Widespread massacres, rape and forcible expulsion, compounded by famine, have marked the Tigray crisis. Given the recurring pattern of ethnic violence against the Tigrayan population by the alliance of federal Ethiopian, regional Amharan, and Eritrean forces, the risk of these mass atrocities amounting to genocide could be imminent.
Overview of the Humanitarian Crisis in Tigray
On 17 June 2021, the Integrated Food Security Phase Classification (IPC) released a report finding that over 350,000 people in Tigray, a region in Northern Ethiopia, are suffering from famine. This report captured the attention of members of diplomatic and humanitarian circles. Most notably the Irish Mission to the UN, and the US Ambassador to the UN, Linda Thomas-Greenfield who have called for the UN Security Council to take up the situation in Tigray on its agenda.
The crisis of food insecurity has been exacerbated by that the fact that Ethiopian and Eritrean soldiers have been blocking and cutting off humanitarian aid to Tigray’s starved central zone. A UN spokesperson estimates that about 5.2 million out of Tigray’s 5.7 million people are in need of food assistance, with US officials estimating that as many as 1.25 million people live in areas humanitarian workers cannot access.
Earlier in March the UN High Commissioner for Human Rights, Michelle Bachelet, called for an objective, independent assessment of the situation in Tigray, given “deeply distressing reports of sexual and gender-based violence, extrajudicial killings, widespread destruction and looting of public and private property by all parties.” Indeed reports over the past months have not only revealed a humanitarian emergency, but also atrocities, whose gravity has flown under the international community’s radar.
Reports of massacres and over 20 mass graves have emerged, with one humanitarian officer noting, “This could be like the former Yugoslavia. Ethiopians will be digging up mass graves for a decade.” According to locals, these gravesites may contain bodies of over 200 victims. The UN estimates around one million people having been displaced as a result of the ongoing violence in Tigray. Equally devastating are the reports of widespread commission of rape of Tigrayan women at“a level of cruelty beyond comprehension,” according to UN Special Representative on Sexual Violence in Conflict, Pramila Patten. Over 500 rape cases have been reported in Tigray clinics. Women recount soldiers drugging and gang-raping them, in some instances over the course of many days. One victim recounts her perpetrators declaring “A Tigrayan womb should never give birth,” as they brutally raped her.
Michelle Bachelet has rightfully expressed concerns about possible war crimes and crimes against humanity in Tigray. Looking at the state of food insecurity, mass scale internal displacement, ethnic violence and mass graves, the risk of genocide against the people of Tigray seems imminent.
This article seeks to examine whether the existing and escalating situation in Tigray would constitute genocide under international law. By exploring the political background and ethnic divides of the conflict in Tigray, the article seeks to determine whether a specific intent to destroy the people of Tigray as an ethnic group can be ascertained. The article will also look at the evidence of widespread massacres, sexual violence, and famine, as indicators of the risk of an ongoing genocide.
Political Background and Ethnic Divides in the Tigray Conflict
The present humanitarian crisis was caused by a political conflict between Ethiopian Prime Minister, Abiy Ahmed, and Tigray’s ruling party, the Tigray People’s Liberation Front (TPLF). On 3 November 2020, the TPLF attacked a military base, which prompted the Ethiopian government to launch a military offensive the following day. As part of the federal war effort, Prime Minister Abiy enlisted forces from Eritrea and Ethiopia’s Amhara region. With Abiy’s encouragement, Eritrean forces invaded Tigray from the North and militias from the Amhara ethnic group from the South. The roots of this clash, however, go back to the 1970s, when the TPLF established itself as the most powerful insurgent group, leading the alliance that toppled Mengistu Haile Mariam, the Ethiopian president who ruled as a dictator from 1977 to 1991.
This rebel group formed an alliance, which became the country’s ruling coalition, made up of fractions whose party lines were drawn along ethnic groups. Although Tigrayans, as an ethnic group, account for just around 6% of Ethiopia’s population, the TPLF became the dominant political force in the country. However, owing to their repressive politics, protests erupted in 2015, eventually leading to the resignation of Prime Minister Hailemariam Desalegn. Abiy replaced him in 2018 and planned to purge Tigrayans from the federal government. He reorganised the ruling coalition into a single political party, which the TPLF refused to join. Abiy aimed to consolidate political power under a reformed federal system based on an Ethiopian nationalist policy to overcome ethnic divides. Abiy’s vision was supported by the Amharans, who were marginalised under the TPLF-led government, which considered the Amharan elites as “oppressors” during the TPLF’s revolutionary campaign in the 1970s. In turn, Amharans claim Tigrayans annexed some of their most valuable lands when the TPLF seized power in 1991. Thus in entering into the current alliance with Abiy’s campaign against TPLF, the Amharans aim to reclaim their lost territory.
Once Abiy took office, he also made peace with Eritrea, with whom Ethiopia fought a violent border war in 1998, for which he was awarded the 2019 Nobel Peace Prize. In 2002, a UN Boundary Commission, established by the Algiers Agreement, granted areas in Northern Ethiopia to Eritrea, which Ethiopia has failed to respect. Therefore, the hostilities between Ethiopian federal forces and the TPLF over the Northern Tigray region hands Eritrea a politically expedient opportunity to provide Abiy troops for the campaign against Tigray, and establish their presence in Northern areas, officially granted to them by the UN Boundary Commission. Furthermore, Eritrean President, Isaias Afwerki, views Tigray leaders as having double-crossed Eritrea, when they turned Ethiopia’s military against his regime in the 1998 border war despite strong Eritrean support for the TPLF’s rebellion against Mengistu Haile Mariam’s military dictatorship. Thus, Eritrean troops’, often disguised as Ethiopian forces, destruction and violence against Tigrayan civilians, is regarded as retribution for Eritrea’s suffering in the border war.
Consequently, Ethiopia’s federally led campaign against Tigray is allied with two groups, who hold deep-seated resentments against the TPLF, and as a result also the Tigrayan people: the Amharans holding such resentments for lost land when the TPLF came into power in 1991 and the Eritreans for suffering endured during the 1998 war with Ethiopia under the TPLF-led regime. Experts have observed that Abiy capitalised on an anti-TPLF grievance while consolidating his power to obtain his premiership, with one expert noting Abiy’s portrayal of the Tigrayans as “the Ethiopian equivalent of the ‘deep state.’”
Obligation to Prevent Genocide: Predicting the Risk of Genocide
The obligation to prevent genocide was fleshed out in the ICJ’s Bosnia Genocide case, in which the Court ruled on the erga omnes and extraterritorial character of the obligation (Judgement on Preliminary Objections, para 31). The Court affirmed the “due diligence” obligation by holding that such an obligation would be breached if “the State manifestly failed to take all measures to prevent genocide which were within its power” (Judgement, para 430). The ICJ held that the obligation is triggered by actual (“knew”) or constructive (“should have known”) awareness of the risk of genocide. However, it provides no guidance on how this risk is to be determined. Thus, in light of this obligation risk assessment models have been developed. The UN Office on Genocide Prevention and the Responsibility to Protect (OGPRP) uses a framework analysis with “Common” and “Specific” risk factors to alert the Secretary-General and UN system, as well as the international community. The NGO GenocideWatch employs a similar mechanism by indicating the risks of genocide in ten different stages.
The reported atrocities in the Tigray conflict would already fulfil the OGPRP’s Common Risk Factor 1 (“Armed conflict”) and 2 (“Serious violations of human rights and humanitarian law”). Risk Factor 4 (“Motives and incentives”) is also present, particularly 4.1 “Political motives, particularly those aimed at the attainment or consolidation of power” (Prime Minister Abiy’s rise to premiership), 4.3. “Strategic or military interests, including those based on protection or seizure of territory and resources” (Amharan wish to reclaim lost land), 4.8. “Politicisation of past grievances, tensions or impunity” and 4.9. “Social trauma caused by past incidents of violence not adequately addressed and that produced feelings of loss, displacement, injustice and a possible desire for revenge” (the Ethiopian government’s capitalisation of Amharan and Eritrean anti-TPLF grievance to form the present alliance).
The Specific Risk Factors are also present in the Tigray conflict, including Risk Factor 9 “Intergroup tensions or patterns of discrimination against protected groups”, Risk Factor 10 “Signs of an intent to destroy in whole or in part a protected group” (indicated by the reported testimonies of Tigrayan rape victims), Risk Factor 11 “Signs of a widespread or systematic attack against any civilian population”, particularly 11.2. “Increase in […] the geographical area targeted” (the massacres and finding of mass graves in the Tigray region), and Risk Factor 14 “Serious threats to humanitarian operations”, particularly 14.5 “Interference, limitation or prohibition of access or movement of humanitarian operations or their personnel.” Finally, given the Ethiopian government’s denial and watering down of the gravity of the situation in Tigray, as well as the accusation of the international community’s condemnation as “orchestrated attack” and interference in state affairs, Risk Factors 2.6 “Justification, biased accounts or denial of serious violations of international human rights and humanitarian law or atrocity crimes”, and 8.3 “Measures taken by the international community perceived as threatening to a States’ sovereignty” are also indicated.
The following sections will assess these indications for risk of genocide in light of international criminal law and the jurisprudence of international criminal tribunals.
The Contours of the Crime of Genocide
The most distinctive feature of crime of the genocide rests in the required mens rea, the characteristic “double intent” (Ambos, 2009, p. 345). First, double intent must encompass the intent to commit the underlying actus reus of genocide against members of a national, ethnic, racial or religious group. The modi operandi by which the actus reus is perpetrated are set out in Art 6 Rome Statute, which goes beyond the act of (a) killing to also encompass (b) causing serious bodily and mental harm, (c) inflicting conditions of life calculated to bring about the physical destruction of the group, (d) imposing birth preventing measures and (e) forcibly transferring of children. These modi operandi must take place in the context of “a manifest pattern of similar conduct” (Elements of Crime, p. 2). Second, and most importantly, double intent must encompass the “special intent”, the ulterior aim, of destroying a group, in whole or in part, characterised by a political vendetta and a dehumanising “othering” of that group (Holslag, 2015, p. 99).
Views differ as to the extent of destruction of “part of” a group for such conduct to constitute genocide. The former President of the ICC, Chile Eboe-Osuji, elaborates on two schools of thought on what the destruction of a group “in part” means. One school of thought adopted by international criminal tribunals and the ICJ has its roots in US federal law on genocide, the Genocide Convention Implementation Act 1987, requiring that the intent must be to destroy a “substantial” part of a targeted group (Eboe-Osuji, 2007, p. 260). The ICJ held in the Bosnia Genocide case that the “very nature” of genocide demands that the intent must be to destroy at least a substantial part of a particular group since the object and purpose of the Genocide Convention is to prevent the intentional destruction of groups, which must be targeted in a significant way to have an impact on the group as a whole (Judgement, para 198). In its holding the ICJ cites jurisprudence from the ICTY and ICTR in the cases of Krstić, Kayishema, Byilishema, and Semanza.
Judge Eboe-Osuji argues for the second school of thought that destruction of a group “in part” does not need to be “substantial”, because “in part” must be read according to the ordinary meaning of the word as required by Art 31(1) VCLT, which would not entail reading the qualifier of “substantial” into the meaning of “in part”. Judge Eboe-Osuji notes that the same ICTR Chamber that decided Kayishema was more cautious in the Kajelijeli and the Kamuhanda cases by defining “in part” as not necessarily meaning a “considerable number” but “more than an imperceptible number,” holding that “there is no numeric threshold of victims necessary to establish genocide.” (Prosecutor v Kajelijeli (Judgment and Sentence), para 809; Prosecutor v Kamuhanda (Judgment), para 628) Furthermore, he cites Schabas, who argues that the killing of one member of the protected group would support a count of genocide, provided that the killing was done with the specific intent to destroy the group in whole or in part (Eboe-Osuji, 2007, p. 264). This is echoed in the ICC’s Elements of Crime on Art 6 Rome Statute (p. 2)
Finally, Judge Eboe-Osuji observes the how the evidentiary requirement for the destruction of a “substantial” part has ramifications on international criminal justice, citing the international community’s inaction with regard to the Rwandan Genocide, explaining:
“In the throes of an unfolding apparent genocide, it will, in most cases, be difficult to ascertain the state of mind of the perpetrators and planners in order to establish whether or not they harbour joint or several intent to destroy a “substantial” part of the group.” (Eboe-Osuji, 2007, p. 263).
The “substantial” qualifier inevitably leads to a longer delay in establishing whether perpetrators and planners harboured genocidal intent and for the international community to intervene with the level of urgency and action required. With regard to genocide the international response, particularly through diplomacy is, as one journalist puts it, “not famous for haste or blunt truths.”
Specific Genocidal Intent against the Tigrayans as an Ethnic Group?
As elaborated above, the Ethiopian federal-led forces, composed of allied Amharan and Eritrean forces, have made targeting Tigrayans the driving force of their campaign. The UN Special Adviser on the Prevention of Genocide, Alice Wairimu Nderitu, and US Secretary of State, Antony Blinken, as well as multiple outlets (e.g. AP, NYT, CNN) have used the term “ethnic cleansing” or “ethnic violence” to describe the targeted violence against Tigrayans. “Ethnic cleansing” is not recognized as an international crime, however, has been used in resolutions of the Security Council and the General Assembly, and acknowledged in judgments and indictments of the ICTY. A UN Commission of Experts on Yugoslavia defined “ethnic cleansing” as “a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas.” (S/1994/674, para 130).
This definition would encompass the mass displacement of a fifth of the Tigrayan population, who fled the targeted violence against them. Tigray’s Interim Regional Administration Deputy, Abebe Gebrehiwot Yihdego, emphasises that these forced displacements are not a consequence of war but purposefully orchestrated. Amongst Amharan forces, there is a persistent theme calling for “Tigrayans to be expelled from Western Tigray.” During the Rwandan Genocide intercepted real-time radio broadcasts with clear calls to eliminate the Tutsi population were considered as indicators of genocidal intent. In the same vein, there is video footage of Amhara group leaders proclaiming efforts to “take back the land.” These efforts include planting the Amhara flag, incorporating conquered areas under Amharan administration, forcing Tigrayans to switch to Amhara ID cards, and “eliminating anybody who resisted.” The leaders claim that they have made sure the area “smells like Amhara,” intending to convey the Amharanisation or de-Tigrayanisation of the area. Reuters reports that forces have put up new signs reading “Land of the Amahra” in captured Tigrayan towns, with Amahran government’s spokesman proclaiming, “there is no space called western Tigray, because this area is part of Amhara region.” Members of Abiy’s government have stopped referring to “Tigray” all together, speaking instead about the “Northern Region” or “Northern Ethiopia.” Attempts of erasure of group identity are a known hallmark of genocidal intent.
While forcible displacement could constitute a crime against humanity under Art 7 (1)(d) Rome Statute, the Office of the Prosecutor at the ICC elaborates in a recent policy paper that a policy of displacement could be understood as an actus reus of genocide under Art 6 (c) Rome Statute, stating “the combination of, inter alia, the violent appropriation of traditional lands and forced displacement can erode and destroy a people’s cultural heritage while also being calculated to bring about its physical destruction.” (Policy on Cultural Heritage, 2021, para 83). It is thus, not a stretch to conclude that such policies are driven with a degree of intentionality to tear apart the social fabric of the Tigrayan people.
Furthermore, researchers at the University of Ghent have published a study detailing massacres in the Tigray War from November 2020 – May 2021 (Tigray: Atlas of the humanitarian situation, Annex A), with almost 2000 people killed in more than 150 massacres by soldiers. Reuters has reported these instances as “revenge killings” of Tigrayans by Amharan forces. Bellingcat, an open-source investigative journalism platform, has made an effort to verify the evidence of such massacres through determining geolocations from video footage of the killings. While a death toll of 2000 out of over five million Tigrayans may yet be considered “substantial”, this could be an indicator for intent to destroy “in part”, particularly if one follows the school of thought against the qualifier of “substantial”, as explained by Judge Eboe-Osuji. The number of Tigrayan deaths may still not compare to other cases of genocide. The death toll of the Rohingyas reached over 10 000 before states took serious note of Myanmar’s discriminatory policies (Kinseth, 2019, p.110), while the death toll stood at 8372 in the Srebrenica massacre.
However, the risk of genocide should not be assessed on a strictly numeric basis. As the ICTY noted in Kristić “The numeric size of the targeted part of the group is the necessary and important starting point, though not in all cases the ending point of the inquiry. The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group” (Judgement, para. 12). Philippe Sands emphasised in his pleading as counsel for The Gambia in the Rohingyan Genocide case before the ICJ that genocide is not merely a “numbers games” (para 17). Such figures alone do not reflect the genocidal intent and instead must be contextualised. In the case of the Rohingyas, one could assert that 10 000 deaths out of a population of over a million could suggest something other than intent to destroy a group. Prof. Sands counters that such notions by arguing that intent to destroy a group could still be reflected in the the destruction of entire villages, i.e. communities in a limited geographic area.
Thus, this pattern of massacres in Tigray, esp. in the districts and subdistricts in the “Atlas” study above, coupled with the ongoing forcible displacement, as well as the Ethiopian federal forces’ capitalisation of anti-TPLF “rallying cry” amongst Amharans and Eritreans, could be an indication the mass killings and ethnic violence is an actualisation of an underlying intent to destroy the Tigrayans – at least in part. When reporting on the ongoing Rohingyan genocide, Reuters broke a story detailing how the national military had deployed its national infantry divisions across Rohingyas’ ancestral homelands, notorious for their “brutal counter-insurgency campaigns against [Myanmar’s] many ethnic minorities.” Thus, the make-up of the alliance of federal-led Ethiopian forces could be an additional factor in determining their intent underlying the ruthless campaign against the Tigrayan population. Genocide Watch considers Ethiopia to be “at Stage 5: Organization and Stage 9: Extermination. Because Ethiopia denies allegations of genocidal massacres in Tigray, Genocide Watch also considers Ethiopia to be at Stage 10: Denial.”
Nevertheless, whether genocidal intent can already be conclusively proven is immaterial to the obligation to prevent genocide. The ICJ held in its Bosnia Genocide decision that “a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed” (Judgement, para 431). Thus, awareness of the actus reus alone would trigger the obligation to prevent, as the ICJ further unlined “a State may be found to have violated its obligation to prevent even though it had no certainty […] that genocide […] was under way; for it to incur responsibility [….] it is enough that the State was aware, or should normally have been aware, of the serious danger that acts of genocide would be committed.” (para 432)
The following two sections will specifically examine mass rapes and famine as acts of genocide. Accounts of mass rape could particularly deliver further evidence of genocidal intent against the Tigrayans.
Genocidal Rape: A Double Crime against the Female Individual and an Ethnic Group
Perhaps the most pressing evidence of genocidal intent is seen manifested on a different battleground, Tigrayan women’s bodies. Over 500 rape cases have been reported in Tigray clinics, with experts estimating the number is much higher to account for cases unreported because of social stigma and women’s limited access to health facilities.
“Genocidal rape” or “rape as a weapon” would fall under Art 6 (b) Rome Statute as conduct “causing serious bodily or mental harm to members of the group,” as a war strategy calculated to humiliate, shame, and terrorise not just women and girls, but also, their entire community. If rape is weaponised against a group with a patriarchal culture it could become a means of stigmatising the woman in her community, thus making her “spoiled” for potential marriage, bringing about a “chilling effect on the normative relations between a man and woman who might choose to procreate.” This rationale was utilised by perpetrators of genocide in Yugoslavia and Rwanda and thus could constitute genocide through prevention of births under Art 6 (d) Rome (Short, 2003, p. 509).
Furthermore, the OTP of the ICC recognises that mass rape may constitute genocide under Art 6 (d), perpetrators may achieve the prevention of births within a group through forcible impregnation borne out of mass rape, where a child’s membership of the group is premised on the father’s identity (Policy on Cultural Heritage, 2021, para 84). This is the premise of “occupation of the womb”, which has crystallised out of the ICTR’s case law (e.g. Prosecutor v Akayesu (2 September 1998, Judgement), para 507) and studies of the rape camps in Yugoslavia (Short, 2003, p. 512).
In the case of Tigray, the reports of the widespread violent instances of rape, gang rape and sexual slavery have been accompanied by survivors recounting how soldiers have declared their intentional brutalisation of their female victims in order to “eliminate the Tigrayan race.”A pregnant rape victim recalls Ethiopian soldiers declaring “the generations of babies delivered to be Ethiopian, because [we] don’t want the next generation to be Tigrayan.” This indicates that the soldiers’ intention echoes the “occupation of the womb” premise of genocide under Art 6 (d).
The opening section of this article sheds light on one victim recounting her perpetrators declaring “a Tigrayan womb should never give birth.” In this specific instance, soldiers first gang-raped her and proceeded to insert a hot metal rod into her vagina, thus burning her uterus and leaving her infertile. The soldier explained away this incomprehensible act of torture as “our problem is with your womb. Your womb gives birth to Woyane [derogative term used to refer to the TPLF].” Her story is perhaps not an isolated incident, as can be corroborated by an account of a hospital director in Tigray recounting the hospital having received an emergency call of Eritrean soldiers gang-raping a young woman and subsequently burning her external and internal genitals using a match and hot metal rod. Furthermore, doctors have reported having to remove nails, rocks, and pieces of plastic from inside the bodies of rape victims. One could infer that this, if not purely sadistic conduct, carries evidence of intention to mutilate Tigrayan women in order to make them infertile. Such a pattern of conduct would undoubtedly constitute genocidal rape under both Art 6 (b) for the severity of the violence and Art 6 (d) for infertility caused.
“Extermination” through Famine and Forced Starvation under Art 6 (c) Rome Statute?
The state of famine and food insecurity in Tigray has increasingly been noted as being weaponized in the ongoing conflict. Emergency Relief Coordinator of the UN Office for the Coordination of Humanitarian Affairs (OCHA), Mark Lowcock, states that “The number of people in famine conditions … is higher than anywhere in the world, at any moment since a quarter million Somalis lost their lives in 2011.”
International criminal law scholarship has discussed famine crimes in the context of “state-induced” mass starvations in North Korea, Somalia, the Ukrainian Holodomor (“extermination by hunger”) famine under Soviet rule (see here especially Rafael Lemkin’s, the author of the term “genocide”, “Soviet Genocide in Ukraine”), the Khmer Rouge era Cambodian famine of 1975-1979 and the Chinese famine of 1958-1962. Conceptually scholars have put forward that famine and starvation be regarded as a modality with which a state or group actors bring about harm (DeFalco, 2017, p. 1120). Scholars have categorised how the conditions of famine were brought about in order to determine, whether such conduct would fall under international criminal law accountability. While “deliberately using hunger as a tool of extermination to annihilate troublesome populations” and “reckless continuation” of famine-causing policies “despite learning that they are causing mass starvation” could be considered under the ambit of an atrocity crime, the conduct of “turning blind eyes to mass hunger” of an “incompetent or hopelessly corrupt government” would lack the necessary mens rea (Marcus, 2003, p. 275).
Specific to the crime of genocide, famine has been considered under Art 6 (b) and (c) Rome Statute. The enforcement of famine conditions on a targeted group would be an act of genocide if the suffering associated with famine – the process is for instance described as “the undernourished body consumes its own organs in order to generate enough energy to keep a flicker of life” – causes “serious bodily or mental harm,” and causes “grave and long-term disadvantage” to the ability of victims to live a normal life (Krstić (Judgement), para 513). Famine and starvation could also be regarded as a method of “inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” pursuant to Art 6 (c). The ICTR held in Akayesu that the “methods of destruction by which the perpetrator does not immediately kill the members of the group, but which, ultimately, seek their physical destruction.” (Judgement, para 61), while referring to the “reckless continuation” of famine-causing policies mode of genocidal conduct in Kayishema: “[the Genocide Convention] allows for the punishment of the perpetrator for the infliction of substandard conditions of life which, if left to run their course, could bring about the physical destruction of the group . . . [including, inter alia,] the starving of a group of people.” (Judgement, para 116).
In the case of Tigray, it remains to be seen if the blocking of humanitarian aid by Ethiopian and Eritrean soldiers to the region could be considered as a deliberate famine-causing policy or a continuation of such, accompanied by the specific intent to destroy the Tigrayans as a group. This means determining that the imposition of famine-causing conditions is a key aspect of a larger genocidal project. The existing jurisprudence seems to offer some hope. The ICJ’s Bosnia Genocide decision assessed acts of starvation (para 323) and blockade of humanitarian aid (para 324) as part of a pattern of conduct, from which genocidal intent could be inferred.
Furthermore, the ongoing ICC investigations into the situation in the Darfur region of Sudan could provide new jurisprudence on the potential intersections between famine conditions and genocide. The prosecution has alleged that genocidal acts under Art 6 (b) and (c) were committed against members of the Fur, Masalit and Zaghawa ethnic groups as part of the Sudanese government’s anti-insurgency campaign, a political backdrop that mirrors the campaign against the Tigrayans. Similar to the situation in Tigray, in Darfur, there were also alleged forcible evictions of the population and government encouragement of members of other ethnic groups to resettle in that territory. The Second Arrest Warrant against Al Bashir referenced acts of poisoning water sources (p. 7), while the prosecution has highlighted in the Application under Art 58 Rome Statute (arrest warrant) to 83 000 deaths inter alia from starvation in refugee camps (para 111). The former Prosecutor, Fatou Bensouda, has also stated that she intended to pursue further charges predicated on “the blocking of distribution of humanitarian aid.”
Although the prospects of a trial in the case of Darfur may not be all too promising, the applications filed and decisions rendered in the preliminary stages by the Prosecutor and Pre-Trial Chamber indicate that the ICC would accept the premise that the imposition of famine conditions on a targeted group, with the intent to destroy the group in whole or in part, would qualify as an act of genocide.
The humanitarian crisis in Tigray fueled by an ethnic violence does not only indicate risks of war crimes and crimes against humanity, but also that of genocide. There is evidence of a systematic pattern of conduct, which could indicate the intent to destroy, at least in part, the Tigrayans as an ethnic group. This pattern includes widespread massacres, findings of mass graves, forcible expulsion, and grave sexual violence against Tigrayan women, as well as exacerbation of starvation amongst the Tigrayan population. Thus, not only does the Tigrayan conflict fulfil risk factors of ongoing genocide, the specific conduct of federal-led Ethiopian forces, allied with Amharan and Eritrean forces, also fulfils the actus reus of genocide under Art 6 Rome Statute. The recent reports on the severity of famine in Tigray should rightfully alarm the international community about the urgency of the crisis. Given that the OHCHR has already announced a joint investigation with the Ethiopian Human Rights Commission to probe the ongoing human rights violations, it remains to be seen, whether the existing evidence of and still extant potential for escalation of widespread violence will prompt the UNSC to exercise its power under Chapter VII of the UN Charter by referring the situation in Tigray to the ICC (Art 13 (b) Rome Statute). The atrocities at hand are not merely human rights abuses, but as this article shows also must be considered under the ambit of international criminal law. We can only hope this newfound concern over Tigray widens the window of opportunity for the international community to take action against mass atrocities that are at serious risk of amounting to genocide against the Tigrayan people.
Anh Nguyen is a graduate of the University of Vienna and presently serves as a judicial clerk at the Vienna Circout Courts. She has worked for Transparency International Austria, Ludwig Boltzmann Institut for Human Rights, Baker McKenzie Hanoi Office and Reidlinger Schatzmann Rechtsanwälte GmbH. Anh presently also works as the Weekly News Recap writer at the Platform for Peace and Humanity, preparing the content for the International Justice section.