On November 4, 2020, Ethiopian Prime Minister Abiy Ahmed appeared on state television and acknowledged that he ordered the Ethiopian National Defense Forces (ENDF) to commence operations against the Tigray People’s Liberation Front (TPLF) in response to what he described as attacks by TPLF forces on Ethiopian military bases and federal forces in the regional capital of Mekelle, and at other camps in the Tigray region.
The TPLF, the ruling party administering the northern region of Tigray in Ethiopia, acknowledged that it took over the assets of the Ethiopian military’s Northern Command based in Tigray. Subsequent to launching military operations, the Prime Minister’s Office also announced a six-month state of emergency throughout the Tigray region. In a televised broadcast days later, Abiy announced that the Ethiopian military had destroyed weaponry near Mekelle.
The TPLF dominated Ethiopian politics for almost three decades as part of a ruling coalition, which was responsible for serious human rights violations, before Abiy assumed office in April 2018. Aside from administering and governing the Tigray region, the TPLF also purportedly controls a large regional paramilitary police force as well as local militia, which the Ethiopian Constitution allows by empowering regional states to establish and administer police and security in their respective regions.
While a shutdown of internet and phone communications, as well as severe access restrictions to the Tigray region have limited the ability of independent monitors and journalists to document and report on the hostilities and the human rights situation in Tigray, information on the parties involved, and their capacity has slowly emerged.
Ethiopian government military forces, reportedly alongside Amhara regional special forces and Amhara militias, are engaged in hostilities with Tigray regional forces. Militia forces in Ethiopia often refer to community security personnel who are not part of the regular police forces of the region.
The fighting follows a year of growing tensions between the federal government and the Tigray authorities. The situation worsened after the federal government on November 21, 2019, reconfigured the ruling coalition, into a single party and postponed highly anticipated national elections, citing Covid-19-related health risks. Several opposition parties condemned the decision, including the TPLF, which held its own regional elections in September, in defiance of the federal government’s decision.
The prime minister and other federal government officials have been characterizing the military operations in Tigray as a “law enforcement operation,” in order to “protect the constitution and restore the rule of law.”
But, since the outbreak of fighting on November 4, 2020 , the Ethiopian military has conducted ground operations and carried out airstrikes reportedly focused on targeting the military assets of the Tigray regional forces in several locations in Tigray.
At the same time, the TPLF has launched missile attacks and conducted ground operations against Ethiopian military as well as Amhara regional forces and militias.
Since the military operations began, the Ethiopian government has made territorial gains in Tigray by seizing key military and civilian installations in the western Tigray region, as well as in other territories, the full control over which are difficult to independently verify.
The following question-and-answer document focuses on existing and emerging international law issues in the Ethiopia conflict. In accordance with Human Rights Watch’s institutional mandate, the organization maintains a position of neutrality on issues concerning the legitimacy of resorting to armed force. Human Rights Watch’s most useful role is to encourage all sides in armed conflicts to abide by the laws of war.
- How does international law categorize the conflict in Ethiopia?
- What law is applicable to the fighting in Ethiopia and who is bound by it?
- What are the basic principles of the laws of war?
- Does international human rights law still apply in Ethiopia?
- What are legitimate targets for military attacks?
- What kinds of attacks are prohibited?
- What are the obligations of parties to the conflict regarding fighting in populated areas?
- Should belligerent parties warn civilians of attacks? What constitutes an “effective” warning?
- What obligations do parties to the conflict have to populations in need?
- What are the legal protections for hospitals, medical personnel and ambulances?
- Are parties to the conflict permitted to target infrastructure such as airports, roads, and bridges?
- Do radio and television stations have special protection from attack?
- Are internet and phone shutdowns in conflict areas lawful?
- Do journalists have special protection from attack?
- What obligations do warring parties have to property?
- What rights do people in custody have during an armed conflict?
- Who can be held responsible for violations of international humanitarian law?
- Who is primarily responsible for ensuring accountability for serious violations of international law?
- Can any war crimes or crimes against humanity committed in Ethiopia be tried before the International Criminal Court?
- Can other countries prosecute international crimes committed in Ethiopia?
1. How does international law categorize the conflict in Ethiopia?
International humanitarian law, or the laws of war, distinguishes between “international” and “non-international” armed conflicts. Under the Geneva Conventions of 1949, the laws concerning international armed conflicts apply to all cases of armed conflict between two or more states.
For a non-international armed conflict, three requirements must be met. First, there must be protracted violence or a sufficient degree of intensity in hostilities between the parties, measured by the weapons employed, duration, and other factors. Second, the violence must be conducted by government forces and one or more non-state armed groups, or between two or more non-state armed groups. For the purposes of international law, the armed groups must exhibit sufficient organization and control to be capable of sustaining military operations and adhering to international humanitarian law, so they can be considered “parties” to the conflict.
As a practical matter, international humanitarian law guiding the means and methods of warfare is largely the same whether an international or non-international armed conflict
One key difference is that during an international armed conflict, captured soldiers from national armed forces and associated militias must be given the full protections afforded prisoners-of-war. In a non-international armed conflict, persons deprived of liberty must be treated humanely in all circumstances.
Human Rights Watch is of the view that the hostilities between Ethiopian government forces and Tigray regional forces constitutes an internal, non-international armed conflict. Even if it is confirmed that Eritrea is involved in the conflict in Ethiopia, the fighting does not involve one state engaged in armed conflict with another state, so it is not an international armed conflict. Instead, the legal regime for a non-international armed conflict applies.
The TPLF operates under an identified command structure, has demonstrated the capacity to exercise effective control over defined territories as described above, and has access to weaponry that enables its forces to mount effective military operations and sustain hostilities.
Despite the communications shutdown, official statements by both parties reveal that TPLF forces are well organized and capable of sustaining military operations.
Reports and statements also point to the hostilities having reached a sufficient degree of intensity to be considered an armed conflict, given repeated reports of armed confrontations and spread over the region of Tigray, reports of the weapons used, the damage to towns and infrastructure, and the number of Ethiopian civilians fleeing into neighboring Sudan. TPLF forces have also used missiles against a number of locations in the neighboring Amhara region and in Eritrea. In their operations, Ethiopian government forces have used military aviation and threatened to use variety of heavy weapons such as tanks and artillery in Tigray.
Some of the hostilities that attest to the intensification of the conflict include:
- On November 6, the Ethiopian government announced a round of airstrikes around Mekelle and claimed that the operation destroyed rockets and other heavy artillery;
- On November 7, shelling along the border of the Amhara and Tigray region killed 6 and reportedly wounded over 60 combatants from Tigray and Amhara forces;
- On November 14, TPLF officials acknowledged launching rockets at Eritrea’s capital, Asmara, which hit the city’s airport, as well as attacks on Bahir Dar and Gondar airports in the Amhara region of Ethiopia.
As of November 24, over 40,000 people had fled the Tigray region into neighboring Sudan due to hostilities and the deteriorating living conditions, and scores of people have been killed and wounded, including civilians.
2. What law is applicable to the fighting in Ethiopia and who is bound by it?
The non-international armed conflict in Tigray is between the Ethiopian military and Amhara regional forces and militias on side, and TPLF special forces and regional militias on the other. The armed conflict is governed by international humanitarian law set out in treaties and in the rules of customary international law.
The most important treaty law is Common Article 3 to the Geneva Conventions of 1949. Common Article 3, as discussed below, sets forth minimum standards for all parties to a non-international armed conflict. Ethiopia is also party to Protocol II to the Geneva Conventions, which provides further protections for combatants and civilians during non-international armed conflicts.
All parties to Ethiopia’s armed conflict—both the Ethiopian government and forces allied to it, and the TPLF forces—are responsible for complying with the requirements of international humanitarian law. Each party must respect and ensure respect for the laws of war, in the case of Ethiopia by its national defense forces, and in the case of all parties, by all individuals or groups acting under their direction or control.
Parties to a conflict must respect the requirements whether or not the opposing side abides by them. It also does not depend on the reason underlying the conflict or why any party has resorted to using force, whether government forces or non-state armed groups. And all parties to an armed conflict are held to the same standards, regardless of any disparity in the harm caused by alleged violations.
3. What are the basic principles of the laws of war?
International humanitarian law provides protections to civilians and other noncombatants from the hazards of armed conflict. It addresses the conduct of hostilities—the means and methods of warfare—by all sides to a conflict.
Foremost are the principles of “civilian immunity” and “distinction”—the requirement that civilians may never be the deliberate target of attack and that parties to a conflict must distinguish at all times between combatants and civilians. As discussed below, parties to the conflict are required to take all feasible precautions to minimize harm to civilians and civilian objects and to not carry out attacks that fail to discriminate between combatants and civilians, or would cause disproportionate harm to the civilian population.
Common Article 3 provides a number of fundamental protections for civilians and people who are no longer taking part in hostilities, such as captured combatants or who are unable to fight because of wounds or illness. It prohibits violence against them—particularly murder, cruel treatment, and torture—as well as outrages against their personal dignity and degrading or humiliating treatment.
4. Does international human rights law still apply in Ethiopia?
International human rights law remains in effect even during armed conflict situations.
Ethiopia is party to core human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Ethiopia is also party to regional human rights treaties, including the African Charter on Human and Peoples’ Rights and the African Union Convention Governing Specific Aspects of Refugee Problems in Africa.
These treaties outline guarantees for fundamental rights, many of which correspond to the rights to which combatants and civilians are entitled under international humanitarian law (for example, the prohibition on torture and inhuman and degrading treatment, the requirements for nondiscrimination, and the right to a fair trial).
While article 4 of the ICCPR permits some restrictions on certain rights during wartime or an officially proclaimed public emergency “threatening the life of the nation,” any reduction in rights during a public emergency must be of an exceptional and temporary nature, and limited “to the extent strictly required by the exigencies of the situation.”
On November 4, the Ethiopian government declared a state of emergency applicable to the Tigray region, but which may also be expanded beyond that territory. Ethiopian authorities are however still obligated to uphold certain fundamental rights—such as the right to life and the right to be secure from torture and other ill-treatment, the prohibition on unacknowledged detention, the duty to ensure judicial review of the lawfulness of detention, and rights to a fair trial—must always be respected, even during a public emergency.
Similarly, the ICESCR obliges the Ethiopian government to ensure that the rights to food, water, health, housing, and education are met even during a situation of emergency and armed conflict.
5. What are legitimate targets for military attacks?
The laws of war limit attacks to “military objectives.” Military objectives are personnel and objects that are making an effective contribution to military action and whose destruction, capture, or neutralization offers a definite military advantage. This would include enemy fighters, weapons and ammunition, and objects being used for military purposes. While the laws of war recognize that civilian casualties are inevitable during armed conflict, it imposes a duty on parties to the conflict, at all times, to distinguish between combatants and civilians, and to target only combatants and other military objectives.
Combatants include members of a country’s armed forces and commanders and fighters in non-state armed groups. They are subject to attack at all times during hostilities unless they are captured or incapacitated.
Civilians lose their immunity from attack when and only for such time as they are “directly participating in hostilities.” The International Committee of the Red Cross says that the laws of war distinguish members of the organized fighting forces of a non-state party, who may be targeted when there is fighting, from those who assume exclusively political, administrative or other non-combat functions, who may not be targeted even when there is fighting. An individual recruited, trained and equipped by a non-state armed group is considered integrated into that group even before carrying out a hostile act at a time of fighting.
The laws of war also protect “civilian objects,” which are defined as anything not considered a military objective. Direct attacks against civilian objects—such as homes, apartments, businesses, places of worship, hospitals, schools, and cultural monuments—are prohibited unless they are being used for military purposes and thus become military objectives. This would be the case if military forces are deployed among what are normally civilian objects. Where there is doubt about the nature of an object, the warring party must presume it to be civilian.
6. What kinds of attacks are prohibited?
Direct attacks on civilians and civilian objects are prohibited. The laws of war also prohibit indiscriminate attacks, which strike military objectives and civilians or civilian objects without distinction. Examples are attacks that are not directed at a specific military objective or that use weapons that cannot be directed at a specific military objective.
Prohibited indiscriminate attacks include area bombardment -- attacks by artillery or other means that treat as a single military objective a number of clearly separated and distinct military objectives in an area containing a concentration of civilians and civilian objects.
Military commanders must choose a means of attack that can be directed at military targets and will minimize incidental harm to civilians. If the weapons used are so inaccurate that they cannot be directed at military targets without imposing a substantial risk of civilian harm, then they should not be deployed.
Attacks that violate the principle of proportionality are also prohibited. An attack is disproportionate if it may be expected to cause incidental loss of civilian life or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated from the attack.
7. What are the obligations of parties to the conflict regarding fighting in populated areas?
On November 22, an Ethiopian military spokesman, Col. Dejene Tsegaye, appeared on state-run TV and warned residents of Tigray’s capital, the most populated city in the region, to “save themselves,” in advance of a planned artillery attack against TPLF groups in the city. There are also reports that the TPLF have deployed its forces in heavily populated areas.
While the laws of war do not prohibit fighting in urban areas, the presence of many civilians places greater obligations on parties to the conflict to take steps to minimize harm to civilians, including through its choice of weapons.
Parties to a conflict are required to take constant care during military operations to spare the civilian population and to “take all feasible precautions” to avoid or minimize the incidental loss of civilian life and damage to civilian objects. These precautions include doing everything feasible to verify that the objects of attack are military objectives and not civilians or civilian objects and giving “effective advance warning” of attacks when circumstances permit.
Even when directed at a military objective, so-called explosive weapons with wide area effects, such as rockets and heavy artillery, when used in populated areas foreseeably inflict high numbers of civilian casualties and substantial damage to civilian objects and infrastructure, causing indiscriminate or disproportionate civilian harm.
Forces deployed in populated areas must avoid locating military objectives near densely populated areas and endeavor to remove civilians from the vicinity of military activities.
Belligerents are prohibited from using civilians to shield military objectives or operations from attack. “Shielding” refers to purposefully using the presence of civilians to protect military forces or areas, making them immune from attack.
The attacking party is not relieved of its obligation to take into account the risk to civilians simply because it considers the defending party responsible for locating legitimate military targets within or near populated areas. The use of heavy artillery (weapons with a wide blast radius) and other indirect-fire artillery without adequate spotting (weapons for which the target is wholly unseen) against military objectives in populated areas heightens concerns of unlawful indiscriminate and disproportionate attacks.
8. Should belligerent parties warn civilians of attacks? What constitutes an “effective” warning?
On November 6, after carrying out initial airstrikes in the Tigray region, Prime Minister Abiy warned Tigray residents to “limit group movement in cities.” On November 22, an Ethiopian military warned residents “to save themselves” in Mekelle in advance of a planned military assault on the regional capital using tanks. TPLF officials have also carried out rocket attacks in Eritrea after it warned that it would do so in retaliation for purported attacks in the region.
The laws of war obligate warring parties to give "effective advance warning" of attacks that may affect the civilian population so long as circumstances permit. What constitutes an "effective" warning depends on the circumstances. Such an assessment would take into account the timing of the warning, the ability to reach the relevant population, and the ability of the civilians to leave the area. A warning that does not give civilians adequate time to leave for a safer area would not be considered "effective."
Civilians who do not evacuate following warnings are still fully protected by international law. Otherwise, warring parties could use warnings to cause forced displacement, threatening civilians with deliberate harm if they did not heed the warnings. Moreover, some civilians are unable to heed a warning to evacuate, for reasons of health or disability, fear, or lack of a safe place to go. So even after warnings have been given, attacking forces must still take all feasible precautions to avoid loss of civilian life and property. This includes canceling an attack when it becomes apparent that the target is civilian or that the civilian loss would be disproportionate to the expected military gain.
Despite the Ethiopian military’s warnings to residents, warnings alone do not absolve the government of its obligation to take constant care to protect civilians, particularly when using airpower and heavy weaponry in urban areas where thousands of people reside who may not be able to flee to more secure areas.
9. What obligations do parties to the conflict have to populations in need?
Since the outbreak of fighting, access to the Tigray region remains blocked by road and air. Before the fighting began, reports by humanitarian agencies highlighted that food and fuel were already in short supply, with over 600,000 people relying on food aid to survive. The region is also the place of residence for 100,000 internally displaced people and 100,000 Eritrean refugees. In April, 44 percent of those living in refugee camps are children.
In the Tigray region, humanitarian actors have been unable to provide essential services to vulnerable and affected populations and have underscored the effects of existing access restrictions. An additional concern is the lasting harm to the civilian population the longer the restrictions last.
Humanitarian agencies warned on November 24 that continued limitations on access and essential goods such as food, water, fuel, electricity, and medical supplies risked compounding the suffering of a population already in need. The military operations in Tigray have also forced over 40,000 Ethiopians to flee to neighboring Sudan.
Under international humanitarian law, parties to a conflict must allow and facilitate the rapid and unimpeded passage of impartially distributed humanitarian aid to the population in need. The parties must consent to allow relief operations and may not refuse such consent on arbitrary grounds. Actions that deliberately impede relief supplies are strictly prohibited.
Parties may take steps to control the content and delivery of humanitarian aid, such as to ensure that consignments do not include weapons or ammunition that may assist belligerent forces. However, any military advantage gained by such restrictions must be weighed against the harm and impact to civilian populations.
In addition, international humanitarian law requires belligerent parties to ensure the freedom of movement of humanitarian workers essential to the exercise of their functions. This movement may be restricted only temporarily for reasons of imperative military necessity.
10. What are the legal protections for hospitals, medical personnel and ambulances?
On November 18, the International Committee of the Red Cross issued a statement that three ambulances run by the Ethiopian Red Cross were attacked.
Under the laws of war, medical units are civilian objects that have special protections. They include hospitals, clinics, medical centers, and similar facilities, whether military or civilian. While other presumptively civilian structures become military objectives if they are being used for a military purpose, hospitals lose their protection from attack only if they are being used, outside their humanitarian function, to commit “acts harmful to the enemy.”
Several types of acts do not constitute “acts harmful to the enemy,” such as the presence of armed guards, or when small arms from the wounded are found in the hospital. Even if military forces misuse a hospital to store weapons or shelter able-bodied combatants, the attacking force must issue a warning to cease this misuse, setting a reasonable time limit for it to end, and attacking only after such a warning has gone unheeded.
Under the laws of war, doctors, nurses and other medical personnel must be permitted to do their work and be protected in all circumstances. They lose their protection only if they commit, outside their humanitarian function, acts harmful to the enemy.
Likewise, ambulances and other medical transportation must be allowed to function and be protected in all circumstances. They lose their protection only if they are being used to commit acts harmful to the enemy, such as transporting ammunition or healthy fighters.
11. Are parties to the conflict permitted to target infrastructure such as airports, roads, and bridges?
Ethiopian government officials accused TPLF forces of having destroyed Axum airport as well as bridges in Tigray. TPLF forces have also carried out rocket attacks on Bahir Dar and Gondar airport in the Amhara region, and at Asmara’s airport in Eritrea.
Civil airports, roads, and bridges are civilian objects that become military objectives subject to attack if they are used for military purposes or military objectives are located on or within them.
Even then, the rule of proportionality applies, requiring the parties to the conflict to weigh the short- and long-term harm for civilians against the military advantage served. The party to the conflict must consider all ways of minimizing the impact on civilians; and they should not attack if the expected civilian harm outweighs the definite military advantage.
12. Do radio and television stations have special protection from attack?
Attacks on broadcast facilities used for military communications are legitimate under the laws of war. Civilian television and radio stations are legitimate targets only if they meet the criteria for a legitimate military objective: that is, if they are used in a way that makes an “effective contribution to military action” and their destruction in the circumstances ruling at the time offers “a definite military advantage.”
For example, broadcast facilities could become military targets if they are used to send military orders or otherwise concretely to advance military operations. However, civilian broadcasting facilities do not become legitimate military targets simply because they broadcast pro-government or pro-opposition propaganda. It is unlawful to attack facilities that solely shape civilian opinion—these facilities do not directly contribute to military operations.
Should broadcast facilities become legitimate military objectives because of their use to transmit military communications, the principle of proportionality in attack must still be respected. This means that attacking forces should verify at all times that the risks to the civilian population in undertaking any such attack do not outweigh the anticipated military benefit. They should take special precautions with buildings in urban areas, including giving advance warning of an attack whenever possible.
International law does not prohibit opposition forces from occupying broadcast facilities (or other civilian structures except hospitals) and making use of them. However, the presence of opposition fighters or the use of the broadcast facilities for military purposes makes the facilities military objectives subject to attack.
13. Are internet and phone shutdowns in conflict areas lawful?
Following the outbreak of hostilities on November 4, phone and internet communications were swiftly cut in the Tigray region. Humanitarian agencies have highlighted that access and telecommunications limitations in most parts of Tigray have made it difficult to assess the full impact of ongoing hostilities on the civilian population and the overall security of humanitarian workers in the region.
Shutting down the internet during a conflict, including mobile data, which is regularly used for both civilian and military purposes, would need to take into account the basic principles of the laws of war, including of necessity and proportionality. The principle of necessity permits measures that accomplish a legitimate military objective that are not otherwise prohibited by international humanitarian law. Shutting down the internet may serve a legitimate military purpose, such as denying belligerent forces a means of communicating with one another and carrying out attacks. However, the principle of proportionality prohibits actions in which the expected civilian harm is excessive in relation to the anticipated military advantage.
Internet and phone shutdowns can cause considerable harm to the civilian population, including leading to possible injury and death by preventing civilians from communicating with each other about safety considerations, access to medical facilities, and sources of food and shelter. They also hinder the work of journalists and human rights monitors who can provide information on the situation on the ground, including the reporting of possible laws-of-war violations. The restrictions importantly hamper the ability of humanitarian agencies to assess and provide assistance to populations at risk. The lack of information regarding the conditions and circumstances facing the affected population may also increase the likelihood of injury and death.
A complete shutdown of internet and phone communications during an armed conflict to over five million people in Tigray would cause various degrees of harm to the population affected, especially if the conflict escalates. This could amount to a form of collective punishment by imposing penalties on people without a clear lawful basis.
Similarly, under international human rights law, governments have an obligation to ensure that internet-based restrictions are provided by law and are a necessary and proportionate response to a specific security concern. General shutdowns violate multiple rights, including the rights to freedom of expression and information, and hinder others, including the right to free assembly. In their 2015 Joint Declaration on Freedom of Expression and Responses to Conflict Situations, United Nations experts and rapporteurs declared that, even in times of conflict, “using communications ‘kill switches’ (i.e. shutting down entire parts of communications systems) can never be justified under human rights law.”
14. Do journalists have special protection from attack?
Journalists are civilians and may never be targets of an attack unless they are taking direct part in hostilities. Journalists may be subject to any legitimate limitations on rights, such as freedom of expression or freedom of movement, imposed in accordance with law and to the extent strictly required by the exigencies of the situation. But they may not be targeted for arrest, detention, or other forms of punishment or retaliation simply for doing their work as journalists.
15. What obligations do warring parties have to property?
During armed conflicts, parties are prohibited from destroying or confiscating private or public property unless absolutely necessary for military operations. In areas they control, a party may requisition property to cover the immediate needs of its forces by paying for it. However, in non-international armed conflicts, property including food, relief and medical supplies cannot be requestioned if it would deprive the population of goods and objects needed for their survival. International law does not prohibit parties in non-international armed conflicts from seizing military weapons and equipment belonging to the adversary.
Pillage, the looting, plunder or theft of property for either personal or a warring party’s benefit, is prohibited and amounts to a war crime under the Rome Statute of the International Criminal Court and customary international law. Ethiopia’s Criminal Code in article 273 imposes prison sentences on anyone who “organizes, orders or engages in looting [or] pillage, economic spoliation or the unlawful destruction or removal of property on the pretext of military necessity.” Civilians as well as combatants can be held liable for carrying out pillage. Deliberate attacks on cultural property, including historical monuments and buildings dedicated to art and religion, are also war crimes, unless being used for military purposes.
16. What rights do people in custody have during an armed conflict?
Common Article 3 to the four Geneva Conventions of 1949, applicable during non-international armed conflicts, requires protecting anyone in custody, including captured combatants and civilians, against “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” No sentences may be handed down except by a “regularly constituted court” that meets international fair trial standards.
The ban against torture and other ill-treatment is one of the most fundamental prohibitions in international human rights and humanitarian law. No exceptional circumstances may justify torture. Ethiopia’s human rights treaty obligations, discussed above, underline that torture is banned under all circumstances, even during recognized states of emergency, and requires investigation and prosecution of those responsible for torture. When committed as part of a widespread and systematic attack against a civilian population, torture can constitute a crime against humanity under customary international law and the Rome Statute, the treaty that established the International Criminal Court (ICC).
Anyone deprived of liberty must be provided with adequate food, water, clothing, shelter, and medical attention. Detained women must be held in quarters separate from those for men. Children deprived of their liberty, unless with their families, must have quarters separate from adults.
Under fundamental human rights law, which applies even during a publicly declared emergency, detainees are entitled to judicial review of the legality of their detention, and all the rights to a fair trial, including the right to be tried and convicted for a criminal offense only by a court of law. Unacknowledged detention is prohibited at all times.
17. Who can be held responsible for violations of international humanitarian law?
Serious violations of international humanitarian law committed with criminal intent—that is, deliberately or recklessly—are war crimes. War crimes, listed in the “grave breaches” provisions of the Geneva Conventions and as customary law in the ICC statute and other sources, include a wide array of offenses for which individuals may be held criminally liable —deliberate, indiscriminate, and disproportionate attacks harming civilians; hostage taking; using human shields; pillage; and imposing collective punishment, among others. Individuals also may be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, aiding, or abetting a war crime.
Responsibility also may fall on people planning or instigating a war crime. 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.
18. Who is primarily responsible for ensuring accountability for serious violations of international law?
On November 9, hundreds of civilians were killed and more wounded in Mai Kadra town in western Tigray. Amnesty International and the national Ethiopian Human Rights Commission each documented the incident and found the attacks may amount to serious violations of international law, including war crimes.
Ensuring justice for serious violations is, in the first instance, the responsibility of the country whose nationals are implicated in the violations.
Governments have an obligation to investigate serious violations that implicate their officials or other people under their jurisdiction. The government must ensure that military or domestic courts or other institutions impartially investigate whether serious violations occurred, identifying and prosecuting the individuals responsible for those violations in accordance with international fair-trial standards, and imposing punishments on individuals found guilty that are commensurate with their deeds.
While non-state armed groups do not have the same legal obligation to prosecute violators of the laws of war within their ranks, they are nonetheless responsible for ensuring compliance with the laws of war and have a responsibility when they do conduct trials to do so in accordance with international fair trial standards.
19. Can any war crimes or crimes against humanity committed in Ethiopia be tried before the International Criminal Court?
The International Criminal Court (ICC) is a permanent international court with a mandate to investigate, charge, and try people suspected of genocide, crimes against humanity, and war crimes committed after July 1, 2002. However, it can only exercise jurisdiction over these crimes if:
- The crimes occurred in the territory of a country that is a member of the court;
- The person suspected of the crimes is a citizen of a country that is an ICC member;
- A country that is not a party to the ICC treaty accepts the court’s authority for the crimes in question by submitting a formal declaration to the court; or
- The UN Security Council refers the situation to the ICC prosecutor.
Ethiopia is not a state party to the Rome Statute, the ICC treaty. Therefore, in the absence of the Ethiopian government ratifying the statute or accepting the jurisdiction of the court through a declaration, the ICC could only obtain jurisdiction over crimes in Ethiopia if the United Nations Security Council refers the situation there to the court.
20. Can other countries prosecute international crimes committed in Ethiopia?
Certain categories of grave crimes in violation of international law, such as war crimes and torture, are subject to “universal jurisdiction,” which refers to the ability of a country’s domestic judicial system to investigate and prosecute certain crimes, even if they were not committed on its territory, by one of its nationals, or against one of its nationals.
Certain treaties, such as the 1949 Geneva Conventions and the Convention against Torture, obligate states parties to extradite or prosecute suspected offenders who are within that country’s territory or otherwise under its jurisdiction.
Under customary international law, it is also generally agreed that countries are allowed to prosecute those responsible for other crimes, such as torture or crimes against humanity, wherever these crimes took place.