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Beyond Rights: Legal Process and Ethnic Conflicts Michigan Journal of International Law Volume 25 Issue 3 2004 Beyond Rights: Legal Process and Ethnic Conflicts Elana A. Baylis University of Pittsburgh School Law Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the Military, War, and Peace Commons, and the Rule of Law Commons Recommended Citation Elana A. Baylis, Beyond Rights: Legal Process and Ethnic Conflicts, 25 MICH. J. INT'L L. 529 (2004). Available at: https://repository.law.umich.edu/mjil/vol25/iss3/1 This Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. BEYOND RIGHTS: LEGAL PROCESS AND ETHNIC CONFLICTS Elena A. Baylis* I. IN TRODUCTIO N ......................................................................... 530 A. The PersistentProblem of Ethnic Conflict ........................ 530 B. Considering Legal Process Solutions ................................ 533 II. THREE REALITIES OF ETHNIC CONFLICT ................................. 536 A. Three Ethnic Conflicts....................................................... 539 B. The FirstReality: Complex and Dynamic Conflicts.......... 541 C. The Second Reality: Democracy as Catalystfor Confl ict .......................................................... 548 D. The Third Reality: Neutrality Fails Ethnic Conflict .......... 551 III. LEGAL PROCESS MODELS AT WORK IN ETHNIC CONFLICT RESOLUTION ............................................................ 556 A . The EthiopianSystem ........................................................ 557 1. Structure ...................................................................... 557 2. The Berta: M ediation .................................................. 562 3. The Silte: Constitutional Interpretation ...................... 565 4. The Oromo: The Limits of the System ....................... 568 5. Key Factors in the Berta, Silte and Oromo Cases ....... 568 B. Exploring Legal ProcessModels ....................................... 572 1. Three Institutional Qualities: A Permanent, Ethnic-Composed Institution with Standing for Ethnic G roups ....................................................... 574 2. Complementary Consensual and Adjudicative M ethods ................................................. 587 3. Constitutional Interpretation ....................................... 594 IV. CONCLUSION: A ROLE FOR LEGAL PROCESS ............................ 601 * Assistant Professor, University of Pittsburgh School of Law; J.D. 1998, Yale Law School; B.A. 1993, University of Oregon. Thanks to Vivian Curran, Dinah Shelton, Carolyn Evans, Pat Chew, John Parry, Jules Lobel, Tracy Naber, Don Munro and the participants in a faculty workshop at Case Law School for their suggestions. Thanks also to my research assis- tants, Meredith Schultz and Larissa Bifano, for their work. Thanks are not enough for all those who graciously discussed their knowledge of Ethiopia with me, including Zekarias Megiso, Samuel Alemayahu, Musetefa Haj Adew, Kemal Bedri, Menbere Tsehai Tadesse, Sinidu Alemu, Yehenew Tsegaye, the instructors at Mekelle University Law Faculty, and many others. All inter- viewees cited in this Article spoke with me in their individual capacities based on their personal knowledge and experiences, and not as representatives of the Ethiopian government nor of any other government or organization. The analysis and conclusions in this Article are my own, and the interviewees do not necessarily endorse or agree with my analysis. Editorial note: The author performed much of the research for this Article on location in Ethiopia. Many primary sources are on file with the author. Michigan Journal of InternationalLaw [Vol. 25:529 Unresolved ethnic conflicts threaten the stability and the very ex- istence of multi-ethnic states. Ethnically divided states have struggled to build structuralsafeguards against such disputes into their political and legal systems, but these safeguards have not been able to prevent all conflict. Accordingly, multi-ethnic states facing persistent ethnic conflicts need to develop effective dispute resolution systems for resolving those conflicts. This presents an importantquestion: what kinds of processes and institutions might enable ethnic groups to resolve their conflicts with each other and the state? This Article explores that question, reviewing the inter- disciplinary literature on ethnic conflicts, the legal literature on legal process and conflict resolution, and a case study of ethnic conflicts and conflict resolution in Ethiopia.At crucial moments in the development of an ethnic conflict, legal processes such as mediation, arbitrationor constitutional interpretationmight play a role in resolving the dispute. But ethnic conflict resolution insti- tutions and processes must be carefully designed to take account of the variety, complexity and dynamics of ethnic conflicts, and to address the substantialnumber of ethnic groups and interests that diverge from the "minority rights" legal model. Ultimately, the Ethopian example calls on us to consider whether and how legal processes might be able to ameliorate the threat posed by ethnic conflict. I. INTRODUCTION A. The PersistentProblem of Ethnic Conflict The front page of today's newspaper is a maelstrom of ethnic con- flict.' Unchecked, such conflicts can escalate into genocidal campaigns 1. The first and most fundamental problem in talking about ethnic conflict is defining ethnicity. This is a task that is well beyond the scope of this Article. Fortunately, for purposes of this discussion, it is enough to rely on a community's self-identification as a single ethnicity in designating it an "ethnic group," and likewise enough to rely on its self-identification of its dispute with another group as an "ethnic conflict" to designate that conflict as "ethnic" as well. Because the concern of this Article is resolving conflicts that arise between peoples who perceive themselves as identifying with a particular ethnicity and who perceive these conflicts as being ethnic in nature, it is these perceptions that matter, and not whether the perceptions are appropriate by an objective standard. Accordingly, I will refer to "ethnic conflict" throughout the Article to describe conflicts that the parties involved consider ethnic, and to "ethnic groups" to describe communities that consider themselves to be of a single ethnicity. The problem of defining ethnic identity is also addressed in the discussion of the Silte conflict, see infra II.A.3. See generally BENEDICT ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE ORIGIN AND SPREAD OF NATIONALISM (rev. ed. 1991); DONALD L. HOROWITZ, ETH- NIC GROUPS IN CONFLICT (1985) [hereinafter ETHNIC GROUPS IN CONFLICT]; RODOLFO Spring 2004] Legal Process and Ethnic Conflicts of violence and threaten the very existence of the state. The problem is especially acute in developing and newly democratic states with nascent formal institutions and legal traditions. In such states, kinship relation- ships often define the social structure; social, economic and political power are likewise held and exercised on a kinship and ethnic basis; and government by the formal state has infiltrated only weakly, if at all, into local power institutions. Around the world, multi-ethnic states are struggling to devise struc- tural safeguards within their governments to forestall ethnic disputes. Many of the newly democratic and developing states that have reformed their political systems in recent years have sought to diffuse ethnic power by creating non-ethnic institutions.3 Others have developed com- plex, expressly ethnic power-sharing arrangements, designated seats in their legislatures for ethnic groups, and made other efforts to create self enforcing incentives for inter-ethnic cooperation. A number of states have established protections for the rights of ethnic minority or indige- nous groups.5 Constitutions have often been the vehicle for these efforts. But none of these state structures, whether or not ethnically neutral, can be expected to create an ideal political balance capable of nullifying the risk of ethnic conflict. Rather, even well designed political systems have been challenged by the tenacity of ethnic identification and the cer- tainty of resultant ethnic conflict. So long as a society is ethnically defined and controlled, many conflicts, whether over resources, political representation, or mere individual disputes, will be perceived and organ- ized as ethnic conflicts. STAVENHAGEN, THE ETHNIC QUESTION: CONFLICTS, DEVELOPMENT, AND HUMAN RIGHTS 1- 3 (1990); Miriam J. Aukerman, Definitions and Justifications:Minority and Indigenous Rights in a Central/EastEuropean Context, 22 HUM. RTS. Q. 1011 (2000). 2. In the Ivory Coast, for example, Ivoirians reportedly view themselves primarily as "members of regional extended-family and corporate kin groups competing with others for their share of scarce economic resources and political clout," rather than as members of the Ivorian polity. Jeanne Maddox Toungara, Ethnicity and Political Crisis in C6te D'Ivoire, 12 J. DEMOCRACY, July 2001, at 63, 64. Political turmoil has rocked the country as politicians have called upon ethnic loyalties and repressed other ethnic groups in their bids for power. See
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