{"id":135456,"date":"2024-09-05T10:47:22","date_gmt":"2024-09-05T08:47:22","guid":{"rendered":"https:\/\/www.justiceinfo.net\/?p=135456"},"modified":"2024-09-05T10:47:24","modified_gmt":"2024-09-05T08:47:24","slug":"sentencing-al-hassan-and-his-judges","status":"publish","type":"post","link":"https:\/\/www.justiceinfo.net\/en\/135456-sentencing-al-hassan-and-his-judges.html","title":{"rendered":"Sentencing\u00a0Al Hassan, and his judges"},"content":{"rendered":"\n

The controversial and confusing judgement convicting the former head of Timbuktu\u2019s Islamic police Al Hassan was at the heart of the debates over sentencing before the International Criminal Court on September 4. Whatever the sentence, the ICC verdict is bound to be an intense playground for lawyers and academics.<\/strong><\/p>\n\n\n\n\n\n\n\n

At the September 4 hearing on the sentencing of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, the prosecution called for at least 22 years in prison. Al Hassan was found guilty at the International Criminal Court (ICC)<\/a> in June this year of 8 counts of war crimes and crimes against humanity and acquitted of six counts, for his role as head of the Islamic police in the occupation of the northern Malian city of Timbuktu in 2012-2013\u00a0by Ansar Dine, a local franchise of Al-Qaida in the Islamic Maghreb (AQIM).<\/p>\n\n\n\n

The victims\u2019 representatives stressed how shocked and disappointed their clients were by the acquittal of Al Hassan on several charges. The defence spent time showing the ambiguities in a trial judgement that included multiple dissenting and overlapping opinions<\/a> as part of a much-delayed judgment from a panel of three judges which has since been re-constituted to replace the presiding judge. <\/p>\n\n\n\n

The case concerns new issues for the ICC<\/a> that have never previously been dealt with in an international court. Already, it is clear that the Appeals Chamber will have a very tangled ball to unknot when facing the multiple appeals planned from all parties.\u00a0<\/p>\n\n\n\n

Timbuktu had been taken over by Islamic extremists in a short-lived mini-caliphate. A strict form of Sharia law was imposed, with harsh punishment for drinking, for women wearing the wrong clothes, men for rape. The enforcers were the morality brigade (the Hisbah) and the Islamic Police. The deputy prosecutor Mame Mandiaye Niang was eager to tell the court though that \u201cthis is not a trial against Islam\u201d, instead it was the population of Timbuktu who were mainly Muslims who were the victims in this case.  <\/p>\n\n\n\n

Does International humanitarian law apply?<\/h2>\n\n\n\n

Al Hassan was in court, behind his defence team, in a traditional snowy white flowing robe wrapped around his face, and with a gold-coloured watch. The pictures painted by the prosecution and defence of Al Hassan the man, his actions and his motivations were completely at odds. Al Hassan played a \u201cpivotal\u201d role, said prosecutor Gilles Dutertre. \u201cHe was full of personal ambition.\u201d He was not a soldier nor a politician, Al Hassan\u2019s defence counsel Melinda Taylor told the court. His behaviour was shaped and constrained by the context: he stayed under Islamic occupation in Timbuktu. He made efforts to do good. \u201cHe used his position to help the local population.\u201d<\/p>\n\n\n\n

This is \u201creally the first time,\u201d says Katerine Fortin, an international humanitarian law specialist at Utrecht University, The Netherlands, that any international criminal tribunal has been asked to study \u201cin such a magnitude of charges, the phenomenon of rebel governance,\u201d which is a growing international issue. Last year the International Committee of the Red Cross found that \u201c195 million civilians are currently living under the control of armed groups.\u201d How far does international humanitarian law apply in these contexts? Fortin notes that \u201cit's sometimes been said that the best defence against an allegation of a violation of international humanitarian law is to argue that it doesn't apply.\u201d <\/p>\n\n\n\n

ICC judges don\u2019t help<\/h2>\n\n\n\n

\u201cWhat's controversial here,\u201d she continues, \u201cis that the whole chamber has taken a very broad-brush approach\u201d to assessing how intense the conflicts were - and therefore whether international law applies, \u201cwithout really explaining the legal basis on which it's doing it.\u201d <\/p>\n\n\n\n

\u201cMany modern conflicts are very fragmented with multiple fighting parties. Most people are saying the law should change,\u201d acknowledges Fortin. But this trial chamber doesn't show how it has come to its conclusions, she says, despite almost 1000 pages of judgement and attached opinions. \u201cIt hasn\u2019t done it in a particularly careful way.\u201d<\/p>\n\n\n\n

Academics will be pouring over that judgment for many years to come because it deals with so many big issues that the ICC has not dealt with before. Under the occupation how did the Islamic police and the Islamic tribunal operate? Did they pass sentences like a regularly constituted court? Or did they unlawfully detain people, and is that a crime in a non-international armed conflict? \u201cThis case is particularly fascinating. Because the court has had to answer all of these questions, that are very difficult,\u201d says Fortin.<\/p>\n\n\n\n

The controversial statement by Al Hassan in prison<\/h2>\n\n\n\n

Some of the key areas on which the prosecution and the defence were completely divided were not actually part of the allegations against Al Hassan, because they stemmed from the time he spent in the custody of the Malian security services before an arrest warrant was issued against him by The Hague. He is a \u201ctorture survivor,\u201d said his lawyer Taylor. While prosecutor Dutertre said the judges should leave his alleged PTSD aside, because there is no connection to his ICC case.<\/p>\n\n\n\n

Al Hassan\u2019s statement to the ICC while in prison is \u201cheavily relied upon in the judgement,\u201d points out Fortin. But \u201cthe allegation that Al Hassan was tortured while in the Malian custody and that during this time the ICC prosecution was visiting him in prison are given very short shrift,\u201d she notes.<\/p>\n\n\n\n

Only one clarifying question came from the bench. Presiding judge Kimberly Prost asked about Dutertre\u2019s line that \u201dwe see no trace of cooperation\u201d by the accused and that Al Hassan \u201csystematically stood against the proceedings.\u201d Didn\u2019t he give a lengthy statement to the ICC while in the Malian prison? asked Prost. You should give that interview \u201clittle weight,\u201d responded Dutertre because there was no further cooperation. Taylor, however, highlighted that at that point Al Hassan had no arrest warrant against him. So it was an example of pure cooperation because \u201cthere was no quid pro quo\u201d for speaking to the ICC. Her client \u201ccannot be penalised for using statutory rights\u201d later by clamming up once there was an arrest warrant.  <\/p>\n\n\n\n

Both parties returned to the question of how important a role Al Hassan played. The prosecutor again pointed to the video evidence of the man with the whip, administering more than 60 lashes in public (there is some dispute between prosecution and defence here but it is in the judgment): \u201cHe is not simply following orders. He is in a leading role.\u201d Or was he as the defence had portrayed him? \u201cUne petite sardine\u201d \u2013 or \u2018small fish\u2019 \u2013 who as \u201ca translator was helping translate things because he was actually a local from the town. He wasn't part of this. He wasn't originally part of these armed groups who were not local from the town,\u201d Fortin explains. \u201cThe defence has always argued that his connection to these crimes was quite tangential.\u201d<\/p>\n\n\n\n

The controversial judgement on gender persecution<\/h2>\n\n\n\n

Of huge concern according to the legal representatives of the victims was the way that gender persecution had fallen out of the proven charges. There was \u201camazement\u201d at the judgement, said Fidel Nsita Luvengika, one of the victims\u2019 common legal representatives. Having put their trust in the court and in the process the victims saw in the judges\u2019 decision an acquittal on some of the most traumatic crimes on which people had testified.<\/p>\n\n\n\n

Gender persecution is very likely to be a subject of appeal, says Fortin. \u201cThese [armed] groups were establishing rules that had a very far-reaching effect on daily life in Timbuktu,\u201d she notes. \u201cIt's an uncontested, extremely serious impact on women, both in terms of what women could wear, their sexual relations, their marriage and their participation in public life.\u201d And \u201cyou end up with this strange situation,\u201d she notes, where persecution, as a crime on religious grounds, is agreed to by all judges, but gender persecution doesn't have the majority, for different reasons.<\/p>\n\n\n\n

\u201cThere will almost certainly be an appeal,\u201d agrees Kyra Wygard of the Leuven Centre for Public Law, who focuses on judges and their practise at international criminal tribunals. \u201cWhile it is not uncommon for judges to issue separate or dissenting opinions \u2014 both at the ICC and other international courts like the International Court of Justice<\/a> \u2014 the opinions in the\u00a0Al Hassan judgment appear to highlight significant challenges within the bench. Notably, all three judges issued \u2018partially concurring, partially dissenting\u2019 opinions, revealing disagreements on most counts.\u201d Also, Wygard says, this judgment is \u201cunprecedented\u201d in that it specifies which judges voted in favour or dissented on specific counts. \u201cI think a first in ICC history.\u201d<\/p>\n\n\n\n

Additionally, she says, \u201cthe fact that all three opinions are labelled 'partially concurring, partially dissenting' is itself noteworthy. Typically, in a Trial Chamber judgment, one would expect either a separate\/concurring or a dissenting opinion, not a hybrid of both. While this is procedurally not unallowed, these factors \u2014 coupled with a delay of nearly six months and multiple changes in the bench's composition since June \u2014 indicate significant difficulties within this bench, also on a procedural level which will likely result in an appeal.\u201d<\/p>\n\n\n\n

Overshooting the mark on sentencing<\/h2>\n\n\n\n

The prosecution picked out each of the counts of the judgement, arguing for 20 years for persecution, 20 years for torture and overall, a minimum of 22 years. The defence argued for \u201ca reduced sentence, proportionate to his circumstances\u201d. Taylor ran through all the ICC prosecution sentence requests over the years, showing that \u201cthey have a history of considerable overshooting the mark\u201d in asking for many more years that judges feel appropriate.<\/p>\n\n\n\n

The victims' representatives did not relay specific requests for a number of years in prison, except for one comment from a victim that \u201che deserved life in prison\u201d. They were reflecting instead the \u201castonishment\u201d and \u201canger\u201d and \u201cincredulous feeling of incomprehension,\u201d especially from women, that the charges connected to gender had not been proven. The victims pointed out that \u201cthe consequences have not stopped with the generation who lived through these events.\u201d<\/p>\n\n\n

\r\n\t\t\t\t\t\r\n\t\t\t
Recommended reading<\/div>\r\n\t\t\t
\"Al-Hassan<\/div><\/a>\r\n\t\t\t\r\n\t\t\tIs the ICC Al Hassan judgement a mess or the future?\r\n\t\t<\/a>\r\n\t\t\r\n\t\t\t\t<\/div>\n","protected":false},"excerpt":{"rendered":"

The controversial and confusing judgement convicting the former head of Timbuktu\u2019s Islamic police Al Hassan was at the heart of the debates over sentencing before the International Criminal Court on September 4. Whatever the sentence, the ICC verdict is bound to be an intense playground for lawyers and academics.<\/p>\n","protected":false},"author":79,"featured_media":135450,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[562],"tags":[4171,2653,2772,2683],"ji_location":[2339],"class_list":["post-135456","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-icc","tag-al-hassan-en","tag-crime-against-humanity","tag-judgment","tag-war-crime","ji_location-mali"],"acf":[],"yoast_head":"\nICC: Sentencing\u00a0Al Hassan, and his judges<\/title>\n<meta name=\"description\" content=\"At the International Criminal Court (ICC) on September 4, the controversial and confusing judgement of Al Hassan, former head of Timbuktu\u2019s Islamic police, Mali, was at the heart of the debates over sentencing. 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