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Max Planck Encyclopedia of International Procedural Law [MPEiPro]

Ethiopian War Crimes Tribunal

Megan Donaldson

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 24 September 2022

Aggression — War crimes — Occupation — Sovereignty — Recognition of states

Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.

A.  Overview

The Italian invasion and occupation of Ethiopia (1935–41) involved acts recognized at the time as violations of international law, and as war crimes. Although several Italian military and civilian officials were listed as war criminals by the United Nations War Crimes Commission (‘UNWCC’), none was ever prosecuted for these events: a striking outcome even given the highly selective justice of the era.

This impunity was largely a result of the Eurocentric civilizational hierarchies (Civilized Nations) which had left Ethiopia vulnerable to Italian invasion in the first place. Italian conduct in Africa was arguably treated by European states as merely the more brutal end of a continuum of colonial violence not judged by reference to the standards applicable in Europe (see, eg, Mégret, 2006, 269–95). These predispositions were coupled with a contingent logic of appeasement motivating Britain and France, and some in the League of Nations (‘League’) Secretariat, to smooth the path for Italy’s purported annexation. In 1943 the Allies took Pietro Badoglio, who had been Commander in Chief of invading forces in Ethiopia, as their key interlocutor in peace negotiations with Italy, and the imperatives of bringing Italy into the Allied fold and maintaining the Italian government against the Communist left made it unlikely that Britain or the United States (‘US’) would allow the prosecution of Badoglio and other Italian war criminals.

Laid over the attitudes of the Allied powers were various more technical legal questions, about the jurisdiction of the UNWCC, whether the invasion of Ethiopia could be conceptualized as part of the Second World War, and Ethiopia’s legal status in the period 1936–41. Ethiopia’s legal representatives addressed these questions compellingly, supported by pro-Ethiopian sentiment in some United Kingdom (‘UK’) and US circles; and by some states in the UNWCC. However, whether Ethiopia invoked terms in the peace treaty with Italy alone, or was bolstered in addition by eventual UNWCC listings, extradition of individual suspects from Italy would require diplomatic support from some or all of the UK, US, and France. These countries were unwilling to give the support required—and were abandoning their own requests for extradition of Italians implicated in war crimes against their nationals. One might thus dispense with the legal questions in explaining the absence of a tribunal. However, the legal questions are explored here to illustrate their centrality as pretexts and rationalizations.

B.  Ethiopia’s Status and Italian Colonial Ambitions in the 1930s

After defeating Italian attempts to assert a protectorate in 1896, Ethiopia was recognized as an independent state. However, Britain, France, and Italy—which controlled all territory bordering Ethiopia, blocking Ethiopian access to the coast—treated Ethiopian sovereignty as provisional. Ethiopia’s 1923 application for membership of the League only succeeded because the more formal League decision-making constrained imperial powers. Moreover, Ethiopia’s membership was made conditional on commitments regarding slavery and arms importation; and was seen by other states in the League as a remedial process of civilization, rather than recognition of status already attained (Becker Lorca, 2014, 263–81; Donaldson, 2020; Parfitt, 2011; Parfitt, 2019, 154–308).

For Italy, aggression against Ethiopia formed part of a ‘connected system’ of empire-building (Zaccaria, 2019) with roots predating Mussolini. A bloody campaign in the 1920s to assert Italian control over Cyrenaica, under the leadership of Badoglio (then Governor of Libya) and Rodolfo Graziani (Vice-Governor then Governor of Cyrenaica), relied extensively upon air power, and included the mass deportation of nomadic peoples, tens of thousands of whom died in Italian camps (Ahmida, 2020). Drawing on the Libyan experience, Italian planning for an invasion of Ethiopia began in March 1926, and gathered momentum in the early 1930s (Gooch, 2007, 239–51; Rochat, 2005 [1990], 37), as Italy accelerated opportunistic efforts within the League’s mandates and slavery bodies to criticize Ethiopia’s slow pace of reform (Ribi Forclaz, 2015, 129–54).

C.  Italian Invasion and Atrocities, Ethiopian Protests, League of Nations, and International Committee of the Red Cross Acquiescence

The appeasement driving British and French policy, and influencing the League Secretary-General, meant that League mechanisms did not protect Ethiopia (Potter, 1938; Baer, 1967; Parfitt, 2019). On 9 May 1936 Italy purported to annex Ethiopia. Haile Selassie, the Emperor, was forced into exile in Britain. Despite patriot resistance limiting the Italian control of territory (Zewde, 2001, 167–76), Italian sovereignty over Ethiopia was widely recognized de facto, and, by the end of 1938, de jure (Recognition) (Sbacchi, 1975, 555–56; Parfitt, 2019, 340–41).

Italian operations involved unlawfulness and brutality unusual even for the time. Italian forces made extensive use of mustard gas, which burns the skin, and was prohibited by the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (1925) (‘Gas Protocol’), to which Italy and Ethiopia were parties (Weapons, Prohibited). Italian planes bombed villages, civilian sites, and Red Cross ambulances and hospitals. Following a grenade attack by resistants on Graziani in 1937, thousands of Ethiopians were killed in massacres now known as ‘Yekatit 12’ (by the Ethiopian calendar), sanctioned if not directed by Graziani. Over at least three nights in Addis Ababa and other large towns, Blackshirts, Italian militia, and some civilians, together with Libyan and some Eritrean askaris, bayoneted civilians and burnt families alive (Campbell, 2017, 277–99). In the following weeks, the army and military police carried out a disciplined campaign across the country under Graziani’s direction, trying, executing, and deporting educated ‘Young Ethiopians’ to camps for involvement in the attack on Graziani (a pro forma allegation, utterly implausible in most cases). This expanded into a mobile execution program aimed at the ‘extermination of all Amhara chiefs, great and small’ (Graziani, quoted Campbell, 2017, 276). Some 19,000 people may have been killed in the initial wave of reprisals, and more executed in the formalized campaign that followed (Campbell, 2017, 324, 278).

Ethiopia protested the Italian invasion as unlawful aggression; and the use of gas and bombing of civilian and Red Cross targets as contrary to the law of war, and ‘crimes’ at least in a rhetorical sense—individual criminal responsibility under international law not yet being fully elucidated. Italy retaliated with allegations of Ethiopian emasculation of Italian soldiers and workers (appending graphic photos); use of dum-dum bullets; and misuse of the Red Cross emblem. Ethiopia rebutted these allegations (see, eg, rival correspondence to the League and Red Cross in (1936) 17 LNOJ 241–55, 395–488; 578–660; 772–80), but the emasculation incidents in particular were ‘blown out of proportion by adroit Italian propaganda’ (Baudendistel, 2006, 246) to equate them with Italy’s more systemic violence. Haile Selassie denounced the Yekatit 12 and related killings of notables as violations of the Fourth Hague Convention and requested the ‘appointment of a Commission of Enquiry to place on record all the horrors committed in Ethiopia’ ((1937) 18 LNOJ 268–69)).

Britain and France did what they could to restrict Ethiopia’s ability to represent its case in the League, and actively minimized public disclosure of the Yekatit 12 killings. In response to Parliamentary questions, British officials claimed (misleadingly) not to have much information (Campbell, 2017, 5–6, 333–38). International lawyers in Italy very largely supported the Fascist stance on Ethiopia (Bartolini, 2020, 375–78). Even the International Committee of the Red Cross (ICRC), which had first-hand accounts of the use of gas, was arguably more reticent in raising the issue with the Italian government than its norms of non-politicization required (Baudendistel, 2006, 261–302).

D.  Legal Aspects of Ethiopia’s Status (1941–44)

10  Italy’s declaration of war on Britain and France (June 1940) prompted the British Government to withdraw de jure recognition of Italian conquest. Eden stated that Britain ‘would welcome the reappearance of an independent Ethiopian State and recognize the claim of the Emperor Haile Selassie to the throne’, adding though that the Emperor had ‘intimated … he will need outside assistance and guidance’ (House of Commons Hansard, 1941). On 5 May 1941, Haile Selassie, who had accompanied British and Ethiopian forces into Ethiopia, re-entered a liberated Addis Ababa.

11  British military authorities, and the War Office, considered Ethiopia occupied enemy territory, the ruler of which remained the King of Italy pending a peace treaty. Ethiopia and neighbouring Italian colonies were placed under a British military administration which appropriated property and industrial installations, shipping them to other parts of the British Empire (Pankhurst, 1996, 50). Haile Selassie invoked postliminium to oppose this, asserting that, once enemy occupation had ended, Ethiopia sovereignty was intact, leaving him in a position to annul acts of the Italian administration, recover properties, and dispose of new infrastructure (Spencer, 1984, 96).

12  After strained negotiations, Ethiopia and the UK concluded the Agreement between the United Kingdom and Ethiopia (‘1942 Agreement’) and the Military Convention, which recognized that Ethiopia ‘is now a free and independent State’ and an ‘[a]All[y] in the struggle against the common enemy’ (1942 Agreement, preamble; Military Convention, preamble) but established terms reminiscent of a protectorate arrangement (Spencer, 1984, 99; Protectorates and Protected States). In 1944, Ethiopia and the UK reached new terms, loosening British control somewhat.

13  One enduring feature of the 1942 Agreement was comprehensive reform of the Ethiopian legal system under British auspices. An imperial proclamation appended to the 1942 Agreement created inter alia a High Court with exclusive original jurisdiction to try all cases involving foreigners. Such cases had to be presided over by a British judge, applying Italian codes for foreign nationals. This replaced earlier arrangements for foreign nationals to be judged in accordance with their own national law, by that state’s consul assisting the Ethiopian magistrate—but did so by building foreign codes and personnel directly into a nominally Ethiopian court hierarchy (Fanta, 2016; Feyissa, 2016) (Mixed Courts of Ethiopia).

14  Haile Selassie did, however, continue earlier practices of counterbalancing British predominance (Spencer, 1984, 5–8, 139–40; Norberg, 1977, 166–82). Defying the 1942 Agreement requirement for consultation before appointing non-British advisers, he appointed the American John Spencer, who had already served before the war, as legal adviser to the Ministry of Foreign Affairs. Spencer would play a major role in Ethiopia’s foreign policy objectives of securing a seaport and asserting Ethiopia’s claim over Eritrea. The Swedish lawyer Erik Leijonhufvud, appointed as legal adviser and acting Attorney-General (1946), would represent Ethiopia in dealings with the UNWCC.

E.  Early Arrangements for Prosecution of Second World War Era War Crimes

15  Although initially announced by the US and UK in 1942, the UNWCC was only finally established in October 1943 (and without the United Socialist Soviet Republic (‘USSR’)). While initially envisaged as a body for investigation of war crimes, the UNWCC was actually more a locus for national representatives to review and endorse dossiers sent in by ‘National Offices’ established by members (Morris and Knaap, 2017, 514–18). Ethiopia was never invited to join the UNWCC; indeed, Ethiopia and Albania were deliberately excluded by Britain (Pedaliu, 2004, 12; Pankhurst, 1999, 90, 98). However, at the first meeting of the UNWCC, the Chinese representative expressly reserved the right to revisit the period the UNWCC’s work should cover, given the Manchuria crisis—which predated even the Italo-Ethiopian war (UNWCC, 1948, 124).

16  At the Moscow Conference, the Allied Declaration on Atrocities of 1 November 1943 stipulated that, on armistice, Germans responsible for atrocities would be sent to be ‘judged and punished according to the laws of … liberated countries’, with ‘major criminals whose offences have no particular geographical location’ dealt with by future Allied arrangements. In a Declaration on Italy, the Allies described their invasion of Italian territory as pursuing ‘the fundamental principle that Fascism and all its evil influences and emanations shall be utterly destroyed’, in furtherance of which ‘Fascist chiefs and army generals known or suspected to be war criminals shall be arrested and handed over to justice’ (quoted in United Nations Documents, 1947, 15–16, 14).

17  Mussolini was removed by the Grand Council and arrested on 25 July 1943. Badoglio replaced him as head of government. Allied propaganda denounced Badoglio as a fascist, mentioning inter alia conduct in Ethiopia, but the Allies were willing to deal with him in order to manage an Italian surrender, which was crucial for the overall war effort (Agarossi, 2000, 66–68). Secret negotiations between the Allies and Badoglio resulted in the ‘short armistice’ of 3 September 1943 (made public 8 September) (Armistice). The ‘short armistice’ made no provision for war crimes, providing only that other mandatory conditions would be conveyed at a later date. After the short armistice was declared, Germany, which already had significant forces in Italy, seized the north of the peninsula, freed Mussolini, and established the ‘Italian Social Republic’ (‘RSI’) puppet state, leaving the Allies in command of southern Italy.

18  A more detailed ‘long armistice’ (Instrument of Surrender with Italy) was signed by Badoglio on 29 September 1943 but was kept secret to avoid exciting Italian resentment against the Allies (Agarossi, 2000, 121). Article 29 Instrument of Surrender with Italy included an obligation for Italy to apprehend and surrender ‘Mussolini, his Chief Fascist associates and all persons suspected of having committed war crimes or analogous offenses whose names appear on lists to be communicated by the United Nations [ie the larger Allied coalition]’. A Protocol of 9 November 1943 made textual amendments to the ‘long armistice’, including restricting the obligation to apprehend war criminals to territory actually controlled by the Allied Military Command and Italian Government (from September 1943 to the final collapse of the RSI, Italy was divided, with Allied forces and partisans fighting Italian fascist and German troops; and Graziani, for example, had escaped to the RSI and was serving as its Minister of Defence).

F.  Efforts to Prosecute Italian War Criminals Prior to the Italian Peace Treaty

1.  Policy of Allied Military Command in Italy and Early Postwar Italian Government

19  On the collapse of the RSI in April 1945, Mussolini and other fascist ministers were executed. Graziani was transferred to Algeria as a prisoner of war (‘POW’) and returned to Italy in 1946. In the aftermath of the fascist defeat, Yugoslavia was the most energetic of the European states in pressing for prosecution of Italian nationals. Italy had begun trying leading fascists for crimes akin to treason, but was unwilling to see Italian nationals extradited, especially as Italians had also been victims of Yugoslav crimes. Any move by the Allies to ‘hand over’ further war criminals came into conflict with the Allied imperatives of stabilizing southern Italy—Italy now being a co-belligerent rather than enemy; maintaining popular support for the Allies and cooperation with the Italian army; and neutralizing the political force of the Communists and the USSR (Pedaliu, 2003, 9–34). There was also a risk that moving against Italian war criminals might trigger reprisals against Allied POWs in Axis hands.

20  The British Foreign Office wanted to pressure Italy to surrender at least some leading war criminals, but the War Office saw this as a distraction. The US took little interest in the issue and was increasingly mistrustful of Yugoslavia as beholden to the USSR. In the circumstances, Allied standing orders to theatre commanders to surrender war criminals on request were not acted upon (Pedaliu, 2003, 16, 18–23).

21  However, fear of pressure to extradite Italians prompted Italy to establish its own commission of inquiry, in May 1946. The commission would not submit its final report until 1951; and in the interim the broader Italian purge of fascists stalled. The ‘Togliatti amnesty’ of June 1946, issued with the founding of the new Republic of Italy, granted amnesty to both those accused of political crimes and international crimes. In theory, it was not applicable to those holding high office or military command positions, nor to individuals responsible for massacres and torture, but these constraints were interpreted flexibly, and many collaborators and fascists imprisoned in earlier trials were released (Prosperi, 2018, 22–27). In October 1946, the Allied authorities were told not to act as a go-between for Yugoslav requests for extradition, leaving Yugoslavia to take the matter up directly with Italy (Pedaliu, 2003, 30).

2.  Initial Ethiopian Attitudes

22  Colonial archives, ceremonial statements, press reports, and accounts of foreigners with partial knowledge give only patchy insight into Ethiopian policy on war crimes prosecutions (eg, the American legal adviser John Spencer, heavily involved in Ethiopia’s amendment of the Italian peace treaty, does not mention war crimes in an otherwise detailed memoir; and Erik Leijonhufvud, who represented Ethiopia before the UNWCC, does not discuss the genesis of this work in his recollections). More recent oral histories provide some insight into the immediate postwar period (eg Zelleke, 2012; Campbell, 2017) but not decision-making on how to handle approaches to the UNWCC. There were important political divides which may have borne on Ethiopian thinking: among elites from the prewar period; among resistants; between those who resisted or went into exile and those who collaborated with Italy; and over the future of post-war Ethiopia (Zewde, 1993; 2001, 159–76). While acknowledging how little we know of Ethiopian deliberations, it is nevertheless possible to trace key stages in Ethiopia’s public stance, if only to refute later arguments that Ethiopia was dilatory in bringing cases forward.

23  Haile Selassie’s proclamation of victory of 5 May 1941 memorialized those ‘pitilessly massacred’, but urged his own people: ‘[d]o not indulge in the atrocities which the enemy has been practicing’ (quoted in Haile Selassie, My Life and Ethiopia’s Progress, vol II, 165). Ras Kassa, a leading notable, killed a number of Italian soldiers and civilians to avenge three sons who had fought in the resistance and been executed, but was reprimanded by the Emperor for doing so, and retributive violence was limited (Sbacchi, 1979, 29, 33). Nevertheless, traces of Italian brutality were all around, with bodies of those killed in Yekatit 12 still being recovered in the city. Haile Selassie unveiled a monument to the victims of Yekatit 12 on 5 February 1942, the fifth anniversary of the massacres (Campbell, 2017, 340–42).

24  Ethiopian efforts to avoid direct confrontation with Italy in 1941 are understandable. Until the Italian defeat in North Africa in October 1942, it was not clear who would prevail in the African theatre. To varying extents, Ethiopian chiefs even protected remnant Italian forces (Sbacchi, 1979, 31, 34–37) while the British evacuated some 64,000 Italian POWs from Ethiopia and Italian Somaliland to Kenya (Moore, 2015). Courting Italian civilians also continued Haile Selassie’s longstanding strategy of balancing powers against each other, especially given the overbearing conduct of the British military authorities. Finally, Italian nationals played crucial roles in sectors essential to Ethiopia’s development and the Emperor’s daughter was in Italy with her family (Spencer, 1984, 111–12; Sbacchi, 1979, 29–30).

25  As one would expect if this rapprochement had been largely pragmatic, emphasis on prosecution seems to have hardened with Italy’s surrender in 1943. The Ethiopian minister approached the UK Foreign Office, and the Emperor (or persons on his behalf) made emphatic press statements that Mussolini and Badoglio should be prosecuted, the latter’s involvement in the armistice notwithstanding: ‘[s]uch clumsy attempts to steal into the camp of the victors, such desperate attempts to escape personal responsibility before the tribunal to judge war criminals … will deceive no one’ (‘Ethiopia and Italy: Crimes That Must be Punished’, 18 October 1943).

26  By 1945, reports apparently from the Ethiopian Legation in London (Pankhurst, 1999, 108) complained that the British authorities were not handing over individuals guilty of war crimes, including Mussolini, Badoglio, and a collaborationist son-in-law of the Emperor. Ethiopia adhered to the Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis (‘London Agreement’) (International Military Tribunals) and on 20 May 1946 established an Ethiopian War Crimes Commission (‘EWCC’). Sylvia Pankhurst, a British champion of the Ethiopian cause, produced a pamphlet, Italy’s War Crimes in Ethiopia (1946), featuring photographs—originally taken, and left behind, by Italians—of tortured and decapitated Ethiopians, and the Ethiopian Ministry of Information released an official collection of similar material, titled ironically La Civilisation de l'Italie fasciste en Ethiopie.

27  In July 1946, Ethiopian correspondence asking the UN, the International Military Tribunal (‘IMT’), and the British legation in Addis Ababa to take cognizance of Ethiopia’s claims to try Italian fascist war criminals reached the UNWCC. However, Haile Selassie and surviving elites were also preoccupied with trying to ‘build the country’ and pursue other foreign policy objectives; and at least some in the government likely foresaw that the initiative for prosecutions would not bear fruit (Zelleke, 2012).

3.  Reception by the United Nations War Crimes Commission Prior to Negotiation of the Italian Peace Treaty

28  The Ethiopian correspondence was referred to UNWCC Committee III, dealing with questions of policy. The initial paper of the Committee’s Secretary, Egon Schwelb, concluded that the question of whether Ethiopia’s cases fell within the UNWCC remit was open for policy-oriented resolution—but offered a technical scaffolding that suggested jurisdictional objections. The matter was framed as a question about whether the UNWCC terms of reference should be construed to cover war crimes during the war on foot at the time of drafting (1943) (answer: ‘there was no express limitation’ of this kind [emphasis in original]); and, if so restricted, whether the Italo-Ethiopian war was different from this war or part of it. Schwelb noted that the Italo-Ethiopian war was ‘generally understood’ to have been concluded by debellatio, Italian sovereignty had been widely recognized, and subsequent Anglo-Ethiopian treaties probably did not reverse this retrospectively. Schwelb conceded, however, that from Ethiopia’s point of view ‘the situation is probably different’, because the Ethiopian government had never recognized Italy’s annexation (Note by the [Committee III] Secretary, 23 July 1946).

29  In Committee III, Sir Robert Craigie, the UK representative, steered discussion towards Schwelb’s approach (Pankhurst, 1999, 115; De Lorenzi, 2018, 173–4). Committee III submitted a draft resolution to the Commission which made a policy decision appear to be a purely logical outcome, in which the UNWCC was responsive to, rather than a site of, government decision-making (Minutes of Committee III, 30 July 1946, 4):

  1. 1.  The UNWCC has, up to the present, only dealt with war crimes … committed during or connected with, the present war. The Committee can find no evidence that it is the wish of member Governments that the Commission should deal with war crimes committed in any other war.

  2. 2.  The Committee are not in possession of any evidence to show that it is the opinion of the Governments that any direct connection exists between the Italo-Abyssinian war and the present war.

30  The Resolution was adopted by the UNWCC (Minutes of UNWCC, 31 July 1946, 7). However, in December 1946, apparently unaware of the UNWCC decision, Ethiopia informed the UNWCC that the EWCC had completed evidence-gathering against Badoglio, Graziani, and other Italian officials (enclosed with UNWCC Committee I, ‘Submission of Charges by Ethiopia’, 20 January 1947). By the time this further correspondence came before the UNWCC, the Italian peace treaty had been signed, and it arguably unsettled some aspects of the UNWCC’s earlier posture.

G.  Arrangements in the Final Italian Peace Treaty (February 1947)

31  In negotiations for the final peace treaty, the Italian government had sought to avoid a provision concerning war criminals, and the US was also unenthusiastic, but the USSR supported its inclusion, and Britain saw this as alleviating pressure on Britain to engage directly with Yugoslav claims (Pedaliu, 2003, 26–27). The draft treaty for the Paris Peace Conference thus contained an Article which, like equivalents in treaties with Romania, Bulgaria, Hungary, and Finland, required Italy to take steps to ensure apprehension and surrender for trial of, inter alia, persons accused of having committed, ordered or abetted war crimes and crimes against peace or humanity (Peace Settlements after World War II; Peace Treaties (1947)). Disagreement concerning application of this provision was to be referred to the Ambassadors in Rome of the UK, US, USSR, and France (Art 45 Treaty of Peace with Italy). Italy was also to pay reparations over seven years, including US$25 million to Ethiopia (Art 74 (B) (1)).

32  Once the Allies had unraveled earlier recognition of Italian annexation, and recognized Ethiopian independence, some formal end to the Italo-Ethiopian war was required. At the Paris Peace Conference, a fluke of the voting process left Ethiopia in a position of unusual negotiating strength, and enabled insertion of provisions endorsing the Emperor’s claims of postliminium into the Treaty of Peace, providing that Italy renounced in favour of Ethiopia property, rights, and interests acquired at any time in Ethiopia by the Italian state, and would restore objects taken from the country (Spencer, 1984, 179–81; De Lorenzi, 2018, 174). These provisions were underpinned by Article 38: ‘[t]he date from which the provisions of the present Treaty shall become applicable as regards all measures and acts of any kind whatsoever entailing the responsibility of Italy or of Italian nationals towards Ethiopia, shall be held to be October 3, 1935’.

H.  United Nations War Crimes Commission Debates the Post-Italian Peace Treaty

1.  United Nations War Crimes Commission’s Agreement to Consider Ethiopian Cases

33  Article 45 Treaty of Peace afforded Ethiopia rights to seek the surrender of Italian nationals, but this would not assist Ethiopia unless the four powers who would hear disputes under this provision supported Ethiopia’s claims. UNWCC listing of individuals would add weight to Ethiopia’s case, and the terms of the treaty also challenged the UNWCC’s prior stance that Italo-Ethiopian war cases fell outside the UNWCC remit.

34  Legal analysis in the UNWCC minimized the implications of Article 38:

The mere fact … that [it] puts back the date from which … obligations will be effective to a time substantially preceding the actual outbreak of the present war cannot be interpreted to the effect that thereby a direct connection between the two wars has been unambiguously established’ [emphasis in original].

This analysis ignored the potential significance of the fact that the Italo-Ethiopian war had ultimately been ended, in law, by the same peace treaty ending the Second World War between Italy and other Allies—but did conclude that the question of jurisdiction ‘is still open for decision’ (Note by Dr J Litawski, 13 February 1947, 4, 5).

35  At first, key members opposed the UNWCC taking up Ethiopian cases (UK, US, France, Netherlands, Greece, and Norway). Australia, Poland, and Yugoslavia took the opposite view, and many representatives lacked instructions (Minutes of UNWCC, 12 March 1947). By the following meeting, Czechoslovakia had joined those who favoured taking up the Ethiopian cases, making four in favour and six against. This was taken as a decision not to assume jurisdiction (Minutes of UNWCC, 26 March 1947, 6–7).

36  On 1 May 1947, the Ethiopian Minister personally submitted dossiers on Badoglio and Graziani to the Secretary General of the UNWCC. Lord Wright, also present, informed the Minister that the UNWCC did not consider it could assume jurisdiction. However, on 31 July 1947, the Ethiopian Minister asked the Secretary-General of the UNWCC if Ethiopia could be heard on jurisdiction (Letter Blatta Ephrem Tewelde Medhen to UNWCC Secretary-General, 31 July 1947). A subsequent letter mentioned Articles 38 and 45 of the Treaty of Peace with Italy, the fact that the UNWCC had listed Japanese war criminals with respect to crimes before 1939, and the fact that Ethiopia had reduced its list of Italian war criminals to a maximum of ten (letter Medhen to UNWCC Chair, 12 August 1947).

37  In the discussions which followed, the unattractiveness and fragility of the technical objections to UNWCC involvement, together with reputational concerns of UNWCC members, and forceful advocacy by Leijonhufvud, undermined the consensus against UNWCC consideration of Ethiopian cases (for a detailed account, De Lorenzi, 2018, 175–79).

38  At the Commission’s meeting of 24 September 1947, Leijonhufvud (as Attorney General of the Ethiopian Government) appeared in person. Pointing to Articles 38 and 45 Treaty of Peace, he argued that ‘there was a definite continuity in the happenings since the 3rd October 1935’, and stressed that the Emperor had never surrendered sovereignty, nor patriotic forces ceased fighting. Leijonhufvud undertook that Ethiopia would not charge individuals with crimes against peace—the legal elements of which would be more controversial than war crimes—and the court would be ‘quasi-international’, with some foreign, even neutral, nationals serving as judges. He closed by emphasizing that ‘Ethiopia did not get much help in those days and years when she was suffering from the oppression of one of the European nations. He thought – speaking as a European himself – she should get now all support that could be given’ (Minutes of UNWCC, 24 September 1947).

39  The Chair and the US representative were unmoved—and, although it was not mentioned in the UNWCC, the US had in August 1947 communicated to Italy that the US did not plan to exercise its own rights under Article 45 Treaty of Peace to demand surrender of Italians who the US might wish to charge. However, the Dutch representative noted the ‘continuity in the fighting which made the Ethiopian war and World War II actually one, which in his opinion was quite a strong point’. Baer (Belgium) thought the Ethiopian willingness to use a quasi-international court weighed in favour of the UNWCC taking up the cases. New Zealand (previously abstaining) now agreed that there was one continuous war. The Indian representative, not present for the earlier vote, favoured taking up the cases. Representatives of Yugoslavia and Poland emphasized the reputational dangers of allowing perpetrators to go unpunished. The Chair, Lord Wright, again tried to secure a rejection, raising doubts about what law would be applied in a prosecution, and complaining that the request came so late (ignoring the circumstances of Ethiopia in 1941–44, British obstruction, and an observation by Leijonhufvud that Ethiopia’s work had been hampered by the Italian massacres of educated Ethiopians) (Minutes of UNWCC, 24 September 1947). Lord Wright agreed reluctantly to postpone the final decision to enable representatives to seek instructions.

40  Leijonhufvud offered further undertakings that the Ethiopian court would operate with ‘a majority of foreign Judges’, and rules and law similar to the Nuremberg IMT (Letter Advocate General (Leijonhufvud) to UNWCC Chair, 8 October 1947). By the next meeting there were ten votes in favour of granting the Ethiopian request, including longstanding supporters of the UNWCC considering the cases, but also earlier abstentions (New Zealand, Canada, Denmark), and countries which had previously voted against examining the cases (Greece, Norway, and most strikingly the UK). Four states still voted against: Belgium, the Netherlands, France, and Australia. China and the US abstained (Minutes of UNWCC, 29 October 1947, 3).

2.  Scrutiny and Listing of Ethiopian Cases (March 1948)

41  The Ethiopian government named ten Italians for acts spanning invasion and occupation (letter Ephrem Tewelde Medhen to UNWCC Secretary-General, 28 October 1947; list subsequently amended per De Lorenzi, 2018, fn 57). Consideration of Ethiopian cases followed the usual UNWCC practice: members of Committee I (here, Lord Wright, and representatives of the US, UK, Czechoslovakia, and Norway; US abstaining) considered whether the evidence (later published as Documents on Italian War Crimes, 1949)) was sufficient to list individuals as ‘A’ (clear prima facie case); ‘S’ (suspects); or ‘W’ (witnesses) (UNWCC, 1948, 123, 477–78, 482–83, 485).

42  Given the absence of any established definition of war crimes, the UNWCC worked from a catalogue drawn up after the First World War (Kochavi, 1998, 95–97). It was accepted that ‘war crimes’ for UNWCC purposes encompassed also crimes against humanity as defined in the London Agreement (UNWCC, 1948, 177), ie a larger category of acts than violations of the laws and customs of war but still in execution of or in connection with crimes against peace, or war crimes. Ethiopia seems to have been conscious of these legal parameters in some respects, focusing allegations regarding use of poison gas and bombing to the period 1935–36—whereas gas was in fact used well after this. But several of the acts in issue, particularly the 1937 massacres, fell technically after what the UNWCC had previously treated as a debellatio ending the Italo-Ethiopian war, creating a possible question about the requisite nexus with war. This issue seems not to have been explored at the time.

43  The UK representative tried to shield Badoglio, even contending, implausibly, that it was doubtful Badoglio had enough control over Graziani to justify invoking command responsibility. Others argued that use of gas was a matter of policy in which the Commander in Chief must have been involved. Badoglio was listed as ‘A’ for use of poison gas and deliberate bombardment of hospitals. Graziani was listed as ‘A’ for the war crimes of murder and massacres; torture of civilians; deportation of civilians; internment of civilians under inhuman conditions; wanton destruction of property; wanton destruction of religious, charitable, educational, and historic buildings; and use of poison gas. Ultimately, eight Italians were listed for a range of crimes, particularly murder and use of poison gas; two were listed as suspects only (Minutes of Committee I, 4 Mar 1948; on Cerulli, see De Lorenzi, 2018, 180–84). The Ethiopian cases were among the last considered before the UNWCC wound up.

I.  Allied Denials of Assistance

44  The listing of Italian war criminals made it awkward for Britain to refuse to support Ethiopian requests for the surrender of Italians (Pankhurst, 1999, 128), although Britain had already refused to assist Yugoslavia (Pedaliu, 2003, 30–33). As the April 1948 Italian elections approached, in the shadow of the Soviet invasion of Czechoslovakia, the US and UK were promoting the centrist Christian Democracy party against a left coalition. With a view to bolstering the Christian Democrats, the UK confirmed on 16 April 1948 that it would waive its rights under Article 45 Treaty of Peace to seek extradition of Italian nationals who had committed alleged war crimes against British troops, provided these individuals were prosecuted in Italian national courts. France and Greece informally followed suit (Prosperi, 2018, 9). British officials suggested to Leijonhufvud that Ethiopia might also follow the British example, though they added that ‘there were limits to what one could expect the Italians to do [even with trials in Italy], especially in respect of people who had served with the Anglo-American forces during the war, or held high places now’ (Egyptian Department of the British Foreign Office, 1948).

45  Ethiopia continued to seek surrender of Badoglio and Graziani. However, the Italian Ambassador in London refused to receive these communications from his Ethiopian counterpart. The British Foreign Office tried to dissuade the Ethiopian Minister in London from pressing the question, particularly given the imminent discussions of Eritrea in the General Assembly (Pankhurst, 1999, 134). Britain, France, and the US refused to take the matter up through the conference of ambassadors charged with resolving disputes under Article 45 Treaty of Peace. Italy did in fact embark on a prosecution of Graziani in 1949, but for collaboration with Germany; Graziani was ultimately sentenced to 19 years’ imprisonment but released after only a few months (Pankhurst, 1999, 133–35).

J.  Enduring Conflicts in Diplomacy, History, and Memory

46  As Ethiopia was seeking assistance under Article 45 Treaty of Peace, the disposition of Italy’s former colonies was under negotiation. Provided their own geostrategic priorities were accommodated, the UK and US were happy to see Italy resume administration of territory despite past brutality (Spencer, 1984, 175–242). In 1949, during debates on Italian trusteeships in Libya and Somalia (United Nations Trusteeship System), the Italian delegation included Enrico Cerulli, listed by the UNWCC as a war crimes suspect (De Lorenzi, 2018, 185). Ethiopia ultimately obtained a federative relationship with Eritrea (laying the foundations for what was arguably a form of ‘secondary colonialism’ of its own: Weldemichael 2012, 20–25, 39–44), but had to accept an Italian presence on Ethiopia’s borders when Italy was granted UN trusteeship over Somaliland in 1950 (Ethiopia the sole vote against). Italy tried to appoint a General Nasi, who had been listed by UNWCC as a war criminal for conduct in Ethiopia, as the first Administrator (Spencer, 1984, 226), though the appointment was withdrawn after Haile Selassie protested (Prosperi, 4 fn 5).

47  An official Italian mission to Ethiopia in 1952 paved the way for resumption of Italo-Ethiopian relations. However, this did not involve any admission of wrongdoing on Italy’s part. In 1953, for example, the Italian foreign ministry asked the Ethiopian ambassador in Rome to hold the diplomatic reception for Ethiopia’s national holiday not on Ethiopian Patriots’ Victory Day—anniversary of Haile Selassie’s return, and a commemoration of veterans of the Italo-Ethiopian war—but on the Emperor’s birthday, to avoid offending Italians. The embassy refused (Abraham, 2011, 95–97). Reparations were not paid in full: after protracted negotiations (Abraham, 2011, 89–118), an agreement of 1956 stipulated a final sum of US$16 million in reparations in the form of Italian construction and investment—deductions being made from the sum owed on grounds even Italian officials thought contestable (Novati, 1996, 40). Perhaps the most prominent looted object, the Obelisk of Axum, was only returned in 2005.

48  The Italian state was slow to open archives, hampering the work of antifascist historians (eg del Boca, 1982; Rochat; and Sbacchi); and only conceded that poison gas had been used in Ethiopia decades after the fact. Historians continue to uncover evidence of massacres previously undiscussed in Italy—albeit remembered in Ethiopia by surviving eyewitnesses—like the 1939 gassing and shooting of patriot fighters and followers besieged in the cave of Zeret (Dominioni, 2006). In a reminder of the significance of legal categories in shaping thinking about what occurred, though, even public commentary deploring the brutality has seen this massacre as occurring outside ‘international’ war, meaning the Gas Protocol and then-existing international humanitarian law (Humanitarian Law, International) would not have applied—the question of whether the Italo-Ethiopian ‘war’ was complete or ongoing by 1939 remaining critical to legal analysis if not to prospects for prosecution (Cassese, 2006).

49  In Ethiopia, the Italo-Ethiopian war continues to be commemorated, although there have been major intervening ruptures, particularly the revolution of 1974 and the ‘Red Terror’ pursued under the Derg regime (1974–87), followed by a gradual transition to democracy—with domestic prosecutions of Derg members for genocide and torture (Tiba, 2013); and ethnic and territorial conflicts. In Italy, the Allied acquiescence in impunity, and Italy’s experience as both an ally and a victim of Germany, has impeded reflection on culpability. The absence of war crimes trials has both reflected and enabled amnesia (Prosperi, 2018, 27–30; Focardi and Klinkhammer, 2014, 343–44). Conflicting national memories come into occasional, sharp, conflict. In 2012, for example, the decision of an Italian municipality to name a war memorial for Graziani sparked controversy in Italy, and the Ethiopian Foreign Minister called on the international community to denounce this memorial to an individual who should be condemned for war crimes, genocidal activity, and crimes against humanity (Embassy of Ethiopia, Sweden, Press Release, 9 April 2013; see also Global Alliance for Justice – The Ethiopian Cause, Press Release, March 2019). The municipal officials involved were later sentenced for the domestic crime of apology for fascism, but the convictions were overturned (Corte Suprema di Cassazione, Sentenza, 25 September 2020).

Megan Donaldson Ethiopian War Crimes Tribunal

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Cited Documents

Other Documents

Cited Cases