November 24, 2020

Law enforcement operation or an armed conflict?

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The conflict in Tigray and International Humanitarian Law

Avatar: Juhar Sultan Yesuf
By Juhar Sultan Yesuf

Juhar is a contributor for AddisZeybe and an LLM student at the University of Galway

Law enforcement operation or an armed conflict?

Almost three weeks have now passed since the tension between the Tigray Regional State and the Federal government spilled over into conflict following an attack by the TPLF on the Northern Command of the Ethiopian National Defence Forces at the beginning of November. The Ethiopian prime minister has stated that the two stages of the “military operation” in the region have been concluded successfully with the final assault on the capital Mekele - where most TPLF leaders are said to have been based for a majority of the past two years - expected to form the third and final stages of the conflict in the region. On the other hand, the TPLF has continued to fight on all fronts, according to the Communications Head of the front, Getachew Reda.

Unfolding Humanitarian Concerns in the region

Overwhelming rates of forced displacement 

As the conflict continues to unfold - at times threatening regional instability -  it is resulting in numerous humanitarian concerns including an increase in the number of forcibly displaced persons. According to the most recent report by the UN Agency for Refugees (UNHCR), over 40,000 Ethiopians have fled to neighbouring Sudan since the onset of the conflict with average daily arrivals standing at a staggering 4,000 arrivals in a day. Last Saturday the UNHCR staff at Haymadyet border in Kassala State and the Lugdi crossing in the Gedaref State said these numbers are overwhelming the humanitarian situation in the region. The situation is put into further perspective when one considers the fact that the UNHCR had anticipated a maximum of 20,000 refugees to cross the Ethio-Sudanese border in the first month of the conflict. In recognition of the severity of the situation, the UNHCR has called on both parties to the conflict to respect international humanitarian law, introduce a temporary ceasefire in order to establish humanitarian corridors necessary for the delivery of timely aid to affected persons as well as calling on all parties concerned in the conflict to protect civilians and refugees living in the region amidst the conflict with respect to areas under either party’s control. 

The International committee of Red Cross Ethiopia expressed its deep concern that a military escalation in northern Ethiopia could trigger a wider humanitarian emergency in which people are displaced from their homes and unable to meet their basic needs. This can be averted if people's lives and property are protected and respected. The committee said in the above statement that it is “extremely concerned about the humanitarian implications of escalating violence in the Tigray region of Ethiopia, where over two million people are already in need of humanitarian assistance.” According to the UN Office of the High Commissioner for Human Rights, there were already 100,000 internally displaced persons in the region prior to the onset of the conflict while an additional 600,000 persons in the region required humanitarian assistance due to several drivers of humanitarian need in the region. This is threatened to be exacerbated as a result of the current conflict in the region. 

The refugees in the Tigray region 

In addition to this, nearly a hundred thousand refugees living in the region find themselves trapped in the conflict, of which not much information is available. Most of these are from Ethiopia’s northern neighbour, Eritrea - which has been identified by the TPLF as a foriegn aggressor currently playing an active role in the conflict. Displaced communities have moved towards the city of Shire in the region and other inland parts of the country. The UNHCR and the UN Office of the High Commissioner on Human Rights (UN OCHA), this is a serious concern that must be addressed as soon as possible. According to the latest situation update by the UN OCHA released on November 23, 2020, refugees (96,000) and internally displaced persons (100,000) in the region risk not having clean water because of the lack of fuel necessary to run water pumps in refugee and IDP camps. The Ministry of Peace is said to be coordinating with the National Disaster Risk Management Commission (NDRMC) and the Agency for Refugee and Returnee Affairs (ARRA) in order to provide humanitarian support to displaced communities in the Tigray, Afar and Amhara regions, according to the UN OCHA. 

Attacks on innocent civilians 

Concurrently forming a key portion of the current humanitarian concerns associated with the conflict in the north, attacks against civilians in different parts of the country have been associated with the country. In Mai-Kadra, it was reported that hundreds of civilians were hacked and beaten to death following a military operation that saw the TPLF forces succumb to the Ethiopian Defence Forces in the area. The Ethiopian Human Rights Commission and Amnesty International said last Thursday, that  hundreds of civilians were killed in the region on November 9.  According to a statement released by the commission today, the number of victims is close to 600 with the culprits of the crime being identified as an extremist group known as the Samiri, a group made up of Tigraian youth. The commission described the act as an "atrocious crime of massacre against civilians" stating that it will continue to disclose more information as the situation progresses. The Tigray State denied its involvement in the reported killing. 

In Metekel, an attack on a bus left scores of Ethiopian citizens dead as well as several thousands of people displaced following an intercommunal clash in the Konso Zone. The security situation in the Oromia and Southern Nations, Nationalities and Peoples’ Region (SNNPR) continues to be a serious concern according to the UNOCHA. In the above situation report, the office of the commissioner said:

“Humanitarian partners in Ethiopia are further concerned about the increasing report of violence in Oromia and Southern Nations Nationalities and Peoples (SNNP) regions. Violent incidents involving unidentified armed groups have been reported on an almost daily basis, mainly in the Western Oromia region, while several thousand people were reportedly displaced by inter-communal violence in Konso zone, SNNPR on 16 November”

Aid workers in the conflict zone 

Finally, the safety of humanitarian aid workers has also been identified as a concern in the current conflict. The Ethiopian Red Cross Society (ECRS) has repoerted that combatants opened fire on ECRC ambulances in the Danasha District located in the werstern part of the Tigray region close to the northwestern parts of Gondar. The area is subject to claims by the Amhara regional state despite being located in the Tigray region. 

The ECRC said “This act contravenes international principles and the use of the Red Cross logo; it intervenes in the ERCS’s free humanitarian works, and prevents the implementations of the Geneva Convention signed by Ethiopia.” in response to the above attacks on humanitarian objects also stating that such acts put volunteers key to the provision of humanitarian aid in the region at risk. Currently, the ECRC has dispatched over ten ambulances and numerous volunteers. The society said recently that it is conducting humanitarian operations in line with its Charter (No. 1067/2010) and following rules of impartiality at the heart of its existence as a humanitarian agency. The Ethiopian Human Rights Commission has called for international humanitarian law principles protecting aid workers in the conflict ridden northern parts of the country in a statement it issued on November 14, 2020. In the statement it also asked for humanitarian assistance to form part of the Ethiopian National Defence Forces as well as the State of Emergency task force headed by the Chief of Staff of the Ethiopian Military Forces. 

The UN Chief, Antonio Guterres also called for the opening of humanitarian corridors to assist civilians caught in the fighting, "We have been asking for the full respect of international humanitarian law and also for the opening of humanitarian corridors and the truces that might be necessary for humanitarian aid to be delivered in the areas of conflict," despite not specifying where such corridors could be located. Other local and international commentators have also expressed similar concerns in relation to the conflict in the Tigray region of the country. 

Military operation vs. an Armed conflict

Another important aspect of the humanitarian situation in the Tigray region relates to the categorization of the conflict as defined by relevant provisions within International Humanitarian Law. The issue requires due attention according to Moges Zewdu - a postgraduate candidate at the Vienna Academy of International Studies. According to him, it is important to identify the typology of the conflict because of its legal implications towards the above humanitarian concerns coming out of the conflict in the north. As such to Moges the categorization of the conflict as a “military operation to restore the rule of law” has significant legal implications affecting the discourse around accountability and adherence to the rules of war in international humanitarian law. The Ethiopian authorities, however, have repeatedly categorized the situation in the north as “a law enforcement operation” against a select group - what it refers to as junta - within the TPLF. The tweet below by the Commander In Chief of the Ethiopian National Defence Forces, Abiy Ahmed captures this mainstream policy of the government.

The defining elements of an armed conflict leading to a conclusion on the typology of the current conflict are provided for under the third geneva convention, customary international humanitarian law and common article 3 which applies across the board in most cases of armed conflict. The two most common forms of conflict in contemporary international humanitarian law are International Armed Conflicts (which involve two or more sovereign nations engaging in armed conflict) and Non-International Armed Conflicts (which is more pertinent to the current situation. According to Yonas Birmeta - an Assistant Professor of Law and former head of the Addis Ababa University School of Law - international armed conflicts are identified as such after considering the geographic limits of the conflict (whether the conflict is taking place on the territory of a single State or multiple ones), the involvement of regular armed forces fighting other armed groups, the extent of effective control of the region, as well as the intensity and means of warfare employed in the conflict. According to him, these are all present in the current conflict in the region, despite the narrative by the government. 

To Yonas Birmeta (PhD) - who has been teaching international humanitarian law and refugee law at Addis Ababa University for over two decades - considering the current conflict as a law enforcement operation by declaring a state of emergency in the region has immense ramifications. Explaining to Addis Zeybe why the government has refrained from categorizing as an armed conflict, Yonas said, “Even if there is armed conflict in the country, the  government does want to admit the existence of war for the because classifying the conflict as armed conflict would give the adversaries a recognized legal status (quasi-legal) in international law. The government wants to keep it a domestic matter avoiding any involvement of external actors in the conflict”. He also added that the government seems to categorize the TPLF as an organized political group with involvement in criminal activities in the country, making them common law criminals as opposed to parties to an armed conflict. This makes it suitable for the government  to apply domestic criminal provisions in addressing its point of difference with the TPLF led Tigray Special Forces and Militia. 

Moges Zewedu Teshome, A former lecturer of laws at Haramaya University - does not agree with the government’s assertion of the ongoing conflict as a law enforcement operation. Instead he told Addis Zeybe that to call a certain situation a law enforcement operation, it must be pre-planned, targeted, limited and should be undertaken against clearly stipulated groups of people. “This is not the reality at the moment.” Moges argues against the narrative by the Ethiopian authorities. Reflecting on the current situation in the region Moges said “The reality is that the government is responding to an attack on its defence forces within the Northern Command of the military. It was not pre-planned, nor is it targeted against a select group of people. The two parties are in a full blown military confrontation at the moment”. Offering his expert opinion on the matter, Moges says the conflict in the north is a classic case of a non-international armed conflict because it ticks the requirements put forth by international humanitarian law and jurisprudence also stating that it is important the government recognize the conflict as a non-international conflict in order for the humanitarian concerns raised in the previous section of this article.  

Addis Zeybe posed the above question regarding the typology of the conflict to the Federal Attorney General’s Office to which the Head of Communications Awel Sultan chose to refrain from commenting. The head of communications said to Addis Zeybe“The ongoing law enforcement operation in the Tigray region should be conducted by obeying the basic norms of humanitarian law and adhering basic human rights norms protecting non-combatants, non-military infrustructures, aid workers and humanitarian emblems.” However, Awel refrained from further comments regarding the typology of the conflict in the Tigray region.

How International Humanitarian Law works? 

In international humanitarian law, there are indicative elements used to categorize the conflict as non-International armed conflict.  The duration of the conflict, the frequency of the acts of violence and military operations, the nature of the weapons used, displacement of civilians, territorial control by opposition forces, the number of victims (dead, wounded, displaced persons, etc.) are key considerations before rendering a verdict on the typology of a conflict. Dr. Yonas  says the circumstances of the current conflict meet most of these requirements. If so he says provisions within the Additional Protocol II of the 1977 Geneva Convention apply to the current conflict. 

Both Yonas and Moges told Addis Zeybe that, in times of the war, the proper implementation of domestic and international laws will restrain unnecessary suffering and death resulting from the means and methods of warfare employed by both parties. They also believe it is integral to guaranteeing the safety of aid workers, non-combatants, and infrastructures that are not of military value from being destroyed (like the fate of the Axum International Airport). They also called on the humanitarian corridor to be opened by both warring parties to the conflict allowing life saving and timely assistance to be rendered to affected communities in the region before stating that the government has the responsibility to respect and protect citizens from growing human rights concerns as well as refraining from committing violations amid the armed conflict in the region.  

Ethiopia ratified the Geneva Convention of 1949 on October 2 1969 and acceded to the two additional protocols on the 8th of April 1994. In addition to that, it is also a member of mosty international and regional human rights instruments forming key portions of international humanitarian law on top of being subject to customary international law. The conflict in the northern region of the Ethiopian federation is raging on, despite international calls for negotiation and reconciliation being sent from different  parts of the world.  





The above article is part of Addis Zeybe’s recently launched investigative reporting project which seeks to identify, research and unmask human rights abuses in Ethiopia instigated by both state and non-state actors, especially during the coronavirus pandemic.