for International Crimes
On Nov. 2, 2022, warring parties in Ethiopia’s civil war — the Government of the Federal Democratic Republic of Ethiopia (Federal Government) and the Tigray People’s Liberation Front (TPLF) — inked the Agreement for Lasting Peace Through a Permanent Cessation of Hostilities in Pretoria, South Africa. The peace talks were conducted under the auspices of the African Union and facilitated by the High-Level Panel for the AU-led Ethiopian Peace Process comprising Olusegun Obasanjo (AU High Representative for the Horn of Africa and former President of Nigeria), Uhuru Kenyatta (former President of Kenya) and Dr. Phumzile Mlambo-Ngcuka (former Deputy President of South Africa and member of the AU Panel of the Wise). The Agreement comes at a time when the conflict, which is largely concentrated in the Tigray region of Ethiopia, has claimed thousands of lives, and caused massive population displacement. Following the resumption of violent confrontations in August 2022, peace efforts kicked off to a slow and rocky start, with the conflict parties showing little enthusiasm amid apparent disorganization on the part of the AU Commission. Nonetheless, as Chris Olaoluwa Ògúnmọ́dẹdé noted, the Pretoria talks “represent[ed] the best hope for Ethiopians on both sides of the conflict.” While the prompt conclusion of the Agreement is indeed a welcome development, I argue in this piece that its success will depend on how the key provisions on accountability for serious crimes committed during the conflict are interpreted and implemented by the parties, and what role the African Union plays in that process. Specifically, a tribunal either established with the support of the AU, and over which the AU has significant administrative control, or one established and controlled entirely by the AU, is the most viable option for criminal accountability for the international crimes committed in the Tigray conflict.
Evidence of violations of international humanitarian law (IHL) and international human rights law (IHRL) during the conflict are well documented. The Ethiopian Human Rights Commission and the Office of the United Nations High Commissioner for Human Rights established a Joint Investigation Team (JIT) which released its report on Nov. 3, 2021. The JIT found evidence of violations of IHL and IHRL, some of which may amount to crimes against humanity and war crimes, as summarized in paragraphs 353-355 of the report.
The U.N. Human Rights Council also established the International Commission of Human Rights Experts on Ethiopia on Dec. 17, 2021, currently chaired by Kaari Betty Murungi. Its mandate includes “establish[ing] the facts and circumstances surrounding the alleged violations and abuses” of IHL, IHRL, and International Refugee Law, including “collect[ing] and preserv[ing] evidence . . . in support of ongoing and future accountability efforts,” and “provid[ing] guidance on transitional justice, including accountability.” In Section VI of its first report, which was issued in September 2022, the International Commission found evidence of serious violations of IHL and IHRL committed by all conflict parties since November 2020, some of which may amount to war crimes and crimes against humanity. The International Commission recommended in paragraphs 131–133 that the Government of Ethiopia, the Government of Eritrea, and the regional authorities of Tigray should “[i]nvestigate and bring to justice members of [their] forces who have committed serious violations of international human rights law and humanitarian law, including those that may amount to war crimes and crimes against humanity, in accordance with international and regional standards.”
The African Commission on Human and Peoples’ Rights (ACHPR) establishedthe Commission of Inquiry on the Tigray Region of the Federal Democratic Republic of Ethiopia (CoI) in May 2021. The CoI’s mandate includes investigating violations of IHL and IHRL, determining whether the violations constitute gross human rights violations, collecting evidence, and identifying perpetrators “with a view to contribute to the fight against impunity by holding those responsible for these violations to book.” Evidently, the CoI’s mandate was designed with an eventual accountability process in mind. Even though the CoI, chaired by the current ACHPR Chairperson Rémy Ngoy Lumbu, has kept a very low and rather secretive profile and has yet to release a report, its websiteindicates that it commenced operations on June 17, 2021.
Despite all the evidence of atrocity crimes already documented by the above mechanisms, processes for accountability remain underdeveloped and underexplored. The peace process was therefore expected to address the question of accountability, which it has done , albeit insufficiently.
Accountability Provisions of the Argument
Regarding accountability, one of the Agreement’s declared objectives is “to provide a framework to ensure accountability for matters arising out of the conflict” (Agreement, article 1.7). Article 10.3 of the Agreement elaborates:
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.
Considering the Federal Government’s resistance and hostility to the investigative efforts of the CoI and the U.N. Human Rights Council’s International Commission, it is commendable that the Agreement included a provision on accountability for the horrific crimes committed during the conflict. However, the provision as drafted is vague and lacks crucial details.
It is unclear what exactly “a comprehensive national transitional justice policy” means. As the African Union Transitional Justice Policy (AUTJP) notes in paragraph 46(v), a fundamental benchmark for peace agreements is the inclusion of comprehensive provisions on justice, accountability, and reconciliation. It would have been prudent for the Agreement’s drafters to spell out in detail the nature and form of transitional justice mechanisms to be established. This would considerably limit the Ethiopian government’s discretion regarding the nature and form of accountability, limit the space for self-interested manoeuvres by the government, and make it easier to hold the government accountable to specific and measurable commitments. Inspiration could have been drawn from the Revised Agreement on the Resolution of the Conflict in the Republic of South Sudan, concluded through an AU-supported peace process, which provides a useful model by specifically mandating the establishment of the Hybrid Court for South Sudan and providing sufficient detail in its mode of establishment, structure, mandate, and jurisdiction.
The AUTJP notes that justice and accountability, specifically investigating and prosecuting all sides to a conflict, are fundamental elements of transitional justice. The Ethiopian government has primary responsibility to ensure accountability for the crimes committed during the conflict, and the Agreement recognizes this primacy. Ideally, the Ethiopian judicial system ought to deliver on this commitment, and there is no indication that it lacks the infrastructural and personnel capacity to do so. However, the Federal Government’s commitment to holding perpetrators from all parties to the conflict accountable is doubtful.
First, the Federal Government is a major party to the conflict, and its armed forces have been implicated in war crimes and crimes against humanity (JIT Report, paragraphs 353–355; International Commission Report, paragraphs 85–99). It is therefore possible that the Federal Government would want to shield its armed forces from accountability. The JIT in fact raised concern, as summarized in paragraph 376 of its November 2021 report, that the scope of Ethiopia’s domestic investigations at the time did not cover the serious violations identified and did not meet international standards. Similarly, the International Commission’s September 2022 report, raised concerns regarding transparency, witness and victim protection, and due process in domestic accountability initiatives (International Commission Report, paragraphs 114–118). Further, because of the Federal Government’s reluctance to hold its own forces to account, there is likely a fundamental breakdown in trust between the Federal Government (and its institutions) and the TPLF (and the people of Tigray). As the AUTJP emphasises in paragraph 78, the confidence of affected communities in domestic processes is crucial for the implementation of the justice and accountability component of transitional justice.
Second, the involvement of Eritrean forces in support of the Federal Government further complicates matters. Eritrean forces have also been implicated in atrocity crimes by the International Commission (paragraphs 57–63, 70, 73, 85–99, 101–102, & 109 of its September 2022 report) and the JIT (paragraphs 353–355 of its November 2021 report). The International Commission noted that Ethiopia’s domestic processes have so far excluded crimes committed by Eritrean forces, and the Federal Government appears uninterested in pursuing this line of accountability (paragraph 118). As such, it is perhaps unwise to entirely entrust this crucial task to Ethiopian institutions, at least if the process is to be considered socially legitimate by its primary constituency, the Ethiopian people.
Nonetheless, the fact that the Agreement’s accountability provision requires consistency with the AUTJP means both that the conflict parties recognize the AUTJP’s relevance to Ethiopia’s post-conflict process and demonstrates their appreciation of the need to uphold contemporary standards of accountability. Thus, the Agreement provides an opportunity for its shortcomings to be remedied by reference to AUTJP standards. The AUTJP would then either provide a guiding framework to implement transitional justice measures consistent with the principles of national and local ownership and context specificity (paragraphs 28–32, 35–37) or enable collaboration between Ethiopia and the AU consistent with the principles of African leadership, cooperation and coherence, and capacity building for sustainability (paragraphs 24–27, 40–41). Therefore, and as Sareta Ashraph and Tadesse Simie Metekia separately observe, by demanding compatibility with the AUTJP, the Agreement indeed “provides an opportunity to seed justice” and “quell[s] concerns about accountability and justice,” its vagueness notwithstanding.
African Union-led Accountability Mechanism
If existing domestic judicial mechanisms are not available or are incapable of delivering the justice and accountability component of transitional justice, as is arguably the case in the Ethiopian context, the AUTJP in paragraphs 78–79 recommends the “use [of] special courts, extraordinary chambers or hybrid courts … [or] regional or international judicial processes that have jurisdiction.” The shortcomings identified above regarding the Agreement’s accountability provision can therefore be remedied by harnessing the AU’s authority and powers. The AUTJP emphasises the AU’s role in providing “overall strategic political leadership” to Member States undertaking transitional justice processes (paragraph 126), and the continental body’s legal framework empowers the AU to intervene in Ethiopia, a Member State, regardless of what the Agreement may or may not provide.
Article 4(h) of the Constitutive Act of the African Union recognizes “the right of the [African] Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.” Additionally, Article 4(j) recognizes “the right of Member States to request intervention from the [African] Union in order to restore peace and security.” The open-ended wording of Article 4(j) can be interpreted as envisioning a request by the territorial State with respect to its territory, or by another AU Member State on behalf of another Member State. The former instance would be a State exercising its sovereign prerogative while the latter would be a Member State exercising a right collectively conferred by State Parties to the Constitutive Act on one another.
Articles 4(h) and 4(j) neither specify nor prohibit any specific intervention, and instead give the AU discretion to determine appropriate forcible or non-forcible measures. The U.N. has invoked similar powers to establish the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda, and to authorize the conclusion of treaties with Sierra Leone, Cambodia and Lebanon for the establishment of the Special Courtfor Sierra Leone, Extraordinary Chambers in the Courts of Cambodia and the Special Tribunal for Lebanon. The ICTY and SCSL subsequently confirmed that the U.N. Security Council’s discretionary power to determine appropriate and suitable measures for the restoration and maintenance of peace and security includes the establishment of criminal tribunals, a view similar to that adopted by the International Court of Justice regarding the General Assembly’s establishment of the U.N. Administrative Tribunal.
As I and others have argued in further detail elsewhere, the AU’s powers of intervention therefore necessarily imply the ability to establish mechanisms for ensuring redress for grave crimes. The AU itself in fact previously adopted this interpretation. Relying on the recommendation of the Committee of Eminent African Jurists, which interpreted Article 4(h) and other provisions of the Constitutive Act as envisioning the establishment of ad hoc judicial organs, the AU Assembly mandated Senegal in 2006 to prosecute former President of Chad, Hissein Habré, on its behalf.
The AU can therefore invoke Article 4(h) to mandate the establishment of a tribunal to investigate and prosecute those most responsible for international crimes allegedly committed during the Tigray conflict. Similarly, Ethiopia or any other AU Member State can invoke Article 4(j) and invite the AU to intervene by establishing such a tribunal. The latter is, however, unlikely considering the Ethiopian government’s hostility to intervention and accountability and AU Member States’ traditional reluctance to interfere in the internal affairs of other Member States. In fact, the JIT Report, in paragraph 374, noted the possibility of a specialised tribunal established with AU involvement and included Recommendation C.3 that the Federal Government should consider establishing a specialised judicial mechanism and cooperate with regional and international organizations to pursue accountability.
Despite misgivings about how AU Commission Chairperson Moussa Faki Mahamat handled the Tigray crisis, and early claims of bias levelled against Olusegun Obasanjo, including by the TPLF, the AU as an institution still enjoys considerable legitimacy with the conflict parties, and that legitimacy is partly to thank for the success of the Pretoria process. An accountability mechanism established by or with the involvement of the AU, as opposed to a purely national process controlled by the Federal Government, would likely ensure the operational independence necessary to yield just dividends and win the confidence of affected communities. This would be in line with the AUTJP’s principle of African leadership which, among other topics, emphasizes the AU’s role in “provid[ing] strategic leadership and oversight of [transitional justice] on the continent” (paragraph 25).
One would hope that accountability for the international crimes committed during the Tigray conflict will not be sacrificed at the altar of an easy, but negative peace. As Mehari Taddele Maru and David Del Conte have convincingly argued, “stability should not come at the expense of six million lives, and potentially countless more.” If history is a guide, peace agreements that do not emphasize accountability for crimes committed during violent conflict often unravel partly because of grievances over the lack of accountability or the impunity resulting from that lack of accountability. It is unwise to leave the crucial task of accountability for the crimes committed during the conflict entirely to the Ethiopian government, itself an implicated conflict party. The second round of AU-led peace talks between the Federal Government and the TPFL aimed at ironing out details for the Agreement’s implementation continued in Nairobi from Nov. 7-12 , 2022. It was hoped that there was still room during this second round to negotiate and conclude an elaborate implementation framework providing for the nature of a criminal accountability mechanism, its structure, mandate, and jurisdiction. However, these talks ended without such framework.
Any hopes of holding accountable perpetrators of serious crimes during the Tigray conflict now lie in an AU-led accountability process, a heavy responsibility that the continental body should not shirk. It is imperative that the AU steps up to guarantee the success and sustainability of a peace process that it has so painstakingly created, by taking full advantage of its powers under the Constitutive Act and establishing a criminal accountability mechanism for the crimes committed during the conflict.
(c) 2022, Just Security