Ethio Eritrean Conflict and 100 year old ICC

By Sivu Maqungo

The centennial celebrations of the ‘seat of international law’ – the Peace Palace in The Hague – are about the ideals this building stands for, rather than its beautiful architecture. The Peace Palace houses the International Court of Justice, the Permanent Court of Arbitration and the Hague Academy of International Law. These institutions continue to foster a culture of peaceful conflict resolution, and the two African cases that illustrate this are the dispute between Nigeria and Cameroon over Bakassi, on the one hand, and the conflict between Ethiopia and Eritrea over Badme, on the other. These two cases also exemplify the future of international justice in Africa, what is necessary to cement it and what can unhinge it.

On 14 May 1998, Eritrea, a country of just over 4 million people, launched an attack on Ethiopia, a country of over 80 million people, to seize a piece of land (Badme) administered by Ethiopia. Eritrea claimed sovereignty over Badme, charging that Ethiopia had no right to occupy the territory and was therefore violating its international border. The conflict lasted two years. After more than 100 000 lives were lost, Ethiopia still held Badme and had made inroads into uncontested Eritrean territory. The countries were cajoled into holding peace talks, which took place in Algeria, culminating in the Algiers accord. They agreed to submit their dispute to the Permanent Court of Arbitration, which duly established the Eritrea-Ethiopia Boundary Commission (EEBC) and the Eritrean-Ethiopia Claims Commission (EECC) to arbitrate the dispute and apportion financial liability respectively.

The EEBC faced complex legal and political challenges. Ethiopia has a long history of sovereignty, while Eritrea had been colonised by Italy, with several boundary agreements having been concluded between Ethiopia and Italy in 1900, 1902 and 1908. Both parties relied on these somewhat inconclusive Ethiopia-Italy boundary agreements for their claim to Badme. The EEBC had to interpret these agreements to decide on the rightful owner of Badme.

In addition, one of the parties had started the conflict and therefore could be held liable for the crime of aggression, but this was left to the EECC to decide. The EEBC was not allowed to take the political circumstances into account, namely that Ethiopia continued to occupy Badme only through great human sacrifice.

The EEBC duly ignored the political circumstances and concerned itself with the law, arriving at a decision that the legal interpretation of the Ethiopia-Italy boundary agreements gave the Badme territory to Eritrea. The EECC, on the other hand, held that the blame for starting the war lay with Eritrea and that Eritrea should thus compensate Ethiopia. The EECC also looked at various claims of breaches of international humanitarian law and held that both Ethiopia and Eritrea had committed breaches for which they should compensate each other.

Ethiopia first rejected the EEBC outcome and then later in principle agreed to it, but said that negotiations should be held in an effort to normalise relations as part of implementing the decision. Eritrea rebuffed Ethiopia’s offer of negotiating the implementation of the EEBC decision, arguing that linking the implementation of the EEBC decision to a process for normalising relations was contrary to the Algiers accord, which provided that the EEBC decision be final and binding.

The President of Eritrea, Isaias Afewerki, called on the international community to compel Ethiopia to implement the EEBC decision. Frustrated by the lack of results, he became contemptuous towards the United Nations (UN) and eventually forced the UN peacekeeping forces to withdraw from the disputed area. This left the matter without a UN mediator and no process for encouraging the implementation of the EEBC decision. To date a stalemate persists on the Ethiopia-Eritrea border, resulting in cross-border intrusions that create a lot of tension.

In the Nigeria vs. Cameroon case, Bakassi, a territory rich in fishing with suspected reserves of oil, is strategically very valuable. It is a peninsula in the Gulf of Guinea and was occupied by about 3 000 Nigerian troops, protecting about 300 000 Nigerian nationals who had made the territory their home for generations. Cameroon claimed sovereignty over Bakassi and almost went to war with Nigeria. However, sanity prevailed and the parties submitted their dispute to the other tenant of the Peace Palace, the International Court of Justice (ICJ), in March 1994. In 2002, the ICJ, using the colonial treaty of 1913 between Britain and Germany, decided that Bakassi belonged to Cameroon. This was a very bitter pill for Nigeria to swallow, while an increasing number of Bakassi inhabitants started calling for the self-determination of the Bakassi people.

The Nigerian senate sat to consider the judgment of the ICJ and voted to reject it. Years passed and fears grew that Cameroon would find it difficult to accept the injustice and humiliation of the judgment not being implemented. The UN stepped in under the leadership of then Secretary-General Kofi Annan and brokered an implementation plan (the Greentree agreement) between President Olusegun Obasanjo of Nigeria and President Paul Biya of Cameroon. This time, unlike in the Ethiopian-Eritrean scenario, the UN found leaders willing to negotiate. Obasanjo, facing considerable resistance from his senate, began the process of implementing the ICJ decision by withdrawing his troops in piecemeal fashion over a number of years, starting in 2006, eventually seeing the full handover of Bakassi to Cameroon in 2012.

These two case studies demonstrate that African leaders sometimes do recognise the value of peaceful dispute resolution and are using the institutions housed in the Peace Palace. However, submitting a case for resolution to any of the Peace Palace tenants is the easy part: the difficulty comes in implementing the decisions. The future of international justice in Africa hinges on this. Will African leaders muster the necessary political courage, as illustrated in the case of Nigeria vs. Cameroon, or succumb to brinkmanship, as in the case of Ethiopia vs. Eritrea?

As the world celebrates the centenary of the Peace Palace, we can draw comfort from the fact that there has been a rise in peaceful resolutions to conflicts, using institutions housed in the Peace Palace. Africa helped to establish the International Criminal Court (ICC), the African Union (AU) is in the process of setting up the African Court of Justice, and African regions such as the Southern African Development Community (SADC) have established regional courts.

Difficulties arise, however, when leaders must live up to the commitments made; an area in which Africa occasionally still stumbles, as demonstrated by the disbandment of the SADC tribunal, the AU’s coldness towards the ICC and the absence of a concerted effort to have Ethiopia and Eritrea work out the modalities of implementing the EEBC decision.

Africa, notwithstanding, is all the better for the establishment of the Peace Palace and should join the rest of the world in celebrating 100 years of this symbol of international justice.

Sivu Maqungo, Senior Research Consultant, Transnational Threats and International Crime Division, ISS Pretoria

About The Author