Horn Of Africa Ethiopia The Situation in Ethiopia is a Unique War and...

The Situation in Ethiopia is a Unique War and the African Union Has a Legal Duty to Silence the Guns

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Ethiopians seek refuge at the Sudan border

The onset of a shooting war between Ethiopia’s National Defense Force (ENDF) and the Tigray People’s Liberation Front (TPLF), which began on 4 November 2020, was predictable. The surprise so far has been the reluctance of Ethiopia’s leadership under Nobel Peace Prize-winning Prime Minister, Abiy Ahmed Ali, to accommodate appeals for de-escalation. On 25 November, the Prime Minister took to his twitter-feed to urge “the international community, to refrain from any acts of unwelcome or unlawful interference and respect the fundamental principles of non-intervention under international law.” In an appeal garnished with generous references to Charter of the United Nations, the Constitutive Act of the African Union and to case law of the International Court of Justice, the Prime Minister argued that “the measures we have taken against those who have taken up arms against the federation are in accordance with the spirit and objectives of the African Charter on Democracy, Elections and Governance, which prohibits unconstitutional change of government and promotes democratic governance.”

The audacity of this position is disconcerting in the manner in which it distorts international law at best, converting the Charter of the United Nations from an instrument, Chapter VI of which expressly mandates the pacific settlement of disputes, into one that underwrites their violent escalation.

It is the position of Prime Minister Abiy that the current conflict with the TPLF in Tigray is a matter that, in the language of Article 2(7) of the UN Charter, is “essentially within the domestic jurisdiction” of Ethiopia. Consistent with this position, the government of Ethiopia has consistently described its operations in Tigray as “law enforcement”. In fact, what the Prime Minister describes in these terms is the deployment not of the assets of Ethiopian Federal Police or, indeed, of the ENDF in assistance to civil authority, but the full mobilization of infantry, artillery pieces, armour, air force, and tank divisions as well as strategic assets from neighbours in full combat operations. Irrespective of who the opponent or enemy is or how they are described, this is not police action.

What is happening in Tigray is war or, to use the language of international humanitarian law, “armed conflict.” International law knows broadly two types of armed conflict: internal armed conflict (more popularly called civil war) or international armed conflict, which describes a war between two or more countries. The Ethiopia-Eritrea War, which lasted some two years, ending two decades ago, was an international armed conflict but the current conflict in Tigray is not “essentially” internal to Ethiopia. In the characterisation of an astute observer, it is a sui generis internationalized-internal armed conflict.

First, the involvement of some of Ethiopia’s neighbours is hardly concealed and it is no accident that rocket attacks have also targeted neighbouring Eritrea.

Second, this conflict has triggered a humanitarian cascade that intimately affects neighbouring countries, with the fighting displacing tens of thousands of people “across the border into Sudan.

Third, under the UN Charter, the Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States adopted in 1981 nevertheless affirms “the right and duty of states to participate actively on the basis of equality in solving outstanding international issues, thus actively contributing to the removal of causes of conflict and interference.” Far from being unlawful, as Prime Minister Abiy claims, conflict resolution is both a duty and a right.

Fourth, this situation fits well within the rubric of “outstanding international issue”. The site of the current conflict is located in a delicate confluence of the Horn of Africa, Gulf of Aden, Nile Basin, Red Sea and the frontiers of Africa’s Great Lakes, producing a heady mix of fragilities extending to maritime insecurity, Islamist terror, failed states, climate crisis, food insecurity, and the transboundary riparian tensions over the Grand Ethiopia Renaissance Dam (GERD). The potential spillovers from any combination of these would be too important to be abandoned to the unilateral trumps of one leader alone, no matter how well meaning.

Fifth, contrary to the Prime Minister’s claim, the Constitutive Act of the African Union, constrains his assertion of non-intervention through the recognition in Article 4(h) of “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity.” Ethiopia’s National Human Rights Commission, an official institution, has reported possible war crimes and crimes against humanity, providing evidence that the trigger threshold for this principle of non-indifference* may have been crossed.

There is ample precedent in Africa’s diplomatic history for what is happening in Ethiopia. When Nigeria’s federal forces began active hostilities with the secessionist territory of Biafra in July 1967, they called it “police action”, which was expected to be surgical and swift. It quickly metastasized into the Nigerian Civil War, which cost over three million lives over 30 months. In that war, Nigeria’s then Head of State, a soldier like Prime Minister Abiy, initially rallied most of his peers in the Organisation of African Unity (OAU) to inaction, asserting that it was a matter within Nigeria’s domestic jurisdiction. Tanzania’s Julius Nyerere disagreed, accusing them of callous indifference to the massacre and starvation of millions and questioning the value of territorial integrity to dead citizens. Ironically, Imperial Ethiopia subsequently played a leading role in convening diplomatic muscle behind an end to that war. In 1995, the OAU created a Conflict Resolution Mechanism with a clear mandate to prevent and end African conflicts. It is surprising that PM Abiy chooses to resurrect, in 2020, a version of a doctrine the silver jubilee of whose interment the African Union marks in the same year with its “Silencing the Guns” campaign.

The African Union is discharging a legal duty and claim of right in designating three high-level envoys comprising Joaquim Chissano, Kgalema Motlanthe and Ellen Sirleaf-Johnson, former presidents respectively of Mozambique, South Africa and Liberia, to facilitate resolution of the conflict in Tigray. Prime Minister Abiy owes them and Africa his full cooperation as they seek de-escalation in Tigray.

Endnote:

*Non-indifference emerged from the ruins of the continent’s crises with the collapse of the Berlin Wall as internal armed conflicts threatened to overwhelm Africa’s transition to pluralism in the 1990s. As a norm of inter-state solidarity, it requires and legitimizes shared solutions to Africa’s peace and security problems where, in the past, Africa’s sovereigns were merely content to look away pleading non-intervention. It is also the continent’s translation of the permission in Article 52 of the UN Charter for regional arrangements to complement the United Nations in the field of peace and security. It means that it is no longer permitted for African leaders to be mere onlookers in African crises.

CHIDI ANSELM ODINKALU

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