By Ethio-Researchers Hub

Background

On November 9, 2020, TPLF led militias and a youth group called “Samri” systematically killed more than 700[i] civilian ethnic Amharas and some non-Tegaru ethnic groups in the Mai-Kadra, Tigray region.[ii] Based on the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention) this mass killing is a genocide. The term “genocide,” a Greek prefix ‘genos’ meaning race or tribe and the Latin suffix ‘cide’ meaning killing, was first coined by Jewish-Polish lawyer Raphäel Lemkin in 1944 in his book titled “Axis Rule in Occupied Europe.” “After witnessing the horrors of the Holocaust, in which every member of his family except his brother was killed, Dr. Lemkin campaigned to have genocide recognized as a crime under international law.”[iii]

Definition of Genocide under International Law and Ethiopian Criminal Law

As a result, the UN Convention on Genocide was adopted in December 1948 and came into effect in January 1951.

According to the Genocide Convention Article 2,

“genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Forcibly transferring children of the group to another group.”[iv]

Since the Genocide Convention embodies principles that are part of general customary international law, all states both that ratified the Convention and those that did not sign the Convention. The acts of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide are punishable.

Hence, Article 269 of the Ethiopian Criminal Code states anyone in a time of war or peace

“with intent to intent to destroy, in whole or in part, a nation, nationality, ethnical, racial, national, colour, religious or political group, organizes, orders or engages in:

(a) killing, bodily harm or serious injury to the physical or mental health of members of the group, in any way whatsoever or causing them to disappear; or

(b) measures to prevent the propagation or continued survival of its members. or their progeny; or

(c) the compulsory movement or dispersion of peoples or children or their placing, under living conditions calculated to result in their death or disappearance,

is punishable with rigorous imprisonment from five years to twenty-five years, or, in more serious cases, with life imprisonment or death.”[v]

Policy Recommendation: Restorative Justice

According to the aforementioned international and national laws, the government has the responsibility to punish those who committed, organized, and gave the Mai-Kadra Genocide order. However, the society of Mai-Kadra and the surrounding society affected by this genocide need to heal if we want to stop the cycle of revenge and create sustainable peace. Arresting the criminals might not be enough to bring justice to the victims and re-establish trust among the different ethnic groups who live in Mai-Kadra. There must be restorative justice. Restorative justice seeks to restore the relationship between the victim and the perpetrator. In contrast, the formal justice system seeks to identify the perpetrator and punish him/her[vi] according to the established rule. Most of the time, restorative justice is based on the traditional system accepted by the community.

Working as a public prosecutor, the author remembers hearing a case of a man who accidentally killed his neighbor during fighting. He was sentenced to 15 or so years (the author does not remember precisely the sentence). After serving more than a decade, he was released early on probation for good behavior. Unfortunately, he did not even see his family because he was killed at the entrance of his house by the victim’s relative. When the relative of the victim was asked why he killed him, he responded that the man did not even respect the victim’s family and send elders (ሽማግሌዎች – ‘shimaglewoch’) to ask for forgiveness and slaughter a chicken as a symbol of forgiveness. The victim’s relative stated that the man was just sitting in prison and being fed by the government for free. Even though the man was punished according to the law of the land, the years served in prison were not taken as a punishment for the victim’s family. There was a need for restorative justice according to the tradition of the society. The intention of this story is to show readers how important traditional restorative justice is to reconcile and restor relationships.

Similarly, there is a need for restorative justice for the Mai-Kadra genocide. Ethiopia consists of different traditional systems that are accepted by the respective community and bring restorative justice. Thus, the Ethiopian government, especially the Ministry of Peace and the Ethiopian Reconciliation Commission and non-governmental organizations, should carefully identify the tradition and culture of the Mai-kadra society to establish restorative justice and create sustainable peace. We suggest for these institutions to refer to the Rwandan Gacaca Court, which was established after the 1994 Rwandan Genocide, as a benchmark.  Nevertheless, this does not mean that the main perpetrator must not be punished. Of course, they should be punished based on international and national laws. However, to create sustainable peace in Mai-Kadra and the surrounding community, it is essential to simultaneously initiate the appropriate traditional restorative justice process.

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[i] Still new bodies and graveyards are being searched and found since the preliminary report of Ethiopian Human Rights Comission was published on November 24, 2020.

[ii] Ethiopian Human Rights Commission. November 24, 2020. Tigray: Maikadra Massacre of Civilians Is A Crime of Atrocity. Retrieved on November 28, 2020 from https://docs.google.com/document/d/1vS-0N8xCDZDRAM5lzBAELTVjqfKLrzJha8xpKdqh1OE/edit?fbclid=IwAR04Bq7I8i0hIPj4yIipkt8OhJxwsyTcUnM_6IdOv9AIiueJVQUSwdk8wsA

See also Amnesty International. November 12, 2020. Ethiopia: Investigation reveals evidence that scores of civilians were killed in massacre in Tigray state.

[iii] BBC. March 17, 2016. How do you define genocide? Retrieved from https://www.bbc.com/news/world-11108059

[iv] UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, United Nations.  Retrieved from https://www.ohchr.org/en/professionalinterest/pages/crimeofgenocide.aspx

[v] The Criminal Code of the Federal Democratic Republic of Ethiopia. 2004. Article 269.

[vi] Of course, sentences have multi-purpose . For instance, in addition to punishing the wrongdoer, sentences are used to serve as a warning to prospective wrongdoers and to rehabilitate the wrongdoer.