Al Hassan Symposium – The ICC’s Coerced Confession Double Standard

Editors’ note: This post is part of a joint symposium hosted by the Armed Groups and International Law and 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’s (ICC) Trial Chamber convicted Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (Al Hassan) of complicity in various war crimes and crimes against humanity perpetrated by the Islamist militant organization, Ansar Dine, and their allies Al-Qaeda in the Islamic Maghreb (AQIM), during their occupation of Timbuktu, Mali. Al Hassan was culpable in the Trial Chamber’s view for his leadership role in Ansar Dine’s Islamic Police, which the Trial Chamber found had, among other things, routinely engaged in torture and worked closely with Ansar Dine’s Islamic Court, which imposed often brutal and summary justice, if it can be called that at all.

Al Hassan’s war crimes trial is notable for several reasons. Chief among them is that this is the first trial in the modern era of war crimes prosecutions starting in the 1990s to convict a defendant for the denial of justice.

Denial of Justice – A Legacy of Post-Second World War Trials

Such prosecutions were, while not quite a mainstay of the post-Second World War era war crimes prosecutions, one of their more profound and celebrated innovations. I wrote a book about the most celebrated such prosecution at the time, the American war crimes trial of Shigeru Sawada and three others in March 1946. The Sawada trial, though largely forgotten until recently, had been front page news in its day, as the U.S. Army tried the Japanese judges and lawyers responsible for the August 1942 show trial of the Doolittle Raiders for murder. The basis of the charges was that the Japanese had prosecuted the captured Doolittle Raiders—who themselves were among the most celebrated American war heroes—under an ex post facto law and using confessions tainted by torture.

In the prosecutions that followed, the United States brought similar charges against Japanese and German officials, who had perverted justice in their own ways. At the International Military Tribunal at Nuremberg (IMT), the Nazi’s Night and Fog Decree, which established a policy of kidnapping suspected members of resistance movements in occupied Europe and punishing them after summary trials before SS-run tribunals was prosecuted as an act of “terrorism” against the civilian population of occupied countries. The show trial of the Doolittle Raiders was also reprised as amongst the charges brought against the Imperial Japanese leadership at the International Military Tribunal for the Far East.

The landmark case was the so-called Justice Case, conducted before the Nuremberg Military Tribunal after the IMT completed its work. Dramatized, indeed immortalized, in the Spencer Tracy classic, Judgment at Nuremberg, the Justice Case tried German lawyers and judges for their decade-long perversion of justice. This included not just the summary justice meted out under the Night and Fog Decree, but also the more general ways that the German legal apparatus contributed to what Ernst Fraenkel called at the time, Germany’s “Dual State.” The Justice Case confronted the distinct evil presented by the fact that the mass murder of Jews, Roma, homosexuals, and the disabled was not just perfectly legal in the Third Reich, it was fully legalized. If the genocidal weapons of people like Adolf Eichmann were the modern equivalent of spreadsheets, the Nazi legal system had wielded legal jargon woven into formal procedure.

Criminalizing Punishment without a Fair Trial

As the perverted enforcement of the law came to be understood itself as a kind of international crime, Common Article 3 of the Geneva Conventions of 1949 famously forbade the imposition of punishments without a fair trial, defined as a “regularly constituted court affording all those judicial guarantees that are recognized as indispensable by civilized people.” It was this provision of Common Article 3 that the U.S. Supreme Court relied upon in Hamdan v. Rumsfeld, to invalidate the Bush Administration’s early iteration of military commissions in Guantanamo Bay. And it was translated into both the Rome Statute’s itemization of war crimes under Article 8 as well as Article 7’s treatment of “imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law” as a crime against humanity.

The Trial Chamber in the Al Hassan case was therefore on strong legal ground in condemning the work of the Islamic Court, whose judges often held other roles in Ansar Dine. Criminal trials, the Court found, were “very quick and ‘simple’” affairs that involved little more than reviewing a report from the Islamic Police, which was accepted as true and which in some cases was written the very same day that Islamic Court’s judgment was rendered (Judgment, para. 627 et seq.). The Islamic Court accepted confessions willfully blind to the coercion that often led to them. And their judgments were typically issued in close consultation with AQIM’s de facto governor of Timbuktu, Abdelhamid Abou Zeid. The punishments meted out were out of medieval Europe, and as the tribunals in the post-war period often concluded, dedicated less to the imposition of justice than they were the spreading of terror.

A Landmark Case

The Al Hassan judgment is, therefore, a righteous milestone for the still-fledgling ICC and the development of modern international criminal law. By virtue of his leadership role in Ansar Dine’s Islamic Police, the Trial Chamber found Al Hassan guilty as a knowing participant in the work of the Islamic Court, in providing it the “evidence” on which it relied and in carrying out the sentences it imposed. Enforcing local law remains no defense to international crimes.

Al Hassan’s defense argued that the Trial Chamber should respect, or at least account for, “legal pluralism” and the relevant cultural differences, given that the rough justice Ansar Dine imposed was based on its interpretation of sharia (para. 353 et seq.). The argument was not without force. A survey of major legal systems around the world reveals a diversity of views on what fairness requires, just as it varies on what punishments are, to borrow a phrase from U.S. constitutional law, cruel and unusual. Even if we refrain from using the Geneva Conventions’ outmoded adjective “civilized,” the permanent members of the Security Council all vary considerably in their approaches to what judicial guarantees are necessary, whether it is with respect to prison conditions, capital punishment, judicial independence, rules of evidence, rights to counsel, or police accountability.

Judge Antoine Kesia-Mbe Mindua, who had come to the ICC after a distinguished tenure on the International Criminal Tribunal for the former Yugoslavia, wrote separately, largely to highlight the ways in which Ansar Dine’s interpretation of sharia was both extreme and opportunistic. But he did credit the defense’s argument to a point, concluding that, at least with respect to the imposition of corporal punishments such as flogging, Al Hassan should have benefited from the mistake of law defense available under the Rome Statute (Dissenting Opinion, para. 91 et seq.).

The majority, for its part, rejected the argument largely out of hand. The Rome Statute, in its view, was written to replace cultural relativism with liberal universalism. The majority therefore held that it “does not include cultural exceptions, and accordingly these provisions apply in the same manner, irrespective of any cultural particularities,” especially with respect to the absolute prohibitions on torture (Judgment, para. 1137).

A Blind-Eye Toward Treatment of the Defendant

The majority’s emphatic statement of principle would be more compelling if the Al Hassan case did not simultaneously present the ironic problem of the Trial Chamber’s own short cuts in the administration of justice and with respect to the prohibition on torture. As I wrote during Al Hassan’s trial, and as other critics noted, there is compelling evidence that Al Hassan’s own statements were the product of coercion and ICC investigators’ knowing complicity in his mistreatment while he was in custody in the notorious Malian prison run by the Direction Générale de la Sécurité de l’État (DGSE).

Al Hassan credibly alleged that during his incarceration, he was subjected to torture, to include waterboarding, as well as other forms of cruel, inhuman, and degrading treatment. Independent medical examinations lent additional credibility to these claims, documenting physical and psychological injuries consistent with torture.

To be sure, ICC investigators did not engage in any acts of abuse themselves. They did, though, interrogate Al Hassan nineteen times while in DGSE custody. Even if ICC investigators gave him rights warnings or voiced concerns about his conditions, the fact remains that Al Hassan knew where he was and had every reason to expect that his cooperation–or not–with ICC investigators could materially influence the conditions under which he would be confined, once they had left the prison walls.

The Trial Chamber rejected a pre-trial motion by the defense under Articles 55(1) and 69(7) of the Rome Statute, which respectively forbid the use of coercion in the course of an ICC investigation and exclude evidence obtained in a way that violates internationally recognized human rights if its reliability is substantially in doubt or its admission would “seriously damage the integrity of the proceedings.” The Trial Chamber declined to categorically bar the use of Al Hassan’s statements to investigators by focusing narrowly on the ICC investigators’ conduct. Because the investigators had not been party to any abuse, and—to the contrary—had taken steps to raise Al Hassan’s concerns with the DGSE, they had done nothing wrong and therefore their evidence need not be excluded (Decision on requests related to the submission into evidence of Mr Al Hassan’s statements, para. 49 et seq.).

As I wrote at the time, these conclusions relied upon a spurious application of the ICC’s limited precedents and were indefensible as a matter of practical experience. It was spurious because the Trial Chamber flipped the burden of persuasion onto the accused, in other words treating as presumed that ICC investigators obtained his confessions lawfully and requiring Al Hassan to overcome that burden. While there is no truly fair comparison between the Trial Chamber’s deference to its investigators’ reports, and Ansar Dine’s Islamic Court’s rubber stamping of its investigators’ reports, one is left feeling the difference is a matter of degree more than substance.

The Court’s approach also defied common sense because only the most unembarrassed police States use confessions extracted under torture. Whether it was the Kempei tai in the Sawada case, or the SS in the Justice Case, or the use of FBI clean teams in Guantanamo, or the techniques of the Soviet NKVD used during the Purge Trials, torture produces the most useful results, when a good cop asks the important questions and a bad cop looms nearby. In short, it is the taint of torture, not just its naked use, that compromises the integrity of any criminal proceeding worth the name. And the Trial Chamber’s pre-trial decision did nothing to expiate that taint.

A Janus-Faced Decision

In my earlier piece, I expressed hope that the Trial Chamber would ultimately reject Al Hassan’s statements to the ICC interrogators in its final judgment and refrain from relying upon them. Having reviewed those interrogation reports, it would have been obviously something of a legal fiction to assume that Al Hassan’s purported admissions would have no influence on the judge’s conclusions or how they viewed the rest of the evidence brought forward over years of pre-trial and trial proceedings. But it would have been an important statement of the Trial Chamber’s own commitment to avoiding the temptations of summary justice when confronted with atrocities on a mass scale.

Alas, the Trial Chamber took a markedly different approach. It reaffirmed its prior ruling with little additional analysis, focusing as narrowly as possible on the circumstances of the interrogations themselves with barely a passing mention of the context in which they were taken.

The Chamber recalls its finding that the interviews were conducted in an open, constructive and respectful manner with Mr Al Hassan being accorded a full opportunity to express himself. In this respect at one point Mr Al Hassan commented that he was giving these statements voluntarily so the truth would be clear about what had happened. Mr Al Hassan was well treated during the course of his interviews, being given water and tea as well as regular breaks for meals and prayers. The Chamber also notes that Mr Al Hassan was provided with interpretation assistance throughout and that there was meticulous attention to detail in terms of recording the particulars of all the interviews, including the participants, persons entering or leaving the room, as well as the dates, times and locations of the recordings. The Chamber has also taken into consideration the overall content of the exchanges which is discussed in more detail below. The Chamber is fully satisfied that these conditions of the interview process were conducive to a full and accurate record and that the audio recordings and transcripts bear sufficient indicia of reliability. In sum, there were no circumstances in the manner of the taking of the statements which negatively impact on the voluntariness of the statements or the probative value and weight to be accorded the evidence as a whole (Judgment, para. 325).

It bears emphasis that this was neither a theoretical, nor marginal question in Al Hassan’s case. The Trial Chamber’s eight-hundred-page judgment cites Al Hassan’s statements to interrogators as evidence nearly five hundred times, often as the only evidence supporting particular allegations. For example, Al Hassan’s statements were the only evidence supporting the finding that the Islamic Court’s judgments would sometimes be handed down “the same day the case was heard,” and, ironically enough, the Islamic Court’s practices when investigative reports were tainted by allegations of coercion (Judgment, para. 628 et seq.). Al Hassan’s statements were the principal evidence upon which the Trial Chamber relied to establish his leadership position in the Islamic Police and, as a consequence, his imputed culpability for its conduct. And the Trial Chamber repeatedly used Al Hassan’s statements to establish his knowledge and state of mind.

Conclusion

Few will be apt to feel any sympathy toward Al Hassan. To the contrary, some of the commentary respecting the judgment in this case has expressed disappointment, shared by Judge Tomoko Akane in her dissenting opinion, that Al Hassan was acquitted on the charges relating to sexual violence, given the majority’s qualms about the quality of the evidence demonstrating his knowing complicity. Certainly, the people of Timbuktu, who endured the campaign of terror inflicted by Ansar Dine in the name of sharia, would not be human if they did not feel a certain Schadenfreude in knowing that those who denied them justice got just a small taste of injustice themselves.

For those concerned with the health of international criminal law, and the durability of the ICC as a credible institution, however, sympathy is a distraction. In his famous dissent from Special Court for Sierra Leone decision in Prosecutor v. Norman on the ex post facto principle, Geoffrey Robertson chastised his fellow judges for being willing to bend the law to achieve what they perceived as justice for abhorrent crimes. “On the contrary,” Robertson wrote, “it is precisely when the acts are abhorrent and deeply shocking that the principle of legality must be most stringently applied, to ensure that a defendant is not convicted out of disgust rather than evidence” (Dissenting Opinion, p. 10).

So too when the evidence used to convict a defendant of atrocities is the product of coercion or tainted by torture. The impulse to establish the guilt of the guilty is as strong and human as the impulse to believe that no one would ever really confess to something horrible if it were not at least a little bit true, and the impulse to believe that because procedural protections are principally designed to protect the innocent, that they need not be applied faithfully when the defendant is “obviously” guilty.

The cost of giving in to those impulses, though, is sadly exemplified by the judgment in Al Hassan’s case. Since the post-Second World War period, international criminal justice has been uniquely able and relied upon to establish the most credible historical record that is typically possible in circumstances of conflict, or mass atrocity. When it comes to Ansar Dine’s crimes in Timbuktu, it may very well be that Al Hassan is as guilty as the Trial Chamber concluded he was. Perhaps more so. But the weight of its findings must be and will be discounted given the shear extent of the Trial Chamber’s reliance on statements from the accused that were so dubiously permitted into evidence.

The ICC has been taking on ever more ambitious cases involving the United States-Afghanistan war, the Israeli-Palestinian conflict, and the Russo-Ukrainian War. It does so at the very time that the political winds are turning against it and when the United States, under a new administration, is poised to target it with sanctions. The ICC’s ability to fulfill its ambitions depends upon its credibility as a court of justice. While there is a lot to praise, particularly respecting the amount of painstaking work that was invested in the Al Hassan case, the Trial Chamber’s evidently ends-driven approach to the question of coerced confessions will cast a permanent shadow over its judgment, and over the credibility of the ICC.

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Michel Paradis is a leading human rights lawyer and national security law scholar. He is a Lecturer at Columbia Law School, an adjunct professor at Georgetown, and a fellow at the Center on National Security.

Photo credit: Tony Webster