Ethiopia’s proposed Special Prosecutor: history repeating itself?
The forthcoming Special Prosecutor’s Office must do better than the mechanism set up to deal with Dergue-era crimes.
Published on 08 May 2024 in
ISS Today
By
Temesgen Lapiso Doile
Former director-general for the Organized and Transnational Crimes Prosecution Directorate General, Ethiopian Ministry of Justice
Ethiopia’s new transitional justice policy, endorsed last month by its Council of Ministers, shows how the country is taking concrete steps to deal with its abusive past.
The policy’s provisions include establishing a Special Prosecutor’s Office (SPO) to investigate and prosecute international crimes committed by those most responsible since 1995. However, the SPO fails to fully incorporate public and expert insights gathered by the Transitional Justice Working Group of Experts. Although the group advocated for the significant involvement of international experts as co-prosecutors and investigators, the final policy limits their roles to advisory and capacity-building activities.
The SPO resembles the one established in 1992 to deal with Dergue regime (1974-91) crimes. Sources say the Council of Ministers swiftly approved proposals for the new SPO by drawing on Ethiopia’s past experience.
But the country needs a fundamentally different approach to criminal accountability, and the proposed SPO must surpass its predecessor. The 1992 SPO, active until 2010, epitomised ‘victor’s justice’. It prosecuted only Dergue regime members and associates, and didn’t address accusations of violence and atrocities committed by other groups, such as the Tigray People’s Liberation Front (TPLF), Oromo Liberation Front and Ethiopian People’s Revolutionary Party.
The 1992 SPO was designed to be a partial institution and lacked independence, expertise and funding
To allegedly prevent implicating prominent warring groups such as the TPLF, the SPO largely avoided prosecuting misuse of aid and war crimes, except for a single case on aerial bombardments of places like Hawzen in Tigray. The 1992 SPO was designed to be a partial institution accountable to the Transitional Government of Ethiopia’s prime minister at that time. It lacked independence, expertise and funding.
Regarding resources and expertise, the 1992 SPO paled in comparison to global counterparts like the International Criminal Tribunal for Rwanda (ICTR). One commentator said comparing the two was ‘like trying to compare the weight of an elephant with that of a mouse, the scale tipping heavily in favour of the ICTR.’ Even then, the SPO largely resisted international expertise, except in forensic support for mass exhumations and identification of bodies.
The lack of skills and funding meant the SPO had to rely on documentary evidence left behind by the Dergue due to its abrupt departure. It failed to prosecute crimes such as gender-based violence despite numerous allegations of these offences during the civil war, in detention centres and torture chambers.
The SPO lacked an intelligence-led investigation strategy and failed to secure cooperation locally and internationally. Almost half of its defendants (2 188 of 5 119) were prosecuted in absentia. Some were in Ethiopia but weren’t arrested, or had died; while others fled the country to whereabouts unknown. Throughout its operation, the SPO managed only one extradition. Melaku Tefera, the ‘Butcher of Gondar’, was extradited from Djibouti in 1994 and convicted of genocide.
The proposed SPO will be Ethiopia’s most significant institution as far as criminal accountability is concerned
Shortcomings that affected the 1992 SPO continue to impact regular investigation and prosecution departments today. These institutions lack public trust and still need to be thoroughly reformed and equipped. Planned vetting and lustration processes have yet to be implemented.
Regardless, the policy says the future SPO would collaborate with the regular prosecution department. Collaboration is positive but must be approached with care. Law enforcement members might be implicated in crimes within the SPO’s purview – which means collaboration may undermine the accountability process.
Although the prosecution department has handled genocide cases before, often sub-optimally, several experienced prosecutors have left. There is also limited domestic precedent and expertise in investigating and prosecuting other international crimes, specifically war crimes and conflict-related sexual violence. Crimes against humanity, enforced disappearance, torture and command responsibility have yet to be proscribed by Ethiopian law.
The task of establishing the new SPO will be complex. Compared to the 1992 office, which dealt with crimes committed over 17 years, the forthcoming SPO will tackle multiple atrocities spanning three decades since 1995.
Adding to the complexity, Ethiopia’s post-1995 conflict landscape has evolved significantly, encompassing diverse conflicts beyond the government-rebel dynamic of the Dergue era. Moreover, unlike its predecessor, the upcoming SPO is expected to prosecute atrocities committed by foreign forces, particularly Eritrean forces during the recent war in Tigray.
Furthermore, while the 1992 SPO initiated fresh investigations into crimes committed during the Dergue era, the new SPO will inherit many investigations conducted by the Inter-Ministerial Task Force, the regular prosecutor, the Ethiopian Human Rights Commission and regional bodies in Tigray and Amhara. These investigations are often criticised as biased and incomplete, posing challenges for integrating existing findings and excluding compromised experts.
The policy lacks independence guarantees for the SPO and doesn’t say who the office will be accountable to
The forthcoming SPO will be Ethiopia’s most significant institution as far as criminal accountability is concerned. No independent commission of inquiry has been established to look into Ethiopia’s past crimes, and the legal system doesn’t provide for investigative judges or magistrates. Without these, the SPO will wield significant discretionary power in setting prosecutorial priorities – determining who should or shouldn’t be prosecuted, which crimes and situations to pursue, and a timeline for the process.
Overall, the complexity and diversity of situations and perpetrators will render the task daunting. Complete independence, impartiality, financial autonomy and adequate staffing are essential to ensure the SPO avoids the precedent of victor’s justice and a sub-optimal process that fails to comply with international standards.
The current policy lacks explicit guarantees of independence and impartiality for the SPO, especially compared to the detailed provisions on the proposed Special Bench – separate chambers in the federal court system to adjudicate cases under the SPO’s jurisdiction.
While the policy mandates stringent vetting processes for Special Bench judges, it has no corresponding provision for the SPO’s prosecutors and investigators. The Special Bench will answer to the Supreme Court and Parliament, but the policy doesn’t specify to whom the SPO will be accountable.
Legislation enabling implementation of the policy and SPO could include guarantees of independence and impartiality. This will ensure that the proposed Special Prosecutor’s Office does not perpetuate old patterns.
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