G.Amare
Introduction
In the wake of the genocidal war against the people of Tigray, the talk about transitional justice (TJ) has grown louder posing ambivalent questions. This article challenges the viability of TJ mechanism where the warring parties and actors of the genocidal war continue to hold power. It simultaneously describes the theoretical principles and essential preconditions for successful implementation of TJ.
TJ normally refers to the mechanisms and processes a society uses to respond to the legacies of past massive and serious human rights violations and in times of transition from conflict or authoritarian rule to peace or democracy.[1],[2] The process incorporates full range of judicial and non-judicial measures (such as institutional reform, truth seeking, vetting of public officials, reparations) in order to, inter alia, ensure accountability, serve justice, provide remedies to victims, promote healing and reconciliation, establish independent oversight of the security system and restore confidence in the State’s institutions, and promote the rule of law in accordance with international human rights law.[3] So, the TJ process is immensely complex and exceedingly sensitive undertaking. Practically speaking, its implementation, in the aftermath of a genocide, is particularly characterized by an uphill battle that requires great deal of efforts and determination.[4]Visualizing truth, justice, reparation, guaranteeing of nonrecurrence, and memorialization processes which are the fundamental pillars of the TJ for any society seeking to heal from dictators brutal mass atrocities, is a daunting endeavor.[5],[6] The process of TJ is subject to perpetrators’ obstruction or manipulation in an effort to evade accountability, exploiting their power of influence. Such a power of influence will be more prominent and impactful in situations where perpetrators are in control of the security and judiciary systems. They can easily intimidate and undermine potential witnesses’ participation and security protection to thwart investigation or impede evidence collection. That is one of the reasons why a full and vigilant engagement and monitoring of an independent body becomes crucial. Though the role they plaid varies from one place to the other, the international community (IC) were seen taking part, in most cases of the TJ that occurred around the world.
TJ process is often seen focusing on reconciliation and healing. However, in cases where the perpetrators remain in power, like the case in Tigray Regional State vs. Ethiopia, genuine reconciliation might be elusive, as the victims may not perceive the TJ process to be fair and impartial, particularly, if the responsibility is fully left to domestic actors. The TJ process is also subjected to the ethical dilemma of balancing justice with the potential destabilization of a country: the fear of further violence and conflict may deter the international actors from making active engagements or taking decisive actions.
TJ is often associated with post-conflict settlements where one wins power and the other loses. However, this scenario is not always the case. TJ may be applicable even when both warring parties remain in power. There are a few success stories where reconciliation and justice pursued through the process of TJ when the parties involved continue to wield power. For example:
South Africa – Post-Apartheid Era[7]: After decades of racial segregation and violence under apartheid, South Africa underwent a peaceful transition in the early 1990s. The African National Congress (ANC), which had been the primary anti-apartheid movement, took power in a coalition government with the National Party, which had enforced apartheid policies. The Truth and Reconciliation Commission (TRC) was established to address human rights violations committed by all sides during apartheid. The TRC provided a platform for victims and perpetrators to come forward, share their experiences, and present their cases. Perpetrators who confessed their crimes and demonstrated genuine remorse were eligible for amnesty. While the process was not without criticism, the TRC played a significant role in promoting reconciliation and avoiding widespread retributive justice, allowing a peaceful transition despite the ANC and National Party remaining in power. The international community (IC) were also involved but their role was more that of observers and sometimes advocating for the TRC’s effectiveness and transparency. The IC did also take an interest in the proceedings and attended hearings, but they were not formal participants.
Mozambique – Civil War Reconciliation[8]: Mozambique experienced a brutal civil war that lasted from 1976 to 1992. After a peace agreement was reached between the ruling FRELIMO party and the rebel group RENAMO, a truth commission was established to investigate human rights abuses committed by both sides during the conflict. The Commission for the Reception, Truth, and Reconciliation (CRVR) allowed for the examination of past atrocities and the granting of amnesty to some perpetrators. The process contributed to reconciliation efforts and played a role in the continuation of FRELIMO’s governance in post-war Mozambique. The role of the IC mainly involved diplomatic engagements to support peace negotiations and facilitate dialogue and mediation efforts; humanitarian aid to assist those affected by the violence; capacity building; supporting local truth and reconciliation processes that aim to address past grievances; and peacekeeping and security efforts.
Timor-Leste-Established TJ after Independence[9],[10]: Timor-Leste gained independence from Indonesia in 2002 after a long struggle and a referendum for self-determination. Commission for Reception, Truth, and Reconciliation (Comissão de Acolhimento, Verdade e Reconciliação de Timor-Leste=CAVR) was established which operated from 2002 to 2005. The commission aimed to uncover the truth about past atrocities and human rights abuses, allowing for the reconciliation of Timorese society while maintaining diplomatic relations with Indonesia. However, CAVR wasn’t the only one in the play. The involvement and support of IC were crucial. The IC, led by the United Nations Mission of Support in East Timor (UNMISET), aided in establishing a judicial system and building governmental institutions and law enforcement agencies. In addition, Serious Crimes Unit (SCU) was established to investigate and prosecute the most serious crime and a special tribunal (known as the Special Panels for Serious Crimes), composed of both Timorese and international judges, was formed to prosecute individuals responsible for crimes against humanity, war crimes, and other grave human rights violations.
While these examples demonstrate a kind of successful TJ efforts when warring parties remained in power, it is essential to recognize that each context is unique, and the challenges in the process vary showing the fact that TJ is a complex process that requires careful consideration of the specific historical, political, and social factors.[11] TJ also demands genuine commitment and unpretentious engagement from all parties in the process.
Unfortunately, there is no universally applicable blanket TJ rule, without considering individual circumstances or nuances. TJ should not be taken as a one-size-fits-all solution. Applying a universal rule can simplify the process but it is doomed to fail if it doesn’t address unique circumstances or cases that require individualized attention. It may lead to unfair outcomes in cases where exceptions are necessary to achieve justice and fairness as it may overlook important differences among cases, leading to inappropriate or ineffective use of resources and or result in unnecessary consequences. Thus, context is crucial when considering the application of TJ mechanisms where instances of flexibility and discretion are essential to ensure fairness and achieve optimal outcomes. Striking the right balance between consistency and flexibility is important in designing effective TJ processes.
The Application of Domestic TJ in Tigray Regional State vs. Ethiopia Situation
The domestic transitional justice (TJ), in the Tigray vs. Ethiopia situation, is highly anticipated to face fierce and numerous challenges due to the complexity of the war: multiple actors involved, antagonistic geopolitical interests striving, and entrenched power dynamics is in collusion. The situation requires deep analysis and critical thinking to bring fundamental shifts in attitudes and actions, galvanize international support, and promote diplomatic relations.
The war in Tigray has been wild, bloody and of unlimited scope and barbaric in nature resulting in hard to reconcile animosity and catastrophic consequences. The war has broken the social fabric of the people by an organized, systematic, and premeditated mass atrocities and a genocidal war that was declared to wipe out the entire people of Tigray in Ethiopia which poses an arduous task for the TJ process. The highly lauded TJ mechanism that is sought to resolve the Tigray Regional State vs. Ethiopia conflict, unless serious corrective measures are taken or alternate arrangements to involve the IC are made, seems doomed to fail because there exist several factors that presentchallenges to the practical implementation of the JT.
Seven Obvious Challenges
- The war Has International Dimensions
When it started, the war was claimed to be a “law and order operation,” “targeting a few TPLF members” and “it is solely a domestic matter.” However, from what has been observed, reported, and documented, the claim was far from the truth and utterly different from its original assertions. Rather, the war was well orchestrated and premeditated one with the intention to wipe out an entire Tigrayan ethnic group. It involved the deployment of multiple domestic and foreign allied forces-the Ethiopian National Defense Forces (ENDF), the Amhara regional forces, the Eritrean Troops, and some forces from the Federal Republic of Somalia. Bizarrely, it was planned and operationalized with a military assistance-high-tech weapons, expertise, drones, and finance-from many other countries including but not limited to the UAE, Turkey, Saudi Arabia, China, Russia, Iran etc.
Moreover, the war violated international laws. The denial of access to humanitarian aid, during conflict, is a condemned act by the UNSC. Blocking the free passage or timely delivery of humanitarian assistance to persons in need as well as the deliberate attacks against humanitarian workers are violations of UN conventions. However, such conventions were found to be meaningless and without practical application in Tigray Regional State vs. Ethiopia war. The UN miserably failed to implement its own rules and regulations and remained apathetic while the entire people of Tigray haven been suffering under complete siege and in darkness, deliberately and cruelly starved to death. Several reports indicate the death of hundreds of thousands of people due to lack of food and essential medicines and medical supplies. The death of some aid workers has also been reported while on their duty. So, the genocidal war in Tigray vs. Ethiopia has international dimensions. The crimes committed, unquestionably, reflect crime against humanity and war crimes that deserve attention and thorough investigations by an independent body established by UNSC, such as the International Commission of Human Rights Experts on Ethiopia (ICHREE), to hold criminals accountable, possibly at international criminal courts. This should not, at any cost, be left to only domestic TJ system.
- Resistance to Confront Past Wrongs
Theoretically speaking, for TJ to take root, the warring parties must demonstrate a genuine willingness to confront their past wrongdoings and human rights abuses. Acknowledging responsibility for atrocities committed and expressing remorse are essential steps in rebuilding trust. However, Ethiopia’s federal government has stubbornly and consistently opposed and rejected the call for an independent investigation. This inserts the suspicion that the government is trying to conceal its involvement and protect individuals implicated in human rights abuses. Such a refusal to conduct independent investigations has perpetuated a culture of impunity: perpetrators continue to act without fear of consequences; and there are ongoing and nonstop human rights violations that further erode trust. Evidently there is no willingness to confront past wrongs from the authorities and officials of the federal government of Ethiopia.
- Difficulty to Earn Public Support
The success of the TJ process hinges on garnering broad public backing. Reconciliation efforts, truth-telling, and victim-centered approaches are highly dependent on prioritizing victims’ needs and demonstrating legitimacy. However, in Ethiopia, with highly polarized ethnic groups and deep-rooted divergence between the warring parties, there exists an abundant deficit of public trust and support. Winning trust is no small feat and garnering public support is an uphill and a windward battle. Public support, a crucial element of TJ, is an unsettled debt in the Tigray vs. Ethiopia scenario.
- Partisan Judiciary System and Political Bias
The establishment of an impartial and effective judiciary system is a vexing and burdensome project to envisage in the current day Ethiopia. Evidently, one way or another, every high ranked official, many religious leaders, civic societies, teaching institutions, professional organizations and many more, have stood in support of the federal government’s genocidal propaganda campaigns against the people of Tigray. These groups valiantly got involved or facilitated the all-out war in Tigray without care, shame, or remorse for their actions. It is hardly possible to find individuals who would be impartial and without political bias. Indisputably, this hinders the process of TJ from ensuring fair trials and adjudication of cases in Tigray Regional State vs. Ethiopia’s post-war environment. And a justice system influenced by partiality would undermine the entire domestic TJ process.
- Victim and Witness Insecurity
Ideally, TJ advocates that the voices of victims must be heard and respected throughout the process and their needs, concerns, and rights must be prioritized to achieve meaningful and lasting reconciliation. The TJ process should also offer support and protection to witnesses who may have cooperated with independent investigations. Witness protection is crucial for ensuring their safety and encouraging their participation in subsequent justice measures. Nonetheless, it is plausible that the process in Tigray Regional State vs. Ethiopia would undermine the participation and protection of victims and witnesses. It is hardly possible to create a conducive environment that offers security protection in Ethiopia where peace and stability is highly volatile, there is ongoing active conflict everywhere in the country, and Ethiopia is suffering from lack of stable, dependable, and reliable government.
- Rejection for Independent investigation
Another very concerning aspect of the Tigray Regional State vs. Ethiopia’s situation is the rejection for independent investigation by the federal government of Ethiopia. This is a major roadblock to the TJ process and can have serious consequences. Impartial investigations are essential steps to establish the truth, hold perpetrators accountable, and pave the way for healing and lasting peace by playing vital roles in addressing human rights violations and facilitating a society’s transition from conflict to peace.
Independent investigations and TJ serve different purposes but can significantly impact each other in the pursuit of justice and reconciliation and in healing wounds, and rebuilding trust in societies recovering from the impact of a genocidal war. They are interconnected and complementary components of seeking justice and reconciliation. Having one without the other produces little results, if not none. Independent investigations, if conducted by impartial bodies or commissions, free from political influence or interference, ensure credibility and transparency and lay the groundwork by uncovering the truth and identifying responsible parties, while TJ helps translate these findings into concrete actions, such as prosecutions and reparations. Thus, independent investigations have direct impact on TJ process.
Independent investigation plays crucial roles in establishing accountability for human rights violations, war crimes, and atrocities committed if conducted free from political influence or interference. Its contribution to the process of TJ is immense: (i) serves as a source of truth and unbiased evidence to provide the foundation for truth-telling and acknowledgment of past wrongs; (ii) plays a role in holding perpetrators accountable and determining appropriate legal measures; (iii) increases public awareness and legitimacy by shedding light on the truth; (iv) increases public awareness of the magnitude of the crimes committed and this heightened awareness can generate support for TJ measures and build public confidence in the process; (v) provides basis for prosecution-the evidence collected during independent investigations serves as a foundation for legal proceedings and prosecutions to hold perpetrators accountable; (vi) offers witnesses and victims the assurance that their testimonies will be heard impartially and without fear of retaliation; and this encourages more people to come forward and share their experiences, contributing to a more comprehensive understanding of the crimes committed; (vii) serves as a deterrent against future human rights violations and atrocities. Knowing that their actions may be subject to scrutiny and prosecution can dissuade perpetrators from committing further abuses; and (viii) gives victims a platform to share their stories and have their suffering acknowledged. This acknowledgment is an essential aspect of restorative justice and healing for individuals and communities affected by the crimes.
- Asymmetric Power of Influence
Another critique of TJ revolves around its potential for selective justice caused by power imbalance. While the goal of TJ is to ensure that all perpetrators, irrespective of their strength or power, are held accountable, this may not be practically achievable particularly whenever there is asymmetric power dynamics-one has stronger and the other weaker power of influence. A stronger party typically holds more power and could shield its members to evade accountability. It is highly likely to have less willingness to cooperate, even if the responsibility of TJ is carried out by an international independent body. The stronger party often manipulates the system, exploiting its power to thwart investigation or impede evidence collection, hindering efforts to uncover the truth. It may have better access to resources, including legal representation, which can further tilt the scales of justice in their favor. The stronger party may have control over media outlets or the ability to shape the narrative surrounding the conflict.
So, in scenarios where both warring parties retain power, the anticipation is that TJ would be challenged with power imbalance. The Ethiopian government and its allied forces are architects and perpetrators of the premeditated genocidal war and thus, are showing extreme and inflexible determination to evade accountability. The TJ mechanisms require access to information and evidence gathered by independent investigations. Nevertheless, Ethiopia’s federal government has been and is staunchly opposed to an independent investigation and has been obstructing access to information and evidence. The fact is that there are abundant and incontestable evidence and undeniable truth documented and reported by sources including Amnesty international, Human Rights Watch, and many other credible media outlets and sources that crimes of human rights violations, war crimes, barbaric rapes, ethnic cleansing, and immense destruction and pillaging of infrastructures that took place in Tigray widely and indiscriminately. Ethiopia’s federal government albeit rather still holds the federal political power and has been seen using this leverage to shield from accountability by exerting influence over law enforcement agencies and the international community.
As mentioned above, Ethiopia’s federal government has been manipulating its power leverage to obstruct and or discredit the benefits of an independent investigation, preventing the truth from coming to light. The government is highly engaged in meandering the focus and scope of TJ measures as it did in the past to influence the Office of the United Nations High Commissioner for Human Rights (UN-OHCHR). The UN-OHCHR was arm-twisted to change its initial call for transparent and independent investigation and agreed to form a joint investigation plan in collaboration with the Ethiopian Human Rights Commission (EHRC). As expected by many, the outcome of the so-called UN-OHCHR-EHRC joint investigation was shocking and deliberately tilted. First, the joint investigation occurred in onlypurposely selected and targeted crime places or certain individuals. Second, the main crime scenes in Tigray have been purposely excluded, leading to a perception of selective justice. Third, the process was not transparent. Fourth, individuals who, directly or indirectly, had their hands in the genocidal war in Tigray were involved.
Not only these but Ethiopia’s federal government has also abused its power to conspire with foreign forces, betraying its people. It has formed military alliances with foreign forces of Eritrea and the Federal Republic of Somalia and sought military assistance-high-tech weapons, expertise, drones, and finance-from many other countries including but not limited to the UAE, Turkey, Saudi Arabia, China, Russia, Iran etc. to wipe out the entire people of Tigray.
The government allowed its local allies from the Amhara region to freely commit barbaric massacres and ethnic cleansing and in the end, abolish all possible crime evidence by relocating, exhumation and burning the remains of massacred Tigrayans, buried in group and the federal government remain muted and did nothing to oppose such inhumane acts. The government rather seems to have tacit agreement with these perpetrators.
Moreover, the government has used its power of influence to block media outlets, journalists, and international organizations from entering into Tigray’s crime scenes. It has been seen influencing how the IC responds to the genocidal war in Tigray. The government has exerted pressure against the IC to refrain from taking strong measures against perpetrators, including imposing sanctions. The government has been also impacting civil society’s ability to advocate for justice and if civil society organizations face restrictions or repression, their ability to push for accountability and justice becomes limited.
Under these circumstances, TJ might prioritize reconciliation over justice, leading to a compromised process by sidelining accountability measures, significantly impacting the efforts of TJ. It is highly likely that the TJ process would allow the stronger party to evade accountability by throwing crimes solely at the weaker party, inconsistent with the ideal principles of TJ.
Conclusion
Yes, TJ may help end immediate conflicts. However, the power imbalance that exists in Tigray vs. Ethiopia raises concerns. Obviously, the Ethiopian Federal government undoubtedly has a comparative advantage to sway the process to its favor. The people of Tigray are in a weak and disadvantageous position. The federal government considers itself as a supreme party that it cannot be prevented or annulled by any other power. So, it is highly anticipated that the proposed TJ will face unique challenges and complexities that deserve serious attention from the international community. The fact on the ground necessitates a vigilant and careful attention to uphold the principles of fairness, impartiality, and accountability.
The situation in Tigray Regional State vs. Ethiopia deserves international support and oversight if there is a genuine desire to bring long lasting peace. The establishment of independent investigation and TJ should be taken very seriously. It is essential for the IC and human rights organizations to advocate for transparent and credible investigations and a specific and an independent TJ mechanism be created to ensure that victims’ voices are heard, and justice is served. The use of international criminal accountability mechanisms, such as the International Criminal Court (ICC), should not be put aside. The matter cannot be simply resolved, and durable peace cannot be materialized by completely throwing the duty of the TJ mechanism into the hands of domestic investigators and legal system.
Ethiopia’s federal government assumes a strong power position and persistently rejects calls for independent investigations and seen sidelining accountability measures, thereby stalling the peace process. This behavior of the government was observed during the entire military war that started in 2020. It was seen manipulating its power of influence to disinform and create an asymmetry of information by narrating a one-sided story of the war that enhanced the already existing implicit and explicit biases of the IC. It is vital to counter the influence of political power and ensure that justice is pursued in a fair and equitable manner.
The bottom line is that the Tigray Regional State vs. Ethiopia situation presents unique features to the process of TJ. It is unlikely that the conflict will get resolved and durable peace be materialized by only domestic TJ mechanism.Despite the ethical dilemmas, the international community must directly be involved by standing together to support and protect the victims and ensure that perpetrators are held accountable for their heinous crimes. Only by doing so can there be hope for the TJ to bear fruit and a genuine reconciliation and lasting peace be achieved in the Tigray Regional State vs Ethiopia post-war situation.
[1] https://www.ohchr.org/en/transitional-justice#:~:text=Transitional%20justice%20covers%20the%20full,S%2F2004%2F616).
[2] https://www.ictj.org/what-transitional-justice
[3] United Nation Human Rights Special Procedures (January 2022). Special Rapporteur on the Promotion of Truth, Justice, Reparation, and Guarantees of Non-Recurrence. https://www.ohchr.org/sites/default/files/2023-01/Contemporary-perspectives-SR-Truth-01-2022-User-Friendly.pdf
[4] United States Holocaust Memorial Museum (2016): Fundamentals of Genocide and Mass Atrocities Prevention; a comprehensive overview of the history, policy, and critical debates in the field of genocide and mass atrocity prevention. https://www.ushmm.org/m/pdfs/Fundamentals-of-Genocide-and-Mass-Atrocity-Prevention.pdf
[5] Inter-American Institute of Human Rights. Contribution of Truth, Justice, and Reparation Policies to Latin American Democracies. https://www.corteidh.or.cr/tablas/28004.pdf
[6] United Nation Human Rights Special Procedures (January 2022). Special Rapporteur on the Promotion of Truth, Justice, Reparation, and Guarantees of Non-Recurrence. https://www.ohchr.org/sites/default/files/2023-01/Contemporary-perspectives-SR-Truth-01-2022-User-Friendly.pdf
[7] https://www.democraticprogress.org/wp-content/uploads/2013/11/SouthAfricaReport_PROOF11.pdf
[8] https://link.springer.com/chapter/10.1007/978-3-540-85754-9_16
[9] https://law.stanford.edu/wp-content/uploads/2018/04/Legal-History-and-the-Rule-of-Law-in-Timor-Leste.pdf
[10] https://www.ictj.org/sites/default/files/ICTJ-Brookings-Displacement-Truth-Telling-Timor-Leste-CaseStudy-2012-English.pdf
[11] https://www.ictj.org/what-transitional-justice