Criminal Accountability for Derg Crimes: Prosecution of Politicide

Tessema, Marshet Tadesse

doi:10.1007/978-94-6265-255-2_5

Criminal Accountability for Derg Crimes: Prosecution of Politicide

Marshet Tadesse Tessema⁴

Chapter
First Online: 27 September 2018

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Part of the book series: International Criminal Justice Series ((ICJS,volume 18))

Abstract

The state of commission has a duty to ensure accountability for the perpetration of horrendous crimes, such as, genocide and crimes against humanity. Following the fall of the military junta in 1991, the Ethiopian government attempted to dispense justice for the egregious crimes that were committed during the reign of the predecessor regime. In fact, the new government embarked on extensive investigation and prosecution of Derg crimes. This chapter focuses on the prosecution of Derg officials, particularly those who were in leadership positions, for the crime of politicide and other ordinary crimes. It shows that by and large the conviction of Derg officials for the crime of politicide has a legal foundation under the Penal Code of Ethiopia ; hence it is not only justifiable but also fitting, given that crimes against humanity were and still are not criminalized as such.

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Notes

1.
The Special Public Prosecutor’s Office 2010 (hereafter ‘the SPP Dossier 2010’). See also the SPP Report 1994. The SPP Dossier is a 441-page long book that was published in Amharic. In the book, the Office briefly dealt with the structure of the Derg regime, Derg crimes, and the prosecution of the crimes. It seems that the book was written with the aim to fulfil the SPP ’s ancillary mandate of establishing an historical record. However, the book is nothing like the report of a truth finding body. This is so because what is included in the book is largely the brief outline of matters that were part of the courts’ archive. The book is not easily accessible.
2.
The SPP Dossier 2010 Annex, Table II.
3.
The SPP Dossier 2010 Table, II; Elgesem and Aneme 2009, p. 37. Since the SPP ’s investigations and operationalization of the whole accountability processes took longer than expected, some Derg officials avoided accountability through death before the SPP laid charges against them. These include: General Getachew Shibashi; Major Ali Musa (‘the butcher of Bale’); Lieutenant Colonel Daniel Assefaw; Major Yohannes Mitiku, and Major Biranu Kebede. See SPP Dossier 2010, Annex, Table IV.
4.
On the plausible reasons for the delay, see infra Sect. 6.2.4. The confrontation of terror before Ethiopian courts was at the beginning reported by several international media outlets although that gradually waned away. YouTube 2015, 2016; IOL 2006; BBC News 2006. The Independent 2006; The Irish Times 2006; The Washington Post 2006.
5.
Colonel Teka Tulu, Colonel Demese Deresa Tulu, Colonel Negash Dubale, General Seyume Mekonnen, Colonel Negatu Gebre-Tsadek, Fantaye Yedego, Colonel Aragaw Eshete, Nuguse Fanta, and Mamo Ejigu were some of the senior Derg officials who died during the proceedings after the criminal charges were laid against them. The SPP Dossier 2010, p. 141 and Annex, Table IV.
6.
The SPP Dossier 2010, Annex, Table II.
7.
Ibid.
8.
The SPP Dossier 2010, pp. 170–71. See also Kidane 2002 p. 677; Howland 2000, p. 426; Elegsen and Aneme 2009, pp. 3 and 37.
9.
The other cases which fell within this category are, among others, Federal High Court of Ethiopia , Special Prosecutor v Debela Dinsa et al, Criminal File No. 912/89; Federal High Court of Ethiopia , Special Prosecutor v Legesse Asfaw et al, Criminal File No. 1264/93; Federal High Court of Ethiopia , Special Prosecutor v Tesfayie Woldesilassie et al, Criminal File No. 206/93; Federal High Court of Ethiopia , Special Prosecutor v Melaku Tefara et al Criminal File No. 03112/97.
10.
The SPP Dossier 2010, p. 146.
11.
Howland 2000, p. 426; the SPP Dossier 2010, pp. 170–171.
12.
The SPP Dossier 2010, p. 134.
13.
Stan and Nedelsky 2013, p. 170; Elegsen and Aneme 2009, p. 37. It is reported that 508 accused were charged before Amhara Regional Supreme Court; 198 before the Harari Supreme Court; and 402 before the Supreme Court of the Southern Nations, Nationalities and People’s region. It has to be noted that some of the Red Terror trials that were filed before the Supreme Courts at the regional levels were conducted in the working languages of those regions. The Oromia Regional State and Tigray Regional State have Afaan Oromo and Tigragna as their working languages, respectively. Thus, the trials in those regions were conducted in their respective languages.
14.
The SPP Dossier 2010, Annex, Table II, No. 4.
15.
Ibid.
16.
Ibid.
17.
The SPP Dossier 2010, Appendix, Table III.
18.
The SPP Dossier 2010, Annex, Table II, No. 4.
19.
The SPP Dossier 2010, Annex, Table III, A.
20.
On the pardoning of the death sentences, see infra Sect. 5.4.
21.
For more discussion on this, see infra Sect. 5.4.
22.
The SPP Dossier 2010, Annex, Table III, B and C.
23.
The SPP Dossier 2010, Annex, Table III, D.
24.
The Mengistu et al case, pp. 1069–1070.
25.
For an account on the number of victims during the Derg rule, see supra Sect. 2.5.
26.
The Red Terror Victims , Families and Friends Association established the Museum in 2008. It is located at Meskel Square near the place where Mengistu declared the official terror by performing the theatrical act of smashing three bottles filled with a blood-like substance. The official website of the Red Terror Martyrs Memorial Museum available at http://rtmmm.org/. Accessed 16 July 2016). In this piece, the Museum quoted the estimate of Red Terror victims available http://rtmmm.org/hawelt1.html. Accessed 16 July 2016. Inside the Museum, the estimation of Amnesty International was posted on the wall.
27.
The SPP Dossier 2010, Annex, Table II.
28.
Ibid.
29.
United States Court of Appeals, Eleventh Circuit, Hirute Abebe-Jira; Edgegayehu Taye; Elizabeth Demissie, Plaintiffs-Appellees v Kelbessa Negewo, Defendant-Appellant, 72 F. 3d 844, decision of 10 January 1996. See also Smother Nightmare of Torture in Ethiopia Is Relived in an Atlanta Court, New York Times 1993. In Ethiopia , he was convicted in absentia and sentenced to life imprisonment by the Sixth Criminal Division of the Federal High Court in May 2002. In 2006, he was deported from the US to serve his life sentence. His deportation was due to violation of the US immigration law. Mekonnen 2013, p. 107. See Ethiopia Arrest Kelbessa available at http://nazret.com/blog/index.php/2006/10/22/ethiopia_arrests_kelbesa_negewo_at_addis. Accessed 17 July 2016.
30.
Trial Watch 2016, New York Times 2006. The victims who filed the civil suit were Hirute Abebe-Jira, Edgegayehu Taye, and Elizabeth Demissie.
31.
Hirute Abebe-Jira et al v Kelbessa Negewo, 72 F. 3d 844, decision of 10 January 1996.
32.
Hirute Abebe-Jira et al v Kelbessa Negewo, 72 F. 3d 844, decision of 10 January 1996.
33.
It is inconceivable for a victim to successfully claim damages in the near future because of the statute of limitation on possible civil suits against Derg officials.
34.
The SPP v Colonel Mengistu et al , Charge, SPP Criminal File 401/94, October, 1994 as amended in 1995, and The SPP v Colonel Mengistu et al , First Criminal Division, Federal High Court , Criminal File 1/95.
35.
For the list of accused in the Mengistu et al case during the submission of the charge by the SPP to the Central High Court, see Annex Five.
36.
The SPP v Colonel Mengistu Haile-Mariam et al, Charge, October 1994.
37.
The SPP Dossier 2010, p. 141.
38.
The SPP Dossier 2010, p. 141.
39.
For a list of the accused who were tried in absentia, see Annexes Five and Six. At the outset, 26 individuals were charged in absentia but some of the accused died before the trial, whereas the charge against Tiruneh Haile Selassie was severed.
40.
Article 161 Conditions for trying accused person in his absence.
1. 1.
  Where the accused fails without good cause to appear on the day fixed for the hearing, the court shall record his absence and may direct that he be tried in his absence in accordance with the provisions of this Section.
2. 2.
  No accused person may be tried in his absence under the provisions of this Section unless he is charged with:
  1. (a)
    an offence punishable with rigorous imprisonment for not less than twelve years; or
  2. (b)
    an offence under Articles 354–365 Penal Code punishable with rigorous imprisonment or fine exceeding five thousand dollars.
41.
Article 127 the Ethiopia ’s Criminal Procedure Code 1961.
42.
Ibid., Article 161.
43.
Ibid., Article 161(2).
44.
The law stated: ‘Where the court decides to hear the case in the absence of the accused it shall order the publication of the summons which shall show the date fixed for the hearing. It shall contain a notification to the accused that he will be tried in his absence if he fails to appear.’ Article 162 of the Criminal Procedure Code Proclamation 185 of 1961.
45.
Ibid., Articles 162–163.
46.
Ibid., Article 197. The application for setting aside the judgment rendered in default should be submitted to the court that delivered the judgment in question—Federal High Court in the instant matter. The law stated that: ‘Where the application is allowed under Article 199, the court shall order a retrial and the public prosecutor shall file the charge in a court having jurisdiction.’ Article 202(1) of the Criminal Procedure Code . However, once the application is dismissed, there is no appeal against it. The accused can lodge an appeal against the sentencing judgment within fifteen days from the time of dismissal of the application. See Article 202 of the Criminal Procedure Code . It is not clear why the appeal in such a case is limited to the sentencing decision.
47.
Article 164, Articles 197–199 of the Criminal Procedure Code 1961.
48.
Ibid., Article 198.
49.
Kelebesa Negawo is one of those accused who were deported to serve the life imprisonment imposed on him in absentia. Nevertheless, some have applied for a fresh retrial or for setting aside the judgment rendered in their absence. While some of these applications were accepted, the other were rejected; for more on this, see infra Sect. 6.1.
50.
The SPP v Mengistu et al , Charges , Criminal File no. 1/94; the SPP Dossier 2010, pp. 131–143.
51.
For a discussion on the modes, see supra Sect. 3.4.
52.
The SPP v Mengistu et al , Charges , Criminal File No. 1/94 as amended, pp. 6–7. The pages of the case that the author cites in this work, unless otherwise indicated, correspond to the pages of the Mengistu et al case report as published by the Federal Supreme Court in 2009.
53.
Mengistu et al Criminal File no. 1/94, p. 7, the SPP Dossier 2010, p. 131.
54.
The SPP v Mengistu et al Charges 1994, pp. 6–7 (translation by Tiba 2011, p. 169; Aneme 2009, p. 4 with a minor modification by the author of this book).
55.
Supra Sect. 3.4.
56.
The SPP v Mengistu et al 1994, pp. 7–229. The SPP Dossier 2010, p. 142.
57.
The SPP v Mengistu et al 1994, p. 7; the SPP Dossier 2010, pp. 141–142 (translation by Aneme 2009, p. 4; Tiba 2011, p. 170 with a minor modification by the author of this book).
58.
The SPP v Mengistu et al 1994, pp. 7–103; the SPP Dossier 2010, pp. 141–142.
59.
The SPP v Mengistu et al 1994, pp. 7–229. At first glance the number of counts may seem long compared to the charges in ordinary criminal prosecution ; however, by bearing in mind that the charges involve the commission of international crimes, where several individuals participate in the commission of a wide array of acts, the list could not be regarded as long. Recently, a former guard at Auschwitz, Oskar Göring (‘accountant Auschwitz’), was charged with 300,000 counts of accessory to murder. CBS New 2015.
60.
The SPP v Mengistu et al 1994, pp. 7–17; the SPP Dossier 2010, p. 142.
61.
The SPP v Mengistu et al 1994, Count 5.
62.
The summary execution of the 59 former officials of the Haile Selassie regime was mentioned at the top (first count) of the list of the counts contained in the second charge, while the killing of the Emperor was the fifth count. Tadesse Biru, as one of the victims , was mentioned in count two of the second charge. See the SPP v Mengistu et al 1994, pp. 7–9.
63.
The SPP v Mengistu et al 1994, pp. 17–103; the SPP Dossier 2010, p. 142.
64.
The SPP v Mengistu et al 1994, Counts 17–171.
65.
The SPP v Mengistu et al 1994, Count 91.
66.
The SPP v Mengistu et al 1994, Count 92. This count was later dropped due to insufficient evidence.
67.
The SPP v Mengistu et al 1994, Count 93.
68.
The SPP v Mengistu et al Charge, 1994, Count 38. The longest list of murdered victims was provided in Count 133 where the SPP alleged that 286 persons who had been labeled as members of the Ethiopian People’s Revolutionary Party and the Ethiopian Democratic Union were killed.
69.
The SPP v Mengistu et al Charge, Count 129.
70.
The SPP v Mengistu et al Charge, 1994, pp. 87–90.
71.
The SPP v Mengistu et al Charge, 1994, pp. 90–103.
72.
Articles 522 and 538 of the Penal Code . The SPP v Mengistu et al Charges 1994, pp. 103–229. In this part, the Special Prosecutor charged the accused alternatively with aggravated homicide and causing serious bodily injuries . The legal basis for such alternative charging was the Criminal Procedure Code . Article 113 of the Criminal Procedure Code states that when it is doubtful as to what crime has been committed, the prosecutor can charge the accused ‘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.’ Even in a case where the prosecutor failed to alternatively charge the accused with a lesser crime, a court has the power to do a legal re-characterization of the charge for the lesser crime. The provision reads that: ‘Where the evidence shows that the accused committed an offence with which he might have been charged in the alternative and the offence is within the jurisdiction of the court, he may be convicted of such offence notwithstanding that he was not charged with it, where such offence is of lesser gravity than the offence charged.’ Thus, even if the Special Prosecutor did not alternatively charge the accused for aggravated homicide and causing injuries, the court had the legal authority to convict the defendants for lesser crimes, including aggravated homicide , as genocide is more serious in nature than other ordinary crimes.
73.
The SPP v Mengistu et al 1994, Charges 1994, p. 229. Article 416 of the Penal Code on the basis of which this charge was based read as follows: ‘Any public servant who arrest or detains another except in accordance with the law, or who disregard the forms and safeguard prescribed the law, is punishable with rigorous imprisonment not exceeding five years, and fine.’
74.
The SPP v Mengistu et al Charges , 1994, p. 229. The provision on Abuse of Power read as follows:
1. ‘(1)
  Public servants who with intent to procure for themselves or another an unlawful advantage or to do injury to another:
  1. (a)
    apart from the cases especially provided for below, misuses their official position or the powers proper to their office, whether by a positive act or a culpable commission ; or
  2. (b)
    exceed the power with which they are officially invested; or are punishable with simple imprisonment or fine except where a specific provision prescribes a more severe penalty .’
75.
Articles 123 et seq of the Criminal Procedure Code . The stages of regular criminal proceedings under the Ethiopian laws are: (a) Communication of commission /omission of crime to the investigating authority (usually police). However, in the Red Terror cases, the investigations were carried out by the SPP ; (b) Investigation stage; (c) Prosecution (framing and submission of charge); (d) Trial (includes reading the charge to the accused by the court; preliminary objections and ruling on same, if any; confirmation of charge; production of evidence by the prosecution ; ruling on the charges ; and asking the defense counsel to enter defense , if necessary); (e) Judgment (conviction/acquittal and sentencing); and (f) Appeal .
76.
Article 29 of the Criminal Procedure Code 1961.
77.
The SPP Dossier 2010, p. 146.
78.
Ibid., p. 140, Mayfield 1995, p. 567.
79.
Mayfield 1995, p. 567.
80.
The SPP v Mengistu et al Preliminary Objection presented by the Defense Counsels 1995. The SPP v Mengistu et al , Reply to the Counsels for the Accused’s Objections , SPP Investigation File No. 401/93, submitted 23 May 1995. (Hereinafter ‘the SPP Reply to the Objections ’), Aneme 2009, p. 6.
81.
The SPP v Mengistu et al , Preliminary Objection Presented by the Defense Counsels 1995, the SPP Reply to the Objections 1995.
82.
The SPP v Mengistu et al , Preliminary Objection presented by the Defense Counsels 1995. See also Aneme 2009, p. 7.
83.
Article 12 of the Transitional Period Charter.
84.
The SPP Reply to the Objections 1995, p. 15. The Transitional Period Charter in its Part Three stated the composition and power of the Transitional Government, Articles 6–9.
85.
Article 8 of Transitional Period Charter.
86.
The SPP Reply to the Objections 1995, p. 15.
87.
The SPP Reply to the Objections 1995, p. 16.
88.
The SPP v Mengistu et al Preliminary Objection presented by the Defense Counsels 1995; the SPP Dossier 2010, p. 147; Aneme 2009, pp. 9–10.
89.
The SPP Dossier 2010, p. 147.
90.
The provision of the 1955 Constitution read that ‘by virtue of His Imperial Blood, as well as by the anointing that He has received, the person of the Emperor is scared, and His dignity is inviolable and His powers indisputable. He is consequently entitled to all honors due to Him in accordance with tradition and the present constitution. Any one so bold as to seek to injure the Emperor is punishable.’
91.
Article 2137 of the Civil Code reads as follows: ‘No action for liability based on an offence committed by Him may be brought against His Majesty the Emperor of Ethiopia .’
92.
The SPP Dossier 2010, p. 147; the SPP Reply to the Objections 1995, p. 9.
93.
The SPP Reply to the Objection 1995, p. 9, the SPP Dossier 2010, p. 155. Proclamation 1 of 1974; Proclamation 2 of 1974; Proclamation 110 of 1977 were the laws on the bases of which the Special Prosecutor contended that the accused were not Head of State.
94.
Article 3 of Proclamation 1 of 1974.
95.
Article 2 of Proclamation 2 of 1974.
96.
The SPP Reply to the Objections 1995, pp. 8–9; the SPP Dossier 2010, p. 154.
97.
Preamble, para 3, Proclamation 1 of 1974. See also the SPP Reply to the Objections 1995, pp. 8–9.
98.
The law which deposed the Emperor stated that: ‘(a) The Constitution of 1955 is hereby suspended; and (b) The new draft constitution, the promulgation of which [had] been demanded by the Armed Forces Council as a matter of urgency, shall be put into effect after necessary improvements are made to include provisions reflecting the social, economic and political philosophy of the new Ethiopia and to safeguard the human rights of the people.’ Article 5 Proclamation 1 of 1974.
99.
The SPP Reply to the Objections 1995, p. 9.
100.
The SPP Reply to the Objections 1995, p. 7.
101.
The SPP Dossier 2010, pp. 153–154; the SPP Reply to the Objections 1995, p. 7.
102.
The SPP Reply to the Objections 1995, p. 7.
103.
The SPP Dossier 2010, p. 153.
104.
SPP Reply to the Objections 1995 p. 6; Penal Code Article 4, also the SPP stated similar provision of the UDHR, Article 7.
105.
The SPP Reply to the Objections 1995, pp. 3–7; the SPP Dossier 2010, pp. 147–152.
106.
The SPP stated that in France General Pite, Head of State of Vichy and his Prime Minister were charged, found guilty and penalized. In Greece after the fall of the ‘Colonels’ dictatorial regime’ in 1974, the President was penalized. On March 26, 1991, the former President Musa Triori and 32 officials of Mali were tried and found guilty of crimes. Similar trials of heads of state were carried out in Latin American countries (for instances, Argentina and Bolivia). The SPP also mentioned the decision of the Military Tribunals. See the SPP Dossier, 2010, pp. 157–58; the SPP Reply to the Objections 1995, pp. 13–14.
107.
For a summary of the inapplicability of ratione materiae for perpetrators of (serious) crimes, see Cassese 2012, pp. 853–855, Werle and Jessberger 2014, pp. 271–274.
108.
For a general discussion on immunity , see the International Court of Justice, Democratic Republic of Congo v Belgium, Arrest Warrant of 11 April 2000, Judgment, ICJ Reports 3 (2002) paras 21–22. The International Court of Justice, Djibouti v France, Certain Questions of Mutual Assistance in Criminal Matters, Judgment, ICJ Reports 2008; R v BowStreet Magistrate (ex parte Pinochet) 91999UKHL17, (2000) 1 AC147; International Law Commission , Preliminary report on immunity of State officials from foreign criminal jurisdiction, Special Rapporteur Roman Anatolevich Kolodkin,UNGAOR, 60th Sess, UN Doc A/CN.4/601 (29 May 2008); Akande 2004, pp. 407–433; Cassese 2013, pp. 318–322; Cassese 2012, pp. 853–875; Akande and Shah 2010, pp. 815–852; Van Alebeek 2008; Crook 2006; Werle and Jessberger 2014, pp. 270–277; Whomersley 1992 pp. 848–858; Tomonori 2001, pp. 261; Watts 1994-III, pp. 9–130; Jia 2012, pp. 1303–1321.
109.
The SPP Dossier 2010, pp. 158–166. The SPP v Mengistu et al Preliminary Objection Presented by the Defense Counsels 1995, the SPP Reply to the Objections 1995, pp. 21–22; Aneme 2009, pp. 10–11.
110.
Article 281 of the Penal Code (the Amharic version).
111.
The 2004 Criminal Code rectified the ambiguity in the Amharic version of the previous Penal Code and explicitly listed a political group among the protected groups. The relevant provision of the new Code reads as follows: ‘Whoever, in time of.war or in time of peace, with intent to destroy, in whole or in part, a nation, nationality, ethnical, racial, national, colour, religious or political group , organizes, orders or engages in….’ Article 269 of the Criminal Code .
112.
The SPP Dossier 2010, p. 163; the SPP Reply to the Objections 1995, p. 21.
113.
The SPP Dossier 2010, pp. 159–166.
114.
SPP Reply to the Objections 1995, pp. 21–22. For instance, the counsels for the 36th accused stated in his statement of objection against the charge that ‘members of the so-called political groups stated in the criminal charge such as E.P.R.P. [Ethiopian People Revolutionary Part] and E.D.U [Ethiopian Democratic Union] were executed simply for their individual and personal criminal activities. They were not executed for being members of one of these so-called political groups because there has not been any political group legally registered.’ The SPP Reply to the Objections 1995, p. 21.
115.
The SPP Reply to the Objections 1995; the SPP Dossier 2010, p. 161.
116.
The SPP Reply to the Objection 1995, p. 18.
117.
The SPP Dossier 2010, pp. 161–162.
118.
The SPP Reply to the Objections 1995, p. 21.
119.
The SPP Reply to the Objections 1995, p. 22.
120.
The SPP Reply to the Objections 1995, p. 22.
121.
The SPP Dossier 2010, p. 164; the SPP Reply to the Objections 1995, p. 22.
122.
Proclamation 1 of 1974; Proclamation 2 of 1974; Special Penal Code 8 of 1974; Proclamation 10 of 1974; Proclamation 110 of 1977.
123.
Article 5 of Proclamation 2 of 1974.
124.
Article 8(9) of Proclamation 110 of 1977.
125.
The law read that: ‘All existing laws that do not conflict with the provisions of this Proclamation and with all future laws, orders and regulations shall continue in force’ Article 10, Proclamation 1 of 1974. Another law enacted by the Derg stated that the Penal Code of 1957 and other criminal laws ‘shall supplement this Special Penal Code to the extent that they are consistent therewith.’ Article 3(2) Special Penal Code 8 of 1974. A similar provision was retained in the Revised Penal Code, which replaced the latter in 1981. See Article 2 of the Revised Special Penal Code 214 of 1981.
126.
The SPP Reply to the Objections 1995, p. 9.
127.
Ibid.
128.
Ibid.
129.
Ibid., pp. 9–10.
130.
Ibid.
131.
Ibid., p. 9.
132.
Ibid.
133.
Ibid., p. 24. Under the Penal Code , if charges were not instituted within the period prescribed in the law, any criminal action would be barred. With regard to charges brought after expiry of the ordinary period set by the law, the courts are obliged to dismiss the charges even in case the accused failed to invoke the statute of limitations as an objection to the charges laid against him/her. This is so because as the law quite bluntly put it, ‘limitation extinguishes the liability to punishment in respect to any of the participants. As soon as the limitation has elapsed neither a conviction nor penalties or measures may be pronounced.’ See Article 225 of the Penal Code and Articles 130 and 131 of Criminal Procedure Code .
134.
Article 226 of the Penal Code , based on the sentences prescribed for the crimes, provided for ordinary period of limitations within which the criminal action should be instituted. Accordingly, the limitations period for a criminal action shall be:
1. a.
  twenty five years for offences punishable with death or rigorous imprisonment for life;
2. b.
  twenty years for offences punishable with rigorous imprisonment exceeding ten years but not exceeding twenty five years;
3. c.
  fifteen years for offences punishable with rigours imprisonment exceeding five years but not exceeding ten years;
4. d.
  ten years for offences punishable with rigorous imprisonment punishable with not exceeding five years;
5. e.
  five years for offences punishable with simple imprisonment exceeding one year;
6. f.
  three years for offences punishable with simple imprisonment not exceeding one year, or only with fine.
The first charge (incitement to genocide ) and the third charge (unlawful detention) were each punishable with rigorous imprisonment not exceeding five years. If this ordinary period was to be applied as claimed by the defence counsels, the charge should have been brought within ten years from the time of commission of the alleged acts. The fourth charge (abuse of power ) was punishable with simple imprisonment, which means that the period of limitations within which to bring the charge was much less than for the other two.
135.
The SPP Reply to the Objections 1995; Aneme 2009, p. 8.
136.
Article 7(2) of Proclamation 22 of 1992.
137.
The SPP Reply to the Objections 1995, pp. 24–27; Aneme 2009, p. 15.
138.
Article 7(2) of Proclamation 22 of 1992, Article 28 of the FDRE Constitution of 1995.
139.
Graven 1965; the SPP Reply to the Objections 1995, p. 25.
140.
UN 1968. The Office quoted Article I which reads as follows: ‘No statutory limitation shall apply to the following crimes irrespective of the date of their commission . /b/ ..and the crime of genocide as defined in the 1948 convention on the prevention and punishment of the crime of genocide even if such acts don’t constitute a violation of the domestic law of the country in which they were committed.’
141.
Article 228(2) of the Penal Code .
142.
The SPP Reply to the Objections 1995, p. 25. The law stated unequivocally that ‘the limitation period shall be interrupted by any order, act, or decision for the purposes of summons, search, prosecution or investigation in relation to the offence or the offender. Upon each interruption, the whole period of limitation shall begin to run afresh. The interrupting act shall be absolute as to its effect; its effectual towards all the participants in the offence, whether known or unknown.’ Article 230 of the Penal Code .
143.
The SPP Reply to the Objections 1995, p. 26.
144.
Article 229 of the Penal Code ; the SPP Reply to the Objections 1995, p. 26.
145.
The SPP Reply to the Objections 1995, p. 26.
146.
The SPP Reply to the Objections 1995, p. 26.
147.
Article 231 of the Penal Code . The Code stated that: ‘Whatever the circumstances may be the prosecution and the criminal action shall be barred in all eases when a period equal to double the ordinary period of limitation provided by law (Article 226) has elapsed or, in cases where a special period applies (Article 227), when such a period has been exceeded by half.’
148.
The SPP v Mengistu et al Preliminary Objection Presented by the Defense Counsels 1995; the SPP Reply to the Objections , 1995 p. 28.
149.
The SPP Reply to the Objections 1995, p. 29.
150.
Aneme 2009, p. 13.
151.
Ibid.
152.
The SPP Reply to the Objections 1995, p. 29; Aneme 2009, pp. 13–14.
153.
Aneme 2009, p. 13.
154.
The SPP Reply to the Objections 1995, p. 29; the SPP v Mengistu et al Preliminary Objection Presented by the Defense Counsels 1995; Aneme 2009, p. 13.
155.
Aneme 2009, p. 13; the SPP Reply to the Objections 1995, pp. 29–30; the SPP v Mengistu et al Preliminary Objection Presented by the Defense Counsels 1995.
156.
The SPP Reply to the Objections 1995, p. 28.
157.
Ibid., Articles 111–112 of the Criminal Procedure Code of 1961.
158.
The SPP Reply to the Objections 1995, p. 28.
159.
Ibid., p. 25.
160.
Ibid., p. 22.
161.
Ibid., p. 23. See also Aneme 2009, p. 13.
162.
The SPP Reply to the Objections 1995, p. 23.
163.
Ibid., p. 23.
164.
Aneme 2009, p. 13.
165.
The SPP Reply to the Objections 1995, p. 24.
166.
The SPP stated that Article 281 of the Ethiopian Penal Code did not clearly designate conspiracy to commit genocide as a distinct crime, The SPP Reply to the Objections 1995, p. 24. Although this statement is correct, it was unnecessary because Article 286(b) of the Special Part of the Code criminalized conspiracy to commit core crimes . Secondly, the fact that Article 281 did not criminalize conspiracy to commit genocide as a distinct crime does not mean that conspiracy to commit genocide was not criminalized by other provision of the Code. As stated before, Article 286(b) of the Penal Code could have been used to show the criminality of conspiracy to commit genocide . It is true that under Article 37(1) of the Penal Code conspiracy to commit crimes was not recognized as an independent crime. As a matter of rule ‘conspiracy represents an intermediary stage between the internal phase preceding the commission of an offence and the beginning of execution of this offence.’ Graven 1965, p. 109. Thus mere collective agreement to commit crimes was not punishable. The collective agreement to commit a crime serves as aggravating circumstances only when the crime is attempted or committed. See also Article 37(2) provided exceptions by stating that where conspiracy to commit crimes was regarded as an independent crime, it is punishable as such. Thus mere collective agreement to commit crime was punishable, without a need for the aim to be attempted or committed, in those exceptional cases. One of the exceptions was conspiracy to commit genocide —Articles 37(2) and 286(b). If conspiracy to commit genocide was criminalized as an independent crime one would then pose why were the accused not charged with conspiracy to commit genocide ? The SPP stated that Article 37 was mentioned in conjunction with Article 281 to show how the accused conspired to commit genocide . If so, why would the SPP not have charged them with conspiracy to commit politicide as it was criminalized under Article 286(b)? Is it because the acts which the accused had conspired to commit had already materialized or been carried out? From the SPP ’s reasoning, it seems that conspiracy to commit genocide was not criminalized as a distinct crime. An evidentiary issue could not justify the exclusion of conspiracy from the charges , because the SPP tried to show that the accused had conspired to commit genocide . Graven argued that ‘in so far as, the commission of an offence contrary to Article 281, […], almost necessarily presupposes the commission of an offence contrary to Article 286, it is debatable as to whether both provisions apply concurrently.’ Graven 1965 p. 110. The author respectfully begs to disagree with Graven: Both under Ethiopian law and international instruments, the commission of genocide do not require conspiracy to commit genocide . In other words, collective agreement or preparation to commit genocide is not a necessary element for the commission of the crime of genocide . Of course, the presence of a collective agreement would make proof of special intent much easier. Thus, in the opinion of the author, conspiracy to commit genocide and commission of genocide are two distinct or independent offenses under Ethiopian law (Article 37(2)). In other cases where a collective agreement to commit a crime was recognized as an element of the crime or as an aggravating ground of the crime, conspiracy to commit could not be used as an independent offense when that same offence was attempted or committed. For genocide , conspiracy to commit was not encompassed as definitional element of the crime nor as an aggravating ground. Therefore, even when genocide is attempted or committed, conspiracy to commit same can be charged concurrently with commission of genocide . Thus, it is unclear why conspiracy to commit genocide was not included in the charges by the SPP . Maybe one could say it was included in the charge of preparation to commit genocide —Article 286(b). This is partly true but Article 286 criminalized both conspiracy to commit and preparation to commit genocide . Thus, both could have been used to charge the defendants. In some countries, when the crime that the conspirators agreed to commit had been committed or attempted, conspiracy does not apply. In other words, conspiracy covers only collective preparation to commit crimes. Nevertheless, in the Ethiopian case, it does not seem that conspiracy is limited to crimes that are not attempted nor committed. On conspiracy to commit international crimes, see generally Werle and Jessberger 2014, pp. 110–115; Okoth 2014.
167.
In support of its argument, the SPP also mentioned the Genocide Convention. It stated that: ‘Under the Convention for the Prevention and Punishment of the Crime of Genocide , we have shown that conspiracy to commit genocide is a crime whether committed by Heads of State or responsible government officials.’ The SPP Reply to the Objections 1995, p. 24.
168.
The SPP Reply to the Objections 1995, p. 24.
169.
The SPP Dossier 2010, pp. 167–168.
170.
The SPP Dossier 2010, p. 169; the SPP v Mengistu et al , First Criminal Division, FHC, Ruling, Criminal File 1/95.
171.
The SPP v Mengistu et al , First Criminal Division, FHC, Ruling, Criminal File 1/95
172.
Ibid.
173.
Ibid. See also Aneme 2009, p. 15.
174.
The SPP v Mengistu et al , First Criminal Division, FHC, Ruling, Criminal File 1/95. See also Aneme 2009, p. 16; Yeshanew 1995.
175.
This is a theory developed in the aftermath of WW II by the famous German legal theorist, Gustav Radbruch (1878–1949). He argued convincingly that a highly unjust rule loses its status as a valid legal norm. On legal validity, he wrote that ‘[p]ositivism is, moreover, in and of itself wholly incapable of establishing the validity of statutes. It claims to have proved the validity of a statute simply by showing that the statute had sufficient power behind it to prevail. But while power may indeed serve as a basis for the “must” of compulsion, it never serves as a basis for the “ought” of obligation or for legal validity.’ He suggested two parameters that would help to explicate the validity of law, namely: ‘(a) the positive law, secured by legislation and power, takes precedence even when its content is unjust and fails to benefit the people, unless the conflict between statute and justice reaches such an intolerable degree that the statute, as “flawed law,” must yield to justice; and (b) where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute is not merely “flawed law,” it lacks completely the very nature of law. For law, including positive law, cannot be otherwise defined than as a system and an institution whose very meaning is to serve justice.’ See Paulson and Paulson 2006, pp. 6–7 (a translation of Radbruch’s original work). The enactment does not in and of itself give the law the dignity of law. Hence, the accused could not successfully raise that piece of legislation as an objection or foolproof defense . In determining the criminal acts of the former East German border guards, the Federal Supreme Court of Germany made recourse to the Radbruch Formula. See Werle and Burghardt 2011, pp. 208–209. For more discussions on this and the general notion of the Radbruch Formula, see Kirchheimer 1995, pp. 350–374; Werle 1995, pp. 70–83; Geiger 1998, pp. 540–549; Herdegen 1995, pp. 591–606; Frank 2005, pp. 162–178; Paulson and Paulson 2006, pp. 13–15; Paulson 2006, pp. 17–40; Bix 2011, pp. 45–57; Paulson 1995, pp. 489–500; Bix 2006, pp. 139–149; Ambos 2013, pp. 293–315. Kirchheimer’s eloquent argument on validity of laws is worth quoting at length ‘not every piece of legislation enacted by a goverement in conformity with its own rules acquires, by the mere fact of enactement, the quality of binding the lower echelons. If its shows on its face the chararcter of inhumanity, as did the decree concerning the admistration of penal justice against Poles and Jews in the incorporated Eastern territories, then reference to its valid enactment cannot be invoked as defense by those who applied it. In those patently exceptional cases the value of legal certianity is not strong enough against the principle that intentional violation of minimum standards deprives an enactement of the claim to legal validity. Setting up machinery for the wanton destruction of human beings “selected on thebasis of national or racial characteristices in the form of a general command rather than by specific order does not give such enactments the diginty of law. It is the negation of the purpose of law, which even in form of the shoddiest enactment must still offer a password: the ordering of human relations.’ Kirchheimer 1995, p. 365.
176.
SPP v Mengistu et al , Federal High Court Ruling, Criminal File No. 1/1995, (2003), pp. 3 and 6.
177.
On the plea of the accused, the Code stated as follows: ‘(1) After the charge has been read out and explained to the accused, the presiding judge shall ask the accused whether he pleads guilty or not guilty. (2) Where there is more than one charge the presiding judge shall read out and explain each charge one by one and shall record the plea of the accused in respect of each charge separately. (3) The plea of the accused shall be recorded as nearly as possible in the words of the accused.’ Article 132 of the Criminal Procedure Code . Silence of the accused is tantamount to entering a plea of not guilty. The Article read that ‘[w]here the accused says nothing in answer to the charge or denies the charge, a plea of not guilty shall be entered. (2) Where the accused admits the charge with reservations, the court shall enter a plea of not guilty’ Article 133(2) of the Criminal Procedure Code . In the Red Terror trial, the accused denied the charges explicitly.
178.
Article 136(1) of the Criminal Procedure Code of 1961.
179.
The third prosecution witness, Semratu Bajeba, the SPP v Mengistu et al , Ruling, First Criminal Division of the Federal High Court , 21 January 2003, pp. 13–21.
180.
The seventh witness, Destaye Teku, the SPP v Mengistu et al , Ruling, First Criminal Division of the Federal High Court , 21 January 2003, pp. 23–24.
181.
The fifth prosecution witness, Aserat Degefe, the SPP v Mengistu et al , Ruling, First Criminal Division of the Federal High Court , 21 January 2003, p. 22.
182.
The sixth prosecution witness, Desta Mekonen, the SPP v Mengistu et al Ruling, First Criminal Division of the Federal High Court , 21 January 2003, pp. 22–23.
183.
The 482nd prosecution witness testified about the execution of Teferi Benti, the SPP v Mengistu et al Ruling, First Criminal Division of the Federal High Court , 21 January 2003.
184.
The 183rd prosecution witness, the SPP v Mengistu et al Ruling, First Criminal Division of the Federal High Court , 21 January 2003.
185.
For the rules on examination of witnesses, see Articles 133 through 140 of the Criminal Procedure Code of 1961.
186.
On the reasons for the protracted nature of the proceedings, see infra Sect. 6.2.4.
187.
The SPP v Mengistu et al , Federal High Court Ruling, Criminal File No. 1/1995, (2003), p. 7. The law stated that: ‘When the case for the prosecution is concluded, the court, if it finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, shall record an order of acquittal.’ Article 141 of the Criminal Procedure Code .
188.
The SPP v Mengistu et al , Federal High Court Ruling, Criminal File No. 1/1994, (2003), pp. 7 and 15. The Article states that ‘[w]here the court finds that a case against the accused has been made out and the witnesses for the injured party, if any, have been heard it shall call on the accused to enter upon his defence and shall inform him that he may make a statement in answer to the charge and may call witnesses in his defence.’ Article 142(1) of the Criminal Procedure Code . It is on the basis of this that the Court requested the accused to enter their defence. For the discussion on the first charge, see supra Sect. 5.3.2.1.
189.
The SPP v Mengistu et al , Federal High Court Ruling, Criminal File No. 1/94, (2003), pp. 7–16. For the discussion on the counts, see supra Sect. 5.3.2.1.
190.
For details on these counts, see supra Sect. 5.3.2.1.
191.
Counts 71, 187, 188, and 201, see Federal High Court , Mengistu et al , Ruling, 21 Jan 2003, p. 581.
192.
Counts 32, 97, 106, 107, 110, 112, 115, 118, 119, 121, 127, 135, 137, 138, 140–45, 178, 179, 181, 182, 193, 203, 204, 206, and 208, see Federal High Court , Mengistu et al , Ruling, 21 Jan 2003, p. 581.
193.
The counts that were discontinued due to insufficient evidences were: 17, 24, 35, 36, 41, 50, 51, 73, 76, 78, 79, 85, 92, 98, 99, 103, 104, 109, 111, 113, 114, 116, 122–24, 128, 130, 134, 136, 150, 162, 176, 177, 183–85, 189–192, 194–198, 202, 205, 207, and 209, see Federal High Court , Mengistu et al , Ruling, 21 Jan 2003, p. 581.
194.
The accused required to enter their defences to those counts: 1–16, 18–23, 26–31, 33, 34, 37–40, 42–49, 52–70, 72, 74, 75, 77, 80–96, 100–102, 105, 108, 117, 120, 125, 126, 129, 131–133, 129, 146–149, 151–161, 163–175, 180, 186, 199, and 200, Federal High Court , Mengistu et al , Ruling, 21 Jan 2003, pp. 581–582. See also SPP (appellant) v Mengistu (accused-respondents) et al, FSC, Criminal File No. 30181(2008), pp. 60–61.
195.
SPP v Mengistu et al , Federal High Court Ruling, Criminal File No. 1/94, (2003), pp. 16–17, Part Two: Decision of the Federal High Court ’ in the SPP ’s Indictment against Mengistu et al and Federal High Court ’s Decision’ Published by Federal Supreme Court (2007), pp. 10–11.
196.
22 accused, collectively, adduced documentary evidence that was divided into 12 parts, see SPP v Mengistu et al , Federal High Court Ruling, Criminal File No. 1/94, (2003), p. 81 and pp. 81–184.
197.
The SPP v Mengistu et al , Federal High Court Ruling, Criminal File No. 1/94, (2003), pp. 12–52. See also ‘Decision of the Federal High Court ’ in the SPP ’s Indictment against Mengistu et al and Federal High Court ’s Decision’ (2007), pp. 10–11. The defense witnesses of the accused were few compared to those tendered by the SPP . Some of the notable defense witnesses, collectively, adduced by the accused were: Professor Yusef Hassen (2nd common defense witness), Professor Mesfine Woldemariam (3rd Common defense witness), Dr Haile Wolde-Michael (11th common defense witness), Dr. Teferra Wolde (accused no. 12 common defense witness), Dr Hayilu Areya (accused no.16 common defense ), Yehonnes Heruy (accused no. 26 common defense witness), Dr Lapiso Getahun Gidielebo (accused no. 40 common defense witness), Dr Kassahun Berhanu (accused no. 50 common defense witness), Ketsela Mulat (accused no. 52 common defense witness), Tilahun Teshome (accused no. 60 common defense witness), Getachew Abera (accused no. 61 common defense witness), and Abera Degefa (accused no. 65 common defense witness), see the SPP v Mengistu et al , Federal High Court Ruling, Criminal File No. 1/94, (2003), pp. 17–81.
198.
Under Ethiopian law, the accused person can make a statement if he wishes to do so. In that case, ‘[t]he accused may not be cross-examined on his statement but the court may put questions to him for the purpose of clarifying any part of his statement.’ Article 142(3) of the Criminal Procedure Court of 1961. Accordingly, the second accused, Fikre Selassie-Wogaderes gave his statement in which he rejected the commission of genocide in Ethiopia , the SPP v Mengistu et al , Federal High Court Ruling, Criminal File No. 1/94, (2003), pp. 118–126. Likewise, the third accused, Fisseha Desta stated in his defense statement that in Ethiopia genocide was not committed but rather it was a civil war, the SPP v Mengistu et al , Federal High Court Ruling, Criminal File No. 1/94, (2003), pp. 137–144. The other accused persons who gave defence statements included accused nos., 5, 7, 10, 11, 15, 16, 17, 19, 20, 21, and 41 see the SPP v Mengistu et al , Federal High Court Ruling, Criminal File No. 1/94, (2003), pp. 216–217, 220–228, 239–242, 252–253, 262–264, 279–282, 319–323, 324–325, 396–399.
199.
The accused who called defense witnesses, individually, and adduced documentary evidence, included accused nos. 2, 3, 5, 7, 10, 11, 15, 16, 17, 19, 20, 21, and 41 the SPP v Mengistu et al , Federal High Court Ruling, Criminal File No. 1/94, (2003), pp. 126–137, 145–205, 228–229, 242–252, 253–262, 264–278, 283–319, 326–330, and 399–408. Accused number 3 and 16 called 35 and 32 defense witnesses, respectively. Melaku Tefera, accused number 20, did not individually call witnesses but submitted a written defense statement. On this and other accused persons who called witnesses, see the SPP v Mengistu et al , Federal High Court Ruling, Criminal File No. 1/94, (2003), pp. 126–459.
200.
For instance, Legesse Asfaw, accused no. 7, was a defence witness for accused nos. 2 and 3, the SPP v Mengistu et al , Federal High Court Ruling, Criminal File No. 1/94, (2003), p. 130 and p. 157. The accused no. 5 called eight defence witnesses; all of them were his co-accused (nos. 2, 3, 10, 11, 15, 16, 29 and 43), pp. 216–220. Accused no. 7 also called defence witnesses, which included some of his co-accused. He also tendered documentary evidence, the SPP v Mengistu et al , Federal High Court Ruling, Criminal File No. 1/94, (2003), pp. 228–229.
201.
The SPP v Mengistu et al , Federal High Court Ruling, Criminal File No. 1/94, (2003), pp. 18–19. See also Part Two: Decision of the Federal High Court ’ in the SPO’s Indictment against Mengistu et al and Federal High Court ’s Decision’ Published by Federal Supreme Court (2007), pp. 10–11.
202.
In total 55 accused were convicted in the Mengistu et al case. Presiding, Judge Medine Kiros and Judge Selmon Emeru were the ones who handed down the conviction judgment by majority decision.
203.
Decision of the Federal High Court on the SPP ’s Indictment against Mengistu et al and Federal High Court ’s Decision’ Published by Federal Supreme Court (2007), p. 412 and pp. 460–461.
204.
The Mengistu et al case, 21 January (2006), FHC, pp. 742–744.
205.
Federal High Court , the Mengistu et al case Judgment, Dissenting Opinion of Judge Nuru, (2006), pp. 745–754.
206.
Ibid., p. 754.
207.
The Mengistu et al case, Judgment, FHC Dissenting Opinion of Judge Nuru, (2006), p. 747 (translation by Aneme 2009, p. 223).
208.
Proclamation 1 of 1974, Proclamation 110 of 1977, Proclamation 129 of 1977. See the Mengistu et al case Judgment, FHC, Dissenting Opinion of Judge Nuru, (2006), pp. 746–748.
209.
Article 10 of Proclamation 1 of 1974.
210.
What logically follows then is that preparation and incitement to commit politicide were also repealed. Since the main crime—commission of politicide was decriminalized it was not logical for the accessory acts to be considered as crimes. The Mengistu et al case Judgment, FHC, Dissenting Opinion of Judge Nuru, (2006), p. 750.
211.
The Mengistu et al case Judgment, FHC, Dissenting Opinion of Judge Nuru, (2006). pp. 748–49.
212.
It is also important to note that nowhere in his dissenting opinion did Judge Nuru Said gainsaid or disagreed with the commission of the acts alleged in the counts contained in the charges . In fact, he stated clearly that the commission of the alleged acts by the accused were proved beyond a reasonable doubt; see the Mengistu et al case Judgement, FHC, Dissenting Opinion of Judge Nuru, (2006), pp. 750–51.
213.
The Mengistu et al case Judgment, FHC, Dissenting Opinion of Judge Nuru, (2006), pp. 751–53.
214.
Ibid., p. 751.
215.
Accordingly, Judge Nuru stated that the first 12 accused, including Mengistu, should have been convicted of aggravated homicide and the causing of serious bodily injury. Whereas the other accused except accused no. 41 as far as the first 16 counts contained in the second charge is concerned should have been convicted of the aggravated homicide . The Mengistu et al case Judgment, FHC, Dissenting Opinion of Judge Nuru, (2006), pp. 752–53.
216.
The point to ponder at this stage is: what if the Derg laws expressly repealed the Penal Code and thereby legalized the killings, torture and arbitrary arrest of political opponents? What would have been the argument of Judge Nuru? Do we accept carte blanche legislation of laws by dictatorial regimes or do we challenge the validity of such laws? Obviously, as reasoned in the East German Border Guards case, such laws, which legitimized repression, could not have inhibited the prosecution of Derg officials, at least theoretically. Such laws would have been considered as unjust or false laws, which had had no effect. See Berlin State Court Trial of Border Guards Docket No. 523, 2Js 48/90 (9/91), Kritz 1995, pp. 575–586.
217.
In the opinion of the author although the accused were authorized by the Derg laws to carry out some measures against members of the opposition, it is hardly possible to conceive that they were authorized to carry out the arbitrary killings, torture and detentions against those who would (not) have created (any) threat. Thus, even based on the Derg laws, it could be argued that the accused were never authorized to carry out arbitrary killings. However, even had the Derg law expressly authorized the accused to carry out those egregious violations that would not have exempted them from criminal liability.
218.
For a detailed analysis on this, see infra Sect. 6.5.
219.
The punishment that the law provided for aggravated homicide was either life imprisonment or death, whereas genocide was punishable with rigorous imprisonment from five years to life, or in cases of exceptional gravity, with death. Cf. Articles 522 and 281 of the Penal Code . One could argue that crimes, such as genocide are usually if not always are grave and heinous. Other things ceteris paribus (having regard to mitigating and aggravating circumstances), a case where genocidaires receive lesser punishment than homiciders is unforeseeable. Because of its international character genocide is the crime of all ordinary crimes, if not a crime of international crimes.
220.
Infra Sect. 6.2.5. See also Kissi 2006, pp. 97–120.
221.
In other countries, denying the commission of genocide after judicial confirmation of its commission is a crime. For instance, denial of the Holocaust is a crime in many countries. See Tomuschat 2009, pp. 523–526. Also, denial of the Rwandan genocide is a crime under Rwandan law. Similarly, denial of Armenian genocide is a crime in some countries, like France, whereas accepting it as genocide is a crime in Turkey. However, under Ethiopian law denial of the commission of genocide , even after judicial confirmation of the crime, was, and still is, not a crime. Therefore, arguing that Derg officials should not have been convicted for politicide is not a punishable crime. Criminalizing denial of the commission of genocide is, in the opinion of the author, limiting the space of academic freedom and freedom of expression. Logic should be allowed to prevail.
222.
Article 149(3–5) of the Criminal Procedure Code of 1961. Where the parties want to present evidence or arguments with regard to the punishment to be meted out, the court has to give them reasonable time to do so. In such instances, the conviction and sentence might not be handed down on the same day.
223.
The Special Part of the Code, which dealt with the particular crimes, prescribed the range of punishment for each offence; see supra Sect. 3.6; and Articles 281, 282, 522, 414 and 416 of the Penal Code . The law also provided a guideline for calculation of sentence; see Articles 85–87 of the Penal Code . The aggravating and mitigating circumstance were also enshrined in Articles 79–84 of the Penal Code . For guidelines on how to assess the sentences to be imposed in case of aggravating and mitigating circumstances, see Articles 183–193 of the Penal Code .
224.
Article 149 of the Criminal Procedure Code of 1961.
225.
The Mengistu et al case, Sentencing Judgment, FHC (2007), pp. 758–761.
226.
These were the first 12 accused, and accused nos. 15, 16, 17, 19, 18, 20, 21, 22, 25, 26, 30, 48, 49, 50, 51, 53, 57 60 and 72 who had also been found guilty in other Red Terror cases. The Mengistu et al case, Sentencing Judgment, FHC (2007), pp. 758–759.
227.
These were accused nos. 28, 31, 32, 34, 35, 39, 40, 42, 43, 47, 52, 54, 55, 56, 58, 59, 60, 64, 65, 66, 67, 68, 70, 105 and 106. The Mengistu et al case, Sentencing Judgment, FHC (2007), p. 759.
228.
The Mengistu et al case, Sentencing Judgment, FHC (2007), pp. 763–766.
229.
There is no substantial difference inter se the old and new Codes. With regard to the penalties for the crimes of which the perpetrators were found guilty, the new Code is favourable to the convicted persons. For instance, under the old Code, genocide was punishable with rigorous imprisonment from five years to life (emphasis added); or in cases of exceptional gravity, with death; whereas under the new law it is punishable with rigorous imprisonment from five to 25 years; or in more serious cases with life imprisonment or death. As regards to aggravated homicide , both Codes stated that the crime is punishable with rigorous imprisonment for life, or death. Cf. Article 522 of the Penal Code and Article 539 of the Criminal Code . As enshrined under the new Code: ‘Where the criminal is tried for an earlier crime after the coming into force of this Code, its provisions shall apply if they are more favourable to him than those in force at the time of the commission of the crime.’ See Article 6 FDRE Criminal Code . Hence, the application of the sentencing provisions of the Criminal Code was to enable the convicted persons to reap the benefits introduced by the new Code. In other words, the application of the new Code did not fly in the face of the prohibition of ex post facto application of law.
230.
Whenever the Court resorts to the new Criminal Code , it is required that ‘the Court shall decide in each case whether, having regard to all the relevant provisions, the new law is in fact more favourable.’ See Article 6 FDRE Criminal Code . This has not been done by the Federal High Court , nor by the Federal Supreme Court in the Red Terror cases. However, there is no doubt that the new Code is favourable to the convicted persons insofar punishment is concerned. The Penal Code provided for unconstitutional forms of punishments, such as flogging. It is perhaps because of this advantage that the accused have never raised an objection when the Court resorted to the new Criminal Code at the sentencing stage. It would have been different had the Court applied the new Code to the crimes as such.
231.
The Mengistu et al case, Sentencing Judgment, FHC (2007), pp. 766–775.
232.
Article 117 of the Criminal Code of 2004.
233.
The Mengistu et al case, Sentencing Judgment, FHC (2007), pp. 767–770.
234.
The Mengistu et al case, Sentencing Judgment, FHC (2007), pp. 767–773.
235.
Ibid.
236.
Ibid., pp. 773–776; and see Annex Six.
237.
Federal High Court , the Mengistu et al case, Sentencing Judgment, Dissention Opinion of Judge Medine (2007), pp. 777–791.
238.
The Mengistu et al case, Sentencing Judgment, FHC (2007), pp. 774–76. See Annex Six for the list of convicts who were sentenced to life imprisonment . The FHC First Criminal Division, when delivering the sentencing decision in the Mengistu et al case, took note of the fact that the Sixth Criminal Division of the same Court found guilty and sentenced five of the convicted persons in the instant case to death, namely, Convict Number 2, Melaku Tefera (FHC, Criminal File 013112/89), Convict Number 50, Eshetu Alemu (FHC Criminal File 921/89), Convict Number 51, Getachew Tekeba (FHC, Criminal File 914/89), Convict Number 60, Basha Kebede (FHC, Criminal File 960/89), and Convict Number 72, Kebede Keberet (FHC Criminal File 917/89). It stated that the life imprisonment would be enforced only when the death sentences imposed by the other Division would not get approval from the relevant authority. The Mengistu et al case, Sentencing Judgment, FHC (2007), pp. 759, 771–772, and 776.
239.
These were Wubshet Dessie and Sileshi Mengesha, accused nos. 12 and 19, respectively, see the Mengistu et al case, Sentencing Judgment, FHC (2007), pp. 774–775.
240.
These were Tegegn-Work Tesfa Hailu, Demsew Kassaye Mengesha, Kebede Abegaz Adem, Tamerat Feeye Bedo, and Manmeketot Wendemetegegn Belayeneh, accused nos. 31, 32, 35, 47 and 65 respectively. See the Mengistu et al case, Sentencing Judgment, FHC (2007), pp. 775–76.
241.
The Mengistu et al case, Sentencing Judgment, FHC, Order (2007), pp. 790–791.
242.
Ibid.
243.
The Mengistu et al case, Sentencing Judgment, FHC, Dissenting Opinion of Judge Medine (2007), pp. 777–790.
244.
Article 82(1) of the Criminal Code of 2004.
245.
Articles 88(1)(a), 88(2) and 48(2) of the Criminal Code of 2004.
246.
The Mengistu et al case, Sentencing Judgement, FHC, Dissenting Opinion of Judge Medine (2007), pp. 780–781.
247.
Ibid., p. 783.
248.
The Mengistu et al case, Sentencing Judgment, FHC, Dissenting Opinion of Judge Medine (2007), pp. 784–787.
249.
These were accused nos. 1, 2, 3, 5, 6, 7, 8, 9, and 11. The Mengistu et al case, Sentencing Judgment, FHC, Dissenting Opinion of Judge Medine (2007), p. 788. For a list of the accused in the Mengistu et al case, see Annex Five.
250.
These included accused nos. 10, 12, 15, 17, 18, 20–22, 25, 26, 28, 29, 34, 40, 42, 43, 48–61, 64, 66, 68 70, 72, 105, and 106. The Mengistu et al case, Sentencing Judgment, FHC, Dissenting Opinion of Judge Medine (2007), pp. 789–790. For a list of the accused in the Mengistu et al case, see Annex Five.
251.
These were the accused number: 16, 19, 31, 32, 35, 47 and 65. The Mengistu et al case, Sentencing Judgment, FHC, Dissenting Opinion of Judge Medine (2007), p. 789.
252.
Article 21 of the FDRE Constitution; Article 9 of Proclamation 25 of 1996, Article 181 et seq. of the Criminal Procedure Code . The law stated that:
1. 1.
  ‘A convicted person may appeal against his conviction and sentence; Provided that no appeal may be lodged by a convicted person who has pleaded guilty and has been convicted on such plea except as to the extent or the legality of the sentence.
2. 2.
  The public prosecutor may appeal against a judgment of acquittal, discharge or on the ground of inadequacy of sentence. […]’ see Article 185 of the Criminal Procedure Code . It is noteworthy to mention that interlocutory appeal is not plausible. The relevant part of the law reads that: ‘No interlocutory appeal shall lie from a decision of the court:
  1. a.
    granting or refusing an adjournment under Article 94; or
  2. b.
    regarding an objection under Article 131; or
  3. c.
    regarding the admissibility or non-admissibility of evidence under Article 146,
but any such decision may form the subject of a ground of appeal where an appeal is lodged against conviction, discharge or acquittal.’ See Article 184 of the Criminal Procedure Code .
253.
The SPP (Appellant) v Mengistu (Respondents) et al, Judgment, FSC (2008), p. 2. The law stated that the party, aggrieved by the decision of the court, should as a matter of principle file notice of appeal and a memorandum of appeal within the period prescribed by law. See Article 187 of the Criminal Procedure Code . After the expiry of the period for appeal , the party can apply for leave to appeal out of time to the Appeal Court; see Article 191 of the Penal Code . In the appeal at bar, the parties lodged their respective appeal within the period prescribed by the law; hence, leave to appeal out of time was not relevant. But in other Red Terror cases, such as, in the Federal Supreme Court , Alemeshet Haile Aferu (Accused-Applicant) v SPO (Respondent) Criminal File 10843/2003, the accused applied for leave to appeal out of time. In this case, the appellant lodged an application for leave to appeal out of time against the conviction and sentencing judgment handed down by the Federal High Court , in SPP v Abebe Melaku, Criminal File No. 227/2001. The appellant was accused no. 35 in the trial case. He was found guilty and sentenced to five years’ imprisonment. The period for appeal had expired, by two days. In his application, he alleged that the period for appeal had expired due to the registrar’s delay in putting the necessary signature timeously on the notice of application (after receiving the notice of appeal , the registrar kept it for four days). Hence, the period expired due to a fault imputable to the registrar of the FHC. The SPP responded that the period had elapsed but, that if the FSC grants him leave to appeal out of time it would not object. The FSC decided that the argument of the appellant was not convincing. In other words, it was not satisfied that the delay was not occasioned by the default of the applicant. Therefore, the FSC denied him leave to appeal out of time. See Alemeshet Haile Aferu (Applicant) v SPO (Respondent), FSC Criminal File 10843/2003, pp. 2–3. In the same vein, the FSC, denied an application for the leave to appeal , after expiry of the period against the decision of the Oromia Regional State Supreme Court, see the Federal Supreme Court , Telomos Moniye (Applicant) v the SPP (Respondent) , Decision on a Leave to Appeal out of time, Criminal Appeal File No. 8642/2003.
254.
The Federal Supreme Court , SPP (appellant) v Mengistu et al (Accused-Respondents), Criminal File No. 30181 (2008), p. 3.
255.
SPP (appellant) v Mengistu (respondents) et al, (2008), pp. 3–6.
256.
Article 192 of the Criminal Procedure Code . See the SPP (appellant) v Mengistu (Accused-Respondents) et al, the FSC, (2008), p. 6. The law require the Appellate Court to fix the day for the appeal hearing upon receiving the memorandum of appeal . ‘The President of the Appellate Court shall fix a day on which the appeal will be heard and the parties to the appeal shall be notified. The appellant shall open the appeal , the respondent shall reply and the appellant shall be entitled to reply.’ See Article 191 of the Criminal Procedure Code .
257.
These were: Colonel Mengistu Haile Mariam, Captain Fikre Selassie Wogderes, Colonel Fisseha Desta, Colonel Kasahun Tafese (died), Major Berhanu Bayeh, Captain Legesse Asfaw, Colonel Tesfaye Gebrekidan, Major Hadis Tedla, Lieutenant Colonel Endale Tessema, Captain Gessese Wolde-Kidan, Major Kassaye Aragaw, Colonel Debela Dinsa, Captain Begashaw Atalay, Colonel Nadew Zekarias, Lieutenant Petros Gebre, Second Lieutenant Aragaw Yimer, Lieutenant Aklilu Belayneh,Major Dejene Wondimagegnehu, and Lieutenant Desalegn Belay.
258.
Accused no. 12 in the Mengistu et al case and respondent no. 11 in the SPP (appellant) v Mengistu (respondents) et al, the FSC, (2008).
259.
Accused no. 19 in the Mengistu et al case, and in the appeal , he was respondent no. 15.
260.
The SPP (appellant) v Mengistu (respondents) et al, the FSC (2008), pp. 1 and 7. When the respondent is not present during the appeal hearing, the proceeding continues in absentia. See Article 193(2) of the Criminal Procedure Code .
261.
The SPP (appellant) v Mengistu (respondents) et al, the FSC, (2008), p. 6.
262.
In the memorandum of appeal , the appellant ‘[…] shall set forth concisely and under distinct heads the grounds of objection to the judgment appealed against without any arguments and such grounds shall be numbered consecutively. The memorandum shall be accompanied by a copy of the judgment appealed against. The memorandum of appeal shall state the nature of the relief that is sought.’ See Article 189(1) of the Criminal Procedure Code . The law did not outline the specific ground/s for admissibility of an appeal .
263.
The SPP (appellant) v Mengistu (respondents) et al, the FSC, (2008), p. 7.
264.
Ibid.
265.
Ibid., p. 8.
266.
It is worth mentioning that the SPP did not raise the defenseless nature of most of the victims as a ground for aggravation of the sentence. Despite the fact that this was explicitly recognized as an aggravating circumstance under the law, the SPP did not invoke it. See Article 81(1) of the Penal Code .
267.
The SPP (appellant) v Mengistu (respondents) et al, the FSC, (2008), p. 8.
268.
According to the SPP , some of the accused were convicted and sentenced by the Federal High Court , while the sentencing of others was postponed so that it would be decided in the Mengistu et al case. However, the High Court did not take into account those prior conviction decisions when deciding on sentence in the latter case.
269.
The SPP (appellant) v Mengistu (respondents) et al, the FSC, (2008), p. 8.
270.
The SPP (appellant) v Mengistu (respondents) et al, the FSC, (2008), p. 8.
271.
Ibid., p. 9.
272.
Ibid.
273.
Ibid.
274.
Ibid.
275.
Ibid., p. 15.
276.
Ibid., p. 10.
277.
Ibid., p. 10.
278.
Ibid., p. 10.
279.
Ibid., p. 10.
280.
Ibid., p. 11.
281.
Ibid.
282.
Ibid.
283.
Ibid.
284.
Ibid.
285.
Ibid., p. 13.
286.
Ibid., pp. 13–14.
287.
Ibid., p. 14.
288.
Ibid.
289.
Ibid.
290.
The law which outlined the power of the appellate court reads:
‘Article 195. Powers of court of appeal .
1. (1)
  At the hearing of an appeal the court of appeal shall dismiss the appeal where there is no sufficient ground for interference.
2. (2)
  Where it considers that there is sufficient ground for interference, the court of appeal may:
  1. (a)
    on an appeal from an order of acquittal or discharge reverse such order and direct that the accused be retried by a Court of competent jurisdiction or; find him guilty and sentence him according to law; or
  2. (b)
    on an appeal from conviction and sentence:
  3. (i)
    reverse the finding and sentence and acquit the accused; or
  4. (ii)
    with or without altering the finding, maintain, increase or reduce the sentence;
  5. (c)
    on an appeal from conviction only reverse the finding and sentence and acquit the accused;
  6. (d)
    on an appeal from sentence only maintain, increase or reduce the sentence.
3. (3)
  Where the court of appeal confirms the conviction but alters the sentence or vice versa a second appeal shall lie only in respect of the conviction or sentence which has been altered.
291.
The SPP (appellant) v Mengistu (respondents) et al, the Federal Supreme Court , Criminal File No. 30181(2008), pp. 16–19.
292.
The SPP v Mengistu et al , the FSC, Criminal File No. 30181(2008), p. 22.
293.
The SPP v Mengistu et al , the FSC, Criminal File No. 30181(2008), p. 24.
294.
The SPP v Mengistu et al , the FSC, Criminal File No. 30181(2008), p. 25.
295.
The SPP v Mengistu et al , the FSC, Criminal File No. 30181(2008), pp. 16–60.
296.
The SPP v Mengistu et al, the FSC, Criminal File No. 30181(2008), p. 26.
297.
The SPP v Mengistu et al , the FSC, Criminal File No. 30181(2008), p. 26.
298.
The SPP v Mengistu et al , the FSC, Criminal File No. 30181(2008), p. 66.
299.
In doing so, the Supreme Court made reference to the new Criminal Code . The Court stated that the new Criminal Code in much clearer terms included political groups as one of the groups protected against genocidal acts. See the SPP v Mengistu et al , the FSC, Criminal File No. 30181(2008), pp. 68–71.
300.
The SPP v Mengistu et al , the FSC, Criminal File No. 30181(2008), p. 69.
301.
The SPP v Mengistu et al , the FSC, Criminal File No. 30181(2008), p. 70.
302.
The SPP v Mengistu et al , the FSC, Criminal File No. 30181(2008), pp. 70–71.
303.
The SPP v Mengistu et al , the FSC, Criminal File No. 30181(2008), p. 25, and pp. 71–73. Accordingly, the Court outlined that for six counts of killing that resulted in the death of 74 individuals, the appellants should have been convicted on the alternative charge, aggravated homicide , instead of genocide . Nevertheless, the Court refrained from altering the High Court’s conviction judgment. The counts were the following: count one (killing of Haile Selassie’s officials), count two (killing of Tadesse Biru and five others); count five (killing of Emperor Hailse Selasie); Count 10 (killing of Atenafu Abate); Count 38 (killing of Teferi Benti and seven others); and count 91 (killing of Abune Teflosiwos Wolde-Mariam). These counts were contained in the second charges . In the case of Abune Teflosiwos, the Court stated that the reason for his killing was not proven beyond a reasonable doubt; hence, special intent is lacking. In other cases, the Court stated that the special intent is lacking since most of the killings were carried out for non-political purposes. The Court stated, in explaining why it should leave the High Court’s conviction judgment unchanged with regard to these counts that the change would result in aggravation of penalty for the appellants. In the interest of fairness, the Court refrained from altering the counts from genocide to aggravated homicide . This is simply not correct for two reasons: (a) the Court could have rectified the conviction and left the sentencing untouched; and (b) even if the alteration might have resulted in aggravating the penalty , at the end it would be inconsequential because the Court went to impose the maximum penalty .
304.
The SPP (appellant) v Mengistu (respondents) et al, the FSC, Criminal File No. 30181(2008), pp. 73–74.
305.
The SPP (appellant) v Mengistu (respondents) et al, the FSC, Criminal File No. 30181(2008), pp. 75–76.
306.
For a discussion of the conditions for imposition of the death penalty , see supra Sect. 5.3.6.1.
307.
‘Death sentence shall not be carried out unless confirmed by the Head of State. It shall not be executed before ascertainment of its non-remission or non-commutation by pardon or amnesty .’ see Article 117(2) of the Criminal Code of 2004. See also Article 119 of the Criminal Procedure Code of 1961; Article 2(1) Procedure of Granting and Executing Pardon Proclamation 840 of 2014; and the Constitution explicitly confers the power to grant a pardon on the President. The law reads: ‘He [the President] shall, in accordance with conditions and procedures established by law, grant pardon .’ Article 71(7) of the FDRE Constitution. See Article 5(1) the Procedure of Granting and Executing Pardon Proclamation 840 of 2014, and Article 10 the Procedure of Pardon Proclamation 395 of 2004. The latter was the law in force at the time of the pardoning of the Derg officials. It is repealed by the Procedure of Granting and Executing Pardon Proclamation 840 of 2014.
308.
Article 229 of the Criminal Code . Cf. with Article 239(1) of the Penal Code which reads as follows: ‘A sentence may be remitted in whole or in part or commuted into a penalty of a lesser nature or gravity by an act of pardon of the sovereign power.’
309.
Article 28(1) of the FDRE Constitution.
310.
The second paragraph of the provision states that: ‘In the case of persons convicted of any crime stated in sub-Article 1 of this Article and sentenced with the death penalty , the Head of State may, without prejudice to the provisions hereinabove, commute the punishment to life imprisonment .’ See Article 28(2) of the FDRE Constitution.
311.
Proclamation 395 of 2004.
312.
The law established the Board of Pardon that has the power to examine and evaluate pardon petition and thereafter make recommendations thereon to the President, see Articles 3 and 15. For details on members and powers of the Board, see Articles 4–9 Proclamation 395 of 2004. Cf. Articles 6 through 13 Proclamation 840 of 2014.
313.
The law stated that ‘[a]ny person who is convicted and sentenced by a court may, unless the granting of pardon is prohibited by law, apply for pardon in person or through his spouse, close relatives, representative or lawyer’ Article 12(1) Proclamation 395 of 2004. For the content of the petition, see Article 13 Proclamation 395 of 2004. Cf. Article 15–16 Proclamation 840 of 2014.
314.
Article 14 Proclamation 395 of 2004. Cf. Article 17 Proclamation 840 of 2014.
315.
The applicants requested complete release.
316.
Pardon Board 11th and 12th Ordinary Meetings Minute, 2011; and
Letter, the FDRE Ministry of Justice Pardon Board to the FDRE President Office, No. 170-5-83/2011, 18 May 2011, signed by the then Minister of Justice, Assefa Kesito. Members of the Pardon Board who were present during the meeting were Berhanu Hailu (chairperson), Mersa Reda, Wondimu Hailu, Pastor Daniel Mengistu Tufa, and Mulugeta Ayalew (secretary). Dr. Yared Asemra was not present.
317.
Red Terror Martyrs Museum, The Association’s declaration of standing-point on the peace and reconciliation by the Derg Officials, available at http://rtmmm.org/news.html. Accessed 12 June 2016.
318.
The law stated that: ‘The President may grant or deny pardons based on the recommendations of the Board or on his own appreciation of the facts’. […] Article 10(1) Proclamation 395 of 2004.
319.
Decision Given by the Office of the Presidency, Letter No. 609/2011), on 28 May 2011. In the event held at the National Palace, the President made an announcement on National Television that all the former high-ranking Derg officials were pardoned, meaning that the death sentences had been lifted and reduced to life imprisonment , see ETV News Ethiopia commutes death sentences for 23 Derg -officials available at http://www.ethiotube.net/video/14212/ (in Amharic). Accessed 20 June 2016. For news coverage on the commuting of the officials, see Voice of America 2011, Ethiopia Commutes Death Sentences for Former Officials Accused of Genocide , available at http://www.voanews.com/content/ethiopia-commutes-death-sentences-for-mengistu-officials-22960723/158216.html. Accessed 20 June 2016. Against Death Penalty in the World, Ethiopia Pardon 23 Top Derg Officials, available at http://www.handsoffcain.info/archivio_news/201106.php?iddocumento=15307341&mover=2. Accessed 20 August 2014.
320.
ETV-News, Ethiopia commutes death sentences for 23 Derg officials available at http://www.ethiotube.net/video/14212/ (in Amharic). Accessed 20 June 2016. The late Patriarch of the Ethiopian Orthodox Church, Abune Paulos, stated at the event that ‘there is no half forgiveness. In their pardon request, the prisoners urged the government to release them completely from prison so that they will spend the remaining few years of their lifetime with their children. I hope and believe that our government will fully release them from prison.’ Similarly, Sheikh Elias Redman, leader of the Muslim community, speaking at the event, asked the government to consider freeing the officials. The President replied to the request by stating that the relevant authorities would review it in accordance with the law.
321.
The former Justice Minister, Berhanu Hailu, stated that the commuting of the death sentences of 23 former Derg officials to life imprisonment is a constitutional act, ETV News, ‘Ethiopian Justice Minister Ato Birhan Hailu discusses the pardoning of 23 former Derg officials’ (in Amharic) at http://www.ethiotube.net/video/14224/ETV-News--Ethiopian-Justice-Department-says-reducing-the-Derg-officials-sentence-to-life-in-prison-is-constitutional. Accessed 25 August 2015.
322.
The relevant provision reads: ‘Where a prisoner has served two-thirds of a sentence of imprisonment or twenty years in case of life imprisonment , the Court may, on the recommendation of the management of the institution or on the petition of the criminal, order conditional release:
1. a.
  if, during the requisite period of performance of the penalty or the measure entailing loss of liberty, the criminal, by his work and conduct, gave tangible proof of his improvement; and
2. b.
  if he has repaired, as far as he could reasonably be expected to do, the damage found by the Court or agreed with the aggrieved party; and
3. c.
  if the character and behaviour of the criminal warrant the assumption that he will be of good conduct when released and that the measure will be effective. […]’ Article 202 of the Criminal Code . Cf. Articles 206–212 of the Penal Code .
323.
Cf. Article 110 of the Rome Statute . Accordingly, for reduction of sentence in the case of life imprisonment the convict has to serve 25 years. Under international instruments early release is also permissible. It is on the basis of this provision that the sentence of Germain Katanga was reduced in November 2015. See ICC, The Prosecutor v. Germain Katanga Decision Review Concerning Reduction Of Sentence, Appeal Chamber, ICC-01/04/01/07 13 November 2015. In the ICTR as well, some defendants have benefited from the regime of early release. ICTR, Prosecutor v. Bagaragaza, Decision on Early Release of Micheal Bagaragaza ICTR-05-86, President, 24 October 2014. However, early release is not an entitlement. The ICTR President denied early release to Rutaganira. See ICTR, Prosecutor v, Rutaganira, Decision on Request for Early Release, ICTR-95-1C, President 2 June 2006; and ICTR, Prosecutor v, Rutaganira, Decision on the Motion for Reconsideration of Denial of Request of Early Release, ICTR-95-1C, President, 28 February 2008. For general discussions of the doctrine of early release see Choi 2014, pp. 1784–1828; and Elberling 2012, pp. 118–137.
324.
It is not clear whether there has been a subsequent release of the remaining Derg officials who have been serving their prison terms.

References

Akande D (2004) International Law Immunities and the International Criminal Court. The American Journal of International Law 98.3: 407–433.
Article Google Scholar
Akande D, Shah S (2010) Immunities of State Officials, International Crimes, and Foreign Domestic Courts. European Journal of International Law Vol. 21 No. 4: 815–852.
Article Google Scholar
Ambos K (2013) Punishment without a Sovereign? The Ius Puniendi Issue of International Criminal Law: A First Contribution towards a Consistent Theory of International Criminal Law. Oxford Journal of Legal Studies, Vol. 33, No. 2: 293–315.
Article Google Scholar
Aneme GA (2009) The Anatomy of Special Prosecutor v. Colonel Mengistu Hailemariam et al. (1994–2008). International Journal of Ethiopian Studies, Vol. 4, No. 1/2: 1–53.
Google Scholar
BBC News (2006) Mengistu Found guilty. http://news.bbc.co.uk/2/hi/africa/6171429.stm. Accessed 20 September 2016.
Behrens J (1998) Investigation, Trial and Appeal in the International Criminal Court Statute. European Journal of Crime, Criminal Law and Criminal Justice, Vol. 6/4: 113–125.
Article Google Scholar
Bix BH (2006) Robert Alexy’s Radbruch Formula, and the Nature of Legal Theory. Rechtstheorie Vol. 37: 139–149.
Google Scholar
Bix BH (2011) Radbruch’s Formula and Conceptual Analysis. American Journal of Jurisprudence: Vol. 56: Iss. 1, Article 3: 45–57.
Article Google Scholar
Brown DJ (1999) The International Criminal Court and Trial in Absentia. Brook. J. Int’l L.24: 763–780.
Google Scholar
Calvo-Goller KN (2009) The Trial Proceedings of the International Criminal Court: ICTY and ICTR Precedents. Martinus Nijhoff Publisher, Boston.
Google Scholar
Cassese A (2012) When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case. European Journal of International Law Vol 13, No. 4: 853–875.
Article Google Scholar
Cassese A (2013) International Criminal Law 3 ed. Oxford University Press, Oxford.
Google Scholar
CBS New (2015) Nazi “accountant of Auschwitz” heads to trial in Germany. http://www.cbsnews.com/news/oskar-groening-nazi-guard-at-auschwitz-death-camp-heads-to-trial-in-germany. Accessed 25 April 2016.
Choi JH (2014) Early Release in International Criminal Law. The Yale Law Journal 123: 1784–1828.
Google Scholar
Crook JK (2006) Contemporary practice of the United States relating to international law: State jurisdiction and immunities: US Brief suggests Pope’s immunity as a head of state. American Journal of International Law 100: 219–230.
Google Scholar
Cryer R, Friman H, Robinson D et al (2010) An Introduction to International Criminal Law and Procedure 2nd edn. Cambridge University Press, New York.
Google Scholar
Elberling B (2012) Defendants in International Criminal Proceedings Between Law and Historiography. Hart Publishing, Oxford.
Google Scholar
Elgesem F, Aneme GA (2009) The Rights of the Accused: A Human Rights Appraisal. In: Tronvoll K, Schaefer Ch, Aneme GA The Ethiopian Red Terror Trials: Transitional Justice Challenged. James Currey, New York.
Google Scholar
Friman H (1999) The Rights of Persons Suspected or Accused of a Crime. In: Lee R (ed.) The International Criminal Court: the making of the Rome Statute: Issues, Negotiations, Results. Kluwer Law International, The Hague.
Google Scholar
Geiger R (1998) The German Border Guard Cases and International Human Rights.European Journal of International Law 9: 540–549.
Article Google Scholar
Graven PH (1965) An Introduction to Ethiopian Penal Law (Articles 1-84 Penal Code). Haile Sellassie I University Press, Addis Abeba.
Google Scholar
Haldemann F (2005) Gustav Radbruch v. Hans Kelsen: A Debate on Nazi Law. Ratio Juris 18: 162–178.
Article Google Scholar
Herdegen MJ (1995) Unjust Laws Human Rights, and the German Constitution: Germany’s Recent Confrontation with the Past. Columbia Journal of Transnational Law 33: 591–606.
Google Scholar
Howland T (2000) Learning to make proactive human rights interventions effective: the Carter Centre and Ethiopia’s Office of the Special Prosecutor. Wisconsin International Law Journal 18: 1–26.
Google Scholar
International Law Commission (2008) Preliminary report on immunity of State officials from foreign criminal jurisdiction, Special Rapporteur Roman Anatolevich Kolodkin,UNGAOR, 60th Sess, UN Doc A/CN.4/601 (29 May 2008).
Google Scholar
IOL (2006) Ethiopia Awaits Verdict of Mengistu. http://www.iol.co.za/news/africa/ethiopia-awaits-verdict-of-mengistu-trial-306974c. Accessed 20 September 2016.
Jia BB (2012) The Immunity of State Officials for International Crimes Revisited. Journal of International Criminal Justice 10: 1303–1321.
Article Google Scholar
Kidane WL (2002) The Ethiopian “Red Terror” Trials. In: Bassiouni MCh (ed.) Post-Conflict Justice. Transnational Publishers, New York.
Google Scholar
Kirchheimer O (1995) Trial by Fiat of the Successor Regime. In: Kritz N (ed.) Transitional Justice: How Emerging Democracy Reckon With Former Regimes Vol. I. United States Institute of Peace, Washington DC.
Google Scholar
Kissi E (2006) Revolution and Genocide in Ethiopia and Cambodia. Lexington Books, Oxford.
Google Scholar
Mayfield J (1995) The Prosecution of War Crimes and Respect for Human Rights: Ethiopia’s Balancing Act. Emory International Law Review 9: 553–594.
Google Scholar
Mekonnen YK (ed) (2013) Ethiopia: The Land, Its People, Culture and History. New Africa Press, Dar es Salaam.
Google Scholar
Ministry of Justice (2011) the FDRE Ministry of Justice Pardon Board to the FDRE President Office, Cover Letter No. 170-5-83/2011, 18 May 2011, signed by the then Minister of Justice, Assefa Kesito
Google Scholar
New York Times (1993) Smother Nightmare of Torture in Ethiopia Is Relived in an Atlanta Court. http://www.nytimes.com/1993/05/22/us/nightmare-of-torture-in-ethiopia-is-relived-in-an-atlanta-court.html. Accessed 23 June 2016.
New York Times (2006) http://www.nytimes.com/2006/06/04/magazine/04torturer.html?pagewanted=2. Accessed 24 June 2016.
Okoth JA (2014) The Crime of Conspiracy in International Criminal Law. T.M.C Asser Press, The Hague.
Book Google Scholar
Paulson BL, Paulson SL (2006) Five Minutes of Legal Philosophy (1945). Oxford Journal of Legal Studies Vol. 26, No. 1: 13–15.
Article Google Scholar
Paulson BL, Paulson SL (2006) Statutory Lawlessness and Supra-Statutory Law (1946). Oxford Journal of Legal Studies 26: 1–11.
Article Google Scholar
Paulson SL (1995) Radbruch on Unjust Laws: Competing Earlier and Later Views. Oxford J Legal Studies Vol. 15, No. 3: 489–500.
Article Google Scholar
Paulson SL (2006) On the Background and Significance of Gustav Radbruch’s Post-War Papers’ Oxford Journal of Legal Studies, Vol. 26, No. 1: 17–40.
Article Google Scholar
Provisional Military Government of Ethiopia (1974) A Proclamation on the Definition of Powers of the Provisional Military Administrative Council and its Chairman Proclamation 2 of 1974.
Google Scholar
Provisional Military Government of Ethiopia (1974) A Proclamation to Provide for the Establishment of a Provisional Military Government of Ethiopia Proclamation 1 of 1974 as Amended by Proclamation 27 of 1975.
Google Scholar
Provisional Military Government of Ethiopia (1974) Public Order and Safety Proclamation 10 of 1974.
Google Scholar
Provisional Military Government of Ethiopia (1974) The Special Penal Code Proclamation 8 of 1974.
Google Scholar
Provisional Military Government of Ethiopia (1977) A Proclamation to Redefine the Powers and Responsibilities of the Provisional Administration Military Council and that of the Council of Ministers Proclamation 110 of 1977.
Google Scholar
Provisional Military Government of Ethiopia (1977) Proclamation 129 of 1977.
Google Scholar
Provisional Military Government of Ethiopia (1981) The Revised Special Penal Code Proclamation 214 of 1981.
Google Scholar
Schabas WA (2009) In absentia Proceedings before International Criminal Courts. In: Sluiter, G and Vasiliev S (eds.) International Criminal Procedure: Towards a Coherent body of the Law. Cameron May International Law & Policy, London.
Google Scholar
Schabas WA (2011) An Introduction to the International Criminal Court 4 ed. Cambridge University Press, Cambridge.
Google Scholar
Shaw GJ (2012) Note, Convicting Inhumanity in Absentia: Holding Trials in Absentia at the International Criminal Court. Geo. Wash. Int’l L. Rev 44: 107–140.
Google Scholar
Special Public Prosecutor’s Office (1994) Report of the Office of the Special Public Prosecutor.
Google Scholar
Stan L, Nedelsky N (eds.) (2013) Encyclopaedia of Transitional Justice Volume II. Cambridge University Press, Cambridge.
Google Scholar
The Empire of Ethiopia (1957) The Penal Code of Ethiopia Proclamation 158 of 1957.
Google Scholar
The Empire of Ethiopia (1960) The Civil Code the Empire of Ethiopia Proclamation 165 of 1960.
Google Scholar
The Empire of Ethiopia (1961) Ethiopian Criminal Procedure Code Proclamation 185 of 1961.
Google Scholar
The Federal Democratic Republic of Ethiopia (1995) The Proclamation to Pronounce the Coming into Effect of the Constitution of the Federal Democratic Republic of Ethiopia Proclamation No. 1 of 1995.
Google Scholar
The Federal Democratic Republic of Ethiopia (1996) Federal Courts Proclamation 25 of 1996.
Google Scholar
The Federal Democratic Republic of Ethiopia (2004) A Proclamation to Provide for the Procedure of Granting Pardon Proclamation 395 of 2004.
Google Scholar
The Federal Democratic Republic of Ethiopia (2004) Criminal Code Proclamation 414 of 2004.
Google Scholar
The Federal Democratic Republic of Ethiopia (2014) A Proclamation to Provide for the Procedure of Granting and Executing Pardon Proclamation 840 of 2014.
Google Scholar
The Independent (2006) Mengistu Found guilty of Ethiopian Genocide http://www.independent.co.uk/news/world/africa/mengistu-found-guilty-of-ethiopian-genocide-428233.html. Accessed 20 September 2016.
The Irish Times (2006) Ethiopia’s Mengistu found guilty of genocide after 12-year trial. http://www.irishtimes.com/news/ethiopia-s-mengistu-found-guilty-of-genocide-after-12-year-trial-1.1037614. Accessed 20 September 2016.
The Office of the Presidency (2011) Decision Given by the Office of the Presidency, Letter No. 609/2011), on 28 May 2011
Google Scholar
The Special Public Prosecutor’s Office (2010) A Dossier Tainted with Blood: A Report on the Crimes Committed by Provisional Military Administration Council-Derg or Government against Innocent Ethiopians
Google Scholar
The Transitional Government of Ethiopia (1991) Transitional Period Charter of Ethiopia No. 1 of 1991.
Google Scholar
The Transitional Government of Ethiopia (1992) Special Public Prosecutor Office Establishment Proclamation 22 of 1992.
Google Scholar
The Washington Post (2006) Exiled Ethiopian Dictator Found Guilty of Genocide. http://www.washingtonpost.com/wp-yn/content/article/2006/12/12/AR2006121200447html. Accessed 20 September 2016.
Tiba F (2011) The Trial of Mengistu and other Derg members for Genocide, Torture and Summary Executions in Ethiopia. In: Murungu CH & Biegon J (eds.) Prosecuting International Crimes in Africa. Pretoria University Law Press, Pretoria.
Google Scholar
Tomonori M (2001) The Individual as Beneficiary of State Immunity: Problems of the Attribution of Ultra Vires Conduct. Denver J Int’l L and Policy 29: 261–284.
Google Scholar
Tomuschat C (2009) Prosecuting Denials of the Past Alleged Genocides. In: Paola G (ed) The UN Genocide Convention A Commentary. Oxford University Press, Oxford.
Google Scholar
UN (1968) Convention on the Non-applicability of Statutory Limitation to War Crimes and Crimes against Humanity (1968) United Nations, Treaty Series, vol. 754, p. 73.
Google Scholar
Van Alebeek R (2008) The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law. Oxford University Press, Oxford.
Google Scholar
Voice of America (2011) Ethiopia Commutes Death Sentences for Former Officials Accused of Genocide. http://www.voanews.com/content/ethiopia-commutes-death-sentences-for-mengistu-officials-22960723/158216.html. Accessed 20 August 2016.
Watts A (1994-III) The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers. Recueil des Cours 247: 9–130.
Google Scholar
Werle G (1995) We asked for Justice and Got the Rule of Law’ German Courts and the Totalitarian Past. South African Journal on Human Rights 11: 70–83.
Article Google Scholar
Werle G, Burghardt B (2011) The German Federal Supreme Court (Bundesgerichtshof, bgh) on Indirect Perpetration. Journal of International Criminal Justice 9: 207–226.
Article Google Scholar
Werle G, Jessberger F (2014) Principles of International Criminal Law 3rd edn. Oxford University Press, Oxford.
Google Scholar
Whomersley MFC (1992) Some Reflections on the Immunity of Individuals for Official Acts. ICLQ 41: 848–858.
Article Google Scholar
Yeshanew S (1995) Special Prosecutor v Hailemariam (Mengistu) and 173 others, Preliminary objections, Criminal File No 1/87, 9th October 1995, Federal High Court in International Law in Domestic Courts, Oxford Report on International Law.
Google Scholar
YouTube (2015) AP, Ethiopia Mengistu Officials Trial. https://www.youtube.com/watch?v=xiRAMYCXuaA. Accessed 20 September 2016.
YouTube (2016) CNN: Chairman of the Derg and Head of State of Ethiopia, Mengistu Haile Mariam. https://www.youtube.com/watch?v=Z8Z3Ko6AZeY. Accessed 20 September 2016.
Zakerhossein MH, De Brouwer A (2015) Diverse Approaches to Total And Partial in Absentia Trials by International Criminal Tribunals. Criminal Law Forum 26: 181–224.
Article Google Scholar

Cases

Federal High Court, the SPP v Colonel Mengistu et al, First Criminal Division, Criminal File 1/95.
Google Scholar
ICTR, Prosecutor v Rutaganira, Decision on Request for Early Release, ICTR-95-1C, President 2 June 2006.
Google Scholar
ICTR, Prosecutor v Rutaganira, Decision on the Motion for Reconsideration of Denial of Request of Early Release, ICTR-95-1C, President, 28 February 2008.
Google Scholar
ICTR, Prosecutor v Bagaragaza, Decision on Early Release of Micheal Bagaragaza ICTR-05-86, President, 24 October 2014.
Google Scholar
R v Bow Street Magistrate (ex parte Pinochet) 91999UKHL17, (2000) 1 AC147.
Google Scholar
The Federal High Court of Ethiopia Special Prosecutor v Legesse Asfaw et al, Criminal File No. 1264/93.
Google Scholar
The Federal High Court of Ethiopia Special Prosecutor v Tesfayie Woldesilassie et al, Criminal File No. 206/93.
Google Scholar
The Federal High Court of Ethiopia, the Special Prosecutor v Melaku Tefara et al, Criminal File No. 03112/97.
Google Scholar
The Federal High Court, Special Prosecutor v Debela Dinsa et al, Criminal File No. 912/89.
Google Scholar
The Federal High Court, the SPP v Abebe Melaku, Criminal File No. 227/2001.
Google Scholar
The Federal High Court, the SPP v Basha Kebede, Criminal File 960/89.
Google Scholar
The Federal High Court, the SPP v Colonel Mengistu et al, Charge, Criminal File 401/94, October, 1994 as amended in 1995.
Google Scholar
The Federal High Court, the SPP v Getachew Tekeba, Criminal File 914/89.
Google Scholar
The Federal High Court, the SPP v Kebede Keberet, Criminal File 917/89.
Google Scholar
The Federal High Court, the SPP v Mengistu et al Preliminary Objection Presented by the Defense Counsels 1995.
Google Scholar
The Federal High Court, the SPP vs Eshetu Alemu, Criminal File 921/89.
Google Scholar
The Federal Supreme Court, Alemeshet Haile Aferu (Accused-Applicant) v SPP (Respondent), Criminal File 10843/2003.
Google Scholar
The Federal Supreme Court, Telomos Moniye (Applicant) v the SPP (Respondent), Decision on a Leave to Appeal out of time, Criminal Appeal File No. 8642/2003.
Google Scholar
The Federal Supreme Court, the SPP (appellant) v Mengistu et al (Accused-Respondents), Criminal File No. 30181 (2008).
Google Scholar
The International Court of Justice, Democratic Republic of Congo v Belgium, Arrest Warrant of 11 April 2000, ICJ, Judgment, ICJ Reports 3 (2002).
Google Scholar
The International Court of Justice, Djibouti v France, Certain Questions of Mutual Assistance in Criminal Matters, Judgment, ICJ Reports 2008.
Google Scholar
The International Criminal Court, the Prosecutor v. Germain Katanga Decision Review Concerning Reduction of Sentence, Appeal Chamber, ICC-01/04/01/07 13 November 2015.
Google Scholar
United States Court of Appeals, Eleventh Circuit, Hirute Abebe-Jira; Edgegayehu Taye; Elizabeth Demissie, Plaintiffs-Appellees v Kelbessa Negewo, Defendant-Appellant, 72 F.3d 844, decision of 10 January 1996.
Google Scholar

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Law School, Jimma University, Jimma, Ethiopia
Marshet Tadesse Tessema

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Tessema, M.T. (2018). Criminal Accountability for Derg Crimes: Prosecution of Politicide. 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_5

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DOI: https://doi.org/10.1007/978-94-6265-255-2_5
Published: 27 September 2018
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