New Zealand Yearbook of International Law
Caroline E Foster*
This note reports on two decisions adopted on 1 July 2003 in The Hague by the Eritrea-Ethiopia Claims Commission on the treatment of Prisoners of War (POWs).1 The adoption of these two awards serves as a reminder that the detention of individuals is a subject of concern in international law, and at the same time iterates the importance of States’ legal obligations under the international law of war. While the awards of the Eritrea-Ethiopia Claims Commission apply the law governing the conduct of war (the ius in bello), other current and recent proceedings are drawing attention to States’ obligations under the law on the use of force (the ius ad bellum). In this regard, attention might be drawn to the decision of the International Court of Justice (ICJ) in the Case Concerning Oil Platforms (Islamic Republic of Iran v United States) on 6 November 2003.2
The Eritrea-Ethiopia Claims Commission was established in 2000 following the conflict that had taken place between these two States during the previous two and a half years. The agreement constituting the five-person Commission required it to decide though arbitration the parties’ respective claims against one another for loss, damage and injury arising out of the conflict. Claims may be founded on alleged violations of international humanitarian law, including the 1949 Geneva Conventions, or international law generally.3 The Commission is required under the agreement to endeavour to complete its work within a period of three years after the closing date for submission of applications by the parties. Facilities and services are provided to the Commission at its seat in The Hague under the auspices of the Permanent Court of Arbitration.4
The claims filed with the Eritrea-Ethiopia Claims Commission concern a range of subjects, including not just the treatment of POWs but also of civilians, as well as the conduct of military operations in the front zones of the parties’ conflict, and additionally questions relating to diplomatic immunities and to economic impacts of government actions during the conflict.5 In May 2002, the Commission decided initially to address the parties’ claims concerning the treatment of POWs, and then to consider claims of military misconduct in the Central Front zones,6 followed by claims of the mistreatment of civilians. Hearings on the claims concerning the treatment of POWs were held in August 2002, and the Commission issued its two Partial Awards on the Treatment of Prisoners of War on 1 July 2003.7
During the Eritrea-Ethiopia conflict, Ethiopia interned some 2,600 Eritrean POWs in six permanent camps successively,8 while Eritrea interned approximately 1,100 Ethiopian POWs in five permanent camps successively.9 A wide range of issues arose in relation to the treatment of these individuals. The Commission saw its task as determining liability for serious violations of the law on the treatment of POWs, and considered this to require a focus on frequent and pervasive acts and omissions in their treatment.10
In relation to Eritrea’s claim against Ethiopia, the Commission found that Ethiopia had failed to take effective measures to prevent the beating or other unlawful abuse of Eritrean POWs on capture; had frequently deprived Eritrean POWs of footwear on long walks to their place of detention following capture; had failed to protect their personal property; had subjected them to enforced indoctrination at certain camps; had permitted health conditions at the camp of Mai Kenetal that would seriously and adversely affect or endanger health; had provided until December 2000 a diet that was seriously deficient in nutrition; had failed to provide the required standards of medical care, particularly at Mai Kenetal, and to segregate prisoners with infectious diseases and to conduct regular physical examinations of prisoners; and had delayed for seventy-seven days longer than reasonably required the repatriation of 1,287 Eritrean POWs.11
In relation to Ethiopia’s more extensive claims against Eritrea, the Commission found that Eritrea had: refused to permit the International Committee of the Red Cross (ICRC) to visit all POW detention facilities and to register and interview Ethiopian POWs and provide them with customary forms of relief; had failed to protect Ethiopian POWs from being killed upon capture; had deprived all POWs of footwear during long walks to their place of detention following capture; had permitted threatening and beating of POWs during interrogations, frequently upon capture; had confiscated POWs’ personal property; had permitted pervasive and continuous physical and mental abuse of POWs in their camps; had seriously endangered the health of POWs at four camps by failing to provide adequate food, drinking water, housing, sanitation and bathing opportunities; had failed to provide the required standard of medical care, to segregate prisoners with infectious diseases and to conduct regular physical examination of POWs; had subjected POWs to unlawful labour conditions; had permitted POWs’ unnecessary suffering during transfers between camps; and had failed to allow POWs to complain about their conditions, including frequently punishing those who attempted to do so.12
Several aspects of the reasoning and the processes employed by the Commission call for comment.
Difficulty arose from the fact that although Ethiopia had ratified the four 1948 Geneva Conventions in 1969 the Commission did not consider that Eritrea could be regarded as having succeeded Ethiopia as a party to these treaties when Eritrea became independent from Ethiopia in 1993. Senior Eritrean officials had made it clear at the time that Eritrea did not consider itself party to the Conventions, and so a presumption of the continuity of treaty relationships could not be applied. Eritrea had subsequently become party to the Conventions through accession on 14 August 2000. Accordingly, the law applying between the parties in relation to their conflict before that time was customary international law.13 The Commission decided to proceed on the basis that the provisions of the Geneva Convention relative to the Treatment of Prisoners of War (the Third Geneva Convention) reflected customary international law, except that if one of the parties asserted this was not the case, the Commission indicated it would hear argument on the point.14 Customary international law was expressly found absolutely to prohibit the killing of POWs, to require the dead to be collected, the live wounded and sick to be collected and cared for, and POWs to be evacuated promptly and humanely from the battlefield.15
Why did the Commission decide to adopt this approach? The Commission cited modern authorities supporting the proposition that the Geneva Conventions had largely become expressions of customary international law.16 The Commission considered that the near-universal acceptance of the Conventions supported that approach,17 and took into account that one of the purposes of the Geneva Conventions was to codify customary international law.18 The Commission also noted authority for the view that the special character of the subject matter concerned was relevant to the speed with which rules could be considered to have become part of customary international law.19 Above all, though, the Commission’s approach may have been a practical one. Both parties agreed that the Geneva Conventions had largely become expressions of customary international law,20 and as they had in their pleadings invoked relevant provisions of the Third Geneva Convention21 this approach offered a straightforward way for the Commission to proceed.
In relation to Ethiopia’s claims against Eritrea the Commission was called upon to address specifically the question of whether States have an obligation under customary international law to permit the ICRC to visit POWs, and found this to be the case, rejecting Eritrean arguments to the contrary. The Commission considered ICRC access to POWs was an essential part of the regime for POW protection, and that the treaty-based requirements of access found in the Third Geneva Convention reflected prior practices that had customary international law status. It was noted that compliance with the standards of treatment of international humanitarian law had not been sustained where the ICRC had been excluded from visiting internees in past conflicts. The Commission cited the International Court of Justice in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons,22 where the Court characterized rules of international humanitarian law fundamental to “elementary considerations of humanity” as “intransgressible principles of international customary law”. In the view of the Commission it would be irresponsible to consider rules on ICRC access to POWs inapplicable to the conflict between Ethiopia and Eritrea.23 Accordingly, Eritrea was found responsible by the Commission for its failure to grant the ICRC full access to Ethiopian POWs.24
Two further points of interest arise in relation to distinct but related questions of evidence in the proceedings before the Commission. The first concerns the standard of proof applied by the Commission, and the second concerns the availability of evidence from the ICRC. In relation to the first point, the Commission was clear about the standard of proof it had decided to apply in the proceedings before it, and in this respect distinguished itself from many other international courts and tribunals. Noting the gravity of the charges against the two States, the Commission determined that it required “clear and convincing” evidence if a Party’s liability for a violation of applicable international law were to be established.25 The Commission received from the parties a large volume of evidence, including questionnaires completed by POWs, copies of camp regulations and training materials, written testimony, newspaper articles, medical records, oral evidence and expert testimony.26 In relation to a number of claims, however, the Commission found that it lacked sufficient evidence to find there had been violations of international law. For example, there was insufficient corroborated evidence to find Ethiopia responsible for frequent or recurrent killings of POWs upon capture.27 Similarly, in relation to allegations of coercive interrogation by Ethiopia the Commission found there was insufficient proof of a pattern of coercive interrogation.28
The second point to be made concerning questions of evidence in the Commission’s proceedings is that the Commission was not permitted by the ICRC to have access to certain ICRC material in the possession of the parties, including reports made by the ICRC on its visits to the parties’ POW camps. The parties themselves had agreed to the use of this material by the Commission, and the President of the Commission met in Geneva with ICRC officials in August 2002 to discuss its possible use.29 The ICRC considered however that its ongoing ability to continue performing its mission required it to maintain strong assurances of confidentiality that could not be abridged. The ICRC was prepared only to allow the Commission to use ICRC material that was already publicly available, and not that held by the parties. The Commission understood the concerns underlying ICRC confidentiality and non-disclosure policies, but observed that the Commission and the ICRC shared an interest in an informed application of international humanitarian law. The Commission expressed disappointment with the decision of the ICRC to withhold access to the material in question.30
In developing an overall perspective on the Eritrea-Ethiopia awards the Commission’s General Comments on the situations before it should be noted. Based on the extensive information it received, the Commission recorded as an important preliminary point that both Parties had organized efficient official training programmes for their troops on the treatment of POWs, and both States had consistently taken POWs, and had also moved illegal personnel who were hors de combat away from the battlefield. Despite the considerable poverty of both countries, both had made significant efforts to feed and care for captured POWs. Notwithstanding their identified deficiencies in performance, both States had demonstrated commitment to the most fundamental principles regarding POWs.31 This was evident, for example, in accounts of how Ethiopian soldiers threatened to kill POWs at the front or while they were being evacuated from the front, but held themselves back from doing so or were stopped by their comrades from carrying out their threats.32 Eritrean officers were likewise reported to have intervened to prevent killings and cut short physical abuse.33
The Commission’s decisions are notable for their principled and practical approach to the interpretation and application of international humanitarian law. The tone of the Commission’s decisions is strengthened further as a result of the Commission’s understanding that sometimes conditions on the ground may make it difficult to give the fullest possible effect to international humanitarian law. This approach is demonstrated in the Commission’s preparedness to take into account the harshness of battlefield conditions in assessing compliance with the application of the rules of law on the treatment of POWs. For example, the limited medical training and equipment provided to front line troops were taken into account in considering compliance with requirements to provide POWs with medical care in the initial period following their capture.34 Likewise, soldiers’ own hardships were acknowledged in assessing the conditions of the POWs.35
The Eritrea-Ethiopia Commission’s Partial Awards in the POW cases are timely. Although the Commission’s work may take its place historically alongside that of a long line of claims commissions, the rulings it has been asked to make on compliance with international humanitarian law complement those made in recent years by the International Criminal Tribunals for the Former Yugoslavia and for Rwanda, and also the expected future decisions of the new International Criminal Court.36 Unlike those bodies, however, whose work focuses on the criminal responsibility of individuals, the Commission’s task is to determine whether State responsibility has been incurred by Eritrea and Ethiopia in relation to events arising out of their conflict. As debate continues internationally about the status and treatment of persons detained by the United States in Guantanamo Bay, the Commission’s awards on the treatment of POWs are a reminder that under international law States’ deprivation of individuals’ liberty is permissible only in certain circumstances and subject to certain conditions. The awards also number among an increasing number of judgments from international courts and tribunals dealing with States’ legal obligations under the law of war, calling attention to the significance and status of this body of law.
* Dr Caroline E Foster BA LLB (Hons) (Cantuar) LLM PhD (Cantab), Lecturer in Law, University of Auckland. With thanks to Professor James Crawford for drawing my attention to the Eritrea-Ethiopia Claims Commission awards and to Dr Roger O’Keefe for his comments on an earlier draft of this note.
1 Partial Award – Prisoners of War Eritrea’s Claim 17 Eritrea-Ethiopia Claims Commission 1 July 2003 (Eritrea’s Claim); Partial Award – Prisoners of War Ethiopia’s Claim 4 Eritrea-Ethiopia Claims Commission 1 July 2003 (Ethiopia’s Claim).
2 General List No 90. See this author’s forthcoming note on the Oil Platforms case in the Singapore Journal of International and Comparative Law, December 2003. Note might also be taken of the case of Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro), currently before the International Court of Justice (General List No 91). In these proceedings Bosnia and Herzegovina have lodged claims against Yugoslavia in relation to the conflict in the former Yugoslavia in the 1990s and Yugoslavia’s “ethnic cleansing” practices. Bosnia and Herzegovina assert that Yugoslavia’s use of force was illegal, as well as alleging that Yugoslavia committed genocide and other breaches of the law of armed conflict. Proceedings on the merits are pending. Attention might also be drawn to the proceedings pending in the case of Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Yugoslavia) General List No 118, lodged in 1999. The cases against NATO States that were lodged before the International Court in 1999 by the Federal Republic of Yugoslavia might also be considered. Legality of Use of Force (Serbia and Montenegro v Belgium) General List No 105; Legality of Use of Force (Serbia and Montenegro v Canada) General List No 106; Legality of Use of Force (Serbia and Montenegro v France) General List No 107; Legality of Use of Force (Serbia and Montenegro v Germany) General List No 108; Legality of Use of Force (Serbia and Montenegro v Italy) General List No 109; Legality of Use of Force (Serbia and Montenegro v Netherlands) General List No 110; Legality of Use of Force (Serbia and Montenegro v Portugal) General List No 111; Legality of Use of Force (Yugoslavia v Spain) General List No 112; Legality of Use of Force (Serbia and Montenegro v United Kingdom) General List No 113; Legality of Use of Force (Yugoslavia v United States of America) General List No 114. Although objections to jurisdiction have been upheld in relation to two Yugoslavia’s cases (those taken against Spain and against the US), questions of jurisdiction are still pending in the other eight cases (against Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal and the UK). Legality of Use of Force (Yugoslavia v Spain) Order of 2 June 1999; Legality of Use of Force (Yugoslavia v United States of America) Order of 2 June 1999.
3 Article 5, Agreement signed in Algiers on 12 December 2000 between the government of the State of Eritrea and the government of the Federal Democratic Republic of Ethiopia.
4 See the information posted about the Eritrea-Ethiopia Claims Commission on the website of the Permanent Court of Arbitration at <http://www.pca-cpa.org/ENGLISH/RPC/#Eritrea-Ethiopia%20Claims%20Commission> .
6 Hearings on these claims were held in camera from 11-21 November 2003. Ibid.
The Eritrea-Ethiopia Claims Commission issued its Partial Award on Eritrea's Central Front Claims 2, 4, 6, 7, 8 & 22 and its Partial Award on Ethiopia's Central Front Claim 2 on 28 April 2004, after this Note was finalised.
7 Partial Award – Prisoners of War Eritrea’s Claim 17 Eritrea-Ethiopia Claims Commission 1 July 2003 (Eritrea’s Claim); Partial Award – Prisoners of War Ethiopia’s Claim 4 Eritrea-Ethiopia Claims Commission 1 July 2003 (Ethiopia’s Claim). The twin awards can be found on the website of the Permanent Court of Arbitration, above, n4.
8 Eritrea’s Claim, paras 3-4.
9 Ethiopia’s Claim, paras 3-4. Both parties also made use of a series of transit camps.
10 Eritrea’s Claim, para 56; Ethiopia’s Claim, para 54.
11 Eritrea’s Claim, section V D “Findings of Liability for Violation of International Law”.
12 Ethiopia’s Claim, section V D “Findings of Liability for Violation of International Law”.
13 Eritrea’s Claim, paras 31ff; Ethiopia’s Claim, paras 22ff.
14 Eritrea’s Claim, para 41; Ethiopia’s Claim, para 32.
15 Eritrea’s Claim, para 58; Ethiopia’s Claim, para 64.
16 Theodor Meron, Human Rights and Humanitarian Norms as Customary International Law, Clarendon Press 1989, and Dieter Fleck, (ed) The Handbook of Humanitarian Law in Armed Conflicts, Oxford University Press 1995. Eritrea’s Claim, para 40; Ethiopia’s Claim, para 31.
17 Eritrea’s Claim, para 40; Ethiopia’s Claim, para 31; citing Jonathan I Charney “International Agreements and the Development of Customary International Law” (1986) 61 Washington Law Review 971.
18 Eritrea’s Claim, para 39; Ethiopia’s Claim, para 30f.
19 Above n16, citing Meron. The Commission charaterised the rules involved as “[r]ules that commend themselves to the international community in general, such as rules of international humanitarian law”.
20 Eritrea’s Claim, para 40; Ethiopia’s Claim, para 31. Although note Eritrea’s identification of certain exceptions, Eritrea’s Claim, para 39; Ethiopia’s Claim, para 29.
21 Eritrea’s Claim, para 41; Ethiopia’s Claim, para 32.
22 1995 ICJ Reports 226 para 79.
23 Ethiopia’s Claim, paras 60-62.
24 Above n12.
25 See paragraph C of the Commission’s findings in section V of both Eritrea’s Claim and Ethiopia’s Claim. The Commission’s language was reminiscent of that of the International Court of Justice in the Corfu Channel Case (United Kingdom v Albania), Judgment of 9 April 1949 ICJ Reports 1949 p2, where the Court said in relation to the alleged complicity of Albania in the mining of the Corfu Channel that “a charge of such exceptional gravity against a State would require high degree of certainty that has not been reached here”. See also the articulation of a high standard of proof by the Inter-American Court of Human Rights in its judgments in the Velásquez Rodríguez Case 29 July 1988, para 129, and the Godínez Cruz Case 20 January 1989, para 135. See also the Commission’s discussion of this point, Ethiopia’s Claim, paras 43ff; Ethiopia’s Claim, paras 34ff.
26 Ethiopia’s Claim, paras 39ff; Eritrea’s Claim, paras 48ff.
27 Eritrea’s Claim, para 61.
28 Eritrea’s Claim, para 71.
29 See the information posted about the Eritrea-Ethiopia Claims Commission on the website of the Permanent Court of Arbitration at the site referred to above, n4.
30 Eritrea’s Claim, paras 50ff; Ethiopia’s Claim, paras 45ff.
31 Eritrea’s Claim, para 11; Ethiopia’s Claim, para 12.
32 Eritrea’s Claim, para 60.
33 Ethiopia’s Claim, para 66.
34 Eritrea’s Claim, paras 64-65; Ethiopia’s Claim, paras 69-70.
35 Eritrea’s Claim, paras 67-68; Ethiopia’s Claim, paras 73-74.
36 Rome Statute of the International Criminal Court, adopted in Rome, 17 July 1998, entered into force on 1 July 2002.
Eritrea-Ethiopia Claims Commission
New Zealand Yearbook of International Law