Sunday, September 11, 2016

JUSTICE FOR PROTESTERS BRUTALLY KILLED AND TORTURED IN ETHIOPIA: Some points on the need for prompt international action

Brief Background to the Protests and Extent of Human Rights Violations
It has been about 10 (ten) months since the protests in Ethiopia started. To be exact, protests started in November 2015 in the largest region of Oromia. Though the protests generally have compounded causes, they were triggered by the dispossession of land under the government’s Addis Ababa Integrated Development Master Plan. There were widespread claims that Oromo farmers around Addis Ababa city have been exposed to undue pressure as a result of inadequate compensation for the displacement. At the time, human rights defenders reported, though neither accepted nor effectively denied by the government, that over 400 protests had been killed by the security apparatus using excessive, illegal force. Tens of thousands are arbitrarily arrested, enforced to disappear and tortured.

The protests, however, never stopped. When they got suppressed in one part of the region, they erupted in the other. This occurred simultaneously with other conflicts such as in the Amhara region (the Qimant community identity issue) and the Nuer inter-communal conflict along the border with South Sudan stretching the government’s capacity to put the situation under control. This helped the Oromia protesters to reorganize time after time. To make matters worse for the government, in July 2016 the Oromia protests got a reinforcement from Amhara region again  triggered by land and identity dispute over the Wolqait community. The main dispute here was whether Wolqaits are Amhara or Tigre and whether the land they occupy belongs to Amhara region or Tigray region.

The protests in Amhara region seemed more organized seemingly taking lessons from the earlier (and ongoing) protests in Oromia. They boosted the protests by including civil disobedience (such as refusing to leave their homes) thereby crippling government and business operations.These protests are further reinforced by minority ethnic groups in southern Ethiopia such as the Konso people, who are demanding self-rule, in the gigantic conglomerate: the southern nations, nationalities and peoples region.

The government sponsored brutal killings and torture continued intensified when the Amhara region joined the protests. Human rights defenders have reported that some 500 people were killed and tens of thousands subjected to arbitrary arrest, forced disappearance and torture in this second wave of protests. The conflict is continuing. The number keeps rising.

In connection with these human rights abuses, it is also widely reported that the government even resorted to burning prisons where high value political prisoners are kept. This reportedly happened in various prisons in Amhara region and recently in Addis Ababa’s infamous Qilinto maximum security prison. The story behind these burnings is that high value political prisoners will be shot while trying to survive the inferno or they will be burned to ashes and the government will not take the blame. It could also be taken as a scare tactic for those protesting; so they know that that could be their fate as well.

What does the Ethiopian Constitution Provide?
All of these brutalities are taking place when the country's constitution clearly declares under Art. 10 that “human rights and freedoms, emanating from the nature of mankind, are inviolable and inalienable”, and that “human and democratic rights of citizens and peoples shall be respected.” The constitution ensures everyone’s right to freedom of expression without any interference (Art 29(2)) and guarantees the right of assembly, demonstration and petition under Art. 30 as follows:

“1. Everyone has the right to assemble and to demonstrate together with others peaceably and unarmed, and to petition. Appropriate regulations may be made in the interest of public convenience relating to the location of open-air meetings and the route of movement of demonstrators or, for the protection of democratic rights, public morality and peace during such a meeting or demonstration.
2. This right does not exempt from liability under laws enacted to protect the well-being of the youth or the honour and reputation of individuals, and laws prohibiting any propaganda for war and any public expression of opinions intended to injure human dignity.”

As admitted by the government itself, only a very small part of the protests were to be termed “not peaceful”, maybe because some negative elements might have infiltrated into the peaceful protests (it should be underscored that the protests are not organized by any political party; they take the form of popular uprising). Other than that, none of the above exceptions/exclusions were observed and the vast majority of the protests were peaceful. The only problem is that the demonstrations were not authorized; and this is not because of the failure of the protesters but because of the unwillingness of the government to give the permit. Although the constitution is very clear about the cardinal right to protest/demonstrate, the government invariably denies exercise of it. This is the bone of contention.

That being so, as referred to above, the constitution guarantees citizens, among others, the inviolable and inalienable right to life, security of person and liberty (see Art. 14). These rights are elaborated in various articles of the constitution as follows:

   Right to Life (Art. 15): Every person has the right to life. No person may be deprived of his life except as a punishment for a serious criminal offence determined by law.

   The Right of the Security of Person (Art. 16): Every one has the right to protection against bodily harm.

   Right to Liberty (Art. 17): No one shall be deprived of his or her liberty except on such grounds and in accordance with such procedure as are established by law. No person may be subjected to arbitrary arrest, and no person may be detained without a charge or conviction against him.

It should be clear from the above that the killings, bodily injuries and arbitrary arrests as well as tortures are in violation of the constitutional guarantees provided to citizens. Citizens have the right to oppose/protest and demonstrate against the government, surely within the law. But that they are denied that right should not entail further denial of their inalienable rights to life, security of their person and personal liberty. Anyone found carrying arms or using it illegally should be prosecuted in accordance with the law, not just summarily executed. That protesters were found in violation of the applicable rules doesn't mean that they are to be subjected to all manner of cruelty.

As stipulated in the constitution, everyone has the right to protection against cruel, inhuman or degrading treatment or punishment and the right to respect for his human dignity as per Art. 18(1) and Art. 24(1). This clearly means that the abuses and cruelties observed during the protests are illegal and those who ordered and did those should be held accountable.

It should be noted that, as per Art. 13(1) of the constitution, all federal and state legislative, executive and judicial organs at all levels shall have the responsibility and duty to respect and enforce these rights. No one can order human rights abuses and go free; and no one can execute unlawful orders and expect to rely on superior order. This is further provided for in detail in the Criminal Code of Ethiopia.

In democracies where there is respect for rule of law, this would have been more than enough for heads to role and we would have seen several dismissals and resignations. In Ethiopia, officials who are responsible for these heinous crimes are seen ridiculing touting the nation to be more enraged. It’s unfortunate, indeed.
How Does the Constitution Interlock with International Human Rights Standards?
The Ethiopian constitution is very clear when it comes to how perpetrators should be held accountable under international human rights conventions to which the country is party. Art. 13(2) states that:

“The fundamental rights and freedoms… shall be interpreted in a manner conforming to the principles of the Universal Declaration of Human Rights, International Covenants on Human Rights and International instruments adopted by Ethiopia.”

From the get go, the constitution acknowledges that Ethiopia adopts the Universal Declaration of Human Rights, which is the fountainhead for all the other human rights treaties, simply because it has customary international law status. Besides the UDHR, Ethiopia is party to international human rights treaties such as the International Covenant on Civil and Political Rights (1966), the African Charter on Human and People’s Rights (1981) as well as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984).

It should be underscored that all the fundamental rights and freedoms in the Ethiopian constitution are borrowed, with some modifications here and there, from, among others, these basic international human rights standards on civil and political rights. What is very sad is that they are not respected and by implication, international human rights standards and obligations are being undermined and violated.

What type of Crime is being Perpetrated: Crimes Against Humanity?
As referred to above, the government has killed hundreds of peaceful protesters, arrested tens of thousands arbitrarily and treated them with torture or other cruel, inhuman or degrading treatment or punishment. To state the obvious, the killings are widespread and systematic. Put differently, citizens are manifestly denied their rights, stifled for a quarter-century, and when they rose to demand it through peaceful demonstrations, they are killed en mass to pave way for extension of tenure of the government.

Instead of taking responsibility and remedying the shortcomings the public is demanding, the government is doing whatever it takes to cling to power. In the process, massive human rights violations are taking place day after day. When human rights violations happen at this scale, they are referred to as crimes against humanity. Among various authoritative sources on crimes against humanity, Art. 7(1) of the Rome Statute of International Criminal Court (1998) defines crimes against humanity as follows:

“For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
   deportation or forcible transfer of population;
   imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
   rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
   persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
   enforced disappearance of persons;
   the crime of apartheid; and
   other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”

In keeping with this, Art. 28(1) of the Ethiopian constitution, condemns crimes against humanity and states:

“Criminal liability of persons who commit crimes against humanity, so defined by international agreements ratified by Ethiopia and by other laws of Ethiopia, such as genocide, summary executions, forcible disappearances or torture shall not be barred by statute of limitation. Such offences may not be commuted by amnesty or pardon of the legislature or any other state organ.”

This provision, in conjunction with the Criminal Code, was invoked during the criminal trials of former Dergue officials for their roles in Red Terror and other egregious human rights violations. There is no reason this should not be invoked against those government officials who are currently ordering and participating in perpetration of such crimes against their electorate. Their subordinates are as well culpable.

If Art. 13(1) of the constitution about accountability is to be enforced, this should be the starting point. If not, then this is further proof that the constitution is just a farce to be used only by the government when it wishes to defend its tenure. Note that the main argument raised by the government to justify the brutal crackdown is defense of the constitutional order. This is a clear case of double standard and selective application of laws to favor only the government.

Any Effort by AU, UN and Donor Countries to Stop this Mayhem?
As compiled in a joint letter written by dozens of human rights defenders to the UN Human Rights Council on 8 September 2016, there is little that has been done so far to stop the government from killing its citizens in violation of the constitution and its legal obligations under international human rights law. The United Nations, the African Union and their respective institutions mandated to promote and protect human rights standards globally and regionally have done too little to rein the situation.

The UN Human Rights Council and its its specialized rapporteurs should have been on top of the situation like yesterday.

The African Union and its African Commission on Human and People’s Rights with the mandate to oversee the practice of human rights in the continent and promote human rights have done next to nothing. The only thing they have done so far is issuance of very weak press releases begging for restraint, which has not materialized. The donor countries that are investing billions of dollars on Ethiopia every year are not exerting due pressure. Understandably, they have their own individualized interests and it is difficult to expect much from them but they can definitely contribute positively. It is weapons bought and trainings given using their tax payer’s money that are being used to violate human rights in an egregious manner.

Nonetheless, international human rights institutions such as those of the UN and the AU have specific mandates and duty to promote and protect human rights and they are expected to accomplish that. They have the duty to protect Ethiopians from the murderous regime and put pressure on it to promote democratic practices in the country.

The Need for Prompt Action
Given the length of the time taken by the conflict; the number of people killed, arbitrarily arrested and forced to disappear; the number of times inhumane and substandard treatments observed in prisons (which goes to the extent of burning them to exterminate opponents); and the widespread nature of the protests, it would be cogent for the intentional community to promptly intervene to stop the rampant abuse of human rights and support lasting solution to the conflict.

Obviously, the government has already indicated, to the demands of the UN specialized rapporteurs on human rights to investigate the situation, that it will utilize the defense of non-intervention in domestic affairs under international law. However, it is evident from what has transpired over the last several months that the government was unable to handle it internally and based on the laws. It has resorted to the use of excessive force and systematic killings that further aggravated the conflict and eroded the confidence of the pubic.

Awaiting for the government to put the conflict under control in manifest violation of international human rights obligations is unhelpful. Considering the drummings of war propaganda by the TPLF “old guard” lately, the bloodshed in the country is likely to continue unabated and the conflict will only continue to get further complicated.

To prevent this, the AU in particular has the right to intervene in a Member State in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity (see Art. 4(h) of the Constitutive Act (2000)). Ethiopia being a founding Member and crimes against humanity are being committed, this can be easily invoked so that the Peace and Security Council takes up the matter for investigation.

It should pointed out that the government seems to be abusing its positions in international fora such as membership of the UN Human Rights Council, membership (prospective) in the UN Security Council and being host to the AU and most of its institutions. This should not be allowed to continue. Rather, these facts should compel the government to uphold and respect human rights to the highest possible standards. How can a government which brutally violates human rights at home be expected to promote them internationally? How can others be expected to follow any decision passed by such members? If not promptly addressed, this will have far-reaching consequences.

Thus, the UN and AU’s specifically mandated human rights institutions such as the specialized rapporteurs and the African Commission on Human and People’s Rights respectively should be authorized to independently investigate the crimes against humanity and torture being committed by the government and its security forces. Based on that, the modalities for ensuring how perpetrators are to be brought to justice will be worked out. As  a matter of priority, however, killings have to stop.


The author can be reached via email:

No comments:

Blog Archive