Prosecuting Atrocity Crimes Committed in Northern Ethiopia: The Need for Special National Prosecution Mechanism

Over the last four years, serious human rights violations and abuses, have been committed in Ethiopia in and outside of the context of an armed conflict. These violations may constitute international crimes, such as crimes against humanity, war crimes and torture. The situation particularly worsened and garnered international attention after an armed conflict broke out in Tigray on November 3rd, 2020, and later expanded to Afar and Amhara regions of Ethiopia.

On December 17, 2021, in a special session convened at the request of the EU, the UN Human Rights Council decided to establish an international commission of human rights experts on Ethiopia, with a mandate, inter alia, to investigate alleged violations and abuses committed in Ethiopia since November 3, 2020 and provide guidance on transitional justice, including accountability. On March 2, 2022, the President of the Human Rights Council appointed three experts, including Fatou Bensouda, the former chief prosecutor of the ICC, as members of the Commission.

Alongside the efforts at the international level, the Ethiopian government has established an Inter-Ministerial Taskforce to oversee redress and accountability measures in response to human rights violations committed in northern Ethiopia. The National Dialogue Commission was also established with a view to facilitate consultations among various political actors and solve the root causes of conflicts in Ethiopia. The government has also recently constituted high-level investigation teams and deployed them in different parts of the country.

While the government is indeed taking commendable steps, which Michelle Bachelet commended in her report during the 49^th session of the UN Human Rights Council as ‘three welcome steps forward’, there are many reasons that put in doubt the ability of the regular prosecution mechanism to bring perpetrators to justice. This post seeks to highlight the normative and institutional limitations of the regular prosecution mechanism and calls for the consideration of a special national prosecution mechanism exclusively intended to prosecute serious crimes.

Investigations and Reports of Atrocity Crimes

Various organizations have conducted investigations into allegations of serious human rights violations in Ethiopia and published their findings and recommendations. The Joint Investigation Team (JIT), composed of members from UN OHCHR and Ethiopia Human Rights Commission (EHRC), carried out an investigation into crimes alleged to have been committed from November 3rd 2020 up until June 28, 2021 – from the time the armed conflict broke out in northern Ethiopia to when the government declared a unilateral cease fire and withdrew its forces from Tigra – and published its findings in November 2021. The JIT concluded that many of the violations committed by both parties to the conflict may amount to crimes against humanity and war crimes.

The EHRC has also independently investigated and recently published its findings and recommendations concerning crimes alleged to have been committed in Afar and Amhara regions since July 2021, after the conflict expanded to these regions of Ethiopia. The investigation of the EHRC also concluded that both parties to the conflict committed acts that may constitute war crimes and crimes against humanity and called for a credible criminal investigation to hold perpetrators accountable and provide a remedy for victims.

Various other investigations have also invariably reached a similar conclusion. Human Rights Watch, for instance, in its report published on December 9, 2021, December 16, 2021 and March 5, 2021 documented various violations of international humanitarian law, international human rights law and international refugee law, which may amount to war crimes and crimes against humanity.

Ethiopia’s Obligation to Investigate and Prosecute Serious violations

Ethiopia has an obligation to investigate and prosecute serious crimes both under treaty and customary international law. Concerning the ongoing non-international armed conflict, customary international law requires Ethiopia to ‘investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects’ (CIHL Rule 158). Ethiopia is also a party to different international instruments that explicitly impose an obligation to investigate and prosecute serious crimes, such as the Convention against Torture (article 7) and the Genocide Convention (article 1).

The right to remedy is recognized in different regional and universal human rights instruments, which Ethiopia is a party to. For example, the ICCPR, imposes a corollary state obligation to provide a remedy, including investigating and prosecuting serious violations. These instruments also recognize the state’s obligation to investigate and prosecute serious violations of human rights as part of different substantive rights. For example, failure to investigate and prosecute alleged deprivation of life in and of itself constitutes a separate breach of the right to life (See GC 36 of HRC and GC 3 of ACHPR).

Article 13 of the Ethiopian Constitution also imposes a duty on all Federal and State legislative, executive and judicial organs to respect and enforce human rights recognized in the constitution. Under article 28, the constitution proclaims that amnesty cannot be offered to persons who are alleged to have committed serious international crimes, such as genocide, summary executions, forcible disappearances or torture. This implies that state organs entrusted with investigation and prosecutorial powers have a constitutional duty to investigate and prosecute these serious crimes.

Prosecutorial Power, Discretion and Selectivity

Initiating investigation and instituting charges concerning international crimes falls within the power of the Federal Ministry of Justice of Ethiopia. Further, the Ministry has the discretion to withdraw charges when found necessary in the public interest. Serious doubts, however, lay as to whether the Ministry of Justice, which is part of the executive arm of the government and headed by a member of the Central Committee of the ruling party, exercises its power and discretion without any political considerations and selectivity.

The Ministry has initiated investigations into various allegations of serious human rights violations and abuses since the conflict broke out in November 2020. However, not only these investigations do not match the breadth and the scope of the allegations, but they are also selective in nature. While the investigations focused on the abuses alleged to have been committed by the TPLF, the Ministry, as a state authority, is often reluctant to put the limelight on violations alleged to have been committed by the state forces and reveal state criminality.

However, this doesn’t mean that no investigation has been opened regarding state violations. For example, an investigation was conducted on the killing of civilians alleged to have been committed by the government forces in the historic town of Axum, Tigray, Ethiopia. The investigations finding were published on May 10th, 2021. Nevertheless, investigations into alleged violations by government forces, unlike the ones conducted against the non-state armed groups, often targeted direct perpetrators, and often sidestep the role of persons exercising command or superior responsibility.

Another roadblock is the Ministry’s absolute discretion, which is not subjected to external review, is to withdraw or terminate criminal charges in the public interest, regardless of the nature of the crime and the weight of evidence presented against the accused. Although nothing outweighs the repression of serious crimes, there is a concern that the prosecution authority, using its prosecutorial decision, will trade off the prosecution of serious crimes for certain political considerations. This is perhaps what happened when the Ministry terminated criminal charges brought against some of the leaders of the TPLF on January 7th, 2022.

Normative Gaps in Ethiopian Criminal Law

Under the title ‘crimes in violation of international law’, the Ethiopia Criminal Code criminalizes Genocide and war crimes, while crime against humanity is conspicuously absent. The criminal code from articles 270- 280 criminalizes many of the acts alleged to have been committed in the northern Ethiopia, such as willful killings, torture, destruction of civilian property, compulsory movement of population and rape, as war crimes if they are committed in the context of the armed conflict.

The problem, however, is regarding those atrocity crimes committed in the northern Ethiopia which do not have nexus with the armed conflict. Many of the investigations concluded that some of the acts could amount to crimes against humanity. However, since the Ethiopian criminal code does not recognize or criminalize crimes against humanity, there is no possibility to prosecute these acts as crimes against humanity.

The other possibility is prosecuting these acts as an ordinary standalone crime, although they don’t reflect the same values and send the same deterrent message as crimes against humanity. However, some of the acts which are believed to be widely committed in the northern Ethiopia, particularly forced displacement of population, are not recognized even as standalone crimes under Ethiopian criminal law. Accordingly, under the current Ethiopian criminal law, there is no possibility to prosecute such crimes both as elements of crime against humanity and as a standalone crime.

Special Prosecution and Previous Experiences in Ethiopia

The ongoing national efforts to ensure accountability and remedy will bear no fruit unless the above stated institutional and normative limitations are adequately addressed. One way of achieving this is by establishing a special prosecution mechanism within the Ethiopian legal system with adequate safeguards of independence and with a power to exclusively prosecute serious international crimes committed in Ethiopia based on international law and standards. This is even one of the recommendations of the Joint Investigation team of the EHRC and UN OHCR.

Special prosecution mechanism is not unfamiliar in the Ethiopian legal system. In 1992, for instance, following the downfall of the Dergue regime, the Special Prosecutor Office was established to conduct investigations and institute proceedings relating serious crimes committed during the Dergue regime. Although the Special Prosecutor Office was mandated to apply only domestic laws, it represents Ethiopia’s previous experience to confront serious crimes though a special mechanism.

The establishment of special national mechanisms, on the one hand, addresses the prevailing selectivity and reluctance to prosecute state agents, by ensuring independent prosecution. One the other hand, as far as it is empowered to prosecute according to international law and standards, it will ensure that no crime will be left unprosecuted due to national normative gaps and help Ethiopia fulfil its obligation under international law.

In this regard, one may ask whether and how the Ethiopian constitutional framework allows the application of international rules in the domestic legal order. This is particularly important since the constitution is silent regarding the status of customary international law, which is an important source concerning individual criminal responsibility, while declaring, under article 9(4), that ‘all international agreements ratified by Ethiopia are an integral part of the law of the land.’ Similarly, the constitution makes no reference to crimes recognized under customary international law while prohibiting amnesty concerning crimes ‘defined by international agreements ratified by Ethiopia’ under article 28.

The fact that the constitution is silent does not affect the normative force of customary international law since it binds all states regardless of formal consent. It could, however, determine the manner of its reception into the Ethiopian legal order. First, treaties ratified by Ethiopia, which are declared to be ‘integral part of the law of the land’ under article 9(4) of the constitution, automatically obtain domestic effect, without any requirement of transformation. This explains why Ethiopian Federal courts, whose criminal jurisdiction includes crimes in violation of international laws, are empowered to apply ‘International Treaties to which Ethiopia is a party’.

However, customary international law, unlike treaties, is not treated as integral part of the law of the land under the constitution means that it should be transformed into domestic law to be applied by domestic courts. To that effect, Ethiopia’s criminal law, unlike the constitution, does make reference to ‘international law’, including both treaty and customary international law, in various provisions. Relating war crimes, for example, the criminal code criminalizes acts, such as, torture, killing, willful reduction to starvation, compulsory movement in the context of armed conflict ‘against the civilian population and in violation of the rules of public international law’. This provision can be considered to be a domestic transformation of war crime under customary international law.

In the same vein, the domestic law establishing the Special Prosecution Mechanism can transform crimes under customary international law into domestic law and apply them to prosecute crimes committed in the northern Ethiopia and fill the prevailing normative gap.

Conclusion

The normative recognition of a long list of human rights under chapter three of the Ethiopian constitution remains an empty promises unless victims can obtain remedies, and those responsible for abuses face justice. Indeed, Ethiopia is taking steps with a view to investigate and bring perpetrators of serious human rights violations to justice. However, due to various institutional and normative limitations, the regular mechanism is not best suited to effectively investigate and prosecute serious human rights violations. Accordingly, Ethiopia should consider establishing a special prosecution mechanism to better fulfill its obligation under international law.