International Justice Monitor

A project of the Open Society Justice Initiative

Defense and Prosecution Ask for Mali Trial to Start in August

Both the defense and prosecution have asked trial judges to start the International Criminal Court (ICC) trial of Malian Islamic rebel leader Ahmad Al Faqi Al Mahdi in late August or early September.

A trial date was one of the issues discussed during a status conference Trial Chamber VIII held on May 24. The purpose of the status conference was for the judges to ask questions on the submissions the defense and prosecution made last week. The two parties made a joint written submission on May 19 following an order by Trial Chamber VIII’s Single Judge Raul C. Pangalangan. The joint submission was filed under confidential cover, but Judge Pangalangan, the defense, and prosecution referred to parts of it during the open session of Tuesday’s status conference.

Other issues discussed on Tuesday were the application for victims to participate in the trial that was made on May 20; al Faqi’s intention to plead guilty; the duration of the opening statements the defense and prosecution will make; and the number of witnesses each party will call.

Al Faqi indicated on March 1, during the confirmation of charges hearing, that he wanted to plead guilty to the single war crime charge he is facing for allegedly completely or partially destroying historic buildings in the northern Mali city of Timbuktu between June 30 and July 11, 2012. Pre-Trial Chamber I confirmed the charge on March 24.

In the May 6 order, Judge Pangalangan indicated the chamber wanted to start the trial in mid-June. In response, the defense and prosecution said in their joint submission they would want the trial to start on August 25 or later.

The reasons they gave included trial hearings at the Special Tribunal for Lebanon scheduled for June that al Faqi’s lead lawyer, Mohamed Aouini, is taking part in. Another reason the two parties gave was the month of fasting for Muslims, Ramadan, will be in June.

During Tuesday’s status conference, the chamber ordered that the parties file a public redacted version of their joint submission by 4:00pm on June 17.

Judge Pangalangan observed during Tuesday’s status conference that the Registry had received on Friday applications from victims to participate in the case. The judge said Paolina Massidda from the Office of Public Counsel for Victims had been appointed to represent the candidate victims on Monday. He said the chamber ordered that the defense and prosecution have until June 1 to file any responses to the candidate victims’ application to participate in the case. Judge Pangalangan also said the chamber ordered the Registry to verify the details of the victims and report back by June 1.

Unlike other cases before the ICC, al Faqi’s case has not had victims participating from the pre-trial phase. It is unclear why this is the case.

In response to the chamber’s question as to whether al Faqi understood the consequences of taking a guilty plea, Aouini explained that his client had first indicated he wanted to plead guilty when he was arrested in Niger in September last year.

The chamber wanted to know whether al Faqi understood that pleading guilty meant he would not argue his side of the case and could have an impact on his sentencing. The chamber also wanted to know whether al Faqi understood making a guilty plea could expose him to reparations claims.

Aouini said he was al Faqi’s lawyer when he was arrested in Niger in September last year, and al Faqi told him he was sorry for what had happened. Al Faqi also wanted to apologize to the residents of Timbuktu and the people of Mali. Aouini said he advised al Faqi to think about the consequences of taking a guilty plea for a few days before making a final decision. He said that after being transferred to The Hague al Faqi maintained he wanted to make a guilty plea.

The prosecution indicated that they intend to call three witnesses during the trial. The defense said they are considering calling two witnesses.

On the issue of sentencing, if the chamber accepts al Faqi’s guilty plea, the defense and prosecution stated they had no objection to the chamber issuing a judgement and sentence at the same time. Judge Pangalangan observed during the status conference that both parties had submitted the sentencing range they consider appropriate, but he did not give any details.

Al Faqi may have indicated his intention to plead guilty, but the chamber is not bound by such a plea. Article 65 of the ICC’s founding law, the Rome Statute, requires a trial chamber to determine whether the prosecution’s evidence supports a guilty plea. It is only after this that a chamber can issue a judgement and, in case of a conviction, determine a sentence.

The buildings al Faqi is charged with having planned the destruction of and participated in the complete or partial destruction of are: the Sidi Mahamoud Ben Omar Mohamed Aquit Mausoleum; the Sheikh Mohamed Mahmoud Al Arawani Mausoleum; the Sheikh Sidi El Mokhtar Ben Sidi Mouhammad Al Kabir Al Kounti Mausoleum; the Alpha Moya Mausoleum; the Sheikh Mouhamad El Mikki Mausoleum; the Sheikh Abdoul Kassim Attouaty Mausoleum; the Sheikh Sidi Ahmed Ben Amar Arragadi Mausoleum; the door of the Sidi Yahia Mosque; the Bahaber Babadie Mausoleum and the Ahmed Fulane Mausoleum, both adjoining the Djingareyber Mosque.

On March 17, the defense and prosecution made a joint application in French to change the spellings of the names of two buildings referred to in the prosecution’s submissions. They made the application after the defense raised the issue with the prosecution. The buildings in question are the Sheikh Mouhamad El Mikki Mausoleum and the Ahmed Fulane Mausoleum. The change is to Mikki from Micky in the case the Sheikh Mouhamad El Mikki Mausoleum. The change is to Ahmed from Ahamed in the case of the Ahmed Fulane Mausoleum.

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