A year ago, on 2 November 2022, the government of the Federal Democratic Republic of Ethiopia (GoE) and the Tigray People’s Liberation Front (TPLF) signed a Permanent Cessation of Hostilities Agreement (CoHA) in Pretoria, South Africa. Every Western country including the USA welcomed the agreement that was meant to put an end to the two-year civil war raging in the country. Signed not only by the parties to the conflict but also by an African Union (AU) panel of mediators, with the US government acting as guarantors, the agreement is, however, failing to fulfil even the most basic promises it made. Although the AU has reported that the disarmament of Tigray forces has been largely accomplished, and that Tigray has formed an Interim Regional Administration (TIRA) as per the Agreement, the flawed “Transitional Justice” system and the federal government’s failure to restore Tigray territories and protect Tigray civilians from Eritrean hostilities have undermined the very essence of the agreement. For these reasons, unlike Western and UN envoys, Tigrayans believe that the Pretoria Agreement has not delivered what it promised.
While the cessation of hostilities has been achieved, Tigray may soon become a battleground for another round of war between the two dictators, Abiy Ahmed and Isaias Afwerki. Tigray authorities have been forewarned not to be part of such a war unless Tigray’s interests are put in jeopardy and self-defence becomes the last resort. The Pretoria Agreement has also failed to protect the people of Tigray from suffering atrocities and there is overwhelming evidence that genocide is being committed. The protection of civilians in the context of armed conflict, including the proscription of assaults on civilian entities, constitutes a foundational precept within the domain of humanitarian law, thus qualifying as jus cogens norms. Regrettably, the Pretoria Agreement, while acknowledging the imperatives of cessation of hostilities in general, fails to include a detailed clause for the protection of civilians in the event signatories to the agreement revert to conflict. Furthermore, it inadequately outlines mechanisms for the imposition of accountability upon those individuals responsible for perpetrating attacks against civilians.
A year after the signing of the agreement, the Eritrean and Amhara forces have still not withdrawn from Tigray, rendering impossible the return of Tigrayan IDPs to their homes and their land, and the return of their property. The need for unobstructed humanitarian access and the reconstruction of Tigray has largely been disregarded, and the federal government appears to lack the motivation to reconstruct war-torn Tigray. The Ethiopian government’s demands – mainly the disarmament of the TDF – have progressed; federal authority has been restored in Tigray and the Ethiopian National Defense Force (ENDF) has been recognised as the only legitimate armed force in Ethiopia and its deployment in Tigray accepted.
While almost all the provisions of the CoHA assert status quo ante by restoring federal authority and allowing the ENDF’s return to Tigray, they fail to expressly order the withdrawal of Amhara forces and the return of all Tigray territories, as provided under the 1995 Ethiopian Constitution. Article 10 of CoHA only states that “parties commit to resolving issues of contested areas in accordance with the Constitution of the Federal Democratic Republic of Ethiopia”. It fails to directly address the issue of Western Tigray or other areas of Tigray now under the control of Ethiopian, Amhara, and Eritrean forces. This is of critical importance because Western Tigray constitutes the only corridor that offers Tigray access to the outside world, and has therefore been used as a military chokepoint to deny Tigray its links to international borders, and hence access to supplies. Western Tigray is also an economic corridor for agricultural cash crop production.
As outlined in the agreement, the government of Ethiopia pledged to address disputes concerning “contested territories” in line with the constitutional principles enshrined in the Federal Constitution of Ethiopia. This commitment entails the restoration of Tigray territories to their pre-November 2020 status and the reinstatement of Tigray administrations, in accordance with Article 10(4) of the agreement, until a lasting resolution is reached in line with the constitutional principles governing the peaceful resolution of interstate land disputes. It has been a year since the agreement was signed, and during this time, the Ethiopian government has not demonstrated a robust commitment to the restoration of Tigray territories and administration. The Ethiopian government’s failure to restore the Tigray territories stands as an egregious breach of the agreement. This non-compliance not only violates explicit clauses but grievously undermines the territorial integrity and sovereignty of one of the signatories, Tigray (as outlined under Article 8 of the 1995 Ethiopian Federal Constitution) that the accord was designed to reinforce. The Federal Government of Ethiopia’s breach of this landmark accord justifies an immediate amendment and a renegotiation of the terms of the agreement.
The CoHA deal establishes a Monitoring, Verification, and Compliance Mechanism to operate under AU auspices through a Joint Committee and Team of African Experts. As currently formulated, the verification mechanism will not take off, let alone fly and land, unless reconstituted as a joint UN-AU project that allows for the full participation of the UN, the EU, and the US.
As the International Commission of Human Rights Experts on Ethiopia (ICHREE) has already been terminated, the flawed transitional justice framework is now a smokescreen for impunity. As a signatory to the agreement, the TPLF has the legal and political imperative, through Article 15, to demand urgent amendments, incorporate a provision for an international accountability mechanism, and explore alternative avenues for enforcement. In the face of both legal and moral imperatives, immediate action is not an option; it is a necessity. The Pretoria Peace Agreement currently lacks robust legal provisions within the context of the international legal framework to ensure the safety and protection of the Tigray region. Given these circumstances, I believe that amending the agreement to incorporate explicit provisions in this regard would be a commendable course of action.
The Federal Government of Ethiopia’s breach of this landmark accord justifies an immediate amendment and a renegotiation of the terms of the agreement.
The “Transitional Justice” system of the Pretoria Agreement is fraught with deficiencies, most notably lack of impartiality and competence, and absence of political will – three indispensable attributes of any credible judicial mechanism. The overwhelming rejection of the Transitional Justice system by the nearly one hundred global Tigrayan civil societies that was palpably evident during the UN’s ICHREE mandate extension hearing, bears testament to a crisis of confidence in its impartiality. Tigrayans abroad and at home do not trust that justice will be served through the “Transitional Justice” system conceived at Pretoria because this mechanism defeats a basic tenet of natural justice – Nemo judex in causa sua (no one should be judge in their own case). The “Transitional Justice” system was proposed by the Ethiopian government, its proceedings to be overseen by the Ethiopian government within a politically charged judicial framework, yet the subject of the probe is the Ethiopian government and its Eritrean and domestic allies. The litany of failures and legal insufficiencies plaguing the existing accountability framework in Ethiopia render an international mechanism not just desirable, but absolutely necessary. An international mechanism would operate free from domestic political pressures, thereby offering an unbiased platform capable of conducting impartial investigations. Tigrayans and friends of Tigray must make renewed efforts to demand justice in a concerted manner.
Furthermore, the idea of self-determination holds a paramount position, especially in the context of ethnic federalism as is the case in Ethiopia. This principle encompasses the right of ethnic and political groups to decide their political status and actively engage in the advancement of their economic, social, and cultural well-being. An issue of great significance in Tigray revolves around the Tigrayan population’s pursuit of self-determination. Regrettably, the Pretoria political accord, which was signed between the TPLF and the federal government of Ethiopia, fails to acknowledge Tigrayans’ legitimate aspirations for self-governance. Furthermore, it overlooks the diverse voices within Tigray, as the TPLF was the sole signatory of the agreement on the Tigray side.
Grounds for amendment
Often, failure to comply with treaty commitments, changes in circumstances, and unexpected situations may necessitate an amendment to peace accords. The main objective of such an amendment is not to renege on the promises made but to reinforce the original obligations as failure to adapt to the accord could lead to a dissatisfied party abandoning the agreement, risking further atrocities.
In the context of a peace treaty that breaches a peremptory norm of international law, such as a disregard for the principles of international human rights law and humanitarian law, serious concerns arise regarding its legitimacy and compliance with fundamental international legal standards. The Pretoria Agreement is deficient in upholding the aforementioned fundamental tenets, as it lacks the incorporation of a mechanism guaranteeing the independent and impartial investigation of grave breaches of international law and non-repetition of the core crimes. It also neglects to recognise the innate right to self-determination of the Tigray people and fails to provide robust safeguards for the protection of Tigray civilians from existing and potential threats.
The Pretoria Peace Agreement currently lacks robust legal provisions within the context of the international legal framework to ensure the safety and protection of the Tigray region.
Abiy Ahmed has begun his mobilisation to “secure Ethiopia’s access to a sea or port”, but there exists a substantial risk of the Ethio-Eritrean conflict resurfacing. In light of the disarmament of the Tigrayans and the sale or transfer of war equipment, this raises the question of whether the Abiy regime can be relied upon in the event of war in Tigray.
The way forward
In light of the foregoing, it is evident that by invoking Article 15 of the Pretoria Agreement and international legal principles, the TPLF must demand an amendment to Article 10 of the Agreement and the enforcement of the rest of its provisions. This amendment request should comprehensively address the critical deficiencies observed in the agreement, including the establishment of an independent and impartial mechanism for the investigation of core international crimes, such as war crimes, crimes against humanity, and genocide; reaffirming the inherent right to self-determination for the Tigray people; providing robust and reliable protections for Tigray civilians, both in the present and in anticipation of future threats.
Moreover, the deliberate economic apartheid that has been imposed on Tigrayans throughout the more than two years of war has severed their lifeline. Nearly all of Tigray’s infrastructure has been decimated, unemployment has reached unprecedented levels, there is no conducive environment for investors, and Tigrayans continue to face restrictions on their right to engage in business and employment throughout Ethiopia. Given this deadlock, the agreement should include explicit provisions to address the economic challenges that Tigrayans are enduring.
The Ethiopian government’s glaring non-compliance with the Pretoria Peace Agreement demands immediate action. Armed with the legal and moral mandate provided by Article 15, the TPLF must act decisively to amend Article 10 and other relevant provisions of the Agreement while also demanding its enforcement. The introduction of an independent international investigative mechanism stands as the missing linchpin, capable of rescuing the accord from its current state of impotence and offering a beacon of hope for the realization of true justice for more than one million Tigrayans. Given the federal government’s failure to restore Tigray territories and protect the safety of Tigrayans, a prompt amendment to certain relevant clauses is needed to establish a framework for addressing these issues. TPLF’s request for such an amendment is legally sound and aligned with the core principles of international law, thus fostering a more just and equitable resolution within the confines of the Pretoria Agreement.
Abiy Ahmed has begun his mobilization to “secure Ethiopia’s access to a sea or port”, but there exists a substantial risk of the Ethio-Eritrean conflict resurfacing.
An unenforceable peace treaty such as the Pretoria Peace Agreement that is lacking the political will and legal mechanisms can be challenging. To render it enforceable, both parties may need to renegotiate and clarify the terms, establish mechanisms for compliance, and possibly involve international organizations to oversee and mediate the process. Effective enforcement of the agreement could reinforce consideration of other peace agreements that the Ethiopian government has signed with other groups, including OLF, ONLF, and other political and military groups in the country. It is crucial to ensure that the treaty aligns with international law and is legally binding for all parties. Despite being a legal document, the Pretoria Peace Agreement fundamentally embodies a political accord. The effective execution of political concessions in such agreements is contingent upon the political will of all stakeholders. Should the TPLF or the Transitional Interim Administration (TIRA) choose to implement the flawed “Transitional Justice” initiative while the Pretoria Agreements promises remain unfulfilled, this would constitute a monumental historical misstep.
