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.
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”
- Raji Gezahegn, Legal adviser
- Eyerusalem Teshome, Head of Prevention
- Yosalem Negus, Director AAU IHL Clinc,firstname.lastname@example.org
|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)|
|9:30-10:00||Challenges facing the healthcare system amid conflicts: a snapshot||Ana Elisa M. Barbar Adviser to the Health Unit, Health Care in Danger Initiative, ICRC International Committee of the Red Cross (ICRC)|
|10:00-11:00||The Health care in Danger Initiative of the RCRC Movement: What is it and the rationale||Ana Elisa M. Barbar |
|11:30- 12:30||International legal frameworks for the protection of health care||Raji Gezahegn, Legal adviser, ICRC|
|12:30- 13:00||Protection of Red Cross Emblem under Ethiopian Law||Tewodros Alamerew, Head of Legal Services, Ethiopia Red Cross Society (ERCS)|
|13:00-13:30||Wrap up and next steps||Eyerusalem Teshome, Head of Prevention, ICRC|
By: Marishet Mohammed Hamza and Fikire Tinsae Birhane
Ethiopia and Sudan share a long border that stretches over 1,600 Kms. While large part of the border remains un-demarcated, it is mostly undisputed. There are, however, pockets of disputed lands, including ‘Al-Fashqa’, which lies in the northern tip of the shared boundary. According to Sudan, Al-Fashqa was demarcated as part of its territory under the 1902 treaty between Ethiopia and colonial Britain, representing Sudan. For long, it is Ethiopian farmers that reside and farm in Al-Fashqa. Sudan explains the reason for this is the 1978 agreement in which it has agreed to leave the soft border open to Ethiopian farmers who would operate under Sudanese law and pay taxes to it, while Ethiopia recognizes Sudan’s sovereignty over the land. Ethiopia rejects such claims and has been asserting its full sovereignty instead.
Recently, following accusations of attacks in Al-Fashqa against Sudanese civilians by armed militiamen(which Sudan alleged were supported by Ethiopia), Sudan’s military crossed into the disputed territory, attacked the villages and took control of a large part of the territory. The attacks, according to Ethiopia, took place since the first week of November 2020. Besides, there are also reports indicating military confrontations between the defence forces of the two countries.
Sudan has confirmed it has ‘(re)taken control of most of Sudanese territory in the disputed border area which was under the Ethiopian farmers’. However, Ethiopia persistently accuses Sudan of intruding into, and carrying out organized attacks and forcefully taking control of its land. Sudan, on its part, accuses Ethiopia of supporting continued attacks by local militiamen and, also, violation of its airspace by an Ethiopian fighter-jet. Ethiopia rejects these claims too. The tensions have further escalated and, on 15 February 2021, Sudanese foreign ministry has accused Ethiopian forces of trespassing into Sudanese land ‘in an act of aggression’. Similarly, the Ethiopian foreign ministry condemned Sudan for its continued provocative behaviour, violation of boundary agreements, and called upon it to ‘reverse [its] aggression’.
Is the Use of Force by Sudan (un)lawful?
It is an established principle of international law that States shall refrain from the threat or use of force in their international relations ‘against the territorial integrity or political independence’ of other States(UN Charter, Article 2(4)). The only exception for this is the right to self-defence to repel an armed attack(UN Charter, Article 51). Thus, unless justified under the exception, the threat or use of force might constitute an armed attack, and violation of the UN Charter. Despite this proscription, States might still resort to the use of force; in which case a situation of armed conflict occurs and the propriety of resorting to force could become an international law issue.
The prohibition under Article 2(4) of the UN Charter equally applies to disputed territories (C. Yiallourides et al, 2018, p.). The obligation under Article 2(4) supplements Article 2(3) of the Charter, which requires States to settle their disputes through peaceful means. These obligations were reaffirmed in the 1970 UN General Assembly Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, which provides that States have a duty ‘to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States’ (Principle 1). The International Court of Justice (ICJ) has observed that the adoption by the majority of States of the Declaration ‘affords an indication of their opinio juris as to customary international law on the question’ (Nicaragua judgement, para.191). Accordingly, ‘under the UN Charter and customary international law, the resort to force is never an acceptable means of altering an existing territorial status quo, including in situations of disputed territories’ (C. Yiallourides et al: p. 90).
Turning to our case, Sudan has officially acknowledged its attacks in the disputed Al-Fashqa area and forcefully retaking the disputed territory. Manifestly, these acts constitute use of force as contemplated under international law. As the attacks have occurred against a territory which Ethiopia categorically and in strongest terms claims as part of its sovereign territory, arguably, the Sudanese acts could be regarded as attacks directed against the sovereignty and territorial integrity of Ethiopia.
Sudan has not yet justified its attacks and the forceful control of part of the disputed land under the self-defence exception. This could have invited assessment of whether its armed attack might be in tune with the UN Charter. Though there has not been such a claim, one should examine whether the alleged attacks (against Sudanese civilians and military) within the disputed land by the local (Ethiopian) militiamen could be regarded as an armed attack to which Sudan could invoke the right to self-defence.
The ICJ, in its Nicaragua judgement (para.195) has made it clear that the concept of ‘armed attack’ in the context of the right to self-defence is limited to ‘actions by states’. Regarding an armed attack by a non-state armed group (such as the local militiamen), it will constitute an armed attack if it could be proven that a State has ‘financed, armed and trained the armed group’ and sends it over a border to engage in use of force against another State (ibid). Similarly, International Law Commission’s (ILC) draft articles on responsibility of states for internationally wrongful acts provides for situations where a certain conduct can be attributed to a State, and thereby entail its international responsibility. As described above, Sudan acknowledged waging military attacks against the Ethiopian militiamen in Al-Fashqa and forcefully retaking most of the villages in the disputed territory. Accordingly, there is no question that this conduct is attributable to Sudan (Article 4, ILC Draft Articles).
However, even if Sudan’s claim that the (Ethiopian) militiamen had attacked Sudanese civilians prior to the Sudanese military attacks in the Al-Fashqa area is true, there still is a question whether the militiamen’s conduct can be attributed to Ethiopia. The relevant provision in the ILC draft articles provides that ‘the conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct’ (id, Art 8).
In addition, according to the ICJ, not all incidents by armed forces (including non-state armed groups) constitute armed attacks that entitle States to use counter-force in self-defence; rather, it has to be a ‘grave form of the use of force as distinguished from other less grave forms’ (Nicaragua judgement, para.191). Accordingly, even if it were possible to attribute the local militiamen’s attack to Ethiopia, for Sudan to invoke the right to self-defence, it has to be proven that the attacks were a ‘grave form of the use of force’. On top of that, as the incidents happened in a disputed territory, it has to also be established that the alleged militiamen attacks occurred against Sudan’s sovereign territory. The mere allegation that Ethiopian-militiamen had attacked Sudanese civilians may not suffice to consider the events as an armed attack against Sudan as a State.
In sum, ‘forcible means cannot be used to gain control over a disputed territory or to alter in any way the existing factual situation on the ground in the attacking State’s favour. Moreover, force cannot be used to correct retroactively situations of perceived past injustice on grounds of self-defence’ (C. Yiallourides et al: pp. 90-91). A State cannot also legitimately invoke a right of self-defence to gain control over a disputed area which is under the de facto control and administration of another State, on the basis of rectifying a situation of unlawful possession or generally correcting a ‘past injustice’ (C. Yiallourides et al: p. 77).
Is there an International Armed Conflict?
While resorting to war(armed attacks) in violation of the UN Charter prohibition on the use of force is a jus ad bellum question, the issue of whether there actually exists an international armed conflict (IAC) is a jus in bello question, which pertains to the applicable international humanitarian law (IHL) rules.
Both Ethiopia and Sudan are state parties to the four Geneva Conventions of 1949(GCs) and their two additional protocols of 1977. According to Common Article 2 to the GCs, the Conventions apply to ‘all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, … [and] to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance’. Additional Protocol I(API) applies to similar situations(Article 1(3)). Generally, according to IHL, two situations trigger an IAC: an armed conflict between two or more States (a declaration of war may also trigger the applicability (M. Sassòli, 2019, p.169)) and occupation of the territory of another State.
According to Sassòli, the existence of an IAC is a question of fact that exists ‘if someone attributable to a State commits acts of violence against persons or objects representing another State’ (ibid). To distinguish from acts which are unintentional or done mistakenly/in error, it is suggested that the act must be approved by the ‘highest authorities of the State’ (ibid).
Based on the above assessment, the Sudanese military’s organized armed attack in Al-Fashqa could be taken as a sufficient fact to prove the existence of an IAC between the two countries. Reports of military confrontation between the defence forces of the two countries further corroborate this.
Status of Al-Fashqa, is it an Occupied Territory?
While Sudan claims retaking control of a disputed territory, Ethiopia accuses Sudan of ‘occupying’ its land. Under the Hague Regulations (Article 42), ‘a territory is considered occupied when it is actually placed under the authority of the hostile army’. Conventionally, there are three fundamental criteria that will be used to establish whether a situation constitutes an occupation: effective control by one State of part or whole of the territory of another State, loss of effective control by the invaded State, and lack of consent by the State that lost control over territory. (M. Sassòli, 2019, pp.303-305).
Thus, control over territory constitutes an occupation, and obligations of an occupying force follows, where a State invades and took control of a territory that belongs to another State. In our case, Sudan claims it has retaken control of its own territory. Indeed, under the law of occupation, if a State ‘liberates its own territory that was previously occupied’ by an adversary and regains control, it would not constitute an occupation (ibid, p.313). Nonetheless, where sovereignty over a territory is disputed, the claim of retaking control over territory (like Sudan’s claim over Al-Fashqa) will not exclude the applicability of the law of occupation (ibid). In other words, though a State controls a territory it considers to be its own, it would still constitute an occupation, if sovereignty is contested by the adversary (E. Benvenisti, 2019, p.59; A. Roberts, 1984, 55 BYBIL 249, p.280).
In light of Ethiopia’s assertion of sovereignty over the territory, one could easily see that sovereignty over Al-Fashqa remains a disputed one, and, in that case, it is reasonable to conclude that Al-Fashqa can be considered an occupied territory to which IHL of occupation would be applicable.
In light of the UN Charter prohibition on the use of force, which equally applies to disputed territories like Al-Fashqa, Sudan’s forceful entry into Al-Fashqa and (re)taking control of territories that were under the de facto control and administration of Ethiopia makes its act unlawful under international law. Also, the undisputed armed attacks in Al-Fashqa and alleged military confrontation between the defence forces of the two countries along with the situation of occupation of Al-Fashqa establish existence of an IAC between Ethiopia and Sudan.
1.Marishet Mohammed Hamza
PhD Student at the Graduate Institute of International and Development Studies, Genève
2. Fikire Tinsae Birhane
PhD Student at the Institute of International and Comparative Law in Africa, University of Pretoria;
Lecturer of Laws and Human Rights, School of Law, Hawassa University.
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:
- 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.
Author: Marishet Mohammed Hamza
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). 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. 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).
 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)
 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: email@example.com
Author: Helina Stiphanos
About a year ago, 18 Amhara students of Dembi Dolo University were fleeing from the unrest in their University. While they were on their way to Gambela, the students were kidnapped in Wollega, Oromia region. One of them managed to escape and gave a testimony of the incident to the news outlet Addis Standard. The rest, most of whom are female, have disappeared without a trace. They have not been heard of since. On the anniversary of their disappearance, Helina discusses if kidnapping of civilian girls and women can be a violation of International Humanitarian Law.
Key Words: Kidnapping, Non-International Armed Conflicts, Non-State Armed Groups, Girls, Women.
Kidnapping of Civilian Girls and Women by Non-State Armed Groups
#BringBackOurGirls, a social media campaign started in Nigeria, was a result of an outrageous kidnapping of 276 girls from their school in Chibok. The girls were kidnapped by Boko Haram, a non-state armed group (NSAG), as a retaliation to the ‘nabbing’ of the wives and children of the group’s members by Nigerian authorities. This was, however, just the first step to the evolution of the group’s tactics towards instrumental use of girls and women in non-international armed conflicts (NIACs). Shortly after the kidnapping in April 2014, a middle-aged woman became the first female bomber for the group. Since then, even girls as young as 7 years old have been used as suicide bombers. A 2018 UNICEF press release states that more than 1,000 children have been kidnapped by Boko Haram in north-eastern Nigeria between 2013 and 2017. Between January and August 2017, the use of children as ‘human bombs’ intensified with 83 children, 55 of whom were girls, having been used as such. Unfortunately, the kidnapping of the Chibok girls was neither the first nor the last of such acts, by Boko Haram and/or other NSAGs.
Kidnapping, IHLs Violation?
The regulation of NIACs relies on extremely limited legal instruments – Common Article 3 to the Geneva Conventions and Additional Protocol II (APII) – and a strong Customary International Humanitarian Law contribution. Yet, none have defined kidnapping. Even the jurisprudence of multiple international courts and tribunals have disregarded this. In this blog post, kidnapping is defined as the forcible removal of civilian girls and women from their environment by NSAGs.
IHLs apply once a situation reaches an armed conflict which arises when elements of opposing armed forces are engaged in an attack. Attacks are acts of violence against the adversary whether in offence or defence. It is the use of armed forces to carry out a military operation at the beginning or during the course of armed conflict, a definition applicable in NIACs too. Thus, kidnappings can constitute attacks as long as they are carried out by a party to an armed conflict in furtherance of a military operation or as one by itself, at the beginning or during the course of armed conflicts.
The applicability of IHLs to NSAGs is widely accepted. Hence, they are required to respect the rights of civilians to be protected from being objects of attack. The distinction of civilians and combatants/members of NSAGs is a pillar of IHLs. This protection lasts for as long as civilians refrain from taking direct part in hostilities (DPH). Accordingly, girls are protected by law, from being objects of kidnapping by virtue of their civilian status. School girls from Dapchi in Nigeria, most of whom were later released, were kidnapped by Boko Haram from their secondary school. However, there has not been any indication from any of the parties as to the involvement of any of the girls in the armed conflict nor of the fact that they were taking DPH. Thus, the act is an outright breach of IHLs as it demonstrates the ignorance of such NSAGs towards their responsibility of sparing civilians from targeting.
In addition, act or threat of violence whose primary purpose is spreading terror amongst civilians is prohibited in NIACs. Acts that constitute such violence include assault, rape, abuse and torture of women and children among others. These acts are particularly reprehensible for they are frequent and inflict particularly cruel suffering upon the civilian population. The phrase ‘acts or threats of violence…’ under article 13(2) of AP II was intentionally left to be illustrative. There is no exhaustive list of acts amounting to acts or threats of violence providing a space for kidnapping to be included. Besides, the acts provided as an example under Henckaerts and Doswald-Beck’s Customary International Humanitarian Law share a peculiar feature with kidnapping, i.e. negative long-lasting effect on the lives of victims.
The suffering from kidnappings is particularly cruel as the young girls, even beyond the kidnapping, are subject to further harm while captives and face multiple difficulties when/if they return. In addition to forming part as one of the six grave violations committed against children, kidnapping is usually only the starting point to further violations of International Humanitarian Laws (IHLs). In 2014, Yezidi young women and girls as young as 12 were kidnapped by Islamic State (IS) fighters who sold, gave them as a gift or forced them to marry to IS fighter/supporters. Many of them were further subject to rape and other forms of sexual violence. These acts are very traumatizing to the extent that some have attempted to end their own lives. Moreover, survivors of rape and conflict time violence are subject to stigmatization, rejection, and abandonment, upon their return. Hence, kidnapping can form part of an act or threat of violence.
Moreover, women and children are specially protected in armed conflicts. Women benefit from special protection which entitles them protection in the various situations they may find themselves in. Children are also entitled to care and aid they require provision of education, reunification with their families, protection from participating in hostilities and being recruited to armed groups and be taken out of areas of hostility. Furthermore, both girls and women can benefit from the protection against rape and other forms of sexual violence. Kidnapping is contrary to these special protections. Often, it results in outrages upon personal dignity of girls and women manifested through physical and sexual violence, among others. It mostly results in the denial of education to girls who will be kept away from their families and are forced to ´grow´ much faster than they would in their normal environment. There are even times where they are forced to take part in hostilities in different capacities.
Kidnapping is a violation of IHLs. It takes away the multiple opportunities that girls and women can make use of in the real world, making them more susceptible to harm than they already are in an unequal world. Moreover, the subsequent dangers they face while being kidnapped threatens their fundamental and basic rights. In addition, the harmful effect of kidnapping is not only to the girls and their immediate families but also to the broader community and global peace and security in general. It is a threat to the advancement that has been witnessed on the rights of girls and women over the years and undermines the role that IHLs play in the protection of these civilians.
 Jacob Zenn and Elizabeth Pearson, ‘Women, Gender and the evolving tactics of Boko Haram’, (2014) 5(1), Journal of Terrorism Research, 46-57, p.47
 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977
 A.P.V. Rogers, ‘Law on the Battlefield’, (3rd edn, Manchester University Press, 2012), p.3
 Art. 49(1), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977
 Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987, para.1882 and para.4783
 Daragh Murray, ‘How International Humanitarian Law Treaties Bind Non-State Armed Groups’, (2015) 20(1), Journal of Conflict and Security Law, 101-131, p.101
 id [n.2] art.13(2)
 Jean-Marie Henckaerts and Louise Doswald-Beck, ‘Customary International Humanitarian Law’, (Cambridge University Press, 2009), 1 Rule 1
 id [n.2] art.13(2); id Rule 6
 The author believes that neither combatants nor members of NSAGs should be subject to kidnapping, as well. But protection for them can be better argued on the ground of limited means and methods of warfare than distinction.
 id [n.2] art.13(2); id [n.8] Rule 2
 id [n.8] Rule 2
 id [n.5] para.4785
 Hawkar Ibrahim, Verena Ertl, Claudia Catani, Azad Ali Ismail and Frank Neuner, ‘Trauma and perceived social rejection among Yazidi women and girls who survived enslavement and genocide’, (2018) 16(154), BMC Medicine, p.2
 id [n.8] Rule 134; Common Article 3(1)(c) provides for prohibition of outrage upon personal dignity, in particular humiliating and degrading treatment from which the protection of women can be inferred.
 id [n.2] art.4(3); id [n.8] Rule 135
 id [n.8] Rule 93
Helina Stiphanos Teka is a research associate at the University of Münster. She has a Master of Laws in International Humanitarian Law from the University of Essex and Bachelor of Laws from Addis Ababa University. She can be reached at firstname.lastname@example.org
Author Fekade Alemayhu Abebe
Since the attack on the Ethiopian National Defense Forces (ENDF) northern command base in the capital of Tigray regional state Mekelle, in the early hours of November 4, 2020 by forces loyal to the Tigrayan Peoples Liberation front (TPLF), the Northern region of Ethiopia had been a site of intense military confrontation. On November 23, 2020, the ICRC Ethiopia released a statement denying a claim by the Tigray forces that it has received 858 detainees of Ethiopian National defense force (ENDF) soldiers who were captured in the context of the conflict in Northern Ethiopia.The ICRC reiterated that it is willing to extend its services in returning those detained, should it be asked. This story raises some critical issues from the perspective of IHL like whether armed groups can detain in armed conflicts? If so, on what legal basis? Does IHL provide a sufficient legal base for detentions outside a criminal process (internment) in armed conflicts to be lawful? This short article tries to bring some of the scholarly debates surrounding these issues in the current conflict in Northern Ethiopia. The article will first start by making the case for the application of IHL by classifying the conflict.
- Is there an armed conflict for the purpose of IHL and if so, what is the applicable law?
Under IHL, a conflict can either be an international armed conflict(IAC) where it involves use of force by two or more high contracting parties to the conflict or it can be a non-international armed conflict(NIAC)when it involves an armed force of a State and dissident armed forces or other organized armed groups or armed conflict between such organized groups themselves. The conflict in Tigray region is between the ENDF, Amhara Special forces and militias on the one hand, and dissident armed forces of the Tigray regional special force loyal to the TPLF, on the other. These rules out the possibility of IAC at least for now. For a NIAC to exist the conflict must reach a certain level of intensity and the groups fighting the state armed forces must be well organized (seehere). Judging by the military engagements reported in the region for the past three weeks the number and caliber of weapons used by both parties, and the number of people fleeing the conflict; it is possible to infer that the conflict is in fact intense. The core of the TPLF forces, even before the conflict, were serving as a regional special force with a clear chain-of-command and territorial control. It is , therefore, possible to decipher they have sufficient level of organization. Hence, the conflict can be classified as NIAC. Since Ethiopia has ratified the Geneva Conventions and its protocols, the second protocol (APII) is also applicable in addition to common Article 3 of the Geneva convention (CA3) and Customary IHL to the current conflict.
- Does IHL provide a sufficient legal basis for detentions in NIAC?
Detention is a common occurrence in armed conflicts. Accepting this reality, IHL extensively allows for and regulates detentions in IACs under GCIII and GCIV. When it comes to NIACs, however, there is no such express authorization in both treaty and customary IHL. This has sparked scholarly debates whether IHL provides sufficient legal basis to detain in NIACs. From the perspective of State armed forces, this issue is controversial where the detention took place in a NIAC taking place outside the territory of the state concerned (i.e. extra-territorial NIACs).( See, for example, Mačak pp13-18; Aughey& Sari, for arguments supporting the view that IHL does provide for inherent authority to detain). However, when it comes to territorial NIACs, such legal basis could easily be found in domestic law. The ICRC supports this view, but such legal basis must be informed by the State’s human rights obligations and IHL (CA3 commentary, §763).
- Does IHL give Non-State Armed Groups (NSAGs) sufficient legal basis to detain?
The issue of whether IHL provides sufficient legal basis for detention by NSAGs is a topic of much controversy, even in the case of territorial NIAC. Notable Scholars, agreeing that such inherent authority exists in IHL, argue that it extends to detention by armed groups. (see Clapham pp.6-12; Murray pp. 446-449; Heffes pp. 238-247, and Niyo pp.16-19). Their main argument is based on the principle of equality of belligerents which can be inferred from the wording of CA3 and Art.4, 5, 6 of APII. These obligations include the obligation to treat those detained humanely and judicial guarantees before sentencing which both sides are expected to comply with. Besides the principle of equality of belligerents, proponents also argue that prohibiting detention by NSAGs will create an incentive to kill combatants and fighters rather than detain, going against the very purpose of IHL. If IHL does not recognize and regulate the detention by NSAGs, it would leave a protective gap which will result in abuse of rights of detained persons. (For a summary of these arguments, see Heffes , pp.238-247).
However, this view has been challenged by other group of scholars who argue that there is no explicit provision that provides such inherent authority to detain for both parties in NIAC. They reject the argument that the wording of CA3 and 4, 5 & 6 APII provides implicit authority saying that it does not suggest authorization rather it merely suggests that IHL does not prohibit it. (see for example Laurence Hill-Cawthorne, pp.70-75; Hill-Cawthorne& Akande; Rona, pp.35-37). Hence, they argue the legal basis for detention by NSAGs should be searched for elsewhere like in domestic law or human rights law. In addition to these, scholars in general, oppose the existence of such authority for NSAGs in fear that it would legitimize the latter either legally or politically (See Rona, pp.38-39). The ICRC, in both controversial situations of extra-territorial NIACs and detention authority by NSAGs, seems to agree with the first group of scholars at first sight stating that both treaty and customary IHL provide inherent power to detain which may constitute a legal basis to detain, with the caveat that such legal basis must be bolstered with additional authority regarding grounds and procedures of detention.(CA3 commentary, §765).
The author of this contribution agrees with the ICRC and the first group of scholars in that implicit legal basis for detention by the Tigrayan forces must be derived from IHL. The fact of the matter is IHL do foresee the detention by NSAGs. Recognizing this implicit authority will make it easier also to regulate the detention i.e. calling for humane treatment and judicial guarantees. This is so, as it is difficult to see NSAGs derive legal basis from domestic law of the state they are fighting with. Whether or not these forces are also bound by obligations coming from human rights law is a subject of further interest but that goes beyond the scope of this short piece.
Fekade Alemayhu Abebe is a PhD candidate at the Graduate Institute of International and Development Studies. The author can be reached at email@example.com
Author: Fikire Tinsae Birhane
On November 4, 2020, security forces loyal to the TPLF, mainly the regional special forces, made a surprise attack at the Northern Command of the Ethiopian National Defense Force (ENDF). Many people are reportedly killed.
Sometime around midnight of the same day, Prime Minister Abiy announced that he had ordered the military to confront the attackers. The TPLF have admitted that the strike at the Northern Command was carried out in “anticipatory self-defense“. Prime Minister Abiy condemned the attack declaring that “the last red line has been crossed” by the TPLF after months of alleged provocations.
As the military confrontations continue between the ENDF on the one hand and forces loyal to the TPLF on the other, there are a number of developments begging reflection from IHL’s perspective.
In this part of the post, based on current developments, I will try to show whether IHL is applicable to the confrontations.
Law Enforcement Operation or Conduct of Hostilities?
The Federal Government describes the ongoing situation as a “law enforcement action” against what it regards as an illegal TPFL junta (clique) responsible for grave human rights violations. The TPLF, however, describes it as a war (conduct of hostilities) aimed at subjugating Tigray. The material scope of IHL, i.e. situations in which it applies, is limited to conduct of hostilities. Thus, leaving aside the claims by each side, characterizing the situation on factual grounds is pivotal to determine whether IHL applies in this particular situation.
Ethiopia is a State party to the four Geneva Conventions of 1949 and their Additional Protocols of 1977. If the situation is to fall under the scope of IHL, according to these treaties, it should belong to one of the two classifications, international armed conflict (IAC) or non-international armed conflict (NIAC). This classification depends solely on the identity of the parties. Generally, confrontations between sovereign States against each other would be IAC while confrontations between governmental authorities and organized armed groups or between such groups within the territory of a State would be NIAC. As described in the introduction, the confrontation in northern Ethiopia is being conducted within the Ethiopian territory between the ENDF (representing the State and supported by special forces and militia from the Amhara region) and forces loyal to the TPLF, which administers the Tigray region of Ethiopia. This suggests that if the situation is one of a conduct of hostilities, its nature would be a NIAC.
The TPLF alleges that Eritrean forces are involved in the conflict on the side of ENDF. Many people assume that if this allegation is proven, it would internationalize the conflict. However, involvement of a foreign country on the side of the State, under invitation or consent from the later, would not affect classification of the conflict. This means that even if the allegation of involvement of Eritrean forces is true, the situation would still remain a NIAC.
To determine whether IHL of NIACs applies to the ongoing situation in Ethiopia there are two reference points in the law. These are Common Article 3 (CA3) of the Geneva Conventions and Article 1 of Additional Protocol 2 (APII). The latter, which sets more stringent requirements for its application, is meant to supplement the former. Hence, in situations where the conditions for its application are met, both will apply simultaneously. Hence, there would be no need to check the material applicability of IHL in reference to CA3. However, if the conditions for application of APII are not met, one should still go on to check whether IHL applies to the situation based on Common Article 3 (with the exclusion of APII), which provides for a lower threshold for its applicability.
Is APII Applicable to the Ongoing Confrontations?
Article 1 of APII determines the circumstances in which it applies. Starting with a negative definition that its application is limited to situations that are not covered by IHL of IACs as provided under Article 1 of API, it provides that APII applies to armed conflicts “…which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” As soon as the material conditions as defined in this Article are fulfilled, APII automatically applies. By dissecting the criteria laid down in this Article and analyzing the facts on the ground against each, one can determine whether APII (hence the whole body of IHL of NIACs) applies to the ongoing confrontations in Ethiopia. Accordingly, the situation can be determined to be conduct of hostilities rather than law enforcement operation.
- The place of confrontations
The definition provides that APII applies to armed conflicts “which take place in the territory of a High Contracting Party”. Ethiopia is a high contracting party to APII, and the confrontation is taking place within its territory.
- The parties confronting each other
One of the situations in which APII applies is a situation whereby armed forces of a State confront dissident armed forces. According to the ICRC commentary of the Article, this is a situation “where there is a rebellion by part of the government army or where the government’s armed forces fight against insurgents who are organized in armed groups”. In the ongoing confrontation in Ethiopia, the ENDF (State armed force of Ethiopia) is fighting the armed forces loyal to the TPLF (the dissident force fighting against the Federal government that represents the State).
- The responsible command
This criterion implies existence of some degree of organization of the dissident armed forces. According to the commentary on the provision, it means “an organization capable, on the one hand, of planning and carrying out sustained and concerted military operations, and on the other, of imposing discipline in the name of a de facto authority.” The ongoing situation reveals the fulfillment of this criterion as the dissident forces, which are composed of special forces of Tigray and fighters defecting from the northern command of the ENDF, are well organized. The TPLF, establishing command and control structure for the dissident forces, demonstrated a capacity to plan and carry out sustained and concerted military operations against the ENDF and to impose discipline in its name.
- Control over a part of the territory
The article provides that the dissident armed forces must be able to exercise “such control over a part of [the High Contracting Party’s] territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”. It goes without saying that TPLF, as the administrator of the Tigray region, has control over this part of the territory of Ethiopia.
- The sustained and concerted character of military operations
Fulfilment of this condition is what effectively determines control over a territory. According to the commentary, “sustained” is to mean that the operations are kept going or kept up continuously while “concerted” refers to military operations conceived and planned by organized armed groups. Since November 4 operations by both sides kept going as conceived and planned by each side.
- Ability to implement the Protocol
According to this criterion, being under responsible command and in control of a part of the territory concerned, the dissident group must be in a position to implement the Protocol. This relates to existence of a minimum infrastructure required to apply the rules entrenched under APII at the disposal of the group. As an administrator of one of the ten federating units of Ethiopia for about 30 years now, it would be reasonable to conclude that the TPLF has ability to implement APII.
As facts on the ground suggest that the ongoing confrontation between armed forces of the Federal government and the dissident forces of TPLF fulfill the conditions laid down under APII for its application. Accordingly, it can be concluded that the confrontations qualify as conduct of hostilities.
Fikire Tinsae Birhane
Lecturer of Laws and Human Rights, School of Law, Hawassa University.
Doctoral Student, Institute of International and Comparative Law in Africa, University of Pretoria.
Email address: firstname.lastname@example.orgemail@example.com
Author: Yoseph Genene
Have you ever wondered how YouTube videos are recommended for you or how the ads and suggestions relating to your previous activities on the internet like Facebook or any other social media platforms came from? Saving the data and privacy concerns for another time, the immediate answer we get for what’s behind all these is artificial intelligence algorithm. More than we care to admit, Artificial Intelligence (AI) is tremendously affecting our daily lives.
Humanity has always been fascinated about creating an artificial life. The concept of AI as some researchers argue dates back to ancient Greek mythologies. Hesiod`s Talos, the bronze man to be the warder of crete incorporate the idea of intelligent robot. Hesiod’s originally described Pandora as an artificial, evil woman built by Hephaestus and sent to Earth on the orders of Zeus to punish humans for discovering fire.
Oxford dictionaries define AI as a theory and development of computer systems able to perform tasks normally requiring human intelligence, such as visual perception, speech recognition, decision-making, and translation between languages. Humankind has a lot of experiences pulling in emerging technologies to military use; AI is no exception. IHL is not opposed to new technologies in warfare. Nonetheless, it requires that any new technology of warfare must be used, and must be capable of being used, in compliance with existing rules of IHL.
One of the fundamental principles of IHL which is the principle of distinction dictates that “the parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians”.
Combatants must also distinguish themselves (i.e., allow their enemies to identify them) from all other persons (civilians), who may not be attacked nor directly participate in the hostilities.
The introduction of AI in armed conflicts has perceptibly brought challenges in IHL, especially to the principle of distinction. Such technological fifth generation warfare methods cannot discriminate between combatants and non-combatants or other immune actors such as service workers, retirees, combatants that are wounded, have surrendered, or are mentally ill in a way that would satisfy the principle of distinction. For example, in Pakistan an attempt to kill 41 men resulted in the deaths of an estimated 1,147 people. Also, in Yemen 17 named men were targeted multiple times but the strikes on them killed 273 people; at least seven of them are children. Both attacks were conducted by US drones. From 2004- 2014 the number of US drone strikes in Pakistan reached 400. Research by the Bureau of Investigative Journalism finds that fewer than 4% of the people killed have been identified by available records as named members of Al- Qaeda.
What jeopardizes the principle of distinction is that we do not have an adequate definition of a civilian that we can translate into computer code. The Geneva conventions do not provide a definition that could give a machine with the necessary information. Additional Protocol I defines a civilian in the negative sense as someone who is not a combatant. AI lack components required to ensure compliance with the principle of distinction. First, they do not have adequate sensory or vision processing systems for separating combatants from civilians. Even if the machines had adequate sensing mechanisms to detect the difference between civilians and uniform-wearing military, they would still be missing battlefield awareness or common sense reasoning to assist in discrimination decisions, as like article 44(3) of the Additional Protocol I of the Geneva Conventions acknowledges, “there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself.”
SKYNET, uses machine learning algorithm on the cellular network metadata of individuals to try and rate each person`s likelihood of being a terrorist. As most big data businesses, 0.0008% false positive rate seems very low. But, unlike other businesses its failure is not about unwanted YouTube recommendations or displaying an ad to the wrong person; here it is between life and death of a human being. Therefore, if we take 0.0008% of let’s say 60 million population its 48,000 innocent civilians that will be targeted. Accordingly, AI algorithm will consider them as a as threat and certainly they will be a victims of an attack.
IHL states that solely the presence of military or civilians direct participation in hostilities (DPH) among the civilian population does not deprive the population a protection from an attack. This requires the need for military commanders to issue context-based decisions. In addition, identifying hors de combat and combatants or civilians DPH surrendering also require a contextual analysis, and the ability to interpret human intentions. AI inherently lacks both capabilities, which are of a paramount importance according to IHL.
The ideal solution for AI in warfare to comply with the principle of distinction would be full-fledged automatization of the battlefield in the foreseeable future. Thereupon, it will lead us to “bloodless fights” due to the exclusion of humans from the battlefield with combat predominantly conducted between AI guided machines.
When we come to the feasible measures to achieve the ultimate purpose of IHL which is to limit effects of armed conflict for humanitarian reasons, and particularly to exercise the principle of distinction in warfare we can suggest two recommendations. The first one will be arranging methods to team up human intelligence in interpreting machine languages inputs. Secondly, the international community should closely monitor conflicts that implement the use of AI in warfare so as to further prevent, halt and sanction actions of the perpetrators.
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 firstname.lastname@example.org or twitter @geneneyoseph.
Authors: Dr. Tilman Rodenhauser, Thematic Legal Advisor, ICRC HQ
Raji Gezahegn, Legal Advisor, ICRC Delegation in Ethiopia
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 email@example.com”
“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 firstname.lastname@example.org “