Part 4: Applicable Legal StandardsUnder international law, the conflict between Ethiopia and the Ogaden National Liberation Front (ONLF) in the eastern Somali Region is a non-international (internal) armed conflict in which both parties are bound by international humanitarian law (the laws of war). Ethiopian state forces—the Ethiopian National Defense Forces (ENDF) and pro-government militias—and the ONLF are obligated to observe article 3 common to the four Geneva Conventions of 1949 (“common article 3”), the Second Additional Protocol of 1977 to the Geneva Conventions (Protocol II), applicable to non-international armed conflicts, and relevant customary international law. Ethiopia is a party to the 1949 Geneva Conventions and both Protocol II.230 International humanitarian law forbids deliberately harming civilians and other persons no longer taking part in the hostilities, including wounded or captured combatants. It also provides rules on the conduct of hostilities to minimize unnecessary suffering. International human rights law is also applicable, including the International Covenant on Civil and Political Rights (ICCPR)231, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment232, and the African Charter on Human and Peoples’ Rights.233 Ethiopia has incorporated many of the provisions of the most important human rights treaties in its constitution and other relevant national legislation.234 These provisions prohibit violations of the right to life, torture and other inhuman and degrading treatment, arbitrary arrest and detention, and unfair trials. They also provide for the rights to the protection of the home and family, and specific protection of children in times of armed conflict.235 In the context of hostilities occurring as part of armed conflict, international humanitarian law, as the lex specialis or specialized law, takes precedence but does not replace human rights law. Persons under the control of government or armed opposition forces in an internal armed conflict must, in all cases, be treated in accordance with international humanitarian law, which incorporates important human rights standards.236 Individuals may be held criminally responsible for violations of international humanitarian and human rights law. Serious violations of international humanitarian law are war crimes. Human rights abuses committed as part of a widespread or systematic attack against any civilian population are crimes against humanity. Summary Executions and Other Mistreatment of Persons in CustodySummary or extrajudicial executions and the mistreatment of detained persons are illegal under any circumstances according to both international humanitarian and human rights law. Common article 3 prohibits “at any time and in any place whatsoever” with respect to civilians and captured combatants:
Similar fundamental guarantees are provided under Protocol II.237 International human rights laws prohibit the arbitrary deprivation of life and, at all times, torture and other cruel, inhuman or degrading treatment.238 Rape and Other Sexual ViolenceRape and other forms of sexual violence that is committed in a non-international armed conflict violate international humanitarian and human rights law. International humanitarian law prohibits both states and non-state armed groups from committing rape and other forms of sexual violence.239 International human rights law binding on Ethiopia also contains protections from rape and sexual assault as forms of torture and other ill-treatment, and as discrimination based on sex.240 Attacks on Civilians and Civilian ObjectsA fundamental principle of international humanitarian law is that parties to a conflict must distinguish between combatants and civilians, and may not deliberately target civilians or civilian objects. Protocol II states that “the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.” They are not to be the object of attack, and all acts or threats of violence with the primary purpose to spread terror among the civilian population are prohibited.241 Customary international humanitarian law prohibits attacks directed against civilian objects, such as homes and places of worship.242 Protocol II specifically bans attacks, destruction, or removal of objects indispensable to the survival of the civilian population including food-stuffs, agricultural areas, crops, livestock, drinking water installations and supplies, and irrigation works.243 Pillage (or plunder) – the forcible taking of private property – is also prohibited.244 Forced DisplacementThe forced displacement of civilians for war-related reasons is forbidden. Civilians may only be displaced for their security or imperative military reasons. Protocol II states:
The term “imperative military reasons” usually refers to evacuation because of imminent military operations. Such evacuation assumes proper procedures for notification and evacuation, and proper means of transport to a safe place. It does not allow for a military attack on a civilian population or civilian property to force the displacement, as civilians are not legitimate military objectives under international humanitarian law. The provisional measure of evacuation is appropriate if an area is in danger as a result of military operations or is liable to be subjected to attack. Evacuation may also be permitted when the presence of civilians in an area hampers military operations. The prompt return of the evacuees to their homes is required as soon as hostilities in the area have ceased. The evacuating authority bears the burden of proving that its forcible relocation conforms to these conditions. Displacement or detention of civilians solely to deny a support base to the enemy cannot be considered to promote the security of the civilians. This also is not justified as “imperative military reasons,” which require “the most meticulous assessment of circumstances” to avoid abuse.246 As explained by the authoritative ICRC Commentary:
Similarly prohibited is the mass relocation or displacement of civilians for the purpose of removing an ethnic group deemed friendly to an armed opposition group. Even in instances where the Ethiopian government is able to show that specific displacements in Somali Region were necessary and lawful under international humanitarian law, it still has the independent obligation to take “all possible measures” to receive the displaced civilian population “under satisfactory conditions of shelter, hygiene, health, safety, and nutrition.”248 Collective Punishment and ReprisalsCollective punishments are prohibited under international humanitarian law in all circumstances.249 The prohibition on collective punishments applies to criminal sanctions against persons for actions for which they do not bear individual criminal responsibility, but also to “all sanctions and harassment of any sort, administrative, by police action or otherwise.”250 Belligerent reprisals are acts that would otherwise be unlawful acts of war but, when used as an enforcement measure in reaction to the unlawful acts of an adversary may, in exceptional cases, be permitted. Although customary international law does permit a very narrow category of belligerent reprisals in international armed conflicts,251 parties to non-international armed conflicts, such as the conflict in Somali Region, do not have the right to resort to belligerent reprisals.252 Reprisals and collective punishment violate international humanitarian law prohibitions against the mistreatment of civilians and captured combatants. Common article 3 to the Geneva Conventions prohibits in all circumstances acts including murder, mutilation, cruel, humiliating and degrading treatment, and torture against civilians and other persons no longer taking part in the hostilities. Article 4 of Protocol II also sets out the fundamental guarantees of humane treatment, which explicitly includes a prohibition on collective punishments, acts of terrorism, and pillage. Commentaries of the International Committee of the Red Cross on Protocol II and customary international law make clear that these articles leave no room for reprisals in non-international armed conflict.253 Individual Criminal ResponsibilityWar CrimesWith respect to individual responsibility, serious violations of international humanitarian law, including the mistreatment of persons in custody and deliberate attacks on civilians and civilian property, when committed with criminal intent amount to war crimes. Criminal intent requires purposeful or reckless action. Individuals may also be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, aiding or abetting a war crime. Responsibility may also fall on persons ordering, planning, or instigating the commission of a war crime.254 Commanders and civilian leaders may be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.255 Under international law, Ethiopia has an obligation to investigate alleged war crimes by their nationals, including members of their armed forces, and prosecute those responsible for war crimes.256 Crimes against HumanityThe Ethiopian armed forces have committed numerous acts of murder, torture, rape, and forcible population transfers in the course of widespread, and what appears to be, systematic attacks against the Somali civilian population in Somali Region. As such, Human Rights Watch believes that these attacks amount to crimes against humanity under international law. Crimes against humanity were first codified in the charter of the Nuremberg Tribunal of 1945. The purpose was to prohibit crimes “which either by their magnitude and savagery or by their large number or by the fact that a similar pattern was applied…endangered the international community or shocked the conscience of mankind.”257 Since then, the concept has been incorporated into a number of international treaties and the statutes of international criminal tribunals, including the Rome Statute of the International Criminal Court.258 The definition of crimes against humanity varies slightly by treaty, but as a matter of customary international law the term “crimes against humanity” includes a range of serious human rights abuses committed as part of a widespread or systematic attack by a government or organization against a civilian population.259 Murder, torture, rape, and forcible population transfers all fall within the range of acts that can qualify as crimes against humanity.260 Unlike war crimes, crimes against humanity may be committed in times of peace or in periods of unrest that do not rise to the level of an armed conflict. Crimes against humanity include only abuses that take place as part of an attack against a civilian population. So long as the targeted population is of a predominantly civilian nature, the presence of some combatants does not alter its classification as a “civilian population” as a matter of law.261 Rather, it is necessary only that the civilian population be the primary object of the attack.262 Thus, abuses by the Ethiopian armed forces directed against civilians even during the course of military operations against villages in Somali Region can fall under the definition of crimes against humanity. The attack against a civilian population underlying the commission of crimes against humanity must be widespread or systematic. It need not be both.263 “Widespread” refers to the scale of the acts or number of victims.264 Human Rights Watch considers the numerous acts of murder, torture, rape, and forced displacement by ENDF soldiers against the civilian population in Somali Region to be “widespread.” Human Rights Watch received reports of at least 87 burnings and forced displacements of villages, many of which involved extrajudicial killings, torture, and rape across numerous areas of Somali Region. Although there are no reliable estimates of the total number of people affected by these attacks, Human Rights Watch’s research alone indicates that at a conservative estimate, at least 150 people have been unlawfully killed, hundreds unlawfully detained and mistreated, and tens of thousands of people have been forcibly displaced since early 2007 alone, estimates that are far from comprehensive. A “systematic” attack indicates “a pattern or methodical plan.”265 International courts have considered to what extent a systematic attack requires a policy or plan. For instance, such a plan need not be adopted formally as a policy of the state.266 Human Rights Watch cannot determine conclusively whether or not the serious abuses committed by the Ethiopian armed forces in Somali Region have been systematic. Nonetheless, the similarity of many of the attacks on the villages and towns in 2007 documented by Human Rights Watch makes a strong case that there is a pattern to the attacks. The repeated forced relocations and village burnings, with their attendant killings, torture, and rapes, do not indicate sporadic and unconnected events.267 Furthermore, the intensified campaign of government attacks from June through August 2007, combined with the simultaneous measures taken by the federal and regional governments, such as the imposition of commercial and trade blockades, increased restrictions on humanitarian access and assistance, and the discriminatory measures passed by the regional government, all appear to be part of a broader policy of deliberately punishing communities perceived to be linked to the ONLF. Lastly, for individuals to be found culpable for crimes against humanity requires their having the relevant knowledge of the crime.268 That is, perpetrators must be aware that their actions formed part of the widespread or systematic attack against the civilian population.269 While perpetrators need not be identified with a policy or plan underlying crimes against humanity, they must at least have knowingly taken the risk of participating in the policy or plan.270 An investigation into crimes against humanity in Somali Region would have to address this element of the crime. The Ethiopian government has a legal obligation to prosecute and punish military and civilian officials responsible for the commission of crimes against humanity.271 Individuals accused of crimes against humanity cannot avail themselves of the defense of following superior orders nor benefit from statutes of limitation. Because crimes against humanity are considered crimes of universal jurisdiction, all states are responsible for bringing to justice those who commit crimes against humanity. There is an emerging trend in international jurisprudence and standard setting that persons responsible for crimes against humanity, as well as other serious violations of human rights, should not be granted amnesty. 230 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 75 U.N.T.S. 31, entered into force October 21, 1950; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (Second Geneva Convention), 75 U.N.T.S. 85, entered into force October 21, 1950; Geneva Convention relative to the Treatment of Prisoners of War (Third Geneva Convention), 75 U.N.T.S. 135, entered into force October 21, 1950; Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 75 U.N.T.S. 287, entered into force October 21, 1950. Ethiopia became a party to the Geneva Conventions on October 2, 1969. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 U.N.T.S 609, entered into force December 7, 1978. Ethiopia became a party to Protocol II in April 1994. 231 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1996), 999 U.N.T.S. 171, entered into force March 23, 1976, acceded to by Ethiopia on September 11, 1993. 232 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, acceded to by Ethiopia on April 13, 1994. 233 African [Banjul] Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force October 21, 1986, ratified by Ethiopia on June 15, 1998. 234 Constitution of the Federal Democratic Republic of Ethiopia, August 21, 1995. Article 13(2) of Chapter Three, “Fundamental Rights and Freedoms,” states: “The fundamental rights and freedoms specified in this Chapter shall be interpreted in a manner conforming to the principles of the Universal Declaration of Human Rights, International Covenants on Human Rights and international instruments adopted by Ethiopia.” 235 Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990, acceded to by Ethiopia on June 13, 1991; Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981, ratified by Ethiopia on October 10, 1981. 236 The UN Human Rights Committee, the expert international committee that monitors state compliance with the ICCPR, has stated that “the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.” Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004), para. 11. 237 Protocol II, Article 4. 238 See ICCPR, articles 5 and 7; Convention against Torture, articles 1 and 16. 239 Protocol II explicitly prohibits rape and “any form of indecent assault.” Article 4(2)(e). See also, common article 3, which implicitly prohibits rape and other sexual violence during internal armed conflicts as forms of cruel treatment, torture and outrages upon personal dignity. 240 The ICCPR prohibits torture and other cruel, inhuman or degrading treatment (art. 7) and protects women’s rights to be free from discrimination based on sex (arts. 2(1) and 26). The Committee on the Elimination of All Forms of Discrimination Against Women, which monitors state compliance with the CEDAW, has enumerated a wide range of obligations for states related to ending sexual violence, including ensuring appropriate treatment for victims in the justice system, counseling and support services, and medical and psychological assistance to victims. Committee on the Elimination of All Forms of Discrimination Against Women, "Violence Against Women," General Recommendation No. 19 (eleventh session, 1992), U.N. Document CEDAW/C/1992/L.1/Add.15. 241 Protocol II, Article 13. 242 See ICRC, Customary IHL, rule 7. 243 Protocol II, Article 14. 244 Protocol II, Article 4(2)(g). 245 Protocol II, article 17. 246 ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: Martinus Nijhoff Publishers, 1987), p. 1472. 247 Ibid. 248 Protocol II, article 17. 249 Protocol II, article 4(2)(b); see also, ICRC, International Humanitarian Law, rule 103. 250 Ibid, para. 3456; ICRC Commentaries on Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, para. 3055. 251 See ICRC, International Humanitarian Law, rules 145 and 146. 252 See ICRC, International Humanitarian Law, rule 148. . . . For a belligerent reprisal to be lawful in an international conflict, it must be an exceptional measure carried out as a measure of enforcement against an adversary who has violated the laws of war; it must be a measure of last resort; it must be proportionate to the original violation; the decision to carry out the reprisal should be carried out at the highest level of government; and the reprisal must stop once the adversary has complied with the law. Ibid, rule 145. 253 See ICRC, Commentaries on 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, pp. 1372-3, paras. 4530-6 International Committee of the Red Cross (ICRC), Henckaerts & Doswald-Beck, eds.,Customary International Humanitarian Law (Cambridge: Cambridge Univ. Press 2005), rule 148. 254 See ICRC, Customary International Humanitarian Law, p. 554. 255 See ICRC, Customary International Humanitarian Law, rule 153. 256 See ICRC, Customary International Humanitarian Law, rule 158 citing ICC Statute, preamble. 257 History of the United Nations War Crimes Commission and the Development of the Laws of War (1943), p. 179, quoted in Rodney Dixon, “Crimes against humanity,” in Commentary on the Rome Statute of the International Criminal Court (O. Triffterer, ed.) (1999), p. 123. 258 Rome Statute of the International Criminal Court, 2187 U.N.T.S. 3, entered into force July 1, 2002, article 7. 259 See Rodney Dixon, “Crimes against humanity,” in Commentary on the Rome Statute of the International Criminal Court (O. Triffterer, ed.) (1999), p. 122. This is the standard applied by Article 7 of the Rome Statute of the International Criminal Court. Ethiopia is not a state party to the Rome Statute and is therefore not bound by it, but the definition in article 7 accords with the conception of crimes against humanity in customary international law. 260 Murder and torture are among the core offenses that have been included within the definition of crimes against humanity at least since the adoption of the charter establishing the Nuremberg tribunal after World War II. Deportation (to another country) was listed but not (internal) forced transfer. Rape was not explicitly included in the charter’s definition of crimes against humanity in article 6(c) although it could be derived from that definition’s general prohibition against “other inhumane acts.” This ambiguity has been resolved in recent years; the statutes of the International Criminal Tribunals for Rwanda and the former Yugoslavia as well as the Rome Statute all explicitly include rape in the list of enumerated offenses that can constitute crimes against humanity. The ICC Statute also lists: extermination, enslavement, deportation and forcible transfer of population, imprisonment, persecution, enforced disappearance, apartheid, and “other inhumane acts.” ICC Statute, article 7(1). 261 See, e.g., Prosecutor v. Naletilic and Martinovic, International Criminal Tribunal for the former Yugoslavia (ICTY), Trial Chamber, March 31 2003, par. 235 (“The population against whom the attack is directed is considered civilian if it is predominantly civilian”); Prosecutor v. Akayesu, International Criminal Tribunal for Rwanda (ICTR), Trial Chamber, September 2, 1998, par. 582 (“Where there are certain individuals within the civilian population who do not come within the definition of civilians, this does not deprive the population of its civilian character”); Prosecutor v. Jelisic, ICTY Trial Chamber, December 14, 1999, par. 54 (“The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.”). 262 See Naletilic and Martinovic, para. 235. 263 See Prosecutor v. Tadic, ICTY Trial Chamber, para. 646 (“it is now well established that…the acts…can…occur on either a widespread basis or in a systematic manner. Either one of these is sufficient to exclude isolated or random acts.”). 264 Akayesu defined widespread as “massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims,” Prosecutor v. Akayesu, ICTR Trial Chamber, September 2, 1998, para. 579; see also Kordic and Cerkez, ICTY Trial Chamber, February 26, 2001, para. 179; Kayishema and Ruzindana, ICTR Trial Chamber, May 21, 1999, para. 123. 265 Tadic, para. 648. In Kunarac, Kovac and Vokovic, the Appeals Chamber stated that “patterns of crimes— that is the non-accidental repetition of similar criminal conduct on a regular basis—are a common expression of [a] systematic occurrence.” Para. 94. 266 Akayesu, para. 580. 267 See Blaskic, ICTY Trial Chamber, March 3, 2000, para. 204 268 See Prosecutor v. Kupreskic et al., ICTY Judgment, January 14, 2000, para. 556. 269 See Kupreskic et al., ICTY Trial Chamber, January 14, 2000, para. 556: “[T]he requisite mens rea for crimes against humanity appears to be comprised by (1) the intent to commit the underlying offence, combined with (2) knowledge of the broader context in which that offence occurs.” See also Tadic, ICTY Appeals Chamber, para. 271; Kayishema and Ruzindana, ICTR Trial Chamber, May 21, 1999, paras. 133-134. 270See Blaskic, ICTY Trial Chamber, March 3, 2000, para. 257. Blaskic (paras. 258-259) listed factors from which could be inferred knowledge of the context: [a] the historical and political circumstances in which the acts of violence occurred; [b] the functions of the accused when the crimes were committed; [c] his responsibilities within the political or military hierarchy; [d] the direct and indirect relationship between the political and military hierarchy; [e] the scope and gravity of the acts perpetrated; [f] the nature of the crimes committed and the degree to which they are common knowledge. 271 See, e.g., UN General Assembly Resolution 3074, “Principles of international cooperation in the detention, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity,” December 3, 1973. Under the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, to which Ethiopia is a party, the same obligation applies with respect to individuals who have committed acts of torture, irrespective of whether such acts are also classified as crimes against humanity. |