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.
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.
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