Author: Wubeshet Tiruneh
On 10 May 2021, the Office of the Attorney General of the FDRE issued a press release on its finding on the alleged massacre in Axum. The Office concluded that the great majority of those killed in Axum were members of the fighting force of the TPLF and they were killed during the fighting. Indeed, the reports of the Human Rights Watch, the Amnesty international, and the Ethiopian Human Rights Commission similarly indicated that TPLF forces and other civilians attacked Eritrean forces, and that there was a fighting between them in Axum on 28 November 2020. However, according to the reports of these human rights organizations, many of the victims were killed and wounded after the fighting had stopped, in what the Human Rights Watch report called ‘apparent retaliation’.
In a statement issued regarding the findings of the Office of the Attorney General, Human Rights Watch slammed the findings and questioned how ‘the Ethiopian government distinguishes between combatants and civilians’. The statement further highlighted that the Office of the Attorney General ignored civilians killed and wounded after the fighting had stopped, and reminded the Office and the government that IHL prohibits targeting civilians, even if they had participated in fighting in the past. Amnesty international similarly issued a statement expressing its ‘concerns that the actual purpose of the investigation is to cover up the massacre by claiming that those killed were actually TPLF.’
The concern of the Human Rights Watch and the Amnesty International is legitimate given that the finding of the office of the Attorney General is mainly related or confined to those who were killed during fighting or hostilities. It did not address or cover those who were killed and wounded once the fighting or the hostilities had ended or significantly subsided in that specific incident. Indeed, on 21 May 2021, the Office of the Attorney General issued another statement in which the Office admitted that there have been killings in the city after the fighting had stopped. However, the statement claimed that some of those who have been killed in the city are ‘irregular combatants’.
This triggers a question whether and in what circumstances can the armed forces of a state can legitimately use a lethal force once the fighting had stopped within the context of non-international armed conflict. Can they justify the use lethal force outside of active hostilities by claiming that those individuals against whom force is used are fighters or civilians who participated in hostilities?
The Use of Lethal Force Outside of Actual Hostilities
The legality of the use of lethal force in the context of armed conflict is determined mainly based on the status of a person or the object against which it is used. It is lawful as far as the attack is directed against combatants, fighters and civilians who are directly participating in hostilities. The cardinal obligation of states to non-international armed conflict is to distinguish between civilians and fighters and direct their attacks against fighters. The use of lethal force or directing attack against civilians is prohibited and could constitute war crime unless and to such time they are directly participating in hostilities.
The question, however, is whether the authorization to attack or use lethal force against fighters is limited in the context hostilities or the entire duration of non-international armed conflict. This is important because there is a tendency to use lethal force once the hostility has ended and claim that the person against whom the force is used is a TPLF fighter. The traditional view was that fighters can be targeted anytime in the context of armed conflict. However, currently, there is a growing consensus that once the hostilities have ended or significantly subsided and the armed forces of states controlled the area, lethal force should not be used unless it is absolutely necessary and proportional. Anyone, including fighters, cannot be subjected to lethal force except to respond to an imminent threat to life or bodily integrity.
There are two justifications for this. First, under international humanitarian law, there is no military necessity to use lethal force and kill or wound an individual while he/she can be reasonably apprehended without causing undue danger. General Comment no. 3 of the African Commission, for instance, reminds us that ‘[w]here military necessity does not require parties to an armed conflict to use lethal force in achieving a legitimate military objective against otherwise lawful targets, but allows the target for example to be captured rather than killed, the respect for the right to life can be best ensured by pursuing this option.’ (para. 34)
Second, once the hostilities have ended or significantly subsided, the use of force, even against fighters, will become a law enforcement issue, not a conduct of hostilities issue, and governed by rules derived from international human rights law. International human rights, particularly rules relating to the prohibition of arbitrary killing, requires states to use lethal force as a measure of last resort. They should attempt to make arrest or use less or non-lethal force before resorting to lethal force. Armed forces of a state can resort to a lethal force only when it is necessary to respond to an imminent threat to life. Even in the presence of a serious threat, the force used should not exceed the amount strictly needed for responding to the threat. So, the status of a person as a fighter cannot justify the use of lethal force outside of hostilities.
According to the finding of the Office of the Attorney General, the fighting took place in the mountains area of Axum from 6 A.M to 2 P.M until ENDF’s help had arrived and TPLF forces had backed to the city. The use of force by the Eritrean force in this specific context will be legitimate if it is targeted against fighters and civilians who are directly participating in hostilities. Parties to the conflict can direct their attack or use lethal force against any legitimate military target in the context of hostilities.
However, the Eritrean forces continued using lethal force and killed and wounded many individuals in the city after the fighting had stopped. The use of force in this context cannot be justified by claiming that those individuals against whom force is used are fighters or civilians who participated in hostilities. The legality or otherwise of the use of lethal force in such context does not depend on the status of a person against whom the force is used. Instead, it depends on whether it is absolutely necessary and proportional to respond to serious and imminent threats to life.
Multiple reports, including the detailed report of the Ethiopian Human Rights Commission, indicated that Eritrean forces used lethal force against unarmed individuals, by going house to house, and some after being apprehended. There were no imminent and serious threat posed by these individuals against Eritrean forces or anybody else. Even if these individuals had been suspected of being a TPLF fighter or civilians who directly participated in hostilities, they could have been easily apprehended without causing any danger. The use of lethal force by Eritrean forces against these individuals in Axum was therefore neither necessary nor used as a last resort.
The Extraterritorial Human Rights Obligation of Eritrea
The restriction on the use of lethal force outside of hostilities is derived from the obligation of states to respect the right to life or not to arbitrary kill individuals under international human rights law. This triggers a question whether Eritrea has an obligation under international human rights law to respect the right to life of individuals in Tigray, Ethiopia, where its forces are operating. Indeed, State obligation under international human rights law is mainly territorial with regard to individuals living within their respective borders. However, it could extend extraterritorially whenever they exercise jurisdiction outside of their borders through control over territory or person, regardless of the legality of the control.
Particularly in the context of military operations abroad, General comment no 31 of the Human Rights Committee states that human right obligation ‘applies to those[individuals] within the power or effective control of the forces of a State Party acting outside its territory.’ (para. 10) Similarly, General Comment no 36 noted that states have an obligation to respect the right to life of individuals ‘located outside any territory effectively controlled by the State whose right to life is nonetheless affected by its military or other activities in a direct and reasonably foreseeable manner.’ (para. 63).
Since the start of the military confrontation between the Federal government of Ethiopia and TPLF, Eritrean forces are operating in some parts of Tigray, Ethiopia, under the consent or acquiescence of the Federal government. Accordingly, Eritrea has extraterritorial human rights obligation, including the obligation to respect the right to life, regarding individuals living in territories it controls or individuals over whom it is exercises power and authority as part of its military presence in Tigray, Ethiopia. Eritrea should therefore operate in a manner that respects not only international humanitarian law but also international human rights law.
The Office of the Attorney General should have therefore employed different standards in determining the legality of the lethal force used within and outside of the context of fighting. The use lethal force in the context of hostilities or fighting is legitimate if it is directed against fighters and civilians participating in hostilities. However, the use of lethal force after the fighting had stopped cannot be justified by claiming that the person against whom the force used is a fighter, even in the context of an ongoing non-international armed conflict. Anyone, including fighters and civilians who directly participated in hostilities, cannot be subject to the use of lethal force unless it is absolutely necessary and proportional to respond to serious and imminent threat.
Wubeshet Tiruneh is a Ph.D. Candidate in International Law at the Graduate Institute, Geneva. He can be reached at firstname.lastname@example.org