State Responsibility for Violations of International Humanitarian Law in the Work of the Eritrea-Ethiopia Claims Commission: A Reappraisal Ten Years On

Following the breakout of armed conflict between Ethiopia and Eritrea in May 1998, the two governments ‘permanently terminate[d] military hostilities between themselves’ pursuant to an agreement signed in Algiers on 12 December 2000. Article 5 of the Agreement provided for the establishment of a Claims Commission which was asked to ‘decide through binding arbitration all claims for loss, damage or injury by one Government against the other’ related to the armed conflict and resulting from ‘violations of international humanitarian law, including the 1949 Geneva Conventions, or other violations of international law.’ The present chapter discusses the standards the Commission has developed for determining State liability for violations of International Humanitarian Law that occurred during the war. It is submitted that said standards are not entirely in line neither with the mandate the Commission was given nor with the relevant rules of International Humanitarian Law. The chapter will try to provide possible explanations for this inconsistency and will reflect on the possible impact of the Commission’s determinations on proceedings aimed at ascertaining the individual criminal responsibility for war crimes committed during the conflict.