Partial Award, Civilians Claims, Eritrea’s Claims 15, 16, 23 & 27–32 Between the State of Eritrea and The Federal Democratic Republic of Ethiopia

Parties (including notable third parties)

The State of Eritrea ; The Federal Democratic Republic of Ethiopia

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Summary of Facts

Eritrea’s claims arose out of the emergence of Eritrea from Ethiopia as a separate State during the early 1990s, and the subsequent international armed conflict with Ethiopia.

Eritrea, once a separate State to Ethiopia, was subsumed by Ethiopia in the early 1960s. Since that time, and in the years preceding it, the Referendum Commission of Eritrea accepted that a significant number of people with Eritrean ancestry had dispersed throughout Ethiopia.

In 1991, Eritrean revolutionary forces had assumed power in Addis Ababa and Asmara and agreed that a referendum would be held to decide the future status of Eritrea.

On 6 April 1992, the Provisional Government of Eritrea issued Proclamation No 21.1992, setting out the requirements for Eritrean nationalisation. The requirements were:

• persons who were born to either a mother or a father who resided in Eritrea in 1933 acquired nationality at birth; and
• various other persons, including those married to Eritreans, could acquire nationality through a naturalisation process (although the acquisition of nationality by marriage was subject to substantial restrictions).

On 7 April 1992, the Commission issued a Referendum Proclamation establishing detailed procedures for the anticipated referendum, with participation limited to persons over 18 “having Eritrean citizenship pursuant to Proclamation No 22/1992… and who further possessed an Identification card issued by the Department of Internal Affairs”.

The first step in registering for the referendum was to obtain an “Eritrean Nationality Identity Card” documenting that the applicant met the nationality requirements of Proclamation No 22/1992. The delivery of the card was subject to various checks by the Eritrean Department of Internal Affairs. While the cards were issued by the “Provisional Government of Eritrea” they were not “provisional” or limited in duration or effectiveness. The Commission heard testimony that the cards could be used to make border crossings between Ethiopia and Eritrea in the years before the outbreak of war in 1998.

The referendum was held on 23-25 April 1993, with an extremely high participation rate and almost 90% of voters voting for Eritrea’s independence.

On 4 May 1993, Ethiopia’s Ministry of Foreign Affairs recognised Eritrea’s sovereignty and independence, and Eritrea became a member of the United Nations on 28 May 1993.

In May 1998, war broke out along the border of the two States.

Eritrea contended that soon after the outbreak of war, Ethiopia wrongly denationalised, expelled, mistreated and deprived of property tens of thousands of Ethiopian citizens of Eritrean origin in violation of international law.

Eritrea alleged the deprivation of Ethiopian nationality of the following dual national groups violated international law:

• dual nationals deprived of their Ethiopian nationality and expelled for security reasons;
• dual nationals who voluntarily left Ethiopia for Eritrea;
• dual nationals who remained in Ethiopia (known as 'Yellow Card' holders);
• dual nationals who were in third countries or left Ethiopia to go to third countries;
• dual nationals already in Eritrea; and
• dual nationals expelled for reasons other than being a potential security risk to Ethiopia.

At the core of the dispute was whether the affected individuals remained Ethiopian nationals. Eritrea maintained that dual nationality persisted, and that the forced loss of Ethiopian nationality, especially where individuals did not renounce it or had not taken active steps to assume Eritrean nationality, was unlawful.

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Legal Arguments

Legal arguments by the Claimant

Eritrea’s claims alleged five major substantive breaches of international law:

1. Mass expulsion;
2. Denationalisation;
3. Detention without due process;
4. Deprivation of property; and
5. Forcible family separation.

Eritrea also contended that Ethiopian actions often reflected legally prohibited discrimination, being discrimination against those of Eritrean heritage, although it was not pressed a separate head of claim.

This case summary focuses only on Eritrea’s “denationalisation” claim.

Eritrea claimed that, after the war began, Ethiopia wrongly deprived thousands of Ethiopian citizens of Eritrean origin of their Ethiopian citizenship and expelled them, contrary to international law (Article 15 of the Universal Declaration of Human Rights: the right not to be arbitrarily deprived of one’s nationality).

Eritrea claimed that Ethiopia’s actions left a number of persons stateless because qualifying to participate in the 1993 Referendum was not sufficient to confer Eritrean nationality. Eritrea contended that acquiring an Eritrean nationality card did not have legal significance because Eritrea was not yet a State capable of conferring nationality – the State of Eritrea came into being after the 1993 Referendum.

Legal arguments by the Respondent

Ethiopia contended that those expelled had voluntarily acquired Eritrean nationality, most by qualifying to participate in the 1993 Referendum, and had therefore renounced their Ethiopian nationality under Ethiopian law. Ethiopia further maintained that it had only expelled dual nationals who had also committed other acts justifying viewing them as threats to Ethiopia’s security. Ethiopia also contended that Eritrea had already emerged as a State in fact by the time of the 1993 Referendum, and was capable of conferring effective nationality under international law, even before it was formally recognised by other States or admitted to the United Nations. On this basis, Ethiopia argued that Eritrean nationality acquired through the Referendum or issuance of identity cards was legally valid and triggered the loss of Ethiopian nationality under its 1930 law.

Ethiopia relied on the operation of Article 11 of the 1930 Ethiopian nationality law that provided that Ethiopian nationality is lost when another nationality is acquired.

Outcome

The Commission found that the issuance of Eritrean nationality cards to enable participation in the 1993 Referendum did carry important legal consequences, including the acquisition of Eritrean nationality in fact.

While the governing entity issuing the cards was not yet formally recognised as an independent State, it otherwise reflected the characteristics of a State in international law.

The Commission first considered the legal consequences of the 1993 Referendum. The Commission found that those who qualified to participate in the 1993 Referendum, governed as it was by the Referendum Proclamation, in fact acquired dual nationality. They became nationals of the new State of Eritrea pursuant to Eritrea’s Proclamation No. 21/1992, while at the same time, Ethiopia continued to regard them as its own nationals.

The Commission’s finding of dual nationalities was underpinned by a 1996 Agreed Minute between the Parties that deferred the requirement for a dual national to choose a single nationality until the Parties had agreed to the rules governing their economic relations.

The Commission placed great weight on the Agreed Minute as indicating the Parties’ awareness of the citizenship issues arising from the separation of Eritrea from Ethiopia.

The question for the Commission was then whether, in all the circumstances, Ethiopia’s action in depriving dual nationals of Ethiopian nationality was unlawful.

The Commission recognised that international law limits States’ powers to deprive persons of their nationality. It placed particular importance on Article 15, paragraph 2, of the Universal Declaration of Human Rights, that “no one shall be arbitrarily deprived of his nationality”.

The Commission’s task, therefore, required consideration of whether the deprivation of nationality was arbitrary. The Commission considered several factors including whether the action had a basis in law, whether it resulted in persons being rendered stateless, and whether there were legitimate reasons for the deprivation of nationality in the circumstances.

The Commission found that, in the context of an international armed conflict, international law permitted Ethiopia’s actions but only in respect of those individuals that had first been properly identified as potential security risks, as summarised below.

Group 1: Dual nationals deprived of their Ethiopian Nationality and Expelled for Security Reasons

• The Commission accepted Ethiopia’s contention that, following the outbreak of war, its security officials were deeply concerned about the security threat posed by over 66,000 Ethiopian residents who had acquired nationality of the now-enemy Eritrean State.
• The Commission found that Ethiopia applied reasonable criteria to assess security risks, and therefore, the deprivation of nationality in these cases was not arbitrary and did not breach international law.

Group 2: Dual Nationals Who Chose to Leave Ethiopia and Go to Eritrea

• The Commission accepted that a large, albeit uncertain, number of dual nationals chose to leave Ethiopia and return to Eritrea for various reasons.
• The Commission considered that leaving Ethiopia was a “serious act” that could not be without consequences for any dual national of warring States. The Commission decided that the termination of the Ethiopian nationality of these persons was not arbitrary and was not in violation of international law.

Group 3: Dual Nationals Remaining in Ethiopia: “Yellow-Card People.”

• The Commission found that the deprivation of Ethiopian nationality of persons remaining in Ethiopia, who did not threaten Ethiopian security, was arbitrary and contrary to international law because there was no individualized assessment or due process was conducted to determine whether deprivation was justified and no opportunity for review or appeal was provided

Group 4: Dual Nationals Who Were in Third Countries or Who Left Ethiopia To Go to Third Countries

• The Commission found that the deprivation of Ethiopian nationality of dual nationals residing in countries other than Ethiopia or Eritrea, who did not threaten Ethiopian security, was arbitrary and contrary to international law.

Group 5: Dual Nationals Who Were in Eritrea

• The Commission found that the termination of Ethiopian nationality was not arbitrary or otherwise unlawful.

Group 6: Dual Nationals Expelled for Other Reasons

• The Commission found that the expulsion and termination of Ethiopian nationality of dual nationals for reasons other than being security risks was arbitrary and unlawful.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 2 November 1950)	Articles 6, 24, 27, 33, 35, 38, 41, 42, 43, 53, 84
International	Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978)	Article 3, 75
International	Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948)	Article 15
International	Hague Convention (IV) Respecting the Laws and Customs of War on Land and Annexed Regulations, opened for signature 18 October 1907, [205 ConTS 277, 205 ConTS 277]	Articles 23, 47
International	Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)	Article 9, 38
International	Treaty of Peace between the Allied and Associated Powers and Germany signed on 28 June 1919
International	Treaty of Paris between Italy and the Allied Powers signed on 10 February 1947	Art 79
International	Treaty of Peace with Bulgaria signed on 10 February 1947	Art 25
International	Treat of Peace with Hungary signed on 10 February 1947	Art 29
Regional	Eritrea-Ethiopia Claims Commission Rules of Procedure	Article 19
Regional	Agreement between the Government of the State of Eritrea and the Government of the Federal Democratic Republic of Ethiopia of December 12, 2000	Article 5
Regional	African Charter on Human and People’s Rights, opened for signature 1 June 1981 (entered into force 21 October 1986)
Regional	Agreed Minutes of the Fourth Ethio-Eritrean Joint High Commission Meeting (August 1996)	Paragraph 4.3.4
Domestic	Eritrean Nationality Proclamation No. 21/1992, 6 April 1992	Articles 2, 4 and 6
Domestic	Eritrean Referendum Proclamation No. 22/1992, 7 April 1992	Article 24
Domestic	Civil Code (Ethiopia)	Article 11, 390
Domestic	Constitution of the Federal Democratic Republic of Ethiopia 1995	Article 33

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Won Kidane, 'Civil Liability for Violations of International Humanitarian Law: The Jurisprudence of the Eritrea-Ethiopia Claims Commission in the Hague' (2007) 25(1) Wisconsin International Law Journal 23

• Kidane analyses the structure of the Ethiopia-Eritrea Claims Commission and its potential to deliver post-conflict adjudication of claims for compensation, including by inspiring “more interest in civil liability as a viable mechanism of enforcement of international humanitarian law”.
• Kidane summarises the reasons for the Commission’s finding that the deprivation of Ethiopian nationality from Eritrean nationals was not unlawful, when regard was given to the “totality of wartime circumstances”. The Commission applied a combination of human rights and humanitarian law principles which led it to find that while some of Ethiopia’s procedures fell short of human rights standards, they were justified under humanitarian law.

Sean D Murphy, ‘The Experience of the Eritrea-Ethiopia Claims Commission’ (2012) 106 American Society of International Law 237

• Murphy focuses on the experience of the Eritrea-Ethiopia Claims Commission, before which he appeared on behalf of the government of Ethiopia from 2001 to 2008. The article is relevant to understanding the Commission’s procedural approach.
• Murphy touches on the burden of proof, the standard of proof and the types of evidence the Commission found probative. The types of evidence relied upon by the Commission included the testimony of witnesses of fact (such as former prisoners of war, civilian detainees, expellees, victims of violence, military commanders and government officials) and expert witnesses (including psychiatrists, medical doctors and military experts).  The Parties also relied on signed declarations from witnesses with personal knowledge of the events that transpired over the relevant time; and reports, studies and publications from various sources. Murphy suggests that the Commission’s reliance on reports and other documents prepared by non-governmental organisations appeared minimal.