The ‘Axum Massacre’ and the Use of Lethal Force Outside of Hostilities

Author: Wubeshet Tiruneh

Image Source: https://www.globalsecurity.org/military/world/ethiopia/images/axum-ap-image02.jpg

On 10 May 2021, the Office of the Attorney General of the FDRE issued a press release on its finding on the alleged massacre in Axum. The Office concluded that the great majority of those killed in Axum were members of the fighting force of the TPLF and they were killed during the fighting. Indeed, the reports of the Human Rights Watch, the Amnesty international, and the Ethiopian Human Rights Commission similarly indicated that TPLF forces and other civilians attacked Eritrean forces, and that there was a fighting between them in Axum on 28 November 2020. However, according to the reports of these human rights organizations, many of the victims were killed and wounded after the fighting had stopped, in what the Human Rights Watch report called ‘apparent retaliation’.

In a statement issued regarding the findings of the Office of the Attorney General, Human Rights Watch slammed the findings and questioned how ‘the Ethiopian government distinguishes between combatants and civilians’. The statement further highlighted that the Office of the Attorney General ignored civilians killed and wounded after the fighting had stopped, and reminded the Office and the government that IHL prohibits targeting civilians, even if they had participated in fighting in the past. Amnesty international similarly issued a statement expressing its ‘concerns that the actual purpose of the investigation is to cover up the massacre by claiming that those killed were actually TPLF.’

The concern of the Human Rights Watch and the Amnesty International is legitimate given that  the finding of the office of the Attorney General is mainly related or confined to those who were killed during fighting or hostilities. It did not address or cover those who were killed and wounded once the fighting or the hostilities had ended or significantly subsided in that specific incident. Indeed, on 21 May 2021, the Office of the Attorney General issued another statement in which the Office admitted that  there have been killings in the city after the fighting had stopped. However, the statement claimed that some of those who have been killed in the city are ‘irregular combatants’. 

This triggers a question whether and in what circumstances can the armed forces of a state can legitimately use a lethal force once the fighting had stopped within the context of non-international armed conflict. Can they justify the use lethal force outside of active hostilities by claiming that those individuals against whom force is used are fighters or civilians who participated in hostilities?

The Use of Lethal Force Outside of Actual Hostilities

The legality of the use of lethal force in the context of armed conflict is determined mainly based on the status of a person or the object against which it is used. It is lawful as far as the attack is directed against combatants, fighters and civilians who are directly participating in hostilities. The cardinal obligation of states to non-international armed conflict is to distinguish between civilians and fighters and direct their attacks against fighters. The use of lethal force or directing attack against civilians is prohibited and could constitute war crime unless and to such time they are directly participating in hostilities.

The question, however, is whether the authorization to attack or use lethal force against fighters is limited in the context hostilities or the entire duration of non-international armed conflict. This is important because there is a tendency to use lethal force once the hostility has ended and claim that the person against whom the force is used is a TPLF fighter. The traditional view was that fighters can be targeted anytime in the context of armed conflict. However, currently, there is a growing consensus that once the hostilities have ended or significantly subsided and the armed forces of states controlled the area, lethal force should not be used unless it is absolutely necessary and proportional. Anyone, including fighters, cannot be subjected to lethal force except to respond to an imminent threat to life or bodily integrity.

There are two justifications for this. First, under international humanitarian law, there is no military necessity to use lethal force and kill or wound an individual while he/she can be reasonably apprehended without causing undue danger. General Comment no. 3 of the African Commission, for instance, reminds us that ‘[w]here military necessity does not require parties to an armed conflict to use lethal force in achieving a legitimate military objective against otherwise lawful targets, but allows the target for example to be captured rather than killed, the respect for the right to life can be best ensured by pursuing this option.’ (para. 34)

Second, once the hostilities have ended or significantly subsided, the use of force, even against fighters, will become a law enforcement issue, not a conduct of hostilities issue, and governed by rules derived from international human rights law. International human rights, particularly rules relating to the prohibition of arbitrary killing, requires states to use lethal force as a measure of last resort. They should attempt to make arrest or use less or non-lethal force before resorting to lethal force. Armed forces of a state can resort to a lethal force only when it is necessary to respond to an imminent threat to life. Even in the presence of a serious threat, the force used should not exceed the amount strictly needed for responding to the threat. So, the status of a person as a fighter cannot justify the use of lethal force outside of hostilities.

According to the finding of the Office of the Attorney General, the fighting took place in the mountains area of Axum from 6 A.M to 2 P.M until ENDF’s help had arrived and TPLF forces had backed to the city. The use of force by the Eritrean force in this specific context will be legitimate if it is targeted against fighters and civilians who are directly participating in hostilities. Parties to the conflict can direct their attack or use lethal force against any legitimate military target in the context of hostilities.

However, the Eritrean forces continued using lethal force and killed and wounded many individuals in the city after the fighting had stopped. The use of force in this context cannot be justified by claiming that those individuals against whom force is used are fighters or civilians who participated in hostilities. The legality or otherwise of the use of lethal force in such context does not depend on the status of a person against whom the force is used. Instead, it depends on whether it is absolutely necessary and proportional to respond to serious and imminent threats to life.

Multiple reports, including the detailed report of the Ethiopian Human Rights Commission, indicated that Eritrean forces used lethal force against unarmed individuals, by going house to house, and some after being apprehended. There were no imminent and serious threat posed by these individuals against Eritrean forces or anybody else. Even if these individuals had been suspected of being a TPLF fighter or civilians who directly participated in hostilities, they could have been easily apprehended without causing any danger. The use of lethal force by Eritrean forces against these individuals in Axum was therefore neither necessary nor used as a last resort.

The Extraterritorial Human Rights Obligation of Eritrea

The restriction on the use of lethal force outside of hostilities is derived from the obligation of states to respect the right to life or not to arbitrary kill individuals under international human rights law. This triggers a question whether Eritrea has an obligation under international human rights law to respect the right to life of individuals in Tigray, Ethiopia, where its forces are operating. Indeed, State obligation under international human rights law is mainly territorial with regard to individuals living within their respective borders. However, it could extend extraterritorially whenever they exercise jurisdiction outside of their borders through control over territory or person, regardless of the legality of the control.

Particularly in the context of military operations abroad, General comment no 31 of the Human Rights Committee states that human right obligation applies to those[individuals] within the power or effective control of the forces of a State Party acting outside its territory.(para. 10) Similarly,  General Comment no 36 noted that states have an obligation to respect the right to life of individuals ‘located outside any territory effectively controlled by the State whose right to life is nonetheless affected by its military or other activities in a direct and reasonably foreseeable manner.’ (para. 63).

Since the start of the military confrontation between the Federal government of Ethiopia and TPLF, Eritrean forces are operating in some parts of Tigray, Ethiopia, under the consent or acquiescence of the Federal government. Accordingly, Eritrea has extraterritorial human rights obligation, including the obligation to respect the right to life, regarding individuals living in territories it controls or individuals over whom it is exercises power and authority as part of its military presence in Tigray, Ethiopia. Eritrea should therefore operate in a manner that respects not only international humanitarian law but also international human rights law.

Conclusion

The Office of the Attorney General should have therefore employed different standards in determining the legality of the lethal force used within and outside of the context of fighting. The use lethal force in the context of hostilities or fighting is legitimate if it is directed against fighters and civilians participating in hostilities. However, the use of lethal force after the fighting had stopped cannot be justified by claiming that the person against whom the force used is a fighter, even in the context of an ongoing non-international armed conflict. Anyone, including fighters and civilians who directly participated in hostilities, cannot be subject to the use of lethal force unless it is absolutely necessary and proportional to respond to serious and imminent threat.

Wubeshet Tiruneh is a Ph.D. Candidate in International Law at the Graduate Institute, Geneva. He can be reached at wubeshet.tiruneh@graduateinstitute.ch

A CALL FOR JUSTICE AND ACCOUNTABILITY FOR SURVIVORS OF RAPE IN THE TIGRAY CONFLICT OF ETHIOPIA

Author: Dunia Mekonnen Tegegn

Image source: https://www.tghat.com/wp-content/uploads/2021/01/ezgif.com-gif-maker.png

On Nov 3, 2020, a conflict out broke between the Tigray Liberation Front and the Ethiopian National Defense Force when the TPLF assaulted the Northern command. Due to the unfolding conflict, women were and have continued to be the victims of sexual abuse. The gender discrimination women are subjected to in their society before the conflict contributed to their victimization during the conflict. Even though the Ethiopian Constitution provides full and equal dignity with men, the reality of women’s lives is very different. Reports indicate that in the past four months, 108 cases of rape have been reported in Mekelle, Ayder, Adigrat, and Wukro hospitals.

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 this 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 warring factions use rape as a weapon. 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.

The Tigray Conflict and Violations of Women’s Human Rights

The most authoritative gender-specific treaty, the Convention on the Elimination of Discrimination against Women (CEDAW) was ratified by Ethiopia in 1981.CEDAW defines discrimination against women to include gender-based violence; that is, violence directed against a woman because she is a woman, or that affects women excessively. It includes acts that inflict physical, mental, or sexual harm or suffering, threats of such acts, coercion, and other deprivations of liberty. In the context of the definition provided under article 1 of CEDAW, rape during conflict is discrimination against women.

Article 5 of CEDAW calls on state parties to take all measures to fight social and cultural patterns of men and women to eliminate social prejudice and stereotyped roles to protect women from the abuse of any kind that happens within the family, in work, and in the context of armed conflicts including through laws that implement protection from sexual violence and also by facilitating services to those who are subject to sexual violence. In addition to this, CEDAW is very specific, particularly as far as the government’s obligation to provide fully comprehensive services to contribute to gender equality and women’s empowerment. These services include medical and psychological treatment, and shelter for those who are subject to sexual violence.

The CEDAW Committee also affirmed that implicit in CEDAW and, in particular, article 2(c), is a right to an effective remedy. It explained that for a remedy to be effective, adjudication of a case involving rape should be dealt with in a fair, impartial, timely, and expeditious manner. In the context of the conflict in Tigrai, although non-state actors cannot become parties to CEDAW, the CEDAW Committee has stressed that under certain circumstances, in particular where an armed group with an identifiable political structure exercises significant control over territory and population, non-state actors are indebted to respect international human rights laws.

According to comments provided by the CEDAW committee what constitutes accountability to end violence against women (VAW) includes both obligations of means or conduct and obligations of results. It highlights that ending violence against women in all contexts requires efforts that include for instance state’s duty to abstain from invading the rights of women. It also includes actions that are positive towards fulfilling and realizing women’s rights through the provision of relevant services. Under article 2 of CEDAW, the obligation to respect, the obligation to protect, and the obligation to fulfill are discussed. Significant obligations that require the attention of the ruling party in Ethiopia are obligations to protect and to fulfill.

The obligation to protect, is the obligation of a government to defend women’s rights against infringement by third parties not affiliated to the government. In addition to CEDAW, 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. The African Charter demands the eradication of discrimination against women and calls for the protection of women’s rights as guaranteed under international human rights frameworks. The Charter’s clear reference to international women’s rights instruments is very strong and provides more protection to women in Africa including their protection from rape. More specifically article 5 of the 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 have directly referred to the application of article 5 not only to physical and psychological harm but also to those, which relate to the individual’s personhood. Therefore, it is submitted that Article 5 of the Charter guarantees the protection of women from rape during conflict. 

Article 3 of the Maputo Protocol also enshrines that every woman has the right to dignity inherent in human beings and to respect as a person and to the free development of her personality. This protocol also clearly prohibits violence against women including women’s protection from physical, sexual, psychological, and economic harm. From the definition provided by the Protocol, it is clear that such protection also includes protection from rape during an armed conflict.

The Maputo Protocol also protects women from the violation of their human rights both in their private and public life; during both peacetime and conflict. The protocol stipulates that states are under an obligation to protect women seeking asylum and refugee status because of a given armed conflict by categorizing acts that have happened during the conflict including rape as a war crime

Article 11(2) of the Maputo Protocol further underlines that women in whatever ethnic group they belong in a conflict should be provided civilian protection from violence. Here, the Maputo Protocol is very clear that rape during conflict constitutes an international war crime as stipulated under the Geneva Conventions and the Rome Statute of the ICC. The Protocol also positions sexual violence including wartime rape as genocide and requires African states when in conflict to adhere to the principles of international humanitarian law. These principles have been violated by parties to the conflict in Tigray. 

Humanitarian access and restricted resources for service providers have reduced the availability of essential health care and support for survivors of sexual violence, including sexual and reproductive health care. Access to lifesaving aid, such as dignity kits, post-rape kits, treatment to prevent HIV and STI transmission and psychosocial programs also remain critical.

The ruling party, therefore, needs to take appropriate measures to ensure that violent crimes are promptly reported and women are provided essential services. The ruling party therefore should;

  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 to deter the further commission of violent acts not only in Tigray but also in other parts of Ethiopia where violent crimes involving women are documented.
  2. 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. 
  3. Facilitate improved funding and support to expand the provision of vital services including one stop centers and safe homes, humanitarian contact, and language access for reporting violent crimes.
  4. Ensure justice and accountability for rights violations and grant other relevant remedies including compensation.[1]

[1] Recent reports indicate that a task force been established focusing on this particular issue and the writer believes this article could contribute to such work and agenda, https://www.nwaonline.com/news/2021/feb/13/ethiopian-task-force-inquiry-confirms-tigray/

Dunia Mekonnen Tegegn, Ethiopian Human Rights Lawyer and Gender Equality Advocate

Prior to her role as Human Rights Consultant on Ethiopia with the American Bar Association, and a Researcher on Privacy and Media Rights issues with Collaboration for International ICT policy for East and Southern Africa, Dunia worked as an Almami Cyllah Fellow with Amnesty International USA.

Before going to the United States, Dunia 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 is a trained Humanitarian Law and Policy profession with PHAP (Geneva).  

Dunia holds a Master of Laws in National Security from Georgetown University Law Center and a Master of Arts in Human Rights from Addis Ababa University. Dunia is the first Africa Fellow for Georgetown’s Women’s Law and Public Policy Program to earn a Master of Laws in National Security. 

Memberships Dunia is a member of the Pan African Lawyers Union (PALU), the Ethiopian Bar Association, and the Ethiopian American Bar Association in Washington DC. She also served as a Legal Compliance Coordinator for Your Ethiopian Professionals Network and co-chaired the Africa Committee of the United Nations Association for the National Capital Area.

Online Speaker Series: International Humanitarian Law

Esteemed followers of the Addis Ababa University IHL Clinic,

Canadian Red Cross, in partnership with the University of Ottawa, invites you to its IHL NOW 2021 lecture series taking place from May 31-June 4th.

The session starts out with an introductory lecture to IHL by Professor Marco Sassòli, well known by many of you and world renowned in this field.

It is followed by a career panel on where speakers will present on challenges in IHL in relation to the conflict in Ethiopia; the conflict in Yemen; the protection of the environment during armed conflict, and conflict-related sexual violence.

On Thursday, June 3rd, 8:00 PM evening Ethiopian time Daniel Mekonnen a Human rights lawyer and Lea Mehari the Founder of Addis Ababa University International Humanitarian Law Clinic will be presenting on the Tigray crisis in light of IHL.

The link for the registration is found at
https://www.redcross.ca/how-we-help/international-humanitarian-law/conferences-trainings-and-events/ihl-now-2021

Kind regards,
Yosalem
IHL Clinic Director

HUMANITARIAN NOTIFICATION SYSTEMS & INTENTIONAL ATTACKS AGAINST HOSPITALS

by Bailey R. UlbrichtAllen S. Weiner | Apr 15, 2021Humanitarian Notification Systems. yemen-shelling-hospital-al-thawra-taiz-ICRCFacebookTwitterEmailLinkedInPrint

HUMANITARIAN NOTIFICATION SYSTEMS & INTENTIONAL ATTACKS AGAINST HOSPITALS

by Bailey R. UlbrichtAllen S. Weiner | Apr 15, 2021

Humanitarian Notification Systems. yemen-shelling-hospital-al-thawra-taiz-ICRC

Editor’s note: The following post is part of the Articles of War Symposium on Beth Van Schaack’s book, Imagining Justice for Syria. The symposium offers a platform for the contributing experts to carry the conversation on justice and accountability in Syria forward.


Despite the long-standing and widespread norm to the contrary, intentional attacks against medical facilities and their personnel in conflicts around the world have increased over the past decade. In Sudan, for example, the government army was accused of deliberately bombing hospitals—including one of the few remaining hospitals in rebel-held territory during the civil war—and schools. In Central African Republic, over 40 medical facilities operated by Médicines Sans Frontièrs (MSF) were intentionally attacked in 2017, and the attacks continued into the following year. Perhaps nowhere have attacks been more rampant than in Syria, where over the course of the ten-year conflict, at least 923 medical workers have been killed in at least 595 documented attacks on medical facilities. Such deliberate attacks contribute to the “humanitarian catastrophe” that Beth Van Schaack describes befalling Syria in her recent and powerful book, Imagining Justice for Syria.

These attacks pose major challenges to the operation of Humanitarian Notification Systems (HNSs), which were set up in various conflicts to share information with warring parties about the locations and movements of both humanitarian sites and workers. These systems are rooted in the assumption that the warring parties will use the information they receive to assist in complying with their duty not to attack humanitarians. We identify a number of challenges such deliberate targeting poses for HNSs—including issues concerning the systems’ purposes, list distribution, and vetting of humanitarian entities. Ultimately, we believe that improvement in the operation of HNSs is possible, but it will require collaborative engagement of humanitarians, international organizations, policymakers, and military leaders, as well as a willingness to re-examine long-held assumptions about how to safeguard humanitarians in times of war.

The Protection of Medical Facilities Under International Humanitarian Law

The protection of medical workers and their facilities is one of the oldest principles of the law of war. It dates back to the first Hague Regulations of 1899 and serves as a bedrock for modern international humanitarian law (IHL). Its purpose was then, as it is now, to protect field medics who care for the wounded and pose no immediate tactical threat. The immunity of medical workers also reflects the belief that medical care preserves dignity in death and suffering, regardless of which side a person fights on. Under modern law, it is a war crime to deliberately target or recklessly strike or attack medical workers and identifiable medical facilities in wartime.

Notwithstanding this clear-cut norm, as mentioned above, attacks on medical personnel and facilities have been rampant. Former U.N. Secretary-General Ban Ki-Moon decried the rising number of attacks in a U.N. Security Council meeting in May 2016. Speaking alongside him, former MSF President Joanne Liu fittingly referred to the situation as “an epidemic of attacks.”

There are different theories for why warring parties attack medical facilities and their personnel. Scholars have pointed to a broader wartime strategy of punishing civilians for their presumed political affiliations, dissuading medical workers and humanitarians from treating perceived enemies, ridding territory held by opposing forces of civilian infrastructure, or depriving civilians of the means to survive, thereby forcing them to flee or accept that party’s dominance.

Humanitarian Notification Systems  

To help warring parties avoid striking medical facilities and their personnel, humanitarian notification systems emerged from military deconfliction processes to notify warring parties of humanitarian “locations, activities, movements, and personnel.” With use dating back to at least the early 2000s, HNSs are now deployed in various conflicts to provide warring parties with necessary data of medical facilities and their personnel, often in the form of GPS coordinates. Participation in the system is voluntary on the part of both warring parties and humanitarians, however, and critically, the systems do not guarantee humanitarian protection.

There are varying models of HNSs administered by different entities. The U.N.’s Office for the Coordination of Humanitarian Affairs (OCHA), for example, runs centralized humanitarian notification systems in both Yemen and Syria, collecting fixed location and movement coordinates from humanitarian entities and disseminating them to some participating parties. In Yemen, recipients include the Saudi-led coalition; in Syria, they include the United States, Turkey, and Russia (though Russia recently backed out of the system). Importantly, OCHA does not verify the site submissions—including whether or not a site is indeed humanitarian and therefore protected under IHL. Instead, vetting a site’s status is the responsibility of warring parties, who are responsible for their own IHL compliance.

Beyond OCHA, several other entities also run HNSs. These include States, which rely on national humanitarian agencies to collect location data from humanitarian sites and disseminate it to the armed forces of that State, as well as often allied States operating in the area. Humanitarian groups such as the International Committee for the Red Cross (ICRC) and MSF also operate their own HNSs. In these ad-hoc systems, the ICRC and MSF work directly with warring groups in areas where they operate. The ICRC and MSF notify the warring groups of their humanitarian activities with a view towards ensuring protection. These systems often involve face-to-face meetings and can include non-State actors.

The Challenges Posed to Humanitarian Notification Systems

The increase in deliberate attacks against medical facilities over the past decade presents significant challenges to HNSs. HNSs are only as effective as the warring parties’ willingness to comply with IHL. Without compliance, HNSs are ineffective at best; at worst, they provide target lists for parties intent on attacking medical sites and personnel. This phenomenon demands a full understanding of the challenges posed by the rise in intentional attacks. We have identified a non-exhaustive list of these challenges below and grouped them into three categories: definition of purpose, list distribution, and humanitarian entity vetting.

Problem Area One: What Are the Purposes of an HNS?

The first set of challenges concerns whether the purpose of HNSs should change depending on a warring party’s (un)willingness to comply with IHL. In Syria, for example, the purpose of OCHA’s notification system as publicly stated is to “mitigate the risks, to the extent possible, of [humanitarian entities] being targeted / hit by an air strike.” But the persistence of strikes on humanitarian sites like hospitals—despite OCHA’s implementation of its HNS—highlights questions about the intended purpose. What functions should an HNS serve in the face of a warring party’s disregard for the law? And how could an HNS be redesigned to better advance those functions?

Protection of Humanitarian Entities?

A traditional view—reflected in OCHA’s system in Syria—is that HNS serves to enhance the protection of humanitarian entities. If this is the purpose, one possible change in HNS operation could be to exclude any party that intentionally targets medical facilities from access to the disseminated list. Or the exact location of humanitarian sites could be obscured in some way to protect them from attack. Other changes could involve using HNS information to discourage warring parties from attacking humanitarian sites by increasing the cost for such actions; for example, HNS information could be used to increase diplomatic pressure or exert public condemnation (“naming and shaming”).

Accountability?

Yet if warring factions repeatedly intentionally target humanitarian entities, it is far from clear how HNS can possibly hope to achieve the goal of protection, given that the legal obligation lies with the parties themselves. In such circumstances, HNS could prioritize accountability rather than protection as its purpose. Enhancing accountability would focus on data tracking and storage. This includes, for example, systematic tracking and storage of confirmation that warring parties received the coordinate lists of protected locations. Such evidence could be used to counter potential claims that a given attack was inadvertent. Admittedly, it is not clear what accountability would actually mean in this context of HNS. One view of accountability contemplates formal judicial proceedings, which would take place months, if not years, after the strikes occurred. Another view is that accountability could happen in real time in the form of naming and shaming.

We must also consider possible implications for humanitarian neutrality, a key principle requiring humanitarians to avoid favoring any side in an armed conflict. If an HNS were to be used to attribute a strike to a specific party, would this undermine the neutrality of the organization administering the list? Would humanitarian organizations be hesitant to participate in a notification system that could be used in a manner that calls out warring parties’ responsibility for IHL violations? And would warring parties refuse to participate in an HNS if they feared that it would be used in this way?

Problem Area Two: Who Gets the List?

The second set of challenges involves the distribution of protected location lists to warring parties if some are suspected of violations. Regardless of the purpose of an HNS, distribution to a party that subsequently intentionally targets hospitals can undermine the system’s functionality. Such distribution could sow distrust among humanitarians in the system. In worst case scenarios, it may lead to humanitarians opting out of the system altogether.

The first issue within this set of challenges is how non-compliance is defined. Is it only when a party commits intentional strikes against humanitarian entities? And if so, how would the intention of a warring party be determined? Must multiple strikes occur before a warring party is considered “non-compliant”? Could a party gain re-entry? These parameters would need to be worked out, likely by the list administrator, its participants, and/or an international body that could set guidelines for HNSs.

A closely connected issue is who decides whether a party is non-compliant. One option would entail leaving it in the hands of the list-controller, the entity that collects and disseminates the information. However, this option could impinge the list controller’s perceived or actual neutrality. This encroachment on neutrality—perceived or otherwise—risks sowing distrust among participants, causing some to decline participation. Instead, one could envision an independent review body in which a diverse set of experts receive evidence of strikes and make determinations of non-compliance. Another option would be to empower the humanitarians to make this decision themselves. If they receive reports that a particular entity is targeting hospitals, they could opt out of sending their coordinates to that specific entity. Perceived and actual biases, information access, and scope of mandates are relevant concerns with respect to all of these options.

A final, broader issue under this set of challenges connects back to the first problem area. If non-compliant members are removed from the system, does that contradict the very purpose of HNS?

Problem Area Three: Should Sites Be Vetted?

Under IHL, a humanitarian site is no longer protected when it is used to commit an act harmful to an enemy—such as serving as a weapons storage facility or a hideout for an armed group. Assertions that a humanitarian site is being used for hostile purposes is often presented as justification for attacks against it. Both Russia and Syria, for instance, have invoked this reasoning numerous times in response to allegations of war crimes.

To prevent misuse of humanitarian sites, and to refute false claims of such misuse, should list administrators vet humanitarian entities before including them in a notification system? Doing so could help refute false allegations, but it raises concerns because legal responsibility for IHL compliance—including confirmation a purportedly humanitarian entity is a legitimate target—is the responsibility of warring parties, not list administrators. Those involved in administering the lists, such as OCHA, might also credibly contend that they lack the resources and intelligence tools that would enable them to vet proposed humanitarian sites, much less conduct continual re-assessment as conditions on the battlefield change.

There are also concerns about the decision-making process. As with the issues raised in the previous problem area, what standards would be used to vet humanitarian entities? Who would decide whether or not an entity is in compliance? How frequently must these determinations be made, given the near-constant changing nature of conflict settings?

Next Steps: Addressing These Challenges

These challenges are serious but not insoluble. Addressing them will require creative, collaborative thinking, and willingness to rethink the design of HNS processes in situations where warring parties do not comply with IHL. Making progress will require bringing together stakeholders from different HNSs—including humanitarians, international organizations, policymakers, and military leaders—whose varying perspectives and interests can present solutions, along with buy-in to those solutions.

There is a cure to the epidemic of intentional attacks against healthcare facilities. But it will require collaboration and a willingness to question long-held assumptions about how to safeguard humanitarians in times of war.

***

Allen S. Weiner is Senior Lecturer in Law and Director of the Program in International and Comparative Law at Stanford Law School and serves as Director of the Stanford Center on International Conflict and Negotiation.

Bailey Ulbricht is a second-year law student at Stanford Law School, where she focuses on international humanitarian law, human rights law, and U.S. foreign policy.

***

Other Posts in the Symposium

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The right to health in armed conflict

Author: Yoseph Genene

photo credit: https://www.icrc.org/en/document/enhancing-protection-armed-conflict-throughdomestic-law-and-policy-overview-report

The dramatic scene that went viral on the media in 2019, as some compared it with ‘Like Moses parting the Red Sea’, showing thousands of  demonstrators protesting a controversial extradition bill in Hong Kong; letting an ambulance passing through a sea of people as the crowd parts way for the medical emergency. This video for sure will restore your faith in humanity. Even though IHL is to be applied during an armed conflict, humanity is the common denominator here. Because in IHL, the ultimate purpose is to protect the victims of armed conflicts and regulate hostilities based on a balance between military necessity and humanity.

The right to health was first articulated in the WHO Constitution (1946) which states that: “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being…”. The preamble of the Constitution defines health as: “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”.

The 1948 UDHR article 25 mentioned health as part of the right to an adequate standard of living. In 1966, years after passage of the UDHR, the UN proposed another treaty that includes health care: the Covenant on Economic, Social and Cultural and Rights (CESCR). Article 12 of the CESCR further clarified “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” “Health” in this context is understood as not just the right to be healthy and have health care, but as a right to control one’s own body, including reproduction. Article 12 goes on to require that “states must protect this right by ensuring that everyone within their jurisdiction has access to the underlying determinants of health, such as clean water, sanitation, food, nutrition, and housing, and through a comprehensive system of health care, which is available to everyone without discrimination, and economically accessible to all.” The right to health framework is set forth in general comment No. 14 of the Committee on Economic, Social and Cultural Rights, which interprets the right to health and mandates States to respect, protect and fulfill the right to health of everyone, including persons affected by and/or involved in conflicts.

Armed conflict is one of the circumstances in which health care delivery is most needed. Despite this fact, attacks on and interference with health care services, providers, facilities, transports, and patients in situations of armed conflict pose huge challenges to health care delivery.

In the world`s youngest nation South Sudan, not only hundreds of thousands of people have been effectively denied lifesaving assistance; but also, patients murdered in their beds in the town of Malakal, upper Nile state. A hospital in Leer, Unity state, was “thoroughly looted, burned and vandalized”. The MSF compound in Bentiu, capital of Unity state was also looted amid heavy fighting.

In the neighbor Ethiopia, in the recent situation in Tigray region, health facilities have been looted, vandalized, and destroyed in a deliberate and widespread attack on health care, ambulances have been seized by armed groups, and many health facilities have few or no remaining staff. Some have fled in fear; others no longer come to work because they have not been paid in months.

In Libya, on 18 February 2018, a woman in labor and her unborn child died on their way to the Wehda hospital, after armed men affiliated with the Libyan National Army at the Kirsa checkpoint, west of Derna, delayed their passage. Such acts are in breach of the obligation of parties to the conflict under IHL to ensure that adequate medical care is provided to the wounded and sick as far as practicable and with the least possible delay.

Also in Libya, in 2011 uprising discriminatory practices were frequently employed. Cars were stopped to prevent patients belonging to opposing ethnic groups reaching hospitals. IHL focuses on impartiality in responding to individuals in immediate need of care rather than on the structure and availability of services. IHL would forbid turning away a woman in labor based on her ethnic or political affiliation, it does not address entrenched practices that limit the availability, accessibility, and quality of facilities and services to members of her group and may make it dangerous for her to seek care. International Human Rights Law (IHRL) can assist in powerfully addressing these infringements.

The application of the general International Human Rights Law (IHRL) in an armed conflict is no more a debate. As settled by the ICJ, it will play a vital role protecting the right to health of individuals by complementing IHL which is the special law which applies in an armed conflict.

IHL has provided a framework for assuring protection and respect for medical personnel, medical facilities, and ambulances, as well as the wounded and sick, in IAC and NIAC.

The right to health has been interpreted as consisting of key entitlements and state responsibilities, including the interrelated and essential elements of availability, accessibility, acceptability, and quality of health care services, facilities, and goods.

Only in recent years has the importance of the right to health in war and other situations of political violence begun to develop. The first breakthrough likely came in a 2013 report by the Special Rapporteur on the Right to Health, Anand Grover. The report recognized that insecurity often limited states’ ability to ensure the resources needed to maintain access to health but explained that the requirement of progressive realization remained in place, requiring “concrete steps towards the full realization of the right to health to all, without discrimination and regardless of the status of persons as combatants or civilians.” His report was soon followed by another report by the OHCHR on economic, social and cultural rights in armed conflict, with a specific focus on the rights to health and to education. In which requires states to pay particular attention to persons rendered vulnerable by conflict, including internally displaced, women, children, older persons and persons with disabilities, among others. Further, to address marginalization arising from social, political and economic exclusion and discrimination.   

 

IHL remains a critically important set of rules through which to address obligations with respect to health in armed conflict, with IHRL acting as a powerful complement to it. In circumstances where no armed conflict exists, but where health workers, facilities, patients, and ambulances are subject to threats, attacks, and other forms of interference and denial, IHRL fills an important gap.

As IHRL has been contributing to ensure the interests and needs of the powerless and the vulnerable, also in time of  armed conflict and in time where there`s a debate whether the situation is an armed conflict or law enforcement,  the application of IHRL will address the powerlessness experienced by those seeking care and those trying to provide it, across all conflict settings.

Yoseph Genene is an undergraduate student at the School of Law, College of Law and Governance Studies, Addis Ababa University. He can be reached through the email address geneneyoseph@gmail.com or twitter @geneneyoseph

Webinar Series on Semi colonialism

Centre for International Legal Studies Jindal Global Law School (JGLS) and Addis Ababa University IHL Clinic have co-organized a Webinar series entitled “Semi-colonialism and International law” for Spring 2021. The webinar series features distinguished scholars from different continents. The topic of each webinar, presenters, moderators, and time schedule is provided below.

The registration link is available at https://bit.ly/3rfLxBx

THU,11 MARCH 2021, 7:30 PM-8:30 PM Topic: Semi-colonialism in Siam
Presenter: THONGCHAI WINICHAKUL
Universty of Wisconsin-Madison
Moderator: Prabhakar Singh
Jindal Global Law School

THU, 18 MARCH 2021 7:30 PM – 8:30 PM Topic: From Semi-Colonial Ambiguity to Nationalist Assertion in Twentieth-Century China
Presenter: XIN FAN
State University of New York Fredonia
Moderator: Prabhakar Singh
Jindal Global Law School

THU, 08 APRIL 2021 7:30 7:30 PM – 8:30 PM Topic: Hawaiian kingdom, the United States and International Law
Presenter: DAVID KEANU SAI
University of Hawaii
Moderator: Ajita Sharma
Jindal Global Law School

THU, 15 APRIL 2021 7:30 PM – 8:30 PM Topic: Semi-colonialism in Indochina: A longue Duree History: A Langue puree History
Presenter: ANN.SOPHIE SCHOEPFEL
Harvard University
Moderator:Prabhakar Singh
Jindal Global Law School

MON, 26 APRIL 2021
6:OO PM – 7:OO PM

Topic: Semi-colonialism in Ethiopia
Presenter: HAILEGABRIEL FEYISSA
Melbourne Law School

Moderator: Lea Mehari Redae
Addis Ababa University

THU, 06 MAY 2021 6:00 PM -7:00 PM Topic: Semi-colonialism in Ethiopia
Presenter:PRASENJIT DUARA
Oscar Tang Chair of East Asian Studies, Duke University

Moderator: Prabhakar Singh
Jindal Global Law School

ORGANISERS
Prabhakar Singh and AGRA Sharma- Jindal Global Law School
Lea Mehari Redae- Addis Ababa University

Seminar on respecting and protecting health care during conflict/violence

Organized by the International Committee of the Red Cross (ICRC) and Addis Ababa University, School of Law

March 10, 2021, Addis Ababa

Background and rationale

Armed conflict and internal disturbances – such as violent protests and riots – cause injuries among those directly participating and those who get caught in the way. Serious injuries require medical attention, yet it is precisely at these moments of greatest need that health-care services are most vulnerable to disruption, interference and attack. Violence, both actual and threatened, hugely impacts upon accessibility of health services, at times threatening the lives of those who need the services most. Violence against or in the vicinity of medical facilities may also cause health personnel to flee, leaving a big void in the much-needed health care services- affecting not just those who are wounded in the fighting but also those that suffer from chronic illnesses that require regular care and follow-up. It may damage health facilities or vehicles, as well as hamper vital preventive health care programmes such as vaccination campaigns, resulting in serious health implications in the long-run. The fight to eradicate polio, for example, has faced setbacks in countries like Afghanistan, Pakistan and the Democratic Republic of the Congo, where the safety of vaccination teams is difficult to assure. The health care system shall be respected and protected at all times and shall not be the object of attack.

Against the backdrop of the concerning humanitarian issue of violence against health-care and the urgent need for a continued focus on the matter, the International Red Cross and Red Crescent Movement launched in 2011 the Health Care in Danger (HCiD) Initiative. The initiative aims at addressing the issue of violence against patients, health workers, facilities and vehicles, thus ensuring safe access to and delivery of health care in armed conflict and other emergencies. The initiative also underscores that all reasonable measures should be taken to ensure safe and prompt access to health care for the wounded and sick, in times of armed conflict or other emergencies, in accordance with the applicable legal frameworks, where relevant and appropriate, to adopt and effectively implement the required domestic measures, including legislative, regulatory and practical ones, to ensure respect for their international legal obligations pertaining to the protection of the wounded and sick and health-care personnel, facilities, and medical transports, and the protection and use of the distinctive emblems by authorized medical personnel, facilities and transports.

Participants

The participants will be drawn from lecturers of IHL and related fields of law such as human rights, international criminal law, and if feasible, from the medical and public health schools. Senior students who are engaged in the activities of the IHL clinic and the Ethiopian Red Cross Society will also participate in the seminar. The total number of participants is expected to be around 20.

Date/Venue: The seminar will be conducted on the 10th of March 2021 at Addis Ababa University, Law school building, room 8.

Expected Outcomes: After the seminar, it is expected that participants will have a very good grasp of the challenges surrounding respect and protection of health care globally (and, to a limited extent, in Ethiopia). The seminar will also hopefully serve as a stepping-stone for the envisioned collaboration with the IHL clinic of Addis Ababa University, to conduct an HCiD legal and administrative set-up review for Ethiopia. Participants will also be provided with selected resources that can serve as references for those interested in pursuing the topic further.

Resources for the Workshop

Main reference document: “Protecting Health Care: Key Recommendations”, available here.

additional reading (available for download in the Resource Center at www.healthcareindanger.org):

“The implementation of rules protecting the provision of health care in armed conflicts and other emergencies: a guidance tool”

“The responsibilities of health-care personnel working in armed conflict and other emergencies”

Contact Persons:

  • Raji Gezahegn, Legal adviser
  • Eyerusalem Teshome, Head of Prevention
  • Yosalem Negus, Director AAU IHL Clinc,ihlclinicaau@gmail.com

Schedule

TimeActivityResponsible
9:00- 9:30  Opening remarks/Welcome speech       Video: “One of the first victims of war is the health-care system”Abdi Jibril (Ph.D.), Head of Law School, Addis Ababa University   International Committee of the Red Cross (ICRC)
9:30-10:00Challenges facing the healthcare system amid conflicts: a snapshotAna Elisa M. Barbar  Adviser to the Health Unit, Health Care in Danger Initiative, ICRC International Committee of the Red Cross (ICRC)  
10:00-11:00The Health care in Danger Initiative of the RCRC Movement: What is it and the rationaleAna Elisa M. Barbar 

11:00-11:30 Health break😊
11:30- 12:30International legal frameworks for the protection of health care    Raji Gezahegn, Legal adviser, ICRC
12:30- 13:00Protection of Red Cross Emblem under Ethiopian LawTewodros Alamerew, Head of Legal Services, Ethiopia Red Cross Society (ERCS)
13:00-13:30Wrap up and next stepsEyerusalem Teshome, Head of Prevention, ICRC
13:30LunchFacilitators

The Ethio-Sudanese Border Conflict in the Disputed ‘Al-Fashqa’ Territory: What are the International Law Issues at Stake?

By: Marishet Mohammed Hamza and Fikire Tinsae Birhane

Background

Ethiopia and Sudan share a long border that stretches over 1,600 Kms. While large part of the border remains un-demarcated, it is mostly undisputed. There are, however, pockets of disputed lands, including ‘Al-Fashqa’, which lies in the northern tip of the shared boundary. According to Sudan, Al-Fashqa was demarcated as part of its territory under the 1902 treaty between Ethiopia and colonial Britain, representing Sudan. For long, it is Ethiopian farmers that reside and farm in Al-Fashqa. Sudan explains the reason for this is the 1978 agreement in which it has agreed to leave the soft border open to Ethiopian farmers who would operate under Sudanese law and pay taxes to it, while Ethiopia recognizes Sudan’s sovereignty over the land. Ethiopia rejects such claims and has been asserting its full sovereignty instead.

Recently, following accusations of attacks in Al-Fashqa against Sudanese civilians by armed militiamen(which Sudan alleged were supported by Ethiopia), Sudan’s military crossed into the disputed territory, attacked the villages and took control of a large part of the territory. The attacks, according to Ethiopia, took place since the first week of November 2020. Besides, there are also reports indicating military confrontations between the defence forces of the two countries.

Sudan has confirmed it has ‘(re)taken control of most of Sudanese territory in the disputed border area which was under the Ethiopian farmers’. However, Ethiopia persistently accuses Sudan of intruding into, and carrying out organized attacks and forcefully taking control of its land. Sudan, on its part, accuses Ethiopia of supporting continued attacks by local militiamen and, also, violation of its airspace by an Ethiopian fighter-jet. Ethiopia rejects these claims too. The tensions have further escalated and, on 15 February 2021, Sudanese foreign ministry has accused Ethiopian forces of trespassing into Sudanese land ‘in an act of aggression’. Similarly, the Ethiopian foreign ministry condemned Sudan for its continued provocative behaviour, violation of boundary agreements, and called upon it to ‘reverse [its] aggression’.

Is the Use of Force by Sudan (un)lawful?

It is an established principle of international law that States shall refrain from the threat or use of force in their international relations ‘against the territorial integrity or political independence’ of other States(UN Charter, Article 2(4)). The only exception for this is the right to self-defence to repel an armed attack(UN Charter, Article 51). Thus, unless justified under the exception, the threat or use of force might constitute an armed attack, and violation of the UN Charter. Despite this proscription, States might still resort to the use of force; in which case a situation of armed conflict occurs and the propriety of resorting to force could become an international law issue.

The prohibition under Article 2(4) of the UN Charter equally applies to disputed territories (C. Yiallourides et al, 2018, p.). The obligation under Article 2(4) supplements Article 2(3) of the Charter, which requires States to settle their disputes through peaceful means. These obligations were reaffirmed in the 1970 UN General Assembly Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, which provides that States have a duty ‘to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States’ (Principle 1). The International Court of Justice (ICJ) has observed that the adoption by the majority of States of the Declaration ‘affords an indication of their opinio juris as to customary international law on the question’ (Nicaragua judgement, para.191). Accordingly, ‘under the UN Charter and customary international law, the resort to force is never an acceptable means of altering an existing territorial status quo, including in situations of disputed territories’ (C. Yiallourides et al: p. 90).

Turning to our case, Sudan has officially acknowledged its attacks in the disputed Al-Fashqa area and forcefully retaking the disputed territory. Manifestly, these acts constitute use of force as contemplated under international law. As the attacks have occurred against a territory which Ethiopia categorically and in strongest terms claims as part of its sovereign territory, arguably, the Sudanese acts could be regarded as attacks directed against the sovereignty and territorial integrity of Ethiopia.

Sudan has not yet justified its attacks and the forceful control of part of the disputed land under the self-defence exception. This could have invited assessment of whether its armed attack might be in tune with the UN Charter. Though there has not been such a claim, one should examine whether the alleged attacks (against Sudanese civilians and military) within the disputed land by the local (Ethiopian) militiamen could be regarded as an armed attack to which Sudan could invoke the right to self-defence.

The ICJ, in its Nicaragua judgement (para.195) has made it clear that the concept of ‘armed attack’ in the context of the right to self-defence is limited to ‘actions by states’. Regarding an armed attack by a non-state armed group (such as the local militiamen), it will constitute an armed attack if it could be proven that a State has ‘financed, armed and trained the armed group’ and sends it over a border to engage in use of force against another State (ibid). Similarly, International Law Commission’s (ILC) draft articles on responsibility of states for internationally wrongful acts provides for situations where a certain conduct can be attributed to a State, and thereby entail its international responsibility. As described above, Sudan acknowledged waging military attacks against the Ethiopian militiamen in Al-Fashqa and forcefully retaking most of the villages in the disputed territory. Accordingly, there is no question that this conduct is attributable to Sudan (Article 4, ILC Draft Articles).

However, even if Sudan’s claim that the (Ethiopian) militiamen had attacked Sudanese civilians prior to the Sudanese military attacks in the Al-Fashqa area is true, there still is a question whether the militiamen’s conduct can be attributed to Ethiopia. The relevant provision in the ILC draft articles provides that ‘the conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct’ (id, Art 8).

In addition, according to the ICJ, not all incidents by armed forces (including non-state armed groups) constitute armed attacks that entitle States to use counter-force in self-defence; rather, it has to be a ‘grave form of the use of force as distinguished from other less grave forms’ (Nicaragua judgement, para.191). Accordingly, even if it were possible to attribute the local militiamen’s attack to Ethiopia, for Sudan to invoke the right to self-defence, it has to be proven that the attacks were a ‘grave form of the use of force’. On top of that, as the incidents happened in a disputed territory, it has to also be established that the alleged militiamen attacks occurred against Sudan’s sovereign territory. The mere allegation that Ethiopian-militiamen had attacked Sudanese civilians may not suffice to consider the events as an armed attack against Sudan as a State.

In sum, ‘forcible means cannot be used to gain control over a disputed territory or to alter in any way the existing factual situation on the ground in the attacking State’s favour. Moreover, force cannot be used to correct retroactively situations of perceived past injustice on grounds of self-defence’ (C. Yiallourides et al: pp. 90-91). A State cannot also legitimately invoke a right of self-defence to gain control over a disputed area which is under the de facto control and administration of another State, on the basis of rectifying a situation of unlawful possession or generally correcting a ‘past injustice’ (C. Yiallourides et al: p. 77).

Is there an International Armed Conflict?

While resorting to war(armed attacks) in violation of the UN Charter prohibition on the use of force is a jus ad bellum question, the issue of whether there actually exists an international armed conflict (IAC) is a jus in bello question, which pertains to the applicable international humanitarian law (IHL) rules.

Both Ethiopia and Sudan are state parties to the four Geneva Conventions of 1949(GCs) and their two additional protocols of 1977. According to Common Article 2 to the GCs, the Conventions apply to ‘all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, … [and] to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance’. Additional Protocol I(API) applies to similar situations(Article 1(3)). Generally, according to IHL, two situations trigger an IAC: an armed conflict between two or more States (a declaration of war may also trigger the applicability (M. Sassòli, 2019, p.169)) and occupation of the territory of another State.

According to Sassòli, the existence of an IAC is a question of fact that exists ‘if someone attributable to a State commits acts of violence against persons or objects representing another State’ (ibid). To distinguish from acts which are unintentional or done mistakenly/in error, it is suggested that the act must be approved by the ‘highest authorities of the State’ (ibid).

Based on the above assessment, the Sudanese military’s organized armed attack in Al-Fashqa could be taken as a sufficient fact to prove the existence of an IAC between the two countries. Reports of military confrontation between the defence forces of the two countries further corroborate this.

Status of Al-Fashqa, is it an Occupied Territory?

While Sudan claims retaking control of a disputed territory, Ethiopia accuses Sudan of ‘occupying’ its land. Under the Hague Regulations (Article 42), ‘a territory is considered occupied when it is actually placed under the authority of the hostile army’. Conventionally, there are three fundamental criteria that will be used to establish whether a situation constitutes an occupation: effective control by one State of part or whole of the territory of another State, loss of effective control by the invaded State, and lack of consent by the State that lost control over territory. (M. Sassòli, 2019, pp.303-305).

Thus, control over territory constitutes an occupation, and obligations of an occupying force follows, where a State invades and took control of a territory that belongs to another State. In our case, Sudan claims it has retaken control of its own territory. Indeed, under the law of occupation, if a State ‘liberates its own territory that was previously occupied’ by an adversary and regains control, it would not constitute an occupation (ibid, p.313). Nonetheless, where sovereignty over a territory is disputed, the claim of retaking control over territory (like Sudan’s claim over Al-Fashqa) will not exclude the applicability of the law of occupation (ibid). In other words, though a State controls a territory it considers to be its own, it would still constitute an occupation, if sovereignty is contested by the adversary (E. Benvenisti, 2019, p.59; A. Roberts, 1984, 55 BYBIL 249, p.280).

In light of Ethiopia’s assertion of sovereignty over the territory, one could easily see that sovereignty over Al-Fashqa remains a disputed one, and, in that case, it is reasonable to conclude that Al-Fashqa can be considered an occupied territory to which IHL of occupation would be applicable.

Conclusion

In light of the UN Charter prohibition on the use of force, which equally applies to disputed territories like Al-Fashqa, Sudan’s forceful entry into Al-Fashqa and (re)taking control of territories that were under the de facto control and administration of Ethiopia makes its act unlawful under international law. Also, the undisputed armed attacks in Al-Fashqa and alleged military confrontation between the defence forces of the two countries along with the situation of occupation of Al-Fashqa establish existence of an IAC between Ethiopia and Sudan.

Authors Bio

1.Marishet Mohammed Hamza

PhD Student at the Graduate Institute of International and Development Studies, Genève

Email: marishetm@yahoo.com/ marishet.mohammed@graduateinstitute.ch

2. Fikire Tinsae Birhane

PhD Student at the Institute of International and Comparative Law in Africa, University of Pretoria;

Lecturer of Laws and Human Rights, School of Law, Hawassa University.

Email: ftinsae@gmail.com/ fikire.birhane@graduateinstitute.ch

http://www.icla.up.ac.za/doctoral-students/59-about-us/students/451-fikire-tinsae-birhane

Ensuring Respect for IHL by Kenya and Uganda in South Sudan

By:- Dr Kenneth Wyne Mutuma

Despite its domestication of all the major IHL treaties, South Sudan has, for some time now, been embroiled in conflict. First, it was involved in a Civil War to secede from Sudan and later on, there was the war between the government and different armed groups. These wars have resulted in gross human rights violations committed by the government as well as the armed groups. The warring parties in South Sudan have demonstrated an abrogation of the IHL obligations and thus, there is a pressing need to examine how the legal obligations of State Parties to IHL treaties can be better respected and enforced. CA1 is a distinct mechanism through which Kenya and Uganda can help in ensuring respect for IHL obligations by South Sudan. CA1 imposes positive obligations on State Parties mandating them to take some action to stop the violations of IHL. In this way, it uniquely places a duty, and not simply a right, to take action to ensure respect for IHL.

Kenya, Uganda and the Conflict in South Sudan

Both Kenya and Uganda are State Parties to the IHL treaties, just like South Sudan. They have ratified the Geneva Conventions and are accordingly bound by the obligations therein. The two have also enacted laws to punish certain international crimes; Kenya with its International Crimes Act 2008, and Uganda with its International Crimes Act 2010. The geographical position of Kenya and Uganda has significantly contributed to their successful strong economic relations with South Sudan. Both countries are major import partners for South Sudan.

On its part, Kenya has professed neutrality in the ongoing conflict in South Sudan. Nonetheless, Kenya has built close political and economic ties with the government of South Sudan; an interaction that may give rise to obligations incumbent on Third States, including those under CA1. On the other hand, Uganda has in the past participated as a party to the conflict in South Sudan by providing military support and facilitating the supply of military arms and equipment. The involvement of Uganda in the conflict gives it leverage in terms of the influence it can bring to bear the South Sudan government for purposes of CA1.  The unique relationship as a partner to a conflict provides an opportunity for Uganda to encourage respect for IHL by South Sudan.

In line with their obligations under CA1, Kenya and Uganda may explore some of the measures discussed below:

  1. Preventing South Sudanese From Profiting From IHL Violations

Kenya and Uganda have been strategic partners with South Sudan in economic relations owing to their geographical proximity. Consequently, Kenya and Uganda have been conduits of majority of the imports into South Sudan. These imports are mainly commercial goods, including arms and military hardware. Kenya has further been economically relating with South Sudan through its banking system and real estate sector. Since it has the most developed financial sector in the region, Kenya’s banking system serves as a center and conduit for the region’s financial transactions. Most of the South Sudan financial transactions are conducted through Kenyan owned banks. It has been alleged that South Sudan leaders use Kenyan banks for alleged illicit financial transactions. Moreover, the profitable real estate sector in Kenya has become convenient for South Sudan leaders trying to launder their proceeds of illicit wealth acquired during the armed conflict. The intimate socio-economic and political interaction between Kenyan, Ugandan and South Sudanese leaders provide ample leverage for employing forms of punitive trade measures in order to pressure South Sudan to comply with the obligations of IHL.For instance, Kenya can apply such pressure by freezing the funds and property that South Sudanese leaders have invested through Kenya’s banking and real estate industry.

  • Peace Building

Kenya and Uganda can fulfill their duty under CA1 by exerting meaningful diplomatic pressure upon the government of South Sudan. Given Kenya’s neutrality and past involvement as a mediator and peacebuilder, there is a plausible chance for exerting pressure upon the warring factions in South Sudan in line with their responsibilities to respect IHL. Uganda’s past participation as party to the conflict elevates its position to engage in discreet communication urging the South Sudanese government forces to refrain from IHL violations. The IHL mechanisms adopted by regional bodies like the East Africa Commission (EAC) and international organizations like the International Fact Finding Commission (IFFC) may also be embraced by Kenya and Uganda.

  • Preventing and Punishing War Crimes

The War Crimes in South Sudan amount to a contravention of jus cogens and thus, they attract concern from all States. Based on the principle of universal jurisdiction, Kenya and Uganda have the right to exercise jurisdiction over violations committed by individuals linked to the South Sudanese government. In as much as the victims are not their nationals, Kenya and Uganda have a legal interest in ensuring the protection of their rights. Pursuant to their duty under CA1, Kenya and Uganda ought to take measures to prevent and punish the war crimes. In doing so, impartiality must be guaranteed. The respective judiciary should be independent while adjudicating over the violations of IHL in South Sudan. Failure to do so would undermine the prerequisite for neutrality embedded in the rule of law and the central premise that international justice is aimed at seeking justice for the whole international community. The punishment of the South Sudanese perpetrators will act as a deterrent to future violations of IHL because it will portray the ideal of law with “teeth”.

  • Preventing Trade in Arms

Both Kenya and Uganda have served as channels for arms and ammunition flowing into South Sudan. Such support may arguably establish the necessary attributable nexus with IHL violations. Kenya and Uganda may therefore be indirectly responsible for the atrocities committed by the parties and can be construed as rendering aid to a party to a conflict. In this regard, the duty under CA1 is significant because it imposes positive obligations upon States like Kenya and Uganda. The provisions demand that Kenya and Uganda should undertake actions that ensure IHL is respected by the South Sudanese government and warring factions.

From the foregoing, it can be concluded that in as much as there is an adequate legal framework for IHL, there has still been numerous atrocities and violations as evidenced by South Sudan. Therefore, Third States like Kenya and Uganda play a significant role towards encouraging and promoting respect for IHL rules by South Sudan. The political and economic capacity and influence of Kenya and Uganda over South Sudan can help in achieving this. CA1 foresees a responsibility incumbent upon each State to take measures aimed at increasing the respect of IHL by warring parties.

Dr. Mutuma is a senior lecturer at the University of Nairobi, School of Law. Dr Mutuma holds a
PhD and LL.M degree from the University of Cape Town and an LL.B from the University of
Liverpool. He is also a partner at law firm in Nairobi and possesses 21 years’ experience in the
practice of law.

The conflict in Tigray: “an armed conflict” or “a law enforcement operation’’: resolving the puzzle and its legal relevance.

Author: Marishet Mohammed Hamza

Image Source: https://www.dw.com/en/ethiopian-army-marches-on-tigray-capital/a-55644585

Keywords: NIAC, armed conflict, armed attack, law enforcement, Tigray conflict, Ethiopia.

Characterization of the situation : An ‘armed conflict’?

On 04 November 2020, Prime Minister Abiy Ahmed (Ph.D.) has appeared on national TV and broke the news of an armed attack on the National Defence Force’s (NDF) contingent stationed in Tigray region – called, the Northern Command (NC) by the ruling party in the region- Tigray Peoples Liberation Front (TPLF) through its military branch, the Special Police Force (SPF). Forthwith, as the commander-in-chief of the NDF Abiy ordered the NDF to launch a military operation against the perpetrators of the armed attack against the NC. In a subsequent statement the PM had explicitly regarded the TPLF’s armed attack, the NDF’s counterattack, and the overall situation as a “situation of war.

On the same day, a press release by the Office of the Prime Minister accused TPLF  of waging war and the war has occurred despite the Federal Government’s determination to avoid one. Therefore, “the Federal government is forced into a military confrontation” and the NDF is ordered to carry out the mission. Similarly, the State of Emergency decree adopted by the Council of Ministers on November 04 has made it clear that the situation in Tigray ‘cannot be prevented and controlled through the regular law enforcement mechanisms’. Impliedly, suggesting that the measure resorted to is a military (counter) attack – in other words, war.

The belligerent TPLF’s chairperson and the president of Tigray Region Debretsion Gebremichael (PhD), the next day after the attack on NC, affirmed the existence of war with the Federal Government forces and that the region was well armed to fend-off any armed attack.

Thus, from the get-go, both parties, particularly the Federal Government, have characterized the conflict and their respective military engagement as an armed confrontation involving – thus, an act of war; it was not (initially) regarded as a law enforcement operation.

No, it is a ‘law enforcement’ operation!

Few days after the military confrontation, the Federal Government has switched its characterization of the ongoing hostility and designated the military engagement as a ‘law enforcement’ operation. The PM, in a video statement on November 08 – apparently addressed to the international community – has affirmed and stressed that the Federal Government has engaged in the constitutional order and rule of law maintenance operation.  It is a law enforcement operation aimed at ending what the PM called an ‘impunity and criminality by the TPLF ‘clique’; thus, there is no armed confrontation or a situation of war, but a law enforcement operation.

Thenceforth, the new designation has become a mantra and the Federal Government, other regional governments, public media, military personnel, and almost everyone on the central government side call the situation a ‘law enforcement’. There seemed to be a campaign – in all public relation fronts – to call the situation by its new name. Law enforcement! Not a War!

Why would the prescription be relevant?

Naming the hostility either as a war or law enforcement operation may have its own constitutional and legal significance. But from the perspective of international law obligations (particularly, IHL obligations), the implications of such prescription would be less since such obligations are triggered based on the facts, not necessarily based on the characterisation.

From the point of view of the Constitution of the Federal Democratic Republic of Ethiopia (FDRE Constitution), a situation would constitute war (armed conflict) only if it is declared as such by the House of Peoples Representatives (HPR), the lower legislative body, upon a draft declaration the Council of Ministers submits (FDRE Constitution, Art.55(9) and 77). The Constitution does not make it clear when such a declaration could be made. But the one thing clear is that a war (an armed conflict) requires a declaration by the HPR. On the other hand, upon authorization by the House of Federation (HoF), the upper house, the Federal Government may intervene in any part of the country to control a breakdown of law and order (FDRE Constitution, Art.62).[1] It was through this procedure that the Federal Government was authorized to intervene in Tigray. However, constitutionally speaking, such an intervention is different from a state of armed conflict or a declaration of war. From this, it will safely be concluded that the FDRE Constitution does not envisage armed conflict (war) against local forces or forces of regional governments such as the Tigray SPF. In other words, the Federal Government would violate the Constitution if it has continued to describe the military operation as an armed conflict or war.

In light of the international law obligations of the Country, the designation as ‘armed conflict’, ‘law enforcement’ or, maybe, as a ‘war’ would be less relevant. Generally, the meaning of the word ‘war’ today signifies more of an inter-state armed conflict than a non-international armed conflict (NIAC) or also called a civil war (this is also an outdated expression). Thus, in reference to a NIAC, the habitual description is ‘armed attack’, not war. Related to this, States are also generally reluctant, since the inception of the law of NIAC, to characterize a situation as an armed attack and to invite the applicability of international law.[2] They consider it as an unnecessary intrusion into their sovereign discretion on domestic matters.

In the Tigray conflict as well, one could observe this tendency on the Ethiopian Government side. On its November 25 press release, the Prime Minister’s Office has invoked the principle of non-intervention in internal affairs and asserted its “right to uphold and enforce its laws within its own territory”. The press release does not mention international obligations, except a pass mention of ensuring protections for the civilian population. This may indicate, as it was in the past, the continued resistance of states to trigger and enforce IHL in the case of NIACs.

International obligations are triggered irrespective of the government’s description

Ethiopia is a party to international human rights and international humanitarian law (IHL) treaties that are applicable during situations of conflict or armed hostilities. Human rights laws are always applicable, including in situations of armed hostilities to the extent they are not displaced by the rules of IHL. Whereas IHL in this case, IHL of non-international armed conflicts (NIAC), applies to an armed conflict only if the required thresholds, i.e., the intensity of the hostility and organization of the armed group(s), are met. Indeed, the Additional Protocol to Geneva Conventions and related to NIACs (AP II) has further requirements that have to be met to trigger its applicability.

As mentioned above the international obligations of the Federal Government (and, implicitly that of the belligerent TPLF forces) are triggered based on the facts on the ground. Thus, for IHL (of NIAC) obligations, the necessary precondition is the existence of an armed conflict and if that is proved (along with the required thresholds), the obligations kick-off. Fikre Tinsae and Fekade Alemayehu in their respective blogposts (here and here) have addressed the IHL applicability and classification issues and I do agree with their conclusion that IHL is fully applicable to the conflict in Tigray. Thus, despite the legal characterization of the hostility, the Federal Government is bound to respect both its human rights and IHL obligations during the overall situations.

A glimpse at some of the international law obligations

Human rights law

As mentioned above, human rights laws continue to apply in situations of armed conflicts to which IHL also applies subject to interpretation concerning IHL rules in case of conflict of norms.

One of the human rights that is directly implicated due to the hostility is the right to life. The right to life is non-derogable during a state of emergency, including during war (ICCPR, Art.4(2)). The African Charter on Human and Peoples’ Rights does not have an explicit provision on derogation. The African Commission has, however, interpreted this to mean the prohibition of derogation at all times (AComHPR, GC 3, para.1). Inter alia, this right prohibits arbitrary use of lethal force and arbitrary killings. In the context of armed conflicts, deprivation of life will be arbitrary it is inconsistent with international law (Human Rights Committee, GC.36, para.64). Therefore, during the hostility in Tigray, the Government forces (and TPLF) must respect the right to life of civilians in general. Members of the armed forces who laid down arms or hors de combat shall also be protected against arbitrary deprivation of life.

More generally, concerning the State of Emergency declared within Tigray Regional State as well, the Federal Government must ensure that its implementation is consistent with its international human rights obligations. For instance, a blanket State of Emergency declaration that does not enumerate restrictions could open the leeway for human rights violations.

Finally, concerning allegations of crimes against humanity (or, war crimes) such as the civilian massacre in a place called Mai Kadra (here and here) the Federal Government is obliged under international human rights law to make an investigation , prosecute and punish the perpetrators (HRC GC.36, para.64).

International humanitarian law 

Under IHL, the parties to the conflict have specific obligations with respect to civilians, civilian properties, and belligerent combatants who are placed hors de combat (GCs, Common Article 3 (CA 3)). The list of obligations during military operations include prohibition: to direct attack against civilians or civilian population (ICRC Customary Law Studies (CIHL), Rule 6) and civilian objects (CIHL, Rule 7); of attacks directed against civilian population or objects by way of reprisal (CIHL, Rule 148); to attack against persons who are hors de combat (CIHL, Rule 47); of indiscriminate attacks (CIHL, Rule 12(a)); of using civilians to shield military objects from attack or to impede military operations (CIHL, Rule 97). Parties to the conflict must take precautionary measures to spare civilians, civilian population, and civilian objects from attack (CIHL, Rule 16 and 17).

Wounded and sick persons owing to the conflict whether military personnel (belligerents) or civilians shall also be respected, protected, and humanely treated (GCs, CA3; CIHL, Rules 111). Similarly, detained belligerents (captured or surrendered during the hostilities) shall be treated humanely and IHL prohibits violence to their life and person, cruel treatment, and torture (GCs, CA3; APII, Arts.4-6). AP II also encourages the parties to the conflict to provide a “widest possible amnesty” to members of the belligerent armed captured or surrendered during the hostility (AP II, Art.6(5)).

Concerning humanitarian assistance, parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need (GCs, CA3; APII, Art.18(2); and CIHL, Rule 55). In addition, it is prohibited to use starvation of civilians as a method of warfare (AP II, Art.14; CIHL, Rule 53).


[1] Indeed, both the Council of Ministers and the HPR have the power to declare a state of emergency should a breakdown of law and order which cannot be controlled by the regular law enforcement agencies arise. However, such a declaration alone does not entitle the Federal Government to deploy federal forces or the army in a regional state, authorization from the House of Federation is required (FDRE Constitution, Art.93)

[2] A. Cassese, ‘Current Trends in the Development of the Law of Armed Conflict’, in A. Cassese, The Human Dimension of International Law: Selected Papers, OUP, 2008, pp.3-38.

Marishet Mohammed Hamza is Ph.D. Student at the Graduate Institute of International and Development Studies, Genève. He can be reached at Email: marishetm@yahoo.com