Reimagining Sustainable Peace in Tigray: A Transitional Justice Perspective
Author: Markus Penda Mulandula Angula
Published on 5 June 2023
According to Andrews, P. (2015), ‘transitional justice mechanisms are non-judicial bodies set up by governments after armed conflict or internal political violence. These mechanisms usually reflect the compromise reached between warring parties during negotiations to end the conflict or violence, seek justice for the victims, and establish peace in the affected communities.’
The United Nations Secretary General report on rule of law and transitional justice in conflict and post-conflict societies (2004) on the other hand defines transitional justice to include a ‘‘…full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.” According the UNSG Report (2004) these may include ‘both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof.’
It’s important to note that justice in the context of transitional means relying on restorative justice to restore a broken social relationship rather than simply punishing the perpetrators. This means that transitional justice serves two purposes, to ensure accountability whilst achieving societal reconciliation.
Transitional justice can only be achieved through a genuinely participatory process and dialogue, to ensure accountability and prevent the reoccurrence of human rights violations. Andrews, P. (2015), argues that transitional justice mechanisms are widely believed to reinforce accountability and promote democracy in post-conflict societies. As recommended by the UN Secretary General, UNSG Guidance Note (2010), national stakeholders should be involved in efforts to build rule of law, in order to ensure the authority and legitimacy required for rule of law initiatives achieves the desired results.
Conflict in Tigray: History and Background
Tigray is a region located in the northern part of Ethiopia and has been in conflict with the new government of Ethiopia since 1975, following the establishment of the Tigray People’s Liberation Front (TPLF) which fought a war to seize control of the government from a military junta.
TPLF became the leading member of the coalition government that took power in 1991. The party has been in power for almost three decades, before Mr. Abiy Ahmed, the Prime Minister of Ethiopia dissolved the coalition in 2019 but the TPLF refused to join the new Prosperity Party, leading to Tigray’s holding their own elections on 09 September 2020 which was considered defiance against the central government. This escalated when the central government suspended funding for Tigray and cut ties with it in October 2020, an act which was interpreted as a ‘declaration of war’ by Tigray’s administration.
Tensions grew, and the eventual catalyst came when Tigrayan forces were accused of attacking army bases to steal weapons. The political crisis erupted into war after reform was pursued by Mr. Abiy and resisted by Tigray. The conflict has left thousands of people dead with over 350,000 others living in famine conditions.
The media reports indicates that civilian structures in towns in Tigray, including hospitals, schools, factories, and businesses, were shelled, looted, and destroyed by Ethiopian Federal Forces and regional militias, and by Eritrean armed forces. The fighting and continued restrictions on humanitarian access forced more than two million people to flee their homes, with thousands fleeing into Sudan, and left at least 2.3 million in need of assistance. November 2020, saw the central government of Ethiopia campaigning against TPLF, under the leadership of Prime Minister Abiy Ahmed. Soldiers from Eritrea are also fighting the Tigray war for the Ethiopian government, and all parties have been accused of committing atrocities and grave human rights violations.
The United Nations drafted a resolution on the conflict in Tigray and set up an international human rights inquiry into the conflict. Key aspects of the resolution include ending the conflict within the region and providing transitional justice mechanisms, specifically for ‘accountability, reconciliation and healing’. In an oral update of the International Commission of Human Rights Experts on Ethiopia to the UN Human Rights Council, in June 2022 in Geneva, the Commission reported that they began their work, highlighting key achievements and challenges.
Is the establishment of the Truth, Reconciliation and Reparation Commission an answer?
Among the transitional justice mechanisms devised to confront past atrocities, the establishment of a Truth and Reconciliation Commission is by far the most popular. According to the UNSG Report (2011), transitional justice initiatives should aim to promote accountability, reinforce respect for human rights and foster the strong levels of civic trust required to bolster rule of law reform, economic development and democratic governance. The Resolution further states that transitional justice initiatives may encompass both judicial and non-judicial mechanisms, including individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals.
An establishment of a Truth, Reconciliation and Reparation Commission for Ethiopia is recommended. It’s undeniable that non-judicial mechanisms such as truth commissions can play a significant role in enhancing accountability for human rights abuses. They can serve as a mechanism to detach from the past and facilitate trust and confidence in newly reconstituted justice and security institutions.
Truth Commissions have been established and implemented in many countries across the globe including Nepal, Timor-Liste, Liberia, Kenya, South Africa, Solomon Island, Uganda, Burundi, Cote d’Ivoire, Sierra Leone, etc. and recently in The Gambia.
Andrews, P. (2015) argued that truth and reconciliation commissions provides more effective ways for victims to feel invested in the process and may lead to a longer-lasting peace in society. She further argued that
it provides avenues for victims to confront perpetrators; to explain and name the harms to which they were subjected to; to create a permanent record to prevent denial in the future; and to highlight the responsibility of all members of society, including the bystander beneficiaries, which cannot be accomplished in international criminal tribunals. (pp. 203)
Of great importance to this topic is reparations programmes which can be very effective and expeditious complements to truth-seeking processes and prosecution initiatives, by providing concrete remedies to victims, promoting reconciliation, and restoring public trust in the State. According to the UNSG Guidance Note on the United Nations Approach to Transitional Justice (2010),
Reparations programmes seek to redress systemic violations of human rights by providing a range of material and symbolic benefits to victims. Reparations can include monetary compensation, medical and psychological services, health care, educational support, return of property or compensation for loss thereof, but also official public apologies, building museums and memorials and establishing days of commemoration. (pp.8)
Redress may take a variety of forms, including restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.
It’s thus recommended that affected communities and groups are consulted in this process. Lessons learnt from other countries that have successfully implemented reparation shows that affected communities, particularly child victims and women groups should be consulted.
Establishment of an ad-hoc hybrid tribunal to end impunity
The past decade saw the United Nations taking a proactive role in the establishment or contribution to special courts and criminal tribunals, in an attempt to bring justice to those responsible for serious violations of human rights and humanitarian law, ending such violations and preventing their recurrence. The tribunals were also established to secure justice and dignity for victims, establishing a record of past events, promote national reconciliation, re-establishing the rule of law and contribute to the restoration of peace.
It’s important to note the establishment of ad hoc international criminal tribunals (International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda) which were established by the United Nations Security Council; a mixed tribunal for Sierra Leone, which was established as a treaty-based court, as well as mixed tribunal for Cambodia, proposed under a national law specially promulgated in accordance with a treaty amongst many other tribunals.
According to the UNSG Report (2004),
Criminal trials can play an important role in transitional contexts. They express public denunciation of criminal behaviour. They can provide a direct form of accountability for perpetrators and ensure a measure of justice for victims by giving them the chance to see their former tormentors made to answer for their crimes. Insofar as relevant procedural rules enable them to present their views and concerns at trial, they can also help victims to reclaim their dignity. Criminal trials can also contribute to greater public confidence in the State ability and willingness to enforce the law. They can also help societies to emerge from periods of conflict by establishing detailed and well-substantiated records of particular incidents and events. They can help to de-legitimize extremist elements, ensure their removal from the national political process and contribute to the restoration of civility and peace and to deterrence. Yet achieving and balancing the various objectives of criminal justice is less straightforward and there are a host of constraints in transitional contexts that limit the reach of criminal justice, whether related to resources, caseload or the balance of political power. (United Nations Secretary General Report on the rule of law and transitional justice in conflict and post-conflict societies (2004) pp.13)
Against this backdrop, it’s the author’s recommendation that an ad hoc hybrid tribunal is established in Ethiopia to overcome the inherent limitations of criminal justice processes. Like in the case of Sierra Leone, it will ensure that victims and their relatives are able to obtain redress for the harm they have suffered and also ensure the removal from the justice and security sectors of those who may have connived in the violation of human rights or aided and abetted repression.
A hybrid tribunal will allow for accessibility of victims and communities to the court, ensuring that they have full access to the proceedings, which will ensure their meaningful participation in the process. Moreover, the incorporation of national laws and adoption of the national legal system will ensure local ownership of the process which is key in achieving justice for both perpetrators and victims.
Challenges and opportunities
In terms of opportunities, it’s encouraging to note that from 2018, the political arena in Ethiopia changed and a Reconciliation Commission was established through A Proclamation to Establish Reconcilation Commission Proclamation No.1102 /2018 in order to achieve sustainable peace and transitional justice for previous gross violations of human rights which were not addressed.
The Commission was tasked by law, to bring about a peaceful nation by identifying the root causes of conflicts in the past, whilst also identifying victims and wrongdoers. It was expected that the commission would empower the victims by helping hold perpetrators of conflicts to account, and work with the victims in pardoning the culprits once their wrongdoing got exposed and reconciliations mechanisms were endured.
The commission was however dissolved in 2021 without any concrete achievements. This experience has exposed the weakness of the implementation of Truth Commissions in general (in the context of Ethiopia) and since its regarded as a failure, victims and stakeholders might be reluctant to participate in future truth-seeking commissions.
The author however holds that this could be a learning curve for Ethiopia, and an opportunity to document the successes, failures, lessons learnt and promising practices from the past commission to inform future truth commissions and ensure that these lessons are engraved in the planning and implementation of the new commission.
Although domestic justice systems should be the first resort in pursuit of accountability, a potential challenge could be unwillingness of the domestic authorities in Ethiopia or their inability to prosecute perpetrators at national level, in which case the remedy will lie in referring prosecution to the International Criminal Court for Prosecution in line with the Rome Statute
Conclusion and Recommendations
Having analyzed the conflict in Tigray and having extensively discussed the two preferred transitional justice mechanisms to reimagine sustainable peace in Tigray, it’s the authors’ recommendations that the government of Ethiopia should first and foremost prioritize the rights of all victims, in particular women and children and ensure that there is accountability for all human rights violations.
Concrete efforts to guarantee the rights of victims to the truth, justice and reparation should be central to transitional justice in Ethiopia and should be achieved through direct and meaningful participation of victims, to ensure sustainable peace. As discussed above, author recommends that a Truth, Reconciliation and Reparations Commission is established to undertake a truth-seeking mission, facilitate dialogue, ensure healing, reconciliation, and award remedies for human rights violations.
Recognizing the urgency to end impunity and hold perpetrators accountable for their crimes, the author recommends that an ad hoc hybrid tribunal, like in the case of Sierra Leonne be established to prosecute human rights violations. In the unfortunate case that the government is unwilling or unable to prosecute perpetrators, the author submits that such cases be referred to the International Criminal Court, in line with the provisions of the Rome statute.
It is imperative that both the demands of justice and the dictates of peace require that something be done to compensate victims. As noted by the UNSG Report (2004), ‘no single form of reparation is likely to be satisfactory to victims.’ The author would recommend that a combination of appropriate reparation measures be implored to complement the work of the ad hoc hybrid tribunal and the Truth, Reconciliation and Reparation Commission.
List of References
A/HRC/18/23, Report of the UN High Commissioner for Human Rights, Human rights and transitional justice (2011)(Disarmament, demobilization, and reintegration)
Andrews, P.(2015).Justice, reconciliation, and the masculinist way: What role for women in truth and reconciliation commissions. New York Law School Law Review 60(1),199-226.
Bibas, S., Burke-White, W. (2010).International Idealism Meets Domestic-Criminal-Procedure Realism.Duke Law Journal, Vol. 59, No. 4 (January 2010), pp. 637-704. Introduction and Part I Comparing Domestic and International Criminal Procedure.639-660.
Cryer, R.; Friman, H.; Robinson, D; Willmshurst, E. (2010). An Introduction to International Criminal Law and Procedure.Cambridge University Press. Chapter 3 Jurisdiction, pp. 43-63.
The Rome Statute of the International Criminal Court
UNSG Report (2004).The rule of law and transitional justice in conflict and post-conflict societies.S/2004/616 23 August 2004. Section VI – XI (para. 14- 37)
UNSG Report (2011).The rule of law and transitional justice in conflict and post-conflict societies. S/2011/634 12 October 2011
Zgonec-Rožej et al.,Manual of International Criminal Law. (2010)
Zgonec-Rožej et al., Manual of International Criminal Law. (2010) International Bar Association Human Rights Institute (IBAHRI). Chapter 5 Prosecution Before National Courts, pp. 333-378
Author’s Short Bio
Markus is a lawyer and researcher from Namibia, currently pursuing a master’s degree in international law and diplomacy. His area of expertise includes children’s rights, peace building, rule of law and access to justice, child online protection and disability inclusion.