By Esayas Hailemariam @RealEsayas
Addis Abeba – A year ago, on November 2, 2022, in Pretoria, South Africa, the government of the Federal Democratic Republic of Ethiopia (GoE) and the Tigray People’s Liberation Front (TPLF) signed a Permanent Cessation of Hostilities (CoHA). Every western country including the USA is welcoming the agreement and its achievements. The agreement was meant to end the two years of civil war raging in the country, but its foundational cracks are widening and the root causes deepening. Though signed not only by the parties to the conflict but also by an African Union (AU) panel of mediators and also with the US government, acting as guarantors, the Agreement is failing its most basic promises it made. Though the AU reported that the disarmament of Tigray Forces was largely fulfilled and Tigray formed an Interim Regional Administration (TIRA) per the Agreement, the Federal government’s failure to restore Tigray territories, protect Tigray civilians against Eritrean hostilities, and the flawed “Transitional Justice” system undermined the very essence of the Agreement. For these reasons, Tigrayans, unlike the western and UN envoys, believe that the Pretoria Agreement has not delivered what it promised.
While the cessation of hostilities has been achieved, Tigray may soon become a battleground for another round of war by the two dictators Abiy Ahmed and Isaias Afeworki. Tigray authorities are forewarned not to be part of such a war unless Tigray’s interest is in jeopardy and self-defense becomes the last resort. The Pretoria Agreement also failed to protect the people of Tigray from genocide and there is overwhelming evidence that genocide is being committed. The protection of civilians in the context of armed conflict, including the proscription of assaults on civilian entities, constitutes foundational precepts within the domain of humanitarian law, thus qualifying as jus cogens norms. Regrettably, the Pretoria Agreement, while acknowledging the imperatives of cessation of hostilities in general, fails to include a detailed clause for the protection of civilians in the event signatories of the Agreement revert to conflict. Furthermore, it inadequately outlines mechanisms for the imposition of accountability upon those individuals responsible for perpetrating attacks against civilians.
After a year into the signing of the Agreement, the Eritrean and Amhara forces have not withdrawn from Tigray, thus the return of Tigrayan IDPs to their habitual residence, home, land, and properties has been made impossible. The need for unobstructed humanitarian access and the reconstruction of Tigray has largely been disregarded, and the federal government appears to lack the motive to reconstruct war-torn Tigray. The GoE’s demands, mainly disarmament of the TDF, have progressed, recognition of the Ethiopian National Defense Force (ENDF) and their deployment in Tigray has been accepted as the only legitimate armed force in Ethiopia, and the federal authority in Tigray is restored.
While almost all the provisions of the CoHA assert status quo ante by restoring federal authority and allowing the ENDF’s return to Tigray, they fail expressly to order the withdrawal of Amhara forces and the return of all territories of Tigray, as provided under the 1995 Ethiopian Constitution. Article 10 of CoHA only states that ‘parties commit to resolving issues of contested areas in accordance with the Constitution of the Federal Democratic Republic of Ethiopia’. It fails directly to address the issue of Western Tigray or other areas of Tigray now under the control of Ethiopian, Amhara, and Eritrean forces. This is of critical importance because Western Tigray constitutes the only corridor that offers Tigray land access to the outside world, and therefore has been used as a military choke point to deny Tigray its links to international borders, hence access to supplies. Western Tigray is also an economic corridor for cash-crop agricultural production.
As outlined in the Agreement, the Ethiopian Federal Government pledged to address disputes concerning “contested territories” in alignment with the constitutional principles enshrined in the Federal Constitution of Ethiopia. This commitment entails the restoration of Tigray territories to their pre-November 2020 war status and the reinstatement of Tigray administrations, in accordance with Article 10(4) of the Agreement, until a lasting resolution is reached in line with constitutional principles governing the peaceful resolution of interstate land disputes. It has been almost a year since the Agreement was signed, and during this time, the Ethiopian Government has not demonstrated a significant commitment to the restoration of Tigray territories and administration. The Ethiopian government’s failure to restore the Tigray territories stands as an egregious breach of the agreement. This non-compliance not only violates explicit clauses but grievously undermines the fundamental principles of territorial integrity of one of the signatories, Tigray, and its regional sovereignty (as outlined under Article 8 of the 1995 Ethiopian Federal Constitution) the accord was designed to reinforce. The Federal Government of Ethiopia’s failure to comply with and breach of this landmark accord justifies an immediate amendment and renegotiation of the Agreement’s terms.
The CoHA deal establishes a Monitoring, Verification, and Compliance Mechanism to operate under AU auspices, with a Joint Committee and Team of African Experts. As currently formulated, the verification mechanism will not take off, let alone fly and land, unless reconstituted as a Joint UN-AU project that allows the full participation of the UN, the EU, and the US.
As ICHREE has already been terminated, the flawed transitional justice framework is now a smokescreen for impunity. The TPLF as a signatory of the Agreement has the legal and political imperative, through Article 15, to demand urgent amendments, incorporate a provision for an international accountability mechanism, and explore alternative avenues for enforcement. In the face of both legal and moral imperatives, immediate action is not an option; it’s a necessity. The Pretoria Peace Agreement currently lacks robust legal provisions within the context of the international legal framework to ensure the safety and protection of the Tigray region. Given these circumstances, I believe that amending the agreement to incorporate explicit provisions in this regard would be a commendable course of action.
The “Transitional Justice” system of the Pretoria Agreement is fraught with deficiencies, most notably lacking in impartiality, competence, and absence of political will- three indispensable attributes of any credible judicial mechanism. The overwhelming rejection of the Transitional Justice system by the nearly hundred global Tigrayan civil societies, palpably evident during the UN’s ICHREE mandate extension hearing, bears testament to a crisis of confidence in its impartiality. Tigrayans abroad and at home don’t trust justice will be served through the “Transitional Justice” system conceived at Pretoria because this mechanism defeats the very basics of Natural Justice- “Nemo judex in causa sua (judges can’t sit on their own case). The “Transitional Justice” system was proposed by the Ethiopian Government, its proceedings to be overseen by the Ethiopian Government and its politically charged judicial framework, and the suspect of the probe is the Ethiopian Government and its Eritrean and domestic allies. The litany of failures and legal insufficiencies plaguing the existing accountability framework in Ethiopia render an international mechanism not just desirable, but absolutely dependable. International mechanisms would operate free from domestic political pressures, thereby offering an unbiased platform capable of conducting impartial investigations. Tigrayans and friends of Tigray must reinforce a renewed effort to demand justice through a concerted effort.
On the other hand, the idea of self-determination holds a paramount position, especially in the context of ethnic federalism such as in Ethiopia. This principle encompasses the entitlement of ethnic and political groups to decide their political status and actively engage in the advancement of their economic, social, and cultural well-being. An issue of great significance in Tigray revolves around the Tigrayan population’s pursuit of self-determination. Regrettably, the Pretoria political accord, which was signed between the TPLF and the “federal government of Ethiopia, ’fails to acknowledge Tigrayans’ legitimate aspirations for self-governance. Furthermore, it overlooks the diverse voices within Tigray, as the TPLF single-handedly signed the agreement from the Tigray side.
Grounds for Amendment
Often, failure to comply with treaty commitments, changes in circumstances, and unexpected situations may necessitate an amendment to peace accords. The main objective of such an amendment is to reinforce original obligations and not renege the promises, as failure to adapt to the accord could lead a dissatisfied party to abandon the agreement, risking further atrocity.
In the context of a peace treaty that breaches a peremptory norm of international law, such as a disregard for principles of international human rights law and humanitarian law, serious concerns arise regarding its legitimacy and compliance with fundamental international legal standards. The Pretoria Agreement is deficient in upholding the aforementioned fundamental tenets, as it lacks the incorporation of a mechanism guaranteeing the independent and impartial investigation of grave breaches of international law and non-repetition of the core crimes. It also neglects to recognize the innate right to self-determination of the Tigray people and fails to provide robust safeguards for the protection of Tigray civilians from existing and potential threats.
Abiy Ahmed has begun his mobilization to “secure Ethiopia’s access to a sea or port”, but there exists a substantial risk of the Ethio-Eritrean conflict resurfacing. In light of the disarmament of the Tigrayans and the sale or transfer of war equipment, it raises the question of whether the Abiy regime can be relied upon in the event of war in Tigray.
The Way Forward
In light of the preceding discussions, it is evident that the TPLF, signatory of the Agreement, by invoking Article 15 of the Pretoria Agreement and international legal principles, must demand an amendment to Article 10 of the Agreement and add enforcement of the rest of provisions, within the framework of the Agreement. This amendment request should comprehensively address the critical deficiencies observed in the Agreement, including:
1. Establishing an Independent Mechanism: The amendment should explicitly mandate the establishment of an independent and impartial mechanism for the investigation of core international crimes, such as war crimes, crimes against humanity, and genocide.
2. Safeguarding Tigray’s Right to Self-Determination: The revision should reaffirm the inherent right to self-determination for the Tigray people, by international legal principles.
3. Ensuring Robust Civilian Protection: The amended agreement should provide robust and reliable protections for Tigray civilians, both in the present and in anticipation of future threats.
4. Securing Economic Well Being: The deliberate economic apartheid against Tigrayans throughout the two-plus-year war has severed their lifeline. Nearly every aspect of Tigray’s infrastructure has been decimated, unemployment has reached unprecedented levels, there is no conducive environment for investors, and Tigrayans continue to face restrictions on their right to engage in business and employment throughout Ethiopia.
Given this deadlock, the Agreement should include explicit provisions to address the economic challenges that Tigrayans are enduring.
Conclusion
The Ethiopian government’s resounding non-compliance with the Pretoria Peace Agreement demands immediate action. The TPLF, armed with the legal and moral mandate furnished by Article 15, must act decisively to amend Article 10 and other relevant provisions of the Agreement while demanding enforcement of the Agreement. The introduction of an independent international investigative mechanism stands as the missing linchpin, capable of rescuing the accord from its current state of impotence and offering a beacon of hope for the realization of true justice for more than one million Tigrayans. Given the Federal Government’s failure to restore Tigray territories and protect the safety of Tigrayans, a prompt amendment to certain relevant clauses is needed to establish a framework for addressing these issues. TPLF’s request for such an amendment is legally sound and aligned with the core principles of international law, thus fostering a more just and equitable resolution within the confines of the Pretoria Agreement. An unenforceable peace treaty like the Pretoria Peace Agreement lacking the political will and legal mechanisms can be challenging. To make it enforceable, both parties may need to renegotiate and clarify the terms, establish mechanisms for compliance, and possibly involve international organizations to oversee and mediate the process. On the other hand, effective enforcement of the Agreement could reinforce consideration of other peace agreements the Ethiopian Government signed with other groups, including OLF, ONLF, and other political and military groups in the country. It’s crucial to ensure that the treaty aligns with international law and is legally binding for all parties. The Pretoria Peace Agreement, despite being a legal document, fundamentally embodies a political accord. The effective execution of political concessions in such agreements is contingent upon the political will of all stakeholders. Should TPLF or the Transitional Interim Administration (TIRA) choose to implement the flawed “Transitional Justice” initiative while the Pretoria Agreements promises remain unfulfilled, it would be a momentous historical misstep.
Editor’s Note: Esayas Hailemarim is a legal professional with background in law and community activism. He earned his first law degree from Haramaya University College of Law in Ethiopia, and served as a prospective court judge before relocating to the US. In the US, he obtained a second law degree from the University of California, Berkeley, School of Law, specializing in International Law. Currently, Esayas works in the private sector. He can be reached at esayas.law@berkeley.edu
