Ethiopia: Seven Frequently Asked Questions about the war on Tigray

International media and regional analysts are referring to the conflict in the Tigray state as a civil war. The Ethiopian government insists it is a law enforcement operation. As the war and the debate over what to call it rage, the misplaced priorities of the warring parties and the government’s refusal to heed local and international calls for negotiation is worsening the humanitarian crisis.

The Abiy administration appears more concerned about crisis communication—setting up a fact-checking website and wasting time and resources on PR—than saving lives and averting a deepening crisis.

1. Is the conflict in Tigray a civil war, or a law enforcement operation?

The conflict in Ethiopia could be characterized as ‘internal armed conflict’, ‘intrastate war’, or a ‘civil war.’ However, these terms have no legal meaning so to speak. Under International Humanitarian Law (IHL), which governs armed conflicts, hostilities occurring within the territory of a particular state are technically referred to as ‘Non-international Armed Conflict” (NIAC).

The Geneva Convention Common Article 3 defines NIAC as “… armed conflict, not of an international character occurring in the territory of one of the High Contracting Parties…’’ International tribunals have elaborated this definition of NIAC. For example, in The Prosecutor v Dusko Tadić, the International Criminal Tribunal for the Former Yugoslavia interpreted NIAC as a “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.”

So, is the war on Tigray a NIAC? First of all, the characterization of armed conflict and subsequent deployment of humanitarian law is not defined by the subjective positions of belligerent parties nor by the description of the international media outlets. It should be based on the objective assessment of the prevailing reality on the ground. Thus, what Abiy’s government chooses to call the conflict does not manifestly change the application and interpretation of the law. Crucially, both parties have used the term “war” in describing the ongoing battle.

Under international law, the key threshold is that the hostility should surpass riot or disturbances (which is controlled by regular law enforcement agencies such as riot police, crowd control patrol, traffic police, etc).

The fighting in Tigray is being prosecuted between two parties who have deployed armed forces: The federal military and Amhara militia on one side and the Tigray special police and militia on the other side. Most importantly, the party fighting the armed forces of a state party to the Geneva Convention, namely Ethiopia, is a regional government that controls Tigray and its territories and can carry out sustained and concerted military operations. In common parlance, Ethiopia entered into a civil war on November 4, 2020. As such, the conduct of the ongoing war would be regulated as per the Geneva Conventions and other applicable rules of IHL (more on this later). In this piece, NIAC and Civil war are used interchangeably for simplicity.

2. What conditions or thresholds have to be met to describe a conflict as a civil war?

International courts and scholars based on IHL treaties have suggested that to distinguish a civil war from other forms of violence, such as internal disturbances and tensions, riots, or acts of banditry, a certain threshold has to be reached. Accordingly, three common but not necessarily cumulative conditions are provided to assess the occurrence of a civil war. These are:

a. Intensity of hostility 

This entails that the confrontation compels the government to deploy military force against the non-state actor instead of regular police forces. Other indicative factors for civil war include the number, duration, and intensity of individual battles; the type of military equipment and weapons used; the number of persons and types of forces participating in the fighting; the number of casualties and the extent of material destruction caused; the number of civilians fleeing conflict zone and so forth.

b. Organizational capacity 

Since government authorities are presumed to have legally constituted armed forces, they easily meet the organizational capacity criteria. That is why less scrutiny is applied to assessing the organizational capacity of the government, unlike their insurgent counterparty. Accordingly, the organizational requirement refers to the fact that a non-state actor that is a party to the conflict should have organized armed forces. Scholars and courts have further noted that organized armed forces must be under a certain command structure and of the capability to launch sustained military operations. In the case of the armed groups fighting on the side of the Tigray Regional State, there is no question that they are organized armed groups under responsible command. According to Foreign Policy, “Tigray’s regional special forces…are led by senior Tigrayan officers forced into retirement by Abiy, plus a standing body of reserve special forces made up of military-trained militia and armed farmers—together have an estimated total of up to 250,000 armed fighters.”

c. Territorial control 

Although territorial control is not required for a conflict to be regarded as a civil war, conflicts in which non-governmental armed groups control territory which enables it to carry out sustained and concerted military operations are required to implement rules of IHL.

Additional Protocol II to the Geneva Conventions consolidates the provisions of Common Article 3 of the Conventions by introducing the element of territorial control. The element of territorial control is conclusive evidence of the occurrence of NIAC (civil law) which triggers the application of a broader range of IHL rules beyond the provisions of Common Article 3.

IHL confers binding legal obligations on all parties, equally. Crucially, the failure to uphold humanitarian law entails legal accountability. Thus, the parties to the conflict are advised to respect and ensure respect for pertinent rules of engagement in the conduct of hostilities and beyond.

d. Are those conditions met in the war on Tigray?

The conflict in Tigray meets all requirements for the existence of NIAC. The intensity threshold is satisfied because both parties have acknowledged continued high-intensity military confrontation; Federal armed forces are deployed to fight TPLF insurgents. Both parties have also admitted the use of warplanes and heavy artillery against the other.

Tigray forces easily satisfy the organizational capacity criteria. For one, it is public knowledge that Tigray has combat-ready special police and militia, now estimated at 250,000 personnel. Furthermore, a significant number of the Northern Command units have defected to Tigray. Both parties have also admitted that Tigray forces seized heavy and high caliber weaponry from the Command.

Finally, Tigray forces control a significant chunk of land across the state to meet the territorial control requisite. If the conflict drags on, there could be loss or gain of territory. In sum, since the conflict meets all the conditions for NIAC or civil war, both parties must uphold international law and cease hostility and enter into a dialogue.

3. What are other applicable national and international laws that regulate this conflict?

The conflict in Tigray is regulated by pertinent international law and the domestic legal regime. Primarily, the Geneva Convention Common Article 3 and Additional Protocol II apply in this conflict. In addition to IHL, the International Human Rights Law (IHRL) also applies and should complement the protections and limitations provided under the former. The International Court of Justice (ICJ) has authoritatively interpreted the co-application of the IHL and the IHRL during the conduct of hostilities. Thus, both belligerent parties are required to respect both the IHL and the IHRL in the territories under their jurisdictions.

Apart from international law, belligerent parties are required to respect and enforce domestic law. In particular, both parties to the conflict should respect non-derogable constitutional human rights and make sure not to deliberately attack civilians and civilian objects. They should also ensure access to humanitarian services by establishing a humanitarian corridor.

4. What are some of the obligations that the belligerent parties should comply with?

First, IHL is not a pacifist pact. Nor does it outlaw war. It rather tries to mitigate the effects of armed conflict by providing a limit on means and methods of warfare. And granting protection to civilians and civilian objects and those who no longer partake in hostilities (such as prisoners of war, wounded enemy fighters, etc.). Hence, IHL rules and principles seek to guarantee basic humane treatment to each person that finds him or herself in the power of the enemy and require that persons wounded in the hostilities, including enemy combatants, should be given medical treatment and humanitarian services impartially.

As a general rule, both the government and TPLF forces should comply with these and other rules and principles of warfare. Other obligations include the prohibition of direct attacks against civilians and civilian objects; the prohibition of indiscriminate attacks; the obligation to respect the principle of distinction in carrying out the attack; the obligation to respect the principle of proportionality in the attack; and the obligation to take all reasonably feasible precautions in planning and executing military operations to avoid or minimize collateral damages.

5. Are there legal consequences for violating these obligations?

As a matter of fact, each belligerent party is required to respect and ensure respect for these rules and principles by all those acting on its instructions, or under its direction or control. It should also be clear that the obligation to uphold the IHL rules and principles does not depend on reciprocity and should be enforced irrespective of compliance or lack thereof by the adversary.

Ultimately, failure to uphold IHL rules and committing grave breaches of the Geneva Conventions or other serious violations of IHL rules and principles could entail war crimes. Both government forces and rebel forces could be charged and prosecuted for a war crime. Primarily, these crimes are prosecuted in domestic courts. But an alleged war crime case may also be brought before the International Criminal Court (ICC) provided that the crimes are committed on the territory of the state party to the Rome Statute.

Since currently, Ethiopia is not a signatory to the Rome Statue, it may be only through the United Nations Security Council referral mechanism that ICC would exercise its jurisdiction. Furthermore, some countries have established what is known as universal jurisdiction to prosecute alleged war crimes or crimes against humanity committed outside their territories. Sweden is a case in point. Finally, it should be emphasized that these crimes are not barred by a period of limitation. That is to say, a suspected war criminal could be brought to justice irrespective of the duration of time. This principle has been laid down under Article 28 of the Ethiopia Constitution.

6. The Ethiopian government claims that the war will be over soon. Analysts are less sanguine. TPLF has been preparing for this confrontation for at least two years. Unlike the 70s and 80s, they now control a sizable territory, maintain all the trappings of a state, and possess significant military hardware. In this context, is the government’s optimism and confidence justified?

In all likelihood, this is going to be a protracted conflict. Consider the following factors that may complicate and prolong the conflict:

a. Balance of power 

Unlike other regional states, the Tigray region has a relatively strong security posture. It commands more than 250,000 armed personnel composed of the special police force, militia, and ex-soldiers. It has gotten a significant boost with the recent defection of members of the Northern Command. In addition to its regular stockpile, Tigray has overtaken the weapons and military assets of the Northern Command, which is the best and most equipped division and for the last two years, it served as a deterrence to the Eritrean threat.

b. Developments across the country 

The war in Tigray is not the only security problem facing Ethiopia. Protests and resistance continue in other areas. For example, protests and low-level insurgency persist in the restive Oromia region. The mounting statehood demand in the South continues to grow. Some have turned bloody. A recent border skirmish between Afar and Somali regions has left scores dead and tension remains high. Violent communal conflict in the Benishangul Gumuz region continues to deepen. As federal troops and special forces from other states head to Tigray, a security vacuum in other parts of the country is inevitable and could be exploited by protesters or rebel groups.

c. Irredentism

The Tigray conflict could easily degenerate into inter-ethnic conflict. Amhara elites and regional leaders are vowing to eliminate TPLF and reclaim lost territories. Tigrayans perceive this as an existential matter. Thus, there is a high likelihood that the conflict could take the Tigray-Amhara ethnic turn and may become ugly.

d. Regional factor 

The Tigray conflict has already taken a regional dimension. Analysts have rightly warned that the civil war in Ethiopia would be transformed into the ‘East African World War’. The emerging reality supports what these pundits foretold. Eritrea is allegedly involved in the conflict by siding with Abiy. In retaliation, TPLF forces have fired rockets into the Eritrean capital. Either way, Eritrea has become a party to this conflict. So far, Sudan appears to have taken a neutral position but as the conflict drags on elements within the Sudanese security and political establishment may pick aside.

Al-Bashir loyalists and some of the old guard may be involved in the Tigray conflict to complicate relations with Ethiopia or tilt the balance of power within the fragile administration of Prime Minister Abdalla Hamdok. Similarly, Egyptians may use their Sudanese proxies to join this conflict to win more concessions from Ethiopia in the GERD negotiations.

On the eastern front, as Ethiopia scales back its non-AMISOM forces in Somalia, Al-Shabab and other spoilers may exploit the security vacuum and enhance attack on the Somali government and neighboring countries. Across the Red Sea, rival Gulf powers may pick a side and turn the Horn of Africa into a regional ‘theatre of the game of throne’.

e. Army integrity 

The national army is composed of members of ethnic groups on a proportional representation formula as envisaged in the constitution. During TPLF led EPRDF’s reign, Tigrayans controlled the top brass of the army. But the rank and file of the military are believed to be ethnically diverse. Abiy has removed or forced into retirement Tigrayans at the top of military leadership. Several Tigrayan generals have been fired, arrested, or demobilized since the conflict began. But ethnic Tigrayans still maintain an outsize representation, estimated to be around 30-40%, at the middle-level leadership. Most Tigray officers have either sided with TPLF or been laid off from the army.

This has created a leadership vacuum in the military so much so that Abiy has to call back retired army generals to lead the fight. There are unconfirmed reports that senior Oromo officers have shown reluctance to fight the Tigray war. In turn, Abiy has reportedly detained or forced them to take leave. So generally, the state of affairs within the military can be described as pro-war (mostly Amhara officers), Anti-war (mostly Tigrayan and some Oromo officers), and neutral (mostly Oromo and southern officers). This is on top of the defection or neutralization of the North Command. Hence, the upshot is that Abiy is fighting with a bent, if not broken, stick against a cohesive and nationalist regional force.

Taken together, the confidence and optimism of Abiy and his administration is either misguided war propaganda or informed by PP’s characteristic simpleton and performative belief that ‘if you wish it and it will happen.’

7. PP leaders insist that this operation is an attempt to end impunity and bring fugitives and corrupt human rights abusers to justice. Ironically, most, if not all, of the current leaders in Addis Ababa including PM Abiy Ahmed were part of the same system. Is TPLF alone in those abuses?

All EPRDF members are either principal actors or accomplices to the human rights violations and massive corruption that transpired over the last 27 years. In fact, they are jointly and equally liable for all wrongdoing committed under the EPRDF reign. There is no gainsaying that TPLF was a big boss in the ‘company’. But they were not alone. EPRDF members including Abiy were instrumental in aiding and abetting the rights abuses and chronic corruption. In short, all EPRDF members ate the same forbidden fruit together, although TPLF may have eaten more. Hence, all of them have indulged in the political scene.

One of the mishandlings of the transition period over the last 2 and half years was the misstep on transitional justice. In the beginning, it seemed as if justice was forsaken for peace. That is why people accepted the government’s apology and grudgingly ‘moved on.’ But it was clear that Abiy was never interested in accountability or reconciliation. He talked about these ideas to burn into the public consciousness as a reformer and progressive. Even the Peace and Reconciliation Commission he established was part of Abiy’s public relations exercise, and not a reflection of his genuine commitment for truth or reconciliation. But now if we need to talk about justice, we need to establish a transitional justice framework rather than waging a ‘war for justice.’

We need to undertake a comprehensive and independent investigation, truth-finding, and justice delivery. Otherwise selective, piecemeal and victor’s justice mentality will only exacerbate the pre-existing political condition and inter-ethnic animosity. We have seen before the failure of that approach during the Red Terror trials of Derg officials. This time around, we have to try something qualitatively different from what we are used to doing.

But before all of this can happen, we have to silence the gun and give peace a chance. War was not, is not, and won’t be an option or a solution. A comprehensive national dialogue would be the only way out of this simmering political predicament. We have had enough of war and conflict. Let us try peace, dialogue, and reconciliation and learn to settle political differences through talks, not tanks.