Alliance between Armed Groups and the Effect on Classification of Conflicts: a Focus on the TPLF-OLA Alliance

Author: Marishet M. Hamza

Photo Credit: https://lindro.it/ethiopia-tplf-unexpected-counter-offensive-in-tigray/ and https://www.aberfoylesecurity.com/?p=2344

Factual Background 

Recently, the Oromo Liberation Army (OLA), an armed group operating in the Oromia region of Ethiopia, and the Tigray Liberation Front (TPLF),the rebel group in the ongoing non-international armed conflict (NIAC) in Tigray, have announced their alliance that is aimed at making military cooperation in the  fight against the government of Ethiopia. . 

OLA, also known by the government as Shene group, is the breakaway faction of the Oromo Liberation Front (OLF), a political party that had been fighting against the government until it returned to peaceful political struggle in 2018. OLA is formed by a, a faction that broke away from the OLF’s military wing. It has been fighting against the government mainly in the western and southern parts of Oromia region. 

In May 2021, the federal government proscribed both TPLF and OLA as terrorist groups.

OLA military activities

Very little is known about the organization and functioning of OLA. The number of fighters it has, its military capabilities, and whether it has control over territories is not clearly known. Also, less is known about its military engagement. Whereas the government accuses OLA of waging heinous attacks against civilians and local administrators. For instance, according to the government, in 2020/21 alone OLA killed 463 people including civilians, police officers, local militia members and local government leaders. The group is also blamed for destroying civilian properties. Although such facts might indicate a certain level of intensity of the violence OLA engaged in, OLA nonetheless vehemently denies those accusations. Overall, despite reportsthat suspect the involvement of members of OLA in the alleged atrocities, the information available remains inconclusive.

Classification of the conflict 

Under International Humanitarian Law (IHL) a  NIAC exists if the armed group involved has a modicum of organization and the violence is sufficiently intense (ICTY, Prosecutor v. Dusko Tadić, 1995, para.70). These two thresholds – of organization and intensity of violence – have to be met for IHL to apply to an internal conflict. 

The paucity of information on the organization of OLA and the nature of the violence it has engaged in obscures establishing whether the two thresholds are met and determining the existence of a NIAC between OLA and the government forces. 

Indeed, as crystallized by the ICTY jurisprudence, the thresholds of organization and intensity of violencecould be discerned from other indicative factors such as control over territory by an armed group or where the government is obliged to use military force against insurgents instead of regular police forces, respectively. Also, declaration of a state of emergency or derogation from human rights obligations could be considered in assessing the thresholds (Sivakumaran, 2012, p.168)

Though the two thresholds ‘must be present cumulatively’, inference can be drawn from one to the other; for instance, the existence of a ‘highly intense hostility’ may indicate the level of organization (Updated Commentary GC III, para.468).

In its fight against OLF, the Ethiopian government deployed the national defence force and the Oromia Special Police Force (a regional paramilitary force). There is also a de facto  state of emergency in the western and southern districts of Oromia where OLA actively operates. These facts, along with the casualties and destruction as mentioned above are of some help to discern the intensity of violence and might also shed some light on the organization of OLA. Whereas considering the sporadic nature of the violence, OLA’s vehement denial of involving in the casualties, and lack of concrete information that could indicate the ‘highly intense’ nature of the violence so far, it remains difficult to conclude that OLA possesses the requisite level of organization. That, in turn, makes the available facts inconclusive to prove the existence of a NIAC based on the bilateral belligerent relationship between OLA and the government forces.

The effect of the TPLF-OLA alliance 

As mentioned at the outset, the conflict in Tigray between TPLF and federal government forces is a NIAC. It is taking place in the northern part of Ethiopia. Whereas OLA is fighting predominantly in the southern and south-western parts. Though the two conflicts are geographically apart and involve two different rebel groups, the armed groups have a common enemy, i.e., the federal government. Now, the rebels have agreed to ally their forces against their ‘common enemy’. 

Conventionally, the thresholds of NIAC are assessed in each bilateral belligerent relationship between parties to a conflict. However, recently, the ICRC and some scholars have suggested aggregation of the level of violence where two or more organized armed groups form a coalition (ICRC  Report, 2019; Kleffner, 2019). In such circumstances, the threshold of intensity can be assessed on the cumulative violence caused by the armed groups in the coalition provided that the conflict occurs in ‘a geographical and temporal continuum’ (ibid). According to other commentators as well, when organized armed groups join forces  for common purposes or against a common enemy in a geographical and temporal continuum, the level of intensity can be assessed on the aggregated violence (Nikolic et al, 2020; and Chiara, 2021). The baseline to these formulations is that each armed group involved in the conflict must individually meet the threshold of organization. It should also be noted that this new approach is more relevant in the context where the existence of a NIAC is not yet established as regards any of the allied groups. 

In our case, TPLF and OLA regard the government as their common enemy, and militarily overthrowing the government is their shared goal. Arguably, the temporal and geographical considerations might also be proven; particularly, considering the government’s allegation that OLA fighters are spotted in the conflict in Tigray as well as TPLF military personnel are providing training to the OLA. Then again, since there is no conclusive information on the organization of OLA, it will remain difficult to establish a NIAC following the formulation above. In other words, this entails a conclusion that while IHL applies to the conflict between the federal government forces and TPLF, it will not apply to the conflict with OLA. 

In my opinion, such a tricky conclusion will rather lead to a conundrum. For instance, from the perspective of the government, considering the alliance between the belligerent groups, it is infeasible to expect that the government will apply only the law enforcement paradigm with OLA while applying both the law enforcement and conduct of hostility paradigms with TPLF. 

Such intricate circumstances require finding a pragmatic solution that reflects reality. To that, one need to reconsider and give weight to the following facts. On the one hand, there is already an ongoing NIAC between TPLF and the government. On the other hand, though sporadic, OLA has already engaged in active hostilities. Now, the TPLF-OLA alliance is struck to support each other and defeat the government. In view of these, it is important to give weight to the support-relationship the alliance brings about and its implications on the nature of the conflict between OLA and the government. 

In conclusion, considering the military alliance along with other facts as mentioned hereinbefore, that should now be sufficient to trigger the applicability of IHL to the conflict between OLA and the government. 

Author’s Bio

Marishet M. Hamza is a Ph.D. Student at the International Law Department, Graduate Institute of International and Development Studies, Genéve

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.  

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 20^th 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. 

The War in Tigray: Investigating Violations of International Humanitarian Law

Photo Credit: UNFPA/Sufian Abdul-Mouty

Author: Lea Mehari Redae

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

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

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

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

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

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

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

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

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

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

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

Logo of the International Humanitarian Fact-Finding Commission

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                 Raji Gezahegn, Legal Advisor, ICRC Delegation in Ethiopia

Image source: https://thinkrcg.com

   

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

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

The risk of human harm through cyber operations

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

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

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

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

International humanitarian law as a protection framework in cyberspace

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

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

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

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

The way forward: speaking law to power

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

***

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

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

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

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

Photo Credit: U.S. Air Force

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

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

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

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

Cluster Munitions and South Sudan To Date

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

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

Setting the Legal and Policy Framework to Humanitarian Ends

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

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

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

***

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

Soil Contamination Due to Armed Conflicts

By – Rihana Jemal

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

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

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

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

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

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

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

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

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

---

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

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

^[3] .https://youtu.be/6l0pgpszmkU

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

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

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

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

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

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

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

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

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

By Emmanuel Maphosa

Photo Credit: Tom Stoddart Copyright: Getty Images/ICRC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By Yohannes Eneyew Ayalew

Picture credit : Brookings

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

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

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

Defining Cyber Warfare

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

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

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

Conundrums in Applying the Existing IHL norms to cyber-warfare

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

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

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

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

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

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

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

What’s next?

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

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

An opportunity for all Africans interested in writing about IHL

ICRC has organized a competition of best published articles on international Humanitarian Law in Africa. Submit your published articles to enrich the African literature on IHL for a prize of 1000 USD. You can submit your articles that have been published from September 1, 2019 to December 31, 2020.

Refer to the poster below for more information.