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The Hidden Histories of War Crimes Trials$

Kevin Heller and Gerry Simpson

Print publication date: 2013

Print ISBN-13: 9780199671144

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199671144.001.0001

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Reading the Shadows of History

Reading the Shadows of History

The Turkish and Ethiopian ‘Internationalized’ Domestic Crime Trials

Chapter:
(p.289) 14 Reading the Shadows of History
Source:
The Hidden Histories of War Crimes Trials
Author(s):

Jackson Nyamuya Maogoto

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199671144.003.0014

Abstract and Keywords

This chapter examines Turkish and Ethiopian domestic trials, which used the framework of extant penal codes to prosecute international crimes in accordance with domestic penal codes. Turkish authorities invoked norms encompassing the laws of humanity and crimes against humanity in the prosecution of its political and military elite. The Ethiopian prosecutions (Red Terror Trials) focused on the former ruling military junta (the Derg), whose senior military and political officials were suspected of committing mass human rights violations — genocide, war crimes and crimes against humanity.

Keywords:   Turkey, Ethiopia, domestic trials, war crimes, penal codes, international crimes

(I) Introduction

The domestic trial of individuals is not novel. Numerous countries have laws that allow for prosecution of international crimes through their domestic systems. Domestic trials of individuals for international crimes are on the rise. By the turn of the twenty-first century more than thirty countries were involved in the prosecution of perpetrators of international crimes.1 Domestic trials now cover various corners of the globe, from Cambodia and Sierra Leone to East Timor and Iraq. These four countries are specifically mentioned as they offer insights into the key differences that distinguish them from other domestic criminal trials.

In Cambodia, Sierra Leone and East Timor, the United Nations was an active player. In the case of Cambodia, The Law on the Establishment of The Extraordinary Chambers of the Courts of Cambodia was the result of an agreement between the United Nations and the government of Cambodia.2 The Special Court for Sierra Leone was set up jointly by the government of Sierra Leone and the United Nations3 while the East Timor Special Panels were a result of the promulgation of a constituent instrument of the United Nations Transitional (p.290) Administration.4 All three feature significant involvement of international personnel within the judicial mechanisms. The Iraqi Special Tribunal (IST), meanwhile, was established by the Coalition Provisional Authority deriving its powers from Security Council Resolution 1483.5 The IST was a variant of the aforementioned regimes in the sense that it was instituted by the international community and led to the involvement of a core of international advisors. However, as will be seen, in contrast to the Turkish and Ethiopian trials, these courts are hybrid involving a good measure of international involvement in inception and operation. Essentially these are ‘nationalized’ international trials while the Turkish and Ethiopian courts, though also targeting principal perpetrators and accessories, were ‘internationalized’ national trials. Though separated by almost eight decades, these early nationalized trials foreshadowed the large-scale domestic prosecution of violations of international law.

This chapter delves into the nuances of the unheralded Turkish and Ethiopian trials. The Turkish and Ethiopian domestic trials were extraordinary in that they used the framework of extant penal codes to prosecute international crimes in accordance with domestic penal codes. Turkish authorities invoked norms encompassing the laws of humanity and crimes against humanity in the prosecution of its political and military elite.6 Similarly the Ethiopian prosecutions (Red Terror Trials) focused on the former ruling military junta (the Derg),7 whose senior military and political officials were suspected of committing mass human rights violations—genocide, war crimes and crimes against humanity. Yet, these trials though more ‘successful’ (in the number of defendants tried and convictions) than, say, the much more famous and relatively well known post-World War I German national (p.291) war crimes trials in Leipzig, remain under-researched. Yet, it is in the hidden history of these trials that we see the early signs of hybridity.

(II) Turkey’s Involvement in World War I: Militarism and the ‘Resolution’ of the ‘Armenian Question’

(1) Crescents and crosses? The Armenian genocide

During World War I, as the rest of the world looked on, the Ottoman Empire carried out one of the largest genocides in world history massacring large numbers of its minority Armenian population. The exact number killed is contested but falls somewhere between 250,000 and 1,000,000 people.8 The massive, deliberate and systematic massacres by Turkey of its ‘troublesome’ Armenian Christian subjects under the cover of war did not go unnoticed.9 As early as 24 May 1915, the Entente Powers (which together with their junior partners made up the Allied Powers)10 solemnly condemned ‘the connivance and often assistance of Ottoman authorities’ in the massacres, adding further that ‘[i]‌n view of these new crimes of Turkey against humanity and civilisation…the Allied governments announce publicly…that they will hold personally responsible…all members of the Ottoman government and those of their agents who are implicated in such massacres’.11

Evidence suggests that Turkey’s entry into World War I was substantially influenced by a desire to create an opportunity to resolve once and for all certain lingering domestic conflicts.12 The Armenian Genocide was the culmination of many decades of Armenian persecution at the hands of the Turks and heralded (p.292) a final move on the part of the Ottoman regime to rid itself, once and for all of its Armenian Christian minority. Alleging treasonable acts, separatism, and other assorted acts by the Armenians as a national minority, the Ottoman authorities ordered, ostensibly for national security reasons, the wholesale ‘relocation’ of virtually the Empire’s entire Armenian population. Despite the promises of Ottoman authorities that promulgated these emergency laws, the Armenians did not return from these deportations.13

The deportations proved to be a cover for the ensuing destruction. Ittihadist leaders14 secretly formed a unit called the Special Organization (Teşkilat-i-Mahsusa), one of whose principal purposes was to resolve the ‘Armenian Question’. The Organization Unit’s mission included deployment in remote areas of Turkey’s interior in order to ambush and destroy convoys of Armenian deportees. The elimination agenda extended to the sinking of transport ships at sea.15

(2) The Paris Peace Conference—victory in war and defeat in securing justice

When Turkey signed the Armistice on 30 October 1918, she lay at the mercy of the European Allies. British Prime Minister Winston Churchill described Turkey as being ‘under the spell of defeat, and of deserved defeat’.16 Echoing this, his Foreign Minister, George Curzon, in denouncing Turkey, noted it was ‘a culprit awaiting sentence’.17 Turkey’s culpability, in Allied eyes, involved mainly war crimes and crimes against its own citizens. The Allies, pursuant to their 1915 Declaration,18 (p.293) were determined to initiate criminal proceedings against Turkish officials suspected of complicity in the war of aggression and the Armenian Genocide. The task of considering the various possibilities was delegated to the Commission on Responsibility of the Authors of the War and on Enforcement of Penalties (the ‘Allied Commission’).19 The Commission commenced its work by taking specific cognisance of Turkish massacres of hundreds of thousands of Armenians as part of a state policy of resolving the ‘Armenian Question’.

The scale of the massacres was such that a majority of the members of the Allied Commission were of the opinion that the Hague Convention (IV) principle, which allowed for reliance upon ‘the laws of humanity’ and ‘dictates of public conscience’,20 whenever clearly defined standards and regulations to deal with grave offences were lacking, sufficed to cover the perpetration of the massacres within the rubric of ‘crimes against humanity’.21 On 5 March 1919, the Commission tabled a report defining this offence.22 The report specified the following violations against civilian populations: systematic terror; murders and massacres; dishonouring of women; confiscation of private property; pillage; seizing of goods belonging to communities, educational establishments and charities; arbitrary destruction of public and private goods; deportation and forced labour; execution of civilians under false allegations of war crimes; and violations against civilians as well as military personnel. The Commission’s final report, dated 29 March 1919, spoke of ‘the clear dictates of humanity’ which were abused ‘by the Central Powers by barbarous or illegitimate methods’ including ‘the violation of…the laws of humanity’. The report concluded that ‘all persons belonging to enemy countries…who have been guilty of offences against the laws and customs of war or the laws of humanity, are liable to criminal prosecution’.23

Beginning in January 1919, Turkish authorities, directed and often pressured by Allied authorities in Istanbul, arrested and detained scores of wartime political and military leaders. Those arrested comprised four groups: (1) the members of Ittihad’s Central Committee; (2) war-time cabinet ministers; (3) a host of provincial governors; and (4) high-ranking military officers. The suspects were transferred to a detention facility in a military prison maintained by the Turkish Defence Ministry.24 Subsequently, forty-one of the suspects were released by Turkish authorities on the basis that they were innocent. Admiral Somerset Gough-Calthorpe, (p.294) the senior British military officer involved in negotiating the terms of Turkey’s surrender (as well serving as the British High Commissioner to Turkey), informed London with regard to the released suspects that ‘there was every reason to believe, [they] were guilty of the most heinous crimes…mainly in connection with massacres’.25 On 28 May 1919, sixty-seven detainees were seized from the Istanbul military prison in a surprise swoop by the British. Twelve of the prisoners, mostly ex-ministers, were taken to the island of Mudros, the rest to Malta.26 The twelve ministers were eventually transferred to Malta, where the number of prisoners rose to 118 by August 1920.27 However the British raid and repeated diplomatic pressure served to harden the resolve of the ascendant Turkish ultra-nationalist Kemalist government28 in the face of requests to hand over the rest of the offenders in their custody for trial before an inter-Allied tribunal.29

(3) Peace Treaty of Sèvres: translucent accountability and opaque enforceability

A peace treaty was presented to Turkey on 11 May 1920, and signed four months later at Sèvres, France.30 The treaty contained several articles providing for the trial and punishment of those responsible for the Armenian Genocide. The provisions obligated Turkey to recognize the prosecution of alleged perpetrators by the Allied powers and extended the obligation to include the surrender of those identified. (p.295) Under Article 226, the Turkish government recognized ‘the right of trial and punishment by the Allied Powers, notwithstanding any proceedings or prosecution before a tribunal in Turkey’.31 Turkey was required to surrender ‘all persons accused of having committed an act in violation of the laws and customs of war, who are specified either by name or by rank, office or employment which they held under Turkish authorities’.32 Under Article 230, Turkey was further obliged to hand over to the Allied Powers the persons responsible for the massacres committed during the state of war on territory which formed part of the Turkish Empire as of 1 August 1914.33

Disagreements, feuds, and rivalries among the Allies, on the one hand, and general war-weariness on the other, was to undermine unity and weakened resolve in pursuing and holding Turkey accountable for its wartime atrocities. Consequently, a withdrawal of all occupation forces commenced as negotiations got underway for a prisoner exchange. Yielding further to the pressures of the now firmly established Kemalist government, the Allied Powers undercut (and all but discarded) the Peace Treaty of Sèvres when they presented the Treaty of Lausanne for signing.34 This treaty replaced the Peace Treaty of Sèvres and avoided the subject of war crimes and massacres—marking an ignominious triumph of impunity over international justice. The Treaty of Lausanne effectively marked the end of the pursuit of justice through supranational penal process.35 However, though the international initiative had effectively collapsed by 1921, domestic pressure and political expedience was already playing a key role in delivering a measure of justice through a series of domestic trials commencing in Turkey as early as 1919 (prior to the peace treaties).

(4) Seeking redemption? Domestic Turkish justice

On the night of 1–2 November 1918, seven top leaders of the wartime Ittihadist Party surreptitiously fled from Istanbul. Days later a Turkish parliamentarian introduced a motion for the trial before the High Court of wartime cabinet ministers.36 The motion enumerated ten charges that covered alleged misdeeds related to Turkish participation in World War I encompassing aggression, military (p.296) incompetence, political abuses, and economic crimes. In particular, two of the charges focused on the Armenian Genocide and challenged the enactment of the Temporary Laws.37 It asserted that the deportations were contrary to the spirit and letter of the Constitution meaning that associated ‘orders and instructions’ were contrary to ‘the rules of law and humanity’. Ensuing debate resulted in the establishment of a Select Parliamentary Investigation Committee. In the next five weeks, ‘the Committee conducted fourteen hearings in which it interrogated fifteen ministers, including two Seyhulislams. In addition to the revelations and confessions exacted from the ministers during these hearings, the Committee also secured a number of documents, some of which were top-secret orders and instructions regarding the massacres.’38

Parallel to the work of the Select Committee, an Administration Inquiry Commission was established on 23 November 1918 and mandated to investigate misdeeds by administrative and military officers. It was vested with broad powers pursuant to the Ottoman Code of Criminal Procedures.39 However, in large part owing to residual power of the Ittihadists, the work of the Select Parliamentary Committee was proving ineffectual. Its slow progress in investigation gave rise to angst. The Sultan’s government was faced with opposition from Ittihadists and ascendant Kemalists and was keen to placate Western powers who had deployed troops and seemed inclined to maintain a military presence in Turkey, something that galled the citizenry and stood to compromise Turkey’s sovereignty and his authority.40 Bowing to political pressure and a restive public, the Committee was dissolved by Sultan Mehmed VI (Head of State). The main focus of the prosecutorial case now shifted singularly to the Administration Inquiry Commission. It proved to be the main vehicle that would collect the relevant evidence to facilitate prosecutions. The Commission compiled dossiers on the suspects and concluded with a recommendation that evidence was sufficient to warrant the commencement of criminal proceedings against them. In early 1919, the Sultan authorized a law to establish an Extraordinary Court Martial to try the alleged perpetrators noting (p.297) that the offences in question amounted to ‘crimes against humanity’. Defendants were classified as either principal co-perpetrators or accessories.41 The main trial was based at the Military Court in Istanbul; however, there were six other regional courts operating in parallel. The chapter now turns to consider the conduct of the trials themselves.

(5) Seeking a measure of justice: militarism and genocide on trial

(a) The key trials

The key indictment focused on leaders of the wartime ruling Ittihad Party. There were three principal charges: conspiracy, premeditation and intent, and murder and personal responsibility. The Prosecutor-General averred that the Party’s objectives and methods were criminal citing secret memoranda emanating from its Central Committee on the question of the entry into war as part of the solution of the ‘Armenian Question’. Included in the charge were officials of the Defence Ministry’s War Office and the Interior Ministry.42 The defendants were accused of having deliberately engineered Turkey’s entry into the war ‘by recourse to a number of vile tricks and deceitful means’ and of using ‘this vantage ground to carry out their secret intentions—massacre of the Armenians’.43

On the question of premeditation and intent, the Indictment alleged that ‘[t]‌he massacre and destruction of the Armenians were the result of decisions by the Central Committee of Ittihad’.44 The Indictment noted that the ‘release [of] gangs of convicts from the prisons’, ostensibly for combat duty, was a cover as they were really destined for ‘massacre’ duties in the Special Organization. This Organization was essentially a death squad. Pre-empting the act of state defence, the Indictment elaborated that its basis was personal responsibility of the defendants as members of (p.298) the Party’s Central Committee.45 In the conviction and sentencing, the Court relied on Articles 45, 55, and 170 of the Ottoman Penal Code. The Court found the defendants guilty of orchestrating the entry of Turkey into World War I and of committing the genocide of the Armenians. The defendants were condemned to death in absentia.

(b) The Yozgat trials

The Yozgat trial series, commencing in early 1919, featured senior administrative officials and regional army commanders.46 The principal charge was the deportation and subsequent massacre of the region’s Armenians. The officials were complicit in the deportation of an astonishing ninety-five per cent of the region’s Armenian population, almost all of whom could not subsequently be accounted for or traced. The Yozgat verdict declared, ‘there can be no doubt and no hesitation’ about the real purpose behind the deportations.47 The Court rejected the Attorney General’s proposal to rely on Article 56 of the Ottoman Penal Code.48 This would have relegated the atrocities to domestic law violations in the course of civil upheaval thus providing a measure of legitimacy to the relocation programme. The Court instead relied on Articles 45 and 170 of the Ottoman Penal Code and Article 171 of the Military Code. The defendants were sentenced to death.

(c) The Trabzon trials

On trial were seven defendants, five present and two absent. The defendants ranged from administrators to police and military officers. The Armenian deportees, the Court found, were handed over to the Special Organization by the War Office as part of its central action plan to solve the ‘Armenian Question’. Many Armenian deportees in this particular case met their fate through the sinking of transport ships in the Black Sea. It also found that the administrative officials colluded in plundering and profiteering from the property confiscated from deportees. The judgment averred that the events in question were contrary to provisions of the Ottoman Civil Code and additionally also breached Islamic tenets. It noted that from a legal and moral perspective all Ottoman citizens had the right ‘to the protection of their honour, lives and properties, without discrimination, by the officials of the state, that protection being a matter of duty’.49 The Court found five of the defendants guilty (two in absentia) and acquitted another two.

(p.299) (d) The Ittihadist and wartime cabinet ministers’ trials

These two trial series specifically targeted the officials at the apex of both the Ittihadist Party and government. One focused on the senior office bearers of the Ittihadist Party and the second targeted a host of senior wartime ministers and senior military commanders. These two series of trials together tried over thirty-five defendants. The bulk of these defendants (particularly in the wartime cabinet ministers’ trials) were tried in absentia. Charges included responsibility for Turkey’s entry into the war and the alleged role of the accused as principal architects responsible for sanctioning and implementing a national drive to atrocity. The series of trials dealing with the senior party officials deemed them to have been accessories and therefore imposed lighter sentences. The series dealing with the ministers and military officers by virtue of their authority and positions of power prosecuted them as principals. Several death sentences and lengthy prison sentences were handed down.

These were clearly important trials of some consequence. Why, then, have these important trials languished in archival records? Several general reasons account for this unfortunate reality.

First, with the end of World War I, the Ottoman Empire had collapsed and the focus externally (among the Allies) and internally (in Turkey)—crowding out wider national and international knowledge of the trials underway—was on the escalating domestic Turkish insurgency. The Allies were finding it difficult to read the geo-political landscape and were politically uncertain as to their role in reconstituting a former empire that occupied a pivotal physical and socio-political position. At the same time, internally, leading and ascendant national figures were engaged in settling political scores and/or consolidating their power and influence. Second, when the Republic of Turkey emerged from the ruins of the Ottoman Empire after the triumph of the Kemalists over the ancien régime, the government’s focus was firmly on consolidating its power and crafting a new national identity. This meant that the Armenian Genocide was now wrapped up in geo-politics, diplomatic posturing and war revisionism. The aim was to push the dark gloom of the atrocities from both the national debate and international focus. Third, and paradoxically, the subsequent focus on the genocide (the second most studied after the Holocaust), in the face of an unrepentant Turkish Republic that sought to airbrush the massacres, stifled widespread studies and dissemination of the very trials that had delivered a measure of justice. The trials have in essence been pushed to the periphery by the success in unearthing the political and practical facts of the massacres and hence have been seen more through the lens of internecine politics and not nearly enough as an important event that delivered a measure of historical record and justice. In sum the continued sensitivity by Turkey to the Armenian genocide has a threefold effect—Turkey focuses on rebuffing accounts of the genocide, other states focus on proving it did happen and disseminating records, with the Turkish national war crimes trails remaining caught in between.

In the decades after the conclusion of the Turkish national trials, no state undertook large scale domestic trials of its nationals for international crimes. It was to be (p.300) seven decades before Ethiopia undertook trials on such a scale. In the meantime the prosecution was largely left to the limited efforts by international tribunals (Nuremberg and Tokyo at the end of World War II and attendant national trials under an international law mandate) and in the early 1990s the work of the ad hoc international criminal tribunals for Yugoslavia and Rwanda. Finally, in 1994 after close to three decades of brutal Communist rule in Ethiopia, the dark years of the Red Terror (a systematic, bureaucratic system of murder and extermination) were subjected to a judicial intervention aimed at dealing with thousands of cases of murder, torture and imprisonment of ‘counter-revolutionaries’. The trials—in which some 2000 people were arraigned—lasted several years. It constituted the most extensive judgment of human rights violations since the trials at the end of the World War II. This chapter now turns to review the large-scale Ethiopian domestic trials that sought to deliver justice and a measure of catharsis to a nation broken by brutality and rivers of blood.

(III) Ethiopia’s Red Terror Campaign and the Search for Justice

(1) ‘Draining the sea to catch the fish’: a regime’s quest to ‘eradicate’ all opposition

In the early 1970s severe famine beset parts of Ethiopia. This was to be the trigger for years of grievances related to socio-economic and political exclusion. On one hand, the peasantry was embittered over the feudal system of land ownership. The military was demanding higher wages. And a hungry citizenry saw already poor living conditions plummet further as the economy nosedived and inflation soared. By 1974 the imperial government seemed unresponsive to the economic and political needs of its people. It was on the back of acute economic poverty and political suppression that mass uprisings erupted against the rule of Emperor Haile Selassie I. The Provisional Military Administration Council of Ethiopia (the Derg)50 was formed by officers of the Ethiopian Army. The Derg, while initially an apolitical body, seized the opportunity presented by an enfeebled aristocratic order and adopted a virulent form of socialism. The Derg seized power, suspended the Constitution and established a military government.

The first victims of the Derg were figures who represented the face of the old ruling class. It therefore summarily executed sixty officials of the former imperial government.51 This event marked the beginning of seventeen years of state-sponsored terror and violence.52 After eliminating the ‘aristocrats’ and ‘the land owners’, the Derg turned its attentions to ‘anti-revolutionaries’ and ‘anti-unity’ elements. Even (p.301) as the Derg was consolidating itself, an internecine power struggle was in the making within its ranks. In the first three years of its rule it had two leaders: Generals Amman Andom and Teferi Banti. It was however a lower ranking military officer—Colonel Mengistu Haile Mariam—who possessed the greatest influence and power within the Derg. In 1977, Colonel Mengistu finally assumed formal power after outmanoeuvring his opponents.

Mengistu quickly moved to cement his grip on power by focusing on civilian opposition elements as well as any other entities perceived as enemies of the revolution. To assist in the government’s ‘anti-revolutionary’ campaign, the Mengistu regime issued arms to members of the Urban Dweller’s Associations (‘kebeles’) whose mandate was to kill any individuals opposed to the regime or lacking zeal in professing the government’s Marxist–Leninist ideology.53 Hundreds of suspected political opponents were murdered and their bodies dumped in the streets as a warning to others. The purges intensified as the unbridled brutality caused segments of the population to crystallize into diehard opposition. An Amnesty International report estimated that the total number of persons killed by the end of the initial round of the Red Terror campaign (1977–81) ranged from 150,000 to 200,000.54 This was to be symptomatic of the rest of Mengistu’s rule.

In the early 1980s, the Derg ratcheted up its bloody campaign by ‘manufacturing’ hunger as part of its counter-insurgency strategy in regions that opposed its rule.55 Commencing in 1983 the Ethiopian government took advantage of a pre-existing severe drought to direct starvation against insurgent populations in its northern provinces. In addition to this, the military pursued a murderous campaign targeting rebel strongholds: bombing markets, placing restrictions on movement and trade, forcibly relocating populations and actively interfering with international humanitarian relief efforts. It is estimated that the artificial famine and forced relocations ultimately killed 400,000 people, adding to the Red Terror campaign toll of the late 1970s.56 Overall during the rule of Mengistu some 1.5 million Ethiopians are estimated to have been killed (by famine or force), disappeared, or injured (many maimed).

By l989, the main nodes of the Ethiopian insurgency against the Mengistu regime had coalesced as the Ethiopian People’s Revolutionary Democratic Front (EPRDF).57 Progressively, the EPRDF secured military victories in the (p.302) countryside and gradually prevailed over government troops. By early 1991 it had encircled Addis Abba. In a scene similar to that which occurred in Turkey, Mengistu fled the country along with leading members of the Derg. On 8 May 1991, the Mengistu regime officially fell. The triumphant EPRDF began arresting and detaining individuals suspected of violating human rights during the Derg era. In what was to be a landmark move to accountability, the following year, the transitional government established the Special Prosecutor’s Office (SPO) with a mandate to investigate and prosecute the massive human rights violations of the Derg era.58

(2) Seeking catharsis: the Ethiopian ‘Red Terror’ domestic trials

The SPO faced the dilemma of whether domestic or international law should apply in any prosecutions of Derg perpetrators. Under the Penal Code of the Empire of Ethiopia of 1957,59 most of the detainees could be charged with common crimes such as homicide, wilful injury, assault, coercion, illegal restraints, abuse of power, use of improper methods, and conspiracy if the actions were viewed as the result of internal disturbances. However, the scale of the atrocities was such that they amounted to widespread and systematic human rights violations which amounted to crimes under international law which were incidentally also covered by the Ethiopian Penal Code. The Penal Code, in Articles 281–286, enshrined offences against the state or against national or international interests that embedded international norms pertaining to genocide, crimes against humanity and war crimes.60 The defendants were classified into three main categories by the SPO: policy makers, field commanders, and material offenders.61 The charges brought against the defendants included genocide and crimes against humanity, torture, murder, unlawful detention, rape, forced disappearances, abuse of power, and war crimes. The main charge against the top officials of the Derg regime was the crime of genocide in violation of Article 281 of the 1957 Ethiopian Penal Code.62

In 1994, the SPO filed the first charges against seventy-three Derg members. Mengistu and seventy-two of the Derg’s leading officials were among the indictees. The lengthy charge sheet detailed more than 200 acts of genocide and crimes against humanity involving tens of thousands of victims. The trial got off to a wobbly start owing to scarcity of resources—legal, technical and infrastructural. Despite these early setbacks, the SPO pushed ahead with an ambitious (p.303) investigation mandate. Three years later, after intensive investigation, the SPO filed further charges against a total of 5,198 high and middle ranking public and military officials of the former government. The Special Prosecutor requested that trial courts take into account various aggravating circumstances.63 It was with this in mind and in accordance with the terms of Articles 84 and 85 of the Ethiopian Criminal Code that the Court would eventually hand down very stiff sentences.

The trials of leading government and military personnel occurred at the Ethiopian Federal High Court. There were numerous other parallel trials throughout the country both at the Federal High Court divisions and the supreme courts of the regional states. The decision to disperse the trials was made both for the sake of convenience and in order to try some of the accused at locations where the crimes had been committed.64 This dynamic was much like the Turkish trials which (as mentioned above) were held in a series of trials in regional courts dispersed across several provinces.

The main trial was naturally that of Mengistu and his top lieutenants.65 The charge sheet and evidence list comprised more than 5,000 pages. The evidence against Mengistu included signed execution orders, videos of torture sessions and personal testimonies. Of the seventy-three accused, fourteen had died and only thirty-three were present in court. Mengistu was among twenty-five defendants tried in absentia for their role in the killing of thousands of people during the brutal rule of the Derg. On 12 December 2006, the trial against Mengistu and his co-accused finally concluded after more than a decade. In January 2007, the Ethiopian Federal High Court convicted him and his co-accused of genocide, crimes against humanity and wilful bodily injury. He was sentenced to life in prison with many of his co-accused receiving the same sentence for, among other things, direct responsibility for the deaths of 2,000 people and the torture of at least 2,400. Following an appeal by the prosecution on 26 May 2008, Mengistu’s previous sentence of life imprisonment was substituted with a death sentence by Ethiopia’s High Court. Eighteen of his co-defendants also saw their life sentences substituted for the death penalty. In the same year that Mengistu’s life imprisonment was revised upwards, nineteen other persons were convicted on 5 April 2008.

(p.304) Ultimately, a total of 5,119 persons were tried for involvement in the terror campaign by the Derg government with crimes ranging from genocide and war crimes to crimes against humanity and other serious human rights violations with 3,583 convicted and sentenced to death, life in prison, and a range of lengthy prison sentences.66 The scale and the nature of the trials was unprecedented not only in Africa but around the globe.

As with the Turkish national trials, the puzzle is why the largest trials of international crimes since World War II remain at the periphery of history. Several reasons can be ventured. Surprisingly, despite several decades and evident differences (predominantly time and geographical location), in general terms, these mirror those of the Turkish national trials with geo-political considerations, rebirth of nationalism, the residual power of ousted elites and a reassertion of territorial sovereignty as a fulcrum. To begin with, the trials were held in the shadow of Ethiopia/Eritrea war tensions. Despite Eritrea formally becoming independent in 1993, the extremely volatile relations between the two neighbours (before, then and thereafter) remained a headache for the continent and the world at large. Second in the early 1990s a number of dictators faced the challenge of multi-party politics. Mengistu Haile Mariam had belonged to the ‘African dictators club’ and many of his cronies still in power felt aggrieved by the fall from power of one of their own and, no doubt, the prospect of the legal consequences. The incoming government was well aware that the deposed leader still had very powerful friends and they did not wish to antagonize them. Hence in an act of crude diplomacy, the new government was keen to downplay the scale and remarkable achievements of the trials. As ensuing years would show, this stance was to suit Meles Zenawi, a liberator who was to tinge his rule with some of the authoritarian excess of his predecessor, Mengistu. Thus the trials were wrapped in the opaque prism of politics and national healing (transitional justice) for years and only in the twenty-first century are they gaining the publicity they deserve.

(IV) Conclusion

The prosecution of the Turkish leaders implicated in the commission of international crimes before the Turkish Courts-Martial, which resulted in a series of indictments, verdicts and sentences, was of extraordinary significance. It was to be another eight decades before another nation—Ethiopia—undertook domestic trials targeting international crimes on the same scale. While both domestic trials were driven by political expedience, the most important thing was that they (p.305) delivered a measure of justice and importantly co-opted international law in the implementation of domestic penal codes. Though imperfect, they signified recognition by national governments that justice through trial was essential to address widespread and systematic breaches of international norms. Importantly, it was a historic ‘vanguard’ in the blending of the norms and doctrines of international criminal law with domestic penal codes.

Notes:

(1) See generally Joseph Rikhof, ‘Fewer Places to Hide? The Impact of Domestic War Crimes Prosecutions on International Impunity’ (2009) 20 Criminal Law Forum 1.

(2) Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea (6 June 2003); Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (as amended 27 October 2004), Chapter XIX.

(3) This was established by an Agreement between the United Nations and the Government of Sierra Leone pursuant to Security Council resolution 1315 (2000) of 14 August 2000. The statute of the Special Court for Sierra Leone available at <http://www.sc-sl.org/DOCUMENTS/tabid/176/Default.aspx> accessed 10 January 2013.

(4) Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone (16 January 2002); United Nations Transitional Administration in East Timor, Regulation No. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences (6 June 2000).

(5) UN Security Resolution 1483 issued post Operation Iraqi Freedom which toppled the Saddam Hussein regime among other things had called for the United Nations to play a vital role in reconstruction efforts and the development of institutions in Iraq as well the need for accountability for the crimes committed by the previous Iraqi regime. The Court was set up by a specific Statute issued under the Coalition Provisional Authority. The Statute is available at <http://www.cpa-raq.org/human_rights/Statute.htm> accessed 12 January 2013.

(6) On 2 November 1918, a Parliamentarian submitted a motion to institute hearings in the Ottoman Chamber of Deputies to establish the responsibility of the members of the two wartime Cabinets framing the offences under the violations of ‘the rules of law and humanity’. Similar sentiments were echoed in early 1919 by Sultan Mehmed VI as head of state who in authorising a new law for court-martialling alleged perpetrators denounced the offences in question as ‘crimes against humanity’. See eg Vahakn N Dadrian, ‘Genocide as a Problem of National and International Law: The World War I Armenian Case and Its Contemporary Legal Ramifications’ (1989) 14 Yale Journal of International Law 221, 293–94.

(7) ‘Derg’ means ‘council’ or ‘committee’ in ancient Ethiopian language. This was the name given to the Coordinating Committee of the Armed Forces comprised of 120 commissioned and non-commissioned low-rank officers of the air force, police force and the territorial army which was later to seize power in the disarray spawned in the aftermath of the collapse of the reign of Emperor Haile Selassie I in the face of a people’s uprising that culminated in a revolution. The Derg would become synonymous with the communist military Junta that ruled Ethiopia into the early 1990s.

(8) See eg David M Lang, Armenia: Cradle of Civilization (Allen & Unwin, 2nd ed, 1978) 289; Vincent H P Caillard, ‘Turkey’, The Encyclopædia Britannica, (Encyclopædia Britannica,11th ed, 1911) Vol 27, 426; Glenn E Curtis (ed.), Armenia, Azerbaijan, And Georgia: Country Studies (1995) 14–15, 35; Patrick Balfour, Baron Kinross Ottoman Centuries: The Rise and Fall of the Turkish Empire (William Morrow, 1977) 554, 606; Bernard Lewis, The Emergence of Modern Turkey (Oxford University Press, 2nd ed, 1968) 356.

(9) Vice-Field Marshal Pomiankowski, the Austrian Military Plenipotentiary attached to the Ottoman General Headquarters during the War, alluded in his memoirs to the unabating antagonism between the Muslim and the non-Muslim nationalities. Referring to ‘the spontaneous utterances of many intelligent Turks’, Pomiankowski conveyed their view that these conquered people ought to have been forcibly converted into Muslims, or ‘ought to have been exterminated (ausrotten) long ago’: Joseph Pomiankowski, Der Zusammenbruch Des Ottamanischen Reiches; Erinnerungen an die Turkei aus der Zeit des Weitkrieges (Zurich: Amalthea-Verlag, 1928), 162.

(10) These were the countries led by the United Kingdom, France and Russia that had waged war against the Central Powers that revolved around the aggression of German and the then Austro-Hungarian Empire, Ottoman Empire and the Kingdom of Bulgaria. The junior partners of the Entente powers were Belgium, Serbia, Italy, Japan, Greece and Romania.

(11) ‘France, Great Britain and Russia Joint Declaration of 24 May 1915’, Armenian National Institute [website], <http://www.armenian-genocide.org/Affirmation.160/current_category.7/affirmation_detail.html> (accessed 1 March 2013).

(12) Mehmed Talat the then Turkish Interior Minister is reported to have expressed this intent to an attache at the German Embassy in Istanbul in charge of the Armenian desk. Talat later Grand Vizier asserted that Turkey was ‘intent on taking advantage of the war in order to thoroughly liquidate its internal foes, i.e, the indigenous Christians, without being thereby disturbed by foreign intervention.’ German Ambassador Wangenheim’s 17 June 1915 report to his Chancellor in Berlin. German Foreign Ministry Archives, A A Turkei 183/37, A19744.

(13) In a Memorandum dated 26 May 1915, the Interior Minister requested from the Grand Vizier the enactment through the Cabinet of a special law authorising deportations. For the English text of the law, see R Hovannisian, Armenia on the Road to Independence 1918 (University of California Press, 1967) 51.

(14) The virulently expansionist movement that had ascended to power in the run up to World War I. Among the objectives and ambitions of the wartime Ittihadist Government was restoring the waning grandeur of the Ottoman Empire by eliminating threats undermining it as well ensuring that it firmly incorporated all Turkic peoples.

(15) As Winston Churchill wrote:

In 1915 the Turkish government began and ruthlessly carried out the infamous general massacre and deportation of Armenians in Asia Minor…the clearance of the race from Asia Minor was about as complete as such an act, on a scale so great, could well be. There is no reasonable doubt that this crime was planned and executed for political reasons. The opportunity presented itself for clearing Turkish soil of a Christian race opposed to all Turkish ambitions, cherishing national ambitions that could be satisfied only at the expense of Turkey, and planted geographically between Turkish and Caucasian Moslems.

Winston Churchill, The World Crisis: The Aftermath (Thornton Butterworth, 1929) 405.

(16) Ibid 367.

(17) E L Woodward and R Butler (eds), Documents on British Foreign Policy 1919–1939 (HMSO, First Series, 1952) Vol 4 (Statement of the then British Foreign Minister George Curzon, 4 July 1919), 661.

(18) Declaration of France, Great Britain and Russia, 24 May 1915, quoted in Egon Schwelb, ‘Crimes Against Humanity’ (1946) 23 British Year Book of International Law, 178, 181.

(19) The Commission was comprised of two members from each of the five Great Powers: the United States of America, the British Empire, France, Italy, and Japan. In additional the Commission co-opted five representatives—one each from Belgium, Greece, Poland, Romania, and Serbia—the Associated Powers that together with the Entente Powers made up the Allied Power alliance. Carnegie Endowment for International Peace, The Treaties of Peace 1919-1923 (Carnegie Endowment for International Peace, 1924) 3.

(20) Convention Respecting the Laws and Customs of War on Land, 18 October, 1907, Preamble, 36 Stat 2277, 2779–80, 1 Bevans 631, 632.

(21) Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, ‘Report Presented to the Preliminary Peace Conference, 29 March 1919’ (1920) 14 American Journal of International Law 95.

(22) Ibid.

(23) Ibid.

(24) Of these, twenty-six were ordered released by the Court Martial itself with the assertion, ‘There is no case against them.’ Spectateur D’orient, (Istanbul) 21 May 1919.

(25) British Foreign Office Papers, FO 371/4174/88761 (folio 9) (30 May 1919) (Foreign Office (FO) Archives. Public Record Office, London).

(26) The British Foreign Office Near East specialist declared, ‘There is probably not one of these prisoners who does not deserve a long term of imprisonment if not capital punishment.’ British Foreign Office Papers, FO 371/6509/E8745 (folios 23–24); See also Vahakn N Dadrian, ‘Genocide as a Problem of National and International Law: The World War I Armenian Case and Its Contemporary Legal Ramifications’ (1989) 14 Yale Journal of International Law 221, 286.

(27) Referring to the Malta exiles, a British Foreign Office Near East specialist declared: ‘There is probably not one of these prisoners who does not deserve a long term of imprisonment if not capital punishment.’ British Foreign Office Papers, FO 371/6509/E8745 (folios 23-24).

(28) The Kemalists were trying to mitigate the consequences of the total collapse of the Ottoman Empire subsequent to the World War I military defeat by establishing a secular Turkish republic bereft of the expansionist, ambitions of the wartime Ittihadist Government which sought to not only prevent the collapse of the Ottoman Empire but to ensure that it firmly incorporated all Turkic peoples.

(29) Turkey asserted that such a surrender of Turkish subjects contradicted the sovereign rights of the Ottoman Empire as recognised by England in the Armistice Agreement. In the words of the Turkish Foreign Minister:

compliance with the demand for surrender by the Turkish Government would be in direct contradiction with its sovereign rights in view of the fact that by international law each State has [the] right to try its subjects for crimes or misdemeanours committed in its own territory by its own tribunals. Moreover, His Britannic Majesty having by conclusion of an armistice with the Ottoman Empire recognised [the] latter as a de facto and de jure sovereign State, it is incontestably evident that the Imperial Government possesses all the prerogatives for freely exercising [the] principles inherent in its sovereignty.

British Foreign Office Papers, FO 608/244/3749 (folio 315) (Rear Admiral Richard Webb’s 19 February 1919 telegram to London). Webb was then also serving as the British Assistant High Commissioner to Turkey.

(30) Peace Treaty of Sevres, 10 August 1920, reprinted in ‘Treaty of Peace Between the Allied Powers and Turkey’ (1921) 15 American Journal of International Law 179 (Supp).

(31) Peace Treaty of Sevres, 10 August 1920, reprinted in ‘Treaty of Peace Between the Allied Powers and Turkey’ (1921) 15 American Journal of International Law 179 (Supp); see also James F Willis, Prologue To Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War (Greenwood Press, 1982) 180.

(32) Peace Treaty of Sevres, 10 August 1920, reprinted in ‘Treaty of Peace Between the Allied Powers and Turkey’, 15 American Journal of International Law 179 (Supp 1921).

(33) It was further stipulated that ‘[t]‌he Allied powers reserve to themselves the right to designate the tribunal, which shall try the persons so accused, and the Turkish Government undertakes to recognise such tribunal.’ Ibid 181.

(34) Treaty of Lausanne, 28 LNTS 12 reprinted in (1924) 18 American Journal of International Law 1 (Supp).

(35) Vahakn N Dadrian, ‘Genocide as a Problem of National and International Law: The World War I Armenian Case and Its Contemporary Legal Ramifications’ (1989) 14 Yale Journal of International Law 221, 309–10.

(36) Johannes Lepsius, Deutschland und Armenien, 1914-1918: Sammlung Diplomatischer Aktenstucke [Germany and Armenia, 1914–1918: A Collection of Diplomatic Documents] (Tempelverlag, 1919) 111.

(37) In a Memorandum dated 26 May 1915, the Interior Minister had requested from the Grand Vezir the enactment through the Cabinet of a special law authorizing deportations. The Cabinet acted on 30 May through promulgation of the Temporary Law of Deportation. Pursuant to this law, alleging treasonable acts, separatism, and other assorted acts by the Armenians as a national minority, the Ottoman authorities ordered, for national security reasons, the wholesale deportation of Armenians, a measure that was later extended to virtually all of the Empire’s Armenian population. It is to be noted that though Armenians were the main victims (in size and numbers), the Greek and Assyrian Christian groups also suffered. See, eg, R. Hovannisian, Armenia on The Road to Independence, 1918 (Berkeley, CA: University of California Press, 1967), 51.

(38) Vahakn N Dadrian, ‘Genocide as a Problem of National and International Law: The World War I Armenian Case and Its Contemporary Legal Ramifications’ (1989) 14 Yale Journal of International Law, 221, 294.

(39) Its mandate was premised on paragraphs 47, 75 and 87. J.A. Bucknill and H.A.S. Utidjian (translation), The Imperial Ottoman Penal Code: A Translation (Oxford: Oxford University Press, 1913).

(40) Ittihadism should not be confused with Kemalism. The former was bent on re-establishing itself in post-war Turkey without relinquishing its pan-Islamic ambitions. The latter was trying to mitigate the disastrous consequences of a military defeat by confronting the victorious allies as a provincial insurgency, unless the allies were willing to recognize the sovereign rights of a new Turkish republic, bereft of expansionist ambitions.

(41) The criminal categories included:

  1. (1) . the central instigators of crimes against Armenians;

  2. (2) . those who worked under the auspices of those mainly responsible, such as influential members of the Central Committee of the Committee of Union and Progress (The Iitihadist Party);

  3. (3) . members of clandestine organizations, such as the Special Organization, along with high-ranking military officials and criminals set free from prison;

  4. (4) . those who had enriched themselves or otherwise profited from these crimes.

Raymond Kevorkian, The Extermination of Ottoman Armenians by the Young Turk Regime (1915–16), Online Encyclopedia of Mass Violence, [online] 3 June 2008, available at <http://www.massviolence.org/The-Extermination-of-Ottoman-Armenians-by-the-Young-Turk-Regime>, accessed 12 February 2011.

(42) It was the War Office that had managed the Special Organization, whose key task was dealing with the ‘Armenian question’. It was noted that: ‘The evidence gathered yields the picture of a party whose moral personality is mired in an unending chain of bloodthirstiness, plunder and abuses’ (Vahakn N. Dadrian, ‘Genocide as a Problem of National and International Law: The World War I Armenian Case and Its Contemporary Legal Ramifications’ (1989) 14 Yale Journal of International Law, 221, 309–10).

(43) Takvimi Vekayi, No. 3540 at 4. (Takvimi Vekayi was the Official Newspaper of the Ottoman Empire. Commencing publication in 1831, it would go on to occupy a special place and the main source of government news).

(44) Takvimi Vekayi, No. 3540 at 8.

(45) J A Bucknill and H A S Utidjian (trans), The Imperial Ottoman Penal Code; A Translation (Oxford University Press, 1913).

(46) Vahakhn N Dadrian, ‘The Turkish Military Tribunal’s Prosecution of the Author’s of the Armenian Genocide: Four Major Court-Martial Series’ (1997) 11 Holocaust & Genocide Studies 28, 33.

(47) Vahakhn N Dadrian, ‘The Turkish Military Tribunal’s Prosecution of the Author’s of the Armenian Genocide: Four Major Court-Martial Series’ (1997) 11 Holocaust & Genocide Studies 28, 339.

(48) J A Bucknill and H A S Utidjian (trans), The Imperial Ottoman Penal Code; A Translation (Oxford University Press, 1913).

(49) See e.g. Vahakn N Dadrian, ‘Genocide as a Problem of National and International Law: The World War I Armenian Case and Its Contemporary Legal Ramifications’ (1989) 14 Yale Journal of International Law 221,

(50) Please refer to footnote 7 above which elaborates on this.

(51) T S Engelschin ‘Prosecutions Of War Crimes And Violations Of Human Rights In Ethiopia’, (1994) 8 Yearbook of African Law 43.

(52) Girmachew A Aneme, ‘Apology And Trials: The Case Of The Red Terror Trials In Ethiopia’ (2006) 6 African Human Rights Law Journal 64, 65.

(53) See generally Julie V Mayfield, ‘The Prosecution of War Crimes and Respect for Human Rights: Ethiopia’s Balancing Act’, (1995) 9 Emory International Law Review 553, 559; Edmund J Keller, Revolutionary Ethiopia (Indiana University Press, 1988).

(54) See generally Julie V Mayfield, ‘The Prosecution of War Crimes and Respect for Human Rights: Ethiopia’s Balancing Act’, (1995) 9 Emory International Law Review 553, 566.

(55) See eg Africa Watch, Evil Days: Thirty Years of War and Famine in Ethiopia (1991) 139 available at <http://www.hrw.org/node/78194> accessed 6 May 2013.

(56) See eg Africa Watch, Evil Days: Thirty Years of War and Famine in Ethiopia (1991) 139 available at <http://www.hrw.org/node/78194> accessed 6 May 2013.

(57) The EPRDF was made up of the Tigrayan People's Liberation Front, the Amhara National Democratic, Movement, the Oromo Peoples Democratic Organization, and the Ethiopian Democratic Officers.

(58) Proclamation 40/92, the Proclamation for the Establishment of the Special Prosecutor’s Office, 1992.

(59) 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.

(60) 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.

(61) See generally ‘Apology and Trials: The Case of the Red Terror Trials in Ethiopia’, (2006) 6 African Human Rights Law Journal 64, 76.

(62) 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, Article 281.

(63) These aggravating circumstances, amongst others, were:

  1. (1) . the accused intended, planned, instigated and assisted in the execution of the plan using the country’s resources, institutions and government power;

  2. (2) . The victims were in the custody of the institutions run by the accused;

  3. (3) . The commission of the crimes under such circumstances shows that the accused were willing and had the resolve to commit the crimes;

Penal Code of the Empire of Ethiopia of 1957, Article 281 (Negarit Gazeta, Extraordinary Issue No 1 of 1957), Articles 84 and 85.

(64) Articles 78(2) and 80(2) of the Constitution of the Federal Democratic Republic of Ethiopia.

(65) Special Prosecutor v. Colonel Mengistu Hailamariam et al., File No. 1/87, Ethiopian Federal High Court.

(66) Firew Tiba, ‘The Trial of Mengistu and Other Derg Members for Genocide, Torture and Summary Executions in Ethiopia’ in Chacha Murungu and Japhet Biegon (eds), Prosecuting International Crimes in Africa (Pretoria University Law Press, 2011) 163, 168; Luelseged Degu, Report from Special Prosecutor’s Office of Ethiopia: Half-way Transitional Justice (11 February 2010) available at <http://es.ictj.org/en/news/coverage/article/3447.html> accessed 5 February 2013.