How the 2020 Guinean Elections Might Impact Justice for the 28 September 2009 Massacre. (Part 2)

This blogpost is the continuation of “How the 2020 Guinean Elections Might Impact Justice for the 28 September 2009 Massacre. (Part 1)“, posted yesterday morning.

3. Civil society member Asmaou Diallo expressed skepticism about the eventuality of a trial in June 2020

Asmaou Diallo, a Guinean civil society member who lost her son in the 28 September 2009 Massacre, has been working tirelessly since 5 October 2009 with her local association “Association des Victimes, Parents et Amis du 28 Septembre” to achieve justice. She explained that victims need medical and psychological treatment: many raped women at the stadium have contracted HIV and other life-threatening diseases, and a lot of victims also cruelly lack the necessary support to heal from this traumatic experience. 

Considering the current national political agenda, Ms. Diallo expressed doubts that a trial in 2020 would effectively deliver justice to victims. In the past, Guinea has consistently been falling into cycles of violence and impunity, and since October 2019, violence in the streets has increased. Further, as President Alpha Condé wants to amend the Constitution to stay in power, Ms. Diallo fears that another 28 September massacre might occur.

In Ms. Diallo’s view, the trial will not take place in 2020. Since accused officials continue to hold positions of power and victims remain unprotected, she argued that the government most likely will hinder any possibility for justice to be delivered. 

4. Franco Matillana, from the ICC OTP, expressed trust towards the Guinean justice system

Last but not least, Franco Matillana outlined the ongoing ICC proceedings with respect to the situation in Guinea. As mentioned above, the OTP opened a preliminary examination more than 10 years ago, in October 2009. In its 2019 Report on Preliminary Examination Activities, the OTP concluded that there was a reasonable basis to believe that crimes against humanity pursuant to article 7 of the Rome Statute had been committed in the national stadium on 28 September 2009 and in the immediate aftermath. More precisely, it mentioned murder under article 7(1)(a), imprisonment or other severe deprivation of liberty under article 7(1)(e), torture under article 7(1)(f), rape and other forms of sexual violence under article 7(1)(g), persecution under article 7(1)(h), and enforced disappearance of persons under article 7(1)(i).

Currently, the preliminary examination is at phase 3, which means that the OTP is assessing the admissibility of this situation, notably in the light of the complementarity principle. This principle entails that national authorities are primarily responsible of delivering justice at the national level (article 1 of the Rome Statute). That said, even though the perspective of a trial in June 2020 means that many steps have yet to be completed within a short period of time, including the construction of the new courtroom in Conakry and the training of the magistrates, Franco Matillana expressed trust towards the Guinean authorities. According to him, a real and genuine cooperation exists between the ICC and Guinean national authorities. Mr. Matillana reminded that setting and announcing publicly a precise date for the trial is a good sign, as it showcases the commitment of the Guinean government to deliver justice. 

5. Concluding remarks 

            Justice and accountability for the 28 September Massacre are far from certain. The perspectives shared by all panelists at the side event suggest that the decisions and actions taken by Guinean authorities are likely to have a decisive impact on the foreseeable future. It must be emphasized that the Guinean presidential elections’ agenda is concerning: Guineans do not want the current President Alpha Condé to amend the Constitution to allow him to run for a 3rd term, and civil society groups are regularly demonstrating in the streets. In this context, Ms. Diallo’s fear of another 28 September Massacre seem well-founded. In any case, the fight for justice for the 28 September Massacre should not be side-tracked by the upcoming elections. It is a high time for the international community to wake up and take concrete action to pressure the Guinean government to ensure justice and accountability for victims of international crimes in Guinea.

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This blogpost and the author’s attendance to the 18th Assembly of States Parties to the International Criminal Court are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

How the 2020 Guinean Elections Might Impact Justice for the 28 September 2009 Massacre. (Part 1)

On the third day of the 18th Assembly of States Parties (ASP) to the International Criminal Court (ICC), held in The Hague from 2 to 7 December 2019, a side event named “Guinea: A decade after, victims of the 2019 massacre are still waiting for justice” took place. It was co-organized by the International Federation for Human Rights (FIDH) and the Guinean civil society organizations Organisation guinéenne de défense des droits de l’homme et du citoyenMêmes droits pour tous and the Association des victimes, parents et amis du 11 septembre 2009. Moderated by Delphine Carlens, Head of the International Justice section at FIDH, the event featured panelists Drissa Traoré, FIDH Under-Secretary; Asmaou Diallo, President of the Association of Victims, Parents and Friends of the September 28 Massacre; and Franco Matillana, from the ICC’s Office of the Prosecutor (OTP). As panelists shared their views on the prospects for justice for the September 2009 Massacre in Guinea, this blog post will elaborate on the key aspects of this enriching discussion. Specifically, it will summarize the context of the September 2009 Massacre, before turning to explore the ongoing judicial proceedings within the Guinean domestic legal system, victims’ perceptions of these proceedings, and the ongoing ICC preliminary examination.

Flyer of the event co-organized by the FIDH and Guinean civil society organizations, held in The Hague on 4 December 2019. 

1. What happened in Guinea on 28 September 2009?

On 14 October 2009, the ICC OTP announced the opening of a preliminary examination with respect to the situation in Guinea. It stated that this “preliminary examination focusses on alleged Rome Statute crimes committed in the context of the 28 September 2009 events at the Conakry stadium.” As Guinea is a State Party to the Rome Statute, having deposited its instrument of ratification on 14 July 2003, the OTP announced that it would investigate international crimes committed on the territory of Guinea or by Guinean nationals from 1 October 2003 onwards (Rome Statute, article 11). 

 The contextual background of the September 2009 Massacre is described in the subsequent OTP Reports on Preliminary Examination Activities (see e.g the 2019 report here). In December 2008, after the death of President Lansana Conté, who had ruled Guinea since 1984, Captain Moussa Dadis Camara seized power in a military coup. As the new head of State, he established a military junta, the Conseil national pour la démocratie et le développement (CNDD, orNational Council for Democracy and Development), and promised that this body would ensure that power is handed to a civilian president following presidential and parliamentary elections. However, as time went by, Captain Camara’s attitude and statements seemed to suggest that he might actually run for president, which led to protests by its political opponents and civil society groups. 

On 28 September 2009, the Independence Day of Guinea, an opposition group gathering at the national stadium in Conakry was violently repressed by national security forces. According to Human Rights Watch, they opened fire on civilians that were peacefully calling for transparent elections. Some civilians were shot, beaten, and even raped in daylight. According to the OTP’s 2019 Report on Preliminary Examination Activities, more than 150 people died or disappeared, at least 109 women were victims of rape and other forms of sexual violence, including sexual mutilations and sexual slavery, and more than 1000 persons were injured. Cases of torture and cruel, inhuman or degrading treatment during arrests, arbitrary detentions, and attacks against civilians based on their perceived ethnic or political affiliation are also mentioned in the 2019 OTP Report.

Ten years after the massacre, are Guinean victims any closer to see their tormentors be held accountable? One after the other, panelists at the ASP side event shared their points of view. 

2. Drissa Traoré, FIDH Under-Secretary, depicted the judicial landscape and pointed key issues

At the ASP side event, FIDH Under-Secretary Drissa Traoré critically depicted the ongoing judicial proceedings taking place within the Guinean domestic legal system with respect to the 28 September massacre. In February 2010, the case was referred by Guinean Prosecutors to a group of magistrates, before whom it progressed slowly amid political, financial, and logistical obstacles. Despite being charged, many senior officials remained in office. During the investigation, judges have heard the testimony of 450 victims and their their family members. The judicial process was still ongoing when, in 2018, the Minister of Justice Cheick Sako set up a steering committee tasked with the practical organization of the trial. Conakry’s Court of Appeal was identified as the final location for the trial. However, Minister Sako resigned from his position as Minister of Justice in May 2019, causing further delays in the organization of the trial.

In 2019, the newly appointed Minister of Justice, Mohamed Lamine Fofana, decided to reform the steering committee: even though this committee was supposed to meet once a week, in practice, it had met only intermittently. Mr. Fofana also announced that the trial would take place in June 2020, and the government decided to build a new courtroom for this trial to be held. Drissa Traoré stressed that the construction of this courtroom could be a pretext to delay the trial once again. At the time of the ASP, in December 2019, the construction had not begun, and the judges presiding over the trial had yet to be appointed and trained for a such a trial. 

To Drissa Traoré, it is imperative that the charged civil servants who remain in office be dismissed from their positions before the beginning of the trial. He also emphasized the necessity for victims and witnesses to be protected from and any undue pressure that could be exerted against them. 

Mr. Traoré also highlighted that the sociopolitical context in Guinea is currently strained. Guinean presidential elections will take place in 2020, and demonstrations are regularly taking place, accompanied by daily arrests and deaths. To Mr. Traoré, it is crucial that this trial takes place, as it would send a message that impunity for grave crimes is not tolerated in Guinea. 

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You can read the second part of the blogpost here:  How the 2020 Guinean Elections Might Impact Justice for the 28 September 2009 Massacre. (Part 2)

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This blogpost and the author’s attendance to the 18th Assembly of States Parties to the International Criminal Court are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

The Gender Justice Shadow of Complementarity: Lessons from the International Criminal Court’s preliminary examinations in Guinea and Colombia

In early July 2013, Human Rights Watch reported that one of the alleged perpetrators of the 2009 Guinea stadium massacre, Lieutenant-Colonel Claude Pivi, has been charged with murder, rape and destruction of property. This was an important first step towards holding one of primary suspects of this atrocity to account. It was also a significant moment for the International Criminal Court (ICC), which in 2009 had commenced a preliminary examination –under the Rome Statute’s complementarity provisions – into this massacre, and the Guinean authorities efforts to bring to justice the perpetrators. However, as we point out in a forthcoming article in the International Journal of Transitional Justice [forthcoming: Volume 7 (3)] the Guinean case also highlights the existence of a ‘gender justice shadow’ in relation to the ICC’s complementarity processes, especially in relation to the investigation and prosecution of crimes of sexual violence against women.

Our article considers the ICC’s Office of the Prosecutor (OTP) preliminary examinations of both the Guinean massacre and the Colombian conflict and argues that, on an analysis of  publically available information, the OTP has applied a low threshold when assessing crimes of sexual violence against women against the three core criteria – state action, willingness and ability – of the Rome Statute’s complementarity test, effectively leaving intact impunity for these crimes.

Our argument here mirrors the work of Kevin Heller, who has shown that while the Rome Statute establishes the highest standards of due process for cases before the ICC, its complementarity provisions do not extend due process rights in national jurisdictions. Similarly, we suggest that there is a ‘gender justice shadow’ side to complementarity: the Rome Statute provides the most developed articulation of gender justice of any instrument of international criminal law, yet complementarity does little to extend these measures to the domestic level.

Members of the Women’s Caucus for Gender Justice, who were so influential in shaping the ground-breaking gender justice aspects of the Rome Statue, were the first to highlight this gender justice shadow. During the negotiations process in the late 1990s, the Caucus cautioned that unless the Rome Statute recognised in its complementarity tests of action, willingness and inability the gender biased features of national penal codes, especially weak substantive and procedural laws to address sexual violence against women, it ‘could result in impunity for crimes of sexual and gender violence’ (Women’s Caucus for Gender Justice, ‘Gender Justice and the ICC’, paper presented at the Rome Conference, Italy, 15 June – 17 July 1998, 24; document with the authors). This argument has since reiterated by other commentators and academics (see Women’s Initiative for Gender Justice, Susana SáCouto and Katherine Clearly, and Amrita Kapur).

Our analysis shows that the OTP’s preliminary conclusions about complementarity in Guinea and Colombia have failed to take adequate account of crimes of sexual violence against women. There are questions as to whether the domestic proceedings have addressed either the same persons or the same crimes, particularly where sexual violence is involved. In both Guinea and Colombia, some of the sexual violence crimes documented by the OTP are not included in the domestic penal codes, and a lack of transparency makes it difficult to assess which individuals the OTP is investigating, and whether they have been charged for sexual violence at the national level.

Similarly, it appears that in the OTP’s application of the willingness and ability criteria in these two sites, gender biases in domestic law have been overlooked. Based on the available documentation, it seems there has been minimal, if any, attention given to impartiality in proceedings for victims of sexual and gender-based crimes or the limitations in local laws to allow for investigation and prosecution of a full range of sexual and gender-based crimes.

These problems of apparent non-recognition of gender justice issues in Guinea and Colombia are a legacy of the failure of States to include the Women’s Caucus for Gender Justice’s suggestions to expressly integrate gender justice concerns in the complementarity provisions. The prediction made in the 1990s by the Women’s Caucus appears to have become a reality at least in Guinea and Colombia: ongoing impunity for many perpetrators of sexual violence, and little justice for the victims of these crimes. This is, we argue, the gender justice shadow of complementarity.

The positive side of the story is that the ICC’s second Prosecutor, Fatou Bensouda, has professed a strong commitment to gender justice; building around her a team of advisors including Brigid Inder, Patricia Viseur Sellers and Diane Amann, who have high-level gender justice expertise. The creation of an overarching OTP gender policy, slated for release in 2013, will provide the chance for the Office to draw on lessons from its first decade in operation and establish new procedures which embed core gender justice concerns in ongoing and future complementarity assessments. At minimum is hoped that the OTP will provide clear criteria for evaluating action, willingness and ability at the preliminary examination stage in ways that capture existing gender biases in the law. In implementing this policy it will be important that the OTP, and the other arms of the Court, are as transparent as they can possibly be (within a highly sensitive legal context) about their recognition of gender biases when undertaking preliminary examinations and throughout the complementarity process. It is only when such information is available that a complete assessment can be made of the impact of the gender justice shadow of complementarity.

— Co-authored with Louise Chappell and Rosemary Grey.