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 – oforganization 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 andmight also shed some light onthe 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.
Marishet M. Hamza is a Ph.D. Student at the International Law Department, Graduate Institute of International and Development Studies, Genéve
Studying the history of existing laws helps in understanding its relationship with its subjects. When it comes to International Humanitarian Law (hereafter IHL), it is equally important to understand the laws and customs of war of the past to understand the contemporary normative rules of war. In this regard, there is a well-established research in the history of the laws and customs of warfare in Europe where the modern humanitarian laws emerged. Researches on traditional rules of warfare in some African States such as Somalia have also been carried out by the International Committee of the Red Cross. However, very little is known about old laws and customs of war in Ethiopia. This blogpost explores the Ethiopian experience to motivate readers to conduct further research on the issue. It does so by first discussing the laws and customs of war that existed in Europe and other civilizations that flourished in various parts of the world such as the Pacific Islands and Africa.
Laws and customs of war in Europe, the Pacific Islands and Africa before the 19th century
Due to the recurrence of war and violence in ancient times, long before the development of modern international legal and institutional framework for IHL, societies had to come up with limitations on the conduct of war which is often called “cultural regulation of violence”. These self-imposed codes of conducts/limitations of war originate from cultures of the war-making societies. When it comes to Europe, these limitations, having their roots from the codes of chivalry and rules of Christendom, were existent since ancient times. For example, Western scholars in European medieval and classical period were concerned with defining what a just war (Jus ad bellum) was and developing the principles of just war which are still applicable to this day.
In general, having a look at the development of the laws and customs of war in Europe point to three principles that contributed to its growth. First, the principle that a belligerent should be justified in applying force which is necessary for the realization of the purpose of war. Second, the principle of humanity at work which says that all such kinds and degrees of violence which go beyond overpowering the opponent should not be permitted to a belligerent person. Third and lastly, the principle of chivalry which arose in the Middle Ages and introduced a certain amount of fairness in offence and defense, protection of non-combatants from pillages, and a certain mutual respect.
The origins of these principles, however, are not confined to Europe but were also evident as the customs of war of other ancient civilizations. Ancient civilizations such as the pacific societies had imposed limitations on the conduct of war that resembled the modern principles of IHL. For example, the Fijian society used weapons as a means of attack only when “this was deemed necessary upon provocation”. Similarly and interestingly, African tribes that lived in the present days of Ghana, Somalia, and the Sahel region had traditional customs of war that were almost similar to the rules of IHL under the Geneva conventions. Were there similar laws and customs of war in Ethiopia?
Laws and customs of war in Ethiopia before the 20th century
Ethiopia is a party to the four Geneva Conventions on the laws and customs of war and the additional protocols to the Geneva Conventions. However, very little is known about the rules of war that used to exist in Ethiopia before the ratification of these Conventions in 1969. In order to understand the rules of war that existed in the country before the 20th century, we believe that researchers need to look at the history, governance systems, and laws – both customary and written – of the various civilizations that flourished in Ethiopia. Accordingly, the first document that should be studied to understand these laws and customs of war, we believe, is the Fetha Negest (Law of the Kings) since it served as the law of the courts of the Emperors of Ethiopia who had the final say in all matters including warfare and justice.
The Fetha Negest says little on the rules of warfare. However, it tries to govern some aspects of war in a haphazard manner such as the treatment of captives of war. For example, it states: “At the beginning of creation, all men were free. But war and raids bring them to serve others, since the law of war is that conquest makes the conquered slaves of the conqueror”. This reads as if the rules of war in the courts of Ethiopian emperors were opposed to the laws and customs of war that we have now. But can we reach conclusions about the old laws and customs of war in Ethiopia based on the Fetha Negest? Albeit the fact that the Fetha Negest incorporated such kinds of provisions, research show that customs of war that resembled contemporary normative rules of armed conflict existed in Ethiopia. For instance, Donald N. Levine wrote that during the Gondarine period (1632 – 1769 AD):
[The] Echage Bet [of the Ethiopian Orthodox Church] was reserved for the … monk who served as administrative head of the Church. […] The Echage Bet and the church compounds were considered sanctuaries and thus, in theory at least, were secure from plunderers. The Gondares and wealthy people from the country used these areas as a safety vault for their valuables.
This customary understanding of the rules of war is in line with today’s customary international humanitarian law protection of religious buildings from military attack. In addition, according to Nega Ewnetie, some Emperors of Ethiopia even tried to reform the rule of the Fetha Negest that concerned captives of war in favor of humanitarian concerns. For instance, Emperor Tewodros II (1855-1868 AD) tried to abolish the practice of selling captives of war into slavery. He also mentions that Emperor Tewodros’s court decisions over war related cases considered aspects that we have under normative IHL rules. Moreover, if we turn to Western Ethiopia, we will find that the Nuer of the Gambella region observed a rule of war that protected villages which are “home” to Nuers’ god of war, Wiw, from forceful eviction even if the dwellers of the villages were defeated in battle. As a result, there may have been a mix of modern and old understandings of the laws of warfare, at least in some parts of Ethiopia, before the ratification of the Geneva Conventions. Nevertheless, further research on this issue is needed to bring a clear understanding about the history of laws and customs of war in Ethiopia. In conclusion, various research show that there were laws and customs of war in Ethiopia before the 20th century. Some of these rules might not have been in line with today’s humanitarian law while other customs resembled contemporary armed conflict rules. However, thorough research has to be conducted in order to clearly understand the regulation of hostilities that used to exist in Ethiopia before the 20th century.
 Michael Howard “Constraints on Warfare” in Michael Howard, George J. Andrepoulos, and Mark R. Shulman “The Laws of War; Constraints on Warfare in the Western World”, (1994), p.2.
 Id, p. 227. See also Robert C. Stacy “The Age of Chivalry” in Michael Howard, George J.Andrepoulos, and Mark R. Shulman “The Laws of War; Constraints on Warfare in the Western World”, (1994), pp. 34 – 36.
 International committee of the Red Cross, Under the Protection of the Palm: War of Dignity in the Pacific, (2009), p.9.
Esteemed followers of Addis Ababa University IHL Clinic,
The clinic has organized a webinar on the “Role of the International Humanitarian Fact-Finding Commission in Ensuring Respect for International Humanitarian Law”. On this grand event, the President and First Vice-President of the International Humanitarian Fact-Finding Commission will be presenting. All interested are cordially invited to attend the program on the coming Friday afternoon at 4:30 PM Ethiopian time.
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.
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.
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.
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.
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;
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.
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.
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.
Ensure justice and accountability for rights violations and grant other relevant remedies including compensation.
Dunia Mekonnen Tegegn, Ethiopian Human Rights Lawyer and Gender Equality Advocate
Prior to her role as Human Rights Consultant on Ethiopia with the American Bar Association, and a Researcher on Privacy and Media Rights issues with Collaboration for International ICT policy for East and Southern Africa, Dunia worked as an Almami Cyllah Fellow with Amnesty International USA.
Before going to the United States, Dunia Worked as a Human Rights Officer in Addis Ababa in the Africa branch of the UN High Commissioner for Human Rights. She also worked as a Program Officer on Ending Violence against Women and Girls at UN Women and as an Alternative Care Expert with UNICEF. Dunia is a trained Humanitarian Law and Policy profession with PHAP (Geneva).
Dunia holds a Master of Laws in National Security from Georgetown University Law Center and a Master of Arts in Human Rights from Addis Ababa University. Dunia is the first Africa Fellow for Georgetown’s Women’s Law and Public Policy Program to earn a Master of Laws in National Security.
Memberships Dunia is a member of the Pan African Lawyers Union (PALU), the Ethiopian Bar Association, and the Ethiopian American Bar Association in Washington DC. She also served as a Legal Compliance Coordinator for Your Ethiopian Professionals Network and co-chaired the Africa Committee of the United Nations Association for the National Capital Area.
Esteemed followers of the Addis Ababa University IHL Clinic,
Canadian Red Cross, in partnership with the University of Ottawa, invites you to its IHL NOW 2021 lecture series taking place from May 31-June 4th.
The session starts out with an introductory lecture to IHL by Professor Marco Sassòli, well known by many of you and world renowned in this field.
It is followed by a career panel on where speakers will present on challenges in IHL in relation to the conflict in Ethiopia; the conflict in Yemen; the protection of the environment during armed conflict, and conflict-related sexual violence.
On Thursday, June 3rd, 8:00 PM evening Ethiopian time Daniel Mekonnen a Human rights lawyer and Lea Mehari the Founder of Addis Ababa University International Humanitarian Law Clinic will be presenting on the Tigray crisis in light of IHL.
Editor’s note: The following post is part of the Articles of War Symposium onBeth Van Schaack’s book,Imagining Justice for Syria. The symposium offers a platform for the contributing experts to carry the conversation on justice and accountability in Syria forward.
Despite the long-standing and widespread norm to the contrary, intentional attacks against medical facilities and their personnel in conflicts around the world have increased over the past decade. In Sudan, for example, the government army was accused of deliberately bombing hospitals—including one of the few remaining hospitals in rebel-held territory during the civil war—and schools. In Central African Republic, over 40 medical facilities operated by Médicines Sans Frontièrs (MSF) were intentionally attacked in 2017, and the attacks continued into the following year. Perhaps nowhere have attacks been more rampant than in Syria, where over the course of the ten-year conflict, at least 923 medical workers have been killed in at least 595 documented attacks on medical facilities. Such deliberate attacks contribute to the “humanitarian catastrophe” that Beth Van Schaack describes befalling Syria in her recent and powerful book, Imagining Justice for Syria.
These attacks pose major challenges to the operation of Humanitarian Notification Systems (HNSs), which were set up in various conflicts to share information with warring parties about the locations and movements of both humanitarian sites and workers. These systems are rooted in the assumption that the warring parties will use the information they receive to assist in complying with their duty not to attack humanitarians. We identify a number of challenges such deliberate targeting poses for HNSs—including issues concerning the systems’ purposes, list distribution, and vetting of humanitarian entities. Ultimately, we believe that improvement in the operation of HNSs is possible, but it will require collaborative engagement of humanitarians, international organizations, policymakers, and military leaders, as well as a willingness to re-examine long-held assumptions about how to safeguard humanitarians in times of war.
The Protection of Medical Facilities Under International Humanitarian Law
The protection of medical workers and their facilities is one of the oldest principles of the law of war. It dates back to the first Hague Regulations of 1899 and serves as a bedrock for modern international humanitarian law (IHL). Its purpose was then, as it is now, to protect field medics who care for the wounded and pose no immediate tactical threat. The immunity of medical workers also reflects the belief that medical care preserves dignity in death and suffering, regardless of which side a person fights on. Under modern law, it is a war crime to deliberately target or recklessly strike or attack medical workers and identifiable medical facilities in wartime.
Notwithstanding this clear-cut norm, as mentioned above, attacks on medical personnel and facilities have been rampant. Former U.N. Secretary-General Ban Ki-Moon decried the rising number of attacks in a U.N. Security Council meeting in May 2016. Speaking alongside him, former MSF President Joanne Liu fittingly referred to the situation as “an epidemic of attacks.”
There are differenttheories for why warring parties attack medical facilities and their personnel. Scholars have pointed to a broader wartime strategy of punishing civilians for their presumed political affiliations, dissuading medical workers and humanitarians from treating perceived enemies, ridding territory held by opposing forces of civilian infrastructure, or depriving civilians of the means to survive, thereby forcing them to flee or accept that party’s dominance.
Humanitarian Notification Systems
To help warring parties avoid striking medical facilities and their personnel, humanitarian notification systems emerged from military deconfliction processes to notify warring parties of humanitarian “locations, activities, movements, and personnel.” With use dating back to at least the early 2000s, HNSs are now deployed in various conflicts to provide warring parties with necessary data of medical facilities and their personnel, often in the form of GPS coordinates. Participation in the system is voluntary on the part of both warring parties and humanitarians, however, and critically, the systems do not guarantee humanitarian protection.
There are varying models of HNSs administered by different entities. The U.N.’s Office for the Coordination of Humanitarian Affairs (OCHA), for example, runs centralized humanitarian notification systems in both Yemen and Syria, collecting fixed location and movement coordinates from humanitarian entities and disseminating them to some participating parties. In Yemen, recipients include the Saudi-led coalition; in Syria, they include the United States, Turkey, and Russia (though Russia recently backed out of the system). Importantly, OCHA does not verify the site submissions—including whether or not a site is indeed humanitarian and therefore protected under IHL. Instead, vetting a site’s status is the responsibility of warring parties, who are responsible for their own IHL compliance.
Beyond OCHA, several other entities also run HNSs. These include States, which rely on national humanitarian agencies to collect location data from humanitarian sites and disseminate it to the armed forces of that State, as well as often allied States operating in the area. Humanitarian groups such as the International Committee for the Red Cross (ICRC) and MSF also operate their own HNSs. In these ad-hoc systems, the ICRC and MSF work directly with warring groups in areas where they operate. The ICRC and MSF notify the warring groups of their humanitarian activities with a view towards ensuring protection. These systems often involve face-to-face meetings and can include non-State actors.
The Challenges Posed to Humanitarian Notification Systems
The increase in deliberate attacks against medical facilities over the past decade presents significant challenges to HNSs. HNSs are only as effective as the warring parties’ willingness to comply with IHL. Without compliance, HNSs are ineffective at best; at worst, they provide target lists for parties intent on attacking medical sites and personnel. This phenomenon demands a full understanding of the challenges posed by the rise in intentional attacks. We have identified a non-exhaustive list of these challenges below and grouped them into three categories: definition of purpose, list distribution, and humanitarian entity vetting.
Problem Area One: What Are the Purposes of an HNS?
The first set of challenges concerns whether the purpose of HNSs should change depending on a warring party’s (un)willingness to comply with IHL. In Syria, for example, the purpose of OCHA’s notification system as publicly stated is to “mitigate the risks, to the extent possible, of [humanitarian entities] being targeted / hit by an air strike.” But the persistence of strikes on humanitarian sites like hospitals—despite OCHA’s implementation of its HNS—highlights questions about the intended purpose. What functions should an HNS serve in the face of a warring party’s disregard for the law? And how could an HNS be redesigned to better advance those functions?
Protection of Humanitarian Entities?
A traditional view—reflected in OCHA’s system in Syria—is that HNS serves to enhance the protection of humanitarian entities. If this is the purpose, one possible change in HNS operation could be to exclude any party that intentionally targets medical facilities from access to the disseminated list. Or the exact location of humanitarian sites could be obscured in some way to protect them from attack. Other changes could involve using HNS information to discourage warring parties from attacking humanitarian sites by increasing the cost for such actions; for example, HNS information could be used to increase diplomatic pressure or exert public condemnation (“naming and shaming”).
Yet if warring factions repeatedly intentionally target humanitarian entities, it is far from clear how HNS can possibly hope to achieve the goal of protection, given that the legal obligation lies with the parties themselves. In such circumstances, HNS could prioritize accountability rather than protection as its purpose. Enhancing accountability would focus on data tracking and storage. This includes, for example, systematic tracking and storage of confirmation that warring parties received the coordinate lists of protected locations. Such evidence could be used to counter potential claims that a given attack was inadvertent. Admittedly, it is not clear what accountability would actually mean in this context of HNS. One view of accountability contemplates formal judicial proceedings, which would take place months, if not years, after the strikes occurred. Another view is that accountability could happen in real time in the form of naming and shaming.
We must also consider possible implications for humanitarian neutrality, a key principle requiring humanitarians to avoid favoring any side in an armed conflict. If an HNS were to be used to attribute a strike to a specific party, would this undermine the neutrality of the organization administering the list? Would humanitarian organizations be hesitant to participate in a notification system that could be used in a manner that calls out warring parties’ responsibility for IHL violations? And would warring parties refuse to participate in an HNS if they feared that it would be used in this way?
Problem Area Two: Who Gets the List?
The second set of challenges involves the distribution of protected location lists to warring parties if some are suspected of violations. Regardless of the purpose of an HNS, distribution to a party that subsequently intentionally targets hospitals can undermine the system’s functionality. Such distribution could sow distrust among humanitarians in the system. In worst case scenarios, it may lead to humanitarians opting out of the system altogether.
The first issue within this set of challenges is how non-compliance is defined. Is it only when a party commits intentional strikes against humanitarian entities? And if so, how would the intention of a warring party be determined? Must multiple strikes occur before a warring party is considered “non-compliant”? Could a party gain re-entry? These parameters would need to be worked out, likely by the list administrator, its participants, and/or an international body that could set guidelines for HNSs.
A closely connected issue is who decides whether a party is non-compliant. One option would entail leaving it in the hands of the list-controller, the entity that collects and disseminates the information. However, this option could impinge the list controller’s perceived or actual neutrality. This encroachment on neutrality—perceived or otherwise—risks sowing distrust among participants, causing some to decline participation. Instead, one could envision an independent review body in which a diverse set of experts receive evidence of strikes and make determinations of non-compliance. Another option would be to empower the humanitarians to make this decision themselves. If they receive reports that a particular entity is targeting hospitals, they could opt out of sending their coordinates to that specific entity. Perceived and actual biases, information access, and scope of mandates are relevant concerns with respect to all of these options.
A final, broader issue under this set of challenges connects back to the first problem area. If non-compliant members are removed from the system, does that contradict the very purpose of HNS?
Problem Area Three: Should Sites Be Vetted?
Under IHL, a humanitarian site is no longer protected when it is used to commit an act harmful to an enemy—such as serving as a weapons storage facility or a hideout for an armed group. Assertions that a humanitarian site is being used for hostile purposes is often presented as justification for attacks against it. Both Russia and Syria, for instance, have invoked this reasoning numerous times in response to allegations of war crimes.
To prevent misuse of humanitarian sites, and to refute false claims of such misuse, should list administrators vet humanitarian entities before including them in a notification system? Doing so could help refute false allegations, but it raises concerns because legal responsibility for IHL compliance—including confirmation a purportedly humanitarian entity is a legitimate target—is the responsibility of warring parties, not list administrators. Those involved in administering the lists, such as OCHA, might also credibly contend that they lack the resources and intelligence tools that would enable them to vet proposed humanitarian sites, much less conduct continual re-assessment as conditions on the battlefield change.
There are also concerns about the decision-making process. As with the issues raised in the previous problem area, what standards would be used to vet humanitarian entities? Who would decide whether or not an entity is in compliance? How frequently must these determinations be made, given the near-constant changing nature of conflict settings?
Next Steps: Addressing These Challenges
These challenges are serious but not insoluble. Addressing them will require creative, collaborative thinking, and willingness to rethink the design of HNS processes in situations where warring parties do not comply with IHL. Making progress will require bringing together stakeholders from different HNSs—including humanitarians, international organizations, policymakers, and military leaders—whose varying perspectives and interests can present solutions, along with buy-in to those solutions.
There is a cure to the epidemic of intentional attacks against healthcare facilities. But it will require collaboration and a willingness to question long-held assumptions about how to safeguard humanitarians in times of war.
Allen S. Weiner is Senior Lecturer in Law and Director of the Program in International and Comparative Law at Stanford Law School and serves as Director of the Stanford Center on International Conflict and Negotiation.
Bailey Ulbricht is a second-year law student at Stanford Law School, where she focuses on international humanitarian law, human rights law, and U.S. foreign policy.
The views expressed are those of the authors, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published.
The right to health was first articulated in the WHO Constitution (1946) which states that: “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being…”. The preamble of the Constitution defines health as: “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”.
The 1948 UDHR article 25 mentioned health as part of the right to an adequate standard of living. In 1966, years after passage of the UDHR, the UN proposed another treaty that includes health care: the Covenant on Economic, Social and Cultural and Rights (CESCR). Article 12 of the CESCR further clarified “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” “Health” in this context is understood as not just the right to be healthy and have health care, but as a right to control one’s own body, including reproduction. Article 12 goes on to require that “states must protect this right by ensuring that everyone within their jurisdiction has access to the underlying determinants of health, such as clean water, sanitation, food, nutrition, and housing, and through a comprehensive system of health care, which is available to everyone without discrimination, and economically accessible to all.” The right to health framework is set forth in general comment No. 14 of the Committee on Economic, Social and Cultural Rights, which interprets the right to health and mandates States to respect, protect and fulfill the right to health of everyone, including persons affected by and/or involved in conflicts.
Armed conflict is one of the circumstances in which health care delivery is most needed. Despite this fact, attacks on and interference with health care services, providers, facilities, transports, and patients in situations of armed conflict pose huge challenges to health care delivery.
In the world`s youngest nation South Sudan, not only hundreds of thousands of people have been effectively denied lifesaving assistance; but also, patients murdered in their beds in the town of Malakal, upper Nile state. A hospital in Leer, Unity state, was “thoroughly looted, burned and vandalized”. The MSF compound in Bentiu, capital of Unity state was also looted amid heavy fighting.
In the neighbor Ethiopia, in the recent situation in Tigray region, health facilities have been looted, vandalized, and destroyed in a deliberate and widespread attack on health care, ambulances have been seized by armed groups, and many health facilities have few or no remaining staff. Some have fled in fear; others no longer come to work because they have not been paid in months.
In Libya, on 18 February 2018, a woman in labor and her unborn child died on their way to the Wehda hospital, after armed men affiliated with the Libyan National Army at the Kirsa checkpoint, west of Derna, delayed their passage. Such acts are in breach of the obligation of parties to the conflict under IHL to ensure that adequate medical care is provided to the wounded and sick as far as practicable and with the least possible delay.
Also in Libya, in 2011 uprising discriminatory practices were frequently employed. Cars were stopped to prevent patients belonging to opposing ethnic groups reaching hospitals. IHL focuses on impartiality in responding to individuals in immediate need of care rather than on the structure and availability of services. IHL would forbid turning away a woman in labor based on her ethnic or political affiliation, it does not address entrenched practices that limit the availability, accessibility, and quality of facilities and services to members of her group and may make it dangerous for her to seek care. International Human Rights Law (IHRL) can assist in powerfully addressing these infringements.
The application of the general International Human Rights Law (IHRL) in an armed conflict is no more a debate. As settled by the ICJ, it will play a vital role protecting the right to health of individuals by complementing IHL which is the special law which applies in an armed conflict.
The right to health has been interpreted as consisting of key entitlements and state responsibilities, including the interrelated and essential elements of availability, accessibility, acceptability, and quality of health care services, facilities, and goods.
IHL remains a critically important set of rules through which to address obligations with respect to health in armed conflict, with IHRL acting as a powerful complement to it. In circumstances where no armed conflict exists, but where health workers, facilities, patients, and ambulances are subject to threats, attacks, and other forms of interference and denial, IHRL fills an important gap.
As IHRL has been contributing to ensure the interests and needs of the powerless and the vulnerable, also in time of armed conflict and in time where there`s a debate whether the situation is an armed conflict or law enforcement, the application of IHRL will address the powerlessness experienced by those seeking care and those trying to provide it, across all conflict settings.
Yoseph Genene is an undergraduate student at the School of Law, College of Law and Governance Studies, Addis Ababa University. He can be reached through the email address firstname.lastname@example.org or twitter @geneneyoseph
Organized by the International Committee of the Red Cross (ICRC) and Addis Ababa University, School of Law
March 10, 2021, Addis Ababa
Background and rationale
Armed conflict and internal disturbances – such as violent protests and riots – cause injuries among those directly participating and those who get caught in the way. Serious injuries require medical attention, yet it is precisely at these moments of greatest need that health-care services are most vulnerable to disruption, interference and attack. Violence, both actual and threatened, hugely impacts upon accessibility of health services, at times threatening the lives of those who need the services most. Violence against or in the vicinity of medical facilities may also cause health personnel to flee, leaving a big void in the much-needed health care services- affecting not just those who are wounded in the fighting but also those that suffer from chronic illnesses that require regular care and follow-up. It may damage health facilities or vehicles, as well as hamper vital preventive health care programmes such as vaccination campaigns, resulting in serious health implications in the long-run. The fight to eradicate polio, for example, has faced setbacks in countries like Afghanistan, Pakistan and the Democratic Republic of the Congo, where the safety of vaccination teams is difficult to assure. The health care system shall be respected and protected at all times and shall not be the object of attack.
Against the backdrop of the concerning humanitarian issue of violence against health-care and the urgent need for a continued focus on the matter, the International Red Cross and Red Crescent Movement launched in 2011 the Health Care in Danger (HCiD) Initiative. The initiative aims at addressing the issue of violence against patients, health workers, facilities and vehicles, thus ensuring safe access to and delivery of health care in armed conflict and other emergencies. The initiative also underscores that all reasonable measures should be taken to ensure safe and prompt access to health care for the wounded and sick, in times of armed conflict or other emergencies, in accordance with the applicable legal frameworks, where relevant and appropriate, to adopt and effectively implement the required domestic measures, including legislative, regulatory and practical ones, to ensure respect for their international legal obligations pertaining to the protection of the wounded and sick and health-care personnel, facilities, and medical transports, and the protection and use of the distinctive emblems by authorized medical personnel, facilities and transports.
The participants will be drawn from lecturers of IHL and related fields of law such as human rights, international criminal law, and if feasible, from the medical and public health schools. Senior students who are engaged in the activities of the IHL clinic and the Ethiopian Red Cross Society will also participate in the seminar. The total number of participants is expected to be around 20.
Date/Venue:The seminar will be conducted on the 10th of March 2021 at Addis Ababa University, Law school building, room 8.
Expected Outcomes:After the seminar, it is expected that participants will have a very good grasp of the challenges surrounding respect and protection of health care globally (and, to a limited extent, in Ethiopia). The seminar will also hopefully serve as a stepping-stone for the envisioned collaboration with the IHL clinic of Addis Ababa University, to conduct an HCiD legal and administrative set-up review for Ethiopia. Participants will also be provided with selected resources that can serve as references for those interested in pursuing the topic further.
Resources for the Workshop
Main reference document: “Protecting Health Care: Key Recommendations”, available here.