The Ethio-Sudanese Border Conflict in the Disputed ‘Al-Fashqa’ Territory: What are the International Law Issues at Stake?

By: Marishet Mohammed Hamza and Fikire Tinsae Birhane

Background

Ethiopia and Sudan share a long border that stretches over 1,600 Kms. While large part of the border remains un-demarcated, it is mostly undisputed. There are, however, pockets of disputed lands, including ‘Al-Fashqa’, which lies in the northern tip of the shared boundary. According to Sudan, Al-Fashqa was demarcated as part of its territory under the 1902 treaty between Ethiopia and colonial Britain, representing Sudan. For long, it is Ethiopian farmers that reside and farm in Al-Fashqa. Sudan explains the reason for this is the 1978 agreement in which it has agreed to leave the soft border open to Ethiopian farmers who would operate under Sudanese law and pay taxes to it, while Ethiopia recognizes Sudan’s sovereignty over the land. Ethiopia rejects such claims and has been asserting its full sovereignty instead.

Recently, following accusations of attacks in Al-Fashqa against Sudanese civilians by armed militiamen(which Sudan alleged were supported by Ethiopia), Sudan’s military crossed into the disputed territory, attacked the villages and took control of a large part of the territory. The attacks, according to Ethiopia, took place since the first week of November 2020. Besides, there are also reports indicating military confrontations between the defence forces of the two countries.

Sudan has confirmed it has ‘(re)taken control of most of Sudanese territory in the disputed border area which was under the Ethiopian farmers’. However, Ethiopia persistently accuses Sudan of intruding into, and carrying out organized attacks and forcefully taking control of its land. Sudan, on its part, accuses Ethiopia of supporting continued attacks by local militiamen and, also, violation of its airspace by an Ethiopian fighter-jet. Ethiopia rejects these claims too. The tensions have further escalated and, on 15 February 2021, Sudanese foreign ministry has accused Ethiopian forces of trespassing into Sudanese land ‘in an act of aggression’. Similarly, the Ethiopian foreign ministry condemned Sudan for its continued provocative behaviour, violation of boundary agreements, and called upon it to ‘reverse [its] aggression’.

Is the Use of Force by Sudan (un)lawful?

It is an established principle of international law that States shall refrain from the threat or use of force in their international relations ‘against the territorial integrity or political independence’ of other States(UN Charter, Article 2(4)). The only exception for this is the right to self-defence to repel an armed attack(UN Charter, Article 51). Thus, unless justified under the exception, the threat or use of force might constitute an armed attack, and violation of the UN Charter. Despite this proscription, States might still resort to the use of force; in which case a situation of armed conflict occurs and the propriety of resorting to force could become an international law issue.

The prohibition under Article 2(4) of the UN Charter equally applies to disputed territories (C. Yiallourides et al, 2018, p.). The obligation under Article 2(4) supplements Article 2(3) of the Charter, which requires States to settle their disputes through peaceful means. These obligations were reaffirmed in the 1970 UN General Assembly Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, which provides that States have a duty ‘to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States’ (Principle 1). The International Court of Justice (ICJ) has observed that the adoption by the majority of States of the Declaration ‘affords an indication of their opinio juris as to customary international law on the question’ (Nicaragua judgement, para.191). Accordingly, ‘under the UN Charter and customary international law, the resort to force is never an acceptable means of altering an existing territorial status quo, including in situations of disputed territories’ (C. Yiallourides et al: p. 90).

Turning to our case, Sudan has officially acknowledged its attacks in the disputed Al-Fashqa area and forcefully retaking the disputed territory. Manifestly, these acts constitute use of force as contemplated under international law. As the attacks have occurred against a territory which Ethiopia categorically and in strongest terms claims as part of its sovereign territory, arguably, the Sudanese acts could be regarded as attacks directed against the sovereignty and territorial integrity of Ethiopia.

Sudan has not yet justified its attacks and the forceful control of part of the disputed land under the self-defence exception. This could have invited assessment of whether its armed attack might be in tune with the UN Charter. Though there has not been such a claim, one should examine whether the alleged attacks (against Sudanese civilians and military) within the disputed land by the local (Ethiopian) militiamen could be regarded as an armed attack to which Sudan could invoke the right to self-defence.

The ICJ, in its Nicaragua judgement (para.195) has made it clear that the concept of ‘armed attack’ in the context of the right to self-defence is limited to ‘actions by states’. Regarding an armed attack by a non-state armed group (such as the local militiamen), it will constitute an armed attack if it could be proven that a State has ‘financed, armed and trained the armed group’ and sends it over a border to engage in use of force against another State (ibid). Similarly, International Law Commission’s (ILC) draft articles on responsibility of states for internationally wrongful acts provides for situations where a certain conduct can be attributed to a State, and thereby entail its international responsibility. As described above, Sudan acknowledged waging military attacks against the Ethiopian militiamen in Al-Fashqa and forcefully retaking most of the villages in the disputed territory. Accordingly, there is no question that this conduct is attributable to Sudan (Article 4, ILC Draft Articles).

However, even if Sudan’s claim that the (Ethiopian) militiamen had attacked Sudanese civilians prior to the Sudanese military attacks in the Al-Fashqa area is true, there still is a question whether the militiamen’s conduct can be attributed to Ethiopia. The relevant provision in the ILC draft articles provides that ‘the conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct’ (id, Art 8).

In addition, according to the ICJ, not all incidents by armed forces (including non-state armed groups) constitute armed attacks that entitle States to use counter-force in self-defence; rather, it has to be a ‘grave form of the use of force as distinguished from other less grave forms’ (Nicaragua judgement, para.191). Accordingly, even if it were possible to attribute the local militiamen’s attack to Ethiopia, for Sudan to invoke the right to self-defence, it has to be proven that the attacks were a ‘grave form of the use of force’. On top of that, as the incidents happened in a disputed territory, it has to also be established that the alleged militiamen attacks occurred against Sudan’s sovereign territory. The mere allegation that Ethiopian-militiamen had attacked Sudanese civilians may not suffice to consider the events as an armed attack against Sudan as a State.

In sum, ‘forcible means cannot be used to gain control over a disputed territory or to alter in any way the existing factual situation on the ground in the attacking State’s favour. Moreover, force cannot be used to correct retroactively situations of perceived past injustice on grounds of self-defence’ (C. Yiallourides et al: pp. 90-91). A State cannot also legitimately invoke a right of self-defence to gain control over a disputed area which is under the de facto control and administration of another State, on the basis of rectifying a situation of unlawful possession or generally correcting a ‘past injustice’ (C. Yiallourides et al: p. 77).

Is there an International Armed Conflict?

While resorting to war(armed attacks) in violation of the UN Charter prohibition on the use of force is a jus ad bellum question, the issue of whether there actually exists an international armed conflict (IAC) is a jus in bello question, which pertains to the applicable international humanitarian law (IHL) rules.

Both Ethiopia and Sudan are state parties to the four Geneva Conventions of 1949(GCs) and their two additional protocols of 1977. According to Common Article 2 to the GCs, the Conventions apply to ‘all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, … [and] to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance’. Additional Protocol I(API) applies to similar situations(Article 1(3)). Generally, according to IHL, two situations trigger an IAC: an armed conflict between two or more States (a declaration of war may also trigger the applicability (M. Sassòli, 2019, p.169)) and occupation of the territory of another State.

According to Sassòli, the existence of an IAC is a question of fact that exists ‘if someone attributable to a State commits acts of violence against persons or objects representing another State’ (ibid). To distinguish from acts which are unintentional or done mistakenly/in error, it is suggested that the act must be approved by the ‘highest authorities of the State’ (ibid).

Based on the above assessment, the Sudanese military’s organized armed attack in Al-Fashqa could be taken as a sufficient fact to prove the existence of an IAC between the two countries. Reports of military confrontation between the defence forces of the two countries further corroborate this.

Status of Al-Fashqa, is it an Occupied Territory?

While Sudan claims retaking control of a disputed territory, Ethiopia accuses Sudan of ‘occupying’ its land. Under the Hague Regulations (Article 42), ‘a territory is considered occupied when it is actually placed under the authority of the hostile army’. Conventionally, there are three fundamental criteria that will be used to establish whether a situation constitutes an occupation: effective control by one State of part or whole of the territory of another State, loss of effective control by the invaded State, and lack of consent by the State that lost control over territory. (M. Sassòli, 2019, pp.303-305).

Thus, control over territory constitutes an occupation, and obligations of an occupying force follows, where a State invades and took control of a territory that belongs to another State. In our case, Sudan claims it has retaken control of its own territory. Indeed, under the law of occupation, if a State ‘liberates its own territory that was previously occupied’ by an adversary and regains control, it would not constitute an occupation (ibid, p.313). Nonetheless, where sovereignty over a territory is disputed, the claim of retaking control over territory (like Sudan’s claim over Al-Fashqa) will not exclude the applicability of the law of occupation (ibid). In other words, though a State controls a territory it considers to be its own, it would still constitute an occupation, if sovereignty is contested by the adversary (E. Benvenisti, 2019, p.59; A. Roberts, 1984, 55 BYBIL 249, p.280).

In light of Ethiopia’s assertion of sovereignty over the territory, one could easily see that sovereignty over Al-Fashqa remains a disputed one, and, in that case, it is reasonable to conclude that Al-Fashqa can be considered an occupied territory to which IHL of occupation would be applicable.

Conclusion

In light of the UN Charter prohibition on the use of force, which equally applies to disputed territories like Al-Fashqa, Sudan’s forceful entry into Al-Fashqa and (re)taking control of territories that were under the de facto control and administration of Ethiopia makes its act unlawful under international law. Also, the undisputed armed attacks in Al-Fashqa and alleged military confrontation between the defence forces of the two countries along with the situation of occupation of Al-Fashqa establish existence of an IAC between Ethiopia and Sudan.

Authors Bio

1.Marishet Mohammed Hamza

PhD Student at the Graduate Institute of International and Development Studies, Genève

Email: marishetm@yahoo.com/ marishet.mohammed@graduateinstitute.ch

2. Fikire Tinsae Birhane

PhD Student at the Institute of International and Comparative Law in Africa, University of Pretoria;

Lecturer of Laws and Human Rights, School of Law, Hawassa University.

Email: ftinsae@gmail.com/ fikire.birhane@graduateinstitute.ch

http://www.icla.up.ac.za/doctoral-students/59-about-us/students/451-fikire-tinsae-birhane

Ensuring Respect for IHL by Kenya and Uganda in South Sudan

By:- Dr Kenneth Wyne Mutuma

Despite its domestication of all the major IHL treaties, South Sudan has, for some time now, been embroiled in conflict. First, it was involved in a Civil War to secede from Sudan and later on, there was the war between the government and different armed groups. These wars have resulted in gross human rights violations committed by the government as well as the armed groups. The warring parties in South Sudan have demonstrated an abrogation of the IHL obligations and thus, there is a pressing need to examine how the legal obligations of State Parties to IHL treaties can be better respected and enforced. CA1 is a distinct mechanism through which Kenya and Uganda can help in ensuring respect for IHL obligations by South Sudan. CA1 imposes positive obligations on State Parties mandating them to take some action to stop the violations of IHL. In this way, it uniquely places a duty, and not simply a right, to take action to ensure respect for IHL.

Kenya, Uganda and the Conflict in South Sudan

Both Kenya and Uganda are State Parties to the IHL treaties, just like South Sudan. They have ratified the Geneva Conventions and are accordingly bound by the obligations therein. The two have also enacted laws to punish certain international crimes; Kenya with its International Crimes Act 2008, and Uganda with its International Crimes Act 2010. The geographical position of Kenya and Uganda has significantly contributed to their successful strong economic relations with South Sudan. Both countries are major import partners for South Sudan.

On its part, Kenya has professed neutrality in the ongoing conflict in South Sudan. Nonetheless, Kenya has built close political and economic ties with the government of South Sudan; an interaction that may give rise to obligations incumbent on Third States, including those under CA1. On the other hand, Uganda has in the past participated as a party to the conflict in South Sudan by providing military support and facilitating the supply of military arms and equipment. The involvement of Uganda in the conflict gives it leverage in terms of the influence it can bring to bear the South Sudan government for purposes of CA1.  The unique relationship as a partner to a conflict provides an opportunity for Uganda to encourage respect for IHL by South Sudan.

In line with their obligations under CA1, Kenya and Uganda may explore some of the measures discussed below:

  1. Preventing South Sudanese From Profiting From IHL Violations

Kenya and Uganda have been strategic partners with South Sudan in economic relations owing to their geographical proximity. Consequently, Kenya and Uganda have been conduits of majority of the imports into South Sudan. These imports are mainly commercial goods, including arms and military hardware. Kenya has further been economically relating with South Sudan through its banking system and real estate sector. Since it has the most developed financial sector in the region, Kenya’s banking system serves as a center and conduit for the region’s financial transactions. Most of the South Sudan financial transactions are conducted through Kenyan owned banks. It has been alleged that South Sudan leaders use Kenyan banks for alleged illicit financial transactions. Moreover, the profitable real estate sector in Kenya has become convenient for South Sudan leaders trying to launder their proceeds of illicit wealth acquired during the armed conflict. The intimate socio-economic and political interaction between Kenyan, Ugandan and South Sudanese leaders provide ample leverage for employing forms of punitive trade measures in order to pressure South Sudan to comply with the obligations of IHL.For instance, Kenya can apply such pressure by freezing the funds and property that South Sudanese leaders have invested through Kenya’s banking and real estate industry.

  • Peace Building

Kenya and Uganda can fulfill their duty under CA1 by exerting meaningful diplomatic pressure upon the government of South Sudan. Given Kenya’s neutrality and past involvement as a mediator and peacebuilder, there is a plausible chance for exerting pressure upon the warring factions in South Sudan in line with their responsibilities to respect IHL. Uganda’s past participation as party to the conflict elevates its position to engage in discreet communication urging the South Sudanese government forces to refrain from IHL violations. The IHL mechanisms adopted by regional bodies like the East Africa Commission (EAC) and international organizations like the International Fact Finding Commission (IFFC) may also be embraced by Kenya and Uganda.

  • Preventing and Punishing War Crimes

The War Crimes in South Sudan amount to a contravention of jus cogens and thus, they attract concern from all States. Based on the principle of universal jurisdiction, Kenya and Uganda have the right to exercise jurisdiction over violations committed by individuals linked to the South Sudanese government. In as much as the victims are not their nationals, Kenya and Uganda have a legal interest in ensuring the protection of their rights. Pursuant to their duty under CA1, Kenya and Uganda ought to take measures to prevent and punish the war crimes. In doing so, impartiality must be guaranteed. The respective judiciary should be independent while adjudicating over the violations of IHL in South Sudan. Failure to do so would undermine the prerequisite for neutrality embedded in the rule of law and the central premise that international justice is aimed at seeking justice for the whole international community. The punishment of the South Sudanese perpetrators will act as a deterrent to future violations of IHL because it will portray the ideal of law with “teeth”.

  • Preventing Trade in Arms

Both Kenya and Uganda have served as channels for arms and ammunition flowing into South Sudan. Such support may arguably establish the necessary attributable nexus with IHL violations. Kenya and Uganda may therefore be indirectly responsible for the atrocities committed by the parties and can be construed as rendering aid to a party to a conflict. In this regard, the duty under CA1 is significant because it imposes positive obligations upon States like Kenya and Uganda. The provisions demand that Kenya and Uganda should undertake actions that ensure IHL is respected by the South Sudanese government and warring factions.

From the foregoing, it can be concluded that in as much as there is an adequate legal framework for IHL, there has still been numerous atrocities and violations as evidenced by South Sudan. Therefore, Third States like Kenya and Uganda play a significant role towards encouraging and promoting respect for IHL rules by South Sudan. The political and economic capacity and influence of Kenya and Uganda over South Sudan can help in achieving this. CA1 foresees a responsibility incumbent upon each State to take measures aimed at increasing the respect of IHL by warring parties.

Dr. Mutuma is a senior lecturer at the University of Nairobi, School of Law. Dr Mutuma holds a
PhD and LL.M degree from the University of Cape Town and an LL.B from the University of
Liverpool. He is also a partner at law firm in Nairobi and possesses 21 years’ experience in the
practice of law.

Kidnapping of Civilian Girls and Women by Non-State Armed Groups

Author: Helina Stiphanos

Image source: https://str8talkmagazine.com/index.php/2020/06/15/government-says-several-parties-involved-in-abduction-of-university-students/

About a year ago, 18 Amhara students of Dembi Dolo University were fleeing from the unrest in their University. While they were on their way to Gambela, the students were kidnapped in Wollega, Oromia region. One of them managed to escape and gave a testimony of the incident to the news outlet Addis Standard. The rest, most of whom are female, have disappeared without a trace. They have not been heard of since. On the anniversary of their disappearance, Helina discusses if kidnapping of civilian girls and women can be a violation of International Humanitarian Law.

Key Words: Kidnapping, Non-International Armed Conflicts, Non-State Armed Groups, Girls, Women.

Kidnapping of Civilian Girls and Women by Non-State Armed Groups

#BringBackOurGirls, a social media campaign started in Nigeria, was a result of an outrageous kidnapping of 276 girls from their school in Chibok. The girls were kidnapped by Boko Haram, a non-state armed group (NSAG), as a retaliation to the ‘nabbing’ of the wives and children of the group’s members by Nigerian authorities. This was, however, just the first step to the evolution of the group’s tactics towards instrumental use of girls and women in non-international armed conflicts (NIACs).[1] Shortly after the kidnapping in April 2014, a middle-aged woman became the first female bomber for the group. Since then, even girls as young as 7 years old have been used as suicide bombers. A 2018 UNICEF press release states that more than 1,000 children have been kidnapped by Boko Haram in north-eastern Nigeria between 2013 and 2017. Between January and August 2017, the use of children as ‘human bombs’ intensified with 83 children, 55 of whom were girls, having been used as such. Unfortunately, the kidnapping of the Chibok girls was neither the first nor the last of such acts, by Boko Haram and/or other NSAGs.

Kidnapping, IHLs Violation?

The regulation of NIACs relies on extremely limited legal instruments – Common Article 3 to the Geneva Conventions and Additional Protocol II[2] (APII) – and a strong Customary International Humanitarian Law contribution. Yet, none have defined kidnapping. Even the jurisprudence of multiple international courts and tribunals have disregarded this. In this blog post, kidnapping is defined as the forcible removal of civilian girls and women from their environment by NSAGs.

IHLs apply once a situation reaches an armed conflict which arises when elements of opposing armed forces are engaged in an attack.[3] Attacks are acts of violence against the adversary whether in offence or defence.[4] It is the use of armed forces to carry out a military operation at the beginning or during the course of armed conflict, a definition applicable in NIACs too.[5] Thus, kidnappings can constitute attacks as long as they are carried out by a party to an armed conflict in furtherance of a military operation or as one by itself, at the beginning or during the course of armed conflicts.

The applicability of IHLs to NSAGs is widely accepted.[6] Hence, they are required to respect the rights of civilians to be protected from being objects of attack.[7] The distinction of civilians and combatants/members of NSAGs is a pillar of IHLs.[8] This protection lasts for as long as civilians refrain from taking direct part in hostilities (DPH).[9] Accordingly, girls are protected by law, from being objects of kidnapping by virtue of their civilian status. School girls from Dapchi in Nigeria, most of whom were later released, were kidnapped by Boko Haram from their secondary school. However, there has not been any indication from any of the parties as to the involvement of any of the girls in the armed conflict nor of the fact that they were taking DPH.[10] Thus, the act is an outright breach of IHLs as it demonstrates the ignorance of such NSAGs towards their responsibility of sparing civilians from targeting.

In addition, act or threat of violence whose primary purpose is spreading terror amongst civilians is prohibited in NIACs.[11] Acts that constitute such violence include assault, rape, abuse and torture of women and children among others.[12] These acts are particularly reprehensible for they are frequent and inflict particularly cruel suffering upon the civilian population.[13] The phrase ‘acts or threats of violence…’ under article 13(2) of AP II was intentionally left to be illustrative.[14] There is no exhaustive list of acts amounting to acts or threats of violence providing a space for kidnapping to be included. Besides, the acts provided as an example under Henckaerts and Doswald-Beck’s Customary International Humanitarian Law share a peculiar feature with kidnapping, i.e. negative long-lasting effect on the lives of victims.

The suffering from kidnappings is particularly cruel as the young girls, even beyond the kidnapping, are subject to further harm while captives and face multiple difficulties when/if they return. In addition to forming part as one of the six grave violations committed against children, kidnapping is usually only the starting point to further violations of International Humanitarian Laws (IHLs). In 2014, Yezidi young women and girls as young as 12 were kidnapped by Islamic State (IS) fighters who sold, gave them as a gift or forced them to marry to IS fighter/supporters. Many of them were further subject to rape and other forms of sexual violence. These acts are very traumatizing to the extent that some have attempted to end their own lives. Moreover, survivors of rape and conflict time violence are subject to stigmatization, rejection, and abandonment, upon their return.[15] Hence, kidnapping can form part of an act or threat of violence.

Moreover, women and children are specially protected in armed conflicts. Women benefit from special protection which entitles them protection in the various situations they may find themselves in.[16] Children are also entitled to care and aid they require provision of education, reunification with their families, protection from participating in hostilities and being recruited to armed groups and be taken out of areas of hostility.[17] Furthermore, both girls and women can benefit from the protection against rape and other forms of sexual violence.[18] Kidnapping is contrary to these special protections. Often, it results in outrages upon personal dignity of girls and women manifested through physical and sexual violence, among others. It mostly results in the denial of education to girls who will be kept away from their families and are forced to ´grow´ much faster than they would in their normal environment. There are even times where they are forced to take part in hostilities in different capacities.

Conclusion

Kidnapping is a violation of IHLs. It takes away the multiple opportunities that girls and women can make use of in the real world, making them more susceptible to harm than they already are in an unequal world. Moreover, the subsequent dangers they face while being kidnapped threatens their fundamental and basic rights. In addition, the harmful effect of kidnapping is not only to the girls and their immediate families but also to the broader community and global peace and security in general. It is a threat to the advancement that has been witnessed on the rights of girls and women over the years and undermines the role that IHLs play in the protection of these civilians.


[1] Jacob Zenn and Elizabeth Pearson, ‘Women, Gender and the evolving tactics of Boko Haram’, (2014) 5(1), Journal of Terrorism Research, 46-57, p.47  

[2] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977

[3] A.P.V. Rogers, ‘Law on the Battlefield’, (3rd edn, Manchester University Press, 2012), p.3

[4] Art. 49(1), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977

[5] Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987, para.1882 and para.4783

[6] Daragh Murray, ‘How International Humanitarian Law Treaties Bind Non-State Armed Groups’, (2015) 20(1), Journal of Conflict and Security Law, 101-131, p.101

[7] id [n.2] art.13(2)

[8] Jean-Marie Henckaerts and Louise Doswald-Beck, ‘Customary International Humanitarian Law’, (Cambridge University Press, 2009), 1 Rule 1

[9] id [n.2] art.13(2); id Rule 6

[10] The author believes that neither combatants nor members of NSAGs should be subject to kidnapping, as well. But protection for them can be better argued on the ground of limited means and methods of warfare than distinction.

[11] id [n.2] art.13(2); id [n.8] Rule 2

[12] id [n.8] Rule 2

[13] id [n.5] para.4785

[14] id

[15] Hawkar Ibrahim, Verena Ertl, Claudia Catani, Azad Ali Ismail and Frank Neuner, ‘Trauma and perceived social rejection among Yazidi women and girls who survived enslavement and genocide’, (2018) 16(154), BMC Medicine, p.2

[16] id [n.8] Rule 134; Common Article 3(1)(c) provides for prohibition of outrage upon personal dignity, in particular humiliating and degrading treatment from which the protection of women can be inferred. 

[17] id [n.2] art.4(3); id [n.8] Rule 135

[18] id [n.8] Rule 93

Helina Stiphanos Teka is a research associate at the University of Münster. She has a Master of Laws in International Humanitarian Law from the University of Essex and Bachelor of Laws from Addis Ababa University. She can be reached at helinastiphanosteka@gmail.com

Artificial Intelligence in Warfare: How is it a contemporary challenge to the principle of distinction?

November/26/2020

Author: Yoseph Genene

Image source: https://thebulletin.org/2018/04/why-the-world-needs-to-regulate-autonomous-weapons-and-soon/

Have you ever wondered how YouTube videos are recommended for you or how the ads and suggestions relating to your previous activities on the internet like Facebook or any other social media platforms came from? Saving the data and privacy concerns for another time, the immediate answer we get for what’s behind all these is artificial intelligence algorithm. More than we care to admit, Artificial Intelligence (AI) is tremendously affecting our daily lives.

Humanity has always been fascinated about creating an artificial life. The concept of AI as some researchers argue dates back to ancient Greek mythologies. Hesiod`s Talos, the bronze man to be the warder of crete incorporate the idea of intelligent robot. Hesiod’s originally described Pandora as an artificial, evil woman built by Hephaestus and sent to Earth on the orders of Zeus to punish humans for discovering fire.

Oxford dictionaries define AI as a theory and development of computer systems able to perform tasks normally requiring human intelligence, such as visual perception, speech recognition, decision-making, and translation between languages. Humankind has a lot of experiences pulling in emerging technologies to military use; AI is no exception. IHL is not opposed to new technologies in warfare. Nonetheless, it requires that any new technology of warfare must be used, and must be capable of being used, in compliance with existing rules of IHL.

One of the fundamental principles of IHL which is the principle of distinction dictates that “the parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians”.

Combatants must also distinguish themselves (i.e., allow their enemies to identify them) from all other persons (civilians), who may not be attacked nor directly participate in the hostilities. 

The introduction of AI in armed conflicts has perceptibly brought challenges in IHL, especially to the principle of distinction. Such technological fifth generation warfare methods cannot discriminate between combatants and non-combatants or other immune actors such as service workers, retirees, combatants that are wounded, have surrendered, or are mentally ill in a way that would satisfy the principle of distinction. For example, in Pakistan an attempt to kill 41 men resulted in the deaths of an estimated 1,147 people. Also, in Yemen 17 named men were targeted multiple times but the strikes on them killed 273 people; at least seven of them are children. Both attacks were conducted by US drones. From 2004- 2014 the number of US drone strikes in Pakistan reached 400. Research by the Bureau of Investigative Journalism finds that fewer than 4% of the people killed have been identified by available records as named members of Al- Qaeda.

What jeopardizes the principle of distinction is that we do not have an adequate definition of a civilian that we can translate into computer code. The Geneva conventions do not provide a definition that could give a machine with the necessary information. Additional Protocol I defines a civilian in the negative sense as someone who is not a combatant. AI lack components required to ensure compliance with the principle of distinction. First, they do not have adequate sensory or vision processing systems for separating combatants from civilians. Even if the machines had adequate sensing mechanisms to detect the difference between civilians and uniform-wearing military, they would still be missing battlefield awareness or common sense reasoning to assist in discrimination decisions, as like article 44(3) of the Additional Protocol I of the Geneva Conventions acknowledges, “there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself.”

SKYNET, uses machine learning algorithm on the cellular network metadata of individuals to try and rate each person`s likelihood of being a terrorist. As most big data businesses, 0.0008% false positive rate seems very low. But, unlike other businesses its failure is not about unwanted YouTube recommendations or displaying an ad to the wrong person; here it is between life and death of a human being. Therefore, if we take 0.0008% of let’s say 60 million population its 48,000 innocent civilians that will be targeted. Accordingly, AI algorithm will consider them as a as threat and certainly they will be a victims of an attack.

IHL states that solely the presence of military or civilians direct participation in hostilities (DPH) among the civilian population does not deprive the population a protection from an attack. This requires the need for military commanders to issue context-based decisions. In addition, identifying hors de combat and combatants or civilians DPH surrendering also require a contextual analysis, and the ability to interpret human intentions. AI inherently lacks both capabilities, which are of a paramount importance according to IHL. 

The ideal solution for AI in warfare to comply with the principle of distinction would be full-fledged automatization of the battlefield in the foreseeable future. Thereupon, it will lead us to “bloodless fights” due to the exclusion of humans from the battlefield with combat predominantly conducted between AI guided machines.

When we come to the feasible measures to achieve the ultimate purpose of IHL which is to limit effects of armed conflict for humanitarian reasons, and particularly to exercise the principle of distinction in warfare we can suggest two recommendations. The first one will be arranging methods to team up human intelligence in interpreting machine languages inputs. Secondly, the international community should closely monitor conflicts that implement the use of AI in warfare so as to further prevent, halt and sanction actions of the perpetrators.

Yoseph Genene is an undergraduate student at the School of Law, College of Law and Governance Studies, Addis Ababa University. He can be reached through the email address geneneyoseph@gmail.com or twitter @geneneyoseph.

International Humanitarian Law – a legal framework to safeguard African States against the effects of hostile cyber operation

Authors: Dr. Tilman Rodenhauser, Thematic Legal Advisor, ICRC HQ

                 Raji Gezahegn, Legal Advisor, ICRC Delegation in Ethiopia

Image source: https://thinkrcg.com

   

Around the world, societies are digitizing. The African continent is no exception. In fact, it is a front runner in certain areas, such as mobile-money services. There are great opportunities in the digital transformation of societies, including for the delivery of health services, mobile banking, communication, educational resources, e-government services and new infrastructure projects. However, there are also risks that these services be disrupted through the malicious use of information and communication technology (ICT) by States and non-State actors. This risk is particularly acute for States with rather weak cyber security systems – according to the ITU 2018 Global Cyber security Index many African states are among them.

‘Cyber Security’ is a flagship project of the African Union’s Agenda 2063. Experts argue that African States should consider a range of measures from coordination and cyber capacity building at national, regional, and global level, to developing a robust international legal framework to protect States and their citizens from digital threats. In this post, we argue that cyber operations are increasingly being used in armed conflicts, African States should embrace the applicability of international humanitarian law in cyberspace as a safeguard against the harmful effects of hostile cyber operations conducted during on-going or future armed conflicts. While African States may not be involved in these conflicts, cyber operations – in particular unlawful indiscriminate attacks – risk spreading beyond the confines of one conflict affect African States incidentally.

The risk of human harm through cyber operations

Cyber operations pose a real risk of human harm. Cyber security experts warn against a ‘humanitarian crisis in the making’. This risk is particularly important when critical infrastructure is targeted through cyber operations. Attacks against medical infrastructure (seen around the globe during the COVID-19 pandemic, including in South Africa) or water and sanitation systems can affect the health and lives of citizens. Attacks against electricity providers (as witnessed in Johannesburg in 2017) or against mobile money systems can cause significant societal and economic disruption.

In a recent statement of the African Group in the United Nations Open-Ended Working Group on ICTs, 54 African States framed the threat as follows:

“A number of States are developing ICT capabilities that could be used for malicious and offensive military purposes. These technologies easily proliferate to non-state actors. All these developments coincide with increasing tensions at the international levels and a new arms-race. The risk of harmful ICTs attacks against critical infrastructure is both real and indeed very serious.”

This assessment corresponds with the International Committee of the Red Cross’ (ICRC) warning that with an increasing number of States developing military cyber capabilities, ‘the use of such capabilities is likely to increase’.

International humanitarian law as a protection framework in cyberspace

International humanitarian law (IHL) is the field of international law that applies during armed conflicts. Most IHL rules aim to protect civilians and civilian infrastructure against the effects of hostilities. Of course, in the Geneva Conventions of 1949 and their Additional Protocols of 1977 States defined these rules having in mind armed conflicts fought with conventional weapons – but the drafters had sufficient foresight to explicitly include rules making clear that IHL also applies to future weapons, means or methods of warfare (see article 36 Additional Protocol I). While some States have raised questions about the applicability of these rules to cyber operations, In 1996, the International  Court of justice stated that the established principles and rules of humanitarian law applicable in armed conflict apply ‘to all forms of warfare and to all kinds of weapons’, including ‘those of the future’. Undoubtedly, this includes cyber operations during armed conflicts. Similarly, the ICRC has long held the view that IHL ‘limits cyber operations during armed conflicts just as it limits the use of any other weapon, means and methods of warfare in an armed conflict, whether new or old’.

In the debate around the applicability of international law in cyberspace, legal experts and policy makers – including in Africa – may wonder whether IHL should be their priority. After all, in many States armed conflicts are fought with guns, not with laptops and malware. Are cyber operations not taking place at a ‘safe distance’ from African States?

In cyberspace, this approach would be dangerous. Because of the interconnected nature of cyberspace, attacks carried out against one State affects many others – wherever they are located and irrespective of whether they are involved in the conflict. For example, malware such as WannaCry or NotPetya infected computers in many countries at peace, first in Asia or Europe before spreading around the globe and also affecting African States. Having strong international rules applicable to cyber operations during armed conflict and insisting that IHL is respected should be a cyber security-concern for all States – for their own protection.  

IHL prohibits the development and use of malware that targets civilian objects (including what is sometimes called ‘critical civilian infrastructure’) or that spreads automatically and affects military and civilian targets without discrimination. Likewise, parties to conflicts are prohibited from carrying out an attack – including through cyber means – that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. These are but two examples of the rules that all States have an interest – and an obligation – to see respected.

The way forward: speaking law to power

In 2018, States established two United Nations processes on ICT security (the Open-Ended Working Group and a Group of Governmental Experts). In both processes, States are mandated to study the legal framework governing cyberspace. While States’ views diverge on questions such as whether a new treaty governing cyberspace is needed, especially those States that risk being intentionally targeted or becoming unintentionally affected by cyber operations should have a strong interest and obligation in stressing that existing rules of IHL apply and restrict cyber operations during armed conflicts. In 1977 already, States agreed that IHL cannot ‘be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations’. Indeed, IHL must not be regarded as undermining United Nations Charter but as an additional layer of protection for civilians and civilian infrastructure.

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Dr. Tilman Rodenhäuser is a legal adviser at the International Committee of the Red Cross (ICRC). The views expressed on this blog are his own and do not necessarily reflect those of the ICRC. Prior to joining the ICRC in 2016, Tilman has worked with the German Red Cross, the think-tank DCAF, the NGO Geneva Call, and the United Nations, with missions in Africa and the Middle East. Tilman holds a PhD from the Graduate Institute of International and Development Studies in Geneva and recently published the monograph Organizing Rebellion: Non-state armed groups under international humanitarian law, human rights law, and international criminal law(OUP, 2018). He has also published various articles in renowned international journals and received different awards for his work. He can be reached at trodenhauser@icrc.org”

Raji Gezahegn a legal adviser at the International Committee of the Red Cross (ICRC). The views expressed on this blog are his own and do not necessarily reflect those of the ICRC. Prior to joining ICRC, Raji worked as Lecture of Law for several years. Raji holds two graduate degrees in Public International  Law and International Human Rights Law from Addis Ababa University and University of Essex respectively. He can be reached at graji@icrc.org “

Cluster Munitions in South Sudan: Setting the Legal and Policy Framework to Humanitarian Ends

By Marco Chol, Legal Advisor, International Committee of the Red Cross at South Sudan Delegation in Juba

Photo Credit: U.S. Air Force

Cluster munitions release explosive submunitions: small, unguided explosives or bomblets that are designed to explode prior to, on or after impact. Theses bomblets disperse over a large area and often fail to ‘detonate as intended, lying on the ground for years, even decades, after the war has ended, waiting to kill or maim any man, woman or child who touches or steps on them’.

Recognizing the grave danger for civilians, States concluded the Convention on Cluster Munitions (CCM) in 2008. This year, 1 August 2020, marked the 10th anniversary of the CCMs entry into force. 

The CCM reinforces fundamental customary international humanitarian law (IHL) rules that require parties to armed conflict to distinguish at all times between civilians and combatants, to direct operations only against military objectives and to take constant care to spare civilians and civilian objects. On the basis of this Convention, cluster munitions are prohibited.

The CCM imposes international obligations upon States Parties to refrain from using, developing, producing, acquiring, stockpiling, retaining or transferring cluster munitions. It also prohibits assisting, encouraging or inducing anyone to undertake prohibited activities. States possessing or affected by cluster munitions must take action in specific areas: destroying stockpiles, clearing remnants of cluster munitions and providing assistance for victims. 

Cluster Munitions and South Sudan To Date

In the East and Horn of Africa, Djibouti, Kenya, Tanzania and Uganda have signed the CCM, but only two States, Rwanda and Somalia, are party to it. Since its independence in 2011, the Republic of South Sudan has expressed its interest to join the Convention. In 2017, based on a proposal put forward by the Ministry of Justice, the South Sudan Council of Ministers passed the CCM’s accession instrument. In addition to this step the constitution requires approval of the parliament and assent of the President for the country to become party to a treaty. These steps were not completed following the Council of Ministers’ decision so the treaty and its critical provisions do not yet bind South Sudan.

Despite the fact that South Sudan is not yet a party to CCM, it has participated as an observer in meetings of the Convention, most recently in September 2018, when it reaffirmed that it has not used, produced, or stockpiled cluster munitions. In April 2020, South Sudan submitted its first Article 7 Report of the Convention on Cluster Munitions – a voluntarily report on measures taken in respect of cluster munitions. This records the nature and types of munitions in the country, the extent of programs to remove or destroy them, the extent of educational programs to prevent harm and, importantly, measures undertaken to clear areas contaminated by such weapons. Amongst other things, the report noted that South Sudan had made ‘progress in cluster munitions clearance [between] 2011 [and] 2019[:] 18,101,789 square metres of land has been cleared from cluster munitions contamination and 3, 270, 629 square metres of land reduced through non-technical survey methodology’. It explains that ‘12,481-cluster munition and 1,549’ unexploded ordinances were destroyed in the reporting period. Despite these achievements, the report also recognizes the need for further action with ongoing international support, particularly from 2020 to 2027, in several key domains, including clearance, risk reduction and assistance to victims.  

Setting the Legal and Policy Framework to Humanitarian Ends

Positive voluntary steps relating to the CCM by South Sudan suggest that the will is there in South Sudan to be bound by this treaty. Decisive action is needed by the executive and legislature to complete the process to bringing the Cluster Munitions Convention into its law, and strengthening international humanitarian law in South Sudan. 

Appropriate local legislation and definition of a medium-term policies will definitively transform South Sudan consistent commitment into a tangible framework that can continue to move forward clearance, risk education and assistance to victims. It will enable the State to receive international cooperation and assistance for clearance, stockpile destruction, victim assistance and risk education, as well as economic and social recovery of affected State Parties; and benefit from the experience and expertise of other states and engaged actors’ through participation and contributions to the Meeting of States Parties.   

From 23 – 27 November 2020, Switzerland will host the second Review Conference of the CCM. The Conference will adopt a new Action Plan to guide the Convention’s implementation for the next five years, including to increase the number of States Parties. In the lead-up to the Conference, States that have not done so already are encouraged to consider the benefits of expressing their intention to be bound by this fundamentally humanitarian treaty.  This is the right time for South Sudan to act and demonstrate its commitment to the Cluster Munitions Convention. 

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Marco Chol is a South Sudanese lawyer, working as legal advisor at the International Committee of the Red Cross at South Sudan delegation in Juba. He is a holder of a Bachelor of Laws, a specialized Post-Graduate Diploma in Human Rights and IHL from the University of Khartoum, a master’s in international Humanitarian Affairs from the University of York, UK. He can be reached at cmarco@icrc.org

Soil Contamination Due to Armed Conflicts

By – Rihana Jemal

Photo Credit: DI LAURO, Marco. Copyright: Getty Images/CICR

Since time immemorial, most of us heard about armed conflicts or been a part of it. It’s undeniable that the effect of armed conflict is often beyond measure. One can easily state that the impact of armed conflict on the environment is so damaging and history is good evidence.

Oftentimes, the causes of soil contamination result from dangerous chemicals that find their way into the soil and disrupt the soil structure.[1] The atomic bombs dropped in Hiroshima and Nagasaki brought about a massive scale of soil contamination. The radioactive soil has become extremely infertile while the agricultural products that didn’t burn up during the bombing could no longer be consumed due to the massive radiation they contained.[2] Soil contamination often has an immediate and long-lasting effect. A recent short video titled ‘Landmine Girls’ showing the clearing of unexploded bombs left from the Vietnam War[3], shows the reality of the long lasting effects of soil contamination.

As the survival of human beings relies on food, soil contamination due to armed conflict may result in the lack of food security/or food insecurity. Especially if it’s a country like Ethiopia whereby most of the populations livelihood depends on agriculture the consequences may be drastic. The issue of soil contamination extends well beyond food security. Taking into account what has been stated above, the overall effect can be diminish agricultural product, affect the land system and health of the people leaving at or aside that area.  

Evidently, the lands of seventy-eight countries in the world are contaminated by land mines, which kill or maim 15,000- 20,000 people every year.[4] Even the developed world as an example, there are still thousands of tons of unexploded Bombs in Germany, left over from World War II.[5] Since most weapons contain harmful chemicals, the existence of landmines and unexploded bombs on or under the ground for years has a huge impact in soil contamination. 

Coming to the protection accorded in international humanitarian law, Article 35(3) of Additional Protocol I prohibits the use of  “methods or means of warfare which are intended, or maybe expected to cause, widespread, long-term and severe damage to the natural environment’’.[6] The prohibition has also been included in Article 55(1) of the Additional Protocol I.[7] The prohibition on inflicting widespread, long- term and severe damage to the natural environment is repeated in the Guidelines on the Protection of the Environment in Times of Armed Conflict and the UN Secretary-General’s Bulletin on the Observance by United Nations Forces of International Humanitarian Law.[8]

As stated in the Geneva Conventions and Additional Protocols, one of the fundamental principles is the principle of distinction and proportionality. In times of armed conflict, civilian and combatants need to be distinguished. Nevertheless, the result soil contamination due to armed conflict through unexploded bombs and buried landmines mostly affects the civilian population during the war and even decades after. The principle of proportionality is another principle affected similarly. Due to armed conflicts, the soil in different parts of the world has been contaminated whereby millions innocent people and generations to come have been affected. These beg the questions, Is taking measures that affect the upcoming generation really proportional? To what extent is the principle of distinction and proportionality being applied in reality? 

As the aforementioned questions linger in our minds and so long as armed conflicts continue being frequent, there need to be a serious consideration of the issue and impact of soil contamination. Further evaluation needs to be made before and after armed conflicts to ensure the well being of the soil. The ICRC is also mandated in ensuring that military personnel are aware of their obligation to respect and protect the environment during armed conflict.[9] Even though, armed conflict plays a huge role for soil contamination the issue of soil contamination lacks enough consideration. ICRC’s involvement isn’t enough as this contamination is an environmental issue that concerns all; the international community also needs to play its role. Regarding this issue, especially in Africa, there is no sufficient amount of literature and research.

Clearing leftover landmines and unexploded bombs to solve the issue of soil contamination is a dangerous job. The need for safe and efficient technologies for detecting buried landmines and unexploded ordnance is a humanitarian issue of immense global proportions.[10] Last but not least it’s important to point out what Charles E. Kellogg, a celebrated soil scientist, said “Essentially, all life depends upon the soil…There can be no life without soil and no soil without life; they have evolved together.” Indeed, the issue of soil contamination is the issue of life.  


[1] . Susan PattersinMaster Gardener, Contaminated Soil Treatment- How To Clean Contaminated Soils. April/5/2018.

[2].  https://www.ukessays.com/essays/environmental-studies/long-term-environmental-impacts-of-the-manhattan-project.php?vref=1

[3] .https://youtu.be/6l0pgpszmkU

[4] . UNICEF. “Children and Landmines: A Deadly Legacy”.

[5] . Adam HigginbothamThere are still thousands of Tons of unexploded bomb in Germany, left over from World War II.SMITHSONIAN MAGAZINE, JANUARY 2016. 

[6] . Additional Protocol I, Article 35(3).

[7] . Additional Protocol I, Article 55(1).

[8] . Guidelines on the Protection of the Environment in Times of Armed Conflict; UN Secretary General’s Bulletin, Section 6.3.

[9] . ICRC;  Environment and international humanitarian law, 29-10- 2010.

[10]The Hebrew University of Jerusalem. “Glowing bacteria detect buried landmines: Researchers remotely detect buried landmines, using fluorescent bacteria encased in polymeric beads, illuminated by a laser- based scanning system.’’ ScienceDaily.  ScienceDaily, 11 April 2017.

Rihana Jemal Mohammed is an undergraduate student at the School of Law, College of Law and Governance Studies, Addis Ababa University.  She can be reached through the email address rihanajemal29@yahoo.com

(Re)visiting the Relationship Between International Humanitarian Law and the Crime of Aggression

By Emmanuel Maphosa

Photo Credit: Tom Stoddart Copyright: Getty Images/ICRC

Africa is in the process of making modifications on the definition of the crime of aggression, with possible implications on the scope of international humanitarian law (IHL) application. The application of IHL could soon be considered without going through the traditional classification criteria in non-international armed conflicts (NIACs) with regard to the crime of aggression in Africa.

The prospects of modifying the definition to qualify attacks by non-state actors as acts of aggression is a departure from a static and outdated approach to aggression. This is also an attempt to prevent an otherwise conduct of hostilities level of violence going unchecked for a considerable period.

The crime of aggression together with genocide, war crimes and crimes against humanity can be viewed as core international crimes in the public international law arena. One notable difference in those crimes is that the crime of aggression unlike the others is in the ius ad bellum (the law regarding resort to armed conflict) category. The others are in the ius in bello (the law governing conduct during the armed conflict) category.

At least from the Nuremberg Tribunal, attempts have been made to define and determine the scope of application of the crime of aggression. States have been identified as sole actors in the commission of the crime. Further, the crime is out of the ambit of IHL because ius ad bellum considerations are irrelevant in the interpretation or application of IHL. Therefore, the crime of aggression by itself is not a violation of IHL. It is the conduct after the crime has been committed that may amount to violations of the rules governing the conduct of hostilities. An act of aggression creates room for the commission of the other crimes.

The foregoing shows that an interconnectedness exists between the crime of aggression and other crimes. The connection is visible when an act of aggression results in an international armed conflict (IAC). On the other hand, the chain does not hold in NIACs. The evolution of armed conflicts and the desire of States in Africa, to find sustainable and tailored made solutions indicate that it will be naïve to maintain the traditional approach to the crime of aggression. In fact, Africa’s approach to the crime of aggression may serve as one of the African solutions to African problems.

Should the Protocol on the Amendments to the Protocol of the African Court of Justice and Human Rights (Malabo Protocol) come into force in its present form, or at least on the part on the crime of aggression, a mere invasion or attack by a non-state actor would qualify as an act of aggression. This progressive interpretation and development of international law demands a revisit on the relationship between IHL and the crime of aggression.  

Globally, the direct forms of aggression are committed by States and the indirect forms of aggression include inter alia, terrorist attacks and material support such as ideas, money and arms to a State committing an act of aggression. The defect of this view is that it excludes those providing material support as parties to a conflict. The view also fails to address the issue of whether the cross-border element of terrorist and insurgency acts qualify as acts of aggression. From the African perspective, terrorism and material could soon be considered as direct forms of aggression. In this regard, IHL would be activated early.

Material support may precede a violent attack or territorial invasion. Further, an act of aggression may occur within an ongoing armed conflict. This means IHL would once again be called upon to address the complexity caused by additional parties. Hence, IHL cannot afford to detach itself from acts of aggression. IHL should make some adjustments to keep up with the changing battlefield.

This article comes against the backdrop of violent and ῾terrorist᾿ attacks by non-state actors in various parts of Africa. For example, such attacks emerged in Mozambique in October 2017. The government classified them as violence against public order that required a law enforcement dimension response. Words such as ῾terrorism᾿ and ῾insurgency᾿ have been associated with the said situation. These are ῾transnational crimes᾿ which have actual or potential transboundary effects.

The violence in Mozambique has caught the attention of the Southern African Development Community (SADC) governments. On 17 August 2020, the 40th SADC Summit of the Heads of State and Government committed to support the government of Mozambique in combating terrorism and violent attacks. While the classification of the conflict in Mozambique is beyond the scope of this article, it is worth considering whether IHL may in future be applicable earlier than expected in such situations. Reports that the Islamic State of Iraq and other foreign actors are actively involved in Northern Mozambique, ignite debate on whether acts of aggression exist in light of the modifications mentioned earlier.

How IHL responds to these ῾new wars᾿ is of essence. Acts of terrorism have caught the international eye, albeit with no link to the crime of aggression. At present, these acts are prosecutable before an international court if they amount to war crimes and crimes against humanity. This demonstrates that at some stage the acts trigger the application of IHL.

The challenge for IHL is that States and other international players are hesitant to activate its application where non-state actors are involved in attacks until the duration and intensity of attacks has reached a certain level. The Malabo Protocol on the other hand, presupposes the existence of an armed conflict from the onset under certain circumstances and a situation in which IHL would be activated automatically like in cases of IACs.

Arguably, an early qualification of a NIAC would be beneficial to non-state actors who would otherwise be deprived of protections accorded by IHL to those who are fighting. Likewise, civilians would enjoy without much delay the protections associated with the status of a civilian during armed conflicts.

Author’s Bio – Emmanuel Maphosa works for the International Committee of the Red Cross Regional Delegation for Southern Africa in Pretoria as a Program Adviser to the Armed and Security Forces Department. He is a holder of a Bachelor of Law Degree (LLB) from the University of Fort Hare and a Masters of Law Degree (LLM) with Specialization in Human Rights and Constitutional Practice from the University of Pretoria.

Stumbling Blocks in Striking a Treaty Governing Cyber Warfare under International Humanitarian Law

By Yohannes Eneyew Ayalew

Picture credit : Brookings

Cyber warfare begun to draw the attention of the international legal community in the late 1990s. The United States Naval War College convened the first major legal conference on the subject in 1999. The world has witnessed how cyber operations by “hackers” were executed  against Estonia in 2007— and—against Georgia during its war with the Russian Federation in 2008( See here ,and here). Cyber operations have targeted the Iranian nuclear facilities with the Stuxnet worm in 2010. The other notable cyber operation called “NotPetya” occurred in Ukraine in 2017.

In today’s armed conflicts, cyber operations are being used as a means or method of warfare. Some States have gone as far as publicly acknowledging their use (for example: France position in 2019), and an increasing number of States are developing military cyber capabilities for offensive or/and defensive purposes.

Despite these developments a comprehensive treaty governing cyber warfare is yet to be tabled. At this juncture it is relevant to recall that international humanitarian law (IHL) treaties have often been accused of being  ‘one war behind reality’ potentially contributing to the suffering caused by warfare. The aim of this blog post is therefore to shed some light on how States respond to the threats of cyber operations under IHL and unpack stumbling blocks in striking a comprehensive cyber warfare treaty.

Defining Cyber Warfare

Defining cyber warfare is an elusive exercise since any definition has to take into consideration national contexts. For instance: the 2016 United States War Manual defines cyber warfare may be understood to be operations that involve “[t]he employment of cyberspace capabilities where the primary purpose is to achieve objectives in or through cyberspace.” It includes those operations that use computers to disrupt, deny, degrade, or destroy information resident in computers and computer networks, or the computers and networks themselves. For example, it may include reconnaissance (e.g., mapping a network), seizure of supporting positions (e.g., securing access to key network systems or nodes), and pre-emplacement of capabilities or weapons (e.g., implanting cyber access tools or malicious code) (See US War Manual p.986). But this definition doesn’t specify the modus operandi whether such operations could be launched during international armed conflicts (IAC) or non-international armed conflicts (NIAC).

For Richard Clarke, cyber warfare refers to “actions bya nation-state to penetrate another nation’s computers or networks for the purposes of causing damage or disruption.” Yet, this definition only embraces cyber wars during IAC not NIACs. A more nuanced sort of definition was provided in the 2019 ICRC Position Paper which reads:

“Cyber operations during armed conflicts is used to describe operations against a computer, a computer system or network, or another connected device, through a data stream, when used as means and methods of warfare in the context of an armed conflict.”

Conundrums in Applying the Existing IHL norms to cyber-warfare

The analogous application of IHL rules applicable to conventional means and methods of warfare to cyber warfare is questioned by some observers. In this regard, Michael Schmitt argues that there is no legal doubt that cyber operations launched during an armed conflict having nexus to that conflict must comply with IHL rules.

The existing IHL norms offer some guidance concerning obligations of States concerning the use of new technologies for warfare. Accordingly, when States study, acquire or adopt new means and methods of war (e.g. cyber operations); they need to assess the legality of their employment under the existing norms of IHL (see Article 36 of Additional Protocol I (AP I) to the 1949 Geneva Conventions). In 1996, the International Court of Justice (ICJ) set a compelling precedent in its advisory opinion on the legality of the threat of use of nuclear weapons (para 86). The Court held:

“…the established principles and rules of IHL applicable in armed conflict apply to all forms of warfare and to all kinds of weapons, including ‘those of the future…”

Likewise, the ICRC’s position paper (2019) further asserted the applicability of the existing IHL norms to cyber warfare. In the ICRC’s view, “there is no question that cyber operations during armed conflicts are regulated by IHL – just like any other weapon or means or methods of warfare used by a belligerent in a conflict, whether new or old.”

Given the unprecedented proliferation of new means and methods of warfare including cyber operations, however, the existing body of IHL should be overhauled to respond to growing concerns seen in cyberspace. This is because the existing body of IHL is not sufficiently crafted to address cyber warfare. In other words, with the exception of handful norms such as Article 36 AP I, there is no comprehensive treaty governing cyber warfare. To fill this normative gap, the International Group of Experts (IGE) proposed a very detailed soft law regarding the application of IHL in cyberspace called the Tallinn Manual 2.0.

Attempts towards a comprehensive treaty governing cyber warfare face numerous challenges. Unilateral declaration of States and international organisations regarding the application of the existing bodies of international(humanitarian) law to cyber operations may be a stumbling block in striking a separate treaty governing cyber warfare. For instance, the United States made its position clear that when a cyber operation constitutes an attack, then the law of war rules on conducting attacks must be applied to those cyber operations, and it must comply with the requirements of IHL such as distinction and proportionality. Simply put, IHL applies to cyber operations in war time, including the principles of precaution, humanity, military necessity, proportionality and distinction. (US War Manual 2016 p.1020). Other countries such as—Australia, France and the United Kingdom  have also  taken a similar stance.

Another challenge is the inevitable attitudinal and policy differences between major superpowers to strike cyber operations treaty. For instance, the United States has, for many years, been an opponent of creating an international treaty for cyber warfare. It has listed enforceability and accountability as two of its primary concerns. Many observers argue that America’s enduring hostility towards binding treaty is driven largely by its technological superiority in the realm of tactical cyber warfare ( See here and here). Instead, the United Stateshas suggested increasing national cyber-defence technology and increasing the cooperation between national law enforcement agencies.On the other hand, Russia has been an ardent supporter of an international treaty for cyber warfare. Beginning in 1998, Russia has been submitting requests to members of the United Nations to back its plan for a global cyber warfare treaty.

What’s next?

The use of cyber operations in an armed conflict poses a real risk of harm to civilians. For the protection of the civilian population and civilian infrastructure, it is critical to recognise that such operations do not occur in a legal vacuum. As such, until the international community negotiates and strikes a deal governing cyber operations, States should adhere to the existing bodies of IHL rules. I wish the adage “IHL treaties seen as one war behind reality” would be debunked in cyber context by negotiating and striking a treaty in advance. Finally, instead of making unilateral declarations, States should show a global commitment towards cyber operations—including striking a comprehensive international treaty governing the regime.

Author’s bio: Yohannes Eneyew Ayalew is a PhD Candidate at the Faculty of Law, Monash University, Melbourne, Australia. He can be reached on email: yohannes.ayalew@monash.edu or Twitter @yeayalew.