Derg guilty of genocide or politicide-a reply to Eskinder Nega by Firew Kebede Tiba, PhD

January 1st, 2011 Print Print Email Email

Dear Editor;

In his most recent contribution (31 December 2010), which appeared on your website, Eskinder Nega raised the question of whether Derg officials were wrongly convicted of genocide and concluded that “they have been sentenced to death for the wrong reasons…[and] they are not guilty of genocide.”(http://www.ethiomedia.com/augur/4358.html ). This is not an unfamiliar argument as it was the mainstay of the defense team’s argument against the charges. Let me first begin by expressing what I felt about this analysis. It seems to me that the purpose of his analysis is to present the perpetrators in a positive light so as to soften public opposition to the apology being requested. One can simply note the subliminal pressure on the reader in his profiling of the notorious butcher of Gondar whose infamy has entered in to the local folklore simply as a pathetic, insecure, and an underachiever young man not worthy of the maximum punishment a society reserves to its serious offenders. This may be an unfair assessment of Eskinder’s intentions and I stand to be corrected. On the other hand, he has not done anything to dispel the rumor that even at his old age Melaku continues to be defiant and rejects accusations labeled against him. Again I stand to be corrected on the veracity of these rumors. Eskinder would have done him and his lot a favor if he probed deeper and presented evidence that Melaku is not in league with his former boss Mengistu Hailemariam who publically, after the guilty verdict, categorically said that he had never killed a fly let alone a human being. [Mengistu’s Reuters Interview, video widely available online] Fair enough, and everybody is entitled to their opinion, but what worries me the most is how the legal arguments were presented to diminish the significance of whatever crimes they ‘should have been guilty of.’ I do not think that we should take these lightly.

Genocide is a relatively new term coined by Rapahel Lemkin, a Polish Jew lawyer, in 1944. This means, all crimes of genocide that we recognize today such as the Jewish holocaust or the Armenian genocide were not labeled as such before this term was coined. Such crimes were known by different names, among others, crimes against humanity. The NAZI war crimes suspects were not charged and convicted of genocide. Rather they were charged and found guilty of committing crimes against peace, waging war of aggression, war crimes and crimes against humanity. The word genocide, however, came to acquire such a powerful meaning and connotations so that labeling all types of massive killings as genocide as opposed to, say, crimes against humanity is becoming very commonplace. In reality, crimes against humanity is as heinous, grave and an affront to the conscience of humanity as genocide is. Any argument which seeks to diminish the moral blameworthiness of individuals who commit crimes against humanity is unacceptable. For argument sake, however, it does not make a difference whether Derg officials were convicted of crimes against humanity or genocide as far as the gravity of their offence is concerned both under our law and under international law. Perhaps, for various reasons, there is more stigma attached to genocide than other forms of mass killings.

On political groups: as Eskinder pointed out, including political groups among groups protected against genocide was a controversial subject and it was eventually dropped from the 1948 Genocide Convention due to a political compromise which emanated from a pressure exerted by the Soviet Block. Ethiopia at the time simply abstained and did not vote against the exclusion of political groups. But for Lemkin, the man who coined the word genocide, political groups were protected against genocide, although he excluded them later in his draft treaty prepared for the UN out of fear of disagreement by member states. Here is the original definition from his book: “Axis Rule in Occupied Europe” (1943):

“Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be the disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.”

Furthermore, in 1946, when the General Assembly of the United Nations called for a convention on genocide on its 11 December 1946 resolution, it explicitly included crimes committed on political grounds as crimes of genocide punishable under international law.

Be this as it may, Ethiopia, along with a handful of other countries such as, France (Art. 211-1 of its Penal Code) and Bolivia moved to include political groups in the category of groups protected against genocide. Considering all these, and the fact that the Ethiopian Penal Code of 1957 pre-existed the commission of the crimes, there is no legal ground for disputing that the suspects could not be charged with genocide. Yes, our law is not co-extensive with the genocide convention or the national laws of other countries which excluded political groups from protection, but it does not contradict any rule of international law and it better protects Ethiopian citizens.

Eskinder also took issue with whether the number of victims fulfilled the threshold for genocide and obliquely referred to the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia to support his argument. This could pass for a respectable argument in defense of the suspects before any court of law if pursued rigorously but nonetheless, must fail. The essence of the law against genocide is not about numbers. It is about the intention to eliminate protected groups in whole or in part and how far the suspect goes to realize his or her intentions. We may summarily dismiss the argument that Derg did not intend to eliminate EPRP or any other political opposition in whole, because examples show that not everybody who was an EPRP member died or suffered adverse consequences. But this is immaterial. In relation to this, however, what Eskinder failed to point out is that genocide is committed not only by killing- other acts such as imprisonment, torture, even rape (as was recognized by the Rwanda Tribunal) so long as those actions were taken to further the genocidal intent amount to genocide. There is a strong case to show that, Derg intended to eliminate parts of political groups standing in opposition to its revolution. It is unrealistic to expect that Derg needed to wipe out all or a given number of EPRP members to meet the threshold. But at the very least, it is a matter of common knowledge that it imprisoned those it identified as members of the opposition in furtherance of its policy of eliminating EPRP and other opposition groups. Others who were not affected were mainly because, either they escaped or Derg was not able to lay its hands on them.

Can one counter the argument that the crime did not reach the genocidal threshold simply because only less than ¼ of the member of the group were targeted as asserted by Eskinder? Assuming that the figures are true, let us look at a case from the Tribunal on Former Yugoslavia, where only one incident was labeled as genocide while most others were categorized as crimes against humanity. This was confirmed by the International Court of Justice as well. In this one instance relating to the massacre in Srebrenica, the victims mainly men- including those above 65 and young boys were less than 8000 in number constituting roughly about 1/5 of the population of the region. The tribunal in Krstic case driving the message home that number is only the beginning but not the end of the inquiry observed:

“the numeric size of the targeted part of the group is the necessary and important starting point, though not in all cases the ending point of the inquiry. The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration. If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4.”

So what do we know about the number of members of the opposition targeted for liquidation, torture, imprisonment, rape, enforced disappearance etc, in comparison to the EPRP membership? Is the number and composition of those targeted (including innocent children) not emblematic of the whole group? Were those who perished not essential for the survival of the group? Did this terror in fact not succeed in vanquishing EPRP and the opposition beyond any possibility of recovery? I think we have our answer.

Eskinder also wrote that the crime needs to be called politicide instead of genocide following Gurr and Harff. Politicide is not a legal term and does not carry any punishment in any modern criminal code. Until that word enters a legal lexicon we ought to call it what our criminal code calls it.

He also raised an important issue of prosecutorial discretion. I argued elsewhere that, the argument whether the acts constituted genocide as it is popularly known or not, is doing a disservice to the whole debate considering the highly politicized nature of such trials. The Special Prosecutor had an option of charging the suspects with commission of crimes against humanity carrying same punishment as well as no lesser degree of moral blameworthiness. However, he did what he did and here we are. But let it be remembered that whether they were found guilty of genocide or crimes against humanity it does not diminish the extent of their guilt. In fact, to the contrary, being charged under such a novel and uncommon provision has helped rally support for them as if they are being taken for a ride by those implementing ‘victor’s justice’ under a controversial law. From my readings of the decision of the Federal High Court, the defense and their witnesses were sometimes wrongly trying to defend the accusations as if they were charged with trying to eliminate a particular ethnic group. Their defenses sometimes run like, “derg did not have a policy of eliminating any ethnic group” . This was not what they were charged with and this line of defense in addition to wasting the defense’s precious time and energy, had to an extent also helped in leaving the wrong perception about the trials. The Amharic word for genocide “Zer Matfat” which is equivalent to “eliminating a race” might have also played a role in this.

I agree with Eskinder that the suspects did not receive adequate legal representation and their case dragged on for decades. There are also numerous questionable aspects of issues of individual criminal responsibility which could be a basis for challenging the verdicts for some of the suspects. The legal procedure is almost complete unless the Cassation Court says otherwise. Thus, at this stage the larger debate is the extent to which they are prepared to come clean of their own accord and whether the victims and the wider society is prepared to put this behind and move on. One has to do the convincing but the tone of this otherwise fine analysis by Eskinder Nega did not seem quite like it.

Firew Kebede Tiba is a Lecturer in Law at the University of Waikato School of Law in Hamilton, New Zealand. He could be reached at: firewtiba@gmail.com


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Firew Kebede Tiba, PhD
Lecturer, University of Waikato
Faculty of Law-Te Piringa
Private Bag 3105
Hamilton 3240, New Zealand
Tel: +6478384466 ext 8094

http://www.waikato.ac.nz/law

  1. Drama
    | #1

    TO ALL ET’S WITH COMPLEXES.
    PLEASE FIND SOME HEALTHY AGENDA AND HELP YOUR AFRICAN BROTHERS & SISTERS RATHER THAN BEING ENGULFED IN AN UNHEALTHY DEBATE ABOUT GENOCIDE. YOUR POLITICS AND MENTAL HEALTH SUCKS. GET A LIFE, A NEW ONE. MAYBE YOU WILL REALIZE THERE IS A LOT MORE TO LIFE THAN YOUR LITTLE CHICKEN BRAINS. SOME OF YOU ARE EDUCATED BUT DON’T SEE THE HEALTY PART OF LIFE. YOU ARE EDUCATED FOR DEMISE AND YOU PROBABLY HAVE NO FUN IN YOUR LIFE

  2. Aba Biya Abba Gobbu
    | #2

    Fellow Country Men,
    I wish you a Happy , Healthy and Freedom New Year.

    If everything is regarded, i.e. genocide, civil – war, government against insurgents, the concept/term will loose its basic meaning. Genocide came into being when a government/organization, tries to cleancing another ethnic group than its own. It took place in the former Yugoslavia, Ruwanda, Ethiopia, and many other places..

    In the case of Ethiopia, genocide committed by the TPLF/woyane gangs against the Anuwak, because they belong to other tribes than the golden race the tigres.

    Derg did never commit genocide, The Ethiopian security fought against internal and external enemies without the concept of ethnich cleansing.

    The responsibilities could be refered to induvidual leaders. Derg has nothing to do with genocide.
    Ethiopia prevails.

  3. Birtu/can
    | #3

    All this theatrics about pardoning Derg officials is another well thought plan(ploy) of woyane’s propaganda machine anticipating what the future might hold for its members. Woyane looked into the crystal ball and didn’t like what it saw. It is not a rosy picture in every sense of the word.Sooner or later, some woyane thugs are going to end up on death row. Should that happen-woyane figured-by pardoning Derg murderers,they will set precedent to the concept of “forgive and forget”. So,they concocted the idea of hiring some useful idiots of the religious kind to fool the public into accepting it. In my opinion, the killers should rot in jail for the simple reason of checks and balances.You commit a crime then naturally you have to do the time. The punishment should also fit the crime. Since most of these Derg officials are old and fragile-a life sentence is adequate. They are better off cooped up in jail anyway.Freedom doesn’t guarantee safety. In fact, most of them might end up dead on the outside.

  4. Kebede
    | #4

    Eskindr and Dr. frew – thank you both and happy new year. I learn some valuable lessons about justice, jenocide and crimes against humanity

  5. Hilina Negassa
    | #5

    Indeed it is right to call what you see by what it is. Dr. Frew is totally off beat. To take Eskinder as a defender of the Derg Members and to take his information as a defense argument is not right but out right assault on the individual’s effort. Eskinder did not start and did not finish defending the accused. He tried to give us a perspective to what he saw in front of him. He did not say they did not commit crime and he never stated that they are free of the crimes they are charged with. The fact is he put the onus on the judiciary system in place. He shades light on the political motive of the ruling group and why it is doing this. To take this in any other way means either of two things. One is to perpetuate this issue alive and gives credence to the EPRDF court. The other is to justify the acts of the courts and make EPRDF look good. Either way it is to the benefit of EPRDF. It is not justice, it is not for the right of the victims, but it is to say that the justice system EPRDF is practicing is right. WOW! Nothing could be further than the truth. EPRDF and justice, EPRDF and truth, EPRDF and the law are poles apart.

  6. melkamu
    | #6

    I am wondering if this writer and Eskinder had been in mature age and in Ethiopia during the the early 1974 till mid 1975. The same type of analysis and arguments had been posted at those times to justify the killing of ‘reactionary’ forces by the so called progressive elements.
    አስራችሁ አትቀልቡዋቸው … ንጉሱ ይሰቀል…that was the call of the day because it was ‘revolution’. Today we are judgeing the soldiers who took power to fill the political vacume and were confused and not sure how to lead the crowd or to follow the crowd. Now we analyse the difficulty of ‘pardoning’ them. I agree there had been serious crime commited by these individuals but we all contributed to the mess. Lets grow up and pass judgenent as plain and simple. Lets be honest to ourselves, atleast. Lets stop dancing to the woyane tune. Woyane commited far more crimes than what we really publicly known… nameless citezens perished in their villages during the armed resistance and beyond.

  7. Anonymous
    | #7

    mr drama,wherever you are/from, it just being a drum head to put such a comment on the http://www.,for all to read. you must be a clone in one of western nations,ya for sure you don’t understand what it means to one when one is born,lived his grand ,grand….lived there.It is totally different feeling all together.So the fact that you are educated doesn’t let you abandon you ancestors or who you are as you are suggesting and life without such things is not living but being a clone.I am hell sure either you are 14 years old teen with identity crisis in you drum head.

  8. Tekulawun kebegu leyu
    | #8

    Anonymous :mr drama,wherever you are/from, it just being a drum head to put such a comment on the http://www.,for all to read. you must be a clone in one of western nations,ya for sure you don’t understand what it means to one when one is born,lived his grand ,grand….lived there.It is totally different feeling all together.So the fact that you are educated doesn’t let you abandon you ancestors or who you are as you are suggesting and life without such things is not living but being a clone.I am hell sure either you are 14 years old teen with identity crisis in you drum head.

    You’re wrong. Drama is a frustrated meles gang. He dosen’t need us discuss issues. These two contributors ( Eskinder & Firew) might seem to some of us that they’re interested in some academic issues. But I consider it eye opening. The more ,we the people at large get access to such information or views the more we get confidence in our struggle against injustices…That frustrates the meles gangs…because they are the next to be brought to the court of law…
    Such disscussions should be encouraged.

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