ICC Chief Prosecutor’s statement at opening of the confirmation of Charges hearing in the case against Al Hassan

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ICC Prosecutor, Fatou Bensouda, with her Prosecution team during opening statement at the Confirmation of Charges hearing of the case against Al Hassan

Monsieur le Président, Monsieur le Juge, Madame la Juge,

Tombouctou a vécu la longueur du temps et le temps de l’histoire.

Pendant quasiment un an, d’avril 2012 à janvier 2013, Tombouctou a enduré l’occupation violente des groupes armés Ansar Dine et Al Qaeda au Maghreb Islamique.

Tombouctou, la perle du désert, la ville aux 333 Saints, a été soumise à leurs diktats. Tombouctou a subi les mains de l’oppression.

Dès qu’ils ont pris la ville, les membres d’Ansar Dine et d’AQMI ont créé des organes de contrôle et de répression.

Ils ont notamment créé la Police islamique dont Al Hassan Ag Mahmoud, le suspect devant cette Cour, a été, de facto, le commissaire incontournable et zélé.

Ce faisant, les membres de ces groupes ont exercé une emprise implacable sur Tombouctou, sa région et la population civile impuissante. Ils ont assujetti les Tombouctiennes et les Tombouctiens à leur pouvoir, invoquant et, surtout, imposant leur vision religieuse à grand renfort de brutalités et d’exactions constitutives de crimes contre l’humanité et de crimes de guerre au regard du Statut de Rome.

C’est là le cœur de la présente affaire: le recours à la violence, la commission de crimes pour imposer au forceps une vision idéologico-religieuse sur des Tombouctiens et Tombouctiennes rabaissés, humiliés, violentés et, pour tout dire, soumis à une véritable persécution dont ils ne voyaient pas la fin et dans laquelle Al Hassan a fourni une contribution essentielle.

Monsieur le Président, Monsieur le Juge, Madame la Juge, permettez-moi de citer les paroles d’un Tombouctien, tant elles sont criantes de vérité et traduisent la douleur et le désarroi des habitants.

Il déclara : « la ville est devenue une ville fantôme. Morte en ce sens que toutes les populations étaient terrées dans leur maison, de peur d’être réprimées, de peur d’être humiliées, de peur d’être brutalisées, de peur d’être violentées […] ». Le mot « peur » revient souvent dans cette phrase. Il résume le calvaire que les Tombouctiens ont vécu.

Permettez-moi de passer maintenant en anglais — with your indulgence, Your Honours, I shall now continue in English.

The resort to violence and total control to achieve the vision that I just described was merciless.

As the armed groups arrived, civilians managed to flee to Bamako or other southern cities, as well as to neighbouring countries such as Mauritania, Burkina Faso and Niger. They had to leave everything behind. They had to leave their lives behind. Years later, some still have not been able to return to their homes, their lives, to their land and the roots of their identity.

But others remained, for one reason or another. Some stayed behind because they simply did not have the means to flee; others because they had elderly parents to take care of; and still others because they could not resign themselves to abandoning their beloved city of Timbuktu, especially during one of the worst moments in its modern history. Those who remained were subjected to a constant climate of fear and repression.

In fact, all aspects of life were restricted and disobedience could lead to severe punishment.

At the time, a Timbuktu local stated, “In Timbuktu […] everything has [become …], illicit andforbidden. Another pointed out that the members of the groups “controlled everything. […]”. And in fact, all aspects of life had indeed fallen under Ansar Dine’s and AQMI’s self-proclaimed rules and prohibitions.

Private life, public life, leisure activities, cultural and religious practices, the manner of praying — absolutely everything, including the way people could dress, was affected.

Not only were these rules new, but they were also quite alien to residents of this age old city.

Moreover: they also amounted to a denial of many customs, traditions and social practices which had characterised the lives of the locals in Timbuktu, sometimes for generations. They constituted serious violations of their fundamental rights.

I shall give only a brief overview of this plethora of rules, which reflects the breadth and scope of the measures imposed:

  • Banning religious practices at the tombs and mausoleums of Muslim saints;
  • Prohibiting celebrations, such as the festival of Malououd;
  • Banning amulets and talismans;
  • Prohibiting statuettes, masks and pictorial representations;
  • Complete control over the media and radio;
  • Banning public gatherings;
  • Closing public schools;
  • Banning music and dancing;
  • Segregating the sexes;
  • Banning women from wearing jewellery and make-up, and even their traditional clothing; and
  • Imposing a new dress code on men and in particular women.

The list is long: I could go on.

The armed groups Ansar Dine and AQMI claimed that they were now the power. They asserted that there was no going back for Mali. The reality is that these two terrorist groups, which came from outside Timbuktu , had no legitimacy of any kind to impose such rules and prohibitions on the territory of a sovereign Malian State.

But beyond that — and I would like to emphasise this point — it is the sheer violencewith which these rules were implemented and sanctionedwhich justifies the referral of this case to your Chamber. The sheer variety of these rules was matched only by the cruelty with which the institutions set up by Ansar Dine and AQMI ruthlessly punished the residents of Timbuktu who had the misfortune of not abiding by them.

Indeed, in the event of a breach of these new imposed rules, the members of Ansar Dine and AQMI commonly resorted to corporal punishment. For example, this would be applied on the spot by the so called, “Islamic Police”, generally in the form of lashes by a whip. You will see some examples of this later on.

Alternatively, punishment was applied following decisions by the “Islamic tribunal”: an irregularly constituted tribunal which, for instance, authorised the Islamic Police to employ torture to obtain confessions – a fact, approach and practice Al Hassan would be very familiarwith. This was a tribunal through which Ansar Dine and AQMI tried to give a semblance of legitimacy to their actions.

These abuses were most often inflicted in public. The goal of Ansar Dine and AQMI was not only to make the offenders suffer physically and to humiliate them. Their goal was also to make an example of them, spread fear amongst the population, and subject them even further to their tyrannical rule.

Mr President, Your Honours,

Ansar Dine and AQMI are still active in Mali and the Timbuktu region.

They pose a grave danger to the safety of witnesses. I shall therefore not go into further detail here: you have the detail in the confidential version of the Document Containing the Charges.

The people of Timbuktu themselves know full well what I’m alluding to, because they have experienced these crimes and suffered physical and mental anguish as a result of them.

With your indulgence, I would just like to briefly mention the case of Dédéou Maiga, who unfortunately passed away in 2017. What happened to Dédéou Maiga represents one instance of the despicable violence inflicted on the residents. Mr Maiga was arrested by Al Hassan. He then endured a brutal amputation. He was tied to a chair in front of a gathered crowd. His hand was chopped off with a machete. A member of the armed groups held up the bloody hand as a signal to others. What was his crime? He allegedly had been caught engaging in petty theft. The groups’ goal was clearly to demonstrate their power and their willingness to impose their rule and rules at any cost. Their goal was also to terrorise the people of Timbuktu by the very cruelty of this crime.

Al Hassan himself was aware of the fear felt by the population. During his interview with investigators from my Office, Al Hassan pointed out, “[The residents] were not familiar with this punishment. It was the first time that they … that they’d seen that. […]. They were scared out of their minds. They couldn’t do anything. Everyone was afraid and feared the words ‘jihadist’ and ‘terrorists’. They were scared of this punishment.”

The multiple acts perpetrated against the inhabitants of Timbuktu and its region constituted a real attack against the civilian population.

Sentences handed down by an irregularly constituted tribunal, sentences without prior judicial proceedings, torture, cruel treatment, other inhumane acts, outrages upon personal dignity, attacks against historic monuments and buildings dedicated to religion, sexual slavery, acts of rape, and so on.

These are all grave acts and crimes under the Rome Statute, which when taken in their totality, fit the characterisation of the crime of persecution.

There was religious persecution in Timbuktu: all the rules and prohibitions imposed on the residents stemmed from the ideological and religious vision of Ansar Dine and AQIM.

There was also gender-based persecution.

Indeed, it was the women and girls of Timbuktu and the region who suffered the most. One witness reported that women had become the primary targets.

Women and girls were pursued into their very homes; they were abused, punished, beaten, imprisoned, and subjected to corporal punishment, for a variety of reasons: failure to wear clothing prescribed by the groups, giving water to a man, not having gloves at the market to pay and receive money, and so on.

I would like to go back briefly to prison conditions. Women imprisoned were kept in inhumane conditions in the cell at the Banque malienne de solidarité or BMS, which residents dubbed “the women’s nightmare cell”.  It was the little room housing the ATM. They were locked up there and treated shamefully. Some women remained incarcerated there for up to 72 hours. Up to 12 women could be there at any one time. All this took place in oppressive heat. They had to relieve themselves where they stood. The conditions were horrid.

My team will also describe the extreme degree of violence experienced by the women who were subjected to floggings. Al Hassan knows what I am talking about. He himself was personally involved in organising the infliction of physical abuse in public on women accused of adultery. Some of the details are unbearable: Imagine, for instance, collapsing under the sheer brute force and violence of repeated blows on skin and flesh.

But there was an additional level to the horror. I am referring to all the sexual violence the women and girls — sometimes, very young — were subjected to.

As one insider witness reported, there was an elaborate system of marriage in place, mainly intended to enable the members of the groups to satisfy their sexual needs without committing “adultery.”

It was, in actual fact, an elaborated system of ‘convenient’ marriages. Many women and girls were therefore forced into marriage, confined against their will, and repeatedly sexually assaulted and raped by one or more members of these armed groups. As one of the victims reported, “I couldn’t breathe. I was suffocating. All that was left of me was a corpse.”

It should be noted that these women and girls and their families had no choice.

Some leaders of Ansar Dine and AQIM, including AL HASSAN, participated in the marriage negotiations, de facto exerting pressure on families and women via their presence.

More generally, women and girls lived in an entirely coercive environment. We should remember that the city was in a state of occupation. The population was helpless. The members of Ansar Dine and AQIM were continually strutting about with their weapons, never letting them out of their sight. In videos, that are even publicaly available, you can see the Islamic Police’s weapons; you can see weapons next to judges in the tribunal; you can see weapons everywhere, all the time. That includes heavy weapons mounted on pickup trucks driving round the city. One victim related that her attackers even kept their weapons with them when they were raping her.

The targeting and persecution of women was such that it became emblematic of the physical and moral violence inflicted on all residents of Timbuktu.

Clearly, Your Honours, the victimisation of residents, women and men, was significant. Despite security constraints and access problems on the ground, my team has been able to identify several hundred violent and criminal acts which the women and men of Timbuktu were subjected to. This will be amply demonstrated in the upcoming presentations.

Mr President, Your Honours,

The case before you against Al Hassan  is extremely serious.

Allow me at this stage to tell you what this case is not about: it is neither a case against a religion nor against Islam, nor, indeed, against any system of thought or of law. 

It is, quite simply, a criminal case. The case before you concerns a man, AL HASSAN, who we allege is individually criminally responsible for Rome Statute crimes committed against the population of the city and region of Timbuktu.

It is for this Court to say, and reach a decision that individuals such as Al Hassan cannot as members of armed groups, whatever they may be, occupy a city and aregion, and impose byway of prohibited violenceon an entire population diktats on the basis of an ideological and religious vision or the precepts they claim to apply.

The fact of the matter is that AL HASSAN, who was a member of Ansar Dine and the de facto chief of the Islamic Police, played an essential and undeniable role in the system of persecution established by the armed groups throughout the period of occupation of Timbuktu.

Make no mistake: Al Hassan was not a mere member of Ansar Dine. Because of his role and actions, he was a key figure within the armed groups and the system put in place to control the city.

AL HASSAN, the commissaire, was integral to the operation of the so called, Islamic Police throughout the events, bearing in mind that the Islamic Police in turn lay at the heart of the system of oppression and repression set up by Ansar Dine and AQIM in Timbuktu. The Islamic Police was omnipresent to impose the newly proclaimed rules and to brutalise people. We will aim to support this assertion in subsequent presentations.

More specifically, but without being exhaustive, Al Hassan

  • appointed agents and participated in patrols responsible for monitoring the population and enforcing the proclaimed rules;
  • arrested, interrogated and participated in the torture of suspects and other accused people to extract confessions;
  • referred some cases to the irregularly constituted tribunal, and made sure that the suspects appeared before that forum;
  • directly or indirectly participated in the organisation and imposition of violent punishments, often administered in public, in particular in Yobou Tao (otherwise known as “the Little Market”) and Sankoré Square;
  • personally carried out floggings or participated in their organisation, including on women.

All in all, he provided an essential contribution to the groups’ common plan to impose, in particular, their ideological and religious vision by any means.

Mr President, Your Honours,

The Prosecution has accumulated a wealth of evidence:

  • Police reports signed by AL HASSAN;
  • Tribunal judgements delivered in response to investigations carried out by AL HASSAN;
  • Statements made by victims and witnesses;
  • Video footage showing crimes being committed, including crimes by Al Hassan and his Islamic Police officers and other members of the armed groups; and
  • Reports prepared by, amongst others, expert graphologists and facial recognition experts.

This accumulation of evidence alone is more than adequate to demonstrate the substantial implication of Al Hassan in the crimes charged. Al Hassan is notorious.

As a matter of fact, during his interviews with representatives of my Office, Al Hassan, who was duly assisted by a lawyer, voluntarily made several admissions. He described and admitted his participation in various activities and acts underlying the alleged crimes. I would like to point out that, in doing so, he has essentially corroborated or confirmed some of the evidence presented to him by the Prosecution.

Mr President, Your Honours,

The oppression imposed on the inhabitants of Timbuktu during the period of occupation by the Ansar Dine and AQIM groups marks a dark period in the history of Mali and for the proud people of Timbuktu. The crimes are extremely serious. The residents of Timbuktu — men and women alike — were relentlessly tyrannised, humiliated and quite simply oppressed, on a daily basis, over a period of ten months. This was done on religious grounds and on gender-based grounds, by a violent armed groups imposing by sheer force their proclaimed rules and prohibitions.

Mr President, Your Honours,

During the trial of AL MAHDI, I stated that the prosecution of AL MAHDI was the first, but would not be the last, to come out of the situation in Mali.

The prosecution of Al Hassan will not be the last, either.

But it already provides a good, broad overview of the suffering and victimisation experienced by the civilian population of Timbuktu, and beyond, in the rest of Mali.

The Document Containing the Charges sets out the evidence firmly establishing the existence of substantial grounds to believe that Al Hassan is responsible for all the crimes listed therein.

The presentations that follow by my team will clarify the various aspects involved.

On the strength of the material before you, I request the Honourable Judges of this Chamber to confirm the charges against the suspect, which should pave the way for the trial, and make it possible, eventually, for the residents of Timbuktu to have justice done and see that it is being done, and that, through these criminal proceedings the truth will be established in a court of law.

In closing, Your Honours, allow me to state that there is no rationalising mass violence. No imperative would license the commission of crimes of this gravity against our fellow women and men.

I thank you, and will now hand over the continuation of our submission to my learned colleague, the senior trial lawyer in this case, Mr Gilles Dutertre. | OTP
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