V. Challenges to the Investigation’s Progress

Four major factors appear to have undermined momentum in the judicial investigation of the alleged perpetrators of the September 2009 crimes and engendered a climate that is not conducive to progress:

• An insecure political landscape;
• Lack of judicial independence;
• Inadequate efforts by Guinea’s government to support the investigation; and
• Other legal and institutional obstacles, namely: insufficient protection of rights of accused, lack of protection and a support scheme for witnesses and victims, and inadequate laws.

The lack of greater government support raises questions as to the government’s political will to ensure accountability for the September 28 massacre, rapes, and other abuses. Guinean civil society repeatedly raised concern that the Guinean authorities are not committed to ensuring justice is served.[74]

Several individuals whom Human Rights Watch interviewed indicated that they are waiting for the International Criminal Court to open an investigation so that perpetrators are held to account. [75] Whether the ICC does so is an open question. But even if it were to, the scope of such an investigation would be limited since the ICC is based thousands of miles away in the Netherlands, focuses only on suspects with the greatest levels of responsibility, and on genocide, war crimes, and crimes against humanity—as opposed to a wider range of abuses. [76]

While some interlocutors cite the fragile political landscape as a reason why the government has not better supported the investigation, the government should not lose sight of the potential implications of failing to ensure justice.[77] As highlighted in Section II of this report, impunity has been a major factor in fueling violence and abuse in Guinea.

In addition, although some interlocutors cite Guinea’s many pressing problems—such as the need to hold parliamentary elections and reform the security services—to explain the lack of greater focus on accountability,[78] some of the most important steps to support the investigation’s advance have involved quite limited measures, such as providing pens and paper to the judges.

There are a number of key benchmarks the Guinean government—and the president and justice minister in particular—should meet to ensure the panel of investigative judges is able to operate effectively, as discussed below, namely:

• Ensure the panel of judges have adequate resources and security;
• Facilitate the appointment of relevant international experts to support the investigation;
• Place key suspects on leave from their government posts; and
• Redouble efforts to secure an affirmative response to the judges’ request to interview former President Dadis Camara.

Prosecutors—the procureur général and procureur de la république—should also ensure that judges can work exclusively on the September 28 investigation, access potential mass graves, and interview persons in the surrounding areas.

Failure by Guinea to take these steps can be expected to critically hinder the prospects for justice for the September 28 crimes to be delivered and will send a strong signal that Guinea is not committed to accountability. On the other hand, credible domestic investigation and prosecution would make a major contribution to moving Guinea to a new era characterized by respect for rule of law and human rights.

An Insecure Political Landscape

Guinea’s political and security situation remains precarious. Guinean officials and international observers consistently emphasize that the situation is “uncertain” and “fragile,” and that the country’s transition from 50 years of abusive and authoritative rule, from which it recently emerged, is not complete.[79] While a civilian government is in place, a stable democracy characterized by respect for rights has yet to be entrenched.

The continued strength of the military is a major factor, and specific individuals implicated in the September 28 crimes, in particular Claude Pivi, continue to wield considerable power and influence.[80] There are efforts to reform the security sector and to bring the security services under civilian oversight.[81] Four thousand members of the armed forces were recently decommissioned and the military presence in Conakry has decreased.[82] These steps are positive but limited, and do not shift overall perceptions that the security forces remain a threat to the country’s stability.[83]

The lack of parliamentary elections since Condé took power in late 2010 is another significant issue. The elections have been repeatedly postponed in the face of political conflicts and machinations.[84]

In principle, this landscape should have no bearing on the work of the panel of judges. Yet, it was repeatedly and very widely cited by individuals interviewed by Human Rights Watch as an impediment to advancing justice for the September 28 crimes. [85] 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

The weak state of Guinea’s justice system—and especially lack of independence of the judiciary—compounds these difficulties.[86] Marginalization, neglect, and manipulation of the Guinean judiciary have led to striking deficiencies in the sector. Problems include inadequate funds to conduct judicial investigations, ensure legal representation for accused, and care for prisoners.[87]

Lack of judicial independence is particularly concerning. [88] While the constitution recognizes judicial independence, [89] Guinean law and practice do not. Notably, the president and justice minister are involved in appointing and disciplining judges. [90] Low salaries also make judges vulnerable to corruption, and government officials, businessmen, and military figures have regularly interfered with and influenced judicial proceedings. [91]

Far reaching reforms have been proposed since Condé took office in 2010, but the government has stalled on implementing such measures.[92] Guinean legal practitioners told Human Rights Watch that essentially no measures to increase judicial independence have been implemented since Condé took office.[93]

For example, while the government has established a secretariat for justice reform, the secretariat has lacked an accessible office from which to work for multiple months. The government also continues to lag on establishing the Superior Council of Judges (Conseil supérieur de la magistrature), which would help promote judicial independence as a body responsible for the discipline, selection, and promotion of judges. Moreover, funding for the justice sector remains less than one-half of one percent of the country’s budget.[94]

According to Guinean lawyers, one legacy of the lack of independence appears to be a reticence by judges to take action without clear encouragement from the executive.[95] Interviews with Guinean officials suggested that some Justice Ministry officials also believe that the investigation of September 28 crimes should proceed “slowly” or “gently” given the sensitivity of the cases.[96] This risks having a chilling effect on the judges’ work and, more directly, threatens judicial independence.

Limited Guinean Government Support

While President Condé and other Guinean officials have on multiple occasions voiced their support for accountability, including for the September 28 crimes,[97] they have taken too few meaningful steps to move the rhetoric into action.

Expressed Support for Accountability

When Condé was elected, he emphasized that change in Guinea must begin with an end to impunity and corruption, and at his December 2010 swearing-in ceremony affirmed that Guinea “will put an end to impunity.”[98] In November 2011 the government also committed to lend all technical assistance that the investigating judges needed and to implement the recommendations of the International Commission of Inquiry in an agreement with the United Nations.[99] More recently, Guinean government officials affirmed to the UN Peacebuilding Commission[100] its intention “to go all the way in the fight against impunity.”[101] Guinean officials also have assured ICC officials that the panel of judges would receive resources to effectively carry out their work.[102]

Lack of Basic Support and Limited Security for the Panel of Judges

These statements have not been backed up by concrete action. In particular, in 2011 and 2012, the government took many months, if not more than a year, to begin to resolve the panel’s lack of basic supplies—including pens and paper, equipment, and assistance to transport the judges or victims to participate in interviews—which undercut the panel’s ability to function.[103]

Information on efforts to resolve resource concerns was conflicting. Some sources suggested that a request for resources was pending with the Ministry of Finance, while others suggested that a request was pending in the Justice Ministry; meanwhile, an official who deals with budgets indicated that no such request was pending at any ministry.[104]

Some officials also indicated that donors had received, and rejected, requests for support, although donors with whom Human Rights Watch spoke said they were unaware of such requests. [105] Several practitioners told Human Rights Watch they view the lack of resources for the panel as a sign the government lacks the will for the investigation to advance. [106]

The lack of resources led to a near-total halt in the work of the panel from May to September 2012. According to information available to Human Rights Watch, the judges on the investigative panel received a computer, along with a weekly stipend, in September 2012, after which they resumed taking statements from victims.[107]

In addition, the procureur de la république and procureur général, who—according to a Guinean legal expert—determine the cases to which the investigating judges are assigned, have failed to ensure the judges on the investigative panel work exclusively on the September 28, 2009 investigation as they did when the investigation began.[108] Interlocutors noted that the judges are rarely present at their office and it can be very difficult to secure meetings with all three of them together.

The Guinean government—and the justice and defense ministries in particular—also have failed to ensure security for the panel of judges investigating the September 28 crimes. Given the sensitivity of the cases, threats to judges and other practitioners involved in investigation or trial of crimes committed during the September 28 violence and its aftermath can be anticipated. While a team of gendarmes was assigned to provide ongoing security at the judges’ offices in 2011, the judges appeared to feel obliged to end this due to lack of resources.[109] Local custom provides that gendarmes receive food from the persons to whom they provide full-time duty and as the judges have received no funds for this purpose, the judges relieved the gendarmes from their dedicated security duties.[110]

The gendarmes instead provide security on an as-needed basis during business hours, and no security is provided during non-business hours. [111] Several practitioners close to the investigation noted that the judges are understandably concerned for their safety, that the lack of security is slowing down the investigation’s progress, and that the inability of the government to ensure full-time security for the judges is a signal of the government’s lack of commitment to the investigation. [112]

Furthermore, the justice minister had declined for Guinea to avail itself of an international expert to support the investigation for multiple months, which was offered by the UN Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict and is discussed in greater depth in Section VI. Trials of serious crimes tend to involve specialized skills and experience, which numerous persons have now accumulated through the practice of international and hybrid international-national tribunals over the past two decades. Human Rights Watch is not in the position to definitively assess whether Guinean law poses challenges to utilizing international experts.[113] Nevertheless, it should be possible for the justice minister to structure arrangements in such a way as to overcome any such challenges to ensure that Guinea does not squander the opportunity to benefit from international expertise.

Key Suspects in Government Posts

Key officials who are implicated in the crimes, namely Moussa Tiégboro Camara and Claude Pivi, remain in their government posts where they can potentially influence the investigation, as opposed to being placed on leave.

Guinean officials have argued that it is important to allow the suspects to remain in their posts to avoid interfering in the investigation, thereby respecting judicial independence.[114] However, internationally accepted practice provides that officials who are implicated in crimes should be removed from positions where they could threaten or influence investigation of those crimes.[115] By allowing them to remain in their posts, the government is undercutting the appearance of a credible justice process.

Outstanding Requests for Assistance

There are questions as to how actively Guinean officials have pursued the international request for legal assistance, known as a rogatory commission, requesting that the judges interview former president Dadis Camara, which was submitted to Burkina Faso in 2011. Guinean Justice Ministry officials were unable to provide any detailed update as to the status of the request or why it continues to be outstanding; when Human Rights Watch sent a query to Burkina Faso’s Foreign Ministry, it was also unclear whether officials there knew about the rogatory commission.[116]

The judges’ request to the director of judicial police to access an identified potential mass grave and interview individuals in the surrounding area also have been pending for more than two years without response.[117] The procureur de la république and procureur général, who oversee the work of the judicial police and are ultimately under the authority of the Justice Ministry, should ensure compliance with the request.[118]

Legal and Institutional Obstacles

Several other legal and institutional obstacles also continue to raise concern for fair, effective proceedings. As discussed below, these are: insufficient protection of rights of accused, lack of protection and a support scheme for witnesses and victims, and inadequate laws.[119]

Insufficient Protection of Rights of the Accused

Respect for internationally agreed upon rights of the accused ensures judicial processes are, and appear to be, fair and credible.[120] Failure to uphold these rights in law and practice risks casting a shadow over efforts to hold perpetrators to account.

Given that the September 28 accountability efforts remain at the investigation phase, the full range of issues that may arise to ensure the rights of the accused has likely not yet materialized.[121] Nevertheless, extended pre-trial detention and access to counsel are already significant problems. Ensuring the presumption of innocence also presents a challenge. The judges should ensure as a matter of urgency that all suspects are lawfully detained and have adequate access to lawyers.

Currently at least one, and potentially several more, suspects of the September 28 crimes have been in custody for more than two years.[122] The manner in which Guinean law on detention applies to these suspects could be subject to debate as to whether the relevant pre-trial detention period should be six months or one year.[123] However, there appears to be general agreement amongst Guinean lawyers that there is no legal basis in domestic law for pre-trial detention for more than two years and that some suspects in the September 28 investigation are currently illegally detained.[124] 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.

Moreover, some of these suspects were not given meaningful access to a lawyer when they were first detained and questioned. Kuvugi, for example, did not access a lawyer until more than seven months after he was taken into custody.[125] 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.[126] Persons arrested or otherwise detained under suspicion of committing a criminal offense must be brought promptly before a judge or equivalent to rule on the legality of their detention, and promptly informed of any charges against them.[127]

Lack of Framework for Protection and Support for Witnesses and Victims

Trials of serious crimes can be extremely sensitive and create risks for witnesses and victims who may testify to deeply traumatic events. The continued strength of the armed forces in Guinea is a particular concern; members of the security forces who are directly implicated in the September 28, 2009 violence or who are opposed to their colleagues being investigated pose potential threats.[128] Practitioners who work with victims also told Human Rights Watch that some victims were threatened and told not to tell their stories soon after the crimes were committed, although no physical attacks have been reported.[129]

Guinea’s criminal law procedure may heighten the risks at an early stage as defense counsel are permitted to access the case dossier—which includes identities of those who have given statements to the judges—during the investigation phase.

Guinea has no tradition of providing witnesses or victims protection and support, although Guinean law does provide some sanctions for intimidating witnesses.[130] Protection in practice has, until now, been assisted informally by foreign diplomatic missions and NGOs.[131] Practitioners indicated that Guinea’s judges also could withhold names and other identifying information of victims and witnesses from the dossier due to security concerns, but this had not been done to date.[132]  Any such efforts would need to respect the right of defendants to confront witnesses and evidence against them during trial or earlier in the procedure, during the investigation phase.[133]

A framework to ensure witnesses and victims are adequately protected and supported is vital to promote the well-being of those involved, along with facilitating their continued cooperation with the process. This should include risk assessment and providing physical and psychological assistance before, during, and after the proceedings; facilitating court appearances, including through the use of pseudonyms and private courtroom sessions as needed; and measures to protect the confidentiality, integrity, and autonomy of the proceedings, while overall ensuring a fair trial, including the right of all persons to be able to challenge the evidence and witnesses against them.[134]

Notably, witness protection and support are areas where accumulated expertise exists among international and hybrid international-national courts, including the ICC and the Special Court for Sierra Leone.[135] The Ministry of Justice should take steps to develop an appropriate witness and victim protection scheme with financial and technical assistance from the international community.

Inadequate Laws

Crimes against humanity are not defined as crimes under Guinean law, and the September 28 crimes are expected to be prosecuted as ordinary crimes, such as murder, rape, and organized crime.[136] However, ordinary crimes may not capture the gravity of the crimes that were likely committed. Unlike ordinary crimes, crimes against humanity are defined by the widespread or systematic nature of their commission, as part of an “attack,” or state or organizational policy, against a civilian population.[137]

In addition, prosecuting the abuses as though they were ordinary crimes may not address the needed range of liability. For example, modes of liability in international law, such as “command responsibility,” can be important to encompass liability beyond physical commission of the crime. [138] While some sources indicated that suspects could be charged with complicity under Guinean law to address responsibility by those who did not physically commit the crime, it is not clear that complicity would effectively cover the full scope of command responsibility, which encompasses military and civilian commanders whose subordinates commit international crimes, and who knew or should have known about these crimes, and failed to prevent them or hand over those who carried them out for prosecution.

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, as is a law that incorporates a specific crime of torture consistent with Guinea’s obligations under the Convention against Torture.[139]

Since these crimes were already established as such under international law, prosecuting crimes committed prior to their domestic codification in Guinean law would not violate the principle of non-retroactivity.[140] Notably, the minister of justice has indicated interest in Guinea moving forward with enacting ICC implementing legislation and the European Union has indicated willingness to support this initiative with technical expertise.[141]

The death penalty is also available as a punishment. While interlocutors indicated that a moratorium on the death penalty exists in practice in Guinea,[142] this does not guarantee that the death penalty will not be imposed.

Human Rights Watch opposes the death penalty in all circumstances due to its inherent cruelty. Moreover, international human rights law favors severely restricting, if not directly abolishing, capital punishment.[143] Recent state practice recognizing that the death penalty violates basic human rights has fuelled a growing global movement to eliminate it.[144] Imposing the death penalty moreover can send the message of exacting vengeance rather than rendering justice. The statutes of various international and hybrid international-national courts, as well as the ICC’s Rome Statute, notably do not permit the death penalty.

The Justice Ministry and parliament, once elected, should remove the death penalty as an available punishment.