Why the Appeals Chamber Rejected the Al Hassan Case Admissibility Challenge

The Appeals Chamber at the International Criminal Court (ICC) has rejected the admissibility challenge that war crimes accused Al Hassan Ag Abdoal Aziz Ag Mohamed Ag Mahmoud lodged last July. In its ruling, the Appeals Chamber made determinations on what elements constitute the gravity of a case to warrant the court to handle it.

Al Hassan argued in his appeal that his case was inadmissible at the ICC because it is not of sufficient gravity to justify further action by the court. His argument was anchored on Article 17(1)(d) of the court’s Rome Statute, which 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.

In the ruling, the Appeals Chamber rejected all grounds of appeal, ruling that the pre-trial chamber did not err in its determination that the case against Al Hassan meets the gravity requirements of Article 17(1)(d). It determined that the gravity requirement under this article aims at “excluding those rather unusual cases where the specific facts of a given case technically qualify as crimes under the jurisdiction of the court, but are nonetheless not of sufficient gravity to justify further action.”

Furthermore, the judges stated that the gravity assessment under Article 17(1)(d) must be made on a case-by-case basis, but this assessment should involve a holistic evaluation of all relevant quantitative and qualitative criteria. The relevant qualitative criteria include the nature, scale, and manner of commission of the alleged crimes, including the human rights violated as a result, their impact on victims, the role and degree of participation of the accused, and whether the acts were committed on the basis of discriminatory motives.

In the appeal, the defense argued 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 ICC. The defendant argued that the pre-trial chamber erred by adopting an overly broad and erroneous definition of the case for the purposes of admissibility by artificially inflating the gravity of the case on the basis of irrelevant considerations.

However, the Appeals Chamber found that Al Hassan’s alleged conduct as set out in the Document Containing the Charges (DCC) indicates his alleged contribution to the crimes was not minimal. The allegations include him personally flogging three individuals; giving instructions or transmitting orders to members of the Islamic Police; taking action against members of the Islamic Police, and making decisions concerning offenses against them, or investigating complaints about them.

Appeals judges also noted that the DCC shows that Al Hassan allegedly took part in police patrols and in the arrest and detention of civilians. He also allegedy, according to judges, led or participated in the work of the police dealing with numerous cases of men and women accused of violating the new rules, such as the prohibition of adultery, theft, drinking or selling alcohol, smoking or selling cigarettes or tobacco, wearing talismans or practicing witchcraft, or violating the dress code imposed.

Further, on the question of whether Al Hassan made an essential contribution to the crimes, appeals judges noted that the court’s statute recognizes other modes of criminal liability that do not require an essential contribution. Accordingly, if Al Hassan’s argument were to be accepted, “cases based on these modes of responsibility would automatically lack sufficient gravity to justify further action by the Court – a clearly unreasonable result that cannot have been intended by the drafters of the Statute.”

Al Hassan argued that only acts committed against identified persons may be taken into account in considering the quantitative criterion of gravity. He also argued, contrary to pre-trial judges’ determination, victim applications cannot constitute evidence of the gravity of the charges; and that the chamber’s calculation of 882 victims was based on anonymous  applications.

However, appeals judges stated that it was unnecessary, especially at confirmation of charges stage, to identify the victims, in particular in the case of the crime of persecution. They added that the number of participating victims provides an indication of the scope of victimhood, and the number of victims is one of the relevant considerations in assessing the gravity.

The appeals judges also ruled, contrary to Al Hassan’s argument, that the fact that contextual elements may be the same for cases arising from the same conflict or attack is not a valid reason to exclude them in the gravity assessment for a given case, particularly considering that the facts underpinning the contextual elements is just one factor to consider in determining the gravity. They said the statute “does not foreclose the possibility of taking the same factors into consideration for different purposes.”

The Al Hassan trial is scheduled to commence on July 14, 2020.

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