Cause list number: 22-005503-17 Public Prosecutor’s Office number: 09-748013-12 Date of judgment: 8 June 2022 JUDGMENT AFTER TRIAL Court of Appeal, The Hague joint bench for criminal proceedings Judgm

Article 6

of the ECHR, the Public Prosecution Service will be declared inadmissible in the prosecution. This must be an irreparable infringement of the right to a fair trial, which has not been or cannot be compensated for in a way that satisfies the requirements of a proper and effective defence. In addition, this infringement must be able to carry the far-reaching judgment that - in the words of the European Court of Human Rights - ‘the proceedings as a whole were not fair’. However, in the very exceptional case that the Public Prosecution Service might be declared inadmissible on this ground, it does not additionally have to be established – in that respect, the Supreme Court has adjusted the criterion applied earlier - that the infringement of the right to a fair trial took place deliberately or with gross disregard for the interests of the accused. (...) 2.5.3 In cases where there has been one or more procedural defects that initially jeopardised the right of the accused to a fair hearing of the case, but which have been remedied to a sufficient extent to allow the trial as a whole to proceed in a fair manner, the criterion discussed under 2.5.2 does not, in principle, allow for the Public Prosecution Service to be declared inadmissible.(...).’ Violations of standards during the investigation is a form of procedural defect. Pursuant to Article 132a CCP, investigation is understood to mean the investigation of criminal offences under the authority of the Public Prosecutor with the aim of making decisions pertaining to criminal procedure. The Supreme Court already made similar considerations in a ruling of 13 September 2016 regarding inadmissibility as a reaction to infringements of defence rights that do not fall within the scope of Article 359a CCP: ‘2.3.4. In the event of an infringement on the defence rights of the accused, which does not fall within the scope of Art. 359a CCP, the inadmissibility of the Public Prosecution Service will not be considered, except in the exceptional case that the infringement is of such a nature and severity that it is no longer possible to speak of a

art. 6 ECHR. It should be noted in this respect that it must first and foremost be an infringement that is irreparable and that has not been compensated for in a way that satisfies the requirements of a proper and effective defence. In addition, this infringement must be capable of supporting the far-reaching judgment that - in the words of the European Court of Human Rights - ‘the proceedings as a whole were not fair’. It follows from the above that the declaration of inadmissibility of the Public Prosecution Service can only come into play in exceptional cases. High demands are made on the reasons for that declaration of inadmissibility. Consequences other than the inadmissibility of the Public Prosecution Service are more likely if there is an infringement - irreparable and not subject to (procedural) compensation - of the defence rights. If, for example, the evidence of the accused’s involvement in the charges against him is based exclusively on a witness statement made to the police against him, while on the grounds mentioned in HR 29 January 2013, ECLI:NL:HR:2013:BX5539, NJ 2013/145 it must be assumed that the accused has not been able to exercise the right provided for in Article 6, Paragraph 3, opening words and under d, ECHR, to examine the witness or to have the witness examined regarding that statement, and that the accused’s involvement in the charges against him is not confirmed by other evidence either, or that the evidence referred to does not relate to those parts of the statement that have been contested by the accused, it seems logical that this contested witness statement should not be used as evidence and that, in the absence of other evidence, the accused be acquitted of the charges against him, and in a confiscation case, that the demand for a confiscation order be rejected. This is no different if the lapse of time has constituted a complication in the collection and valuation of the evidence.’ The Court of Appeal has assessed the arguments brought forward by the defence and the possible consequences thereof in the light of the above. The Court of Appeal has concurrently taken the points brought forward by the defence - where applicable jointly - into consideration. Re a: a contravention of the obligation to report? Article 152 CCP stipulates that investigating officers draw up an official report of the offence that they have detected or of what they have done or found in connection with an investigation as soon as possible. From what [journalist] has stated – in contrast to what the defence has argued – the start of the investigation cannot be considered to have been reported in a manner defying the truth. Indeed, the fact that [journalist] had contact with someone from the Public Prosecution Service in the ten years prior to her examination before the Examining Justice in 2018 relates to what has been stated in the official report, and that which Berger explained in the official report that was submitted at a later date. Also otherwise, the Court of Appeal cannot see how in this respect official reports might not have been drawn up in accordance with the truth, or - as the defence argues – that the (as the Court of Appeal understands it: unjustified) impression was created that ten years later the article by [journalist] was suddenly stumbled upon, which led to the start of the investigation. In contrast to what the defence has argued, it has not at all become apparent that an official report was drawn up (under oath of office) in violation of the obligation to report, and so, in this respect, no procedural error can be said to have been made. Re b. neither original documents nor a complete criminal file have been obtained from Ethiopia It is not disputed that in this case documents from Ethiopia take an important place in the evidence against the accused. Together with the defence and the Public Prosecution Service the Court of Appeal furthermore finds that it would certainly have been preferable to have the originals of these documents, inter alia for further forensic research. Although the Court of Appeal does not see why the complete criminal file from Ethiopia should be available (all the more so since the Ethiopian criminal file only partly concerns the facts of which the accused is accused in the present Dutch criminal proceedings), it is also certain that not all possibly relevant documents have been obtained. In order to obtain these documents and the originals, the Public Prosecution Service made the necessary efforts by means of the aforementioned requests for legal assistance, but without the desired result. The failure to obtain all relevant and original documents from Ethiopia should not be regarded as a procedural error within the meaning of Article 359a CCP. Therefore, the Court of Appeal should assess whether this constitutes an infringement of the defence rights of such a nature and severity that there can no longer be any question of a

Art. 6ECHR as referred to in the aforementioned judgment.

The Court of Appeal answers this question in the negative. In the first instance and on appeal, the defence has been able to comment on the collected documents and has been able to put forward a defence, which it has done. The defence has been given the opportunity by the Public Prosecution Service to actively participate in the collection of additional documents in Ethiopia during the appeal phase. Handwriting experts have investigated at the request of (inter alia) the defence and one of them has been examined in the presence of the defence. Although better research could have taken place if originals had been available, the experts were nevertheless able to answer the questions put to them. Finally, the defence was able to question Kiros extensively about the nature and origin of the documents provided. He was also questioned about the possibility that the documents had been ‘tampered with’. Also [journalist] was examined in the presence of and by the defence about the documents that were in her possession. Insofar as the rights of the defence have been infringed by not being able to obtain the originals, that infringement has thus been compensated for in a way that meets the requirements of a proper and effective defence. What significance the lack of originals has for the evidentiary question in the light of this statement of the accused, is a matter of valuation of this evidence. The Court of Appeal will return to this later. Re c. important witnesses not examined? The Court of Appeal states first and foremost that the issue of not examining witnesses particularly touches upon the question of the usability of statements, insofar as made by these persons, as evidence. The Court of Appeal will neither discuss this aspect, and the valuation of the witness statements - also in the light of fair trial - here, but later on in the judgment when evaluating the evidence. Therefore, the Court of Appeal will limit itself at this point to the question of whether the fact that there are persons/witnesses who could not be examined has infringed on the rights of the defence to such an extent that the Public Prosecution Service should be denied the right to prosecute. The Court of Appeal puts first and foremost that it would have been desirable if the requests for legal assistance on this point could have been carried out. After all, the requests had been granted by the Court of Appeal and possibly - as we do not know the statements - this would have helped to establish the truth. However, by not examining these, and the other, dismissed witnesses/persons, (from the last 2 groups mentioned earlier) it cannot be said that the investigation was so flawed that no effective defence could be conducted. The Court of Appeal has taken into account that although the defence argues that these are all important witnesses, but not what that importance is. Therefore, neither the relevance, nor the weight of the statements of these witnesses within the whole of the results of the criminal investigation can be determined. Moreover, witnesses have indeed been examined, namely witnesses from the aforementioned first group. The defence has always been able to put questions to them before the Examining Magistrate. Also in appeal, witnesses have been examined (inter alia) at the request of the defence, and the defence has been able to ask questions at all times. In the first instance, the accused has been confronted extensively with the contents of the statements, and also in appeal, new statements have been discussed, and he has been able to comment on them. Here, the Court of Appeal establishes that it is not a matter of violation of the defence rights as referred to in the aforementioned case law. Re d. lapse of time and irreparable restrictions on establishing the truth? The alleged actions of the accused took place a long time ago; when the investigation started, it was already more than thirty years ago. As is often the case in international war crimes cases, the lapse of time does not make the criminal investigation easy, and the establishment of the truth may suffer as a result. Despite the lapse of time, quite a few (copies of) documents from the period charged have been secured in this case. It has not become apparent that witnesses could not be examined because of the mere lapse of time. With regard to the witnesses that have been examined (by the TIM, the Examining Magistrate or the Examining Justice) it has not become apparent that they were no longer able to make a proper statement. If they were not already aware of this themselves, their interrogators explicitly pointed out to them before they gave their testimony the danger of completing or reconstructing events and the importance of mentioning the source of their knowledge. Insofar as there is any influence alleged by the defence to have been exerted by other witnesses or by other information from outside, this is a factor that should be taken into account when evaluating the statement. In the hearing in the first instance in particular, the accused stated very extensively about the actions he was accused of, in which he did not seem to be hampered by memory problems in general. On appeal, this was sometimes the case, but he was able to answer most questions adequately. Therefore, in the opinion of the Court of Appeal, it has not become apparent that the lapse of time has impeded the establishment of the truth to such an extent that exercising the defence rights has come under unacceptable pressure. 10.4 Conclusion Despite the lapse of time, the accused and his counsels have been able to put forward an adequate defence; they have been able to put forward what they wished against the results of the investigation, and in the first instance and on appeal, investigations were carried out at the request of the defence by examining witnesses, and by expert investigations. The accused himself has been able to make extensive statements. The fact that not all witnesses could be examined and that that which has been charged took place a long time ago, has not precluded this. Insofar as the rights of the defence have been infringed upon by not being able to dispose of the original documents from Ethiopia, this infringement has been compensated in a way that satisfies the requirements of proper and effective defence. The grounds put forward cannot, therefore, individually or together and viewed in conjunction with each other, give cause to establish procedural errors within the meaning of Article 359a CCP, nor can they lead to the conclusion that the defence rights have been infringed upon in such nature and with such severity that there can no longer be any question of a

Article 6ECHR.

Insofar as the defence has argued that the principles of proper criminal proceedings have been violated, the Court of Appeal - in the absence of sound substantiation - will suffice with the observation that this has not become apparent to it. The Public Prosecution Service is therefore allowed to prosecute. Hereafter, as mentioned, the Court of Appeal will return to the use and valuation of the Ethiopian documents and witness statements, the latter also in the light of the ‘Keskin’ case law. 11Applicable law 11.1 Articles 8 (old) and 9 (old) of the War Crimes Act At the time of the acts charged, war crimes were made punishable by, inter alia, Article 8 (old) of the WOS, and the liability of the superior by Article 9 (old) of the WOS. The later recodification of the WOS into the WIM is not the result of a changed insight of the legislator into the punishability of the actions made punishable, so that the legislation at the time of the offences charged applies, except for the initial threat of the death penalty. Articles 8 (old) and 9 (old) of the WOS read: Article 8 l. A person who is guilty of violating the laws and customs of war is liable to a term of imprisonment of not more than ten years.

Imprisonment of not more than fifteen years shall be imposed: 1°. if the offence is likely to cause the death of or grievous bodily harm to another person; 2°. if the offence involves inhuman treatment; 3°. if the offence involves forcing another to do, not to do or to tolerate something; 4°. if the offence involves looting.
Life imprisonment or temporary imprisonment of not more than twenty years shall be imposed: 1°. if the offence results in the death or grievous bodily harm of another person or involves rape; 2°. if the offence involves violence in concert against one or more persons or violence against a dead, sick or wounded person; 3°. if the offence involves in concert the destruction of, damage to, rendering unusable or causing to disappear any property that belongs in whole or in part to another person; 4°. if the offence referred to in the preceding paragraph under 3° or 4° is committed in concert; 5°. if the offence is the expression of a policy of systematic terror or unlawful action against the entire population or a specific group thereof; 6°. if the offence involves a breach of a promise made or a breach of an agreement entered into with the other party as such; 7°. if the offence involves the misuse of a flag or sign protected by the laws and customs of war or of the military insignia or uniform of the other party. Article 9 A punishment equal to that prescribed for the offences referred to in the preceding article shall be imposed on anyone who intentionally permits a subordinate to commit such an offence. To interpret the elements to be proven of Article 8 (old) of the WOS, the judge must base himself on international law and international case law. 11.2 The term ‘laws and customs of war’ The term ‘laws and customs of war’ in the WOS is an open term, synonymous with the law of humanitarian warfare. It refers to the norms of command and prohibition contained in the four Geneva Conventions, Additional Protocols I and II to these Conventions, other international treaties, and customary international law. The four Geneva Conventions The four Geneva Conventions of 1949 provide the rules of humanitarian law in times of armed conflict (hereafter the Geneva Conventions or separately: GC I, GC II, GC III, GC IV). They oblige the Member States to criminalise and prosecute severe violations of the conventions. Each convention focuses on a category of protected persons during an armed conflict. The Geneva Conventions apply in their entirety to international armed conflicts and in part to non-international conflicts. The four conventions contain an Article 3, which is identical for all of them, the so-called Common Article
Common Article 3 sets out minimum standards of conduct to be observed by the belligerents in a non-international armed conflict and reads: In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1)Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the abovementioned persons: (

a)violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (
b)taking of hostages; (
c)attacks upon personal dignity, in particular humiliating and degrading treatment; (
d)the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2)The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. In the indictment in this criminal case, Common Article 3 of the Geneva Conventions is mentioned as part of the accusation of acting contrary to the laws and customs of war, within the meaning of Article 8 of the WOS. The four Geneva Conventions were ratified by Ethiopia in

Additional Protocols I and II The term ‘the laws and customs of war’, as mentioned, also refers to the Additional Protocols I and II to the Geneva Conventions (hereinafter AP I and AP II), dating from 8 June
AP I and AP II fill a number of gaps in the Geneva Conventions. AP I does this for international armed conflicts, and AP II for non-international armed conflicts. The objective of AP II is the (further) improvement of the protection of civilians and others who do not (or no longer) take part in the armed struggle. Ethiopia did not join AP I and AP II until 1994 - after the period referred to in the indictment. Customary international law Finally, in addition to treaties that may be applicable in a specific case, customary international law may be used to interpret the term ‘laws and customs of war’. Customary international law arises when two conditions have been met: 1) a general practice of states and 2) a sense of legal right or obligation (opinio juris). Custom may become law if a sufficient number of states behave in a certain way over a certain period of time (general practice of states) and they have the conviction that this behaviour is permitted, tolerated, or required by international law (opinio juris). The practice of states may consist of acts of state organs, the conclusion of certain treaties, etc. In addition, states should not follow the practice merely because it is politically desirable, but because they believe that it is required or permitted by international law. A sense of legal right or obligation may be evidenced by express statements, contestations or reservations. It can be assumed that by concluding a treaty, states can acknowledge that certain conduct is required or permitted by international law. Decisions by international organisations may also contain an indication of the sense of legal right or obligation of states. This will depend, inter alia, on the content of the resolutions and the conditions under which they were adopted. In the event of a large number of votes against, opinio juris is less likely to be adopted. A sense of legal right or obligation is also derived from general practice. If there is no explicit evidence of a contrary sense of legal right or obligation, for example in the form of contestations by states, it can be assumed that practice implies a sense of legal right or obligation. 11.3 The requirements for war crimes Based on Common Article 3 and the interpretation given to it by (international) case law, one can only speak of a war crime in a non-international armed conflict (as charged to the accused) if the following requirements have been met: (l) there is a non-international armed conflict within the territory of one of the contracting parties;

(2)the perpetrator must have knowledge of the existence of this armed conflict;

(3)the victims must belong to one of the categories of protected persons referred to in Common Article 3; that is, they must be persons taking no active part in the hostilities.

(4)there should be a close connection between the criminal offence and the armed conflict - called nexus in (international) legal doctrine and case law. The criminalisation of war crimes aiming to offer protection against crimes that are (closely) related to war. In the following chapters, the Court of Appeal will provide its opinion on the evidence (chapter 12) and the existence and nature of the conflict in Ethiopia (chapter 13.1). The Court of Appeal will also address the task and the position of the accused (chapter 13.2) and will ascertain the actual events (chapter 13.3). The Court of Appeal will assess whether the victims mentioned in the indictment are persons as referred to in Common Article 3 (chapter 13.4). Subsequently, it will determine whether the established actual events actually constitute violations of Common Article 3 and international customary humanitarian law (chapter 13.5). Next, the Court of Appeal will establish whether the accused played a role in these offences and, if so, what that role was, and subsequently how this possible role should be qualified (chapter 13.6). Finally, the Court of Appeal will provide its opinion on the existence of a nexus (chapter 13.7). 12Valuation of the evidence 12.1 The witness statements The file contains a large number of witness statements, which are statements from eyewitnesses (whether or not they are victims of the acts charged) and hearsay statements. Position of the defence The defence pleaded that none of the witness statements can be used as evidence, because of the time lapse, and because of mutual contact among witnesses, because of hearsay, and because of the fact that they have read books and/or seen documentaries about the period in question or have been in the ‘Red Terror museum’ (in Addis Abeba, as the Court of Appeal understands). In addition, the witnesses have had no foslo confrontation with the accused, which according to the defence was very careless, and the examinations by the Ethiopian police were of a dubious standard. According to the defence, the statements of the witnesses were often contradictory or incomplete. Moreover, a motive for ‘revenge’ cannot be ruled out, whereby witnesses have been influenced, consciously or not, now that the accused has been designated as a perpetrator in legal doctrine, Ethiopian society, and the Ethiopian court, and has even been sentenced to death. The opinion of the District Court In its decision, the District Court outlined an extensive assessment framework for the assessment of the reliability of the witness statements. To this end, the District Court has based itself on case law and legal doctrine and has explained the criteria (focus points) that have guided the District Court in this respect. The District Court has subsequently applied this assessment framework to all witness statements in the Dutch criminal file and has motivated its findings per witness. In so doing, the District Court noted that there is no indication in the file that any witness has consciously made statements contrary to the truth. Where the District Court has excluded a statement from the evidence, it involves a statement for which there is insufficient certainty as to what the witness saw and heard himself, or whether it involves the hearsay statements or statements that relate to events that took place at another time or place than what the indictment relates to. The position of the Public Prosecution Service The Public Prosecution Service argued on appeal that a somewhat broader assessment than that of the District Court would be preferable, in the sense that primary consideration should be given to how a witness statement fits into the criminal file as a whole. According to the Public Prosecution Service, if the statement is consistent with other pieces of evidence on important points, this statement can be (partly) useful as evidence. This does not alter the fact that according to the Public Prosecution Service as well, certain general criteria can be used in the assessment, such as those of the International Criminal Court, to which the Public Prosecution Service referred in the closing speech. The opinion of the Court of Appeal It is not disputed that in criminal cases the judge will always have to approach witness evidence with due care and not infrequently with the necessary caution. In criminal cases concerning international crimes, there are also some other factors that can (further) complicate the usability of witness statements. These cases often involving facts that go beyond the average imaginative powers, both because of the nature of the occurrences and the fact that it involves crimes that took place a long time ago, far outside the Netherlands and therefore also outside the own frame of reference. The Court of Appeal notes that the criteria used by the District Court and the Public Prosecution Service in assessing the reliability of the witness statements in this case do not essentially differ from each other and in this sense also provide the Court of Appeal with a certain amount of guidance. In the assessment of the reliability of the statements, for instance, the Court of Appeal has inter alia always taken into account the fact of there being a conflict and the fact that the witnesses belonged to the EPRP (the group that opposed the Derg, about which more later) or sympathised with it. It is possible that the statement of the witness in question is influenced by the fact that the accused belonged to the ‘other side’. The Court of Appeal is also aware of the possible traumas brought upon witnesses by the terrible events they recounted in their statements. Moreover, these are events that occurred a very long time ago. In this respect, the Court of Appeal notes that the lapse of time does not make the statements of the witnesses by definition unreliable. This also applies to the circumstance that some witnesses had been in contact with each other, have possibly read books and/or seen documentaries about the Red Terror or have otherwise taken in information about the period and events in question. Although these are circumstances that can play a role in the assessment of the reliability of a witness, the conclusion that the statements are therefore automatically unreliable, as the defence seems to advocate, is not justified. In this case, the Court of Appeal has assessed and evaluated the witness statements cautiously each time and has only used them if and insofar as essential elements thereof are confirmed by other evidence, such as other witness statements or documents in the file, and the witnesses have always adequately indicated their source of knowledge. The Court of Appeal has no reason to doubt the correctness and reliability of the witness statements insofar as these have been used as evidence, as these - in mutual temporal relation and coherence to one another and the rest of the evidence - are consistent in essence. Moreover, the witness statements used as evidence have been assessed, as these witnesses have all been examined by the Examining Magistrate or the Examining Justice, in the presence of the defence. The valuation of the witness statements on appeal did not differ from that of the District Court in its sentence. This means that the Court of Appeal will base itself on the same witness statements as those in the first instance. Moreover, the Court of Appeal will use the witness heard by the Examining Justice [person 331] as evidence, as the testimony of this witness also meets the criteria mentioned above. Insofar as the Public Prosecution Service has argued that the witness statements of [person 316], [person 325], [person 315], [person 317], and [person 326] can also be used as evidence (albeit with limitations), the Court of Appeal, together with the District Court, is of the opinion that this is not the case. The Court of Appeal acknowledges that as the investigation proceeds, a witness may be confronted with other (additional) questions than those put to him earlier by the investigative authorities, or somewhat different and/or in a different context, as a result of which a witness remembers additional details that were not discussed in an earlier phase. However, also in the light of the above, the Court of Appeal, together with the District Court, is of the opinion that the statements of [person 316], [person 325], and [person 315] as made to the DLR and the Examining Magistrate are insufficiently consistent, as certain events seem to have been mixed up with each other and the statements (possibly because of the passage of time and/or traumas) are insufficiently concrete, whereby it is also difficult to establish what the witness has seen himself or heard from others. Regarding witness [person 317], the Court of Appeal considers that it cannot be established with a sufficient degree of certainty that this witness was in Gojjam in the same period as the accused, because of the inconsistencies in his statements on this point, which cannot only be explained by a mere misunderstanding because of the Ethiopian calendar. With regard to witness [person 326], the Court of Appeal does not follow the Public Prosecution Service in its conclusion that the inconsistencies in the statements are of minor importance, because these inconsistencies do not concern an isolated detail but very substantial events, whereby it is, moreover, not always clear what the witness has stated from his own knowledge or what he has heard from others. The witnesses that the Court of Appeal deems usable in the submission of evidence will be discussed below, when discussing the acts charged. 12.2 Conditional witness requests from the defence In the oral arguments, the defence has, in reference to an earlier email message dated 2 April 2022, repeatedly requested to hear a large number of witnesses (the Court of Appeal counts more than 85), but only in a conditional sense - namely if the Court of Appeal declare the charges as having been conclusively proven. As this is the case, in view of what has been considered above, the Court of Appeal will proceed to the assessment of these requests to hear witnesses. In the request that the defence made, a distinction between persons designated as ‘yellow witnesses’ (witnesses that according to the defence appear in statements of others, which statements are explicitly contested by the accused), witnesses who referred to the ‘yellow witnesses’ in their statements, and witnesses who appear in the Ethiopian file. The Public Prosecution Service took the position that the requests to hear witnesses should be rejected, as they are defence witnesses, the Keskin jurisprudence does not apply, and the Court of Appeal has already ruled on these requests and no changed circumstances have occurred since then. The previous decisions At the hearings of 29 May 2018 and 19 November 2018, the Court of Appeal already ruled with respect to a large number of witnesses that these had to be rejected (among which the vast majority of the ‘yellow witnesses’ mentioned by the defence) because of lacking interest for the defence, or because of the fact that in the absence of further identifying data - or in one case because of the refusal of the Canadian authorities to comply with the request for legal assistance - it was, in the opinion of the Court of Appeal, implausible that these persons could be heard within an acceptable timeframe. With regard to the witnesses who referred to the so-called ‘yellow witnesses’, the Court of Appeal judged, based on the necessity criterion, that these requests to hear witnesses should be rejected as these witnesses had already been heard by the Examining Magistrate in the presence of the defence. The Court of Appeal has ruled the same with regard to another group of witnesses as mentioned in the minutes of the hearing of 29 May 2018 under item 7. On 8 July 2021, the Court of Appeal subsequently rejected the requests regarding the witnesses residing in Ethiopia (partly those from the Ethiopian criminal file) and witness [person 332] (after this previously having been granted), as it was not possible to implement the requests for legal assistance on this point. The decision on the request for examination of the other witnesses (previously rejected by the Court of Appeal), in which the defence invoked the Keskin jurisprudence, was stayed by the Court of Appeal until after the substantive proceedings. The Court of Appeal will decide this now. Assessment of the requests From the request of the defence, it appears that there are prosecution witnesses and defence witnesses, whereby the defence did not specify per witness to which category they belong. Where prosecution witnesses are involved, ECHR case law implies, in brief, that in certain cases the interest in calling and examining the witness should be presupposed. In the case of defence witnesses, if a sufficiently substantiated request is made to examine a witness, the relevance of a statement made by that witness must be taken into account when deciding whether the witness should be examined. For both categories of witness, the rule applies that if there are sufficient grounds in itself for examining the witness, the witness may not be summoned because of ‘the witness’s unreachability’. However, in that case the judge will have to assess whether, given the absence of the possibility to question (or have questioned) that witness, the procedure as a whole complies with the right to a fair trial guaranteed by Article 6 of the ECHR. The Court of Appeal considers with respect to the witnesses whose examination was initially granted by the Court of Appeal that the request for legal assistance did not result in the witnesses being heard by the Examining Justice in the presence of the defence. In addition, the defence did not provide any information nor did any other information come forward from which it could be concluded that a new request for legal assistance would lead to the hearing of the witnesses in question within the foreseeable future. Moreover, considerable length of time has passed since the Court of Appeal granted the requests to hear witnesses. Furthermore, the Examining Justice has, by means of official reports of findings of 8 February 2022 and 22 February 2022, recently reported on the (attempted) communication with the Ethiopian authorities in connection with the execution of the request for legal assistance; these reports state that the staff member of the Dutch embassy there, Ms [name of staff member], characterises the current state of affairs as ‘flogging a dead horse’. All this leads to the conclusion that there is still no genuine expectation that the request for legal assistance can be implemented. With regard to the witnesses whose statement was used as evidence in the first instance as well as on appeal, the following applies. In line with the judgment of the ECHR in the Keskin case, and the case law of the Supreme Court afterwards, the interest in calling and examining these witnesses should be presupposed, but only when the request concerns a witness in respect of whom the defence has not yet been able to exercise the right to examine. However, the witnesses in question have all been heard by the Examining Magistrate or the Examining Justice, whereby the defence had the opportunity to ask questions. This being the case, the Court of Appeal is of the opinion that the necessity of examining these witnesses - partly in view of that which has been put forward for that purpose and the fact that there are no new developments with regard to these witnesses – is not apparent. Finally, with regard to the other requests to hear witnesses who have already been rejected by the Court of Appeal, the Court of Appeal is of the opinion that the grounds for rejection as mentioned in the aforementioned decisions still apply, as no changed circumstances have occurred. The above entails that the Court of Appeal rejects the request of the defence in its entirety. In its considerations, the Court of Appeal has taken into account the question of whether a possible conviction of the accused would be in accordance with the requirements of a fair trial as referred to in Article 6, Paragraph 1, ECHR (‘the overall fairness of the procedure’) - even in view of the fact that the defence sometimes lacked the possibility to question a witness (or have him questioned), also when the request for this purpose was initially granted. The Court of Appeal has answered that question in the affirmative because only statements of witnesses in respect of whom the defence has been able to exercise the right to examine are used as evidence. 12.3 The documents from Ethiopia and the signature of the accused Introduction The defence has pleaded that the accused was in no way involved in the acts charged. The documents that are in the file with the name, signature and stamp of the accused cannot serve as evidence. The accused disputes that he signed these documents. The authenticity of the documents has not been sufficiently established. Besides, it cannot be ruled out that the signatures were inserted by third parties at a later stage. The original file In this file, as considered above, there are (copies

of)41 pages with Amharic text, originating from the criminal proceedings against the accused in Ethiopia. These were received from the Ethiopian Ministry of Justice within the framework of the execution of an international request for legal assistance in 2013 (see p. 907). These written documents have been translated and a report of findings has been drawn up on their contents (see p. 1004 et seq.). From the translation of the Amharic pages, the Court of Appeal deduces, just like the District Court, that these documents concern decisions on sentences imposed on persons. Furthermore, these documents contain the name of the accused, and often a signature and stamps detailing the position of the accused. In the aforementioned official report of findings, a substantive connection between the various pages and sections is outlined. The job descriptions of the accused are qualified as ‘Chairman of the Coordinating Committee of the Revolutionary Campaign of Gojjam province’ and ‘Permanent representative of the Derg in Gojjam province’. These documents include the following: A letter (see p. 922, with a translation on p. 970) dated 14 August 1978, signed with the name [name of accused] and a signature, permanent representative of the Derg in the province, addressed to the head of the Gojjam province prison, Debre Marcos, with as an annex a list of names of persons against whom ‘revolutionary measures’ are to be implemented (see pp. 923-925, with a translation on pp. 971-973) with the notification that confirmation of the implementation of the order is expected; A reply to this letter (see p. 926, with a translation on p. 974), dated 16 August 1978, from the head of the prison in Gojjam province, addressed to [name of accused], permanent Derg representative in Gojjam province, which confirms that ‘revolutionary measures’ have been taken against 73 persons, that three persons had previously been killed during their escape from prison and that one of the prisoners had escaped. Moreover, it confirms that five prisoners are in Metekel prison; A letter from 16 August 1978 to the prison of Metekel province, stating that revolutionary measures should be implemented against five prisoners (see pp. 931-936, with a translation on pp. 979-990), signed with the name [name of accused], permanent Derg representative in Gojjam province, and a signature; A reply to this letter (see p. 927, with a translation on p. 975), dated 17 August 1978, from [person 328], addressed to [name of accused], permanent Derg representative in Gojjam province, which confirms that the order given in writing and ‘via the telephone call’ to take ‘revolutionary measures’ against the five persons was carried out; An exchange of letters (see pp. 948-949, with a translation pp. 1002-1003) dated 17 August 1978, from the head of the prisons in Gojjam province, addressed to Lieutenant [name of accused], permanent Derg representative in Gojjam province, that following order number 476/11, on 17 August 1978, the revolutionary measure was taken against [person 78]; Two lists, one undated and marked Debre Markos District, 147 indictment, with 211 names (see pp. 937-943, with a translation on pp. 991-997) and one dated August 1978, marked Debre Markos District 2nd round, 147 indictment, with 123 names (see pp. 944-947, with a translation on pp. 998-1001). On these lists, in addition to ‘revolutionary measures’, the various names also carry sentences such as a term of imprisonment of three years with hard labour (see p. 945, with a translation on p. 999), a term of imprisonment of two years with hard labour (see p. 946, with a translation on p. 1000), a term of imprisonment of six months with political lessons (see p. 947, with a translation on p. 1001). Below the list a signature with a stamp bearing the name [name of accused], chairman of the Revolutionary Coordinating Committee of Gojjam province is visible. New documents on appeal As mentioned before, 22 documents were added to the file on appeal, including most of the documents mentioned above, but photocopied more clearly, and other, similar documents. These are documents bearing the name and (stamps bearing the) position of the accused and provided with a signature. The experts Documents with signatures were examined by experts. In the first instance, the District Court made use of the report by handwriting expert W.C. de Jong dated 4 March 2016 and the examination of the expert before the Examining Magistrate. The expert delivered his report on 4 March 2016. The expert marked the disputed material as XI and X2, the diplomatic passport supplied as (undisputed) comparative material as VI, and the military identity card as V2. The expert explained that, because copies had been provided to him, some characteristics could not be reliably assessed. However, the complexity and distinctiveness of the characteristics that can be assessed in the disputed signatures are sufficient to ascertain the authorship of the signatures. The disputed signatures and the reference signatures were assessed and compared on different characteristics. The disputed signatures show clear similarities with the reference signatures in all characteristics. The expert report concludes that the results of the investigation are more probable if the disputed signatures, XI and X2, are authentic signatures originating from the author of signatures VI and V2 (hypothesis 1) than if they originate from a different author and are the products of imitation (hypothesis 2), with the expert noting that one of the higher degrees of probability thus does not apply here. The expert was examined by the Examining Magistrate on 28 June 2016. The defence was present and was able to examine the expert about his analysis and conclusions. The expert confirmed that he cannot say with certainty that the disputed signatures are not an imitation. The imitation hypothesis cannot be considered probable. His conclusion is that signatures XI and X2 are authentic signatures, but he cannot establish that with certainty, and that is a consequence of the quality of the investigative material. On appeal, handwriting analyses were repeated, and the disputed signatures were examined by experts W. de Jong, P.L. Zevenbergen and C. Verhulst. Expert De Jong performed additional analysis into the authorship of two signatures on two lists, one dated 16 August 1978 with 211 names (see pp. 937 up to and including 943) and one dated 24 August 1978 with 123 names (see pp. 944 up to and including 947, translations on pp. 991 up to and including 997, and 998 up to and including 1001, respectively). De Jong again compared the signature on these documents with the accused’s signatures on his original passport and identity card. De Jong’s conclusion is that the investigation results are more likely if the disputed signatures are reproductions of authentic signatures of the accused, than if they were not produced by the accused. The question of whether they are indeed the accused’s signatures cannot be answered. Expert Verhulst analysed the disputed signatures and analysed the same material as De Jong did in the first instance. He holds that the findings of the investigation would be somewhat more probable if the disputed signature were an authentic signature of the person concerned than if the disputed signature were a forgery or imitation of the signature of the person concerned. He makes this statement in relation to the document that De Jong marked as X2. He could not give an opinion about the signature on document X1. Expert Zevenbergen also analysed the same material as De Jong in the first instance and comes to the conclusion that the quality and quantity of both the material offered for analysis and the comparative material do not allow for a forensic writing and document analysis to be carried out resulting in a conclusion that would be sufficiently convincing and reliable. This also means that it is not possible to say whether or not the disputed signatures are the product of applied ‘artful tricks’ (such as cutting, pasting, printing, photocopying or editing with a photo editing programme). However, setting aside the objections and limitations for the use of the material made available, the number, nature and quality of (the combination
of)the graphological similarities, which are to be qualified as essential, without graphological differences, make it much more likely that the disputed signatures are genuine signatures of the person who also produced the material for comparison than that the disputed signatures were produced by any other person. This conclusion can only be granted indicative significance. The expert also found that, with regard to both disputed signatures, no imitation features could be observed, which is a severe indication in favour of the authenticity of these signatures. No traces of imitation were found. During the appeal hearing, the defence pleaded that the report and the statement made by expert De Jong during the examination before the Examining Magistrate should be excluded from the evidence because this expert could not be deemed reliable. In support of this argument, reference is made to certain tentative phrasings that the expert apparently used in his report and that did not seem to correspond to his firmer conclusions during the examination before the Examining Magistrate. It is also argued that the expert in his report wrongly based himself on the conclusion that it is ‘more probable’ that the signatures came from the same person, whereas the expert seemed to have meant that it is ‘somewhat more probable’. With regard to the other reports, including the supplementary report by De Jong, the defence notes that there is a great difference of opinion between the analysts and that the reports should therefore be used with restraint. The report by De Jong and his statement before the Examining Magistrate should be completely excluded from the evidence. The opinion of the Court of Appeal First of all, the Court of Appeal will rule on the reliability of the analysis conducted by expert De Jong. This expert drew up two reports and was examined before the Examining Magistrate. The expert is registered in the Netherlands Register of Court Experts in the field of forensic handwriting analysis. All experts in this register are tested against objective criteria for quality, reliability, and competence. In that which the defence has brought forward, the Court of Appeal, in view of the contents of both reports and the explanation given by the expert before the Examining Magistrate, sees no reason to doubt the expertise and the reliability of the investigation carried out by this expert. All the more because the other experts, including those requested by the defence, have reached more or less comparable conclusions based on the same investigation material. Insofar as the defence questions the statement of the expert before the Examining Magistrate, the Court of Appeal observes that the defence has been present at that examination and has been given every opportunity to voice its doubts directly to the expert. The request to exclude the report and the witness statement of De Jong from the evidence will therefore be rejected. As indicated before, the Court of Appeal regrets, together with the defence and the Public Prosecution Service that, even after attempts by the Public Prosecution Service to that end, the originals of the documents investigated have not been obtained. However, the Court of Appeal does not consider it plausible that further analysis of the originals would lead to a different conclusion regarding the signatures. Although they all point out the limitations of the investigation, the analysis by the experts, as has so far been possible and as mentioned above, do not offer any lead to that effect. Furthermore, although the accused has denied having signed the letters, he has also failed to provide a plausible explanation for the signature with his name and position on the letters. Nevertheless, the Court of Appeal will investigate whether an alternative scenario is plausible. Alternative scenario? Insofar as the accused wanted to imply that the signatures must have been forged by someone else in Gojjam at the time, the Court of Appeal considers, together with the District Court that this is extremely improbable. Not only because the replies to the letters, namely the confirmations of the revolutionary measures, were sent to the accused’s office, but also because according to the letter of the head of the prison in Metekel of 17 August 1978, the order written earlier to take revolutionary measures with regard to 5 persons was also given by telephone. In addition, De Jong considers imitation improbable and also expert Zevenbergen has concluded that the lack of imitation features is a substantial indication in favour of the authenticity of the signatures. Insofar as the intention is to suggest that the contents of the letters and the signatures on the letters were not forged until much later by editing at the time of (and for the benefit
of)the criminal proceedings against the accused in Ethiopia, the Court of Appeal considers the following. As mentioned, the signatures on two of these letters have been examined by three handwriting experts. Although they have not been able to rule out the possibility of editing, this seems very improbable to the Court of Appeal. The disputed signatures on the (many, certainly after the addition of new, also disputed documents in appeal) documents all differing slightly from each other, which makes forgery by editing highly improbable. Finally, the Court of Appeal rejects the possibility of mistaken identity claimed by the defence. The fact that in Ethiopia there may also have been other persons with the name [name of accused] is insufficient for that; moreover, the accused stated during the appeal hearing that there was no other [name of accused] with the Derg. Alternative scenarios have therefore not become plausible. As the Court of Appeal has no other reasons to doubt the authenticity of the signatures, the Court of Appeal, partly in view of the witness statements and the (other) findings with regard to the tasks and the position of the accused (see also below), concludes that the accused signed the letters with names and lists. The fact that no original documents were obtained and that therefore they could not be examined does not alter this conclusion. As there is no reason to suppose that these came from someone other than the accused, the aforementioned conclusion applies not only to the documents that were examined, but also to the other letters and documents from Ethiopia, with the accused’s name, position and signature. The Court of Appeal attributes these as well to the accused. 12.4 Requests for further examination of the documents from Ethiopia The defence has conditionally requested additional examination of the documents from the Ethiopian criminal file, including the documents as mentioned on the ‘list of documents’. This request did not contain any further substantiation of what kind of examination should take place, nor of who should do it. In view of this lack of substantiation, the Court of Appeal sees no necessity to order further examination. 12.5 The report of expert Abbink The Public Prosecution Service has taken the position that the expert report by Prof. Dr G.J. Abbink dated 29 April 2016 can be used as evidence, in contrast to what the District Court ruled. It is true that Abbink made remarks about the accused and his guilt, but that is no ground to disregard Abbink’s report as a whole as for the most part it deals with other subjects than the role and guilt of the accused. Abbink’s report can therefore be used as evidence at least in relation to those subjects, and the Public Prosecution Service requests the Court of Appeal to do so. In this respect, the Court of Appeal considers the following. The Court of Appeal is of the opinion, together with the District Court, that no distinction can be made as to the extent to which the expert has only reported and stated about what his science and knowledge teach him, or that he has also (in part) based his findings on what he has read about the accused in the criminal file that was made available to him. As he has also expressed an opinion - whether or not based on the documents in the file - about the question of guilt, the expert can no longer be regarded as objective. The fact that the report only partly (explicitly) concerns the accused and his guilt cannot alter this opinion. Therefore, the Court of Appeal will not use the report and statements of this expert as evidence. 12.6 Fair trial Finally, in this section, the Court of Appeal will consider the question of whether the points put forward by the defence together (i.e. to substantiate the inadmissibility of the Public Prosecution Service, and the - rejected - conditional requests) still allow the proceedings to meet the requirements of Article 6 ECHR. Here, the Court of Appeal has recognized that witnesses could not be examined, and that originals of documents from Ethiopia were not obtained. The facts involved go far back in time and not all witnesses remember everything. The accused too had to reach far back in his memory in his statements and his defence. On the other hand, both in the first instance and on appeal, witnesses have been heard at the request of the defence, the defence has, in the process, been able to exercise its right to examine, and only those witnesses will be used as evidence. Documents in the file have been subjected to expert opinions (also) requested by the defence. By adjusting the location of the hearing, the Court of Appeal has accommodated the medical situation of the accused in order to give him every opportunity to give his statement during the hearing. Accordingly, the accused and his counsels have been able to raise what they wished against the results of the investigation. The fact that offences charged took place a long time ago in no way impeded this. The Court of Appeal has taken alternative scenarios into consideration and investigated them. Therefore, the Court of Appeal deems it justified to conclude that the procedure ‘as a whole’ has been fair. This was the case both in the first instance and on appeal. 13. Assessment of the charges 13.1 The existence and nature of the conflict 13.1.1 Armed conflict As considered above, international humanitarian law applies when there is an armed conflict within the territory of one of the contracting parties. In order for a perpetrator to be convicted of a war crime, he must also have knowledge of the existence of this armed conflict. Assessment framework A distinction is made between international armed conflicts between states, and non-international armed conflicts within a state. The rules for these two types of conflicts differ in certain respects. As there is no reason to connect the charges with a conflict between Ethiopia and another state, the Court of Appeal will merely ascertain whether there is a non-international conflict. It should be noted that the determination of whether there is a non-international armed conflict is to a large extent a factual assessment that depends on the circumstances of the case. Over the years, the ICTY in particular has elaborated the concept of ‘non-international armed conflict’ in its case law and developed criteria for assessing whether it is pertinent. The ICC also uses these criteria and, with reference to the ICRC comments, has found that they are considered authoritative by states and have become a general practice among states. In the first place, the intensity of the conflict must be of a level of ‘protracted armed violence’, and secondly, the armed groups involved must be sufficiently organised. Factors that may be important in determining the intensity of a conflict include the number, duration, and intensity of individual confrontations; the type of weapons and other military equipment; the amount and calibre of ammunition fired; the number of persons, and the type of armed groups participating in the fighting; the number of victims; the extent of material damage; and the number of refugees from the combat areas. The involvement of the UN Security Council can also be an indication of the intensity of the conflict. Although the violence does not have to be continuous and uninterrupted, the threshold of ‘protracted armed conflict’ is not met if there are internal disturbances and tensions, such as riots and isolated and sporadic cases of violence. The following factors may be relevant in determining the degree of organisation of armed groups: the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of a headquarters; the circumstance in which a group controls a particular territory; the possibility to provide the group with access to weapons and other military material, recruitment, and military training; the ability to plan, coordinate and conduct military operations, including troop movement and related logistics; the ability to determine a unified military strategy and the use of military tactics, and the ability to speak with one voice and to negotiate and conclude agreements such as a ceasefire or a peace pact. This is not an exhaustive list and none of the factors are decisive in themselves. A state is presumed to have armed forces that meet the requirement of organisation. Once a non-international armed conflict has been ascertained, international humanitarian law applies to the entire territory under the control of a party involved in the conflict, whether or not there is fighting there. A non-international armed conflict in Ethiopia? Before answering the question of whether there was a non-international armed conflict in Ethiopia in the period referred to in the indictment, the Court of Appeal will briefly discuss relevant developments in Ethiopia in the years prior to it. 13.1.2 Relevant developments in Ethiopia as of 1974 In 1974, the army seized power in Ethiopia. The group of soldiers who ascended to power formed ‘the Derg’, Amharic for (literally:) a committee of equals. The Derg initially consisted of 126 members. On 12 September 1974, the Derg issued a proclamation deposing emperor Haile Selassie and transforming the Derg into the Provisional Military Administrative Council (hereinafter PMAC). Subsequent proclamations suspended the constitution, dissolved parliament, and banned strikes and demonstrations. During the first years of the revolution, land and businesses were nationalised by the Derg, and with the formation of peasant and neighbourhood associations (urban dwellers’ associations), also referred to as kebeles, the administration changed as well. Marxist-Leninist education was made compulsory. Schools were closed and students were sent into the countryside within the framework of the National Campaign for Development. In November 1974, the PMAC announced that it had shot dead its chairman, Aman Andom, and had executed a group of about sixty detainees consisting of both senior officials of the former imperial regime, and its own members. On 3 February 1977, Vice-President of the Derg, Mengistu Haile Mariam, staged a coup and, with the assassination of Derg President Teferri Banti and 3 members of the Standing Committee, gained full power. In November 1977, Major Atnafu Abate, Vice Chairman of the PMAC was executed along with 46 officers. Thus, by 1978, the Derg numbered a mere 80 members. There were various left-wing (counter)movements, such as the Ethiopian People’s Revolutionary Party (hereinafter EPRP) and the All-Ethiopian Socialist Movement (hereinafter Meison). Meison initially aligned itself with the Derg camp, but in the course of 1976, it also became one of the regime’s opponents. A more aristocratic independence movement was formed by the Ethiopian Democratic Union (EDU). In 1975 and 1976, armed EDU units controlled much of the Gondar region, especially along the border with Sudan. In addition, the Derg had to contend with the Eritrean independence movements, Eritrean Liberation Front (ELF) and Eritrean People’s Liberation Front (EPLF), which waged a joint battle against the Ethiopian army from January 1975 onwards. The EPRP and EPLF also had contacts with the Tigray People’s Liberation Front (hereinafter TPLF), a left-wing student movement founded in 1975, which gained increasing control of Tigray province in the following years. 13.1.3 Parties to the conflict The EPRP/EPRA The EPRP was, as mentioned, a left-wing opposition movement and was founded in 1972. Military training of EPRP members started in 1973, and by 1975 the core of the army consisted of 30 people armed partly by the Eritrean People’s Liberation Front (EPLF) operating from Tigray province. From June 1974, the EPRP had a central leadership, a political programme and published a periodical entitled ‘Democracia’. In addition to a central leadership, the EPRP was organised by geographical zone. These so-called inter zonal committees were granted the power to make independent decisions, and each inter zonal committee had a member of the central committee assigned to it. At the first congress of the EPRP in 1972, the decision was made to form an army. This army is known as the Ethiopian People’s Revolutionary Army (EPRA). The EPRA had great appeal among the youth and, from early 1977, its membership grew rapidly. In March 1977, the EPRA base in Assimba numbered over a thousand men, those in Tigray and Begemidir over fifteen hundred. Ghelawdewos Araia also speaks of growth of the EPRA in late 1977 and early 1978. The increase in size of the EPRA, together with a large increase in arms supplies through the foreign committee of the EPRP in the same period, made reforms necessary. A Rectification Movement led to the creation of the EPRA’s own statute, which described the rights and duties of EPRA members, as well as the basic principles (democratic centralism, central leadership). A new command structure was also established: from then on, the EPRP Central Committee commanded the armed forces and provided operational guidance through the Military Committee. The statute also provided for a military tribunal. In addition to an army, the EPRP had Urban Armed Wings, also known as Urban Defence Wings, which in the organisational structure were under the Military Committee’s authority. In 1977, each Zonal Committee had between four and six Urban Military Units under its command. In some cases, even eighteen units. In Addis Ababa, between fifty and sixty Urban Military Units were active, with a total of 225 to 250 members. The command structure was as follows: at the top there was the Central Committee, below that the Military Committee, below that the Rural and Urban Armed Wing Leadership Committee, and below that the Operations Committee. The Rural and Urban Armed Wing Leadership Committee was responsible for implementing and following up on decisions made by the EPRP Central Committee regarding military activities in the city. The Operations Committee consisted of qualified and professional military activists. The State The EPRP fought against the Derg, the then (military) government in Ethiopia, and vice versa. The Derg had the government army at its disposal, which in the 1974-1977 annual report of the Dutch embassy in Addis Ababa was estimated at 80,000 men and according to the 1977-1978 annual report had grown to 400,000 men. In August 1977, the National Revolutionary Operations Command (NROC) was established (Kiflu Tadese refers to this body as the National Revolutionary Campaign Council (NRCC)). Proclamation 129/1977 placed all military units under the command of the NROC. Mengistu et al. appointed the members of this body, which thus commanded the army, police, and militia. Mengistu also set up a battle group, known as Nabalbal (‘Flame’), which also functioned as a special resistance fighting unit. The military command had a parallel structure of both executives and (left-wing political) commissioners, consisting only of Mengistu loyalists. Through this political influence, he strengthened his grip on the military. Opponents, including within the Derg, were efficiently eliminated. In addition to the army, the (military secret) police, the security service (‘the Security’), and the Nebalbal units, the implementation of the Red Terror (see below) also involved various squads. The kebeles had their own ‘Revolutionary Defence Squads’, with which they effectively supervised and monitored the residents of a kebele. The kebeles were gradually given far-reaching powers to track down and arrest people. Then there were the party executives and squads, the best known of which was the Seded (Seded means raging fire). Interim conclusion In view of the above, the Court of Appeal is of the opinion that the EPRP, with the military branch EPRA and the Urban Armed Wings, was a sufficiently organised armed group during the relevant period. The same applies to the Derg. 13.1.4 Armed struggle Hostilities on the part of the Derg The Derg declared the EPRP an enemy of the revolution in September 1976. From that moment on - also called the beginning of the War of Annihilation - thousands of EPRP members and sympathisers were imprisoned and executed by the government. The extreme violence with which the Derg responded to (inter alia) the EPRP is known as the Red Terror. Late 1976, the Derg leaders ordered the armed kebeles ‘to wipe out counter-revolutionaries’. Through search and destroy campaigns, the government was able to track down and eliminate or imprison EPRP militants who had gone underground and to disarm the civilian population. Bahru Zewde writes: ‘These exercises formed a dress rehearsal for the full-blown Red Terror, in which thousands of the regime’s opponents were brutally murdered on the streets. Directed primarily against the EPRP this licence to kill subsequently engulfed other opponents of the regime like the EPLF and TPLF — as well as, ironically, Ma’ison, once a rift was created between that organization and the Darg.’ After the coup of 3 February 1977, Mengistu became commander-in-chief of the armed forces. From that moment on, the violence intensified. In a speech on 17 April 1977, Mengistu called for a fight against the enemies of the revolution and smashed bottles filled with a red liquid on the ground. In late April 1977, in anticipation of May 1 demonstrations, persons accused of EPRP sympathies were murdered in large numbers throughout the country - including in Gojjam. It was estimated that about a thousand children had been killed in Addis Ababa, their bodies left lying in the streets. Families of the dead were forbidden to mourn. The mass killings were based, inter alia, on the promise ‘for every revolutionary killed, a thousand counter-revolutionaries executed’. There were also mass arrests of alleged EPRP supporters. Relatives who, as was customary, brought food and drink to the prison were meant to understand that the person concerned was dead if they were sent away and told not to bring anything anymore. Although around March 1978, the most massive killings were over, imprisonment and execution continued, particularly also in the province. The Red Campaign was launched on 27 June 1977 with a 4.5-hour parade in Addis Ababa of about 60,000 men, of whom more than 50,000 were militia, and with Mengistu concluding his speech with the words: ‘the EPRP, EDU, and the Eritrean secessionist reactionary organisations will be crushed’. Alleged opponents of the Derg had to publicly confess their EPRP membership. This was done under the threat of death during so-called exposure meetings, i.e. mass meetings. Not revealing oneself and being reported by someone else, meant that execution would follow. At schools, students and teachers were arrested during such meetings. Parents and children were forced to report each other. In November 1977, as mentioned, Major Atnafu Abate, Vice-President of the PMAC was executed along with 46 officers. Atnafu was accused of siding with the EPRP and the EDU. Letters and telegrams from the Dutch Ambassador mentioned above, dated October, November and December 1977, tell of armed actions to drive EPRP members out of their hideouts in Addis Ababa, of cleansing operations involving the killing and execution of counter-revolutionaries belonging to the EPRP. The Embassy’s annual report states that, as of December 1977, hundreds of corpses were left along the streets of the capital in the early hours of the morning as a deterrent to the population. Hostilities on the part of the EPRP From September 1976, primacy was also placed by the EPRP on armed struggle. The following text appeared in Democracia in the second week of September 1976: ‘Understanding the nature and the last ditch efforts that the fascist will make and understanding that in the final analysis the decisive role would be played by a force supported by the people, it has been quite a while since the EPRA was formed and engaged in an armed struggle. In order to counter the anti-EPRP campaign, the organization will pay more attention to this wing.’ Thus, the onset of the Red Terror was accompanied by attacks on prominent members of the Derg by the EPRP with the help of the EPRA; examples include the failed attack on Mengistu on 23 September 1976 (which is attributed to the EPRP), and the murder later that month of Meison prominent Feqre Mare’d. During the last months of 1977, the EPRA ambushed the 217th Nebalbal regiment in Begedemir, capturing officers and stealing weapons and ammunition. In February 1978, the EPRA carried out an operation in Tigray in which Nebalbal officers were killed. In July 1978, an EPRA operation took place in the Begedemir area against a Derg military camp, which was destroyed but left many EPRA fighters dead. However, EPRA membership grew again thanks to influxes from the urban areas where people were fleeing the Red Terror. This enabled the EPRA to deploy contingents in three regions, each of which had its own command structure. In December 1978, the R-3 Command was still able to carry out an attack on Addis Zémen. The EPRP/EPRA also received weapons from the ELF, and the EPRA also carried out a number of military operations together with the EPLF. The Urban Armed Wings carried out attacks and robberies in August and September 1976 to obtain weapons, carried out an attack on members of Meison - including Mengistu’s right-hand man - and carried out the failed attacks on Mengistu. EPRP members carried out attacks and murders in 1977. Several permanent secretaries of various ministries and about thirty kebele leaders were killed by the EPRP. The hostilities described above are corroborated by the statements of the accused. At the hearing in the first instance, he stated that, at the time that he was in Gojjam, Gojjam and Gondar were conflict areas. The EPRP had great influence, and the accused called the EPRP ‘an indescribably violent organisation in those days’. His photo album is full of friends and comrades who were liquidated by the EPRP. The EPRA/EPRP base in Metekel (Court of Appeal: in the west of Gojjam) was very threatening to the whole nation because of its location next to Sudan. The accused stated furthermore that at that time there was also heavy fighting in the North, in Eritrea. The only major road from Addis Ababa to the North went through Debre Marcos in Gojjam. The EPRP had blocked this road so that the Derg troops could not move north. The military unit that had cleared the road went to Metekel at the request of the accused to dismantle the EPRP base there. This dismantling was instrumental in reducing the power of the EPRP in Gojjam, according to the accused. On appeal as well, the accused has mentioned the violent nature of the EPRP. He stated that thousands of people were killed by the EPRP. The EPRP had to be fought against because they had taken up arms and had vowed to remove the Derg from power by force. Accused’s knowledge From the above statements, it is sufficiently evident that the accused was aware of the armed conflict between the Derg and the EPRP. Conclusion From the above, it transpires that there was persistent and intensive violence in Ethiopia prior to and in the period referred to in the indictment. The armed conflict took place between the Derg (the government) on the one hand and the domestic opposition group EPRP on the other. The violence between the Derg and the EPRP can definitely be called intense. The Court of Appeal therefore concludes that in the period referred to in the indictment, in Ethiopia, there was a non-international armed conflict within the meaning attributed in the expression in humanitarian law of war and that Common Article 3 is applicable to it. Finally The Court of Appeal deems sufficient the observation that there was an armed conflict between the Derg and the EPRP and will - in contrast to the District Court - not also examine whether there were any other armed conflicts between the Derg and other groups. The Court of Appeal sees no reason to do so, partly in view of the acts that have been charged. As appears from the above, in contrast to what the Public Prosecution Service argued, the Court of Appeal did not include the book ‘Love of Assimba’ by Kahsay Abraha Bisrat in the above, which had been added to the file by the Court of Appeal, because – to also establish the way in which the EPRA was organised - there was no reason to do so, whereas the defence objected to its use. 13.2 The role and position of the accused The offences that the accused has been charged with relate to actions in the period that the accused was stationed at the Derg in Gojjam. Before the Court of Appeal proceeds with the discussion of these offences, it will first establish, as an intermediate step, which position and role the accused held. The position of the accused in Gojjam The fact that the accused was one of the members of the Derg is not in dispute. There was no other [name of accused] who was a member of the Derg. After training in Moscow, he was sent to Gondar around 1976 and later to Gojjam, where he was stationed as provincial representative of the Derg in 1977/1978. There he was - as the sole representative of the Derg - chairman of the revolutionary coordinating campaign committee (hereinafter also the campaign committee). At the appeal hearing, the accused confirmed the above - which the District Court had established earlier - although he also said that he did not remember exactly when he was in Gojjam. In addition, the accused held the position of substitute member of the Central Committee at a national level within the Derg. A description of the tasks and powers of the campaign committee can be found in proclamation 177/129 issued by the Derg. The text of this proclamation was included in the Ethiopian newspaper Negarit Gazeta of 27 August 1977. The accused has declared himself to be (re)acquainted with the proclamation. This proclamation, available in the file only in English, mentions the institution of a so-called National Revolutionary Operations Command, headed by the Derg chairman. Article 12 of the proclamation stipulates that a Revolutionary Operations Coordinating Committee will be set up per region (the Court of Appeal understands: the campaign committee). Article 14 deals with the powers and tasks of this committee and includes inter alia: to follow up anti-revolutionary and anti-unity activities. Seen from the perspective of the Derg, this can, in the opinion of the Court of Appeal, be understood as taking action against the political resistance of the opposition. Although the proclamation also mentions a Sector Command, with a sector chairman to be appointed by the government, this was not provided for Gojjam, the accused stated at the appeal hearing. The accused, as chairman of the campaign committee, was therefore the sole representative of the Derg in Gojjam. In case of violation (in any way) of the proclamation, as is evident from article 25, punishment followed: anyone who disobeyed orders arising from the proclamation or tried to evade these orders, or who incited someone else to such disobedience, was punished with imprisonment of not more than five years and in more severe cases with life imprisonment or the death penalty. The accused further stated that the committees in the districts took measures against anti-revolutionary movements. One of the tasks in the proclamation was to take action against the anti-revolutionary groups when they sabotaged or threatened the unity of the country. By anti-revolutionary groups, several groups are meant, including EPLF, TLF (the Court of Appeal understands: TPLF), EPRP, OLF, ONLF, SLF, and so on. On appeal, the accused stated about his tasks as chairman of the revolutionary coordinating campaign committee that if the EPRP or another group in Gojjam committed violence, he would discuss this with the police or another municipal organisation. He had a coordinating position and saw to it that something was done against fighting. His role was one of surveillance, which meant that he surveilled the whole political atmosphere of the region, including the way in which the EPRP and other organisations were combatted. About the Central Committee, of which the accused was a deputy member, he stated that it was responsible for the organisation of a (new) socialist party. The file does not contain much information about this committee, other than that it was the supervisor of the Standing Committee, which can be considered as a kind of executive power, consisting of 17 Derg members. Furthermore, witness [person 333] can testify to the fulfilling of the position of and by the accused. In this respect, the Court of Appeal considers him a valuable witness because, at the time, he was the chairman of a campaign committee just like the accused, but in another region (Illubabur). He therefore also worked for the Derg and apparently knew the accused well, because he declared to have worked together with the accused for 17 years. He stated about the accused that he, just as Mengistu, was a member of the radical group within the Derg. There were in fact two groups within the Derg, which had a difference of opinion on political issues and on the question of whether conflicts should be solved with violence. The extremists believed that (inter alia) the EPRP should be destroyed by force. The accused was an active participant during meetings and he was in favour of radical changes, according to [person 333]. The accused was sent out to perform tasks and was close to the leader. Extremist members of the Derg were sent to places where there was a lot of resistance to the government. The accused was therefore sent to Gojjam. The fact that there were many opponents in Gojjam was spoken of during meetings. In Gojjam, according to [person 333], the accused was in charge of the political leadership in the capacity of both chairman of the revolutionary campaign committee and representative of the Derg. He had to control the political situation there. The revolutionary campaign coordinating committee received reports from the provinces or from various agencies of the state region about the security situation, about people who disturbed the security, and then the committee reached decisions on that basis. Various announcements had been made by the government. The committee had to ensure that the announcements were implemented. The committee also received reports from the police and from the security service at state region level. The Committee discussed these in meetings and decided on them. According to the announcement (the Court of Appeal understands: the proclamation), the committee at state region level had the power to decide on people who opposed the committee or obstructed the implementation. The committee decided after investigation. The leader of the police investigation department was also a member of the revolutionary campaign coordinating committee. Cases were sent to the committee from the lower levels. The period in which the accused was in Gojjam With regard to the period of time in which the accused was stationed in Gojjam, the Court of Appeal finds that this must in any case have been in the period from February 1978 up to and including August 1978. The accused himself has stated that he was there in any case in 1978, and that he was there for 7 or 8 months. Not only are there the necessary witnesses testifying to the presence of the accused in Debre Marcos in Gojjam in that period, but there are also the documents (letters with orders and enclosed lists), each time with the name and position of the accused underneath, which documents cover the period from 7 April 1978 - 24 August 1978. The position designations of the accused are shown on these as ‘Chairman of the Coordinating Committee of the Revolutionary Campaign of Gojjam province’ and ‘Permanent representative of the Derg in Gojjam province’. During questioning, the accused also recognised himself on a photograph that was found during the search of his house. The accused stated that ‘Ginbot 26 1970 Bahir Dar’ is written on the back of that photograph. Translated and converted, this is 3 June 1978, and a fact of common knowledge is that Bahir Dar is a locality in Ethiopia, situated in then Gojjam. Finally, the file contains an article from the Ethiopian Herald of 16 June 1978 about Gojjam, in which the accused is called ‘a member of the Provisional Military Administration Council assigned to the region...’, and in which he warns that: the broad masses of the Ethiopian People should guard against subversive and reactionary plots. 13.3 Establishment of the facts The Court of Appeal will now proceed to establish the actual events that are relevant in the light of the offences charged. 13.3.1 Establishment of the actual events The Court of Appeal establishes that in the period from 1 February 1978 up to and including 31 December 1981, the following events took place in Gojjam, Ethiopia. The exposure meetings In the month of February 1978, an exposure meeting was held at a secondary school in Debre Marcos as part of the Derg’s so-called exposure campaign. The exposure meeting in Debre Marcos lasted three days. The purpose of such meetings was to expose EPRP members.People were called upon to come to the school and identify themselves as EPRP members. They were told that if they identified themselves as EPRP members, nothing would happen to them, but if they did not identify themselves, the Red Terror would begin and executions would follow. Armed kebele guards and armed kadres (the Court of Appeal understands: (non-commissioned) officers) were present on the premises.There were persons who mentioned names of others at such a meeting and also persons who, out of fear of being mentioned by someone else, attended the meeting and identified themselves as EPRP members. After the meeting, about three hundred people accompanied by armed kadres were deported by buses or trucks to the nearby (so-called fifteenth) military camp in Debre Marcos.This was empty, because the troops had been sent to the north to fight against the EPLF. The military camp The military camp housed about three hundred people between the ages of fifteen and seventy, but mostly people under the age of nineteen.Men and women stayed in the same building and the space was filthy. There was little space and people had to sleep on the floor.There was only one toilet for 300 people. The prisoners’ families had to bring food and clothes. The prisoners had to attend indoctrination meetings, where they were told how good the Derg was and how bad the EPRP was, and where they had to sing anti-EPRP songs. Initially, the atmosphere was reasonably good and there was a certain amount of freedom in the camp. They were promised their release after a week of political orientation. Although there were guards, not the whole area was under watch, which reinforced the expectation created by the earlier promise that they would be allowed to return home after the indoctrination. The armed kadres constantly inquired about the EPRP’s structure and weapons.Some people, who had been arrested before and were in prison, were brought to the military camp to reveal the EPRP’s organisation and structure and to talk about its weapons. Among these prisoners was also a certain [person 336], the highest leader of the EPRP.When names of people who had not yet been detained were mentioned, the kadres went into the city to arrest them. After about ten days, a group of men from a special unit was brought in from Addis Ababa. They were put in charge of the camp, the atmosphere deteriorated, the regime became considerably stricter, and surveillance was tightened.One of the members of this special unit was a non-commissioned officer from the navy, [person 337], others were called [person 338] and [person 339]. The daily management was in the hands of Captain [name captain]; a different [person] from the accused.On the day they arrived, [person 338] read out a list of fifty to sixty names of higher EPRP leaders and they were taken to the police camp, about ten kilometres away.Afterwards, new groups were transported each time and finally everyone was transferred to the police camp in Debre Marcos. The police camp Initially, the first group that had been transferred were in the offices. There were so many people in the room that when they lay on the floor their legs touched. The windows were closed and blinded. When the rest of the group arrived, they had already been transferred to the larger rooms, which had been renovated in the meantime.These were three larger rooms: two for men and one for women.In addition, there were four small rooms, three of which were used as interrogation rooms, and one was used as a torture chamber.Prisoners from other parts of Gojjam were also transferred to the police camp in Debre Marcos.Apart from the special interrogators, fifty to seventy commandos had come to guard the camp.Family visits were no longer allowed. The prisoners were crammed into large cells and slept on the floor. There was no medical care for the ill or wounded.The cells were approximately fifty to sixty

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ECLI:NL:GHDHA:2022:1674

Cause list number: 22-005503-17 Public Prosecutor’s Office number: 09-748013-12 Date of judgment: 8 June 2022 JUDGMENT AFTER TRIAL Court of Appeal, The Hague joint bench for criminal proceedings Judgm

Article 6

Art. 6ECHR as referred to in the aforementioned judgment.

Article 6ECHR.