Petite Sardine or Big Fish? Rebel Governance and the ICC Al Hassan Trial

About the author(s):

Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.

Sean Watts is a Professor in the Department of Law at the United States Military Academy at West Point where he co-directs the Lieber Institute for Law and Land Warfare. He serves as Co-Editor-in-Chief of the web forum Articles of War. He is a Senior Fellow with the NATO Cooperative Cyber Defence Centre of Excellence. He is also a visiting Professor with the University of Reading (UK) Law School. He was a member of the group of experts on the Tallinn Manual on Cyber Operations 1.0 and 2.0. He served on the defense team at the Gotovina et al. case at the International Criminal Tribunal for the former Yugoslavia. He retired from the U.S. Army after 25 years of service on active and reserve duty as a military lawyer and Armor officer.

Diletta Marchesi is a PhD Fellow of the Research Foundations Flanders (FWO) at KU Leuven. In her doctoral thesis, she aims to shed light on the interpretation of the war crimes of denying judicial guarantees and discusses international criminal law’s role in the protection of fair trial rights. At KU Leuven, she is teaching assistant and researcher involved in other research projects dealing with criminal justice and human rights. Since 2020, Diletta has been admitted to the bar in Italy. She was a rapporteur for the Oxford Reports on International Law in the field of International Human Rights Law (2021–2023). She has been trained as a lawyer at the European Court of Human Rights (2016), at the International Criminal Court’s Office of the Prosecutor (2016) and in law firms in Italy (2017–2018). In 2022, she was invited as visiting professional to provide legal advice on the war crime of sentencing and execution without due process by the Al Hassan defence team at the International Criminal Court. She also provides pro bono assistance to NGOs working in the field of criminal justice and human rights. She holds a combined LL.B. and LL.M. from the Alma Mater Studiorum—Università di Bologna, obtained magna cum laude. Her main areas of interest are international criminal law, international humanitarian law and human rights.

On 25 May, the Defence finished their closing statements in the Al Hassan case at the International Criminal Court (ICC). The case relates to acts committed during the nine months of 2012 and 2013 that Ansar Dine and Al-Qaida in the Islamic Maghreb (AD/AQMI) controlled Timbuktu. The case stems from a self-referral by Mali in July 2012 and an arrest warrant the Court issued in March 2018. Pre-Trial Chamber I confirmed the charges against Mr. Al Hassan on 30 September 2019. Trial Chamber X opened the trial on 14 July 2020 and closed it on 25 May 2023.

As we await the judgment, the Armed Groups and International Law and Articles of War blogs have invited a number of experts to identify and discuss some of the key points of law presented by this important case. Our series will offer comments on: rebel governance; conflict classification; the charged acts’ belligerent nexus; wrongful detention charges; the war crime of sentencing or execution without due process; sexual and gender-based crimes charged; cultural dynamics including the application of Islamic law in Timbuktu; and the allegations that Mr. Al Hassan was tortured in custody. We anticipate the series will prime our readers for what will no doubt be an important and influential judgment by the Court.

Context of the Case

The Al Hassan case stems out from AD/AQMI’s territorial and political control of Timbuktu between 1 April 2012 and 28 January 2013. During this time, these two armed groups applied Sharia law in the region, forcing civilians to adjust their behaviour to what are alleged by the Office of the Prosecutor (OTP) to be new rules and laws, including prohibitions on watching television and smoking and imposing strict dress codes. The groups spawned entirely new governance institutions and assigned their functions to its members. These institutions included a “security battalion,” the Hesbah, the Islamic Police, and the Islamic Tribunal. Collectively, these institutions were responsible for security in the city, patrolling the streets, monitoring compliance new rules, arresting offenders, and executing punishments (usually detention or flagellation). The roles of these organs were very much intertwined, so much so that it is not easy to grasp their respective contributions (a contentious point during the trial). 

Mr. Al Hassan’s Role in Timbuktu

Mr. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud—a Malian national belonging to the Tuareg/Tamasheq Kel Ansar tribe—was allegedly “chef adjoint” or “commissaire” of the Islamic Police. The charges allege that in this capacity he played a number of important roles, including receiving complaints from the civilian population, coordinating city patrols, investigating crimes, drafting police reports to be transmitted to the Islamic Tribunal, arresting and detaining offenders, questioning suspects, executing punishments, and worked closely with the Islamic Tribunal. According to the Prosecution, he had an important role in the Tribunal’s unfair trials (PTC-I Decision, paras. 724ff and Prosecution closing statements). The defence contests this, underlining that Al Hassan was “une petite sardine” (a low-level clerk obeying orders) that entered the game when the die had already been cast. They argue that he tried to minimise harm to the local population (Defence closing statements). The Defence maintains that Al Hassan made no culpable contribution to the work of the Tribunal, as the Police merely acted as a “letter box,” a neutral actor that would receive complaints.  It was, the defence argues, the Hesbah that would have had a bigger role in the execution of punishments and, more generally, in the work of the Islamic Tribunal.

The Charges

The charges of war crimes and crimes against humanity in this case are numerous. More than any other in front of the ICC before, the case puts rebel governance under the legal microscope. Many interesting points of law are raised by the fact that the AD/AQMI’s institutions were often acting in accordance with rules passed by the group. The case presents several novel legal questions, for example, whether physical punishment inflicted by the group could be charged as the crime against humanity of torture under Article 7(e) of the Rome Statute, or whether it might fall into the exception of “pain or suffering arising only from, inherent in or incidental to, lawful sanctions.” 

Equally, there will unquestionably be a great focus on common Article 3 of the 1949 Geneva Conventions in the judgment. The Court will surely focus on the prohibition of “passing sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilized peoples.” Attention to this provision stems from the OTP’s argument that the Islamic Tribunal in Timbuktu was not regularly constituted and did not afford the indispensable judicial guarantees recognised by international law. In particular, it was not independent and impartial. This question of whether, when, and how an armed group can adhere to this provision has already been examined by the Stockholm District Court in the Sakanh case. But it has never before been looked at by an international criminal tribunal. The Court must address whether armed group law can be considered to be “law,” and what “indispensable judicial guarantees” are and what a “regularly constituted court” is when the entity responsible for providing them is an armed group.

Lurking behind the war crimes charges in this case are several equally interesting and important points of law that must be resolved. Each holds the potential to have significant consequences for our understanding of international humanitarian law (IHL). First, there is the question of whether the relatively few hostilities during the period should bear on whether the crimes were committed during the context of an armed conflict. In fact, the Defence argues there was no armed conflict at all. Second, there is the question of the relevance of the groups’ governance institutions to any examination of the “organsiation” requirement (see here for a preliminary examination of this question). Third, and probably most importantly, the Trial Chamber must examine the knotty “nexus” requirement, indicating when acts committed by armed groups in protracted armed conflict should be considered to fall under IHL and when they should be simply considered to be violations of human rights law. 

The charges also include important crimes relating to gender. In particular, the Court’s judgment must assess the crimes of rape (as a war crime and crime against humanity), forced marriage as a crime against humanity, and sexual slavery (as a war crime and crime against humanity). It is alleged by the OTP that Al Hassan participated in a program of forced marriages between local women and girls and members of the groups that rendered them sexual slaves. It is also alleged that the imposition of Islamic law by the groups deprived victims of liberties and rights suffered most painfully by women and girls, but also the civilian population as a whole. These violations of fundamental rights charged as the crime against humanity of “persecutions.” While the OTP argues that these were largely due to new rules imposed by the AD/AQMI, this is disputed by the Defence. 

Mr Hassan is also charged with participation in the destruction of Muslim mausoleums (a set of facts already considered in the Al Mahdi case). 

Conclusions

In short, the Al Hassan case raises many novel and interesting questions for the Court relating to armed groups and international law. Because the case deals with so many novel issues for the ICC (or even ad hoc international criminal tribunals), we have decided to publish this symposium before the Court issues its judgment. We hope court-watchers, IHL scholars, and practitioners alike will benefit from the preliminary perspectives offered by our expert authors. We thank each of them in advance for their important contributions to our shared field.

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