By: Marishet Mohammed Hamza and Fikire Tinsae Birhane
Ethiopia and Sudan share a long border that stretches over 1,600 Kms. While large part of the border remains un-demarcated, it is mostly undisputed. There are, however, pockets of disputed lands, including ‘Al-Fashqa’, which lies in the northern tip of the shared boundary. According to Sudan, Al-Fashqa was demarcated as part of its territory under the 1902 treaty between Ethiopia and colonial Britain, representing Sudan. For long, it is Ethiopian farmers that reside and farm in Al-Fashqa. Sudan explains the reason for this is the 1978 agreement in which it has agreed to leave the soft border open to Ethiopian farmers who would operate under Sudanese law and pay taxes to it, while Ethiopia recognizes Sudan’s sovereignty over the land. Ethiopia rejects such claims and has been asserting its full sovereignty instead.
Recently, following accusations of attacks in Al-Fashqa against Sudanese civilians by armed militiamen(which Sudan alleged were supported by Ethiopia), Sudan’s military crossed into the disputed territory, attacked the villages and took control of a large part of the territory. The attacks, according to Ethiopia, took place since the first week of November 2020. Besides, there are also reports indicating military confrontations between the defence forces of the two countries.
Sudan has confirmed it has ‘(re)taken control of most of Sudanese territory in the disputed border area which was under the Ethiopian farmers’. However, Ethiopia persistently accuses Sudan of intruding into, and carrying out organized attacks and forcefully taking control of its land. Sudan, on its part, accuses Ethiopia of supporting continued attacks by local militiamen and, also, violation of its airspace by an Ethiopian fighter-jet. Ethiopia rejects these claims too. The tensions have further escalated and, on 15 February 2021, Sudanese foreign ministry has accused Ethiopian forces of trespassing into Sudanese land ‘in an act of aggression’. Similarly, the Ethiopian foreign ministry condemned Sudan for its continued provocative behaviour, violation of boundary agreements, and called upon it to ‘reverse [its] aggression’.
Is the Use of Force by Sudan (un)lawful?
It is an established principle of international law that States shall refrain from the threat or use of force in their international relations ‘against the territorial integrity or political independence’ of other States(UN Charter, Article 2(4)). The only exception for this is the right to self-defence to repel an armed attack(UN Charter, Article 51). Thus, unless justified under the exception, the threat or use of force might constitute an armed attack, and violation of the UN Charter. Despite this proscription, States might still resort to the use of force; in which case a situation of armed conflict occurs and the propriety of resorting to force could become an international law issue.
The prohibition under Article 2(4) of the UN Charter equally applies to disputed territories (C. Yiallourides et al, 2018, p.). The obligation under Article 2(4) supplements Article 2(3) of the Charter, which requires States to settle their disputes through peaceful means. These obligations were reaffirmed in the 1970 UN General Assembly Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, which provides that States have a duty ‘to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States’ (Principle 1). The International Court of Justice (ICJ) has observed that the adoption by the majority of States of the Declaration ‘affords an indication of their opinio juris as to customary international law on the question’ (Nicaragua judgement, para.191). Accordingly, ‘under the UN Charter and customary international law, the resort to force is never an acceptable means of altering an existing territorial status quo, including in situations of disputed territories’ (C. Yiallourides et al: p. 90).
Turning to our case, Sudan has officially acknowledged its attacks in the disputed Al-Fashqa area and forcefully retaking the disputed territory. Manifestly, these acts constitute use of force as contemplated under international law. As the attacks have occurred against a territory which Ethiopia categorically and in strongest terms claims as part of its sovereign territory, arguably, the Sudanese acts could be regarded as attacks directed against the sovereignty and territorial integrity of Ethiopia.
Sudan has not yet justified its attacks and the forceful control of part of the disputed land under the self-defence exception. This could have invited assessment of whether its armed attack might be in tune with the UN Charter. Though there has not been such a claim, one should examine whether the alleged attacks (against Sudanese civilians and military) within the disputed land by the local (Ethiopian) militiamen could be regarded as an armed attack to which Sudan could invoke the right to self-defence.
The ICJ, in its Nicaragua judgement (para.195) has made it clear that the concept of ‘armed attack’ in the context of the right to self-defence is limited to ‘actions by states’. Regarding an armed attack by a non-state armed group (such as the local militiamen), it will constitute an armed attack if it could be proven that a State has ‘financed, armed and trained the armed group’ and sends it over a border to engage in use of force against another State (ibid). Similarly, International Law Commission’s (ILC) draft articles on responsibility of states for internationally wrongful acts provides for situations where a certain conduct can be attributed to a State, and thereby entail its international responsibility. As described above, Sudan acknowledged waging military attacks against the Ethiopian militiamen in Al-Fashqa and forcefully retaking most of the villages in the disputed territory. Accordingly, there is no question that this conduct is attributable to Sudan (Article 4, ILC Draft Articles).
However, even if Sudan’s claim that the (Ethiopian) militiamen had attacked Sudanese civilians prior to the Sudanese military attacks in the Al-Fashqa area is true, there still is a question whether the militiamen’s conduct can be attributed to Ethiopia. The relevant provision in the ILC draft articles provides that ‘the conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct’ (id, Art 8).
In addition, according to the ICJ, not all incidents by armed forces (including non-state armed groups) constitute armed attacks that entitle States to use counter-force in self-defence; rather, it has to be a ‘grave form of the use of force as distinguished from other less grave forms’ (Nicaragua judgement, para.191). Accordingly, even if it were possible to attribute the local militiamen’s attack to Ethiopia, for Sudan to invoke the right to self-defence, it has to be proven that the attacks were a ‘grave form of the use of force’. On top of that, as the incidents happened in a disputed territory, it has to also be established that the alleged militiamen attacks occurred against Sudan’s sovereign territory. The mere allegation that Ethiopian-militiamen had attacked Sudanese civilians may not suffice to consider the events as an armed attack against Sudan as a State.
In sum, ‘forcible means cannot be used to gain control over a disputed territory or to alter in any way the existing factual situation on the ground in the attacking State’s favour. Moreover, force cannot be used to correct retroactively situations of perceived past injustice on grounds of self-defence’ (C. Yiallourides et al: pp. 90-91). A State cannot also legitimately invoke a right of self-defence to gain control over a disputed area which is under the de facto control and administration of another State, on the basis of rectifying a situation of unlawful possession or generally correcting a ‘past injustice’ (C. Yiallourides et al: p. 77).
Is there an International Armed Conflict?
While resorting to war(armed attacks) in violation of the UN Charter prohibition on the use of force is a jus ad bellum question, the issue of whether there actually exists an international armed conflict (IAC) is a jus in bello question, which pertains to the applicable international humanitarian law (IHL) rules.
Both Ethiopia and Sudan are state parties to the four Geneva Conventions of 1949(GCs) and their two additional protocols of 1977. According to Common Article 2 to the GCs, the Conventions apply to ‘all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, … [and] to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance’. Additional Protocol I(API) applies to similar situations(Article 1(3)). Generally, according to IHL, two situations trigger an IAC: an armed conflict between two or more States (a declaration of war may also trigger the applicability (M. Sassòli, 2019, p.169)) and occupation of the territory of another State.
According to Sassòli, the existence of an IAC is a question of fact that exists ‘if someone attributable to a State commits acts of violence against persons or objects representing another State’ (ibid). To distinguish from acts which are unintentional or done mistakenly/in error, it is suggested that the act must be approved by the ‘highest authorities of the State’ (ibid).
Based on the above assessment, the Sudanese military’s organized armed attack in Al-Fashqa could be taken as a sufficient fact to prove the existence of an IAC between the two countries. Reports of military confrontation between the defence forces of the two countries further corroborate this.
Status of Al-Fashqa, is it an Occupied Territory?
While Sudan claims retaking control of a disputed territory, Ethiopia accuses Sudan of ‘occupying’ its land. Under the Hague Regulations (Article 42), ‘a territory is considered occupied when it is actually placed under the authority of the hostile army’. Conventionally, there are three fundamental criteria that will be used to establish whether a situation constitutes an occupation: effective control by one State of part or whole of the territory of another State, loss of effective control by the invaded State, and lack of consent by the State that lost control over territory. (M. Sassòli, 2019, pp.303-305).
Thus, control over territory constitutes an occupation, and obligations of an occupying force follows, where a State invades and took control of a territory that belongs to another State. In our case, Sudan claims it has retaken control of its own territory. Indeed, under the law of occupation, if a State ‘liberates its own territory that was previously occupied’ by an adversary and regains control, it would not constitute an occupation (ibid, p.313). Nonetheless, where sovereignty over a territory is disputed, the claim of retaking control over territory (like Sudan’s claim over Al-Fashqa) will not exclude the applicability of the law of occupation (ibid). In other words, though a State controls a territory it considers to be its own, it would still constitute an occupation, if sovereignty is contested by the adversary (E. Benvenisti, 2019, p.59; A. Roberts, 1984, 55 BYBIL 249, p.280).
In light of Ethiopia’s assertion of sovereignty over the territory, one could easily see that sovereignty over Al-Fashqa remains a disputed one, and, in that case, it is reasonable to conclude that Al-Fashqa can be considered an occupied territory to which IHL of occupation would be applicable.
In light of the UN Charter prohibition on the use of force, which equally applies to disputed territories like Al-Fashqa, Sudan’s forceful entry into Al-Fashqa and (re)taking control of territories that were under the de facto control and administration of Ethiopia makes its act unlawful under international law. Also, the undisputed armed attacks in Al-Fashqa and alleged military confrontation between the defence forces of the two countries along with the situation of occupation of Al-Fashqa establish existence of an IAC between Ethiopia and Sudan.
1.Marishet Mohammed Hamza
PhD Student at the Graduate Institute of International and Development Studies, Genève
2. Fikire Tinsae Birhane
PhD Student at the Institute of International and Comparative Law in Africa, University of Pretoria;
Lecturer of Laws and Human Rights, School of Law, Hawassa University.