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 12th century King, Lalibela, as ‘new Jerusalem’ as a site of pilgrimage and religious devotion. They are inscribed by United Nations Educational, Scientific and Cultural Organisation (UNESCO) as world heritage site in 1978. The Churches still hold a significant importance to believers of the Ethiopian Orthodox church and the cultural life of Ethiopians. 

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

Author’s Bio

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

AAU-IHL Clinic Uncategorized

Looking Back to Old Laws and Customs of War in Ethiopia: Establishing Groundwork for Further Research

Authors: Eyuel Zelalem and Michael Mengistu

Painting by:

Studying the history of existing laws helps in understanding its relationship with its subjects. When it comes to International Humanitarian Law (hereafter IHL), it is equally important to understand the laws and customs of war of the past to understand the contemporary normative rules of war. In this regard, there is a well-established research in the history of the laws and customs of warfare in Europe where the modern humanitarian laws emerged. Researches on traditional rules of warfare in some African States such as Somalia have also been carried out by the International Committee of the Red Cross. However, very little is known about old laws and customs of war in Ethiopia. This blogpost explores the Ethiopian experience to motivate readers to conduct further research on the issue. It does so by first discussing the laws and customs of war that existed in Europe and other civilizations that flourished in various parts of the world such as the Pacific Islands and Africa. 

Laws and customs of war in Europe, the Pacific Islands and Africa before the 19th century

Due to the recurrence of war and violence in ancient times, long before the development of modern international legal and institutional framework for IHL, societies had to come up with limitations on the conduct of war which is often called “cultural regulation of violence”. These self-imposed codes of conducts/limitations of war originate from cultures of the war-making societies.[1] When it comes to Europe, these limitations, having their roots from the codes of chivalry and rules of Christendom, were existent since ancient times.[2] For example, Western scholars in European medieval and classical period were concerned with defining what a just war (Jus ad bellum) was and developing the principles of just war which are still applicable to this day.  

In general, having a look at the development of the laws and customs of war in Europe point to three principles that contributed to its growth. First, the principle that a belligerent should be justified in applying force which is necessary for the realization of the purpose of war.[3] Second, the principle of humanity at work which says that all such kinds and degrees of violence which go beyond overpowering the opponent should not be permitted to a belligerent person.[4] Third and lastly, the principle of chivalry which arose in the Middle Ages and introduced a certain amount of fairness in offence and defense, protection of non-combatants from pillages, and a certain mutual respect.[5]

The origins of these principles, however, are not confined to Europe but were also evident as the customs of war of other ancient civilizations. Ancient civilizations such as the pacific societies had imposed limitations on the conduct of war that resembled the modern principles of IHL.[6] For example, the Fijian society used weapons as a means of attack only when “this was deemed necessary upon provocation”.[7] Similarly and interestingly, African tribes that lived in the present days of Ghana, Somalia, and the Sahel region had traditional customs of war that were almost similar to the rules of IHL under the Geneva conventions.[8] Were there similar laws and customs of war in Ethiopia?

Laws and customs of war in Ethiopia before the 20th century

Ethiopia is a party to the four Geneva Conventions on the laws and customs of war and the additional protocols to the Geneva Conventions. However, very little is known about the rules of war that used to exist in Ethiopia before the ratification of these Conventions in 1969. In order to understand the rules of war that existed in the country before the 20th century, we believe that researchers need to look at the history, governance systems, and laws – both customary and written – of the various civilizations that flourished in Ethiopia. Accordingly, the first document that should be studied to understand these laws and customs of war, we believe, is the Fetha Negest (Law of the Kings) since it served as the law of the courts of the Emperors of Ethiopia who had the final say in all matters including warfare and justice. 

The Fetha Negest says little on the rules of warfare. However, it tries to govern some aspects of war in a haphazard manner such as the treatment of captives of war. For example, it states: “At the beginning of creation, all men were free. But war and raids bring them to serve others, since the law of war is that conquest makes the conquered slaves of the conqueror”.[9] This reads as if the rules of war in the courts of Ethiopian emperors were opposed to the laws and customs of war that we have now. But can we reach conclusions about the old laws and customs of war in Ethiopia based on the Fetha Negest? Albeit the fact that the Fetha Negest incorporated such kinds of provisions, research show that customs of war that resembled contemporary normative rules of armed conflict existed in Ethiopia. For instance, Donald N. Levine wrote that during the Gondarine period (1632 – 1769 AD):

[The] Echage Bet [of the Ethiopian Orthodox Church] was reserved for the … monk who served as administrative head of the Church. […] The Echage Bet and the church compounds were considered sanctuaries and thus, in theory at least, were secure from plunderers. The Gondares and wealthy people from the country used these areas as a safety vault for their valuables.[10]

This customary understanding of the rules of war is in line with today’s customary international humanitarian law protection of religious buildings from military attack. In addition, according to Nega Ewnetie, some Emperors of Ethiopia even tried to reform the rule of the Fetha Negest that concerned captives of war in favor of humanitarian concerns. For instance, Emperor Tewodros II (1855-1868 AD) tried to abolish the practice of selling captives of war into slavery.[11] He also mentions that Emperor Tewodros’s court decisions over war related cases considered aspects that we have under normative IHL rules.[12] Moreover, if we turn to Western Ethiopia, we will find that  the Nuer of the Gambella region observed a rule of war that protected villages which are “home” to Nuers’ god of war, Wiw, from forceful eviction even if the dwellers of the villages were defeated in battle.[13]  As a result, there may have been a mix of modern and old understandings of the laws of warfare, at least in some parts of Ethiopia, before the ratification of the Geneva Conventions. Nevertheless, further research on this issue is needed to bring a clear understanding about the history of laws and customs of war in Ethiopia. In conclusion, various research show that there were laws and customs of war in Ethiopia before the 20th century. Some of these rules might not have been in line with today’s humanitarian law while other customs resembled contemporary armed conflict rules. However, thorough research has to be conducted in order to clearly understand the regulation of hostilities that used to exist in Ethiopia before the 20th century. 

[1] Michael Howard “Constraints on Warfare” in Michael Howard, George J. Andrepoulos, and Mark R. Shulman “The Laws of War; Constraints on Warfare in the Western World”, (1994), p.2.

[2] Id. p.1.

[3] Lassa Francis Oppenheim, International Law: A Treatise: War and Neutrality, Volume II, (1912), p. 226.

[4] See ibid.

[5] Id, p. 227. See also Robert C. Stacy “The Age of Chivalry” in Michael Howard, George J.Andrepoulos, and Mark R. Shulman “The Laws of War; Constraints on Warfare in the Western World”, (1994), pp. 34 – 36.

[6] International committee of the Red Cross, Under the Protection of the Palm: War of Dignity in the Pacific, (2009), p.9.

[7] Ibid p.14. 

[8] International committee of the Red Cross, African Values in War: A tool on Traditional Customs and IHL, <https://www.icrc.org/en/document/african-customs-tool-traditional-customs-and-ihl> last accessed on 28 July, 2021.

[9] A.L. Gardiner, “The Law of Slavery in Abyssinia”, Journal of Comparative Legislation and International Law, vol. 15 no. 4, (1933), p.196.

[10] Donald N. Levine, Wax and Gold: Tradition and Innovation in Ethiopian Culture, (1965), p. 41.

[11] Nega Ewnetie Mekonnen, “የዓለም አቀፍ የሰብአዊነት ሕግጋትና መርኆች በዳግማዊ አጼ ቴዎድሮስ የጦር ሜዳ ውሎዎችና ውሳኔዎች ውስጥየነበራቸው ቦታ”, Bahir Dar University Journal of Law, Vol. 6 No. 2, (2016), p.347.

[12] See ibid.

[13] Dereje Feyissa, “Customary Dispute Resolution Institutions: The Case of the Nuer of the Gambella Region” in Alula Pankhurst and Getachew Assefa “Grass-Roots Justice in Ethiopia”, <https://books.openedition.org/cfee/494>  last accessed on 27 July, 2021. 

Authors’ Bio

Eyuel Zelalem Abebe: Eyuel received his LL.B. from Addis Ababa University in 2018. He is now working as a Desk officer at the Coalition of Civil Society Organizations for Elections (CECOE).

Michael Mengistu Woldeyes: Michael received his LL.B. from Addis Ababa University in 2018. He is now studying for his master’s in human rights law at the University of Groningen.