VI. International Partners

The international community can play a crucial role in maximizing the prospects for fair, credible justice for the September 28 crimes through encouragement, pressure, and financial support. While Guinea’s international partners juggle a wide docket of objectives vis-à-vis Guinea, and diplomats sometimes view pressing for accountability as sensitive or too difficult,[145] experience has shown that the risks of not prioritizing justice for serious crimes are too high to ignore.[146] As discussed in Section II of this report, persistent impunity for human rights violations in Guinea has fueled abuses and undermined the country’s positive development and risks doing so again in the future.

Moreover, a number of Guinea’s partners are involved in wider efforts to promote domestic accountability for serious crimes. States parties to the International Criminal Court in particular are increasingly focused on identifying ways to better implement the ICC’s complementarity principle.[147] In this context, Guinea represents a potentially important test case for the international community to ensure domestic authorities effectively implement commitments to accountability and that perpetrators are held to account.

To date, several international partners—most notably the ICC and the Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict—have made vital contributions to encourage effective investigation by privately and publicly pressing for accountability, seeking to support the process with relevant expertise, and identifying gaps to progress in the investigation. These activities should be continued.

The United Nations Office of the High Commissioner for Human Rights has also raised concerns over impunity and has provided some informal supplies to the judges. However, as a primary international actor in Guinea with a mandate to promote human rights and implementation of the International Commission of Inquiry’s recommendations, OHCHR should more actively call publicly and privately for Guinea’s government to ensure the investigative panel can work effectively.

Key government and intergovernmental actors—the European Union, the United States, the Economic Community of West African States, France, and Germany—also should substantially increase public and private diplomacy with Guinean officials to resolve outstanding impediments to the judges’ work. While public pressure is not always appropriate, limited public statements on the importance of justice over the past two years risks signaling that the issue is not a serious concern.

The EU, ECOWAS, the US, France, Germany, the UN Development Program, and the UN Peacebuilding Fund also currently appear to provide no direct funding or technical assistance to investigation and prosecution of the September 28 crimes. Support—such as in the areas of witness and victim protection and support; forensic investigation and relevant expertise; training for practitioners on serious crimes investigation, prosecution and defense;[148] and law reform—could be a key way to promote fair, credible justice for the crimes in Guinea.

Given that much of the threat to the judges likely emanates from members of the armed forces, there is also a question as to whether local gendarmes can provide them with adequate security. Partners should assess whether international assistance in security is needed and provide such support as is necessary and when requested. As proceedings further advance, support to ensure adequate defense representation, and outreach and public information to make the process accessible to the local population is likely to become important.[149]

The Peacebuilding Commission is a more recent player that has secured government commitments to support the September 28 investigation. It should continue to raise these issues, intensify pressure for the government to deliver on its commitments, and use its unique role as an intergovernmental advisory body to promote more effective coordination among Guinea’s partners to insist on fair, credible prosecution for the September 28 crimes.

As discussed in the previous section, significant hurdles to fair, credible investigation and prosecution exist. However, the expressed commitments of the Guinean government and the progress of the investigative panel provide an important foundation that international partners can build off in pressing the Guinean authorities to ensure fair, credible justice for the September 28 crimes.

The International Criminal Court

The ICC’s jurisdiction over serious crimes committed in Guinea gives the court unique leverage vis-à-vis domestic accountability efforts, which it has actively used to promote justice for the September 28 crimes. Guinea government officials, civil society members, and international observers all agree that the ICC has been pivotal in keeping accountability on the agenda and promoting support and progress in the judicial process.[150] It will be vital that the ICC continues and intensifies its engagement with Guinean officials—including through regular visits to the country and comments to the media on the progress of the investigation.

Guinea ratified the treaty that establishes the ICC, the Rome Statute, on July 14, 2003. In the weeks following the September 28 massacre, rapes, and other abuses, then-ICC Prosecutor Luis Moreno-Ocampo placed the situation in Guinea under preliminary examination. [151]

The ICC’s Office of the Prosecutor (OTP) completed its first visit to Guinea on February 19, 2010, during which then-Deputy Prosecutor Fatou Bensouda indicated that “this visit has left me certain that crimes constituting crimes against humanity were committed” and that those responsible should be brought to justice.[152] The ICC also requested that Guinean authorities identify focal points to be responsible for maintaining contact with the ICC as needed, and two such points were assigned, which helps facilitate regular communication with the court.[153]

Since the OTP’s first visit, it has returned on five separate occasions. Key features of these visits are meetings with government officials, civil society, victims, and interaction with the media. This approach allows for assessment of progress in the investigation and encouragement of further advances.[154] During the March 2012 visit, for example, Bensouda met with high-level officials, including President Condé, and received assurances from Guinean government officials that the panel of investigating judges would have necessary support to conduct its work and be able to operate independently.[155]

The ICC has actively engaged with Guinean media to publicize its findings as to progress in the investigation, the parameters of the ICC’s role, and the importance of justice. At the end of an OTP March 2011 visit, the head of international cooperation of the OTP, Amady Ba, for example, stated, “[w]e have noted with great satisfaction that justice is at the heart of the priorities of the new government.... It would be advisable, however, to redouble efforts so that this process comes to a close.”[156]

The ICC has publicly indicated that it will open an investigation if justice for the September 28 crimes is not delivered domestically.[157] During her first visit, Bensouda indicated that the ICC will prosecute if Guinea leaves the September 28 crimes unpunished, noting “[t]here is no third way.”[158] During her most recent visit in March 2012, she reaffirmed that “the ICC will investigate and prosecute only if the national authorities do not; it’s one or the other, there is no third option.”[159]

The ICC has not indicated a time frame in which the ICC may open an investigation if Guinea does not ensure justice is done. However, some civil society members came away from the court’s March 2012 visit with the impression the OTP will open an investigation in Guinea if the domestic investigation is not finished by the end of 2012.[160] This underscores the importance of the ICC intensifying efforts to manage civil society expectations.

The effect of the ICC’s engagement is impossible to quantify, but information obtained by Human Rights Watch suggests it has had important impact. One Guinean official, for example, described the ICC’s engagement as useful because it “augments the political willingness to move forward,” while another highlighted that the ICC prosecutor’s involvement helps create a sense that domestic accountability efforts should advance, noting that “people fear Ms. Bensouda.”[161] Civil society members and victims also stressed that the ICC prosecutor is able to underscore that accountability for the September 28 crimes cannot be left aside.[162] In addition, victims indicated that they trust the ICC.[163]

International observers reinforced these views, indicating that the ICC “remains a critical element” that “energizes” the process. International and domestic interlocutors moreover both have a strong perception that ICC visits spur further forward movement in the investigation.[164] While causation is difficult to prove, it is notable that the team of gendarmes assigned to provide the judges’ security first appeared at the judges’ office a week before one of the ICC’s visits in late October 2011, and the Justice Ministry sought to establish a more comprehensive budget for the panel of judges directly after another ICC visit in April 2012.[165]

The United Nations

The UN has played an important role in encouraging accountability for the September 28 crimes, especially the ICOI and Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict.

OHCHR also has been involved in raising concerns over impunity and providing some support to the judges. However, it should increase its efforts to press the government to resolve outstanding obstacles to the panel’s work. Meanwhile, other UN actors, such as the UN Development Program and the UN Peacebuilding Fund, should take up the issue and consider support for key needs such as witness and victim protection and support.

The Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict

The Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict has repeatedly stressed the importance of accountability for the September 28 crimes in public statements and actively sought to support the domestic investigation by making an international expert available to the investigation facilitated by the office’s Team of Experts for Rule of Law/Sexual Violence in Conflict (TOE).[166] These efforts provide vital contributions, which should be continued.

The TOE conducted two missions to Guinea in November 2011 and March 2012 and negotiated terms of reference with the Guinean government to assign an advisor to the investigation. While the advisor’s focus was to be investigating crimes of sexual violence, much of the expertise would be applicable to the investigation more generally. Specific areas to be covered included investigative methods, case management, victim and witness protection, civil society interaction, public information, and technical and logistical assistance.[167]

The terms of reference provided that the advisor would be appointed to the panel of judges, although Guinean officials subsequently raised concerns that this arrangement would undermine the panel’s independence and confidentiality.[168] Further consultations produced revised terms of reference to address these concerns, which provided that the advisor would be assigned to the Ministry of Justice as opposed to the panel.[169]

Those close to the investigation indicate that the panel of investigative judges does not believe that the appointment of the advisor poses concerns as revised.[170] Nevertheless, in June 2012, the justice minister indicated that the arrangement would be declined due to continued concerns over its implications for the independence and impartiality of the panel.[171] Consultations continued to explore whether any way to overcome the concerns could be identified.[172] On October 30, 2012, the Guinean government formally agreed to the deployment of a judicial advisor to be housed within OHCHR to provide technical assistance to the panel of judges and the justice ministry, and the advisor was expected to be deployed at the end of November 2012.[173]

The Human Rights Council and the Office of the High Commissioner for Human Rights

The UN Human Rights Council has issued three resolutions on Guinea, which stress the need for accountability for the September 28 crimes and provide for opening an OHCHR office in Guinea.[174] The ICOI also recommended that OHCHR establish a significant presence in Guinea, including “to serve as a deterrent to potential violators of international law.”[175] OHCHR, which began operating in Guinea in June 2010, has identified combating impunity as a priority and has a mandate to assist the government in implementing the ICOI report.[176]

OHCHR is in regular contact with Guinean officials about accountability for the September 28 crimes, alongside other human rights issues, and has expressed concern about continued impunity in its monitoring reports.OHCHR also provided basic supplies, such as paper, to the panel of judges on an informal basis, although no support is provided currently. [177]

However, Human Rights Watch believes that OHCHR—as a primary international actor with a mandate to promote human rights and to assist in the implementation of the ICOI’s recommendations in Guinea—should take a more active role. This includes more in-depth and robust pressure on the government to resolve outstanding impediments to the investigative panel’s work by ensuring adequate resources and security to the judges, facilitating the assignment of international experts to support the investigation, placing suspects on leave from government posts, and ensuring the judges’ request to interview the former president receive satisfactory responses. OHCHR should also call for the procureur général and procureur de la république to ensure the judges are able to work exclusively on the September 28 investigation and to access potential mass graves, and to interview persons in the surrounding areas.

In addition, OHCHR should call for Guinea to abolish the death penalty and adopt domestic legislation in Guinea that implements the ICC’s Rome Statute and the Convention against Torture. Finally, OHCHR should, in public declarations and press statements, more actively raise the importance of the government ensuring fair, credible investigation and prosecutions—such as around the September 28 anniversary—to underscore to Guinean authorities the significance of accountability.

Other United Nations Actors

The UN Development Program and the UN Peacebuilding Fund provide substantial assistance to Guinea, and their mandates and priorities should allow support to investigation and prosecution of the September 28 crimes. UNDP is deeply engaged in security sector reform, which is structured to encompass the justice sector, and the PBF’s priorities—which closely align with those of the Peacebuilding Commission as discussed below—including security sector reform and national reconciliation.[178]

UNDP and the PBF are not involved in advancing investigation and prosecution of the September 28 crimes. UNDP and the PBF should discuss with Guinean officials international assistance that could be made available to support accountability for the September 28, 2009 crimes and invite requests for assistance, including with respect to a witness and victim protection and support scheme, forensic investigation and expertise, trainings on serious crimes, international security for the judges as needed, and law reform. These actors are also well-placed to regularly underscore the importance of the government providing support to the panel of judges so that they may complete the investigation.

The European Union, the Economic Community of West African States, the United States, France, and Germany

A number of intergovernmental and government actors have diplomatic representation in Guinea or are donors to the country. Following the September 28 violence, the EU, US, and ECOWAS—which expressly called for the secretary-general to establish the ICOI—spoke out against the crimes and urged for justice to be done.[179] More recent public statements and remarks have been more limited. Governmental and intergovernmental actors failed to speak out on the need for justice on the second anniversary of the September 28 violence, and only the US spoke publicly on the importance of justice on the third anniversary of the September 28 violence.[180]

While public calls for accountability may not always be appropriate, moments such as the September 28 anniversary should be important opportunities to stress the need for accountability and greater progress in the investigation. The failure of key players, such as the EU, France, and ECOWAS to weigh in publicly on such relevant dates risks sending a signal that justice is not a significant issue to the international community.

These players also should seize more opportunities to press the government to resolve outstanding impediments to the panel’s work. Although some diplomats regularly raise progress of the investigation in private meetings with Guinean officials, more robust, frequent discussion is necessary to intensify pressure on the Guinean government to resolve gaps in its support for the investigation, including by having adequate resources and security, facilitating the appointment of relevant international experts to support the investigation, having key suspects placed on leave from government posts, and securing satisfactory responses to the judges’ request to question former President Dadis Camara.

These players should also call for the procureur de la république and procureur général to ensure the judges can work exclusively on the September 28 investigation and the judicial police comply with any and all requests by the panel of judges, including to access an identified possible mass grave and question individuals in nearby area.

Major government and intergovernmental donors also appear to currently provide no direct financial assistance to the government’s investigation and prosecution of the September 28 crimes, although the EU supports the process indirectly through financial support to the partie civile action.[181]

The EU is set to be the largest donor of Guinea’s overall justice system, with a €20 million project under development, although this funding cannot be released until legislative elections are held as discussed above.[182] Allocations to the September 28 investigation and prosecution as part of this project were under consideration at time of writing. Germany is also currently providing US$1 million to Guinea’s justice sector, with a focus on capacity building, access to justice, and law reform. Germany’s allocations are set for 2012 and 2013, but funding beyond the period has yet to be determined.[183] ECOWAS is also engaged on justice sector reform through the UNDP security sector reform efforts.[184]

The EU, ECOWAS, US, France, and Germany should discuss with Guinean officials assistance that could be made available to support accountability for the September 28, 2009 crimes and invite requests for assistance from the Guinean government. In the short-term, this should include a witness and victim protection and support scheme, forensic investigation and relevant expertise, trainings on serious crimes, international security for the judges as needed, and law reform. As proceedings advance, additional areas for consideration would be adequate defense representation and outreach and public information to the local population on accountability efforts.

The Peacebuilding Commission

The PBC placed Guinea on its agenda in February 2011 following a request by the Guinean government.[185] To date, the PBC has raised accountability with Guinean officials and ensured the government made an express commitment to the PBC to ensure resources for the investigative panel in its agreement with the Guinean government.[186]

One important aspect of the PBC is its authority to bring together government, intergovernmental, and UN actors, which can better promote coordinated international pressure and support to fair, credible investigation and prosecution. The PBC should press the Guinean government to resolve impediments to the September 28 investigation and to encourage Guinea’s other key international partners to work more closely on targeted pressure, encouragement, and support to ensure perpetrators of the September 28 massacre, rapes, and other abuses are fairly and credibly held to account.