About the author(s):
Dr Antonio Coco is a Senior Lecturer at Essex Law School, University of Essex, specializing in public international law, particularly the legal implications of emerging technologies such as artificial intelligence and cyberspace. Dr Coco is a founding member of the Oxford Process on International Law Protections in Cyberspace and serves on the Sino-European (China-EU) Expert Working Group on the Application of International Law in Cyberspace. His monograph, "The Defence of Mistake of Law in International Criminal Law: A Study on Ignorance and Blame", was published by Oxford University Press in 2022. He holds a PhD in Law from the University of Geneva, Switzerland, and is admitted to practice law in Italy.
The verdict in the trial of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (‘Al Hassan’) by the International Criminal Court (ICC) has sparked significant debate. Al Hassan, a former commissioner of the Islamic police during the occupation of Timbuktu by the armed groups Ansar Dine and Al-Qaeda in the Islamic Maghreb (AQIM), faced 14 charges of war crimes and crimes against humanity. Convicted on eight counts — including the crime against humanity of torture, the war crime of torture, the war crime of passing of sentences without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable, and the crime against humanity of persecution on religious grounds — he was found not guilty on other charges, including those related to the crime against humanity of persecution on gender grounds. The acquittals were met with disappointment (see, e.g., here and here).
Much of the controversy stems from Judge Mindua’s decision to accept the defendant’s plea of duress on all counts. For Mindua, Al Hassan’s actions were dictated by the coercive system within which he operated. In contrast, the other two members of the Trial Chamber (Judge Akane and Judge Prost) both rejected the credibility of the defendant’s plea. For the majority, Al Hassan was an active and willing participant in the crimes, particularly given his prominent role as commissioner of the Islamic Police. However, the combined effect of Judge Mindua’s findings on duress and Judge Akane’s dissent regarding the presence of required elements for certain crimes (see here) ultimately resulted in acquittals on some of the charges, including the crimes against humanity of sexual slavery, rape, and other inhumane acts in the form of forced marriage (see commentary on these and other charges here).
Duress
Of note, Judge Mindua’s interpretation of the defence of duress seems to differ significantly not only from the positions of Judges Akane and Prost but also from established ICC jurisprudence on duress and other relevant case law concerning duress as a defence against war crimes and crimes against humanity. Under Article 31(1)(d) of the ICC Statute, duress may exclude criminal responsibility if three cumulative conditions are met: i) there is an imminent threat of death or serious bodily harm to the defendant or another person; ii) the defendant’s conduct is necessary and reasonable to avoid the threat; iii) the defendant does not cause harm greater than the harm they seek to avoid. The defence is unavailable if the defendant voluntarily brought about the situation which eventually lead to duress, placing themselves under coercion (in this sense Al Hassan Trial Judgment, § 1744; Prosecutor v Erdemovi? (Judgment, Separate and Dissenting Opinion of Judge Cassese) IT-96-22-A (ICTY, 7 October 1997) §§ 14-16, citing in fn 10 a string of post-World War II which list the conditions for the defence to be available, including in particular US Military Tribunal sitting at Nuremberg, US v. Otto Ohlendorf and others (‘Einsatzgruppen’ case), 10 April 1948, TWC, Vol. IV, 411-589, at 471 and 480-81; US Military Tribunal sitting at Nuremberg, US v Wilhelm von Leeb and others (‘High Command’ case), 27 October 1948, Trials of War Criminals (US Government Printing Office, Washington D.C., 1950, hereinafter TWC), Vol XI, 462–697, 509; and Supreme Court of Israel,Attorney General of the Government of Israel v. Eichmann, 29 May 1962, 36 ILR 277, at 318).
The defence is applicable only when the defendant could not reasonably avoid the threat, meaning that a reasonable person in similar circumstances would have succumbed to the pressure and engaged in the criminal conduct to avoid the threatened harm (Albin Eser and Kai Ambos, ‘Article 31 — Grounds for Excluding Criminal Responsibility’ in Kai Ambos (ed), Rome Statute of the International Criminal Court: Article-by-Article Commentary (4th edn, Beck/Hart 2022) 1374, mn 55). However, it could be argued that the expected standard of behaviour in the face of threats is elevated for individuals in certain professions, including soldiers (or, e.g., police officers), due to their roles and official responsibilities (ibid.). The requirement to act ‘reasonably’ to avert the threat appears to point out to the objective proportionality of the defendant’s behaviour (ibid 1375, mn 57), clarifying that subjective perception of proportionality by the defendant themselves would not be enough to exclude criminal responsibility (ibid 1375, mn 57).
An open question in international criminal law has been whether it is conceivable for a defendant to invoke the defence of duress when the threat to their life was permanent or institutionalized, due to the defendant’s membership in an organization with a brutal system of discipline. The availability of the defence in such cases has been explicitly rejected by the ICC in the Ongwen case (Ongwen Trial Judgment, §§ 2581 ff.). The Al Hassan Trial Chamber’s Majority followed this path. At § 1743 of the Trial Judgment, they persuasively noted that the accused must face an imminent threat of death or serious bodily harm at the time of their conduct for a duress defence to apply: ‘[a] merely abstract danger or simply an elevated probability that a dangerous situation might occur — even if continuously present — does not suffice’ (Al Hassan Trial Judgment, § 1744; Ongwen Appeal Judgment, § 1423). The Majority rejected Al Hassan’s duress defence, concluding that no evidence linked an imminent threat of death or serious harm to his actions They emphasized that Al Hassan voluntarily joined Ansar Dine/AQIM, aware of their goals and, thus, could not claim duress for risks he willingly exposed himself to (§ 1755). While the defence argued that leaving the group posed life-threatening risks, the Majority found no evidence that Ansar Dine/AQIM’s disciplinary measures involved imminent death or severe harm for non-compliance. Consequences for dissent included imprisonment or expulsion, rather than lethal punishments (§ 1756). Hypothetical threats raised by the defence, such as being treated as a traitor or forced into exile, were not deemed sufficient to meet the threshold of imminent, severe harm under Article 31(1)(d) (§ 1759). Furthermore, financial or logistical barriers to leaving Ansar Dine did not constitute the specific, imminent threats required for a valid duress defence (§ 1761).
By contrast, Judge Mindua rejected the Ongwen approach and the Majority’s finding, judging it to be too narrow a reading of the circumstances giving rise to an exonerating plea of duress. In particular, he contended that the imminence of a threat could consist of a ‘persistent general state of urgency’, provided it is objective (“à mon sens l’imminence de la menace peut être un état d’urgence général persistant qui doit être cependant objectif”, § 109). This is precisely the situation in which Al Hassan, according to Judge Mindua, found himself within Ansar Dine — joining the organization to protect himself and his loved ones from AQIM’s violence.
One might wonder whether such a broad interpretation of the circumstances leading to duress risks granting carte blanche to high-ranking perpetrators who are integral to violent regimes. Unlike Erdemovi? (whose case Judge Mindua references in his opinion), who was a low-ranking soldier, Al Hassan held a senior position in the Islamic Police and actively participated in enforcing its violent policies, including forced marriages and flogging (as noted also by O’Brien, Maloney, and Oosterveld). Al Hassan’s age, education, and rapid rise to power contradict the characterization of him as a young and timid individual coerced into compliance (again, as already noted by O’Brien, Maloney, and Oosterveld). Crucially, Judge Mindua did not provide any concrete evidence of the serious bodily harm or death Al Hassan would have faced had he chosen to relinquish his duties within Ansar Dine and leave the group. He noted simply that Al Hassan was under a constant and objective threat to his physical safety or that of his relatives, which it could have materialised at any moment (Judge Mindua’s Opinion, § 113). On the contrary, Judge Prost noted, in her separate and partly dissenting opinion, that ‘There is not a scintilla of evidence that Mr. Al Hassan or any member of Ansar Dine/AQIM faced any form of compulsion to commit or contribute to these violent acts.’ (Judge Prost’s Opinion, § 18).
Mistake of Law
A second contentious defences-related aspect of the judgment was Judge Mindua’s decision to accept the plea of mistake of law to acquit Al Hassan with respect to flogging as conduct charged with respect to some of the counts. The expression ‘mistake of law’ designates a false or erroneous representation of a legal rule, or its ignorance (as I have explained here). Apart from mistakes concerning the existence itself of the rule (erreur sur l’illiceité or Verbotsirrtum), ‘mistake of law’ can also designate ignorance or misunderstanding of a ‘legal’ or ‘normative’ element of a crime (erreur de droit sur les faits or Tatbestandsirrtum), i.e. a material element of the crime that needs not only be perceived through human senses but interpreted in accordance with an applicable legal rule. A mistake of law, thus, can be linked to the erroneous evaluation of a fact due to the misinterpretation or ignorance of a certain legal rule. Mistake of law was not considered to be a defence at the Nuremberg and Tokyo trials, nor at the ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL). The ICTY Trial Chamber, in Prosecutor v Hartmann, stated that a person’s misunderstanding of the law does not excuse a violation (Prosecutor v Hartmann (Judgement on Allegations of Contempt) IT-02-54-R77.5 (ICTY, 14 September 2009) §§ 63-66). However, the ICC Statute, at Article 32(2), leaves space for ignorance or mistake on the law to exclude criminal responsibility as part of superior orders (Article 33 ICC Statute) or if the mistake negates the presence of the required mens rea. In the latter case, the exonerating effect of mens rea-negating mistakes of law is due to the fact that several crimes under the ICC jurisdiction require knowledge of a legal element. For example, the war crime of ‘wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial’ under Article 8(2)(a)(vi) ICC Statute requires knowledge of the legal rights involved.
Judge Mindua argued that Al Hassan believed his actions with respect to floggings aligned with Sharia law, which he perceived as lawful, and therefore could not reasonably be expected to know they constituted criminal acts (Judge Mindua’s Opinion, §§ 99-102). Whilst he appears to be well-aware of the limits of the defence of mistake of law within the ICC Statute (ibid. §§ 97-99), his dissenting opinion does not specify which elements of the crimes charged against Al Hassan required knowledge of the law to establish criminal responsibility. Instead, his reasoning appears to rely on a broader claim that Al Hassan could not have recognized the unlawfulness of his own actions. However, such a claim clearly lacks exonerating value under the ICC Statute, as explicitly stated in the first sentence of Article 32(2). Considerations about his genuine belief in the lawfulness of Sharia law are better reserved for the sentencing stage, as a potential mitigating circumstance.
Looking Forward
Judge Mindua’s expansive interpretation of duress has significant implications for international criminal law. By reducing the threshold of threat required for the defence to apply, his approach risks creating a loophole for high-ranking perpetrators who operate within institutionalized coercive systems. By contrast, following the Ongwen approach, the majority reaffirmed the principle that even within oppressive systems, individuals retain agency and should be held responsible for their actions.
As appeals against the Trial Judgment have been discontinued, duress and mistake of law may not be revisited in the Al Hassan case. However, these legal questions will remain central to future decisions by international criminal tribunals. The balance between recognizing the realities of coercive environments and maintaining individual accountability will shape the development of international criminal law in the years to come.