November/28/2020
Author: Fikire Tinsae Birhane
Introduction
On November 4, 2020, security forces loyal to the TPLF, mainly the regional special forces, made a surprise attack at the Northern Command of the Ethiopian National Defense Force (ENDF). Many people are reportedly killed.
Sometime around midnight of the same day, Prime Minister Abiy announced that he had ordered the military to confront the attackers. The TPLF have admitted that the strike at the Northern Command was carried out in “anticipatory self-defense“. Prime Minister Abiy condemned the attack declaring that “the last red line has been crossed” by the TPLF after months of alleged provocations.
As the military confrontations continue between the ENDF on the one hand and forces loyal to the TPLF on the other, there are a number of developments begging reflection from IHL’s perspective.
In this part of the post, based on current developments, I will try to show whether IHL is applicable to the confrontations.
Law Enforcement Operation or Conduct of Hostilities?
The Federal Government describes the ongoing situation as a “law enforcement action” against what it regards as an illegal TPFL junta (clique) responsible for grave human rights violations. The TPLF, however, describes it as a war (conduct of hostilities) aimed at subjugating Tigray. The material scope of IHL, i.e. situations in which it applies, is limited to conduct of hostilities. Thus, leaving aside the claims by each side, characterizing the situation on factual grounds is pivotal to determine whether IHL applies in this particular situation.
Ethiopia is a State party to the four Geneva Conventions of 1949 and their Additional Protocols of 1977. If the situation is to fall under the scope of IHL, according to these treaties, it should belong to one of the two classifications, international armed conflict (IAC) or non-international armed conflict (NIAC). This classification depends solely on the identity of the parties. Generally, confrontations between sovereign States against each other would be IAC while confrontations between governmental authorities and organized armed groups or between such groups within the territory of a State would be NIAC. As described in the introduction, the confrontation in northern Ethiopia is being conducted within the Ethiopian territory between the ENDF (representing the State and supported by special forces and militia from the Amhara region) and forces loyal to the TPLF, which administers the Tigray region of Ethiopia. This suggests that if the situation is one of a conduct of hostilities, its nature would be a NIAC.
The TPLF alleges that Eritrean forces are involved in the conflict on the side of ENDF. Many people assume that if this allegation is proven, it would internationalize the conflict. However, involvement of a foreign country on the side of the State, under invitation or consent from the later, would not affect classification of the conflict. This means that even if the allegation of involvement of Eritrean forces is true, the situation would still remain a NIAC.
To determine whether IHL of NIACs applies to the ongoing situation in Ethiopia there are two reference points in the law. These are Common Article 3 (CA3) of the Geneva Conventions and Article 1 of Additional Protocol 2 (APII). The latter, which sets more stringent requirements for its application, is meant to supplement the former. Hence, in situations where the conditions for its application are met, both will apply simultaneously. Hence, there would be no need to check the material applicability of IHL in reference to CA3. However, if the conditions for application of APII are not met, one should still go on to check whether IHL applies to the situation based on Common Article 3 (with the exclusion of APII), which provides for a lower threshold for its applicability.
Is APII Applicable to the Ongoing Confrontations?
Article 1 of APII determines the circumstances in which it applies. Starting with a negative definition that its application is limited to situations that are not covered by IHL of IACs as provided under Article 1 of API, it provides that APII applies to armed conflicts “…which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” As soon as the material conditions as defined in this Article are fulfilled, APII automatically applies. By dissecting the criteria laid down in this Article and analyzing the facts on the ground against each, one can determine whether APII (hence the whole body of IHL of NIACs) applies to the ongoing confrontations in Ethiopia. Accordingly, the situation can be determined to be conduct of hostilities rather than law enforcement operation.
- The place of confrontations
The definition provides that APII applies to armed conflicts “which take place in the territory of a High Contracting Party”. Ethiopia is a high contracting party to APII, and the confrontation is taking place within its territory.
- The parties confronting each other
One of the situations in which APII applies is a situation whereby armed forces of a State confront dissident armed forces. According to the ICRC commentary of the Article, this is a situation “where there is a rebellion by part of the government army or where the government’s armed forces fight against insurgents who are organized in armed groups”. In the ongoing confrontation in Ethiopia, the ENDF (State armed force of Ethiopia) is fighting the armed forces loyal to the TPLF (the dissident force fighting against the Federal government that represents the State).
- The responsible command
This criterion implies existence of some degree of organization of the dissident armed forces. According to the commentary on the provision, it means “an organization capable, on the one hand, of planning and carrying out sustained and concerted military operations, and on the other, of imposing discipline in the name of a de facto authority.” The ongoing situation reveals the fulfillment of this criterion as the dissident forces, which are composed of special forces of Tigray and fighters defecting from the northern command of the ENDF, are well organized. The TPLF, establishing command and control structure for the dissident forces, demonstrated a capacity to plan and carry out sustained and concerted military operations against the ENDF and to impose discipline in its name.
- Control over a part of the territory
The article provides that the dissident armed forces must be able to exercise “such control over a part of [the High Contracting Party’s] territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”. It goes without saying that TPLF, as the administrator of the Tigray region, has control over this part of the territory of Ethiopia.
- The sustained and concerted character of military operations
Fulfilment of this condition is what effectively determines control over a territory. According to the commentary, “sustained” is to mean that the operations are kept going or kept up continuously while “concerted” refers to military operations conceived and planned by organized armed groups. Since November 4 operations by both sides kept going as conceived and planned by each side.
- Ability to implement the Protocol
According to this criterion, being under responsible command and in control of a part of the territory concerned, the dissident group must be in a position to implement the Protocol. This relates to existence of a minimum infrastructure required to apply the rules entrenched under APII at the disposal of the group. As an administrator of one of the ten federating units of Ethiopia for about 30 years now, it would be reasonable to conclude that the TPLF has ability to implement APII.
Conclusion
As facts on the ground suggest that the ongoing confrontation between armed forces of the Federal government and the dissident forces of TPLF fulfill the conditions laid down under APII for its application. Accordingly, it can be concluded that the confrontations qualify as conduct of hostilities.
Fikire Tinsae Birhane
Lecturer of Laws and Human Rights, School of Law, Hawassa University.
Doctoral Student, Institute of International and Comparative Law in Africa, University of Pretoria.
Email address: ftinsae@gmail.com/fikire.birhane@graduateinstitute.ch
Addis Ababa University IHL Clinic 