Ethiopia’s Transitional Justice Special Bench – more than just a criminal tribunal
The Special Bench should have jurisdiction over a broader range of disputes – not merely function as a criminal tribunal.
Following an international experts’ conference last December, draft laws establishing specialised institutions to address past atrocities in Ethiopia are being revised. Public consultations on these revised laws are scheduled for April, say the Ministry of Justice and Federal Supreme Court.
The ministry oversees the development of laws on the Truth and Social Cohesion Commission, the Special Prosecutor’s Office, and the Vetting Commission. The Federal Supreme Court is leading the drafting of the law and establishment of the Transitional Justice Special Bench, a federal judicial body primarily tasked with prosecuting individuals most responsible for gross human rights violations.
The Special Bench is envisioned as a criminal tribunal with jurisdiction over international crimes including torture, enforced disappearance, war crimes, genocide and crimes against humanity. It is also expected to interpret the principle of double jeopardy in accordance with international standards, and address cases where such crimes were mischaracterised as ordinary crimes through sham trials.
In line with the national transitional justice policy, the Special Bench will have three tiers. A bench with first-instance jurisdiction, housed within the Federal High Court. Where necessary, regional-level special benches may also be established. Appellate and cassation functions will fall under dedicated chambers in the Federal Supreme Court.
While consistent with international practice, the Special Bench’s criminal justice focus is too narrow for Ethiopia
However, while consistent with international practice, the Special Bench’s criminal justice focus is too narrow for Ethiopia’s process. For transitional justice to be implemented lawfully and coherently, the Special Bench needs an expanded mandate to oversee transitional justice institutions.
This would allow it to not only try international crimes, but serve as the primary judicial authority for resolving legal disputes arising from the broader transitional justice process.
There are several reasons to broaden the Special Bench’s jurisdiction. First, Ethiopia’s transitional justice model differs from the typical sequencing approach in other contexts. Rather than addressing truth-seeking, justice, reparations and institutional reform in stages, it establishes multiple mechanisms simultaneously. This raises the risk of legal conflicts, inconsistent implementation, and case referral or jurisdictional ambiguities.
Disputes may arise, as has happened elsewhere. For example, in South Africa, the legality of an amnesty granted by a truth commission was questioned. A Special Court Prosecutor and Truth Commission could contest their respective mandates and duties, as occurred in Sierra Leone. Or the Vetting Commission could be accused of lacking accountability, exceeding its legal authority, or neglecting its responsibilities, as happened during Iraq’s fraught de-Baathification process.
Second, the process has introduced important new components such as the commitment to victim participation and application of traditional justice mechanisms. These can cause legal disputes when integrated with conventional ‘formal’ law. Victims and survivors, organisations representing them, and traditional institutions may claim they are being undermined or inadequately represented across transitional justice mechanisms. Such claims should be subject to legal adjudication.
Third, the absence of alternative avenues for effectively addressing such concerns necessitates expanding the Special Bench’s mandate. Ethiopia’s House of Federation – a political body with constitutional interpretive authority – often acts as a court of last resort for matters that have exhausted judicial remedies. But it grapples with case backlogs.
Assigning oversight functions to regular courts raises concerns about judicial independence and public trust
The Special Bench could function as a court of first resort for urgent legal questions, including those involving the transitional justice process’s compliance with international standards and the country’s constitution. It could play a vital role in identifying, refining and channelling issues that may warrant the House of Federation’s interpretation.
Assigning the oversight function to the regular court system, such as the Federal Supreme Court’s Cassation Bench, might appear expedient but raises concerns about judicial independence and public trust. Indeed, the rationale for establishing the Special Bench was to address concerns over regular courts’ integrity and impartiality.
Likewise, victims’ complaints, procedural appeals and disputes over reparative commitments are best handled within a judicial body designed with their needs in mind. Assigning such matters to regular courts risks procedural neglect or marginalisation.
The forthcoming Transitional Justice Implementation Coordinated Institutional Mechanism – envisioned as a multi-stakeholder structure to oversee cooperation and effective coordination among transitional justice institutions – could address disputes between institutions.
Such a platform could help foster political consensus, stakeholder engagement and strategic alignment. However, it is fundamentally unsuited to adjudicate disputes to ensure legal coherence, reduce institutional turf wars, and protect the process’s integrity.
By contrast, the Special Bench is deliberately insulated and equipped with procedural safeguards, providing a neutral, credible venue for resolving transitional justice disputes. Furthermore, an oversight role would allow the Special Bench to issue binding interpretations that guide the work of various transitional justice institutions.
Expanding the Special Bench’s jurisdiction to include oversight and coordination functions may raise legitimate concerns about institutional overreach and judicial backlog. But these could be mitigated through strategic planning, careful allocation of responsibilities and procedural sequencing.
With oversight functions, the Special Bench could serve as the judicial backbone of the entire transitional justice process
The operational demands on the Special Bench would unlikely be overwhelming at first. The bench will become fully operational only once the Special Prosecutor’s Office begins filing indictments and judicial hearings commence, which could take time. This allows the Special Bench time to adjudicate early-stage legal disputes without excessive caseloads or administrative congestion.
Moreover, the expanded jurisdiction could be managed by distributing responsibilities across the Special Bench’s three levels. For instance, specific categories of oversight-related disputes could be assigned to the Special Appellate Bench. The Special Cassation Bench could be empowered to adjudicate cases involving fundamental errors of law or issues that would eventually lead to constitutional interpretation.
This tiered approach would allow the First Instance Special Bench to concentrate primarily on core judicial functions, including issuing arrest warrants and detention orders, and international crime-related trial proceedings.
By structurally diffusing the oversight mandate across appellate and cassation levels, Ethiopia’s Transitional Justice Special Bench could become more than a forum for criminal trials.
If entrusted with oversight jurisdiction, it could serve as the judicial backbone of the entire transitional justice process. Given the lack of alternatives and the overall nature of Ethiopia’s transitional justice, a Special Bench with expanded jurisdiction is not an institutional luxury – it is a systemic imperative for justice, reconciliation and durable peace in Ethiopia.
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