ihl@ucu.ac.ug +256 312 350 800/465
ihl@ucu.ac.ug +256 312 350 800/465
Blog Editor

By

Allegations of the Commission of War Crimes and Crime Against Humanity in Tigray, Ethiopia (Section B)

By Gwasira Jasper (See end of article for profile)

Image borrowed from https://www.arabnews.com/node/1820141/world, Photo by TOPSHOT – Women mourn the victims of a massacre allegedly perpetrated by Eritrean Soldiers in the village of Dengolat, North of Mekele, the capital of Tigray on February 26, 2021/ AFP / EDUARDO SOTERAS

This is a continuation of the previously published Section A of this Article which covers war crimes, allegations of sexual crimes and the conclusion.

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.

4 WAR CRIMES

The paper will only focus on the definition of a war crime under NIAC, since the conflict which it deals with, is a NIAC. War crimes means ‘serious violations of the laws and customs applicable in an armed conflict not of an international character’ and ‘serious violations of Article 3 common to the four Geneva Conventions.’[1] With respect to the serious nature of the violation, violations are treated as being serious when they endanger protected persons or objects or when they violate important values.[2] Most war crimes involve ‘death, injury, destruction or unlawful taking of property.’[3] All acts that amount to war crimes do not necessarily have to result in the actual damage to protected persons or their objects.[4]

To establish individual criminal liability for a war crime, the violation must entail theindividual criminal responsibility of the person who committed the act.[5]The perpetrator must be aware of the factual circumstances which established the existence of the relevant armed conflict.[6] The person must also be aware of the connection (nexus) between these factual circumstances and his/her conduct.[7]

The armed conflict should have played a critical part in a perpetrator`s decision, ability to perpetrate the relevant crime, or in the manner with respect to which the conduct was perpetrated.[8] Here are examples of acts which are prohibited (which, if committed, result in the commission of a war crime):

“murder; mutilation, cruel treatment and torture; taking of hostages; intentionally directing attacks against the civilian population; intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals; pillaging; rape, sexual slavery, forced pregnancy or any other form of sexual violence; conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.”

4.1 Blockage (restriction) of humanitarian assistance

It is alleged that Ethiopia and Eritrea committed war crimes through blocking delivery of humanitarian assistance into Tigray province, they are accused of using starvation as a weapon of war.[9] The denial of humanitarian assistance can amount to a war crime.[10] The Security Council, among other actors, stated that Ethiopia at times  allowed delivery of assistance (into Tigray province) and in certain instances restricted it.[11] When there is a gap between the needs of the population and what the warring parties can provide, the parties are obliged to permit and facilitate passage of humanitarian aid.[12] In such instances, humanitarian organisations have the right to provide aid.[13] These organisations must comply with the principles of humanity- they must be impartial, independent, and neutral.[14]

They must seek consent and be authorised by the relevant party, prior to helping. The decision of the relevant party, to consent to humanitarian assistance on its territory is  not discretionary.[15] While discharging their obligation to allow and facilitate relief operations, the parties and states concerned are entitled to exert a right of control over the humanitarian operations and prescribe technical arrangements. In any case, the right of control recognised by IHL should not unduly delay humanitarian operations, impede their rapid deployment or make their implementation impossible.[16]

Humanitarian assistance can be limited only due to imperative military necessity, in such cases, the activities and movements of individuals providing relief can be temporarily restricted.[17] Military necessity cannot be utilised to refuse a valid offer of assistance and to refuse in entirety, humanitarian assistance, proposed by a humanitarian body, which complies with humanitarian principles.[18]

When a humanitarian organisation fails to comply with the principles of humanity, consent to operate can be denied.[19] Ethiopia accused several humanitarian actors of being impartial,[20] it accused some of them of providing weapons to the TPLF.[21] Several organisations were expelled from Ethiopia.[22] Ethiopia denied that there was hunger in Tigray- hence, in Ethiopia`s view, there was no need for humanitarian assistance.[23]

Ethiopia alleged that it restricted access, in some instances, because several humanitarian organisations had not complied with the principles of humanity.[24] This if true, investigations need to be undertaken to verify this, is a valid ground for restricting humanitarian access.[25] Furthermore, Ethiopia, claims there was  no hunger in Tigray/need for humanitarian assistance,[26] if true, then no war crime could have been committed.[27] In such a situation, Ethiopia is not obliged to accept assistance. Several actors claim that the reasons used by Ethiopia to restrict access are not true.[28]

There are conflicting narratives. It is unclear, if Ethiopia and Eritrea  committed war crimes by restricting access to humanitarian assistance. Restriction of or denial of  humanitarian aid  does not tantamount to  war crimes  nor  commission of a war crime.  Investigations need to be undertaken so that detailed information concerning the restriction of aid can be gathered, and analysed, to evaluate whether the restriction fulfils the requirements of the elements of war crimes or any other crime for that matter.

4.2 Attack on humanitarian workers

It is alleged that humanitarian workers have been attacked, and that several of them killed.[29] It is prohibited to attack humanitarian personnel, a violation of this prohibition, amounts to a war crime.[30] There are not many details provided with respect to the context of how the workers, in general, were killed, and who the individual perpetrators of these alleged crimes are.[31]

Humanitarian personnel lose protection from attack when they commit acts which are harmful to one of the warring parties (conduct which is outside their humanitarian functions) such as directly participating in hostilities.[32] The available information does not enable one to determine whether a war crime occurred. ICL prosecutes individuals for criminal violations based on individual criminal responsibility. We do not even know who the individual perpetrators are, hence, we cannot even analyse their knowledge and mens rea. Furthermore, we do not know whether the deaths are connected to the NIAC and whether the NIAC facilitate the killings. The issues raised here, are part of the critical information needed to determine if a war crime was committed. Hence, investigations must be undertaken to gather details, which will enable the determination of whether a war crime(s) was committed.

4.3 Attack on civilian hospitals

Ethiopia has been accused of deliberately attacking (on numerous occasions) civilian hospitals and occupying them.[33] It is a war crime to attack hospitals.[34] A hospital can only be attacked if it is used, at the time of attack, to commit acts which are harmful to a party to the conflict.[35] The allegations with respect to the attacks are just blanket accusations (lack substantiation) lacking details on the context of the attacks. Without details, it is impossible to determine whether the attacks on the hospitals (or on one of them or some of them) were a violation of IHL or legitimate attacks or if there was an attack on hospitals in the first place. Hence, investigations must be conducted to gather necessary data which enables one to undertake a determination whether a war crime occurred.

4.4 Killings, looting and destruction of civilian property in Axum/Aksum

It is alleged that from 28to 29 November 2020, Eritrean and Ethiopian forces indiscriminately carried out attacks, deliberately shot civilians who tried to remove dead bodies, went house to house killing adult men and young boys, lined up civilians and killed them, pillaged and destroyed civilian property, including a hospital.[36] People in Axum said they could easily identify Eritrean troops due to their licence plates, distinctive camouflage and footwear which is used by the Eritrean army.[37]

According to Amnesty International, its satellite imagery analysis corroborates allegations of indiscriminate shelling and mass looting and identifies that there are signs of new mass burials near two of Axum’s churches.[38]They did not provide details of how their analysis concluded that there was indiscriminate shelling and mass looting. Signs of new mass burials does not mean attacks were indiscriminate and or civilians were directly attacked.

It is a war crime to deliberately attack civilians, launch indiscriminate attacks, pillage civilian property, and destroy protected objects like hospitals.[39] Based on the little information we have, Eritrean, and Ethiopian forces might have committed war crimes or CAH.[40] The matter is not clear.

ICL prosecutes individuals for criminal violations based on individual criminal responsibility.[41] We do not know who the alleged individual perpetrators of the crime are. We need to have this information, as the knowledge and the mens rea of a perpetrator are some of the crucial elements that need to be determined to see whether the alleged crime(s) committed by the alleged perpetrators are war crimes or any other crime, for that matter.[42]Without knowing the mens rea and knowledge of the perpetrator, one cannot conclusively say, a war crime has been committed.[43]Due to lack of clarity of the facts, an independent investigation must be launched.[44] This investigation is important as it will conclusively determine whether a war crime(s) was committed.

4.5 Attack on civilians in Mekelle

The majority of the people who come from this city are Tigrayans, Mekelle is the regional capital of Tigray. The majority of the people from this province and the capital city are Tigrayan. On November 28, 2020, Ethiopian troops are alleged to have directly attacked civilians (presumably Tigrayan).[45]

Directly attacking civilians is a war crime.[46] On the face of it, it appears war crimes were committed. However, there are important questions which need to be addressed. For example, the civilians which are alleged to have been directly attacked, were they directly participating in hostilities or not, at the time they were attacked? If they were, they could be directly attacked.[47]

Were the relevant ‘civilians’ at the time of the attack members of an armed group? If they were, then these relevant ‘civilians’ at the time of the attack had lost their civilian status and protection as civilians.[48] Thus, they could be directly attacked because at that time they could not be considered civilians but members of an armed group.[49]

The information available is inadequate to determine whether a war crime was committed. Greater context needs to be provided to make it possible to determine whether war crimes were committed. An independent investigation will provide details (facts) to enable thorough analysis of what happened there.

4.6 Indiscriminate attacks in Humera

Humera is a province in Tigray, which is occupied mostly by Tigrayans. Ethiopia is accused of launching indiscriminate attacks on 9 November 2020.[50] The attacks are alleged to have hit civilian infrastructure and struck residents.[51] Tigrayan local militia were in town during the attacks.

With regards to the issue that residents were struck, the question is, were these ‘residents’: combatants or civilians at that time taking a direct part in hostilities, or civilians not taking a direct part in hostilities or a mixture of these groups? Clarification of this is crucial, as the ‘residents,’ which fall in the first two categories could be directly attacked.[52]

Combatants and civilians taking a direct part in hostilities in the mixed group can be directly attacked, but the means used should be able to distinguish between these two categories and civilians not taking a direct part in hostilities.[53] In such instances, it is possible that civilians not taking a direct part in hostilities could be struck, even though the means used to launch the attack distinguished between them on one hand and combatants and or civilians taking a direct part in hostilities on the other hand, precautions undertaken, and the principle of proportionality respected.[54] The fact that civilians were struck does not mean an attack was indiscriminate or illegal.

There is insufficient information to determine whether a crime was committed. Investigations need to be undertaken so that relevant information is gathered. This will assist to determine whether a crime was perpetrated, and, if so, which, and by whom.

With respect to the issue that civilian infrastructure was hit, there is no description of how witnesses concluded that the relevant attacks were conducted in an indiscriminate manner. It seems that the fact that civilian infrastructure (including homes) was hit, witnesses concluded that the attacks were indiscriminate. There are instances where civilian objects can be struck, even though they are not the object of attack. For example, if there were combatants and or civilians participating directly in hostilities at the time of the attack in the relevant infrastructure, the combatants and the relevant civilians could be attacked whilst they were in those infrastructures (including homes).[55] Civilian infrastructure cannot shield a combatant or civilian directly participating in hostilities from an attack.[56]

There is a need to gather more information with respect to the circumstances (context) in which the civilian infrastructure was hit. As there is insufficient information to conclude that the attacks were indiscriminate. An investigation must be undertaken to determine what happened.

4.7 Shelling of civilian infrastructure in Shire

Shire is a town in the province of Tigray, the vast majority of people from this town are Tigrayans. On 17 November 2020, Ethiopian troops are alleged to have shelled and struck civilian infrastructure including houses of civilians, a hotel, a university, an industrial area, and residential areas which are close to the Abuna Aregawi church.[57]

Civilian objects cannot be the object of an attack.[58] However, the fact that a civilian object was hit does not necessarily mean the civilian object was the object of attack.[59] To determine whether the attack was legitimate there is need for more information. For example, what was the object of attack in each specific allegation. If it was a civilian object, then a war crime was committed.[60] If the object of attack were combatants hiding in the relevant civilian infrastructure at the time of the attack, or combatants launching attacks from said infrastructure and or civilians participating directly in hostilities in said structure(s) at the relevant time of the attack(s), the combatants and relevant civilians mentioned in those civilian infrastructures could legitimately be attacked when they were in the relevant civilian infrastructure.[61]

The object of the attack would not be the civilian infrastructure (object) but the combatants and or civilians who were directly participating in hostilities.[62] Civilian infrastructure does not shield a combatant or civilian directly participating in hostilities from an attack.[63] When a civilian object is utilised in such a manner that it loses its civilian character and qualifies as a military objective, it can be attacked.[64] If the relevant civilian infrastructure/objective was used at the time of the relevant attack, in such a way that it lost its civilian character and qualified as a military objective, it could be attacked.[65] For example, if the industrial area was now being used to manufacture weapons, at the time of the attack, although it was a civilian object at some point, it stopped being a civilian object (at that time) and became a military objective.[66]

There is not enough information for one to be able to conclude whether the attacks resulted in the commission of war crimes. Investigations must be undertaken to rectify this situation.

4.8 Attack on a church during service in Dengelat

Dengelat is a village in the province of Tigray, the village is mostly occupied by Tigrayans. On 30 November 2020, Eritrean troops are alleged to have committed war crimes by attacking a church during mass, claiming the lives of civilians including 20 Sunday School children. The Ethiopian Human Rights Commission says it has managed to corroborate the events of this incident, i.e., that an attack was launched and that children among many other people were killed. The Commission did not provide further details.

Civilian objects cannot be the object of attack and cannot be used to shield combatants from attacks or civilians directly participating in hostilities at the time of the attack.[67] If there were civilians taking a direct part in hostilities at the time of the attack and or combatants in the church the two categories of people could be attacked in the church, even during mass- when civilians not taking an active part in hostilities were present.[68] The object of attack would be the combatants and or civilians taking a direct part in hostilities and not the church itself, nor civilians not taking a direct part in hostilities.[69]

If the attackers took precautions before the attack, used means of attack that discriminated between civilians and combatants, used methods of warfare which are permitted, and launched a proportionate attack, the relevant attack might be legal.[70] However, if they did not do any of the things mentioned, then the attackers might have committed a war crime.[71]

There is insufficient information to conclude that a war crime was perpetrated. The alleged attack can also potentially amount, for example, to a CAH.[72] Investigations must be undertaken to gather more information so that the context of the attack can be understood with greater clarity. If a crime was committed, the investigation will assist to identify which crime or crimes were committed, and by whom.

4.9 Massacre in Mahbere Dego

Mahbere Dego is a small town in central Tigray, this town is occupied predominately by Tigrayans. In January 2021, it is alleged that a massacre occurred (it is alluded that the victims are Tigrayans) which was undertaken by members of the Ethiopian military.[73] At least 15 men were killed. There is a series of five video clips showing armed men in military uniform (uniform has been allegedly identified as the Ethiopian military uniform) leading a group of unarmed men to the edge of a cliff.[74] Some of the victims were shot at point blank range, dead bodies were pushed over the cliff.[75] According to some, the perpetrators in one of the videos can be heard insulting and mocking the dead.[76] Other sources have not reported about this aspect.[77]

It is said that the armed men can be heard speaking in Amharic, a language native to people who come from Amhara region (the main language spoken in Ethiopia).[78] It is not clear who the victims are (whether they are civilians or combatants) in the video. The victims are wearing civilian clothes.[79] The victims can be heard speaking in Tigrinya, this is the language spoken in Tigray.[80] According to some sources, the perpetrators seem to suggest that the victims belong to the TPLF (or are sympathetic to them) and that they said they will not show the victims any mercy.[81]

However, other sources have not mentioned this aspect.[82] The video appears to show men, who are unarmed, who have been detained, and who are then subsequently executed. It appears from the video that the victims were in the hands of the adversary (power of the adversary).[83] It is not clear whether the victims are civilians who had been detained or if the victims were prisoners of war. Further investigations need to be undertaken to verify the status of the victims.

If the victims were targeted because they were soldiers then the crimes which were committed against them could not amount to CAH, as this crime can only be committed when the object of attack is the civilian population.[84] Unlike war crimes, the object of attack can be civilians or combatants.[85] In the video, a voice is allegedly heard, saying that they will not show any mercy to the victims. This could be interpreted to say, if the victims were prisoners of war, that no quarter will be given. Declaring that no quarter will be given means that a person declares (states) that, they will not take any prisoners. Thus, anyone captured would be killed. Such a declaration amounts to a war crime.[86]

It is possible that the victims were civilians and not prisoners of war (not combatants). Thus, the statement could also be implied to mean that they would kill all the civilians which they detained. Such an instruction, if complied with, can amount to a war crime.[87] However, if the requirements of CAH are met, the crime can be a CAH. It is not clear which crime was perpetrated.[88]

Mocking and insulting the dead falls under the prohibition not to commit outrages upon personal dignity, in particular humiliating and degrading treatment.[89] If it is proven that this indeed happened, then a war crime was committed. Investigations must be undertaken to gather facts of what happed. Once the facts have been gathered, it will be possible to determine exactly which crime(s) were committed.

4.10 Killing of nine young men by the Pro TPLF militia

It is reported that nine young Eritrean men were killed outside a church.[90] We are not provided details of exactly how these “ nine young Eritrean men” were killed.[91] It is alleged that the killings amount to war crimes.

It could be they were civilians who were not taking an active part in hostilities, if that is the case, a war crime was committed.[92] If the men killed were taking an active part in hostilities, at the time they were killed, or combatants (so long as they were not hors de combat), they could be attacked (at any time), even outside a church.[93] There is insufficient information to determine whether a war crime was committed. The killing of nine young men outside a church does not imply a  war crime was committed. Investigations should be undertaken to gather relevant facts, to assist to determine whether a war crime was perpetrated.

4.11 Indiscriminate attacks by the TPLF

They are accused of launching indiscriminate attacks in civilian areas in Amhara (presumably targeting Abyssinians- people from Amhara are known as Abyssinians).[94] Such allegations, if true, amount to war crimes.[95] The allegations of indiscriminate attacks are not substantiated.[96] They are just blanket allegations lacking details.[97] Investigations must be undertaken with the objective of getting the details of each of the alleged indiscriminate attacks, so that one can be able to analyse whether any (or all) of the attacks were indiscriminate.

4.12 Burning of Civilian Homes by the TPLF

Destroying civilian property is a war crime.[98] There is no context given with respect to how the homes were destroyed.[99] This makes it impossible to determine whether a war crime was committed. If the homes were utilised in such a manner that they lost their character as civilian objects and qualified as military objectives, the relevant homes could be burnt down.[100] For example, if the homes were being used, at the time of destruction, to store ammunition and or launch attacks, then the destruction of the homes would not be a war crime.[101]

Without details on how/why (context) the homes were burnt down and by whom, it is impossible to analyse whether a war crime occurred. Investigations should be carried out, to gather relevant information. Only then, can one be able to determine whether a war crime(s) was perpetrated.

4.13 Going house-to-house killing civilians

In Amhara region, the TPLF are accused of going house to house killing civilians (presumably targeting Abyssinians), it is alleged their conduct amounts to a war crime.[102] There is insufficient context on how the TPLF killed the “civilians.” If the “civilians” were part of the Amhara militia (Fano militia),[103] these “civilians” were combatants.[104] They could be attacked at any time (except when hors de combat) including when they were inside their homes.[105] If attacks were being launched from the relevant homes against the TPLF then the TPLF could attack the people in the relevant homes.[106] Available details are insufficient to determine if any crime was committed, information needs to be gathered that enables an analysis of whether a war crime(s) was perpetrated. Therefore, investigations must be held to gather the required information.

5 ALLEGATIONS OF SEXUAL CRIMES

Ethiopian, Eritrean, the Amhara Police and Fano militia are accused of committing sexual crimes against women from Tigray.[107] The TPLF has been accused of raping Eritrean women.[108] Sexual crimes (for the purposes of this paper: rape, sexual slavery, and rape as a form of torture) have been grouped in one section because there is debate whether the relevant specific crimes which are alleged to have been perpetrated are CAH or war crimes.

It is possible that the relevant sexual crimes that are alleged to have occurred could be a mix of crimes, some could be: war crimes, CAH and even domestic law violations of sexual crimes. Therefore, it is crucial that investigations are undertaken so that the issue of the alleged sexual crimes can be clarified.

The alleged individual perpetrator(s) of each alleged commission of every single alleged incident of the perpetration of a particular sexual crime need to be identified. Once the perpetrators are identified, it will then be possible to gauge the knowledge and mental state of the perpetrators. A perpetrator’s knowledge and mental state are some of the crucial elements which need to be verified to determine whether the contextual elements of the relevant crimes have been met.

For the contextual elements of CAH, a perpetrator needs to know there is a widespread or systematic attack on the civilian population, the perpetrator must know that his/her conduct is a part of the attack.[109]  With respect of war crimes, the conduct of a perpetrator must have taken place in the context of an armed conflict. The perpetrator must be aware of the factual circumstances which established the existence of the relevant armed conflict.[110] The person must also be aware of the connection between the war and his/her conduct.[111] The conflict must have played a big part in the perpetrator’s decision, and in the perpetrator’s ability to perpetrate the relevant crime or the way in which the crime was committed.[112]

5.1 Allegations of rape of women

Ethiopia, Eritrea, the Amhara Police and Fano militia are accused of committing rape as a CAH; and it is also alleged that the instances of rape that are allegedly occurring might amount to be war crimes.[113] There is no clarity on the matter. The TPLF has been accused of committing rape as a war crime.[114] The elements of the crime of rape as a war crime or CAH are the same. Rape is defined as the penetration of any part of the body of the victim or of a perpetrator with a sexual organ, or of the genital or anal opening of a person with an object or any other part of the body.[115] The penetration occurs using coercion or force or a perpetrator abuses his/her power against the victim or another individual, or takes advantage of an environment which is coercive, or the penetration was perpetrated against an individual who is unable  to give genuine consent.[116]

It is not clear who exactly are alleged to have physically conducted the rape. The alleged physical perpetrators need to be identified. Once the physical perpetrators have been identified, one can then determine if rape as a war crime or CAH or even as a domestic offence has been committed, as we would now be able to gauge a perpetrator’s knowledge and mental state, thus enabling us to analyse which crime was committed.[117]

5.2 Allegations of sexual slavery

It is reported that women have been held in sexual slavery (alleged that women were raped for days and in some instances weeks whilst held in captivity) particularly by Ethiopian and Eritrean forces and their allied militias.[118] The elements of crime, (whether as a CAH or a war crime) penalises the limitation or control of a victim’s sexual autonomy by a perpetrator while the victim is kept in a situation of enslavement.[119] To commit this crime, a perpetrator must have exercised any of the powers which are attached to the right of ownership over a person or persons.[120] Furthermore, a perpetrator must have caused such person or persons to participate in an act or acts of a sexual nature (this crime is not limited to the commission of rape).[121]

The physical perpetrators of the alleged sexual slavery have not been identified. Therefore, one cannot evaluate their knowledge and mental state.[122] Without knowing their knowledge and mental state, it is impossible to conduct a conclusive evaluation of whether sexual slavery as a war crime or as a CAH was committed.[123] Hence, it is crucial that investigations must be conducted to determine what crime was committed.

5.3 Rape as torture

It is also alleged that some of the reported incidents of rape against Tigrayan women by Ethiopia forces, Eritrea troops, the Amhara Police and Fano militia also satisfy the crime of rape as a form of torture and that this form of torture is widespread and systematic (CAH).[124] It is also alleged that the exact relevant crimes might be war crimes.[125] A person can be convicted for committing rape and committing rape as a form of torture, based on the same conduct.[126]

For rape as a form of torture to be proven,[127] it must be committed in a manner that fulfils the elements of the crime of torture, namely that the perpetrator committed the rape by intentionally inflicting severe physical or mental pain or suffering on a victim, the infliction must be done with the aim of getting ‘information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind’.[128]

It is reported that some women who were raped had metal rods, large nails and multiple types of metal, gravel, tissue paper, and plastic shrapnel inserted deep into their vaginas, some were raped in front of their children and husbands.[129] The reported relevant cases are alleged to have caused severe physical and mental trauma.[130]

Once again the alleged physical perpetrators have not been identified. Investigations must be undertaken to see whether rape as a form of torture has been committed, and if it has been, whether it is a war crime or CAH or a domestic crime. Without knowing the identities of the physical perpetrators, one cannot determine the exact crime committed.[131]

5.4 Crime against Humanity of Persecution

It is alleged that Ethiopian and Eritrean troops, the Amhara Police and Fano militia have committed (on numerous occasions) the CAH of persecution based on the discriminatory ground of gender.[132] The CAH of persecution occurs when a perpetrator severely deprives a person or persons of one or more fundamental rights that are guaranteed under international human rights law.[133] According to the ICC, a victim or victims must have been targeted by a perpetrator by reason of the identity of a group or collectivity or targeted the group or collectivity as such, and that such targeting was based on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognised as impermissible under international law.[134]

It is alleged that Tigrayan women were targeted (discriminated against) for sexual violence such as rape and sexual slavery.[135] Rape and sexual slavery, individually, are severe deprivation of rights.[136] The physical perpetrators of this alleged crime have not been identified. They must be identified. The knowledge and mens rea of the perpetrator(s) are some of the crucial elements which need to be evaluated to see if this crime was committed.[137]

Ethiopia and Eritrea have not ratified the ICC Statute, the alleged crimes (committed against Ethiopian nationals by Ethiopian and Eritrean nationals) are said to have taken place in Ethiopia.[138] It is argued that persecution based on gender is not recognised under customary international law and that persecution can only occur on the following discriminatory grounds racial, religious, and political.[139] If this is correct, then there is no crime of persecution based on the discriminatory ground of gender, which could have taken place. However, if the matter is referred (using one of the methods of referral-this issue will not be addressed here) to the ICC,  it is possible that relevant perpetrators could be charged for persecution as defined under the ICC Statute.

6. CONCLUSION

The extent to which the conflict included mass atrocities is not clear.[140] The individual perpetrators of all the relevant crimes have not been identified. Without knowing a perpetrator’s knowledge and mens rea, one is incapable to determine that a particular crime is a war crime or CAH, as the perpetrator’s mens rea and knowledge are some of the crucial legal elements which need to be determined to evaluate whether the legal requirements of a particular relevant crime have been satisfied.

Therefore, it is impossible to state that any of the allegations are a particular crime, without identifying, the alleged individual perpetrators of the relevant crime, their knowledge, and mens rea. 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. The blockage of access to Tigray could have facilitate mass atrocities and made it easier for the atrocities to be covered up. The undertaking of investigations could aid in bringing relevant perpetrators to justice for the crimes they committed be they international crimes and or domestic crimes. There it is crucial that investigations be conducted as soon as possible.

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] Rule 156 customary.

[2] Ibid

[3] Ibid

[4] Ibid

[5] ICTY (Appeals Chamber) Prosecutor v. Dusko Tadić aka “Dule” (2 October 1995) Case No IT-94-1 paras 94, 95, 129, 130, 131, 134 and 135; How Does Law Protect-Individual criminal responsibility.

[6] Ongwen case para 2692.

[7] ICC Prosecutor v. Thomas Lubanga Dyilo (Judgment pursuant to Article 74 of the Statute) (14 March 2012) para 1016 (hereafter Lubanga Article 74).

[8] ICC Prosecutor v Thomas Lubanga Dyilo (Public Redacted Version with Annex I Decision on the confirmation of charges) (29 January 2007) para 287.

[9] Tom Dannenbaum, Famine in Tigray ‘Humanitarian Access, and the War Crime of Starvation’ available at <https://www.justsecurity.org/77590/famine-in-tigray-humanitarian-access-and-the-war-crime-of-starvation/> (accessed on 5 October 2021) (hereafter War Crime of Starvation); Eliza Mackintosh and Richard Roth, ‘UN confirms military forces blocking aid in Ethiopia’s Tigray region following CNN investigation’ available at <https://edition.cnn.com/2021/05/13/africa/ethiopia-tigray-un-confirms-military-aid-blockade-intl/index.html> (accessed on 5 October 2021); U.S State Department ‘Continuing Atrocities and Denial of Humanitarian Access in Ethiopia’s Tigray Region’ Press Statement by Antony J. Blinken, Secretary of State, available at <https://www.state.gov/continuing-atrocities-and-denial-of-humanitarian-access-in-ethiopias-tigray-region/> (accessed on 4 October 2021); Laetitia Bader ‘The Latest on the Crisis in Ethiopia’s Tigray Region, Human Rights Watch’, available at <https://www.hrw.org/news/2021/07/30/latest-crisis-ethiopias-tigray-region> (accessed on 4 October 2021) (hereafter Laetitia Bader); BBC, ‘Ethiopia’s Tigray crisis: What’s stopping aid getting in?’available at  <https://www.bbc.com/news/57929853> (accessed on 4 October 2021) (hereafter What’s stopping aid getting in?).

[10] Christa Rottensteiner, ‘The denial of humanitarian assistance as a crime under international law’ (1999) 835, International Review of the Red Cross.

[11] United Nations Security Council ‘Security Council Press Statement on Ethiopia’ SC/1450, 22 April 2021 available at <https://www.un.org/press/en/2021/sc14501.doc.htm> accessed on 5 October 2021.

[12] Rule 55-56 customary; International Committee of the Red Cross ‘Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)’ 8 June 1977, 1125, UNTS 609, available at <https://www.refworld.org/docid/3ae6b37f40.html >  (accessed on 15 October 2021) Article 18 (2) (hereafter Protocol II); David Matyas, ‘The Tigrayan Conflict and the Laws of Humanitarian Assistance, OpinioJuris’, available at <http://opiniojuris.org/2020/11/20/the-tigrayan-conflict-and-the-laws-of-humanitarian-assistance/> (accessed on 5 October 2021)

[13] Rule 55-56 customary.

[14] Rule 55-56 customary; Protocol II Article 18 (2); David Matyas, ‘The Tigrayan Conflict and the Laws of Humanitarian Assistance, OpinioJuris’, available at <http://opiniojuris.org/2020/11/20/the-tigrayan-conflict-and-the-laws-of-humanitarian-assistance/> (accessed on 5 October 2021).

[15] ICRC ‘ICRC Q&A and lexicon on humanitarian access’ (2014) 96:893 International Review of the Red Cross p 364 (hereafter ICRC Q&A) 5; See Rule 55-56 customary; Protocol II Article 18 (2).

[16] ICRC Q&A p 364; See Rule 55-56 customary; Protocol II Article 18 (2).

[17] Rule 56 customary.

[18] ICRC Q&A p 364; See Rule 55-56 customary; Protocol II Article 18 (2).

[19] Rule 55-56 customary; Protocol II Article 18 (2); David Matyas, ‘The Tigrayan Conflict and the Laws of Humanitarian Assistance, OpinioJuris’, available at <http://opiniojuris.org/2020/11/20/the-tigrayan-conflict-and-the-laws-of-humanitarian-assistance/> (accessed on 5 October 2021).

[20] United Nations News ‘Ethiopia: ‘Heartbreaking’ devastation in Tigray, says UN humanitarian chief’ <available at https://news.un.org/en/story/2021/08/1097082> (accessed on 5 October 2021).

[21] APA News ‘Weapons being smuggled to TPLF rebels – Ethiopian govt’ available at  <http://www.apanews.net/en/news/weapons-being-smuggled-to-tplf-rebels-ethiopian-govt> (accessed on 5 October 2021); The New Humanitarian ‘Tigray aid response hit by suspensions, blockade ‘The message is that if you want to continue your programme… then you will be silent,’ available at <https://www.thenewhumanitarian.org/news/2021/8/9/tigray-aid-response-hit-by-suspensions-blockade> (accessed on 5 October 2021).

[22] The New Humanitarian ‘Tigray aid response hit by suspensions, blockade ‘the message is that if you want to continue your programme… then you will be silent,’ available at <https://www.thenewhumanitarian.org/news/2021/8/9/tigray-aid-response-hit-by-suspensions-blockade> (accessed on 5 October 2021).

[23] Delia Burns ‘Tigray: Time for the UN to Report on Attacks on Humanitarian Facilities and Personnel’ available at <https://sites.tufts.edu/reinventingpeace/2021/07/14/tigray-time-for-the-un-to-report-on-attacks-on-humanitarian-facilities-and-personnel/> (accessed on 5 October 2021).

[24] United Nations News ‘Ethiopia: ‘Heartbreaking’ devastation in Tigray, says UN humanitarian chief’ <available at https://news.un.org/en/story/2021/08/1097082> (accessed on 5 October 2021); David Matyas, ‘The Tigrayan Conflict and the Laws of Humanitarian Assistance, OpinioJuris’, available at <http://opiniojuris.org/2020/11/20/the-tigrayan-conflict-and-the-laws-of-humanitarian-assistance/> (accessed on 5 October 2021).

[25] Rule 55-56 customary; Protocol II Article 18 (2).

[26] See note 103.

[27] Rule 55-56 customary.

[28]  See note 107.

[29] United Nations Press release, ‘Secretary-General Deeply Shocked by ‘Unacceptable’ Killing of Humanitarian Workers in Ethiopia’s Tigray Region, Saying Perpetrators Must Be Found, Punished’ available at <https://www.un.org/press/en/2021/sgsm20799.doc.htm>(Accessed on 4 October 2021); Laetitia Bader; What’s stopping aid getting in? Delia Burns ‘Tigray: Time for the UN to Report on Attacks on Humanitarian Facilities and Personnel’ available at <https://sites.tufts.edu/reinventingpeace/2021/07/14/tigray-time-for-the-un-to-report-on-attacks-on-humanitarian-facilities-and-personnel/> (accessed on 5 October 2021).

[30] Jean-Marie Henckaerts and Louise Doswald-Beck with contributions by Carolin Alvermann, Knut Dormann and Baptiste Rolle Customary International Humanitarian Law Vol I (2009) 106-108; Practice Relating to Rule 31 customary.

[31] United Nations Press release, ‘Secretary-General Deeply Shocked by ‘Unacceptable’ Killing of Humanitarian Workers in Ethiopia’s Tigray Region, Saying Perpetrators Must Be Found, Punished’ available at <https://www.un.org/press/en/2021/sgsm20799.doc.htm> (Accessed on 4 October 2021).

[32] How Does Law Protect- Loss of Protection.

[33] Laetitia Bader; Medecins Sans Frontieres ‘Ethiopia Tigray crisis People left with few healthcare options in Tigray as facilities looted, destroyed’ available at <https://www.msf.org/health-facilities-targeted-tigray-region-ethiopia> (accessed on 4 October 2021); See also 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) 2021.

[34] Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907, Annex to the Convention: Regulations Respecting The Laws and Customs of War on Land – Section II: Hostilities – Chapter I: Means of Injuring The Enemy, Sieges, and Bombardments – Regulations: Article 27 (hereafter Regulations); Rule 28 customary.

[35] Article 27 Regulations; Rule 28 customary.

[36] Amnesty: Massacre in Axum (Accessed on 16 May 2021); Human Rights watch ‘Ethiopia: Eritrean Forces Massacre Tigray Civilians’ available at <https://www.hrw.org/news/2021/03/05/ethiopia-eritrean-forces-massacre-tigray-civilians> (accessed on 16 September 2021) (hereafter Eritrean Forces Massacre Tigray Civilians).

[37] Amnesty: Massacre in Axum; Eritrean Forces Massacre Tigray Civilians.

[38] Amnesty: Massacre in Axum.

[39] Mbarushimana case para 143; Bemba Case Article 74para 117; Article 2 (e), International Criminal Court, Rome Statute Article 8 2 (e) (ii); Ongwen case, Trial Chamber: Trial Judgment (4 February 2021) paras 2777 and 2779.

[40] Christa Rottensteiner, ‘The denial of humanitarian assistance as a crime under international law’ (1999) No. 835, International Review of the Red Cross (The denial of humanitarian assistance as a crime under international law – ICRC); United Nations Human Rights Office of the High Commissioner on Human Rights

‘Attacks on medical units in Syria may amount to war crimes and crimes against humanity – UN expert warn’ available at https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=20080&LangID=E (Accessed on 16 September 2021); Responsibility to Protect.

[41] 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).

[42]  ICTY (Trial) Prosecutor v Kupreškić et al (14 January 2020) Case No IT-95-16-T para 556 (hereafter Kupreškić Trial Chamber); ICTY (Trial Chamber) Prosecutor v Jadranko Prlić (29 May 2013) Case No. IT-04-74-T para 45 (hereafter Prlić Case); ICTR (Appeals Chamber) Prosecutor v. Augustin Ndindiliyimana, François-Xavier Nzuwonemeye and Innocent Sagahutu (11 February 2014) Case No. ICTR-00-56-A para 260 (hereafter Ndindiliyimana et al); For war crimes: Lubanga Article 74 para 422; Knut Dörmann Elements of War Crimes under the Rome Statute of the International Criminal Court, Sources and Commentary (2003) 377, 378, 397, 400 (hereafter Knut Dörmann Elements of War).

[43] Lubanga Article 74 case para 422; Knut Dörmann Elements of War 377, 378, 397, 400.

[44] Eritrean Forces Massacre Tigray Civilians.

[45] Laetitia Bader ‘Re: Alleged Violations of International Humanitarian and Human Rights Law in Tigray’ available at < file:///C:/Users/Jasper/OneDrive/HRW%20Letter%20to%20Ethiopian%20Authorities%20on%20Tigray%20Conflict.pdf> (accessed on 15 October 2021) (hereafter Human Rights Watch Letter).

[46] Miloševič Case para 53, 57; Galić Case paras. 103, 130, 190.

[47] Miloševič Case para 53, 57. The Fourth Geneva Convention and Additional Protocol II contain similar provisions, see Galić Case para 341 (regarding hospitals losing their protected status).

[48] Rule 3 customary; Miloševič Case para 53, 57; Bemba Case para 78.

[49] Rule 3 customary; Miloševič Case para 53, 57.

[50] See note 126.

[51] Ibid

[52] Rule 3 and 4 customary; Galić case para 191; Miloševič case judgement para 53, 54 and 57; Kordić and Čerkez appeal judgement para 54; Mbarushimana case para 142.

[53] Ibid

[54] Katanga case para 895; Galić case para 191; Rule 15 customary; Miloševič case judgement para 53, 54 and 57; Kordić and Čerkez appeal judgement para 54; ICC Prosecutor v Katanga case (Public Redacted Version Decision on the Confirmation of Charges) (30 September 2008) para 273 (hereafter Katanga Confirmation of Charges); Mbarushimana case para 142.

[55] Rule 3 customary; Galić case para 191; Miloševič case judgement para 53 and 57; Kordić and Čerkez appeal judgement para 54; Mbarushimana case para 142.

[56] Bouché 891, 899 and 900.

[57] See note 126.

[58] Article 8 2 (e) (ii) Rome Statute; Katanga case para 893.

[59] Miloševič case judgement para 53, 54 and 57; Kordić and Čerkez appeal judgement para 54; Mbarushimana case para 142.

[60] Article 8 2 (e) (ii) Rome Statute.

[61] See note 140.

[62] See note 140.

[63] How Does Law Protect- Criminal repression; Bouché pages 891, 899 and 900; Practice relating to Rule 97 customary.

[64] Katanga case para 893; Dario Kordić and Mario Čerkez case para 441.

[65] Ibid

[66] Ibid

[67] How Does Law Protect- Human shields; Practice Relating to Rule 97 customary; Bouché 891, 899 and 900.

[68] Rule 3 customary; See note 140; Mbarushimana case para 142.

[69] Rule 3 and Practice relating to Rule 97 customary; Galić case para 19; See note 140; Bouché 891, 899 and 900.

[70]  Rule 14 and Practice Relating to customary.

[71] Ibid

[72] Katanga case para 1104; Bemba case para 76.

[73] BBC News ‘Evidence suggests Ethiopian military carried out massacre in Tigray – BBC News’ available at <https://www.bbc.com/news/world-africa-56603022> (accessed on 16 September 2019); CNN ‘Two bullets is enough’ Analysis of Tigray massacre video raises questions for Ethiopian Army’ available at <https://edition.cnn.com/2021/04/01/africa/tigray-mahibere-dego-massacre-video-cmd-intl/index.html> (accessed on 16 September 2021).

[74] BBC News ‘Evidence suggests Ethiopian military carried out massacre in Tigray – BBC News’ available at <https://www.bbc.com/news/world-africa-56603022> (accessed on 16 September 2019).

[75] See note 154.

[76] See note 155.

[77] CNN ‘‘Two bullets is enough’ Analysis of Tigray massacre video raises questions for Ethiopian Army’ available at <https://edition.cnn.com/2021/04/01/africa/tigray-mahibere-dego-massacre-video-cmd-intl/index.html> (accessed on 16 September 2021).

[78] BBC News ‘Evidence suggests Ethiopian military carried out massacre in Tigray – BBC News’ available at <https://www.bbc.com/news/world-africa-56603022> (accessed on 16 September 2019) (hereafter BBC Massacre in Tigray); CNN ‘‘Two bullets is enough’ Analysis of Tigray massacre video raises questions for Ethiopian Army’ available at <https://edition.cnn.com/2021/04/01/africa/tigray-mahibere-dego-massacre-video-cmd-intl/index.html> (accessed on 16 September 2021).

[79] Ibid

[80] Ibid

[81] See note 155.

[82] See note 154.

[83] Rule 47 customary; How Does Law Protect-Hors de combat.

[84] Rome Statute Article 7 (1), Article 8 2 (e) (ii); Bemba Case para 78.

[85] Rule 156 customary.

[86] Articles 8 2 (a) (xii), 8 2 (c) (x) and 8 2 (e) (ii) Rome Statute.

[87] Responsibility to Protect; Article 8 2 (e) (i) and 8 2 (c) (i) Rome Statute.

[88] Article 7 (1) Rome Statute.

[89] Rule 90 customary.

[90] VOA ‘Attacks on Eritrean Refugees in Tigray are War Crimes, Watchdog Says ‘available at< https://www.voanews.com/a/attacks-on-eritrean-refugees-in-tigray-are-war-crimes-watchdog-says/6230773.html> (accessed on 18 October 2021).

[91] Ibid

[92]  Galić appeal judgement para 191; Mbarushimana case para 142.

[93] Rule 3, 4 and 47 customary; Galić case para 191; Mbarushimana case para 142.

[94] Ethiopian News Agency ‘UK Newspaper Reveals War Crimes Committed by Terrorist TPLF’  available at <UK Newspaper Reveals War Crimes Committed by Terrorist TPLF (msn.com)> (accessed on 18 October 2021); APA News ‘War crimes committed by rebel TPLF- The Telegraph’ available at <http://apanews.net/en/news/war-crimes-committed-by-rebel-tplf-the-telegraph> (accessed on 18 October 2021).

[95] Ibid

[96] Ibid

[97] Ibid

[98] Rule 10 customary.

[99] APA News ‘War crimes committed by rebel TPLF- The Telegraph’ available at <http://apanews.net/en/news/war-crimes-committed-by-rebel-tplf-the-telegraph> (accessed on 18 October 2021).

[100] Rule 10 customary; Katanga case para 893.

[101] Rule 10 customary; Katanga case para 893.

[102] APA News ‘War crimes committed by rebel TPLF- The Telegraph’ available at <http://apanews.net/en/news/war-crimes-committed-by-rebel-tplf-the-telegraph> (accessed on 18 October 2021).

[103] Africa News ‘Amhara militia take up arms against Tigray rebels’ available at https://www.africanews.com/2021/09/04/amhara-militia-take-up-arms-against-tigray-rebels/  (accessed on 18 October 2021).

[104] Ibid; Rule 3-4 customary.

[105]  Rules 3-4 and 47 customary.

[106] Bouché 891, 899 and 900; Rule 4 customary.

[107] African Commission Resolution; Gov.UK ‘Press release Ethiopia: G7 Foreign Ministers’ statement on Tigray’ available at < Ethiopia: G7 Foreign Ministers’ statement on Tigray – GOV.UK (www.gov.uk) > (accessed on 18 October 2021); Security Council 8812TH Meeting (PM) ‘Consequences of Not Acting Now to End Violence in Ethiopia’s Tigray Region Could Be ‘Disastrous’, Warns Under-Secretary-General, Briefing Security Council’ available at < https://www.un.org/press/en/2021/sc14572.doc.htm> (accessed on 18 October 2021); United Nations ‘Statement of SRSG-SVC Pramila Patten at the Security Council Open Debate on Conflict-Related Sexual Violence’ available at <https://www.un.org/sexualviolenceinconflict/statement/statement-of-srsg-svc-pramila-patten-security-council-open-debate-on-conflict-related-sexual-violence/ > (accessed on 18 October 2021) (hereafter Statement of SRSG-SVC); Amnesty Report; TRT World ‘Eritrean forces and Tigray’s militias committed ‘evident war crimes’ available at < https://www.trtworld.com/magazine/eritrean-forces-and-tigray-s-militias-committed-evident-war-crimes-50027> (accessed on 18 October 2021) (hereafter Commission of war crimes); Omna Tigray ‘Omna Tigray: Leaked Audio Recording of Tigray Meeting on Weaponized SGBV Held by the Ethiopian Country Offices of Various UN Agencies’ available at < https://omnatigray.org/omna-tigray-leaked-audio-recording-of-tigray-meeting-on-weaponized-sgbv-held-by-the-ethiopian-country-offices-of-various-un-agencies/> (accessed on 18 )October 2021) (here after Leaked audio).

[108] African Commission Resolution; Attack on refugees; DW ‘Eritrean, Tigray forces committed ‘war crimes’: Rights watchdog’ available at https://www.dw.com/en/eritrean-tigray-forces-committed-war-crimes-rights-watchdog/a-59197012 (accessed on 18 October 2021); Commission of war crimes; Statement of SRSG-SVC.

[109] Article 7 (1) (H) Rome Statute; See also How Does Law Protect- Criminal repression.

[110] Lubanga Article 74 para 1016.

[111] Ibid

[112] Bemba Case Article 74 para 142; Ntaganda case para 731.

[113] 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) 4, 16, 17, 22, 24 and 31.

[114] The National News ‘Ethiopian soldiers and rebels are committing war crimes against refugees, HRW says’ available at <https://www.thenationalnews.com/world/africa/2021/09/16/ethiopian-soldiers-and-rebels-are-committing-war-crimes-against-refugees-hrw-says/> (accessed on 18 October 2018); Attack on refugees.

[115] Bemba case Article 74 para 100; Ntaganda case para 933; Rule 93 customary.

[116]Ntaganda case para 934; Ongwen case para 2709 and 2710; Rule 93 customary.

[117] For crimes against humanity: Kupreškić trial chamber para 556; Prlić case para 45; Ndindiliyimana et al para 260: For war crimes: Lubanga Article 74 para 422; Knut Dörmann Elements of War 377, 378, 397 and 400.

[118] Amnesty Report 12, 14 and 32.

[119] Ongwen case para 2715; Rule 94 customary.

[120] Ongwen case para 2712; Rule 94 customary.

[121] Article 8 (2) (e) (vi) and 8 Article 8 2 (c), Article 8 2 (e) (ii) Rome Statute; Ongwen case para 2712; Rule 93 customary.

[122] See note 198.

[123] See note 202.

[124] Amnesty Report 6, 12, 16 and 33.

[125] Amnesty Report 32 and 33.

[126] ICTY (Trial Chamber) Prosecutor V Kunarac et al (22 February 2001) Case No: IT-96-23-T& IT-96-23/1-T para 557.

[127] The ICC has different requirements for torture depending on if it is torture as a war crime or crimes against humanity. In terms of customary international law, there is no such differentiation, See Ongwen case para 2703. The paper uses the definition of torture under customary international law, which does not differentiate the elements of crime of torture by virtue of whether the torture is a war crime or crime against humanity, as mentioned earlier Ethiopia is not a party to the Rome Statute. See ICTY (Appeals Chamber) Prosecutor v Haradinaj (19 July 2020) Case No IT-04-84-A para 290; Kunarac case paras 142-148; Semanza case para 248.

[128] Kunarac case para 98; Blaškić case para 153; ICTY (Appeals chamber) Prosecutor v Furundžija (21 January 2000) Case No (IT-95-17/1) para 111; Rule 93 customary; Semanza case para 248; Bemba case paras 209 and 293. The definition of the element of torture used is the customary international law one and not as defined by the ICC. Ethiopia is not a signatory to the Rome statute of the ICC thus the need to use torture as defined under customary international law: for the requirements under the Rome Statute See Ongwen case paras 2703 and 2704.

[129] Amnesty Report 6 and 12.

[129] Kunarac appeal para 153; ICTY (Trial Chamber) Prosecutor V Kunarac et al (22 February 2001) Case No: IT-96-23-T& IT-96-23/1-T paras 669 and 686.

[130] Amnesty Report 12.

[131] See note 202.

[132] Amnesty Report 33.

[133] Ongwen case para 2633.

[134] Ibid;The Rome Statute in terms of Article 7 (H) (in the relevant part) provides that persecution occurs when there is discrimination “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 […]). It is said this article has an expanded list of grounds with respect to which discrimination can occur.

[135] See note 213.

[136] Rule 93 customary.

[137] See note 202.

[138] 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).

[139] Article 3 (H) and 5 (H) ICTY Statute; United Nations ‘Charter of the International Military Tribunal – Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis (“London Agreement”) 8 August 1945’ available at: <https://www.refworld.org/docid/3ae6b39614.html> (accessed 15 September 2021)Article 6 (C); Kupreškić trial chamber para 580; UN Security Council ‘Statute of the Special Court for Sierra Leone’ 16 January 2002, available at <https://www.refworld.org/docid/3dda29f94.html> Article 2 (h) (accessed 15 September 2021).

[140] Risks to Civilians Persist.

Allegations of the Commission of War Crimes and Crime Against Humanity in Tigray, Ethiopia (Section A)

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).

EVENING THE HAVES AND HAVE NOTS: AN IHL CASE FOR COMPLETE DISARMAMENT OF NUCLEAR WEAPONS

By Jemimah Jehopio

Hiroshima and Nagasaki need no introduction – there is an almost immediate and synonymous association of these cities with the use and catastrophic effects of nuclear weapons. This association is not misplaced as these cities remain the first and last to experience the use of nuclear weapons in a war.[1] Notwithstanding the timeless reminder of the calamitous effect of nuclear weapons, almost 13,000 nuclear weapons are in existence today with several kept in “hair trigger” alert status meaning they are ready to be launched within minutes.[2]

Despite a comprehensive set of prohibitions on States participating in any nuclear weapons activities set out by the Treaty on the Prohibition of Nuclear Weapons (“the TPNW”), the TPNW has not been universally accepted and since it entered into force more than two years ago, there has not been significant progress by nuclear-armed states towards disarmament.[3] It is thus justified to make a case for complete disarmament of nuclear weapons, not from a state-oriented perspective, but from a humanitarian focus point.[4] The TPNW in its Preamble explicitly recognises that any use of nuclear weapons would be contrary to the rules of international law applicable in armed conflict, that is, International Humanitarian Law (“IHL”).[5] The applicable rules are those on distinction, proportionality and precaution.This article, in making an IHL case for the complete disarmament of nuclear weapons, does so  on the basis of these three rules.

The principle of distinction is the cornerstone of IHL,  which aims to protect    the civilian population from the effects of hostilities .[6] It prohibits the use of weapons that are incapable of discriminating in their effects between military and civilian targets, either because they cannot be directed at a specific military objective, or because their effects cannot be limited as required by IHL.[7] A nuclear detonation releases a combination of powerful blast waves, intense heat between 60 – 100 million degrees centigrade, and high levels of ionised radiation, typically dispersed over a wide area.[8] The heat produced by the explosion is expected to start uncontrollable large-scale fires and firestorms.[9] The effects are aggravated by wind and other weather phenomena which carry the nuclear fallout far beyond the target area, even across national and continental borders.[10] It thus becomes apparent that even if a nuclear weapon were aimed at a specific military objective, it would not be possible to control and limit the force and effects of the nuclear detonation; military targets, civilians, and civilian objects would be struck without distinction. The International Court of Justice, put this succinctly in its 1996 advisory opinion, noting that the destructive power of nuclear weapons cannot be contained in either space or time and that the use of such weapons seems scarcely reconcilable with respect  for the requirements of the law applicable in armed conflict.[11]

The second rule of proportionality prohibits the use of weapons which are likely to cause incidental civilian losses that would be excessive   in relation to the anticipated concrete and direct military advantage.[12] A nuclear explosion results in a powerful blast wave, intense thermal heat, and radiation which cause severe, extensive, immediate and long-term incidental civilian casualties, including illnesses and cancers, as well as harm to vital civilian infrastructure.[13] The resultant disruption of services crucial to the survival of the civilian population, such as healthcare, water and power supply results in further deaths, injuries and suffering.[14] Imagine for a moment any concrete and direct military advantage that could justify “incidental” direct and indirect civilian harm and destruction on such a colossal scale as that caused by a nuclear explosion. It is extremely difficult to imagine such an advantage. Moreover, as the International Committee of the Red Cross (“the ICRC”) has often stated, the overarching aim of winning a war does not qualify as a concrete and direct military advantage to comply with the principle of proportionality.[15]

This closely relates to and ushers into discussion the third and final rule – precaution. This rule requires that in the conduct of military operations, constant care must be taken to spare the civilian population and civilian objects.[16] It requires that weapons used must avoid, or at least keep to a minimum the incidental harm to the civilians and civilian property and that the damage caused must not be excessive in relation to the concrete and direct military advantage anticipated.[17] On account of the indiscriminate and uncontrollable effects of a nuclear explosion, it becomes difficult to fathom how any military advantage could ever outweigh the incidental civilian harm, and offset the vast humanitarian concerns. Resultantly, the grave concerns about the compatibility of nuclear weapons usage with the rule of precaution are validated.

In conclusion, it is abundantly clear the threat nuclear weapons pose  to human existence – irreversible harm, untold human suffering, and damage to future generations. The growing disapproval of nuclear weapons by the international community notwithstanding, nuclear-armed states increasingly threaten the use of nuclear weapons. The longevity of humankind demands that we move past the debate on who can or cannot possess nuclear weapons; the ultimate aim should be complete disarmament. Quoting former United Nations Secretary- General Ban Ki-moon, there are no right hands for wrong weapons. The nuclear legacy of Hiroshima and Nagasaki must end with them. 

Jemimah Jehopio is a Ugandan trained lawyer who is currently pursuing the Bar course at the Law Development Centre, Kampala. She is the winner of the 18th edition of the ICRC writing competition for East African Universities. Jemimah also attended the 24th Course on International Humanitarian Law for Humanitarian Professionals and Policy Makers organised by the ICRC.

References

Council of Delegates of the International Red Cross and Red Crescent Movement, ‘Working towards the elimination of Nuclear Weapons: 2022-2027 Action Plan’ (2022) CD/22/8 <https://rcrcconference.org/app/uploads/2022/05/08_CoD22-Nuclear-Weapons-Background-document-FINAL-EN.pdf>  accessed 21 February 2023.

International Committee of the Red Cross, ‘ICRC’s Legal and Policy Position on Nuclear Weapons’ (2022) 104 International Review of the Red Cross 1477.

International Court of Justice, ‘Advisory Opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict’ (1996).

International Law and Policy Institute, ‘Nuclear Weapons under International Law: An Overview’ (2014) <https://www.geneva-academy.ch/joomlatools-files/docman-files/Nuclear%20Weapons%20Under%20International%20Law.pdf> accessed 21 February 2023.

Julia Kapelańska-pręgowska, ‘Freedom From Nuclear Weapons? IHRL and IHL Perspective vs The State-Centred Approach’ (2020) The Age of Human Rights Journal 137.

Nils Melzer, International Humanitarian Law: A Comprehensive Introduction (International Committee of the Red Cross 2016).

Protocol Additional to the Geneva Conventions of 13 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3.

The Treaty on the Non-Proliferation of Nuclear Weapons (adopted 1 July 1968, entered into force 5 March 1970) 21 UST 483, 729 UNTS 161.

The Treaty on the Prohibition of Nuclear Weapons (adopted 7 July 2017, entered into force 22 January 2021) 729 UNTS 161.


[1] Council of Delegates of the International Red Cross and Red Crescent Movement, ‘Working towards the elimination of Nuclear Weapons: 2022-2027 Action Plan’ (2022) CD/22/8 <https://rcrcconference.org/app/uploads/2022/05/08_CoD22-Nuclear-Weapons-Background-document-FINAL-EN.pdf>  accessed 21 February 2023.

[2] ibid.

[3] Julia Kapelańska-pręgowska, ‘Freedom From Nuclear Weapons? IHRL and IHL Perspective vs The State-Centred Approach’ (2020) The Age of Human Rights Journal 137.

[4] ibid.

[5] The Treaty on the Prohibition of Nuclear Weapons (adopted 7 July 2017, entered into force 22 January 2021) 729 UNTS 161.

[6] Nils Melzer, International Humanitarian Law: A Comprehensive Introduction (International Committee of the Red Cross 2016) 18.

[7] Protocol Additional to the Geneva Conventions of 13 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 Art. 51(4) (hereafter AP. 1).

[8] International Committee of the Red Cross, ‘ICRC’s Legal and Policy Position on Nuclear Weapons’ (2022) 104 International Review of the Red Cross 1477, 1493; International Law and Policy Institute, ‘Nuclear Weapons under International Law: An Overview’ (2014) <https://www.geneva-academy.ch/joomlatools-files/docman-files/Nuclear%20Weapons%20Under%20International%20Law.pdf> accessed 21 February 2023.

[9] ibid.

[10] ibid.

[11] International Court of Justice, ‘Advisory Opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict’ (1996).

[12] AP. 1 Art 51(5)(b); Nils (n 6) 101.

[13] International Committee of the Red Cross (n 8) 1494.

[14] ibid.

[15] ibid.

[16] AP. 1 Art. 57; Nils (n 6) 102.

[17] ibid.

THE USE OF BIOLOGICAL WEAPONS IN WARFARE


By Joan Amito

Biological warfare was potentially a most frightening method of armed conflict[1]. The world has an obligation to determine the impact of the use of weapons of mass destruction on the future of warfare. Biological weapons, when produced and deliberately released to the environment, are characterised by their ability to disseminate disease-causing organisms to harm or kill humans, plants, and animals. The use of biological weapons is synonymous with armed conflict, terrorism and political assassinations where there is a sole objective to kill and introduce illness that should cause fear and mistrust in the public.[2] Biological weapons in an armed conflict have the potential to cause massive death, imminent fear, unnecessary suffering, and superfluous injury to non-combatants in the event of a war.

From the inception of the Covid-19 epidemic, WHO registered over 659 million confirmed cases of the virus and 6.6 million deaths.[3] In as much as we think of the Covid-19 insurgence as only a pandemic, we need to observe the danger with which this bacterial agent, capable of being used as a biological weapon, had caused. The use of a biological weapon can result into a pandemic that will cause massive disruption in any society[4].

Biological agents used to make biological weapons such as bacteria, fungi and dangerous toxins are by nature adapted to  multiply and reproduce themselves as fast as possible. This means that there is an extremely great risk of death. Viruses such as the SARS-Cov attaches itself to the respiratory system making it hard for one to breath; this has great effect to vital body organs such as the lungs and the heart without which, the human body cannot function effectively[5]. Biological agents such as the EBOLA virus whose case fatality rate is between 25-90% are known to kill human beings within 2-3 days of infection[6].

The use of biological weapons poses a very high threat to human life and causes terrible casualties when used against the vulnerable civilian population. It accomplishes rapid spread of disease over a wide area and big population. The ability to control these weapons when used, will always be uncertain and indiscriminate. They are a threat to all human beings everywhere.

Biological weapons do not have the ability of differentiating between a combatant and civilian during warfare. They do not have the capacity to selectively target a military object rather than a civilian population because they are  prepared to weaken and kill any human being without the prospect of distinction. As such, the international humanitarian law principles of distinction, humanity, and military necessity are undermined.

Article 48 and 51(4) of Additional Protocol 1 to the 1949 Geneva Conventions expressly emphasise the need to distinguish between the civilian population and combatants during armed conflict. It prohibits attacks that employ a method of combat which cannot be directed at a specific military objective. Indiscriminate attacks are of a nature that strikes military objectives and civilians or civilian objects without distinction.

The International Committee of the Red Cross (ICRC) holds the position that the use of biological weapons had been banned after the first World War.[7] However, the ICRC is concerned that the use of biotechnology could catalyse the deliberate spread and the creation of novel biological warfare agents for use, in conjunction with corresponding vaccines for one’s own troops or population[8].

I believe all stakeholders should join in the agenda to promote mutual understanding and effective action, international coordination through the improvement of  national capabilities for disease surveillance, detection and diagnosis, and good public health systems. The complete ban on the use, stockpiling and production of biological weapons can only be achieved when the Biological Weapons Convention acquires international customary law status, binding on all states whether they are party to the convention or not. State parties with reservations to the Convention should be encouraged to withdraw them. Then and only then, shall we achieve the objective of a complete prohibition on the use of any form of biological weapon.

We can never overlook the ability of a biological weapon in causing mass destruction not only to combatants but to civilians and those protected by humanitarian law at any given time. We need to be promptly vigilant of the effects of the use of biological weapons in warfare; therein shall we be awakened to the great risk that it poses to every human being everywhere. Interest in the international health and security of all persons needs to be rekindled, for we can never be too careful when it comes to taking measures to prevent the use of biological weapons anywhere. Biological warfare will always be a frightening method of armed conflict.


[1] Statement made by David Ennals, British Minister of State for Foreign and Commonwealth affairs at the London Ceremony of the entry into force of the Biological Weapons Convention. https://www.un.org/disarmament/biological-weapons/about/history/ accessed on 29th January 2023.

[2] United Nations. Biological Weapons, https://www.un.org/disarmament/biological-weapons/about/what-are-biological-weapons/ accessed on 29th January 2023.

[3] WHO Coronavirus (COVID-19) Dashboard, https://covid19.who.int/ accessed on 30th January 2023.

[4] Guillouet-Lamy O. COVID-19, a Biological Weapon? A guide to Biological Weapons to Answer that Question. NCT Magazine, https://nct-magazine.com/nct-magazine-may-2020/covid-19-a-biological-weapon-a-guide-to-biological-weapons-to-answer-that-question/ accessed on 29th December 2023.

[5] Bruce Goldman, The Invader: How the new CoronaVirus penetrates, exploits and kills cells, https://stanmed.stanford.edu/how-coronavirus-destroys-cells-treatments/ accessed on the 30th January 2023.

[6] WHO, Ebola virus disease, https://www.who.int/news-room/fact-sheets/detail/ebola-virus-disease accessed on the 30th January 2023.

[7] ICRC. Chemical and Biological Weapons, https://www.icrc.org/en/document/chemical-biological-weapons accessed on the 29th of December 2023.

[8] ICRC, Biotechnology, Weapons and Humanity. https://casebook.icrc.org/case-study/icrc-biotechnology-weapons-and-humanity accessed on the 4th of January 2023.

UN Image

Protection of Children in an Armed Conflict

By Munezero Grace

According to the Convention on the Rights of the child 1989, Article 1[1] defines a child to mean every human being below the age of eighteen years, under the law applicable to the child, majority is attained earlier.

It is unequivocal that children are part of the vulnerable group during an armed conflict. This is so because children have interests and rights that must be protected in a community. Looking at the case of Prosecutor V Moinina Fofana and Allieu Kondewa[2], it spells out some of the rights and interests of children that must be protected. The ICJ stated that the children soldiers are deprived of a family, education and all advantages that would otherwise help them prepare for adulthood and in the end they will suffer trauma. It is to note that such protection given to children was widely practiced in the African Countries. For instance, among the Fulani tribe in South Sudan, it was believed that attacking children would bring shame to the tribe. Rule 135 [3]of the CIHL provides that children affected by armed conflict are entitled to special respect and protect.

Protections given to children in an armed conflict include; protection of their education, culture, traditions and their nationality. According to Dennis Plattner in her paper, “Protection of Children in International Humanitarian Law,” explains that even such protection ought to be take place with no legal basis.

We see that the 4th Geneva convention of 1949 provides for the general protections of children in an armed conflict whereas Additional protocol I and II to the Geneva Conventions narrows down and specifies the protection of children in an armed conflict. Article 50(1) GC IV provides that the occupying power shall, with the co-operation of the national and local authorities, facilitate the proper working of all institutions devoted to the care and care of children. Article 94(2) provides that all possible facilities shall be granted to internees to continue their studies or to take up new subjects the education of children and young people shall be ensured; they shall be allowed to attend schools either within the place of internment or outside. The above can also be reflected under Article 4(3) of AP II, which contains an obligation to the high contracting parties to provide education including religious and moral education.

Focusing on the case study of the Syrian Conflict of 2011[4], the suppression of peaceful demonstrations led to the loss hundreds of thousands of civilians including children. It was indicated that 1356 school were targeted and therefore schools in Syria could not function as a protective learning environment because the education had been under deliberate attacks which worsened the situation of Syrian education during the conflict.

It was found that the Syrian regime and its allies had committed indiscriminate attacks on schools, students and teachers, in addition to the use of schools for military purpose as well as the recruitment of children without any respect to International Humanitarian Law.

It is to that children during the Second World War, children were taken away from their mothers to be provided with other parents and given another nationality. Therefore there developed an urge to protect the nationality of these children. Looking at Article 50(2) of GC IV, it provides that the occupying power shall take all necessary steps to facilitate the identification of children and registration of their parentage.

International Humanitarian Law prohibits the recruitment of child soldiers into armed groups not until they have attained a majority age. Therefore this rests an obligation on the parties to the conflict to take all feasible measures in order that children who have not attained the age of 15 years do not take part in direct hostilities as well as recruiting them into their armed forces. This is affirmed under Article 77(2) of AP I to the Geneva Convention. In Prosecutor v Moinina Fofana and Allieu kondewa, Fofana and Allieu[5] were convicted of enlisting children under the age of 15 years into armed forces or groups using them to participate in hostilities.

However, the law on the protection of children in an armed conflict is inadequate. This poses a question, why such law is inadequate putting in consideration the aspect of vulnerability. In my perspective, such law is inadequate simply because there has not been any enforceability of the law on the protection of children. It is witnessed more often in Non- International armed conflicts. For instance, the Lords Resistance Movement (LRA) is known for its widespread conscription of children. These children are indoctrinated with different ideologies. How is this done? Children are promised material gains such as rewards, giving them food   At times we see that these children consent to joining these armed groups for survival as well as their safety during the armed conflicts. In as much as the Law on the protection of children during an armed conflict has proved to be inadequate, looking at the brighter side of recruitment of children in armed groups, it is considered as an achievement following the expansion of these armed groups as well as their activities.      In an armed conflict, the recruitment of child soldiers in armed forces deprives children of protections offered by International Humanitarian Law. Therefore, the protection of children’s interests, such as education, nationality must be given consideration simply because when such interests are ignored, it results in destructive and violent growth trends among children.


[1] The Convention on the Rights of the Child 1989.

[2] (Appeal Judgment), SCSL-04-14-A, Special Court for Sierra Leone, 28 May 2008, para 22.

[3] Customary International Humanitarian Law.

[4] The armed conflict in Syria, 2011.

[5] (Appeal Judgment), SCSL-04-14-A, Special Court for Sierra Leone, 28 May 2008, para 15.

International Criminal Tribunal for Rwanda: The Spotlight: Analyzing the Limitations, Shortcomings and Legacy

Daniel Lubowa

INTRODUCTION:

Factors that led the ICTR’s Inception: Background Scenario

 On 1st October 1990, Rwandese who had lived as refugees throughout East and central Africa since1959, when a Hutu revolution overthrew the then ruling appointed Tutsi monarchy, attacked their motherland, to return home after having tried unsuccessfully for some time to convince President JuvenalHabyarimana’s regime to allow them to return home peacefully. The war that followed hit a climax on 6th April 1994,[Gerald Prunier,1994]when President Juvenal Habyarimana’s plane was shot down as it  landed in Rwanda, and he was instantly killed[together with his Burundian counterpart, President Cyprien Ntarymira  and several of their officers].Within hours of the announcement of the President’s death, roadblocks had been set up all over Rwanda, the hunting and slaughter that was to last three months and cause deaths of between five hundred thousand  to eight hundred thousand people had  started. The genocide ended only when the Rwandese Patriotic Front [RPF] resumed war and captured Kigali on 4th July 1994.By the time the civil war and genocide ended on 19th July 1994, over eight hundred thousand Rwandans had been killed[Michael P. Scharf  2018].

      When the killings ended, it was clear that something had to be done.  In an effort to punish those responsible for the genocide, the United Nations [UN] established the International Criminal tribunal for Rwanda [ICTR] to try all those responsible for genocide and other such violations committed in the neighboring states, between 1st January 1994 and December 1994.

THE ICTR: IT’S INITIAL INCEPTION: THE PROCESS

 In May 1994, the United Nations Commission for Human Rights [UNCHR] met in a special session and named a special rapporteur to investigate the situation in Rwanda and instructed the High Commissioner for Human Rights [HCHR] to establish a field presence in Rwanda [Todd Howland,1998,p.106].The Rwandan Government also requested the UN Secretary General to form a tribunal to try the perpetrators of the genocide. Later, in response, the Security Council[SC] adopted the Secretary General’s report and a draft Statute for the tribunal without amendment under Security Council Resolution[SCR] 955[1994] was adopted, thereby leading to the establishment of the ICTR in Arusha, Tanzania.

THE INITIAL COMPOSITION AND STRUCTURE OF THE ICTR

The ICTR was governed by its Statute, which is annexed to SCR955[1994] consisting of three major organs; the Chambers- three trial chambers, Office of the Prosecutor and the Registry. Each of the trial chambers was composed of three judges, while the Appeals chamber had five judges, who had to be from different states[ICTR Statute, Art 11].

THE ICTR: IT’S INITIAL JURISDICTION

 Under Article 1 of the ICTR Statute, the tribunal had power to prosecute persons responsible for serious violations of International Humanitarian Law[IHL] committed in the territory of Rwanda or of neighboring states by Rwandese citizens between 1st January and 31st December 1994[Para 1,Res, 955]. The ratione materiae jurisdiction of the tribunal was the prosecution of persons charged with genocide, crimes against humanity and serious violations of Article 3 common to the Geneva Conventions of August 1949, for the prosecution of victims of war, and of Additional Protocol II, thereto of June 1977.

SOME FACTORS THAT LIMITED OPERATIONS OF THE ICTR

This part of the article looks at several serious limitations that faced the ICTR   which suffocated its success during its operations. These included; limitations in the ICTR Statute, limited international co-operation and support especially from very relevant states, technical limitations like administrative hardships and limited harmony with the Rwandese Genocide laws and trials, shortcomings of the ICTR. Each of these limitations is discussed hereunder.

Limitations in the ICTR Statute

Despite the ICTR Statute having very commendable provisions like Articles 2-4, on the subject matter of jurisdiction, and Article 28 which compelled the International community to cooperate, the Statute has limitations which affected the success of the ICTR in its operations. The statute for instance has provisions such as 1 and 7 which limited the temporal jurisdiction of the tribunal to only 1994.This limitation left some genocide cases uncovered, for it is seen, that the genocide began way before 1994, and even went on thereafter. The provisions especially undermined the tribunal’s capacity to address the offences of conspiracy and incitement to commit genocide, which in turn undermined reconciliation as the victims were seen not to get proper justice.

Limited International Support and Co-operation

The ICTR during its tenure, entirely depended on global support and co-operation for everything; funds, personnel, equipment, and above all, apprehension of the suspects. Antonio Cassese explained this better

 Our tribunal is like a giant who has no arms and legs. To walk, he needs artificial limbs. These artificial limbs are the state authorities, without their help, the tribunal cannot operate [ ICTFY-Lawyers’ Committee for Human Rights.[1997] ‘Prosecuting Genocide in Rwanda :The ICTR and National Trials’330 USA, p. 25].

The SC was well aware of this, and therefore heavily provided for state co-operation [Resolution 955, Paragraph 2,Art 28]. The tribunal however, right from its creation faced various serious problems with states. Although a lot of improvement was made, serious problems still remained.

ICTR Poor Relations with Rwanda

Rwanda pledged to work with the tribunal, despite opposing its creation [Alison Des Forges, 1999,p.739].However, the relationship between the two entities remained poor, especially given the fact that, on top of fresh disagreements the original causes of the misunderstandings still remained[The Sentence of Obed Ruzindana to 25 years Instead of Life Imprisonmet,’Rwanda Attractss Light  Genocide   Sentence’, The New Vision, Kampala, 25th May 1999 p, 9]. The disagreement between the tribunal and the Rwandan government stemmed from three objections expressed by Rwanda to some of the proposed provisions of the ICTR Statute[Paul J. Magnella 1997, p.121].First the Rwandese Government wanted the maximum punishment for convicts to be death and not the life imprisonment that was proposed; Secondly, the Government also wanted the temporal jurisdiction of the tribunal to go back up to 1990 instead of the proposed year of 1994 alone, to cover earlier crimes especially since it had been agreed that the genocide was masterminded before 1994; thirdly the Government wanted the tribunal to be based in Kigali so as to be appreciated by the Rwandese population, but the Security Council objected to all Rwanda’s proposals. This was however indeed a very bad start for the ICTR, and the poor /frosty relationship between the two parties still existed up to the time of the ICTR’s closure, in December 2015.

Political Influence by some States

Whereas some states were not so co-operative with the ICTR, others exerted political influence on it. It has already been seen that the tribunal was organized according to the wishes of powerful countries like the United States and France, with Rwanda, the concerned party being largely ignored. Unfortunately it looks as if some of these influential states still meddled with the tribunal. For instance back in the day, the Press hinted that, the said dropping of a case against a former Army officer, was a botched attempt to have him extradited to Belgium to face charges for the murder of ten Belgian UN paratroopers[‘Belgium Blasts Tribunal’,The New Vision, Kampala 1st April 1999,p.12].This can be seen to be a very unfortunate state of affairs. Meddling with the formation of a court is bad enough, but meddling with its independence is a sure way of suffocating justice. No Court can certainly function as a justice entity under such influence.

Technical Limitations and shortcomings

The tribunal began with very serious internal problems. First of all, it was financially strapped; lacking basing equipment like telephones, lacked qualified staff, and was rocked with mis-management, nepotism and corruption [Lawyers’ Committee for Human Rights, supra p.39-40] There was a lot of improvement, since,[Alison Des Forges supra p.741],but serious problems still existed; secondly, the distance and division of personnel between Kigali, Arusha and the Hague complicated and slowed communication amongst staff. [Alison Des Forges supra p.740].This in turn slowed down the tribunal’s work, which was one of its most serious shortcomings. Also, a substantial number of positions including senior prosecutorial ones were unfilled for a very long time, which also contributed to the slow speed of the tribunal [Alison Des Forges,1999,p.742].Similarly, potential witnesses for both the prosecution and defence were unwilling to testify, either due to fear of reprisals for those in Rwanda, or lack of valid travel documents for those in exile. This especially affected the defendants, whereby some of them failed to come up with even a single witness [Lawyers’ Committee  for Human rights, supra,p. 36].This did not only undermine proper justice, but never allowed the ICTR to expose the full truth about what really happened, something that was a cornerstone to reconciliation

ICTR LEGACY

 In the months following the 1994 genocide in Rwanda, the UN Security Council established the ICTR. Just before the tribunal’s halting of operations in December 2015, it delivered its Forty Fifth and final judgment-an appeal ruling against six convictions. The tribunal was not the only body set up to judge those responsible for perhaps eight hundred thousand deaths in a hundred days of killing, but it became the first international court to pass a judgment on genocide [Alastair Leithead’ BBC, 2022]. The tribunal was initially a tiny organization, underfunded, and initially permitted only one small court room and two trial chambers to address possible crimes involving the murder of hundreds of thousands. The first hearing of the tribunal, presided over by Senegalese Judge Laity Kama, took place in a small room with a leaky ceiling with’ a couple of tables, a few dozen chairs, one or two interpreters, and a squad of security guards’. The ICTR also suffered from allegations of corruption and several forcing prominent staff to resign in 1996. It took another five years for the tribunal to really find its footing. This  inauspicious beginning  notwithstanding, slowly but surely  made the ICTR begin  to establish itself as a functioning, important and indeed vital institution, growing to peak capacity with more than a thousand staff members, four modern courtrooms, and an annual budget of US 140 million.

The ICTR created jurisprudence that both transformed international law and directly affected state behavior paving way for the establishment of the International Criminal Court [ICC] a permanent court that has since succeeded it. Although the ICTR continued to experience growing pains during the period from 1995-98 when the Rome Statute was being negotiated, its establishment, the enthusiasm of international lawyers and Non  Governmental Organizations[NGOs] for their operations, and their ability to overcome both technical and practical difficulties proved that international justice could be successfully undertaken.

CONCLUSION

 The ICTR had a profound short-and medium-term effect locally, regionally and internationally. This effect was felt in local, regional and international politics, it flowed through the thousands of people whose lives were touched by the work done by the tribunal, and it resulted in the establishment of new institutions of international criminal justice that have since succeeded the ICTR. Indeed, the establishment of a global tribunal to try the perpetrators of the Rwandese atrocities is indeed commendable. But the suffocating   limitations, shortcomings  evolving around the ICTR,  strongly hindered its chances of success in the sense that the ICTR was entirely not  able to reconcile the Rwandese or to protect international peace and security, therefore some of  the challenges  that faced the ICTR still remained even after its closure. In the long or even short run, the legacy of the ICTR lay in the way it dealt with the challenges it faced while still operational, and the future of mankind on the other hand entirely lies in a strong and effective international legal system.


[1]Daniel Lubowa,LLB [Makerere University, Kampala Uganda], LLM [St. Augustine University of Tanzania, Mwanza,Tanzania], He is a Lecturer of International Law at St. Augustine University of  Tanzania and a Ph D in Law Candidate at   the Open  University of Tanzania, Dar es Salaam, Tanzania.

The Impediments Facing ICRC in The Implementation And Enforcement of International Humanitarian Law In some Selected Conflict Zones On The African Continent

Daniel Lubowa[1]

Introduction

Just before the mid Nineteenth Century, there were no organized and well established army nursing systems for causalities and no safe and protected institutions to accommodate and treat those who were wounded on the battlefield[Bullough, Vern L and Bonnie Bullough’2nd edn,1972].In June 1859, a Swiss businessman, Henry Dunant who had travelled to Italy on a business venture, witnessed the ‘Battle of Solferino’, an engagement in the Franco-Austrian war, shocked by the terrible aftermath of the battle, he advocated for the formation of a national voluntary relief organization to help wounded soldiers in case of war. It was against this background that the International Committee of the Red Cross [ICRC] was founded, bringing on board, a new era only which set out to civilize war, thus establishing rules designed to protect,  potential victims of armed conflict.

 The ICRC is the only institution explicitly named under international humanitarian law [IHL] as a controlling authority. The two entities have significant roles in war situations. The ICRC gives relief to the war victims while IHL establishes various forms of protection of all war participants. However, in war situations, the ICRC has faced or continues to face a number of challenges such as lack of cooperation from Governments where they are working, death of ICRC staff at battle fronts, being understaffed etc. It is some of these challenges which render the ICRC ineffective in its role of promoting and implementing IHL, despite the comprehensive legal regime in place governing armed conflicts. The current article briefly highlights some of the challenges facing ICRC in promoting IHL particularly focusing on some African conflict zones as case studies.

ICRC and IHL: Their Genesis, Evolution and Contact Points

 At first, there were unwritten rules based on customs that regulated armed conflicts. Then came bilateral treaties drafted in varying degrees in detail gradually coming into force. The belligerents sometimes ratified them after the war was over [ICRC 2nd ed, 2004 p.8].The ICRC and the codification of IHLhave evolved from the notion that the individual is entitled to certain minimum rights in situations of armed conflict. The founding of the ICRC and starting point of IHL came about when Henry Dunant, a Swiss business man and Guillaume Henri Dufour, a Swiss Army General of great renown formulated the idea in ‘A Memory of Solferino ‘published in 1862 following the battle of Solferino witnessed by Dunant in Italy. On the strength of his own experience of war, General Dufour lost no time in lending his active moral support, notably by chairing the 1864 Diplomatic conference in Geneva. The Swiss Government at the prompting of the founding members of the ICRC, convened the 1864 Diplomatic conference which was attended by sixteen states who adopted the Geneva Convention for the amelioration of the condition of the wounded in armies in the field, thus, this whole process giving birth to the ICRC and IHL as we know them today.

ICRC and IHL: Mission

 The ICRC is an impartial, neutral and independent organization whose exclusively humanitarian mission is to protect the lives and dignity of victims of war and internal violence providing them with assistance. It directs and coordinates the international relief activities conducted by the Movement in situations of conflict, endeavoring to prevent suffering by promoting and strengthening humanitarian law and universal humanitarian principles. Though the ICRC tries to live up to its mission, during conflict situations, in very many times, the ICRC has been let down, in the sense that it is unable to fulfill its principle objectives, due to the dangerous environment in which it continuously operates in[Pierre Hazan and Jean  Francois Berger,2004].

IHL: Legal Controls of the ICRC

The ICRC operations are generally based on IHL, the four Geneva Conventions of 1949, their three Additional Protocols of 1977,2005, the Statutes of ICRC and the Red Crescent Movement and the resolutions of the International conferences of the Red Cross and Red Crescent[ICRC’2nd ed,2004,p.2].All these articles and laws together form the mandate given to the ICRC by the International community, i.e. by global States.

ICRC Operational Challenges in Some Key Conflict Zones in Africa

The ICRC maintains a strong operational presence on the African continent, with activities focused on protecting and assisting people affected by armed conflict or other forms of violence. Working closely with the national Red Cross and Red Crescent societies throughout the continent it promotes a greater recognition and wider implementation of IHL.Though this is the case, the ICRC faces numerous operational challenges in its work in some conflict zones as illustrated below:

Eastern Congo:

 In Congo, after almost two decades of intermittent armed conflict and festering insecurity, vast numbers of people have died, mostly from disease and malnutrition, and countless have been displaced. Dozens of humanitarian organizations such as the ICRC have been deployed continuously since even before the first major armed conflict in 1996, struggling to respond to the most urgent needs of the population [Al Jazeera, 14th January 2013, Para IV]. With the sheer complexity and intractability of the crisis, eastern Congo is increasingly at the epicenter of professional challenges confronted by the humanitarian community. How to engage with dozens of continuously mutating armed groups to ensure at least a minimum of access and protection of the civilian population against the most egregious attacks is one such challenge. Reaching populations in need when swathes of the vast country are inaccessible by road is another. So too is ensuring the safety and security of humanitarian workers operating in such a difficult environment [ICRC Case book 2022].

Somalia:

Two decades of armed conflict have had a heavy toll on Somalis in and outside of Mogadishu. Fighting has destroyed essential infrastructure, including hospitals, all over the country. Access to proper health care is precarious, at best [Guha-Sapir D. Ratnayake R 2022]. Somalia’s hard lined-Islamist al-Shabaab rebels say they ordered ICRC out of areas the group controls in the South and central parts of the country [ICRC 2022]. The al-Qaeda linked al-Shabaab kicked the ICRC out of areas under their control because it had falsely accused the Islamist group of hindering food distribution. They also claimed that the ICRC was distributing food to the local population that was past its expiry date.

South Sudan:

The South Sudanese conflict is a conflict between Government and opposition forces in South Sudan that started in December 2013.The Fourth year of Sudan’s civil war saw a severe deterioration of humanitarian conditions across the country. The Conflict has since claimed innumerable lives and left millions forcibly displaced from their homes and unable to meet even their most basic needs. The ICRC continued to work on the frontlines of the crisis throughout 2017, providing life saving assistance to the most vulnerable. In September 2017, the ICRC suffered the tragic loss of one of its staff, Lukudu Kennedy Emmanuel Laki, a driver who was shot and killed while helping to deliver aid to the victims of the conflict in Western Equatorial. Consequently, the ICRC immediately suspended most of its activities in the region and resumed a month later after receiving security reassurances from the concerned parties. Kennedy had been the first ICRC staffmember to lose his life in a violent attack since the beginning of the South Sudan conflict in December 2013[ICRC, 2022].

ICRC and the Implementation of IHL in Some Conflict zones in Africa: The Setbacks: A Discussion

Lack of Access to War Victims by ICRC

The ICRC’s important operational challenge is the inability to ensure access to victims of armed conflict and other situations of violence. Most of the time, ICRC in conflict a situation is unable to access war victims, understand their situation and addresses their needs. This is further enhanced by the ever-changing conflict environment, making access more difficult due to security constraints [ICRC, 2022]. Northern Mali was illustrative of this difficulty, whereby just only a handful of agencies managed to carry out structured and sustained activities in these highly polarized or politicized environments.

Inability of Civilians to Access Basic Social Services

Amongst the most pressing situations facing the ICRC are those in which civilians and communities cannot access commodities or basic services such as health care, education, water and sanitation as they are caught up in the middle of the fighting and freedom of movement is restricted. This happens in main cities, villages and residential neighborhoods where hostilities damage or destroy buildings and infrastructure, and areas are cordoned off by one side or the other, leaving civilians trapped and unable to approach soldiers or fighters for fear of being harassed or arrested [Betsy Jose and Peace A. Medie Oxford Research Encyclopedia, Politics, 2016].

Security Challenges: ICRC Targeted

The recurrent attack by parties to many conflicts against medical structures, transport and staff, including ambulances, rescue workers, hospitals and clinics jeopardize the timely provision of emergency care and is an issue that has necessitated strong renewed attention from the ICRC and its Movement partners. In certain situations, humanitarian organizations face threats and rejection by armed groups [ICRC, 2012]. For instance, various studies have indicated that more aid workers were killed, injured or kidnapped in 2011 than ever before, a reality that had an impact on the choices made by agencies in several contexts [Paul Christopher Webster, Vol.183[13],2011].

Armed Conflict Horrors in Africa: ICRC Incapacitated, Helpless

As earlier on noted, the ICRC derives its mandate from the Geneva Conventions of 1949 and their Additional Protocols of 1977.The Geneva Conventions, also known as IHL protect man against the consequences of war. In spite of such international treaties, the African continent is continuously witnessing a daily catalogue of horrors[such as  murder, forced disappearance, torture, cruel treatment and outrages upon personal dignity, rape and other forms of sexual violence and atrocities perpetrated against the very persons these laws were designed to protect. These violations do not illustrate the inadequacy of the law, but rather that the rules are either not known to the leaders and combatants or that they are quite disregarded [Jennifer Nduku Kiti,1997,p.106].This whole state of affairs renders the ICRC, incapacitated, helpless in its work.

Conclusion

The ICRC is the fruit of private initiative; attaining global stature.  As noted, the main constraints for ICRC at global level are linked to access and security. In many areas, even where ICRC is granted access, it is simply too dangerous for international staff to operate. However although the ICRC still manages to perform considerable work in most conflict situations in Africa, the multiplication of serious security incidents, the ultimate consequences of which is to block assistance activities or force humanitarian organizations to withdrawal unilaterally from the operation, has prompted them to question the means used to date to ensure the safety of their  personnel. In this regard, it is recommended that there should be some preventive measures initiated by states in Africa in times of peace, such as ratification of or adherence to the instruments of IHL such as the Geneva Conventions of 1949 and their Additional Protocols, 1977. With the growing number of organizations present in conflict situations, there’s need to raise the professional standards of humanitarian action in making itself felt.

The parties to an armed conflict must take all appropriate measures in ensuring the safety of the personnel of ICRC. They must take steps in protecting them from all attacks and   protecting their official premises, private residences and means of transport. States must do everything in their power to grant and guarantee to humanitarian organizations and to their personnel the immunities they require in carrying out their tasks in complete independence most particularly those relating to their safety.


[1]Daniel Lubowa is a Lecturer of Law at St. Augustine’s University of Tanzania Law School in Mwanza, Tanzania with more than 15 years of teaching experience. He holds an LLB[MUK], LLM[SAUT]. He is  currently a Ph  D  Candidate at the Open  University of Tanzania. Dar es Salaam, Tanzania. He is a researcher, author, human rights activist as well as motivational speaker.

International Humanitarian Law and Counterterrorism Measures: Mutual or Exclusive Objectives?

By: Jemimah Jehopio.

Background

Attacks in Zamfara State, Nigeria in January 2022 resulted in over 200 deaths and several injuries(United Nations, 2022). Unfortunately, such terrorist attacks are not uncommon on the international scene and thus it is no surprise that efforts to combat terrorism are high on the international agenda, as evidenced by the adoption of robust counterterrorism (CT) measures. While these efforts harbour legitimate objectives, they have affected International Humanitarian Law (IHL) as well as its implementation through principled humanitarian action in consequential ways. This article seeks to highlight key conceptual and operational challenges arising from the interactions between the CT measures and IHL. The article also explores the way forward, highlighting that while it is justifiable to view terrorism through a security lens, respect for IHL and effective CT measures are complementary objectives that can and should be pursued in tandem.           

Impact of Counterterrorism Measures on International Humanitarian Law

The CT measures criminalising humanitarian engagement with designated terrorist groups essentially withhold humanitarian aid from certain groups of people thus eroding the concept of impartiality in the provision of humanitarian assistance (International Committee of the Red Cross, 2015). Such criminalisation influences the choices of humanitarian actors regarding where and whom to serve their programs, rather than those choices being dictated by needs alone (Inter-Agency Standing Committee, 2019). Instead, humanitarian actors are also obliged to give equal weight to avoiding certain groups and areas in which those groups might have a presence or the potential to access aid (Norwegian Refugee Council, 2018). As a result of this cherry picking, some communities may not get the assistance they need solely because of their geographical location (Norwegian Refugee Council, 2018). Consider countries like Afghanistan, Somalia and Nigeria where designated non-state actors effectively control vast swathes of territory, a disproportionate percentage of humanitarian programs is taking place in government-controlled areas partly to comply with the CT legislation (Norwegian Refugee Council, 2018).  In light of the foregoing, criminalising humanitarian engagement with designated groups can inadvertently result in the devastating effect of withholding humanitarian relief from those most in need.

Contractual obligations imposed on humanitarian organisations requiring cooperation with CT efforts, by submission of partners’ personal information, threaten the independence of humanitarian agencies (Mackintosh, 2011; Kurnadi et al., 2016). The principal objection of the humanitarian community is that this contractual requirement promotes the perception that NGOs are intelligence sources (Duplat & Mackintosh, 2013). One example of such obligations placed on NGOs is the United States Agency for International Development (USAID) Partner Vetting System (PVS), which requires “foreign assistance grant applicants to submit detailed personal information on leaders and staff of local partner charities to be shared with US intelligence agencies” (Charity & Security Network, 2012). Consider the effect of such contractual obligations in Somalia where two US organisations, International Medical Corps and CARE, were expelled from areas under Al-Shabaab control in 2008 for allegedly spying and gathering intelligence that led to the assassination of Al-Shabaab leader Sheikh Maalim Adam Ayro in a U.S. air strike (Elhawary et al., 2011). Once again, sixteen humanitarian actors were expelled in 2011 following accusations by Al-Shabaab of, among other things, “collecting data” and “lacking complete political detachment and neutrality with regard to the conflicting parties in Somalia” (Duplat & Mackintosh, 2013). On this basis, the contractual obligations in donors’ clauses requiring submission of partners’ personal information have opened Pandora’s box as demonstrated by the catastrophic expulsions of humanitarian actors.

The CT legislation and sanctions regimes criminalising provision of direct and non-direct material support to designated terrorist groups impose actual and potential liability for carrying out principled humanitarian action (International Committee of the Red Cross, 2015). This liability arises from the very broad and vague definitions in criminal legislation of unqualified acts of “material support” to terrorist organisations that could, in practice, result in the criminalisation of the core activities of humanitarian organisations such as life-saving medical assistance or humanitarian relief (International Committee of the Red Cross, 2015). In such circumstances, principled humanitarian actors face a dilemma: either to forego activities protected under IHL or conduct such activities but risk criminal liability (International Peace Institute, 2018). Moreover, Courts have interpreted the humanitarian exception narrowly as including the provision of medicine only, thereby excluding the provision of medical treatment that draws upon medical expertise (U.S. v. Farhane, 2011; U.S. v. Shah, 2007). Support of a broad nature such as training, expert advice or assistance, services and personnel could attach liability under the material support laws (Elhawary et al., 2011). It thus becomes apparent that the inclusion of broad definitions of material support in CT legislation can effectively criminalise core activities of humanitarian actors.

The issue of financial de-risking, where financial institutions are unwilling to provide services for humanitarian organisations owing to concerns about counterterrorist financing regulations, is a major hurdle for humanitarian actors (Norwegian Refugee Council, 2018). Organisations often resort to informal, unregulated methods such as hawalamoney transfer networks when unable to transfer money into certain areas (Gordon & Taraboulsi-McCarthy, 2018). Ultimately, de-risking is counterproductive to efforts to reduce terrorist financing, since the unregulated methods employed in its pursuit are particularly vulnerable to terrorist financing risks (Financial Action Task Force, 2013). In practice, the effects of financial de-risking are significant delays to implementation of programming (Norwegian Refugee Council, 2018). Consider the banking restrictions imposed on Non-Governmental Organisations (NGOs) in the West Bank, and particularly in Gaza which delay receipt of funds causing not only a reduction in the number of operational NGOs but also the projects to lose some of their significance to beneficiaries (Gordon & Taraboulsi-McCarthy, 2018). Upon this background, financial de-risking not only gives latitude for terrorist financing but also delays program implementation, which are all red flags under IHL.

Reflections on the Way Forward

In spite of the clear evidence that IHL is as an endangered species in the CT realm, there is room to mitigate the existing tension by adoption of the measures now briefly highlighted. Firstly, the careful crafting and effective implementation of humanitarian exemptions and language around respect for IHL in CT measures. Secondly, administrative clarity in the implementation of CT measures. Thirdly, setting up multi stakeholder dialogues to coordinate and ensure coherent policy approaches that protect IHL and principled humanitarian action. Finally, systematic assessment and reporting on member states’ efforts to develop and implement CT measures that protect principled humanitarian action.

Conclusion

In conclusion, there is no doubt that security and counterterrorism objectives are pertinent and must be pursued. However, respect for IHL and humanitarian action are essential tools in the effort to combat terrorism and not privileges to be sacrificed at a time of tension. Humanity, as well, is fundamentally important and a balance ought to be struck in the pursuit of CT objectives, upholding the integrity of IHL with utmost consideration of the imperative necessity for principled humanitarian action. The adoption of effective policy, normative and legal mitigation measures is essential in carving out a humanitarian space in the CT realm and ensuring that principled humanitarian assistance can continue to reach those most in need.

The Case of Thomas Kwoyelo, Its Impact on Uganda’s International Law Obligations on War Crimes

Amnesty according to the Merriam Webster dictionary is, ‘the act of an authority (such as a government) by which pardon is granted to someone or a large group of individuals often before a trial or conviction.’ Article 8 of the Rome Statute of International Criminal Court defines War crimes as, ‘acts carried out during the conduct of a war that violates accepted international rules of war.  These acts include but are not limited to; intentionally killing civilians, prisoners of war, torture, taking hostages, unnecessarily destroying civilian property, deception by perfidy, war time sexual violence, the conspiration of children in the military, genocide or ethnic cleansing, etc.’ The greatest question that we should be asking ourselves today in regards the LRA combatants is, ‘Should rebels who turn themselves in, be allowed to escape justice for potential war crimes through Amnesty? Or must they be prosecuted even at the risk of discouraging reconciliation which is one of the main tenants of the principles of Amnesty. These were the main facts in contention in the case of Thomas Kwoyelo versus Uganda (Constitutional Petition 36 of 2011) [2011] UGCC10.

Thomas Kwoyelo was a commander in the rebel group called the  Lord’s Resistance Army (LRA). He has been in prison since 2009 when he was captured by the Ugandan Peoples Defense forces. He is awaiting trial at the International Crimes Division (ICD) of the High Court in Uganda, which is specially designed to handle war crimes and crimes against humanity. He appeared before the International Crimes Division for plea taking, where his indictment was amended from 12 counts to 53 counts of War Crimes under Article 147 of the fourth Geneva Convention section 2(1)(d) and (e) of the Geneva Convention Act, Cap 363 (Laws of Uganda).

The Court observed that the rationale behind amnesty laws is to offer blanket immunity to criminals in this particular instance, the LRA rebel combatants who abandoned the group and renounced involvement in the war. The amnesty laws in Uganda also apply equally to other Ugandan nationals in other rebel groups, of which the Allied Democratic Forces is the most prominent. Court analyzed the issue of applicability of the amnesty laws in Uganda. Who is eligible and ineligible to be granted amnesty? Justice Peter Onaga held that there is need to grant discretion to judicial officials on who they can give amnesty, because judicial officers have no choice but to grant amnesty to anyone who applies for it. However, this must be carried out in pursuit of justice.

National amnesty laws are founded to shield perpetrators from prosecution for serious human rights violations and war crimes and to bring reconciliation between the perpetrators and the rest of the people in society. It is believed that some of the participants in these war crimes want a way out but are afraid of the harsh legal sanctions such as life imprisonment for their actions. Amnesty comes in as a motivation for some of these war combats to come clean and make amends for their acts without being severely punished by the Law. However, according to the state in the above case, recourse should be made on the type of offender to some of these offences. For example, in the present case, Thomas Kwoyelo was a commander in Chief of the LRA group, making him a principal offender. He was the face of the LRA, he influenced and coerced others to join the war and was the leader in carrying out the war crimes. This was the defense the state used to give amnesty to the other soldiers who were accessories before, during and after the war crimes that were committed by the LRA rebels in Uganda and Congo.

The Inter-American Court on Human Rights, has issued a number of rulings on the same issue, finding that states cannot neglect their duty to investigate, identify, and punish those persons responsible for war crimes, and crimes against humanity by enforcing amnesty laws or other similar domestic provisions. Blanket amnesties have the effect of protecting all individuals without regard to the nature of the crimes committed. Before shielding individuals suspected of committing serious human rights violations and war crimes using amnesty, investigations should be carried out by the state and those found guilty of committing these war crimes ought to be punished. Otherwise, these same criminals will use it as a defense to carry out war crimes, knowing that in the long run Amnesty laws will exonerate them. Amnesty will end up being a ‘sword’ and not a ‘shield’. This will also contravene the whole essence of Criminal Law, which is to stop crime in society through punishment/sanctions.

This principle is affirmed in the Juba Agreement that states that, ‘For formal Courts, once amnesty is provided for under the constitution, they shall exercise discretion over individuals who are alleged to bear particular responsibility for the most serious crimes especially crimes amounting to international crimes during the course of conflict.’

The accused Thomas Kwoyelo as a principal offender was denied amnesty and indicted for the alleged commission of international war crimes as provided under section 2(1)(d) and (e) of the Geneva Conventions Act Cap 363 (Laws of Uganda).

In conclusion therefore, before granting amnesty to perpetrators, regard should be given to the nature of violation or war crime, the type of offender the accused is. Regard should also be made to the fact that international laws complement the national laws. In case of conflict of legal principles in international laws and national laws, national laws will take precedence.

Written by;

Jochebed Nassimbwa And Imecu Rebecca Eriechu

We are using cookies to give you the best experience. You can find out more about which cookies we are using or switch them off in privacy settings.
AcceptPrivacy Settings

GDPR

  • Disclaimer

Disclaimer

The views and opinions expressed on this blog, do not reflect the views and opinions of Uganda Christian University, Faculty of Law nor any other partner institutions affiliated to this blog