Indiscriminate attacks against civilians, hospitals and healthcare centers, sexual and gender-based violence (SGBV), executions, torture and forcible displacement are just some of the crimes that are taking place in Ethiopia, a fractured country facing an escalation of diverse armed conflicts, with the civilian population caught in the middle of a complex humanitarian and geo-political scenario.
Ethiopia has been witnessing the rise of various armed groups in the context of a fraught armed conflict. The hostilities between the government forces and the armed groups have resulted in an escalated number of civilian fatalities. The commission of war crimes by the Ethiopian National Defense Force (ENDF), the Amhara Special Forces (ASF), the Tigrayan Special Forces (TSF), regional militias, and the Eritrean Defense Force (EDF) has ruptured civilians lives. According to a report dated 3 November 2021 and authored by the Ethiopian Human Rights Commission (EHRC) and the UN Human Rights Office, there is sufficient evidence to believe that parties engaged in hostilities have committed several violations of international humanitarian law (IHL), international human rights and refugee law.
In the light of the above, this article analyzes whether the sexual and gender-based violence perpetrated by the parties engaged in the conflict constitutes war crimes. The article also calls and explore opportunities to hold the perpetrators accountable.
On 4 November 2020, the TSF launched an assault against an Ethiopian military camp in Dansha, north of Ethiopia. The attack was the first of a series of offensives against Ethiopian bases in Tigray, that rapidly expanded to the whole country.
The origin of the hostilities dates back to the 1970s and 1980s, when the Tigray People’s Liberation Front (TPLF), started a campaign against the government forces. The Tigrayans (as an ethnic group representing 6.1% of the population) succeeded and became the leading member of the coalition that took power of the country in 1991. Under its rule, they gave autonomy to the different regions but were criticized on several occasions for the violent repression against the opposition, especially against the Amhara and Oromo ethnic groups. In 2018, Ethiopia’s Prime Minister resigned, leading the members of the ruling coalition to unify against the Tigrayan wing. They elected Aby Ahmed, a member of the Oromo, the largest ethnic group in the country, as the new leader. In 2019, the TPFL refused the agreement presented by Aby to join the Prosperity Party and led to independent elections in Tigray. Since this event, both parties have designated each other as “illegitimate”.
Consequently, Ethiopia sought the assistance of Eritrea, (in war with Ethiopia from 1998 until 2000) an ally of Mr. Abiy’s government since both countries signed a peace treaty, after which, Aby Ahmad won the Nobel Peace Prize. On this basis, the hostilities intensified, resulting in an offensive directed by Abiy Ahmed in coordination with the ASF and facilitated the recapture of key cities and forced the Tigrayan forces to retreat 400km away from the capital.
The Applicable Legal framework
International humanitarian law (IHL) categorizes armed conflicts like these as a non-international armed conflict (NIAC). Ethiopia is a State Party to the Geneva Conventions and the Additional Protocol II (AP II), which determines in Article 1 that conflicts of a non-international nature take place in the territory of a High Contracting Party, between its armed forces and dissident armed forces, or other organized armed groups, in this case the TSF, which, under responsible command, exercise such control over a part of its territory as to enable them to carry out military operations (Additional Protocol II, art. 1). The conflict, as will be analyzed, meets all of the aforementioned requirements.
Though Common Article 3 of the Geneva Conventions (CA3), applicable to NIACs, does not provide a description for the classification of situations, in international law it is generally accepted that the assessment of whether a situation amounts to NIAC thereunder, is based on two cumulative components that complement the requirements of the APII: intensity and organization. These elements were established in the case of the ICTY The Prosecutor v. Duško Tadić, para. 562.
The intensity is measured by certain factors, such as an increase of armed clashes, the spread of violence within the territory of a State over a period of time, and the distribution of weapons among both parties to the conflict. Since the attack of 4 November, many deaths, injuries and property damage have been documented. Furthermore, the TSF has shown to have several missile systems, which were used against airports in the regions of Amhara and Asmara, Eritrea. On the other hand, the Ethiopian army has also conducted a series of airstrikes against Mekelle, the principal city of Tigray.
According to the CA3, the requirement of ‘organization’ for Government authorities are presumed to have been met. Whereas, for armed groups, certain factors must be taken into account to fulfill this requirement, these elements are command structure, the operational capacity of the group, logistical capacity, the ability to speak with one voice and to participate in the negotiation of agreements and the existence of some kind of internal disciplinary mechanism. The organization of the TPLF is demonstrated in its 250, 000 troops and in their capacity to carry out attacks outside of its strongholds, including Eritrea. In addition to the de facto control they exercise over Tigray region, also signal of the structure and command that may trigger the obligations under international human rights law (IHRL).
In addition to IHL, human rights law has a key role to play, especially concerning SGBV. In this regard, Ethiopia is party of the following instruments that protect the principle of equality and non-discrimination including the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the Maputo Protocol.
Gender-Based violence refers to sexual, physical, mental, and economic violence directed towards an individual based on their sex or gender. These acts also constitute a violation of IHRL’s prohibition on torture and other forms of cruel, inhuman, or degrading treatment. Similarly IHL prohibits sexual violence when committed against persons taking no direct participation in hostilities (AP II, art. 13(2)).
The following section will assess the crimes previously mentioned in light of IHL, international criminal law, and the jurisprudence of international tribunals.
Sexual and gender-based violence as a war crime
Since the beginning of the conflict, both parties have accused each other of violating the rules of war. According to the Joint Investigation Team (JIT), set up by the EHRC and the UN Human Rights Office, report, there are reasonable grounds to believe that all parties have been carrying out war crimes. Additionally, Amnesty International’s (AI) report I Don’t Know If They Realized I Was A Person’: Rape and Other Sexual Violence in the Conflict in Tigray, Ethiopia reveals how women and girls have been subjected to rape, gang rape, sexual slavery, sexual mutilation and other forms of torture. According to Agnès Callamard, AI’s Secretary General, “It’s clear that rape and sexual violence have been used as a weapon of war to inflict lasting physical and psychological damage on women and girls in Tigray.” According to the JIT (para. 180), the following parties perpetrated SGBV: the ENDF in Mekelle, Wukro, Bora, Mekoni, Shire, and Bizet; the EDF in Ahferom Samre, Werie-Leke (in Edega Hamus), Shire, Tembien, Adet, Humera; the TSF in Adi Hageray, Mai Laha (in Shimelba), and Mekelle; and the ASF in various locations of Tigray.
The JIT report is built upon 47 interviews and meetings with survivors, witnesses, and key sources, including 30 interviews with SGBV survivors that were carried out to determine the severity and scale of the sexual crimes committed by the ENDF, EDF, and TSF. Among the crimes executed, there are numerous cases of gang rape, violence against women and girls associated with armed fighters to the conflict. The crimes include attacks against older women, women with disability, rape in detention, and SGBV against men and boys. Similarly, Amnesty International investigators interviewed 63 women and girl survivors of SGBV during the NIAC in the Tigray region, the report highlights the perpetration of rape, gang rape, sexual slavery, sexual mutilation, and torture against women and girls. It is understood that rape has also been used as a method to pressure women to reveal the whereabouts of their husbands.
One of the interviews conducted was related to gang rape victim- the case of a 19-year-old woman from Werie-Leke who informed the JIT that “she and her 15-year-old sister were taken to an EDF military camp because their father and brother were fighting for the Tigray forces. She stated that they were separately detained. She was detained for one month and over that period, 27 EDF soldiers raped her, sometimes with two to three soldiers at a time” (JIT report, para. 161).
This is just one example of the degree of brutalities faced by women in Tigray. The JIT also found that women whose male family members were part of the TPLF were targeted for detention and subsequently subjected to different forms of sexual violence by the TSF, whose members reportedly abused and, in some cases, raped the wives of ENDF soldiers. In addition to rape, many women have faced horrific crimes and sexual assault. According to the interviews carried out by AI: “Survivors recounted additional acts of brutality accompanying the rapes, with perpetrators — mostly Eritrean soldiers — inflicting such torture solely to cause maximum pain and damage, not to extract information. Two survivors reported having hot metal rods, large nails and multiple types of metal and plastic shrapnel inserted deep into their vaginas, causing indescribable pain and at times irreparable damage.” (AI report page 16).
Violence has also been perpetrated against women fleeing the conflict. The JIT reported two cases (JIT report, paras. 164 and 165) where women and girls were raped by Tigrayan and Ethiopian soldiers. Further, numerous women told AI that they were raped by soldiers and militiamen near the Sudanese border while they were attempting to seek refuge in the Eastern Sudan. When it comes to instances of violence against older women and women with disability, the JIT has identified cases in Samre and Wukro, where elderly women were tortured or killed, while attempting to save their daughters from ravishment. As a result, many of them contracted HIV (AI report, page 14).
Another crime that has been noted in the Tigray conflict is sexual slavery. According to an AI report (page 14), several SGBV survivors who were later interviewed stated that they were held for days and in some cases weeks, continuously raped, and in many cases by more than one man. Some of them were held in military camps or in open grounds in rural areas.
The JIT also found that several men and boys were subjected to different forms of sexual violence. According to JIT (JIT report, para. 172), a 16-year-old boy was raped by nine EDF soldiers in Humera and did not receive any medical or psychological support, as a result, he committed suicide. In Samre, on 2 April 2021, the EDF soldiers forced around 600 men to strip down to their underwear for a search in public. Many of them stating that they felt degraded by the experience.
Both reports arrive to the same conclusion regarding the impact of SGBV. The harm caused to the victims is primarily based on the effects on their physical and psychological integrity. In this sense, several survivors experience anxiety, depression, and other forms of emotional distress. Several others suffer physical trauma, unwanted pregnancy, and sexually transmitted diseases, especially HIV. (JIT report, para. 177)
The commission of international crimes previously described serious breaches of IHL, specifically to the Common Article 3 of the Geneva Conventions and the Additional Protocol II. According to customary IHL, Rule 156 designate the following acts directed against persons not taking a direct part in hostilities, as war crimes in the context of a NIAC: “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; committing outrages upon personal dignity, in particular humiliating and degrading treatment.” These attacks constitute war crimes under the Article 8(2)(e)(vi) of the Rome Statute which defines rape, sexual slavery, enforced prostitution and forced pregnancy as a war crime.
In the Furundžija case in 1998, the ICTY determined that the accused was individually criminally responsible for rape in the context of a NIAC based on Article 4(2)(e) of Additional Protocol II. In this judgment (para. 185), the Trial Chamber established the core elements of rape: “(i) the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; (ii) by coercion or force or threat of force against the victim or a third person.” Based on the fact-finding missions led by the JIT and AI, several instances committed in Tigray meet the requirement of rape and sexual violence and may constitute a war crime under international law.
In the cases of sexual assault, the Trial Chamber determined that: “international criminal rules punish not only rape but also any serious sexual assault […] It would seem that the prohibition embraces all serious abuses of a sexual nature inflicted upon the physical and moral integrity of a person by means of coercion, threat of force or intimidation in a way that is degrading and humiliating for the victim’s dignity” (para. 186). Therefore, the application of international criminal rules also incorporates sexual violence against the integrity of a person.
In order to determine the responsibility of perpetrators, Rule 151 establishes that individuals are criminally responsible for committing a war crime, attempting to commit it, as well as, for assisting in, facilitating or abetting the commission of a war crime. Moreover, according to the customary Rules 152 and 153 superiors are criminally responsible for war crimes committed by their subordinates if they order the commission or if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes. In the context of the Ethiopian conflict, several reports of the abuses perpetrated were widely circulating in the media, therefore it could be said that military commanders knew or should have known about the conduct of their subordinates, particularly regarding the patterns of widespread rape and other types of SGBV.
States parties of the ICCPR (Art. 2) must investigate violations to human rights committed within its territory, this norm applies at all times, including during the context of an armed conflict. Therefore, Ethiopia and Eritrea have the responsibility to carry out an investigation based on the principles of independence, impartiality, thoroughness, effectiveness, and promptness.
An alternative method to ending impunity and bring accountability to the perpetrators is through the International Criminal Court (ICC). As Ethiopia and Eritrea are not State Parties of the Rome Statute, the ICC can exercise its jurisdiction in two cases: via a voluntary declaration accepting the jurisdiction of the ICC, or if the case is referred to the ICC by the UN Security Council (UNSC). In order to support the criminal prosecution either through an international mechanism or through a national process, an international, independent investigative mechanism (like, in Syria and Myanmar) can be created to gather evidence on the most serious violations of IHL and IHRL committed during the NIAC.
The sexual crimes noted above fulfill the statutory and legal requirements of war crimes in the context of a non-international armed conflict. The atrocities committed by all parties demonstrate the brutality of the hostilities and, as a result, the consequences that the civilian population has to face. Women and girls have been the predominant target of sexual assaults and SGBV resulting in severe harm to their physical and psychological integrity. As the conflict in Ethiopia continues, the number of victims will continue to grow and the perpetrators will continue to enjoy impunity. The international community must come together and work towards ending this impunity and seek accountability.
Victor Calero is a final year law student at the Universidad de las Americas in Quito, Ecuador. He serves as a Blog writer at Platform for Peace and Humanity. He interned at Ortega y Grijalva Ecuadorian law firm, Lawyers in Palestine Program and Clooney Foundation for Justice. He is an assistant at the Organization of American States. His areas of interest include International Criminal Law, Humanitarian Law and Human Rights.