Inclusive National Dialogue and Accountability for sexual crimes are central to the path out of the current crises in Ethiopia

By: Dunia Mekonnen Tegegn

Image source:Eduardo Soteras/AFP via Getty Images

Due to the conflict in Ethiopia, women and girls continue to bear the brunt of the cruel and inhuman acts committed by all parties involved in the conflict for the last 16 months. Many have lost their lives, suffered sexual violence, displaced, and starved. Women living with disability, older women, and refugee women have been the target of brutal sexual violence. These crimes are horrific in nature as they represent the level of vengeance and humiliation pursued by actors in the conflict. Reports have highlighted the extent of these violations and implicated all sides to the conflict in war crimes and crimes against humanity.

In the Tigray region of Ethiopia, Ethiopia’s National Defense Force, Eritrean Defense Force as well as Amhara Special Force and its allied militia committed widespread sexual abuse against Tigrayan women. In the initial stages of the conflict, rape cases were reported in Mekele, Ayder, Adigrat, and Wukro hospitals of Tigray. Investigations on human rights in Tigray indicate that Tigrayan women were subjected to attempted rape, gang rape, oral and anal rape, and insertion of foreign objects into the vagina; in addition, they were subjected to ethnic slurs and degrading comments. They were also exposed to unwanted pregnancy and sexually transmitted diseases. Access to humanitarian aid including access to sexual and reproductive health services remains a challenge. Sexual violence was used as a weapon of war and as a deliberate strategy to terrorize, degrade and humiliate the victims. In the most hideous way, Eritrean women and girls fleeing persecution in Eritrea were raped by members of Eritrean Defense Forces and forces allied to the Tigray People Liberation Front in the Tigray region of Ethiopia where they sought refuge. To date, women who were impacted by the conflict continue to be the subject of abduction while on the move.

The number of women who are subjected to sexual violence augmented when the conflict expanded its horizon to the Amhara and Afar regions of Ethiopia. In these two regions, Tigrayan forces committed widespread sexual violence against Amhara and Afari women and girls. In Nifas Mewcha, vicinity of the Amhara region of Ethiopia, women were raped for a nine-day period. Women were subjected to gang rape including in front of their children, physically assaulted, called names and degraded with ethnic slurs, impregnated by their rapists, and suffered mental health problems including anxiety and depression. They were also robbed and deprived of their source of income. Women were unable to access comprehensive post-rape care, including emergency contraception, post-emergency prophylaxis for HIV and sexually transmitted infections. In these two regions, Tigray Defense Forces used sexual violence to demoralize, dehumanize and punish communities. Sexual violence was used in a more premeditated and organized manner arbitrarily but also selectively for combat purposes.

Due to the nature of this crime, the tendency of survivors coming forward with what happened to them in the current context of Ethiopia is limited. There is a likelihood of under-reporting because of the nature of the Ethiopian polity where patriarchy is the dominant view.

Violations of Women’s Human Rights 

Conflicts exacerbate deep-rooted inequalities in any country. The gender discrimination women and girls are subjected to in a society amplifies their victimization during the conflict. Outside conflict, women in Ethiopia faced gender-based violence including marital rape and other evolving forms of violence such as acid attacks, gang rape, and abduction. In Ethiopia, the male is the acknowledged master of his family. Marriage is viewed as a means of strengthening the link between families and ethnic groups. Thus, the role of women in society is that of cementing family ties through bride-wealth and producing children. The cultural perception of women as the property of men has led to a situation where all actors in the conflict used rape as a weapon.

Ethiopia’s constitution provides full and equal dignity for women under articles 25 and 35. Ethiopia’s revised criminal code also provides explicit prohibition of violence against women and girls including rape.  All members of the African Union including Ethiopia are bound to respect the rights protected under the African Charter on Human and People’s Rights. Article 5 of the African Charter prohibits all forms of exploitation and degradation including, slavery, slave trade, torture, cruel, inhuman, or degrading punishment and treatment. Interpretations provided by the African Commission on Human and People’s Rights have directly referred to the application of Article 5 not only to physical and psychological harm but also to the protection of women from sexual violence during armed conflict. As a result of the conflict, Ethiopian women and girls were deprived of the protection they are bestowed with.

It is important to understand that sexual violence is not and should not be considered as an unavoidable outcome of any conflict. It is a crime that is preventable and punishable under International Human Rights Law, International Criminal Law, and International Humanitarian Law. Ethiopia is a party to the Convention on the Elimination of Discrimination against Women (CEDAW). Article 1 of CEDAW defines discrimination against women to include gender-based violence which is violence directed against a woman because she is a woman, or because it affects women excessively. In the context of this definition, rape during conflict is discrimination against women directed at them because of their gender.

CEDAW does not allow States to derogate from Convention obligations during periods of conflict or public emergency. State obligations linger during such periods, including due diligence obligations to prevent, investigate, punish and ensure remedy. Under the convention, state parties are also required to control the activities of domestic non-State actors within their jurisdiction. States also have an obligation to regulate non-State actors under the duty to protect, so they exercise due diligence to prevent, investigate, punish and ensure reparation for the acts of non-state actors. By depriving women of these protections, all actors in the conflict: Ethiopia’s Defense Forces, Eritrean Defense Forces, Tigray People Liberation Front, and allied militia, and Amhara Defense Forces and allied militia committed war crimes. In elaborating on article 2 of CEDAW, General Comment 30 clarifies the application of the Convention to situations of armed conflict including complex peacebuilding and post-conflict reconstruction processes. It outlines the content of the obligations assumed by state parties and further highlights the obligations of non-State actors such as the Tigray People Liberation Front and allied militia and that of Amhara Defense Forces and allied militia. Although these actors cannot become parties to women’s rights instruments in general, in the context they exist in Ethiopia, they have an identifiable political structure and exercised significant control over territory and population during the conflict. Hence,  they are indebted to respect international human rights laws.

On top of the obligations discussed above,  as far as article 12 of CEDAW on adequate standard of living is concerned, General Comment 30 of CEDAW states that state parties have an obligation to ensure psychosocial support; family planning services, including emergency contraception; maternal health services, including antenatal care, skilled delivery services, prevention of vertical transmission and emergency obstetric care; safe abortion services; post-abortion care; prevention and treatment of HIV/AIDS and other sexually transmitted infections, post-exposure prophylaxis including care to treat injuries such as fistula. Under the International Covenant on Economic Social and Cultural Rights (ICESCR), which Ethiopia ratified in 1993, pregnant women have the right to health and essential health services that are free when necessary as part of their right to the highest attainable standard of health. The documented limitations on access to essential health care services in conflict-affected regions of Ethiopia are tantamount to violation of both the CEDAW and the ICESCR.

The Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (The Maputo Protocol) which was ratified by Ethiopia on July 18, 2018, elaborates on the right of women to security. The Maputo Protocol protects women from the violation of their human rights both during peacetimes and conflict times. The protocol also calls on states to protect women seeking asylum and refugee status in their territory. In the context of the conflict in Ethiopia, Eritrean refugee women’s right was violated when members of Eritrea’s Defense Force and Tigray Defense force subjected them to sexual violence.

Article 11(2) of the Maputo Protocol further underlines that women in whatever ethnic group they belong to in a conflict should be provided civilian protection. In utter disregard of this, women belonging to diverse ethnic groups: Tigray, Amhara, Afar were subjected to sexual violence. Ethiopian National Defense Force, Eritrean National Defense Force, Tigray People Liberation Front, allied militia, and Amhara Defense Force and allied militia violated the right of each individual woman to be recognized as a civilian and be provided with such protection.

Impacts of the conflict on women and girls

In addition to the widely reported sexual violence, restricted humanitarian aid, food, access to the internet particularly in Tigray negatively impacted survivors of sexual violence. The lack of medical supplies and trauma kits further characterizes the dire situation in all regions the conflict took place. As investigations indicate, in all places the conflict took place, women who were raped were physically abused and experienced mental health problems. A significant number of girls were also forced to leave their schools early. Access to lifesaving aid including treatment for HIV and STD transmission, contraception, post-exposure prophylaxis as well as psychosocial programs continue to be limited in Tigray. These problems spread widely to the Afar and Amhara regions of Ethiopia after the conflict expanded its reach to these places. Women’s livelihood and sources of income were highly impacted due to the conflict as many women were forced to abandon them.

Researches discussing justice for women impacted by conflicts underline that women who survive rape experience trauma and are usually stigmatized by their own communities. As a result, many women could be reluctant to report rape. Limited safe spaces for women and girls also added misery to the negative experience women and girls had to go through as a result of the conflict. 

A significant number of Tigrayan women who were subjected to sexual violence fled to Sudan, where the conditions of women particularly in Darfur, the Nuba Mountains, and along the Blue Nile are still impacted by the prolonged civil war and ongoing governance challenges. An increase in the number of women who migrated to neighboring countries including Sudan was documented after the conflict expanded its reach to Amhara and Afar.

Calls to actions

As it stands now, Ethiopia’s priority should be its people, the majority of whom are women and girls. The plight of women and girls can only be addressed through broader efforts including effective law enforcement, swift corrective and accountability measures, and a sit down with all concerned actors. It is also important that Ethiopia’s post-conflict justice priorities for women and girls focus not only on civil and political rights but also on economic, social, and cultural rights. 

In the short run, the following critical actions need to be taken

1. End the pain and suffering of women, and girls through pledging for unconditional ceasefire, and arms embargo; design effective disarmament, demobilization and reintegration processes and ban arms proliferation in the different regions of Ethiopia;  
2. Take appropriate legal and institutional measures to protect women and girls at risk of sexual violence, including internally displaced and refugee women belonging to affected  ethnic groups;
3. Take appropriate legal, institutional, and financial measures to ensure the provision of comprehensive services for survivors of sexual violence including but not limited to medical, psychological, and social services necessary for their rehabilitation and reintegration with their community;
4. Establish multipurpose community centers that link immediate assistance to economic and social empowerment and reintegration, and mobile clinics in places where the conflict ensued;
5. Mitigate the costs of the war on women and girls through collaboration with civil society.
6. Avail women’s rights defenders and experts working with survivors of sexual violence with counseling sevices and on job trainings to help them cope with stress and trauma. 

In the long run, the following actions need urgent attention

1. Collaborate with local and international fact-finding missions to ensure that all perpetrators of sexual and other violence against women during the conflict are properly identified and prosecuted;
2. Build the capacity of the judiciary in Ethiopia including in the context of transitional justice mechanisms, to ensure its independence, impartiality and integrity including through technical cooperation with experts in the area. If and when possible, constitute a separate adhoc commission that can adjudicate cases of sexual violence, and design non-judicial remedies such as truth commissions and reparations;
3. Protect women’s rights defenders from State or non-State attacks that undermine their equal and meaningful participation in political and public space;
4. Ensure that legislative, executive, administrative and other regulatory instruments do not restrict women’s participation in the prevention, management and resolution of the conflict. Increase the number of women commissioners under the newly established Commission for  National Dialogue;
5. Promote inclusion and transparency under the National Dialogue Commission. Constitute an advisory committee for the the newly established Commission for  National Dialogue and include survivors of sexual violence in the discussions;
6. Plan specific interventions to contribute to opportunities for women’s economic empowerment including through promoting their right to education.  

Dunia Mekonnen Tegegn is a Human Rights Lawyer and Gender Equality Advocate.She has previously worked as a Human Rights Officer in Addis Ababa in the Africa branch of the UN High Commissioner for Human Rights. She also worked as a Program Officer on Ending Violence against Women and Girls at UN Women and as an Alternative Care Expert with UNICEF. Dunia holds a Master of Laws in National Security from Georgetown University Law Center and is a member of the Pan African Lawyers Union (PALU), the Ethiopian Bar Association, and the Ethiopian American Bar Association in Washington DC.

Webinar on The Role of the International Humanitarian Fact-Finding Commission in Ensuring Respect for International Humanitarian Law

Esteemed followers of Addis Ababa University IHL Clinic,

The clinic has organized a webinar on the “Role of the International Humanitarian Fact-Finding Commission in Ensuring Respect for International Humanitarian Law”. On this grand event, the President and First Vice-President of the International Humanitarian Fact-Finding Commission will be presenting. All interested are cordially invited to attend the program on the coming Friday afternoon at 4:30 PM Ethiopian time.

Kindly pre-register at https://forms.gle/mPLJcKD6seKxUgNg8

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The ‘Axum Massacre’ and the Use of Lethal Force Outside of Hostilities

Author: Wubeshet Tiruneh

Image Source: https://www.globalsecurity.org/military/world/ethiopia/images/axum-ap-image02.jpg

On 10 May 2021, the Office of the Attorney General of the FDRE issued a press release on its finding on the alleged massacre in Axum. The Office concluded that the great majority of those killed in Axum were members of the fighting force of the TPLF and they were killed during the fighting. Indeed, the reports of the Human Rights Watch, the Amnesty international, and the Ethiopian Human Rights Commission similarly indicated that TPLF forces and other civilians attacked Eritrean forces, and that there was a fighting between them in Axum on 28 November 2020. However, according to the reports of these human rights organizations, many of the victims were killed and wounded after the fighting had stopped, in what the Human Rights Watch report called ‘apparent retaliation’.

In a statement issued regarding the findings of the Office of the Attorney General, Human Rights Watch slammed the findings and questioned how ‘the Ethiopian government distinguishes between combatants and civilians’. The statement further highlighted that the Office of the Attorney General ignored civilians killed and wounded after the fighting had stopped, and reminded the Office and the government that IHL prohibits targeting civilians, even if they had participated in fighting in the past. Amnesty international similarly issued a statement expressing its ‘concerns that the actual purpose of the investigation is to cover up the massacre by claiming that those killed were actually TPLF.’

The concern of the Human Rights Watch and the Amnesty International is legitimate given that  the finding of the office of the Attorney General is mainly related or confined to those who were killed during fighting or hostilities. It did not address or cover those who were killed and wounded once the fighting or the hostilities had ended or significantly subsided in that specific incident. Indeed, on 21 May 2021, the Office of the Attorney General issued another statement in which the Office admitted that  there have been killings in the city after the fighting had stopped. However, the statement claimed that some of those who have been killed in the city are ‘irregular combatants’. 

This triggers a question whether and in what circumstances can the armed forces of a state can legitimately use a lethal force once the fighting had stopped within the context of non-international armed conflict. Can they justify the use lethal force outside of active hostilities by claiming that those individuals against whom force is used are fighters or civilians who participated in hostilities?

The Use of Lethal Force Outside of Actual Hostilities

The legality of the use of lethal force in the context of armed conflict is determined mainly based on the status of a person or the object against which it is used. It is lawful as far as the attack is directed against combatants, fighters and civilians who are directly participating in hostilities. The cardinal obligation of states to non-international armed conflict is to distinguish between civilians and fighters and direct their attacks against fighters. The use of lethal force or directing attack against civilians is prohibited and could constitute war crime unless and to such time they are directly participating in hostilities.

The question, however, is whether the authorization to attack or use lethal force against fighters is limited in the context hostilities or the entire duration of non-international armed conflict. This is important because there is a tendency to use lethal force once the hostility has ended and claim that the person against whom the force is used is a TPLF fighter. The traditional view was that fighters can be targeted anytime in the context of armed conflict. However, currently, there is a growing consensus that once the hostilities have ended or significantly subsided and the armed forces of states controlled the area, lethal force should not be used unless it is absolutely necessary and proportional. Anyone, including fighters, cannot be subjected to lethal force except to respond to an imminent threat to life or bodily integrity.

There are two justifications for this. First, under international humanitarian law, there is no military necessity to use lethal force and kill or wound an individual while he/she can be reasonably apprehended without causing undue danger. General Comment no. 3 of the African Commission, for instance, reminds us that ‘[w]here military necessity does not require parties to an armed conflict to use lethal force in achieving a legitimate military objective against otherwise lawful targets, but allows the target for example to be captured rather than killed, the respect for the right to life can be best ensured by pursuing this option.’ (para. 34)

Second, once the hostilities have ended or significantly subsided, the use of force, even against fighters, will become a law enforcement issue, not a conduct of hostilities issue, and governed by rules derived from international human rights law. International human rights, particularly rules relating to the prohibition of arbitrary killing, requires states to use lethal force as a measure of last resort. They should attempt to make arrest or use less or non-lethal force before resorting to lethal force. Armed forces of a state can resort to a lethal force only when it is necessary to respond to an imminent threat to life. Even in the presence of a serious threat, the force used should not exceed the amount strictly needed for responding to the threat. So, the status of a person as a fighter cannot justify the use of lethal force outside of hostilities.

According to the finding of the Office of the Attorney General, the fighting took place in the mountains area of Axum from 6 A.M to 2 P.M until ENDF’s help had arrived and TPLF forces had backed to the city. The use of force by the Eritrean force in this specific context will be legitimate if it is targeted against fighters and civilians who are directly participating in hostilities. Parties to the conflict can direct their attack or use lethal force against any legitimate military target in the context of hostilities.

However, the Eritrean forces continued using lethal force and killed and wounded many individuals in the city after the fighting had stopped. The use of force in this context cannot be justified by claiming that those individuals against whom force is used are fighters or civilians who participated in hostilities. The legality or otherwise of the use of lethal force in such context does not depend on the status of a person against whom the force is used. Instead, it depends on whether it is absolutely necessary and proportional to respond to serious and imminent threats to life.

Multiple reports, including the detailed report of the Ethiopian Human Rights Commission, indicated that Eritrean forces used lethal force against unarmed individuals, by going house to house, and some after being apprehended. There were no imminent and serious threat posed by these individuals against Eritrean forces or anybody else. Even if these individuals had been suspected of being a TPLF fighter or civilians who directly participated in hostilities, they could have been easily apprehended without causing any danger. The use of lethal force by Eritrean forces against these individuals in Axum was therefore neither necessary nor used as a last resort.

The Extraterritorial Human Rights Obligation of Eritrea

The restriction on the use of lethal force outside of hostilities is derived from the obligation of states to respect the right to life or not to arbitrary kill individuals under international human rights law. This triggers a question whether Eritrea has an obligation under international human rights law to respect the right to life of individuals in Tigray, Ethiopia, where its forces are operating. Indeed, State obligation under international human rights law is mainly territorial with regard to individuals living within their respective borders. However, it could extend extraterritorially whenever they exercise jurisdiction outside of their borders through control over territory or person, regardless of the legality of the control.

Particularly in the context of military operations abroad, General comment no 31 of the Human Rights Committee states that human right obligation ‘applies to those[individuals] within the power or effective control of the forces of a State Party acting outside its territory.’ (para. 10) Similarly,  General Comment no 36 noted that states have an obligation to respect the right to life of individuals ‘located outside any territory effectively controlled by the State whose right to life is nonetheless affected by its military or other activities in a direct and reasonably foreseeable manner.’ (para. 63).

Since the start of the military confrontation between the Federal government of Ethiopia and TPLF, Eritrean forces are operating in some parts of Tigray, Ethiopia, under the consent or acquiescence of the Federal government. Accordingly, Eritrea has extraterritorial human rights obligation, including the obligation to respect the right to life, regarding individuals living in territories it controls or individuals over whom it is exercises power and authority as part of its military presence in Tigray, Ethiopia. Eritrea should therefore operate in a manner that respects not only international humanitarian law but also international human rights law.

Conclusion

The Office of the Attorney General should have therefore employed different standards in determining the legality of the lethal force used within and outside of the context of fighting. The use lethal force in the context of hostilities or fighting is legitimate if it is directed against fighters and civilians participating in hostilities. However, the use of lethal force after the fighting had stopped cannot be justified by claiming that the person against whom the force used is a fighter, even in the context of an ongoing non-international armed conflict. Anyone, including fighters and civilians who directly participated in hostilities, cannot be subject to the use of lethal force unless it is absolutely necessary and proportional to respond to serious and imminent threat.

Wubeshet Tiruneh is a Ph.D. Candidate in International Law at the Graduate Institute, Geneva. He can be reached at wubeshet.tiruneh@graduateinstitute.ch

A CALL FOR JUSTICE AND ACCOUNTABILITY FOR SURVIVORS OF RAPE IN THE TIGRAY CONFLICT OF ETHIOPIA

Author: Dunia Mekonnen Tegegn

Image source: https://www.tghat.com/wp-content/uploads/2021/01/ezgif.com-gif-maker.png

On Nov 3, 2020, a conflict out broke between the Tigray Liberation Front and the Ethiopian National Defense Force when the TPLF assaulted the Northern command. Due to the unfolding conflict, women were and have continued to be the victims of sexual abuse. The gender discrimination women are subjected to in their society before the conflict contributed to their victimization during the conflict. Even though the Ethiopian Constitution provides full and equal dignity with men, the reality of women’s lives is very different. Reports indicate that in the past four months, 108 cases of rape have been reported in Mekelle, Ayder, Adigrat, and Wukro hospitals.

In Ethiopia, the male is the acknowledged master of his family. Marriage is viewed as a means of strengthening the link between families and ethnic groups. Thus, the role of women in this society is that of cementing family ties through bride-wealth and producing children. The cultural perception of women as the property of men has led to a situation where warring factions use rape as a weapon. Researches discussing justice for women impacted by conflicts underline that women who survive rape experience trauma and are usually stigmatized by their own communities. As a result, many women could be reluctant to report rape.

The Tigray Conflict and Violations of Women’s Human Rights

The most authoritative gender-specific treaty, the Convention on the Elimination of Discrimination against Women (CEDAW) was ratified by Ethiopia in 1981.CEDAW defines discrimination against women to include gender-based violence; that is, violence directed against a woman because she is a woman, or that affects women excessively. It includes acts that inflict physical, mental, or sexual harm or suffering, threats of such acts, coercion, and other deprivations of liberty. In the context of the definition provided under article 1 of CEDAW, rape during conflict is discrimination against women.

Article 5 of CEDAW calls on state parties to take all measures to fight social and cultural patterns of men and women to eliminate social prejudice and stereotyped roles to protect women from the abuse of any kind that happens within the family, in work, and in the context of armed conflicts including through laws that implement protection from sexual violence and also by facilitating services to those who are subject to sexual violence. In addition to this, CEDAW is very specific, particularly as far as the government’s obligation to provide fully comprehensive services to contribute to gender equality and women’s empowerment. These services include medical and psychological treatment, and shelter for those who are subject to sexual violence.

The CEDAW Committee also affirmed that implicit in CEDAW and, in particular, article 2(c), is a right to an effective remedy. It explained that for a remedy to be effective, adjudication of a case involving rape should be dealt with in a fair, impartial, timely, and expeditious manner. In the context of the conflict in Tigrai, although non-state actors cannot become parties to CEDAW, the CEDAW Committee has stressed that under certain circumstances, in particular where an armed group with an identifiable political structure exercises significant control over territory and population, non-state actors are indebted to respect international human rights laws.

According to comments provided by the CEDAW committee what constitutes accountability to end violence against women (VAW) includes both obligations of means or conduct and obligations of results. It highlights that ending violence against women in all contexts requires efforts that include for instance state’s duty to abstain from invading the rights of women. It also includes actions that are positive towards fulfilling and realizing women’s rights through the provision of relevant services. Under article 2 of CEDAW, the obligation to respect, the obligation to protect, and the obligation to fulfill are discussed. Significant obligations that require the attention of the ruling party in Ethiopia are obligations to protect and to fulfill.

The obligation to protect, is the obligation of a government to defend women’s rights against infringement by third parties not affiliated to the government. In addition to CEDAW, all members of the African Union including Ethiopia are bound to respect the rights protected under the African Charter on Human and people’s Rights. The African Charter demands the eradication of discrimination against women and calls for the protection of women’s rights as guaranteed under international human rights frameworks. The Charter’s clear reference to international women’s rights instruments is very strong and provides more protection to women in Africa including their protection from rape. More specifically article 5 of the charter prohibits all forms of exploitation and degradation including slavery, slave trade, torture, cruel, inhuman, or degrading punishment and treatment. Interpretations provided by the African Commission have directly referred to the application of article 5 not only to physical and psychological harm but also to those, which relate to the individual’s personhood. Therefore, it is submitted that Article 5 of the Charter guarantees the protection of women from rape during conflict. 

Article 3 of the Maputo Protocol also enshrines that every woman has the right to dignity inherent in human beings and to respect as a person and to the free development of her personality. This protocol also clearly prohibits violence against women including women’s protection from physical, sexual, psychological, and economic harm. From the definition provided by the Protocol, it is clear that such protection also includes protection from rape during an armed conflict.

The Maputo Protocol also protects women from the violation of their human rights both in their private and public life; during both peacetime and conflict. The protocol stipulates that states are under an obligation to protect women seeking asylum and refugee status because of a given armed conflict by categorizing acts that have happened during the conflict including rape as a war crime. 

Article 11(2) of the Maputo Protocol further underlines that women in whatever ethnic group they belong in a conflict should be provided civilian protection from violence. Here, the Maputo Protocol is very clear that rape during conflict constitutes an international war crime as stipulated under the Geneva Conventions and the Rome Statute of the ICC. The Protocol also positions sexual violence including wartime rape as genocide and requires African states when in conflict to adhere to the principles of international humanitarian law. These principles have been violated by parties to the conflict in Tigray. 

Humanitarian access and restricted resources for service providers have reduced the availability of essential health care and support for survivors of sexual violence, including sexual and reproductive health care. Access to lifesaving aid, such as dignity kits, post-rape kits, treatment to prevent HIV and STI transmission and psychosocial programs also remain critical.

The ruling party, therefore, needs to take appropriate measures to ensure that violent crimes are promptly reported and women are provided essential services. The ruling party therefore should;

1. Collaborate with local and international fact-finding missions to ensure that all perpetrators of sexual and other violence against women during the conflict are properly identified and prosecuted to deter the further commission of violent acts not only in Tigray but also in other parts of Ethiopia where violent crimes involving women are documented.
2. Take appropriate legal, institutional, and financial measures to ensure the provision of comprehensive services for survivors of sexual violence including but not limited to medical, psychological, and social services necessary for their rehabilitation and reintegration with their community. 
3. Facilitate improved funding and support to expand the provision of vital services including one stop centers and safe homes, humanitarian contact, and language access for reporting violent crimes.
4. Ensure justice and accountability for rights violations and grant other relevant remedies including compensation.[1]

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[1] Recent reports indicate that a task force been established focusing on this particular issue and the writer believes this article could contribute to such work and agenda, https://www.nwaonline.com/news/2021/feb/13/ethiopian-task-force-inquiry-confirms-tigray/

Dunia Mekonnen Tegegn is an Ethiopian Human Rights Lawyer and Gender Equality Advocate.She has previously worked as a Human Rights Officer in Addis Ababa in the Africa branch of the UN High Commissioner for Human Rights. She also worked as a Program Officer on Ending Violence against Women and Girls at UN Women and as an Alternative Care Expert with UNICEF. Dunia holds a Master of Laws in National Security from Georgetown University Law Center and is a member of the Pan African Lawyers Union (PALU), the Ethiopian Bar Association, and the Ethiopian American Bar Association in Washington DC.

Online Speaker Series: International Humanitarian Law

Esteemed followers of the Addis Ababa University IHL Clinic,

Canadian Red Cross, in partnership with the University of Ottawa, invites you to its IHL NOW 2021 lecture series taking place from May 31-June 4th.

The session starts out with an introductory lecture to IHL by Professor Marco Sassòli, well known by many of you and world renowned in this field.

It is followed by a career panel on where speakers will present on challenges in IHL in relation to the conflict in Ethiopia; the conflict in Yemen; the protection of the environment during armed conflict, and conflict-related sexual violence.

On Thursday, June 3rd, 8:00 PM evening Ethiopian time Daniel Mekonnen a Human rights lawyer and Lea Mehari the Founder of Addis Ababa University International Humanitarian Law Clinic will be presenting on the Tigray crisis in light of IHL.

The link for the registration is found at
https://www.redcross.ca/how-we-help/international-humanitarian-law/conferences-trainings-and-events/ihl-now-2021

Kind regards,
Yosalem
IHL Clinic Director

HUMANITARIAN NOTIFICATION SYSTEMS & INTENTIONAL ATTACKS AGAINST HOSPITALS

by Bailey R. Ulbricht, Allen S. Weiner | Apr 15, 2021FacebookTwitterEmailLinkedInPrint

by Bailey R. Ulbricht, Allen S. Weiner | Apr 15, 2021

Editor’s note: The following post is part of the Articles of War Symposium on Beth Van Schaack’s book, Imagining Justice for Syria. The symposium offers a platform for the contributing experts to carry the conversation on justice and accountability in Syria forward.

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Despite the long-standing and widespread norm to the contrary, intentional attacks against medical facilities and their personnel in conflicts around the world have increased over the past decade. In Sudan, for example, the government army was accused of deliberately bombing hospitals—including one of the few remaining hospitals in rebel-held territory during the civil war—and schools. In Central African Republic, over 40 medical facilities operated by Médicines Sans Frontièrs (MSF) were intentionally attacked in 2017, and the attacks continued into the following year. Perhaps nowhere have attacks been more rampant than in Syria, where over the course of the ten-year conflict, at least 923 medical workers have been killed in at least 595 documented attacks on medical facilities. Such deliberate attacks contribute to the “humanitarian catastrophe” that Beth Van Schaack describes befalling Syria in her recent and powerful book, Imagining Justice for Syria.

These attacks pose major challenges to the operation of Humanitarian Notification Systems (HNSs), which were set up in various conflicts to share information with warring parties about the locations and movements of both humanitarian sites and workers. These systems are rooted in the assumption that the warring parties will use the information they receive to assist in complying with their duty not to attack humanitarians. We identify a number of challenges such deliberate targeting poses for HNSs—including issues concerning the systems’ purposes, list distribution, and vetting of humanitarian entities. Ultimately, we believe that improvement in the operation of HNSs is possible, but it will require collaborative engagement of humanitarians, international organizations, policymakers, and military leaders, as well as a willingness to re-examine long-held assumptions about how to safeguard humanitarians in times of war.

The Protection of Medical Facilities Under International Humanitarian Law

The protection of medical workers and their facilities is one of the oldest principles of the law of war. It dates back to the first Hague Regulations of 1899 and serves as a bedrock for modern international humanitarian law (IHL). Its purpose was then, as it is now, to protect field medics who care for the wounded and pose no immediate tactical threat. The immunity of medical workers also reflects the belief that medical care preserves dignity in death and suffering, regardless of which side a person fights on. Under modern law, it is a war crime to deliberately target or recklessly strike or attack medical workers and identifiable medical facilities in wartime.

Notwithstanding this clear-cut norm, as mentioned above, attacks on medical personnel and facilities have been rampant. Former U.N. Secretary-General Ban Ki-Moon decried the rising number of attacks in a U.N. Security Council meeting in May 2016. Speaking alongside him, former MSF President Joanne Liu fittingly referred to the situation as “an epidemic of attacks.”

There are different theories for why warring parties attack medical facilities and their personnel. Scholars have pointed to a broader wartime strategy of punishing civilians for their presumed political affiliations, dissuading medical workers and humanitarians from treating perceived enemies, ridding territory held by opposing forces of civilian infrastructure, or depriving civilians of the means to survive, thereby forcing them to flee or accept that party’s dominance.

Humanitarian Notification Systems  

To help warring parties avoid striking medical facilities and their personnel, humanitarian notification systems emerged from military deconfliction processes to notify warring parties of humanitarian “locations, activities, movements, and personnel.” With use dating back to at least the early 2000s, HNSs are now deployed in various conflicts to provide warring parties with necessary data of medical facilities and their personnel, often in the form of GPS coordinates. Participation in the system is voluntary on the part of both warring parties and humanitarians, however, and critically, the systems do not guarantee humanitarian protection.

There are varying models of HNSs administered by different entities. The U.N.’s Office for the Coordination of Humanitarian Affairs (OCHA), for example, runs centralized humanitarian notification systems in both Yemen and Syria, collecting fixed location and movement coordinates from humanitarian entities and disseminating them to some participating parties. In Yemen, recipients include the Saudi-led coalition; in Syria, they include the United States, Turkey, and Russia (though Russia recently backed out of the system). Importantly, OCHA does not verify the site submissions—including whether or not a site is indeed humanitarian and therefore protected under IHL. Instead, vetting a site’s status is the responsibility of warring parties, who are responsible for their own IHL compliance.

Beyond OCHA, several other entities also run HNSs. These include States, which rely on national humanitarian agencies to collect location data from humanitarian sites and disseminate it to the armed forces of that State, as well as often allied States operating in the area. Humanitarian groups such as the International Committee for the Red Cross (ICRC) and MSF also operate their own HNSs. In these ad-hoc systems, the ICRC and MSF work directly with warring groups in areas where they operate. The ICRC and MSF notify the warring groups of their humanitarian activities with a view towards ensuring protection. These systems often involve face-to-face meetings and can include non-State actors.

The Challenges Posed to Humanitarian Notification Systems

The increase in deliberate attacks against medical facilities over the past decade presents significant challenges to HNSs. HNSs are only as effective as the warring parties’ willingness to comply with IHL. Without compliance, HNSs are ineffective at best; at worst, they provide target lists for parties intent on attacking medical sites and personnel. This phenomenon demands a full understanding of the challenges posed by the rise in intentional attacks. We have identified a non-exhaustive list of these challenges below and grouped them into three categories: definition of purpose, list distribution, and humanitarian entity vetting.

Problem Area One: What Are the Purposes of an HNS?

The first set of challenges concerns whether the purpose of HNSs should change depending on a warring party’s (un)willingness to comply with IHL. In Syria, for example, the purpose of OCHA’s notification system as publicly stated is to “mitigate the risks, to the extent possible, of [humanitarian entities] being targeted / hit by an air strike.” But the persistence of strikes on humanitarian sites like hospitals—despite OCHA’s implementation of its HNS—highlights questions about the intended purpose. What functions should an HNS serve in the face of a warring party’s disregard for the law? And how could an HNS be redesigned to better advance those functions?

Protection of Humanitarian Entities?

A traditional view—reflected in OCHA’s system in Syria—is that HNS serves to enhance the protection of humanitarian entities. If this is the purpose, one possible change in HNS operation could be to exclude any party that intentionally targets medical facilities from access to the disseminated list. Or the exact location of humanitarian sites could be obscured in some way to protect them from attack. Other changes could involve using HNS information to discourage warring parties from attacking humanitarian sites by increasing the cost for such actions; for example, HNS information could be used to increase diplomatic pressure or exert public condemnation (“naming and shaming”).

Accountability?

Yet if warring factions repeatedly intentionally target humanitarian entities, it is far from clear how HNS can possibly hope to achieve the goal of protection, given that the legal obligation lies with the parties themselves. In such circumstances, HNS could prioritize accountability rather than protection as its purpose. Enhancing accountability would focus on data tracking and storage. This includes, for example, systematic tracking and storage of confirmation that warring parties received the coordinate lists of protected locations. Such evidence could be used to counter potential claims that a given attack was inadvertent. Admittedly, it is not clear what accountability would actually mean in this context of HNS. One view of accountability contemplates formal judicial proceedings, which would take place months, if not years, after the strikes occurred. Another view is that accountability could happen in real time in the form of naming and shaming.

We must also consider possible implications for humanitarian neutrality, a key principle requiring humanitarians to avoid favoring any side in an armed conflict. If an HNS were to be used to attribute a strike to a specific party, would this undermine the neutrality of the organization administering the list? Would humanitarian organizations be hesitant to participate in a notification system that could be used in a manner that calls out warring parties’ responsibility for IHL violations? And would warring parties refuse to participate in an HNS if they feared that it would be used in this way?

Problem Area Two: Who Gets the List?

The second set of challenges involves the distribution of protected location lists to warring parties if some are suspected of violations. Regardless of the purpose of an HNS, distribution to a party that subsequently intentionally targets hospitals can undermine the system’s functionality. Such distribution could sow distrust among humanitarians in the system. In worst case scenarios, it may lead to humanitarians opting out of the system altogether.

The first issue within this set of challenges is how non-compliance is defined. Is it only when a party commits intentional strikes against humanitarian entities? And if so, how would the intention of a warring party be determined? Must multiple strikes occur before a warring party is considered “non-compliant”? Could a party gain re-entry? These parameters would need to be worked out, likely by the list administrator, its participants, and/or an international body that could set guidelines for HNSs.

A closely connected issue is who decides whether a party is non-compliant. One option would entail leaving it in the hands of the list-controller, the entity that collects and disseminates the information. However, this option could impinge the list controller’s perceived or actual neutrality. This encroachment on neutrality—perceived or otherwise—risks sowing distrust among participants, causing some to decline participation. Instead, one could envision an independent review body in which a diverse set of experts receive evidence of strikes and make determinations of non-compliance. Another option would be to empower the humanitarians to make this decision themselves. If they receive reports that a particular entity is targeting hospitals, they could opt out of sending their coordinates to that specific entity. Perceived and actual biases, information access, and scope of mandates are relevant concerns with respect to all of these options.

A final, broader issue under this set of challenges connects back to the first problem area. If non-compliant members are removed from the system, does that contradict the very purpose of HNS?

Problem Area Three: Should Sites Be Vetted?

Under IHL, a humanitarian site is no longer protected when it is used to commit an act harmful to an enemy—such as serving as a weapons storage facility or a hideout for an armed group. Assertions that a humanitarian site is being used for hostile purposes is often presented as justification for attacks against it. Both Russia and Syria, for instance, have invoked this reasoning numerous times in response to allegations of war crimes.

To prevent misuse of humanitarian sites, and to refute false claims of such misuse, should list administrators vet humanitarian entities before including them in a notification system? Doing so could help refute false allegations, but it raises concerns because legal responsibility for IHL compliance—including confirmation a purportedly humanitarian entity is a legitimate target—is the responsibility of warring parties, not list administrators. Those involved in administering the lists, such as OCHA, might also credibly contend that they lack the resources and intelligence tools that would enable them to vet proposed humanitarian sites, much less conduct continual re-assessment as conditions on the battlefield change.

There are also concerns about the decision-making process. As with the issues raised in the previous problem area, what standards would be used to vet humanitarian entities? Who would decide whether or not an entity is in compliance? How frequently must these determinations be made, given the near-constant changing nature of conflict settings?

Next Steps: Addressing These Challenges

These challenges are serious but not insoluble. Addressing them will require creative, collaborative thinking, and willingness to rethink the design of HNS processes in situations where warring parties do not comply with IHL. Making progress will require bringing together stakeholders from different HNSs—including humanitarians, international organizations, policymakers, and military leaders—whose varying perspectives and interests can present solutions, along with buy-in to those solutions.

There is a cure to the epidemic of intentional attacks against healthcare facilities. But it will require collaboration and a willingness to question long-held assumptions about how to safeguard humanitarians in times of war.

***

Allen S. Weiner is Senior Lecturer in Law and Director of the Program in International and Comparative Law at Stanford Law School and serves as Director of the Stanford Center on International Conflict and Negotiation.

Bailey Ulbricht is a second-year law student at Stanford Law School, where she focuses on international humanitarian law, human rights law, and U.S. foreign policy.

***

Other Posts in the Symposium

• Beth Van Schaack’s Imagining Justice for Syria by Winston Williams
• Battlefield Detention, Counterterrorism, and Future Conflicts by Dan E. Stigall
• Strengthening Atrocity Cases with Digital Open Source Investigations by Alexa Koenig & Lindsay Freeman
• The Security Council Veto in Syria: Imagining a Way Out of Deadlock by Philippa Webb
• Universal Jurisdiction Investigations and Prosecutions: Syria by Alexandra Lily Kather

See also Beth Van Schaack’s book, Imagining Justice for Syria and her earlier Articles of War post with the same title.SUBSCRIBESearch for:RELATED POSTS

Strengthening Atrocity Cases with Digital Open Source Investigations

by Alexa Koenig, Lindsay Freeman

April 1, 2021

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Battlefield Detention, Counterterrorism, and Future Conflicts

by Dan E. Stigall

March 24, 2021

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Beth Van Schaack’s Imagining Justice for Syria

by Winston Williams

March 17, 2021​

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Imagining Justice for Syria

by Beth Van Schaack

August 25, 2020FacebookTwitterEmailLinkedInPrint

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The right to health in armed conflict

Author: Yoseph Genene

photo credit: https://www.icrc.org/en/document/enhancing-protection-armed-conflict-throughdomestic-law-and-policy-overview-report

The dramatic scene that went viral on the media in 2019, as some compared it with ‘Like Moses parting the Red Sea’, showing thousands of  demonstrators protesting a controversial extradition bill in Hong Kong; letting an ambulance passing through a sea of people as the crowd parts way for the medical emergency. This video for sure will restore your faith in humanity. Even though IHL is to be applied during an armed conflict, humanity is the common denominator here. Because in IHL, the ultimate purpose is to protect the victims of armed conflicts and regulate hostilities based on a balance between military necessity and humanity.

The right to health was first articulated in the WHO Constitution (1946) which states that: “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being…”. The preamble of the Constitution defines health as: “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”.

The 1948 UDHR article 25 mentioned health as part of the right to an adequate standard of living. In 1966, years after passage of the UDHR, the UN proposed another treaty that includes health care: the Covenant on Economic, Social and Cultural and Rights (CESCR). Article 12 of the CESCR further clarified “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” “Health” in this context is understood as not just the right to be healthy and have health care, but as a right to control one’s own body, including reproduction. Article 12 goes on to require that “states must protect this right by ensuring that everyone within their jurisdiction has access to the underlying determinants of health, such as clean water, sanitation, food, nutrition, and housing, and through a comprehensive system of health care, which is available to everyone without discrimination, and economically accessible to all.” The right to health framework is set forth in general comment No. 14 of the Committee on Economic, Social and Cultural Rights, which interprets the right to health and mandates States to respect, protect and fulfill the right to health of everyone, including persons affected by and/or involved in conflicts.

Armed conflict is one of the circumstances in which health care delivery is most needed. Despite this fact, attacks on and interference with health care services, providers, facilities, transports, and patients in situations of armed conflict pose huge challenges to health care delivery.

In the world`s youngest nation South Sudan, not only hundreds of thousands of people have been effectively denied lifesaving assistance; but also, patients murdered in their beds in the town of Malakal, upper Nile state. A hospital in Leer, Unity state, was “thoroughly looted, burned and vandalized”. The MSF compound in Bentiu, capital of Unity state was also looted amid heavy fighting.

In the neighbor Ethiopia, in the recent situation in Tigray region, health facilities have been looted, vandalized, and destroyed in a deliberate and widespread attack on health care, ambulances have been seized by armed groups, and many health facilities have few or no remaining staff. Some have fled in fear; others no longer come to work because they have not been paid in months.

In Libya, on 18 February 2018, a woman in labor and her unborn child died on their way to the Wehda hospital, after armed men affiliated with the Libyan National Army at the Kirsa checkpoint, west of Derna, delayed their passage. Such acts are in breach of the obligation of parties to the conflict under IHL to ensure that adequate medical care is provided to the wounded and sick as far as practicable and with the least possible delay.

Also in Libya, in 2011 uprising discriminatory practices were frequently employed. Cars were stopped to prevent patients belonging to opposing ethnic groups reaching hospitals. IHL focuses on impartiality in responding to individuals in immediate need of care rather than on the structure and availability of services. IHL would forbid turning away a woman in labor based on her ethnic or political affiliation, it does not address entrenched practices that limit the availability, accessibility, and quality of facilities and services to members of her group and may make it dangerous for her to seek care. International Human Rights Law (IHRL) can assist in powerfully addressing these infringements.

The application of the general International Human Rights Law (IHRL) in an armed conflict is no more a debate. As settled by the ICJ, it will play a vital role protecting the right to health of individuals by complementing IHL which is the special law which applies in an armed conflict.

IHL has provided a framework for assuring protection and respect for medical personnel, medical facilities, and ambulances, as well as the wounded and sick, in IAC and NIAC.

The right to health has been interpreted as consisting of key entitlements and state responsibilities, including the interrelated and essential elements of availability, accessibility, acceptability, and quality of health care services, facilities, and goods.

Only in recent years has the importance of the right to health in war and other situations of political violence begun to develop. The first breakthrough likely came in a 2013 report by the Special Rapporteur on the Right to Health, Anand Grover. The report recognized that insecurity often limited states’ ability to ensure the resources needed to maintain access to health but explained that the requirement of progressive realization remained in place, requiring “concrete steps towards the full realization of the right to health to all, without discrimination and regardless of the status of persons as combatants or civilians.” His report was soon followed by another report by the OHCHR on economic, social and cultural rights in armed conflict, with a specific focus on the rights to health and to education. In which requires states to pay particular attention to persons rendered vulnerable by conflict, including internally displaced, women, children, older persons and persons with disabilities, among others. Further, to address marginalization arising from social, political and economic exclusion and discrimination.   

 

IHL remains a critically important set of rules through which to address obligations with respect to health in armed conflict, with IHRL acting as a powerful complement to it. In circumstances where no armed conflict exists, but where health workers, facilities, patients, and ambulances are subject to threats, attacks, and other forms of interference and denial, IHRL fills an important gap.

As IHRL has been contributing to ensure the interests and needs of the powerless and the vulnerable, also in time of  armed conflict and in time where there`s a debate whether the situation is an armed conflict or law enforcement,  the application of IHRL will address the powerlessness experienced by those seeking care and those trying to provide it, across all conflict settings.

• 

Yoseph Genene is an undergraduate student at the School of Law, College of Law and Governance Studies, Addis Ababa University. He can be reached through the email address geneneyoseph@gmail.com or twitter @geneneyoseph

Webinar Series on Semi colonialism

Centre for International Legal Studies Jindal Global Law School (JGLS) and Addis Ababa University IHL Clinic have co-organized a Webinar series entitled “Semi-colonialism and International law” for Spring 2021. The webinar series features distinguished scholars from different continents. The topic of each webinar, presenters, moderators, and time schedule is provided below.

The registration link is available at https://bit.ly/3rfLxBx

THU,11 MARCH 2021, 7:30 PM-8:30 PM Topic: Semi-colonialism in Siam
Presenter: THONGCHAI WINICHAKUL
Universty of Wisconsin-Madison
Moderator: Prabhakar Singh
Jindal Global Law School

THU, 18 MARCH 2021 7:30 PM – 8:30 PM Topic: From Semi-Colonial Ambiguity to Nationalist Assertion in Twentieth-Century China
Presenter: XIN FAN
State University of New York Fredonia
Moderator: Prabhakar Singh
Jindal Global Law School

THU, 08 APRIL 2021 7:30 7:30 PM – 8:30 PM Topic: Hawaiian kingdom, the United States and International Law
Presenter: DAVID KEANU SAI
University of Hawaii
Moderator: Ajita Sharma
Jindal Global Law School

THU, 15 APRIL 2021 7:30 PM – 8:30 PM Topic: Semi-colonialism in Indochina: A longue Duree History: A Langue puree History
Presenter: ANN.SOPHIE SCHOEPFEL
Harvard University
Moderator:Prabhakar Singh
Jindal Global Law School

MON, 26 APRIL 2021
6:OO PM – 7:OO PM

Topic: Semi-colonialism in Ethiopia
Presenter: HAILEGABRIEL FEYISSA
Melbourne Law School

Moderator: Lea Mehari Redae
Addis Ababa University

THU, 06 MAY 2021 6:00 PM -7:00 PM Topic: Semi-colonialism in Ethiopia
Presenter:PRASENJIT DUARA
Oscar Tang Chair of East Asian Studies, Duke University

Moderator: Prabhakar Singh
Jindal Global Law School

ORGANISERS
Prabhakar Singh and AGRA Sharma- Jindal Global Law School
Lea Mehari Redae- Addis Ababa University

Seminar on respecting and protecting health care during conflict/violence

Organized by the International Committee of the Red Cross (ICRC) and Addis Ababa University, School of Law

March 10, 2021, Addis Ababa

Background and rationale

Armed conflict and internal disturbances – such as violent protests and riots – cause injuries among those directly participating and those who get caught in the way. Serious injuries require medical attention, yet it is precisely at these moments of greatest need that health-care services are most vulnerable to disruption, interference and attack. Violence, both actual and threatened, hugely impacts upon accessibility of health services, at times threatening the lives of those who need the services most. Violence against or in the vicinity of medical facilities may also cause health personnel to flee, leaving a big void in the much-needed health care services- affecting not just those who are wounded in the fighting but also those that suffer from chronic illnesses that require regular care and follow-up. It may damage health facilities or vehicles, as well as hamper vital preventive health care programmes such as vaccination campaigns, resulting in serious health implications in the long-run. The fight to eradicate polio, for example, has faced setbacks in countries like Afghanistan, Pakistan and the Democratic Republic of the Congo, where the safety of vaccination teams is difficult to assure. The health care system shall be respected and protected at all times and shall not be the object of attack.

Against the backdrop of the concerning humanitarian issue of violence against health-care and the urgent need for a continued focus on the matter, the International Red Cross and Red Crescent Movement launched in 2011 the Health Care in Danger (HCiD) Initiative. The initiative aims at addressing the issue of violence against patients, health workers, facilities and vehicles, thus ensuring safe access to and delivery of health care in armed conflict and other emergencies. The initiative also underscores that all reasonable measures should be taken to ensure safe and prompt access to health care for the wounded and sick, in times of armed conflict or other emergencies, in accordance with the applicable legal frameworks, where relevant and appropriate, to adopt and effectively implement the required domestic measures, including legislative, regulatory and practical ones, to ensure respect for their international legal obligations pertaining to the protection of the wounded and sick and health-care personnel, facilities, and medical transports, and the protection and use of the distinctive emblems by authorized medical personnel, facilities and transports.

Participants

The participants will be drawn from lecturers of IHL and related fields of law such as human rights, international criminal law, and if feasible, from the medical and public health schools. Senior students who are engaged in the activities of the IHL clinic and the Ethiopian Red Cross Society will also participate in the seminar. The total number of participants is expected to be around 20.

Date/Venue: The seminar will be conducted on the 10^th of March 2021 at Addis Ababa University, Law school building, room 8.

Expected Outcomes: After the seminar, it is expected that participants will have a very good grasp of the challenges surrounding respect and protection of health care globally (and, to a limited extent, in Ethiopia). The seminar will also hopefully serve as a stepping-stone for the envisioned collaboration with the IHL clinic of Addis Ababa University, to conduct an HCiD legal and administrative set-up review for Ethiopia. Participants will also be provided with selected resources that can serve as references for those interested in pursuing the topic further.

Resources for the Workshop

Main reference document: “Protecting Health Care: Key Recommendations”, available here.

additional reading (available for download in the Resource Center at www.healthcareindanger.org):

“The implementation of rules protecting the provision of health care in armed conflicts and other emergencies: a guidance tool”

“The responsibilities of health-care personnel working in armed conflict and other emergencies”

Contact Persons:

• Raji Gezahegn, Legal adviser
• Eyerusalem Teshome, Head of Prevention
• Yosalem Negus, Director AAU IHL Clinc,ihlclinicaau@gmail.com

Schedule

Time	Activity	Responsible
9:00- 9:30	Opening remarks/Welcome speech       Video: “One of the first victims of war is the health-care system”	Abdi Jibril (Ph.D.), Head of Law School, Addis Ababa University   International Committee of the Red Cross (ICRC)
9:30-10:00	Challenges facing the healthcare system amid conflicts: a snapshot	Ana Elisa M. Barbar  Adviser to the Health Unit, Health Care in Danger Initiative, ICRC International Committee of the Red Cross (ICRC)
10:00-11:00	The Health care in Danger Initiative of the RCRC Movement: What is it and the rationale	Ana Elisa M. Barbar
11:00-11:30	Health break😊
11:30- 12:30	International legal frameworks for the protection of health care	Raji Gezahegn, Legal adviser, ICRC
12:30- 13:00	Protection of Red Cross Emblem under Ethiopian Law	Tewodros Alamerew, Head of Legal Services, Ethiopia Red Cross Society (ERCS)
13:00-13:30	Wrap up and next steps	Eyerusalem Teshome, Head of Prevention, ICRC
13:30	Lunch	Facilitators

The Ethio-Sudanese Border Conflict in the Disputed ‘Al-Fashqa’ Territory: What are the International Law Issues at Stake?

By: Marishet Mohammed Hamza and Fikire Tinsae Birhane

Background

Ethiopia and Sudan share a long border that stretches over 1,600 Kms. While large part of the border remains un-demarcated, it is mostly undisputed. There are, however, pockets of disputed lands, including ‘Al-Fashqa’, which lies in the northern tip of the shared boundary. According to Sudan, Al-Fashqa was demarcated as part of its territory under the 1902 treaty between Ethiopia and colonial Britain, representing Sudan. For long, it is Ethiopian farmers that reside and farm in Al-Fashqa. Sudan explains the reason for this is the 1978 agreement in which it has agreed to leave the soft border open to Ethiopian farmers who would operate under Sudanese law and pay taxes to it, while Ethiopia recognizes Sudan’s sovereignty over the land. Ethiopia rejects such claims and has been asserting its full sovereignty instead.

Recently, following accusations of attacks in Al-Fashqa against Sudanese civilians by armed militiamen(which Sudan alleged were supported by Ethiopia), Sudan’s military crossed into the disputed territory, attacked the villages and took control of a large part of the territory. The attacks, according to Ethiopia, took place since the first week of November 2020. Besides, there are also reports indicating military confrontations between the defence forces of the two countries.

Sudan has confirmed it has ‘(re)taken control of most of Sudanese territory in the disputed border area which was under the Ethiopian farmers’. However, Ethiopia persistently accuses Sudan of intruding into, and carrying out organized attacks and forcefully taking control of its land. Sudan, on its part, accuses Ethiopia of supporting continued attacks by local militiamen and, also, violation of its airspace by an Ethiopian fighter-jet. Ethiopia rejects these claims too. The tensions have further escalated and, on 15 February 2021, Sudanese foreign ministry has accused Ethiopian forces of trespassing into Sudanese land ‘in an act of aggression’. Similarly, the Ethiopian foreign ministry condemned Sudan for its continued provocative behaviour, violation of boundary agreements, and called upon it to ‘reverse [its] aggression’.

Is the Use of Force by Sudan (un)lawful?

It is an established principle of international law that States shall refrain from the threat or use of force in their international relations ‘against the territorial integrity or political independence’ of other States(UN Charter, Article 2(4)). The only exception for this is the right to self-defence to repel an armed attack(UN Charter, Article 51). Thus, unless justified under the exception, the threat or use of force might constitute an armed attack, and violation of the UN Charter. Despite this proscription, States might still resort to the use of force; in which case a situation of armed conflict occurs and the propriety of resorting to force could become an international law issue.

The prohibition under Article 2(4) of the UN Charter equally applies to disputed territories (C. Yiallourides et al, 2018, p.). The obligation under Article 2(4) supplements Article 2(3) of the Charter, which requires States to settle their disputes through peaceful means. These obligations were reaffirmed in the 1970 UN General Assembly Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, which provides that States have a duty ‘to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States’ (Principle 1). The International Court of Justice (ICJ) has observed that the adoption by the majority of States of the Declaration ‘affords an indication of their opinio juris as to customary international law on the question’ (Nicaragua judgement, para.191). Accordingly, ‘under the UN Charter and customary international law, the resort to force is never an acceptable means of altering an existing territorial status quo, including in situations of disputed territories’ (C. Yiallourides et al: p. 90).

Turning to our case, Sudan has officially acknowledged its attacks in the disputed Al-Fashqa area and forcefully retaking the disputed territory. Manifestly, these acts constitute use of force as contemplated under international law. As the attacks have occurred against a territory which Ethiopia categorically and in strongest terms claims as part of its sovereign territory, arguably, the Sudanese acts could be regarded as attacks directed against the sovereignty and territorial integrity of Ethiopia.

Sudan has not yet justified its attacks and the forceful control of part of the disputed land under the self-defence exception. This could have invited assessment of whether its armed attack might be in tune with the UN Charter. Though there has not been such a claim, one should examine whether the alleged attacks (against Sudanese civilians and military) within the disputed land by the local (Ethiopian) militiamen could be regarded as an armed attack to which Sudan could invoke the right to self-defence.

The ICJ, in its Nicaragua judgement (para.195) has made it clear that the concept of ‘armed attack’ in the context of the right to self-defence is limited to ‘actions by states’. Regarding an armed attack by a non-state armed group (such as the local militiamen), it will constitute an armed attack if it could be proven that a State has ‘financed, armed and trained the armed group’ and sends it over a border to engage in use of force against another State (ibid). Similarly, International Law Commission’s (ILC) draft articles on responsibility of states for internationally wrongful acts provides for situations where a certain conduct can be attributed to a State, and thereby entail its international responsibility. As described above, Sudan acknowledged waging military attacks against the Ethiopian militiamen in Al-Fashqa and forcefully retaking most of the villages in the disputed territory. Accordingly, there is no question that this conduct is attributable to Sudan (Article 4, ILC Draft Articles).

However, even if Sudan’s claim that the (Ethiopian) militiamen had attacked Sudanese civilians prior to the Sudanese military attacks in the Al-Fashqa area is true, there still is a question whether the militiamen’s conduct can be attributed to Ethiopia. The relevant provision in the ILC draft articles provides that ‘the conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct’ (id, Art 8).

In addition, according to the ICJ, not all incidents by armed forces (including non-state armed groups) constitute armed attacks that entitle States to use counter-force in self-defence; rather, it has to be a ‘grave form of the use of force as distinguished from other less grave forms’ (Nicaragua judgement, para.191). Accordingly, even if it were possible to attribute the local militiamen’s attack to Ethiopia, for Sudan to invoke the right to self-defence, it has to be proven that the attacks were a ‘grave form of the use of force’. On top of that, as the incidents happened in a disputed territory, it has to also be established that the alleged militiamen attacks occurred against Sudan’s sovereign territory. The mere allegation that Ethiopian-militiamen had attacked Sudanese civilians may not suffice to consider the events as an armed attack against Sudan as a State.

In sum, ‘forcible means cannot be used to gain control over a disputed territory or to alter in any way the existing factual situation on the ground in the attacking State’s favour. Moreover, force cannot be used to correct retroactively situations of perceived past injustice on grounds of self-defence’ (C. Yiallourides et al: pp. 90-91). A State cannot also legitimately invoke a right of self-defence to gain control over a disputed area which is under the de facto control and administration of another State, on the basis of rectifying a situation of unlawful possession or generally correcting a ‘past injustice’ (C. Yiallourides et al: p. 77).

Is there an International Armed Conflict?

While resorting to war(armed attacks) in violation of the UN Charter prohibition on the use of force is a jus ad bellum question, the issue of whether there actually exists an international armed conflict (IAC) is a jus in bello question, which pertains to the applicable international humanitarian law (IHL) rules.

Both Ethiopia and Sudan are state parties to the four Geneva Conventions of 1949(GCs) and their two additional protocols of 1977. According to Common Article 2 to the GCs, the Conventions apply to ‘all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, … [and] to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance’. Additional Protocol I(API) applies to similar situations(Article 1(3)). Generally, according to IHL, two situations trigger an IAC: an armed conflict between two or more States (a declaration of war may also trigger the applicability (M. Sassòli, 2019, p.169)) and occupation of the territory of another State.

According to Sassòli, the existence of an IAC is a question of fact that exists ‘if someone attributable to a State commits acts of violence against persons or objects representing another State’ (ibid). To distinguish from acts which are unintentional or done mistakenly/in error, it is suggested that the act must be approved by the ‘highest authorities of the State’ (ibid).

Based on the above assessment, the Sudanese military’s organized armed attack in Al-Fashqa could be taken as a sufficient fact to prove the existence of an IAC between the two countries. Reports of military confrontation between the defence forces of the two countries further corroborate this.

Status of Al-Fashqa, is it an Occupied Territory?

While Sudan claims retaking control of a disputed territory, Ethiopia accuses Sudan of ‘occupying’ its land. Under the Hague Regulations (Article 42), ‘a territory is considered occupied when it is actually placed under the authority of the hostile army’. Conventionally, there are three fundamental criteria that will be used to establish whether a situation constitutes an occupation: effective control by one State of part or whole of the territory of another State, loss of effective control by the invaded State, and lack of consent by the State that lost control over territory. (M. Sassòli, 2019, pp.303-305).

Thus, control over territory constitutes an occupation, and obligations of an occupying force follows, where a State invades and took control of a territory that belongs to another State. In our case, Sudan claims it has retaken control of its own territory. Indeed, under the law of occupation, if a State ‘liberates its own territory that was previously occupied’ by an adversary and regains control, it would not constitute an occupation (ibid, p.313). Nonetheless, where sovereignty over a territory is disputed, the claim of retaking control over territory (like Sudan’s claim over Al-Fashqa) will not exclude the applicability of the law of occupation (ibid). In other words, though a State controls a territory it considers to be its own, it would still constitute an occupation, if sovereignty is contested by the adversary (E. Benvenisti, 2019, p.59; A. Roberts, 1984, 55 BYBIL 249, p.280).

In light of Ethiopia’s assertion of sovereignty over the territory, one could easily see that sovereignty over Al-Fashqa remains a disputed one, and, in that case, it is reasonable to conclude that Al-Fashqa can be considered an occupied territory to which IHL of occupation would be applicable.

Conclusion

In light of the UN Charter prohibition on the use of force, which equally applies to disputed territories like Al-Fashqa, Sudan’s forceful entry into Al-Fashqa and (re)taking control of territories that were under the de facto control and administration of Ethiopia makes its act unlawful under international law. Also, the undisputed armed attacks in Al-Fashqa and alleged military confrontation between the defence forces of the two countries along with the situation of occupation of Al-Fashqa establish existence of an IAC between Ethiopia and Sudan.

Authors Bio

1.Marishet Mohammed Hamza

PhD Student at the Graduate Institute of International and Development Studies, Genève

Email: marishetm@yahoo.com/ marishet.mohammed@graduateinstitute.ch

2. Fikire Tinsae Birhane

PhD Student at the Institute of International and Comparative Law in Africa, University of Pretoria;

Lecturer of Laws and Human Rights, School of Law, Hawassa University.

Email: ftinsae@gmail.com/ fikire.birhane@graduateinstitute.ch

http://www.icla.up.ac.za/doctoral-students/59-about-us/students/451-fikire-tinsae-birhane