Source: Ethiopia Insight
23 May, 2023
Ethiopia’s proposed national transitional justice mechanism cannot succeed in bringing about justice to victims, but any international process faces massive barriers.
Since Abiy Ahmed’s rise to power in 2018, Ethiopia’s human rights situation has deteriorated from bad to worse, and virtually nothing has been done to hold the perpetrators accountable.
As a way forward after the Pretoria Agreement was signed by the federal government and the Tigray People’s Liberation Front (TPLF) last November, Ethiopian domestic law – which is the basis for the transitional justice mechanisms vaguely outlined in the Pretoria Agreement – is unsuited to achieving accountability.
The reasons why a national transitional justice and accountability plan should be rejected include: (1) the government’s intent to hide crimes could result in selective accountability; (2) the impracticality of prosecuting Eritrean forces using Ethiopian criminal laws; (3) questions over the impartiality of national courts; (4) the potential of a state-owned justice system shielding government authorities from accountability, and; (5) gaps in the criminal law of Ethiopia.
The difficult truth is that, although internationally-led transitional justice and accountability would risk undermining the peace process in the immediate term, such mechanisms are the only way to address the legacy of impunity and deter future atrocities.
Ethiopia’s catastrophe is driven by extreme polarization, years of conflict, government security forces’ abuses, and attacks by insurgents across the country.
Serious and widespread human rights violations in recent years have arguably constituted war crimes, crimes against humanity, ethnic cleansing, and even genocide.
The scale of the devastation is vast.
The sites of horrific massacres and mass graves dot the country. Hundreds of thousands of innocent people have been killed, disabled, raped, displaced, and lost their property and loved ones. Some minorities, such as the Qimant, have faced threats to their survival as a group.
Federal authorities are directly or indirectly responsible for many of these crimes, while others have been committed by armed groups operating in Tigray, Oromia, Amhara, and elsewhere.
Divisive, and inflammatory hate speech by government officials, including Prime Minister Abiy Ahmed, helped drive various ethnic-based conflicts. Some of this hate speech, particularly targeting Tigrayans, is reminiscent of the language used during the Rwandan genocide, with political leaders comparing the TPLF to “viruses” and a “cancer” that needed to be eradicated during a period when virtually all Tigrayans were suspected of being part of or supporting the TPLF-led armed resistance.
The federal government has also spent vast amounts of taxpayers’ funds fighting its own people rather than developing the country and its economy. It even invited foreign Eritrean forces to fight its citizens and stood by as they committed unspeakable brutalities against Tigrayans.
After two years of deadly war in Tigray, a fragile peace deal was signed by the warring parties in Pretoria last November. While the Pretoria Agreement was critical in silencing the guns in the north, it cannot change the tragic reality of the crimes already committed.
Moreover, armed conflicts of varying magnitude persist in various locations, including in Amhara and Oromia regions.
Many of the federal forces fighting in Tigray were redeployed to Oromia – where a more low-level but nonetheless brutal war has been raging since 2019 – after the conclusion of the Tigray conflict. Violence has generally abated somewhat in recent months, and peace talks were initiated between the rebel Oromo Liberation Army and the federal government.
Instability in Amhara is spiraling and threatens to produce another sustained insurgency. The wartime partnership between Amhara nationalists and the federal government against Tigray has crumbled, destabilizing the region as the two former allies turn on each other.
Amid this turbulence, federal authorities have shown no willingness to punish those responsible for abuses and have instead sought to undermine any form of investigation and bury the truth.
The common practice of governments past and present in Ethiopia has included the torture and detainment of opposition party members, journalists, activists, critics, and writers. Many are held without charges and are arbitrarily detained without court hearings for long periods.
The last few years in particular have been marked by the government’s use of violence to silence dissent, notably in Tigray, Oromia, and Amhara. Arbitrary arrests and detention justified through anti-terrorism legislation have been used to crush anti-government protests.
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The federal government has repeatedly silenced dissent through violence and hiding documentation of its crimes, repeatedly shutting down telecommunications, switching off the internet, and expelling, arresting, and deporting foreign journalists.
For example, journalists from the New York Times and The Economist were expelled, a reporter from Associated Press was arrested, and the International Crisis Group’s senior analyst was deported. Meanwhile, there are few avenues for private media in Ethiopia and all state-owned media funded by taxpayer dollars serve as government mouthpieces.
In addition, human rights organizations were prevented from accessing Tigray and federal authorities tried to shut down the AU Commission of Inquiry and UN panel of experts. The only investigation that was allowed involved the UN working in tandem with Ethiopia’s state-funded Human Rights Commission on Tigray, and still many crime scenes were not visited across the region.
There are several bottlenecks to achieving justice in Ethiopia. For instance, Eritrean involvement in the Tigray conflict was particularly brutal, but it’s impractical to try and bring Eritrean leaders and forces to justice using Ethiopian criminal law.
The impartiality of Ethiopian courts is also doubtful, as they repeatedly intervene in cases to support the authorities. Under pressure from political figures, courts have withdrawn cases and freed those who suspected of serious crimes.
It seems an unrealistic dream to fully realize justice and accountability for atrocity crimes in Ethiopia when the rule of law is undermined and authorities act above the law.
The Ethiopian government is clearly trying to devise a state-owned transitional justice mechanism to shield itself from external accountability for atrocity crimes. This modality opens the door for selective accountability to exempt high-ranking authorities.
It would be a mistake to think government officials will effectively prosecute themselves and those who acted on their behalf.
What’s more, this poorly defined state-owned transitional justice plan focuses only on atrocity crimes committed in the northern part of Ethiopia while neglecting mounting crimes across the country, particularly in Oromia.
Gaps in Ethiopia’s Criminal Code present another serious obstacle. While it criminalizes genocide and war crimes, specific mention of crimes against humanity is absent.
The code’s Articles 270–280 criminalize crimes committed in the context of armed conflicts, such as murder and sexual assault. But it doesn’t recognize crimes that did not occur during armed conflict that still amount to crimes against humanity.
Likewise, forced displacement of people is not recognized even as a standalone crime under Ethiopian criminal law.
This raises serious questions about how the perpetrators of these crimes can be prosecuted as there appears to be no possibility of trying such crimes as crimes against humanity. It’s possible the courts plan to prosecute these acts as ordinary, separate crimes that do not reflect the scale of the atrocities and fail to send an effective deterrent message.
The U.S. Secretary of State recently argued that “those in positions of command must be held accountable” for atrocity crimes. Yet meanwhile it has begun to normalize bilateral relations and embrace officials for making peace, including Prime Minister Abiy.
To avoid further crises in Ethiopia, the government should allow an external process of justice to proceed, including accountability for the crimes it committed.
Disappointingly, the UN Human Rights Council and European Union (EU) acknowledged the state-owned plan for transitional justice and accountability as the way forward. As such, the international community failed to prevent the numerous crimes committed across the country and is now seemingly abandoning the pursuit of effective justice procedures.
This raises the question of why the international community is so reluctant to launch an external process to achieve justice and accountability in Ethiopia.
The International Criminal Court (ICC) route would be complex as Ethiopia and Eritrea are not party to the Rome Statute. However, the ICC issued an arrest warrant for President Vladimir Putin for serious crimes perpetrated in Ukraine even though Russia is not a state party to the Rome Statute. The ICC should therefore apply the same procedure to Ethiopia and Eritrea.
Given the many national and international obstacles, achieving justice for atrocity crimes committed in Ethiopia looks impossible. However, unless an effective deterrent is sent to actors committing atrocity crimes, regimes across the world may be further emboldened.
Probing atrocity crimes alone is not a success unless there is justice and accountability. The lack of punishment for past violations haunts the present in Ethiopia and they will continue unless deterred.