The Mengistu Genocide trial in Ethiopia

Journal of International Criminal Justice

Volumn 5, Issue 2, 2007, Pages 513-528

  Tiba, Firew Kebede ^a  

^a UNIVERSITY OF HONG KONG   (Hong Kong)

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EID: 34547096531     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqm021     Document Type: Article

References (42)

1. Special Prosecutor v. Col. Mengistu Hailamariam et al., File No. 1/87, Ethiopian Federal High Court. The first charge was filed on 13 December 1994, and most of the accused were put in custody in May 1990 when the military regime collapsed. The total number of accused convicted under this file is 55.
2. There are cases with 200 accused joined together in a single file, with over 225 counts and up to 1471 witnesses. Representative files include Special Prosecutor v. Kassayie Aragaw et al., File No. 923/89 and Special Prosecutor v. Debela Dinsa et al., File No. 912/89, Ethiopian Federal High Court.
3. Art 78(2) and 80(2) of the Constitution of the Federal Democratic Republic of Ethiopia.
4. See Human Rights Watch Report, 1997, available at http://www.hrw.org/ reports/1997/ethiopia/Ethio97d-03.htm (visited 2 March 2007).
5. 'Former Ethiopian Dictator Convicted of Genocide', International Herald Tribune, 12 December 2006, available at http://www.iht.com/ articles/ap/2006/12/12/africa/AF.GEN.Ethiopia.Dictators.Trial.php (visited 27 February 2007).
6. Special Prosecutor v. Dr. Geremew Debele, File No. 952/89, Ethiopian Federal High Court. The defendant was a former Minister of Agriculture and received an 8-year sentence on charges relating to abusing employees of the central slaughterhouse and by the time of the conviction he had already served his sentence.
7. A list of the names of these 60 persons can be found at http://www.ethiopians.com/qey_shibir.htm (visited 27 February 2007).
8. See http://www.scaruffi.com/politics/dictat.html (visited 27 February 2007).
9. For a general account see, B. Thin, To Kill a Generation: The Red Error in Ethiopia (Washington: Free Ethiopia Press, 1989);
10. see also D.W. Giorgis, Red Tears: War, Famine, and Revolution in Ethiopia (Trenton, NJ: Np. 1989).
11. On this it suffices to refer to annual reports of international human rights institutions such as Amnesty International, Human Rights Watch, as well as US State Department Reports. For example, Human Rights Watch Report, 'Ethiopia: Reckoning Under the Law'. Vol. 6. No. 1 (December 1994), available at http://www.hrw.org/reports/pdfs/e/ethiopia/ ethiopia94d.pdf visited 1 March 2007);
12. see also Human Rights Watch Report 1997, supra note 4 and Amnesty International Report on Ethiopia, 1997, available at http://www.amnesty.org/ailib/aireport/ar97/AFR25.htm (visited 2 March 2007).
13. It appears that this hospitality is a favour in return for Mengistu's contribution to Zimbabwe's independence struggle.
14. Art. 113 - Where it is doubtful what offence has been committed 1. If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed the offence which appears the more probable to have been committed and he may be charged in the alternative with having committed all other offences which the facts which can be proved might constitute.
15. Art. 281 of the 1957 Ethiopian Penal Code (now Art. 269 of the 2004 Criminal Code of the Federal Democratic Republic of Ethiopia): Art. 281. Genocide; Crimes against Humanity Whosoever, with the intent to destroy, in whole or in part a national, ethnic, racial, religious or political group, organizes, orders or engages in, be it in times of war or in the times of peace: (a) killings, bodily harm or serious injury to the physical or mental health of members of the group, in any way whatsoever; or (b) measures to prevent the propagation or continued survival of its members or their progeny; or (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 punishment from five years to life, or, in cases of exceptional gravity, with death.
16. Special Prosecutor v. Col. Mengistu Hailemariam et al., Ruling on Preliminary Objections, 10 October 1996 File No. 1/87, Ethiopian Federal High Court, cited in D. Hailegebriel, 'Prosecution of Genocide at International and National Courts: A Comparative Analysis of Approaches by ICTY/ICTR and Ethiopia/Rwanda', a dissertation submitted in partial fulfilment of the requirements of the degree LLM (Human Rights and Democratisation in Africa), Faculty of Law, University of Makerere, 31 October 2003, at 16. Available at http://www.up.ac.za/dspace/bit-stream/ 2263/1072/1/hailegebriel.d.1.pdf (visited 24 January 2007).
17. Judgment, Dissenting Opinion, Special Prosecutor v. Col. Mengistu Haialemariam et al., File No. 1/87, Ethiopian Federal High Court, 12 December 2006.
18. Sentencing judgment, Special Prosecutor v. Col. Mengistu Hailemariam et al., File No. 1/87, Ethiopian Federal High Court, 11 January 2007. For the text of the sentencing judgment (Amharic version) see an online version of a widely circulated local newspaper at http://www.ethiopianreporter.com/modules.php?name=News&file= article&sid=11310.
19. For the dissenting opinion on the sentencing judgment see, http://www.ethiopianreporter.com/modules.php?name=News&file= article&sid=11309 (sites visited 18 January 2007). All translations are mine and are not official.
20. These aggravating circumstances, amongst others, were: 1. the accused intended, planned, instigated and assisted in the execution of the plan using the country's resources, institutions and government power; 2. The victims were in the custody of the institutions run by the accused; 3. The commission of the crimes under such circumstances shows that the accused were willing and had the resolve to commit the crimes; 4. The accused continued to commit the criminal acts for several years and did not show any remorse at that time and at present; 5. Their sentence should be aggravated, in view of the above reasons and the number of counts of which they were found guilty. Some of these aggravating circumstances are listed under Art. 84 of the Criminal Code of the Federal Democratic Republic of Ethiopia. The sentencing judgment relies on this newly amended Penal Code, but there is no substantive difference on sentencing between the provisions of the 1957 Penal Code and the 2004 Criminal Code of the Federal Democratic Republic of Ethiopia.
21. Sentencing judgment, supra note 15.
22. Sentencing judgment, supra note 15. Emphasis added.
23. The following were raised by the accused as mitigating grounds: 1. There was an ongoing power struggle and rivalry between the military and the opposition at the time of the commission of the crimes and this need to be taken into account in determining the penalty; 2. The accused do not have prior criminal records and have made contributions to their country during the commission of the crime; 3. The accused are now old and have been in custody for many years (15 years) and as a result their families are dispersed and suffering from several ailments; 4. The accused have shown remorse for the harm caused by the crime and to this end have requested the government to facilitate forums to enable them to apologize in public to the victims and the people; 5. Some of the accused had a low education level and had no legal knowledge when they committed the crimes; 6. The punishment should be proportional to the crimes committed by each individual. The purpose of punishment is to reform, and the accused want to be given the opportunity to go back to, and serve society and make up for what they caused.
24. Art. 86 of the 2004 Ethiopian Criminal Code:
25. see infra note 26.
26. In particular the Court noted: 'Therefore, the situation that prevailed at the time had contributed to the commission of the crimes for which the accused are found guilty. In addition and in view of the fact that the accused had a low education level, it is not difficult to see that they lacked the knowledge of public and civil administration. This situation seen cumulatively with their military past had influenced them in taking a heavy handed approach in quelling the violence, and overcoming the obstacles and the threats they faced. This had made them believe that the actions they took were appropriate under the circumstances.' (Sentencing judgment, supra note 15).
27. Art. 82 - General Extenuating Circumstances 1. The Court shall reduce the penalty within the limits allowed by law (Art. 179) in the following cases: (a) when the criminal who previously of good character acted without thought or by reason of lack of intelligence, ignorance or simplicity of mind; (b) when the criminal was prompted by an honourable and disinterested motive or by a high religious, moral or civil conviction; (c) when he acted in a state of great material or moral distress or under the apprehension of a grave threat or a justified fear, or under the influence of a person to whom he owes obedience or upon whom he depends; (d) when he was led into grave temptation by the conduct of the victim or was carried away by wrath, pain or revolt caused by a serious provocation or an unjust insult or was at the time of the act in a justifiable state of violent emotion or mental distress; (e) when he manifested a sincere repentance for his acts after the crime, in particular by affording succour to his victim, recognizing his fault or delivering himself up to the authorities, or by repairing, as far as possible, the injury caused by his crime, or when he on being charged, admits every ingredient of the crime stated on the criminal charge.
28. Art. 179 - Ordinary mitigation In all cases where the law provides that the Court mitigate the penalty under this Article, it shall, if it deems the mitigation justified, pronounce: (a) instead ot capital punishment, rigorous imprisonment from twenty years to life; (b) instead of rigorous imprisonment for life, rigorous imprisonment from ten to twenty years;
29. Sentencing judgment, supra note 15.
30. Sentencing judgment, supra note 15.
31. Art. 86 - Other General Extenuating and Aggravating Circumstances The Court shall give reasons for applying general extenuating (Art. 179) or aggravating (Art. 182) circumstances not expressly provided for in this code and shall state clearly its reasons for such application.
32. The dissenting judge relied on Arts 84 and 184(1) of the Criminal Code. Art. 84 lists grounds based on which a sentence may be aggravated. Art. 184(1) regulates how a sentence is to be aggravated in cases where concurrent crimes were committed.
33. He contended, among others, that the crimes were committed over a long period of time and were not a result of a sudden confrontation with the victims; the showing of good behaviour by the accused while in custody is relevant for parole consideration and not for penalty mitigation; their request to apologize came only after they were told that they had a case to answer and was not early enough; the age of the accused was relevant only to determine the maturity of a defendant at the time of the commission of the crime and not relevant to penalty mitigation.
34. For those sentenced to life, there is a possibility of being released on parole. Thus, those who have served two thirds of their sentence or 20 years (whichever is longer) in case of life imprisonment may be released on probation if their conduct while in prison has been satisfactory (Art. 202 of the Criminal Code of the Federal Democratic Republic of Ethiopia). Accordingly, since 30 of the 55 convicted have been in prison for the last 15 years they could be released in between 2 and 5 years' time.
35. Italy has refused to hand them over for the last 15 years because of the death penalty issue. At the moment, there cannot be any reason for such refusal unless the Federal Supreme Court reverses the sentence imposed by the Federal High Court. Some of those who took refuge have already died at the premises of the embassy.
36. There has been one notable case of a defendant returned to Ethiopia following deportation from the United States. This resulted from a claim brought against him by victims in a US court under the Alien Tort Claims Act. As he was found to have been implicated in torture, he was stripped of his US citizenship and deported to Ethiopia: Negwo v. Abebe-Jira United States Court of Appeal for the Eleventh Circuit, Case No. 93-9133. His deportation was made possible by virtue of the Anti-Atrocity Alien's Deportation Act of 2001.
37. He stated the following: 'The writer, as a judge of the Federal High Court of Ethiopia and trying the majority of these cases, witnesses that it is hardly possible to say that the indigent accused charged with genocide crime, except the top officials of course, are provided with proper legal assistance. The defence counsel office both in terms of quality and quantity is not in a position to carry out this sombre responsibility. As stated above, one defence counsel is assigned for a large number of accused and this results in him (sic) not knowing that some accused are assigned to him. To put it differently, let alone to understand each case and prepare for the proceeding, the counsel may not even know properly the accused themselves. There is no possibility for the counsel to conduct defence investigation and collect relevant evidence to the case. The counsel comes to know defence witnesses only on the date of their hearing, equally with the court and the prosecutor. As a result, the counsel does not know what the defence witness is going to testify. There are instances whereby the defence witness turns out to be prosecution witness and testify against the accused. The inefficiency of the defence counsel is expressed even to the extent of failing to know how to conduct cross-examination. It is common to see questions raised that support the case of the prosecution rather than in the defence of the accused. As a result, the accused have on several occasions sought permission of the court to conduct the examination by themselves and have even by (sic) withdrawn their counsel,' (Hailegabriel, supra note 13, at 26-27).
38. They regard the imposition of life sentence as a lenient punishment. For instance, one of the victims, whose father was one of the aristocrats summarily executed after the revolution, finds it ironic that the same people who killed elderly people including the 83-year old emperor, are invoking old age as an extenuating circumstance. For an interview in Amharic with the victim families and representatives of the victims group see, http://www.ethiopianreporter. com/ modules.php?name=News&file=article&sid=11328;
39. see also http://www.ethiopianreporter.com/ modules.php?name=News&file=article&sid=11327 (sites visited 18 January 2007).
40. For instance see, 'Red Terror' Hard to Forgive, BBC Africa Live, 31 July 2003, available at http://news.bbc.co.uk/2/hi/africa/3112875.stm (visited 27 February 2007).
41. O. Gruduah, 'Zenawi's Moral Authority to Try Mengistu Questioned', The Daily Nation, 20 January 2007, also available at http://www.mahder.com/News/article/sid=559.html (visited 27 February 2007).
42. For such views see, 'No Justice for Red Terror', 23 February 2004, by Mesfin Woldemariam, a notable dissident, academic and formerly Chair of the Ethiopian Human Rights Council (EHRCO) and presently in prison in connection to the post: 'May 2005 Ethiopian Election Arrests', available at http://www.news24.com/News24/Africa/News/0,,2-11-1447.1488204,00.html (visited 27 February 2007).