In-Depth AnalysisLaw & Justice

In-depth: Is impunity for war crimes, crimes against humanity looming in Ethiopia?

A man passes by a destroyed tank on the main street of Edaga Hamus, in the Tigray region, in Ethiopia, on June 5, 2021. (Photo:VOA)

By Zelalem Takele @ZelalemTak11163

Addis Abeba – In its final report to the UN General Assembly, before its mandate was expired on 04 October 2023, the International Commission of Human Rights Experts on Ethiopia (ICHREE), which was established in 2021 to investigate human rights abuses committed during the Tigray war, detailed a concerning human rights landscape, marked by executions, torture, sexual violence, and attacks on children, which according to the commission persisted despite a ceasefire agreement last year.

ICHREE chair, Mohamed Chande Othman, in his parting remarks, said “we found evidence of war crimes and crimes against humanity committed on a staggering scale. In the region of Tigray, we believe further investigation is necessary to definitively determine the occurrence of genocide against people in Tigray.”

With the termination of the mandate of the UN rights experts on Ethiopia, marking effective lack of any sort of international scrutiny, after AU’s Commission of Inquiry on the Situation in the Tigray Region was also quietly liquidated in June 2023, victims of these crimes will have now to look up to Ethiopia’s homegrown transitional justice program for justice and accountability.

The transitional justice program was initiated following the signing of the Pretoria Peace Agreement and pursuant to Article 10 (3) of the agreement which  stipulated 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”.

Western powers including the US and the EU who have been pushing the needle on accountability through the outcome of ICHREE’s independent investigations, since the start of the war in November 2020, seems to have backpedaled from their commitments and are now actively supporting the transitional justice program following the Pretoria Agreement.

Experts and rights defenders, however, express concern about the effectiveness of the transitional justice program which began in March 2023 by conducting public consultations to consider different transitional justice policy options. These consultations concluded in September 2022, and the Ministry of Justice has announced that the resulting draft policy will be made public this month.

Human rights organizations, including Human Rights Watch and Amnesty International, alongside ICHREE commissioners, have openly criticized the termination of the commission’s mandate, advocating for a new UN-led investigative mission to persist with the independent scrutiny of the human rights conditions in Ethiopia.

The commission’s tenure concluded last month without renewal, despite its extensive report on atrocities and war crimes in Ethiopia’s Tigray, Amhara, and Afar regions, and urgent appeals from human rights groups for its continuation.

From its inception, the Ethiopian government opposed the ICHREE, challenging its establishment calling it “politically motivated”, campaigning to defund it, and obstructing its investigative work within Ethiopia. Thus, ICHREE has been skeptical of Ethiopia’s commitment to justice and accountability, accusing it of quasi-compliance and suggesting the domestic efforts may merely superficially address justice while eschewing thorough international examination. 

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ICHREE expert Radhika Coomaraswamy summed this situation up bluntly in her remarks, stating “hopes for domestic accountability are extremely remote.” Noting that national reconciliation efforts are floundering amid continued mistrust between parties, ICHREE chair Othman further stressed that steadfast external engagement remains essential until justice is fully delivered for victims.

The commission’s real failure transpired not at the moment of its non-renewal, but earlier, when it could neither persuade nor compel the Ethiopian government to grant access.”

Befekadu Diriba, human rights officer

Abadir Ibrahim, associate director of the Human Rights Program (HRP) at Harvard University School of Law, contends that the International Commission on Human Rights Experts In Ethiopia (ICHREE) had the potential to be a pivotal ally in bolstering human rights efforts within Ethiopia. He reasons that ICHREE could have supplemented the work of local advocates, especially given the challenging context of powerful actors, accused of human rights violations, controlling the country’s coercive apparatus. Ibrahim believes that the international clout and investigative prowess of ICHREE could have shielded local human rights defenders from undue pressure and helped prevent a culture of impunity.

Echoing Abadir’s sentiments, Befekadu Diriba, a senior human rights officer at the Human Rights Defender Center, recognizes ICHREE’s unique position as an independent entity created by an international body. He remarks on the significance of its reports in bringing to light the harsh realities of atrocities on the ground.

However, Befekadu critiques ICHREE’s efficacy, pointing out that despite consistent resistance from the Ethiopian government against international scrutiny, the commission’s inability to set foot in the country raised doubts about the authenticity of its findings. He suggests that the commission’s real failure transpired not at the moment of its non-renewal, but earlier, when it could neither persuade nor compel the Ethiopian government to grant access.

Befekadu further speculates that the discontinuation of ICHREE, despite the persistent violence in various Ethiopian regions, might signal to observers that its initial establishment was driven more by the geopolitical interests of Western nations than by a commitment to safeguarding human rights.

In light of these circumstances, Befekadu advocates for a redirection of focus toward the transitional justice process currently overseen by the Ethiopian government. However, he maintains a critical stance, observing that the draft proposal, while ostensibly addressing grievances dating back to 1991, seems primarily crafted to superficially reconcile recent conflicts.

Previously, Abadir argued that if the government succeeds in shutting down international fact-finding initiatives like the ICHREE, it will be able to easily influence local processes to achieve its desired outcomes.

Reiterating this, Abadir notes that while national or subnational solutions may be most sustainable, his main concern with Ethiopia’s current transitional justice approach is that it seeks justice without a political transition – whether to a stable, participatory system or from war to peace. Thus, transitional justice at this point makes little sense without some form of accompanying political shift.

He points to Ethiopia’s problematic past initiatives as examples, such as the 2018 Reconciliation Commission designed to fail and 2006/2004 commissions of inquiry in Oromia, Addis Ababa and Gambella undertaken without political change and aimed at superficial compliance.

Befekadu shares Abadir’s concerns regarding the conspicuous absence of international involvement in the transitional justice process. He warns that an over-reliance on domestic government institutions could potentially result in inefficiencies or the co-optation of the process by the ruling party, undermining its integrity and effectiveness.

EHRC for Truth Seeking?

The non-renewal of the UN mandated International Commission of Human Rights Experts on Ethiopia (ICHREE) and the liquidation of AU’s Commission of Inquiry on the Situation in the Tigray Region, has shifted the spotlight towards domestic institutions like the Ethiopian Human Rights Commission (EHRC) for carrying forward the mandate of truth seeking which is one of the pillars of transitional justice. 

In his analytical piece, “The Ethiopian Human Rights Commission: A Champion of Transitional Justice?” Abadir Ibrahim raises concerns about the EHRC’s capacity to independently investigate allegations of war crimes and promote accountability, particularly in the void left by the expiration of ICHREE.

Abadir highlights initial credibility issues faced by the EHRC post-reform, emphasizing controversial pronouncements by its chief commissioner, Daniel Bekele, which he believes have compromised the Commission’s impartiality and ability to engage with all ethnic groups effectively.

He critiques the EHRC’s reporting during the civil war, asserting an institutional bias reflected in the disproportionate emphasis on violence in Mai-Kadra, insufficient reporting on state-perpetrated atrocities in Axum, and the neglect of the humanitarian blockade in Tigray.

Moreover, Abadir asserts that the EHRC tacitly opposed ICHREE’s investigations and challenged its findings, demonstrating a pattern of “quasi-compliance”, superficially endorsing accountability while evading genuine scrutiny.

Abadir concludes that the EHRC’s history of partisanship and opposition to independent inquiry undermines its credibility in transitional justice processes related to war crimes allegations, suggesting that substantial internal reform is necessary for it to be an effective agent in these processes.

Echoing Abadir’s concerns, Befekadu highlights the EHRC’s lack of trust among the Ethiopian populace, a crucial factor for any institution involved in transitional justice. He points out the problematic nature of the Commission’s semi-governmental status and the precariousness of the Chief Commissioner’s position, being appointable and removable by the Prime Minister, which could cast doubts on the EHRC’s impartiality.

For instance, recently the interim administration claimed that the EHRC’s assertions of many displaced Tigray residents returning home and receiving aid were inaccurate, and millions of Tigray natives remain displaced and in need of humanitarian assistance. The interim administration also urged the federal government to take corrective action in response to the EHRC’s report, which they described as “irresponsible misinformation.”

Furthermore, Befekadu questions the EHRC’s institutional capability to conduct comprehensive monitoring and investigations nationwide to identify past and present injustices and grievances, and to discern which cases necessitate reconciliation and which require accountability.

For these reasons, Befekadu shares the view that the EHRC is incapable of conducting the fact-finding process independently. Relying on the EHRC, he argues, seems to reinforce what is termed as a “quasi-compliance” attempt by the government, further entrenching the skepticism surrounding its role in Ethiopia’s transitional justice landscape.

Gaps in Ethiopia’s Legal System

In its final analysis before expiration, the United Nations Commission of Human Rights Experts on Ethiopia (ICHREE) spotlighted substantial gaps in the country’s legal and judicial framework that could critically undermine meaningful accountability and reconciliation through transitional justice mechanisms.

The ICHREE cited the lack of judicial independence and impartiality, deficiencies in military court proceedings, and prosecutorial dependence on the Ministry of Justice as issues. The Commission also noted Ethiopia’s legal framework lacks provisions to effectively prosecute international crimes like those in the Rome Statute

Supporting these findings, a research by Lawyers for Human Rights (LRH) pinpointed significant gaps in Ethiopia’s legal system concerning the prosecution of major international crimes, such as genocide, war crimes, and crimes against humanity. This research outlined the absence of explicit legal definitions and penalties for crimes against humanity that align with international law, and it underscored that torture, while recognized, is not treated as an independent criminal offense.

Befekadu Diriba acknowledges the critiques in the research, emphasizing that the absence of detailed stipulations within Ethiopia’s criminal code to actually prosecute such acts remains a critical void. As Befekadu elucidates, “many of these grave crimes are not clearly codified in our current criminal code.” This reveals a disconnect between obligations assumed under international law versus current domestic statutes and enforcement capacity.

The study also finds “significant weaknesses” in bodies tasked with ensuring accountability. It flags concerns about the independence and impartiality of the judiciary, particularly military courts now holding jurisdiction over international crimes involving defense forces.

Echoing this Befekadu comments that an individual outside the military domain cannot be readily held legally accountable in court for crimes against humanity under the present framework. This hampers the thorough prosecution of potential crimes. He also notes limitations in the military court system, which can only address personnel within defense forces. This leaves a vacuum where civilian actors who committed similar atrocities during conflict remain untouched, outside the law.

In Befekadu’s view, the legal scope requires expansion to encompass and provide judicial power over all potential categories of alleged perpetrators if transitional justice aims are to be furthered. Finally, he points to the current lack of adequately trained legal personnel equipped to handle complex international criminal cases as an additional impediment.

Befkadu concluded that without addressing these fundamental shortcomings, the transitional justice process in Ethiopia would fail to resolve the entrenched issues afflicting the nation, thus impeding the path to meaningful accountability and reconciliation. AS

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