6. Inadequate Medical Care in Camps [...]
c. The Commission’s Conclusions
- Despite the substantial amount of evidence and hearing time devoted to medical care in Eritrea’s claim, the Commission had difficulty in determining the availability and quality of medical care in the Ethiopian POW camps. Focusing on specifics did not prove necessarily helpful. For example, the evidence of psychological/psychiatric problems does not prove that Ethiopia failed to provide appropriate care; lengthy captivity can be psychologically very disturbing, and psychological care after repatriation is frequently indicated. The discussion of sympathetic ophthalmia was clearly very narrow. The hospital records submitted by Ethiopia do not establish that all POWs in need of specialized treatment were, in fact, referred to hospitals, but only that some were. Although a few Eritrean declarants complained about insufficient medical staffing, other evidence showed that camp infirmaries were staffed by one or more medical doctors and paramedics; a detained Eritrean doctor was involved in caring for the Eritrean POWs. [...]
- First, in response to questioning, Ethiopia indicated that, to the best of its knowledge, twenty Eritrean POWs died while in captivity in Ethiopia. The Eritrean POW declarants frequently allege, especially with regard to Mai Kenetal (the seriously inadequate conditions of which the Commission discusses above), that deaths resulted from lack of medical attention. As regrettable as each and every death is, the Commission finds that a death ratio of less than one percent – in a total population of some 2,600 POWs, many seriously wounded – does not in itself indicate substandard medical care.
- Second, the Commission was struck by the detailed testimony of the Eritrean doctors who examined the Eritrean POWs repatriated after hostilities ended in December 2000. They were of the firm opinion that these wounded and sick POWs could not have received required medical care. They testified that, of the 359 POWs they examined, twenty-two had tuberculosis – a very high ratio. They also testified that the POWs showed signs of malnutrition, which had adversely affected their health, contributed to the development of tuberculosis and scurvy, and left many unready for necessary surgery until they could put on weight. The doctors also found that nearly one-half of the POWs they examined had fractures that had not been properly treated, evidenced by non-union or mal-union of the bones. Although Ethiopia responded that fractures sometimes could not heal properly for reasons beyond its control, for example, because of unavoidable delays in evacuation, the Eritrean doctors countered that many of the post-repatriation orthopedic operations have been successful; if those operations had been done earlier, while the patients were in Ethiopia’s custody, they could have been even more successful.
- Finally, preventive care is a matter of particular concern to the Commission. As evidenced by their prominence in Geneva Convention III, regular medical examinations of all POWs are vital to maintaining good health in a closed environment where diseases are easily spread. The Commission considers monthly examinations of the camp population to be a preventive measure forming part of the Detaining Power’s obligations under international customary law.
- The Commission must conclude that Ethiopia failed to take several important preventive care measures specifically mandated by international law. In assessing this issue, the Commission looked not just to Eritrea but also to Ethiopia, which administered the camps and had the best knowledge of its own practices. [...]
- In conclusion, on the basis of clear and convincing evidence, including the essentially unrebutted evidence of the prevalence of malnutrition, tuberculosis and improperly treated fractures and the absence of required preventive care, the Commission finds that Ethiopia failed to provide Eritrean POWs with the required minimum standard of medical care prior to December 2000. Consequently, Ethiopia is liable for this violation of customary international law.
- In comparison, Eritrea has failed to prove that the medical care provided to Eritrean POWs after December 2000 was less than required by applicable law. In response to Eritrea’s allegations, Ethiopia submitted considerable rebuttal evidence of the increased medical care it provided at Mai Kenetal and Dedessa from December 2000 through repatriation of the remaining POWs in November 2002. The evidence indicated that approximately forty medical personnel staffed the Mai Kenetal clinic and that some POW patients were taken to a local hospital. The evidence also indicated that POWs with tuberculosis or other contagious diseases were isolated at Mai Kenetal and Dedessa and that, contrary to Eritrea’s allegation, medical equipment was sterilized before each use. With respect to medical care at Dedessa, Ethiopia presented medical records rebutting the specific complaints made in a number of the Eritrean declarations.
- In closing, the Commission notes its recognition that Eritrea and Ethiopia cannot, at least at present, be required to have the same standards for medical treatment as developed countries. However, scarcity of finances and infrastructure cannot excuse a failure to grant the minimum standard of medical care required by international humanitarian law. The cost of such care is not, in any event, substantial in comparison with the other costs imposed by the armed conflict.
7. Unlawful Assault on Female POWs
- Eritrea brings a discrete claim for the alleged unlawful assault of female POWs, alleging in its Statement of Claim that Ethiopian soldiers raped female POWs and, in one case, raped and killed a female prisoner at Sheshebit on the Western Front. The Parties agree that Article 14 of Geneva Convention III, which provides that POWs are “entitled in all circumstances to respect for their person and their honour” and that women “shall be treated with all the regard due to their sex,” prohibits sexual assault of female POWs. [...]
- The Commission finds that Eritrea has not presented clear and convincing evidence of rape, killing or other assault aimed at female POWs. Given the small number of female Eritrean POWs, the Commission has not looked for systematic or widespread abuse of women. The fact remains, however, that not one of the female Eritrean declarants stated explicitly or – more importantly, given the sensitivities – even implicitly that she was sexually assaulted, or that any other female prisoner she knew was assaulted. Some male Eritrean declarants described occasional or frequent screaming from the women’s quarters, but did not (and perhaps could not) observe Ethiopian guards entering or leaving. Several declarants described abuse of women that, although serious in its own right, was unrelated to their gender. Eritrea failed to submit evidence documenting the one rape and murder alleged in the Statement of Claim. Ethiopia defended these claims, in large part, by presenting detailed evidence that there were separate quarters for women in the camps, which were inspected only by senior camp officials in pairs.
- Accordingly, and without in any way undermining its recognition of the particular vulnerability of female POWs, the Commission does not find Ethiopia liable for breaching customary international law obligations to protect the person and honour of female Eritrean POWs.
8. Delayed Repatriation of POWs
- The Commission has determined in this Award that Eritrea’s claims regarding the timely release and repatriation of POWs are within its jurisdiction under the Agreement and Commission Decision No. 1.
- In its Statement of Claim, Eritrea alleged that Ethiopia failed to release and repatriate POWs without delay after December 12, 2000. In its Memorial, Eritrea asked the Commission to “order Ethiopia to cooperate with the International Committee of the Red Cross in effecting an immediate release and repatriation of all POWs....” However, on November 29, 2002, shortly before the hearing in this claim, Ethiopia released all POWs registered by the ICRC remaining in its custody. While some chose to remain in Ethiopia for family or other reasons, 1,287 returned to Eritrea. During the hearing, counsel for Eritrea expressed Eritrea’s great pleasure at this action. The Commission too welcomes this important and positive step by Ethiopia, which rendered moot Eritrea’s request for an order regarding repatriation. Nevertheless, Eritrea’s claim that Ethiopia failed to repatriate the POWs it held as promptly as required by law remains.
- As noted above, Eritrea acceded to the four Geneva Conventions of 1949 effective August 14, 2000, so they were in force between the Parties after that date. Article 118 of Geneva Convention III states that “[p]risoners of war shall be released and repatriated without delay after the cessation of active hostilities”. The Parties concluded an Agreement on the Cessation of Hostilities on June 18, 2000. However, the Commission received no evidence regarding implementation of that agreement and could not assess whether it marked an end to active hostilities sufficiently definitive for purposes of Article 118.
- By contrast, Article 1 of the December 12, 2000, Agreement states that “[t]he parties shall permanently terminate military hostilities between themselves.” Given the terms of this Agreement and the ensuing evolution of the Parties’ relationship, including the establishment and work of this Commission, the Commission concludes that as of December 12, 2000, hostilities ceased and the Article 118 obligation to repatriate “without delay” came into operation.
- Applying this obligation raises some issues that were not thoroughly addressed during the proceedings, in part because Eritrea focused on the return of POWs still detained, which was mooted on the eve of the hearing, while Ethiopia consistently relied on the argument that these claims were outside the Commission’s jurisdiction, a defense that the Commission has now rejected. Nevertheless, given their everyday meaning and the humanitarian object and purpose of Geneva Convention III, these words indicate that repatriation should occur at an early time and without unreasonable or unjustifiable restrictions or delays. At the same time, repatriation cannot be instantaneous. Preparing and coordinating adequate arrangements for safe and orderly movement and reception, especially of sick or wounded prisoners, may be time-consuming. Further, there must be adequate procedures to ensure that individuals are not repatriated against their will.
- There is also a fundamental question whether and to what extent each Party’s obligation to repatriate depends upon the other’s compliance with its repatriation obligations. The language of Article 118 is absolute. Nevertheless, as a practical matter, and as indicated by state practice, any state that has not been totally defeated is unlikely to release all the POWs it holds without assurance that its own personnel held by its enemy will also be released, and it is unreasonable to expect otherwise. At the hearing, distinguished counsel for Eritrea suggested that the obligation to repatriate should be seen as unconditional but acknowledged the difficulty of the question and the contrary arguments under general law.
- The Commission finds that, given the character of the repatriation obligation and state practice, it is appropriate to consider the behavior of both Parties in assessing whether or when Ethiopia failed to meet its obligations under Article 118. In the Commission’s view, Article 118 does not require precisely equivalent behavior by each Party. However, it is proper to expect that each Party’s conduct with respect to the repatriation of POWs will be reasonable and broadly commensurate with the conduct of the other. Moreover, both Parties must continue to strive to ensure compliance with the basic objective of Article 118 – the release and repatriation of POWs as promptly as possible following the cessation of active hostilities. Neither Party may unilaterally abandon the release and repatriation process or refuse to work in good faith with the ICRC to resolve any impediments.
- The Parties submitted limited evidence regarding this claim, a fact that complicates some key judgements by the Commission. As noted, until the eve of the hearing, Eritrea’s emphasis was on the release of POWs still being held, while Ethiopia argued that the whole matter was outside the jurisdiction of the Commission. [...] [T]he Parties, acting with the assistance of the ICRC, began a substantial process of repatriation in both directions promptly after December 12, 2000. Between December 2000 and March 2001, Ethiopia repatriated 855 Eritrean POWs, 38 percent of the total number it eventually repatriated. Eritrea repatriated a smaller number of Ethiopian POWs (628), but they constituted 65 percent of the total eventually repatriated by Eritrea.
- After March 2001, the process halted for a substantial period. It then resumed in October 2001 with two small repatriations by each Party. Eritrea repatriated all remaining Ethiopian POWs in August 2002. This was followed by the November 2002 Ethiopian repatriation noted above. (The only repatriation of POWs prior to December 2000 was in August 1998 when Eritrea repatriated seventy sick or wounded POWs to Ethiopia.) [...]
- The record is unclear regarding the circumstances of the interruption and eventual resumption of repatriations. The record includes an August 3, 2001, press report that the Ethiopian Ministry of Foreign Affairs had stated that Ethiopia was suspending the exchange of POWs with Eritrea until Eritrea clarified the situation of an Ethiopian pilot and thirty-six militia and police officers who it understood had been captured by Eritrea in 1998, but whose names were not included in the lists of POWs held by Eritrea that it had received from the ICRC. Eritrea responded that it would also halt further repatriation of Ethiopian POWs but that it was willing to resume repatriations when Ethiopia did so. [...]
[T]here were several small repatriations of POWs in October and November 2001 and in February 2002, but it seems clear that the repatriation of the bulk of the remaining POWs was held up for twelve months or more by a dispute over the accounting for these missing persons or other matters not in the record before this Commission.
- There was conflicting evidence regarding the details of the pilot’s capture, but it was common ground that he had been captured and made a POW. The Commission received no direct evidence concerning his fate. Eritrea’s Memorial states that “Ethiopia was repeatedly informed about the death of the individual in question by the facilitators in the peace process.” The Memorial does not indicate when Eritrea believes that may have occurred, nor does it provide evidence that it, in fact, did occur. Ethiopia’s Counter-Memorial does not respond to that statement or directly address the fate of the pilot and other personnel. Neither Party offered documentary or testimonial evidence on this point.
- Communications between the Parties concerning the delay in repatriations were presumably transmitted through the ICRC but, unfortunately, they have not been made available to the Commission. However, press reports in the record suggest that, at some point, the dispute may have been narrowed to the missing pilot. In particular, documents introduced by Eritrea indicate that, on May 8, 2002, Professor Jacques Forster, Vice President of the ICRC, stated at a press conference at the end of a visit in Ethiopia that the ICRC was concerned by a “slowdown on the part of both countries” in the repatriation of POWs. However, as of that time, in the ICRC’s view, “Ethiopia was not in violation of the four Geneva Conventions by failing to repatriate POWs.”
- On July 16, 2002, the Prime Minister of Ethiopia confirmed in a press conference that the “stumbling block” to the completion of the exchange of POWs was the lack of response by Eritrea to what happened to the pilot. The next month, the dispute was evidently resolved. An ICRC press release, dated August 23, 2002, states the following:
Geneva (ICRC) – The President of the International Committee of the Red Cross (ICRC) Mr Jakob Kellenberger, has today completed his first visit to the region since the end of the international armed conflict between the two countries in 2000.
During his official visits to Eritrea and Ethiopia, Mr Kellenberger met Eritrean President Isaias Afewerki in Asmara on 20 August, and Ethiopian President Girma Wolde Georgis and Prime Minister Meles Zenawi in Addis Ababa on 22 August.
The ICRC President’s main objective in both capitals was to ensure the release and repatriation of all remaining Prisoners of War (POWs) in accordance with the Third Geneva Convention and the peace agreement signed in Algiers on 12 December 2000.
During his meeting with Eritrean President Isaias Afewerki, Mr Kellenberger took note of Mr Afewerki’s commitment to release and repatriate the Ethiopian POWs held in Eritrea. The release and repatriation of the POWs, registered and visited by the ICRC, will take place next week.
During his meeting with Mr Kellenberger, Ethiopian Prime Minister Meles Zenawi expressed his government’s commitment to release and repatriate the Eritrean POWs held in Ethiopia and other persons interned as a result of the conflict. Release and repatriation will take place upon completion of internal procedures to be worked out with the ICRC.
In both capitals, Mr Kellenberger reiterated the ICRC’s strong commitment to helping resolve all remaining issues related to persons captured or allegedly captured during the conflict.
The ICRC welcomes the decisive steps taken towards the prompt return of the POWs to their home country and to their families, and looks forward to facilitating the release and repatriation they have been so anxiously awaiting for close to eighteen months.
- While Eritrea promptly released and repatriated its remaining POWs in late August 2002, Ethiopia waited three months, until November 29, 2002, to release the remainder of its POWs and to repatriate those desiring repatriation. This three-month delay was not explained.
- In these circumstances, the Commission concludes that Ethiopia did not meet its obligation promptly to repatriate the POWs it held, as required by law. However, the problem remains to determine the date on which this failure of compliance began, an issue on which Eritrea has the burden of proof. Eritrea did not clearly explain the specific point at which it regarded Ethiopia as having first violated its repatriation obligation, and Ethiopia did not join the issue, in both cases for reasons previously explained. The lack of discussion by the Parties has complicated the Commission’s present task.
- Eritrea apparently dates the breach from Ethiopia’s decision in August 2001 to suspend further repatriation of POWs until Eritrea clarified the fate of a few persons who Ethiopia believed to have been captured by Eritrea in 1998 but who were not listed among POWs held by Eritrea. Eritrea argues that concerns about the fate of a relatively few missing persons cannot justify delaying for a year or more the release and repatriation of nearly 1,300 POWs. It also asserts that Ethiopia’s suspension of POW exchanges cannot be justified as a non-forcible counter-measure under the law of state responsibility because, as Article 50 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts emphasizes, such measures may not affect “obligations for the protection of fundamental human rights,” or “obligations of a humanitarian character prohibiting reprisals.” Likewise, Eritrea points out that this conduct cannot be a permitted reprisal under the law of armed conflict; Article 13 of Geneva Convention III emphazises that “measures of reprisal against prisoners of war are prohibited.” As noted, Ethiopia defended this claim on jurisdictional grounds and consequently has not responded to these legal arguments.
- Eritrea’s arguments are well founded in law. Nevertheless, they are not sufficient to establish that Ethiopia violated its repatriation obligation as of August 2001. In particular, the Commission is not prepared to conclude that Ethiopia violated its obligation under Article 118 of Geneva Convention III by suspending temporarily further repatriations pending a response to a seemingly reasonable request for clarification of the fate of a number of missing combatants it believed captured by Eritrea who were not listed as POWs. Eritrea presented no evidence indicating that it sought to respond to these requests, or to establish that they were unreasonable or inappropriate.
- In this connection, the Commission must give careful attention and appropriate weight to the position of the ICRC. As noted above, ICRC Vice-President Forster stated in May 2002 that, as of that time, the ICRC did not regard Ethiopia as being in breach of its repatriation obligation. Eritrea did not address that statement. The ICRC’s conclusion is particularly worthy of respect because the ICRC was in communication with both Parties and apparently had been the channel for communications between them on POW matters. Consequently, the ICRC presumably had a much fuller appreciation of the reasons for the delay in repatriations than is provided by the limited record before the Commission.
- While the length of time apparently required to resolve this matter is certainly troubling, on the record before it the Commission is not in a position to disagree with the conclusion of the ICRC or to conclude that Ethiopia alone was responsible for the long delay in the repatriations that ended when Eritrea repatriated its remaining Ethiopian POWs in August 2002. Consequently, the claim that Ethiopia violated its repatriation obligation under Article 118 of Geneva Convention III by suspending repatriation of POWs in August 2001 must be dismissed for failure of proof.
- However, in view of the ICRC press release of August 23, 2002, and the repatriation of all remaining Ethiopian POWs in that same month, the Commission sees no legal justification for the continued prolonged detention by Ethiopia of the remaining Eritrean POWs. Ethiopia waited until November 29, 2002, to release and repatriate the remaining Eritrean POWs. Ethiopia has not explained this further delay, and the Commission sees no justification for its length. While several weeks might understandably have been needed to make the necessary arrangements with the ICRC and, in particular, to verify that those who refused to be repatriated made their decision freely, the Commission estimates that this process should not have been required more than three weeks at the most. Consequently, the Commission holds that Ethiopia violated its obligations under Article 118 of Geneva Convention III by failing to repatriate 1,287 POWs by September 13, 2002, and that it is responsible to Eritrea for the resulting delay of seventy-seven days.
In view of the foregoing, the Commission determines as follows:
B. Applicable Law
- With respect to matters prior to Eritrea’s accession to the Geneva Conventions of 1949 on August 14, 2000, the international law applicable to this claim is customary international law, including customary international humanitarian law as exemplified by relevant parts of the four Geneva Conventions of 1949.
- Whenever either Party asserts that a particular relevant provision of those Conventions was not part of customary international law at the relevant time, the burden of proof will be on the asserting Party.
- With respect to matters subsequent to August 14, 2000, the international humanitarian law applicable to this claim is relevant parts of the four Geneva Conventions of 1949, as well as customary international law. [...]
D. Findings of Liability for Violation of International Law
The Respondent is liable to the Claimant for the following violations of international law committed by its military personnel and by other officials of the State of Ethiopia:
- For failing to take effective measures to prevent incidents of beating or other unlawful abuse of Eritrean POWs at capture or its immediate aftermath;
- For frequently depriving Eritrean POWs of footwear during long walks from the place of capture to the first place of detention;
- For failing to protect the personal property of Eritrean POWs;
- For subjecting Eritrean POWs to enforced indoctrination from July 1998 to November 2002 in the camps at Bilate, Mai Chew, Mai Kenetal and Dedessa;
- For permitting health conditions at Mai Kenetal to be such as seriously and adversely to affect or endanger the health of the Eritrean POWs confined there;
- For providing all Eritrean POWs prior to December 2000 a diet that was seriously deficient in nutrition;
- For failing to provide the standard of medical care required for Eritrean POWs, particularly at Mai Kenetal, and for failing to provide required preventive care by segregating from the outset prisoners with infectious diseases and by conducting regular physical examinations, from May 1998 until December 2000; and
- For delaying the repatriation of 1,287 Eritrean POWs in 2002 for seventy-seven days longer than was reasonably required. [...]