16 May Accountability for Atrocity Crimes: How Should Ethiopia Implement its Commitment under the Agreement on Permanent Cessation of Hostilities?
[Wubeshet Tiruneh holds a Ph.D. in International Law from the Geneva Graduate Institute, Geneva, Switzerland.]
It has been six months since the Ethiopian government and the Tigray People Liberation Front (TPLF) – the two main parties to the armed conflict in Ethiopia – signed an agreement on permanent cessation of hostilities.The parties, among others, agreed on permanent cessation of hostilities, protection of civilians, humanitarian access, disarmament, and other transitional measures, including transitional justice policy.
Both parties have since taken various steps to implement their commitments under the Agreement. As a result, armed hostilities have ceased; humanitarian access has significantly improved; and basic services have been restored in Tigray. The TPLF fighters handed over heavy weapons to the Ethiopian national defence forces. The government in turn removed the terrorist designation of the TPLF. An Interim Regional Administration has also been established in Tigray.
While the implementation of many aspects of the Agreement are encouraging, the issue of accountability has so far received lesser attention. According to article 10 of the Agreement, the Government of Ethiopia has committed to ‘implement a comprehensive national transitional justice policy aimed at accountability, ascertaining the truth, redress for victims, reconciliation, and healing, consistent with the Constitution of FDRE and the African Union Transitional Justice Policy Framework’.
Indeed, the government has already established different mechanisms, such as the National Dialogue Commission and the “National Rehabilitation Commission”, which, if used effectively, can address some aspects of its commitment under article 10. However, no meaningful step has been taken to investigate and prosecute atrocity crimes committed in the context of the conflict.
This prompted international calls on Ethiopia to ensure accountability for serious crimes committed in the context of the conflict. Secretary Antony Blinken, for instance, during his visit to Ethiopia last March, urged Ethiopian authorities to ensure accountability for atrocities committed during the conflict. Foreign Ministers of France and Germany also echoed a similar call during their joint visit to Ethiopia in January.
In what can be regarded as a first important step, the Ethiopian government has recently published a draft policy options on transitional justice and opened for public consultations. The document provides different policy options for different aspects of transitional justice, including accountability. Ethiopia faces tough policy choices regarding the nature and the scope of any prosecution initiatives towards accountability.
This post therefore attempts to highlight how Ethiopia should implement its commitment to ensure accountability, particularly concerning nature and the scope of any prosecution efforts.
Locally owned Special Mechanism
The agreement does not explicitly provide as to what mechanism Ethiopia should use to investigate and prosecute atrocity crimes committed in the context of the conflict. This stands in contrast to other similar AU supported peace agreements, for example the Revitalized Agreement of South Sudan, which established the Hybrid Court with investigation and prosecution power. Instead, the agreement rather vaguely requires Ethiopia ‘to implement a comprehensive national transitional justice policy aimed at accountability…based on Ethiopian Constitution and the African Union Transitional Policy Framework’.
However, the African Union Transitional Justice Policy, which the agreement refers to, is not without guidance. According to paragraph 78 of the African Union Transitional Policy Framework, as a matter of primacy, justice and accountability component of transitional justice has to be delivered through independent national courts. The policy also provides an exception that where national courts lack capacity and the confidence of affected communities, steps should be taken to use special courts, extraordinary chambers or hybrid courts.
The capacity of and the confidence in the regular mechanisms is therefore an overriding consideration in determining whether Ethiopia should establish special mechanisms to implement its commitment under the agreement. The Ethiopian Human Rights Commission (EHRC) and the UN OHCHR recently consulted with affected communities on Transitional Justice related issues, including accountability, where participants expressed lack of confidence in the formal judicial bodies. According to the Advisory note issued based on this consultation:
For genuine accountability to take place, participants expressed the need to establish an independent and impartial investigation and prosecution body, as well as an independent special court (which may also be an independent special bench in the national judicial system).
Lack of confidence in the regular prosecution and judicial bodies mainly stems from their susceptibility to political influence, particularly considering that persons who likely bear responsibility are in power. As I also argued in my EJIL:Talk post, crimes against humanity, which the US State Department recently determined to have been committed in the context of the conflict, is not recognized under Ethiopian criminal law, which, in effect, renders regular mechanisms unable to investigate and prosecute these serious crimes.
With these limitations considered, it is unlikely that the regular mechanism will be able to effectively ensure accountability. Accordingly, if there is indeed a political will to ensure accountability and discharge its obligation under the peace agreement and other international laws, Ethiopia should consider establishing special mechanisms with adequate safeguards of independence and with a power to investigate and prosecute serious crimes based on international standards.
Beginning the Temporal Scope on 3 November 2020
The commission of serious crimes in Ethiopia did not start following the outbreak of an armed conflict in Northern Ethiopia on 3 November 2020. Long before the armed conflict, various human rights violations and abuses, which may constitute serious crimes, were committed in Ethiopia. Accordingly, the temporal scope of investigation and prosecution efforts is another important issue that needs to be carefully addressed in the transitional justice policy.
Limiting the temporal scope of accountability efforts from 3 November 2020 would exclude crimes committed before the armed conflict, particularly those committed by the TPLF while it was in power. However, a temporal scope that commences earlier, with a view to encompassing all crimes committed, would overburden the prosecution and compromise the efficiency of the process.
Accordingly, the temporal scope should generally be guided by weighing justice and efficiency considerations. In the prevailing context, using 3 November 2020 as the beginning of the temporal scop, being the day TPLF attacked the northern command of the Ethiopian armed force and the PM of Ethiopia ordered the armed forces to repulse the attack, would be an appropriate choice for the following reasons.
First, the date ensures that a significant portion of serious crimes committed in Ethiopia would be encompassed without overburdening the court and the prosecutor. Second, while Ethiopia has an obligation to investigate and prosecute all serious crimes committed within its territory, its commitment to ensure accountability under the Agreement relate to those committed within the context of the conflict since 3 November 2020 by parties to the conflict. Third, efforts have been made after Prime Minister Abiy Ahmed came into power to prosecute those responsible for crimes committed before 3 November 2020, particularly those committed while TPLF was in power.
It is also important to note that the mandate of the International Commission of Human Rights Experts on Ethiopia is also temporally limited to violations committed since November 2020. So, if the national accountability efforts need to be effectively complemented by the works of the Commission, it is important to align their temporal scope.
Spatially not Limited to Certain Regions of Ethiopia
Serious crimes committed in the context of the conflict since 3 November 2020 are often assumed to have occurred only within certain geographically limited areas in Ethiopia. This could be the reason why various national and international investigations, including the joint investigation conducted by the UN, OHCHR and EHRC, often limit their spatial scope in Northern Ethiopia, particularly in Tigray, and to some extent in the Amhara and Afar regions. In part, it is understandable since these are the regions where armed hostilities were occurring between the government forces and the TPLF.
However, equally serious human rights violations that were directly connected to the conflict in northern Ethiopia have been committed in different parts of Ethiopia and where there were no actual armed hostilities. There were, for instance, reports of mass arrests, detentions and ill-treatment of people reportedly of Tigrayan origin on suspicion of being linked to the TPLF in different parts of the country, including in the capital Addis Ababa. These acts were committed in the furtherance of the armed conflict in northern Ethiopia no matter where they occurred.
Despicable atrocities, particularly targeting civilians of Amhara origin, were also committed in western and southern Ethiopia in the context of armed conflict with the Oromo Liberation Army (OLA). While the conflict between the government and OLA may meet the required level of intensity and organization on its own to qualify as non-international armed conflict, it is not entirely distinct from the larger conflict between the government and the TPLF, particularly considering the alliance that TPLF and OLA struck to support each other. Crimes committed by OLA in different parts of Ethiopia could therefore have nexus, depending on the purpose and the manner in which they are committed, with the armed conflict between the Ethiopian government and the TPLF.
So, geographically limiting investigation and prosecution efforts only to those committed in Northern Ethiopia would in effect mean allowing impunity for similar, if not more, horrific crimes committed in different parts of Ethiopia within the same period. This could also affect the legitimacy of the process among Ethiopians as it would send a wrong message that it matters only when a certain area and group is attacked.
Accordingly, a broad geographical scope covering the entire territory of Ethiopia should be adopted so that all serious crimes having nexus with the armed conflict between the government and the TPLF can be investigated and prosecuted, regardless of the region or the area they are committed.
Addressing the Most Responsible
Relating to the personal scope or focus of investigation and prosecution initiatives, the transitional justice policy also needs to explicitly highlight the need to address the most responsible who have enabled or failed to prevent the serious crimes. Such explicit affirmation is necessary because of a concern that, due to political or peace considerations, only low-level perpetrators or foot soldiers would be pursued by sidestepping the responsibility of commanders. The concern was also shared by the Joint Investigation Team of UN, OHCHR and EHRC which in its report stated that:
The JIT is also concerned that the national institutions may not be sufficiently addressing issues of command responsibility for the violations they are investigating. While holding direct perpetrators – often foot soldiers – responsible is important, to deal with impunity meaningfully, it is equally important to address the role of persons exercising command responsibility
Indeed, article 28 of the Ethiopian Constitution and other international instruments to which Ethiopia is a party foreclose the possibility of granting amnesty to persons who are alleged to have committed serious crimes, such as genocide, summary executions, forcible disappearances or torture. The obligation of states under article 6 (5) of Additional Protocol II to ‘endeavor to grant the broadest possible amnesty to persons who have participated in the [non-international] armed conflict’ also does not relate to persons who are alleged to have committed serious crimes.
However, there is always a process or strategy of identifying and selecting suspects who are going to be investigated and prosecuted, as it is practically difficult to prosecute all persons who are alleged to have committed serious crimes. So, the transitional justice policy needs to provide a guarantee that this process or strategy will not be used to allow the most responsible escape responsibility, by exclusively or disproportionately focusing on direct perpetrators or foot soldiers.
The Ethiopian government has so far under prioritized, if not ignored, its commitment of ensuring accountability in the implementation of the Agreement on Permanent Cessation of Hostilities. Indeed, the adoption of a draft transitional justice policy and its opening for public consultation is an important step in dealing with atrocity crimes committed in the context of the conflict, including through accountability. However, Ethiopia’s ability to discharge its commitment ultimately depends on the nature and scope of investigation and prosecution efforts. Accordingly, the nature and scope of investigation and prosecution efforts should be carefully addressed in the final transitional justice policy.