Fikire Tinsae Birhane
It has been noted by various commentators, including myself, that there has been a non-international armed conflict (NIAC) between the Federal Government of Ethiopia and the dissident forces of the former ruling party of the Tigray region of Ethiopia, the Tigray People Liberation Front (TPLF) since around the late hours of 3 November 2020 (see here, here, here, and here). In addition to the two opposing parties to the conflict, Eritrean forces have also been taking part in the conflict on the side of the Federal Government. Such involvement of a foreign state does not change the non-international character of the conflict.
Since the early days of its outbreak, reports of serious violations committed in the context of the conflict have surfaced. These include civilian massacres, sexual and gender-based violence, extrajudicial killings, widespread destruction and looting of public and private property, and attacks on healthcare institutions and religious and cultural objects. Subsequently, there have been calls for independent and impartial investigations by various international organizations and States. In response to such calls, the Federal Government launched an investigation through its Attorney General (AG) office and the Federal Police Commission. This complements the investigations already underway by the Ethiopian Human Rights Commission (EHRC), the constitutionally established independent national human rights institution. Additionally, an agreement to conduct joint investigations has been reached between the United Nations Office of the High Commissioner for Human Rights (OHCHR) and the EHRC.
Against this background, I intend to appraise here the source of the duty to investigate serious violations under international law and what this duty embodies in relation to the Tigray context, particularly focusing on alleged violations of rules aimed at the protection of life.
Which body of international law?
With allegations of serious violations as reported in the Tigray conflict that could trigger the duty to investigate, there is a need to identify the body of international law applicable to each conduct giving rise to the alleged violation. This could give some guidance as to the applicable standards in examining each allegation. Due to the fragmentation of international law, varying standards for assessing a particular type of incident might be provided by different bodies of law. Thus, it would not be sound to employ the same standard for all alleged violations. In relation to the issue under analysis, international humanitarian law (IHL) and international human rights law (IHRL) are relevant bodies of international law that need to be taken into consideration.
What do the laws provide?
- Two Applicable Paradigms under IHL and IHRL
In situations of armed conflict, both IHL and IHRL have concurrent application and from the perspective of both, allegations of violations mainly relate to the use of lethal force. Accordingly, the ‘conduct of hostilities paradigm (CHP)’ will be applicable for assessing matters concerning the use of force in the IHL framework, while the ‘law enforcement paradigm (LEP)’ will be applicable in the IHRL framework. Yet, on various matters, especially on those related to the legality of the use of lethal force, they provide for distinct standards of assessment. Thus, it can be unclear at the onset as to which paradigm would apply regarding the different scenarios of the armed conflict.
During armed conflicts, the CHP provides for the following cardinal rules, viz. the principles of distinction, proportionality, and precautions. Additionally, it provides that the use of means and methods of warfare that are of the nature to cause superfluous injury or unnecessary suffering are prohibited in relation to legitimate targets. On the other hand, unlike the CHP, the LEP can be applicable both inside and outside the context of an armed conflict. Under this paradigm, the use of force is only permitted when absolutely necessary, proportionate to the aim pursued, and with due regard to strict precaution to avoid, as far as possible, the use of lethal force as such.
- The conduct of hostilities paradigm: the primary framework applicable to situations of armed conflict
According to the principle of distinction of the CHP, parties to the NIAC shall at all times distinguish between civilian population and objects on the one hand, and fighters and military objectives on the other. Military operations are to be directed only against military objectives. Civilians, therefore, enjoy such protection afforded in IHL, unless and for such a time, as they directly participate in hostilities.
Although this basic rule is applicable to NIACs as well, it is difficult to assess the observance of the principle of distinction in NIACs. This is because the application of the rules on targeting are difficult to clearly delimit or determine in NIACs. The law is clear that civilians directly participating in hostilities (DPH) are legitimate targets until their direct participation ceases (see CIHL, Rule 6). However, it is controversial whether, unlike civilians, members of non-state armed groups (NSAGs) could be legitimately targeted while they do not DPH. This is, on the one hand, because of lack of combatant status in NIACs. On the other, it is due to the practical challenges in which fighting members of NSAGs often do not distinguish themselves from the civilian population as opposed to members of State armed forces.
To clarify this issue, the ICRC published an Interpretive Guidance. It noted that for purposes of the principle of distinction, the decisive criterion for the lawful use of lethal force against members of a NSAG depends on the fact that such persons assume a ‘continuous combat function (CCF)’ in the group. This means that they assume a function involving the continuous DPH. Accordingly, those members of NSAGs whose specific function is to continuously commit acts that constitute DPH are targetable at all times during the NIAC (DPH Guidance: 33–35).
Recently, the AG published its preliminary investigative findings in the context of Tigray. The findings focused on the incidents that occurred in the city of Axum in late November. This report received criticism from various bodies, notably Amnesty International and Human Rights Watch. It revealed the killing of over 100 civilians in a reprisal attack launched by Eritrean troops – 40 persons in home-to-home raids and 70 while they were outdoors. IHL’s CHP provides for prohibition of reprisals (CIHL, Rule 148). Additionally, the killing of those persons conducted in home-to-home raids means that the victims were not DPH at the material time. Hence, there exists a reasonable suspicion of serious violations of IHL in these incidents.
- The principle of necessity: intersecting the two paradigms
Notably, in addition to civilians and members of the fighting forces who are hors de combat (those who no longer take active part in hostilities due to sickness, wounds, detention, or any other cause), the CHP also protects those who DPH. One aspect of the principle of military necessity is that those who DPH should receive only such force that does not exceed the necessary force to accomplish a legitimate military purpose. As noted in the AG preliminary findings, there are indications that some of those killed while found outdoors were ‘irregular combatants’, which could be taken to mean civilians DPH or/and fighters having CCF since there is no such status called ‘irregular combatant’ under IHL. The abovementioned incident occurred between 27 and 28 November 2020, after the actual fighting had moved away from the city of Axum (See AG press release). This implies that, even if those killed were attacked due to their status as persons DPH, at the material time of their attack it was not militarily necessary to use this kind of (lethal) force, as there were no actual hostilities taking place there. The attacks by forces of the dissident armed group of TPLF on sleeping soldiers of the Ethiopian National Defense Forces on the night of 3 November 2020, which are believed to have triggered the NIAC, can be similarly analyzed. Accordingly, application of the rules of targeting under the CHP should be informed by the LEP, which requires a gradated use of the kinds of force available, giving priority to less-lethal force as long as this is capable of serving military necessity in that particular scenario.
What to investigate?
According to prominent IHL commentators, under the CHP, investigation is required only where there is reasonable suspicion, credible allegation, or a possibility that serious violations of IHL (meaning war crimes) have been committed. The investigations underway regarding alleged violations in the context of the armed conflict in Tigray seem to focus on those incidents that are dubbed as a ‘massacre’ (for e.g., Maikadra and Axum). However, the CHP maintains that all losses of life which are ‘credibly alleged’ to have resulted from unlawful use of lethal force, in violation of IHL targeting rules, must be investigated – since such violations would constitute war crimes.
How to investigate?
While the legal framework under IHRL provides for the primary principles regulating the conduct of an investigation, IHL is largely silent in this regard.
Elaborating on the issue from the CHP, the Geneva Academy and ICRC Guidelines on Investigating Violations of IHL assert that an investigation needs to be effective, meaning the ‘process must be appropriate and undertaken in good faith, with all feasible means employed to achieve its goal’. Notably, the Guidelines draw the link of effectiveness between ‘effective penal sanctions’, ‘effective investigations’, and ‘effective remedies.’
Under the LEP, any use of lethal force during law enforcement must be subjected to an effective investigation. In this regard, existence of a clear duty to investigate each time lethal force is used has been emphasized by different bodies, including the African Commission on Human and Peoples’ Rights, the Human Rights Committee, and the UN Special Procedures Mandates. Accordingly, IHRL has well-developed mechanisms for the conduct of such investigations. Beyond calling for an effective investigation, it also puts forward the key elements of what amounts to an effective investigation. This makes IHRL essential in providing substance to the effective investigation obligation invoked within the IHL framework. Such consideration of IHRL standards, however, should at the same time reflect the realities of the conduct of hostilities as embedded in the IHL framework.
In general, to ensure its effectiveness, an investigation must be conducted by independent and impartial persons, thorough in nature, carried out without unreasonable delay, and transparent to the extent possible considering the prevailing circumstances. As can be inferred from the AG report, the required domestic legal framework exists to effectively carry out investigations into the context under scrutiny. Since the investigations are still underway, it is yet to be seen whether the legal framework would indeed enable for conducting effective investigations The launching of joint investigations by the EHRC and the UN OHCHR is a step towards ensuring the credibility of the investigations conducted into the context.
State practice establishes the duty to investigate serious violations of IHL as a norm of customary international law (CIHL, Rules 158, 161). Even if not explicitly stated in treaty IHL of NIACs, the general legal framework in these treaties that make inferences to penal prosecutions by parties to an armed conflict seems to suggest that all parties to the conflict, including NSAGs that are parties to armed conflicts, bear the duty to investigate. Otherwise, the legal framework would be functionally impossible to implement.
Similarly, though duties established by the IHRL framework are usually considered as State obligations, they can apply to NSAGs as well. Obviously, in the context of the LEP, NSAGs with control of territory will usually administer areas where life goes on for the inhabitants, and matters will not always require the singular application of the IHL framework, especially where certain activities stray from a proper nexus to the armed conflict. Such an application of IHRL duties to NSAGs is premised on the fact that they too can be confronted by similar situations to State armed forces during armed conflict, where a focus on application of the CHP of IHL would be extreme in view of the need to protect human life.
In short, all parties to the conflict in Tigray, i.e., the Federal Government of Ethiopia, the Government of Eritrea, and the TPLF that commands and controls the dissident armed forces, bear the duty to investigate serious violations within their respective spheres of engagement and influence.