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(Foreign Policy Journal) Justice Deferred: The 15th Anniversary of the Eritrea-Ethiopia Boundary Commission Verdict

Posted by: Semere Asmelash

Date: Friday, 14 April 2017

Justice Deferred: The 15th Anniversary of the Eritrea-Ethiopia Boundary Commission Verdict

By Fikrejesus Amahazion | Apr 14, 2017

Led by the US, the world community has been complicit in Ethiopia's violations of international law against Eritrea.

This week represents fifteen years since the Eritrea Ethiopia Boundary Commission (EEBC) made its ruling to solve the border conflict between the neighbouring countries. However, its decisions, presented on April 13, 2002, remain unimplemented, constituting a flagrant violation of fundamental international law, calling into question the moral authority of several international organizations, serving as a serious impediment to peace and development in the Horn of Africa, and leading to the destabilization of the region through contributing to unnecessary rivalry, tension, conflict, and insecurity.

Between 1998 and 2000, Eritrea and Ethiopia waged a bitter war. The conflict, partly based on a dispute over the precise location of extensive parts of the boundary between Eritrea and Ethiopia, led to the death of tens of thousands on both sides (it is estimated that Eritrea lost about 19,000 soldiers, while Ethiopia’s losses are estimated at between 70,000-130,000 soldiers), large-scale displacement of civilians, and was highly costly for both countries. In June 2000, the two countries signed the Agreement on Cessation of Hostilities in Algiers, and then in December 2000, President Isaias Afwerki of Eritrea and Prime Minister Meles Zenawi of Ethiopia signed the Algiers Peace Agreement.
Inter-alia, the agreement called for both parties to permanently terminate hostilities and refrain from the threat or use of force, established an independent and impartial Boundary Commission to delimit and demarcate borders based on pertinent colonial treaties (from 1900, 1902, and 1908) and applicable international law, sought to determine the conflict’s origins, and established a Claims Commission to assess damages and losses caused by the conflict.

Subsequently, in 2001, the EEBC was formally established in accordance with the terms and conditions of the Algiers Peace Agreement. The EEBC consisted of five members; Ethiopia and Eritrea appointed two commissioners each, while the fifth commissioner, serving as the president of the Commission, was selected by the party-appointed commissioners. After a lengthy investigation and litigation process, the Commission rendered its decisions on April 13, 2002, at the Permanent Court of Arbitration at The Hague, with the entire process guaranteed by the United Nations (UN) and the OAU/AU and witnessed by the US, the European Union (EU), Algeria, and Nigeria. Importantly, the United Nations Security Council (UNSC) was charged with guaranteeing the EEBC ruling and enforcing implementation without preconditions.

The EEBC ruling presented both countries with gains and losses; however, one of the EEBC’s most significant decisions saw the flashpoint of the 1998-2000 war, the rural border town of Badme, awarded to Eritrea. While Eritrea accepted the EEBC’s decisions in their entirety and has generally sought to uphold the integrity of the Algiers Peace Agreement, and although Article 4.15 of the agreement clearly stipulates that both parties “agree that the delimitation and demarcation determinations of the Commission shall be final and binding,” Ethiopia has completely failed to abide by its international legal obligations and responsibilities. Instead, it has persistently sought to obstruct or reverse the EEBC’s decisions, continued to militarily occupy large swathes of Eritrean territory (including Badme), and sustained a policy of unremitting aggression and hostility toward Eritrea.

Somewhat ironically, shortly after the verdict, Ethiopia actually appeared to accept the EEBC ruling; both the Ethiopian Foreign Minister and the country’s parliament made statements proclaiming Ethiopia’s “satisfaction” with and wholehearted “acceptance” of the decision, and the Ethiopian government also expressed gratitude to the Commission for delivering a “just” verdict, even calling on the international community to “compel Eritrea to agree to a speedy demarcation.” However, this line of approach was quickly and dramatically reversed. In 2003, Ethiopia denounced the ruling as “illegal, unjust and irresponsible,” while castigating the Boundary Commission and seeking to reopen the EEBC’s decisions through an “alternative mechanism.” Subsequently, in 2004, Ethiopia vacillated again, this time shifting its position to claim that it accepted the ruling “in principle,” but within the context of various and numerous reservations, qualifications, and preconditions prior to implementation. Importantly, Ethiopia also began to establish illegal settlements within sovereign Eritrean territories, and in 2006 the Ethiopian Foreign Minister, Seyoum Mesfin, sent a highly-publicized letter to the President of the EEBC, Sir Elihu Lauterpacht, again criticizing the EEBC and even assigning blame to the Commission for Ethiopia’s own failure to meet its international obligations under the agreement.
 
Beyond its outright military occupation of sovereign Eritrean territories and rejection and obstruction of the EEBC ruling, Ethiopia has also retained a policy of unrelenting aggression toward Eritrea.

Less than a year ago, on June 12, 2016, Ethiopia launched a large, unprovoked attack against Eritrea on the Tsorona Central Front, leading to the deaths of hundreds of Ethiopians and eighteen Eritreans. Notably, the region, located along the tense, militarized border between the two countries, was the scene of some of the fiercest fighting during the 1998-2000 war. It is important to note that such aggression, described by the Nuremberg Tribunal as “the supreme international crime,” is a grave breach of fundamental international law and the UN Charter, as well as a clear, direct violation of Article 1.1 of the Algiers Peace Agreement. Rather than an isolated incident, however, the mid-2016 attack was but the latest in a long series of deadly provocations by Ethiopia since the end of the destructive 1998-2000 war. For example, on March 16, 2012, the Ethiopian government crossed into Eritrean territory and attacked several Eritrean military installations.

Ethiopia not only occupies sovereign Eritrean territory and engages in frequent illegal incursions into and attacks against Eritrea, it also regularly makes calls for the overthrow of the Eritrean government and, through belligerent, threatening statements via government-owned media outlets, boldly proclaims its intentions to carry out “military action to oust the regime in Eritrea,”——again, violating the UN Charter (e.g. Article 2.4), international law, and the Algiers Peace Agreement. For instance, in 2014, Ethiopia’s Prime Minister, Hailemariam Desalegn, announced that the “no war, no peace situation with Eritrea is over. Ethiopia from now on is ready to take military action against Eritrea,” while in 2015 and early 2016, he claimed Ethiopia was ready to take “proportionate military action against Eritrea.” As well, shortly after the disastrous June 2016 attack, high-level Ethiopian officials (including the Prime Minister, Minister of Defence, and Minister of Government Communication) proudly boasted in parliament about Ethiopia’s aggressive actions against Eritrea (including statements made on June 14, June 28, and July 5, 2016).

A point of particular concern that arises in exploring the ongoing stalemate is that although the entire EEBC process was guaranteed by the UN, UNSC, and OAU/AU, and witnessed by the US, EU, Algeria, and Nigeria, the international community has effectively ignored Ethiopia’s complete failure to abide by its international legal obligations and responsibilities for demarcating the border. Instead of condemning Ethiopia’s illegal military occupation and repeated aggressive actions or calling for the immediate, unconditional implementation of the EEBC ruling, the international community, principally led by the US, have turned a blind eye, abdicated their responsibility, and been acquiescent to Ethiopia’s persistent violations and hostile behavior.

Unwavering support for and appeasement of Ethiopia, despite its utter contempt for international treaties or laws, are part of a policy approach based upon the misguided belief, dating back to the immediate post-World War II period but rearticulated more recently in terms of regional “anchor states” designations, that US and Western geostrategic interests and foreign policy aims can be better protected and served by Ethiopia.

During the immediate post-World War II period, UN Resolution 390 (V) of December 2, 1950, stifled Eritrea’s hopes for decolonization and independence, forcibly federating Eritrea, a former Italian colony, with Ethiopia because Ethiopia was seen as a key partner “in the fight against the Soviet-led spread of Communism in Africa,” and as so pointedly expressed by John Foster Dulles, the then US Secretary of State, “the strategic interests of the United States in the Red Sea Basin and considerations of security and world peace make it necessary that the country [Eritrea] be linked with our ally, Ethiopia.” Shortly thereafter, on November 14, 1952, in a move it would essentially repeat a half-century later, Ethiopia violated the principles of the international resolution, declaring the Eritrean Constitution void, ending the federal status of Eritrea, dissolving the Eritrean parliament, and incorporating Eritrea into Ethiopia as a province. These developments would lead to Eritrea’s 30-year armed struggle for independence, which ultimately culminated with an Eritrean victory in 1991.

Since World War II, the US, with the West in tow, has maintained a close alliance with a series of autocratic Ethiopian leaders, providing them with considerable economic, diplomatic, and military support and permitting them to act with impunity. Annually, Ethiopia receives hundreds of millions of dollars in aid from a variety of bilateral and multilateral sources—for 2016/17 alone, Ethiopia was to receive $918 million in assistance, just from the US—while its grave transgressions of international law and human rights standards (both at home and abroad) are overlooked.

In regard to the 1998-2000 conflict and subsequent EEBC ruling, there was heavy-handed involvement by the US during both the conflict and throughout the peace negotiation process on the side of Ethiopia. In 1998, Susan Rice, then serving under former President Bill Clinton as Assistant Secretary of State for African Affairs, completely failed to adequately or impartially mediate a peace plan between warring Ethiopia and Eritrea. Her total “misreading of the situation” elicited the fury of then US Secretary of State Madeleine Albright, who quickly summoned Rice back to Washington after negotiations collapsed. Subsequently, after the EEBC ruling, a number of Wikileaks cables reveal how successive US administrations have sought to keep the “[Eritrean-Ethiopian] border dispute frozen,” if not reverse or “reopen the 2002 EEBC decision,” since Ethiopia is an “indispensable partner” in the region.

As well, Ambassador John Bolton, former US Permanent Representative to the UN, in his book Surrender Is Not an Option: Defending America at the United Nations readily acknowledges that although “Ethiopia had agreed on a mechanism to resolve the border dispute in 2000”, but “was welching on its deal in flat violation of its commitments.” Notably, Bolton also strongly questions the efforts of the former US Assistant Secretary of State for African Affairs, Jendayi Frazer, to overturn the border ruling in Ethiopia’s favor, noting, “[f]or reasons I never understood, however, Frazer reversed course, and asked in early February [2006] to reopen the 2002 EEBC decision, which she had concluded was wrong, and award a major piece of disputed territory to Ethiopia. I was at a loss how to explain that to the Security Council, so I didn’t” (p. 347).

Furthermore, a June 2006 memo by Azouz Ennifar, the former Acting Special Representative of the United Nations Secretary General (UNSG) to Eritrea and Ethiopia, reveals how Frazer “developed parallel tracks to deal with the [EEBC ruling and implementation],” essentially condoning and supporting Ethiopia’s rejection of the verdict and violation of international law.

In addition to unreservedly shielding Ethiopia’s noncompliance and intransigence, the misguided approach of the US has also, in the words of the former US Assistant Secretary of State for African Affairs, extended to attempting to “pin down and punish Eritrea” for refusing to give up the legal course in terms of the EEBC. This strategy has involved attempts to isolate Eritrea through scuppering foreign agreements and economic deals, as well as the utilization of unjustified international sanctions.

According to a leaked US embassy cable in Addis Ababa sent by Chargé d’Affaires Vicki Huddleston (dated November 1, 2005), the strategy of the US-backed Ethiopian proxy was to, “isolate Eritrea and wait for it to implode economically.” Moreover, a cable sent by Chargé d’Affaires Roger Meece (November 30, 2009) exposes how the “USG [US Government] has worked to undercut support for Eritrea,” while another cable (November 2, 2009) reveals that the German government’s rescinding of a credit guarantee to banks for a commercial loan of $US146 million to Eritrea’s Bisha mining project was the result of “caving in to … American pressure.”

Additionally, on December 23, 2009, the UNSC adopted Resolution 1907 imposing a sanctions regime against Eritrea, which was then expanded on December 5, 2011, via UNSC Resolution 2023. Importantly, not only is it increasingly acknowledged that the original imposition of sanctions was biased and lacking in basis—a series of Wikileaks cables reveal how the sanctions were actively planned and pushed for through close cooperation and shadowy backroom dealings by the US and Ethiopia—their continuance has widely become recognized as illegitimate, counterproductive, unjustified, and not based upon a genuine concern for international peace or security. Over several years, a long series of UN Somalia Eritrea Monitoring Group (UN SEMG) reports have consistently concluded that they have found “no evidence of Eritrea’s support for Al-Shabaab,” while in 2010 Eritrea and Djibouti signed a comprehensive agreement entrusting Qatar to play a mediating role, quickly followed by a process of implementation. It is quite telling that in 2014, while 14 Security Council members wanted to lift the sanctions, the US vetoed the move.

Essentially, the sanctions constitute an extension of the unwarranted hostile US policy toward Eritrea for its principled adherence to the EEBC’s border ruling and for Eritrea’s opposition to misguided US policies in the Horn of Africa. As so aptly put by Ambassador Herman Cohen, former US Assistant Secretary of State for African Affairs, the sanctions against are a “gross miscarriage of justice.”

It is tremendously difficult to overlook the troubling paradox that Eritrea remains burdened by sanctions—even, as it must be underscored, in the absence of any supportive evidence for their pretext and despite its acceptance of the EEBC’s ruling and its regular calls for unconditional implementation—while the UN and the international community continue to ignore, if not enable and support, Ethiopia’s complete failure to abide by its international legal obligations and responsibilities for demarcating the border, and its ongoing military occupation and state of war and aggression toward Eritrea. Moreover, in a twisted case of illogic, Eritrea is further punished since the sanctions (particularly the arms embargo and severe limitations on defensive materials) effectively mean it is restricted in defending itself—a fundamental international right enshrined under the UN Charter—against Ethiopia’s military occupation and unrelenting aggression or terror-related threats which abound throughout the region.

Ultimately, the international community has utterly failed the people of Eritrea, Ethiopia, and the broader region. To be clear, there is no longer a contested or disputed border between Eritrea and Ethiopia; rather, there is only an ongoing military occupation of sovereign Eritrean territories, including Badme, by Ethiopia and an unrelenting state of hostility and aggression by the latter toward the former. Not only is the international community’s failure to act morally vacuous, with the international community, led by the US, effectively complicit in the ongoing violation of fundamental international law by Ethiopia, the continued lack of implementation of the EEBC has served to impede regional development, reduce prospects for peace or security, and led to the destabilization of the entire Horn of Africa region through contributing to unnecessary rivalry and tension.

Moving forward, it is quite apparent and highly imperative that the international community shoulder its legal responsibility and obligations by genuinely censuring Ethiopia’s illegal military occupation and repeated aggressive actions towards Eritrea, and calling for the immediate, unconditional implementation of the “final and binding” EEBC decisions. Importantly, such steps will both reflect and fulfill commitments to key principles of international law, represent positive gestures that can help encourage fruitful and effective cooperation, remove unnecessary, harmful distractions and support the addressing of internal issues and challenges within both countries, support the two countries’ socio-economic growth and development (prior to the two-year conflict, Ethiopia and Eritrea enjoyed strong economic relations), and ultimately potentially prove to be useful measures toward promoting lasting, sustainable peace, security, and stability.
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About the Author

Fikrejesus Amahazion

Born in Asmara, Eritrea, Fikrejesus Amahazion is currently a PhD at Emory University (Atlanta, GA). As well, he is working towards completion of Emory’s Graduate Certificate in Human Rights. His areas of concentration include Human Rights, Trafficking, Development, and Comparative Political Economy.


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