Turn the R2P Around: Eritrea’s Intervention in Ethiopia
The US and UN have called for Eritrea to leave the Tigray region, despite Eritrea being invited in by the government in Addis Ababa. This blog post will examine what the legal justification outside actors can use to contradict the actions taken by a state’s government.
A man passes by a destroyed tank on the main street of Edaga Hamus, in the Tigray region, in Ethiopia, on June 5, 2021
By: John Clifford, Staff Member
Ethiopia’s civil war in the Tigray region brings with it a whole host of political and legal problems. Not least among them is the intervention of Ethiopia’s northern neighbor (and erstwhile province), Eritrea. A state accepting intervention in a Non-International Armed Conflict is normally appropriate under international law. However, the rampant human rights abuses in this war fundamentally change the analysis, based on the UN’s principle of Responsibility to Protect.
Eritrea’s traumatic relationship with Tigray, the northern Ethiopian province which it borders, is central to its relationship with Ethiopia. The Eritrean People’s Liberation Front (EPLF) supported the Tigrayan People’s Liberation Front (TPLF) in the overthrow of the Communist Derg regime. But Eritrean independence – and resistance to Tigrayan dominance of Ethiopia – spurred the 1998-2000 border war between the two countries, which resulted in years of tension. The conflict between Eritrea and the TPLF in many ways defines the relationship between the two countries. The election of Abiy Ahmed in 2018 – at the expense of the TPLF, which lost power in Addis Ababa after 30 years -- promised to bring a peaceful conclusion to the country’s disputes with Eritrea. Abiy even won the Nobel Peace Prize in 2019 for resolving the conflict. Those hopes have since proven to have been tragically misplaced.
Since 2020, Ethiopia has been stricken with a series of internal conflicts among the numerous ethnic groups in its federal system. The most destructive of these, by far, has been in Tigray. The conflict has, at the acceptance of Abiy, drawn the intervention of Eritrea and raged throughout northern Ethiopia for over two years. While much of the world’s attention is currently focused on Russia's illegal and immoral invasion of Ukraine (which has its own dire implications for the Horn of Africa), Ethiopia’s civil war – especially with Eritrea’s involvement –is no less complex or important.
Puzzlingly, it has engendered a situation where the U.S. has criticized Eritrea’s involvement not only for its potential to exacerbate a dire humanitarian crisis, but also for not “respect[ing] Ethiopia’s territorial integrity.” This criticism tracks with similar protestations from the UN, Kenya, and other nations. This is odd because Ethiopia’s government is allowing the intervention. In this case, how can territorial integrity come into play where the sovereign state welcomes the intrusion into its territory? Couldn’t these calls themselves be construed as an unnecessary meddling in Ethiopia’s internal affairs? The truth is that the two issues – the humanitarian situation and the nature of Ethiopia’s sovereignty – have become inextricably intertwined via the conflict.
Eritrea’s Third-Party Intervention into Ethiopia’s NIAC
Two doctrines are interacting in this situation: the Law of Armed Conflict as it applies to Non-International Armed Conflicts (NIAC) and the Responsibility to Protect (R2P). It is the failure to reconcile these two ideas that has brought us to Ethiopia’s byzantine situation regarding its territorial sovereignty.
First, let us consider NIACs. As its name suggests, a NIAC is an armed conflict limited within the confines of a State’s territory (although such conflicts can also result in spillover effects or activities into a neighboring state’s territory). To qualify as an NIAC, a conflict must “reach a certain threshold of confrontation,” to distinguish it from lower level disturbances such as riots, protests, or crime. For example, the recent disturbances in Iran would not qualify, because the government is the only side that currently has recourse to military force. The Ethiopian conflict, however, clearly does qualify. The Tigrayan Defense Forces, the well-organized army of the Tigrayan state/TPLF, conducted an offensive that approached within 200 kilometers of Addis Ababa only a year ago. With sufficient military parity, the Ethiopian situation rises above the level of mere domestic disturbance to full-on armed conflict.
Eritrea’s involvement also does not make this armed conflict international. Eritrea’s actions have for the most part taken place within Ethiopia’s borders. And despite some protestations from Eritrea’s government that fear of Tigrayan activity within its own territory is what triggered their response, Eritrea’s continued involvement clearly derives from the invitation or approval of an Ethiopian government afraid of a resurgent TPLF taking over the government – or at the very least distracting them from the numerous conflicts in other regions. Eritrea’s entrance as a co-belligerent, therefore, did not “internationalize” the conflict – and normally, it would be totally legal under international law. A State usually has a legitimate right to request outside assistance to quell a civil war. But the situation in Ethiopia appears to be different.
The Plot Thickens – R2P Issues in the Conflict
This brings us to the next doctrine at play – Responsibility to Protect (or “R2P”). R2P developed from the work of South Sudanese diplomat Francis Deng and the International Committee on Intervention and State Sovereignty, as a response to the atrocities committed in Rwanda and Yugoslavia in the 1990s – atrocities the world watched, but only intervened after the worst violence had already occurred. In 2005, the UN World Summit adopted it as official policy. Simply stated, the doctrine posits that State sovereignty includes a “responsibility to protect… its [a state’s] populations from genocide, war crimes, ethnic cleansing and crimes against humanity.” In short, allowing or committing war crimes delegitimates a state’s claim to sovereignty.
Since its adoption, R2P has been put into practice for conflicts in Libya, Cote d’Ivoire, Syria, and elsewhere. Normally, R2P creates a legal avenue for third-party states to intervene without the consent of either the State or its non-State adversary to stop war crimes. Even with this legal justification, third-party interventions can be fraught with moral and human consequences, despite the best intentions – just ask any ethnic Serb in Kosovo how they feel about NATO’s bombing campaign (or, for that matter, any Ukrainian how they feel about Russia; Putin’s plot to “de-Nazify” Ukraine is itself effectively an application R2P, just one based on invented atrocities).
Ethiopia’s situation, however, is different from most others because it engenders a sort of reverse-R2P situation. In Tigray, a state has invited another to intervene in a NIAC, resulting in war crimes. Eritrea has used the campaign to both exact retribution on the TPLF via attacks on Tigrayan civilians, and to round up political dissidents who had emigrated to escape Eritrea’s tyrannical regime. This undermines Ethiopia’s claim that this intervention is to protect its sovereignty. Having both perpetrated and allowed war crimes, Ethiopia is no longer protecting its population. By not upholding this aspect of sovereignty, there is a real legal argument that they have lost the legitimacy to invite third-party intervention. Such invitations are inherently an exercise of sovereignty. Just as the failure to uphold R2P obligations can warrant third-party interventions without the state’s consent, such a failure also eliminates the state’s sovereign right to request intervention in a NIAC.
It is this argument – that the Ethiopian government has lost its legitimacy to request outside intervention – which has de facto been adopted by the UN, the U.S., Kenya, and other nations and it is influencing the way they respond to Eritrea’s role in the conflict. It brings us to this weird situation where the U.S. envoy to Africa has called on Eritrea to “respect Ethiopia’s territorial integrity,” despite the Ethiopian government’s own acceptance of the intervention.
Normally, R2P justifies third-party intervention to stop war crimes from happening; that is the doctrine’s origins from the atrocities of the 1990s. It is almost playing out the reverse in Ethiopia’s NIAC: rather than justifying third-party intervention, R2P prohibits it. In fact, it reveals the shortcomings of the doctrine in a fractious international environment. Any intervention still requires a UN Security Council Resolution as authorization. Based on current tensions, it is far more clear that the Security Council would impose either military or legal resolutions, even if third-party states were willing to act. Additionally, the military and diplomatic situation, in which the African Union is brokering tense negotiations between the TPLF and the Ethiopian government amidst renewed offensives by government forces, would not warrant such direct intervention until the two sides come closer to a resolution.
R2P developed as part of a renewed international consensus against crimes against humanity, following the experiences of the late 20th century. Its applications in the last twenty years have reflected an international regime generally willing (albeit with serious exceptions) to prevent such tragedies. The situation in Ethiopia exemplifies the limitations of R2P. The doctrine points to a clear legal norm – the war crimes in the conflict absolutely preclude Eritrea’s intervention, even with Ethiopia’s acceptance. But that norm is unlikely to hold without the wherewithal, and international agreement, to enforce it.
John Clifford is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. He graduated from the United States Military Academy in 2015 and served as in infantry officer in the U.S. Army for six years prior to attending law school.