In their judgement against former Malian Jihadist Abdoulaziz Al-Hassan, the three judges of the International Criminal Court never fully agreed. And when two of them agreed, it wasn't for the same reason. To many, it may look as an embarrassment. But scholar Lucy Gaynor wonders if this ICC fractured trial and judgement doesn't also reflect the dilemmas of the international court today.
On Wednesday 26 June 2024, a panel of three ICC judges - Antoine Kesia-Mbe Mindua (Democratic Republic of the Congo), Tomoko Akane (Japan), and Kimberly Prost (Canada) - handed down their verdict in the case of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud. The case against 'Mr. Al Hassan' was protracted, complicated, and controversial. His alleged crimes were committed in 2012 and 2013. He surrendered to the court in 2018. Charges were first confirmed against him in 2019, before being amended in 2020. The trial itself lasted 3 years: 2020-2023. With a judgement originally scheduled for January 2024, an illness affecting Presiding Judge Mindua caused an unforeseen and unspecified delay. The length of, and reasoning for this delay was communicated in fits and starts, with an opacity that frustrated not just trial observers, but also trial parties.
Finally, the judgement that was delivered consisted of a mosaic of disagreements between the three judges. Accused of 14 counts of war crimes and crimes against humanity, Al Hassan was convicted of 8 counts and acquitted of 6. All decisions were reached by majority, rather than unanimity. Responses to the judgement were equally fractured: disappointment among victims and advocates, confusion among legal scholars, exasperation from trial monitors.
It might sound like a mess. Perhaps it is. Or perhaps - much like a certain pop megastar currently touring the globe - the International Criminal Court is simply in a new 'era': one which reflects the messiness and unpredictability of the modern international criminal justice project.
A fractured trial
Contentiousness, in the Al Hassan case, began during the Office of the Prosecutor's investigations. Al Hassan's defence team, led by Melinda Taylor, tried to have proceedings terminated before they had even begun. Prosecutors interviewed Al Hassan on 19 occasions over a period of 8 months while he was being held in the headquarters of Mali's Directorate of State Security (DGSE) in Bamako. Taylor alleged that these statements provided by Al Hassan were "tainted" due to his subjection to various forms of torture. Relying on expert assessments from a forensic physician and a psychologist, alongside several former DGSE detainees and NGO reports, Al Hassan's defence alleged he had been subjected to waterboarding, electrocution, sensory torture, threats of death, and mock executions, among others. The defence accusations did not halt the proceedings. Trial monitors were forced to wait out the trial to see whether Al Hassan's allegedly tainted evidence would be treated as reliable. The question of torture thus cast a continuous and problematic shadow. These torture allegations, combined with the opacity of the three-year trial that made proceedings difficult to follow, caused even the most committed and enthusiastic trial monitors to "stop monitoring", said monitor Thijs Bouwknegt in frustration after the verdict.
The announcement on 15 January 2024 - just 3 days before the initial verdict date - that the judgement in the case would be postponed "due to the presiding judge's current health situation" caused further rumblings of discontent. By mid-March, frustration with both the delay and the Court's lack of communication regarding Judge Mindua's health and a possible rescheduled date, had some observers speculating that the Court was about to acquit Al Hassan but was nervous about doing so. Others went further, speculating that perhaps with the swearing in of 6 new judges to the court, and the inevitable shake-up that would follow, Judge Mindua (whose mandate was expiring in March 2024), was remaining absent as some kind of career move. By April 2024, when the judgement was finally rescheduled, the fractured trial and judgement delivery process ensured that the frustrated and sceptical eyes of many - monitors, victims, and advocates alike - would be trained intently on the Trial Chamber.
A fractured judgement
The judgement, when it came, was surprising, convoluted, and unusual in equal measure. Over 822 pages, the bench "by majority" convicted Al Hassan of 8 counts of war crimes and crimes against humanity. He was acquitted of involvement in sexual slavery, rape, forced marriage as an inhumane acts, and attacks against protected objects in the form of the destruction of mausoleums. Most noticeable was the lack of consensus among judges. Their sole point of consensus was Al Hassan's acquittal on the charge of attacks against protected objects, as a war crime. They noted that "there is insufficient evidence" to demonstrate that Al Hassan had taken "any particular action or had a specific role" in the demolition of Timbuktu's mausoleums.
The shadow over Al Hassan's own statements was clearly not one which chilled the judges. The statements he provided while detained in Bamako were accepted by the bench as reliable. Stating that they considered there to be "no issue as to a lack of voluntariness", the judges noted that Al Hassan was "well treated during the course of his interviews [with the Office of the Prosecutor], being given water and tea as well as regular breaks for meals and prayers". "Mr. Al Hassan's statements" were referred to 470 times in the footnotes of the judgement, indicating the extent to which the judges not only found his evidence credible, but relied upon it.
The 'persecution' conviction was not only a divisive one among judges, but caused a scramble of confusion among experts. Al Hassan was convicted for persecution on religious grounds as a crime against humanity. The judgement proper contained extensive discussion of persecution on "religious/gender" grounds. But the term 'gender' was absent in the concluding verdict. Experts, even ones who work in advisory roles at the ICC, were confused. In the end, the persecution charge epitomised the division between the judges. Judges Akane and Prost were willing to convict Al Hassan for persecution on religious grounds as a crime against humanity. Judge Mindua was not willing to convict Al Hassan on any charges. So when Judge Akane then dissented on the question of gender persecution, that left only Canadian judge Prost in favour of conviction.
A maverick dissent
The confusion over this conviction not only characterised the deep division between the judges, but also reflected the lack of transparency that has dogged this case from the start. When it came to the question of persecution it was not immediately clear why the word 'gender' had been dropped in the final accounting. Unlike Akane and Prost's dissenting opinions, Mindua's dissent was not published alongside the judgement, contrary to the rules of the Court. Mindua's opinion only appeared, without fanfare, four days later, only in French. As such, we had to initially read Prost's dissenting opinion to confirm that Mindua was of the view that "Al Hassan is not guilty of all charges because of the application of certain defences namely duress...and mistake of law".
Judge Mindua's dissent is a 52 page document that seems - in terms of the jurisprudence of the Court - to be provocative, if not downright heretical. There appears to be a deep disagreement among the judges about gender rules under Ansar Dine's interpretation of Sharia law. The judgement - with its quiet dropping of the word gender - was clearly unwilling to raise the issue in the chamber. Mindua, on the other hand, did not hold back:"Many people in the West have asked themselves whether Sharia law is compatible with human rights? It is a practical question that needs to be answered," he wrote. Finding that flogging and amputations could amount to torture, but the death penalty did not constitute, technically, an illegal sanction under international law, Mindua came to the conclusion that Al Hassan believed he was implementing a correct and just law.
The defence of duress was discussed in the judgement in terms of jurisprudence from the case of Dominic Ongwen before the ICC. Ongwen - a former child soldier turned commander in Joseph Kony's Lord's Resistance Army (LRA) in Uganda - was convicted of 61 counts of war crimes and crimes against humanity in 2021. Ongwen's defence of duress, based also on his socialisation to the LRA as a child soldier after his own abduction at age 9, was dismissed. Al Hassan's trial chamber cited Ongwen's jurisprudence that "a claim of duress is unavailable" if the threat of death or serious harm "is not going to materialise sufficiently soon". Mindua's dissent - though somewhat heretical in terms of established jurisprudence at international tribunals (which has systematically dismissed duress as a defence) - will undoubtedly feed the debate over the ICC's trouble with its 'victim-perpetrator' dichotomy. Mindua argued that the Ongwen Appeals Chamber interpreted duress "too narrowly, with the danger of rendering it meaningless". This somewhat reflects the dissenting opinion of international legal giant Antonio Cassese in the infamous case of Drazen Erdemovic at the UN Tribunal for the former Yugoslavia. Mindua's discussion of duress will no doubt be relitigated should the prosecutor decide to appeal. Once again, it seems, the ICC will have to grapple with a grey zone of perpetration for which is has no appetite.
CONCLUDING PARAGRAPH OF THE AL HASSAN JUDGMENT BEFORE THE ICC
"Judge Akane appends a separate and partly dissenting opinion to the present Judgment; Judge Prost appends a separate and partly dissenting opinion to the present Judgment; and Judge Mindua appends a separate and partly dissenting opinion to the present Judgment."
Division as the future?
The absence of gender from the persecution count, combined with his acquittal for other forms of sexual and gender-based violence, provoked a strong reaction among many. The head of a victims association decried these acquittals, saying that the ICC has "abandoned women". Clearly aggrieved, dissenting judge Prost claimed there was not a "scintilla of evidence" to support acquitting Al Hassan on the basis that he faced compulsion to partake in the activities of Ansar Dine in Timbuktu (which was Mindua's view). It does not appear that Prost engaged at all with the basis for Akane's dissent on the gender charges, which was that the factual basis for the rape and sexual slavery charges was flawed. While the judgement raised important legal issues regarding sexual violence, the three dissents all approached the issue from different angles, somehow managing to obscure them further. This undoubtedly provides fuel for an appeal. It remains unclear how the issue will be dealt with when it is raised once again before a wider panel of judges.
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The judges' divergence is striking, though not necessarily disappointing. The closing paragraph of the judgement proclaims the forthcoming dissenting opinions of all three judges. This demonstrates a Trial Chamber that is willing to debate issues of complicated and contentious justice. The extensive dissenting opinions from all three judges show an impressive willingness not only to disagree, but to lay out the nature of that disagreement. Judge Akane, for example, wrote a 39-page opinion, despite the fact that she was not once the lone dissenter. Dissenting "for different reasons" to Judge Mindua, it is admirable (and important) that she is willing to provide so much detail on her legal reasoning. Mindua's dissent only really discusses Al Hassan himself towards its end. Mostly, it reads like his treatise on contentious issues of international law. Given that deliberations of ICC judges are conducted entirely in private such well-clarified dissents, should they become a more regular feature in the Court's new era, may well prove invaluable. A new era of debate and dissent among ICC judges, bringing more of their logic into the open, would allow for better research into judicial decision making.
It strikes me as unlikely that the last word has been heard of Al Hassan at the ICC, sentencing aside. Prosecutor Khan has already insinuated the possibility of an appeal. It would also be surprising if Al Hassan's defence counsel did not take advantage of the division among the judges to appeal his convictions. The Al Hassan case has thus far epitomised simultaneously the most frustrating past trends of the ICC, and indicated the potential future reality for the Court: a house further divided on issues of both fact and law. While messy, confusing, and often anger-inducing, the Al Hassan case may well become a touchstone for many of future trends - both positive and negative - of 21st century international criminal justice.
