TEIMUN 2011 The international court of justice Though this case is inspired by true events, it is mostly fictional 1.
Ethiopia and Eritrea are both located in north-eastern Africa, in an area called the "Horn
of Africa". While Ethiopia has been an independent state for many years, Eritrea was, until 1952, an Italian colony. It was annexed by Ethiopia between 1962 and 1993, when it was granted its independence, following a monitored referendum. 2.
In the early 1990's, relations between the countries were rather peaceful, but after Eritrea
introduced its own currency in 1997, relations deteriorated. The animosity was augmented by many border disputes, Ethiopia's frustration over having no sea access (hence making its trade passage dependant on other states) and the states' differing attitudes on economic development and ethnicity. 3.
In May 1998, hostilities between Ethiopia and Eritrea led to a large scale war that began
when Eritrean forces occupied the border town of Badme, which was then administered by Ethiopia. The war continued from May 1998 until June 2000, causing the death of more than 70,000 people and leaving more than 750,000 people displaced. Evidence indicates that during the war both sides violated International Humanitarian Law and Human Rights Law. 4.
The two states agreed on a cease-fire in June 2000 and signed a peace treaty in Algiers in
December 2000. According to this agreement, a Claims Commission for resolving all claims for losses and damages during the war will be established, under the auspices of the Permanent Court of Arbitration in The Hague. Moreover, an International Border Commission that will rule and demarcate the border line between the states is to be established. Both states agreed to comply with the commission's ruling, whatever it may be. 5.
Despite the Algiers agreement, relations between the countries remained cold and rather
volatile as disputes continued. In April 2002 the International Border Commission ruled that the disputed border town Badme belonged to Eritrea. Ethiopia rejected the ruling and refused to withdraw to the new border-line. To date, Ethiopia continues to hold the town. In November 1
2007 the commission demarcated the whole 1000 km border between the states. Eritrea accepted and complied with the ruling while Ethiopia rejected it. 6.
In addition, in July 2008 the UN peace-keeping forces were compelled to withdraw from
the Eritrean-Ethiopian border in wake of obstacles and restraints posed by Eritrea, which limited food and fuel passage to the forces, forbade flights above its territory and even expelled some of the troops from its soil. The UN Secretary General threatened that a new war could occur between the states if and when the UN forces would leave the area. Moreover, in December 2009 the UN cast sanctions on Eritrea for allegedly supporting radical Islamist dissidents in Somalia. This too is another point of conflict as Ethiopia is known to be a supporter of The Transitional Federal Government ("TFG") of Somalia. 7.
Throughout the years, the Eritrean government has maintained close ties with the
extremist Somali rebel organization, "Somali Islamist Freedom Fighters" or as it is better known “SIFF”. The organization was founded in 1991, in the aftermath of a civil war in Somalia and the toppling of Somali ruler Siad Barre, by Ethiopia. 8.
SIFF’s stated objectives were to return Somalia to its native people, banish all foreign
powers from within the country and strengthen the country itself by solving its many economical issues. The organization, which began as a local political grassroots movement drew many young supporters and very quickly began to take a more militant approach towards achieving its objectives. 9.
In 1993, as part of its transformation and armament, SIFF held secret contacts with
officials in the Eritrean government, which supported the goal of banishing the foreign presence from Somalia as well as the general stabilization of the area. 10.
With the establishment of the TFG in Somalia, in 2004, contacts between SIFF and
Eritrea grew stronger. Commanders of the SIFF organization visited colleagues in the Eritrean military and vice versa. Due to shared values, history, religion and tradition, many close friendships were forged and even several matrimonial bonds. Additionally, as part of Eritrean support of SIFF, the Eritrean government transferred considerable funds for recruitment of
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young adults into the SIFF’s ranks along with military equipment, such as bulletproof vests, communication equipment, helmets, military rations etc. 11.
In recent years SIFF’s power and influence in Somalia has risen and, in turn, its many
actions were considered infamous in the entire area and often reported worldwide. Some of its more successful actions included taking control of several townships in Somalia while banishing foreign forces from the area, several terror attacks in major commercial markets and the successful raiding of foreign ships in the Gulf of Aden. Their actions have terrified the region’s people and exacted a high toll in human life. 12.
On July 1st 2010 Eritrea engaged in a weapons deal with the government of Belarus for
the purchase of 50 modernized t-72 tanks, surface-to-air and surface-to-surface missiles, large quantities of various light weaponry and a wide assortment of ammunition. Through this deal the Eritrean government had hoped to compensate for the fact that its air force capabilities were practically non-existent. 13.
Upon arrival of the purchased arms and equipment on August 15th, the Eritrean Defense
Force began positioning the newly acquired missiles, carrying out advanced training for all its forces while employing the new weapons and gearing up the new tanks. 14.
On the 29th of August the Eritrean army began transporting the new tanks to its south-
west bases near the Ethiopian border. At the same time, in a televised press conference, the Minister of Trade and Industry of the Eritrean Government stated that Eritrea was stronger than ever and is prepared for all possible scenarios. 15.
That same afternoon, the Ethiopian Minister of Defense called an emergency cabinet
meeting in order to address the new regional security issues. In this meeting it was decided that it was imperative that all means be taken to halt Eritrea’s aggressive actions. In accordance with this decision, at 17:00 of that day two combat squadrons of the Ethiopian Air Force crossed the border into Eritrea and bombed the major military bases in south-west Eritrea as well as the Eritrean military’s munitions’ stockpiles throughout the country. The fighter jets then proceeded to blockade the air space of the central airport in Asmara, the capital of Eritrea.
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16.
The Ethiopian attack did not go unrequited. The president of Eritrea Manoolu Blanick
immediately convened his cabinet, which decided unanimously to call a general draft and take military steps to restore national security and to assure that Ethiopia’s attacks were not repeated. 17.
In an address to the nation that same evening Manoolu said that his country had no choice
but to enter into the war Ethiopia had started by attacking Eritrea, a war that Eritrea had not provoked and which had been launched without warning. Manoolu continued, saying “the Eritrean people will not rest until its borders and citizens are safe and secure". 18.
The next morning, on August 30st 2010, the war entered full scale. Eritrea’s new tanks
began moving towards the Ethiopian border, anti-air missiles were fired at the blockading aircraft in Asmara and infantry, armor and artillery troops began crossing into Ethiopia. The Ethiopian Air Force, for its part, bombed Eritrea’s main ports and brought their activity to a complete halt. The Ethiopian ground forces clashed with their Eritrean counterparts who had crossed the border into Ethiopia and intense hand-to-hand fighting ensued, bringing about ruin and devastation to the villages in the area. 19.
The Prime Minister of Ethiopia Girma Nagesh stated, in a televised announcement, that
her country would not hesitate to use all means necessary to protect its borders and territory. She also called upon the world to condemn Eritrea’s aggression. The UN Security Council, in turn, condemned the war and called on both sides to act with restraint. 20.
Despite all condemnations the war raged on at all fronts. At the shared border the fighting
took on a form of a war of attrition, of face to face trench warfare, under cover of armored troops and artillery fire. Inside Ethiopia, Eritrean commando units targeted and destroyed bridges and main access routes. The Red Sea too became part of the battlefield: Ethiopian warships patrolled the waters and prevented, whether by threat or explicit force, ships intended for Eritrea or carrying an Eritrean flag, from reaching their destination. 21.
The fighting continued for many months with no sign of any discernible resolution. The
economies of both countries were harmed to the point of destruction, especially that of Eritrea, due to having its ports and airport completely shut down. Additionally, the area suffered from an extreme drought which worsened the general wellbeing of the belligerents and civilians of both 4
sides. On the battlefield, the death toll rose and reached 50,000 along with hundreds of thousands of wounded soldiers from both nationalities. 22.
On December 20th 2010, while the war still raged on, one of SIFF’s boats called the
"Sumanga" left its berth in Berbera, Somalia, and sailed into the Gulf of Aden as part of the organization's attempt to raise funds for its activity. On the second day of sailing, the ship was fortunate, as the lookout spotted the Ethiopian container ship “The Andinet” which was loaded with food, cement, fuel and other supplies. The rebels immediately proceeded at full speed towards the ship and feverish preparation was made for the raiding of the ship. When The Andinet was within firing range of The Sumanga, the rebels opened fire at the container and, under the cover of the gunfire, two rebel teams advanced in dinghies towards the stern of the ship. The teams boarded the ship, killed all 12 Ethiopian crew members on board and sailed the ship into their home port in Somalia. 23.
The cruel and merciless attack reverberated worldwide. The Prime Minister of Ethiopia
Girma Nagesh was quoted saying “the barbaric actions of the Somali rebels must stop. It cannot stand that countries claiming to be civilized will continue to lend their hand to such atrocious actions. The Ethiopian government condemns the murder of its citizens and calls on all international forums to take decisive steps towards preventing such events from occurring again”. 24.
The attack was reported in great detail in the Eritrean media which praised and approved
of the rebels actions as an important event which would go a long way towards aiding Eritrea in its justified war against Ethiopia. When the president of Eritrea was asked for his comments on the matter he declined to make a statement. 25.
On January 24th 2011 the Eritrean government convened to discuss the difficult situation
facing its country, due to the long and drawn out war of attrition. In accordance with the Chief of Staff’s recommendations, it was decided that it was necessary to take immediate and decisive steps in order to break the stalemate which had ensued. 26.
In this meeting, many different views were contemplated, most of which involved the
deployment of advanced weapons as well as tactics aimed at giving Eritrean forces superiority in 5
the battle field. At the meeting’s close, it was decided that the Eritrean Defense Forces must use all means and measures in its possession in order to produce, through one final and all-out attack, a satisfactory conclusion to the fighting. 27.
In the course of this final effort, the Head of the Eritrean artillery forces Sheva Boom,
decided to employ Eritrea’s stock of cluster bombs against Ethiopian targets. During the shelling, roughly one hundred DPICM cluster shells were fired at a broad and forested land in northern Ethiopia, a known grazing area where a few strategic Ethiopian bases were located. 28. This attack, while failing to produce the victorious outcome the Eritrean leadership had hoped for, brought both sides to the realization that the war of attrition they were engaged in was destroying their economies and infrastructures and had to be brought to a conclusion. Therefore, on January 30th 2011 both sides signed on a cease-fire that was internationally recognized. Under the terms of the cease-fire all hostilities would cease and the troops would remain at the battle lines of that day. 29.
With the cessation of hostilities a situation developed on the ground, in which the
province of Erithiopia, a province which had been part of Eritrea at the beginning of the hostilities, was now within the Ethiopian side of the cease-fire borders. The province, which included three towns and a few small villages, was surrounded by Ethiopian troops, which completely controlled the province's borders and they alone decided who could enter and leave the area. In addition, the Ethiopian military did not allow any aircraft passage above the province. 29.
Nevertheless, the Eritrean Governor of the province remained at his post, and the
municipal day to day life did not change as far as governance and taxation were concerned: the people of the region’s votes were counted in the general elections that took place in Eritrea during this time and its residents were included in the Eritrean Civil Registry. 30.
Due to the war damages and the terrible drought prevailing in the region, food was scarce
and water sources began drying up. Erithiopia, which was disconnected from the general Eritrean infrastructure, suffered more than any other province the region. The situation in the province deteriorated and a severe humanitarian crisis developed, as the waste piled up and 6
sewer ran through the streets. As a result, the inherently weaker segments of society, such as children and the elderly began to die of disease and malnourishment. The people of the region frequently protested against Ethiopian limitations and demanded that they allow free access of people and supplies between the province and Eritrea. 32.
Due to the terrible situation, on April 1st 2011 the President of Eritrea Manoolu Blanick
sent a formal letter to the Prime Minister of Ethiopia Girma Nagesh in which he stated: “Excellency: our government sees the situation in Erithiopia as very troubling. We expect that the Government of Ethiopia, as the direct bearer of responsibility for the situation, take charge and fulfill its international obligations towards the people of Eritiopia and thus prevent deterioration of the crisis. In the absence of such steps we will have no choice but to take legal steps against your government in the International Court of Justice.” 33.
The next day the Prime Minister of Ethiopia replied in a formal letter in which she stated
the following: “Excellency: My government and I regret the humanitarian crisis in the province. However, the blame and responsibility lies firmly on your shoulders. Ethiopia has no obligations towards the people of the province since it is not in its direct and affective control. Moreover, the situation in the area is a direct result of the war which your country illegally started. Therefore I am pleased with your suggestion that we refer this dispute to the International Court of Justice.” 34.
After bilateral negotiations, Ethiopia and Eritrea submitted a written application to the
Registrar of the Court on June 1st 2011. The parties have undertaken to abide by the results of this proceeding.
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35.
Eritrea, the Applicant for the purposes of the application, requests that the court: a. Declare that the Ethiopian attack was a breach of the prohibition on the use of force in §2(4) of the UN Charter. b. Declare that SIFF’s actions are not attributable to Eritrea. c. Declare that the use of cluster bombs was not in violation of international law. d. Declare that Ethiopia is occupying Erithiopia and therefore bears humanitarian obligations towards the civilian population.
36.
Ethiopia, the Respondent for the purposes of the application, requests that the court: a. Declare the Eritrea is the one to have violated the prohibition on the use of force, an act which justified Ethiopia’s response or, alternatively, declare that Ethiopia was acting in self-defense when it attacked Eritrea. b. Declare the Eritrea is internationally responsible for the Somali pirate’s actions. c. Declare that Eritrea violated international law when it made use of cluster bombs. d. Declare that Ethiopia in not occupying Erithiopia and therefore is not responsible for the humanitarian needs of the province's people.
37. Both Eritrea and Ethiopia are members of the United Nations, and ratified the UN Charter and the International Court of Justice Statute. Furthermore, both countries are members of the Hague conventions of 1899 and 1907, the four Geneva Conventions of 1949 and the First Optional Protocol of 1977.
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Initial Suggested Bibliography 1. The United Nations Charter (1947). 2. Military and paramilitary activities in and against Nicaragua (Nicaragua v. United States), judgment, ICJ (1986). 3. Shaw, Malcolm N. International law, 6th edition, pp.1131 and so forth (2008). 4. ILC Draft Articles on State Responsibility with Commentaries, Available at: http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf 5. G.A Res. 2625, U.N. Doc. A/RES/ 2625 (1970). 6. S.C. Res. 1846, U.N. Doc. S/RES/1846 (2008). 7. Ruzza, Tommaso D., "The Convention on Cluster Munitions: Towards a Balance between Humanitarian and Military Considerations?", Military Law and the Law of War Review 47/3-4 (2008). 8. Treves, Tullio, "Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia", EJIL (2009), Vol. 20 No. 2 , 399 – 414. 9. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 168, para 173-177.
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