The Perennial Question of the Scope of ‘Attack’ in Conduct of Hostilities War Crimes: The Al Hassan Trial Chamber’s Failure to Answer

[Mischa Gureghian Hall is a W.M. Keck Research Fellow at the University of California, Los Angeles]

After a considerable delay, Trial Chamber X of the International Criminal Court (ICC) delivered its much-anticipated trial judgment in the Al Hassan case. While preliminary engagement with the judgment (including on this blog) has surrounded the Chamber’s unclear approach to gender-based persecution, it can be easy to overlook that the case initially appeared poised to clarify another issue that has long vexed the ICC—the meaning of ‘attack’ in the context of conduct of hostilities war crimes. Questions as to the scope of the term have persistently avoided resolution throughout the Court’s jurisprudence, and following the Appeals Chamber’s splintered Ntaganda judgment in 2021, it appeared the Al Hassan Trial Chamber was poised to finally address the issue head-on. However, due to the insufficiency of the evidence linking the accused to the destruction of mosques and mausoleums in Timbuktu Mail, acts for which he stood charged with the war crime of attacking protected property, the Trial Chamber acquitted Al Hassan of the offense but without offering any legal characterization of the acts themselves. 

The Trial Chamber’s failure to legally classify acts of violence against cultural property is not only inconsistent with both its own and other Trial Chamber’s approach to factual and legal determinations but also deprives victims of the expressive justice of a judicial determination that international crimes have occurred—independent of the personal responsibility of a given accused. Through a flawed judicial approach, the Al Hassan case regrettably leaves the core doctrinal question of the scope of ‘attacks’ under the Rome Statute and international humanitarian law (IHL) not simply unanswered but entirely unaddressed.  

Earlier Trial and Pre-Trial Chamber Jurisprudence

In some of its earliest case law, the Court interpreted the term, as used in conduct of hostilities war crimes under Article 8 of the Rome Statute, to share the same meaning as ‘attack’ under Article 49(1) of Additional Protocol I (AP I) to the Geneva Conventions, which consists of “acts of violence against the adversary, whether in offence or in defence” (see Katanga Trial Judgment, para. 798; Abu Garda Confirmation Decision, para. 65). The ICRC Commentary equates the term to “combat actions” (para. 1880), a definition accepted uncritically in this early case law. The Al Mahdi case represented a turning point in the Court’s jurisprudence, with Trial Chamber VIII reaching the controversial (see, e.g., O’Keefe p. 45; Schabas, pp. 77–93; Drumbl, p. 88) conclusion that ‘attack’ held a different meaning in the context of the attacks on protected cultural property than other conduct of hostilities war crimes, able to include, for the purpose of this war crime, acts occurring after the cessation of combat operations once control over territory has already been consolidated (para. 15). The Al Hassan Pre-Trial Chamber accepted this same interpretation with little discussion (para. 522). 

The Ntaganda Pre-Trial Chamber, on the other hand, endorsed a more restricted view, opining that ‘attack’ does not encompas violence that is geographically and/or temporally distant from active combat (para. 47). It, nevertheless, confirmed the relevant charge (para. 48). The Ntaganda Trial Chamber was more critical, not only rejecting a broad geographic and temporal scope for ‘attack’ under IHL and Article 8 of the Rome Statute but also acquitting the accused on two counts in relation to this finding. With respect to the war crime of directing attacks against civilians under Article 8(2)(e)(i), the Chamber found that certain acts of killing in the Sangi village “occurred after the civilians had already fallen into the hands of the” the militia group and “can therefore not qualify as an attack” (para. 920). 

The Ntaganda Appeals Chamber’s Gridlock 

The Prosecutor appealed the Trial Chamber’s acquittal of Ntaganda on the charge of attacking protected objects as a war crime, arguing that the Chamber had applied an overly narrow definition of the term ‘attack’ by excluding acts occurring after active combat but when an armed group was still consolidating its control over an area. The Appeals Chamber rejected the Prosecutor’s appeal. It affirmed the accused’s acquittal on this charge (para. 1163), but on the basis of a plurality by which two judges agreed with the Trial Chamber’s narrow interpretation of ‘attack’ (Judges Morrison and Hofmański, paras 43–44) and two judges—while disagreeing with the Trial Chamber and advocating a broader scope for the term—finding that the acts in question fall under the lex specialis war crime of pillaging, which the accused had already been acquitted of (Judge Eboe-Osuji, paras 133–36; Judge Bossa, paras 12–15).

Judges Morrison and Hofmański affirmed the Trial Chamber’s approach, arguing that “the term ‘attack’ means ‘combat action’, or, if used as a verb, ‘to set upon with hostile action’” (para. 43), and thus voting to affirm the conclusion and reasoning of the Trial Chamber. Judge Eboe-Osuji, on the other hand, advanced a broad interpretation of ‘attack’ encompassing “rear-guard actions … taken to secure or consolidate the capture” an area after combat operations have ceased (para. 131). Similarly, Judge Bossa subscribed to an expansive definition, but by arguing that there is no basis to temporally distinguish combat actions and subsequent rear guard operations, which she viewed as forming “part and parcel of the [same] attack” (para. 9). Judge Ibáñez Carranza, dissenting, also rebuffed the Trial Chamber’s narrow definition of ‘attack,’ which she considered “includes the preparation, the carrying out of combat action and the immediate  aftermath thereof” (Judgment, para. 1168). Unlike the other judges, she believed that the events did fit the charged crime and were not a more appropriate lex specialis offense. But while Judges Eboe-Osuji, Bossa, and Ibáñez Carranza all agreed that an overly narrow temporal and geographic scope of ‘attack’ was inappropriate, their respective reasonings reveal their significant disagreements and the persisting ambiguity surrounding the scope of the term. 

No member of the Appeals Chamber, however, endorsed the position of the Al Mahdi Trial Chamber and the Al Hassan Pre-Trial Chamber (also argued by the Prosector) that ‘attack’ bears a different, more expansive, definition in the context of attacks on cultural property than it does in other conduct of hostilities war crimes. Judges Morrison and Hofmański explicitly opined that terms in the Rome Statute should be afforded consistent meaning absent indication to the contrary (para. 8). The other three judges all advanced views on the scope of ‘attack’ that applied throughout conduct of hostilities offenses and implied a consistent meaning throughout Article 8. The notion that a broad definition of ‘attack’ applies only in the context of cultural property must thus be considered to have been rejected by the Ntaganda Appeals Chamber.

The (Non-)Answer of the Al Hassan Trial Chamber 

In Al Hassan, the Prosecutor alleged that the accused, an administrator in Ansar Dine-controlled Timbuktu, contributed to the destruction of ten cultural sites in Mali enjoying inscription as UNESCO World Heritage Sites and is thus responsible for the war crime of directing attacks against protected property under Article 8(2)(e)(iv) of the Rome Statute (Judgment, paras 1038–44). In considering the facts of these acts, the Trial Chamber, after recalling relevant evidence, found that “there is insufficient evidence to establish that Mr Al Hassan took any particular action or had a specific role in relation to the demolition of the mausoleums,” and, on this basis, and considered it “unnecessary to undertake any legal characterisation of the charged crime … or the related criminal responsibility of Mr Al Hassan” (para. 1055). 

While the Trial Chamber did not itself address the issue in light of its factual findings, this did not preclude one of its members, Judge Akane, from opining on the matter in a lengthy footnote within her separate opinion, which reads in part (para. 100, fn. 178): 

In any event, I recall that Article 8(2)(e)(iv) of the Statute requires that there be an the ‘attack’ which is, in the context of Article 8, defined as ‘acts of violence against the adversary, whether in offence or defence’ (see Katanga Trial Judgment, para. 798). As noted elsewhere by Judge Morrison and Judge Hofmański, I consider that such an interpretation is in line with both the established framework of international law and the travaux préparatoires … The destruction of the mausoleums in the present case was not carried out during the conduct of hostilities. 

Though not providing any further analysis of reasoning, save for her suggestion of concurrence with the views of Judges Morrison and Hofmański, Judge Akane’s position makes clear that, despite the Ntaganda Appeals Chamber’s 3–2 majority supporting a broad definition of ‘attack,’ the matter is far from settled in the ICC’s jurisprudence. Neither Judge Mindua nor Judge Prost, the other two members of Trial Chamber X, commented on the issue in their respective separate opinions. Despite the silence of the other judges, Judge Akane’s footnote highlights a more fundamental methodological flaw in the Trial Chamber’s approach—its failure to establish the facts and their legal characterization independent of the accused’s responsibility for them. 

While the Chamber appears content to acquit Al Hassan on the charge of attacking protected property due to a lack of evidence that he actively supported the destruction of religious sites in Timbuktu, it does not endeavour to characterize those very acts. This cannot constitute implicit adoption of the legal characterization of the same acts in Al Mahdi in light of Judge Akane’s disagreement with Trial Chamber VIII’s broad approach, meaning that her dissent from such an implicit characterization would have had to have been noted.

Legal Characterization of Facts: Al Hassan’s Inconsistencies

The Al Hassan Trial Chamber erroneously presented its conclusion regarding the accused’s insufficient role in the destruction of cultural sites as a factual determination rather than a legal one as to the individual criminal responsibility of the accused. In their standard organizational form, ICC trial judgments (i) begin with the establishment of the relevant facts, (ii) proceed to the legal characterization of those facts with reference to the respective elements of the alleged crimes, then finally (iii) assess the individual criminal responsibility of the accused under the alleged modes of liability (see, e.g., Katanga; Bemba; Al Mahdi; Ntaganda). The first two legs of analysis are not intended to analyse the accused’s participation in the alleged acts and crimes but rather if and how, on the basis of the evidence, these acts meet the elements of the charged crimes. 

The Al Hassan Trial Chamber also generally followed this formula with regard to the charges of which it acquitted the accused. For instance, in connection to the charged crime against humanity of other inhumane acts in the form of forced marriages under Article 7(1)(k) of the Rome Statute, the Chamber made factual findings regarding four women who were forced to marry Ansar Dine “husbands” (Judgment, paras 911–72). It made no findings with regard to Al Hassan’s responsibility for or even general connection with the four women or their Ansar Dine “husbands” in establishing the facts relevant to this charge, proceeding to the legal characterization of these established facts. 

In this regard, a majority of the Chamber, Judges Mindu and Prost, concluded that the conduct in question satisfied both the material and mental elements of Article 7(1)(k) (paras 1420–37). Even when assessing mens rea, the majority did not touch on Al Hassan’s alleged knowledge of the marriages, instead satisfying itself that “the members of Ansar Dine/AQIM who engaged in the relevant conduct, including the victims’ ‘husbands’, were aware of the factual circumstances that established the character of the act” (para. 1438). Al Hassan’s conduct or knowledge in relation to this crime was rightfully not assessed as part of the legal characterization of the facts. While the same majority concluded that Al Hassan is “criminally responsible pursuant to Article 25(3)(d) of the Statute for contributing to” the crime against humanity of other inhuman acts in the form of forced marriages (para. 1718), he was ultimately found not to be liable for these crimes due to Judge Mindua’s position that duress excluded the accused’s responsibility for all his criminal conduct (para. 5232; see Dissenting Opinion, paras 102–18). 

But unlike this principled approach to forced marriages, the judges were haphazard with respect to the war crime of attacking protected property, raising the question of wheather the judgment contains a “full and reasoned statement of the Trial Chamber’s findings on the evidence and conclusions” as is required by Article 74(5) of the Rome Statute. Robust elaboration on such findings are crucial to providing the Appeals Chamber a sufficient recond on the basis of which to review the trial judgment  (see Bemba, para. 50; Gbagbo and Blé Goudé, para. 161). By including its assessment of Al Hassan’s contribution (or lack thereof) to the acts in question in its findings of fact, the Chamber foreclosed legal characterization of the acts—which it had established as a matter of fact—and thus avoided having to assess the definition and temporal scope of the term ‘attack’ in conduct of hostilities war crimes. The Trial Chamber circumvented the question by acquitting the accused based on the absence of evidence that he “took any particular action or had a specific role in relation to” the acts (para. 1055), without characterizing the facts, amounting, in effect, to an acquittal based on an absence of individual criminal responsibility. 

Among the charges Al Hassan was acquitted of—which included the crimes against humanity of rape, sexual slavery, persecution (on the basis of gender), and other inhumane acts (forced marriages) and the war crimes of rape and sexual slavery—the war crime of directing attacks against culture property stands alone as the only crime whose occurrence was not established (nor was it ever considered). The Chamber established that all the other crimes were, in fact, committed by members of Ansar Dine but, like in the case of directing attacks against cultural property, based its acquittals on the absence of Al Hassan’s criminal responsibility for them. This represents a major failure on the part of the Chamber, not only because it leaves the definition of ‘attack’ unclarified but because it betrays one of the central expressive purposes of an international criminal trial. 

While this trial was, ultimately, about the responsibility of Al Hassan, in a much broader sense, it south to put the administrative practices and institutionalized conduct of Ansar Dine itself on trial. This is perhaps best displayed in the context of the crime against humanity of persecution on the basis of gender, which was charged for the very first time in Al Hassan and quickly became a central charge that defined, in large part, the significance of the case. And while the Trial Chamber acquitted Al Hassan on this charge on the basis of an absence of his individual criminal responsibility, a majority did, as Heller explains, establish that the crime of gender-based persecution nevertheless did occur in the context of Ansar Dine’s reign (see Judgment, paras 1734–35). The affirmation that certain international crimes were committed as part of Ansar Dine’s rule—even if Al Hassan, a mid-level functionary (“une petite sardine,” as the Defence argued), is not individually liable for each of them—lies at the heart of the ICC’s contribution to truth and reconciliation in Mali and its delivery of some modicum of justice to the people subjugated by the group. The Trial Chamber’s failure to pronounce on the legal character of the acts of destruction of cultural property it establishes did occur as a matter of fact and thus has a considerably negative impact, denying the expressive justice afforded to victims by a judicial finding that certain grave international crimes have taken place. 

The Definition of “Attack”: Qua Vadis? 

Despite being well-positioned to do so, by failing to legally characterize the facts surrounding the destruction of cultural heritage sites in Timbuktu independently of its findings on the individual criminal responsibility of the accused, the Al Hassan Trial Chamber failed to provide much-needed clarity as to the scope of the term ‘attack’ in conduct of hostilities war crimes. Despite the agreement of three judges of the Ntaganda Appeals Chamber in 2021 rejected a narrow interpretation of ‘attack,’ their starkly differing rationales in reaching this conclusion and Judge Akane’s support for a restrictive reading of the term in obiter underscores the profound ambiguity that persists in this crucial area of both IHL and international criminal law. 

The issue will inevitably emerge in future cases before the ICC. The extent to which IHL regulates—and provides from individual criminal responsibility for—acts and conduct occurring outside the traditional understanding of ‘combat actions’ presents itself as a pertinent question in many contemporary armed conflicts before the Court. For instance, do Israeli military strikes on Palestinian civilians in the occupied West Bank—where actual combat engagement between adversaries is sporadic—qualify as ‘attacks’ against civilians? Do acts of violence against cultural sites in Russian-occupied regions of Ukraine qualify as ‘attacks’ against protected property? The Al Hassan trial judgment could have served as a valuable precedent in answering these questions. It will now fall to a future Trial Chamber—or, in all likelihood, the Appeals Chamber (eventually)—to settle what has become an unacceptably unsettled area of the ICC’s jurisprudence.