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RAPPORTEUR
26th Session: Commissioners Badawi and Johm
27th Session: Commissioners Badawi and Johm
26th Session: Commissioners Badawi and Johm
27th Session: Commissioners Badawi and Johm
28th Session: Commissioners Badawi and Johm
29th Session: Commissioners Badawi and Johm
30th Session: Commissioners Badawi and Johm
31st Session: Commissioner Johm
32nd Session: Commissioner Johm
33rd Session: Commissioner Johm
SUMMARY OF FACTS
1. The Complainant alleges that sometime in the second quarter of 1998 there
was an international armed conflict between Eritrea and Ethiopia that led to
the beginning of active hostilities between the two countries.
2. During this period it is alleged by the Complainant that thousands of
persons of Ethiopian nationality were expelled from Eritrea, either directly
or constructively by the creation of conditions in which they had no choice
other than to leave Eritrea. In particular, over 2,500 were forcibly
expelled and dumped at the border where there was ferocious fighting and
heavily infested with anti-personnel land mines.
3. It is also alleged that between June 1998 and July 1999, more than sixty
one thousand people of Eritrean ethnic descent who are legal residents or
citizens of Ethiopia were deported from Ethiopia. Most of these are urban
deportees.
4. The Complainant asserts that in both cases, thousands of persons of
Ethiopian origin and those of Eritrean origin were arrested and interned in
Eritrea and Ethiopia respectively under harsh conditions with no visitation
rights for their families, no food, clothing and toilet facilities for
extended periods of time.
5. The Complainant alleges that some Ethiopian women and young girls were
tortured and raped in the affected areas by Eritrean soldiers.
6. The Complainant also alleges that most of the deportees were subjected to
cruel, inhuman and degrading treatment. Furthermore, the governments of
Eritrea and Ethiopia arbitrarily deprived most of the deportees their
property.
7. Specifically in the case of those persons deported by the government of
Eritrea, some deportees were forced to work without salaries in exchange for
protection. Yet others were forced out of their rental accommodation,
suffering forcible eviction and homelessness as a result.
8. While in the case of those persons deported by the government of
Ethiopia, the deportees, prior to their deportation were required to
transfer their rights over their property in Ethiopia by a power of attorney
to a legal agent. In compliance with this, husbands often designated their
wives as their legal agents, only to find that their wives were given a
month or two to sell their properties and were then deported a week or two
after they were told to sell. In effect, the deportation was accompanied in
most cases by an expropriation of the property of the deportees. In some
cases some deportees also had their rental properties taken over. Some bank
accounts were frozen, and some savings books were destroyed, making it
impossible for the deportees or their designated agents to gain access to
such savings.
9. The Complainant claims that while effecting the said deportations,
parents and children were forcibly separated without any provision for the
care, feeding, and housing of the children. As at the time of submission of
the complaints, neither parents nor children can travel across the
Eritrean-Ethiopian border and even telephone communication is impractical.
COMPLAINT
10. The Complainant alleges violations of Articles 1, 2, 3, 4, 5, 6, 7 (1),
12 (1), (2), (4) and (5), 14, 15, 16 and 18(1) of the African Charter.
PROCEDURE
11. The complaint lodged by Interights against Eritrea and Ethiopia was
received at the Secretariat of the African Commission on 5th October1999.
12. At its 26th ordinary session held in Kigali, Rwanda, the African
Commission decided to be seized of communications 233/99 and 234/99 and
requested the Parties to furnish it with additional information on its
admissibility in accordance with Article 56 of the Charter.
13. On 17th January 2000, the Secretariat conveyed the above decision to the
parties and forwarded a copy of the summary of the communication and the
original text of the complaint together with the documents attached thereto.
14. On 30th April 2000, during the 27th ordinary session of the African
Commission, the Allard K. Lowenstein International Human Rights Law Clinic
at the Yale Law School in the United States submitted an amicus curiae brief
to the African Commission on the complaint brought against Ethiopia.
15. At its 27th ordinary session held in Algeria, the African Commission
heard the representatives of the parties on the admissibility of the case.
It declared both communications admissible and requested parties to submit
their arguments on the merits. The various parties were informed accordingly
of the decision of the African Commission.
16. At its 28th ordinary session held in Cotonou, Benin, the African
Commission heard both parties.
17. At its 29th ordinary session held in Libya, the African Commission heard
both parties and decided to consolidate Communications 233/99 and 234/99.
The African Commission deferred consideration both communications on the
merits to the 30th Ordinary Session and invited parties to the communication
233/99 and 234/99 to submit arguments for the purpose of clarifications in
terms of Rule 104 of the Rules of Procedure of the African Commission:
a. On the desirability or otherwise of considering the communications under
the provisions of Articles 47-54 of the African Charter on Human and
People's Rights on communications between States and to follow the procedure
laid down there-under;
b. On the extent to which matters covered by the complaint are the subject
of the Peace Agreement between the Government of Democratic Federal Republic
of Ethiopia and the Government of State of Eritrea signed in Algiers on 12th
December 2000, including the mechanism for the consideration of claims by
individuals in either State whose citizenship may be in dispute [Article
5(8)];
And in the alternative:
c. Indicate the relevance or otherwise of Article 56(7); and
d. Whether a final decision on the merits at this stage will have an impact
and what effect, if any, that would have on the peace process between the
two countries.
18. On 18th June 2001 both parties were informed of the African Commission's
decision and were invited to forward their submissions on the abovementioned
questions.
19. At its 30th ordinary session held in The Gambia, the African Commission
heard oral submissions from all the parties and decided as follows:
(a) The Governments of the Federal Democratic Republic of Ethiopia and the
State of Eritrea should submit claims relating to the abovementioned
communication to the Claims Commission.
(b) That any correspondence relating to communication 233/99 and 234/99 made
to the Claims Commission should be copied and forwarded to the African
Commission.
(c) To postpone further consideration on the merits of communication 233/99
and 234/99 to the 31st Ordinary Session to ascertain whether matters covered
by the communication are also covered by and have been submitted to the
Claims Commission.
20. On 24th October 2001 the parties were informed of the decision of the
African Commission.
21. During the 31st ordinary session of the African Commission, Eritrea
submitted a letter from the President of the Claims Commission. In that
letter the President of the Claims Commission states to the effect that,
Eritrea and Ethiopia can provide the African Commission with copies of their
statements of claim or other appropriate information relating to the Claims
Commission if required by the African Commission.
22. At its 31st ordinary session, the African Commission heard oral
submissions from all the parties to the communication and decided to defer
consideration of the matter to the 32nd session in order to allow the
Complainants time to forward their written responses to the written
submissions of Ethiopia.
23. On 7th June 2002, all the parties to the abovementioned communication
were informed of the African Commission’s decision. Interights was requested
to forward its written response to the Secretariat of the African Commission
within 2 months from the date of notification.
24. On 30th July 2002, Interights was reminded that the Secretariat was
awaiting to receive their written submissions on or before the 7th August
2002. There has been no response from Interights thus far.
25. At its 32nd ordinary session, the African Commission heard oral
submissions from the State of Eritrea and decided to defer consideration of
this communication to the 33rd ordinary session. Parties to the
communication were informed accordingly.
26. At its 33rd Ordinary Session, held from 15th to 29th May 2003, in Niamey
Niger, the African Commission decided to suspend consideration of these
communications sine die.
LAW
ADMISSIBILITY
27. The admissibility of communications brought pursuant to Article 55 of
the Charter is governed by the conditions stipulated in Article 56 of the
Charter. This Article lays down seven (7) conditions, which generally must
be fulfilled by a Complainant for a communication to be declared admissible.
28. Of the seven conditions, the government of Ethiopia claims that the
Complainants have not fulfilled three; namely: Article 56(1), (5) and (7).
Additionally, it questions the neutrality, credibility and integrity of the
NGOs submitting the communication.
29. The State of Eritrea on its part claims that the Complainants have not
fulfilled two conditions, namely: Article 56(6) and (7).
30. Article 56(1) of the African Charter stipulates:
"Communications relating to human and peoples rights referred to in Article
55 ….. shall be considered if they:
Indicate their authors even if the latter request anonymity"
31. The government of Ethiopia submits that the Complainants being NGOs are
expected to provide the names of their representatives, and since they
failed to do so in their letter of August 1999 the African Commission should
reject the communication.
32. Furthermore, the government of Ethiopia questions the neutrality,
credibility and integrity of the NGOs submitting the communications. This,
the government alleges is evidenced by the superficial treatment given by
the Complainant NGOs to the plight of thousands of Ethiopians suffering in
the hands of the Eritrean government whereas with respect to Eritrea, they
submitted a detailed verbatim report. Ethiopia thus claims that the
submission on Ethiopia is only an attempt by the Complainant to give it a
semblance of credibility.
33. The African Commission is of the view that in terms of Article 56(1) of
the African Charter, it is enough if the said complaint bears, as in this
case, the name of one of the Organisation's representatives. Thus the
present complaint cannot be declared inadmissible on the basis of Article
56(1).
34. With respect to the question of the neutrality, credibility and
integrity of the NGOs submitting the communication, the African Commission
does not consider this issue as one that falls within the requirement for
the admissibility of the communication as stipulated under Article 56 of the
Charter. In any case, the evidence before the African Commission does not
lead it to uphold the submission of the government of Ethiopia on the
credibility, neutrality and integrity of the NGOs particularly Interights
which effectively became the Complainant.
35. Article 56(5) of the African Charter stipulates:
"Communications relating to human and peoples rights referred to in Article
55 ….. shall be considered if they:
(5) Are sent after exhausting local remedies, if any unless it is obvious
that this procedure is unduly prolonged"
36. Regarding the issue of exhaustion of local remedies, the government of
Ethiopia submits that the Complainants have not availed themselves of the
remedies available at the local courts before approaching the African
Commission.
37. The Complainant asserts, and the African Commission is of the opinion
that there were no domestic remedies available to the Complainants, as a
practical matter in this case. In coming to this decision the African
Commission relies on its decision on the issue in Communication 71/92
Recontre Africaine Pour la Defense des Droits de l'Homme/Zambia a case that
involved mass deportation and transfer of multiple victims. In this case the
African Commission observed that
“The mass nature of the arrests, the fact that victims were kept in
detention prior to their expulsion, and the speed with which the expulsions
were carried out gave the Complainants no opportunity to establish the
legality of these actions in the courts. For Complainants to contact their
families, much less attorneys was not possible. Thus the recourse referred
to by the government, … was, as a practical matter, not available to the
Complainants."
38. The government of Eritrea alleges that the Complainant has not fulfilled
the conditions stipulated under Article 56(6) of the African Charter.
Article 56(6) of the African Charter reads:
"Communications relating to human and peoples rights referred to in Article
55... shall be considered if they:
(6) are submitted within a reasonable period from the time local remedies
are exhausted or from the time local remedies are exhausted or from the date
the commission is seized with the matter"
39. The African Commission is of the view that bearing in mind its decision
in relation to Article 56(5), compliance with the provisions of Article
56(6) of the African Charter by the Complainant is rendered inapplicable.
40. Both the governments of Eritrea and Ethiopia also raise an objection to
the African Commission admitting the communications stating that the
Complainants did not comply with the provisions of Article 56(7) of the
African Charter.
41. At its 27th ordinary session held in Algeria, after hearing the
representatives of the parties on the admissibility of the case, the African
Commission decided to declare both communications admissible.
42. It is to be recalled that at its 29th ordinary session held in Libya,
the African Commission heard oral submissions from all the parties and
decided to consolidate Communications 233/99 and 234/99. The African
Commission also postponed further consideration on the merits of the case to
the 30th Ordinary Session and invited parties to the communication 233/99
and 234/99 to submit arguments for the purpose of clarifications in terms of
Rule 104 of the Rules of Procedure of the African Commission.
CLARIFICATIONS SOUGHT BY THE AFRICAN COMMISSION IN TERMS OF RULE 104 OF THE
RULES OF PROCEDURE OF THE AFRICAN COMMISSION
THE DESIRABILITY OR OTHERWISE OF CONSIDERING THE COMMUNICATIONS UNDER
ARTICLES 47-54 OF THE AFRICAN CHARTER
43. The Respondent States argue that it is undesirable that the
communications before the African Commission be converted into
State-to-State proceedings. The government of Ethiopia takes this position
because the two countries, Ethiopia and Eritrea have already negotiated and
signed a Peace Agreement with regard to the conflict that gave rise to the
human rights violations that were committed by the respective States.
Therefore the African Commission should discontinue considering the
complaints before it and let the Ethio-Eritrean Claims Commission handle the
matters raised within the complaints.
44. The communications presently before the African Commission are governed
by Articles 55-57 of the Charter, a category of cases clearly distinct from
complaints governed by Articles 47-54 of the Charter. The provisions of the
African Charter and the rules of procedure do not provide for any procedure
to convert non-State communications into inter-state communications. The
initiation of an inter-state complaint is dependent on the voluntary
exercise of the sovereign will of a State party to the Charter, which
decision can only be made by States in accordance with the Charter. From the
submissions of the Respondent States, the African Commission comes to the
conclusion that Ethiopia and Eritrea do not wish to initiate an inter-state
complaint before the African Commission; furthermore they believe that the
complaint against them that is before the African Commission should be
dismissed as they believe that the Ethio-Eritrean Claims Commission would be
better suited to handle the matters raised in those complaints. The African
Commission cannot and will therefore not consider the communication under
Articles 47-54, a procedure relating to the consideration of inter-state
communications.
THE EXTENT TO WHICH MATTERS COVERED BY THE COMPLAINTS ARE THE SUBJECT OF THE
PEACE AGREEMENT BETWEEN THE GOVERNMENTS ETHIOPIA AND ERITREA SIGNED ON 12TH
DECEMBER 2000, INCLUDING THE MECHANISM FOR THE CONSIDERATION OF CLAIMS BY
INDIVIDUALS IN EITHER STATE WHOSE CITIZENSHIP MAY BE IN DISPUTE (ARTICLE
5(8))
45. The matters raised by the Complainants before the African Commission
relate to abuse of human rights of people in violation of the provisions of
the African Charter by the governments of Ethiopia and Eritrea during the
period of the Ethio-Eritrean Conflict.
46. Article 5(1) of the Peace Agreement between the Respondent States
establishes a Claims Commission and further spells out its mandate. Article
5(1) of the Peace Agreement provides:
Consistent with the Framework Agreement, in which the parties commit
themselves to addressing the negative socio-economic impact of the crisis on
the civilian population, including the impact on those persons who have been
deported, a neutral Claims Commission shall be established. The mandate of
the Commission is to decide through binding arbitration, all claims for
loss, damage or injury by one Government against the other, and by nationals
(including both neutral and juridical persons) of one party against the
Government of the other party or entities owned or controlled by the other
party that are:
(d) related to the conflict that was the subject of the Framework Agreement,
the Modalities for its Implementation or, Cessation of Hostilities
Agreement, and
(e) result from violations of international humanitarian law, including the
1949 Geneva Conventions, or other violations of international law.
47. The mechanism for the considering claims brought by Ethiopia and Eritrea
is governed by Article 5(8) of the Peace Agreement which provides:
(8) Claims shall be submitted to the Commission by each of the parties on
its own behalf and on behalf of its nationals, including both natural and
juridical persons. All claims submitted to the Commission shall be filed no
later than one year from the effective date of this agreement. Except for
claims submitted to another mutually agreed settlement mechanism in
accordance with paragraph 16 or filed in another forum prior to the
effective date of this agreement, the Commission shall be the sole forum for
adjudicating claims described in paragraph 1 or filed under paragraph 9 of
this Article, and any such claims which could have been and were not
submitted by that deadline shall be extinguished, in accordance with
international law.
48. As part of their submissions on the clarification sought by the African
Commission, the government of Ethiopia forwarded documents relating to the
Claims Commission's hearings that were held from 1st to 2nd July 2001.
During the hearings, the Claims Commission addressed itself to the nature of
the claims that the governments of Ethiopia and Eritrea will place before
it. The Claims Commission was of the view that its jurisdiction under
Article 5(1) includes two basic types of claims. The Parties may file
traditional Inter-State claims under the principles of the law of State
Responsibility for injury to the Claimant State. These may include claims
for injuries to the State occurring by reason of injuries to its nationals
in violation of international law. Or, the Parties may choose to file the
claims of individual nationals that fall within the scope of Article 5(1).
The Claims Commission is open to either approach, or to a combination of
them, so long as no duplicate compensation for the same injury results.
49. At the 31st session of the African Commission, both the Respondent
States asserted that they had filed with the Claims Commission, all the
matters covered by communication 233/99 and 234/99.
50. The government of Eritrea contended that it made claims for violations
of the rights of Eritrean citizens and/or Ethiopian citizens of Eritrean
ethnic origin and that these claims also constitute allegations of
violations of the African Charter and of international law (Statements of
Claims Nos. 15, 16, 17, 19 and 21). The claims include the internment
without trial of civilians because of their membership in political
organisations or for reasons of their ethnicity or national origin. The
government of Eritrea stated that it made claims on behalf of persons of
Eritrean citizenship and/or Eritrean national origin for:
(f) The illegal internment of civilians in concentration camps without
formal accusation or trial;
(g) The physical maltreatment and torture of such individuals;
(h) The discriminatory dismissals from employment, evictions from rental
property, and seizure of property from persons of Eritrean national origin
who are still present in Ethiopia.
51. The government of Ethiopia also argues that the allegations presented in
this communication have been submitted to the Claims Commission. They state
that in their Statement of Claim No. 5 that they submitted before the Claims
Commission, they made claims for the unlawful treatment of Ethiopian
nationals living in Eritrea, including arbitrary detention, mass internment,
torture, abuse, murder, forced disappearances, forced conscription into the
military, confiscation of property and systematic rape of Ethiopian women.
The Statement of Claim also includes factual representations relating to the
Eritrean government’s policy of discrimination against Ethiopians in
Eritrea, including arbitrary dismissal of Ethiopian nationals from public
and private employment in Eritrea; Eritrea’s unlawful restrictions on the
freedom of movement, including exit from Eritrea and forceful expulsion of
Ethiopians and unlawful and inhuman conditions during the expulsion of
Ethiopian nationals from Eritrea.
THE RELEVANCE OR OTHERWISE OF ARTICLE 56(7) OF THE AFRICAN CHARTER
52. Article 56(7) of the African Charter provides:
"Communication relating to human and peoples' rights referred to in Article
55 received by the Commission, shall be considered if they:
(7) do not deal with cases which have been settled by these States involved
in accordance with the principles of the Charter of the United Nations, or
the Charter of the Organisation of African Unity or the provisions of the
present Charter.”
53. Article 56(7) of the Charter precludes the African Commission from
considering cases that have been settled by States in accordance with the
principles of the Charter of the United Nations, or the Charter of the
Organisation of African Unity or the provisions of the present Charter.
54. The Complainant refers the African Commission to its decision in
Communication 59/91, Emgba Mekongo Louis/Cameroon, where it held that
mediation by political institutions such as the European Union was
irrelevant to Article 56(7) of the Charter. Interights thus submits that
this holding applies with equal force to the political organs of the OAU.
55. The Claims Commission created by a Peace Agreement should not be viewed
as a political organ of the OAU; rather it is a body that has been
established under a Peace Agreement and which, under Article 5(13), is bound
to apply rules of international law and cannot make decisions ex aequo et
bono. Indeed the Claims Commission has ruled that in dealing with evidence,
they must apply evidentiary rules that prove or disprove disputed facts (See
decision number 4 of the Claims Commission). The Claims Commission therefore
has the capacity, unlike the African Commission to deal with complex matters
such as the citizenship status of the individuals, what amount of
compensation shall be awarded and to whom, in respect of the violations that
they have suffered. Such was the complexity that the African Commission was
faced with in Emgba Mekongo Louis/Cameroon (supra) where it found a
violation of Mekongo's rights but stated "that it was unable to determine
their amount and the quantum should be determined under the law of
Cameroon".
56. In Communication 60/91, Constitutional Rights Project/Nigeria, the
African Commission held that it would not rely on the process or mechanism
of a "discretionary, extra-ordinary … non-judicial nature" or that "have no
obligation to decide according to legal principles" to preclude the
admissibility of a communication under Article 56(7) of the African Charter.
The African Commission would say that this is clearly not the case with
regard to the Claims Commission as has been demonstrated by Article 5(13) of
the Peace Agreement that provides that it is bound to apply rules of
international law and cannot make decisions ex aequo et bono. This therefore
puts the Claims Commission under those bodies envisaged under Article 56(7).
57. From the submissions of the Respondent States, it seems to the African
Commission, that the matters brought before it, are matters that have been
placed before the Claims Commission which can therefore adequately deal with
such matters.
58. At the 31st Ordinary Session, the Complainants requested the African
Commission to defer consideration of these communications to the 32nd
ordinary session to enable them submit written responses to the Respondent
States’ submissions. The African Commission granted the request and informed
the parties accordingly. The Secretariat of the African Commission has
written to the Complainants asking them to forward the stated written
responses but there has been no reaction from them.
59. In principle the appropriate remedy of those claims submitted to the
Claims Commission should be monetary compensation. However, it is also
within the Claims Commission’s mandate to provide other types of remedies
that are acceptable within international practice. It is probable that the
African Commission will reach a decision finding the Respondent States in
violation of the rights of the individuals on whose behalf Interights is
acting. However, as was the case in Emgba Mekongo Louis/Cameroon (Supra),
the African Commission would certainly be constrained in awarding
compensation and may have to refer this matter to the Claims Commission and
at which point the matter would certainly be time barred.
60. While the African Commission would have opted to proceed and deal with
the instant communications, the Respondent States Parties have assured the
African Commission that all the issues before the African Commission will be
brought before the Claims Commission.
61. For these reasons, the African Commission decides as follows:
• To suspend consideration of communication 233/99 and 234/99 sine die, and
await the decision of the Claims Commission with regard to matters contained
in this communication;
• That the Respondent States keep the African Commission regularly informed
of the process before the Claims Commission with particular reference to the
matters contained in these communications;
• The Republic of Ethiopia and the State of Eritrea are requested to
transmit a copy of the text of the decision of the Claims Commission to the
Secretariat of the African Commission as soon as it is delivered;
• In the event that the Claims Commission does not fully address the human
rights violations contained herein, to reopen the matter for consideration;
• Reserves its decision on the merits of these communications.
Done at the 33rdOrdinary Session held in Niamey, Niger from 15th to 29th May
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