Sabina Grigore
Just Access Representative to the UNODC
January 2012 saw the onset of the Mali War, plunging the nation into its worst human rights crisis in 50 years. Since the Ministry of Justice referred this matter to the International Criminal Court (ICC) in July 2012, the ongoing query remains: Can Mali see justice restored?
Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud’s (“Al Hassan”) trial judgment on the 26th of June 2024 is one of the small steps taken in this direction.
Al Hassan was arrested and transferred to the ICC in April 2018, facing charges of crimes against humanity and war crimes allegedly committed during the occupation of Timbuktu by radical Islamist groups Ansar Dine and Al-Qaida in the Islamic Maghreb (AQIM) between April 2012 and January 2013.
During this time, these two groups enforced a strict and unique interpretation of Sharia law, meant to help fight those considered infidels and enlighten and instruct the ignorant people of Timbuktu. They imposed strict dress codes and banned TV, music, smoking, and alcohol. To enforce these rules, new institutions were established, including a security battalion called the Hisbah, the Islamic Police, and the Islamic Tribunal. These institutions handled city security, street patrols, rule compliance, arrests, and punishments like detention or public flogging.
Al Hassan was allegedly the de facto chief of the Islamic Police. However, he was perceived differently by different actors during his activity in Timbuktu, having variously been described as . His true status remained a point of contention throughout, and at one point Al Hassan’s defense team even argued he was too minor a figure to warrant trial at the ICC, describing him as “une petite sardine”. They further argued that the alleged crimes were unrepresentative and that the prosecution unfairly targeted the Islamic faith.
During the verdict, it was clarified that Al Hassan climbed the ranks within the Islamic Police, reaching a leading role in a short time. His activity involved, among other things, receiving civilian complaints, investigating crimes, arresting and detaining offenders, performing administrative tasks, and writing and issuing reports, while collaborating with the Islamic Tribunal.
According to the verdict, Al Hassan was declared guilty of several acts constituting war crimes and crimes against humanity. The war crimes included torture, cruel treatment and other inhumane acts, outrages upon personal dignity, mutilation, and pronouncement of convictions without prior judgment in the context of the Islamic Tribunal. While the convicted crimes against humanity were torture and persecution on religious grounds.
Revisiting facts already considered in the Al Mahdi case, he was declared not guilty of the war crime of attacks on protected objects. Still, it appears that the majority of the Trial Chamber agreed that Al Hassan was not just “une petite sardine” in the system created by Ansar Dine and AQIM. However, in a dissenting opinion, the Presiding Judge argued that on grounds of duress and error of law, Al Hassan should have been exonerated of all criminal responsibility.
Still, it appears that the majority of the Trial Chamber agreed that Al Hassan was not just “une petite sardine” in the system created by Ansar Dine and AQIM
Al Hassan’s trial, which began in July 2020 before Trial Chamber X, raised significant legal questions related to the categorisation of the armed conflict in Mali and the role of rebel governance. This trial was considered to have the potential to set a historical precedent from two perspectives.
First, it was the first case in which the court addressed the crime against humanity of gender-based persecution. During the verdict, it was highlighted that women were targeted, detained under harsh conditions, and raped for reasons such as not wearing a veil, not being fully covered, or having sexual intercourse outside of marriage. Additionally, the case addressed the distinct crime of forced marriage, distinguishing it from sexual slavery. This underscored the gender-specific nature of forced marriage and acknowledged the social stigma experienced by the victims.
However, the judgment was marked by deep division between the judges. They diverged significantly on the persecution charge, especially regarding religious and gender grounds, and the only unanimous point of agreement was that there was insufficient evidence for Al Hassan’s involvement in the destruction of mausoleums. The majority of the judges considered his contributions to the allegations related to rape, sexual slavery, or forced marriage insufficient, with one judge asserting the contextual elements of those crimes were not met. The term ‘gender’ was absent in the concluding verdict, causing confusion even among ICC experts. Thereby, the judgment fell short of justice for victims of gender-based crimes, with critics stating that the ICC had abandoned women.
The term 'gender' was absent in the concluding verdict, causing confusion even among ICC experts. Thereby, the judgment fell short of justice for victims of gender-based crimes, with critics stating that the ICC had abandoned women.
Second, this case is the first to use an immersive virtual environment (IVE). Using a combination of satellite imagery, drone footage, and evidentiary videos, this platform allowed a virtual reconstruction of the city of Timbuktu. The IVE was used during the court proceedings to present instances of violence and showcase locations where other alleged crimes occurred. However, the judgment only mentions that video footage, as well as photographs, were used during the trial, without further exploring the use of the IVE during the Court proceedings, or directly mentioning the IVE in the judgment. However, according to SITU Research, the developers of the IVE, the fact that the Court was open to using an advanced digital platform during a trial sets “a precedent for integrating new technologies and digital evidence in the courtroom”.
Despite significant achievements, such as recognising persecution on religious grounds as a crime against humanity and utilising the IVE during the trial, the substantial disagreements between the judges leave the possibility of an appeal open. This appeal can be filed within thirty days after the judgment, indicating that the final resolution of this case is still uncertain.
The Al Hassan trial judgment underscores the ongoing struggle in Mali’s journey towards justice, leaving a profound sense of uncertainty and concern. Even though the Court managed to ensure a conviction for the Defendant, its inability to address widespread gender-based violence casts a shadow on its effectiveness in delivering meaningful outcomes for victims, both in Mali and beyond.
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