A UN—not AU—commission is needed to investigate the reported war crimes.
As mounting evidence of serious violations of human rights and humanitarian law are coming out, the war in Tigray is in the international spotlight.
The credible reports of human rights organizations such as Amnesty International and Human Rights Watch corroborated by international media indicate that war crimes and crimes against humanity have been committed. More recently, the US Secretary of State’s allegations of ethnic cleansing in Western Tigray also grabbed attention.
Subsequently, the pressure for an independent investigation has become almost unbearable. For many observers, it is now indisputable that the reported atrocities warrant an independent, credible, and prompt international probe to counter impunity and ensure accountability.
Dropping its previous resistance, the Ethiopian government has now expressed its interest in a joint investigation. But, who should conduct such an intricate and indispensable inquiry?
Addis Ababa has proposed the African Union (AU) lead, leaning on the mantra of ‘African solutions for African problems.’ The AU has accepted the invitation and revealed its confidence that its human rights body—the African Commission on Human and Peoples’ Rights (ACHPR)—will deliver.
This, however, is problematic for multiple reasons.
Lack of competence
After the UN Security Council seized the matter, the human rights abuses and humanitarian crisis in Tigray became a threat to global law and order. Therefore, the discussion between Ethiopia and the AU is too narrow, and the UN must be consulted in order to fulfill its mandate to maintain international peace and security.
Furthermore, the bilateral approach casts doubt on the fairness of the initiative. The decision on the investigation, including its forums and modalities, should be inclusive and so involve actors such as the UN and all parties to the conflict.
A credible probe must handle intricate legal, policy, and practical issues. Among other things, it involves gathering and verifying information, creating and recording events, preparing dock-ready pieces of evidence for further investigation or prosecution, recommending measures to redress violations, providing justice and reparation for victims, and holding perpetrators accountable.
However, the ACHPR—a quasi-judicial organ established to promote and protect human rights— has never been involved in a complicated investigation and fact-finding process since its inception in 1987.
For three reasons, the Tigray task is too complicated for the Commission.
First, it lacks the required expertise to conduct a thorough and comprehensive investigation of this scale. Apart from engaging in communication and monitoring roles, the Commission has a dearth of relevant experience.
Second, member states often do not comply with its decisions and recommendations. Even the political organs of the AU—the Assembly and the Executive Council—have paid little attention to the ACHPR and its functions. The Commission usually complains about the inadequacy of budget by the AU and that it is forced to solicit money from other sources. And, most importantly, its decisions and recommendations have never been part of a serious discussion and consideration by either the Assembly or the Executive Council.
Furthermore, the Assembly has never used its power under Article 23(2) of the Constitutive Act of AU to pass serious resolutions such as imposing sanctions on defiant states who are unwilling to comply with the decisions of the Commission.
Third, legal and procedural guidelines are unavailable. And, given the urgency of the situation, a proposal to adopt new rules of procedures, standards, and guidelines would result in a further delay. Most worryingly, where the prosecution process would continue after the completion of the investigation is a very critical jurisdictional question that the AU seems incapable of dealing with.
The absence of a permanent criminal court like the International Criminal Court makes the prosecution process onerous and complicated. Establishing a special or ad hoc court is also a rare experience under the AU system. Even if a special court is established, there is no doubt the jurisdiction will be contested.
The African Court of Justice and Human Rights, which is a combination of human rights and criminal jurisdiction, is yet to enter into action as the establishment protocol failed to garner support. Moreover, even if the court starts functioning, there is an exclusionary provision on the jurisdiction that exempts leaders and states from being charged. Therefore, without resolving this issue, it is highly unlikely that it will ensure justice.
Independence and Impartiality
The fact that the ACHPR special rapporteurs are commissioners appointed from member countries, as opposed to being independent, external experts like UN rapporteurs, casts doubt on the credibility of AU-led investigations.
Furthermore, after the Chair of the AU Commission, Moussa Faki, made the controversial statement that the Ethiopian federal government took legitimate action in Tigray to preserve the country’s unity, a number of Tigrayans, perhaps including victims and their families, question the AU’s independence and impartiality.
What makes the argument stronger is the deafening silence of the AU about the ongoing outrageous human rights and humanitarian law violations. That has eroded the confidence of many Tigrayans in the institution’s impartiality. This may mean that victims and witnesses refuse to cooperate in the investigation, which, in turn, would adversely affect its quality.
Similarly, the AU rights commission, under the chairmanship of the Ethiopian government-nominated Solomon Ayele Dersso, has so far remained almost silent amid credible reports of heinous massacres and horrific gender-based violence at the hands of, primarily, Eritrean troops, Ethiopian soldiers, and Amhara forces.
The only exception was the brief press release in November 2020 confirming the report of the Ethiopian Human Rights Commission—a legally autonomous federal institution—on the Mai Kadra massacre in which criminal culpability was attributed to Tigrayan militia and officials. Since then, the Commission has neither condemned crimes nor demanded an independent investigation. This apparently selective approach casts doubt on its credibility and impartiality.
In conclusion, given the legal, procedural, and credibility concerns, endorsing an AU investigation is inappropriate. Rather, it is the UN that is suited to investigate, primarily as allegations include international crimes and the crisis is seen as a threat to international peace and security, not only involving Eritrea, but also possibly United Arab Emirates drones.
The UN has a wealth of expertise through its Commission of Inquiry and fact-finding missions. Furthermore, it has well-established procedural rules and guidelines for this type of probe and, if necessary, it can refer the case to the International Criminal Court.
Given its experience, the UN Human Rights Council should exclusively establish, by resolution, an international commission of inquiry with the aim of identifying perpetrators and ensuring full accountability. The Office of the UN High Commissioner for Human Rights may provide the necessary support to the commission of inquiry.