REQUESTING AN INVESTIGATION BY THE INTERNATIONAL CRIMINAL COURT OF DR. TEDROS ADHANOM GHEBREYESUS
Filed by email Dec. 1, 2020, GMT 16:00
This communication concerns actions by Dr. Tedros Adhanom Ghebreyesus (“Tedros”) that are inconsistent with international criminal law. Tedros is an Ethiopian national who is presently employed as the Director-General of the World Health Organization (“WHO”). The communication alleges crimes against humanity (“crimes”) as defined by the Rome Statute of the International Criminal Court.[1]The communication alleges that the crimes were committed by Tedros himself, jointly with others, and/or by individuals he effectively controlled, including but not limited to the Ethiopian security forces, civil servants, regional paramilitaries, and local police (“Subordinates”).
Background
Tedros was a senior official in, and one of the major decision makers for, the Tigrayan People’s Liberation Front (“TPLF”), an ethnic based political organization that effectively controlled Ethiopia’s national and regional governments from May 1991 to April 2018. The TPLF’s hold on power in Ethiopia relied on election fraud, violence, and intimidation.
Tedros was complicit in and a major actor in these activities during the regime’s latter years. Prior to his 2017 election as Director-General of the WHO, Tedros was, from 2012-2016, Ethiopia’s third highest official as foreign minister and a member of the eleven-person TPLF Executive Committee that controlled the actors who carried out these actions. He was, “[w]ith the retirement of the old guard within the Tigrayan People’s Liberation Front (TPLF)…one of three influentialnewcomers at the helm of Tigrayan politics in the emerging post-Meles-Zenawi era.”[2]
In his posts, Tedros joined other senior TPLF officials in a common plan and purpose to use his authority over Subordinates, in whose control he shared, to maintain the TPLF’s hold on power by any means, including in the commission of inhumane actions and other actions that constitute crimes against humanity.
Tedros’ Control Over Security Forces 2013-2015
By virtue of his being a senior TPLF official, Tedros was one of just a handful of Ethiopian officials who exercised control over the Security Forces. He was a crucial decision maker in relation to their actions that included killing, arbitrarily detaining, and torturing Ethiopians.
The United States Department of State Human Rights Reports for 2013, 2014, and 2015 recount that the Ethiopian authorities “maintained control over the security forces … [and that] … Security forces committed human rights abuses.”
Tedros was a decision maker who exercised and shared control over the Ethiopian security forces between 2013 and 2015.
Government Control Over Security Forces in 2016
With respect to 2016, Tedros’ last year in power, U.S. State Dept. Human Rights Practices Report for Ethiopia states that “Civilian authorities at times did not maintain control over the security forces, and local police in rural areas and local militias sometimes acted independently.”
Even if one gives the government the benefit of a doubt and, arguendo, liberally assumes all the reported 2016 crimes such as “ excessive force against protesters throughout the year, killing hundreds and injuring many more… arbitrary killings; disappearances; torture and other cruel, inhuman or degrading treatment or punishment,” were committed by uncontrolled security, police or militia elements, other documented crimes in that report were of a type which the government facially did control. This latter category included, but was not limited to, “unfair government tactics, including intimidation of opposition candidates and supporters…more than 10,000 persons were believed still to be detained…. harsh and life-threatening prison conditions; arbitrary arrest, detention without charge, and lengthy pretrial detention… infringement on citizens’ privacy rights, including illegal searches; a lack of participatory consultations and information during the implementation of the government’s “villagization” program; restrictions on civil liberties including freedom of speech and press, internet freedom, academic freedom and of cultural events, and freedom of assembly, association, and movement; interference in religious affairs; only limited ability of citizens to choose their government; … restrictions on activities of civil society and NGOs…”
Therefore, Ethiopian senior government leadership, including Tedros, controlled Subordinates who committed one or more crimes in 2016 in addition to those committed 2013-2015.
Control Over Civil Servants
Civil servants under the control and command of Tedros also committed crimes by implementing a government policy of inequitable ethnic discrimination in the distribution of public goods necessary to sustain life, such as food aid, investment, agricultural inputs[3], and healthcare.[4],[5]
Civil servants under Tedros’ command also maintained and perpetuated an apartheid system.[6]
Liability for Somali Regional Police
The 2013-2016 U.S. State Department Human Rights Practices Reports for Ethiopia also state that the Somali Region Special Police, also known as the “Liyu,” “sometimes acted independently” in committing crimes. However, the regime’s actual control of the Liyu, and knowledge of the Liyu’s crimes, were demonstrated in 2018 when reformist Prime Minister Abiy Ahmed came to power. Abiy arrested the administrator of the Somali region, Abdi Omar (a.k.a. Abdi Illey), who had used the Liyu to terrorize the local population, and informed the public about the Liyu’s crimes. Abiy also reined in other police and local militia.
Abiy’s demonstrated ability to control such forces proved that the predecessor Ethiopian regime which Tedros co-led could have controlled them too. It may thus reasonably be inferred that Tedros and his co-leaders also could have stopped—or at least tried harder to stop–some or all the crimes by Somali Regional Special Police and other local militias and police but failed to do so.
Some liability for the crimes of the Somali Regional Police, local police and local militias committed 2013 to 2016 must therefore be apportioned to Ethiopia’s federal government in which Tedros played so influential a part.
Knowledge of an Ongoing and Predictable Pattern of crimes
It was impossible for an Ethiopian foreign minister, TPLF Executive Committee member and long-term TPLF member to be unaware that the TPLF had been committing crimes for a long time and would probably continue to do so as long as it remained in power.
For example, the annual human rights reports listed in the Supplementary Evidence section below cover Tedros’ four years in power. (2012 is excluded because he assumed his post near its end.) However, one only need google the Amnesty International, Human Rights Watch and US State Department Ethiopia Human Rights reports for the 22 years of TPLF rule preceding Tedros’ ascension to power, during nine of which Tedros himself also served as Deputy Minister and Minister of Health, to see the prevalence and trend with respect to TPLF crimes and those of its controlled or partly controlled proxies.
During the long course of Tedros’ rise through the ranks of TPLF officialdom, TPLF crimes were often reported in well-known and popular media such as Ethiopian Satellite Television (ESAT),Voice of America, BBC, Deutsche Welle, Washington Post, New York Times, Ethiopian Review and many more.
Many TPLF crimes were widely known and discussed daily by the general Ethiopian public since 1991.
The inevitable discussion of governmental affairs with other senior Ethiopian leadership, foreign diplomats and politicians also had to make Ethiopia’s foreign minister aware that his government’s crimes were frequent and ongoing.
As a senior leader and Executive Committee member, Tedros had to receive intelligence briefings that included mention of crimes committed by Subordinates, himself and/or jointly with others.
International human rights activists often wrote letters to Ethiopia’s government concerning human rights cases.
It was therefore impossible for any educated Ethiopian, especially a highly educated, well connected, and powerful top leader like Tedros, to be unaware of the long, ongoing, and predictable pattern of TPLF crimes.
Throughout his tenure as a senior Ethiopian leader, Tedros therefore obviously knew or consciously disregarded information that clearly indicated that his Subordinates were committing, or were about to commit more, crimes.
Failure to Take Necessary Measures
The above-mentioned U.S. State Department Human Rights Practice Reports for 2013, 2014, and 2015, and, to a lesser extent, 2016 establish that a pattern of crimes existed of which Tedros had to be aware.
The same reports also show that Tedros could have stopped—or at least could have reasonably tried harder to stop– the documented crimes by Subordinates during the aforesaid period but failed to do so.
For example, the U.S. State Department Country Reports on Human Rights Practices for 2013-2016 state, “Impunity was a problem. The government, with some reported exceptions, usually did not take steps to prosecute or otherwise punish officials who committed abuses other than corruption.” [emphasis added]
Obviously, despite his evident knowledge of the well-publicized crimes committed and reasonably expected to be committed in future by Subordinates, Tedros never resigned. He never spoke out or objected publicly to any crimes, including from the start of his prominent government service in 2003 as Deputy Health Minister.
Thirteen years of silence and active cooperation with a regime show constructive support for that regime’s policies and actions.
Tedros’s acts of commission and omission demonstrate that he failed to take all necessary and reasonable measures within his or her power to prevent or repress the commission of crimes or to submit the matter to the competent authorities for investigation and prosecution as required under Article 28.
To the contrary, the abovementioned actions by Tedros demonstrate his wholehearted and willing adherence to, and support, for TPLF policies, actions and Subordinates that caused, directed, facilitated, or enabled crimes.
Genocide Committed by Tedros’ and Those Under His Control (Article 6)
The Supplementary Evidence shows that Genocides by Tedros’ Subordinates included:
(a) Killing, and causing serious bodily and mental harm to, members of the Amhara,[7]Konso,[8] Oromo and Somali tribes with intent to destroy those tribes in whole or in part. (For proof, see following section and Supplementary Evidence below.)
(b) Ethnic discrimination in the allocation of life-saving public goods despite knowledge that their denial would cause the disproportionate and avoidable death and injury of political or non-Tigrayan ethnic groups. (For proof, see following section)
(c) Imposing measures intended to prevent births within the Amhara tribe. (For proof, see (g) in following section.)
Tedros’ crimes therefore fall within the jurisdiction of the ICC under Article 6.
Crimes Against Humanity Committed by Tedros’ Subordinates in Violation of Article 7
The Supplementary Evidence to follow shows that the four-year period in which Tedros co-led Ethiopia’s government was marked by widespread or systematic crimes Against Humanity by Subordinates directed against the Amhara, Oromo, Somali, and Konso tribes, members of opposition parties and other civilian populations, with knowledge of the attack. These included:
(a) MURDER of political dissidents. See additional reports here, here, here and here. (Also see Supplementary Evidence below)
(b) Intentional infliction of conditions of life, inter alia ethnic discrimination in the allocation of life-saving public goods despite knowledge that such action would bring about the partial destruction of non-Tigrayan populations and members of opposition political parties amounting to EXTERMINATION. (See also here, Sec. B, para. 3: “The government favors Tigrayan ethnic interests in economic and political matters, and the Tigrayan People’s Liberation Front dominates the EPRDF [federal government].”)
(c) FORCIBLE TRANSFER of populations to make way for real estate transactions benefitting the TPLF political elite. See also here, here and here.
(d) Unlawful imprisonment, including children, in cruel and inhuman conditions that violated fundamental international law. (Also see Supplementary Evidence below)
(e) TORTURE of political prisoners. (See additional reports here, here and here and Supplementary Evidence below. Also see putting political prisoners in cells with wild animals by Liyu police.)
(f) Mass RAPE by Ethiopian soldiers and/or controlled regional paramilitaries, including “break and rape” (the practice of rape after breaking limbs). (Also see Supplementary Evidence below)
(g) FORCED STERILIZATION of Amhara women.
(h) ENFORCED DISAPPEARANCE of persons kidnapped or murdered by security or paramilitary forces. (See p. 1 “hundreds, likely more, have been victims of enforced disappearances.” Also see Supplementary Evidence below)
(i) Intentional and severe deprivation of fundamental rights of non-Tigrayan ethnic and members of opposition parties contrary to international law by reason of the identity of the group or collectivity amounting to PERSECUTION. (Also see Supplementary Evidence below showing the crimes were disproportionately committed against non-Tigrayans.)
(j) Systematic oppression and domination by the TPLF over Ethiopia’s other ethnic groups with the intention of maintaining the TPLF regime amounting to APARTHEID. (Facially evident from political disenfranchisement of non-Tigrayans in an arrangement of “States…structured on the basis of settlement patterns, language, identity and consent of the people.” Article 46 (2) of the “Ethiopian” (actually, TPLF-imposed) constitution. (Also see Supplementary Evidence below)
(k) OTHER INHUMANE ACTS, such as Subordinates’ beating, slapping, kicking, threatening, and intimidating members of political opposition parties that intentionally caused great suffering, or serious injury to body or to mental or physical health.[9](See Supplementary Evidence below for examples.)
Many of the abovementioned crimes occurred in a pattern, volume and duration that amounted to widespread or systematic attacks directed against a civilian population, with knowledge of the attack or inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or mental or physical health.
Tedros’ crimes therefore fall within the jurisdiction of the ICC under Art. 7.
Tedros’ Crimes Were Part of a Plan or Policy Pursuant to Article 8(1)
Tedros’ actions were not isolated incidents. They were part of crimes that the totality of human rights reports (see Supplementary Evidence below) establish were so widespread, frequent, and predictable so as to demonstrate the existence of a plan or policy or a part of a large-scale commission of such crimes that demands prosecution pursuant to Article 8(1) of the Rome Treaty.
Firsthand Evidence
The files of the major human rights organizations are filled with firsthand testimony by victims of Tedros’ Subordinates with names and contact information. Here, for example, is one of many available firsthand accounts by torture victims.
Many more firsthand witnesses can be found by investigators, inside and outside Ethiopia, particularly if witness protection is available.
There is direct, open source, photographic and video evidence of crimes by Tedros’ Subordinates, including murder and torture, in news media and the files of human rights organizations such as Human Rights Watch.
There is at least one firsthand eyewitness to kidnapping arrangements made by Tedros, a former bodyguard.
Supplementary Evidence of Superior Liability
Taken as a whole, especially in the context of the twenty-two years of prior human rights reports documenting similar crimes (omitted here but available online), the following annual human rights reports for 2013-2106 demonstrate a pattern of crimes so systematic, widespread, and predictable as to manifest a permissive, intentional government policy often carried out by Tedros’ Subordinates:
Amnesty International USA Annual Report Ethiopia 2013
Amnesty International Report Ethiopia 2014/2015
Amnesty International Country Report Ethiopia 2016/2017
Human Rights Watch Country Report for Ethiopia 2013
Human Rights Watch Country Report for Ethiopia 2014
Human Rights Watch Country Report for Ethiopia 2015
Human Rights Watch Country Report for Ethiopia 2016
U.S. State Dept. Country Report on Human Rights Practices: Ethiopia 2013
U.S. State Dept. Country Report on Human Rights Practices: Ethiopia 2014
U.S. State Dept. Country Report on Human Rights Practices: Ethiopia 2015
U.S. State Dept. Country Report on Human Rights Practices: Ethiopia 2016
See also:
The Amhara Genocide Ignored by the World (Please refer only to crimes 2013-2015.)
Supplementary Evidence of Individual Responsibility and Mens Rea
As foreign minister and Executive Committee member, Tedros advised, shared information with, guided and helped manage the Ethiopian government despite his knowledge that: a) it often committed crimes and b) was likely to do so again in the future.
Tedros personally arranged the widespread and systematic kidnappings of hundreds of Ethiopian dissidents in Yemen. This news account is corroborated by the pattern of kidnappings that began after the meeting. These included kidnapping of dissident and British citizen Mr. Andy Tsege, from Yemen while in transit and rendering him to death row.
Tedros suppressed and withheld vital information about his people’s humanitarian needs by peddling fake statistics that only 29% of Ethiopians lived in poverty under the EPRDF and attempted to cover up a famine in order to protect his government’s reputation. His acts contributed to the loss of many lives by delaying or distorting effective international response.
Tedros’ failure to report, stop, prevent, or even try to prevent Illicit Financial Outflows controlled by the government caused the waste of life-saving foreign aid from signatory states.
Tedros misrepresented his country’s human rights situation to foreign donors and publics who might otherwise have reduced or curtailed their funding if they had known the truth. In this 2015 CNN interview, for example, Tedros is on tape attempting to “spin” the EPRDF’s human rights record. (CNN interview)
Here, on his own blog, he attempts to whitewash a 2016 massacre.
Here, Amnesty International exposes the falsity of his claim that “Ethiopia has won the respect and trust of the world” for human rights.
Tedros’ misrepresentation, withholding, and suppression of vital information about Ethiopia’s human rights situation helped himself, colleagues and Subordinates who had committed crimes to hide their guilt and avoid accountability. His fraudulent conduct facilitated and enabled the TPLF’s crimes by polishing the regime’s international image and deflected foreign and domestic attempts to hold the government accountable. It perpetuated the government’s abuses by helping the regime obtain foreign loans and grants under false pretenses. He was the charming public face of a homicidal dictatorship and played a major role in keeping it afloat.
Tedros’ Superior Responsibility for crimes Against Humanity and Genocide Committed by His Subordinates in Violation of Article 28
The foregoing shows that as Ethiopia’s third highest official and TPLF Executive Committee member during the period in question, Tedros:
a. jointly shared effective control over military, paramilitary and civilian Subordinates.
b. knew, or consciously disregarded information which clearly indicated, that his Subordinates were committing or were about to commit crimes within the jurisdiction of the Court.
c. individually or jointly had effective responsibility and control of activities which the crimes concerned; and
d. failed to take all necessary and reasonable measures within his power to prevent or repress said crimes’ commission or to submit the matter to the competent authorities for investigation and prosecution.
Tedros therefore is criminally responsible for one or more crimes committed by Subordinates under the Doctrine of Superior/Command Responsibility per Article 28.
Tedros’ Individual Responsibility for Crimes Against Humanity and Genocide Committed in Violation of Article 25
25(3)(a) of the ICC Statute extends to “responsible,” or non-innocent, agents. The modality of “control over the organization,” has been found suitable to address the involvement of high-level individuals who usually leave the physical commission of violent crimes to lower level perpetrators.
The ICC thus has jurisdiction over Tedros as a natural person pursuant to Article 25 because he:
(a) committed a Crime within the jurisdiction of the Court.
(b) committed such a Crime, as an individual, jointly with another or through another person.
(b) ordered, solicited, or induced the commission of such a Crime which in fact occurred or was attempted.
(c) for the purpose of facilitating the commission of such a Crime, aided, abetted, or otherwise assisted in its commission or its attempted commission, including providing the means for its commission. For example, Tedros shared responsibility and control over funding of security and paramilitary forces that committed crimes. He helped obtain foreign grants, loans or other forms of foreign support that were used to perpetrate crimes directly or indirectly. He also deflected international criticism in a way that made it easier for crimes to be committed.
(d) contributed to the commission or attempted commission of one or more crimes by a group of persons acting with a common purpose. Such contribution was intentional and was either: (i) made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involved the commission of a Crime within the jurisdiction of the Court; and/or (ii) was made in the knowledge of the intention of the group to commit the Crime.
Tedros therefore is criminally responsible for one or more crimes committed by Subordinates under the Doctrine of Individual Responsibility per Article 25.
Tedros’ Mental Element Pursuant to Article 30
Tedros’ own words and deeds on the record, such as his documented attempts to “spin” the TPLF’s crimes, demonstrate that he:
(a) meant to engage in his conduct, and
(b) meant to cause the expected consequences or was aware that they would occur in the ordinary course of events.
Recent interpretations of Articles 25 and 30 of the ICC Statute by the Pre-Trial Chambers of the International Criminal Court demonstrate that the Court adopts a broad interpretation of the common plan or agreement element.
Under that interpretation, or even a narrower one, Tedros is criminally responsible and liable for punishment for crimes within the jurisdiction of the Court because the crimes’ material elements were committed with his intent and knowledge.
Injuries to Ethiopians Caused by Tedros’ crimes
It is no exaggeration to say that millions of Ethiopian and other nationals’ lives were negatively impacted by Tedros’ crimes.
Hundreds of thousands of victims, many of them children, died or, in many cases, suffered permanent physical or psychological harm as a result of torture, persecution, extermination, genocide, unlawful imprisonment and other crimes by Subordinates directed against them, family members, caregivers or family breadwinners.
It may reasonably be inferred that thousands of impoverished Ethiopians suffered or died because of Tedros’ misrepresentation of Ethiopia’s economic statistics that delayed or distorted foreign aid.
The billions of dollars siphoned out of Ethiopia’s economy by political elites and their business partners as Illicit Financial Outflows, approximately 10 to 15 billion dollars of which took place while Tedros co-led the country, delayed the country’s achievement of several Millennium Development Goals. On the ground, that delay meant thousands of deaths, many or most of them infants or children.
Ethnic discrimination in the distribution of life saving public goods under Tedros may reasonably be inferred to have cost, or otherwise negatively impacted, hundreds of thousands or even millions of lives among non-Tigrayan tribes.
The ICC Has Jurisdiction
This complaint alleges crimes under the Rome Statute of the International Criminal Court (1998), namely crimes against humanity (art. 6). This vests jurisdiction in the Court ratione materiae.
With respect to jurisdiction ratione loci, pursuant to Articles 12 and 13 of the Rome Statute, the Court may exercise its jurisdiction over international crimes if its jurisdiction has been accepted by the State on the territory in which the crimes were committed. One or more countries injured by the above-described crimes are signatories to the Rome Statute, including Switzerland where Tedros resides, works and is often present.
At least one legal expert asserts that “a close examination of the text of the European Convention, its legislative history, and the writings of experts on its application reveal that the Convention does in fact permit transfer of proceedings in the absence of the consent of the state of nationality.” The ICC’s Jurisdiction Over the Nationals of Non-Party States: A Critique of the U.S. Position, Scharf, Michael P., Case Western Reserve University School of Law Scholarly Commons, 2001.
Despite Ethiopia being a non-signatory to the Rome Statute, the ICC thus has territorial jurisdiction over Tedros’ crimes in Ethiopia under the “effects doctrine” which gives the ICC jurisdiction when a signatory state has been injured in some way by the crime in the non-signatory state (Ethiopia). See S.S. Lotus (Fr. V. Turk.), 1927 P.C.I.J., (Ser. A), No. 10 (noting that many countries will find jurisdiction for criminal acts done in another state if their effects are felt within its borders).
In an important precedent case, the International Criminal Court found on September 6, 2018 that the Court may exercise jurisdiction over the crime of alleged deportation of the Rohingyas from Myanmar to Bangladesh although the alleged crime had been committed in Myanmar which is not a State Party. (ICC Dec. No. ICC-01/19 of 14 November 2019) The Pre-Trial Chamber relied on some “elements of the crime” occurring in Bangladesh, a State Party.
Article 12(2)a of the Rome Statute confers jurisdiction on the ICC if “one or more (of the following) States are parties to the Statute…a) The State on the territory of which the conduct in question occurred.” The Chamber interpreted the word ‘conduct’ as a broad term that includes the consequences of the act.
The jurisdiction of the Court in the Rohingya case thus relied on, and reaffirmed, the “effects doctrine.” Even though that was not explicitly stated, the Chamber referred to the case United States v Aluminum Company of America (ALCOA) et al, 148 F.2d 416 (2nd Cir., 12 March 1945) in which a US Federal Appellate Court first enunciated this doctrine, noting that “any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders, which the state reprehends.”
Because over 1 million Rohingya refugees had sought refuge in Bangladesh, one of the most densely populated regions of the world, the Court implied that even if the elements of the crime were not present in its territory, the effects of the crime of deportation did manifest in Bangladesh, which is a State party. This aspect allowed the Court to conclude that it has jurisdiction over the dispute.
The instant matter is comparable. A 2016 UNHCR report on forced displacement lists Ethiopia as the world’s sixth-highest generator of refugee migrants to other countries, many or most of which were member states. The resulting financial harm to member states by Ethiopian migration was compounded by the high number of unaccompanied or separated children.
Most Ethiopian refugees were motivated by economic forces, But Tedros is responsible for Ethiopian crimes, summarized herein, that forced more than 13,000 Ethiopians to flee between 2013 and 2016 specifically due to fear of ethnic or political persecution[10],[11] (as opposed to those migrating for economic reasons[12],[13]) to the territory of multiple member states, including those of Western Europe, Canada and Australia. As experts , Cindy Horst and Maimuna Mohamud wrote, “[g]overnments like Eritrea, Somalia, Ethiopia, South Sudan and Sudan… have policies and political systems that directly render them responsible for creating conditions that produce asylum seekers…”[14],[15][emphasis added]
Ethiopians fleeing persecution under Tedros imposed hosting costs on European states like France. In her article, Ethiopians who fled over land rights now face eviction from Calais “Jungle (OCTOBER 24, 2016), Sally Hayden of the Thomson Reuters Foundation, describes how other member states suffer similar costs, “… many other Oromo have come and gone from Calais – some as young as 12 or as old as 65. Many lose hope of reaching Britain and instead go to the Netherlands or Germany…”
Their forced, often illegal, flight abroad inflicted financial harm on those member states forced to increase border protection and process asylum seekers.
Once arrived in the member states, the involuntary asylum seekers continued to be subjected to fear and trauma by news from home of fresh crimes, for which Tedros also shares responsibility, that prevented their return home and continued to impose financial burdens on their host member states, such as for food, shelter and medical care.
A specific example of financial harm is the EU-Horn of Africa Migration Route Initiative. Horst and Mohamud describe the connection between the underlying crimes and the costs inflicted on member states:
“By giving Horn of Africa countries far greater resources and responsibility to manage and control migration, EU countries evade the pressures they face as liberal states …this is a very unwelcome trend for the refugees that are among those crossing the Mediterranean, whose main aim it is to find protection from persecution and violent conflict in the Horn of Africa.” [emphasis added] Unlikely Partners: The EU-Horn of Africa Migration Route Initiative – PRIO Blogs, Cindy Horst and Maimuna Mohamud, April 22, 2015
The Institute for Security Studies report, Ethiopia’s refugee response…Focus on socio-economic integration and self-reliance’ in East AfricaReport (Tsion Tadesse Abebe, 19 October 2018) also describes how, in 2016, the EU was compelled to include Ethiopia in its list of 16 ‘priority’ countries that would be given financial support to reduce the arrival of migrants and refugees in Europe.
In addition to forcing donor member states to spend money on asylum seekers, Tedros crimes wasted much of member state foreign aid to Ethiopia. It is well established that the TPLF’s policies during Tedros’ co-leadership caused political and social instability. Logic dictates that such instability inevitably had to mitigate against the poverty reduction goals that foreign donor aid supported. Tedros’ crimes thus also harmed member states by increasing the amount of humanitarian aid required from them.[16]
In Rapid fragility and migration assessment for Ethiopia Literature Review (February 2016), for example, authors Becky Carter and Brigitte Rohwerder explain, “Foreign aid has been credited with contributing to Ethiopia’s development, although it has also been criticised for supporting programmes that are claimed to have contributed to displacement.” [emphasis added]
The report goes on to state that, “The effectiveness of donor support in helping to meet development challenges will depend on the Ethiopian government improving governance, empowering local authorities, and becoming more accountable to its citizens.”
However, as the human rights groups report, the government in which Tedros played so significant a part did not improve governance or become more accountable to its citizens. That failure harmed member states by undermining the effectiveness of their aid.
Tedros’ crimes also wasted foreign security funding that was supposed to be used for legitimate law enforcement, military and anti-terror purposes but was instead diverted to political repression.[17]All of the vehicles, weapons, surveillance and other equipment used for the violent suppression of nonviolent domestic dissent was facially misused and thus, empirically, financially harmed member states that funded those assets with a different purpose in mind. More donor money had to be spent on security than was necessary as well because of the needless repression under Tedros and his colleagues.
The waste of foreign aid harmed member state donors who were constantly spending money as they tried to catch up with the country’s unmet needs.
Other examples of harm to member states include:
In 2014, an Ethiopian Airlines co-pilot pilot seeking asylum from political terror imposed financial and psychological harm on member state Switzerland by landing his hijacked plane in Geneva.
The kidnapping of British citizen Andargachew Tsige while in transit in the Sana’a airport because of negotiations conducted by Tedros with Yemeni authorities in 2014.
The costs and waste of member state resources in the case of a 29-year-old Ethiopian citizen, who had been medically treated in Switzerland since 2012, and whom in 2016 Swiss authorities decided to send back to Italy, is another individual example of Tedros’ crimes financially harming a member state, Switzerland. The UN Committee Against Torture (CAT) seized on the matter in 2016 and, after lengthy, expensive legal wrangling, concluded that this referral would mean Switzerland violated articles 3, 14 and 16 of the Convention Against Torture. Indeed, Article 3 stipulates: “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Tortured Ethiopian Refugee Wins Backing of UN Committee, Louis Labarriere, Italian Coalition for Civil Liberties and Rights, February 27, 2019
The harm to African member states was even greater. Member states Kenya, Djibouti, Uganda and South Africa were burdened with the economic and social costs created by tens of thousands of refugees fleeing persecution attributable in part to Tedros, including more than 9,000 formal asylum requests 2013-2016.
Tedros’ crimes also took place directly in African member states’ territory as well. For example, Human Rights Watch reported that during Dr. Tedros’ tenure as a top Ethiopian official, it “has documented numerous cases of harassment, assault and disappearances of Ethiopian refugees and asylum seekers living mostly in Nairobi, as well as torture of Ethiopians returned [by alleged Ethiopian government agents] to their country. In over 100 interviews with victims and eyewitnesses, Ethiopian refugees and asylum seekers have described to us a clear pattern of harassment by Ethiopians claiming to be working with the Ethiopian government, and by Kenyans purporting to be police officers.” Human Rights Watch Letter to Inspector General of Police of Kenya, May 17, 2017
Human Rights Watch has also documented “confessions” by Kenyan police officers in which they admit to being offered bribes by the Ethiopian embassy to detain and intimidate Oromo refugees.[18]
According to senior HRW researcher Felix Horne, there have been similar reports that Oromo refugees have been kidnapped from the territory of member states Djibouti and Uganda. “This is not unique to Kenya,” he said. “The patterns of pervasive Ethiopian security presence utilising local security officials is similar in other countries where Ethiopians flee to.”[19]
In the Case of Republic of Korea, the Office of the Prosecutor also relied on the effects doctrine to establish jurisdiction. The case concerned cross-border shooting from North Korea, which is not a State party into state party South Korea. South Korea proposed that the Court had jurisdiction because the crime culminated on the territory of a State party. The case was subsequently closed as the shootings had been directed at legitimate military targets. However, it demonstrated the effects doctrine is a well-accepted jurisdictional basis by the ICC and should be applied in Tedros’ case too.
Furthermore, by concealing his crimes, Tedros subjected member states to Covid-related harm that might have been avoided if his character had been known before his election to lead the WHO.
In addition to the effects doctrine, the Pre-Trial Chamber also relied in the Rohingya case on the penal legislations of various states, (including the interpretation offered by the Supreme Court of Bangladesh in Abdus Sattar v. State). These laws provide that the exercise of criminal jurisdiction by a state requires the commission of one of the legal elements/parts of the crime on its territory. The judges also found that the Rome Statute grants to the ICC the power “to assert jurisdiction over the most serious crimes of concern to the international community”…“on the basis of approaches to criminal jurisdiction that are firmly anchored in international law and domestic legal systems.” [emphasis added]
Thus, the ICC may also rely for jurisdiction on the domestic legal systems of affected member states which have long arm statutes. One such state is France, for example, where the Code Pénal asserts general jurisdiction over crimes by, or against, the country’s citizens, no matter where they may have occurred.
To cite another example, the Swiss Criminal Code (Schweizerisches Strafgesetzbuch) allows extraterritorial jurisdictional bases. In fact, “[t]he growing number of instances in which Swiss criminal law applies to extraterritorial conduct…has effectively set the bar rather low when it comes to subjecting activities committed abroad to Swiss criminal jurisdiction…” The Expansion of Swiss Criminal Jurisdiction in Light of International Law, Anna Petrig, p. 35
The foregoing establishes that part of the actus reusconstituting a crime took place in member states to the Rome Statute, and the Court therefore has jurisdiction over said crimes.
In the context of the ICC, application of the Lotus principle would mean that sovereign states are free to collectively establish an international jurisdiction applicable to the nationals of non-party states unless it can be shown that this violates a prohibitive rule of international law. So long as states have a legitimate interest in establishing such an arrangement, the question is simply whether any international legal rule exists that would prohibit it. No such rule exists.
The perpetrators of the core crimes under the ICC’s jurisdiction are considered hostis humani generis (enemies of all humankind) and the crimes themselves (even when committed in an internal conflict) are considered a threat to international peace and security. Thus, there are no special features of territorial jurisdiction that would as a matter of policy preclude the delegation of territorial jurisdiction to an international criminal court.
Moreover, one of the bases for the precedent Nuremberg Tribunal’s jurisdiction was the universality principle collectively exercised on behalf of the Allied Nations.
Crimes for which Tedros is liable are therefore within the jurisdiction of the Court at the time they took place, pursuant to Article 22 (Nullum crimen sine lege)
In addition, the ICC Prosecutor should ask the Federal Democratic Republic of Ethiopia to refer Tedros to the ICC on an ad hoc basis. Article 87 provides for cooperation with the ICC by non-party states. It stipulates that the Court “may invite any State not party to this statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.”
The Ethiopian government recently has publicly characterized Tedros as a “criminal”[20] for aiding acts of aggression by other TPLF leaders against the federal government. This may suggest the possibility of a positive response by the Ethiopian government to such a request.
The Prosecutor may initiate investigations proprio motu based on information on crimes within the jurisdiction of the Court. (article 13(c) of the Statute).
Tedros’ diplomatic status is irrelevant to the ICC under Article 27 of the Rome Statute (“Irrelevance of official capacity”).
Tedros’ Presence on the Soil of a Signatory State
Tedros is in Switzerland, a signatory state to the Rome Statute, or is expected to return there soon. Tedros also sometimes visits other state signatories to the Rome Statute.
Conclusion
Tedros’ responsibility for acts amounting to international crimes is supported by evidence that can be acquired through a preliminary investigation.
The prosecution of Tedros by the ICC would be a just and appropriate response to Tedros’ involvement in these crimes that caused so much suffering.
Investigation and judgment by the ICC concerning Tedros’ crimes could contribute to the field of international criminal law and establish an important precedent.
Therefore, the Prosecutor is requested herewith to investigate, issue an arrest warrant for, and prosecute Tedros because he violated the Rome Statute, injured signatory states thereto, and the ICC has jurisdiction over him.
The Prosecutor is also requested to ask the Federal Democratic Republic of Ethiopia to refer Tedros to the ICC.
Background of Submission
This Submission is made by Mr. David Steinman, an Ethiopia expert of American nationality. Steinman is a Wharton-trained economist, a former consulting expert to the U.S. National Security Council on democracy promotion, and a senior foreign adviser to Ethiopia’s main opposition coalition. Mr. Steinman has written or been interviewed about TPLF crimes and corruption in the Washington Post, Forbes.com, New York Times, The National Review, New Europe and other media. He has called for Tedros and other senior TPLF leadership to be held accountable for their crimes in the nonfiction afterword to his historical novel about Ethiopia’s human rights struggle, Money, Blood and Conscience.
I affirm the foregoing is true to the best of my knowledge.
Date: Dec. 1, 2020
David Steinman
[addendum: Article 12(3) is the basis for ad hoc jurisdiction when requested by a non-party state][1] 2187 UNTS 3 (1998).
[2] Ethiopia’s old guard hangs on as new guard rises. The Africa Report, Parselelo Kantai and Elissa Jobson, 6 June 2013
[3] “The government favors Tigrayan ethnic interests in economic and political matters…” Freedom in the World 2017 – Ethiopia, Freedom House
[4] “Tigray’s population-hospital ratio is much lower than all of the other predominantly rural regions.” Health Institutions and Services, Lesson 12, Aynalem Adugna, p. 6, July 2014
[5] “There was significant regional variation in maternal mortality ratios, ranging from 74 (95% CI: 51–104) per 100,000 livebirths in Tigray region to 548 (95% CI: 251-1,037) in Afar region.” Geleto, A., Chojenta, C., Taddele, T. et al. Association between maternal mortality and caesarean section in Ethiopia: a national cross-sectional study. BMC Pregnancy Childbirth 20, 588 (2020).
[6] A Quiet Case of Ethnic Apartheid in Ethiopia, Girma Berhanu, January 15, 2018.
[7] The Amhara Genocide Ignored by the World; A study of the genocide and ethnic cleansing of the Amhara ethnic group from 1991 – 2015, Moresh Wegenie Amara Organization (refer to years 2013-2016)
[8] AHRE urges Ethiopia to End the Atrocities and Human Rights Abuses Against The Konso People, 20TH SEPTEMBER 2016 BY ADMIN
[9] As one of countless examples, see allegation of security forces’ poisoning of a well in Qaachan district of Baalee zone that killed five members of the Oromo Liberation Army. Oromo Liberation Front website, On the war Crime committed against OLA members by Ethiopian army agents, 15 July 2016
[10] Based on asylum applications for those years in the given member countries. UNHCR Refugee Data Finder
[11] “The number of Ethiopian migrants arriving in Europe may be higher as there are reports that Ethiopian nationals claim Eritrean nationality upon arrival.” Danish Refugee Council, Ethiopia Country Profile, Updated May 2016
[12] “Oppressive political context and insecurity are cited as the second most important migration drivers.” Rapid fragility and migration assessment for Ethiopia Literature Review, Becky Carter; Brigitte Rohwerder, February 2016
[13] “Certain population groups, including Oromo people, other minority ethnic groups, Muslims, political opposition members, women and girls, as well as young persons in very large family compositions, are also facing bigger pressure for migration due to political and economic exclusion as well as marginalization.” ENABLING A BETTER UNDERSTANDING OF MIGRATION FLOWS (AND ITS ROOT-CAUSES) FROM ETHIOPIA TOWARDS EUROPE, DESK-REVIEW REPORT, International Organization for Migration, The UN Migration Agency.
[14] Unlikely Partners: The EU-Horn of Africa Migration Route Initiative – PRIO Blogs, Cindy Horst and Maimuna Mohamud, April 22, 2015
[15] See also, e.g., Asylum Research Centre (ARC), Ethiopia COI Query Responses: The Master Plan; OLF members and their family members; Ill-treatment by State agents of Oromo persons who are not politically active, pp. 46-57, 7 September 2016
[16]See, e.g., Ethiopia’s Cruel Con Game, Forbes.com, by David Steinman, May, 3, 2017, decrying the request for a billion dollars from the Ethiopian government for emergency food aid despite the fact that senior TPLF officials and their business associates were illegally diverting three times that amount from the economy in illicit financial outflows every year.
[17] See, e.g., HRW Ethiopia Events of 2015 (“Leaked emails from Milan-based Hacking Team, which sold spyware to the Ethiopian government, reveal that despite warnings of the risk of Ethiopia misusing their spyware, they issued a temporary license to Ethiopia while they began negotiations in April on a new contract worth at least US$700,000.”)
[18] The Long Arm of Ethiopia Reaches for Those Who Fled, Human Rights Watch, Felix Horne, Sept. 20, 2017
[19]Ibid.
[20] Ethiopia’s military chief calls WHO head Tedros a criminal supporting a rebel region, Paul Schemm, Washington Post, Nov. 19, 2020
ADDENDUM: For an additional discussion of genocide of the Oromo, some of which took place during Dr. Tedros’ tenure as a senior Ethiopian official, please see The Politics of Genocide Denial in Ethiopia, Habtamu, D. and Eisen, J., Africology: The Journal of Pan African Studies, vol.11, no.4, March 2018
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