International Criminal Court (ICC) judges who are handling the case of Malian militant Al Hassan Ag Abdoal Aziz Ag Mohamed Ag Mahmoud have opposed a request by defense lawyers for the judges’ removal from Pre-Trial Chamber I. The judges – Péter Kovács, Marc Perrin de Brichambaut, and Reine Alapini-Gansou – contend that the defense has not provided sufficient grounds to support the chamber’s disbandment.
Last month, the defense asked the court’s Presidency to disqualify all Pre-Trial Chamber I judges, citing their failure to suspend the proceedings after the defense made oral arguments questioning the impartiality of Judge Alapini-Gansou. The defense also faulted the participation of two of the judges in a decision on the relevance of the Ahmad Al Faqi Al Mahdi judgment to factual issues in Al Hassan’s case.
Al Hassan is accused of religious and gender-based persecution, allegedly committed in Mali between April 2012 and January 2013. He allegedly committed the crimes while serving as head of the Islamic Police in the Ansar Dine militia, which the prosecution says 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 for the single war crime of destroying historic and religious buildings.
On the day Al Hassan confirmation of charges hearings started, the defense called for Judge Alapini-Gansou’s disqualification, citing her 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.
Defense lawyers Melinda Taylor and Marie-Hélène Proulx cited Article 41(2)(a) of the court’s Rome Statute, which 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.
In his submissions, Judge Kovács said while Pre-Trial Chamber I had the discretion not to suspend the hearing immediately after the defense’s oral argument, the Appeals Chamber is the appropriate forum to decide whether the chamber exercised its discretion reasonably or it erred in law.
He added, however, that an assessment of the reasonableness of the decision not to suspend hearings would show that the defense suffered no prejudice. “The chamber simply considered that the appropriate course of action was not to cancel the hearing and to hear the arguments of the parties and participants despite the allegations made by the Defense regarding Judge Alapini-Gansou,” said Judge Kovács. “I still remain convinced that it was the most reasonable decision to take.”
For her part, Judge Alapini-Gansou stated that, during consultations before judges were assigned to Pre-Trial Chamber I in March 2018, she informed the Presidency about her previous work on human rights situations in African countries, including Mali. The Presidency reportedly responded that there would be no conflict with her being on the chamber as that work focused on promoting human rights and preceded her ICC appointment.
She said her previous work with the ACHPR and that as an ICC judge are totally different, with the former exclusively related to promoting and protecting human rights, and the current one concerned with proceedings on Al Hassan’s alleged criminal responsibility. A reasonable and informed observer could therefore not question her impartiality in the present case, said Judge Alapini-Gansou.
Meanwhile, Judge Perrin de Brichambaut submitted that while a judge’s past work may appear on first glance to diminish their impartiality, it is necessary to do a deep, fact-based analysis as required by Article 41 to establish if suspending proceedings is necessary.
He added that it would be “a far cry from efficient, expedient proceedings” if the other judges on panel were required to immediately suspend proceedings the moment a party lodges any allegation concerning a judge’s impartiality. Permitting such a practice would open the door to using such requests as a tool to delay litigation on any basis, “bringing proceedings at the court to a screeching halt no matter how unfounded the claims may be.”
Judge Perrin de Brichambaut noted that the court’s statute, rules, and regulations do not provide deadlines as to when disqualification requests can be lodged. However, he said in the current case where information about Judge Alapini-Gansou had been known and publicly accessible for some time before the proceedings, a request to disqualify her should be examined skeptically.
The defense’s request to disqualify the pre-trial chamber also cited the participation of Judge Kovács and Judge Alapini-Gansou in the Plenary of Judges deliberations on Judge Perrin de Brichambaut. The defense had sought Judge Brichambaut’s disqualification, mostly because of his statements on the Ansar Dine militia, but this request was rejected.
To Judge Kovacs, the reference by Judge Perrin de Brichambaut to Ansar Dine as a “Salafist armed group” was “general” and merely meant it was a movement that possessed arms. He said this was different from saying there were substantial grounds to believe that Ansar Dine was an armed group whose degree of organization met the requirement to be considered an “organized armed group” as defined by the ICC.