The conflict in Tigray: “an armed conflict” or “a law enforcement operation’’: resolving the puzzle and its legal relevance.

Author: Marishet Mohammed Hamza

Image Source: https://www.dw.com/en/ethiopian-army-marches-on-tigray-capital/a-55644585

Keywords: NIAC, armed conflict, armed attack, law enforcement, Tigray conflict, Ethiopia.

Characterization of the situation : An ‘armed conflict’?

On 04 November 2020, Prime Minister Abiy Ahmed (Ph.D.) has appeared on national TV and broke the news of an armed attack on the National Defence Force’s (NDF) contingent stationed in Tigray region – called, the Northern Command (NC) by the ruling party in the region- Tigray Peoples Liberation Front (TPLF) through its military branch, the Special Police Force (SPF). Forthwith, as the commander-in-chief of the NDF Abiy ordered the NDF to launch a military operation against the perpetrators of the armed attack against the NC. In a subsequent statement the PM had explicitly regarded the TPLF’s armed attack, the NDF’s counterattack, and the overall situation as a “situation of war”.

On the same day, a press release by the Office of the Prime Minister accused TPLF  of waging war and the war has occurred despite the Federal Government’s determination to avoid one. Therefore, “the Federal government is forced into a military confrontation” and the NDF is ordered to carry out the mission. Similarly, the State of Emergency decree adopted by the Council of Ministers on November 04 has made it clear that the situation in Tigray ‘cannot be prevented and controlled through the regular law enforcement mechanisms’. Impliedly, suggesting that the measure resorted to is a military (counter) attack – in other words, war.

The belligerent TPLF’s chairperson and the president of Tigray Region Debretsion Gebremichael (PhD), the next day after the attack on NC, affirmed the existence of war with the Federal Government forces and that the region was well armed to fend-off any armed attack.

Thus, from the get-go, both parties, particularly the Federal Government, have characterized the conflict and their respective military engagement as an armed confrontation involving – thus, an act of war; it was not (initially) regarded as a law enforcement operation.

No, it is a ‘law enforcement’ operation!

Few days after the military confrontation, the Federal Government has switched its characterization of the ongoing hostility and designated the military engagement as a ‘law enforcement’ operation. The PM, in a video statement on November 08 – apparently addressed to the international community – has affirmed and stressed that the Federal Government has engaged in the constitutional order and rule of law maintenance operation.  It is a law enforcement operation aimed at ending what the PM called an ‘impunity and criminality by the TPLF ‘clique’; thus, there is no armed confrontation or a situation of war, but a law enforcement operation.

Thenceforth, the new designation has become a mantra and the Federal Government, other regional governments, public media, military personnel, and almost everyone on the central government side call the situation a ‘law enforcement’. There seemed to be a campaign – in all public relation fronts – to call the situation by its new name. Law enforcement! Not a War!

Why would the prescription be relevant?

Naming the hostility either as a war or law enforcement operation may have its own constitutional and legal significance. But from the perspective of international law obligations (particularly, IHL obligations), the implications of such prescription would be less since such obligations are triggered based on the facts, not necessarily based on the characterisation.

From the point of view of the Constitution of the Federal Democratic Republic of Ethiopia (FDRE Constitution), a situation would constitute war (armed conflict) only if it is declared as such by the House of Peoples Representatives (HPR), the lower legislative body, upon a draft declaration the Council of Ministers submits (FDRE Constitution, Art.55(9) and 77). The Constitution does not make it clear when such a declaration could be made. But the one thing clear is that a war (an armed conflict) requires a declaration by the HPR. On the other hand, upon authorization by the House of Federation (HoF), the upper house, the Federal Government may intervene in any part of the country to control a breakdown of law and order (FDRE Constitution, Art.62).[1] It was through this procedure that the Federal Government was authorized to intervene in Tigray. However, constitutionally speaking, such an intervention is different from a state of armed conflict or a declaration of war. From this, it will safely be concluded that the FDRE Constitution does not envisage armed conflict (war) against local forces or forces of regional governments such as the Tigray SPF. In other words, the Federal Government would violate the Constitution if it has continued to describe the military operation as an armed conflict or war.

In light of the international law obligations of the Country, the designation as ‘armed conflict’, ‘law enforcement’ or, maybe, as a ‘war’ would be less relevant. Generally, the meaning of the word ‘war’ today signifies more of an inter-state armed conflict than a non-international armed conflict (NIAC) or also called a civil war (this is also an outdated expression). Thus, in reference to a NIAC, the habitual description is ‘armed attack’, not war. Related to this, States are also generally reluctant, since the inception of the law of NIAC, to characterize a situation as an armed attack and to invite the applicability of international law.[2] They consider it as an unnecessary intrusion into their sovereign discretion on domestic matters.

In the Tigray conflict as well, one could observe this tendency on the Ethiopian Government side. On its November 25 press release, the Prime Minister’s Office has invoked the principle of non-intervention in internal affairs and asserted its “right to uphold and enforce its laws within its own territory”. The press release does not mention international obligations, except a pass mention of ensuring protections for the civilian population. This may indicate, as it was in the past, the continued resistance of states to trigger and enforce IHL in the case of NIACs.

International obligations are triggered irrespective of the government’s description

Ethiopia is a party to international human rights and international humanitarian law (IHL) treaties that are applicable during situations of conflict or armed hostilities. Human rights laws are always applicable, including in situations of armed hostilities to the extent they are not displaced by the rules of IHL. Whereas IHL in this case, IHL of non-international armed conflicts (NIAC), applies to an armed conflict only if the required thresholds, i.e., the intensity of the hostility and organization of the armed group(s), are met. Indeed, the Additional Protocol to Geneva Conventions and related to NIACs (AP II) has further requirements that have to be met to trigger its applicability.

As mentioned above the international obligations of the Federal Government (and, implicitly that of the belligerent TPLF forces) are triggered based on the facts on the ground. Thus, for IHL (of NIAC) obligations, the necessary precondition is the existence of an armed conflict and if that is proved (along with the required thresholds), the obligations kick-off. Fikre Tinsae and Fekade Alemayehu in their respective blogposts (here and here) have addressed the IHL applicability and classification issues and I do agree with their conclusion that IHL is fully applicable to the conflict in Tigray. Thus, despite the legal characterization of the hostility, the Federal Government is bound to respect both its human rights and IHL obligations during the overall situations.

A glimpse at some of the international law obligations

Human rights law

As mentioned above, human rights laws continue to apply in situations of armed conflicts to which IHL also applies subject to interpretation concerning IHL rules in case of conflict of norms.

One of the human rights that is directly implicated due to the hostility is the right to life. The right to life is non-derogable during a state of emergency, including during war (ICCPR, Art.4(2)). The African Charter on Human and Peoples’ Rights does not have an explicit provision on derogation. The African Commission has, however, interpreted this to mean the prohibition of derogation at all times (AComHPR, GC 3, para.1). Inter alia, this right prohibits arbitrary use of lethal force and arbitrary killings. In the context of armed conflicts, deprivation of life will be arbitrary it is inconsistent with international law (Human Rights Committee, GC.36, para.64). Therefore, during the hostility in Tigray, the Government forces (and TPLF) must respect the right to life of civilians in general. Members of the armed forces who laid down arms or hors de combat shall also be protected against arbitrary deprivation of life.

More generally, concerning the State of Emergency declared within Tigray Regional State as well, the Federal Government must ensure that its implementation is consistent with its international human rights obligations. For instance, a blanket State of Emergency declaration that does not enumerate restrictions could open the leeway for human rights violations.

Finally, concerning allegations of crimes against humanity (or, war crimes) such as the civilian massacre in a place called Mai Kadra (here and here) the Federal Government is obliged under international human rights law to make an investigation , prosecute and punish the perpetrators (HRC GC.36, para.64).

International humanitarian law 

Under IHL, the parties to the conflict have specific obligations with respect to civilians, civilian properties, and belligerent combatants who are placed hors de combat (GCs, Common Article 3 (CA 3)). The list of obligations during military operations include prohibition: to direct attack against civilians or civilian population (ICRC Customary Law Studies (CIHL), Rule 6) and civilian objects (CIHL, Rule 7); of attacks directed against civilian population or objects by way of reprisal (CIHL, Rule 148); to attack against persons who are hors de combat (CIHL, Rule 47); of indiscriminate attacks (CIHL, Rule 12(a)); of using civilians to shield military objects from attack or to impede military operations (CIHL, Rule 97). Parties to the conflict must take precautionary measures to spare civilians, civilian population, and civilian objects from attack (CIHL, Rule 16 and 17).

Wounded and sick persons owing to the conflict whether military personnel (belligerents) or civilians shall also be respected, protected, and humanely treated (GCs, CA3; CIHL, Rules 111). Similarly, detained belligerents (captured or surrendered during the hostilities) shall be treated humanely and IHL prohibits violence to their life and person, cruel treatment, and torture (GCs, CA3; APII, Arts.4-6). AP II also encourages the parties to the conflict to provide a “widest possible amnesty” to members of the belligerent armed captured or surrendered during the hostility (AP II, Art.6(5)).

Concerning humanitarian assistance, parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need (GCs, CA3; APII, Art.18(2); and CIHL, Rule 55). In addition, it is prohibited to use starvation of civilians as a method of warfare (AP II, Art.14; CIHL, Rule 53).

---

[1] Indeed, both the Council of Ministers and the HPR have the power to declare a state of emergency should a breakdown of law and order which cannot be controlled by the regular law enforcement agencies arise. However, such a declaration alone does not entitle the Federal Government to deploy federal forces or the army in a regional state, authorization from the House of Federation is required (FDRE Constitution, Art.93)

[2] A. Cassese, ‘Current Trends in the Development of the Law of Armed Conflict’, in A. Cassese, The Human Dimension of International Law: Selected Papers, OUP, 2008, pp.3-38.

Marishet Mohammed Hamza is Ph.D. Student at the Graduate Institute of International and Development Studies, Genève. He can be reached at Email: marishetm@yahoo.com

Kidnapping of Civilian Girls and Women by Non-State Armed Groups

Author: Helina Stiphanos

Image source: https://str8talkmagazine.com/index.php/2020/06/15/government-says-several-parties-involved-in-abduction-of-university-students/

About a year ago, 18 Amhara students of Dembi Dolo University were fleeing from the unrest in their University. While they were on their way to Gambela, the students were kidnapped in Wollega, Oromia region. One of them managed to escape and gave a testimony of the incident to the news outlet Addis Standard. The rest, most of whom are female, have disappeared without a trace. They have not been heard of since. On the anniversary of their disappearance, Helina discusses if kidnapping of civilian girls and women can be a violation of International Humanitarian Law.

Key Words: Kidnapping, Non-International Armed Conflicts, Non-State Armed Groups, Girls, Women.

Kidnapping of Civilian Girls and Women by Non-State Armed Groups

#BringBackOurGirls, a social media campaign started in Nigeria, was a result of an outrageous kidnapping of 276 girls from their school in Chibok. The girls were kidnapped by Boko Haram, a non-state armed group (NSAG), as a retaliation to the ‘nabbing’ of the wives and children of the group’s members by Nigerian authorities. This was, however, just the first step to the evolution of the group’s tactics towards instrumental use of girls and women in non-international armed conflicts (NIACs).^[1] Shortly after the kidnapping in April 2014, a middle-aged woman became the first female bomber for the group. Since then, even girls as young as 7 years old have been used as suicide bombers. A 2018 UNICEF press release states that more than 1,000 children have been kidnapped by Boko Haram in north-eastern Nigeria between 2013 and 2017. Between January and August 2017, the use of children as ‘human bombs’ intensified with 83 children, 55 of whom were girls, having been used as such. Unfortunately, the kidnapping of the Chibok girls was neither the first nor the last of such acts, by Boko Haram and/or other NSAGs.

Kidnapping, IHLs Violation?

The regulation of NIACs relies on extremely limited legal instruments – Common Article 3 to the Geneva Conventions and Additional Protocol II[2] (APII) – and a strong Customary International Humanitarian Law contribution. Yet, none have defined kidnapping. Even the jurisprudence of multiple international courts and tribunals have disregarded this. In this blog post, kidnapping is defined as the forcible removal of civilian girls and women from their environment by NSAGs.

IHLs apply once a situation reaches an armed conflict which arises when elements of opposing armed forces are engaged in an attack.[3] Attacks are acts of violence against the adversary whether in offence or defence.^[4] It is the use of armed forces to carry out a military operation at the beginning or during the course of armed conflict, a definition applicable in NIACs too.^[5] Thus, kidnappings can constitute attacks as long as they are carried out by a party to an armed conflict in furtherance of a military operation or as one by itself, at the beginning or during the course of armed conflicts.

The applicability of IHLs to NSAGs is widely accepted.^[6] Hence, they are required to respect the rights of civilians to be protected from being objects of attack.[7] The distinction of civilians and combatants/members of NSAGs is a pillar of IHLs.[8] This protection lasts for as long as civilians refrain from taking direct part in hostilities (DPH).^[9] Accordingly, girls are protected by law, from being objects of kidnapping by virtue of their civilian status. School girls from Dapchi in Nigeria, most of whom were later released, were kidnapped by Boko Haram from their secondary school. However, there has not been any indication from any of the parties as to the involvement of any of the girls in the armed conflict nor of the fact that they were taking DPH.[10] Thus, the act is an outright breach of IHLs as it demonstrates the ignorance of such NSAGs towards their responsibility of sparing civilians from targeting.

In addition, act or threat of violence whose primary purpose is spreading terror amongst civilians is prohibited in NIACs.[11] Acts that constitute such violence include assault, rape, abuse and torture of women and children among others.[12] These acts are particularly reprehensible for they are frequent and inflict particularly cruel suffering upon the civilian population.[13] The phrase ‘acts or threats of violence…’ under article 13(2) of AP II was intentionally left to be illustrative.[14] There is no exhaustive list of acts amounting to acts or threats of violence providing a space for kidnapping to be included. Besides, the acts provided as an example under Henckaerts and Doswald-Beck’s Customary International Humanitarian Law share a peculiar feature with kidnapping, i.e. negative long-lasting effect on the lives of victims.

The suffering from kidnappings is particularly cruel as the young girls, even beyond the kidnapping, are subject to further harm while captives and face multiple difficulties when/if they return. In addition to forming part as one of the six grave violations committed against children, kidnapping is usually only the starting point to further violations of International Humanitarian Laws (IHLs). In 2014, Yezidi young women and girls as young as 12 were kidnapped by Islamic State (IS) fighters who sold, gave them as a gift or forced them to marry to IS fighter/supporters. Many of them were further subject to rape and other forms of sexual violence. These acts are very traumatizing to the extent that some have attempted to end their own lives. Moreover, survivors of rape and conflict time violence are subject to stigmatization, rejection, and abandonment, upon their return.[15] Hence, kidnapping can form part of an act or threat of violence.

Moreover, women and children are specially protected in armed conflicts. Women benefit from special protection which entitles them protection in the various situations they may find themselves in.[16] Children are also entitled to care and aid they require provision of education, reunification with their families, protection from participating in hostilities and being recruited to armed groups and be taken out of areas of hostility.[17] Furthermore, both girls and women can benefit from the protection against rape and other forms of sexual violence.[18] Kidnapping is contrary to these special protections. Often, it results in outrages upon personal dignity of girls and women manifested through physical and sexual violence, among others. It mostly results in the denial of education to girls who will be kept away from their families and are forced to ´grow´ much faster than they would in their normal environment. There are even times where they are forced to take part in hostilities in different capacities.

Conclusion

Kidnapping is a violation of IHLs. It takes away the multiple opportunities that girls and women can make use of in the real world, making them more susceptible to harm than they already are in an unequal world. Moreover, the subsequent dangers they face while being kidnapped threatens their fundamental and basic rights. In addition, the harmful effect of kidnapping is not only to the girls and their immediate families but also to the broader community and global peace and security in general. It is a threat to the advancement that has been witnessed on the rights of girls and women over the years and undermines the role that IHLs play in the protection of these civilians.

---

[1] Jacob Zenn and Elizabeth Pearson, ‘Women, Gender and the evolving tactics of Boko Haram’, (2014) 5(1), Journal of Terrorism Research, 46-57, p.47  

[2] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977

[3] A.P.V. Rogers, ‘Law on the Battlefield’, (3^rd edn, Manchester University Press, 2012), p.3

[4] Art. 49(1), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977

[5] Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987, para.1882 and para.4783

[6] Daragh Murray, ‘How International Humanitarian Law Treaties Bind Non-State Armed Groups’, (2015) 20(1), Journal of Conflict and Security Law, 101-131, p.101

[7] id [n.2] art.13(2)

[8] Jean-Marie Henckaerts and Louise Doswald-Beck, ‘Customary International Humanitarian Law’, (Cambridge University Press, 2009), 1 Rule 1

[9] id [n.2] art.13(2); id Rule 6

[10] The author believes that neither combatants nor members of NSAGs should be subject to kidnapping, as well. But protection for them can be better argued on the ground of limited means and methods of warfare than distinction.

[11] id [n.2] art.13(2); id [n.8] Rule 2

[12] id [n.8] Rule 2

[13] id [n.5] para.4785

[14] id

[15] Hawkar Ibrahim, Verena Ertl, Claudia Catani, Azad Ali Ismail and Frank Neuner, ‘Trauma and perceived social rejection among Yazidi women and girls who survived enslavement and genocide’, (2018) 16(154), BMC Medicine, p.2

[16] id [n.8] Rule 134; Common Article 3(1)(c) provides for prohibition of outrage upon personal dignity, in particular humiliating and degrading treatment from which the protection of women can be inferred. 

[17] id [n.2] art.4(3); id [n.8] Rule 135

[18] id [n.8] Rule 93

Helina Stiphanos Teka is a research associate at the University of Münster. She has a Master of Laws in International Humanitarian Law from the University of Essex and Bachelor of Laws from Addis Ababa University. She can be reached at helinastiphanosteka@gmail.com

Detention in Non-International Armed Conflicts: overview of the scholarly debate in the context of the conflict in Northern Ethiopia

Author Fekade Alemayhu Abebe

https://www.dw.com/en/ethiopia-nears-war-in-tigray-as-abiy-sends-in-troops/a-55500897

1. Introduction

Since the attack on the Ethiopian National Defense Forces (ENDF) northern command base in the capital of Tigray regional state Mekelle, in the early hours of November 4, 2020 by forces loyal to the Tigrayan Peoples Liberation front (TPLF), the Northern region of Ethiopia had been a site of intense military confrontation. On November 23, 2020, the ICRC Ethiopia released a statement denying a claim by the Tigray forces that it has received 858 detainees of Ethiopian National defense force (ENDF) soldiers who were captured in the context of the conflict in Northern Ethiopia.The ICRC reiterated that it is willing to extend its services in returning those detained, should it be asked. This story raises some critical issues from the perspective of IHL like whether armed groups can detain in armed conflicts? If so, on what legal basis? Does IHL provide a sufficient legal base for detentions outside a criminal process (internment) in armed conflicts to be lawful? This short article tries to bring  some of the scholarly debates surrounding these issues in the current conflict in Northern Ethiopia. The article will first start by making the case for the application of IHL by classifying the conflict.

• Is there an armed conflict for the purpose of IHL and if so, what is the applicable law?

Under IHL, a conflict can either be an international armed conflict(IAC) where it involves use of force by two or more high contracting parties to the conflict or it can be a non-international armed conflict(NIAC)when it involves an armed force of a State and dissident armed forces or other organized armed groups or armed conflict between such organized groups themselves. The conflict in Tigray region is between the ENDF, Amhara Special forces and militias on the one hand, and dissident armed forces of the Tigray regional special force loyal to the TPLF, on the other.  These rules out the possibility of IAC at least for now. For a NIAC to exist the conflict must reach a certain level of intensity and the groups fighting the state armed forces must be well organized (seehere). Judging by the military engagements reported in the region for the past three weeks the number and caliber of weapons used by both parties, and the number of people fleeing the conflict; it is possible to infer that the conflict is in fact intense. The core of the TPLF forces, even before the conflict, were serving as a regional special force with a clear chain-of-command and territorial control. It is , therefore, possible to decipher they have sufficient level of organization. Hence, the conflict can be classified as NIAC. Since Ethiopia has ratified the Geneva Conventions and its protocols, the second protocol (APII) is also applicable in addition to common Article 3 of the Geneva convention (CA3) and Customary IHL to the current conflict.

• Does IHL provide a sufficient legal basis for detentions in NIAC?

Detention is a common occurrence in armed conflicts. Accepting this reality, IHL extensively allows for and regulates detentions in IACs under GCIII and GCIV. When it comes to NIACs, however, there is no such express authorization in both treaty and customary IHL. This has sparked scholarly debates whether IHL provides sufficient legal basis to detain in NIACs. From the perspective of State armed forces, this issue is controversial where the detention took place in a NIAC taking place outside the territory of the state concerned (i.e. extra-territorial NIACs).( See, for example, Mačak pp13-18; Aughey& Sari, for arguments supporting  the view that IHL does provide for inherent authority to detain). However, when it comes to territorial NIACs, such legal basis could easily be found in domestic law. The ICRC supports this view, but such legal basis must be informed by the State’s human rights obligations and IHL (CA3 commentary, §763).

• Does IHL give Non-State Armed Groups (NSAGs) sufficient legal basis to detain?

The issue of whether IHL provides sufficient legal basis for detention by NSAGs is a topic of much controversy, even in the case of territorial NIAC. Notable Scholars, agreeing that such inherent authority exists in IHL, argue that it extends to detention by armed groups. (see Clapham pp.6-12; Murray pp. 446-449; Heffes pp. 238-247, and Niyo pp.16-19). Their main argument is based on the principle of equality of belligerents which can be inferred from the wording of CA3 and Art.4, 5, 6 of APII. These obligations include the obligation to treat those detained humanely and judicial guarantees before sentencing which both sides are expected to comply with. Besides the principle of equality of belligerents, proponents also argue that prohibiting detention by NSAGs will create an incentive to kill combatants and fighters rather than detain, going against the very purpose of IHL. If IHL does not recognize and regulate the detention by NSAGs, it would leave a protective gap which will result in abuse of rights of detained persons. (For a summary of these arguments, see Heffes , pp.238-247).

However, this view has been challenged by other group of scholars who argue that there is no explicit provision that provides such inherent authority to detain for both parties in NIAC. They reject the argument that the wording of CA3 and 4, 5 & 6 APII provides implicit authority saying that it does not suggest authorization rather it merely suggests that IHL does not prohibit it. (see for example Laurence Hill-Cawthorne, pp.70-75; Hill-Cawthorne& Akande; Rona, pp.35-37). Hence, they argue the legal basis for detention by NSAGs should be searched for elsewhere like in domestic law or human rights law. In addition to these, scholars in general, oppose the existence of such authority for NSAGs in fear that it would legitimize the latter either legally or politically (See Rona, pp.38-39). The ICRC, in both controversial situations of extra-territorial NIACs and detention authority by NSAGs, seems to agree with the first group of scholars at first sight stating that both treaty and customary IHL provide inherent power to detain which may constitute a legal basis to detain, with the caveat that such legal basis must be bolstered with additional authority regarding grounds and procedures of detention.(CA3 commentary, §765).

The author of this contribution agrees with the ICRC and the first group of scholars in that implicit legal basis for detention by the Tigrayan forces must be derived from IHL. The fact of the matter is IHL do foresee the detention by NSAGs. Recognizing this implicit authority will make it easier also to regulate the detention i.e. calling for humane treatment and judicial guarantees. This is so, as it is difficult to see NSAGs derive legal basis from domestic law of the state they are fighting with. Whether or not these forces are also bound by obligations coming from human rights law is a subject of further interest but that goes beyond the scope of this short piece.

Fekade Alemayhu Abebe is a PhD candidate at the Graduate Institute of International and Development Studies. The author can be reached at fekade.abebe@graduateinstitute.ch

Observations on the ongoing confrontation in northern Ethiopia from IHL perspective: Classification of the Situation in Focus

November/28/2020

Author: Fikire Tinsae Birhane

https://www.ft.com/content/b888c23a-45ed-4937-9154-3117cc23e202

Introduction

On November 4, 2020, security forces loyal to the TPLF, mainly the regional special forces, made a surprise attack at the Northern Command of the Ethiopian National Defense Force (ENDF). Many people are reportedly killed.

Sometime around midnight of the same day, Prime Minister Abiy announced that he had ordered the military to confront the attackers. The TPLF have admitted that the strike at the Northern Command was carried out in “anticipatory self-defense“. Prime Minister Abiy condemned the attack declaring that  “the last red line has been crossed” by the TPLF after months of alleged provocations.

As the military confrontations continue between the ENDF on the one hand and forces loyal to the TPLF on the other, there are a number of developments begging reflection from IHL’s perspective.

In this part of the post, based on current developments, I will try to show whether IHL is applicable to the confrontations.

Law Enforcement Operation or Conduct of Hostilities?

The Federal Government describes the ongoing situation as a “law enforcement action” against what it regards as an illegal TPFL junta (clique) responsible for grave human rights violations. The TPLF, however, describes it as a war (conduct of hostilities) aimed at subjugating Tigray. The material scope of IHL, i.e. situations in which it applies, is limited to conduct of hostilities. Thus, leaving aside the claims by each side, characterizing the situation on factual grounds is pivotal to determine whether IHL applies in this particular situation.

Ethiopia is a State party to the four Geneva Conventions of 1949 and their Additional Protocols of 1977. If the situation is to fall under the scope of IHL, according to these treaties, it should belong to one of the two classifications, international armed conflict (IAC) or non-international armed conflict (NIAC). This classification depends solely on the identity of the parties. Generally, confrontations between sovereign States against each other would be IAC while confrontations between governmental authorities and organized armed groups or between such groups within the territory of a State would be NIAC. As described in the introduction, the confrontation in northern Ethiopia is being conducted within the Ethiopian territory between the ENDF (representing the State and supported by special forces and militia from the Amhara region) and forces loyal to the TPLF, which administers the Tigray region of Ethiopia. This suggests that if the situation is one of a conduct of hostilities, its nature would be a NIAC.

The TPLF alleges that Eritrean forces are involved in the conflict on the side of ENDF. Many people assume that if this allegation is proven, it would internationalize the conflict. However, involvement of a foreign country on the side of the State, under invitation or consent from the later, would not affect classification of the conflict. This means that even if the allegation of involvement of Eritrean forces is true, the situation would still remain a NIAC.

To determine whether IHL of NIACs applies to the ongoing situation in Ethiopia there are two reference points in the law. These are Common Article 3 (CA3) of the Geneva Conventions and Article 1 of Additional Protocol 2 (APII). The latter, which sets more stringent requirements for its application, is meant to supplement the former. Hence, in situations where the conditions for its application are met, both will apply simultaneously. Hence, there would be no need to check the material applicability of IHL in reference to CA3. However, if the conditions for application of APII are not met, one should still go on to check whether IHL applies to the situation based on Common Article 3 (with the exclusion of APII), which provides for a lower threshold for its applicability.

Is APII Applicable to the Ongoing Confrontations?

Article 1 of APII determines the circumstances in which it applies. Starting with a negative definition that its application is limited to situations that are not covered by IHL of IACs as provided under Article 1 of API, it provides that APII applies to armed conflicts “…which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” As soon as the material conditions as defined in this Article are fulfilled, APII automatically applies. By dissecting the criteria laid down in this Article and analyzing the facts on the ground against each, one can determine whether APII (hence the whole body of IHL of NIACs) applies to the ongoing confrontations in Ethiopia. Accordingly, the situation can be determined to be conduct of hostilities rather than law enforcement operation.

• The place of confrontations

The definition provides that APII applies to armed conflicts “which take place in the territory of a High Contracting Party”. Ethiopia is a high contracting party to APII, and the confrontation is taking place within its territory.

• The parties confronting each other

One of the situations in which APII applies is a situation whereby armed forces of a State confront dissident armed forces. According to the ICRC commentary of the Article, this is a situation “where there is a rebellion by part of the government army or where the government’s armed forces fight against insurgents who are organized in armed groups”. In the ongoing confrontation in Ethiopia, the ENDF (State armed force of Ethiopia) is fighting the armed forces loyal to the TPLF (the dissident force fighting against the Federal government that represents the State).

• The responsible command 

This criterion implies existence of some degree of organization of the dissident armed forces. According to the commentary on the provision, it means “an organization capable, on the one hand, of planning and carrying out sustained and concerted military operations, and on the other, of imposing discipline in the name of a de facto authority.” The ongoing situation reveals the fulfillment of this criterion as the dissident forces, which are composed of special forces of Tigray and fighters defecting from the northern command of the ENDF, are well organized. The TPLF, establishing command and control structure for the dissident forces, demonstrated a capacity to plan and carry out sustained and concerted military operations against the ENDF and to impose discipline in its name.

• Control over a part of the territory

The article provides that the dissident armed forces must be able to exercise “such control over a part of [the High Contracting Party’s] territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”. It goes without saying that TPLF, as the administrator of the Tigray region, has control over this part of the territory of Ethiopia.

• The sustained and concerted character of military operations

Fulfilment of this condition is what effectively determines control over a territory. According to the commentary, “sustained” is to mean that the operations are kept going or kept up continuously while “concerted” refers to military operations conceived and planned by organized armed groups. Since November 4 operations by both sides kept going as conceived and planned by each side.

• Ability to implement the Protocol

According to this criterion, being under responsible command and in control of a part of the territory concerned, the dissident group must be in a position to implement the Protocol. This relates to existence of a minimum infrastructure required to apply the rules entrenched under APII at the disposal of the group. As an administrator of one of the ten federating units of Ethiopia for about 30 years now, it would be reasonable to conclude that the TPLF has ability to implement APII.

Conclusion

 As facts on the ground suggest that the ongoing confrontation between armed forces of the Federal government and the dissident forces of TPLF fulfill the conditions laid down under APII for its application. Accordingly, it can be concluded that the confrontations qualify as conduct of hostilities.

Fikire Tinsae Birhane
Lecturer of Laws and Human Rights, School of Law, Hawassa University.
Doctoral Student, Institute of International and Comparative Law in Africa, University of Pretoria.
Email address: ftinsae@gmail.com/fikire.birhane@graduateinstitute.ch

Artificial Intelligence in Warfare: How is it a contemporary challenge to the principle of distinction?

November/26/2020

Author: Yoseph Genene

Image source: https://thebulletin.org/2018/04/why-the-world-needs-to-regulate-autonomous-weapons-and-soon/

Have you ever wondered how YouTube videos are recommended for you or how the ads and suggestions relating to your previous activities on the internet like Facebook or any other social media platforms came from? Saving the data and privacy concerns for another time, the immediate answer we get for what’s behind all these is artificial intelligence algorithm. More than we care to admit, Artificial Intelligence (AI) is tremendously affecting our daily lives.

Humanity has always been fascinated about creating an artificial life. The concept of AI as some researchers argue dates back to ancient Greek mythologies. Hesiod`s Talos, the bronze man to be the warder of crete incorporate the idea of intelligent robot. Hesiod’s originally described Pandora as an artificial, evil woman built by Hephaestus and sent to Earth on the orders of Zeus to punish humans for discovering fire.

Oxford dictionaries define AI as a theory and development of computer systems able to perform tasks normally requiring human intelligence, such as visual perception, speech recognition, decision-making, and translation between languages. Humankind has a lot of experiences pulling in emerging technologies to military use; AI is no exception. IHL is not opposed to new technologies in warfare. Nonetheless, it requires that any new technology of warfare must be used, and must be capable of being used, in compliance with existing rules of IHL.

One of the fundamental principles of IHL which is the principle of distinction dictates that “the parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians”.

Combatants must also distinguish themselves (i.e., allow their enemies to identify them) from all other persons (civilians), who may not be attacked nor directly participate in the hostilities. 

The introduction of AI in armed conflicts has perceptibly brought challenges in IHL, especially to the principle of distinction. Such technological fifth generation warfare methods cannot discriminate between combatants and non-combatants or other immune actors such as service workers, retirees, combatants that are wounded, have surrendered, or are mentally ill in a way that would satisfy the principle of distinction. For example, in Pakistan an attempt to kill 41 men resulted in the deaths of an estimated 1,147 people. Also, in Yemen 17 named men were targeted multiple times but the strikes on them killed 273 people; at least seven of them are children. Both attacks were conducted by US drones. From 2004- 2014 the number of US drone strikes in Pakistan reached 400. Research by the Bureau of Investigative Journalism finds that fewer than 4% of the people killed have been identified by available records as named members of Al- Qaeda.

What jeopardizes the principle of distinction is that we do not have an adequate definition of a civilian that we can translate into computer code. The Geneva conventions do not provide a definition that could give a machine with the necessary information. Additional Protocol I defines a civilian in the negative sense as someone who is not a combatant. AI lack components required to ensure compliance with the principle of distinction. First, they do not have adequate sensory or vision processing systems for separating combatants from civilians. Even if the machines had adequate sensing mechanisms to detect the difference between civilians and uniform-wearing military, they would still be missing battlefield awareness or common sense reasoning to assist in discrimination decisions, as like article 44(3) of the Additional Protocol I of the Geneva Conventions acknowledges, “there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself.”

SKYNET, uses machine learning algorithm on the cellular network metadata of individuals to try and rate each person`s likelihood of being a terrorist. As most big data businesses, 0.0008% false positive rate seems very low. But, unlike other businesses its failure is not about unwanted YouTube recommendations or displaying an ad to the wrong person; here it is between life and death of a human being. Therefore, if we take 0.0008% of let’s say 60 million population its 48,000 innocent civilians that will be targeted. Accordingly, AI algorithm will consider them as a as threat and certainly they will be a victims of an attack.

IHL states that solely the presence of military or civilians direct participation in hostilities (DPH) among the civilian population does not deprive the population a protection from an attack. This requires the need for military commanders to issue context-based decisions. In addition, identifying hors de combat and combatants or civilians DPH surrendering also require a contextual analysis, and the ability to interpret human intentions. AI inherently lacks both capabilities, which are of a paramount importance according to IHL. 

The ideal solution for AI in warfare to comply with the principle of distinction would be full-fledged automatization of the battlefield in the foreseeable future. Thereupon, it will lead us to “bloodless fights” due to the exclusion of humans from the battlefield with combat predominantly conducted between AI guided machines.

When we come to the feasible measures to achieve the ultimate purpose of IHL which is to limit effects of armed conflict for humanitarian reasons, and particularly to exercise the principle of distinction in warfare we can suggest two recommendations. The first one will be arranging methods to team up human intelligence in interpreting machine languages inputs. Secondly, the international community should closely monitor conflicts that implement the use of AI in warfare so as to further prevent, halt and sanction actions of the perpetrators.

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.