Algerian President Abdelaziz Bouteflika (C) stands between Eritrean President Isayas Afewerki (L) and Ethiopian Prime Minister Meles Zenawi (R) after signing peace agreements in Algiers December 12, 2000
1.The Ethio-Eritrean War – A brief background
The Ethio–Eritrean War (1998–2000) emerged from a longstanding border dispute that dramatically intensified following Eritrea’s declaration of independence from Ethiopia in 1993. The dispute over the Badme region, which had simmered for decades as a consequence of colonial and postcolonial contestations over borders, natural resources, and national identity, ultimately served as the ignition point for hostilities, exposing a profound legal quandary: What happens when a newly formed state has not yet acceded to central treaties of international humanitarian law? In particular, was Eritrea, an entity that did not formally ratify the Geneva Conventions until August 14, 2000, bound to safeguard Ethiopian prisoners of war under those same Conventions prior to accession?
After gaining independence in 1993, Eritrea and Ethiopia experienced escalating tensions over the disputed Badme region. These tensions culminated in armed clashes in May 1998, leading to a full-scale war that lasted until June 2000. The conflict resulted in extensive casualties, economic disruption, and severe humanitarian consequences for both nations. In an effort to resolve the dispute, both countries signed the Algiers Agreement in December 2000, establishing the Eritrea-Ethiopia Boundary Commission (EEBC) to deliver a final and binding border delimitation. In April 2002, the EEBC awarded the disputed town of Badme to Eritrea. However, Ethiopia expressed deep dissatisfaction with this ruling and refused to implement the decision, maintaining control over Badme. This refusal led to a prolonged stalemate between the two nations.
2.The place of International Humanitarian Law
Ethiopia, having signed and ratified the Geneva Conventions by 1949 and 1969 respectively, was unambiguously bound by these multilateral treaties, which provide a comprehensive legal framework regulating the conduct of hostilities and the treatment of persons who are not, or are no longer, participating in hostilities. In contrast, when Eritrea declared its independence in 1993, it did not automatically inherit these treaty obligations from Ethiopia. International law recognizes that newly independent states customarily signal their intent to adopt pre‑existing treaty commitments through formal declarations or legislative enactments. While many successor states continue to honor international treaties, this is not automatic. In the case of Eritrea, there is a notable absence of clear legislative or formal declarations indicating that it intended to adopt the Geneva Conventions immediately upon independence. The Eritrea–Ethiopia Claims Commission explicitly observed a “dearth of substantiating evidence” that Eritrea had undertaken the customary process necessary to inherit these obligations. As the Commission observed:
“However, the Commission has not been shown evidence that would permit it to find that such circumstances here, desirable though such succession would be as a general matter.”
In this context, “such circumstances” refer to the lack of unequivocal statements from Eritrean authorities and the absence of consistent state practice that would indicate a clear intention to be bound by the Geneva Conventions. This absence of demonstrable consent renders any presumption of automatic succession legally unsustainable.
To fully understand Eritrea’s obligations during the conflict period, it is essential to examine the broader principle of continuity in humanitarian obligations under international law, particularly in the context of state succession, where shifts in sovereignty or government structures raise complex questions about treaty obligations. According to this principle, certain international obligations, especially those related to fundamental human rights and humanitarian norms, persist despite changes in state sovereignty. This continuity ensures that newly independent or successor states remain accountable for essential commitments that uphold human dignity and the rule of law within the international community.
While the Vienna Convention on Succession of States in Respect of Treaties adopts a permissive approach under Article 16, often referred to as the “clean slate” doctrine, this framework is increasingly challenged when it comes to humanitarian obligations. The “clean slate” doctrine allows newly independent states to decide which treaties they will adopt, potentially enabling them to reject critical human rights obligations inherited from their predecessors. However, this permissive approach conflicts with the evolving understanding in international law that certain humanitarian obligations, particularly those embedded in customary international law, remain binding regardless of succession.
In his article, “The Problem of State Succession and the Identity of States under International Law”Matthew Craven argues that the continuity of obligations cannot be assessed solely through the lens of consent-based treaty succession. Instead, it must be viewed through the prism of an emerging constitutionalization of international law, where certain values—notably the prohibition of torture and genocide—function as normative anchors that transcend state will. Craven’s argument highlights that humanitarian norms are increasingly perceived as structural principles essential to the integrity of the international legal order, rather than optional commitments dependent on state consent.
“The principles underlying the prohibition of the use of force, the non-intervention principle, and the minimum standards of humanity form part of customary international law and constitute obligations erga omnes.”
The reference to “minimum standards of humanity” is particularly significant because it directly relates to the continuity of humanitarian obligations. These standards represent fundamental norms that persist irrespective of a state’s treaty commitments or changes in sovereignty. The erga omnes nature of such obligations means that they bind all states at all times, not because of treaty commitments, but because they are integral to the collective interests of the international community. Obligations erga omnes are distinct in that they protect global values, such as the prohibition of torture and inhumane treatment, which are considered essential for maintaining international order.
An Eritrean soldier at his post in Serha, Eritrea Photo Credit: Associated Press
In the context of state succession, this implies that successor states cannot evade responsibilities concerning core humanitarian principles by simply rejecting predecessor treaties. Instead, these obligations remain continuous and binding, regardless of political transformations. This continuity is grounded in the universal values that these humanitarian norms protect—values that safeguard the integrity of the international legal order and ensure that fundamental human rights are upheld even in the face of sovereign transitions.
From the moment of independence, Eritrean leadership made it clear through official pronouncements and consistent state behavior that it would not be bound by the Geneva Conventions until a later accession occurred. In particular, Eritrea’s persistent denial of unrestricted access to the International Committee of the Red for the purpose of visiting Ethiopian prisoners of war serves as a concrete manifestation of its non‑acceptance of the treaty regime. While the ICRC was allowed limited access—to a small group of civilian detainees according to stringent procedures—broader access for inspecting POWs was consistently obstructed. These obstructions reflect both a deliberate policy of noncompliance with the treaty’s procedural requirements and a rejection of the substantive humanitarian obligations that the treaty is designed to enforce.
In its Partial Award on Prisoners of War, the EECC concluded that Eritrea’s systematic refusal to grant ICRC access to POWs from May 1998 until August 2000 violated customary international humanitarian law (IHL), despite its non-accession to the Geneva Conventions at the time (para.62). The Commission’s findings, based on extensive fact-finding—including POW testimonies, Eritrean military directives, and diplomatic exchanges—revealed a deliberate and prolonged obstruction of humanitarian oversight (para. 55). Eritrea argued that the obligation to allow ICRC visits was a procedural rule tied solely to treaty law rather than a binding customary obligation (para. 56–58). However, the Commission firmly rejected this claim, affirming that external humanitarian access is an essential safeguard under customary international law and a fundamental protection against inhumane treatment (para. 59–61). It ruled that Eritrea violated its obligations under customary IHL from May 1998 to August 2000, as the denial of ICRC access deprived POWs of independent registration, monitoring, and relief (para. 62).
A central issue raised by these circumstances is whether, in the absence of formal accession, a state such as Eritrea may still be held accountable under customary international law. Customary IHL is a body of legal norms that derives its binding nature from consistent state practice accompanied by the recognition that such practices are obligatory (opinio juris). In the Ethio‑Eritrean conflict, even though Eritrea had not formally acceded to the Geneva Conventions, the core principles—such as the requirement to treat prisoners of war humanely—had already crystallized into customary international law.
The International Criminal Tribunal for the Former Yugoslavia further substantiated the binding nature of POW protections in Prosecutor v. Tadić, where the Appeals Chamber held that “certain fundamental humanitarian obligations are to be observed by all parties to an armed conflict, regardless of whether they have ratified the conventions that contain them.” The ICTY’s ruling in Furundžija similarly affirmed that the prohibition of torture and inhumane treatment is a peremptory norm (jus cogens) from which no derogation is permitted, binding states irrespective of treaty obligations.
In Al-Skeini and Others v. the United Kingdom, the European Court of Human Rights addressed the extraterritorial application of the European Convention on Human Rights. The Court held that the United Kingdom exercised authority and control over individuals in Basrah, Iraq, during security operations, thereby establishing a jurisdictional link under Article 1 of the Convention. Specifically, in paragraph 149, the Court stated:
“In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention.”
From this decision, it can be established that control over individuals, particularly in conflict situations, constitutes a sufficient basis for activating fundamental humanitarian obligations, as the exercise of such control creates a legal relationship that imposes responsibilities recognized under customary international humanitarian law. In the case of Eritrea, its authority over Ethiopian prisoners of war during hostilities necessarily triggered obligations not contingent upon formal treaty commitments, specifically the duty to ensure humane treatment and to facilitate humanitarian oversight, thereby guaranteeing that essential humanitarian standards are maintained through the very nature of jurisdictional control.
The African Commission on Human and Peoples’ Rights (ACHPR) has ruled that incommunicado detention constitutes a severe human rights violation, facilitating further abuses such as torture and ill-treatment. In Communication No. 250/2002, the Commission stated that “the lack of external oversight in detention facilities constitutes an inherent violation of human dignity and is incompatible with international human rights and humanitarian standards.
Additionally, the ICRC’s Customary IHL Study, which codifies state practice, identifies Rule 124, stating that “the ICRC must be granted regular access to all persons deprived of their liberty in order to verify the conditions of their detention and to restore contacts between those persons and their families.” This obligation, the study finds, is “established as a rule of customary international law applicable in both international and non-international armed conflicts.”
Eritrea’s conduct during the war provides concrete evidence for this analysis. The repeated denial of full ICRC access to POWs is not merely a technical or administrative shortcoming; it signifies a broader repudiation of the international standards of humane treatment that the Geneva Conventions are designed to enforce. Such conduct, when viewed through the lens of customary IHL, clearly demonstrates that Eritrea’s actions violated universally binding humanitarian norms, even if formal treaty obligations were not in place at the time.
Permanent Court of Arbitration Eritrea-Ethiopia Claims Commission – The Hague, Netherlands, 2000
A contentious yet crucial aspect of the Eritrea–Ethiopia Claims Commission’s analysis is the role of military training in establishing state obligations under international humanitarian law. In paragraph 67 of the EECC’s Partial Award on Prisoners of War, the Commission noted that Eritrean troops and officers received “extensive instruction on both the fundamental requirements of the Geneva Conventions on the taking of POWs and on the policies and practices of the Eritrean People’s Liberation Front in its struggle against the previous Ethiopian government, the Derg.”
This acknowledgment raises an important question: can comprehensive military training in IHL indicate an implicit commitment to the humanitarian principles enshrined in the Geneva Conventions? On one hand, such training demonstrates Eritrea’s awareness of the conventions’ core principles, suggesting a de facto endorsement of international humanitarian norms. The investment in educating military personnel about these obligations could be interpreted as evidence of the state’s intention to adhere to those standards, even in the absence of formal accession.
However, while the extensive IHL training conducted by Eritrea certainly indicates an operational recognition of international norms, it falls short of constituting formal legal acceptance. Under international law, explicit consent is required for a state to be legally bound by treaty regimes. This consent typically manifests through legislative enactments, executive declarations, or formal treaty accession. Without such explicit actions, a state’s informal practice even those involving comprehensive training cannot substitute for formal acceptance. The EECC emphasized that despite Eritrea’s military training programs aligning with the Geneva Conventions, these efforts alone did not establish a legally binding obligation to comply with the conventions. Customary international law requires consistent state practice accompanied by opinio juris—the belief that such practice is legally required. In Eritrea’s case, while training demonstrated knowledge and operational alignment with humanitarian norms, it did not reflect the necessary belief or intent that these practices were legally binding obligations under international law.
Moreover, the distinction between operational practice and formal legal commitment is essential. Extensive IHL training can contribute to state practice, but without accompanying formal declarations, such practices remain aspirational rather than obligatory. This distinction underscores the principle that state conduct, no matter how aligned with international standards, must be accompanied by explicit consent mechanisms for treaty obligations to be legally enforceable. Consequently, Eritrea’s military training programs, although commendable in reflecting a certain humanitarian ethos, cannot by themselves transform informal practice into binding treaty obligations under the Geneva Conventions.
Eritrea’s subsequent accession on August 14, 2000, in conjunction with its extensive investment in IHL training, might indicate that its leadership tacitly endorsed humanitarian norms even during the conflict period. This is especially true in line with the description in paragraph 67 of the EECC Award and argues that such behavior reflects a de facto commitment that should mitigate the strict legal consequences of non‑accession. However, international law is clear that retrospective behavior, however positive, cannot be used to retroactively impose obligations for a period during which the state did not provide explicit consent. While Eritrea’s later actions may be interpreted as an attempt to align with international norms, they do not alter the legal reality of the conflict period.
2.1 The Binding Force of Customary International Humanitarian Law in State Succession
The broader implications of the Ethio‑Eritrean conflict for IHL are significant. This case exemplifies the dual system by which international law operates: formal treaty obligations among consenting states on one hand and universally binding customary norms on the other. Such a framework is essential in an era when not all states are willing or able to join multilateral treaties in full. The evolution of humanitarian norms from treaty provisions into customary law ensures that fundamental principles—such as the prohibition of inhumane treatment, the right of detainees to protection, and the oversight rights of humanitarian organizations—retain their binding force even in contexts where formal treaties are absent.
This case study also prompts to reevaluate the efficacy of international legal regimes in contemporary conflict scenarios. Non‑signatory states may attempt to evade the obligations of treaties by expressly rejecting formal accession, but the universal applicability of customary IHL provides a critical safety net. Even where political considerations lead a state to distance itself from formal treaty mechanisms, the underlying humanitarian imperatives remain enforceable through consistent state practice and the establishment of legal norms recognized by the international community. Consequently, the Ethio‑Eritrean War and the subsequent EECC decision underscore that the protection of human rights and human dignity in armed conflict cannot be nullified by a state’s non‑acceding status.
Moreover, these legal debates have significant policy implications. International bodies and NGOs have increasingly relied on the dual framework of treaty and customary law to hold states accountable for violations of humanitarian norms. In practice, the continued evolution of customary IHL is evident in the growing number of international tribunals and fact-finding missions that invoke these principles to secure redress for victims. As conflicts evolve and new actors—both state and non-state—emerge on the global stage, the interplay between formal treaty obligations and customary norms will continue to shape international responses to humanitarian crises.
2.2.Legal Consequences and Enforcement Mechanisms for Non-Compliance
From an enforcement standpoint, refusing to accede to key IHL treaties neither negates a state’s responsibility nor immunizes its officials from liability for grave breaches. Indeed, the ill-treatment of prisoners of war—recognized as a “grave breach” under the Geneva Conventions (e.g., Geneva Convention III, Arts. 129–130)—is subject to universal jurisdiction, obliging all states to prosecute or extradite alleged perpetrators. Complementing these domestic efforts, the Statute of the International Criminal Court (Arts. 5, 8, and 12–13) empowers the Court to investigate war crimes, crimes against humanity, and genocide, even absent direct state consent if the United Nations Security Council refers the situation under Chapter VII of the UN Charter. This mechanism was illustrated by Resolutions 827 (1993) and 955 (1994), establishing the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), respectively—both of which held perpetrators criminally liable for egregious IHL violations, irrespective of treaty status. Regionally, the African Commission on Human and Peoples’ Rights, operating under the African Charter (Arts. 45–47), can open inquiries, adopt provisional measures, and coordinate with international mechanisms to address severe human rights abuses, thereby reinforcing that customary norms—particularly those reflecting jus cogens prohibitions like torture—must be observed by all states at all times.
What these complementary systems reveal is that the international legal order refuses to allow non-accession to function as a legal vacuum for atrocities. The duty to “respect and ensure respect” for IHL, enshrined in common Article 1 of the Geneva Conventions, imposes a collective obligation on all states to prevent and halt serious breaches. Thus, the rejection of formal treaty obligations offers no safe haven from IHL’s core prohibitions. In practice, however, these enforcement mechanisms neither operate in isolation nor function automatically. States exercising universal jurisdiction often face political or logistical hurdles in prosecuting foreign nationals for extraterritorial crimes, while the ICC relies on voluntary cooperation for arrests and surrenders.
Nonetheless, such barriers enhances the vital role of multilateral engagement and diplomatic pressure in promoting compliance. For instance, the African Commission’s investigative procedures—strengthened by non-governmental organizations and civil society—facilitate evidence gathering, foster dialogue on adherence, and channel critical information to international bodies. Over time, this interplay between domestic courts, regional institutions, and international tribunals dismantles the premise that non-accession to certain treaties can confer immunity. Instead, it highlights how robust legal frameworks enable the international community to impose meaningful consequences on states or individuals who commit grave breaches.
This article demonstrates that while explicit treaty commitments remain crucial for establishing detailed obligations among states, the fundamental humanitarian norms at the heart of International Humanitarian Law have attained a status that renders them binding on all nations—signatory or not.
Author – Wakjira Tesfaye Beriso
Wakjira Tesfaye Beriso is a former lecturer in law at the University of Gondar. He holds an LL.M. in International Humanitarian Law and Human Rights from the Geneva Academy and an LL.M. in Human Rights Law from the University of Gondar. Wakjira has extensive experience in human rights law, humanitarian law, and international advocacy.
The Addis Ababa University International Humanitarian Law Clinic (AAU IHL Clinic) is excited to announce the launch of the Directory of African Human Rights and Humanitarian Professionals.
At the AAU IHL Clinic, one of our key goals is to serve as a hub for humanitarians, human rights personnel, and others working in or on conflict-affected settings in Africa. This initiative aims to compile a comprehensive database of dedicated individuals working in the fields of human rights, humanitarian assistance, and International Humanitarian Law (IHL) across Africa.
Who Should Register?
We invite African academicians, human rights defenders, humanitarian workers, and other experts engaged in protecting civilians’ rights and promoting human rights, humanitarian law and peace in conflict-affected settings to join this directory. Whether you’re actively working on the ground, conducting research, teaching or advocating for policy changes, your expertise and experiences are invaluable.
Why Register?
Connect with Peers: Join a growing network of African professionals committed to the protection of civilians in conflict-affected settings.
Share Your Work: Showcase your contributions, projects, and achievements to a wider audience.
Collaborate and Grow: Discover opportunities for collaboration, networking, and professional growth.
How to Register:
To be included in the directory, please complete this registration form with your professional details. Your information will help build a comprehensive resource that supports knowledge-sharing and networking among professionals in the field.
We take privacy and confidentiality seriously. Please note that in the form, you can specify what information you wish to make public or keep confidential.
Thank You for Your Support!
We appreciate your participation in this important initiative and look forward to building a vibrant community of professionals working towards a continent safe for its people.
For inquiries, please contact us at ihlclinicaau@gmail.com.
Deadline For Submissions: Before or by 10th July 2024
From 2019 to 2023, Africa has continued to witness a significant rise in active armed conflicts and conflict events. This trend has been particularly pronounced in the Democratic Republic of the Congo (DRC), Ethiopia, Sudan, Nigeria, and the Sahel region (especially Burkina Faso, Niger and Mali), leading to increased spillover effects and heightened humanitarian concerns.[1] Presently, Africa is grappling with an alarming surge in forced displacement, with an estimated 40.4 million individuals, as of June 30 2023, including internally displaced persons, refugees, and asylum seekers.[2] The majority of forcibly displaced individuals originate from countries grappling with conflict, with 14 out of the top 15 nations generating such displacement are facing ongoing conflict[3].
Forced displacement in Africa remains a pressing issue, with millions of individuals displaced from their homes due to armed conflicts across the continent. This complex phenomenon not only underscores the devastating consequences of armed conflict but also highlights the intricate interplay between forced displacement and the perpetuation of conflict dynamics. While armed conflict often serves as a primary catalyst for displacement, it is equally important to recognize displacement as a trigger that can exacerbate existing conflicts and contribute to the emergence of new ones.
The nexus of armed conflicts and forced displacement in Africa was further complicated by the impacts of the COVID-19 pandemic, which has exacerbated factors that drive conflicts and instability. In addition, climate change, recognized as a ‘threat multiplier,’ intensifies competition over scarce resources, contributing to escalating or prolonging conflicts. High rates of youth unemployment are associated with a greater risk of political violence and may drive young people toward violent extremism, subsequently leading to or worsening armed conflicts. Addressing these interconnected challenges is crucial for devising effective strategies to address both forced displacement and armed conflict in Africa.
In connection with this, the Addis Ababa University International Humanitarian Law Clinic aims to understand the issue of forced displacement, and thereby inform policy decisions. Engaging with scholars from various disciplines, the clinic also aims to develop strategies to address challenges of forced displacement and armed conflicts in Africa, potentially creating a platform for collaborative efforts to address challenges faced by African nations in dealing with forced displacement in connection with armed conflicts.
In this vein, the Addis Ababa University International Humanitarian Law Clinic invites submissions for blogpost articles that study the multifaceted relationship between forced displacement and armed conflict in Africa. Authors are encouraged to explore various dimensions of this nexus, considering both the consequences of displacement resulting from armed conflict and the ways in which displacement can fuel or prolong conflicts. Potential areas for exploration include:
Overview of the relationship between armed conflict and forced displacement, highlighting the interconnectedness of these phenomena and their impact on individuals and communities.
Causes of Forced Displacement in Armed Conflict, including violence and insecurity, destruction of infrastructure and livelihoods, human rights violations, and ethnic and religious persecution.Impact of Forced Displacement on Individuals and Communities, examining psychological trauma, loss of social support networks, economic challenges, disruption of education and healthcare access, and the strain on resources of host communities.
Exploration of root causes of migration within conflict contexts, and strategies for addressing underlying drivers of displacement.
Legal frameworks and mobility amidst conflict situations, examining challenges and opportunities for displaced populations.
International Legal Framework for Protecting Displaced Persons in Armed Conflict, encompassing refugee law, international humanitarian law, responsibilities of states and international organizations, and challenges in implementation and enforcement.
Protection mechanisms for individuals fleeing conflict zones, and the efficacy of international legal frameworks in ensuring their rights and safety.
Humanitarian Response to Forced Displacement in Armed Conflict, focusing on the role of humanitarian organizations and agencies, provision of shelter, food, and medical assistance, and protection of vulnerable groups.
Long-Term Solutions to Address Armed Conflict and Forced Displacement, including conflict prevention and resolution strategies, peacebuilding efforts, and sustainable development initiatives in conflict-affected areas:
Strategies to combat irregular migration, migrant smuggling, and trafficking in human beings in conflict-affected regions.
The intersection of climate-induced displacement and armed conflict, and efforts towards climate adaptation and resilience among displaced communities.
Health challenges faced by migrants and refugees in conflict settings, and the need for targeted healthcare interventions.
Sustainable reintegration initiatives for returning migrants and refugees, and the role of readmission and reintegration in post-conflict reconstruction.
Protection of victims of trafficking amidst conflict dynamics, and strategies for preventing exploitation and abuse.
Promotion of free movement and mobility within Africa as a means of enhancing regional cooperation and stability, particularly in conflict-prone areas.
The gender dimension of forced displacement, such as increased risk of gender-based violence, loss of economic opportunities, and disruption of social support networks for women, challenges faced by displaced women including accessing healthcare, particularly reproductive health services and support for survivors of sexual violence.
Case Studies: Examining Specific Examples of Armed Conflict and Forced Displacement, providing in-depth analyses of particular conflicts and their impact on displacement dynamics in Africa.
Other Multidisciplinary topics such as climate change and youth engagement, especially in their relation to the dynamics of forced displacement and armed conflict in Africa.
We look forward to engaging with diverse perspectives and innovative insights on this critical issue facing Africa today.
Submitting Your Blogposts
We welcome original contributions from academics, students and practitioners from a variety of disciplines across Africa. Please submit your blogposts with the length of 1,500 to 2,000 words (except where agreed with the editors) to the following email: ihlclinicaau@gmail.com
During the selection process, priority will be given to innovative blogposts that demonstrate clear potential to contribute to and advance the legal and policy debates in the field of forced displacement and armed conflict in Africa.
Author: Lea Mehari Redae with Contributions from Fekade A. Abebe
The epicenter of the current conflict in the Democratic Republic of Congo lies in the Eastern provinces of the country, particularly in North Kivu, South Kivu, Ituri, and Tanganyika (highlighted in Red on the map above)
Background of the Conflict
The Democratic Republic of Congo (DRC) is a country with one of the most complex and protracted conflicts in modern African history, spanning over two decades. The roots of the current crisis can be traced back to the early 1990s, a period marked by political instability and escalating ethnic tensions, and characterized by a web of armed groups, political instability, resource-driven disputes, and foreign interventions.
Compounding the problem is the DRC’s immense mineral wealth. The country is rich in resources such as coltan (used in electronic devices), gold, and diamonds. Rather than being a source of prosperity, however, these resources have become a curse. They have fueled competition and conflict among various factions, both domestic and foreign, who are eager to control these valuable assets.
The conflict in the DRC is a multifaceted problem with deep historical roots. It is a crisis that has been shaped by political instability, ethnic tensions, regional dynamics, and resource competition. Understanding the historical, geopolitical and economical contexts of the conflict in the DRC is crucial for developing effective policy recommendations and interventions to bring about the respect of International humanitarian law and protection of civilians in the country.
The roots of the current DRC's conflict can be traced back to the early 1990s when political instability and ethnic tensions laid the foundation for a protracted crisis. The 1994 Rwandan genocide triggered a massive influx of refugees and armed groups into the eastern DRC, creating a volatile environment. The DRC's immense mineral wealth, including coltan, gold, and diamonds, became a source of competition and conflict.
However, the causes of the conflict run much deeper, dating back to DRC’s colonial history. Understanding the historical context of the conflict in the DRC is essential for grasping the complexities and protracted nature of this crisis. Over the last two decades, the DRC has been plagued by political turmoil, ethnic tensions, stemming mainly from the legacy of colonialism, all of which have contributed to the ongoing conflict.
The roots of the DRC's contemporary conflict are deeply embedded in its colonial history, when it was known as the Belgian Congo. The Congo was first colonized and taken as the personal property of the Belgian King Leopold II from 1885 to 1908 and was named Congo Free State during the Berlin West Africa Conference of 1884-1885. During his rule, Congolese people were forced into labor, often on rubber plantations, and suffered abuse, torture, and murder. It is estimated that the death toll caused by colonization ranged from one to ten million.
From 1908 to 1960, after massive international pressure, the Congo Free State was sold to and colonized by the Belgian state as its second colonizer. The international pressure was due to the atrocities committed by the Congo Free State officials and international mercenaries against indigenous Congolese people, and a ruthless system of economic exploitation. This led to intense diplomatic pressure on Belgium to take official control of the country, which the Belgian Parliament did by creating the Belgian Congo in 1908. This second colony of the country exported copper, tropical wood, cotton, cocoa, and coffee to Europe. The DRC gained independence from Belgium on 30 June 1960 under the leadership of Patrice Lumumba, however, the effects of colonization continue to influence the socio-economic and political landscape of the DRC today.
From 1960-1966, Belgian Congo was known as Congo-Léopoldville (former name of Kinshasa – the capital city) distinguishing it the Republic of the Congo, which was known as Congo-Brazzaville.
Patrice Lumumba, a charismatic leader and a staunch advocate of African nationalism and Pan-Africanism, was the first democratically elected Prime Minister of Congo-Léopoldville, with his party - Mouvement National Congolais (MNC) - winning 41 of the 137 of Congo-Léopoldville’s parliament during the 22 May 1960 general elections. Compromising with Joseph Kasavubu, the leader of the Alliance des Ba-Kongo (also known as ABAKO), as neither had the majority vote, Lumumba became the Prime Minister with Kasavubu as President of country. However, political instability and external interference marred the early years of independence.
The secession of Katanga, a mineral rich region in the south of the country, under Moise Tshombe in July 1960 and South Kasai – a region where diamond mines are located - under Albert Kalonji who proclaimed the establishment of the Autonomous State of South Kasai in August 1960, both supported by various foreign interests, became significant events that further destabilized the country.
Lumumba was assassinated in 18 January 1961, a little after two months in office, further exacerbating the country’s instability. Early September 1961, President Kasavubu dismissed Lumumba, later placing him under house arrest where Lumumba escaped. Thereafter, Lumumba was captured by the state authorities led by Joseph-Désiré Mobutu, sent to the State of Katanga, and executed by the separatist Katangan authorities.
Joseph Mobutu, also known as Mobutu Sese Seko, was the Secretary of State for National Defense after the independence of Congo. He came to power in a coup against President Kasavubu in 1965, and ruled the country, for more than three decades. On October 1971 (until 1997), he changed the name of the country from the Democratic Republic of Congo (Congo-Kinshasa) to the Republic of Zaire.
Mobutu’s regime was marked by authoritarianism, corruption, and the pillaging of the DRC’s resources. Corruption was rampant during Mobutu’s reign. He amassed a large personal fortune through economic exploitation and corruption, leading some to call his rule the strongest example of "kleptocracy". It is estimated that he embezzled between US$4 billion and $15 billion during his rule. Despite the authoritarian nature of his regime, it was said that Mobutu managed to maintain a degree of stability in the country. However, this stability was , as ethnic tensions simmered beneath the surface. These tensions, along with the legacy of corruption and resource pillaging, laid the groundwork for future conflict.
The First Congo War, which took place from 1996 to 1997, marked a significant turning point in the history of the Democratic Republic of Congo (DRC). The war began as a rebellion against the regime of Joseph Mobutu, whose government ordered the expulsion of ethnic Tutsis (known as the Banyamulenge) from Zaire against the threat of penalty of death in 1996. Laurent-Désiré Kabila led the forces against Mobutu’s regime. Kabila’s group, the Alliance of Democratic Forces for the Liberation of Congo (AFDL), was formed with the backing of neighboring countries, including Rwanda and Uganda as well as Burundi and Angola.
The war commenced when the AFDL and Tutsi Militia engaged Zairean soldiers. By the end of the year, most border regions were captured. On May 16 1997, the AFDL captured Kinshasa, the capital of Zaire, ousting Mobutu. Kabila assumed power. Then renamed Zaire to the Democratic Republic of the Congo (DRC). This war led to the death and displacement of around 200,000 and 250,000 people respectively. This conflict set the stage for future violence and foreign involvement in the DRC. Kabila’s unstable government subsequently came into conflict with his allies, setting the stage for the Second Congo War.
The Second Congo War, also known as ‘Africa’s World War’ or Africa’s Great War, considering the number of African countries involved began in the DRC in August 1998, little more than a year after the First Congo War. The war started when Rwanda invaded the DRC in response to Laurent-Désiré Kabila, by then president of the DRC, severing ties with Rwanda and Uganda, as well as allowing the Hutu Militia to reform in DRC. This war involved Eight African countries and around twenty-five armed groups, and was named as the deadliest conflict worldwide since World War II. The DRC was supported by Angola, Namibia, Zimbabwe, Chad, fighting against Rwanda supported by Uganda and Burundi as well as armed groups supported by them. The UN was also involved through the United Nations Observer Mission in the Democratic Republic of Congo (MONUC). The casualties of this war are estimated any where between 1 and 5 million people, with millions more displaced.
On January 16, 2001 Laurent-Désiré Kabila was assassinated by his body guard, and was succeeded by his son Major General Joseph Kabila sworn in on January 24, 2001. The war officially ended in July 2003 when the Transitional Government of the Democratic Republic of the Congo took power. Although a peace agreement was signed in 2002 between the DRC government, and the various non-state armed groups, violence has continued in many regions of the country, especially in the east.
The First and Second Congo Wars laid the groundwork for the complex web of conflicts that would continue to plague the DRC. Since the official end of the Second Congo War in 2003, the Democratic Republic of Congo (DRC) has continued to experience a series of armed conflicts. These conflicts have involved various militant groups fighting over territory and natural resources. The violence has resulted in high rates of civilian casualties and displacement. Particularly since 2020, the DRC experienced a spike in violence, with clashes involving militant groups, extrajudicial killings by security forces, political violence, and rising tensions with neighboring countries. The conflict dynamics in the DRC are complex and rapidly changing, and the humanitarian crises dire.
Armed Conflict in the Democratic Republic of Congo
For any armed conflict, distinguishing between international armed conflicts (IAC) and non-international armed conflicts (NIAC) is of paramount importance. It determines the applicability of the different legal regimes, particularly under International Humanitarian Law (IHL) and relevant safeguards, ensuring that combatants/fighters and civilians receive appropriate protection and treatment in times of war. An accurate classification is fundamental to upholding the principles of IHL and mitigating the human suffering caused by armed conflicts.
Armed conflicts usually fought between states – where at the very least, persons that are attributable to one state commit an act of violence, approved by the highest authorities of the state, against another state, or where there is a declaration of war would amount to an international armed conflict (IAC).[1] These types of armed conflicts are mainly governed by the four Geneva Conventions of 1949 and Protocol I Additional to the Geneva Conventions of 1997, although other laws also apply. Armed conflicts that are not of an international character, as per Article 3 Common to the Geneva Conventions of 1949, that fulfil the cumulative requirements of intensity and a certain level of organization of the parties to the conflict are referred to as non-international armed conflicts.[2]
The following section will analyze the intensity of violence and organization of the parties to the conflict in DRC based on the non-exhaustive indicative factors provided by the International Criminal Tribunal for the Former Yugoslavia (ICTY)[3] to determine whether they qualify as NIACs.
[1] Marco Sassoli, International Humanitarian Law Rules, Controversies, and Solutions to Problems Arising in Warfare, Edward Elgar Publishing, 2019, p. 169
[3] International Criminal Tribunal for the Former Yugoslavia (ICTY), The Prosecutor v. Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj (Haradinaj et al.), Trial Chamber Judgement, 3 April 2008, Case No. IT-04-84-T para. 49 “Trial Chambers have relied on indicative factors relevant for assessing the “intensity” criterion, none of which are, in themselves, essential to establish that the criterion is satisfied. These indicative factors include the number, duration and intensity of individual confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones. The involvement of the UN Security Council may also be a reflection of the intensity of a conflict.” and para 60 “Trial Chambers have relied on several indicative factors, none of which are, in themselves, essential to establish whether the “organization” criterion is fulfilled. Such indicative factors include the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of a headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords.”
Intensity of Violence
Multiple armed conflicts are ongoing in the DRC, including conflicts involving the Congolese armed forces [in French: Forces armées de la République démocratique du Congo] (FARDC) against various non-state armed groups and, numerous non-state armed groups amongst each other, foreign interventions, and peacekeeping efforts. The provinces most affected by these conflicts include North and South Kivu, Kasai, and Ituri, although violence is widespread across the entire country.
The intensity of violence in the DRC has reached a significant level. Some of the contributing Factors for the intensity include the number and duration of individual confrontations, the types of weapons and military equipment used, the number of combatants involved, the number of casualties, material destruction, and civilian displacement, as outlined by the ICTY. The involvement of the United Nations Security Council further attests to the level of intensity of violence in the country.
The DRC has experienced prolonged and intense violence in the numerous conflicts taking place in the country. The intensity of this violence can be better understood by examining various factors contributing to the severity of the situation.
The DRC has had a series of conflicts that involve a multitude of non-state armed groups. These groups engage in frequent confrontations with the Congolese armed forces (FARDC), and the non-state armed groups amongst themselves. In 2022 alone, there have been over 1,300 individual confrontations in Eastern DRC and the Mai-Ndombe province. Clashes are often protracted, with recurring skirmishes and battles lasting for extended periods. This continuous cycle of violence has prevented any significant respite for the affected regions and their populations.
The conflicts in the DRC are characterized by the use of a wide array of weapons and military equipment, including but not limited to, assault rifles, heavy machine guns, anti-tank Guns and anti-aircraft missile systems. Non-state armed groups often employ various small arms, light weapons, and even heavy artillery. Additionally, the proliferation of arms and ammunition in the region has exacerbated the intensity of the violence, enabling these groups to carry out sustained military operations.
The number of combatants involved in the conflicts in the DRC is substantial. The Armed Forces of the Democratic Republic of the Congo (FARDC) are at the forefront of the armed conflict, fighting against the over 120 armed groups and militia which consist of numerous fighters, many of whom have varying degrees of military training and experience. This results in significant engagements with sizable forces on both sides, leading to protracted and intense clashes.
The conflicts in the DRC have resulted in a high number of casualties, including combatants, fighters, and civilians. The toll on human lives has been devastating, with fatalities and injuries occurring on a significant scale.
Based on information from ACLED, in the past year alone (from 1 December 2022 to 1 December 2023) there have been 4,215 reported fatalities directly as a result various violent conflicts in the country. The number of casualties underscores the gravity of the situation and the brutal nature of the fighting.
The armed conflicts have taken a heavy toll on infrastructure, including homes, schools, healthcare facilities, and critical infrastructure. Extensive material destruction has disrupted the lives of countless people and hindered humanitarian relief efforts. This destruction adds to the intensity of the violence by exacerbating the suffering of the civilian population. In the first month of 2023 alone the UNHCR has reported that, in Ituri due to a series of attacks by non-state armed groups, 2,000 houses were destroyed and 80 schools were either closed or demolished.
The violence in the DRC has led to large-scale displacement of civilians. People flee their homes to escape the conflict, and the number of internally displaced persons (IDPs) and refugees is substantial. Currently, there are over 6.3million IDPs in DRC, with the North Kivu province hosting over 2.3million IDPs. There are also over a million refugees and asylum seekers from DRC. The sheer scale of population displacement is an indicator of the severe security conditions in the affected areas.
The various armed groups have often operated in the eastern provinces of North Kivu, South Kivu, and Ituri, exploiting local grievances and resources to sustain their activities. Several armed groups are involved in these conflicts, each with its own structure and objectives. Major non-state armed groups currently active in DRC include:
Mouvement du 23 Mars (M23): Composed of Tutsi ethnic group members, the M23 has close ties with Tutsi communities in Rwanda. It emerged in Kivu in 2012 following a mutiny by former members of the National Congress for the Defence of the People (CNDP). Its organizational structure and military capacity meet the criteria for a non-state armed group.
National Congress for the Defence of the People (CNDP) [in French: Congrès national pour la défense du people]: Founded in 2006, this group aimed to defend Congolese Tutsi living in the eastern Congo as well as the Congolese Tutsi refugee communities living in Rwanda. In 2009, CNDP signed a peace agreement with the government, ending the armed conflict, However, former members of CNDP formed the M23.
Mai-Mai Yakutumba: Founded in 2007 by “General” William Yakutumba – a self-proclaimed general, the group’s primary goal is to protect the Bembe community in South Kivu. While its hierarchical structure is not entirely clear, its military capabilities and the ability to procure and distribute arms suggest a certain level of organization. Yakutumba also serves as the Secretary-General and Commander of the Coalition Nationale du Peuple pour la Souveraineté du Congo (CNPSC), a coalition comprising the Mai-Mai militias in the South Kivu province of the Democratic Republic of Congo (DRC).
Coopérative de développement économique du Congo (CODECO) – This group as formed in the 1970s as an agricultural cooperative with roots in the agriculturist Lendu communities of the Ituri Province. It participated in the Ituri War from 1999-2003 joining the Patriotic Resistance Front of Ituri (FRPI) and after the cessation of hostilities the group was not dissolved and kept the weapons used during the conflict. Despite a period of inactivity, it re-engaged in armed conflicts in 2018 with clashes with FARDC persisted in 2021, resulting in casualties on both sides. Hostilities with FARDC have continued into 2023.
The Lord’s Resistance Army (LRA) is a Christian extremist organization which operates in northern Uganda, South Sudan, the Central African Republic, and the DRC. The LRA has been waging a guerrilla campaign in Central Africa since 1987, and has been committing massacres, sexual-based violence, mutilations, pillage, and abductions against the local communities as well as attacks against elephants in Garamba National Park in Eastern DRC to pillage and trade ivory. The LRA’s activities in the DRC are a part of the larger armed conflict in the country since the 1990s. The rebel group conducted some of the biggest massacres, (e.g. the Christmas Massacres) in its history in the country and continues to be active there. The account of various actors within the DRC (as per interviews with civilians, and local authorities conducted by Kristof Titeca in the working paper titled ‘The Lord’s Resistance Army (LRA) in the Democratic Republic of Congo: (Un)Invited guests?’) is that the the LRA was invited and supported by the Congolese authorities however such claims have not been properly corroborated.
Democratic Forces for the Liberation of Rwanda (FDLR) – (in French: Forces démocratiques de libération du Rwanda) – founded in 2000, it is one of the most active armed groups operating primarily in Eastern DRC. FDLR is comprised predominantly of ethnic Hutus and members with historical ties to the Rwandan government and army ousted in 1994, as well as Rwandan refugees from the 1994 Genocide. The FDLR has left a devastating impact on the region, such as targeting women and children, sexual violence, killing, maiming and forced displacements among many other violation of IHL.
To provide an in-depth understanding of the internal dynamics, the AAU IHL Clinic will profile one of the notable non-state armed groups active in DRC in 2023, the M23, as an illustrative case.
Mouvement du 23 Mars (M23)
The Movement of March 23 (M23), [in French: Mouvement du 23 Mars also known as the Congolese Revolutionary Army (Armée révolutionnaire du Congo/ARC) however, for the purposes of the AAU IHL Clinic Conflict Monitoring System, only the reference M23 will be used], is an armed group that primarily operates in the North Kivu province of the DRC. The M23 has alleged backing from the Rwandan government, which further complicates the regional dynamics.
The origins of the M23 can be traced back to the disrupted integration process of Rwandophone militants following the Congo Wars. This process led to a split among militants, with some wishing to return to Rwanda and others desiring to stay in the DRC. Those who remained in the DRC formed the National Congress for the Defence of the People (CNDP) under the leadership of Laurent Nkunda, a former militant of the Rwandan Patriotic Front (RPF) – a former Rwandan rebel group and, following the genocide in 1994, the ruling political party. The CNDP aimed to protect Congolese Tutsi and received support from Rwanda.
The M23 name stems from the failed negotiation process between the CNDP and the DRC government on March 23, 2009. The breakdown of the integration process between the FARDC and former CNDP militants in 2012 led to the establishment and activation of the M23. The M23 quickly gained control over territory in Nord Kivu, including the provincial capital city of Goma, which borders Rwanda. They briefly captured Goma in late 2012, with political violence escalating in November before the M23 withdrew in December, following agreements between the DRC government and the M23 brokered by international mediators.
The M23’s violence continued around Goma in the following months, especially in Rutshuru and Nyiragongo territories. Between 2012 and 2013, the M23 engaged in over 20% of all political violence events in the DRC, making it the most active non-state armed group in the country during that period. A significant offensive by the FARDC and United Nations peacekeepers in November 2013 inflicted heavy losses among the M23 ranks and led to a reduction in Rwandan military support. M23 militants were pushed into Uganda, where M23 leader Sultani Makenga and hundreds of fighters surrendered.
However, the M23 re-emerged in late 2021 as the most active non-state armed group in Nord Kivu and as per ACLED’s report, this led to a nearly thirty-fold increase in activity in 2022 compared to the previous year.
The M23 exhibits a well-defined command structure led by its political head, President Bertrand Bisimwa, and long-time military chief General Sultani Makenga. General Makenga's longstanding leadership role and military expertise emphasize the group's hierarchy. His strategic command and coordination, as well as knowledge of the terrains of Eastern DRC have been pivotal in the M23's military operations. Lawrence Kanyuka, the group’s spokesperson, further underscores the organized nature of the group, serving as a crucial link in the designated communication channel. His role not only signifies effective information dissemination but also suggests a structured command hierarchy where official statements are channeled through a recognized representative. This hierarchical arrangement, from the political leadership to the military command and down to spokesperson roles, reflects a disciplined organization within the M23. Such clarity in leadership roles and communication channels contributes to the group's cohesiveness and operational efficiency.
The current M23's headquarters is believed to be strategically located at Mount Sabyinyo, which holds significant strategic importance due to its proximity to the convergence of the DRC, Rwanda, and Uganda borders. This location has provided the M23 with advantageous entry and exit routes. Additionally, the M23 has maintained other camps on Mount Visoke, near the DRC-Rwanda border, and in close proximity to the Rwanda-Uganda border. This extensive network of camps strengthens the argument for the M23 as an organized armed group under International Humanitarian Law.
The M23's strategic capture of essential territories, such as key parts of Rutushuru in March 2022, and the capture of the Bunagana border town near Uganda in June 2022 and other key groupements in Rutshuru in November 2022, provides compelling evidence of the group's adept territorial control. Most notably the capture of the Rumangabo military base in Rutshuru - captured in May 2022 and subsequently withdrawn to the EAC on January 2023 showcase the M23's ability to secure critical locations. The M23's governance and administration of these captured areas are indicative of a well-organized and established structure.
In the territories they control, the M23 have imposed taxes. A report by the UN group of experts on DRC (paras 39-42) in 2022 reported that the M23 have taxed households, cattle, agricultural crops as well as pedestrians that enter or leave through the Bunagana border with Uganda.
While independent verification is pending, the M23 is considered one of the groups potentially capable of downing a UN mission helicopter that crashed within their stronghold. The M23's alleged capability to shoot down a UN helicopter and operate advanced equipment like night vision devices, mortars, machine guns and precision-guided weapon systems suggests access to sophisticated weaponry. This implies a well-organized supply chain, potentially with external support, contributing to the group's military capabilities.
The M23 also has a strong recruitment system in which even “several FARDC officers and soldiers have joined” the group. The UN Group report of 2023 (para 50) showed that new recruits as well as M23 fighters have subsequently been trained in the Tshanzu area in North Kivu, about 50km from Goma – the provincial capital, before being deployed.
The M23 has demonstrated a formidable capacity for strategic planning, coordination, and execution of military actions, exemplified by their successful operations in 2022. Overrunning the Rumangabo military base in May 2022 marked a significant achievement, showcasing their ability to challenge the FARDC's largest military installation in North Kivu. In June 2022, the M23's operation farther north resulted in the capture of Bunagana, compelling FARDC soldiers to retreat to Uganda. These actions reveal a well-organized armed group engaged in a strategic and conventional war, further solidifying the M23’s organization. Recently, in November 2023, advance towards Goma with the capture of Mweso, a town about 100 kilometres from the North Kivu provincial capital underscored their coordinated efforts and territorial influence.
Since 2021, the M23 has engaged in sustained armed hostilities with the FARDC, MONUSCO, other multinational forces and armed groups, through its well organized capacity to defined military strategies and tactics. Mathias Gillmann, former spokesperson of MONUSCO stated on 13 July 2022 at a UN conference that "the M23 behaves more and more like a conventional army, benefits from equipment that is much more sophisticated than in the past." The UN Special Envoy for the DRC Bintou Keita has also stated “during the most recent hostilities, the M23 has conducted itself increasingly as a conventional army rather than an armed group” adding “Should the M23 continue its well-coordinated attacks against the FARDC and MONUSCO with increasing conventional capabilities, the mission may find itself confronted by a threat that goes beyond its current capabilities.”
On several occasions, the authorities of the M23 have concluded ceasefires and peace agreements. A case in point was the withdrawal of the M23 from Kibumba, a town in North Kivu 20km away from Goma “as a goodwill gesture done in the name of peace” on 23 December 2022. Subsequently, on 6 January 2023, the M23 authorities, represented by Commander John Imani Nzenze sat down with and handed over the large Rumangabo military based in North Kivu to the regional forces of the EAC. Although the withdrawal has been termed as being merely symbolic (para 45).
In conclusion, the M23 demonstrates a clear fulfillment of the indicative factors that qualify an armed group as organized under the framework of IHL. The presence of a command structure with designated roles, the existence of a headquarters, effective territorial control, access to weapons and military equipment, strategic planning capabilities, and the ability to negotiate agreements collectively affirm the M23’s status as an organized non-state armed group. These factors collectively establish the M23 as an identifiable entity with the capacity for systematic military action, aligning with the criteria set forth in the Tadić case.
The cumulative requirements of intensity and organization are fulfilled, categorizing the conflict as a NIAC under Common Article 3. Additionally, the ratification of Additional Protocol II by the Democratic Republic of the Congo and the territorial control exerted by the M23 further extend the legal framework to encompass the provisions of APII.
Involvement of Rwanda: Does the classification change?
Allegations have surfaced claiming that Rwanda is supporting the M23 rebel group in the DRC. The President of the DRC Félix-Antoine Tshisekedi Tshilombo addressing the UN General Assembly’s seventy-seventh session on 20 September 2022 denounced direct military attacks and incursion into North Kivu in DRC by Rwanda and its support to the M23. The UN, as well as international human rights organizations such as Human Rights Watch have also accused Rwanda of backing the M23.
The involvement of Rwanda in supporting the M23 armed group in the DRC potentially alters the classification of the conflict, marking a transition from a non-international armed conflict (NIAC) to an international armed conflict (IAC) under International Humanitarian Law (IHL).
The jurisprudence of International Humanitarian Law stipulates that a NIAC can transform into an IAC when a foreign country exercises control over an organized armed group. However, within the jurisprudence, there have been different tests of the threshold of control necessary to establish that there was control over the armed group. The International Court of Justice (ICJ) in the Nicaragua vs. USA case and the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadić case have both established tests for determining when a state can be held responsible for the actions of an armed group. The ICJ has established the “effective control” test, which requires a closer scrutiny by a State over an armed group, meaning that the armed group is completely dependent on the State. This test necessitates “an effective control of the military or paramilitary operations in the course of which the alleged violations were committed”. The ICTY advanced the “overall control” test as a criterion generally valid to impute the conduct of the organized non-state armed groups to a particular state. This test requires “an overall control going beyond the mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations” of the organized non-state armed group’s military activities. In such case, the State becomes a party to the conflict alongside the non-state armed group. This shift in classification is crucial as it subjects the conflict to additional rules and regulations applicable to international armed conflicts, impacting the legal framework and the rights of the parties involved. The ICRC(p.1238) as well as judicial decisions subsequent to Tadić, support the view an overall control over the conduct of organized armed groups suffices in order for the conduct of those groups or units to be legally attributed to the state.Rwanda’s involvement in the conflict in the Democratic Republic of Congo (DRC) by allegedly supporting the M23 since the group’s revival in 2021 has been a subject of international scrutiny. In the context of the armed conflict in the DRC from 2021 to 2023, this involvement of Rwanda, particularly its support for the M23 rebel group, warrants careful examination under the principles of International Humanitarian Law (IHL) and the jurisprudence.
In early August 2022, a UN Group of Experts in a confidential report stated it reported obtaining “solid evidence” that Rwandan troops have been fighting alongside the M23 in Eastern DRC, particularly in the Rutshuru territory, and providing it with weapons and support. The report stated that Rwandan Defence Force (RDF) members conducted joint attacks with M23 against FARDC and other armed groups in DRC, and that it has provided the M23 with weapons, ammunition, and uniforms. Human Rights Watch (HRW) has also reported that the M23 is backed by Rwanda, in a report where they stated that the group committed summary executions and forced recruitment of civilians in eastern Democratic Republic of Congo.
The UN Group report (para. 52)detailed evidence including photos of Rwandan soldiers in an M23 camp, drone footage showing columns of hundreds of soldiers marching near the Rwandan border, and photos and videos showing M23 fighters with new uniforms and equipment as well as equipped with VHF radios, night-vision equipment, vehicles, various types of assault rifles, heavy and light machine guns, various types of rocket, propelled grenade launchers, rockets, grenade launchers and grenades, recoilless guns, mortar shells and boxes of ammunition. The UN Group (para 60) also reported of a plan of the RDF “labelled 'North Kivu operations' to reinforce M23 by providing troops and materiel and to use them to secure control over mine sites, gain political influence in the Democratic Republic of the Congo and decimate FDLR.” Human Rights Watch has also stated that it has significant photographic and other evidence that Rwanda is not only giving logistical support to the M23, but that Rwandan troops are reinforcing or fighting alongside the armed group inside Congo. There have also been analysis that the reason why M23 is increasingly capable of fighting like a conventional army, with equipment such as night vision devices and longer-range weapons, such as mortars and machine guns, might be because they are supplied by a well organised army, such as the RDF.
The UN report from 2022 (para 30) also mentioned that the M23 jointly with RDF troops attacked the FARDC camp in Rumangabo in May 2022. When the M23 took control of the strategic border town of Bunagana in June, Rwandan soldiers were either present or had provided equipment to the rebels. As reported by the UN Group (para 61) in 2023, the alleged “North Kivu operations” plan of the RDF “were designed and coordinated by General James Kabarebe, who is currently the Defence and Security Adviser to the President of Rwanda, and who received support for its implementation from other senior military officials of the RDF.
The UN Group (para 59) reported that it has obtained solid evidence of the presence of, and military operations conducted by RDF members in Rutshuru territory between since November 2021. The RDF also reportedly led joint attacks with M23 fighters against the DRC. The UN group stated that it “received information confirming that, on the ground, operations by RDF, including those by RDF special and reserve forces, were coordinated by Brigadier General Andrew Nyanvumba. Deployed RDF troops included members of the 201st and 301st brigades, as well as members of the RDF special forces, commanded by Captain Niragire Jean Pierre, who were deployed for specific operations from May 2022 onward. Gasasira, in turn, received instructions from Major General Ruki Karusisi, the overall commander of the RDF special forces.” Further adding, that it has obtained “evidence – including documentary and photographic evidence and aerial footage – of military operations by soldiers clearly attired in RDF military uniform in Rutshuru, Masisi and Nyiragongo territories between November 2022 and March 2023”. Human Rights Watch similarly reported that the Rwandan army has deployed troops to eastern Congo to provide direct military support to the M23, helping them expand control over Rutshuru and neighboring Masisi territories.
Some partners of Rwanda, such as the United States (US) and the European Union (EU) have suspended their cooperation following accusations that Rwanda had supported the M23. In addition, the US imposed financial and property sanctions on six individuals, including a senior Rwanda military commander. Similarly, the EU added a Rwandan army captain, Capt. Jean-Pierre Niragire, to its sanctions list for his involvement and support to the M23 rebel group.
Despite the mounting evidence and international consensus pointing to Rwanda’s involvement in supporting the M23, it’s important to note that Rwanda has vehemently denied accusations by DRC’s government that it supports the M23 or that it has sent troops into the country. M23, in turn, denied accusations of being a proxy force for Rwanda and maintains its autonomy in decision-making, including the ability to sign ceasefire agreements independently. Its political leader has stated that “M23 would have captured the DRC capital, Kinshasa, within two months” if the allegations were true.
Based on the available facts, the financing and equipping of the M23 by Rwanda, as detailed in the UN Report, align with the requirements of the overall control test. The comprehensive support in the form of sophisticated weapons and equipment provided, suggests a level of involvement that extends beyond mere logistical aid. The planning and supervision of military operations, including joint attacks on FARDC camps, further implicates Rwanda in the military strategy of the M23. The reported coordination by high-ranking Rwandan military officials strengthens the case for overall control. Rwandan forces’ alleged direct involvement, as evidenced by their presence in various territories and joint attacks, aligns with both the effective and overall control tests. The evidence presented in the UN Reports and that of HRW, of RDF members conducting military operations and coordinating with M23 fighters underscores Rwanda’s direct participation in the conflict.
Notwithstanding Rwanda’s vehement denial and M23’s claim of autonomy, the mounting evidence and international consensus challenge the credibility of these assertions. The facts stated above strongly suggest that Rwanda’s involvement in supporting the M23 meets, at the very least, the overall control test. The extensive evidence of military, logistical, and strategic support positions Rwanda as a party to the conflict alongside the M23, necessitating a reevaluation of the conflict’s classification under IHL. The nuanced nature of the situation emphasizes the importance of a thorough and impartial examination to ensure respect of the relevant international humanitarian law rules.
International and Regional Interventions
The DRC conflict has attracted the involvement of numerous external actors, including neighboring countries. Rwanda and Uganda have historically supported various rebel groups, while the DRC’s government received support from Angola and Zimbabwe. The United Nations (UN) has played a significant role through its peacekeeping mission, MONUSCO, which is one of the largest and most challenging UN missions globally. Additionally, regional organizations like the African Union (AU) and the Southern African Development Community (SADC) have been engaged in peace efforts.
MONUSCO-FARDC joint operation
Key International and regional actors playing significant roles in the DRC’s armed conflicts
The UN's engagement in the current conflict in the DRC dates back to the late 1990s. The role of the United Nations (UN) and the UNSC (United Nations Security Council) with regards to the conflict in the DRC is multifaceted and crucial. Apart from the peacekeeping missionMONUSCO, which will be discussed below, the UN and the UNSC have been involved in various diplomatic, political, and humanitarian efforts to address the root causes and consequences of the conflict.
The UN has supported the implementation of the Framework for Peace, Security and Cooperation for the DRC and the Region (discussed below), which was signed in 2013 by 11 countries in the presence of the UN Secretary-General. In addition, the global body has been providing humanitarian assistance and protection to the millions of people affected by the conflict, through various UN agencies, funds, and programs, such as OCHA, UNHCR, UNICEF, WFP, and WHO. The UN also supports the DRC government in addressing the challenges of human rights, justice, and development.
The UNSC on its part, has passed over 70 resolutions and many more statements on the DRC since August 1999 where it has, among others, condemned and called for an end to the violence and human rights violations committed by armed groups and state actors and urgeed all parties to respect the sovereignty and territorial integrity of the DRC and to cooperate with the UN and regional organizations.In addition, it has imposed sanctions and arms embargo on individuals and entities that threaten the peace and security of the DRC, through the UNSC Sanctions Committee and the Group of Experts on the DRC. The sanctions include travel bans, asset freezes, and restrictions on the supply of arms and related material. The latest renewal of the UN sanctions regime on the DRC will last until 1 July 2024, continuing the sanctions on transport, finance and travel as well as arms embargo.
The most notable engagement of the UN in the DRC is through the MONUSCO (the UN Organization Stabilization Mission in the Democratic Republic of the Congo). In 1999, the UN established the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC), which later evolved into the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO). MONUSCO is one of the largest and most complex UN peacekeeping missions in the world. Established in 2010, MONUSCO aims to protect civilians and stabilize the region. However, it has faced attacks and criticism for perceived failures in protecting civilians. MONUSCO's mandate includes various critical components:
Protection of Civilians: One of MONUSCO's primary objectives is to protect civilians from violence, including attacks by armed groups and human rights abuses.
Support for Political Processes: The mission is actively involved in supporting political initiatives and processes aimed at resolving the conflict and achieving a sustainable peace.
Stabilization and State-Building: MONUSCO also engages in activities related to stabilizing conflict-affected areas and assisting in state-building efforts, such as supporting electoral processes and building the capacity of national institutions.
Security Sector Reform: MONUSCO assists the DRC government in reforming and strengthening its security forces, including the Congolese military (FARDC), to enhance their ability to maintain security and protect civilians.
Disarmament, Demobilization, Repatriation, Reintegration (DDRR): MONUSCO is involved in DDRR programs aimed at encouraging armed combatants to disarm, demobilize, and reintegrate into civilian life.
MONUSCO has faced numerous challenges, including the vastness of the DRC, the presence of multiple armed groups, and complex political dynamics, alongside the frustration of the general public towards the deterioration of the security situation. Nevertheless, the mission has achieved notable successes, such as supporting the 2006 and 2011 elections, which marked significant steps in the country's democratic transition. The mission's involvement in military operations, in conjunction with the FARDC, has also contributed to the neutralization of various armed groups, including the defeat of the M23 in 2013.
Notwithstanding, after two decades, the DRC is now calling for the withdrawal of the MONUSCO. President of the DRC Félix-Antoine Tshisekedi Tshilombo in his statement at the 78th session of the United Nations General Assembly (UNGA) on 20 September 2023, citing that the MONUSCO has not been successful in confronting the conflict and violence in the country, stated that “he has instructed the Government to begin discussions with UN authorities to accelerate and move up the MONUSCO withdrawal deadline from December 2024 to December 2023”.
The AU has also been engaged in efforts to address the DRC conflict, recognizing the importance of African-led solutions to African conflicts. Although it has not participated militarily, the AU has supported various initiatives and processes aimed at resolving the conflict and achieving a sustainable peace in DRC. One of such initiatives was the Framework for Peace, Security and Cooperation for the DRC and the Region, Framework for Peace, Security and Cooperation for the DRC and the Region signed in 2013 by 11 countries in the presence of UN’s former Secretary General Ban Ki Moon. Furthermore, in 2021, the AU has welcomed the DRC as a memeber of its African Peer Review Mechanism (APRM)which is a voluntary self-assessment tool for promoting good governance and development in the continent.
The AU's Peace and Security Council has also played an important role in discussing, mediating, and formulating strategies to address the conflict. The PSC has held numerous sessions to deliberate on the DRC situation and explore potential solutions. Since 2004, the PSC has held almost 40 meetings where the situation in the DRC was discussed at an Ambassadorial and Heads of State and Government level.
DRC joined the SADC in 1998 and since then the regional community has been involved in various interventions in the DRC, ranging from military intervention, mediation, and supporting peacebuilding processes to advocacy with the international community. SADC has deployed troops from its member states Malawi, South Africa and Tanzania to the DRC to help fight rebels in the country’s east, as part of the UN intervention brigade authorized by the Security Council in 2013 in the fight against M23. In anticipation of the DRC general elections in December 2023, SADC has reiterated its “solidarity to assist the government and people of the Republic of Congo in its efforts to restore peace and stability in the eastern part of the country”.
On July 2022, DRC became a member of the East African Community. Subsequently, through the request of the President of the DRC Félix Tshisekedi’s request, the East Africa’s DRC Force was initiated as a regional military intervention aimed to quell the violence in the eastern DRC. The force was authorized by the seven member states of the East African Community (EAC). By the time the EAC’s High Level Consultative Meeting of the Summit at heads of State level was held on November 7, 2022, Burundi, Kenya and Uganda has deployed their forces through the Joint Regional Force of the EAC in Eastern DRC, and South Sudan was urged to contribute as well. The force has been deployed gradually since then, in response to the resurgence of the M23 rebel group.
The East Africa’s DRC force has faced several challenges and criticisms, such as the lack of a clear mandate, the coordination with the existing UN peacekeeping mission MONUSCO, and the potential ulterior motives of some of the contributing countries. However, the effectiveness and impartiality of the force has been questioned particularly with the involvement of Rwanda and Uganda, and the historical as well as current disputes between the countries.
The place of International Humanitarian Law
IHL, or international humanitarian law, is a set of rules that seek to limit the effects of armed conflict on people and objects. It protects those who are not or no longer participating in hostilities, such as civilians, wounded, sick, and prisoners of war, and restricts the means and methods of warfare, such as weapons and tactics. As has been qualified above, there have been protracted armed conflicts in DRC for the past two decades, involving multiple states, armed groups, and multinational troops. Therefore, IHL applies to the various conflict contexts in the country and to the parties involved in the conflict, which include the FARDC, the M23 rebel group and other organized non-state armed groups, as well as international and regional forces.
However, the nature and scope of the applicable laws may vary depending on the classification of the conflict. According to the analysis above, the conflict in the DRC is primarily a non-international armed conflict, meaning that it takes place between the FARDC, and many non-state armed groups, or between such groups themselves. In this case, the parties are bound, at the very least, by Article 3 common to the 1949 Geneva Conventions, which provides for minimum standards of humane treatment and prohibits various forms of violence.
In addition, as the DRC is a signatory, the 28 provisions of the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (known as Additional Protocol II) will apply to situations where organized non-state armed groups fighting against the FARDC in DRC have control over territory within the country. It should be noted in this case that Additional Protocol II does not apply to the conflict amongst the organized non-state armed groups themselves.
All parties in the DRC are also bound by customary international humanitarian law. Customary international humanitarian law (CIHL) is a set of rules that come from “a general practice accepted as law” existing independent of treaty law. CIHL fills the gaps left by treaty law in non-international armed conflicts further strengthening the protection offered to victims of the conflict. The conflict in the DRC is primarily a non-international armed conflict. Therefore, all parties to the non-international armed conflict in DRC are bound by customary international humanitarian law applicable to non-international armed conflicts, which consists of rules that reflect the general practice and acceptance of states and other actors. These includes 136 (with some authors arguing that the number goes as high up as 147) out of the 161 CIHL rules that apply to both international and non-international armed conflicts. These rules include, for example, the fundamentalprinciples of distinction, proportionality, and precaution in attack, the prohibition of indiscriminate attacks, and the protection of the wounded and sick.
IHL treaty laws such as the Four Geneva Conventions of 1949 and Protocol I Additional to the Four Geneva Conventions of 1949 relating to International armed conflicts (Additional Protocol I), as well as Customary IHL of international armed conflicts also apply to the conflict in the DRC in case it involves elements of an international armed conflict, meaning that it takes place between two or more states. This may be the case looking at the strong evidence that another state, Rwanda in particular, is supporting the M23, either by deploying its own troops or by providing material or logistical assistance beyond mere equipping, financing or training and including general military planning, coordination. In this case, with both the DRC and Rwanda being signatories of the four Geneva Conventions, as well as Additional Protocol I, the treaties apply to the conflict as it relates to the conduct of the combatants of both states.
In addition to international humanitarian law, there is now a growing consensus that international human rights law continues to apply during times of armed conflict. While IHL is designed specifically for conflict situations, human rights law is applicable in both peace and conflict and extends protection to individuals based on their inherent dignity, with certain rights having been recognized as having extraterritorial application. As the DRC is a signatory to several human rights treaties, it is required to respect, protect and promote human rights, even in armed conflicts, and to hold accountable those who violate them including the non-state armed groups. Non-state armed groups are increasingly considered to be bound by international human rights law if they exercise de facto control over some areas.
In the context of peace forces and multinational forces operating in the DRC, such as MONUSCO and the EAC regional forces, the application of treaty IHL raises several key considerations. Particularly for the MONUSCO, historically, the UN has asserted that its peace forces are bound by the principles and spirit of IHL but not necessarily by the detailed rules. However, scholars[1] argue that peace forces become bound by IHL when engaged in hostilities against a State or a Non-State Armed Group, emphasizing the separation between jus in bello (law of war) and jus ad bellum (law in the use of force), and therefore, even if the deployment of the peace forces such as the MONUSCO is considered legitimate and deployed under the UN Charter, IHL still applies. The question of whether IHL binds peace forces depends on the factual situation and the entity exercising command and control over the operation, whether it be the UN or contributing states. The ICRC, as the guardian of IHL, holds the position that IHL applies to peace forces as well.
However, determining when peace forces are considered engaged in armed conflict and whether it is the IHL of IACs or that of NIACs that applies remains contentious.
The ICRC in this case has proposed a “support-based approach,” (p.584) suggesting that contributing states or the UN supporting the armed forces of a host state may be considered parties to the conflict. According to this approach and in the case of the DRC, even if the intensity criterion of Common Article 3 is not explicitly met by multinational forces, their engagement in a pre-existing NIAC could transform them into a party to that conflict. This hinges on the nature of their support, as actions integral to the pre-existing NIAC link them to the armed conflict. The support provided by multinational forces is viewed as a co-belligerent role assisting one of the parties in the ongoing conflict, making them a party to the pre-existing NIAC. Under this approach, the conditions for the applicability of IHL to multinational forces, such as the MONUSCO, involve the presence of a pre-existing NIAC in the territory where these forces intervene, their actions related to the conduct of hostilities within the context of the existing conflict, the military operations being in support of a party to the pre-existing conflict, and the actions of the forces being carried out based on an official decision by the Troop Contributing Country (TCC) or international organization involved. Fulfillment of all four conditions establishes the applicability of IHL to the actions of multinational forces in the context of a pre-existing NIAC.
Scholars[2], on the other hand, suggests applying the usual criteria based on facts on the ground to determine the applicable IHL framework, meaning if the peace forces are engaged in conflict with the state armed forces, then IHL of IACs will apply and if they are engaged in conflict with non-state armed groups then IHL of NIACs will apply provided that the intensity and organization elements are fulfilled.
[1] Marco Sassoli, International Humanitarian Law Rules, Controversies, and Solutions to Problems Arising in Warfare, Edward Elgar Publishing, 2019, pp. 469-470
The conflict in the DRC has resulted in a severe humanitarian crisis. Millions of Congolese have been displaced from their homes, leading to one of the largest internally displaced populations in the world. Displacement, coupled with the violence, has disrupted access to basic services, education, and healthcare. The conflict has left an indelible mark on the population, with widespread sexual violence, child recruitment, and countless lives lost due to the ongoing violence and related health issues. The AAU IHL Clinic will highlight only some of the pressing humanitarian concerns currently grappling the DRC.
Record number of Internally Displaced Persons (IDPs):
The number of displaced people resulting from the conflict in the DRC has reached a record high of 6.9 million, as reported by the United Nations High Commission for Refugees (UNHCR) as of February 2023. From this number 5.8million are internally displaced within DRC, over 1million Congolese are refugees and asylum seekers in neighbouring countries, and over 500,000 are refugees and asylum seekers from other countries living in the DRC.
The violence, particularly in the eastern province of North Kivu, has forced people to flee their homes within the country, and many of them are in desperate need of assistance. With Eastern Provinces most affected, as of October 2023, about 5.6 million internally displaced people are concentrated in the eastern provinces of North Kivu, South Kivu, Ituri, and Tanganyika. The ongoing conflict, particularly with the M23, has been cited as the primary reason for this displacement. North Kivu alone has seen over 2.3 million people displaced due to the conflict with at least 410,000 people have been displaced since the beginning of 2023. Approximately 75,000 of them have sought refuge in the Lushagala site near Goma. This site is one of many spontaneous locations and collective centers in Goma and Nyiragongo another camp hosts over 585,000 displaced people. These spontaneous sites now accommodate 25% of the more than 2.3 million IDPs in North Kivu.
Conflict Related Sexual Violence
DRC has been plagued by conflict-related sexual violence, which has had devastating effects on the country’s population. This violence often includes extreme forms of abuse such as gang rape, genital mutilation, torture, and the intentional transmission of sexually transmitted diseases. The UN Secretary-General’s report on conflict-related sexual violence indicates that sexual violence in the DRC is being used as a weapon of war, torture, and retaliation amid deepening political and security crises.
Since 2020, sexual violence has been widespread in Eastern DRC, particularly in the provinces of North Kivu, South Kivu, Ituri, and Tanganyika. In 2022, the MONUSCO documented 701 cases of conflict-related sexual violence, affecting 503 women, 187 girls, and 11 men. The majority of these cases were attributed to non-State armed groups, while state actors from the DRC and neighboring countries that support the DRC in the armed conflicts accounted for the remaining cases. The UN Secretary General’s Report on 10 October 2022 on Children and armed conflict in the DRC(para 22) stated that “Of note was that sexual violence continued to be the violation most attributed to government forces, of which elements of FARDC were the main perpetrators”
Victims of of such widespread sexual violence in DRC suffer from long term physical and psychological injuriesand trauma, as well as HIV infections. There have been various reports of penetration with foreign objects such as guns, knives, and sticks, as well as female genital mutilation in the DRC. There has been a growing call for the accountability of perpetrators of sexual violence in the DRC. Although in December 2022 DRC’s authorities prosecuted and convicted 22 members of the Armed Forces of the Democratic Republic of the Congo, 11 members of the Congolese National Police and 18 civilian men for conflict-related sexual violence, conviction rates are still shockingly low, discouraging survivors from coming forward.
Stay tuned for ongoing updates on the armed conflict in the Democratic Republic of the Congo, including important developments through the Unrest Early AlertSystem – brought to you by AAU IHL Clinic
The Church of Saint George – one of eleven rock-hewn monolithic churches in Lalibela
On 8 November 2023, news of a fighting between the Federal Army, the Ethiopian National Defence Force (ENDF), and dissident militias popularly known as Fano in the historic town of Lalibela – Ethiopia, caused concerns for the safety of the churches of the town, following reports of firing of heavy weapons in the vicinity of the churches. There are reports that the churches sustained some damage (see here and here).
Bete Medhane Alem – an Orthodox underground monolith rock-cut church – Lalibela, Ethiopia
The Lalibela rock-hewn churches comprise of 11 churches carved out of monolithic blocks of rocks. Their construction is credited to the 12th century King, Lalibela, as ‘new Jerusalem’ as a site of pilgrimage and religious devotion. They are inscribed by United Nations Educational, Scientific and Cultural Organisation (UNESCO) as world heritage site in 1978. The Churches still hold a significant importance to believers of the Ethiopian Orthodox church and the cultural life of Ethiopians.
Unfortunately, this is not the first time an armed conflict threatened the churches. There had been a similar concern in 2021 during the conflict with the ENDF and Tigray Defence Forces when the fighting entered the town. Besides Lalibela, cultural properties in the Tigray region, notably the obelisks in Axum and the historic mosque of Al-Nejashi, were similarly threatened and partially damaged, in the case of the latter. This trend calls into question the obligation of parties to a conflict under International Humanitarian Law (IHL) towards the protection of cultural property in Ethiopia’s latest conflict. This post briefly covers the applicability of IHL rules of conduct of hostilities in protecting cultural property in the current conflict in the Amhara Regional State and the implications of their application.
Developments leading to the conflict in the Amhara Regional State started over disputes over the order Federal Government to disband the Region’s paramilitary special forces and disarm the militias popularly known as Fano, who fought alongside the ENDF in the conflict in Tigray. This move was part of the terms of the Cessation of Hostilities agreement (CoHA) between the Federal Government and the Tigray Peoples’ Liberation Front (TPLF) in Pretoria on 2 November 2022, from whose negotiation the Militias were excluded. Opposing the move to disband, a significant portion of the special forces defected and joined the Fano and mobilised against the Federal Government. Following months of such mobilisation, fighting broke out in early August 2023 in several towns of the Region including the capital, Bahir Dar, and Gonder.
The armed violence in the Amhara Regional State: Is there a non-international armed conflict (NIAC)?
Under IHL, for a conflict between state armed forces and armed groups or dissident forces to be considered a NIAC, it must reach a sufficient level of intensity, and the armed group or dissident group involved must exhibit a certain level of organisation (ICTY, The Prosecutor vs. Dusko Tadic, para. 70). While it is difficult to assess the fulfilment of these two requirements outright, the ICTY has forwarded indicative factors which help discern whether the intensity and organisation criteria are fulfilled. Accordingly, factors such as duration, number, and intensity of individual confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones are considered as indicative of the intensity of a conflict when considered as a whole. (ICTY, The Prosecutor vs. Ramush Haradinaj et.al, para.49). Similarly, factors such as the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of headquarters; the fact that the group controls a territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; the ability to plan, coordinate and carry out military operations, including troop movements and logistics; the ability to define a unified military strategy and use military tactics; and the ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords are considered as indicators of an armed group’s organisation for the purpose of IHL (Ibid, para.60). When the two thresholds are considered to have been fulfilled following an assessment based on the indicative factors, IHL of NIAC begins to apply to a situation of armed violence.
In the case of the current conflict in the Amhara Regional State, from the available information, it is possible to conclude that the conflict between the ENDF and the Fano meets the thresholds of NIAC. As documented by the Ethiopian Human Rights Commission (EHRC), fighting between the parties has been reported in the majority of the Region, testifying to the increased number of confrontations between the parties. (See also here and here) There have also been reports of the use of heavy weapons and drones by the ENDF, allegedly intending to target Fano fighters. Moreover, the number of Internally Displaced People (IDPs) has reportedly increased, with the EHRC reporting 3000 people being displaced from just one area of the Regional State. Moreover, the declaration of a state of emergency by the Federal Government could further suggest that situation is not of a generalised violence which a regular law enforcement operation could handle. These factors, taken together, indicate that the conflict has reached the necessary intensity threshold.
Meanwhile, the reports of the fighting also indicate that the armed group (Fano) holds the capacity to coordinate and carry out military operations, as evidenced by attacks on a prison in Bahir Dar, repeated military operations to capture the major cities in the Region and attacks on police stations with the alleged purpose to capture weapons and ammunitions. Moreover, the protractedness of the violence in the Region, since August, is a testament to the intensity of the conflict as well as the ability of the Fano to engage in sustained hostilities. These factors, taken together, indicate that the Fano militias might have the necessary organisation for the purpose of IHL. Therefore, it is possible to conclude that the conflict between the ENDF and the Fano is a NIAC. As a result, both the ENDF and the Fano are obliged to respect Common article 3 of the Geneva Conventions and customary IHL rules. They would also have to abide by Additional Protocol II (AP II) to the Geneva Conventions applicable in NIACs to which Ethiopia is a party. Nevertheless, as of writing, there is no clear information that prove that the Fano militia exercise territorial control, a material condition necessary to determine the applicability of the Protocol.
The Lalibela Churches and the IHL rules on the protection of cultural property in armed conflict
Ethiopia is a party to the Geneva Conventions as well as APII. Moreover, it is a party to the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict (Hague Convention) and its Protocol I but not a party to its Protocol II, adopted under the auspices of UNESCO to protect cultural property during armed conflicts. These instruments, taken together, provide the applicable rules protecting cultural property from the effects of hostilities during armed conflicts under IHL in the conflict in the Amhara region.
Art.16 of AP II prohibits parties to a conflict from any act of hostilities towards ‘historic monuments, works of art, or places of worship which constitute the cultural or spiritual heritage of peoples.’ It, moreover, prohibits using such property in support of military efforts. The types of monuments or works of art mentioned under Art.16 are defined as cultural property under Art.1(a) of the Hague Convention, as a movable or immovable property of great significance to the cultural heritage of every people, including, among other things, religious monuments or groups of buildings which form historical or archaeological interest. This post adopts this definition. Given their listing as a World Heritage site by UNESCO and the significance they carry for the believers of the Ethiopian Orthodox Church as places of pilgrimage and devotion as well as to the history of Ethiopia, it is safe to conclude that the Lalibela rock-hewn churches fall under the ambit of Art.16 as well as Art.1 of the Hague Convention.
Therefore, the prohibition established under Art.16 of APII extends to the rock-hewn churches of Lalibela in that they cannot be subject to attack as well as used for the military effort of a party to a conflict. However, the application of Art.16 is without prejudice to the provisions of the Hague Convention. The latter, on its part, obliges high contracting parties to respect cultural property situated in their territories by refraining from using ‘the property and its immediate surroundings’ for purposes which would likely expose it to destruction or damage during armed conflict (Art.4). Accordingly, the defence forces of a High Contracting Party must avoid placing their camps, bases or conducting their military operation or any other similar activities near such sites as this might put the cultural properties in danger of destruction or damage. Moreover, under Art. 4 (1), the High Contracting Parties must refrain from directing an attack against a cultural property. As provided under Art.19(1), these obligations apply to NIACs. Hence, the parties to the conflict in the Amhara Region must not direct an attack against the churches or the site where they sit.
However, the obligation to respect cultural property under the Hague Convention is not absolute. It can exceptionally be waived when required by imperative military necessity (Art.4(2)), though it does not specify the scope of this exception. This exception, though, should be seen as different from ‘military convenience’ and it presupposes that the party to a conflict must not have any other way of achieving the military objective sought. (O’Keefe, 2009, p.123) This is backed up by Art.6 of Protocol II of Convention. As Ethiopia is not a party to the latter, the obligation under art.6 will not be applicable as a matter of law. However, the inclusion of such provision shows the threshold of imperative military necessity must be higher than a mere ‘military convenience.’ To conclude this discussion, from the combined reading of the APII of the Geneva Conventions and Art.4 and Art.19 of the Hague Convention, it is possible to conclude that parties to a conflict in a NIAC are prohibited from directing attacks against a cultural property or using it to support the military effort in general unless such protection is waived for imperative military necessity.
A potential challenge against the conclusion above is regarding the applicability of APII to the current conflict. Due to the uncertainty regarding the territorial control of the Fano, it is doubtful whether APII applies as it requires the organized armed group to maintain some level of control over territory, as per Art.1(1) of the Protocol. However, the protection of cultural property is, nonetheless, a customary IHL rule in a NIAC (Customary IHL, Rule 38(a)). Therefore, both the ENDF and the Fano must take special care in their military operation to avoid damage to the churches in their operations around the area. Moreover, customary IHL also prohibits both parties from using the churches for purposes likely to expose them to destruction or damage, such as placing military bases or camps or, in general, carrying out military operations near the churches (Rule 38(b)). As in the Hague Convention, this prohibition can be waived in the case of imperative military necessity. In such a case, the parties would still be bound by their obligation towards civilian objects such as the principle of distinction (Customary IHL, Rule 7-10), proportionality (Rule 14) and precaution in attack (Rule 15-21) as well as not placing military objectives near such objects. (Rule 22-24)
Not complying with the obligation to respect cultural property under AP II, the Hague Convention, and customary IHL entails a war crime under the FDRE Criminal Code. It provides, under Art.270 (j), that whoever organizes, orders, or engages in the targeting, destruction, or removal of cultural property such as the Lalibela churches, as well as rendering them useless or uses them to support their military effort commits the war crime and is punishable with rigorous imprisonment from five years to twenty-five years or in more severe cases, including life imprisonment or the death penalty. This provision does not mention ‘imperative military necessity’ as an element of the crime. As such it invites a question of whether ‘imperative military necessity’ would serve as a defense for any one accused of war crime under this article or whether it can be read together with the provisions of APII, and the Hague Convention. These questions would be a fascinating topic to investigate in another contribution.
Conclusion
The reading of the relevant IHL rules on the protection of cultural property and the specialized rules in the UNESCO instruments clearly show there is a special protection granted for monuments of great significance such as those of Lalibela rock-hewn churches. However, their protection under these instruments is not absolute as they are subject to the ‘imperative military necessity’ exception. However, as such term is not clearly provided, it leaves it open to attempts by parties to circumvent it. Going forward, strengthening the protection of cultural property during armed conflicts in Ethiopia requires as a first step the adoption of Protocol II of the Hague Convention which provides a better legal framework of protection. It, among other things, limits the instances where ‘imperative military necessity’ exception could be invoked, provides a specific precautionary obligation on parties to a conflict and creates a system of ‘enhanced protection.’
Author’s Bio
Fekade Abebe is a PhD candidate in International Law at the Graduate Institute of International and Development Studies. He has an LL.M in International Humanitarian Law and Human Rights from the Geneva Academy of International Humanitarian Law and Human Rights, and an LL.M in Public International Law from Addis Ababa University, Ethiopia.
From 1908 to 1960, after massive international pressure, the Congo Free State was sold to and colonized by the 
Mobutu’s regime was marked by authoritarianism, corruption, and the pillaging of the DRC’s resources. Corruption was rampant during Mobutu’s reign. He amassed a large personal fortune through economic exploitation and corruption, leading some to call his rule the strongest example of "
