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News Roundup 28 December – 3 January

January 6, 2021
  1. Yemen: Fatal airport attack ‘potentially amounts to a war crime’ – UN envoy
  2. Viewpoint: Why Ethiopia and Sudan have fallen out over al-Fashaga
  3. Colombia’s FARC delivers a fraction of pledged peace deal assets by deadline
  4. UN confirms closure of Darfur peacekeeping mission
  5. UN-AU mission in Sudan’s Darfur ends mandate after 13 years
  6. United Nations, African Union reiterate commitment to Sudan, as joint mission ends operations
  7. Guinea-Bissau: UN chief commits to continued support as peacebuilding office closes
  8. Myanmar military extends non-operation period against armed groups for one more month

News Roundup 21 December – 27 December

December 29, 2020
  1. UN probe accuses Mali army of war crimes, armed groups of crimes against humanity
  2. CAR rebel groups announce ceasefire ahead of Sunday vote
  3. Russia, Rwanda send military support to Central Africa Republic to quell election violence
  4. Malian refugees return to Burkina Faso camp nine months after violent attacks
  5. Iraq: Trump pardons for Baghdad Blackwater guards ‘contributes to impunity’ says UN rights office
  6. Illegal Gold Mining Funding Armed Groups in Sahel: Interpol
  7. Mozambique’s Cabo Delgado: Militants advance as aid access shrinks
  8. Return to ‘path of meaningful negotiations’, UN envoy urges Israelis, Palestinians
  9. Libya’s warring sides begin prisoner exchange

News Roundup 14 December – 20 December

December 23, 2020
  1. Afghan government, Taliban to resume peace talks in January
  2. Armenia and Azerbaijan exchange first prisoners after Karabakh war
  3. Standing up to the bandits: A Nigerian community looks to forge its own peace
  4. What next for conflict-hit Burkina Faso after Kabore re-election?
  5. Nigeria: Stop Jailing Children for Alleged Boko Haram Ties
  6. India, Pakistan repeat war of words over ‘cross-border terrorism’
  7. Ukraine: ICC investigation a crucial element for comprehensive international justice
  8. UN documents 375 killings in Colombia in 2020, urges Government action
  9. Ethnic profiling of Tigrayans heightens tensions in Ethiopia
  10. ICC prosecutor sees ‘crimes against humanity’ in Philippines

Geneva Call Report: Conduct of Hostilities by Armed Non-State Actors

December 17, 2020

This week, Geneva Call published a new report on the Conduct of Hostilities by Armed Non-State Actors (ANSAs). The report emerges out of the third edition of the Garance Talks, which took place on February 2020, and focuses on the application of the rules of IHL governing this topic: distinction, proportionality and precaution.

The 2020 Garance Talks brought together four ANSAs from various regions of the world and experts from academia and international humanitarian organizations to discuss current challenges faced by ANSAs when attempting to comply with humanitarian norms. The Garance Talks aim at identifying ways forward in order to enhance their compliance with their obligations under international law. An important added value that this activity generates is an understanding of these actors’ perspectives on the legal and policy discussions that concern them.

The report includes a legal analysis on the topic and some selected examples of ANSAs’ practice and views on the rules applicable to the conduct of hostilities in armed conflict. Two main challenges were identified from the discussions. Firstly, from a “capacity” perspective, it remains unclear whether ANSAs have the capacity to implement rules that were primarily designed for the armed forces of States, which usually – although not always – have a more sophisticated level of organization than ANSAs. There is an assumption, however, that parties to the conflict: (i) will be able to use a certain type of uniform to differentiate their fighters from those not participating in the hostilities; (ii) will have the knowledge on how to undertake a proportionality assessment; and (iii) will be able to apply precautionary measures, both in the planning and execution of an attack and those against the effects of attacks, as envisaged in IHL. Second, despite the existence of these practical difficulties, the discussions demonstrated a general agreement among ANSAs on the importance of these rules. Yet certain definitions, such as those of “civilian” and “direct participation in hostilities”, varied according to each context, showing the existence of interpretative differences between the ANSAs themselves.

The 2020 edition of the Talks was organized in the context of a research project undertaken by the Geneva Academy of IHL and Human Rights and Geneva Call, which aims at understanding ANSAs’ practice and interpretation of humanitarian norms.

News Roundup 7 December – 13 December

December 16, 2020
  1. Lebanon: UN-backed tribunal sentences Hezbollah militant in Hariri assassination
  2. Ethiopia: UN refugee agency calls for ‘unfettered access’ to Tigray
  3. ‘Quickly restore the rule of law’ in Ethiopia’s Tigray, urges Guterres
  4. COVID-19 fuels growing conflict and displacement in Colombia
  5. India Accuses China of Helping Rebel Groups on Myanmar Border
  6. China Aiding Rebel Groups in India’s Northeast: Report
  7. Yemen: Houthi Terrorism Designation Threatens Aid
  8. Nigeria-Boko Haram: Prosecutor urges ICC inquiry into war crimes
  9. Sudan at critical juncture in path towards democratic transition, Security Council hears
  10. Libyan Women Seek Greater Participation in Peace Talks

Negotiating Peace with (Proscribed) Non-State Armed Groups

December 16, 2020

Dr Asli Ozcelik Olcay (@AsliOzcelik_) is a Postdoctoral Researcher in International Law at the University of Glasgow, where she is also the Academic Coordinator of the Glasgow Centre for International Law and Security. Her research explores the role of international law in peace-making.

“We don’t negotiate with criminals… We bring them to justice, not to the negotiating table”, responded an aide to the Prime Minister Abiy Ahmed of Ethiopia to calls by the African Union on the Ethiopian government to enter into talks with the Tigray People’s Liberation Front (TPLF) to end the conflict that erupted in the country last month (see also the “Argument” by the former Prime Minister of Ethiopia against talks with the TPLF here). The longstanding “we don’t negotiate with criminals/terrorists” mantra has once again emerged as an argument against peace negotiations with non-state armed groups (NSAGs), particularly those designated as terrorist organisations, also in other ongoing conflicts. In Mali, the French Foreign Minister opposed the attempt of Mali’s Interim Prime Minister to enter into dialogue with the NSAGs fighting in the north of the country, including Al-Qaida-affiliated, proscribed (see, e.g., here, here and here) Jama’at Nusrat al-Islam wal-Muslimin, on account of the terrorist designation of such groups. Proscribed groups, or groups associated to proscribed groups, are also excluded from both the Geneva and Astana tracks in the Syrian peace process.

Beyond episodic strategies, whether certain (members of) NSAGs are “beyond the pale” has become a general consideration in peace-making and peace mediation. For instance, the UN Guidance for Effective Mediation states (2012, p. 11):

“Arrest warrants issued by the International Criminal Court, sanctions regimes, and national and international counter-terrorism policies … affect the manner in which some conflict parties may be engaged in a mediation process. Mediators need to protect the space for mediation and their ability to engage with all actors while making sure that the process respects the relevant legal limitations.”

The aim of this blog post is to explore the extent to which peace negotiations with NSAGs are proscribed by (international) law, as well as the policy considerations at play in such engagement. The blanket exclusion approach, adopted in the context of the current conflicts mentioned above, does not seem to be warranted on either ground.

Legal limitations to negotiations with non-state armed groups

From a legal perspective, negotiating with members of NSAGs may face limitations mainly where: (i) a group is designated as a terrorist organisation, or (ii) an engaged member of the group is the subject of an arrest warrant or summons issued by the International Criminal Court (ICC). As to the former, although there is no such explicit prohibition in international law, some domestic laws criminalise certain forms of engagement with NSAGs. As to the latter, essential contacts with persons subject of an arrest warrant are allowed, however talks with an indicted person are likely to take place outside the territory of any State Party to the Rome Statute to avoid non-compliance with a potential request by the Court for the arrest and surrender of the person.

Negotiating with proscribed non-state armed groups

The listing system of the United Nations and the associated targeted sanctions against the designated individuals and entities, such as asset freeze, arms embargo, and travel and visa bans, do not foreclose negotiations with the targeted individuals and entities. Yet sanctions regimes can “complicate negotiations by creating (or not removing) obstacles to participation in negotiations” (Biersteker, p.3), for instance, by stigmatising engagement with targeted individuals or NSAGs due to travel bans, or by discouraging targeted individuals or NSAGs from negotiations. In practice, there has been a distinction between NSAGs designated as terrorist groups and NSAGs that have been target of sanctions without such designation. Biersteker finds that between 1991-2014 “targeted sanctions [were] imposed in conjunction with formal negotiations 97% of the time”, except for sanctions against Al-Qaida and associated groups (p. 6). As such, negotiations have been largely absent from the UN’s “toolbox” when dealing with designated terrorist groups. Similar to the UN, the listing regime and sanctions imposed by the European Union (EU) do not outrightly prohibit negotiations or contact with such groups, but group-specific measures may include a “no-contact” policy. For example, the Middle East Quartet (comprising the United Nations, the United States, the European Union and Russia) has ruled out negotiations with Hamas (Haspeslagh and Dumasy, p. 7).

Legal obstacles to engaging members of proscribed terrorist groups rather emanate from domestic laws, which criminalise certain forms of engagement with such groups, for instance, by supplying information (such as providing expertise during peace negotiations), providing material support (such as training in conflict resolution and peacebuilding), or arranging meetings (see below for more details). In this respect, Boon-Kuo et al. distinguish between intention-based and list-based liability regimes. The former requires some form of knowledge or intention that the provided information or support will contribute to the criminal activities of the group. For instance, Directive (EU) 2017/541 of The European Parliament and of the Council of 15 March 2017 on combating terrorism requires the offence of “participating in the activities of a terrorist group, including by supplying information or material resources … with knowledge of the fact that such participation will contribute to the criminal activities of the terrorist group” to be punishable in Member States (Art 4(b)).

On the other hand, list-based liability regimes criminalise any support provided to designated groups even in the absence of such knowledge or intention (p. 15). For instance, the so-called “material support” statute in the US establishes as a federal crime certain forms of material support to designated terrorist organisations (18 U.S.C. § 2339B), for the commission of which it suffices that the perpetrator knows of the designation of the group as a foreign terrorist organisation regardless of his/her knowledge of contributing to the group’s criminal activities. In a landmark case brought against the statute, Holder v Humanitarian Law Project, the US Supreme Court opined that “trainings in humanitarian and international law to peacefully resolve disputes” or teaching how to present claims to mediators and international bodies come within the scope of the offence reasoning that “providing material support to a designated foreign terrorist organization—even seemingly benign support—bolsters the terrorist activities of that organization” (pp. 31-32). As the statute provides for extraterritorial jurisdiction over the designated offence, inter alia, on the basis of nationality, permanent residence or habitual resistance of the offender and where “an offender is brought into or found in the United States, even if the conduct required for the offense occurs outside the United States”, it has been considered a significant obstacle to peacebuilding efforts by US nationals and non-nationals alike, and in and beyond the US (see here and A/HRC/23/39, para 23).

In the UK, “a person commits an offence if he arranges, manages or assists in arranging or managing a meeting which he knows is (a) to support a proscribed organisation, (b) to further the activities of a proscribed organisation, or (c) to be addressed by a person who belongs or professes to belong to a proscribed organisation” (Terrorism Act 2000, Section 12(2)). However, the explanatory notes clarify that the Act does not criminalise “genuinely benign meetings … at which the terrorist activities of the group are not promoted or encouraged, for example, a meeting designed to encourage a designated group to engage in a peace process” (p. 7). Such legal clarification in domestic legal systems is significant: although prosecution on these grounds has been rare, as Boon-Kuo et al. point out, “[c]ounterterrorism lists realise their coercive potential through disrupting otherwise lawful associations and forcing actors to change their behaviour to avoid liabilities, rather than simply through initiating criminal proceedings” (p. 8) (see also here).

Negotiating with those subject to an arrest warrant or summons issued by the International Criminal Court

Negotiations with alleged or indicted perpetrators of international crimes have become a sticking point in many peace processes such as in Bosnia, Uganda and Sudan. The Office of the Prosecutor (OTP) of the ICC has issued guidelines asking States Parties to “eliminate non‐essential contacts with individuals subject to an arrest warrant issued by the Court” and if the contact with the group is essential, “to interact with individuals not subject to an arrest warrant” where possible, in order to marginalise the suspects and achieve their arrest/surrender (Prosecutorial Strategy 2009-2012, para 48). The UN Guidance on Contacts with Persons Subject of Arrest Warrants or Summonses Issued by the ICC also states that UN officials, “as a general rule”, should not have meetings with such persons (p. 2), while they can engage with persons subject of summonses to appear insofar as they continue to cooperate with the Court (p. 4). However, if contact is essential and the alternative of engaging with other individuals from the same group or party is not possible, officials may exceptionally interact with a person subject of an arrest warrant “where this is an imperative for the performance of essential United Nations mandated activities” (p. 3).

As such, both the OTP’s and UN’s guidelines leave room for essential contacts with persons subject of arrest warrant, and contact for the purpose of peace negotiations may be justified as essential. In fact, in the context of the negotiations concerning the North-South conflict and the Darfur conflict in Sudan, UN officials met with Sudanese government officials and, when considered essential, with the then President Bashir (Rodman, p. 458). However, any engagement with a person subject to an arrest warrant is likely to take place outside the territory of any State Party to the Rome Statute as, while the person is on the territory of a State Party, the Court “may transmit a request for the arrest and surrender of a person” (Art 89).

Engaging “Negotiable” Non-State Armed Groups

Traditionally, states have been reluctant to engage NSAGs due to the fear of legitimisation of (terrorist) violence and the possibility of the exploitation of negotiations, or any accompanying ceasefire, by NSAGs to gain military leverage on the ground. Following 9/11 and the War on Terror, the “we do not negotiate with terrorists” approach has become entrenched also in the international policy and practice of peace-making (see here, here, here). The fragmentation of NSAGs in today’s protracted armed conflicts and the surge in “violent extremism” and “jihadi violence” cast further doubt over the possibility and pointof engaging such groups. Complex, diffused, transnational, and deterritorialised nature of extremist groups complicates the identification of entry points for engagement and blur their connections to a local population and their grievances. Although there is evidence of tactical negotiations with such groups towards ceasefires and exchange of prisoners, negotiations concerning a peace settlement and the post-settlement political order may seem futile, or unacceptable, to both extremist groups and their possible interlocutors as their ideological demands would not be accommodated (Fazal, p. 32-33). As such, military defeat rather than negotiated settlement appears as a more likely outcome against extremist NSAGs (Kalyvas, p. 44).

That said, whether to cast a NSAG as “beyond the pale” requires context-specific analysis and conceptual caution. As the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism has recently highlighted, armed conflict and terrorism are increasingly conflated, leading to the characterisation of any NSAG engaged in an armed conflict as a terrorist group (A/75/337 (2020), para. 13), which results in a shrinking humanitarian and peacemaking space. Furthermore, even among terrorist groups, scholars and practitioners distinguish between “absolutist” or “nihilist” and negotiable terrorist groups (Zartman 2003; de Soto quoted in Haspeslagh, p. 1). Among negotiable groups may be, for instance, local extremist groups which are associated with transnational networks and at the same time have strong links to a pre-existing insurgency and local grievances, such as the Al-Qaida-linked extremist groups in northern Mali that have emerged in the context of the Tuareg insurgency  (UN/World Bank, p. 23). The Moro Islamic Liberation Front in the Philippines has also proven negotiable despite links to Al-Qaida (Toros, p. 420) and in fact concluded a comprehensive peace agreement with the Philippine government in 2014 (in 2009, the group also signed an action plan on child soldiers which was welcomed by the UN). Eric Rosand and Marc Sommers have recently suggested that the US government “explore negotiated settlements with groups that support violent extremists in whole or in part”, as well as investing in local counterterrorism and conflict resolution efforts, as “[t]he security-heavy approach is falling short because it exacerbates factors that militant groups exploit to provoke violence”.

Conclusion

Research suggests that inclusive negotiations, where all armed groups that can disrupt a peace process if excluded are engaged, are less likely to encourage violence than exclusion (see here, here). Yet, negotiations with some NSAGs in certain circumstances appear to be “beyond the pale” where engagement with a NSAG comes within the scope of a relevant legal limitation and/or negotiations appear futile or counterproductive from a policy perspective. However, where feasible, legal limitations leave considerable scope for diplomatic discretion to focus on underlying grievances and the relationships that need to be transformed. The “diplomatic space” in each peace process needs to be delineated in light of the applicable legal limitations and their addressees rather than simply focusing on the designations of proscription or criminality.

Israel Law Review – Call for Papers

December 15, 2020

The Israel Law Review invites submissions on areas of interest in human rights, international and public law.

The Israel Law Review is a double-blind peer reviewed journal established in 1966, published by Cambridge University Press under the auspices and management of the Minerva Center for Human Rights at the Law Faculty of the Hebrew University of Jerusalem. Under this stewardship, it focuses on scholarship in the fields of human rights, public law, and international law.The Chief editors of the journal are Prof. Malcolm Shaw, QC, University of Leicester, UK, and Prof.
Yuval Shany, Hebrew University of Jerusalem, Israel. Issues of recent years have featured contributions by prominent scholars such asMartti Koskenniemi, Lech Garlicki, David Kretzmer, Yuval Shany and Emanuela-Chiara Gillard.

The journal publishes full-length articles, shorter pieces addressing topical issues under the rubric of ‘opposing views’, as well as book reviews and review essays. We aim to present scholarship that is representative in terms of gender, geographical distribution, and viewpoint. We accept submissions on a rolling basis. 

Consideration will normally be given only to original material that has not previously been published and is not being under consideration elsewhere. All submissionsare subjected to a double-blind review process. For further details on our publication policy and process see here.

For queries and additional information, please contact the academic editor, Prof. Yaël Ronen, at yael.ronen@mail.huji.ac.il.

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.

News Roundup 30 November – 6 December

December 9, 2020
  1. Afghan gov’t, Taliban announce breakthrough deal in peace talks
  2. Yemen: Unchecked violations ‘may amount to war crimes’, Security Council hears
  3. U.N. warns child labor, trafficking on the rise in troubled Mali
  4. Ethiopia war may turn into guerrilla insurgency, experts say
  5. Ethiopia’s Tigray Group, Once Powerful, Now Battles Government Forces in Bid for Survival
  6. Ethiopia: PM Abiy rejects claims army killed civilians in Tigray
  7. ICRC to pull out of war hospital in Lebanon in wide-ranging cuts
  8. Polisario Front & Morocco Renew War in Western Sahara
  9. UN humanitarian office puts Yemen war dead at 233,000, mostly from ‘indirect causes’
  10. U.N. Security Council unlikely to act on Iran scientist killing – diplomats

News Roundup 23 November – 29 November

December 2, 2020
  1. Iran may retaliate in Iraq for killing of scientist: Analysts
  2. Ethiopia’s other conflicts
  3. DR Congo: Former militia leader sentenced to life for war crimes
  4. DR Congo: War crimes conviction ‘an important victory’ for justice – UN envoy
  5. UN officials denounce bombings in northern Syria
  6. UN report finds Gaza suffered $16.7 billion loss from siege and occupation
  7. Alert over growing use of cluster munitions, despite stockpile reductions
  8. Mozambique, Tanzania join forces to tackle Cabo Delgado violence
  9. U.N. alarmed at military build-up around Tigray capital
  10. Four years after FARC peace deal, Colombia grapples with violence