Excellency,

 

As Your Excellency will recall, Ethiopia declared war against Eritrea in 1998 using a place called “Badme” as a pretext. This act of hostility had no legal or moral justification. Furthermore, it constituted a gross strategic folly, seriously jeopardizing the friendly bilateral ties between Eritrea and Ethiopia. The war, which continued for two years from 1998 until 2000, inculcated unparalleled loss of life and destruction of property.

 

A Comprehensive Peace Agreement was subsequently signed in Algiers in December 2000 with the presence and guarantorship of the international community. The witnesses and co-signatories of the Algiers Agreement were President Bouteflika of the Democratic Republic of Algeria, UN Secretary General Kofi Annan, OAU Secretary General, Salim Ahmed Salim, US Secretary of State Madeliene Albright, and European Union Special Envoy, Renato Serri.

 

Fundamental tenets of the Algiers Agreements include:

 

1. Establishment of an arbitration commission. In this regard, Article 4.2. of the Agreement states: “The parties agree that a neutral Boundary Commission composed of five members shall be established with a mandate to delimit and demarcate the colonial treaty boundary based on pertinent colonial treaties (1900,1902, and 1908) and applicable international law. The Commission shall not have the power to make decisions ex aequo et bono.”

 

2.     The final and binding nature of the decision. In this regard, Article 4.15 states: “The parties agree that the delimitation and demarcation determinations of the Commission shall be final and binding. Each party shall respect the border so determined, as well as the territorial integrity and sovereignty of the other party.”

 

3. Additional obligations of the Parties: Article 4. 14 stipulates: “The parties agree to cooperate with the Commission, its experts and other staff in all respects during the process of delimitation and demarcation”.

 

4. Punitive measures that should be taken against the violating Party: Article 14 of the Cessation of Hostilities Agreement states: “… The OAU and the United Nations commit themselves to guarantee the respect for this commitment of the two Parties until the determination of the common border on the basis of pertinent colonial treaties and applicable international law, through delimitation/demarcation and, in case of controversy, through the appropriate mechanism of arbitration. This guarantee shall be comprised of: a) Measures to be taken by the international community should one or both of the Parties violate this commitment, including appropriate measures to be taken under Chapter VII of the Charter of the United Nations by the United Nations Security Council”.

 

After a long process of legal litigation by both parties that involved submission of memorials and counter-memorials as well as a Hearing in The Hague, the Boundary Commission announced its decision on 13 April 2002. The Commission further issued, in accordance with the mandate entrusted to it in the Algiers Agreements, detailed Demarcation Directions. Had Ethiopia honoured its treaty obligations, the entire boundary would have been fully demarcated by November 2003 last year to usher peace and stability in our region and to create a conducive climate for the wounds of war to be healed between the two brotherly peoples.

 

Excellency,

 

My Government has accepted in good faith the Boundary Commission decision. Not because it has won in the litigation. It is indeed Ethiopia, which has been awarded, by its own admission, sovereign Eritrean territories. But because we firmly believe that the only avenue for securing enduring peace is through respect of the rule of law and the integrity of the

 

arbitration decision. This is why my Government has, and continues to, cooperate fully and unreservedly with the Boundary Commission in all its delimitation decisions and demarcation instructions.

 

Ethiopia, on the other hand, has categorically rejected the decision of the Boundary Commission. In a letter to the UN Secretary General on 19 September last year, the Ethiopian Prime Minister declared that “the work of the Commission is in terminal crisis”. The Prime Minister dismissed the decision of the Boundary Commission as “totally illegal, unjust and irresponsible” and requested the Security Council to “set up an alternative mechanism to demarcate the contested parts of the boundary”.

 

Ethiopia’s position contravenes its treaty obligations and violates key tenets of the Algiers Agreements as outlined above. It is instructive to note that Ethiopia had accepted the Boundary Commission decision when it was announced on 13 April 2002. At the time, Ethiopia vehemently urged the international community to put all possible pressure on Eritrea to secure its compliance. But soon after, it changed its mind and began to place a litany of obstacles on the demarcation process, including through the establishment of new settlements in sovereign Eritrean territories, in contravention of the Algiers Peace Agreement.

 

Ethiopia is now maintaining that it accepts 85% of the decision while it wants “15%” of the decision altered! In the first place, the colonial treaties (1900, 1902 and 1908) on which the Boundary Commission’s delimitation decision is rooted, span the entire 1000 Km boundary; not a certain portion of it. This is indeed the same colonial boundary that existed on the ground for more than a century (during Italian colonialism, British Military Administration and Ethiopian annexation) as one integral boundary. Even when Ethiopia declared war in 1998, it was not because of “territorial claims”, however unjustified, over 15% of the Boundary; but because of a relatively tiny place called Badme. This is thus a misleading argument devoid of any legal or factual rationale and simply advanced to embellish Ethiopia’s violation of the Peace Agreement.

 

The humanitarian, security, and economic consequences of Ethiopia’s decision to flout the rule of law and induce a climate of tension and confrontation cannot be underestimated. In Eritrea, over 65,000 of internally displaced people continue to live in make-shift camps unable to return to their home villages and towns that remain occupied by Ethiopia in violation of the Boundary Commission decision. The precarious security situation can only deteriorate further with time. The economic and opportunity costs that uncertainty and spiralling tension will further inculcate are considerable indeed. The international community may also have to spend additional and substantial resources, that can best be utilised for other useful purposes, for the up-keep of UNMEE.

 

The legal ramifications of allowing Ethiopia to scuttle the peace process are also not negligible. In Africa, the sanctity of colonial boundaries will be put to test. More broadly, the inviolability of treaties and arbitration mechanisms will be compromised. The concepts of fairness and fair play will ring hollow if the standards of the international community are starkly different for big and small countries.

 

Excellency,

 

As we underlined at the time, any diplomatic effort, however well-intentioned, that attempts to shift legal jurisdiction of the case from the Boundary Commission to some other body will not only be stillborn, but as outlined above, it is also fraught with grave legal consequences. Recourse was made to legal arbitration, after a costly war, because it was not possible to resolve the dispute through normal diplomatic means and channels. The international community cannot now reverse the whole process, ask Eritrea to go back to square one, and embark on a “new mechanism” simply in order to appease the violating party.

 

The only solution forward is to expedite the demarcation of the boundary on the basis of the delimitation decision of the Boundary Commission, which is final and binding. This is the only way that the rule of law and the Algiers Agreements can be respected. In this spirit, I again appeal to Your

 

Excellency’s government to take all measures that may be necessary in accordance with the Charter of the United Nations to compel Ethiopia to abide by the Peace Agreements it has signed.

 

 

                                                                                    Sincerely

                                                                                    Isaias Afwerki

 

 

___________________________

H.E. Prof. Alpha Oumar Konare

African Union Commissioner