96. As more fully described in the Commission’s Partial Awards on the Central Front Claims,34 Ethiopia carried out extensive attacks against Eritrea in May 2000. Ethiopian troops penetrated deep into Eritrean territory, displacing as many as 750,000 Eritrean civilians. The evidence indicates that these events were traumatic for the people and Government of Eritrea. There was an (p. 558) increase in previous levels of harassment and violence against Ethiopians and their property by Eritrean civilians. For the first time, large numbers of Ethiopians were forcibly detained, interned and then repatriated.
97. Against this background, the Commission will review Ethiopia’s claims for physical and mental abuse out of detention; for unlawful arrest, detention and internment; for unlawful detention conditions and abuse in detention; and for expulsion under improper conditions after May 2000.
98. Physical and Mental Abuse Out of Detention After May 2000. Both sides’ evidence showed an upsurge in harassment and attacks against Ethiopians by Eritrean civilians during this period. These were particularly frequent and intense after events such as Ethiopia’s May 2000 bombings of Massawa and of Asmara Airport. Eritrea acknowledged that there was increased hostility against the Ethiopian community at this time. It contended that many Ethiopians were taken into custody precisely to protect them from attacks by members of the civilian population.
99. The evidence does not demonstrate that the increased public animus against Ethiopians resulted from Eritrean government actions or policies. Accordingly, the question before the Commission is whether Eritrea met its obligation under Article 27 of Geneva Convention IV to ensure the humane treatment of Ethiopian civilians and their protection against insults and “all acts of violence or threats thereof.” The Commission recognizes that there were some efforts to protect Ethiopians during a very difficult period. Nevertheless, it concludes that Eritrea failed to take sufficient measures to ensure the safety and protection of Ethiopian nationals during this period, contrary to Article 27 of Geneva Convention IV.
100. Unlawful Arrest, Detention and Internment After May 2000. The evidence shows that several thousand Ethiopians were arrested and forcibly held in internment or detention camps after May 2000, with many more held in local detention facilities. The numbers were disputed. Ethiopia claimed that approximately 7,000 Ethiopians were so detained. The ICRC reported visiting smaller numbers of detainees, but its reports mention only certain camps by name, and it is not clear how many camps the ICRC was able to visit during this period. A U.S. State Department estimate cited about 10,000 to 20,000 Ethiopians in camps in Eritrea, including internally displaced persons, detainees and persons in assigned residence. The evidence regarding the pre-war population and departures during the war years suggests that the total remaining Ethiopian population in Eritrea in May 2000 was perhaps 80,000 to 90,000. Thus, while thousands of Ethiopians clearly were detained, the evidence does not show a generalized rounding-up of the entire Ethiopian population by Eritrea.
101. Eritrea maintained that its actions were justified under Article 42 of Geneva Convention IV, which allows internment or assigned residence “if the security of the Detaining Power makes it absolutely necessary.” It contended at the hearing that many Ethiopians were confined because their celebrations following Ethiopian victories or other conduct marked them as endangering security. Ethiopia acknowledged that a belligerent may intern nationals of an enemy State under appropriate safeguards, but contended that Eritrea arbitrarily and unlawfully rounded up these Ethiopian civilians without attempting to assess individuals’ potential threat to security.
102. Ethiopia’s declarations and claims forms indicated that many detainees were day laborers or other poor and uneducated persons not seeming to pose immediate threats to security. There was no evidence indicating that there was any process to identify individual Ethiopians potentially posing security risks. While the evidence is limited, it suggests that Ethiopians were hurriedly rounded up in some areas but not in others; the risk of detention seems to have been heavily Page Id: 558ReferencesGeneva Convention Relative to the Protection of Civilian Persons in Time of War 75 UNTS 287, 6 UST 3516, UNTS Reg No I-973Part III Status and Treatment of Protected Persons, Section II Aliens in the Territory of a Party to the Conflict, Art.42(p. 559) influenced by geography. Those detained included many from the port city of Massawa and from outlying areas in Eritrea; residents of Asmara and Assab appear to have been less affected. The evidence does not disclose any process, formal or informal, by which detainees could secure review of their status.
103. Eritrea also contended that some Ethiopians were held to protect them from hostile public opinion, allegedly inflamed by Ethiopians’ provocative celebrations following Ethiopian victories. Indeed, Eritrea contended that some Ethiopians asked to be taken into protective custody. There was little evidence supporting this contention, and the Commission doubts that many persons requested internment.
104. Taking into account the high standard for forcible internment indicated by Article 42 of Geneva Convention IV, the Commission believes that it was incumbent upon Eritrea to show some substantial basis for abruptly seizing and holding several thousand Ethiopians in detention, particularly as they were detained under harsh conditions. Eritrea failed to show that its mass detentions of Ethiopians during and after May 2000 satisfied the requirements of Article 42 of Geneva Convention IV as being “absolutely necessary” for its security.
105. Physical Conditions of Detention After May 2000. Eritrea acknowledged that Ethiopians detained during this period endured harsh conditions. The evidence showed that detention camps were hurriedly prepared, and many lacked even rudimentary shelter or sanitary facilities. Food and clean water often were scarce. Several camps were located in extremely hot desert areas, and unsheltered detainees suffered greatly from blistering summer heat.
106. Eritrea argued that these poor living conditions were the unavoidable result of the humanitarian crisis facing Eritrea at the time, when perhaps one-third of the Eritrean population was also displaced by Ethiopia’s military offensive. Eritrea contended that while the detainees’ conditions were poor, they were no worse than those endured by many internally displaced Eritreans. It contended that was the best Eritrea could do given its resources and the massive national emergency.
107. The Commission recognizes the great challenges Eritrea faced in May 2000, but it cannot accept them as a legal defense. Geneva Convention IV reflects minimum standards of humanitarian treatment that apply whenever protected persons are detained. Article 27 directs that all protected persons must be treated humanely at all times. Article 85 requires that internees be provided with quarters that protect them “as regards hygiene and health, and…against the rigours of the climate.” Article 89 requires adequate daily food rations and drinking water; Article 90 requires suitable clothing. The evidence shows that these requirements were not met. Eritrea did not ensure that detainees received humane treatment, including the minimum standards of food and accommodation required by international law.
108. Abuse in Detention After May 2000. Ethiopia alleged that the poor physical conditions in the detention camps were accompanied by wide-scale physical and psychological abuse of detainees. Eritrea acknowledged one serious shooting incident causing the death of several detainees at Wi’a camp (discussed below), but otherwise denied that conditions were as claimed by Ethiopia.
109. The evidence indicates that untrained and unqualified Eritrean personnel guarded the camps. Their lack of training and discipline contributed to widespread physical violence and other abuse against detainees. Ethiopia’s declarations and claims forms include frequent and consistent accounts, essentially unrebutted by Eritrea, of recurring beatings and other abuses by camp guards. Some abusive guards are identified by name in multiple claims forms or declarations. There are disturbing accounts of prisoners at Wi’a camp being tortured by being buried in (p. 560) pits in the hot sand, leading to severe burns and, in one case, possibly death. Several accounts by prisoners at Wi’a refer to beatings and other acts of cruelty inflicted by “Omar” or “Umar,” the head of the camp guard force implicated in the serious shooting incident discussed below. The Commission heard testimony from a prisoner held at Wi’a who described frequent brutal beatings and other forms of abuse he and other prisoners received. Several claims forms represented that conditions at Afabet, to which the prisoners from Wi’a were transferred after the shooting incident, were even worse than at Wi’a.
110. Given the extensive and essentially unrebutted evidence of widespread and brutal physical abuse in the camps, the Commission finds that Eritrea failed to meet its obligation under humanitarian law to ensure the physical protection and well-being of the protected persons it detained in May 2000 and thereafter. It thereby permitted acts of violence and abuse directed against detainees by camp guards.
111. The Killings at Wi’a Camp. There is clear and compelling evidence of a serious incident on July 11, 2000 at the Wi’a camp in which many detainees were killed and injured at the hands of untrained and undisciplined Eritrean guards. An outbreak of shooting by guards killed at least 15 prisoners and wounded at least 16 more.
112. Evidence submitted by both sides presented similar descriptions of these killings at Wi’a. Witnesses, including a witness wounded in the shooting who testified before the Commission, agreed that ICRC personnel visited the camp earlier in the day. There was evidence that the guards instructed the prisoners not to speak to the ICRC representatives, and that some guards changed clothes and mingled with the prisoners to discourage contact. After the ICRC left, the guards identified prisoners who they thought had spoken with the ICRC, and at least one prisoner was led off and beaten.
113. The witness accounts then diverge somewhat. Some allege that prisoners began to throw stones at the guards doing the beating. Others did not see stones being thrown, or denied that there was any significant disorder. However, the accounts generally agree that the commander of the guards, named “Omar” or “Umar,” appeared with his Kalashnikov assault rifle. He and other guards began to fire indiscriminately at the detainees, who fled or took shelter if they could. The firing continued for some time.
114. Accounts provided by both Parties’ witnesses suggest that the Eritrean commander of the camp, an immigration officer called “Wedi Keshi” by the detainees, intervened and was able after a time to halt the shooting. By the time it ended, at least 15 detainees were dead and at least 16 were wounded. Wounded detainees were loaded onto a truck and taken into Massawa for medical care. There were statements that some seriously wounded were left behind and shot, but this was not corroborated. Eritrea submitted evidence indicating that its authorities quickly initiated an investigation of the killings, and that the guard commander was subsequently removed from Wi’a. However, there is no evidence showing any other disciplinary action against anyone involved.
115. The Commission appreciates the candid and forthright way that counsel for Eritrea addressed the killings at Wi’a camp. The Commission notes that the Eritrean camp commander’s actions to halt the shooting probably limited the loss of life. Nevertheless, Eritrea had placed the guard commander and the guards in their positions of power over the detainees, and Eritrea is internationally responsible for their actions. The Commission finds that Eritrea is responsible for permitting conditions under which undisciplined camp guards used excessive and indiscriminate lethal force against protected persons, killing at least 15 and seriously injuring at least 16 more.
(p. 561) 116. Expulsion Under Inhumane Conditions After May 2000. The Parties agree that the number of Ethiopian departures greatly increased after the June 2000 Cease-Fire Agreement, but offered sharply conflicting explanations.
117. Ethiopia alleged that many departures resulted from unlawful direct government expulsion, and that the rest were the direct and inevitable result of deliberate and harsh government policies and actions intended to drive Ethiopians from Eritrea. Further, departures from Eritrea were said by Ethiopia often to involve harsh and dangerous physical conditions.
118. Eritrea painted a very different picture. In Eritrea’s view, the thousands of departures were the natural and benign by-product of the end of the war. The June 2000 Cease-Fire Agreement made it safer and easier for Ethiopians who wanted to return to Ethiopia to do so. As counsel portrayed it, “the buses were running” and conditions finally allowed the pent-up demand of thousands of Ethiopians who wanted to end years of wartime separation from homes and families to be met. Eritrea contended that these departures were voluntary, and denied any broad government policy aimed at encouraging or requiring Ethiopians to leave.
119. Legal Considerations Applicable to Departures After May 2000. Neither Party specifically addressed the scope of the powers of belligerents under international humanitarian law to expel the nationals of enemy States during an international armed conflict.35 The arguments concerning departures in the period after the June 2000 Cease-Fire Agreement emphasized factual and not legal matters.
120. Ethiopia acknowledged that States have broad powers to require aliens to leave their territory, but it contended that departures after May 2000 were unlawful because they did not result from a proper legal process and did not provide affected Ethiopians with proper respect and protection. Ethiopia contended that:
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• Many—particularly those who were forcibly detained and then left for Ethiopia directly from the detention camps, but including others as well—were arbitrarily expelled by direct government action. It cited the accounts of several Ethiopian declarants who claimed that Eritrean officials ordered them to leave Eritrea against their will.
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• All others who left were constructively expelled as the result of hostile conditions attributable to deliberate Eritrean Government actions and policies, and under conditions that denied them proper respect and protection. Ethiopia cited official actions allegedly aimed at making Ethiopians’ post-war conditions of life intolerable, including revoking business licenses and terminating tenancies in public housing. Counsel argued that such government actions and policies allowed “no real choice to remain behind,” and reflected Eritrea’s intention that Ethiopians leave.
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• The enormous size of the outflow from Eritrea demonstrated a deliberate mass expulsion by Eritrea, contrary to international law.
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• The process of expulsion was procedurally deficient because Ethiopians were not given any opportunity whatsoever to contest their expulsions.
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Page Id: 561ReferencesAgreement on Cessation of Hostilities between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea (Organization of African Unity (historical) [OAU]) 2138 UNTS 85, UN Reg No I-37273, UN Doc S/2000/601(p. 562) • Departing Ethiopians were illegally denied means to protect their property and interests. This claim will be discussed infra, in connection with Ethiopia’s claims relating to deprivation of property.
Eritrea denied these contentions.
121. In its separate Partial Award on Eritrea’s Civilians Claims, the Commission addresses the right of a belligerent under the jus in bello to expel the nationals of an enemy State during an international armed conflict.36 The evidence indicates that a very high proportion of the thousands of Ethiopians who were held in Eritrean detention camps, jails and prisons were expelled by Eritrea directly from their places of detention. The personal consequences of these enforced departures from Eritrea may have been harsh in many cases. Nevertheless, Eritrea acted consistently with its rights as a belligerent in compelling these departures and those of any other Ethiopians who were forced to leave during this period.
Source Id: law-9780199793723-div5-551ReferencesGeneva Convention Relative to the Protection of Civilian Persons in Time of War 75 UNTS 287, 6 UST 3516, UNTS Reg No I-973Part III Status and Treatment of Protected Persons, Section II Aliens in the Territory of a Party to the Conflict, Art.35
122. However, the conditions of all such expulsions must meet minimum humanitarian standards, as set forth in Articles 35 and 36 of Geneva Convention IV. Further, expellees were entitled to adequate opportunity to protect any property or economic interests they had in Eritrea. The Commission considers below questions relating to the physical conditions of protected persons’ departures and the treatment of their property.
123. The evidence does not establish that other Ethiopians who left Eritrea between June and December 2000 were expelled pursuant to actions or policies of the Government of Eritrea. While Eritrea had the right as a belligerent to require nationals of the enemy State to depart, the evidence does not establish that it took such action with respect to persons not held in detention.
124. The record did not include any decrees, directives or other documentary evidence indicating an Eritrean Government policy of forcing the departure of other Ethiopians who were properly registered with the immigration authorities. Likewise, the evidence did not show an unwritten policy of deliberate expulsion. Ethiopia cited the accounts of some Ethiopians who stated that Eritrean officials ordered them to leave, but the circumstances described are often ambiguous. Some of these same declarants apparently spent substantial periods arranging their affairs before acting on alleged orders to depart. Others let their exit visas expire and delayed Page Id: 562ReferencesGeneva Convention Relative to the Protection of Civilian Persons in Time of War 75 UNTS 287, 6 UST 3516, UNTS Reg No I-973Part III Status and Treatment of Protected Persons, Section II Aliens in the Territory of a Party to the Conflict, Art.35Part III Status and Treatment of Protected Persons, Section II Aliens in the Territory of a Party to the Conflict, Art.36(p. 563) getting new ones, without apparent adverse consequences. The U.S. State Department’s Human Rights Report concluded that most of those who left during 2000 did so voluntarily.
125. Further, a substantial population of Ethiopians remained in Eritrea following the departures in 2000 covered by these claims (although many more Ethiopians departed in 200137). It is difficult to reconcile this with the contention that Eritrea expelled large numbers of Ethiopians in the months following the June 2000 Cease-Fire Agreement. Ethiopia’s claim that large numbers of persons who were not in detention were wrongly expelled by direct State action by Eritrea after hostilities ended must fail for lack of proof.
126. Ethiopia also contended that those who left between May 2000 and December 2000 were victims of unlawful indirect or constructive expulsion. The Parties expressed broadly similar understanding of the law bearing on these claims. Both cited the jurisprudence of the Iran-U.S. Claims Tribunal, which establishes a high threshold for liability for constructive expulsion. That Tribunal’s constructive expulsion awards require that those who leave a country must have experienced dire or threatening conditions so extreme as to leave no realistic alternative to departure. These conditions must result from actions or policies of the host government, or be clearly attributable to that government. Finally, the government’s actions must have been taken with the intention of causing the aliens to depart.38
127. The evidence does not meet these tests. Post-war Eritrea was a difficult economic environment for Ethiopians and Eritreans both, but the Eritrean Government did not intentionally create generalized economic adversity in order to drive away Ethiopians. The Commission notes that the Government of Eritrea took actions in the summer of 2000 that were detrimental to many Ethiopians’ economic interests and that there was anti-Ethiopian public opinion and harassment. Nevertheless, many Ethiopians in Eritrea evidently saw alternatives to departure and elected to remain or to defer their departures. Given the totality of the record, the Commission concludes that the claim of wide-scale constructive expulsion does not meet the high legal threshold for proof of such a claim.
128. Physical conditions of repatriation. Ethiopia contended that expellees were forced to leave Eritrea in harsh and unsafe conditions, citing Article 36 of Geneva Convention IV, which requires that all voluntary departures from the territory of a belligerent “must be carried out in satisfactory conditions as regards safety, hygiene, sanitation and food.” Eritrea maintained that departure conditions were satisfactory, contending that departures generally were conducted with active ICRC involvement, and were as safe and comfortable as possible in the circumstances.
129. The ICRC publicly reported that it organized the safe return to Ethiopia of 12,000 Ethiopians during 2000. Eritrea presented numerous witness statements describing the ICRC’s role in arranging safe transports of Ethiopians, particularly from the immigration detention facility at Adi Abeyto. The record also indicates that Ethiopian prisoners directly expelled to Ethiopia from other Eritrean detention camps were physically transported by the ICRC or under its supervision. The witness accounts of released detainees typically express satisfaction with the ICRC’s role in their return to Ethiopia, not complaints.
131. The evidence indicates that the ICRC played a valuable role in ensuring that thousands of Ethiopians returned home safely, but Eritrea has not explained why the ICRC played no role in other departures which did not ensure safe and humane repatriations. The Commission finds that Eritrea failed to ensure safe and humane conditions in departures in which the ICRC did not play a role.
132. Claims for Property Losses. Article 35 of Geneva Convention IV requires that departees be allowed to take funds required for their journey and “a reasonable amount of their effects and articles of personal use.” Article 33 of Geneva Convention IV prohibits reprisals against the property of protected persons, and Article 23, paragraph (g), of the Hague Regulations39 forbids seizure of enemy property unless demanded by military necessity. These safeguards, of course, operate in the context of another broad and sometimes competing body of belligerent rights to deny the resources of enemy nationals to the enemy State.
133. The evidence showed that those Ethiopians expelled directly from Eritrean detention camps, jails and prisons after May 2000 did not receive any opportunity to collect portable personal property or otherwise arrange their affairs before being expelled. Accordingly, Eritrea is liable for those economic losses (suffered by Ethiopians directly expelled from detention camps, jails and prisons) that resulted from their lack of opportunity to take care of their property or arrange their affairs before being expelled.
134. The record also contained many complaints from other departing Ethiopians about the short time they were allowed to arrange their affairs, and even troubling instances of interference by Eritrean officials in their efforts to secure or dispose of property (addressed below). On balance, the record supports the conclusion that, under the necessarily disruptive circumstances, the departing Ethiopians who were not expelled had reasonable opportunity to arrange their affairs as best they could prior to departure. Claims for economic losses based solely on short notice for departure are dismissed.
135. The Commission, however, was struck by the cumulative evidence of the destitution of Ethiopians arriving from Eritrea, whether expelled directly from detention post-May 2000 or otherwise. Although this may be partially explained by the comparatively low-paying jobs held by many in the original Ethiopian community, the Commission finds it also reflected the frequent instances in which Eritrean officials wrongfully deprived departing Ethiopians of their property. The record contains many accounts of forcible evictions from homes that were thereafter sealed or looted, blocked bank accounts, forced closure of businesses followed by confiscation, and outright seizure of personal property by the police. The Commission finds Eritrea liable for economic losses suffered by Ethiopian departees that resulted from Eritrean officials’ wrongful seizure of their property and wrongful interference with their efforts to secure or dispose of their property.