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N°2 · English version · 2010 · www.chaos-international.org

The ICC’s normative authority

Crimes committed at Conackry under preliminary examination

By Josepha Laroche
Translation : Naïma Carthew

On 14th October 2009, the prosecutor of the ICC (the International Criminal Court seated in
The Hague) decided to initiate “a preliminary examination” of the brutally deteriorating situation in
Guinea.
On 24th December 2008, shortly after the death of President Lansana Conté who had been in
power since 1984, the military perpetrated a bloodless coup. They vowed to tackle corruption,
nepotism and drug trafficking in the country. Above all, they pledged to ensure a democratic
transition pursuant to which they would relinquish power to the civilians. However Captain Dadis
Moussa Camara, the chief of the junta, has since refused to step down and is considering standing
for election in the polls which have now been delayed until January 2010. A demonstration was duly
organised by opposition protesters on 28 September 2009 at Conakry, during which the army
committed serious human rights violations. Although the number of casualties has yet to be
officially assessed, many observers – including foreign diplomats, journalists and human rights
organisations – claim the number of people killed may have been higher than 150 and that more
than 1,200 were injured.
The following events have contributed to the international context in which the ICC’s
intervention takes place: 1) Karel de Gucht, the European Commissioner for Development and
Humanitarian Aid, has requested on behalf of the European Union that the principal leader of the
coup “be held accountable for his acts before a court for a crime against humanity”. 2) France has
suspended its military cooperation as well as its bilateral assistance and has advised French
nationals to leave the country. 3) The ECOWAS (the Economic Community Of West African States)
has appointed the president of Burkina Faso as “facilitator in the Guinean crisis”. 4) The United States
have called for the junta to resign as well as for free elections and an international investigation into
the incidents. 5) Ban Ki-Moon, Secretary-General of the United Nations, has named an international
commission of inquiry “with a view to determining the accountability of those involved”.

Historical background
The concept of universal jurisdiction was evoked as early as 1872 by Gustave Moynier, co-
founder of the Red Cross. It subsequently resurfaced at the end of the First World War with an
attempt to prosecute the Kaiser Wilhelm II but this attempt was thwarted after the Netherlands
refused to extradite him. The mass extermination by the Nazis of millions of people and the war
crimes committed by the Japanese led to the International Military Tribunal being created at
Nuremberg in 1945 and the Tokyo Tribunal in 1946, although both courts ceased to exist after they
rendered their judgements. The advent of the Cold War as well as the States’ inability to codify
crimes and to reach consensus on the definition of aggression led to the concept of universal
jurisdiction being eclipsed for a further half century. In the 1990’s the United Nations established
temporary international criminal tribunals: 1) The International Criminal Tribunal for the former
Yugoslavia (ICTY) in 1993, 2) the International Criminal Tribunal for Rwanda (ICTR) in 1994, and 3)
the Special Court for Sierra Leone (SCSL) in 2002. However these remain ad hoc arbitration
proceedings and as such the jurisdiction of these tribunals is circumscribed (rationae loci and rationae
temporis).
The ICC is therefore the first permanent international court to be created. Governed by the
Rome Statute, which was adopted by 120 States on 17 July 1998 and entered into force on 1st July
2002 after the required ratification by 60 countries, the ICC’s legitimacy is reinforced by the fact that
it is independent from both the United Nations Security Council and the States.
That investigation may be opened in Guinea in the near future or even that its leaders may be
held accountable for crimes and subsequently tried and punished by the ICC is made possible by the
fact that Guinea is one of the 110 States currently party to the Rome Statute. Had this not been the
case, the United Nations Security Council, whose resolutions are binding on all its members, would
have had to remand the case to the prosecutor, failing which the court’s jurisdiction would have had
to be expressly accepted by Conakry.
The ICC has initiated similar preliminary examinations since its creation, notably in
Afghanistan, Colombia, Côte d’Ivoire, Kenya and Palestine. However the undertaking of such
proceedings does not necessarily lead to an investigation being opened to ascertain whether crimes
against humanity have been committed, particularly since the definition of such crimes, as set out in
Article 7 of the Statute, is very specific. The ICC prosecutor may only exercise jurisdiction in those
cases where the national courts are unwilling or unable to prosecute the perpetrators of the crimes.
To this effect, the principle of complementarity clearly establishes that the ICC’s purpose is to
complement national criminal justice systems and not to act as a substitute thereof.

Theoretical framework
Two notions are of a particular relevance:
1 ICC has the power of an international court vested with supranational authority; its decisions
are binding on the State Parties and restrict their sovereignty.
2 On a wider scale, the ICC’s power demonstrates a slow and deep-rooted trend toward
adjudication of international relations with an increasing number of rules and regulations
established to fight against impunity, and further evidenced by the ever rising restrictive
power of public international law.

Analysis
Although the ICC is the result of an interstate agreement, a considerable amount of
preliminary work was undertaken by an international coalition of humanitarian NGOs. These NGOs
played a crucial role in the ICC’s inception by ceaselessly working to overcome the States’
reluctances and even obstructions. Their significant contribution to the drafting of the Statute is
ratified in the official text. In this respect, the fundamental principles advocated by the ICC evidence
the erosion of national interest as a concept. This does not affect the normative quality of the NGOs’
role or their vigilance as they assist the victims and continue to shape public opinion; nevertheless
their primary purpose is to support the ICC’s work by preventing its exploitation or regression under
any form. Regarding the ongoing repression in Guinea, the FIDH (the International Federation of
Human Rights) is conducting its own investigation in situ and has called for France and the USA to
“react firmly”. In the fight against impunity the work is now divided in an unprecedented manner
between the ICC, the NGOs and the States. For the moment, however, the ICC is examining the
information it has received in order to determine whether crimes falling under its jurisdiction have
been committed. This could lead the ICC to indict Guinean leaders, and possibly a head of state, as
in the case of Sudanese president Omar Al-Bashir.

References
Cassese Antonio, Violence et droit dans un monde divisé, Paris, PUF, 1990.
Delmas-Marty Mireille, Cassese Antonio (Ed.), Juridictions nationales et crimes internationaux, Paris, PUF, 2002.
Delmas-Marty Mireille, Fronza Emanuela, Lambert Abdelgawad Elisabeth, Les Sources du droit international pénal :
L´expérience des Tribunaux Pénaux Internationaux et le Statut de la Cour Pénale Internationale, Paris, Société de Législation
Comparée, 2005.
Garapon Antoine, Des Crimes qu´on ne peut ni punir, ni pardonner : pour une justice internationale, Paris, Odile Jacob, 2002.