By Gwasira Jasper**

Abstract

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.

Keywords: War crimes, crimes against humanity and investigations

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 forces supporting that were supporting it (Eritrean troops, the Amhara Police and Fano militia) have been accused of committing various sexual crimes against Tigrayan women. It is said that these sexual crimes might amount 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 a civilian object is; what a war crime and CAH is; what an indiscriminate attack is; what it means to pillage; what a human shield is; 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

IHL does not allow attacks on 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.

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.’^[82] 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.^[83] Most war crimes involve ‘death, injury, destruction or unlawful taking of property.’^[84] All acts that amount to war crimes do not necessarily have to result in the actual damage to protected persons or their objects.^[85]

To establish individual criminal liability for a war crime, the violation must entail theindividual criminal responsibility of the person who committed the act.^[86]The perpetrator must be aware of the factual circumstances which established the existence of the relevant armed conflict.^[87] The person must also be aware of the connection (nexus) between these factual circumstances and his/her conduct.^[88]

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.^[89] 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.^[90] The denial of humanitarian assistance can amount to a war crime.^[91] The Security Council, among other actors, stated that Ethiopia at times  allowed delivery of assistance (into Tigray province) and in certain instances restricted it.^[92] 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.^[93] In such instances, humanitarian organisations have the right to provide aid.^[94] These organisations must comply with the principles of humanity- they must be impartial, independent, and neutral.^[95]

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.^[96] 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.^[97]

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.^[98] 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.^[99]

When a humanitarian organisation fails to comply with the principles of humanity, consent to operate can be denied.^[100] Ethiopia accused several humanitarian actors of being impartial,^[101] it accused some of them of providing weapons to the TPLF.^[102] Several organisations were expelled from Ethiopia.^[103] Ethiopia denied that there was hunger in Tigray- hence, in Ethiopia`s view, there was no need for humanitarian assistance.^[104]

Ethiopia alleged that it restricted access, in some instances, because several humanitarian organisations had not complied with the principles of humanity.^[105] This if true, investigations need to be undertaken to verify this, is a valid ground for restricting humanitarian access.^[106] Furthermore, Ethiopia, claims there is no hunger in Tigray/need for humanitarian assistance,^[107] if true, then no war crime could have been committed.^[108] 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.^[109]

There are conflicting narratives. It is unclear, if Ethiopia and Eritrea have committed war crimes by restricting access to humanitarian assistance. Just because humanitarian aid has been restricted does not mean a war crime has been committed and in any case, not every situation of denial of humanitarian aid, leads to the commission of a war crime. An investigation needs to be undertaken so that detailed information concerning the restriction of the 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.^[110] It is prohibited to attack humanitarian personnel, a violation of this prohibition, amounts to a war crime.^[111] 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.^[112]

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.^[113] 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.^[114] It is a war crime to attack hospitals.^[115] 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.^[116] 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.^[117] 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.^[118]

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.^[119]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.^[120] Based on the little information we have, Eritrean, and Ethiopian forces might have committed war crimes or CAH.^[121] The matter is not clear.

ICL prosecutes individuals for criminal violations based on individual criminal responsibility.^[122] 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.^[123]Without knowing the mens rea and knowledge of the perpetrator, one cannot conclusively say, a war crime has been committed.^[124]Due to lack of clarity of the facts, an independent investigation must be launched.^[125] 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).^[126]

Directly attacking civilians is a war crime.^[127] 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.^[128]

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.^[129] Thus, they could be directly attacked because at that time they could not be considered civilians but members of an armed group.^[130]

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.^[131] The attacks are alleged to have hit civilian infrastructure and struck residents.^[132] 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.^[133]

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.^[134] 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.^[135] 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).^[136] Civilian infrastructure cannot shield a combatant or civilian directly participating in hostilities from an attack.^[137]

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.^[138]

Civilian objects cannot be the object of an attack.^[139] However, the fact that a civilian object was hit does not necessarily mean the civilian object was the object of attack.^[140] 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.^[141] 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.^[142]

The object of the attack would not be the civilian infrastructure (object) but the combatants and or civilians who were directly participating in hostilities.^[143] Civilian infrastructure does not shield a combatant or civilian directly participating in hostilities from an attack.^[144] 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.^[145] 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.^[146] 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.^[147]

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.^[148] 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.^[149] 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.^[150]

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.^[151] However, if they did not do any of the things mentioned, then the attackers might have committed a war crime.^[152]

There is insufficient information to conclude that a war crime was perpetrated. The alleged attack can also potentially amount, for example, to a CAH.^[153] 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.^[154] 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.^[155] Some of the victims were shot at point blank range, dead bodies were pushed over the cliff.^[156] According to some, the perpetrators in one of the videos can be heard insulting and mocking the dead.^[157] Other sources have not reported about this aspect.^[158]

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).^[159] It is not clear who the victims are (whether they are civilians or combatants) in the video. The victims are wearing civilian clothes.^[160] The victims can be heard speaking in Tigrinya, this is the language spoken in Tigray.^[161] 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.^[162]

However, other sources have not mentioned this aspect.^[163] 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).^[164] 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.^[165] Unlike war crimes, the object of attack can be civilians or combatants.^[166] 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.^[167]

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.^[168] However, if the requirements of CAH are met, the crime can be a CAH. It is not clear which crime was perpetrated.^[169]

Mocking and insulting the dead falls under the prohibition not to commit outrages upon personal dignity, in particular humiliating and degrading treatment.^[170] 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.^[171] We are not provided details of exactly how these “ nine young Eritrean men” were killed.^[172] 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.^[173] 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.^[174] There is insufficient information to determine whether a war crime was committed. Just because nine young men were killed, outside a church, does not mean 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).^[175] Such allegations, if true, amount to war crimes.^[176] The allegations of indiscriminate attacks are not substantiated.^[177] They are just blanket allegations lacking details.^[178] 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.^[179] There is no context given with respect to how the homes were destroyed.^[180] 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.^[181] 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.^[182]

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.^[183] There is insufficient context on how the TPLF killed the “civilians.” If the “civilians” were part of the Amhara militia (Fano militia),^[184] these “civilians” were combatants.^[185] They could be attacked at any time (except when hors de combat) including when they were inside their homes.^[186] If attacks were being launched from the relevant homes against the TPLF then the TPLF could attack the people in the relevant homes.^[187] 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.^[188] The TPLF has been accused of raping Eritrean women.^[189] 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.^[190]  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.^[191] The person must also be aware of the connection between the war and his/her conduct.^[192] 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.^[193]

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.^[194] There is no clarity on the matter. The TPLF has been accused of committing rape as a war crime.^[195] 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.^[196] 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.^[197]

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.^[198]

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.^[199] 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.^[200] 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.^[201] 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).^[202]

The physical perpetrators of the alleged sexual slavery have not been identified. Therefore, one cannot evaluate their knowledge and mental state.^[203] 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.^[204] 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).^[205] It is also alleged that the exact relevant crimes might be war crimes.^[206] A person can be convicted for committing rape and committing rape as a form of torture, based on the same conduct.^[207]

For rape as a form of torture to be proven,^[208] 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’.^[209]

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.^[210] The reported relevant cases are alleged to have caused severe physical and mental trauma.^[211]

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.^[212]

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.^[213] 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.^[214] 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.^[215]

It is alleged that Tigrayan women were targeted (discriminated against) for sexual violence such as rape and sexual slavery.^[216] Rape and sexual slavery, individually, are severe deprivation of rights.^[217] 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.^[218]

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.^[219] 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.^[220] 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.^[221] 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

**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] 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).

[82] Rule 156 customary.

[83] Ibid

[84] Ibid

[85] Ibid

[86] 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.

[87] Ongwen case para 2692.

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

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

[90] 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?).

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

[92] 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.

[93] 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)

[94] Rule 55-56 customary.

[95] 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).

[96] 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).

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

[98] Rule 56 customary.

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

[100] 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).

[101] 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).

[102] 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).

[103] 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).

[104] 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).

[105] 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).

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

[107] See note 103.

[108] Rule 55-56 customary.

[109]  See note 107.

[110] 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).

[111] 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.

[112] 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).

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

[114] 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.

[115] 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.

[116] Article 27 Regulations; Rule 28 customary.

[117] 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).

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

[119] Amnesty: Massacre in Axum.

[120] 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.

[121] 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.

[122] 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).

[123]  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).

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

[125] Eritrean Forces Massacre Tigray Civilians.

[126] 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).

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

[128] 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).

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

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

[131] See note 126.

[132] Ibid

[133] 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.

[134] Ibid

[135] 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.

[136] 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.

[137] Bouché 891, 899 and 900.

[138] See note 126.

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

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

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

[142] See note 140.

[143] See note 140.

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

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

[146] Ibid

[147] Ibid

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

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

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

[151]  Rule 14 and Practice Relating to customary.

[152] Ibid

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

[154] 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).

[155] 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).

[156] See note 154.

[157] See note 155.

[158] 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).

[159] 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).

[160] Ibid

[161] Ibid

[162] See note 155.

[163] See note 154.

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

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

[166] Rule 156 customary.

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

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

[169] Article 7 (1) Rome Statute.

[170] Rule 90 customary.

[171] 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).

[172] Ibid

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

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

[175] 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).

[176] Ibid

[177] Ibid

[178] Ibid

[179] Rule 10 customary.

[180] 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).

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

[182] Rule 10 customary; Katanga case para 893^.

[183] 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).

[184] 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).

[185] Ibid; Rule 3-4 customary.

[186]  Rules 3-4 and 47 customary.

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

[188] 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).

[189] 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.

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

[191] Lubanga Article 74 para 1016.

[192] Ibid

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

[194] 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.

[195] 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.

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

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

[198] 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.

[199] Amnesty Report 12, 14 and 32.

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

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

[202] 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.

[203] See note 198.

[204] See note 202.

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

[206] Amnesty Report 32 and 33.

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

[208] 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.

[209] 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.

[210] Amnesty Report 6 and 12.

[210] 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.

[211] Amnesty Report 12.

[212] See note 202.

[213] Amnesty Report 33.

[214] Ongwen case para 2633.

[215] 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.

[216] See note 213.

[217] Rule 93 customary.

[218] See note 202.

[219] 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).

[220] 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).

[221] Risks to Civilians Persist.

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