It is to be recalled that, in response to the calculated, coordinated, large-scale, treasonous and sudden attack perpetrated against several outposts of the Northern Command of the Ethiopian National Defense Force (ENDF) by the Tigray Special Police and Militia of the Tigray Regional State, the Government of the Federal Democratic Republic of Ethiopia has launched a military operation aimed at:
1) Bringing to justice those who are responsible for planning, organizing and directing the treasonous attack against the ENDF;
2) Restoring the constitutional order and lawful authority within the Tigray Regional State;
3) Neutralizing the grave threat posed by the armed forces organized by the Tigray People’s Liberation Front (TPLF) to the security and territorial integrity of Ethiopia that could have had the possibility of endangering the security of the horn of Africa too;
4) Securing the release of members and officers of the ENDF kidnapped and unlawfully detained by the TPLF, and ensure that the men and women of the Ethiopian National Defense Force who have been slain by the TPLF will be laid to rest in accordance with the appropriate cultural norms and in a manner that befits their sacrifice in the line of duty.
This operation dubbed as a Campaign of Law Enforcement was launched with the authorization of the House of Federation, which ordered the Federal Government to conduct a federal intervention in the Tigray Regional State in accordance with Proclamation Number 359/ 2003 [which provides for a system for the intervention of the Federal Government within Regional States inter alia per article 62(9) of the FDRE Constitution]. The operation was also backed by the authorization of the House of Peoples’ Representatives which declared a State of Emergency within the Regional State of Tigray. Hence, the operation was endorsed and authorized by both the upper and lower houses of parliament, although the authorization of one chamber would have been sufficient from a constitutional legality point of view. The State of Emergency declared by the House of Peoples’ Representatives has also authorized the deployment of security and police forces as well as militia from other Regional States to achieve the objectives of the campaign.
Soon after the launch of this campaign, the ENDF issued clear Rules of Engagement, in a small pamphlet that was distributed to all its personnel deployed in the Tigray Regional State. The Rules of Engagement, which the armed men and women of the ENDF were supposed to carry with them at all times, spelt out the basic duties of the service men and women such as the protection of civilians and other pertinent norms of international law applicable in such context. This is in addition to the continuous training and instructions that are given to officers and servicemen on legal rules and principles applicable within the context of armed conflict. Furthermore, the ENDF regularly evaluates the manner in which the troops executed their missions and took remedial actions when the need arose.
In the operation conducted in the Tigray Regional State since November 4, the ENDF has incurred losses and has gone to great lengths to minimize civilian casualties and avoid engaging the enemy within urban settings. For instance, the ENDF’s effort to avoid armed confrontation in cities has largely been successful in sparing the towns of Humera, Sheraro, Adihageray, Shire, Adewa, Mekelle, Wikro and Abi Adi from the destruction that would have ensued had the ENDF engaged with TPLF forces in these cities.
However, despite the effort of the ENDF to avoid civilian casualties and conduct the operation in line with all applicable national and international legal norms and standards, several allegations concerning the killing of civilians, sexual violence, the looting and destruction of property have been reported by journalists and other entities. The Government of Ethiopia has taken these allegations seriously and has been exerting itself to investigate them thoroughly and ensure accountability as per findings. Parallel, and without prejudice to the preliminary investigation conducted by the Ethiopian Human Rights Commission as well as the joint investigation that is now underway by the Ethiopian Human Rights Commission and the UN Human Rights Commission, the relevant law enforcement agencies have been conducting their own investigations regarding the allegations mentioned above. This brief memo provides a short summary of the legal framework and institutional setup within which these investigations are being carried out. It also provides a brief summary of the progress of the investigations and the challenges faced in the investigation process. The memo indicates the remaining tasks and next steps in these efforts to ensure accountability.
II. Legal Framework and Institutional Setup
Substantive Law: When it comes to the substantive legal rules that are pertinent to the allegations and reports of atrocities, the relevant legislation is the Criminal Code of the Federal Democratic Republic of Ethiopia (Proclamation No. 414/2004). This Code incorporates the relevant international legal standards and provides an extensive list of crimes including War crimes and Crimes Against Civilian Population, War crimes against Medical Services, Pillage and Looting, Use of Illegal Means of Combat. In stipulating these crimes, the Code clearly makes reference to and incorporates international humanitarian law. As such, there is adequate legal framework within the Ethiopian legal system to ensure accountability in the instances and to the extent the allegations are verified.
Jurisdiction and Mandate: when it comes to procedural issues, particularly jurisdiction to investigate and prosecute, there are three entities that seem to have overlapping mandate and jurisdiction: 1) the military police and prosecutors; 2) the federal police and prosecutors; and 3) the regional police and prosecutors. Therefore, the next section of the memo will highlight the progress made by the military and federal entities in ensuring accountability for crimes that are committed within the context of the conflict in the Regional State of Tigray. The information regarding investigations by regional police and prosecutors is still being compiled.
III. Efforts, Progress and Results
Military Police and Prosecutors
- The military police and prosecutors have focused their investigation and law enforcement efforts particularly on cases of homicide/ murder of civilians and cases of rape/sexual assaults perpetrated by members of the ENDF.
- Military prosecutors have pressed charges against 28 soldiers who are suspected of killing civilians in a situation where there was no military necessity. The trials of these suspects are underway and the verdicts are expected to be handed down shortly.
- Military prosecutors have pressed charges against 25 soldiers who are suspected of committing acts of sexual violence and rape. The trials of these suspects are underway and the verdicts in these cases are expected to be handed down shortly.
- In addition to the trials underway, three soldiers have already been convicted and sentenced for rape; one soldier has been convicted and sentenced for killing a civilian.
- The military police are also investigating several other cases in which credible allegations of similar crimes have been reported.
Federal Police and Prosecutors
The Federal Police and Federal Prosecutors have focused on allegations of major atrocities that have been reported since the onset of the conflict in the Tigray Regional State. The investigation of alleged atrocities has been carried out in addition to the crimes that are believed to have been committed by those who have perpetrated the attack against the Northern Command of the ENDF.
The first report of major crimes and atrocities to emerge in the Tigray Regional State concerned the killing of several hundreds of civilians in the town of Maikadra. Reports by international human rights organizations and the Ethiopian Human Rights Commission brought to light the identity/ethnic based attacks against civilians in the town of Maikadra. A team of federal police investigators and prosecutors were deployed to the area and after extensive investigation involving recording the testimony of 256 witnesses, exhuming and conducting forensic investigation on the remains of victims (conducted by a medical team of forensic experts), the investigation team has ascertained that 229 individuals have been killed and several victims have sustained serious injuries. The investigation team has identified 202 individuals who are believed to have taken part in the commission of this crime. While most of the suspects are believed to have fled to Sudan, 23 have been apprehended so far and the case is being processed for trial with the Federal First Instance Court conducting a preliminary inquiry in the matter in accordance with the request of federal prosecutors who have deemed such inquiry necessary to preserve the testimony of witnesses who might not be available during the trial.
The other report of major crimes and atrocities concerned incidents in the city of Axum. The investigation team consisting of federal police and prosecutors is investigating the incidents that have taken place primarily from the 19th to the 28th of November. The main lines of inquiry so far focus on:
1) Death of civilians and damage to civilian installations, infrastructure and property caused by heavy shelling: the investigation so far seems to indicate that a total of 8 civilians have been killed as a result of heavy shelling of targets that do not constitute legitimate military targets.
2) Looting and Destruction of Property: the investigation indicates that there has been looting and destruction of property including the campuses of Axum University, Kdist Maryam Hospital, Berana Hotel.
3) Killing of Civilians [from November 27-28]: the investigation indicates that a total of 110 civilians have been killed on these dates by Eritrean Troops. It was a reprisal for an attack against a contingent of Eritrean troops carried out by a force comprising of the Militia of the Tigray Regional State, the Tigray Special Police force and residents of the city who had been armed by the TPLF and took a two day training. The investigation shows that 70 civilians have been killed in the city while they were outdoors. There are indications that some of these individuals might have been irregular combatants. On the other hand 40 civilians seem to have been taken out of their homes and killed in home to home raids conducted by Eritrean troops. In this investigation, that is still underway, the testimony of 119 witnesses has been recorded, medical records and evidences concerning those who have been injured and received medical treatment has been obtained, video and photographic record of the damage to civilian property and installations has been taken, samples/pieces of shrapnel from the shelling have been secured.
[The investigation concerning Axum is still underway and incomplete. All findings are tentative and subject to corroboration and confirmation].
- Limited human (investigators) and material resources (vehicles)
- Security concerns and sporadic fighting in some areas
- Limited cooperation from local officials, some of whom are sympathetic to the TPLF and hostile to federal investigators
- Deliberate misinformation campaigns complicate the investigations and testimonies from witnesses who seem to have been coached or instructed to give politically motivated “testimonies”
- Weak coordination between federal, military and regional investigators.
V. Next Steps
- Corroborate and confirm witness testimonies obtained in Axum particularly through forensic/medical investigation, if possible by exhuming remains and ascertaining the figure of civilian fatalities
- Finalize the investigation in Axum and identify suspects against whom charges should be brought
- Expand the scope of investigation to other parts of the Region where there have been credible reports of major crimes and atrocities.