By Susan Kendi
Dutch journalist Harald Doornbos testified before the International Criminal Court about photos he took and documents he collected in the historic town of Timbuktu in Mali soon after French and Mali soldiers had repulsed two extremist Islamic groups from the town seven years ago.
Doornbos described to the court on Tuesday, September 8, when and why he took the photos during a February 2013 trip to Timbuktu. He also explained the significance of the documents he collected. Doornbos also told the court about the chain of custody of the photos and documents between the time he got them and when he handed over the photos and documents to prosecution investigators.
The Dutch journalist was the first prosecution witness to testify in the trial of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud who has been charged for crimes he is alleged to have committed in Timbuktu between April 2012 and January 2013.
Al Hassan’s trial began on July 14 with the prosecution making their opening statement. The defence and lawyers for victims did not make opening statements in July, electing instead to do so when it is their turn to present their cases. The prosecution is scheduled to call 78 witnesses, according to a prosecution filing of February 28.
Between April 2012 and January 2013, Al Hassan was the leader of the Islamic police set up by Ansar Eddine and Al Qaeda in the Islamic Maghreb. In a footnote in their Trial Brief, the prosecution have explained they describe Al Hassan as the de facto commissaire of the Islamic police because he did not have a specific title. The prosecution have argued in the brief that Al Hassan was without question in charge of the Islamic police in Timbuktu between April 2012 and January 2013.
Al Hassan has been charged with 13 counts of war crimes and crimes against humanity he is alleged to have committed in his role as the leader of the Islamic police. The crimes he has been charged with include five counts of sexual and gender-based crimes and one count of destruction of eight historic and religious buildings and a door to a historically significant mosque.
This single war crime he has been charged with for the destruction of historic and religious buildings is similar to the one Ahmed Al Faqi Al Mahdi faced when he was on trial at the ICC between August and September 2016. Al Mahdi was a leader with the moral police in Timbuktu called Hesbah during the same period Al Hassan has been charged with committing crimes in Timbuktu. Al Mahdi pleaded guilty to a single count of war crimes and was sentenced to nine years imprisonment as part of a plea agreement he entered with the prosecution. Trial Chamber VIII heard testimony from three prosecution witnesses, verified the plea agreement and confirmed it in their judgment convicting Al Mahdi of a single war crime and sentenced him to nine years in prison. Al Mahdi is serving his sentence in Britain since the ICC does not have a prison of its own.
Al Hassan’s trial is the first one at the ICC to take place since the coronavirus pandemic hit. The three judges of Trial Chamber X Presiding Judge Antoine Kesia-Mbe Mindua and Judges Tomoko Akane and Kimberly Prost sat 1.5 meters apart in line with social distancing requirements. Each of them also had a glass in front them as in the row below them sat court officers.
The different legal teams also observed social distancing rules, with only one person seated per row. The prosecution had four lawyers in court, led by Senior Trial Lawyer Gilles Dutertre. The defence also had four lawyers in court, led by lead counsel Melinda Taylor. Two of the lawyers for victims were in court while another two followed the proceedings remotely. This was in accordance with the Covid-19 guidelines of the court that a maximum of 15 people should be in court.
Below are excerpts of Tuesday’s proceedings. First to question Doornbos was Dutertre, on behalf of the prosecution.
(The witness is shown a photograph of a former bank in Timbuktu that was used as a police station.)
Dutertre: When you entered this building was there anyone inside?
Doornbos: No, because it was closed.
Dutertre: Mr. Doornbos, why did you take this photograph in particular?
Doornbos: These days it is easy to click … to give an idea how the situation looked inside and how the documents were inside.
Dutertre: Your honour I would like to touch on chain on custody regarding this matter. Do you remember being questioned by members of prosecution after coming from Mali?
Doornbos: Yes I do.
Dutertre: Do you recall that those documents were put in a sealed bag?
Doornbos: Yes I do.
Dutertre: Do you remember those documents were sealed and you signed for them?
Doornbos: Yes I do.
Dutertre: Is this the photograph you collected?
(A photograph of an axe in a police station is displayed on the court’s monitors.)
Dutertre: Why did you take this picture?
Doornbos: There were rumours that there were destruction of holy sites … You would rather take the picture rather than regret later not taking the photograph.
(The witness is shown another picture.)
Lawyer Dutertre: What of this?
Doornbos: These I assumed are press cards for journalists who applied to enter the territory before the French and Malian authorities came … These are all bank pictures which couple of days were used as police buildings.
Dutertre: I have finished with the bank, I will visit the second place Hotel La Maison, which you described to be the place where the [Sharia] Court sat. Who did you enter hotel La Maison with?
Doornbos: This was two days after the bank, we got information from local people and they said here is the Sharia Court. We entered with my colleague who speaks Arabic, a fixer and his friend and buddy. We found it closed. We asked for the key and the manager came with the key and he opened. It was empty. We went to the first floor, where we found many documents in the cabinet. We found much more documents than (in) the bank.
Dutertre: Who took the pictures?
Doornbos: I took the pictures.
Dutertre: Is that the Hotel La Maison?
Doornbos: I believe it is.
Dutertre: Where did you take the documents from Hotel La Maison and the bank which acted as police station?
Doornbos: I put them in a bag and in my hotel room since I thought this might be a story.
Dutertre: Where did you save the photographs you took?
Doornbos: There were on my [Secure Digital] SD card out of the camera. Later on I made a copy of the files (and) put them on an external hard drive to keep them safe.
Dutertre: Did you leave Mali with the photographs and documents?
Doornbos: Yes, I took everything with me.
Dutertre: So where did you go when you came back from Mali?
Doornbos: I flew to Amsterdam. I published articles … I put them
on the Dutch television and was approached by the ICC who knew I have these.
Dutertre: Who was in custody of the photographs and documents until you gave them to the Office of the Prosecutor (OTP)?
Doornbos: I was in charge.
Dutertre: Did you alter these photographs and documents in any way?
Doornbos: No. Never.
Dutertre: Was a third party ever to alter them in any way?
Dutertre: How were the photographs organised?
Doornbos: 7 years ago. It was two folders. One was of the bank and the other was on the hotel.
When Dutertre concluded his questions, it was the turn of the lawyers for victims to question Doornbos. Whenever a lawyer for victims would like to question a prosecution witness, they have to apply to Trial Chamber X asking to question the witness and laying out their intended line of questioning. This according to Trial Chamber X’s May 6 directions on the conduct of proceedings.
On Tuesday, Judge Mindua said Mayombo Kassongo, one of the lawyers for victims, had applied to question Doornbos. Taylor objected to this application arguing Doornbos’ testimony was outside the scope of the charges against her client and the proposed questions would lead Doornbos to speculate since he was not in Timbuktu during the period when crimes were alleged to have been committed. The judges left the court to consider the issue. They returned after a few minutes and Judge Mindua said Trial Chamber X would allow Kassongo to question Doornbos about his conversations with Timbuktu residents.
Kassongo: [Addressing the witness] Could you summarize their (Timbuktu residents Doornbos spoke with) feelings?
Doornbos: By far, most of the people that I spoke to in Timbuktu, and this is of course post what they would call ‘liberation’, they really had the feeling they were liberated, that the town was liberated by the French army and Malian army. Everybody was very happy that the jihadists left … I am not a Mali expert.
When Kassongo concluded his questions, Taylor cross-examined Doornbos.
Taylor: Where you able to travel with the military to Timbuktu?
Doornbos: No … But there were road blocks. They would escort us for a couple of kilometres.
Taylor: Mr. Doornbos, I only need a yes or no.
Doornbos: No … A courtroom is abstract when I live in a very concrete world.
Taylor: You had never been in Mali before. How did you organise for a hotel?
Doornbos: We asked the first person on the road.
Taylor: Were there other journalists staying there?
Taylor: Were there any Arabic speaking journalists?
Doornbos: Yes, there were some.
Taylor: Have you ever referred to your journalism as fuck-it journalism?
Doornbos: Yes, in Bosnia.
Taylor: Is this the same as cowboy journalism?
Doornbos’ testimony came to a close on Tuesday. Other prosecution witnesses were scheduled to testify for the rest of the week.
Al Hassan ended up on trial at the ICC after Mali’s authorities surrendered him to the ICC on March 31, 2018. This was four days after the ICC issued an arrest warrant for Al Hassan. More than a year after his arrest, the prosecution filed its Document Containing Charges against Al Hassan on May 11, 2019. The document, which laid out the prosecution’s case against Al Hassan, is only available in French. Pre-Trial Chamber I held hearings to determine whether to confirm the charges against Al Hassan in July 2019. Pre-Trial Chamber I confirmed 13 counts of war crimes and crimes against humanity against Al Hassan in its September 30, 2019 decision. Pre-Trial Chamber I amended that decision on April 23 to partially allow the prosecution to include additional facts to the charges the chamber had already confirmed against Al Hassan.
The full transcript of Tuesday’s hearing is available here.