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

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

By: Dunia Mekonnen Tegegn

Image source:Eduardo Soteras/AFP via Getty Images

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

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

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

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

Violations of Women’s Human Rights 

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

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

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

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

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

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

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

Impacts of the conflict on women and girls

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

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

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

Calls to actions

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

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

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

In the long run, the following actions need urgent attention

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

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

AAU-IHL Clinic Tigray related

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

Author: Marishet M. Hamza

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

Factual Background 

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

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

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

OLA military activities

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

Classification of the conflict 

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

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

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

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

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

The effect of the TPLF-OLA alliance 

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

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

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

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

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

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

Author’s Bio

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

AAU- IHL Clinic Tigray related

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

Author: Wubeshet Tiruneh

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

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

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

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

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

The Use of Lethal Force Outside of Actual Hostilities

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

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

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

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

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

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

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

The Extraterritorial Human Rights Obligation of Eritrea

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

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

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

Conclusion

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

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

AAU- IHL Clinic Tigray related

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

Author: Dunia Mekonnen Tegegn

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

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

In Ethiopia, the male is the acknowledged master of his family. Marriage is viewed as a means of strengthening the link between families and ethnic groups. Thus, the role of women in this society is that of cementing family ties through bride-wealth and producing children. The cultural perception of women as the property of men has led to a situation where warring factions use rape as a weapon. Researches discussing justice for women impacted by conflicts underline that women who survive rape experience trauma and are usually stigmatized by their own communities. As a result, many women could be reluctant to report rape.

The Tigray Conflict and Violations of Women’s Human Rights

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

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

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

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

The obligation to protect, is the obligation of a government to defend women’s rights against infringement by third parties not affiliated to the government. In addition to CEDAW, all members of the African Union including Ethiopia are bound to respect the rights protected under the African Charter on Human and people’s Rights. The African Charter demands the eradication of discrimination against women and calls for the protection of women’s rights as guaranteed under international human rights frameworks. The Charter’s clear reference to international women’s rights instruments is very strong and provides more protection to women in Africa including their protection from rape. More specifically article 5 of the charter prohibits all forms of exploitation and degradation including slavery, slave trade, torture, cruel, inhuman, or degrading punishment and treatment. Interpretations provided by the African Commission have directly referred to the application of article 5 not only to physical and psychological harm but also to those, which relate to the individual’s personhood. Therefore, it is submitted that Article 5 of the Charter guarantees the protection of women from rape during conflict. 

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

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

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

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

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

  1. Collaborate with local and international fact-finding missions to ensure that all perpetrators of sexual and other violence against women during the conflict are properly identified and prosecuted to deter the further commission of violent acts not only in Tigray but also in other parts of Ethiopia where violent crimes involving women are documented.
  2. Take appropriate legal, institutional, and financial measures to ensure the provision of comprehensive services for survivors of sexual violence including but not limited to medical, psychological, and social services necessary for their rehabilitation and reintegration with their community. 
  3. Facilitate improved funding and support to expand the provision of vital services including one stop centers and safe homes, humanitarian contact, and language access for reporting violent crimes.
  4. Ensure justice and accountability for rights violations and grant other relevant remedies including compensation.[1]

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

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

AAU-IHL Clinic Tigray related

The War in Tigray: Investigating Violations of International Humanitarian Law

Photo Credit: UNFPA/Sufian Abdul-Mouty

Author: Lea Mehari Redae

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

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

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

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

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

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

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

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

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

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

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

Logo of the International Humanitarian Fact-Finding Commission

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

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

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

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

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

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

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

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

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

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

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

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

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

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

AAU- IHL Clinic Tigray related

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

Author: Marishet Mohammed Hamza

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

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

Characterization of the situation : An ‘armed conflict’?

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

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

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

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

No, it is a ‘law enforcement’ operation!

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

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

Why would the prescription be relevant?

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

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

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

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

International obligations are triggered irrespective of the government’s description

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

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

A glimpse at some of the international law obligations

Human rights law

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

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

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

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

International humanitarian law 

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

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

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

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

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

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

AAU- IHL Clinic Tigray related

Detention in Non-International Armed Conflicts: overview of the scholarly debate in the context of the conflict in Northern Ethiopia

Author Fekade Alemayhu Abebe

https://www.dw.com/en/ethiopia-nears-war-in-tigray-as-abiy-sends-in-troops/a-55500897
  1. Introduction

Since the attack on the Ethiopian National Defense Forces (ENDF) northern command base in the capital of Tigray regional state Mekelle, in the early hours of November 4, 2020 by forces loyal to the Tigrayan Peoples Liberation front (TPLF), the Northern region of Ethiopia had been a site of intense military confrontation. On November 23, 2020, the ICRC Ethiopia released a statement denying a claim by the Tigray forces that it has received 858 detainees of Ethiopian National defense force (ENDF) soldiers who were captured in the context of the conflict in Northern Ethiopia.The ICRC reiterated that it is willing to extend its services in returning those detained, should it be asked. This story raises some critical issues from the perspective of IHL like whether armed groups can detain in armed conflicts? If so, on what legal basis? Does IHL provide a sufficient legal base for detentions outside a criminal process (internment) in armed conflicts to be lawful? This short article tries to bring  some of the scholarly debates surrounding these issues in the current conflict in Northern Ethiopia. The article will first start by making the case for the application of IHL by classifying the conflict.

  • Is there an armed conflict for the purpose of IHL and if so, what is the applicable law?

Under IHL, a conflict can either be an international armed conflict(IAC) where it involves use of force by two or more high contracting parties to the conflict or it can be a non-international armed conflict(NIAC)when it involves an armed force of a State and dissident armed forces or other organized armed groups or armed conflict between such organized groups themselves. The conflict in Tigray region is between the ENDF, Amhara Special forces and militias on the one hand, and dissident armed forces of the Tigray regional special force loyal to the TPLF, on the other.  These rules out the possibility of IAC at least for now. For a NIAC to exist the conflict must reach a certain level of intensity and the groups fighting the state armed forces must be well organized (seehere). Judging by the military engagements reported in the region for the past three weeks the number and caliber of weapons used by both parties, and the number of people fleeing the conflict; it is possible to infer that the conflict is in fact intense. The core of the TPLF forces, even before the conflict, were serving as a regional special force with a clear chain-of-command and territorial control. It is , therefore, possible to decipher they have sufficient level of organization. Hence, the conflict can be classified as NIAC. Since Ethiopia has ratified the Geneva Conventions and its protocols, the second protocol (APII) is also applicable in addition to common Article 3 of the Geneva convention (CA3) and Customary IHL to the current conflict.

  • Does IHL provide a sufficient legal basis for detentions in NIAC?

Detention is a common occurrence in armed conflicts. Accepting this reality, IHL extensively allows for and regulates detentions in IACs under GCIII and GCIV. When it comes to NIACs, however, there is no such express authorization in both treaty and customary IHL. This has sparked scholarly debates whether IHL provides sufficient legal basis to detain in NIACs. From the perspective of State armed forces, this issue is controversial where the detention took place in a NIAC taking place outside the territory of the state concerned (i.e. extra-territorial NIACs).( See, for example, Mačak pp13-18; Aughey& Sari, for arguments supporting  the view that IHL does provide for inherent authority to detain). However, when it comes to territorial NIACs, such legal basis could easily be found in domestic law. The ICRC supports this view, but such legal basis must be informed by the State’s human rights obligations and IHL (CA3 commentary, §763).

  • Does IHL give Non-State Armed Groups (NSAGs) sufficient legal basis to detain?

The issue of whether IHL provides sufficient legal basis for detention by NSAGs is a topic of much controversy, even in the case of territorial NIAC. Notable Scholars, agreeing that such inherent authority exists in IHL, argue that it extends to detention by armed groups. (see Clapham pp.6-12; Murray pp. 446-449; Heffes pp. 238-247, and Niyo pp.16-19). Their main argument is based on the principle of equality of belligerents which can be inferred from the wording of CA3 and Art.4, 5, 6 of APII. These obligations include the obligation to treat those detained humanely and judicial guarantees before sentencing which both sides are expected to comply with. Besides the principle of equality of belligerents, proponents also argue that prohibiting detention by NSAGs will create an incentive to kill combatants and fighters rather than detain, going against the very purpose of IHL. If IHL does not recognize and regulate the detention by NSAGs, it would leave a protective gap which will result in abuse of rights of detained persons. (For a summary of these arguments, see Heffes , pp.238-247).

However, this view has been challenged by other group of scholars who argue that there is no explicit provision that provides such inherent authority to detain for both parties in NIAC. They reject the argument that the wording of CA3 and 4, 5 & 6 APII provides implicit authority saying that it does not suggest authorization rather it merely suggests that IHL does not prohibit it. (see for example Laurence Hill-Cawthorne, pp.70-75; Hill-Cawthorne& Akande; Rona, pp.35-37). Hence, they argue the legal basis for detention by NSAGs should be searched for elsewhere like in domestic law or human rights law. In addition to these, scholars in general, oppose the existence of such authority for NSAGs in fear that it would legitimize the latter either legally or politically (See Rona, pp.38-39). The ICRC, in both controversial situations of extra-territorial NIACs and detention authority by NSAGs, seems to agree with the first group of scholars at first sight stating that both treaty and customary IHL provide inherent power to detain which may constitute a legal basis to detain, with the caveat that such legal basis must be bolstered with additional authority regarding grounds and procedures of detention.(CA3 commentary, §765).

The author of this contribution agrees with the ICRC and the first group of scholars in that implicit legal basis for detention by the Tigrayan forces must be derived from IHL. The fact of the matter is IHL do foresee the detention by NSAGs. Recognizing this implicit authority will make it easier also to regulate the detention i.e. calling for humane treatment and judicial guarantees. This is so, as it is difficult to see NSAGs derive legal basis from domestic law of the state they are fighting with. Whether or not these forces are also bound by obligations coming from human rights law is a subject of further interest but that goes beyond the scope of this short piece.

Fekade Alemayhu Abebe is a PhD candidate at the Graduate Institute of International and Development Studies. The author can be reached at fekade.abebe@graduateinstitute.ch

AAU- IHL Clinic Tigray related

Observations on the ongoing confrontation in northern Ethiopia from IHL perspective: Classification of the Situation in Focus

November/28/2020

Author: Fikire Tinsae Birhane

https://www.ft.com/content/b888c23a-45ed-4937-9154-3117cc23e202

Introduction

On November 4, 2020, security forces loyal to the TPLF, mainly the regional special forces, made a surprise attack at the Northern Command of the Ethiopian National Defense Force (ENDF). Many people are reportedly killed.

Sometime around midnight of the same day, Prime Minister Abiy announced that he had ordered the military to confront the attackers. The TPLF have admitted that the strike at the Northern Command was carried out in “anticipatory self-defense“. Prime Minister Abiy condemned the attack declaring that  “the last red line has been crossed” by the TPLF after months of alleged provocations.

As the military confrontations continue between the ENDF on the one hand and forces loyal to the TPLF on the other, there are a number of developments begging reflection from IHL’s perspective.

In this part of the post, based on current developments, I will try to show whether IHL is applicable to the confrontations.

Law Enforcement Operation or Conduct of Hostilities?

The Federal Government describes the ongoing situation as a “law enforcement action” against what it regards as an illegal TPFL junta (clique) responsible for grave human rights violations. The TPLF, however, describes it as a war (conduct of hostilities) aimed at subjugating Tigray. The material scope of IHL, i.e. situations in which it applies, is limited to conduct of hostilities. Thus, leaving aside the claims by each side, characterizing the situation on factual grounds is pivotal to determine whether IHL applies in this particular situation.

Ethiopia is a State party to the four Geneva Conventions of 1949 and their Additional Protocols of 1977. If the situation is to fall under the scope of IHL, according to these treaties, it should belong to one of the two classifications, international armed conflict (IAC) or non-international armed conflict (NIAC). This classification depends solely on the identity of the parties. Generally, confrontations between sovereign States against each other would be IAC while confrontations between governmental authorities and organized armed groups or between such groups within the territory of a State would be NIAC. As described in the introduction, the confrontation in northern Ethiopia is being conducted within the Ethiopian territory between the ENDF (representing the State and supported by special forces and militia from the Amhara region) and forces loyal to the TPLF, which administers the Tigray region of Ethiopia. This suggests that if the situation is one of a conduct of hostilities, its nature would be a NIAC.

The TPLF alleges that Eritrean forces are involved in the conflict on the side of ENDF. Many people assume that if this allegation is proven, it would internationalize the conflict. However, involvement of a foreign country on the side of the State, under invitation or consent from the later, would not affect classification of the conflict. This means that even if the allegation of involvement of Eritrean forces is true, the situation would still remain a NIAC.

To determine whether IHL of NIACs applies to the ongoing situation in Ethiopia there are two reference points in the law. These are Common Article 3 (CA3) of the Geneva Conventions and Article 1 of Additional Protocol 2 (APII). The latter, which sets more stringent requirements for its application, is meant to supplement the former. Hence, in situations where the conditions for its application are met, both will apply simultaneously. Hence, there would be no need to check the material applicability of IHL in reference to CA3. However, if the conditions for application of APII are not met, one should still go on to check whether IHL applies to the situation based on Common Article 3 (with the exclusion of APII), which provides for a lower threshold for its applicability.

Is APII Applicable to the Ongoing Confrontations?

Article 1 of APII determines the circumstances in which it applies. Starting with a negative definition that its application is limited to situations that are not covered by IHL of IACs as provided under Article 1 of API, it provides that APII applies to armed conflicts “…which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” As soon as the material conditions as defined in this Article are fulfilled, APII automatically applies. By dissecting the criteria laid down in this Article and analyzing the facts on the ground against each, one can determine whether APII (hence the whole body of IHL of NIACs) applies to the ongoing confrontations in Ethiopia. Accordingly, the situation can be determined to be conduct of hostilities rather than law enforcement operation.

  • The place of confrontations

The definition provides that APII applies to armed conflicts “which take place in the territory of a High Contracting Party”. Ethiopia is a high contracting party to APII, and the confrontation is taking place within its territory.

  • The parties confronting each other

One of the situations in which APII applies is a situation whereby armed forces of a State confront dissident armed forces. According to the ICRC commentary of the Article, this is a situation “where there is a rebellion by part of the government army or where the government’s armed forces fight against insurgents who are organized in armed groups”. In the ongoing confrontation in Ethiopia, the ENDF (State armed force of Ethiopia) is fighting the armed forces loyal to the TPLF (the dissident force fighting against the Federal government that represents the State).

  • The responsible command 

This criterion implies existence of some degree of organization of the dissident armed forces. According to the commentary on the provision, it means “an organization capable, on the one hand, of planning and carrying out sustained and concerted military operations, and on the other, of imposing discipline in the name of a de facto authority.” The ongoing situation reveals the fulfillment of this criterion as the dissident forces, which are composed of special forces of Tigray and fighters defecting from the northern command of the ENDF, are well organized. The TPLF, establishing command and control structure for the dissident forces, demonstrated a capacity to plan and carry out sustained and concerted military operations against the ENDF and to impose discipline in its name.

  • Control over a part of the territory

The article provides that the dissident armed forces must be able to exercise “such control over a part of [the High Contracting Party’s] territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”. It goes without saying that TPLF, as the administrator of the Tigray region, has control over this part of the territory of Ethiopia.

  • The sustained and concerted character of military operations

Fulfilment of this condition is what effectively determines control over a territory. According to the commentary, “sustained” is to mean that the operations are kept going or kept up continuously while “concerted” refers to military operations conceived and planned by organized armed groups. Since November 4 operations by both sides kept going as conceived and planned by each side.

  • Ability to implement the Protocol

According to this criterion, being under responsible command and in control of a part of the territory concerned, the dissident group must be in a position to implement the Protocol. This relates to existence of a minimum infrastructure required to apply the rules entrenched under APII at the disposal of the group. As an administrator of one of the ten federating units of Ethiopia for about 30 years now, it would be reasonable to conclude that the TPLF has ability to implement APII.

Conclusion

 As facts on the ground suggest that the ongoing confrontation between armed forces of the Federal government and the dissident forces of TPLF fulfill the conditions laid down under APII for its application. Accordingly, it can be concluded that the confrontations qualify as conduct of hostilities.

Fikire Tinsae Birhane
Lecturer of Laws and Human Rights, School of Law, Hawassa University.
Doctoral Student, Institute of International and Comparative Law in Africa, University of Pretoria.
Email address: ftinsae@gmail.com/fikire.birhane@graduateinstitute.ch