Introduction – The 2009 Guinea Stadium Massacre
The right to publicly assemble and protest is a key element of democracies worldwide. For civilians living under democratic governments, losing these rights is inconceivable. The erasure of freedom of speech creates fertile ground for human rights violations – as was the case in Guinea in 2009 when the country was subject to authoritarian and military rule.
Before 2008, Guinea was categorized as a constitutional republic with the governmental power concentrated mainly in the hands of the then President Lansana Conté. In December 2008, a coup d’etat overthrew the previous government and established a military junta represented by a National Council for Democracy and Development (CNDD). The junta was led by Captain Moussa Dadis Camara, who became the president of the CNDD and self-appointed head of state.
On September 28, 2009, tens of thousands of Guinean civilians gathered in Conakry Stadium in the capital, Conakry, for a peaceful pro-democracy protest against the military regime. In response, Camara ordered armed forces to open fire on the crowd. Armed militants massacred 157 protesters, sexually assaulted 109 women, and left 1,253 others injured. Camara remained in power for a year following the massacre before he was exiled. Following Camara’s exile, Alpha Condé was elected as the president of Guinea under the country’s first democratic regime. On October 14th, 2009, the ICC’s Office of the Prosecutor opened a preliminary investigation over the Guinean government’s handling of the case to decide whether the ICC should proceed with its case.
In September 2009, the authoritarian head of state Moussa Dadis Camara, stifled the public’s right to protest. Several international communities later recognized the massacre as a crime against humanity. In December of 2009, the United Nations declared the massacre a crime against humanity and specified that Camara and his militants possessed “individual criminal responsibility” for the mass killing. In February 2010, the deputy prosecutor of the International Criminal Court publicly declared Moussa Dadis Camara’s “atrocious crimes” as crimes against humanity, again due to the mass killing and “unprecedented sexual violence”.
While the International Criminal Court opened an investigation into the massacre in October 2009, the former head of state and military officials were not convicted for their crimes until 15 years after the massacre. The ICC Office of the Prosecutor opened an initial investigation into the massacre to ensure domestic courts were capable and willing to prosecute the 2009 military offenders. Despite the Guinean courts not opening a case for years after the massacre, the ICC did not interfere in the case, leaving victims without justice until 2024. This justice has since been called into question following the presidential pardon of Moussa Dadis Camara in March 2025. While the ICC’s Rome Statute makes clear that the ICC will proceed with a trial if a country demonstrates it is unwilling or unable to carry out a prosecution, the ICC did not interfere with the Guinea 2009 Massacre.
Given the extended delay in domestic prosecution of those responsible for the 2009 massacre, arguably, the ICC had sufficient grounds to open a case under Article 17 of the Rome Statute. The Guinean government’s inability, and apparent unwillingness, from 2009 to 2022 to pursue timely accountability raises important questions about the Court’s application of complementarity. Moreover, the recent pardon of Moussa Dadis Camera further calls into question the government’s willingness to enforce justice for the massacre victims.
While Article 17 indicates the right to intervene when governments demonstrate inadequate responses to crimes against humanity, the right to intervene is not a necessity; however, when comparing the ICC’s response to the 2009 Guinea Stadium Massacre with its handling of similar violations of the Rome Statute, clear inconsistencies emerge.
It is worth noting in recent decades, scholars have criticized the ICC’s prosecution of African leaders, often concluding that the Court applies double standards and holds African leaders to higher levels of accountability than their Western counterparts. More critical arguments depict the ICC as a modern manifestation of neo-colonialism. Although the decision to not prosecute in Guinea delegates power to local authorities and appears to move away from double standards, it nevertheless raises questions about the Court’s adherence to Article 17. A broader conversation remains about whether raising accountability standards globally, rather than selectively, would better fulfill the principle of consistent application under Article 17 .
Background – Guinea’s ICC Membership and Challenges of Domestic Prosecution
Each country that is a member of the ICC ratifies the Rome Statute thereby agreeing to uphold international legal standards. Member states that violate these standards are subject to investigation, trial and punishment under the jurisdiction of the ICC. Guinea is one of the 125 member states of the ICC. Guinea became a signatory when they ratified the Rome Statute on July 14, 2003. Article 1 of the Rome Statute states the ICC has the power to “exercise its jurisdiction over persons for the most serious crimes of international concern”. Following, Article 5 names the most serious of crimes as genocide, crimes against humanity, war crimes, and crimes of aggression.
Furthermore, Article 17 of the Rome Statute, titled Issues of Admissibility, outlines the qualifications for a case to be tried by the ICC. Specifically, the article details that the ICC has the right to interfere if the member state is “unwilling or unable” to solve a case or demonstrates any attempts to shield a criminal from responsibility. The ICC’s informal excerpt paper on The Principle of Complementarity in Practice, includes a list of potential circumstances which indicate unwillingness or inability to prosecute guilty parties. Examples of unwillingness typically involve deliberate governmental actions that obstruct legal proceedings, such as withholding critical information, causing unjustified delays, shielding defendants or demonstrating a lack of impartiality. Meanwhile, inability refers to structural or practical deficiencies – such as a weak judicial system or a shortage of qualified prosecutors, judges, investigators, and other essential personnel.
In 2021, the Office of the Prosecutor and the Republic of Guinea signed a Memorandum of Understanding, which welcomed the official opening of a trial in the Dixinn Criminal Court and emphasized the role of the ICC as a complementary institution. On June 10, 2024, former head of state Camara and the militants responsible for the 2009 massacre were convicted of their crimes as crimes against humanity.
According to Human Rights Watch, in April of 2018, a steering committee was established to ensure the victims of the 2009 massacre received justice. The committee’s responsibilities included practical tasks such as organizing the trial and ensuring its feasibility both in terms of security and finances. The steering committee comprised the Justice Ministry, the General Prosecutor, and representatives from the United Nations. A Human Rights Watch report concluded that, under Alpha Condé’s administration (2010–2021), the executive branch did not fully commit to its steering committee obligations. The committee, which was supposed to meet every other week, only met “intermediately,” meaning that meetings occurred irregularly and without consistent adherence to the intended biweekly schedule. As a result, judges, unsure of how to proceed without direction from the newly established executive branch, hesitated to proceed with the trial.
Another Human Rights Watch article explicitly declared the Guinea government took “too few meaningful steps to support justice for victims of the September 28 massacre, rapes, and other abuses” – signaling a clear breach of Article 17 of the Rome Statute. The article argues that under Condé’s administration, the executive branch’s lack of full commitment to prosecuting Camara and his military officials was evident in the state’s failure to effectively support the Steering Committee effectively.
Eventually, the ICC’s Office of the Prosecutor released a statement supporting and encouraging a domestic approach to the case. At the time, the President of the Association of Victims articulated the Prosecutor’s approach to the Guinean Massacre as a novel and unique approach that prioritizes solving humanitarian rights crises at the domestic level as opposed to pushing cases to the ICC.
Legal Argument – Varied Applications of Complementarity in the Rome Statute
The 2009 massacre violated both Article 7 (b) extermination and (g) rape as crimes against humanity. Guinea ratified the Rome institute in July 2003—just six years before the 2009 massacre. As a result of the severe delay in proceedings, the crimes that took place on September 28, 2009, fell within the jurisdiction of the International Criminal Court. Although the Condé administration started the preliminary investigation into the massacre, the administration never proceeded with a trial. It was not until the Condé administration was overthrown in 2021 and the Republic of Guinea and the Office of the Prosecutor signed an agreement in 2022 that the case was officially opened. The judicial branch under former President Condé, elected in 2010, had an entire decade to launch a trial to prosecute the 2009 offenders, during which the judicial branch did not. An article by Human Rights Watch details how the Guinean Judicial branch struggled to take timely action because of a lack of clear direction from the executive branch. Additionally, the article states that the courts had several resource constraints because the executive branch did not allocate sufficient resources. Both explanations of the logistical barriers to the functioning of the Dixinn Court would make the case admissible to the ICC under Article 17 of the Rome Statute as they demonstrate an inability to handle the case in a timely manner.
Article 17 of the Rome Statute clarifies that if a country is deemed “unwilling or unable” to address violations of international humanitarian law, the ICC has the right to intervene. In the case of the Guinea government’s handling of the 2009 Massacre during the Condé administration, the state’s prolonged inaction from 2009 to 2022 was an indicator of unwillingness. The delay persisted until a new administration came into power in 2022. Furthermore, the executive branch’s inconsistent engagement with the Steering Committee, established to guide the trial process, indicates a lack of institutional support and a potential breach of impartiality. According to the Human Rights Watch, the government also demonstrated an inability to prosecute the case. In addition to a judiciary described as “chronically underfunded and neglected,” a lack of proper security for judges further stalled proceedings.
In a statement released by the Office of the Prosecutor (OTP) following the formal conviction of Camera and the guilty military officials, it was noted that “Guinea provided a strong example of how effective complementary and efficient cooperation can close impunity gaps and reduce the need for the Office of the Prosecutor.” In an article published by the International Federation for Human Rights, the author highlights that the OTP adopted a different approach than that taken by previous ICC prosecutors, placing a greater emphasis on the importance of serving as a complementary resource as highlighted in the Rome Statute Article 1. The Condé administration failed to bring the case to trial. It wasn’t until the Condé administration was overthrown by a military coup that the following government signed the memorandum with the OTP. Prior to the military coup, the prosecutor could have called to open a trial in accordance with Article 29 of the Regulations of the Office of the Prosecutor, which stipulates a prosecutor open an investigation if the national government demonstrates an inability to launch a trial itself.
While the OTP had the authority to open an investigation into the 2009 Guinea Massacre, this authority did not impose an obligation to intervene; nevertheless, contrasting the ICC’s response to the Guinea case with its handling of similar cases reveals notable differences in the ICC’s approach.
To illustrate, in Kenya, following the 2007 presidential election, several instances of severe post-election violence were reported and categorized as crimes against humanity. In just over three years following the instances of election violence, the ICC’s Prosecutor advanced the Court’s involvement from a preliminary examination to a formal investigation. By 2010, the Prosecutor had identified six alleged perpetrators and reported to the Pre-Trial Chamber to request summonses to appear, initiating the formal judicial process against them.
Meanwhile, in the case of the 2009 Guinea Stadium Massacre, the ICC Prosecutor maintained the status of preliminary examination for over a decade. While some progress was made in recent years through cooperation with Guinean authorities, the case remained stalled both at the ICC and domestically.
Because the ICC draws from both civil and common law traditions, one might expect legal precedent to play a guiding role in the outcome of current and future cases. However, there exists a valid counterargument: as a relatively young institution, the ICC has yet to establish a substantial body of precedent, therefore, prior decisions do not hold the same weight as they do for more established courts. Moreover, the theory of precedent in international criminal courts is still evolving. As scholars argue, while patterns of precedent are emerging across international tribunals, it is too early to identify unified and consistent theories of precedent in international law. In retrospect, the Guinea 2009 massacre may have presented the opportunity to strengthen the ICC’s evolving precedent by echoing the framework of past proceedings.
As previously noted, the International Federation for Human Rights commended the ICC OTP’s decision to prioritize domestic proceedings for the 2009 massacre, aiming to avoid unnecessary international interference and uphold national sovereignty. If the ICC is shifting its focus towards strengthening domestic judicial institutions, then Article 17 should be revised to reflect this approach explicitly, ensuring consistency in the application of the Rome Statute to criminal cases.
As outlined in a paper published by the ICC on The Principle of Complementarity in Practice, in the instance of governmental “inaction,” there is no need for the prosecutor to prove that the government is “unwilling” or “incapable” of pursuing justice for victims. As a result, in the instance of “inaction”, a case is automatically admissible under Article 17. Ultimately, since over a decade passed without Guinea taking meaningful steps to prosecute those responsible for the 2009 Stadium Massacre, the case could have been deemed automatically admissible under Article 17. The ICC’s limited intervention despite apparent inaction raises concerns about the inconsistent application of complementarity and the risk of prolonged delays in justice for victims.
Finally, The Principle of Complementarity in Practice (Annex 4 Section 2) outlines several indicators of unwillingness that, while individually insufficient, are essential to consider when assessing the sincerity of domestic proceedings. Two such indicators include: “obvious departures from normal procedures, showing unusual lenience and deference to accused” and “amnesties, pardons, or grossly inadequate sentences issued after proceedings in a manner that brings into question the genuineness of the proceedings as a whole”. In this context, the March 2025, presidential pardon of Moussa Dadis Camara by General Mamadi Doumbouya may be viewed as an indicator—suggesting potential shielding of perpetrators from justice and raising concerns about impartiality.
Conclusion – Clarifying Inaction Under the Rome Statute: Balancing Sovereignty and Accountability
It is important to distinguish between interference and an investigation. Interference suggests that the ICC would have moved forward with a trial, whereas opening an investigation ensures essential steps are taken to determine whether intervention is needed. While respecting national sovereignty is critical, the ICC also has a responsibility to act when domestic proceedings stall. A lack of transition from preliminary examination to a formal investigation risks undermining the very purpose of the ICC.
Amending Article 17(2)(b) to more clearly define what qualifies as an “unjustified delay” could help eliminate prolonged stagnation in domestic proceedings. Introducing a specific timeframe or threshold for what qualifies as inaction may strengthen the credible commitment of signatory states and help prevent decade-long delays, as seen in the Guinea 2009 Massacre Case.
A key counterargument is that the ICC’s authority to exercise jurisdiction does not equate to an obligation to intervene. Future discussions should explore the implication this distinction has on the statute and whether clearer guidelines are needed to avoid prolonged inaction in the case of state failure.
The ICC’s decision to allow Guinea’s domestic courts to handle the case, despite years of government inaction, contrasts with its more interventionist approach in cases like the 2007 Kenyan post-election violence. If the ICC is shifting toward prioritizing domestic autonomy and accountability over direct intervention, the Rome Statute should be revised to explicitly reflect this approach. Ultimately, Article 17 could be amended to establish a clear timeframe for what constitutes “inaction,” ensuring that cases are not left unresolved indefinitely, otherwise, a government could delay proceedings for decades without consequence.
Ultimately, the recent presidential pardon of Camara raises the question of whether the ICC should reassess the admissibility of the Guinea case in light of renewed indicators of unwillingness. If the Rome Statute is to function as a consistent legal framework, such disruptions of conviction outcomes may constitute grounds for reopening a case under Article 17(2)(c), reaffirming the ICC’s role as a safeguard when domestic justice falters.