By Dibaba, T.K. Amele
Human Rights and International Law Expert

EthiopiansFor a very long time, Ethiopians have been enduring an unbearable oppression and sufferings persecution at the hands of the many brutal Ethiopian regimes.  Throughout their history, Ethiopians have been very passive and patient with all of rulers of the country due to their culture of deference.  They have put up with an imaginable suffering by their own countryman who ruled over them throughout their history.

Ethiopians are very polite people and tolerant of their rulers throughout their history.  The paradox is that Ethiopians have never tolerated foreign invaders and colonialists in their history.  On numerous occasions when they faced foreign invaders they stood together and defended their independence.  But, they have been polite and tolerant of their own countrymen who ruled over them with Iron fists.  Many autocratic, totalitarian and ruthless dictators have been robbing, torturing, killing and imprisoning their own people without mercy throughout the period.

No ruler has ever ruled Ethiopia in a humane and just way.  They treated Ethiopian people as an enemy.  They rulers have been punishing their own people through starvation, impoverishment, castration, torture, imprisonment and killing mercilessly.  All rulers of Ethiopia in the past and at present are culpable for the crimes of genocide, ethnic cleansing, looting the nation’s wealth, extrajudicial killing, arbitrary imprisonment, torture and inhuman and degrading treatments which are prohibited by the international laws.

International law is very clear and unambiguous when it comes to international crimes.  They are, crimes against humanity, genocide, ethnic cleansing, extrajudicial killing and torture.  Crimes against humanity and genocide are two distinct concepts. They became part of international law in the mid-1940s, after the end of World War II, and really around the time of the Nuremburg trials. They were new concepts — they are relatively recent in that sense.  As I have already stated, there is however, a clear distinction between crimes against humanity and genocide.

The basic difference between crimes against humanity and genocide is as follows: Crimes against humanity focuses on the killing of large numbers of individuals. The systematic, mass killing of a very large number of individuals will constitute a crime against humanity. Genocide has a different focus. Genocide focuses not on the killing of individuals, but on the destruction of groups. In other words, a large number of individuals who form part of a single group. And the two concepts in this way have different objectives. One aims at protecting the individual; the other aims at protecting the group.  For instance, in international law, torture is absolutely prohibited.

The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was Adopted on 10 December 1984 and entered into force 26 June 1987.

The Convention against torture is the most comprehensive international treaty dealing with torture.  The Committee against torture monitors its implementation by States.

  1. The convention against torture sets out a definition of torture

Article I of the UN Convention defines torture:

“Torture means any act by which severe pain or suffering, whether physical or mental, is internationally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  It does not include pain or suffering arising only from, inherent in or incidental to lawful sanction.”

This definition contains three cumulative elements:

      1. The intentional infliction of severe mental or physical suffering
      2. By a public official, who is directly or indirectly involved
      3. For a specific purpose
  1. The Convention against torture obliges the States to take preventive measures

According to article II of the Convention, each State Party has an obligation to take all necessary measures to prevent acts of torture.  This includes legislative, administrative, and judicial measures, as well as any other measures that may be appropriate.  States are also obliged to prevent other cruel, inhuman or degrading treatment or punishment in article sixteen.

  1. There is no justification for torture – ever.

Article 2.2 of the Convention states that “no exceptional circumstances whatsoever” can justify torture.  This includes war or the threat of war, political instability, combating terrorism or any other emergency.  Orders from a superior officer are also not justification for torture.

  1. Non-Refoulement

Furthermore, article 3 of the Convention sets out the principle of non-refoulement, which requires States to not expel, return or extradite a person to another State if there are “substantial grounds” for believing that the person would be in danger of being subjected to torture.

  1. Specific Crime of Torture

Article 4 of the Convention requires each State Party to ensure that torture is included as a specific crime in their national criminal law.  The Committee against Torture requires that State parties use, as a minimum, the definition of torture included in Article 1 of the Convention.

  1. Universal Jurisdiction

The Convention obliges each state party to establish its jurisdiction over persons found in its territory who are alleged to have committed the crime of torture, irrespective of whether the crime was committed outside its borders and regardless of the alleged perpetrator’s nationality, country of residence or absence of any other relationship with the country (article 5-9).  If the state is unable to prosecute the offence, it is required to extradite the alleged perpetrator or a State which is able and willing to prosecute such a crime.  This principle of universal jurisdiction constitutes one of the most important aspects of the Convention.

  1. Training Officials

Article 10 of the Convention requires State parties to take steps to ensure that all law enforcement personnel, medical personnel, public officials and others involved in the deprivation of liberty receive education and information on the prohibition and prevention of torture

  1. Review of Detention Procedures

Under article 11 of the Convention, States parties are required to keep under systematic review interrogation rules, instructions, methods and practices, as well as custody procedures.  These should comply with the United Nations Standard rules for the Treatment of Prisoners and the United Nations body of Principles for the Protection of All Persons under Any form of Detention or Imprisonment.

  1. Prompt Investigation

According to article 12 of the Convention, each State Party must establish prompt and impartial investigations whenever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.  This means that, even in the absence of a formal complaint, the relevant authorities must undertake an impartial, effective, independent and thorough investigation as soon as they receive information indicating any instance of torture or ill-treatment.

  1. Rights of Victims to Complain and Obtain Redress

The Convention provides that victims of torture have the right to complain and to have their case investigated promptly and impartially (article13), as well as to receive redress and adequate compensation (article14).  This also includes the right to rehabilitation that is as full as possible.

  1. Inadmissible Evidence

According to article 15 of the Convention, any statements gathered as a result of torture must be deemed inadmissible in legal proceedings.  This provision is extremely important because, by making such statements inadmissible in court proceedings, one of the primary aims of torture becomes redundant.

The Exclusionary Rule:  International law prohibits the use of evidence obtained through torture.

All States are bound by an exclusionary rule

The principle that States may not use any information obtained by torture (the “exclusionary rule”) is expressly stated in Article 12 of the 1975 General Assembly Declaration against Torture:

Any statement which is established to have been made as a result of torture or other cruel, inhuman or degrading treatment or punishment may not be invoked as evidence against the person concerned or against any other person in any proceedings.

It is also expressly stated in Article 15 of the UN Convention against Torture (UNCAT):

Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.  The exclusionary rule is an integral part of the general prohibition of torture and other forms of cruel, inhuman and degrading treatment or punishment.  As a consequence:

The exclusionary rule is specifically included in the treaty obligations of all States parties to general human rights treaties, such as the International Covenant on Civil and Political Rights (ICCPR), even if not expressly mentioned.  The exclusionary rule also binds states that are not party to the UNCAT, ICCPR or any other human rights or humanitarian treaty, since the general prohibition of torture and other ill-treatment is itself a rule of customary international law.3

Like the other obligations in the general prohibition against torture, the exclusionary rule is absolute and non-derogable.

Reasons for the exclusionary rule

The exclusionary rule is based on two considerations. First, statements made under torture are inherently unreliable; admission of such information in proceedings, where the proceedings involve consequences for individuals, may be contrary to principles of “fair hearing”. Second, since the use of information obtained from torture in proceedings is often the reason why torture is applied in the first place, prohibiting its use removes an incentive to torture. The Committee against Torture has also expressly applied these rationales in its work.

The rule applies to all information extracted by torture by any State, anywhere in the world

The exclusionary rule applies no matter where in the world the torture was perpetrated and regardless of the nationality of the perpetrators.  Even where the state seeking to rely on the information had no previous involvement in or connection to the acts of torture or other ill-treatment, the exclusionary rule prohibits the state from using the information.

The rule excludes all information obtained by any form of coercion, not just torture 

States cannot apply the exclusionary rule only to information obtained through a narrowly defined concept of “torture”, distinguishing other forms of cruel, inhuman or degrading treatment: all information obtained through any form of ill-treatment is covered.

Supplementary measures to effectively exclude information obtained by torture

In order to effectively meet the obligation to exclude evidence obtained by torture, the Committee against Torture has stressed that, in addition to a clear exclusionary rule in domestic law, supplementary measures may also be taken. States could introduce measures to:

  • Prevent the use of confessions as the sole evidence necessary for a guilty verdict. Such procedures invite force and coercion to extract such a confession.
  • Exclude all confessions made in the absence of a lawyer, to persons below a certain rank, or to non-judicial officers.
  • Guarantee the right against self-incrimination in law, and ensure the accused is informed of this right.
  • Ensure the burden of proving evidence was obtained by torture or not rests with the State. This burden should be clearly stated in law.
  • Agree a clear procedure to test a confession for signs of torture. The State might discharge the burden by maintaining detailed detention records, providing an independent medical exam at the beginning and end of custody, and by recording all interrogations. These records should be critically examined by a judge.

Convention on the Prevention and Punishment of the Crimes of Genocide.  Adopted by the General Assembly of the United Nations on 9 December 1948

Prohibition of Genocide

According to the Convention, article I states, that the Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.

Definition

Article II In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such : (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

Punishments for the Crime of Genocide

According to Article III The following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.

Therefore, on the basis of the two UN Convention I have outlined, the current TPLF brutal regime has to be taken to international criminal court without delay.  Every individual official of the current regime in Ethiopia, who has been perpetuating the crimes of torture and genocide have to be held accountable for their heinous international crimes against the Ethiopian people they have been unleashing over the last twenty-six years.

I call upon all Ethiopians who have legal expertise in international human rights law and public international law to act in concert both who resides inside and outside Ethiopia.   The lawyers inside Ethiopia can help in gathering hard evidences on the current regime’s practices of torture and the act of genocide perpetuated over the last twenty-six years.  They can do that by compiling hard evidence by conducting interviewing the victims of torture who are still residing in different parts of Ethiopia.  They can also gather witness statements from people who have been detained unlawfully and have experienced the current TPLF regimes brutality and cruelty inside the regime’s numerous hidden detention camps and jails across Ethiopia.

They can also compile video and photographic evidence from the people who had personally experienced torture and those who have witnessed torture inside the regime’s torture locations.  Both victim’s personal statements, photographic evidence and visual materials will help to trigger legal action against the current TPLF brutal regimes officials who had a direct and indirect involvement in perpetuating torture and genocide against Ethiopians.

We need to act very urgently in unison as one people and family Ethiopia to bring justice for our brothers and sisters who had experienced torture at the hands of the current TPLF brutal and cruel regime in our country Ethiopia.  We the fortunate and educated Ethiopians must reach out to our brothers and sisters to seek justice on their behalf.  We have a generational duty to defend and seek justice through all available legal means for our people in times of their needs.

This is a testing time to all Ethiopians who are in the legal profession and legal expertise both as a practitioners and legal academic expertise where ever we reside.  Our efforts and commitments will bear fruits if we act in concert to the best of our abilities.  We need to invest out time, energy and money to show our solidarity to our beloved Ethiopians.  We have both the intellectual and professional power to bring this venture in seeking justice for our precious fellow Ethiopians.  We should not hesitate for a second to act and bring to fruition our collective endeavour to bring result in due course.

Justice and human rights is a universal and transcending human values that applies to every human being by virtue of being human, that everyone should be treated with dignity and in fair manners.  The current regime’s officials who have been abusing and brutalizing our beloved Ethiopian brothers and sisters should face justice at the international court of justice.  They must be held accountable for their cruel and heinous crimes they have been perpetuating for over two decades.

The current TPLF brutal regime has openly declared war against the entire country.  It openly started its genocidal policy in every parts of the country.  It has been terrorising the country for the last twenty-six years.  But, now it has intensified its terror and brutal act against the innocent and defenceless people across the country.  The looting and robbing of the country by this ruthless regime has reached an intolerable height and the young generation cannot endure it anymore.  That is what is happening across all over the universities in country.  Its time to act in concert by all Ethiopians to pursue all the TPLF criminals to bring them to justice and repatriate all the money robbed from our country.  We need to work hard without wasting time as the regime is intensifying the terror and robbery the country even near its death.

Dibaba, T.K. Amele

Human Rights and International Law Expert

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