Commentary: The Prosecutor v. Al Hassan and the exclusion of evidence obtained by torture
On May 17, 2021, the International Criminal Court s (ICC) Trial Chamber X handed down a decision on the exclusion of evidence allegedly obtained by torture in the case of The Prosecutor v. Al Hassan. The issues raised by the defence concerned the admissibility of statements made by the accused to the ICC prosecutors at the same time when the accused was detained in Mali and allegedly subject to torture or cruel and degrading treatment by Malian law enforcement authorities.
The decision presented a great opportunity for the Court to reinforce strict standards on the need to properly investigate any claims of torture and clear any doubts of its impact on the evidence presented in the proceedings before the ICC. Regrettably, the Court missed that opportunity resorting instead to technical legal arguments to avoid ruling on the allegations in substance and to examine whether interviews with torture victim, while he is still in the custody of the state agents that tortured him, can reasonably be considered untainted by its effects.
Background of the case
The trial against Al Hassan opened on the July 14, 2020, before Trial Chamber X. He stands accused of crimes against humanity and war crimes, including torture, rape, persecution under the Statute of the International Criminal Court (ICC or the Court) and is currently in custody at the ICC. The crimes were allegedly committed in the context of a widespread and systematic attack by armed groups Ansar Eddine/Al Qaeda in the Islamic Maghreb against the civilian population of Timbuktu.
During the proceedings, the defence argued that the prosecution evidence relies heavily on statements Mr. Al Hassan made while being held at an undisclosed location and at the Direction générale de la sécurité d’âtat (DGSE) in Mali, a facility infamous for human rights abuses. As a result, Al Hassan s defence petitioned the ICC to stay proceedings claiming that their client had been tortured while under DGSE s custody, and that the ICC s prosecutors had been informed but ignored the claims. The defence argued that Mr. Al Hassan was subjected to different forms of torture, including waterboarding, beatings, threats, mock executions, and other sensory forms of torture. The defence also showed independent medical expert reports and testimonies that corroborated that Mr. Al Hassan sustained physical and psychological injuries consistent with his allegations of torture.
On October 29, 2020, the Trial Chamber dismissed the defence request to terminate proceedings, and later on directed the parties to submit evidence and arguments pertaining to (i) the treatment of Mr Al Hassan while detained in Mali, prior to his transfer to the ICC, and its connection to the ICC proceedings and (ii) the admissibility of material tainted by connection to such treatment.
As a starting point Trial Chamber X (the Chamber) noted that under Article 69(4) of the ICC Statute, if a challenge is made to the admissibility of evidence, the burden rests with the party seeking to introduce the evidence. However, with regard to the exclusion of evidence under Article 69(7) of the ICC Statute, in line with the Court’s previous case law, the party bringing the motion under Article 69(7) of the Statute bears the burden to show that the criteria for the exclusion of evidence has been met. For this the Chamber adopted the threshold of proof used by the European Court of Human Rights (ECtHR) and required the defence to establish a real risk that the evidence has been obtained by torture or cruel, inhuman or degrading (CIDT).
The Chamber affirmed that the exclusion of evidence under Article 69(7) of the Statute can be triggered by human rights violations occurring outside the framework of the Statute and independently of the Court. In other words, evidence obtained by means of torture can be excluded also where such acts have been perpetrated by domestic or other authorities.
However, the Chamber established that the chapeau element of Article 69(7) required not only a breach of the Statute or internationally recognised human rights, but also a causal link between the violation and the gathering of the evidence. In the Chamber s view, the chapeau requirement of Article 69(7) is narrowly framed and does not call for findings as to whether there has been a breach of the Statute or internationally recognised human rights writ large (i.e. whether the defendant has been subject to torture or CIDT), but rather in the specific context of evidence gathering. Therefore, the Chamber had to determine whether it had been shown that the evidence in question was gathered, or its gathering was facilitated by, such a breach or violation.
To make that determination the Chamber looked at the interview process as a whole, examining the circumstances under which the interviews with defendant took place. As a starting point the Chamber emphasised the physical and substantive separation of ICC s process from the national procedures. In particular the Chamber detailed the Prosecution repeatedly emphasizing that it had no control over the detention conditions of the defendant and the confidential nature of his interviews, as well as the separate location in which the interviews were conducted. The Chamber also noted that the Prosecution had consistently inquired about the health and wellbeing of the defendant.
The Chamber notes in paragraph 53 of the decision that the Prosecution team explained to Mr Al Hassan that if he had any injury because of ill-treatment or if he was sick, the Prosecution would not proceed with an interview and would seek to ensure that he could receive treatment, and explained that if anything abnormal had happened and they were made aware of it, they would intervene and speak to the authorities. A separate section of the decision also details the steps taken in relation to the reports regarding the treatment of Al Hassan and the detention conditions noting that the Prosecution indicated to Mr Al Hassan that it would inform the relevant Malian authorities, [..] so that the latter could take any appropriate measures.
The Chamber also considered whether the defendant had been assisted by a counsel during the interview process, namely before the start of the interview sessions and during the breaks. The Chamber also contemplated whether defendant s rights, including the right to silence and privilege against self-incrimination, had been thoroughly explained to him in the interview process.
Consequently, the Chamber concluded that the Defence had not shown a real risk that the Statements were obtained by means of torture or CIDT and therefore it had failed to substantiate its arguments that the Statements were obtained by means of a violation of the Statute or internationally recognised human rights.
Fair Trials Commentary
The Court’s decision is the latest addition to the line of decisions by international and regional courts watering down the protections of the absolute right to be protected from torture or CIDT in the name of pursuing the prosecution of criminal cases. Rather than looking at the substance and the reality of effects of (potentially ongoing) torture and CIDT on a person s mental wellbeing and ability to make decisions on the exercise of their rights, the Court has chosen to avoid the issue altogether through an extremely narrow factual assessment of chapeau element under Article 69(7).
This approach is not new. The European Court of Human Rights (ECtHR) took a similar technical approach to evidence obtained through inhuman and degrading treatment in a landmark case in Gafgen v. Germany back in 2010. In that case the defendant made a confession under threats of causing considerable physical pain if he did not reveal the location of the victim (who was still believed to be alive at the time of the interrogation). As a result, the defendant made a confession and directed the police to the location of the body, where the body and additional evidence were collected. The ECtHR took a technical approach in separating the types of evidence (statements v. real evidence) and stages of proceedings to conclude that real evidence obtained from a violation of inhuman treatment can be admitted and stay in the case file and it can even be used to some extent in the proceedings as long as it does not have bearing on finding of guilt and sentencing. This decision was strongly criticised by dissenting judges who considered that the majority s compartmentalized way at looking and analysing the different stages of criminal proceedings separately failed to take into account the practical context in which criminal trials are conducted. In the opinion of dissenting judges, for a criminal trial to be fair, the adverse effects that flow from a breach of Article 3 must be eradicated from the proceedings entirely.
Unfortunately, the ICC has taken a similar technical and compartmentalized approach to the issues raised by the defence in Al Hassan. The gravity and seriousness of allegations of torture and inhuman treatment  should have warranted a broad rather than strictly technical approach in examining the links of alleged torture with the evidence obtained and used against the accused in the criminal proceedings before the ICC. It is difficult to see how without a proper investigation into the ill-treatment the defendant was allegedly subject to, the Chamber could assume that this treatment had no effect on the ICC interview process, especially where the defendant was returned to DGSE and back in control of his alleged torturers after every interview session.
The gathering of evidence in cases dealing with international crimes has its challenges and the cooperation of States Parties is key in that process. However, technical exceptions based on attributability or vague legal standards allowing the admission of evidence tainted by torture undermine the legitimacy and authority of the ICC. It also encourages questionable prosecutorial and investigative practices in States Parties and in the Office of the Prosecutor.
Even though there is a clear institutional separation between the Court and national authorities, such separation cannot circumvent the shared responsibility to guarantee the fundamental rights of detainees in an international context. The Court’s decision requiring a causal link between the violation and the gathering of evidence only creates an illusion of separability and allows the Court to omit a crucial explanation: how does it justify admitting allegedly tainted evidence without compromising the integrity of the proceedings at hand.
The Trial Chamber was presented with a remarkable opportunity to strengthen the law of evidence of the Court and set clear standards to protect the integrity and fairness of its proceedings. It was a missed opportunity to affirm clearly the absolute nature of the prohibition of torture and to state that due process guarantees cannot yield before acts of torture for the sake of prosecuting an individual even for the most serious crimes.
Article 69(7)(b) of the Statute embodies the responsibility the ICC carries in upholding the absolute prohibition of torture and CIDT. A proper and detailed examination of the merits of the claims of torture or CIDT and the effects it may have had on the defendants physical and mental well-being an ability to take informed and effective decisions about the exercise of his rights at the time of ICC interviews is the basic minimum this responsibility entails. Regrettably, instead of carrying out a proper detailed investigation into defendant s situation at the time of the interviews the Chamber refused to look beyond the walls of the ICC interview room.
Notes to Editors
Fair Trials has carried out comprehensive research on the rule requiring the exclusion of evidence made as a result of torture under international law (such as the UN Convention Against Torture) and its application in jurisdictions around the world.
International law prohibits reliance on torture evidence because i) it is involuntary, inherently unreliable and violates right to a fair trial; ii) to rely on such evidence undermines the rights of the torture victim; iii) it indirectly legitimizes torture and in so doing taints the justice system and iv) prohibiting reliance on the fruits of torture acts as a form of deterrence and prevention. This prohibition in principle extends to cruel, inhuman and degrading treatment and should cover derivative evidence. Almost all jurisdictions have some form of exclusionary rule applicable to torture evidence although its scope and modalities of application differ.
For more on the use of evidence obtained by torture, read Fair Trials report Tainted by Torture, Examining the Use of evidence obtained by torture.
 Prosecutor v. Al Hassan, Public redacted version of Decision on requests related to the submission into evidence of Mr Al Hassan s statements , No. ICC-01/12-01/18, 20 May 2021,para.36.
 Ibid., paras. 37-38.
 Ibid., para.40.
 Ibid., para.40
 Ibid., para. 45.
 Ibid., Section 3(a).
 Ibid., para. 53.
 Ibid., para. 67.
 Ibid., para. 54.
 G√§fgen v. Germany, application no. 22978/05, Grand Chamber judgment of 1 June 2010, para.180.
 Joint partly dissenting opinion of judges Rozakis, Tulkens, Jebens, Ziemele, Bianku and Power in G√§fgen v. Germany, paras. 3-10.
 Prosecutor v. Al Hassan, Public redacted version of Decision on requests related to the submission into evidence of Mr Al Hassan’s statements , No. ICC-01/12-01/18, 20 May 2021, para.44.