Viewpoint

A legal solution to Ethiopia’s military problems in and around Tigray

The same zeal for solving entrenched disputes on the battlefield needs to be taken to the legal arena. 

The armed conflict that broke out on 3 November 2020 between, primarily, the Ethiopian National Defense Force (ENDF) and the armed forces of the Tigray Regional Government has resulted in an immeasurable loss, injury, and damage to all parties.

Although the ENDF has declared that it has withdrawn from the region, Tigray forces claim that some of their territories are still in the hands of Ethiopian forces (including Amhara regional forces) in the south and Eritrean forces in the north, and have declared their intentions to retake them through the use of military force unless relinquished.

The northern boundary has been delimited by the Eritrea-Ethiopia Boundary Commission established under the Algiers Agreement of December 2000. Since Prime Minister Abiy Ahmed took power in Ethiopia in April 2018, Ethiopia and Eritrea have, after two decades of stalemate, agreed to implement the Boundary Commission’s decisions made on 13 April 2002.

Although the recent Tigray conflict has complicated matters, the Commission’s decisions remain, as far as the two countries are concerned, final and binding.  In that sense, the resolution of Tigray’s northern boundary would not require re-litigation.

Whether Tigray remains a part of Ethiopia or seeks independence, a similar mechanism for the delimitation and demarcation of the boundary between Tigray and the rest of Ethiopia is a necessary first step in ensuring lasting peace in the whole region.

Recognizing that this is still technically a national administrative border issue, the events of the last three years, and more particularly the armed hostility of the last eight months, have undermined the possibility of maintaining Tigray as part of the federation. Although continuing unity is still possible, it is not too early to begin debating the terms of legal separation and post-conflict justice.

Such debate has the potential of offering a legal solution to Ethiopia’s military problem.

There is now enough incontrovertible evidence in the public domain that shows that neither side can achieve what it desires militarily. The Federal Government has admitted that, despite its maximum efforts, local hostility coupled with unrelating, fragmented, and fierce military resistance made continued occupation unreasonable.

The Tigrayan forces claim that they made the ENDF occupation of Tigray impossible through continuous military engagement and claim to have driven ENDF and Eritrean forces out.  Although the versions differ on who was more militarily astute, uncontested facts establish that neither can achieve its objectives militarily—although neither seems ready to admit that fact, at least in public.

What could be extrapolated from publicly available information is that the Tigrayan forces aspire to take over the territory that they lost to Amhara forces in November in the west and south. Those areas have significant economic and strategic importance to Tigray.

While Tigrayan forces have recently made advances in the south, the west is ferociously defended by ENDF and Amhara forces. It is so not only because of the real and perceived advantages that it would provide to the Tigrayan forces but also because of unsettled competing historic claims to territory and related identity-based grievances. Even if a forcible takeover succeeds, like the one we saw in the south, it would only be temporary. The continued military maintenance of these contested territories by either side is sure to be exceedingly costly and troublesome.

It is now widely recognized that the Ethio-Eritrean war of 1998-2000 was senseless. There will come a time when all recognize that this war was also needless. At least two things could be done to ameliorate the conditions of those affected by it: codifying the cessation of hostilities in a peace agreement and establishing independent international arbitral boundary and claims tribunals.

Neither one of the Commissions that the Algiers Agreement of 2000 established got the kind of credit that it deserved. That is not only because the legal matters that they dealt with were too complex to be widely accessible but also that the results were overridden by political decisions, the wisdom of which is now questioned.

A neutral arbitral boundary tribunal composed of international experts could potentially get to the bottom of all the historic claims to each contested territory in an adversarial legal proceeding. This would allow each side to submit evidence and decide under applicable laws that the parties would identify in a constitutive document.

This might seem premature, and even placing the proverbial cart in front of the horse, as Tigray is still a part of the Federal Democratic Republic of Ethiopia and its destiny unknown. But that concern underappreciates Tigray’s chronic and multi-dimensional problem and how it has gotten to where it is today. Whether it stays within the Federation or declares independence, to avoid the devastation of the pursuit of an impossible permanent military solution, all sides must give a legal solution a chance.

The permanent cessation of hostilities and reestablishment of law and order in the region requires a more comprehensive legal solution than the establishment of a boundary tribunal. The legal solution may include the establishment of an arbitral claims tribunal for the purpose of compensation of the victims of gross violations of rights since 1991, including violations of international humanitarian law during the most recent armed conflict. This expansive temporal jurisdiction is not without precedent. A somewhat analogous example of this temporal scope is the Kenyan Truth, Justice and Reconciliation Commission.

The legal determination of historic rights and rendition of legal remedies for victims would not offer a comprehensive solution without a legal solution to Tigray’s current uncomfortable existence within the Ethiopian state.

It would not be unreasonable to suggest that the architects of the 1994 Ethiopian Constitution knew that the time would come for Tigray’s pursuit of independence from Ethiopia.  They inserted Article 39 against the wishes of a considerable cross-section of the Ethiopian society.  It is clear that the then victorious forces considered it as Plan B.  Unprecedented in its formulation and breadth, and profoundly dreaded by the unity camp, it states that: “Every Nation, Nationality, and People in Ethiopia has an unconditional right to self-determination, including the right to secession.”

Procedurally, here is how it happens under section 4 of Article 39:

The right to self-determination, including secession, of every Nation, Nationality, and People shall come into effect:

(a) When a demand for secession has been approved by a two-thirds majority of the members of the Legislative Council of the Nation, Nationality, or People concerned;

(b) When the Federal Government has organized a referendum which must take place within three years from the time it received the concerned council’s decision for secession;

(c) When the demand for secession is supported by a majority vote in the referendum;

(d) When the Federal Government will have transferred its powers to the Council of the Nation, Nationality or People who has voted to secede; and

(e) When the due division of assets is effected in a manner prescribed by law.

This Constitution is still in force. In a way, it cannot be completely dismissed as the victor’s idiosyncrasy in as much as it is a codification of Ethiopia’s own historic dilemmas that those who study Ethiopia would understand. It was clear to observers even back then that it would be improbable that Article 39 would be peacefully invoked and implemented. Having endured the burden of armed conflict in the last eight months, largely because of the exact same types of identity-based power rivalry that led to the armed resistance that culminated in the drafting of the Constitution in the first place, Ethiopia may now take advantage of this provision to see if Tigray wants to remain a part of Ethiopia.

There is no particular obstacle to organizing the votes and referenda. The process itself would redirect the current rage and zeal to fight from the battlefields to the halls of legislatures and courtrooms.  This will be a long process that could be completed over a period of five to ten years.  Interim arrangements could be agreed to in a legal document.

To summarize, the legal solution proposed here includes at least four components that could be debated and developed further in future writings:

  • The unconditional implementation of the Eritrea-Ethiopia Boundary and Claims Commissions decisions,
  • The establishment of an international arbitral boundary tribunal to delimit and demarcate Tigray’s boundaries whether it stays within the Federation or decides to secede.
  • The establishment of an international arbitral claims tribunal for the adjudication of compensation for victims of gross human rights and humanitarian law violations in Ethiopia since 1991, including the recent armed conflict.
  • The resolution of Tigray’s problem through Article 39 of the FDRE Constitution regardless of whether the rest of Ethiopia wants to keep Article 39 in the Constitution after Tigray’s secession.

Finally, the success of all of these proposed national and international legal remedies would require careful textual formulation and serious commitment from the parties backed by considerable international assistance.

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Main photo: The Permanent Court of Arbitration (PCA) in The Hague which organized the Eritrea-Ethiopia Claims Commission; PCA.

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About the author

Mistir Sew

This is a generic byline for all anonymous authors. The anonymity could be because they fear repercussions, as they are not authorized by their employers to express their views publicly, or for other reasons.

15 Comments

  • Marx, let’s examine contents of your comment. You claim Tigray doesn’t want to secede. That may be true or not. What appears to be true though is TPLF does not like Ethiopia. It did not like Ethiopia when it ruled Ethiopia. To TPLF, rest of Ethiopia was an occupied enemy land. Now, most Ethiopians know that Tigreans are our true brothers and sisters. Many of us have Tigrean ancestry as well. Who was the defense minister during Mengistu era? Who was Fessha Desta? Were not many members of the Derg regime of Tigrean and Oromo background? Why does TPLF always pit one ethnic group against another.

    In 2018, after the resignation of the then PM Hailemariam Desalegn, Abiy Ahmed through an internal process to which Ethiopian people were just spectators, became the chairman of EPRDF. There was a vote which he won, in which Debre Tsion participated. Ethiopians then said ok let’s move on now that you EPRDF members have selected Abiy Ahmed as the interim PM till the next election. Then what happened? Mass displacements, attempted assassinations, chaos and instability everywhere except in Tigray. Who financed these activities? It is interesting now that the war broke out, the rest of Ethiopia is relatively more peaceful. What is happening?

    You said TPLF did not want to join PP and the election they carried in November should have been left alone. But is that what happened? No. After the illegal November election, illegal because it violated the supremacy of the federal law, Debra Tsion started to delegitimize PM Abiy. You remember that after “September there will be no government” talk? Plus Debre Tsion was constantly threatening the Amhara region and in 2019 a bloody chaos ensued. Precious lives were lost. All these were prelude to the November attack against the Northern command. In all these trials and tribulations, the Ethiopian people were displaced, lost life and could not live in peace.

    The nation has complicated problems. These problems can be solved through data driven, non political technocratic force. Ethiopia cannot be held hostage to the constant fights between cadres of political parties. Enough is enough.

    To get out of the current impasse, the following people must surrender to the federal government,
    1)Debretsion, 2)Tsadikan, 3)Getachew Reda, and all persons that drafted and orchestrated the November attack. This will ensure commitment to the supremacy of the federal government under which the regional government operates. The TPLF name must be dissolved. Many politicians and activists from Tigray have argued that the corruption charges levied were unfairly targeting Tigreans only, thus they should be given a chance to report other officials from any region involved to be held accountable as well
    A genuine cease fire should be agreed upon, and a reconciliation committee set up to draft the move forward.

  • This article assumes that Tigray wants to secede. That the war is some how about that desire. Not so.

    All the major reasons for war are about autonomy, financial things, etc. The TPLF refused to join PP, which made Abiy mad. But TPLF and anyone else have the right to join or not join PP. The TPLF run a local election and this could have been accepted and left at that but it became an issue for no good reason. It will not be the end of the world if TPLF administers Tigray. TPLF refused to hand over suspects, this was legally speaking problematic, the regions should respect the federal government. Then the ‘peace’ with Eritrea is a federal area, but the borders concern Tigrayan communities. Abiy could/should have consulted them on the implementation of the agreement.

    These are the things that led to heated arguments and suspicions and war. But, non of them is about separation. The Welqait issue also is not about separation. So, why is the paper focused on separation issue?

    Now, yes the war has made many Tigrayans support independence. During the Tigray election the party that advocated independence received less that one percent of the vote. Now that percentage is higher. How high is not clear. My guess is that majority of Tigrayans will live with true federation and autonomy just fine.

  • I see a nation breathing. Eating, living, and thinking HATE. and not FORGIVENESS or Tolerance or consequences of the current trend. You cannot fix 27 years of misdeed through HATE and REVENGE. Only through reflection and learing and forgiveness….

  • Corrections in the last post: Shia should read Shoa ( auto correct:)), and Harar is actually in the Oromia region according to the ethno federalist regional structure.

    • True, the neglect and strangulation economically and developmentally of Dire dewa and other big cities was deliberate or by design on the part of Woayan policy intuition. It had nothing to do with real equitable federalism, ethnic or otherwise I believe.. the objective of their policy action had many folds. First ,they wanted to marginalize these places demographically so ithey cut apart the two close big cities of Harar and DD in the east with the same ethnic composition which could have been designed together as one special zone . This made possible that few hundreds of Tigrain emigre peasants to exploit nearly two population over thirty years. Second , I susodct Woyane had inferiotity complex from other developed uban centers and thus they made every effort to siphon off any sound developmwntal funds and diverted evety penny to their regional villages or pockets in order to catch up or even surpass the rest . Third ,there was both informal and economy sector activities going in the east that the illiterate and upstarts woyanes of the so-called generals monopolized. Contrabands and other elicit merchandise crossing from borders, some owned by themselves while some were confiscated from others and shot victims on the spot, were all collected by these thugs and no single dollar invested back into the communities or cities. Moreover , one must remember to a close of thousand transit trucks owned and operated by Tigrains that operated the route between Dijouti and Ethiopian at the expense of the old rail line over twenty years that also cut off Diredewa lifeline.of commerce activities and revenue. Worse yet, all these commercial trucks were bought by the government from the money of the commcial bank of Ethiopia. I doubt if they paid a dollar back on those loans.

  • Entire people in Ethiopia, now need to recollect heads and start internal reflections and begin to ask some fundamental questions.
    1) did 27 years of ethnocentric policies glorifying one ethnic group, comprising only 6% of the population, ceding entire army control, economic control benefit Ethiopia at all?
    2) Somalia region larger in size, more in population than the Tigray region, virtually received nothing for economic development, roads etc, in the past 27 years. Is that what Federalism is about? The budget allocated to Somalia region speaks volumes about the failures of the ethnic federalist system.
    3) Lets take the Somalia region as an example. Should the budget for a region be based on its ethnic composition as percentage of the nation or the the total number of all people living in a given region? In addition to Somalis, there are also other groups i.e. Oromos, Amharas etc living in the Somali region. According to TPLF, Somali region should receive only 6% of the federal budget (it did not even receive that), smaller than what Tigrai received in 27 years. In reality, there are probably 7 or 8 million, people living in that region, and should have received probably around 10%, if the system had been fair. The proof for this discrepancy, can be clearly seen in the degradation of the city of Dire Dawa, previously one of the more vibrant, relatively more industrialized metropolitan city, with multilingual and diverse culture. The ethno-federalist system destroyed that, destroyed the industries of Dire Dawa. Is Kinoto still produced there? What happened the beautiful Harar city, which at one point produced some of the beast fruits (Harar bananas, guava, papaya, etc.) in the nation. What happened to the Harare merchants, shop owners, and relatively more affluent beautiful cultures in that area? Why has the infrastructure there been so degraded and outdated as if stuck to 30 or 40 years ago??????

    In the Wollo region, centuries of intermarriage, migration and cultural mixing between the Oromos, Amharas,Tigreans and others have resulted in a unique beautiful group of people with Moslem and Christian ancestry, who have coexisted peacefully together for some 300 plus years. Should we now continue the division of ethnocentric elites or let them be?

    In the Northern Oromia ( former province of Shia), some 300 years of migration and intermarriage have resulted in another beautiful group of people who were also part and leading members of the Emperor Menilik and Emperor Haile Selassie governments, occupying key government positions. Should we leave these people to be themselves or fragment them to satisfy the quest of the ethnocentric elites?

    What about the Tigrayan brothers and sisters who lived next to their Amhara brothers and sisters, intermarried, interdependent through thick and thin. Should they be separated too?

    The past centuries also have had migration of North, South, West and East. Should we restrict that and confine people to live in one region only?

    It is high time, we calm down and ask what we are doing as people to reach these low points. Masses have migrated to live as refugees, to be mistreated, to be abused, and devalued. Was Ethiopia, not big enough to accommodate any one of her children. Will the current generation let live everybody else as one lives one’s life. Make a little room, be a little kinder, a little bit more gentler and accommodating, so others can too breathe in relief?

  • With or without legalese, let them succeeded if they desire to do so. I. Personally could care less like many others. Like other regions in the northern region.of the country, they are always bedeviled by poverty, greed, artogance, power thrust, political intrigue and ethnic racism or muslim hatred ,,etc . I’m not necessary saying Amharas would be better but aleast they have been interacting and intermarring among the diverse nations over hundreds that changed their attitudes little bit. I wonder how an impoverished, smal region with no natural resounces, virtually landlocked and incessant and chronic feud with its neighbors is going to make it. When one reflects what they have been doiing over twenty seven in terms of resounce plundering, nepotism, abuse of power and single ethnic supremacist mantra is textbook example of how they should never be trusted again. If they are willing to live and let live others would have been the better option. but a constant political posturing and warmongering became their trademarks time and again. So others would wise up sooner later and would say it no more to it.

  • With or without legalese, them succeeded if they desire to do so. I. Personally could care like many others. Like other g et soups in the northern region.of the country, they are always bedeviled by poverty, greed, artogance, power thrust, political intrigue and ethnic racism or muslim hatred ,,etc . I’m not necessary saying Ambsra would be better but least theygsve been interacting and intermarring among the diverse nations over hundreds that changed their attitudes little bit. I wonder how. an impoverished, smal region with no natural resounces, virtually landlocked and incessant feud with its neighbor going to make it. When one reflects whah they have been doiing over twenty seven in terms of resounce plundering, nepotism, abuse of power and single ethnic supremacist mantra is textbook example is how they should be never trusted again. If they live and let live others would have been the better option. but constant political posturing and warmongering became their trademarks time and again. So others would wise up sooner later and would say it no more to it.

  • No, confederation is just another unnecessary mess. Tigray can break away as an independent country. The previous commentator claimed more people are agreeing to a separate country called Tigray because they are afraid of war. Nobody is afraid of a ragtag collection of insurrectionists. The sacrifice of a single more Ethiopian life is just not worth it. TPLFites are ideologues. They are die hard Marxist-Leninist remnants of a defunct mantra, and disproven world vision. They have failed to evolve with the times, still stuck in the 1960s. A referendum should be done to determine who among Ethiopians in that region want to belong to the Tigrian only camp or to the all Ethiopian camp. Say 90 % want to secede and 10% want to remain in the Ethiopian camp. The 90% should leave the rest of Ethiopia, travel on their own passport and also be responsible for their entire new country. They will be treated like any other foreigner from then on, simple. Can the Tigrean separatist work on this and expedite the process ASAP?

  • *Sovereign Confederation Nations of 🇪🇹Ethiopia* is the solution. for now, I see lot of people agreeing the idea of Free Tigrey🇻🇳Republic because they afraid to face Tigrey’s war. how about other marginalized Somalis🇬🇶 & Afars🇱🇸.

    Ethiopia🇪🇹Confederation nations should share only *foreign affairs, monetary, immigration* tourism & environment🇪🇹.

    it’s important to change Ethiopia’s🇪🇹name into new one like Horn, Nile, *Kush Republic* because Ethiopia🇪🇹associates oppression, genocide, hunger as weapon, & refugee.
    former Yugoslavia separation was success story for all nations like Croatia🇭🇷Kosovo🇽🇰& some already joined EU🇪🇺. Similarly, Russia🇷🇺is doing better & others 15 new Republics (Kazakhstan🇰🇿)  much better economically & socially peace & happy.

    for that reason, Ethiopia🇪🇹separation of 10 or 15 Republics would bring better developed & peaceful countries themselves & EastAfrica💙.
    My opinion, I prefer, Sovereign Confederation nations of Ethiopia🇪🇹instead disintegrated. However, Ethiopia choices belong to the nations or people.

  • I don’t see how Tigray can be a viable independent state when surrounded by hostile Amharas and Eritreans leaving Tigray landlocked and with no international border.

    The one way ‘Tigray could become an independent country is if the US and the West insist and implement complete economic sanctions on Ethiopia and Eritrea and military intervention on behalf of Tigray. Like for South Sudan. But South Sudan has friendly states to its south.

    The other way Tigray becomes independent is if the Ethiopian state collapses, which means there is no army to defend Tsegede and Wolkiat, and Tigray obtains permenant access to Sudan.

    Or if extreme Oromo nationalists take over the Ethiopian state and withdraw the ENDF from Tsegede and Wolkiat.

  • Addendum:

    The public debt accumulated under the name of Ethiopia currently can be easily calculated.
    Total debt= Debt spent on public projects in Proper Ethiopia (Ethiopia – Tigray) + debt spent on projects
    in Tigray+ debt that is unaccounted for (looted money).

    Total debt to be transferred to new Tigray= Debt spent on projects in Tigray + x% of debt that is unaccounted for (looted money), x represents % of looted money attributed exclusively to members of TPLF and other individuals of the newly formed Tigray country.

  • If secession of Tigray from rest of Ethiopia is finalized, there should be a distinction between Tigrian citizens and Ethiopian citizens as well. These will be two new distinct groups holding different passports so to speak. Tigraians who vote for a new Tigray country should be ready to leave the new proper Ethiopia or comply to live as foreign residents of proper Ethiopia.The accumulated foreign debt over the past three decades should be audited, and money that was stolen, misused or diverted under the name of Ethiopia, should be quantified and transferred as debt of the newly to be formed country of Tigray. I think most Ethiopians will likely agree for this type of final settlement. It is now becoming crystal clear to many Ethiopians, including the unionist camp, it is not worth to sacrifice the meager resources and precious lives of Ethiopians on a group of people that their leaders ie. TPLFites are constantly telling us they don’t want to be called Ethiopians and that they are not Ethiopians. If among the group, there are some that want to remain as brothers and sisters of the rest of Ethiopians, and want to remain as Ethiopians, the motherland is blessed enough to accommodate them as her children and the rest of Ethiopians will live with them together like they have done before.

  • In my view, three of your proposals, except the first one, are impracticable (also impossible). Here is why:

    Regarding the contested boundaries, an intervention of an international tribunal would be a considered had Tigray been an independent or de facto independent state. Unless, since such a tribunal would come to exist on the consent of Ethiopia, the latter won’t choose an international tribunal to resolve an internal matter bypassing its own constitutionally entrenched procedures.

    Your third proposal is difficult (nearly impossible) because partly international human rights and humanitarian laws lack the means/specific mechanisms to compensate victims. You know you would even end up in discrimination if you rely on humanitarian law to identify victims. That’s why often the best mechanism is said to be a transitional justice mechanism than IHL/IHRL.

    Article 39 is no more an option for Tigray unless the federal government recognises the regional election back in September. Since the region doesn’t have a “legitimate” regional council that could make the demand for secession/referendum under the constitutional procedure (as you have restated) there won’t be a legitimate claim for constitutional secession. I don’t also think this procedure would settle all the disputes had it been a possibility.

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