Miscarriage of Justice in Algiers = Miscarriage of Justice in The Hague
By: Tseggai Mebrahtu
4.69 The qualification as to the northern sections relates to Tsorono. In its reply, Ethiopia stated that a number of specific places mentioned by Eritrea as the location of incidents on which Eritrea was relying were irrelevant, since they were in any event in Eritrea. The words used by Ethiopia was were that " Fort Cardona, Monoxeito, Guna Guna and Tsorona "were" mostly...undisputed Eritrean places". While Monoxeito and Guna Guna are on the Eritrean side of the Treaty line as determined by the Commission, the Commission finds that, on the basis of the evidence before it Tsorona and Cardona are not.4.70 . As to Tsorona , the Commission cannot fail to give effect to Ethiopia's statement, made formally in a written pleading submitted to the Commission. It is an admission of which the Commission must take full account. It is necessary, therefore, to adjust the Treaty the line as to ensure that it is placed in Eritrean territory.
4.71 The qualification as to the southern section relates to the Acran region and Fort Cadrona. The Commission is satisfied that in terms of administrative range, quantity, area and period, to justify treating the Acran region as part of Eritrea. As regards Fort Cardona, the Commission is bound to apply to that place, in the same way as it does to Tsorona, the Ethiopian admission.
Chapter VI ( Eastern Sector)
".... The meaning of the "coast"
6.19 The first question that arises in the application of Article 1 of the Treaty is the definition of the coast. Ethiopia abandoned its conception of the coast as including islands and submitted in its concluding argument that the coastline should be understood as "adhering continuously to the continent itself, and not any coastline of islands as such". This was also the position presented by Eritrea. As the parties are in agreement on this point, the Commission will take as the coastline in the line adhering to the continent itself, and not any coastline of islands...
excerpt from the Hague based Border Commission decision
"...it is our country that provided the basic form and content to the implementation of the Algiers Agreement. And it is our country that facilitated the conditions for the creation of the Boundary commission, and the successful completion of its mandate. Ethiopia strongly believes that the Commissions accomplishment of its mandate and the rendering of its decision is a demonstration that peace prevails over war, and law over disorder. Ethiopia believes that this is the most decisive victory that it has won with regard to the Ethiopian-Eritrean boundary line...The government of Ethiopia would like to take this opportunity to extend its regards to the Boundary Commission for discharging its duties with a sense of responsibility and great care."
Excerpt from statement issued by the Councils of Ministers of the Ethiopian government regarding the decision of the Border Commission.
INTRODUCTION
Ethiopia has been in a national mourning since the conclusion of the Algiers Agreement. Despite the importance some fellow countrymen might have attached to April 13th, the decision of the border Commission is the implementation the injustice committed against Ethiopia in Algiers. Why should then we consider April the 13th as auguring well for peace; there is nothing Ethiopia has gained. She has been obliged to cede what is rightfully hers. Eritrea has taken all our territories and maritime outlet thanks to EPRDF. Consequently, members of our national community are to be displaced from their ancestral homes. Families are to be divided. They have no place to go. They have no means to live on. They have no shelter. What European colonialists did to Africans in the 19th century is now being perpetrated against Ethiopians. Irob Ethiopians resisted fiercely against Italian colonialists attempt to separate them from their mother Ethiopia. Now people with Italian colonialist mentality supported by the UN have succeeded in doing what Italians were unable to do. Is this peace? It is a war with or without bullets depending on the reaction of our people to the ordeal meted out to them by their enemies. The crime to deprive Irob Ethiopians and others of their right to live in their ancestral homes is a crime against the whole Ethiopian people for as some one has rightly said all Ethiopians are Irob when it comes to Ethiopian sovereignty and national pride. Those individuals who say that peace can finally be achieved are either below standard Ethiopians indifferent to the unenviable fate of Ethiopians or are with hidden anti Ethiopia motives. Because what these people consider to be peace is the beginning of a long suffering for the population living in the border areas. To our dismay, this unprecedented crime against our people has got the blessing of the UN, a world organisation purportedly entrusted with ensuring peace. But when it comes to Ethiopia, the practice of the UN fits squarely into the practice its predecessor, the League of Nations. Is it not waging a war to give one's blessing to the displacement of people from their ancestral homes? Can there exist a right which overrides the right of our people to continue to live on their ancestral homes without being disturbed? I agree entirely with those Ethiopians who have pertinently qualified April the 13th as a day of infamy. While this is the fact, it is very surprising to hear some people speaking about the "victory" of getting Zala'Ambassa as if this EPLF destroyed historic town of ours has not been an integral part of our country since its existence as nation, as if tens of thousands of our fellow Ethiopians have not paid their life to liberate it from the occupation of an inhuman army of destruction. To say that "Ethiopia has gained some thing although she is the greatest loser" is to lose sight of what the word "gain" means and to be oblivious to the loss of Ethiopian sovereign right and to the sacrifice of tens of thousands of our heroes.
It is therefore essential not to be lulled by the seemingly learned commentary of some intellectual prostitutes who are ready to be at the service of falsehood in exchange of advancement of career. These are people who live for their belly with no principle, no sentiment of ethiopiawinet. They don't even bother about the fate of their children tomorrow. If history were to go by, they could learn from yesterday's experience. But, like the animal in Ethiopian tradition, their life is guided by "after me the heavens can fall" . We should therefore be able to see through their snare to tranquillise us to accept long ordeal. We should not forget that what happens today to our compatriots can happen to each of us. What is more, we let ourselves humbugged as to consider the border commission's decision in terms of gaining or losing something, then we are giving a legitimacy to the anti Ethiopia Algiers Agreement. The only significance of the political decision of the border commission is that it has shown in an unambiguous manner what every body has known since a long time ago, viz, the very well orchestrated international conspiracy to reward Eritrea at the expense of Ethiopia.
In this regard, there are in fact some issues of importance which I would like to raise because they show in no uncertain terms the international conspiracy to destroy us. These issues are related to professional ethics of the members of the Commission and the EPRDF hired attorneys. It is true that all the members of the Commission and the advocates of EPRDF are internationally renowned jurists and some of us have used their books and articles in our study of international law. Because of our prior knowledge of their scientific works, we were inclined to believe in their integrity and expected that they would work for the supremacy of legality although the deliberate narrowing of their terms of reference by the illegal Algiers agreement has led to an unprecedented miscarriage of justice. However, to our dismay as Ethiopians and as jurists, the learned men have neither lived up to our very limited expectations nor to internationally recognised legal deontology. As a result of EPRDF's betrayal and the professional fault committed by the members of the commission and EPRDF hired attorneys, Ethiopia has now been declared the great loser in the "juridical battlefield" just as the signing of the Algiers Agreement had sanctioned its diplomatic humiliation.
ETHIOPIA - VICTIM OF ANOTHER BETRAYAL
The particularity of the Ethiopia-Eritrea case is that it is not only our nation which has been victimised by EPRDF's conspiratorial policy and the Border commission's politically motivated decision. International rule of law is also a great loser. It is precisely because of this travesty of justice that we have entitled our article miscarriage of justice. In this respect, it is essential to know that the travesty of justice in The Hague is not an isolated incident. It is the corollary of the political reality in Ethiopia. Namely, the absence of rule of law. If Ethiopians were to have the power to stop the regime from auctioning away their territories and their maritime outlet, then not only the Algiers Agreement would not have been ratified but also the prime minister and his government would have been impeached for being a menace for the territorial integrity and the sovereignty of our country. However banking on its repressive machinery and true to its policy of "after us the heavens can fall", the government has imperiously decided to present our territories as a gift to Eritrea. And the reason why this shunt of ethiopicide is being presented barefacedly as a "victory of rule of law both in international and internal politics" is because of the reign of autocracy and utter contempt of Ethiopians.Rule of law à la EPRDF
Since the EPRDF colonisation of the Ethiopian state power in 1991, its politico-juridical dictionary has incorporated many jabberwockies such as Bonapartism, rentier class, revolutionary democracy, revolutionary rule of law, hegemony of revolutionary democracy, revolutionary market economy et cetera. However surprising this may be, no EPRDF member, except the Prime Minister is really capable of decrypting such abracadabra save parroting the former. One can argue that the EPRDF leader coined such gibberish to impress his followers after the fashion of all former revolutionaries. It is possible that the prime minister can be intelligent although this may mean different things. The proof is that he has realised from the outset that monopoly of knowledge means having unquestionable ascendancy and power over members of his political organisation whose door has always been closed to critical thinking intellectuals. This explains perhaps why the whole EPRDF is tied to the Prime Minister's apron strings. What is more, the parade of knowledge and oratorical skill can also help to cover ones real political intentions and to offset fundamental defects which militate against one being a national leader material. Behind this exists therefore a strategy which aims to confuse people by provoking a false lexical debate while the real political and economic issues of the country are deliberately evaded. This is why there has never been political pluralism. Despite this, the EPRDF considers its complete monopolisation of state power through the policy of ethnic divide and conquer policy as proof of the reign of revolutionary democracy in Ethiopia. Not only that. The illegal secession of Eritrea and the land locked status of Ethiopia have also been considered as the advent of revolutionary democracy in Ethiopia. Now, the illegal cession of Ethiopian territories for the sake Eritrea's territorial aggrandisement is being presented as the triumph of democracy and rule of law in favour of Ethiopia. The restriction of the development of a culture of private entrepreneurialism which is the only way to bail Ethiopia out of its present economic quagmire and political decay is justified as enabling to prevent the exploitation of man by man. Planned poverty seems to be the fate meted out to Ethiopia. As a result, the EPRDF's conception of democracy and rule of law have been Greek to Ethiopians and to those who observe the messy political situation which obtains in our nation.Why does the EPRDF tell us that we have won when we have been the victims of its betrayal and international collusion? Why does the EPRDF say that the Border Commission's pro-Eritrea decision ushers in an era of peace and economic development whereas there is no doubt that it is a time bomb ready to explode when the occasion presents itself?
There is a lack of communication between Ethiopians and their current masters. We need a government which can speak and understand our language. Because what the EPRDF politico-juridical dictionary defines as rule of law, our dictionary defines it as reign of jungle law. Its democracy is a violation of our fundamental individual and group rights. Its self determination is the balkanisation and disintegration of our beloved ancient nation .Its peace is our humiliation and oppression. Its "democratic unity" is the reign of ethnic divide and conquer policy and the spread of distrust and hatred among members of our national community. Its economic policy is the aggravation of our living conditions. There has never been any political communication between Ethiopian masters and our people who have been reduced to a status of political minority. We have never seen any political output in response to a public demand. This is principally because the regime banks on gun than on popular support and free dialogue. Its boundless partiality for Eritrea and its insensitivity to the suffering of our people are the greatest stumbling blocks against it becoming a real Ethiopian political organisation.
This is the darkest period in our history. We believe therefore and there is no doubt as to the absolute correctness of our position that the Algiers Agreement is the clearest manifestation of the triumph of falsehood over truth, injustice over justice, authoritarianism over accountability; treason over patriotism. The so-called arbitration award is also a miscarriage of justice because both EPRDF hired attorneys and the members of the border commission have chosen to be instruments of injustice rather than standing by justice.
THE PARTIALITY OF THE BORDER COMMISSION
Some of us had the premonition as to the partiality of the Commission towards Eritrea. The political nature of the decision has proved what we feared. We will not have time and place to comment the decision seriatim. We will concentrate on the above cited excerpt from the Commissions decision to substantiate our argument that the decision a travesty of justice. Our argument is based on the principle that the binding nature of an arbitration decision is a function of the award being rendered in accordance with the relevant validly applicable law. The Commission has pretended to have based its decision on null and void treaties of 1900, 1902 and of 1908. Our first question is: do the members of commission who are specialists of international law believe sincerely that the null and void treaties are part of international law? If the answer is affirmative, on what basis? Of course, they can say that they have not the right to raise such issues. My question is: shouldn't have they refused, for the sake of supremacy of the law, to be members of a commission expected to render an award on the basis of illegally exhumed colonial treaties which cannot form part of international law? If their answer is that their role was limited to applying the "treaties" and not to work for the supremacy of law, why did they have recourse to rules concerning the interpretation of treaties? General rules of treaty interpretation can be applied only when the treaty in question is a valid treaty? Colonial treaties which served to Italy as a title deed, which were imposed on Ethiopia by force, treaties which Italy had never respected and which it had never had the intention of respecting, treaties which were long dead cannot be considered as valid treaties, neither is it proper to apply to them normal rules of international law as if they were valid treaties. While the commissioners are perfectly aware of this, why did they decide to have recourse to such notions as contemporaneity, actions of the state pursued à titre de souverain? Herein lies the Commissioners' dishonesty because if they thought that the principle of contemporaneity is indispensable, then they could not fail to examine the ideology of the Berlin Conference, the repeated attempt by Italy to colonise the whole Ethiopia in collusion with Britain and France despite the so-called treaties. If no delimitation was made it was because Italy wanted to take more territories gradually. So, if there had never been a delimitation and if Italy renounced its colonial possessions, and if as the Commissioners say that the Ethiopian government had already declared colonial treaties null and void on September 1952, can they still be applicable against Ethiopia? Should not have they examined all these questions before having recourse to establishing the meaning of the defunct treaties? Do they believe really that Italy which came to Ethiopia and robbed our territories in order to feed its impoverished population was acting in good faith when Commissioners say that" the Commission will apply the general rule that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose"?Very surprising as it is the Commissioners have also considered the reference to the 1964 OAU summit declaration to be relevant. They argue" ...the Commission does not read article 4, paragraph 1 as altering the general direction given to it in paragraph 2 of the same article. However the Commission does see the provision as having one particular consequence. It is that the parties have thereby accepted that the date as at which the borders between them are to be determined is that of the independence of Eritrea, that is to say, on 27 April 1993. Developments subsequent to that date are not to be taken into account save as in so far as they can be seen as a continuance or confirmation of a line of conduct already established, or take the form of express agreements between them".
The incomprehensible thing here is that the Commission has, like all other issues, tried to interpret the principle of uti possidetis in a very partial way. The principle of uti possidetis cannot be seen in isolation from colonialism. It is a principle which is applicable between countries whose territories were demarcated by Europeans colonialists. Uti possidetis cannot be conceived of outside this situation. Do the Commissioners believe that such a situation existed in the case of Ethiopia and Eritrea? Can one argue safely that this principle applies without establishing before hand whether Eritrea was decolonized in 1991 or seceded from Ethiopia? They deliberately avoided these questions because they write in their substantive introduction "there is little need to present any detailed account of the history of the parties or their relations outside the events that are immediately relevant to the issues before the Commission..."
If the relationship of the parties and history are not relevant, how can the application of uti possidetis can be relevant? This principle could only applicable to countries which obtained their independence from European powers in the 1960s and to countries which were regarded by the UN as colonial territories. Outside this, the Cairo summit of 1964 cannot have any sense. Therefore without determining before hand whether Eritrea is a secessionist or a decolonized one, one cannot blindly say that the OAU summit Declaration of 1964 is relevant unless on wants to hurt Ethiopia. The Commission's decision to take April 27, 1993 as the critical date for the application of the uti possidetis based EPRDF decision is also a great mistake. The Commission should have determined itself what the critical date is. That said, we know that Eritrea was de facto independent as of May 1991. Nevertheless, regarding the issue of Eritrean territory the question should have been: what was Eritrean territory when it was under "Ethiopian colonialism"? The EPRDF government cannot be considered to be an Ethiopian government in the EPLF sense of the word. It is not either so considered by Ethiopians because it fought against Ethiopia for Eritrea including in The Hague. The fact that the EPLF annexed Assab with the help EPRDF does not mean that Assab is not Ethiopian. The annexation is not surprising given that the EPLF had vassalized Ethiopia from 1991 to 1998. However, the annexation is null and void as far Ethiopians are concerned. No one, leave alone the EPRDF, has the right to cede our territories without the express approval of the Ethiopian people. While this the fact the Commission has made a great error in interpreting the principle of uti possidetis as being retroactively applicable from 1890 to 1993. Because by doing so it has behaved in such a way as to make invalid the UN resolution which federated Eritrea with Ethiopia, the UN's recognition that Ethiopia has a legitimate need to have an adequate access to the Red Sea. What legal grounds the Commission has to rewrite history and international law in favour Eritrea? The argument of the Commission is that it has done nothing other than implementing the will of the EPRDF to reward Eritrea. But, it has become the instrument of EPRDF's pro Eritrean policy. And that is why we say it has committed a professional fault because it has considered this case as a normal case by referring to international precedents and principles, et cetera which are normally applicable to valid treaties. Justice requires that the historical right of Ethiopia on what is called present day Eritrea before the arrival of Italian colonialists and the relationship of Ethiopia and Eritrea after the decolonization of Eritrea in 1952 be taken into account to determine if the principle of uti possidetis can legally and appropriately be applied to the demarcation of new border between Ethiopia and Eritrea?
The other argument which shows the partiality of the Commission is its decision to have recourse to a criterion of effective administration , to legislate by modifying its terms of reference and to give deliberately obscure decisions regarding for example the case of Badme with view to avoiding popular unrest in Ethiopia. Let us examine this one by one. Regarding the first point we read that "...the commission is satisfied in terms of administration range, quantity area, period to justify treating the Acran region as part of Eritrea". This shows clearly that the Commission has acted beyond its terms of reference which are the null and void colonial treaties. It has not said that the Acran region is Eritrean on the basis of a null and void treaty but it has given it to Eritrea on the basis of effective administration and that is based on a "proof" submitted by anti Ethiopia forces.
In other words, instead of deciding in accordance with its terms of reference, it has decided on the basis of who administered effectively Acran region no matter to whom this region belongs according to the defunct treaty. What is saddening is that the Commission has not applied the same criterion regarding many localities integral part of the Agamè awradja or other territories in Western Tigrai and in the Afar region. One can clearly see that when the application of a defunct treaty does not favour Eritrea, the Commission has applied effective administration contrary to its terms of reference. On the other hand when its criterion of effective administration is unfavourable to Eritrea, it has applied the illegal treaties. This shows undoubtedly how much the Commission has been politically pro Eritrea. The Commission has tried to justify its position by referring to article four of the Algiers Agreement which says that the border dispute shall be resolved in accordance with international law in addition to defunct colonial treaties. But as I said above, reference to the international law applicable to resolution of border dispute would have been justified had the Ethio-Eritrea case been the similar to other international border disputes. However, the history of Ethiopia and the historical Ethiopianness of Eritrea and the reunification of Eritrea with Ethiopia militate against drawing a parallel between this case and other international border disputes. It should not be forgotten that Eritrea is the only country in world history whose independence has been rendered possible by Ethiopians fighting for Eritrea against Ethiopia. National ego may not dispose to accept this fact. But one cannot change it. If EPRDF and TPLF were pro Ethiopia organisations, there is no reason why they should try to kill Ethiopia by coalescing with Eritrean rebels who are the number one enemies of Ethiopia and its people. Without taking into account all these facts, it is impossible to speak of all other things. However, the partiality of EPRDF towards Eritrea has led the Commission to be partial to Eritrea.
The partiality of the Commission can also be shown by its decision regarding the area of Fort Cardona and Tsorona,. The commission has clearly stated that these areas were on the Ethiopian side of the treaty line. However, the EPRDF argued that they wee undisputed Eritrean territories. While the pro Eritrean argument of the EPRDF is not at all surprising, it is incomprehensible why the commission decided to give effect to the conspiracy of the EPRDF? Was it not supposed to decide on the basis of its terms of reference as indicated in article four of the Algiers Agreement? Shouldn't the commission have clung to its terms of reference? It has deliberately overstepped its jurisdiction to hurt Ethiopia by modifying its terms of reference. The decision of the Commission shows how much the establishment of the Commission was intended to give a semblance of legality to the cession of Ethiopian territories. The anti Ethiopian decision of the Commission is not limited to these examples. Its obscure decision regarding Badme again shows how much it is a politically active Commission. It is a well known principle that any organ exercising a judicial activity should render a decision as clear as possible as to let know who has lost and who has won. The Commission knows that tens of thousands of men and women have been sacrificed for Badame. Why hasn't it indicated Badme clearly in the maps and why hasn't it said clearly that Badame has remained Ethiopian or has been ceded to Eritrea? Why render a deliberately obscure "decision"? Given its partiality and its active political involvement in favour of Eritrea, should we deduce that it wanted to save the EPRDF from public condemnation? In doing so, it has failed in its duty of giving unambiguous decisions which would not be susceptible of interpretation? We fear that the Commission made a deliberate obscure decision so that UN Cartographer on the ground should give Badme to Eritrea in collusion with the EPRDF? What guarantee Ethiopians have if their remaining territories are to be given again to Eritrea tomorrow under the pretext of demarcating the boundary line? The above examples show in no uncertain terms how much our nation is the victim of internal and international conspiracy. Next Page
[Opinions in this article are solely that of the writer.]