AAU-IHL Clinic Means and Methods of Warfare, Rules of Warfare

The Call to Ban Lethal Autonomous Weapons: Where Do African Nations Stand?

Author: Swaleh Hemed Wengo 

Photo credit: US Department of Defense / Sgt. Cory D. Payne, Public Domain

The rapid development of artificial intelligence (AI) and autonomous technologies is raising alarm bells globally about their potential use in lethal autonomous weapons systems (LAWS). LAWS, also known as “killer robots”, refer to weapons that can identify, target, and deploy lethal force against human beings without meaningful human control.[1] The idea of machines making life-and-death decisions on the battlefield has spurred an international movement calling for a total preemptive ban on fully autonomous weapons.[2] African nations have an important voice in this debate, but their perspectives remain underrepresented. 

Opposition to Killer Robots

Much of the opposition to autonomous weapons stems from grave humanitarian, legal, and ethical risks they pose.

  1. Humanitarian Opposition

It has been argued that, lethal autonomous weapon system would struggle to comply with humanitarian principles requiring humane treatment and respect for human life and dignity, as they lack emotion, compassion, ethical judgment and understanding of the value of life.[3] Humans make considered decisions about harm and killing by weighing context, impacts and alternatives, but autonomous weapons rely on pre-programmed algorithms unfit for complex scenarios.[4]While algorithms may enable adequate protection of life, lethal autonomous weapon systems could not appreciate the meaning and significance of life and death.[5] By treating targets as objects in lethal decision-making processes devoid of empathy, judgment and innate resistance to taking life, fully autonomous weapons would fail to respect human dignity and violate the principles of humanity.

  1. Ethical & Moral Opposition

There is also growing public outrage over fully autonomous weapons, implying these weapons violate the moral dictates of conscience laid out in the Martens Clause. Numerous stakeholders like individuals, experts and NGOs have voiced strong ethical objections using terms like “unconscionable” and “abhorrent.”[6] Surveys also show majority public opposition to autonomous weapons. Government statements cite compliance with the Martens Clause and moral deficiencies as concerns.[7] Over 120 nations support new law addressing lethal autonomous weapons and stress retaining human control in use of force decisions, equivalent to banning fully autonomous weapons lacking such control.[8] This emerging consensus against allowing fully autonomous weapons demonstrates they run counter to the dictates of public conscience requiring guidelines for what is morally right, as enshrined in the Martens Clause.

  1. Legal Opposition

Core principles of international humanitarian law require militaries to reliably distinguish between combatants and civilians, while avoiding disproportionate civilian harm.[9] However, LAWS may struggle with the complex judgments involved in differentiating combatants, assessing proportionality amidst uncertainty, and recognizing attempts to surrender or individuals rendered hors de combat.[10] For example, parts of Kenya and South Sudan use firearms for cattle herding. LAWS programmed to engage persons carrying firearms could fail to distinguish active participants in hostilities from herders following cultural practices. Their sensors and algorithms would need to accurately interpret such ambiguous environments and behaviors lacking contextual understanding. The unpredictability of AI systems utilizing machine learning also defies easy verification that LAWS will operate lawfully. In effect, doubts persist about the ability of LAWS to exercise discretion and restraint or demonstrate the accountability necessary to ensure adherence to norms guarding civilian lives or other protections endowed by ethics and law. 

In response to these concerns, the UN Convention on Certain Conventional Weapons (CCW) has held extensive discussions on regulating lethal autonomous weapons. A broad international coalition of NGOs known as the Stop Killer Robots has specifically called for a preemptive ban on the development, production, and use of fully autonomous weapons. The campaign has gained support from over 30 nations.[11] Outside the CCW, the European Parliament passed a resolution calling for an international ban in 2018. However, consensus remains elusive due to objections from nations investing heavily in autonomous weapons programs, such as Israel, Russia and the US, although the US believes LAWS with increasing autonomy can be developed and used responsibly under human oversight to improve compliance with international law. 

The African Stand

African nations have actively participated in CCW talks, underscoring concerns about LAWS fundamentally conflicting with human rights and dignity.  Countries such as Libya and South Africa illustrate Africa’s existing and potential connections to development of these technologies. Libya has seen autonomous weapons like the STM Kargu-2 deployed on its soil already. As an advanced arms producer on the continent, South Africa also has interests in the research and production side of autonomous weapons. Hence understanding LAWS’ impacts and asserting African perspectives in regulatory debates is critical.

The KARGU®️ – a portable, rotary wing attack drone designed to provide tactical ISR and precision strike capabilies for ground troops https://www.stm.com.tr/en/kargu-autonomous-tactical-multi-rotor-attack-uav

Several African countries have taken clear positions calling for a prohibition on the development and production of lethal autonomous weapons systems (LAWS). South Africa stated, “there is a necessity for human control in the selection of targets to enforce accountability.”[12] Egypt cited the need to preemptively ban LAWS before they proliferate citing the example of banning of blinding lasers. Algeria, Djibouti, Egypt, Ghana, Morocco, Namibia, Uganda and Zimbabwe are among over 30 countries seeking a comprehensive ban.[13] Additionally, African nations have actively participated in UN meetings examining potential legal instruments to govern LAWS. The Group of Governmental Experts (GGE) on LAWS was created under CCW to assess emerging technologies and issues around autonomous weapons in light of international law. Multiple African countries across various roles in the convention have contributed to these discussions.

African countries have provided substantive written inputs to inform GGE deliberations.[14] Mauritius advocated for a treaty instituting transparency requirements around LAWS programs and use. South Africa held that GGE principles adopted so far are only intended to guide the group’s work rather than national policies. Looking ahead, African members of blocs like the Non-Aligned Movement have underscored the urgent need to pursue legally binding prohibitions and restrictions to contend with humanitarian and security threats of LAWS. They have pushed for expanding GGE’s mandate to expressly focus on drafting robust international law covering development of these weapons.

Ghanian Chiefs urged to support ‘Campaign to Stop Killer Robots’ https://www.ghanaweb.com/GhanaHomePage/NewsArchive/Chiefs-urged-to-support-Campaign-to-Stop-Killer-Robots-1311715?gallery=1

Beyond CCW, the African Commission on Human and Peoples’ Right (ACHPR) adopted and published Resolution 473 on AI technologies  bearing in mind the statement to the United Nations Group of Governmental Experts (GGE) on Lethal Autonomous Weapon Systems  (LAWS) by the African Group of States on Disarmament on the notion of dignity and humanity and emphasized how this notion is the foundation of human rights in governing the conducts of human beings including their inventions. The African Commission’s Resolution 473 demonstrates broader concern across African institutions over retaining human control and judgment in weapon systems to uphold dignity and rights. The resolution took careful note of the statement by the African Group of States on Disarmament to the UN Group of Governmental Experts (GGE), which stressed how the concepts of dignity and humanity underpin all human rights and must govern human conduct including technological inventions.

By underscoring this statement, the resolution connects development of emerging AI and algorithmic technologies, including potential weapon systems, with longstanding African values around communal ties, ethics and our shared humanity. It suggests autonomous systems that remove human discretion over life-and-death decisions could violate these cherished principles. The resolution implied protecting dignity and human rights in the age of intelligent machines will require conscious constraints around handing over core human judgments with moral and social consequences to automated data processing.[15]

Seen together with African nations’ calls for legally binding instruments to prohibit fully autonomous weapons, the African Commission’s stance signals deep concerns that unchecked AI development poses risks of dehumanization and rights violations. Embedding moral perspectives into research guidance and governance of autonomous technologies is deemed essential to uphold existing obligations around protecting sacred human life and dignity.

However, Africa remains divided. The Continent lacks a unified stance banning killer robots. Some states, such as Guinea and Mali, have so far opposed a prohibition on LAWS or enhancing international law on the issue.[16] Defense ties with countries developing autonomous weapons drive some African nations’ positions. Financial and technical limitations also constrain independent assessment of autonomous weapons’ risks and benefits. Furthermore, inadequate basic digital infrastructure hinders many African states from crafting regulations on LAWS and on new technologies such as AI in general. Nonetheless, international momentum for curtailing autonomous weapons is escalating. As diplomatic talks continue, consolidating African perspectives on prohibiting development and use of fully autonomous weapons will be critical. More capacity building, international technical assistance, and knowledge sharing partnerships focused on responsible AI governance can help overcome these hurdles. Initiatives to expand African expertise in robotics ethics, data governance, and assessing autonomous systems safety are urgently needed. With global public opinion increasingly opposed to handing over life-and-death decisions to machines, African nations have the chance to lead in forging a legally binding international ban on lethal autonomous weapons. By asserting shared human values and rejecting the dehumanizing prospect of automated killing, Africa can make a profoundly important contribution to preventing an automated arms race and upholding international humanitarian law. The world needs African moral leadership in drawing a clear legal line against fully autonomous weapons before proliferation makes it impossible to stop the march of technology towards fundamentally inhuman ends.

References:

[1] DoD Directive 3000.09 on autonomous weapon systems, November 21, 2012.

[2] Human Rights Watch, Stopping Killer Robots Country Positions on Banning Fully Autonomous Weapons and Retaining Human Control,https://www.hrw.org/sites/default/files/media_2021/04/arms0820_web_1.pdf

[3] Human Rights Watch, Heed the Call: A Moral and Legal Imperative to Ban Killer Robots, August 2018, https://www.hrw.org/sites/default/files/report_pdf/arms0818_web.pdf

[4] What are autonomous weapons systems?, https://autonomousweapons.org/

[5] Future of Life, An introduction to the issue of Lethal Autonomous Weapons, https://futureoflife.org/aws/an-introduction-to-the-issue-of-lethal-autonomous-weapons/

[6] Human Rights Watch, Heed the Call: A Moral and Legal Imperative to Ban Killer Robots, 2018, https://www.hrw.org/report/2018/08/21/heed-call/moral-and-legal-imperative-ban-killer-robots

[7] Arms Control Association, Ethics and Autonomous Weapon Systems: An Ethical Basis for Human Control?, 2018, https://www.armscontrol.org/act/2018-07/features/document-ethics-autonomous-weapon-systems-ethical-basis-human-control

[8] Human Rights Watch, Heed the Call: A Moral and Legal Imperative to Ban Killer Robots, 2018, https://www.hrw.org/report/2018/08/21/heed-call/moral-and-legal-imperative-ban-killer-robots

[9] Additional Protocol I (1977), Articles 48, 51, and 52; ICRC, Study on Customary International Humanitarian Law, 2005, Rules 1 and 7.

[10] Dr Vincent Boulanin, Netta Goussac and Laura Bruun, Autonomous Weapon Systems and International Humanitarian Law: Identifying Limits and the Required Type and Degree of Human–Machine Interaction, SIPRI, 2021, Available at https://www.sipri.org/publications/2021/policy-reports/autonomous-weapon-systems-and-international-humanitarian-law-identifying-limits-and-required-type

[11] Stop Killer Robots, Report on Activities Convention on Conventional Weapons Group of Governmental Experts meeting on lethal autonomous weapons systems, United Nations, Geneva, 9-13 April 2018, https://www.stopkillerrobots.org/wp-content/uploads/2018/07/KRC_ReportCCWX_Apr2018_UPLOADED.pdf

[12] CCW Statement by South Africa at the Meeting of Experts on Lethal Autonomous Weapons Systems (LAWS) Geneva, Switzerland, April 2016, https://perma.cc/YHH2-H2QE

[13] Diplo, Africa’s participation in international processes related to AI, https://www.diplomacy.edu/resource/report-stronger-digital-voices-from-africa/africa-participation-international-processes-ai/#:~:text=Algeria%2C%20Djibouti%2C%20Egypt%2C%20Ghana,concerning%20Lethal%20Autonomous%20Weapon%20Systems. 

[14] Group of Governmental Experts on Emerging Technologies in the Area of Lethal Autonomous Weapons Systems. (2019). Report of the 2019 session. 

[15] Resolution on the need to undertake a Study on human and peoples’ rights and artificial intelligence (AI), robotics and other new and emerging technologies in Africa – ACHPR/Res. 473 (EXT.OS/ XXXI) 2021

[16] Votes against the First Committee of the UN General Assembly resolution on autonomous weapons, https://www.stopkillerrobots.org/news/164-states-vote-against-the-machine/

Author’s Bio

Swaleh Hemed Wengo is a Law Lecturer at Prince Sultan University (Saudi Arabia). He holds an LLM from Koc University (Turkey) and an LLB from Kampala International University (Uganda). He is also the Assistant Director of Programs at Firdaous Centre for Academic Excellence. His research Interests Include Public International Law, International Humanitarian Law & Human Right, Artificial Intelligence and Investment Law & Arbitration.

Email: swengo@psu.edu.sa

Linkedin: Swaleh Hemed

Twitter: @HemedSwaleh 

AAU-IHL Clinic Conflict in Africa, Protected Objects, Rules of Warfare

Fighting near Lalibela: Overview of the Protection of Cultural Property from the Effects of Hostilities

Author: Fekade Abebe

The Church of Saint George – one of eleven rock-hewn monolithic churches in Lalibela

On 8 November 2023, news of a fighting between the Federal Army, the Ethiopian National Defence Force (ENDF), and dissident militias popularly known as Fano in the historic town of Lalibela – Ethiopia, caused concerns for the safety of the churches of the town, following reports of firing of heavy weapons in the vicinity of the churches. There are reports that the churches sustained some damage (see here and here).

Bete Medhane Alem – an Orthodox underground monolith rock-cut church – Lalibela, Ethiopia

The Lalibela rock-hewn churches comprise of 11 churches carved out of monolithic blocks of rocks. Their construction is credited to the 12th century King, Lalibela, as ‘new Jerusalem’ as a site of pilgrimage and religious devotion. They are inscribed by United Nations Educational, Scientific and Cultural Organisation (UNESCO) as world heritage site in 1978. The Churches still hold a significant importance to believers of the Ethiopian Orthodox church and the cultural life of Ethiopians. 

Unfortunately, this is not the first time an armed conflict threatened the churches. There had been a similar concern in 2021 during the conflict with the ENDF and Tigray Defence Forces when the fighting entered the town. Besides Lalibela, cultural properties in the Tigray region, notably the obelisks in Axum and the historic mosque of Al-Nejashi, were similarly threatened and partially damaged, in the case of the latter. This trend calls into question the obligation of parties to a conflict under International Humanitarian Law (IHL) towards the protection of cultural property in Ethiopia’s latest conflict. This post briefly covers the applicability of IHL rules of conduct of hostilities in protecting cultural property in the current conflict in the Amhara Regional State and the implications of their application.

Developments leading to the conflict in the Amhara Regional State started over disputes over the order Federal Government to disband the Region’s paramilitary special forces and disarm the militias popularly known as Fano, who fought alongside the ENDF in the conflict in Tigray. This move was part of the terms of the Cessation of Hostilities agreement (CoHA) between the Federal Government and the Tigray Peoples’ Liberation Front (TPLF) in Pretoria on 2 November 2022, from whose negotiation the Militias were excluded. Opposing the move to disband, a significant portion of the special forces defected and joined the Fano and mobilised against the Federal Government. Following months of such mobilisation, fighting broke out in early August 2023 in several towns of the Region including the capital, Bahir Dar, and Gonder. 

The armed violence in the Amhara Regional State: Is there a non-international armed conflict (NIAC)?

Under IHL, for a conflict between state armed forces and armed groups or dissident forces to be considered a NIAC, it must reach a sufficient level of intensity, and the armed group or dissident group involved must exhibit a certain level of organisation (ICTY, The Prosecutor vs. Dusko Tadic, para. 70). While it is difficult to assess the fulfilment of these two requirements outright, the ICTY has forwarded indicative factors which help discern whether the intensity and organisation criteria are fulfilled. Accordingly, factors such as duration, number, and intensity of individual confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones are considered as indicative of the intensity of a conflict when considered as a whole. (ICTY, The Prosecutor vs. Ramush Haradinaj et.al, para.49). Similarly, factors such as the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of headquarters; the fact that the group controls a territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; the ability to plan, coordinate and carry out military operations, including troop movements and logistics; the ability to define a unified military strategy and use military tactics; and the ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords are considered as indicators of an armed group’s organisation for the purpose of IHL (Ibid, para.60). When the two thresholds are considered to have been fulfilled following an assessment based on the indicative factors, IHL of NIAC begins to apply to a situation of armed violence.

In the case of the current conflict in the Amhara Regional State, from the available information, it is possible to conclude that the conflict between the ENDF and the Fano meets the thresholds of NIAC. As documented by the Ethiopian Human Rights Commission (EHRC), fighting between the parties has been reported in the majority of the Region, testifying to the increased number of confrontations between the parties. (See also here and here) There have also been reports of the use of heavy weapons and drones by the ENDF, allegedly intending to target Fano fighters. Moreover, the number of Internally Displaced People (IDPs) has reportedly increased, with the EHRC reporting 3000 people being displaced from just one area of the Regional State. Moreover, the declaration of a state of emergency by the Federal Government could further suggest that situation is not of a generalised violence which a regular law enforcement operation could handle. These factors, taken together, indicate that the conflict has reached the necessary intensity threshold. 

Meanwhile, the reports of the fighting also indicate that the armed group (Fano) holds the capacity to coordinate and carry out military operations, as evidenced by attacks on a prison in Bahir Dar, repeated military operations to capture the major cities in the Region and attacks on police stations with the alleged purpose to capture weapons and ammunitions. Moreover, the protractedness of the violence in the Region, since August, is a testament to the intensity of the conflict as well as the ability of the Fano to engage in sustained hostilities. These factors, taken together, indicate that the Fano militias might have the necessary organisation for the purpose of IHL. Therefore, it is possible to conclude that the conflict between the ENDF and the Fano is a NIAC. As a result, both the ENDF and the Fano are obliged to respect Common article 3 of the Geneva Conventions and customary IHL rules. They would also have to abide by Additional Protocol II (AP II) to the Geneva Conventions applicable in NIACs to which Ethiopia is a party. Nevertheless, as of writing, there is no clear information that prove that the Fano militia exercise territorial control, a material condition necessary to determine the applicability of the Protocol. 

The Lalibela Churches and the IHL rules on the protection of cultural property in armed conflict

Ethiopia is a party to the Geneva Conventions as well as APII. Moreover, it is a party to the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict (Hague Convention) and its Protocol I but not a party to its Protocol II, adopted under the auspices of UNESCO to protect cultural property during armed conflicts. These instruments, taken together, provide the applicable rules protecting cultural property from the effects of hostilities during armed conflicts under IHL in the conflict in the Amhara region. 

Art.16 of AP II prohibits parties to a conflict from any act of hostilities towards ‘historic monuments, works of art, or places of worship which constitute the cultural or spiritual heritage of peoples.’ It, moreover, prohibits using such property in support of military efforts. The types of monuments or works of art mentioned under Art.16 are defined as cultural property under Art.1(a) of the Hague Convention, as a movable or immovable property of great significance to the cultural heritage of every people, including, among other things, religious monuments or groups of buildings which form historical or archaeological interest. This post adopts this definition. Given their listing as a World Heritage site by UNESCO and the significance they carry for the believers of the Ethiopian Orthodox Church as places of pilgrimage and devotion as well as to the history of Ethiopia, it is safe to conclude that the Lalibela rock-hewn churches fall under the ambit of Art.16 as well as Art.1 of the Hague Convention. 

Therefore, the prohibition established under Art.16 of APII extends to the rock-hewn churches of Lalibela in that they cannot be subject to attack as well as used for the military effort of a party to a conflict. However, the application of Art.16 is without prejudice to the provisions of the Hague Convention. The latter, on its part, obliges high contracting parties to respect cultural property situated in their territories by refraining from using ‘the property and its immediate surroundings’ for purposes which would likely expose it to destruction or damage during armed conflict (Art.4). Accordingly, the defence forces of a High Contracting Party must avoid placing their camps, bases or conducting their military operation or any other similar activities near such sites as this might put the cultural properties in danger of destruction or damage.  Moreover, under Art. 4 (1), the High Contracting Parties must refrain from directing an attack against a cultural property. As provided under Art.19(1), these obligations apply to NIACs. Hence, the parties to the conflict in the Amhara Region must not direct an attack against the churches or the site where they sit. 

However, the obligation to respect cultural property under the Hague Convention is not absolute. It can exceptionally be waived when required by imperative military necessity (Art.4(2)), though it does not specify the scope of this exception. This exception, though, should be seen as different from ‘military convenience’ and it presupposes that the party to a conflict must not have any other way of achieving the military objective sought. (O’Keefe, 2009, p.123) This is backed up by Art.6 of Protocol II of Convention. As Ethiopia is not a party to the latter, the obligation under art.6 will not be applicable as a matter of law. However, the inclusion of such provision shows the threshold of imperative military necessity must be higher than a mere ‘military convenience.’ To conclude this discussion, from the combined reading of the APII of the Geneva Conventions and Art.4 and Art.19 of the Hague Convention, it is possible to conclude that parties to a conflict in a NIAC are prohibited from directing attacks against a cultural property or using it to support the military effort in general unless such protection is waived for imperative military necessity. 

A potential challenge against the conclusion above is regarding the applicability of APII to the current conflict. Due to the uncertainty regarding the territorial control of the Fano, it is doubtful whether APII applies as it requires the organized armed group to maintain some level of control over territory, as per Art.1(1) of the Protocol. However, the protection of cultural property is, nonetheless, a customary IHL rule in a NIAC (Customary IHL, Rule 38(a)). Therefore, both the ENDF and the Fano must take special care in their military operation to avoid damage to the churches in their operations around the area. Moreover, customary IHL also prohibits both parties from using the churches for purposes likely to expose them to destruction or damage, such as placing military bases or camps or, in general, carrying out military operations near the churches (Rule 38(b)). As in the Hague Convention, this prohibition can be waived in the case of imperative military necessity. In such a case, the parties would still be bound by their obligation towards civilian objects such as the principle of distinction (Customary IHL, Rule 7-10), proportionality (Rule 14) and precaution in attack (Rule 15-21) as well as not placing military objectives near such objects. (Rule 22-24)

Not complying with the obligation to respect cultural property under AP II, the Hague Convention, and customary IHL entails a war crime under the FDRE Criminal Code. It provides, under Art.270 (j), that whoever organizes, orders, or engages in the targeting, destruction, or removal of cultural property such as the Lalibela churches, as well as rendering them useless or uses them to support their military effort commits the war crime and is punishable with rigorous imprisonment from five years to twenty-five years or in more severe cases, including life imprisonment or the death penalty. This provision does not mention ‘imperative military necessity’ as an element of the crime. As such it invites a question of whether ‘imperative military necessity’ would serve as a defense for any one accused of war crime under this article or whether it can be read together with the provisions of APII, and the Hague Convention. These questions would be a fascinating topic to investigate in another contribution.

Conclusion

The reading of the relevant IHL rules on the protection of cultural property and the specialized rules in the UNESCO instruments clearly show there is a special protection granted for monuments of great significance such as those of Lalibela rock-hewn churches. However, their protection under these instruments is not absolute as they are subject to the ‘imperative military necessity’ exception. However, as such term is not clearly provided, it leaves it open to attempts by parties to circumvent it. Going forward, strengthening the protection of cultural property during armed conflicts in Ethiopia requires as a first step the adoption of Protocol II of the Hague Convention which provides a better legal framework of protection. It, among other things, limits the instances where ‘imperative military necessity’ exception could be invoked, provides a specific precautionary obligation on parties to a conflict and creates a system of ‘enhanced protection.’   

Author’s Bio

Fekade Abebe is a PhD candidate in International Law at the Graduate Institute of International and Development Studies. He has an LL.M in International Humanitarian Law and Human Rights from the Geneva Academy of International Humanitarian Law and Human Rights, and an LL.M in Public International Law from Addis Ababa University, Ethiopia.

AAU-IHL Clinic Migration and Displacement

The New Collateral: A New Hope for Migrants in Ethiopia

Author: Yoseph Genene – LLB, AAU

Everyone has the right to recognition everywhere as a person before the law. And this right is not subject to exceptions and is non-derogable even in times of crisis. Natural disasters, armed conflicts and other predicaments will result in humanitarian catastrophe. As we are currently observing countless crises destabilizing the world, numerous populations leave their homes looking for a safe place. More people than ever are fleeing their homes from conflict and disaster resulting in in more than 108.4 million worldwide displacement.  In this process some manage to leave their country and enter into another country while others escape to a different place within a border. 

The Ethiopian Refugee Proclamation Art 5, which integrated the  definition under  the OAU convention as well as the UN refugee convention defines refugees as those who have been forced to flee their country because of external aggression, occupation, foreign domination or events seriously disturbing public order  and has well-founded persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group and  most likely, they cannot return home or are afraid to do. 

While, persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflicts, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border are called Internally Displaced Persons (IDPs). Globally, there are more than seventy one million IDPs which is roughly equivalent to the population of Thailand. 

This blog post adopts IOM’s definition of migrants encompassing both refugees and IDPs, and which defines “Migrants”as an umbrella term, not defined under international law, reflecting the common lay understanding of a person who moves away from his or her pace of usual residence, whether within a country or across an international border, temporarily or permanently, and for a variety reasons.  

Photo Credit: IOM 2023, available at https://sudan.iom.int/news/over-1000-daily-arrivals-sudan-ethiopia-iom-data

Grappling with the different challenges due to internal and regional complexities, Ethiopia is similarly affected by the situations of Migrants. Ethiopia is a host to more than 930,000 refugees and asylum seekers, which makes it the third largest refugee hosting nation in Africa. Migrants in Ethiopia face a multitude of challenges that include deprivation of adequate shelter, food and health services, lack of opportunities to rebuild their livelihoods, protection risks, wider security concerns. When individuals experience displacement, they frequently lose or leave their personal identity papers, marriage certificates, birth certificates, academic or professional records and certificates and face difficulties in accessing them or approaching authorities for replacements. Armed conflicts and natural disasters can also result in the destruction of official records and archives. Sub-groups of migrants, such as women, minorities, or indigenous communities, may encounter specific challenges, as their civil status or rights were not as extensively documented as those of other citizens even before displacement. In practical terms, individuals often need to prove their identity or legal status as a prerequisite for exercising rights or receiving entitlements. However, due to limited or no access to such documentation, migrants may confront arbitrary restrictions on their rights in displacement settings. 

Local integration has been considered to serve as one durable solution for Migrants in such a situation by allowing them to settle in the host community. This process provides legal status, access to basic services, and opportunities for employment. Through local integration, Migrants become part of the host community, contributing to social cohesion and stability. This solution involves the recognition of legal status, enabling access to essential services such as education, healthcare, and employment. The goal is to facilitate the full inclusion and participation of refugees and IDPs in their new communities.

In this context, having an identification document (ID) is closely linked to legal recognition, access to services, employment opportunities, protection of rights, and social inclusion. The possession of a recognized ID is essential for individuals to access various rights and basic services within the host community, including education, healthcare, and employment. Having such a formal identification document serves as evidence of legal status, preventing arbitrary detention or deportation and promoting the full participation and inclusion of refugees or IDPs in their new communities.

Ethiopia, as a party to both the OAU convention and the UN refugee convention, and in accordance with the FDRE refugee proclamation, is obligated to provide administrative support, identity papers and travel documents to refugees. A step in fulfilling such an obligation is taken with the adoption of the recent National ID program by Ethiopian Digital Identification proclamation no.1284/2023.

Sample of the Ethiopian Digital ID Card

With its motto “identity is the new collateral”, it marks a significant stride toward inclusivity by removing barriers of inclusion of citizens and non-citizens (legal residents) and making national IDs accessible to individuals who can provide any type of acceptable evidence including an appropriate witness/es that can attest on the individual’s behalf called ‘introducer’. Additionally, the FDRE Refugees and Returnees Service, National ID Program – Ethiopia, and the UN Refugee Agency Ethiopia Office, came together to sign a special agreement aiming to make it easier for refugees to access important services like healthcare, education, banking, and driving, among others. Moreover, the National ID program executive director announced the commitment to extend the program for IDPs as part of the inclusion program.

Potential concerns may arise with the stipulation of legal residency as a prerequisite for participation in the inclusion program. This requirement poses a potential threat to the program’s efficacy, given the possibility that Migrants may not establish residence in a specific location for the mandated minimum duration of three months, as stipulated by Article 175 of the Civil Code, as referenced in the National ID proclamation. 

The other concern is regarding privacy and data protection concerns. The National ID proclamation contains important data protection and privacy provisions in its fourth section. By incorporating the principle of data minimization, right to rectification, the right to be forgotten and other fundamental privacy principles; the proclamation provides that any authentication process under the digital identification system shall be done with the consent of the registrant. The information collected can be collected, disclosed, published, and can be transferred to a third party by anyone or a law enforcement body only with the registrant consent. However, it can be disclosed for the relevant legal entity authorized by law or court order without the registrant consent. In this regard, a concern worth mentioning will be the handling of biometrics data that includes personal information of refugees. Particularly, refugees flee persecution and their persecutors might track them using the data as they are communities escaping unsafe conditions, there has to be a balance between centralization of data and the right to privacy. With the absence of a national data protection governance (Draft Data Protection proclamation is approved by the Council of Ministers and waiting for HPR`s decision to be legislated), there has to be sector based and case-by-case restrictions on the use of biometrics and personal data of the data subjects. This needs to be accompanied by robust technological and legal safeguards to protect the right to privacy of individuals, particularly refugees and IDPs. Considering the novelty of the program, it can be improved through practices and emerging developments. 

The measure taken by the National ID does not suggest that migrants no longer need any form of assistance or support. Rather, it signifies that the needs of migrants are not distinct from those of the non-displaced population, which might still necessitate interventions by development and human rights actors. Enabling durable solutions necessitates different but collaborative efforts among various stakeholders including national and local authorities, as well as humanitarian and development entities. In the end, inclusive approach towards migrants with the possibility of a lasting resolution could ensure the attainment of long- term peace, stability, recovery and reconstruction in nations like Ethiopia. 

Author’s Bio

Yoseph Genene – LLB, AAU. MA student of Peace and Security Studies at AAU, IPSS. CSO-Lab program Mentee at Civil Society Resource Center (CSRC). Interested in Human Rights, Migration, and Peace and Security Can be reached at geneneyoseph@gmail.com

AAU-IHL Clinic Tigray related, Women Affected by Armed Conflict

Inclusive National Dialogue and Accountability for sexual crimes are central to the path out of the current crises in Ethiopia

By: Dunia Mekonnen Tegegn

Image source:Eduardo Soteras/AFP via Getty Images

Due to the conflict in Ethiopia, women and girls continue to bear the brunt of the cruel and inhuman acts committed by all parties involved in the conflict for the last 16 months. Many have lost their lives, suffered sexual violence, displaced, and starved. Women living with disability, older women, and refugee women have been the target of brutal sexual violence. These crimes are horrific in nature as they represent the level of vengeance and humiliation pursued by actors in the conflict. Reports have highlighted the extent of these violations and implicated all sides to the conflict in war crimes and crimes against humanity.

In the Tigray region of Ethiopia, Ethiopia’s National Defense Force, Eritrean Defense Force as well as Amhara Special Force and its allied militia committed widespread sexual abuse against Tigrayan women. In the initial stages of the conflict, rape cases were reported in Mekele, Ayder, Adigrat, and Wukro hospitals of Tigray. Investigations on human rights in Tigray indicate that Tigrayan women were subjected to attempted rape, gang rape, oral and anal rape, and insertion of foreign objects into the vagina; in addition, they were subjected to ethnic slurs and degrading comments. They were also exposed to unwanted pregnancy and sexually transmitted diseases. Access to humanitarian aid including access to sexual and reproductive health services remains a challenge. Sexual violence was used as a weapon of war and as a deliberate strategy to terrorize, degrade and humiliate the victims. In the most hideous way, Eritrean women and girls fleeing persecution in Eritrea were raped by members of Eritrean Defense Forces and forces allied to the Tigray People Liberation Front in the Tigray region of Ethiopia where they sought refuge. To date, women who were impacted by the conflict continue to be the subject of abduction while on the move.

The number of women who are subjected to sexual violence augmented when the conflict expanded its horizon to the Amhara and Afar regions of Ethiopia. In these two regions, Tigrayan forces committed widespread sexual violence against Amhara and Afari women and girls. In Nifas Mewcha, vicinity of the Amhara region of Ethiopia, women were raped for a nine-day period. Women were subjected to gang rape including in front of their children, physically assaulted, called names and degraded with ethnic slurs, impregnated by their rapists, and suffered mental health problems including anxiety and depression. They were also robbed and deprived of their source of income. Women were unable to access comprehensive post-rape care, including emergency contraception, post-emergency prophylaxis for HIV and sexually transmitted infections. In these two regions, Tigray Defense Forces used sexual violence to demoralize, dehumanize and punish communities. Sexual violence was used in a more premeditated and organized manner arbitrarily but also selectively for combat purposes.

Due to the nature of this crime, the tendency of survivors coming forward with what happened to them in the current context of Ethiopia is limited. There is a likelihood of under-reporting because of the nature of the Ethiopian polity where patriarchy is the dominant view.

Violations of Women’s Human Rights 

Conflicts exacerbate deep-rooted inequalities in any country. The gender discrimination women and girls are subjected to in a society amplifies their victimization during the conflict. Outside conflict, women in Ethiopia faced gender-based violence including marital rape and other evolving forms of violence such as acid attacks, gang rape, and abduction. In Ethiopia, the male is the acknowledged master of his family. Marriage is viewed as a means of strengthening the link between families and ethnic groups. Thus, the role of women in society is that of cementing family ties through bride-wealth and producing children. The cultural perception of women as the property of men has led to a situation where all actors in the conflict used rape as a weapon.

Ethiopia’s constitution provides full and equal dignity for women under articles 25 and 35. Ethiopia’s revised criminal code also provides explicit prohibition of violence against women and girls including rape.  All members of the African Union including Ethiopia are bound to respect the rights protected under the African Charter on Human and People’s Rights. Article 5 of the African Charter prohibits all forms of exploitation and degradation including, slavery, slave trade, torture, cruel, inhuman, or degrading punishment and treatment. Interpretations provided by the African Commission on Human and People’s Rights have directly referred to the application of Article 5 not only to physical and psychological harm but also to the protection of women from sexual violence during armed conflict. As a result of the conflict, Ethiopian women and girls were deprived of the protection they are bestowed with.

It is important to understand that sexual violence is not and should not be considered as an unavoidable outcome of any conflict. It is a crime that is preventable and punishable under International Human Rights Law, International Criminal Law, and International Humanitarian Law. Ethiopia is a party to the Convention on the Elimination of Discrimination against Women (CEDAW). Article 1 of CEDAW defines discrimination against women to include gender-based violence which is violence directed against a woman because she is a woman, or because it affects women excessively. In the context of this definition, rape during conflict is discrimination against women directed at them because of their gender.

CEDAW does not allow States to derogate from Convention obligations during periods of conflict or public emergency. State obligations linger during such periods, including due diligence obligations to prevent, investigate, punish and ensure remedy. Under the convention, state parties are also required to control the activities of domestic non-State actors within their jurisdiction. States also have an obligation to regulate non-State actors under the duty to protect, so they exercise due diligence to prevent, investigate, punish and ensure reparation for the acts of non-state actors. By depriving women of these protections, all actors in the conflict: Ethiopia’s Defense Forces, Eritrean Defense Forces, Tigray People Liberation Front, and allied militia, and Amhara Defense Forces and allied militia committed war crimes. In elaborating on article 2 of CEDAW, General Comment 30 clarifies the application of the Convention to situations of armed conflict including complex peacebuilding and post-conflict reconstruction processes. It outlines the content of the obligations assumed by state parties and further highlights the obligations of non-State actors such as the Tigray People Liberation Front and allied militia and that of Amhara Defense Forces and allied militia. Although these actors cannot become parties to women’s rights instruments in general, in the context they exist in Ethiopia, they have an identifiable political structure and exercised significant control over territory and population during the conflict. Hence,  they are indebted to respect international human rights laws.

On top of the obligations discussed above,  as far as article 12 of CEDAW on adequate standard of living is concerned, General Comment 30 of CEDAW states that state parties have an obligation to ensure psychosocial support; family planning services, including emergency contraception; maternal health services, including antenatal care, skilled delivery services, prevention of vertical transmission and emergency obstetric care; safe abortion services; post-abortion care; prevention and treatment of HIV/AIDS and other sexually transmitted infections, post-exposure prophylaxis including care to treat injuries such as fistula. Under the International Covenant on Economic Social and Cultural Rights (ICESCR), which Ethiopia ratified in 1993, pregnant women have the right to health and essential health services that are free when necessary as part of their right to the highest attainable standard of health. The documented limitations on access to essential health care services in conflict-affected regions of Ethiopia are tantamount to violation of both the CEDAW and the ICESCR.

The Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (The Maputo Protocol) which was ratified by Ethiopia on July 18, 2018, elaborates on the right of women to security. The Maputo Protocol protects women from the violation of their human rights both during peacetimes and conflict times. The protocol also calls on states to protect women seeking asylum and refugee status in their territory. In the context of the conflict in Ethiopia, Eritrean refugee women’s right was violated when members of Eritrea’s Defense Force and Tigray Defense force subjected them to sexual violence.

Article 11(2) of the Maputo Protocol further underlines that women in whatever ethnic group they belong to in a conflict should be provided civilian protection. In utter disregard of this, women belonging to diverse ethnic groups: Tigray, Amhara, Afar were subjected to sexual violence. Ethiopian National Defense Force, Eritrean National Defense Force, Tigray People Liberation Front, allied militia, and Amhara Defense Force and allied militia violated the right of each individual woman to be recognized as a civilian and be provided with such protection.

Impacts of the conflict on women and girls

In addition to the widely reported sexual violence, restricted humanitarian aid, food, access to the internet particularly in Tigray negatively impacted survivors of sexual violence. The lack of medical supplies and trauma kits further characterizes the dire situation in all regions the conflict took place. As investigations indicate, in all places the conflict took place, women who were raped were physically abused and experienced mental health problems. A significant number of girls were also forced to leave their schools early. Access to lifesaving aid including treatment for HIV and STD transmission, contraception, post-exposure prophylaxis as well as psychosocial programs continue to be limited in Tigray. These problems spread widely to the Afar and Amhara regions of Ethiopia after the conflict expanded its reach to these places. Women’s livelihood and sources of income were highly impacted due to the conflict as many women were forced to abandon them.

Researches discussing justice for women impacted by conflicts underline that women who survive rape experience trauma and are usually stigmatized by their own communities. As a result, many women could be reluctant to report rape. Limited safe spaces for women and girls also added misery to the negative experience women and girls had to go through as a result of the conflict. 

A significant number of Tigrayan women who were subjected to sexual violence fled to Sudan, where the conditions of women particularly in Darfur, the Nuba Mountains, and along the Blue Nile are still impacted by the prolonged civil war and ongoing governance challenges. An increase in the number of women who migrated to neighboring countries including Sudan was documented after the conflict expanded its reach to Amhara and Afar.

Calls to actions

As it stands now, Ethiopia’s priority should be its people, the majority of whom are women and girls. The plight of women and girls can only be addressed through broader efforts including effective law enforcement, swift corrective and accountability measures, and a sit down with all concerned actors. It is also important that Ethiopia’s post-conflict justice priorities for women and girls focus not only on civil and political rights but also on economic, social, and cultural rights. 

In the short run, the following critical actions need to be taken

  1. End the pain and suffering of women, and girls through pledging for unconditional ceasefire, and arms embargo; design effective disarmament, demobilization and reintegration processes and ban arms proliferation in the different regions of Ethiopia;  
  2. Take appropriate legal and institutional measures to protect women and girls at risk of sexual violence, including internally displaced and refugee women belonging to affected  ethnic groups;
  3. Take appropriate legal, institutional, and financial measures to ensure the provision of comprehensive services for survivors of sexual violence including but not limited to medical, psychological, and social services necessary for their rehabilitation and reintegration with their community;
  4. Establish multipurpose community centers that link immediate assistance to economic and social empowerment and reintegration, and mobile clinics in places where the conflict ensued;
  5. Mitigate the costs of the war on women and girls through collaboration with civil society.
  6. Avail women’s rights defenders and experts working with survivors of sexual violence with counseling sevices and on job trainings to help them cope with stress and trauma. 

In the long run, the following actions need urgent attention

  1. Collaborate with local and international fact-finding missions to ensure that all perpetrators of sexual and other violence against women during the conflict are properly identified and prosecuted;
  2. Build the capacity of the judiciary in Ethiopia including in the context of transitional justice mechanisms, to ensure its independence, impartiality and integrity including through technical cooperation with experts in the area. If and when possible, constitute a separate adhoc commission that can adjudicate cases of sexual violence, and design non-judicial remedies such as truth commissions and reparations;
  3. Protect women’s rights defenders from State or non-State attacks that undermine their equal and meaningful participation in political and public space;
  4. Ensure that legislative, executive, administrative and other regulatory instruments do not restrict women’s participation in the prevention, management and resolution of the conflict. Increase the number of women commissioners under the newly established Commission for  National Dialogue;
  5. Promote inclusion and transparency under the National Dialogue Commission. Constitute an advisory committee for the the newly established Commission for  National Dialogue and include survivors of sexual violence in the discussions;
  6. Plan specific interventions to contribute to opportunities for women’s economic empowerment including through promoting their right to education.  

Dunia Mekonnen Tegegn is a Human Rights Lawyer and Gender Equality Advocate.She has previously worked as a Human Rights Officer in Addis Ababa in the Africa branch of the UN High Commissioner for Human Rights. She also worked as a Program Officer on Ending Violence against Women and Girls at UN Women and as an Alternative Care Expert with UNICEF. Dunia holds a Master of Laws in National Security from Georgetown University Law Center and is a member of the Pan African Lawyers Union (PALU), the Ethiopian Bar Association, and the Ethiopian American Bar Association in Washington DC.

AAU-IHL Clinic Tigray related

Alliance between Armed Groups and the Effect on Classification of Conflicts: a Focus on the TPLF-OLA Alliance

Author: Marishet M. Hamza

Photo Credit: https://lindro.it/ethiopia-tplf-unexpected-counter-offensive-in-tigray/ and https://www.aberfoylesecurity.com/?p=2344

Factual Background 

Recently, the Oromo Liberation Army (OLA), an armed group operating in the Oromia region of Ethiopia, and the Tigray Liberation Front (TPLF),the rebel group in the ongoing non-international armed conflict (NIAC) in Tigray, have announced their alliance that is aimed at making military cooperation in the  fight against the government of Ethiopia. . 

OLA, also known by the government as Shene group, is the breakaway faction of the Oromo Liberation Front (OLF), a political party that had been fighting against the government until it returned to peaceful political struggle in 2018. OLA is formed by a, a faction that broke away from the OLF’s military wing. It has been fighting against the government mainly in the western and southern parts of Oromia region. 

In May 2021, the federal government proscribed both TPLF and OLA as terrorist groups.

OLA military activities

Very little is known about the organization and functioning of OLA. The number of fighters it has, its military capabilities, and whether it has control over territories is not clearly known. Also, less is known about its military engagement. Whereas the government accuses OLA of waging heinous attacks against civilians and local administrators. For instance, according to the government, in 2020/21 alone OLA killed 463 people including civilians, police officers, local militia members and local government leaders. The group is also blamed for destroying civilian properties. Although such facts might indicate a certain level of intensity of the violence OLA engaged in, OLA nonetheless vehemently denies those accusations. Overall, despite reportsthat suspect the involvement of members of OLA in the alleged atrocities, the information available remains inconclusive.

Classification of the conflict 

Under International Humanitarian Law (IHL) a  NIAC exists if the armed group involved has a modicum of organization and the violence is sufficiently intense (ICTY, Prosecutor v. Dusko Tadić, 1995, para.70). These two thresholds – of organization and intensity of violence – have to be met for IHL to apply to an internal conflict. 

The paucity of information on the organization of OLA and the nature of the violence it has engaged in obscures establishing whether the two thresholds are met and determining the existence of a NIAC between OLA and the government forces. 

Indeed, as crystallized by the ICTY jurisprudence, the thresholds of organization and intensity of violencecould be discerned from other indicative factors such as control over territory by an armed group or where the government is obliged to use military force against insurgents instead of regular police forces, respectively. Also, declaration of a state of emergency or derogation from human rights obligations could be considered in assessing the thresholds (Sivakumaran, 2012, p.168)

Though the two thresholds ‘must be present cumulatively’, inference can be drawn from one to the other; for instance, the existence of a ‘highly intense hostility’ may indicate the level of organization (Updated Commentary GC III, para.468).

In its fight against OLF, the Ethiopian government deployed the national defence force and the Oromia Special Police Force (a regional paramilitary force). There is also a de facto  state of emergency in the western and southern districts of Oromia where OLA actively operates. These facts, along with the casualties and destruction as mentioned above are of some help to discern the intensity of violence and might also shed some light on the organization of OLA. Whereas considering the sporadic nature of the violence, OLA’s vehement denial of involving in the casualties, and lack of concrete information that could indicate the ‘highly intense’ nature of the violence so far, it remains difficult to conclude that OLA possesses the requisite level of organization. That, in turn, makes the available facts inconclusive to prove the existence of a NIAC based on the bilateral belligerent relationship between OLA and the government forces.

The effect of the TPLF-OLA alliance 

As mentioned at the outset, the conflict in Tigray between TPLF and federal government forces is a NIAC. It is taking place in the northern part of Ethiopia. Whereas OLA is fighting predominantly in the southern and south-western parts. Though the two conflicts are geographically apart and involve two different rebel groups, the armed groups have a common enemy, i.e., the federal government. Now, the rebels have agreed to ally their forces against their ‘common enemy’. 

Conventionally, the thresholds of NIAC are assessed in each bilateral belligerent relationship between parties to a conflict. However, recently, the ICRC and some scholars have suggested aggregation of the level of violence where two or more organized armed groups form a coalition (ICRC  Report, 2019; Kleffner, 2019). In such circumstances, the threshold of intensity can be assessed on the cumulative violence caused by the armed groups in the coalition provided that the conflict occurs in ‘a geographical and temporal continuum’ (ibid). According to other commentators as well, when organized armed groups join forces  for common purposes or against a common enemy in a geographical and temporal continuum, the level of intensity can be assessed on the aggregated violence (Nikolic et al, 2020; and Chiara, 2021). The baseline to these formulations is that each armed group involved in the conflict must individually meet the threshold of organization. It should also be noted that this new approach is more relevant in the context where the existence of a NIAC is not yet established as regards any of the allied groups. 

In our case, TPLF and OLA regard the government as their common enemy, and militarily overthrowing the government is their shared goal. Arguably, the temporal and geographical considerations might also be proven; particularly, considering the government’s allegation that OLA fighters are spotted in the conflict in Tigray as well as TPLF military personnel are providing training to the OLA. Then again, since there is no conclusive information on the organization of OLA, it will remain difficult to establish a NIAC following the formulation above. In other words, this entails a conclusion that while IHL applies to the conflict between the federal government forces and TPLF, it will not apply to the conflict with OLA. 

In my opinion, such a tricky conclusion will rather lead to a conundrum. For instance, from the perspective of the government, considering the alliance between the belligerent groups, it is infeasible to expect that the government will apply only the law enforcement paradigm with OLA while applying both the law enforcement and conduct of hostility paradigms with TPLF. 

Such intricate circumstances require finding a pragmatic solution that reflects reality. To that, one need to reconsider and give weight to the following facts. On the one hand, there is already an ongoing NIAC between TPLF and the government. On the other hand, though sporadic, OLA has already engaged in active hostilities. Now, the TPLF-OLA alliance is struck to support each other and defeat the government. In view of these, it is important to give weight to the support-relationship the alliance brings about and its implications on the nature of the conflict between OLA and the government. 

In conclusion, considering the military alliance along with other facts as mentioned hereinbefore, that should now be sufficient to trigger the applicability of IHL to the conflict between OLA and the government. 

Author’s Bio

Marishet M. Hamza is a Ph.D. Student at the International Law Department, Graduate Institute of International and Development Studies, Genéve

AAU-IHL Clinic Rules of Warfare, Traditional Values in Warfare

Does International Humanitarian Law reflect African customs and traditions? A spotlight on the ICRC’s Tool on African values in war

Autor: Sarah Jean Mabeza

Image Credit: The IHL Customary Law Tool, ICRC

Is International Humanitarian Law (IHL) a Western concept?  This is a question that causes me, as an African IHL practitioner, great cause for concern, as I am convinced of the universality of this body of law.  But I must admit that while my answer to the question would be an adamant “no”, I do not blame those who ask it.  I recall the experience of a colleague who, attempting to convince a Chief in the Pacific Ocean Islands to ratify the 1949 Geneva Conventions, was asked by the Chief “but where is Geneva?” and “what is a convention?”.[1]  This story has always perturbed me, and as an African, I have wondered about the level of ownership over this important body of law from my own continent.

This lack of ownership could, to a certain extent, be understood.  Firstly, the codification of IHL was led by a select few States and centred in the West.[2]  Secondly, African States rarely benefited from the application of principles of IHL, both during the wars of colonization and decolonization on the continent.[3]  And yet despite this, reasons for increased African ownership of IHL exist. The aim of this contribution to is highlight just one of those reasons – the historical relationship that exists between Africa and the law of war.  Indeed, many African cultures have for decades, if not centuries, contained practices that share humanitarian values with modern day IHL provisions. 

In mid-2021 the ICRC launched a Tool to highlight the link between African traditions and customs and modern-day IHL – the ‘African Values in War Tool on Traditional Customs and IHL’.[4]  The tool is the product of a number of years of research into the values underpinning African customs concerning warfare, and is unique in that it collates practices from across the continent that reflect some of the fundamental principles of IHL.  According to one of the legal advisors who worked on the Tool, its purpose is “firstly to contribute to current debates on relevance of IHL to Africa; and secondly to increase understanding and acceptance of IHL rules on the African continent”.[5]  Overall, the ICRC hopes that this Tool may contribute to increased awareness of IHL and improved compliance with the body of law, which may then in turn ultimately contribute towards the reduction of suffering during times of armed conflict.    To illustrate its value, listed below are four of the collected traditions and customs that are geographically representative of the continent:

  • The Tallensi tribe in Ghana considered attacking, looting and pillaging of civilian property a violation of their dignity and a dishonourable act to be avoided; and the traditional rule which regulated the behavior of the Kamajors of Sierra Leone in warfare included the prohibition on looting villages.  These customs reflect the modern-day principle of IHL which states that pillage is prohibited.[6]
  • In the Oronn district in Nigeria when one town decided to go to war against another, two men were sent to lay a plantain leaf upon the road entering the town, signaling an official declaration of war and warning civilians of impending hostilities.  This practice reflects the modern-day principle of IHL which states that effective advanced warning of attacks which may affect the civilian population shall be given, unless circumstances do not permit.[7]
  • In Somalia it was strictly forbidden to desecrate the bodies of the enemy dead or take their possessions for personal gain.  This tradition reflects the modern-day principles of IHL which state that each party to the armed conflict must take all possible measures to prevent the dead from being despoiled, and that mutilation of dead bodies is to be prohibited.[8]
  • As a final example, Maasai warriors in Kenya wore distinctive armbands to distinguish themselves from the civilian population.  This reflects the modern day principle of IHL which states that in order to promote the protection of the civilian population from the effects of hostilities, combatants are urged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack.[9]

Despite the clear links between the traditional practices mentioned above and contemporary principles of IHL, there is not always a direct correlation between the two.  For example, many of the traditional customs collected come from contexts of non-international armed conflicts, whereas some of the IHL principles referenced apply only in international armed conflicts.  Yet the value of the Tool lies in the fact that it provides clarity and confirmation that the rules contained in modern IHL are not foreign concepts in Africa.  

Does IHL reflect African customs and traditions?  To a certain extent, yes.  The Tool will need to be extended and updated in order to answer that question clearly, but for now, it certainly points to the existence of African values in war, which are reflective of contemporary principles of IHL.  As an African IHL practitioner, this gives me hope.

Image Credit: The IHL Customary Law Tool, ICRC

[1] Email exchange with Helen Durham, International Law and Policy Director, International Committee of the Red Cross; 17.08.2021.

[2] To illustrate, all of the 12 countries that signed the 1864 Geneva Convention at the conclusion of its negotiation were European.  See https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_treatySelected=120 (accessed 17.08.21).

[3] This contribution will not focus on the above-mentioned criticisms of IHL in Africa.  For more analysis on that topic, see G Waschefort, “Africa and international humanitarian law: The more things change, the more they stay the same”, International Review of the Red Cross, 2016, 98 (2), p. 603.

[4] ‘African values in war: A Tool on traditional customs and IHL’, https://www.icrc.org/en/document/african-customs-tool-traditional-customs-and-ihl (accessed 16.08.21).

[5] Interview with Tamalin Bolus, Legal Advisor, Pretoria Delegation, International Committee of the Red Cross; 12.08.2021; Pretoria, South Africa.

[6] See GC IV Art. 33(2); AP II Art. (4)(2)(g) and CIHL Rule 52. 

[7] See AP 1 Art. 57(2)(c) & CIHL Rule 20.  

[8] See for example GC I Art. 15(1); GC II Art. 18(1); GC IV Art. 16(2); AP I Art. 34(1); AP II Art. 8 & CIHL Rule 113.  

[9] See AP I Art. 44(3) & CIHL Rule 106. 

Author’s Bio

Sarah J Mabeza, ICRC Regional Legal Advisor, Pretoria Delegation, International Committee of the Red Cross; LLB (UKZN), LLM, Human Rights and Democratisation in Africa (CHR, UP); sarah.mabeza@outlook.com.  

The views expressed are those of the author and do not necessarily represent those of the ICRC.  

AAU-IHL Clinic Uncategorized

Looking Back to Old Laws and Customs of War in Ethiopia: Establishing Groundwork for Further Research

Authors: Eyuel Zelalem and Michael Mengistu

Painting by:

Studying the history of existing laws helps in understanding its relationship with its subjects. When it comes to International Humanitarian Law (hereafter IHL), it is equally important to understand the laws and customs of war of the past to understand the contemporary normative rules of war. In this regard, there is a well-established research in the history of the laws and customs of warfare in Europe where the modern humanitarian laws emerged. Researches on traditional rules of warfare in some African States such as Somalia have also been carried out by the International Committee of the Red Cross. However, very little is known about old laws and customs of war in Ethiopia. This blogpost explores the Ethiopian experience to motivate readers to conduct further research on the issue. It does so by first discussing the laws and customs of war that existed in Europe and other civilizations that flourished in various parts of the world such as the Pacific Islands and Africa. 

Laws and customs of war in Europe, the Pacific Islands and Africa before the 19th century

Due to the recurrence of war and violence in ancient times, long before the development of modern international legal and institutional framework for IHL, societies had to come up with limitations on the conduct of war which is often called “cultural regulation of violence”. These self-imposed codes of conducts/limitations of war originate from cultures of the war-making societies.[1] When it comes to Europe, these limitations, having their roots from the codes of chivalry and rules of Christendom, were existent since ancient times.[2] For example, Western scholars in European medieval and classical period were concerned with defining what a just war (Jus ad bellum) was and developing the principles of just war which are still applicable to this day.  

In general, having a look at the development of the laws and customs of war in Europe point to three principles that contributed to its growth. First, the principle that a belligerent should be justified in applying force which is necessary for the realization of the purpose of war.[3] Second, the principle of humanity at work which says that all such kinds and degrees of violence which go beyond overpowering the opponent should not be permitted to a belligerent person.[4] Third and lastly, the principle of chivalry which arose in the Middle Ages and introduced a certain amount of fairness in offence and defense, protection of non-combatants from pillages, and a certain mutual respect.[5]

The origins of these principles, however, are not confined to Europe but were also evident as the customs of war of other ancient civilizations. Ancient civilizations such as the pacific societies had imposed limitations on the conduct of war that resembled the modern principles of IHL.[6] For example, the Fijian society used weapons as a means of attack only when “this was deemed necessary upon provocation”.[7] Similarly and interestingly, African tribes that lived in the present days of Ghana, Somalia, and the Sahel region had traditional customs of war that were almost similar to the rules of IHL under the Geneva conventions.[8] Were there similar laws and customs of war in Ethiopia?

Laws and customs of war in Ethiopia before the 20th century

Ethiopia is a party to the four Geneva Conventions on the laws and customs of war and the additional protocols to the Geneva Conventions. However, very little is known about the rules of war that used to exist in Ethiopia before the ratification of these Conventions in 1969. In order to understand the rules of war that existed in the country before the 20th century, we believe that researchers need to look at the history, governance systems, and laws – both customary and written – of the various civilizations that flourished in Ethiopia. Accordingly, the first document that should be studied to understand these laws and customs of war, we believe, is the Fetha Negest (Law of the Kings) since it served as the law of the courts of the Emperors of Ethiopia who had the final say in all matters including warfare and justice. 

The Fetha Negest says little on the rules of warfare. However, it tries to govern some aspects of war in a haphazard manner such as the treatment of captives of war. For example, it states: “At the beginning of creation, all men were free. But war and raids bring them to serve others, since the law of war is that conquest makes the conquered slaves of the conqueror”.[9] This reads as if the rules of war in the courts of Ethiopian emperors were opposed to the laws and customs of war that we have now. But can we reach conclusions about the old laws and customs of war in Ethiopia based on the Fetha Negest? Albeit the fact that the Fetha Negest incorporated such kinds of provisions, research show that customs of war that resembled contemporary normative rules of armed conflict existed in Ethiopia. For instance, Donald N. Levine wrote that during the Gondarine period (1632 – 1769 AD):

[The] Echage Bet [of the Ethiopian Orthodox Church] was reserved for the … monk who served as administrative head of the Church. […] The Echage Bet and the church compounds were considered sanctuaries and thus, in theory at least, were secure from plunderers. The Gondares and wealthy people from the country used these areas as a safety vault for their valuables.[10]

This customary understanding of the rules of war is in line with today’s customary international humanitarian law protection of religious buildings from military attack. In addition, according to Nega Ewnetie, some Emperors of Ethiopia even tried to reform the rule of the Fetha Negest that concerned captives of war in favor of humanitarian concerns. For instance, Emperor Tewodros II (1855-1868 AD) tried to abolish the practice of selling captives of war into slavery.[11] He also mentions that Emperor Tewodros’s court decisions over war related cases considered aspects that we have under normative IHL rules.[12] Moreover, if we turn to Western Ethiopia, we will find that  the Nuer of the Gambella region observed a rule of war that protected villages which are “home” to Nuers’ god of war, Wiw, from forceful eviction even if the dwellers of the villages were defeated in battle.[13]  As a result, there may have been a mix of modern and old understandings of the laws of warfare, at least in some parts of Ethiopia, before the ratification of the Geneva Conventions. Nevertheless, further research on this issue is needed to bring a clear understanding about the history of laws and customs of war in Ethiopia. In conclusion, various research show that there were laws and customs of war in Ethiopia before the 20th century. Some of these rules might not have been in line with today’s humanitarian law while other customs resembled contemporary armed conflict rules. However, thorough research has to be conducted in order to clearly understand the regulation of hostilities that used to exist in Ethiopia before the 20th century. 

[1] Michael Howard “Constraints on Warfare” in Michael Howard, George J. Andrepoulos, and Mark R. Shulman “The Laws of War; Constraints on Warfare in the Western World”, (1994), p.2.

[2] Id. p.1.

[3] Lassa Francis Oppenheim, International Law: A Treatise: War and Neutrality, Volume II, (1912), p. 226.

[4] See ibid.

[5] Id, p. 227. See also Robert C. Stacy “The Age of Chivalry” in Michael Howard, George J.Andrepoulos, and Mark R. Shulman “The Laws of War; Constraints on Warfare in the Western World”, (1994), pp. 34 – 36.

[6] International committee of the Red Cross, Under the Protection of the Palm: War of Dignity in the Pacific, (2009), p.9.

[7] Ibid p.14. 

[8] International committee of the Red Cross, African Values in War: A tool on Traditional Customs and IHL, <https://www.icrc.org/en/document/african-customs-tool-traditional-customs-and-ihl> last accessed on 28 July, 2021.

[9] A.L. Gardiner, “The Law of Slavery in Abyssinia”, Journal of Comparative Legislation and International Law, vol. 15 no. 4, (1933), p.196.

[10] Donald N. Levine, Wax and Gold: Tradition and Innovation in Ethiopian Culture, (1965), p. 41.

[11] Nega Ewnetie Mekonnen, “የዓለም አቀፍ የሰብአዊነት ሕግጋትና መርኆች በዳግማዊ አጼ ቴዎድሮስ የጦር ሜዳ ውሎዎችና ውሳኔዎች ውስጥየነበራቸው ቦታ”, Bahir Dar University Journal of Law, Vol. 6 No. 2, (2016), p.347.

[12] See ibid.

[13] Dereje Feyissa, “Customary Dispute Resolution Institutions: The Case of the Nuer of the Gambella Region” in Alula Pankhurst and Getachew Assefa “Grass-Roots Justice in Ethiopia”, <https://books.openedition.org/cfee/494>  last accessed on 27 July, 2021. 

Authors’ Bio

Eyuel Zelalem Abebe: Eyuel received his LL.B. from Addis Ababa University in 2018. He is now working as a Desk officer at the Coalition of Civil Society Organizations for Elections (CECOE).

Michael Mengistu Woldeyes: Michael received his LL.B. from Addis Ababa University in 2018. He is now studying for his master’s in human rights law at the University of Groningen. 

AAU-IHL Clinic Tigray related

The War in Tigray: Investigating Violations of International Humanitarian Law

Photo Credit: UNFPA/Sufian Abdul-Mouty

Author: Lea Mehari Redae

On the night of November 4, 2020 Abiy Ahmed (PhD), Prime Minister of Ethiopia reported the news of an attack on the Northern Command of the Ethiopian National Defense Force (ENDF) by the Tigray Peoples Liberation Front (TPLF). He also stated that the ENDF has been ordered to carry out a military offensive. The same night, all communication services (phone, SMS and Internet) were shut down until the mid-December, in what the government continually referred to as a “law enforcement operation”. 

Notwithstanding, the facts on the ground show for the purposes of the application of International Humanitarian law, the intensity of the confrontation between the government of Ethiopia and the TPLF as well as the organization of the latter (through what has been referred to as the Tigray Defence Force/TDF), have met the necessary threshold to deem the situation a non-international armed conflict.  

After months of various credible reports of the involvement of Eritrean troops in the war in Tigray on the side of the Ethiopian government but denial from both the Ethiopian and Eritrean governments, the Prime Minister has acknowledged their involvement on March 23, 2021. However, the involvement of Eritrea does not change the armed conflict from a non-international armed conflict to an international armed conflict, for the purposes of International Humanitarian Law, as the support of Eritrea is to and with the consent of the Ethiopian government. 

Ever since November 4, 2020 and even after November 28, 2020 when the Prime Minister announced that the “law enforcement operation” was concluded, there have been various reports of serious violations of international humanitarian law. Some examples of these violations are massacres of civilians, extra judicial killings, sexual violence and sexual slavery, starvation of the civilian population, attacks against hospitals, looting of civilian objects and objects indispensable to the survival of the civilian population, hindering of humanitarian relief, and attacks against cultural and religious property. The parties to the armed conflict have been placing the blame on each other to advance their political or propaganda agenda, but there has been no concrete answer or accountability as to who the real perpetrators are. 

It is important to have effective investigations into these credible claims of IHL violation and for the proper application of the law (Guidelines on Investigating Violations of International Humanitarian Law: Law, Policy and Good Practice, Geneva Academy and ICRC, p. 2). For international armed conflicts, treaty laws such as the Geneva Conventions (Art. 49, Art. 50, Art. 129 and Art. 146 of Geneva Conventions I-IV) obliges states to investigate violations. Rule 158 of the Customary International Humanitarian Law Database place an obligation of investigation into possible war crimes in non-international armed conflicts. This obligation can also be found for any killing by the State in International Human Rights law treaties, which continue to apply in situations of armed conflict. (Guidelines on Investigating Violations of International Humanitarian Law: Law, Policy and Good Practice, Geneva Academy and ICRC, p. 4)

Many international organizations, such as the United Nations, have been calling for investigations into the violations. Without physical access to the Tigray region, Amnesty International has undertaken a research on the Axum massacre by interviewing refugees and phone interviews with witnesses and which it corroborated with satellite imagery before the investigation was carried out by the Ethiopian Human Rights Commission. The Bellingcat investigation team and BBC Africa Eye have also used satellite imagery, 3D topographic information and social media to locate the massacre at Mahbere Dego where it was reported that uniformed men led a group of unarmed men to the edge of a cliff, shooting some at point blank range, and pushing dead bodies over the cliff. 

However so far, the only organization that has had access to the region for such an investigation is the Ethiopian Human Rights Commission (herein after EHRC). Particularly with regards to the war in Tigray, the Ethiopian Human Rights Commission has only investigated the massacre of civilians in Mai Kadra and Axum, as well as visiting the conditions of suspects detained in connection with the war in Tigray. All other possible violations of IHL have not been investigated. On the 25th of March 2021, the Office of the High Commissioner for Human Rights and the Ethiopian Human Rights Commission have agreed to collaborate on the investigation of the human rights violations and abuses allegedly committed by all parties to the armed conflict in Tigray. 

With ethnic polarization at an all-time high in the country, all sides of the armed conflict have been claiming that the reports that incriminate their side are “fake news” in an effort to discredit them. In different cases, the parties to the armed conflict have also refused to co-operate with these organizations (e.g. Amnesty international has stated the lack of response from Ambassador Redwan Hussien  Ethiopia’s State Minister for Foreign Affairs and Spokesperson for the Emergency Taskforce in the Ministry of Foreign) (Amnesty International, p. 5) 

Impartiality or at least the lack of the perception of impartiality has been a major criticism of the existing investigations. The EHRC in particular has been criticized for lack of impartiality based on its accountability to the Parliament and the nomination for appointment of the chief commissioner by the Prime Minister. There are claims that other international organizations and media have not been able to investigate the potential violations as the government-imposed lockdown in the Tigray region made access to the region extremely difficult. Local journalists and fixers have also been harassed, detained or killed.  

Amid  the controversy on the impartiality of the investigations, there are “deeply distressing reports of sexual and gender-based violence, extrajudicial killings, widespread destruction and looting of public and private property by all parties continue to be shared with us, as well as reports of continued fighting in central Tigray in particular,” as stated by the UN High Commissioner for Human Rights Michelle Bachelet

It continues to be imperative to have impartial and independent investigation. Not only to score points in public relations but also as a matter of legal duty. Here is where the author believes the International Humanitarian Fact Finding Commission (herein after referred to as IHFFC) can play a great role in investigating the violations of IHL in the Tigray region. 

Logo of the International Humanitarian Fact-Finding Commission

The IHFFC is a commission established on the basis of Art. 90 of the Protocol I Additional to the Geneva Conventions (herein after API), to which Ethiopia is a signatory. This commission consists of 15 expert members with “high moral standing and acknowledged impartiality”. The IHFFC’s main tasks are to investigate alleged violations of the International Humanitarian Law during armed conflicts and facilitate the respect of IHL. It also reports the findings of its investigations to the states and recommends possible solutions that are deemed appropriate.  Its role is limited to establishing facts with regards to serious violation of IHL. It does not render judgements on the matter. 

Although API applies to situations of international armed conflicts, the IHFFC has clearly expressed its willingness to investigate alleged violations of IHL in non-international armed conflicts (NIACs) so long as the parties consent. This has been the case in Ukraine where the IHFFC investigated the death of a paramedic and the injury of two others who were part of a patrol of the Organization of Security and Co-operation of Europe (OSCE) Special Mission to Ukraine due to an explosion in the Luhansk region where the government was involved in a non-international armed conflict.

For international armed conflicts, the commission can only begin its inquiry when it receives a request from states that have recognized the Commission’s competence. It is important to highlight that the member states that can make the request do not have to be parties to the conflict. A list of the current member states can be found here. 

The Commission can only investigate whether there has been a commission of grave breaches of the Geneva Conventions (which are only applicable in international armed conflicts) or other serious violations of the Geneva conventions. As an investigative body, it invites the parties to the armed conflict to support it by presenting or challenging evidence. 

On December 29, 2020 the IHFFC, offered its services to the government of the Federal Democratic Republic of Ethiopia with regards to the armed conflict in Tigray. The investigations would begin when the parties to the conflict in Tigray consent to it. 

The investigations on alleged violations of IHL in the Tigray region by the IHFFC have five main advantages: 

First, the members of the commission are persons whose impartiality is acknowledged internationally. This has also been acknowledged by independent and impartial humanitarian organizations. They will not take sides of any party to the conflict during their investigation.  The utilization of the IHFFC’s fact finding services helps restore respect for IHL and deter a vicious circle of violations from all parties. 

Second, as compared to NGOs who would possibly have to respect the interest of their funder, the IHFFC has no such duty and therefore remains independent (Charles Garraway, p. 815). As it is a treaty based international body, it also won’t have the same type of partiality or perception of partiality that might exist with the EHRC, a body accountable to the highest legislative body of the Federal Democratic Republic of Ethiopia’s. 

Third, the IHFFC brings with it an expertise of the rules of IHL that would determine whether there was a violation of IHL. As it currently stands, there is a conflation of the Human rights and IHL in the war in Tigray. Although both branches of law serve to protect civilians, there are differences in assessing the notions of necessity, distinction and proportionality of each attack/ operation. As the current situation in Tigray is that of an armed conflict, it is important that it is analyzed and investigated by experts that are able to apply rules and principles of IHL as well as other applicable laws. 

Fourth, the work of the IHFFC is based on confidentiality (Charles Garraway, p. 815). As mentioned above, the report of the IHFFC remains confidential unless the parties request the commission to make it public. The commission’s goal is to ensure respect of IHL by solving the dispute, not naming and shaming. 

Fifth, investigation by the IHFFC would prove the truthfulness or falsity of the allegations that have been made thus far and the lawfulness or unlawfulness of the military operations done by all parties during this conflict. This would ultimately change the narrative that IHL is always violated leading to the risk that they may be repeated or create an environment where such violations become more acceptable.  Lack of independent and impartial investigations by a commission such as the IHFFC in these circumstances could also lead to a vicious circle of violations of IHL as retaliation. 

In the early 2000’s Ethiopia was a pioneer in accepting the jurisdiction of the Boundary Commission and Claims Commission on the basis of the Algiers Agreement to resolve the disputes following the termination of the military hostilities between Eritrea and Ethiopia. It should also now take the pioneering role by accepting the offer of the IHFFC to investigate the violations of IHL in the war in Tigray. The various reports of serious violations of Tigray require an immediate independent and impartial investigation. Especially for reasons of partiality or perceived partiality of other national and international organizations, and the particularly sensitive nature of the conflict, its important to have the only permanent international treaty body set up to investigate violations of IHL, investigate the situation in Tigray. 

It is imperative that all violations of IHL committed in the Tigray region in the past six months are investigated independently and impartially to ensure respect for IHL. Such an investigation will also aid in providing remedy for the victims and preventing of future violations of IHL. There is, however, a challenge into accepting the proposal of the IHFFC to investigate the violations of IHL in Tigray, Ethiopia. As stated in Art. 90(7) of API, the parties to the conflict are expected to advance the necessary funds for the expenses of the investigation. This is especially difficult to do in a non-international armed conflict where the other party to the conflict is a non-state armed group. Notwithstanding, this challenge could be solved by the financial support of other states or international organizations that have been calling for investigations into the violations of International Humanitarian Law in Tigray. 

Lea Mehari Redae is the founder of the Addis Ababa University International Humanitarian Law Clinic. She is an Assistant Lecturer at Addis Ababa University School of Law. She studies at the Geneva Academy of International Humanitarian Law and Human Rights.

AAU-IHL Clinic Uncategorized

International Humanitarian Law – a legal framework to safeguard African States against the effects of hostile cyber operation

Authors: Dr. Tilman Rodenhauser, Thematic Legal Advisor, ICRC HQ

                 Raji Gezahegn, Legal Advisor, ICRC Delegation in Ethiopia

Image source: https://thinkrcg.com

   

Around the world, societies are digitizing. The African continent is no exception. In fact, it is a front runner in certain areas, such as mobile-money services. There are great opportunities in the digital transformation of societies, including for the delivery of health services, mobile banking, communication, educational resources, e-government services and new infrastructure projects. However, there are also risks that these services be disrupted through the malicious use of information and communication technology (ICT) by States and non-State actors. This risk is particularly acute for States with rather weak cyber security systems – according to the ITU 2018 Global Cyber security Index many African states are among them.

‘Cyber Security’ is a flagship project of the African Union’s Agenda 2063. Experts argue that African States should consider a range of measures from coordination and cyber capacity building at national, regional, and global level, to developing a robust international legal framework to protect States and their citizens from digital threats. In this post, we argue that cyber operations are increasingly being used in armed conflicts, African States should embrace the applicability of international humanitarian law in cyberspace as a safeguard against the harmful effects of hostile cyber operations conducted during on-going or future armed conflicts. While African States may not be involved in these conflicts, cyber operations – in particular unlawful indiscriminate attacks – risk spreading beyond the confines of one conflict affect African States incidentally.

The risk of human harm through cyber operations

Cyber operations pose a real risk of human harm. Cyber security experts warn against a ‘humanitarian crisis in the making’. This risk is particularly important when critical infrastructure is targeted through cyber operations. Attacks against medical infrastructure (seen around the globe during the COVID-19 pandemic, including in South Africa) or water and sanitation systems can affect the health and lives of citizens. Attacks against electricity providers (as witnessed in Johannesburg in 2017) or against mobile money systems can cause significant societal and economic disruption.

In a recent statement of the African Group in the United Nations Open-Ended Working Group on ICTs, 54 African States framed the threat as follows:

“A number of States are developing ICT capabilities that could be used for malicious and offensive military purposes. These technologies easily proliferate to non-state actors. All these developments coincide with increasing tensions at the international levels and a new arms-race. The risk of harmful ICTs attacks against critical infrastructure is both real and indeed very serious.”

This assessment corresponds with the International Committee of the Red Cross’ (ICRC) warning that with an increasing number of States developing military cyber capabilities, ‘the use of such capabilities is likely to increase’.

International humanitarian law as a protection framework in cyberspace

International humanitarian law (IHL) is the field of international law that applies during armed conflicts. Most IHL rules aim to protect civilians and civilian infrastructure against the effects of hostilities. Of course, in the Geneva Conventions of 1949 and their Additional Protocols of 1977 States defined these rules having in mind armed conflicts fought with conventional weapons – but the drafters had sufficient foresight to explicitly include rules making clear that IHL also applies to future weapons, means or methods of warfare (see article 36 Additional Protocol I). While some States have raised questions about the applicability of these rules to cyber operations, In 1996, the International  Court of justice stated that the established principles and rules of humanitarian law applicable in armed conflict apply ‘to all forms of warfare and to all kinds of weapons’, including ‘those of the future’. Undoubtedly, this includes cyber operations during armed conflicts. Similarly, the ICRC has long held the view that IHL ‘limits cyber operations during armed conflicts just as it limits the use of any other weapon, means and methods of warfare in an armed conflict, whether new or old’.

In the debate around the applicability of international law in cyberspace, legal experts and policy makers – including in Africa – may wonder whether IHL should be their priority. After all, in many States armed conflicts are fought with guns, not with laptops and malware. Are cyber operations not taking place at a ‘safe distance’ from African States?

In cyberspace, this approach would be dangerous. Because of the interconnected nature of cyberspace, attacks carried out against one State affects many others – wherever they are located and irrespective of whether they are involved in the conflict. For example, malware such as WannaCry or NotPetya infected computers in many countries at peace, first in Asia or Europe before spreading around the globe and also affecting African States. Having strong international rules applicable to cyber operations during armed conflict and insisting that IHL is respected should be a cyber security-concern for all States – for their own protection.  

IHL prohibits the development and use of malware that targets civilian objects (including what is sometimes called ‘critical civilian infrastructure’) or that spreads automatically and affects military and civilian targets without discrimination. Likewise, parties to conflicts are prohibited from carrying out an attack – including through cyber means – that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. These are but two examples of the rules that all States have an interest – and an obligation – to see respected.

The way forward: speaking law to power

In 2018, States established two United Nations processes on ICT security (the Open-Ended Working Group and a Group of Governmental Experts). In both processes, States are mandated to study the legal framework governing cyberspace. While States’ views diverge on questions such as whether a new treaty governing cyberspace is needed, especially those States that risk being intentionally targeted or becoming unintentionally affected by cyber operations should have a strong interest and obligation in stressing that existing rules of IHL apply and restrict cyber operations during armed conflicts. In 1977 already, States agreed that IHL cannot ‘be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations’. Indeed, IHL must not be regarded as undermining United Nations Charter but as an additional layer of protection for civilians and civilian infrastructure.

***

“Dr. Tilman Rodenhäuser is a legal adviser at the International Committee of the Red Cross (ICRC). The views expressed on this blog are his own and do not necessarily reflect those of the ICRC. Prior to joining the ICRC in 2016, Tilman has worked with the German Red Cross, the think-tank DCAF, the NGO Geneva Call, and the United Nations, with missions in Africa and the Middle East. Tilman holds a PhD from the Graduate Institute of International and Development Studies in Geneva and recently published the monograph Organizing Rebellion: Non-state armed groups under international humanitarian law, human rights law, and international criminal law(OUP, 2018). He has also published various articles in renowned international journals and received different awards for his work. He can be reached at trodenhauser@icrc.org”

“Raji Gezahegn a legal adviser at the International Committee of the Red Cross (ICRC). The views expressed on this blog are his own and do not necessarily reflect those of the ICRC. Prior to joining ICRC, Raji worked as Lecture of Law for several years. Raji holds two graduate degrees in Public International  Law and International Human Rights Law from Addis Ababa University and University of Essex respectively. He can be reached at graji@icrc.org “

AAU-IHL Clinic Uncategorized

Cluster Munitions in South Sudan: Setting the Legal and Policy Framework to Humanitarian Ends

By Marco Chol, Legal Advisor, International Committee of the Red Cross at South Sudan Delegation in Juba

Photo Credit: U.S. Air Force

Cluster munitions release explosive submunitions: small, unguided explosives or bomblets that are designed to explode prior to, on or after impact. Theses bomblets disperse over a large area and often fail to ‘detonate as intended, lying on the ground for years, even decades, after the war has ended, waiting to kill or maim any man, woman or child who touches or steps on them’.

Recognizing the grave danger for civilians, States concluded the Convention on Cluster Munitions (CCM) in 2008. This year, 1 August 2020, marked the 10th anniversary of the CCMs entry into force. 

The CCM reinforces fundamental customary international humanitarian law (IHL) rules that require parties to armed conflict to distinguish at all times between civilians and combatants, to direct operations only against military objectives and to take constant care to spare civilians and civilian objects. On the basis of this Convention, cluster munitions are prohibited.

The CCM imposes international obligations upon States Parties to refrain from using, developing, producing, acquiring, stockpiling, retaining or transferring cluster munitions. It also prohibits assisting, encouraging or inducing anyone to undertake prohibited activities. States possessing or affected by cluster munitions must take action in specific areas: destroying stockpiles, clearing remnants of cluster munitions and providing assistance for victims. 

Cluster Munitions and South Sudan To Date

In the East and Horn of Africa, Djibouti, Kenya, Tanzania and Uganda have signed the CCM, but only two States, Rwanda and Somalia, are party to it. Since its independence in 2011, the Republic of South Sudan has expressed its interest to join the Convention. In 2017, based on a proposal put forward by the Ministry of Justice, the South Sudan Council of Ministers passed the CCM’s accession instrument. In addition to this step the constitution requires approval of the parliament and assent of the President for the country to become party to a treaty. These steps were not completed following the Council of Ministers’ decision so the treaty and its critical provisions do not yet bind South Sudan.

Despite the fact that South Sudan is not yet a party to CCM, it has participated as an observer in meetings of the Convention, most recently in September 2018, when it reaffirmed that it has not used, produced, or stockpiled cluster munitions. In April 2020, South Sudan submitted its first Article 7 Report of the Convention on Cluster Munitions – a voluntarily report on measures taken in respect of cluster munitions. This records the nature and types of munitions in the country, the extent of programs to remove or destroy them, the extent of educational programs to prevent harm and, importantly, measures undertaken to clear areas contaminated by such weapons. Amongst other things, the report noted that South Sudan had made ‘progress in cluster munitions clearance [between] 2011 [and] 2019[:] 18,101,789 square metres of land has been cleared from cluster munitions contamination and 3, 270, 629 square metres of land reduced through non-technical survey methodology’. It explains that ‘12,481-cluster munition and 1,549’ unexploded ordinances were destroyed in the reporting period. Despite these achievements, the report also recognizes the need for further action with ongoing international support, particularly from 2020 to 2027, in several key domains, including clearance, risk reduction and assistance to victims.  

Setting the Legal and Policy Framework to Humanitarian Ends

Positive voluntary steps relating to the CCM by South Sudan suggest that the will is there in South Sudan to be bound by this treaty. Decisive action is needed by the executive and legislature to complete the process to bringing the Cluster Munitions Convention into its law, and strengthening international humanitarian law in South Sudan. 

Appropriate local legislation and definition of a medium-term policies will definitively transform South Sudan consistent commitment into a tangible framework that can continue to move forward clearance, risk education and assistance to victims. It will enable the State to receive international cooperation and assistance for clearance, stockpile destruction, victim assistance and risk education, as well as economic and social recovery of affected State Parties; and benefit from the experience and expertise of other states and engaged actors’ through participation and contributions to the Meeting of States Parties.   

From 23 – 27 November 2020, Switzerland will host the second Review Conference of the CCM. The Conference will adopt a new Action Plan to guide the Convention’s implementation for the next five years, including to increase the number of States Parties. In the lead-up to the Conference, States that have not done so already are encouraged to consider the benefits of expressing their intention to be bound by this fundamentally humanitarian treaty.  This is the right time for South Sudan to act and demonstrate its commitment to the Cluster Munitions Convention. 

***

Marco Chol is a South Sudanese lawyer, working as legal advisor at the International Committee of the Red Cross at South Sudan delegation in Juba. He is a holder of a Bachelor of Laws, a specialized Post-Graduate Diploma in Human Rights and IHL from the University of Khartoum, a master’s in international Humanitarian Affairs from the University of York, UK. He can be reached at cmarco@icrc.org