December 30, 2021
Why is the UN Human Rights Council failing Ethiopia? understanding the content and context of the special session
By Getahun Worku
There is a serious misunderstanding and antagonism recently observed between Ethiopia, the founding member of the UN, and UN international bodies, in interpreting the conflict that erupted since November 3, 2021 in the northern part of Ethiopia. The cause of the conflict is uncontested. TPLF (Tigray Peoples’ Liberation Front) started the conflict by cowardly attacking the northern command of the Ethiopian Military. – Advertisement –
Following the popular opposition in Ethiopia, dominated by the Oromo and Amhara youth from 2016 to 2018, TPLF-Led EPRDF government decided to reform its leadership. EPRDF chose Abiy Ahmed as Prime Minister in April 2018 and this has changed the political landscape in the Country a lot. The release of opposition leaders, peace deal with Eritrea, establishment of the Prosperity Party, which TPLF decided not to join, amongst others, have been some of the facts which fractures TPLF from the Central politics and pushes it away from Addis Ababa. Despite very few cooperation between the Federal and Tigray Regional State, most of the time during the reform period, TPLF has established a strong defacto state in Tigray, including conducting a regional election during the COVID-19 Pandemic, which broaden the difference between Tigray and Abiy led Federal Government.
In the last three years, TPLF, which once dominated the leadership of the ruling party (EPRDF) in its 30 years’ reign, had been concentrated in Mekelle, the capital city of the Tigray Region, preparing for the war and planning to illegally retake its power lost by Ethiopian people. Conflict broke out by the TPLF attack, which the Federal Government in return defended and attacked TPLF forces as a law enforcement mission. TPLF has been not only declared as a terrorist group by the Ethiopian Parliament but it has also recently been engaged in committing various terrorist attacks on Amhara and Afar Regional states, following the declaration of a unilateral ceasefire of the eight months of deadly conflict by the Federal Government on 28 June, 2021.
Despite this, the US and the West have shown systematic stance by favoring the terrorist group and taking measures against the constitutionally elected government of Ethiopia. They have been sympathetic to the terrorist group than the people of Ethiopia who have suffered a lot. US and its allies have brought an unfounded claim before the UN security Council without any success and also took measures including economic sanctions against Ethiopia, such as excluding Ethiopia from the African Growth and Opportunity Act, AGOA pact, which was mainly helpful to the thousands of Ethiopian poor women and girls.
The recent measures of the global north against Ethiopia, took another form by directing the case to the UN Human Rights Council (HRC), without any convincing ground and with no support whatsoever from a single African state. Ethiopia and most African states consider the recent trends in the UN system as having a political motive and an expression of the neocolonialism stance advocated by the US. The #NoMore move initiated by Ethiopians and accepted by many nations all over the world has called for non-intervention on internal matters, a fair representation of Africa, which has over 1.3 billion populations, in the UN Security Council and also ignited the debate for the politicization of the UN system including the HRC. The Council, which was founded to play an active role in the protection of human rights, by correcting the pitfalls of its predecessor, the UN Human Rights Commission, has in a number of occasions failed to live up to the expected standard and all the promises and hopes from this young Council seems to be falling again.
The HRC in its special session held on December 17, 2021, endorsed a resolution to establish an international commission of human rights experts on Ethiopia. The resolution was supported by 21 countries with 15 against and 11 abstaining. According to the resolution, the new probe should comprise three human rights experts, and the experts are mandated to investigate alleged violations of human rights, humanitarian and refugee law committed by all parties to the conflict in Tigray. Ethiopia has expressed its opposition to the special session of the Council and accused the Geneva-based body for not condemning “the pillage, destruction of property, rape and sexual abuse, use of child soldiers by these rebel forces, the TPLF”. Ethiopia boldly declared that it will not cooperate with the established mechanism imposed upon it against its consent. Reuters described Ethiopia’s response as “No more to double standards; no more to unilateral coercive measures; and no more to meddling in internal affairs under the pretext of human rights.”
One of the basic reasons Ethiopia argues for its rejection of the initiation of the special session of the HRC was the fact that the human rights violations following the conflict in Tigray has been duly investigated by the joint mission of the Ethiopian Human rights Commission (EHRC) and the Office of the United Nations High Commissioner for Human Rights (OHCHR). The Joint investigation took place between 16 May to 30 August 2021 and a detailed comprehensive report of 156 pages was produced and made public on 3 November 2021. The report covers each type of human rights violations, substantiates the violations with evidence, establishes the accountability of the government forces, the Eritrean defense force and the Tigray special force and it further calls for additional investigation for establishing gross violations like crimes against humanity.
The TPLF on the other hand accepted the HRC special session resolution, as the special session was held exactly at the same time that it had been expelled by the Ethiopian forces from the occupied territories of Amhara and Afar. It expressed through its spokesperson supporting the decision and promised to cooperate with the International Commission of Human Rights Experts on Ethiopia as it undertakes its independent investigation. TPLF rejected the joint investigation of the human rights violations undertaken by the Ethiopian Human rights Commission and the UN office of Human rights, which conclusively established the violations made by the rebel group. Thus, TPLF’s support for the Council’s decision this time is either on account of a promise to look for a different finding manipulating the facts or with a hope to get the attention of the international community. All in all, the special session of the Council has raised a number of issues for public debates including its mandates, effectiveness, independence and its (non)complementarity with national human rights institutions. A discussion is worth relevant to reach at an objective assessment.
The HRC: its establishment and working rules
The UN Human Rights Council (HRC) is the main UN body dealing with human rights questions. It was established by the General Assembly resolution 60/251, in 2006 replacing the UN commission for Human Rights. Its 47 members are elected by and from the General Assembly for up to two to three-year terms. According to its mandate, the HRC is responsible for the promotion and protection of all human rights around the globe. The allocation of seats is organized along regional groups – Africa, Asia, Latin America and the Caribbean (GRULAC), East Europe and the Western Europe and Others Group (WEOG) – who still coordinate their actions on issues of common concern.
The Council conducts its substantive work in Regular Sessions and Special Sessions. Regular Sessions are held no fewer than three times a year, usually in March, June, and September. The agenda and program of work for each Session are established with respect to any adopted Council resolutions and in consultation with Member States. Regular Sessions include the presentation of human rights reports and interactive dialogues with Special Procedure mandate holders or Member States, panel discussions and debates on a wide range of human rights issues, and consideration of Universal Periodic Review reports.
Council Special Sessions address urgent human rights situations arising between Regular Sessions and may be called at the request of any Council Member State with the support of at least one third of the Council membership. Having a narrower remit than Regular Sessions, Special Sessions usually occupy a few days, with programs of work focused on the discussion of the urgent human rights situation raised and deliberations around the concluding resolution to be adopted by the Council.
HRC Mandates and Functions
The Council’s mandate is to promote “universal respect for the protection of all human rights and fundamental freedoms for all” and “address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon.”
The Council serves as a forum for dialogue among States, with input from other stakeholders. As a result of its discussions, the Council may issue resolutions calling on States to take specific actions or uphold certain principles, or it may create mechanisms to investigate or monitor questions of concern.
The Human Rights Council has created or renewed the mandates of various “special procedures.” The special procedures are experts appointed to monitor human rights around priority themes or in specific countries with serious human rights problems. The special procedures may be individual experts (“special rapporteurs” or “independent experts”) or working groups.
The Council also manages the Universal Periodic Review, a process through which each UN Member State’s overall human rights record is reviewed.
In addition, the Council receives complaints alleging patterns of human rights violations, which are considered by the Working Group on Communications and may be referred to the Working Group on Situations. The Working Group on Situations reports substantiated claims of consistent patterns of gross violations to the Council and makes recommendations for action.
The experiences of the HRC in its 15 years’ work
Many Human rights scholars agree that there have been some successes of the HRC in its 15 Years life time. The Universal Periodic Review (UPR) has functioned well as a review mechanism. UPR is the process where all member states of the UN are reviewed in their relation to human rights. It was established in 2008. The Special Procedures have grown in strength and influence. The special procedures are experts who independently investigate and report on human rights situations in countries. New mandates have been created to address important issues such as the right to privacy and the elimination of discrimination against women. Important new standards have been adopted and are starting to be used, such as the “Guiding Principles on business and human rights”. Informal normative development has fleshed out existing rights, such as the rights to water and sanitation. Emergencies have been addressed in special sessions. Council initiatives have contributed to accountability efforts in countries ranging from Côte d’Ivoire to Sri Lanka to North Korea.
Yet, the HRC has been criticized for failing to live up to its aspirations of human rights protection and promotion for all. We can list some. Too many serious human rights violations go unaddressed. Many acute and chronic human rights situations receive little or inadequate attention. Many avoidable emergencies are not avoided. Accountability for violations is severely limited. Too many decisions and recommendations go unimplemented. The Council is in danger of becoming a victim of itself. Its current programme of work is a symptom of a malaise that stalks the Council. More statements, more reports, more experts, more panels and more of everything is not a recipe for success.
As it is frequently said, the Human Rights Council is only as strong as its Member States allow it to be. Unless the Council sticks to its mandates and principles, it can be easily manipulated by the powerful states and will remain as a political entity of some groups of states. In this regard, the experience of the US needs a special mention. US, which resisted the establishment of the Council at the beginning, has dedicated all its time during the reign of Barack Obama and thereafter, to influence the functions of the Council, not just merely as an elected member of the council but also as a financier of the UN systems.
The US has always cited human right issues for its own politics and has been proved to be inconsistent in its defense for human rights protection. Its silence in the last 30 years or so in Ethiopia, compared to its current “vested interest” for human rights violations in the last three years can illustrate this. The HRC is one of US influence in this regard and the Council has acted as the best forum for US policy in all its mandates. The US has been tirelessly working to impose its interests on the HRC by various mechanisms including the alignment of council action with existing U.S. foreign policy priorities, influencing the endorsement of the special session for states who are not in line to its policy, most from global south, on human rights violations, using its allies to influence the selection of members to the Council and supporting states which it considers “free” to have their agenda heard in the Council. Lagon and Kaminski have once prepared a thorough recommendation for the US to ensure an effective and efficient UNHRC leadership that advances U.S. interests. The experts in their work “Bolstering the UN Human Rights Council’s Effectiveness, Discussion Paper,” recommended…U.S. leadership is most effective when it is catalytic; that is, when the United States strategically forges multilateral partnerships rather than acts unilaterally. Catalytic leadership combines agenda shaping diplomacy, targeted burden sharing, and interregional cooperation on liberal norms.” A close look at the stories of the special sessions for Syria, Venezuela, North Korea etc. gives us a concrete example in this respect.
Despite its undeniable contributions to standard-setting with regard to human rights, the HRC has come under fire because of the undeniable political – detrimental to its normative – nature of some of its decisions, such as politicization, double-standards and selectivity, which increasingly provoked calls for its reform.
What is wrong with the Council’s resolution in Ethiopia?
The HRC held its special session on Ethiopia with full knowledge and acknowledgement of the previous joint investigation into alleged human rights violations and abuses by EHRC and OHCHR. This investigation, which took place from 16 May to 30 August 2021, has established the violations of human rights by all actors in the conflict. The government of Ethiopia has also established a clear road map and committee to implement the accountability of all parties involved. The HRC has not in any way doubts the findings of this investigation nor the institutional independence and objectivity of the joint investigation. The UN office has duly and actively participated during the investigation from the beginning to the end, in which case another UN agency-HRC cannot be justified to have more standing for the same cause.
What the HRC stated in its resolution rather was that it wants to collect and preserve evidence ‘to identify those responsible’ and ensure accountability for perpetrators, without denying previous investigation and having heard the position of the Ethiopian Government on the special session. This position seems absurd since the previous investigation has clearly established accountability. What is remaining is the actual implementation, which the HRC can request during Ethiopia’s regular report. It can request Ethiopia as to what has been done by the government and its various agencies to realize the findings. Requesting another round of investigation on the other hand plays a non-human rights interest on the fact. It is perhaps a harassment to the government which has been proactive to initiate the investigation, supported the process and accepted the findings. The HRC in its 15 years of experience has not frequently observed such a proactive interest from state parties initiating investigations for human rights violations. That is why many commentators convincingly argue that the interest advocated by the HRC special session and those US allies behind the resolution is a political one and not in any way related to the protection and promotion of human rights. It is another means of political pressure on Ethiopia in addition to the frequent UN Security meetings and US economic sanctions.
On another note, based on existing human rights discourse one can ask if the HRC has any jurisdiction on cases where National Human Rights Institutions like, the EHRC, have already investigated and managed the human rights violations. National Human rights Institutions are unique as they are with a legal mandate to promote and protect human rights domestically in an independent manner. The human rights discourse also gives them a prior and paramount place in the protection of human rights. It is an uncontested fact that promotion and protection of human rights mainly lies on the State Party under discussion. This can be derived from the customary international norm of state Sovereignty and also from the International human rights instruments. Other actors in the international system (be it other states or the UN system) have a subsidiary obligation and they can assume standing only upon request by the State party in whose territory the violation occurred (like the UN office of human rights in Ethiopia case) or there are clear gross human rights violations.
UN HRC in this regard, has committed a number of fallacies in assuming jurisdiction over human rights of the State of Ethiopia. First, it has not been requested for help or investigation by the government of Ethiopia. Ethiopia did not state that it lacks the power or the technical tool to investigate and implement the findings. Since the conflict is taking place within the territories of Ethiopia and is an internal one, Ethiopia should initiate the investigation or express its consent for other bodies to have standing. Second, Ethiopia, exercising its right to self-determination and the principle of sovereignty, has clearly opposed the special session. HRC does not even rule out the objection before it entertains the case. Third, the case has already been managed by the National Human rights Commission and has not yet exhausted its internal processes. HRC’s stance to see the case, despite the EHRC handling it and Ethiopia opposing the jurisdiction, shows another political motive misguided by those states behind supporting the rebel groups in the Ethiopian conflict.
Like the actions of the Security Council, the HRC special session has embarked its session in line with the intensity and status of the internal conflict in Ethiopia. The UN Security Council initiated the Ethiopian Case for its deliberation when evidence came out that the TPLF is losing its grip on the battlefield. No time when TPLF advanced to the Amhara and Afar Regional States has such a move been observed by the international system. No TPLF violations of human rights and destruction of public goods has ever been raised by the UN Security Council even once during the time of the conflict. This seems to also be true for other UN Special Agencies too. UNESCO remained silent when Lalibela was under control by the rebel groups, same with WHO when lootings on hospitals and health posts occurred. The HRC is no exception in this regard since the initiation of the special session coincided with TPLF’s defeat in the battle in the internal conflict. That is why many argued HRC is now more on its politicization of its mandates, moving to execute its financer’s agenda rather on the protection and promotion of human rights.
Countries that are primarily concerned with their diplomatic relationships and economic interests are often influenced when it comes to voting on UN resolutions of all kinds. This is why the US usually uses its veto as a permanent member of the Security Council on resolutions relating to Israel-Palestine. Washington is Israel’s biggest sponsor; it offers political, military and economic protection to defend its aggression and human rights violations. Thus, it is able to maintain strategic control over the region. Consequently, Israel is never held to account for its violations of international laws and conventions. There is no better explanation for Ethiopia’s case than this for the actions of the UN Agencies we see. The US used to classify Ethiopia as an ally in the last thirty years when TPLF was the dominant Party, despite many reports by Amnesty International and others for human rights violations. But now when the US feels that Ethiopia is in its own way to decide its future and distrusts the reformers that its place will not be there any longer, the US started crossing all structures in the UN, be it the Security Council or the HRC. The double standards applied by the US in this regard are very apparent; it claims to be concerned about human rights but chooses not to implement appropriate policies if they do not serve its interests.
What will be the effect of the resolution?
Ethiopia has opposed the HRC special session, the initiation, the process and the resolution. The implication is clear that HRC has no power to initiate any investigation on state parties against their will and if it investigates in any other means, it is not credible and has no effect on Ethiopia. There may be a justification where HRC can decide in its special sessions to assign experts only when it has conclusive facts for the commission of urgent and gross human rights violations, which is not the case for the Ethiopian conflict. In the HRC’s deliberations, no state is reported to raise the issue of the urgency and the fact of gross violation of human rights has been committed. The fact that the EHRC and the OHCHR have already investigated the case proves that there are no urgent issues to investigate. If at all there is an urgent uninvestigated violation, it is TPLF’s violations in Amhara and Afar, which is still within the power of the Ethiopian State.
The Council is a political body; each of its members has different human rights preferences, domestic considerations, and foreign policy priorities. Its decisions, resolutions, and recommendations are not thus legally binding, from the very beginning. The moral justification is also lacking for any further naming and shaming. Not a single African state supported the special session including Sudan, which has not good relationship with Ethiopia over the border issues. It may be the only special session of the Council which is not supported by even a simple majority.
As it is frequently said, the Human Rights Council resolutions are “political expressions” that represent the position of the Council’s members (or the majority of them) on particular issues and situations. Had the investigation been made with the support of the State Party at discussion (Ethiopia), any resolution and even the documents produced can better serve for the promotion and protection of human rights in the country. In the present case, where the HRC passed the resolution for political reasons the resolution cannot be effective. It remains a political reflection of the US and its allies.
Whatever effect it will have on Ethiopia will be a negative one which will aggravate the situation and weaken the Ethiopian state. If the finding of the HRC, in whatever means it is carried out, shows a violation of human rights, then US and its allies will keep imposing economic sanctions on Ethiopia on the basis of the finding. Nevertheless, the experiences of other states proved that economic sanctions have no positive effect for the respect for human rights in the state party under scrutiny.
In conclusion, we can say a few points on the HRC special session on Ethiopia. The procedure was initiated without having justifiable cause. It should have heard and discussed the view of Ethiopia on why the latter stated that there is no need for the special session. It should have objectively assessed why it has embarked on these procedures at this time. The fact of urgency or gross human rights violations should have been generally shown or claimed by state parties or by those who bring the agenda to HRC like the EU. The same investigation has already been carried out by other National and International Agencies like EHRC and the OHCHR. HRC should first establish whether it has jurisdiction over cases which national institutions successfully investigated and are implementing. HRC stance promotes duplication of human rights investigations and in a way diminishes the role of national human rights institutions in the promotion and protection of human rights. It is also tough for the commission of experts assigned to the investigation to get support from the state and non-state actors on Ethiopian territories for the investigation, as the decision of the HRC special session has a political motive. How can they investigate the violations without visiting the sites, without talking to the victims and the witnesses? As some scholars alleged, the experts can do the investigation through telephone or/and virtual meeting with randomly selected citizens, but how much can these means be trusted, especially when compared to the means the Joint Investigation Team employed? Can the finding in any way be different from the previous investigation conducted by the EHRC? are some of the issues which complicates the matter from a practical point of view.
Over the years, the United Nations Human Rights Council has faced severe criticism over its ineffectiveness in solving human rights issues. The Ethiopian case will be one of the precedents for African Nations that the UN system is an empty rhetoric, which basically aims to serve the interest of the US and its allies. The UNHRC is accused of passing resolutions in favor of advancing the US and its allies’ agenda rather than objectively acting as a human rights protector. It is frequently seen ignoring human rights violations of US friendly states every time the council meets. The Council could have used the Ethiopia case as a better opportunity to prove to members and to all African states that it is liberating itself from US dominance by objectively assessing its mandate before holding the special session, especially in cases where the case has already been internally investigated. If the council is endorsing whatever YOU want it to endorse, it will remain a political non-neutral for human rights protection. The Ethiopia case will be one of the proofs in that regard.
One can convincingly argue that HRC should have been very strict and objective treating the Ethiopia case on account of Ethiopia’s contribution to the HRC and its commitment to human rights since the establishment of the HRC and particularly in the past three years. Ethiopia served as a member of the council for two terms and played an active role in the promotion and protection of Human rights. It has been active during the UPR, in which it submitted full-fledged reports on the progress it made on human rights. It has also accepted many of the recommendations from states parties, including, promulgating new laws on human rights (labor law, administrative law, disability act, refugee law etc), amending controversial laws like the anti-terrorism law and the civil society law, ratifying protocols and conventions relevant to human rights of internal displacement and disability and establishing human rights council, the ombudsman and the anti-corruption commission as independent institutions.
However, Ethiopia is no exception to be a victim of the pitfalls of the HRC, which as we illustrated above, is mainly due to its act against the aspirations of human rights for all. Thus, the HRC will remain a non-neutral UN institution, like its predecessor the Human Rights Commission and will definitely need a reform to divorce its practice from the influence of its financiers and stop being an institution of politics and working on double standards. The former UN Secretary General Ban ki Moon once urged the member nations to let go of their ‘dop rhetoric and partisan posturing in order to be an unbiased body that protects human rights around the world despite any political implications’. It remains to be seen how effectively the HRC shakes off these criticisms in the coming years to become the organization that it was meant to be – an unbiased protector of human rights. But for Ethiopia, it should focus on its internal issues, solve them to the betterment of its people and remain loyal to human rights protection, following the findings of the EHRC.
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Getahun Worku has LLM in Human rights. He is an advocate and attorney at law and a former columnist at The reporter, Behig Amlak column. he can be reached via getukow@gmail.com