Revisions are needed to ensure a comprehensive transitional justice process that complies with human rights.
From 21-24 February, Ethiopia's Justice Ministry held validation workshops on a draft policy to deal with the country's violent past through transitional justice. The policy is the first of its kind in Ethiopia's history and potentially a major step forward in bringing peace. It focuses on transitional justice pillars and cross-cutting issues, and outlines the role of regional states, federal government offices and civil society in the implementation process.
Victim groups, opposition political parties, transitional justice experts, civil society organisations, and representatives of regional and federal courts and justice offices participated in the workshops. The draft policy has yet to be made public. This article is based on the workshop presentations, which the ministry says encapsulate all the policy's key elements.
While broader policy positions may be refined through subsequent implementing laws and strategies, 10 key considerations must be thoroughly considered before the policy is adopted.
Unlike the public consultations report, which was reportedly the basis for the policy, the workshop presentations didn't highlight the role of international experts in the proposed special court or prosecution mechanism. This aspect is vital as it aims to improve public trust in the process while preserving national ownership.
The draft policy doesn't highlight the role of international experts in the accountability mechanism
As for criminal accountability, the draft policy delineates a dual approach. It mandates accountability for those most responsible (defined according to international jurisprudence), while outlining a pathway for less culpable individuals that offers conditional amnesty for truth-telling.
Given that participation in the amnesty process is based on the consent of an alleged offender, the fate of individuals who are neither 'most responsible' nor choose to partake in the truth-finding process should be addressed. This omission could lead to a state of impunity for this group.
The policy states that prosecutions focus on crimes committed since 1995 - a decision that aligns the temporal scope of criminal accountability with the adoption of Ethiopia's current constitution. This is not ideal for two reasons. First, criminalisation and prohibition of international crimes such as genocide and war crimes didn't come with the constitution, but in 1957, with the promulgation of a penal code.
Second, since Ethiopia had prosecuted the 1974-91 Dergue-era crimes - though the process was suboptimal - using 1995 as a starting point for the forthcoming prosecutions will create an accountability gap for the 1991-95 transitional period. That period was as marred by allegations of human rights violations as any other in Ethiopia. Plus, a recent public perception survey shows that over half (54%) of Ethiopians demand prosecutions for crimes committed since 1991.
The policy unconventionally leaves the Truth Commission's temporal scope open-ended
The draft policy unconventionally leaves the Truth Commission's temporal scope open-ended, allowing investigations to extend as far back as evidence of atrocities can be found. This may result in cherry-picking situations and events, which could easily be politicised and become a recipe for disagreement, not reconciliation or healing victims' wounds.
The draft policy also assigns a broad mandate to the Truth Commission, covering areas like truth finding (which could include missing persons), reparations, memorialisation, amnesty and traditional justice. Although the drafters might have felt the need for fewer institutions, this wide scope risks overburdening the Truth Commission. A broad mandate led to the ineffectiveness of the Ethiopian Reconciliation Commission (2019-2021) before its dissolution.
The draft policy doesn't grant amnesty for international crimes committed after 1995 and by those most responsible. The Truth Commission may, however, grant amnesty for pre-1995 international crimes, irrespective of the status and role of an alleged perpetrator. This contradicts the obligation to prosecute international crimes, which shouldn't be subjected to a statutory limitation.
The draft policy proposes addressing the accountability of Ethiopian fugitives and foreign perpetrators primarily through the extradition process. That could be a vital tool to ensure the accountability of Eritrean forces implicated in Tigray atrocities, as mentioned in the workshop.
But the policy chose a narrow approach, which will probably have a slim chance of success, for two reasons. First, extradition isn't Ethiopia's strong suit. Some 2 188 of 5 119 offenders were prosecuted in absentia in the Dergue trials, partly due to unsuccessful extradition requests. Currently, Ethiopia has bilateral extradition treaties with just seven countries. Second, requested states often refuse to extradite their nationals, which Eritrea could do.
Accordingly, the policy should highlight the need to fight impunity through a broader spectrum of international cooperation in criminal and non-criminal matters. This includes extradition, mutual legal assistance and pursuing legal action against a third state via the International Court of Justice or the African Commission on Human and Peoples' Rights to ensure prosecution or extradition.
The policy overlooks the inclusion of opposition political groups in its implementation framework
The draft policy excludes the Ethiopian Human Rights Commission and the Ministry of Women and Social Affairs from the list of government offices that could support and monitor implementation. Their involvement would likely enhance the process's credibility. In collaboration with civil society organisations, the Ethiopian Human Rights Commission could monitor overall human rights compliance, while the ministry could ensure the process's gender inclusivity.
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The draft transitional justice policy overlooks the inclusion of opposition political groups in its implementation framework. They are mentioned neither in the oversight stakeholder groups nor in the independent ad hoc committee for vetting judges, prosecutors, experts and commissioners. Since most political parties have formed a Joint Council to enforce a common agenda, this council could offer a practical avenue for their involvement. Their inclusion could foster a broader consensus on transitional justice.
While delineating various pillars and facets of transitional justice, the draft policy overlooks a crucial aspect of implementation - sequencing. It should acknowledge, at least in broad strokes and in alignment with the African Union Transitional Justice Policy, that executing transitional justice measures requires a meticulously planned sequence. Each component of the justice process needs to be introduced at the right time, allowing for a cohesive and systematic progression of steps.
While the specifics of this sequencing can be elaborated in the implementation roadmap - as promised during the validation workshops - the initial policy document should set the groundwork by highlighting sequencing as one of the fundamental principles of transitional justice.
Tadesse Simie Metekia, Senior Researcher, Rule of law, ISS Addis Ababa
