Having reviewed the facts, the actors and their religious affiliations, and the principles in Islamic Law relevant to understanding their motivations in the first part of this post, this second part analyzes the attack to the Timbuktu tombs under IHL and Islamic Law of Armed Conflict (ILAC) to determine its lawfulness in both legal frameworks.
Analysis of the attack under IHL:
To analyze the attack under IHL this post will first qualify the conflict in Timbuktu, and then within that framework, it will analyze the protection of cultural heritage.
The qualification of the conflict under IHL
IHL recognizes two types of armed conflict: international and non-international. The key distinctions between them are the parties involved in the conflict. If the parties are two or more States, it will be an international conflict, whereas if one of the parties is a non-State actor, it will be a non-international armed conflict (NIAC). Nevertheless, not every situation of internal armed violence amounts to a NIAC. According to the Tadic decision, there are two constituting core elements for a NIAC, a) protracted armed violence, which entails a certain intensity of the armed violence, and b) the armed non-state actors exhibit a certain degree of organization.
In the case of Timbuktu, there was a confrontation between a coalition of armed groups (consisting of AQIM, Ansar Dine, and MNLA) and the Mali armed forces, hence it was a NIAC. Additionally, the control of AQIM and Ansar Dine over the territory of Timbuktu is proof of the intensity of violence, and the establishment of institutions, including the Hisbah shows the organization of the two groups involved in the attack. Consequently, on the basis that Mali had ratified Additional Protocol II, the legal framework applicable encompasses Common Article 3 of the Geneva Conventions, Additional Protocol II (AP II), and the Customary Rules of IHL.
The protection of cultural heritage in IHL
IHL protects cultural heritage in NIACs. Article 16 of AP II, prohibits any act of hostility directed against inter alia historical monuments, and places of worship which constitute “cultural or spiritual heritage of peoples”. According to the diplomatic conference, this text refers to cultural property of importance of every nation (humankind). This prohibition is an absolute one and does not admit a waiver in case of military necessity.
In contrast, Article I of the Hague Convention for the protection of cultural property in armed conflict, defines and protects cultural property which forms part of the cultural heritage of “every people”. On the basis of this slightly different wording, it can be seen that the protection of the Second Protocol to the Hague Convention (which understands cultural property as defined in the convention) has a narrower scope of protection than the one of Article 16 APII because the type of protected property is not heritage of the whole humankind. Unlike the protections in Additional Protocol II, Article 6 of the Second Protocol also admits a waiver that allows acts of hostility against cultural property or military use of cultural property in case of military necessity (see here for discussion).
The tombs attacked by Al Mahdi were not only places of worship but also cultural heritage of the community. Nine out of the ten sites had the status of World Heritage by UNESCO (Para.39). Thus, it is unquestionable that they were cultural heritage of peoples under Additional Protocol II and enjoyed absolute protection.
It is important to highlight that while the Sheikh Mohamed Mahmoud Al Arawani Mausoleum did not enjoy the UNESCO status, the AP II does not demand a building to have this status to enjoy this protection. Furthermore, even if this mausoleum was considered to fall within the scope of the Hague Convention as “cultural heritage of every people” and be subjected to a waiver on the basis of imperative military necessity, Article 6 of the Second Protocol of the Hague Convention only admits invoking it when the cultural property has, by its function, been made into a military objective or there is no feasible alternative available to obtain a similar military advantage. The mausoleum in question had none of the aforementioned functions and served only a religious purpose. Hence, it was protected under both treaties, the Hague Convention and AP II, and AQIM and Ansar Dine violated IHL rules in the attack that destroyed ten cultural sites that were the heritage of humankind.
Analysis of the attack under Islamic Law
Before moving to the analysis under ILAC, it is necessary to acknowledge that Islamic Law is a complex field of law. There are various sources of law and there is no codification of it. It does not come from legal positivism or natural law. Thus, the following analysis of the attack of the Timbuktu tombs under Islamic law is conducted in the framework of this unique system of law and should not be understood from the western paradigm of international law. In this line, the attack will be analyzed from the perspective of the lawfulness of the use of armed force of an Islamic state with other non-Islamic territories, and then, within an Islamic state.
The determination of the relation between AQIM and Ansar Dine and the territory of Timbuktu
Firstly, to determine whether the use of armed force was lawful or not under ILAC, it is necessary to establish the way in which AQIM and Ansar Dine related to Timbuktu. Islamic law has developed a particular way in which Islamic territories relate to other territories. These relations respond to a classical paradigm that divides the world into three. Although modern Muslim scholars almost unanimously agree that this division has no basis in the Qur’an or the Sunnah, it is relevant for the analysis because extremist groups widely use it (at 104-105).
The three divisions are d?r al-Isl?m (house of Islam), d?r al-?arb (house of war), and d?r- al-?ul? (house of peace). These notions will be simplified in this post for space constraints.
House of Islam can be interpreted in three different ways: as a territory where (1) Islam and Islamic law is practiced, (2) as a territory ruled by Muslims, (3) or as a territory where Muslims and dhimmis (permanent non-Muslim citizens of an Islamic state) enjoy freedom to practice their religions. The house of war is understood in opposition to the three above-mentioned interpretation of the house of Islam. It can be (1) any part of the world where Muslims cannot live and practice their faith, (2) a territory that it is not ruled by Muslims, or (3) where Muslims and dhimmis cannot practice their faiths peacefully. Although the issue is much more complicated, if any of the three described situations in the house of war occurs, then Muslims following this typology believe that they can resort to the use of armed force against those who control the territory. Finally, the house of peace refers to territories that are non-Muslim but have entered into peace agreements or non-aggression pact with an Islamic state.
Accordingly, under this framework, at the moment of the attack to the tombs, Timbuktu was clearly D?r al-Isl?m (i.e. house of Islam), because it was governed by Islamic authorities, enforcing Islamic law and ruled by Shar’iah law. Additionally, the population professed and practiced Islam. Therefore, the use of armed force was not justified from the classic paradigm of international Islamic relations.
Although Timbuktu was house of Islam at the moment of the attack, it is still possible under ILAC to use armed force in the house of Islam against certain groups that also use armed force. Such situations are comparable to NIAC, and they occur when the Muslim forces fight against al-murtaddún (apostates), al-bugháh (armed rebels, separatists), al-Khawárij (violent religious fanatics), and al-mu?áribún (highway robbers, bandits, pirates, terrorists). (p. 122).
The fight against al-murtaddún refers exclusively to the specific incidents of groups apostatizing from Islam following the death of Prophet Muhammad, and it is not used as a category after that. The fight against al-bugháh, accordingtothe scriptural sources, refers to the fight between armed rebels or secessionists and the State. These groups must have military power and organization (Shawkah man’ah, fay?ah), a complaint about an injustice inflicted by government or a violation of the Shar’iah, and they must use armed force (khurúj).The Khawárij have as distinct characteristics that they are pious worshippers with a very narrow understanding of Islam and the Qur’an, they target indiscriminately Muslim civilians, seize the property of their victims, and they hold that those who commit a major sin as kuffár (unbelievers).Finally, the al-mu?áribún are armed robbers or bandits. Their motives are lucrative or spreading the terror among their victims. They use armed force but do not have a religious foundation nor claim to have a just cause for their actions.
The transference of these categories to the qualification of the attack of the Timbuktu monuments requires to bear in mind that Ansar Dine and AQIM had the role of the government, with institutions as the Hisbah that ensure the enforcement of Shar’iah law. Therefore, it is not necessary to assess in which of these categories Ansar Dine and AQIM fall into but to assess whether their attack to the tombs was a response to any group that belongs to these categories.
As explained before, the mausoleums were places of worship and prayers for Sufi Muslims, who never used armed force. Hence there is no foundation in ILAC that enabled the attack, and that is probably the reason why Al Mahdi initially advised against it.
As a final point in the determination of the lawfulness of the attack under Islamic Law, it is necessary to review whether the practice of ziyara (visitation of mausoleums) is prohibited in Islamic law, and thus enabled the destruction of the shrines. Ziyara is controversial amongst the Muslims, the Shi’ite must go on pilgrimages to visit the graves of Ali ibn Abi Talib (600 – c.661) and of Husayn ibn Ali (624-680), and the Wahhabis reject and denounce the veneration of saints. The divergence of this practice is founded in the lack of Qur’anic sources and the ambiguous hadiths which intermittently condemn and advocate for visitation of graves and do not offer a clear-cut opinion in the matter.
None of the verses of the Qur’an prescribe the destruction of idols. Although verses 21:56-57 describe the breaking of idols by Abraham to guide his people to the oneness of God (tawhid), they do not command or condemn such behavior. As for the Prophet, he first forbade the practice of ziyara, but once the principle of tawhid was solidly established, he encouraged ziyara as a reminder of death and the Afterlife, becoming permissible (mubah) and recommended (mustahab). Following this interpretation, veneration of saints at their tombs was a prevalent phenomenon throughout the middle east for many centuries, especially during the twelfth and thirteenth centuries pilgrimage sites proliferated.
On the other hand, justifications for tombs destruction in the Islamic scholarship are traced to Ibn Taymiyya (1263-1328), a Syrian jurist who condemned the practice of Ziyara and issued a fatwa (non-binding legal opinion)stating that visitation of graves amounted to innovation (bid’a), and challenging the hadiths that encouraged them. Abd al-Wahhab (1703-1792) was influenced by Ibn Taymiyya, and founded the Wahhabism, a doctrine that calls for a return to the practice of the earliest generations of Islam (salaf al-salih), and that entails the destruction of all shrines and tombs for embodying polytheism.
Consequently, there is no definite answer on the prohibition of ziyara in the legal framework of Islam because it is contradictory. Depending on the doctrine a group decides to follow, there will be foundation for protecting as well as for destroying the shrines, which proves the complexity of Islamic Law, and the difficulty for making categorical statements.
In the case of the Timbuktu mausoleums, AQIM and Ansar Dine, as Salafist groups, adopted the Wahhabi approach, which resulted in the destruction of the tombs that cannot only be condemned by Islam but also by IHL and the rest of the world who lost part of the history of humanity. Likewise, although Al Mahdi initially advised against their destruction, he did not base his opinion on Islamic law; on the contrary, he held that all Islamic jurists agreed on the prohibition of the construction of mausoleums, omitting to inform about the ambiguity in the matter and using Islamic law to his convenience. This ambiguity should have played in favor of the protection, given that other corpus juris, besides Islamic law, also protected the Tombs
This analysis proves that IHL and Islamic Law are not very different bodies of law when it comes to the use of armed force. Radical groups purposely follow certain doctrines that find contradiction in Islam, and use the lack of knowledge on Islamic law to justify crimes that have no clear legal foundation in Islam. The attack on ten cultural sites in Timbuktu conducted by AQIM and Ansar Dine under the leadership of Al Mahdi proves so, and it is necessary that the analysis of attacks where Islamic Law was invoked as a source of justification, start to actually resort to Islamic Law to gain legitimacy, especially in the ICC, where this conflict will be touched upon once again in the recently started trial of Al-Hassan.