About the author(s):
Hannes Jöbstl is a Legal Advisor at the Council of Europe where he works on war reparations and the establishment of a Claims Commission for Ukraine. He previously worked as an Associate Legal Officer at the International Court of Justice and the United Nations Office in Vienna. Hannes holds law degrees from the University of Oxford, University College London and the University of Graz. His research interests are international dispute settlement, international humanitarian law and reparations under international law.
To say that the ICC’s Trial Chamber Judgment in the Al Hassan case has been eagerly awaited by scholars of international humanitarian law (IHL) and international criminal law (ICL) would be an understatement. Indeed, the case touches upon a plethora of cutting-edge questions, including in relation to conflict classification, the nexus requirement, rebel governance, gender persecution and the role of religion and cultural values in ICL. Among many other things, the decision also marks the first conviction ever by an international criminal court or tribunal for the passing of sentences without a regularly constituted court affording all the judicial guarantees necessary as indispensable in a non-international armed conflict (NIAC). In recent years, this peculiar war crime has featured prominently in domestic proceedings and academic research but had little to no international precedents.
The Islamic Court in Timbuktu
Al Hassan Ag Abdoul Aziz was a member of Ansar Dine, an armed group that together with al-Qaida in the Islamic Maghreb (AQIM) governed the city of Timbuktu between 1 April 2012 and 28 January 2013. As part of their rule over the city, the two groups established a morality police (Hesbah), as well as a general Islamic Police. Moreover, they set up an Islamic Court, empowered to impose harsh corporal penalties such as flogging and amputations. Al Hassan held a high-ranking role (see Trial Judgment, para. 1675) in the Islamic Police. He drafted police reports to be sent to the Islamic Court, conducted investigations and arrests, and supervised corporal punishments. The majority of the Trial Chamber (Judge Mindua dissenting) held that via these actions Al Hassan had contributed (under Art. 28(3)(d) ICCSt) to the war crime of passing of sentences without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees recognized as indispensable (Article 8(2)(c)(iv) ICCSt).
The Denial of a Fair Trial as a Distinct War Crime
The practice of prosecuting the denial of a fair trial as a distinct war crime in international armed conflict (IAC) can be traced back to the jurisprudence of the various post-Second World War military tribunals. Allied courts, tribunals and military commissions tried German and Japanese suspects for their role in unfair judicial proceedings and sentences imposed on civilians and POWs. The criminalisation of the denial of a fair trial in NIACs, on the other hand, developed much later as a consequence of the more general extension of individual criminal responsibility to serious violations of Common Article 3 (CA 3) under customary law. CA 3 prohibits “[t]he passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”. When, in 1995, the ICTY Appeals Chamber held that customary international law imposes such responsibility onto individuals, this automatically paved the way for extending criminal liability in NIACs to the “passing of sentences and carrying out of executions without a regularly constituted court”. The Rome Statute subsequently codified this development in Article 8(2)(c)(iv).
What Constitutes a Sentence?
A denial of fair trial under Article 8(2)(c)(iv) can take three forms (see Trial Judgment, para. 1157). The first occurs when a victim is sentenced without having been tried in any kind of judicial proceeding at all. A crucial question in this regard is what constitutes a “sentence”? According to the ICRC’s most recent commentary on CA 3 , a “sentence” should be defined as “the judgement that a court formally pronounces after finding a criminal defendant guilty” or “the punishment imposed on a criminal wrongdoer” (para. 712). The Trial Chamber held that the definition of “sentence” encompasses both(paras. 1162 and 1478). This is particularly relevant in this case because the Islamic Police did not only carry out punishments ordered by the Islamic Court, but also imposed punishments autonomously (see para. 1079).However, not everyone can simply pronounce or carry out a sentence (and thereby escape criminal liability for murder, serious injury or cruel and inhumane treatment). Already the Pre-Trial Chambernoted that the sentence in question must have been passed by “an authority empowered, by the system in place at the material time […] regardless of whether that authority is referred to as a court” (para. 363). The Trial Chamber followed this assessment and held that “[w]hat matters is whether, in context and considering all the relevant circumstances at hand, the persons carrying out the punishments had some form of authority to carry out punishments” (para. 1481). However, this does not mean that “that specific orders or instructions need to be formally or officially given to the persons carrying out the punishments” (para. 1495).
The Notion of “Independence” in the Case of Courts Operated by Armed Groups
The second form of a war crime under Article 8(2)(c)(iv) occurs when a sentence was passed by way of a judgment rendered by a court that was not “regularly constituted”, meaning that “the court lacked the essential guarantees of independence and impartiality” (para. 1157). As has been noted elsewhere, this is a deliberate departure (see Confirmation of Charges, para. 377) from the established meaning of the term “regularly constituted” under IHL, which would normally be equated with the requirement that a court or tribunal must be “established by law”. The Trial Chamber appears to have been mindful of this discrepancy when it noted that independence and impartiality are viewed as the requisite attributes for a court to be regarded as “regularly constituted” within “the meaning of the Court’s statutory framework” (para. 1169).
IHL does not contain a definition of “independence” for the purpose of judicial proceedings. Under IHRL, on the other hand, the independence of courts is usually interpreted as the ability to decide cases without pressure or influence of the executive branch. However, armed groups rarely establish the sort of clear-cut separation of powers commonly found in constitutional States and their political and combat wings are often intertwined. Interestingly, the Al Hassan Trial Chamber explicitly acknowledged this problem and noted that “a court established by a non-state actor may not be able to successfully comply with the same level of independence required of a State court” and that “reasonable flexibility” should be applied in assessing an armed group’s capacity to comply with this standard (para. 1173). While this rejection of a State-centric approach should be welcomed, one might ask how the wording chosen by the Trial Chamber impacts on the concept of belligerent equality in NIACs. Instead of endorsing an ostensibly lower standard for armed group courts, the Trial Chamber could have held that the essence of “independence” is that a body charged with the passing of sentences must be independent of the persons or body that created the applicable rules, and that it must be independent of those whose conduct is monitored (see e.g. here, p. 132 or here, para. 716). This test could then be applied to armed groups and State authorities alike.
Ultimately, the Trial Chamber found that the Islamic Tribunal was neither independent nor impartial, noting that the “control by the executive on the judiciary was present from the inception of the Islamic Court until the end, with a continuous and permanent presence involving interferences with the way the judges were selected, the way judgments were deliberated on, including the sources referred to and who had the final word, and the sentences imposed” (para. 1501).
The Judicial Guarantees Recognised as “Indispensable”
The third type of a denial of fair trial under Article 8(2)(c)(iv) occurs when a sentence was passed by a regularly constituted court (i.e. independent and impartial), but that court did not afford “all other judicial guarantees recognised as indispensable under international law” (para. 1157). The crucial question is which judicial guarantees are, in fact, “indispensable” in the sense of CA 3 and Article 8(2)(b)(c)(iv) ICCSt. Here, the Trial Chamber took a different approach than the Pre-Trial Chamber. The Pre-Trial Chamber invoked not only Article 6 AP I and Article 75 AP I, but also referred to human rights law under Article 21(3) of the ICC Statute, including regional human rights instruments such as the European Convention on Human Rights (ECHR) (para. 383). As has been pointed out elsewhere, it is not entirely clear why the ECHR should have any relevance in determining the judicial guarantees applicable to a trial conducted by an armed group in Mali. Based on these instruments, the Pre-Trial Chamber produced a list of guarantees that it considered “decisive” (para. 384). This list includes the right to appeal a criminal conviction and the principle of ne bis in idem, both of which are not among the guarantees listed in Article 6 AP II, the pertinent treaty instrument regulating fair trial rights in NIAC.
The Trial Chamber, on the other hand, took a narrower approach and confined itself to stating that “the guarantees listed in Additional Protocol II constitute the minimal indispensable guarantees that fall within the meaning of Article 8(2)(c)(iv) of the Statute” (para. 1178). The Trial Chamber justified this approach by noting that Protocol II “supplements and develops” CA3 and “provide[s] valuable indications to help explain the terms of Article 3 on [judicial] guarantees”. This reasoning ignores the fact that AP II has a different threshold of application than CA 3. However, given that most of AP II has meanwhile become part of customary law applicable in all types of NIAC, this approach does not seem unreasonable.
Modes of Liability and Personal Scope of the Crime of Denial of Fair Trial
Another interesting aspect of the decision is the Trial Chamber’s approach to the personal scope of the crime and the specific mode of liability applicable to Al Hassan’s actions. This part of the judgment is extremely complex and at times difficult to comprehend given the various partial dissents. The Defence had argued that Article 8(2)(c)(iv) penalises only the participation in the passing of unfair sentences or in executions based on such sentences but does not cover personal participation in the implementation of penalties, other than executions (Defence Brief, para. 405). The Trial Chamber was unconvinced and the majority held that “given his contribution to the collaborative system which facilitated the work of the Islamic Court” (para. 1701) Al Hassan is criminally responsible under Article 25(3)(d) of the Statute for contributing to the sentencing without due process (paras. 1704-1706). In other words, even though the carrying out of punishments other than executions is not penalised by Article 8(2)(c)(iv), the Trial Chamber considered that a contribution to the carrying out of such punishments constitutes a contribution to the sentences upon which the punishments are based.
Al Hassan’s main contribution to the punishments ordered by the Islamic Court seems to have been the transfer of the convict to the punishment site (para. 1078). In a few isolated instances, Al Hassan seems to have personally meted out flogging (although the evidence is somewhat contradictory as to whether this punishment had indeed been ordered by the Islamic Court, see paras. 762 and 1586). Apart from that, Al Hassan’s involvement was limited to the pre-trial phase, namely the investigation of alleged crimes, the undertaking of arrests and interrogations, and the writing of police reports. However, as Judge Akane points out in paragraph 93 of her separate opinion, the concrete impact of the Police reports written by Al Hassan on the proceedings before the Islamic Court was ‘somewhat limited, remote or unknown in the specific cases at hand’. It is arguable that even under the somewhat low threshold of Article 25(3)(d) of the ICCSt, the contribution to a crime must be “substantial” or at least “significant” (see e.g. here, pp. 1227-1228). Yet, while acknowledging that other Chambers (see e.g. here, paras. 276-277) had come to a different conclusion, the Trial Chamber held that that the Statute does not contain a specific threshold for the contribution of a crime under Article 25(3)(d) (para. 1243). Would Al Hassan’s overall contribution have been sufficient for a conviction had the Trial Chamber applied the “substantial” or “significant” contribution test? Perhaps, but his conviction for this particular crime leaves a somewhat bitter aftertaste and the feeling that the Trial Chamber went for the “petite sardine”.
Conclusions
In conclusion, the Trial Chamber’s Judgment constitutes a crucial development in the case law on the denial of a fair trial as a war crime. While it largely confirmed the findings made by the Pre-Trial Chamber in its Confirmation of Charges decision, the Trial Judgment’s nuanced approach with regard to the type of judicial guarantees applicable, as well as their interpretation in the complex reality of an armed group is a welcome addition. Nevertheless, Al Hassan’s relatively minor contribution to the unfair trials conducted by the Islamic Tribunal lie at fringes of what should be criminally relevant. There are many other aspects of the decision that cannot be analysed here for the sake of brevity (for example the Chambers (non)analysis of the specific mental elements of Article 8(2)(c)(iv) or the approaches taken in the various separate opinions). However, it is clear that this decision will occupy scholars for years to come.