Equipo Nizkor - Ethiopia: Special Prosecutor's reply to objections filed by counsels for the defendants in the case of Col. Mengistu Haile Mariam et al.

To: The Transitional Government of Ethiopia
Central High Court
Addis Abeba

May 23rd, 1995

S.P.O. Investigation File N° 401/85

Prosecutor: ... The Transitional Government of Ethiopia - Special Prosecutor
Accused: ... Col. Mengistu Haile Mariam et al

A reply submitted by the Special Prosecutor pursuant to Art. 131(1) of the Criminal Procedure Code in response to the objection filed by counsels for defendants on March 07, 1995.

The objection of the defence counsels to the charge should be examined under two sections. Its content and appropriateness should be evaluated and determined in light of Art. 130(2) of the Criminal Procedure code. Under section one, the following points of objection can be categorized:

1. The accused were Head of State. They shall not be held responsible for acts they committed in such capacity. Since an act of Head of State is an "Act of State", it isn't subject to condemnation and accusation.

2. No offence and offender without law.

3. An objection based on the Transitional Period and the charter thereof.

4. The Transitional period has resulted in an additional hardship on the accused; the guilt of the accused has been determined in advance even through legal instruments.

5. The provisions of the law specified in the charge and the law itself are unrelated.

Under section two also:

6. The charge is barred by limitation

7. The accused were not made to appear before a court of preliminary inquiry.

8. The identity of the accused is not correctly stated.

9. The allegation "misrepresentation in the name of court" is not clear.

10. The charge is not clear.

11. If it is to be held that the hearing should continue, it is submitted that the first seventeen counts be separately tried.

The five objections enumerated under section one hereinabove don't fall within Art. 130 of the Criminal Procedure Code. They don't even have any relation with it. These are points that should be submitted by the accused or their counsels after the hearing of the prosecution evidence and the defense evidence as envisaged by Art. 148 of the Criminal Procedure Code.

The remaining points of objection can be classified as politically tainted and out of context and hence they have no relevance in law or in fact. They even prayed for national reconciliation while they were required to present their objection to the charge.

Art. 130(2) of the Criminal Procedure Code has expressly and exhaustively listed the points of objection to be raised by an accused against a charge. These are the following:

"the case is pending before another court; or that he (the accused) has previously been acquitted or convicted on the same charge; or that the charge against him has been barred by limitation or the offence with which he has been charged has been made the subject of pardon or amnesty or that he will be embarrassed in his defence if he isn't granted a separate trial or that the decision in the criminal case against him cannot be given until other proceedings have been completed or that he is not responsible for his acts."

Even objections such as "no permission to prosecute as required by law has been obtained, or he (the accused) is not responsible for his acts" are required to base themselves on the Criminal Procedure Code. These are not objections that may enable the accused to present his defence without the permission of the court or to ridicule whoever he dislikes. Therefore, based on the aforementioned arguments, we pray the court to reject the objections of the defence counsels that we categorized under section one from one to five for the fact that they are not in line with Art. 130(2) of the Criminal Procedure Code. If this is not acceptable to the court, we submit the following argument.

I. ABOUT OBJECTIONS UNDER SECTION ONE

1. Concerning the plea that the accused were Head of State; they shall not be held responsible for the acts they committed in such capacity, since an act of Head of State is an "Act of State", it is not subject to condemnation and accusation.

This objection has no legal basis. An offence committed in the capacity of a Head of State is not only punishable but also the punishment may be aggravate. To elaborate this point, we shall examine the immunity of Head of State which the accused invoked in light of the principle of equality before the law.

A. A HEAD OF STATE IS SUBJECT TO ACCUSATION AND PUNISHMENT

1.1 The Versailles Treaty which was concluded before the Second World war, on June 28, 1919 has, in its article 227 withdrawn the immunity of Head of State from prosecution once and for all. It reads as follows:

"The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor for a supreme offence against international morality and the sanctity of treaties. The Allied and Associated Powers will address a request to the Government of the Netherlands for the surrender to them of the ex-Emperor in order that he may be put on trial."

1.2 The Nuremberg charter which was promulgated to punish the war criminals of Nazi Germany has also reaffirmed the Versailles Treaty stating that whenever a Head of State is found guilty of war crimes, he should be charged and convicted.

It is to be noted that our country, Ethiopia, has accepted the London Treaty on Oct. 3, 1945, and ratified the Nuremberg charter on Aug. 08, 1945. Article 7 of the Nuremberg charter reads as follows:

Article 7

The Official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

1.3 The UN General Assembly on its session in 1946 and in its resolution n° 96(1) has declared that genocide is an offence condemned by the civilized world and punishable under international law. It is unequivocally stated that if one is found guilty of genocide, be it a Head of State or otherwise, he shall be charge and punished, It reads as follows:

The punishment of the crime of genocide is a matter of international concern.

The General Assembly, therefore, affirms that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices - whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds - are punishable.

1.4 The Genocide Convention which Ethiopia signed on Dec. 11, 1948 and ratified with no reservation on July 01, 1949,and which was subsequently incorporated into the Ethiopian Penal Code of 1949, provides in its article 4 as follows:

Article 4

Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

1.5 The International Convention on the Suppression and Punishment of the Crime of Apartheid which was ratified by the Provisional Military Administration Council or Government on Sept. 19, 1978 has expressly declared in its article 3 that international criminal responsibility shall apply to Head of State. It reads as follows:

Article 3

International Criminal responsibility shall apply, irrespective of the motive involved, to individuals, members of organizations and institutions and representatives of the State in which the acts are perpetrated or in some other State, whenever they:

(a)- Commit, participate in, directly incite or conspire in the commission of the acts mentioned in article II of the present Convention.

(b)- Directly abet, encourage or co-operate in the commission of the crime of apartheid.

1.6. From the decisions of the Nuremberg tribunal and opinions of scholars in the field of international law, one can easily understand that criminal offenses committed in an official capacity as Head of State or responsible government official shall always be penalized and also constitute a ground for aggravating the punishment.

Most of the major war criminals tried in the Nuremberg tribunal held higher offices in the Nazi government which enabled them to easily apprehend the aims and goal of the criminal policies of the regime, and to commit or participate in the commission thereof. The official position of defendants was not, for the tribunal, a ground for mitigating the punishment; it rather constituted a ground for aggravating it.

Thus, one can safely conclude that whosoever commits an international criminal offence in an official capacity as a Head of State or responsible government official shall always be accountable for his acts and the punishment shall always be aggravated.

Heads of States and other higher responsible government officials in any form of government are all required and obliged to know international crimes thereunder. They are also obliged to prevent the commission of these acts and to ensure the observance of the international norms.

By the same token, they must also be equally responsible and severely punished whenever they are found guilty of the commission of these acts (offenses). This was clearly stated by camden and V.N. Judriavtsev, members of the U.S.S.R. Academy of Science in their book, "the Nuremberg Trial and International Law", 1990, p.118.

1.7. The Statute for the establishment of an International Tribunal for the trial of war criminals in the former Yugoslavia clearly stated that the official position of any defendant shall not be considered as a ground of immunity from criminal responsibility nor for mitigating the sentence. Article 7 of the statute reads as follows:

Article 7 Individual criminal responsibility

2. The official position of any accused person, whether as head of state or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.

1.8 The statute which established an International Tribunal in Rwanda has a similar provision. Article 6 of the statute reads as follows:

Article 6

2. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.

In general, being a Head of State or a higher responsible government official per se is a ground neither for relieving such person from criminal responsibility nor mitigating punishment. We have clearly demonstrated this particular point by citing relevant international instruments. There is no single international law that lets Heads of States or other responsible government officials go with impunity for criminal acts they commit in such capacities. It is, thus, evident from these international law norms and other related laws that the objection raised by the defence counsel is only a jumble of words with no legal basis whatsoever.

Although defendants invoked international law to support their argument that they, as Head of State, shouldn't be subject to any accusation or condemnation, international law affords them no protection in this respect; it rather makes them liable to aggravated punishment.

B. CONCERNING EQUALITY BEFORE THE LAW

This tribunal, in accordance with international and national laws and before the eyes of the Ethiopian people and the international public, is expected to assure the implementation of the principle of equality before the law.

The principle of equality before the law is the basic principle of republican government and it is the basis for the prevalence of democracy. It's not only the desire but also the right of every individual citizen. Hence, it should create a concrete and visible social security. Any legally protectible right should always be enjoyed on the basis of equality.

1.9 The Universal Declaration of Human Rights under Article 7 affirms that all are equal before the law and are entitled to equal protection of the law, thereby substantiating the abovementioned facts. The article reads as follows:

Article 7

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

1.10 Article 4 of the 1957 Penal Code of Ethiopia reads as follows:

Article 4 Equality before the law

Criminal law applies to all alike without discrimination as regards persons, social conditions, race or religion.

No difference in treatment of offenders may be made except as provided by this code which are derived from immunities sanctioned by public international and constitutional law, or relate to the gravity of the offence or the degree of guilt, the age, circumstances or special personal characteristics of the offender, and the social danger which he represents.

We shall examine this provision, in light of the right of immunity from prosecution and condemnation invoked by defendants.

The famous scholar and authority on the Penal law of Ethiopia, Philippe Graven, has written on this matter in his book, "An Introduction to Ethiopian Penal Law". His commentary reads as follows:

"The principle of Equality before the law, which will also be found in the Universal Declaration of Human Rights of December 10, 1948, means that the law, whatever its nature, applies to all individuals alike and governs the conduct of all inhabitants of a State, and not only of certain classes among them. This principle is not relevant solely to criminal law but, eg. to constitutional or civil law as well. Applied in the criminal field, the rule laid down in the constitution and recalled in article 4 means both that all individuals may claim the same legal protection if they have been injured by an offence, and that all persons who have come into conflict with the law must be treated equally and tried exclusively in accordance with the provisions of the law they have infringed, regardless of their race, religion, social position or other circumstances of a similar nature which don't affect their degree of guilt."

"The immunity of the Emperor is personal and a comparable immunity is not enjoyed by other members of the Imperial Family. The reasons which explain the immunity of the Sovereign, whichever they may be, can not apply to justify its extension to the family of the Sovereign and, as a matter of fact, Ethiopian tradition goes against this extension. The Fetha Negest declared that the Emperor shall try all persons equally and with impartiality, whether they are "his son, his parents or his friends" and Ethiopian history supplies the example of Emperor Zara Yacob who sentenced to death under the ordinary law his son who had murdered a slave. It is therefore, on historical as well as juridical grounds that the Ethiopian Constitution (of 1955) provides for the immunity of the Emperor, and of the Emperor alone."

1.11 Although counsels for defendants argued in their preliminary objection, by invoking article 4 of the 1955 constitution, it is evident from the aforementioned comment by Philip Graven and from article 62(b) of the said constitution that the immunity of the Emperor is personal.

Article 62(b) of the 1955 constitution which counsels for defendants deliberately avoided reads as follows:

Article 62(b)

Any resident of the Empire may bring suit in the courts of Ethiopia, against the Government, or any Ministry, Department, Agency or instrumentality thereof, for wrongful acts resulting in substantial damage. In the event that the courts shall find that such suit has been brought maliciously or without foundation, the Government, or any Ministry, Department, Agency, instrumentality, or official thereof against whom or which such suit was brought, shall have the right of action against such resident for such malicious or unfounded suit, and the court shall, in such case, decree remedies or penalties according to the law.

1.12 Defendants were only members of the Provisional Military Administration Council or Government, and they were not "Head of State". We shall look into proclamations nº 1/74, 2/74 and 110/77.

Proclamation nº 1/74, proclaimed on Sept. 12, 1974 by the Provisional Military Administration Council, provides in article 3 that the Crown Prince, His Highness Merid Azmatch Asfa Wossen shall be king and Head of State of Ethiopia.

The proclamation enacted by this same Government following the former, i.e. procl. nº 2/74 provides under article 2 that the Provisional Military Administration council shall discharge the functions of the Head of Government (and not of the Head of State) until the king-designate returns to the country and the coronation ceremony is held.

Proclamation n° 110/77 which is enacted by this same Government clearly stated under article 8(1) that the power to direct, on behalf of the council, affairs of State as Head of State belonged to the chairman of the Council, it belonged neither to the congress nor to the members of the Council; i.e. the present defendants.

By reading the preamble of Procl. n° 1/74 in conjunction with article 5 of the same, we have a point to make and we quote:

"Realising that the Constitution of 1955 was prepared to confer on the Emperor absolute powers; it doesn't safeguard democratic rights but merely serves as a democratic facade for the benefit of world public opinion; that it wasn't conceived to serve the interests of the Ethiopian people; that it was designed to give the baseless impression that fundamental natural rights are gifts from the Emperor to his people; and that, above all, it is inconsistent with the popular movement in progress under the motto "Ethiopia Tikdem" and with the fostering of economic, political & social development;... The Constitution of 1955 is hereby suspended... The new draft Constitution, the promulgation of which has been demanded by the Armed Forces Council as a matter of urgency, shall be put into effect after necessary improvements are made to include provisions... to safeguard the human rights of the people."

This honourable court would clearly take note of the fact that defendants were not Head of State; that they had ascertained, by law which they enacted themselves, that the Crown Prince, His Highness Mend Azmatch Asfa Wossen, shall be the Head of State or King; that they later on conferred on the chairman of the council the power to direct, on behalf of the council, affairs of State as Head of State; that they suspended the 1955 Constitution which gives personal immunity to the King as Head of State, by denouncing it as obstacle for development which gives divine power to the King; and that they are now, paradoxically, going backwards and arguing that the Constitution enacted by the government they toppled down and which they later on suspended, would give them immunity.

It is quite evident from the detailed laws we have mentioned that neither the chairman of the Council nor these defendants have any law on their side which would give them immunity from prosecution under international law as well as Ethiopian law; owing to their official positions, they are rather subject to aggravated punishment. This being the fact, that there have been a multitude of unfounded objections and uproar against the charge submitted by the Special Prosecutor is quite amazing.

1.13 There exists no law which authorizes defendants to commit the crime of genocide, to kill without due process of law, to inflict bodily harm and to commit the crime of enforced disappearance. The proclamation which they allegedly enacted in their capacity as Head of State and which they consider to be superior to all laws doesn't give them such power either.

Proclamation nº 1/74 of the P.M.A.C. provides under article 9 for the establishment of a Military Court. In as much as it has been practically proved that this whole set up was pretention and camouflage, so were defendants aware from the very outset that they had no power to kill arbitrarily.

According to article 8 of this same proclamation, the Penal Code of 1957 was not suspended; it was operational. Since this is a clear fact of which the court would take judicial notice, defendants had no power to commit prohibited and punishable acts except those that are required or authorized by law pursuant to article 64 of the Penal Code.

An objection based on the argument that the proclamations enacted by the P.M.A.C. or government were superior to all laws has been forwarded by defendants. The office of the Special Prosecutor understands this argument as a confession of defendants to the effect that they placed themselves above the law and brutally murdered those innocent persons listed in the charge; that this was an act permitted by their law which was superior to all laws but below them. It is, in other words, tantamount to saying, "We could make our law superior to all other laws and, by the instrumentality thereof, we could kill civilians."

Since the proclamations enacted by the P.M.A.C. emanated from a dictatorial regime, they not only implemented the will of this organ but they also violated the rule of law and the principles of contemporary criminal law. Although this much has been said about the "law" as "law", we are prepared to ascertain by evidence that there existed, behind these "laws", a systematic and organized killing machine which used blood as lubricant and which kept on whirling to kill civilian citizens.

Without having the slightest concern and without taking the slightest care for such dearest thing as life, orders signed while drinking tea and coffee have resulted in the arbitrary killing of tens and hundreds of innocent citizens; if the power to do so is said to have been given by a law, then that "law" can't be but a law of the jungle whose operation depended solely on the strength of the claws and teeth.

It is well known that elders and youths who, in full obedience to the law, gave themselves up, were thrown into prisons and kept under the custody of defendants in such condition that they couldn't pose any threat; they were finally taken out, with their hands chained, and executed in violation of due process of law on the mere accusation that they wrote the words "E.P.R.P. shall triumph" on a piece of paper allegedly found in their pockets. What is more saddening is that all this is done, it is said, in defence of the security and peace of the country.

About ninety-seven percent of the deceased mentioned in the S.P.O charge were illegally detained; they suffered bodily harm; they were weakened by hunger and disease; they were locked in prisons established by defendants; they were physically and mentally exhausted and, while on the verge of death, they were being watched by the defendants soldiers and finally executed. They were not killed, as alleged by counsels for defendants', in a measure the defendants took to maintain the peace and security of the country.

Since defendants used to say that they would control nature as well, in their opinion, neither God nor law and judgement could save the deceased; and only "revolution" as manifested in the whims and orders of defendants could determine the life or death of the deceased. Defendants had the lives of the deceased at their disposal; and what defendants are alleging now is that they had the power to take this life without law and judgment - a process repugnant to both international and domestic law, morality, culture, history, etc, and which is governed not by human civilization but, as mentioned earlier, by claws and teeth.

Defendants had all the human resource and property in their hand and under their command; they designed a systematic, wide and deep plan to destroy what they labelled as their opposers and implemented the same in disregard of due process of law and the rule of law - parameters of civilization which defendants opted out and threw into wastebasket as they couldn't rely on them to enforce their will - so that a comrade of theirs who kills a person he is allowed to kill could be free from responsibility; he could do whatever he wished with the corpse -to throw it away to hyena, to sell it or to charge the price of the bullet spent in killing the deceased.

Having organized the means which committed so barbaric an act which doesn't have any counterpart in the history of this country, and having furthered the same, defendants are now saying that they had the power to do what they did, something worse.

One thing that must be clear is that the way defendants opted for and the acts they did so as to remain in power might have enabled them to assert that they were victorious. The fact, however, is that this victory or supremacy wasn't the supremacy of law and civilization, but only a supremacy of brute force.

On this point, we would like to quote from the objection forwarded by Counsel for the 3rd and 26th defendants, page 28:

"Although international law scholars assert that the right to life of individuals is not protected by international law, this is so not because the criminal laws of sovereign states, as the Honourable Chief Special Prosecutor tried to convince, do not criminalize homicide; on the contrary, in every contemporary law of every sovereign state homicide is a punishable crime. The reason, however, is that the criminal law of a given sovereign state is not applicable to the Head of State. The scholars explain that the right to life of individuals, like that of nations, nationalities, tribes, etc, should be protected by international law; however, international law hasn't yet reached this stage. The charges instituted against my clients are therefore wrong and should be dismissed."

Basically, this argument does not have any legal, factual or moral ground. Since the coming into force of the various human rights conventions of the United Nations after 1919, other laws and international agreements have asserted that a head of State is subject to condemnation and accusation like any other human being. This being the case, the tenor of language that a penal law enacted by a sovereign state absolves the Head of State from criminal responsibility and that all the above-mentioned acts are committed in accordance and with pursuance to the law, is rather confusing.

Given the fact that the universal Declaration of Human Rights adopted on December 10, 1948 explicitly guaranteed the right to life, liberty and security of person, it is a similarly confusing assertion that international law does not ensure the protection of the right to life, liberty and security of person, it is a similarly confusing assertion that international law does not ensure the protection of the right of a person to life.

Even if it is to be argued that the problem is in rendering an effective means of protection of these rights, this argument does not also hold water. The real explanation for this may be found in the Geneva Convention which stipulates that crimes committed against life of a person, be it in time of war or peace, are liable to punishment. It is a well known fact that 113 countries have signed this convention until the end of 1994. Let's have a look at article 5:

Article 5

The contracting parties undertake in accordance with their respective constitution, the necessary legislation to give effect to the provisions of the present convention, and in particular to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.

As could be seen from the above provision, the convention imposes an obligation on the contracting parties to the effect that they incorporate the same to their respective constitutions and laws and ensure its application by a pertinent domestic court, when a perpetrator is so found. Aware of this and aware of the fact that Ethiopia is now discharging this responsibility, how could it be possible to say that the right to life of a person is not protected by law?

It is also known that there is a Geneva Convention which regulates the protection of the right of life of a person in time of war by providing for an effective mean of penalty.

By the same token, under our Penal Code, for example, there are provisions that stipulate murder as an offence and prescribe penalty in the event of its commission.

In the preliminary objection, there are two contradictory ideas forwarded by the counsel for the 3rd and 26th defendants. On the one had, there is an assertion that "A penal law enacted by a sovereign state is not applicable against the Head of State". On the other hand, he submitted a petition that Mengistu Haile Mariam be extradited and be presented before a court of law. What is the rationale and the legal background to demand the appearance of the Head of State before court to stand trial while opposingly arguing the a Head of State is not subject to criminal proceeding whatsoever? Although we fully concur with the idea of Mengistu's extradition, one could not get the rationale of such a paradoxical argument at any rate, because of the inconsistency in the ideas themseleves. We, therefore pray the court to reject the objection.

1.14 A Head of State is subject to condemnation and accusation; he is subject to a criminal proceeding and punishment in pursuance of the law and is liable to aggravated punishment. Here are historical instances.

AFRICA

Mali

After the fall of the dictatorial regime of Mali on March 26, 1991, the former president Musa Triori and 32 other government officials were charged and brought before the High court in Bamako on June 4, 1992 with a charge of aggravated homicide, causing serious bodily injury and with other similar offenses. They were alleged to have committed a massacre against 106 pro-democratic civilians between January and March of 1991. Musa Triori and four other ministers were sentenced to death by the High court after a verdict of guilt was entered. Their appeal to the Supreme Court was not accepted. The sentence is in tact and they are now in prison.

Malawi

The trial on a charge of murder against Dr. Kamuzu Banda, the life long president of Malawi, has been underway since April 24, 1995.

LATIN AMERICA

Argentina

On December 1 3, 1983, nine members of the military Junta who were ruling the country since March 1983 were charged with an alleged murder, infliction of bodily injury and other similar offenses, out of which 5 were sentenced to life imprisonment, two of them being ex-presidents of the country.

Bolivia

General Louis Garcia Meza Tayada, the former president of the Bolivian Republic and other high officials were charged for having committed various criminal acts including the crime of genocide in violation of the Bolivian Penal Code, as a result of which they were found guilty and penalized therefor.

At this point in time, it is interesting to note that Bolivia penalized the perpetrators of the crime of genocide using its own Penal Code and its own domestic courts. The fact that the victims of the crimes were members of clandestine political organizations, is an essential circumstantial concurrence with the presently ongoing trial in our country. Furthermore, the Bolivian Penal Code included matters which the Geneva convention did not deal with. Though the legally protected right in the genocide provision of the Bolivian Penal Code is not the destruction in whole or in part a certain group, there is a clear stipulation in the Penal Code that mass scale killing is a crime of genocide.

EUROPE

France

After the end of the 2nd world war, General PITE, Head of State of Vichi and his prime minister were charged, found guilty and penalized.

Greece

After the fall of the "Colonels' dictatorial regime" in 1974 in Greece, the President was penalized for the charge with which he was found guilty.

International Tribunals and decisions

Nuremberg

Twenty two government and party officials of Nazi were charged, found guilty and penalized therefor.

Tokyo

25 top government officials were penalized for the charge they were found guilty of.

This being the law and practice, it is an assertion so untenable and groundless that "this hearing is the first historical instance in the world where collective Heads of State are charged and brought before a court of law for the commission of similar offenses."

2. Concerning "the no punishment without law" point of objection.

The accused are charged for the crime they allegedly committed in violation of article 281, 286, 522, 538, 416 and 414 of the penal code. The accused have been engaged in the commission of the criminal acts since 1 974/75, (i.e. 17 years after the coming into force of the penal code). It has been pointed out previously that a head of State is justiceable and condemnable. The contention by the counsels of the defendants denying the existence of a law where the law actually exists is untenable. This objection should be dismissed.

3. On the point of objection concerning the transitional period and the charter as well.

There is no point of contention by the counsels of the defendants as regards the statehood of the transitional government. The Transitional Government of Ethiopia is an internationally recognized state and is also a member of the U.N.

It is an internationally recognized fact that the Transitional Government of Ethiopia is the State of Ethiopia.

Ethiopia, being a member of the U.N., is bound to respect the underlying international principles upheld by the charter of the U.N. One of these obligations includes the investigation of the massive human rights violations of the former Derg regime, bring them before the pertinent municipal court and ensure their proper prosecution and decision. Such competence emanates from the various effective international conventions, customary laws and from the domestic laws of the country as well.

Accepting the fact that the crime of genocide is a crime under international law, the contracting parties are known to have imposed an obligation upon themselves to prevent the crime of genocide and to punish in the event of its commission. Article 1 reads as follows:

Article 1

The contracting parties confirm that genocide, whether committed in time of peace or war, is a crime under international law which they undertake to prevent and to punish.

There are also conventions on torture, on apartheid and the four geneva conventions affirming this.

Art. 8 of the Transitional Period Charter reads as follows:

"The Transitional Government shall exercise all legal and political responsibility for the governance of Ethiopia until it hands over power to a government popularly elected on the basis of a new constitution."

In the circumstance where the fact is as plain as this, it is unfounded to allege that the Transitional Government has no power to extend the transitional period and to establish an institution that shall prosecute the human rights violators of the former regime.

It seems a day-dream to us to assert that the transitional government has no authority to prosecute the accused while at the same time alleging that the accused are immune from responsibility for the acts they committed while they were in power.

Since the charge filed by the Special Prosecutor Office has emanated from the power and duty of the Ethiopian Transitional Government to bring offenders before court in accordance with international and internal law objecting such a measure has no legal ground.

In reply to the contention that the court is not independent, impartial and incompetent for its establishment by EPRDF, we submit the following points.

We herein-above cited that the Ethiopian Transitional Government has the power to bring human rights violators of the former regime before a court of law. We have repeatedly stated that Ethiopia, beyond ratifying the genocide convention has incorporated it under her internal law. It has also been made clear that the Ethiopian Transitional Government has not only the power but also the duty to prosecute persons charged with genocide. Art. 6 of the genocide convention reads as follows:

Article 6

Persons charged with genocide or any of the other acts enumerated in Art. 3 shall be tried by a competent tribunal of the state in the territory of which the act was committed or by such international penal tribunal as may have jurisdiction in respect with those contracting parties which shall have accepted its jurisdiction.

What in actual effect the defence counsels are saying (very disappointing indeed) is that if the Transitional Government, in pursuance of this international law tried the accused before a domestic court, this would be "a justice of the winner." As though expressing loyalty to one's constitution were a wrongful act, we heard to be said that judges loyal to the Transitional period charter and appointed n accordance with the same are not independent.

When an accused is brought before court, there are procedurally permitted points on the basis of which he can challenge the competence of the court. For instance the case should be tried in a place where the offence was committed, the court has no local, personal, or material jurisdiction could be some of the points.

Out side of these, one may not challenge the independence of the court for we have no law or an established practice that accommodates such objection. Most of the present defence lawyers were in the past judges of court but we know that they were not only unwilling to entertain such objection but also very much irritated if such objection was raised before them.

Although it might be contempt of court to state that the court, which conducts its hearing in the presence of international observers, is not independent, that this court neutrally and patiently listened to such objection is a conclusive evidence to its independence. Whenever and wherever it may be, a court is a court of law and it should be accorded due respect. To the extent that genocide is no a political crime, a court room is not also a political forum.

The accused have argued that they shall be tried before an independent and impartial international tribunal and not before a national court. But they failed to show any binding law or an established practice on their side. On the other hand we have shown, by citing appropriate laws, that this government has an authority to bring their case to the attention of a national court.

The accused should understand from the outset that, in an open court where international observers are attending, one may not submit prefabricated evidences or conduct other improper proceedings. Thus, they should not feel insecure or try to evade a trial before their national court. However, it would be difficult and unacceptable if they try to evade the acts enumerated in the charge.

4. With respect to the allegation that the transitional period has resulted in additional hardship to the accused and the guilt of the accused has been determined in advance.

It was contended that the sole purpose of bringing the accused before a court is to satisfy the retributive attitude of few Ethiopians and foreign forces. But it should be underlined that there is no retributive attitude altogether. Making the accused stand trial in accordance with the law and in the presence of the international community would by no standard be a retributive attitude.

In Argentina when members of the former military junta were brought before court for their acts of human right violations, an old lady whose son was extrajudicially killed was called as a prosecution witness. After giving her testimony the presiding judge asked her whether she has something to say, she replied: "it would have been my wish had the accused brought my son before court. "Hence, the accused should have thanked for the fact that they were entitled to the right of trial in accordance with the law, which they denied to their victims. Therefore, their contention that they are made victims of retribution is unfounded.

Moreover, if there were a conviction to take revenge and to employ extra-judicial execution through a simple majority vote, the opportunity and the capability was at hand. Had this been the case, the defence lawyers, who are alleging that the final decision on the execution of the accused has been determined ( an allegation more of political speech rather than legal argument) wouldn't have saved themselves, leave alone their clients.

Reports on human rights issued by different organs of the UN, Country report of the US Department of state, NGO's such as Amnesty International and Africa watch including the Ethiopian people had expressly and unequivocally affirmed that the Derg-WPE regime was a violator of human rights. This being the fact, it was irrelevantly held that top officials of the Transitional Government have violated the right of the accused to be presumed innocent, when the President and Prime minister of the TGE expressed their views on general matters of the century-old Ethiopian history. To be presumed innocent is a right in favour of the accused and not to the whole DERG-WPE regime. The view expressed by the top officials of the TGE doesn't specify the name of any of the accused.

Moreover, it was alleged that since the TGE through its laws, has clearly categorized the DERG-WPE regime as criminal, it is impossible to contend. And this categorization, since it is published in the Negarit Gazeta, judicial notice should be taken by courts with no additional evidence. Admittedly, it is impossible to contend. But such impossibility emanates not from the categorization but because of the fact that the then committed act is impossible to rebut. It is rather the fact that gross human rights violations had been committed by the PMAC that should be judicially noticed.

5. With regard to the contention that the provision cited in the charge and the the law are not related

5.1 Art. 281 and a politically organised multi-national people or a political group

The Ethiopian penal code of 1957 was first drafted in French and in that draft a political group was clearly included. This shows that there was a conviction to incorporate a political group under the Ethiopian penal code in relation to crime of genocide. The English draft (i.e. Art. 293 ) which was identical with the French version, is in line with such assertion.

The UN General assembly in its resolution No. 96(1) had unanimously declared that:

"The General Assembly, therefore, affirms that genocide is a crime under international law which the civilized world condemns and for the commission of which principals and accomplices whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds are punishable."

One can easily ascertain that Art. 281 of the Ethiopian penal code is identical with this resolution of the UN.

As stated by Mr. B. White, who was then the rapporteur of the UN, the reason why political groups were not incorporated when the International Genocide Convention was ratified was, because of the strong protest by the delegation led by the Soviet Union against the protection of political groups under this convention.

"In support of the inclusion of political groups it was and is argued that it is logical and right for them to be treated like religious groups, a distinguishing mark of both types of groups being the common beliefs which unite their members. Specific example called from the recent history of Nazism prove that political groups are perfectly identifiable and given the persecution to which they were subjected in an age of ideological conflict, their protection is essential. During the debate the French representative presciently argued that "whereas in the past crimes of genocide had been committed on racial or religious grounds, it was clear that in the future they would be committed mainly on political grounds," and this view received strong support from other representatives. In an era of ideology, people are killed for ideological reasons. Many observers find difficulty in understanding why the principles underlying the convention should not be equally applicable in the case of mass killings intended to exterminate, for instance, communists or kulaks. In addition, in some cases of horrendous massacre it is not easy to determine which of overlapping political, economic, national, racial, ethnical or religious factors was the determinant one. To take two examples: Is the crime of apartheid primarily racial, political or economic? Or was the selective genocide in Burundi intrinsically political or ethnic in its intent? Most genocide has at least some political hinge and a considerable number of the Nazis' mass killings were political. It has been argued that leaving political and other groups beyond the purported protection of the convention offers a wide and dangerous loophole which permits any designated group to be exterminated, ostensibly under the excuse that this is for political reasons."

The UN genocide convention is an integral part of the International Human Rights law. Since International Human Rights law stipulates minimum standard that should serve as a guiding principle for further development and promotion of human rights and since international human rights is progressively developing through time, it permits wider protection of rights. For instance, Bolivia in its penal code under genocide incorporated massacre thereby extending the protected right. France, it its penal code, has also included any group arbitrarily selected by the offender under genocide thereby widening the protected right. Such measures are intended to further and promote human rights and should by no standard be condemned as unlawful, they should rather be encouraged for their contribution towards the promotion of human rights.

Be it the penal code of Ethiopia or the above mentioned penal codes, they shouldn't be held inconsistent with international law for they accord wider protection than the genocide convention. They are rather consistent with it because they are based on the principle that since international human rights law is a minimum standard, it is appropriate to wider the protection beyond the minimum.

The aforementioned arguments are meant to show the invalidity of the objection raised by the accused which stated that Art. 281 of the Ethiopian penal code is unconstitutional and void since it derogated from the 1955 constitution (a constitution which was suspended by the accused themselves). The fact that our penal code ever since its inception has been destined to protect political groups from genocide can be easily ascertained by examining Art. 275 of the draft French version, Art. 293 of the draft English version and the present Art. 281 of the penal code. Since the 1955 constitution and the 1957 penal code were adopted within a time gap of a year and since even at the draft stage the penal code has incorporated political groups as subjects of its protection, it clearly indicates that the legislature has deliberately included political groups and hence the objection of the accused should be dismissed.

With respect to the development and widening of the protection of human rights, George J. Andreopoulos has written that:

a consensus has emerged among students of genocide and among the leaders of international human rights groups a consensus urging protection of social and political groups by the UN convention and supporting further research on attempts to destroy such groups. The roots of the current consensus tap several sources:

The 1946 report of the UN's Ad Hoc Committee on Genocide which included political groups among the human groups to be protected in the convention,
The argument advanced in 1959 by the Dutch jurist Pieter N.Drost, assailing the exclusion of political and other groups from the UN definition of genocide,
The recommendations of the International Commission of Jurists in 1973 that the definition of genocide be expanded to include political groups,
The recommendations advanced in 1985 by Benjamin Whitaker, the UN , rapporteur on genocide, in his revised and updated report on the Question of the Prevention and Punishment of the Crime of Genocide,
And, in the same year, the publication of Leo Kuper's arguments on political mass murder in his book "The Prevention of Genocide."

Mr. Franklin F. Russell, former attorney general of the Eritrean government in 1955/56, in his article entitled "the New Ethiopian Penal Code" published in the American Journal of Comparative law, states that whenever the english and amharic versions of the Penal code are ambiguous, it is essential to resort to the french version of the Penal code although it hasn't been promulgated by the Negarit Gazeta.

Article 275 of the french version of the Penal Code clearly designates political groups as protected groups. In the second count in our criminal charge submitted to this court, we have clearly stated that the act of extermination was conducted against a multinational political section. There can be no basic difference between "political sections" and "political groups". The only difference is that the latter expresses the idea more coherently to mean members of difference political sections (organizations) with common political beliefs. Other than this, if defendants are trying to tell us that there have never been a political group duly registered or incorporated in the country, then, that can never be a legal justification or ground to annihilate any political group that doesn't follow the political creed of the regime, for no one may be executed neither for not having a kebele identification card nor for failure to produce a birth certificate from the municipality.

Counsel for the 36th defendant has stated, in his statement of objection against the charge, that members of the so-called political groups stated in the criminal charge such as E.P.R.P. and E.D.U were executed simply for their individual and personal criminal activities. They were not executed for being members of one of these so-called political groups because there has not been any political group legally registered. This is totally absurd. Defendants can, under no circumstance, claim carte-blanche authority over these innocent citizens. All the victims in our statement of charge were persons taking no active part in violence. They were all prison inmates arbitrarily executed by defendants. They weren't executed for their individual criminal activities. They were rather executed for their membership in one of the political groups. The Ethiopian People's Revolutionary Party (E.P.R.P) and the Ethiopian Democratic Union (E.D.U.) were political parties. Isn't it the common beliefs to create a democratic Ethiopia that united their members? Are they only groups of idlers? Even if they are, can they be arbitrarily executed?

The Supreme court of Bolivia had no hesitation in convicting the former president Garcia M. The court didn't consider "registration" or "legal personality" as a ground for designating political party. Truly speaking, one can't require the prosecution or the victims of the policy to prove whether there were political groups at all and whether it was political beliefs that united these people. It is enough on the part of the prosecution to produce killing-orders of defendants against these political groups. If, for example, a decision-giving defendant signed an order that a person alleged to be a member of E.P.R.P. be killed, this alone would be a sufficient evidence. It must be clear that it is the author of the criminal act himself that creates the connection between the political group he wants to destroy wholly or partially and the deceased or the victims of the criminal act.

As George J. Andreopoulos writes, and we quote:

"It is difficult, for example, to understand the persecution of the Ukrainians in the 1932-33 period without examining the contextual persecution of the "hostile peasantry" as enemies of collectivization in the late twenties and early thirties. And although the Ukraine and Ukrainian-speaking area of the North Caucasus bore the brunt of persecution during that period, they were by no means the exclusive targets. Other groups in the North Caucasus and the Lower Volga were equally victimized, groups who shared with the Ukrainians the generic label "enemies of Collectivization".

It is to be recalled that similar generic labels such as "anti-revolution, anti-cooperative farming and anti-production" existed during the Derg regime.

The other objection forwarded by counsels for defendants is that, particulars of the offenses stated in the charge is so ambiguous that it doesn't convey what should have been said not only to the defendants but to the prosecution as well; the charge also employs ambiguous statements like "with intent to destroy in whole or in part" failing to state what harm was done concretely. This is really an insult to the prosecution. But, we prefer not to give any vulgar reply before this tribunal and international observers.

In principle, the Geneva Convention and the Ethiopian Penal Code use terms like "with intent to destroy in whole or in part" when defining genocide and crimes against humanity. This is so because the criminal act directed to destroy these legally protected human collectivity could target the whole or the part thereof.

As Mr. Whitaker, the UN Special rapporteur on the question of genocide, states:

Genocide need not involve the destruction of a whole group. The relative proportionate scale of the actual or attempted destruction of a group, by any of the means listed in Article II and III of the Convention is certainly strong evidence to prove the necessary intent to destroy a group, in whole or in part. "In part" would seem to imply a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group such as its leadership. On the other hand, it has been urged that, given the mens rea of such intent, the convention should be interpreted as applying to cases of "individual genocide", where a single person was a victim of any of such acts.

Article 281 of the Ethiopian Penal Code is a combination of at least two types of criminal offenses, namely, genocide and crimes against humanity. One of the objections raised by the counsels for defendants is that the prosecution, in its criminal charge, has not clearly and unequivocally stated to which of the offenses the charge was referring. It is true that article 281 is an article that deals with two types of international criminal offenses. Since genocide is the worst of the offenses that can be committed against humanity, our charge refers to genocide.

5.2 Concerning the objection that articles 281 and 286 of the Penal code should not be cited together:

Article 286 is distinct from that of article 281. He who incites or encourages the commission of a crime of genocide under article 286 must be independently charged under the said article for the incitement and under article 281 for the actual commission of the crime of genocide. Since article 286 is an independent provision on its own which is not included under article 281, there is no reason why a person shouldn't be charged under both articles. The charge is therefore framed correctly. In congruity with our argument, Philippe Graven states as follows:

"...those who commit an offence in furtherance of a conspiracy are guilty of related offenses as defined in Art. 62/.../ and may be punished for this offence as well as for the conspiracy. Unless the conspiracy is an ingredient or an aggravating circumstance of the said offence."

5.3 Concerning the objection that the framing of the charge in the alternative by invoking articles 281 and 522 of the Penal Code is wrong :

Both aggravated homicide under article 522 and genocide under article 281 of the Penal Code criminalize offenses against life. The relationship between these two provisions emanates from the legally protected right. The right of everyone to life is clearly stated in article 3 of the Universal Declaration of Human Rights:

Everyone has the right to life, liberty and security of person.

It is the distinctive characteristics of international criminal law to categorize a single act into two or more provisions of law. The deliberate destruction of civilian population in time of war may constitute grave breaches penalized by the fourth Geneva Convention; it may also be a crime against humanity. This is a typical example one can see in the area.

The UN war commission, having analyzed the formulation of the Nuremberg charter, states that crimes against humanity can be categorized into two types; the murder type and the extermination of persons for membership in any one of the groups on racial, political or religions grounds. Article 6(c) of the Nuremberg charter is the legal source for the crime of genocide. The mens rea that must be established for the crime of genocide is the deliberate and systematic plan for the destruction of the protected groups in whole or in part. Aside from this, whoever with premeditation causes the death of a human being commits only aggravated homicide. In general, there is nothing wrong in framing the charge alternatively. It is upto the court, in the final analysis, to determine.

5.4 Concerning the objection that the citing of articles 32(1) (a) and (b) in conjunction with article 37(1) of the Penal code is erroneous

We have charged a number of defendants for different criminal acts. Their degree of participation in the commission of the offence varies as well. Some may have committed the act either directly as stated under article 32(1 )(a) and some indirectly as stated under article 32(1)(b). This is something the prosecution will have to prove in the future.

Under the Convention for the Prevention and Punishment of the Crime of Genocide, we have shown that conspiracy to commit genocide is a crime whether committed by Heads of State or responsible government officials. Even though article 281 of the Ethiopian Penal Code doesn't clearly designate conspiracy to commit genocide as a distinct crime, it was proper to cite article 37(1) in conjunction with article 281 of the Penal code to show how the defendants conspired towards the commission of the crime of genocide.

II. CONCERNING THE OBJECTIONS WE CATEGORIZED UNDER SECTION TWO:

The Office of the Special Prosecutor has considered the following objections to be objections that are in accordance with article 130(2) of the Criminal Procedure Code.

6. Concerning the objections that the charge has been barred by limitation

6.1 Non-applicability of statutory limitation to crimes against humanity

6.1.1 The UN General Assembly, in article 1 of its Resolution on the Non-applicability of Statutory limitation to war crimes and crimes against humanity, has clearly stated that these offenses are imprescriptible; it reads as follows:

Article 1

No statutory limitation shall apply to the following crimes irrespective of the date of their commission. /b/...and the crime of genocide as defined in the 1948 convention on the prevention and punishment of the crime of genocide even if such acts don't constitute a violation of the domestic law of the country in which they were committed.

The Proclamation for the establishment of the Office of the Special Prosecutor, procl. n°22/1992, and article 28 of the newly ratified constitution, in conformity with the international principle, clearly stipulate that no statutory limitation shall apply to crimes against humanity. This concept emanates from internationally recognized principles. Therefore, there can be no legal ground that would bar the charge on genocide instituted against defendants.

6.2 Statutory limitation is not an essential right of the accused:

6.2.1 Statute of limitation is not a fundamental right of the accused.

Philippe Graven concurs with the idea that period of limitation is not a human right; it doesn't constitute a right of the accused either and the fact that the statute of limitation is not observed doesn't in anyway hamper justice Philippe Graven elaborates the point as follows:

The point of departure, without any doubt, is that the statute of limitations is not an essential human right, and it isn't a right of the accused person or the convicted; it is not an imperative of justice, as consecrated in the institutions of civilized people; on the contrary, it is a practice of expedience, admitted in recent periods, a rule that is rejected by important legal systems, and discussed or criticized by those which admitted it.

6.3 Period of limitation, though not a substantive right, can not benefit the accused whatsoever

6.3.1 Criminal procedure code article 228/2/ states the following:

"The limitation period shall begin to run from the day on which the offender first exercised his criminal activity. If such activity was exercised on several separate occasions the period shall begin to run from the day on which the last act was performed ; if it was pursued over a period of time the period shall begin to run from the day on which it ceased."

Since the charges instituted by the special prosecutor office are criminal acts which were pursued over a period of time, (since the emergence of Derg in 1974 up to it is downfall) the law does not allow the charges to be barred by limitation.

6.3.2 Since the investigation in relation to the alleged offenses of the defendants commenced before two years, the limitation period has been interrupted according to article 230 of the penal code.

6.3.3 The Ethiopian people had suffered a gross Human rights violation during the Derg/WPE regime. It is a well memorable fact that since these violations were state sponsored and justified criminal acts, it was not possible for the victims to take their case to the court, and the court was not similarly at liberty to entertain such cases. As a result, the period of limitation has been interrupted pursuant to article 229/1/, which reads as follows:

Article 229 Suspension

1. Limitation shall be temporarily suspended as long as there subsists, in law or in fact a bar other than one due to the volition of the offender to the institution or continuation of the prosecution.

It shall also be suspended as long as other Judicial proceedings are pending against him.

Upon removal of the bar the period of limitation shall revive and continue its course.

In those dark days when the saving of ones life at any cost was the challenge of life than lodging complaints, when butchers/killers/designated as "comrades" were awarded medals for their engagement in summary execution, when it was easy to live blaming God than accusing today's defendants, to bar the case by limitation will be tantamount to justifying those acts as right.

6.3.4 Article 231, which is applicable when a period of limitation is suspended on the basis of article 229 envisages that, when situations indicated under article 229 arise, the limitation period shall start to run after a period equal to double the ordinary period of limitation has lapsed. If one says that the penal code articles 286, 414 and 416 invoked by the S.P.O charges are punishable with rigorous imprisonment not exceeding five years, the fact that the period of limitation for these offenses is ten years for the ordinary period according to article 226/2/ and double this period is 20 years, the charges can not be barred by limitation due to the reason that the period from the genesis of Derg by the accused up to its downfall was not twenty years.

Based on the laws and factual arguments I mentioned above, we request the court to decide in favour of our argument that the S.P.O charges would not be barred by limitation.

7. On the point of objection thafthe accused were not presented before a preliminary inquiry court"

Basically, in the commission of a massive and systematic crime involving the whole machinery of the state structure by thousands of perpetrators against thousands of victims, it is not difficult for one to realize that the process of presenting the accused before a preliminary inquiry court would delay the investigation process thereby affecting the right of the accused to a speedy trial.

Be this as it may, the court should reject the plea on the preliminary inquiry for the fact that it has once reached the stage of accepting and reading out of the charges.

8. Concerning the objection that "the identity of the accused is not accurately specified"

The identity of the defendants is clearly stated. Some specification on their identity is endorsed into the file of the court on account of the defendants' description. Every defendant, without an allegation to the contrary, has ascertained to the court of his name and address in the file.

We have heard in the course of the reading out of the charges by the court that some defendants have reservations in respect to their rank, that they were called by a lower rank than they actually hold. The S.P.O did not do this deliberately. The defendant alleges that "He is a Captain, and not a Lieutenant; that he is a General and not a Captain; that he is Major not a Lieutenant and he is a Lieutenant and not a private. "This is what discontented them. In our part, beyond and above the military ranks as privates, Lieutenants, Captains and Generals, we have recognized their being members of the highest state apparatus. Even if we did not deliberately state their name wrongly, we did not attach a high value to it. The fact of their membership into the congress and other committees of the P.M.A.C or government being the most important issue, we have procured their military rank in the present charge from the documents available from the Derg's time. Their ranks at the period of joining the Derg is not lowered.

What is not known to us is the degree of rank the accused attained in the subsequent years as they started to be called by others and calling each other as "Comrades", giving away the adjectives of the military ranks.

We, however, earnestly admit that the defendants should not be reduced in rank without a court order and we do not object if they are called by the ranks they allege to have.

9. Concerning the plea that "the crime committed under the guise of the court" is not clear.

As regards the mention in the counts that crime was committed fraudulently in the name of courts, it is clear from the charge who the perpetrators and the victims of the crime are, the period of the commission of the crime and finally that the crime was committed under the guise of court of law. The rest is to be proved by evidence in due course. Thus this objection has to be dismissed.

10. Concerning the plea that " the framing of the charge is not clear"

10.1 On the fact of the charge being clear

The purpose of a charge is to enable the accused to know exactly what charge he has to answer, and is not to provide him with every pieces of evidence that will be produced in the course of the hearing. Let's see articles 111/2/ and 112 of the criminal procedure code.

Article 111 contents and form of the charge

2. The charge shall be in the form set out in the second schedule to this code or shall conform thereto as nearly as may be.

Article 112 Description of circumstances

Each charge shall describe the offence and its circumstances so as to enable the accused to know exactly what charge he has to answer. Such description shall follow as closely as may be the words of the law creating the offence, /emphasis added/

As could be understood from the above, there is no law to the effect that the content, form and description of circumstances in the charge has to concur hundred percent with a certain format or any stipulation that the charge shall be voidable if framed otherwise. The law only requires the charge to be not absolutely, but fairly descriptive.

One can see that the charges of the S.P.O are better framed and more descriptive beyond the requirement of the law itself. Every count contains the identity of the accused, the main ingredients of the crime, the time and place of commission of the crime and not only in the appropriate but in every part, the person against whom the crime was committed. Time is described in every count and to the extent possible, 90% of the place of the commission of the crime is also specified. Even if there are some places left undescribed, since these could be introduced in the latter stage of the hearing through evidence, this could not be a ground to render the charges ineffective.

Therefore, we pray the court to rule against the plea.

10.2 The plea by the counsels of the defendants that "the charge is misleading and sensational" is by itself meant to mislead and to evade the charge.

The crime of genocide is the most atrocious and severe of all crimes against humanity aimed at destroying human beings. As the defendants would not normally want to be associated with such a horrible crime, they avoid it. They don't want to be referred as perpetrators of such a crime. Since they want to arise a misconception in the meaning of the term, they claim that the charge is misleading.

Committing acts which resulted in the death of thousands of innocent people, acts where two hundred and nine separate offence were perpetrated, acts which contravened international conventions that were respected by states for more than 50 years and finally committing acts violating the domestic laws governing the said offences, would not be considered a simple matter by the defendants whatsoever.

According to the opinion of the counsel for the 36th and 65th defendants, the charge is prepared in such a manner as to attract attention and arouse emotion so as to neutralize the right of the accused to be presumed innocent. He assumes that if one is charged with a crime of genocide, then one's right to be presumed innocent will be automatically eroded. This assumption is errornous by itself. This is because of the reason that presumption of innocence is a right as to the guilt of an accused and not an immunity from being charged.

The focus of public attention in both the national and international arena cannot be procured by filing a given charge and by giving the same title as provided by law. What was rather a focus of attention for the national and international community is the act of killing thousands of youngsters and throwing them on the streets, selling their corpses and throwing them to hyenas. Those acts in the past seventeen years made the world not only feel sorry but also weep. It is not the compilation of the charges or its title that is shocking. The S.P.O does not strive to publicize what is obviously known.

The rationale behind the plea that the S.P.O charges are misleading is to create the errornous impression that the crime of genocide is not committed.

10.3 Concerning the plea that "while subsections 1,2 and 3 should have been part and parcel of section 1 dealing with genocide and crimes against humanity, it is wrong that it is prepared as subsections of the 2nd charge, which in effect, renders the framing of the charge vague and misleading."

It is clear that the charge on the crime of genocide has been framed as the 2nd charge in such a way as to contain 209 counts. These 209 counts are acts constituting the crimes against humanity as mentioned in the 2nd charge.

The harm caused on the victim, when seen in relation to and in light of article 281, constitute the 171 counts on murder mentioned under sub section one and are similar, together with their effects, with the wording of article 281/A. The counts mentioned from 1 72-174 in sub-section 2, being acts of causing bodily injury, are similar, together with their effects, with the wording of article 281/A/. The counts mentioned from 175-207 in sub section 3, being acts of placing under living conditions calculated to result, with the intention of destroying members of political group in whole, in their death, are similar together with their effects, with the wording of article 281 Id. Accordingly, a total of 209 counts are all framed in one.

The reason which dictated the framing of the charge into three different subsections is that, even though there are 209 counts constituting the crime of genocide, all the counts are not in respect to murder or infliction of bodily harm or disappearance. Therefore, it was imperative to state the different circumstances and the effects of the acts in an explicit manner.

As section one is a section and not a charge, the subsections indicating this charge would fall under the second charge of section one and not under section one in general.

As could clearly be observed from the framing of the charges, it is prepared alternatively. The crimes against humanity and that of genocide is the main charge while the counts on aggravated homicide and serious bodily injury are the alternative ones. Since the crime of genocide against humanity is the main charge, it has been framed accordingly. So is the title. There are two spheres of investigation that the S.P.O undertakes. The first is the present one dealing with the crime of genocide and the second dealing with war crimes. We have referred the first one as part one and the second part two. This charge is the 1st part. As though it were not possible for the S.P.O to talk of part I without taking about part II, as though it were not possible to divide on thing into two parts, the plea by the counsels that one cannot talk of part I without part II, is more of a mockery. As explained above, the 209 counts are described in the 2nd charge under three different subsections in order to signify the difference in the manner of their execution, intention and effects thereof. Since the crime of genocide was committed with the intention to wholly or partly destroy members of a given political group and since all the subsequent counts show the same act of genocide, all are included in one. Article 286 of the penal code is invoked in the first charge because it was violated in the course of commission of the act provided under art. 281. Hence, it is contained under section one dealing with the crime of genocide. As a result, there are two charges with regard to crimes of genocide, the first and the second charge where articles 286 and 281 were invoked.

On the other hand, the counts framed under article 522 and 538 of the penal code are committed intentionally; especially, an offence under article 522 is committed intentionally, with premeditation and in a manner which shows exceptional cruelty. Accordingly, out of the 209 acts included in the second count under article 281 of the penal code, the acts enumerated from 1-171 have been reframed in the alternative as independent counts under article 522 of the penal code, while those enumerated from 172-174 have been similarly reframed as independent counts under article 538 of the penal code. Although the acts enumerated from 175-209, acts committed with intent to destroy wholly members of a political group by placing them under confinement in such conditions calculated to result in their death or to inflict social harm upon them, have already been charged as crime of genocide under art 281/c, since the final outcome of the illegal act is death, the acts have been reframed in the alternative under article 522 of the penal code. Since a common evidence is to be submitted against all, and in order to follow a clear and consistent approach, the sections and sub-sections of the main and alternative charges and the number for each act or count have been retained and arranged from 1-209.

Since counts 210 and 211 aren't part of the main charge, they don't appear as main or alternative charges. Hence, they have been framed as independent counts. To maintain clarity, they aren't given any section.

In this vast and complex case which, we all agree we have no experience on, and which is the first of its kind in our country, how can one write a charge clearer than this?

11. Concerning the Plea for Separate Trial

Basically, defendants are charged for the crime of genocide and crimes against humanity. They all held similar official positions, they are charged for the commission of the same crime and a common (similar) evidence will be submitted against them all.

If a separate trial is granted, it will first of all delay the whole proceeding and secondly victimized witnesses may not be willing to testify before different benches on the same subject thereby narrating, repeatedly, their past suffering and agony.

In addition, if the different benches give different decisions on one and similar cases, this would obviously be of no use for the purpose of justice. We therefore pray the court for a ruling against any separate trial.

Clarification

1. The counts from 18-211 are instituted against the first twelve defendants. This has already been mentioned in page 19 of the charge under "B".

2. Counts 1-17 and counts 210 and 211 are brought against the remaining defendants.

3. The phrase, especially all defendants, which appears in counts 1 59, 181 and 1 82 of the charge shall be cancelled out.

4. The phrase July 16 (Hamle 9) in count three of the charge shall be cancelled out.

5. There has been an objection that counts 210 and 211 don't specify the names of the victims and the list of property allegedly confiscated by defendants.

In principle, this objection doesn't constitute a sufficient ground to dismiss the charge. However, if this Honourable court finds it necessary and gives an order to that effect, we are ready to come up with the necessary details.

Conclusion

We have made it clear that the objections forwarded by counsels for defendants are not in conformity with the law and aren't supported by law, whereas the charge has been prepared in full conformity with all the requirements of the criminal procedure code. Accordingly, we request the court to reject the objections.

Counsels for defendants have said, "Whatever we may do, we can never get the deceased alive; hence, national reconciliation should be held. Unless it is desired to quench the thirst of some Ethiopians and foreign forces for vengeance, a government decision which focuses on tolerance and reconciliation is a better alternative". We want to make it clear, however, that this assertion is wrong and inherently defective in that:

1. It infringes upon the rights of victims;

2. It attempts to hide the offence and the offenders so that the truth would remain blurred;

3. It is forwarded unduly and out of context.

Victims of human rights violations and their families have the right to see their sufferings adjudicated and the offenders punished. Not a single defense counsel has however considered this right. What is being said is "the dead is dead".

Neither the Transitional Government of Ethiopia nor any other party has the power to call for national reconciliation and thereby grant amnesty or pardon in relation to war crimes and crimes against humanity. This right resides in the victims. However, neither the defendants nor their counsels seem to have considered this.

Ever since the establishment of the Transitional Government of Ethiopia and later on, an investigating organ and a court so as to bring to justice former officials who had committed crimes violating human rights, thousands of victims, both at the center and in the regions, have been organized into anti-Red Terror Committees and persistently struggling for their rights.

No one can submit the suffering and rights of these victims for negotiation. What the Transitional Governments of Ethiopia did, as a government, is to establish an investigating organ and an independent court so as to discharged its international legal and moral obligation. Whatever right that remains belongs to the victims.

To leave this aside and preach for reconciliation and forgiveness would mean that the atrocities be kept secret from the International Community and the Ethiopian people, and the offenders be not brought before justice, which is quite unjust in itself.

The reasons for the existence of the special prosecutor and the court in this case being the victims, any attempts to lessen the atrocities and give them a political cover-up by making the Transitional Government of Ethiopia the major party in the case wouldn't take anywhere. The witnesses who would testify before this court about the death of their children and the bodily injury they suffered are wailing victims of the criminal act and not the leaders of the Transitional Government. The fact that it is desired to confuse the whole thing up doesn't make any difference in the proceeding.

As we have mentioned earlier, when a given dictatorial regime is overthrown, it is a common practice to investigate crimes of human rights violations committed during that regime and bring the perpetrators to justice; this is not a new experience imposed only on these defendants, and it is not a new creation either. Hence it must be clear that there is not a single Ethiopian who wishes to take vengeance against defendants except to see them stand trial.

Those referred to as "foreign forces" also don't have any hidden idea except to ascertain that perpetrators of war crimes and violations of human rights undergo a speedy investigation and stand trial before an independent and impartial tribunal. The support or assistance to the Special Prosecutors Office is extended with a view to speed up the whole process so that defendants could have their case determined in due time; it is not intended to harm anyone.

It was a popular belief that the defendants' government would, at a certain time, be held responsible for the gross violation of human rights it committed during its reign. Now, the opportunity has been found and the popular belief is being implemented without there being any room for vengeance.

All other things may, irrespective of the emotional reaction, be tolerated and abandoned. It is, however, a well established custom and belief that war crimes and crimes against humanity are not subject to amnesty and aren't barred by limitation. In a press conference given on May 28, 1991 at the conclusion of the London Conference, Mr. Herman Kohen had stated that the above mentioned crimes are subject neither to amnesty nor to pardon. It is also recalled that he had suggested the trial to be conducted in conformity with due process of law and in the presence of international observers. This decision has been, starting from the London Conference, the decision of E.P.R.D.F and later on of the Transitional Government of Ethiopia, and we quote:

The Transitional Government should consider an appropriate amnesty or indemnity for past acts not constituting violations of the laws of war or international human rights. Any person accused of such offence should be afforded due process of law in accordance with international norms, and all procedures should be open to observers from internationally recognized organizations.

And what is being done now is the same.

23May95 - ETH

Reply submitted by the Special Prosecutor in response to the objections filed by the counsels for the defendants in the case of Col. Mengistu Haile Mariam et al.

[Source: National Implementation of IHL, International Committee of the Red Cross]

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