International Criminal Court to decide on inclusion of evidence allegedly tainted by torture in Al Hassan case

Article by Fair Trials

This month, the International Criminal Court’s (ICC) Trial Chamber X is expected to hand down an important decision on exclusion of evidence allegedly tainted by torture in The Prosecutor v. Al Hassan case. It is the first time the Court has been asked to rule on the standards of dealing with claims of torture in ICC investigations and whether the evidence obtained as a result should be admissible.

Background to the case

On 30 September 2019, Al Hassan was charged with crimes against humanity and war crimes, including torture, rape, and persecution under the Statute of the International Criminal Court. He 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. The trial opened on 14-15 July 2020 before Trial Chamber X.

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.

Fair Trials requested a leave to submit an amicus curiae brief, which was denied by the Chamber on December 2, 2020.

Regardless of the Court’s decision on the facts of particular claims, the ICC as a global criminal court must enforce international standards on proper investigation of allegations of torture and on admissibility of evidence tainted by torture. It is essential that the standards set by the upcoming decision in the Al Hassan case, meticulously disallow the use of evidence obtained by torture in order to safeguard the integrity of its proceedings. The Court s mandate is to prosecute the most heinous international crimes. Integrity and fairness of the proceedings in the ICC are therefore fundamental, and the Court must be seen as a legitimate institution possessing moral authority and acting with integrity, including with respect to evidence that it relies upon in its proceedings.

Commenting on the decision, Fair Trials Chief Executive Jago Russell said:

“The use of evidence tainted by torture is still an issue undermining the fairness and integrity of criminal proceedings around the world. Tomorrow s ruling has serious ramifications for the ICC and for the prevention of torture globally.”

“As a global criminal court, the ICC must set the highest legal standards when it comes to investigating allegations of torture and the admissibility of evidence that has been tainted by torture.”

“If there is evidence that torture has been used during investigations involving Mr Al Hassan, any materials connected with this mistreatment must be excluded by Chamber X.”

Al Hassan’s trial resumed on March 3, 2021. Read our full analysis of the implications of the ICC s ruling.

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.