1 5 Mass Trials and Modes of Criminal Responsibility for International Crimes: Th e Case of Ethiopia Firew Kebede Tiba * (I) Introduction Ethiopia responded to the legacy of mass atrocities committed during the early years (1974–1980) of the communist rule of Colonel Mengistu Hailemariam and his associates by instituting a project of mass prosecution. Th e process reached a climax on 26 May 2008 with the Federal Supreme Court decision in the case of Special Prosecutor v Colonel Mengistu Hailemariam & Others , which upheld the Special Prosecutor’s argument that the life sentence imposed by the Federal High Court was inadequate. Th e convictions included the crimes of genocide, aggra- vated homicide, torture, illegal imprisonment and abuse of power. Th e Court did not elucidate or advance an appropriate theory concerning the mode of crimi- nal responsibility required, even though the main charges generally relied on the assumption that the accused participated in the alleged crimes as co-perpetrators. Instead, the Court merely asserted that their culpability arose from being members of the Provisional Military Administration Council (Derg) and from the fact that they owned or adopted its decisions as their own without protesting for seventeen years. 1 Although the judicial process has been overtaken by a political decision to com- mute the death sentences to life in prison with parole, the Mengistu trial remains signifi cant on many levels. 2 Fundamentally, the trial represents the fi rst ever nationally conceived and implemented accountability program in Sub-Saharan * Lecturer in Law at Deakin University, Melbourne. 1 Special Prosecutor v Colonel Mengitsu Hailemariam & Others , Judgment, Criminal File No. 30181, Federal Supreme Court, 26 May 2008. 2 At the prompting of religious leaders, the Head of State President Girma Woldegiorgis exercised his constitutional prerogative on 1 June 2011 and commuted the death sentence imposed on twenty-three former Derg offi cials convicted of genocide and other crimes. Most of them are now released on parole having served the maximum prison term possible for life sentence under Ethiopian law. The Hidden Histories of War Crimes Trials. Kevin Jon Heller and Gerry Simpson. © Oxford University Press 2013. Published 2013 by Oxford University Press. 115_9780199671144c15.indd5_9780199671144c15.indd 330606 110/3/20130/3/2013 44:16:55:16:55 PPMM Mass Trials and Modes of Criminal Responsibility for International Crimes 307 Africa in the wake of a large-scale atrocity. Th e magnitude of the trial alone, with all its imperfections, entitles the process to a special place in the history of national accountability projects. Unfortunately, for various reasons, the story of the trial has not been told adequately. Some of the reasons for this will be highlighted in this chapter. 3 Needless to say, organizing a large-scale criminal trial is a challenging task any- where in the world. Th e diffi culty is exponentially multiplied in a developing coun- try like Ethiopia where the legal system is chronically under-resourced. Such trials also risk the possibility of collective condemnation or the accused being found guilty by association. In this case alone, 106 accused were joined together in a single criminal trial. By contrast, the International Military Tribunal at Nuremberg (IMT) tried twenty-four of the most wanted Nazi leaders, while the maximum number of accused joined in a single trial at the International Criminal Tribunal for the former Yugoslavia (ICTY) has been seven. Th is demonstrates how unwieldy the Ethiopian counterpart has been when compared to similar large-scale trials. Th is chapter seeks to challenge the approach taken in the decisions of the Ethiopian federal courts in light of modes of criminal responsibility under inter- national criminal law. 4 Specifi cally, it will examine the objections raised by the accused about their convictions solely on account of them being members of the Derg. Th e chapter argues that courts failed to draw on international criminal law jurisprudence (such as the concept of joint criminal enterprise or alternative doctrines) in fi nding the defendants guilty. Th e muddled conceptual approach to modes of criminal responsibility in these trials has arguably undermined the qual- ity of the decision and its signifi cance for international criminal law. Furthermore, the Court’s refusal to order separate trials has also made it diffi cult for the accused to mount a proper defence against the charges. (II) Th e Ethiopian Red Terror Th e full scale of atrocities committed in Ethiopia following the overthrow of the imperial regime in 1974 has yet to be fully told. Th e 1974 revolution was 3 Th roughout this chapter, reference is made to the Mengistu trial unless the context suggests that reference is being made to the entire prosecution programme, which encompassed a number of separate trials that were conducted in other parts of the country by regional courts. Unless specifi ed otherwise, all court decisions quoted in this chapter are those of the Federal High and Supreme Courts in the Mengistu trial. Unfortunately, the non-existence of accessible documentation on the regional trials has made impossible the task of analysing these other low-profi le cases. 4 For literature on other aspects of the trial see: Firew Kebede Tiba , ‘Th e Mengistu Hailemariam Genocide Trial in Ethiopia’ , Journal of International Criminal Justice , 5 ( 2007 ), 513–28 ; Firew Kebede Tiba , ‘Prosecuting International Crimes in Domestic Courts: Th e Trial of Mengistu and Other Derg Members for Genocide, Torture and Summary Executions’ in Chacha Bhoke Murungu and Japhet Biegon (eds), Prosecuting International Crimes in Africa ( Pretoria : Pretoria University Law Press 2011 ), 163–83 ; Yacob Haile-Mariam , ‘Th e Quest for Justice and Reconciliation: Th e International Criminal Tribunal for Rwanda and the Ethiopian High Court’ , Hastings International and Comparative Law Review , 22 ( 1989–99 ) ; J.V. Mayfi eld , ‘Th e Prosecution of War Crimes and Respect for Human Rights: Ethiopia’s Balancing Act’ , Emory International Law Review , 9 ( 1995 ), 553–93 . 115_9780199671144c15.indd5_9780199671144c15.indd 330707 110/3/20130/3/2013 44:16:56:16:56 PPMM 308 African Histories a momentous event in the modern history of Ethiopia. Th e revolution brought down the three-millennia Solomonic dynasty. Haileselassie I, the last Ethiopian monarch, had been in power for nearly half a century presiding over a semi-feudal economy that relegated the masses to serfdom. His regime’s failure to respond to reform demands over the course of his reign led to a spontaneous mass rebellion and eventually a military coup mounted by the Derg. Th e rebellion was initiated by university students, peasants, labour unions, urban dwellers and intellectuals. Th e army also had administrative issues it sought to be addressed. Th is subsequently led to the formation of a mobilization commit- tee from various sectors of the army composed of junior offi cers who took charge of the negotiation with the emperor. Th e negotiations failed to break the deadlock. Following this deadlock, junior offi cers from various army divisions sent to Addis Ababa to air their grievances took matters into their own hands and removed the aging monarch from power and established the Derg on 28 June 1974. Th e Derg declared the abolition of the imperial regime.5 In a decree that fol- lowed two days later, Proclamation No. 2/1967, the members of the Derg, num- bering a little over 100, assumed the position of collective heads of states instead of giving power to one single individual. Th is arrangement changed sometime later when members resolved to empower the Chairman to execute decisions of the general assembly, standing committee and sub-committees. Th e assumption and monopolization of power by the military was not accept- able to other organized parties that sought the establishment of a popular govern- ment. Th e ensuing political confrontation ushered in an era of terror that led to the death and injury of tens of thousands of people. 6 At the height of this bra- zen abuse of power, the Derg empowered its security apparatus, urban and rural dweller associations, militias, and revolutionary guards to kill, torture and maim with impunity anybody suspected of being a ‘subversive’, ‘anti-revolutionary’, ‘counter-revolutionary’, or ‘anti people’. 7 Th e charges fi led by the Special Prosecutor in all Red Terror cases identify 12,315 individuals as being killed. Th e courts so far have found that 9,546 of these were indeed victims of the crimes perpetrated during that period. Of these, 228 victims were women and girls.8 Furthermore, 1,500 victims were confi rmed by the courts 5 Provisional Military Government of Ethiopia, Proclamation No. 1/1967. 6 Human Rights Watch, Ethiopia: Reckoning Under the Law , 6:11 (November 1994). 7 Th e Red Terror was authorized by Proclamation 121 of 1977: see United States Institute of Peace (1994) Ethiopia: Report of the Offi ce of the Special Prosecutor , < http://www.usip.org/fi les/resources/ Ethiopia-SPODossier-2.pdf > (accessed 25 February 2013) (SPO Report). 8 Report of the SPO on February 2010 to the House of Peoples Representatives. See the video doc- umentary produced by the state run Ethiopian Television in Amharic which includes the SPO Report as well as Member of Parliament comments. See the video on this video-sharing website: < http:// www.ethiotube.net/video/8192/Documentary--findings-of-human-rights-abuses-during- Red-Terror-era--Part-1 > (Part I) (accessed 25 February 2013) and < http://www.ethiotube.net/ video/8194/Documentary--fi ndings-of-human-rights-abuses-during-Red-Terror-era--Part-2 > (Part II) (accessed 25 February 2013). For an immediate reaction to the report in transitional justice context see: Luelseged Degu (11 February 2010), ‘Report from Special Prosecutor Offi ce of Ethiopia: Half-Way Transitional Justice’, Abugida Ethipian American Information Centre [website], < http://www.abugid- ainfo.com/index.php/13562/ > (accessed 25 February 2013).