International Justice Monitor

A project of the Open Society Justice Initiative

Al Faqi Tells Chamber He Intends to Plead Guilty to War Crime Charge

Ahmad Al Faqi Al Mahdi has informed the International Criminal Court (ICC) that he would like to plead guilty to a single war crime charge of destroying or partially destroying historic buildings in the northern Mali city of Timbuktu.

Al Faqi informed the court of his decision on March 1, but the details of what he said have only become public this week.

The Malian Islamic rebel leader made his intention known during a hearing Pre-Trial Chamber I held on March 1 to listen to the prosecution argue why the chamber should confirm the charge against him. During the pre-trial phase of a case, a suspect is not required to enter a plea. The focus of the pre-trial phase at the ICC is on whether the prosecution’s evidence shows there is “substantial grounds” for a case to go to trial.

ICC Prosecutor Fatou Bensouda said that Al Faqi’s decision is the first time a suspect has stated the intention to plead guilty in a case before the ICC.

“Such an admission of guilt, provided for in Article 65 of the [Rome] Statute, will be a milestone in the history of the ICC,” said Bensouda in a press statement on Thursday last week. This is the same day Pre-Trial Chamber I unanimously confirmed the charge against Al Faqi.

Al Faqi’s wish to plead guilty was made during a closed session of the March 1 hearing. The relevant paragraphs of that closed session of the March 1 hearing have now been reclassified as public. This was on the order of the Single Judge of Pre-Trial Chamber I, Judge Cuno Tarfusser, who issued it on Thursday last week.

The redacted English version of the transcript of the March 1 hearing, however, was only posted on the ICC’s website this week.

In it, Presiding Judge Joyce Aluoch is recorded as asking the defense, while the court is still in closed session, whether they wished to say anything. According to the transcript, Judge Aluoch asked this question somewhere between 2:40 pm and 3:07 pm. It is unclear from the transcript what prompted Judge Aluoch to ask this question. The paragraphs before Judge Aluoch asked the question are redacted.

Al Faqi’s lawyer, Mohamed Aouini, responded that his client wished to address the court and after that he, Aouini, would also address the court.

Al Faqi, who spoke through an interpreter, told the court that he has listened, through the Arabic interpretation, as the charge against him was read out in court and he understood clearly what the charge was.

“And having taken legal advice, presented to me by Mr Aouini and his colleague, and through their assistants, I was made fully aware of the scope of the charges brought against me. I was also made aware of the charges brought against me. I would like to plead guilty,” Al Faqi told the court.

“I have not come under any pressure. I am fully aware of the meaning of the pleading guilty and the consequences that are – I am likely to face as a result of these charges. The testimony, the information provided reflect the truth. Thank you, Madam President,” Al Faqi concluded.

According to the transcript, Al Faqi’s lawyer confirmed, through an interpreter, what his client had said. During the public sessions of the March 1 hearing, Aouini addressed the court in Arabic, and his comments were translated by an interpreter.

“Mr Al Faqi has pleaded guilty. He is fully aware, through full knowledge, what the consequences are for pleading guilty. He has confirmed the accuracy of the charges against him by the Prosecution. They reflect the truth. And he was made aware of all the elements related to these charges. He had the opportunity to examine every piece of evidence that was presented against him,” Aouini said.

Aouini had stated during the public part of the March 1 hearing that Al Faqi had declined to make any defense at that stage but would make arguments at a later stage of the proceedings. At the time, it seemed Al Faqi was preparing to defend his case. Now it is clear this is not the case.

The next step in this case is for the ICC Presidency to assign it to a trial chamber. That chamber will be responsible for taking Al Faqi’s guilty plea, making sure he understands the consequences of such a plea, and that he is doing so voluntarily. The trial chamber will then determine whether the facts of the case support a guilty plea. Depending on the conclusion the chamber may reach, the chamber may decide to convict Al Faqi. This is according to Article 65 of the Rome Statute, which sets out how a trial chamber is to conduct proceedings in case an accused person pleads guilty.

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