Practice Relating to Rule 151. Individual Responsibility
Ethiopia’s Penal Code (1957), under the heading “Offences against the law of nations”, provides for a list of punishable acts committed by “whosoever” such as: “war crimes against the civilian population” (Article 282); “war crimes against wounded, sick or shipwrecked persons” (Article 283); “war crimes against prisoners and interned persons” (Article 284); “pillage, piracy and looting” (Article 285); “provocation and preparation [of the above-mentioned acts]” (Article 286); “dereliction of duty towards the enemy” (Article 287); “use of illegal means of combat” (Article 288); “maltreatment of, or dereliction of duty towards, wounded, sick or prisoners” (Article 291); “denial of justice” (Article 292); “hostile acts against international humanitarian organizations” (Article 293); “abuse of international emblems and insignia” (Article 294); and “hostile acts against the bearer of a flag of truce” (Article 295). Some of these provisions specify that the acts concerned be committed “in time of war, armed conflict (or occupation)” and/or “in violation of the rules of public international law”.
According to the Report on the Practice of Ethiopia (1998), acts which constitute “war crimes in the context of [an] international armed conflict would also be crimes in the context of [an] internal armed conflict”.
In 1992, the transitional government of Ethiopia adopted the Special Public Prosecutor’s Office Establishment Proclamation which provides:
Whereas … it is essential that higher officials of the WPE [Workers’ Party of Ethiopia] and members of the security and armed forces who have been detained at the time the EPRDF [Ethiopian People’s Revolutionary Democratic Front] assumed control of the Country and thereafter and who are suspected of having committed offences … must be brought to trial;
Whereas it is necessary to provide for the establishment of a Special Public Prosecutor’s Office that shall conduct prompt investigation and bring to trial detainees as well as those persons who are responsible for having committed offences and are at large both within and without the Country;
Now therefore … it is hereby proclaimed as follows:
The Special Public Prosecutor’s Office … is hereby established.
The Office shall, in accordance with the law, have the power to conduct investigation and institute proceedings in respect of any person having committed or responsible for the commission of an offence by abusing his position in the party, the government or mass organization under the Dergue-WPE regime.
In the Mengistu and Others case in 1995 concerning the prosecution and trial of Col. Mengistu Haile Mariam and former members of the Derg for allegedly committing crimes against humanity and war crimes during the former regime between 1974 and 1991, the Special Prosecutor of Ethiopia, in a reply to the objection filed by counsels for the defendants, referred, inter alia, to the 1919 Treaty of Versailles, to the 1945 IMT Charter (Nuremberg) and Nuremberg trials and to the 1993 ICTY Statute. He stated:
Whosoever commits an international criminal offence in a capacity as a Head of State or responsible government official shall always be accountable for his acts and the punishment shall always be aggravated. Heads of State and other higher responsible government officials in any form of government are all required and obliged to know international crimes thereunder … By the same token, they must also be equally responsible and severely punished whenever they are found guilty of the commission of these acts.
The Special Prosecutor further noted: “It is also known that there is a Geneva Convention which regulates the protection of the right of life of a person in time of war by providing for an effective means of penalty.”
In 1992, the Office of the Special Public Prosecutor (SPO) was established in Ethiopia after the fall of the regime of Colonel Mengistu Haile Mariam in 1991. In a letter to the Assistant Secretary-General for Human Rights, Ethiopia explained that the SPO had “the power to conduct investigations and institute proceedings against those it suspects of committing crimes and/or abusing their positions of authority in the former [Mengistu] regime”.
In 1994, in a statement before the UN Commission on Human Rights, the Chief Special Prosecutor of the Ethiopian Transitional Government stated that the Office of the Special Public Prosecutor (SPO) was established “to compile a list of all the abuses committed by the previous regime and to bring those responsible to justice”.
According to a statement made in 1997 by Ethiopia’s Office of the Special Public Prosecutor (SPO), which is in charge of prosecuting persons who allegedly committed crimes of genocide, crimes against humanity and war crimes between 1974 and 1991, since the SPO’s establishment in 1992 by Proclamation 22/1992 of the transitional government of Ethiopia, a total of 5,198 persons had been charged by 1997, 54 of them with war crimes and most of the others with genocide, the defendants being classified into three major groups: policy- and decision-makers; field commanders; and the perpetrators of the crimes. The charges were based on Ethiopia’s Penal Code.