Uitspraak Nº 09/748013.12 (engelse versie). Rechtbank Den Haag, 2017-12-15

• ECLI: ECLI:NL:RBDHA:2017:16383
• Date: 15 Diciembre 2017
• Docket Number: 09/748013.12 (engelse versie)
• Court: Rechtbank Den Haag (Neederland)

DISTRICT COURT OF THE HAGUE

Criminal law

Multiple judge panel of the Criminal Court responsible for cases concerning international crimes

Public Prosecutor's office number: 09/748013-12

Date judgment: 15 December 2017

Defended action

(Promis judgment) 1

Based on the indictment and the examination in court the District Court of The Hague has delivered the following judgment in the case of the Prosecutor against the accused:

[judgment according to the project for improved statement of grounds in criminal judgments]

[Eshetu A.],

born in [place of birth] on [day of birth] 1954,

residing at [city],

currently detained in the penitentiary institution "Krimpen aan den IJssel" in Krimpen aan den IJssel, the Netherlands.

Name of the investigation: Merens

Structure of the judgment

The judgment is structured as follows:

1. Introduction

1.1 Preamble

1.2 The Ethiopian calendar

1.3 The spelling of names

1.4 References

1.5 Use of the English language

2. The charges

3. The investigation

3.1 The criminal investigation

3.2 The investigation by the examining magistrate

3.3 The trial

4. The admissibility of the Prosecution Service

4.1 Introduction

4.2 The position of the Prosecution Service

4.3 The opinion of the court

5. The applicable law

6. The history of Ethiopia

7. The existence and the nature of the conflict

7.1 Introduction 7.2 The position of the Prosecution Service

7.3 The position of the Defence

7.4 The frame of reference

7.5 The nature of the conflict in Ethiopia

7.5.1 The EPRP and the State

7.5.2 Different warring factions and the State

7.5.3 The knowledge of the armed conflict

8. The witness statements

8.1 Introduction

8.2 The position of the Prosecution Service

8.3 The position of the Defence

8.4 The reliability of the witness statements

8.4.1 The frame of reference

8.4.2 The reliability of the witness statements in this case

8.5 The witness statements

8.6 The requests to hear witnesses

9. The documents in writing and the expert reports

9.1 Introduction

9.2 The position of the Prosecution Service

9.3 The position of the Defence

9.4 The case documents

9.4.1 The written documents

9.4.2 The expert reports and the examination of the experts

10. Establishing the actual events

10.1 Introduction

10.2 Establishing the actual events

11. Protected persons

11.1 Introduction

11.2 The position of the Prosecution Service

11.3 The position of the Defence

11.4 The opinion of the court

12. Violations of the international humanitarian right

12.1 Introduction

12.2 The position of the Prosecution Service

12.3 The position of the Defence

12.4 The frame of reference

12.4.1 Regarding the charges under count 1 and 4 of the indictment

12.4.2 Regarding the charges under count 2 of the indictment

12.4.3 Regarding the charges under count 3 of the indictment

12.5 Violations of international humanitarian right in this case

12.5.1 Regarding the charges under count 1 and 4 of the indictment

12.5.2 Regarding the charges under count 2 of the indictment

12.5.3 Regarding the charges under count 3 of the indictment

13. The determination of the role of the accused

13.1 Introduction

13.2 The position of the Prosecution Service

13.3 The position of the Defence

13.4 The actual determination of the role of the accused

13.5 The qualification of the role of the accused

13.5.1 The frame of reference for co-perpetration,

complicity and incitement

13.5.2 The frame of reference for responsibility as a superior

13.5.3 Participation and liability in this case

14. The nexus

14.1 Introduction

14.2 The position of the Prosecution Service

14.3 The position of the Defence

14.4 The frame of reference

14.5 The nexus in this case

15. Violation of the 'WOS'

16. The (partial) acquittals

17. The judicial finding of facts

18. The criminality of the facts stated as proven

19. The criminal responsibility of the accused

20. The passing of the sentence

20.1 The demand of the Prosecution Service

20.2 The position of the Defence

20.3 The judgment of the Court

21. The claims of the injured parties

21.1 Introduction

21.2 The competence of the Court to judge the claims

21.3 The assessment of the claims

22. The applicable articles of law

23. The decision

Attachment 1: The indictment

Attachment 2: The requests to hear witnesses.

Attachment 3: The finding of facts

Attachment 4: The endnotes (literature & case law)

1 Introduction

1.1

Preamble

The accused stands trial for involvement in war crimes, committed in Ethiopia during the period from 1 February 1978 up and until 31 December 1981. War crimes are serious infringements of the humanitarian law of war, which sets out a minimum standard for the treatment of protected persons, to be observed by each of the factions involved in an armed conflict. In this context it does not matter which faction should be labelled as the aggressor in the conflict and it also irrelevant whether the opposite faction has respected the rules of the humanitarian law of war. Any person committing a serious violation of the humanitarian law of war can be criminally prosecuted for this, regardless of the side on which he fought.

The fact that the accused was a member of the Derg, later renamed the Provisional Military Administrative Council (hereafter: PMAC), was not up for discussion during the trial. Neither was the existence disputed, of (armed) resistance against the Derg from numerous groups during that period. During the examination in court the accused has brought up a lot about the horrors, the backgrounds and the complexity of the conflict in Ethiopia during that period and the violence he says the Derg were faced with. However in this criminal case the Court will only pass a judgment on the question whether or not the accused can be found guilty of the serious violations of humanitarian law of war mentioned in the indictment and, if so, what would be the eventual punishment he deserves for this. However the Court will explicitly not express an opinion on the question which of the factions should go down in history as the one who had the right on their side.

1.2

The Ethiopian calendar

Ethiopia uses a calendar based on the Coptic calendar, while the western world uses a Gregorian calendar. The Coptic calendar had twelve months of thirty days and a thirteenth month of five or six days, depending on the fact if the year in question is a leap year. Because of the use of these different calendars there is a difference of seven or eight years in which the Gregorian calendar is ahead of the Coptic one. Under the Coptic calendar the New Year starts on the first of September, while this happens on the 11th of September under the Gregorian calendar.

The thirteen Ethiopian months have the following names:

Meskerem (11 September up to 10 October)

Tikimt (11 October up to 9 November)

Hidar (10 November up to l 9 December)

Tahsas (10 December up to 8 January)

Tir (9 January up to 7 February)

Yekatit (8 February up to 9 March)

Megabit (10 March up to 8 April)

Miyazia (9 April up to 8 May)

Ghinbot (9 May up to 7 June)

Sene (8 June up to 7 July)

Hamle (8 July up to 6 August)

Nehassie (7 August up to 5 September)

Pagume (6 September up to 10 September, eventual leap year)

From Meskerem 1 until Tahsas 22 (11 September up to 31 December) the difference is seven years. From Tahsas 23 up to Pagume 5 or 6 (1 January up to 10 September) the difference is eight years. During a leap year the date of 29 February appears in the Gregorian calendar. This coincides under the Gregorian calendar with Yekatit 22. The date 1 March then becomes Yekatit 23. All days under the Coptic calendar move one day until Pagume 6 is reached.

Whenever the dates mentioned in the present judgment are under the Ethiopian calendar this is indicated behind the date (E).

1.3

The spelling of names

There are a lot of names mentioned in the file. These are Ethiopian names which where originally written in the Amharic language. The Court wants to emphasize that in case of a translation of names from one spelling into the other (as in the present case from Amharic into Dutch) the spelling of the names will necessarily be phonetic. The Court has established that some of the names in the Dutch translation of the name lists, are spelled in different ways in the case-file (for example [person 322] and [person 322, different spelling]) and also that this spelling is sometimes not the same as the spelling used in the witness statements, although the witness does say that he or she recognises the names. For every discrepancy the Court has assessed if this discrepancy can be accounted for by the translation or if there is doubt whether the different spelling actually refers to the same person. For every indication in the judgment that a certain person was mentioned or recognised, the Court has made this assessment and found that the sound of the name was so similar that the discrepancy in spelling could be accounted for by the translation.

1.4

References

In this judgment reference will be made to statements during the hearing in court, official reports and other documents in writing. This reference will be made in the...