The Role of Gender Persecution in the Al Hassan Judgment

Note: although I serve as Special Adviser to the ICC Prosecutor on War Crimes, I was not involved in the Al Hassan case.

The Trial Chamber released its 822-page (!) judgment in the Al Hassan case yesterday. Al Hassan was convicted of a number of serious crimes, including the crime against humanity of torture and the war crimes of torture and outrages upon personal dignity. He was also convicted of contributing to the crimes against humanity of persecution and other inhumane acts, as well as to various other war crimes, such as mutilation. Al Hassan was acquitted, however, of the crimes against humanity of sexual slavery, rape and other inhumane acts in the form of forced marriage, as well as of the war crimes of sexual slavery and rape.

In the wake of the judgment, there has been much confusion — including by me — about whether Al Hassan was convicted of the crime against humanity of persecution on the basis of gender. The OTP’s charges in that regard were groundbreaking — the first time it has ever brought such charges. (See this post by Valerie Oosterveld, written before she was appointed Special Adviser on Crimes Against Humanity.)

The short answer is no, he was not. Here is the relevant language in para. 1785 (emphasis mine):

THE CHAMBER FINDS Mr Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud… Under Count 13 of the charges, by Majority, Judge Mindua dissenting, GUILTY of the crime against humanity of persecution, on religious grounds, under Article 7(1)(h) of the Statute for contributing to the commission of the crime under Article 25(3)(d) of the Statute.

The subparagraph makes clear that Al Hassan was convicted of the crime against humanity of persecution only on the basis of religion. That is obviously disappointing, but it’s important to understand why Al Hassan was not also convicted of gender persecution, because a careful reading of the judgment makes clear that a majority of the Trial Chamber found both (1) that members of Ansar Dine/AQIM committed the crime against humanity of persecution on the basis of gender and (2) that Al Hassan was criminally responsible for that crime because he knowingly contributed to it. Unfortunately, because one of the two judges in that majority concluded that duress excluded Al Hassan’s criminal responsibility, he could only be convicted of religious persecution.

Ansar Dine/AQIM

The judgment begins the analysis of the crime against humanity of persecution by focusing on persecution based on religion. Here, all three judges agreed that members of Ansar Dine/AQIM committed such persecution (emphasis mine):

1565. Considering the above, the Chamber finds that Ansar Dine/AQIM members targeted the population of Timbuktu as a whole on religious grounds, motivated by their perception of all of its members being ‘ignorant’ and not ‘real Muslims’. In their view, this population lacked the ‘correct’ form of religious belief for not subscribing to Ansar Dine/AQIM’s vision and interpretation of Sharia and failing to behave in ways prescribed by that belief. The Chamber notes in this regard, contrary to the Defence arguments, that religious persecution may be based on a perceived lack of a religion, religious affiliation, as well as targeting of persons for their failure to adhere to religious beliefs or precept

The judgment then addresses gender persecution in the next paragraph. A majority of the judges — Judge Prost and Judge Mindua — concluded that members of Ansar Dine/AQIM also perpetrated persecution on the basis of gender; Judge Akane disagreed (emphasis mine):

1566. The Majority, Judge Akane dissenting, considers that, in addition, Ansar Dine/AQIM members specifically targeted local women and girls by reason of their gender, depriving them of some of their fundamental rights because of the particular roles, expectations and conduct Ansar Dine/AQIM assigned to their gender.

1572. The Majority notes that women and girls were also specifically targeted by reason of their gender in the context of the forced marriages, in the course of which women suffered, such as being treated as objects, subjected to rapes or other forms of sexual violence and to significant restrictions to their freedoms, and following which many experienced significant ostracisation and stigmatisation from their community.The Majority considers that this also resulted from the specific roles and expectations assigned to women by Ansar Dine/AQIM, as outlined above. Ansar Dine/AQIM members also expected their ‘wives’ to stay at home and saw ‘marriages’ with local women as a means for Ansar Dine/AQIM members to have sexual intercourse in a ‘permissible’ manner, during which women had no right to refuse to have sexual relations with their ‘husband’.Considering the above, the Majority finds that female members of the population were subjected to a number of persecutory acts by Ansar Dine/AQIM by reason of their gender.

1574. Considering the above, the Chamber, Judge Akane dissenting in part, is satisfied that the perpetrators targeted the population of Timbuktu on religious and gender grounds. The Chamber further finds that the perpetrators, who were all members of Ansar Dine/AQIM, committed the underlying acts of persecution deliberately, with the awareness that members of the targeted group would – as a result – be deprived of one or more of their fundamental rights, and, as demonstrated above, by reason of their perception of the group as ‘bad Muslims’, who in their view lacked the ‘correct’ form of religious belief. Certain persecutory acts were, additionally and as discussed above, gender-based and, in these cases, the Majority is satisfied that the perpetrators also meant to target women and girls as such. In its view, and contrary to the Defence arguments, the Chamber, Judge Akane dissenting in part, considers it established that all underlying acts were part of Ansar Dine/AQIM’s discriminatory campaign and that its members knew that and intended for their respective acts and conduct to contribute to the organisation’s project to impose its vision and interpretation of Sharia on the local population of Timbuktu, particularly on women and girls.

Al Hassan

The judgment later discusses whether Al Hassan himself is criminally responsible for the crime against humanity of persecution on the basis of religion and/or gender. Here the judges were more fractured, so it is important to carefully analyse which judges were in “the Majority” on that question. First, the judges define the members of the “the Majority” for the crime against humanity of persecution (emphasis mine):

1727. The Majority, Judge Akane dissenting, addresses the following considerations underpinning its understanding of Mr Al Hassan’s culpability for the crime of persecution.

For purposes of persecution, therefore, “the Majority” refers to Judge Prost and Judge Mindua. The majority then recalls what the judgment said about whether members of Ansar Dine/AQIM committed the crime against humanity of persecution (emphasis mine)

1728. The Majority recalls its finding that members of Ansar Dine/AQIM committed the crime against humanity of persecution under Count This crime also formed part of Ansar Dine/AQIM’s common purpose, which was to impose and implement their interpretation of Sharia in Timbuktu. In doing so, members of the groups, including Mr Al Hassan, imposed and promoted a set of rules and prohibitions and set up and enforced a system of repression which regulated the way of living and religious practices of the people of Timbuktu, performing daily numerous acts which severely deprived civilians of certain fundamental rights and targeted them on religious as well as gender grounds.

Para. 1728 is actually a bit misleading. “Majority” here refers only to the finding that members of Ansar Dine/AQIM perpetrated persecution on the basis of both religious and  gender grounds. As para. 1565 makes clear, all three judges — “the Chamber” — agreed that religious persecution was perpetrated by the members of those groups.

In terms of Al Hassan’s individual criminal responsibility, the judgment focuses not on perpetration under Art. 25(3)(a) of the Rome Statute but on contributing to a group crime under Art. 25(3)(d). “The Majority” concludes that Al Hassan contributed to persecution on both religious and gender grounds (actus reus) with the necessary knowledge of that persecution (mens rea):

1734. Considering the foregoing, and having had regard to the types of fundamental rights which were infringed, the Majority finds that by virtue of his key role in the Islamic Police and his involvement in Ansar Dine/AQIM’s imposition and promotion of the rules and measures and in the system of surveillance and punishment, including in multiple instances of violent and public punishments, Mr Al Hassan meaningfully contributed to Ansar Dine/AQIM’s campaign targeting the civilian population on religious and gender grounds. As such, the Majority is satisfied that Mr Al Hassan’s conduct contributed to the commission of the crime of persecution by members of Ansar Dine/AQIM in Timbuktu in 2012-2013.

1735. Regarding the mental elements, as noted above, the Majority recalls that after senior leaders of AQIM, notably Abdallah Al Chinguetti, spoke to Mr Al Hassan about the doctrine of jihad and of the need for jihad, Mr Al Hassan was convinced to work with them.The Majority also recalls that Mr Al Hassan bragged to P0150 about his enforcement of Ansar Dine/AQIM’s version of Sharia, agreed with Ansar Dine/AQIM that behaviour opposed to their ideology should be repressed and shared Ansar Dine/AQIM’s policy of implementing their repressive rules.5227 Mr Al Hassan also acknowledged after the charged events that public punishments amounted to a ‘humiliation’ of the dignity of the person being punished.5228 Given his voluntary joining of Ansar Dine, and recalling its above discussions about Mr Al Hassan’s important role in the Islamic Police, the Majority finds that Mr Al Hassan meant to engage in the conduct that constitutes his contribution to the crime under Count 13.5229 For these same reasons, and particularly given his knowledge of the discriminatory rules and prohibitions enforced by Ansar Dine/AQIM, the Majority finds that Mr Al Hassan was aware of Ansar Dine/AQIM’s intention to commit persecutory acts on religious and gender grounds.

“The Chamber” thus concludes in the following paragraph that Al Hassan is individually criminally responsible for persecution as a crime against humanity:

1736. Considering the foregoing, the Chamber finds Mr Al Hassan criminally responsible pursuant to Article 25(3)(d) of the Statute for persecution as a crime against humanity, under Article 7(1)(h) of the Statute (Count 13), as of early May 2012.

Note the difference between the final sentence of para. 1735 and the first sentence of para. 1736. The former says “the Majority finds that Mr Al Hassan was aware of Ansar Dine/AQIM’s intention to commit persecutory acts on religious and gender grounds.” The latter says “the Chamber finds Mr Al Hassan criminally responsible pursuant to Article 25(3)(d) of the Statute for persecution as a crime against humanity.” Why the difference?

Here is what is going on. All three judges agree that Al Hassan is criminally responsible for persecution on the basis of religion, because Judge Akane did not dissent from that finding and “the Majority” otherwise refers to Judge Prost and Judge Mindua. Hence para. 1736 refers to “the Chamber.” But only Judge Prost and Judge Mindua found that Al Hassan is criminally responsible for persecution on the basis of gender. Hence para. 1735 refers to “the Majority.”

Duress

But that raises another question: if “the Chamber” found that Al Hassan is criminally responsible for religious persecution and “the Majority” found that Al Hassan is criminally responsible for gender persecution, why is Al Hassan only convicted of the crime against humanity of persecution on religious grounds? There appears to be at least a majority (two votes) to convict him of both religious persecution and gender persecution.

Here is the answer: although Judge Mindua agrees with Judge Prost and Judge Akane that Al Hassan is criminally responsible for persecution on the basis of religion and agrees with Judge Prost that Al Hassan is criminally responsible for persecution on the basis of gender, he believes there is a ground for excluding Al Hassan’s criminal responsibility on all of the counts — namely duress:

5232. For reasons mentioned in his separate and dissenting opinion, Judge Mindua would have acquitted Mr Al Hassan of all crimes found above on the basis of duress and of some crimes additionally on the basis of mistake of law.

Because Judge Mindua concluded that Al Hassan committed all of his criminal acts under duress — mistake goes only to the charges based on flogging — he refused to convict him of any of the charges. So we need to subtract Judge Mindua from our count of guilty votes. And that means there is a majority for convicting Al Hassan of the crime against humanity of persecution on the basis of religion (Judge Prost and Judge Akane) but only one judge willing to convict him of the crime against humanity of persecution on the basis of gender (Judge Prost). Hence the Chamber’s finding in para. 1785 that Al Hassan is “[u]nder Count 13 of the charges, by Majority, Judge Mindua dissenting, GUILTY of the crime against humanity of persecution, on religious grounds, under Article 7(1)(h) of the Statute for contributing to the commission of the crime under Article 25(3)(d) of the Statute.”

Conclusion

It is disappointing that Al Hassan was not convicted of the crime against humanity of persecution on the basis of gender, but there is still much in the judgment to console the OTP. A majority of judges concluded both that members of Ansar Dine/AQIM perpetrated the crime and that the defendant, Al Hassan, was criminally responsible for that crime because he knowingly contributed to it. Al Hassan escaped conviction for gender persecution only because one of those judges concluded that he acted under duress. Moreover — and very importantly here — duress is an excuse, not a failure of proof defence or a justification. So although Al Hassan could not be convicted of the crime against humanity of persecution on the basis of gender, the judgment says that the crime was committed and that Al Hassan contributed to the crime in a manner that would have justified his conviction if he had he not acted under duress. (An appealable issue.) That is a win for the OTP, even if Al Hassan’s eventual sentence does not take into account his role in contributing to Ansar Dine/AQIM’s gender persecution.

Photo Credit: ICC-CPI.