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The Hidden Histories of War Crimes Trials$

Kevin Heller and Gerry Simpson

Print publication date: 2013

Print ISBN-13: 9780199671144

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199671144.001.0001

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Mass Trials and Modes of Criminal Responsibility for International Crimes

Mass Trials and Modes of Criminal Responsibility for International Crimes

The Case of Ethiopia

Chapter:
(p.306) 15 Mass Trials and Modes of Criminal Responsibility for International Crimes
Source:
The Hidden Histories of War Crimes Trials
Author(s):

Firew Kebede Tiba

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199671144.003.0015

Abstract and Keywords

This chapter analyses Ethiopia's mass trials that sought to address the mass atrocities committed during the early years (1974–1980) of the communist regime of Colonel Mengistu Hailemariam and his associates. Specifically, it examines the objections raised by the accused about their convictions based solely on them being members of the Derg. It argues that the courts failed to draw on international criminal law jurisprudence in finding the defendants guilty. The Federal Supreme Court's refusal to order separate trials also made it difficult for the accused to mount a proper defence against the charges.

Keywords:   criminal trials, war crimes, mass trials, Colonel Mengistu Hailemariam, international criminal law, jurisprudence, criminal responsibility

(I) Introduction

Ethiopia responded to the legacy of mass atrocities committed during the early years (1974–1980) of the communist rule of Colonel Mengistu Hailemariam and his associates by instituting a project of mass prosecution. The process reached a climax on 26 May 2008 with the Federal Supreme Court decision in the case of Special Prosecutor v Colonel Mengistu Hailemariam & Others, which upheld the Special Prosecutor’s argument that the life sentence imposed by the Federal High Court was inadequate. The convictions included the crimes of genocide, aggravated homicide, torture, illegal imprisonment and abuse of power. The Court did not elucidate or advance an appropriate theory concerning the mode of criminal responsibility required, even though the main charges generally relied on the assumption that the accused participated in the alleged crimes as co-perpetrators. Instead, the Court merely asserted that their culpability arose from being members of the Provisional Military Administration Council (Derg) and from the fact that they owned or adopted its decisions as their own without protesting for seventeen years.1

Although the judicial process has been overtaken by a political decision to commute the death sentences to life in prison with parole, the Mengistu trial remains significant on many levels.2 Fundamentally, the trial represents the first ever nationally conceived and implemented accountability program in Sub-Saharan (p.307) Africa in the wake of a large-scale atrocity. The magnitude of the trial alone, with all its imperfections, entitles the process to a special place in the history of national accountability projects. Unfortunately, for various reasons, the story of the trial has not been told adequately. Some of the reasons for this will be highlighted in this chapter.3

Needless to say, organizing a large-scale criminal trial is a challenging task anywhere in the world. The difficulty is exponentially multiplied in a developing country like Ethiopia where the legal system is chronically under-resourced. Such trials also risk the possibility of collective condemnation or the accused being found guilty by association. In this case alone, 106 accused were joined together in a single criminal trial. By contrast, the International Military Tribunal at Nuremberg (IMT) tried twenty-four of the most wanted Nazi leaders, while the maximum number of accused joined in a single trial at the International Criminal Tribunal for the former Yugoslavia (ICTY) has been seven. This demonstrates how unwieldy the Ethiopian counterpart has been when compared to similar large-scale trials.

This chapter seeks to challenge the approach taken in the decisions of the Ethiopian federal courts in light of modes of criminal responsibility under international criminal law.4 Specifically, it will examine the objections raised by the accused about their convictions solely on account of them being members of the Derg. The chapter argues that courts failed to draw on international criminal law jurisprudence (such as the concept of joint criminal enterprise or alternative doctrines) in finding the defendants guilty. The muddled conceptual approach to modes of criminal responsibility in these trials has arguably undermined the quality of the decision and its significance for international criminal law. Furthermore, the Court’s refusal to order separate trials has also made it difficult for the accused to mount a proper defence against the charges.

(II) The Ethiopian Red Terror

The full scale of atrocities committed in Ethiopia following the overthrow of the imperial regime in 1974 has yet to be fully told. The 1974 revolution was (p.308) a momentous event in the modern history of Ethiopia. The revolution brought down the three-millennia Solomonic dynasty. Haileselassie I, the last Ethiopian monarch, had been in power for nearly half a century presiding over a semi-feudal economy that relegated the masses to serfdom. His regime’s failure to respond to reform demands over the course of his reign led to a spontaneous mass rebellion and eventually a military coup mounted by the Derg.

The rebellion was initiated by university students, peasants, labour unions, urban dwellers and intellectuals. The army also had administrative issues it sought to be addressed. This subsequently led to the formation of a mobilization committee from various sectors of the army composed of junior officers who took charge of the negotiation with the emperor. The negotiations failed to break the deadlock. Following this deadlock, junior officers from various army divisions sent to Addis Ababa to air their grievances took matters into their own hands and removed the aging monarch from power and established the Derg on 28 June 1974.

The Derg declared the abolition of the imperial regime.5 In a decree that followed two days later, Proclamation No. 2/1967, the members of the Derg, numbering a little over 100, assumed the position of collective heads of states instead of giving power to one single individual. This arrangement changed sometime later when members resolved to empower the Chairman to execute decisions of the general assembly, standing committee and sub-committees.

The assumption and monopolization of power by the military was not acceptable to other organized parties that sought the establishment of a popular government. The ensuing political confrontation ushered in an era of terror that led to the death and injury of tens of thousands of people.6 At the height of this brazen abuse of power, the Derg empowered its security apparatus, urban and rural dweller associations, militias, and revolutionary guards to kill, torture and maim with impunity anybody suspected of being a ‘subversive’, ‘anti-revolutionary’, ‘counter-revolutionary’, or ‘anti people’.7

The charges filed by the Special Prosecutor in all Red Terror cases identify 12,315 individuals as being killed. The courts so far have found that 9,546 of these were indeed victims of the crimes perpetrated during that period. Of these, 228 victims were women and girls.8 Furthermore, 1,500 victims were confirmed by the courts (p.309) as having suffered bodily injury.9 The charges also included 2,681 individuals as victims of torture, of which the courts have confirmed 1,687. Of these, 172 were female.10 These numbers do not necessarily represent the actual number of victims. The number of individuals whose lives were cut short due to the misguided policies of the Derg could run into millions. For example, the forced resettlement programme (1984–6), which consisted of moving hundreds of thousands of peasants from the north of the country to the south, likely for political reasons, caused numerous deaths.11 The plan, which was officially characterized as a famine relief programme, resettled 600,000 people, of which fifteen to twenty per cent (up to 100,000) lost their lives either in transport or upon arrival.12 The deaths were largely caused by malnutrition and diseases. There were also war crimes committed against civilians. In one such incident, in June 1988, government forces using MIG-21 jet fighters and attack helicopters systematically attacked the market town of Hawzen in Tigray from dawn to dusk, killing approximately 2,500 civilians.13

The Red Terror is only one of the many faces of human rights abuses committed during seventeen years (1974–91) of the Derg’s rule. The Red Terror was a campaign of urban counter-insurgency waged in the main cities of Ethiopia between 1976 and 1978 and has been characterized as ‘one of the most systematic uses of mass murder by the state ever witnessed in Africa’ at the time.14 The official phase of the Red Terror (a reaction to what was described as the opposition forces’ White Terror) began on 17 April 1977 with Mengistu’s speech and the symbolic smashing of three bottles in a public square. The three bottles represented the blood of imperialism, feudalism and bureaucratic capitalism.15 This symbolic act of spilling blood was literally applied, with fervent zeal, in the coming years. The brutality of the campaign is best encapsulated by the following paragraph in a Human Rights Watch report:

Bodies were left on the roadside to advertise the killings of the previous night—those who inspected the piles of bodies to see if their friends or relatives were among the corpses were targeted for execution or imprisonment themselves. Relatives were forbidden to mourn. In other cases, relatives had to pay one Ethiopian dollar for each ‘wasted bullet’ in order to have the body returned.16

Even children of tender age were not spared the violence. As a Human Rights Watch report confirms(quoting Rene LeFort): ‘Simply knowing how to read and write and being aged about 20 or less were enough to define the potential or actual “counter-revolutionary”. The authorities were even able to institute a law authorizing the arrest of children between eight and twelve years.’17

(p.310) While the state sponsored violence targeted victims far and wide, the use of violence to achieve political objectives was not monopolized by the Derg. There were indeed several assassinations of those allied to the Derg by radical political groups. In fact, the Derg usually blamed radical opposition elements for firing the first shot, forcing it to respond in kind. Numerous defence witnesses at the Mengistu trial testified about the urban warfare and targeted assassinations that were routinely conducted by hit squads of these radical opposition political forces. Unfortunately, the Special Prosecutor’s mandate did not extend to the investigation of the conduct of forces other than the Derg during the Red Terror. This has had the effect of undermining the objectivity of the trial. In a sense, the trial tells one side of the story and fails to fairly apportion blame, which is critical to the healing process.

(III) Background to the Trial Program

The Transitional Government of Ethiopia, controlled by Ethiopian People’s Revolutionary Democratic Front, an armed group that overthrew the military regime, decided to establish the Office of Special Prosecutor (SPO) in 1992.18 Mr Girma Wakjira was appointed as Special Prosecutor in September 1992 and given the rank of a minister. The law establishing the SPO claimed that ‘heinous and horrendous criminal acts which occupy a special chapter in the history of the peoples of Ethiopia have been perpetrated against the people of Ethiopia by officials, members and auxiliaries of the security and armed forces of the Dergue-WPE regime’.19 It thus instructed the SPO to investigate and prosecute ‘any person having committed or responsible for the commission of an offence by abusing his position in the party, the government or mass organizations under the Dergue-WPE regime’.20

The sheer magnitude of the crimes and the multidimensional nature of the conflict throughout the period of the Derg’s reign made it impossible for the government to comprehensively document what took place, let alone bring all of the suspects to justice. Ethiopia’s choice of prosecution as a transitional justice model means that stories of the sad episode are mainly told through the official channels of court documents and witness testimonies in an adversarial setting. Yet adversarial court proceedings are not necessarily the best mechanisms for getting the true picture of events surrounding the crimes committed.

The trial venues themselves were scattered throughout the country. The principal court with subject matter jurisdiction was the Federal High Court. While the (p.311) Federal High Court trials conducted in the capital in Addis Ababa were occasionally reported, the trials in regional supreme courts barely received attention. This reflects the pattern of publicity experienced by Red Terror victims in regional cities, as opposed to the capital.

All these factors indicate that the story of the Ethiopian trials has not been told adequately to domestic audiences, much less to the global community. Unlike other large-scale trials of a similar nature, the Ethiopian trials were a national affair controlled by Ethiopians with minimal input, especially from international and intergovernmental organizations and international civil-society groups. The establishment of the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone were international initiatives and serve as interesting counterpoints. The early engagement of some foreign governments and international non-government organizations (NGOs) did not continue in Ethiopia due to disagreements with the SPO as to the conduct of the trials.21 In 1994, the SPO decried the lack of support for Ethiopian transitional justice efforts, especially from NGOs, compared to the support given to the El Salvadorean, Chilean, and Argentinian truth and reconciliation commissions. He described his job as being a lonely exercise and expressed frustration at shouldering such a great burden alone.22

The trials in the federal courts were conducted in Amharic, the working language at the federal government, and in working languages of regional state governments in regions with delegated local jurisdiction. To the author’s knowledge, court and prosecutorial documents are not translated into English or any other foreign language. As a result, key documents remain inaccessible to an audience outside Ethiopia. Even in Ethiopia, scholarly research into the trial is minimal. There were some early efforts to monitor the trials and share the findings with civil societies and international institutions, but that effort did not have a significant impact given the lengthy nature of the trials.23

In the legislation establishing the SPO, it was envisioned that the process would establish a historical record of the brutal offences and would educate the people about the need to avoid backsliding into military rule.24 Unfortunately, this ambition has not been realized because the archives of the trials have not been made publicly available. There is, however, an ongoing initiative by the Ethiopian Red Terror Documentation and Research Centre (ERTDRC) to digitize the documentary evidence used in the trials and make it available to the public and researchers. This is a crucial step, considering the wealth of documentary evidence left behind by the Derg.

The process of collecting incriminating documentary and electronic evidence against the accused for the trials was not as daunting as one would expect for such (p.312) high-profile criminal acts. Bureaucrats meticulously documented the actions taken against most of the victims. When the investigation began, the SPO was able to collect over 25,000 pages of government documents25 and conduct approximately 5,000 witness interviews.26 The documents range from death warrants to calculations of the cost of executions to films of torture sessions and bombings.27In 1994, a SPO report indicated that it has ten times more evidence than needed to successfully prosecute several of the detainees and many of the exiles for serious criminal offences.28 Many hope that those documents will be made available for public viewing while the trials are still fresh in the minds of many, but this has yet to come to fruition.

(IV) The Accused

At the beginning of the investigative process, approximately 2,000 former officials were arrested. The overall figure of how many suspects have been arrested throughout the country is still not available.29 In the case of Special Prosecutor v Col. Mengistu Hailemariam & others, seventy-three Derg and 106 non-Derg members were charged. Key accused included Col. Mengistu Hailemariam, Chairman of the Provisional Military Administration Council (PMAC), Chairman of the General Assembly of the PMAC, and Chairman of the PMAC Standing Committee; Major Fikreselassie Wogderes, Secretary for the PMAC General Assembly and its Standing Committee (later Prime Minister); and Captain Fisseha Desta, Secretary for the PMAC and its Standing Committee (later Vice-President). Capitain Fisseha was also a one-time head of the Derg’s Administration and Legal Affairs Standing Committee.30

(V) The Charges

In 1994, after two years of investigation, the SPO filed its first charges with the Central High Court against seventy-three suspects.31 Of these, twenty-one were tried in absentia, including Mengistu, who had gone into exile in Zimbabwe. The SPO believes that up to 300 government and military officials fled Ethiopia when the Mengistu regime collapsed.32

(p.313) The accused were charged with 211 counts of genocide, and alternatively 211 counts of homicide in the first degree and other offences against bodily integrity, including 1,823 killings, 999 acts of bodily harm, and 194 enforced disappearances.33 The accused were classified into three major groups: (1) 146 policy- and decision-makers; (2) 2,433 field commanders who transmitted orders from the first group or initiated their own orders; and (3) 2,619 simple perpetrators.34

As noted above, there was sufficient evidence to implicate members of the Derg in the commission of grave international crimes.35 The first key piece of evidence in this regard concerned the Derg General Assembly’s unanimous decision in November 1974 to execute sixty ex-officials of the imperial regime after discussing each ex-official’s case and the punishment to be meted out.36 The minutes of the meeting contain a list of Derg members who were in attendance. The second key piece of evidence is the instruction given by the Derg Campaign Department (under the direct command of a Derg Standing Committee chaired by Mengistu) to Derg special forces to eliminate those preparing to participate in a May Day demonstration in 1976 organized by the Ethiopian People’s Revolutionary Party (EPRP).37 On 30 April 1976, hundreds of youth were executed throughout the country. These and similar executions were given de jure authorization by Proclamation 121 of 1977, which permitted security forces to take action against the so-called counter-revolutionaries.

According to the first charge, the accused, while collectively running the government,38 publicly encouraged low-level officials, cadres and security personnel to commit crimes in violation of Article 281 and 286 of the 1957 Ethiopian Penal Code. The encouragement allegedly took the form of word of mouth, images, and writings conveyed in public meetings and media announcements. Article 281 deals with the crime of genocide, while Article 286 concerns preparation and provocation to commit crimes of international character, including genocide.

It seems that the Special Prosecutor elected to include the charge of preparation and provocation as a priority because the bulk of the crimes were directly perpetrated by low-level officials who were provoked into committing atrocities by the leaders of the revolution. The low-ranking officials at the various levels of the administrative structure were under the effective control of the Derg, as (p.314) the latter body was in charge of recruiting and arming them.39 The Derg officials also incited low-level officials and security personnel to violence by calling for the elimination of political opponents in public meetings and by transmitting the same message using mass media. Slogans calling for the elimination of anti-people, anti-revolution anarchists, counter-revolutionary reactionaries, the aristocracy, and the bourgeoisie were the most common forms of incitement.40 It was, in fact, not unusual to come across some of these slogans attached to the corpses of those executed during the Red Terror.41

The second charge alleges that the accused as co-offenders committed crimes of genocide directly or indirectly in violation of Article 281(a) and (c), as well as Article 32(a) of the 1957 Penal Code. The relevant sections of Article 281(a) and (c) and Article 32(a)42 are:

Art. 281.—Genocide; Crimes against Humanity.

Whosoever, with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group, organises, orders or engaged in, be it in time of war or in time of peace:

  1. (a) Killings, bodily harm or serious injury to the physical or mental health of members of the group, in any way whatsoever; or

  2. (c) the compulsory movement or dispersion of peoples or children, or their placing under living conditions calculated to result in their death or disappearance, is punishable with rigorous imprisonment from five years to life, or, in cases of exceptional gravity, with death.

Likewise, Article 32 of the Penal Code provides:

Art.32.—Principal Act: Offender and Co-offenders.

  1. (1) A person shall be regarded as having committed an offence and punished as such if:

    1. (a) he actually commits the offence either directly or indirectly, for example by means of an animal or a natural force; or

    2. (b) he without performing the criminal act itself fully associates himself with the commission of the offence and the intended result; or

    3. (c) he employees a mentally deficient person for the commission of an offence or knowingly compels another person to commit an offence.

  2. (2) Where the offence committed goes beyond the intention of the offender he shall he tried in accordance with Article 58 (3).

  3. (3) Where several co-offenders are involved they shall be liable to the same punishment as provided by law.

The Court shall take into account the provisions governing the effect of personal circumstances (Art. 40) and those governing the award of punishment according to the degree of individual guilt. (Art. 86).

The prosecution divided charges in relation to Article 281 into three sub-headings: (1) killing of members of a political group; (2) causing bodily harm (p.315) or serious injury to the physical or mental health of members of a political group; and (3) placing members of a political group or victims under living conditions calculated to result in their death or disappearance. In total, 219 counts of genocide were alleged. The prosecution sought to show that these acts occurred between 1974 and 1983. As a matter of prosecutorial strategy, the prosecution also brought an alternative charge of aggravated homicide in violation of Article 522 of the 1957 Penal Code.

The victims identified in the charges could be classified broadly into four groups.43 The first group included the monarch, members of the royal family, and the aristocracy. In the second group were members of the Derg who died following purges designed to rid the regime of traitors and sympathizers of anti-revolutionary elements. The third group included individuals perceived to be members or sympathizers of the various political parties that stood in opposition to the military regime. In the fourth group were those targeted for elimination for various reasons, such as businessmen who were accused of sabotaging the economy by hoarding and victims of personal vendettas by low-level officials and revolutionary guards.

The political parties in the third group, the Derg’s primary targets during the Red Terror, were numerous and differed in their political outlooks. The most prominent parties promoted socialism as their guiding ideology. Members of the EPRP were the most common targets of Derg’s brutal crackdown. The EPRP was established in April 1972, two years before the Revolution, as a radical and progressive organization composed of students, intellectuals, workers, and peasants rallying against the feudal system.44 The EPRP considered the assumption of power by the Derg as the ‘usurpation of power and called for the immediate formation of a representative and all inclusive provisional popular government which would pave the way for the formation of an elected popular government’.45 The outlawing of the EPRP by the Derg did not stop the Party’s clandestine political activities and quickly led to armed confrontations both in the cities and rural areas. There is disagreement as to who usually fired the first shot, but EPRP members and those perceived to be its sympathizers overwhelmingly faced the brunt of the violence.46 MEISON (All-Ethiopian Socialist Movement) originally aligned itself with the government and played a role in the ideological and armed confrontation with EPRP, but later faced the same fate as the EPRP when its leaders fell out with the Derg. MEISON was composed mainly of intellectual returnees from Europe.

Some other parties were organized along ethnic lines and engaged in insurgency in rural areas. The most prominent ones were the Eritrean Liberation Front (ELF), the Eritrean Peoples Liberation Front (EPLF), the Tigrean Peoples Liberation Front (TPLF) and the Oromo Liberation Front (TPLF). The Derg was finally toppled in 1991 by the collective military might of these liberation parties. Strikingly, (p.316) in keeping with the political craze of the time, most if not all of the parties were proponents of Marxist–Leninist ideology.

(VI) Mode of Criminal Responsibility Issues in the Mengistu Trial

The accused advanced wide-ranging objections to the charges filed against them.47 The objections related to a range of substantive, procedural and institutional aspects of the charges and the trial.48 The Federal High Court dispensed with these objections in its decision on 10 October 1995. In this section, I will examine objections relating to the mode of criminal responsibility.

The key mode of criminal responsibility provisions in the 1957 Ethiopian Penal Code invoked by the Special Prosecutor against the principal accused were Articles 32(1)(a) and (b), which apply to principal offences committed by offenders and co-offenders. According to Article 32(1)(a), a person shall be regarded as having committed an offence and punished as such if: ‘[H]‌e actually commits the offence either directly or indirectly, for example by means of an animal or a natural force; or (b) he without performing the criminal act itself fully associates himself with the commission of the offence and the intended result’ (emphasis added). This makes the direct and indirect participation in the commission of crimes the most important mode of criminal responsibility.

(p.317) As pointed out, the core group of the accused was comprised of members of the Derg. When the Derg collapsed in 1991, seventy-three original members faced prosecution.49 The prosecutor alleged that these members committed crimes in their capacity as members of the Derg General Assembly and as members of committees and sub-committees that were responsible for executive decisions.50 According to the prosecutor, these leaders exercised effective control over the police, security and paramilitary forces who directly committed crimes.51

One of the many objections of the accused related to their individual criminal responsibility in light of their subordinate position to Chairman of the Derg, with whom ultimate power resided. The accused claimed that they could not be held responsible unless they acted ultra vires, because Proclamation No. 110/69, Article 8, gave the Chairman of the Derg sole responsibility of protecting peace and security, maintaining unity of the country and taking action against anti-people and anti-revolution forces.52 The Federal High Court dismissed their objections, stating that this provision did not mean that the Chairman carried out these responsibilities on his own.53 Obviously, even if the Chairman exercised ultimate de jure power, there appears to be no question about the division of labour between members of the Derg’s standing and sub-committees. De jure command may be ascertained on the basis of pre-established official hierarchies, whether in a civilian or a military power structure.54 ICTY and ICTR jurisprudence identifies three general criteria to determine evidence of de facto command for civil and military authorities when de jure power is lacking.55 These are: (i) the power to influence; (ii) capacity to issue orders; and (iii) evidence stemming from the distribution of tasks.56 Thus, the prosecution could have established both the de jure and the de facto power exercised by Derg members. However, neither the prosecution nor the Court took the opportunity and invoked established jurisprudence of international criminal tribunals to demonstrate the de jure and de facto power exercised by Derg members. As a result, they missed the opportunity to solidify the conceptual legal basis on which the defendants were convicted.

The accused also objected to the mode of responsibility by attempting to refute the existence of an overall plan to eliminate political opponents. In its merits decision of 12 December 2006, the Federal High Court held that the accused had taken part in the implementation of the common plan conceived by the Derg.57 It noted that the Derg passed a standing military order between Sene 30/1966 and Tikimit 06/1967 to eliminate individuals and groups opposed to the revolution. According to the Court, the Derg’s announcement following the assassination of prominent figures and members of the former imperial regime (indicating that killing of such people did not amount to a killing of innocents) demonstrated (p.318) that there was a plan to destroy people politically associated with the overthrown regime.58

The Court further noted that the decision made by the Derg in a meeting held on Hidar 10/1969, which permitted every power structure in the Derg to take action against anti-revolution elements, supported the idea that there had been a decision to eliminate political opponents. According to the Court, various actions taken after this decision, such as summary executions, torture and imprisonment, confirmed the Derg’s plan to eliminate individuals associated with the imperial regime and those opposed to the revolution.

The Court additionally held that the willingness of the accused to continue as Derg members after the commission of the crimes demonstrated their continued determination to stand by the Derg’s decision to eliminate political opponents.59 According to the Court, because the Derg could not carry out its functions without its members, its decisions were its members’ decisions, as well.60 Its members owned the Derg’s actions by directly supporting—or by at least not opposing—them, so by continuing as members they thereby helped the group continue to exist.61

It is important to examine analogous international criminal law rules and jurisprudence to make sense of the allegations and defences mounted by the accused in relation to modes of criminal responsibility. In its Lubanga confirmation of charges decision, the Pre-Trial Chamber highlighted the importance of control in the notion of co-perpetration. According to this notion:

The principals of a crime are not limited to those who physically carry out the objective elements of the offence, but also include those who, in spite of being removed from the scene of the crime, control or mastermind its commission because they decide whether and how the offence will be committed.62

Thus, according to the Pre-Trial Chamber, the concept of co-perpetration embodied in Article 25(3)(a) of the Rome Statute coincides with joint control over the crime by reason of the essential nature of the various contributions to the commission of the crime.63 According to the Chamber, the concept of co-perpetration based on joint control over the crime is rooted:

[I]n the principle of the division of essential tasks for the purpose of committing a crime between two or more persons acting in a concerted manner. Hence, although none of the participants has overall control over the offence because they all depend on one another for its commission, they all share control because each of them could frustrate the commission of the crime by not carrying out his or her task.64

The Ethiopian courts had the opportunity to elaborate the concept of co-perpetration in the Mengistu case. Unfortunately, both the Federal High Court (p.319) and Supreme Court failed to create a well-defined theory of individual criminal responsibility of co-offenders.

One of the key objective elements of the concept of co-perpetration is the existence of an agreement or common plan between two or more persons.65 Although the common plan must include an element of criminality, it does not need to specifically be directed at the commission of a crime.66 It suffices:

  1. i. That the co-perpetrators have agreed (a) to start the implementation of the common plan to achieve a non-criminal goals, and (b) to only commit the crime if certain conditions are met; or

  2. ii. That the co-perpetrators (a) are aware of the risk that implementing the common plan (which is specifically directed at the achievement of a non-criminal goals) will result in the commission of the crime, and (b) accept such an outcome.

While one can question whether this objective element of the concept of co-perpetration reflects a rule of customary international law, one can hardly ignore the relevance of the concept for the defence’s argument and the Court’s decision on issues of individual criminal responsibility for genocide in the Mengistu case. For instance, one of the defence’s arguments was that the Derg had no plan to commit genocide, a contention that goes to the heart of one of the objective requirements of the co-perpetration. The Court responded:

[A]‌s it is clearly known, when a government is in power, it does not have only one objective or tasks. It has many objectives and tasks. The evidence submitted by the parties demonstrates this. However, even if many of its objectives were good, the existence of good deeds do not wipe out responsibility for the criminal acts. One cannot say that there was no criminal intention. The main question is whether the accused had the intention to eliminate politically affiliated groups.67

This seems to be in line with the Pre-Trial Chamber’s decision in the Lubanga case, which held that co-perpetrators may well initially set out to implement non-criminal goals and only later agree to commit crimes. The Derg members did not form the Provisional Military Administration Council to commit crimes, but they agreed to eliminate their political opponents after the latter demanded the establishment of a popularly-elected government.

The accused presented a large number of defence witnesses who testified that the Derg had no plan for eliminating their political adversaries. The bulk of their testimony was misdirected, however, toward disproving the existence of a pre-conceived plan to eliminate political opponents. As the Pre-Trial Chamber observed in Lubanga, ‘the agreement need not be explicit and that its existence can be inferred from subsequent concerted action of the co-perpetrators’.68

The second most important objective requirement of co-perpetration based on joint control over the crime is ‘the co-ordinated essential contribution made by (p.320) each co-perpetrator resulting in the realization of the objective elements of the crime’.69 The essential contribution is conditioned on the member’s power to frustrate the commission of the crime by not performing his or her tasks.70 Key Derg members assumed various leadership roles. In addition to being members of the Derg’s General Assembly, which was its highest organ and collectively served as head of state, they also served as members and chairs of different key standing committees and sub-committees that enjoyed tremendous power in implementing General Assembly decisions. It is was thus imperative that the actions of each accused be explained in light of the control requirement and their ability to frustrate the commission of the Derg’s crimes. Unfortunately, the prosecution’s charges as well as the trial and appeal courts’ decisions fall far short of providing a clear picture about each individual’s contribution to the common plan.

The Ethiopian Penal Code does not include planning as a mode of responsibility. But the notion of planning feeds into the notion of common plan by co-offenders. In ICTY and ICTR jurisprudence, the actus reus of planning requires that one or more persons design criminal conduct that results in the perpetration of one or more statutory crimes.71 It is ‘sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct’; but-for causation is not required72 The mens rea of planning requires that ‘the accused, directly or indirectly, intended the crime in question to be committed’.73 In Kordić and Čerkez, it was held that the required intent exists when ‘a person (who) plans an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that plan…Planning with such awareness has to be regarded as accepting that crime’.74 The crimes allegedly committed by Derg members could easily qualify as planning under this framework. Indeed, that framework would have been particularly useful in the case of Derg members who did not sign execution orders or oversaw the liquidation of political opponents. Unfortunately, both the prosecution and the courts again missed the opportunity to use the ICTY and ICTR’s jurisprudence to find the defendants guilty in a manner that would withstand the test of international scrutiny.

Issues of modes of criminal responsibility are also apparent when one looks closely at the defences mounted by individual accused. For instance, two of the accused, Fikreselassie Wogderes (former Prime Minister) and Fissheha Desta (former Vice-President) were able to prove that they were outside the country when some of the specified criminal acts were committed, including the execution of the Emperor as well as the purge and murder of other Derg members. The Court nevertheless held that: (p.321)

[S]‌uch defences are only relevant for a person who is accused of directly and personally committing crimes. The accused in this file were not charged for committing all the crimes. They were accused of causing the crimes to be committed and it is clear that others committed the said crimes. Therefore, it is not necessary for the accused to be physically present and supervise or assist in the commission….The Prosecution’s evidence demonstrated that the crimes were committed by the Derg with the intention and plan of its members and by its institutions. Therefore, the accused could commit the crimes from anywhere.75

The Secretary of the Derg argued that he did not make the decisions to take action against the victims, but merely conveyed, in his capacity as Secretary, the decisions made orally by the Chairman. The Court, however, held that the signatures on the execution and arrest orders showed that he permitted the actions to be taken and there was no indication that he gave the orders in pursuance of the oral decision made by someone else.76 Besides, even if it could be concluded that the Secretary was merely conveying the Chairman’s decision, his signature indicated that he had agreed with the decisions.77 The Court further held that since decisions or guidelines were made by the General Assembly, of which the accused was a member, he was liable in his role as a participant in the Assembly. The accused carried out his responsibility based on the division of labour between the members of the Derg.

In another instance, an accused was able to prove that he had objected to arbitrary killings at the height of the Red Terror. However, the Court held that this isolated act of objecting to mistreatment of political opponents could not absolve him of liability, because the accused was not opposed to the overall plan of eliminating political adversaries.78

Continued membership in the Derg was also considered critical for the conviction of a Derg member who was initially involved in the day-to-day operation of different ministries but was later imprisoned by the Derg for fifteen years. He was nevertheless held responsible for the regime’s decisions.79 In contrast, the forty-first defendant—Corporal Begashaw Gurmesa—was acquitted because he was able to show his opposition to the Derg’s criminal intentions even before he fell out of favour.80 Throughout, the Federal High Court reiterated that the specific responsibilities of a Derg member did not matter; instead, it was sufficient if he/she was a member of the Derg, did not oppose its decisions, and associated himself with its actions.81

The Special Prosecutor appealed the sentencing decision of twenty-one convictees, while another twenty-three cross-appealed. In their appeals, the accused submitted, inter alia, that:

  1. 1. They did not commit the crimes and that none of the prosecution’s witnesses directly and individually implicated them;

  2. (p.322)
  3. 2. their names were not found on the documentary evidence introduced by the SPO and most of the documentary evidence consisted of photocopies, to which the law did not attach great evidentiary value;

  4. 3. [t]‌he Federal High Court found them guilty not because there was specific evidence against them, but merely because they were members of the Derg.

Again, these points of appeal mostly raise issues concerning modes of criminal responsibility.

With regard to its appeal, the prosecution submitted:

The accused are members of the Derg. The Derg is represented by its members and it cannot exist without its members and the decision of the Derg means the decision of its members. The accused remained members of the Derg until the very end and are responsible for crimes committed by the Derg. The accused, as members of the Derg, had planned to eliminate groups organised on political basis. Following their decision to execute members of the former imperial regime, they came up with a general policy of eliminating those opposed to the Revolution and the Derg. They accepted as their own the consequences of the acts committed as per the plan hatched by the Derg. There is no reason why they should not be responsible for the consequences of their policies.82

The Federal Supreme Court affirmed the Federal High Court’s findings in regards to the conviction of those charged in the Mengistu case.83 It held that a decision of the Derg was not the decision of one member or of the few; instead it was a decision of the members as a whole.84 Moreover, it concluded that the members must have accepted the consequences of the Derg’s decisions.85 Continued membership in the Derg led to their liability regardless of their being dispatched to provinces away from where major decisions were made.86

What is most striking here is the Court’s attribution of later criminal acts to the entire membership of the Derg by virtue of the Derg’s earlier collective decision to target persons whose political outlook was similar to the sixty members of the imperial regime who received the first blow and those who were generally categorized as counter-revolutionaries.87 Another decision taken during the Derg’s early rule, which permitted all members to take action against anti-revolutionary elements, was also used by the Court to hold that the actions of the whole could be attributed to the few.

As shown above, both the Federal High and Supreme Courts concluded that the accused’s criminal responsibility could be based on their membership of the Derg. This is a tenuous basis for determining individual criminal responsibility, given that the Derg was not pronounced a criminal organization. While its machinery was no doubt responsible for the many atrocities committed, it is incumbent upon courts to establish a carefully constructed theory of individual criminal responsibility so as not to condemn all Derg members merely by association.

(p.323) (VII) Concluding Remarks

This chapter examined the mode of criminal responsibility adopted in the Ethiopian courts’ decisions in the case of former Derg members accused of committing genocide against their political opponents. The Ethiopian Penal Code contains a concept of co-perpetration as a mode of criminal responsibility that is particularly well-suited to the prosecution of suspects who plan and direct the commission of mass crimes without direct physical perpetration. Although analogous modes of criminal responsibility have been adopted by the ICTY and ICTR, the Ethiopian concept of co-perpetration is most similar to Article 25(3)(a) of the Rome Statute, where reference is made to notions such as ‘co-perpetration’. That similarity is perhaps due to the continental law pedigrees of the Rome Statute and the 1957 Ethiopian Penal Code.

Ethiopia’s mass prosecution of mass crimes committed during the military regime nevertheless raises serious questions about individual criminal responsibility. Although it is possible for a large group of individuals to commit heinous crimes in concert, it is rarely easy to prosecute all of them at once unless all of the suspects contributed equally to the criminal scheme. That is why it is important for the prosecution and courts to have a clear theory of individual criminal responsibility in apportioning guilt. The joint trial of well over one hundred individuals is unprecedented in recent history. Although the idea of a joint trial is not a problem in and of itself, assuming that the parties shared criminal intention and carried out certain prohibited acts in furtherance of those intentions, the idea of individual guilt remains fundamental. For justice to be properly served, individual criminal responsibility must clearly be shown to exist. Loose notions such as membership in an organization or non-opposition to criminal actions should not be taken as absolute indicators of culpability. Membership in organization does not necessarily mean that all members enjoy the same power or can frustrate the criminal plan. Nor does non-opposition to a criminal plan mean the non-opposing member took part in the criminal act. Overall, as shown in this chapter, the Ethiopian courts missed an opportunity to benefit from the decisions of international tribunals concerning modes of criminal responsibility. Not only did this affect the quality of the judgements in the Mengistu trial, it also failed to decisively dispel the view that some members of the Derg were found guilty by association. A well-conceived and executed theory of mode of criminal responsibility could have assisted in this regard. Regardless, the Ethiopian trial has at least managed to document the story of victims of the Red Terror, a story which unfortunately remains inaccessible to the wider public and international community. The vast trove of documentary and electronic evidence in the prosecutor’s custody is yet to be digitized and publically distributed twenty years after the commencement of the trials. The language barrier also means that only those with working knowledge of Amharic language are able to do meaningful research into the trial documents. As a result, there has been little research on the trials. The Ethiopian trial is also notable for its inability (p.324) to attract and continuously engage foreign donors who could have financially and technically supported the endeavour.

The trial also failed to give a balanced picture of the conflict as the prosecution was empowered only to investigate and prosecute crimes committed by those in government. Hence the pedagogical value of the trials is somewhat diminished as a result of this selectivity.

Notes:

(1) Special Prosecutor v Colonel Mengitsu Hailemariam & Others, Judgment, Criminal File No. 30181, Federal Supreme Court, 26 May 2008.

(2) At the prompting of religious leaders, the Head of State President Girma Woldegiorgis exercised his constitutional prerogative on 1 June 2011 and commuted the death sentence imposed on twenty-three former Derg officials convicted of genocide and other crimes. Most of them are now released on parole having served the maximum prison term possible for life sentence under Ethiopian law.

(3) Throughout this chapter, reference is made to the Mengistu trial unless the context suggests that reference is being made to the entire prosecution programme, which encompassed a number of separate trials that were conducted in other parts of the country by regional courts. Unless specified otherwise, all court decisions quoted in this chapter are those of the Federal High and Supreme Courts in the Mengistu trial. Unfortunately, the non-existence of accessible documentation on the regional trials has made impossible the task of analysing these other low-profile cases.

(4) For literature on other aspects of the trial see: Firew Kebede Tiba, ‘The Mengistu Hailemariam Genocide Trial in Ethiopia’, Journal of International Criminal Justice, 5 (2007), 513–28; Firew Kebede Tiba, ‘Prosecuting International Crimes in Domestic Courts: The Trial of Mengistu and Other Derg Members for Genocide, Torture and Summary Executions’ in Chacha Bhoke Murungu and Japhet Biegon (eds), Prosecuting International Crimes in Africa (Pretoria: Pretoria University Law Press 2011), 163–83; Yacob Haile-Mariam, ‘The Quest for Justice and Reconciliation: The International Criminal Tribunal for Rwanda and the Ethiopian High Court’, Hastings International and Comparative Law Review, 22 (1989–99); J.V. Mayfield, ‘The Prosecution of War Crimes and Respect for Human Rights: Ethiopia’s Balancing Act’, Emory International Law Review, 9 (1995), 553–93.

(5) Provisional Military Government of Ethiopia, Proclamation No. 1/1967.

(6) Human Rights Watch, Ethiopia: Reckoning Under the Law, 6:11 (November 1994).

(7) The Red Terror was authorized by Proclamation 121 of 1977: see United States Institute of Peace (1994) Ethiopia: Report of the Office of the Special Prosecutor, <http://www.usip.org/files/resources/Ethiopia-SPODossier-2.pdf> (accessed 25 February 2013) (SPO Report).

(8) Report of the SPO on February 2010 to the House of Peoples Representatives. See the video documentary produced by the state run Ethiopian Television in Amharic which includes the SPO Report as well as Member of Parliament comments. See the video on this video-sharing website: <http://www.ethiotube.net/video/8192/Documentary--findings-of-human-rights-abuses-during- Red-Terror-era--Part-1> (Part I) (accessed 25 February 2013) and <http://www.ethiotube.net/video/8194/Documentary--findings-of-human-rights-abuses-during-Red-Terror-era--Part-2> (Part II) (accessed 25 February 2013). For an immediate reaction to the report in transitional justice context see: Luelseged Degu (11 February 2010), ‘Report from Special Prosecutor Office of Ethiopia: Half-Way Transitional Justice’, Abugida Ethipian American Information Centre [website], <http://www.abugidainfo.com/index.php/13562/> (accessed 25 February 2013).

(9) SPO Report 1994, above n 7.

(10) SPO Report 1994, above n 7.

(11) SPO Report 1994, above n 7.

(12) SPO Report 1994, above n 7.

(13) SPO Report 1994, above n 7.

(14) Africa Watch (September 1991), ‘Evil Days: 30 Years of War and Famine in Ethiopia’, 101, Human Rights Watch [website], <http://www.hrw.org/sites/default/files/reports/Ethiopia919.pdf> (accessed 25 February 2013).

(15) Africa Watch, above n 14, 102.

(16) Africa Watch, above n 14, 103.

(17) Africa Watch, above n 14, 103.

(18) See note 3 above for the coverage of decision leading to the prosecution of those responsible for the commission of crimes as well as the establishment of the Office of Special Prosecutor.

(19) Proclamation establishing the Office of the Special Prosecutor (8 August 1992), Proclamation No 22/1992, preamble, <http://www.usip.org/files/resources/Ethiopia-Charter.pdf> (accessed 25 February 2013).

(20) Proclamation establishing the Office of the Special Prosecutor (8 August 1992), Proclamation No 22/1992, Article 6, <http://www.usip.org/files/resources/Ethiopia-Charter.pdf> (accessed 25 February 2013).

(21) Todd Howland, ‘Learning to Make Proactive Human Rights Interventions Effective: The Carter Centre and Ethiopia’s Office of the Special Prosecutor’, Wisconsin International Law Journal, 18 (2000), 407–35.

(22) SPO Report 1994, above n 7.

(23) The author took part in the Trial Observation and Monitoring Project involving law students in the observation of the trials held in Addis Ababa.

(24) Proclamation establishing the Office of the Special Prosecutor, above n 19, preamble.

(25) Human Rights Watch, above n 6, 23.

(26) Human Rights Watch, above n 6, 23. See also Donatella Lorch, ‘Africa First: Ethiopia War-Crime Trial’, The International Herald Tribune, 12 November 1994.

(27) Lorch, above n 26.

(28) SPO Report 1994, above n 7.

(29) Human Rights Watch, above n 6.

(30) See the charges, judgments and other materials related to the trials published by the Federal Supreme Court (Addis Ababa: Meskerem 2000).

(31) Mayfield, above n 4, 567.

(32) Mayfield, above n 4, 567.

(33) Wondwossen L. Kidane, ‘The Ethiopian “Red Terror” Trials’, in M. Cherif Bassiouni (ed), Post-Conflict Justice (Ardsley, NY: Transnational Publishers Inc, 2002), 682.

(34) Howland, above n 21, 407–35, 426, footnote 51. On indictments in general, see Yacob Haile-Mariam, ‘The Quest for Justice and Reconciliation: The International Criminal Tribunal for Rwanda and the Ethiopian High Court’, Hastings International and Comparative Law Review, 22 (1989–1999), 708–12.

(35) SPO Report 1994, above n 7.

(36) SPO Report 1994, above n 7.

(37) SPO Report 1994, above n 7.

(38) The Derg members formed a collective head of state and made all key decisions in the General Assembly, the Standing Committee, and other sub-committees. The SPO charges alleged that the Derg and its sub-committees had been in effective control of government during the relevant periods. According to the SPO charges, official use of force against victims during this period could be attributed to any Derg member unless evidence to the contrary was provided (for example, by proving that a particular Derg member was opposed to the collective decision taken against victims of the regime): SPO Report 1994, above n 7.

(39) See the charges, above n 30.

(40) See the charges, above n 30.

(41) One of these slogans was in Amharic Qey Shibir Yiffafam, roughly, ‘let Red Terror be intensified’.

(42) Penal Code of Ethiopia 1957, Proclamation No. 158 of 1957, 23 July 1957, available at <http://www.unhcr.org/refworld/docid/49216a0a2.html> (accessed 25 February 2013).

(43) See the charges, above n 30.

(44) ‘Overview of the History of EPRP’, Ethiopian People’s Revolutionary Party [website], <http://www.eprp.com/party/history.html> (accessed 25 February 2013).

(45) ‘Overview of the History of EPRP’, above n 44.

(46) Babile Tola, To Kill a Generation: The Red Terror in Ethiopia (Washington DC: 2nd edn, Free Ethiopia Press, 1997).

(47) Special Prosecutor v Col. Mengistu Hailemariam & Others, Ruling on Preliminary Objections, 10 October 1996, File No. 1/87, Ethiopian Federal High Court.

(48) The objections were: (1) The courts established by the transitional charter have no jurisdiction to try accused charged for commission of the crime of genocide; (2) Bringing the accused before courts is not the transitional government’s regular duty or responsibility; (3) The actions of the provisional military administration as government could not be retrospectively judged as illegal; (4) The 1955 Revised Constitution which was the basis for the adoption of the 1957 Penal Code in its Article 4 as well as Article 2137 of the Civil Code provide immunity from prosecution or civil liability for the Head of State; (5) The cases should not be tried in domestic courts; (6) It is inappropriate for Article 281 of the 1957 Penal Code to include ‘political groups’ in groups protected against genocide; (7) The case of the defendants has not been referred for preliminary inquiry according to Article 80 of the Ethiopian Criminal Procedure Code which requires preliminary inquiry for grave charges such as aggravated homicide; (8) The charge was not brought within fifteen days after the completion of the investigation file as required by Article 109 of the Ethiopian Criminal Procedure Code; (9) This case is not suitable for judicial settlement. The best solution is to seek national reconciliation; (10) The charges are barred by statute of limitation as per Articles 286, 414 and 416 of the 1957 Ethiopian Penal Code; (11) The charge of committing fraud in a name of courts lacks specificity; (12) The inclusion of names of individuals who are no longer alive as co-offenders is prejudicial to their case; (13) Accused other than the top twelve request a separate trial as they are only accused with the top twelve on eighteen counts out of over 200 counts; (14) The charges against the accused are not specific enough or the time and place of commission are unknown, weapons used and the level of participation of each accused in the alleged crimes are not sufficiently specified. This creates suspicion as to whether the alleged crimes were committed; (15) The charges are confusing; (16) The crime of provocation to commit genocide under Article 286 and the crime of commission of genocide cannot be charged cumulatively; (17) It is improper to cite Articles 32(1)(a) and (c) against one accused in respect of one charge; (18) Objection regarding the mention of Article 37(1) of the Penal Code on criminal conspiracy as the provisional military administration council was not created to commit crimes but to lead the country. Furthermore, it is improper to charge them both as co-offenders and co-conspirators at the same time.

(49) See charges, above n 30.

(50) See charges, above n 30.

(51) See charges, above n 30.

(52) Special Prosecutor v Col. Mengistu Hailemariam & Others, Ruling on Preliminary Objections, 10 October 1996, File No. 1/87, Ethiopian Federal High Court, 22.

(53) Special Prosecutor v Mengistu, above n 52.

(54) Ilias Bantekas, ‘De Facto Command’ in Antonio Cassese (ed), The Oxford Companion to International Criminal Justice (Oxford: Oxford University Press 2009), 291.

(55) Bantekas, above n 54, 292.

(56) Bantekas, above n 54.

(57) Bantekas, above n 54, 4–5.

(58) Bantekas, above n 54.

(59) Bantekas, above n 54.

(60) Bantekas, above n 54.

(61) Bantekas, above n 54.

(62) International Criminal Court, Prosecutor v Thomas Lubanga Dylo, Pre-Trial Chamber I, Decision on the Confirmation of Charges, 29 January 2007, [330].

(63) Lubanga, above n 62, [341].

(64) Lubanga, above n 62, [342].

(65) Lubanga, above n 62, [343].

(66) Lubanga, above n 62, [344].

(67) Lubanga, above n 62.

(68) Lubanga, above n 62, [345].

(69) Lubanga, above n 62, [346].

(70) Lubanga, above n 62, [347].

(71) Lubanga, above n 62. See also, International Tribunal for the Former Yugoslavia, Prosecutor v Blaškić, Trial Chamber, Judgment, 3 March 2000, [279]; International Tribunal for the Former Yugoslavia, Prosecutor v Kristić, Trial Chamber, Judgment, 2 August 2001, [601].

(72) International Tribunal for the Former Yugoslavia, Prosecutor v Kordić and Čerkez, Appeals Chamber, Judgment, 17 December 2004, [26].

(73) Blaškić, above n 71, [278]; International Tribunal for the Former Yugoslavia, Prosecutor v Kordić and Čerkez, Trial Chamber, Judgment, 26 February 2001, [386].

(74) See Stefano Manacorda, ‘Planning’ in Cassese, above n 54, 456.

(75) Federal High Court, Judgment on Merits: See the judgment and other materials related to the trials published by the Federal Supreme Court, above n 30, 135.

(76) Judgment on Merits, above n 75, 136.

(77) Judgment on Merits, above n 75.

(78) Judgment on Merits, above n 75, 319.

(79) Judgment on Merits, above n 75, 385.

(80) Judgment on Merits, above n 75, 412.

(81) Judgment on Merits, above n 75, 419.

(82) Mengitsu, above n 1.

(83) Mengitsu, above n 1, 23–25.

(84) Mengitsu, above n 1, 21.

(85) Mengitsu, above n 1.

(86) Mengitsu, above n 1.

(87) At a meeting held on 10 Hidar 1969 it was decided that every member of the Derg was empowered to take action against anti-revolution elements.