On September 28, 2009 in the Guinean capital Conakry, a peaceful demonstration by thousands of people opposing the presidential candidacy of Dadis Camara, then head of the military junta ruling the country, was violently repressed by security forces. A report by an international commission of inquiry set up by the UN Secretary General found that crimes committed during this bloody clampdown constitute crimes against humanity. According to the report, 156 people were killed, 109 women were subjected to rape and sexual violence and hundreds of people to torture or cruel, inhuman and degrading treatment.
A judicial investigation into these events launched by Guinean authorities on February 8, 2010 recently took an important step forward with the indictment of several senior military officers, including Dadis Camara, for crimes including murder and rape. This indictment, of which Camara was informed on July 8, 2015, has provoked an impassioned debate, especially in Guinea. The debate is particularly hot in the context of presidential elections scheduled for October 11 this year, in which Dadis Camara (currently exiled in Burkina Faso) has announced his desire to be a candidate.
We have therefore decided, in all modesty, to contribute to the debate with a legal analysis of whether this indictment could result in a “Dadis case” before the International Criminal Court (ICC), as Guinea has since July 14, 2003 been a States Party to the Rome Statute, the ICC’s founding treaty. For the purposes of this analysis we will first look briefly at the “complementarity” principle of the ICC, and then at how it might come into play in Guinea.
The ICC’s “complementarity” principle
The complementarity principle is at the heart of the way the ICC operates. Under Article 17(1) (a) of the Rome Statute, the ICC cannot take up a case that national authorities are already investigating. It can only do so if those authorities are unable or unwilling to properly conduct investigations or prosecutions. So the ICC must first determine if national procedures are under way, and then evaluate whether the national authorities in question are willing and able to conduct them in a proper way.
For a case that is being investigated or prosecuted nationally to be deferred to national authorities by the ICC it must, according to ICC rules and jurisprudence, target the same person[1], the same behaviour[2] and the same events[3] as those addressed before the ICC.
With regard to the lack of will to investigate or prosecute properly, ICC judges have ruled that the common denominator of circumstances provided for under Article 17(2) of the Rome Statute (biased procedures, undue delays, lack of independence and impartiality) is: “the absence of will to bring the person concerned to justice”[4]. So national procedures may show failings (unjustified delays, lack of independence and impartiality, etc.), but this can only be a reason for the ICC to claim supremacy over the case if these failings show an intention not to bring the person concerned to justice.
With regard to lack of capacity to investigate or prosecute properly, Article 17(3) of the Rome Statute provides for two possible circumstances: partial or total inexistence, or unavailability of a viable national judicial system. “Inexistence” is defined as the partial or total destruction of the State judicial system owing, for example, to conflict or natural disaster. “Unavailability” refers to a situation where the national judicial system does not have the means (statutory, logistical or other) to take the case.
ICC and Guinea
On October 4, 2009, the ICC Office of the Prosecutor announced it was opening a preliminary examination on the situation in Guinea concerning the events of 28 September, 2009. In November 2012, the ICC Prosecutor concluded in a report that the ICC could not take the case because of the judicial procedures already under way by the Guinean authorities regarding these events. This decision was confirmed by a 2014 report of the ICC Prosecutor’s office. So as it stands, the ICC is deferring the case to Guinea under the complementarity principle, deeming that Guinea is carrying out “normally” its obligation to investigate and prosecute.
Nevertheless, since the indictment against Dadis Camara, there has been talk of Guinea “sending” the case to the ICC or transferring him there.
Cases and Situations
Articles 13(a) and 14 of the Rome Statute provide for the possibility that member States can refer a “situation” of suspected international crimes to the ICC and request the ICC Prosecutor to investigate. A “situation” has to fall within general parameters (territorial, temporal and possibly involving certain groups of individuals). Situations have in the past been referred to the ICC by, for example, the governments of Democratic Republic of Congo, Central African Republic and Uganda.
So, according to ICC rules, member States can only refer a situation and not just that of a specific individual. According to that principle, the case of Dadis Camara cannot be “sent” to the ICC.
In addition, given the current status of ICC procedures, it would not serve any purpose. As explained above, the aim of a referral is to seize the ICC of a situation via the Prosecutor. But since October 14, 2009, the ICC is already seized on its own initiative of the September 28, 2009 events in Guinea.
A transfer of the suspect to the ICC also seems unlikely given that, according to the Guinean Prosecutor, the charges against him are comparable to the ICC charges and thus, once again, the complementarity principle comes into play.
Could the situation change?
The situation could change if the Guinean judicial authorities decided to drop the case. This seems difficult and unlikely but in that case, they could refer it to an international judge, or the ICC could claim back the case.
It therefore appears that the indictment of Dadis Camara makes this more than ever a “Guinean case” and makes it more unlikely to be taken up by the ICC. We can only welcome the steps by the Guinean authorities which are in line with the wishes of the victims and the suspect himself, who has repeatedly said he wants to return to his country to face the charges against him. If a trial is conducted in Guinea soon, as promised by the Guinean authorities, this would also be in line with the right of victims to a obtain justice within a reasonable time. Deferring the case to the ICC would likely prolong the case for several years more.
In addition, a trial in Guinea would be an important opportunity to strengthen local judicial capacities in dealing with mass crimes. It could also be integrated into a “Truth, Justice and Reconciliation” approach which we believe is important to help the country emerge from its past of serious human rights abuses committed by its own security forces. If Guinea is really starting to give priority to rule of law and justice, it is thanks not only to the current government but also to the ICC Office of the Prosecutor which, through its constant visits and contacts with government and victims’ associations, has kept the “28 September” case constantly on the agenda.
This article in English is a shortened version of the original analysis. The full version can be found in French on the French pages of this website.
[1] Situation in the Republic of Kenya, The Prosecutor vs William Samoe Ruto and others, ICC-01/09-01/11, Decision relating to the exception raised by the government of Kenya under Article 19-2-b of the Statute, 30 May 2011, para 60.
[2] Situation in the DRC, The Prosecutor vs Thomas Lubanga Dyilo, ICC-01/04-01/06, Decision on request to the Prosecutor for issuing of an arrest warrant under Article 58, 20 February 2006, para 37-39.
[3]Situation in the DRC, The Prosecutor vs Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07, Reasons for the oral decision relating to ICC jurisdiction over the case (Article 19 of the Statute), 16 June 2009, para 70-71.
[4] Ibid, para 76.
