By Katherine Iliopoulos
The massacre of more than 150 opposition supporters and the brutal rape of dozens of women in Guinea’s capital last year were most likely crimes against humanity according to investigators from the International Criminal Court (ICC). The ICC Deputy Prosecutor Fatou Bensouda said on 20 February that her recent three-day trip to Conakry had “left [her] with the sentiment that crimes against humanity have been committed”.
The ICC investigation’s preliminary findings mirror those of the United Nations and Human Rights Watch (HRW) who each conducted independent inquiries.
Tens of thousands of demonstrators had peacefully gathered in the main stadium in Conakry on 28 September 2009 to protest against continued military rule and Captain Moussa Dadis Camara’s presumed candidacy in the January 2010 presidential elections. Since the death in December 2008 of Guinea’s longtime president, Lansana Conté, the military government had consolidated control of the country’s political affairs, reneged on its promise to hold free and fair elections, and gradually suppressed the opposition with violent measures.
According to HRW, it was not long after the protestors had assembled that security forces led by the Presidential Guard stormed the stadium, blocked all the exits and fired directly into the unarmed crowd, “spraying the crowd from left to right” until they had each emptied two clips of ammunition and yelling, “We’ve come to clean!” Most of the protestors belonged to the Peuhl ethnic group.
Many people who were discovered hidden in toilets or in locker rooms were shot at point blank range; those who fled were chased and shot; women were gang raped and murdered.
The following paragraph from the HRW Report ‘Bloody Monday’ captures the brutality of the atrocities committed that day:
“Bodies were strewn across the field, crushed against half-opened gates, draped over walls, and piled outside locker rooms where doors had been pulled shut by the terrified few who had gotten there first. Dozens of women at the rally suffered particularly brutal forms of sexual violence at the hands of the security forces, including individual and gang rape and sexual assault with objects such as sticks, batons, rifle butts, and bayonets. At least four women and girls were murdered during or immediately after being raped; one woman was shot with a rifle through her vagina while laying face up on the stadium field begging for her life.”
The results of the UN inquiry suggest that the following crimes against humanity were committed: murder, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, rape, sexual slavery, sexual violence, persecution and enforced disappearance of persons and other inhumane acts.
Since by definition war crimes can be committed only during an armed conflict, which was not the case in Guinea, common article 3 of the Geneva Conventions does not apply. Secondly, as there appears to be no evidence to suggest that genocide was committed, only the category of crimes against humanity – which are grave crimes committed as part of a widespread and systematic attack against a civilian population – is applicable to the events of 28 September.
The circumstances of many of the killings and abuses described in the reports suggest that they were committed with either the complicity or upon the orders of Guinean military commanders as high as Camara.
Indeed, the UN Commission of Inquiry found prima facie evidence that as commander-in-chief of the armed forces, President Camara incurred individual criminal liability and command responsibility for the events that occurred during the attack and related events in their immediate aftermath. Command responsibility is proven when there is evidence beyond reasonable doubt that a superior with effective control over his subordinates has failed to prevent or punish the crimes in question.
The UN also accused the Government of a wide-scale cover-up and minimisation of the crimes. One passage of the UN report says that “the Guinean authorities deliberately embarked on destruction of the traces of the violations committed, with the aim of concealing the facts … the Guinean Government has provided utterly contradictory versions of the events …” Together with the extreme gravity of the crimes, the attempt at concealment was described by the UN inquiry as one of the indications of a “coordinated and organised attack,” which would suggest that the systematic element required for crimes against humanity was present. Both the UN and HRW reports describe the violent acts as part of a pattern of conduct indicating a certain degree of coordination between all the armed groups that participated.
The crimes also give rise to a number of human rights violations, notably the most fundamental right, the right to life which is enshrined in article 6 of the International Covenant on Civil and Political Rights (ICCPR). But the only international human rights treaty to specifically deem rape as a human rights violation is the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, which Guinea signed in December 2003 but has not yet ratified. Hence Guinea cannot be held accountable pursuant to the Protocol, but in any case, rape and sexual assault violate the prohibition against torture and other inhumane treatment.
The crimes could also be said to have violated the criminal law of Guinea. Under article 110 of the Penal Code, members of the security forces may use force at public gatherings only if violence is used against them or if they have no other means of defending the location they are occupying or the posts or persons they are responsible for protecting.
Guinea ratified the Rome Statute on 14 July 2003, therefore the International Criminal Court has jurisdiction over the alleged crimes against humanity that were committed there. Since the Court operates pursuant to the principle of complementarity, it may only intervene if the Guinean national authorities are unwilling or unable to conduct their own investigation or prosecution, an issue that is being addressed by ICC lawyers currently in the country.
ICC intervention appears likely however. Transitional Prime Minister Jean Marie Dore has said the judiciary is simply not capable of judging those accused of the massacre. “The way it is organised, the training of the magistrates and some of their behaviour presents problems between the Guinean authorities and their internal and external partners,” he said. According to a 2009 HRW report, the judiciary in Guinea is plagued with deficiencies. It is not independent of the executive, and it is severely disadvantaged by inadequate resources, corruption, poorly trained magistrates and other staff and insufficient numbers of attorneys. Corruption and the poor state of the judiciary also raise questions as to the likelihood of any ICC arrest warrants being executed in Guinea.
One consequence of holding trials before the ICC, rather than in a Guinean domestic court, would be to remove the possibility of defendants being sentenced to death. The death penalty remains part of Guinean law, a situation unlikely to change soon considering that as recently as December 2009, Guinea abstained on a UN General Assembly resolution calling for a worldwide moratorium on executions.
There have not yet been any attempts to investigate those responsible for ongoing or past state-sponsored human rights violations, impunity therefore being one factor among many that could be said to have led to the September 28 massacre.
The September 28 violence drew harsh condemnation from members of the international community, most notably from French Foreign Minister Bernard Kouchner and US Secretary of State Hillary Clinton. ECOWAS and the European Union imposed arms embargos, the EU, US, and the African Union established travel bans and froze the assets of ruling party members, and the EU, US, and France withdrew or cancelled economic and military assistance.
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Report of the International Commission of Inquiry: Events of 28 September 2009 in Guinea
United Nations Security Council
December 18, 2009
Bloody Monday: The September 28 Massacre and Rapes by Security Forces in Guinea
Human Rights Watch
December 17, 2009
2009 World Report: Guinea
Human Rights Watch