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In DepthMaking sense of the Rights Council investigation into Ethiopia’s crisis

Making sense of the Rights Council investigation into Ethiopia’s crisis

To Ethiopia’s dismay, a resolution on the grave human rights violations in Ethiopia was adopted by the United Nations Human Rights Council (UNHRC) on Friday, December 17, 2021, in a special meeting requested by the European Union (EU). The request by the EU was signed by 17 Council members and 35 non-Council member states.

Ethiopia rejected the initiative from the get go and state-affiliated media were criticizing it as it lacked any support from African states. But for the TPLF, as indicated in a statement on December 18, 2021, the decision was “taken with appreciation” and an indication that “Though belated, the international community has done justice to the fact in recognition that the issue of Tigray has wider regional and international implications.”

However, the Ministry of Foreign Affairs (MoFA) called on members of the Council to vote against the special session in a statement it issued on December 13, 2021, following the request by the EU for UNHRC to hold a special session on Ethiopia.

“Some in the Human Rights Council, which have an utter disregard for the efforts made and work done by the Government, have felt the need to call for a special session with the aim to have some sort of an outcome to achieve what seems to be a politically motivated objective,” read the statement.

Billene Seyoum, Foreign Languages and Digital Media Head and Press Secretariat at the Office of the Prime Minister, stated that the government categorically rejects the whole process because it was “politically motivated” and “it does not make any sense to rally behind new investigations that are looking into the same period as the recent investigation – simply because some did not get the results they had anticipated.”

Launching a new investigation, while actions are being taken by the government based on the recommendations of the November 3, 2021 joint investigation report by the Ethiopian Human Rights Commission (EHRC) and the United Nations Office of High Commissioner for Human Rights (UNOHCHR), according to Billene, “in essence is abusing international norms and resource to undertake a redundant activity.”

On the other hand, commending the joint investigation conducted by the EHRC and the UNOHCHR for the “impartial and transparent conduct of their work,” the resolution passed by the Council indicated that the new effort will be yearlong with a possible extension to the investigation which will build on the findings of the joint investigation. Hence, it will heed the findings of the prior investigation as the report “indicated that there was a need for further investigation of a number of alleged violations and abuses committed by all parties between November 3, 2020 and June 28, 2021.”

In a letter the EHRC addressed to the UNHRC President, Nazhat Khan, on November 14, 2021, and copied to the High Commissioner of the UNOHCHR, Michelle Bachelet, that The Reporter accessed, the Commission requested for the council to render help to the implementation of its investigation done with the UN body. The EHRC believed some provisions within the resolution are “counterproductive to current positive processes and particularly to the right to redress thousands of victims and survivors, and expressed its concern “about the proposal to establish a body with a similar mandate to the JIT and covering a similar period as that of the joint investigation.”

The EHRC also feared the resolution “risks reopening further deliberations on their truth as victims and survivors, while the next step should have been rehabilitation, restitution, and compensation, as well as prosecution of the perpetrators.”

The USD three million project the Council formed will have three human rights experts to be appointed by the President of the Human Rights Council and stationed in Entebbe, Uganda.

Although the EHRC has expressed its concerns to the President of the Council, Rakeb Melesse, Deputy Chief Commissioner for the EHRC said that the final resolution addressed some of the concerns raised in the letter. According to her, the work of the Independent Commission of Human Rights Experts is to be considered as an addition on and not to replace the work already done by the EHRC and OHCHR through the joint investigation.

However, she is sceptic of the relevance of launching a new investigation, while there is a local institution capable of conducting an investigation.

“The joint investigation and the report and recommendations thereof are evidence that there is a local institution that is independent, effective and capable enough to conduct an investigation into the alleged human rights violations in relation to the Tigray conflict, with minimal support from international human rights organizations such as OHCHR. It would make more sense to continue building the capacity of the national human rights institution than to establish a new parallel structure and conduct the investigation,” Rakeb said in an email response to The Reporter.

Hence, “This is not in line with strengthening local capacity for long term sustainability. EHRC is of the opinion that the focus of the Human Rights Council should have been on the implementation of the recommendations by all parties, to ensure accountability of perpetrators and redress for victims; to support EHRC and OHCHR to carry out further investigation and cover areas that are not covered by the joint investigation; and advocate that TPLF and other actors involved in the conflict recognize and cooperate with the work of EHRC and OHCHR,” Rakeb said.

But she believes that, as seen in the amendment of the resolution before it was adopted, as well as the work of the Independent Commission of Human Rights Experts, it would complement the joint investigation conducted by the Commission with the UN body. But this is dependent on the definition of roles of the Independent Commission of Experts.

“The way the UN Resolution has been modified before adoption seems to suggest that the work of the Independent Commission will complement the work already done by the EHRC and OHCHR and not duplicate that. However, it is not clear whether that is the same thing for the investigation being conducted by the EHRC after the joint investigation came to an end in November, while the EHRC continued to investigate alleged human rights violations as the conflict spread in the Amhara and Afar regions,” Rakeb observed.

For Muluken Kassahun, an assistant professor at Metu University and a PhD candidate at Addis Ababa University’s Centre for Human Rights, the impact of any outcome from the investigation depends on the findings, response of the international community and the Ethiopian government as well as the political interest of the United Nations Security Council (UNSC) members. However, the historical trend shows there was no uniformity of measures. The UN and the West employ double/ multiple standards for different countries. The power balance between the global north and south may have impacts on the outcome of the investigation.

Muluken says possible outcomes of such investigations may have impacts on fact findings on Gross human rights violation, identify types and status of human rights violation or not such as genocide or war crimes; request concerned state to take appropriate measures to prevent and stop such violation, and may request international actors such as the Security Council to take further action (like sanction or military intervention) if the state is found to be involved in the violation or has failed to take appropriate measures.

When it comes to Ethiopia, the investigation may affect the international reputation of the country, lead to the imposition of different sanctions such as arms embargo, travel restrictions, petroleum import restrictions, non-petroleum commodities embargo, financial restrictions, general trade restrictions, non-primary and luxury commodities’ restrictions as well as diplomatic restrictions.

In addition, it might lead to “requesting individual responsibility at international level such as International Criminal Court,” as was seen in the case of Oumar Al-Basher of Sudan in the Case of Darfur HRC Investigation.

Indirectly, it could also affect international diplomacy and relations both in the bilateral and multilateral realms, impact the attraction of foreign businesses in the forms of foreign direct investment and tourism and result in shortage of foreign currency, Muluken expounded.

But the Ethiopian government has denied cooperation with any entity appointed without its endorsement and this might hinder the process of investigation. Muluken says consent from the concerned state is crucial for such investigations. However, this does not mean it would stop the investigation from happening.

“Similar challenge happened when the UNHRC started its fact finding mission in 2006 concerning Israeli abuses in Palestinian territories. Lack of cooperation from the authorities has not prevented investigations and fact-finding from taking place nor commissions/missions from reaching conclusions,” Muluken said.

Muluken also indicated that as seen in the operation of the OHCHR fact-finding Mission to the Syrian Arab Republic (2011), the United Nations Fact-finding Mission on the Gaza Conflict (2009), and its follow-up expert committees, these bodies resort to visiting neighboring countries to meet persons, who may have first-hand information on the events under investigation, inviting witnesses and victims to testify outside their country, relying more heavily on official statements and material in the public domain, as well as on informal contacts with individuals able to relay official positions.

“In our case, the UNHRC document shows the data will be collected from Ethiopian refugees in Sudan and Kenya,” he pointed out.

In order to overcome the challenges the government may pose, the investigating team might resort to alternative data collection methods, Muluken said. Although the Ethiopian government may prohibit them from entering the country, it has no authority to prevent investigations conducted in foreign and neighboring countries or the diaspora community. The UNHRC experts can also collect data virtually from individuals living in Ethiopia even from government officials confidentially and from the TPLF officials based on their consent.

“However, without cooperation of the Ethiopian government, it is difficult for the commission to implement the mandate of providing guidance on transitional justice, reconciliation and healing, as appropriate, and to make recommendations on technical assistance to the Government of Ethiopia to support accountability, reconciliation and healing,” Muluken said.

“On the flip side of the coin, this denial of recognition to the UN body from conducting investigations might have its own repercussions on Ethiopia, such as adopting further resolutions to influence the peace process between conflicting parties, establish mechanisms of monitoring compliance with the Council’s demands to warring parties, employ various incentives, threats, and sanctions, authorize peace keeping operations as a last resort and naming and shaming,” Muluken added.

The UNOHCHR 2015 Commissions of Inquiry and Fact-finding Missions on International Human Rights and Humanitarian Law: Guidance and Practice document acknowledges that cooperation with a state can be difficult when the government does not consent or agree to the establishment of a commission/mission. Such missions require consent to enable them have access to persons, locations and documentation necessary to carry out its investigation.

“A challenge faced by several commissions/missions has been the unwillingness of Governments, non-State actors or the authorities that are the subject of investigation to cooperate. Lack of cooperation may vary from refusing to speak with and provide information and relevant documents to these bodies, to barring them from entering the country or the area where the incidents under investigation took place, and intimidating victims, possible witnesses and sources of information to prevent them from cooperating with the investigators,” reads the document.

In order to overcome these challenges, the OHCHR recommends methodological approaches similar to what Muluken indicated.

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