By Gwasira Jasper**
Abstract
From November 2020 to around April 2023, Ethiopia and the Tigray People’s Liberation Front (TPLF) were involved in violent clashes/conflict. At the beginning of the conflict, the TPLF was the regional government of a province in Ethiopia called, Tigray. The TPLF as the regional government had its own regional forces (regional governments in Ethiopia are allowed to have their own forces). These forces launched an attack on a military base of the federal forces of Ethiopia. This attack triggered the conflict between the TPLF and Ethiopia. The government classified the conflict between it and the TPLF as a law enforcement operation. This article through a substantiative analysis shows that the conflict between Ethiopia and the TPLF was a non-international armed conflict (NIAC). In addition, it shows that despite the involvement much later of other rebel groups in assisting the TPLF against Ethiopia, the conflict remained a NIAC. Ethiopia alleged that there were “foreign powers” which at some point were assisting the TPLF. However, they have not managed to provide any evidence to back up this claim. If foreign powers were assisting the TPLF- through controlling them, then the conflict would have turned into an international armed conflict. Furthermore, Ethiopia claimed foreign fighters were at some point assisting the TPLF in the conflict. It is crucial to note, whether the allegation is true or not, the involvement of foreign fighters, in of itself, cannot change the classification of a conflict. The conflict between the parties ended when they signed a peace agreement in April 2023, which allowed the TPLF to form an interim regional government, to govern Tigray province. It is crucial that the law that governed the conflict is known- as there are allegations of the perpetration of numerous crimes during this conflict. It is crucial to note that some things are legal under the law of international humanitarian law which would be illegal during a time when that law does not apply. Therefore, having the knowledge of the applicable legal regime will enable one to know if any crime occurred, if so, what that crime is. This knowledge will significantly aid to bring any alleged perpetrator to justice.
1. Introduction
Regional governments in the Federal Democratic Republic of Ethiopia (Ethiopia) have regional armed forces under their command.[1] Ethiopia controls federal troops.[2] There have been armed clashes between Ethiopia and the Tigray People’s Liberation Front (TPLF).[3] The TPLF, at the beginning of the clashes, in November 2020 was the regional government of Tigray province, a province in Ethiopia, whose provincial capital is Mekelle. These clashes led to the ouster of TPLF from power by Ethiopian forces in November 2020.[4] However, in June 2021, the TPLF managed to recapture Mekelle.[5]
The conflict began on 4 November 2020, when Ethiopian forces launched a military offensive against the TPLF.[6] This was in response to an attack on an Ethiopian military base by the TPLF.[7] However, the TPLF denies involvement in this attack.[8] The clashes between Ethiopia and TPLF continued despite the denial by the TPLF of its involvement in the attack.[9] At the beginning of the conflict, Amhara Regional Police Special Force, (Amhara is a province in Ethiopia, which neighbours Tigray province), Fano Militia and Eritrean military forces were assisting Ethiopia against the TPLF.[10] From July 2021, these forces, were being assisted by regional forces from Oromiya (also known as Oromia), Sidama, and the Southern Nations Nationalities and Peoples’ Region.[11] Although at the beginning of the conflict, Ethiopia and Eritrea denied Eritrea’s involvement,[12] on 28March 2021, Ethiopia for the first time admitted Eritrea’s involvement.[13]
Ethiopia characterised their military operations against the TPLF as a “law enforcement operation,” which had the aim of protecting the constitution and the rule of law.[14] However, the clashes were being classified in some quarters as an non-international armed conflict (NIAC).[15] This begs the question: was it international humanitarian law in particular, NIAC or domestic law relating to law enforcement that governed the clashes between Ethiopia and its allies on one hand against the TPLF on the other? The paper addresses this matter and determines that the conflict was a NIAC. It also discusses the effects of the involvement of Eritrea in the conflict and concludes that the involvement of Ethiopia did not change the classification of the conflict.
Ethiopia, since the beginning of August 2021, alleged that “foreign fighters” were assisting the TPLF. It is not clear if Ethiopia meant a state or states were helping the TPLF or mercenaries or foreigners- who do not qualify as mercenaries were helping the TPLF.[16] Ethiopia did not identify the alleged foreigners assisting the TPLF, it just made blanket accusations, without substantiation.[17]Also in the same month, the Prime Minister of Ethiopia Abiy Ahmed, called for every Ethiopian of age to sign up to fight the TPLF. This was a notable change; a subtle acceptance that Ethiopia was at war with the TPLF, and that Ethiopia was not merely undertaking a law enforcement operation.[18]
If a State was now assisting the TPLF, this could have potentially meant the conflict between the TPLF, and Ethiopia had turned into an international armed conflict (IAC). The paper analyses the allegations of the use of foreign fighters and determines that if the specific allegations which were being made by the Ethiopian government were true, they did not have the effect of turning the clashes into an IAC, as they could not satisfy the legal requirements to turn the conflict into an IAC.
In August 2021, the TPLF and the Oromo Liberation Army (OLA) (another Ethiopian rebel group), announced they were joining forces (collaborating) to defeat the Ethiopian government, their common enemy.[19] The paper analyses the effects of the OLA joining the armed conflict and determines that it did not change the classification of the conflict between the TPLF and the Ethiopian government.
On 5 November 2021, seven other opposition groups joined the alliance between the TPLF and OLA. The grouping was christened the United Front of Ethiopian Federalist and Confederal Forces.[20] Their agenda was to coordinate military and political efforts. The nine parties that made up the group remained independent of each other.[21] The paper concludes that the expansion of the alliance between the TPLF and OLA, too, had no effect on the classification of the conflict between the TPLF and Ethiopia.
The article will not focus on the conclusion of the conflict as its agenda is to classify the law which governed the clashes between the TPLF and Ethiopia. The applicable law is crucial as it enables us to know the legal regime that governed this conflict, there are numerous allegations of the commission of crimes by parties in this conflict. In order to analyse well the alleged crimes that occurred during the clashes between the mentioned parties it is crucial we know exactly the legal regime that governed this conflict (There is a follow up article analysing the commission of crimes in this conflict). For example, there are allegations that war crimes occurred during this conflict, it is crucial to note war crimes can only occur during an armed conflict.
2. Non-international Armed Conflict
Common Article 3 of the Geneva Conventions recognise ”armed conflicts not of an international character.[22] However, it fails to define it.[23] According to the International Criminal Tribunal for the former Yugoslavia (ICTY), to distinguish between an armed conflict, in terms of the meaning under Common Article 3 of the Geneva Conventions, from less serious forms of violence like “internal disturbances and tensions, riots or acts of banditry, a certain threshold of confrontation will have to be satisfied.”[24]
The ICTY developed two criteria, which are universally accepted[25] to determine whether the threshold has been satisfied. The ICTY ruled (provided a definition) that a NIAC exists “whenever there is […] protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.”[26]
2.1 Intensity threshold
The criterion that there must be a protracted armed violence has been interpreted as referring more to the intensity of the armed violence rather than to the duration of the conflict itself.[27] The conflict between Ethiopia and the TPLF was protracted and the clashes between them satisfied the intensity threshold of Common Article 3 of the Geneva Conventions.[28]
International jurisprudence developed several ‘indicative factors’ which can be used to assess the intensity of violence between a state and an armed group. These include: [29]
…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 and mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the United Nations Security Council, and whether any resolutions on the matter have been passed. Trial Chambers have also taken into account in this respect the number of civilians forced to flee from the combat zones; the type of weapons used, in particular the use of heavy weapons, and other military equipment, such as tanks and other heavy vehicles; the blocking or besieging of towns and the heavy shelling of these towns; the extent of destruction and the number of casualties caused by shelling or fighting; the quantity of troops and units deployed; existence and change of front lines between the parties; the occupation of territory, and towns and villages; the deployment of government forces to the crisis area; the closure of roads; cease fire orders and agreements, and the attempt of representatives from international organisations to broker and enforce cease fire agreements.
The above indicators are just examples that can, but need not, all be present in a particular situation for one to conclude that the criterion of intensity has been satisfied, in a particular case.[30] The conflict resulted in a vast number of casualties; thousands of civilians and soldiers were killed.[31] In July 2021 there was an increase in government forces, at the beginning of the conflict Ethiopia was being assisted by Eritrean troops and militia from Amhara region. However, as of July 2021, Ethiopia was being assisted also by regional troops from Oromia, Sidama and troops from the Southern Nations Nationalities and Peoples’ Region.[32]
The TPLF had over 200 000 troops to call upon to fight, including its special forces.[33] In August 2021, the TPLF and the OLA announced they were joining forces (collaborating militarily) to defeat the Ethiopian government,[34] thereby increasing the number of troops available to the TPLF. In November 2021, the conflict significantly escalated with the increase of disposable troops on both sides of the conflict. On the 5th of November 2021, seven other opposition groups joined the alliance between the TPLF and OLA.[35] All the groups had a military wing. Their aim, among other things, was to coordinate militarily.[36] This meant there were even more troops now which could assist the TPLF in fighting Ethiopian troops and those supporting her.
The front lines were changing. For example, at the beginning of the conflict in November 2020, the TPLF lost control of Mekelle, but in June 2021, it managed to recapture the provincial capital. In July 2021, the TPLF pushed into Amhara and Afar (these are two provinces near Tigray).[37] However, in September 2021, the TPLF were pushed out of Afar region (they say they strategically retreated), losing the territory they had gained.[38] In early November 2021, the TPLF captured Kombolcha including its airport and they also captured the strategic town of Dessie (all these places are in Amhara region).[39] It is reported that they were aided by the OLA to capture Kombolcha and Dessie.[40]
The TPLF, with the capture of these cities which are in Amhara region, they were now 380 kilometres from Addis Abba-Ethiopian Capital. The TPLF wanted to march and capture the national capital.[41] The attacks between the parties were serious.[42] The forces on both sides of the conflict were using heavy weapons including helicopters, jets, drones and tanks.[43] On 2 November 2021, after the capture of Dessie and Kombolcha, Ethiopia declared a nationwide state of emergency as it feared that the TPLF will capture the capital.[44] They urged citizens to register their weapons and to protect areas as the rebels advance.[45] The conflict had escalated. At that time the government feared that the rebels will overrun the capital.
Heavy shelling occurred in November 2021.[46] For example, before the capture of Mekelle by Ethiopia, Ethiopian troops closed access into and out of this city, by road and air, and they besieged it.[47] Many civilians were forced to flee from the combat zones. Over 120,000 refugees crossed the border into Sudan. There were also mass displacements of people within Tigray and into neighbouring regions of Tigray.[48] Two million people were displaced.[49] There was so much destruction of civilian property and infrastructure. For example, schools, bridges, towns, hospitals and airports were destroyed [50] and there were reports of heavy casualties.[51]
The conflict attracted the attention of the United Nations Security Council (Security Council).[52] The Security Council held numerous meetings with the objective of resolving the conflict and protecting civilians.[53] There were many attempts by representatives from international organisations to broker and enforce a ceasefire agreement between the warring parties. The African Union and United Nations, including the Security Council, tried to broker a ceasefire agreement.[54] On 28 June 2021, Ethiopia unilaterally declared a temporary ceasefire; however, the ceasefire did not end the conflict.[55] Resolutions were passed, for example, by the African Union and the United Nations Human Rights Council, seeking to end the conflict.[56]
The ICTY emphasised that the duration of armed confrontations must not be overlooked when determining whether hostilities have satisfied the level of intensity of a NIAC.[57] ICTY stated that: [58]
…care is needed not to lose sight of the requirement for protracted armed violence in the case of [a]n internal armed conflict, when assessing the intensity of the conflict. The criteria are closely related. They are factual matters which ought to be determined in light of the particular evidence available and on a case-by-case basis.
The clashes between Ethiopia and the TPLF began on 4November 2020 and ended in April 2023.[59] Therefore, the clashes were ongoing for a while, hence the clashes were protracted.
2.2 Organised armed group
The criteria of organisation and intensity are intricately linked. The presence of one criterion maybe indicative of the presence of the other, for example, if there are intense armed confrontations between a state and an armed group.[60] The confrontations may be an indication that the armed group satisfies the degree of organisation required.[61]
To determine whether an armed group is organised, case law developed several indicative factors[62]
none of which are, in themselves, essential to establish whether the “organization” criterion is fulfilled. Such indicative factors include the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of a headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords.[63]
The indicators above are merely examples, which can, but need not, all be present in a particular case to conclude that the criterion of organisation is fulfilled in a particular situation.[64] The paper will prove via facts, below, that the TPLF possessed most, if not all, of the indicative factors of an organised armed group.
First, the TPLF were headquartered in Mekelle, the capital of the Tigray province.[65] They were defining military strategies and using military tactics.[66] For examples, it is reported that the TPLF military wing, after the capture of Mekelle in November 2020,
…consolidated forces and re-organized for a transition to guerrilla-style combat. Before the outbreak of hostilities, the TPLF-controlled regional militia functioned as a more traditional military force that was well-supplied and trained in the use of heavy weapons. [Ethiopian forces including] the Ethiopian Air Force successfully targeted the TPLF-led regional militia’s heavy equipment during the first weeks of the war. However, much of this equipment was abandoned by the TPLF before it was targeted. The TPLF leadership knew that such equipment would be useless for the kind of war that they would have to wage. Following what was a strategic retreat to the rugged interior, [TPLF] forces re-organized into small, highly-mobile, lightly armed, detachments of ten to eighty fighters. These detachments were then further divided into mission-specific units.[67]
Second, the TPLF had control over territory; for example, they took control over Mekelle, and they pushed into Afar and Amhara.[68] Third, the TPLF had access to weapons (rockets, missiles, and an air defence system), and it seized heavy weapons from the Ethiopian army.[69] Fourth, the TPLF possessed an identified command structure.[70] They mounted effective military operations,[71] such as seizing a federal military base, recapturing Mekelle, pushing into Amhara and Afar provinces and launching missiles including into Eritrea and at some point were threatening to take over the capital city of Ethiopia.[72]
Fifth, the TPLF had recruits. They could call upon more than 200 000 fighters, including special forces who were part of its regional government and a well-drilled militia.[73] Its forces were provided with significant training.[74] Sixth, the TPLF spoke with one voice, through its leadership.[75] Ethiopia was urged by the African Union, the United States of America and other actors to sign a ceasefire agreement with the TPLF.[76] The fact that Ethiopia was being urged to sign a ceasefire agreement is an indication that the TPLF had the capacity to negotiate and conclude agreements. It is crucial to note the conflict ended with the signing of a peace agreement.
As mentioned above, none of the indicative factors are “essential to establish whether the criterion of organisation has been satisfied.” Furthermore, the factors are merely examples that may, but do not necessarily need to be present in a particular situation for one to come to the determination that the criterion of organisation has been met, in a particular situation.[77] Ethiopia (like all states) in terms of international humanitarian law is presumed to have an organised armed force (to be organised).[78] The TPLF met the requirements under international humanitarian law (discussed above) of being an organised armed group, and the conflict between the TPLF and Ethiopia met the intensity threshold. Therefore, the conflict between Ethiopia and the TPLF was a NIAC.
2.3 Effect of involvement of Eritrea
In instances where foreign armed forces become involved militarily in a NIAC in support of a fellow state there is no need to determine whether, on their own, the conduct of the foreign state satisfies the criteria of intensity which is necessary for the existence of a new NIAC.[79] This is so because the criteria for determining the existence of a NIAC, in which the foreign armed forces are taking part, has already been satisfied.[80]
Therefore, the involvement of Eritrea in the conflict in Ethiopia did not change the classification of the conflict nor did it require one to make inquiries with respect to the intensity of the clashes between Eritrean armed forces and the TPLF.
2.4 Effect of Involvement of “Foreign hands” on the side of the TPLF
The Prime Minister of Ethiopia since August 2021 until the end of the conflict was saying that the TPLF were being aided by “foreign hands.” It is not clear if he meant a state or states were helping the TPLF or mercenaries, or whether foreigners who do not meet the requirements of a mercenary were helping the TPLF.[81] The paper will discuss the requirements which have to be met for a conflict to be an IAC. After this, it will verify the allegations made and determine based on the facts on the ground and the law whether the assistance by “foreign hands,” if any, given to the TPLF, was sufficient to make the conflict an IAC.
An IAC occurs when armed hostilities occur between states via their respective armed forces or other actors acting on behalf of a state.[82] In terms of Additional Protocol I, a mercenary is an individual that: [83]
a) is recruited to fight in a conflict; b) takes part directly in hostilities; c) is motivated to participate in the conflict to receive private gain and is promised this gain to participate in the conflict. The compensation which he/she receives must be substantially more than that which is promised or given to combatants who are of an identical rank and who carry similar functions in the armed forces of that party which he or she is assisting; d) is not a citizen of a party to the conflict or a resident of any territory that is under the control by a party to the conflict; e) is not a part of the armed forces of a party to the hostilities; and f) was not sent by a state that is not party to the hostilities on an official capacity as a member of its armed forces.
Taking into consideration the requirements that have to be fulfilled for a conflict to be considered an IAC, the assistance, if any, given by private individuals including mercenaries, to the TPLF had no effect with respect to the classification of the conflict nor could it change the conflict from a NIAC into IAC.[84] Only the involvement of a state on the side of the TPLF could potentially change the classification of the conflict between the TPLF and Ethiopia into an IAC.[85] Based on the facts discussed in this paper, there is no armed hostilities occurring between states via their respective armed forces.
The paper will now determine whether the TPLF was acting on behalf of a state (s). The International Criminal Court has ruled that: [86]
An [IAC] exists if a degree of control is exercised by the intervening third State over a non-State actor fighting in opposition to, or without the consent of, the government, that goes beyond the mere financing and equipping of the armed group and also involves participation in the planning and supervision of military operations. It does not require, however, that such control extend to the issuance of specific orders or instructions relating to single military actions.
Since the TPLF were looking to oust the Ethiopian government there is no way, Ethiopia would consent to a third state to assist the TPLF to achieve their objective. Therefore, we can take it for granted there is no state which it had given permission to aid the TPLF. There is no evidence that shows that the TPLF was being given financial support, or equipment by any state nor is there evidence that there was a state which was participating in planning and supervising the military operations of the TPLF. Even Ethiopia did not claim, any of the things mentioned in the previous sentence occurred.
2.5 Effect of involvement of OLA
The OLA are an ethnically based nationalist party that has the objective of promoting the right to national self-determination for the people of Oromo.[87] Oromo is a province in Ethiopia. The military collaboration of OLA troops with the TPLF did not change the classification of the conflict between the TPLF and Ethiopia. The OLA were not controlling the TPLF. Both groups were supporting each other to defeat their common enemy, the Ethiopian government.[88] The leader of the OLA said they reached an agreement with the TPLF on the principle of waging war against their “common enemy, especially via military cooperation.”[89]
The OLA were not providing financing, weapons, or participating in the planning and supervision of the military operations of the TPLF.[90] If they had done so, one would have had to look if the OLA was being controlled by a third state or not. If they were being controlled by a third state (s) and the OLA also controlled the TPLF, then the conflict would have turned into an IAC.[91] Therefore, the involvement of the OLA did not have the effect of changing the classification of the conflict between the TPLF and Ethiopia.
It is possible that the conflict between the OLA and Ethiopia could have turned into an IAC, if the OLA was being controlled by a third state, to fight Ethiopia.[92] As discussed earlier, it is possible for an NIAC and IAC to coexist at the same time on a single territory.[93] However, the classification of the conflict between the OLA and Ethiopia is not the subject of this paper. Thus, the paper will not undertake an analysis of the classification of the conflict between the OLA and Ethiopia.
2.6 Effect of creation of a nine group alliance: United Front of Ethiopian Federalist and Confederal Forces
In November 2021, seven other oppositions groups, which all have a military wing, joined the alliance (expanded alliance) between the TPLF and OLA.[94] Just like the initial agreement between the TPLF and OLA, there are no suggestions that the grouping, or any one member or some members in the group, was financing, giving weapons, or participating in the planning and supervision of the military operations of the TPLF. The agenda of the grouping was to coordinate militarily and politically.[95] The members of the group continued to be independent of each other until the end of the conflict between the TPLF and Ethiopia.[96] Therefore, the new alliance did not have the effect of controlling the TPLF. Hence there is no need to determine if a third state was controlling the group thereby turning the conflict between the TPLF and Ethiopia into an IAC.
The paper will also not classify the individual conflicts between Ethiopia and the other seven members who are part of the group, as it is not part of the objective of the paper.
3. Conclusion
Given that the TPLF was an organised armed group, and the clashes between the TPLF and Ethiopia met the intensity threshold of armed violence, it is safe to conclude that there was a NIAC between Ethiopia and its allies against the TPLF. The involvement of Eritrea, Amhara Regional Police Special Force, Fano Militia, regional forces from Oromiya, Sidama, and the Southern Nations Nationalities and Peoples’ Region on the side of Ethiopia did not influence the classification of the conflict between Ethiopia and the TPLF.
Furthermore, the collaboration of the nine-armed groups, including the TPLF under the umbrella of the United Front of Ethiopian Federalist and Confederal Forces did not influence the classification of the conflict between the TPLF and Ethiopia as the group did not control the TPLF. The objective of the grouping was to collaborate militarily and politically. All the members of the group in terms of the agreement remained independent of each other and the group did not control any member of the grouping.
It is crucial that the law that governed the conflict is known as there are allegations of the commission of numerous crimes that occurred during this conflict. Knowing the legal regime that governed the conflict will enable to us to know if any crime occurred. It is crucial to note that some things are legal under the law of international humanitarian law which would be illegal during a time of peace. Therefore, having the knowledge of the applicable legal regime will enable one to know if any crime occurred, if it did occur, what crime occurred. This significantly aids to bring any alleged perpetrator to justice.
Gwasira Jasper
Gwasira Jasper has a bachelor’s degree in Law from Nelson Mandela University and a master’s degree in international humanitarian law and human rights from the Geneva Academy. He graduated from the prestigious United Nations Interregional Crime and Justice Research Institute with a master’s degree in transnational crimes and transitional justice.He has worked as a Case Manager for the International Criminal Tribunal for the former Yugoslavia and as a Legal Researcher for the African Court of Human and People’s Rights. He has also served in the International Residual Mechanism for Criminal Tribunals as a Case Manager and Assistant Legal Officer. The International Criminal Tribunal for Rwanda and the International Criminal Court Appeals Chamber have both hosted him. In addition, he has served as a legal fellow and consultant for the United Nations Permanent Missions of Sierra Leone and South Africa in Geneva, Switzerland.”
[1] Art 47, Constitution of Federal Democratic Republic of Ethiopia of 1995, thereafter ‘the Constitution.’
[2] As above.
[3] African Commission on Human and Peoples’ Rights, ‘Resolution on the fact-finding mission to the Tigray Region of the Federal Democratic Republic of Ethiopia’ ACHPR/Res. 482 (EXT.OS/XXXII), available at https://www.achpr.org/sessions/resolutions?id=513 (accessed 10 May 2022) ; United Nations Security Council (2021) ‘Security Council Press Statement on Ethiopia’ 22 April https://www.un.org/press/en/2021/sc14501.doc.htm (accessed 10 May 2022).
[4] Blanchard The Unfolding Conflict in Ethiopia: presented before Committee on Foreign Affairs Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations, U.S. House of Representatives (2020)5, 7.
[5] L Blanchard ‘Ethiopia’s transition and the Tigray conflict’ Congressional Research Service, 9 September 2021, 6 https://crsreports.congress.gov/product/pdf/R/R46905 (accessed 05 October 2021).
[6] AE Deleersnyder ‘Ethiopia’s Tigray conflict: Exposing the limits of EU and AU early warning’ (2021) Multinational Development Policy Dialogue, Konrad Adenauer Stiftung, 4; Blanchard (n 2) 5.
[7] As above, 4.
[8] Reuters Staff (2020) ‘Inside a military base in Ethiopia’s Tigray: Soldiers decry betrayal by former comrades’ 17 December, https://www.reuters.com/article/us-ethiopia-conflict-attack-idUSKBN28R1IE (accessed 5 October 2021).
[9] African Commission on Human and Peoples’ Rights (n 3); African Commission on Human and Peoples’ Rights ‘Resolution on the validation of the Co-opted Members of the Commission of Inquiry into the situation in the Tigray Region of the Federal Democratic Republic of Ethiopia’ACHPR/Res. 488 (EXT.OS/XXXIV) https://www.achpr.org/sessions/resolutions?id=519 (accessed 28 September 2021);International Crisis Group (2021) ‘Ethiopia’s Civil War: Cutting a deal to stop the bloodshed’ 26 October, https://www.crisisgroup.org/africa/horn-africa/ethiopia/b175-ethiopias-civil-war-cutting-deal-stop-bloodshed (accessed 10 May 2022).
[10] Deleersnyder (n 6) 7; Sayara International ‘“You are going to die and we’re taking your property”: Interviews with Tigray refugees in Eastern Sudan’ 5-6, https://sayarainternational.com/wp-content/uploads/2020/12/Humanitarian-Crisis-in-Ethiopia-E.-Sudan-Sayara-report-Dec-2020.pdf (accessed 05 October 2021)Amnesty International ‘“I don’t know if they realised I was a person”: Rape and other sexual violence in the conflict in Tigray’ 5, https://www.amnesty.org/en/wp-content/uploads/2021/08/AFR2545692021ENGLISH.pdf (accessed 05 October 2021).
[11]Wadheer News (2021) ‘Three more regions reinforce Ethiopia army, Amhara against Tigray forces’ 16 July, https://wardheernews.com/three-more-regions-reinforce-ethiopia-army-amhara-against-tigray-forces/#:~:text=Three%20more%20regions%20reinforce%20Ethiopia%20army%2C%20Amhara%20against,that%20has%20so%20far%20largely%20affected%20the%20north (accessed 05 October 2021); n 5, 8.
[12] Deleersnyder (n 6) 7.
[13] Amnesty International (n10) 10.
[14] Blanchard (n4) 5.
[15] n 9.
[16] BBC News (2021) ‘Ethiopia PM Abiy Ahmed calls on civilians to join Tigray war’ 10 August, https://www.bbc.com/news/world-africa-58163641 (accessed 6 October 2021).
[17] DW News (2021) ‘Ethiopia PM Abiy Ahmed talks tough as Tigray forces claim gains’ 2 November, https://www.dw.com/en/ethiopia-pm-abiy-ahmed-talks-tough-as-tigray-forces-claim-gains/a-59689902 (accessed 6 October 2021).
[18] BBC News (n 16).
[19] M Bearak (2021) ‘Ethiopia at war: Thousands mobilize after Tigrayans make strategic gains’ 2 November, Washington Post, https://www.washingtonpost.com/world/2021/11/02/ethiopia-war-addis-amhara-oromo/ (accessed 06 October 2021); Danish Immigration Service COI Report: Ethiopia opposition groups recent developments (2020) 111; Africa News (2021) ‘Ethiopia: Oromo Liberation Army (OLA), the other group fighting federal forces’ 8 November, https://www.africanews.com/2021/11/08/ethiopia-oromo-liberation-army-ola-the-other-group-fighting-federal-forces/ (accessed 6 October 2021).
[20] Remo News ‘The new alliance wants to oust the Ethiopian prime minister by talks or by force’ https://remonews.com/kenya/the-new-alliance-wants-to-oust-the-ethiopian-prime-minister-by-talks-or-by-force/ (accessed 6 October 2021).
[21] As above.
[22] Common Article 3, Geneva Conventions.
[23] As above; Geneva Academy of International Humanitarian Law and Human Rights ‘Non-international armed conflict’ https://www.rulac.org/classification/non-international-armed-conflicts (accessed 7 October 2021).
[24] The Prosecutor v Dusko Tadić Trial Chamber Judgment IT-94-1-T (7 May 1997) para 562; Jean Pictet Commentary, Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Convention II (1960) 33; Jean Pictet Commentary, Geneva Convention Relative to the Treatment of Prisoners of War, Convention III (1960) 37.
[25] The Prosecutor v Sesay, Kallon and Gbao Judgment SSL-04-15-T (2 March 2009) para 95; The Prosecutor v Thomas Lubanga Dyilo Pre-Trial Chamber Decision of Confirmation of Charges ICC-01/04-01/06 (29 January 2007) para 233; International Committee of the Red Cross International Humanitarian Law and the Challenges of Contemporary Armed Conflict, 31st International Conference of the Red Cross and Red Crescent (2011) 8; ICRC How is the Term ‘Armed Conflict’ Defined in International Humanitarian Law? (2008) 5; International Committee of the Red Cross Treaties, States parties, and Commentaries – Geneva Convention (I) on Wounded and Sick in Armed F orces in the Field,1949 – 3 – Article 3 : Conflicts not of an international character – Commentary (2016) para 423 & 427.
[26] The Prosecutor v Dusko Tadić Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction IT-94-1-AR72 (2 October 1995) para 70; The Prosecutor v Dusko Tadić Trial Chamber Judgment ICTY IT-94-1-T (7 May 1997) para 561 and 562; n 22; n 23; The Prosecutor v Sesay Kallon and Gbao Judgment SSL-04-15-T (2 March 2009) para 95; The Prosecutor v Thomas Lubanga Dyilo Pre-Trial Chamber, Decision of Confirmation of Charges ICC-01/04-01/06 (29 January 2007) para 233; International Committee of the Red Cross (2016) para 423 and 427.
[27] The Prosecutor v. Ramush Haradinaj Idriz Balaj and Lahi Brahimaj (Haradinaj et al.) Trial Chamber
Judgement Case No. IT-04-84-T (3 April 2008) para 49; The Prosecutor v Dusko Tadić Appeals Chamber Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction IT-94-1-AR72 (2 October 1995) para 70.
[28] Ethiopian Human Rights Commission (EHRC)/Office of the United Nations High Commissioner for Human Rights (OHCHR) ‘Report on joint investigation into alleged violations of International Human Rights, Humanitarian and Refugee Law committed by all parties to the conflict in the Tigray Region of the Federal Democratic Republic of Ethiopia’ (2021); n 15.
[29] Boškoski and Tarčulovski Trial Judgment (2008) para 177; Haradinaj Trial Judgment (2008) paras 49 and 90–99; Limaj Trial Judgment (2005) paras 90 and 135–170. Some of these elements have also been applied by the ICC; see Lubanga Trial Judgment (2012) para 538; Katanga Trial Judgment (2014) para 1187; Bemba Trial Judgment (2016) paras 137–141.
[30] Cameron et al n 57, para 433.
[31] EHRC & OCHR (n 28); Blanchard (n 4) 6; United Nations High Commissioner for Refugees (UNHCR) ‘Ethiopia: Tigray Region’ Protection Brief, July 2021, 1, https://reporting.unhcr.org/sites/default/files/Ethiopia%20Protection%20Brief%20July%202021.pdf (accessed 11 October 2021).
[32] Deleersnyder (n 6) 7; Sayara (n 10) 5-6); Amnesty International (n 10) 5.
[33] Blanchard (n 5); BBC News (2020) ‘Ethiopia’s Tigray crisis: Fears of a march into guerrilla warfare’ 27 November, https://www.bbc.com/news/world-africa-55065229 (accessed 11 October 2021).
[34] M Bearak (2021) ‘Ethiopians mobilise as advance of rebel groups toward capital threatens wider civil war’ Washington Post, 2 November, https://www.washingtonpost.com/world/2021/11/02/ethiopia-war-addis-amhara-oromo/ (accessed 11 October 2021).
[35] n 20.
[36] As above.
[37] House of Commons ‘Humanitarian situation in Tigray’ (2021) 2, https://commonslibrary.parliament.uk/research-briefings/cdp-2021-0131/ (accessed 11 May 2022); n 20; EHRC &OHCHR (n 28) 15, 22.
[38] Africa News (2021) ‘Ethiopia says TPLF rebels ‘routed’ in Afar after months of clashes’ 10 September, https://www.africanews.com/2021/09/10/ethiopia-says-tplf-rebels-routed-in-afar-after-months-of-clashes/ (accessed 11 October 2021)
[39] Al Jazeera (2021) ‘Tigrayan forces claim to capture new town of Kombolcha’ 31 October, https://www.aljazeera.com/news/2021/10/31/ethiopian-forces-fight-to-retake-strategic-city-as-rebels-advance (accessed 11 October 2021).
[40] Bearak (n19).
[41] Al Jazeera News (2021) ‘Ethiopia’s strategic town of Dessie ‘captured’ by rebel forces’ 30 October, https://www.aljazeera.com/news/2021/10/30/ethiopias-tigray-rebels-say-captured-strategic-town-of-dessie (accessed 11 October 2021).
[42] n 20.
[43] Blanchard (n 4) 5-6.
[44] BBC News (2021) ‘Ethiopia’s Tigray conflict: Lalibela retaken – government’ 1 December, https://www.bbc.com/news/world-africa-59493729 (accessed 11 October 2021).
[45] As above.
[46] EHRC & OHCHR (n 28) 2, 26, 49.
[47] As above; Human Rights Watch ‘Q&A: Conflict in Ethiopia and International Law’https://www.hrw.org/news/2020/11/25/qa-conflict-ethiopia-and-international-law (accessed 11 October 2021)
[48] United Nations Office for the Coordination of Humanitarian Affairs (OCHA) ‘Ethiopia: Tigray Region Humanitarian Update’ Situation Report No. 5, 24 November 2020; UNHCR ‘UNHCR Ethiopian Operation: Tigray Situation Update’ 6 September 2021, https://reliefweb.int/report/ethiopia/unhcr-ethiopia-operation-tigray-situation-update-06-september-2021 (accessed 10 May 2022).
[49] UNHCR (n 31).
[50] Blanchard (n 4) 6; EHRC & OHCHR (n 28) 6, 18, 22, 26, 74, 77.
[51] African Commission on Human and Peoples’ Rights (n 3); Blanchard (n 5).
[52] United Nations Security Council (UNSC) ‘Security Council Press Statement on Ethiopia’ 22 April 2021, https://www.un.org/press/en/2021/sc14501.doc.htm (accessed 11 October 2021); House of Commons (n 37) 5.
[53] UNSC (n 52).
[54] African Commission on Human and Peoples’ Rights (n 3); UNSC (n 52); Blanchard (n 4) 8; House of Commons (n37) 5.
[55] Blanchard (n 5) 7.
[56] As above; UNHCR (n 48).
[57] L Cameron, B Demeyere, JM Henckaerts, EL Haye, I Muller, C Droege, R Geiss and L Gisel ‘Article 3: Conflicts not of an international character’ in International Committee of the Red Cross (ed), Commentary on the First Geneva Convention: Convention (I) for the amelioration of the condition of the wounded and sick in armed forces in the field, (2016) para 442.
[58] Boškoski and Tarčulovski Trial Judgment (2008) para 175; Cameron et al (n 57) para 442.
[59] E Mackintosh (2021) ‘Ethiopia: Rebels threaten Ethiopian capital UN slams atrocities committed inTigray conflict’ CNN, 3 November, https://edition.cnn.com/2021/11/03/africa/ethiopia-tigray-un-ehrc-investigation-intl/index.html (accessed 11 October 2021); EHRC & OHCHR (n 28); African Commission on Human and Peoples’ Rights (n 9); N Bariyo ‘Ethiopia launches offensive against Tigray forces’ 12 October, Wall Street Journal, https://www.wsj.com/articles/ethiopia-launches-offensive-against-tigray-forces-11634059689 (accessed 11 October 2021).
[60] Geneva Academy of International Humanitarian Law and Human Rights (n 23); Cameron et al (n 57) para 378 and 434.
[61] As above.
[62] Geneva Academy of International Humanitarian Law and Human Rights (n 23).
[63] The Prosecutor v Ramush Haradinaj and others Trial Chamber Judgment IT-04-84-T (3 April 2008) para 60; Geneva Academy of International Humanitarian Law and Human Rights (n 62); Cameron et al (n 57) para 430; n 29.
[64] Cameron et al (n 57) para 433.
[65] Art 6, Constitution of Ethiopia; Blanchard (n 4) 5, 7; Blanchard (n 5) 14; Jamestown Foundation Terrorism Monitor: In-depth analysis of the war on terror 7 add the author(s) here.
[66] Jamestown Foundation Terrorism Monitor: In-depth analysis of the war on terror (04 May 2021) 7.
[67] As above.
[68] Blanchard (n 5) 8; House of Commons (n 37) 2.
[69] Deleersnyder (n 6) 5; Blanchard (n 5) 5; EHRC & OHCHR (n28) 35.
[70] Blanchard (n 5) 5.
[71] UNHCR (n 48) 4; Blanchard (n 5) 6; House of Commons (n37) 2; EHRC & OHCHR (n28) 15, 22; BBC News (n 44).
[72] Blanchard (n 5) 8; House of Commons (n 37) 2; BBC News (n 44).
[73] House of Commons (n 37) 6; BBC News ‘Ethiopia’s Tigray crisis: Fears of a march into guerrilla warfare’ https://www.bbc.com/news/world-africa-55065229 (accessed 07 December 2021).
[74] As above.
[75] Blanchard (n5) 5; House of Commons (n 37) 4; n 5, 7; EHRC & OHCHR (n 28) 3, 11.
[76] Blanchard (n 4) 8; Blanchard (n5) 24.
[77] Cameron et al (n 57) para 433.
[78] Cameron et al (n 57) para 429; S Vité ‘Typology of armed conflicts in international humanitarian law: Legal concepts and actual situations’ (2009) No. 876 International Review of the Red Cross 77; The Prosecutor v Ramush Haradinaj and others ICTY Trial Chamber Judgment IT-04-84-T (3 April 2008) para 60.
[79] T Ferraro ‘The applicability and application of international humanitarian law to multinational forces’ (2013) No 891/892 International Review of the Red Cross 583–587; Cameron et al (n 57) para 446.
[80] Ferraro (n 79) 105–113; Cameron et al (n 57) para 446.
[81] BBC News (n 16).
[82] Katanga case, Trial Chamber: Judgment (7 March 2014) at para. 1177; Bemba case, Pre-Trial Chamber: Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo (15 June 2009) para. 22
[83]Additional Protocol I Art 47(2).
[84] Katanga case, Trial Chamber: Judgment (7 March 2014) at para. 1177; Bemba case, Pre-Trial Chamber: Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo (15 June 2009) at para. 22.
[85] BBC News (n 16).
[86] Ntaganda case Trial Chamber Judgment (8 July 2019) para 727; Ongwen case Trial Chamber Trial Judgment (4 February 2021) para 2687; Katanga case Trial Chamber Judgment (7 March 2014) para 1178; Lubanga case Trial Chamber Judgment (14 March 2012) para 541; Katanga case Trial Chamber Judgment(7 March 2014) para 1178; Lubanga case Pre-Trial Chamber Decision on the Confirmation of Charges(29 January 2007) para 211; Bemba case Trial Chamber Judgment (21 March 2016) para 130; Ongwen case Trial Chamber Judgment (4 February 2021) para 2687.
[87] Danish Immigration Service (n 19) 11-12; Africa Report Ethiopia ‘Victory for the Oromo will come from winning hearts and minds, not terrorising people’ https://www.theafricareport.com/99330/ethiopia-victory-for-the-oromo-will-come-from-winning-hearts-and-minds-not-terrorising-people/ (accessed 7 December 2021).
[88] TA Tekle (2021) ‘Ethiopia downplays TPLF, OLF military alliance’ East African, 13 August https://www.theeastafrican.co.ke/tea/rest-of-africa/ethiopia-military-alliance-3509856 (accessed 7 December 2021); n 86.
[89] VOA News (2021) ‘Ethiopia armed group says it has alliance with Tigray forces’ 11 August https://www.voanews.com/a/africa_ethiopia-armed-group-says-it-has-alliance-tigray-forces/6209428.html (accessed 7 December 2021).
[90] Tekle (n 88).
[91] Katanga case Trial Chamber Judgment (7 March 2014) para 1177; Bemba case Pre-Trial Chamber: Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo (15 June 2009) para 22.
[92] n 86.
[93] Katanga case Trial Chamber Judgment (7 March 2014) para 1177; Lubanga case Pre-Trial Chamber: Decision on the Confirmation of Charges (29 January 2007) para 209; Ntaganda case Trial Chamber Judgment (8 July 2019) para 726; Ongwen case Trial Chamber: Trial Judgment (4 February 2021) para 2686.
[94] Remo News (n 20).
[95] As above.
[96] As above.
