Eshetu Alemu

Court	The Court of Appeal in The Hague, The Netherlands
Case number	ECLI:NL:GHDHA:2022:1674, 2200550317v
Decision title	Judgment
Decision date	8 June 2022
Parties	Public Prosecutor's Office Eshetu Alemu
Categories	Torture, War crimes
Links	Judgment in the case of Eshetu Alemu (The Court of Appeal in The Hague)
Other countries involved	Ethiopia

Summary

In the 1970s, the “Derg” military government took over the state power in Ethiopia. This “Red Terror” regime included a violent crackdown on rebel groups and other political opponents, including the Ethiopian Peoples Revolution Party (EPRP), with whom the Derg was engaged in a non-international armed conflict. In an effort to eradicate the EPRP, the accused Eshetu Alemu, the sole representative of the Derg in the Gojjam region, ordered the unlawful arrest of around 300 alleged party members. They were detained in cruel and inhumane conditions and subjected to torture and killings.

The Court of Appeal established that Alemu knew and participated in these war crimes and sentenced him to life imprisonment, upholding the verdict of the District Court of The Hague in 2017.

The investigation and prosecution of these crimes began after an investigative journalist published an article about the defendant in 1998. He had been living in the Netherlands, holding Dutch nationality at that point and had not been held accountable for the atrocities.

Procedural history

1998 - A news article was published in the magazine “Vrij Nederland”, linking the accused who was quietly living in the Netherlands, to war crimes that took place under the Derg regime from 1974-1991 in Ethiopia.

8 May 2000 - In Ethiopia the accused was sentenced to death in absentia.

2009 – 2013 - The International Crimes Team (TIM) of the National Investigative Service started the investigation prompted by the article. The investigation included contact with the journalist and access to documents from Ethiopia, including copies of the criminal file of the accused and evidence of 10 criminal cases.

29 September 2015 – The accused was arrested at his home in the Netherlands and taken into pre-trial detention.

End of 2015 – The Examining Magistrate heard witnesses, and experts analysed handwriting and gave insights into the historical context in Ethiopia.

15 December 2017 - The District Court of The Hague sentenced the accused to life imprisonment and granted a request for an appeal to both the accused and the Public Prosecutor.

April – November 2018 – Hearings of three witnesses on appeal and renewed comparative analyses of handwriting took place during the proceedings. New documents were received from Ethiopia.

Legally relevant facts

In September 1976, the then (military) government in Ethiopia (the Derg) declared the EPRP (Ethiopian People’s Revolutionary Party) an enemy of the revolution (para. 13.1.4). As from that moment, thousands of EPRP members and sympathisers were imprisoned and executed by the Derg. (ibid.). The extreme violence used by the Derg against the EPRP (and others) is known as the Red Terror (ibid.).

In the period referred to the indictment (different periods from 1 February 1978 up to and including 31 December 1981), there was a non-international armed conflict taking place in Ethiopia between the Derg and the EPRP (ibid.).

The defendant was the sole representative of the Derg in the Gojjam region in 1978 (para.13.2). After he called for an “exposure meeting”, the purpose of which was to expose EPRP members, 300 people were deported to an unsanitary military camp. The prisoners had to attend indoctrination meetings but were promised to be let go after a week of “political orientation”. However, after about ten days, the regime became considerably stricter and the prisoners were sent to a police camp about ten kilometres away, where their punishment was decided depending on their role in the EPRP. Detainees were tortured and killed (para. 13.3.1).

The detainees were then transferred to the regional prison, where they were subject to inhumane conditions. Twenty high-ranking party members were sentenced to death without due process and shot. Other members were killed for trying to escape the prison or beaten and strangled (para. 13.3.1).

Core legal questions

Questions by the defence on appeal, answered by the Court: Whether a fair trial is no longer possible within the meaning of Article 6 ECHR as (1) the start of the investigation was not properly reported and was done so in a manner contrary to the duty to report; (2) neither original documents nor a complete criminal file had been obtained from Ethiopia; (3) important witnesses could not be heard, and (4) the passage of time has placed irreparable limitations on the process of establishing the truth.
Questions discussed by the Court of Appeal: Whether the actions of the accused constitute a violation of Common Article 3 Geneva Conventions.

Specific legal rules and provisions

Article 3, Article 8, and Article 9 of the Wet Oorlogsstrafrecht (WOS) (War Crimes Act).

Common Article 3, The Geneva Conventions.

Court's holding and analysis

Contrary to the argumentation of the defence, the Court of Appeal found no infringement of Article 6 ECHR as the defence was able to put an adequate defence forward (para. 10.4.).

The Court of Appeal found Common Article 3 of the Geneva Conventions to be applicable, as in the period referred to in the indictment there was a non-international armed conflict taking place between the Derg and the EPRP (para. 13.1.4).

The Court of Appeal found the defendant guilty of co-perpetrating arbitrary deprivation of liberty, the pronouncement and enforcement of judgements without a fair trial, the cruel and inhuman treatment, and attacks upon personal dignity, torture as well as the killing of a large number of persons.

The Court of Appeal finally established that there was nexus between the conduct of the defendant in his role as a Derg representative and the armed conflict in Ethiopia, at that time(para. 13.7). The Court of Appeal sentenced the defendant to life imprisonment for committing the war crimes outlined above (para. 18).

Instruments cited

Wet Oorlogsstrafrecht (War Crimes Act), the Netherlands, 1 October 2003.

Geneva Conventions of 12 August 1949

Related cases

Netherlands Supreme Court, Criminal Division, Knesevic decision of 11 November 1997, LJN ZD0857, NJ 1998, 463, with commentary ‘tH and HR [Supreme Court] 8 July 2008, ECLI:NL:HR:2008:BC7418 (Jurisdiction).