DISTRICT COURT OF THE HAGUE Criminal law Multiple judge panel of the Criminal Court responsible for cases concerning international crimes Public Prosecutor's office number: 09/748013-12 Date judgment: 15 December 2017 Defended action (Promis judgment) Based on the indictment and the examination in court the District Court of The Hague has delivered the following judgment in the case of the Prosecutor against the accused: [judgment according to the project for improved statement of grounds in criminal judgments] [Eshetu A.], born in [place of birth] on [day of birth] 1954, residing at [city], currently detained in the penitentiary institution "Krimpen aan den IJssel" in Krimpen aan den IJssel, the Netherlands. Name of the investigation: Merens Structure of the judgment The judgment is structured as follows:
(2)the organisation of the parties of the conflict were emphasised as the basic criteria of an armed conflict. The criteria from the Tadić case have been widely used in international and national case law and have also been further developed by the ICTY, which in the Boskoski & Tarculovski case summed up the relevant factors for an objective review of the requirements of 'intensity' and 'organisation'. As a result of the development in the Tadić case law and doctrine the International Committee of the Red Cross (hereafter: ICRC) modified her understanding of an armed conflict and concluded in 2008 that non-international armed conflicts “are protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State [party to the Geneva Conventions]”, in which the armed confrontation “must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organization.” The ICRC defined organised armed groups as groups who “develop a sufficient degree of military organisation to conduct hostilities on behalf of a party to the conflict, albeit not always the same means, intensity and level of sophistication as State armed forces”. The International Criminal Court (hereafter: ICC) gave the following guidelines in the Lubanga case regarding the assessment of the level of organisation of an armed group: “When deciding if a body was an organised armed group (for the purpose of determining whether an armed conflict was not of an international character), the following non-exhaustive list of factors is potentially relevant: the force or group’s internal hierarchy; the command structure and rules; the extent to which military equipment, including firearms, are available; the force or group’s ability to plan military operations and put them into effect; and the extent, seriousness, and intensity of any military involvement.” To determine of a party to the conflict fulfils the necessary criterion of organisation five groups of factors are relevant, namely factors who: “
- indicate the presence of a command structure;
- indicate whether the group can carry out operations in an organised manner;
- indicate the level of logistics;
- determine whether an armed group possesses the level of discipline and the ability to implement the basic obligations of common article 3;
- indicate whether the armed group was able to speak with one voice.” Here again the factors themselves are not essential. What matters is that “’organized armed groups' must have a sufficient degree of organization, in order to enable them to carry out protracted armed violence”. To also determine the intensity of the violence, the following factors can be taken into account: “the number of civilians forced to flee from the combat zones; the type of weapons used, in particular the use of heavy weapons, and other military equipment, such as tanks and other heavy vehicles; the blocking or besieging of towns and the heavy shelling of these towns; the extent of destruction and the number of casualties caused by the shelling or fighting; the quantity of troops and units deployed; existence and change of frontlines between the parties; the occupation of territory, and towns and villages; the deployment of government forces to the crisis area; closure of roads”’ Separate acts of violence do not fulfil the minimum requirement for intensity and none of these factors would be in itself decisive. If one of these factors has a low level it can be compensated by another factor with a high level. Protracted violence Regarding the question if the violence was sufficiently protracted, the ICC considered the following in the Bemba Gombo case: “The Chamber notes that the concept of “protracted conflict” has not been explicitly defined in the jurisprudence of this Court, but has generally been addressed within the framework of assessing the intensity of the conflict. When assessing whether an armed conflict not of an international character was protracted, however, different chambers of this Court emphasised the duration of the violence as a relevant factor. This corresponds to the approach taken by chambers of the ICTY. The Chamber follows this jurisprudence. The Chamber notes the Defence’s submission that “if the conflict devolves to the level of riots, internal disturbances or tensions, or isolated or sporadic acts of violence, or if the conflict ceases to be between organized armed groups”, the threshold for the existence of a “protracted armed conflict” would cease to be met. The Chamber considers that the intensity and “protracted armed conflict” criteria do not require the violence to be continuous and uninterrupted. Rather, as set out in the first sentence common to Article 8
(2)(f), the essential criterion is that it go beyond “isolated or sporadic acts of violence”. Until where and when does international humanitarian law apply? If the threshold of a non-international armed conflict is reached, international humanitarian law applies and continues to apply for the whole territory which is under control of the parties until a “peaceful settlement” is reached. The armed conflict only ends when one of the parties ceases to exist, for example because it is so defeated that re-grouping or continuation of the hostilities is impossible, even in the longer term or if there is a permanent cessation of the armed confrontations without a genuine risk of resumption. The Appeals Chamber of the ICTY considered in the Kunarac case: “There is no necessary correlation between the area where the actual fighting is taking place and the geographical reach of the laws of war. The laws of war apply (….) in the case of internal armed conflicts, the whole territory under the control of a party to the conflict, whether or not actual combat takes place there, and continue to apply (…) in the case of internal armed conflicts, until a peaceful settlement is achieved. A violation of the laws or customs of war may therefore occur at a time when and in a place where no fighting is actually taking place.” 7.5 The nature of the conflict in Ethiopia 7.5.1 The EPRP and the State The EPRP A lot of the victims in this case belonged to or were sympathisers of the EPRP. The EPRP grew out of the student movement and was founded in 1972. From June 1974 the EPRP had a central leadership, a political program and it issued a publication named Democracia. Besides a central leadership the EPRP was organised according to geographical zones. These so-called inter zonal committees were given the authority to take independent decisions and a member of the central committee was added to every inter zonal committee. The EPRP had an armed wing, the Ethiopian People’s Revolutionary Army (hereafter: EPRA) commanded by the central committee and guided on an operational level by the Military Committee. Besides an army the EPRP had Urban Armed Wings, also called Urban Defence Wings, which fell under the Military Committee in the organisation structure. These Urban Armed Wings committed attacks and robberies to obtain weapons, and attacked members of Meison, among whom Mengistu's right hand, and committed a failed attack on Mengistu. Because of their increasing (armed) resistance the EPRP was declared enemy of the revolution by the Derg in September 1976. In 1977 EPRP-members committed attacks and murders. Several permanent secretaries of different ministries and around thirty kebele leaders were killed by the EPRP. David and Marina Ottaway describe the situation as follows: “The situation had reached the point by February that no Political Bureau Partisan was safe in the streets or even in his office”. The Uppsala University describes the EPRP as follows: “Communist EPRP was mainly active in the mid 1970s, when it engaged in both urban and rural armed opposition, but with a focus on the former. It initiated a campaign of urban guerrilla warfare in September 1976, involving bombings of public buildings and other symbols of state authority as well as assassinations of numerous public officials. The campaign was labelled the White Terror by the government, which in turn countered with what would be known as the Red Terror. During this campaign, government security forces systematically hunted down and killed suspected EPRP members and their supporters. Having been defeated in the towns by late 1977 EPRP’s urban component was forced to take refuge with the group’s rural component in Tigray and Gonder.” According to Kiflu Tadesse the EPRA increased in numbers, amounting to around 1500 troops in Tigray and Begedimir in 1977. Also Ghelawdewos Araia speaks of growth of the EPRA at the end of 1977 and the beginning of 1978. During the last months of 1977 the EPRA caught the 217th Nebelbal (“Flame”, a counter-resistance group of the Derg) regiment in an ambush in Begedimir in a place called Mayleham, in which officers were taken prisoner and weapons and ammunition were captured. In February 1978 the EPRA carried out actions in Wukro in Tigray in which officers of Nebelbal were killed. In July 1978 there was an operation of the EPRA against a military camp of the Derg in the Begedemir area, the camp was destroyed but a lot of EPRA troops were killed. Nonetheless, the number of EPRA members increased again with in influx from urban areas where people were flying from the Red Terror. As a result the EPRA was able to deploy contingents, each of them with their own command structure, in three regions. In December 1978 the R-3 Command was still able to launch an attack on Addis Zemen. The EPRP/EPRA was supported, trained and armed by the EPLF (and TPLF) and also received weapons from the ELF. The EPRA also carried out some military actions with the EPLF. At the hearing in court the accused stated that Gojjam and Gondar were conflict areas during the time he was in Gojjam as representative of the Derg. The EPRP had a large influence and the accused called the EPRP "a indescribably violent organisation in those times" His photo album is full of friends and comrades liquidated by the EPRP. The accused also declared that during his stay in Gojjam for the Derg, attacks took place in Gojjam, which were carried out by the EPRP. During his time the EPRP founded a military guerrilla camp in Metekel, in the western part of Gojjam. This was a place of special strategic interest, Not only was the area rich in natural resources, it was also located isolated from the rest of the country and was vulnerable to a seizure of power because of its lack of infrastructure. Furthermore, the area had a long unprotected border with Sudan, which made it easy for the EPRP and the EPLF and the TPLF to obtain supplies and weapons through Sudan. Because of its location the EPRA/EPRP basis was a threat for the entire nation. During this time there was also heavy fighting in the north, in Eritrea. The only main road from Addis Abeba to the north was through Debre Marcos. De EPRP had blocked this road, so the troops of the Derg could not move to the north. The military unit, which had cleared the road, went to Metekel at the request of the accused to dismantle the basis of the EPRP there. According to the accused this dismantling has been very important to decrease the power of the EPRP in Gojjam. “It was really not sure if Ethiopia would remain as an independent country. At the time Ethiopia was caught in an overwhelming swamp of warfare (...), internal warfare by separatists like ELF, EPLF, TPLF and EPRP in northern Ethiopia, TPLF, EPRP and EDU in the centre and the north (Tigray, Gonder, Wollo, Gojjam and north Shoa); EPRP and the saboteurs of TPLF and EPLF in the central areas and the cities” The interim conclusion of the Court In view of the afore-mentioned the Court holds the opinion that the EPRP (among which the military wing EPRA and the Urban Armed Wings) was a sufficiently organised armed group during the relevant period. The State The EPRP fought the Derg, the government at the time in Ethiopia. The Derg disposed of the government army, which in the reports over 1974-1977 of the Dutch embassy in Addis Abeba was estimated at 80.000 troops and according to the year-report of 1977-1978 had increased to 400.000 troops. The Derg reacted with violence towards (among others) the EPRP, the so-called Red Terror. As mentioned before the Derg declared the EPRP in 1976 the enemy of the revolution. During a speech in March 1977 Mengistu smashed a bottle of red liquid and said that the contra-revolutionaries would be crushed in the same way. During a meeting on 25 June 1977 he used similar terms: “the EPRP, EDU and the Eritrean secessionist reactionary organisations will be crushed”. Letters and post-telegrams of the Dutch ambassador from October, November and December 1977 speak of armed actions to chase members of the EPRP in Addis Abeba from their hideouts, purges through murders and executions of contra-revolutionaries belonging to the EPRP. The conclusion of the Court Considering the afore mentioned the Courts finds that during the period mentioned in the indictment there was an armed conflict in Ethiopia which no longer had the character of internal disturbances or tensions, like rebellions, isolated sporadic acts of violence or such actions. On the contrary, there was a protracted and intensive violence. The armed violence took place between the Derg (the government) on one side and the EPRP on the other side. Therefore the Court holds the opinion that in the period mentioned in the indictment there was a non-international armed conflict in the sense in which this expression is used in the humanitarian law of war and that the common article 3 applies to it. 7.5.2 Different warring factions and the State Even though the conclusion of the Court in itself suffices, the Court wants to point out, in view of the importance of this case, that the way set out by Prosecution Service also leads to the conclusion that there was a non-international armed conflict. The Court considers that to assess if a in a certain conflict the combat actions between the group(
- s)involved in the conflict had the required level of intensity to meet criteria for a non-international conflict, it can also be determined under certain conditions, if there are different groups fighting a common enemy. This can only be the case if each one of the parties involved meets the criterion of a sufficient organisational level. Such a situation may occur if the different groups cooperate on a more than incidental basis in the military field, like the coordination of military actions, but also armament, financing training and offering the possibility of safe passage. The pursuit of a common (temporary) objective might also be relevant. The Court will then address the question if the EPLF/ELF, the EDU and the TPLF in conjunction with the EPRP in 1978 in Ethiopia fulfilled this requirement. De EPRP/EPRA and the EPLF/ELF Since 1975 the ELF and the EPLF fought a common battle against the Ethiopian governmental army. Both organisations had chairmen, consultative bodies, political programs and command-units. Between 1975 and 1977 the ELF and the EPLF were in control of the largest part of the Eritrean territory. In this period the number of ELF and EPLF troops was larger than the number of troops of the Ethiopian army. In 1978 the Derg managed to recapture most of the cities from the rebels. Between 1978 and 1986 there were yearly government offensives against the Eritrean. This also transpires from the statement of the accused at the hearing in court that during his time in Gojjam an army unit was urgently sent to the north of Eritrea because of the fighting over there. From what is considered before and also from the witness statement at the hearing it is plainly apparent that there was a more than incidental cooperation between the EPLF/EFL on one side and the EPRP on the other side. This cooperation concerned all above mentioned areas of cooperation and the combat actions of the EPLF/ELF were in part directed at the objective of the EPRP (the overthrow of the Derg). The EPRP/EPRA and the EDU The EDU was - as described above - not a regional independence movement but a movement which grew out of the ancien régime ousted by the revolution. In 1975 armed units of EDU became active in Gojjam, Gondar and the west of Tigray. At the beginning of 1977 government troops were defeated. From mid 1977 the EDU suffered losses against the Derg in the Gondar region and against the TPLF in Tigray, which had forced back the majority of the EDU-troops over the border in Sudan. At a certain point in time there was some cooperation between the EDU and the EPRA, however in the opinion of the Court there are not enough leads to assess if this cooperation was more than occasional. The EPRP/EPRA and TPLF The TPLF was founded in 1975 and fought from the province of Tigray against the state for social justice and self-determination for all Ethiopians. The accused described a close cooperation between the TPLF and the EPRP, consisting, inter alia, of training and armaments. However the Court considers that - regardless of an eventual temporary cooperation in the sense of the simultaneous fight against the Derg in the province of Tigray- during the time-period which is relevant for the indictment there was no longer any cooperation between both opposing factions , on the contrary. In March 1978 the tensions between both factions and the competition between them, already present since 1975, were settled to the military advantage of the TPLF. The State The Court reiterates what has been considered before regarding the state and adds the following. According to an article of 2 March 1978 in the Ethiopia Herald Mengistu said in a speech in honour of Adowa Victory Day: "Imperialism and bureaucratic capitalism shall perish! The (…) EPRP and separatist forces shall perish! [. . .] Agence France Press points out that lieutenant colonel Megistu announced on 16 May 1978 that the long awaited offensive in Eritrea would begin. Different liberation movements were said to be in control of 90% of the territory in Eritrea. There was heavy fighting around the besieged city of Asmara, were 25.000 Ethiopian soldiers were supposedly stuck. From May onwards the Ethiopian air force used the airport in Makalle in the province of Tigray to bomb positions of the ELF and EPLF in Eritrea. Although a large number of the targets that were hit also had a military character, a lot of villages, cities and herds were attacked. The conclusion of the Court Based on the above, in and interrelated context and on an overall basis, the Court concludes that during the time period mentioned in the indictment there was in Ethiopia (also) a non-international armed conflict between the Derg on one side and the EPRP/ the EPLF and the ELF. The latter fought the same government and in that context they cooperated with sufficient intensity. Each of the groups mentioned had a sufficient level of organisation. The joint battle against the Derg was protracted and considering the mutual cooperation, had a sufficient level of intensity. The fact that the mentioned groups possibly had their own interests, besides their joint purpose -the fight against the Derg- like the separation of Eritrea, and sometimes also fought each other, is of no relevance. 7.5.3 The knowledge of the armed conflict Based on the above-mentioned statements of the accused and his documents the Court establishes that he was aware of the armed conflict. 8The witness statements 8.1 Introduction A large number of the documents in the file are witness statements. As in previous cases regarding international crimes this concerns hearsay statements and statements of eyewitnesses, which may or may not be victims of (parts of the) charged offences. The NR and the DLR have interrogated twenty-eight witnesses in the Netherlands, the United States of America and Canada. The examining magistrate heard eighteen witnesses (some of whom were the same) in these same countries. Since Ethiopia did not want to render judicial assistance it has not been possible to examine witnesses in Ethiopia. The Court however does have copies of a part of the case file used in the Ethiopian proceedings against the accused. This file also includes several witness statements. Neither the Dutch police nor examining-magistrate heard any of these witnesses. In a case like this the question of the reliability of the witness statements is always an important one. Not only because an eventual judicial finding of facts should be largely based on these statements but also because -more than in ordinary criminal cases- there are possible legal reservations against the statements. They are after all accounts of events that have taken place decades - in this case almost four- ago. Furthermore, witnesses might be traumatised by what they have seen and experienced and their culture and environment are different from ours. This entails that it possibly might be not responsible and/or preferable to use all the witness statements as the evidence. In order to assess this the Court will outline in the next paragraph the frame of reference to be used for the assessment of the reliability of the statements. Then the Court will indicate per witness if the statement (in principle) -or partly- can be used as evidence. Finally the Court will consider the requests for witnesses submitted by the Defence. 8.2 The position of the Prosecution Service The Prosecution Service has - referring to the jurisprudence in 'WOS' or 'Wim' cases of this Court, the Court of Appeal of The Hague and the Court of Appeal of Den Bosch - taken the position that neither the passing of time, nor the difference in culture, the seriousness of what the witnesses have experienced and their possible traumatisation, reduces the reliability of the statements. In their presentation of the overall evidence the Prosecution Service has used several statements of witnesses questioned by the Dutch police (and the examining-magistrate) all of them considered in an interrelated context. Some witness-statements have not been used, either because they did not contribute to the evidence, or because the statement contained inconsistencies. The Prosecution Service only referred to the witnesses from the Ethiopian criminal case-file in relation to other statements and/or evidence. 8.3 The position of the Defence The Defence took the view that the witness statements are not reliable enough, due to, inter alia, the passing of time, possible collusion and inconsistencies. Furthermore, the Defence requested to hear a large number of persons (again) as witness. The list of these requests has been attached to this judgment as annex 2. 8.4 The reliability of the witness statements 8.4.1 The frame of reference The Court of The Hague defined a framework to assess the reliability of witness statements. In this framework the following seven features are distinguished: I: the person of the witness; II: the realisation of the statement; III: the review in the light of objective information, obtained from another source; IV: the consistency of consecutive statements rendered by the witness; V: the quality of identifications and recognitions; IV: the consistency of the statements with statements from other witnesses; VII: the plausibility of the rendered statement(s). This framework was again used by the Court of The Hague in the case against Yvonne B., even though the quality of the identifications and recognitions was addressed in one of the other points of concern. In the above mentioned case the Court of Appeal of The Hague has defined the following objective criteria - referring to the considerations regarding the assessment of the reliability of witnesses in the criminal case against Guus K. -: a: the review in the light of objective information, obtained from other sources; b: the consistency of the consecutive statements, made by this witness; c: the consistency of the statements with statements of other witnesses; d: the plausibility of the content of the rendered statement(s). The Court of Appeal again applied this framework in the Tamil case. When applying these criteria in the present case the Court has considered the personality of the witness, how the statement came to be rendered and the quality of identifications and recognition. Although the assessment frameworks of the Court of Appeal and the District Court in the case against Joseph M. and the subsequent case law do not completely match in terms of structure, they do have the same features. Below the Court will, - subject to the referred case law, but also in terms of literature- give an outline of the criteria applied for the assessment of the reliability of the witness statements. It should be noted that to assess the reliability of the witness statements they should be considered in an interrelated context. It is also important to note that the mentioned criteria are just points of attention. Consequently this is not a list for which a certain number of checked boxes should lead to the conclusion that the witness is unreliable. The person of the witness It is possible to imagine circumstances, which might influence the reliability and/or the credibility of a witness. When assessing the reliability the following points should be taken into account: a.
- a)Involvement of the witness in the charged offences A witness that has been involved in the charged offences might have reasons to render a statement, which is contrary to the truth, for example in order to minimize his or her own role. In the case against Joseph M. the Court saw sufficient reason to examine the statement of an witness with caution, since the witness had a possible motive to render a statement which was incriminating for the accused and it could not be discarded that the witness had tried to minimise his won role /involvement and to shift the responsibility to the accused.
- b)Further interests or motives of witnesses to render a statement incriminating to the accused and contrary to the truth A witness might have interests or motives to render an incriminating statement, which is contrary to the truth (see ' the person of the witness' under a). However there should be specific indications for this, beyond the level of mere speculation or suggestion, especially if the incriminating statement is supported by other incriminating statements. For example the circumstance that the witness belonged to a group, which fell victim to the group to which the accused belonged, is insufficient. On the other hand the Court did consider the reliability of the witness to be at stake in the case of a witness who declared that an accused person was always in the company of this brother that committed offences and therefore the accused person also had to be guilty.
- c)Ability of the witnesses to distinguish between what they saw themselves and what they heard from others (de auditu) Science has recognised that is difficult for witnesses who have knowledge from their own observation, to distinguish what they have actually observed themselves from subsequent complements to this observation (post-hoc-information) from another source (for example what they have heard from other people) (source-amnesia). Therefore it is important that the statement reflects to what degree the witness is able to make this distinction. If witnesses talk to each other this might lead to collaborative storytelling which is a strong degree of social influencing between witnesses, causing their experiences and different interpretations to melt into one common account of what has happened.
- d)Disturbing effects due to cultural differences Due to cultural differences a witness might have difficulty in determining time, space and distance and/or might not be able to orientate himself or herself on the basis of maps, photos and images, and the way in which a witness reacts to (specifically difficult) questions might be influenced. For example in the case of Joseph M. the Court considered that the fact that part of the witnesses from Ruanda were not familiar with floor plans and maps and that some witnesses found it difficult to specifically set out dates, time-paths, distances and space. The Court ruled that this should not lead to negative conclusions regarding the reliability of the witness statements.In the case against Yvonne B. the Defence argued that lying is less problematic within Rwandese society and that the witnesses might render false statements because they wished to contribute to a conviction. The Court did not recognise this as a general defence against the evidence but did find that this calls for caution.
- e)The traumatisation of the witness A traumatised witness is not necessarily a less reliable witness. According to relevant literature memories of central details of a traumatic event are often more accurate and complete the memories of peripheral details of the same event. This is caused by the fact that in the case of such an event the attention focuses on threatening, central details (weapon focus effect) and because the boundaries of the traumatic image narrow (boundary restriction). This might result in less attention for other peripheral details, like the appearance of the perpetrator. However in the case against Joseph M. the Court did find that behavioural scientists do not agree on the effects of suppression and that the witness' or victim's account of the traumatic event should be considered with the necessary caution and only in a interrelated context with the other evidence. Nevertheless traumatisation might also lead the memory of the witness to suppression and dissociation, phenomena that influence the memory and on the perception in a general sense. By careful questioning - specifically questioning without external pressure-, possibly by repeating the questions - these statements can be made accessible. In such a case a witness might remembers new information in every subsequent interrogation.
- f)Other factors in the person of the witness Literature warns for the negative effects, which acquiescence (the tendency to answer affirmatively to questions), compliance (agreement with supplied information because the witness feels compelled to do so by the social context) and suggestibility (accepting information as correct under the assumption that the person who supplies the information will be right) might have on the quality of the statements. An appropriate way of questioning/interrogation might lower these risks. The fact that a witness was still a child at the time of the events does not necessarily have consequences for the reliability of the statement rendered at a later age. Investigation shows that the memory of children is accurate and that they can talk accurately about events, which have taken place some years ago. Nevertheless the chance of getting an unreliable statement from children and witnesses with a mental disability is higher compared to normally gifted adults. This might be due to the limitations in the memory, higher level of suggestibility, the language comprehension and the ability to think in abstract terms. The way in which the witness statements are recorded in writing might also make it more difficult to assess the reliability of the witness statements, for example if there is no verbatim transcription. Drafting a statement involves however, in principle, always a transformation process (normative transformation). The rendering of the statement The way the statement is rendered might influence the reliability of the statement. This could involve the following aspects. a.
- a)The way of asking questions, the content of the questions, the attitude and the behaviour of the interrogator The way the questions are asked and the content of the questions might influence the statement rendered by the witnesses. This might refer to asking closed questions, suggestive questions and confusing questions. If the interrogator pushes for an answer this might lead the witness to feel a social pressure to answer. This might also be culturally determined (see 'The person of the witness' under d).
- b)The length of the interrogation In view of the scope of the events it is not unusual for a witness hearing to take up considerable time. However this involves certain risks. In the case of Joseph M. the Court of Appeal considered that the chance of obtaining reliable information decreases if the interrogations go on for hours. This phenomenon is described in relevant literature as the output order-effect.
- c)Communication problems between interrogators and witnesses or between interpreter and witnesses Quite often the assistance of an interpreter is needed for the interrogation of a witness. This might lead to communication problems, but it might also happen that the interpreter gives a wrong translation. Nevertheless eventual misunderstandings between the interrogator and the witnesses, do not necessarily lead to an unreliable statement. If the misunderstandings have been cleared up or are insignificant this does not have to be a problem.
- d)Contact between the witness and other witnesses before rendering a statement Contact between different witnesses prior to the interrogations might lead to source amnesia (see ‘The person of the suspect' under c).
- e)Guarantees for the interrogation The Dutch legal system has guarantees for the rendering of witness statements to the police and the examining magistrate, also if this takes place abroad. If a witness has rendered several statements it is therefore preferable -as mentioned before- to use the statement rendered to the examining magistrate or the Dutch police. However in case of statements rendered to others it is difficult to check if there were adequate safeguards and which methodology was used to obtain them. This might lead to the conclusion that it is wiser not to use these statements as evidence or to use them with due caution. Review in the light of objective information obtained from other sources regarding the situation on-site Objective information might refer to information from forensic research or written sources like documents and reports about the conflict. In the case against Joseph M., inter alia, documents and reports about the genocide in Ruanda in 1994 were used and the actual findings by the ICTR about the armed conflict in Ruanda in 1994 and the ensuing actual events. Finding of facts in writings and reports based on, inter alia, statements of witnesses and experts and documents might in principle be accepted by the judge, although the Defence has not been able to influence the realisation of thereof. Consistency of subsequent statements rendered by the same witness When a witness has rendered several statements the consistency of those statements can be assessed, in the case against Joseph M. the Court considered: “In order to make an assessment of the accuracy or the memory of the witness and/or the victim the statements they rendered at different times to different (criminal investigation) authorities, should be compared. The level of consistency - regarding the level of similarity between the different statements- is then at stake and this again influences the power of evidence of the statement concerned, especially if this concerns aspects of a statement which are fundamental to the evidence. Although a high level of consistency does not guarantee the accurateness of the statement concerned this is likewise for the opposite” Among other factors the person of the witness (see 'The person of the witness' under a to
- f)and the way in which a statement was rendered (see 'the rendering of the statement' under a to
- q)can influence the consistency, but this is also applies to the time span between the events and the rendering of the statement. It is important to consider under what circumstances the identified inconsistencies occur. When this happens at the end of a long interrogation and/if there are symptoms of PTSS, one should be wary of commission errors, which means: incorrect elements in the memory. Furthermore, in case of possible unreliable statements consideration might be given to the extent in which (certain parts
- of)the statements are confirmed by other evidence. Statements containing inconsistencies, discrepancies or contradictions might be excluded from the evidence or the inconsistent part of the statement can be discarded as evidence. However this does not apply to all inconsistent statements, but is only possible in case
- i)the inconsistencies of the differences relate to an aspect of the statement which should be substantial for the evidence or which otherwise manifestly affect the reliability of the statement as a whole, and
- ii)if no satisfactory explanation for the discrepancies, inconsistencies or contradictions is to be found. The quality of the identifications and recognitions Witnesses can identify or recognise the accused person. However these identifications are not necessarily reliable. To assess this the following questions might be asked: a.
- a)Did the witness know the accused person? In principle the recognition by a witness of an acquaintance is significantly more reliable than the identification of an unknown person because the recognition of a person whom the witness has seen only once is far more difficult. This is supposed to be a matter of generally knowledge.
- b)What was the distance between the witness and the accused? The distance between the witness and the accused is an important factor in the observation, combined with the intensity of the light (see hereafter under d). In literature there is dissention about the question from what distance the quality of the observation starts to decline. An investigation from 1996 showed that at a distance of twenty meters, disregarding the intensity of the light, the recognition no longer complied with the lowest limit that was defined in criminal law for diagnostic value. Nevertheless later investigation learned that at a distance of fifteen meters, together with the intensity of the illumination, a less sharp decline was observed, but more of a monotonous change. It was found that for every meter of increased distance the number of correct recognitions declined with 0,60% and the number of incorrect recognitions increased by 0,48%.
- c)How long and/or how often did the witness see the accused? The time-span of the observation (exposure time) is important for the storage of it in the memory. When the observation lasts longer it will be better and the trace created in the memory will be more extensive.
- d)Was it light or dark? The intensity of the light influences the observation. A lower intensity of the light, combined with the distance, decreases the diagnostic value of the recognition (see above under b).
- e)Are there other factors, which make the observation more or less reliable? This might refer to the ability of the witness to see the actions of the accused, his weapon or clothes or to describe co-perpetrators.
- f)Did the witness see the accused en face? It also matters if the has seen the accused en face during the observation, because this benefits the recognition.
- g)Is the witness of the same race as the accused? According to several investigations people are better in recognising someone from their own race and ethnic group than a person from another race or ethnic group. Therefore recognition is in principle more accurate if the witness is from the same race and ethnicity as the accused. Plausibility of the content of the statements Finally the plausibility of the statement can be considered. However caution should be observed in this respect, since there is often an extreme context, which might touch on the boundaries of our comprehension. 8.4.2 The admissibility and the reliability of the witness statements in the present case The Court has applied the above mentioned frame of reference - only where relevant- on all the witness statements in the Dutch criminal case-file. The Court will give a brief outline of its findings per witness. It should be noted that the Court in principle does not question the witnesses' accounts of their personal experiences, namely the arrests, tortures and bad detention conditions they have suffered. There are no indications that any of the witnesses has stated contrary to the truth about this. The Court agrees with the Prosecution Service that in general such traumatic experiences are not easily forgotten. Nonetheless there are factors leading to the impossibility to establish, with the required degree of reliability, what the witnesses say they have seen and heard. Those circumstances might also lead the Court to conclude that part of their statement is not reliable enough to be admitted as evidence. There are also a few statements that, despite the fact that they can be considered as reliable, are not useful enough as evidence because they are for example statements about hearsay or because they relate to events which took place at another time or in another place than the events referred to in the indictment. In general the Court notes that the mere passing of time does not necessarily make the statements of the witnesses unreliable. The fact that some witnesses have had contact with each other, possibly have read books about the charged offences and have become aware of the criminal proceedings in Ethiopia against the accused can by itself not lead to the conclusion that these statements should be regarded as unreliable. Finally the Court points out that although some witnesses have submitted a claim as injured party, there is no indication that these witnesses have rendered statements which are contrary to the truth for their own personal gain. Such an assumption is contradicted by the very limited amount of the claims. [person 328] [person 328] came up as a possible witness because he is one of the persons quoted in the earlier mentioned article in Vrij Nederland. He was interrogated in October 2012 by the NR in the English language. He has primarily declared about the lists and the letters, which were shown to him during the interview for the article, the structure and the objective of the EPRP and the position and the role of the accused. The Court establishes that the witness cannot make a statement from his own observation about the charged offences. He has stated that when he visited a friend in Debre Marcos he saw that they were digging large holes on the prison site and that sixty or seventy people were taken from the prison that night and were killed six or seven kilometres from the prison. But the statement does not clarify when this would have happened, but besides it would seem that he only saw that holes were being dug and was aware of the death of the persons from hearsay. Therefore the Court does not consider his statement suitable as evidence. [person 333, different spelling] [person 333, different spelling] was mentioned by witness [person 328] as a potential witness. In 2013 a preparatory interview was held with him, after which he was interrogated in 2015 by the DLR and in 2016 by the examining magistrate. The interrogations took place with the aid of an interpreter in the English language. He is the brother of [person 334], who held a high position in the EPRP and about whom several witnesses stated that he was shot in the beginning of August 1978 just outside of Debre Marcos. The witness has declared mainly about the fate of his brother and the role of the accused. Since [person 333, different spelling] is not able to declare from his own observations about the charged offences, but only about what he has heard from others - whereby the source is often not mentioned - the Court finds that his statement can not contribute to the evidence. [person 319, different spelling] [person 319, different spelling] was mentioned by witness [person 333, different spelling] as a potential witness. In 2013 a preparatory interview was held with him, and in 2015 he was interrogated by the DLR. In 2017 he was examined -with the aid of a psychologist because he was said to be traumatised- by the examining magistrate. The interrogations took place with the aid of an interpreter in the English language. At the time mentioned in the indictment he was around fourteen years old and member of the EPRP. He has declared mainly about the exposure meetings and the role of the accused. The Court established that [person 319, different spelling] was the only witness to testify that no arrests have taken place during the exposure meetings nor that people were brought from there to a camp or a police station. However three years later he declared before the examining magistrate that two people were taken after the exposure meeting, although he did not see one of the persons being taken but concluded this. The Court notices however that he still mentions two persons in this last statement, while all other witnesses declare that a lot of people were taken after the exposure meeting. Therefore his statement is different from the statements of the other witnesses in one important point. Besides [person 319, different spelling] declared in all his interrogations about an incident, which took place during the exposure meeting, in which someone spit [Eshetu A.] and shouted how good the EPRP was. However the witness has made varying statements about who this person was. During his preparatory interview by the police the he said that this person was his male cousin by marriage, but to the police and then to the examining magistrate he did not mention his cousin but a high ranking EPRP leader whose name he did not know or a boy who had been exposed. The Court finds this difference between the statements all the more striking because one should not expect such an error to be made if it concerns a member of the family. Because of these contradictions, combined with the circumstance that there are indications of traumatising the Court is not, or not sufficiently, able to establish if [person 319, different spelling] actually saw what he describes or that he possible incorporated stories he heard from other people in his own memory. The Court finds it therefore not justified to use his statement as evidence. [person 314] [person 314] was mentioned as a potential witness by [person 333]. Two preparatory interviews were held with him and a third exploratory interview in 2014. In 2015 he was interrogated by the DLR and in 2016 by the examining magistrate. The interrogations took place with the aid of an interpreter in the English language. At the time of the offences mentioned in the indictment he was around twenty years old and he supported the EPRP. He has declared about the exposure meetings, his stay in a military camp, followed by a stay in a police-camp and in prison, detention conditions, tortures and executions. Furthermore, he has rendered an incriminating statement about the presence of the accused the exposure meetings and in one of the camps. The Court finds that the witness has not always declared consistently about what he himself has seen and heard and about what he heard from others. Besides he has declared that every night five or six youths were taken away. No other witness has declared this. He also seems confused about the presence of the accused in Gojjam at the same time as Kassay Aragaw. Furthermore, he has not declared consistently about whether he saw the accused in the police-camp or in the military camp. This gives the Court the impression that the witness unconsciously mixes things up or has not preserved them correctly. The Court finds it therefore not justified to use his statement as evidence. [person 316] [person 316] was mentioned as a potential witness by [person 314]. In 2015 he was interrogated by the DLR and in 2016 by the examining magistrate. The interrogations took place with the aid of an interpreter in the English language. At the time of the offences mentioned in the indictment he was around twenty years old and he was a member of the EPRP although he was not very active. He has declared about the exposure meetings, and the role of the accused in this respect, his stay in a police-camp and in prison, tortures and executions. Furthermore, he has declared about some incidents in which the accused was involved. The Court establishes that he has rendered consistent statements about what he has seen and experienced, but added some observations during his interrogation by the examining magistrate. He declared that he had not seen the accused every day in the camp, but he saw him twice in any case. The Court considers his statement to be reliable in principle and usable as evidence. However, the Court does observe that the witness does not always indicate clearly if he saw something himself or if he heard it from someone or concluded it. Therefore parts of his statement should be considered with due caution. [person 331] [person 331] was mentioned as a potential witness by [person 314]. In May 2015 she was interrogated by the DLR with the aid of an interpreter in the English language. In February 2017 the Court has ordered -upon a request from the Defence- that she should be interrogated as a witness by the examining magistrate. However the Canadian authorities did not give permission for an interrogation by the examining magistrate because [person 331] was allegedly traumatised. The Court will exclude the statement of [person 331] from the evidence, because the examining magistrate was not able to examine her, due to the refusal of the Canadian authorities and the Defence therefore has not been able to exercise the right to examine her. [person 315] [person 315] was mentioned as a potential witness by [person 314]. In 2013 two preparatory interviews were held with him, followed by an exploratory interview in 2014. In 2015 he was interrogated by the DLR and in 2016 by the examining magistrate. The interrogations took place with the aid of an interpreter in the English language. At the time of the facts mentioned in the indictment he was around eighteen years old and he was a member of the youth movement of the EPRP. He has declared specifically about the exposure meetings, his stay in a military camp, followed by a stay in a police-camp and in prison, the special interrogators, tortures, executions and the role of the accused. The Court establishes that [person 315] made a very elaborate and detailed statement. Those statements are also consistent and to not contain contradictions, except the date of his release, which he sets on May 1978 on one occasion and on June or July 1978 on another. It is the opinion of the Court however that this uncertainty is sufficiently resolved by the certificate of release, which was attached to one of the interrogations, which mentions 21 May 1978 as the date of his release. He resolved eventual uncertainties in his account about the source of the knowledge after being questioned about them. The Court sees no reason to doubt the reliability of the statement of [person 315]. The argument of the Defence that this witness did not put forward any other witnesses is - irrespective if this can be established- insufficient to arrive at a different conclusion. The statement of [person 315] can therefore be used as evidence without any restraint. [person 332] [person 332] was mentioned as a potential witness by [person 333]. Two preparatory interviews were held with her in 2013 and in 2015 she was interrogated twice by the DLR and in 2016 by the examining magistrate in the United States of America. These interrogations took place with the aid of an interpreter in the English language. At the time of the offences mentioned in the indictment she did not live in Debre Marcos or in Metekel but in Addis Abeba. Her elder brother [person 4, different spelling] and her younger sister were members of the EPRP. She has specifically declared about what had happened to her brother and male cousin and about executions of prisoners. Furthermore, she declared that she has regular contact with [person 136, different spelling], one of the victims mentioned in the indictment under count 1 and 2, and often talks to her. The Court establishes that the witness has not personally been present at an exposure meeting, or in a police-camp, military camp or prison, she stayed mainly in Addis Abeba and not in Debre Marcos. Regarding her statement about the events, which took place in Debre Marcos her knowledge, is based on what she heard from others. However the source of this knowledge does not always transpire. The Court cannot rule out the fact that [person 332] has obtained this knowledge from her contacts with one or more victims. Regarding what happened to her brother the Court also notices that she has declared that when she visited her brother in the police station she got the impression that her brother had been tortured because he did not stand up and that this was later confirmed by a friend of her brother's. However to the examining magistrate she rendered a different statement, namely that her brother told her that he had been tortured. In view of the above the Court concludes that the statement of this witness cannot be used as evidence. [person 111, different spelling] [person 111, different spelling] is mentioned by witness [person 314]. A preparatory interview was held with him and after this he was interrogated by the DLR in 2015. In 2016 was heard by the examining magistrate in the United States of America. The interrogations took place with the aid of an interpreter in the English language. At the time of the offences mentioned in the indictment he was twenty-nine years old, he worked as a teacher in Debre Marcos and was a member of the EPRP. He has declared about the exposure meetings, his stay in a military camp, followed by a stay in a police-camp and in prison, the special interrogators, the detention conditions, tortures the executions of fellow-prisoners and the decision by which he was sentenced to prison. Furthermore, he has rendered very incriminating statements about the role of [Eshetu A.]. The Court establishes that [person 111, different spelling] has made very consistent statements without contradictions and was able to make a very clear distinction between his own knowledge and what he heard from others. Because of his task in the so-called discipline committee the witness was in a position to see a lot. Regarding the role of the accused he clearly indicates states that there was another person with the name Eshetu, so there does not seem to be a mistaken identity. The Court therefore considers this witness to be very reliable. [person 336] [person 336] was mentioned as a potential witness by [person 332]. He was then interrogated in 2015 by the DLR in Canada. The interrogation by the DLR took place with the aid of an interpreter in the English language and the interrogation by the examining magistrate with the aid of an interpreter in Amharic. At the time of the offences mentioned in the indictment he was around twenty-two years old and he was a member of the EPRP. He has declared that he went into hiding in 1978 because the Derg were looking for him. In 1980 he was caught and ended up in a camp in Bahir Dar. The Court is convinced that [person 336] during the period mentioned in the indictment, or at least during the period that the accused was in Gojjam, was not in Debre Marcos or in Metekel. Therefore his statement about this period can only be based on what he has heard from others, while the witness often did not mention the source of his information. Furthermore, he has declared, after the police showed him lists with a number of names, that this were persons who were killed in May 1978, which is different from what other witnesses have stated. Based on these findings the Court considers his statement not usable as evidence. [person 318] [person 318] was mentioned as a potential witness by [person 336]. He was interrogated in 2015 by the DLR and in 2016 by the examining magistrate in Canada. The interrogation by the DLR took place with the a