ICC-01/12-01/18-505-Red2 06-02-2020 1/30 RH T Original: English No.: ICC-01/12-01/18 Date: 21 November 2019 Date of submission: 6 February 2020 TRIAL CHAMBER X Before: Judge Antoine Kesia-Mbe Mindua, Presiding Judge Judge Tomoko Akane Judge Kimberly Prost SITUATION IN THE REPUBLIC OF MALI IN THE CASE OF THE PROSECUTOR v. AL HASSAN AG ABDOUL AZIZ AG MOHAMED AG MAHMOUD URGENT PUBLIC With confidential, EX PARTE, Annexes A and B Only available to the Prosecution, VWU and the Detention Section Public redacted version of “the Prosecution’s urgent application to maintain restrictions on Mr AL HASSAN’s contacts and access to others whilst in detention”, 22 November 2019, ICC-01/12-01/18-505-Conf-Exp Source: Office of the Prosecutor ICC-01/12-01/18 1/30 21 November 2019 ICC-01/12-01/18-505-Red2 06-02-2020 2/30 RH T Document to be notified in accordance with regulation 31 of the Regulations of the Court to: The Office of the Prosecutor Counsel for the Defence Fatou Bensouda Melinda Taylor James Stewart Marie-Hélène Proulx Sarah Bafadhel Legal Representatives of the Victims Legal Representatives of the Applicants Seydou Doumbia Mayombo Kassongo Fidel Luvengika Nsita Unrepresented Victims Unrepresented Applicants (Participation/Reparation) The Office of Public Counsel for Victims The Office of Public Counsel for the Defence States’ Representatives Amicus Curiae REGISTRY Registrar Counsel Support Section Peter Lewis Victims and Witnesses Unit Detention Section Nigel Verrill Mr Paddy Craig Victims Participation and Reparations Other Section ICC-01/12-01/18 2/30 21 November 2019 ICC-01/12-01/18-505-Red2 06-02-2020 3/30 RH T Introduction 1. The Prosecution requests Trial Chamber X (“Chamber”) to maintain the restrictions on the non-privileged communications and contacts of Mr AL HASSAN (“Accused”) in detention, pursuant to regulations 101(2) and (3) of the Regulations of the Court (“Regulations”), and articles 57, 61(11), 64 and 68(1) of the Rome Statute (“Statute”). 2. More precisely, the Prosecution requests that when the Chamber is constituted, it orders, initially on an urgent interim basis, that all of the existing restrictions on the Accused’s non-privileged communications are maintained as previously ordered by the Single Judge of Pre-Trial Chamber I (“the Single Judge”) in his seven prior decisions (“Restrictions”). An interim order is necessary to ensure that there is no gap in continuity in applying the Restrictions. 3. The Prosecution further asks that, upon receipt of the Defence observations, when the Chamber renders its subsequent decision regarding the Restrictions, the Chamber applies, until at least completion of the proceedings, the current Restrictions and the following additional measures concerning the Accused’s list of non-privileged contacts: o Limit the list of authorised non-privileged contacts to only the Accused’s immediate family members (i.e. his parents, wives, and children); and o Exclude from the list individuals who are members of, affiliated with, or in close contact with any of the armed groups operating in northern Mali including Ansar Dine or Al-Qaeda in the Islamic Maghreb (“AQIM”). 4. There has been no change in circumstances since the Single Judge of Pre-Trial Chamber I (“PTC”) issued his decisions related to the Restrictions that warrant any lifting or reduction of the Restrictions, under article 60(3) or article 64 of the Statute or regulation 101(2) of the Regulations. 5. On the contrary, it is vital that the Restrictions remain in full force, and that, in the context of the upcoming trial and disclosure of the Prosecution witnesses’ identities, the Accused’s list of contacts be further restricted to only immediate family members because of the grave risks to victims and witnesses, to the preservation of evidence, integrity of the proceedings and manifestation of the truth if the Accused passes on information identifying witnesses to third parties. 6. These risks are indicated by, inter alia, the following factors: ICC-01/12-01/18 3/30 21 November 2019 ICC-01/12-01/18-505-Red2 06-02-2020 4/30 RH T o The security situation in the present case,, where Prosecution witnesses continue to face significant, life-threatening, risks if their identifying information is passed on to the armed groups to which the Accused belongs1 or is associated with. The Accused is a member of Ansar Dine,2 an organisation classified as terrorist,3 which is part of a coalition of ‘jihadist’ groups (“Groups”), including AQIM, under an umbrella organisation called the Jama’at Nusrat Al-Islam wal-Muslimin (“JNIM”).4 There is a risk that the Accused’s supporters amongst the Groups will target Prosecution witnesses. The Groups regularly kill individuals (reportedly by decapitation amongst other methods) and acknowledge the killings of those cooperating with local and international security forces as well as state institutions; o There is a risk that if the Accused’s contacts with third parties are not actively monitored, he may discuss or pass on information identifying Prosecution witnesses to his supporters, including members of the armed groups, with a view to harming or interfering with them. ; o . 7. In this context, the Accused’s list of contacts should remain restricted only to family members, and all contacts be actively monitored. In previous ICC cases, there have 1 The Prosecution considers that the Accused remains a member of Ansar Dine even if he is unable to be an active member whilst he is in detention. 2 Ansar Dine means ‘Defenders of Religion’ and it is an armed group founded by Iyad ag Ghaly. 3 See below, para. 46. 4 JNIM also means ‘Group to support Islam and Muslims’’. See Déclaration à la presse faite par le Conseil de sécurité sur l’attaque ayant visé la MINUSMA, SC/12810-PKO/636, 4 May 2017, ; Déclaration à la presse faite par le Conseil de sécurité a l’occasion de l’attentat terroriste perpétré contre la MINUSMA, SC/12837-PKO/644, 23 May 2017, . ICC-01/12-01/18 4/30 21 November 2019 ICC-01/12-01/18-505-Red2 06-02-2020 5/30 RH T been instances before active monitoring, where suspects or accused have passed on confidential information identifying Prosecution witnesses to their family, who in turn have passed that information to the suspects’ or accused’s supporters. Family members have also threatened Prosecution witnesses. , . 8. Although the Defence has indicated that the The Accused’s list of non-privileged contacts should exclude any individuals who are members of, affiliated with or in contact with the Groups, because of the significant risks they pose to Prosecution witnesses if their identifying information is revealed by the Accused. However, the Prosecution agrees that the Accused should be able to have contact with his immediate family . However, at minimum, active monitoring is essential. 9. Last, the Prosecution indicates that before the disclosure of the names of its witnesses, whose identities are currently redacted with approval of the Single Judge, in particular it may be making additional requests with the Trial Chamber for more stringent restrictions on the Accused’s contacts. Confidentiality 10. This Request is classified as confidential, ex parte, available only to the Prosecution , VWU and Detention Section, pursuant to regulation 23bis(1) and (2) of the 5 ICC-01/12-01/18 5/30 21 November 2019 ICC-01/12-01/18-505-Red2 06-02-2020 6/30 RH T Regulations as it includes a number of documents and decisions of the same classification. Moreover, this Request contains confidential information regarding . The Prosecution will file a subsequent redacted confidential version of the Request, accessible to the Defence. Request under regulation 37 11. Pursuant to regulation 37 of the Regulations, the Prosecution requests that the Trial Chamber grant an extension of the 20-page limit, of an additional eight pages. There are exceptional circumstances justifying the page limit extension. In particular, the Prosecution requires the additional pages to provide the Trial Chamber with: (a) the necessary background of the lengthy procedural history since 29 March 2018 (six pages in itself); (b) sufficient factual information about the risks posed to Prosecution witnesses if existing Restrictions are not maintained; and, (c) an analysis Background 12. During the period immediately before the arrest of the Accused and during the preliminary phase of the proceedings, the Prosecution and the Defence made several requests in relation to the Accused’s non-privileged communications. In total, the Pre- Trial Chamber issued seven decisions regarding restrictions on his contacts. 13. On 29 March 2018, the Prosecution urgently requested that .6 14. On the same day on 29 March 2018, the Single Judge .7 8 .9 15. On 31 March 2018, the Accused was surrendered to the Court. 16. On 5 April 2018, the Single Judge (“ ”). 6 . 7 8 9 d. ICC-01/12-01/18 6/30 21 November 2019 ICC-01/12-01/18-505-Red2 06-02-2020 7/30 RH T .10 In particular, the Single Judge : o ;11 o ;12 o ;13 and o .14 17. On 30 April 2018, the Single Judge 15 .16 .17 18. .18 19. On 22 May 2018, the Registrar ,19 .20 (“ ”). 10 . 11 . 12 . 13 . 14 . 15 . 16 . 17 . 18 19 . 20 . ICC-01/12-01/18 7/30 21 November 2019 ICC-01/12-01/18-505-Red2 06-02-2020 8/30 RH T .21 20. On 4 June 2018, the Prosecution (“ ”).22 21. On 14 June 2018, the Defence r ,23 (“ ”).24 . 22. On 20 June 2018, the Single Judge (“ ”) (“ ”) . 23. .25 26 .27 .28 .29 24.