## Facts

- Eritrea and Ethiopia fought an international armed conflict from 1998–2000. The Algiers peace agreement created the Eritrea–Ethiopia Claims Commission (EECC) to decide certain inter-state claims for conflict-related loss, damage, or injury resulting from violations of international humanitarian law (IHL) or other international law.
- Ethiopia filed “Central Front—Ethiopia’s Claim 2,” seeking findings that Eritrea violated international law on the Central Front and requesting compensation (with quantum to be handled later).
- A major category of allegations concerned rape and other sexual violence against civilians by soldiers, described as opportunistic (not alleged to be used as a method of warfare). The parties agreed that rape of civilians by occupying forces violates customary international law reflected in the Geneva Conventions.
- Ethiopia also alleged other misconduct by Eritrean troops in areas under Eritrean control, including physical abuse of civilians, looting/pillage, and destruction of civilian property not justified by military necessity.
- Ethiopia further challenged aspects of Eritrea’s conduct of hostilities, including aerial attacks affecting civilians (including the strike on Mekele), and raised claims connected to civilian flight/displacement.
- The Commission received mixed forms of proof (including testimony, written statements, and claim forms) and addressed how evidence should be evaluated in a mass-claims setting.

## Issues

1. Whether Ethiopia’s Central Front allegations fell within the EECC’s mandate and, if so, whether the Commission would address only serious violations affecting multiple victims or recurring patterns of conduct.
2. What body of law governed the parties’ conduct (including whether specific treaty rules reflected customary IHL applicable between the parties).
3. What burden and standard of proof applied to allegations of grave misconduct (including rape), and what weight to give different categories of evidence.
4. Whether Eritrea incurred state responsibility for rape and other abuses by its soldiers, including for failures to take effective preventive and disciplinary measures in areas under its control/occupation.
5. Whether Eritrea was responsible for looting and destruction of civilian property beyond what military necessity permitted.
6. Whether Eritrea violated IHL rules on precautions in attack in connection with aerial operations affecting civilians (including Mekele), even where the intended target could qualify as a military objective.
7. Whether Eritrea incurred responsibility for civilian displacement where civilians fled fighting absent proof that terrorization was a primary purpose.

## Decision

- The Commission confirmed it had jurisdiction over Ethiopia’s conflict-related claims under the governing agreement, but stated it would focus on serious violations affecting a significant number of victims and on conduct shown to be frequent and recurring, rather than isolated incidents.
- The Commission held that the applicable law was customary international law of armed conflict, with the Geneva and Hague rules treated as key evidence of customary rules; a party asserting that a particular convention rule was not customary bore the burden to show that it was not.
- For allegations of grave violations, the Commission required clear and convincing evidence and placed the burden of proof on Ethiopia; it credited detailed, mutually reinforcing testimony more than untested claim forms and questionnaires, and treated sworn written witness declarations as particularly reliable among written materials.
- On rape and sexual violence, the Commission accepted that rape of civilians by occupying forces violates customary IHL and held that Eritrea could incur state responsibility for failing to take effective measures to prevent and punish rapes committed by its soldiers in areas under its control, noting that responsibility may arise even where incidents are not numerous given the offense’s gravity.
- The Commission found Eritrea responsible in proven instances where its troops physically abused civilians, looted, and destroyed civilian property, while also clarifying that insults, verbal abuse, and psychologically painful situations were not automatically “mental abuse” for liability purposes.
- On displacement, the Commission declined to impose liability merely because civilians fled the fighting, absent proof that the intentional spreading of terror was a primary purpose of the operation.
- On aerial operations, the Commission treated facilities such as airports and those connected to military aircraft as capable of being lawful military objectives, but found potential responsibility for failures to take all feasible precautions in planning and executing airstrikes—highlighting issues such as pilot training and the absence of meaningful post-strike investigation in relation to civilian harm (including the Mekele attack).
- On certain weapons-law arguments, the Commission did not accept that specific, recently concluded treaty prohibitions on anti-personnel landmines/booby traps had crystallized into customary law at the relevant time, while recognizing customary constraints such as duties connected to recording minefields and avoiding indiscriminate use.
- The Commission deferred compensation/quantum to later proceedings.

## Legal Principles

- Customary IHL governed the dispute; the Geneva and Hague rules were treated as strong evidence of customary rules, and a state disputing a claimed rule’s customary status carried the burden to show it was not customary.
- The claimant state bears the burden of proof; for grave violations the Commission applied a clear and convincing evidence standard and evaluated reliability based on detail, internal consistency, and the ability to test accounts.
- In a mass-claims process, cumulative and mutually reinforcing testimony can establish proof; claim forms/questionnaires have limited probative value; sworn written declarations are generally more reliable than unsworn written accounts.
- Rape of civilians by occupying forces violates customary international law; an occupying power must take effective preventive and disciplinary measures, and failure can generate state responsibility even when rape is not shown to be widespread.
- The law of occupation can apply based on effective control even where sovereignty/title to the territory is contested, without prejudging final status.
- Civilian displacement caused by flight from combat does not, by itself, establish state responsibility absent proof of displacement linked to terror as a primary purpose.
- Even when an object may be a military objective (including certain airport/aircraft-related facilities), attackers must take all feasible precautions to reduce civilian harm; deficiencies in planning, execution, training, and post-strike inquiry may support liability.
- Newly adopted treaty prohibitions do not automatically reflect customary law; customary limits may still apply through broader principles such as avoiding indiscriminate effects and taking feasible steps to reduce civilian harm.

## Conclusion

In its partial award on Ethiopia’s Central Front claim, the EECC applied customary IHL and a clear-and-convincing proof standard, found Eritrea responsible for proven serious violations (including failures to prevent/punish rape by soldiers in areas under its control, physical abuse, looting, and unjustified property destruction), assessed air operations through the lens of feasible precautions (including the Mekele strike), rejected liability theories based only on civilians fleeing combat absent proof of terror as a primary purpose, and deferred compensation to a later phase.


Central Front Partial Award—Ethiopia's Claims, 43 I.L.M. 1275 (2004)