Derg guilty of genocide or politicide-a reply to Eskinder Nega by Firew Kebede Tiba, PhD

Genocide is a relatively new term coined by Rapahel Lemkin, a Polish Jew lawyer, in 1944. This means, all crimes of genocide that we recognize today such as the Jewish holocaust or the Armenian genocide were not labeled as such before this term was coined. Such crimes were known by different names, among others, crimes against humanity. The NAZI war crimes suspects were not charged and convicted of genocide. Rather they were charged and found guilty of committing crimes against peace, waging war of aggression, war crimes and crimes against humanity. The word genocide, however, came to acquire such a powerful meaning and connotations so that labeling all types of massive killings as genocide as opposed to, say, crimes against humanity is becoming very commonplace. In reality, crimes against humanity is as heinous, grave and an affront to the conscience of humanity as genocide is. Any argument which seeks to diminish the moral blameworthiness of individuals who commit crimes against humanity is unacceptable. For argument sake, however, it does not make a difference whether Derg officials were convicted of crimes against humanity or genocide as far as the gravity of their offence is concerned both under our law and under international law. Perhaps, for various reasons, there is more stigma attached to genocide than other forms of mass killings.

On political groups: as Eskinder pointed out, including political groups among groups protected against genocide was a controversial subject and it was eventually dropped from the 1948 Genocide Convention due to a political compromise which emanated from a pressure exerted by the Soviet Block. Ethiopia at the time simply abstained and did not vote against the exclusion of political groups. But for Lemkin, the man who coined the word genocide, political groups were protected against genocide, although he excluded them later in his draft treaty prepared for the UN out of fear of disagreement by member states. Here is the original definition from his book: �Axis Rule in Occupied Europe� (1943):

�Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be the disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.�

Furthermore, in 1946, when the General Assembly of the United Nations called for a convention on genocide on its 11 December 1946 resolution, it explicitly included crimes committed on political grounds as crimes of genocide punishable under international law.

Be this as it may, Ethiopia, along with a handful of other countries such as, France (Art. 211-1 of its Penal Code) and Bolivia moved to include political groups in the category of groups protected against genocide. Considering all these, and the fact that the Ethiopian Penal Code of 1957 pre-existed the commission of the crimes, there is no legal ground for disputing that the suspects could not be charged with genocide. Yes, our law is not co-extensive with the genocide convention or the national laws of other countries which excluded political groups from protection, but it does not contradict any rule of international law and it better protects Ethiopian citizens.

Eskinder also took issue with whether the number of victims fulfilled the threshold for genocide and obliquely referred to the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia to support his argument. This could pass for a respectable argument in defense of the suspects before any court of law if pursued rigorously but nonetheless, must fail. The essence of the law against genocide is not about numbers. It is about the intention to eliminate protected groups in whole or in part and how far the suspect goes to realize his or her intentions. We may summarily dismiss the argument that Derg did not intend to eliminate EPRP or any other political opposition in whole, because examples show that not everybody who was an EPRP member died or suffered adverse consequences. But this is immaterial. In relation to this, however, what Eskinder failed to point out is that genocide is committed not only by killing- other acts such as imprisonment, torture, even rape (as was recognized by the Rwanda Tribunal) so long as those actions were taken to further the genocidal intent amount to genocide. There is a strong case to show that, Derg intended to eliminate parts of political groups standing in opposition to its revolution. It is unrealistic to expect that Derg needed to wipe out all or a given number of EPRP members to meet the threshold. But at the very least, it is a matter of common knowledge that it imprisoned those it identified as members of the opposition in furtherance of its policy of eliminating EPRP and other opposition groups. Others who were not affected were mainly because, either they escaped or Derg was not able to lay its hands on them.

Can one counter the argument that the crime did not reach the genocidal threshold simply because only less than � of the member of the group were targeted as asserted by Eskinder? Assuming that the figures are true, let us look at a case from the Tribunal on Former Yugoslavia, where only one incident was labeled as genocide while most others were categorized as crimes against humanity. This was confirmed by the International Court of Justice as well. In this one instance relating to the massacre in Srebrenica, the victims mainly men- including those above 65 and young boys were less than 8000 in number constituting roughly about 1/5 of the population of the region. The tribunal in Krstic case driving the message home that number is only the beginning but not the end of the inquiry observed:

�the numeric size of the targeted part of the group is the necessary and important starting point, though not in all cases the ending point of the inquiry. The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration. If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4.�

So what do we know about the number of members of the opposition targeted for liquidation, torture, imprisonment, rape, enforced disappearance etc, in comparison to the EPRP membership? Is the number and composition of those targeted (including innocent children) not emblematic of the whole group? Were those who perished not essential for the survival of the group? Did this terror in fact not succeed in vanquishing EPRP and the opposition beyond any possibility of recovery? I think we have our answer.

Eskinder also wrote that the crime needs to be called politicized instead of genocide following Gurr and Harff. Politicized is not a legal term and does not carry any punishment in any modern criminal code. Until that word enters a legal lexicon we ought to call it what our criminal code calls it.

He also raised an important issue of prosecutorial discretion. I argued elsewhere that, the argument whether the acts constituted genocide as it is popularly known or not, is doing a disservice to the whole debate considering the highly politicized nature of such trials. The Special Prosecutor had an option of charging the suspects with commission of crimes against humanity carrying same punishment as well as no lesser degree of moral blameworthiness. However, he did what he did and here we are. But let it be remembered that whether they were found guilty of genocide or crimes against humanity it does not diminish the extent of their guilt. In fact, to the contrary, being charged under such a novel and uncommon provision has helped rally support for them as if they are being taken for a ride by those implementing �victor�s justice� under a controversial law. From my readings of the decision of the Federal High Court, the defense and their witnesses were sometimes wrongly trying to defend the accusations as if they were charged with trying to eliminate a particular ethnic group. Their defenses sometimes run like, �Derg did not have a policy of eliminating any ethnic group�. This was not what they were charged with and this line of defense in addition to wasting the defense�s precious time and energy had to an extent also helped in leaving the wrong perception about the trials. The Amharic word for genocide �Zero Matfat� which is equivalent to �eliminating a race� might have also played a role in this.

I agree with Eskinder that the suspects did not receive adequate legal representation and their case dragged on for decades. There are also numerous questionable aspects of issues of individual criminal responsibility which could be a basis for challenging the verdicts for some of the suspects. The legal procedure is almost complete unless the Cassation Court says otherwise. Thus, at this stage the larger debate is the extent to which they are prepared to come clean of their own accord and whether the victims and the wider society is prepared to put this behind and move on. One has to do the convincing but the tone of this otherwise fine analysis by Eskinder Nega did not seem quite like it.