ECLI:NL:GHDHA:2022:1674

• Datum uitspraak: 8 juni 2022
• Publicatiedatum: 2 september 2022
• Zaaknummer: 2200550317v
• Instantie: Gerechtshof Den Haag
• Type: Uitspraak
• Rechtsgebied: Strafrecht
• Procedures: Hoger beroep
• Rechters: L.C. van Walree; B. Stapert; Y.C. Bours
• Vindplaatsen: Rechtspraak.nl

AI samenvatting door Lexboost • Automatisch gegenereerd

Oordeel over oorlogsmisdaden gepleegd door een voormalige Ethiopische ambtenaar tijdens het regime van de Derg

In deze zaak heeft het Gerechtshof Den Haag een voormalige Ethiopische ambtenaar veroordeeld tot levenslange gevangenisstraf voor oorlogsmisdaden die zijn gepleegd tijdens het regime van de Derg in de jaren '70. De verdachte, die in Nederland woonde, werd beschuldigd van zijn rol als vertegenwoordiger van het regime in de provincie Gojjam, waar hij betrokken was bij de arrestatie, detentie en marteling van honderden slachtoffers, evenals bij de uitvoering van doodstraffen zonder proces. Het hof oordeelde dat de verdachte en anderen gezamenlijk deze misdaden hebben gepleegd, waarbij de slachtoffers vaak zonder enige rechtsgang werden veroordeeld. De rechtbank heeft ook vastgesteld dat de verdachte schadevergoeding moet betalen aan een aantal slachtoffers. De zaak kwam aan het licht na een artikel in de media dat de verdachte in verband bracht met oorlogsmisdaden. De verdachte was ernstig ziek en kon niet aanwezig zijn bij de rechtszittingen, die deels in de gevangenis plaatsvonden. De uitspraak van het hof benadrukt de ernst van de gepleegde misdaden en de noodzaak om de daders ter verantwoording te roepen voor hun daden.

Uitspraak

Cause list number: 22-005503-17

Public Prosecutor’s Office number: 09-748013-12

Date of judgment: 8 June 2022

JUDGMENT AFTER TRIAL

Court of Appeal, The Hague

joint bench for criminal proceedings

Judgment

rendered in the appeal against the decision of the District Court of The Hague of 15 December 2017 in the criminal case against the accused:

[name of the accused] ,

born in [place of birth] (Syria) on

[date of birth] 1954,

currently detained at the Krimpen aan den IJssel prison facility in Krimpen aan den IJssel.

Investigation name: Merens

Table of contents

1.
List of abbreviations used p. 4

2.
Some preliminary remarks p. 5

3.
Charges p. 5

4.
Procedure p. 6

5.
Request by the Advocates General p. 7

6.
Jurisdiction and competence p. 7

7.
Partial inadmissibility on appeal p. 7

8.
Decision appealed against p. 8

9.
Criminal investigation p. 8

10.
Admissibility of the Public

Prosecution Service in the prosecution p. 10

10.1 Defence

10.2 Establishment of the facts and

circumstances

10.3 Opinion of the Court of Appeal

10.4 Conclusion

11.
Applicable law p. 23

11.1 Articles 8 (old) and 9 (old) of the

Wartime Offences Act

11.2 The term ‘laws and customs

of war’

11.3 The requirements for war crimes

12.
Valuation of the evidence p. 29

12.1 The witness statements

12.2 Conditional witness requests

from the defence

12.3 The documents from Ethiopia

12.4 Requests for further examination

of the documents from Ethiopia

12.5 The report of expert Abbink

12.6 Fair trial

13.
Assessment of the charges p. 45

13.1 The existence and nature of the p. 45

conflict

13.1.1
Armed conflict

13.1.2
Relevant developments in

Ethiopia from 1974 onward

13.1.3
Parties to the conflict

13.1.4
Armed struggle

13.2 The role and position of the accused p. 56

13.3 Establishment of the facts p. 61

13.3.1
Establishment of the

actual events

13.3.2
Names of (proven) persons

13.3.3
Partial acquittal in respect of

some persons

13.3.4
Partial acquittal with regard to the period in which offence 4 was committed

13.4 Protected persons p. 75

13.5 Violations of international p. 75

humanitarian law

13.5.1
Assessment framework

13.5.2
Violations of international

humanitarian law in this case

13.6 Involvement and role of the accused

in the acts charged p. 89

13.6.1
Assessment of the actual role of the accused

13.6.2
Legal qualification of the

role of the accused

13.7 Nexus p. 99

14.
Conclusion p. 101

15.
Declaration of charges proven p. 102

16.
Criminal nature of the

facts proven p. 103

17.
Criminal liability of the accused p. 104

18.
Grounds for the sentence p. 104

19.
Claims for damages p. 108

20.
Applicable legal provisions p. 112

21.
Judgment p. 113

Annexes

Indictment p. 116

Declaration of charges proven p. 181

Endnotes p. 200

1. List of abbreviations used

AP I-IIA Additional Protocol I or II to the Geneva Convention 1949

DLR Dienst Landelijke Recherche (National Investigation Service)

EDU Ethiopian Democratic Union

ELF Eritrean Liberation Front

EPLF Eritrean People’s Liberation Front

EPRP Ethiopian People’s Revolutionary Party

EPRA Ethiopian People’s Revolutionary Army

ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms

GC I-IV Geneva Convention of 1949 I up to and including IV

ICC International Criminal Court

ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for the former Yugoslavia

Meison All Ethiopian Socialist Movement

PMAC Provisional Military Administrative Council

SPO Special Prosecutor’s Office

CC Criminal Code

CCP Code of Criminal Procedure

TIM International Crimes Team

TPLF Tigray People’s Liberation Front

WIM Wet Internationale Misdrijven (International Crimes Act)

WOS Wet Oorlogsstrafrecht (War Crimes Act)

2. Some remarks in advance

This war crimes case concerns events in the 1970s in Ethiopia. The localities of Debre Marcos and Metekel appear in the indictment and were both localities in the then Gojjam province of Ethiopia.

In Ethiopia, events are recorded according to the Coptic calendar. The dates mentioned in this judgment are, unless otherwise indicated, dates according to the western, Gregorian calendar. Where applicable, a conversion has been performed.

In this judgment, the Court of Appeal will discuss, among other things, the political and historical backgrounds of the situation in Ethiopia at the time. The Court of Appeal will also base its judgment on sources that are publicly available and are included as written documents in the criminal file. Evidence is mentioned in footnotes, other sources in endnotes.

3. Charges

The accused is on trial on suspicion of involvement in war crimes, committed in Ethiopia in the period from 1 February 1978 up to and including 31 December 1981. These offences have been described in the indictment amended in the first instance, incorporated in this judgment as Annex 1.

The accusations invariably involve violations in various forms of Article 8 (old) of the Wet Oorlogsstrafrecht (War Crimes Act) (hereinafter WOS), and are - in brief - as follows:

Count 1: Deprivation of liberty and inhuman treatment in the period from 1 February 1978 up to and including 31 July 1978. The accused is alleged to have arbitrarily deprived 321 persons of their liberty in Debre Marcos and/or Metekel, to have treated them cruelly and inhumanly, to have committed attacks upon their personal dignity and to have pronounced judgments against them without prior trial by an independent court. This Count is charged as co-perpetration, intentional acceptance as a superior, and as aiding and abetting.

Count 2: Torture in the period from 1 February 1978 up to and including 1 September 1978. The accused is alleged to have tortured nine people in captivity in Debre Marcos and/or Metekel. Also this Count is charged as co-perpetration, intentional acceptance as a superior, and as aiding and abetting.

Count 3: The killing of 75 persons in the period from 14 August 1978 up to and including 17 August 1978. The accused is alleged to have given orders to kill 75 persons who were in prison in Debre Marcos and/or Metekel. This Count is charged as co-perpetration and as instigation.

Count 4: The same allegation as under Count 1, but with regard to 240 persons in the period from 1 August 1978 up to and including 31 December 1981. This Count is charged as co-perpetration, instigation, intentional acceptance as a superior, and as aiding and abetting.

Co-perpetration, aiding and abetting, instigation and/or intentional acceptance as a superior is herewith invariably charged cumulatively/alternatively, i.e. as an and/or variant.

4. Procedure

In the first instance, the accused was acquitted of:

• The charges under Count 1 of intentional acceptance as a superior, and aiding and abetting;
• The charges under Count 2 of co-perpetration, and aiding and abetting;

The charges under Count 4 of intentional acceptance as a superior, and aiding and abetting;

The accused was convicted in the first instance of:

• Co-perpetration of the charges under Count 1;
• Intentional acceptance as a superior of the charges under Count 2;
• Co-perpetration and instigation of the charges under Count 3;
• Co-perpetration of the charges under Count 4.

The accused was sentenced by the District Court to life imprisonment.

Furthermore, the District Court made decisions on the claims from the injured parties, as described in the decision appealed against.

An appeal was lodged against the decision on behalf of the accused and by the Public Prosecutor.

5. Request by the Advocates General

The Advocates General have requested that the decision appealed against be set aside and that the accused be sentenced in respect of the charges under Count 1 first cumulative/alternative (co-perpetration), Count 2 first cumulative/alternative (co-perpetration), Count 3 first and second cumulative/alternative (co-perpetration and instigation), and Count 4 first cumulative/alternative (co-perpetration) to life imprisonment.

6. Jurisdiction and competence

The indictment refers to offences committed outside the Netherlands, against non-Dutch victims by an accused who did not have Dutch nationality at the time. The Court of Appeal has examined whether the Dutch court has jurisdiction.

Article 3 (old) of the WOS stipulated at the time of the indictment that this Act is applicable to anyone who is guilty of an offence described in Articles 8 and 9 of the WOS outside the realm in Europe. The accused has been charged with these offences. The Dutch court therefore has jurisdiction. ^[1]

Pursuant to Article 15 of the Wet Internationale Misdrijven (International Crimes Act) (hereinafter WIM), the Court of Appeal of The Hague is the only court competent to hear international crimes as charged against the accused. This Court of Appeal, adjudicating on appeal, therefore has jurisdiction.

7. Partial inadmissibility on appeal

The appeal has been lodged by the Public Prosecutor and on behalf of the accused without limitation and therefore also directed against the decision rendered in the first instance to acquit the accused of the charges under Count 2 insofar as they relate to the persons [person 329] and [person 330], and the charges under Count 4 insofar as they relate to [person 325], [person 319], and [person 320].

At the appeal hearing, the Advocates General stated that the objections of the Public Prosecution Service did not relate to these elements, and they requested that the Public Prosecution Service’s appeal with regard to these elements be declared inadmissible. In view of the provisions of Article 404, Paragraph 5, of the Code of Criminal Procedure (hereinafter CCP), the accused may not appeal against the decision of acquittal.

In view of the above, the Court of Appeal will declare the Public Prosecutor and the accused inadmissible in their appeal, insofar as this appeal is directed against the acquittal of the charges under Count 2 of the decision appealed against inasmuch as they concern [person 329] and [person 330], and the charges under Count 4 insofar as they concern [person 325], [person 319], and [person 320].

8. Decision appealed against

The decision appealed against cannot be upheld, because the Court of Appeal has come to a different declaration of charges proven. The Court of Appeal will also adjust parts of the evidence-based argumentation.

9. Criminal investigation

This case came to light after the publication of an article in the magazine ‘Vrij Nederland’, in which the accused was linked to war crimes that took place under the Mengistu regime (Derg regime, 1974-1991) in Ethiopia.

In response to a request for legal assistance from the Public Prosecution Service, parts of the Ethiopian criminal file in the case against the accused were received from the Ethiopian authorities. The Dutch police also photographed other parts of the criminal file against the accused in Ethiopia.

Furthermore, during the investigation an open-source investigation was carried out, files were requested from the Immigration and Naturalisation Service (IND) and both the Dutch police, and the Examining Magistrate heard witnesses in the Netherlands and abroad. Special investigative powers have also been used, such as the recording and wiretapping of telephone conversations and the conversations that took place in 2015 (within the scope of systematic information gathering) between the accused and a police officer of the Undercover Operations Team.

The accused was arrested at his home in the Netherlands on 29 September 2015 and has been in pre-trial detention since his arrest.

From the end of 2015, the Examining Magistrate heard witnesses and appointed experts. Expert W.C. de Jong performed a comparative analysis of handwriting. Professor G.J. Abbink issued a report on the political and historical context of the events in Ethiopia in the period from 1974 to 1979.

On appeal, pre-trial hearings were held on 23 April 2018 and 29 May 2018 (notification of decisions), and on 30 October 2018 and 19 November 2018 (notification of decisions). Three witnesses were heard by the Examining Justice on these occasions.

Attempts were also made to hear other witnesses, but these were not successful.

Furthermore, the Examining Justice appointed three experts who (again) carried out comparative analyses of handwriting, namely C. Verhulst, W. de Jong and P.L. Zevenbergen.

In 2018, a number of new documents were received from the Ethiopian authorities, namely a so-called ‘list of collected documents’.

In the run-up to the substantive appeal hearing, in addition to the aforementioned investigation by the Examining Justice, also the accused’s state of mind and his physical health and resilience were examined.

Prior to the substantive hearing, a written round was held concerning the claims of the injured parties.

This judgment was rendered as a result of the examination at the hearings in the first instance and the examination at the hearing in the appeal proceedings of this Court of Appeal.

The substantive hearing, which in view of the accused’s state of health and following the advice of the experts was partly held in the prison facility where the accused is staying, took place on 5, 6, 11, 13, 14, 19 and 20 April 2022. The investigation was closed at the Court of Appeal session of 25 May 2022.

The Court of Appeal has taken cognisance of the request of Advocates General M.R. Witteveen LLM and N. Vogelenzang LLM and of that which has been put forward by the accused and his counsels, S. Arts LLM and J.P.A. van Schaik LLM.

Furthermore, the Court of Appeal has taken cognisance of the statements made by B. van Straaten LLM and B. Vossenberg LLM on behalf of the injured parties, whereby the right to speak was also exercised on behalf of several victims during the substantive hearing. Mr [person 314] exercised his right to speak by video link.

10. Admissibility of the Public Prosecution Service in the prosecution

10.1

Defence

The defence argues that there are such flaws in (the basis of) these criminal proceedings that a fair trial is no longer possible and that (primarily) the Public Prosecution Service should be declared inadmissible.

This is based - in brief - on the fact that:

the start of the investigation was not properly reported and was done so in a manner contrary to the duty to report;

neither original documents nor a complete criminal file have been obtained from Ethiopia;

important witnesses could not be heard, and

the passage of time has placed irreparable limitations on the process of establishing the truth.

Because of this, a fair trial is no longer possible within the meaning of Article 6 ECHR and the principles of a proper criminal procedure. According to the defence, there has also been a gross disregard of the rights of the accused, whereby his right to a fair hearing of his criminal case has been severely compromised.

10.2

Establishment of the facts and circumstances

Based on the documents in the file, the Court of Appeal assumes the following relevant facts and circumstances for the assessment of the above.

Start of the investigation

The official report dated 12 February 2016 states that the International Crimes Team (hereinafter also TIM) of the Dienst Nationale Recherche (National Investigation Service) (hereinafter also DLR) has been conducting a criminal investigation against the accused since 2009. This investigation was prompted by an article written by journalist [journalist] in the magazine
Vrij Nederland on 13 June 1998. In this article, with the headline ‘Ethiopian executioner in hiding in the Netherlands’, [journalist] writes about an Ethiopian named [name of accused] who was one of the agents implementing Mengistu’s (in power from 1974 until 1991) reign of terror in Ethiopia. The article mentions lists of names of persons to be executed or to be imprisoned with hard labour, and a number of written orders. According to the author, these documents were drawn up in 1978 by [name of accused], who had been living in the Netherlands since 1991. An official report of 14 May 2009 refers to the contents of this article. The article is attached.

[Journalist] was heard as a witness by the Examining Justice on 22 August 2018. She stated, inter alia:

You are asking me whether I have ever been questioned by the police or by the judiciary in this criminal case. There has been contact, first by telephone and then, I think, by email. That was at a time when I already had no material left. You are asking me if I remember when that was. I don’t know, I think sometime in the last 10 years. I think closer to 10 years than to 5 years. You are asking me what I was asked then. I was asked if I had any more details about the case. My answer was: no. I no longer had the material. I went looking for old emails in which I had sent the original piece to the editor. The email address I used to work with. It didn’t work anymore. I didn’t have anything anymore. (...) You are asking me if what I had were originals or copies. They were copies. (...) You are asking me whom I had contact with from the Public Prosecution Service. He was involved in a Dutch department that dealt with asylum seekers who had committed war crimes, Yugoslavs in particular. The special chamber that dealt with the prosecution of asylum seekers with a violent past. I don’t remember the name. It was a man.

The Public Prosecution Service submitted an official report dated 31 January 2018, in which Public Prosecutor Berger mentions contact he had with [journalist] in the period from January 2013 - March 2013. He writes that he had then asked her if she could provide information about the Ethiopian documents to which she refers in the article of 13 June 1998, to which she had replied that she had consulted her archives and her memory but that she had been unable to find any information.

Documents

i.
the documents from Ethiopia

In Ethiopia, the accused was sentenced in absentia to death on 8 May 2000 by the Federal Court in Addis Ababa for crimes he had committed as a member of the Derg. By means of requests for legal assistance, the investigation team has had access to (copies of) documents from the criminal proceedings against the accused in Ethiopia since 2013. These have been added to the file, including translations. These comprise:

• an indictment against the accused bearing number 912/89 and a list of witnesses;
• an undated judgment of the Federal Court in Addis Ababa with number 912/89 and sentencing dated 8 May 2000;
• 41 pages of documents;
• photographed pages of the Ethiopian criminal file;

These documents, or parts thereof, shall hereinafter also be referred to as ‘the documents from Ethiopia’.

The Ethiopian criminal file covers 10 criminal cases with, according to the indictment, varying crime sites in Ethiopia. Two of these cases concern the localities of Debre Marcos and Metekel. The present Dutch investigation focuses only on the Debre Marcos and Metekel cases. As mentioned above, the indictment in this case lists these localities as crime sites and concerns the period from 1 February 1978 up to and including 31 December 1981.

comparative analysis of handwriting

At the request of the defence, in the first instance a comparative analyses of handwriting was performed on signatures attributed to the accused on some Ethiopian documents. Handwriting expert W.C. de Jong reported on 4 March 2016 and was heard as an expert by the Examining Magistrate on 28 June 2016.

On appeal, comparative analyses of handwriting were again conducted. At the request of the Public Prosecution Service, De Jong conducted further research into (other) documents and reported on 13 September 2018. The request of the defence for analysis by another handwriting expert was granted, which resulted in the report of expert C. Verhulst dated 17 December 2018. The request from the defence to have P.L. Zevenbergen (who is not registered in the expert register) conduct analysis was ultimately granted as well; he reported on 22 January 2019.

The experts have – briefly summarized - found each time the quality and quantity of both the material submitted for examination and the comparative material to be inadequate. In their reports, however, they have consistently answered the questions put to them on the basis of the research they had carried out.

examination of Kiros

Former Public Prosecutor in the criminal case against the accused in Ethiopia, Yoseph Kiros Gezahegn (hereinafter Kiros), was examined by the Examining Magistrate on 19, 20 and 21 April 2016. He was asked questions by her, by the Public Prosecution Service and by the defence, inter alia about the nature and origin of the Ethiopian documents. He stated, among other things:

(...) We then explained the case against [name of accused] to the Dutch police and gave documents about him to the Dutch police and the judgment regarding [name of accused]. (...) The documents we gave were copied from the file. (...) I know that Dutch detectives have taken pictures of documents. (...) Most of the original documents were found in the same place, namely the premises of the Derg’s security office. Millions of documents had been found all over the country. We started collecting documents after the SPO (Court of Appeal: Special Prosecutors Office) had been established. Then we kept the documents at the SPO until the legal proceedings began. The documents were examined and then copies were made for the judges. The originals were kept in our office. The documents were found 14 years after the events took place. (...)

(...) I showed them (Court of Appeal: the Dutch Public Prosecutor and the Police Officer) the original documents. (...) You are asking me whether they have also seen the originals of these 41 pages. Yes, I have shown them.

(...) I have seen the originals of these lists with my own eyes. I know that the original bears the signature of [name of accused]. These lists have been used in court in the trial against [name of accused]. That is, certified copies of these lists.

(...) You are asking me whether I can rule out the possibility of the original documents as kept in the SPO office having been tampered with, for example the list of 80 names. I know that the source documents have not been tampered with, you mention the smuggling of documents into the Netherlands. I know nothing about that. I have not seen those. But I know that the original documents that we had were not tampered with.

You are asking me whether I can rule out the possibility of documents having been tampered with during the Derg regime, for example in order to get at someone. I don’t think it’s possible, but that’s a supposition, I can’t say anything about it.

additional documents

On appeal, the Public Prosecution Service sought to obtain more (originals of) documents from Ethiopia by means of a request for legal assistance. At the appeal hearing on 30 October 2018, the Advocate General stated:

‘(...) with regard to requesting documents that are in Ethiopia, I refer to the correspondence between the Public Prosecution Service and the defence. We have given the defence the opportunity to indicate certain documents that can be suspected to be in the Ethiopian file. We have not received any response to this. Should the defence as yet make a statement, the Public Prosecution Service will make an effort to obtain those documents.’

The counsel for the accused responded as follows:

‘There was indeed correspondence about the documents to be requested in Ethiopia. I informed the Public Prosecution Service at the time that Van Schaik LLM was on holiday and that it was also very difficult for the defence to guess which documents might be exculpatory. That is why we ask for an inventory of the existing documents.’

According to the official report, the Advocate General stated thereupon that there was no inventory.

The request for legal assistance of 27 August 2018 requests the provision of new documents, and the originals of the documents already available ‘to facilitate a forensic investigation into the signatures and/or the handwriting that appear on the documents’.

On 19 February 2020, the Advocate General submitted documents to the proceedings, namely the abovementioned ‘list of collected documents’, obtained from the Ethiopian authorities in response to the request for legal assistance. It comprises 22 documents totalling 201 pages, some of which are new, and some are (better) copies of documents already on file. In the accompanying letter, the Advocate General states that the requested originals have not been found and that the authorities have exhausted all the possibilities to find them.

The Court of Appeal has established that not all the documents requested in the request for legal assistance were obtained.

Witnesses

The witnesses in this case can be divided into three groups.

In the present investigation, several dozen witnesses from Ethiopia were examined, mainly residing in the United States and Canada at the time of the examination. Also some witnesses in the Netherlands were examined. According to the official reports of examination, the questioners pointed out a number of matters to these witnesses, among which - in brief - the importance of mentioning the source of knowledge, the fact that they were asked about events from long ago and that the witness should say if he/she does not know something (anymore) and should not make things up, and the request not to share information from or about this examination with third parties. The vast majority of these witnesses were also examined by the Examining Magistrate, with the (then) defence present, by video link or not, and was able to ask questions (or have questions asked).

Another, second group of witnesses are the persons who gave statements as witnesses in the Ethiopian criminal proceedings. They have never been examined in the Dutch investigation. A third category are persons who have never been examined at all, but whose examination has been requested because they are mentioned in other statements or appear in documents in the file. Examples are Mengistu and the directors of the prisons in Debre Marcos and Metekel.

Both in the first instance and on appeal, the defence has requested the examination of large numbers of witnesses. Insofar as the District Court in the first instance granted these requests, they were either heard by the Examining Magistrate (the first group mentioned above) or, insofar as they could be traced at all, they could not be examined in the absence of any possibility of legal assistance from Ethiopia and Zimbabwe (from the last 2 groups).

On appeal, the Court of Appeal has granted the examination of (in total) 21 witnesses. Although initially the possibilities for legal assistance from Ethiopia seemed to be greater, the submission of a request for legal assistance failed to lead to the hearing of the (16) witnesses residing there. On 8 March 2021, 30 June 2021 and on 8 and 22 February 2022, the Examining Justice drew up official reports of findings that - in brief - purport to the fact that it appeared to her from the reports of the authorities concerned in Ethiopia that, partly in view of the political developments there, it is not plausible that the witnesses could be examined within an acceptable term. Legal assistance was still not possible with Zimbabwe. The witnesses who could not be examined all belonged to the last 2 groups mentioned above. In total, 3 witnesses were examined by the Examining Justice in the presence of the defence.

10.3

Opinion of the Court of Appeal

The criterion to be applied

In its ruling of 30 March 2004, the Supreme Court formulated the following criterion with regard to the declaration of inadmissibility of the Public Prosecution Service:

‘
The legal consequence of inadmissibility of the Public Prosecution Service, as provided for in art. 359a CCP, can only be considered in exceptional cases. There is only room for this if the procedural defect resides in the fact that the officials responsible for the investigation or prosecution have severely violated the principles of due process, as a result of which the right of the accused to a fair trial has deliberately or with gross disregard for his or her interests been compromised.‘ ^[2]

In a ruling of December 2020, the Supreme Court further adjusted and clarified the application of this criterion as follows:

‘2.5.2
The purport of this criterion is that, in the event that the right of the accused to a fair trial has been so severely violated that there can no longer be any question of a fair trial within the meaning of Article 6 of the ECHR, the Public Prosecution Service will be declared inadmissible in the prosecution. This must be an irreparable infringement of the right to a fair trial, which has not been or cannot be compensated for in a way that satisfies the requirements of a proper and effective defence. In addition, this infringement must be able to carry the far-reaching judgment that - in the words of the European Court of Human Rights - ‘the proceedings as a whole were not fair’. However, in the very exceptional case that the Public Prosecution Service might be declared inadmissible on this ground, it does not additionally have to be established – in that respect, the Supreme Court has adjusted the criterion applied earlier - that the infringement of the right to a fair trial took place deliberately or with gross disregard for the interests of the accused. (...)

2.5.3

In cases where there has been one or more procedural defects that initially jeopardised the right of the accused to a fair hearing of the case, but which have been remedied to a sufficient extent to allow the trial as a whole to proceed in a fair manner, the criterion discussed under 2.5.2 does not, in principle, allow for the Public Prosecution Service to be declared inadmissible.(...). ’ ^[3]

Violations of standards during the investigation is a form of procedural defect. Pursuant to Article 132a CCP, investigation is understood to mean the investigation of criminal offences under the authority of the Public Prosecutor with the aim of making decisions pertaining to criminal procedure.

The Supreme Court already made similar considerations in a ruling of 13 September 2016 regarding inadmissibility as a reaction to infringements of defence rights that do not fall within the scope of Article 359a CCP:

‘2.3.4.

In the event of an infringement on the defence rights of the accused, which does not fall within the scope of Art. 359a CCP, the inadmissibility of the Public Prosecution Service will not be considered, except in the exceptional case that the infringement is of such a nature and severity that it is no longer possible to speak of a fair trial within the meaning of art. 6 ECHR. It should be noted in this respect that it must first and foremost be an infringement that is irreparable and that has not been compensated for in a way that satisfies the requirements of a proper and effective defence. In addition, this infringement must be capable of supporting the far-reaching judgment that - in the words of the European Court of Human Rights - ‘the proceedings as a whole were not fair’. It follows from the above that the declaration of inadmissibility of the Public Prosecution Service can only come into play in exceptional cases. High demands are made on the reasons for that declaration of inadmissibility.

Consequences other than the inadmissibility of the Public Prosecution Service are more likely if there is an infringement - irreparable and not subject to (procedural) compensation - of the defence rights.

If, for example, the evidence of the accused’s involvement in the charges against him is based exclusively on a witness statement made to the police against him, while on the grounds mentioned in HR 29 January 2013, ECLI:NL:HR:2013:BX5539, NJ 2013/145 it must be assumed that the accused has not been able to exercise the right provided for in Article 6, Paragraph 3, opening words and under d, ECHR, to examine the witness or to have the witness examined regarding that statement, and that the accused’s involvement in the charges against him is not confirmed by other evidence either, or that the evidence referred to does not relate to those parts of the statement that have been contested by the accused, it seems logical that this contested witness statement should not be used as evidence and that, in the absence of other evidence, the accused be acquitted of the charges against him, and in a confiscation case, that the demand for a confiscation order be rejected. This is no different if the lapse of time has constituted a complication in the collection and valuation of the evidence.’ ^[4]

The Court of Appeal has assessed the arguments brought forward by the defence and the possible consequences thereof in the light of the above. The Court of Appeal has concurrently taken the points brought forward by the defence - where applicable jointly - into consideration.

Re a: a contravention of the obligation to report?

Article 152 CCP stipulates that investigating officers draw up an official report of the offence that they have detected or of what they have done or found in connection with an investigation as soon as possible.

From what [journalist] has stated – in contrast to what the defence has argued – the start of the investigation cannot be considered to have been reported in a manner defying the truth. Indeed, the fact that [journalist] had contact with someone from the Public Prosecution Service in the ten years prior to her examination before the Examining Justice in 2018 relates to what has been stated in the official report, and that which Berger explained in the official report that was submitted at a later date. Also otherwise, the Court of Appeal cannot see how in this respect official reports might not have been drawn up in accordance with the truth, or - as the defence argues – that the (as the Court of Appeal understands it: unjustified) impression was created that ten years later the article by [journalist] was suddenly stumbled upon, which led to the start of the investigation.

In contrast to what the defence has argued, it has not at all become apparent that an official report was drawn up (under oath of office) in violation of the obligation to report, and so, in this respect, no procedural error can be said to have been made.

Re b. neither original documents nor a complete criminal file have been obtained from Ethiopia

It is not disputed that in this case documents from Ethiopia take an important place in the evidence against the accused. Together with the defence and the Public Prosecution Service the Court of Appeal furthermore finds that it would certainly have been preferable to have the originals of these documents, inter alia for further forensic research. Although the Court of Appeal does not see why the complete criminal file from Ethiopia should be available (all the more so since the Ethiopian criminal file only partly concerns the facts of which the accused is accused in the present Dutch criminal proceedings), it is also certain that not all possibly relevant documents have been obtained. In order to obtain these documents and the originals, the Public Prosecution Service made the necessary efforts by means of the aforementioned requests for legal assistance, but without the desired result.

The failure to obtain all relevant and original documents from Ethiopia should not be regarded as a procedural error within the meaning of Article 359a CCP. Therefore, the Court of Appeal should assess whether this constitutes an infringement of the defence rights of such a nature and severity that there can no longer be any question of a fair trial within the meaning of Art. 6 ECHR as referred to in the aforementioned judgment. The Court of Appeal answers this question in the negative.

In the first instance and on appeal, the defence has been able to comment on the collected documents and has been able to put forward a defence, which it has done. The defence has been given the opportunity by the Public Prosecution Service to actively participate in the collection of additional documents in Ethiopia during the appeal phase. Handwriting experts have investigated at the request of (inter alia) the defence and one of them has been examined in the presence of the defence. Although better research could have taken place if originals had been available, the experts were nevertheless able to answer the questions put to them.

Finally, the defence was able to question Kiros extensively about the nature and origin of the documents provided. He was also questioned about the possibility that the documents had been ‘tampered with’. Also [journalist] was examined in the presence of and by the defence about the documents that were in her possession.

Insofar as the rights of the defence have been infringed by not being able to obtain the originals, that infringement has thus been compensated for in a way that meets the requirements of a proper and effective defence.

What significance the lack of originals has for the evidentiary question in the light of this statement of the accused, is a matter of valuation of this evidence. The Court of Appeal will return to this later.

Re c. important witnesses not examined?

The Court of Appeal states first and foremost that the issue of not examining witnesses particularly touches upon the question of the usability of statements, insofar as made by these persons, as evidence. The Court of Appeal will neither discuss this aspect, and the valuation of the witness statements - also in the light of fair trial - here, but later on in the judgment when evaluating the evidence.

Therefore, the Court of Appeal will limit itself at this point to the question of whether the fact that there are persons/witnesses who could not be examined has infringed on the rights of the defence to such an extent that the Public Prosecution Service should be denied the right to prosecute.

The Court of Appeal puts first and foremost that it would have been desirable if the requests for legal assistance on this point could have been carried out. After all, the requests had been granted by the Court of Appeal and possibly - as we do not know the statements - this would have helped to establish the truth. However, by not examining these, and the other, dismissed witnesses/persons, (from the last 2 groups mentioned earlier) it cannot be said that the investigation was so flawed that no effective defence could be conducted. The Court of Appeal has taken into account that although the defence argues that these are all
important witnesses, but not what that importance is. Therefore, neither the relevance, nor the weight of the statements of these witnesses within the whole of the results of the criminal investigation can be determined. Moreover, witnesses have indeed been examined, namely witnesses from the aforementioned first group. The defence has always been able to put questions to them before the Examining Magistrate. Also in appeal, witnesses have been examined (inter alia) at the request of the defence, and the defence has been able to ask questions at all times. In the first instance, the accused has been confronted extensively with the contents of the statements, and also in appeal, new statements have been discussed, and he has been able to comment on them.

Here, the Court of Appeal establishes that it is not a matter of violation of the defence rights as referred to in the aforementioned case law.

Re d. lapse of time and irreparable restrictions on establishing the truth?

The alleged actions of the accused took place a long time ago; when the investigation started, it was already more than thirty years ago. As is often the case in international war crimes cases, the lapse of time does not make the criminal investigation easy, and the establishment of the truth may suffer as a result.

Despite the lapse of time, quite a few (copies of) documents from the period charged have been secured in this case. It has not become apparent that witnesses could not be examined because of the mere lapse of time. With regard to the witnesses that have been examined (by the TIM, the Examining Magistrate or the Examining Justice) it has not become apparent that they were no longer able to make a proper statement. If they were not already aware of this themselves, their interrogators explicitly pointed out to them before they gave their testimony the danger of completing or reconstructing events and the importance of mentioning the source of their knowledge. Insofar as there is any influence alleged by the defence to have been exerted by other witnesses or by other information from outside, this is a factor that should be taken into account when evaluating the statement.

In the hearing in the first instance in particular, the accused stated very extensively about the actions he was accused of, in which he did not seem to be hampered by memory problems in general. On appeal, this was sometimes the case, but he was able to answer most questions adequately.

Therefore, in the opinion of the Court of Appeal, it has not become apparent that the lapse of time has impeded the establishment of the truth to such an extent that exercising the defence rights has come under unacceptable pressure.

10.4

Conclusion

Despite the lapse of time, the accused and his counsels have been able to put forward an adequate defence; they have been able to put forward what they wished against the results of the investigation, and in the first instance and on appeal, investigations were carried out at the request of the defence by examining witnesses, and by expert investigations. The accused himself has been able to make extensive statements. The fact that not all witnesses could be examined and that that which has been charged took place a long time ago, has not precluded this. Insofar as the rights of the defence have been infringed upon by not being able to dispose of the original documents from Ethiopia, this infringement has been compensated in a way that satisfies the requirements of proper and effective defence.

The grounds put forward cannot, therefore, individually or together and viewed in conjunction with each other, give cause to establish procedural errors within the meaning of Article 359a CCP, nor can they lead to the conclusion that the defence rights have been infringed upon in such nature and with such severity that there can no longer be any question of a fair trial within the meaning of Article 6 ECHR.

Insofar as the defence has argued that the principles of proper criminal proceedings have been violated, the Court of Appeal - in the absence of sound substantiation - will suffice with the observation that this has not become apparent to it.

The Public Prosecution Service is therefore allowed to prosecute.

Hereafter, as mentioned, the Court of Appeal will return to the use and valuation of the Ethiopian documents and witness statements, the latter also in the light of the ‘Keskin’ case law.

11. Applicable law

11.1

Articles 8 (old) and 9 (old) of the War Crimes Act

At the time of the acts charged, war crimes were made punishable by, inter alia, Article 8 (old) of the WOS, and the liability of the superior by Article 9 (old) of the WOS. The later recodification of the WOS into the WIM is not the result of a changed insight of the legislator into the punishability of the actions made punishable, so that the legislation at the time of the offences charged applies, except for the initial threat of the death penalty. ^[5]

Articles 8 (old) and 9 (old) of the WOS read ^[6] :

Article 8

l. A person who is guilty of violating the laws and customs of war is liable to a term of imprisonment of not more than ten years.

2. Imprisonment of not more than fifteen years shall be imposed:

1°. if the offence is likely to cause the death of or grievous bodily harm to another person;

2°. if the offence involves inhuman treatment;

3°. if the offence involves forcing another to do, not to do or to tolerate something;

4°. if the offence involves looting.

3. Life imprisonment or temporary imprisonment of not more than twenty years shall be imposed:

1°. if the offence results in the death or grievous bodily harm of another person or involves rape;

2°. if the offence involves violence in concert against one or more persons or violence against a dead, sick or wounded person;

3°. if the offence involves in concert the destruction of, damage to, rendering unusable or causing to disappear any property that belongs in whole or in part to another person;

4°. if the offence referred to in the preceding paragraph under 3° or 4° is committed in concert;

5°. if the offence is the expression of a policy of systematic terror or unlawful action against the entire population or a specific group thereof;

6°. if the offence involves a breach of a promise made or a breach of an agreement entered into with the other party as such;

7°. if the offence involves the misuse of a flag or sign protected by the laws and customs of war or of the military insignia or uniform of the other party.

Article 9

A punishment equal to that prescribed for the offences referred to in the preceding article shall be imposed on anyone who intentionally permits a subordinate to commit such an offence.

To interpret the elements to be proven of Article 8 (old) of the WOS, the judge must base himself on international law and international case law. ^[7]

11.2

The term ‘laws and customs of war’

The term ‘laws and customs of war’ in the WOS is an open term, synonymous with the law of humanitarian warfare. It refers to the norms of command and prohibition contained in the four Geneva Conventions, Additional Protocols I and II to these Conventions, other international treaties, and customary international law. ^[8]

The four Geneva Conventions

The four Geneva Conventions of 1949 provide the rules of humanitarian law in times of armed conflict (hereafter the Geneva Conventions or separately: GC I, GC II, GC III, GC IV). They oblige the Member States to criminalise and prosecute severe violations of the conventions. Each convention focuses on a category of protected persons during an armed conflict.

The Geneva Conventions apply in their entirety to international armed conflicts and in part to non-international conflicts. The four conventions contain an Article 3, which is identical for all of them, the so-called Common Article 3. Common Article 3 sets out minimum standards of conduct to be observed by the belligerents in a non-international armed conflict and reads:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat
by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the abovementioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) attacks upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

In the indictment in this criminal case, Common Article 3 of the Geneva Conventions is mentioned as part of the accusation of acting contrary to the laws and customs of war, within the meaning of Article 8 of the WOS.

The four Geneva Conventions were ratified by Ethiopia in 1969.

Additional Protocols I and II

The term ‘the laws and customs of war’, as mentioned, also refers to the Additional Protocols I and II to the Geneva Conventions (hereinafter AP I and AP II), dating from 8 June 1977.

AP I and AP II fill a number of gaps in the Geneva Conventions. AP I does this for international armed conflicts, and AP II for non-international armed conflicts. The objective of AP II is the (further) improvement of the protection of civilians and others who do not (or no longer) take part in the armed struggle.

Ethiopia did not join AP I and AP II until 1994 - after the period referred to in the indictment.

Customary international law

Finally, in addition to treaties that may be applicable in a specific case, customary international law may be used to interpret the term ‘laws and customs of war’.

Customary international law arises when two conditions have been met: 1) a general practice of states and 2) a sense of legal right or obligation (opinio juris). Custom may become law if a sufficient number of states behave in a certain way over a certain period of time (general practice of states) and they have the conviction that this behaviour is permitted, tolerated, or required by international law (opinio juris). The practice of states may consist of acts of state organs, the conclusion of certain treaties, etc.

In addition, states should not follow the practice merely because it is politically desirable, but because they believe that it is required or permitted by international law. A sense of legal right or obligation may be evidenced by express statements, contestations or reservations. It can be assumed that by concluding a treaty, states can acknowledge that certain conduct is required or permitted by international law. Decisions by international organisations may also contain an indication of the sense of legal right or obligation of states. This will depend, inter alia, on the content of the resolutions and the conditions under which they were adopted. In the event of a large number of votes against, opinio juris is less likely to be adopted. A sense of legal right or obligation is also derived from general practice. If there is no explicit evidence of a contrary sense of legal right or obligation, for example in the form of contestations by states, it can be assumed that practice implies a sense of legal right or obligation. ^[9]

11.3

The requirements for war crimes

Based on Common Article 3 and the interpretation given to it by (international) case law, one can only speak of a war crime in a non-international armed conflict (as charged to the accused) if the following requirements have been met:

(l) there is a non-international armed conflict within the territory of one of the contracting parties;

(2) the perpetrator must have knowledge of the existence of this armed conflict;

(3) the victims must belong to one of the categories of protected persons referred to in Common Article 3; that is, they must be persons taking no active part in the hostilities.

(4) there should be a close connection between the criminal offence and the armed conflict - called nexus in (international) legal doctrine and case law. The criminalisation of war crimes aiming to offer protection against crimes that are (closely) related to war. ^[10]

In the following chapters, the Court of Appeal will provide its opinion on the evidence (chapter 12) and the existence and nature of the conflict in Ethiopia (chapter 13.1). The Court of Appeal will also address the task and the position of the accused (chapter 13.2) and will ascertain the actual events (chapter 13.3). The Court of Appeal will assess whether the victims mentioned in the indictment are persons as referred to in Common Article 3 (chapter 13.4). Subsequently, it will determine whether the established actual events actually constitute violations of Common Article 3 and international customary humanitarian law (chapter 13.5).

Next, the Court of Appeal will establish whether the accused played a role in these offences and, if so, what that role was, and subsequently how this possible role should be qualified (chapter 13.6). Finally, the Court of Appeal will provide its opinion on the existence of a nexus (chapter 13.7).

12. Valuation of the evidence

12.1

The witness statements

The file contains a large number of witness statements, which are statements from eyewitnesses (whether or not they are victims of the acts charged) and hearsay statements.

Position of the defence

The defence pleaded that none of the witness statements can be used as evidence, because of the time lapse, and because of mutual contact among witnesses, because of hearsay, and because of the fact that they have read books and/or seen documentaries about the period in question or have been in the ‘Red Terror museum’ (in Addis Abeba, as the Court of Appeal understands). In addition, the witnesses have had no foslo confrontation with the accused, which according to the defence was very careless, and the examinations by the Ethiopian police were of a dubious standard. According to the defence, the statements of the witnesses were often contradictory or incomplete. Moreover, a motive for ‘revenge’ cannot be ruled out, whereby witnesses have been influenced, consciously or not, now that the accused has been designated as a perpetrator in legal doctrine, Ethiopian society, and the Ethiopian court, and has even been sentenced to death.

The opinion of the District Court

In its decision, the District Court outlined an extensive assessment framework for the assessment of the reliability of the witness statements. To this end, the District Court has based itself on case law ^[11] and legal doctrine and has explained the criteria (focus points) that have guided the District Court in this respect. The District Court has subsequently applied this assessment framework to all witness statements in the Dutch criminal file and has motivated its findings per witness. In so doing, the District Court noted that there is no indication in the file that any witness has consciously made statements contrary to the truth. Where the District Court has excluded a statement from the evidence, it involves a statement for which there is insufficient certainty as to what the witness saw and heard himself, or whether it involves the hearsay statements or statements that relate to events that took place at another time or place than what the indictment relates to.

The position of the Public Prosecution Service

The Public Prosecution Service argued on appeal that a somewhat broader assessment than that of the District Court would be preferable, in the sense that primary consideration should be given to how a witness statement fits into the criminal file as a whole. According to the Public Prosecution Service, if the statement is consistent with other pieces of evidence on important points, this statement can be (partly) useful as evidence. This does not alter the fact that according to the Public Prosecution Service as well, certain general criteria can be used in the assessment, such as those of the International Criminal Court, to which the Public Prosecution Service referred in the closing speech.

The opinion of the Court of Appeal

It is not disputed that in criminal cases the judge will always have to approach witness evidence with due care and not infrequently with the necessary caution. In criminal cases concerning international crimes, there are also some other factors that can (further) complicate the usability of witness statements. These cases often involving facts that go beyond the average imaginative powers, both because of the nature of the occurrences and the fact that it involves crimes that took place a long time ago, far outside the Netherlands and therefore also outside the own frame of reference.

The Court of Appeal notes that the criteria used by the District Court and the Public Prosecution Service in assessing the reliability of the witness statements in this case do not essentially differ from each other and in this sense also provide the Court of Appeal with a certain amount of guidance.

In the assessment of the reliability of the statements, for instance, the Court of Appeal has inter alia always taken into account the fact of there being a conflict and the fact that the witnesses belonged to the EPRP (the group that opposed the Derg, about which more later) or sympathised with it. It is possible that the statement of the witness in question is influenced by the fact that the accused belonged to the ‘other side’. The Court of Appeal is also aware of the possible traumas brought upon witnesses by the terrible events they recounted in their statements. Moreover, these are events that occurred a very long time ago.

In this respect, the Court of Appeal notes that the lapse of time does not make the statements of the witnesses by definition unreliable. This also applies to the circumstance that some witnesses had been in contact with each other, have possibly read books and/or seen documentaries about the Red Terror or have otherwise taken in information about the period and events in question. Although these are circumstances that can play a role in the assessment of the reliability of a witness, the conclusion that the statements are therefore automatically unreliable, as the defence seems to advocate, is not justified.

In this case, the Court of Appeal has assessed and evaluated the witness statements cautiously each time and has only used them if and insofar as essential elements thereof are confirmed by other evidence, such as other witness statements or documents in the file, and the witnesses have always adequately indicated their source of knowledge. The Court of Appeal has no reason to doubt the correctness and reliability of the witness statements insofar as these have been used as evidence, as these - in mutual temporal relation and coherence to one another and the rest of the evidence - are consistent in essence. Moreover, the witness statements used as evidence have been assessed, as these witnesses have all been examined by the Examining Magistrate or the Examining Justice, in the presence of the defence.

The valuation of the witness statements on appeal did not differ from that of the District Court in its sentence. This means that the Court of Appeal will base itself on the same witness statements as those in the first instance. Moreover, the Court of Appeal will use the witness heard by the Examining Justice [person 331] as evidence, as the testimony of this witness also meets the criteria mentioned above.

Insofar as the Public Prosecution Service has argued that the witness statements of [person 316], [person 325], [person 315], [person 317], and [person 326] can also be used as evidence (albeit with limitations), the Court of Appeal, together with the District Court, is of the opinion that this is not the case. The Court of Appeal acknowledges that as the investigation proceeds, a witness may be confronted with other (additional) questions than those put to him earlier by the investigative authorities, or somewhat different and/or in a different context, as a result of which a witness remembers additional details that were not discussed in an earlier phase. However, also in the light of the above, the Court of Appeal, together with the District Court, is of the opinion that the statements of [person 316], [person 325], and [person 315] as made to the DLR and the Examining Magistrate are insufficiently consistent, as certain events seem to have been mixed up with each other and the statements (possibly because of the passage of time and/or traumas) are insufficiently concrete, whereby it is also difficult to establish what the witness has seen himself or heard from others.

Regarding witness [person 317], the Court of Appeal considers that it cannot be established with a sufficient degree of certainty that this witness was in Gojjam in the same period as the accused, because of the inconsistencies in his statements on this point, which cannot only be explained by a mere misunderstanding because of the Ethiopian calendar. With regard to witness [person 326], the Court of Appeal does not follow the Public Prosecution Service in its conclusion that the inconsistencies in the statements are of minor importance, because these inconsistencies do not concern an isolated detail but very substantial events, whereby it is, moreover, not always clear what the witness has stated from his own knowledge or what he has heard from others.

The witnesses that the Court of Appeal deems usable in the submission of evidence will be discussed below, when discussing the acts charged.

12.2

Conditional witness requests from the defence

In the oral arguments, the defence has, in reference to an earlier email message dated 2 April 2022, repeatedly requested to hear a large number of witnesses (the Court of Appeal counts more than 85), but only in a conditional sense - namely if the Court of Appeal declare the charges as having been conclusively proven.

As this is the case, in view of what has been considered above, the Court of Appeal will proceed to the assessment of these requests to hear witnesses. In the request that the defence made, a distinction between persons designated as ‘yellow witnesses’ (witnesses that according to the defence appear in statements of others, which statements are explicitly contested by the accused), witnesses who referred to the ‘yellow witnesses’ in their statements, and witnesses who appear in the Ethiopian file.

The Public Prosecution Service took the position that the requests to hear witnesses should be rejected, as they are defence witnesses, the Keskin jurisprudence does not apply, and the Court of Appeal has already ruled on these requests and no changed circumstances have occurred since then.

The previous decisions

At the hearings of 29 May 2018 and 19 November 2018, the Court of Appeal already ruled with respect to a large number of witnesses that these had to be rejected (among which the vast majority of the ‘yellow witnesses’ mentioned by the defence) because of lacking interest for the defence, or because of the fact that in the absence of further identifying data - or in one case because of the refusal of the Canadian authorities to comply with the request for legal assistance - it was, in the opinion of the Court of Appeal, implausible that these persons could be heard within an acceptable timeframe. With regard to the witnesses who referred to the so-called ‘yellow witnesses’, the Court of Appeal judged, based on the necessity criterion, that these requests to hear witnesses should be rejected as these witnesses had already been heard by the Examining Magistrate in the presence of the defence. The Court of Appeal has ruled the same with regard to another group of witnesses as mentioned in the minutes of the hearing of 29 May 2018 under item 7.

On 8 July 2021, the Court of Appeal subsequently rejected the requests regarding the witnesses residing in Ethiopia (partly those from the Ethiopian criminal file) and witness [person 332] (after this previously having been granted), as it was not possible to implement the requests for legal assistance on this point. The decision on the request for examination of the other witnesses (previously rejected by the Court of Appeal), in which the defence invoked the Keskin jurisprudence, was stayed by the Court of Appeal until after the substantive proceedings. The Court of Appeal will decide this now.

Assessment of the requests

From the request of the defence, it appears that there are prosecution witnesses and defence witnesses, whereby the defence did not specify per witness to which category they belong. Where prosecution witnesses are involved, ECHR case law implies, in brief, that in certain cases the interest in calling and examining the witness should be presupposed. In the case of defence witnesses, if a sufficiently substantiated request is made to examine a witness, the relevance of a statement made by that witness must be taken into account when deciding whether the witness should be examined. For both categories of witness, the rule applies that if there are sufficient grounds in itself for examining the witness, the witness may not be summoned because of ‘the witness’s unreachability’. However, in that case the judge will have to assess whether, given the absence of the possibility to question (or have questioned) that witness, the procedure as a whole complies with the right to a fair trial guaranteed by Article 6 of the ECHR. ^[12]

The Court of Appeal considers with respect to the witnesses whose examination was initially granted by the Court of Appeal that the request for legal assistance did not result in the witnesses being heard by the Examining Justice in the presence of the defence. In addition, the defence did not provide any information nor did any other information come forward from which it could be concluded that a new request for legal assistance would lead to the hearing of the witnesses in question within the foreseeable future. Moreover, considerable length of time has passed since the Court of Appeal granted the requests to hear witnesses. ^[13] Furthermore, the Examining Justice has, by means of official reports of findings of 8 February 2022 and 22 February 2022, recently reported on the (attempted) communication with the Ethiopian authorities in connection with the execution of the request for legal assistance; these reports state that the staff member of the Dutch embassy there, Ms [name of staff member], characterises the current state of affairs as ‘flogging a dead horse’.

All this leads to the conclusion that there is still no genuine expectation that the request for legal assistance can be implemented.

With regard to the witnesses whose statement was used as evidence in the first instance as well as on appeal, the following applies. In line with the judgment of the ECHR in the Keskin case, and the case law of the Supreme Court afterwards, the interest in calling and examining these witnesses should be presupposed, but only when the request concerns a witness in respect of whom the defence has not yet been able to exercise the right to examine. However, the witnesses in question have all been heard by the Examining Magistrate or the Examining Justice, whereby the defence had the opportunity to ask questions. This being the case, the Court of Appeal is of the opinion that the necessity of examining these witnesses - partly in view of that which has been put forward for that purpose and the fact that there are no new developments with regard to these witnesses – is not apparent.

Finally, with regard to the other requests to hear witnesses who have already been rejected by the Court of Appeal, the Court of Appeal is of the opinion that the grounds for rejection as mentioned in the aforementioned decisions still apply, as no changed circumstances have occurred.

The above entails that the Court of Appeal rejects the request of the defence in its entirety. In its considerations, the Court of Appeal has taken into account the question of whether a possible conviction of the accused would be in accordance with the requirements of a fair trial as referred to in Article 6, Paragraph 1, ECHR (‘the overall fairness of the procedure’) - even in view of the fact that the defence sometimes lacked the possibility to question a witness (or have him questioned), also when the request for this purpose was initially granted. The Court of Appeal has answered that question in the affirmative because only statements of witnesses in respect of whom the defence has been able to exercise the right to examine are used as evidence.

12.3

The documents from Ethiopia and the signature of the accused

Introduction

The defence has pleaded that the accused was in no way involved in the acts charged. The documents that are in the file with the name, signature and stamp of the accused cannot serve as evidence. The accused disputes that he signed these documents. The authenticity of the documents has not been sufficiently established. Besides, it cannot be ruled out that the signatures were inserted by third parties at a later stage.

The original file

In this file, as considered above, there are (copies of) 41 pages with Amharic text, originating from the criminal proceedings against the accused in Ethiopia. These were received from the Ethiopian Ministry of Justice within the framework of the execution of an international request for legal assistance in 2013 (see p. 907). These written documents have been translated and a report of findings has been drawn up on their contents (see p. 1004 et seq.).

From the translation of the Amharic pages, the Court of Appeal deduces, just like the District Court, that these documents concern decisions on sentences imposed on persons. Furthermore, these documents contain the name of the accused, and often a signature and stamps detailing the position of the accused.

In the aforementioned official report of findings, a substantive connection between the various pages and sections is outlined. The job descriptions of the accused are qualified as ‘Chairman of the Coordinating Committee of the Revolutionary Campaign of Gojjam province’ and ‘Permanent representative of the Derg in Gojjam province’.

These documents include the following:

• A letter (see p. 922, with a translation on p. 970) dated 14 August 1978, signed with the name [name of accused] and a signature, permanent representative of the Derg in the province, addressed to the head of the Gojjam province prison, Debre Marcos, with as an annex a list of names of persons against whom ‘revolutionary measures’ are to be implemented (see pp. 923-925, with a translation on pp. 971-973) with the notification that confirmation of the implementation of the order is expected;
• A reply to this letter (see p. 926, with a translation on p. 974), dated 16 August 1978, from the head of the prison in Gojjam province, addressed to [name of accused], permanent Derg representative in Gojjam province, which confirms that ‘revolutionary measures’ have been taken against 73 persons, that three persons had previously been killed during their escape from prison and that one of the prisoners had escaped. Moreover, it confirms that five prisoners are in Metekel prison;
• A letter from 16 August 1978 to the prison of Metekel province, stating that revolutionary measures should be implemented against five prisoners (see pp. 931-936, with a translation on pp. 979-990), signed with the name [name of accused], permanent Derg representative in Gojjam province, and a signature;
• A reply to this letter (see p. 927, with a translation on p. 975), dated 17 August 1978, from [person 328], addressed to [name of accused], permanent Derg representative in Gojjam province, which confirms that the order given in writing and ‘via the telephone call’ to take ‘revolutionary measures’ against the five persons was carried out;
• An exchange of letters (see pp. 948-949, with a translation pp. 1002-1003) dated 17 August 1978, from the head of the prisons in Gojjam province, addressed to Lieutenant [name of accused], permanent Derg representative in Gojjam province, that following order number 476/11, on 17 August 1978, the revolutionary measure was taken against [person 78]; Two lists, one undated and marked

New documents on appeal

As mentioned before, 22 documents were added to the file on appeal, including most of the documents mentioned above, but photocopied more clearly, and other, similar documents. These are documents bearing the name and (stamps bearing the) position of the accused and provided with a signature.

The experts

Documents with signatures were examined by experts. In the first instance, the District Court made use of the report by handwriting expert W.C. de Jong dated 4 March 2016 and the examination of the expert before the Examining Magistrate.

The expert delivered his report on 4 March 2016. The expert marked the disputed material as XI and X2, the diplomatic passport supplied as (undisputed) comparative material as VI, and the military identity card as V2.

The expert explained that, because copies had been provided to him, some characteristics could not be reliably assessed. However, the complexity and distinctiveness of the characteristics that can be assessed in the disputed signatures are sufficient to ascertain the authorship of the signatures. The disputed signatures and the reference signatures were assessed and compared on different characteristics. The disputed signatures show clear similarities with the reference signatures in all characteristics.

The expert report concludes that the results of the investigation are more probable if the disputed signatures, XI and X2, are authentic signatures originating from the author of signatures VI and V2 (hypothesis 1) than if they originate from a different author and are the products of imitation (hypothesis 2), with the expert noting that one of the higher degrees of probability thus does not apply here.

The expert was examined by the Examining Magistrate on 28 June 2016. The defence was present and was able to examine the expert about his analysis and conclusions. The expert confirmed that he cannot say with certainty that the disputed signatures are not an imitation. The imitation hypothesis cannot be considered probable. His conclusion is that signatures XI and X2 are authentic signatures, but he cannot establish that with certainty, and that is a consequence of the quality of the investigative material.

On appeal, handwriting analyses were repeated, and the disputed signatures were examined by experts W. de Jong, P.L. Zevenbergen and C. Verhulst.

Expert De Jong performed additional analysis into the authorship of two signatures on two lists, one dated 16 August 1978 with 211 names (see pp. 937 up to and including 943) and one dated 24 August 1978 with 123 names (see pp. 944 up to and including 947, translations on pp. 991 up to and including 997, and 998 up to and including 1001, respectively). De Jong again compared the signature on these documents with the accused’s signatures on his original passport and identity card. De Jong’s conclusion is that the investigation results are more likely if the disputed signatures are reproductions of authentic signatures of the accused, than if they were not produced by the accused ^[14] . The question of whether they are indeed the accused’s signatures cannot be answered.

Expert Verhulst analysed the disputed signatures and analysed the same material as De Jong did in the first instance. He holds that the findings of the investigation would be somewhat more probable if the disputed signature were an authentic signature of the person concerned than if the disputed signature were a forgery or imitation of the signature of the person concerned. He makes this statement in relation to the document that De Jong marked as X2. ^[15] He could not give an opinion about the signature on document X1.

Expert Zevenbergen also analysed the same material as De Jong in the first instance and comes to the conclusion that the quality and quantity of both the material offered for analysis and the comparative material do not allow for a forensic writing and document analysis to be carried out resulting in a conclusion that would be sufficiently convincing and reliable. This also means that it is not possible to say whether or not the disputed signatures are the product of applied ‘artful tricks’ (such as cutting, pasting, printing, photocopying or editing with a photo editing programme). However, setting aside the objections and limitations for the use of the material made available, the number, nature and quality of (the combination of) the graphological similarities, which are to be qualified as essential, without graphological differences, make it much more likely that the disputed signatures are genuine signatures of the person who also produced the material for comparison than that the disputed signatures were produced by any other person. ^[16] This conclusion can only be granted indicative significance
.

The expert also found that, with regard to both disputed signatures, no imitation features could be observed, which is a severe indication in favour of the authenticity of these signatures. No traces of imitation were found.

During the appeal hearing, the defence pleaded that the report and the statement made by expert De Jong during the examination before the Examining Magistrate should be excluded from the evidence because this expert could not be deemed reliable. In support of this argument, reference is made to certain tentative phrasings that the expert apparently used in his report and that did not seem to correspond to his firmer conclusions during the examination before the Examining Magistrate. It is also argued that the expert in his report wrongly based himself on the conclusion that it is ‘more probable’ that the signatures came from the same person, whereas the expert seemed to have meant that it is ‘somewhat more probable’. With regard to the other reports, including the supplementary report by De Jong, the defence notes that there is a great difference of opinion between the analysts and that the reports should therefore be used with restraint. The report by De Jong and his statement before the Examining Magistrate should be completely excluded from the evidence.

The opinion of the Court of Appeal

First of all, the Court of Appeal will rule on the reliability of the analysis conducted by expert De Jong. This expert drew up two reports and was examined before the Examining Magistrate. The expert is registered in the Netherlands Register of Court Experts in the field of forensic handwriting analysis. All experts in this register are tested against objective criteria for quality, reliability, and competence. In that which the defence has brought forward, the Court of Appeal, in view of the contents of both reports and the explanation given by the expert before the Examining Magistrate, sees no reason to doubt the expertise and the reliability of the investigation carried out by this expert. All the more because the other experts, including those requested by the defence, have reached more or less comparable conclusions based on the same investigation material. Insofar as the defence questions the statement of the expert before the Examining Magistrate, the Court of Appeal observes that the defence has been present at that examination and has been given every opportunity to voice its doubts directly to the expert. The request to exclude the report and the witness statement of De Jong from the evidence will therefore be rejected.

As indicated before, the Court of Appeal regrets, together with the defence and the Public Prosecution Service that, even after attempts by the Public Prosecution Service to that end, the originals of the documents investigated have not been obtained. However, the Court of Appeal does not consider it plausible that further analysis of the originals would lead to a different conclusion regarding the signatures. Although they all point out the limitations of the investigation, the analysis by the experts, as has so far been possible and as mentioned above, do not offer any lead to that effect.

Furthermore, although the accused has denied having signed the letters, he has also failed to provide a plausible explanation for the signature with his name and position on the letters. Nevertheless, the Court of Appeal will investigate whether an alternative scenario is plausible.

Alternative scenario?

Insofar as the accused wanted to imply that the signatures must have been forged by someone else in Gojjam at the time, the Court of Appeal considers, together with the District Court that this is extremely improbable. Not only because the replies to the letters, namely the confirmations of the revolutionary measures, were sent to the accused’s office, but also because according to the letter of the head of the prison in Metekel of 17 August 1978, the order written earlier to take revolutionary measures with regard to 5 persons was also given by telephone. In addition, De Jong considers imitation improbable and also expert Zevenbergen has concluded that the lack of imitation features is a substantial indication in favour of the authenticity of the signatures.

Insofar as the intention is to suggest that the contents of the letters and the signatures on the letters were not forged until much later by editing at the time of (and for the benefit of) the criminal proceedings against the accused in Ethiopia, the Court of Appeal considers the following. As mentioned, the signatures on two of these letters have been examined by three handwriting experts. Although they have not been able to rule out the possibility of editing, this seems very improbable to the Court of Appeal. The disputed signatures on the (many, certainly after the addition of new, also disputed documents in appeal) documents all differing slightly from each other, which makes forgery by editing highly improbable.

Finally, the Court of Appeal rejects the possibility of mistaken identity claimed by the defence. The fact that in Ethiopia there may also have been other persons with the name [name of accused] is insufficient for that; moreover, the accused stated during the appeal hearing that there was no other [name of accused] with the Derg.

Alternative scenarios have therefore not become plausible. As the Court of Appeal has no other reasons to doubt the authenticity of the signatures, the Court of Appeal, partly in view of the witness statements and the (other) findings with regard to the tasks and the position of the accused (see also below), concludes that the accused signed the letters with names and lists.
The fact that no original documents were obtained and that therefore they could not be examined does not alter this conclusion.

As there is no reason to suppose that these came from someone other than the accused, the aforementioned conclusion applies not only to the documents that were examined, but also to the other letters and documents from Ethiopia, with the accused’s name, position and signature. The Court of Appeal attributes these as well to the accused.

12.4

Requests for further examination of the documents from Ethiopia

The defence has conditionally requested additional examination of the documents from the Ethiopian criminal file, including the documents as mentioned on the ‘list of documents’. This request did not contain any further substantiation of what kind of examination should take place, nor of who should do it. In view of this lack of substantiation, the Court of Appeal sees no necessity to order further examination.

12.5

The report of expert Abbink

The Public Prosecution Service has taken the position that the expert report by Prof. Dr G.J. Abbink dated 29 April 2016 can be used as evidence, in contrast to what the District Court ruled. It is true that Abbink made remarks about the accused and his guilt, but that is no ground to disregard Abbink’s report as a whole as for the most part it deals with other subjects than the role and guilt of the accused. Abbink’s report can therefore be used as evidence at least in relation to those subjects, and the Public Prosecution Service requests the Court of Appeal to do so.

In this respect, the Court of Appeal considers the following.

The Court of Appeal is of the opinion, together with the District Court, that no distinction can be made as to the extent to which the expert has only reported and stated about what his science and knowledge teach him, or that he has also (in part) based his findings on what he has read about the accused in the criminal file that was made available to him. As he has also expressed an opinion - whether or not based on the documents in the file - about the question of guilt, the expert can no longer be regarded as objective. The fact that the report only partly (explicitly) concerns the accused and his guilt cannot alter this opinion.

Therefore, the Court of Appeal will not use the report and statements of this expert as evidence.

12.6

Fair trial

Finally, in this section, the Court of Appeal will consider the question of whether the points put forward by the defence together (i.e. to substantiate the inadmissibility of the Public Prosecution Service, and the - rejected - conditional requests) still allow the proceedings to meet the requirements of Article 6 ECHR.

Here, the Court of Appeal has recognized that witnesses could not be examined, and that originals of documents from Ethiopia were not obtained. The facts involved go far back in time and not all witnesses remember everything. The accused too had to reach far back in his memory in his statements and his defence.

On the other hand, both in the first instance and on appeal, witnesses have been heard at the request of the defence, the defence has, in the process, been able to exercise its right to examine, and only those witnesses will be used as evidence. Documents in the file have been subjected to expert opinions (also) requested by the defence. By adjusting the location of the hearing, the Court of Appeal has accommodated the medical situation of the accused in order to give him every opportunity to give his statement during the hearing. Accordingly, the accused and his counsels have been able to raise what they wished against the results of the investigation. The fact that offences charged took place a long time ago in no way impeded this. The Court of Appeal has taken alternative scenarios into consideration and investigated them.

Therefore, the Court of Appeal deems it justified to conclude that the procedure ‘
as a whole ’ has been fair. This was the case both in the first instance and on appeal.

13. Assessment of the charges ^[17]

13.1

The existence and nature of the conflict

13.1.1

Armed conflict

As considered above, international humanitarian law applies when there is an armed conflict within the territory of one of the contracting parties. In order for a perpetrator to be convicted of a war crime, he must also have knowledge of the existence of this armed conflict.

Assessment framework

A distinction is made between international armed conflicts between states, and non-international armed conflicts within a state. The rules for these two types of conflicts differ in certain respects. As there is no reason to connect the charges with a conflict between Ethiopia and another state, the Court of Appeal will merely ascertain whether there is a non-international conflict.

It should be noted that the determination of whether there is a non-international armed conflict is to a large extent a factual assessment that depends on the circumstances of the case. ^[18]

Over the years, the ICTY in particular has elaborated the concept of ‘non-international armed conflict’ in its case law and developed criteria for assessing whether it is pertinent. The ICC also uses these criteria and, with reference to the ICRC comments, has found that they are considered authoritative by states and have become a general practice among states. ^[19]

In the first place, the intensity of the conflict must be of a level of ‘protracted armed violence’, and secondly, the armed groups involved must be sufficiently organised. ^[20]

Factors that may be important in determining the intensity of a conflict include the number, duration, and intensity of individual confrontations; the type of weapons and other military equipment; the amount and calibre of ammunition fired; the number of persons, and the type of armed groups participating in the fighting; the number of victims; the extent of material damage; and the number of refugees from the combat areas. The involvement of the UN Security Council can also be an indication of the intensity of the conflict. ^[21]

Although the violence does not have to be continuous and uninterrupted, the threshold of ‘protracted armed conflict’ is not met if there are internal disturbances and tensions, such as riots and isolated and sporadic cases of violence. ^[22]

The following factors may be relevant in determining the degree of organisation of armed groups: the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of a headquarters; the circumstance in which a group controls a particular territory; the possibility to provide the group with access to weapons and other military material, recruitment, and military training; the ability to plan, coordinate and conduct military operations, including troop movement and related logistics; the ability to determine a unified military strategy and the use of military tactics, and the ability to speak with one voice and to negotiate and conclude agreements such as a ceasefire or a peace pact. This is not an exhaustive list and none of the factors are decisive in themselves. A state is presumed to have armed forces that meet the requirement of organisation. ^[23]

Once a non-international armed conflict has been ascertained, international humanitarian law applies to the entire territory under the control of a party involved in the conflict, whether or not there is fighting there. ^[24]

A non-international armed conflict in Ethiopia?

Before answering the question of whether there was a non-international armed conflict in Ethiopia in the period referred to in the indictment, the Court of Appeal will briefly discuss relevant developments in Ethiopia in the years prior to it.

13.1.2

Relevant developments in Ethiopia

as of 1974

In 1974, the army seized power in Ethiopia. The group of soldiers who ascended to power formed ‘the Derg’, Amharic for (literally:) a committee of equals. The Derg initially consisted of 126 members. On 12 September 1974, the Derg issued a proclamation deposing emperor Haile Selassie and transforming the Derg into the Provisional Military Administrative Council (hereinafter PMAC). Subsequent proclamations suspended the constitution, dissolved parliament, and banned strikes and demonstrations. ^[25]

During the first years of the revolution, land and businesses were nationalised by the Derg, and with the formation of peasant and neighbourhood associations
(urban dwellers’ associations ), also referred to as kebeles, the administration changed as well. Marxist-Leninist education was made compulsory. Schools were closed and students were sent into the countryside within the framework of the National Campaign for Development. ^[26]

In November 1974, the PMAC announced that it had shot dead its chairman, Aman Andom, and had executed a group of about sixty detainees consisting of both senior officials of the former imperial regime, and its own members. ^[27]

On 3 February 1977, Vice-President of the Derg, Mengistu Haile Mariam, staged a coup and, with the assassination of Derg President Teferri Banti and 3 members of the Standing Committee, gained full power. ^[28] In November 1977, Major Atnafu Abate, Vice Chairman of the PMAC was executed along with 46 officers. ^[29] Thus, by 1978, the Derg numbered a mere 80 members.

There were various left-wing (counter)movements, such as the Ethiopian People’s Revolutionary Party (hereinafter EPRP) and the All-Ethiopian Socialist Movement (hereinafter Meison). Meison initially aligned itself with the Derg camp, but in the course of 1976, it also became one of the regime’s opponents. ^[30] A more aristocratic independence movement was formed by the Ethiopian Democratic Union (EDU). ^[31] In 1975 and 1976, armed EDU units controlled much of the Gondar region, especially along the border with Sudan. In addition, the Derg had to contend with the Eritrean independence movements, Eritrean Liberation Front (ELF) and Eritrean People’s Liberation Front (EPLF), which waged a joint battle against the Ethiopian army from January 1975 onwards. The EPRP and EPLF also had contacts with the Tigray People’s Liberation Front (hereinafter TPLF), a left-wing student movement founded in 1975, which gained increasing control of Tigray province in the following years. ^[32]

13.1.3

Parties to the conflict

The EPRP/EPRA

The EPRP was, as mentioned, a left-wing opposition movement and was founded in 1972. Military training of EPRP members started in 1973, and by 1975 the core of the army consisted of 30 people armed partly by the Eritrean People’s Liberation Front (EPLF) operating from Tigray province. ^[33]

From June 1974, the EPRP had a central leadership, a political programme and published a periodical entitled ‘Democracia’. In addition to a central leadership, the EPRP was organised by geographical zone. These so-called inter zonal committees were granted the power to make independent decisions, and each inter zonal committee had a member of the central committee assigned to it. ^[34]

At the first congress of the EPRP in 1972, the decision was made to form an army. This army is known as the Ethiopian People’s Revolutionary Army (EPRA). The EPRA had great appeal among the youth and, from early 1977, its membership grew rapidly. In March 1977, the EPRA base in Assimba numbered over a thousand men, those in Tigray and Begemidir over fifteen hundred. ^[35] Ghelawdewos Araia also speaks of growth of the EPRA in late 1977 and early 1978. ^[36]

The increase in size of the EPRA, together with a large increase in arms supplies through the foreign committee of the EPRP in the same period, made reforms necessary. A Rectification Movement led to the creation of the EPRA’s own statute, which described the rights and duties of EPRA members, as well as the basic principles (democratic centralism, central leadership). A new command structure was also established: from then on, the EPRP Central Committee commanded the armed forces and provided operational guidance through the Military Committee
. The statute also provided for a military tribunal. ^[37]

In addition to an army, the EPRP had Urban Armed Wings, also known as Urban Defence Wings, which in the organisational structure were under the Military Committee’s authority. ^[38] In 1977, each Zonal Committee had between four and six Urban Military Units under its command. In some cases, even eighteen units
. In Addis Ababa, between fifty and sixty Urban Military Units were active, with a total of 225 to 250 members. ^[39] The command structure was as follows: at the top there was the Central Committee, below that the Military Committee, below that the Rural and Urban Armed Wing Leadership Committee, and below that the Operations Committee. The Rural and Urban Armed Wing Leadership Committee was responsible for implementing and following up on decisions made by the EPRP Central Committee regarding military activities in the city. The Operations Committee consisted of qualified and professional military activists. ^[40]

The State

The EPRP fought against the Derg, the then (military) government in Ethiopia, and vice versa. The Derg had the government army at its disposal, which in the 1974-1977 annual report of the Dutch embassy in Addis Ababa was estimated at 80,000 men and according to the 1977-1978 annual report had grown to 400,000 men. ^[41]

In August 1977, the National Revolutionary Operations Command (NROC) was established (Kiflu Tadese refers to this body as the National Revolutionary Campaign Council (NRCC)). Proclamation 129/1977 placed all military units under the command of the NROC. ^[42] Mengistu et al. appointed the members of this body, which thus commanded the army, police, and militia. ^[43]

Mengistu also set up a battle group, known as Nabalbal (‘Flame’), which also functioned as a special resistance fighting unit. The military command had a parallel structure of both executives and (left-wing political) commissioners, consisting only of Mengistu loyalists. Through this political influence, he strengthened his grip on the military. Opponents, including within the Derg, were efficiently eliminated. ^[44]

In addition to the army, the (military secret) police, the security service (‘the Security’), and the Nebalbal units, the implementation of the Red Terror (see below) also involved various squads. The kebeles had their own ‘Revolutionary Defence Squads’, with which they effectively supervised and monitored the residents of a kebele. The kebeles were gradually given far-reaching powers to track down and arrest people. Then there were the party executives and squads, the best known of which was the Seded (Seded means raging fire). ^[45]

Interim conclusion

In view of the above, the Court of Appeal is of the opinion that the EPRP, with the military branch EPRA and the Urban Armed Wings, was a sufficiently organised armed group during the relevant period. The same applies to the Derg.

13.1.4

Armed struggle

Hostilities on the part of the Derg

The Derg declared the EPRP an enemy of the revolution in September 1976. ^[46] From that moment on - also called the beginning of the War of Annihilation - thousands of EPRP members and sympathisers were imprisoned and executed by the government. ^[47] The extreme violence with which the Derg responded to (inter alia) the EPRP is known as the Red Terror. Late 1976, the Derg leaders ordered the armed
kebeles ‘to wipe out counter-revolutionaries ’
. ^[48]

Through search and destroy campaigns, the government was able to track down and eliminate or imprison EPRP militants who had gone underground and to disarm the civilian population. Bahru Zewde writes:

‘
These exercises formed a dress rehearsal for the full-blown Red Terror, in which thousands of the regime’s opponents were brutally murdered on the streets. Directed primarily against the EPRP this licence to kill subsequently engulfed other opponents of the regime like the EPLF and TPLF — as well as, ironically, Ma’ison, once a rift was created between that organization and the Darg .’ ^[49]

After the coup of 3 February 1977, Mengistu became commander-in-chief of the armed forces. From that moment on, the violence intensified. ^[50]

In a speech on 17 April 1977, Mengistu called for a fight against the enemies of the revolution and smashed bottles filled with a red liquid on the ground. ^[51]

In late April 1977, in anticipation of May 1 demonstrations, persons accused of EPRP sympathies were murdered in large numbers throughout the country - including in Gojjam. It was estimated that about a thousand children had been killed in Addis Ababa, their bodies left lying in the streets. Families of the dead were forbidden to mourn. The mass killings were based, inter alia, on the promise ‘for every revolutionary killed, a thousand counter-revolutionaries executed’. There were also mass arrests of alleged EPRP supporters. Relatives who, as was customary, brought food and drink to the prison were meant to understand that the person concerned was dead if they were sent away and told not to bring anything anymore. Although around March 1978, the most massive killings were over, imprisonment and execution continued, particularly also in the province. ^[52]

The Red Campaign was launched on 27 June 1977 with a 4.5-hour parade in Addis Ababa of about 60,000 men, of whom more than 50,000 were militia, and with Mengistu concluding his speech with the words: ‘
the EPRP, EDU, and the Eritrean secessionist reactionary organisations will be crushed’ . ^[53]

Alleged opponents of the Derg had to publicly confess their EPRP membership. This was done under the threat of death during so-called exposure meetings, i.e. mass meetings. Not revealing oneself and being reported by someone else, meant that execution would follow. At schools, students and teachers were arrested during such meetings. Parents and children were forced to report each other. ^[54]

In November 1977, as mentioned, Major Atnafu Abate, Vice-President of the PMAC was executed along with 46 officers. Atnafu was accused of siding with the EPRP and the EDU. ^[55]

Letters and telegrams from the Dutch Ambassador mentioned above, dated October, November and December 1977, tell of armed actions to drive EPRP members out of their hideouts in Addis Ababa, of cleansing operations involving the killing and execution of counter-revolutionaries belonging to the EPRP. ^[56] The Embassy’s annual report states that, as of December 1977, hundreds of corpses were left along the streets of the capital in the early hours of the morning as a deterrent to the population. ^[57]

Hostilities on the part of the EPRP

From September 1976, primacy was also placed by the EPRP on armed struggle. The following text appeared in
Democracia in the second week of September 1976:

‘Understanding the nature and the last ditch efforts that the fascist will make and understanding that in the final analysis the decisive role would be played by a force supported by the people, it has been quite a
while since the EPRA was formed and engaged in an armed struggle. In order to counter the anti-EPRP campaign, the organization will pay more attention to this wing.’ ^[58]

Thus, the onset of the Red Terror was accompanied by attacks on prominent members of the Derg by the EPRP with the help of the EPRA; examples include the failed attack on Mengistu on 23 September 1976 (which is attributed to the EPRP), and the murder later that month of Meison prominent Feqre Mare’d. ^[59]

During the last months of 1977, the EPRA ambushed the 217th Nebalbal regiment in Begedemir, capturing officers and stealing weapons and ammunition. ^[60] In February 1978, the EPRA carried out an operation in Tigray in which Nebalbal officers were killed. ^[61] In July 1978, an EPRA operation took place in the Begedemir area against a Derg military camp, which was destroyed but left many EPRA fighters dead. ^[62] However, EPRA membership grew again thanks to influxes from the urban areas where people were fleeing the Red Terror. This enabled the EPRA to deploy contingents in three regions, each of which had its own command structure. In December 1978, the R-3 Command was still able to carry out an attack on Addis Zémen. ^[63] The EPRP/EPRA also received weapons from the ELF, ^[64] and the EPRA also carried out a number of military operations together with the EPLF. ^[65]

The Urban Armed Wings carried out attacks and robberies in August and September 1976 to obtain weapons, carried out an attack on members of Meison - including Mengistu’s right-hand man - and carried out the failed attacks on Mengistu. ^[66] EPRP members carried out attacks and murders in 1977. Several permanent secretaries of various ministries and about thirty kebele leaders were killed by the EPRP. ^[67]

The hostilities described above are corroborated by the statements of the accused. At the hearing in the first instance, he stated that, at the time that he was in Gojjam, Gojjam and Gondar were conflict areas. The EPRP had great influence, and the accused called the EPRP ‘an indescribably violent organisation in those days’. His photo album is full of friends and comrades who were liquidated by the EPRP. ^[68] The EPRA/EPRP base in Metekel (Court of Appeal: in the west of Gojjam) was very threatening to the whole nation because of its location next to Sudan. ^[69] The accused stated furthermore that at that time there was also heavy fighting in the North, in Eritrea. The only major road from Addis Ababa to the North went through Debre Marcos in Gojjam. The EPRP had blocked this road so that the Derg troops could not move north. The military unit that had cleared the road went to Metekel at the request of the accused to dismantle the EPRP base there. ^[70] This dismantling was instrumental in reducing the power of the EPRP in Gojjam, according to the accused. ^[71]

On appeal as well, the accused has mentioned the violent nature of the EPRP. He stated that thousands of people were killed by the EPRP. The EPRP had to be fought against because they had taken up arms and had vowed to remove the Derg from power by force. ^[72]

Accused’s knowledge

From the above statements, it is sufficiently evident that the accused was aware of the armed conflict between the Derg and the EPRP.

Conclusion

From the above, it transpires that there was persistent and intensive violence in Ethiopia prior to and in the period referred to in the indictment. The armed conflict took place between the Derg (the government) on the one hand and the domestic opposition group EPRP on the other. The violence between the Derg and the EPRP can definitely be called intense.

The Court of Appeal therefore concludes that in the period referred to in the indictment, in Ethiopia, there was a non-international armed conflict within the meaning attributed in the expression in humanitarian law of war and that Common Article 3 is applicable to it.

Finally

The Court of Appeal deems sufficient the observation that there was an armed conflict between the Derg and the EPRP and will - in contrast to the District Court - not also examine whether there were any other armed conflicts between the Derg and other groups. The Court of Appeal sees no reason to do so, partly in view of the acts that have been charged.

As appears from the above, in contrast to what the Public Prosecution Service argued, the Court of Appeal did not include the book ‘Love of Assimba’ by Kahsay Abraha Bisrat in the above, which had been added to the file by the Court of Appeal, because – to also establish the way in which the EPRA was organised - there was no reason to do so, whereas the defence objected to its use.

13.2

The role and position of the accused

The offences that the accused has been charged with relate to actions in the period that the accused was stationed at the Derg in Gojjam. Before the Court of Appeal proceeds with the discussion of these offences, it will first establish, as an intermediate step, which position and role the accused held.

The position of the accused in Gojjam

The fact that the accused was one of the members of the Derg is not in dispute. There was no other [name of accused] who was a member of the Derg. After training in Moscow, he was sent to Gondar around 1976 and later to Gojjam, where he was stationed as provincial representative of the Derg in 1977/1978. There he was - as the sole representative of the Derg - chairman of the revolutionary coordinating campaign committee (hereinafter also the campaign committee). At the appeal hearing, the accused confirmed the above - which the District Court had established earlier - although he also said that he did not remember exactly when he was in Gojjam.

In addition, the accused held the position of substitute member of the Central Committee at a national level within the Derg. ^[73]

A description of the tasks and powers of the campaign committee can be found in proclamation 177/129 issued by the Derg. The text of this proclamation was included in the Ethiopian newspaper
Negarit Gazeta of 27 August 1977. ^[74] The accused has declared himself to be (re)acquainted with the proclamation. ^[75]

This proclamation, available in the file only in English, mentions the institution of a so-called National Revolutionary Operations Command, headed by the Derg chairman. Article 12 of the proclamation stipulates that a Revolutionary Operations Coordinating Committee will be set up per region (the Court of Appeal understands: the campaign committee). Article 14 deals with the powers and tasks of this committee and includes inter alia: to follow up anti-revolutionary and anti-unity activities. Seen from the perspective of the Derg, this can, in the opinion of the Court of Appeal, be understood as taking action against the political resistance of the opposition.

Although the proclamation also mentions a Sector Command, with a sector chairman to be appointed by the government, this was not provided for Gojjam, the accused stated at the appeal hearing. The accused, as chairman of the campaign committee, was therefore the sole representative of the Derg in Gojjam.

In case of violation (in any way) of the proclamation, as is evident from article 25, punishment followed: anyone who disobeyed orders arising from the proclamation or tried to evade these orders, or who incited someone else to such disobedience, was punished with imprisonment of not more than five years and in more severe cases with life imprisonment or the death penalty.

The accused further stated that the committees in the districts took measures against anti-revolutionary movements. One of the tasks in the proclamation was to take action against the anti-revolutionary groups when they sabotaged or threatened the unity of the country. By anti-revolutionary groups, several groups are meant, including EPLF, TLF (the Court of Appeal understands: TPLF), EPRP, OLF, ONLF, SLF, and so on. ^[76]

On appeal, the accused stated about his tasks as chairman of the revolutionary coordinating campaign committee that if the EPRP or another group in Gojjam committed violence, he would discuss this with the police or another municipal organisation. He had a coordinating position and saw to it that something was done against fighting. His role was one of surveillance, which meant that he surveilled the whole political atmosphere of the region, including the way in which the EPRP and other organisations were combatted. ^[77]

About the Central Committee, of which the accused was a deputy member, he stated that it was responsible for the organisation of a (new) socialist party. The file does not contain much information about this committee, other than that it was the supervisor of the Standing Committee, which can be considered as a kind of executive power, consisting of 17 Derg members. ^[78]

Furthermore, witness [person 333] can testify to the fulfilling of the position of and by the accused. In this respect, the Court of Appeal considers him a valuable witness because, at the time, he was the chairman of a campaign committee just like the accused, but in another region (Illubabur). He therefore also worked for the Derg and apparently knew the accused well, because he declared to have worked together with the accused for 17 years. He stated about the accused that he, just as Mengistu, was a member of the radical group within the Derg. ^[79] There were in fact two groups within the Derg, which had a difference of opinion on political issues and on the question of whether conflicts should be solved with violence. The extremists believed that (inter alia) the EPRP should be destroyed by force. ^[80]

The accused was an active participant during meetings and he was in favour of radical changes, according to [person 333]. The accused was sent out to perform tasks and was close to the leader. Extremist members of the Derg were sent to places where there was a lot of resistance to the government. The accused was therefore sent to Gojjam. The fact that there were many opponents in Gojjam was spoken of during meetings. ^[81]

In Gojjam, according to [person 333], the accused was in charge of the political leadership in the capacity of both chairman of the revolutionary campaign committee and representative of the Derg. He had to control the political situation there. The revolutionary campaign coordinating committee received reports from the provinces or from various agencies of the state region about the security situation, about people who disturbed the security, and then the committee reached decisions on that basis. Various announcements had been made by the government. The committee had to ensure that the announcements were implemented. The committee also received reports from the police and from the security service at state region level. The Committee discussed these in meetings and decided on them. According to the announcement (the Court of Appeal understands: the proclamation), the committee at state region level had the power to decide on people who opposed the committee or obstructed the implementation. The committee decided after investigation. The leader of the police investigation department was also a member of the revolutionary campaign coordinating committee. Cases were sent to the committee from the lower levels. ^[82]

The period in which the accused was in Gojjam

With regard to the period of time in which the accused was stationed in Gojjam, the Court of Appeal finds that this must in any case have been in the period from February 1978 up to and including August 1978. The accused himself has stated that he was there in any case in 1978, and that he was there for 7 or 8 months. ^[83] Not only are there the necessary witnesses testifying to the presence of the accused in Debre Marcos in Gojjam in that period ^[84] , but there are also the documents (letters with orders and enclosed lists), each time with the name and position of the accused underneath, which documents cover the period from 7 April 1978 - 24 August 1978. The position designations of the accused are shown on these as ‘Chairman of the Coordinating Committee of the Revolutionary Campaign of Gojjam province’ and ‘Permanent representative of the Derg in Gojjam province’. ^[85]

During questioning, the accused also recognised himself on a photograph that was found during the search of his house. The accused stated that ‘Ginbot 26 1970 Bahir Dar’ is written on the back of that photograph. ^[86] Translated and converted, this is 3 June 1978, and a fact of common knowledge is that Bahir Dar is a locality in Ethiopia, situated in then Gojjam.

Finally, the file contains an article from the
Ethiopian Herald of 16 June 1978 about Gojjam, in which the accused is called ‘a
member of the Provisional Military Administration Council assigned to the region...’ , and in which he warns that:
the broad masses of the Ethiopian People should guard against subversive and reactionary plots ^[87] .

13.3

Establishment of the facts

The Court of Appeal will now proceed to establish the actual events that are relevant in the light of the offences charged.

13.3.1

Establishment of the actual events

The Court of Appeal establishes that in the period from 1 February 1978 up to and including 31 December 1981, the following events took place in Gojjam, Ethiopia.

The exposure meetings

In the month of February 1978, an exposure meeting was held at a secondary school in Debre Marcos as part of the Derg’s so-called exposure campaign. The exposure meeting in Debre Marcos lasted three days. The purpose of such meetings was to expose EPRP members. ^[88] People were called upon to come to the school and identify themselves as EPRP members. They were told that if they identified themselves as EPRP members, nothing would happen to them, but if they did not identify themselves, the Red Terror would begin and executions would follow. ^[89] Armed kebele guards and armed kadres (the Court of Appeal understands: (non-commissioned) officers) were present on the premises. ^[90] There were persons who mentioned names of others at such a meeting and also persons who, out of fear of being mentioned by someone else, attended the meeting and identified themselves as EPRP members. ^[91] After the meeting, about three hundred people accompanied by armed kadres were deported by buses or trucks to the nearby (so-called fifteenth) military camp in Debre Marcos. ^[92] This was empty, because the troops had been sent to the north to fight against the EPLF. ^[93]

The military camp

The military camp housed about three hundred people between the ages of fifteen and seventy, but mostly people under the age of nineteen. ^[94] Men and women stayed in the same building and the space was filthy. There was little space and people had to sleep on the floor. ^[95] There was only one toilet for 300 people. ^[96] The prisoners’ families had to bring food and clothes. ^[97] The prisoners had to attend indoctrination meetings, where they were told how good the Derg was and how bad the EPRP was, and where they had to sing anti-EPRP songs. Initially, the atmosphere was reasonably good and there was a certain amount of freedom in the camp. They were promised their release after a week of political orientation. Although there were guards, not the whole area was under watch, which reinforced the expectation created by the earlier promise that they would be allowed to return home after the indoctrination. ^[98] The armed kadres constantly inquired about the EPRP’s structure and weapons. ^[99] Some people, who had been arrested before and were in prison, were brought to the military camp to reveal the EPRP’s organisation and structure and to talk about its weapons. Among these prisoners was also a certain [person 336], the highest leader of the EPRP. ^[100] When names of people who had not yet been detained were mentioned, the kadres went into the city to arrest them. ^[101]

After about ten days, a group of men from a special unit was brought in from Addis Ababa. They were put in charge of the camp, the atmosphere deteriorated, the regime became considerably stricter, and surveillance was tightened. ^[102] One of the members of this special unit was a non-commissioned officer from the navy, [person 337], others were called [person 338] and [person 339]. The daily management was in the hands of Captain [name captain]; a different [person] from the accused. ^[103] On the day they arrived, [person 338] read out a list of fifty to sixty names of higher EPRP leaders and they were taken to the police camp, about ten kilometres away. ^[104] Afterwards, new groups were transported each time and finally everyone was transferred to the police camp in Debre Marcos. ^[105]

The police camp

Initially, the first group that had been transferred were in the offices. There were so many people in the room that when they lay on the floor their legs touched. The windows were closed and blinded. When the rest of the group arrived, they had already been transferred to the larger rooms, which had been renovated in the meantime. ^[106] These were three larger rooms: two for men and one for women. ^[107] In addition, there were four small rooms, three of which were used as interrogation rooms, and one was used as a torture chamber. ^[108] Prisoners from other parts of Gojjam were also transferred to the police camp in Debre Marcos. ^[109] Apart from the special interrogators, fifty to seventy commandos had come to guard the camp. ^[110] Family visits were no longer allowed. The prisoners were crammed into large cells and slept on the floor. There was no medical care for the ill or wounded. ^[111] The cells were approximately fifty to sixty metres from the interrogation rooms. ^[112]

Already in the military camp a disciplinary committee had been established among the prisoners. The committee consisted of, among others, [person 334], [person 340] and [person 341]. In the police camp, the chairmanship was handed over to [person 336], who had been transferred back from prison at the request of the disciplinary committee to assist in the full mapping of the EPRP. The disciplinary committee passed on information from the police to the prisoners and vice versa, had to assist the special unit and summoned the prisoners for interrogation. ^[113]

The interrogators from Addis Ababa started interrogating the prisoners in the police camp. The purpose of the interrogation was to (further) map the EPRP’s structure. Because an EPRP member only knew those directly above and directly below him in the organisation, it was necessary to interrogate everyone in order to obtain a complete picture. Therefore, everyone from the military camp was brought to the police camp. ^[114] They built on the information that had already been obtained in the military camp. The prisoners had to tell what they had done within the party, what their position was, with whom they were in the EPRP cell, what their financial contribution had been, and whether they had owned or used weapons. Everything was written down and after the interrogation the prisoners had to sign their statement. ^[115] After the interrogation, the names of the interrogated prisoners were circled with a colour. This meant that they were divided into groups by the interrogators. ^[116] Red meant that the person in question should be killed. This applied to high-ranking EPRP members, members of squads and those who had taken up or bought weapons. ^[117]

If during the interrogation the prisoner’s statement was not believed, the special interrogator from Addis Ababa took him to the torture chamber. There the prisoners were maltreated in various ways. ^[118] One method that was used frequently was to tie the arms and legs together behind the back with a rope and then to hoist the body by this rope, after which the whole body and the face were beaten with a stick, especially the feet. ^[119] After a while - to counteract the screaming - a manufactured ball was put in the mouth. By moving the thumb behind the back, the prisoner then had to indicate that he or she wanted to say something. Then they would stop beating and let the prisoner talk. ^[120] After the maltreatment, the victims, who were unconscious or hardly conscious or barely able to walk, were forced to dig holes for toilets. ^[121] There were only a few who were not tortured. ^[122]

A certain [person 322] was maltreated so often and so severely that he finally died of his injuries in his cell. He had lost consciousness when he was hanging upside down and was beaten. The interrogators had then taken him down and thrown him on the coarse sharp gravel ground in front of the torture chamber and rolled him over in it. One of the militiamen hit him in his crotch with the butt of a Kalashnikov and while he was lying there, a bayonet was used to carve a cross in his back. The health officer [person 340] who wanted to help [person 322] and give him water was forbidden to do so. In the end, [person 322] was taken back to his cell and died there. ^[123]

[Person 323] and his sister [person 321] had to confess that, as well as being members of the EPRP, they were also members of the EPLF, as their parents were originally from Eritrea. In the same room, [person 321] and [person 323] were hanging from the ceiling by their arms, which were tied behind their backs, and had to watch the other being maltreated. When they came out, they could no longer walk. [Person 323] was finally killed. Many years later, [person 321] still had no feeling in her hands. ^[124]

[Person 313] stated that he was interrogated in a room next to the torture chamber. He heard noises, sighing, people being beaten and having to vomit. It was said that this would happen to you if you did not make a statement now. You were then left alone with the sound of torture in the adjoining room. Then ‘they’ came back to interrogate you. He stated that he was also taken to the torture chamber and that he was kicked and beaten there with an open hand and told to think it over and would come back tomorrow. ^[125]

[Person 324] stated that he was hoisted from the ceiling with his arms and feet tied behind his back and that he was pushed through the room while hanging, while he was being beaten with a stick on his back, legs, and feet. The blows to his feet were the worst. It lasted between ten and fifteen minutes. ^[126]

[Person 319] stated that he was beaten for fifteen to twenty minutes. A bar with a rusty nail in it was used, which went through the sole of his foot. ‘They’ hit with everything they could hold. His feet had been swollen for several days due to the infection from the rusty nail. ^[127]

Between the end of April and the middle of May 1978, the prisoners were transferred in groups to the prison in Debre Marcos. ^[128] For this, they had not appeared before a court. ^[129] Some of the prisoners were released - after a period of political orientation. ^[130]

The prison

The prison in Debre Marcos, nicknamed Demelash, was located at the foot of a hill. The prison was located at the foot of a hill and on top of it was a (former) palace, where also the accused’s office was located. ^[131] The prison housed not only political prisoners but also ordinary prisoners, called ‘dry prisoners’.

In the prison there were ordinary cells and 4 dark cells. In each dark cell there were about sixty people. ^[132] Here were the higher-ranking EPRP members or those accused of using violence. ^[133] Those who had a red circle around their names were kept together in a separate dark cell. ^[134] The prisoners in the dark cells were only allowed to leave the cell once in the morning and once in the evening to go to the toilet. ^[135] They were not allowed to have contact with the other prisoners or with their families. The food was brought by the family and placed outside the cell and thrown inside. ^[136] The prisoners shared it with those who had no family. It was very hot in the cells, there was no light and it stank. The prisoners had to do their needs in a little tub that you could hang on the wall. It was full of people, everyone had about one body length of space. Then there was no room to walk left. ^[137] There was no or insufficient medical care. ^[138] No information was given to the prisoners prior to their stay in the dark rooms. ^[139]

No medical treatment was provided in the ordinary cells. ^[140] The toilets were fifty to sixty holes in the ground, and you had to shield yourself with a towel for privacy. ^[141] Also the ordinary cells were so full that there was not enough room to sleep on your back. ^[142] There were no beds either for the political prisoners. The prisoners in the ordinary cells were allowed to go to the toilet during the day, but not from 18:00 onwards. There was an earthenware pot on the wall you could use to pee. You were fed from a barrel, a small pan with a piece of bread. Family members could also bring food to the prison. ^[143]

On 16 June 1978, several prisoners tried to escape from one of the dark cells. At least one of them ([person 81]) managed to escape, the others - including [person 342], [person 2] and [person 3] - were shot during their attempt. ^[144] After this attempt, the prisoners in the dark rooms were cuffed by their ankles in pairs, with the right foot to the another person’s left foot. They therefore had to do everything together. ^[145]

On 5 August 1978, the judgment against the first group of political prisoners was read out. ^[146] Around 12 August 1978, the judgment against a second group was read out. ^[147] None of the convicts has been before a court, their cases have not been heard by a court, nor have they received a copy of the judgment. ^[148] The conviction decisions were made on the basis of the information obtained by the special interrogators from Addis Ababa. ^[149] First, the group who had received three years’ imprisonment were mentioned, followed by those who had received shorter sentences. There was also a group that was not mentioned at all. This last group were the people with higher positions within the EPRP or the squads. ^[150]

That evening, a group of about 20 high-ranking EPRP members were transported by truck just outside the city. There they were shot, and their bodies were taken back to the prison grounds. ^[151] One of the victims was [person 323]. ^[152]

On or about 14 August 1978, at the beginning of the evening, several people were taken from various cells and their hands were tied behind their backs with rope. ^[153] They were taken to the church building on the prison premises. There a rope was put around their neck, they were beaten and strangled with the ropes. ^[154] The bodies were taken to a previously dug hole in the ground behind the church by a number of dry prisoners who had to help, including [person 343] and [person 344], and laid in it. ^[155] Two of the victims - a man named [person 345] and a woman named [person 346] - were not yet dead when they were laid in the hole. ^[156] The hole was then closed, and the victims were not seen again. ^[157] The food that the family of the victims brought in the following days was no longer accepted. In this way, the death of these family members became known. ^[158]

The fact that these people were actually killed, is evident not only from witness statements but also from documents consisting of letters and lists of names that are in the file. In a letter dated 14 August 1978, the head of the prisons in Gojjam province, Debre Marcos, was ordered to carry out ‘revolutionary measures’ against eighty persons mentioned in the annex. ^[159] By letter dated 16 August 1978 with annex, [person 327], the head of the prison in Gojjam province ^[160] , confirmed that he had taken the revolutionary measure in response to the order of 14 August 1978 in respect of 71 people. ^[161] In this letter, he also indicates that three people were killed in the aforementioned escape attempt, that one person escaped, and that five people are not being held in Debre Marcos but in the prison in Metekel. A letter dated 16 August 1978, addressed to the prison office in Meketel, reveals that that same day, order was given to take ‘revolutionary measures’ with regard to this group of five people in Metekel as well. ^[162] By letter of 17 August 1978, [person 328] confirmed that the order to take ‘revolutionary measures’ against these people, given by letter of 16 August 1978 and confirmed by telephone, had been carried out. ^[163] An exchange of letters on 17 August 1978 shows that the order was also given to take the ‘revolutionary measure’ with regard to [person 78] and that this was carried out that same day at 12:30 hours. ^[164]

The Court of Appeal is of the opinion that with the term ‘revolutionary measure’ in the abovementioned letters, nothing else can be meant than putting the persons concerned to death. The annex to the letter of 16 August 1978 stating that the revolutionary measure is the punishment that was imposed on those who were ‘hired killers and members of the EPRP’, people who had allegedly committed severe crimes against the revolution, had allegedly tried to flee, and that their presence was a danger to the country. ^[165] The others were sentenced to prison. It is not obvious that those who were accused of the most severe crimes, who were seen as a danger to the country, and who were obviously not given prison sentences, would not be put to death. Moreover, those who were deported from the prison of Debre Marcos on 14 August 1978 were, according to the sentencing lists ^[166] , punished with the ‘revolutionary measure’. [Person 2] and [person 1] are also mentioned in this list. Behind their names is the statement: ‘revolutionary measure was taken when he tried to break open the prison door’. Since - as considered above - they were killed during the escape attempt ^[167] , it cannot be otherwise than that in these letters ‘revolutionary measures’ means to put them to death. Significant in this context is finally also a letter of 11 June 1978, addressed to the accused as a permanent member of the Derg in Gojjam province, about the fact that a revolutionary measure was carried out against 12 persons and that they signed for their possessions (watches and money) while they were still alive. ^[168]

After 15 August 1978, the remaining prisoners were divided among all cells. ^[169] After 15 August 1978, the prisoners in the dark cells were also allowed to go outside during the day and the chains were removed from their ankles. ^[170] The prisoners were also allowed to receive visitors, to leave their cells with a policeman, and the sick were given treatment. ^[171] The prison provided food, but it was of poor quality. ^[172] The prisoners were released after the various sentences had been served, or shortly before. ^[173] Some of them served longer than the sentence imposed. ^[174]

13.3.2

Names of (proven) persons

The Court of Appeal has established that all proven names of persons have been included in the mentioned lists and/or letters from/to the accused or follow from the witness statements referred to in the evidence considerations. The Court of Appeal has taken into account that the spelling of names in the file is not always consistent, probably also caused by the (phonetically inspired) translation from the Amharic script. With regard to the proven persons, the Court of Appeal has ruled that, insofar as there was a discrepancy in spelling, this discrepancy must be explained by the translation. With regard to these persons no doubt has arisen as to whether the same person is actually meant.

13.3.3.

Partial acquittal with regard to several persons

- As the file does not contain sufficient legal and convincing evidence that the charges under Counts 1 and 4 have been committed against [person 325], [person 315], and [person 316], the accused must be acquitted of the charges under Counts 1 and 4 - insofar as the contents are still under discussion on appeal - concerning [person 325], [person 315], and [person 316].

- The Court of Appeal has already earlier - within the framework of the assessment of the witness statements - judged that the statement of [person 317] is insufficiently reliable to be used as evidence. As a result, the Court of Appeal will acquit the accused of the charges under Counts 1 and 4 insofar as these concern [person 317]
.

- For that same reason, acquittal will also follow for the charges under Count 2 concerning [person 326].

13.3.4

Partial acquittal with regard to the period in which offence 4 was committed

The Court of Appeal will acquit the accused of the charges under Count 4 insofar as these relate to the period after August 1978, namely from 1 September 1978 up to and including 31 December 1981. The file contains insufficient legal and convincing evidence that the detention conditions from that moment were still so bad that they can be qualified as cruel and/or inhuman and/or degrading. Moreover, it can be concluded from the file that the accused was no longer in charge in Gojjam from that moment on. The file contains insufficient information to attribute the continued deprivation of liberty afterwards pursuant to the judgments to the accused.

13.4

Protected persons

The Public Prosecution Service argued both in the first instance and on appeal that it is evident that, at the time when the offences were committed, none of the victims directly participated in the hostilities and that they were thus protected persons as referred to in Common Article 3. They were all in the accused’s power. The defence has not taken a position on this. The Court of Appeal rules as follows.

Common Article 3 protects anyone who does not or no longer actively participate in the hostilities related to the armed conflict. This provision is also part of customary international law. In practice, this means that civilians, combatants who have laid down their weapons, or combatants who are hors de combat, for example because they are detained or sick or wounded, enjoy protection.

The Court of Appeal finds that there is no real indication that those present at exposure meetings actively participated in the hostilities between the Derg and the EPRP or any of the other armed groups mentioned above. This is all the more true from the moment when persons were arrested and arrived or stayed in the police camp, military camp, or prison in Debre Marcos or Metekel. The victims were therefore among those to whom Common Article 3 and humanitarian customary law offer protection.

13.5

Violations of international humanitarian law

Above, the Court of Appeal has reached a factual finding regarding the facts and circumstances charged under Counts l, 2, 3 and 4. The Court of Appeal will now set out whether these facts and circumstances constitute violations of Common Article 3 and international humanitarian customary law. For the interpretation of the elements of the criminalisation of war crimes, the Court of Appeal is guided by international law, such as the Statute of the International Criminal Court and the Elements of Crimes drawn up on the basis of Article 9 of the Statute of the Criminal Court, and guiding statements by international tribunals, such as the ICTY, in view of the international character of this crime.

With regard to the charges under Counts 1 and 4, this means that the Court of Appeal will give it’s view on arbitrary deprivation of liberty, on pronouncing and enforcing extrajudicial judgments, on cruel and inhuman treatment and attacks upon personal dignity. With regard to the charges under Counts 2 and 3, the Court of Appeal will consider the prohibition of torture and killing. In so doing, the Court of Appeal will largely adopt the framework that the District Court has outlined and applied very extensively, as also requested by the Public Prosecution Service on appeal. The defence did not put forward a defence on the application of international humanitarian law.

13.5.1

Assessment framework

With regard to the charges under Counts 1 and 4

Arbitrary deprivation of liberty

Deprivation and restriction of liberty on arbitrary grounds within the framework of a non-international armed conflict is contrary to Common Article 3, namely the central commandment to treat humanely those who do not or who have ceased to take part in hostilities. This commandment applies to all warring parties and applies ‘in all circumstances’. It goes to the heart of international humanitarian law.

In this context,
Rule 99 of the ICRC: ‘
Arbitrary deprivation of liberty is prohibited .’ ^[175] can be used as a basis.

Paragraph 719 of the ICRC Commentary on the First Geneva Convention explains it as follows:

‘
It is a requirement under customary international law (...) that any detention must not be arbitrary. Therefore, certain grounds and procedures for such detention must be provided .’ ^[176]

In other words, a valid reason and sound procedure are required. A valid reason requires either arrest and detention in the context of a criminal procedure provided for by law, or internment for severe security reasons related to the non-international armed conflict. In the latter case, it must be for preventive security reasons, in the sense that the interned person constitutes a security risk for the interning party to the armed conflict. This may be the case because the person concerned has directly participated in the hostilities or otherwise poses a real threat. This means that detaining an entire population group without an identifiable or at least plausible security risk is not permissible in the individual case. ^[177] Furthermore, the acquisition of information, for example on the organisation of the other party, is not a valid reason for a security internment, unless the person in question is himself a threat to the interning party. ^[178]

Deprivation of liberty based on extrajudicial punishment cannot, by definition, have a valid reason, because the extrajudicial dispensation of punishment is expressly prohibited by Common Article 3, Paragraph 1(d).

With regard to the question of whether the prohibition of arbitrary deprivation of liberty was already part of customary international law in the period referred to in the indictment, the Court of Appeal states first and foremost the following.

The Ethiopian
Penal Code of 1957, in force in 1978, criminalised the detention of civilians in (concentration) camps during both international and non-international conflicts as a war crime (Article 282(c)). Moreover, the
Penal Code criminalised ‘
unlawful arrest or detention ’ by ‘
any public servant ’ (Article 416). This included disregarding ‘
forms and procedures prescribed by law ’.

Even outside Ethiopia, it was already considered unacceptable to unlawfully deprive people of their liberty. For example, the International Court of Justice ruled in 1980 (shortly after the beginning of the period referred to in the indictment):

‘Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself incompatible with the principles of the Charter of the United Nations as well as fundamental principles enunciated in the Universal Declaration of Human Rights.’ ^[179]

In view of the above, the Court of Appeal therefore concludes that there can be no doubt that the prohibition of arbitrary detention already belonged to customary international law in the period referred to in the indictment.

Passing and enforcing extrajudicial judgments

In order to establish the elements of crime with regard to the pronouncement and enforcement of extrajudicial sentences, the Court of Appeal follows the line set out in the ICRC
Commentary and in case law.

Common Article 3, Paragraph 1(d), prohibits (as already indicated above under the heading applicable law):

‘the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples’.

This prohibition is further elaborated in Article 6, Paragraph 2, of the AP II and in customary international law. Article 6, Paragraph 2, of the AP II contains the requirement that a court shall have the essential guarantees of independence and impartiality to ensure a fair trial.

For a court to be independent, it must be able to function ‘
without interference from any other branch of government, especially the executive ’. ^[180] The requirement of impartiality has two aspects, the subjective and the objective aspect.

First of all, judges must not make their judgments on the basis of prejudice and personal bias. Also, judges must not be partial, putting the interests of one party first.

In addition, judges must be impartial from an objective point of view. In other words, impartiality must be visible to a reasonable observer. ^[181] These two aspects of the requirement of impartiality have been adopted by, inter alia, the ICTY in the Furundiija case ^[182] and by the ICTR in the Akayesu case. ^[183] The Court of Appeal will follow this line in its assessment of the present case.

The judicial guarantees recognised as indispensable by civilised peoples - as included in Common Article 3, Paragraph 1(d) - have been replaced in the ICC Elements of Crimes by the requirement ‘
generally recognised as indispensable under international law ’. ^[184] The Court of Appeal will follow this last interpretation.

Common Article 3, Paragraph 1(d), does not explain the specific judicial guarantees. Article 6 of the AP II does, however, set out the minimum guarantees that a fair trial must fulfil, and which are indispensable in contemporary international law.

In the opinion of the Court of Appeal, these guarantees can be used in the further interpretation of the standard of Common Article 3, because, according to the ICRC, it concerns guarantees that are part of customary international law. ^[185] Incidentally, these guarantees are not exhaustive. ^[186]

In any case the following guarantees ensue from case law, Common Article 3, and AP II, and customary international law:

• the obligation to inform the accused of the accusation in due time;
• to respect the rights of the accused and provide resources for his defence;
• the right of the accused to be convicted only on the basis of individual criminal responsibility;
• the
• the presumption of innocence;
• the right of the accused to be present at his trial;
• the right of the accused to remain silent and the prohibition of a forced confession;
• the right of the accused to learn of the legal remedies available to him.

If one or more of these guarantees are not respected when sentences are being passed and enforced, then the essential guarantees of independence and impartiality described above are not met and a fair trial cannot be said to have taken place.

Cruel and inhuman treatment

The prohibition of cruel or inhuman treatment in Common Article 3 is a means of ensuring that persons not taking part in the hostilities are treated humanely in all circumstances. ^[188] Neither the Geneva Conventions nor the Additional Protocols define cruel treatment.

Case law defines cruel or inhuman treatment as follows:

‘
[Treatment] which causes serious mental or physical suffering or constitutes a serious attack upon human dignity, which is equivalent to the offence of inhuman treatment in the framework of the grave breaches provisions of the Geneva Conventions’. ^[189]

Here, the attack upon personal dignity is also mentioned. The Court of Appeal will return to this later in the judgment.

In order to speak of cruel or inhuman treatment, there must be severe physical or psychological suffering. ^[190] This does not require special intention. ^[191] The existence of severe physical or mental suffering must be assessed on a case-by-case basis. ^[192] Both the objective and the subjective circumstances must be considered. Cruel or inhuman treatment may consist of one isolated act, but it may also result from a combination or accumulation of several acts that, taken individually, would not qualify as cruel or inhuman treatment. ^[193]

The elements that may be relevant in assessing whether there has been sufficient severity are the nature of the actions or of the omission thereof; the context in which the actions occurs
; the duration and/or repetition of the actions; the physical, psychological and moral consequences of the actions on the victim; and the personal circumstances of the victim, including age, sex and health. It is not a requirement that the suffering caused by the cruel treatment be permanent. What is required is that it be severe. ^[194] If the actions have long-term consequences, this may be relevant in determining the severity of the actions. ^[195]

Specific actions that are considered cruel include the lack of adequate medical facilities ^[196] and inhuman living conditions in a prison ^[197] , beating ^[198] , and attempted murder ^[199] .

In the
Limaj case, the ICTY set out the detention conditions, which established that cruel treatment had taken place. To this end, the following detention conditions were relevant. It was very hot in the room, there was no ventilation, there was only a small window, and the floor was made of concrete. There was excrement on the floor and there was blood. The prisoners were tied up or chained, sometimes to other prisoners. The atmosphere and smell were suffocating. The temperature and the smell had become unbearable at one point, also because the prisoners had to sleep and eat in this room. The prisoners stayed in the small room all day and were not allowed to talk to each other. There was not enough room for the prisoners to stretch out. The prisoners had to stay in this room for twenty hours per day and could not leave it. The iron door was closed all the time. There were days when the prisoners did not get any food at all and days when they were given soup or bread. According to the prisoners, the food looked like cattle feed and was not fit for human consumption. The prisoners slept on a small carpet on the floor. There was no bedding. There were no sanitary facilities. The prisoners were not allowed to use the toilet outside but had to use a bucket that was not emptied regularly. Although there were prisoners with severe injuries, there was no medical care. There was severe psychological and physical suffering among the prisoners, which was a severe affront to their dignity. ^[200]

With regard to the detention conditions, the Court of Appeal also draws on the
Delalié case. In this case, the ICTY also specified the detention conditions and concluded that there was cruel treatment. It was established in that case that the food for the prisoners was inadequate. On hot days, the prisoners had to stay in the hangar. The prisoners had to sleep on the bare concrete, lying on their sides against each other. There was a build-up of excrement from the prisoners. There was a lack of medical facilities and there was constant psychological torment. The prisoners lived in an atmosphere of terror, where they were afraid of being beaten or killed. ^[201]

Above, the Court of Appeal only quoted those detention conditions from case law that are relevant for the assessment of what the accused has been charged with in the present case. The Court of Appeal emphasises that this is not an exhaustive enumeration of elements of crime.

Attack upon personal dignity

The prohibition of attack upon personal dignity, by humiliating and degrading treatment, as charged, is also stipulated in Common Article 3. This prohibition has been reaffirmed in the Additional Protocols and is considered to be applicable customary international law. However, neither the Geneva Conventions nor the Additional Protocols define what constitutes an attack upon personal dignity. ^[202]

The Court of Appeal will also follow the line previously set out in case law regarding attacks upon personal dignity through humiliating and degrading treatment, specifically addressing the detention conditions.

With regard to attacks upon personal dignity, the ICTY adopted the following definition in the Kunarac case:

‘The accused intentionally committed or participated in an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity .’ ^[203]

In other words, the attack may involve an intentional act, but also an omission, which, viewed in general, has caused severe humiliation or otherwise severely assaulted human dignity. And this assessment should also take into account subjective criteria, such as the sensitivity of the victim, but also objective criteria related to the severity of the act. ^[204]

Like cruel or inhuman treatment, attacks upon personal dignity may consist of one isolated act, but it may also result from a combination or accumulation of several acts that, taken individually, would not qualify as cruel or inhuman treatment. The Court of Appeal follows the ruling of the ICTY in the
Aleksovski case:

‘The seriousness of an act and its consequences may arise either from the nature of the act per se or from the repetition of an act or from a combination of different acts which, taken individually, would not constitute a crime within the meaning of Article 3 of the Statute. The form, severity and duration of the violence, the intensity and duration of the physical or mental suffering, shall serve as a basis for assessing whether crimes were committed . ^[205]

As already established, the humiliation must be severe, but it is not a requirement that the assault should have lasting consequences. ^[206] Nor is specific intent required, as is the case with torture. ^[207]

In the
Kvocka case, the ICTY assumed severe humiliation based on detention conditions. In this case, prisoners have been subjected to severe humiliation including poor detention conditions, being forced to perform humiliating acts, being forced to do their needs in their own clothes or being subjected to prolonged fear of being subjected to physical, psychological or sexual violence in the camp. ^[208]

Here too, the Court of Appeal has only cited those elements of attacks upon personal dignity by humiliating and degrading treatment from case law that are relevant for the assessment of what the accused has been charged with in the present case. Here too, the Court of Appeal emphasises that it does not concern an exhaustive enumeration of elements of crime.

With regard to the charge under Count 2

As a referential framework for the elements of the offence of torture, the Court of Appeal again seeks a link with the application of Common Article 3, which prescribes that, in the event of a non-international armed conflict, the use of torture is prohibited everywhere and at all times with regard to the protected persons.

The Geneva Conventions do not give a definition of the concept of torture, and this concept has been further defined and elaborated in legal doctrine and in (international) case law. The Court of Appeal refers to, for instance, the
Greek Case from 1972, by the European Commission of Human Rights ^[209] in which the Commission defined torture as ‘
inhuman treatment which has a purpose, such as the obtaining of information or concessions, or the infliction of punishment ’.
Inhuman treatment was then defined as ‘
deliberately causing severe suffering, mental or physical, in the particular situation unjustifiable ’.

The elements of the offence of torture have been developed and formalised in the jurisprudence of the ICC and ICTY and in
Rule 90 of the ICRC’s
Customary International Humanitarian Law Database .

The
Trial Chamber of the ICTY outlined the requirements for torture as follows in, inter alia, the Furundzija case:

(i) consists of the infliction by act or omission of severe pain or suffering, whether physical or mental; in addition

(ii) this act or omission must be intentional;

(iii) it must aim at obtaining information or a confession, or at punishing, intimidating or coercing the victim or a third person; or at discriminating, on any ground against the victim or a third person;

(iv) it must be linked to an armed conflict;

(v) at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g. as a de facto organ of a State or any other authority-wielding entity. ^[210]

In the
Kunarac case, the
Trial Chamber nuanced the element outlined under (v) by concluding that:

‘
the presence of a state official or any other authority-wielding person in the torture process is not necessary for the offence to be regarded as torture under international humanitarian law .’ ^[211]

With regard to the charge under Count 3

The Court of Appeal once again takes the central prohibition of Common Article 3 as its starting point in this context: with regard to protected persons, an attempt on their life, in particular killing in any way, remains prohibited everywhere and at all times. The elaboration of the prohibition of killing is reflected in the case law of the international tribunals.

The ICC Statute and the ICTY Statute also contain a prohibition of this war crime.

As a provision of customary international humanitarian law, the prohibition is reflected in
Rule 89 in the aforementioned
ICRC database.

The elements of the offence of killing are outlined in Article 8(2)(c) of the ICC Statute as a war crime and (summarised) as follows:

‘
The perpetrator killed one or more persons, such person or persons were civilians, taking no part in the hostilities, the perpetrator was aware of the circumstances of this status, the conduct took place in the context of and was associated with a non-international armed conflict, the perpetrator was aware of the circumstances that established the existence of an armed conflict ’.

13.5.2

Violations of international humanitarian law in this case

The Court of Appeal will assess below whether the established factual events constitute violations of international humanitarian law. For this purpose, the Court of Appeal will use the elements of crimes just outlined.

With regard to the charges under Counts 1 and 4

Arbitrary deprivation of liberty and extrajudicial judgments

Based on the previously established facts and circumstances, the Court of Appeal reaches the following conclusions with regard to the question of whether there has been deprivation of liberty and, if so, whether this was arbitrary and whether extrajudicial judgments have been pronounced and enforced.

As part of a campaign against the EPRP,
exposure meetings were held on the premises of the local school in Debre Marcos for three days in the month of February 1978. Participation in these
exposure meetings took place under pressure and for fear of severe reprisals. There were armed guards on the premises. In the course of the
exposure meetings , several people were deported on the spot after identifying themselves as EPRP members or being identified as such by others. Most of them, about three hundred persons, were deported to the military camp at the end of the meeting on the third day. The Court of Appeal finds that this constitutes deprivation of liberty.

The deprivation of liberty continued for a large number of people in their subsequent stay in the police camp and then in prison.

In the opinion of the Court of Appeal, legally valid reasons were lacking from the very beginning for the entire process of restriction of liberty during the
exposure meetings, the deprivation of liberty during the arrests and the subsequent detention of a large number of the prisoners in the military camp, the police camp, and the prison until the pronouncement of the ‘judgments’ in August 1978. The deprivation of liberty played a central role - alongside military activities, fierce anti-EPRP propaganda and political retraining - in the Derg’s campaign to defeat the EPRP in Gojjam province once and for all. The entire process of deprivation of liberty was aimed at exposing the structure of the EPRP and then eliminating or imprisoning its members, alleged or otherwise. None of them was ever formally charged with any specific offence. This course of action makes it impossible, in the opinion of the Court of Appeal, for there to have been a deprivation of liberty within the framework of a legally provided criminal procedure. The total arbitrariness with which the people were detained and held after the exposure meetings alone makes it impossible to speak of internment for severe security reasons, whether or not these were related to the non-international armed conflict.

Furthermore, the Court of Appeal is of the opinion that the deprivation of liberty after the ‘judgments’ in August 1978 was also arbitrary, because those ‘judgments’ were extrajudicial. Measures (imprisonment with hard labour) were indeed issued and enforced against the persons concerned without prior adjudication by an (independent) court and without them being granted a trial, let alone a fair trial. They were not tried by a court with the essential guarantees of independence and impartiality. Thus, at least the following guarantees were not respected:

• the obligation to inform the accused of the accusation in due time;
• the right of the accused to learn of the legal remedies available to him;
• provide resources for his defence;
• the right of the accused to be present at his trial;
• the right of the accused to remain silent and the prohibition of a forced confession;

In view of the above, the Court of Appeal concludes that the restriction and deprivation of liberty at the
exposure meetings , in the military camp, in the police camp and in prison, both before and after the extrajudicial judgments, was arbitrary. Thus, this constitutes a violation of the common law prohibition of arbitrary deprivation of liberty. Furthermore, the Court of Appeal concludes that the arbitrary deprivation of liberty and the issuance and enforcement of extrajudicial judgments constitute violations of the provisions of Common Article 3.

Detention conditions

With regard to the detention conditions, the Court of Appeal considers the following.

Although the space in the military camp was limited, people had to sleep on the ground, family members had to take care of food and clothing, and there was only one toilet for three hundred people, life there was, strictly speaking, not considered bad by those who had to stay there. With regard to the detention conditions that applied here, the Court of Appeal is of the opinion that - also in view of the standards that applied at the time and in the culture - it cannot be established that this constituted cruel or inhuman treatment and/or that this led to the persons concerned being violated in their dignity or treated in a humiliating and degrading manner.

This is different for the detention conditions in the police camp, however. The Court of Appeal considers that here - apart from the overly cramped cells and the absence of
(proper) sanitary facilities - several prisoners were severely maltreated. The prisoners heard screaming and crying from the torture chambers and were confronted with the injuries of the maltreated persons. The injured fellow prisoners were put back in the cells with the other prisoners without any medical care. The other prisoners were then forbidden to help them. [Person 322] even died in the cell, in the presence of fellow prisoners. The prisoners must have lived in constant fear that they would be the next to be maltreated or killed. The Court of Appeal considers the incarceration under these detention conditions to constitute cruel or inhuman treatment and is of the opinion that the persons involved were assaulted in their dignity or treated in a humiliating and degrading manner.

In prison, too, conditions before the extrajudicial judgments were pronounced were miserable. In the ordinary cells there was not enough room to sleep on one’s back, near the toilets - holes in the ground - there was no privacy, and there was no medical care. In the
dark rooms , where the political prisoners were locked up, the detention conditions should be qualified as harrowing. The cells had virtually no daylight. The prisoners in these cells - unlike the others - were not allowed to leave their cells during the day and could only use the toilet once in the morning and once in the afternoon. The rest of the time they had to relieve themselves in a tub hanging on the wall; the heat and the stench were described as unbearable. After an escape attempt by fellow prisoners, the prisoners were handcuffed in pairs by the ankles, which made it difficult to move. There was little or no medical care. In addition, no information was given prior to their stay in the
dark room . The prisoners were in a state of complete uncertainty about their fate.

Based on the aforementioned facts and circumstances, the Court of Appeal is of the opinion that the detention conditions in the prison also constituted cruel or inhuman treatment and that this assaulted the personal dignity of the prisoners, and that they were treated in a humiliating and degrading manner.

In view of the above, the Court of Appeal concludes with respect to the detention conditions that there has been a violation of international humanitarian law. This does not apply, as considered earlier, to the detention conditions shortly after the extrajudicial judgments. The various witness statements do not reveal much about this other than that the dark rooms were no longer used as such afterwards and that there was more freedom afterwards. Therefore, acquittal should follow for this component. The same applies to the detention conditions in Metekel, as the file does not provide sufficient information about the conditions there.

With regard to the charges under Count 2

In view of the events described above, which show the deliberate infliction of physical and mental suffering, as opposed to the elements of crime outlined above, the Court of Appeal is of the opinion that the torture with which the accused is charged under Count 2 meets the criteria as laid down in Common Article 3 and further elaborated in the case law cited. Similarly to the District Court, the Court of Appeal is of the opinion that this also applies to the violence inflicted on [person 313]. Although it concerns a slap and a kick here, the Court of Appeal is of the opinion that this assault - although less severe in itself - in connection with the detention circumstances described above and in connection with his young age, has caused him mental suffering so that it can be qualified as torture.

With regard to the charges under Count 3

When the Court of Appeal checks the established events against the prohibition of killing protected persons laid down in Common Article 3 and the criteria listed in the ICC Statute, the Court of Appeal finds that the issuance of orders to kill people in the prison, charged under Count 3, fulfils all of the elements outlined above.

13.6.

Involvement and role of the accused in the acts charged

13.6.1

Assessment of the actual role of the accused

The Court of Appeal has previously identified the actual events in the period referred to in the indictment. The Court of Appeal also identified the tasks and position of the accused at that time: as chairman of the revolutionary coordinating campaign committee, he was the only representative of the Derg in Gojjam. In view of the contents of Proclamation 129, drawn up shortly after the launch of the ‘Red Campaign’, in conjunction with the previously mentioned speeches and calls by Mengistu (‘to crush’ (i.a.) the EPRP), the Court of Appeal also establishes that his task was to break the political resistance of the opposition.

On the basis of the contents of the file, including the various witness statements and documents, the handwriting analysis, and the statement of the accused himself, the Court of Appeal further substantiates the actual actions of the accused as follows. The accused was present on several days at the exposure meetings in February 1978 in Debre Marcos. The accused was in charge there and gave a speech in which he explained how the exposure meetings would go. He said that the EPRP was destructive to the nation. ^[212] He persuaded people there to make themselves and others known as EPRP members, promising that nothing would happen to them if they made themselves known and threatening them with death if they were named by anyone else. ^[213] The accused ordered (the kadres) to take away those who were accused of lying or had made themselves known as EPRP members. ^[214]

The accused personally brought in interrogators from the security service in Addis Ababa to the military camp. When that happened, the atmosphere changed. The accused was angry about the mild conditions and said that these people would continue the investigation. The aim was for people to tell how the structure within the EPRP was. There was also an officer there who did not do the torturing himself but supervised it. ^[215]

The Court of Appeal bases the involvement of the accused partly on the consideration in the Ethiopian judgment against the accused ^[216] , insofar as it describes two letters written by the accused; namely the letter of 16 March 1978 in which a request is made to send investigators of the security service in Addis Abeba and a letter dated 7 April 1978 in which the order is given to the financial administration of Gojjam province to pay a daily allowance to the investigators for fifteen days. On appeal, a copy of a letter from the accused dated 7 April 1978 addressed to the finance and budget department of the Gojjam administration has been added to the file, which letter concerns the concrete payment of the salaries of these five persons, which confirms this state of affairs. On 8 April 1978, the accused sent a copy of this letter to the Temporary Military Government (the Standing Committee on People’s Security) in Addis Ababa, in which the accused wrote: ‘
Following indications and exposure, we have arrested employees of various authorities and students/pupils who have defected to the counter-revolutionary camp. It is known that a team that is investigating and reporting the result to us has come from Addis Ababa and is working on the investigation here in Debre Markos. ‘ ^[217]

The contents and dating of the letters, in conjunction with the statement of [person 319] ^[218] and other witnesses who testify about the arrival of these interrogators ^[219] , lead to the conclusion that the accused was responsible for sending these four persons to conduct interrogations, and also support the accused’s involvement in the ‘exposure’ and detention of these persons in the camps.

The accused was subsequently also in the police camp and had contact there with the aforementioned interrogators from Addis Ababa. ^[220] The accused spoke to these interrogators in front of the interrogation room, inquired how things were going and seemed to give them instructions. ^[221]

After the interrogations, the lists with the circled names of those who had been interrogated were taken to the office of the accused, who then decided, based on the findings of the interrogators, what punishment would be imposed on the various prisoners. ^[222] The documents show that the prisoners were given a colour. The names of the prisoners who were to be killed were indicated with the colour red. ^[223]

Several witnesses stated that during or after the reading of the prison sentences imposed, it was said that the sentence had been signed or that the decision had been taken by the accused/the leader of the revolutionary coordinating campaign committee. ^[224]

The method described above fits the position that the accused had to fulfil. It being the task of the campaign committee to deal with the anti-revolutionaries. Anyone who disobeyed orders arising from the proclamation or tried to evade them or who incited someone else to such disobedience, would be punished with imprisonment or death. ^[225]

The involvement of the accused in making such decisions also appears from the account he apparently rendered to the leadership of the Derg in Addis Abeba, in view of the undated lists found in the security office of the Derg with names and, per name, the punishment received, which lists state the fact that they were signed by the accused. ^[226]

Finally, the file contains letters from the accused addressed to the head of the various prisons in Gojjam, including, in the letter or its annex, (lists with) names of persons against whom revolutionary measures had to be applied. ^[227] These letters provide very convincing evidence for the involvement of the accused in determining the fate of the prisoners.

In conclusion, the Court of Appeal establishes - together with the District Court - that the accused did organise exposure meetings in Debre Marcos and was present at them. The accused was in the military camp as well as in the police camp. Furthermore, he had special interrogators come from Addis Abeba to interrogate the prisoners and he signed orders to detain and kill people.

During the appeal hearing, the defence pointed out the possibility that it was not the Derg but Meison that organised the exposure meetings. Whatever may be the case - it having already been established that in the course of 1976 Meison became one of the opponents of the regime -, this does not alter the pertinence of the aforementioned evidence to the contrary.

Together with the District Court, the Court of Appeal does not concur with the Public Prosecutions Service in its argument that the accused was present at the killing of prisoners. The Court of Appeal has already explained before that it will not use the statements of the only witness who claims to have seen the accused in prison that night, namely [person 326], as evidence, because of the many inconsistencies in his statement. Contrary to what the Public Prosecution Service has claimed, the presence of the accused at the killing cannot be derived from the part of the (written) statement of [person 347] that was quoted by the Public Prosecution Service. Although several witnesses have stated to have heard from different sources that the accused was present at the killing that night, these are all so-called hearsay statements. The Court of Appeal finds this insufficiently convincing.

13.6.2

Legal qualification of the role of the accused

The Court of Appeal has previously identified the offences in which the accused played a role. The Court of Appeal will now discuss for each offence the form of liability that can be deemed proven with respect to the accused. In this assessment it applies that the rules regarding participation in criminal offences of the common (national) criminal law are also applicable when trying war crimes (Article 91 CC).

The assessment frameworks of the various forms of participation charged, which the Court of Appeal will take as a starting point for the further assessment are in line with those of the District Court; the Court of Appeal will explain the requirements - insofar as they are relevant - in more detail.

Insofar as the liability of the superior within the meaning of Article 9 (old) of the WOS as charged under Counts 1, 2 and 4 cumulatively/alternatively is concerned, it should be noted that in its assessment the Court of Appeal has sought connections with international law, including the doctrine of ‘command responsibility’, as can be found in the Statutes of various tribunals ^[228] , and the case law relating thereto ^[229] . ^[230]

The liability of a superior does not rule out that the superior can also be punishable as a (co-)perpetrator, a person ordering the commission of an act, or an instigator. ^[231] In the event of concurrence of these forms of culpability, the more direct form (for example, (co-)perpetration) should take precedence. ^[232]

The Court of Appeal took particular note of the ICTY in
Blaškić: ‘[i]t would be illogical to hold a commander criminally responsible for planning, inciting or ordering the commission of crimes and, at the same time, reproach him for not preventing or punishing them. ‘ ^[233] .

In its assessment, with regard to all four offences, the Court of Appeal has each time taken the position of the accused and the way in which he fulfilled it as a starting point. Although the accused himself in his statements – including those at the session on appeal - describes his role as chairman of the campaign committee as (only) coordinating and equal to the position of the other members of the campaign committee, the Court of Appeal considers this implausible on the basis of the court file. In the opinion of the Court of Appeal, the witness statements and documents show that the accused had such a position of power that he - as chairman - was the (all-determining) voice of this committee and therefore had the absolute political leadership in Gojjam, whereby the main objective of the committee was, as indicated above, to break the political resistance of the opposition.

The actions of the accused should therefore be judged each time in this light.

With regard to the acts charged under Counts 1 and 4

Counts 1 and 4 of the indictment concern the arbitrary deprivation of liberty, the pronouncement and enforcement of judgments without a fair trial, the cruel and inhuman treatment, and attacks upon personal dignity. The Court of Appeal has already established that in the period referred to in the indictment a large number of people were arrested at – inter alia - exposure meetings and subsequently arbitrarily deprived of their liberty in a military camp and a police camp, often under very poor detention conditions.

The Court of Appeal also established that the accused was present at the exposure meetings in Debre Marcos. These exposure meetings were part of the Derg’s campaign to counter the resistance of parties such as the EPRP. In view of what the Court of Appeal has already observed about the extent to which the accused had the political leadership, the Court of Appeal assumes that the accused had an initiating and directing role in the realisation and execution of those exposure meetings. In this context, the Court of Appeal has also established that the accused spoke at several exposure meetings, explained the course of events, persuaded people to make themselves or others known as EPRP members, and ordered them to be taken away. Thus, in the opinion of the Court of Appeal, the accused had not only an initiating role but also an executive role at the exposure meetings.

After the exposure meetings, the accused was involved in the detention of the large group of (alleged) EPRP members and was present while it took place in both the military camp and the police camp. Thus, the accused must have been aware of the poor detention conditions, but at no time distanced himself from them or intervened. The punishments that were eventually imposed on a large number of prisoners were issued by the Committee, of which the accused was the chairman. In this context, the accused received and read the reports of the interrogators and made a decision based on those reports. Therefore, in this case as well, the detention of the (alleged) EPRP members by the co-perpetrators (such as the prison guards and prison governors) would not have taken place without the initial order of the accused.

Based on the above, the Court of Appeal is, together with the District Court and the Public Prosecution Service, of the opinion that the accused can be qualified as a co-perpetrator of these acts charged. In so doing, The Court of Appeal has taken into account the following circumstances: the intensity of the cooperation, the repartition of tasks between them, the role in the preparation, the implementation or the completion of the offence and the importance of the role of the accused, including his presence at important moments and his failure to withdraw at an appropriate moment. Co-perpetration does not require that the accused participated in all the acts towards the commission of an offence as mentioned in the indictment but does require that the contribution of the accused to the offence is of sufficient weight.

When the Court of Appeal tests these criteria against the actions of the accused, the conclusion of the Court of Appeal is that there has been such close and conscious cooperation between the accused and his co-perpetrators with regard to the actual actions as charged under Counts 1 and 4, that it can be considered as co-perpetration.

The actual actions of the accused do not qualify as aiding and abetting (Counts 1 and 4 cumulative/alternative); the role of the accused as a co-perpetrator rules this out. Furthermore, his cooperation in the execution of the offence in this case is too great to consider him an instigator (Count 4 cumulative/alternative), as a result of which it is not possible to prove these parts of the indictment. The same applies to the charges under Counts 1 and 4 (cumulative/alternative) intentional acceptance as a superior (‘superior responsibility’). Although co-perpetration does not rule out liability as a superior, in this case the nature and extent of the accused’s involvement prevents this.

The accused actively (co-)performed the actions referred to in the indictment and has had an initiating, directing, and executing role in that respect; in the opinion of the Court of Appeal, this constitutes a different reprimand than that the accused should be held liable as a superior of his subordinates. His actual involvement in the execution of those actions was too great for that. Consequently, the Court of Appeal is of the opinion that in this case the two forms of liability are mutually incompatible.

With regard to the charges under Count 2

Count 2 of the indictment concerns the torture of a number of prisoners. The Court of Appeal has previously established on the basis of the file that in Debre Marcos several people were tortured
in captivity and that this was done by or on the orders of special interrogators from Addis Abeba. The Court of Appeal has concurrently established that the accused was responsible for bringing these special interrogators to Debre Marcos and that he also arranged for their payment.

Unlike the District Court, and in line with the Public Prosecution Service, the Court of Appeal is of the opinion that there is sufficient legal and convincing evidence to regard the accused as a co-perpetrator of this offence.

The Court of Appeal considers the following facts and circumstances relevant in this respect.

In Ethiopia, human rights violations had already been taking place on a large scale for quite some time in the period referred to in the indictment. The accused must have known about this, partly in view of his position. Illustrative for this is the fact that the accused saved a friend of his from prison, when he was accused of being an EPRP-member. The accused stated in this respect that the brothers-in-law of that friend were EPRP members and that they had falsely accused that friend of also being an EPRP member. ^[234] The accused had heard that those brothers-in-law had been killed. The accused’s friend was also arrested, tortured and was on the death list. The accused then used all his influence to save him from death. ^[235] This was in the period when the accused was living as a political cadre on the Derg’s compound in Addis Ababa, before he came to Gojjam. ^[236] The accused was therefore well aware during the period referred to in the indictment that EPRP prisoners were tortured.

It is furthermore important that the investigators from Addis Ababa came to Debre Marcos by order of the accused to interrogate the prisoners. They then reported back to the accused. It was also the accused who took care of the payment of the interrogators. From the statements of witnesses, it also follows that the accused spoke with the interrogators in the police camp. The Court of Appeal deems it absolutely implausible that the accused did not know about the torture in the camp, in view of his presence there, where the prisoners had injuries and where screaming and shouting could be heard regularly. Because the accused was angry about the ‘mild conditions’ in the camp so far, it seems - on the contrary - that the accused brought in the new interrogators precisely in order to make the interrogations take place with a heavy hand. The special interrogators were subsequently particularly successful in obtaining confessions, whereas, as the Public Prosecution Service rightly emphasises in its closing speech, in view of the dangers that the EPRP membership entailed in that period, it was not obvious that they would simply admit to this.

It is also certain that the accused did not intervene to stop the violence against the prisoners, whereas, according to his own statement, he could have done so in view of his position. ^[237]

In view of all the aforementioned facts and circumstances, the Court of Appeal concludes that there was a close and conscious cooperation between the accused and the special interrogators, so that the Court of Appeal assumes that the accused at least had conditional intent with regard to the torture carried out by the interrogators. This leads the Court of Appeal to confirm co-perpetration as conclusively proven.

With regard to the cumulative/alternative charges of liability as a superior and of aiding and abetting, the Court of Appeal rules in favour of acquittal, because here too - in conformity with Counts 1 and 4 - the nature and extent of the accused’s involvement, respectively his role as a co-perpetrator, preclude this.

With regard to the charges under Count 3

Count 3 of the indictment concerns the killing of a large number of persons. Above, the Court of Appeal established that a large number of people were killed in Debre Marcos and several in Metekel in the period referred to in the indictment.

In this connection, the Court of Appeal qualified the accused as a co-perpetrator and an instigator.

The Court of Appeal has already established that the decision to kill these persons was taken by the accused and that he gave the order to the heads of the prisons where the persons concerned were detained at that time. After having carried out the executions concerned, the heads of the prisons reported this to the accused. From the available evidence the presence of the accused at the executions cannot be ascertained. The accused did not carry out the executions himself either. Nevertheless, the contribution of the accused to the executions is, in the opinion of the Court of Appeal, of sufficient weight to justify the qualification of co-perpetrator. The order of the accused was the reason why the executions took place in the first place; moreover, they were reported back to him. In the opinion of the Court of Appeal, the accused therefore cooperated very closely and consciously with his co-perpetrators, so that co-perpetration can be declared proven.

With regard to the cumulative/alternative charge of instigation, the Court of Appeal is of the opinion that the accused cannot (also) be regarded as an instigator, since - as explained above - the actions of the accused go beyond instigating another/others to commit the killing charged. The far-reaching involvement of the accused, which according to the Court of Appeal must be regarded as a joint effort with the prison governors and those who carried out the executions, renders these two forms of participation mutually exclusive in this case.

Therefore, in the opinion of the Court of Appeal, the charges against the accused under Count 1 second cumulative/alternative, under Count 2 second cumulative/alternative, under Count 3 second cumulative/alternative, and under Count 4 second and third cumulative/alternative have not been legally and convincingly proven, so that the accused should be acquitted of them.

13.7

Nexus

The Court of Appeal has previously established that in the period referred to in the indictment there was a non-international armed conflict of which the accused had knowledge, and that the accused can be held liable for the violations of international humanitarian law committed during this conflict. The question at hand is whether there was a close connection (also called ‘nexus’ in (international) case law) between these violations and the armed conflict.

The criminalisation of war crimes indeed aims to offer protection against crimes that are (closely) related to war. In that context, the nexus requirement serves to distinguish war crimes from general crimes and other international crimes such as genocide and crimes against humanity.

In the case law of the ICTY, the interpretation of the concept of nexus has been elaborated on in various decisions. ^[238] In so doing, guiding assumptions have been mentioned for answering the question of whether there is a nexus in the case at hand. This does not alter the fact that the assessment of the existence of a nexus must be made from case to case. The starting point is that law governing war crimes is applicable to the entire territory of the fighting parties, regardless of where the actual fighting is taking place at that moment, until the moment that a peaceful solution has been found.

The existence of an armed conflict must at least (i) have played a substantial role in the decision of the perpetrator to commit the offence, (ii) in his ability to do so, (iii) in the manner in which the offence was committed or (iv) in the purpose for which it was committed. The Court of Appeal understands these assumptions to be neither ‘hard’ nor exhaustive criteria. Furthermore, for the assessment of the question of whether actions are sufficiently related to the armed conflict, the Court of Appeal may take, inter alia, the following factors into account: the circumstance that the perpetrator is a combatant; the circumstance that the victim is a non-combatant; the circumstance that the victim belongs to the opposing party; the circumstance that the actions can be said to serve the ultimate purpose of the military campaign; and the circumstance that the offence was committed as part of or in the context of the fulfilment of the perpetrator’s official position.

The perpetrator must have been aware of the factual circumstances constituting the existence of the armed conflict.

Assessment by the Court of Appeal

Together with the Public Prosecution Service and the District Court, the Court of Appeal is of the opinion that there is a nexus between the conduct of the accused as a representative of the Derg in Gojjam and the armed conflict in Ethiopia. The victims belonged to or were associated with the opposing party in the armed conflict that the Derg was waging with the EPRP, the proven offences were carried out in order to unearth and/or eliminate the opponents, and the offences were committed in the official capacity of the accused, namely as chairman of the campaign committee and permanent representative of the Derg in Gojjam. As such, the accused was also aware of the factual circumstances of the conflict. These observations lead the Court of Appeal to the conclusion that the nexus was present.

14. Conclusion

The Court of Appeal does not follow the accused in his statement that he is innocent.

In the above, the Court of Appeal has established that in Ethiopia, in the period referred to in the indictment, there was a non-international armed conflict of which the accused had knowledge. Furthermore, the Court of Appeal has established that in that period violations of international humanitarian law took place, and that the accused was involved in these as a co-perpetrator. The proven offences have all taken place in connection with the armed conflict. Therefore, the accused has violated the laws and customs of war. In so doing, the accused has been guilty of violation of Article 8 (old) of the WOS.

It has already been considered that Counts 1, 2, and 4 constituted inhuman treatment. Count 2 resulted in the death of [person 322] and in grievous bodily harm to [person 321]. Count 3 resulted in the death of 75 persons. This means that these aggravating circumstances have been proven as well.

In the opinion of the Court, the deprivation of liberty, the torturing, the killing, and the imposition of extrajudicial sentences (thus all offences) were, in addition, expressions of a policy of systematic terror or unlawful actions against a specific group of the population, namely those who were accused of belonging to or sympathising with the EPRP. The accused performing these actions in his position as representative of the Derg, and against the background of the Red Terror to be carried out in this context: the destruction of (inter alia) the EPRP.

With regard to Counts 1 and 2, moreover, there is the aggravating circumstance that death or severe physical injury was to be expected from the offences committed by the accused. Due to the extremely unhygienic detention conditions the outbreak of diseases was far from imaginary. For the torture this needs no further explanation.

Furthermore, in the case of Counts 1, 2, and 4 there is evidence of forcing in concert to do something, not to do something or to tolerate something: at the exposure meetings and during torture, people were forced by the accused and/or his co-perpetrators to identify themselves as EPRP members or to name the names of others. The (degrading) restriction and deprivation of liberty by the accused and his co-perpetrators was something that had to be tolerated. This also applies to the torture.

With regard to Counts 2 and 3, there is the aggravating circumstance that this offence also involved violence in concert against persons. Finally, for all offences a given promise was violated. At the exposure meetings the accused and/or his co-perpetrators indeed said that, if people were to report themselves, nothing would happen to them. Nothing came of this promise: they were arrested, deprived of their liberty, and kept, tortured, or even killed.

15. Declaration of charges proven

The Court of Appeal considers it legally and convincingly proven that the accused did not commit the offences charged under Count 1, first cumulative/alternative, Count 2, first cumulative/alternative, Count 3, first cumulative/alternative, and Count 4, first cumulative/alternative.

The declaration of charges proven is attached to this judgment as
Annex 2 .

Any additional charges or charges formulated otherwise have not been proven. The accused should be acquitted of these.

Insofar as the indictment contains linguistic and/or writing errors, these have been corrected in the declaration of charges proven. As appears from that which was discussed during the hearing, the defence of the accused was not harmed as a result.

16. Criminal nature of the facts proven

The facts proven under Count 1 constitute:

co-perpetration in the violation of the laws and customs of war, while the offence is likely to cause death or severe bodily harm to another person and while the offence involves inhuman treatment, committed several times

and

co-perpetration in the violation of the laws and customs of war, while the offence involves forcing in concert other persons to do, not to do or to tolerate something and while the offence is the expression of a policy of systematic terror or unlawful actions against the entire population or a specific group thereof and while the offence involves a breach of a given promise, committed several times.

The facts proven under Count 2 constitute:

co-perpetration in the violation of the laws and customs of war, while the offence was likely to cause the death or severe bodily harm of another person and while the offence involves inhuman treatment, committed several times

and

co-perpetration in the violation of the laws and customs of war, while the offence results in the death or severe bodily harm of another person and while the offence involves forcing in concert other persons to do, not to do or to tolerate something and while the offence is the expression of a policy of systematic terror or unlawful actions against the entire population or a specific group thereof and while the offence involves a breach of a given promise, committed several times.

The facts proven under Count 3 constitute:

co-perpetration in the violation of the laws and customs of war, while the offence results in the death of another person and while the offence involves violence in concert against one or more persons and while the offence is the expression of a policy of systematic terror or unlawful actions against the entire population or a specific group thereof and while the offence involves a breach of a given promise, committed several times.

The facts proven under Count 4 constitute:

co-perpetration in the violation of the laws and customs of war, while the offence is likely to cause death or severe bodily harm to another person and while the offence involves inhuman treatment, committed several times

and

co-perpetration in the violation of the laws and customs of war, while the offence involves forcing in concert other persons to do, not to do or to tolerate something and while the offence is the expression of a policy of systematic terror or unlawful actions against the entire population or a specific group thereof and while the offence involves a breach of a given promise, committed several times.

17. Criminal liability of the accused

No circumstance that might exclude the criminal liability of the accused has become plausible. The accused is therefore criminally liable.

18. Grounds for the sentence

The Court of Appeal has determined the sentence to be imposed on the basis of the severity of the offences and the circumstances under which they were committed, and on the basis of the personality and the personal circumstances of the accused, as these have appeared from the Court of Appeal hearing.

In so doing, the Court of Appeal has particularly taken the following into account.

The severity of the offences

In the period of 1977-1978, the accused was the permanent representative of the Derg in the Ethiopian province of Gojjam, as chairman of the revolutionary coordinating campaign committee. At the time, a non-international armed conflict was in progress in Ethiopia, with a bloody struggle between the regime and opposition movements such as the EPRP. Gojjam was one of the conflict areas, and the accused had the task of acting against the opposition in this province. The accused executed this task in a very harsh way. Alleged opponents of the Derg regime were arrested on a large scale during so-called exposure meetings and detained as political prisoners. Many were imprisoned without any form of trial in the military camp and/or the police camp and subsequently lived in an uncertain and very fearful situation. The conditions in the cells of the police camp and the prison were degrading. The cells were overcrowded, prisoners had to sleep on the floor, there were insufficient sanitary facilities, and the hygienic situation was abominable, whether or not food was provided depended on the family of the (fellow) prisoners, there were no medical facilities, and a group of prisoners spent months in a dark room. In the police camp, prisoners were tortured during interrogations. One of the prisoners was in such a poor state after torture that he died. The information obtained from the interrogations was then used to determine the sentence. The accused pronounced many extrajudicial sentences, including a large number of death sentences. No fewer than 75 people were then executed in a gruesome way in a church near the prison grounds.

In this way, the accused, together with others, is guilty of a multitude of war crimes, namely arbitrary deprivation of liberty, and imprisonment under degrading conditions of hundreds of persons, torture, imposing and executing extrajudicial prison sentences and the gruesome killing of a large group of people.

The Court of Appeal has not found proven that a superior intentionally accepted his subordinate to commit the offence, or of instigation. The Court of Appeal does, however, see cause to take the position of the accused into account when determining the severity of the sentence. ^[239] The accused having committed the offences from his position as a representative of the Derg; he determined what had to be done. With regard to all offences, he can be seen as the instigator and he has pulled others, his co-perpetrators, along with him. The Court of Appeal firmly reproaches the accused for this.

Through his actions, the accused deprived his compatriots in an extremely cold and calculating manner of their essential rights: the right to freedom, the right not to be treated cruelly or inhumanly or not to be tortured, and the most essential right: the right to life. The actions of the accused were apparently aimed at eliminating political opponents of the regime for a longer period of time, or permanently. He did this without having consideration for the dignity of his political opponents. With his actions, the accused caused immeasurable suffering to the victims and their relatives. Many of the victims were still children at the time or had only just reached adulthood. The offences committed by the accused have left deep wounds with the victims and the survivors. Part of the substantive hearing was attended by four victims/survivors who had travelled to the Netherlands especially for this case. This indicates that, after more than 40 years, they still suffer from what the accused did to them or their loved ones. They, and a fifth victim who attended by video link, have clearly conveyed this in their victim statements during the hearing.

With his actions, the accused also grossly violated the Ethiopian and international - and with that also the Dutch - legal order. The purpose of the sentence is also to make clear to the international community how severe these offences are and to send out a signal that action is being taken against them.

The person of the accused

The Court of Appeal has taken into account an excerpt regarding the accused from the judicial records dated 18 March 2022, which reveals that the accused has not been convicted before for committing a criminal offence.

The Court of Appeal has, ex officio, asked itself the question of whether the young age of the accused at the time of the charges (23/24 years) is a relevant factor in the severity of the sentence. It is somewhat conceivable that he was not yet capable of going against the policy as dictated and determined by Mengistu in particular and/or was afraid of suffering the same fate as others within the Derg who did so and were killed. As the accused - also when asked - did not give any indication in that direction, the Court of Appeal has answered this question in the negative.

Furthermore, the Court of Appeal has taken the accused’s state of health into account. It is a fact that the accused is severely ill and is not expected to live much longer. In this respect, the Court of Appeal has taken into account the expert reports of psychiatrist Gosker (dated 10 December 2021 and 30 March 2022) and of forensic physician Menke (dated 30 January 2022 and 31 March 2022), which were drawn up in the run-up to the substantive hearing. In view of the severity and scope of the offences committed, the Court of Appeal sees no possibility to take this into consideration as a mitigating circumstance.

Considerations relating to the punishment

In view of the exceptional severity of the offences, the Court of Appeal believes that the severest punishment possible is appropriate.

The Court of Appeal is of the opinion that a temporary prison sentence does insufficient justice to the nature, severity and scope of the offences committed by the accused.

All that can be envisaged is the imposition of life imprisonment. The Court of Appeal will therefore impose this, in conformity with the request of the Public Prosecution Service. The Court of Appeal sees no counter-arguments for imposing a life sentence. The Court of Appeal has asked itself the question whether imposing a life sentence is not in violation of Article 3 ECHR. From ECHR case law in connection with this Article, it follows that also a person sentenced to life imprisonment must always have the prospect of release. The Dutch system with regard to persons sentenced to life imprisonment has been adjusted, partly in view of the implementation of the Advisory Board Decision for Persons Sentenced to Life Imprisonment - and the Advisory Board for Persons sentenced to Life Imprisonment established on the basis thereof (since 2017). The Dutch system currently provides for a system of reassessment after 25 years of imprisonment, whereby, if appropriate, the life sentence can be shortened by means of a pardon. Previously, the Supreme Court has ruled that with this system of reassessment Dutch criminal procedure (whereby pardons were rarely, if ever, granted) the imposition of life imprisonment is not in violation of Article 3 above. ^[240]

The Court of Appeal is aware of the fact that at the moment a number of complaints have been brought before the ECHR about the execution of life sentences imposed in the Netherlands and that in this respect questions have been put to the Dutch government about - in brief - the factual and legal perspective. ^[241] The Court of Appeal has taken good note of this but sees no reason in this to judge differently about the compatibility of the life sentence with Article 3 ECHR, nor to refrain from imposing that sentence in this case.

Finally, the Court of Appeal ascertained that the reasonable period of time as referred to in Article 6, Paragraph 1, of the ECHR had been violated neither in the first instance nor on appeal. The accused was taken into custody on 29 September 2015, at which point the prosecution commenced, and the District Court passed a final decision on 15 December 2017. The reasonable period of time for hearing the case in the first instance was therefore exceeded by more than 8 months.

On appeal, the reasonable period of time has been exceeded by more than 3 years, since an appeal was lodged on behalf of the accused on 28 December 2017 and the Court of Appeal passes its final judgment on 8 June 2022.

All in all, the case took more than six years and eight months to be heard in both instances.

As the life sentence to be imposed on the accused does not by its nature lend itself to a reduction of the sentence, there is no possibility to attach any legal consequence to the opinion that the reasonable period of time has been exceeded. Therefore, the Court of Appeal will suffice with merely noting that the reasonable period of time has been exceeded.

The Court of Appeal - all things considered – is of the opinion that a life sentence constitutes an appropriate and necessary reaction.

19. Claims for damages

The claims of the injured parties

In the first instance, claims for damages were submitted by [person 348], [person 318], [person 334], [person 335], [person 319] and [person 320], in each case for an amount of € 226.89.

By a letter dated 23 June 2017, the then counsels provided an explanation to the claims and reported that it concerns non-material damage suffered by said persons as a result of the offences committed by the accused. As an annex, the counsels enclosed an Expert Opinion on Ethiopian law prepared by Gebrehiwot Hadush and Abiy Chelbeka attached to the
Mekelle University College of Law in Ethiopia .

On appeal, the injured parties have maintained their claims. Prior to the substantive hearing, a written round took place during which the lawyers of the injured parties, the Public Prosecution Service, and the defence presented their respective positions.

Injured party [person 348].

In the present criminal proceedings [person 348] has joined as an injured party and has submitted a claim for compensation of the non-material damage suffered as a result of the charges under Counts 1 and 3 against the accused, to the amount of € 226.89. [Person 348] is the sister of [person 4], one of the victims of the charges under Counts 1 and 3.

The injured party was declared inadmissible in her claim by the District Court. On appeal, this claim is considered up to the amount claimed in the first instance and upheld on appeal.

The Public Prosecution Service has advocated that the claim of the injured party be approved.

Although the injured party’s claim has not been contested, the Court of Appeal will have to examine ex officio whether her claim is admissible.

First of all, the Court of Appeal must establish the basis of the claim.

In so doing, the Public Prosecution Service has taken the position that the injured party, as the heir of her brother, has claimed the non-material damage he suffered and that her claim is therefore admissible.

At the appeal hearing of 13 April 2022, the counsel for the injured party, Ms Vossenberg LLM, informed the Court of Appeal, when asked, that the submitted claim refers to the injured party’s
own damage caused by the death of her brother and that, according to Ethiopian law, she is entitled to submit a claim as a representative of the family. From the explanatory notes to the criminal injuries compensation form, the Court of Appeal also concludes that the claim refers to the injured party’s own damage.

The Court of Appeal, together with the Public Prosecution Service and unlike the counsel for the injured party, has further established that in the formal assessment of the claim of an injured party, which includes the admissibility, Dutch law applies pursuant to Article 21a of the WIM.

The Court of Appeal has established, following on from the District Court, that the brother of [person 348] has suffered direct damage because of the proven offences under Counts 1 and 3. Pursuant to the provisions of article 51f, Paragraph 2, CCP, in the event that the person who has suffered direct damage because of the offence has died, his heirs may join in respect of their claim acquired by universal title, and the persons referred to in Article 108, Paragraphs 1 and 2, in Book 6 of the Civil Code in respect of the claims referred to there. However, such claims concern compensation for
material damage. [Person 348] is claiming compensation for the
non-material damage she has suffered.

Although the legislator has now provided a possibility to claim this non-material damage by introducing the Emotional Damage Act ^[242] that entered into force on 1 January 2019, this regulation has no retroactive effect. This means that compensation on the basis of this Act can only be awarded in respect of offences committed after this Act came into force.

The Court of Appeal realizes that the death of her brother at the time will undoubtedly have brought much emotional suffering to the injured party. This was inter alia expressed in the right to speak exercised on her behalf at the appeal hearing on 13 April 2022.

However, the Court of Appeal has no choice but to rule that her claim is inadmissible. The claim can only be brought before the civil court.

Injured parties [person 318], [person 334], [person 335], [person 319] and [person 320].

In the present criminal proceedings [person 318], [person 334], [person 335], [person 319] and [person 320] have joined as injured parties and have submitted a claim for compensation of the non-material damage suffered as a result of the charges made against the accused, each for an amount of € 226.89.

On appeal, these claims are always set up to the amount awarded in full in the first instance and upheld on appeal.

The Advocate General has moved that the claims of the injured parties be approved.

The claims of the injured parties have not been contested by and on behalf of the accused.

Following the District Court’s opinion, the Court of Appeal considers the following. Pursuant to Article 3, Paragraph 1, of the Unlawful Act Act, Ethiopian law applies to the substantive assessment of the claims.

From the expert opinion mentioned above, it can be concluded that the Ethiopian Civil Code recognises the possibility of so-called intentional liability, i.e., liability resulting from intentional acts or omissions on the part of the accused. In addition, Ethiopian law identifies three elements that must be present in order to establish that a wrongful act has taken place, namely: there must be a basis for liability, the victim needs to have suffered damage, and there must be a causal connection between the harmful event and the damage.

The Court of Appeal is of the opinion that, partly in view of the aforementioned unlawful act concept, it has become sufficiently plausible that the injured parties have suffered non-material damage and that this damage is the direct consequence of the proven offences under Count 1 (against [person 334], [person 335], [person 319], [person 318] and [person 320]), under Count 2 (against [person 319]), and under Count 4 (against [person 334], [person 335], and [person 318]). The claims for non-material damage suffered lend themselves – within reasonable bounds - for an award up to the amount claimed, to be increased by the claimed statutory interest (under Dutch law) on this amount from 31 July 1978 until the day of full payment.

Order to pay the costs of the proceedings

In view of the above, the accused must be ordered to pay the costs incurred by injured parties [person 318], [person 334], [person 335], [person 319], and [person 320] up to the present judgment in connection with the claim, which costs the Court of Appeal estimates at nil for the time being, and to pay the costs which the injured parties still have to incur for the enforcement of this judgment.

With regard to injured party [person 348], the Court of Appeal sees cause to determine that the costs incurred in connection with the handling of the claim submitted by the injured party should be mutually compensated, so that the accused and the injured party will bear their own costs to that extent.

20. Applicable legal provisions

The Court of Appeal has taken into account Article 8 (old) of the Wartime Offences Act and Articles 47 and 57 of the Criminal Code, as they apply or applied in law.

21. JUDGMENT

The Court of Appeal:

Declares the accused and the Public Prosecutor inadmissible in the appeal, insofar as it is directed against the charges under Count 2, insofar as related to [person 329] and [person 330], and the charges under Count 4, insofar as related to [person 325], [person 319] and [person 320].

Sets aside the remainder of the decision appealed against and, accordingly, pronounces judgment anew:

Declares that it has not been proven that the accused has committed the charges under Count 1 second cumulative/alternative, under 2 second cumulative/alternative, under 3 second cumulative/alternative, and under 4 second and third cumulative/alternative and acquits the accused thereof.

Declares, as considered above, that it has been proven that the accused has committed the charges under Count 1 first cumulative/alternative, Count 2 first cumulative/alternative, Count 3 first cumulative/alternative and Count 4 first cumulative/alternative.

Declares that any additional charges or charges formulated otherwise than those proven above have not been proven and acquits the accused thereof.

Declares the facts proven under Count 1 first cumulative/alternative, 2 first cumulative/alternative, 3 first cumulative/alternative and 4 first cumulative/alternative punishable, qualifies them as stated above and declares the accused punishable.

Sentences the accused to
life imprisonment.

Claim of injured party [person 348]

Declares injured party
[person 348] inadmissible in their claim for damages and specifies that the injured party can only bring the claim before the civil court.

Orders the accused and injured party [person 348] each to bear their own costs.

Claim of injured party [person 318]

Grants the claim for damages of injured party [person 318] in respect of the facts proven under Counts 1 and 4 to the amount of
€ 226.89 (two hundred and twenty-six euros and eighty-nine cents) in respect of non-material damage , increased by the statutory interest from the starting date stated below until the day of payment.

Orders the accused to pay the costs incurred by the injured party and still to be incurred for the purpose of enforcement, estimated at nil up to the date of this judgment.

Sets the starting date of the legal interest for the non-material damage at 31 July 1978.

Claim of injured party [person 335]

Grants the claim for damages of injured party [person 335] in respect of the facts proven stated under Count 1, to the amount of
€ 226.89 (two hundred and twenty-six euros and eighty-nine cents) in respect of non-material damage , increased by the statutory interest from the starting date stated below until the day of payment.

Orders the accused to pay the costs incurred by the injured party and still to be incurred for the purpose of enforcement, estimated at nil up to the date of this judgment.

Sets the starting date of the legal interest for the non-material damage at 31 July 1978.

Claim of injured party [person 319]

Grants the claim for damages of injured party [person 319] in respect of the facts proven under Counts 1 and 2, to the amount of
€ 226.89 (two hundred and twenty-six euros and eighty-nine cents) in respect of non-material damage , increased by the statutory interest from the starting date stated below until the day of payment.

Orders the accused to pay the costs incurred by the injured party and still to be incurred for the purpose of enforcement, estimated at nil up to the date of this judgment.

Sets the starting date of the legal interest for the non-material damage at 31 July 1978.

Claim of injured party [person 320]

Grants the claim for damages of injured party [person 320] in respect of the facts proven under Count 1 to the amount of
€ 226.89 (two hundred and twenty-six euros and eighty-nine cents) in respect of non-material damage , increased by the statutory interest from the starting date stated below until the day of payment.

Orders the accused to pay the costs incurred by the injured party and still to be incurred for the purpose of enforcement, estimated at nil up to the date of this judgment.

Sets the starting date of the legal interest for the non-material damage at 31 July 1978.

Claim of injured party [person 334].

Grants the claim for damages of injured party [person 334] in respect of the facts proven under Count 1 to the amount of
€ 226.89 (two hundred and twenty-six euros and eighty-nine cents) in respect of non-material damage , increased by the statutory interest from the starting date stated below until the day of payment.

Orders the accused to pay the costs incurred by the injured party and still to be incurred for the purpose of enforcement, estimated at nil up to the date of this judgment.

Sets the starting date of the legal interest for the non-material damage at 31 July 1978.

This judgment was delivered by L.C. van Walree LLM,

B. Stapert LLM, and Y.C. Bours LLM, in the presence of S. Johannes LLM, and J. van der Vegte LLM, Court Clerks.

It was pronounced at the public hearing of the Court of Appeal on 8 June 2022.

Annex 1

Indictment

The accused - after adjustment of the definition of the indictment on the basis of Article 314a of the Code of Criminal Procedure and after amendment of the indictment during the District Court hearing in the first instance, and insofar as the contents are still addressed on appeal – has been charged with the following:

1.

Deprivation of liberty and inhuman treatment from 1 February 1978 up to and including 24 August 1978

1.1

co-perpetration

he, at one or more point(s) in time in the period from 1 February 1978 up to and including 31 July 1978, in any case in 1978, in Debre Marcos and/or Metekel, in Gojam province, or at least at localities in Ethiopia,

jointly and in conjunction with another person or persons,

(on each occasion) violated the laws and customs of war, while

• those acts resulted in severe bodily harm and/or
• those acts involved violence in concert against persons or violence against dead, ill or wounded persons and/or
• those acts involved forcing others in concert to do, not to do or to tolerate something and/or
• those acts were expressions of a policy of systematic terror and/or unlawful action against the entire population or a specific group thereof and/or
• those acts involved a breach of a promise made; and/or
• death or grievous bodily harm to persons other than the accused was likely as a result of those acts;
• those acts involved inhuman treatment,

consisting of the fact that he, the accused, there and then (on each occasion) violated

- the provisions of ‘Common’ Article 3 of the Geneva Conventions of 12 August 1949 and/or

- customary international humanitarian law and/or

- ( in particular) the prohibition under customary international law on arbitrary deprivation of liberty

in connection with a (non-international) armed conflict within the territory of Ethiopia, treated persons who did not (or no longer) take part in the hostilities directly, namely civilians and/or personnel of armed forces who had laid down their weapons and/or those who were placed hors de combat by sickness, wounds, detention, or any other cause, namely

1. person 1]

2. [ person 2]

3. [ person 3]

4. [ person 4]

5. [ person 5]

6. [ person 6]

7. [ person 7]

8. [ person 8]

9. [ person 9]

10. [ person 10]

11. [ person 11]

12. [ person 12]

13. [ person 13]

14. [ person 14]

15. [ person 15]

16. [ person 16]

17. [ person 17]

18. [ person 18]

19. [ person 19]

20. [ person 20]

21. [ person 21]

22. [ person 22]

23. [ person 23]

24. [ person 24]

25. [ person 25]

26. [ person 26]

27. [ person 27]

28. [ person 28]

29. [ person 29]

30. [ person 30]

31. [ person 31]

32. [ person 32]

33. [ person 33]

34. [ person 34]

35. [ person 35]

36. [ person 36]

37. [ person 37]

38. [ person 38]

39. [ person 39]

40. [ person 40]

41. [ person 41]

42. [ person 42]

43. [ person 43]

44. [ person 44]

45. [ person 45]

46. [ person 46]

47. [ person 47]

48. [ person 48]

49. [ person 49]

50. [ person 50]

51. [ person 51]

52. [ person 52]

53. [ person 53]

54. [ person 54]

55. [ person 55]

56. [ person 56]

57. [ person 57]

58. [ person 58]

59. [ person 59]

60. [ person 60]

61. [ person 61]

62. [ person 62]

63. [ person 63]

64. [ person 64]

65. [ person 65]

66. [ person 66]

67. [ person 67]

68. [ person 68]

69. [ person 69]

70. [ person 70]

71. [ person 71]

72. [ person 72]

73. [ person 73]

74. [ person 74]

75. [ person 75]

76. [ person 76]

77. [ person 77]

78. [ person 78]

79. [ person 79]

80. [ person 80]

81. [ person 81]

82. [ person 82]

83. [ person 83]

84. [ person 84]

85. [ person 85]

86. [ person 86]

87. [ person 87]

88. [ person 88]

89. [ person 89]

90. [ person 90]

91. [ person 91]

92. [ person 92]

93. [ person 93]

94. [ person 94]

95. [ person 95]

96. [ person 96]

97. [ person 97]

98. [ person 98]

99. [ person 99]

100. [person 100]

101. [person 101]

102. [person 102]

103. [person 103]

104. [person 104]

105. [person 105]

106. [person 106]

107. [person 107]

108. [person 108]

109. [person 109]

110. [person 110]

111. [person 111]

112. [person 112]

113. [person 113]

114. [person 114]

115. [person 115]

116. [person 116]

117. [person 117]

118. [person 118]

119. [person 119]

120. [person 120]

121. [person 121]

122. [person 122]

123. [person 123]

124. [person 124]

125. [person 125]

126. [person 126]

127. [person 127]

128. [person 128]

129. [person 129]

130. [person 130]

131. [person 131]

132. [person 132]

133. [person 133]

134. [person 134]

135. [person 135]

136. [person 136]

137. [person 137]

138. [person 138]

139. [person 139]

140. [person 140]

141. [person 141]

142. [person 142]

143. [person 143]

144. [person 144]

145. [person 145]

146. [person 146]

147. [person 147]

148. [person 148]

149. [person 149]

150. [person 150]

151. [person 151]

152. [person 152]

153. [person 153]

154. [person 154]

155. [person 155]

156. [person 156]

157. [person 157]

158. [person 158]

159. [person 159]

160. [person 160]

161. [person 161]

162. [person 162]

163. [person 163]

164. [person 164]

165. [person 165]

166. [person 166]

167. [person 167]

168. [person 168]

169. [person 169]

170. [person 170]

171. [person 171]

172. [person 172]

173. [person 173]

174. [person 174]

175. [person 175]

176. [person 176]

177. [person 177]

178. [person 178]

179. [person 179]

180. [person 180]

181. [person 181]

182. [person 182]

183. [person 183]

184. [person 184]

185. [person 185]

186. [person 186]

187. [person 187]

188. [person 188]

189. [person 189]

190. [person 190]

191. [person 191]

192. [person 192]

193. [person 193]

194. [person 194]

195. [person 195]

196. [person 196]

197. [person 197]

198. [person 198]

199. [person 199]

200. [person 200]

201. [person 201]

202. [person 202]

203. [person 203]

204. [person 204]

205. [person 205]

206. [person 206]

207. [person 207]

208. [person 208]

209. [person 209]

210. [person 210]

211. [person 211]

212. [person 212]

213. [person 213]

214. [person 214]

215. [person 215]

216. [person 216]

217. [person 217]

218. [person 218]

219. [person 219]

220. [person 220]

221. [person 221]

222. [person 222]

223. [person 223]

224. [person 224]

225. [person 225]

226. [person 226]

227. [person 227]

228. [person 228]

229. [person 229]

230. [person 230]

231. [person 231]

232. [person 232]

233. [person 233]

234. [person 234]

235. [person 235]

236. [person 236]

237. [person 237]

238. [person 238]

239. [person 239]

240. [person 240]

241. [person 241]

242. [person 242]

243. [person 243]

244. [person 244]

245. [person 245]

246. [person 246]

247. [person 247]

248. [person 248]

249. [person 249]

250. [person 250]

251. [person 251]

252. [person 252]

253. [person 253]

254. [person 254]

255. [person 255]

256. [person 256]

257. [person 257]

258. [person 258]

259. [person 259]

260. [person 260]

261. [person 261]

262. [person 262]

263. [person 263]

264. [person 264]

265. [person 265]

266. [person 266]

267. [person 267]

268. [person 268]

269. [person 269]

270. [person 270]

271. [person 271]

272. [person 272]

273. [person 273]

274. [person 274]

275. [person 275]

276. [person 276]

277. [person 277]

278. [person 278]

279. [person 279]

280. [person 280]

281. [person 281]

282. [person 282]

283. [person 283]

284. [person 284]

285. [person 285]

286. [person 286]

287. [person 287]

288. [person 288]

289. [person 289]

290. [person 290]

291. [person 291]

292. [person 292]

293. [person 293]

294. [person 294]

295. [person 295]

296. [person 296]

297. [person 297]

298. [person 298]

299. [person 299]

300. [person 300]

301. [person 301]

302. [person 302]

303. [person 303]

304. [person 304]

305. [person 305]

306. [person 306]

307. [person 307]

308. [person 308]

309. [person 309]

310. [person 310]

311. [person 311]

312. [person 312]

313. [person 313]

314. [person 325]

315. [person 319]

316. [person 320]

317. [person 314]

318. [person 315]

319. [person 316]

320. [person 317]

321. [person 318]

and/or one or more other person(s)

- cruelly and/or inhumanly, and/or

- ( each time) assaulted their personal dignity (and/or) (in particular) treated the aforementioned persons in a humiliating and/or degrading manner and/or

- pronounced judgments against them and/or enforced these without prior trial by a lawfully constituted tribunal offering all the legal guarantees recognised as indispensable by civilised nations and/or

- arbitrarily deprived them of their liberty,

which cruel and/or inhuman treatment and/or which attacks upon personal dignity and/or humiliating and/or degrading treatment and/or which pronouncement and/or enforcement of sentences and/or which arbitrary deprivation of liberty as aforementioned entailed the accused and/or one or more co-perpetrator(s)

• pronouncing (prison) sentences and/or other freedom restricting measures (at exposure meetings) against the aforementioned person(s) and/or enforced them and/or had them enforced without first being tried by an (independent) court and/or without having been given a fair trial and/or (in particular) without having been tried by an independent and impartial body and/or without having been promptly informed of the accusations against them and/or without having had the necessary rights and means of defence at their disposal and/or in violation of the prohibition of collective punishment and/or in violation of the principle of legality and/without the presumption of innocence and/or without being able to exercise the right to be present at their own trial and/or without being able to exercise the right not to participate in their own conviction and/or without being able to exercise the right to be advised of the legal and other remedies available and of the time limits within which they must be exercised
• searched or ordered the search of the home of the abovementioned person(s) and/or arrested them and/or took and/or had them takento a police station and/or prison and/or
• kept the aforementioned person(s) imprisoned with too many people in spaces that are too small and/or in spaces in which no or hardly any daylight penetrated and/or without them being able to make sufficient use of sanitary facilities and/or while the food and/or drinking water which they received was bad and/or filthy and/or insufficient and/or they received no or insufficient medical care

(Art. 8 WOS (old) in conjunction with 47 CC)

and/or

1.2

intentionally accepting

that persons subordinate to the accused (such as (members of) kadres and/or kebeles and/or police officers and/or guards and/or interrogators) and/or one or more other(s) together and

in association

at one or more point(s) in time in the period from 1 February 1978 up to and including 31 July 1978, in any case in 1978, in Debre Marcos and/or Metekel, in Gojam province, or at least at localities in Ethiopia,

(on each occasion) violated the laws and customs of war, while

• those acts resulted in severe bodily harm and/or
• those acts involved violence in concert against persons or violence against dead, ill or wounded persons and/or
• those acts involved forcing others in concert to do, not to do or to tolerate something and/or
• those acts were expressions of a policy of systematic terror and/or unlawful action against the entire population or a specific group thereof and/or
• those acts involved a breach of a promise made; and/or
• death or grievous bodily harm to persons other than themselves was likely as a result of those acts
• those acts involved inhuman treatment,

consisting of the fact that at that time and there (on each occasion) they violated

- the provisions of ‘Common’ Article 3 of the Geneva Conventions of 12 August 1949 and/or

- customary international humanitarian law and/or

- ( in particular) the prohibition under customary international law on arbitrary deprivation of liberty

in connection with an (non-international) armed conflict within the territory of Ethiopia, persons who did not or no longer took part directly in the hostilities, namely civilians and/or personnel of armed forces who had laid down their weapons and/or those who were hors de combat due to sickness, wounds, detention or any other cause, namely

1. person 1]

2. [ person 2]

3. [ person 3]

4. [ person 4]

5. [ person 5]

6. [ person 6]

7. [ person 7]

8. [ person 8]

9. [ person 9]

10. [ person 10]

11. [ person 11]

12. [ person 12]

13. [ person 13]

14. [ person 14]

15. [ person 15]

16. [ person 16]

17. [ person 17]

18. [ person 18]

19. [ person 19]

20. [ person 20]

21. [ person 21]

22. [ person 22]

23. [ person 23]

24. [ person 24]

25. [ person 25]

26. [ person 26]

27. [ person 27]

28. [ person 28]

29. [ person 29]

30. [ person 30]

31. [ person 31]

32. [ person 32]

33. [ person 33]

34. [ person 34]

35. [ person 35]

36. [ person 36]

37. [ person 37]

38. [ person 38]

39. [ person 39]

40. [ person 40]

41. [ person 41]

42. [ person 42]

43. [ person 43]

44. [ person 44]

45. [ person 45]

46. [ person 46]

47. [ person 47]

48. [ person 48]

49. [ person 49]

50. [ person 50]

51. [ person 51]

52. [ person 52]

53. [ person 53]

54. [ person 54]

55. [ person 55]

56. [ person 56]

57. [ person 57]

58. [ person 58]

59. [ person 59]

60. [ person 60]

61. [ person 61]

62. [ person 62]

63. [ person 63]

64. [ person 64]

65. [ person 65]

66. [ person 66]

67. [ person 67]

68. [ person 68]

69. [ person 69]

70. [ person 70]

71. [ person 71]

72. [ person 72]

73. [ person 73]

74. [ person 74]

75. [ person 75]

76. [ person 76]

77. [ person 77]

78. [ person 78]

79. [ person 79]

80. [ person 80]

81. [ person 81]

82. [ person 82]

83. [ person 83]

84. [ person 84]

85. [ person 85]

86. [ person 86]

87. [ person 87]

88. [ person 88]

89. [ person 89]

90. [ person 90]

91. [ person 91]

92. [ person 92]

93. [ person 93]

94. [ person 94]

95. [ person 95]

96. [ person 96]

97. [ person 97]

98. [ person 98]

99. [ person 99]

100. [person 100]

101. [person 101]

102. [person 102]

103. [person 103]

104. [person 104]

105. [person 105]

106. [person 106]

107. [person 107]

108. [person 108]

109. [person 109]

110. [person 110]

111. [person 111]

112. [person 112]

113. [person 113]

114. [person 114]

115. [person 115]

116. [person 116]

117. [person 117]

118. [person 118]

119. [person 119]

120. [person 120]

121. [person 121]

122. [person 122]

123. [person 123]

124. [person 124]

125. [person 125]

126. [person 126]

127. [person 127]

128. [person 128]

129. [person 129]

130. [person 130]

131. [person 131]

132. [person 132]

133. [person 133]

134. [person 134]

135. [person 135]

136. [person 136]

137. [person 137]

138. [person 138]

139. [person 139]

140. [person 140]

141. [person 141]

142. [person 142]

143. [person 143]

144. [person 144]

145. [person 145]

146. [person 146]

147. [person 147]

148. [person 148]

149. [person 149]

150. [person 150]

151. [person 151]

152. [person 152]

153. [person 153]

154. [person 154]

155. [person 155]

156. [person 156]

157. [person 157]

158. [person 158]

159. [person 159]

160. [person 160]

161. [person 161]

162. [person 162]

163. [person 163]

164. [person 164]

165. [person 165]

166. [person 166]

167. [person 167]

168. [person 168]

169. [person 169]

170. [person 170]

171. [person 171]

172. [person 172]

173. [person 173]

174. [person 174]

175. [person 175]

176. [person 176]

177. [person 177]

178. [person 178]

179. [person 179]

180. [person 180]

181. [person 181]

182. [person 182]

183. [person 183]

184. [person 184]

185. [person 185]

186. [person 186]

187. [person 187]

188. [person 188]

189. [person 189]

190. [person 190]

191. [person 191]

192. [person 192]

193. [person 193]

194. [person 194]

195. [person 195]

196. [person 196]

197. [person 197]

198. [person 198]

199. [person 199]

200. [person 200]

201. [person 201]

202. [person 202]

203. [person 203]

204. [person 204]

205. [person 205]

206. [person 206]

207. [person 207]

208. [person 208]

209. [person 209]

210. [person 210]

211. [person 211]

212. [person 212]

213. [person 213]

214. [person 214]

215. [person 215]

216. [person 216]

217. [person 217]

218. [person 218]

219. [person 219]

220. [person 220]

221. [person 221]

222. [person 222]

223. [person 223]

224. [person 224]

225. [person 225]

226. [person 226]

227. [person 227]

228. [person 228]

229. [person 229]

230. [person 230]

231. [person 231]

232. [person 232]

233. [person 233]

234. [person 234]

235. [person 235]

236. [person 236]

237. [person 237]

238. [person 238]

239. [person 239]

240. [person 240]

241. [person 241]

242. [person 242]

243. [person 243]

244. [person 244]

245. [person 245]

246. [person 246]

247. [person 247]

248. [person 248]

249. [person 249]

250. [person 250]

251. [person 251]

252. [person 252]

253. [person 253]

254. [person 254]

255. [person 255]

256. [person 256]

257. [person 257]

258. [person 258]

259. [person 259]

260. [person 260]

261. [person 261]

262. [person 262]

263. [person 263]

264. [person 264]

265. [person 265]

266. [person 266]

267. [person 267]

268. [person 268]

269. [person 269]

270. [person 270]

271. [person 271]

272. [person 272]

273. [person 273]

274. [person 274]

275. [person 275]

276. [person 276]

277. [person 277]

278. [person 278]

279. [person 279]

280. [person 280]

281. [person 281]

282. [person 282]

283. [person 283]

284. [person 284]

285. [person 285]

286. [person 286]

287. [person 287]

288. [person 288]

289. [person 289]

290. [person 290]

291. [person 291]

292. [person 292]

293. [person 293]

294. [person 294]

295. [person 295]

296. [person 296]

297. [person 297]

298. [person 298]

299. [person 299]

300. [person 300]

301. [person 301]

302. [person 302]

303. [person 303]

304. [person 304]

305. [person 305]

306. [person 306]

307. [person 307]

308. [person 308]

309. [person 309]

310. [person 310]

311. [person 311]

312. [person 312]

313. [person 313]

314. [person 325]

315. [person 319]

316. [person 320]

317. [person 314]

318. [person 315]

319. [person 316]

320. [person 317]

321. [person 318]

and/or one or more other person(s)

- cruelly and/or inhumanly, and/or

- ( each time) assaulted their personal dignity (and/or) (in particular) treated the aforementioned persons in a humiliating and/or degrading manner and/or

- pronounced judgments against them and/or enforced these without prior trial by a lawfully constituted tribunal offering all the legal guarantees recognised as indispensable by civilised nations and/or

- arbitrarily deprived them of their liberty,

which cruel and/or inhuman treatment and/or which attacks upon personal dignity and/or humiliating and/or degrading treatment and/or which pronouncement and/or enforcement of sentences and/or which arbitrary deprivation of liberty as aforementioned entailed the accused and/or one or more co-perpetrator(s)

• pronouncing (prison) sentences and/or other freedom restricting measures (at exposure meetings) against the aforementioned person(s) and/or enforced them and/or had them enforced without first being tried by an (independent) court and/or without having been given a fair trial and/or (in particular) without having been tried by an independent and impartial body and/or without having been promptly informed of the accusations against them and/or without having had the necessary rights and means of defence at their disposal and/or in violation of the prohibition of collective punishment and/or in violation of the principle of legality and/without the presumption of innocence and/or without being able to exercise the right to be present at their own trial and/or without being able to exercise the right not to participate in their own conviction and/or without being able to exercise the right to be advised of the legal and other remedies available and of the time limits within which they must be exercised
• searched or ordered the search of the home of the abovementioned person(s) and/or arrested them and/or took and/or had them takento a police station and/or prison and/or
• kept the aforementioned person(s) imprisoned with too many people in spaces that are too small and/or in spaces in which no or hardly any daylight penetrated and/or without them being able to make sufficient use of sanitary facilities and/or while the food and/or drinking water which they received was bad and/or filthy and/or insufficient and/or they received no or insufficient medical care

which the accused, being a representative of the Ethiopian government (Derg) in Gojam province, at one or more time(s) in the period between 1 February 1978 up to and including 31 July 1978, in any case in 1978, in Debre Marcos and/or Metekel, in Gojam province, or at least in localities in Ethiopia (on each occasion) intentionally accepted and/or (in particular) failed to take sufficient measures to prevent and/or stop and/or punish the aforementioned offences

(Art. 8 in conjunction with 9 WOS)

and/or

1.3

aiding and abetting

that head(s) of prison(s) in Debre Marcos and/or Metekel and/or (members of) kadres and/or kebeles and/or police officers and/or guards and/or interrogators and/or one or more other(s) together and

in association

at one or more point(s) in time in the period from 1 February 1978 up to and including 24 August 1978, in any case in 1978, in Debre Marcos and/or Metekel, in Gojam province, or at least at localities in Ethiopia,

(on each occasion) violated the laws and customs of war, while

• those acts resulted in severe bodily harm and/or
• those acts involved violence in concert against persons or violence against dead, ill or wounded persons and/or
• those acts involved forcing others in concert to do, not to do or to tolerate something and/or
• those acts were expressions of a policy of systematic terror and/or unlawful action against the entire population or a specific group thereof and/or
• those acts involved a breach of a promise made; and/or
• death or grievous bodily harm to persons other than themselves was likely as a result of those acts
• those acts involved inhuman treatment,

consisting of the fact that at that time and there (on each occasion) they violated

- the provisions of ‘Common’ Article 3 of the Geneva Conventions of 12 August 1949 and/or

- customary international humanitarian law and/or

- ( in particular) the prohibition under customary international law on arbitrary deprivation of liberty

in connection with an (non-international) armed conflict within the territory of Ethiopia, treated persons who did not or no longer took part directly in the hostilities, namely civilians and/or personnel of armed forces who had laid down their weapons and/or those who were hors de combat due to sickness, wounds, detention or any other cause, namely

1. person 1]

2. [ person 2]

3. [ person 3]

4. [ person 4]

5. [ person 5]

6. [ person 6]

7. [ person 7]

8. [ person 8]

9. [ person 9]

10. [ person 10]

11. [ person 11]

12. [ person 12]

13. [ person 13]

14. [ person 14]

15. [ person 15]

16. [ person 16]

17. [ person 17]

18. [ person 18]

19. [ person 19]

20. [ person 20]

21. [ person 21]

22. [ person 22]

23. [ person 23]

24. [ person 24]

25. [ person 25]

26. [ person 26]

27. [ person 27]

28. [ person 28]

29. [ person 29]

30. [ person 30]

31. [ person 31]

32. [ person 32]

33. [ person 33]

34. [ person 34]

35. [ person 35]

36. [ person 36]

37. [ person 37]

38. [ person 38]

39. [ person 39]

40. [ person 40]

41. [ person 41]

42. [ person 42]

43. [ person 43]

44. [ person 44]

45. [ person 45]

46. [ person 46]

47. [ person 47]

48. [ person 48]

49. [ person 49]

50. [ person 50]

51. [ person 51]

52. [ person 52]

53. [ person 53]

54. [ person 54]

55. [ person 55]

56. [ person 56]

57. [ person 57]

58. [ person 58]

59. [ person 59]

60. [ person 60]

61. [ person 61]

62. [ person 62]

63. [ person 63]

64. [ person 64]

65. [ person 65]

66. [ person 66]

67. [ person 67]

68. [ person 68]

69. [ person 69]

70. [ person 70]

71. [ person 71]

72. [ person 72]

73. [ person 73]

74. [ person 74]

75. [ person 75]

76. [ person 76]

77. [ person 77]

78. [ person 78]

79. [ person 79]

80. [ person 80]

81. [ person 81]

82. [ person 82]

83. [ person 83]

84. [ person 84]

85. [ person 85]

86. [ person 86]

87. [ person 87]

88. [ person 88]

89. [ person 89]

90. [ person 90]

91. [ person 91]

92. [ person 92]

93. [ person 93]

94. [ person 94]

95. [ person 95]

96. [ person 96]

97. [ person 97]

98. [ person 98]

99. [ person 99]

100. [person 100]

101. [person 101]

102. [person 102]

103. [person 103]

104. [person 104]

105. [person 105]

106. [person 106]

107. [person 107]

108. [person 108]

109. [person 109]

110. [person 110]

111. [person 111]

112. [person 112]

113. [person 113]

114. [person 114]

115. [person 115]

116. [person 116]

117. [person 117]

118. [person 118]

119. [person 119]

120. [person 120]

121. [person 121]

122. [person 122]

123. [person 123]

124. [person 124]

125. [person 125]

126. [person 126]

127. [person 127]

128. [person 128]

129. [person 129]

130. [person 130]

131. [person 131]

132. [person 132]

133. [person 133]

134. [person 134]

135. [person 135]

136. [person 136]

137. [person 137]

138. [person 138]

139. [person 139]

140. [person 140]

141. [person 141]

142. [person 142]

143. [person 143]

144. [person 144]

145. [person 145]

146. [person 146]

147. [person 147]

148. [person 148]

149. [person 149]

150. [person 150]

151. [person 151]

152. [person 152]

153. [person 153]

154. [person 154]

155. [person 155]

156. [person 156]

157. [person 157]

158. [person 158]

159. [person 159]

160. [person 160]

161. [person 161]

162. [person 162]

163. [person 163]

164. [person 164]

165. [person 165]

166. [person 166]

167. [person 167]

168. [person 168]

169. [person 169]

170. [person 170]

171. [person 171]

172. [person 172]

173. [person 173]

174. [person 174]

175. [person 175]

176. [person 176]

177. [person 177]

178. [person 178]

179. [person 179]

180. [person 180]

181. [person 181]

182. [person 182]

183. [person 183]

184. [person 184]

185. [person 185]

186. [person 186]

187. [person 187]

188. [person 188]

189. [person 189]

190. [person 190]

191. [person 191]

192. [person 192]

193. [person 193]

194. [person 194]

195. [person 195]

196. [person 196]

197. [person 197]

198. [person 198]

199. [person 199]

200. [person 200]

201. [person 201]

202. [person 202]

203. [person 203]

204. [person 204]

205. [person 205]

206. [person 206]

207. [person 207]

208. [person 208]

209. [person 209]

210. [person 210]

211. [person 211]

212. [person 212]

213. [person 213]

214. [person 214]

215. [person 215]

216. [person 216]

217. [person 217]

218. [person 218]

219. [person 219]

220. [person 220]

221. [person 221]

222. [person 222]

223. [person 223]

224. [person 224]

225. [person 225]

226. [person 226]

227. [person 227]

228. [person 228]

229. [person 229]

230. [person 230]

231. [person 231]

232. [person 232]

233. [person 233]

234. [person 234]

235. [person 235]

236. [person 236]

237. [person 237]

238. [person 238]

239. [person 239]

240. [person 240]

241. [person 241]

242. [person 242]

243. [person 243]

244. [person 244]

245. [person 245]

246. [person 246]

247. [person 247]

248. [person 248]

249. [person 249]

250. [person 250]

251. [person 251]

252. [person 252]

253. [person 253]

254. [person 254]

255. [person 255]

256. [person 256]

257. [person 257]

258. [person 258]

259. [person 259]

260. [person 260]

261. [person 261]

262. [person 262]

263. [person 263]

264. [person 264]

265. [person 265]

266. [person 266]

267. [person 267]

268. [person 268]

269. [person 269]

270. [person 270]

271. [person 271]

272. [person 272]

273. [person 273]

274. [person 274]

275. [person 275]

276. [person 276]

277. [person 277]

278. [person 278]

279. [person 279]

280. [person 280]

281. [person 281]

282. [person 282]

283. [person 283]

284. [person 284]

285. [person 285]

286. [person 286]

287. [person 287]

288. [person 288]

289. [person 289]

290. [person 290]

291. [person 291]

292. [person 292]

293. [person 293]

294. [person 294]

295. [person 295]

296. [person 296]

297. [person 297]

298. [person 298]

299. [person 299]

300. [person 300]

301. [person 301]

302. [person 302]

303. [person 303]

304. [person 304]

305. [person 305]

306. [person 306]

307. [person 307]

308. [person 308]

309. [person 309]

310. [person 310]

311. [person 311]

312. [person 312]

313. [person 313]

314. [person 325]

315. [person 319]

316. [person 320]

317. [person 314]

318. [person 315]

319. [person 316]

320. [person 317]

321. [person 318]

and/or one or more other person(s)

- cruelly and/or inhumanly, and/or

- ( each time) assaulted their personal dignity (and/or) (in particular) treated the aforementioned persons in a humiliating and/or degrading manner and/or

- pronounced judgments against them and/or enforced these without prior trial by a lawfully constituted tribunal offering all the legal guarantees recognised as indispensable by civilised nations and/or

- arbitrarily deprived them of their liberty

which cruel and/or inhuman treatment and/or which attacks upon personal dignity and/or humiliating and/or degrading treatment and/or which pronouncement and/or enforcement of sentences and/or which arbitrary deprivation of liberty as aforementioned entailed the accused and/or one or more co-perpetrator(s)

• pronouncing (prison) sentences and/or other freedom restricting measures (at exposure meetings) against the aforementioned person(s) and/or enforced them and/or had them enforced without first being tried by an (independent) court and/or without having been given a fair trial and/or (in particular) without having been tried by an independent and impartial body and/or without having been promptly informed of the accusations against them and/or without having had the necessary rights and means of defence at their disposal and/or in violation of the prohibition of collective punishment and/or in violation of the principle of legality and/without the presumption of innocence and/or without being able to exercise the right to be present at their own trial and/or without being able to exercise the right not to participate in their own conviction and/or without being able to exercise the right to be advised of the legal and other remedies available and of the time limits within which they must be exercised
• searched or ordered the search of the home of the abovementioned person(s) and/or arrested them and/or took and/or had them takento a police station and/or prison and/or
• kept the aforementioned person(s) imprisoned with too many people in spaces that are too small and/or in spaces in which no or hardly any daylight penetrated and/or without them being able to make sufficient use of sanitary facilities and/or while the food and/or drinking water which they received was bad and/or filthy and/or insufficient and/or they received no or insufficient medical care

at and/or for the commission of which (aforementioned) offences he, the accused, at one or more time(s) in the period from 1 February 1978 up to and including 24 August 1978, in any case in 1978 in Debre Marcos and/or Metekel, in Gojam province, or at least at localities in Ethiopia,

has intentionally been helpful and/or has provided opportunity and/or means and/or information,

by then and there intentionally

- having led or at least having been present at a so-called (exposure) meeting several times, or at least once, and/or

- having given orders for the arrest of the aforementioned person(s) and/or

- making the aforementioned person(s) available to head(s) of prison(s) in Debre Marcos and/or Metekel and/or (members of) kadres and/or kebeles and/or police officers and/or guards and/or interrogators and/or one or more others and/or

- having maintained inhuman conditions in the prison(s) in Debre Marcos and/or Metekel

(Art. 8 WOS (old) in conjunction with 48 CC)

2.

Torture

2.1

co-perpetration

he, at one or more point(s) in time in the period from 1 February 1978 up to and including 31 July 1978, in any case in 1978, in Debre Marcos and/or Metekel, in Gojam province, or at least at localities in Ethiopia,

jointly and in conjunction with another person or persons,

(on each occasion) violated the laws and customs of war, while

• those acts resulted in death and/or severe bodily harm and/or
• those acts involved violence in concert against persons or violence against dead, ill or wounded persons and/or
• those acts involved forcing others in concert to do, not to do or to tolerate something and/or
• those acts were expressions of a policy of systematic terror and/or unlawful action against the entire population or a specific group thereof and/or
• those acts involved a breach of a promise made; and/or
• death or grievous bodily harm to persons other than the accused was likely as a result of those acts;
• those acts involved inhuman treatment,

consisting of the fact that he, the accused, there and then (on each occasion) violated

- the provisions of ‘Common’ Article 3 of the Geneva Conventions of 12 August 1949 and/or

- customary international humanitarian law

in connection with a (non-international) armed conflict within the territory of Ethiopia, tortured persons who did not (or no longer) take part in the hostilities directly, namely civilians and/or personnel of armed forces who had laid down their weapons and/or those who were placed hors de combat by sickness, wounds, detention, or any other cause, namely

1. person 326]

2. [ person 321]

3. [ person 322]

4. [ person 313]

5. [ person 323]

6. [ person 324]

7. [ person 319]

and/or one or more other person(s)

- ( several times)

Which torture consisted of the fact that he, the accused, and/or one or more of his co-perpetrator(s) with a view to obtaining information and/or a confession and/or to punish and/or intimidate the aforementioned person(s) and/or to force the aforementioned person(s) and/or one or more third parties to do or not to do something and/or for any reason based on discrimination

- several times, or at least once (on each occasion) kicked and/or punched the aforementioned person(s) against the private parts and/or the (bare) feet and/or head and/or the body and/or

- several times, or at least once (on each occasion) tied the feet and hands of the aforementioned person(s) to each other and/or then lifted them up and/or then hit the face and/or body of the aforementioned person(s) with sticks, or at least with a (hard) object against the face and/or the body of that/these aforementioned person(s) and/or

- several times, or at least once (on each occasion) tied the aforementioned person(s) by the arms and/or hands and/or lifted them up and/or then hit them with sticks, or at least with a (hard) object against the (bare) feet and/or against the body of that/these aforementioned person(s), while one or more of the aforementioned person(s) had a ball or another object in his/her mouth while the aforementioned person(s) were in captivity as a result of which the aforementioned person(s) suffered severe pain or severe suffering and/or (severe) physical injury

(Art. 8 WOS (old) in conjunction with 47 CC)

and/or

2.2

intentional acceptance

that persons subordinate to the accused (such as (members of) kadres and/or kebeles and/or police officers and/or guards and/or interrogators) and/or one or more other(s)

jointly and in conjunction

at one or more point(s) in time in the period from 1 February 1978 up to and including 1 September 1978, in any case in 1978, in Debre Marcos and/or Metekel, in Gojam province, or at least at localities in Ethiopia,

(on each occasion) violated the laws and customs of war, while

• those acts resulted in death or severe bodily harm and/or
• those acts involved violence in concert against persons or violence against dead, ill or wounded persons and/or
• those acts involved forcing others in concert to do, not to do or to tolerate something and/or
• those acts were expressions of a policy of systematic terror and/or unlawful action against the entire population or a specific group thereof and/or
• those acts involved a breach of a promise made; and/or
• death or grievous bodily harm to persons other than themselves was likely as a result of those acts
• those acts involved inhuman treatment,

consisting of the fact that at that time and there (on each occasion) they violated

- the provisions of ‘Common’ Article 3 of the Geneva Conventions of 12 August 1949 and/or

- customary international humanitarian law

in connection with an (non-international) armed conflict within the territory of Ethiopia, tortured persons who did not or no longer took part directly in the hostilities, namely civilians and/or personnel of armed forces who had laid down their weapons and/or those who were hors de combat due to sickness, wounds, detention or any other cause, namely

1. person 326]

2. [ person 321]

3. [ person 322]

4. [ person 313]

5. [ person 323]

6. [ person 324]

7. [ person 319]

and/or one or more other person(s)

- ( several times)

Which torture consisted of the fact that he, the accused, and/or one or more of his co-perpetrator(s) with a view to obtaining information and/or a confession and/or to punish and/or intimidate the aforementioned person(s) and/or to force the aforementioned person(s) and/or one or more third parties to do or not to do something and/or for any reason based on discrimination

- several times, or at least once (on each occasion) kicked and/or punched the aforementioned person(s) against the private parts and/or the (bare) feet and/or head and/or the body and/or

- several times, or at least once (on each occasion) tied the feet and hands of the aforementioned person(s) to each other and/or then lifted them up and/or then hit the face and/or body of the aforementioned person(s) with sticks, or at least with a (hard) object against the face and/or the body of that/these aforementioned person(s) and/or

- several times, or at least once (on each occasion) tied the aforementioned person(s) by the arms and/or hands and/or lifted them up and/or then hit them with sticks, or at least with a (hard) object against the (bare) feet and/or against the body of that/these aforementioned person(s), while one or more of the aforementioned person(s) had a ball or another object in his/her mouth while the aforementioned person(s) were in captivity as a result of which the aforementioned person(s) suffered severe pain or severe suffering and/or (severe) physical injury

which the accused, being a representative of the Ethiopian government (Derg) in Gojam province, at one or more point(s) in time in the period from 1 February 1978 up to and including 1 September 1978, in any case in 1978, in Debre Marcos and/or Metekel, in Gojam province, or at least at localities in Ethiopia (each time) intentionally accepted and/or did not take and/or took insufficient measures to prevent and/or to stop and/or to punish the aforementioned crimes

(Art. 8 WOS in conjunction 9 WOS (old))

and/or

2.3

aiding and abetting

that (members of) kadres and/or kebeles and/or police officers and/or guards and/or interrogators and/or one or more other(s) jointly and in conjunction

at one or more point(s) in time in the period from 1 February 1978 up to and including 1 September 1978, in any case in 1978, in Debre Marcos and/or Metekel, in Gojam province, or at least at localities in Ethiopia,

(on each occasion) violated the laws and customs of war, while

• those acts resulted in death and/or severe bodily harm and/or
• those acts involved violence in concert against persons or violence against dead, ill or wounded persons and/or
• those acts involved forcing others in concert to do, not to do or to tolerate something and/or
• those acts were expressions of a policy of systematic terror and/or unlawful action against the entire population or a specific group thereof and/or
• those acts involved a breach of a promise made; and/or
• death or grievous bodily harm to persons other than themselves was likely as a result of those acts
• those acts involved inhuman treatment,

consisting of the fact that at that time and there (on each occasion) they violated

- the provisions of ‘Common’ Article 3 of the Geneva Conventions of 12 August 1949 and/or

- customary international humanitarian law and/or

in connection with an (non-international) armed conflict within the territory of Ethiopia, tortured persons who did not or no longer took part directly in the hostilities, namely civilians and/or personnel of armed forces who had laid down their weapons and/or those who were hors de combat due to sickness, wounds, detention or any other cause,

namely

1. person 326]

2. [ person 321]

3. [ person 322]

4. [ person 313]

5. [ person 323]

6. [ person 324]

7. [ person 319]

and/or one or more other person(s)

- ( several times)

which torture consisted of the fact that (members of) kadres and/or kebeles and/or police officers and/or guards and/or interrogators and/or one or more other(s) with a view to obtaining information and/or a confession and/or to punish and/or intimidate the aforementioned person(s) and/or to force the aforementioned person(s) and/or one or more third parties to do or not to do something and/or for any reason based on discrimination

- several times, or at least once (on each occasion) kicked and/or punched the aforementioned person(s) against the private parts and/or the (bare) feet and/or head and/or the body and/or

- several times, or at least once (on each occasion) tied the feet and hands of the aforementioned person(s) to each other and/or then lifted them up and/or then hit the face and/or body of the aforementioned person(s) with sticks, or at least with a (hard) object against the face and/or the body of that/these aforementioned person(s) and/or

- several times, or at least once (on each occasion) tied the aforementioned person(s) by the arms and/or hands and/or lifted them up and/or then hit them with sticks, or at least with a (hard) object against the (bare) feet and/or against the body of that/these aforementioned person(s), while one or more of the aforementioned person(s) had a ball or another object in his/her mouth while the aforementioned person(s) were in captivity as a result of which the aforementioned person(s) suffered severe pain or severe suffering and/or (severe) physical injury

during and/or for the execution of these (aforementioned) torture he, the accused, on one or more point(s) in time, in the periode from 1 February 1978 up to and including 1 September 1978, in any case in 1978, in Debra Marcos and/or Metekel, in Gojam province, or at least at localities in Ethiopia

(on each occasion) intentionally assisted and/or provided opportunity and/or means and/or information,

by then and there intentionally

- had interrogators from Addis Ababa come over to the police camp and/or prison of Debre Marcos and/or

- make the aforementioned person(s) available to (members of) kadres and/or kebeles and/or police officers and/or guards and/or interrogators and one or more others

(Art. 8 WOS (old) in conjunction with 48 CC)

3.

Killing on 14 August 1978 up to and including 17 August 1978

3.1

co-perpetration

he, at one or more point(s) in time in the period from 14 August 1978 up to and including 17 August 1978, in any case in 1978, in Debre Marcos and/or Metekel, in Gojam province, or at least in Ethiopia,

jointly and in conjunction with another person or persons,

(on each occasion) violated the laws and customs of war, while

• those acts resulted in death and/or severe bodily harm and/or
• those acts involved violence in concert against persons or violence against dead, ill or wounded persons and/or
• those acts involved forcing others in concert to do, not to do or to tolerate something and/or
• those acts were expressions of a policy of systematic terror and/or unlawful action against the entire population or a specific group thereof and/or
• those acts involved a breach of a promise made and/or a breach of an agreement entered into with the other party as such and/or
• death or grievous bodily harm to persons other than the accused was likely as a result of those acts;

consisting of the fact that he, the accused, there and then (on each occasion) violated

- the provisions of ‘Common’ Article 3 of the Geneva Conventions of 12 August 1949 and/or

- customary international humanitarian law

in connection with a (non-international) armed conflict within the territory of Ethiopia, committed against persons who did not (or no longer) take part in the hostilities directly, namely civilians and/or personnel of armed forces who had laid down their weapons and/or those who were placed hors de combat by sickness, wounds, detention, or any other cause, namely

1. person 4]

2. [ person 5]

3. [ person 6]

4. [ person 7]

5. [ person 8]

6. [ person 9]

7. [ person 10]

8. [ person 11]

9. [ person 12]

10. [ person 13]

11. [ person 14]

12. [ person 15]

13. [ person 16]

14. [ person 17]

15. [ person 18]

16. [ person 19]

17. [ person 20]

18. [ person 21]

19. [ person 22]

20. [ person 23]

21. [ person 24]

22. [ person 25]

23. [ person 26]

24. [ person 27]

25. [ person 28]

26. [ person 29]

27. [ person 30]

28. [ person 31]

29. [ person 32]

30. [ person 33]

31. [ person 34]

32. [ person 35]

33. [ person 36]

34. [ person 37]

35. [ person 38]

36. [ person 39]

37. [ person 40]

38. [ person 41]

39. [ person 42]

40. [ person 43]

41. [ person 44]

42. [ person 45]

43. [ person 46]

44. [ person 47]

45. [ person 48]

46. [ person 49]

47. [ person 50]

48. [ person 51]

49. [ person 52]

50. [ person 53]

51. [ person 54]

52. [ person 55]

53. [ person 56]

54. [ person 57]

55. [ person 58]

56. [ person 59]

57. [ person 60]

58. [ person 61]

59. [ person 62]

60. [ person 63]

61. [ person 64]

62. [ person 65]

63. [ person 66]

64. [ person 67]

65. [ person 68]

66. [ person 69]

67. [ person 70]

68. [ person 71]

69. [ person 72]

70. [ person 73]

71. [ person 74]

72. [ person 75]

73. [ person 76]

74. [ person 77]

75. [ person 78]

and/or one or more other person(s)

- ( several times) an attempt on a person’s life and/or physical violence (and/or) (in particular) killed the aforementioned persons

which attempt(s) on a person’s life and/or physical violence, and/or killing consisted in that he, the accused, and/or one or more of his co-perpetrator(s) - shot (a) bullet(s) into the body and/or head of the aforementioned person(s) with (a) firearm(s) several times or at least once, and/or strangled the aforementioned person(s) and/or suffocated aforementioned person(s) with a rope(s) or at least an object and/or buried aforementioned person(s) or applied/exercised one or more other forms of violence and/or other acts of violence to the aforementioned person(s)

as a result of which the aforementioned person(s) died (Art. 8 WOS (old) in conjunction with 47 CC.)

and/or

3.2

instigation

[person 327] and/or [person 328] and/or guards and/or one or more other person(s), at one or more point(s) in time in the period from 14 August 1978 up to and including 17 August 1978, in any case in 1978, in Debre Marcos and/or Metekel, in Gojam province, or at least in Ethiopia,

jointly and in conjunction,

(on each occasion) violated the laws and customs of war, while

• those acts resulted in death and/or severe bodily harm and/or
• those acts involved violence in concert against persons or violence against dead, ill or wounded persons and/or
• those acts involved forcing others in concert to do, not to do or to tolerate something and/or
• those acts were expressions of a policy of systematic terror and/or unlawful action against the entire population or a specific group thereof and/or
• those acts involved a breach of a promise made and/or a breach of an agreement entered into with the other party as such and/or
• death or grievous bodily harm to persons other than themselves was likely as a result of those acts;

consisting of the fact that they, there and then (on each occasion) violated

- the provisions of ‘Common’ Article 3 of the Geneva Conventions of 12 August 1949 and/or

- customary international humanitarian law

in connection with a (non-international) armed conflict within the territory of Ethiopia, against persons who did not (or no longer) take part in the hostilities directly, namely civilians and/or personnel of armed forces who had laid down their weapons and/or those who were placed hors de combat by sickness, wounds, detention, or any other cause, namely

1. person 4]

2. [ person 5]

3. [ person 6]

4. [ person 7]

5. [ person 8]

6. [ person 9]

7. [ person 10]

8. [ person 11]

9. [ person 12]

10. [ person 13]

11. [ person 14]

12. [ person 15]

13. [ person 16]

14. [ person 17]

15. [ person 18]

16. [ person 19]

17. [ person 20]

18. [ person 21]

19. [ person 22]

20. [ person 23]

21. [ person 24]

22. [ person 25]

23. [ person 26]

24. [ person 27]

25. [ person 28]

26. [ person 29]

27. [ person 30]

28. [ person 31]

29. [ person 32]

30. [ person 33]

31. [ person 34]

32. [ person 35]

33. [ person 36]

34. [ person 37]

35. [ person 38]

36. [ person 39]

37. [ person 40]

38. [ person 41]

39. [ person 42]

40. [ person 43]

41. [ person 44]

42. [ person 45]

43. [ person 46]

44. [ person 47]

45. [ person 48]

46. [ person 49]

47. [ person 50]

48. [ person 51]

49. [ person 52]

50. [ person 53]

51. [ person 54]

52. [ person 55]

53. [ person 56]

54. [ person 57]

55. [ person 58]

56. [ person 59]

57. [ person 60]

58. [ person 61]

59. [ person 62]

60. [ person 63]

61. [ person 64]

62. [ person 65]

63. [ person 66]

64. [ person 67]

65. [ person 68]

66. [ person 69]

67. [ person 70]

68. [ person 71]

69. [ person 72]

70. [ person 73]

71. [ person 74]

72. [ person 75]

73. [ person 76]

74. [ person 77]

75. [ person 78]

and/or one or more other person(s)

- ( several times) committed an attempt on a person’s life and/or physical violence (and/or) (in particular) killed the aforementioned persons

which attempt(s) on a person’s life and/or physical violence, and/or killing consisted in that they,

- shot (a) bullet(s) into the body and/or head of the aforementioned person(s) with (a) firearm(s) several times or at least once, and/or strangled the aforementioned person(s) and/or suffocated aforementioned person(s) with a rope(s) or at least an object and/or buried aforementioned person(s) or applied/exercised one or more other forms of violence and/or other acts of violence to the aforementioned person(s)

as a result of which the aforementioned person(s) died

which crimes he, the accused,

jointly and in conjunction with another person or persons

at one or more point(s) in time in or around the period from 14 August 1978 up to and including 17 August 1978, in any case in 1978 in Debre Marcos and/or Metekel, in Gojam province, or at least in Ethiopia,

by promises of gifts, abuse of authority, threat of violence, deception and/or by the provision of opportunity, means and/or information, intentionally instigated, since he (using his position as a representative of the Ethiopian government (Derg) in Gojam province

there and then

-in writing and/or by telephone ordered the killing (revolutionary measures) of the aforementioned person(s)

(Art. 8 WOS (old) in conjunction with 47 CC)

4.

Deprivation of liberty and inhuman treatment from 24 August 1978 up to and including 31 December 1981

4.1

co-perpetration

he, at one or more point(s) in time in the period from 1 August 1978 up to and including 31 December 1981, in Debre Marcos and/or Metekel, in Gojam province, or at least at localities in Ethiopia,

jointly and in conjunction with another person or persons,

(on each occasion) violated the laws and customs of war, while

• those acts resulted in severe bodily harm and/or
• those acts involved violence in concert against persons or violence against dead, ill or wounded persons and/or
• those acts involved forcing others in concert to do, not to do or to tolerate something and/or
• those acts were expressions of a policy of systematic terror and/or unlawful action against the entire population or a specific group thereof and/or
• those acts involved a breach of a promise made and/or
• death or grievous bodily harm to persons other than the accused was likely as a result of those acts;
• those acts involved inhuman treatment,

consisting of the fact that he, the accused, there and then (on each occasion) violated

- the provisions of ‘Common’ Article 3 of the Geneva Conventions of 12 August 1949 and/or

- customary international humanitarian law

- ( in particular) the prohibition under customary international law on arbitrary deprivation of liberty

in connection with a (non-international) armed conflict within the territory of Ethiopia, treated persons who did not (or no longer) take part in the hostilities directly, namely civilians and/or personnel of armed forces who had laid down their weapons and/or those who were placed hors de combat by sickness, wounds, detention, or any other cause, namely

[person 82]

[person 83]

[person 84]

[person 85]

[person 86]

[person 87]

[person 88]

[person 89]

[person 90]

10. [ [person 91]

10. [ [person 92]

10. [ [person 93]

10. [ [person 94]

10. [ [person 95]

10. [ [person 96]

10. [ [person 97]

10. [ [person 98]

10. [ [person 99]

10. [ [person 100]

10. [ [person 101]

10. [ [person 102]

10. [ [person 103]

10. [ [person 104]

10. [ [person 105]

10. [ [person 106]

10. [ [person 107]

10. [ [person 108]

10. [ [person 109]

10. [ [person 110]

10. [ [person 111]

10. [ [person 112]

10. [ [person 113]

10. [ [person 114]

10. [ [person 115]

10. [ [person 116]

10. [ [person 117]

10. [ [person 118]

10. [ [person 119]

10. [ [person 120]

10. [ [person 121]

10. [ [person 122]

10. [ [person 123]

10. [ [person 124]

10. [ [person 125]

10. [ [person 126]

10. [ [person 127]

10. [ [person 128]

10. [ [person 129]

10. [ [person 130]

10. [ [person 131]

10. [ [person 132]

10. [ [person 133]

10. [ [person 134]

10. [ [person 135]

10. [ [person 136]

10. [ [person 137]

10. [ [person 138]

10. [ [person 139]

10. [ [person 140]

10. [ [person 141]

10. [ [person 142]

10. [ [person 143]

10. [ [person 144]

10. [ [person 145]

10. [ [person 146]

10. [ [person 147]

10. [ [person 148]

10. [ [person 149]

10. [ [person 150]

10. [ [person 151]

10. [ [person 152]

10. [ [person 153]

10. [ [person 154]

10. [ [person 155]

10. [ [person 156]

10. [ [person 157]

10. [ [person 158]

10. [ [person 159]

10. [ [person 160]

10. [ [person 161]

10. [ [person 162]

10. [ [person 163]

10. [ [person 164]

10. [ [person 165]

10. [ [person 166]

10. [ [person 167]

10. [ [person 168]

10. [ [person 169]

10. [ [person 170]

10. [ [person 171]

10. [ [person 172]

10. [ [person 173]

10. [ [person 174]

10. [ [person 175]

10. [ [person 176]

10. [ [person 177]

10. [ [person 178]

10. [ [person 179]

10. [ [person 180]

10. [ [person 181]

10. [ [person 182]

10. [ [person 183]

10. [ [person 184]

10. [ [person 185]

10. [ [person 186]

10. [ [person 187]

10. [ [person 188]

10. [ [person 189]

10. [ [person 190]

10. [ [person 191]

10. [ [person 192]

10. [ [person 193]

10. [ [person 194]

10. [ [person 195]

10. [ [person 196]

10. [ [person 197]

10. [ [person 198]

10. [ [person 199]

10. [ [person 200]

10. [ [person 201]

10. [ [person 202]

10. [ [person 203]

10. [ [person 204]

10. [ [person 205]

10. [ [person 206]

10. [ [person 207]

10. [ [person 208]

10. [ [person 209]

10. [ [person 210]

10. [ [person 211]

10. [ [person 212]

10. [ [person 213]

10. [ [person 214]

10. [ [person 215]

10. [ [person 216]

10. [ [person 217]

10. [ [person 218]

10. [ [person 219]

10. [ [person 220]

10. [ [person 221]

10. [ [person 222]

10. [ [person 223]

10. [ [person 224]

10. [ [person 225]

10. [ [person 226]

10. [ [person 227]

10. [ [person 228]

10. [ [person 229]

10. [ [person 230]

10. [ [person 231]

10. [ [person 232]

10. [ [person 233]

10. [ [person 234]

10. [ [person 235]

10. [ [person 236]

10. [ [person 237]

10. [ [person 238]

10. [ [person 239]

10. [ [person 240]

10. [ [person 241]

10. [ [person 242]

10. [ [person 243]

10. [ [person 244]

10. [ [person 245]

10. [ [person 246]

10. [ [person 247]

10. [ [person 248]

10. [ [person 249]

10. [ [person 250]

10. [ [person 251]

10. [ [person 252]

10. [ [person 253]

10. [ [person 254]

10. [ [person 255]

10. [ [person 256]

10. [ [person 257]

10. [ [person 258]

10. [ [person 259]

10. [ [person 260]

10. [ [person 261]

10. [ [person 262]

10. [ [person 263]

10. [ [person 264]

10. [ [person 265]

10. [ [person 266]

10. [ [person 267]

10. [ [person 268]

10. [ [person 269]

10. [ [person 270]

10. [ [person 271]

10. [ [person 272]

10. [ [person 273]

10. [ [person 274]

10. [ [person 275]

10. [ [person 276]

10. [ [person 277]

10. [ [person 278]

10. [ [person 279]

10. [ [person 280]

10. [ [person 281]

10. [ [person 282]

10. [ [person 283]

10. [ [person 284]

10. [ [person 285]

10. [ [person 286]

10. [ [person 287]

10. [ [person 288]

10. [ [person 289]

10. [ [person 290]

10. [ [person 291]

10. [ [person 292]

10. [ [person 293]

10. [ [person 294]

10. [ [person 295]

10. [ [person 296]

10. [ [person 297]

10. [ [person 298]

10. [ [person 299]

10. [ [person 300]

10. [ [person 301]

10. [ [person 302]

10. [ [person 303]

10. [ [person 304]

10. [ [person 305]

10. [ [person 306]

10. [ [person 307]

10. [ [person 308]

10. [ [person 309]

10. [ [person 310]

10. [ [person 311]

10. [ [person 312]

10. [ [person 313]

10. [ (...)

10. [ (...)

10. [ (...)

10. [ [person 314]

10. [ [person 315]

10. [ [person 316]

10. [ [person 317]

10. [ [person 318]

and/or one or more other person(s)

- cruelly and/or inhumanly, and/or

- ( each time) assaulted their personal dignity (and/or) (in particular) treated the aforementioned persons in a humiliating and/or degrading manner and/or

- pronounced judgments against them and/or enforced these without prior trial by a lawfully constituted tribunal offering all the legal guarantees recognised as indispensable by civilised nations and/or

- arbitrarily deprived them of their liberty,

which cruel and/or inhuman treatment and/or which attacks upon personal dignity and/or humiliating and/or degrading treatment and/or which pronouncement and/or enforcement of sentences and/or which arbitrary deprivation of liberty as aforementioned entailed the accused and/or one or more co-perpetrator(s)

• pronouncing (prison) sentences and/or other measures (hard labour) against the aforementioned person(s)on or around 1 August 1978 up to and including 31 August 1978 and/or enforced them and/or had them enforced without first being tried by an (independent) court and/or without having been given a fair trial and/or (in particular) without having been tried by an independent and impartial body and/or without having been promptly informed of the accusations against them and/or without having had the necessary rights and means of defence at their disposal and/or in violation of the prohibition of collective punishment and/or in violation of the principle of legality and/without the presumption of innocence and/or without being able to exercise the right to be present at their own trial and/or without being able to exercise the right not to participate in their own conviction and/or without being able to exercise the right to be advised of the legal and other remedies available and of the time limits within which they must be exercised and/or
• kept the aforementioned person(s) imprisoned with too many people in spaces that are too small and/or in spaces in which no or hardly any daylight penetrated and/or without them being able to make sufficient use of sanitary facilities and/or while the food and/or drinking water which they received was bad and/or filthy and/or insufficient and/or they received no or insufficient medical care

(Art. 8 in conjunction with 9 WOS)

and/or

4.2

instigation

that head(s) of prison(s) in Debre Marcos and/or Metekel and/or and/or police officers and/or guards and/or one or more other person(s), at one or more point(s) in time in the period from 1 August 1978 up to and including 31 December 1981, in Debre Marcos and/or Metekel, in Gojam province, or at least in Ethiopia,

jointly and in conjunction,

(on each occasion) violated the laws and customs of war, while

• those acts resulted severe bodily harm and/or
• those acts involved violence in concert against persons or violence against dead, ill or wounded persons and/or
• those acts involved forcing others in concert to do, not to do or to tolerate something and/or
• those acts were expressions of a policy of systematic terror and/or unlawful action against the entire population or a specific group thereof and/or
• those acts involved a breach of a promise made and/or
• death or grievous bodily harm to persons other than themselves was likely as a result of those acts;
• those acts involved inhuman treatment,

consisting of the fact that they, there and then (on each occasion) violated

- the provisions of ‘Common’ Article 3 of the Geneva Conventions of 12 August 1949 and/or

- customary international humanitarian law and/or

- ( in particular) the prohibition under customary international law on arbitrary deprivation of liberty

in connection with a (non-international) armed conflict within the territory of Ethiopia, treated persons who did not (or no longer) take part in the hostilities directly, namely civilians and/or personnel of armed forces who had laid down their weapons and/or those who were placed hors de combat by sickness, wounds, detention, or any other cause, namely

[person 82]

[person 83]

[person 84]

[person 85]

[person 86]

[person 87]

[person 88]

[person 89]

[person 90]

[person 91]

[person 92]

[person 93]

[person 94]

[person 95]

[person 96]

[person 97]

[person 98]

[person 99]

[person 100]

[person 101]

[person 102]

[person 103]

[person 104]

[person 105]

[person 106]

[person 107]

[person 108]

[person 109]

[person 110]

[person 111]

[person 112]

[person 113]

[person 114]

[person 115]

[person 116]

[person 117]

[person 118]

[person 119]

[person 120]

[person 121]

[person 122]

[person 123]

[person 124]

[person 125]

[person 126]

[person 127]

[person 128]

[person 129]

[person 130]

[person 131]

[person 132]

[person 133]

[person 134]

[person 135]

[person 136]

[person 137]

[person 138]

[person 139]

[person 140]

[person 141]

[person 142]

[person 143]

[person 144]

[person 145]

[person 146]

[person 147]

[person 148]

[person 149]

[person 150]

[person 151]

[person 152]

[person 153]

[person 154]

[person 155]

[person 156]

[person 157]

[person 158]

[person 159]

[person 160]

[person 161]

[person 162]

[person 163]

[person 164]

[person 165]

[person 166]

[person 167]

[person 168]

[person 169]

[person 170]

[person 171]

[person 172]

[person 173]

[person 174]

[person 175]

[person 176]

[person 177]

[person 178]

[person 179]

[person 180]

[person 181]

[person 182]

[person 183]

[person 184]

[person 185]

[person 186]

[person 187]

[person 188]

[person 189]

[person 190]

[person 191]

[person 192]

[person 193]

[person 194]

[person 195]

[person 196]

[person 197]

[person 198]

[person 199]

[person 200]

[person 201]

[person 202]

[person 203]

[person 204]

[person 205]

[person 206]

[person 207]

[person 208]

[person 209]

[person 210]

[person 211]

[person 212]

[person 213]

[person 214]

[person 215]

[person 216]

[person 217]

[person 218]

[person 219]

[person 220]

[person 221]

[person 222]

[person 223]

[person 224]

[person 225]

[person 226]

[person 227]

[person 228]

[person 229]

[person 230]

[person 231]

[person 232]

[person 233]

[person 234]

[person 235]

[person 236]

[person 237]

[person 238]

[person 239]

[person 240]

[person 241]

[person 242]

[person 243]

[person 244]

[person 245]

[person 246]

[person 247]

[person 248]

[person 249]

[person 250]

[person 251]

[person 252]

[person 253]

[person 254]

[person 255]

[person 256]

[person 257]

[person 258]

[person 259]

[person 260]

[person 261]

[person 262]

[person 263]

[person 264]

[person 265]

[person 266]

[person 267]

[person 268]

[person 269]

[person 270]

[person 271]

[person 272]

[person 273]

[person 274]

[person 275]

[person 276]

[person 277]

[person 278]

[person 279]

[person 280]

[person 281]

[person 282]

[person 283]

[person 284]

[person 285]

[person 286]

[person 287]

[person 288]

[person 289]

[person 290]

[person 291]

[person 292]

[person 293]

[person 294]

[person 295]

[person 296]

[person 297]

[person 298]

[person 299]

[person 300]

[person 301]

[person 302]

[person 303]

[person 304]

[person 305]

[person 306]

[person 307]

[person 308]

[person 309]

[person 310]

[person 311]

[person 312]

[person 313]

(...)

(...)

(...)

[person 314]

[person 315]

[person 316]

[person 317]

[person 318]

and/or one or more other person(s)

- cruelly and/or inhumanly, and/or

- ( each time) assaulted their personal dignity (and/or) (in particular) treated the aforementioned persons in a humiliating and/or degrading manner and/or

- pronounced judgments against them and/or enforced these without prior trial by a lawfully constituted tribunal offering all the legal guarantees recognised as indispensable by civilised nations and/or

- arbitrarily deprived them of their liberty,

which cruel and/or unhuman treatment and/or which attacks upon personal dignity and/or humiliating and/or degrading treatment and/or which pronouncement and/or enforcement of sentences and/or which arbitrary deprivation of liberty as aforementioned entailed

• pronouncing (prison) sentences and/or other measures (hard labour) against the aforementioned person(s)on or around 1 August 1978 up to and including 31 August 1978 and/or enforced them and/or had them enforced without first being tried by an (independent) court and/or without having been given a fair trial and/or (in particular) without having been tried by an independent and impartial body and/or without having been promptly informed of the accusations against them and/or without having had the necessary rights and means of defence at their disposal and/or in violation of the prohibition of collective punishment and/or in violation of the principle of legality and/without the presumption of innocence and/or without being able to exercise the right to be present at their own trial and/or without being able to exercise the right not to participate in their own conviction and/or without being able to exercise the right to be advised of the legal and other remedies available and of the time limits within which they must be exercised and/or
• imprisoned the aforementioned person(s) with too many people in spaces that are too small and/or in spaces in which no or hardly any daylight penetrated and/or without them being able to make sufficient use of sanitary facilities and/or while the food and/or drinking water which they received was bad and/or filthy and/or insufficient and/or they received no or insufficient medical care

which crimes he, the accused,

jointly and in conjunction with another person or persons,

at one or more point(s) in time in or around the period from 1 August 1978 up to and including 31 December 1978, in Debre Marcos and/or Metekel, in Gojam province, or at least in Ethiopia,

by means of gifts, promises, abuse of authority, threat of violence, deception and/or by the provision of opportunity, means and/or information, intentionally instigated, since he (using his position as a representative of the Ethiopian government (Derg) in Gojam province

there and then

-ordered to impose (prison) sentences and/or other measures (hard labour) on the aforementioned person(s) and/or to execute these and/or

- maintained inhuman conditions in the prison(s) in Debre Marcos and/or Metekel

(Art. 8 WOS (old) in conjunction with 47 CC)

and/or

4.3

intentional acceptance

that persons subordinate to the accused (such as head(s) of prison(s) in Debre Marcos and/or Metekel and/or police officers and/or guards) and/or one or more other(s), jointly and in conjunction

at one or more point(s) in time in the period from 24 August 1978 up to and including 31 December 1981, in Debre Marcos and/or Metekel, in Gojam province, or at least in Ethiopia,

(on each occasion) violated the laws and customs of war, while

• those acts resulted in severe bodily harm and/or
• those acts involved violence in concert against persons or violence against dead, ill or wounded persons and/or
• those acts involved forcing others in concert to do, not to do or to tolerate something and/or
• those acts were expressions of a policy of systematic terror and/or unlawful action against the entire population or a specific group thereof and/or
• those acts involved a breach of a promise made; and/or
• death or grievous bodily harm to persons other than themselves was likely as a result of those acts
• those acts involved inhuman treatment,

consisting of the fact that at that time and there (on each occasion) they violated

- the provisions of ‘Common’ Article 3 of the Geneva Conventions of 12 August 1949 and/or

- customary international humanitarian law and/or

- ( in particular) the prohibition under customary international law on arbitrary deprivation of liberty

in connection with an (non-international) armed conflict within the territory of Ethiopia, treated persons who did not or no longer took part directly in the hostilities, namely civilians and/or personnel of armed forces who had laid down their weapons and/or those who were hors de combat due to sickness, wounds, detention or any other cause, namely

[person 82]

[person 83]

[person 84]

[person 85]

[person 86]

[person 87]

[person 88]

[person 89]

[person 90]

[person 91]

[person 92]

[person 93]

[person 94]

[person 95]

[person 96]

[person 97]

[person 98]

[person 99]

[person 100]

[person 101]

[person 102]

[person 103]

[person 104]

[person 105]

[person 106]

[person 107]

[person 108]

[person 109]

[person 110]

[person 111]

[person 112]

[person 113]

[person 114]

[person 115]

[person 116]

[person 117]

[person 118]

[person 119]

[person 120]

[person 121]

[person 122]

[person 123]

[person 124]

[person 125]

[person 126]

[person 127]

[person 128]

[person 129]

[person 130]

[person 131]

[person 132]

[person 133]

[person 134]

[person 135]

[person 136]

[person 137]

[person 138]

[person 139]

[person 140]

[person 141]

[person 142]

[person 143]

[person 144]

[person 145]

[person 146]

[person 147]

[person 148]

[person 149]

[person 150]

[person 151]

[person 152]

[person 153]

[person 154]

[person 155]

[person 156]

[person 157]

[person 158]

[person 159]

[person 160]

[person 161]

[person 162]

[person 163]

[person 164]

[person 165]

[person 166]

[person 167]

[person 168]

[person 169]

[person 170]

[person 171]

[person 172]

[person 173]

[person 174]

[person 175]

[person 176]

[person 177]

[person 178]

[person 179]

[person 180]

[person 181]

[person 182]

[person 183]

[person 184]

[person 185]

[person 186]

[person 187]

[person 188]

[person 189]

[person 190]

[person 191]

[person 192]

[person 193]

[person 194]

[person 195]

[person 196]

[person 197]

[person 198]

[person 199]

[person 200]

[person 201]

[person 202]

[person 203]

[person 204]

[person 205]

[person 206]

[person 207]

[person 208]

[person 209]

[person 210]

[person 211]

[person 212]

[person 213]

[person 214]

[person 215]

[person 216]

[person 217]

[person 218]

[person 219]

[person 220]

[person 221]

[person 222]

[person 223]

[person 224]

[person 225]

[person 226]

[person 227]

[person 228]

[person 229]

[person 230]

[person 231]

[person 232]

[person 233]

[person 234]

[person 235]

[person 236]

[person 237]

[person 238]

[person 239]

[person 240]

[person 241]

[person 242]

[person 243]

[person 244]

[person 245]

[person 246]

[person 247]

[person 248]

[person 249]

[person 250]

[person 251]

[person 252]

[person 253]

[person 254]

[person 255]

[person 256]

[person 257]

[person 258]

[person 259]

[person 260]

[person 261]

[person 262]

[person 263]

[person 264]

[person 265]

[person 266]

[person 267]

[person 268]

[person 269]

[person 270]

[person 271]

[person 272]

[person 273]

[person 274]

[person 275]

[person 276]

[person 277]

[person 278]

[person 279]

[person 280]

[person 281]

[person 282]

[person 283]

[person 284]

[person 285]

[person 286]

[person 287]

[person 288]

[person 289]

[person 290]

[person 291]

[person 292]

[person 293]

[person 294]

[person 295]

[person 296]

[person 297]

[person 298]

[person 299]

[person 300]

[person 301]

[person 302]

[person 303]

[person 304]

[person 305]

[person 306]

[person 307]

[person 308]

[person 309]

[person 310]

[person 311]

[person 312]

[person 313]

(...)

(...)

(...)

[person 314]

[person 315]

[person 316]

[person 317]

[person 318]

and/or one or more other person(s)

- cruelly and/or inhumanly, and/or

- ( each time) assaulted their personal dignity (and/or) (in particular) treated the aforementioned persons in a humiliating and/or degrading manner and/or

- pronounced judgments against them and/or enforced these without prior trial by a lawfully constituted tribunal offering all the legal guarantees recognised as indispensable by civilised nations and/or

- arbitrarily deprived them of their liberty,

which cruel and/or inhuman treatment and/or which attacks upon personal dignity and/or humiliating and/or degrading treatment and/or which pronouncement and/or enforcement of sentences and/or which arbitrary deprivation of liberty as aforementioned entailed the subordinates

• pronouncing (prison) sentences and/or other measures (hard labour) against the aforementioned person(s)on or around 24 August 1978 and/or had them enforced without first being tried by an (independent) court and/or without having been given a fair trial and/or (in particular) without having been tried by an independent and impartial body and/or without having been promptly informed of the accusations against them and/or without having had the necessary rights and means of defence at their disposal and/or in violation of the prohibition of collective punishment and/or in violation of the principle of legality and/without the presumption of innocence and/or without being able to exercise the right to be present at their own trial and/or without being able to exercise the right not to participate in their own conviction and/or without being able to exercise the right to be advised of the legal and other remedies available and of the time limits within which they must be exercised and/or
• imprisoned the aforementioned person(s) with too many people in spaces that are too small and/or in spaces in which no or hardly any daylight penetrated and/or without them being able to make sufficient use of sanitary facilities and/or while the food and/or drinking water which they received was bad and/or filthy and/or insufficient and/or they received no or insufficient medical care

which the accused, being a representative of the Ethiopian government (Derg) in Gojam province, at one or more time(s) in the period between 24 August 1978 up to and including 31 December 1978, in Debre Marcos and/or Metekel, in Gojam province, or at least in localities in Ethiopia (on each occasion) intentionally accepted and/or (in particular) failed to take sufficient measures to prevent and/or stop and/or punish the aforementioned offences

(Art. 8 in conjunction with 9 WOS)

and/or

4.4

aiding and abetting

that head(s) of prison(s) in Debre Marcos and/or Metekel and/or police officers and/or guards and/or one or more other(s) jointly and in conjunction,

at one or more point(s) in time in the period from 1 August 1978 up to and including 31 December 1981, in Debre Marcos and/or Metekel, in Gojam province, or at least at localities in Ethiopia,

jointly and in conjunction with another person,

(on each occasion) violated the laws and customs of war, while

• those acts resulted in severe bodily harm and/or
• those acts involved violence in concert against persons or violence against dead, ill or wounded persons and/or
• those acts involved forcing others in concert to do, not to do or to tolerate something and/or
• those acts were expressions of a policy of systematic terror and/or unlawful action against the entire population or a specific group thereof and/or
• those acts involved a breach of a promise made; and/or
• death or grievous bodily harm to persons other than themselves was likely as a result of those acts
• those acts involved inhuman treatment,

consisting of the fact that at that time and there (on each occasion) they violated

- the provisions of ‘Common’ Article 3 of the Geneva Conventions of 12 August 1949 and/or

- customary international humanitarian law and/or

- ( in particular) the prohibition under customary international law on arbitrary deprivation of liberty

in connection with an (non-international) armed conflict within the territory of Ethiopia, treated persons who did not or no longer took part directly in the hostilities, namely civilians and/or personnel of armed forces who had laid down their weapons and/or those who were hors de combat due to sickness, wounds, detention or any other cause, namely

[person 82]

[person 83]

[person 84]

[person 85]

[person 86]

[person 87]

[person 88]

[person 89]

[person 90]

[person 91]

[person 92]

[person 93]

[person 94]

[person 95]

[person 96]

[person 97]

[person 98]

[person 99]

[person 100]

[person 101]

[person 102]

[person 103]

[person 104]

[person 105]

[person 106]

[person 107]

[person 108]

[person 109]

[person 110]

[person 111]

[person 112]

[person 113]

[person 114]

[person 115]

[person 116]

[person 117]

[person 118]

[person 119]

[person 120]

[person 121]

[person 122]

[person 123]

[person 124]

[person 125]

[person 126]

[person 127]

[person 128]

[person 129]

[person 130]

[person 131]

[person 132]

[person 133]

[person 134]

[person 135]

[person 136]

[person 137]

[person 138]

[person 139]

[person 140]

[person 141]

[person 142]

[person 143]

[person 144]

[person 145]

[person 146]

[person 147]

[person 148]

[person 149]

[person 150]

[person 151]

[person 152]

[person 153]

[person 154]

[person 155]

[person 156]

[person 157]

[person 158]

[person 159]

[person 160]

[person 161]

[person 162]

[person 163]

[person 164]

[person 165]

[person 166]

[person 167]

[person 168]

[person 169]

[person 170]

[person 171]

[person 172]

[person 173]

[person 174]

[person 175]

[person 176]

[person 177]

[person 178]

[person 179]

[person 180]

[person 181]

[person 182]

[person 183]

[person 184]

[person 185]

[person 186]

[person 187]

[person 188]

[person 189]

[person 190]

[person 191]

[person 192]

[person 193]

[person 194]

[person 195]

[person 196]

[person 197]

[person 198]

[person 199]

[person 200]

[person 201]

[person 202]

[person 203]

[person 204]

[person 205]

[person 206]

[person 207]

[person 208]

[person 209]

[person 210]

[person 211]

[person 212]

[person 213]

[person 214]

[person 215]

[person 216]

[person 217]

[person 218]

[person 219]

[person 220]

[person 221]

[person 222]

[person 223]

[person 224]

[person 225]

[person 226]

[person 227]

[person 228]

[person 229]

[person 230]

[person 231]

[person 232]

[person 233]

[person 234]

[person 235]

[person 236]

[person 237]

[person 238]

[person 239]

[person 240]

[person 241]

[person 242]

[person 243]

[person 244]

[person 245]

[person 246]

[person 247]

[person 248]

[person 249]

[person 250]

[person 251]

[person 252]

[person 253]

[person 254]

[person 255]

[person 256]

[person 257]

[person 258]

[person 259]

[person 260]

[person 261]

[person 262]

[person 263]

[person 264]

[person 265]

[person 266]

[person 267]

[person 268]

[person 269]

[person 270]

[person 271]

[person 272]

[person 273]

[person 274]

[person 275]

[person 276]

[person 277]

[person 278]

[person 279]

[person 280]

[person 281]

[person 282]

[person 283]

[person 284]

[person 285]

[person 286]

[person 287]

[person 288]

[person 289]

[person 290]

[person 291]

[person 292]

[person 293]

[person 294]

[person 295]

[person 296]

[person 297]

[person 298]

[person 299]

[person 300]

[person 301]

[person 302]

[person 303]

[person 304]

[person 305]

[person 306]

[person 307]

[person 308]

[person 309]

[person 310]

[person 311]

[person 312]

[person 313]

(...)

(...)

(...)

[person 314]

[person 315]

[person 316]

[person 317]

[person 318]

- cruelly and/or inhumanly, and/or

- ( each time) assaulted their personal dignity (and/or) (in particular) treated the aforementioned persons in a humiliating and/or degrading manner and/or

- pronounced judgments against them and/or enforced these without prior trial by a lawfully constituted tribunal offering all the legal guarantees recognised as indispensable by civilised nations and/or

- arbitrarily deprived them of their liberty,

which cruel and/or unhuman treatment and/or which attacks upon personal dignity and/or humiliating and/or degrading treatment and/or which pronouncement and/or enforcement of sentences and/or which arbitrary deprivation of liberty as aforementioned entailed

• pronouncing (prison) sentences and/or other measures (hard labour) against the aforementioned person(s)on or around 1 August 1978 up to and including 31 August 1978 and/or enforced them and/or had them enforced without first being tried by an (independent) court and/or without having been given a fair trial and/or (in particular) without having been tried by an independent and impartial body and/or without having been promptly informed of the accusations against them and/or without having had the necessary rights and means of defence at their disposal and/or in violation of the prohibition of collective punishment and/or in violation of the principle of legality and/without the presumption of innocence and/or without being able to exercise the right to be present at their own trial and/or without being able to exercise the right not to participate in their own conviction and/or without being able to exercise the right to be advised of the legal and other remedies available and of the time limits within which they must be exercised and/or
• imprisoned the aforementioned person(s) with too many people in spaces that are too small and/or in spaces in which no or hardly any daylight penetrated and/or without them being able to make sufficient use of sanitary facilities and/or while the food and/or drinking water which they received was bad and/or filthy and/or insufficient and/or they received no or insufficient medical care

at and/or for the commission of which (aforementioned) offences he, the accused, and his co-perpetrators jointly and in conjunction

at one or more point(s) in time in or around the period from 1 August 1978 up to and including 31 December 1981, in Debre Marcos and/or Metekel, in Gojam province, or at least at localities in Ethiopia,

was/were intentionally helpful and/or provided opportunity and/or means and/or information,

by then and there intentionally

- making the aforementioned person(s) available to head(s) of prison(s) in Debre Marcos and/or Metekel and/or police officers and/or guards and/or one or more others and/or

- having maintained inhuman conditions in the prison(s) in Debre Marcos and/or Metekel

(Art. 8 WOS (old) in conjunction with 48 CC).

Annex 2

Declaration of charges proven

The Court of Appeal deems it legally and convincingly proven that the accused has committed the offences charged under Count 1, first cumulative/alternative, 2 first cumulative/alternative, 3 first cumulative/alternative, and 4 first cumulative/alternative, on the understanding that:

1.

he, in the period from 1 February 1978 up to and including 31 July 1978, in Debre Marcos, in
Gojjam,

jointly and in conjunction with other persons,

(on each occasion) violated the laws and customs of war, while

• those acts involved forcing others in concert to do, not to do or to tolerate something and/or
• those acts were expressions of a policy of systematic terror and/or unlawful action against a specific group
• those acts involved a breach of a promise made; and/or
• death or grievous bodily harm to persons other than the accused was likely as a result of those acts
• those acts involved inhuman treatment,

consisting of the fact that he, the accused, there and then (on each occasion) violated

- the provisions of ‘Common’ Article 3 of the Geneva Conventions of 12 August 1949 and/or

- customary international humanitarian law and/or

- ( in particular) the prohibition under customary international law on arbitrary deprivation of liberty

in connection with a
( non-international
) armed conflict within the territory of Ethiopia, treated persons who did not (or no longer) take part in the hostilities directly, namely civilians and/or those who were placed hors de combat by detention, namely

1. person 1]

2. [ person 2]

3. [ person 3]

4. [ person 4]

5. [ person 5]

6. [ person 6]

7. [ person 7]

8. [ person 8]

9. [ person 9]

10. [ person 10]

11. [ person 11]

12. [ person 12]

13. [ person 13]

14. [ person 14]

15. [ person 15]

16. [ person 16]

17. [ person 17]

18. [ person 18]

19. [ person 19]

20. [ person 20]

21. [ person 21]

22. [ person 22]

23. [ person 23]

24. [ person 24]

25. [ person 25]

26. [ person 26]

27. [ person 27]

28. [ person 28]

29. [ person 29]

30. [ person 30]

31. [ person 31]

32. [ person 32]

33. [ person 33]

34. [ person 34]

35. [ person 35]

36. [ person 36]

37. [ person 37]

38. [ person 38]

39. [ person 39]

40. [ person 40]

41. [ person 41]

42. [ person 42]

43. [ person 43]

44. [ person 44]

45. [ person 45]

46. [ person 46]

47. [ person 47]

48. [ person 48]

49. [ person 49]

50. [ person 50]

51. [ person 51]

52. [ person 52]

53. [ person 53]

54. [ person 54]

55. [ person 55]

56. [ person 56]

57. [ person 57]

58. [ person 58]

59. [ person 59]

60. [ person 60]

61. [ person 61]

62. [ person 62]

63. [ person 63]

64. [ person 64]

65. [ person 65]

66. [ person 66]

67. [ person 67]

68. [ person 68]

69. [ person 69]

70. [ person 70]

71. [ person 71]

72. [ person 72]

73. [ person 73]

74. [ person 74]

75. [ person 75]

76. [ person 76]

77. [ person 77]

78. [ person 78]

79. [ person 79]

80. [ person 80]

81. [ person 81]

82. [ person 82]

83. [ person 83]

84. [ person 84]

85. [ person 85]

86. [ person 86]

87. [ person 87]

88. [ person 88]

89. [ person 89]

90. [ person 90]

91. [ person 91]

92. [ person 92]

93. [ person 93]

94. [ person 94]

95. [ person 95]

96. [ person 96]

97. [ person 97]

98. [ person 98]

99. [ person 99]

100. [person 100]

101. [person 101]

102. [person 102]

103. [person 103]

104. [person 104]

105. [person 105]

106. [person 106]

107. [person 107]

108. [person 108]

109. [person 109]

110. [person 110]

111. [person 111]

112. [person 112]

113. [person 113]

114. [person 114]

115. [person 115]

116. [person 116]

117. [person 117]

118. [person 118]

119. [person 119]

120. [person 120]

121. [person 121]

122. [person 122]

123. [person 123]

124. [person 124]

125. [person 125]

126. [person 126]

127. [person 127]

128. [person 128]

129. [person 129]

130. [person 130]

131. [person 131]

132. [person 132]

133. [person 133]

134. [person 134]

135. [person 135]

136. [person 136]

137. [person 137]

138. [person 138]

139. [person 139]

140. [person 140]

141. [person 141]

142. [person 142]

143. [person 143]

144. [person 144]

145. [person 145]

146. [person 146]

147. [person 147]

148. [person 148]

149. [person 149]

150. [person 150]

151. [person 151]

152. [person 152]

153. [person 153]

154. [person 154]

155. [person 155]

156. [person 156]

157. [person 157]

158. [person 158]

159. [person 159]

160. [person 160]

161. [person 161]

162. [person 162]

163. [person 163]

164. [person 164]

165. [person 165]

166. [person 166]

167. [person 167]

168. [person 168]

169. [person 169]

170. [person 170]

171. [person 171]

172. [person 172]

173. [person 173]

174. [person 174]

175. [person 175]

176. [person 176]

177. [person 177]

178. [person 178]

179. [person 179]

180. [person 180]

181. [person 181]

182. [person 182]

183. [person 183]

184. [person 184]

185. [person 185]

186. [person 186]

187. [person 187]

188. [person 188]

189. [person 189]

190. [person 190]

191. [person 191]

192. [person 192]

193. [person 193]

194. [person 194]

195. [person 195]

196. [person 196]

197. [person 197]

198. [person 198]

199. [person 199]

200. [person 200]

201. [person 201]

202. [person 202]

203. [person 203]

204. [person 204]

205. [person 205]

206. [person 206]

207. [person 207]

208. [person 208]

209. [person 209]

210. [person 210]

211. [person 211]

212. [person 212]

213. [person 213]

214. [person 214]

215. [person 215]

216. [person 216]

217. [person 217]

218. [person 218]

219. [person 219]

220. [person 220]

221. [person 221]

222. [person 222]

223. [person 223]

224. [person 224]

225. [person 225]

226. [person 226]

227. [person 227]

228. [person 228]

229. [person 229]

230. [person 230]

231. [person 231]

232. [person 232]

233. [person 233]

234. [person 234]

235. [person 235]

236. [person 236]

237. [person 237]

238. [person 238]

239. [person 239]

240. [person 240]

241. [person 241]

242. [person 242]

243. [person 243]

244. [person 244]

245. [person 245]

246. [person 246]

247. [person 247]

248. [person 248]

249. [person 249]

250. [person 250]

251. [person 251]

252. [person 252]

253. [person 253]

254. [person 254]

255. [person 255]

256. [person 256]

257. [person 257]

258. [person 258]

259. [person 259]

260. [person 260]

261. [person 261]

262. [person 262]

263. [person 263]

264. [person 264]

265. [person 265]

266. [person 266]

267. [person 267]

268. [person 268]

269. [person 269]

270. [person 270]

271. [person 271]

272. [person 272]

273. [person 273]

274. [person 274]

275. [person 275]

276. [person 276]

277. [person 277]

278. [person 278]

279. [person 279]

280. [person 280]

281. [person 281]

282. [person 282]

283. [person 283]

284. [person 284]

285. [person 285]

286. [person 286]

287. [person 287]

288. [person 288]

289. [person 289]

290. [person 290]

291. [person 291]

292. [person 292]

293. [person 293]

294. [person 294]

295. [person 295]

296. [person 296]

297. [person 297]

298. [person 298]

299. [person 299]

300. [person 300]

301. [person 301]

302. [person 302]

303. [person 303]

304. [person 304]

305. [person 305]

306. [person 306]

307. [person 307]

308. [person 308]

309. [person 309]

310. [person 310]

311. [person 311]

312. [person 312]

313. [person 313]

315. [person 319]

316. [person 320]

317. [person 314]

321. [person 318]

- cruelly and/or inhumanly, and/or

- ( several times) assaulted their personal dignity (and/or) (in particular) treated the aforementioned persons in a humiliating and/or degrading manner and/or

- arbitrarily deprived them of their liberty,

which cruel and/or inhuman treatment and/or which attacks upon personal dignity and/or humiliating and/or degrading treatment and/or which arbitrary deprivation of liberty as aforementioned entailed the accused and/or one or more co-perpetrator(s)

• pronouncing (prison) sentences and/or other freedom restricting measures (at exposure meetings) against the aforementioned person(s) and/or enforced them and/or had them enforced without having been promptly informed of the accusations against them and/or without having had the necessary rights and means of defence at their disposal and/or without being able to exercise the right not to participate in their own conviction and/or
• had them arrested and/or brought to a police
• imprisoned the aforementioned person(s) mentioned with too many people in spaces which are too small and/or in spaces in which no or hardly any daylight penetrated and/or without them being able to make sufficient use of sanitary facilities and/or while the food and/or drinking water which they received was insufficient and/or they received no or insufficient medical care.

2.

he, in the period from 1 February 1978 up to and including 1 September 1978, in Debre Marcos, in Gojjam province, jointly and in conjunction with other persons,

(on each occasion) violated the laws and customs of war, while

• those acts resulted in death and/or severe bodily harm and/or
• those acts involved violence in concert against persons and/or
• those acts involved forcing others in concert to do, not to do or to tolerate something and/or
• those acts were expressions of a policy of systematic terror and/or unlawful action against a specific group
• those acts involved a breach of a promise made and/or
• death or grievous bodily harm to persons other than the accused was likely as a result of those acts;
• those acts involved inhuman treatment,

consisting of the fact that he, the accused, there and then (on each occasion) violated

- the provisions of ‘Common’ Article 3 of the Geneva Conventions of 12 August 1949 and/or

- customary international humanitarian law

in connection with a
( non-international
) armed conflict within the territory of Ethiopia, tortured persons who did not (or no longer) take part in the hostilities directly, namely civilians and/or those who were placed hors de combat by detention,

namely

2. [ person 321]

3. [ person 322]

4. [ person 313]

5. [ person 323]

6. [ person 324]

7. [ person 319]

and other persons

- ( several times)

which torture consisted of the fact that he, the accused, and his co-perpetrators with a view to obtaining information and/or a confession and/or to intimidate the aforementioned person(s) and/or to force the aforementioned person(s) and/or one or more third parties to do something

- several times kicked and/or punched against the private parts and/or the (bare) feet and/or head and/or the body and/or

- several times tied the hands of the aforementioned persons together and/or then lifted them up and/or then hit the face and/or body
and/or the bare feet of those aforementioned persons with sticks, or at least with a (hard) object

while the aforementioned persons imprisoned.

3.

he, in the period from 14 August 1978 up to and including 17 August 1978, in Debre Marcos and Metekel, in
Gojjam province,

jointly and in conjunction with other persons,

(on each occasion) violated the laws and customs of war, while

• those acts resulted in death and/or
• those acts involved violence in concert against persons and/or
• those acts were expressions of a policy of systematic terror and/or unlawful action against a specific group
• those acts involved a breach of a promise made

consisting of the fact that he, the accused,
jointly and in conjunction with other persons , there and then (on each occasion) violated

- the provisions of ‘Common’ Article 3 of the Geneva Conventions of 12 August 1949

in connection with a (non-international) armed conflict within the territory of Ethiopia, committed against persons who (then) did not take part in the hostilities directly, namely civilians and/or those who were placed hors de combat by detention, namely

1. person 4]

2. [ person 5]

3. [ person 6]

4. [ person 7]

5. [ person 8]

6. [ person 9]

7. [ person 10]

8. [ person 11]

9. [ person 12]

10. [ person 13]

11. [ person 14]

12. [ person 15]

13. [ person 16]

14. [ person 17]

15. [ person 18]

16. [ person 19]

17. [ person 20]

18. [ person 21]

19. [ person 22]

20. [ person 23]

21. [ person 24]

22. [ person 25]

23. [ person 26]

24. [ person 27]

25. [ person 28]

26. [ person 29]

27. [ person 30]

28. [ person 31]

29. [ person 32]

30. [ person 33]

31. [ person 34]

32. [ person 35]

33. [ person 36]

34. [ person 37]

35. [ person 38]

36. [ person 39]

37. [ person 40]

38. [ person 41]

39. [ person 42]

40. [ person 43]

41. [ person 44]

42. [ person 45]

43. [ person 46]

44. [ person 47]

45. [ person 48]

46. [ person 49]

47. [ person 50]

48. [ person 51]

49. [ person 52]

50. [ person 53]

51. [ person 54]

52. [ person 55]

53. [ person 56]

54. [ person 57]

55. [ person 58]

56. [ person 59]

57. [ person 60]

58. [ person 61]

59. [ person 62]

60. [ person 63]

61. [ person 64]

62. [ person 65]

63. [ person 66]

64. [ person 67]

65. [ person 68]

66. [ person 69]

67. [ person 70]

68. [ person 71]

69. [ person 72]

70. [ person 73]

71. [ person 74]

72. [ person 75]

73. [ person 76]

74. [ person 77]

75. [ person 78]

and other persons

- killed the aforementioned persons

which killing consisted in that he, the accused, and his co-perpetrators

strangled the aforementioned persons and/or had aforementioned person(s) suffocated with ropes and/or buried and/or applied/exercised other acts of violence against the aforementioned person(s)

and others

as a result of which the aforementioned persons died.

4.

he, in the period from 1 August 1978 up to and including
31 December 1978 , in Debre Marcos, in Gojjam province,

jointly and in conjunction with other persons,

(on each occasion) violated the laws and customs of war, while

• those acts involved forcing others in concert to do, not to do or to tolerate something and/or
• those acts were expressions of a policy of systematic terror and/or unlawful action against a specific group
• those acts involved a breach of a promise made and/or
• death or grievous bodily harm to persons other than the accused was likely as a result of those acts;
• those acts involved inhuman treatment,

consisting of the fact that he, the accused, there and then (on each occasion) violated

- the provisions of ‘Common’ Article 3 of the Geneva Conventions of 12 August 1949 and/or

- customary international humanitarian law

- ( in particular) the prohibition under customary international law on arbitrary deprivation of liberty

in connection with a non-international armed conflict within the territory of Ethiopia, treated persons who did not (or no longer) take part in the hostilities directly, namely civilians and/or those who were placed hors de combat by detention, namely

[person 82]

[person 83]

[person 84]

[person 85]

[person 86]

[person 87]

[person 88]

[person 89]

[person 90]

[person 91]

[person 92]

[person 93]

[person 94]

[person 95]

[person 96]

[person 97]

[person 98]

[person 99]

[person 100]

[person 101]

[person 102]

[person 103]

[person 104]

[person 105]

[person 106]

[person 107]

[person 108]

[person 109]

[person 110]

[person 111]

[person 112]

[person 113]

[person 114]

[person 115]

[person 116]

[person 117]

[person 118]

[person 119]

[person 120]

[person 121]

[person 122]

[person 123]

[person 124]

[person 125]

[person 126]

[person 127]

[person 128]

[person 129]

[person 130]

[person 131]

[person 132]

[person 133]

[person 134]

[person 135]

[person 136]

[person 137]

[person 138]

[person 139]

[person 140]

[person 141]

[person 142]

[person 143]

[person 144]

[person 145]

[person 146]

[person 147]

[person 148]

[person 149]

[person 150]

[person 151]

[person 152]

[person 153]

[person 154]

[person 155]

[person 156]

[person 157]

[person 158]

[person 159]

[person 160]

[person 161]

[person 162]

[person 163]

[person 164]

[person 165]

[person 166]

[person 167]

[person 168]

[person 169]

[person 170]

[person 171]

[person 172]

[person 173]

[person 174]

[person 175]

[person 176]

[person 177]

[person 178]

[person 179]

[person 180]

[person 181]

[person 182]

[person 183]

[person 184]

[person 185]

[person 186]

[person 187]

[person 188]

[person 189]

[person 190]

[person 191]

[person 192]

[person 193]

[person 194]

[person 195]

[person 196]

[person 197]

[person 198]

[person 199]

[person 200]

[person 201]

[person 202]

[person 203]

[person 204]

[person 205]

[person 206]

[person 207]

[person 208]

[person 209]

[person 210]

[person 211]

[person 212]

[person 213]

[person 214]

[person 215]

[person 216]

[person 217]

[person 218]

[person 219]

[person 220]

[person 221]

[person 222]

[person 223]

[person 224]

[person 225]

[person 226]

[person 227]

[person 228]

[person 229]

[person 230]

[person 231]

[person 232]

[person 233]

[person 234]

[person 235]

[person 236]

[person 237]

[person 238]

[person 239]

[person 240]

[person 241]

[person 242]

[person 243]

[person 244]

[person 245]

[person 246]

[person 247]

[person 248]

[person 249]

[person 250]

[person 251]

[person 252]

[person 253]

[person 254]

[person 255]

[person 256]

[person 257]

[person 258]

[person 259]

[person 260]

[person 261]

[person 262]

[person 263]

[person 264]

[person 265]

[person 266]

[person 267]

[person 268]

[person 269]

[person 270]

[person 271]

[person 272]

[person 273]

[person 274]

[person 275]

[person 276]

[person 277]

[person 278]

[person 279]

[person 280]

[person 281]

[person 282]

[person 283]

[person 284]

[person 285]

[person 286]

[person 287]

[person 288]

[person 289]

[person 290]

[person 291]

[person 292]

[person 293]

[person 294]

[person 295]

[person 296]

[person 297]

[person 298]

[person 299]

[person 300]

[person 301]

[person 302]

[person 303]

[person 304]

[person 305]

[person 306]

[person 307]

[person 308]

[person 309]

[person 310]

[person 311]

[person 312]

[person 313]

(...)

(...)

(...)

[person 314]

[person 318]

and other persons

- cruelly and/or inhumanly, and/or

- ( each time) assaulted their personal dignity (and/or) (in particular) treated the aforementioned persons in a humiliating and/or degrading manner and/or

- pronounced judgments against them and/or enforced these without prior trial by a lawfully constituted tribunal offering all the legal guarantees recognised as indispensable by civilised nations and/or

- arbitrarily deprived them of their liberty,

which cruel and/or inhuman treatment and/or which attacks upon personal dignity and/or humiliating and/or degrading treatment and/or which pronouncement and/or enforcement of sentences and/or which arbitrary deprivation of liberty as aforementioned entailed the accused and/or one or more co-perpetrator(s)

• pronouncing (prison) sentences and other measures (hard labour) against the aforementioned persons on or around 1 August 1978 up to and including 31 August 1978 and/or enforced them and/or had them enforced without first being tried by an (independent) court and/or without having been given a fair trial and/or (in particular) without having been tried by an independent and impartial body and
• kept the aforementioned persons imprisoned with too many people in spaces which are too small and/or in spaces in which no or hardly any daylight penetrated and/or without them being able to make sufficient use of sanitary facilities and/or while the food and/or drinking water which they received was insufficient and/or they received no or insufficient medical care

Annex 3

Endnotes

Voetnoten

1. See also Supreme Court in the so-called Knesevic decision of 11 November 1997,

2. Supreme Court 30 March 2004, ECLI:NL:HR:2004:AM2533, legal ground 3.6.5.

3. Supreme Court 1 December 2020, ECLI:NL:HR:2020:1889, legal ground 2.5.2 et seq.

4. Supreme Court 13 September 2016, ECLI:NL:HR:2016:2059.

5. See i.a. Court of Appeal The Hague 9 May 2008, ECLI:NL:GHSGR:2007:BA4676.

6. By an Act of 14 June 1990 (Bulletin of Acts and Decrees 1990, 369), which came into force on 1 January 1991 (Bulletin of Acts and Decrees 1990, 582), the threat of the death penalty was removed. By an Act of 10 March 1984 (Bulletin of Acts and Decrees 1984, 91, the Fines Classification Act), subjection to a fine was added to the first, second and third paragraphs of Article 8 of the WOS.

7. See also Parliamentary Papers II 2001-2002, 28 337, no 3, p. 6 (Explanatory Memorandum on the legislative history of the WIM).

8. Parliamentary Papers II 1951-1952, 2258, no 3, p. 9. See also Supreme Court 8 July 2008, ECLI:NL:HR:2008:BC7418, par. 10.2.

9. P.A. Nollkaemper,

10. See also Court of Appeal The Hague 7 July 2011, ECLI:NL:GHSGR:2011:BR0686.

11. See, inter alia, Court of Appeal The Hague 7 November 2011, ECLI:NL:GHSGR:2011:BR0686 (Joseph M.).

12. See ECHR 19 January 2021, no 2205/16 (Keskin/Netherlands), § 42-43, and Supreme Court 29 March 2022, ECLI:NL:HR:2022:466.

13. See also HR [Supreme Court] 29 March 2022, ECLI:NL:HR:2022:466.

14. An expert report on forensic handwriting investigation, drawn up and signed by W. de Jong, dated 26 October 2018, p. 15.

15. An expert report on comparative handwriting investigation, drawn up and signed by C. Verhulst, dated 17 December 2018, p. 10.

16. An expert report, drawn up and signed by P.L. Zevenbergen, dated 22 February 2019, p. 9.

17. The page numbers referred to in the footnotes refer each time to the page numbers in the file [name of accused], Merens Investigation, unless stated otherwise. Unless stated otherwise, when official reports are used as evidence, official reports within the meaning of Article 344, Paragraph 1, under 2, of the Code of Criminal Procedure are meant. The evidence should be considered - particularly in terms of time and place - in relation to each other and in connection with each other. If a book or an article is mentioned in the footnote, this always concerns a written document within the meaning of Article 344, Paragraph 1 under 5 CCP. Insofar as written documents have been used, these have only been used in connection with the contents of other evidence relating to the same fact. The Court of Appeal bases its conviction that the accused has committed the charges proven on the facts and circumstances that are included in the evidence and which substantiate the statement of charges proven.

18. In this sense also: Parliamentary Papers II 2002-2003, 28 337, Memorandum following the report, no 6, p. 7.

19. ICC, Prosecutor v. Bosco Ntaganda, N°ICC-01/04-02/06, Trial Chamber Judgment 8 July 2019, Paragraph 701.

20. ICTY, Prosecutor v. Tadić a/k/a ‘Dule’, Appeals Chamber Decision, IT-94-1-AR72, 2 October 1995, Paragraph 70; ICTY, Prosecutor v. Limaj et al., Trial Chamber Judgment, IT-03-66-T, 30 November 2005, Paragraph 170.

21. ICTY, Prosecutor v. Haradinaj, Trial Chamber Judgment, IT-04-84-T, 3 April 2008, Paragraph 49.

22. ICC, Prosecutor v Bemba Gombo, ICC-01/05-01/08, Trial Chamber Judgment, 21 March 2016, Paragraphs 139 and 140.

23. ICTY, Prosecutor v. Haradinaj et al., Trial Chamber Judgment, IT-04-84-T, 3 April 2008, Paragraph 60.

24. ICTY, Prosecutor v. Kunarac et al., IT-96-23 and IT-96-23/1-A, Appeals Chamber Judgment, 12 June 2002, Paragraph 57.

25. René Lefort,

26. Official Report Historical context, p. 2656.

27. Bahru Zewde,

28. Ibidem p. 253.

29. Piece of writing, namely Annex 6 to official report of armed conflict and document to written documents EPRP military activities, Kiflu Tadesse,

30. Bahru Zewde,

31. Chr. Clapham,

32. Ibidem, p. 60.

33. Official report of armed conflict, p. 9, with a written document as a footnote, attached as Annex 6 to this official report, namely the book by Kiflu Tadesse,

34. Official report of armed conflict, p. 8, with footnotes 30 up to and including 32.

35. Piece of writing, namely Annex 6 to official report of armed conflict and document to written document military activities of the EPRP, Kiflu Tadesse,

36. Piece of writing, namely document to written document military activities of the EPRP, Ghelwdos Araia,

37. Piece of writing, namely Annex 6 to official report of armed conflict and document to written document military activities of the EPRP, Kiflu Tadesse,

38. Ibidem, pp. 148 up to and including 115.

39. Ibidem, p. 196.

40. Ibidem, pp. 148 up to and including 151.

41. Piece of writing, namely Annex 1 to official report on armed conflict, Foreign Affairs Code Messages, (Ethiopia annual report 1974-1977, of 17 May 1978, page 30, and Ethiopia annual report 1977-1978, of 26 March 1980, page 79), unnumbered.

42. Gebru Tareke.

43. Piece of writing, namely Annex 6 to official report of armed conflict and document to written document military activities of the EPRP, Kiflu Tadesse,

44. Bahru Zewde,

45. Babile Tola,

46. Piece of writing, namely military activities of the EPRP, p. 10.

47. Piece of writing, namely Annex 6 to official report of armed conflict and document to written document military activities of the EPRP, Kiflu Tadesse,

48. Ibidem, p. 257.

49. Ibidem, p. 247.

50. Bahru Zewde,

51. Piece of writing, namely Annex 2 to official report armed conflict Africa Watch,

52. Ibidem, pp. 102, 110.

53. Piece of writing, namely Annex 1 to the official report armed conflict, Foreign Affairs Code Messages (behind letter from the Dutch Ambassador in Addis Ababa, no 156 1/385 of 27 June 1977), unnumbered.

54. Babile Tola,

55. Piece of writing, namely Annex 6 to official report of armed conflict and document to written document military activities of the EPRP, Kiflu Tadesse,

56. Piece of writing, namely Annex 1 to the official report armed conflict, Foreign Affairs Code Messages (Ethiopia annual report 1974-1977), unnumbered.

57. Ethiopia annual report 1974-1977 of the Dutch Embassy in Addis Ababa no. 1027/312, dated 17 May 1978, pp. 20 up to and including 22.

58. Official report of armed conflict, pp. 8 and 9, with a written document as a footnote, attached as Annex 6 to this official report, namely the book by Kiflu Tadesse,

59. Bahru Zewde,

60. Piece of writing, namely Annex 6 to official report of armed conflict and document to written document military activities of the EPRP, Kiflu Tadesse,

61. Ibidem, p. 382.

62. Ibidem, p. 420.

63. Ibidem, pp. 419, 426, 431.

64. Official report of military activities of the EPRP, pp. 4, 6, 10, and 18.

65. Piece of writing, namely Annex 6 to official report of armed conflict and document to written document military activities of the EPRP, Kiflu Tadesse,

66. Ibidem, pp. 154 up to and including 156.

67. Piece of writing, namely Annex 1 to the official report armed conflict, Foreign Affairs Code Messages (official notice of the Netherlands Embassy in Addis Ababa no 702/166 of 21 March 1977), unnumbered.

68. Statement of the accused, made at the hearing in the first instance on 30 October 2017, minutes p. 19.

69. Statement of the accused, made at the hearing in the first instance on 2 November 2017, minutes p. 74.

70. Statement of the accused, made at the hearing in the first instance on 31 October 2017.

71. Statement of the accused, made at the hearing in the first instance on 2 November 2017, minutes p. 73.

72. Statement of the accused, made at the appeal hearing on 5 April 2022.

73. Official report of interrogation of the accused, p. 260, idem statement of the accused, made at the appeal hearing of 5 April 2022.

74. Written document, namely a copy of a publication in

75. Statement of the accused, made at the hearing in the first instance on 2 November 2017 and on appeal on 5 April 2022.

76. Statement of the accused, made at the hearing in the first instance on 2 November 2017, minutes p. 61;

77. Statement of the accused, made at the appeal hearing on 5 April 2022.

78. Written document, namely Annex 1 to official report of armed conflict, Foreign Affairs Code Messages, telegram of 14 November 1977 from the Dutch Ambassador in Addis Ababa to the Ministry of Foreign Affairs), unnumbered.

79. Official report of examination of witness [person 333], p. 2455, p. 2457.

80. Official report of examination of witness [person 333], p. 2464 and minutes of the examination of witness [person 333] by the Examining Magistrate dated 19 October 2016, Paragraph 38.

81. Minutes of the examination of witness [person 333] by the Examining Magistrate, Paragraphs 42 and 43.

82. Minutes of the examination of witness [person 333] by the Examining Magistrate dated 19 October 2016, Paragraphs 12, 13, 21.

83. Statement of the accused, made at the appeal hearing on 5 April 2022.

84. Minutes of the examination of witness [person 334] by the Examining Magistrate on 14 and 16 September 2016, Paragraphs 4, 43, 52; minutes of the examination of witness [person 335] by the Examining Magistrate on 28 October 2016, Paragraph 9; minutes of the examination of witness [person 314] by the Examining Magistrate on 27 October 2016, Paragraphs 23, 35, 40 in combination with the written document on p. 1795, namely the conversion table of the Ethiopian Coptic calender into the European calendar.

85. Written document, namely a List of collected documents, see inter alia Annex 4 (p. 44) and Annex 10 (pp. 225, 226).

86. Official report of interrogation of the accused, p. 278.

87. Written document, attached as Annex 1 to official report of findings Ethiopian Herald 16 June 1978, p. 1801.

88. Official report of examination of witness [person 334], pp. 2043 and 2044; minutes of

89. Official report of examination of witness [person 335], p. 2118; official report of examination of witness [person 319], p. 1995.

90. Official report of examination of witness [person 335], p. 2120; official report of examination of witness [person 319], p. 1995; official report of examination of witness [person 334], p. 2046.

91. Official report of examination of witness [person 320], p. 2023; minutes of the examination of witness [person 320] by the Examining Magistrate, Paragraphs 14 and 15; official report of examination of witness [person 334], p. 2046; official report of examination of witness [person 335], p. 2118; official report of examination of witness [person 319], p. 1995; minutes of the examination of witness [person 319] by the Examining Magistrate, Paragraph 5.

92. Official report of examination of witness [person 334], p. 2046; minutes of the examination of witness [person 334] by the Examining Magistrate, Paragraph 8; official report of examination of witness [person 335], pp. 2119 and 2121; minutes of the examination of witness [person 335] by the Examining Magistrate, Paragraph 11; official report of examination of witness [person 319], pp. 1996 and 1997; minutes of the examination of witness [person 319] by the Examining Magistrate, Paragraph 9; official report of examination of witness [person 320], p. 2025.

93. Official report of examination of witness [person 320], p. 2025; official report of examination of witness [person 334], p. 2056.

94. Official report of examination of witness [person 320], p. 2025; official report of examination of witness [person 334], p. 2047.

95. Official report of examination of witness [person 334], p. 2047; official report of examination of witness [person 319], p. 1997; official report of examination of witness [person 320], p. 2025.

96. Official report of examination of witness [person 320], pp. 2025 and 2026.

97. Official report of examination of witness [person 319], p. 1997.

98. Official report of examination of witness [person 334], p. 2047; official report of examination of witness [person 335], p. 2121; official report of examination of witness [person 319], p. 1997.

99. Official report of examination of witness [person 319], p. 1997; official report of examination of witness [person 320] p. 2026; minutes of the examination of witness [person 334] by the Examining Magistrate, Paragraph 9.

100. Official report of examination of witness [person 320] p. 2026; minutes of the examination of witness [person 334] by the Examining Magistrate, Paragraphs 9 and 11.

101. Official report of examination of witness [person 320], p. 2026; official report of examination of witness [person 318], p. 2287.

102. Official report of examination of witness [person 319], pp. 1997 and 1998; minutes of the examination of witness [person 319] by the Examining Magistrate, Paragraph 10.

103. Official report of examination of witness [person 334], pp. 2047 and 2049; minutes of the examination of witness [person 334] by the Examining Magistrate, Paragraphs 13 and 19; official report of examination of witness [person 319], p. 1998; minutes of the examination of witness [person 319] by the Examining Magistrate, Paragraph 32; official report of examination of witness [person 335], pp. 2121 and 2123; minutes of the examination of witness [person 335] by the Examining Magistrate, Paragraph 11 .

104. Official report of examination of witness [person 334] p. 2047; official report of examination of witness [person 319], p. 1998.

105. Official report of examination of witness [person 319] p. 1998; official report of examination of witness [person 320], p. 2026; official report of examination of witness [person 334], p. 2047; official report of examination of witness [person 335], p. 2122.

106. Official report of examination of witness [person 319], p. 1998; minutes of the examination of witness [person 319] by the Examining Magistrate, Paragraphs 13 up to and including 15.

107. Official report of examination of witness [person 334], p. 2047.

108. Official report of examination of witness [person 334], p. 2047; official report of examination of witness [person 319], p. 1998; official report of examination of witness [person 320], p. 2026.

109. Official report of examination of witness [person 313], p. 1924; official report of examination of witness [person 318], p. 2288.

110. Official report of examination of witness [person 320] p. 2026; minutes of the examination of witness [person 319] by the Examining Magistrate, Paragraph 15.

111. Official report of examination of witness [person 335], p. 2123; minutes of the examination of witness [person 313] by the Examining Magistrate, Paragraph 25.

112. Official report of examination of witness [person 335], p. 2124.

113. Official report of examination of witness [person 334], pp. 2047 and 2048; minutes of the examination of witness [person 334] by the Examining Magistrate, Paragraphs 10 and 11.

114. Official report of examination of witness [person 334], pp. 2048 and 2049.

115. Official report of examination of witness [person 334], p. 2048; official report of examination of witness [person 335], pp. 2122 and 2123.

116. Minutes of the examination of witness [person 334] by the Examining Magistrate, Paragraph 15; official report of examination of witness [person 335], p. 2125.

117. Official report of examination of witness [person 334], pp. 2050 and 2051.

118. Official report of examination of witness [person 313], pp. 1924 up to and including 1926; official report of examination of witness [person 334], pp. 2048 and 2049; official report of examination of witness [person 335], p. 2124.

119. Official report of findings of visual material, pp. 2699 and 2700; official report of examination of witness [person 318], p. 2288; official report of examination of witness [person 324], pp. 1957-1958.

120. Official report of examination of witness [person 334], p. 2049; official report of examination of witness [person 320], p. 2027; official report of findings of visual material, p. 2706.

121. Official report of examination of witness [person 319], p. 1998; minutes of the examination of witness [person 319] by the Examining Magistrate, Paragraph 17.

122. Official report of examination of witness [person 335], p. 2124.

123. Official report of examination of witness [person 319], p. 1999; official report of examination of witness [person 334], p. 2049; official report of examination of witness [person 320], p. 2027; official report of examination of witness [person 335], p. 2124; official report of examination of witness [person 313], p. 1926.

124. Minutes of the examination of witness [person 319] by the Examining Magistrate, Paragraph 17; official report of examination of witness [person 319], p. 1999; official report of findings of visual material, p. 2706.

125. Official report of examination of witness [person 313], p. 1925.

126. Official report of examination of witness [person 324], pp. 1957 and 1958.

127. Official report of examination of witness [person 319], p. 1998.

128. Official report of examination of witness [person 334], p. 2051.

129. Official report of examination of witness [person 335], p. 2125.

130. Official report of examination of witness [person 319], p. 1999; official report of examination of witness [person 334], p. 2051; official report of examination of witness [person 320], p. 2028.

131. Official report of examination of witness [person 334] p. 2051; minutes of the examination of witness [person 334] by the Examining Magistrate, Paragraph 17; official report of examination of witness [person 314], pp. 2077 and 2078; minutes of the examination of witness [person 314] by the Examining Magistrate, Paragraph 31; official report of examination of witness [person 318], p. 2290; minutes of the examination of witness [person 331] by the Examining Justice, Paragraph 10.

132. Official report of examination of witness [person 334] p. 2052; official report of examination of witness [person 313], p. 1927; official report of examination of witness [person 314], p. 2078.

133. Official report of examination of witness [person 313], p. 1931.

134. Official report of examination of witness [person 334], p. 2052.

135. Official report of examination of witness [person 314], p. 2077.

136. Minutes of the examination of witness [person 313] by the Examining Magistrate, Paragraphs 27 and 28; official report of examination of witness [person 334], p. 2052.

137. Official report of examination of witness [person 334], pp. 2052 and 2053; minutes of the examination of witness [person 334] by the Examining Magistrate, Paragraph 51; official report of examination of witness [person 335], p. 2128.

138. Minutes of the examination of witness [person 313] by the Examining Magistrate, Paragraph 27; minutes of the examination of witness [person 334] by the Examining Magistrate, Paragraph 51.

139. Official report of examination of witness [person 334], p. 2052.

140. Minutes of the examination of witness [person 313] by the Examining Magistrate, Paragraph 33.

141. Official report of examination of witness [person 314], p. 2078.

142. Official report of examination of witness [person 314] p. 2078; minutes of the examination of witness [person 318], p. 2290.

143. Minutes of the examination of witness [person 318] by the Examining Magistrate, Paragraphs 48 and 49.

144. Official report of examination of witness [person 334], p. 2052; minutes of the examination of witness [person 319] by the Examining Magistrate, Paragraph 38; official report of examination of witness [person 335], p. 2128; official report of examination of witness [person 313], p. 1927; minutes of the examination of witness [person 335] by the Examining Magistrate, Paragraph 22; written document, namely Annex I to official report of findings translation of 41 pages Amharic text, translation of 41 pages Amharic text, pp. 927 and 975; written document, namely Annex 21 of the new documents from Ethiopia added on appeal, pp. 382 up to and including 389 of the new documents.

145. Official report of examination of witness [person 334], p. 2052; official report of examination of witness [person 335], p. 2128; official report of examination of witness [person 314], p. 2078; minutes of the examination of witness [person 331] by the Examining Justice, Paragraph 7.

146. Official report of examination of witness [person 335], p. 2126; official report of examination of witness [person 314], p. 2079; written document, namely Annex 4 of the new documents from Ethiopia added on appeal, pp. 31 up to and including 44 of the new documents.

147. Official report of examination of witness [person 334], p. 2053; official report of examination of witness [person 313], p. 1932; written document, namely Annex 4 of the new documents from Ethiopia added on appeal, pp. 45 up to and including 52 of the new documents.

148. Official report of examination of witness [person 334], p. 2053; official report of examination of witness [person 313], pp. 1928 and 1932; minutes of the examination of witness [person 313] by the Examining Magistrate, Paragraph 3; official report of examination of witness [person 318], p. 2291; minutes of the examination of witness [person 331] by the Examining Justice, Paragraph 4.

149. Minutes of the examination of witness [person 313] by the Examining Magistrate, Paragraph 3.

150. Official report of examination of witness [person 334], p. 2053.

151. Official report of examination of witness [person 334], p. 2055; minutes of the examination of witness [person 319] by the Examining Magistrate, Paragraphs 41 and 42; official report of examination of witness [person 335], p. 2126; official report of examination of witness [person 314], pp. 2077 and 2078; minutes of the examination of witness [person 314] by the Examining Magistrate, Paragraph 35.

152. Official report of examination of witness [person 319], p. 1999; official report of examination of witness [person 318], p. 2293; written document, namely Annex 4 of the new documents from Ethiopia added on appeal, pp. 31 and 38 of the new documents.

153. Official report of examination of witness [person 313], p. 1928; official report of examination of witness [person 314], p. 2079; official report of examination of witness [person 318], p. 2291; written document, namely Annex I to official report of findings translation of 41 pages Amharic text, translation of 41 pages Amharic text, pp. 927 and 975; written document, namely Annex 21 of the new documents from Ethiopia added on appeal, pp. 382 up to and including 389 of the new documents.

154. Minutes of the examination of witness [person 334] by the Examining Magistrate, Paragraph 41; official report of examination of witness [person 335], p. 2126; official report of examination of witness [person 313], pp. 1928 and 1929; official report of examination of witness [person 314], p. 2080; official report of examination of witness [person 318], p. 2292; minutes of the examination of witness [person 331] by the Examining Justice, Paragraph 7.

155. Official report of examination of witness [person 334], p. 2054; official report of examination of witness [person 334] by the Examining Magistrate, Paragraph 41; official report of examination of witness [person 335], p. 2127; official report of examination of witness [person 313], p. 1928; official report of examination of witness [person 314], p. 2079; minutes of the examination of witness [person 314] by the Examining Magistrate, Paragraphs 26 up to and including 28; minutes of the examination of witness [person 318] by the Examining Magistrate, Paragraph 22

156. Official report of examination of witness [person 313], p. 1929; official report of examination of witness [person 314], pp. 2080 and 2081, in combination with written document, namely Annex 21 of the new documents from Ethiopia added on appeal, pp. 384 and 388 of the new documents (person 44 on the list).

157. Official report of examination of witness [person 335], p. 2127; official report of examination of witness [person 334], p. 2054; official report of examination of witness [person 318], p. 2292; minutes of the examination of witness [person 318] by the Examining Magistrate, Paragraph 22.

158. Minutes of the examination of witness [person 334] by the Examining Magistrate, Paragraph 56.

159. Written document, namely Annex 1 of the new documents from Ethiopia added on appeal, pp. 1 up to and including 8 of the new documents.

160. Written document, namely Annex 21 of the new documents from Ethiopia added on appeal, pp. pp. 382 and 386 of the new documents; official report of examination of witness [person 318], p. 2290.

161. Written document, namely Annex I to official report of findings translation of 41 pages Amharic text, translation of 41 pages Amharic text, pp. 927 and 975; written document, namely Annex 21 of the new documents from Ethiopia added on appeal, pp. 382 up to and including 389 of the new documents.

162. Written document, namely Annex 2 of the new documents from Ethiopia added on appeal, pp. 10 and 11 of the new documents; written document, namely Annex 3 of the new documents from Ethiopia added on appeal, pp. 13 up to and including 29 of the new documents.

163. Written document, namely Annex I to official report of findings translation of 41 pages Amharic text, translation of 41 pages Amharic text (written notification of 16 August 1978 of [name accused] to the chief administration of the prisons of Debre Marcos), pp. 927 and 975;

164. Written document, namely Annex 2 of the new documents from Ethiopia added on appeal, pp. 10 and 11 of the new documents; written document, namely Annex 3 to the new documents from Ethiopia added on appeal, pp. 18 and 29 of the new documents; written document, namely Annex 5 to the new documents from Ethiopia added on appeal, pp. 55 and 57 of the new documents.

165. Written document, namely Annex 3 to the new documents from Ethiopia added on appeal, pp. 18 and 29 of the new documents.

166. Written document, namely Annex 4 to the new documents from Ethiopia added on appeal, pp. 31 up to and including 52 of the new documents.

167. Written document, namely Annex 21 to the new documents from Ethiopia added on appeal, pp. 385 and 389 of the new documents.

168. Written document, namely Annex 16 to the new documents from Ethiopia added on appeal, pp. 313 up to and including 316 of the new documents.

169. Official report of examination of witness [person 334], p. 2055.

170. Official report of examination of witness [person 334], p. 2052; minutes of the examination of witness [person 334] by the Examining Magistrate, Paragraph 52.

171. Minutes of the examination of witness [person 313] by the Examining Magistrate, Paragraph 32.

172. Minutes of the examination of witness [person 334] by the Examining Magistrate, Paragraph 52.

173. Official report of examination of witness [person 334], p. 2055; minutes of the examination of witness [person 313] by the Examining Magistrate, Paragraph 18.

174. Official report of examination of witness [person 335] p. 2129; minutes of the examination of witness [person 314] by the Examining Magistrate, Paragraph 44.

175. International Committee of the Red Cross (ICRC),

176. International Committee of the Red Cross (ICRC),

177. International Committee of the Red Cross (ICRC),

178. See also International Committee of the Red Cross (ICRC),

179. International Court of Justice, United States of America v. Iran (Case concerning United States diplomatic and consular staff in Teheran), 24 May 1980, Paragraph 9l.

180. International Committee of the Red Cross (ICRC),

181. International Committee of the Red Cross (ICRC),

182. ICTY,

183. ICTR,

184. ICC Elements of Crimes, 2002, Article 8(2)(c)(iv).

185. International Committee of the Red Cross (ICRC),

186. International Committee of the Red Cross (ICRC),

187. International Committee of the Red Cross (ICRC),

188. ICTY,

189. ICTY,

190. ICTY,

191. International Committee of the Red Cross (ICRC),

192. ICTY,

193. International Committee of the Red Cross (ICRC),

194. ICTY,

195. ICTY,

196. ICTY,

197. ICTY,

198. ICTY,

199. ICTY

200. ICTY,

201. ICTY, Prosecutor v. Delalić, IT-96-21-T, Trial Chamber Judgment, 16 November 1998, Paragraph 1112-1119.

202. International Committee of the Red Cross (ICRC),

203. ICTY,

204. Ibidem, Paragraph 504.

205. ICTY

206. ICTY,

207. ICTY, Prosecutor v. Kvočka, IT-98-30/1-T, Trial Chamber Judgment, 2 November 2001, Paragraph 226.

208. Ibidem, Paragraph 173.

209. European Convention on Human Rights,

210. ICTY, Prosecutor v. Furundžija, IT-95-17/1-T, Trial Chamber Judgment, 10 December 1998, Paragraph 162.

211. ICTY,

212. Official report of examination of witness [person 334], pp. 2043 up to and including 2045; official report of examination of witness [person 335], p. 2115.

213. Official report of examination of witness [person 334], pp. 2045 and 2046; minutes of the examination of witness [person 334] by the Examining Magistrate, Paragraph 25; official report of examination of witness [person 335], pp. 2117 and 2118; minutes of the examination of witness [person 335] by the Examining Magistrate, Paragraphs 5 and 6 and 24 up to and including 26; official report of examination of witness [person 319], pp. 1993 up to and including 1996; minutes of the examination of witness [person 319] by the Examining Magistrate, Paragraphs 5 and 7.

214. Official report of examination of witness [person 334], p. 2045; minutes of the examination of witness [person 319] by the Examining Magistrate, Paragraph 8.

215. Minutes of the examination of witness [person 319] by the Examining Magistrate, Paragraphs 10 and 11.

216. Written document, namely Annex I to official report of findings translation of pages with handwritten Amharic text, Ethiopian judgment 921/89 against [name accused], p. 608.

217. Written document, namely Annex 10 of the new documents from Ethiopia added on appeal, comprising a translation of letters dated 7 and 8 April 1978 from the accused and annex, pp. 223 up to and including 226 of the new documents.

218. Official report of examination of witness [person 319], p. 1997; minutes of the examination of witness [person 319] by the Examining Magistrate, Paragraphs 10 and 11.

219. Official report of examination of witness [person 334], pp. 2047 and 2048; minutes of the examination of witness [person 334] by the Examining Magistrate, Paragraph 13; official report of examination of witness [person 335], p. 2123; minutes of the examination of witness [person 335] by the Examining Magistrate, Paragraph 11.

220. Official report of examination of witness [person 319], p. 1998; minutes of the examination of witness [person 319] by the Examining Magistrate, Paragraph 13; official report of examination of witness [person 320], p. 2027; minutes of the examination of witness [person 320] by the Examining Magistrate, Paragraph 35; minutes of the examination of witness [person 334] by the Examining Magistrate, Paragraph 25.

221. Official report of examination of witness [person 319], p. 1999; official report of examination of witness [person 320], p. 2027.

222. Official report of examination of witness [person 334], p. 2051; official report of examination of witness [person 314], pp. 2075 and 2076.

223. See in this respect written document, namely Annex 6 to the new documents from Ethiopia added on appeal, pp. 59 and 123 of the new documents, and written document, namely Annex 9 of the new documents from Ethiopia added on appeal, pp. 212 and 218 of the new documents.

224. Official report of examination of witness [person 334], p. 2053; minutes of the examination of witness [person 334] by the Examining Magistrate, Paragraphs 20 and 21; official report of examination of witness [person 313], p. 1928; official report of examination of witness [person 314], p. 2078 in connection with minutes of the examination of witness [person 314] by the Examining Magistrate, Paragraphs 23 and 24.

225. Written document, namely a copy of a publication in

226. Minutes of the examination of witness Yoseph Kiros Gezahegn by the Examining Magistrate, Paragraphs 14 and 29; written document, namely Annex 4 to the new documents from Ethiopia added on appeal, pp. 31 to 52 of the new documents.

227. Written documents, namely Annex 1 to the new documents from Ethiopia added on appeal, pp. 1 up to and including 8 of the new documents; Annex 2 of the new documents from Ethiopia added on appeal, pp. 10 up to and including 11 of the new documents; Annex 3 to the new documents from Ethiopia added on appeal, pp. 13 up to and including 29 of the new documents; Annex 5 of the new documents from Ethiopia added on appeal, pp. 54 up to and including 56 of the new documents.

228. See Article 7, Paragraph 3, of the Statute of the Yugoslavia Tribunal and Article 6, Paragraph 3, of the Statute of the Rwanda Tribunal.

229. I.a. ICTY 30 June 2006 (Prosecutor v. Oric), IT-03-68-T

230. Supreme Court 8 November 2011, ECLI:NL:HR:2011:BR6598.

231.

232. See Bevers in

233. ICTY,

234. Statement of the accused, made at the appeal hearing on 6 April 2022.

235. Statement of the accused, made at the hearing in the first instance, pp. 29 and 30; official report of examination of the accused, p. 2330 and Annex 1 to an official report of examination of witness [person 347], namely a printout of a wiretapped conversation dated 26 February 2015 22:49 hours, p. 2368.

236. Statement of the accused, made at the appeal hearing on 6 April 2022 in conjunction with statement of the accused, made at the appeal hearing on 5 April 2022.

237. Statement of the accused, made at the hearing in the first instance on 31 October 2017.

238. See ICTY

239. ICTY,

240. HR [Supreme Court] 19 December 2017, ECLI:NL:HR:2017:3185.

241. Nederlands Juristenblad 8 April 2022, digitally available at https://www.njb.nl/nieuws/vragen-ehrm-aan-nederland-over-levenslang/ and cases available at https://hudoc.echr.coe.int/

242. Act of 11 April 2018 to amend the Civil Code, the Code of Criminal Procedure and the Criminal Code in order to enable the compensation of emotional damage and to promote the recovery thereof as well as the remedy for displaced loss by third parties in criminal proceedings, Bulletin of Acts and Decrees 218, 132.