(Zeray Wolqait)
Introductory Note
Freedom of press and other mass media and freedom of artistic creativity is guaranteed in Ethiopia. Freedom of the press includes (a) prohibition of any form of censorship and (b) access to information of public interest. Legal limitations can be laid down upon these rights in order to protect the well-being of the youth, and the honor and reputation of individuals, any propaganda for war, as well as the public expression of opinion intended to injure human dignity. Accordingly, any person who violates any legal limitations on the exercise of freedom of thought, opinion, and expression may be held liable under the law.
Article 3 of the Genocide Convention prohibits direct and public incitement to commit genocide. Criminal incitement in general is criminalized under article 36 of the Ethiopian criminal code of 2004. The crime of incitement butts up against the right to freedom of expression. Freedom of press and other mass media must not be so great as to permit the press and other mass media to engage in incitement to genocide. Thus, mass media freedom entails obligations.
In this article, we shall attempt to set out and discuss some of the hate speeches broadcasted by ESAT radio and television as well as their negative impact in Ethiopia. We shall begin with a review of Ethiopian history, which gave rise to forcible assimilation, and may give rise to ethnic loathe speeches. We shall then set out and examine ESAT radio and television ethnic hate speeches and related matters in light of these historical circumstances. Honestly speaking, I would not have been really initiated to write and completed this note had it not been the initiation and support of well-known journalist and blogger Daniel Berhane.
Ethiopian History
Ethiopia, one of Africa’s biggest countries is clearly a geographical, ethnographic, and cultural entity but it is, so to say, a diversified entity. Ethiopia has a recorded history of three millennia. The nineteenth century Ethiopia was marked by the era of princes. Each region having its own kind, ruler or chieftain had been in a state of war with one another as much with the power of imperial power of the centre. The imperial authority of the centre was subject to the perennial tendency of certain regional warlords to become endowed with an aura of legitimacy in their own right, which poses a central theme in Ethiopian politics, i.e. persisting dualism-centralization and regionalism. The tendency towards centralization and the creation of nation-state without regard to cultural pluralism picked up pace in the second half of the nineteen century.
The 19th and 20th Ethiopian state is marked by internal segregation and marginalization of nationalities of Ethiopia. This is begin with the coming of Emperor Minilik II into power after the death of Emperor Yohannes IV (1865-1913), and pursued by Empress Zewditu (1916-1930) and Emperor Haile Selassie (1930-1974). The tradition was broken for a short while in the rule of progressive-minded lij Iyasu (1913-1916). The policy of alienation and segregation followed by the rulers of the central government, had a great impact upon the life of the nationalities in Ethiopia.
As it had been well researched and duly narrated by Jenny Hammond, the alienation and segregation of the people of Tigray was deliberate and cynic when compared to the other peoples in the country. In her own statement, she asks some questions and describes the situation in the following manner. ‘…How did it all start? When did it all start? Why did the revolution begin when it did in February 1975? What were the causes of the uprising? My answer-too stick by far-has been oppression.’ In the 1960s a number of rebellions-where the dissatisfaction with an Amhara (or at least Shoan aristocracy) dominated centralized state was an important fact arose.
Though very complicated, the ethnic composition of Ethiopia has a distinct pattern. The territorial administrative division does not correspond to Ethiopia’s ethnic pattern. Under the Imperial and Derg regimes, which pursued a discriminatory policy on the nationalities question, all this could not but complicate inter-ethnic relations in the country. During these regimes, the provinces were not multi-ethnic and strictly subordinated to the central government. Since the administrative-territorial division can influence ethnic processes, this is an especially sensitive issue for Tigrayans, Oromos, Afars, Sidama and Somalis who are divided by provincial borders into several parts. In countries where the authorities try to eliminate ethnic heterogeneity, the ethno-political situation can become explosive owing to discontent on the part of ethnic groups that are an object of discrimination. Moreover, the main reasons for ethno-differentative processes in Imperia and Derg Ethiopia, for the growth of separatist tendencies among its many nations, for the deepening of ethno-isolationism were the dominance of feudalism and absolute monarchy with its ethno-chauvinism, the oppression of ethnic groups and virtually forcible assimilation.
Another, no less acute problem is that of the inadequate development of standard language, except the Amharic language. The rebellion was inevitable in a country with such acute class and ethno-social contradictions. Centralization was carried a step further with the overthrow of the monarchy and the emergence of the Derg regime. In practice, this led to a continuation of Amhara (or Shoan aristocracy) dominance. The Transitional Period Charter of 1991 came to force immediately after the downfall of the Derg Government. The central cause for the downfall of the military government/Derg regime was the nationality question or national oppression.
As a result, the Derg came under increasing pressure from regional and ethnic resistance movements. It was indeed striking that the major resistance against the Derg regime. Of course, the Ethiopian resistance movement that played the decisive role in the ultimate downfall of the Derg was the Tigray People’s Liberation Front. It is well over two decades since Ethiopia has become a federation. The move towards de facto federal decentralization/non-centralization started in 1991. It was considered that the Transitional Period Charter has served as a precursor to the 1995 F.D.R.E. Constitution. The Ethiopian Constitution perfected the walk toward formal constitutional federalism in 1995. In the Constitution, still, the idea of building unity based on common interests and fostering one economic community under equality; and the principle of self-determination, including secession right were adopted, as they had been part of the Transitional Charter. Ethnic- federalism was introduced to guarantee and nurture confidence among the “nations, nationalities, and peoples” in Ethiopia that were deeply divided by long existed ethnic identities and national oppression.
The ethnic federalism is a new chapter in Ethiopian history and this new approach introduced it carefully and experimentally. For the first time in its three-thousand histories, by so doing, all Ethiopian citizens were made equal irrespective of their ethnic, class, religious affiliations, and any other forms of affiliations or grounds. It must be pointed out that a new legal tunic, even from the best jural tailors, is bound to scratch the social body. Accordingly, it has been considered as a time bomb for the opposition who want the return of the old imperial system.
For us (the oppressed nations), we keep the existing federal system like the internal lens of our eye and we protect it so that it is not affected by any dustbin. Due to this, they started, from its inception, ethnic hatred, and enmity against the Tigray people. These days, in particular, radio and television stations plus social media platforms, operating in and outside Ethiopia, are reporting hatred speeches. In particular, ESAT radio and television broadcasted anti-Tigray propaganda and calling and encouraging for massacres of the population of Tigray and listing or threaten to list people who deserved to die and should be exterminated.
ESAT television and radio are reported and still broadcasting ethnic detestation speeches so many times before, during and after last year crisis in Ethiopia that necessitates the declaration and extension of state of emergency all over the country. In particular, ESAT radio broadcasted hate speech on August 8, 2017 and ESAT television broadcasted ethnic odium speech last year. But no one has formally reacted to these outspoken very serious incitements yet.
Over the past months, much of my personal activity has been focused on how to bring the Genocidaires to book. For that end, we will now take a closer look at the hate speeches of ESAT radio and television targeting the Tigray ethnic group and related matters. Hereinafter, we will set out and talk about ESAT television and radio ethnic abhorrence speeches as follows, one after another.
ESAT Television’s: Anti-Tigray Propaganda
Firstly, we will set out and discuss about ESAT television last year broadcasted ethnic hate speech. Before setting out and examining ESAT television ethnically and politically motivated hatred speech, I would like some preliminary observations about ESAT television establishment, ownership, finance, operation, structure, purpose, composition, and related issues in brief. ESAT television is set up in 2012 abroad, Amsterdam. It is established by the Patriotic Ginbot 7 terrorist group. As a result, Patriotic Ginbot 7 terrorist group (later they call themselves as Patriotic Ginbot 7) able to spread terrorist and genocide messages through the mouth of ESAT. It has no official financing system. It is informally financed by the Patriotic Ginbot 7 itself though its source of income is anonymous, terrorist group, Ethiopian Diaspora supporters of and Patriotic Ginbot 7, foreign non-governmental organizations having political interest in Ethiopia, some Ethiopian foreign enemy states, and others.
All of its operational offices are out of Ethiopia. It has no formal branch or reporter here in Ethiopia. But it report about crisis in Ethiopia on a daily basis. All of its journalists and other workers are opponent of the existing ruling government of Ethiopia. In particular, all of its journalists and other workers are members of and Patriotic Ginbot 7. That is why they frequently move to Eritrea and stay there, in which and Patriotic Ginbot 7 operates. It hardly employs members of the Tigray nation in Ethiopia. It is established for the most part to demonize the Tigray ethnic group and Tigray People’s Liberation Front (hereinafter, TPLF), and thereby overthrowing the existing ruling government of Ethiopia through illegitimate means.
ESAT television, in a public address it made to the people of Gondar, on August 06, 2016, ESAT journalist Mesay Mekonnen broadcasted that “the difficulty that we (Ethiopians) are facing now is not between the oppressor government/regime and the oppressed people, as other countries are facing. What we Ethiopians are now facing is between a small minority ethnic group, representing five percent of the Ethiopian population, who wants to rule Ethiopia subjugating others and the subjugated peoples. And the solution for what we are facing at this time is “drying the water so as to catch (kill) the fish.”
As any reasonable humankind can or should understand from the above piece statement alone, ESAT television clearly declared that the conflict is between the people of Tigray and other ethnic communities in Ethiopia. By saying so, it tried to persuade the public that the existing Ethiopian government is the government of Tigray. Regularly, it use repetitively the terms ‘ Woyane regime’ in order to create a false impression or misleading image that it is formed by the members of Tigray alone.
In this speech, the term ‘water’ was beyond doubt used to mean the Tigray people and the term ‘fish’ was absolutely meant to mean the ruling government of Ethiopia. Accordingly, drying the water so as to catch (kill or control) the fish means exterminating the Tigray ethnic society so as to cause the downfall of the ruling government of Ethiopia. In other words, it means that there is a need to massacre the population Tigray in order to annihilate the TPLF. This was not a call to kill against individual members of Tigray people, but it was a call against the entire Tigray people extermination.
Genocide is the denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings. This call was made to the people of Gondar in particular and Amhara in general. This call was made by Gondar international union using through ESAT television. This was a call for the extermination of the Tigray ethnic community, i.e., the targeted ethnos is Tigray. It called Tigray people as the principal enemy of them and it urged the population (them) immediately to eradicate the sole enemy, as it has defined, in order to remove the ruling government from power.
To put it in a different way, it portrayed the Tigray ethnic group as the enemy, as evil, dishonest, and ambitious. It had disseminated such call in order to create division between the Tigray society and others, in particular with the Amhara ethnic group. Almost instinctively, the viewers and listeners can understand the intention of the message. Obviously, it is possible to say that it had incited and urged violence last year, in some part of the country, by planting, through time, wrong conviction upon the public and by conveying the message that last violence should be used to eliminate the Tigray ethnos, once and for all.
Especially it was made where the country is under exigency situations and where some organized groups (or semi-organized groups) and individuals are attacking, killing, and pulling the Tigrayans, residing in Gondar and Gojam zones of the Amhara region, from the Amhara regional state as well as raiding and plundering their personal properties. To put it in a different form, it called and urged another to engage imminently in conduct in circumstances under which there is a substantial likelihood of imminently causing such conduct. At that time, a terrifying cloud hung over Ethiopia, the consequence of anti-ethnic propaganda by ESAT television last year that was made widely interpreted within the nation state as an incitement to genocide.
Even after this, ESAT television intensified and further spread anti-Tigray propaganda and called, overtly and/or covertly, for the extermination of the Tigray population. ESAT broadcasts are racist and openly inflammatory. Such incitements to extreme dislike and massacre an ethnic group are apparently early warnings of genocide that may follow. Hate propaganda or media is considered as early warnings of genocide.
Patriotic Ginbot 7 and terrorist groups commonly using ESAT to make an atmosphere of terror and hatred towards Tigray ethnos by exaggerated messages, misleading information, and false messages of ethnically based attacks by the ‘ Woyane’ regime, as they label it, against Amhara nationality. ‘Patriotic Ginbot 7’ used it as a weapon in its military campaign. It is not independent operator, but rather carried out by terrorist leaders and other opinion makers who are defining its agenda. It is a tool of Patriotic Ginbot 7 and terrorist groups. ESAT television and radio repetitive use of pejorative descriptions, such as ‘ Woyane government’, ‘corrupted regime’, ‘racist regime’ and so on, became part of the common usage. ESAT broadcasts implanted ideas in listeners and viewers that subsequently caused them to detest, dehumanize, and fear Tigrayans.
The power and role of media in incitement to genocide and terrorism is alarming. Irresponsible Media is seen as the vector by which the poison of racist and terrorist propaganda is spread. Further, media is a voice of authority and that, having issued orders to kill, more likely citizens may obey. In this case, the media’s free expression had developed into genocide. The term seemed to fit. Our choice of terminology may have been more intuitive than reasoned, but history has shown closely we came to the truth. As the prohibition of the ultimate threat to the existence of ethnic groups, it is right at the core of the values protected by human rights instruments and customary norms.
The law is posited from a criminal law perspective, aimed at individuals, yet focused on their role as agents of the State. The centrepiece in any discussion of the law of genocide is the Convention on the prevention and punishment of the crime of genocide, adopted on October 09, 1948. The Convention came into force in January 1951, three months after the deposit of the twentieth instrument of ratification or accession’.
The nation-states have undertaken an obligation to prevent and punish acts constituting genocide. Article 2 of the Convention on the prevention and punishment of the crime of genocide defined ‘acts constituting genocide’:
(a) Killing member of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group; and
(e) Forcibly transferring children of the group to another group.
Article 3 of the genocide convention defined ‘other acts genocide’: (a) Conspiracy; (b) Attempt; (c) Direct and public incitement; and (d) Complicity. To be specific, article 3(c) of the genocide convention prohibits direct and public incitement. Incitement is, of course, a form of complicity (abetting), and that extent it is already covered by article 3(d) of the same convention. But as a general rule, incitement qua complicity, or abetting, is only committed when the underlying crime occurs.
In specifying a distinct act of direct and public incitement, the convention sought to create an autonomous infraction, one that, like conspiracy, is an inchoate crime, in that the prosecution need not make proof of any result. It is sufficient that direct and public incitement took place. Since the purpose of the genocide convention is to prevent and not only to punish genocide, it is necessary to punish direct and public incitement to genocide. Direct and public incitement means urging individual or a number of individuals to take immediate criminal act, as defined in the genocide convention, directly or by technological means of mass communication such as radio and television. ESAT urged the public to murder or annihilate members of Tigray ethnic group.
The genocide convention also stated that the intent to destroy must be directed towards one of the four enumerated groups:
(a) National;
(b) Racial;
(c) Ethnical; and
(d) Religious.
The definition of genocide under the convention obviously applied not only to the destruction of a group but to that of the individuals composing it whenever murder for racial, national, or religious reasons was involved. Naturally, the murder of an individual could not be considered genocide unless it could be proved that it was the first of a series of acts aimed at the destruction of individuals or collectively against the whole group, people or nation or nationality.
The ESAT was intended to fan the flames of ethnic-hatred, resentment, exclusion, segregation, alienation, and fear against the people of Tigray in Ethiopia, as opposed to the people of Tigray in Eritrea, and called the public in general and the people of Gondar in particular to massacre Tigrayans of Ethiopia. It was carried out with the intent to destroy, in whole or in part, the people of Tigray. This clearly indicated its ethnic-hatred on the part of the media and the Gondar association and their very leaders who have deep-rooted detestation and hostility towards the people of Tigray in particular, like the Patriotic Ginbot 7’s leader Berhanu Nega and Gondar diaspora international association leader’s Tamagn Beyene, who are even biased to call the name ‘Tigray’ and anything related to it.
In general, it was direct and public incitement to genocide towards Tigray ethnic entity in Ethiopia as a whole or at least the individuals composing it. Such kinds of acts are punishable under article 3(c) of the Convention on the prevention and punishment of the crime of genocide. Such acts are also punishable acts under domestic criminal legislations. Incitement to genocide is a criminal conduct under articles 36, 274(a), and 269 0f the Ethiopian Criminal Code of 2004.
In addition, terrorizing others by ethnic cleansing propaganda is a criminal act under Ethiopian terrorism proclamation No 652/2009 either. This proclamation has defined terrorist acts in its article 3. Further, article 4 of the same proclamation stipulated that incitement to commit any of the terrorist acts stipulated under sub-articles (1)-(6) of article 3 of this proclamation is punishable with rigorous imprisonment from15 to life or with death. Furthermore, whosoever publishes or causes the publication of a statement that is likely to be understood by some or all the members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to the commission or preparation or instigation of an act of terrorism is punishable with rigorous imprisonment from 10 to 20 years.
Nevertheless, no one has formally or informally reacted to this anti-Tigray propaganda yet. Such propaganda has to be stopped; otherwise the country would become a powder keg. Having said this, then, we will set out and talk about ESAT radio ethnic odium report.
ESAT Radio: Anti-Tigray Propaganda
Before setting out and scrutinizing ESAT radio ethnically and politically motivated abhor speech, I would like to say a few introductory points with respect to ESAT Amharic radio in short. ESAT Amharic radio is established in Washington DC in 2016 by Patriotic Ginbot 7 aiming at inciting ‘ethnic cleansing’ against Tigray in Ethiopia. It is established after last year crisis in Ethiopia. It is an extension of ESAT television. It is opened primarily to intensify and further spread ethnic-hatred propaganda against the Tigray ethnic group assuming or believing that the backbone of the current regime is the people of Tigray, and it could not survive without the hold-up of the Tigray nation from which it arose.
Having said this, we will see and examine ESAT Amharic radio despise speech reported on August 08, 2017 hereinafter.
One anonymous guest appeared before ESAT Amharic radio on August 08, 2017 reported that ‘Here in Bahir Dar, there was Tigrayans’ intelligence cell even before ‘ Woyane’ came to power. After ‘ Woyane’ came to power, this cell has been changed into ‘tsewa’ association form, and this union organized Tigrayans living or found here in Bahir Dar under the guise of ‘Abune Aregawi tsewa’ union.”
After this spoken of the guest, the unknown journalist, at least to my knowledge, of the radio read that” TPLF led government has established four security and intelligence institutions, within the Amhara region, for the purpose of subjugating the Amhara people and the ‘tsewa’ association fully conducting high level covert intelligence work, and feed and supply information as well as report the intelligence information that it has collected to these four security and intelligence institutions, as high level intelligence sources disclosed to the ESAT. This ‘tsewa’ union was known as Tigray cell in Bahir Dar before 1991 and now it is converted into ‘tsewa’ association, and it has engaged fully into high level intelligence function.” This assertion, by way of interrupting the stranger, is a deliberate one in order to impress the audience that the guest had spoken the truth.
Then after, the undisclosed person again came back and said that “the main aim of the tsewa association is intelligence work. The members of the association wholly belong to a single ethnic group. In the past, the main meeting place of the tsewa union is Geyorgis church in Bahir Dar and now they altered it to Kebele 13 of Bahir Dar City. Keble 13 in Bahir Dar is the place of abode of Tigrayans. When they conduct the meeting, the chairperson is a member of TPLF. In this meeting, each and every member of the association will report the information they collected and grasped. There is no area in which members of this tsewa organization may not involve in in other kebeles of Bahir Dar city. The name of the members of the association will be disclosed to the public soon. This union is doing very evil thing in Bahir Dar city.”
Words and sentences as well as manners of reporting are commonly reflecting the inner thought of the speaker, broadcaster or the writer on majority cases, if not always. The Words and forms of sentence construction as well as reporting organization reflect a certain attitude of the user. I believe that there is some reason in what we do- some goal towards which our activity is directed. Media activities are, in particular, undertaken to accomplish some ends. Media activity is purposeful, reflects a commonly shared attitude of the media towards its activities. The media deliberately and repetitively used the word ‘ Woyane’ and said that TPLF is leading the present government. This is, by design, misleading information in order to implant enmity upon the public against Tigray. It is because the ruling party is EPRDF, and EPRDF comprises TPLF, ANDM, OPDO, and SEPDM.
Further, the Radio reported that the TPLF government established four security and intelligence organs within the Amhara regional state specifically for the purpose of subjugating the Amhara nationality. This report was meant to insert resentment and agitation upon the Amhara people against the Tigray nation and TPLF. Furthermore, it has spread that the union of Tigrayans is fully engaged into intelligence task to make effective the mission of the four organs that are established to subjugate the Amhara nation. Again, this is aired to instigate ethnic bloodshed, at least, in the capital city of Amhara. In addition to these, the radio intentionally disseminated or diffused that TPLF is doing intelligence work covertly under the costume of religious association thinking that such kind of allegation and reporting more likely shake the dominantly orthodox Christian residents of the city and thereby violence will spark against members of the Tigray nation living or found in Bahir Dar capital city, which is the capital city of the Amhara National regional state.
When we look the body of the report within the context of story formulation and reporting form, furthermore, everything becomes clear. Clearly, this programme is a call for ethnic cleansing specifically targeting Tigrayans living or found in Bahir Dar capital city. For this end, the media broadcasted that it will disclose the name of the members of the union to the public soon. Otherwise, there is no plausible reason to disclose the identity of the members of the union in issue. If this was not the intention of the guest and the media in issue, further, there is no need of locating the predominant abode of Tigray origins in that city. Furthermore, if it was not a call for ethnic cleansing, there is no any rational cause for disclosing the ethnic composition of the association. Ethnic cleansing may be aimed at towards the protected group as a whole. It may be direct towards the individual members of the protected group either.
Ethnic cleansing is a practice which means that you act in such a way that in a given territory the members of a given ethnic community are eliminated. It means a practice that aims at such and such a territory be, as they meant, ethnically pure. So, in other words, that that territory would no longer contain only members of the ethnic group that took the initiative of cleansing the territory. So, in other words, the members of the other group are eliminated by different ways, by different methods. You have massacres. Everybody is not massacred,
but I mean in terms of numbers, you have massacres in order to scare these populations. Sometimes these massacres are selective, but they aim at eliminating the elite of a given group, but they are massacres. I mean, that is the point. So whenever you have massacres, naturally the other people are driven away. They are afraid. They try to run away and you and yourself with a high number of a given population that have been massacred, persecuted,of course, in the end these population simply want to leave. They also submitted to such pressures that they go away. They are driven away either on their own initiative or they are deported. But the basic point is for them to be out of that territory and some of them are sometimes locked up in camps.
In this context, ethnic cleansing means rendering Bahir Dar town free from Tigrayans by way of force or intimidation, or by any other possible actions, as the case may be. This is an aggressive and so sensitive misinformation out of frustration and ignorance. The use of the spoken word on radio can especially spark genocide agitation and bloodshed. Such provocation is a clear early warning of genocide and terrorism that may pursue. Thus, action must be taken to avert the provocation to genocide and terrorism.
Possible Measures to Insure the Security of the State and its Peoples
Measures must be taken against ESAT radio and television establishment themselves as well as against their journalists and guests/third parties. The possible formal and informal actions, among others, may be:
(1) Prosecution and Punishment before National Criminal Courts in Ethiopia
As the first option, there must be an effort to bring those who are liable under international and/or domestic laws before domestic courts of law. In general, states exercise jurisdiction in the field of criminal law on the five bases: (1) territory; (2) protection; (3) nationality of the offender (active personality); (4) nationality of the victim (passive personality); (5) universality. In our case, Ethiopia has subsidiary jurisdiction under article 17(1) (a) of the Ethiopian criminal Code. Any person who, in a foreign country, has committed an offence against international law or an international offence specified in Ethiopian legislation or specified in an international treaty to which Ethiopia adhered is subject to Ethiopia’s subsidiary jurisdiction. Offences against international law are those prohibited by articles 269- 283 of the Ethiopian criminal Code. Based on the principle of complementary, preferably, genocide offender to be tried before domestic criminal courts. Only when these fail should international jurisdiction become operational.
Article 17 of the ICC Statute can be interpreted as the ICC is complementary to national criminal jurisdictions in cases where national courts are not available or ineffective. Art.17 of the ICC statute provides:
First, having regarded to paragraph 10 of the Preamble and article 1, the court shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.
Second, as a consequence of having concurrent jurisdiction between the ICC and national courts, like ICTY and the ICTR Statutes, the principle of non bis in idem has taken its place in Article 20 of the ICC Statute.
Although the ICC has no primacy, with the aforementioned exception, over national criminal systems in relation to the concept of concurrent or complementary jurisdiction, it has primacy, like the ICTY and the ICTR, over domestic courts with regard to the application of the principle of non bis in idem. In other words, the decision of the ICC precludes subsequent trials before national courts, while the principle of non bis in idem does not preclude a subsequent trial before the ICC in the following two circumstances:
The proceedings in the national court (a)were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b)otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.
Giving the primacy to the ICC in this context should be regarded as in compliance with the spirit of the Statute and paragraph 10 of the Preamble, Articles 1 and 17 of the Statute. This is because in the aforementioned situations in which the ICC has primacy over national courts, they do not act in complying with the enforcement of international humanitarian law. The only way to overcome this matter is to give power to the ICC to conduct a subsequent trial. In the present context, the primacy of the ICC over national criminal courts is an inevitable element for the implementation and enforcement of international humanitarian law. Otherwise, as a result of human nature, the international community could be faced with the danger of international crimes being treated as ‘ordinary crimes’ or proceedings being ‘designed to shield the accused’ or cases not being carefully prosecuted in national courts.
And for that end, if necessary, it is proper to use extradition system to the extent possible. Of course, all of the ESAT journalists and other possibly liable persons reside out of Ethiopia. To the extent the genocide convention contemplates a regime of territorial jurisdiction, and rejects universal jurisdiction, extradition is obviously fundamental to effective prosecution. Yet the wording of the genocide convention presents any obligation to extradite in the most equivocal terms. However, the genocide convention imposes a number of obligations upon states, for which they can obviously be held accountable. From a policy standpoint, however, one or the other system may not always be preferable for genocide prosecution.
One may ask that who are the responsible for criminal incitement to genocide committed through media. Ethiopia has legislated distinct/special criminal participation general rules of law relating to the mass media with a view to ensuring freedom of expression while preventing abuse. As per article 43(3) of the Ethiopian Criminal Code of 2004, liability for crimes committed through broadcasting media shall rest with the person in charge of the programme; failing him, the licensee shall be liable. IF the person who would have been under article43(3) of the Ethiopian Criminal Code of 2004 at the time of publication has not known place of abode in Ethiopia, and if his present whereabouts cannot be ascertained in the prosecution of the case, liability shall pass to the person next to him. In determining the liability of a person under article 43 of the same code for the crime committed through the product of mass media, the content of the matter shall be deemed to have been inserted, published, or disseminated with his full knowledge and consent.
Any person who, by contributing as author, originator, or publisher, to the product published or diffused through mass media, participates in the commission of crimes against humanity (arts. 269-274) shall be liable. In such a case, the provisions of this code concerning participation shall apply to persons who committed the crime as a principal criminal, an instigator, or an accomplice. As per article 46 of the same Code, the punishment of any criminal listed in the order fixed by law shall not exclude the criminal liability of the juridical person. Further, article 41 of Proclamation No 590/2008 stipulated that the media establishment may incur joint criminal or civil liability with the responsible person under article 41 of the Criminal Code of Ethiopia. Generally speaking, the person in charge of the programme, editor-in-chief, media establishment, distributor, author, originator, and publisher would have been liable for the crimes committed by way of mass media. For this end, anyone can lodge a criminal complaint or accusation against those who are liable in our case before the federal criminal investigation bureau or federal attorney general in Ethiopia. Of course, article 13 of the terrorism proclamation No 652/2009 imposes an obligation to disclose terrorist acts.
(2) Prosecution and Punishment before International Criminal Court
Alternatively, there must be endeavor to bring those who are responsible to direct and public incitement to genocide before international penal tribunal, ICC. Where national criminal courts are not able or are not willing to act to prosecute and punish those who committed the most serious crimes of international concern, ICC exercises its jurisdiction. This is the natural result of the principle of sovereignty of states in international law. According to article 5 of ICC statute, ICC has jurisdiction over the following crimes: (a) the crimes of genocide; (b) crimes against humanity; (c) war crimes; (d) the crime of aggression.
There are multiple trigger mechanisms of the ICC by which the jurisdiction of the court can be set up. The trigger mechanisms of the ICC are regulated under article 13 of the ICC statute. According to this article, the ICC can exercise its jurisdiction over the crimes where there is a reference by a state party, the ICC prosecutor, or the Security Council to the ICC. Article VI of the genocide convention mandates prosecution before international penal tribunal as may have jurisdiction with respect to those contracting parties which shall have accepted its jurisdiction. Article 9 of the genocide Convention stipulated that international criminal justice has jurisdiction over disputes with regard to the interpretation, application or fulfillment of the convention and its jurisdiction includes the disputes relating to the responsibility of states which may arise out of breaches of articles of the genocide convention.
(3) Prosecution and Punishment before the Foreign States
As the third alternative, the Ethiopian government or any other concerned body may lodge criminal complaint or accusation before the foreign states and in which ESAT television and radio is registered and operates as well as resident states of the journalists of ESAT( USA and Netherland) as well as before the foreign states in which they enter and move ; and
(4) Counter-Propaganda
The Ethiopian government must reply to anti-ethnic propaganda for the purpose of correcting the misinformation reported by any non-government media. Where any information or matter that may injury the government or any protected group, the government should made a reply for correction and thereby defeating ill-purpose of the reporter.
(5) Protecting the Exposed Ones
As per article 13 of proclamation No 652/2009, the government has an obligation to protect the group or the individuals exposed to terrorist acts. Thus, the federal and regional state governments should protect them by all possible methods and techniques. In our case, the Tigrayans residing in Bahir Dar, at least Tigrayans living in kebele 13 of the town should be protected by the federal and regional state governments from terrorist attacks that may pursue.
(6) Jamming
As the last resort, the government of Ethiopia must order its security and bureaucracy that action must be taken to stifle or jam the ESAT television and radio to the extent possible.
Concluding Note`
ESAT direct and public incitement to genocide in Ethiopia is the topic of this note. ESAT, day and night, is calling, urging, supporting or financing, and encouraging the public for Tigray ethnic group cleansing by different techniques. It is releasing racist poison against Tigray. The source of this anti- Tigray propaganda is the irreplaceable/critical role that the people of Tigray played in crashing the old imperial system beyond repair. In Ethiopia, ethnic cleansing is used as an instrument of national-state creation/building during the imperial and Derg regimes. This nation-destroying imperial and military system mainly buried under the concrete grave by the blood and sweat of the Tigray people. It is possible to say that the substantial part of the fought against Derg junta was occurred within the Tigray soil.
The Tigray people, among others, are on the forefront to maintain the existing multicultural federal system like the internal lens of our eye and they defend it so that it is not affected by any dust bin. Those who have old imperial and junta nostalgia demand that we the oppressed nationalities to agree to the replacement of the old imperial system that is exposed the disintegration of the country. But each and every attempt that may strive, whether from within and from outside, to denigrate the process and return the old politics of forcible assimilation, only make us (the oppressed nations) more defiant and more determined to express ourselves through the vote
All along, we the oppressed peoples have had to struggle to protect our interest to do what is best for us, and we will, without any doubt, continue to do so. Each and every nationality in Ethiopia has to contend with attempts, be covert or overt, to compel us to live on someone else’s conditions. Due to this role and commitment of the Tigray people, they started, from its inception, ethnic hatred, and enmity against the Tigray nation in Ethiopia.
Direct and public incitement to commit genocide and terrorism may be perpetrated even if nobody is actually incited to act. Inchoate offences are particularly important in the repression of genocide because of their preventive role. The seriousness of genocide and its dire consequences for humanity compel the application of the law before the crime actually takes place. In order to take effective measure, knowledge of the perpetrator, his intentions, and behavior-is needed.
Getting some insight into the perpetrator makes prevention possible. It is the situation on the ground that should be seen as the determining factor in deciding whether or not to take action. Therefore, there is a need of prompt and effective prosecution of those responsible for the crime of incitement to genocide and terrorism before international penal tribunal and national criminal court, among others.
The responsibility to keep any protected group from genocide and terrorism in general rests upon the state. The state must suppress genocide propaganda or incitement through media for the purpose of preventing genocide. Genocide is the ultimate threat to the existence of the protected group as a whole and thus, a government of any state should pay attention to such cases in particular.
When the states become passive in terms of genocide prevention, genocide begins. It is precisely this passivity and inertia which threaten our societies. Thus, the Ethiopian government must play the leading role in this regard. Further, let’s all of us make sure that those who struggled and perished to build this new Ethiopia, and to liberate the oppressed nationalities, did not sacrifice in vain. Choosing to see the value in each other is a precious gift, which anchors us firmly and confidently in our rightful place in this planet.
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