On 22 December 2008, Captain Moussa Dadis Camara took power in a bloodless coup, which ended fifty years of rule characterised by undemocratic governance and the systematic violation of human rights under two successive presidents, Ahmed Sékou Touré (1958 to 1984) and Lansana Condé (1984 to 2008). Despite his promise to introduce democratic reforms, Dadis Camara instead entrenched military rule, committed widespread human rights violations, and failed to hold long-promised elections.
On 28 September 2009, tens of thousands of oppositions supporters gathered in Conakry Stadium: at 11:30 am, several hundred members of the security forces entered the stadium and opened fire on the crowd, killing at least 156 people and injuring or sexually assaulting more than 1400 others.1 In the days that followed, security forces continued to commit rape, murder and looting in neighbourhoods primarily populated by opposition supporters. The Guinean authorities and security forces engaged in a cover-up of the massacre, destroying evidence and removing bodies.2
An International Commission of Inquiry mandated by the UN Secretary General concluded that crimes against humanity were committed in widespread and systematic attacks by state security forces against the civilian population on September 28 and in the following days. The Commission confirmed that at least 156 persons were killed, hundreds of persons were tortured or suffered other inhumane treatment, and at least 109 women subjected to rape and other acts of sexual violence, including mutilation and sexual slavery. A parallel civil society investigation led by Human Rights Watch concluded that the crimes were not the actions of a rogue group of soldiers but an organised and coordinated attack on civilians.3
In October 2009, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) opened a preliminary examination into alleged atrocity crimes committed in the context of the September 2009 Conakry Stadium massacre, “including crimes against humanity of murder; imprisonment or other severe deprivation of liberty; torture; rape and other forms of sexual violence; persecution; and enforced disappearances. The preliminary examination also focuses on the existence and genuineness of national proceedings in relation to these crimes.”
The country’s first free and fair presidential elections, which were held in December 2010 while Dadis Camara was outside the country recovering from an assassination attempt, were won by the country’s current leader, Alpha Condé. Although he pledged to implement democratisation and strengthen the rule of law, his tenure has been marred by accusations of corruption and political violence, which continues to be perpetrated during regional and national elections.4 In 2020, Condé secured a third term as president, following a constitutional referendum boycotted by the opposition.5
Citations & References
1: United Nations Security Council (2009) “Report of the International Commission of Inquiry mandated to establish the facts and circumstance of the events of 28 September 2009 in Guinea” (S/2009/693), December 2009
3: Human Rights Watch (2009) “Bloody Monday: The September 28 Massacre and Rapes by Security Forces in Guinea”
4: Human Rights Watch (2020) “Guinea: Violence During Referendum, Investigate Abuses, Rein in Security Forces“
Commentary & Reports
In October 2009 the UN Secretary General established an international commission of inquiry into the events of 28 September 2009. The Report concluded that the Guinean security forces committed crimes against humanity during the attack and in the days that followed.
Accountability in Guinea
Priorities and challenges for strengthening accountability for international crimes in Guinea
Guinea deposits its instrument of ratification to the Rome Statute on 14 July 2003, and giving the ICC has jurisdiction over Rome Statute crimes committed on the territory of Guinea or by Guinean nationals from 1 October 2003 onwards.
Conté, a soldier, led Guinea from 1984 after taking over in a coup d'Etat until his death.
Hours after the announcement that Lansana Conté has died, Captain Moussa Dadis Camara read a statement on behalf of the Conseil National de la Démocratie et du Développement (CNDD) announcing that the constitution had been dissolved. A day later, Captain Camara was announced the President of the CNDD and with Camara promising "credible and transparent presidential elections by the end of December 2010." Sékouba Konaté becomes the vice president and minister of defense.
More than 150 peaceful protesters are massacred, hundreds more wounded, and more than a hundred women are victims of rape and other forms of sexual violence by security forces during an opposition rally at a stadium in Conakry. Security forces continue to commit abuses for several days in neighbourhoods largely inhabited by opposition supporters.
Guinea's then-minister of foreign affairs travels one week later to The Hague to meet with the ICC Office of the Prosecutor, where he tells ICC Deputy Prosecutor Fatou Bensouda that Guinea’s justice system is “able and willing” to handle the investigation and prosecution of the stadium crimes domestically
An international commission of inquiry, proposed by the African Union and the Economic Community of West African States (ECOWAS), is established by UN Secretary-General Ban Ki-moon.
Moussa Dadis Camara is shot by Lieutenant Abubakar "Toumba" Diakite. Diakite commanded Guinea’s presidential guard, also known as the Red Berets. In an interview with Radio France International he shot Camara on 3 December because the junta leader wanted him to take the blame for a massacre of pro-democracy demonstrators.
The commission concludes that at least 156 people were killed or had disappeared, and at least 109 women were victims of rape and other forms of sexual violence.
The National Independent Commission of Inquiry established by the Guinean authorities concludes that murders, rapes, and forced disappearances have been committed.
Since its first visit in 2010, the ICC has conducted regular visits to Guinea—averaging roughly twice a year—to assess progress in the investigation and press for further advances.
Panel quickly charge Abubakar “Toumba” Diakité, Guinea’s self-proclaimed president Moussa Dadis Camara's aide-de-camp, for his alleged role in crimes committed in the stadium massacre and rapes.
The International Federation for Human Rights and the Guinean Organization for the Defense of Human Rights and the Citizen (OGDH) L'Organisation Guinéenne de Défense des Droits de l'Homme et du Citoyen initiate a partie civile action on behalf of victims’ associations and dozens of individual victims of the 28 September 2009 crimes.
Diallo, who was Prime Minister of Guinea from 2004 to 2006, took the lead after the first round of delayed elections.
After a delayed run-off vote, long-time opposition leader Alpha Condé wins the election beating Diallo in the second round.
Two leading religious figures head the commission, Elhadj Mamadou Saliou Camara, the Grand Imam of Conakry Mosque, and Monseigneur Vincent Coulibaly, Archbishop of Conakry. The commission issues its report in 2016, resulting in amendments to Law on National Reconciliation. Civil society groups express concern that little progress has been made towards implementing the foreseen reconciliation process in the period since.
Moussa Tiégboro Camara, minister in charge of fighting drug trafficking and organised crime, is charged for his alleged role in crimes committed during the stadium massacre and rapes. Investigations were essentially suspended, however, from May to September 2012, due to serious shortcomings in resources available to the panel of investigative judges.
The Governor of Conakry, Commander Sékou Recso Camara, and General Nouhou Thiam, Chef of the General Staff of the Armed Forces, were indicted for ‘acts of torture’ committed in October 2010 under the transitional government of General Sékouba Konaté. Governor Camara was dismissed from his post the following month. Though not directly related to the 2009 Stadium massacre, the indictment of two high-level military and political actors for grave crimes committed under the former regime was an important step towards ending impunity. The trial has been delayed multiple times, with the most recent postponement in 2018.
A Guinean gendarme was arrested and charged with rape in connection with the September 2009 stadium massacre and its aftermath. As the first indictment of an accused perpetrator of sexual violence during those events, the charging of the unnamed officer was a significant step in the judicial process. However, in a 2019 statement, the Office of the UN Special Representative on Sexual Violence in Conflict emphasised that perpetrators of sexual violence committed during the 2009 attacks still had not faced justice.
Lt. Col. Claude “Coplan” Pivi, Minister for Presidential Security and leader of the ‘red beret’ presidential guard, was charged for his alleged role in the crimes committed in the stadium in September 2009. Pivi was not put on leave from his government post despite the charges against him.
The appointment of Justice Minister Cheick Sako is widely credited with helping to energise progress in the investigation. Sako’s appointment leads to an increase in the number of security force members questioned.
The former president announced his candidacy despite being under investigation for crimes against humanity committed during the 2009 stadium massacre. At the time of the announcement, Guinean courts had issued an indictment requesting that Burkina Faso extricate Camara back to Guinea.
Accusations of torture against protesters detained at the military camp Koundara in the weeks following the 2009 stadium massacre lead to the arrest and charging of an ex-soldier. The case is significant as the first pertaining to crimes committed in the aftermath of September 28 against "dozens" of persons illegally detained and tortured in the detention centres and barracks.
Former President Camara is questioned in Burkina Faso, where he remains in exile, and charged by the Guinean judges for his alleged role in crimes committed in the stadium.
As with their counterparts established in Togo and Burundi, their aim was to allow the Guinean population to talk about which mechanisms of the transitional justice system should be implemented with a view to national reconciliation. Over 9,000 people are consulted. It is determined that the needs expressed as a priority by the Guineans questions related to the right to historic truth and the right to justice, along with a reparations strategy, in particular through the state’s official recognition of the crimes perpetrated under the different regimes in power in Guinea since 1958.
Crimes against humanity, genocide, persecution and torture now feature in the Guinean Penal Code, in which the prescribed penalty for the most serious crimes is life in prison. The new criminal code also eliminates the death penalty and explicitly outlaws torture for the first time. However, human rights watchdogs note that the criminal code categorised a number of acts that fall within the international definition of torture as merely “inhuman and cruel,” a category that does not carry any explicit penalties in the code. In practice, security forces continue to engage in torture and other forms of physical violence with apparent impunity.
Diakité, on the run since December 2009, is arrested in Senegal. Toumba commanded Guinea’s presidential guard, also known as the Red Berets, at the time of the 2009 crimes.
He is incarcerated at Conakry prison facility and efforts are made to ensure that he has a clean and secure individual cell that complied with international detention standards.
A panel of investigative judges questions Diakité at the end of March 2017.
Justice minister Cheick Sako announces that the investigation has been referred for trial in Conakry. More than a dozen suspects are charged, and Diakité is in Guinea’s custody after Senegal extradited him. In the course of its investigation, the panel of judges took a number of concrete and progressive steps to identify the most responsible perpetrators of the crimes committed. These steps include the interrogation and indictment of high-ranking officials, in Conakry and abroad; the interview of key witnesses, including government officials and opposition leaders; and the hearing of over 400 victims, of which approximately 50 are victims of sexual violence. In its closing orders decision, the panel of judges refers 13 of the 15 individuals indicted throughout the investigation to the Tribunal of Dixinn, the territorially competent jurisdiction in Conakry.
Minister Sako appoints a steering committee to organise the trial. Initially supposed to meet once a week, the committee only meets sporadically and has not yet set a trial date, raising concerns about the lack of progress.
Mohamed Lamine Fofana takes over as justice minister after Sako resigns. Hopes are pinned on him and President Conde to ensure the trial date is set and that the victims have the chance to see justice done.
Guinea’s Supreme Court dismissed appeals by civil parties petitioning against the outcome of the investigation into the 2009 stadium massacre, an investigation initially closed two years before, in 2017. The appellant civil parties issued their complaint after charges were dropped against two prominent suspects and the initial charge of crimes against humanity was requalified to charges of ordinary crimes. The Supreme Court’s decision cannot be appealed, officially closing the investigation into crimes committed in relation to the September 2009 stadium attack and removing the final judicial obstacle to opening the long-awaited trial of those most responsible.
During a visit to Conakry by representatives from the Office of the Prosecutor of the International Criminal Court, Justice Minister Fofana announces that the Diakité trial will take place at the latest in June 2020. Challenges remain, including the construction or adaptation of a courtroom to host the trial, the appointment and training of magistrates, and the setting-up of a communication and security plan for all the actors involved in the proceedings.
The new constitution reset presidential term limits (normally two terms), allowing president Alpha Condé to run for a third term.
A week before the 2020 presidential election, International Criminal Court Prosecutor Fatou Bensouda issues a statement noting reports of pre-election violence and growing ethnic tensions in Guinea. She warns that "anyone who commits, orders, incites, encourages or contributes, in any other way, to the commission of Rome Statute crimes, is liable to prosecution either by Guinean courts or by the ICC." She also reminds the authorities that if trials for the September 2009 stadium massacre fail to materialise, then it will be her obligation to open an investigation.
In February 2010, five months after the September 28 stadium massacre, the Minister of Justice appointed a panel of judges to investigate crimes committed during and in the immediate aftermath of the attack. Working under difficult conditions and with minimal resources, the investigation made slow but significant progress, finally completing its work seven years later, in December 2017. The investigation led to a number of charges and arrests, in some cases involving high-ranking officials, such as sitting minister, Moussa Tiégboro Camara, the Governor of Conakry, Sékou Resco Camara, and former president, Captain Moussa Dadis Camara.
Despite these significant steps, Guinea has not begun the long-promised trials of those most responsible for the September 2009 crimes. Human Rights Watch has followed the process closely and recorded numerous barriers to initiating the trials, including an insecure political landscape, a lack of judicial independence, and limited political support for prosecution. Various legal and institutional challenges have also delayed the trial. The insufficient protection of rights of the accused and the lack of witness and victim protection are especially critical concerns.6
Guinea: justice delayed, justice denied?
Olivier Kambala, Peace and Development Adviser in the Office of the United Nations Resident Coordinator in Madagascar, discusses the investigation and prosecution of crimes committed during the attacks of 28 September 2009 at the Conakry stadium. Kambala discusses the progress of investigations in Guinea and the role of the International Criminal Court. Kambala expresses concern about the lack of political will, as well as legal and financial difficulties that have delayed the trial, now scheduled to take place in 2021.
Does Guinea have national capacity to hold perpetrators accountable?
Completing investigations into the stadium massacre marked a major milestone along the path towards accountability, given the chronic lack of support and resources that the panel of judges faced during their mandate. The judges received minimal salaries, had insufficient security details, and lacked basic supplies such as computers and even pens. Despite these conditions, the panel heard testimony from more than 450 victims and witnesses.
If and when launched, the trials of those most responsible for the September 28 massacre will be complex, lengthy and highly sensitive. This presents numerous challenges to a judicial system that continues to suffer from structural weaknesses after decades of poor governance. The high profiles of the accused, combined with insufficient legal and institutional protections for witnesses and victims, pose significant risks to both defendants and those who may testify before the courts. Considerable logistical and operational planning is also needed well in advance, if the trial is to proceed in a timely and credible manner.7 The court will require a strategy for managing the large number of victims seeking to participate and the anticipated high degree of media interest and public scrutiny.
The challenge of organising trials for those most responsible for the alleged crimes committed on 28 September 2009 has harshly highlighted wider shortfalls and weaknesses ailing Guinea’s judicial and security services. Chronic underfunding has led to inadequate training of police, and contributed to high levels of corruption in the country.8 Although some improvements were made since the end of military rule, the independence of the courts is still in question. The ruling party has intensified its crackdown on opposition groups in recent years, and in some instances has leveraged the judicial system against members of the political opposition.9
International Criminal Justice in West Africa
Roland Adjovi, International Law Advisor for the Global Maritime Crime Programme in West Africa at UNODC, analyses the relationship between national, regional and international judicial mechanisms and their application in West Africa. He also reviews various legal instruments, tools and mechanisms, such as the Malabo Protocol, the African Court on Human and Peoples’ Rights, the International Criminal Court and hybrid courts.
Citations & References
7: FIDH (2017) “Justice, Reconciliation and Legislative Reform: Three Priorities for Rule of Law in Guinea” No. 690a
8: LandInfo (2011) “Guinée: La police et le système judiciaire”
9: VOA/AFP (2019) “Crise politique meurtrière: des clés pour comprendre”
Commentary & Reports
In this report, FIDH documents progress made on strengthening rule of law in Guinea. It expresses concerns over the complexity of the planned trial and the enduring weaknesses in the justice sector. The report finds that the Guinean government must urgently act on preparations, if the trial is to go forward in a timely and credible matter.
LandInfo “Guinée: La police et le système judiciaire” (2011)
This report reviews the structure, capacities and shortfalls of the Guinean police and judiciary. It determines that the justice system is slow, chronically underfinanced and lacks independence. Corruption has undermined the legitimacy of the judicial sector, the report finds, often allowing the rich to live above the law.
Human Rights Watch “Waiting for Justice” (2012)
The report documents the obstacles that contributed to impeding the progress of the investigative commission, pointing to political, institutional and operational challenges.
Establishing a legal framework for prosecuting international crimes in domestic courts
Can perpetrators be held to account in Guinea?
To the disappointment of victims’ groups, the panel of three domestic judges leading the seven-year investigation into the September 28 stadium massacre and its aftermath, reclassified charges of ‘crimes against humanity’ as ‘ordinary crimes’ when issuing their final report. In explaining their decision, the judges note that Guinea only acquired statutory jurisdiction to prosecute international crimes in 2016. Hence, in 2010, when the accused were indicted for the crimes of September 2009, the Prosecutor General to the Court of Appeal did not include crimes against humanity.
Although removing the charge of crimes against humanity was challenged by victims’ groups, in June 2019 the Supreme Court dismissed the plea in a decision that cannot be taken on appeal. This ruling was handed down, despite the United Nations investigation’s description of the massacre as a crime against humanity and the OTP’s ongoing preliminary examination dating from October 2009.
Commentary & Reports
Diawo Barry “Guinée: la Cour suprême clôt enquête sur les massacre du 28 septembre 2009, une étape de plus vers l’ouverture du procès” (jeune afrique: 26 June 2019)
In a decision that cannot be appealed, Guinea’s Supreme Court finally closed investigations into the September 28 Stadium massacre in June 2019. Although investigations finished in 2017, the process was reopened by civil parties contesting the requalification of crimes against humanity to ordinary crimes.
Diawo Barry “Massacre du 28 septembre 2009 en Guinée : deux officiers soupçonnés bénéficient d’un non-lieu” (jeune afrique: 12 January 2018)
When the panel of investigating judges finished their work in December 2017, conditions were met for a trial to open in Dixinn, outside Conakry. Civil parties were not, however, satisfied with the outcome of the investigation. Charges against two prominent suspects were dropped, and the charge of ‘crimes against humanity’ was ultimately changed to a charge of ‘ordinary crimes’.
Guinea has made slow yet notable efforts towards putting those most responsible for the September 28 stadium massacre on trial, going as far as indicting sitting senior officials and high-ranking members of the former government. This slow but steady progress has often led prominent international observers to characterise Guinea as a context where significant political will for criminal prosecutions of international crimes exists but is undermined by a lack of resources and capacity.10
After a decade of delays, many of those same observers now worry that the slow pace of investigations and preparations for the trial are better explained by the government’s reluctance to follow through on its promise of prosecutions, and moreover that this lack of political will is being masked by the appearance of ongoing cooperation with the ICC Prosecutor’s office.11 This concern has heightened in recent years in light of the sitting government’s own involvement in numerous human rights violations during increasingly frequent episodes of electoral violence. The Condé regime’s role in election-related human rights violations may have dampened its initially professed willingness to bring to trial individuals accused of crimes committed by the previous regime.12
Commentary & Reports
The report documents recent crackdowns on political opposition by security forces, leading to the death of at least eight people during 2020, including two children. At least forty others were forcibly ‘disappeared’. The report condemns continued impunity for these human rights violations and expresses concern that impunity is a driving force behind the violence.
In a process that appeared politically motivated, eight opposition leaders stood trial for their role in leading demonstrations against President Condé’s efforts to secure a third term. The demonstrations turned deadly when security services used excessive force against demonstrators. The case comes in the wake of increasingly harsh crackdowns on opposition protests over recent years.
Impunity and its consequences
The Guinean government has regularly pledged itself to ensuring accountability for the grave crimes committed in September 2009, yet impunity remains the norm for human rights violations committed during more recent episodes of electoral violence or crackdowns on political demonstrations.13 In 2020, the Guinean authorities harassed, intimidated and arbitrarily arrested opposition members and human rights defenders with impunity, following the frequent episodes of excessive use of force against protestors by gendarmes and police.14
Human rights monitors contend that a culture of impunity for the perpetrators of human rights violations is a driving force behind worsening cycles of political violence surrounding Guinean elections in recent years. In light of these developments, national groups and international observers increasingly worry that a lack of political will for accountability, rather than operational or financial issues, is the primary source of ongoing delays in putting those most responsible for the September 2009 crimes on trial.15
Commentary & Reports
Ten years after the transition to democracy, impunity largely prevails in Guinea where security forces are implicated in crimes. The completion of a credible investigation into September 2009 crimes raised hopes for justice, but eleven years is ample time to prepare a trial of this scale and as yet no trial has opened. Fears are mounting amongst victims and civil society groups that Guinea ultimately lacks the political will to move forward with prosecutions.
Astrid Chitou “Elusive Justice for Guinea Leaves Open Wounds” (justiceinfo.net: 13 November 2019)
The article offers insights into the lives of victims and their families. The author highlights that their suffering is not merely the result of ongoing impunity: the victims interviewed explain how their lives were forever changed by debilitating injury and the loss of family breadwinners. There is a continuum, the author argues, between the long wait for justice for the Stadium Massacre and ongoing impunity for death and injury suffered during political protests in the years since.
FIDH “Guinée: Le temps de la justice?” (2015)
This report documents progress on national investigations. The authors contend that a continuum exists between ongoing impunity for September 2009 crimes and repeating cycles of electoral violence.
Cellou Dalien Diallo “Guinea: Downfall of Democracy An Interview with Former Prime Minister” (Frieheit.org: 17 April 2020)
This interview with Guinea’s former prime minister offers an analysis of why impunity remains for grave crimes committed by the last regime. Referring to recent political developments such as the constitutional referendum, the former prime minister argues that Guinea has the legal foundation to ensure justice but lacks the political will.
In the ten years since October 2009, when the OTP opened its preliminary examination into international crimes committed on and after 28 September 2009, it has adopted a strategy of combining active encouragement of domestic investigations with close scrutiny of the country’s progress towards prosecutions. The Guinean government has shown itself open to these engagements and has actively cooperated with the ICC. Since taking power in 2010, the Condé administration has made a concerted effort to improve Guinea’s international reputation. Avoiding an ICC investigation is an important part of these efforts to improve Guinea’s image as a rights-respecting, democratic nation.16
“Positive complementarity” is a term used by the OTP to characterise the ICC’s approach towards its preliminary examination in Guinea.17 The term refers to a strategy of active engagement by the Court in helping a state fulfil its Rome Statute obligations, whereby states and the ICC are seen as partners who share the common goal of and responsibility for ending impunity for international crimes.18 In Guinea, the Prosecutor’s office has supported domestic investigations through regular visits, benchmarking steps in the investigation, and building alliances with national institutions. Civil society groups have credited the ICC approach with slowly pushing national investigations forward through a combination of assistance and pressure.19
The ICC Prosecutor’s preliminary examination and targeted support for justice have had a notable impact, marking a significant achievement for the OTP, which could serve as a model approach for positive complementarity henceforth.20 That said, despite measurable progress towards domestic justice, the trial itself has not yet opened, more than a decade after investigations started and three years after they finished. In this regard, the Guinean example may also signal a risk entailed in the ‘positive complementarity’ approach, in that close cooperation with the OTP could, under some circumstances, facilitate delays, by masking government reluctance to follow through with domestic prosecutions, behind the legitimacy gained from close engagement with the ICC.21
Citations & References
16: Human Rights Watch (2018) “Pressure Point: The ICC’s Impact on National Justice”.
17: ICC Office of the Prosecutor (2020) “Report on Preliminary Examination Activities”, ICC.
18: Will Colish (2013) “The ICC in Guinea: A Case Study of Complementarity”, Révue Quebecoise de droit international.
19: Human Rights Watch (2018) “Pressure Point: The ICC’s Impact on National Justice”.
21: Nour Saadi (2017) “La volonté politique et la capacité national : Le massacre du 28 septembre et la Cour pénale international”, CHRLP Working Paper Series Vol. 5 no. 1.
Commentary & Reports
Will Colish “The International Criminal Court in Guinea: A Case Study of Complementarity” (Révue Quebecoise de droit international: 2013)
Colish describes the Guinea case as a combination of strong willingness and weak capacity. This combination, Colish contends, makes it an ideal case to analyse the activities and impacts of a ’positive complementarity’ approach.
Human Rights Watch “Pressure Point: The ICC’s Impact on National Justice” (HRW: 2018)
The report includes Guinea among a series of case studies analysing the impacts of ICC-led global interventions on national level justice processes. The Guinea case illustrates how close engagement with the ICC helped create and reinforce expectations that the domestic judiciary would pursue accountability for the September 28 massacre.
Nour Saadi “La volonté politique et la capacité national : Le massacre du 28 septembre et la Cour pénale international” (CHRLP Working Paper Series Vol. 5 n. 1 2017)
The ongoing failure to open a domestic trial for the September 28 massacre highlights a potential risk in the ICC’s ‘positive complementarity’ approach. If, in the end, justice is indefinitely postponed in Guinea, the case could be seen as an example of this approach ultimately contributing to inaction in certain circumstances. Such an outcome would hurt the credibility of the ICC Prosecutor’s office in similar contexts going forward.
Prosecuting sexual violence
At least 109 victims of rape, gang rape and sexual slavery are among the victims of the September 2009 stadium massacre and its aftermath. The Rome Statute provides a more developed articulation of gender justice than does any prior instrument of international criminal law. There is, however, a disconnect between gender justice provisions detailed in the Rome Statute and the central place of the complementarity principle in that same statute. In essence, the complementarity principle establishes that the ICC can only investigate and prosecute international crimes where domestic actors and judicial institutions are not doing so or are unable or unwilling to do so.
Yet gender biases underpin most domestic legal and judicial systems. For the ICC’s more developed articulation of gender justice to be exercised within the complementarity regime, an assessment of discriminatory or biased practices on issues related to gender in domestic courts and legislation would need to be included within the Prosecutor’s wider assessment of the admissibility of ICC jurisdiction — something not currently done on a formalised basis.22 If and when the trial of those most responsible for the September 28 massacre goes forward, inattention to gender bias in the national judicial system will help preserve impunity for perpetrators of sexual violence and risk leaving this group of victims unrecognised.
Citations & References
Commentary & Reports
Chappell et al “The Gender Shadow of Complementarity: Lessons from the ICC Preliminary Examinations in Guinea & Colombia” (International Journal of Transitional Justice: 2013)
This article argues that there is a “shadow side” to complementarity in relation to gender justice. Gender biases in the domestic legislation and judicial sector that impede access to justice for victims of sexual violence risk being reproduced under the complementarity principle. Tackling impunity for sexual violence through complementarity should therefore also include a careful examination of gender biases in domestic legal systems by the Prosecutor’s office.
Admissibility before the ICC
The OTP publishes annual preliminary examination reports on a country-by-country basis, which may help experts determine whether situations under preliminary examination, such as Guinea, should progress towards official investigation. Admissibility assessments focus on whether national authorities are ‘willing and able’ to conduct genuine investigations and prosecutions, and whether such proceedings are being conducted with a clear intent to bring perpetrators to justice within a reasonable time frame. The Court’s preliminary examination in Guinea is currently in the admissibility phase.
In its 2020 report, the OTP commended the Guinean Minister of Justice’s commitment to open trial proceedings for the September 2009 crimes in June 2020, yet highlighted Guinea’s evident failure to meet that deadline. While acknowledging the challenges posed by COVID-19, the Prosecutor noted the government’s failure to take possible alternative measures to facilitate the opening of the trial, such as convening the trials’ steering committee, and concluded that, though the Guinean authorities had made significant progress in recent years, no new steps were taken in 2020 towards prosecuting those most responsible for the September 2009 crimes. The Prosecutor has warned Guinea that the time and effort which the OTP is willing to accord domestic proceedings is not ‘indefinite’.
Commentary & Reports
The Office of the Prosecutor’s admissibility assessment found that national authorities had made notable progress towards investigations and prosecutions in past years, but that no new steps were taken since Guinea’s failure to meet its self-assigned deadline of June 2020. A benchmarking framework, defined by the Prosecutor’s office and setting clear targets that must be met to avoid an ICC investigation, is forthcoming.