20 Nov The Tigrayan Conflict and the Laws of Humanitarian Assistance
[David Matyas is a PhD Candidate and Gates Cambridge Scholar at the University of Cambridge, Lauterpacht Centre for International Law.]
For over two weeks, violent and escalating clashes in the Tigray region of Ethiopia have resulted in hundreds of deaths, thousands of displaced persons and ever growing humanitarian needs in this mountainous region of northern Ethiopia. The parties to this conflict include the government of Ethiopia, led by Abiy Ahmed (the 2019 Nobel Peace Prize laureate), and the regional government of Tigray, led by Debretsion Gebremichael of the Tigray People’s Liberation Front (TPLF). The present hostilities began around the fourth of November. Following an accusation from Abiy that the TPLF had attacked federal troops near the borders of Eritrea and Sudan, the Ethiopian government commenced military operations against the TPLF.
The present crisis arises amidst significant pre-existing humanitarian challenges in Tigray. Over 2 million people in the region are in need of assistance due to food insecurity, internal displacement, or as refugees. A regional desert locust infestation, described as the “worst locust swarm in 25 years”, has adversely affected agricultural production in Tigray this year while Covid-19 concerns since March have complicated access and the availability of food. If the conflict escalates further, the UN estimates that there are nearly nine million people at high risk in and around the region.
Accordingly, the crisis will not only impede the ability to provide humanitarian assistance for existing vulnerabilities, it will inevitably lead to spiking needs. For instance, the conflict has led to a cessation of efforts to control the locust swarms in Tigray, with cascading risks throughout East Africa and the Horn.
The situation in Tigray is fast developing. The United Nations High Commissioner for Refugees (UNHCR) indicated that from 9 November, 7, 000 asylum seekers had crossed into Sudan in a 24-hour period. The number of refugees is currently over 27, 000 and it has been estimated that this could rise to 200, 000. Those who have been able to leave Ethiopia, however, could be just a fraction of those internally displaced within Tigray. On November 12, Amnesty International reported a massacre of civilians in the Tigrayan town of Mai-Kadra. On November 14, Tigrayan forces fired rockets at the Eritrean capital Asmara, underscoring a regional dimension to the conflict. And, on November 15, diplomatic and military sources reported that the Ethiopian government air force bombed the Tigrayan capital city of Mekele, air strikes which have continued in the subsequent days.
Tension between the TPLF and the Abiy administration had been simmering for months. Ethnic Tigrayans had typically held significant power in the country following their role in overthrowing the communist Derg regime in 1991. But, with the selection of Abiy Ahmed as prime minister in 2018, this influence has waned. Talk of abandoning the constitution, postponement of the national election in June, and regional elections in Tigray have added heat to this tinderbox.
In the coming weeks, there will likely be increased attention to the jus ad bellum considerations in this conflict. In particular, with allegations that Eritrean forces have been involved in hostilities against TPFL forces in Tigray, and newly warmed relations between the President Abiy and the Eritrean government of Isaias Afwerki, questions may arise regarding whether there has been an “intervention by invitation” in this conflict.
Rather than focus on these dimensions, however, this post is concerned about those related to international humanitarian law, or jus in bello. Specifically, the laws surrounding humanitarian assistance, and access to humanitarian assistance in non-international armed conflicts.
I wrote recently about humanitarian access in an article in International and Comparative Law Quarterly entitled “Humanitarian Access Through Agency Law in Non-International Armed Conflicts”. And, where that piece focused on the conflict in Syria, there are similarly relevant themes for the ongoing conflict in Ethiopia which this post draws upon. Here, while the Ethiopian administration has advanced that the present conflict is a “law-enforcement operation”, the intensity of hostilities, use of military rather than police forces by the Ethiopian government, and organized nature of the TPFL forces are strong indicators that dimensions of the present conflict fall within the meaning of a non-international armed conflict rather than the internal disturbances of Article 1(2) of Additional Protocol II to the Geneva Conventions.
In non-international armed conflicts, those people not taking part in hostilities have a right to humanitarian assistance. This right flows from international humanitarian law — particularly the provision for ’humane’ treatment under Geneva Convention Common Article3, as well as international human rights law — including the right to food and water in cases of natural or other disasters under the International Covenant on Economic Social and Cultural Rights (ICESCR). In the first instance, states have the responsibility for ensuring this right. But, in non-international armed conflicts, scholars like Akande and Gillard have argued that this obligation may also bear on non-state armed groups in areas where they exercise effective territorial control.
In the throes of conflict, however, warring parties may be unable to fulfill this obligation. Accordingly, where there is a gap between the population’s needs and what the belligerent parties can provide, parties to a conflict have a parallel obligation to allow and facilitate the passage of humanitarian relief. This obligation is detailed in Rules 55 and 56 of the International Committee of the Red Cross (ICRC)’s Customary International Humanitarian Law database, as well as Article 18(2) of the Additional Protocol II to the Geneva Conventions. Where a party is not just unable but actively obstructionist, working to wilfully impede the passage of relief supplies, these actions may be held as war crimes under the Rome Statute.
Despite these obligations, aid organizations do not have automatic legal authority to provide assistance. Humanitarian organizations offering aid need acceptance, or more particularly “consent”, before they can provide relief. As with the obligation to assist the population, the conventional wisdom has been that it is the State Party in a conflict that has the authority to give this consent. But here too, some have argued that non-state armed groups can provide this consent in areas where they have effective territorial control. In the Syria conflict, some aid organizations followed the approach that consent from the Assad regime in Damascus was required, while others were willing to operate under the cover of consent from non-state armed groups.
Though consent is required for aid organizations to provide relief, it cannot be arbitrarily withheld. If a party denies consent without giving reasons, or denies consent without first conducting a needs assessment, that consent may be considered arbitrary. Military necessity may provide one justification for impeding the movement of relief supplies, but even here, the restrictions likely need to be temporary and proportionate. A blanket denial of consent for an entire conflict zone for the duration of a conflict won’t pass muster. A failure of aid organizations to adhere to the humanitarian principles of humanity, impartiality, independence, and neutrality, might also be a valid reason for withholding consent.
So where does this leave humanitarian actors wishing to provide relief in Tigray? What obligations are the Ethiopian government and TPFL under to allow assistance?
Currently, in Tigray, humanitarian access has already been affected. Transportation into the region has been obstructed by government road closures and a state of emergency has established a no-fly zone. The BBC reports that the TPFL has also restricted travel in multiple areas within Tigray and the Ethiopian government has accused the TPLF of bombing four bridges into the regional capital Mekele (which the TPFL denies). That urban siege in Mekele, a city that has always faced water shortages, is particularly troubling.
Blockages such as these are hindering the ability of humanitarian staff to access affected populations and for relief supplies to be delivered. Further a telecommunications blackout involving cuts to electricity, telephone services, and internet, has seriously impacted communication, complicating humanitarian logistics and the ability of aid organizations to conduct needs assessments. The UNHCR has indicated that a “full-scale humanitarian crisis is unfolding”.
Amidst these blockages of supply routes and obstructed access for humanitarian workers, and indications of shortages of at least flour, fuel and water in Tigray, it is becoming increasingly clear that the Ethiopian government and the TPFL are not meeting their legal obligations to themselves provide relief. It is therefore incumbent on those parties to this conflict to allow the passage of humanitarian relief. Indeed, the UN Office for the Coordination of Humanitarian of Humanitarian Affairs (OCHA) in Ethiopia has said that it is presently negotiating with the federal government and regional authorities for the establishment of humanitarian access.
Claiming military necessity, while a potentially valid reason to deny humanitarians access, is hard to square with the present widespread blockages to transportation and communication in Tigray. And, the longer the Tigrayan crises continues, the harder it will be to classify these denials of access as anything other than arbitrary.
A complicating factor in the provision of humanitarian assistance in this crisis may be a lack of neutrality (or perceived lack of neutrality) of the aid organizations operating in Ethiopia. In order to provide humanitarian assistance, aid organizations must ostensibly adhere to the humanitarian principles mentioned above. However, in Ethiopia, many multi-mandate aid groups operating in the country have longstanding development partnerships with the Ethiopian state. Whereas some like the ICRC have worked to safeguard their neutrality over the years, not all would be viewed as falling within this “Dunanist” tradition. Though the actual legal, operational and moral basis for the principle of neutrality has been vigorously and compellingly questioned of late, access may still be obstructed where those looking to provide assistance are not viewed as neutral.
And, while the TPLF may be legally able to offer consent for international humanitarian assistance, operationally this may prove difficult. With the Ethiopian administration controlling access from the south as well as enforcing a no-fly zone over Tigray, and hostilities along the Eritrean border to the north, the Western border between Tigray with Sudan may be the only one where the TPLF has the effective territorial control to actually offer consent.
There is no question that the situation in Tigray is rapidly evolving. But with resistance to peace talks from the Ethiopian government, resolution of the crises does not seem imminent. As the risk of a more protracted conflict looms, the paramountcy of the Ethiopian government and TPL’s legal obligations to allow humanitarian assistance grows.