By Tecola W. Hagos

The process of the resolution of the Eritrea-Ethiopia Claims case must have taken its toll on the Commissioners and the parties to the dispute as well. By looking at the last Award, I am left wondering that the Commission must be in a comatose state to enter such an insulting award. This is a major case despite the fact that no one seems to have paid much attention to the process. I respect the process, but I am baffled by the final decision on assessment of liabilities and puzzling rational offered in many of its periodic decisions. The award pronouncement itself is an embarrassment to the legal profession as a whole because of the whimsical nature of the decision and the lame reasoning given as the basis for such conclusions reached by the Commissioners. In fact some of the statements are very egregious or at the worst racist that should be excised from the record of the decision.

When parties to a conflict choose arbitration as opposed to court procedure it is because of the single most attractive feature of an arbitration procedure, namely saving time and resolving the problems as quickly as possible. The next important consideration is shielding governments from public scrutiny, which of course is the least attractive to the public especially when the parties to such arbitration are unpopular national governments. The Commissioners took about nine years to enter their final award. Although nine years is not the longest time on record for an arbitration decision, it is still a very long time.

I cite here as an example a clear technical problem that can easily be turned into a legal bottleneck: it is the obvious difficulty of carrying out any remedy under the Algiers Agreement. The provision dealing with the Claims Commission mandate in Article 5 does not specify how the damage assessed by the Commissioners is to be effected, for there is no indication in what currency the damage is to be paid. That alone could be sufficient reason to invalidate the Agreement because such lack of specificity would render it inoperative and meaningless. In the extreme, it would require extraordinary stretch of the provisions of the Agreement to construct any form of payment. Either of the Parties legitimately may declare the whole Agreement as inoperable thus invalid.

The question of law (legality) is far more illusive even for the parties and the Commissioners to notice for they have their nose too close to the case in controversy. What is in question is the issue of what “law” is in light of the complex historical and socio-political setting—an enquiry and challenge as ancient as lawyers and philosophers have existed. The idea that “law” is organic as propounded by both Plato and Aristotle on one side, and Protagoras and his Sophist group on the other thought of “the law” as a product that oozed out from the very structure of society and is the instrument of keeping those in power in their entrenched dominant positions. Of course, over the centuries that fundamental distinction has persisted as two schools of thoughts, but had been dressed in different mantel at different times of human history; however, essential characteristics of such differences remain to this day.

It is in this fundamental and foundational question of “law” that I find the Claims Commission erred in entering decisions and awards pursuant to the Algiers Agreement that is flawed and unenforceable. The Algiers Agreement is a flawed and disgraceful Agreement that preemptively set the outcome of any further arbitration or court decision in favor of Eritrea. Eritrea is the instigator of the conflict that resulted in major war where about a hundred thousand soldiers died and millions of dollars worth of property was destroyed. The Agreement favors Eritrea that was the militarily defeated party against the Winner State of Ethiopia. In several of the decisions of the Commission that fundamental question remained unresolved and central to the case at hand.

The Commissioners must be fully aware of the fact that none of the mechanisms provided in the Algiers Agreement has been successfully implemented and aggressive activities by Eritrea has been duly castigated by the united Nations and recently by the United States:

1) The Boundary Commission’s decision was not accepted by the parties.

2) The UN Peace Keeping Forces were run out of Eritrea by the Eritrean Government.

3) The fact finding entity that was anticipated in Article 3 of the Algiers Agreement was never established.

4) Contrary to the purpose of the Algiers Agreement to end hostilities and bring about peaceful coexistence between Ethiopia and Eritrea, both hostility and aggression between Ethiopia and Eritrea has become a fact of life, for Eritrea has been engaged in financing and training Somali insurgents and terrorists from within Ethiopia against the Ethiopian government.

5) Eritrea has amassed in what was supposed to be a demilitarized zone no less than a hundred fifty thousand soldiers with their heavy weapons violating the Security Council’s Resolutions, the Framework Agreement, and Agreement on Cessation of Hostilities threatening Ethiopia.

With such major setbacks on the ground, it is foolhardy of the Claims Commission to plough ahead in its headstrong manner and render decisions and awards basing its authority on a mandate by the very same Algiers Agreement that had been compromised in all other aspects as shown above.

Ethiopia has every legal and political right to reject the decisions and awards of the Claims Commission. Ethiopia is within its fundamental right as a sovereign state to declare the Algiers Agreement null and void. As far as Ethiopia is concerned, the controversy with Eritrea is a question of national security and the preservation of national Sovereignty and territorial integrity that the Algiers Agreement put in jeopardy. No nation can be forced into accepting an agreement that was clearly meant to compromise its national vital interest in favor of a party that is adversarial and defeated in a war that it started. The Algiers Agreement is a shameful act against the People of Ethiopia by its own treasonous leaders, the OAU, the United Nations Security Council, the United States Government and very may parties involved in such illegal, underhanded and immoral activities that resulted in land locking this most ancient of independent states by fabricating a factious entity that was part of the Ethiopian state except for a brief colonial period.

My view here is not the view of a simple man moved by highly charged patriotic zeal. In fact, I can assert without false modesty that my opinion is that of a man who had studied thoroughly the juridical, historical, and socio-political ramification of the conflict between Ethiopia and the “independent” Eritrea, a former part of Ethiopia. I have read every decision and series of awards, resolutions and statements by international bodies and their spokesmen and spokeswomen, and comments by informed individuals including government officials. I am not alone in these views expressed in this commentary either. For example, the distinguished Professor of International Law at the University of Cambridge, Christiane Gray as far back as 2006, in an incisive article articulated the deficiency and excess of the arrogant assumptions by the Claims Commission power and authority it does not have, which even the International Court of Justice had restrained itself very carefully, as follows:

“The recent decision by the Eritrea/Ethiopia Claims Commission on the ius ad bellum claims of Ethiopia – that Eritrea had violated the law on the use of force in starting the 1998–2000 war between the two states – is a troubling one. It raises questions about the proper role of arbitral tribunals in such cases. There were many factors which suggested that the Commission should have abstained from giving judgment. There was no unequivocal agreement between the parties that the Commission’s jurisdiction extended beyond claims for violations of humanitarian and other international law during the conflict to an examination of responsibility for the start of the war. Moreover, the award is extremely brief, and consequently it deals with controversial issues of the law of self-defence, such as the meaning of armed attack and the duty to report to the Security Council, in a rather limited way. The award also raises important questions about the relationship of an arbitral tribunal to other bodies. In this case, the award of the claims Commission undermined the Ethiopia/Ethiopia Boundary Commission’s 2002 Delimitation Decision, already under challenge by Ethiopia, at a time of increasing tension along the border.” [See Christine Gray, The Eritrea/Ethiopia Claims Commission Oversteps Its Boundaries: A Partial Award? The European Journal of International Law (EJIL) Vol. 17 no.4: 699-721 (2006).

I emphasize the fact that it must be understood that the Claims Commission was constituted pursuant to Article 5 of the Algiers Agreement of 12 December 2000, an Agreement that many Ethiopians consider to be illegal. A number of Ethiopian scholars consider the Algiers Agreement as a kind of fig leaf to cover a fundamental anti-Ethiopia movement bent on fracturing Ethiopia into several mini-states. It was signed by representatives of two individuals fully involved in that goal since 1976 in liberation movements that succeeded to overrun the Military dictatorship of Mengistu Hailemariam. The Algiers Agreement was signed by Meles Zenawi and Isayas Afeworki in Algiers, two dictators who do not represent the people of Ethiopia or for that matter the people of Eritrea either respectively. At any rate the Ethiopian Government was lead by a treasonous leader, Meles Zenawi and by his sycophantic yes-men and yes-women. In the alternative what we have is an extremely incompetent Ethiopian Government leadership. In either case there are sufficient reasons to invalidate and void the Algiers Agreement from having any force of a treaty with international obligations and duties.

As a reminder to all that there is no reason for a group of “White” men being paid millions to throw back in the face of the Parties that hired them for their professional skills insulting phrases such as “the poorest” nations in the World. The Claims Commission assessed the value of human life in both Ethiopia and Eritrea between 500 dollars to 1,500 dollars—which is equivalent to the price of a pedigree dog in the United States and Europe. Such egregious and moronic statement has no place in any decision at any judicial process let alone in a decision of an arbitration tribunal. The claims Commission should recall its decision; apologize to the Parties and the legal profession at large for their unprofessional and outrageous remarks and decisions including awards. Ω

Tecola W. Hagos

August 22, 2009

Washington DC

 

To be continued