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