The International Criminal Court (ICC) confirmation of charges hearing for Malian militant Al Hassan Ag Abdoal Aziz Ag Mohamed Ag Mahmoud was overshadowed by his lawyers' request to remove all the judges currently handling his case.
Besides questioning the impartiality of two of the three judges, the defense also alleges various violations of the accused's right to a fair trial. Pre-Trial Chamber I is composed of Judge Péter Kovács (presiding judge), Judge Marc Perrin de Brichambaut, and Judge Reine Alapini-Gansou.
Al Hassan, who has been in the court's detention for 15 months, is accused of religious and gender-based persecution, allegedly committed in the west African country of Mali between April 2012 and January 2013. The confirmation of charges hearing took place in at the ICC in The Hague from July 8 to 17.
The purpose of a confirmation of charges hearing is for judges to determine whether the prosecution's evidence is sufficient for the case to proceed to trial. The judges can decline to confirm the case.
Al Hassan is the second person charged at the ICC over crimes committed by the Ansar Dine. In 2016, Ahmad Al Faqi Al Mahdi, the alleged former leader of the morality brigade in the militia, was convicted on his own guilty plea for destroying or partially destroying nine historic buildings and the door to a mosque. He was sentenced to nine years in prison.
Prosecution's Charges Against Al Hassan
During the confirmation of charges hearing, the prosecution said Al Hassan served as head of the Islamic Police in the Ansar Dine militia, which allegedly terrorized residents of Mali's ancient city of Timbuktu. Prosecutors said once the militia took control of the city during an armed conflict, it introduced rules that, among others, subjected women and girls to sexual violence.
"Women and girls were pursued into their very homes; they were abused, punished, beaten, imprisoned, and subjected to corporal punishment," said prosecutor Fatou Bensouda. Reasons for attacking women and girls included "failure to wear clothing prescribed by the militants, giving water to a man, and not having gloves at the market to pay and receive money."
Prosecution evidence also shows that Al Hassan "was personally involved in organizing the infliction of physical abuse in public on women accused of adultery." Further, it shows that many women and girls were forced into marriage, confined against their will, and repeatedly sexually assaulted and raped by one or more members of the Ansar Dine and affiliated milia.
The prosecution also claims Al Hassan arrested, interrogated, and participated in the torture of suspects to extract confessions; participated in organizing and imposing violent punishments; and personally carried out or participated in organizing floggings, including of women.
The prosecution alleges that Ansar Dine banned religious practices at tombs and mausoleums of Muslim saints; segregated the sexes; banned women from wearing jewelry, make-up, and their traditional clothing; and imposed a new dress code on men and women. The group is alleged to have introduced corporal punishment, which its Islamic Police applied on the spot on those who broke the newly imposed rules.
Among the prosecution's evidence is telephone call data that it claims places Al Hassan at scenes of crime and shows that he participated in committing those crimes.
Defense Response to the Charges
The defense dedicated little time to challenging the prosecution allegations. Instead, it dwelt mostly on showing that Al Hassan's fair trial rights had been violated. Still, the defense said prosecution evidence was "hazy," riddled with inconsistencies and insufficient to sustain the alleged charges.
In response to the prosecution's telephone call data presented as evidence, the defense countered that it is "so weak and incoherent that it can't even stand the test of a simple analysis."
Concerns about Judge Alapini-Gansou's Impartiality
On the day confirmation hearings started, the defense called for Judge Alapini-Gansou's disqualification. It stated that, in 2013, Judge Alapini-Gansou served as an envoy of the African Union on a fact-finding mission on crimes allegedly committed in Timbuktu in 2012. According to the defense, Judge Alapini-Gansou subsequently served as a commissioner of the African Commission on Human and People's Rights and headed a mission to Mali. The role of the mission was to document human rights abuses, follow domestic cases and investigations, and advise on observed human rights violations.
Article 41(2)(a) of the court's Rome Statute states that a judge shall be disqualified from a case if they have previously been involved in any capacity in a case before the court or in a related criminal case at the national level involving the person being investigated or prosecuted. The defense considers that Judge Alapini-Gansou's prior involvement in advising and investigating facts related to domestic proceedings against Al Hassan and other Ansar Dine members has impacted on the impartiality of the proceedings.
The Defense Bid to Disqualify Judge Brichambaut
Last month, the defense sought the disqualification of Judge Brichambaut from Pre-Trial Chamber I, arguing that since his appointment as an ICC judge, he had continued to engage in a variety of professional activities geared to advancing France's political and military interests. In this capacity, said the defense, the judge had made multiple pronouncements on factual issues yet to be adjudicated in the Al Hassan case.
The defense claimed the judge had published joint position papers under the name of Le Club des Vingt, maintained a position as administrator of the Forum du Futur, and held honorary membership of the Conseil d'État. In response, Judge Brichambaut said his personal interest in these organizations was so small that it could not affect his decision in the confirmation of charges. The request to remove him from the chamber was rejected a week before the confirmation hearing commenced.
The Bid to Change Pre-Trial Chamber I's Composition
On July 11, the defense requested the court's Presidency to remove all current judges of Pre-Trial Chamber I from Al Hassan's case. The defense cited the participation of Judge Kovács and Judge Alapini-Gansou in the Plenary of Judges deliberations on Judge Brichambaut. In turn, the defense contended that because of arguments raised by the defense concerning Judge Brichambaut's statements on Ansar Dine, Judge Alapini-Gansou must have been aware that those arguments were equally applicable to her and that there was an appearance that she had a personal interest in the outcome of the decision.
The defense cited Judge Alapini-Gansou's previous involvement with the case and stated it was apparent that Pre-Trial Chamber I as a whole declined to take any steps to protect the integrity of the confirmation proceedings in light of the information raised by the defense.
On the Adequacy of Prosecution Evidence
Defense lawyers Melinda Taylor and Marie-Hélène Proulx claimed Al Hassan's fundamental right to receive adequate time and facilities to prepare his defense case was violated when the prosecution raised, at the confirmation hearing, material allegations and facts that were not in the Document Containing the Charges (DCC). They said some of those allegations relate to alleged crimes and the role of the accused.
Defense lawyers said the prosecution had not shown that Al Hassan was involved in the inception of Ansar Dine's alleged common plan to commit crimes. The prosecution had hence not shown how he contributed to material elements of the charged crimes. Whereas the prosecution said Al Hassan played "an essential and undeniable role in the system of persecution" in Timbuktu, the defense responded that there was "surprisingly little evidence of what Al Hassan's role was in implementing the alleged crimes."