The case of The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (Al Hassan case) before the International Criminal Court (ICC) is remarkable for many reasons. As with all cases before the Court, the Al Hassan case brings with it a plethora of cultural norms, values, and practices that must be understood in order to deliberate the facts in context and deliver “justice.” A key challenge for the judges (and perhaps also a point of richness?) is to acquaint themselves with the cultural context of the situation before them, including the languages, beliefs, kinship structures, traditions, and symbols of the place. In the Al Hassan case, these include languages such as Arabic, Tamashek, and Songhai, as well as concepts related to (Sufi) Islam, Islamic law, libraries, Tuareg amulets, talisman, mosques, and mausoleums. To what extent are these cultural issues raised in the case as pleaded? To what extent should they be? How should the judges engage with them in their application of the Rome Statute? And to what extent is Islam itself on trial, as the Prosecution has oft denied (transcript 23 May 2023 p. 5)?
As I have argued before in an edited volume, culture plays an intrinsic role in the law and practice of the ICC. This is based on a broad definition of culture drawn from anthropological understandings that include modes of life, languages, values systems, traditions, and beliefs. The many cultural practices and symbols in the courtroom should be easily recognizable for lawyers, such as the robes, gavel, speech patterns, rituals of standing and sitting etc. While many rules or practices in the courtroom may appear as neutral or universal to some lawyers, it is crucial to challenge such assumptions and to reveal cultural particularities. Especially in an international courtroom, all parties and participants should remain sensitive to culture and cultural differences. While culture is often treated with some hesitation in international law—and can indeed be the source of violations at times—culture can also be a resource with multifaceted tools to advance the pursuit of criminal law and justice.
This broad anthropological definition of culture includes religion as well as religious normative ordering systems, namely law. This post focuses on Islam in the trial of Mr. Al Hassan. This is relevant given that the alleged crimes occurred in the Muslim-majority State of Mali, by the armed group Ansar Dine (“defenders of the faith”) and their Islamic police and court (hesbah), and victimized Muslims and Islamic objects. Mr. Al Hassan is also specifically charged with religious persecution. This is the ICC’s first contentious case at trial that directly raises Islam and Islamic law (the earlier case of Al Mahdi related to the same situation but the accused pleaded guilty – see discussion here). While the first case, it will certainly not be the last. Already before the ICC are situations in the Islamic contexts of Afghanistan, Sudan, Nigeria, Libya, and Palestine. This is likely the reason why Prosecutor Khan appointed Professor Intisar Rabb as an expert advisor on Islamic law to his Office—a welcome development. As such, this case could set a precedent to be used in these other situations.
The Importance of Religion
In their opening and closing statements in the Al Hassan case, the first (and last) issue the Prosecution addressed was to reiterate that neither religion nor Islam was on trial. They stated: “This case is in no way directed against Islam, nor is it directed against any religion or system of law or thought” (transcript 14 July 2020 p. 45). Despite this repeated claim, the case is very much about religion and specifically Islam, which is evident from the Prosecution’s own submissions. The Prosecution’s case is premised on the idea that the international crimes committed by Mr. Al Hassan were “shrouded in religion” (transcript 23 May 2023 p. 6) with “religious” rules imposed upon the Timbuktu population. These rules included that women had to veil, talisman and amulets could not be worn, cultural and religious festivals and events were prohibited, dancing and listening to music was prohibited, and alcohol and cigarettes were banned. The Prosecution alleged (transcript 14 July 2020 p. 49) that these rules “denied many customs, traditions and social practices of the inhabitants, which had characterized the lives of locals in Timbuktu, sometimes for generations.” In other words, the rules denied the inhabitants’ culture.
The Prosecution frequently argued that Ansar Dine sought to impose their “ideological” and “religious” visions on the public, especially on women (transcripts 14 July 2020 pp. 45, 51, 59, 61, 72; transcript 23 May 2023 p. 8). They also referred to the “religious ideology of Ansar Dine” (transcripts 14 July 2020 p. 61). The Prosecution did not, however, detail what they viewed to be ideology vis-a-vis religion, nor did they define religion or specifically Islam. It is unclear what, if any, involvement the Prosecution’s expert adviser, Professor Intisar Rabb, had in the case. While she was appointed only halfway through the case, there was no discernible change in the Prosecution’s closing argument in 2023 compared to its opening in 2020.
Islam and Islamic Law
To clarify, Islam is a dynamic and diverse body of norms, beliefs, and practices. It is a way of life and a code that regulates a believer’s relationship with God and others based on its ideals of right and wrong (See Onder Bakircioglu in Grey’s edited volume). These regulations are set out in the sources of Islam: pre-eminently the Qur’an, Hadith, Sunnah, fiqh, and Sharia’. Islamic law covers a broad scope including crimes, punishment, reparation, and also norms regarding what is today known as international law (siyar). Rather than being a uniform body of law, Islamic law takes “the form of a scholarly discourse with varying, equally legitimate principles, viewpoints and opinions on the basis of which legally-enforceable laws may be formulated” (See Shaheen Sardar Ali and Satwant Kaur Heer in Grey’s edited volume). As such, there is huge intra-plurality within Islam, which is far from monolithic and static. Within communities there can be conflicting fatwas (religious non-binding rulings) on the same topic, for example on the permissibility of smoking. Similarly, Muslim women’s practices of veiling differ greatly among individuals and communities around the world, with some choosing not to veil at all.
Compared to the Prosecution, Mr. Al Hassan’s defense team was much more engaged and specific about Islam and Islamic law. The Defense acknowledged in their opening pleadings that Islamic law is, “indeed, a complex system of law” (transcript 9 May 2022 p. 37). The Defense is credited for having retained expert advice on Islamic law from inter alia Professor Mohamed Badar. This no doubt facilitated the Defense’s ability to elaborate upon the Islamic context in Timbuktu, including the role of Sharia’ and the adoption of the Malekite tradition of Islam. The Defense addressed the types of crimes and punishments under Islamic law (including hudud punishments), the rules for marriage (including consent and dowry), and the role of the Ulema as religious leaders. See, for example, the arguments made by Dr Gerry during the defense’s closing statements (recording here from 48mins). These submissions demonstrate a nuanced understanding of Islam generally but also of the specificity of Islamic law and its interpretation, which is important given the inherent contestation therein.
The Al Hassan case related specifically to this contestation within Islam. It was agreed by both parties at trial that Islam has long been practiced by the people in Timbuktu. However, part of the conflict in the case was the differences between the religious practices of the public and those of Ansar Dine. The Prosecution argued in closing that the leader of Ansar Dine “considered the people of Timbuktu not to be true practicing Muslims” and quoted Mr. Al Hassan as calling them “infidels” (transcript 23 May 2023 pp. 12 and 60). Mr. Al Hassan was quoted as saying that his work for the police was “for the sake of Allah’s cause” (transcript 14 July 2020 p. 74). The Prosecution frequently described the Ansar Dine police and court as “Islamic” (adding a caveat here once: transcript 14 July 2020 p. 62). It is inaccurate, therefore, for the Prosecution to claim that “Islam is not on trial,” when, quite clearly, some practices derived from interpretations of Islam are. The Prosecution seem to want to have their cake and eat it too. Rather than paying lip-service to the idea that religion is not on trial, the Prosecution may have been better off engaging in a more direct but sophisticated argumentation regarding Islamic law.
The Court’s Judgment
As the case closed in May 2023 and the judges now deliberate, the question is what they will do with the arguments before them and whether or how to use the cultural elements? Firstly, in making their judgment, I suggest that the judges should engage with Islam and Islamic law, rather than side-stepping the issue (as done in the past). The judges should consider nuanced perspectives of Islam that recognize it not as monolithic or dichotomous (good/bad), but as a diverse and contested religion (like all). I advocate such engagement because—regardless of one’s view on what role religion should have regarding international law—it is necessary to recognize its relevance and influence. For many religious people (and by far most of the world’s population do identify as religious), religion is not an element or factor in their lives, but rather the matrix within which they view all things (Hassan p. 68), including their families, education, health, and ideas of right and wrong. Religion has long been influential for international law, albeit predominantly Christianity. On this basis, it would be inadvisable for the Court to avoid engaging with Islam in the Al Hassan case.
Secondly, I urge the ICC judges to engage with Islam and Islamic law in their judgment in order to explicitly demonstrate that Islam itself is not on trial but rather certain (mis)interpretations of it are. A giant of international criminal law, Cherif Bassiouni argued with Zoli and Khan that distinctions should be made between the interpretations of Islam so as to rebut those extremist (and criminal) practices of groups like Al Qaeda, Boko Haram, and Daesh (as addressed by scholars here and here). A note of caution, however: the judges should not endeavor to discern or apply Islamic law, as they are unlikely qualified to do so. Rather they should refer to and rely upon a range of noted experts in the field like, for example, Ahmed Al-Dawoody at the International Committee of the Red Cross.
Finally, I urge the ICC judges to consider the benefits of speaking to Muslims and the affected community in Mali more directly in their judgment. International law, and certainly the specificities of the Rome Statute, are foreign to most people around the world. By including references to Islamic principles and norms where relevant to their judgment, the judges could help make their decision both more accessible and meaningful to the affected community in Timbuktu and Mali. It could also work to further legitimize the ICC and buttress support for its judgments among Muslims more broadly. Many States with large Muslim populations are notably absent from the Rome Statute system, including Indonesia, India, Iran, Libya, Pakistan, Sudan, Syria, and Saudi Arabia. As scholars, including Badar and myself, have argued before, attracting such States furthers the ICC’s goal of universality and helps make international law more genuinely international.
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Dr Julie Fraser is a human rights lawyer and an Assistant Professor with the Netherlands Institute of Human Rights and the Montaigne Centre for Rule of Law at Utrecht University, the Netherlands.
Photo credit: Emilio Labrador via Flickr
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