Summary

Shortly before noon on September 28, 2009, several hundred members of Guinea’s security forces burst into a stadium in Guinea’s capital, Conakry, and opened fire on tens of thousands of opposition supporters peacefully gathered there for a rally. By late afternoon, at least 150 Guineans lay dead or dying, and dozens of women had been individually or gang raped, and sexually assaulted with objects such as batons, rifle butts, and bayonets. In the hours and days that followed, the security forces engaged in an organized cover-up to hide the number of dead by sealing off and removing bodies from the stadium and morgues and burying them in mass graves.

Guinea’s people have been repeatedly subjected to human rights violations during successive authoritarian and repressive regimes since the country gained independence from France in 1958. However, the September 28 massacre, rapes, and other abuses were among the country’s worst episodes of abuse.

In October 2009, a Human Rights Watch investigation suggested that the killings, rapes, and other abuses that security forces committed on and after September 28 rise to the level of crimes against humanity due to their widespread and systematic nature, and evidence that the crimes were premeditated and organized. A United Nations (UN) International Commission of Inquiry (ICOI) set up in October 2009 also found it was “reasonable to conclude” that crimes against humanity had occurred.

Based on research in Conakry in June 2012 and follow-up interviews with government officials, justice practitioners, civil society members, journalists, victims, and international partners, this report analyzes Guinea’s efforts to hold perpetrators of the September 28, 2009 massacre, rapes, and other abuses to account with a view to promoting fair, effective investigation and prosecutions of the crimes. It builds upon two previous Human Rights Watch reports—“We Have Lived in Darkness”: A Human Rights Agenda for Guinea’s New Government (2011) and Bloody Monday: The September 28 Massacre and Rapes by Security Forces in Guinea (2009).

Guinea began a new era in December 2010when Alpha Condé became its first democratically elected leader since independence. President Condé and other Guinean officials have on multiple occasions voiced their support for accountability, including for the September 28 crimes. However, this report finds that official rhetoric has not adequately translated into action, and that Guinea’s government has taken too few meaningful steps to support justice for victims of the September 28 massacre, rapes, and other abuses.

A domestic panel of judges investigating the September 28 crimes has taken important strides, including hearing from many victims and filing charges against multiple suspects. However, its work has been stymied by lack of basic supplies, security, and other assistance from the Guinean government, and three years after the crimes were committed, and well over two years after the panel was appointed, pre-trial investigation has yet to be completed.

While cases involving serious crimes can be sensitive and difficult, the potential costs of failing to hold perpetrators to account and take into account victims’ needs underscore the vital importance of fair, effective, and independent investigation and prosecution. Lack of greater government support for the investigation raises questions as to the government’s political will to ensure accountability for the September 28 massacre, rapes, and other abuses—as Guinean civil society, victims, practitioners, and international observers have noted with concern.

Important Steps

Over the past two years, the investigative judges have heard from more than 200 victims, many of whom are formal parties to the investigation—known as partie civile[1]— and are represented by private lawyers, with legal and financial assistance from Guinean and international nongovernmental organizations (NGOs). The judges also have filed charges against, or questioned, at least seven suspects, several of whom have been taken into custody. Of these, one has since been released.

In February 2012 the investigation took a meaningful step forward when Colonel Moussa Tiégboro Camara—Guinea’s current minister in charge of fighting drug trafficking and organized crime (ministre à la présidence chargé de la lutte anti-drogue et du grand banditisme)—became the highest-level suspect to face questioning and charges. According to Guinean legal practitioners, the Guinean judiciary has never brought such a high-level official in for questioning in a criminal case where the victims are civilians. Human Rights Watch and the ICOI both identified Tiégboro Camara as warranting investigation for the September 28 crimes.

More recently, in September 2012, the judges brought charges in relation to the September 28 massacre, rapes, and other abuses against Colonel Abdoulaye Cherif Diaby, who was health minister on September 28, 2009.[2] The ICOI identified Diaby as someone whose role in the September 28 crimes should be investigated.

Undermining Factors

Despite these advances, the investigation that has taken place has progressed very slowly, and several key steps are needed to bring it to a close. Some 100 or more victims are still waiting to give statements to the judges, who have also yet to interview key suspects. These include Guinea’s former President Captain Moussa Dadis Camara, Minister of Presidential Security Captain Claude “Coplan” Pivi, and witnesses who are members of Guinea’s security services who are neither victims nor suspects. The judges also have yet to access potential mass graves or to interview individuals in nearby areas. Meanwhile, some suspects have already been in pre-trial detention longer than the two years permitted by Guinean law.

Four major factors appear to have undermined momentum in the judicial investigation of the alleged perpetrators of the September 2009 crimes:

• An insecure political landscape;
• Lack of judicial independence;
• Limited government support for the investigation; and
• Other legal and institutional obstacles, namely: insufficient protection of rights of the accused, lack of witness and victim protection and support, and inadequate laws.

Insecure Political Landscape

Guinea’s political and security situation remains precarious following the country’s transition in 2010 from 50 years of abusive and authoritative rule. The continued strength of the military is a major factor in this instability, as is the lack of parliamentary elections since Condé took office in late 2010.

In principle, this landscape should have no bearing on the work of the panel of judges. However, at the very least, the context appears to foster an environment in which pursuing cases against officials implicated in crimes that likely constitute crimes against humanity is more difficult and sensitive.

Lack of Judicial Independence

Guinea’s chronically underfunded and neglected justice system—and especially the lack of judicial independence—compounds the difficulties of fair, credible investigation and prosecution of the September 28 crimes.

While the constitution recognizes judicial independence, Guinean law and practice do not. The president and justice minister are involved in appointing and disciplining judges and low salaries make judges vulnerable to corruption. Guinean legal experts indicated to Human Rights Watch that the tradition of lack of judicial independence also appears to contribute to reticence by judges to act without clear encouragement from the executive.

Limited Government Support for Investigation

Guinean authorities have expressed a commitment to ensure justice for the crimes, but have taken inadequate action to ensure this happens.

For example, the investigative judges were initially assigned premises in a building shared with a gendarmes and police unit (Force spéciale de sécurisation du processus électoral, FOSSEPEL) tasked with ensuring security around the 2010 presidential election. This posed a security risk for the judges and their visitors, as sensitive activities became visible and vulnerable to monitoring by people with possible ties to security service members implicated in the 2009 crimes. The judges remained in that location for about a year, without any personnel dedicated to their security, until they were moved in September 2011 to the premises of the Court of Appeal.

Security continues to present challenges. While a team of gendarmes was assigned to provide the judges with ongoing security at their offices in 2011, the judges appeared to feel obliged to end this due to lack of resources.

In 2011 and 2012 the Justice Ministry took many months, if not more than a year, to begin to address the panel’s lack of basic supplies, including pens, paper, equipment, and transport. This led to a near-total halt in the panel’s work from May to September 2012, when the judges finally received a computer and a weekly stipend, and resumed taking victims’ statements. In addition, the justice minister had for multiple months declined for Guinea to avail itself of international technical assistance to support the investigation offered by the United Nations Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict since late 2011, although the government  formally accepted such expertise in late October 2012.

Judicial police, who are overseen by prosecutors—the procureur de la république and procureur général, have also failed to respond to the judges’ request submitted to its director in 2010 to access a potential mass grave and interview individuals in the surrounding area.

Furthermore, it is unclear as to how actively Foreign Ministry officials have pursued obtaining a response from the Burkina Faso government regarding an international request for legal assistance. Known as a rogatory commission, the ministry submitted the request to judges in 2011 to interview former President Dadis Camara in Burkina Faso, where he is in exile. Guinean Justice Ministry officials were unable to provide Human Rights Watch with a detailed update as to the status of the request or explain why it is still outstanding. When Human Rights Watch sent a query to Burkina Faso’s Foreign Ministry, it was unclear whether officials there knew about the rogatory commission.

Finally, at least two high-level officials implicated in the crimes, Moussa Tiégboro Camara and Captain Claude “Coplan” Pivi, remain in their government posts instead of being placed on leave pending investigation. This is despite the fact that their positions could influence the criminal investigation and prosecution, and runs counter to a credible judicial process.

Legal and Institutional Obstacles

Several other legal and institutional obstacles continue to raise concern for fair, effective proceedings. These include insufficient protection of rights of accused, lack of a protection and support scheme for witnesses and victims, and inadequate laws.

Extended pre-trial detention—exceeding two years—and access to counsel are significant problems for suspects of the September 28 crimes, and are contrary to international fair trial standards. With regard to witness protection, trials of serious crimes can be extremely sensitive and create risks for witnesses and victims who may testify to deeply traumatic events. Guinea has no tradition of providing witnesses or victims protection and support, although Guinean law does provide some sanctions for intimidating witnesses.

Guinean law also does not define as crimes torture and crimes against humanity (defined by the widespread or systematic nature of their commission, as part of an “attack,” or state or organizational policy, against a civilian population). As a result, the September 28 crimes are expected to be prosecuted as ordinary crimes, such as murder, rape, and organized crime. However, prosecuting the abuses as if they were ordinary crimes may not capture their gravity, nor may it address the needed range of liability. For example, liability such as “command responsibility,” can be important to encompass liability beyond physical commission of the crime. The death penalty also is available as a punishment, but should not be available due to its inherent cruelty.

Necessary Steps: Guinea

The Guinean government—the president and justice minister in particular—should meet a number of key benchmarks to ensure the panel of investigative judges can operate effectively, namely: ensuring adequate resources and security for the judges, facilitating the appointment of relevant international experts to support the investigation, placing key suspects on leave from their government posts, and redoubling efforts to secure an affirmative response to the judges’ request to interview former President Dadis Camara.

The procureur général and the procureur de la république should ensure that the judges are able to work exclusively on the September 28 investigation, access potential mass graves, and interview persons in surrounding areas.

The judges should swiftly address any illegal pre-trial detention of suspects of the September 28 crimes, bringing any persons who need to remain in pre-trial detention to a speedy trial or release. In addition, access to representation should be made available as soon as one is detained, and if suspects lack means, representation should be available free of charge consistent with Guinean and international law.

The justice minister should initiate the development of a witness and victim protection and support scheme. With regard to legal reform, International Criminal Court (ICC) implementing legislation is needed that makes genocide, war crimes, and crimes against humanity consistent with international standards punishable crimes under Guinea’s domestic law. A law is also needed that incorporates a specific crime of torture consistent with Guinea’s obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture). Since these crimes were already established as such under international law, prosecuting the crimes committed before their domestic codification would not violate the principle of non-retroactivity. The death penalty should be abolished.

Some Guinean civil society and victims indicate they are waiting for the International Criminal Court— to which Guinea is a state party, and whose Office of the Prosecutor has placed Guinea under preliminary examination—to open an investigation in Guinea so that perpetrators are held to account. Whether this happens is an open question: under the ICC’s complementarity principle, the court only acts where national authorities are unable or unwilling to prosecute. But even if it were to open an investigation, its scope to ensure justice is limited since it is based thousands of miles away in the Netherlands, and only focuses on suspects with the greatest alleged levels of responsibility, and on genocide, war crimes, and crimes against humanity.

Necessary Steps: International Community

Guinea’s international partners—the United States (US), European Union (EU) and Office of the High Commissioner for Human Rights (OHCHR) in particular—juggle a wide range of objectives vis-à-vis Guinea, and diplomats sometimes view pressing for accountability there as too sensitive or difficult. However, experience has shown that the risks of not prioritizing justice for serious crimes are too high to ignore.

The international community can play a crucial role in maximizing prospects for fair, credible justice for the September 28 crimes through encouragement, pressure, and support. In particular, international partners can build upon the expressed commitments of Guinea’s government and the investigative panel’s work to press its authorities to ensure justice for crimes that day.

Several international partners—notably the ICC and the UN Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict— have made vital contributions to encouraging effective investigation by privately and publicly pressing for accountability, supporting the process with relevant expertise, and identifying gaps in the investigation’s progress. The ICC has played a pivotal role in keeping accountability on the government’s agenda and fostering progress in the investigation by regularly visiting Guinea and discussing progress in the investigation with media—activities that should continue.

The OHCHR has raised concerns over impunity and provided some informal supplies, such as paper, to the judges. However, as a primary international actor in Guinea with a mandate to promote human rights and implementation of the ICOI’s recommendations, Human Rights Watch believes the OHCHR should take a more active role via more in-depth and robust public and private pressure on the government to resolve impediments to the investigative panel’s effective functioning.

A number of Guinea’s international partners are involved in wider efforts to promote domestic accountability globally for serious crimes. In particular, states parties to the ICC are increasingly focused on identifying ways to better ensure that its complementarity principle—by which the ICC only intervenes where national courts are unable or unwilling to prosecute—is effectively put in practice. In this context, Guinea’s efforts to ensure justice for the September 28 massacre, rapes, and other abuses are a potentially important test case for the international community to help ensure accountability at the domestic level.

Key government and intergovernmental actors—the EU, Economic Community of West African States (ECOWAS), US, France, and Germany—should substantially increase public and private diplomacy with Guinean officials to ensure investigative judges can work effectively. While public pressure may not always be appropriate, limited public statements by such actors on accountability for the September 28 crimes over the past two years risks signaling that the issue is not a serious concern.

International partners also appear to provide no direct support for investigating and prosecuting the September 28 crimes. The EU, ECOWAS, US, France, Germany, UN Development Program (UNDP), and UN Peacebuilding Fund (PBF) should raise with Guinean officials the issue of assistance that could be made available. They should invite requests for 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; and law reform.

International partners should also assess whether international security for the judges is needed and provide support that is requested. As proceedings advance, support for adequate defense representation, and outreach and public information to the local population about the process also are likely to be important.

The UN Peacebuilding Commission (PBC) is a more recent partner that has raised accountability and secured commitments by the Guinean government to support the September 28 investigation. It should press the government to deliver on these commitments and use its unique role as an intergovernmental advisory body to promote coordination among Guinea’s partners to insist on credible prosecutions for the September 28 crimes.

The Imperative to Act

International law mandates prosecuting serious crimes that violate international law—genocide, war crimes, and crimes against humanity. This duty to prosecute lies primarily with domestic authorities, but can also rest with international courts and with countries where suspects are present.

But justice has a human—not just legal—imperative. Guinean victims have repeatedly called for perpetrators of the September 28, 2009 crimes to be held to account. Justice gives victims a chance to achieve a measure of redress for the harms they have suffered, and strengthens the rule of law, which in turn helps to promote long-term peace and stability. Notably, the World Bank’s 2011 report, Conflict, Security, and Development, identified justice as one of three crucial elements needed “to break cycles of violence.” This is particularly true in Guinea where the persistent state failure to investigate and hold accountable alleged perpetrators has contributed to more violations.

Intensified efforts by UN, government, and intergovernmental actors can promote fair, credible justice and demonstrate the international community’s commitment to hold perpetrators accountable for their crimes. Ultimately though, Guinea’s government should deliver on its expressed dedication to ensure justice is served by increasing its support for investigation and prosecution related to the crimes committed around September 28, 2009.

Domestic accountability has its challenges: cases involving serious crimes are often sensitive and need resources that are scarce. But failure to act and impunity for perpetrators of abuse also carry high costs by potentially fueling renewed abuses that are devastating for the population and national development, and sending a strong signal that Guinea is not committed to accountability. Credible domestic investigation and prosecution would not only help victims to achieve some redress, it would be a major contribution in moving Guinea to a new era characterized by respect for rule of law and human rights.