About the author(s):
Raphaël van Steenberghe graduated in law and philosophy from the University of Louvain (UCLouvain) in 2001 and 2002. He also holds an LL.M. in international law from Cambridge University (UK). He obtained a doctorate in law at UCLouvain. His Ph.D. thesis dealt with self-defence under public international law. He carried out postdoctoral research on several topics, including the obligation to extradite or prosecute international crimes, at New York University (USA), the Geneva Academy of Humanitarian Law (Switzerland) and Columbia University (USA). Since 2014, he is a FNRS Research Associate and Professor at UCLouvain. He founded the International Law of Armed Conflict Team (ILOAC-T) in 2016. His areas of expertise include public international law, the law on the use of force (jus ad bellum), international humanitarian law, human rights in armed conflict, international criminal law and international environmental law in armed conflict. He is the author of numerous articles and books, including La légitime défense en droit international public (Larcier, 2012) and Le droit international humanitaire comme régime spécial de droit international? (edited volume, Bruylant, 2013).
On 30 September 2019, the Pre-Trial Chamber of the International Criminal Court (ICC) confirmed, inter alia, the charge of war crime of passing sentences without due process against Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (Al Hassan). The accused was an alleged member of the Islamic police created by the AQMI/Ansar Dine coalition that took control over certain localities of Northern Mali in April 2012, including the city of Timbuktu and its region. He was allegedly involved in the work of the Islamic Tribunal set up by the armed group coalition for prosecuting conduct contravening their strict religious laws. The Islamic Tribunal rendered numerous judgments and sentenced many persons to corporal punishments, including flogging, lashes and amputations. The Tribunal operated until January 2013, when the armed groups were pushed back by Malian authorities supported by the French Army.
In its 26th June 2024 judgment, the ICC Trial Chamber X reached the same conclusion as the Pre-Trial Chamber. Al Hassan was convicted for, inter alia, the war crime of passing sentences without due process in relation to the same facts. Although the conclusions were the same, the reasoning was different. This post intends to showcase these differences by focusing on the fair trial guarantees (1) and examine the merits of the Trial Chamber’s judgement in this respect (2). It also explains how fair trial guarantees, which armed groups’ courts must afford, may be addressed in light of a general theoretical framework on the evolution of the regulation of armed conflicts through the impact of external branches of international law (3)
1. Differences in reasoning
The main difference between the trial judgement and the confirmation decision is that the judgment takes into account the potential limitations of armed groups’ capabilities in order to identify fair trial guarantees that are realistic. These guarantees included statutory guarantees, requiring that the armed groups’ courts must be ‘regularly constituted’, which, according to both the Pre-Trial and Trial Chambers, must be independent and impartial. They also included procedural guarantees, requiring these courts to afford all other indispensable judicial guarantees.
Statutory guarantees
In its 2019 decision, the Pre-Trial Chamber relied on the consistency test with International Human Rights Law (HRL), contained in Article 21(3) of the Rome Statute, to use that law as a standard for ‘fleshing out’ the undefined statutory guarantees provided in the Statute (para. 378). This interpretative process resulted in quite demanding guarantees for armed groups, especially with respect to the requirement of independence. The Pre-Trial Chamber did not proceed with any actor-specific adaptation of the human rights interpretative standards, although these standards were originally drafted to apply to States and their courts. The Pre-Trial Chamber, indeed, had required a strict separation of powers. It asserted that a court must be independent ‘vis-à-vis the other powers, that is, the executive and the legislature’ and added that ‘[t]he Human Rights Committee, for example, has considered that a situation where the functions and competences of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal […].’ (para. 379).
By contrast, the Trial Chamber acknowledged 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.’ (para. 1173) As a result, it considered ‘that reasonable flexibility should be applied in assessing non-state armed group’s capacity to adhere to these standards [and that in] line with this approach, […] the independence requirement does not necessarily preclude from having executive branch members on the bench, as long as “the procedures in place ensure” that the judges “perform their functions independently and impartially”.’ (ibid.).
Judicial guarantees
As the Rome Statute does not list the judicial guarantees either, the Pre-Trial Chamber first referred to Article 21(1)(b) to identify these guarantees by relying on the relevant provisions of the law of armed conflict (LOAC), especially Article 6(2) of Additional Protocol II (APII) (para. 383). It then turned again to Article 21(3) to interpret these LOAC guarantees in light of HRL and incorporated the entire relevant human rights regime in the guarantees without any adaptation (ibid.). That regime includes certain human rights that may hardly be complied with by any armed group, such as the right for the accused to take proceedings before a court to decide on the legality of the accused’s deprivation of liberty (para. 384).
The Trial Chamber did not make the same mistake. It simply referred to the guarantees mentioned in Article 3 common to the four Geneva Conventions (CA3) and listed in Article 6(2) of Additional Protocol II – although it did not refer to Article 21(1)(b) of the Rome Statute to justify its reference to LOAC (para 1176). As provided under APII, those guarantees are normally realistic for any armed group able to establish and run courts, at least for those fulfilling the conditions set out in Article 1 of APII.
2. Merits of the trial judgement
Although one of the judgement’s main strengths is to envisage guarantees that are realistic to armed groups’ courts, it is not devoid of criticism, especially in relation to the independence requirement. Firstly, while relying on both the ICRC Updated Commentary, in particular on CA3, and the Human Rights Committee’s General Comment n°32 to interpret the statutory guarantees (footnotes 3888, 3889, 3891-3993 and 3895), the Trial Chamber did not provide clear guidance on how human rights standards may be used to interpret the Rome Statute. Acknowledging the silence of the Statute and the Elements of Crimes on the notions of independence and impartiality, the Trial Chamber broadly stated that ‘pursuant to Article 21 of the Statute a chamber can refer to “customary and conventional international law regardless of whether any lacuna exists, to ensure that is fully consistent with international law”.’ (para. 1171). The quoted terms come from a well-known jurisprudence, namely the Ntaganda Appeals decision on the war crimes of rape and sexual slavery committed by armed groups against their own members. Yet, in this decision, reference was made to both the chapeaux of the relevant war crimes provided in the Rome Statute and the Introduction to the Elements of Crimes for article 8 of the Statute only in order to use LOAC, not HRL (para. 53), to interpret the Rome Statute on the status requirement issue.
Secondly, the Trial Chamber did not explain the legal process whereby it lowered the level of independence required for States’ courts under HRL to make it more realistic for armed groups. It merely restated the Defence argument that ‘the requirement of “independence” should also consider how [non-state actors] have a more “fluid” and “integrated” structure’, and it considered that ‘reasonable flexibility should be applied in assessing non-state armed groups’ capacity to adhere these standards’ (para. 1173). The lack of clearer guidance on lowering the independence requirement for armed groups is detrimental to legal certainty and remains difficult to reconcile with the nullum crimen sine lege principle. Admittedly, the Chamber referred in that respect to the ICRC Updated Commentaries, in which the ICRC argues for the application of the principle of systemic integration, based on Article 31(3)(c) of the VCLT, to guide any interpretation of LOAC norms in light of relevant HRL provisions. However, in these commentaries, the ICRC does not elaborate on how such systemic interpretation concretely operates. It merely makes a few general observations that echo those already made by the International Criminal Tribunal for the former Yugoslavia on that issue in the Kunarac case (para. 471), notably that ‘human rights law and interpretations can[not] be transposed mechanically to humanitarian law provisions, and differences [must] be pointed out where relevant.’
Thirdly, it remains unclear whether the lower standard espoused by the Trial Chamber only applies to armed groups. This would run against the principle of equality between belligerents. The Chamber, indeed, justified this standard only in relation to the reality of armed groups’ structures which are different to States (para. 1173). Moreover, it referred to developments contained in the ICRC Updated Commentaries that seemgly contradict the principle of equality between belligerents (footnote 3891). While indicating that ‘[h]uman rights bodies have stated that [statutory guarantees] can never be dispensed’, those ICRC developments indeed emphasize that the ‘interpretation given to [those guarantees] by these bodies is also relevant in the context of common Article 3, at least for courts operated by States authorities”. Those last terms suggest that the interpretation of the LOAC guarantees in light of HRL would only be valid for States, not armed groups. This would involve asymmetrical LOAC obligations, with States being constrained by the more demanding requirements under LOAC. This contrasts with the detention guarantees that the ICRC identified in its study on customary IHL with respect to non-international armed conflicts. The ICRC considered them as applying to both States and armed groups although those guarantees are mainly imported from HRL and some of them, like the habeas corpus requirement, may prove unrealistic for armed groups.
Fourthly, the lower standard identified by the Trial Chamber is arguably too general in scope. The Chamber did not take into account the variety of armed groups. Some of them are the military wings of non-state actors, like the Houthis or the Democratic Autonomous Administration of North and East Syria, that have a State-like structure with a division of powers. Therefore, they could feasibly comply with a higher standard of independence, which is similar to that of States. The Chamber lowered the human rights standard too much with respect to those groups. As argued in detail elsewhere and briefly explained below, the best way to accommodate that standard with any type of armed group, when incorporated into the corresponding LOAC guarantee, is to phrase it as an obligation of conduct. This means that all the belligerents, including non-state actors, must comply with the highest standard of independence – such as that resulting from the incorporation by the Pre-Trial Chamber of HRL into the LAOC guarantee without any adaptation – but only to the maximum extent feasible. In other words, if an armed group has the material capability of complying with that highest standard, what must be assessed in light of all the circumstances ruling at the time, it must respect a strict separation of powers and cannot put members of the executive or military on the bench. Otherwise, it must at least respect the lower standard identified by the Trial Chamber. Obligations of conduct are well-known in international law and are already provided in LOAC, including in relation to non-international armed conflict, such as in Article 5(2) of APII. Provided that they are coupled with core minimum standards, like in Article 5(1) APII, they have the advantage of providing enough protection and accommodating the different levels of capability of the parties to an armed conflict, while preserving the principle of equality between the belligerents.
3. A solution anchored in a general theoretical framework
The issue of the fair trial guarantees that armed groups’ courts must afford is part of the broader issue of the evolution of the regulation of armed conflict through the impact of branches of international law outside LOAC. These branches are not limited to HRL and include other areas of international law like international environmental law—recently considered to regulate aspects of armed conflict relating to their subject matter, like the protection of biodiversity. They may impact the regulation of armed conflicts through two main processes: either by serving as a standard for interpreting LOAC norms (‘interpretation process’), which means that it is incorporated into those norms and, therefore, benefits from the same broader scope of application, including its application to armed groups; or by applying in parallel to LOAC (‘application process’), but according to its own scope of application and after conflicts of norms or interpretations with LOAC have been settled. Those processes may operate based on well-known general mechanisms, such as the principle of systemic integration (for the ‘interpretation process’) or the lex specialis principle (for the ‘application process’), or based on more specific mechanisms, such as Article 21(3) of the Rome Statute mobilized by the Pre-Trial Chamber in the Al Hassan case in relation to the interpretation of the law applicable before the ICC in light of HRL.
The operation of these formal mechanisms may be necessary to avoid any conflict between LOAC and the relevant norms of the external branch of law, ensuring the consistency of the resulting legal solutions. However, those formal mechanisms are not sufficient to provide adequate regulation of armed conflict. They lack any normative content that would help in making the non-formal choices required for their operation, like those made by the Trial Chamber in the Al Hassan case when it relied on HRL to interpret the LOAC fair trial guarantees. The operation of those mechanisms must, therefore, be guided by substantial considerations that ensure the coherency of the ensuing legal solutions.
These considerations arguably imply that the relevant norm of the external branch of law must be fully incorporated into LOAC (‘interpretation process’) or fully applied in parallel to LOAC (‘application process’) provided or to the extent that the resulting legal solution does not conflate with effectiveness-based considerations specific to situations of armed conflict. This means that the full incorporation of the relevant norms of the external branch into LOAC (as a result of the ‘interpretation process’) or their cumulative application with LOAC in armed conflicts (as a result of the ‘application process’) can only be limited if, or to the extent that, it is justified either by the particular circumstances ruling at the time (‘in concreto considerations’) such as the limited material capacity of the belligerents, or general features specific to armed conflicts (‘in abstracto considerations’) such as the sociological reciprocity in the fighting of war, which is duly taken into account by the principle of equality of belligerents. Those limitations may result in displacements of the inappropriate regime and in modulations. Such modulations may be particularly needed when external branches intend to regulate non-international armed conflict (either through the ‘interpretation process’ or the ‘application process’), given the effectiveness-based considerations relating to the limited capacity of armed groups. Arguably, the most adequate modulations to consider these effectiveness-based considerations consist in phrasing the LOAC obligation, interpreted in light of relevant norms of the external branch, or that branch’s obligation applicable alongside LOAC herein, as an obligation of conduct. Although such obligation would apply to both parties to the conflict, the standard of due diligence against which the respect for such obligation is to be assessed would enable taking into account the particular circumstances ruling at the time and the different intrinsic features of each party, including their material capacity.