## Facts

- During an armed conflict in Mali, an armed jihadi Salafist group controlled the Timbuktu region.
- Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (“Al Hassan”) was alleged to have been a senior member of the group’s “Islamic Police,” which enforced religious rules against civilians, often through violence and without fair trial guarantees.
- The Prosecutor charged Al Hassan with 13 counts of war crimes and crimes against humanity, including allegations of summary executions, torture, and sexual slavery, linked to conduct in Timbuktu during the period of occupation.
- As part of the crimes against humanity allegations, the Prosecution relied on the assertion that the charged crimes occurred during a widespread or systematic attack directed against a civilian population.
- The charging materials alleged that Al Hassan led or participated in multiple police actions against civilians and personally flogged at least three civilians.
- Before confirmation of charges, Al Hassan challenged admissibility under Article 17(1)(d) of the Rome Statute, arguing that the case was “not of sufficient gravity” to justify further action by the Court.
- Pre‑Trial Chamber I rejected the challenge, finding that the nature and scale of the alleged crimes, the manner of commission, and their effects on civilians were sufficiently serious for ICC proceedings.
- Al Hassan appealed, arguing that the Pre‑Trial Chamber (1) defined the “case” too broadly by using contextual elements beyond his own acts and (2) overstated his role, which he characterized as minor for gravity purposes.

## Issues

1. Whether the Pre‑Trial Chamber misapplied Article 17(1)(d) by defining the “case” too broadly when assessing gravity.
2. Whether, considering the allegations about Al Hassan’s level of participation and authority, the case was “not of sufficient gravity” and therefore inadmissible before the ICC.

## Decision

- The Appeals Chamber dismissed Al Hassan’s appeal.
- The Appeals Chamber affirmed the Pre‑Trial Chamber’s decision that the case was admissible and met the Article 17(1)(d) gravity requirement.
- The Appeals Chamber held that the Pre‑Trial Chamber did not commit a material error of law, fact, or procedure in how it framed the “case” or evaluated gravity based on the allegations and supporting material at the pre‑trial stage.

## Legal Principles

- Article 17(1)(d) requires a case-specific gravity assessment that considers factors such as the scale of the alleged crimes, their nature, the manner of commission, and their impact.
- Gravity is a threshold filter at the admissibility stage; it is not a final determination of guilt and does not require the same assessment as confirmation or trial.
- The “case” for gravity purposes may include the set of alleged crimes and the accused’s alleged role in the broader course of conduct for which responsibility is asserted; it is not limited to a narrow listing of isolated physical acts.
- On interlocutory appeal, the appellant must show an error of law, fact, or procedure that materially affected the decision; disagreement with the Pre‑Trial Chamber’s evaluation is not enough.
- A case against a single accused may satisfy gravity where the alleged crimes are serious and the accused is alleged to have played an important role in their commission or in the operation enabling them.

## Conclusion

The ICC Appeals Chamber upheld the admissibility of the case against Al Hassan, concluding that the Pre‑Trial Chamber correctly applied Article 17(1)(d) by assessing gravity in light of the alleged war crimes and crimes against humanity in Timbuktu, their alleged commission through coercive enforcement practices, and Al Hassan’s alleged senior role in the Islamic Police.


Prosecutor v. Al Hassan, Case No. ICC-01/12-01/18 OA (2020)