Abstract
Criminal accountability as one of the transitional justice mechanisms should be conducted without violating the principle of legality and the fair trial rights of the accused. This presupposes the existence of comprehensive laws at the time the crimes were allegedly committed which incorporate and define the crimes clearly. This chapter analyzes whether Ethiopia had in place an adequate normative infrastructure when embarking on the extensive prosecutions of Derg officials. To do so the chapter deals with the legal regime of Ethiopia for the prosecution of crimes under international law for which Derg officials and other individuals were prosecuted (or should have been prosecuted).
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Notes
- 1.
For the analysis of the prosecution of Derg crimes, see infra Sect. 5.2.
- 2.
More so, when the transitioning state opts to prosecute the serious violations that had been committed as crimes under international law per se.
- 3.
The absence of domestic laws which criminalize jus cogens crimes at the time of commission does not necessarily preclude the prosecution of the crimes before the courts of the state of commission or by other states. Theoretically, the state can retroactively confer on the court retroactive jurisdiction over core crimes and it may successfully prosecute the perpetrators without violating the notion of non-retroactivity of substantive criminal law. This is so because core crimes have attained the status of customary international law. The principle of non-retroactivity does not apply when the crimes in question are already criminalized under international law. Several international human rights law instruments and the practice of regional human rights courts also confirm the exception to the principle of legality /non-retroactivity. See Article 15 of UN 1966, and Article 11(2) Universal Declaration of Human Rights (UDHR). For more, see Articles 57 and 64 Vienna Convention on the Law of Treaties, Court of Justice of the Economic Community of States of West Africa, Hissène Habré v. Republic of Senegal, Judgement, ECW/CCJ/JUD/06/10, 18 November 2010, paras 28 et seq. See also the decision of the European Court of Human Rights (ECHRts) which ruled that the conviction for political genocide under the new Criminal Code of Lithuania is a violation of the prohibition of retroactive application of law. European Court of Human Rights, Vasilaiauskas v Lithuania, Judgement, ECHRts Application no. 35343/05 (2015), paras 169 et seq; and Milanovic, M ‘European Court Tackles the Definition of Genocide ’, EJIL: Talks (2015) available at http://www.ejiltalk.org/european-court-tackles-the-definition-of-genocide/. Accessed 16 June 2016.
- 4.
The Penal Code of 1930.
- 5.
- 6.
- 7.
The Penal Code of Ethiopia 1957. Hereinafter ‘the Penal Code ’ or ‘the Code’.
- 8.
The Criminal Code of the of Ethiopia 2004. Hereinafter ‘the Criminal Code .
- 9.
Compare Articles 281 through 295 of Penal Code with Articles 269 through 283 of the Criminal Code .
- 10.
In this book, core crimes , jus cogens crimes and crimes under international law are used interchangeably to refer to crime of genocide , war crimes and crimes against humanity. However, this is not to say that core crimes are limited only to these three crimes. For detailed discussions on the labeling of the crimes under international law (or truly international crimes), and transnational crimes, see generally, Werle and Jessberger 2014, pp. 30–31; Bassiouni 2013; Cassese 2013, pp. 18–21; Ambos 2013, pp. 54–56; Obura 2011; Bassiouni 1996a, b; Einarsen 2012, pp. 135 et seq.
- 11.
Highlighting the modification made by the new Criminal Code is necessary because the Federal High Court applied the new Code in meting out punishment.
- 12.
Articles 181–295 of the Penal Code .
- 13.
The plausible reasons for including the core crimes under the Penal Code at that time were that: (1) it was part of the massive codification and law modernizing processes that the country was undergoing; and (2) the great danger that the country had experienced during the horrific attack on Ethiopians, mainly civilians, by Graziani after an attempted killing of the latter by two Ethiopians in 1933. The horrific attacks on Ethiopians showed the necessity to have legal frameworks criminalizing crimes under international law . On the horrendous attacks on Ethiopians by the fascist rule, see Campbell 2017.
- 14.
Criminal Code Book III, Title II. In the author’s opinion, the caption is vague if not broad.
- 15.
Crime of aggression was also included albeit not in the same label and scope. See Sayapin 2014, pp. 210, 221.
- 16.
- 17.
Kress has stated that ‘Jean-Paul Sartre’s point may be true that the “fact of genocide is as old as humanity”, but as an international legal concept the crime of genocide is a rather recent arrival.’ Kress 2006, p. 466.
- 18.
- 19.
- 20.
In his seminal short piece, Lemkin eloquently articulated that ‘[w]hile society sought protection against individual crimes, or rather crimes directed against individuals, there has been no serious endeavor hitherto to prevent and punish the murder and destruction of millions. Apparently, there was not even an adequate name for such a phenomenon. Referring to the Nazi butchery in the present war, Winston Churchill said in his broadcast of August, 1941, “We are in the presence of a crime without a name”’, Lemkin 1946, p. 227. See also Kuper 1981, p. 12; Cassese et al. 2001, p. 202.
- 21.
- 22.
The definition of genocide that Lemkin suggested was as follows: genocide is ‘a co-ordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objective of such a plan would be disintegration of the political and social institutions of culture, language, national feelings, religion, and the economic existence of national groups and the destruction of the personal security, liberty, health, dignity and even the lives of the individuals belonging to such groups. Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group’, Lemkin 1944, p. 79.
- 23.
- 24.
Charter of the International Military Tribunal—Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945, Article 6. For detail discussion, see generally Schabas 2007; Cassese 2013; Drumbl 2011; Nersessian 2010; Quigley 2006; McGoldrich et al. 2004; Krammer 2010; Jones 2011; Aarons 2008; Slade 2007; Sneh 2011. For a collection of essays on the Nuremberg Trial, see Mettraux 2008.
- 25.
See Article 5(c) of Charter of the International Military Tribunal for the Far East.
- 26.
See Article II(1)(c) of Allied Control Council Law No. 10.
- 27.
See United States Military Tribunal Sitting at Nuremberg , Greifelt and others, Judgment, in TWC, Vol. 5, 10 (March 1948), pp. 88–167; Shany 2009, pp. 7–9; Ambos 2014, pp. 1–2; and Schabas 2009, pp. 43 et seq. In 1947, the Polish Court in the Hoess case mentioned the term genocide ; see Supreme National Tribunal of Poland, Hoess Rudolf Ferdinand, in LRTWC, Vol.7 March 1948, p. 24, and Supreme National Tribunal of Poland, Hauptsturmfuhrer Amon Leopold Goeth Vol. (27th 31st August and 2nd–5th September 1946, p. 7.
- 28.
Charter of the International Military Tribunal August 1945, Article 6(c); International Military Tribunal at Nuremberg , United States et al v Hermann Wilhelm Göring et al in Trial of the Major War Criminals, Judgement, 14 November 1945. See Jessberger 2009, pp. 90–91; Werle and Jessberger 2014, p. 292; Schabas 2009, pp. 44–46.
- 29.
- 30.
- 31.
UNGA Resolution 1946.
- 32.
On the drafting history of Genocide Convention, see Lippman 1985, pp. 1–65; Robinson 1960; Schabas 2009, pp. 79 et seq; Kress 2006, pp. 465–467; Werle and Jessberger 2014, pp. 291–292; Triffterer and Ambos 2016, pp. 128–129; Ambos 2014, pp. 1–2; -‘Genocide : A Commentary on the Convention’ 58 Yale L. J. (1948–1949), pp. 1142–1160; King et al. 2007–2009, pp. 13–28;
- 33.
It is the first human rights instrument adopted by the UN. The adoption of the Genocide Convention is referred to as ‘a registration of protest against past misdeeds of individual or collective savagery rather than to an effective instrument of their prevention or repression.’ Oppenheim 1955 as quoted in Lippman 1985, p. 60.
- 34.
The Convention defined genocide as follows: ‘In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.’ Article 2 of the Genocide Convention. See also Preamble, Articles 1 and 3 of the Genocide Convention.
- 35.
- 36.
Article 6 of the ICC Statute, Article 4(2) of the ICTY Statute, Article 2(2) of the ICTR Statute, and Article 4 of the Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as promulgated on 27 October 2004. The statutes of the ad hoc tribunals also directly reproduced the modes of participation that are recognized under Article III of the Genocide Convention. The same approach has not been followed for the Rome Statute . See generally, Werle and Jessberger 2014, pp. 292–293; and Ambos 2014, pp. 3 and 140.
- 37.
In 2008 the AU adopted a Protocol to merge the two African Courts, namely the African Court of Justice and the Human and Peoples’ Rights Court. The Protocol has not entered into force, as it has not received the 15 minimum ratifications. The would-be merged Court is named the ‘African Court of Justice and Human Rights.’ This Court will have jurisdiction over general affairs and human right issues. See Protocol on the Statute of the African Court of Justice and Human Rights (2008). Available at AU https://au.int/en/treaties/protocol-statute-african-court-justice-and-human-rights. Accessed 20 June 2017. Article 9 of the 2008 Protocol requires 15 ratifications for it to come into force. So far, only six countries have ratified, namely, Benin, Burkina Faso, Liberia, Libya, Mali, and Congo. The status of the Protocol can be checked at. https://au.int/sites/default/files/treaties/7792-sl-protocol_on_the_statute_of_the_african_court_of_justice_and_human_rights.pdf. Accessed 20 June 2017.
At the June 2014 meeting in Malabo, the AU adopted a Protocol that expanded the jurisdiction of the African Court of Justice and Human Rights to criminal matters by creating an International Criminal Law Section (in this book also referred to as the ‘African Criminal Court’). Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights 2014. Hereafter the ‘Malabo Protocol 2014’. The Malabo Protocol is yet to enter into force. At the time of writing, not even a single African country has ratified the Protocol. Nine countries, namely, Benin, Chad, Congo. Ghana, Guine-Bissau, Kenya, Mauritania, Sierra Leone, and Sao Tome and Principe, have so far signed the Malabo Protocol. For the status list of the Malabo Protocol, see https://au.int/en/treaties/protocol-amendments-protocol-statute-african-court-justice-and-human-rights. Accessed 20 June 2017.
The new African Court has three Sections: General Affairs, Human Rights and Peoples’ Rights; and International Criminal Law Section. The Statute of the African Court of Justice and Human and Peoples’ Rights (the applicable law of the African Court that is annexed to the Malabo Protocol), which is yet to enter into force, vests the Criminal Section with jurisdiction over 14 (international and transnational) crimes, namely, genocide , war crimes , crimes against humanity, the crime of unconstitutional changes in government, piracy, terrorism, mercenarism, corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, illicit exploration of natural resources and aggression. See Articles 16, 28A of the Statute and Article 3 of the Malabo Protocol. Genocide is one of the crimes over which the Criminal Section will exercise jurisdiction once 15 states have ratified the Protocol. The Statute more or less adopted or mirrored the definition of Genocide under Article II of the Genocide Convention. Cf. Article 28B of the Statute, Article 6 of Rome Statute ; and Article II of the Genocide Convention. The only clarification brought about by the Statute is the addition of the words ‘rape or any other acts of sexual violence’ as one of the material elements of genocide , Article 28B(f). This is not a novel creation of the Statute but a progressive clarification. It is not novel because in the ICTR jurisprudence it had already been established that acts of ‘serious bodily and mental injuries’ can be interpreted to cover rape and other acts of sexual violence under the crime of genocide . It is stated that ‘rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities. Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole […]. Sexual violence was a step in the process of destruction of the Tutsi group—destruction of the spirit, of the will to live, and of life itself’ ICTR, Prosecutor v Akayesu, ICTR-96-4-T, Trial Judgement, (1998), paras 731–732. See also ICTR, the Prosecutor v Clément Kayishema and Obed Ruzindana, ICTR-95-1-T, Trial Judgement, (1999), para 95; ICTR, the Prosecutor v Emmanuel Rukundo, ICTR-2001-70-T, Trial Judgment (2001), paras 574–575; and ICTR, the Prosecutor v Alfred Musema, ICTR-96-13-T, Trial Judgment, 27 January 2000, para 933. See also Werle and Jessberger 2014, p. 304; Miller 2003–2004, pp. 349–373. For a discussion on the African Criminal Court, see Werle and Vormbaum 2017.
- 38.
- 39.
- 40.
The ICTR Trial Chamber stated bluntly that ‘genocide constitutes the crime of crimes, which must be taken into account when deciding the sentence’ ICTR, Prosecutor v Jean Kambanda, Trial Judgment, ICTR 97-23-S 4 September 1998, para 16. See also ICTY, the Prosecutor v Krstić, Appeal Judgment, IT-98-33-A, 19 April 2004, §§ 36, 134; ICTR, Kambanda v The Prosecutor, Appeal Judgment, ICTR 97-23-A, 19 October 2000, § 16; ICTY, The Prosecutor v. Jelisic, Appeal Judgment, IT-95-10-A, 5 July 2001, § 13; ICTR, the Prosecutor v. Akayesu, Judgment, ICTR-96-4-T, 2 September 1998, § 16. See also Schabas 2009. The ICTR Appeal Chamber subsequently remarked that ‘there is no hierarchy of crimes under the Statute, and that all of the crimes specified therein are “serious violations of international humanitarian law” capable of attracting the same sentence.’ ICTR, Prosecutor v Kayishema and Ruzindana, Appeal Judgment, ICTR-95-1-A, June 2001, para 367. In dealing with the seriousness of crimes against humanity vis-à-vis war crimes , the ICTY Appeal Chamber held that ‘crimes against humanity is intrinsically more serious than war crimes . … all things being equal, a punishable offence, if charged and proven as a crime against humanity, is more serious and should ordinarily entail a heavier penalty than if it were proceeded upon on the basis that it were a war crime.’, ICTY, Prosecutor v Erdemović, Appeal Judgment, ICTY, IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, (1997), para 20; and ICTY, Prosecutor v Dra`en Erdemovi, Appeal Judgment, ICTY, IT-96-22-A, 7 October 1997, p. 508. Cassese noted that ‘generally speaking, one cannot infer from international criminal provisions on penalties that a criminal offence is regarded as more serious than another. …In short, one cannot say that a certain class of international crimes encompasses facts that are more serious than those prohibited under a different criminal provision. In abstracto all international crimes are serious offences and no hierarchy of gravity may a priori be established between them (for instance, between war crimes and grave breaches of the Geneva Conventions, or between war crimes and crimes against humanity. )’ When the very same conduct of an accused is regarded as constituting a material element of various crimes (killing as a crime against humanity and a war crime), the gravity and ensuing penalty should be determined on a case-by-case basis. Contrary to the majority in the Appeal Sentencing Judgment, Judge Cassese argued that ‘whenever an offence committed by an accused is deemed to be a “crime against humanity”, it must be regarded as inherently of greater gravity, all else being equal (ceteris paribus), than if it is instead characterized as a “war crime”. Consequently, it must entail a heavier penalty … .’ ICTY, Prosecutor v Tadic, Judgment, ICTY, IT-94-1-A and IT-94-1-Abis, Separate Opinion of Judge Cassese , Appeal Judgment in Sentencing, (2000), paras 6, 7 and 16. From this, it is clear that in the case law of the UN ad hoc courts; there were no unanimous positions about the relative seriousness of core crimes . Under Article 6 of the ICC Statute it is not clear, to be precise, is yet to be judicially settled or determined, whether the list of the crimes was made in hierarchical order or not. In his commentary on the Rome Statute , Schabas observed that ‘[t]o the extent it is accepted that there is a hierarchy in international crimes, genocide unquestionably sits at its apex.’ Schabas 2010, p. 119. Ambos observed that there is abstract ranking of the core crimes . He states that ‘focusing on contextual elements, murder, as a crime against humanity seems to be more serious than murder as a war crime. The same applies, mutatis mutandis, to the relationship between genocide and war crimes . The attack on the existence of a protected group, accompanied by the requisite dolus specialis, makes genocide a more serious crime than a war crime. On the other hand, genocide is a crime against humanity, and as such, it possesses structurally the same rank as crimes against humanity. However, given its specific purpose of protection with regard to certain groups, its materially distinct elements, and the dolus specialis, genocide is a more fundamental, and thus more serious crime against humanity.’ Ambos 2014, pp. 252–253. Ambos states furthermore that ‘all else being equal, a hierarchy in abstracto between international crimes can be established with genocide being the most serious crime, followed by crimes against humanity and war crimes . This ranking, while not following from the Statutes or Rules of Procedure and Evidence (RPE), is confirmed by the sentencing practice of the ICTY and ICTR, punishing genocide more severely than crimes against humanity and war crimes , and the former more severely than the latter.’ Ambos 2014, p. 254. For Bassiouni , the crime of aggression stands at the top followed by genocide , crimes against humanity and war crimes , in this order, Bassiouni 2013, pp. 148 and 230. What is clear is that from a plain reading of the text of the law there is no any explicit ranking of the core crimes . In line with this, the ICTY Appeal Chamber held that ‘in law no distinction between the seriousness of a crime against humanity and that of a war crime. The Appeals Chamber finds no basis for such a distinction in the Statute or the Rules of the International Tribunal construed in accordance with customary international law; the authorized penalties are also the same, the level in any particular case being fixed by reference to the circumstances of the case. The position is similar under the Statute of the International Criminal Court , Article 8(1) of the Statute, in the opinion of the Appeals Chamber, not importing a difference.’ ICTY, Prosecutor v Tadić, Judgment in Sentencing Appeal , ICTY, IT-94-1-A & IT-94-1-Abis, (2000), para 69. Similarly the ICTY rejected a hierarchy of crimes in Prosecutor v Blaskic, Trial Judgement, IT–95–14–T 3 March 2000. In 2004, the UN Commission of Inquiry in Darfur, while concluding that the government of Sudan did not harbour a genocidal intent to annihilate the ‘African tribes’ in Darfur, stated that ‘depending on the circumstances, such offenses as crimes against humanity or large-scale war crimes may be no less serious and heinous than genocide .’ See Report of the International Commission of 2005, para 521. Thus, in abstracto, equal treatment approach of the core crimes seem to have become more acceptable, than intrinsic seriousness of one over the other.
- 41.
May 2005, p. 158.
- 42.
- 43.
International Court of Justice, Belgium v. Spain, ICJ Report, 5 February 1970; UNGA Resolution 1946; the Genocide Convention Preamble and Article 1; ICTR, the Prosecutor v. Bagilishema, Trial Judgment, ICTR-95-1A-T, 7 June 2001; ICTR, the Prosecutor v. Kayishema and Ruzindana, Trial Judgment, ICTR-95-1-T, 21 May 1999, § 88; UN Secretary-General’s Report 1993; Cassese 2002, p. 337; Wouters and Verhoeven 2005, pp. 401–416; Bassiouni 2013, p. 240; Kress 2006, p. 468; Akhavan 2005, pp. 989–990; and Edwards 1981, pp. 300 et seq.
- 44.
ICJ Reports 1951, p. 23; Shany 2009, p. 15.
- 45.
- 46.
See Article 17 of the International Law Commission Report 1996, Draft Code of Crimes against the Peace and Security of Mankind; Article 4 of the ICTY Statute.; Article 2 ICTR Statute; Article 4 of Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea 10 August 2001; Regulation 2000/15 of UNTAET on the establishment of panels with exclusive jurisdiction over serious criminal offenses; and Article 6 of the ICC Statute.
- 47.
On 2 September 1998, the ICTR delivered the first conviction for the crime of genocide by international tribunal. ICTR, Prosecutor v Akayesu, I Trial Judgment, CTR-96-4-T, 2 September 1998.
- 48.
United Nation Treaty Collection available at http://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=IV-1&chapter=4&lang=en. Accessed 15 June 2016.
- 49.
United Nation Treaty Collection available at http://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=IV-1&chapter=4&lang=en. Accessed 16 June 2016.
- 50.
Article 281 of the Penal Code . The new Code clarified the use of certain words. For instance, it clarified the hazy wording in the unclear Amharic version of the old Penal Code by providing expressly for the concept of ‘political groups’ as opposed to the old reference to a ‘politically united multinational section of society.’ Moreover, the confusing caption of Article 281 of the 1957 Penal Code is also remedied by the new Criminal Code of 2014. Cf. the Amharic version of Article 281 of the Penal Code and Article 269 of the Criminal Code . However, as will be shown, there are some aspects that the new Code failed to address. Most importantly, the missing phrase ‘as such’ should have been added in the new Criminal Code as it is one of the crucial elements of the crime of genocide .
- 51.
Article 269 Criminal Code .
- 52.
This is relevant in the context of the time when the Penal Code was promulgated because then the nexus between crimes against humanity (under which genocide was subsumed) and armed conflict was not clearly removed. In other words, it is a trite fact that in Nuremberg the crime of genocide had yet to become an autonomous crime. It was instead treated as part of crimes against humanity specifically the acts of persecution and extermination. And under the Charter of the IMT, crimes against humanity needed to have a nexus with war crimes or aggression. In other words, crimes against humanity could be committed in times of peace but could not be prosecuted if not committed in the context of conflict. Hence, stating under the Penal Code that genocide does not need a nexus to conflict was a necessary clarification. However, under the new Code this is not necessary, as the nexus requirement has already been removed long ago.
- 53.
Article 5 the FDRE Constitution, Article 5 of the Revised Constitution of the Southern Nation, Nationalities and People’s Regional State, Proclamation 31 of 2001; Article 5 of the Revised Constitution of the Amhara Regional State, Proclamation 59 of 2001.
- 54.
The few opposition members of Parliament (2005–2010) stated that the Derg officials should have not been charged with genocide because they never committed genocidal acts against any ethnic groups. This is correct, but genocide under Ethiopian law is not limited only to genocidal acts against ethnic groups, for it includes political groups as well. See The Chief Prosecutor Girma Wakjira’s Report to the Parliament, Part II available at http://www.ethiotube.net/video/8194/Documentary--findings-of-human-rights-abuses-during-Red-Terror-era--Part-2. Accessed 20 June 2016, and for discussion whether the acts of Derg officials amount to genocide or not see infra Sect. 6.1.5.
- 55.
See infra Sect. 6.1.5.
- 56.
Ibid.
- 57.
Article 281 Penal Code. Cf Article 269 FDRE Criminal Code , Article 6 of the Rome Statute , Article 2 of the Genocide Convention; Article 2 of the ICTR Statute.
- 58.
As aptly stated ‘‘ethnic cleansing’ is not a legal, but a factual term that describes a complex phenomenon ….’ Jessberger 2009, p. 103. On the origin and usage of the word during the Yugoslavia conflict, see Werle and Jessberger 2014, pp. 308–309; Ambos 2014, p. 15; and Jessberger 2009, pp. 103–104; Schabas 2009, pp. 221 et seq.
Ethnic cleansing is defined as ‘rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area’, ICJ, Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro), Case Concerning application of the Convention on the Prevention and Punishment of the crime of genocide , 2007, para 190. In its decision in the Kristic case, which was later endorsed by the Appeal Chamber, the ICTY Trial Chamber, stated that ‘despite recent developments, customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. Hence, an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide .’ ICTY, Prosecutor v Krstic, Judgment, IT-98-33-T, (2001), para 580. However, in the Blagojevic case, the Trial Chamber adopted a more extensive and liberal interpretation of the acts of genocide by specifically stating that ‘the term “destroy” in the genocide definition can encompass the forcible transfer of a population.’ ICTY, Prosecutor v Blagojevic and Jokic Judgment, IT-02-60-T, (17 January 2005), para 665, and paras 650–664. On the debate whether ethnic cleansing constitutes the crime of genocide , see Ambos 2014, p. 16, footnote 104. Whether the act of systematic purging of a civilian population can be punished as a crime of genocide should be determined on a case-by-case basis by taking into account the main aim for the cleansing. As aptly observed, ‘[t]he blanket qualification of ethnic cleansing as genocide than one occasionally encounters is incorrect’ Jessberger 2009, p. 104. This is so because ‘ethnic cleansing is aimed at displacing a population of a given territory in order to render the territory ethnically homogeneous. Thus, ethnic cleansing pursues a different aim than genocide , for it is not directed at the destruction of a group. While the material acts performed to commit these crimes may often resemble each other, the main difference lies in the different specific intents: ethnic cleansing is intended to displace a population, genocide to destroy it. Therefore, it is clear that ‘ethnic cleansing’ need not per se amount to genocide . It would only do so if the perpetrators intended to destroy a protected group in order to render the territory ethnically homogeneous.’ Ambos 2014, p. 16. Where the ethnic cleanser has special genocidal intent, the act can be punished both as genocide and as a crime against humanity since the two ‘crimes have distinct material elements’. In the absence of dolus specialis, the act can be punished as a crime against humanity. For a discussion on ethnic cleansing, see generally Cassese 2002, p. 338; Cassese 2013; Triffterer and Ambos 2016, pp. 136–137; Ambos 2014, pp. 15–16; Bassiouni 2013; Jessberger 2009, pp. 103–105.
- 59.
Article 269 of the FDRE Criminal Code .
- 60.
ICTR, Prosecutor v Akayesu, Judgment, ICTR-96-4-T, 2 September 1998, § 521; ICTR, the Prosecutor v Bagilishema, Trial Judgment, ICTR-95-1A-T, 7 June 2001, §§ 57–58; ICTR, the Prosecutor v Kayishema and Ruzindana, Appeal Judgment, ICTR-95-1-A, 1 June 2001, §151; ICTR, the Prosecutor v Simba, I Judgment and Sentence, CTR-01-76-T, 13 December 2005, § 414; ICTR, Prosecutor v Bagosora et al, Trial Judgment, ICTR-98-41-T, 18 December 2008, § 2117; ICTR, Prosecutor v Musema, Judgment and Sentence, ICTR-96-13-T, 27 January 2000, § 155; Schabas 2005, pp. 157–158; Trifftterer and Ambos 2016, p. 138; Jessberger 2009, p. 96; Werle and Jessberger 2014, p. 303; Schabas 2010, p. 131; Ambos 2014, p. 11; Nserko 2000, pp. 116–140; Cassese 2013, p. 115.
- 61.
- 62.
ICTR, the Prosecutor v Kayishema and Ruzindana, Trial Judgment, ICTR-95-1-T, 21 May 1999, § 109. See also ICTR, Prosecutor v Akayesu, Judgment, ICTR-96-4-T, 2 September 1998, § 50; ICTR, Prosecutor v Musema, Judgment and Sentence, ICTR-96-13-T, 27 January 2000, § 156; ICTR, Prosecutor v Semenza, Judgment and Sentence, ICTR-97-20, 15 May 2003, § 315; ICTR, Prosecutor v Rutaganda, Judgment and Sentence, ICTR-96-3-T, 6 December 1999, § 108. See also Werle and Jessberger 2014, pp. 303–306; Cassese 2013, p. 116; Jessberger 2009, pp. 97–99; Triffterer and Ambos 2016, p. 138; Schabas 2010, p. 132; Ambos 2014, pp. 11–12.
- 63.
ICTR, Prosecutor v Akayesu, Judgment, ICTR-96-4-T, 2 September 1998, §§ 706–707, §§ 711–712; ICTR, the Prosecutor v Kayishema and Ruzindana, Trial Judgment, ICTR-95-1-T, 21 May 1999. §§ 50–54; ICTR, Prosecutor v. Rutaganda, Judgment and Sentence, ICTR-96-3-T, 6 December 1999, § 51; ICTY, Prosecutor v Krstic, Judgment, IT-98-33-T, 02 August 2001, § 513. See also Werle and Jessberger 2014, p. 304; Cassese 2013, p. 116; Schabas 2009, pp. 185–187.
- 64.
ICTR, the Prosecutor v Kayishema and Ruzindana, Trial Judgment, ICTR-95-1-T, 21 May 1999 § 106.
- 65.
ICTY, Prosecutor v Krstic, Judgment, ICTY, IT-98-33-T, 02 August 2001, § 513; ICTR, the Prosecutor v Seromba, Appeal Judgment, ICTR-2001-66-A, 12 March 2008, § 46; ICTR, the Prosecutor v. Kayishema and Ruzindana, Trial Judgment, ICTR-95-1-T, 21 May 1999, § 106 and §110. See generally Werle and Jessberger 2014, p. 304; Cassese 2013, p. 116.
- 66.
ICTY, Prosecutor v Krstic, Judgment, ICTY, IT-98-33-T, 02 August 2001, § 513; ICTR, Prosecutor v Akayesu, Judgment, ICTR-96-4-T, 2 September 1998, § 502; ICTR, the Prosecutor v. Kayishema and Ruzindana, Trial Judgment, ICTR-95-1-T, 21 May 1999, §107. See also Ambos 2014, p. 12; Triffterer and Ambos 2016, p. 138; Schabas 2009, pp. 184–187.
- 67.
Werle and Jessberger 2014, p. 305.
- 68.
ICTR, the Prosecutor v Kayishema and Ruzindana, Judgment, ICTR-95-1- T, 21 May 1999, §§ 115. See also ICTR, Prosecutor v Akayesu, Judgment, ICTR-96-4-T, 2 September 1998, § 505; ICTY, the Prosecutor v Stakic, Trial Judgment, IT-97-24-T, 31 July 2003, § 691; ICTR, Prosecutor v Rutaganda, Judgment and Sentence, ICTR-96-3-T, 6 December 1999, § 52.
- 69.
ICTR, Prosecutor v Akayesu, Trial Judgment, ICTR-96-4-T, 2 September 1998, § 506; ICTR, the Prosecutor v Kayishema and Ruzindana, Trial Judgment, ICTR-95-1- T, 21 May 1999, § 116; ICTR, Prosecutor v Musema, Judgment and Sentence, ICTR-96-13-T, 27 January 2000, § 157. See also Robinson 1960, p. 123; Triffterer and Ambos 2016, p. 139; Werle and Jessberger 2014, pp. 305–306; Ambos 2014, p. 13; Schabas 2009, pp. 188–196; Schabas 2010, p. 132.
- 70.
See for example the Prosecutor v Kayishema and Ruzindana, Trial Judgment, ICTR-95-1- T, 21 May 1999, § 118. See also Werle and Jessberger 2014, pp. 307–308; Cassese 2013, pp. 116–117; Triffterer and Ambos 2016, p. 140; Schabas 2009, pp. 201–206; Nsereko 2000, p. 130; Mugwanya 2011, p. 119. In this case ‘the transfer leads to a loss of cultural identity by assimilation of the children of one group to another group, but it does not per se lead to the physical destruction of the group.’ Ambos 2014, p. 15. As eloquently described by Jessberger ‘children when transferred to another group, cannot grow as part of their group of origin, or become estranged from their cultural identity. The language, traditions and culture of their group become or remain alien to the children.’ Jessberger 2009, p. 103. As discussed in the previous part, under the Penal Code it is not only the forceful transfer of children, which was regarded as an act of genocide but also the forceful transfer of people (adults). As convincingly argued by Triffterer and Ambos, ‘the fifth act of genocide [i.e., forcibly transferring children of the group to another group] obviously refers to the transfer of children that result in a loss of their original identity as a group. While this can occur to young children, it seems highly improbable that it could ever apply to adolescents.’ Triffterer and Ambos 2016, p. 140. In fact, Schabas observed that 18 years is a high standard, let alone including adolescent as victims of forceful transfer for crime of genocide . To use his words, he argues that ‘although not stated in the [Genocide ] Convention, the genocidal act of transferring children only makes sense with a relatively young children, and eighteen years must be too high a threshold.’ He further stated rightly that ‘[f]rom legal standpoint, while children maybe considered to belong to their parents, the principle completely inapplicable to adults. There is nobody from whom to be forcibly transferred.’ Schabas 2009, p. 203. It is not clear why Ethiopia and a country like Bolivia decided to include the forcible transfer of adults as an act of genocide . See Penal Code of Bolivia, Chap. IV, Article 138.
- 71.
See for instance ICTR, Prosecutor v Akayesu, Trial Judgment, ICTR-96-4-T, 2 September 1998, §§ 507–508; ICTR, the Prosecutor v Kayishema and Ruzindana, Trial Judgment, ICTR-95-1-T, 21 May 1999, § 117; ICTR, Prosecutor v Rutaganda, Judgment and Sentence, ICTR-96-3-T, 6 December 1999, § 53. See also Cassese 2013, p. 116; Ambos 2014, p. 14; Triffterer and Ambos 2016, p. 139; Schabas 2009, pp. 197–201; Werle and Jessberger 2014, p. 306.
- 72.
Article 281 of the Penal Code .
- 73.
Article II of the Genocide Convention.
- 74.
- 75.
As observed by a scholar, ‘over the years many have tried to provide some clarity to the terms [national, ethnic, racial and religious], but that their efforts remain unconvincing. This is hardly a surprise, because the concepts of race, ethnic, and national groups are a priori imprecise.’ Verhoeven 1991 as cited in Schabas 2009, p. 124. The Trial Chamber in the Rutaganda judgment pointed out that ‘concepts of national, ethnical, racial, and religious groups have been researched extensively and that, at present, there are no generally and internationally accepted precise definitions thereof.’ ICTR, the Prosecutor v Georges Anderson Nderubumwe Rutaganda, Trial Judgment, ICTR-96-3-T, 6 December 1999, para 56. Same reasoning is endorsed in the Musema Judgment. ICTR, the Prosecutor v Alfred Musema, Trial Judgment, ICTR-96-13-T, 27 January 2000, para 161.
- 76.
ICTR, the Prosecutor v Georges Anderson Nderubumwe Rutaganda, I Trial Judgment, CTR-96-3-T, 6 December 1999, para 56. See also ICTR, the Prosecutor v Alfred Musema, Trial Judgment, ICTR-96-13-T, 27 January 2000, para 161; Martin 2009, pp. 117–121; Verdirame 2000, pp. 578–598; Szpak 2012, pp. 155–173.
- 77.
Schabas aptly observed that ‘[t]here is a danger that a search for autonomous meanings for each of the four terms [referring to the four protected groups under the Genocide Convention] will awaken the overarching sense of the enumeration as a whole, forcing the jurist into an untenable Procrustes bed.’ […] He further noted that ‘[d]econstructing the enumerations risks distorting the sense that belongs to the four terms, taken as whole.’ Schabas 2009, p. 131.
- 78.
Ambos stated that ‘[t]he act of genocide must be directed against a national, ethnical, racial, or religious group as such. A group is a permanent (collective) unity of people, which distinguishes itself from the rest of the population on the grounds of common characteristics shared by its members. As there is no definition of these characteristics in the Convention or elsewhere, they have had to be determined by the jurisprudence.’ Ambos 2014, p. 7.
- 79.
ICTR, the Prosecutor v Jean-Paul Akayesu, Trial Judgment, ICTR-96-4-T, 2 September 1998, para 513. The Trial Chamber in the Kayishema case defined ethnic group as ‘one whose members share a common language and culture; or, a group which distinguishes itself, as such (self-identification); or, a group identified as such by others, including perpetrators of the crimes (identification by other).’ ICTR, the Prosecutor v Clément Kayishema and Obed Ruzindana, Trial Judgment, ICTR-95-1-T, 21 May 1999, para 98. See also Genocide Convention Implementation Act of 1987; Werle and Jessberger 2014, p. 299; Ambos 2014, p. 6; Szpak 2012, p. 159; Martin 2009, pp. 116 and 119; Schabas 2009, pp. 143–147; Nersessian 2003, p. 300; Wiessner 2005, pp. 304–305.
- 80.
ICTR, the Prosecutor v Jean-Paul Akayesu, Trial Judgment, ICTR-96-4-T, 2 September 1998, para 514. See also ICTR, the Prosecutor v. Clément Kayishema and Obed Ruzindana, Trial Judgment, ICTR-95-1-T, 21 May 1999, para 98; and Schabas 2009, pp. 143–147. For summary on this, see Werle and Jessberger 2014, p. 299; Ambos 2014, p. 6; Szpak 2012, p. 159; Nersessian 2003, p. 300; Martin 2009, pp. 116, 119.
- 81.
ICTR, the Prosecutor v Jean-Paul Akayesu, Trial Judgment, ICTR-96-4-T, 2 September 1998, para 515. See also ICTR, the Prosecutor v Clément Kayishema and Obed Ruzindana, Trial Judgment, ICTR-95-1-T, 21 May 1999, para 98; and Schabas 2009, pp. 139–143. This definition seems to preclude non-religious and atheistic group. Werle and Jessberger pointed out that [a]theistic groups are not protected since freedom not to practice a religion is not protected.’ Werle and Jessberger 2014, p. 300. Cf. Nersessian 2003, pp. 300–301; Shaw 1989, p. 807. Lippman and Shah argued that ‘[r]eligious groups encompass both theistic, non-theistic, and atheistic communities which are united by a single spiritual ideal.’ Lippman 1994, p. 29; and Shah 2002, pp. 357–358.
- 82.
ICTR, the Prosecutor v Jean-Paul Akayesu, Trial Judgment, ICTR-96-4-T, 2 September 1998, para 512. On the drafting history of inclusion, exclusion and re-introduction of national group in the drafts and final text of the Genocide Convention, see Robinson 1960, p. 59; Schabas 2009, pp. 134–141; Quigley 2006, pp. 150–151; Martin 2009, pp. 115 et seq. Under American law, it is defined as ‘a set of individuals whose identity as such is distinctive in terms of nationality or national origins.’ Section 1093 (5), Genocide Convention Implementation Act of 1987. For a summary on the definition of national group, see Ambos 2014, p. 6; and Werle and Jessberger 2014, p. 298.
- 83.
Spanish Audiencia Nacional, Judgment 5 November 1998, s. 5 119 ILR (2002), 331, pp. 340 et seq. See also Werle and Jessberger 2014, p. 298.
- 84.
Ambos noted that ‘these groups [the four protected groups] are not always clearly distinguishable from each other and very often overlap’, Ambos 2014, p. 7. Schabas convincingly stated that ‘[t]he four terms in the Convention not only overlap, they also help to define each other, operating as four corner posts that delimit an area within a myriad of groups covered by the Convention find protection.’ Schabas 2009, p. 129.
- 85.
- 86.
- 87.
Lemkin 1944, pp. 85–87.
- 88.
- 89.
See for example ICTY, Prosecutor v Stakic, Trial Judgment, IT-97-24-T, 31 July 2003, § 24; ICTY, Prosecutor v Jelisic, Trial Judgment IT-95-10-T 14 December 1999, § 69; ICTR, Prosecutor v Akayesu, Judgment, ICTR-96-4-T, 2 September 1998, § 511; ICTR the Prosecutor v Kayishema and Ruzindana, Trial Judgment, ICTR-95-1- T, 21 May 1999, § 98; ICTR, Prosecutor v Rutaganda, Judgment and Sentence ICTR-96-3-T, 6 December 1999, § 57.
- 90.
ICTR, Prosecutor v Akayesu, Judgment, ICTR-96-4-T, 2 September 1998, § 511; ICTR, Prosecutor v Rutaganda, Judgment and Sentence, ICTR-96-3-T, 6 December 1999, § 57.
- 91.
ICTR, Prosecutor v Akayesu, Judgment, ICTR-96-4-T, 2 September 1998, § 511.
- 92.
ICTR, Prosecutor v Akayesu, Judgment, ICTR-96-4-T, 2 September 1998, § 516; ICTR, Prosecutor v Rutaganda, Judgment and Sentence, ICTR-96-3-T, 6 December 1999, § 57; ICTR, Prosecutor v Musema, Judgment and Sentence, ICTR-96-13-T, 27 January 2000, § 162.
- 93.
- 94.
- 95.
The same Trial Chamber reflected similar arguments in other two cases. ICTR, Prosecutor v Rutaganda Trial Judgment, ICTR-96-3-T, 6 December 1999, para 57; and Prosecutor v Musema, Trial Judgement, 27 January 2000, para 162. Nonetheless, the stable and permanent theory as a means to include other non-listed groups has not been endorsed by other Trial Chambers of the Court. Besides, the argument of the Akayesu Trial Chamber has never been endorsed by the Appeal ’s Chamber. Recently, the UN Darfur Commission , however, endorsed the Akayesu Trial Chamber’s argument. The Commission stated that ‘[w]hat matters from a legal point of view is the fact that the interpretative expansion of one of the elements of the notion of genocide (the concept of protected group) by the two International Tribunals is in line with the object and scope of the rules on genocide (to protect from deliberate annihilation essentially stable and permanent human groups, which can be differentiated on one of the grounds contemplated by the Convention and the corresponding customary rules). In addition, this expansive interpretation does not substantially depart from the text of the Genocide Convention and the corresponding customary rules because it, too, hinges on four categories of groups, which, however, are no longer identified only by their objective connotations but also on the basis of the subjective perceptions of members of groups. Finally, and perhaps more importantly, this broad interpretation has not been challenged by States. It may therefore be safely held that that interpretation and expansion has become part and parcel of international customary law’ UN Internationa Commission of Inquiry, 2005, para 501. See generally Schabas 2009, pp. 151–153; and Mugwanya 2011, p. 68. For brief discussions on this, see Werle and Jessberger 2014, pp. 300–302; and Ambos 2014, pp. 6–7.
- 96.
Mugwanya 2011, p. 68.
- 97.
- 98.
Schabas 2005, p. 132. See also Articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969, 1155 UNTS 331 (1969).
- 99.
Schabas rightly observed that the Akayesu Trial Chamber argument ‘was a somewhat extravagant reading of the travaux, based on rather isolated comments by a few delegations….’ Schabas 2009, p. 152.
- 100.
Articles 31 and 32 of the of the Vienna Convention on the Law of Treaties 1969.
- 101.
Schabas 2005, p. 133.
- 102.
- 103.
Nersessian 2010, p. 65.
- 104.
Robinson 1960, p. 59.
- 105.
In the cases of the Military Tribunals’ and ad hoc courts’ establishing instruments, the definition of the crimes were influenced and shaped by the acts that had happened. However, progressive treaties, such as, the Genocide Convention, are supposed to go beyond past events, and have to be anticipatory in their nature.
- 106.
Harff and Gurr 1988, pp. 62–63.
- 107.
Nersessian 2010, p. 85.
- 108.
- 109.
- 110.
See Nersessian 2010, Appendix A Table I pp. 268–271. Those countries include Ghana, Hungary, Iraq, Mali, Russia, Spain, Sweden, Uganda, UK, USA and Rwanda.
- 111.
- 112.
Article 127 the Criminal Code of the Republic of Belarus No. 275-3 of 1999.
- 113.
Article 313 of the Penal Code Burkina Faso Law N°043/96/ADP of 13 November 1996. See also Prevent Genocide international available at http://www.preventgenocide.org/fr/droit/codes/burkinafaso.htm. Accessed 5 September 2016.
- 114.
Article 4(3) of Crimes against Humanity and War Crimes Act of Canada SC 2000 and § 318 of Canada’s Criminal Code R.S.C., 1985, c. C-46.
- 115.
Article 1, Chap. 1 of the Penal Code of Democratic Republic of Congo Law No 8-98 of 1998.
- 116.
§ 90 of the Penal Code of Republic of Estonia of 1994.
- 117.
§ 6 c 11 of the Penal Code of Finland No 39 of 1889 as affirmed by the Act No 1285 of 2000 on Implementation of the Legislative Provisions of the Rome Statute of the International Criminal Court and on the Application of the Statute.
- 118.
Article 211-1 of the Penal Code of France as affirmed by Law No 2002-268 of February 2002
- 119.
§ 71 c 8 of the Criminal Code of Latvia of 1998.
- 120.
Nersessian 2010 Appendix A, Table I pp. 268–71; and Ventura 2011, pp. 1031–1032. Penal laws of different countries can be accessed from Prevent Genocide international http://www.preventgenocide.org/fr/droit/codes/burkinafaso.htm. Accessed 5 September 2016. Rule of Law in Armed Project, http://www.geneva-academy.ch/RULAC/national_legislation.php?id_state=52. Accessed 12 September 2016. For summary, see Werle and Jessberger 2014, p. 301; Schabas 2009, pp. 161–162; Ambos 2014, p. 9 footnote 51; and Bassiouni 2013, pp. 153–154.
- 121.
Article 281 of the Penal Code . Cf Article 269 of the Criminal Code .
- 122.
Article 3 of the Bangladesh International Tribunals Act xix of 1973.
- 123.
Article 101 of the Penal Code of Columbia 599 of 2000.
- 124.
Article 127 of the Penal Code of Costa Rica of 1998.
- 125.
Article 137 of the Penal Code of Côte d’Ivoire Law N°1995-522 of 6 July 1995 modifying Law N°1981-640 of 31 July 1981 See Prevent Genocide international http://www.preventgenocide.org/fr/droit/codes/cotedivoire.htm. Accessed 12 September 2016.
- 126.
Article 19 of the Penal Code of Ecuador.
- 127.
Article 118 c XVI. Offences against peace, and humanity, and war crimes Penal Code of Poland of 1997.
- 128.
Article 373 and 378 c 35 of the Penal Code of Slovenia of 1994.
- 129.
Article 99 of the Lithuanian Republic Criminal Code VIII-1968 of 2000.
- 130.
- 131.
Van Schaack 1997, pp. 2259–2291.
- 132.
Schabas observed that ‘there are few such States [which criminalized politicide under their domestic laws], and it is ambitious to suggest that the practice of a few defines some customary norm including political groups in the definition of genocide . The vast majority of States follow the Convention to the letter in their domestic legislation’, Schabas 2009, p. 162. On customary international law, see Articles 57 and 63 of the Vienna Convention on the Law of Treaties 1969; and Article 38 of the Statute of International Court of Justice. For a general discussion on how a given state practice evolves into jus cogens, see generally Shaw 2003; Brownlie 2008; ICJ, Nicaragua v US, Merits, Military and Paramilitary Activities in and Against Nicaragua, 27 June 1986; ICTY, Prosecutor v Tadic IT-94-1-A 15 July 1999, §§ 128 et seq; Nersessian 2010, pp. 191–200, 127; ICJ, Colombia v Peru, Asylum, Merits, 20 November 1950, § 277; and ICJ, North Sea Continental Shelf, Ger v Den and Neth, Merits, 20 February 1969, § 76.
- 133.
The Canadian law recognized color group, as one category of protected group see § 318 of Canada’s Criminal Code R.S.C., 1985, c. C-46.
- 134.
Article 269 of the Criminal Code .
- 135.
- 136.
- 137.
Harff 2003, p. 58.
- 138.
Restricted in the sense that for the crime of genocide there is no need for the actual occurrence of mass killings, killing a member (s) of the group with intent to eliminate the protected group(s) suffices. The definition is also a bit broader in the sense that the mere existence of mass killing seems suffice for political genocide which is commonly not the case. Because normally mass killing in and of itself does not amount to genocide unless it is committed with intent to destroy the group. Nonetheless, the intent to destroy could be inferred from the mass killing itself, but this might not be necessarily true all the time.
- 139.
Paust et al. 1996, p. 1087.
- 140.
- 141.
Nersessian 2010, pp. 205–207.
- 142.
Article 2(2) Proclamation 573 of 2008.
- 143.
The ill- and vaguely-defined acts of terrorism in the Ethiopian law attests to the fact of how law can be used to narrow the political space. Anti-Terrorism Proclamation 652 of 2009.
- 144.
For the discussion on the arguments of the defendants, see infra Sect. 5.3.1.7.
- 145.
Nersessian 2010, p. 86.
- 146.
Nersessian 2010, p. 86.
- 147.
Probably, it is a result of poor draftsmanship.
- 148.
- 149.
- 150.
The Appeals Chamber rightly observed that ‘criminal intent (mens rea) must not be confused with motive and that, in respect of genocide , personal motive does not exclude criminal responsibility providing that the acts proscribed in Article 2(2)(a) through to (e) were committed with 241 intent to destroy, in whole or in part a national, ethnical, racial or religious’ ICTR, The Prosecutor v Clément Kayishema and Obed Ruzindana, Appeal Judgment, ICTR-95-1-A, 1 June 2001, para 161. Likewise, in the Jelisic case the Appeals Chamber noted ‘the necessity to distinguish specific intent from motive. The personal motive of the perpetrator of the crime of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power. The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide ’ ICTY, Prosecutor v Goran Jelisic, Appeal Judgment, IT-95-10-A, ICTY, 5 July 2001, para 49. On the bases of these cases, motive is irrelevant as far as criminal liability for the commission of genocide is concerned.
- 151.
- 152.
Kress states that ‘the rather sterile debate on the motive requirement [during the drafting of Genocide Convention] is revealing only in that it makes clear that contrary to what the wording of the definition may suggest at first reading, the words “as such” have not been used by the drafters to stress the group’s nature as a social entity.’ Kress 2006, p. 499, footnote, 180.
- 153.
In the Tadic case it is stated that ‘motive becomes relevant at the sentencing stage in mitigation or aggravation of the sentence (for example, the above mentioned thief might be dealt with more leniently if he stole to give presents to his children than if he were stealing to support a heroin habit).’ And the Chamber noted […] the inscrutability of motives in criminal law….’ ICTY, Prosecutor v Dusko Tadic, Appeal Judgment, IT-95-1-A, ICTY, 15 July 1999, para 269. See also Behrens 2012, p. 503.
- 154.
ICTR, Niyitegeka v Prosecutor, Judgment, ICTR-96-14-A, 9 July 2004, para 49.
- 155.
Werle and Jessberger convincingly note that the words ‘as such’ make ‘the reference point of the intent to destroy more precise by requiring that the perpetrator’s desire to kill the victim be based specifically on the victim’s membership in the group. The perpetrator’s interest must be in destroying the group, not the individuality of the victims .’ Werle and Jessberger 2014, pp. 315–316. Kress also noted that ‘“as such” express the idea of the targeting of the group through its members.’ Kress 2006, p. 498.
- 156.
As Lemkin rightly observed, ‘[g]enocide is directed against a national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of a national group.’ Lemkin 1944, p. 79.
- 157.
Prosecutor v Akayesu, ICTR-96-4-T, 2 September 1998, § 521. See also Prosecutor v Nahimana et al, ICTR-99-52-T, 3 December 2003, § 948; ICTR, the Prosecutor v Laurent Semanza, Trial Judgment, ICTR-97-20-T, 15 May 2003, para 312; ICTR, the Prosecutor v Ignace Bagilishema¸ Trial Judgment, ICTR-95-1A-T, 7 June 2001, para 61; Prosecutor v Rutaganda, ICTR-96-3-T, 6 December 1999, para 60; and Prosecutor v Musema, ICTR-96-13-T, 27 January 2000. For summary on this, see Werle and Jessberger 2014, pp. 315–316; Ambos 2014, pp. 40 et seq; Schabas 2010, p. 130; Triffterer and Ambos 2016, p. 136; Jessberger 2009, pp. 109–110.
- 158.
Kress 2006, p. 498.
- 159.
Prosecutor v Akayesu, ICTR-96-4-T, 2 September 1998, § 497; Prosecutor v Jelsic IT-95-10-T 14 December 1999, § 80; Prosecutor v Kayishema and Ruzindana, ICTR-95-1-T, 21 May 1999, § 95.
- 160.
On the issue of what constitute part of the groups, see generally the jurisprudence adopted by the ad hoc Tribunals, Prosecutor v Jelisic IT-95-10-T 14 December 1999, § 82; Prosecutor v Krstic, IT-98-33-T, 02 August 2001, § 634; ICTY, Prosecutor v Krstić, Judgment, ICTY, IT-98-33-A, 19 April 2004, § 12; Prosecutor v Kayishema and Ruzindana, ICTR-95-1-T, 21 May 1999, § 96; Prosecutor v Semenza, ICTR-97-20, 15 May 2003, § 316. See also Werle and Jessberger 2014, p. 302; Schabas 2005, pp. 231–237; Cassese 2013, pp. 121–122; Cryer et al. 2010, pp. 221–222; Kress 2006, p. 489; Akhavan 2005, 992 et seq.
- 161.
In the Akayesu case the ad hoc Tribunal for Rwanda used an approach which was highly inclined to the objective method, see Prosecutor v Akayesu, ICTR-96-4-T, 2 September 1998, §§ 511–515. Cf Prosecutor v Kayishema and Ruzindana, ICTR-95-1-T, 21 May 1999, § 98. See also ICJ, Licht v Guat, Second Phase, 6 April 1955; Amann 2002, 100–143. Mugwanya 2011, pp. 72 et seq; and Akhavan 2005, 989–1006. For a summary on how to identify protected groups, see Werle and Jessberger 2014, pp. 296–297; Triffterer and Ambos 2016, p. 135; Ambos 2014, pp. 8–9; Martin 2009, pp. 122–125; Schabas 2010, pp. 129–130; Schabas 2009, p. 128; May 2010, pp. 40 et seq; Kress 2006, p. 474.
- 162.
Cassese 2009, p. 124. See also Schabas 2005, p. 110; ICTY, Prosecutor v Brdjanin, Trial Judgement, IT-99-36-T, 1 September 2004, § 684; Prosecutor v Semenza, ICTR-97-20, 15 May 2003, § 317; ICTR, the Prosecutor v Kajelijeli, Judgment and Sentence, ICTR-98-44A-T, 1 December 2003, § 811; Prosecutor v Rutaganda, ICTR-96-3-T, 6 December 1999, §§ 56–57; Amann 2002, 93–143 57.
- 163.
- 164.
Mugwanya 2011, pp. 73 et seq; and Prosecutor v Brdjanin IT-99-36-T, 1 September 2004 § 684.
- 165.
Prosecutor v Brdjanin, IT-99-36-T, 1 September 2004, § 684.
- 166.
Prosecutor v Jelsic IT-95-10-T 14 December 1999, § 61. See also Ambos 2014, p. 8.
- 167.
- 168.
- 169.
Ambos aptly observed that ‘[g]enocide is a crime with a double mental element, i.e. a general intent as to the underlying acts, and an ulterior intent with regard to the ultimate aim of the destruction of the group.’, Ambos 2009, p. 1.
- 170.
Articles 58 and 59 of the Penal Code . Cf. Article 59(2) of the Criminal Code .
- 171.
Article 59 of the Penal Code .
- 172.
In their comment on Article 6 of ICC Statute Werle and Jessberger aptly state that ‘dolus eventualis and recklessness are insufficient to fulfill the mental element of these underlying crimes [the four crimes under the ICC jurisdiction including genocide ].’ Werle and Jessberger 2014, p. 313.
- 173.
Article 59(1) of the Penal Code .
- 174.
- 175.
Article 281 of the Penal Code . Cf. Article 269 of the Criminal Code .
- 176.
ICTR, Prosecutor v Kambanda, Judgement and Sentence, ICTR 97-23-S, 4 September 1998, § 16, Prosecutor v Kayishema and Ruzindana, ICTR-95-1- T, 21 May 1999, § 91; Prosecutor v Akayesu, ICTR-96-4-T, 2 September 1998, §§ 497; Prosecutor v Rutaganda, ICTR-96-3-T, 6 December 1999, § 59; Prosecutor v Jelisic, IT-95-10-A, 5 July 2001, §§ 50–52; Prosecutor v Musema, ICTR-96-13-T, 27 January 2000, §§ 164–67; Prosecutor v Semenza, ICTR-97–20, 15 May 2003, §§ 311–313. See generally Cassese et al. 2001, pp. 211–215, Cassese 2013, p. 118; and Werle and Jessberger 2014, pp. 314–318; Triffterer 2001, pp. 404–407; Triffterer and Ambos 2016, p. 131; Ambos 2014, pp. 21–36; Schabas 2009, pp. 260–268.
- 177.
The Draft Code of Crimes against the Peace and Security of Mankind with Commentaries (1996), p. 44.
- 178.
Prosecutor v Kambanda, ICTR 97-23-S, 4 September 1998, § 16; Prosecutor v Kayishema and Ruzindana, ICTR-95-1-T, 21 May 1999, § 91; Prosecutor v Akayesu, ICTR-96-4-T, 2 September 1998, § 497; Prosecutor v Jelisic, IT-95-10-A, 5 July 2001, § 45; Prosecutor v Musema, ICTR-96-13-T, 27 January 2000, §§ 164–67; Prosecutor v Semenza, ICTR-97-20, 15 May 2003, §§ 311–313. See Werle and Jessberger 2014, pp. 317–318; Schabas 2005, pp. 217–218.
- 179.
Prosecutor v Akayesu, ICTR-96-4-T, 2 September 1998, § 498.
- 180.
Prosecutor v Kayishema and Ruzindana, ICTR-95-1- T, 21 May 1999, § 93.
- 181.
Prosecutor v Akayesu, ICTR-96-4-T, 2 September 1998, § 523.
- 182.
Prosecutor v Jelisic, IT-95-10-A, 5 July 2001, § 48; ICTY, Prosecutor v Kunarac et al, Appeal Judgment, IT-96-23 & IT-96-23/1, 12 June 2002, §98; ICTR, Prosecutor v Ntakirutimana et al, Appeal Judgment,ICTR-96-10-A & ICTR-96-17-A, 13 December 2004, § 363; and Appeal Judgment, Prosecutor v Niyitegeka, ICTR-96-14-A, 9 July 2004, § 53.
- 183.
- 184.
Prosecutor v Kayishema and Ruzindana, ICTR-95-1-T, 21 May 1999, §§ 93–94; and Prosecutor v Jelisic, IT-95-10-A, 5 July 2001.
- 185.
- 186.
- 187.
- 188.
- 189.
Cf. the Penal Code of 1972 of Germany Section 16, Crimes against Life, § 220a, Genocide . This repealed provision of German Penal Code regarded genocide as crime against life. See also Article 211-1 of the French Penal Code of 1992, Article 611 of the Estonian Penal Code, and Article 313 of the Penal Code of Burkina Faso that characterized crime of genocide as species of crimes against humanity. See also Prosecutor v Kayishema and Ruzindana, ICTR-95-1-T, 21 May 1999 § 89; in which the Chamber stated that ‘the crime of genocide is a type of crimes against humanity. ’, and affirmed that crime of genocide is different from crimes against humanity.
- 190.
As discussed in the preceding part, genocide requires commission of certain individual act/s against member/s of the protected group/s with special intent to destroy the group/s as such. Whereas, crimes against humanity are the commission of attack against civilian population [emphasis added) in a widespread or systematic manner. Both the individuals’ acts and the protected groups in the case of crimes against humanity are wider. Genocide only protects limited groups, commonly four. The genocidal acts are also limited to five categories whereas in the case of crimes against humanity there are long lists of acts and in some case, a catchall phrase ‘any other inhuman acts’. Thus, in this sense the two crimes have different elements. See Article 7 of the Rome Statute ; Article 28C of the African Court Statute; Article 6(c) of the IMT Charter; Article 5(c) of IMTFE; Article 5 of the ICTY; Article 3 of the ICTR; Article 8 of the Draft Code of Crimes Against the Peace and Security of Mankind. See also Cassese 2002, pp. 339–340; Cassese 2009, pp. 127–128; Triffterer and Ambos 2016, pp. 142–143; Cryer et al. 2010, p. 206.
- 191.
- 192.
In addressing the similarity and difference between genocide and crimes against humanity, the ICTR stated that ‘[t]here are instances where the discriminatory grounds coincide and overlap.’, Prosecutor v Kayishema and Ruzindana, ICTR-95-1-T, 21 May 1999, § 89. For analysis of specific scenarios where the two crimes overlap, see §§ 629–637 of the Kayishema and Ruzindana judgment See also Cryer et al. 2010, p. 206; Cassese 2002, p. 339.
- 193.
The Prosecutor v Jelisic, Judgment of 5 July 2001, § 49.
- 194.
Cassese 2013, p. 128.
- 195.
- 196.
FDRE Constitution Article 28(1).
- 197.
The International Law Commission (ILC) added the idea of forging convention that deals with crimes against humanity under its active agenda in 2016. In June 2017, the ILC adopted draft Articles for Crimes against Humanity Convention. The draft Convention is prepared by experts under the auspices of Crimes against Humanity Initiative. International Law Commission Third Report on Crimes against Humanity Sixty-ninth Session A/CN.4/704 (2017); and Crimes against Humanity Initiative available at http://law.wustl.edu/WashULaw/crimesagainsthumanity/about/fact-sheet-about-the-crimes-against-humanity-initiative/. Accessed 20 September 2017. The draft can be accessed from https://law.wustl.edu/harris/crimesagainsthumanity/?p=1144. Accessed 12 June 2016. For a good collection of materials on crimes against humanity and the draft Convention, see generally the relevant chapters in, Sadat 2011.
- 198.
For a detailed discussion of this approach, see Heller 2012, pp. 202–48.
- 199.
For the discussion of the Charges , see infra Sect. 5.3.
- 200.
Ambos 2014, pp. 39–40; Werle and Jessberger 2014, p. 330; Bassiouni 2013, p. 158; Cassese 2013, pp. 189–91; Schabas 2010, pp. 140–43; Bassiouni 1999; Cryer et al. 2010, pp. 236 et seq; Cassese 2002, pp. 355–356; Bassiouni and Wise 1995; Hanniken 1988, p. 285; Roht-Arriaza 1990, pp. 451–512; Parker 1988–1989; De Hoogh 1996, pp. 44–63; Zalaquett 1990; Ragazzi 2000; Christenson 1987–1988, pp. 585–648; Tam 2010; Bassiouni 1996a, b; Ragazzi 1999; Randall 1988; Scharf 1996, pp. 2–39; Goodwin-Gill 1991. See also Federal Court of Australia, Nulyarimma v Thompson, Judgment of 1 September 1999 §§ 18–21; Mitchell 2000, pp. 362–383; Peters 1999; Van Schaack 1999, pp. 787–850; Cassese et al. 2001, pp. 234–236.
- 201.
Cf. Articles 270 through 283 of the Criminal Code . And also see Article 8 of the Rome Statute , Article 28D of the African Court Statute, and the Geneva Conventions of 1949 and the Additional Protocols.
- 202.
- 203.
The Article read that: ‘Whosoever, in time of war, armed conflict, or occupation, organizes, orders or engages in, against the civilian population and in violation of the rules of public international law and of international humanitarian conventions. …’ Article 282 of the Penal Code .
- 204.
- 205.
Article 282 War crimes against the Civilian Population
Whosoever, in time of war, armed conflict or occupation, organizes, orders or engages in, against the civilian population and in violation of the rules of public international law and of international humanitarian conventions:
-
(a)
killings, torture or inhuman treatment, including biological experiments, or any other acts involving dire suffering or bodily harm, or injury to mental or physical health; or
-
(b)
willful reduction to starvation, destitution or general ruination through the depreciation, counterfeiting or systematic debasement of the currency; or
-
(c)
the compulsory movement or dispersion of the population, its systematic deportation, transfer or detention in concentration camps or forced labor camps; or
-
(d)
forcible enlistment in the enemy’s armed forces, intelligence services or administration; or
-
(e)
denationalization or forcible religious conversion; or
-
(f)
compulsion to acts of prostitution, debauchery or rape; or
-
(g)
measures of intimidation or terror, the taking of hostages or the imposition of collective punishments or reprisals; or
-
(h)
the confiscation of estates, the destruction or appropriation of property, the imposition of unlawful or arbitrary taxes or levies, or of taxes or levies disproportionate to the requirements of strict military necessity,
is punishable with rigorous imprisonment from five years to life, or, in cases of exceptional gravity, with death.
-
(a)
- 206.
Article 285 Pillage, Piracy and Looting.
Whosoever organizes, orders or engages in looting, piracy, pillage, economic spoliation or the unlawful destruction or removal of property on pretext of military necessity,
is punishable in accordance with Article 282. In addition, see Article 282(h) of the Penal Code .
- 207.
Article 288 Use of illegal means of combat.
Whosoever uses, or orders to be used, against the enemy any means or method of combat expressly forbidden by international conventions to which Ethiopia is a party, or by the standing orders of the Ethiopian Army,
is punishable with simple imprisonment for not less than three months, or, if the offence is grave, with rigorous imprisonment from three years to life; in the gravest cases the offender is punishable with death.
- 208.
Article 283 War Crimes against wounded, sick or shipwrecked persons.
Whosoever, in the circumstances defined above, organizes, orders engages in:
-
(a)
killings, torture or inhuman treatment or other acts entailing dire suffering or physical or mental injury to wounded, sick or shipwrecked persons, or to members of the medical or first-aid services; or
-
(b)
the destruction, rendering unserviceable or appropriation of supplies, installations or stores belonging to the medical or first-aid services, in a manner which is unlawful, arbitrary or disproportionate to the requirements of strict military necessity,
is punishable in accordance with Article 282.
-
(a)
- 209.
Article 284 War Crimes against prisoners and interned persons.
Whosoever, in the circumstances defined above:
-
(a)
organizes, orders or engages in killings, acts of torture or inhuman treatment or acts entailing dire suffering or injury to prisoners of war or interned persons; or
-
(b)
compels such persons to enlist in the enemy’s armed forces or intelligence or administrative services,
is punishable in accordance with Article 282.
Moreover, the Code criminalized commission of the following acts:
-
(a)
kills or wounds an enemy who has surrendered or laid down his arms, or who for any other reason is incapable of defending, or has ceased to defend, himself; or
-
(b)
mutilates a dead person; or
-
(c)
lays hands on or does violence to a wounded, sick or dead enemy on the field of battle, with intent to rob or plunder him; or
-
(d)
orders one of the above acts. Article 287 of the Penal Code . See also Article 292, which made maltreatment of protected persons punishable.
-
(a)
- 210.
Articles 283, 284 and 291 of the Penal Code .
- 211.
Article 283(a) of the Penal Code .
- 212.
Article 292 of the Penal Code.
- 213.
Article 282(g) of the Penal Code.
- 214.
Article 282(d) of the Penal Code.
- 215.
Article 282(e) of the Penal Code.
- 216.
Article 282(f) of the Penal Code.
- 217.
Articles 282(h) and 285 of the Penal Code .
- 218.
Articles 282(h) and 285 of the Penal Code.
- 219.
Article 282(a) of the Penal Code.
- 220.
Article 282(h) of the Penal Code.
- 221.
Article 282(b) of the Penal Code.
- 222.
Articles 293 and 294 of the Penal Code.
- 223.
Article 288 of the Penal Code.
- 224.
Articles 23, 58 and 59 of the Penal Code .
- 225.
- 226.
IMT Judgment (1946), para 447. For a general discussion on individual criminal responsibility and the modes of participation in international criminal law, and a collection of relevant materials, see Triffterer and Ambos, 2016, pp. 978 et seq; Werle and Jessberger 2014, pp. 192 et seq; Ambos 203, pp. 103 et seq.
- 227.
Articles 32–39 of the Penal Code . Cf. Articles 32 et seq of the Criminal Code .
- 228.
The Criminal Code substantially mirrors the modes of participation under the old Penal Code. Only minor changes in the usage of terms, and trivial additions, have been made in the new Criminal Code . For instance, see Article 32(1)(c) where the word ‘infant’ has been added. See also Article 32(3) where different words are used, although the substance is the same as its counterpart under the Penal Code .
- 229.
The provision reads as follows: Article 32.—Principal Act: Offender and Co-offenders
-
1.
A person shall be regarded as having committed the offence and shall be punished as such if:
-
a.
he 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; or
-
c.
he employs a mentally deficient person for the commission of an offence or knowingly compels another person to commit an offence.
-
a.
-
2.
(…)
The modes of participation under the new Criminal Code are congruent with the ones in the above-quoted Article of the Penal Code . Cf. Article 32 of the Criminal Code .
-
1.
- 230.
Article 32(1)(a) of the Penal Code.
- 231.
Article 32(1)(a) of the Penal Code . Same wording is transposed to the new Criminal Code. Cf. Article 32(1)(a) of the Criminal Code .
- 232.
- 233.
Article 32(1)(a) with Article 32(3) of the Penal Code. Cf. Article 32(1)(a) with Article 32(3) of the Criminal Code .
- 234.
Article 32(1)(b) of the Penal Code . The new Criminal Code used the same wording. Cf. Article 32(1)(b). As Graven puts it ‘to associate oneself mentally with the commission of an offence does not mean that one merely hopes for the doer’s success, that one participate only spiritually in the offence, for the punishment would then be unjustified. If the moral offender is punishable, therefore, it is because, although he takes no part in the material perpetration of the offence, he commits the offence in the sense that he fully sides with the material offender and adopts as his own the offence and the desired result.’ Graven 1965, p. 94. Bu it is not meant to exclude essential contributions by the moral offender , which do not involve perpetration of the material element.
- 235.
Article 32(1)(b) with Article 32(3) of the Penal Code .
- 236.
Article 25(3)(a), second alternative, of the Rome Statute .
- 237.
Cf. Article 25(3)(a), third alternative, of the Rome Statute.
- 238.
Articles 32(1)(b) with Article 32(3). It can be said that the person who carried out the objective elements is a material offender under Article 32(1)(a), whereas the moral offender with an essential role to play falls under Article 32(1)(b). However, for the sake of clarity and to avoid unnecessary complication, this kind of scenarios should be considered and understood as involving co-offenders—the equivalence of joint commission under international criminal law. Otherwise, charging the two offenders with different modes under the above subparagraphs would not only be technically sophisticated but also delink the course of events in which the offenders commit the crime. The fact that they design the criminal plan together and essentially contribute to the realization of same should make them co-perpetrators. By advancing such interpretation, it is apt to consider them as co-offenders. Admittedly, the modes under the Penal Code and the new Code have not been refined and clarified by the case law. Even in the Red Terror trials, although there was a pressing need to do so, the court failed, and missed the opportunity, to refine and clarify the modes of participation .
- 239.
As regards modes of criminal liability, there are differentiated and unitary models. In the latter case, the modes are not necessarily categorized into various forms, such as, primary and secondary modes, and other subcategories. The reason is that such categorization is inconsequential. In other words, same form of punishment is applied across the board, irrespective of the mode and degree of participation. Whereas, according to the differentiated model, which is, relatively, a widely accepted approach, the modes of participation are categorized into different forms, which will then have an implication at the sentencing stage. Even if it does not, the approach advocates compartmentalization of the modes and degrees of participation by which individuals participate in the commission of crimes. In this model, where there are different categories of modes of participation , distinguishing one mode from the other is important. There are three approaches that can help to do so, namely, the objective, subjective and control theories. According to the objective theory, principal perpetrators are those who carry out the objective elements of the crime, whereas for the subjective theory what matters is not who carries out the objective elements of the crime, but who possesses the relevant subjective element (attitude). As aptly observed, ‘if a person has the mind of a perpetrator (animus auctoris), he will be treated as a principal regardless of the importance of his factual contribution; if he only wishes to help another person commit the crime (animus socii), he will be convicted as an aider and abettor even if he personally fulfils every element of the definition of the crime.’ Weigend 2011, p. 95. For the control theory, which was developed by the German scholar, Claus Roxin, the distinguishing criterion between principal and accessory is not based on a pure test of who carried out the actus reus or possessed the subjective attitude. Instead, the defining factor is functional domination or control over the commission of the act. Based on the wording and the modes of participation provided under the Penal Code , it is convincing to conclude that the latter theory is the best to explain how the modes of participation are differentiated in Ethiopia . The subjective theory could not be used because, based on this theory, a material offender under Article 32(1)(a) can hardly be regarded as a principal offender. Moral offenders, as opposed to the objective theory, were regarded as principal offender under the Penal Code . Thus, based on the wording of the Penal Code a merely subjective or objective criterion is not sufficient to distinguish modes of participation under the Code. The terminology and classification of modes under the Codes warrant adoption of the control theory. Using a pure subjective or objective criterion would be misreading the intention of the drafters. Distinguishing modes of participation is important and necessary, not necessarily for punishment, but to fulfil the legal elements of an indictment. Article 111 of the Criminal Procedure Code . As a rule, principal and secondary modes of participation are punishable with same (forms of) punishment. See Articles, 35 and 36 of the Penal Code . From this point of view, differentiating the modes might be inconsequential or of lesser importance. On the Claus Roxin Control Theory and for a general discussion of these issues in international criminal law, see Roxin 2011, pp. 191–205; Fletcher 2012, pp. 1029–1044; Werle and Jessberger 2014, p. 198; Ambos 2013, pp. 146 et seq; Triffterer and Ambos 2016, pp. 987 et seq; Weigend 2011, p. 95; Vest 2014, pp. 295–309; Gil and Maculan 2015, pp. 351 et seq; Wirth 2012, pp. 980 et seq; Werle and Burghardt 2014, pp. 301–318; Jessberger and Geneuss 2008, pp. 855 et seq; van der Wilt 2009, pp. 308–314; Jain 2011, pp. 179–190; Stewart 2012, pp. 165–218; Werle 2007, pp. 953–975; Goy 2012, pp. 1–70. See also Ohlin 2014, pp. 325–343; Ohlin 2012, pp. 771–797; van Sliedregt 2012, pp. 1171–1188; Weigend 2014, pp. 253–266.
- 240.
Article 32(1)(c) of the Penal Code . Using ‘an infant’ as innocent intermediary to commit a crime is added to the list of means under the new Criminal Code . Cf, Article 32(1)(c).
- 241.
However, this is not to say that the indirect perpetrator who uses a responsible agent could escape legal responsibility. Besides, the modes under Article 32(1)(b) of the Penal Code (or Article 32(1)(b) of the Criminal Code ), the indirect perpetrator could be punished as an instigator, an accomplice or other accessorial modes. Although in terms of punishment, it is not necessarily more lenient than for principal modes, it is apt to properly characterize the mode of participation and ascribe proper punishment. Since there is a possibility that principal offenders could receive a more severe punishment than the secondary participant. The moral condemnations of the two modes is also not of the same weight.
- 242.
Articles 32(3) and 34 of the Penal Code .
- 243.
The Penal Code stated that ‘[w]hoever intentionally begins to commit an offence and does not pursue or is unable to pursue his criminal activity to its end, or who pursues his criminal activity to its end without achieving the result necessary for the completion of the offence shall be guilty for an attempt an attempt.
The offence is deemed to be begun when the act performed clearly aims, by way of direct consequence, at its commission .’, Article 27(1) of the Penal Code .
- 244.
On the punishability of attempt, the Code read ‘… (2) An attempted offence is always punishable save as is otherwise provided by law. A mere attempt to instigate or participate in an offence does not come within the provisions of the law unless it is expressly provided to the contrary.
(3) In the ease of an attempted offence the offender will be liable to the punishment attaching to the offence he intended to commit:
Provided that if circumstances so justify the court may reduce the punishment within the limits provided by law. (Article 184).’ Article 27(2)(3) of the Penal Code .
- 245.
The general part of the Code unequivocally enunciated that ‘[a]cts which are merely designed to prepare or make possible an offence by procuring the means or creating the conditions for its commission are not punishable …’, Article 26 of the Penal Code .
- 246.
Article 26 of the Penal Code. Cf. Article 26 of the Criminal Code .
- 247.
Article 286 of the Penal Code .
- 248.
Article 35 of the Penal Code.
- 249.
‘Whosoever intentionally induces another person whether by persuasion, promises, money, gifts, threats or otherwise to commit an offence shall be regarded as guilty of having incited the commission of the offence.
The person who incited the commission of an offence shall be liable to punishment provided the offence was at least attempted.’ Article 37(1) of the Penal Code . Cf. Article 36 of the Criminal Code .
- 250.
Article 286 of the Penal Code . Cf. Article 274 of the Criminal Code .
- 251.
For discussion on the status of incitement to commit core crimes under international criminal law, see Ambos 2013, pp. 132, 170. So far it is recognized only for genocide , not other core crimes .
- 252.
Article 36 of the Penal Code.
- 253.
Article 36 of the Penal Code.
- 254.
Article 39 of the Penal Code .
- 255.
As stipulated in the Code ‘[w]here two or more persons enter into an agreement to achieve an unlawful design or to commit an offence the provision regarding participation and aggravation of punishment due to the abovementioned circumstances are applicable. Article 81(d)
(2) The foregoing provision shall, however, not affect the provision contained in the Special Part of the Code relating to conspiracy against the essential interest of the State and defence, the forming of unlawful associations and the participation therein as well as to the organization of gangs or unlawful wrongdoers (Article 269, 286, 313 and 472).’ Articles 37 and 286 of the Penal Code .
- 256.
For instance, the Rome Statute does not criminalize conspiracy to commit core crimes . For a general discussion on conspiracy, see Okoth 2014.
- 257.
Articles 69 and Article 70(3) of the Penal Code . Cf Article 73 of the Criminal Code and Article 28 of the ICC Statute.
- 258.
For a summary and additional sources, see Triffterer and Ambos 2016, 1056–1106; Werle and Jessberger 2014, pp. 221–233; Ambos 2013, pp. 181–232; Cryer et al. 2010, pp. 387–400; Nerlich 2007, pp. 665–682; Bonafe 2007, pp. 599–618; Sliedregt, pp. 420–432; Sivakumaran 2012, pp. 1129–1150; Meloni 2007, pp. 619–637; Karsten 2009, pp. 983–1004; Vetter 2000, pp. 90–110; Ronen 2010.
- 259.
- 260.
- 261.
Article 70(2) of the Penal Code.
- 262.
Article 70(2) of the Penal Code .
- 263.
This means that whenever the subordinates were able to discuss the nature of the acts, they were required to do so and to refuse to execute illegal orders. Otherwise, blindly executing illegal orders of the superiors would not be inconsequential.
- 264.
Articles 567 and 576 of the Penal Code . See also Graven 1961, p. 58.
- 265.
Admittedly the new Criminal Code provides a general provision which deals with participation of juridical persons in the commission of crimes. It also defines the categories of juridical persons which can be held responsible for participating in the perpetration of crimes. In this regard it is progressive. However, it should have extended corporate (or juridical person’s) responsibility to the perpetration of core crimes . See Articles 23(3), 34, 46, 90, 142, 326, 329, 352, 354, 355, 427, 485, 513, 524, 530, 573, 585, 599, 607, 609, 632, 638, 645, 698, 701, and 716 of the Criminal Code . For criminal liability of legal persons in the cases of petty crimes, see Articles 740(3), 752(4), 768, 770, 777, and 839 of the Criminal Code .
- 266.
Article 46C of the Statute of the African Criminal Court recognizes corporate criminal liability. For general discussions on corporate criminal responsibility for core and transnational crimes in international criminal law, see Colvin 1995, pp. 1–44; Nerlich 2010, pp. 895–908; Farrell 2010, pp. 873–894; Crady 1996, 1053–1064; Kaleck and Saage-Maass 2010, pp. 699–724; Stessens 1994, pp. 493–520; Stewart 2014, pp. 121–206; Bernaz 2015, pp. 313–330; Kyriakakis 2016.
- 267.
- 268.
Articles 48–51 of the Penal Code.
- 269.
Articles 66–68 of the Penal Code.
- 270.
Article 71 of the Penal Code.
- 271.
Article 76 of the Penal Code.
- 272.
- 273.
Article 52 of the Penal Code .
- 274.
Article 52 of the Penal Code.
- 275.
Article 53 of the Penal Code and Article 5 of the Criminal Procedure Code .
- 276.
Article 5 of the Criminal Procedure Code.
- 277.
Article 54 of the Penal Code .
- 278.
Articles 188–93 of the Penal Code.
- 279.
Articles 184–187 of the Penal Code.
- 280.
The primary or principal punishments included penalties entailing loss of liberty, the death penalty , compulsory labour, confiscation of property, and a fine; see Articles 88–116 of the Penal Code . Cf. Articles 90–120 of the Criminal Code .
- 281.
Those included reprimand, caution, apology, admonishment, dismissal, and deprivation of rights, see Articles 120–127 of the Penal Code . Cf. Articles 122–128 of the Criminal Code .
- 282.
Articles 281 and 282 of the Penal Code.
- 283.
Articles 116–118 of the Penal Code . Cf. Article 117 of the Criminal Code .
- 284.
Article 286 of the Penal Code.
- 285.
Articles 85–87 of the Penal Code . The Code plainly stated that ‘…The penalty shall be determined according to the degree of individual guilt, taking into account the dangerous disposition of the offender, his antecedents, motive and purpose, his personal circumstances and his standard of education, as well as the gravity of his offence and the circumstances of its commission .’ Hence, the penalty should be tailored to fit the factors outlined under the law. Article 86 of the Penal Code . Cf. Articles 88–89 of the Criminal Code . In relation to calculation of the sentence the Penal Code succinctly stated that [i]n passing a sentence with deprivation of personal liberty, the Court shall specify what period of remand shall be deducted from the period of the sentence: Provided that no such deduction shall be made or a deduction for a limited period shall be made if such remand or a prolongation thereof is attributable to the offender. See Article 114(1) of the Penal Code .
- 286.
Articles 79–84, and 184–193 of the Penal Code . Cf. Articles 82–86.
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Tessema, M.T. (2018). The Ethiopian Legal Framework for the Prosecution of Crimes Under International Law. In: Prosecution of Politicide in Ethiopia. International Criminal Justice Series, vol 18. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-255-2_3
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