UNSG Kofi Annan's Appointment of Axoworthy
is Illegal and an Obstruction of Justice
By: Sophia Tesfamariam
November 22, 2004
Before I proceed with my article, I would like to first assure all readers
that I have nothing but respect for Mr. Kofi Annan and am not arguing my case
because I am an Eritrean-American, but rather because I do not believe that
anybody is above the law or that anybody can violate the law. I also think the
speedy demarcation of the Eritrea Ethiopia border is the best thing that can
happen to the people of Eritrea and Ethiopia.
The Algiers Agreement which was signed in 2000 in Algeria by H.E. President Isaias Afwerki for Eritrea and by Prime Minister Meles Zenawi for Ethiopia and witnessed and guaranteed by Secretary General Kofi Annan representing the United Nations, President Abdelaziz Bouteflika of the Democratic Republic of Algeria, President Obasanjo of Nigeria, Secretary of State Madeleine Albright representing the United States, Secretary General, Salim Ahmed Salim representing the OAU, and Senator Renato Serri representing the European Union, clearly states that the Border Commission alone has the sole authority and mandate to delineate and demarcate the Eritrea Ethiopia border. Article 4.2 of the Algiers 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 border 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"
While it is clearly stated in the above mentioned Agreement that the delimitation and demarcation of the Eritrea Ethiopia border is the sole mandate and responsibility of the EEBC, insulting and questioning the competency and capacity of the internationally recognized and respected members of the Commission as a body that is "in terminal crisis", the leader of the Tigrayan minority regime in Ethiopia Prime Minister Meles Zenawi, wrote a letter on 19 September 2003 to Secretary General Kofi Annan requesting an "alternative mechanism".
Here is an excerpt from the arrogant and defiant letter of 19 September 2003 from Meles Zenawi to UN Secretary General Kofi Annan:
"Despite the veneer of normalcy in the work of the Boundary Commission, I am afraid the work of the Commission is in terminal crisis…The key to the crisis of the work of the Commission is its totally illegal, unjust, and irresponsible decision on Badme…I believe it is crucial that the Security Council set up an alternative mechanism to demarcate the contested parts of the boundary…"
In response to Meles Zenawi's insulting and defiant letter, Sir Elihu Lauterpacht, the President of the Eritrea-Ethiopia Boundary Commission wrote to Secretary-General Kofi Annan on 7 October 2003 stating clearly that the statements made by Meles Zenawi were "misconceived and misleading". Sir Elihu eloquently presented the Border Commission's position by stating:
• "…there is no "crisis", terminal or otherwise, which cannot be cured by Ethiopia's compliance with its obligations under the Algiers Agreement, in particular its obligations to treat the Commission's delimitation determination as "final and binding" (article 4.15) and "to cooperate with the Commission, its experts and other staff in all respects during the process of ... demarcation" (article 4.14)…"
• "The Commission must further observe that its mandate, as agreed in article 4.2of the Algiers Agreement, was to base its decision "on pertinent colonial treaties (1900, 1902 and 1908) and applicable international law". The parties did not give the Commission the task of deciding which State administered Badme in recent years: and at the critical time when the relevant treaty of 1902 was concluded, Badme and certain other villages and settlements which now exist had not then come into existence…"
• "…alternative mechanism would involve a departure from, and thus and amendment to, the terms of article 4.2 of the Algiers Agreement, which gives the Commission the mandate to demarcate the boundary. Moreover, Ethiopia's reference to "the contested boundary" can only be understood as a reference to those parts of the boundary to which it alone and unilaterally takes exception: no part of the boundary is "contested" by both parties…"
• "…Only by thus enabling demarcation to proceed unhindered can the mandate given to the Commission by the parties in the Algiers Agreement, namely to expeditiously demarcate the boundary, be fulfilled…"
The Security Council has also rejected Meles Zenawi's defiant and abusive letter. In its letter dated 3 October 2003 it responded by stating clearly:
"The Security Council is clear that the framework for establishing a lasting peace between Ethiopia and Eritrea was agreed by both parties in Algiers in 2000. Only the full implementation of the Algiers Agreements will lead to sustainable peace…The members of the Security Council, therefore, call upon the Government of Ethiopia to provide its full and prompt cooperation to the Boundary Commission and its field offices in order that demarcation can proceed in all sectors as directed by the Boundary Commission…"
That should have put an end to Meles Zenawi's defiance of international law, arrogant attitude and insulting letter that had requested to revisit, revise and amend the final and binding Eritrea Ethiopia Border Commission (EEBC) decision. His deceptive diplomatic games and maneuvers were transparent. In spite of the unequivocal rejection by EEBC and the Security Council of Meles' request for revisiting the legally decided delineation and demarcation of the Eritrea Ethiopia border and the setting up of an alternative mechanism, wittingly or unwittingly, succumbing to Meles' transparent, defiant and threatening request, Mr. Kofi Annan appointed Lloyd Axworthy to serve as his Special Envoy to Eritrea and Ethiopia and to help "overcome the impasse" or Meles Zenawi's self-created "crisis"
The Secretary General does not have the legal right or mandate to create an alternative mechanism. His mandate and obligation under the Algiers Agreement that he had signed witnessed and guaranteed is to put an end to Ethiopia's obstructionist behavior. He should have told the regime in Ethiopia that it is the EEBC that has the sole and full mandate to facilitate and implement the 13 April 2002 decision and to demarcate the Eritrea Ethiopia border. The Algiers Agreement is crystal clear and there is no ambiguity on who does what. Neither the Secretary General nor the Security Council has the mandate to implement the demarcation decision. It is the sole responsibility of the EEBC.
The defiant Ethiopian regime should have been told by Kofi Annan, in clear terms, that the final and binding decision of the EEBC cannot under any pretext, be it the "displacement of people", or "splitting of communities", or "unjust ruling" etc. etc. be amended or revised. He should have also told Meles to stop obstructing the expeditious demarcation of the border and that he couldn’t reject an agreement Meles himself consciously and willingly signed.
But for reasons which are not clear to any rational and law abiding person, Mr. Kofi Annan who guaranteed the Algiers Agreement by his own signature, violating the letter and spirit of the Agreement, abusing his "good offices" and power, stepping on the toes of the EEBC, accommodated Meles' demand and threat by appointing Lloyd Axworthy as his Special Envoy to Eritrea and Ethiopia.
Indirectly exposing Mr. Kofi Annan's intention to abuse his power, undermine an already legally resolved issue, and compromise the agreed demarcation directives, orders, and procedures, on 2 January 2004 in an interview with IRIN Lloyd Axworthy said:
"The secretary-general [Kofi Annan] spoke to me about it to determine whether I would be prepared to take it on, and I said I would. He then had to go through the appropriate channels to get the two parties, the governments, to agree, as well to sound out the other constituencies inside the UN system, which he has been doing"
Mr. Axworthy did not limit himself in exposing the intention of Kofi Annan. In another interview with IRIN on January 5, 2004, he bluntly exposed the true mission of his assignment by saying:
"… The boundary commission's decision needs to be developed…I think there is a different kind of process that may be helpful…"
Smelling Kofi Annan's fishy and illegal agenda, the President of Eritrea wrote several letters and sent his special envoy to Kofi Annan requesting him not to intervene with the work of the Eritrea Ethiopia Border Commission. Because that did not stop Mr. Kofi Annan from pursuing his illegal agenda, the Permanent Representative of Eritrea to the United Nations was compelled to circulate three additional letters that were sent from the President of Eritrea to Mr. Kofi Annan. In his 13 February 2004 letter addressed to the President of the Security Council, the H.E. Ambassador Ahmed Tahir Baduri wrote the following:
"Upon instructions from my Government, I have the honour to attach three letters dated 24 December 2003, 21 January 2004 and 4 February 2004, respectively, from H.E. Mr. Isaias Afwerki, President of the State of Eritrea, to the Secretary- General, concerning peace process between my country and Ethiopia, for the information of members of the Security Council, United Nations Member States and the international community at large…"
These letters from the President clearly expressed Eritrea's position on the matter of the Special Envoy of the Secretary-General for Eritrea/Ethiopia. President Isaias Afwerki in all of his letters and messages to the Secretary General has in no uncertain terms made it clear that the introduction of Axworthy in the middle of the process was illegal and tantamount to the creation of an "alternative mechanism". He also underlined that it was an ill advised, unnecessary and illegal move that would derail the expeditious demarcation of the border thus endangering the peace and security of the region.
We also know that President Isaias had written two other letters dated 27 October 2003 and 13 November 2003, which also clearly express Eritrea's position on the issue of "dialogue and normalization of relations", as well as the issue of the Special Envoy. President Isaias wrote:
"…legally bound not to countenance any "mechanism" or "approach" that aims to substitute the Boundary Commission and the implementation of the decision of the Boundary Commission… we cannot be expected to short-change our sovereignty or accept the forceful occupation of our land for the sake of resuscitating the normal ties that exist between two neighboring countries. This is neither legally nor morally acceptable. I therefore urge you to use the authority of your office to ensure the full respect of international law and thereby create the conditions for a just and sustainable peace…"
In short, in spite of the Border Commission's repeated rejections of Ethiopia's requests to revisit, and amend the 13 April 2002 final and binding decision, the EEBC's crystal clear consistent statements that urged Ethiopia to allow it to fulfill its mandated demarcation activities without any obstruction, Eritrea's strong objections and reservations on the issue of the appointment of the Special Envoy and creating an "alternative mechanism", and the UN Security Councils unequivocal rejection of Meles Zenawi's defiant request for an "alternative mechanism", the Secretary General in violation of the Algiers Agreement and international law, without any legal basis, without providing any point of reference or clear mandate, and acting in ultra vires of his authority chose to appoint Lloyd Axworthy as his Special Envoy, thus creating a de facto "alternative mechanism". This is a blatant abuse of power and a misuse of his "good offices".
Even though the Secretary General has repeatedly stated that he was not creating an alternative mechanism, Mr. Axworthy believed otherwise. Implying the Border Commission's work was over, in an interview with IRIN on 5 January 2004 he said:
"The boundary commission [set up with the agreement of both countries to
resolve the border dispute] has done, in effect, its work in coming down with a decision and then moving towards demarcation, and I am not sure it still has the capacity to provide that kind of representation that the secretary-general would like to have…"
By the above statement it is clear to any intelligent person that Mr. Axworthy and Mr. Kofi Annan want the EEBC to move out of their way.
It is common today to hear Mr. Kofi Annan say that he has appointment Lloyd Axworthy as a Special Envoy "in order to facilitate the implementation of the Algiers Agreements, the decision of the Boundary Commission".
No matter who says what, and no matter how many justifications are floated, by any legal and diplomatic and political yardstick what Mr. Kofi Annan did on the speedy demarcation of the Eritrea Ethiopia border is illegal and obstruction of justice.
Mr. Kofi Annan has practically:
• Hijacked the sole mandate of the Border Commission for himself via Axworthy.
• Compromised the mandate and integrity of the Eritrea Ethiopia Border Commission (EEBC)
• Delayed by 2 years the demarcation of the border in accordance with the April 13, 2002 final and binding EEBC decision.
• Cost the international community billions of dollars to maintain UN Mission to Eritrea and Ethiopia (UNMEE), whose mandate requires it to stay until the last border pillar is in place.
• Sent the wrong signal to the war mongering Tigrayan expansionist regime in Ethiopia, encouraging its belligerence and intransigence and emboldened it to not only illegally occupy sovereign Eritrean territories, but to also settle Tigrayans on sovereign Eritrean territories in violation of Article 49 of the Geneva Conventions, forcing thousands of Eritreans to live in makeshift camps unable to go to their ancestral villages.
• Allowed Meles' lobbyists, anonymous spin journalists, experts etc. to mislead and confuse the public in general, and the Ethiopian people in particular with sugar coated jargons of "dialogue" or "peaceful resolutions", or "lasting peace".
• Undermined the letter and spirit of the Algiers Agreement, UN Security Council resolutions and the rule of law.
Mr. Kofi Annan clearly knows that final and binding arbitration is a legal matter that has to be enforced, while "normalization of diplomatic relations" is a bilateral matter that is handled by sovereign states without the need for third parties. The appointment of Axworthy is therefore, not only an illegal and wrong interference by Mr. Kofi Annan in the work and sole mandate of the Border Commission, but it has encouraged Ethiopia to further defy international law and reject the Algiers Agreement.
It is about time that the UN Secretary General rescinds his illegal appointment of Lloyd Axworthy and instead urges the UN Security Council to take appropriate punitive actions against the belligerent regime in Ethiopia in accordance with Article 14 of the Agreement on Cessation of Hostilities as well as Articles 41 and 42 of the UN Charter.
Article 14 of the Agreement on Cessation of Hostilities clearly 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? This guarantee shall be comprised of ''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 United Nations Charter by the UN Security Council;''
And Article 41 of the UN Charter states:
''The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations''
And Article 42 of the UN Charter states:
''Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.''
Mr. Kofi Annan must also urge Ethiopia to deploy its liaison officers, fulfill its financial obligations under the Algiers Agreement so that demarcation can proceed without any further delay, pre-conditions and obstructions, only then can the rule of law prevail over the law of the jungle and the people of Eritrea, Ethiopia and the Horn of Africa enjoy peace and stability by concentrating on their poverty eradication and reduction economic agendas.
The rule of law must prevail over the law of the jungle!