Al Hassan Symposium – A Disappointment for the Victims of Sexual and Gender-Based Violence in Timbuktu

Editors’ note: This post is part of a joint symposium hosted by the Armed Groups and International Lawand Articles of War blogs. The symposium addresses the ICC’s judgment in the Al Hassan case. The introductory post is available here.

On June 26, 2024, the International Criminal Court (ICC) handed down its second judgment in the Mali Situation, Prosecutor v. Al Hassan AG Abdoul Aziz AG Mohamed AG Mahmoud (Al Hassan Judgment). Like the first, it centered on crimes committed when rebel forces and the Islamist groups Ansar Dine and Al Qaeda in the Islamic Maghreb (AQIM) invaded and took over the ancient city of Timbuktu in Northern Mali during an eight-and-a-half-month period between April 2012 and January 2013. The Islamist groups were not aligned with the rebels who wished to establish an independent Tuareg State in Northern Mali. Instead, they sought to dominate the region and impose their religious ideology on the population and take control of the territory.

Ansar Dine/AQIM had total control of Timbuktu from April 2012 onward and committed atrocities including looting, pillaging, and terrorizing the local population with public floggings, amputations, rape, forced marriage, and summary executions (Al Hassan Judgment, para. 451). Unable to exercise control over the north, the government of Mali requested that the ICC investigate in July 2012.

The Importance of Al Hassan

In 2016, the ICC convicted Ahmad Al Faqi Al-Mahdi, a member of Ansar Dine, of the war crime of intentionally directing attacks against religious and historic buildings in Timbuktu in 2012 (Rome Statute, art. 8(2)(e)(iv)). Although Al-Mahdi brought a modicum of justice to the victims, the case was limited to property crimes. Moreover, while the attacks on the shrines of Timbuktu for which Al-Mahdi was convicted were motivated by the religious ideology of Ansar Dine/AQIM, the case did not address the effect on the local population of their harsh and idiosyncratic interpretation of Shari’a law. Ansar Dine/AQIM enforced their religious ideology by creating an Islamic Police and morality brigade, the Hesbah, that “patrolled the city by day and night” to force compliance with the group’s Islamist beliefs, and which terrorized the population (Al Hassan Judgment, para. 1).

Women and girls were targeted by the Hesbah and forced to adhere to a strict dress code covering their heads and bodies, forbidden to wear traditional clothing and jewelry and from speaking with men other than their family or going out at night. They were “hunted down in the streets, in the schools, in hospitals, and sometimes even in their own homes,” and were detained, beaten, arrested, imprisoned under inhumane conditions, subjected to forced marriage and sexual slavery, and sometimes raped if they did not comply. A newly created Islamic Court imposed harsh punishments based upon what the Islamists argued were prescribed by the Qur’an and Shari’a law more generally (Al Hassan Judgment, paras. 658-741). 

The Al Hassan case, then, was important. Al Mahdi led the Hesbah; Al Hassan was a high-ranking member of the Islamic Police, and a “key player” within the police force (para. 1065). Former Chief Prosecutor Fatou Bensouda alleged that Al Hassan was responsible for six counts of crimes against humanity (torture, rape, sexual slavery, persecution on religious and gender grounds, and other inhumane acts like beatings and forced marriage) and seven war crimes counts (torture, cruel treatment, outrages upon personal dignity, passing of sentences without previous judgment pronounced by a regularly constituted court, rape, sexual slavery, and intentionally directing attacks against buildings dedicated to religion and historic monuments) in the arrest warrant issued in March of 2018. The case was the first successful attempt to charge gender persecution at the ICC, and was part of Prosecutor Bensouda’s effort to elevate and prioritize the effective investigation and prosecution of sexual and gender-based crimes as set forth in her 2014 Policy Paper.

While multiple aspects of the case are interesting and important, this post focuses primarily on the judgment’s approach to sexual and gender-based crimes including gender persecution, which proved confusing and disappointing. A close reading of the opinions combined with the holdings themselves suggests that the Chamber may sometimes have adopted a gendered approach to the evidence. For example, credible male witnesses are described as “calm and respectful” (para. 202) or “composed” (para. 215); less credible female witnesses had a “tendency to exaggerate” (para. 271) or “poor knowledge” (para. 279). Further, Judge Mindua’s separate opinion, which opens the door to accepting brutal Islamist corporal punishments as “lawful sanctions” that particularly harm and discriminate against women and girls, can only be described as alarming.

The judgment suffers from many of the same flaws as the Katanga and Bemba Appeals Judgments. Namely, it is fractured by multiple opinions, lacking legal clarity, and above all, approaches the charges of sexual and gender-based violence (SGBV) without understanding the context within which such violence occurs and with a skepticism that, once again, resulted in the acquittal of the accused of all SGBV crimes including gender persecution.

The Confirmation of the Charges: Gender and Religious Persecution

The 2019 Pre-Trial Chamber decision confirming the charge of gender (and religious) persecution made important contributions to the understanding of the crime. At the ICC, Article 7(1)(h) requires persecution to be committed against “any identifiable group or collectivity … in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.” Article 7(2)(g) adds that persecution “means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” The Defense argued that only crimes within the meaning of the Rome Statute could “count” as “acts of persecution,” and moreover that those acts of persecution had to be individually connected to other ICC crimes, meaning that many of the worst indignities endured by the women of Timbuktu such as being beaten for wearing veils not in keeping with the Islamists’ views, or detained sometimes for days for minor transgressions, would not have “counted” to establish the elements of the crime. The Defense also argued that because the Islamists imposed their ideology on both men and women, the persecution may have been on the basis of religion but was not “gendered.”

The Pre-Trial Chamber rejected both Defense contentions. It found that the acts of persecution were not “limited to the crimes enumerated in the Statute but may take various forms, not necessarily physical, violating individual freedoms, or resulting in the destruction or seizure of property,” and that “persecution may be gender-based ‘where male and female members of the same group [are] targeted in different ways or for different forms of violence depending on their gender’” (Confirmation Decision, paras. 667-8, 672).

A Disappointing Trial Judgment

The clarity provided by the Pre-Trial Chamber’s Confirmation decision is lacking in the Trial Chamber’s 822-page judgment, which was accompanied by three additional separate opinions penned by each judge. The four opinions read together are fractured and confused and resulted in the acquittal of the accused on all SGBV crimes, including gender persecution. They also open the door to the possibility that corporal punishments including flogging and amputations could be characterized as “lawful sanctions” under the Rome Statute.

Although a Majority (Akane and Prost) convicted the accused on multiple counts, including religious persecution, the divergence of views among the judges rendered the judgment disappointing on the critical issue of whether gender persecution had been committed, as well as other SGBV crimes including rape, forced marriage, sexual slavery, and torture. While it is hard to know where to begin (readers may wish to consult the excellent post by Rosemary Grey and Valerie Oosterveld for a helpful chart showing the various positions of the judges), I will start with Mindua’s Separate and Dissenting Opinion, as it was the nail in the coffin, so to speak.

Judge Mindua’s Cultural Relativism

Focusing his opinion on the right of all peoples to self-determination, and suggesting that the Court needed to respect different cultural practices, Judge Mindua contended that while it was understandable that the government of Mali was fighting to ensure the unity of its territory, it was not proper for the Court to judge the legitimacy of the militant groups taking up arms against the central government (paras. 15-18). While he allowed that the groups were subject to the rules of international humanitarian law, and that they had committed “abominable crimes” (para. 39), he concluded that Ansar Dine/AQIM had “occupied” the territory, a dubious legal assertion, and therefore had the right, indeed, the duty, to establish institutions (courts, police, etc.), and to use their own version of Shari’a law, with its harsh punishments of beatings, amputations, and the death penalty, and to promulgate rules against imbibing alcohol and the dress code for women as they saw fit, according to their Islamic culture (paras. 53-55).

Having thus suggested that terrorist organizations and rebel groups have a “right” under international law to impose their own interpretation of law within part of a State’s territory (his reasoning would apply to ISIS, of course, and other similar groups, and is inconsistent with the understanding of the right of self-determination under international law), he then evaluated the various punishments inflicted including floggings, amputations, and death.

In a truly extraordinary passage, he suggested that while generally speaking amputations would be a form of torture, they might not be if they were conducted under anesthesia (para. 69). The majority dismissed this argument, finding that “lawful sanctions” must be consistent with internationally recognized human rights, which corporal punishments are not (Al Hassan Judgment, paras. 1141-42). This is somewhat confusing given that Judge Mindua was a member of the Majority.

In any event, Judge Mindua continued, because Al Hassan believed them to be legal under the Qur’an, he could not have known that the sanctions imposed by Shari’a law constituted international crimes, entitling him to a defense of “mistake of law” under Article 32(2) of the Rome Statute (Separate and Partly Dissenting Opinion of Judge Mindua, para. 101). This had been a constant theme of the Defense from the outset, arguing that the ICC was essentially criminalizing the imposition of Shari’a law (although many experts observed that Ansar Dine/AQIM were not properly administering Shari’a law). This particular Defense theme was refuted by the Pre-Trial Chamber which noted that the negotiators of the Statute “did not adopt a culturally relative approach to crimes against humanity … [but] endorsed one same law of crimes against humanity for the whole of humanity” (para. 181).

As for the other crimes, Judge Mindua found that Al Hassan had no choice but to join Ansar Dine/AQIM; moreover, given that he was Tuareg, a minority that had been persecuted for decades by the central government, it was natural for him to take up with an armed group that purported to defend his people (Separate and Partly Dissenting Opinion of Judge Mindua, para. 115). Thus, according to Judge Mindua, Article 31(1)(d) (duress) provided Al Hassan with a total defense.

Given the space constraints of this short post, it is not possible to completely unpack how Judge Mindua concluded that the entities occupying and terrorizing the inhabitants of Timbuktu had a “right” under the international law of self-determination as international law has no such doctrine (see, e.g., Reference re Secession of Quebec decided by Canada’s Supreme Court in 1998). Judge Prost and Judge Akane’sassessments that his view on duress was unsupported by the facts and his finding on mistake of law was “devoid of legal reasoning” are spot on (Prost Separate Opinion, para. 3). Al Hassan was a highly educated individual who joined Ansar Dine of his own volition and was tasked by the leadership of the Islamic Police with important administrative responsibilities, serving as an interpreter, organizing patrols, and sometimes taking part directly in police patrols (Confirmation Decision, paras. 730-31). He signed orders, authored reports, and was either knowledgeable about or sometimes personally present when the Islamic Police committed atrocities, including floggings, torture, amputations, inhumane and cruel treatment.

Sexual and Gender-Based Violence and Gender Persecution

The majority (Prost and Mindua) found that Ansar Dine/AQIM members specifically targeted local women and girls by reason of their gender, aimed rules and prohibitions against them which were punished harshly, including the imposition of dress codes, rape and other forms of sexual violence, beatings, restrictions on their liberty, resulting in the crime against humanity of gender persecution. The majority also found (Judge Akane dissenting) that the “in connection with” requirement did not require that “the Article 7(1) acts meet the contextual elements for crimes against humanity; it is sufficient that there is a connection between the persecution and any instance of murder, torture, rape or other inhumane act” (Al Hassan Judgment, para. 1208).

Finally, and importantly, the Majority confirmed the Pre-Trial Chamber’s holding that persecution may be “gender-based if male and female members of the group are targeted in different ways or for different forms of violence depending on their gender” (para. 1567). Likewise, Judges Prost and Mindua found that forced marriage, sexual slavery, and rape had occurred, but, again, Judge Akane dissented. The SGBV crimes were charged under Article 25(3)(d) of the Statute (common purpose) and, importantly, the Majority found that the rapes, forced (jihadi) marriages, sexual slavery, and gender persecution were indeed part of the “common purpose,” and that particularly as regards the rapes, it “need not be established that the groups’ goal or objective was the commission of the crime, only that the crime was committed as part of the common purpose” (paras. 1655, 1659). In the view of the Majority, which noted that the rapes took place as part of a pattern, the “combined circumstances, including the overall power structure with respect to women, was such that the conditions with respect to the detention of women would include rape.”

Alas, this otherwise excellent jurisprudence was gutted not only by Judge Mindua’s decision to acquit on all counts, but also because only Judge Prost found Al Hassan culpable of the rapes in detention under Article 25(3)(d). Judge Akane found that none of the SGBV crimes could be attributed to the accused as the “crimes of rape, sexual slavery and forced marriage … were not part of the common purpose shared by members of Ansar Dine/AQIM, nor did Mr. Al Hassan make any contribution to these crimes” (para. 2).

In Judge Akane’s view, the rapes were the result of individual bad actors and could not be attributed to the group. She also found that it could not be established beyond a reasonable doubt that Al Hassan was aware of the intention of members of the group to engage in acts of rape in detention, and that he had not contributed to the crime. Likewise, Judge Akane rejected the idea that the jihadi marriages and sexual slavery charges were attributable to Ansar Dine/AQIM, although she admitted that such marriages were encouraged by the Islamists, and that Al Hassan was involved in jihadi marriages by acting as an intermediary.

In her view, the accused must be aware of the “group’s intention to commit the specific crime or crimes to which he is contributing” (para. 56). She also found that the SGBV crimes were not part of the “attack” on the civilian population, nor was there a nexus between those crimes and the attack (paras. 65-67). Finally, Judge Akane found that no gender persecution existed, holding that each persecutory act had to be linked to an ICC crime. Given her dismissal of all the SGBV crimes, she concluded that “while the rules and prohibitions imposed did affect women and girls to a great extent, the facts do not support a specific discriminatory intent beyond the targeting on religious grounds” (para. 103). This dismissive approach towards the SGBV crimes is surprising given the relatively recent gender-sensitive analyses by the Trial and Appeals Chambers in the Ntaganda and Ongwen cases, which took account of the context within which SGBV crimes occur.

Moreover, this case was adjudicated at the end of a decade of Office of the Prosecutor Policies on prosecuting SGBV crimes, including the 2014 and 2023 Policies on SGBV crimes and the 2022 Policy on Gender Persecution. Finally, the Court had been criticized for its failure to take a gender sensitive and gender competent approach in the Katanga and Bemba decisions.

Judge Akane’s separate and partly dissenting opinion highlights a persistent problem in the prosecution of SGBV crimes at the ICC, namely the wrongheaded and gendered application of modes of liability jurisprudence in such a manner as to make convictions for SGBV crimes nearly impossible. Judge Prost attempted to correct this approach in her short separate and partly dissenting opinion, but the law remains confused with different judges taking different views. I have made the point previously that the application of Article 25(3) of the Rome Statute has been inconsistent with the plain language of the treaty as well as well-established norms of customary international law. The Court’s approach to Article 25(3) has created artificial distinctions between the various provisions that are not included in the text, and Al Hassan reinforces that by referring to Article 25(3)(d) (common purpose) as a “residual form of accessory liability” (para. 1243).

On its face, of course, Article 25(3)(d) does not appear either “residual” or “accessory.” Indeed, it is rather like joint criminal enterprise liability which was used at the ad hoc tribunals, as Elies von Sliedgredt has pointed out in her work. Compounding this error, however, Judge Akane has narrowed both the meaning of the common purpose and the requirement of the accused’s awareness. As has been the case in other ICC judgments, and, as Patricia Viseur Sellers, Susana SáCouta and I have pointed out previously, the seemingly neutral provisions of the Statute have been applied in a discriminatory manner not applicable to other ICC crimes such as murder, for example, that makes it extraordinarily challenging, if not impossible, to successfully charge an accused for SGBV crimes that they did not participate in directly.

The purpose of the ICC is to bring to justice those most responsible for the commission of international crimes. However, Akane’s approach (and the approach of the Katanga Trial and Bemba Appeals Chambers) all but ensures that high ranking individuals or those critical to the plan but not personally involved in the commission of SGBV crimes will never be held accountable at the Court unless they specifically ordered or carried out the commission of rapes or other acts of sexual or gender-based violence. History and practice, however, tell us that this is not how SGVB crimes typically occur. Rather, they are part of a systematic and oppressive system (like that imposed by AQIM/Ansar Dine). They are tolerated, winked at, encouraged, and unpunished where women and girls are treated as spoils of war, and objects to be used and then cast aside, or where men and boys are sexually abused during detention as a form of rape, cruel treatment and torture.

As Judge Prost noted, Article 25(3)(d) provides an “additional distinct mode of liability covering those who otherwise contribute to the commission of the crime” (para. 6). Given that Al Hassan contributed “meaningfully and directly” to Ansar Dine/AQIM’s integrated system of oppression and punishment, which included acts of sexual violence perpetrated by members of the Hesbah against detained women and girls, she found his contribution to this system of punishment a “direct and meaningful contribution to these crimes of rape committed against detained women” (para. 8). In her view, Article 25(3)(d) requires only that he made his contribution to the common purpose “intentionally and with the knowledge that the crime was intended as part of the common purpose or that it would occur in the ordinary course of events” (para. 14). Likewise, she found that that both gender and religious persecution had occurred in Timbuktu under the regime of Ansar Dine/AQIM and opined that “the conviction for persecution should reflect the multiple and intersecting nature of the targeting of women and girls by Ansar Dine/AQIM.”

The Surprising Decision not to Appeal and the Ramifications of the Judgment

While there are passages of excellent language in the Majority opinion, the overall result is disappointing. In the view of the victims, the “ICC has abandoned women.” While Judge Mindua accepted that SGBV crimes had been committed under the Rome Statute, he found the mistreatment of Timbuktu’s women and girls to be acceptable nonetheless as an unfortunate consequence of the religious ideology of the accused, an ideology that was entirely based on discrimination against and the marginalization of women and girls.

This point is made well in a second essay on Al Hassan by Rosemary Grey and Valerie Oosterveld. Judge Akane’s jurisprudential approach relied upon older and discredited jurisprudence that has consistently resulted in acquittals at the ICC on SGBV crimes. Thus, it was surprising and disappointing when the Prosecutor withdrew his appeal, apparently in mutual agreement with the Defense. The Prosecutor has stated that dropping the appeal was in the “interests of justice” so that the judgment can become final and reparations can be awarded. However, because all the SGBV charges, including gender persecution, resulted in acquittals, it is unclear how comprehensive those reparations can be for the women and girls of Timbuktu. The victims have objected, suggesting that the Prosecutor’s decision further marginalized them and was inconsistent with the Prosecutor’s own Policy Paper.

In short, while aspects of the judgment are commendable and encouraging, the final result is discouraging as it leaves on the books a precedent that may negatively impact other important and ongoing cases alleging gender persecution, including the recent arrest warrants against the Supreme Leader and Chief Justice of the Taliban requested by the Prosecutor in the Afghanistan situation.

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Photo credit: Bob Brewer, Unsplash