Al Hassan Symposium – (Re) Introduction

In July of 2023, Articles of War and Armed Groups and International Law jointly launched a series of posts covering the forthcoming trial judgment of the International Criminal Court (ICC) in Prosecutor v. Al Hassan. The case addressed charges relating to acts by Ansar Dine and Al-Qaida in the Islamic Maghreb (AD/AQMI) between 2012 and 2013 while the groups exerted territorial and political control over Timbuktu, Mali. The situation came before the ICC through a self-referral by the government in July 2012. The court then issued an arrest warrant for Al Hassan in March 2018 and a pre-trial Chamber confirmed the charges against him on 30 September 2019. The trial began on 14 July 2020 and closed on 25 May 2023.

Soon after the case closed and in anticipation of the court’s judgment, we asked several experts to identify key legal issues the judgment would likely address and to assess its potential impact on the fields of international criminal law (ICL) and the law of armed conflict (LOAC)/international humanitarian law (IHL). Our contributors’ posts addressed rebel governance and law making, wrongful sentencing, gender-based crimes and torture charges, all in the context of the groups’ imposition of Islamic law in Timbuktu.

On 26 June 2024, eleven months after the conclusion of our series, the trial chamber issued its judgment. As we anticipated, the decision offers much for the fields of ICL and LOAC/IHL to consider (822 pages to be exact). In this revival of our joint Al Hassan Symposium, we have asked a further group of experts, to evaluate the trial chamber’s judgment, especially from their respective areas of prior experience and scholarship. They have responded with compelling posts addressing: conflict classification; the connections of charged acts to armed conflict and international human rights law considerations; coerced confession and unlawful sentencing; sexual offenses and gender-based crime; and the defenses of duress, mistake of law, and superior orders.

Each contributor also addresses a question we posed in our first introductory post—adapted from a passage in a defense filing concerning their client’s contributions to the charged acts—Al Hassan, petite sardine or big fish?

The Judgment

The three judges of Trial Chamber X convicted Al Hassan of crimes against humanity including torture, enslavement for his role in forms of forced labor and exploitation of civilians, and persecution for his role in targeting religious and ethnic groups not aligned with AD/AQMI for subjugation and terror. The chamber also convicted Al Hassan of the war crimes of torture, outrages on personal dignity, mutilation, cruel treatment, and unlawful, extra-judicial sentencing. The chamber acquitted him of the crimes against humanity of rape, sexual slavery, and forced marriage. It also acquitted him of the war crimes of rape, sexual slavery, and attacking protected objects. Each of the three judges appended a separate opinion to the judgment and a partial dissent.

The weeks after the case saw several blog posts published on some of the most controversial aspects of the judgment which related to Al Hassan’s acquittal for gender persecution (see here, here, and here). While gender-based violence survivors expressed disappointment with the judgment, non-governmental organizations working on gender justice expressed concerns about the intensely fragmented trial judgment which pointed to insufficient joint deliberation.

On 18 September, the prosecution and defense filed notices of appeal against the judgment, alleging errors of fact and law by the trial chamber. Meanwhile, on 20 November 2024, the chamber sentenced Al Hassan to 10 years of imprisonment. Then, in a somewhat surprising development, on 17 November 2024 both sides notified the Appeals Chamber they would discontinue their appeals. Since those discontinuances, the court’s attention has focused on lingering matters relating to victim reparations.

The Series

The judgment reflects another important intersection of the LOAC/IHL and international criminal law communities. But beyond an opportunity to evaluate how those simultaneously distinct but interrelated disciplines can and should interact, and beyond the gender aspects which have already been written about in some detail, our symposium will demonstrate how the judgment provides valuable grist for the mills of discrete issues that have developed in each field.

First, Dr Chiara Redaelli considers the court’s approach to the legal classification of the situation in Mali as a non-international armed conflict. She marks the judgment as “a new chapter” in ICL and LOAC/IHL conflict classification practice. In particular, she notes abandonment of a previously prevailing “fragmented” approach, that had considered whether distinct confrontations independently and severally met legal requirements of intensity and organization, in apparent favor of an “aggregated” approach that applies those criteria across various groups and confrontations jointly or collectively to classify a situation as armed conflict.

On the questions of belligerent nexus and also the application of international human rights law to non-State armed groups, Dr Ezequiel Heffes tackles the trial chamber’s finding that all activities by Ansar Dine/AQIM in their controlled territories, including those of governance, were regulated by LOAC/IHL, while at the same time affirming that there is no reason why LOAC/IHL and international human rights law “cannot apply at the same time.”

Next, Dr Michel Paradis addresses Al Hassan’s conviction for unlawfully passing sentences without guarantees of rights to fair trial, first surveying important post-Second World War trials of German and Japanese officials on these same charges. While he commends the judgment as a similarly “righteous milestone” of justice, he turns the mirror on the trial chamber itself. Noting Al Hassan’s allegation that he suffered abuse while in custody and under interrogation, Dr Paradis estimates that the chamber might have better demonstrated its commitment to “avoiding the temptations of summary justice” with a more deliberate analysis of the context of Al Hassan’s custody and interrogations, particularly considering how important his custodial statements were to his conviction.

Dr Hannes Jöbstl also writes on the court’s conviction of Al Hassan under the war crime of passing sentences without a regularly constituted court. He notes the conviction as an important and generally encouraging “first” in the context of a non-international armed conflict. In addition, he highlights the chamber’s effort at working through murky, largely uncharted elements of the offense. However, he raises questions concerning the chamber’s evaluation of Al Hassan’s “relatively minor contribution” to the “trials” conducted by AD/AQMI.

Then, Dr Fin-Jasper Langmack evaluates the trial chamber’s treatment of Al Hassan’s resort to the long-fraught defense of superior orders. He notes the inherent difficulty of applying the superior orders defense in settings that lack a de jure or widely recognized governmental authority. He notes with approval that by engaging the defense, albeit across only three pages, the trial chamber implicitly acknowledges its applicability to non-State actors’ conduct. However, he questions the judgment’s restriction of the defense to direct commission of offenses and its categorical exclusion of the defense to charges based on other modes of liability such as facilitation or complicity. He also questions the legal basis for the chamber’s conclusion that orders by superiors to commit war crimes that are also crimes against humanity must be considered “manifestly unlawful” such that the superior orders defense must be unavailable.

Meanwhile, Dr Antonio Coco contributes a post addressing Al Hassan’s assertions of the defenses of duress and mistake of law. Noting that the issue split the trial chamber, Dr Coco first measures the respective judges’ approaches against relatively developed precedent on the duress defense. He counsels caution against an approach to duress that reduces too greatly the threshold of threat or harm that must be faced by an accused, particularly among members of especially violent organizations, warning that a low threshold may amount to issuing a carte blanche. On the defense of mistake of law, Dr. Coco expresses skepticism toward a member of the trial chamber’s acceptance of the defense, estimating that an accused’s legal misconceptions may be better accounted for through sentencing than acquittal.

Professor Leila Sadat renders a deep examination of the judgment as well as the judges’ separate opinions. She focuses commentary on the judgment’s approach to sexual and gender-based crimes, characterizing the chamber’s approach to these issues as both “confusing and disappointing.” She assesses that the judgment joins the ICC’s previous cases, such as the Katanga and Bemba appeals judgments, as blind to the situation’s violent context and skewed in its evidentiary weighing of witnesses’ testimony.

Finally, Raphael Van Steenberghe delves into how the Trial Chamber addressed courts established by non-State armed groups and the international legal framework applicable to the procedural guarantees of processes undertaken by such courts.

We hope our readers benefit from this broad collection of perspectives as much as we have and better appreciate the importance and likely legacy of this case.

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Katharine Fortin is Associate Professor at the Netherlands Institute of Human Rights, Utrecht University and a researcher at the Montaigne Centre for the Rule of Law and Administration of Justice.

Ezequiel Heffes is the Director of Watchlist on Children and Armed Conflict in New York.

Sean Watts is a Professor in the Department of Law at the United States Military Academy, Co-Director of the Lieber Institute for Law and Land Warfare at West Point, and Co-Editor-in-Chief of Articles of War.

Photo credit: ICC