CHAPTER NINE: International Humanitarian Law in Ethiopian Context

INTRODUCTION

This chapter is intended to provide an overview of the status and application of international
humanitarian law in Ethiopia. The chapter has two sections. The first section deals with the legal
regimes governing international humanitarian law in Ethiopia which includes the constitution,
the criminal law, international instruments ratified by Ethiopia, military rules, military manuals
and code of conduct. As the last three are basically to be covered in military law course, the
discussions below focus on the first three. The second section deals with the application of
international humanitarian law in Ethiopia. This section actually tries to initiate discussion and
further research rather than provide case studies/practices.

9.1 Legal Regimes Governing International Humanitarian Law in Ethiopia

As already stated, international humanitarian law is part of public international law regulating the
behavior of parties to an armed conflict (war). This law is basically to be incorporated in to and
applied through domestic legal systems. From this perspective, it is important to assess to what
extent the laws of war are incorporated in to the Ethiopian legal system. In this section, we will
consider the constitution, the criminal law and international instruments ratified by Ethiopia.
Although discussion of the subject should start from the constitution (as it is the supreme law of
the land), it is better for purpose of clarity to begin with a discussion on IHL treaties to which
Ethiopia is a party. This is so because the constitution itself makes reference to such treaties.

A) International Instruments ratified by Ethiopia

Ethiopia has ratified a number of international human rights and IHL treaties. It is important to
keep in mind that some of the provisions of international human rights treaties can arguably
invoked to protect victims of armed conflict (war). Apart from these, Ethiopia has ratified a
number of IHL treaties that provide protections. According to some sources, until January 14,
2009, Ethiopia is a party to the following treaties:

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 1. Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, Geneva, 12 August 1949.
2. Convention (II) for the Amelioration of the Condition of the Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949;
3. Convention (III) Relative to the Treatment of Prisoners of War, Geneva, 12 August 1949;
4. Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Geneva,
12 August 1949;
5. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts, Geneva, 8 June 1977;
6. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts, Geneva, 8 June 1977;

Ethiopia is a party to the first four conventions as of 1969; the two Additional Protocols were
ratified in 1994. As we will see in the following sub-section, by virtue of the constitution, these
conventions form an integral part of the law of Ethiopia.

B) The Constitution of the Federal Democratic Republic of Ethiopia

As Ethiopia is a party to IHL treaties, the first constitutional provision relevant to IHL is one that
is found under Article 9 (4). This article states that all international agreements ratified by
Ethiopia are an integral part of the law of the land. By virtue of this provision, IHL treaties
ratified by Ethiopia (the four Geneva Conventions and the two Additional Protocols) are part of
the Ethiopian law, and hence should be respected or applied.

Another important constitutional provision relevant to IHL is Article 28, which deals with
crimes against humanity. It provides that the criminal liability of persons who commit crimes
against humanity shall not be barred by period of limitation. It also states such offences may not
be commuted by amnesty or pardon of the legislature or any other State organ. The Constitution
does not provide the definition of crimes against humanity. It rather states crimes against
humanity are to be defined according to international agreements ratified by Ethiopia and by
other laws of Ethiopia (for example the criminal law). However, it also provides an illustrative
list of what constitutes crimes against humanity including genocide, summary executions,

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forcible disappearances or torture. In our previous discussions, we learned that these crimes
constitute grave breaches of the Geneva Conventions with respect to which States have the duty
to prosecute. Our Constitution goes further and says these crimes cannot be subject to period of
limitation, amnesty or pardon. Thus, persons who commit crimes against humanity at peacetime
or during war cannot go free. They can be prosecuted and punished at any time. This
significantly contributes to the fight against impunity.

Article 18 of the Constitution on the prohibition against inhuman treatment is also relevant to the
protection of victims of war. Sub-article 1 states that everyone (civilian, combatant or prisoner of
war) has the right to protection against cruel, inhuman or degrading treatment or punishment.
This provision shall apply even in case of armed conflict. Of course, many of the Constitutional
provisions on human rights can be invoked to provide protection to victims of armed conflict and
thereby regulate the behavior of parties to an armed conflict. As the general provisions of the
Constitution are to be enforced through specific laws, one needs to consider the specific laws.
One such law is the criminal law, which gives effect to international treaties and constitutional
provisions relating to IHL.

C) The Criminal Code of the Federal Democratic Republic of Ethiopia

The Criminal Code of the Federal Democratic Republic of Ethiopia was promulgated in
2004(see Proclamation No. 414/2004), and no doubt has taken in to consideration the
Constitution as well as IHL treaties (Conventions) ratified by Ethiopia. The Criminal Code of
Ethiopia, among other things, provides a list of prohibited behavior during armed conflict (war)
and provides the corresponding punishment. By imposing criminal responsibility on persons who
violate it, the criminal law is meant to ensure the respect of the laws of war.

The Special Part of the Code (Part II) deals in its Title II (starting from Article 269 ) deals with
crimes in violation of international law. This part of the Code is intended to ensure the
enforcement and respect of international law including but not limited to international
humanitarian law. As these crimes can be committed during an armed conflict (war), the
provisions are relevant in regulating the behavior of parties to the conflict (war).

Accordingly, the Criminal Code of Ethiopia penalizes;

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 (1) Genocide –Article 269;
(2) War crimes against the civilian population-Article 270;
(3) War crimes against wounded, sick or shipwrecked persons or medical services-Article
271;
(4) War crimes against prisoners and interned persons-Article 272;
(5) Pillage, piracy and looting-Article 273;
(6) Provocation and preparation regarding the above listed crimes-Article274;
(7) Dereliction of duty towards the enemy-Article 275;
(8) Use of illegal means of combat-Article 276;
(9) Franc Tireurs-Article 278;

(10). Maltreatment of, or dereliction of duty towards, wounded, sick or prisoners- Article
279;

(11) Denial of justice- Article 280;

(12). Hostile acts against international organizations (including the ICRC)- Article 281;

(13). Abuse of emblems and insignia of international humanitarian organizations- Article

(14). Hostile acts against the bearer of a flag of truce-Article 283;

It can also be argued that some provisions of Title III of Part II dealing with military crimes and
crimes against the defense forces and the police are relevant to IHL. Generally, the special part
of the Criminal Code is aimed at protecting of victims of warfare as well as regulating means and
methods of warfare. By so doing, the provisions are intended to ensure the respect of the
minimum standards of conduct set under international humanitarian law.

In addition to the criminal law, the proclamation establishing the Defense Force and the military
manual foreseen therein are relevant in understanding the rules that regulate warfare. But clear
understanding of the scope of laws of war applicable under Ethiopian legal system requires
further research.

9.2 Application of International Humanitarian Law in Ethiopia

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As discussed earlier, to a certain extent, the rules of IHL are incorporated into the Ethiopian legal
system through the Constitution and the Criminal Code sanctions their violation. However, their
practical application is a subject to be explored. Faced with the urgency of preparing and
submitting this material, time constraints prevent us from collecting and dealing with actual
cases. The best we can hope is that students and instructors will undertake further research and
fill the gap.

Review Questions

1. It is true that the rules regulating warfare do not emanate from treaties only. We have, for
example, rules of customary international humanitarian law. What is the status of such laws
in Ethiopia?
2. Which provisions of the Geneva Conventions does the Criminal Code of Ethiopia enforce?
Explain,
3. It seems that Ethiopia has not ratified those treaties that are generally classified as Hague
Laws. Do you think Ethiopia should ratify these treaties (conventions)?
4. Should Ethiopia ratify the third additional protocol to the Geneva Conventions?
5. What means of warfare are prohibited under the Criminal Code of Ethiopia?
6. International law generally recognizes universal jurisdiction with respect to grave breaches
of the Geneva Conventions. Can Ethiopian courts exercise universal jurisdiction? Discuss
the problems related to the application of universal jurisdiction?