On 27 September 2016 Ahmad Al Faqi Al Mahdi was sentenced to nine years for the war crime of attacking protected objects under Article 8(2)(e)(iv) of the Statute, specifically, “[i]ntentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.”1Prosecutor v. Al Mahdi, ICC-01/12-01/15, Judgment and Sentence, 27 September 2016, para. 11.
In a previous post I discussed the plea bargaining process and trial or, as I call it, slow change of plea hearing. I noted that in all likelihood Trial Chamber VIII would accept the plea agreement if satisfied that the facts proved the crimes admitted and if it found that the agreed period of time was commensurate with the gravity of the crimes. Many have written on the Al Mahdi case. Some questioned the imperative for prosecuting such low-level crimes, and for not including other crimes that Al Mahdi allegedly committed, such as murder. Others looked at the case as a major watershed for the ICC for prosecuting the destruction of religious and cultural property. All who have commented on this case have made a valuable contribution in raising awareness on the importance of combatting against culturecide.
There are reasons why religious, historical, and cultural sites are intentionally destroyed, and it is not because they are legitimate military targets. Yes, unlawful killings are graver as crimes than destroying property, but this is not just any property, and it does not belong to just those who are in possession of it. It belongs to humanity. One must also look at why religious and cultural sites are intentionally destroyed: it is an attempt to rob one of his spiritual, cultural, and historical identity. So, it is beyond cavil that ICC Prosecutor Ms Fatou Bensouda made the right call.
As cases before international courts and tribunals go, the Al Mahdi case has to rank pretty high when it comes to efficiency. The warrant for arrest was issued on 18 September 2015. One year and nine days later, Trial Chamber VIII issued its judgment and sentence. Considering that the plea agreement was reached on 18 February 2016, it seems that some time was lost on procedural matters which are arguably unnecessary. But then, when further considering that this was the first plea agreement, the time and resources it took to resolve the case, is impressive. And when you factor in the quality of the judgment, it is even more impressive. Exemplary.
There are a few things worth noting in the judgment. I leave it to others to get down in the weeds and go over the minutia. I will just mention what I found most interesting, and why I think this is indeed a watershed moment for plea agreements (aside for what we already concluded on prosecuting acts of culturecide) at the ICC.
First, from reading the judgment, it is clear that the Prosecution was reasonable and measured in focusing its attention on the limited crimes it could prove beyond a reasonable doubt. This does not mean that Al Mahdi cannot be prosecuted elsewhere for any alleged crimes not charged. Jeopardy / ne bis in idem does not attach or bar prosecution for any of those uncharged crimes.
Second, the Prosecution offered Al Mahdi a realistic maximum sentence; one that obviously was sufficient to entice Al Mahdi not to roll the dice and take his chances in a trial that could have taken years to complete, not counting the appeal process.
Third, the plea agreement had a very interesting clause not found, strangely, in other plea agreements at the ad hoc tribunals: a waiver of the right to appeal if the sentence is within the maximum agreed. This right to appeal waiver is typically found in plea agreements in the United States. It never made sense to me that after there was an agreement of a range of a sentence (e.g., five years as the minimum and ten years being the maximum), when the accused was sentenced to the maximum or less, the sentenced was appealed – usually for lack of proper consideration of mitigating circumstances. If the accused has already agreed that the crimes he has committed warrant up to ten years because of the conduct involved and gravity of the crimes, then why is the imposition of the maximum an excessive sentence? The Al Mahdi plea agreement put an end to such re-litigation: Al Mahdi waived his right to appeal the conviction or sentence, provided the sentence was not in excess of the recommended sentencing range.2Id., para. 30(iii)(e), citing Prosecutor v. Al Mahdi, ICC-01/12-01/15-78-Anx1-Red2, Annex 1 to the Version publique expurgée du “Dépôt de l’Accord sur l’aveu de culpabilité de M. Ahmad Al Faqi Al Mahdi”, 25 février 2016, ICC-01/12-01/15-78-Conf-Exp, (public redacted English translation notified on 9 September 2016), Agreement regarding admission of guilt, para. 21; ICC-01/12-01/15-T-6-ENG, Transcript of the Trial Hearing, 24 August 2016, p. 11, lines 3-7.
Fourth, the judgment is clear, concise and sets the gold standard for other plea agreement judgments. It is extremely well organized, easy to follow, absent convoluted sentences and antiquated Latin maxims (a favorite among some international judges). The facts are cogently set out, the procedural matters and legal issues related to plea agreements are thoroughly discussed, and the sentence is soundly justified by listing the factors the Trial Chamber considered. Indeed, the explanations to the mitigating factors have the resonance of a clarion call for future accused to strongly consider engaging in plea bargaining early in the case, before valuable time and resources are wasted.
Fifth, the timing it took to pump out this well-crafted judgment, 35 days. Obviously much of it would have been written in advance as the Trial Chamber explored the procedural and legal aspects of plea agreements before the ICC, as well at other legal issues related to the alleged crimes. Nonetheless, the speed is impressive when considering the quality of the judgment. Others to follow should be even quicker to draft since the Al Mahdi judgment can not only serve as the template, but all legal issues relevant to the appropriateness of accepting guilty pleas based on agreements, with shortened trial proceedings for establishing the factual predicate to the crimes admitted, have been effectively resolved.
Much more can be said about the Al Mahdi case and this judgment, and no doubt much will be written about it. As a defense lawyer who has been involved in hundreds if not thousands of plea agreements in my home jurisdiction, and having studied plea agreements at the ad hoc international tribunals and the appeals that generally follows the guilty pleas, the Al Mahdi judgment is worth studying. I would say the same thing for the case itself. It is a very good example of how plea bargaining should be done. Bravo!
|↑1||Prosecutor v. Al Mahdi, ICC-01/12-01/15, Judgment and Sentence, 27 September 2016, para. 11.|
|↑2||Id., para. 30(iii)(e), citing Prosecutor v. Al Mahdi, ICC-01/12-01/15-78-Anx1-Red2, Annex 1 to the Version publique expurgée du “Dépôt de l’Accord sur l’aveu de culpabilité de M. Ahmad Al Faqi Al Mahdi”, 25 février 2016, ICC-01/12-01/15-78-Conf-Exp, (public redacted English translation notified on 9 September 2016), Agreement regarding admission of guilt, para. 21; ICC-01/12-01/15-T-6-ENG, Transcript of the Trial Hearing, 24 August 2016, p. 11, lines 3-7.|