Donaldson, M; (2022) Absence of Ethiopian war crimes tribunal for prosecution of Italians responsible for war crimes in Ethiopia 1935–41 [draft entry for Max Planck Encyclopedia of International Procedural Law]. UCL Faculty of Laws: London, UK. (In press).

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Abstract

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 UN 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 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 standards applicable in Europe (see, eg, Mégret, 2006, 269–295). These predispositions were coupled with a contingent logic of appeasement motivating Britain and France, and some in the 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 US would allow prosecution of Badoglio and other Italian war criminals. Laid over the attitudes of Allied powers were various more technical legal questions, about jurisdiction of the UNWCC, whether the invasion of Ethiopia could be conceptualized as part of WWII, 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 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.

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