Al Mahdi case: women and girls must not be excluded from reparation

Adrienne Ringin, a student of University of Melbourne Law School’s International Criminal Justice Clinic, highlights important gender concerns arising in the International Criminal Court’s third reparations order. The piece includes input from Amnesty International’s Mali team.

In ordering Ahmad Al Faqi Al Mahdi to provide reparation for the destruction of cultural property in Timbuktu, Trial Chamber VIII stated, consistent with Article 21(3) of the Rome Statute, that:

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

However, examination of the reparations order suggests that the Trial Chamber did not fully consider the situation of women and girls.

The Chamber ordered €2.7 million to be paid to the victims of the 2012 attacks which led to the destruction of ten buildings of religious and historic significance in Timbuktu (commentaries on the order are available here, here and here). Following the principles established in the Lubanga case, it ordered both individual and collective reparations to address three categories of harm: damage to the affected buildings, consequential economic loss and moral harm.

Notably, the Chamber restricted individual reparation for consequential economic loss ‘to those whose livelihoods exclusively depended upon the Protected Building’, including:

the guardians of the mausoleums, the maçons tasked with prominent responsibilities in maintaining them and people whose businesses could not exist without the Protected Buildings … such as a business whose only purpose is to sell sand perceived as holy from the sites of the Protected Buildings – but not owners of businesses with broader purposes who have been harmed by the loss of the Protected Buildings.

By defining the beneficiaries this way, on the basis that their loss was ‘more acute and exceptional’ than the rest of the victim community, the Chamber risks excluding women and girls. The roles directly connected to the mausoleums expressly mentioned by the Chamber – guardians of the mausoleums and the maçons – although illustrative, were performed by men – women were not allowed to enter the buildings. ‘People whose businesses could not exist without the Protected Buildings’ could be interpreted as focussing only on business owners, who are also mostly men.

Indeed, as CEDAW’s 2016 Concluding Observations on Mali notes, the employment of women is ‘concentrated in the informal sector’ and women are exposed to ‘persistent horizontal and vertical segregation in the labour market in both the public and private sectors’. Even if women and girls worked for businesses that provided services to visitors to the buildings, it is not clear whether they are eligible for individual reparations for their consequential economic loss under this order. If the order does extend to employees, they may face greater difficulty in demonstrating their eligibility over people in formal employment – mainly men. The reparations order therefore risks reinforcing gender discrimination that already exists.

The order also poses specific challenges to women and girls seeking to access individual reparation for moral harm by requiring victims to demonstrate an ancestral connection to the destroyed burial sites. Mali is a largely patriarchal society. Its Family Code states that a husband is the ‘chief’ of the family and entitled to the obedience of his wife. In this legal and cultural setting, women and girls may find it difficult to make an individual claim establishing a connection to the sites in their own right for their own benefit. These social realities do not appear to have been considered in the order at all.

Regrettably, the Chamber does not appear to have considered the submission of the UN Special Rapporteur in the Field of Cultural Rights that ‘if there was no specific provision made for reparations for women, women will be unlikely to be the beneficiaries of the reparations.’ Moreover, despite the substantial literature on the gender dimensions of reparations and of cultural heritage (see here, here and here), the order only superficially engages with these issues.

As a landmark case on reparations for cultural heritage, the opportunity to set effective standards must not be missed. Reparations must reflect a commitment to substantive gender justice, not just pay lip service to this goal. In order to deliver reparations that are truly gender sensitive, the ICC should have sought and taken into account further information on the gendered patterns of employment in and around the mausoleums, and the differences in men’s and women’s connections with the sites.

Despite the limitations of the order, this case still presents some opportunity to work through the gendered implications of a crime that appears ‘gender neutral’ at first glance. Much now depends on implementation. The Trust Fund for Victims and the Chamber can and should interpret the order to provide reparation for consequential economic harm to women and girls whose livelihoods depended upon the Protected Buildings. Effective outreach should be conducted and appropriate standards of proof adopted to ensure that women and girls with ancestral connections to the site can access individual reparation for moral harm.

As the Trial Chamber recognized, it has a duty to grant reparations without adverse distinction on gender grounds. To carry out this duty, orders must be carefully crafted to respond to the lives of all victims in the affected community – including women and girls.