ICC Pre Trial Chamber I confirms charges against Al Hassan

Judges of the International Criminal Court (ICC) have found substantial grounds to believe that Mr. Al Hassan Ag Abdoal Aziz Ag Mohamed Ag Mahmoud committed crimes in Mali, and have sent the case to trial.

On 30 September 2019, ICC Pre Trial Chamber I (PTC I) confirmed the charges of crimes against humanity and war crimes, allegedly committed in Timbuktu, Mali, against Mr. Al Hassan.

This decision has been welcomed by many civil society organisations.

“I hope that this case will shine a light and bring to the world’s attention the dire situation in Mali where women and children suffer horrific abuse with many subjected to sexual assault, torture and slavery,” said Mama Koite Doumbia, President, Malian Coalition for the ICC (Malian CICC) when interviewed by the Coalition for the International Criminal Court (CICC).

Moctar Mariko, the President of the Association Malienne des Droits de l'Homme (AMDH) also stated that “this is an important step towards prosecuting some of those allegedly responsible for serious crimes committed in Mali, particularly at a time when judicial proceedings in Mali relating to the crisis are stalled."

Mr. Al Hassan is accused of being involved in widespread and systematic attacks against the civilian population as part of the armed groups Ansar Eddine / Al Qaeda in the Islamic Maghreb, between 1 April 2012 and 28 January 2013.

Mr. Al Hassan is also accused of committing war crimes against the civilian population of Timbuktu during an armed conflict not of international nature between April 2012 and January 2013.

The alleged crimes include religious and gender-based persecution, torture, rape, sexual slavery, forced marriages, cruel treatment, outrages upon personal dignity intentionally directing attacks against buildings dedicated to religion and historic monuments, among other.

This case may help advance the discussion on accountability for sexual and gender-based violence – such as sexual slavery and forced marriage. This is not the first time “forced marriage” have been confirmed by the ICC judges as a crime against humanity. In the Dominic Ongwen case, ICC judges confirmed charges of forced marriage, under the category of “other inhumane acts,” against Mr. Ongwen.

During the confirmation of charges hearing in July 2019, ICC Prosecutor Fatou Bensouda stated that, in Timbuktu, “[w]omen and girls were pursued into their very homes; they were abused, punished, beaten, imprisoned, and subjected to corporal punishment, for a variety of reasons: failure to wear clothing prescribed by the groups, giving water to a man, not having gloves at the market to pay and receive money, and so on”.

The Al Hassan case, however, has not been free from controversy.

The judgment is yet to be published. The Court only published a redacted version and said that the full decision will be published at a later date. The reasons for this delay are unclear.

The delay in publishing this decision in both English and French, the ICC working languages, is likely to affect victims’ right to access information. Victims are still waiting to know exactly what the ICC judges decided and how this decision will impact their rights.

Furthermore, before the start of the confirmation of charges hearings, which is not a trial but a public hearing, Mr Al Hassan’s Defence requested on 18 June 2019 the disqualification of Judge Marc Perrin de Brichambaut from the case. They alleged that the Judge had engaged in professional activities, which advanced France’s political and military interests.

And, at the start of the confirmation of charges hearing, on 8 July 2019, the Defence called for Judge Alapini-Gansou’s disqualification querying the Judge’s 2012 involvement in the African Union fact-finding mission on crimes allegedly committed in Timbuktu.

On July 11 2019, the Defence requested the removal of all PTC I judges from this case and alleged various violations of Al Hassan’s right to a fair trial. On 3 July and 12 September, respectively, the Plenary of Judges dismissed all the disqualification requests filed by Al Hassan.

Although the majority agreed on the dismissal of the disqualification requests, however, a minority of judges considered that a fair-minded reasonable observer “could reasonably conclude that Judge Alapini-Gansou’s appearance of impartiality is undermined.”

This and other cases illustrate the importance for the ICC to develop its jurisprudence and practices in a way that reflects the code of conduct and ethics of both the judges and the prosecutor in order to safeguard and strengthen the integrity of ICC proceeding.