The Tigray People’s Liberation Front: A Provincial Ruling Political Party turned into a Rebel Government

About the author(s):

Marishet Mohammed Hamza is a PhD Candidate in international law at the Geneva Graduate Institute of International and Development Studies. His project focuses on the challenges to the applicability of international law obligations in the context of contemporary armed conflicts involving multiple and fragmented non-state armed groups. Marishet is an alumnus of the Geneva Academy of International Humanitarian Law and Human Rights. He previously worked as a lecturer at the School of Law of Jigjiga Universities and Wolaita Sodo University in Ethiopia.

The ongoing non-international armed conflict (NIAC) in the northern part of Ethiopia, mainly in the Tigray region, pitted the Ethiopian National Defence Force (ENDF) and allied forces (including troops from neighbouring Eritrea) against the Tigray Liberation Front (TPLF). The TPLF has been the governing political party in the Tigray region since 1991. It was also the dominant political party in the coalition that ruled Ethiopia from 1991 to 2019. When the coalition was reconfigured in late 2019, the TPLF withdrew, and its political authority has since been limited to the Tigray region. 

Focusing on the period since the TPLF restored its authority in Tigray, i.e., in late June 2021, this post provides factual details regarding the TPLF governance system in Tigray. It provides quite some detail on the constitution and practices of its legislative council, demonstrating that the TPLF now controls an area with a remarkably robust legislative system in place. Providing an overview of the new laws introduced by the TPLF, it considers whether its introduction of the death penalty for non-serious offences may be held to violate human rights law.  

Context to the current TPLF governance system

As one of the eleven provinces in the Ethiopian federal arrangement, Tigray has long had an autonomous regional government with a full-fledged government structure, including regional legislative, executive, and judicial bodies. Moreover, before the conflict started, the region had a paramilitary police force which became the ‘Tigray Defence Force (TDF)’ at the later stage of the conflict. The TDF and other local militia groups have been engaging in fighting against the Federal government and allied forces.

At the onset of the conflict, i.e., in late November 2020, the TPLF sustained a defeat, retreated to the rural mountainous areas of Tigray, and, consequently, lost its authority in Tigray. Nonetheless, after eight months of guerrilla warfare, in late June 2021 the TPLF retook control over most territories, regained its political power in Tigray, and restored the regional civilian administration that the federal government had dismantled. Consequently, the federal government’s authority over the region has been cut off, and the TPLF is carrying out de facto governmental functions with effective control over the Tigray region with an estimated six million population. The Federal government proscribed TPLF as a “terrorist group” in May 2021. 

TPLF as a rebel government

The notion of ‘rebel government’ is not recognised in international law. However, in other social science literature, the term generally refers to an NSAG that controls part of a state’s territory and exercises de factogovernment functions to regulate the social, economic, and political life of civilians (Jeremy Weinstein, 164; Reyko Huang, 52). Usually, a rebel group creates governance structures either for the sake of regulating the people under its control (such as to provide public services, protection of security, resolution of disputes, etc. – Zachariah Mampilly, 4) or, at least for its own interests such as mobilizing resources, to recruit members, or acquire weapons (Nelson Kasfir, 24). Considering the fact that TPLF still claims authority over ‘the Tigray region’ within Ethiopia, for this blog post, it is considered a rebel government. 

Interestingly, unlike in most cases where NSAGs progressively establish a governance structure over an extended period (Zachariah Mampilly, 63-64), the TPLF’s rebel governance in the territories it regained control in June 2021 did not require it to set up new civilian administrative structures. Rather, the TPLF had to simply restore the apparatuses that had been dismantled by the Federal government and resume civilian governance. As a result, the TPLF is largely carrying out its governance mainly through the pre-existing bureaucracy. 

The Legislative Council in Tigray region

The Tigray region has a 190-seats regional state council that is elected every five years. The current members were elected in the contentious provincial election that the TPLF held in September 2020 in defiance of the Federal government’s decision to postpone the national polls due to the Covid-19 pandemic. Though the Federal government dismissed the election results and outlawed the state council, the TPLF avers its legitimacy, inter alia, based on the regional Constitution adopted in 1995, which created the council and defined its powers and responsibilities.

As the region’s highest organ of political power, the council has the mandate to legislate on all regional matters while observing certain restrictions under the regional Constitution, including the fundamental human rights guarantees (Constitution, Art.13). The Constitution’s fundamental human rights including economic, social, and cultural rights, and group rights such as the right to self-determination of people’s (Ibid, Arts.14-44). 

It is noteworthy that due to having such a legislative council with a constitutionally entrenched mandate, the TPLF now controls an area with a remarkably robust legislative system in place. It is also noteworthy that because the regional Constitution can provide a crucially important basis to invoke the human rights obligations of the rebel group. This may be helpful, considering that the nature and the degree to which human rights obligations apply to NSAGs remains contentious. 

New criminal legislation in Tigray

Since basic laws were already in place in the region, the TPLF’s legislative council has so far had very little to legislate. However, the regional council recently adopted a new criminal law applicable to the region. This law was enacted to partly replace the existing national criminal law and against the federal government’s exclusive authority to enact criminal laws (Federal Constitution, Art.55(5)). Indeed, it is not uncommon for rebel groups to pass legislation to secure law and order within territories under their control (Fortin, 164). Moreover, international law does not prohibit it as long as fundamental guarantees under IHRL or IHL are observed (Provost, 264). As such, the TPLF enacting new criminal legislation defying the federal criminal law cannot be considered an anomaly. 

The TPLF’s new criminal law proscribes acts such as refusal to perform military services, collaboration with the enemy (i.e., the Ethiopian government and allied forces), treason, unconstitutional change of government, and armed resistance. In addition, international crimes – mainly genocide and war crimes against civilians – are proscribed. Depending upon the circumstances and gravity of the acts, these crimes may entail from 15-25 years of imprisonment to the death penalty. Likewise, common crimes such as espionage, crimes against the territorial integrity of the ‘State of Tigray,’ theft, armed robbery, and mugging (which has allegedly become a major concern of insecurity in the region) may also entail life imprisonment or the death penalty in aggravated circumstances. Most of the crimes that entail the death penalty under the TPLF criminal law deviate from the existing national criminal law and IHRL treaties that prohibit states from imposing the death penalty for crimes that are not the most serious. 

The compatibility of the death penalty with IHRL

The introduction of the death penalty for these crimes raises the question of how such legislation by a rebel group would be treated in the eyes of IHRL. IHRL treaties limit the application of capital punishment “to the most serious crimes” (ICCPR, Art.6). According to the Human Rights Committee (HRC), these refer “to crimes of extreme gravity involving intentional killing” (GC36, §35). For the Committee, “crimes not resulting directly and intentionally in death … although serious in nature, can never serve as the basis … for the imposition of the death penalty” (ibid). The problem, however, is that this limitation clause is set in treaty laws that apply to states. Whether the same applies to the laws of rebel groups is debatable. It could be said to apply to NSAGs if the particular limitation clause has attained the status of customary international law and the scope of such customary rule encompasses armed groups. However, given the divergent state practice (William Schabas, 104-107), the existence of a customary rule even for states is questionable, let alone its applicability to NSAGs. Thus, it will be challenging to hold that rebel groups should formulate their legislation on the death penalty in light of the above limitation clause, as a matter of a customary human rights rule. 

One way out could be to pursue the line of reasoning the HRC has set as regards the nature of the rights that pertain to individuals as per the Covenant (ICCPR). As per the Committee, the nature of protection accorded by the Covenant “devolves with territory and continues to belong to them [the people] notwithstanding change in government of the state party, including dismemberment in more than one State or State succession … (GC26, §4). Accordingly, it could be argued that the IHRL limitations on the authority of a State regarding imposing the death penalty should also extend to the rebel groups that exercise effective control over territory and carry out governmental functions by displacing the authority of the de jure government.  In this regard, it should be noted that the limitation on imposing death as stated above may also emanate from the prohibition on arbitrary deprivation of life, which may occur if an armed group impose a death penalty for not most serious crimes (Stuart Casey-Maslen, 670).

This entails that, though the rebel group is not prohibited from adopting new laws or modifying existing laws to ensure law and order within the territory under its control, it should, however, be bound to observe the fundamental guarantees and limitations under IHRL that the territorial State had recognized. 

Perhaps most relevantly, when considering the TPLF, it should be remembered that that the regional Constitution recognizes the limitation clause on capital punishment by declaring that “No person shall be deprived of his or her life except for grave crimes defined by law” (Constitution, Art.16). Also, the Constitution demands the interpretation and enforcement of the rights and liberties recognized in the Constitution “in conformity with the UDHR, international human rights conventions, and with the principles of other relevant instruments which Ethiopia accepted or ratified” (Ibid, Art.13). This means that, what constitutes grave crimesis subject to be determined as per relevant international law standards. Therefore, the obligation of the TPLF to adhere to IHRL principles in applying the death penalty also comes from its Constitution. 

Conclusion

The fact that the TPLF had been ruling Tigray for over three decades and overseen the establishment of the bureaucracy of the region led the rebel group to retain the entire civilian administration system after it became a rebel government. This enabled the rebel group to possess a full-blown rebel governance apparatus, including formal legislative and judicial systems. As pointed out in this post, the existence of such a system, particularly the Tigray Constitution, which recognizes fundamental IHRL principles and guarantees, would be of significant practical importance as a means to enforce international law obligations of the rebel group.

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