Al Hassan blog symposium – Complicity in Torture and the ICC

About the author(s):

Michel Paradis is a leading human rights lawyer and national security law scholar. He has won high-profile cases around the globe, including some of the landmark cases to arise out of Guantanamo Bay for the U.S. Department of Defense, Military Commission Defense Organization. He is a Partner at the international law firm Curtis Mallet-Prevost and a Lecturer at Columbia Law School, where he teaches courses on national security law, international law, the constitution, and the law of war. He has appeared on or written for the PBS NewsHour, CBS, MSNBC, CNBC, C-SPAN, Netflix, NPR, The Atlantic, The New York Times, The Washington Post, The Wall Street Journal, USA Today, Lawfare, Just Security, Articles of War, among other publications. He is the author of the critically-acclaimed Last Mission to Tokyo (Simon & Schuster 2020), about war crimes trials after World War II, and the forthcoming The Light of Battle: Eisenhower, Normandy, and the Birth of the American Superpower (HarperCollins 2024). He is a fellow at the Center on National Security and the National Institute for Military Justice. He was awarded his doctorate from Oxford University, where he was a Campion Scholar, and received his law degree from Fordham Law School in New York.

Al Hassan Ag Abdoul Aziz was charged with war crimes and crimes against humanity before the ICC in 2018 for his alleged role in mass torture, rape, sexual slavery, and other atrocities, while the leader of Ansar Eddine and its short-lived Sharia state in Mali in 2012. After four years of trial proceedings, the prosecution, victims, and defense made their closing arguments this past May and the Trial Chamber presumably remains hard at work in writing its judgment.

In making its case, the prosecution relied upon statements Al Hassan allegedly gave to Office of the Prosecutor (OTP) investigators when he was still detained in a Malian prison in 2018; a time when he credibly alleges that he was being subjected to torture and cruel, inhuman, and degrading treatment at the hands of Malian authorities. Whether the Trial Chamber will ultimately rely on these statements in crafting its judgment presents a profound challenge to the international rule of law that the ICC was ostensibly created to foster.

In considering its obligations as a court and an international law institution, the Trial Chamber would do well to remember Nietzsche’s most famous aphorism from Beyond Good and Evil, “He who fights with monsters should be careful lest he thereby become a monster.” It is a word of caution that people of good conscience often struggle to remember when confronted atrocities on a massive scale. The drive to punish those who victimize the weak is part of the same instinct that impels people toward justice. The danger, though, as Nietzsche saw and which recurs throughout the history of war crimes prosecution, is the temptation to seek justice at all costs, including to justice itself.

Nowhere has that been more recurrent temptation than in the use of evidence tainted by torture and cruel, inhuman, and degrading treatment. A defendant’s confession has been the “queen of proofs” for as long as there have been rules of criminal procedure and the use of coercion to get that piece on the board has a pedigree undoubtedly as long. The Al Hassan trial is unfortunately no exception. This post addresses the legal issues the Trial Chamber must and should reexamine in making its final judgment, specifically whether Al Hassan’s credible allegations of torture compel the Trial Chamber to disregard the statements he made to the OTP. 

Background of torture allegations in Al Hassan case

Before being extradited to The Hague in 2018, Al Hassan was held in Malian custody and, he alleges, subjected to torture by prison officials and officials from Mali’s General State Security Directorate (“DGSE”). These allegations are credible. The State Department’s 2017 Human Rights Report for Mali reported credible accounts of detainees associated with Islamist organizations, like Al Hassan, being “hogtied, beaten, lashed with belts, burned, and repeatedly threatened with death. Detainees stated that they were routinely denied food, water, and medical care.” (p4) And a medical evaluation conducted after Al Hassan was in The Hague documented injuries that were highly consistent with the torture he has described.

While there is no indication that investigators from the ICC’s Office of the Prosecutor (“OTP”) were directly involved in abuse, they did travel to Mali and question Al Hassan on nineteen different occasions, while he remained in DGSE custody. At the time, Al Hassan consented to being questioned, availed himself of the assistance of counsel, and OTP investigators consistently gave him rights warnings, which included the right to remain silent. OTP investigators also made sure to ask him about his conditions of confinement and recounted some of his complaints to the Malian authorities. But, at the same time, Al Hassan remained in DGSE custody, where the DGSE continued to interrogate him, and OTP investigators either had access to the DGSE intelligence reports or suggested to Al Hassan that they did, which encouraged Al Hassan to later claim that he felt the need to stick to the “DGSE script.” (para 25)  In other words, assuming Al Hassan’s allegations of torture are true, were his statements to OTP investigators truly voluntary?

Legal issues examined by Trial Chamber

Two articles of the Rome Statute bear upon this question. The first is Article 55, which states that an individual subject to an ICC investigation shall not be subjected to any form of coercion, torture, or cruel, inhuman, and degrading treatment. The second is Article 69(7), which governs the admissibility of his statements, and which forbids evidence obtained either in violation of the Statute, or internationally recognized human rights, so long as the violation “casts substantial doubt on the reliability of the evidence,” or its use would seriously damage the integrity of the proceedings.

Al Hassan unsuccessfully sought both to dismiss the charges against him and to suppress the evidence the OTP investigators collected while interrogating him, while he remained in DGSE custody. While the “correct” answer to either of these questions is difficult, and not something I will venture to do here, the reasons the Trial Chamber rejected Al Hassan’s arguments in May 2021 were formalistic to the point of sophistry, legally erroneous, and should trouble anyone who wants the ICC to have a credible future for cases precisely like Al Hassan’s.

The crux of the Trial Chamber’s reasoning was its emphasis on the wording of Article 69(7), which “requires not only a breach of the Statute or internationally recognised human rights but also, and importantly, a causal link between the violation and the gathering of the evidence.” From this, the Trial Chamber focused on whether there was a “causal link” between the presumptively unlawful conduct of the DGSE and the statements OTP investigators persuaded Al Hassan to make to them while he was in DGSE custody (para 45). In reaching its conclusion that there was not, the Trial Chamber relied upon one legal error and another dubious inference.

Legal error on burden of proof under Article 69(7)

The legal error had to do with the burden of proof. In the ICC, like any modern court, the burden rests on the proponent of a piece of evidence to demonstrate its admissibility. Arguably, when a party objects that evidence is inadmissible because of Article 69(7), it has been the practice of the ICC Trial Chamber to put the burden on the objector to demonstrate that factual predicate for the objection. But even assuming that practice as a given, the Trial Chamber misunderstood what that practice entails.

In the Mbarushimana case, the Trial Chamber had its first real opportunity to opine on Article 69(7) back in 2011. Because proffered evidence in confirmation proceedings is presumed authentic in the absence of an objection that “casts doubt” upon it, the Trial Chamber concluded that an objection under Article 69(7) had to be supported by “information that would cast doubt on the legality of the … procedures” used to collect the challenged evidence. Notably, this rule was adopted because of the flexibility of the evidentiary rules in confirmation proceedings. But even accepting that this burden of production applies to objections raised at the guilt phase as well, that is all the burden is: a burden of production. Nothing about the text of the rule, its logic, or the values animating it perversely flips the burden of persuasion, so that evidence allegedly obtained by torture becomes presumptively admissible.

The Trial Chamber’s core legal error in the Al Hassan case, therefore, was to overextend this burden of production to also impose on Al Hassan the burden of demonstrating the inadmissibility of the evidence he claimed was obtained by torture. Not only would Al Hassan have to come forward with “information that would cast doubt on the legality of the … procedures” used to obtain his statements, he also would have to demonstrate what the Trial Chamber described as a “causal link between the Statements and any torture/CIDT to which Mr Al Hassan was allegedly subjected to.” The Trial Chamber, in other words, relieved the prosecution of its burden to demonstrate the voluntariness – and therefore admissibility – of Al Hassan’s statements precisely because Al Hassan credibly challenged their voluntariness.

Having thus shifted the burden to Al Hassan, the Trial Chamber made two dubious decisions that led it to the even more dubious conclusion that Al Hassan had failed to demonstrate a “causal link.”

Denial of “voir dire” hearing

The first dubious decision was that the Trial Chamber denied Al Hassan the opportunity to hold an evidentiary hearing, what was called a “voir dire” hearing, in which Al Hassan could question witnesses to meet the burden the Trial Chamber had placed upon him. To be sure, such hearings are more a feature of common law jurisdictions. But it was within the Trial Chamber’s discretion to conduct such a hearing and, having imposed the burden on Al Hassan to prove not only the fact of his torture, but its impact on the voluntariness of his statements to OTP investigators, the Trial Chamber had a heightened duty to let him make his case. And its rationale for denying him that opportunity was the bare claim that the written submissions were “sufficient to make its determinations without hearing live evidence.” (para 18)

I confess to perhaps having a common law attorney’s bias in my assessment of this decision. But the very nature of the questions presented – was Al Hassan being tortured by government officials, were OTP investigators complicit in that torture, and did that torture affect the voluntariness of his statements – is not readily answerable from cold written submissions. The relevant witnesses have every incentive to artfully craft any written submissions, if not outright lie, given that are potentially implicated in crimes. To the extent the ICC already suffers – at least in common law jurisdictions – from the criticism that it too readily engages in “trial by affidavit,” preventing a torture victim from making his case does not engender confidence, nor does it reflect confidence in the trial process by the Trial Chamber.

Approach to ‘causal link’ between alleged torture and OTP statements

The second, and most dubious, decision the Trial Chamber made in ruling against Al Hassan, however, was in setting out what could break the “causal link” between his alleged torture and his statements to OTP investigators. The Trial Chamber focused narrowly on “what measures, if any, the ICC Prosecution put in place to ensure that any possible violations arising from the surrounding context and circumstances did not impact on, or facilitate, their evidence gathering process.” (para 45). And it credited OTP investigators with telling Al Hassan that the ICC was separate from the DGSE, with respecting his right to counsel, with giving him rights warnings, and at least demonstrating the appearance of concern with his conditions of confinement. The Trial Chamber also emphasised that the questioning took place outside the presence of DGSE in a different location than the DGSE used for interrogations.

OTP investigators presumably took these steps in good faith. And under certain circumstances, their doing so would be highly relevant to the question of whether there was sufficient “attenuation” between the violation of Al Hassan’s rights and the voluntariness of his later statements to investigators. But those circumstances involve situations where the question is whether a prisoner’s past treatment renders their future statements involuntary. This is not a situation, in other words, where OTP investigators questioned Al Hassan in The Hague and were distinguishing his present circumstances from those he suffered prior to his extradition from Mali. There was nothing past about the treatment that was designed to overbear Al Hassan’s will under questioning.

The Trial Chamber seemed almost willfully blind to the most obvious problem with its focus on the OTP investigators’ efforts to distance themselves from what the DGSE was doing. Al Hassan had no legitimate basis to believe them. Like any rational prisoner, he not only would have concluded, but should have concluded, that telling Jeff what he wanted to hear by day was important because Mutt was waiting for him that night. Partly due to its erroneous shifting of the burden, the Trial Chamber erroneously disregarded that the relevant question is what OTP investigators did to distance Al Hassan from what the DGSE was doing. And the short answer, unfortunately, appears to be nothing.

The Trial Chamber attempted to justify turning a blind eye to OTP’s potential complicity in Al Hassan’s torture by throwing up its hands, since “ICC investigators are dependent on the cooperation of States to conduct investigate activities” and have limited control over the conditions and circumstances of those activities (para 42). Perhaps. But they have control over their own conduct and the parties with whom they are willing to collaborate, and under what circumstances, in the important task of seeking justice.

The unwillingness to allow law enforcement to be complicit in the torture of a suspect is precisely why Robert Muller, when head of the FBI in the aftermath of the September 11th attacks, forbade the FBI from questioning detainees being held in the so-called “black sites” being run by the CIA. It also has led the military judges in the Guantanamo military commissions, to reject the use of so-called “clean teams,” law enforcement agents who ostensibly had no direct role in a detainee’s abuse, but who nevertheless relinquished custody of the detainee to those that did. The fact that the Guantanamo military commissions, with their notoriously questionable rules of evidence, have been able to see this question clearly makes the Trial Chamber’s blithe willingness make the ICC complicit in torture all the more troubling.

Conclusions

Having admitted the evidence, in my view erroneously, the Trial Chamber still has time to reject it, either by revising its interpretation of the law or simply not relying upon it in its ultimate judgment. To be clear, under the correct burden of proof and perhaps with a fuller evidentiary showing, it is entirely possible that ICC prosecutors could show that some or even all of the nineteen days’ worth of statements Al Hassan gave to OTP investigators in Mali were voluntary and reliable. But little in the Trial Chamber’s ruling on the issue supports that conclusion. And that should be a major source of concern, not just for those observing the Al Hassan case, but for those who care about the integrity and viability of the ICC as a still fledgling institution.

The temptation to rely upon – or at least turn a blind eye toward – confessions tainted by torture is obvious. History is replete with examples. But since at least World War II, the use of coerced confessions in war crimes prosecutions has been a war crime itself. The Allies prosecuted Japanese lawyers and judges, in part, for conducting trials based upon confessions tainted by torture. Those precedents were an impetus for the “regularly constituted court” guarantee in the Geneva Conventions of 1949.

But even before then, the United Nations held themselves to this rule in cases like the Malmedy Massacre Trial. Forty-three death sentences were imposed on members of the Nazi Waffen-SS for the murder of hundreds of Allied POWs and civilians. But a post-trial investigation ordered by the U.S. Secretary of War, Kenneth Royall (who was no stranger to the trial of Nazi war criminals), revealed the trial had been tainted by the use of evidence possibly obtained by coercion against the Waffen-SS prisoners. This led, not to the turning of a blind eye or parceling inquiries into whether there was a “causal link,” but to convictions being overturned and none of the death sentences being imposed.

The prohibition on the use of evidence tainted by torture goes back even to Rome, a society that had few compunctions about brutality. Under the Code Justinian, the use of torture to procure evidence was generally permissible only against slaves, was severely constrained when turned against citizens, and was forbidden against soldiers and citizens of high social status. On the assumption that the world long ago abandoned caste in favor of the equal dignity of all, it is therefore dispiriting to think that the Rome Statute is being interpreted as more tolerant of barbarism than the statutes of Rome.

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