Clarifying Shabait’s Clarification RE Commission Ruling

In an article entitled “To Clarify Our Understanding,”the Eritrean “Editorial Board of Newspapers” adds further confusion to people’s understanding on the origins of the Eritrea-Ethiopia border conflict of 1998-2000; questions whether it was a “border conflict” to begin with; is mum on the policies and practices of the Eritrean government in inflaming and sustaining the two-year war, as well as the 20-year stalemate that followed it.  If you want to know how you are being played, neither this “For Clarity of Understanding” article, nor any other article written in the last 20 years, has ever referenced the final and binding ruling of the Eritrea Ethiopia Claims Commission (EECC, the body tasked with determining origins of the conflict and the damages associated with it), focusing entirely on the final and binding ruling of the Eritrea Ethiopia Border Commission (EEBC, the body tasked with delineating and demarcating the common border.) Don’t worry, Uncle SAAY has got this and he is here to separate propaganda from history. 

I. Was it a border war?

The Editorial Board begins with “When the TPLF officially declared war on the Eritrean people in May 1998 with huge subsidies and incentives from outsiders, there was no war declared on the part of Eritrea. The TPLF workers have spent a lot of time christening their big goal as ‘border dispute’ – and misleading the naive.”

Of course it was a border war.  I happen to know something about this because I was part of a task force weighing the pros and cons of describing it as a “border war.” First,  President Isaias Afwerki gave many interviews during the period (1998-2000) and in one (I don’t know if it is Financial Times or Independent but I can find out if you insist), he explained it was indeed a border war to journalists mystified by how two very close allies were going to war.  The relationship between TPLF and PFDJ was so close, Eritrea and Ethiopia had mutual defense agreement at the outbreak of the war, a mutual defense agreement that Eritrea benefited from in its 1995 war with Yemen.  But more importantly,  for those who will challenge this argument and force us to employ Nexis-Lexis for that period, is that when the two countries were asked to explain what caused the war, this is what the Government of Eritrea, and its dozen of lawyers argued.  And by a dozen, I mean it literally, and I have to list them here for those who see conspiracies that don’t exist and will accuse them of nor arguing Eritrea’s case well:

• (1) Professor Lea Brilmayer, Co-Agent for the Government of Eritrea, Legal Advisor to the Office of the President of Eritrea;
• (2) Howard M. Holtzmann Professor of International Law, Yale Law School;
• (3) Ms. Lorraine Charlton, Deputy Legal Advisor to the Office of the President of Eritrea Counsel and Advocate
• (4) Professor James R. Crawford, SC, FBA, Whewell Professor of International Law, University of Cambridge; Member of the Australian and English Bars; Member of the Institute of International Law Counsel and Consultants
• (5) Ms. Michelle Costa
• (6) Ms. Julie Frey
• (7) Ms. Diane Haar, Esq.
• (8) Ms. Amanda Costikyan Jones
• (9) Mr. Kevin T. Reed
• (10) Mr. Abraham Tesfay Haile, Esq.
• (11) Ms. Lori Danielle Tully, Esq.
• (12) Ms. Cristina Villarino Villa, Esq.

They made their case and this is what EECC thought of their case.  “In its written pleadings, Eritrea made the following three main defensive assertions: (a) that Ethiopia was unlawfully occupying Eritrean territory in the area around Badme, which was the area of much of the initial hostilities in May 1998, citing the decision of the Eritrea-Ethiopia Boundary Commission of April 13, 2002; (b) that Ethiopian armed militia near Badme carried out forcible incursions into Eritrea in early May 1998 and fired on Eritrean forces on May 6 and 7, killing eight Eritrean soldiers and setting off fighting between small units in the area during the next several days; and (c) that it was Ethiopia that declared war on Eritrea on May 13, 1998. On the last day of the hearing, Eritrea argued that its actions in taking Badme and adjacent areas on May 12, 1998 were lawful measures of self-defense, consistent with Article 51 of the UN Charter, taken in response to the fighting near Badme that began on May 6 and 7, 1998.”

Occupying, incursion, Badme and adjacent areas… all the arguments are about who owns which plot of land.  A border war. If it wasn’t a border war, Eritrea would have made different arguments from the one it did. Unless now, retroactively, all the lawyers were “naive.”

II. Who Started The War?

The Eritrea Ethiopia Claims Commission (EECC), a body whose work is never cited by the Governments of Eritrea, Ethiopia, or Tigray (I will tell you why in a minute) gave a definitive answer to the question of who started the war.

According to the Algiers Agreement, this task was supposed to be undertaken by the African Union (then Organization of African Unity) and Eritrea argued–and this should give you a hint how confident it was of the merits of its case–that EECC has no mandate over investigation into the origins of the conflict. That’s the job of the OAU: a poor continental organization with zero enforcement mechanism.  EECC said, no, it has jurisdiction and proceeded to hear arguments from both sides and its decision will also be final and binding.

Then the Commission went on to methodically strip all the arguments presented by Eritrea as unpersuasive:

1. “The Commission cannot accept the legal position that seems to underlie the first of these Eritrean contentions – that recourse to force by Eritrea would have been lawful because some of the territory concerned was territory to which Eritrea had a valid claim…However, the practice of States and the writings of eminent publicists show that self-defense cannot be invoked to settle territorial disputes [because] border disputes between States are so frequent that any exception to the prohibition of the threat or use of force for territory that is allegedly occupied unlawfully would create a large and dangerous hole in a fundamental rule of international law.”

2. “Localized border encounters between small infantry units, even those involving the loss of life, do not constitute an armed attack for purposes of the Charter. In that connection, the Commission notes that Eritrea did not report its use of armed force against Ethiopia on May 12, 1998 to the Security Council as measures taken in self-defense, as it would be obligated to do by Article 51 of the Charter in case of self-defense against armed attack

3. “The evidence showed that, at about 5:30 a.m. on May 12, 1998, Eritrean armed forces, comprised of at least two brigades of regular soldiers, supported by tanks and artillery, attacked the town of Badme and several other border areas in Ethiopia’s Tahtay Adiabo Wereda, as well as at least two places in its neighboring Laelay Adiabo Wereda. On that day and in the days immediately following, Eritrean armed forces then pushed across the flat Badme plain to higher ground in the east. Although the evidence regarding the nature of Ethiopian armed forces in the area conflicted, the weight of the evidence indicated that the Ethiopian defenders were composed merely of militia and some police, who were quickly forced to retreat by the invading Eritrean forces. Given the absence of an armed attack against Eritrea, the attack that began on May 12 cannot be justified as lawful self-defense under the UN Charter.”

And therefore?

“Consequently, the Commission holds that Eritrea violated Article 2, paragraph 4, of the Charter of the United Nations by resorting to armed force to attack and occupy Badme, then under peaceful administration by Ethiopia, as well as other territory in the Tahtay Adiabo and Laelay Adiabo Weredas of Ethiopia, in an attack that began on May 12, 1998, and is liable to compensate Ethiopia, for the damages caused by that violation of international law.

In literally the first paragraph of their article, the Newspaper Board, is mis-stating the facts about publicly available data because it is 100% sure you won’t read it.  I am 10% sure you will. Here

And this is why you will never hear the Government of Eritrea, or Ethiopia, or Tigray ever speak about the findings of the Eritrea Ethiopia Claims Commission (EECC): because each party did everything it accuses the other of doing.  And you can read about the list of horrors, requiring each side to compensate the other in hundreds of millions, here.

III. Offensives and their Numerology

Ask any Eritrean who lived through that period (1998-2000), whether young or old, and they will tell you there were three Ethiopian Offensives. First Offensive (May 1998); Second Offensive (February 1999); Third Offensive (May 2000.) I probably wrote dozens of articles telling the same narrative. It has a good flow, and it is consistent with (and continuation of) the Offensives narrated during the Revolutionary War (1st Offensive, 6th Offensive, etc.)

But the EECC, whose decision is just as final and just as binding as EEBC, says there was no First Offensive by Ethiopia against Eritrea; there was one by Eritrea against Ethiopia. I don’t expect the newspaper board of State media to make this clarification in an article allegedly entitled “For Clarification”, but the rest of us should. There was no First, Second, Third Offensive. There was an Eritrean Offensive (May 1998)–so offensive, Eritrea was ordered to pay damages for it. This was followed by two Ethiopian counter-offensives (February 1999, to retake Badme).  Finally, there was May 2000 Offensive — to push back any future Eritrean offensives by creating a large buffer zone, according to Ethiopia; no, it is to reoccupy Eritrea, according to Eritreans.  Between the first and the second offensives, Ethiopia filed a complaint with the security council and had its parliament declare a state of war.  The accurate names are May 98 Offensive (by Eritrea), February 99 Offensive (by Ethiopia), and May 2000 Offensive (by Ethiopia.)

But we are not about to change the numbering because every armed forces in the world claims its actions are always defensive, never aggressive. But among ourselves, we should admit that the world defines what we Eritreans did, not what Ethiopia did, as a First Offensive because of (1) the scale of the war (two brigades of regular soldiers, supported by tanks and artillery against lighly armed Tigrayan militia and police), and (2) the fact that our government never notified the UN Security Council.  “They started it; we ended it” is a fine bumper sticker, but unrelated to international law.  Not notifying UNSC is not a “technicality” or “legalism” or “a difference of opinion”: it is international law. Later on, President Isaias Afwerki would say, “I was traveling to Saudi Arabia, I was out of the country when the war was triggered” because his first and last instinct is to protect himself first.  But also to indicate there could not have been the requisite intent to invade.

IV: The Years of No War No Peace

Having failed at occupying Eritrea, says the Newspaper Board, Ethiopia then decided to overthrow the government of Eritrea using quislings but it failed. Well, first, the “quislings” existed before, during, after the fall of Weyane. As the late Seyoum “Harestay” Ogbamichael,  Head of Foreign Affairs Office and later Chairman of Eritrean Liberation Front-Revolutionary Council (ELF-RC) explained to me then in an interview: we were called Fifth Columnists before 1998, and we were called Weyane after 1998 but the fight is, was, and will always be for popular sovereignty.  For those of you asking, “Seyoum, who?” because you can’t find his name in your PFDJ Handbook, he was the guy who enlisted Isaias Afwerki into the armed struggle.  You can read awate.com’s illuminating interview with him here.   Seyoum Harestay’s organization would stage a walk-out from Addis Abeba because it was not willing to take directions from Weyenti.  Some quisling.  The man despised quislings.

The people that the Newspaper Board is calling “quislings” were an Alliance of Islamists, Nationalists from the Revolutionary Era (ELFers) and Ethnic/Regional Rights Federalists. Obviously, the TPLF would want nothing to do with the Islamists as they often transcend borders and may motivate Ethiopian Muslims into an uprising. It also wanted nothing to do with the nationalists (“Chauvinists,” it called them) like Seyoum Harestay’s organization (ELF-RC) who wanted nothing to do with an “armed struggle” because “We want to go to the people of Eritrea with solution and not problems. We believe in political pluralism; we do not believe in military pluralism. Military pluralism is dangerous“.  It had tried to eliminate these “chauvinists” by siding with the EPLF in its civil war with ELF of 1980– a historical fact long denied by both EPLF and TPLF that just a month ago was confirmed by perhaps the highest authority on the subject: General Abrahaley Kifle (commander of ELF’s Brigade 77) who was then with ELF (fighting EPLF and TPLF which he said “came from the direction of Badme”) but is now with PFDJ.  After independence, in 1994, TPLF (at the request of PFDJ) also kicked out ELF-RC members…so the TPLF’s relationship with ELF-RC leadership was, at best, tenuous.  That’s why when Seyoum Harestay died in Addis Abeba, the possibility that they killed him could not be entirely ruled out.

TPLF had no interest in these “chauvinist ELFers” having a leadership role in the opposition. This left TPLF with a niche market of tiny ethnic rights federalists — like De.Me.Ha.E and Se.De.Ge.E–which had been in Ethiopia since the 1980s and were occasional sacrificial lambs, surrendered via Zalambessa to PFDJ during the TPLF-PFDJ honeymoon years of 1991 to 1997. (You can listen to the testimony of a prisoner about this fact here) In short, TPLF had no natural allies among “the quislings” and it spent 20 years trying to create the movement with just the right amount of Tigray-Tigrini flavor that accepts its subservient role to a glorious nation of Tigray with its capital as Axum.  But that movement surfaced only near TPLF’s demise.  Thoughts and prayers.

The Newspaper Board neglects to tell its readers that during the same time, the Eritrean Government hosted every Ethiopian armed group from Gambella and Ogaden separatists, to One Ethiopianists (who didn’t recognize the sovereignty of Eritrea) to Oromo separatists, and their satellite media at considerable expense to Eritrean treasury and, in the end, these groups had no input in the collapse of TPLF/EPRDF or in formation of the Abi Government that followed it.  During the No-War-No-Peace period (2000-2018) Eritrea had the moral high ground, because it had a decision witnessed by world powers (US, UN, EU) but it couldn’t capitalize on it, not just because US-African foreign policy was then, as now, run by “Ethiopia First” neophytes, but because PFDJ didn’t have the diplomatic acumen to navigate around it.  Huge miscalculations in Somalia and Djibouti that ran counter to the prevailing global (including Russia and China) zeitgeist led to a series of self-inflicted wounds and sanctions which served the Eritrean regime’s goal of creating a Permanent Police State.

V. The “Golden Values of Struggle”

The editorial ends with a quote attributed to President Isaias Afwerki celebrating the “values of struggle.” They didn’t quote it accurately, and that’s too bad because it is a great speech.  In English, his statement translates to: “I shall neither fear, nor bow down to threats or use of force! I shall not yield to chicanery or oppression! I shall not sell my values to groveling and freeloading! I am not stressed by adversity, nor defeated by the grueling! I never tire of work, nor am I miserly about pouring my sweat and blood! And until I achieve my goals, I persevere!” In Tigrinya, each line of the mantra is more satisfying than the other, and the audience, thinking it is over, applauds, only to be rewarded by another line, more applause, until it builds to a crescendo:

ብሓይሊን ታህዲዳትን ኣይርዕድን ኣይንብርከኸን፥
ብሸፈጥን ዓሎቕን ኣይርዕምን፥
ብወሽለኸለኸን ብሎቕመጽመጽን ክብሪታተይን ክብረይን ኣይሸይጥን፥
ተጸበበ ኣይጭነቅን፥ ተተረረ ኣይደክምን፤
ረሃጸይን ደመይን ህይወተይን ኣይበቅቕን፥
ክሳብ ዕላማይ ዝጭብጥ ኣይሕለለን

It is commonly understood he writes all his speeches. It definitely will make it to the Collective Words of Chairman Isaias Afwerki—  I am surprised it hasn’t made it for some fundraising event: it is one of the greatest speeches Isaias ever made…about Isaias.  When I first heard it, I thought this is so good, yet so familiar and it hit me: it is what most hip-hop braggadocio lyrics  sound like!  Its Drake Lil Wayne et al: “Last Name, Ever; First Name: Greatest… Like a sprained ankle, boy, I am nothing to trifle with.”  Of course, I immediately mixed it into a song.

The context: it is Independence Day.  Weeks before, Isaias Afwerki had witnessed Ambassador Haile Menkerios on TV.  Haile is a member of G-15 who escaped the fate of his comrades–abduction and disappearance, for 23 years–because he, along with 3 others, was out of the country.  Haile Menkerios was at a post-Abiy organized conference in Ethiopia. By then, Haile Menkerios, had disclosed in an interview that he saw himself more of a construct of the West than Eritrea. And before you gasp, read his resume.  But that is counter to the values of the Eritrean Struggle which has morphed into Eritrean Exceptionalism now.  So, anyway, the Ambassador was at a Prosperity Party-organized conference in Addis, invited there not as an Eritrean but a person with impressive creds at the United Nations.  He was seated with the audience, waiting for his turn to ask questions. Now go back and read the Isaias statement and at his facial expression as he utters his mantra. Look at me, he is saying, in 3 short years I withstood the pressure of sanctions and accusations of crimes against humanity, and there is a new prince in Ethiopia who will do as I tell him. And you are asking him questions and favors!

I remember asking myself: why doesn’t this guy run for president and get elected? All his campaign has to do is run that speech and he would be at least a contender, depending on how articulate his opponent is in just listing the names of the man’s victims. Whether the speech is a testimony of “Isaias-on-Isaias” or whether the speech is a testimony of “Isaias-on-Eritreans”, the mistake the Newspaper Board makes is in assuming it is “values of the struggle”, when in fact is values of Eritreans, nay, humans, whether they were in the struggle, against the struggle, or indifferent to it.

I don’t think I have “Ghedli values” (other than belief in the sovereignty of the country, which is not a “ghedli value”) but I say a variation of the Isaias Statement of Affirmation when the regime and its quislings try to defeat me by reminding me the mighty People’s Front has twice arrested my father (an elder) and accelerated his death; disappeared my niece (a child) for 12 years with its foot soldiers sending me terrifying psychological warfare “news”; tortured her parents  (my brother and sister-in-law) psychologically, and jailed my younger brother (a Warsay, enlisted with the 1st Round) for 11 years now.  This is all supposed to break me into not speaking up about PFDJ crimes? Habesha, please.  ብሓይልን ታህዲዳትን ኣይርዕድን ኣይንብርከኽን!

VI. The Final & Binding Border Ruling

With the exception of the above, what the Newspaper Board said on the matter of the border is accurate. The fact that in 2024, twenty-two years after the ruling, Tigrayans are shocked to discover that some land they were told is theirs has been ruled Eritrean, is the fault of the TPLF. This is not just fault of omission–forgetting to tell its own people it had lost the argument–but a fault of commission: consistently telling its people, at the highest levels of its organization, that (a) not only did we get all the land we asked for, but some we didn’t ask for; (b) that the judges who made the ruling were old men detached from reality and their ruling doesn’t matter; (c) that virtual demarcation is fiction. This is because it couldn’t reconcile in its head how the EECC could say Eritrea started the war, but EEBC would award the lands to Eritrea anyway? Eventually this rabbit hole lead some of them to “Asab is ours, Adulis is ours, Axum Civilization, the agreement is null-and-void”: just throwing everything and hoping something sticks. But now comes the hour of reckoning.

There is nothing in the Eritrea Ethiopia border ruling that requires the two parties to negotiate after the verdict. But there is also nothing in the Commission’s ruling that prevents it, either, as the “old men detached from reality” kept explaining to TPLF. But if the latter is to happen, they kept explaining, it has to be with consent of Eritrea.

But logic and history advises Eritrea not to negotiate (although, if Isaias wanted to, he could snap his fingers and do it and the “nationalists” would quickly toe the line.)  Here is the logic against it: if Tigrayans or Ethiopians won’t accept the ruling of an international agreement they, in advance and in front of many powerful witnesses, said they would comply with and then refuse to, what is to stop them from rejecting another negotiated settlement after an open-ended discussion?  If you haven’t resolved your border dispute with your other neighbors (Amhara) for decades, what is the reassurance that you will resolve the one with us by negotiating in good faith?  The social capital–mutual trust–is just not there.  Prime Minister Abiy Ahmed has pledged he will establish a committee to determine if Eritreans are in Eritrea proper–and the “Eritrea” he has in mind is one which includes territories awarded to it in 2002.  So far, so good: but the man is so changeable he may sing a different song tomorrow.

The Eritrea-Ethiopia common border, unlike any other border in the world, is now mapped in precise co-ordinates, even when the end points of the coordinates have no name. Science has made the controversy non-existent and its only those who have been living a life of ሸፈጥን ዓሎቕን (chicanery and oppression) who are waiting for some game-changer (war?) to shuffle the cards and replay an old game.

VII: Clarifying State Media Clarification

1. It is neither naïve, nor wrong to believe the Eritrea-Ethiopia War of 1998-2000 was a border war.  The Eritrean government said so at the time; and lawyers arguing on its behalf to the commission, EECC, made “border” arguments;
2. Eritrea may say it was provoked and that Ethiopia started the First Offensive, and tell other tales, but according to international law, and the “final and binding” ruling of EECC, Eritrea was held responsible for starting the war both because (a) it never complained about its “self-defense” to the UN Security Council before hand, and (b) the TPLF-started skirmish, even if true, and even if it resulted in death of soldiers and officers,  did not qualify as a war violating UN Charter.
3. Accordingly, Eritrea was fined over 171 million USD for the violations of the jus ad bellum (definition of a “just war”) ie for starting the war, a fact not mentioned by the “newspaper board” editorial allegedly written to clarify issues.
4. More than EEBC (border ruling), it is EECC (a series of decisions on the cost of war, and who is responsible for it rendered over a four-year period (2004-2009) that the two countries could learn from, but they adamantly refuse to heed any lessons from it.  Why? Because the EECC is damning about the behavior of organizations (TPLF, PFDJ) and people (Ethiopians, Eritreans) who take turns bragging about how civilized they are but behave primitively, as the list of atrocities they BOTH committed shows.
5. Mythology always wins over facts in mythological societies. And so it shall remain as long as the media is in the service of advancing the ruling party’s interests instead of the national interest.

If there had been more than just government-owned media spoon feeding pabulum, maybe an alternative source, allowed by the reconstituted Eritrea Press Proclamation No.90/1996 (suspended “temporarily” for 22+ years) would maybe have an editorial by tits “newspaper board” entitled: “To Clarify Matters: war should never be decided by the few accountable to nobody: reinstate the National Assembly.” Long title, yeah, but consider yourself clarified.