ICC Rights Watch

First Witness of the Prosecution Testifies at Al Hassan’s Trial

By: William Krueger

Impunity Watch Staff Writer

THE HAGUE, Netherlands – The trial of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mohamed (Al Hassan) began back on July 14th, 2020 in the International Criminal Court (ICC) in Trial Chamber X. Al Hassan, an alleged member of Ansar Eddine/Al Qaeda, has been charged with crimes against humanity and various war crimes.

Mr. Al Hassan during the opening of the confirmation of charges hearing at the seat of the Court in The Hague.

The charges stem from April 2012 to January 2013 where the prosecutor believes that Al Hassan acted as the de facto chief of an Islamic police force that, with his authority, committed acts of violence against civilians in the city of Timbuktu, Mali. Furthermore, the prosecutor believes that Al Hassan had acted in the enforcement of a policy of forced marriages that led to the enslavement and rape of women in the Timbuktu region. The first day of trial consisted of a reading of the charges in the court; after which the Chamber was assured that Al Hassan fully understood what he was being accused of. At this point in the trial, Al Hassan has not plead guilty or not guilty.

On September 8th, 2020 the court had a witness for the prosecution, Harald Doornbus, sworn in under Rule 66 of the Rules of Procedure and Evidence used by the ICC. Doornbus identified himself as a freelance journalist who had been working in the country of Mali in January 2013. Doornbus had gone into the bank and the Hotel La Maison, which were transformed into a police station and the Sharia court for the Islamic police respectively. In both locations, he had collected documents written in Arabic. Pictures taken by Doornbus and the documents he had collected were entered into evidence by the Prosecutor. One of the documents collected by Doornbus had two women in niqabs with dress code instructions in Arabic and French. The Prosecution then rested their examination of Doornbus.

The Legal Representatives of the Victims then questioned Doornbus about how the population of Timbuktu reacted to the news of the militants fleeing upon action by Malian and French forces. The Defense then had their opportunity to cross-examine Harald Doornbus. The Defense questioned Doornbus on his relationship with the ICC and his conduct and connections in Mali. The factual integrity of the bank was also brought into question as Doornbus had to get entry from an unknown person who had a key to the location. Doornbus also admitted he had to work quickly and as a result, some documents that were not collected or photographed may have been missed in his haste. He also did not take some documents when visiting the Hotel La Maison as the manager was there and Doornbus had concerns about offending him by taking the paperwork. The Defense also brought up how Doornbus had previously recovered documents overlooked by the FBI in Benghazi, Libya.

On September 18th, 2020, Al Hassan’s associate counsel, Nicoletta Montefusco, has filed a motion to be withdrawn from the defense team without the consent of Al Hassan or lead counsel Melinda Taylor. Currently, the public does not know of the result of this motion by Montefusco. The trial of Al Hassan continues on September 21st, 2020. As of October 3rd, 2020 the Prosecution continues to build their case against Al Hassan.

For further information, please see:

International Criminal Court – Case Information Sheet: Situation in Mali – 14 Jul. 2020

International Criminal Court – Al Hassan Trial Opens at International Criminal Court – 14 Jul. 2020

International Criminal Court – 08 September 2020 – Session 19 – 08 Sep. 2020

International Criminal Court – Request for Withdrawal – 18 Sep. 2020

Charges Amended in Al Hassan Case

By: Andrew Kramer

Impunity Watch Staff Writer

THE HAGUE, The Netherlands – On April 23, 2020, Pre-Trial Chamber I of the International Criminal Court (“ICC”) released a confidential decision amending the charges against Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mohamed (Al Hassan). A public redacted version of the decision is not yet available.

Al Hassan looking on in Pre-Trial proceedings. Photo Courtesy of the International Criminal Court.

This decision partially granted the Prosecutor’s request to modify the charges, filed on January 31, 2020.  Al Hassan’s charges of war crimes and crimes against humanity will now be predicated on additional facts. 

In the Prosecutor’s heavily redacted public written submission, she indicated that new witnesses have become available to testify, and their testimony is substantial to the case.   

Modification to charges that have already been confirmed generally occur when essential evidence becomes available to the investigating Prosecutor which was not known or available pre-confirmation.  According to article 61(9) of the Rome Statute, “after the charges are confirmed and before the trial has begun, the Prosecutor may, with the permission of the Pre-Trial Chamber and after notice to the accused, amend the charges.”  While the Prosecutor may not freely conduct investigations post-confirmation, this article has been interpreted by other Pre-Trial Chambers to apply only if it is necessary to establish the truth, or if special circumstances exist.  The Prosecutor must also show that this collection of new evidence will not prejudice the Defense.

In areas where the risk of retaliation against a witness is high, such as in Timbuktu, Mali, identifying witnesses and ensuring their safety is a challenge.  Because of this difficulty, there has been significant delay in gathering witnesses.  In the Al Hassan case, the Prosecutor has sought to avoid unnecessarily exposing individuals to potential risk by contacting them only when absolutely necessary.   Ultimately, volunteer witnesses who would not provide duplicitous evidence and who were in favorable security circumstances were selected to testify. 

With the lengthy Pre-Trial Phase complete, the case will proceed to Trial.  Al Hassan is accused of war crimes and crimes and crimes against humanity allegedly committed in Timbuktu, Mali as member of Ansar Eddine/Al Qaeda between 2012 and 2013.  The opening of the trial is scheduled for July 14, 2020, With the Prosecution’s presentation of evidence commencing on August 25, 2020.

For further information, please see:

International Criminal Court – Al Hassan Case: ICC Pre-Trial Chamber I Accepts Amendments to the Charges – 23 Apr. 2020

International Criminal Court – Al Hassan Case Information Sheet – 4 Feb. 2020

International Criminal Court – ICC Pre-Trial Chamber I Confirms Charges – 30 Sept. 2019

ICC Prosecutor Files Response to Ntaganda Appeal

By: Andrew Kramer

Impunity Watch Staff Writer

THE HAGUE, The Netherlands – On April 14, 2020, the International Criminal Court (“ICC”) released the public redacted version of the Prosecutor’s response to Appellant’s brief in the case of The Prosecutor v. Bosco Ntaganda.  ICC Prosecutor Fatou Bensouda presented the appellee’s brief.

Congolese warlord Bosco Ntaganda stands in the ICC courtroom during closing statements of his trial. Photo Courtesy of Reuters.

The Prosecutor’s brief addresses each of Ntaganda’s twelve grounds of appeal in turn.  Whereas Ntaganda attempted to downplay his involvement in crimes of sexual violence and slavery in grounds one through four, the Prosecutor asserted that Ntaganda played an essential role in the commission of these crimes throughout the period of the charges.  Furthermore, the Prosecutor asserted that Ntaganda himself killed and raped, participated in recruitment drives, and used children under 15 years of age as his personal escorts.  The Prosecutor maintained that the Trial Chamber assessed these factors correctly when arriving at Ntaganda’s 30-year prison sentence.  

In addressing Ntaganda’s argument in grounds seven through twelve, that the Trial Chamber failed to properly assess alleged mitigating factors, the Prosecutor asserts that the Ntaganda simply disagrees with the Court’s fair evaluation and rejection of these circumstances.  The Prosecutor stated that the Court correctly considered Ntaganda’s alleged acts of protecting civilians from attacks, saving the lives of enemy soldiers, and contributing to the reconciliation with the Lendu community, among others, however they did not carry enough weight to impact his sentence.  This difference of opinion does not indicate a failure to consider the circumstances properly.

As for grounds five and six, that the Court erred in applying some aggravating circumstances, the Prosecutor argued that Ntaganda misapplied the relevant provisions of the Rome Statute.  While Ntaganda asserted that the Court considered an improper aggravating circumstance in ground 5, the Prosecutor stated that the elements of the uncharged crime allow for it to be considered as an aggravating circumstance.  In ground 6, which Ntaganda accused the court of “double-counting” some factors the Prosecutor argued that Ntaganda failed to understand the “two-step” process the Court uses for sentencing established by article 78(3).

While grounds one through four and seven through twelve are likely based on matters which were at the discretion of the trial court, and therefore likely to be upheld on appeal, the arguments in grounds five and six present reasonably more nuanced legal issues. Particularly interesting is the Court’s “two-step” process for sentencing, in which the individual sentences for each crime is calculated before the appropriate joint sentence is determined.  While sentences are calculated two times using this process, aggravating factors are not “double-counted,” for each sentence.

No scheduling order has been released for the Appeals Hearing of Ntaganda.  Ntaganda also stated to be appealing the judgement of conviction in his notice of appeal, however no brief has been filed yet.

For further information, please see:

International Criminal Court – Prosecution Response to “Sentencing Appeal Brief” – 14 Apr. 2020

International Criminal Court – Case Information Sheet: The Prosecutor v. Bosco Ntaganda – 7 Nov. 2019

Appellant’s Brief Released in Ntaganda Case

By: Andrew Kramer

Impunity Watch Staff Writer

THE HAGUE, The Netherlands – On April 8, 2020, the International Criminal Court (“ICC”) released the public redacted appellate brief of former Congolese militia leader and convicted war criminal Bosco Ntaganda. The brief was originally filed on February 10, 2020 but was unavailable to the public. Ntaganda is currently appealing only his 30-year sentence of imprisonment.

Bosco Ntaganda looks on in an ICC courtroom during trial. Photo Courtesy of CNN.

Ntaganda raised twelve grounds on appeal, generally asserting that the Trial Chamber failed to assess mitigating factors properly when determining his sentence. Grounds one through four claim the Trial Chamber failed to properly assess Ntaganda’s “limited” degree of participation in various crimes committed, including rape and sexual slavery. Grounds seven through twelve claim the Trial Chamber failed to properly assess mitigating conduct of Ntaganda, both during the commission of the crimes and in the courtroom. These grounds assert the Court did not properly consider that Ntaganda saved the lives of enemy soldiers, protected civilians from attacks on occasions, protected an individual from harm, contributed to reconciliation with the Lendu community, and cooperated with the Court. 

The remaining grounds assert the Court erred in assessing aggravating factors. Ground five asserts the Court considered an improper aggravating circumstance in determining its sentence, which it claims fell outside the scope of the crimes charged. Ground six asserts the Court “double-counted” certain aggravating factors to arrive at its sentence.

This is a robust brief submitted on behalf of Ntaganda. While he may find little sympathy from the Appeals Chamber for his “limited role and knowledge” in crimes of sexual violence and slavery, a merit which the Court may more thoroughly address is the question of what constitutes a proper aggravating factor. The degree of relation of the factor to the crime, relations to an uncharged crime, and how to apply the factor in a sentencing decision are all areas which the Court might provide clarity.

There is not much precedent for the appellate process of the ICC. Only two other cases have reached decision by the Appeals Chamber, both of which confirmed the Trial Chamber’s findings. In the only appellate decision, which upheld a sentence of imprisonment, the case of The Prosecutor v. Thomas Lubanga Dyilo, the Appeals Chamber declined to reduce a prison sentence, partially because the appellant had already served most of it. If the present case reaches a decision on the merits, it could solidify sentencing procedure, and depending on the outcome, empower or restrain the Trial Chambers in their sentencing decisions.

Once the Prosecutor responds to the Appellant’s brief, a hearing date will be set. The COVID-19 outbreak will likely slow progress of this appeal process, as all ICC staff members based in The Hague will be working remotely until at least April 28.  

For further information, please see:

International Criminal Court – Public Redacted Version of “Sentencing Appeal Brief” – 10 Feb. 2020

International Criminal Court – Case information Sheet: Situation in the Democratic Republic of the Congo – 7 Nov. 2019

International Criminal Court – The Prosecutor v. Thomas Lubanga Dyilo – 15 Dec. 2017

ICC Presidency Sets Chamber for Yekatom and Ngaïssona Trial

By: Andrew Kramer

Impunity Watch Staff Writer

THE HAGUE, The Netherlands – On March 16, 2020, the Presidency of the International Criminal Court (“ICC”), the administrative organ of the ICC, issued a decision constituting Trial Chamber V. This decision referred the case of The Prosecutor v. Alfred Yekatom and Patrice Edouard Ngaïssona to Trial Chamber V.  The Presidency appointed Judge Bertram Schmitt, Judge Péter Kovács, and Judge Chang-ho Chung to oversee the trial. 

Patrice Edouard Ngaïssona (left) and Alfred Yekatom (right) in pretrial proceedings before the ICC. Photo Courtesy of the International Criminal Court.

This decision follows a relatively short pre-trial phase in which two separate cases were brought before Pre-Trial Chamber II on November 23, 2018 (Yekatom), and January 25, 2019 (Ngaïssona).  On February 23, 2019, Pre-Trial Chamber II joined the cases in order to enhance the fairness and expeditiousness of proceedings, reduce the duplication of evidence, and eliminate inconsistency in presentation.  It is not uncommon for the pre-trial phase of some cases to last several years. 

On December 11, 2019, Pre-Trial Chamber II partially confirmed the charges of war crimes and crimes against humanity brought against Yekatom and Ngaïssona.  The two militia leaders from the Central African Republic (“CAR”) are accused of being involved in a widespread attack on the Muslim civilian population of the country between September 2013 and December 2014.  Among other crimes, Yekatom and Ngaïssona are specifically accused of murder, rape, intentionally directing an attack against a building dedicated to religion, forcible transfer of population and displacement of the civilian population, severe deprivation of physical liberty, cruel treatment, and torture.

This case has presented unique challenges for the ICC.  In a previous pre-trial appeal, The Prosecutor requested additional time to gather witnesses because this case is larger than most that the ICC has previously handled. Larger cases tend to require more witnesses, which in turn requires more protective measures, and more information to review.  However, as the Court noted, the security situation in the CAR is particularly unreliable, and the issue of witness protection has influenced the process of gathering evidence.  For example, the Court has conditioned the authorization of arrest warrants on whether witnesses could be adequately protected.

Moving forward, Trial Chamber V will hold status conferences, confer with the parties and participants, set the trial date, and determine the procedures necessary to facilitate fair and expeditious proceedings.  At trial, the Prosecution must prove the guilt of the accused beyond a reasonable doubt.  There is no separate jury in the ICC; the three judges issue a verdict, and if guilty, a sentence. 

For further information, please see:

International Criminal Court – Case Information Sheet: Situation in Central African Republic II – 17 Mar. 2020

International Criminal Court – Yekatom and Ngaïssona case: ICC Presidency constitutes Trial Chamber V – 17 Mar. 2020

Coalition for the International Criminal Court – ICC Pre Trial Chamber II confirms charges against Alfred Yekatom and Patrice-Edouard Ngaïssona – 17 Dec. 2020