By:
Gwasira Jasper (see end of article for author’s biography)
Abstract
From the 4th of November 2020 until April 2023, Ethiopian and Eritrean troops, the Amhara Regional Police Special Force (Amhara Police) and Fano militia, were involved in a non-international armed conflict (NIAC) with the Tigrayan Peoples’ Liberation Front (TPLF). The parties to this conflict have been accused of committing various forms of war crimes and crimes against humanity. Ethiopia at some point blocked access into Tigray. During the conflict it was not easy to assess the conflict dynamics. The extent to which the conflict has resulted in the commission of mass atrocities is unclear. The individual perpetrators of all the relevant crimes have not been identified. Without knowing a perpetrator’s knowledge and mens rea, one is not able to verify whether a particular crime is a war crime or CAH (or any crime for that matter), as a perpetrator’s mens rea and knowledge are some of the essential elements that need to be evaluated to determine whether the legal requirements of a particular crime have been met. Thus, independent investigations must be undertaken to identify, the alleged individual perpetrators, their knowledge and mens rea and whether their conduct, with respect to each, and every relevant allegation, satisfies the legal elements of the relevant crime (war crimes and crimes against humanity in the case). This is essential in order to bring the relevant perpetrators to justice.
This article has been broken down into two parts, Section A and Section B.
Section A covers: background, introduction, civilians and and their objects under international humanitarian law with a special focus on non-international armed conflicts and crimes against humanity in that order and Section B to be released in the next publication will cover war crimes, allegations of sexual crimes and the conclusion.
BACKGROUND
Ethiopia is in the Horn of Africa region, sometimes classified as part of East Africa. It shares borders with six countries. These are Eritrea to the north, Djibouti to the northeast, Somalia to the east and northeast, Kenya to the south, South Sudan to the west and Sudan to the northwest. With approximately 109 million people, it is one of the most populous countries in Africa, second only to Nigeria.
Ethiopia has never been a colony, although Italy briefly occupied it from 1936 to 1941. In 1952, Haile Selassie facilitated a federation with Eritrea. He unilaterally dissolved this in 1962 and annexed Eritrea, resulting in the Eritrean War of Independence. This war ended in 1991, when Eritrea earned de facto independence (de jure independence occurred in 1993, after a referendum).
Ethiopia is divided into ten ethnically based and politically autonomous regional states, one of which is Tigray, which shares a border with Eritrea. People indigenous to Tigray are known as Tigrayans- Tigrayans are a semitic-speaking ethnic group. The constitution assigns extensive power to regional states, which can establish their own government and democracy if it is in line with the federal government’s constitution. Article 39 of the Ethiopian Constitution further gives every regional state the right to secede from Ethiopia under stated conditions.
In 1974, a military junta known as the Derg overthrew Emperor Haile Selassie. In the same year, a civil war started. The war ended on 4 June 1991 when the Ethiopian People’s Revolutionary Democratic Front (EPRDF), a coalition of left-wing ethnic rebel groups, entered the capital Addis Ababa and overthrew the junta. From that day EPRDF started governing Ethiopia.
Meles Zenawi of EPRDF ruled from 1991 to the time of his death in 2012. He was succeeded by Hailemariam Desalegn, the leader of who was subsequently replaced by Abiy Ahmed in 2018. In 2019, Prime Minister Abiy Ahmed merged the ethnic and region-based constituent parties of the EPRDF coalition and several opposition parties into his new Prosperity Party. His reason for the merger was that he wanted to distance the country’s politics from ethnic federalism and ethnic nationalism.
The TPLF, previously the dominant party in the ruling EPRDF consisting of four major regional parties from Oromia, Southern peoples, Amhara and Tigray refused to join the new Prosperity Party. Dissolving the EPRDF’s constitutive parties would vary significantly the ethnic compact that cobbled the diverse EPRDF together, in a country made up around 80 ethnic groups. PM Abiy was accused of attempts to destroy the ethnic federal system established in 1991, which has support in regions beyond Tigray, including in huge swathes of Oromia, PM Abiy’s own ethnic backyard. The TPLF alleged that Abiy Ahmed became an illegitimate ruler because the general elections scheduled for 29 August 2020 (which the House of Peoples’ Representatives had already postponed twice before the COVID-19 pandemic from their regular May 2020 election date) were changed yet again by him to an undetermined date in 2021. The TPLF, led by its chairman, Debretsion Gebremichael, went ahead with regional elections (they were the regional government) in Tigray in September 2020 in defiance of the federal government, which then declared the Tigray election illegal.
The TPLF as the regional government, had its on regional forces (regional governments in Ethiopia are allowed to have their own forces). Ethiopia controls federal troops. The Tigray regional forces launched (alleged to have done this on the 4th of November 2020) an attack on a military base of the Federal forces. This attack triggered the conflict between the TPLF and Ethiopia.
The clashes between Ethiopia and TPLF ended in April 2023. At the beginning of the conflict, Amhara Regional Police Special Force, (Amhara is a province in Ethiopia, which neighbours Tigray province), Fano Militia (this is an Amharan militia group) and Eritrean military forces were assisting Ethiopia against the TPLF. From July 2021, these forces, were now being assisted by regional forces from Oromiya (also known as Oromia), Sidama, and the Southern Nations Nationalities and Peoples’ Region.
1 INTRODUCTION
The warring parties have been accused of attacking civilians and their objects, pillaging (looting), using civilians as human shields, launching indiscriminate attacks, blocking/restricting humanitarian assistance and attacking humanitarian personnel. Their conduct is reported to have amounted to the commission of various forms of war crimes and crimes against humanity and genocide. However, the paper does not analyse the allegations of the commission of genocide as there is not enough space to address this crime in detail- in this article.
Ethiopian forces and its allied forces (Eritrean troops, the Amhara Police and Fano militia) have been accused of committing various sexual crimes against Tigrayan women amounting to war crimes or crimes against humanity.[1] The same forces have also been accused of committing the crime against humanity (CAH) of persecution based on gender.[2] The TPLF has been accused of raping Eritrean refugees, their conduct is alleged to amount to war crimes.[3]
The allegations against the warring parties raise several questions, namely: who is a civilian; what is a civilian object ; what is a war crime and CAH; what is an indiscriminate attack ; what it is pillage; what is a human shield ; what are the consequences of restricting humanitarian assistance and attacking personnel which provide said assistance; how is rape, rape as a form of torture, and sexual slavery defined both as war crimes and crimes against humanity; what is the CAH of persecution based on gender; did the alleged crimes occur, if so, which, and who were the individual perpetrators. Knowledge of the individual(s) who perpetrated a particular crime is crucial, as international criminal law (ICL), prosecutes individuals for criminal violations based on individual criminal responsibility.[4]
The first section of the paper will define who is a civilian, what is a civilian object, the protections which civilians and their objects have under international humanitarian law (IHL) (specifically NIAC) and the circumstances under which civilians and their objects lose protection. The second section defines CAH and applies each specific allegation of the commission of a CAH (except for allegations of sexual crimes) to the definition of CAH. With respect to each allegation, the paper concludes that there is a need to have more information to be able to determine whether a CAH has been committed.
The third section presents a definition of war crimes. The paper analyses each specific allegation of the perpetration of war crimes (except, also, for allegations of sexual crimes) to determine whether a war crime has been perpetrated. The paper concludes, with respect to each allegation, that there is insufficient information available to determine whether war crimes have been committed. It submits that there is a need for investigations to determine whether war crimes have been perpetrated and if so, by who and which war crimes.
In the fourth section, the paper discusses the allegations of the various sexual crimes. It defines all the relevant crimes (both as war crimes and CAH) and elucidates the requirements necessary to show whether the relevant crimes have been committed. It analyses all the allegations to determine whether any of the alleged crimes have been proven. The conclusion is, there is insufficient information to conclude that any of the crimes have been committed, due to the lack of adequate information, which can only be available when investigations occur. The paper, also discusses, in the same section, the CAH of persecution based on gender, using the International Criminal Court (ICC) definition of the crime. The issue is discussed here as the alleged discrimination (persecution) based on gender was perpetrated through the commission of alleged sexual crimes.
In the last section, the paper submits, with respect to each allegation, of the perpetration of a crime, the actual alleged individual perpetrators are not identified, and it is impossible to conclude that a war crime or CAH has been committed without having determined the mens rea and the knowledge of a perpetrator among other relevant legal requirements of a relevant crime. The paper concludes by calling for investigations to be conducted to determine whether war crimes and or crimes against humanity have been committed as the information that is available is insufficient to determine whether a war crime or CAH has been committed. An investigation is crucial in order to bring to justice those who committed the relevant alleged crimes.
2 CIVILIANS AND THEIR OBJECTS UNDER IHL: WITH A FOCUS ON NIAC
2.1 Civilians
In a NIAC, anyone who is not a member of the armed forces of a state or an organised armed group of a party partaking in an armed conflict is a civilian.[5] They cannot be attacked.[6] Civilians lose protection from direct attack for the period of each specific act which amounts to direct participation in hostilities.[7] Direct participation refers to acts which are carried out by a person as part of the conduct of hostilities between warring parties to an armed conflict.[8]
For the relevant act to be considered direct participation:
[T]he acts must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), […] [T]here must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), […] [t]he act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus) […].[9]
Any measure preparatory to the execution of a particular act of direct participation including deployment and return from an area of its execution, constitutes an important part of direct participation. Members or persons associated with organised armed groups who are directly involved in hostilities in a NIAC are considered the armed forces of a non-state party to a conflict.[10]Thus they are legitimate targets if they continue to be directly involved in hostilities.[11]However, any such person who: becomes subject to the power of an adverse party; or is rendered defenceless because of unconsciousness, shipwreck, wounds or sickness; or who clearly expresses an intention to surrender—provided he or she abstains from any hostile act and does not attempt to escape—is a person hors de combat and should not be attacked.[12] Such people are in the hands of the adversary.
2.2 Civilian objects
Under IHL warring parties are obliged to always distinguish between civilian objects,[13] and military objects.[14] Attacks are only permissible against military objectives.[15] Military objectives are objects which by their nature, location, purpose, or whose use contributes to a military action which is effective and whose destruction in part or in total, capture or neutralisation, in the situation ruling at that time, provides a military advantage.[16] Civilian objects are objects with no military objectives associated with them.[17]
Dual use facilities (used by the military and civilians) such as civilian means of transport,[18] the classification of such objects is dependent on the application of the definition of a military objective.[19] The loss of protection of objects that are civilian needs to be read together with the legal requirement that only military objectives can be the object of an attack. When a civilian object is utilised in such a manner that it loses its character as a civilian object and qualifies as a military objective, it can be attacked.[20]
An attack against a military objective must not be indiscriminate.[21] The weapon, which is used, must be able to be directed at a specific military objective and the means utilised must be proportional to the military necessity.[22] Where a military objective is targeted, and the proportionality principle complied with, civilians and or their objects may nevertheless be affected by the attack (collateral damage).[23] In such cases, precautionary measures must be taken.[24] The obligation to take precautionary measures states that when conducting military operations, constant care should be taken to spare civilians and their objects.[25] All precautions which are feasible, must be undertaken to avoid, and minimise, the incidental injury and loss of civilian life and damage to their objects.[26] The duty to take all precautions which are ‘feasible’ is limited to the precautions that are possible, taking into consideration all the circumstances ruling at the relevant time, including humanitarian and military considerations.[27]
The principle of proportionality does not allow an attack, even when it is directed at a specific military objective, if such attack can be anticipated to result in the incidental loss of lives of civilians, injure them, damage their objects, or a mixture thereof, that will be excessive in ‘relation to the concrete and direct military advantage’ that is expected.[28] This principle is the link that is inescapable between the principle of military necessity and the principle of humanity, where these two principles pull in opposite ends. The principle of proportionality is not easy to apply, and each attempt taken to weigh the military advantage which is anticipated against civilian losses or damage to their objects which is expected is dependent on subjective considerations, especially when each of the probabilities- acquiring the military advantage and ‘affecting civilians, can be gauged with less than 100% accuracy.’[29]
The civilian population and certain specially protected objects cannot be utilised to shield a military objective from an attack.[30] The decisive factor to distinguish between the utilisation of human shields from non-compliance with the duty to take passive precautions is whether the intermingling between civilians and combatants, and/or military objectives, is due to the defender’s specific intention to gain protection for its armed forces and objectives, or simply a lack of care for the civilian population.[31] The term human shield describes a method of conducting war (which is prohibited) where the presence of civilians or their movement is utilised to shield a military objective from an attack, or to shield, favour or hinder military operations of an opponent.[32]
If the defender infringes the prohibition not to use human shields, the ‘shielded’ military objectives or combatants do not stop to be legitimate military objectives because civilians or protected objects are there.[33] When the expected incidental loss of life and or injury among involuntary human shields is excessive in relation to the concrete and direct military advantage which is anticipated from an attack on a military objective and or combatants, an attack which is directed against the latter can become illegal. [34]
2.3 Pillage
It is prohibited to pillage the property of civilians; this is a war crime in both a NIAC and an international armed conflict.[35] Pillaging is the appropriation of civilian property for private or personal use.[36] The prohibition against pillaging is a specific application of the general principle of the law prohibiting stealing.[37]
3 Crimes Against Humanity
The legal definition of CAH, as they are understood today, can be found in the ICC Statute, and most states are bound by this legal definition.[38] CAH can be committed at any time (whether time of war or peace) and target the civilian population, regardless of nationality or bonds of allegiance.[39] A CAH is:
any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender […], or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; […] Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.[40]
An ‘attack’ does not necessarily have to be a military attack, it refers to an operation or campaign which is undertaken against a civilian population or part of it.[41] The civilian population must be the primary target of the relevant attack, they should not be incidental victims. Individual victims of the attack need not be civilians.[42] The civilian population which is the object of the attack can be civilians that are targeted due to their political affiliation.[43]
According to the ICC, there must be a policy to attack the civilian population or part of it.[44] There is debate whether policy is a requirement under customary international law. The ad hoc tribunals and numerous commentators state policy is not a legal requirement.[45] This view is shared by many commentators.[46]
Ethiopia and Eritrea did not ratify the ICC Statute (the crimes are alleged to have occurred in Ethiopia, against Ethiopian citizens and committed by Ethiopians and Eritreans).[47] As policy is not a legal requirement under customary international law. The parties to the conflict are not bound by this requirement.[48] The ad hoc tribunals state that policy is a good indicator of whether a CAH has been perpetrated.[49] Therefore, policy is only discussed here as something that can indicate whether there is an attack against the civilian population.[50]
The systematic nature of the crime is defined as either a pattern which is regular and results in a continuous commission of acts, or as patterns of crimes such that the crimes constitute a non-accidental repetition of similar criminal conduct on a regular basis.[51] Thus, random or isolated acts of violence cannot amount to crimes against humanity.[52]
To determine whether an act is part of a widespread attack, the characteristics, aims, and nature or the results of the act are considered.[53] The assessment of whether an attack is widespread is neither exclusively quantitative nor geographical, and the temporal scope of an attack does not impact on this specific analysis.[54] Widespread refers to the large-scale nature of the attack and the number of people targeted.[55] The widespread nature encompasses an attack undertaken over a large geographic area or a small one.[56] However, when occurring in a small geographic area, it must be directed against many civilians.[57]
A widespread attack is massive, frequent, undertaken in a collective manner with considerable seriousness and directed against a multiplicity of victims.[58] The attack on the civilian population, and not the individual acts of the perpetrator, need to be widespread or systematic.[59] A person can be held accountable for committing CAH even when they participate in a single crime.[60] The act of the perpetrator must have a sufficient nexus to an attack that is directed against a civilian population.[61]
The mens rea of the perpetrator contributes to the specific nature of CAH.[62] The perpetrator must be cognisant of the fact that the crime he/she is committing (must have the intention to commit the crime) is connected to a widespread or systematic attack which is directed against the civilian population.[63]
The geographical and temporal proximity of the relevant acts of the perpetrator are relevant to determine if the acts have a nexus to the attack.[64] However, acts which are perpetrated before or after the main attack against the civilian population could also, if connected sufficiently, be considered as part of that attack.[65]
A policy refers to the fact that an organisation or State has the objective of committing an attack against a civilian population.[66] The policy does not have to be formalised, it can be planned, or arise and develop only as actions are undertaken by the perpetrators.[67] It can be inferred from numerous factors, which, when taken together, establishes that a policy existed.[68]
The perpetrator does not have to have knowledge of all the characteristics of the attack on civilians or exact details of the state or organisational policy.[69]
3.1 Specific Allegations of Crimes Against Humanity
3.2 Massacre at Mai Kadra on 9 November 2020
Mai Kadra is a market town in Tigray province. It is reported that at least six hundred civilians were killed.[70]The Ethiopian Human Rights Commission and some actors accuse the TPLF of committing CAH.[71]Amnesty International says it is unable to confirm who committed the killings; but it says some witnesses blame forces backing the TPLF.[72]However, some refugees are blaming the violence on pro-government actors.[73]
We do not have enough information on how the civilians were killed. Furthermore, it is not certain that the people who were killed were civilians in the first place. It is said that the killings are crimes against humanity. However, it is also reported that the same, exact crimes, could be war crimes.[74] There is confusion. Therefore, investigations must be undertaken to see how the victims were killed, the status of the people killed and who killed them, and why.
ICL prosecutes individuals for criminal violations based on individual criminal responsibility.[75] The individual perpetrators of the crime are unknown (even the group they belong to). It is impossible to verify, for example, (in a situation where there was/is a widespread or systematic attack on the civilian population), whether the alleged perpetrator or perpetrators were aware of the attack, and whether they knew that their conduct was part of the attack. Without this information, one cannot conclude that a CAH was perpetrated. Let alone bring justice to the victims.
3.3 Killings in Axum (also spelt as Aksum)
Axum is a Town in Tigray, the majority of the people from this city are Tigrayans. It is alleged that Eritrean soldiers from 28 to 29 November 2020 systematically killed unarmed civilians (presumably Tigrayans) in this area.[76] They are alleged to have gone door to door hunting for civilians.[77] The attacks are alleged to have been on a large scale.[78] It is important to verify first, whether there was an attack on the civilian population, if so, whether it was widespread or systematic. If both answers are positive, one must see if the relevant perpetrator(s) had knowledge of the attack, if they were aware, they should have known that their conduct is part of the attack against the civilian population.[79]
ICL prosecutes individuals based on individual criminal responsibility.[80]It is not clear who are the alleged individual perpetrators. They are only defined as Eritrean soldiers. This makes it difficult to determine the knowledge and mental state of the perpetrators whether they were aware of the said attack (there needs to be a widespread or systematic attack) and that their conduct was part of the attack against the civilian population. The alleged attack, based on the facts reported, can potentially also be a war crime.[81] Investigations must be undertaken to determine the facts of what occurred, so that we can see if crimes were committed, if so, which ones, and who the alleged individual perpetrators are so that they can be brought to justice.
AUTHOR’S BIOGRAPHY
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] Amnesty International ‘I don’t know if they realised I was a person: rape and other sexual violence in the conflict in Tigray, Ethiopia’ 5, 12, 28, 29, 32, available at <https://www.amnesty.org/en/wp-content/uploads/2021/08/AFR2545692021ENGLISH.pdf> (Accessed on 09 November 2021) (hereafter Amnesty Report).
[2] Ibid
[3] Al Jazeera ‘Attacks on Eritrean refugees in Tigray ‘clear war crimes’: HRW Attacks on Eritrean refugees in Tigray clear war crimes: HRW’ available at <https://www.aljazeera.com/news/2021/9/16/ethiopia-attacks-eritrean-refugees-tigray-war-crimes-hrw> (accessed on 14 October 2021).
[4] ICTY (Trial Chamber) Prosecutor v Tadić (15 July 1999) Case No IT-94-1-A para 227.
[5] ICC Prosecutor v Jean-Pierre Bemba Gombo (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 78 (hereafter Bemba case).
[6] ICC, Prosecutor v Callixte Mbarushimana, (Decision on the confirmation of charges) (16 December 2011) para 143 (hereafter Mbarushimana case).
[7] ICC Prosecutor v. Germain Katanga, (Judgment pursuant to article 74 of the Statute) (07 March 2014) para 790 (hereafter Katanga case).
[8] ICC, Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, (Public Redacted Version Decision on the confirmation of charges) para 276, fn. 375 (30 September 2008) (hereafter Germain Katanga and Mathieu Ngudjolo Chui case).
[9] Anne Quintin, Antoine Bouvier, Julia Grignon, and Marco Sassòli, ‘How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, of International Humanitarian Law’ (2011) 1:3 Outline of International Humanitarian Law.
[10] ICTY (Appeals Chamber), Prosecutor v Miloševič (12 November 2019) Case No. IT-98-29/1-A para 198 (hereafter Miloševič case).
[11] Miloševič case, para 198.
[12] ICRC, ‘IHL Database Customary IHL Database’ available at <https://ihl-databases.icrc.org/customary-ihl/eng/docs/home> Rule 47 (accessed on 14 October 2021) (hereafter customary).
[13] Anne Quintin, Antoine Bouvier, Julia Grignon, and Marco Sassòli, ‘How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, of International Humanitarian Law’ (2011) 1:3 Outline of International Humanitarian Law – Conduct of Hostilities.
[14] Rule 7-9 customary; Miloševič Case para 53; ICTY (Appeals Chamber), Prosecutor v Stanislav Galić (30 November 2016) Case No. IT- -98-29-A, para 191 (hereafter Galić Case); ICTY (Appeals Chamber), Prosecutor v Dario Kordić and Mario Čerkez, (17 December 2004) Case No. IT-95-14/2-A, para 54 (hereafter Dario Kordić and Mario Čerkez Case).
[15] UN General Assembly, ‘Rome Statute of the International Criminal Court’ (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at <https://www.refworld.org/docid/3ae6b3a84.html> (accessed on 14 September 2021) Article 8 2 (e) (ii) (hereafter Rome Statute); Katanga case para 893.
[16] Rule 7-8 customary; Katanga case para 893.
[17] Rule 9 customary; Katanga case para 893.
[18] Rule 8 customary.
[19] Ibid
[20] Rule 10 customary; Katanga case para 893.
[21] Anne Quintin, Antoine Bouvier, Julia Grignon, and Marco Sassòli, ‘How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, of International Humanitarian Law’ (2011) 1:3 Outline of International Humanitarian Law – Indiscriminate attacks; Katanga case paras 802 and 865.
[22] Ibid
[23] Katanga case para 895; Galić case para 190; Boškoski and Tarčulovski appeal judgement para 46; Dario Kordić and Mario Čerkez case para 52.
[24] Anne Quintin, Antoine Bouvier, Julia Grignon, and Marco Sassòli, ‘How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, of International Humanitarian Law’ (2011) 1:3 Outline of International Humanitarian Law – Conduct-hostilities; Rule 15 customary.
[25] Rule 8 and 15 customary.
[26] Rule 15 customary.
[27] Ibid
[28] Anne Quintin, Antoine Bouvier, Julia Grignon, and Marco Sassòli, ‘How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, of International Humanitarian Law’ (2011) 1:3 Outline of International Humanitarian Law – Proportionality; Katanga case para. 895.
[29] Ibid
[30] Practice Relating to Rule 97 customary; S Bouché de Belle ‘Chained to cannons or wearing targets on their t-shirts: human shields in international humanitarian law’ (2008) 90:872 International Review of the Red Cross 891, 899 and 900 (hereafter Bouché).
[31] Jean-Francois Que´guiner, ‘Precautions under the law governing the conduct of hostilities’ (2006) 88:864 International Review of the Red Cross 815-816.
[32] Bouché 891, 899 and 900.
[33] Anne Quintin, Antoine Bouvier, Julia Grignon, and Marco Sassòli, ‘How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, of International Humanitarian Law’ (2011) 1:3 Outline of International Humanitarian Law – Human Shield; Practice relating to Rule 97 customary; Bouché 891, 899 and 900.
[34] Bouché 891, 899 and 900.
[35] Article 2 (e) (v) Rome Statute; ICC Prosecutor v Jean-Pierre Bemba Gombo (Judgment pursuant to Article 74 of the Statute) (21 March 2016) para 117 (hereafter Bemba Article 74 case);
[36] Article 8(2) (b) (xvi) and (e) (v) Rome Statute; Rule 52 customary.
[37] Rule 52 customary.
[38] See Article 7 Rome Statute.
[39] Ibid
[40] Ibid; See also Anne Quintin, Antoine Bouvier, Julia Grignon, and Marco Sassòli, ‘How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, of International Humanitarian Law’ (2011) 1:3 Outline of International Humanitarian Law – Criminal repression.
[41] Katanga case para 1108.
[42] Bemba Article 74 case para 156; ICC Prosecutor v Bosco Ntaganda (Judgment) (08 July 2019) para 669 (hereafter Ntaganda Case); Ongwen Case para 2675.
[43] ICC Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Decision on the Confirmation of Charges Pursuant to Article 61(7) (a) and (b) of the Rome Statute) (23 January 2012) para 110.
[44] Article 7 Rome Statute.
[45] ICTY (Trial Chamber) Prosecutor v Limaj et al (30 November 2005) Case No IT-03-66 para 184 (hereafter Limaj Trial); ICTY (Appeals Chamber) Prosecutor v Kunarac et al (12 Jun 2002 ) Case No IT-96-23 & 23/1 paras 98 101 (hereafter Kunarac Appeal); ICTY (Appeals Chamber) Prosecutor v Tihomir Blaškić (29 July 2004) Case No IT-95-14-A paras 100 and 120 (hereafter Blaškić Case); ICTR (Appeals Chamber) Prosecutor v Sylvestre Gacumbitsi, (7 July 2016) Case No ICTR-2001-64-A para 84 (hereafter Gacumbitsi Appeal); ICTR (Appeals Chamber) Prosecutor v Nahimana et al (28 November 2007) Case No ICTR-99-52-A para 922 (hereafter Nahimana Case); ICTR (Appeals Chamber) Prosecutor v Laurent Semanza, (20 May 2005) Case No ICTR-97-20-A para 269 (hereafter Semanza Case); ICTR (Appeals Chamber) Prosecutor v Ndindiliyimana et al (11 February 2014) Case No ICTR-00-56-A para 262 (Ndindiliyimana case);Comments and Observations From The Republic Of Sierra Leone on the International Law Commission’s Draft Articles on Crimes against Humanity as adopted by the Commission in 2017 on First Reading, para. 47; See for instance M J Ventura, J Singh, A Haigh and M Bernhaut, ICL, available at: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2206702> (accessed on 20 October 2021) 28; C Stahn and L Van Den Herik, ‘Fragmentation’, Diversification and ‘3D’ Legal Pluralism: ICL as the Jack-in-The-Box?’ in L Van Den Herik and C Stahn (eds.), The Diversification and Fragmentation of ICL, The Hague, Martinus Nijhoff Publishers, 2012, 59; David Hunt ‘The International Criminal Court. High Hopes, ‘Creative Ambiguity’ and an Unfortunate Mistrust in International Judges’ (2004) Journal of International Criminal Justice 64-65.
[46] Ibid
[47] International Criminal Court ‘The States Parties to the Rome Statute’ available at <https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx?__cf_chl_jschl_tk__=pmd_aWw3Awt_MAms9pyEeD92QFpZpgfDXgAYn_Iga8sMYoE-1631798979-0-gqNtZGzNAlCjcnBszQjl> (Accessed on 16 September 2021).
[48] Ibid
[49] Limaj trial para 184; Kunarac Case paras 98 and 101; Blaškić case paras 100 and 120; Gacumbitsi appeal para 84; Nahimana case para 922; Semanza case para 269; Kunarac appeal para. 98; Blaškić appeal judgement para 100; Ndindiliyimana case para 262.
[50] Ibid
[51] Katanga case para 1098; ICC-Prosecutor v Dominic Ongwen (Trial Judgment) (04 February 2021) para 2682 (hereafter Ongwen Case); ICTR (Trial Chamber) Prosecutor v Mikael Muhimana (28 April 2005) Case No ICTR-95-1B-T para 527; ICTR (Trial Chamber) Prosecutor v Sylvestre Gacumbitsi, (17 June 2004) Case No. ICTR-2001-64-T para 299.
[52] Germain Katanga and Mathieu Ngudjolo Chui case para 394; Bemba Case para 77; ICC Prosecutor v Bosco Ntaganda (Public redacted version of Judgment on the appeals of Mr Bosco Ntaganda and the Prosecutor against the decision of Trial Chamber VI of 8 July 2019 entitled ‘Judgment) (30 March 2021) para 430.
[53] Katanga case para 1124; ICC, Bemba Case para 86.
[54] Bemba Article 74 case para 163.
[55] Katanga case para 1098; Ntaganda Case para 691.
[56] Germain Katanga and Mathieu Ngudjolo Chui case para 395; Bemba case para 83.
[57] Ibid
[58] Bemba case para 83.
[59] Bemba case para 151.
[60] Bemba case para 151.
[61] Ongwen case para 2675; ICTR (Trial Chamber) Prosecutor v Ntagerura et al, (25 February 2004) Case No ICTR-99-46-T para 766.
[62] ICTY (Trial Chamber) Prosecutor v Tihomir Blaškić (3 March 2000) Case No IT-95-14 para 199 (hereafter Blaškić Trial).
[63] Blaškić trial paras 199 and 202; Katanga case para 1125; Bemba case para 88.
[64] Ntaganda case para 696.
[65] Ibid
[66] Katanga case para 1108.
[67] Ntaganda case para 674; Ongwen case para 2679.
[68] Bemba Article 74 case para 160.
[69] Katanga case para 1125; Ongwen case para 2691.
[70] United States Holocaust Memorial Museum, ‘Despite Government Claims of Victory, Risks to Civilians Persist in Ethiopia’ available at <https://www.ushmm.org/genocide-prevention/blog/despite-government-claims-of-victory-risks-to-civilians-persist-in-ethiopia > (Accessed on 16 September 2021); The New Humanitarian, ‘Ethiopia: A partial view of the humanitarian fallout emerges in Tigray’ available at <https://www.thenewhumanitarian.org/news-feature/2021/01/12/tigray-ethiopia-humanitarian-needs-assessment-incomplete> (accessed on 16 September 2020); UN warns of possible war crimes in Ethiopia; Geneva Solutions ‘Ethiopia: humanitarian fallout emerging from conflict zone’ available at <https://genevasolutions.news/peace-humanitarian/ethiopia-humanitarian-fallout-emerging-from-conflict-zone > (accessed on 16 September 2021).
[71] Risks to Civilians Persist in Ethiopia’ available at <https://www.ushmm.org/genocide-prevention/blog/despite-government-claims-of-victory-risks-to-civilians-persist-in-ethiopia > (Accessed on 16 September 2021); The New Humanitarian, ‘Ethiopia: A partial view of the humanitarian fallout emerges in Tigray’ available at <https://www.thenewhumanitarian.org/news-feature/2021/01/12/tigray-ethiopia-humanitarian-needs-assessment-incomplete> (accessed on 16 September 2020).
[72] The Times of Israel ‘UN warns of possible war crimes in Ethiopia after reports of hundreds massacred ‘ available at <https://www.timesofisrael.com/un-warns-of-possible-war-crimes-in-ethiopia-after-reports-of-hundreds-massacred> (Accessed on 16 September 2021).
[73] UN warns of possible war crimes in Ethiopia; Geneva Solutions ‘Ethiopia: humanitarian fallout emerging from conflict zone’ available at <https://genevasolutions.news/peace-humanitarian/ethiopia-humanitarian-fallout-emerging-from-conflict-zone > (accessed on 16 September 2021).
[74] See note 70.
[75] ICTY (Trial Chamber) Prosecutor v Tadic (15 July 1999) Case No IT-94-1-A para 227; ICTY (Appeals Chamber) Prosecutor v Brdjanin (3 April 2007) Case No IT-99-36-A, para 430; Article 7 UN Security Council, Statute of the International Criminal Tribunal for the Former Yugoslavia (as amended on 17 May 2002) 25 May 1993 available at <https://www.refworld.org/docid/3dda28414.html> (accessed 15 September 2021); Article 6 (H) UN Security Council, Statute of the International Criminal Tribunal for Rwanda (as last amended on 13 October 2006) 8 November 1994 available at <https://www.refworld.org/docid/3ae6b3952c.html> (accessed 15 September 2021).
[76] Amnesty International ‘Ethiopia: Eritrean troops’ massacre of hundreds of Axum civilians may amount to crime against humanity’ available at <https://www.amnesty.org/en/latest/press-release/2021/02/ethiopia-eritrean-troops-massacre-of-hundreds-of-axum-civilians-may-amount-to-crime-against-humanity/> (Accessed on 16 May 2021) (hereafter Amnesty: Massacre in Axum)
[77] Ibid
[78] Ibid
[79] Blaškić trial paras 199 and 202; Katanga case para 1125; Bemba case para 88.
[80] See note 75.
[81] United Nations Office on Genocide Prevention and the Responsibility to Protect, ‘Definitions War Crimes’ available at <https://www.un.org/en/genocideprevention/> (accessed on 16 September 2021).