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Instant Non-international Armed Conflict? Classifying the situation in Northern Ethiopia under IHL

December 9, 2020

Tadesse M. Kebebew is a Ph.D. Candidate at the Graduate Institute of International and Development Studies, a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights, and a researcher at the platform for International Water Law of the Geneva Water Hub. He previously served as a Research and Technology Interchange Director of Dire Dawa University, and as Lecturer in Law at the College of Law, Dire Dawa, Ethiopia.

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Joshua Joseph Niyo is a PhD Candidate at the Graduate Institute of International and Development Studies, a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights, and an Assistant Lecturer at Uganda Christian University. His current research focuses on the norms, principles and contemporary challenges regarding the control of territory by armed-non state actors in non-international armed conflicts. Joshua received the inaugural best conference paper prize at the Association of Human Rights Institutes (AHRI) 2019 Conference for his paper ‘Legal Obligations for Armed Non-State Actors: Can IHL and IHRL Learn from Each Other?’.

Introduction

The seemingly sudden outburst of significant violence in Northern Ethiopia has raised international concern, as well as critical legal paradigmatic issues. Accordingly, in this post, we evaluate this current situation in Ethiopia in light of international humanitarian law (IHL) requirements for the classification of armed conflicts. The post argues that the carefully planned, coordinated, and executed attacks by the Tigray People’s Liberation Front (TPLF), which resulted in intense fighting in Northern Ethiopia, are sufficient to trigger an “instant non-international armed conflict” (NIAC).

A Political Backdrop to the Conflict

For almost three decades since the beginning of the 1990s, TPLF dominated the military, politics, and economy in Ethiopia. The dominance, allegations of pervasive corruption, and reports of repression of political opposition, created deep discontent and resentment in the country. Consequently, a widespread protest effectively ended TPLF’s reign, ushering Dr Abiy Ahmed to the helm, as Prime Minister of Ethiopia in 2018. On taking office, Prime Minister Ahmed dissolved the ruling coalition, the Ethiopian People’s Revolutionary Democratic Front (EPDRF) in December 2019, and formed a new party titled the Prosperity Party. This move was particularly opposed by the TPLF, which also rejected the opportunity of joining the new Party. The new Prime Minister relieved scores of TPLF officials from top ministerial positions, the military, and national intelligence and security sectors, which visibly reduced TPLF’s influence.

The top TPLF officials withdrew to the Tigray region, Northern Ethiopia, where TPLF is the ruling party, and started challenging the authority of the new Prime Minister, claiming that he sought to centralise power; a move considered by them, as a threat to the federal system of governance. The tension peaked recently, when TPLF rejected the decision made by the National Electoral Board of Ethiopia (NEBE), to postpone the national election from August 2020, on account of the COVID-19 pandemic. The House of Federation, which is the body entrusted with the interpretation of the Federal constitution, upheld this NEBE decision. However, the TPLF in opposition to such postponement conducted a regional election in September. The Federal government subsequently took measures, including the suspending of funding to the Tigray region; a move dubbed as a ‘declaration of war’ by the TPLF.

With tension at its boiling point, TPLF’s attack on the Ethiopian army’s Northern Command in the early hours of 4 November 2020 was the last straw. These lightningpre-emptive strikes in self-defense’ (as dubbed by a TPLF official), triggered an immediate response from the Ethiopian National Defense Force (ENDF), with the Prime Minister declaring that the TPLF had crossed a red line. The Federal government called the measure in response a ‘law enforcement operation against a ‘rogue clique’’ and declared a six-month state of emergency in the Tigray region. Currently, the conflict subsists, with rising death numbers reported, and thousands fleeing the fighting; indeed, a humanitarian crisis is impending.

Determining the Existence of a Non-international Armed Conflict in Northern Ethiopia: A Review of the Non-State Actor and its Operations

Though Common Article 3 of the 1949 Geneva Conventions (CA3) applicable to NIACs does not provide a definition and the criteria for the classification of situations, it is generally accepted that the assessment of whether a situation amounts to NIAC thereunder, is made based on two cumulative objective criteria: the existence of certain threshold of violence (intensity), as well as a sufficient level of organization of the armed groups taking part in the hostility. (See Tadic 1995, para.70; Lubanga, 2007, para.233; International Committee of the Red Cross (ICRC), Commentary to GC I, para.421, and Geneva Academy, RULAC page) It is well established that IHL of NIAC does not apply to situations of internal disturbances and tensions, including riots, isolated and sporadic acts of violence and other acts of a similar nature. (See ICTY, Prosecutor v. Limaj, 2005, paras.84-90, and Article 1(2) of the 1977 Second Protocol Additional to the Geneva Conventions (AP II).)

  1. (1) Organisation Requirement

Concerning the level of organisation of the parties to NIACs, there is a general presumption that state armed forces are sufficiently organised; hence, there is no independent assessment of such criterion for state armed forces. For armed groups, it has to be established that such a group is sufficiently organised, to be considered a party to a NIAC. For such determination, there are several indicative factors, including: the requirement for the group to have a command structure and disciplinary rules and mechanisms; it should possess the ability to procure, transport, and distribute arms; have headquarters and/or control territory; display the ability to plan, coordinate and carry out military operations and use military tactics; and, be able to speak in one voice including negotiating and concluding different agreements in relation to the conflict. (see ICTY, Boškoski & Tarčulovski, 2008, paras.199-203; Haradinaj, 2008, para.60; ICRC, Commentary to GC I, paras.429-431)

In this regard, the TPLF presents a very peculiar status as an organised non-state party to a possible NIAC. The TPLF, the ruling political party of the Tigray region, has been training and arming its regional forces – ‘special force’ – particularly since 2018, in thousands, predictably, in the hundreds of thousands. According to some sources, the region has ‘a large paramilitary force and a well-drilled local militia, thought to number perhaps 250,000 troops combined’ of which some 30,000 – 60,000 are effective fighters. Moreover, an official from the region also claimed that some members of the ENDF deployed to the region had defected and joined the regional force; a position the Federal government has insisted is a ‘false claim’. The organisational capacity of TPLF is further illustrated by its capacity to carry out attacks outside of its strongholds, including the capital of Eritrea. However, one would question whether this constitutionally recognised regional government, with quasi-state characteristics fits within the mold of a typical armed group. It could be suggested in response, that an analogy here to the “dissident armed forces” referenced under Article 1 (1) AP II can be helpful. The question though would still remain whether the TPLF presents a situation of rebellion by part of the government army, since the TPLF armed forces can ordinarily exist in parallel to the ENDF. Certainly, this would be a critical issue to address from a political or policy angle, especially where constructive engagement would be necessary to foster adherence to IHL. Beyond the legal categorisation as an organised non-state party for IHL purposes, the peculiarity and relative sophistication of the TPLF could present an opportunity for deeper reflection in view of the need to apply broader international law obligations, particularly under international human rights law (IHRL). Such IHRL obligations could comprise both negative and positive obligations, in view of the governmental and state-like nature of TPLF’s control of the Tigray region. One could go further, as Sivakumaran suggests, and consider which additional rules under the IHL framework of occupation law, could be considered by analogy to apply to the TPLF.

(2) Intensity of violence

Regarding the threshold of intensity of violence, it needs to reach a certain level to trigger the application of IHL of NIACs. Accordingly, the ICTY authoritatively pointed out certain indicative factors, which include: the seriousness of attacks and whether there has been an increase in armed clashes; the spread of clashes over territory and over a period of time; any increase in the number of government forces, as well as mobilisation and the distribution of weapons among both parties to the conflict; and, whether the conflict has attracted the attention of the United Nations Security Council (UNSC), including whether any resolutions on the matter have been passed. (see ICTY, Boškoski & Tarčulovski, 2008, para.177; Haradinaj, 2008, paras.49 and 90-99; and ICRC, Commentary to GC I, para.432) Moreover, the number civilians fleeing the zone of hostilities; the deployment of peacekeeping missions; calls of the international community for the respect of international humanitarian law; or whether attempts are made to broker ceasefire agreements, could also be illustrative factors. (Geneva Academy, RULAC intensity of violence)

In the circumstances, from publicly available data, the TPLF attack on the Ethiopian army command on November 4th resulted in many deaths, injuries and property damage. Despite limited available information due to an Internet and telephone blackout, it was reported that many federal troops were killed and wounded in the fighting, and there were claims that the TPLF forces also suffered losses. It is reported that the numerous divisions of the Northern Command were attacked by the special forces of the TPLF and infiltrators. The TPLF fighters claimed that they took control of the headquarters and assets of the Northern Command of the ENDF. Moreover, the TPLF is said to have several S-75 and S-125 surface-to-air missile systems, and recently launched strikes against airports in Bahirdar and Gondar towns of the Amhara region, and Asmara, the Eritrean capital. However, the Federal government claims that the ENDF, fighting alongside Amhara regional forces and militia, is gaining grounds in the ensuing conflict. The ENDF has also conducted a series of airstrikes against selected military targets in and around Mekelle, the Tigray regional capital. The ongoing conflict has killed hundreds, and according to the report from the UN, more than 27,000 civilians have crossed into Sudan refugee camps from Tigray.

A Look at the Duration of Violence: Is this an ‘Instant-NIAC’?

The ‘temporal’ aspect is usually associated with the expression ‘protracted armed violence’ used by the ICTY Appeals Chamber in the Tadic Case for the definition of armed conflict, i.e., an ‘armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State.’ (ICTY, Tadic 1995, para.70) As discussed under the ICRC Commentary to CA3, ‘duration’ is not an independent criterion but only forms one indicative factor in the determination of ‘intensity of violence’. However, from a practical perspective, an independent requirement of duration could, according to the Commentary, lead to a situation of uncertainty concerning the applicability of IHL during the initial phase of fighting regarding those expected to respect the law. It could also lead to a belated application in cases where IHL’s regulatory force was already required at an earlier moment. (ICRC, Commentary, paras.438-444)

Similarly, there is an issue regarding the expression ‘protracted armed conflict’ under Article 8(2)(f) of the Rome Statute. It is not clear whether it was intended to imply a new form of NIAC or simply served the purpose of preventing the inclusion of the restrictive criteria of AP II in the Rome Statute. Nevertheless, the ICC to date has only used criteria similar to the ones developed by the ICTY, i.e., the two cumulative criteria – intensity of violence and level of organization, and has not used ‘duration’ as a separate criterion. (ICC, Lubanga 2012, para.538Katanga, 2014, para.1187)

Consequently, the question is whether an ‘instant-NIAC’ is possible. The ICRC Commentary indicates that ‘hostilities of only a brief duration may still reach the intensity level’ if other indicators justify such an assessment. (ICRC, Commentary, para.440). In jurisprudence, there are contradictory approaches. The Inter-American Commission on Human Rights, in the Tablada case, dealt with such a scenario – a brief exchange of fire lasting for about 30 hours (between 23 and 24 January 1989) following an attack against an army barracks located at La Tablada, Buenos Aires province, by 42 armed persons against an army barracks. The Commission specified that drawing the line separating a violent situation of internal disturbances, from the ‘lowest’ level of a NIAC, is a delicate exercise. The ultimate decision should be made in ‘good faith and objective analysis of the facts in each particular case’. (IACHR, Tablada case, 1997, para.153) Taking into consideration the unique nature of the attack, that is, the fact that ‘the attackers involved carefully planned, coordinated and executed an armed attack, i.e., a military operation, against a quintessential military objective – a military base,’ it concluded that the situation amounted to a NIAC (Tablada case, para.154).

Conversely, in the Fuel Tankers case, the German Federal Prosecutor General at the Federal Court of Justice (Decision to Terminate Proceedings, 2010, pp. 34–35) confirmed the existence of a NIAC whilst indicating, “the hostilities carried out with armed force must usually last significantly longer than hours or days”. However, one commentator argues that “[u]nfortunately we are not informed about the reasons for this decision, so we can only speculate that it was the growing strength of the Taliban, and the increasing intensity of the conflict, that led the Prosecutor to eventually conclude that the threshold of Art 3 of the Geneva Conventions was met”. From the foregoing though, it appears clear that the ‘protracted’ nature of the conflict could, at best, be one of the indicative factors for the progression of, or movement towards, the required level of intensity. In Boškoski & Tarčulovski, the ICTY Trial Chamber endorsed the existence of the level of intensity for a NIAC, while noting that despite the clear escalation of violence for a period of 8 months, “there remained relatively few casualties on both sides and to civilians [with] […] highest estimates put[ting] the total number of those killed during 2001 as a result of the armed clashes at 168 […] [with] material damage to property and housing […] [at] relatively small scale. (Boškoski & Tarčulovski, 2008, paras. 244, 249) Indeed, “protractedness” can outweigh low causality numbers and small-scale damage to property, to produce the required level of intensity. Nevertheless, for specific situations, like in Tablada, it may be necessary for an earlier classification, especially where the effects of the armed conflict are significant (as distinguished from Boškoski & Tarčulovski) and very much in the mold of a full-on armed conflict. In the latter situations, the purpose of “protractedness”, arguably, ceases to be relevant, where the impact and nature of attacks is significantly high. 

Back to the Ethiopian situation, in similar fashion to the situation considered under the Tablada case, the TPLF carefully planned, coordinated and executed armed attacks on different military bases of the Ethiopian army’s Northern Command on November 4th. The incident prompted the Prime Minister to instantly order the ENDF to take measures against the TPLF, ‘to save the country and the region from spiralling into instability’ and that resulted in a continued hostility. Though, the government called the military operation a ‘law enforcement operation’ against a ‘rogue regional force,’ under IHL such subjective assessment of the situation does not affect the legal classification of the conflict. Objectively, the level of impact of the singular operations of November 4th portrays the need for the triggering of IHL to govern the clearly heightened level of methods of warfare, as well as the advanced means that are not characteristically used in regular law enforcement operations. This heightened situation has also attracted the attention of international organizations, including the UNSC.

Conclusion

Considering all these, one could plausibly argue that the requirement for a temporal factor in determining the intensity of violence is overridden by the clear short, but amplified intensity and concentration of violence in the Tigray region. The conflict in Ethiopia epitomizes a scenario where a NIAC could exceptionally be triggered in an instant manner where the armed group’s sufficient level of organisation is met, and there exists carefully planned, coordinated, and executed attacks that devolve into instant intense fighting involving well-equipped forces. Accordingly, the situation in Northern Ethiopia can be classified as an ‘instant-NIAC’ to which IHL of NIAC, including AP II, applies.

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