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

No. 1264

Sir: I have the honor to refer to the Legation’s Nos. 1258 and 1261 of October 5 and 12, 1933,7 respectively, with which were submitted draft civil and criminal codes proposed for use in the Special Tribunal (Mixed Court) in Ethiopia. These codes represent the deliberation of a joint Ethiopian and Diplomatic Corps commission, and have been submitted by my colleagues to their respective Governments for comment or approval.

A third project, for the reform or reorganization of the Special Tribunal, has now been taken up by the Diplomatic Corps. The Corps proposes to designate a commission, composed of its junior officers qualified for such work, to meet with an Ethiopian commission to consider a reform or reorganization of the Tribunal. The instructions which the Corps proposes to give its commission as a basis for negotiation with the Ethiopian representatives have been prepared in memorandum form. Before proceeding to the appointment of its commission the members of the Corps are referring the memorandum of proposed instructions for the approval or comment of their respective Governments.

There is enclosed herewith in the original French, with free translation into English, a copy of the Diplomatic Corps memorandum. The instructions of the Department are respectfully requested as to whether this Legation may join with the other foreign Legations here, on the basis of this statement, for the negotiation of a reform or reorganization of the Special Tribunal. The specific designation in the Paragraph 4 of this memorandum of the countries from which the proposed foreign judges may be appointed has been made with a view to avoiding, for obvious reasons, the selection or appointment of a foreign judge of the nationality of any of the Legations represented here. The provision in Paragraphs 8, 15 and 20 for a salary in “gold” is to protect the appointees from exchange fluctuations which could cause them considerable hardship.

The Diplomatic Corps finds itself in doubt as to what authority should have jurisdiction over a foreign judge of the Special Tribunal who might be accused of a crime or an offense, but is definitely of the opinion that such judge should in no circumstance be submitted to a Consular Court for trial or judgment. We have each agreed to request the views [Page 858] of our respective governments on this point, and I have therefore the honor to request the Department’s views.

Respectfully yours,

Addison E. Southard


The Chiefs of the Diplomatic Missions established at Addis Ababa:

Believing that experience has sufficiently demonstrated the impossibility of obtaining satisfactory justice in mixed cases through the present institutions;

Observing that the work undertaken by the Mixed Commission for the reform of procedure in the Special Court will soon be finished;

Remembering that by virtue of the agreement made in April, 1933, between the Diplomatic Corps and the Ethiopian Government a second mixed commission will immediately begin the study of the reform of the Special Court itself;

Convinced that this second negotiation can succeed only by prior agreement between the interested powers;

Persuaded that the scheme of reform drawn up in 1929 by the Diplomatic Corps must undergo some modifications in view of the recent changes proposed in the laws of procedure as well as in view of the fact, now known, that certain points of this plan would meet firm opposition on the part of the Ethiopian Government;

Hereby decide to refer to their respective governments for approval the following suggestions which can serve as instructions for all the delegates whom the Diplomatic Corps will appoint to sit on the Mixed Commission for the reform of the Special Court:

The delegates of the Diplomatic Corps will point out at the beginning of the negotiation that the interested powers presented, in 1929, a plan for the reform of mixed jurisdiction, which did not meet with the assent of the Ethiopian Government.

They will, moreover, call attention to the fact that on April 12, 1932 (Miazia 4, 1924),9 the Ethiopian Government expressed the desire that deliberative sessions be begun between the members of the Special Court, and also that rules of procedure be defined in a code.

The delegates of the Diplomatic Corps will emphasize the fact that the Ethiopian Government has just received full satisfaction on both of these points.

They will also make plain that they are in agreement with the terms of the above-mentioned note, dated April 12, 1932, in considering that new reforms are indispensable.

[Page 859]

They can then ask the Ethiopian delegates how His Majesty’s Government now regards these reforms.

During the discussion to follow the delegates will endeavor to accomplish the establishment of a mixed jurisdiction according to the suggestions in the following summary.

For a period of five years, renewable by tacit consent, the Ethiopian Government and the governments represented at Addis Ababa will adopt the system outlined in the following paragraphs for the adjudication of mixed cases in Ethiopia.
In Ethiopia all civil, commercial or criminal matters, between foreigners (whether nationals or protected subjects, and including legal persons) and Ethiopians (subjects or legal persons under either private or public law) shall be brought before a tribunal, to be called a Mixed Court of First Instance; exception being made, however, of cases of personal status, inheritance, and bankruptcy.
This Court at Addis Ababa will consist of three judges: an Ethiopian magistrate, a delegate of the interested legation or consulate, and a foreign career magistrate, who will preside in the Mixed Court of First Instance, and whose voice will be decisive in case of disagreement.
This president will be a magistrate belonging to one of the five following countries: Austria, Denmark, Netherlands, Switzerland, Czechoslovakia.
He will be nominated by his government and will enter the Ethiopian Government’s service for five years. His contract will be renewable.
This contract cannot be broken during its term except for duly established reasons of health, or by agreement between the Diplomatic Corps and the Ethiopian Government. In the second case, an indemnity equal to two months’ salary will be awarded by the Ethiopian Government to the departing magistrate.
The president of the Mixed Court of First Instance must know the French language fluently, and he will draft his decisions in that language.
His salary will be 100 gold pounds sterling per month.
He will be entitled to three months’ leave at the end of two and one-half years of residence, such leave not including time for the journey going and coming by direct route. His travel expenses from Addis Ababa to the capital of his country of origin will be paid him by the Ethiopian Government. He will retain his salary during the period of leave.
He will also be entitled each year, excepting the year of long leave, to a leave of one and one-half months with full salary, during court vacation.
When the contract is first made and at the expiration of each contract period the Ethiopian Government will bear the expenses of the magistrate’s journey going and coming, as well as those of his family.
Judgments of first instance can be appealed, under the reservations stated in paragraph 22, to a court of appeal called the Mixed Court of Appeal.
The Mixed Court of Appeal will sit at Addis Ababa and will consist of three judges: an Ethiopian magistrate, a delegate of the interested legation or consulate who must not have participated in the trial of first instance, and a president, who will be a foreign career magistrate, and whose voice will be decisive in case of disagreement.
The president of the Mixed Court of Appeal will belong to the High Magistracy of one of the countries listed in paragraph 4, but he may not be of the same nationality as the president of the Mixed Court of First Instance at Addis Ababa.
He will be appointed in the manner indicated in paragraph 5. He will be bound by the conditions in paragraphs 6, 7, 9, 10, and 11.
His salary will be 150 gold pounds sterling per month.
The Ethiopian Government will also engage a judge of first instance, on the terms indicated in paragraphs 4 and 5 who will normally preside in the Mixed Court of First Instance at Dire-Daoua or Harrar, and who will ensure replacement of the president of the Mixed Court of First Instance at Addis Ababa when the latter is on leave or absent for important reasons.
This magistrate will be bound by the conditions in paragraphs 6, 7, 9, 10, and 11. He may not be of the same nationality as the president of the Mixed Court of Appeal.
His salary will be 100 gold pounds sterling per month. He will not receive additional compensation for filling a vacancy as provided in paragraph 16.
The presidents of the Mixed Courts of First Instance or of Appeal will always be assisted by an Ethiopian interpreter who speaks French fluently.
The Addis Ababa Mixed Court will have a clerk of court belonging to the judiciary of one of the countries enumerated in paragraph 4, appointed by the Ethiopian Government, on nomination by his own government. This clerk of court will be engaged for three years and his contract may be renewed. His salary will be at least 60 gold pounds sterling per month. His travel expenses at the time of engagement and on expiration of his contract, for himself and family, will be paid by the Ethiopian Government. In case of renewal of engagement, he will be entitled to four months’ leave with full salary and travel expenses for himself and family.
This clerk of court must know French fluently.
There will be no appeal in civil matters when the amount concerned does not exceed 500 thalers. In criminal matters there will be [Page 861] no appeal when the sentence does not involve more than 600 thalers fine or one month’s imprisonment.
In trials of first instance, as also in appeal, the Court will be duly constituted even if the interested legation or consulate fails to send its delegate. The same will hold in the absence of the Ethiopian magistrate.
In criminal matters, the president of the Court may demand the services of the foreign officers employed by the Ethiopian Government, in order to carry out investigations.
Likewise in criminal matters the duty of Attorney for the State may be entrusted by decision of the president of the Court to one of the lawyers admitted to practice before the Court. This lawyer will be compensated.
Pending the drafting of Mixed Codes, the Court will try cases according to the fundamental law of the defendant.
The laws of procedure drafted by the Mixed Committee in July, August and September, 1933, will be adapted without delay and by mutual agreement to the new organization of the Court.
The Mixed Court of First Instance functioning at Diré-Daoua and at Harrar will consist of the foreign magistrate contemplated in article 16, the representative of the Ethiopian Government, and the consul or his delegate.
Pending the establishment of courts identical with those whose organization is provided above, a Mixed Court will function in all localities of the Ethiopian Empire where there is a permanent representative of a foreign power, this Court to consist of an Ethiopian judge and the said representative. This Court will have cognizance of all cases contemplated in paragraph 2.
Judgments rendered by the Court of First Instance at Diré-Daoua or at Harrar may be appealed to the Mixed Court of Appeal at Addis Ababa.
When the Ethiopian judge and the foreign representative cannot come to agreement on cases referred to them under the terms of article 30, the Mixed Court of First Instance at Addis Ababa will take cognizance of such matters in the first instance.
It remains understood that all the clauses of the Klobukowsky Treaty10 not in direct contradiction to the amendment to be made regarding judicial reform retain full force.
  1. Neither printed.
  2. File translation revised by the editors.
  3. Note not printed.
  4. Treaty of friendship and commerce between Ethiopia and France, signed at Addis Ababa, January 10, 1908, British and Foreign State Papers, vol. ci, p. 997.