The Minister in Ethiopia (Southard) to the Secretary of State

No. 1023

Sir: I have the honor to refer to the Legation’s No. 1014 of July 26th, 1932,6 reporting the Diplomatic Corps discussion of the latest Ethiopian proposal for the reorganization of the Special Tribunal—the court in which mixed cases are tried.

The committee appointed to draft a statement of principles to the Ethiopian Government—said committee being composed of my British, French and Italian colleagues—has now completed its effort. The communication to be addressed to the Ethiopian Government has been completed in somewhat more elaborate form than [Page 663] originally intended. Copy of the original French draft is herewith enclosed, and there is included a free translation into English.

This draft note has received the definite adherence of five of the six members of the local Diplomatic Corps. This Legation, the sixth member,7 has given tentative adherence to be confirmed or withdrawn upon receipt of Departmental instructions. Should this Legation hold entirely aloof there would result undesirable delay in bringing this counter-proposal before the Ethiopian Government. On the basis of the Department’s attitude as I interpret it from the Department’s No. 230 of March 9th [8th], 1932, to this Legation, on the general subject of its concern over the defective organization of the Special Tribunal, our tentative adherence to the attached draft note has been given. I await the Department’s instructions before making our adherence final.

In the light of local experience and requirements the Legation is unable to recommend for the Department’s consideration any amendments to the attached note. The Legation considers it admirably drawn for the purpose either of initiating real cooperation from the Ethiopians or of developing a definite refusal to go ahead on a reasonable basis. In the latter event I suspect that my British, French and Italian colleagues may be authorized to take a firmer stand. It is evident to this Legation that the situation is becoming intolerable, at least to them, and that something must be done.

This note could be criticised because of various omissions which are intentional. There is, however, a special technique in dealing with the Ethiopians in the preparation of notes of the kind. There must be left for later consideration certain details which are likely to distract Ethiopian attention from the main issue. Elaboration is best done piecemeal in a series of notes after there shall have been obtained agreement or cooperation in the main issue involved. Also notes must be composed and phrased to adapt them to translation into the comparatively poor and inelastic Ethiopian (Amharic) language. In expressing our approval of the form and content of this note the Legation has considered these special points of local practice.

As may be noted from the synopsis of past negotiations, with which the attached note opens, the Diplomatic Corps has long and patiently endeavored to arrive at some solution for this problem. The Ethiopian Government has shown no sincere disposition to cooperate. Its attitude has grown much more difficult since the [Page 664] injection of the influence of its often insufficiently well informed foreign advisers into the situation.

On page two of the attached note will be found an incomplete tabulation of unexecuted judgments as between the Special Tribunal and the various local Legations and Consulates. Complete data are not yet available and will be provided later for filling in the blanks.8 We have decided that it is best not to delay forwarding this draft note while the missing data are being assembled. The British Legation is one of the most efficient here and has its figures completed. My French and Italian colleagues indicate that their figures may approach the British in size and importance. For unexecuted judgments in favor of American citizens I have given the MT$700.00 won by Daniel E. Alexander, an American negro, against one Zaudi. This is not strictly an unexecuted judgment as Alexander had never pushed for payment pending his consideration of an appeal. He had never yet arranged an appeal, when Zaudi became suddenly no longer liable. Zaudi was an actor in the recent Ras Hailu-Lij Yasu treason and was shot to death. The claim against his estate might be sustained but as the Government has, in the usual manner, confiscated the estate of this traitor there would probably result various complications. The new development may also permit Alexander to arrange an appeal and procure what he considers should be a much larger judgment—MT$7,000 was the original basic amount claimed.

Immediately following the tabulations in the attached note is an important paragraph requiring a disposal of these unexecuted judgments. The Paragraph (11) on page 2 of the attached note is also important in requiring that the proposed Bureau of Execution should deal only against Ethiopian defendants. As previously reported9 the Diplomatic Corps has feared (possible violation of Klobukowsky Treaty,10 etc.) to accept an Ethiopian Bureau of Execution having authority to execute judgments also against foreign defendants. The intention of the Corps is to provide its own machinery for the execution of judgments against foreigners, and to establish a sort of clearing house which will balance payments of Ethiopian judgments against foreign judgments. The intentions of the Diplomatic Corps in these respects have been purposely [Page 665] omitted from the attached draft note. …These intentions are proposed for discussion in a separate note which will depend upon the Ethiopian reply to the present note.

For this same reason … the initial procedure headed “Ordinary Civil Cases” on page 3 of the attached note has been made quite simple. Various obviously essential details have been omitted with the thought of bringing them in later. The desire of the Corps is first to obtain Ethiopian consent to and cooperation on certain basic and elementary principles of functioning of the Special Tribunal.

The most important of all litigation between foreigners and Ethiopians comes, naturally, under the heading of “Ordinary Civil Cases.” There has very rarely been a mixed case of criminal kind. However, in the attached note, page 4, there is inserted a brief paragraph under the heading of “Criminal Cases” which the Corps does not consider commits it to any definitely prescribed course of procedure but provides merely a basis for future discussion. The “Ethiopian Code of 1912” therein referred to (as applicable to Ethiopian defendants) appears to be more or less vague to all Legations other than the British. My British colleague brought up in a meeting of the Diplomatic Corps that he had in his files such a publication—no other Legation appeared to have any knowledge of it. The British Legation was for many years the only one here having as Oriental Secretary (Interpreter, Translator, etc.) one of its own nationals. Naturally it has been more efficiently and thoroughly served in the collection of material from Amharic sources which is never much advertised and which is more often obscurely issued. This Legation will endeavor to obtain and translate this alleged “Code.” My British colleague said that his translation of the “Code” had cost him “sixteen guineas and was hardly worth it.” We could not, of course, afford that. This “Code” is also understood not yet to have come into use in the Special Tribunal.

In the third from the last paragraph of the attached note there is a parenthetical reference to Greece and Egypt. This may be explained by stating that the Greek Diplomatic representative (Zervos) is honorary and does not participate in the deliberations of the Diplomatic Corps. The Egyptians are represented only by a Consul (Moussa) who on the basis of his rank is not included in the meetings of the Corps. … Naturally in an affair of this kind affecting the foreign community as a whole both the Greek and the Egyptian will be consulted by the Dean of the Corps.

In the penultimate paragraph of the attached note emphasis is given to the intention of the Diplomatic Corps to require a completion [Page 666] within six months of all pending unexecuted judgments. This Legation considers that desirable and necessary.

The Diplomatic Corps holds this note eminently fair and reasonable under the circumstances and as one which will elicit such cooperation as the Ethiopians may honestly intend. …

Respectfully yours,

Addison E. Southard

The Diplomatic Body to the Ethiopian Government

The Diplomatic Body has the honor to acknowledge the receipt of the communication from the Ethiopian Government dated April 12th, 1932, of certain proposals for the improvement of the Special Tribunal.

It is now ten years since this question first came under discussion with the communication to the Dean in June, 1922, of Provisional Rules for the Court, to which in November, 1923, the Dean suggested certain amendments.

In February and March, 1924, further notes were addressed by the Dean on the subject of the inadequacies of the Court, and a reply was received to the effect that the question would be dealt with on the return of the Emperor (then the Heir Apparent) from his visit to Europe.

In July, 1926, Revised Rules were communicated to the Dean who again suggested amendments.

In March, 1928, further proposals were addressed to the Dean, who replied in May, 1928, drawing attention to, among other things, the urgent necessity for the enforcement of definite Rules for the Court.

In December, 1928, and February, 1929, the Ethiopian Government proposed the appointment of a foreign judge for the Tribunal and in July, 1929, the Dean submitted a detailed scheme whereby such a proposal could be suitably carried out.

The Ethiopian Government replied in July, 1930, with a very brief note giving a counter proposal, whereupon the Dean at once—on July 31st, 1930—asked for a more complete answer.

In the meanwhile the Ethiopian Government proposed the adoption of a code of civil procedure as well as the establishment of a commercial section of the Special Tribunal; both of these proposals were discussed but never put into effect.

In January, 1931, the Dean asked for a reply to his Note of July 31st, 1930, and in May, 1931, the Ethiopian Government replied with a proposal for a new Court of Appeal pending the early submission [Page 667] of counter proposals for the Tribunal as a whole. The Dean replied orally accepting the principle of a Court of Appeal but expressing a lively desire to receive the promised counter proposals as soon as possible.

During the year which has since elapsed no proposals have been received and the state of the Tribunal has become so defective that judgments given but unexecuted now amount to the approximate figures given below:

In favor of French plaintiffs MT$
British MT$ 141,000.00
Italian MT$
German MT$ 6,270.00
Greek MT$
Egyptian MT$
American MT$ 70.00

On the other hand judgments unexecuted in favor of Ethiopian plaintiffs are approximately as follows:

Due by French defendants MT$
British MT$ 4,800.00
Italian MT$
German MT$ 300.00
Greek MT$
Egyptian MT$
American MT$ None

In the opinion of the Diplomatic Corps, therefore, the first requirement is to deal effectively with the question of these unexecuted judgments and while welcoming the present proposal (which is in effect the ninth put forward by the Ethiopian Government) it considers that application can best be made in the following manner:

The mixed commission proposed by the Ethiopian Government should occupy itself first with the question of unexecuted judgments before proceeding to deal with the question of a law of procedure.
The proposed Bureau of Execution should deal with the execution of judgments delivered in the future, confining itself of course to execution against Ethiopian defendants.
The institution of special sittings for deliberation in the form proposed by the Ethiopian Government would be unnecessary if the following simple rules were observed provisionally, namely:

Ordinary Civil Cases

a. deposit of complaints

1. Foreigner against Ethiopian.

The complaint in writing is sent to the Consulate of the foreigner in three copies with translation in Amharic (three copies).

[Page 668]

The Consulate will not collect fees of its own but will collect the fees required by the Tribunal and send them to the Cashier of the Tribunal together with the complaint in two copies.

2. Ethiopian against foreigner.

The complaint is sent to the Special Tribunal in three copies in Amharic. The Special Tribunal sends to the interested Consulate two copies with translation in French. On each copy of the complaint transmitted to the Consulate will be indicated that the amount of the court fees has been paid to the Clerk’s Office, with mention of the number and date of the receipt delivered by the Clerk of Court.

b. summons

1. Foreigner against Ethiopian.

One copy of the complaint is sent to the defendant by the Special Tribunal which will require from him a written reply in three copies within fifteen days, the reply to be in the language of the defendant.

2. Ethiopian against foreigner.

One copy of the complaint is sent to the defendant by the Consulate, which will require a written reply within fifteen days, in the language of the defendant. This reply should be sent in three copies accompanied by translations in Amharic.

c. docketing

After the exchange of these documents the dossier is completed and takes a date in the office of the Tribunal. The cases are then to have a number of order which will be given by the Tribunal and communicated to the Consulate and which will determine the order in which each case is to be called. This status may not be changed excepting by mutual consent of the two judges.

d. hearings

The affair called, there will first be heard the complainant and his witnesses, with or without deposit of the (lawyer’s) brief as may be decided by the Tribunal. The Tribunal will give judgment or will adjourn for deliberation. In the latter case the judgment should be given within fifteen days. The judgment will be given in consultation between the two judges alone and signed forthwith by them.

e. record of minutes of hearings

The minutes of the hearing should be written in ink in a numbered register and completed during the hearing. They shall be signed by the Clerk of Court and countersigned by the two judges.

[Page 669]

Minor Cases

If the amount in dispute is thirty thalers or less there may be employed a brief procedure. The case shall be taken up on the demand of the Consul or of the Ethiopian representative of the Tribunal according to whether the plaintiff is foreigner or Ethiopian. The Tribunal issues a summons, ordering the defendant to pay failing which he should be called before the Tribunal at a fixed date. The case will be given a hearing and judged summarily on the spot.

Criminal Cases

Criminal cases will be considered as urgent and will be recorded in a special calendar with the warrant of arrest. There will particularly be considered criminal those cases recognised and punished by the Ethiopian Code of 1912 [1930].11

The Diplomatic Corps also takes note of the fact that the Ethiopian Government has recently appointed a new Chief Judge of the Special Tribunal in the person of Belatta Ayela Gabré and, being desirous of responding as fully as possible to the desire expressed by the Ethiopian Government for collaboration with a view to the improvement of the administration of justice in mixed cases, it is prepared to issue the necessary identic instructions forthwith to its Consular representatives (in which it is understood that the representatives of Greece and Egypt will be included) for the bringing into effect of the three proposals above mentioned.

It is, however, well understood that this Agreement for Six Months will be ended six months from the date of the resumption of the work of the Special Tribunal and that the situation may be submitted to a new examination after this period. It is equally well understood that during this period all the judgments previously pending shall be executed (excepting in case of insolvency proved on the part of the debtor) and that a mixed commission, composed of representatives of the Ethiopian Government and of the Diplomatic Corps, shall complete a study for the reorganization of the Special Tribunals as a whole.

The Diplomatic Corps has confidence that the Ethiopian Government will give the above proposals its earnest attention and return an early reply in order that the negotiations on this important subject may in the end produce a definite and practical result as much in the interest of foreigners as in that of the Ethiopians.

  1. Not printed.
  2. The other five members were Great Britain, France, Italy, Germany, and Belgium.
  3. A new tabulation was transmitted to the Department by the Minister in Ethiopia in his despatch No. 1040, September 12; received October 11 (884.05/25).
  4. Despatch No. 1014, July 26, 1932; not printed.
  5. Treaty of Friendship and Commerce Between Ethiopia and France, signed at Addis Ababa, January 10, 1908, British and Foreign State Papers, vol. cl, p. 997.
  6. Corrected by the Minister in Ethiopia in his despatch No. 1040, September 12: received October 11.