Author Fekade Alemayhu Abebe
Since the attack on the Ethiopian National Defense Forces (ENDF) northern command base in the capital of Tigray regional state Mekelle, in the early hours of November 4, 2020 by forces loyal to the Tigrayan Peoples Liberation front (TPLF), the Northern region of Ethiopia had been a site of intense military confrontation. On November 23, 2020, the ICRC Ethiopia released a statement denying a claim by the Tigray forces that it has received 858 detainees of Ethiopian National defense force (ENDF) soldiers who were captured in the context of the conflict in Northern Ethiopia.The ICRC reiterated that it is willing to extend its services in returning those detained, should it be asked. This story raises some critical issues from the perspective of IHL like whether armed groups can detain in armed conflicts? If so, on what legal basis? Does IHL provide a sufficient legal base for detentions outside a criminal process (internment) in armed conflicts to be lawful? This short article tries to bring some of the scholarly debates surrounding these issues in the current conflict in Northern Ethiopia. The article will first start by making the case for the application of IHL by classifying the conflict.
- Is there an armed conflict for the purpose of IHL and if so, what is the applicable law?
Under IHL, a conflict can either be an international armed conflict(IAC) where it involves use of force by two or more high contracting parties to the conflict or it can be a non-international armed conflict(NIAC)when it involves an armed force of a State and dissident armed forces or other organized armed groups or armed conflict between such organized groups themselves. The conflict in Tigray region is between the ENDF, Amhara Special forces and militias on the one hand, and dissident armed forces of the Tigray regional special force loyal to the TPLF, on the other. These rules out the possibility of IAC at least for now. For a NIAC to exist the conflict must reach a certain level of intensity and the groups fighting the state armed forces must be well organized (seehere). Judging by the military engagements reported in the region for the past three weeks the number and caliber of weapons used by both parties, and the number of people fleeing the conflict; it is possible to infer that the conflict is in fact intense. The core of the TPLF forces, even before the conflict, were serving as a regional special force with a clear chain-of-command and territorial control. It is , therefore, possible to decipher they have sufficient level of organization. Hence, the conflict can be classified as NIAC. Since Ethiopia has ratified the Geneva Conventions and its protocols, the second protocol (APII) is also applicable in addition to common Article 3 of the Geneva convention (CA3) and Customary IHL to the current conflict.
- Does IHL provide a sufficient legal basis for detentions in NIAC?
Detention is a common occurrence in armed conflicts. Accepting this reality, IHL extensively allows for and regulates detentions in IACs under GCIII and GCIV. When it comes to NIACs, however, there is no such express authorization in both treaty and customary IHL. This has sparked scholarly debates whether IHL provides sufficient legal basis to detain in NIACs. From the perspective of State armed forces, this issue is controversial where the detention took place in a NIAC taking place outside the territory of the state concerned (i.e. extra-territorial NIACs).( See, for example, Mačak pp13-18; Aughey& Sari, for arguments supporting the view that IHL does provide for inherent authority to detain). However, when it comes to territorial NIACs, such legal basis could easily be found in domestic law. The ICRC supports this view, but such legal basis must be informed by the State’s human rights obligations and IHL (CA3 commentary, §763).
- Does IHL give Non-State Armed Groups (NSAGs) sufficient legal basis to detain?
The issue of whether IHL provides sufficient legal basis for detention by NSAGs is a topic of much controversy, even in the case of territorial NIAC. Notable Scholars, agreeing that such inherent authority exists in IHL, argue that it extends to detention by armed groups. (see Clapham pp.6-12; Murray pp. 446-449; Heffes pp. 238-247, and Niyo pp.16-19). Their main argument is based on the principle of equality of belligerents which can be inferred from the wording of CA3 and Art.4, 5, 6 of APII. These obligations include the obligation to treat those detained humanely and judicial guarantees before sentencing which both sides are expected to comply with. Besides the principle of equality of belligerents, proponents also argue that prohibiting detention by NSAGs will create an incentive to kill combatants and fighters rather than detain, going against the very purpose of IHL. If IHL does not recognize and regulate the detention by NSAGs, it would leave a protective gap which will result in abuse of rights of detained persons. (For a summary of these arguments, see Heffes , pp.238-247).
However, this view has been challenged by other group of scholars who argue that there is no explicit provision that provides such inherent authority to detain for both parties in NIAC. They reject the argument that the wording of CA3 and 4, 5 & 6 APII provides implicit authority saying that it does not suggest authorization rather it merely suggests that IHL does not prohibit it. (see for example Laurence Hill-Cawthorne, pp.70-75; Hill-Cawthorne& Akande; Rona, pp.35-37). Hence, they argue the legal basis for detention by NSAGs should be searched for elsewhere like in domestic law or human rights law. In addition to these, scholars in general, oppose the existence of such authority for NSAGs in fear that it would legitimize the latter either legally or politically (See Rona, pp.38-39). The ICRC, in both controversial situations of extra-territorial NIACs and detention authority by NSAGs, seems to agree with the first group of scholars at first sight stating that both treaty and customary IHL provide inherent power to detain which may constitute a legal basis to detain, with the caveat that such legal basis must be bolstered with additional authority regarding grounds and procedures of detention.(CA3 commentary, §765).
The author of this contribution agrees with the ICRC and the first group of scholars in that implicit legal basis for detention by the Tigrayan forces must be derived from IHL. The fact of the matter is IHL do foresee the detention by NSAGs. Recognizing this implicit authority will make it easier also to regulate the detention i.e. calling for humane treatment and judicial guarantees. This is so, as it is difficult to see NSAGs derive legal basis from domestic law of the state they are fighting with. Whether or not these forces are also bound by obligations coming from human rights law is a subject of further interest but that goes beyond the scope of this short piece.
Fekade Alemayhu Abebe is a PhD candidate at the Graduate Institute of International and Development Studies. The author can be reached at email@example.com