4.1. Jurisdiction, procedure, and institutional dimensions

Article 5 of the December 2000 agreement lays out broad principles that govern jurisdictional, procedural, and institutional issues. It defines the EECC's jurisdiction, provides the temporal scope for the submission of claims, determines the procedure for the appointment of commissioners, describes the applicable law on which the Commission will rely, and indicates the type of mass claims procedures the Commission may adopt. The agreement places the broad scope of the Commission's mandate not only in the context of the need to address breaches but also in the commitment of the parties to address the negative socio-economic impact of the war on the civilian populations. The Commission has also considered claims related to economic damage, violations of diplomatic immunity, and the illegal use of force. But its decisions mainly focused on the protection and treatment of persons (prisoners of war (POWs) and civilians) during the conflict.

The EECC is mandated to

Subject-matter jurisdiction is limited to all damage, loss, or injury that is (a) related to the conflict and (b) result from actions constituting violations of international humanitarian including the 1949 Geneva Conventions and other violations of international law.Footnote ⁴⁴ The Commission, in its early decisions, determined that for the purpose of its jurisdiction, it will consider the conflict to have started in May 1998 and concluded when the December 2000 agreement was signed.Footnote ⁴⁵

The Commission is empowered to consider claims presented by both parties on their own and on behalf of their nationals (natural or juridical).Footnote ⁴⁶ Owing to the parties’ dispute regarding the nationality of some of the victims, an unusual provision was included in the December 2000 agreement allowing the parties to summit claims on behalf of individuals of Eritrean or Ethiopian origin who may not be their nationals.Footnote ⁴⁷ This allowed parties to pursue claims on behalf of civilians who were living in disputed territories and those whose nationality was in dispute. It was particularly relevant to Eritrea, whose claims are related to deportees from Ethiopia who, it argued, were Ethiopian nationals. Although the Commission, in its Decision No. 2, outlined different categories of claims, including those to be presented by natural persons affected by unlawful expulsion and displacement, it was the parties which finally presented these claims.

The Rules of Procedure incorporate general provisions dealing with evidentiary issues. According to the rules, the party that relies on certain facts for its claims bears the burden of proving them.Footnote ⁴⁸ But there is no explicit provision for the degree of proof that the Commission should require in determining liability for violations.Footnote ⁴⁹ The Commission adopted a standard of ‘clear and convincing evidence’ for its findings on liability. But it has required a far less rigorous process of quantification of damages, often determining amount of damages on the basis of estimates. Once a party presents clear and convincing evidence of a prima facie violation of international law, the burden of proof shifts to the respondent to rebut the claim.Footnote ⁵⁰ Both parties supported the Commission's approach on the quantum of proof required for determination of liability. The requirement of clear and convincing evidence to support a pervasive and systematic violation, however, significantly influenced the extent of the Commission's findings on liability. The Commission instructed the parties to be particularly sensitive to the quality of evidence they presented to it, and as such instructed them to develop guidelines for their personnel mandated to collect information to give particular importance to evidence, and asked the parties to harmonize their respective tools.Footnote ⁵¹

Both parties submitted a limited number of witness declarations, expert statements, photographs, satellite images, video footage, press reports, and reports of international organizations and non-governmental organizations (NGOs) in all their claims. With respect to the nature and quality of evidence presented by the parties, the Commission had to deal with two pressing issues. First, to what extent can the Commission take into account reports by the International Committee of the Red Cross (ICRC)? This question was of particular significance regarding claims relating to the expulsion of civilians, when the ICRC often facilitated civilian movement across the international borders between the two countries. It was also an issue that was intensely debated during the consideration of the POW claims. The parties had expressed their willingness to allow the Commission to consider such reports, and the Commission undertook to consult with the ICRC on the matter. Citing the confidential nature of its reports and how important this is to the fulfilment of its mandate, ICRC declined the offer and the Commission accepted the latter's explanation. No official report of the ICRC was relied on by the Commission during its proceedings with respect to unlawful displacement and expulsion claims. The second important evidentiary question relates to reports by NGOs and other organizations. The Commission acknowledged the limitations of such reports, but decided to consider them to the extent that they provided credible information.Footnote ⁵² Both parties presented reports of international organizations and NGOs in their claims. NGO reports, for example, were instrumental in the finding of state liability in the only incident in which the Commission found one of the parties liable for the unlawful displacement of civilians.Footnote ⁵³

4.2. The nature and organization of the claims

The December 2000 agreement allows the parties to bring claims on their own behalf and on behalf of their nationals. Individuals or a group of individuals do not themselves have direct access to the Commission. It is a requirement that the claims relate to unlawful actions by the parties that occurred between the start of the war in May 1998 and the date on which the agreement was signed – 12 December 2000. The Commission, in its Decision No. 2, gave six categories for the claims, including claims for unlawful expulsion from the country of residence and claims for unlawful displacement from the place of residence.Footnote ⁵⁴ The Commission also adopted a mass claim procedure, according to which the parties would prepare their claim on the basis of a claim form prepared by the Commission. It also decided that the claims would be made for fixed amount compensation.Footnote ⁵⁵ Ultimately the forms were not used and the parties agreed to present all claims, including those by natural and juridical persons, as government-to-government claims.Footnote ⁵⁶ This was done to avoid a flood of individual claims being submitted to the Commission.Footnote ⁵⁷

Given that the parties had only one year in which to process the claims, taking advantage of the mass claims procedures envisaged proved to be extremely cumbersome. Decision No. 2's statement that the parties would prepare claim forms based on the format determined by the CommissionFootnote ⁵⁸ was also indicated in Article 30(3) of the Rules of Procedure. At the time, what was envisaged was a ‘basic form’ which would be identical for all claims. Another claim would accompany the basic form with additional specific information. The additional forms were considered in relation to claims by households, a fixed amount for wrongful expulsion and or displacement, and each claim for a fixed amount in claims categories 1–5, including individual claims for unlawful displacement.Footnote ⁵⁹

The parties by and large submitted claims covering similar legal and factual grounds. They processed the claims of all victims, including those who were victims of forced displacement. The litigants’ claims broadly covered injuries, damage, or losses incurred by nationals including those who were unlawfully displaced or expelled as a result of infraction of international law during a defined period of time. This has a direct impact on wrongs with regard to individuals who continued to face the consequences of war-related displacement and those who become displaced after this period, for example owing to the impact of explosives in their areas. Since intense direct military confrontations by the belligerents occurred in the central and western areas of the parties’ common border, the claimants’ central and western front claims incorporate significant reference to issues of displacement.

Only Eritrea presented separate claims covering issues of internal displacement. Eritrea's Claim 14 was brought on behalf of its nationals in the western border area, who, it argued, were denied by Ethiopia the right to return to some of the occupied areas including the Temporary Security Zone (TSZ) and its adjacent areas. Eritrea's Claim 21, on the other hand, sought relief for injuries and losses caused by direct Ethiopian action in areas covering more than 23 villages. Ethiopia has chosen to include its claim on internally displaced persons in its more broadly prepared claims. The parties’ claims revealed, as the Commission found out, a considerable degree of overlap – an issue which, according to the Commission, posed a significant question of admissibility, as claims addressed in other cases were duplicated.Footnote ⁶⁰ For example, attacks on IDP camps were mentioned both in Eritrea's Claim 21, dealing exclusively with internal displacement, and in its aerial bombardment claims. In this case, the Commission decided to treat the question of the aerial bombardment of IDP camps under Claim 26 than rather than Claim 21.Footnote ⁶¹ Eritrea's Claim 14 argued that Ethiopia forcibly displaced persons from the Eritrean territories which it occupied. Moreover, Eritrea's claims on behalf of those displaced from dispute areas, which later came under the mandate of the United Nations Mission in Ethiopia and Eritrea (UNMEE), were, as the Commission clearly identified, covered in both its Claim 21 and civilian claims. Eritrea's western and eastern front claims also covered claims on behalf of those displaced by the war. When determining Claims 14 and 21, the Commission dismissed those claims insofar as the issues were incorporated in its partial awards on western front and civilian claims.Footnote ⁶²

Moreover, even when Eritrea's other claims did not cover issues relating to internally displaced persons, they nonetheless were relevant to the protection of the displaced, as they related to issues such as property rights. For example, in Eritrea's western front claims, covering numerous towns, Eritrea claimed that the Ethiopian military had been engaged in looting and destroying the property of those who fled, destroying water supplies, and planting landmines. Eritrea's Claim 26 dealing with Ethiopia's aerial bombardment also covered issues such as the destruction of IDP camps by Ethiopian warplanes.

Ethiopia's claim on this infraction of international law was made part and parcel of its other claims. Claims 1 and 3 covered Ethiopia's claim for the physical abuse of its nationals, property loss through looting and deliberate destruction, indiscriminate aerial bombing, shelling and use of landmines, and the displacement of civilians. Eritrea's civilian claims included Claims 15, 16, 23, and 27–32. Ethiopian civilian claims were referred to in its Claim 5. According to Article 5 of the Algiers Agreement, both parties were obliged to present their claims to the Commission by a cut-off date of 12 December 2001. Ethiopia's Claim 5 dealt with losses, damage, and injuries incurred by its nationals living in Eritrea during 1998–2000, while Claims 1 and 2 covered losses, damage, and injury incurred by Ethiopian nationals directly affected by armed conflict. These Ethiopian claims and the corresponding Eritrean claims cover almost identical circumstances and turns of events.Footnote ⁶³

5.1. The contour of applicable law

The EECC rendered a series of partial awards on the merits of the parties’ claims. The first set of partial awards addressed the treatment of POWs, while the second set of awards covered issues relating to the conduct of military operations on the central front.Footnote ⁶⁴ The Commission released its home front awards on 17 December 2004; all the remaining awards, including on Ethiopia's jus ad bellum claims, were given on 19 December 2005. It published its damages award on 17 August 2009.

The constituting instrument of the Commission required it to determine liability for violations of international humanitarian law before it determined issues of compensation. This allowed the EECC substantial consideration of the law relevant to the determination of liability. Article 5 of the December 2000 agreement authorized the Commission to consider relevant rules of international law. It also stated that the Commission should not make decisions ex aequo et bono.Footnote ⁶⁵ The EECC's first challenge was to determine to what extent the four Geneva Conventions and the additional protocols would be applicable in the light of the fact that Eritrea was not a party to these treaties at the time the war broke out. In its maiden award on POWs, the Commission held that the law applicable to those claims prior to 14 August 2000, when Eritrea acceded to the four Geneva Conventions of 1949, was customary international humanitarian law − the lex specialis involving rules directly applicable during international armed conflict.Footnote ⁶⁶ It recognized this body of law as ‘the most significant legal component’ in the parties’ relationship.Footnote ⁶⁷ This holding was applicable to all claims that were brought before the Commission.Footnote ⁶⁸

The parties and the Commission agreed that the conflict was an international armed conflict. The Commission's consideration of numerous issues including the claims associated with unlawful displacement and expulsion is thus carried out mainly within the framework of international humanitarian law. But the Commission also looked at the relevance of international human rights instruments in some instances. It considered how these instruments might become important in governing the treatment by a government of its own nationals. This became particularly relevant as Eritrea agued that some of the expellees from Ethiopia were Ethiopian nationals of Eritrean extraction. Even though the parties’ memorials made reference to certain provisions of international human rights law, such as the International Covenant on Civil and Political Rights, and regional human rights instruments, such as the African Charter on Human and Peoples’ Rights,Footnote ⁶⁹ their written pleadings generally shied away from making extensive reference to this body of law. Even when reference was made by the parties to international human rights instruments, the Commission noted the limited application of human rights law, owing to the fact that some of the cited instruments were not applicable during the relevant times or were derogated from.Footnote ⁷⁰ But in many instances it did not have to decide on the applicability of provisions of human rights law in determining liability for the damage or loss arising from the 1998–2000 war.Footnote ⁷¹ For example, it considered the application of the Convention on the Rights of the Child regarding the protection of children during armed conflict.Footnote ⁷² It also made reference to Article 15 of the Universal Declaration of Human Rights. The Commission held that customary international law concerning the protection of human rights would generally be applicable, with particular reference to incidents involving persons not fully protected by international humanitarian law.Footnote ⁷³

The Commission also held that the four Geneva Conventions and core provisions of Protocol IFootnote ⁷⁴ have largely become expressions of binding customary international law. It noted that although some provision of Protocol I involved elements of ‘progressive development of the law’, most of its provisions are customary law.Footnote ⁷⁵ It relied extensively on Common Article 3 for elaborating relevant international standards. The Commission also held that The Hague Convention (IV) Respecting the Laws and Customs of War on Land of 1907 and its annexed Regulations (Hague Regulations) constitute customary international law.Footnote ⁷⁶ But there were instances when the parties disagreed whether certain rules became applicable by operation of conventional or customary law.Footnote ⁷⁷

The Commission's decisions significantly clarified the law of occupation under international humanitarian law. This was clearly important to the application of Article 49 of Geneva Convention IV, which deals with evacuation and transfer of civilians. The first challenge was presented by Eritrea, which, relying on the delimitation decision of the Eritrea-Ethiopia Boundary Commission that awarded some of the disputed territories to it, argued against Ethiopia's claims for damages with respect to violations including the forced displacement of civilians alleged to have occurred within the central front. It specifically stated that ‘because the Boundary Commission determined the territory to be Eritrean, it could not be subject to belligerent occupation by Eritrean forces’.Footnote ⁷⁸ However, the Commission, citing Article 4 of Protocol I,Footnote ⁷⁹ rejected Eritrea's argument holding that responsibility of states for violations for humanitarian law does not shift based on a dispute over the title of the particular boundary within which a violation has allegedly occurred.Footnote ⁸⁰ Another challenge to applying international humanitarian law on occupation emerged from the difficulty of determining the length of time belligerent forces have to be present in an area for that phenomenon to count as an occupation. For example, Ethiopia argued that the provisions of the Geneva Conventions with respect to occupation might not be applicable where its troops were present in an area for only a few days and were on their way to other locations.Footnote ⁸¹ The Commission agreed that the law of occupation would not be applicable if there was ongoing fighting and the attacking forces had not yet established themselves.Footnote ⁸² However, it held that in a situation where there was no ongoing fighting, international humanitarian law regarding occupation would be applicable even if the occupation was for only a few days.Footnote ⁸³

The decision of the Commission with respect to the status of treaties governing the use of landmines and other explosives was also significant. It held that international instruments such as the Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol II of 1980 as amended on 3 May 1996), and the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction were not in force between the parties.Footnote ⁸⁴ None of these treaties was considered by the Commission as constituting customary international law. Often state practice in areas covered by the instruments was ‘sporadic and varied’. Nevertheless, the Commission held that provisions of Protocol II dealing with the recording of explosives and the prohibition of discriminatory use are expressions of customary international law.Footnote ⁸⁵

The EECC determined that large sections of the four Geneva Conventions and Protocol I constitute customary law. It also held that whenever one of the parties challenges the status of a certain provision as customary international law, the burden of proof is on that particular party to prove such a claim. One commentator found this holding to depart from the decisions of other tribunals such as the International Court of Justice, which in a number of cases determined that when a state bases its arguments on the application of certain customary international law, it shall prove the existence of such custom.Footnote ⁸⁶ The same writer, who was a member of the Eritrean legal counsel team, held that some of the decisions of the Commission relating to the POW awards, which did not favour Eritrea, were made based on this unorthodox decision on burden of proof, and this might have undercut the authority of the Commission. This is a rather curious conclusion, given that generally there were few disagreements regarding the status of provisions of the four Geneva conventions and the Protocol, on which the parties and the Commission relied. The parties generally did not disagree on the status of applicable law regarding numerous issues, including unlawful displacement and expulsion.

The Commission relied on the aforementioned sources of law in determining the legality of treatment of civilians within the occupied territories in general and the legality of expulsion and displacement in particular. Citing provisions of Geneva Convention IV and Additional Protocol I, it held that even lawful expulsions should meet the minimum level of protection and treatment envisaged under these instruments. For example, Articles 36 and 75 of Geneva Convention IV and Additional Protocol I respectively require that expulsions of civilians by the belligerent parties, whether lawful or unlawful, should be conducted in a manner which protects their safety and ensures access to basic amenities such as hygiene, sanitation, and food. Both parties argued and the Commission accepted that the presence of ICRC was an important guarantor or indication that such minimum standard was met. The Commission relied on Article 75 of Additional Protocol I as ‘constituting a summary of human rights’ relevant not only to the treatment of the national of an enemy state, but also to one's own, and with the potential to fill gaps in international humanitarian law.Footnote ⁸⁷ It also held that the same provision is a part of customary international law. Other provisions which the commission clearly identified as expressions of elements of customary international humanitarian law include Articles 48, 51, 52, 57, and 58.

To a certain extent the Commission also looked at the jurisprudences of international tribunals and arbitration bodies. The jurisprudence of the Iran–United States Claims Tribunal in particular, as it related to forced expulsion of aliens as a result of indirect government action, was discussed.Footnote ⁸⁸

5.2. Unlawful expulsion of civilians (deportation)

Ethiopia's and Eritrea's claims alike included a request for relief in connection with the forced expulsion of their own nationals from the territory of the other.Footnote ⁸⁹ Their claims also covered damage, losses, and injuries suffered by their nationals who were forcibly displaced within their countries’ border areas. Thus the parties’ claims included both deportation and forced (internal) displacement resulting from the armed conflict. The Commission readily denied any claims on unlawful expulsion and displacement that it considered to fall outside its jurisdiction. For example, it ruled that a claim regarding the alleged illegal expulsion of 770 Eritreans in July 2001 fell outside its temporal jurisdiction. It also rejected Eritrea's claim with respect to persons allegedly denied return to the TSZ and the adjacent areas (Eritrea's Claim 14). Eritrea's claims on unlawful expulsion present a rather complex set of claims, including those related to damage, losses, and injuries suffered by what Eritrea attempted to portray as Ethiopia's nationals of Eritrean origin. Such complexity stems from Eritrea's argument that Ethiopia not only illegally expelled masses of Eritrean nationals, but also forced its own nationals of Eritrean extraction to leave their country, and even alleged that Ethiopia's action might amount to ‘ethnic cleansing’. The Commission, in its relevant awards, accepted the right of belligerents, under international law and international humanitarian law, to order nationals of an enemy state to leave its territory, but reiterated that the implementation of such authority should follow specifically defined procedures and could not be delegated to non-state actors. Noting the presence of multiple causes for damages and losses operating at different times, the Commission apportioned liability based on ‘best estimates’.Footnote ⁹⁰

5.3. The unlawful displacement of civilians

Earlier, in its Decision No. 2 regarding the organization of claims, the Commission had determined that one category of claims it would look into would be ‘claims of natural persons for unlawful displacement from their residence’. However, Decision No. 2 did not elaborate, nor has the Commission clarified, the ambit of what will be compensable displacement. Should a particular incident of unlawful displacement result from an action by one of the parties which is a violation of international law? Should it be ‘pervasive, systematic, and frequent’ to result in state responsibility? Or will all incidents of displacement associated with the war be considered unlawful since the Commission has ruled, in its decision on jus ad bellum, that Eritrea unlawfully used force to settle its dispute with Ethiopia?

The Commission had its first opportunity to clarify its position regarding state responsibility with respect to unlawful displacement in its partial award on Ethiopia's central front claim. It noted,

The flight of civilians and incidental destruction during armed conflicts does not bring international liability under international humanitarian law.Footnote ¹¹⁴ In its partial decision on Ethiopia's western and eastern front, it rejected Ethiopia's claim over civilian displacement, arguing that Ethiopia's evidence did not establish that infractions in this regard were well beyond what is permissible under existing international humanitarian law.Footnote ¹¹⁵ A similar position was reiterated in the Commission's award over Eritrea's western front claims, where it determined that the ‘indirect displacement’ of civilians, caused by fear, did not on its own constitute violation of international law as alleged by Eritrea.Footnote ¹¹⁶

Eritrea's aerial bombardment claims argued that Ethiopia undertook a series of aerial attacks which resulted in the unlawful destruction of civilian property and the death of civilians. It also alleged that these attacks included the targeting of IDP camps. Ethiopia, on the other hand, claimed that Eritrea had failed to locate these IDP camps and other civilian objects at a reasonable distance from military objectives, as required under Article 58 of Geneva Convention IV. The Commission held that the number of Ethiopian air strikes was limited, that some civilian losses would have been avoided if Eritrea had located civilian and military objectives further apart, and that Eritrea did not provide sufficient evidence to substantiate its claim that Ethiopia's measures were excessive and indiscriminate.Footnote ¹¹⁷

Eritrea's Claim 21 related to losses, damage, or injuries incurred by its nationals as a result of their displacement from their homes, due not only to the direct military actions of Ethiopia but also to ‘other conditions that made it impossible for them to remain’. Eritrea's claims for direct displacement covered 23 villages. The Commission did not find Eritrea's evidence to be convincing and clear in providing the Commission with relevant information to evaluate and assess these elements. It determined that Eritrea's evidence should have shed light regarding three sets of tests: whether the alleged expulsions took place in the course of fighting for control of a village, whether there were any military justifications for the actions that caused the displacement, or whether the declarants fled the area voluntarily, fearing the danger of attack or impending military occupation.Footnote ¹¹⁸ Like Ethiopia's legal theory, which highlighted the distinction between constructive and positive displacement, Eritrea's claim involved categories of what it called ‘direct’ and ‘indirect’ displacements. Its Claim 14 addressed civilian flight due to the fear of alleged violations of international law by Ethiopia, whereas Claim 21 covered claims of direct displacement resulting from ‘orders and forceful’ actions by Ethiopian armed forces designed to compel civilians to flee.Footnote ¹¹⁹

Eritrea also claimed in its Claim 14 that Ethiopia should be found liable for preventing Eritrean IDPs from returning to Eritrean territory occupied by Ethiopia. Although the Commission dismissed the claim for lack of jurisdiction and for lack of specificity in terms of the time and space in which the alleged action took place, its decision reveals the Commission's interpretation of relevant provisions of Geneva Convention IV, particularly Article 49. Eritrea argued that since the displacement was caused by the war, parties had the obligation to ensure that IDPs were returned to their homes. The Commission found that Geneva Convention IV does not put an obligation on the parties to ‘repatriate displaced civilians’.Footnote ¹²⁰ Its decision to dismiss this claim on the basis of limitation of its jurisdiction is a reflection of its limited interpretation of its temporal remit. It held that return and resettlement would take a considerable period of time which would exceed the limited temporal scope of the Commission's jurisdiction. It also rejected Eritrea's contention that the lack of suitable conditions for the return of IDPs to their areas was not directly related to the conflict, as was the repatriation of POWs. This limited interpretation of the temporal scope of its jurisdiction was somehow at variance with a more expansive interpretation of its competence as shown in its decision on POW claims.Footnote ¹²¹

Eritrea's claim with respect to Awgaro village in Eritrea represents the only instance where the Commission found one of the parties liable for unlawful displacement under international law. This incident relates to the displacement of over 600 village families, and provided the Commission with the opportunity to answer some important questions, including that of the standard of proof the Commission should adopt if Ethiopia were to be found liable. As for claims involving rape, the Commission held that, though the Awgaro incident did not establish a pattern of frequent and pervasive violations of international law, it constituted a serious violation for which Ethiopia should be liable.Footnote ¹²² An Ethiopian military officer had ordered civilians to leave the village, and the Commission accepted Eritrea's evidence that villagers were not allowed to carry with them anything other than their personal belongings. Eritrea also presented declarations showing that Ethiopian soldiers had looted civilian property, burned houses, and confiscated properties of those who were displaced.Footnote ¹²³ The Commission stated that the evidence suggested a forced displacement based solely on ethnicity,Footnote ¹²⁴ and Ethiopia did not show military justification for ordering the civilians to leave. While Ethiopia's violations of international humanitarian law in the town did not meet the criteria for being found to be pervasive, frequent, and systematic, the Commission found that they were indeed serious enough to render Ethiopia liable under international law.

7.1. Unlawful displacement

The Commission in its decisions and awards used terminologies such as ‘unlawful expulsion’ and ‘displacement’ to describe situations which concern the forced displacement of people across an international boundary or within the territory of one of the belligerent states. On the other hand, it avoided a frequent use of terms such as ‘deportation’, ‘evacuation’, ‘transfer’ or ‘internal displacement’. Even when such terms were used, the Commission did not clarify what the differences or similarities were between them.Footnote ¹³⁴ Although the EECC's decisions do not provide sufficient explanation as to why the Commission might have preferred certain terminologies to others, they do indicate the Commission's consistent view that any form of displacement, to result in a liability, should be linked directly with a violation of international law. The jurisprudence of the Commission also provides substantial information on the responsibility of states for international wrongful acts, including those that result in displacement of populations.Footnote ¹³⁵

Whereas the EECC made important determinations as to the liability of the parties with respect to unlawful deportation, its proceedings resulted in far fewer findings of liability for unlawful internal displacement associated with the armed conflict than one would have expected. Both procedural and substantive factors influenced such an outcome. It is notable that the Commission found no state liability in all the claims relating to unlawful displacement except one – the incident in the Eritrean village of Awgaro – in which Ethiopian forces were held liable for ordering in violation of international law the displacement of all villagers. The explanation for this strikingly diminished level of liability is locked in three important factors. First, as the Commission itself often admitted, the quality of evidence presented by the parties resulted in far fewer determinations of liability than the parties had expected. The stringent evidentiary requirement adopted by the Commission meant that a large component of the claims presented by the parties was rejected. Often the awards of the Commission do not explain sufficiently why it had decided that the information or evidence presented by the party was not acceptable.

Second, the Commission's narrow interpretation of its mandate under the December 2000 agreement meant that it rejected a great many claims on procedural and evidentiary grounds. The implication of this limited jurisdictional scope for claims related to unlawful displacement and expulsion was that incidents of displacement and violations of the ‘right to return’ following the conclusion of the December agreement were not covered. The Commission was inconsistent as to which incidents outside the jurisdictional time frame should in certain contexts be considered as being ‘related to the conflict’, and relied on a very restrictive interpretation of existing laws. The limited nature of the Commission's temporal jurisdiction meant that only claims in relation to events which occurred during that period can be brought to it. For example, the Commission held that it did not have jurisdiction with respect to Eritrea's Claim 14, arguing that events incorporated in the claims such as alleged prevention by Ethiopia of the return of Eritrean displaced persons into the TSZ and adjacent areas occurred after the conclusion of the peace agreement.

Third, the Commission also adopted an interpretation of existing law which suggested that even when civilian displacements are at their most unpleasant, they may yet be permissible consequences of war. It denied all Ethiopia's claims for unlawful displacement in Woredas, which fell under the central front, despite the fact that Ethiopia's sworn declarations showed that civilians were targets of Eritrean shelling and that, in the Commission's own words,

7.2. Expulsion or deportation

The Commission's biggest challenge with respect to its decisions on illegal expulsion was to keep the balance between what it calls ‘broad powers of belligerent forces’ to expel nationals of an enemy state and in certain conditions dual nationals from their territory, and the right of civilians to be protected from forced displacement and the need to ensure that such measures do keep to minimum guarantees as stipulated in the Geneva Conventions. The Commission rightly stated that mass expulsion of all nationals of an enemy state at the outset of a war is inconsistent with international humanitarian law.Footnote ¹³⁷ It also underlined this prohibition with particular reference to such expulsions being made on the basis of any ethnic grounds.Footnote ¹³⁸

The Commission's interpretation of the exceptions to prohibition of deportation under Article 49 of Geneva IV is instructive. By holding that Eritrea's mass expulsion of Ethiopians from an Ethiopian territory it occupied does not constitute a violation, it unmasks what constitutes a material reason justifying the evacuation of enemy civilians deep into the territory of the occupying belligerent state.Footnote ¹³⁹ The Commission also considered the conditions for these civilians in IDP camps, and decided that the fact that conditions were difficult and grim does not make them unlawful. For these conditions to be in breach of existing international obligations, the alleged violations need to indicate a pattern of abuse.Footnote ¹⁴⁰

7.3. Ethnic cleansing

The Commission's awards also shed light on issues that may be relevant in determining liability for breaches of ‘ethnic cleansing’. This claim was brought to the Commission based on Eritrea's contention that Ethiopia had indeed deported Eritreans for reasons of ethnicity. The Commission, without attempting to define ‘ethnic cleansing’ or elaborate on its constituting elements, seemed to be satisfied that at least one important condition should be met: the existence of a national policy to deport all Eritreans from the country. The question was whether Eritreans still continue to live in the country.

There were instances, particularly in cases of the expulsion of rural Eritreans or of Ethiopians of Eritrean extraction from Ethiopia and the expulsion of Eritreans from Awgaro, where the Commission found the expulsion to be based on ethnicity. But it denied Eritrea's submission that Ethiopia was guilty of ethnic cleansing, finding that the measures taken by the Ethiopian state and sometimes its local agents did not indicate the existence of a national policy to force all Eritreans to flee the country.

7.4. The forced nature of expulsion or displacement

The forced nature of the displacement was an important consideration for the Commission in finding liability for unlawful expulsion and displacement. With respect to Ethiopia's claim of unlawful expulsion of Ethiopians from Eritrea, the Commission held that, despite the fact that Eritrea's government action might have made conditions difficult and harsh for Ethiopians, these conditions did not render the subsequent displacement of Ethiopians unlawful, since these Ethiopians still had alternatives to departure. It found a ‘spectrum of voluntariness’ in the departure of Ethiopians and that the growing economic difficulty, family separation, harassment, sporadic discrimination, and even attacks by Eritrean civilians did not make the Eritrean government liable for their flight.Footnote ¹⁴¹ It also rejected the legal contention of ‘indirect’ or ‘constructive’ expulsion of Ethiopians who were allegedly forced to leave by the policies and decisions of the Eritrean government. Thus the Commission held that for a claim of an indirect or constructive expulsion to hold any water, it must meet two criteria: harm or the threat of harm to the population must present no realistic alternative to departure, and the measures giving rise to departure must have been undertaken with the intention of making people leave the country.Footnote ¹⁴²

Regarding those civilians who fled their area having been affected by the actual fighting, the Commission held that civilian flight from the dangers of war does not on its own result in liability. It is necessary to show that the state accused of conducting the illegal displacement did so by deliberately terrorizing civilians with a view to making them flee their areas. Thus the subjective experience and perception of civilians who might flee due to a perceived danger of hostility do not make their flight the result of illegal action.

At least on the face of it, other tribunals such as the ICTY seem to have adopted a much broader definition of forced displacement. For example, in Prosecutor v. Milomir Stakić, the court held that

Accordingly, forced displacement may involve, in addition to actual physical coercion, additional elements such as psychological oppression, the threat of force, or any other measures that render displacement involuntary. But even Stakić clearly establishes that the coercion need not as such be generalized, but should target the person who is claming that his or her right is violated.

7.5. Remedies for displacement

The EECC's jurisprudence and the claims process in general provide insights into how a procedure designed to filter civilian liability for international wrongs may address the plight of those who are uprooted by an international armed conflict. Although provision of compensation for violations of humanitarian law has not been used frequently by international tribunals and courts, the EECC's experience suggests the possibility of revitalizing such remedial mechanisms. This promise, however, is threatened by the Commission's uncertainty regarding how it intends to move forward on this very important question in the light of the size of population affected by displacement, the difficulty of identifying individual claims, and the resource constraints the parties face.

It is also not yet clear how the Commission's financial awards may finally reach those who were directly affected by the war. EECC's Decision No. 8 reaffirms two important principles. On the one hand, it underlines the responsibility of states to take measures with a view to making sure that their nationals who are victimized by breaches of international humanitarian law are properly compensated. On the other hand, it recognizes a wide discretion on the part of the parties on the disposition and use of damages. The Commission even acknowledged the authority of the parties to bypass individual compensation if they are convinced that the humanitarian objectives of the December 2000 agreement can be achieved by alternative relief programmes such as education, health, agriculture, and so on. This position was reiterated in the Commission's final awards on damages. Relief understood so broadly, however, may be difficult to implement and monitor. It is far less clear how this expansive approach to compensation is compatible with the right of individuals to an effective remedy.

7.6. Jus ad bellum, liability, and compensation for forced displacement

The nature and consequences of the Commission's jus in bello decision with respect to actions taken by states mainly during the conflict were largely precise. The implications of its jus ad bellum decisions against Eritrea, however, are far less clear. Eritrea's position has been that the Commission cannot make provision for a responsibility to compensate in addition to what has been provided in its specific awards, and that the Commission's decision on the use of force shall be declaratory in nature. Ethiopia, on the other hand, argued that the decision should result in compensation for losses connected with a wide spectrum of consequences of the conflict.

Early on the Commission showed an inclination to consider compensation for violation of the law on use of force.Footnote ¹⁴⁴ In its jus ad bellum award which found Eritrea liable for violating the prohibition on the use of force, it held that its damages phase would uncover the scope of damages for which Eritrea is liable because of its violation.Footnote ¹⁴⁵ Ethiopia's position has been that Eritrea's violation should result in compensation for the loss, damage, and injuries that are linked to this original violation. The Commission rendered damages decision awarding Ethiopia US$45 million for internal displacement. It communicated to the parties that only damages that are reasonably foreseeable or proximately caused by specific findings of liability identified by the Commission in its jus ad bellum decision will be examined. This means that victims of displacement will not win relief simply because their displacement is linked to a war that was generated by Eritrea's illegal use of force.Footnote ¹⁴⁶

7.7. The EECC as a forum to address general protection and assistance needs of victims of forced displacement

The procedure followed by the EECC excluded a great number of affected communities from the Commission's mandate, made the Commission adopt a rather restrictive interpretation of existing law as it relates to displacement during an international armed conflict, and resulted in a compensation regime whose direct relevance to the victims is far from certain. The legal proceeding of the claims process is also overshadowed by the politically weighty decisions of the Eritrea-Ethiopia Boundary Commission, whose implementation is undermined by serious differences between the parties. These dispute settlement mechanisms are markedly legalistic and have been undertaken in an environment where there is no political contact between the parties.

There is also a more structural underpinning of the Commission's limitations. The December 2000 agreement is not designed in such a way as fully to take into account the unique challenges of forced displacement and how it should be addressed by the Claims Commission. Addressing the ‘negative socio-economic impact of the war on civilian population’ is an important aspect of the EECC's mandate. But, as this article attempts to show, the agreement lacks sufficient, clear provisions on how the particular needs of civilians affected by the war will be addressed comprehensively and meaningfully.Footnote ¹⁴⁷ No representatives of victims of the conflict had access to influence the negotiations over the agreement. Even now, long after the agreement was concluded, there are no victims’ associations in either Ethiopia or Eritrea. Linking compensation to those who have been affected directly by a specific infraction of international humanitarian law means that a great many people who were generally displaced by the war have been left unprotected. Both in the negotiation of the December 2000 agreement and in the claims process itself, the participation of victims or their representatives was minimal. Only the state parties could have direct access to the Commission. The Commission has now acknowledged the authority of each government to determine how the compensation awarded to the victims should be distributed.