International Criminal Justice Series

Transcription

1 International Criminal Justice Series Volume 18 Series editors Gerhard Werle, Berlin, Germany Moritz Vormbaum, Münster, Germany

2 Series Information The series aims to create a platform for publications covering the entire field of international criminal justice. It therefore deals with issues relating, among others, to the work of international criminal courts and tribunals; transitional justice approaches in different countries; international anti-corruption and anti-money laundering initiatives; the history of international criminal law. It is peer-reviewed and seeks to publish high-quality works emanating from excellent scholars. Editorial Office Prof. Dr. Gerhard Werle Humboldt-Universität zu Berlin Faculty of Law Unter den Linden 6, Berlin, Germany gerhard.werle@rewi.hu-berlin.de vormbaum@uni-muenster.de More information about this series at

3 Marshet Tadesse Tessema Prosecution of Politicide in Ethiopia The Red Terror Trials 123

4 Marshet Tadesse Tessema Law School Jimma University Jimma, Ethiopia ISSN ISSN (electronic) International Criminal Justice Series ISBN ISBN (ebook) Library of Congress Control Number: Published by T.M.C. ASSER PRESS, The Hague, The Netherlands Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg T.M.C. ASSER PRESS and the author 2018 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Printed on acid-free paper This T.M.C. ASSER PRESS imprint is published by the registered company Springer-Verlag GmbH, DE part of Springer Nature The registered company address is: Heidelberger Platz 3, Berlin, Germany

5 Acknowledgements This book is based on a dissertation that was conducted under the auspices of the South African-German Centre for Transnational Criminal Justice, which is run cooperatively by the Law Faculties of the University of the Western Cape and Humboldt-Universität zu Berlin. It would not have come to fruition without the generous and unwavering support of a large number of people and institutions that I would now like to acknowledge and sincerely thank. First, I extend my heartfelt gratitude to Prof. Dr. Gerhard Werle of Humboldt-Universität zu Berlin and Co-director of the South African-German Centre for Transnational Criminal Justice, whose inspiration, constructive ideas, continuous support and guidance helped me greatly to accomplish this work. This text has immensely benefited from his constructive comments, both in terms of substance and form. I also owe great thanks to Prof. Dr. Lovell Fernandez of University of the Western Cape and Co-director of the South African-German Centre for Transnational Criminal Justice, for his guidance, encouragement, and thoroughly editing this work. I also owe a debt of gratitude to Dr. Moritz Vormbaum, Coordinator of the Centre, for providing an invaluable guidance since I began working on this project and for his insightful comments on the manuscript. I would also like to thank the Deutscher Academischer Austausch Dienst (DAAD) for funding my research. My endeavour on the research would not have been possible without DAAD s financial support; hence, I am thankful for the financial support. Vielen Dank (Galaatooma/ )! The research process leading to the finalization of this book was also supported in part by Open Society Foundations (OSF). The opinions expressed herein are the author s own and do not necessarily express the views of OSF. I am also grateful to Anja Schepke, Hazel Jeftha, and Farieda Hendricks for their excellent and unfailing administrative support throughout my research process. My heartfelt gratitude also goes to staff members of the South African-German Centre, colleagues at the Chair of Prof. Dr. Gerhard Werle of Humboldt University, the Red Terror Martyrs Museum in Addis, Prof. Martin Heger, Prof. Yonatan v

6 vi Acknowledgements Fisseha, Prof. Benyam Mezmur, Prof. Raymond Koen, Prof. Bernard Martin and Dr. Zemelak Ayele, for their support and encouragement during my research. I am also truly grateful to my colleagues and friends Dr. Sosteness Materu, Windell Nortje, Dr. Jean Philipho, Dagim Melese, Markos Debebe, Seada Hussien, Aziz Epik, Marlen Vesper-Graske, Dr. Verena Zoppie, Tadesse Sime, and Zainabu Mango who supported me in one way or another in the course of conducting this research. Finally yet importantly, I would like to thank my fiancé Elsabeth Abreham (Kiyaye), my parents, my grandmother Workenesh Manalhe, my siblings, and Yeshu for their unconditional love and unflinching support throughout writing this work and in my life in general. Above all, I thank and praise God for His greatest Love, Grace, and Blessings! Marshet Tadesse Tessema

7 Contents 1 Prefatory Part General Introduction: Setting the Context Objectives of the Book Outline of the Book References Historical Survey of the Derg Regime and the Infamous Red Terror The Prelude to the 1974 Revolution From an Aristocratic Feudal Monarchy to the Dictatorial Military Junta The Urban Opposition Against the Derg The Genesis of the Red Terror and the White Terror The Pre-September 1976 Terror The Post-September 1976 Terror: Qey Sheber Human Cost of the Terror: Quantification of the Victims The War against the Insurgents in the North Indiscriminate Bombardments Creation of Famine and Manipulation of Aid Forced Resettlement The Demise of the Mengistu Regime and the Rise to Power of the Ethnic-based Insurgents Interim Conclusion References The Ethiopian Legal Framework for the Prosecution of Crimes Under International Law Introductory Remarks: Setting the Framework A Brief Survey of the Regulation of Core Crimes Under Ethiopian Law vii

8 viii Contents 3.3 International Crimes Under the 1957 Penal Code Genocide Crimes Against Humanity War Crimes Modes of Participation Under the Penal Code Defenses Penalties Interim Conclusion References The Ethiopian Approach to Reckon with Derg Crimes: The Road to the Creation of the Special Public Prosecutor s Office Overview of the Strategies to Confront a Repressive Past Promulgation of the Interim Charter and the Establishment of the Transitional Government Criminal Accountability as a Means to Confront Derg Crimes: The Establishment of the Special Public Prosecutors Office Creation of the Special Public Prosecutor s Office and Establishment of a New Court System The Judiciary and the Office of the Public Defender Habeas Corpus Petitions of Detainees Interim Conclusion References Criminal Accountability for Derg Crimes: Prosecution of Politicide The Special Public Prosecutor s Investigation and Prosecutorial Strategy Terror on Trial: The Red Terror Trials The Accused Victims in the Red Terror Trials The SPP v Colonel Mengistu Haile-Mariam et al: Filed First; Concluded Last The Indictment The Trial: Heads of State and Government on Trial The Main Trial: Tendering Evidence and the Ruling of the Federal High Court Conclusion of the Prolix Trial: The Verdict Stocktaking of the Judgment: Evaluation Sentencing Decision Appellate Proceedings: Arguments of the Parties and Appellate Court s Decision From Pardon to Release on Probation References

9 Contents ix 6 Stocktaking of the Red Terror Trials: Is It an Approach Worth Emulating? Criticisms or Pitfalls of the Ethiopian Transition The Red Terror Trials Trials of the Vanquished: Victor s Justice Trial in Absentia: Criminal Proceedings in the Absence of the Accused in the Dock The Use of Capital Punishment Protracted Proceedings and Their Implication for Fair Trial Rights Genocide or Not Debate: Did the Mengistu Regime Commit Genocide? Offenders Oriented Approach: A Thin Slice of the Truth The Legacy of the Red Terror Trials to Ethiopia s Transition from the Derg Past Trials, Not Summary Executions: Reversed Summary Vendetta? Accountability for Heinous Crimes: Justice Redux Legal Legacy References Concluding Remarks Recommendations Annexes Index

10 Acronyms and Abbreviations AESM Am. J. Int l L AU B.U. INT L L.J BYBIL CELU Cf. ECHRs ECOWAS ECtHR ed(s). edn. EJIL EPRDF EPRP et seq FDRE FHC FSC HILJ i.e. ICCPR ICJ ICTR ICTY ILR IMT Infra JICJ MEISON All-Ethiopian Socialist Movement American Journal of International Law African Union Boston University International Law Journal British Year Book of International Law Confederation of Ethiopian Labor Unions Compare (confer) European Convention on Human Rights The Economic Community of Western African States European Court of Human Rights Editor(s) Edition European Journal of International Law Ethiopian People s Revolutionary Democratic Front Ethiopian People s Revolutionary Party the following (et sequens; etsequentes) Federal Democratic Republic of Ethiopia Federal High Court Federal Supreme Court Harvard International Law Journal That is (id est) International Covenant on Civil and Political Rights International Court of Justice International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia International Law Reports International Military Tribunal at Nuremberg Below Journal of International Criminal Justice Mela Ethiopia Sosialist Niqinaqē xi

11 xii p., pp. PDRE PDRE PMAC POMOA SPP Supra TG UDHR WPE Acronyms and Abbreviations Page, pages People s Democratic Revolutionary Party Popular Democratic Republic of Ethiopia Provisional Military Administrative Council Provisional Office of Mass Organizational Affairs Special Public Prosecutor Above Transitional Government Universal Declaration of Human Rights Workers Party of Ethiopia