By Edward Kahuthia Murimi & Ruwadzano Makumbe
Introduction
The war in Tigray has unleashed untold suffering for the people in the region. According to the reports of the Joint Investigative Team (JIT) of OHCHR and the Ethiopian Human Rights Commission (November 2021) and the International Commission of Human Rights Experts on Ethiopia (ICHREE or ‘the Commission’) (September 2022), the parties to the conflict in Ethiopia have committed serious violations and abuses of international human rights law, international humanitarian law and international refugee law. Both reports indicate that on the one hand, the Ethiopian National Defence Forces (ENDF), Eritrean Defence Forces (EDF), Fano (an irregular Amhara militia) and their allied forces are responsible for extrajudicial killings, rapes, gang rapes and other forms of sexual violence, beatings, pillage, abductions, disappearances and intentionally using starvation of civilians as a method of warfare, among other atrocities. On the other hand, albeit on a comparatively lesser scale, the reports show that the Tigrayan Forces are also responsible for killings, beatings, rape, looting and destruction of property, among others. A joint report by Amnesty International and Human Rights Watch issued in April 2022 corroborated the findings in the JIT report by documenting similar atrocities from their investigations.
International and regional responses to the conflict in Ethiopia have called for investigations and external interventions to facilitate dialogue between the parties. Investigative efforts have been based on the need to gather and collect evidence in order to establish the violations being perpetrated and the liability of the parties involved. In addition to the JIT and the Commission, there is the African Union Commission of Inquiry established in May 2021.
These investigative mechanisms have, in different ways, sought to contribute towards efforts to protect the rights of civilians. Evidence is central to their work and their initial reports published reflect this. The ICHREE has highlighted evidentiary challenges which have limited the scope of its mandate and it is likely that other mechanisms are similarly inhibited. We are of the view that all present and future accountability mechanisms need to seriously reflect on evidentiary issues including the question of standard of proof or degree of certainty to safeguard against impunity on the technicality of insufficient evidence. In this blog post, we dissect the JIT and Commission reports to appreciate how and where evidence of violations was gathered and the standards of proof that the two teams applied to make factual and legal findings. We then make proposals on how on-going and future fact-finding efforts regarding the Tigray conflict could go about the issue of standard of proof, particularly where authorities deliberately place hurdles in the way of evidence gathering.
It is important for us to start by noting that both the JIT and ICHREE reports were informed by similar sources of evidence. These included meetings with relevant stakeholders such as federal and regional government representatives, representatives of UN agencies and NGOs, community groups, medical personnel, among other sources. Both teams also conducted interviews (some confidentially) with victims, survivors, witnesses, and other key interlocutors. They also visited internally displaced persons (IDPs) camps. The ICHREE examined additional digital open source materials including satellite images, print and audio-visual material and an analytical report from the UN Satellite Centre. Accessing evidence was, however, challenging as the Commission noted that the Federal government did not grant it access to any areas outside of Addis Ababa. On its part, the JIT noted that some forms of evidence such as medical records were often impossible to obtain because of lack of timely and specialised medical care available for victims. For victims of sexual violence, the JIT noted barriers surrounding the reporting of such incidents including victims’ trauma, lack of adequate psychological support, victims’ fear of stigma and family pressures.
Lack of Access to Conflict Areas and Approaches to Investigations and Evidence Collection
In July 2022, the Commission requested the Ethiopian government to grant them access to the conflict areas. The government denied the Commission access to any areas outside of Addis Ababa. Whilst this is a common challenge that traditional investigative missions encounter, it interfered with the Commission’s ability to gather and document evidence. Reflecting on the situation in Ethiopia, the UN High Commissioner for Human Rights noted that, ‘an emerging pattern is the growing refusal on the part of an increasing number of member states to grant the human rights mechanisms access either to countries generally, or to specific regions.’ The Commission noted with concern the limitations that lack of access to sites placed on their mandate. As a result, they could not provide an exhaustive record of all the events during the reporting period, nor a full strategy for transitional justice. The Commission thus only provided initial views on mechanisms for justice and accountability.
Credible evidence of human rights violations is the basis for establishing facts and pursuing accountability for violations. This means that it is important for fact-finding missions to have access to evidence of violations before it is distorted, manipulated and tempered with. The Commission acknowledged that lack of access to sites in Ethiopia limited the scope of its work. The observations by the Commission require further scrutiny. First, the mandate of the Commission detailed that it was to build-upon the JIT report, which was an earlier investigation mandate of the conflict in the Tigray region. This also entailed information sharing between the two mandates to reduce the risk of duplicating the other’s work. However, there was poor coordination between the two mandates. The Commission indicated that its request to have access to the JIT’s internal database did not get a timely response. This lack of collaboration has the potential to undermine evidence gathering and in turn the possibility to respect the required standard of proof of evidence.
Second, the Commission highlights that it used digital open source evidence to complement regular types of evidence. This is a relatively ‘new’ type of evidence that requires additional safeguards when relying on it. In some of the cases investigated by the Commission, it relied on satellite imagery and photographs that corroborated witness accounts of attacks. Globally, new technologies are aiding in the consolidation of information and evidence in complex cases of human rights violations. The challenge here is that the Commission does not present a complete picture articulating how the evidence was appraised. Digital open source evidence has inherent limitations such as its volatility to manipulation and its potential to present the single-side to an occurrence. The Commission did not address the possible blind spots that relying on this evidence might entail and how their investigation averted or addressed these blind spots. We suggest that other ongoing and future fact-finding missions address this evidentiary gap in their methodology.
The centrality of standards of proof is well-articulated by Wilkinson who observes that it is appropriate to have a ‘minimum threshold of certainty’ for propositions alleging very serious acts such as forced disappearances, killings and rape. The minimum evidentiary conditions, as he has rightly pointed out, should nonetheless be nuanced with the limitations that fact-finding missions in conflict situations face in scrutinising information in a non-judicial context. We anticipate that the findings from the JIT and Commission and other similar missions are likely to play a key role in the success or failure of any future national or international accountability mechanisms. Such reports have the potential to lay a firm foundation for similar mechanisms or be a missed opportunity, especially because time is of the essence in such exercises and when they are conducted could impact the quality of evidence gathered for accountability purposes. This is an additional incentive to ensuring that evidentiary questions are carefully considered.
Reflections on Standards of Proof
As seen in the JIT report, the Government of Ethiopia contested a key finding (killing of 65 people in Dekala) on the basis that the required standard of proof guiding the fact-finding mission was not met for lack of corroboration of evidence by one witness. Katherine Del Mar has defined the concept of standard of proof or degree of satisfaction (in the context of judicial proceedings) as one that ‘marks a point somewhere along the line between two extremes: a mere conjecture at one end, and absolute certainty at the other. Proof furnished in support of a particular proposition must meet or surpass this point for a judicial finding in favour of the proposition to be made’(Katherine Del Mar, 98).
Both the JIT and Commission teams applied ‘reasonable grounds to believe’ as the standard of proof for the factual and legal findings they make. This standard generally corresponds to the balance of probabilities or preponderance of evidence standard in judicial proceedings. Both teams considered this standard was met ‘when it had obtained a reliable body of information, corroborated with other available material, upon which a reasonable and ordinarily prudent person would have reason to believe that an incident or pattern of conduct occurred’(Commission Report para 17& JIT Report para 10). In addition, the JIT report noted that cases and incidents recorded were ‘based on at least one source of first-hand information assessed as credible, which was independently corroborated by at least two other independent and reliable sources’ (JIT Report, para 11). However, in limited cases, information from a particularly reliable primary source was corroborated by at least one additional independent and reliable source.
We point out here that although the ‘reasonable grounds to believe’ standard is prevalent in fact-finding missions in contexts similar to the conflict in Tigray, there are practical reasons which demand that this standard be lowered in some circumstances. As we have already noted, the Government of Ethiopia is accused of impeding efforts to access parts of Tigray for delivery of humanitarian aid and closure of telecommunications and internet. This by default has not only presented challenges for the concluded or ongoing investigations but could possibly hamper other fact-finding efforts in the future. Lack of access to some cites and documents by domestic and international fact-finders will have negative implications for collection and preservation of evidence as well as meeting the requisite standard of proof, all of which are critical in supporting accountability efforts. Our primary argument, therefore, is that given the well-documented lack of cooperation from the Government of Ethiopia as captured in the two reports, should this not change, any subsequent fact-finding missions with respect to the conflict in Tigray ought to apply a fluctuating standard of proof as part of its methodology. This would essentially mean that the standard is lowered where there is little or no cooperation.
In other words, we suggest that lack of cooperation with investigations and inquiries during the ongoing conflict should be countered with a less stringent standard of proof that still allows collating of information in a comprehensive manner. We further suggest that in appropriate circumstances, fact-finding missions in this conflict should draw negative inferences when deliberately impeded from accessing evidence as well as when they receive no responses or rebuttals from parties adversely mentioned by witnesses and victims. We propose that violations and abuses should be documented on the basis of prima facie evidence or ‘reasonable suspicion’ of what is suspected to have occurred in instances where corroborating or additional evidence is made difficult or impossible to obtain by the lack of government cooperation. A similarly applicable formulation that has been used where a lesser level of evidence is required is ‘reliable and consistent indications tending to show that the incident did happen’. Related to this, we suggest that where evidentiary lacunae are occasioned by the action or inaction of a party to the conflict such as is the case in Tigray, such could to be filled by reliance on digital open source information. Fact-finders should, however, be deliberate in ruling out possible distortions of facts from such information as we pointed out earlier.
Closely related to questions of evidence and standards of proof as discussed above is the important issue of witness protection. Fact-finding missions in contexts similar to the conflict in Tigray have distinguished between ‘primary sources’ of information such as testimonies of victims, witnesses and caregivers and ‘supporting sources’ such as material evidence. Witnesses and victims are often at risk of threats or worse from alleged perpetrators, and while confidentiality and anonymity contribute to protection of witnesses and victims this may not be enough. Boutruche suggests that this is particularly the case where the mandate and competence of a fact-finding body constrains its ability to provide full protection to witnesses and victims. This is further complicated by time-limits of fact-finding bodies and the difficulties of expecting an often-partisan government to offer witness protection. We concur with Boutruche’s proposal that a possible solution is ‘to link the fact-finding mission to permanent institutions that could monitor the situation of involved persons in the long term’ (Theo Boutruche, 119). In this regard, mechanisms led by the African Union could be explored or, where they exist, strengthened, to offer such protection as they come with the advantage of proximity to the situation in Tigray. Our assumption here is that such mechanisms will be well-resourced and fully supported by all relevant stakeholders in the conflict.
Conclusion
The conflict in Ethiopia’s Tigray region is complex and presents key evidentiary challenges that are not only relevant now but for future accountability efforts. We share the same sentiments expressed in the two discussed (and other) reports for immediate cessation of hostilities, violations and abuses of international human rights, humanitarian and refugee law in the conflict in Tigray. We are encouraged by the recent breakthrough in the AU-led peace talks in Pretoria, South Africa where parties to the conflict have agreed on a ‘permanent cessation of hostilities’. While the return to peace is welcomed, to sustain the peace in the long-term, those behind the documented violations must be held accountable and the truth of what happened established. For this accountability to be realised, as this post has sought to demonstrate, domestic and international stakeholders must give serious consideration to the questions of sources of evidence and their credibility, the requisite standard of proof and its flexibility depending on levels of cooperation with fact-finders and preservation of evidence, including protection of victims and witnesses.
References
- Human Rights Council, ‘International Commission of Human Rights Experts on Ethiopia Finds Reasonable Grounds to Believe that the Federal Government Has Committed Crimes against Humanity in Tigray Region and that Tigrayan Forces Have Committed Serious Human Rights Abuses, Some Amounting to War Crimes’, 22 September 2022. Available at https://www.ohchr.org/en/news/2022/09/international-commission-human-rights-experts-ethiopia-finds-reasonable-grounds.
- Katherine Del Mar, ‘The International Court of Justice and standards of proof’ in Karine Bannelier, Theodore Christakis and Sarah Heathcote (eds), The ICJ and the Evolution of International Law The enduring impact of the Corfu Channel case (Routledge 2012)
- Miriam Puttick, ‘Eyes on the Ground: Realizing the potential of civilian-led monitoring in armed conflict’, Report by Ceasefire Centre for Civilian Rights and Minority Rights Group International, July 2017. Available at https://www.ceasefire.org/wp-content/uploads/2017/08/EYES-ON-THE-GROUND-Realizing-the-potential-of-civilian-led-monitoring-Ceasefire-July-2017.pdf.
- OHCHR, ‘Report of the Mapping Exercise documenting the most serious violations of human rights and international humanitarian law committed within the territory of the Democratic Republic of the Congo between March 1993 and June 2003’ (August 2010). Available at https://www.ohchr.org/en/countries/africa/2010-drc-mapping-report
- Report of the International Commission of Human Rights Experts on Ethiopia, A/HRC/51/46, 19 September 2022.
- Stephen Wilkinson, ‘Standards of Proof in International Humanitarian and Human Rights Fact-Finding and Inquiry Missions’. Available at https://www.geneva-academy.ch/joomlatools-files/docman-files/Standards%20of%20Proof%20in%20Fact-Finding.pdf.
- Theo Boutruche, ‘Credible Fact-Finding and Allegations of International Humanitarian Law Violations: Challenges in Theory and Practice’ (2011) 16 J Conflict & Sec L 105.
- UN Office of the High Commissioner for Human Rights, ‘Report of the Ethiopian Human Rights Commission (EHRC)/Office of the United Nations High Commissioner for Human Rights (OHCHR) Joint Investigation into Alleged Violations of International Human Rights, Humanitarian and Refugee Law Committed by all Parties to the Conflict in the Tigray Region of the Federal Democratic Republic of Ethiopia’ [Geneva] : [UN, OHCHR], [3 Nov. 2021].
- “We Will Erase You from This Land” Crimes Against Humanity and Ethnic Cleansing in Ethiopia’s Western Tigray Zone, A joint report by Amnesty International and Human Rights Watch, April 2022. Available at https://www.hrw.org/report/2022/04/06/we-will-erase-you-land/crimes-against-humanity-and-ethnic-cleansing-ethiopias
- Yvonne McDermott, Alexa Koenig and Daragh Murray, ‘Open Source Information’s Blind Spot: Human and Machine Bias in International Criminal Investigations.’ Journal of International Criminal Justice 19 (2021), 85–105 doi:10.1093/jicj/mqab006.