Ethiopia – Addis Ababa University International Humanitarian Law Clinic

November 16, 2023 AAU-IHL Clinic Conflict in Africa, Protected Objects, Rules of Warfare

Fighting near Lalibela: Overview of the Protection of Cultural Property from the Effects of Hostilities

Author: Fekade Abebe

The Church of Saint George – one of eleven rock-hewn monolithic churches in Lalibela

On 8 November 2023, news of a fighting between the Federal Army, the Ethiopian National Defence Force (ENDF), and dissident militias popularly known as Fano in the historic town of Lalibela – Ethiopia, caused concerns for the safety of the churches of the town, following reports of firing of heavy weapons in the vicinity of the churches. There are reports that the churches sustained some damage (see here and here).

Bete Medhane Alem – an Orthodox underground monolith rock-cut church – Lalibela, Ethiopia

The Lalibela rock-hewn churches comprise of 11 churches carved out of monolithic blocks of rocks. Their construction is credited to the 12^th century King, Lalibela, as ‘new Jerusalem’ as a site of pilgrimage and religious devotion. They are inscribed by United Nations Educational, Scientific and Cultural Organisation (UNESCO) as world heritage site in 1978. The Churches still hold a significant importance to believers of the Ethiopian Orthodox church and the cultural life of Ethiopians.

Unfortunately, this is not the first time an armed conflict threatened the churches. There had been a similar concern in 2021 during the conflict with the ENDF and Tigray Defence Forces when the fighting entered the town. Besides Lalibela, cultural properties in the Tigray region, notably the obelisks in Axum and the historic mosque of Al-Nejashi, were similarly threatened and partially damaged, in the case of the latter. This trend calls into question the obligation of parties to a conflict under International Humanitarian Law (IHL) towards the protection of cultural property in Ethiopia’s latest conflict. This post briefly covers the applicability of IHL rules of conduct of hostilities in protecting cultural property in the current conflict in the Amhara Regional State and the implications of their application.

Developments leading to the conflict in the Amhara Regional State started over disputes over the order Federal Government to disband the Region’s paramilitary special forces and disarm the militias popularly known as Fano, who fought alongside the ENDF in the conflict in Tigray. This move was part of the terms of the Cessation of Hostilities agreement (CoHA) between the Federal Government and the Tigray Peoples’ Liberation Front (TPLF) in Pretoria on 2 November 2022, from whose negotiation the Militias were excluded. Opposing the move to disband, a significant portion of the special forces defected and joined the Fano and mobilised against the Federal Government. Following months of such mobilisation, fighting broke out in early August 2023 in several towns of the Region including the capital, Bahir Dar, and Gonder.

The armed violence in the Amhara Regional State: Is there a non-international armed conflict (NIAC)?

Under IHL, for a conflict between state armed forces and armed groups or dissident forces to be considered a NIAC, it must reach a sufficient level of intensity, and the armed group or dissident group involved must exhibit a certain level of organisation (ICTY, The Prosecutor vs. Dusko Tadic, para. 70). While it is difficult to assess the fulfilment of these two requirements outright, the ICTY has forwarded indicative factors which help discern whether the intensity and organisation criteria are fulfilled. Accordingly, factors such as duration, number, and intensity of individual confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones are considered as indicative of the intensity of a conflict when considered as a whole. (ICTY, The Prosecutor vs. Ramush Haradinaj et.al, para.49). Similarly, factors such as the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of headquarters; the fact that the group controls a territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; the ability to plan, coordinate and carry out military operations, including troop movements and logistics; the ability to define a unified military strategy and use military tactics; and the ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords are considered as indicators of an armed group’s organisation for the purpose of IHL (Ibid, para.60). When the two thresholds are considered to have been fulfilled following an assessment based on the indicative factors, IHL of NIAC begins to apply to a situation of armed violence.

In the case of the current conflict in the Amhara Regional State, from the available information, it is possible to conclude that the conflict between the ENDF and the Fano meets the thresholds of NIAC. As documented by the Ethiopian Human Rights Commission (EHRC), fighting between the parties has been reported in the majority of the Region, testifying to the increased number of confrontations between the parties. (See also here and here) There have also been reports of the use of heavy weapons and drones by the ENDF, allegedly intending to target Fano fighters. Moreover, the number of Internally Displaced People (IDPs) has reportedly increased, with the EHRC reporting 3000 people being displaced from just one area of the Regional State. Moreover, the declaration of a state of emergency by the Federal Government could further suggest that situation is not of a generalised violence which a regular law enforcement operation could handle. These factors, taken together, indicate that the conflict has reached the necessary intensity threshold.

Meanwhile, the reports of the fighting also indicate that the armed group (Fano) holds the capacity to coordinate and carry out military operations, as evidenced by attacks on a prison in Bahir Dar, repeated military operations to capture the major cities in the Region and attacks on police stations with the alleged purpose to capture weapons and ammunitions. Moreover, the protractedness of the violence in the Region, since August, is a testament to the intensity of the conflict as well as the ability of the Fano to engage in sustained hostilities. These factors, taken together, indicate that the Fano militias might have the necessary organisation for the purpose of IHL. Therefore, it is possible to conclude that the conflict between the ENDF and the Fano is a NIAC. As a result, both the ENDF and the Fano are obliged to respect Common article 3 of the Geneva Conventions and customary IHL rules. They would also have to abide by Additional Protocol II (AP II) to the Geneva Conventions applicable in NIACs to which Ethiopia is a party. Nevertheless, as of writing, there is no clear information that prove that the Fano militia exercise territorial control, a material condition necessary to determine the applicability of the Protocol.

The Lalibela Churches and the IHL rules on the protection of cultural property in armed conflict

Ethiopia is a party to the Geneva Conventions as well as APII. Moreover, it is a party to the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict (Hague Convention) and its Protocol I but not a party to its Protocol II, adopted under the auspices of UNESCO to protect cultural property during armed conflicts. These instruments, taken together, provide the applicable rules protecting cultural property from the effects of hostilities during armed conflicts under IHL in the conflict in the Amhara region.

Art.16 of AP II prohibits parties to a conflict from any act of hostilities towards ‘historic monuments, works of art, or places of worship which constitute the cultural or spiritual heritage of peoples.’ It, moreover, prohibits using such property in support of military efforts. The types of monuments or works of art mentioned under Art.16 are defined as cultural property under Art.1(a) of the Hague Convention, as a movable or immovable property of great significance to the cultural heritage of every people, including, among other things, religious monuments or groups of buildings which form historical or archaeological interest. This post adopts this definition. Given their listing as a World Heritage site by UNESCO and the significance they carry for the believers of the Ethiopian Orthodox Church as places of pilgrimage and devotion as well as to the history of Ethiopia, it is safe to conclude that the Lalibela rock-hewn churches fall under the ambit of Art.16 as well as Art.1 of the Hague Convention.

Therefore, the prohibition established under Art.16 of APII extends to the rock-hewn churches of Lalibela in that they cannot be subject to attack as well as used for the military effort of a party to a conflict. However, the application of Art.16 is without prejudice to the provisions of the Hague Convention. The latter, on its part, obliges high contracting parties to respect cultural property situated in their territories by refraining from using ‘the property and its immediate surroundings’ for purposes which would likely expose it to destruction or damage during armed conflict (Art.4). Accordingly, the defence forces of a High Contracting Party must avoid placing their camps, bases or conducting their military operation or any other similar activities near such sites as this might put the cultural properties in danger of destruction or damage. Moreover, under Art. 4 (1), the High Contracting Parties must refrain from directing an attack against a cultural property. As provided under Art.19(1), these obligations apply to NIACs. Hence, the parties to the conflict in the Amhara Region must not direct an attack against the churches or the site where they sit.

However, the obligation to respect cultural property under the Hague Convention is not absolute. It can exceptionally be waived when required by imperative military necessity (Art.4(2)), though it does not specify the scope of this exception. This exception, though, should be seen as different from ‘military convenience’ and it presupposes that the party to a conflict must not have any other way of achieving the military objective sought. (O’Keefe, 2009, p.123) This is backed up by Art.6 of Protocol II of Convention. As Ethiopia is not a party to the latter, the obligation under art.6 will not be applicable as a matter of law. However, the inclusion of such provision shows the threshold of imperative military necessity must be higher than a mere ‘military convenience.’ To conclude this discussion, from the combined reading of the APII of the Geneva Conventions and Art.4 and Art.19 of the Hague Convention, it is possible to conclude that parties to a conflict in a NIAC are prohibited from directing attacks against a cultural property or using it to support the military effort in general unless such protection is waived for imperative military necessity.

A potential challenge against the conclusion above is regarding the applicability of APII to the current conflict. Due to the uncertainty regarding the territorial control of the Fano, it is doubtful whether APII applies as it requires the organized armed group to maintain some level of control over territory, as per Art.1(1) of the Protocol. However, the protection of cultural property is, nonetheless, a customary IHL rule in a NIAC (Customary IHL, Rule 38(a)). Therefore, both the ENDF and the Fano must take special care in their military operation to avoid damage to the churches in their operations around the area. Moreover, customary IHL also prohibits both parties from using the churches for purposes likely to expose them to destruction or damage, such as placing military bases or camps or, in general, carrying out military operations near the churches (Rule 38(b)). As in the Hague Convention, this prohibition can be waived in the case of imperative military necessity. In such a case, the parties would still be bound by their obligation towards civilian objects such as the principle of distinction (Customary IHL, Rule 7-10), proportionality (Rule 14) and precaution in attack (Rule 15-21) as well as not placing military objectives near such objects. (Rule 22-24)

Not complying with the obligation to respect cultural property under AP II, the Hague Convention, and customary IHL entails a war crime under the FDRE Criminal Code. It provides, under Art.270 (j), that whoever organizes, orders, or engages in the targeting, destruction, or removal of cultural property such as the Lalibela churches, as well as rendering them useless or uses them to support their military effort commits the war crime and is punishable with rigorous imprisonment from five years to twenty-five years or in more severe cases, including life imprisonment or the death penalty. This provision does not mention ‘imperative military necessity’ as an element of the crime. As such it invites a question of whether ‘imperative military necessity’ would serve as a defense for any one accused of war crime under this article or whether it can be read together with the provisions of APII, and the Hague Convention. These questions would be a fascinating topic to investigate in another contribution.

Conclusion

The reading of the relevant IHL rules on the protection of cultural property and the specialized rules in the UNESCO instruments clearly show there is a special protection granted for monuments of great significance such as those of Lalibela rock-hewn churches. However, their protection under these instruments is not absolute as they are subject to the ‘imperative military necessity’ exception. However, as such term is not clearly provided, it leaves it open to attempts by parties to circumvent it. Going forward, strengthening the protection of cultural property during armed conflicts in Ethiopia requires as a first step the adoption of Protocol II of the Hague Convention which provides a better legal framework of protection. It, among other things, limits the instances where ‘imperative military necessity’ exception could be invoked, provides a specific precautionary obligation on parties to a conflict and creates a system of ‘enhanced protection.’

Author’s Bio

Fekade Abebe is a PhD candidate in International Law at the Graduate Institute of International and Development Studies. He has an LL.M in International Humanitarian Law and Human Rights from the Geneva Academy of International Humanitarian Law and Human Rights, and an LL.M in Public International Law from Addis Ababa University, Ethiopia.

November 10, 2023November 10, 2023 AAU-IHL Clinic Migration and Displacement

The New Collateral: A New Hope for Migrants in Ethiopia

Author: Yoseph Genene – LLB, AAU

Everyone has the right to recognition everywhere as a person before the law. And this right is not subject to exceptions and is non-derogable even in times of crisis. Natural disasters, armed conflicts and other predicaments will result in humanitarian catastrophe. As we are currently observing countless crises destabilizing the world, numerous populations leave their homes looking for a safe place. More people than ever are fleeing their homes from conflict and disaster resulting in in more than 108.4 million worldwide displacement. In this process some manage to leave their country and enter into another country while others escape to a different place within a border.

The Ethiopian Refugee Proclamation Art 5, which integrated the definition under the OAU convention as well as the UN refugee convention defines refugees as those who have been forced to flee their country because of external aggression, occupation, foreign domination or events seriously disturbing public order and has well-founded persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group and most likely, they cannot return home or are afraid to do.

While, persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflicts, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border are called Internally Displaced Persons (IDPs). Globally, there are more than seventy one million IDPs which is roughly equivalent to the population of Thailand.

This blog post adopts IOM’s definition of migrants encompassing both refugees and IDPs, and which defines “Migrants”as an umbrella term, not defined under international law, reflecting the common lay understanding of a person who moves away from his or her pace of usual residence, whether within a country or across an international border, temporarily or permanently, and for a variety reasons.

Photo Credit: IOM 2023, available at https://sudan.iom.int/news/over-1000-daily-arrivals-sudan-ethiopia-iom-data

Grappling with the different challenges due to internal and regional complexities, Ethiopia is similarly affected by the situations of Migrants. Ethiopia is a host to more than 930,000 refugees and asylum seekers, which makes it the third largest refugee hosting nation in Africa. Migrants in Ethiopia face a multitude of challenges that include deprivation of adequate shelter, food and health services, lack of opportunities to rebuild their livelihoods, protection risks, wider security concerns. When individuals experience displacement, they frequently lose or leave their personal identity papers, marriage certificates, birth certificates, academic or professional records and certificates and face difficulties in accessing them or approaching authorities for replacements. Armed conflicts and natural disasters can also result in the destruction of official records and archives. Sub-groups of migrants, such as women, minorities, or indigenous communities, may encounter specific challenges, as their civil status or rights were not as extensively documented as those of other citizens even before displacement. In practical terms, individuals often need to prove their identity or legal status as a prerequisite for exercising rights or receiving entitlements. However, due to limited or no access to such documentation, migrants may confront arbitrary restrictions on their rights in displacement settings.

Local integration has been considered to serve as one durable solution for Migrants in such a situation by allowing them to settle in the host community. This process provides legal status, access to basic services, and opportunities for employment. Through local integration, Migrants become part of the host community, contributing to social cohesion and stability. This solution involves the recognition of legal status, enabling access to essential services such as education, healthcare, and employment. The goal is to facilitate the full inclusion and participation of refugees and IDPs in their new communities.

In this context, having an identification document (ID) is closely linked to legal recognition, access to services, employment opportunities, protection of rights, and social inclusion. The possession of a recognized ID is essential for individuals to access various rights and basic services within the host community, including education, healthcare, and employment. Having such a formal identification document serves as evidence of legal status, preventing arbitrary detention or deportation and promoting the full participation and inclusion of refugees or IDPs in their new communities.

Ethiopia, as a party to both the OAU convention and the UN refugee convention, and in accordance with the FDRE refugee proclamation, is obligated to provide administrative support, identity papers and travel documents to refugees. A step in fulfilling such an obligation is taken with the adoption of the recent National ID program by Ethiopian Digital Identification proclamation no.1284/2023.

With its motto “identity is the new collateral”, it marks a significant stride toward inclusivity by removing barriers of inclusion of citizens and non-citizens (legal residents) and making national IDs accessible to individuals who can provide any type of acceptable evidence including an appropriate witness/es that can attest on the individual’s behalf called ‘introducer’. Additionally, the FDRE Refugees and Returnees Service, National ID Program – Ethiopia, and the UN Refugee Agency Ethiopia Office, came together to sign a special agreement aiming to make it easier for refugees to access important services like healthcare, education, banking, and driving, among others. Moreover, the National ID program executive director announced the commitment to extend the program for IDPs as part of the inclusion program.

Potential concerns may arise with the stipulation of legal residency as a prerequisite for participation in the inclusion program. This requirement poses a potential threat to the program’s efficacy, given the possibility that Migrants may not establish residence in a specific location for the mandated minimum duration of three months, as stipulated by Article 175 of the Civil Code, as referenced in the National ID proclamation.

The other concern is regarding privacy and data protection concerns. The National ID proclamation contains important data protection and privacy provisions in its fourth section. By incorporating the principle of data minimization, right to rectification, the right to be forgotten and other fundamental privacy principles; the proclamation provides that any authentication process under the digital identification system shall be done with the consent of the registrant. The information collected can be collected, disclosed, published, and can be transferred to a third party by anyone or a law enforcement body only with the registrant consent. However, it can be disclosed for the relevant legal entity authorized by law or court order without the registrant consent. In this regard, a concern worth mentioning will be the handling of biometrics data that includes personal information of refugees. Particularly, refugees flee persecution and their persecutors might track them using the data as they are communities escaping unsafe conditions, there has to be a balance between centralization of data and the right to privacy. With the absence of a national data protection governance (Draft Data Protection proclamation is approved by the Council of Ministers and waiting for HPR`s decision to be legislated), there has to be sector based and case-by-case restrictions on the use of biometrics and personal data of the data subjects. This needs to be accompanied by robust technological and legal safeguards to protect the right to privacy of individuals, particularly refugees and IDPs. Considering the novelty of the program, it can be improved through practices and emerging developments.

The measure taken by the National ID does not suggest that migrants no longer need any form of assistance or support. Rather, it signifies that the needs of migrants are not distinct from those of the non-displaced population, which might still necessitate interventions by development and human rights actors. Enabling durable solutions necessitates different but collaborative efforts among various stakeholders including national and local authorities, as well as humanitarian and development entities. In the end, inclusive approach towards migrants with the possibility of a lasting resolution could ensure the attainment of long- term peace, stability, recovery and reconstruction in nations like Ethiopia.

Author’s Bio

Yoseph Genene – LLB, AAU. MA student of Peace and Security Studies at AAU, IPSS. CSO-Lab program Mentee at Civil Society Resource Center (CSRC). Interested in Human Rights, Migration, and Peace and Security Can be reached at geneneyoseph@gmail.com

May 7, 2021 AAU-IHL Clinic Tigray related

The War in Tigray: Investigating Violations of International Humanitarian Law

Author: Lea Mehari Redae

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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