A confidential document submitted to the Ministry of Justice by the United Nations Office for the High Commissioner for Human Rights (OHCHR) reveals that a significant portion, if not most, of the agency’s recommendations for Ethiopia’s recently approved transitional justice policy were sidelined.
Feedback from OHCHR made its way to experts at the Ministry in charge of drafting the policy on March 1, 2024, nearly two months before it was approved by the Council of Ministers. A look at the document reveals that many of its recommendations never made it into the final draft.
Among the points that were left out are concerns over definitions included in the policy. The UN agency noted that the definition of a ‘victim’ stipulated in the policy was linked to “systematic and large-scale” human rights violations, which it warned could risk excluding “a significant section of the population.”
It recommended adjusting the definition of victim to better align with international human rights laws. The final policy, however, fails to do so.
OHCHR also notes ambiguities in the definitions of ‘perpetrators’ and the terms ‘leading’ and ‘coordinating’ in reference to human rights violations. It urges that the definitions be clarified to explicitly spell out “individuals in senior leadership positions who gave the order and those who incited the crimes.”
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The agency stressed the importance of mentioning that official immunity will not protect or shield perpetrators from accountability for human rights atrocities. It is advice that went unheeded.
OHCHR advised the experts behind the policy to limit the scope of the policy to one or two generations before the present, noting that it “would be unrealistic to raise victims’ expectations that everyone would be entitled to reparations.”
The final policy sets 1995 as the start date for the efficacy of transitional justice. Though the year marks the introduction of the current Ethiopian constitution, many agree that lingering issues stemming from the Dergue regime are reflected in modern Ethiopian politics and should be covered by the policy.
The agency also urged that references to “gross human rights violations” be replaced by terms outlining the “obligation to investigate and prosecute gross violations of international human rights law and serious violations of international human rights law.”
It is difficult to distinguish clearly whether these terms have been included in the final policy, as only an Amharic version has been published so far. There are no indications as to whether an English translation will follow.
Another issue raised by the OHCHR is concerning Tigray, where it says the concept of “using home remedies for criminal accountability has been challenged by many stakeholders.” It calls for the policy to underscore the need for international judicial cooperation to foster transparency and trust in the transitional justice process.
“Formally allowing such cooperation through clear incorporated language in the policy will help deter tension and address any deficit of trust,” reads the feedback document.
OHCHR also notes ambiguities in setting conditions for amnesty, which it says the policy only writes off for “offenders who have high level participation in the commission of gross human rights violations.”
“This provision is not fully compliant with international human rights law under which amnesties are impermissible where they conflict with existing obligations to prosecute persons responsible (regardless of the perpetrator’s role) for gross… and serious violations of international humanitarian law,” it reads.
These include torture and sexual violence.
OHCHR also listed several recommendations regarding institutional arrangements for the implementation of the transitional justice policy.
The final policy mandates a single commission to discharge several mandates including truth seeking, amnesty, and reparations.
“It would be important to revisit whether the truth-seeking commission body should be mandated with granting conditional amnesties,” reads the document.
It urges the experts behind the draft to consider separating the mandate of truth seeking and reconciliation so as to avoid “misleading the public (including victims) that uncovering the truth about past atrocities automatically equates to reconciliation – which is not necessarily the case.”
“The effective implementation of all transitional justice components will contribute to reconciling Ethiopian society, not the work of one single institution with a narrow mandate,” OHCHR stated.
The document also calls for additional legislation to allay concerns that the policy “may not suffice to provide a comprehensive legal basis.”
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