Africa: Ethiopia’s Proposed Special Prosecutors – History Repeating Itself?

Ethiopia’s new transitional justice policy, approved last month by its cabinet, shows how the country is taking concrete steps to deal with its abusive past.

The policy’s provisions include the establishment of 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 Experts’ Working Group on Transitional Justice.

Although the group advocated significant involvement of international experts as co-prosecutors and investigators, the final policy limits their roles to advisory and capacity-building activities.

The SPO is similar to the one created in 1992 to deal with the crimes of the Dergue regime (1974-91). Sources say the Council of Ministers quickly approved proposals for the new SPO, 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. 1992 SPO, active until 2010, the epitome of “conqueror’s justice”. It prosecuted only Dergue regime members and associates, and did not address allegations of violence and atrocities committed by other groups, such as the Tigray People’s Liberation Front (TPLF), the Oromo Liberation Front, and the Ethiopian People’s Revolutionary Party.

Ostensibly to prevent the involvement of prominent warring groups like the TPLF, the SPO largely avoided prosecuting aid abuse and war crimes, except for a single case of aerial bombing of places like Hawzen in Tigray. 1992 The SPO was designed to be a partial institution accountable to the transitional government of the Prime Minister of Ethiopia at the time. It lacked independence, expertise and funding.

In terms of resources and expertise, the 1992 SPO paled in comparison to global counterparts such as the International Criminal Tribunal for Rwanda (ICTR). One commentator said that comparing the two was “like trying to compare the weight of an elephant to the weight of a mouse, the scales tipped heavily in favor 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 that 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 offenses during the civil war, in detention centers and torture chambers.

The SPO lacked an intelligence-led investigative strategy and failed to secure cooperation locally and internationally. Almost half of its defendants (2,188 of 5,119) were tried in absentia. Some were in Ethiopia but were not arrested or had died; while others fled the country to unknown whereabouts. During its entire operation, SPO managed only one delivery. Melaku Tefera, the ‘Butcher of Gondar’, was extradited from Djibouti in 1994 and convicted of genocide.

Deficiencies that affected the 1992 SPO continue to affect regular investigative and prosecution services today. These institutions lack public trust and still need to be thoroughly reformed and equipped. Planned investigation and lustration processes have yet to be implemented.

Regardless, the policy states that the future SPO will cooperate with the General Prosecutor’s Office. Cooperation is positive, but must be treated with care. Law enforcement members may be implicated in crimes within the purview of the SPO – meaning that cooperation can undermine the accountability process.

Although the prosecutor’s office has handled genocide cases before, often suboptimally, 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 are not yet prohibited in Ethiopian law.

The task of establishing the new SPO will be complex. Compared to the office in 1992, which dealt with crimes committed over 17 years, the incoming SPO will tackle more atrocities spanning three decades since 1995.

Adding to the complexity, Ethiopia’s post-1995 conflict landscape has evolved significantly to include various conflicts beyond the government-rebel dynamics of the Dergue era. Also, unlike his predecessor, the incoming SPO is expected to prosecute atrocities committed by foreign forces, especially Eritrean forces during the recent war in Tigray.

In addition, while in 1992 the SPO initiated new investigations into crimes committed during the Dergue era, the new SPO will inherit many investigations carried out by the Inter-Ministerial Task Force, the General Prosecutor, the Ethiopian Human Rights Commission and regional bodies in Tigray and Amhara. These studies are often criticized as biased and incomplete, presenting challenges in integrating existing findings and excluding compromised experts.

The future SPO will be Ethiopia’s most important institution in terms of criminal accountability. No independent commission of inquiry has been established to investigate Ethiopia’s past crimes, and the judicial system does not provide for investigative judges or magistrates. Without these, the SPO will exercise significant discretion in setting prosecutorial priorities – determining who should or should not be prosecuted, what crimes and situations should be prosecuted, and a timeline for the process.

Overall, the complexity and diversity of situations and perpetrators will make the task daunting. Complete independence, impartiality, financial autonomy and adequate staffing are essential to ensure that the SPO avoids the precedent of victor’s justice and a suboptimal process that does not comply with international standards.

The current policy lacks explicit guarantees of independence and impartiality for the SPO, especially when 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 rigorous investigative processes for Special Bench judges, it has no corresponding provisions for SPO prosecutors and investigators. The Special Bench will answer to the Supreme Court and Parliament, but the policy does not specify to whom the SPO will be accountable.

Legislation enabling the implementation of the policy and the SPO could include guarantees of independence and impartiality. This will ensure that the proposed special prosecution does not perpetuate old patterns.

Tadesse Simie Metekia, Senior Researcher, Rule of Law, ISS Addis Ababa

Temesgen Lapiso Doile, Former Director General of Prosecution of Organized and Transnational Crime, Directorate General of Ministry of Justice of Ethiopia