The War Crime of Sentencing or Execution without Due Process in the Al Hassan Case: The Interpretative Pitfalls Hidden in the Application of the Crime

About the author(s):

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.

1. Introduction

The Al Hassan case is the first-ever case before an international (or hybrid) criminal tribunal dealing with the war crime of sentencing or execution without due process. Mr Al Hassan is charged with the crime as an accomplice under Article 25(3)(2)(d) and/or (c) of the Statute for his alleged involvement, as an important member of the Islamic Police, in the activities of the Islamic Tribunal.

The offence is criminalised in non-international armed conflicts by Article 8(2)(c)(iv) of the Rome Statute as a serious violation of Article 3 common to the four 1949 Geneva Conventions. The provision defines the crime as ‘[t]he passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable’. The provision protects ‘persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause’. 

The war crime of sentencing or execution without due process is interesting not only for its newness within the dock of international criminal tribunals, but also for the questions it raises. As stated by the Prosecution, its interpretation requires judges to address ‘important legal issues which have not yet been considered in detail by international courts and tribunals’. When is the administration of justice related to the armed conflict? What is a ‘regularly constituted court’? What are the ‘all judicial guarantees which are generally recognized as indispensable’? Should the relevant guarantees be the same for states and non-state armed groups? Is it necessary for perpetrators to have some kind of legal knowledge or training? And the list could continue. 

As the short nature of this contribution does not allow a comprehensive analysis of all these questions, this post has two objectives. First, it aims to draw attention to some of the most important interpretative pitfalls hidden in the application of the crime. Secondly, it intends to provide some guidelines to interpret the crime. The wish is that these reflections will be taken into consideration by Trial Chamber X in its upcoming judgement.  

2. The Material Element of the Crime

The Elements of Crimes envisage three scenarios that could satisfy the material element of the crime set out in Article 8(2)(c)(iv). A sentence needs to be passed or an execution carried out: 1) without a previous judgement pronounced by a court; or 2) with a previous judgement delivered: a) by a court that is not ‘regularly constituted’—‘that is, it did not afford the essential guarantees of independence and impartiality’—or b) not affording the ‘judicial guarantees generally recognized as indispensable under international law’. In a footnote, the Elements of Crimes also add that ‘the cumulative effect of factors’ should be considered in assessing whether a person has been deprived of a fair trial.

In another contribution, this author has identified the numerous questions posed by this legal framework. Emphasis is put here on the fact that Trial Chamber X should be cautious in embracing the approach adopted in the confirmation of charges decision. In that decision, Pre-Trial Chamber I relied heavily on international and regional human rights law and jurisprudence to interpret the material element of the crime, in particular, the requirements of independence and impartiality as elements characterising ‘regularly constituted’ courts (paras. 378–80) and the ‘judicial guarantees generally recognized as indispensable under international law’ (paras. 383–84). 

This approach attracts criticism. When assessing whether a court affords the indispensable judicial guarantees the Pre-Trial Chamber deemed a varied array of rights as ‘facteurs déterminants’, including a set of sophisticated ones drawn by the (regional) human rights case law. Some of these rights are not provided by the four  Geneva Conventions of 1949 and their two Additional Protocols among the minimum guarantees stated to be afforded during armed conflicts, nor by the1966 International Covenant on Civil and Political Rights—the ‘golden standard’ to fair trial rights in international human rights law—for example, the right to an adversarial proceedings and the right to a motivated judiciary decision. 

The Pre-Trial Chamber thus seems to have made two assumptions. First, that human rights standards developed specifically for states to apply during peacetime can be directly applicable during non-international armed conflicts to courts operated by non-state armed groups. Secondly, that the violation of (any of) such standards can legitimately satisfy the material element of the war crime of sentencing or execution without due process. Hence, criminalisation is triggered by the failure of non-state armed groups to abide to the highest standards conceived by the most elaborated regional human rights jurisprudence for states in peacetime. The lawfulness and appropriateness to subject non-state armed groups to such standards has not been questioned. No consideration has been given to the peculiarities of non-international armed conflicts and non-state armed groups.  

Article 8(2)(c)(iv) criminalises the failure to afford ‘judicial guarantees generally recognized as indispensable under international law’, thus inviting to a restrictive approach. Expanding the scope of the offence as to criminalise the failure to afford also judicial guarantees that cannot be comprised in the category of the indispensable judicial guarantees has alarming consequences. It undermines the nullum crimen sine lege principle, especially, the principle of strict construction of crimes, protected under Article 22 of the Rome Statute. Moreover, in instances where the expansions results from the application of regional human rights standards that are normally not applicable to the region in which the incidents before the Court arose (e.g., the standards developed by the European Court of Human Rights are not applicable to Mali), it may also pose cultural concerns. For example, adopting an expansive approach of the nulla poena sine lege principle, the Prosecution argued for the unlawfulness of ta’azir crimes, for which punishment is at the discretion of the judge—a typical feature of Islamic law. This jeopardises the universal aspiration of the Rome Statute. 

A more acceptable approach in this case would be looking at Article 6 of the Second Additional Protocol to the Geneva Conventions as the main point of reference to the interpretation of the material element of the crime, as the provision provides the list of minimum judicial guarantees to be afforded during non-international armed conflict by states and non-state armed groups that exercise control over part of a territory. 

3. The Nexus with the Armed Conflict

The conduct underlying the material element of the crime needs to have occurred ‘in the context of’ and ‘associated with’ a non-international armed conflict, as underlined by the Elements of Crimes.

The issue has been addressed already by Katharine Fortin in her post in this symposium. It is of utmost importance to end the fiction’ that all acts committed during an armed conflict have a nexus to the conflict by interpreting the crime’s nexus with the armed conflict in a strict manner. As already argued more in detail by this author, the war crime of sentencing or execution without due process should apply only if there is an actual link between the denying of a fair trial and the armed conflict, namely if the justice system prosecutes, through unfair trials, crimes related to the conflict (e.g. posing security threats related to the hostilities and committing treason) and/or serves the ultimate goal of a military campaign. When justice is administered under the framework of rebel governance activities—hence: a) the justice system deals with ‘ordinary’ criminal matters, civil matters and/or infractions of behavioural codes; b) all individuals are susceptible to being prosecuted and tried; and c) and the aim is to ensure law and order—such activities should not be considered as having a nexus with the armed conflict. Hence, any failure to abide to fair trial standards should not trigger the war crime of sentencing or execution without due process. After all, if states were to deny fair trial guarantees within their governance systems, such violations would amount to mere human rights violations, not war crimes. Otherwise, the definition of war crimes would be blurred and non-state armed groups would be exposed to asymmetric criminalisation. 

Pre-Trial Chamber I avoided delving in this complex matter. Hopefully, Trial Chamber X will not abstain itself from carefully assessing whether Ansar Dine and AQMI justice administration had a nexus with the armed conflict.

4. The Mental Element of the Crime

Within the Rome Statute, the mental element is regulated by Article 30, according to which a person is criminally responsible and liable for punishment only if the crime is committed with intent and knowledge. The Elements of Crime also add a specific further requirement for the war crime of sentencing or execution without due process: the perpetrator needs to have been ‘aware of the absence of a previous judgement or of the denial of relevant guarantees and the fact that they are essential or indispensable under international law’. 

This clarification is crucial. It disapplies element 4 of the Elements of Crimes’ general introduction, according to which, with respect to mental elements involving value judgements, ‘it is not necessary that the perpetrator personally completed a particular value judgement, unless otherwise indicated’. In this way, it puts emphasis on the importance of assessing and proving the requirement of knowledge with reference to both the factual and legal circumstances of the crime, rejecting any assumption on the perpetrator’s awareness. 

If the Elements of Crimes is applied properly, the Trial Chamber will need to make a complex assessment to comprehend whether the perpetrator was aware not only of denials of judicial guarantees (either in the form of a lack of a previous judgement or denial of single rights) but also of the ‘essential or indispensable’ character of such guarantees ‘under international law’. This also means that the perpetrator needs to have had knowledge of the entire criminal proceedings and what happened therein. An attentive case-by-case evaluation is thus needed, especially when the defendant—like Mr Al Hassan—is not the judge who was serving on the bench when fair trial violations occurred, but, rather, is an actor with possible limited knowledge of what was happening in the ‘courtroom’ or with no or limited legal training. 

The Pre-trial Chamber I did not dedicate enough space to the mental element of the war crime of sentencing or execution without due process. This raises concerns. It is in fact fundamental not to interpret the mental element of the crime in a way that nullifies its inherent function—to identify a criminal act (characterised by intent and knowledge) and distinguish it from other types of violations, most notably, mere human rights violations. Overlooking this means obscuring the distinction between human rights violations and international crimes and transforming the International Criminal Court into something it is not and is not supposed to be: a human rights court.

5. Conclusion

As succinctly illustrated, the interpretation of the war crime of sentencing or execution without due process presents many difficulties and pitfalls that have so far been overlooked. The Al Hassan confirmation of charges decision has either ignored many of the crucial problems the interpretation of the crime conceals or has dealt with them in an unsatisfactory way. This has repercussions also on broader classic (and unresolved) debates in international criminal justice, for example, the relationship between international criminal law and human rights law, universalism vs. relativism, the sources and interpretation of international criminal law, and the nexus requirement for war crimes in non-international armed conflicts. 

First and foremost, the wish is that the Trial Chamber X will not abstain itself from engaging with the difficult questions this crime poses. This author also hopes that the Trial Chamber may want to adopt an interpretation of the war crime of sentencing or execution without due process that: i) is consistent with the fundamental principles of legality enshrined in the Rome Statute; ii) is not divorced from the reality of non-international armed conflicts; and iii) takes into consideration that the offence is an international crime, not a mere human rights violation. 

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