- Prisoners of War (Ethiopia's Claim 4) (Partial Award, July 1, 2003);
- Central Front (Ethiopia's Claim 2) (Partial Award, April 28, 2004);
- Civilians Claims (Ethiopia's Claim 5) (Partial Award, December 17, 2004);
- Jus Ad Bellum (Ethiopia's Claims 1-8) (Partial Award, December 19, 2005);
- Western and Eastern Fronts (Ethiopia's Claims 1 & 3) (Partial Award, December 19, 2005);
- Ports (Ethiopia's Claim 6) (Final Award, December 19, 2005);
- Economic Loss Throughout Ethiopia (Ethiopia's Claim 7) (Partial Award, December 19, 2005); and
- Diplomatic Claim (Ethiopia's Claim 8) (Partial Award, December 19, 2005).
1. In order to permit the earliest possible assistance to individuals who have suffered injury or loss and to reduce the cost of the proceedings, the Commission will seek to complete the damages phase before the end of 2008. In view of the humanitarian purposes set forth in Article 5(1) of the December 12 Agreement, the Commission requests that the Parties inform it in their first filings how they intend to ensure distribution of damages received to civilian victims, including presently available information on existing or anticipated structures and procedures for this purpose.
2. The Commission welcomes the fact that the Parties are in general agreement on a considerable number of the issues they have discussed.
3. The Commission recognizes that there are a few legal issues, such as the scope of damages for breach of the jus ad bellum, that could usefully be addressed as preliminary issues to be decided prior to the filing of briefs on any category of claimed damages. However, the Commission has decided that the additional months required for separate proceedings to hear and decide those preliminary issues would unduly extend the time required to complete the Commission's work on damages. Consequently, the Commission has decided that all such issues should be briefed as part of the first group of claimed damages.
4. Again, for reasons of expeditious resolution of all claimed damages, the Commission has decided to divide the claimed damages into two groups only. Group Number 1 includes the War Front Claims, the Prisoner of War Claims, the Displaced Persons Claims and the preliminary issues the Parties may raise, including the scope of damages for breach of the jus ad bellum, which is an element of all of Ethiopia's claims. Thus, Group Number 1 comprises Eritrea's Claims 1, 3, 4, 5, 7, 9, 13, 17, 21 and 22, Ethiopia's Claims 1, 2, 3 and 4, as well as any preliminary issues raised by either Party. Group Number 2 is composed of all remaining claims, including the Civilians or Home Front claims. Thus, Group Number 2 comprises Eritrea's Claims 15, 16, 20, 23, 24, 27, 28, 29, 30, 31 and 32 and Ethiopia's Claims 5, 6 (jus ad bellum aspects only), 7 and 8.
5. The Parties shall file their briefs and supporting evidence on Group Number 1 Claims by November 15, 2006 and their reply briefs and evidence by February 15, 2007. The Parties may file any additional documents and evidence, together with a brief (not to exceed 10 pages) explanation of the relevance of the additional material filed, at least 21 days prior to the Hearing. The Hearing will take place on the Group 1 Claims as soon as possible after April 15, 2007, on dates to be set following consultations between the Commission and the Parties. The Commission does not envisage authorizing additional pleadings or extending these filing deadlines.
6. A similar schedule will be established for Group Number 2 Claims following the Hearing on Group Number 1 Claims.
7. A single final Award will be issued on all Claims following the second Hearing. Nevertheless, the Commission will issue guidance on preliminary issues and on other issues as appropriate, following the Hearing on Group Number 1 Claims, in order to assist the Parties in preparing the Group Number 2 Claims.
8. The Commission intends to consult closely with the Parties regarding implementation of this Order through the President's conference calls with the Parties and other means, and may create a Working Group for this purpose. The modalities and schedule in this regard will be established following consultations between the Commission and the Parties.
Taking account of the recent discussions between the Commission and the Parties, the following matters will not be addressed at the April 2007 hearing and should not be addressed in the Parties' written submissions prior to that hearing:
(a) Effect of third party donations for replacement or rebuilding: the legal effect to be given to third party payments (including grants, loans, and insurance payments) to compensate for damage illegally caused during the war.
(b) Technical financial questions. This category might include choosing an approach toward currency conversion, the legal effect (if any) of inflation, interest calculations, etc.
(c) Attorney's fees (whether they were to be allowed, disallowed, capped, netted out, etc.)
As appropriate, the Commission will provide guidance regarding the handling of these matters at a later time.
the necessary connection is best characterized through the commonly used nomenclature of "proximate cause." In assessing whether this test is met, and whether the chain of causation is sufficiently close in a particular situation, the Commission will give weight to whether particular damage reasonably should have been foreseeable to an actor committing the international delict in question. The element of foreseeability, although not without its own difficulties, provides some discipline and predictability in assessing proximity. Accordingly, it will be given considerable weight in assessing whether particular damages are compensable.
The Commission notes that, in many situations, the choice of verbal formula to describe the necessary degree of connection will result in no difference in outcomes. In this regard, both Parties agreed that a significant range of possible damages related to war lie beyond the pale of State responsibility....24
1. For permitting in Mereb Lekhe Wereda frequent physical abuse of civilians by means of intentional killings, beatings and abductions, as well as widespread looting and property destruction in the areas that were occupied by its armed forces from May 1998 to May 2000;
2. For permitting in Ahferom Wereda frequent physical abuse of civilians by means of intentional killings, beatings, abductions and wounds caused by small-arms fire, as well as widespread looting and property destruction in the areas that were occupied by its armed forces from May 1998 to May 2000;
3. For permitting in Gulomakheda Wereda frequent physical abuse of civilians by means of intentional killings, beatings and abductions during the invasion in June 1998 and less frequent, but recurring, physical abuse of civilians and frequent looting and destruction of civilian property in the areas that were occupied by its armed forces from June 1998 to June 2000;
4. For permitting the looting and stripping of Zalambessa Town;
5. For the deliberate, unlawful destruction of 75% (seventy-five percent) of the structures in Zalambessa Town;
6. For permitting in Irob Wereda a recurring pattern of excessive violence by Eritrean soldiers against civilians, including frequent beatings and intentional killings, and frequent severe beating and other abuse of civilians taken into custody, as well as widespread looting and property destruction in the areas that were occupied by its armed forces from May 1998 to June 2000;
7. For failing to take effective measures to prevent rape of women by its soldiers in Irob Wereda;
8. For failing to release civilians taken into custody in Irob Wereda and to provide information regarding them; and
9. For failing to take all feasible precautions to prevent two of its military aircraft from dropping cluster bombs in the vicinity of the Ayder School and its civilian neighborhood in the town of Mekele on June 5, 1998, and for the resulting deaths, wounds and suffering by civilians and the physical damage to civilian objects.
a. For permitting frequent beatings of civilians in Tahtay Adiabo Wereda;
b. For permitting the frequent abduction of Ethiopian civilians from Tahtay Adiabo Wereda to Eritrea and for unexplained disappearances;
c. For permitting the looting of property in areas in Tahtay Adiabo Wereda occupied by Eritrean armed forces;
d. For permitting the frequent abduction of Ethiopian civilians from Laelay Adiabo Wereda to Eritrea and for unexplained disappearances;
e. For permitting the looting of property, in particular livestock, in areas in Laelay Adiabo Wereda occupied by Eritrean armed forces;
f. For permitting the frequent abduction of Ethiopian civilians from Kafta Humera Wereda to Eritrea and for unexplained disappearances; and
g. For permitting the looting of property and livestock in areas in Kafta Humera Adiabo Wereda where Eritrean armed forces were present.
a. For permitting intentional and indiscriminate killings of civilians in Dalul and Elidar Weredas from June 11, 1998 to December 12, 2000;
b. For failure to take effective measures to prevent the rape of women in Dalul and Elidar Weredas;
c. For permitting beatings of civilians in Dalul and Elidar Weredas;
d. For permitting the looting and destruction of property in Dalul and Elidar Weredas; and
e. For abduction, forced labor and conscription of civilians in Dalul Wereda.
- Fixed-sum damages for injuries and deaths inflicted upon Ethiopian nationals;
- Fixed-sum damages for loss of Ethiopian nationals' property;
- Actual amount damages for damage to the town of Zalambessa, damage to hundreds of churches and government facilities in Ethiopia, and damages allegedly suffered by numerous Ethiopian entities and government agencies;
- Material damages resulting from Eritrea's aerial operations in Mekele, use of landmines, and harm to natural resources and the environment;
- Damages in respect of prisoners of war; and
- Moral damages.
- the amount of fixed-sum compensation per victim for various violations (i.e., killings, beatings, rapes, etc.);
- the populations in the areas in Ethiopia where particular violations occurred;
- the percentage of each such population suffering a particular violation;
- in the case of claims for moral damages, the extent of increases to reflect the impact of violations on members of victims' families.
1. For permitting in Mereb Lekhe Wereda frequent physical abuse of civilians by means of intentional killings, beatings and abductions...;
2. For permitting in Ahferom Wereda frequent physical abuse of civilians by means of intentional killings, beatings, abductions and wounds caused by small-arms fire…;
3. For permitting in Gulomakheda Wereda frequent physical abuse of civilians by means of intentional killings, beatings and abductions during the invasion in June 1998 and less frequent, but recurring, physical abuse of civilians …;
6. For permitting in Irob Wereda a recurring pattern of excessive violence by Eritrean soldiers against civilians, including frequent beatings and intentional killings, and frequent severe beating and other abuse of civilians taken into custody...;33
a. For permitting intentional and indiscriminate killings of civilians in Dalul and Elidar Weredas from June 11, 1998 to December 12, 2000;
c. For permitting beatings of civilians in Dalul and Elidar Weredas; and
e. For abduction, forced labor and conscription of civilians in Dalul Wereda.35
- US$11,798 for safes and other property looted from the Commercial Bank office in Zalambessa;
- US$64,079 for property allegedly looted from two churches and a mosque in the town;
- US$12,945 for property looted from the Zalambessa customs house, including US$1,000 for a minivan and US$2,500 for contraband items stored at the customs warehouse;
- US$7,246 for property lost by the Tigray Regional Disaster Prevention and Preparedness Bureau (the narrative accompanying this claim stated that this amount included 300,000 quintals of grain, a large quantity that presumably reflected a typographical error); and
- US$3,269 for furniture and recreational equipment taken from the Tigray Youth Association office.
These amounts were appropriately documented and appear reasonable in the circumstances. The Commission awards US$99,000 as compensation for these looting claims.
1. For refusing permission, from May 1998 until August 2000, for the ICRC to send delegates to visit all places where Ethiopian POWs were detained, to register those POWs, to interview them without witnesses, and to provide them with relief and services customarily provided;
2. For failing to protect Ethiopian POWs from being killed at capture or its immediate aftermath;
3. For permitting beatings or other physical abuse of Ethiopian POWs, which occurred frequently at capture or its immediate aftermath;
4. For depriving all Ethiopian POWs of footwear during long walks from the place of capture to the first place of detention;
5. For permitting its personnel to threaten and beat Ethiopian POWs during interrogations, which occurred frequently at capture or its immediate aftermath;
6. For the general confiscation of the personal property of Ethiopian POWs;
7. For permitting pervasive and continuous physical and mental abuse of Ethiopian POWs in its camps from May 1998 until August 2002;
8. For seriously endangering the health of Ethiopian POWs at the Embakala, Digdigta, Afabet and Nakfa camps by failing to provide adequate housing, sanitation, drinking water, bathing opportunities and food;
9. For failing to provide the standard of medical care required for Ethiopian POWs, and for failing to provide required preventive care by segregating prisoners with infectious diseases and conducting regular physical examinations, from May 1998 until August 2002;
10. For subjecting Ethiopian POWs to unlawful conditions of labor;
11. For permitting unnecessary suffering of POWs during transfer between camps; and
12. For failing to allow the Ethiopian POWs in its camps to complain about their conditions and to seek redress, and frequently punishing POWs who attempted to complain.43
for the following violations of international law involving acts or omissions by its civilian officials, military personnel or others for whose conduct it is responsible:
1. For failing to ensure that Ethiopians in Eritrea who were not in detention were protected against acts or threats of violence by civilian and military police and the civilian population as required by Article 27 of Geneva Convention IV;
2. For failing to ensure Ethiopians the right to find paid employment on the same basis as nationals after the June 2000 Cease-Fire Agreement, contrary to Article 39 of Geneva Convention IV;
3. For failing to ensure that Ethiopians were able to receive medical treatment to the same extent as Eritrean nationals as required by Article 38 of Geneva Convention IV;
4. For detaining Ethiopians in police stations, prisons and jails without clear legal basis, without charge or trial or minimum procedural rights, including those under Article 75 of Protocol I, and for concealing some of these Ethiopians from the ICRC in violation of Article 143 of Geneva Convention IV;
5. For permitting Ethiopians so detained to be subjected to physical and psychological abuse and substandard living, sanitary and health conditions contrary to Articles 27 and 37 of Geneva Convention IV;
6. For detaining Ethiopians at Hawshaite camp in western Eritrea during and after February 1999 without legal justification, and for permitting the Ethiopians so detained to be subjected to inhumane treatment and to inadequate food, sanitary and health conditions contrary to Article 27 and 37 of Geneva Convention IV;
7. For detaining several thousand Ethiopian civilians during and after May 2000 without sufficient justification satisfying Article 42 of Geneva Convention IV;
8. For failing to provide these detainees humane treatment and the minimum standards of food and accommodation in violation of Articles 27, 89 and 90 of Geneva Convention IV;
9. For permitting these detainees to be subjected to acts of violence and physical abuse by camp guards, and in particular, for permitting untrained and undisciplined camp guards to use indiscriminate and excessive lethal force against detainees at Wi'a detention camp in July 2000, causing numerous deaths and serious injuries;
10. For expelling several thousand Ethiopians from Eritrea directly from detention camps, prisons and jails during the summer of 2000 under conditions that did not allow them to protect their property or interests in Eritrea;
11. For failing to ensure the safe and humane repatriation of departing Ethiopians in transports that were not conducted or supervised by the ICRC; and
12. For allowing the seizure of property belonging to Ethiopians departing other than from detention camps, prisons and jails, and otherwise interfering with the efforts of such Ethiopians to secure or dispose of their property.46
a. for violating Article 29 of the Vienna Convention on Diplomatic Relations by arresting and briefly detaining the Ethiopian Chargé d'Affaires in September 1998 and October 1999 without regard to his diplomatic immunity; and
b. having retained a box containing Ethiopian Embassy correspondence including blank passports for five years, for violating official Ethiopian diplomatic correspondence and interfering with the functioning of the mission in breach of Articles 24 and 29 of the Vienna Convention on Diplomatic Relations.
1. The Respondent violated Article 2, paragraph 4, of the Charter of the United Nations by resorting to armed force on May 12, 1998 and the immediately following days to attack and occupy the town of Badme, then under peaceful administration by the Claimant, as well as other territory in the Claimant's Tahtay Adiabo and Laelay Adiabo Weredas.
2. The Claimant's contention that subsequent attacks by the Respondent along other parts of their common border were pre-planned and coordinated unlawful uses of force fails for lack of proof.
3. The scope of damages for which the Respondent is liable because of its violation of the jus ad bellum will be determined in the damages phase of these proceedings.64
1. internally displaced persons;
2. civilian deaths on the war fronts;
3. civilian injuries on the war fronts;
4. civilian property damage, including religious institutions, primarily from shelling;
5. deaths and injuries caused by landmines;
6. property destruction and losses by businesses;
7. harm to natural resources and the environment;
8. strafing and bombing of the Mekele airport in 1998;
9. deaths of Ethiopian prisoners of war while in Eritrean camps;
10. costs of operating Ethiopian POW camps;
11. departures of Ethiopians from Eritrea;
12. losses of property at Eritrean ports by Ethiopian government entities, businesses, NGOs and persons;
13. loss of tax revenues, including loss of customs revenue related to property lost at Eritrean ports;
14. damage suffered by Ethiopian Airlines;
15. damage associated with loss of tourism;
16. declines in international development assistance (loss of foreign loans, grants and assistance);
17. loss of foreign and domestic investment;
18. costs of reconstructing and rehabilitating areas in Ethiopia damaged by the war;
19. costs of assisting internally displaced persons;
20. costs of assisting persons expelled or displaced from Eritrea;
21. loss, damage and injury suffered by Ethiopia's Road Authority;
22. loss of revenues from imports and exports due to disruption of trade through Ethiopia ports; and
23. losses due to harassment and intimidation of Ethiopian Embassy staff in Eritrea and visitors to the Embassy.
The Respondent violated Article 2, paragraph 4, of the Charter of the United Nations by resorting to armed force on May 12, 1998 and the immediately following days to attack and occupy the town of Badme, then under peaceful administration by the Claimant, as well as other territory in the Claimant's Tahtay Adiabo and Laelay Adiabo Weredas.67
The Claimant's contention that subsequent attacks by the Respondent along other parts of their common border were pre-planned and coordinated unlawful uses of force fails for lack of proof.68
In this regard, the Commission notes that, in situations involving unlawful use of force, States and the United Nations have created regimes or accepted outcomes involving compensation for far less than the damage caused by the unlawful use of force. Doubtless the experience of 1918 when the victors tried to extract substantial compensation from Germany was an important learning experience, as it contributed to dreadful consequences. Neither Germany nor Japan was made to bear financial responsibility for more than a fraction of the injury caused by their conduct in starting and waging the Second World War, although both suffered some mandated cession of territory. The experience of the UNCC, frequently cited by both Parties, is also instructive. Unlike the Parties in these proceedings, Iraq is a country with great natural wealth. Nevertheless, when the UNCC was created, the UN Secretary-General and the Security Council took pains to assure that any funds provided to the UNCC to pay claims were in excess of amounts required for Iraq's imports and debt service.85