Judgment in the appeal against the admissibility at the International Criminal Court (ICC) of the case against former Malian militant, Al Hassan Ag Abdoal Aziz Ag Mohamed Ag Mahmoud, will be delivered on Wednesday, February 19. His trial is scheduled to commence on July 14, 2020.
On September 30, 2019, Pre-Trial Chamber I confirmed the charges against Al Hassan, including torture, rape, sexual slavery, forced marriages, persecution, and intentionally directing attacks against buildings dedicated to religion and historic monuments. It subsequently rejected a defense request for leave to appeal the confirmation decision.
Nonetheless, the defense last October filed a notice of appeal asking the Appeals Chamber to overturn a separate pre-trial chamber decision and find the Al Hassan case inadmissible. The defense contends, in filings initially made last July, that the case is inadmissible under Article 17(1)(d) of the court’s statute because it is not of sufficient gravity to justify further action by the ICC.
The defense argues that the limited scope of the charges against Al Hassan, his low rank, and relatively minor role in the events over which he is charged mean that the prosecutor has not established that the case satisfies the quantitative and qualitative criteria to be of sufficient gravity for trial before the court.
Article 17(1)(d) provides that the court shall determine that a case is inadmissible where it is not of sufficient gravity to justify further action by the court. Challenges to admissibility may be made by an accused or a person for whom a warrant of arrest or a summons to appear has been issued.
Al Hassan was transferred to the ICC in March 2018, the same month an arrest warrant was issued against him. The prosecution alleges crimes of religious and gender-based persecution against him, 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.
On September 27 last year – three days before issuing the confirmation of charges decision – Pre-Trial Chamber I dismissed the admissibility challenge. The chamber cited previous rulings of the Appeals Chamber that exclusion of certain categories of perpetrators from the exercise of the jurisdiction of the court, especially those not considered to be “the highest ranking”, “could severely hamper the preventive, or deterrent, role of the court which is a cornerstone of the creation” of the ICC. The pre-trial judges stated that the purpose of Article 17(1)(d) is not to oblige the court to choose only the most serious cases, but merely to oblige it not to prosecute cases of marginal gravity.
“The case brought by the Prosecutor against Al Hassan is sufficiently grave within the meaning of article 17(1)(d) of the Statute to justify further action by the court,” the chamber ruled. It noted that this finding was without prejudice to the determination to be made on whether there were substantial grounds to believe that Al Hassan committed each of the crimes charged, which would be addressed in the confirmation decision.
Contrary to the defense argument, the chamber said it could not exclude aspects of the prosecutor’s allegations because of a purported lack of evidence, as this would amount to assessing the available evidence, and would therefore be part of determining the merits of the charges presented by the prosecutor. Rather, the chamber would entertain only the prosecutor’s allegations against Al Hassan and not the question whether they were sufficiently supported by the available evidence.
Furthermore, the chamber considered that it could not exclude prosecution allegations on contextual elements of the alleged crimes because a determination of the gravity of the case must be based on all relevant aspects of the prosecution’s allegations.
Regarding the defense submission that only acts committed against identified persons may be taken into account in considering the quantitative criterion of gravity, judges said it was unnecessary, especially at confirmation of charges stage, to identify the victims, in particular in the case of the crime of persecution. They explained that several aspects of the prosecutor’s allegations as set out in the Document Containing the Charges, were relevant to determining the gravity of the case.
Last September, the plenary of judges at the ICC unanimously dismissed a defense request to disqualify all judges of Pre-Trial Chamber I – 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.
The defense had requested the court’s Presidency to disqualify all Pre-Trial Chamber I judges due to 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 allegedly created an appearance that the pre-trial chamber had predetermined factual issues in Al Hassan’s case.