Exploring Justice & Accountability for Tigray
I’ll first start with the pretext that I am not a lawyer by any means, nor do I have a complex understanding of international law or policies regarding human rights violations. But, I consider myself a decent listener and have learned quite a bit from speaking to people who work in these spaces. The following reflects these thoughts mixed in with some of my own.
As we already know, the war on Tigray has been marked with unimaginable atrocities– at least 600,000 people dead from violence, starvation, and other impacts of the siege; 120,000+ women and men survivors of conflict-related sexual violence (CRSV); 900,000+ in famine. These numbers are not just statistics. You take one individual, one story, and keep adding one more until you get to the hundreds of thousands–the millions–who have endured significant suffering over the past two years. The magnitude is heavy.
To work towards peace in Tigray and ensure that these atrocities do not recur, every individual must get the justice they deserve. In the diaspora, we have been quick to jump towards designating the atrocities a genocide and pursuing criminal accountability through the International Criminal Court (ICC). I am guilty of this as well. In an ideal world, this would be the best outcome. In the current U.S.-dominated, “we’ll support you if you support our interests” world, it is nearly impossible unless interests radically shift.
Genocide has become an extremely politicized term that is hardly ever employed, and the U.S. is among the few countries more likely to use it. It is clear, however, that the U.S. does not intend to release a public designation of genocide as they think it would hamper progress toward peace and cultivate a hostile relationship between Ethiopia and the U.S. As a matter of fact, in a recent interview, Molly Phee, U.S. Assistant Secretary of State for African Affairs, mentioned not wanting a broken Ethiopia or a broken Ethiopia-US partnership. On the ICC front, a case can only be referred to the ICC by:
1) A state who is party to the Rome Statute,
2) The United Nations Security Council (UNSC), or
3) The ICC Prosecutor.
Ethiopia is not a signatory of the Rome Statute, and the UNSC remains obstructed by competing world powers. Even if there were no obstructions, I doubt they would actively pursue this choice for the same reason given regarding U.S. geo-political maneuvering above. So that leaves the question—what does justice and accountability realistically look like for Tigray?
I. Keeping Tigrayan Interests at the Core
First, if we zoom out a bit, it is important we do the work to understand what justice actually means for victims. For some, justice means going back to their homes and regaining control over their lives, i.e. the right to return. For others, justice means active participation and holistic engagement of directly impacted communities in efforts to change policies, systems, and practices in place to ensure nonrecurrence. Of course, justice can also mean criminal accountability–some may prefer holding a court in Tigray to hold perpetrators accountable; others may prefer international courts. Pursuing any of these paths toward justice requires that we better understand the sentiment in Tigray, that of refugees, and that of the diaspora as a collective. We can also do a better job of educating Tigrayans on the various pathways to justice, so that they may know the extent of options they can pursue.
II. Human Rights Investigations
Calling for an independent investigation is a justified and reasonable ask. Yet, since the establishment of the United Nations-mandated International Commission of Human Rights Experts on Ethiopia (ICHREE), there has been significant pushback and, quite honestly, hate that has led to the hostile conditions in which the Commission’s experts are currently operating. By not allowing the ICHREE access to Ethiopia, the quality of the investigation is at risk. The U.S. has taken a positive step forward by tying eligibility, among other points, for the African Growth and Opportunity Act (AGOA) to ICHREE access to conflict-affected areas. Other states should consider mirroring these actions in ways that make sense to them and supporting the mandate to the fullest extent, including providing sufficient human and financial resources to drive a quality investigation.
The African Commission for Human and People’s Rights (ACHPR) has also been investigating the atrocities committed in Tigray and similarly faces challenges in access to Ethiopia. On top of this constraint, they are likely being silenced by the Abiy regime and the African Union (AU). If not already being done, it is critical that the ACHPR provide more frequent briefings on their investigation to the AU Peace and Security Council. More on the reason why further down below.
It is important to note, however, that both the ICHREE-led and ACHPR-led investigations are human rights investigations, not criminal investigations, meaning these do not result in perpetrators being held accountable in a court of law. Instead, these investigations will provide a view into the atrocities committed in Tigray and across other war-affected areas in Ethiopia and recommendations that may be used (by warring parties, other countries across the continent, and friends of Tigray/Ethiopia) as a foundation to propel human rights.
III. Criminal Accountability: Ethiopian Transitional Justice Mechanism
In terms of criminal accountability, the primary options being floated around are 1) an Ethiopian transitional justice mechanism and 2) an ad-hoc international criminal tribunal. The first was agreed upon in the Pretoria agreement signed by the Ethiopian and Tigray governments on November 2, 2022. We have all the right reasons to be worried. Trusting a state who has been at the forefront of atrocities against civilians to now lead efforts in justice and accountability is like adding salt to a wound. Having those involved in committing the crimes responsible for ensuring accountability to victims is far from just, feasible or adequate. A state-led effort would create conditions where survivors reasonably fear retribution and intimidation and lack trust in the process. A vast majority of Tigrayans would probably opt out of this option. Or, if they do participate, there is a high risk the imbalanced power relations would impact a comprehensive narration of survivor testimonies. If an Ethiopian transitional justice mechanism is truly the only option we have, then some questions need to be answered:
- How do we build some level of international and Tigrayan community-based oversight and accountability measures to ensure a truly just and fair process?
- How do we ensure the easy route of only prosecuting lower-level officials/leaders is not intentionally taken?
- How will victims be protected throughout and after the process?
- What are the best practices to employ, recognizing the process for justice and accountability should happen soon but also that we are navigating in a society whose social fabric very much still hangs by a thin thread?
IV. Criminal Accountability: Ad Hoc International Criminal Tribunal
From my limited understanding, an ad hoc International Criminal Tribunal would essentially be a court held in a country interested in supporting justice and accountability efforts–Kenya and South Africa could potentially be options here. This option would allow for more impartiality, but there are constraints. The AU Peace and Security Council and the UNSC have the power to establish this tribunal. We know the difficulties with the UNSC, but the AU Peace and Security Council is somewhat more unpredictable. Will they strengthen and further the work of the ACHPR in their investigation into Tigray, or will they idly stand by to prevent further conflict between warring parties?
If, in fact, a tribunal of this sort was established, another point to consider is that the perpetrators of these crimes are still in power–in powerful leadership positions to be clear. For comparison, the UNSC established an international criminal tribunal in 1994 to persecute people responsible for the Rwandan genocide. It was held in Arusha, Tanzania, and had jurisdiction over genocide, crimes against humanity, and other violations of the Geneva Conventions. The main leaders of this genocide, however, were no longer in power and largely fled to other countries, where they were later detained and brought to court. For Tigray, with some of the main perpetrators of the war still in high-ranking government positions in Addis Ababa, and considering the influence that comes with Ethiopia being the location of the founding of the Organization of African Unity (that later became the AU), it is likely the Ethiopian leaders may use their influence to lessen the degree of justice.
It is also unclear where exactly the Government of Tigray stands on justice and accountability post-signing of the Pretoria agreement. We do not know what was verbally agreed to as part of the agreement, meaning if the full degree of justice and accountability was swept under the rug in the name of achieving peace. Therefore, the question is not whether they’re still interested in pursuing it, but whether they are still pursuing it with the same scale and scope that the people of Tigray deserve, given the concessions made. Or are they now limited and bound by the agreement? Clarity is incredibly important here–not because they dictate what we in the diaspora push for, but because we need to understand if they will be a barrier to this already difficult journey ahead of us. As we still explore the best justice and accountability mechanisms for Tigray, I can, at the very least, commit to centering Tigrayan interests. It is imperative that the institutions that claim to support and protect human rights are held responsible in these efforts. Poor governance ultimately leads to insecurity. To drive long-term security and stability in the Horn of Africa, it is therefore in the best interest of regional and international actors that we see a just, transparent justice and accountability process all around.
Bserat– Omna Tigray Contributor, January 2023