Silly Hair Splitting:  No Pardon for Genocidal Criminals

The Crime of Genocide vs. the Crime of Politicide

By Tecola W. Hagos

I read the stupendous assertion of a journalist that the Derg Members that were convicted for their crimes of �genocide� were punished for the wrong crime of �Genocide.� In his latest piece Eskinder Nega after going through some torturous and wrong analysis of the Genocide Convention and the meaning of �Genocide� concluded, �Derg officials have been sentenced to death for the wrong reasons. Whatever the courts have said, they are not guilty of genocide. And as we consider their plea for forgiveness as a nation, we must unavoidably take this overriding issue into consideration.� [Eskinder Nega, � Ethiopia �s Derg: Guilty of GENOCIDE or POLITICIDE?� Ethiomedia, December 31, 2010]

Such statement is clearly a misreading or deliberate distortion of the criminal laws of Ethiopia and a challenge to its sovereign power to legislate laws and procedures within its national jurisdiction. The Penal Code of Ethiopia in Article 281 states: �Whosoever, with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group, organizes, orders or engages in, be it in time of war or in time of peace: (a) killings, bodily harm or serious injury to the physical or mental health of members of the group, in any way whatsoever; or (b) measures to prevent the propagation or continued survival of its members or their progeny; or (c) the compulsory movement or dispersion of peoples or children, or their placing under living conditions calculated to result in their death or disappearance, is punishable with rigorous imprisonment from five years to life, or, in cases of exceptional gravity, with death.� [Emphasis mine]

In the Penal Code of Ethiopia, in Article 281, it is clearly stated that a �political group� is one of the protected groups under the Penal Code of Ethiopia. The 1948 Genocide Convention that Ethiopia was among the first to ratify in 1949, does not mention �political group� as one of the protected groups.  Such fact does not in any way prevent Ethiopia , as a sovereign nation, from identifying and prosecuting and punishing crimes committed against �political� groups that it deems need protection under its own municipal or domestic law. Moreover, when you read the legislative history of the Genocide Convention, �political groups� were also in the draft convention but for political reasons, the confrontation between totalitarian regimes and those democratic ones resulted in withdrawing that that phrase, but in no way censored any municipal or domestic legal protection for that group.

There seems to be a confused understanding of the interplay of international agreements with domestic sovereign power in Eskinder�s analysis. First of all, one must acknowledge the fact that a State�s national sovereignty and independence is reflected in its power to prosecute and punish crimes committed within its territory. In recent developments that fundamental power has been expanded with the concept of �extraterritoriality� having been incorporated in very many national laws to prosecute and punish crimes committed against the citizens or interest of such a nation else where in the world. [The literature on the subject of criminal law and a state�s sovereign power is numerous. Just as a starter see: Robert Cryer, �International Criminal Law vs State Sovereignty: Another Round?� The European Journal of International Law Vol. 16 no.5, 979-1000, 2006]

There are self-executing (not requiring implementing legislations) and non-self executing international treaties (requiring implementation legislation). Even if we consider the Genocide Convention as self-executing, it does not on its own exclude or bar the State of Ethiopia from legislating certain additional groups to be protected from the crimes of �genocide� in its own domestic or municipal criminal law. It is the fundamental right and power of any State in setting limits to its own penal code and types of crimes, and types of punishments it deems appropriate. For Example there are only ninety six States that have ratified the Genocide Convention out of one hundred ninety five (195), of whom one hundred ninety two (192) are Members of the United Nations.

The one situation that will not be handled under Article 281 is where the genocide is committed against a �political group� outside of the territorial jurisdiction of Ethiopia . In such instances Ethiopia is limited to the observance of the identified protected groups under the Genocide Convention that does not mention �political groups� for the jurisdiction to prosecute such criminals who committed genocide elsewhere outside of Ethiopia is conferred on Ethiopia through its ratification of the Genocide Convention. The Derg Officials committed their horrendous crimes against �political groups� within Ethiopia , thereby committing crimes of genocide under Article 281. Ethiopia does not need any confirmation of its power to enforce its laws, to prosecute criminals under its laws and to punish such convicted criminals under its penal system.

It is quite ridiculous to think of such excuses. There is no �international� criminal code, but regimes of principles either customary or treaty based that may have some limited bearing on some criminal activities. As a matter of fact, the Genocide Convention is considered by some as the first international �criminal code� and yet a document with limited application as indicated above. Now, does it follow from such situation no nations would legitimately outlaw certain acts and punish criminals thereof?

Another misguided and disingenuous argument is to claim that the judicial system of Ethiopia in Ethiopia does not meet international standards; therefore the convictions and decisions of punishments are erroneous. What type of international standard is to be used, and what authority for such insistence could such individuals present to convince us of the validity of their arguments. This brings to mind Rumsfeld�s famous statement that one would go to war with the soldiers one has, not with the soldiers one desires to have. Ethiopia is not required to setup a different system to try Derg Officials than it would provide for its general public. There are worse legal systems than that of Ethiopia , and yet thousands get convicted for crimes under such systems in few instances even primitive punishments are carried out in public like beheadings in Saudi Arabia , stoning in Iran , Somalis, et cetera.

The convicted Derg Officials of crimes of genocide and human rights abuses et cetera, should be thankful for the decent treatment that they received in the hands of the current Government officials of Ethiopia . Had they been the winners in 1991, they would have tortured dismembered and displayed the bodies of Meles Zenawi and members of his political groups in public places and would have let dogs and hyenas to feast upon them as they had done in cases of countless Ethiopians during their reign of terror and murder and violence. It just amazes me how anyone would spend much time defending and trying to have such bloody savage murderers and torturers of a whole nation pardoned and freed. Meles Zenawi and his collaborators will face their own legal process in time. Let us not confuse one with the other. The fact that the Government of Meles Zenawi has violated the rights of Ethiopians in much the same way as the Derg, does not in any way minimize the crimes of the Derg Officials.  

I find Eskinder Nega�s article puzzling and bizarre. He has been writing sky high diatribe condemning and vilifying the functionaries of Meles Zenawi because of his personal mistreatment (a couple of slap and some time in prison), and now he turns around and is trying to have convicted Derg Officials pardoned. As incredulous as it is, he seems to admire the arrogance and blood thirsty posturing of those subhuman creatures. The Derg Officials are convicted criminals for the brutal murders and violations of the human dignity and lives of millions of Ethiopians. No matter how they buffed up their chest, they are bunch of cowards who mostly terrorized and murdered unarmed civilians. Their victims were not dogs and cats, but real human beings: young and old, men and women, school children and vibrant youngsters et cetera. How about their torrent of  blood?  Their suffering? Their memories? It is not some fading memory either; it is seared in the ethos of those who suffered: Us, millions of Us! I would like to see these brutal murderers punished properly by hanging them in public squares.

Tecola W. Hagos

Washington DC

December 31, 2010

Appendix

Chapter: Book III Offences Against the State or Against National or International Interests - Title II Offences Against the Law of Nations - Chapter I Fundamental Offences

Art. 281. Genocide; Crimes against Humanity

Whosoever, with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group, organizes, orders or engages in, be it in time of war or in time of peace:

(a) killings, bodily harm or serious injury to the physical or mental health of members of the group, in any way whatsoever; or
(b) measures to prevent the propagation or continued survival of its members or their progeny; or
(c) the compulsory movement or dispersion of peoples or children, or their placing under living conditions calculated to result in their death or disappearance,

is punishable with rigorous imprisonment from five years to life, or, in cases of exceptional gravity, with death.

Art. 282. War crimes against the civilian population

Whosoever, in time of war, armed conflict of occupation, organizes, orders or engages in , against the civilian population and in violation of the rules of public international law and of international humanitarian conventions:

(a) killings, torture or inhuman treatment, including biological experiments, or any other acts involving dire suffering or bodily harm, or injury to mental or physical health; or

(b) willful reduction to starvation, destitution or general ruination through the depreciation, counterfeiting or systematic debasement of the currency; or

(c) the compulsory movement or dispersion of the population, its systematic deportation, transfer or detention in concentration camps or forced labour camps; or

(d) forcible enlistment in the enemy's armed forces, intelligence services, or administration; or

(e) denationalization or forcible religious conversion; or

(f) compulsion to acts of prostitution, debauchery or rape; or

(g) measures of intimidation or terror, the taking of hostages or the imposition of collective punishments or reprisals; or

(h) the confiscation of estates, the destruction or appropriation of property, the imposition of unlawful or arbitrary taxes or levies, or of taxes or levies disproportionate to the requirements of strict military necessity, is punishable with rigorous imprisonment from five years to life, or, in cases of exceptional gravity, with death.

Art. 283. Crimes against the wounded, sick or shipwrecked persons

Whosoever, in the circumstances defined above, organizes, orders or engages in:

(a) killings, torture or inhuman treatment or other acts entailing dire suffering or physical or mental injury to wounded, sick or shipwrecked persons, or to members of the medical or first-aid services; or

(b) the destruction, rendering unserviceable or appropriation of supplies, installations or stores belonging to the medical or first-aid services, in a manner which is unlawful, arbitrary or disproportionate to the requirements of strict military necessity,

is punishable in accordance with Art. 282

Art. 284. War crimes against prisoners and interned persons

Whosoever, in the circumstances defined above:

(a) organizes, orders or engages in killings, acts of torture or inhuman treatment or acts entailing dire suffering or injury to prisoners of war or interned persons; or

(b) compels such persons to enlist in the enemy's armed forces or intelligence or administrative services,

is punishable in accordance with Art. 282

Art. 285. Pillage, piracy and looting

Whosoever organizes, orders or engages in looting, piracy, pillage, economic spoliation or the unlawful destruction or removal of property on pretext of military necessity, is punishable in accordance with Art. 282

Art. 286. Provocation and preparation

Whosoever, with the object of committing, permitting or supporting any of the acts provided for in the preceding articles:

(a) publicly encourages them, by word or mouth, images or writings; or
(b) conspires towards or plans with another, urges the formation of, or himself forms a band or group, joins such a band or group, adheres to its schemes or obeys its instructions,

is punishable with rigorous imprisonment not exceeding five years.

Book I Offences and the Offender - Title I Criminal Law and its Scope - Chapter II Scope of Application of the Law - Section II Conditions as to Place - Paragraph 2 Subsidiary Application

Art. 19. Conditions for subsidiary application

(1) In the application of this Code it shall be presumed:

(a) that the complaint or denunciation by the victim or his dependants was lodged when it is a condition for prosecution and trial under the law of the place of commission of the offence or under Ethiopian law;

(b) that the offender is within the territory of the Empire and has not been extradited, or that extradition was obtained by reason of the offence committed;

(c) that the offence was not legally pardoned in the country of commission and that the prosecution is not barred either under the law of the country where the offence was committed or under Ethiopian law.

(2) Prosecution shall be instituted by the Attorney General after consultation with the Minister of Justice.

(3) The punishment to be imposed under this Code shall not be more severe than the heaviest penalty prescribed by the law of the country of commission where such country is recognized by Ethiopia .

Art. 20. Effect of foreign sentences

(1) In all cases where Ethiopian courts have a subsidiary jurisdiction only (Art. 15 (1), 17 and 18), the offender cannot be tried and sentenced in Ethiopia if he was regularly discharged or acquitted for the same act in a foreign country.

(2) If the offender was tried and sentenced in a foreign country but did not undergo his punishment, or served only part of it in the said country, the punishment, or the remaining part thereof, may if it is not barred by limitation, be enforced according to the forms prescribed by this Code. The provisions of Art. 12 (3) shall apply mutatis mutandis to this Article.

Source:

PENAL CODE OF THE EMPIRE OF ETHIOPIA OF 1957, Proclamation No. 158 of 1957, Negarit Gazeta, Extraordinary Issue No. 1 of 1957, 23 July 1957. Came into force: 5 May 1958 

Constitution of the Federal Democratic Republic of Ethiopia

Adopted: 8 Dec 1994

Art. 28. Crimes Against Humanity

1. Criminal liability of persons who commit crimes against humanity, so defined by international agreements ratified by Ethiopia and by other laws of Ethiopia , such as genocide, summary executions, forcible disappearances or torture shall not be barred by statute of limitation. Such offences may not be commuted by amnesty or pardon of the legislature or any other state organ.

2. 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.

https://www.uni-wuerzburg.de/law/et00000_.html

Note on Political Groups: The Penal Code of the Empire of Ethiopia of 1957, incorporates the crime of genocide in Article 281 using language which closely parallels the wording of the U.N. Genocide Convention, "with intent to destroy, in whole or in part, a national, ethnical, racial or religious group" In addition to the four groups named in the Convention, the Ethiopian Penal Code includes "political group"

Ethiopia took part in the negotiation of the Genocide Convention in 1948, signed the Convention on the day it become open for signature and was the first nation to ratify the Convention on July 1, 1949.