Skip to main content

Claims on Behalf of Individuals Before the Eritrea-Ethiopia Claims Commission

  • Chapter
  • First Online:
The 1998–2000 Eritrea-Ethiopia War and Its Aftermath in International Legal Perspective
  • 502 Accesses

Abstract

According to the Algiers Agreement, the parties could file claims on behalf of named individuals before the Eritrea-Ethiopia Claims Commission. This chapter aims to analyse this kind of claims, which did not change the nature of the Commission as an inter-State tribunal, but placed individuals in a peculiar position regarding compensation for damages. A compensation of a determined amount was indeed awarded to these individuals and the State, i.e., Eritrea did not seem to have any discretion in determining the distribution of reparation, as it had for compensation of unnamed individuals. Nevertheless, the control of the State in filing the claims and the failed payment of compensation made these claims on behalf of individuals substantially ineffective. Claims on behalf of individuals were also too few to create a mass compensation mechanism which would have probably been more successful for individuals and would have granted them effective relief.

The author holds a PhD in Domestic and International Arbitration Law, LUISS Guido Carli University, Rome. She is a lawyer in Brescia, Italy.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Subscribe and save

Springer+ Basic
EUR 32.99 /Month
  • Get 10 units per month
  • Download Article/Chapter or Ebook
  • 1 Unit = 1 Article or 1 Chapter
  • Cancel anytime
Subscribe now

Buy Now

Chapter
USD 29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD 149.00
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Softcover Book
USD 199.99
Price excludes VAT (USA)
  • Compact, lightweight edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info
Hardcover Book
USD 199.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Similar content being viewed by others

Notes

  1. 1.

    Agreement between the Government of the State of Eritrea and the Government of the Federal Democratic Republic of Ethiopia, 12 December 2000. The text is reproduced in Appendix A to this volume.

  2. 2.

    EECC, Partial Award: Civilians Claims, Eritrea’s Claims 15, 16, 23 and 2732, 17 December 2004, PCA Case No. 2001-02, paras 6 and 43; see Weeramantry 2006, p. 201.

  3. 3.

    Klein 2004, p. 215.

  4. 4.

    This was the only way to file claims for non-nationals. The Commission dismissed claims filed by Eritrea ‘on behalf of itself’ for injuries and losses suffered by non-nationals: ‘Eritrea’s claims based on injuries to non-nationals made for Eritrea’s own account, and not on behalf of the affected individuals, are outside the Commission’s jurisdiction.’ Civilians Claims, Eritrea 2004 (above n 2) XIII Award A.2; and para 90: ‘… the State of Eritrea could not claim for injuries to itself based upon injuries suffered by persons who were solely Ethiopian nationals when they were injured.’

  5. 5.

    Examples of a locus standi of individuals in international tribunals for war damages compensation are the Mixed Arbitral Tribunals established after the First World War by the Versailles Treaty, Sec A. See Gattini 2003, p. 631. The individuals were able to present claims also before the US-Iran Claims Tribunal pursuant to Article 11(1) of the Claims Settlement Declaration, l9 January 1981, ILM 20:230. See Aldrich 1996, p. 43.

  6. 6.

    Claims were submitted by governments on behalf of their nationals and corporations also in the UN Compensation Commission established by the Security Council in 1991 to process claims and pay compensation for losses resulting from Iraq’s invasion and occupation of Kuwait. See Lillich 1995, p. 45.

  7. 7.

    van Houtte 2011, p. 163.

  8. 8.

    In its Statements of Claims of l2 December 2001, Eritrea declared to file claims on behalf of Hiwot Nemariam (Claim 27), Belay Redda (Claim 28), Sertzu Gebre Meskel (Claim 29), Fekadu Andemaskal (Claim 30), Mebrahtu Gebremedhim (Claim 31) and Mabrat Gebreamlak (Claim 32). The reason why Eritrea decided to file only these particular claims was that some of the six claimants had already started to claim compensation from Ethiopia before Washington DC District Court when the EECC was installed (see below, Sect. 23.3). These claims were rejected because in the Court’s opinion Eritrea could bring a claim on behalf of the claimants before the EECC. In view of this decision Eritrea probably could not refuse to make use of the possibility granted by the Peace treaty, and did lodge the claims on behalf of the individuals. van Houtte 2011, pp. 164–165.

  9. 9.

    Murphy et al. 2013, p. 60.

  10. 10.

    EECC, Decision Number 2: Claims Categories, Forms and Procedures, August 2001, PCA Case No. 2001-02.

  11. 11.

    The Commission decided that, in principle, the appropriate remedy for valid claims submitted to it should be monetary compensation. See EECC, Decision Number 3: Remedies, August 2001, PCA Case No. 2001-02.

  12. 12.

    The level of the first tier of fixed-sum compensation in the mass claims process would have been $500 per individual national and the level of the second tier would have been $1500 per individual national. The parties could also file claims on behalf of an individual national in more than one of the categories 1–5 in the mass claims process: Decision Number 5: Multiple Claims in the Mass Claims Process, Fixed-sum Compensation at the USD 500 and USD 1500 Levels, Multiplier for Household Claims, August 2001, PCA Case No. 2001-02, para B. In the same Decision (para C) particular rules about household claims were also established.

  13. 13.

    Decision Number 2 2001 (above n 10) para B.

  14. 14.

    EECC, Rules of Procedure, 1 October 2001.

  15. 15.

    According to Article 23 of the Rules of Procedure, Chapter 2 would apply to all claims filed by the government of one party on its own behalf against the government of the other party, to all claims for compensation over $100,000 on behalf of persons, and to any other claims which required individual treatment. The Rules of Procedure reflect Decision Number 2 2001 (above n 10) para C.

  16. 16.

    Dybnis 2011, pp. 275–279.

  17. 17.

    Dybnis 2011, p. 268. According to the author, the most important reason of this failure was the strict deadline (one year) that the Commission set for the collection of claims and the time that it would take to adequately collect individuals’ claims.

  18. 18.

    The final choice whether filing or not a claim on behalf of named individuals seems to have been under the total control of each State, and there was no remedy for the individual if the government refused to file his claim. In the UNCC system, on the contrary, even if governments made an initial grouping, evaluation and processing of the claims prior to sending them to the UNCC Secretariat, there was a subsidiary protection for private companies, which were able to directly present their claims if the State refused to file them. Frigessi di Rattalma 1995, p. 115.

  19. 19.

    This would have required considerable technical assistance from experts in computer software and statistic. Murphy et al. 2013, p. 62.

  20. 20.

    Civilians Claims, Eritrea 2004 (above n 2) para 19.

  21. 21.

    Colandrea 2006, p. 790.

  22. 22.

    Nemariam v. Federal Democratic Republic of Ethiopia, 315 F.3d 390, 354 U.S. App. D.C. 309, CA.D.C., 24 January 2003 (No. 01-7142).

  23. 23.

    The appellants sought to establish jurisdiction pursuant to 28 U.S.C. § 1605(a)(3)-FSIA’s so-called ‘expropriation exception’ alleging that Ethiopia had illegally expropriated their bank accounts (bank account claims) and other property (non-bank account claims). Section 1605(a)(3) provides: (a) A foreign State shall not be immune from the jurisdiction of courts of the United States or of the States in any case- … (3) in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign State;  or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign State and that agency or instrumentality is engaged in a commercial activity in the United States.

  24. 24.

    The Court of Appeal ultimately dismissed the claims because Ethiopia enjoyed immunity of jurisdiction (US Court of Appeals-District of Columbia, Nemariam v. Federal Democratic Republic of Ethiopia, 22 June 2007, 491 F.3d 470 (D.C. Cir. 2007)).

  25. 25.

    Alford 2003, p. 421. According to the author in the Circuit Court’s opinion such claims would consist in a diplomatic espousal before an international tribunal, which can never afford claimants an adequate forum justifying dismissal based on forum non conveniens unless they meet domestic requirements of standing and execution of judgment.

  26. 26.

    Because the individuals are not left alone in a complex procedure against another State and they can obtain effective protection of their own rights before an international tribunal, which is preferable to claiming before national courts of the parties, whose impartiality in a compensation process could be doubtful. Jouannet 2001, pp. 875–876.

  27. 27.

    van Houtte 2011, p. 163.

  28. 28.

    Webb 2019, p. 96.

  29. 29.

    EECC, Decision Number 8: Relief to War Victims, 27 July 2007, PCA Case No. 2001-02.

  30. 30.

    Civilians Claims, Eritrea 2004 (above n 2) para 19.

  31. 31.

    EECC, Final Award: Eritrea’s Damages Claims, 17 August 2009, Chapter VIII—Individual claims, para 393 ff, and Chapter IX—Award, paras 20–21.

  32. 32.

    Civilians Claims, Eritrea 2004 (above n 2) para 160.

  33. 33.

    Eritrea’s Damages Claims 2009 (above n 31) paras 393–436.

  34. 34.

    Civilians Claims, Eritrea 2004 (above n 2) para 72. See Sanna, Chap. 16, Sect. 16.6.

  35. 35.

    Civilians Claims, Eritrea 2004 (above n 2) para 82.

  36. 36.

    Civilians Claims, Eritrea 2004 (above n 2) para 110.

  37. 37.

    Civilians Claims, Eritrea 2004 (above n 2) para 146.

  38. 38.

    Civilians Claims, Eritrea 2004 (above n 2) para 152.

  39. 39.

    Civilians Claims, Eritrea 2004 (above n 2) para 150.

  40. 40.

    See Article 5(10) of the Algiers Agreement.

  41. 41.

    Eritrea’s Damages Claims 2009 (above n 31) Chapter IX—Award, para 20. See Murphy et al. 2013, p. 94.

  42. 42.

    In the UNCC system, individual and corporate claimants remained the legitimate holders of the reparation claims. On UNCC procedure, see Bottigliero 2004, p. 92.

  43. 43.

    Dybnis 2011, p. 285. See also Gowlland-Debbas, Chap. 25, Sects. 25.3 and 25.5.

  44. 44.

    Dybnis 2011, p. 281. The author, very critical about the choice of the parties and of the Commission, identifies lack of time, resources and will as the effective reasons for this choice.

References

  • Aldrich G H (1996) The Jurisprudence of the Iran-United States Claims Tribunal. Clarendon Press, Oxford

    Google Scholar 

  • Alford R (2003) Introductory note to US Court of Appeal for the District of Columbia Circuit: Nemariam et al. v. Ethiopia. International Legal Materials 42(2):420–422

    Google Scholar 

  • Bottigliero I (2004) Redress for victims of crime under international law. Springer, Leiden

    Google Scholar 

  • Colandrea V (2006) L’attribuzione allo Stato delle gravi violazioni del diritto internazionale umanitario nella giurisprudenza della Eritrea Ethiopia Claims Commission [EECC case law on attribution to states of serious violations of international humanitarian law]. La Comunità internazionale 61:785–800

    Google Scholar 

  • Dybnis A (2011) Was the Eritrea-Ethiopia Claims Commission Merely a Zero-Sum Game?: Exposing the Limits of Arbitration in Resolving Violent Transnational Conflict. Loyola of Los Angeles International and Comparative Law Review 33:255 ff

    Google Scholar 

  • Frigessi di Rattalma M (1995) Nazioni Unite e danni derivanti dalla guerra del Golfo [The United Nations and the damages deriving from the Gulf War]. Giuffrè, Milan

    Google Scholar 

  • Gattini A (2003) Le riparazioni di guerra nel diritto internazionale [War reparations in international law]. CEDAM, Padova

    Google Scholar 

  • Jouannet E (2001) Le règlement de paix entre l’Ethiopie et l’Erythrée: un succès majeur pour l’ensemble de l’Afrique? RGDIP 105:849–895

    Google Scholar 

  • Klein N (2004) State Responsibility for International Humanitarian Law Violations and the Work of the Eritrea Ethiopia Claims Commission So Far. GYIL 47:214–266

    Google Scholar 

  • Lillich R B (1995) The United Nations Compensation Commission, Thirteenth Sokol Colloquium. Transnational Publishers, Irvington NY

    Google Scholar 

  • Murphy S D, Kidane W, Snider T R (2013) Litigating war: Mass Civil Injury and the Eritrea-Ethiopia Claims Commission. Oxford University Press, Oxford/New York

    Google Scholar 

  • van Houtte H (2011) Arbitration to settle private war-damages claims? The Eritrea-Ethiopia Claims Commission Revisited. In: Weiler T, Baetens F (eds) New Directions in International Economic Law (in memoriam Thomas Walde). Martinus Nijhoff Publishers, Leiden/Boston, pp. 155–177

    Google Scholar 

  • Webb P (2019) Forum non conveniens: Recent Developments at the intersection of Public and Private Law. In: Giorgetti C, Klein N (eds) Resolving Conflicts in the Law: Essay in Honor of Lea Brilmayer. Brill Nijhoff, Leiden/Boston, pp. 78–97

    Google Scholar 

  • Weeramantry J R (2006) Civilian Claims (Eritrea v. Ethiopia), Eritrea’s Claims 15, 16, 23 & 27–32/Ethiopia’s Claim 5, Partial Awards. AJIL 100:201

    Google Scholar 

Download references

Author information

Authors and Affiliations

Authors

Corresponding author

Correspondence to Luisa Castagnetti .

Editor information

Editors and Affiliations

Rights and permissions

Reprints and permissions

Copyright information

© 2021 T.M.C. Asser Press and the authors

About this chapter

Check for updates. Verify currency and authenticity via CrossMark

Cite this chapter

Castagnetti, L. (2021). Claims on Behalf of Individuals Before the Eritrea-Ethiopia Claims Commission. In: de Guttry, A., Post, H.H.G., Venturini, G. (eds) The 1998–2000 Eritrea-Ethiopia War and Its Aftermath in International Legal Perspective. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-439-6_23

Download citation

  • DOI: https://doi.org/10.1007/978-94-6265-439-6_23

  • Published:

  • Publisher Name: T.M.C. Asser Press, The Hague

  • Print ISBN: 978-94-6265-438-9

  • Online ISBN: 978-94-6265-439-6

  • eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics