Transitional Justice in Ethiopia: Will Tigray Pay the Price for Peace?

Transitional Justice in Ethiopia: Will Tigray Pay the Price for Peace?

In late December 2023, the Office of the United Nations High Commissioner for Human Rights (OHCHR) and the Ethiopian Human Rights Commission (EHRC) published a report with their findings on transitional justice (TJ) from victim consultations across Ethiopia. They conducted 15 consultations in the Afar, Amhara, Harari, Oromia, Somali, and Tigray regions and in the Dire Dawa city administration with a total of 805 participants representing victims and victims’ families and other community members.

The report ultimately shows that victims and survivors across the country have similar abstract needs, among them peace, security, justice, and non-recurrence. However, in this particular instance, the details are incredibly important as they showcase conflicting desires amongst communities. In moving forward with what works for the majority, we are likely to see pain and suffering invoked for the minority, as justice and accountability are delicate issues that require sensitive and nuanced solutions. I continue to have serious concerns about a domestic-led transitional justice mechanism being the sole justice and accountability effort for Tigray, and this report heightened those concerns.

In this article, I dive deeper into these concerns, highlighting the diversity of needs and preferences among victims across the country, making it challenging to find one solution that will satisfy all. I will explore the challenges and limitations of a domestic-led criminal accountability approach, particularly in addressing the specific needs of Tigray, as well as various regions’ views on truth-seeking, reparations, and traditional mechanisms of conflict resolution.

Criminal accountability: domestic vs international mechanisms

Generally, it seems there are two main desires in criminal accountability mechanisms, (1) a new, impartial, and independent body to be established domestically or (2) an international mechanism–with states often preferring the national option.

Expanding the transitional justice mechanism to the entire country requires deep nuance; a blanket approach is not going to work with respect to the multitude of ethnic groups and atrocities committed against the countless peoples, nations, and nationalities of Ethiopia. In Tigray’s case, the consultations show that the population overwhelmingly still prefers an internationally-led mechanism, but I fear that justice will be denied in pursuit of what the majority of Ethiopians want. The Ethiopian government is also very much against an international option, mainly because it wants to control the narrative, cover up its crimes, and lessen the gravity of them. Tigray requires an international criminal justice mechanism for reasons that significantly differ from other regions, particularly in:

  1. Eritrea’s role as one of the main perpetrators in the genocide against Tigray and domestic Ethiopian institutions not having the ability to meaningfully hold them accountable; and
  2. Tigrayans’ deep mistrust of the wider Ethiopian population, considering many civil society organizations, religious leaders, and national institutions supported, or at the very least were complicit in, the war effort. The other option of establishing a newly independent, domestic body with members from across society is not going to be as independent in this instance.

With this considered, the question becomes: how will Tigray’s needs be met, or are we sweeping these needs under the rug in support of the needs of the wider Ethiopian society? We cannot simply forget that at least 800,000 people died in Tigray due to the war, nearly 14% of Tigray’s total population.

Domestic limitations in recognizing crimes against humanity and torture 

A domestic mechanism will also lack in its ability to properly name and prosecute certain crimes. As noted in the OHCHR-EHRC’s report regarding findings of community consultations on transitional justice report, “The Ethiopian legal framework including the Constitution and the 2004 Criminal Code proscribes international crimes. However, the domestic legal framework presents limitations when it comes to effectively addressing, for example, crimes against humanity and torture.”

The criminal code does include genocide but is not clear on whether it addresses crimes against humanity and torture–something debated amongst Ethiopian legal scholars and in the courts for decades. A clear example of this limitation, and likely the pain it caused victims, is during Abiy Ahmed’s 2018-2019 justice efforts, where the report mentions “it was reported that most of the violations the suspects were charged with met the elements of crimes against humanity and torture, but were charged for less serious crimes such as abuse of power.”

If in fact crimes against humanity and torture cannot be prosecuted, there is an immense gap not only for Tigray but for other regions where victims faced one or both of these crimes. How will this be remedied, if not through an international mechanism?

A need for significant reform in the Ethiopian criminal justice system

Now, it is also important to note that, across all regions consulted, most victims were against utilizing the current Ethiopian criminal justice system, as there is an overwhelming mistrust and grievances that are deeply rooted and systemic. However, it is likely that a newly established independent body will intersect with at least some parts of the current justice system. In the past, we have seen incremental legal and justice-related changes, but systemic changes require political will, which we have yet to see in Ethiopia. Two critical questions come to mind:

  • Does the Ethiopian government have the political will to drive these changes? Does the international community have the political will to hold them accountable?
  • Operationally, how are we to ensure these systems will be meaningfully reformed, and how long will this process take? 

The reform required to meet victims’ needs is significant, and we have not yet seen the Ethiopian government make sweeping changes in this way. Over the past five years alone, many mechanisms and working groups created to implement reform measures have been closed down as they did not have a clear mandate nor was the political will there. As mentioned in the report, the Ethiopian Reconciliation Commission is a great example of an institution created only to be closed nearly a year and a half later before starting the implementation of its main responsibilities. I would certainly applaud a meaningful start to significant reform, but it is likely this process will take time, and as the saying goes, justice delayed is justice denied. A better process might be to have, in parallel, a path to justice and accountability through international mechanisms, pursuing relatively shorter-term legal actions such as universal jurisdiction cases or holding corporations involved in the war accountable to international standards, while the country reforms its justice system to take on lesser crimes.

Truth-seeking, reparations, and traditional mechanisms of conflict resolution

In terms of truth-seeking, most other regions in Ethiopia preferred involving the society at large to help establish the facts, but in the case of Tigray, again, most prefer an international or United Nations-led process due to the lack of trust in and credibility of the wider Ethiopian community. Tigrayans’ willingness to share and participate in these forums is also tied to the need to have an institution established at the international level. So if international options are not proposed, what does that mean for justice and accountability for Tigrayans? 

On reparations, essentially all groups want a sincere apology and recognition of crimes, in addition to humanitarian assistance to meet their aid needs and for internally displaced peoples (IDPs) to return home. This generally speaks to how basic human rights are foundational to any talks of peace and justice and how these rights have yet to be met. With great humanitarian needs across the country, it is important that the international community support and strengthen the work of aid organizations like the World Food Programme and USAID through additional disbursement of funds while also financially and operationally supporting local organizations driving meaningful aid relief on the ground.

Lastly, on Traditional Mechanisms of Conflict Resolution (TMCR), many regions supported this option, and while it largely can support lesser crimes (such as property/land disputes or lighter interpersonal conflicts, not complex political disputes), in the case of Tigray, it needs to be complemented with international justice and accountability mechanisms considering the scale of the war (e.g. the atrocities, all of the domestic and international players involved) and the size of its impact (~6M+ people in Tigray, 800K+ killed). This need for international justice mechanisms is further strengthened in the example provided in the report, which mentions, “Regarding experiences in the use of TMCR, a participant explained that elders from the Tigray region travelled to the Sudan border to stop the displacement from Western Tigray during the conflict but that they were not successful.” Western Tigray continues to be occupied by Amhara forces, and considering the complex inter-ethnic conflict at play here and the involvement of external actors, despite historical context, TMCR is not a valid option for Tigray.

A question of timeline

Additionally, one significant gap in the report is that we do not have a clear understanding of victims’ preferences in terms of a starting time point for atrocities to be covered in this accountability process. How far back are we going? The timeframe itself can cause significant grievances–if too narrow, it may exclude important atrocities to victims; if too far back, it may be beyond the capacity of any domestic institution.

All in all, the OHCHR-EHRC report on victim consultations sheds light on the need for a nuanced approach when it comes to justice and accountability–one that respects diverse perspectives while remaining committed to the principles of fairness, transparency, and genuine accountability. Simply ignoring calls for international involvement, dismissing Tigrayan concerns, or reforming processes only at the surface will only fuel the fires of injustice and may trigger more conflict. As we all await for the final transitional justice plan to be shared, given the signs displayed so far by the Ethiopian government, I deeply fear that Tigrayans will be given the short end of the stick despite the massive scale of atrocities.

Bserat – Omna Tigray Contributor, March 2024