74. General. Irob Wereda is at the eastern end of the Central Front. Much of the affected area is high, rugged and sparse, and there are few substantial towns. Before hostilities began in May 1998, the population was estimated to be 18,000.
75. Two factors complicated these claims. First, elsewhere on the Central Front, the front lines often roughly paralleled and lay close to what both Parties viewed as the international boundary. Consequently, Eritrean forces were either concentrated inside Eritrea or occupied relatively narrow areas in Ethiopia, sometimes only for limited periods. lrob was different. Eritrean forces were continuously present in large areas for about two years. As a result, Eritrean forces and the civilian population were in regular contact over a long period, giving rise to many allegations of serious incidents and abuses.
76. Second, sovereignty over large portions of lrob Wereda was disputed. The final award of the Boundary Commission placed in Eritrea substantial areas in northwest Irob that were claimed and administered by Ethiopia when the war began. Many claims alleged by Ethiopia arose in these areas.
77. At the hearing, Eritrea argued that the Commission should not address such claims in the context of the Central Front claims, for various reasons. Inter alia, it contended that the alleged offenses involved interactions between Eritrean forces and Eritrean nationals, and hence were outside the Commission's jurisdiction. It was also urged that, because the Boundary Commission determined the territory to be Eritrean, it could not be subject to belligerent occupation by Eritrea's own forces.
78. The Commission's response to such arguments was noted supra at paragraphs 27- 31 in its summary of events on the Central Front. The Commission does not agree that persons should be denied the protections of international humanitarian law because of disputes between the Parties to an international conflict regarding sovereignty over the territory concerned.
79. Eritrea put in little evidence specifically addressing these claims. As with all of Ethiopia's wereda claims, Eritrea contended that Ethiopia's allegations and evidence were too unfocused, and provided too little information regarding the surrounding military conflict, to require or even permit an answer. Hence, Eritrea maintained it had "no claim to answer."
80. The Commission agrees that the evidence supporting several of Ethiopia's claims is insufficient to establish liability. However, as to several important claims, the Commission finds clear, compelling and unrebutted evidence showing patterns of serious misconduct by Eritrean forces. This evidence includes multiple allegations implicating named Eritrean officers.
81. Claims of Physical and Mental Abuse. The evidence shows frequent friction between occupied and occupiers in the occupied areas of lrob Wereda, including frequent insults and verbal abuse. There is no doubt that the situation was psychologically painful and difficult for many. However, the evidence is not sufficient to permit the Commission to make findings of liability for non-violent harassment and verbal abuse.
82. Of much greater concern are numerous accounts in Ethiopia's evidence of acts of violence by Eritrean forces against civilians. Many accounts, including eyewitness accounts, described frequent beatings of civilians by soldiers, often resulting in substantial injuries. More than a dozen accounts refer to intentional killings of civilians by soldiers unrelated to combat. Most of these deaths involved intentional shootings; others resulted from beatings. Many of these declarants claim to have been eyewitnesses. Some accounts converge; two describe the killing of a named civilian in Ayega (Aiga) shot in the back while carrying a beehive. The Commission believes that this unrebutted evidence is sufficient to establish a recurring pattern of excessive violence by Eritrean soldiers against civilians, including frequent beatings and deliberate killings.
83. Rape. Ethiopia presented detailed and cumulative evidence of several rapes by Eritrean soldiers of Ethiopian civilian women in Irob Wereda, in particular in Endalgeda Kebele. The Tigray Women's Association registered twenty-six rape victims in lrob Wereda, which was corroborated in a general manner by the declaration of a government official in Irob Wereda who estimated, on the basis of discussions with women and their families, that thirty-five women were raped by Eritrean troops. One declarant from Engurae1a Kushet, Engalgeda Kebele, testified that he knew eleven women who were raped by Eritrean soldiers in the first week of the invasion in 1998; another testified to eleven rape victims from the same kushet bearing children and described the practice of Eritrean soldiers going door-to-door selecting women to take away. Several clergymen identified both rape victims and Eritrean military perpetrators by name. One priest described complaining, futilely, to Eritrean commanders about three specific Eritrean soldiers.
84. The Commission finds this specific evidence, with cumulative general declarations about unreported, opportunistic rape by Eritrean soldiers, sufficient to support an Ethiopian prima facie case. Eritrea effectively left this case unrebutted. Accordingly, the Commission finds Eritrea liable for failure to take effective measures to prevent rape by its soldiers of Ethiopian civilian women during Eritrea's invasion and occupation of lrob Wereda.
85. Abduction Claims.Numerous unrebutted declarations referred to individuals taken into custody by Eritrean soldiers who did not return. Missing individuals (and those said to be responsible) often were identified by name.36 Many were taken into custody soon after Eritrean troops arrived, but abductions are reported throughout the years of occupation. Some declarants described the disappearance37 of civic leaders and other important people. Others referred to the detention of older men knowledgeable about the area. Some reported young women being taken away.
86. The unrebutted evidence is sufficient to establish a pattern of serious misconduct by Eritrean forces involving the detention and subsequent failure to release or provide information regarding the whereabouts of numerous civilians.
87. Mistreatment During Captivity. Other detained civilians were released, sometimes after relatively short periods of confinement. However, the evidence indicates that prisoners, including many detained for just a few days, were commonly subjected to mistreatment, often including severe beatings.
88. Multiple declarations describe individuals or groups who were detained, severely beaten, and then released, often with scars and bruises, sometimes with permanent injuries. The evidence rarely indicates why these people were detained or other relevant circumstances, and the Commission can make no finding regarding the lawfulness of their detention. However, the recurring, unrebutted declarations indicate a regular pattern of frequent severe beating and other physical abuse of civilians taken into custody.
89. Forced Labor. Article 51 of Geneva Convention IV indicates that civilians can be required to labor on behalf of the military forces of an occupying power, but only if compensated and only "on work which is necessary. . . for the need of the army of occupation." Work supporting military operations is prohibited.
90. Allegations of forced labor in the lrob evidence were far less frequent than claims of physical abuse. Counsel for Ethiopia referred to ten declarations said to show forced labor contrary to international humanitarian law. However, the cited references are brief and provide little detail. A few refer to civilians being made to carry ammunition and other military supplies, particularly in the initial days following the invasion, but these are not sufficient to show a general pattern of prohibited behavior. Weighed in the aggregate, the evidence is not sufficient to show that uncompensated forced labor, or forced labor for prohibited purposes, characterized the occupation to the extent required for the Commission to find liability.
91. Camp Conditions. In addition to its allegations regarding the disappearance and mistreatment of civilians held as prisoners, Ethiopia alleges that numerous civilians were forcibly interned under substandard conditions, particularly in a camp at Mekheta in Irob Wereda and at Hambokha camp near Senafe, Eritrea. Claims concerning Hambokha are dealt with supra at paragraph 69. Ethiopia's declarations include descriptions of harsh camp conditions.
92. While there is no doubt that conditions at Mekheta were harsh and difficult, the evidence is not sufficient to sustain a Commission finding that persons were unlawfully held there or that the camp failed to meet international standards.
93. Indiscriminate Shelling. As in the other weredas, Ethiopia referred extensively to Eritrea's use of artillery, both at the time of the initial invasion and subsequently, to shell adjoining areas. However, legal analysis of these claims is possible only if they can be related to ongoing military operations. The available evidence did not give the Commission sufficient basis to assess whether artillery fire during the invasion or subsequently intentionally targeted civilian objects, was indiscriminate or otherwise violated international humanitarian law rules.
94. While some declarations alleged shelling of locations where there was no armed resistance, others frequently refer to the presence of armed militia. Several refer to successful local defense by the militia; some describe situations where artillery was used only after the militia successfully turned back initial Eritrean attacks. There are also declarations claiming that there were no Ethiopian forces in an area, but also indicating that there were Eritrean casualties there. These claims must be dismissed for failure of proof.
95. Landmines.As with other weredas, the evidence indicates that Eritrea made extensive use of anti-personnel landmines, but it does not demonstrate a pattern of their unlawful use. For liability, the Commission would have to conclude that landmines were used in ways that intentionally targeted civilians or were indiscriminate. However, the available evidence suggests that landmines were extensively used as part of the defenses of Eritrea's trenches and field fortifications. Thus, the declarations citing landmine use also frequently refer to the presence of Eritrean trenches in the area/kushet concerned. In principle, the defensive use of minefields to protect trenches would be a lawful use under customary international law.
96. Looting. Ethiopia alleges, and the evidence confirmed, frequent and widespread acts of theft and destruction of civilian personal property by Eritrean forces during the occupation.
97. There are numerous unrebutted accounts of widespread thefts by Eritrean soldiers of livestock, the most common and important form of wealth in rural Irob. Numerous declarations describe Eritrean forces seizing large numbers of animals. Eritrean soldiers are described slaughtering and feasting on civilians' sheep and goats; other accounts tell of stolen livestock being collected and herded back to Eritrean rear areas. The Commission encountered only one reference to Eritrean soldiers ever paying for livestock.
98. There were fewer allegations of thefts of sewing machines and other household goods by Eritrean soldiers while civilians remained in their homes. However, the many civilians who left their homes, either fleeing behind Ethiopian lines or being placed in IDP camps, commonly returned to areas previously controlled by Eritrean forces to find all of their property looted, including doors, windows and other recyclable house parts.
99. The evidence also demonstrated frequent and widespread acts of theft and destruction of public and community property in Irob, involving notably churches, schools and governmental offices. Much of this also occurred while the civilian population was absent at Hambokha Camp or other locations away from their homes. However, it occurred while Eritrea was the Occupying Power of the area and was responsible for maintaining public order. Accordingly, the Commission believes it is appropriate to find Eritrea liable for these losses.
100. Other Claims.The evidence is not sufficient to establish liability concerning several other types of claims asserted by Ethiopia. There is insufficient evidence to establish a pattern of conduct by Eritrean forces involving the unlawful transfer of civilians to Eritrea, forcible adoption of Eritrean nationality, or the destruction of objects indispensable for the welfare of the civilian population. The allegations and evidence of destruction of environmental resources also fall well below the standard of widespread and long-lasting environmental damage required for liability under international humanitarian law. ______________________________________________________________
36 Various declarations implicate a Colonel Shifa in these and other events. Two hold him responsible for fifty abductions. Another accused Shifa and named subordinates of abducting people in the night, claiming that Shifa took him and others to a place where they were forced to work on a road and/or were severely beaten. Another alleged that officers under Col. Shifa's command committed rapes and were not punished.
37 In using the term "disappearance," the Commission does not mean to imply that the missing individuals were killed while in custody. It received no evidence supporting such a finding. The Commission simply has no knowledge regarding the missing persons' whereabouts or fate.
