Following the Historic Trial of the 2009 [Stadium] Massacre, Guinea Should Support the Adoption of a United Nations Convention on Crimes Against Humanity

[Philippe Mawuli Kokou Plagbe is a human rights lawyer and civil society actor from Togo. He is a Fulbright Scholar and recently completed a fellowship at Amnesty International as an International Justice Fellow in Africa (2023-2024).

Oumou Salamata Bah has been a member of the Guinean Coalition for the ICC since 2018.]

On July 31, 2024, the trial of the 2009 massacre in Guinea concluded with a historic decision by the Dixinn Criminal Court which found eight defendants, including a former head of state, guilty of crimes against humanity. On 28 September 2009, the Guinean security forces violently repressed a demonstration organized by political actors against, among other things, Moussa Dadis Camara’s candidacy for the presidency, resulting in several violations of the right to life and attacks on physical and moral integrity, rape and sexual violence, torture and other ill-treatment, as well as arbitrary arrests and detentions. The International Criminal Court (ICC), following a preliminary examination,  and an International Commission of Inquiry established by the United Nations (UN), concluded that the crimes committed during September 28 2009 could be qualified as crimes against humanity. 

Despite the delays, Guinea has shown that it was able and willing to prosecute and try those suspected of criminal responsibility of the 28 September 2009 stadium crimes including a former head of state and former senior military and civil officials. With the conclusion of the trial, the attention of the Guinean authorities should now turn to preventing the recurrence of such crimes. It should also seek to strengthen its legal and institutional framework for accountability of crimes under international law and for reparation for victims and survivors. To begin with, Guinea should support the ongoing process at the UN relating to the proposed Convention on the Prevention and Punishment of Crimes against Humanity. 

Guinea and the UN Draft Articles on Crimes against Humanity

The draft articles for a United Nations Convention on the Prevention and Punishment of Crimes against Humanity (the future Convention) is the product of the work of the United Nations International Law Commission (ILC), a subsidiary body of the UN General Assembly (UNGA)  whose mandate is the codification and progressive development of international law. The ILC has been working to produce a draft since 2014. It adopted the current draft in 2019 following several reports and the incorporation of observations from UN member states. The draft consists of 15 articles and an annex. It proposes an international legal framework that would oblige States Parties to take legislative, administrative and judicial measures to prevent, punish and redress crimes against humanity. 

Discussed for several years at the sessions of the Sixth Committee of the UNGA, the future convention has received fairly good support from African States. On November 22, 2024, the UNGA’s Sixth Committee, governing legal affairs, by consensus adopted a resolution which calls for UN State members to advance to formal negotiations over a Convention on the Prevention and Punishment of Crimes against Humanity. The resolution before its adoption was co-sponsored by 99 states among which 19 are African. Until now, Guinea has been silent on its individual position on the draft Convention or the resolution, including, in October and November of this year, while discussions continued in the Sixth Committee.

Strengthening the Legal Framework on Crimes Against Humanity in Guinea

One of the issues that made the headlines during the trial for the 2009 stadium massacre related to the prosecutor’s request for the reclassification of the charges as crimes against humanity and that of the legal basis on which the defendants could be tried and possibly convicted for crimes against humanity (for instance here; here and here). Guinea ratified the 1998 Rome Statute in 2003, six years before the 2009 massacre. However, it was only in 2016 that it incorporated the provisions of the Rome Statute into its penal code. The Dixinn court granted the request of the prosecutor’s office and concluded that, in accordance with the Guinean constitution, the Rome Statute as a treaty was directly applicable and could constitute a legal basis for the prosecution and punishment of crimes against humanity since Guinea had ratified it well before the events of September 2009. 

While the Rome Statute as incorporated in the Guinean Penal Code provided the legal basis to secure the first ever convictions on charges of crimes against humanity in the country, going forward, Guinea should add to this comprehensive duties on preventing the recurrence and strengthening the legal framework on accountability and reparation of these crimes on its soil and the African region. The future convention gives to Guinea an excellent opportunity to do so. Some examples are mentioned below.

First, on the prevention of the recurrence of the crimes against humanity, the draft articles 3 and 4 of the future convention consecrate an obligation to prevent. Draft article 3(1) of the Convention for instance prohibits that States engage in acts that may constitute crimes against humanity. This is significant considering during the 2009 stadium massacre events, acts qualified of crimes against humanity occurred within the context of the repression of a peaceful demonstration by security forces, organs of the State. Another provision of interest is the paragraph 3 of article 3 which states that ‘No exceptional circumstances whatsoever, such as armed conflict, internal political instability or other public emergency, may be invoked as a justification of crimes against humanity.’. In the context of Guinea, this provision carries great significance knowing that the 2009 stadium massacre occurred in a climate of political tensions between the then ruling military junta, opposition leaders and civil society actors. Also, the history of the country is marked by several successful and unsuccessful coup d’etat (here and here). It is then critical for the country to take the international legal commitment that no situation will ever justify the commission of crimes against humanity.

Draft article 4 lists the specific measures to be taken to fulfill that obligation which are (a) effective legislative, administrative, judicial or other appropriate preventive measures in any territory under its jurisdiction; and (b) cooperation with other States, relevant intergovernmental organizations, and, as appropriate, other organizations. This provision is also of high importance considering the trial could be possible notably due to the cooperation of the Guinean authorities with the UN International Commission of Inquiry and the ICC.

Second, the future convention captures several evolutions of international law regarding  gender-based violence as crimes against humanity. The definition of crimes against humanity in the draft article 2 includes several gender-based crimes, notably rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity as well as persecution on the basis of gender. The 2009 stadium massacre was marked by several acts of sexual violence. The UN International Commission of Inquiry established to investigate the 2009 stadium massacre documented 109 cases of rape or other acts of sexual violence (Para 70 and 93). 

Third, the future convention would complement the Rome Statute provisions which recognize the primacy of the State of Guinea to prosecute and try crimes against humanity under the principle of complementarity (article 17 of the Rome Statute). The future convention follows a similar logic. While it does not create an international court, it will oblige states parties to prevent, prosecute and provide reparation for crimes against humanity. The future convention and the Rome Statute are therefore complementary and mutually reinforcing.

Equipping Justice Actors to Protect the Rights of Parties in Trials

The Guinean justice system distinguished itself by conducting the trial of the 2009 massacre from start to finish, effectively complementing the ICC. However, the trial highlighted several crucial challenges for the Guinean justice system. The trial highlighted several crucial challenges for the Guinean justice system. For instance, challenges remain in relation to the protection and participation of victims considering that the law on the protection of victims, witnesses and persons at risk is still not in force. This was a critical point in the trial as it saw the massive participation of witnesses and victims while the sessions were publicly broadcasted by the media and several defendants had escaped from their places of detention while the trial was ongoing. A Human Rights Group underscored that the safety of the victims constituted a major issue as their privacy and security were not guaranteed neither by law nor by special security measures. Some victims expressed fears in continuing taking part in the trial and decided not to give any further testimony. Draft article 12 of the future convention, while it should be improved, affords rights and protection to the victims, the witnesses and persons at risks. The ILC stated that the draft article 12 in addition to consecrating for the State party the duty ‘to protect from ill-treatment or intimidation those who complain or otherwise participate’ which include ‘the person’s psychological well-being, dignity or privacy.’ (ILC Commentary on the Draft Convention Paragraph 11 to the draft article 12) . While no specific measures have been entrenched in the future convention, the ILC gives as examples of protective measures ‘measures designed to protect the privacy and identity of witnesses and victims; in camera proceedings’ (ILC Commentary on the Draft Convention Paragraph 12 to the draft article 12). 

Ultimately, the trial of the 2009 massacres led to significant progress in the fight against impunity in Guinea. However, to ensure more accessible, efficient, and effective justice, Guinea should support the adoption of an international convention specific to crimes against humanity, thereby strengthening its legal framework. The trial of the 2009 massacres should therefore only be a first step in the fight against impunity for serious human rights violations and crimes under international law in Guinea. Support for the future convention is another crucial step.