AAU-IHL Clinic Conflict in Africa, International Humanitarian Law

A Critical Case Study of the Eritrea–Ethiopia Claims Commission Decision on POWs: Implications for Non‑Signatory States and the Applicability of International Humanitarian Law

Author: Wakjira Tesfaye Beriso

Algerian President Abdelaziz Bouteflika (C) stands between Eritrean President Isayas Afewerki (L) and Ethiopian Prime Minister Meles Zenawi (R) after signing peace agreements in Algiers December 12, 2000

1.     The Ethio-Eritrean War – A brief background

The Ethio–Eritrean War  (1998–2000) emerged from a longstanding border dispute that dramatically intensified following Eritrea’s declaration of independence from Ethiopia in 1993. The dispute over the Badme region, which had simmered for decades as a consequence of colonial and postcolonial contestations over borders, natural resources, and national identity, ultimately served as the ignition point for hostilities, exposing a profound legal quandary: What happens when a newly formed state has not yet acceded to central treaties of international humanitarian law? In particular, was Eritrea, an entity that did not formally ratify the Geneva Conventions until August 14, 2000, bound to safeguard Ethiopian prisoners of war under those same Conventions prior to accession?

After gaining independence in 1993, Eritrea and Ethiopia experienced escalating tensions over the disputed Badme region. These tensions culminated in armed clashes in May 1998, leading to a full-scale war that lasted until June 2000. The conflict resulted in extensive casualties, economic disruption, and severe humanitarian consequences for both nations. In an effort to resolve the dispute, both countries signed the Algiers Agreement in December 2000, establishing the Eritrea-Ethiopia Boundary Commission (EEBC) to deliver a final and binding border delimitation. In April 2002, the EEBC awarded the disputed town of Badme to Eritrea. However, Ethiopia expressed deep dissatisfaction with this ruling and refused to implement the decision, maintaining control over Badme. This refusal led to a prolonged stalemate between the two nations.

2.     The place of International Humanitarian Law

Ethiopia, having signed and ratified the Geneva Conventions by 1949 and 1969 respectively, was unambiguously bound by these multilateral treaties, which provide a comprehensive legal framework regulating the conduct of hostilities and the treatment of persons who are not, or are no longer, participating in hostilities. In contrast, when Eritrea declared its independence in 1993, it did not automatically inherit these treaty obligations from Ethiopia. International law recognizes that newly independent states customarily signal their intent to adopt pre‑existing treaty commitments through formal declarations or legislative enactments. While many successor states continue to honor international treaties, this is not automatic. In the case of Eritrea, there is a notable absence of clear legislative or formal declarations indicating that it intended to adopt the Geneva Conventions immediately upon independence. The Eritrea–Ethiopia Claims Commission  explicitly observed a “dearth of substantiating evidence” that Eritrea had undertaken the customary process necessary to inherit these obligations. As the Commission observed:

“However, the Commission has not been shown evidence that would permit it to find that such circumstances here, desirable though such succession would be as a general matter.”

In this context, “such circumstances” refer to the lack of unequivocal statements from Eritrean authorities and the absence of consistent state practice that would indicate a clear intention to be bound by the Geneva Conventions. This absence of demonstrable consent renders any presumption of automatic succession legally unsustainable.

To fully understand Eritrea’s obligations during the conflict period, it is essential to examine the broader principle of continuity in humanitarian obligations under international law, particularly in the context of state succession, where shifts in sovereignty or government structures raise complex questions about treaty obligations. According to this principle, certain international obligations, especially those related to fundamental human rights and humanitarian norms, persist despite changes in state sovereignty. This continuity ensures that newly independent or successor states remain accountable for essential commitments that uphold human dignity and the rule of law within the international community.

While the Vienna Convention on Succession of States in Respect of Treaties adopts a permissive approach under Article 16, often referred to as the “clean slate” doctrine, this framework is increasingly challenged when it comes to humanitarian obligations. The “clean slate” doctrine allows newly independent states to decide which treaties they will adopt, potentially enabling them to reject critical human rights obligations inherited from their predecessors. However, this permissive approach conflicts with the evolving understanding in international law that certain humanitarian obligations, particularly those embedded in customary international law, remain binding regardless of succession.

In his article, “The Problem of State Succession and the Identity of States under International Law” Matthew Craven argues that the continuity of obligations cannot be assessed solely through the lens of consent-based treaty succession. Instead, it must be viewed through the prism of an emerging constitutionalization of international law, where certain values—notably the prohibition of torture and genocide—function as normative anchors that transcend state will. Craven’s argument highlights that humanitarian norms are increasingly perceived as structural principles essential to the integrity of the international legal order, rather than optional commitments dependent on state consent.

This perspective finds strong support in the International Court of Justice’s (ICJ) 2005 judgment in the case of Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda, where the Court observed:

“The principles underlying the prohibition of the use of force, the non-intervention principle, and the minimum standards of humanity form part of customary international law and constitute obligations erga omnes.”

The reference to “minimum standards of humanity” is particularly significant because it directly relates to the continuity of humanitarian obligations. These standards represent fundamental norms that persist irrespective of a state’s treaty commitments or changes in sovereignty. The erga omnes nature of such obligations means that they bind all states at all times, not because of treaty commitments, but because they are integral to the collective interests of the international community. Obligations erga omnes are distinct in that they protect global values, such as the prohibition of torture and inhumane treatment, which are considered essential for maintaining international order.

An Eritrean soldier at his post in Serha, Eritrea
Photo Credit: Associated Press

In the context of state succession, this implies that successor states cannot evade responsibilities concerning core humanitarian principles by simply rejecting predecessor treaties. Instead, these obligations remain continuous and binding, regardless of political transformations. This continuity is grounded in the universal values that these humanitarian norms protect—values that safeguard the integrity of the international legal order and ensure that fundamental human rights are upheld even in the face of sovereign transitions.

From the moment of independence, Eritrean leadership made it clear through official pronouncements and consistent state behavior that it would not be bound by the Geneva Conventions until a later accession occurred. In particular, Eritrea’s persistent denial of unrestricted access to the International Committee of the Red for the purpose of visiting Ethiopian prisoners of war serves as a concrete manifestation of its non‑acceptance of the treaty regime. While the ICRC was allowed limited access—to a small group of civilian detainees according to stringent procedures—broader access for inspecting POWs was consistently obstructed. These obstructions reflect both a deliberate policy of noncompliance with the treaty’s procedural requirements and a rejection of the substantive humanitarian obligations that the treaty is designed to enforce.

In its Partial Award on Prisoners of War, the EECC concluded that Eritrea’s systematic refusal to grant ICRC access to POWs from May 1998 until August 2000 violated customary international humanitarian law (IHL), despite its non-accession to the Geneva Conventions at the time (para.62).   The Commission’s findings, based on extensive fact-finding—including POW testimonies, Eritrean military directives, and diplomatic exchanges—revealed a deliberate and prolonged obstruction of humanitarian oversight (para. 55). Eritrea argued that the obligation to allow ICRC visits was a procedural rule tied solely to treaty law rather than a binding customary obligation (para. 56–58). However, the Commission firmly rejected this claim, affirming that external humanitarian access is an essential safeguard under customary international law and a fundamental protection against inhumane treatment (para. 59–61). It ruled that Eritrea violated its obligations under customary IHL from May 1998 to August 2000, as the denial of ICRC access deprived POWs of independent registration, monitoring, and relief (para. 62).

A central issue raised by these circumstances is whether, in the absence of formal accession, a state such as Eritrea may still be held accountable under customary international law. Customary IHL is a body of legal norms that derives its binding nature from consistent state practice accompanied by the recognition that such practices are obligatory (opinio juris). In the Ethio‑Eritrean conflict, even though Eritrea had not formally acceded to the Geneva Conventions, the core principles—such as the requirement to treat prisoners of war humanely—had already crystallized into customary international law.

The International Criminal Tribunal for the Former Yugoslavia further substantiated the binding nature of POW protections in Prosecutor v. Tadić, where the Appeals Chamber held that “certain fundamental humanitarian obligations are to be observed by all parties to an armed conflict, regardless of whether they have ratified the conventions that contain them.” The ICTY’s ruling in Furundžija similarly affirmed that the prohibition of torture and inhumane treatment is a peremptory norm (jus cogens) from which no derogation is permitted, binding states irrespective of treaty obligations.

 In Al-Skeini and Others v. the United Kingdom, the European Court of Human Rights addressed the extraterritorial application of the European Convention on Human Rights. The Court held that the United Kingdom exercised authority and control over individuals in Basrah, Iraq, during security operations, thereby establishing a jurisdictional link under Article 1 of the Convention. Specifically, in paragraph 149, the Court stated:

“In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention.”

From this decision, it can be established that control over individuals, particularly in conflict situations, constitutes a sufficient basis for activating fundamental humanitarian obligations, as the exercise of such control creates a legal relationship that imposes responsibilities recognized under customary international humanitarian law. In the case of Eritrea, its authority over Ethiopian prisoners of war during hostilities necessarily triggered obligations not contingent upon formal treaty commitments, specifically the duty to ensure humane treatment and to facilitate humanitarian oversight, thereby guaranteeing that essential humanitarian standards are maintained through the very nature of jurisdictional control.

The African Commission on Human and Peoples’ Rights (ACHPR) has ruled that incommunicado detention constitutes a severe human rights violation, facilitating further abuses such as torture and ill-treatment. In Communication No. 250/2002, the Commission stated that “the lack of external oversight in detention facilities constitutes an inherent violation of human dignity and is incompatible with international human rights and humanitarian standards.

Additionally, the ICRC’s Customary IHL Study, which codifies state practice, identifies Rule 124, stating that “the ICRC must be granted regular access to all persons deprived of their liberty in order to verify the conditions of their detention and to restore contacts between those persons and their families.” This obligation, the study finds, is “established as a rule of customary international law applicable in both international and non-international armed conflicts.”

Eritrea’s conduct during the war provides concrete evidence for this analysis. The repeated denial of full ICRC access to POWs is not merely a technical or administrative shortcoming; it signifies a broader repudiation of the international standards of humane treatment that the Geneva Conventions are designed to enforce. Such conduct, when viewed through the lens of customary IHL, clearly demonstrates that Eritrea’s actions violated universally binding humanitarian norms, even if formal treaty obligations were not in place at the time.

Permanent Court of Arbitration Eritrea-Ethiopia Claims Commission – The Hague, Netherlands, 2000

A contentious yet crucial aspect of the Eritrea–Ethiopia Claims Commission’s analysis is the role of military training in establishing state obligations under international humanitarian law. In paragraph 67 of the EECC’s Partial Award on Prisoners of War, the Commission noted that Eritrean troops and officers received “extensive instruction on both the fundamental requirements of the Geneva Conventions on the taking of POWs and on the policies and practices of the Eritrean People’s Liberation Front in its struggle against the previous Ethiopian government, the Derg.”

This acknowledgment raises an important question: can comprehensive military training in IHL indicate an implicit commitment to the humanitarian principles enshrined in the Geneva Conventions? On one hand, such training demonstrates Eritrea’s awareness of the conventions’ core principles, suggesting a de facto endorsement of international humanitarian norms. The investment in educating military personnel about these obligations could be interpreted as evidence of the state’s intention to adhere to those standards, even in the absence of formal accession.

However, while the extensive IHL training conducted by Eritrea certainly indicates an operational recognition of international norms, it falls short of constituting formal legal acceptance. Under international law, explicit consent is required for a state to be legally bound by treaty regimes. This consent typically manifests through legislative enactments, executive declarations, or formal treaty accession. Without such explicit actions, a state’s informal practice even those involving comprehensive training cannot substitute for formal acceptance. The EECC emphasized that despite Eritrea’s military training programs aligning with the Geneva Conventions, these efforts alone did not establish a legally binding obligation to comply with the conventions. Customary international law requires consistent state practice accompanied by opinio juris—the belief that such practice is legally required. In Eritrea’s case, while training demonstrated knowledge and operational alignment with humanitarian norms, it did not reflect the necessary belief or intent that these practices were legally binding obligations under international law.

Moreover, the distinction between operational practice and formal legal commitment is essential. Extensive IHL training can contribute to state practice, but without accompanying formal declarations, such practices remain aspirational rather than obligatory. This distinction underscores the principle that state conduct, no matter how aligned with international standards, must be accompanied by explicit consent mechanisms for treaty obligations to be legally enforceable. Consequently, Eritrea’s military training programs, although commendable in reflecting a certain humanitarian ethos, cannot by themselves transform informal practice into binding treaty obligations under the Geneva Conventions.

Eritrea’s subsequent accession on August 14, 2000, in conjunction with its extensive investment in IHL training, might indicate that its leadership tacitly endorsed humanitarian norms even during the conflict period. This is especially true in line with the description in paragraph 67 of the EECC Award and argues that such behavior reflects a de facto commitment that should mitigate the strict legal consequences of non‑accession. However, international law is clear that retrospective behavior, however positive, cannot be used to retroactively impose obligations for a period during which the state did not provide explicit consent. While Eritrea’s later actions may be interpreted as an attempt to align with international norms, they do not alter the legal reality of the conflict period.

2.1 The Binding Force of Customary International Humanitarian Law in State Succession

The broader implications of the Ethio‑Eritrean conflict for IHL are significant. This case exemplifies the dual system by which international law operates: formal treaty obligations among consenting states on one hand and universally binding customary norms on the other. Such a framework is essential in an era when not all states are willing or able to join multilateral treaties in full. The evolution of humanitarian norms from treaty provisions into customary law ensures that fundamental principles—such as the prohibition of inhumane treatment, the right of detainees to protection, and the oversight rights of humanitarian organizations—retain their binding force even in contexts where formal treaties are absent.

This case study also prompts to reevaluate the efficacy of international legal regimes in contemporary conflict scenarios. Non‑signatory states may attempt to evade the obligations of treaties by expressly rejecting formal accession, but the universal applicability of customary IHL provides a critical safety net. Even where political considerations lead a state to distance itself from formal treaty mechanisms, the underlying humanitarian imperatives remain enforceable through consistent state practice and the establishment of legal norms recognized by the international community. Consequently, the Ethio‑Eritrean War and the subsequent EECC decision underscore that the protection of human rights and human dignity in armed conflict cannot be nullified by a state’s non‑acceding status.

Moreover, these legal debates have significant policy implications. International bodies and NGOs have increasingly relied on the dual framework of treaty and customary law to hold states accountable for violations of humanitarian norms. In practice, the continued evolution of customary IHL is evident in the growing number of international tribunals and fact-finding missions that invoke these principles to secure redress for victims. As conflicts evolve and new actors—both state and non-state—emerge on the global stage, the interplay between formal treaty obligations and customary norms will continue to shape international responses to humanitarian crises.

Southern Debud Zone, Eritrea. UNMEE (United Nations Mission Ethiopia Eritrea) soldiers (blue helmets UN) patrol the border between Eritrea and Ethiopia. © 2002 Didier Ruef

2.2.Legal Consequences and Enforcement Mechanisms for Non-Compliance

From an enforcement standpoint, refusing to accede to key IHL treaties neither negates a state’s responsibility nor immunizes its officials from liability for grave breaches. Indeed, the ill-treatment of prisoners of war—recognized as a “grave breach” under the Geneva Conventions (e.g., Geneva Convention III, Arts. 129–130)—is subject to universal jurisdiction, obliging all states to prosecute or extradite alleged perpetrators. Complementing these domestic efforts, the Statute of the International Criminal Court (Arts. 5, 8, and 12–13) empowers the Court to investigate war crimes, crimes against humanity, and genocide, even absent direct state consent if the United Nations Security Council  refers the situation under Chapter VII of the UN Charter. This mechanism was illustrated by Resolutions 827 (1993) and 955 (1994), establishing the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), respectively—both of which held perpetrators criminally liable for egregious IHL violations, irrespective of treaty status. Regionally, the African Commission on Human and Peoples’ Rights, operating under the African Charter (Arts. 45–47), can open inquiries, adopt provisional measures, and coordinate with international mechanisms to address severe human rights abuses, thereby reinforcing that customary norms—particularly those reflecting jus cogens prohibitions like torture—must be observed by all states at all times.

What these complementary systems reveal is that the international legal order refuses to allow non-accession to function as a legal vacuum for atrocities. The duty to “respect and ensure respect” for IHL, enshrined in common Article 1 of the Geneva Conventions, imposes a collective obligation on all states to prevent and halt serious breaches. Thus, the rejection of formal treaty obligations offers no safe haven from IHL’s core prohibitions. In practice, however, these enforcement mechanisms neither operate in isolation nor function automatically. States exercising universal jurisdiction often face political or logistical hurdles in prosecuting foreign nationals for extraterritorial crimes, while the ICC relies on voluntary cooperation for arrests and surrenders.

Nonetheless, such barriers enhances the vital role of multilateral engagement and diplomatic pressure in promoting compliance. For instance, the African Commission’s investigative procedures—strengthened by non-governmental organizations and civil society—facilitate evidence gathering, foster dialogue on adherence, and channel critical information to international bodies. Over time, this interplay between domestic courts, regional institutions, and international tribunals dismantles the premise that non-accession to certain treaties can confer immunity. Instead, it highlights how robust legal frameworks enable the international community to impose meaningful consequences on states or individuals who commit grave breaches.

This article demonstrates that while explicit treaty commitments remain crucial for establishing detailed obligations among states, the fundamental humanitarian norms at the heart of International Humanitarian Law have attained a status that renders them binding on all nations—signatory or not.

Author – Wakjira Tesfaye Beriso

Wakjira Tesfaye Beriso is a former lecturer in law at the University of Gondar. He holds an LL.M. in International Humanitarian Law and Human Rights from the Geneva Academy and an LL.M. in Human Rights Law from the University of Gondar. Wakjira has extensive experience in human rights law, humanitarian law, and international advocacy.

wakjira111@gmail.com
AAU-IHL Clinic Conflict in Africa

Join the Directory of African Human Rights and Humanitarian Professionals!

The Addis Ababa University International Humanitarian Law Clinic (AAU IHL Clinic) is excited to announce the launch of the Directory of African Human Rights and Humanitarian Professionals.

At the AAU IHL Clinic, one of our key goals is to serve as a hub for humanitarians, human rights personnel, and others working in or on conflict-affected settings in Africa. This initiative aims to compile a comprehensive database of dedicated individuals working in the fields of human rights, humanitarian assistance, and International Humanitarian Law (IHL) across Africa.

Who Should Register?

We invite African academicians, human rights defenders, humanitarian workers, and other experts engaged in protecting civilians’ rights and promoting human rights, humanitarian law and peace in conflict-affected settings to join this directory. Whether you’re actively working on the ground, conducting research, teaching or advocating for policy changes, your expertise and experiences are invaluable.

Why Register?

  • Connect with Peers: Join a growing network of African professionals committed to the protection of civilians in conflict-affected settings.
  • Share Your Work: Showcase your contributions, projects, and achievements to a wider audience.
  • Collaborate and Grow: Discover opportunities for collaboration, networking, and professional growth.

How to Register:

To be included in the directory, please complete this registration form with your professional details. Your information will help build a comprehensive resource that supports knowledge-sharing and networking among professionals in the field.

We take privacy and confidentiality seriously. Please note that in the form, you can specify what information you wish to make public or keep confidential.

Thank You for Your Support!

We appreciate your participation in this important initiative and look forward to building a vibrant community of professionals working towards a continent safe for its people.

For inquiries, please contact us at ihlclinicaau@gmail.com.

AAU-IHL Clinic Conflict in Africa, Displacement, Migration and Displacement, Uncategorized

Call for Blog Posts: Forced Displacement and Armed Conflicts in Africa

Posting Date: 4 June 2024

Deadline For Submissions: Before or by 10th July 2024

From 2019 to 2023, Africa has continued to witness a significant rise in active armed conflicts and conflict events. This trend has been particularly pronounced in the Democratic Republic of the Congo (DRC), Ethiopia, Sudan, Nigeria, and the Sahel region (especially Burkina Faso, Niger and Mali), leading to increased spillover effects and heightened humanitarian concerns.[1] Presently, Africa is grappling with an alarming surge in forced displacement, with an estimated 40.4 million individuals, as of June 30 2023, including internally displaced persons, refugees, and asylum seekers.[2] The majority of forcibly displaced individuals originate from countries grappling with conflict, with 14 out of the top 15 nations generating such displacement are facing ongoing conflict[3].

Forced displacement in Africa remains a pressing issue, with millions of individuals displaced from their homes due to armed conflicts across the continent. This complex phenomenon not only underscores the devastating consequences of armed conflict but also highlights the intricate interplay between forced displacement and the perpetuation of conflict dynamics. While armed conflict often serves as a primary catalyst for displacement, it is equally important to recognize displacement as a trigger that can exacerbate existing conflicts and contribute to the emergence of new ones. 

The nexus of armed conflicts and forced displacement in Africa was further complicated by the impacts of the COVID-19 pandemic, which has exacerbated factors that drive conflicts and instability. In addition, climate change, recognized as a ‘threat multiplier,’ intensifies competition over scarce resources, contributing to escalating or prolonging conflicts. High rates of youth unemployment are associated with a greater risk of political violence and may drive young people toward violent extremism, subsequently leading to or worsening armed conflicts. Addressing these interconnected challenges is crucial for devising effective strategies to address both forced displacement and armed conflict in Africa. 

In connection with this, the Addis Ababa University International Humanitarian Law Clinic aims to understand the issue of forced displacement, and thereby inform policy decisions. Engaging with scholars from various disciplines, the clinic also aims to develop strategies to address challenges of forced displacement and armed conflicts in Africa, potentially creating a platform for collaborative efforts to address challenges faced by African nations in dealing with forced displacement in connection with armed conflicts.

In this vein, the Addis Ababa University International Humanitarian Law Clinic invites submissions for blogpost articles that study the multifaceted relationship between forced displacement and armed conflict in Africa.  Authors are encouraged to explore various dimensions of this nexus, considering both the consequences of displacement resulting from armed conflict and the ways in which displacement can fuel or prolong conflicts. Potential areas for exploration include:

  • Overview of the relationship between armed conflict and forced displacement, highlighting the interconnectedness of these phenomena and their impact on individuals and communities.
    • Causes of Forced Displacement in Armed Conflict, including violence and insecurity, destruction of infrastructure and livelihoods, human rights violations, and ethnic and religious persecution.Impact of Forced Displacement on Individuals and Communities, examining psychological trauma, loss of social support networks, economic challenges, disruption of education and healthcare access, and the strain on resources of host communities.
  • Exploration of root causes of migration within conflict contexts, and strategies for addressing underlying drivers of displacement.
  • Legal frameworks and mobility amidst conflict situations, examining challenges and opportunities for displaced populations.
    • International Legal Framework for Protecting Displaced Persons in Armed Conflict, encompassing refugee law, international humanitarian law, responsibilities of states and international organizations, and challenges in implementation and enforcement.
    • Protection mechanisms for individuals fleeing conflict zones, and the efficacy of international legal frameworks in ensuring their rights and safety.
  • Humanitarian Response to Forced Displacement in Armed Conflict, focusing on the role of humanitarian organizations and agencies, provision of shelter, food, and medical assistance, and protection of vulnerable groups.
  • Long-Term Solutions to Address Armed Conflict and Forced Displacement, including conflict prevention and resolution strategies, peacebuilding efforts, and sustainable development initiatives in conflict-affected areas:
    • Strategies to combat irregular migration, migrant smuggling, and trafficking in human beings in conflict-affected regions.
    • The intersection of climate-induced displacement and armed conflict, and efforts towards climate adaptation and resilience among displaced communities.
    • Health challenges faced by migrants and refugees in conflict settings, and the need for targeted healthcare interventions.
    • Sustainable reintegration initiatives for returning migrants and refugees, and the role of readmission and reintegration in post-conflict reconstruction.
    • Protection of victims of trafficking amidst conflict dynamics, and strategies for preventing exploitation and abuse.
    • Promotion of free movement and mobility within Africa as a means of enhancing regional cooperation and stability, particularly in conflict-prone areas.
  • The gender dimension of forced displacement, such as increased risk of gender-based violence, loss of economic opportunities, and disruption of social support networks for women, challenges faced by displaced women including accessing healthcare, particularly reproductive health services and support for survivors of sexual violence.
  • Case Studies: Examining Specific Examples of Armed Conflict and Forced Displacement, providing in-depth analyses of particular conflicts and their impact on displacement dynamics in Africa.
  • Other Multidisciplinary topics such as climate change and youth engagement, especially in their relation to the dynamics of forced displacement and armed conflict in Africa.

We look forward to engaging with diverse perspectives and innovative insights on this critical issue facing Africa today.

Submitting Your Blogposts

We welcome original contributions from academics, students and practitioners from a variety of disciplines across Africa. Please submit your blogposts with the length of 1,500 to 2,000 words (except where agreed with the editors) to the following email: ihlclinicaau@gmail.com

During the selection process, priority will be given to innovative blogposts that demonstrate clear potential to contribute to and advance the legal and policy debates in the field of forced displacement and armed conflict in Africa.

For the general submission guidelines (on referencing and editorial guidelines) please visit https://aauihl-clinic.org/submission-criteria/

[1] Uppsala Conflict Data Programme (UCDP)  “UCDP Dataset Download Center.” n.d. https://ucdp.uu.se/downloads/index.html#armedconflict. 

[2] Africa Center for Strategic Studies. (2023, October 26). African conflicts displace over 40 million people – https://africacenter.org/spotlight/african-conflicts-displace-over-40-million-people/  

[3] ibid

AAU-IHL Clinic International Humanitarian Law, Women Affected by Armed Conflict

Child Marriage in Afar: Girls’ vulnerability and challenges in tackling the practice in conflict settings 

Author: Kulsma Nur


Extracted from the research project titled “War and Child Marriage: The Vulnerability of Girls to Child Marriage Due to War in Northern Ethiopia,” conducted under CARD’s Werdwet Research Fellowship.

The Conflict in Northern Ethiopia that erupted on November 4, 2020, between the Federal Government of Ethiopia and the Tigray People’s Liberation Front (TPLF) followed rising political tensions between the two. Eight months into the war, the conflict spilled into the neighbouring Afar region when TPLF fighters mounted attacks into the region, and Afar forces as well as allied militias joined the fight. The two-year conflict which ended in November 2022 after the signing of the Pretoria Agreement (Cessation of Hostilities Agreement), has left a lasting mark on the communities it has impacted. Among the several challenges faced, the vulnerability of girls to child marriage stands out as one of the pressing concerns.

Child marriage is defined as any formal or informal union between a child under the age of 18 and an adult or another child. This practice violates fundamental rights enshrined in several human rights instruments including the Universal Declaration of Human Rights (UDHR), the Convention on the Rights of the Child (CRC), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The FDRE constitution prohibits any harmful acts against children and women and requires marriage to be concluded based on the free and full consent of the future spouses. In addition, Ethiopia has criminalised child marriage under Article 648(a) of the 2005 FDRE Criminal Code. 

The war in Northern Ethiopia has adversely affected the enjoyment of children’s rights, particularly their right to education, and protection from violence. The conflict has also led to the destruction of school infrastructure, which has resulted in an estimated 2.8 million children missing out on education in 2021.

Photographer: Eduardo Soteras/AFP/Getty Images https://www.bloomberg.com/news/articles/2022-09-29/ethiopia-s-civil-war-is-heating-up-once-again

While global trends indicate a decline in child marriage, Ethiopia is home to 15 million child brides. Recent research indicates that conflict and instability are significant catalyst of child marriage, with seven of the ten countries with the highest rates of female child marriage in 2017 are classified as fragile states. The top five countries being Niger (76%), the Central African Republic (68%), Chad (67%), Bangladesh (59%), Mali (52%), South Sudan (52%) and Mozambique (48%). Ethiopia has observed an increase in child marriage in areas hit by conflict and drought in 2022. According to estimates, for every year that the conflict lasted at its worst intensity, the rate of child marriage in Ethiopia may rise by 15%.

The prevalence in Ethiopia (40%) is slightly higher than the regional average for Eastern and Southern Africa (35%) and about twice the global average (21%). The prevalence of child marriage in Ethiopia has varied levels across regions. In Northern Ethiopia, particularly in the Afar region, child marriage emerges as a significant issue; with a staggering 67% prevalence among women aged 20-24 who were married before 18. Cultural norms, economic drivers, and displacement due to conflict intertwine, creating a complex web influencing attitudes toward the practice. The practice of child marriage has been deeply ingrained within cultural practices in the Afar region, with girls as young as 10 or 11 years old frequently being married off. Over two decades there had only been a 2 % decrease in the prevalence of child marriage in Afar region.   

In the Afar region, attitudes toward child marriage are influenced by a combination of cultural norms, expectations, and perceptions surrounding marriage and girlhood. Cultural traditions prioritize early marriage and childbearing for girls, creating barriers to their education and personal development. Some individuals see early marriage as a method to ensure girls’ sexual purity and shield them from premarital sex.

The perceived impacts of child marriage vary, with responses emphasizing limited practical, economic, or social benefits and framing the practice as primarily rooted in cultural traditions. In interviews conducted with members of the Afar society for the research project titled “War and Child Marriage: The Vulnerability of Girls to Child Marriage Due to War in Northern Ethiopia,” by this author, some participants justify child marriage as a preventive measure against unwanted pregnancies or due to certain religious beliefs. For instance, according to an interviewed father, if a girl is not married by the time she starts menstruating he will be punished in the afterlife the longer he keeps her in his house unmarried (Nur, 2023, pp. 98–100). 

While other participants in the study recognize negative consequences of child marriage, including physical and mental health issues, conflicts in marital relationships, and constraints on girls’ autonomy. Notably, fathers tend to emphasize advantages, while mothers and girls express concerns about the adverse consequences (Nur, 2023, p.97). Economic drivers of child marriage in Afar region are linked to poverty and economic hardship, as families may view it as a way to ease financial burdens and secure their daughters’ future. 

The persistence of child marriage in the community is not solely a result of cultural norms but also attributed to a lack of knowledge and awareness of laws prohibiting it. In the absence of understanding legal protections, the practice endures through reliance on cultural and religious practices to determine when a girl is ready for marriage. 

Humanitarian settings exacerbate these drivers as, during times of conflict and displacement, child marriage may be viewed as a strategy to protect daughters and ensure their survival in challenging circumstances. The research highlighted a concern on increased vulnerability of girls to child marriage since the conflict, driven by the desire to preserve bloodlines and ensure community continuity amid war-induced losses (Nur, 2023, p.122).

The impact of conflict, including displacement, social disruption, and economic hardship, has significantly increased the susceptibility of girls to child marriage. In addition, conflict induced displacement has dismantled the existing, albeit minimal protective systems, exposing girls to early marriage and various forms of exploitation (Nur, 2023, p.124). Families and communities, grappling with the consequences of conflict, tend to believe that early marriage provides protection to daughters, shielding them from harm, including rape and other safety issues. 

Furthermore, there are other underlying factors that indirectly play significant role in exposing girls to the practice of child marriage, such as disruption of access to education, one of the protective factors defending girls against child marriage, and a lack of awareness and access to protective organizations contribute to this increase. Many girls face barriers such as financial constraints and challenges in resettlement, preventing them from returning back to school. Furthermore, cultural norms and priorities sometimes dictate that girls must prioritize marriage over education, with parents and spouses exerting influence over girls’ educational pursuits. The lack of quality education in conflict-affected regions, compounded by limited economic opportunities, further perpetuates the cycle of child marriage (Nur, 2023, pp.124-126).

In addition to the breakdown of education systems, many respondents are unaware of the services provided by organizations and institutions working to prevent child marriage and even those who are aware may face challenges in accessing them. This exacerbates the vulnerability of girls to child marriage in conflict-affected areas.

Ethiopia has introduced several policies and strategies to end child marriage with the collaboration of several international, regional, and local NGOs. One of the most recent programs is the ‘End Child Marriage’: A flagship program 2020-2025 which was sponsored by UNFPA-UNICEF in Ethiopia by targeting several woredas in Afar. Amhara and Tigray region. The situation of conflict and drought in Ethiopia poses risk to the program. (UNICEF, 2023, p.83. 

The challenges for preventing and responding to child marriage in conflict settings are diverse and encompass several key dimensions. Firstly, limited access to conflict-affected areas poses a significant obstacle, impeding the reach of interventions and support services to those in need. 

Secondly, the scarcity of local organizations and international entities on the ground further hampers the effective prevention and response to child marriage practices. Thirdly, the prioritization of immediate life-saving interventions in conflict settings may divert attention and resources from addressing the root causes of child marriage. Additionally, funding constraints, resulting from high numbers of internally displaced persons and the impact of conflict, may undermine initiatives aimed at combating child marriage. 

The inter-mixing of displaced and local populations in conflict settings also contributes to the persistence of child marriage and complicates efforts to identify and reach those at risk. Moreover, the impact of the COVID-19 pandemic has intensified challenges in conflict settings, disrupting education, healthcare, and support services, thereby increasing the vulnerability of girls to child marriage.

Ending child marriage in conflict zones requires a multifaceted approach addressing cultural, economic, and social factors. Policies and interventions should prioritize child protection, address root causes like poverty and harmful traditions, and educate communities about the negative consequences. It is crucial to involve community and religious leaders in shifting attitudes and promoting alternative practices that prioritize girls’ well-being. Integrating women’s perspectives into cultural institutions is another way to ensure progress towards gender equality (Nur, 2023, pp. 131-135) 

Additionally, further research is needed to identify policy gaps, understand the role of tradition gatekeepers, and measure the impact of child marriage to create effective interventions and support affected families and children. 

Kulsma Nur

Kulsma Nur, a law graduate, is presently enrolled in the LL.M. Public International Law program at Addis Ababa University. With a professional background in journalism, research, and academia, her interests are in women’s rights issues, International Humanitarian Law (IHL), and politics. As a CARD Werdwet Research Fellow, she completed the research “War and Child Marriage: The Vulnerability of Girls to Child Marriage Due to War in Northern Ethiopia” which focused on the nexus between war and child marriage in the conflict affected Afar region. Additionally, she is a 2023 Mandela Washington Fellow. Email: Kulsmanur12@gmail.com

AAU-IHL Clinic Means and Methods of Warfare, Rules of Warfare

The Call to Ban Lethal Autonomous Weapons: Where Do African Nations Stand?

Author: Swaleh Hemed Wengo 

Photo credit: US Department of Defense / Sgt. Cory D. Payne, Public Domain

The rapid development of artificial intelligence (AI) and autonomous technologies is raising alarm bells globally about their potential use in lethal autonomous weapons systems (LAWS). LAWS, also known as “killer robots”, refer to weapons that can identify, target, and deploy lethal force against human beings without meaningful human control.[1] The idea of machines making life-and-death decisions on the battlefield has spurred an international movement calling for a total preemptive ban on fully autonomous weapons.[2] African nations have an important voice in this debate, but their perspectives remain underrepresented. 

Opposition to Killer Robots

Much of the opposition to autonomous weapons stems from grave humanitarian, legal, and ethical risks they pose.

  1. Humanitarian Opposition

It has been argued that, lethal autonomous weapon system would struggle to comply with humanitarian principles requiring humane treatment and respect for human life and dignity, as they lack emotion, compassion, ethical judgment and understanding of the value of life.[3] Humans make considered decisions about harm and killing by weighing context, impacts and alternatives, but autonomous weapons rely on pre-programmed algorithms unfit for complex scenarios.[4]While algorithms may enable adequate protection of life, lethal autonomous weapon systems could not appreciate the meaning and significance of life and death.[5] By treating targets as objects in lethal decision-making processes devoid of empathy, judgment and innate resistance to taking life, fully autonomous weapons would fail to respect human dignity and violate the principles of humanity.

  1. Ethical & Moral Opposition

There is also growing public outrage over fully autonomous weapons, implying these weapons violate the moral dictates of conscience laid out in the Martens Clause. Numerous stakeholders like individuals, experts and NGOs have voiced strong ethical objections using terms like “unconscionable” and “abhorrent.”[6] Surveys also show majority public opposition to autonomous weapons. Government statements cite compliance with the Martens Clause and moral deficiencies as concerns.[7] Over 120 nations support new law addressing lethal autonomous weapons and stress retaining human control in use of force decisions, equivalent to banning fully autonomous weapons lacking such control.[8] This emerging consensus against allowing fully autonomous weapons demonstrates they run counter to the dictates of public conscience requiring guidelines for what is morally right, as enshrined in the Martens Clause.

  1. Legal Opposition

Core principles of international humanitarian law require militaries to reliably distinguish between combatants and civilians, while avoiding disproportionate civilian harm.[9] However, LAWS may struggle with the complex judgments involved in differentiating combatants, assessing proportionality amidst uncertainty, and recognizing attempts to surrender or individuals rendered hors de combat.[10] For example, parts of Kenya and South Sudan use firearms for cattle herding. LAWS programmed to engage persons carrying firearms could fail to distinguish active participants in hostilities from herders following cultural practices. Their sensors and algorithms would need to accurately interpret such ambiguous environments and behaviors lacking contextual understanding. The unpredictability of AI systems utilizing machine learning also defies easy verification that LAWS will operate lawfully. In effect, doubts persist about the ability of LAWS to exercise discretion and restraint or demonstrate the accountability necessary to ensure adherence to norms guarding civilian lives or other protections endowed by ethics and law. 

In response to these concerns, the UN Convention on Certain Conventional Weapons (CCW) has held extensive discussions on regulating lethal autonomous weapons. A broad international coalition of NGOs known as the Stop Killer Robots has specifically called for a preemptive ban on the development, production, and use of fully autonomous weapons. The campaign has gained support from over 30 nations.[11] Outside the CCW, the European Parliament passed a resolution calling for an international ban in 2018. However, consensus remains elusive due to objections from nations investing heavily in autonomous weapons programs, such as Israel, Russia and the US, although the US believes LAWS with increasing autonomy can be developed and used responsibly under human oversight to improve compliance with international law. 

The African Stand

African nations have actively participated in CCW talks, underscoring concerns about LAWS fundamentally conflicting with human rights and dignity.  Countries such as Libya and South Africa illustrate Africa’s existing and potential connections to development of these technologies. Libya has seen autonomous weapons like the STM Kargu-2 deployed on its soil already. As an advanced arms producer on the continent, South Africa also has interests in the research and production side of autonomous weapons. Hence understanding LAWS’ impacts and asserting African perspectives in regulatory debates is critical.

The KARGU®️ – a portable, rotary wing attack drone designed to provide tactical ISR and precision strike capabilies for ground troops https://www.stm.com.tr/en/kargu-autonomous-tactical-multi-rotor-attack-uav

Several African countries have taken clear positions calling for a prohibition on the development and production of lethal autonomous weapons systems (LAWS). South Africa stated, “there is a necessity for human control in the selection of targets to enforce accountability.”[12] Egypt cited the need to preemptively ban LAWS before they proliferate citing the example of banning of blinding lasers. Algeria, Djibouti, Egypt, Ghana, Morocco, Namibia, Uganda and Zimbabwe are among over 30 countries seeking a comprehensive ban.[13] Additionally, African nations have actively participated in UN meetings examining potential legal instruments to govern LAWS. The Group of Governmental Experts (GGE) on LAWS was created under CCW to assess emerging technologies and issues around autonomous weapons in light of international law. Multiple African countries across various roles in the convention have contributed to these discussions.

African countries have provided substantive written inputs to inform GGE deliberations.[14] Mauritius advocated for a treaty instituting transparency requirements around LAWS programs and use. South Africa held that GGE principles adopted so far are only intended to guide the group’s work rather than national policies. Looking ahead, African members of blocs like the Non-Aligned Movement have underscored the urgent need to pursue legally binding prohibitions and restrictions to contend with humanitarian and security threats of LAWS. They have pushed for expanding GGE’s mandate to expressly focus on drafting robust international law covering development of these weapons.

Ghanian Chiefs urged to support ‘Campaign to Stop Killer Robots’ https://www.ghanaweb.com/GhanaHomePage/NewsArchive/Chiefs-urged-to-support-Campaign-to-Stop-Killer-Robots-1311715?gallery=1

Beyond CCW, the African Commission on Human and Peoples’ Right (ACHPR) adopted and published Resolution 473 on AI technologies  bearing in mind the statement to the United Nations Group of Governmental Experts (GGE) on Lethal Autonomous Weapon Systems  (LAWS) by the African Group of States on Disarmament on the notion of dignity and humanity and emphasized how this notion is the foundation of human rights in governing the conducts of human beings including their inventions. The African Commission’s Resolution 473 demonstrates broader concern across African institutions over retaining human control and judgment in weapon systems to uphold dignity and rights. The resolution took careful note of the statement by the African Group of States on Disarmament to the UN Group of Governmental Experts (GGE), which stressed how the concepts of dignity and humanity underpin all human rights and must govern human conduct including technological inventions.

By underscoring this statement, the resolution connects development of emerging AI and algorithmic technologies, including potential weapon systems, with longstanding African values around communal ties, ethics and our shared humanity. It suggests autonomous systems that remove human discretion over life-and-death decisions could violate these cherished principles. The resolution implied protecting dignity and human rights in the age of intelligent machines will require conscious constraints around handing over core human judgments with moral and social consequences to automated data processing.[15]

Seen together with African nations’ calls for legally binding instruments to prohibit fully autonomous weapons, the African Commission’s stance signals deep concerns that unchecked AI development poses risks of dehumanization and rights violations. Embedding moral perspectives into research guidance and governance of autonomous technologies is deemed essential to uphold existing obligations around protecting sacred human life and dignity.

However, Africa remains divided. The Continent lacks a unified stance banning killer robots. Some states, such as Guinea and Mali, have so far opposed a prohibition on LAWS or enhancing international law on the issue.[16] Defense ties with countries developing autonomous weapons drive some African nations’ positions. Financial and technical limitations also constrain independent assessment of autonomous weapons’ risks and benefits. Furthermore, inadequate basic digital infrastructure hinders many African states from crafting regulations on LAWS and on new technologies such as AI in general. Nonetheless, international momentum for curtailing autonomous weapons is escalating. As diplomatic talks continue, consolidating African perspectives on prohibiting development and use of fully autonomous weapons will be critical. More capacity building, international technical assistance, and knowledge sharing partnerships focused on responsible AI governance can help overcome these hurdles. Initiatives to expand African expertise in robotics ethics, data governance, and assessing autonomous systems safety are urgently needed. With global public opinion increasingly opposed to handing over life-and-death decisions to machines, African nations have the chance to lead in forging a legally binding international ban on lethal autonomous weapons. By asserting shared human values and rejecting the dehumanizing prospect of automated killing, Africa can make a profoundly important contribution to preventing an automated arms race and upholding international humanitarian law. The world needs African moral leadership in drawing a clear legal line against fully autonomous weapons before proliferation makes it impossible to stop the march of technology towards fundamentally inhuman ends.

References:

[1] DoD Directive 3000.09 on autonomous weapon systems, November 21, 2012.

[2] Human Rights Watch, Stopping Killer Robots Country Positions on Banning Fully Autonomous Weapons and Retaining Human Control,https://www.hrw.org/sites/default/files/media_2021/04/arms0820_web_1.pdf

[3] Human Rights Watch, Heed the Call: A Moral and Legal Imperative to Ban Killer Robots, August 2018, https://www.hrw.org/sites/default/files/report_pdf/arms0818_web.pdf

[4] What are autonomous weapons systems?, https://autonomousweapons.org/

[5] Future of Life, An introduction to the issue of Lethal Autonomous Weapons, https://futureoflife.org/aws/an-introduction-to-the-issue-of-lethal-autonomous-weapons/

[6] Human Rights Watch, Heed the Call: A Moral and Legal Imperative to Ban Killer Robots, 2018, https://www.hrw.org/report/2018/08/21/heed-call/moral-and-legal-imperative-ban-killer-robots

[7] Arms Control Association, Ethics and Autonomous Weapon Systems: An Ethical Basis for Human Control?, 2018, https://www.armscontrol.org/act/2018-07/features/document-ethics-autonomous-weapon-systems-ethical-basis-human-control

[8] Human Rights Watch, Heed the Call: A Moral and Legal Imperative to Ban Killer Robots, 2018, https://www.hrw.org/report/2018/08/21/heed-call/moral-and-legal-imperative-ban-killer-robots

[9] Additional Protocol I (1977), Articles 48, 51, and 52; ICRC, Study on Customary International Humanitarian Law, 2005, Rules 1 and 7.

[10] Dr Vincent Boulanin, Netta Goussac and Laura Bruun, Autonomous Weapon Systems and International Humanitarian Law: Identifying Limits and the Required Type and Degree of Human–Machine Interaction, SIPRI, 2021, Available at https://www.sipri.org/publications/2021/policy-reports/autonomous-weapon-systems-and-international-humanitarian-law-identifying-limits-and-required-type

[11] Stop Killer Robots, Report on Activities Convention on Conventional Weapons Group of Governmental Experts meeting on lethal autonomous weapons systems, United Nations, Geneva, 9-13 April 2018, https://www.stopkillerrobots.org/wp-content/uploads/2018/07/KRC_ReportCCWX_Apr2018_UPLOADED.pdf

[12] CCW Statement by South Africa at the Meeting of Experts on Lethal Autonomous Weapons Systems (LAWS) Geneva, Switzerland, April 2016, https://perma.cc/YHH2-H2QE

[13] Diplo, Africa’s participation in international processes related to AI, https://www.diplomacy.edu/resource/report-stronger-digital-voices-from-africa/africa-participation-international-processes-ai/#:~:text=Algeria%2C%20Djibouti%2C%20Egypt%2C%20Ghana,concerning%20Lethal%20Autonomous%20Weapon%20Systems. 

[14] Group of Governmental Experts on Emerging Technologies in the Area of Lethal Autonomous Weapons Systems. (2019). Report of the 2019 session. 

[15] Resolution on the need to undertake a Study on human and peoples’ rights and artificial intelligence (AI), robotics and other new and emerging technologies in Africa – ACHPR/Res. 473 (EXT.OS/ XXXI) 2021

[16] Votes against the First Committee of the UN General Assembly resolution on autonomous weapons, https://www.stopkillerrobots.org/news/164-states-vote-against-the-machine/

Author’s Bio

Swaleh Hemed Wengo is a Law Lecturer at Prince Sultan University (Saudi Arabia). He holds an LLM from Koc University (Turkey) and an LLB from Kampala International University (Uganda). He is also the Assistant Director of Programs at Firdaous Centre for Academic Excellence. His research Interests Include Public International Law, International Humanitarian Law & Human Right, Artificial Intelligence and Investment Law & Arbitration.

Email: swengo@psu.edu.sa

Linkedin: Swaleh Hemed

Twitter: @HemedSwaleh 

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 Rules of Warfare, Traditional Values in Warfare

Does International Humanitarian Law reflect African customs and traditions? A spotlight on the ICRC’s Tool on African values in war

Autor: Sarah Jean Mabeza

Image Credit: The IHL Customary Law Tool, ICRC

Is International Humanitarian Law (IHL) a Western concept?  This is a question that causes me, as an African IHL practitioner, great cause for concern, as I am convinced of the universality of this body of law.  But I must admit that while my answer to the question would be an adamant “no”, I do not blame those who ask it.  I recall the experience of a colleague who, attempting to convince a Chief in the Pacific Ocean Islands to ratify the 1949 Geneva Conventions, was asked by the Chief “but where is Geneva?” and “what is a convention?”.[1]  This story has always perturbed me, and as an African, I have wondered about the level of ownership over this important body of law from my own continent.

This lack of ownership could, to a certain extent, be understood.  Firstly, the codification of IHL was led by a select few States and centred in the West.[2]  Secondly, African States rarely benefited from the application of principles of IHL, both during the wars of colonization and decolonization on the continent.[3]  And yet despite this, reasons for increased African ownership of IHL exist. The aim of this contribution to is highlight just one of those reasons – the historical relationship that exists between Africa and the law of war.  Indeed, many African cultures have for decades, if not centuries, contained practices that share humanitarian values with modern day IHL provisions. 

In mid-2021 the ICRC launched a Tool to highlight the link between African traditions and customs and modern-day IHL – the ‘African Values in War Tool on Traditional Customs and IHL’.[4]  The tool is the product of a number of years of research into the values underpinning African customs concerning warfare, and is unique in that it collates practices from across the continent that reflect some of the fundamental principles of IHL.  According to one of the legal advisors who worked on the Tool, its purpose is “firstly to contribute to current debates on relevance of IHL to Africa; and secondly to increase understanding and acceptance of IHL rules on the African continent”.[5]  Overall, the ICRC hopes that this Tool may contribute to increased awareness of IHL and improved compliance with the body of law, which may then in turn ultimately contribute towards the reduction of suffering during times of armed conflict.    To illustrate its value, listed below are four of the collected traditions and customs that are geographically representative of the continent:

  • The Tallensi tribe in Ghana considered attacking, looting and pillaging of civilian property a violation of their dignity and a dishonourable act to be avoided; and the traditional rule which regulated the behavior of the Kamajors of Sierra Leone in warfare included the prohibition on looting villages.  These customs reflect the modern-day principle of IHL which states that pillage is prohibited.[6]
  • In the Oronn district in Nigeria when one town decided to go to war against another, two men were sent to lay a plantain leaf upon the road entering the town, signaling an official declaration of war and warning civilians of impending hostilities.  This practice reflects the modern-day principle of IHL which states that effective advanced warning of attacks which may affect the civilian population shall be given, unless circumstances do not permit.[7]
  • In Somalia it was strictly forbidden to desecrate the bodies of the enemy dead or take their possessions for personal gain.  This tradition reflects the modern-day principles of IHL which state that each party to the armed conflict must take all possible measures to prevent the dead from being despoiled, and that mutilation of dead bodies is to be prohibited.[8]
  • As a final example, Maasai warriors in Kenya wore distinctive armbands to distinguish themselves from the civilian population.  This reflects the modern day principle of IHL which states that in order to promote the protection of the civilian population from the effects of hostilities, combatants are urged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack.[9]

Despite the clear links between the traditional practices mentioned above and contemporary principles of IHL, there is not always a direct correlation between the two.  For example, many of the traditional customs collected come from contexts of non-international armed conflicts, whereas some of the IHL principles referenced apply only in international armed conflicts.  Yet the value of the Tool lies in the fact that it provides clarity and confirmation that the rules contained in modern IHL are not foreign concepts in Africa.  

Does IHL reflect African customs and traditions?  To a certain extent, yes.  The Tool will need to be extended and updated in order to answer that question clearly, but for now, it certainly points to the existence of African values in war, which are reflective of contemporary principles of IHL.  As an African IHL practitioner, this gives me hope.

Image Credit: The IHL Customary Law Tool, ICRC

[1] Email exchange with Helen Durham, International Law and Policy Director, International Committee of the Red Cross; 17.08.2021.

[2] To illustrate, all of the 12 countries that signed the 1864 Geneva Convention at the conclusion of its negotiation were European.  See https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_treatySelected=120 (accessed 17.08.21).

[3] This contribution will not focus on the above-mentioned criticisms of IHL in Africa.  For more analysis on that topic, see G Waschefort, “Africa and international humanitarian law: The more things change, the more they stay the same”, International Review of the Red Cross, 2016, 98 (2), p. 603.

[4] ‘African values in war: A Tool on traditional customs and IHL’, https://www.icrc.org/en/document/african-customs-tool-traditional-customs-and-ihl (accessed 16.08.21).

[5] Interview with Tamalin Bolus, Legal Advisor, Pretoria Delegation, International Committee of the Red Cross; 12.08.2021; Pretoria, South Africa.

[6] See GC IV Art. 33(2); AP II Art. (4)(2)(g) and CIHL Rule 52. 

[7] See AP 1 Art. 57(2)(c) & CIHL Rule 20.  

[8] See for example GC I Art. 15(1); GC II Art. 18(1); GC IV Art. 16(2); AP I Art. 34(1); AP II Art. 8 & CIHL Rule 113.  

[9] See AP I Art. 44(3) & CIHL Rule 106. 

Author’s Bio

Sarah J Mabeza, ICRC Regional Legal Advisor, Pretoria Delegation, International Committee of the Red Cross; LLB (UKZN), LLM, Human Rights and Democratisation in Africa (CHR, UP); sarah.mabeza@outlook.com.  

The views expressed are those of the author and do not necessarily represent those of the ICRC.  

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. 

AAU-IHL Clinic Uncategorized

(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.