In-Depth AnalysisLaw & Justice

In-depth: Experts highlight outstanding issues as Ethiopia takes a step towards transitional justice

Picture: Addis Standard

By Abdi Biyenssa @ABiyenssa

Addis Abeba – War crimes, crimes against humanity, ethnic cleansing, and other forms of grave human rights violations, including massacres, arbitrary killings, gender-based violence, and forced displacements, have been committed against civilians amidst wars and conflicts in Ethiopia.

The northern region of Tigray is the most affected as a consequence of the two-year war, but atrocities of varying magnitude have been committed elsewhere, particularly in conflict-ravaged areas of the Amhara, Afar, and Oromia regional states, leaving victims without any sort of accountability and justice.

In November 2023, a grim report by Refugees International revealed that approximately 40–50% of girls and women in Tigray were subjected to gender-based violence during the brutal two-year war in the region. Out of these victims, more than 80% disclosed that they had been raped, and almost 70% reported being brutally gang-raped by armed groups.

Tibletsi Hagos, a woman in her thirties (name changed), was expelled from Sheraro, North western zone of Tigray, during the Tigray war. She arrived in Tembien Abi Adi on 29 November 2021 after walking barefoot for three grueling days, in an extremely weakened condition while being six months pregnant. In Abi Adi, where she hoped to find safe refuge, she was subjected to a shocking act of sexual violence.

Despite her harrowing ordeal, she managed to relocate to Mekelle, the capital of Tigray, where she gave birth to her baby. Yet, the consequences of the rape haunted her as she tested positive for HIV, adding a layer to her trauma. Two years later, she seeks justice not only for herself but for all women who have survived brutal sexual assault.

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Another victim, Ato Ando, a resident of Farta woreda in the South Gondar zone, Amhara regional state, lost his 19-year-old son, Amare, on 28 August 2023. Amare, a top-performing student at Gafat High School, was allegedly shot dead by government forces in his home during the ongoing militarized conflict in the region involving the non-state local militia Fano and the Ethiopian army. Despite the active conflict and a dysfunctional justice system, Ato Ando eagerly awaits the prosecution of his son’s killers.

In the Oromia region, Nagesso Berisso, a resident of Goro Dola district in the East Guji zone, tragically lost his life on 20 December 2020, allegedly at the hands of local government militia. A family member, who wished to remain anonymous, shared with Addis Standard that Nagesso had been a pastoralist until he was shot dead, accused of having links with the Oromo Liberation Army (OLA). Four years after the tragic incident, Nagesso’s family still awaits justice. The family member expressed frustration and sorrow over the complete lack of investigation into the crime and the failure to hold the perpetrators accountable.

The quest for justice of individuals like Tibletsi, Ando, and Nagesso’s families will have to solely rely on Ethiopia’s government-initiated transitional justice process, which is nearing the formulation of a national transitional justice policy. The process was launched based on recommendations from the joint investigation conducted by the UN Office of the High Commissioner for Human Rights (OHCHR) and the Ethiopian Human Rights Commission (EHRC), as well as the Pretoria peace deal reached between the Ethiopian government and the TPLF.

Article 10 (3) of the peace deal stipulates that “the Government of Ethiopia shall 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. The transitional justice policy shall be developed with inputs from all stakeholders and civil society groups through public consultations and formal national policy-making processes.”

In September 2023, an independent team of 13 experts concluded public consultations on transitional justice policy options, which had been ongoing across the country since March 2023. The team conducted 47 public consultation forums in all regions and the Dire Dawa city administration, along with an additional 11 forums in Addis Ababa. The experts also held 22 consultation forums with civil society organizations and other stakeholders, representing diverse voices.

According to a 270-page summary report prepared by the team of experts detailing the outcomes of the consultation forums, extensive inputs have been collected from the months-long consultations, enabling the formulation of a comprehensive and inclusive national transitional justice policy. The document highlights the policy alternatives preferred by the majority of the participants in the consultations and includes recommendations from the team of experts on key subject matters such as prosecution, truth-seeking, judicial processes, and redress activities, indicating what the forthcoming transitional justice policy could entail.

Based on the document, experts in the field have expressed doubt as to whether the national transitional justice policy, currently being formulated, will achieve its intended purposes.

“By delving into discussions about the technical intricacies of this document, my foremost concern is that we might be diverting attention from pivotal issues. These include questioning the authenticity of the transitional justice process in Ethiopia and, more fundamentally, contemplating the feasibility of achieving true transitional justice in the current context,” said Abadir Ibrahim (PhD), associate director of the Human Rights Program (HRP) at Harvard University School of Law.

According to Abadir, the assessment by the United Nations’ International Commission of Human Rights Experts on Ethiopia (ICHREE) not only identified flaws in the Ethiopian government’s transitional justice initiative but also asserted that it is strategically employed as a form of “quasi-compliance”. “In essence, the government’s involvement in transitional justice appears geared toward mollifying criticism and deflecting demands for accountability, rather than genuinely addressing its own transgressions and submitting itself to justice,” Abadir contended.

Tadesse Simie (PhD) is a senior researcher at the Institute for Security Studies and a co-researcher with the Harvard Humanitarian Initiative on Ethiopia’s Transitional Justice. Tadesse drew attention to the impact of the lack of inclusiveness in the team of experts, particularly the absence of representation from the Tigray region, in the process so far. His primary concern, however, lies in the meticulous execution of the proposed outcomes of the transitional justice process.

Reflecting on the trajectory of transitional justice in Ethiopia post-2018, Tadesse said transitional justice has progressed through three phases. “The initial phase involved denial, with those in power rejecting the concept of transitional justice. In the second phase, acceptance of transitional justice which led to the establishment of border and reconciliation commissions, and promise for accountability was observed. The third phase involved policy design, encompassing the green draft paper on policy options for transitional justice in Ethiopia, public consultations, and the subsequent document, and the formulation of the final policy document.”

The final phase, the implementation phase, which Ethiopia is yet to step into, is critical and necessitates the government’s unwavering political commitment, according to him.

Yet, the experts highlight some of the key outstanding issues that may overshadow the success of the transitional justice process observed in the summary report document.

The role of International Experts

Unlike the initial green paper that exclusively focused on domestic law for justice operations, the document detailing the outcomes of the public consultations incorporates all three tiers of the legal system: international expert, domestic, and customary dispute resolution mechanisms, Tadesse asserted.

Concurring with Tadesse, Abadir noted that the inclusion of non-Ethiopian experts, although not without its own challenges, may prove to be critical in Ethiopia’s context. “The multiple wars over the last couple of years have divided Ethiopians so thoroughly that the involvement of ‘outsiders’ as real and perceived independent arbiters is going to be needed. We must also be honest in admitting that some, many, or even most Ethiopians have publicly supported one side or another in the war, and Ethiopian colleagues who have ‘joined the mob,’ so to speak, are going to have to exclude themselves from the transitional justice process.”

Abadir stated that while this could create a deficit of local expertise, one should also take into account the amount of pressure Ethiopian experts may face from the government, and to a lesser extent, other armed groups, who have a stake in distorting the outcomes of any investigations as well as fact- or truth-finding activities.

“You do not have to go far to find examples of this, as the 2006 Commission of Inquiry for Addis Ababa has led to the exile of both its Chairperson and his deputy. Member of the former Kenyan Truth, Justice and Reconciliation Commission (TJRC) Ronald Slye narrated in his book the key role played by the non-Kenyan commissioners, including the late Ambassador Berhanu Dinka, during the most difficult phases of the Commission’s work. Without the external actors, the Kenyan commissioners would have been easily overrun by the political and security structures of the government,” Abadir argues.

Yet, Tadesse elucidated that the involvement of international experts is ambiguously articulated, lacking clarity in interpretation. “A structural framework should be established from the outset, granting space rather than operational control to international experts alongside national experts. While they cannot function as national experts, they can contribute as minority experts or assistant judges to ensure meaningful participation,” he conveyed, underscoring the need to explicitly define the role of international experts and acknowledging their potential inclusion in the prosecution team without direct appearances in court due to unfamiliarity with Ethiopian law.

The excessive role of the ‘Truth Finding Commission’

Tadesse expressed concern about the focus being predominantly on the proposed Truth Finding Commission, which has multiple responsibilities such as amnesty, reparation, memorialization, truth-finding, and customary court functions. He argued that broadening the Commission’s mandates could hinder progress, create complications due to overlapping responsibilities, and burden it with unnecessary bureaucracy.

Tadesse also highlighted the complexity of the issue of reparations, involving issues of pecuniary nature, symbolic reparations, collective reparations, and individual reparations, necessitating the oversight of an independent commission.

The Role of Federal and Regional Governments

Tadesse emphasized the importance of clarity in delineating the roles and responsibilities between regional states and the federal government in order to effectively implement transitional justice. He pointed out that some regional states have already established investigation and reconciliation commissions, so it is crucial to explicitly consider the role of each tier of government within the federal and regional state structure. He warned that the lack of clarity in this aspect could pose challenges in a federal state with multiple conflicts across different regions, urging proactive measures to address potential spoilers before they hinder the transitional justice process.

Tadesse emphasized the need for strategic planning in coherent justice operations, determining regional priorities for accountability, reparation, amnesty, and other aspects of transitional justice in various federated constituents like the Tigray, Oromia, and Amhara regions.

Tadesse further highlighted the significant challenge posed by the interplay between customary law and national law, particularly because customary practices may cover issues such as reparation and amnesty but often do not prioritize inclusivity, especially concerning women’s rights. He argued that careful consideration is needed to address and reconcile the inherent contradiction between customary law and human rights standards.

Tadesse claimed that “customary courts and dispute resolution mechanisms have largely proven to be ineffective, with many actors being influenced or controlled by the government. This raises concerns about the feasibility of achieving true transitional justice.

The experts also noted the importance of addressing other existing non-policy issues that are not addressed in the document, but have profound impact on the transitional justice process.

“We find ourselves in a situation where the sequence of events is not aligned appropriately, akin to placing the cart before the horse,” he asserted. “Compounding this issue is the apparent lack of enthusiasm for transitional justice among the parties involved in the Pretoria agreement and other conflicting factions in Ethiopia. The TPLF, on multiple occasions, has shown disinterest or outright rejection of the proposed transitional justice initiative. Reports even suggest that the Tigray regional government has established its own Genocide Investigation Commission,” said Abadir.

Unfortunately, it is not limited to the government and the TPLF; major political actors, both armed belligerents and unarmed opposition political parties, appear to lack significant interest in embracing transitional justice.

Abadir elucidated that the current situation also presents a significant ethical dilemma for conscientious human rights and transitional justice experts actively involved in the process. “If the Ethiopian government’s approach leans towards quasi-compliance, continued participation in the process could inadvertently endorse outcomes contrary to the intended goals of transitional justice. A critical assessment of the transitional justice process is notably absent in addressing how this complex dilemma can be effectively navigated,” he noted.

Additionally, he argued that one might inquire whether lending support to the government’s quasi-compliance initiative, while not endorsing those of its adversaries, such as the Tigray regional government’s Investigation Commission, could be construed as taking a partisan stance in the conflict.

Ongoing conflicts

“I am apprehensive about initiating a transitional justice process without a concerted focus on establishing a foundation for stability in Ethiopia. The concern lies in commencing transitional justice efforts without addressing the underlying conditions necessary for transitioning Ethiopia into a state where war crimes and crimes against humanity are less likely to recur,” Abadir stated.

“While, in theory, transitional justice is not inherently precluded by the presence of ongoing conflict, the practical feasibility in Ethiopia hinges on the existence or trajectory toward a genuine ‘transition.’ Without a clear movement from conflict to peace or from authoritarianism to democracy, discussions around transitional justice risk becoming impractical and detached from the current realities in Ethiopia.”

Tadesse explained that the ongoing armed conflicts in the Oromia and Amhara regions create significant challenges for the successful implementation of transitional justice. He emphasized the need for a peaceful resolution of these conflicts, especially as the implementation phase draws near. However, Tadesse argued against the idea that stability should take precedence over transitional justice, or vice versa, as he believes this notion lacks a strong basis. He stressed that it is crucial not to abandon transitional justice initiatives under the false pretense of pursuing stability. AS [/expander_maker]

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