Judge Mindua’s Separate Opinion in Al Hassan: International Humanitarian Law and the Right to Political, Legal and Cultural Self-Determination

[Amanda Alexander is a senior lecturer at the Australian Catholic University]

The ICC’s delayed judgement in the Al Hassan case had been long-anticipated in the hope that it might contribute to some emerging areas of international criminal law – in particular gender-based crimes and the treatment of non-state actors’ governance. When, however, the long and complex judgement was published, it created some confusion about its conclusions and their justifications. Judge Mindua’s Separate Opinion, which appeared on 27 June 2024, provides some explanation for these outcomes, but it also raises further questions. The opinion is notably different in emphasis from the majority Trial Judgment and Judge Akane and Judge Prost’s Separate Opinions. The trial and the majority Trial Judgment focused on Ansar Dine/AQIM’s system of governance during their occupation of Timbuktu in 2012; many of the charges depended on the characterisation of their rules and punishments as war crimes or crimes against humanity that, the Prosecution argued, had a disproportionate effect on women. As a result, the trial and judgment had to grapple with the criteria for legitimate domestic law and legal processes. Judge Mindua’s Separate Opinion, however, raised questions about the nature and domain of international humanitarian law that were not problematised in the other judgments. These included the legitimacy of Ansar Dine/AQIM’s armed struggle; its rights and obligations under the international law of occupation; and the legality of Sharia under international and domestic law. Although, at first reading, many of these discussions appear as digressions, they reveal a particular approach to international law that lays the foundation for Judge Mindua’s conclusions and the final verdict in the Trial Judgement. 

Ansar Dine/AQIM’s Armed Struggle in International Humanitarian Law

The legitimacy of Ansar Dine/AQIM’s fight in Mali was not an issue in the case, and not relevant to any determination on war crimes or crimes against humanity, given the foundational separation between the jus ad bellum and jus in bello. Nevertheless, the first part of Judge Mindua’s Separate Opinion lays out Ansar Dine/AQIM’s right to use force against Mali and to create a separate state in the north of this country, which would be subject to Sharia law [18]. This, Judge Mindua emphasises, was an exercise of the right of self-determination, which he describes as a pillar of international law [15]. In this way, Judge Mindua begins his analysis by focusing on a jus ad bellum in which the fight for self-determination is a legitimate and justified struggle. 

Judge Mindua then engages in a theoretical discussion about why non-state actors, such as Ansar Dine/AQIM, are subjects of international humanitarian law. Again, this theoretical question is not at issue in the case. The Prosecution only had to show that Ansar Dine/AQIM demonstrated the requisite degree of organisation to be considered an armed group under international humanitarian law; it did not have to justify why international humanitarian law governs organised non-state parties. Judge Mindua does this, however, relying on an article by Jann Kleffner, which outlines a number of possible justifications, including the argument that the power of the state to legislate for all its nationals binds them, even if they take up arms against the state [19].

The International Law of Occupation

Having established Ansar Dine/AQIM’s right to fight and justified its legal personality, Judge Mindua considers, at length, the legal characterisation of Ansar Dine/AQIM’s occupation of Timbuktu in 2012 [34-38, 42-54]. Despite the trial’s focus on the occupation, this was not an important question in the case or the other judgments. The Defence had argued in its early submissions that Ansar Dine/AQIM’s occupation could not be considered a legal occupation, as the laws governing occupation only apply to international armed conflicts [120].  This meant, the Defence insisted, that these laws, which impose many obligations on an occupier, could not apply in Timbuktu. The Pre-Trial Chamber, consisting of Presiding Judge Péter Kovács, Judge Marc Perrin de Brichambaut, and Judge Reine Adélaïde Sophie Alapini-Gansou, agreed. It recognised in the Confirmation of Charges that ‘there was not an “occupation” in the legal sense’, but pointed out that Timbuktu was run by the soldiers of AQIM and Ansar Dine, which meant that crimes committed by Ansar Dine or AQIM in that period would have a nexus to the armed conflict [226]. This acknowledgement meant that the status of the occupation was not an issue in the majority Trial Judgment. The word occupation was generally, if not consistently, put in quotation marks as ‘occupation’ and the charges addressed possible crimes that took place during this ‘occupation’, rather than breaches of the legal regime of occupation. 

Judge Mindua, however, upsets this orthodox account of occupation, arguing that non-state parties’ occupations are covered by the international laws of occupation. He does this by, again, introducing jus ad bellum or just war considerations. He argues that the established right to self-determination must entail a right to occupy; self-determination, he says, is first realised as occupation. It is occupation that allows a group to exercise its authority and build up power (Separate Opinion [34]). Judge Mindua later directly states that the legality of occupation is governed by the UN Charter and the jus ad bellum. This is a surprising claim, given that the rules of occupation are found in the 1907 Hague Convention and the 1949 Geneva Convention IV, which are associated with the jus in bello. Moreover, the legality of occupation is generally considered to rest, as stated by Adam Roberts in the 1984 paper that Judge Mindua cites (Separate Opinion [35]), on a de facto occupation during an international armed conflict. 

As such, even if the legitimacy of an occupation were justified by the jus ad bellum, it is still hard to argue that this informs the legal regime governing occupation. Judge Mindua, however, also argues that that international humanitarian law is constantly evolving and is increasingly more interested in the actual conditions of a conflict rather than its designation as international or internal [44]. As a result, he states, Article 43 of the 1907 Hague Regulations and Article 64 of the 1948 Geneva Convention IV apply. These articles require an occupier to restore and ensure public order and safety, while respecting the laws in force in the country. Judge Mindua argues that these articles, and the responsibilities of occupiers to uphold respect for IHL and human rights, mean that Ansar Dine/AQIM had the right to ‘put in place institutions that they considered appropriate not only to ensure order and justice, but to do so as best as possible of their ability to respect Islamic norms as provided by Islam.’ (Separate Opinion [52])

Ansar Dine/AQIM’s Legal Regime

Judge Mindua still has to address the second part of the Hague and Geneva articles and decide whether Ansar Dine/AQIM’s regime respected the laws in force in the country. This was a question that the Prosecution had addressed throughout the trial – even though it did so without arguing that the occupation was governed by these laws. In their attempt to present Ansar Dine/AQIM’s rules and punishments as criminal, the Prosecution and majority judgement had depicted them as foreign; they insisted Ansar Dine/AQIM’s regime represented a change to the culture of Timbuktu. As the majority judgment stated: 

people saw foreigners imposing their terms on them: they could only accommodate their life and their system of living to the interpretation of Islamic Sharia which was imposed with a force of arms in the city.

Trial Judgment [736]

This statement also demonstrates the majority and Prosecution’s wariness of equating AQIM/Ansar Dine’s governance with a general account of Sharia. They were careful to always describe it as a ‘version’ or ‘interpretation’ of Sharia and they focused on the population’s perception and experience of these rules. Judge Mindua, in contrast, dealt with the question raised by the international laws of occupation by looking in more abstract and general terms at the character of law in Mali and the possibilities allowed by Sharia as a legal system. He considers the legality of the punishments examined in Al Hassan: the death penalty; amputation; and flogging. The death penalty was provided for in Mali’s criminal law before the arrival of Ansar Dine/AQIM in Timbuktu; it was, Judge Mindua states, therefore allowed (Separate Opinion [58]). Amputation and flogging were, however, more problematic. They had not really applied in Mali [56] and, as Judge Mindua acknowledges, they appear as torture to many international lawyers [64]. Nevertheless, Judge Mindua points out, they are legal sanctions in states which belong to the United Nations. 

As such, Judge Mindua will not state that these sanctions are necessarily illegal, even though he notes their incongruency with human rights and international law. He remains equivocal on whether Ansar Dine/AQIM changed the law of Mali by introducing them; the most he is prepared to say is that Ansar Dine/AQIM were rather rigorous with regard to Malian Law and may have amended the Penal Code and the Code of Criminal Procedure [55].  Nevertheless, he says that it would be hard for many Muslims to say that these penalties are illegal because they are provided for in the Koran [56]. Thus, although Judge Mindua does not clearly declare that these rules complied with the Hague and Geneva Conventions, he implies that Ansar Dine/AQIM were entitled to introduce them as part of a legitimate struggle to uphold their authority and to further a vision of law and morality that has some resonance with established legal systems. Indeed, he praises Al Hassan and Ansar Dine for securing and rescuing the population of Timbuktu and restoring order in the absence of state structures [119-121]. 

Mistake of Law

If the legality of Ansar Dine/AQIM’s rules remains somewhat ambiguous in this Opinion, they do have enough of a veneer of lawfulness to serve as an excuse. Judge Mindua states that Al Hassan could not reasonably be expected to know that these sanctions, provided for by Sharia, would constitute criminal acts for which he could be held guilty [101]:

Al Hassan could not have been aware that he was committed crimes when he participated in floggings, because since these same acts were for him precisely the opposite: they consisted of doing justice, according to his own conception of justice, and that of the majority of people who were around him at the time of the events, in particular the leaders and other members of Ansar Dine/AQIM, but also members of the population.

Separate Opinion [99]

Such a mistake of law, Judge Mindua argues, can negate the mens rea of a crime, if it leads to an individual wrongly believing that he could legitimately perform an act [93]. Mistake of law therefore served as a defence to the charges of war crimes and crimes against humanity that related to flogging. The other charges were excused, in Judge Mindua’s opinion, by the additional defence of duress [113]. Since this defence could also have excused the charges related to flogging, the long discussion of self-determination, occupation and Sharia is, arguably, more significant as a comment on the nature and scope of international law than as an explanation of the outcome of the trial. For, when combined with Judge Akane’s finding that gender persecution, rape and forced marriage did not form part of Ansar Dine/AQIM’s common purpose, for which Al Hassan could be held liable, Al Hassan was acquitted of these charges in the Trial Judgment.As such, Judge Mindua’s Separate Opinion contributed to the complexity of the judgment, while also complicating its broader approach to international humanitarian law. His opinion revived, in a new context, the perennial debates about the relationship between just wars and the protections of the jus in bello. In doing so, it reframed the reach of international humanitarian law and the paradigms for assessing international and domestic law. Whether or not these arguments are convincing, the Opinion demonstrates a point Judge Mindua touches on in his introduction and conclusion: the difficulties entailed in using an international law, characterised by both universalist and pluralist ambitions, to judge non-state actors who fall outside its normative framework, while attempting to avoid judgment on their alternative political and legal paradigms. Whether this is feasible or desirable will require ongoing discussion, but hopefully this post explains how these questions and reasoning inform the Al Hassan decision.