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The Eritrean-Ethiopian War of 1998-2000 was a tragic conflict that resulted in a widespread loss of life, as well as other injury and damage, for these two developing countries in the Horn of Africa. A unique feature of this incident is that the December 2000 Algiers agreement ending the conflict provided for the establishment of an Eritrea-Ethiopia Claims Commission (claims commission), charged with deciding claims for loss, damage or injury resulting from a violation of international law committed by either country. One of Ethiopia’s claims was that Eritrea initiated the armed conflict by an illegal use of force. Thus, the facts and legal positions advanced by the two sides were formally litigated before, and decided by, a five-member arbitral commission of arbitrators of third-country nationalities, which concluded that Eritrea’s conduct at the outbreak of the armed conflict constituted a violation of Article 2(4) of the UN Charter.

This chapter in a volume containing a series of case studies argues that the claims commission’s jus ad bellum findings are of considerable precedential value. The commission considered and addressed several important and complicated issues concerning law on the resort to force, self-defense, and reparation. Rarely have such claims been litigated and rarer still have decisions been issued on these matters. There are various aspects of the claims commission’s findings that can be questioned, if not criticized, but given the limited resources and time frame under which the commission operated, the commission performed extremely well.

The claims commission concluded that a large-scale, transborder military operation constituted a violation of Article 2(4) of the UN Charter, a finding that confirms conventional jus ad bellum doctrine. Further, the commission made important findings with respect to the law on self-defense, specifically that: (1) a State may not use armed force to seize disputed territory peacefully occupied by another State; (2) a State may not use armed force in response to geographically-limited clashes between patrols along an unmarked and disputed border; and (3) a State may not use armed force solely in reaction to another State’s declaration that it will act in self-defense. Finally, the commission analyzed the conditions under which reparation should be provided for a violation of the jus ad bellum, advancing a proximate cause standard as well as other standards when calculating compensation for various categories of harm.

The most limiting feature of the claims commission’s findings ultimately may be their parsimony; it is not easy to ascertain from the awards the scope and nature of the evidence upon which the commission’s conclusions were based, which in turn may cause difficulties for future tribunals that attempt to rely upon those conclusions with respect to entirely different fact patterns and evidentiary foundations.

GW Paper Series

GWU Law School Public Law Research Paper No. 2016-52; GWU Legal Studies Research Paper No. 2016-52

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