Al Hassan: The International Criminal Court’s First Judgment on Gender Persecution (Part 1)

[Rosemary Grey is a Senior Lecturer at Sydney Law School, The University of Sydney.

Valerie Oosterveld is Western Research Chair in International Criminal Justice and Professor at the Faculty of Law, Western University (Canada). While she serves as Special Adviser to the Prosecutor of the International Criminal Court on Crimes Against Humanity, this post was written in her personal capacity, and she was not involved in the Al Hassan case.]

On 26 June 2024, ICC Trial Chamber X delivered its long-awaited judgment in the Al Hassan case, the first case in which a charge of gender-based persecution went to trial. In this post, we explain what the Majority and separate judgments found regarding gender-based persecution, and offer some initial reflections and critique. We begin with the lived experience of women in Mali under jihadists’ rule, before turning to the proceedings in The Hague.

On 6 October 2012, more than one hundred women and one imam gathered in Timbuktu, Mali, to protest against the two jihadist groups that had taken control of the city and surrounds six months before: Ansar Dine (meaning ‘defenders of the faith’) and Al Quada in the Islamic Maghreb (AQIM). Since taking power, these groups had become increasingly forceful in imposing their interpretation of Sharia. They had banned smoking, alcohol, music, extra-marital sex (consensual or otherwise) and all religious practices that deviated from their interpretation of Sharia. They had destroyed Muslim shrines and mausoleums, some centuries old, that offended their hardline religious beliefs. 

In addition, their relentless policing of women’s and girls’ attire, their insistence that women and girls be chaperoned in public spaces by a male relative, their practice of berating and detaining those who breached these rules, and their teachings about the need for women to ‘abide in [their] homes’ had taken a major toll on women’s participation in trade and public life. Although a dress code applied to everyone (beards and short trousers for men; full body and head covering for women), men were almost never punished for breaching it. ‘Life has become more and more difficult with these people,’ one of the protesters told the New York Times. ‘They impose veils on us and now they are hunting us like bandits for not wearing them.’

To enforce their ideology, the jihadists had installed several law enforcement bodies in Timbuktu. There was armed patrol called the Hesbah and a larger Islamic Police force, neither of which included women in their ranks. There was also an Islamic Court, again with no women judges, which could impose both haad and ta’zir penalties. The former included floggings, amputations, and other corporal punishments said by the jihadists to be prescribed by the Qu’ran and Hadith; the latter referred to discretionary punishments for lesser offences, which could be imposed by the Heshah and Islamic Police as well as the Islamic Court. 

In this climate, women and girls had become increasingly vulnerable to sexual violence. Some had also been pressured into relationships with Ansar Dine & AQIM men that these groups referred to as ‘marriages’: a label that, in their worldview, gave ‘husbands’ a license to demand sex and forced domestic labour from their ‘wives’. In addition, the Hesbah had become more violent toward women and girls since September 2012, when a man named Mohammed Moussa became its emir. Under his leadership, women and girls had been detained in squalid conditions for even minor breaches of the dress code, and some had been gang-raped by Moussa and his men in detention.

The protesters were angered by this oppressive treatment and resolved to use what little power they had left to call for change. Unarmed, they marched toward the bank that the Heshab had recently claimed as its headquarters, and where some of the rapes occurred, pausing briefly to take cover from shots fired by the Islamic Police. Some protesters removed their veils – an expression of autonomy for which women could be flogged. (Wearing a veil can of course be an expression of autonomy too, but in this context, women were not permitted to choose for themselves.) Eventually, the protesters were confronted by Mohammad Moussa and Islamic Police commissioner Al Hassan Ag Abdoul Aziz (‘Al Hassan’), who warned that if they held another march without permission, they would be punished. 

The women dispersed, their grievances unanswered. The jihadist occupation continued until January 2013, when Ansar Dine & AQIM left following a military intervention by French, Malian and Chadian forces and the deployment of UN peacekeepers. 

From Timbuktu to The Hague 

In 2019, the same Al Hassan who warned the women against further protest was charged by the (then) ICC Prosecutor Fatou Bensouda for war crimes and crimes against humanity, in one of three known cases concerning Ansar Dine & AQIM’s 2012-2013 operations in northern Mali. The ICC has also issued an arrest warrant against alleged Ansar Dine leader Iyad Ag Ghaly, which is yet to be executed, and has convicted a third Ansar Dine member named Ahmad Al Faqi Al Mahdi of the war crime of intentionally directing attacks against religious and historic buildings after he plead guilty to that offence. Mouhammad Moussa has not been charged: he was executed by Ansar Dine/AQIM in Timbuktu as punishment for killing a civilian (trial judgment, para. 1078).

Making history, the confirmed charges in the Al Hassan case included persecution on gender grounds against women and girls, as well as persecution on religious grounds against the civilian population at large. This was the first time that the crime against humanity of gender-based persecution, an offence whose inclusion in the 1998 Rome Statute was the product of famously difficult negotiations, was sent to trial in the ICC. 

Judgment

After a three-year trial, on 26 June 2024, Trial Chamber X handed down its judgment in the Al Hassan case. Confoundingly, there were more decisions than judges. In addition to their joint judgment, all three judges penned an individual opinion, evincing sharp divisions on the Bench. The result was mixed: a conviction on some charges by Judge Kimberly Prost of Canada and Judge Tomoko Akane of Japan, and a full acquittal by Judge Antoine Kesia-Mbe Mindua of the DRC, who found that although virtually all of the charged crimes had been committed, Al Hassan was not criminally responsible because the defences of duress and mistake of law applied. 

The crimes of sexual violence and forced marriage were excluded from the conviction: a pattern that has been seen many times in international criminal tribunals before. Judges Prost and Mindua were satisfied that these crimes had occurred, and that they fell within Ansar Dine & AQIM’s ‘common purpose’ of ‘impos[ing] and implement[ing] their interpretation of Sharia and to control Timbuktu and its residents for this purpose’. But Mindua’s findings on duress and mistake of law, coupled with Akane’s view that rape and forced marriage were ‘opportunistic’ crimes that exceeded Ansar Dine & AQIM’s common purpose, meant that the defendant was acquitted of these crimes. 

In addition, Al Hassan was acquitted of gender-based persecution. While Prost and Mindua held that persecution on both religious and gender grounds had been committed, Mindua’s findings on duress and mistake of law meant that only Prost found Al Hassan criminally responsible for this crime. Meanwhile, Akane found persecution on religious grounds only, leaving Prost as the sole judge to support a conviction of gender-based persecution. 

A Safe Starting Point?

For many observers, including ourselves, the Al Hassan case seemed a ‘soft entry point’ to prosecute the crime of gender-based persecution for the first time. ‘Gender’, as defined in the Rome Statute, means ‘the two sexes, male and female, within the context of society’. As we have argued elsewhere, persecution on the ground of ‘gender’ (so defined) is a broad concept, which includes targeting based on sexual orientation and gender identity (see Oosterveld; Grey et al). Nonetheless, in terms of a safe starting point, there is little doubt that stripping women and girls of fundamental human rights while subjecting them to torture, sexual violence, and other Rome Statute crimes, is gender-based persecution. 

And yet, as the judgment reveals, the trial judges did not all see it that way. In our next post, we untangle this knot of judgments in more detail, and explain our concerns about the erasure of gender as a ground of persecution in this seemingly clear-cut case.

Photo attribution: “13-12-05-QIP in Timbuktu 23” by UN Mission in Mali is licenced under CC BY-NC-SA 2.0