Mali: Why ICC Judges Rejected a Request to Disband Pre-Trial Chamber I

The plenary of judges at the International Criminal Court (ICC) have unanimously dismissed a defense request to disqualify all judges of Pre-Trial Chamber I that is handling the case of Malian militant Al Hassan Ag Abdoal Aziz Ag Mohamed Ag Mahmoud. Pre-Trial Chamber I is composed of judges Reine Alapini-Gansou, Péter Kovács, and Marc Perrin de Brichambaut.

In the same decision, which was reached on August 19 but whose reasoning was published on September 12, a majority of judges also rejected a related request to disqualify Judge Alapini-Gansou from the chamber. Accordingly, the majority determined that the request to disband the entire chamber was moot because it concerned the claim that there was an appearance of lack of impartiality on the part of the entire pre-trial chamber because it failed to protect the integrity of the proceedings after receiving complaints about Judge Alapini-Gansou.

On July 11, the defense asked the court's Presidency to disqualify all Pre-Trial Chamber I judges, citing their failure to suspend the confirmation of charges proceedings after the defense made oral arguments questioning the impartiality of Judge Alapini-Gansou. The defense also faulted the participation of Judge Péter Kovács and Judge Alapini-Gansou in the plenary deliberations concerning an earlier defense request to disqualify Judge Perrin de Brichambaut because it created an appearance that the pre-trial chamber had predetermined factual issues in Al Hassan's case.

Last June, the Al Hassan defense filed a request to disqualify Judge Perrin de 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 request was dismissed a week before commencement of the confirmation hearing.

The plenary determined in the August 19 decision that no reasonable well-informed observer would conclude that there was an appearance that, by participating in the plenary deliberation concerning Judge Perrin de Brichambaut, judges Kovács and Alapini-Gansou had predetermined the issue of applicability of findings on Ansar Dine in the Ahmad Al Faqi Al Mahdi judgement to the Al Hassan case.

The prosecution alleges the crimes of religious and gender-based persecution against Al Hassan, purportedly committed in Mali between April 2012 and January 2013, while he served as head of the Islamic Police in the Ansar Dine militia that terrorized residents of the ancient city of Timbuktu. In 2016, ICC judges convicted Al Mahdi for his involvement in the same conflict and handed him a nine-year prison sentence.

Regarding the claims against Judge Alapini-Gansou, defense lawyers argued that she had prior involvement in advising and investigating facts related to domestic proceedings against the defendant. The judge formerly served as an envoy of the African Union on a fact-finding mission on crimes committed in Timbuktu in 2012 and as a commissioner of the African Commission on Human and People's Rights (ACHPR) where she headed a mission to Mali in 2013 and 2014. The defense said the role of the mission was to document human rights abuses, follow domestic cases and investigations, and advise on observed human rights violations.

According to the majority's determination, none of the information presented by the defense would rebut the presumption of judicial impartiality on Judge Alapini-Gansou's part. The majority considered that a reasonable well-informed and fair-minded observer, taking into consideration all relevant information, would not conclude that the judge "has previously been involved in an investigative or advisory capacity in the Al Hassan case, nor would such observer conclude that her appearance of impartiality is undermined."

Three of the judges who attended the plenary - Robert Fremr, Howard Morrison, and Geoffrey Henderson - disagreed with the majority on the request to disqualify Judge Alapini-Gansou. The minority stated that certain statements in the reports prepared by Judge Alapini-Gansou appear to make conclusions on alleged crimes committed by Ansar Dine in Timbuktu, which Al Hassan, as an alleged member of the militia, is charged with.

As a result, the three judges considered that a fair-minded reasonable observer, having assessed the statements and their linkage to the charges against Al Hassan, could reasonably conclude that Judge Alapini-Gansou's appearance of impartiality was undermined.

The judges who dismissed the entire defense request are Chile Eboe-Osuji, Olga Herrera Carbuccia, Piotr Hofmański, Antoine Kesia-Mbe Mindua, Bertram Schmitt, Chang-ho Chung, Raul Pangalangan, Solomy Bossa, Tomoko Akane, Kimberly Prost, and Rosario Aitala.

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.

Before the plenary decided on the request to disqualify the entire chamber, the judges of Pre-Trial Chamber I made individual written submissions in which they all stated that the defense had not provided sufficient grounds to support the chamber's disbandment.

The majority determined that the mandate of the bodies Judge Alapini-Gansou worked with before joining the ICC was monitoring and assessing the human right situation in Mali, and not establishing individual criminal responsibility. They stated that investigations aimed at establishing human rights violations apply standards that are significantly different from those applied for establishing individual criminal responsibility in the context of criminal cases. They hence affirmed that the judge's previous work did not undermine her appearance of impartiality.

In the ruling, the judges faulted the defense for raising the issue of Judge Alapini-Gansou's previous work during the confirmation of charges hearing, yet such information had been in the public domain for some time.

On Monday, Pre-Trial Chamber I unanimously issued a confidential decision confirming the charges of war crimes and crimes against humanity against Al Hassan, according to a statement from the court. The defense has a right to seek permission to appeal the confirmation of charges.

The alleged charges include torture, rape, sexual slavery, forced marriages, persecution, and intentionally directing attacks against buildings dedicated to religion and historic monuments. In the coming days, judges will issue a redacted version of the confirmation of charges decision.

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