Recently, the Ethiopian Human Rights Commission (EHRC) released a report on the war crimes committed by the TPLF and the Ethiopian government and its allies. The report noted that war crimes had been committed in Amhara and Afar regions and rebel fighters who surrendered to government forces have reportedly told the media that, “I was compelled to commit crimes…..”
With similar accounts heard in such frequency, I believe the public as well as victims of war crimes, will start to question; “Do soldiers who obey orders to commit criminal acts not held legally responsible? Does I was ordered to commit crimes,” exonerate them from criminal liability?”
According to Ethiopian and international criminal laws, both sides (government troops and TPLF fighters) are obligated not to attack non-combatants during hostilities anywhere, under any circumstances. If they do, they would be held responsible for their actions. For those who claim to have been following orders from their superiors, to what extent should they be held accountable?
Pursuant to Article 74 (1) of the Ethiopian Criminal Code, a subordinate is criminally liable if he was aware of the illegal nature of the order; in particular, if he knew that the order was given without authority or knew the criminal nature of the order. The Ethiopian law stipulates that a soldier who commits a criminal act under the above-mentioned conditions is accountable for his unlawful actions.
It is further codified in the Geneva Convention Protocol 2 and Article 33 of the International Criminal Court (ICC) that as far as the above-mentioned crimes are concerned, any perpetrator will be criminally responsible, if he knowingly follows an illegal order.
On the other hand, if an individual commits a crime under duress, Article 74 (2) of the Ethiopian Criminal Code and provisions of international law stipulate that the defendant might have a case in such circumstances.
So, can TPLF soldiers similarly claim, “We were coerced to commit criminal acts”?
Both Ethiopian and international laws: categorize murder, torture, rape, and other acts of violence as illegal. This means that there is a general assumption that everyone knows these actions are criminal and when a subordinate is ordered to carry out such an action and duly follows the order, a defense of ignorance of the criminal nature of the act is inadmissible in a court of law.
On the other hand, after committing the above-mentioned crimes, which are considered illegal under Ethiopian and international laws, a person can invoke the defense of coercion only if he can prove to the court that he has no other choice but to follow a superior’s order.
Since our main point is the claim, “We committed crimes under coercion,” we should consider this in relation to the laws referenced above. The crimes committed include burning of people alive, rape and looting.
So, the commission of the crimes proves that TPLF fighters not only did commit a criminal act, but they committed the act in a manner that would cause severe physical and psychological harm to the victims. From the reports and interviews gathered from victims, the commission of the offenses suggests it is premeditated and well-planned.
But did TPLF soldiers have no choice but obey the illegal orders of their superiors? Let us examine this in the context of Ethiopian and international criminal laws.
Soldiers, to invoke the defense of coercion, they must prove that they had no other choice or that the situation required them to comply with the order immediately and that failure to do so might have resulted in a higher penalty or death or other serious injury.
Analyzing the actions of TPLF combatants vis-a-vis the law, since the crimes took place over a longer period of time, the offenders at least had the opportunity to switch sides by surrendering to government forces or desert their ranks. And they did eschew those opportunities and elected to commit what they did. The fact that they committed several heinous crimes over and over again for months does not prove compulsion, but rather it proves that they committed the crimes willingly.
In a nutshell, TPLF fighters cannot escape criminal liability. Instead, they are fully responsible as per Ethiopian and international criminal laws and the government shall bring them to justice. Victims (both individually and as a group) have the right to see justice done, and the government has to ensure this. Both the public and private media houses should refrain from misinforming the public by playing interviews with TPLF fighters who keep invoking the “coercion card” to avoid justice.
(Shimelash Wondale is legal expert. He can be reached at [email protected]).
Contributed by Shimelash Wondale