Accountability for atrocities—why Ethiopia should join the ICC

Regardless of the International Criminal Court’s failure, there are numerous reasons why Ethiopia should become a state party to the Rome Statute.

Following the conflict in Tigray and atrocities committed elsewhere in Ethiopia, the International Criminal Court (ICC) has been mentioned as a possible forum for seeking justice for victims of violence.

Legal experts, commentators, army personnel, and the broader public have been characterizing crimes committed in the country as atrocity crimes deserving of the attention of and possible investigation by the ICC. Even some parliament members were inquiring if it would be possible to bring those responsible for the Maikadra Massacre to accountability internationally. Some have taken a bolder initiative and gone to the extent of actually filing complaints to the ICC’s Office of the Prosecutor.

Although the call for the involvement of the ICC is understandable, it is currently impossible for the ICC to exercise jurisdiction over Ethiopia. That is because Ethiopia is not a state party to the ICC, and none of the other triggering mechanisms in the Rome Statute, the treaty establishing the Court, for commencing investigations are present.

Without a UN Security Council referral or self-referral as a non-state party based on Article 12(3) of the Rome Statute, there is no possibility for the ICC to investigate the situation in Ethiopia. A territorial jurisdiction model claimed by the ICC on Myanmar, a non-state party, following the alleged deportation of the members of the Rohingya people to Bangladesh, which is a state party, is also not present in the case of Ethiopia.

For now, it appears that all the doors for seeking justice at the ICC for victims of atrocity crimes in Ethiopia are closed.

The expectation for accountability for atrocity crimes committed in Ethiopia at the ICC appears to have been caused by the ICC’s presence as a global Court. The public enthusiasm and support for seeking justice at the ICC, however, raise the broader question of why Ethiopia is not a party to the ICC or if Ethiopia should be a party to the ICC. Below are possible reasons why Ethiopia failed to ratify the Rome Statute so far and some arguments for why Ethiopia should join the ICC.

Court of last resort

The ICC is a Court of last resort that is created to investigate and prosecute the gravest crimes of concern to the international community. These crimes are genocide, war crimes, crimes against humanity, and the crime of aggression. The ICC prosecutes those most responsible for the gravest crimes when the State in question is either unwilling or unable to do so. This means that the ICC plays a complementary role to national authorities and will only step in situations where the national authorities fail to deliver justice to victims of violence.

The Rome Statute, the treaty establishing the Court, entered into force on 1 July 2002. Currently, 123 countries are States Parties to the Rome Statute, out of which 33 are African. While the majority of African Countries, including neighboring countries like Kenya and Djibouti, are states parties to the Rome Statute, Ethiopia has not yet ratified the Rome Statute.

Late to the party

The absence of an official record indicating the position of Ethiopia towards the ICC, both during the negotiation of the Rome Statute and after the entry into force of the Statute, makes it difficult to unambiguously discern the motivation behind Ethiopia’s refusal to join the ICC.

However, what might be considered as an official position of Ethiopia came to light when, following the commencement of the trial against Kenyan authorities at the ICC, the African Union called for the mass withdrawal of African States parties to the ICC.

At that extraordinary meeting of the AU over the relation of the ICC and Africa, the then Ethiopian Prime Minister Hailemariam Desalegn, being the Chair of Assembly of the African Union, echoed the observation of the Assembly and asserted that the ICC’s process had “degenerated into some kind of race hunting.”

This being the collective position of the Assembly, it cannot be considered as a ground for Ethiopia’s refusal to join the ICC, not least because this accusation against the ICC came after more than a decade since the ICC had started working.

Due to the lack of an official record showing the position of the government, the only way in which the reasons for Ethiopia’s refusal to join the ICC may be assessed is through theoretical analysis. In theory, several reasons explain why States refuse to ratify international human rights treaties or accede to international organizations. These include, for instance, the high adjustment cost of ratifying a treaty, the presence of ratification hurdles, domestic clash of norms, and fear for potential accountability for violation of the terms of the treaty open for ratification.

The first three reasons do not appear to be the factors behind Ethiopia’s refusal to ratify the Rome Statute. First, the adjustment cost of ratifying the Rome Statute is complying with the terms of the Rome Statute. In other words, being a state party to the ICC entails the obligation to refrain from committing grave international crimes and massive human rights violations and bringing those responsible for grave crimes to justice.

Secondly, judging from the treaty ratification practices in Ethiopia, no conceivable ratification hurdles are expected to be faced by the government. While negotiating and signing international treaties are the powers of the Federal government, ratification of treaties is the power of the House of People’s Representatives. In practice, the house is unlikely to reject treaties negotiated and signed by the government.

Thirdly, the Ethiopian legal framework does not clash with the ICC legal framework. Crimes against humanity are unpardonable crimes under the Ethiopian Constitution, although the Criminal Code does not define it. Genocide and war crimes are criminalized by the Criminal Code.

Given Ethiopia’s poor human rights record, the reason that is most likely to explain Ethiopia’s failure to join the ICC is the fear of potential criminal accountability for widespread human rights violations by the government. In this sense, the government has been able to effectively block a robust accountability mechanism for massive human rights violations.

As is widely known, in the not-too-distant past, Ethiopia was a country that was running a torture chamber in its capital. Undoubtedly, the human rights violations in Maekelawi and elsewhere in Ethiopia were grave enough to attract international criminal accountability. Such government abuses still occur, but they are now rarer.

Ratifications reasons

At the outset, the main idea behind this piece is not to suggest that the ICC is a magic formula for the resolution of the complex political challenges in Ethiopia. Nor is the ICC a forum for fixing such complex problems. The ICC has limited investigative power, and it would be misleading to place unrealistic expectations on it and overstate what it can achieve by ignoring its limitations.

There is abundant literature critiquing the ICC’s mode of operations or its achievements and failures. This piece does not aim to engage with this body of literature. It only attempts to show why Ethiopia should be part of the global justice system—even with its existing limitations.

While the common reasons that motivated the 123 State parties of the ICC to join the court, such as commitment to justice or the fight against impunity, are equally relevant to Ethiopia, there are additional and intertwined reasons unique to Ethiopia that justify the ratification of the Rome Statute. These reasons emanate from the interest of the Ethiopian society, the alleged transformation in Ethiopia in commitment to human rights, the possible motivation behind atrocity crimes, and the ICC’s power to catalyze reform in Ethiopia.

Protecting civilians

First and foremost, Ethiopia is not promoting the interest of Ethiopian society by not being a party to the ICC, given that Ethiopian civilians are not free from the threat and reality of atrocity crimes in their daily life. The security situation in some parts of Ethiopia has generally deteriorated with increasing reports of civilian massacres.

Some have predicted the former Yugoslavian type of break up. The danger to civilians arises from a combination of factors that characterize the Ethiopian political landscape: increasingly deadly inter-ethnic tensions, lack of a democratic culture of handling political differences peacefully, the widespread presence of arms and organized armed groups.

Thus, the necessity of protecting civilians from the gravest crimes of concern to the international community arises from the reality on the ground in present-day Ethiopia, civilians being at greater risk of facing atrocity crimes more than ever. Prevention of future atrocity crimes and ultimately protecting civilians require implementing comprehensive prevention and protection strategies.

Justice plays an essential role in breaking cycles of violence that often cause unimaginable horror to the civilian population. It is precisely for this reason that Ethiopia needs the ICC. As shown, the reason behind Ethiopia’s refusal to join the ICC was to shield the government from accountability for human rights violations.

Now, priority should be given to protecting the Ethiopian people, and joining the ICC could be taken as part of broader preventive measures that Ethiopia should set up to prevent atrocity crimes.

Killing incentives

Secondly, and most importantly, a possible threat of prosecution by the ICC will likely serve as a disincentive to the use of mass killings as strategic means to achieve political goals. That is, mass killing is being used as a means of achieving political objectives or for coercing the government into political concessions. This is a worrying and disturbing political strategy that has been developing and taking root in the Ethiopian political landscape in recent years.

It seems that most, if not all, atrocity crimes committed against civilians and the destruction of the properties were strategic acts orchestrated by political leaders to achieve private political benefits. In this sense mass killings in Ethiopia are instrumental or part of a coercive strategy designed to force the opposing party into political concessions. In some cases, rebels have adopted an eliminationist strategy.

If the incentive to kill civilians and the destruction of property is driven by political aims, the counter-response should include measures that would likely act as disincentives. The ICC has the potential to be a disincentive to political leaders who might use mass killings and the destruction of property as a means of achieving political goals. ICC’s power to stigmatize those most responsible for atrocity crimes is highly needed in present-day Ethiopia.

Respecting rights

Thirdly, by joining the ICC, the current Ethiopian government will signify its position as a government that respects and upholds human rights. As is widely known, in the not-too-distant past, violence against civilians was primarily a result of the use of coercive force by the government, and massive human rights violations were committed by the government with complete impunity.

A break away from this painful past would warrant not only a mere commitment to human rights and international human rights treaties but also requires subjecting the government to a more robust international accountability mechanism for massive violation of human rights. By making Ethiopia a party to the ICC, the government will subject itself to the highest standards of human rights and humanitarian law.

The ICC has the potential to positively shape the behavior of the current and future government in Ethiopia. If the commitment of the current Ethiopian government to human rights and preventing atrocity crimes is real and genuine, there is no reason why the government should not ratify the Rome Statute. Besides, the message that joining the ICC would send to the public and political leaders is powerful. It would enable civil societies and interested individuals to campaign for accountability for atrocity crimes.

Impartial investigations

Fourthly, as a politically and ethnically divided country, the ICC’s capacity to conduct independent and impartial investigations is probably one of the most attractive aspects of the ICC for Ethiopia. The divisions are so deep in Ethiopia that sometimes the way out seems near impossible.  It will not be an overstatement to say that the impartiality and independence of democratic institutions in Ethiopia is one of the most frequently raised divisive issues.

Ethiopian democratic and security institutions suffer from a lack of trust, both domestically and internationally and, this has led to the tendency to reject the institutions as biased. Although the government has not so far allowed it to happen, most incidents of mass killings are usually followed by domestic and international calls for impartial and independent investigations. A case in point is the recent massacre in Maikadra.

Unlike domestic courts, in a highly politically and ethnically divided society like Ethiopia, the ICC will likely be seen as a neutral judicial mechanism and will not suffer from a trust deficit like the domestic institutions.

Reform catalyst

Fifthly, the ICC will help catalyze reform regarding the legal framework regulating atrocity crimes in Ethiopia. The provisions relating to atrocity crimes in the Ethiopian Criminal Code are not comprehensive, and as such, they do not fit the nature of atrocity crimes committed in present-day Ethiopia. For example, crimes against humanity are not defined, although it is one of the most frequently committed crimes in present-day Ethiopia.

Moreover, the ICC will help enhance the Ethiopian justice system’s capacity to investigate and ensure accountability for atrocity crimes. A comprehensive atrocity crimes prevention strategy should include both the global justice system, which can deal with the untouchables or the high-level organizers behind atrocity crimes and the local justice system, which is best placed to deal with face-to-face perpetrators.

Global justice  

Finally, it is a paradox that Ethiopia has been and is an active participant of the global and regional platforms for the promotion of peace and security, but absent from the global justice system. Ethiopia is an active participant in troop contribution to the UN’s peacekeeping missions around the world. Ethiopia’s active participation in peace-keeping operations in many countries is a testament to Ethiopia’s unwavering commitment to the promotion of peace and preventing the consequences of wars through international cooperation.

Ethiopia has also been actively participating in major international institutions and is a party to the core international human rights treaties, including ICCPR, ICESC, and CEDAW. Ethiopia is one of the founding members of the United Nations, the first independent African country to join the League of Nations, and was among the first countries to ratify the Genocide Convention.

Accountability time

Judging from the current political trajectory in Ethiopia, it is unlikely that the current conducive environment for atrocity crimes will change anytime soon. This means that there remains to be a high risk for a further commission of atrocity crimes and victimization of civilians. Now is the time for Ethiopia and the international community to act decisively and urgently and take appropriate measures to prevent atrocity crimes and further victimization of civilians.

The Ethiopian government can pursue various strategies to deal with this unfortunate reality in the country. The first should focus on putting in place preventive measures, including diffusing the current political and social tensions creating a conducive environment for atrocity crimes. In this regard, the evidence from elsewhere is clear: preventing atrocity crimes should be given priority and is much cheaper than dealing with it afterwards.

However, in the unfortunate scenario that preventive measures fail to work, clearing the legal roadblocks that will likely thwart accountability mechanisms or other transitional justice interventions is necessary. In this regard, the first thing the Ethiopian government could and should do is to establish a comprehensive legal framework for atrocity crimes and join the Internal Criminal Court.

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This is the author’s viewpoint. However, Ethiopia Insight will correct clear factual errors.

Main photo: The International Criminal Court in The Hague, Netherlands; 2018; Human Rights Watch.

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