https://orcid.org/0000-0003-4977-4587
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ABSTRACT
This paper examines the litigation strategies adopted by Eritrea and Ethiopia before the Eritrea-Ethiopia Claims Commission convened at The Permanent Commission of Arbitration at The Hague between 2001 and 2009. I pursue insights from the work of Laura Nader concerning how, through binding arbitration, the international community imposes its power on disputing parties as opposed to allowing their competing legal claims to be fairly decided. The claims examined by this paper concern who started the border war and that Ethiopia denationalized ‘Eritrean’ nationals and unlawfully deprived them of their property. I conclude that the PCA’s decisions on Eritrea and Ethiopia were flawed and that its deliberations need to be viewed in a much wider political context; furthermore its decisions contributed to further political instability in the Horn of Africa.
Acknowledgements
I gratefully acknowledge the comments of two anonymous referees on this paper.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Campbell, Nationalism, Law and Statelessness, Chapter 2.
2 In 2009 I wrote to Prime Minister Meles, via the Ethiopian embassy in London, asking for information about the readmission of deported Eritreans back in Ethiopia under a 2009 Proclamation. My letter was intercepted by Berhanu Kebede, then ambassador to the UK, who refuted allegations that Ethiopia had deported its nationals. In 2010 I spoke with a senior official at the Ministry of Foreign Affairs in Addis Ababa about the status of deportees (see Campbell, Nationalism, Law and Statelessness).
3 Email correspondence 11 and 18 June 2020. On 11 June 2020 I wrote to the Deputy Head of Mission at the Eritrean Embassy in London asking for access to all of Eritrea’s the submissions made to the PCA.
4 The major study of litigation at the EECC was written by three members of Ethiopia’s legal team who clearly drew on Ethiopia’s legal submissions, see Murphy, Kidane and Snider, Litigating War.
5 Nader, “Civilization and its Negotiations,” Chap. 10.
6 Nader, The Life of the Law, Chap. 3.
7 See: Abbink, “Briefing”; Gilkes, Ethiopia – Perspectives on Conflict; Gilkes and Plaut, War in The Horn; Human Rights Watch, The Horn of Africa War; Iyob, “The Ethiopian-Eritrean Conflict.”
8 Eritrea, Counter-Memorials 2005.
9 Negash and Tronvoll, Brothers at War, Chap. 4. Their analysis is based on an exchange of letters between the President of Eritrea and the Prime Minister of Ethiopia prior to the outbreak of the war.
10 Eritrea, Counter-Memorials 2005, ¶1.20-f.
11 Eritrea’s submissions on this issue are contradictory. It states that the initial conflict occurred in Ethiopian-administered territory, but at ¶1.47 that the conflict occurred in Eritrean administered territory.
12 The Eritrean counter-memorial substantiates its allegations of Ethiopian actions with affidavits from Eritrean officers and soldiers, medical evidence regarding the death of Eritrean solders, a statement by a US NGO, and by identifying gaps in the evidence submitted by Ethiopia to the EECC in its Statements of Claim submitted to the OAU in June 1998 and in its submissions and Counter-memorial to the EECC.
13 Triulzi, “Violence and the acknowledgement,” ¶5.
14 Ibid., ¶7.
15 Campbell, Nationalism, Law and Statelessness, Chap. 1 and 2.
16 For background to the war, see Negash and Tronvoll, Brothers at War, and Jacquin-Berdal and Plaut, Unfinished Business.
17 Clapham, “Indigenous Statehood and International Law,” 168.
18 EECC, “Eritrea’s Claims,” ¶32.
19 For information about the PCA see: van Haersoltevan van Hof, “The Revitalization.”
20 See Permanent Commission of Arbitration. Arbitration rules. The Hague. https://pca-cpa.org/en/services/arbitration-services/pca-arbitration-rules-2012/ (accessed 17 August 2021).
21 The parties submit evidence without the rules of admissibility which prevail in other jurisdictions. The arbitration rules do not define the ‘burden of proof’ which applies in its hearings; indeed that burden may vary but in general ‘it is close to the balance of probabilities’ (see von Mehren and Salomon, “Submitting Evidence”).
22 Contrast this with litigation which, while messy and confrontational, proceeds through an open hearing in which the parties are required to submit evidence, and which examines the issues at the heart of the dispute.
23 See Permanent Commission of Arbitration. Decisions. The Hague. http://www.pca-cpa.org/showpage.asp?pag_id=1151 (accessed 1 June 2018).
24 Paragraph 9 of Decision no. 1 indicates a clear disagreement between the parties regarding the date the war began.
25 EECC’s ‘Decision no. 8’, which reiterated Art. 5(8) of the Algiers Agreement, stated that each state would either file claims on behalf of individuals whose nationals they were (which Eritrean did on behalf of six named individuals) or that state claims would include claims for damages on behalf of individuals which, if upheld, would be compensated via relief or development programs and not by payment to individuals.
26 See Article 3(1) of the Algiers Agreement ‘Agreement’.
27 Murphy, Kidane and Snider, Litigating War (sec. iv). With respect to the absence of evidence contained in the EECC’s decisions, the authors on 112 state: ‘As is the case for all the Commission’s awards, it is difficult to see within the limits of the jus ad bellum partial award (and the associated damages award) exactly what evidence was presented by Ethiopia in support of its claim and what evidence was marshalled by Eritrea in its defence … there is no detailed discussion of the quantity and quality of the vast amount of information that was submitted to the Commission … ’ [author’s emphasis].
28 Greppi, “The 2000 Algiers Agreement.”
29 For instance, Ethiopia’s expelled Eritreans after the peace treaty was signed (cf. Kidane, “Civil Liability for Violations” and Gray, “The Eritrea-Ethiopia Claims,” 705).
30 Kidane, “Civil Liability for Violations” and Murphy, “The Experience of the Eritrea-Ethiopia.”
31 EECC, “Eritrea’s Claims,” ¶90.
32 Stahn, “Jus ad bellum.”
33 Murphy, Kidane and Snider, Litigating War, 104–5. The author’s discuss this and the options which this decision precluded, namely an agreement not to submit a jus ad bellum claim.
34 Eritrea, Counter-Memorials, ¶1.5, 1.76. Specifically, losses in its tourism industry, a national economic downturn in the economy, reduced foreign aid, expenses in road projects interrupted by the war, lost tax revenue, reduced foreign and domestic investment and costs suffered by Ethiopian Airlines could not be claimed.
35 The evidence cited in this paper come from Eritrea, Counter-Memorials, ¶1.30–1.70.
36 Eritrea argued that Ethiopia’s claims had no basis in international humanitarian law, including the Geneva Convention, and that Ethiopia had offered no evidence that Eritrea violated bi-lateral agreements.
37 See EECC, “Jus Ad Bellum,” 9, 12.
38 Art. 3 of the Algiers Agreement assigns the task of assessing the origins of the conflict to a third, undefined, institution.
39 EECC, “Jus Ad Bellum,” ¶16.
40 See Murphy, Kidane and Snider’s (Litigating War, 119-f) discussion of Eritrea’s ‘unsuccessful defences’ which hinged on its jus ad bellum claim.
41 Eritrea, Counter-Memorial of the State 2004a, ¶10.
42 Eritrea, Memorial of the State 2002, ¶2.03.
43 Ibid., ¶2.25.
44 Ibid., ¶2.27-f.
45 Eritrea, Memorial of the State 2007, ¶3.10.
46 Eritrea, Memorial of the State 2002, ¶2.79.
47 EECC, “Eritrea’s Claims,” ¶11.
48 Eritrea, Memorial of the State 2002, ¶2.100-f. This allegation is fully in line with Human Rights Watch, The Horn of Africa War, 18–28 – a report of the arrest and expulsion of Ethiopian-born ethnic Eritreans as ‘enemy aliens’.
49 EECC, “Eritrea’s Claims,” ¶39-f.
50 Ibid., ¶51.
51 Ethiopian Nationality Law of 1930. https://www.refworld.org/docid/3ae6b52ac.html (accessed 22 June 2021).
52 Ewing, Consolidated Laws of Ethiopia.
53 Sec. 6 of the Act states ‘A single nationality shall prevail throughout the Federation: (a) all inhabitants of Eritrea, except persons possessing foreign nationality, shall be nationals of Ethiopia; (b) All inhabitants of Eritrea and having at least one indigenous parent or grandparent shall also be nationals of Ethiopia … ’ Sec. 7 states: ‘The Federal Government, as well as Eritrea, shall ensure to residents in Eritrea, without distinction of nationality, race, sex, language or religion the enjoyment of human rights and fundamental liberties … ’. Even though Ethiopia formally abrogated the federal status of Eritrea in 1962 when it formally incorporated it into the Empire, subsequent Acts did not remove or alter the right of Eritreans to Ethiopian citizenship. This evidence would have reinforced Eritrea’s claim that Art. 33 of the Ethiopian Constitution – barring Ethiopia from depriving Ethiopian citizens of their citizenship ‘without consent’ – applied to Eritrean nationals of Ethiopia. The Act was apparently “amended and substantially repealed by the Revised Constitution and by the Termination of the Federal Status of Eritrea Order, 22/3 (1962)’ (37).
54 Eritrea, Memorial of the State 2007, ¶1.9-f. Ethiopia alleged that the database was ‘riddled with errors and duplications’ yet it only provided ‘a handful’ of examples.
55 Eritrea checked its data against reports initially issued by the ICRC and against Ethiopia’s Counter Memorial ‘accusations of inaccuracy and inconsistency’ and the witness statements provided by Ethiopia (Eritrea, Counter-Memorial of the State, 2.3.60–84; Eritrea, Memorial of the State 2007, ¶117-f).
56 Eritrea, Memorial of the State 2007, ¶1.10-f.
57 Eritrea, Counter-Memorial of the State 2004a, ¶1.28-f.
58 Eritrea, Memorial of the State 2007, ¶2.1, 2.4-ff.
59 Eritrea, State of Eritrea Case.
60 EECC, “Eritrea’s Claims,” ¶123.
61 EECC, “Eritrea’s Claims,” ¶62. The evidence cited in the following five paragraphs is taken from the same decision, specifically ¶70–80.
62 Human Rights Watch, The Horn of Africa War.
63 See EECC, “Ethiopia’s Claim 5,” ¶129-f and Eritrea, Memorial of the State 2007, ¶151-f.
64 EECC, “Eritrea’s Claims,” ¶93–7.
65 EECC, “Eritrea’s Claims,” ¶123.
66 Eritrea, Memorial of the State 2002, ¶2.168–74.
67 Ibid., ¶2.185-f.
68 Eritrea, Memorial of the State 2007, ¶2.120–2.122.
69 EECC, “Eritrea’s Claims,” ¶145-f; “Final Award. Eritrea’s Damages Claims,” ¶326–330. Eritreans whose assets were seized during the war were unable to gain access to their property and to money in ‘blocked accounts’.
70 EECC, Counter-Memorial of the State 2004a, 37-f.
71 EECC, “Final Award. Eritrea’s Damages,” ¶95–6.
72 The EECCs approach to the evidence is reflected in its assessment of liability, specifically its assessment of the ‘dominant and effective nationality’ of Eritrean nationals and its assessment of conflicting approaches to claiming damages, cf. EECC, “Final Award. Eritrea’s Damages” and “Final Award. Ethiopia’s Damages.”
73 Gray, “The Eritrea-Ethiopia Claims,” 699–721.
74 College, “The Iran-United States Claims.”
75 Nader, The Life of the Law, 149, 164. Even so, counsel for both parties accepted the risks by participating in the process.
76 Art. 24 of the EECC’s procedure states that ‘each party will have the burden of proving the facts relied upon to support its claim or defence’.
77 This paragraph is based on the following sources: Abraham, “Lines Upon Maps”; Carter Center, Approaches to Solving Territorial Conflicts; Kwiatkowska, “The Eritrea-Yemen Arbitration”; Mesfin Wolde Mariam, “The Background”; and Reisman, “Eritrea-Yemen Arbitration.” While there is evidence that arbitration works in some situations and that states have arrived at peaceful compromises regarding their border (Miles, “Development, not Division”), arbitration is not a universal panacea.
78 See the website of UNMEE mission. https://unmee.unmissions.org/.
79 Styan, “Twisting Ethio-Eritrean Economic Ties.”
80 Ylonen, “From Demonisation to Rapprochement.”
81 See Crisis Group, Ethiopia’s Tigray War: A Deadly, Dangerous Stalemate, Briefing 171, 2 April 2021, https://www.crisisgroup.org/africa/horn-africa/ethiopia/b171-ethiopias-tigray-war-deadly-dangerous-stalemate.
82 See, UNOCHA, Ethiopia – Northern Ethiopia Humanitarian Update Situation Report, 23 Sept 2021, https://reliefweb.int/report/ethiopia/ethiopia-northern-ethiopia-humanitarian-update-situation-report-23-sept-2021.
83 Annys et al., “Tigray: Atlas,” 20 – see Map 10.