Eritrea-Ethiopia Claims Commission
The Eritrea-Ethiopia Claims Commission was established and operates pursuant to Article 5 of the Agreement signed in Algiers on December 12, 2000 between the Governments of the State of Eritrea and the Federal Democratic Republic of Ethiopia (the “December Agreement”).
The Commission was directed to “decide through binding arbitration all claims for loss, damage or injury by one Government against the other, and by nationals (including both natural and juridical persons) of one party against the Government of the other party or entities owned or controlled by the other party that are (a) related to the conflict that was the subject of the Framework Agreement, the Modalities for its Implementation and the Cessation of Hostilities Agreement, and (b) result from violations of international humanitarian law, including the 1949 Geneva Conventions, or other violations of international law.”
Pursuant to the December Agreement, the Commission is an independent body. Its seat is in The Hague, although it did meet informally with the parties elsewhere.
The Commision’s composition was as follows:
Professor Hans van Houtte (President)
Judge George Aldrich (appointed by Ethiopia)
Mr. John Crook (appointed by Eritrea)
Dean James Paul (appointed by Ethiopia)
Ms. Lucy Reed (appointed by Eritrea)
The Permanent Court of Arbitration (“PCA”) served as registry to the Commission.
The Commission held informal meetings on organizational matters with representatives of the parties at the PCA’s premises in March and May of 2001. In July 2001, it held hearings on significant questions related to its jurisdiction, procedures and possible remedies. The Commission benefited from substantial memoranda filed by the parties prior to both the May and July sessions. In August 2001, the Commission issued its Decisions Numbers 1-5. These address significant jurisdictional and procedural issues bearing on the preparation and presentation of claims. In August 2001, representatives of the Commissions and of both parties met informally with claims experts from the International Organization on Migration to discuss technical issues related to the design and implementation of possible mass claims filing systems. During this period, the Commission provided additional procedural guidance in several letters to the parties.
In October 2001, following consultations with the parties, the Commission adopted its Rules of Procedure. As required by Article 5(7) of the December Agreement, the Commission’s Rules are based on the PCA’s Optional Rules for Arbitrating Disputes Between States, adapted to reflect the Commission’s mandate and anticipated workload.
In December 2001, both parties filed their claims in compliance with the 12 December 2001 filing deadline established by Article 5(8) of the December Agreement. Neither party utilized the possibility, created by Chapter Three of the Commission’s Rules, of filing claims utilizing possible mass claims procedures. State-to-state claims were filed on behalf of the Government of Ethiopia. The Government of Eritrea filed claims on its behalf, as well on behalf of named individuals. The claims filed by the parties relate to such matters as the conduct of military operations in the front zones, the treatment of POWs and of civilians and their property, diplomatic immunities and the economic impact of certain government actions during the conflict. Although the total number of claims filed by each party differs, several of Ethiopia’s claims include extensive sub-elements. Accordingly, the overall scope of the issues raised in the two parties’ claims appears broadly similar.
After the claims were filed, the Commission analyzed the initial filings and requested and received the parties’ views regarding the priorities and sequence for its work. Taking account of the views of both parties, in February 2002, the Commission scheduled the filing of statements of defense in all claims. Both parties have filed all of their statements of defense in accordance with this schedule. (The Commission’s February 2002 order indicated that the Commission did not expect to authorize additional time for the statements of defense, and it has not done so.) The Commission decided to bifurcate its further work by dealing first with issues of liability and only subsequently with the determination of damages.
In May 2002, the Commission identified the first three sets of claims for oral hearings, and set the dates for hearings on liability, memorials and counter-memorials in those claims. The Commission decided to begin with the two parties’ claims alleging mistreatment of their respective prisoners of war; followed by their claims of misconduct related to the armed conflict in the Central Front; followed by their allegations of mistreatment of civilians. Memorials and some counter-memorials have been filed in these three groups of cases as ordered. Following an informal meeting with the parties in July 2002, the Commission also established a schedule for the filings and initial hearings in all of the remaining claims. In August 2002, the President of the Commission met in Geneva with officials of the International Committee of the Red Cross. This meeting sought to determine whether the ICRC would consent to the parties’ use in the POW claims of certain materials originated by the ICRC and in the parties’ possession. The ICRC was not prepared to consent to such use by the parties.
The Commission’s hearings on the parties’ prisoner of war claims took place as scheduled over ten hearing days at the Peace Palace in December 2002. The Partial Awards are available below.
In light of requests received from both parties, the Commission in February 2003 adjusted its schedule of future filings and hearings to take account of requirements resulting from other proceedings involving the parties and of the breadth and complexity of the work remaining to be done. Throughout this process, the Commission and the parties have worked cooperatively, with a view to expeditious and orderly resolution of the Commission’s caseload. The Commission and the parties have met informally several times to discuss possible means for focusing and facilitating the claims process. (The December Agreement calls for the Commission to endeavor to complete its work within three years of the closing date for filing claims.)
On September 1, 2003, the Federal Democratic Republic of Ethiopia asked the Commission to provide an interpretation of the partial award in Ethiopia’s claim under Article 21 of the Commission’s Rules of Procedure. After receiving the views of both parties, the Commission declined that request expressing doubts whether it involved a matter of interpretation for purposes of the Rules.
The Commission also noted that the specific provisions cited in the request related to matters different from the subject of the request. Emphasizing that providing an interpretation lies in its discretion, the Commission recalled the great volume of pending work and the parties’ and Commission’s common determination to complete it in an expeditious and orderly way.
The Commission held hearings in camera at the Peace Palace on the Central Front claims from both parties from 11 to 21 November 2003. The Partial Awards, released on April 28, 2004, are available below.
The Commission held hearings in camera at the Peace Palace on the Home Front claims from both parties from 9 to 19 March 2004.The Partial Awards, released on December 17, 2004, are available below.
The Commission held hearings in camera at the Peace Palace on the parties’ remaining liability claims in April 2005. The Awards, as well as the Commission’s Decision No. 6, released on December 19, 2005, are available below.
The Commission held the first round of hearings in the damages phase in April 2007. The Commission issued Decision No. 7 “Guidance Regarding Jus ad Bellum Liability”, and Decision No. 8 “Relief to War Victims” on July 27, 2007. The Decisions are available below.
The Commission held the second round of hearings in the damages phase in May 2008.
The Commission rendered its Final Awards on Damages in each Party’s Claims on August 17, 2009.
General information on the activities of the Commission was provided by the Chairman for inclusion in the first report of the Secretary-General of the United Nations to the Security Council, which can be downloaded here in PDF:
Progress Report of the Secretary-General on Ethiopia and Eritrea, September 4, 2003
Progress report of the Secretary-General on Ethiopia and Eritrea, June 19, 2001
DECISION NUMBER 1:
The Commission’s Mandate/ Temporal Scope of Jurisdiction
Under Article 5(1) of the Agreement of December 12, 2000 (“The Agreement”), the Commission has jurisdiction over “all claims for loss, damage or injury by one Government against the other, and by nationals (including both natural and juridical persons) of one party against the Government of the other party . . . that are (a) related to the conflict that was the subject of the Framework Agreement, the Modalities for its Implementation and the Cessation of Hostilities Agreement, and (b) result from violations of international humanitarian law, including the 1949 Geneva Conventions, or other violations of international law.”
A. No Supervisory Jurisdiction Over Interpretation or Application of the December Agreement. The Commission decides that claims regarding the interpretation or implementation of the Agreement as such are not within this grant of jurisdiction. Such an important grant of jurisdiction cannot be implied. Neither the text of Article (5)1 nor any other part of the Agreement gives such a supervisory role to the Commission. This contrasts with the jurisdiction of the Iran-United States Claims Tribunal, which was expressly authorized to decide disputes regarding the interpretation and application of the Claims Settlement Declaration.
B. Claims Arising During the Conflict. The Commission believes that the central reference point for determining the scope of its mandate under Article (5)1 of the Agreement is the conflict between the parties. In the overall context of the relevant documents cited in Article (5)1, the Commission understands this to mean the armed conflict that began in May 1998 and was formally brought to an end by the Agreement on December 12, 2000. There is a presumption that claims arising during this period “relate to” the conflict and are within the Commission’s jurisdiction.
C. Claims After December 2000. The Commission has concluded that certain claims associated with events after December 12, 2000 may also “relate to” the conflict, if a party can demonstrate that those claims arose as a result of the armed conflict between the parties, or occurred in the course of measures to disengage contending forces or otherwise to end the military confrontation between the two sides. These might include for example, claims by either party regarding alleged violations of international law occurring while armed forces are being withdrawn from occupied territory or otherwise disengaging in the period after December 12, 2000. Any such claims must be filed within the filing period established by the Agreement. Moreover, as noted in Part A above, the Commission does not have jurisdiction over claims for alleged breached of the Agreement.
D. Claims Before May 1998. The Commission believes that Claims arising prior to May 1998 are of a different character and do not come within its jurisdiction. Logically, such claims cannot “relate to” the conflict in the direct sense indicated above for certain claims arising after December 12, 2000, because the armed conflict that is the central focus of the Commission’s jurisdiction had not yet occurred. Accordingly, the Commission must examine whether there are other ways to interpret the term “related to” that would be in harmony with the term’s ordinary meaning and the purpose and structure of the December Agreement.
In their papers and in oral argument, both Parties recognized that this concept might be given broad interpretations that would bring within the Commission’s jurisdiction long-standing legal controversies, not just going back to July and August 1997, but perhaps going back for decades. 1 Neither Party suggested that the Commission adopt such a broad interpretation. Indeed, such an interpretation could not be effectively implemented given the limited capacity and resources of the five-member claims commission created by the December 12 Agreement. However, the arguments presented in support of jurisdiction over events prior to May 1998 did not indicate to the Commission any principled way to interpret the text to avoid this extreme result, a result apparently not intended by either Party.
Moreover, the Commission’s mandate under Article 5 must be construed so as to be in harmony with the overall institutional structure established by the Agreement. In this regard, the Parties gave two other institutions clear and expansive mandates regarding events that occurred before the outbreak of the armed conflict. It is difficult to see how this Commission could inquire into and pass judgement regarding events prior to May 1998 and without running afoul of the mandates of these other bodies.
For example, during oral argument, it was urged that certain claims arising before May 1998 should fall within the Commission’s jurisdiction. However, these disputes essentially resulted from the Parties’ disagreements over the location of their boundary. Article 4 of the Agreement creates a neutral Boundary Commission, and gives to that Commission alone the responsibility for determining the boundary. It would not be consistent with the structure created by the Agreement for this Commission to attempt to arbitrate a dispute that has at its heart the question of the correct location of the boundary.
The Parties assigned other important responsibilities regarding events prior to May 1998 to yet another body. Under Article 3 of the Agreement, an independent impartial body appointed by the Secretary-General of the OAU is to carry out an investigation “on the incidents of 6 May 1998 and on any other incidents prior to that date which could have contributed to a misunderstanding between the parties regarding their common border, including the incidents of July and August 1997.” Again, it is difficult to see how this Commission could exercise jurisdiction with respect to the events occurring prior to May 6, 1998 that are most in dispute between the parties without running afoul of the mandate of the investigating body authorized by Article 3.
Thus, the Parties expressly gave to mechanisms other that this Commission the primary responsibility for deciding questions related to the boundary and for assessing the character and consequences of controversies between the Parties before the outbreak of the armed conflict in May 1998. Given this, the Commission believes that it would not be proper for it to interpret the words of Article 5 to include as well claims for violation alleged to occur before the outbreak of the armed conflict in May 1998, on the ground that those claims “relate to” that conflict.
DECISION NUMBER 2:
Claims Categories, Forms and Procedures
A. Claims Categories.
The Commission has decided that claims may be filed in the following six categories:
Category 1 – Claims of natural persons for unlawful expulsion from the country of their residence;
Category 2 – Claims of natural persons for unlawful displacement from their residence;
Category 3 – Claims of prisoners of war for injuries suffered from unlawful treatment;
Category 4 – Claims of civilians for unlawful detention and for injuries suffered from unlawful treatment during detention;
Category 5 – Claims of persons for loss, damage or injury other than those covered by the other categories;
Category 6 – Claims of Governments for loss, damage or injury.
B. Mass Claims Procedures/ Fixed Amount Compensation.
The Commission has decided to establish a mass claims process under which claims of persons in Categories 1-5 may be filed for fixed amount compensation. The Parties shall prepare claims forms for all such claims, using forms to be established by the Commission. Specified data derived from those forms may be filed with the Commission in electronic form pursuant to guidance the Commission will provide.
Each Party will group its claims in each Category in sub-categories that it selects, in such a manner that each sub-category contains all of that Party’s claims in that Category alleged to arise from a particular violation of international law and/or from the same events.
Subject to further decisions by the Commission, fixed amount compensation shall be available in two tiers depending on the type of evidence available. The amount in each tier shall be decided by the Commission after receiving further views and evidence from the Parties. Fixed amount compensation shall be available in accordance with procedures to be established in Chapter Three of the Commission’s Rules of Procedure.
B. Other Claims.
All claims in Category 6, and those claims in Categories 1 through 5 that seek to prove actual damages or otherwise require individual consideration, shall be filed in accordance with procedures to be established in Chapter Two of the Commission’s Rules of Procedure.
DECISION NUMBER 3:
Remedies
The Commission decides that, in principle, the appropriate remedy for valid claims submitted to it should be monetary compensation. However, the Commission does not foreclose the possibility of providing other types of remedies in appropriate cases, if the particular remedy can be shown to be in accordance with international practice, and if the Tribunal determines that a particular remedy would be reasonable and appropriate in the
DECISION NUMBER 4:
Evidence
The Parties are reminded that under Article 5(13) of the Agreement of December 12, 2000, the Commission is bound to apply the relevant rules of international law and cannot make decisions ex aequo et bono. The rules that the Commission must apply include those relating to the need for evidence to prove or disprove disputed facts.
The Commission therefore calls on the Parties to pay particular attention to matters related to evidence in the collection and preparation of claims. The Commission expects the Parties to develop guidance for all personnel who collect or prepare claims, emphasizing the importance of evidence, and indicating the types of evidence potentially available.
The Commission calls on Counsel for both Parties to be in contact regarding this matter, and strongly encourages the Parties to harmonize the guidance regarding evidentiary matters that each Party provides to its personnel who collect and prepare claims.
DECISION NUMBER 5:
PARTIAL AWARD – CENTRAL FRONT – ERITREA’S CLAIMS 2, 4, 6, 7, 8 & 22
Wed, 28 Apr 2004 09:51:46
The Respondent is liable to the Claimant for the following violations of international law committed by its military personnel or by other officials of the State of Ethiopia:
1. For permitting the looting and stripping of buildings in Tserona Town while it occupied the town from late May 2000 until late February 2001, it is liable for 75% (seventy-five percent) of the total damage caused by looting and stripping in the town;
2. For permitting the looting and stripping of the adjacent Tserona Patriots Cemetery, it is liable for 75% (seventy-five percent) of the total damage caused by looting and stripping of the cemetery;
3. For the destruction of the Sub-Zoba Administrative Building, the Sub- Zoba Health Center, and the Warsai Hotel in Tserona Town;
4. For inflicting damage on the infrastructure of the village of Serha during its occupation of that village, it is liable for 70% (seventy percent) of the total damage inflicted on Serha from May 1998 through February 2001;
5. For failure to take effective measures to prevent rape of women by its soldiers during its occupation of Senafe Town;
6. For permitting looting and stripping in Senafe Town during its occupation, it is liable for 75% (seventy-five percent) of the total damage from looting and stripping suffered in the town between May 26, 2000 and June 2001;
7. For the unlawful destruction of or severe damage to the following thirteen major structures in Senafe Town during the Ethiopian occupation of the town, and
8. For permitting, while occupying the area, deliberate damage by explosion to the Stela of Matara, an ancient monument in the Senafe Sub-Zoba.
PARTIAL AWARD – CENTRAL FRONT – ETHIOPIA’S CLAIM 2
Wed, 28 Apr 2004 09:50:19
The Respondent is liable to the Claimant for the following violations of international law committed by its military personnel or by other officials of the State of Eritrea:
1. For permitting in Mereb Lekhe Wereda frequent physical abuse of civilians by means of intentional killings, beatings and abductions, as well as widespread looting and property destruction in the areas that were occupied by its armed forces from May 1998 to May 2000;
2. For permitting in Ahferom Wereda frequent physical abuse of civilians by means of intentional killings, beatings, abductions and wounds caused by small-arms fire, as well as widespread looting and property destruction in the areas that were occupied by its armed forces from May 1998 to May 2000;
3. For permitting in Gulomakheda Wereda frequent physical abuse of civilians by means of intentional killings, beatings and abductions during the invasion in June 1998 and less frequent, but recurring, physical abuse of civilians and frequent looting and destruction of civilian property in the areas that were occupied by its armed forces from June 1998 to June 2000;
4. For permitting the looting and stripping of Zalambessa Town;
5. For the deliberate, unlawful destruction of 75% (seventy-five percent) of the structures in Zalambessa Town;
6. For permitting in Irob Wereda a recurring pattern of excessive violence by Eritrean soldiers against civilians, including frequent beatings and intentional killings, and frequent severe beating and other abuse of civilians taken into custody, as well as widespread looting and property destruction in the areas that were occupied by its armed forces from May 1998 to June 2000;
7. For failing to take effective measures to prevent rape of women by its soldiers in Irob Wereda;
8. For failing to release civilians taken into custody in Irob Wereda and to provide information regarding them; and
9. For failing to take all feasible precautions to prevent two of its military aircraft from dropping cluster bombs in the vicinity of the Ayder School and its civilian neighborhood in the town of Mekele on June 5, 1998, and for the resulting deaths, wounds and suffering by civilians and the physical damage to civilian objects.
PARTIAL AWARD – CIVILIANS CLAIMS – ERITREA’S CLAIMS 15, 16, 23 & 27-32
Fri, 17 Dec 2004 09:48:40
The Respondent is liable to the Claimant for the following violations of international law involving acts or omissions by its civilian officials, military personnel or others for whose conduct it is responsible:
1. For erroneously depriving at least some Ethiopians who were not dual nationals of their Ethiopian nationality;
2. For arbitrarily depriving dual nationals who remained in Ethiopia during the war of their Ethiopian nationality;
3. For arbitrarily depriving dual nationals who were present in third countries during the war of their Ethiopian nationality;
4. For arbitrarily depriving dual nationals who were expelled to Eritrea but who were not screened pursuant to Ethiopia’s security review procedure of their Ethiopian nationality;
5. For permitting local farmers, militia or police forcibly to expel rural people, many or most of whom were solely Ethiopian nationals, from rural areas near the border;
6. For permitting the forcible expulsion to Eritrea of some members of expellees’ families who did not hold Eritrean nationality;
7. For permitting local authorities forcibly to expel to Eritrea an unknown, but considerable, number of dual nationals for reasons that cannot be established; 8. For frequently failing to provide humane and safe treatment to persons being expelled to Eritrea from Ethiopia;
9. For holding Eritrean civilians on security related charges in prisons and jails under harsh and unsanitary conditions and with insufficient food, and for subjecting them to beatings and other abuse;
10. For detaining Eritrean civilians without apparent justification, holding them together with prisoners of war, and subjecting them to harsh and inhumane treatment while so held;
11. For limiting to one month the period available for the compulsory sale of sale of Eritrean expellees’ real property;
12. For the discriminatory imposition of a 100% “location tax” on proceeds from some forced sales of Eritrean expellees’ real estate;
13. For maintaining a system for collecting taxes from Eritrean expellees that did not meet the required minimum standards of fair and reasonable treatment; and
14. For creating and facilitating a cumulative network of economic measures, some lawful and others not, that collectively resulted in the loss of all or most of the assets in Ethiopia of Eritrean expellees, contrary to Ethiopia’s duty to ensure the protection of aliens’ assets.
PARTIAL AWARD – CIVILIANS CLAIMS – ETHIOPIA’S CLAIM 5
Fri, 17 Dec 2004 09:47:20
The Respondent is liable to the Claimant for the following violations of international law committed by its military personnel or by other officials of the State of Eritrea:
1. For permitting in Mereb Lekhe Wereda frequent physical abuse of civilians by means of intentional killings, beatings and abductions, as well as widespread looting and property destruction in the areas that were occupied by its armed forces from May 1998 to May 2000;
2. For permitting in Ahferom Wereda frequent physical abuse of civilians by means of intentional killings, beatings, abductions and wounds caused by small-arms fire, as well as widespread looting and property destruction in the areas that were occupied by its armed forces from May 1998 to May 2000;
3. For permitting in Gulomakheda Wereda frequent physical abuse of civilians by means of intentional killings, beatings and abductions during the invasion in June 1998 and less frequent, but recurring, physical abuse of civilians and frequent looting and destruction of civilian property in the areas that were occupied by its armed forces from June 1998 to June 2000;
4. For permitting the looting and stripping of Zalambessa Town;
5. For the deliberate, unlawful destruction of 75% (seventy-five percent) of the structures in Zalambessa Town;
6. For permitting in Irob Wereda a recurring pattern of excessive violence by Eritrean soldiers against civilians, including frequent beatings and intentional killings,and frequent severe beating and other abuse of civilians taken into custody, as well as widespread looting and property destruction in the areas that were occupied by its armed forces from May 1998 to June 2000;
7. For failing to take effective measures to prevent rape of women by its soldiers in Irob Wereda;
8. For failing to release civilians taken into custody in Irob Wereda and to provide information regarding them; and
9. For failing to take all feasible precautions to prevent two of its military aircraft from dropping cluster bombs in the vicinity of the Ayder School and its civilian neighborhood in the town of Mekele on June 5, 1998, and for the resulting deaths, wounds and suffering by civilians and the physical damage to civilian objects.
Partial Awards:
Prisoners of War – Eritrea’s Claim 17
Prisoners of War – Ethiopia’s Claim 4
Central Front – Eritrea’s Claims 2, 4, 6, 7, 8 & 22
Central Front – Ethiopia’s Claim 2
Civilians Claims – Eritrea’s Claims 15, 16, 23 & 27-32
Civilians Claims – Ethiopia’s Claim 5Western and Eastern Fronts – Ethiopia’s Claims 1 & 3
Diplomatic Claim – Eritrea’s Claim 20
Diplomatic Claim – Ethiopia’s Claim 8
Loss of Property in Ethiopia Owned by Non-Residents – Eritrea’s Claim 24
Economic Loss Throughout Ethiopia – Ethiopia’s Claim 7
Jus Ad Bellum – Ethiopia’s Claims 1-8
Final Awards:
Press Release:
Short URL: https://english.farajat.net/?p=2926
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