For almost a month, the normal course of the trial into the September 28, 2009 massacre in Conakry, Guinea, has been suspended. On Monday March 4, the Public Prosecutor's Office requested the floor -- just as the long-awaited phase of confrontations between the defendants was due to start, when the judges will be able to call them two by two to clarify opposing versions of the facts. The Prosecutor has a document to distribute to the parties: 32 pages of submissions in support of a request to reclassify the facts as crimes against humanity. Up to now, former Guinean president Moussa Dadis Camara and the ten other defendants have been prosecuted for mass crimes under ordinary Guinean law.
They are accused of having ordered or participated in the massacre of over 150 demonstrators at an opposition rally that was violently crushed by Guinean security forces on September 28, 2009. This request to reclassify the crimes has been voiced by civil parties since the start of the trial. They support the prosecution initiative, pointing out that crimes against humanity are enshrined in the Rome Statute of the International Criminal Court (ICC), ratified by Guinea in 2002 and incorporated into the Guinean Penal Code in 2016.
A case already decided?
On March 4, after debating the case for ten minutes, the court decided to put the trial on hold for two weeks, to allow the defence to study the public prosecutor's brief. The defendants' lawyers are up in arms about the request. “This request is not legally valid," said Dadis's lawyer Pépé Antoine Lamah at the outset of the hearing "As this case is under trial, I find it very inappropriate to put that issue back on the table.”
Lamah added that at the time of the judicial enquiry, all appeals had been exhausted. The matter was appealed and even referred to the Supreme Court. In the end, the Supreme Court decided in favour of prosecution under ordinary law. The charges include murder, assassination, rape and torture, most often on the basis of complicity, since the defendants are not alleged to have directly committed the majority of the incriminating acts.
Reclassification of the crimes as crimes against humanity would not alter the maximum sentences incurred - life imprisonment in both cases in Guinea. But it could give the prosecution new tools, worries the defence. Whereas complicity can be complex to prove, crimes against humanity, which would give this trial another dimension, would enable the prosecution to invoke "command responsibility". The hierarchical superior can be declared responsible for crimes committed by men under his authority if he gave instructions, if he let them happen, if he took no steps to punish them.
Did the Public Prosecutor's Office realize that it lacked the evidence to prove complicity? During hearings over the past few weeks, the prosecutor's office has justified its approach at length from a technical point of view, but has not explained why it is taking this step now, after a year and a half of trial.
The defence was able to develop its arguments in court over three days, between March 18 and 20. On Monday March 18, Almamy Samory Traoré, another Dadis Camara lawyer, was the first to speak before the Dixinn criminal court. He retraced the history of the trial and went back to the ruling dated May 18, 2018, confirming the charges against the former president: "I remind you Mr. President, that the prosecution did not file an appeal against this ruling of the Investigation Control Chamber, which means that the prosecution accepted the principle our clients be judged on the basis of the rules of ordinary law. But the civil party, motivated by the desire for our clients to be tried under the Rome Statute, tried to appeal, and the Supreme Court's decision was final." That appeal was rejected, the lawyer points out.
Wearing a pair of black sunglasses, Lamah then took the floor. "These indictments, issued a year and six months after the opening of the proceedings, are proof that the Public Prosecutor's Office is convinced of Captain Dadis's innocence, as far as his individual criminal responsibility is concerned,” he asserted. The lawyers' monologues lasted for hours. Rarely have the debates in the Conakry stadium massacre trial been so technical, and rarely has the defence been so united.
"Violation of the right to a fair trial"
On March 20, the court announced its decision: it would not rule immediately on the question of requalifying the crimes, which would be decided at the time of judgment. This was not the end of the suspense, but lawyers for the civil parties were satisfied. For them, there is no doubt that the facts will be requalified as crimes against humanity. Even so, they would have preferred the court to rule straight away. This would have made it possible to resume questioning the defendants on the basis of this reclassification. "It was important to give explanations in court so that Guineans could understand what crimes against humanity are," says Alpha Amadou DS Bah, coordinator of the victims' lawyers' collective.
The defence has made no secret of its anger. "We consider that this decision violates the right to a fair trial. This is why we have decided to appeal against this decision,” it said. The defence has gone to the Court of Appeal, and at the last hearing on Monday March 25, it asked for a break in the trial to allow this court to rule. Some of the defendants' lawyers, like Jean-Baptiste Jocamey Haba defending Dadis Camara, threatened to boycott the hearings and lodge a complaint with the Conseil Supérieur de la Magistrature against the president of the tribunal for professional incompetence.
Under pressure, the court finally decided to suspend the hearings again, and announced they would restart on April 2.
THE OPINION OF THE UN COMMISSION OF INQUIRY
Dispatched to Guinea shortly after the massacre of 28 September 2009, the United Nations International Commission of Inquiry had no doubts as to whether or not it was a crime against humanity. It found that "all of the acts (having) been committed within a well-defined perimeter where most of the alleged perpetrators were in close proximity to one another (...) are serious indications suggesting a coordinated and organised attack". But was this a widespread or systematic attack, a necessary constituent element of a crime against humanity? In the commission's view, a widespread attack had indeed taken place, but only "against the civilian female population at the stadium". However, it wrote in its report, "the temporal context of these acts committed on a large scale, mainly during an interval of a few hours in the same day, and the relentless nature of the attack launched simultaneously from several sides of the stadium, in a clear effort to obtain the maximum number of civilian victims, are all indicators of the systematic nature of the attack". Lastly, the attack had been directed against a civilian population, another consubstantial element of the crime against humanity. "The Commission considers that it is reasonable to conclude that the crimes committed on 28 September 2009 and in the days that followed can be qualified as crimes against humanity", it wrote at the time.
