Al Hassan Symposium – Rebel Governance under the Spotlight: the ICC Al Hassan Case

Editor’s note: This post is part of a joint symposium hosted by the Armed Groups and International Law and Articles of War blogs. This symposium addresses the pending ICC Al Hassan judgment. Katharine Fortin, Sean Watts, and Diletta Marchesi’s introductory post is available here.

The judgment in the Al Hassan case is one to watch for those working on the legal framework that applies to non-international armed conflicts (NIACs). More than any other before the International Criminal Court (ICC), the case puts “rebel governance” practices firmly under the legal microscope. The term “rebel governance” refers to the regulation of civilian life by armed groups, including the provision of public services, such as healthcare and education, security, land management, dispute resolution, or food production.

The facts of the Al Hassan case will force the Trial Chamber to deal with many difficult legal questions relating to everyday life under rebel control that, although discussed in scholarship, have never been examined by an international criminal tribunal. In this post, I identify three key aspects on which we can expect interesting legal findings: (i) the application of the intensity requirement for the application of international humanitarian law (IHL); (ii) the relevance of civilian and political institutions for the organization requirement; and (iii) the application of the nexus requirement. Before looking at these aspects, I will first provide some further details of the phenomenon of rebel governance and the scholarship that studies it.

Rebel Governance

It is notable that the Al Hassan case does not relate to the conduct of hostilities, but to the way in which two non-State armed groups (NSAGs) – Ansar Dine and Al Qaida in the Islamic Maghreb – governed Timbuktu during a nine-month period between 1 April 2012 and 28 January 2013. During that period, the area was mainly peaceful, and the groups undertook many activities that related to governance and the furtherance of their Islamic ideology. They passed laws and rules relating to crime and behaviour, set up institutions such as an Islamic court, an Islamic police force and a Hesbah (morality police), and vigorously enforced these rules by detaining, prosecuting, and punishing people, sometimes with brutal violence. Mr Al Hassan (the defendant) is alleged to have been the de facto police chief in Timbuktu, though notably he was a local man and not part of either group’s military factions.

This set of facts underlying the Al Hassan case is by no way novel or unusual in the world. Indeed, the International Committee of the Red Cross (ICRC) currently estimates that there are currently between 50-60 million people around the globe, living in territory where NSAGs are exercising State-like governance (Herbet & Drevon, p. 1026). This is exactly why this case is important. There are very likely many individuals like Mr Al Hassan around the world, taking on “official” roles relating to the administration of justice and other non-military activities in territories controlled by NSAGs (see here for a longer analysis of the case). There is a growing field of scholarship in political and social sciences providing theoretical and empirical insights into this phenomenon.

The facts of Al Hassan case will force the Court to consider the legal significance of an NSAG’s imposition of laws and rules in a territory under its control and the significance of its institutions. How these rules, laws and institutions are perceived by the Court will be relevant to many of the charges, including the crime prohibiting punishments and executions without a fair trial, the definition of gender-based persecution, and the crime against humanity of torture. But the facts of the case will also force the Trial Chamber to deal with a number of deeper questions that relate to the application of IHL.

Aggregation of Intensity Requirement

On the subject of classification, it will come as little surprise to hear that the Defense is arguing that the threshold of a NIAC has not been reached. The famous statement by Professor Baxter in 1974 remains just as true today: “the first line of defence against an accusation of a violation of IHL is to argue that IHL does not apply at all.”[i] But this case is interesting because the Defense is not just arguing that the threshold of IHL has not been met. It is arguing that the way in which the OTP is applying the threshold test is misconceived on several points.

The Defense argues that the OTP is unjustifiably seeking to aggregate hostilities by different groups in Mali when proving that the “intensity requirement” has been met (see closing statements, minute 43). The question of whether aggregation is permissible has long been under discussion in IHL scholarship, prompted by an observation that there are many situations around the world in which multiple NSAGs are fighting at the same time. In such situations, the traditional bilateral approach to conflict classification is widely recognized to be fraught with complication and challenge.

As a result, several scholars – including several notably associated with the ICRC – have argued that it makes sense to assess the intensity criterion cumulatively, in particular when the NSAGs are members of the same coalition. While there is some limited prior practice at the ICC of such a cumulative approach being applied in the Katanga case (Kleffner, p. 173-4), its proposed application has mainly been discussed as an issue of lege ferenda rather than lex lata. Arguments made in scholarship have mainly been argued on the basis of such an approach being more “practically operative” (Redaelli), “more realistic:” (ICRC, p. 51) and “logical” (Nikolic et al).

Moreover, even among authors advocating such an approach, several different approaches can be distinguished. While a first approach—from the ICRC—contends that the intensity requirement could be cumulatively assessed when armed groups are acting in a coalition (see here and here), a different approach argues that it is enough that the groups are fighting in the same area at the same time (Kleffner). Finally, a third view notes that IHL can be applied when armed groups are fighting: (i) in the same geographical region; (ii) at the same time; and (iii) against a common enemy (Redaelli). In light of the uncertainty regarding whether any one of these three approaches can be defended as a matter of law, it will be very interesting to see how the Trial Chamber resolves this argument.

Relevance of Non-Military Parts of an Armed Group

A second issue related to classification concerns the relevance of an armed group’s non-military parts for the purpose of the organization requirement. This is an issue that has been much less noted in scholarship and has not been raised by either party (as far as I know). But I have written about it in a forthcoming chapter on armed groups’ civil and political institutions. Here, I point out that the oft-cited 5-pronged criteria set out in the International Criminal Tribunal for the former Yugoslavia (ICTY) Boskoski case for the organization requirement only mention “military-type” characteristics and take no note of a group’s governance institutions (Boskoski & Tarculovski, paras. 199-206). This raises the interesting question as to whether and how an armed group’s governance institutions should be taken into account in a Trial Chamber’s appraisal of the organization requirement. In my forthcoming piece, I argue that such institutions are legally relevant to the organization requirement, but their presence/ absence should not be decisive of whether the application threshold of IHL has been met. The Trial Chamber’s treatment of this subject will undoubtedly shape future debate.

The Dreaded Nexus Requirement

A third important aspect that the Trial Chamber must address is the proper application of the nexus test in territory under the control of NSAGs. This will be particularly relevant to the charges of war crimes related to the armed groups’ administration of justice (i.e., detention, trial etc.) and the charges that they intentionally directed attacks against buildings dedicated to religion and historic monuments. The application of this test (which I have started calling in my mind “the dreaded nexus requirement”) has the practical effect of differentiating acts that fall within the scope of IHL from those that should be regulated by another legal framework (i.e., domestic law or human rights law). The ICTY Boskoski Trial Chamber stated that: “The nexus requirement serves to distinguish war crimes from purely domestic crimes and also prevents purely random or isolated criminal occurrences from being characterized as war crimes” (Boskoski and Tarculovski, para. 293).

The ICTY Kunarac Appeals Judgment has examined the nexus requirement in the most detail and provides a number of indicators that serve to identify a particular crime as constituting a “war crime.” These include the following: the fact that the perpetrator is a combatant; the fact that the victim is a noncombatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of the military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator’s official duties (Kunarac Appeal Chamber, para. 59). This test has been confirmed by the Trial Chamber in the ICC Ntaganda case (Ntaganda Trial Chamber, para. 732).

A simple examination of these criteria makes it obvious that there could be many scenarios in a NIAC where they would not be fulfilled in territory which is under State control. Imagine for example, a pro-choice protester being sentenced to a 10-year prison sentence in the peaceful capital city at the height of the NIAC taking place 500 km away in the border region, on the back of an unfair fair trial. In such a situation, there might be talk of a human rights violation on the part of the government, but it could not be said the judge committed a “war crime” for sentencing someone at an unfair trial. Equally imagine a police officer inflicting severe pain or suffering on an imprisoned person to force them to confess to killing their neighbor in a fit of rage. If apprehended, the police officer could be prosecuted for grievous body harm or torture and the State could held responsible for torture in front of the Committee against Torture—but no one could seriously accuse the police officer of having committed a war crime.

This raises the question whether the nexus test should be applied in the same manner in armed group-controlled territory. Crucially, the ICRC has recently said that any acts by armed groups when they control territory should be deemed to have a nexus to the armed conflict, because they are exercising this position of power because of the armed conflict (ICRC, p. 53; see also here). In other words, the ICRC argues that IHL applies to every exercise of public power in territory under an armed group control, thus creating a different approach to the notion of nexus when dealing with States and NSAGs. A number of scholars—including me—have expressed concern about such any such blanket view, arguing that everyday life in armed group territory often continues in situations of armed conflict, meaning that it often doesn’t make sense to say that everythingthat happens in armed group controlled territory is governed by IHL (Fortin 2016, p. 173–79; Pothelet2020; Schabas 2017; p. 93–98, Fortin 2022, p. 406-08; Heffes, p. 93-97).

When considering this legal question in relation to the acts of the police and the Islamic Tribunal in Timbuktu, it is important to recall that many armed groups pass laws in the territory under their control, and many also have courts and tribunals. Indeed, some armed groups—like the LTTE or the Autonomous Administration of Northeast Syria—that have held territory for many years, have established courts that hear cases every day. The courts in areas held by the LTTE in the northeast province are famously said to have heard 23,000 cases in 2008. These bodies deal with various issues, such as common crime, debt, and land disputes. Of course, these courts and their procedures are not perfect and may fail to deliver on some judicial guarantees (a situation that, in fact, can also be observed in some States’ courts). But should each of the sentences or judgments delivered by these imperfect courts always amount to a war crime? In my mind, it makes little sense to resolve the nexus test by the fact of the armed group’s control. In Schabas’s words, it renders the acts of the armed group when engaging with governance of territory “inherently criminal“ (see also here) and interferes with the principle of equality of belligerents (here, p. 98). It also results in different rules and standards being applied to each party.

This post is not intended to advocate that the trials conducted by the Islamic Tribunal in Timbuktu did not have a nexus to the armed conflict or that the crimes the groups prosecuted were not connected to the armed conflict. What I do find important is that the Court sets out a nexus test for armed group territory that is duly nuanced. It should not simply say—as the Pre-Trial Chamber did in the Confirmation of Charges decision in the Al Hassan case—that  the nexus requirement is fulfilled because the acts in question took place on armed group territory (see paras. 346, 415, and 486).

Conclusions

The Al Hassan case raises many complex legal issues relating to the application of IHL that will require the judges to navigate the difficult legal landscape of rebel governance. In this landscape, there is no detailed playbook of permitted actions regarding rules and institutions in the armed group’s territory, as there is in the law of occupation. It will not be enough for the judges to carefully study the interpretation of the various IHL provisions and rules. They must also take care to adopt a higher altitude perspective, that ensures their findings give due account to the principles of IHL, the relationship between IHL and other bodies of law (i.e., domestic law and international human rights law) and the global realities of rebel governance.

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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.

Photo credit: Anne Look

[i] Richard R. Baxter, “Some Existing Problems of Humanitarian Law” in The Concept of International Armed Conflict: Further Outlook (Proceedings of the International Symposium on Humanitarian Law, Brussels, 1974) 1-2 (1974).