Forced Marriage in the Al Hassan Trial Judgment

[Melanie O’Brien is Associate Professor of International Law at the University of Western Australia and President of the International Association of Genocide Scholars.]

[Kathleen M. Maloney is Visiting Law Professor at Lewis & Clark Law School and Founding Board Member of the international human rights organization, Just Planet.]

[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.]

Introduction

On 26 June 2024, following a five month delay due to judge illness, Trial Chamber X of the International Criminal Court (ICC) released the Trial Judgment (TJ) in the Al Hassan case related to international crimes committed in Timbuktu, Mali, by the Ansar Dine and Al Qaeda in the Lands of the Islamic Maghreb (AQIM) armed groups. In addition to the TJ, there are also separate and partly dissenting opinions (all documents available here). Charges against Al Hassan included war crimes and crimes against humanity, such as torture, persecution, mutilation, rape, forced marriage, and sentencing without due process. To the disappointment of victims and many following the case, he was acquitted of all of the gender-related charges. Additionally, there is much confusion about some aspects of the judgment that are convoluted, complex, and even contradictory. The grounds for some of the acquittals failed to follow the reasoning and findings of the ICC’s Appeals Chamber in its recent Ongwen Judgment (AJ), including on the ‘other inhumane act’ of forced marriages.

This post will focus on the findings relating to forced marriage (and by proxy but without detail, the associated sexual violence), which are also perplexing and difficult to ascertain. To start with, and to avoid reader confusion before we go into detail of the different opinions, the summary of the outcome is:

• All three judges found that forced marriage and the associated sexual violence was perpetrated by Ansar Dine/AQIM.
• Judge Mindua exonerated Al Hassan of forced marriage and the associated sexual violence under the defence of duress.
• Judge Akane found Al Hassan not guilty of forced marriage and the associated sexual violence because the crimes lack the necessary nexus, the relevant crimes were not part of the common purpose, and Al Hassan made no contribution to the crimes.
• Judge Prost found Al Hassan guilty of forced marriage and the associated sexual violence.
• Therefore, two out of the three judges found Al Hassan not guilty of forced marriage and the associated sexual violence, but each for different reasons.
• Consequently, Al Hassan was found not guilty of forced marriage and the associated sexual violence.

Forced Marriage Context in Timbuktu

The armed groups Ansar Dine/AQIM engaged in ‘jihadi marriages’ in the territory they controlled for ten months in 2012-2013. This practice was not curtailed by leadership, who instead encouraged the marriages by offering rewards for married members (money and accommodation). The judgment notes that the ‘jihadi marriages’ were not all forced; however, deeming some of the ‘marriages’ as consensual overlooks the coercive environment in which these ‘marriages’ took place. Girls as young as 12 were taken into ‘jihadi marriages’ with Ansar Dine/AQIM members. These marriages were ‘negotiated’ through prominent local persons acting as intermediaries who pressured families into the marriages, accompanied by armed Ansar Dine/AQIM members. Victims testified to being taken from their families for marriage at gunpoint. Once married, the ‘wives’ were required to obey their ‘husbands’, provide (non-consensual) sexual services, and undertake domestic household duties and childcare. Some girls and women became pregnant, giving birth to children, with both mother and child stigmatised. The marriages were carried out to enable group members to circumvent the Ansar Dine/AQIM rule against sexual relations outside of marriage. Consequently, rape was prevalent in the marriages. Some ‘wives’ were married for only brief periods of time, with some subsequently passed on for marriage to another group member. When the armed groups left Timbuktu, ‘wives’ were discarded.

Trial Judgment

The majority of the Trial Chamber, being Judges Prost and Mindua, found that forced marriage took place under the coercive environment that Ansar Dine/AQIM created in Timbuktu. The fact that dowries were provided was held not to diminish the forced nature of the marriages, but instead to feign the appearance of a traditional marriage, ‘in order to validate the sexual violence that followed’ (para. 1418). The actions of the perpetrators were deemed to have caused great suffering (para. 1427).

While the majority determined that not all ‘jihadi marriages’ were necessarily forced marriages, they were clear that the evidence of forced marriages presented to the Court and the totality of the coercive environment in Timbuktu led to the conclusion that forced marriage did occur, that this was known and deemed appropriate by Ansar Dine/AQIM leadership, and that no actions were taken by that leadership to stop forced marriages (paras. 1644-46).

The majority therefore found Al Hassan criminally responsible for forced marriage and its associated sexual violence crimes (sexual slavery and rape), with the following reasoning (paras. 1707-18):

• Ansar Dine/AQIM committed forced marriages.
• The evidence demonstrates Al Hassan’s contribution, actively supporting the ‘jihadi marriages’ through facilitating money and payments for the marriages and participating in ‘negotiations’. He also contributed to the ‘overall coercive atmosphere in which forced marriages took place’ in his role with the Islamic Police.
• Al Hassan was aware of the intention of Ansar Dine/AQIM to commit these crimes and that the full circumstances of the marriages included forced marriages, and his participation was deliberate.
• As a member of the Islamic Police, Al Hassan knew of and enforced the prohibition of sexual relations outside of marriage, and thus his conduct contributed to the crimes of rape and sexual slavery in the context of forced marriage.

It is notable that the majority decision continually refers only to ‘women’ in the context of forced marriages, despite a number of the victims being under the age of 18. An appeal decision should use the terminology ‘girls and women’ as acknowledgement of this factual circumstance, and to highlight the vulnerability of the victims for judgment and sentencing. The unique and long-term harm girls suffered due to gender and age merits analytical precision, so as not to obscure the gravity and impact of this crime on female children, such as happened in the case of the acquittals related to 14-year old female victim P-0565.

The majority applied the definition of forced marriage from Ongwen: ‘a situation in which a person is compelled to enter into a conjugal union with another person by the use of physical or psychological force, or threat of force, or by taking advantage of a coercive environment’ (TJ paras. 1190, 1420). However, the application of this legal definition to the facts by Judges Mindua and Akane fell short of the analytical rigor and standards regarding coercive context (paras. 738-740) set out in the Ongwen Appeals Judgment. As well, the TJ majority should have considered the unique harm – denial of relational autonomy – captured by the charges of forced marriage, along with the intersectional harms that take place when gender and young age are combined, when analysing, for example, the experiences of victim P-0565 under Count 2.

Mindua’s Separate and Partially Dissenting Opinion

Judge Mindua found that there existed a permanent state of threat against the physical integrity of Al Hassan and his colleagues, and that Al Hassan only joined Ansar Dine as protection from AQIM. Mindua finds Al Hassan to be timid, quiet and young, and that he ‘did not have the soul of an Islamic terrorist’ (para.114, authors’ translation). The evidence that Mindua relied upon is that of Ansar Dine witnesses, who claimed that they could have been punished for disobeying orders, but provide no evidence of such punishment occurring. Mindua’s standard for duress is far lower than the one set by the Court in Ongwen, which Mindua dismissed as being too narrow. Mindua does conclude that grave crimes were committed and that somebody should be held accountable, but that Al Hassan is not the guilty party due to duress (and for other crimes, mistake of law). Under Mindua’s low standard of duress, it would be difficult to hold anyone within Ansar Dine accountable for Ansar Dine’s crimes.

In evaluating Mindua’s decision, it is important to note that Al Hassan was 35 or 36 (not ‘young’), was educated, and held a prominent position in the Islamic Police. Al Hassan rose rapidly through the ranks, and ultimately became director of operations, seen as equivalent to commissioner or deputy commissioner, a key actor in the police. He gave orders followed by police, and participated in a wide range of police activities including the forced and ‘jihadi’ marriages. He was therefore not a low-ranking officer nor a youth incapable of making decisions, but instead an influential and active member of a coercive, violent system.

Akane’s Separate & Partly Dissenting Opinion

Judge Akane was dismissive of Mindua’s defence findings, declaring that there is ‘neither a factual nor legal basis that makes the defence of duress or mistake of law applicable to the present case’ (para. 4).

Nonetheless, Akane found Al Hassan not guilty of forced marriage. Akane reasoned that forced marriage was not committed as part of a common purpose of Ansar Dine/AQIM (despite it fitting directly into the gender persecutory ideology of both groups). Instead, she said that the use of intermediaries (such as Al Hassan) to ‘facilitate’ the marriages made them marriages by ‘negotiation’ and not by force. She determined that Al Hassan’s role did not contribute to ‘the pressure brought to bear on women and their families which facilitated forced marriages’ (para. 54).

Akane noted that marriage proposals ‘were on occasion rejected’ (para. 37), and even argued that the jihadi marriage arrangements were in place to ‘avoid instances of forced marriages’. She relied on testimonies from Ansar Dine/AQIM members that there were no forced marriages (statements clearly to their own advantage and from a male perpetrator perspective), and overlooked the testimony of victims and witnesses who experienced forced marriage at gunpoint or under other extreme coercion and were raped by their ‘husbands’. This decision also neglects the fact that some of the victims of forced marriage (according to Al Hassan’s own testimony) were girls as young as 12 or 13 years old, which, by definition in human rights law, is forced marriage.

Akane also seemed to define the term ‘forced’ as requiring force or threats of force, even though the Ongwen definition also refers to a coercive environment. Thus, her interpretation did not take into account the coercive environment of the marriages, which, in contrast, the TJ stated was created by Ansar Dine/AQIM members who were armed, intermediaries who were influential, and the fear of consequences for refusing a ‘jihadi marriage’ (para. 502). As noted above in the majority’s definition of forced marriage, a coercive environment is key in the definition of forced marriage. It is important to recall that courts have determined that a coercive environment includes, inter alia, components which were all present in Timbuktu: the military presence of hostile forces amongst the civilian population, the commission of other international crimes, the existence of armed conflict, and the vulnerability of victims (see Akayesu TJ 1998 para. 688; Gacumbitsi AJ 2006 para. 155; Foca AJ 2002 para. 130; Bemba TJ 2016 paras. 103-104; Ntanganda TJ 2019 para. 1056; Ongwen TJ 2021 para. 2710).

Akane stated: ‘I also note that, if one of the purposes of Ansar Dine/AQIM facilitating marriages was to spread its ideology and gain influence, using force and sexual violence appears to be clearly counterproductive to said purpose.’ (para. 38) This statement shows a surprising lack of understanding of the use of sexual and gender-based violence – including forced marriage – against girls and women during armed conflict and in atrocity contexts, which is widely used by violent groups to force the general population into submission. It also overlooks the ICC’s Pre-Trial Chamber (PTC) finding that the armed groups sought to ‘implant themselves in the population to better solidify their grip on the territory they controlled’ by mixing the ‘jihadists’ with the population and creating a new generation, and that the marriages were a means by which to ‘legitimise’ sexual violence through which the sexual needs of armed group members were provided for as a reward (along with money and accommodation to married group members) for their service (paras. 570-9 Confirmation of Charges). The PTC’s findings are upheld in the majority TJ, which draws on testimonies from Ansar Dine/AQIM members who testified that the marriages were ‘a means to gain influence amongst the population of Timbuktu and to disseminate their ideology in the entire society’ and as ‘an incentive to recruit more Ansar Dine/AQIM members’ (para. 493).

Prost’s Separate & Partly Dissenting Opinion

Judge Prost’s opinion contains a scathing rebuke of the defence’s argument of duress, and, like Akane, considers Mindua’s position on the defence to be ‘without legal reasoning and without any evidentiary support’ (para. 2). She emphatically advocates for the conviction of Al Hassan for forced marriage:

‘In the case of these crimes involving sexual violence, I am of the view that there is not a scintilla of evidence that Mr Al Hassan or any member of Ansar Dine/AQIM faced any form of compulsion to commit or contribute to these violent acts, let alone that which would meet the definition of duress under Article 31(1)(d) of the Statute. The people under duress in this case were the vulnerable women and girls of Timbuktu who were forced against their wills, in a coercive environment and through the use of threats and violence, to marry members of Ansar Dine/AQIM; victims who were then deprived of their liberty, subjected to horrific sexual violence at the hands of the new ‘husbands’, and discarded afterwards. In the context of this case I fail to see how Mr Al Hassan – an important member of the Islamic Police, working daily to sustain the coercive environment created in Timbuktu, who actively supported and facilitated Ansar Dine/AQIM’s practice of ‘jihadi marriages’ and directly contributed, with knowledge, to the pressure brought to bear on women and their families which facilitated forced marriages – was under duress in contributing to this crime.’ (para. 18)

Conclusion

The problems in the TJ and dissenting opinions make them ripe for appeal. For example, the Mindua and Akane discussions of forced marriage do not engage with the definition of forced marriage adopted by the majority TJ, taken from the Ongwen Appeals Judgment. Rather, they overfocus on the religious aspects of the ‘jihadi‘ (forced) marriages, overlooking the highly gendered nature, elements, and harm of these forced marriages. This becomes clear if one looks at the facts presented in evidence of those ‘jihadi marriages’, separates out the Judges’ discussion of religion, and then analyses the remaining gendered coercion and violence through the lens of ‘other inhumane acts’. Given the flawed reasoning described above, it is very likely that the Prosecution will appeal the TJ’s acquittal of Al Hassan on forced marriage and its associated sexual violence.

When Mindua and Akane’s opinions are factored in, the Chamber also acquitted the defendant of gender persecution but convicted him for religious persecution, thus collapsing the gendered offenses into the religious ones, a similarly appealable conclusion which will be examined in a subsequent blog post.

The Appeals Chamber thus may be able to consider important factors discounted by the Al Hassan TJ and additional opinions: the gendered nature of the forced marriage and other persecution crimes; the extremely coercive circumstances of girls and women in Timbuktu under Ansar Dine/AQIM; that Al Hassan’s position and experience did not render him a victim of duress; and that he was involved in the forced marriage process as an active and powerful leader and intermediary.

There may yet be justice, including reparations, for the girls and women who were subject to forced marriage and rape by Ansar Dine/AQIM.