Ethiopian Conflict and International Law

Ethiopian war in Tigray
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I spoke to legal scholar and University of Illionois law professor Francis A. Boyle, who said that a “Responsibility-to-Protect” intervention in Ethiopia would be illegal and catastrophic.

Ann Garrison: Francis Boyle, you're an expert in international law, including two of its subsets, international human rights law and international humanitarian law. Could you explain what international humanitarian law is?

Francis A. Boyle: There is a subset of international human rights law that is called international humanitarian law, but the truth of the matter is that international humanitarian law is really a euphemism for the laws of war. When I was at Harvard Law School, I took a course on the laws of war from Richard R. Baxter, the world's leading expert on the subject. And there was no such thing as international humanitarian law then. The term “international humanitarian law” was invented by experts who didn’t like identifying as experts on the laws of war.

AG: Humanitarian corridors to aid suffering civilian populations are guaranteed by international humanitarian law, and this is one of the biggest issues in Ethiopia right now. The NATO nations, and especially the US, who are hostile to Prime Minister Abiy Ahmed and his government, keep arguing that Ethiopia is committing a humanitarian crime by not allowing aid convoys into Tigray.

The same argument is being made about Idlib Province in Syria. Could you say something about how you see the humanitarian corridor issue in these two instances?

FAB: Well, certainly in Syria, the Biden administration is simply using this humanitarian corridor argument, as Obama did, to shore up support for their jihadi terrorists.

It's very simple in Syria. That humanitarian relief could be given to the Syrian government quite legitimately and the Syrian government could distribute it to its own people, as they have done before.  

I certainly don't support Abiy cutting off food to the people in Tigray right now if that's what he's doing. And international humanitarian law prohibits starvation of a civilian population as a method of warfare. But I would hope that the UN Security Council (UNSC) would be encouraging Abiy to reestablish food supplies to the people of Tigray to prevent famine conditions and more loss of innocent human life.

AG: It’s not at all clear that Abiy's government is hindering them, just because Western powers who are hostile to Ethiopia are claiming he is. The Abiy government says that it is not only allowing aid in but also sending aid in, However, government officials have said that they had to establish checkpoints because at one point, a humanitarian convoy was determined to be carrying weapons and ammunition rather than food and other sorts of aid, and there is history of that in Ethiopian wars. Is this a legitimate stance on their part?

FAB: That's legitimate, as long as they are letting aid in. They can check it for weapons. Sure. I don't see any legal problem with that.

AG: Do you think the TIgrayans really want to secede? 

FAB: The head of the Tigrayan forces recently said that for now he's not interested in proclaiming Tigray's independence from Ethiopia. But he could. And who knows what would happen then? I shudder to think. 

AG: I think the first and most contentious issue would probably be the territorial dispute over what the TPLF, the US, and other Western nations call “Western Tigray,” but which the Amhara say is ancestral Amhara land. The TPLF redrew boundaries to claim it as their own after coming to power in the 1990s, but the Amhara Regional Forces have taken it back during the conflict that began last November.  So, even if Tigray were to secede from Ethiopia with the government’s agreement, it's not clear what the boundaries of the secession would be.

FAB: Well, that could set off the crack up of a state, like what Obama and Samantha Power, Anne-Marie Slaughter, and Susan Rice caused in Libya. As I’m sure you know, that whole state cracked up and remains in a dire situation today. We also saw Yugoslavia crack up in the 1990s, and that could be the consequence if Tigray declares independence. It could be what the US wants if it can’t tell Ethiopia what to do.

I'm not saying that Tigray can't secede. Under international law, people under these circumstances, can declare independence. I'm not encouraging it and I've represented several clients over the years who have declared independence, and they have paid a very high price for doing that in blood and treasure. So it's not something to be taken lightly at all.

AG: So much of what people are now claiming is right and lawful depends on investigations that haven't been done. And that can't very well be done in a conflict situation. Various parties to the conflict post photographs of atrocities on Twitter and several times I've noticed that these are photographs I'm familiar with, from other conflicts that took place years ago. So there doesn't seem to be solid evidence about what is happening in a number of situations.

FAB: This is typical of international and internal military conflicts of this nature. It's very difficult at the beginning to sort out precisely what is going on. And of course, sure, everyone publishes atrocity photos to build up public support for their side, but that cannot justify military intervention like that Obama and Power used to destroy Libya, or Responsibility to Protect (R2P) doctrine. Those are totally fraudulent.

I've written about that, in a book, “Destroying Libya and World Order,” and I have a whole chapter in there, just demolishing those two arguments. You can't allow these allegations of atrocities to manipulate you into supporting the use of outside military force to solve this problem. I'm afraid US military intervention here will only make the situation worse. So I'm calling for a diplomatic intervention in good faith by the United States, assuming they have good faith.

AG: That’s quite an assumption.

FAB: That's another issue. But the US, Russia and China, the major powers, and the UNSC should try to keep this thing under control and resolve it. Because again, the longer this goes on, the more likely Ethiopia is to crack up as a state. And that would be a catastrophe for the entire Horn of Africa and perhaps even a wider region.

AG: The UN Security Council has considered this a number of times with the same result. Russia, China, India, and Kenya speak up for Ethiopia’s sovereignty, and say that this is a matter internal to Ethiopia for Ethiopians to solve. The African Union has come to the same conclusion.

FAB: This is an internal armed conflict. That being said, however, I would still hope that some of the great powers would get involved in international mediation here. There are many techniques for peaceful settlement of international disputes to  try to resolve this before Ethiopia does crack up. If Tigray declares independence, all bets are off on anything.

AG: Well, on the other side of the aisle, the other three nations with veto power are the US, UK, and France. And they and their allies are constantly raising humanitarian alarm and seeming to suggest that some sort of intervention to protect the people of Tigray is going to be necessary. Secretary of State Blinken has issued ominous warnings that if the Ethiopian government doesn't do its bidding, basically, there will be grave consequences. There are already sanctions on specific leaders though not on the people as a whole. And no one is more adamant in all this than Samantha Power.

FAB: Well, now she's head of USAID, which we all know is a front organization for the Central Intelligence Agency. And unfortunately, she also sits on Biden's National Security Council. And you know, she's just a rabid warmonger. She was behind convincing Obama to destroy Libya, along with Mrs. Clinton. And Anne-Marie Slaughter, the head of the State Department policy planning staff. And Susan Rice, Obama’s National Security Council advisor for Obama, who is now part of the Biden Administration.

That’s what they did to Libya and then Syria while invoking humanitarian law. It's the same method of operation. All these Bidenites used to work for Obama, including Biden himself. So yes, this is a dangerous situation, if they're going to continue to push for some type of military humanitarian intervention.

I'm encouraging diplomatic negotiations before the situation gets completely out of control, and those statements by Biden, Blinken, and Samantha Problem from Hell Power don't help anything at all. I think that certainly the Russians and the Chinese would veto any type of Security Council resolution authorizing outside military force under these circumstances.

AG: There’s a UN Office on Genocide and the Responsibility to Protect, but the doctrine has never been incorporated into the UN Charter, has it? If it had, it would violate the Charter’s first principle, and the first principle of international law, which is the sovereignty of member nations.

FAB: No, it’s never been added to the UN Charter in and, as a matter of fact, what happened was this:

In the 1990s, when Clinton and NATO bombed Serbia over Kosovo, they tried to sell it on grounds of humanitarian intervention, but no one bought that argument. So then they they tried to come up with a new euphemism for humanitarian intervention. Old wine in a new bottle. So they called it Responsibility to Protect, and you can go back and read Gareth Evans, the primary author of the Responsibility to Protect Doctrine, and others, and see that the criteria they establish contradicts the UN Charter on the threat and use of force and substitutes the Christian doctrine of a just war for the UN Charter rules on the use of force.

Now think about that for a minute. The Christian doctrine of a just war. I mean, that goes back to St. Augustine. I teach a course on jurisprudence, the philosophy of law, and I lecture my law students on the Christian doctrine of a just war. We have the United Nations Charter to counter it because every state in the world today has agreed upon the rules of the Charter, but they certainly have not agreed upon the Christian doctrine of just war. Or the Hindu doctrine of the just war. Or the Hebrew doctrine of just war, which the Israeli government likes to apply all the time, claiming God gave them the land of Israel. What about the Muslim doctrine of just war? Oh, excuse me, that's jihad, you know, which everyone condemns all the time.

So the UN Charter was written to transcend these religious doctrines with one set of rules that we can all agree upon. I discussed all this at greater length in my book, “Destroying Libya and World Order,” about how Obama and Power and Rice and Amy Goodman on Democracy Now, and Juan Cole at the University of Michigan, all tried to justify stealing Libya's oil and destroying Libya as a state on the grounds of Responsibility to Protect humanitarian intervention.

The tie-in to the Christian doctrine of just war should expose it all right now. That was that, as far as Christians were concerned, any war they ever fought against non Christians was just.

AG: Empire is always self righteous.

FAB: Yes, and these bogus doctrines like humanitarian intervention and R2P have historically been used by powerful military states in Europe and the United States to go to war in Third World countries primarily inhabited by people of color. There are both racial and religious components. So it's an extremely dangerous doctrine.

And conversely, is anyone talking about humanitarian intervention, or Responsibility to Protect the Palestinians from what Israel is doing to them? That proves the hypocrisy of the doctrine.

AG: There are well over half a million homeless people in the United States, 40% of them black, and 34% of US prisoners are Black, even though the Black population in the US is only 13.4%, but nobody's daring to say they have a responsibility to protect them.

But is there any situation where a determination that genocide, war crimes, and crimes against humanity are being committed within a nation’s internal armed conflict—not by an outside aggressor—can justify the use of outside force in accordance with international law?

FAB: Not unilateral intervention. But if there are massive atrocities along the lines of genocide or something like that, certainly the Security Council should do deal with it, in my opinion. And that's what the UN General Assembly said. If war crimes, crimes against humanity, and/or genocide are going on in a country, the Security Council should deal with it. The Charter authorizes the Security Council to organize a multilateral response if they can agree on it.

Chapter Seven of the UN Charter says that the Security Council has authority to deal with breaches of the peace, acts of aggression, or threats of the peace, and certainly outright genocide would be a threat to the peace.

The Security Council would have to agree that the level of humanitarian crisis rose to the level that called for a UN Security Council intervention. Then there are variety of measures that they can take. As is laid out in Chapter 7 of the UN Charter, this would basically require the five permanent members to sit down and come up with an agreement on how to proceed.

AG: But they're deadlocked, just as they were during the Korean War and the Vietnam War. The Council is now deadlocked on Syria, Venezuela, Ethiopia, and most other situations, except for the Democratic Republic of the Congo, where the major powers seem to have agreed that UN Peacekeepers will manage the conflict while they share the spoils, Congo’s vast natural resource wealth.

Deadlock is better than dominance by the United States, which was the case in the 90s. But it seems extremely unlikely that the Security Council is going to agree on Ethiopia.

FAB: Well, I think we should point out nevertheless that if the US government were serious, it would try to sit down with Russia and China, and come up with measures for the peaceful resolution of this dispute.

There is one other mode here. That is, if there is a deadlock at the Security Council, meaning if at least one of the permanent five members with veto power—the US, UK, France, China, and Russia—is threatening a veto, then, under the Uniting for Peace Resolution, the issue could be turned over to the United Nations General Assembly to deal with. But it's really the Security Council that's supposed to take first crack at it. We'll just have to see.

AG: This is the first time I’ve ever heard of the Uniting for Peace Resolution. Has it ever been used?

FB: Yes. I have also advised the Palestinians to use it and they have repeatedly. See my book “Breaking All The Rules, Palestine, Iraq, Iran and the Case for Impeachment.”

AG: OK, finally, I thought we might have news of the Ethiopian elections by the time we had this conversation, but we don’t.  Instead there’s news that Ethiopia has notified Egypt that it's begun the second filling of the Grand Ethiopian Renaissance Dam, which Sudan and Egypt are adamantly opposing. Do you have any thoughts about this?

FAB: Well, yes, there was going to be a meeting of the Security Council on this matter. It looks like Ethiopia has tried to preempt the Security Council. My understanding is that Ethiopia prefers to have this dealt with by the African Union, which is the appropriate regional organization under Chapter Eight of the United Nations Charter. The African Union should have been given the first crack at resolving this matter, under the terms of the UN Charter, as a regional organization.

That being said, of course, the Security Council can step in. I haven't looked at this in a long time. I believe there is a treaty involving the riparian states regulating the flow of water. But it might have been imposed by the British when they were a colonial power in the region and therefore may no longer be relevant.

The Security Council meeting has been requested by the Arab states, who are siding with Egypt and Sudan, and they didn't want to let the AU deal with it, because there are a lot of Black states there. So that's why I think they’re trying to jump it up to the Security Council right now.

AG: There is fear of a war over filling the dam, and the dam itself is under military guard. Trump at one point warned Ethiopia that he might help Egypt blow it up. There’s also fear that, since the US is hostile to the Ethiopian government and its ally, Eritrea, the US might back some sort of proxy war against both led by Egypt.

FAB: That would be a disaster, and the dam would not be grounds for the use of military force by Egypt and Sudan against Ethiopia. All riparian states have right of access to that water.

Francis Boyle teaches law at the University of Illinois at Urbana-Champaign and represents clients, who have included Libya and Palestine, in cases involving international law. He is the author of “Destroying Libya and World Order.”

Ann Garrison is a Black Agenda Report Contributing Editor based in the San Francisco Bay Area. In 2014, she received the Victoire Ingabire Umuhoza Democracy and Peace Prize for promoting peace through her reporting on conflict in the African Great Lakes Region. She can be reached on Twitter @AnnGarrison and at ann(at)anngarrison(dot)com.

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