi Muslims that have considered Sufis as the enemy of Islam (p. 76). This rejection is more evident in radical groups, and it was materialized in the destruction of the mausoleums in Timbuktu ordered by AQIM, and the justification offered by Al Mahdi to the media, saying that they were places of idolatry (para.24 – 25).
Conclusion of the First Part:
Reviewing the specific context in which Al Mahdi acted, and identifying the framework of Islamic and Shar’iah law that serves as a legal (and not only religious) foundation for AQIM and Ansar Dine actions, is important for the analysis in the next post which considers whether these armed groups had actual basis in Islamic Law to conduct the attack, or if this behavior is only condemned in IHL.
