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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.

Source of original article: International Justice Monitor (www.ijmonitor.org).
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