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Eritrea-Ethiopia Claims Commission (EECC): Partial Award Regarding Ethiopia's Central Front Claim 2

Published online by Cambridge University Press:  27 February 2017

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Type
Judicial and Similar Proceedings
Information
International Legal Materials , Volume 43 , Issue 6 , November 2004 , pp. 1275 - 1300
Copyright
Copyright © American Society of International Law 2004

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References

* This document was reproduced and reformatted from the text appearing at the Permanent Court of Arbitration website (visited October 7, 2004) <http://www.pca.org>.

1 See Ethiopia's Memorial, Claim 2, filed by Ethiopia on Oct. 15, 2002, at 11-32,11-36.

2 That comment is generally attributed to Senator Hiram Johnson, an opponent of entry by the United States in the First World War. See Philip Knightly, The First Casualty—From The Crimea To Vietnam: The War Correspondent As Hero, Propagandist And Myth Maker p. 17 (1975).

3 Julius Stone, Legal Controls Of International Conflict pp. 321-323 (1954).

4 Award, Partial, Prisoners of War, Eritrea's Claim 17 Between the State of Eritrea and The Federal Democratic Republic of Ethiopia, para. 46 (July 1,2003)Google Scholar [hereinafter Partial Award in Eritrea's Claim 17]; Award, Partial, Prisoners of War, Ethiopia's Claim 4 Between The Federal Democratic Republic of Ethiopia and The State of Eritrea, para. 37 (July 1,2003)Google Scholar [hereinafter Partial Award in Ethiopia's Claim 4].

5 Eritrea's claims present jurisdictional issues regarding certain claims allegedly not asserted in its Statement of Claim. These are not present in Ethiopia's Claim 2 and will be addressed in the Commission's separate Award in Eritrea's Claims 2, 4, 6, 7, 8 and 22.

6 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. p. 3114, 75 U.N.T.S. p. 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. p. 3217, 75 U.N.T.S. p. 85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. p. 3316, 75 U.N.T.S. p. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12,1949,6 U.S.T. p. 3516, 75 U.N.T.S. p. 287 [hereinafter Geneva Convention IV].

7 Partial Award in Eritrea's Claim 17, supra note 4, at para. 38; Partial Award in Ethiopia's Claim 4, supra note 4, at para. 29.

8 Partial Award in Eritrea's Claim 17, supra note 4, at paras. 4 CM1; Partial Award in Ethiopia's Claim 4, supra note 4, at paras. 31-32.

9 Hague Convention (IV) Respecting the Laws and Customs of War on Land and Annexed Regulations, Oct. 18,1907,36 Stat. p. 2277, 1 Bevans p. 631 [hereinafter Hague Regulations].

10 International Military Tribunal, Trial of the Major War Criminals by the International Military Tribunal pp. 253-254 (1947); United States v. Von Leeb [High Command Case], 11 Trials Of War Criminals Before The Nuernberg Military Tribunal Under Control Council Law No. 10, at p. 462 (1950); Report of the Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808, Annex, at 9, U.N. Doc. S/25704 (1993); see also 2 Lassa Opppenheim, International Law pp. 234-236 (Hersch Lauterpachted., 7thed. 1952); Charney, Jonathan I., International Agreements and the Development of Customary International Law, 61 Wash. L. Rev. p. 971 (1986).Google Scholar

11 Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. p. 3 [hereinafter Protocol I].

12 U.N. 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, Oct. 10, 1980, 1342 U.N.T.S. p. 137, reprinted in 19 I.L.M. p. 1523.

13 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, Oct. 10,1980,1342 U.N.T.S. p. 168, reprinted in 19 I.L.M. p. 1529 [hereinafter Protocol II of 1980].

14 Id., as amended at Geneva, May 3, 1996, reprinted in 35 I.L.M. p. 1209 (1996).

15 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, Sept. 18, 1997, 36 I.L.M. p. 1507 (1997).

16 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. p. 171 [hereinafter ICCPR].

17 Eritrea's Memorial, Claims 2, 4, 6, 7 and 8, filed by Eritrea on Oct. 15, 2002, Vol. 1, para. 1.17.

18 ICCPR, supra note 16, at art. 4.

19 See supra para. 7.

20 Partial Award in Ethiopia's Claim 4, supra note 4, at para. 41.

21 Protocol I, supra note 11, at art. 4.

22 See, e.g., id. at art. 91.

23 Hague Regulations, supra note 9, at art. 42.

24 Geneva Convention IV, supra note 6, at art. 2.

25 Decision on Delimitation, Eritrea-Ethiopia Boundary Commission, April 13, 2003, para. 3.8.

26 Id. at paras. 4.69 and 4.71.

27 Id. at para. 4.75.

28 Partial Award in Ethiopia's Claim 4, supra note 4, at para. 54; Partial Award in Eritrea's Claim 17, supra note 4, at para. 56.

29 Hague Regulations, supra note 9, at art. 25.

30 U.S. Dep't Of Army, Law Of Land Warfare (Field Manual No. 27-10,1956, rev. 1976), at para. 39(b) [hereinafter Field Manual].

31 See 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, supra note 12; Protocol II of 1980, supra note 13; Protocol II of 1980, as amended at Geneva, May 3, 1996, supra note 14; Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, supra note 15.

32 Protocol I, supra note 11, at art. 51.

33 Geneva Convention IV, supra note 6, at art. 51.

34 Field Manual, supra note 30, at para. 419.

35 Geneva Convention IV, supra note 6, at art. 53.

36 Various declarations implicate a Colonel Shifa in these and other events. Two hold him responsible for fifty abductions. Another accused Shifa and named subordinates of abducting people in the night, claiming that Shifa took him and others to a place where they were forced to work on a road and/or were severely beaten. Another alleged that officers under Col. Shifa's command committed rapes and were not punished.

37 In using the term “disappearance,” the Commission does not mean to imply that the missing individuals were killed while in custody. It received no evidence supporting such a finding. The Commission simply has no knowledge regarding the missing persons' whereabouts or fate.

38 Supra note 11. Article 57 provides in full: 1. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects. 2. With respect to attacks, the following precautions shall be taken: (a) those who plan or decide upon an attack shall: (i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them; (ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss or civilian life, injury to civilians and damage to civilian objects; (iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated; (b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated; (c) effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit. 3. When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects. 4. In the conduct of military operations at sea or in the air, each Party to the conflict shall, in conformity with its rights and duties under the rules of international law applicable in armed conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects. 5. No provision of this article may be construed as authorizing any attacks against the civilian population, civilians or civilian objects.

39 Corfu Channel (UK v. Alb.), Merits, 1949 I.C.J. REP. p. 4, at p. 18 (April 9).