By Gwasira Jasper (See end of article for profile)

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 4^th 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.”

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[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.

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 18^th edition of the ICRC writing competition for East African Universities. Jemimah also attended the 24^th 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.

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[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.

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