ICC Trial Chamber X, by majority, convicted Malian Islamist militant and convicted war criminal

The FINANCIAL —  Trial Chamber X of the International Criminal Court (ICC or “Court”), by  majority, convicted Mr Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud of some of the charges brought against him of war crimes and crimes against humanity committed between 2 April 2012 and 29 January 2013 in Timbuktu, northern Mali, controlled at that time by the armed groups Ansar Dine and Al-Qaida in Islamic Maghreb (AQIM).

The Chamber was composed of Judge Antoine Kesia-Mbe Mindua (Presiding Judge), Judge Tomoko Akane and Judge Kimberly Prost.

The Presiding Judge read out a summary of the judgment in court, stating, inter alia, that “although Al Hassan was working for a group that claimed to be applying Islamic Sharia, this trial was not about Sharia, or the Muslim religion in general”. The trial concerned the acts and conduct of a man, Mr Al Hassan, acting in a specific context. The Bench examined the evidence to ascertain whether Mr Al Hassan’s responsibility was established beyond reasonable doubt.

The Chamber noted that, after being recruited by senior leaders of AQIM, Mr Al Hassan became a senior member of the Islamic Police, where he took on a leadership role that included organizing police work. The Islamic Police played a pivotal role in the system Ansar Dine/AQIM put in place to commit the crimes. He also participated in the work of the Islamic Court as a member of the Islamic Police, inter alia by writing and signing police reports, taking part in the transfer of accused persons to the Islamic Court and implementing the judgments and sentences handed down by it. He remained a member of the Islamic Police until Ansar Dine/AQIM left Timbuktu. Hence, Mr Al Hassan contributed to the system put in place by Ansar Dine/AQIM.

Mr Al Hassan was convicted, by majority, of directly committing the crimes himself, contributing to them with others or aiding and abetting the commission of the crimes by others, in relation to:

1. i) the crimes against humanity of torture; and
2. ii) the war crimes of torture and outrages upon personal dignity;

and of contributing to the crimes perpetrated by other members of Ansar Dine/AQIM, in relation to:

1. i) the war crimes of mutilation, cruel treatment and passing sentences without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable; and
2. ii) the crimes against humanity of persecution and other inhumane acts.

The Chamber found that certain crimes of sexual violence had taken place in Timbuktu during the material time. However, Mr Al Hassan was not found to bear responsibility for those crimes and was consequently acquitted of the following charges:

1. i) the war crimes of rape and sexual slavery;
2. ii) the crimes against humanity of rape, sexual slavery and other inhumane acts in the form of forced marriage.

Mr Al Hassan was also acquitted of the war crime of attacking protected objects.

The three judges each appended to the decision a separate, partially dissenting opinion. Judge Kesia-Mbe Mindua appended a dissenting opinion concerning, in particular, the existence of a ground for excluding Mr Al Hassan’s criminal responsibility.