Aklilu Habtewold: in the Footsteps of A Great International Law Jurist

Disqualification of Lauterpacht, Nullification of the Algiers Agreement, and Rejection of the Decision of the Border Commission

By Tecola W. Hagos

October 30, 2003

I often wonder what the late Prime Minister Aklilu Habtewold would have done under the type of difficulties Ethiopia is faced with at the present moment. Although the question popped in my head with some mild form of curiosity almost a year ago, it has now become an obsession with me trying to see almost everything Ethiopian through the eyes of Aklilu Habtewold, a man I gradually learned to admire and honor as the greatest Ethiopian jurist of international law. I studied the outstanding book by Ambassador Zewde Reta [Ye-Eritreia Gudaie 1941-1963, in Amharic, Addis Ababa: Central Printing Press (1992)], and the records of most of the hearings at the United Nations dealing with the disposition of the matter concerning the ex-colonies of Italy (Eritrea, Libya, Somalia) that provided me with material extremely helpful in formulating my ideas on the independence of �Eritrea� and on the debacle thrown in our faces by the Border Commission and the United Nations Security Council at the present time.

It is to be recalled that the West betrayed its covenant to the independent and sovereign nation of Ethiopia in 1935, and once again does it allover again in our own time. The West put sanction against Ethiopia the very victim of Italian aggression in 1935-1941. The West in short sacrificed the sovereignty and territorial integrity of Ethiopia in order to appease the colonial ambition of an upstart European nation, Italy, which came into being as a unified state only in 1861 compared to Ethiopia that has a history of an independent Empire of thousands of years. I am hoping this article would do to all patriotic Ethiopians what my reading of a rather huge volume of writing has done for me--enhance our perception of Ethiopia�s cause and claims of sovereignty and territorial integrity that legitimately includes all of historic Ethiopia.

A careful analysis of the speeches of Aklilu, as well as his report and his memo of request to Emperor Haile Selassie for instruction, revels a man who was very much in full control of what he was doing. Even though the political side of the equation at that time was far more important than the �law of nations� that has been twice breached resulting in two World Wars, I admired the fact that Aklilu based his judgment on principles of international law dealing with sovereignty and territorial integrity of states rather than political expediency. Within the difficult autocratic government structure of Ethiopia, where one�s safety and career is dependant on the correct daily reading of the Emperor�s mood and inclinations, it is quite remarkable that Aklilu succeeded to carry out most of his convictions from such a long distance. Even though Aklilu had a great support system from his older brother Mekonnen Habtewold Haile Selassie�s greatly trusted bureaucrat, and Tsehafi Te'ezaz Wolde Giorgis who soon fell out of favor, if it were not for his personal integrity, nothing would have shielded Aklilu for long from the Emperor�s displeasure in a palace full of intriguers and saboteurs. It is Aklilu�s youth, and unique personality of absolute devotion to our mother-land in his four year mission among the great political sharks of the world that really captured my attention and imagination.

The murder of Prime Minister Aklilu Habtewold in 1974 by the Military Regime has cast a long shadow on the life of the State of Ethiopia to this day. To a great extent, I believe our current problem of being unable to garner international support and respect in our time of great need has to do with that single tragedy of the brutal murder of sixty high government officials of Ethiopia carried out by the Derg in 1974. Mengistu Hailemariam as the main force and his group of NCOs have harmed us Ethiopians more than any other people or incident in Ethiopian history. Not even the treasonous Meles Zenawi and his government can match that harm. Of course, we hear all the time from Mengistus�s apologists who never tire from telling us that Mengistu was a nationalist who spent tremendous energy to hold the country together. Such accolade to a leader who run away carrying millions in a handbag at the first sign of trouble is quite demeaning to us all. The more important fact is that it was precisely Mengistu�s bulldozing approach that widened the gulf between the people of �Eritrea� and the rest of us that ultimately resulted in the independence of �Eritrea� and the ascendance of Meles to power. It is Mengistu�s brutal murder of sixty high government officials, Ministers, Minister of States, and two Prime Ministers with great world wide recognition for their statesmanship and seniority that hardened the West, as well as some developing countries around the world, against Ethiopia.

If it were not for the ground breaking Book of the sage scholar Zewde Reta, most of us would have simply forgotten the irreplaceable and genuinely great body of work of Aklilu Habtewold both as an international law jurist and as a talented statesman of great depth and scope. I doubt much that any of us would have taken the trouble to search out the works of this great man on our own from international archives and appreciate the quality of the great fight he mounted on behalf of Ethiopia. I cringe to think of what we have done to such a man. The news I heard in prison was that when Mengistu�s executioners came at him with their guns blazing, he simply stood quietly erect, tall and proud, and was mowed down with multiple machine guns rounds without saying a single word. Every time I read his speeches that he delivered with vigor at the United Nations, this later image of a white haired dignified lone man facing his fate (in the hands of Mengistu�s rabid executioners) with courage comes to my mind and haunts me with excruciating pain.

I remember the many demonstrations I attended when I was a student at HSIU from 1965 to 1971. I regret our imbecilic condemnation of people like Aklilu Habtewold in those demonstrations. I doubt that my fellow students and I would have been that judgmental had we known what individuals like Aklilu Habtewold have done for Ethiopia. I blame the system of censorship and the stifling absolute power exercised by the Emperor that denied us access to our own history and the history of great Ethiopian men and women that led us into such demonstrations of ignorance. The newspapers, the radio, and later the television were only reporting about the activities of a precocious Emperor. We hardly knew anything about what other Ethiopians, officials or otherwise, were doing in the promotion of the interest of Ethiopia. As students, with such scanty knowledge of our own history, we were very easy targets for subversive underground radicals in the pay of the Soviet Union and Arab nations who manipulated us into such immature radical student movements that ultimately was the cause of the politicization of the military that overthrew the Emperor and his government.

Aklilu�s mistake was that he overstayed in his political life. Rather than moving on to becoming a world class jurist, he was caught in the web of power politics where the new intellectuals, contemporaries of Aklilu, were hoping to replace the aristocracy by a new form of bureaucracy. Aklilu should have left the service of the Emperor after the Emperor�s own Bodyguard�s attempted to overthrow the Emperor in 1960 failed. Aklilu�s decline actually started in the aftermath of the ill conceived OAU conference. He never recovered his greatness as a jurist or as a politician.

With hindsight being perfect, I have only contempt for our vulgarity and pity for our ignorance, and utter anger at our student leaders who herded and drove us into presumptuous movements and demonstrations of the 1960s. What a farce and contemptible immature things we have done is for history to judge us. However, at least in my humble judgment, rather than build our nationalistic patriotic psyche, what we did was nihilistic and disdainful of our Ethiopia. We marched out on the streets screaming about the ill treatment of Ethiopians and the famine, the lopsided land ownership et cetera and go back to our dorms and kept dreaming about a life of luxury. We were very much incapacitated by our social milieu, by our intellectual limitations, and by our poverty. Thus, without an understanding of the inner working of our traditional government structure, there was very little of substance that we ever contributed to our society. We never truly identified the problems Ethiopians were faced with. We never realized that we were the main problem--with our stale imagination of life of great affluence and comfort, we ended up producing nihilistic and destructive individuals the likes of Mengistu and Meles, individuals who never should have been allowed to climb the ladder of power.

III. STRATEGY V. TACTICS IN THE UNITED NATIONS 1945-1949

Aklilu Habtewold was a world class international law jurist first and foremost. His grasp of international law principles, his identification of political layers surrounding every international problem facing him at the United Nations, and his vast knowledge of the history of Ethiopia and that of the world is truly astounding. I have read his speeches at both the London and Paris Peace Treaty conferences and also at the United Nations in different committee/commission and in the General Assembly with awe and fascination. His presentation and impromptu replies are great examples of a superb mind at work under enormous pressure of time and political intrigue. He stood firm on principles and his own personal convictions. His personal integrity and loyalty to the cause of Ethiopia was never matched by anybody then or now. He was the personification of a great patriot and a visionary nationalist.

He was probably the youngest and most talented jurist to be involved in the creation of a new international organization�s structure�the United Nations. He was barely thirty five years old when he was given the great task of representing Ethiopia in 1945 at the creation of the new United Nations in the wake of the League of Nations disastrous failure. He discharged his duties with impeccable thoroughness and intelligence where he matched the talents of jurists twice his age such as the Mehtas, and the Cassines of the World. When I reflect back on my own life, and the lives of several men and women of my generation, I am appalled to realize how immature and cursory our scholarship was at similar age with that of Aklilu. It is an absolute fact that our work in general was amateurish, and our general political out look so narrow and at times childish compared to that of Aklilu Habtewold and his generation of several exceptionally talented people.

The first serious challenge to the young Aklilu as a lawyer was getting Ethiopia to be invited to the Peace Treaty Conference involving Italy and its former colonial territories. The reason the Peace Treaty with Italy was important was due to the fact that the fate of the ex-colonies of Italy (Eritrea, Somalia and Libya) was being decided. Akililu mounted great legal and political lobbying and presentations to the Four Super Powers. His approach illustrate tremendous maturity and understanding of the personality of each official he approached.

Aklilu�s mission was to establish beyond any color of doubt that Ethiopia had (and still has) legitimate claims to its former territories of the region now called as �Eritrea� and �Somalia.� At the London 1945 conference, Ethiopia was not allowed to present her case, but invited to submit in writing her grievances and her claims. Italy has campaigned effectively to exclude Ethiopia from being a member of the conference and also to reject any written presentation of her legitimate claims at that Committee hearing. The setting of barriers against Ethiopia from presenting her claims and views directly as a member of the Peace Treaty conferees was tantamount to excluding Ethiopia as a party to the peace treaty. What Aklilu did was to have first Ethiopia declared as a legitimate party by having the cut of date for those countries deemed to have fought Nazism to start at the time of Italy�s attack of Ethiopia in 1935 rather than 1941!

If you believe that Aklilu Habtewold was simply serving Emperor Haile Selassie and promoting his own self interest, you really need to go back and read his presentations. This is not a man who is just serving an Emperor or just pursuing some personal fulfillment, but a man driven by the purest of all passions--the love of one�s country. In the five years he spent representing the interest of Ethiopia at the creation of the United Nations itself, and later taking up Ethiopia�s legitimate claim on Eritrea and Somalia he poured all of his soul, talent, and emotion. Thus, my criticism of some of the tactical errors mentioned here in under in no way should foreshadow the contribution of Ethiopia�s greatest international law jurist.

A number of Aklilu�s contemporaries and some members of the aristocracy had blamed him for not securing the draft resolution in the Third General Assembly that incorporated the ideas of England and Italy (Bevin-Sforza Draft) whereby Ethiopia�s claim would have been met to a great extent. But accepting that Draft meant also accepting Italy as the trustee of its ex-colonies of Somalia and Libya. Aklilu was accused by several Ethiopians around the Court that he antagonized Britain unnecessarily, and did not cultivate good close relationship with the United States. In the first place, we must understand the ideas of that draft resolution of the Third General Assembly. The idea was to return all of the highland area of �Eritrea� settled by Christians and the Afar Coastal territories to Ethiopia and unite the Moslems and the low land area to the Sudan, which was being administered by the English. Ethiopia�s claim over Somalia was to be denied and Italy was to be authorized to administer the area. That was the main point of the dispute. Aklilu in speech after speech made it absolutely clear that Ethiopia as a matter of principle opposed returning any colonial territory to Italy. To hold otherwise was unthinkable after the aftermath of such horrendous atrocities committed by Italy on both civilian and military Ethiopians during the war and the occupation from 1935 to 1941.

I would have said and done exactly what Aklilu did. However, I would have a number of tactical fall-back schemes in place in case I needed them as a backup. I would have prepared a list of names of all Italian politicians and military officers who were involved in the Fascist war and those who committed atrocities including the Yekatit 12 Massacre against Ethiopians. I would have closely monitored and studied the Nuremberg Trials and the Japanese Trials that were underway at that time. I would have started similar procedure in Ethiopia. I would have drawn a list of charges against such Italian officials especially those who were in the government of the so called �New Italy�. The Ethiopian Judiciary at that point was infiltrated by the British; however, it would have not been difficult to create a special department for that purpose.

Since the Nuremberg trials were underway Ethiopia�s effort of charging former Fascist officials for war crimes would have the desired effect in drenching Italy�s growing fire of ambition with cold water of infamy and war crimes of genocide and crime against humanity. That would have effectively shutdown Italy and its allies like France, Argentina, and Soviet Union from their pursuit of frustrating Ethiopia�s claim, which they freely implemented during the Commission hearings and at the General Assemblies.

Because Aklilu had no fall-back system that would have reinforced his strategic goal to incapacitate Italy, France, Pakistan, or Argentina from doing anything of import on the world stage, his constant attack on Italy, France, Pakistan, or Argentina had no venom. Even though Aklilu�s strategy of attacking and undermining the claims of Italy on its ex-colonies was absolutely the right strategy, Aklilu failed by not developing effective tactics. Even his effort to influence Central and South American leaders by making a hastily organized visit was very clumsy and an ineffective method; at any rate, it was a very late effort in a place that was a strong hold of escaped ex-Nazis and Fascist loyalists soon after or around 1944. I am assuming that the Emperor was not involved in some kind of shady deals through backdoor channels with any of the main players and Italy.

The literature of the time that I read does not show whether there was comparable tactical procedure in place in support of the main strategic objective on the political front by the Imperial administration. The role played by the Emperor was a timid one, he seemed not to direct policy but rather echo the ideas of his subordinates specially those who were the most vocal in invoking his name to their own ideas. We could observe that form of interaction between Haile Selassie and Wolde Giorgis even with Aklilu as reported by Zewde Reta in his books. I do not see a degree of understanding and involvement I would expect from a Head of State and Government where a very important territorial claim is at stake in the activities of the Emperor. He seemed to have allowed a degree of latitude to a rather young lawyer, albeit a very talented and patriotic one, a mission that should have been handled by a far older and more experienced individuals. For example, either Belaten Geta Lorenzo or Blata Efrem Tewoldemedhin would have fitted the role easily. But the same force that succeeded to oust Wolde Giorgis was also at work to promote Aklilu at a much higher post as a Prime Minister.

One of the recurring problems of Ethiopian officials is their reading of foreign officials by using their own relationship to the individual in power. As a result Ethiopian officials have been at a great disadvantage in assessing the policy of other governments. Ethiopian officials see everything in terms of personal relationship and give scant attention to foreign governments official policies as independent factors from personalities in the power structure of such nations. Even Aklilu, a person reputed of westernized views, was not able to escape that trap; he too on several occasions has looked to the personality of the individual diplomat he is dealing with rather than objectively evaluate the interest of the nation that individual is representing. He was mistaken about the French Representative De Murvilles, about the Italian Representative Sforza, the Argentine Representative Arce et cetera.

This lack of gestalt outlook of Ethiopian officials is a debilitating weakness that has handicapped Ethiopian political and administrative development to this day. Our government officials premise their reasoning based on a fallacy that if they are �nice� and �respectful� of individual representatives of foreign governments (policies), such foreign diplomats will be able to change the policies of their respective governments that may have been harmful to Ethiopia. If things did not go the way Ethiopian officials want, such Ethiopian officials will first and foremost accuse officials of such nations of corruption, bribery et cetera rather than examining their own errors or shortcomings.

The nature of the Government of Emperor Haile Selassie and his personality have also contributed greatly to the problem Ethiopia was faced with in its claim of Eritrea. To begin with, Ethiopia�s so called �backwardness� was used as a justification for mounting a war of conquest on Ethiopia by the Fascist Mussolini. The same reason was repeated by representatives of the �new� Italy and its supporters in an effort to undermine the legitimate and historically supported claims of Ethiopia. Haile Selassie�s appointees were politically gelded, without the possibility of generating effective policy nationally or internationally.

When one is engaged in political and diplomatic duel one must think and act like a great general. In the words of Sun-Tzu, �Thus it is said that one who knows the enemy and knows himself will not be endangered in a hundred engagements. One who does not know the enemy but knows himself will sometimes be victories, sometimes meet with defeat. One who knows neither the enemy nor himself will invariably be defeated in every engagement.� [Sun-Tzu, THE ART OF WAR, Trans. Ralph D. Sawyer, (1994), 179]

I have read in many articles written by �Eritreans� defending the independence of �Eritrea� by invoking that Aklilu Habtewold was in support of Federation and against any other form of relationship with �Eritrea.� That is a misreading of the views of Aklilu. What Aklilu was aiming at was a legal procedure with good timing to be observed by the Ethiopian government about changing the status of Eritrea as handed down by the United Nations General Assembly Resolutions. If we approach the issue on technicalities i.e., legal issues, the role given to the General Assembly to decide on the fate of Eritrea was beyond its competency, it should have been the Security Council�s directed �resolutions� that should have been sought by the parties involved. Such defect cannot be remedied by simple lapse of time.

Aklilu would have insisted that the independence of Eritrea was illegal since it was achieved by force of arms in collusion with another Ethiopian rebellion group. He would have objected to the admission of �Eritrea� to the United Nations as a member state since Ethiopia has legitimate interest and historical rights that need be satisfied. In other words there would have been negotiation and maybe a submission of certain legal issues to the ICJ. He never would have agreed to Ethiopia losing its Afar people, Ethiopian Afar coastal territories, the Red Sea territorial waters and islands.

It would have seemed also awfully presumptuous to Aklilu to bring in arbitration tribunals on matters of such gravity as was the mistaken case of the establishment of the Arbitration Commission in 2000 to deal with issues that ought to be legally seen as the exclusive rights of States represented in the Security Council. Moreover, if issues involving legal expertise were raised, there is a body created for such purpose within the United Nations system, the International Court of Justice (ICJ) whose members are appointed/elected by United Nations Member States. The Arbitration Commission is simply a glorified scheme created by private lawyers who are paid like all lawyers by the case they handle. It has no special status other than the fact that of resembling a law office created by private practitioners in their pursuit of their career and earning a living. The international jurists who are members of the ICJ who are appointed/elected to office are not such lawyers. As far as the arbitrators on the panel of an arbitration commission, such as the Ethiopian-Eritrean Arbitration Commission, are concerned, the standard of scrutiny, the line of authority from which they derive their power is not of the same level or depth as those of the members of the ICJ. Aklilu would have easily seen the transient nature and lightness of such Arbitration Commission, and he would never have agreed to such a setup and entrusted the fate of a nation to such hired guns.

It is quite shameful for all parties involved in the border dispute between Ethiopia and �Eritrea� that they would dare conspire to deprive millions of Ethiopian Citizens to lose their citizenship, their ancestral homes (for some a home that they have occupied longer than the discovery of America by Columbus, and to a few even before there was a Europe), and the territory of a Sovereign nation that was in existence as a State when the ancestors of the Arbitrators were still living in clan caves. Aklilu would have pointed all these and more from his reserve of knowledge of the history of Ethiopia and that of the World.

The Arbitration process Meles Zenawi agreed to in 2000 by signing the Algiers Agreement was its �first� experience with arbitration at the Permanent Court of Arbitration. It is not that difficult to know that boundary delimitation and demarcation would be excruciatingly difficult specially in trying to separate a people with a long history (except for a brief interlude by colonial occupation of Italy). Thus, even  notwithstanding the old concept of extraterritoriality of embassy grounds, ownership under. Such a monumental issue of boundary delimitation and demarcation should never be taken with such cavalier attitude as was the case with the Ethiopian government officials. Ethiopia is not even a party to the 1899 or the 1900 multilateral treaties that created the Permanent Court of Arbitration under whose umbrella several tribunals and commissions dispose of controversies between states and states and/or states against private interests. By contrast �Eritrea� that barely gained independence a few years back was a member (1997) as signatory of the 1899 multilateral treaty. It is important to remember the fact that �Eritrea� already had set the stage for the present controversy of boundary delimitation between itself and Ethiopia by going to war first with Yemen and then going to an arbitration using the system of the Court of Arbitration where major concessions that would have protected Ethiopia�s interest were given away in anticipation of laying

background manufactured �facts� that could be used against Ethiopia later. For example, the emphasis that was placed on the Ottoman �occupation� of the region both in Boutros Ghali�s fictional report in the name of the United Nations and in the so called finding of facts of the Arbitration Commission, in fact was a tiny area in Massawa where the people running the port were loyal to the Ethiopian Emperors intermittently because the Ottoman�s would mount incursions to the port demanding tribute as seafaring power. At any rate, such situation was limited to the port of Massawa and vicinity, a tiny part of the Ethiopian Empire. The Eritrea-Yemen Arbitration Tribunal in fact noted the fact that Ethiopia�s historic rights were not offered as part of the supporting claims on behalf of �Eritrea� against Yemen�s claims of Islands that were part of Ethiopia for all historic time. [See Eritrea v. Yemen Arbitration Decision]

No matter how talented the Ethiopian officials are in handling the current controversy, the fact of the matter was/is that they had absolutely no experience dealing the complex procedure or processes under the Permanent Court of Arbitration and all related rules and procedures of arbitral tribunals. Of course, they have often made statements that they were being assisted by world-class experts in handling the arbitration. This is no different than an ox being lead to a slaughter house claiming that it is being led by experts in butchery to the slaughter house; thus, it is in good hands. Would Aklilu have agreed to a process that is blatantly stacked up against the interest of Ethiopia?

Aklilu, first of all would have objected to having Anthony Lake of the United States broker any peace agreement, or anybody else who had such strong ties with the formulation of the policy to break up Ethiopia and deny it its historic coastal territories, islands, and territorial waters. Second, he would have concentrated on the OAU/AU as a vehicle for turning the diplomatic debacle that Ethiopia suffered along other African nations due to the brutal development of interethnic agitation and massacre through out Africa in the last thirty years.

Had Aklilu been confronted with the type of mess the current Ethiopian leaders have lead us into, he would have taken clear and precise steps to remedy the situation and save Ethiopia from further degradation and generational economic and political handicap. I must point out also he may not have used strong or �vulgar� words. As a polished diplomat, he would have made his point effectively with finesse.

There is no halfway engagement when one is questioning the validity of the decision of the Arbitration Commission. One has to pull out all kinds of attack against an illegal and corrupt decision that is aiming to landlock and destroy the oldest independent country in the world. Ethiopia is faced with all kinds of enemies, such as the United States lead block, the Saudi Arabia lead block, the Pakistan lead Asian block, the Russian block, and Egypt lead African Moslems block. By just looking the list of the enemies of Ethiopia one may shudder with overwhelming dread. However, one need not be scared of the evil forces stacked against a righteous Ethiopia, for evil has no staying power. Ethiopians are fighting for human rights, territorial integrity, sovereignty, and their survival.

Aklilu would have presented several grounds on which the Algiers Agreement ought to be declared null and void by Ethiopia. There are also solid legal and policy reasons to reject the decision of the Arbitration Commission. However, two other devastating reasons for the rejection of the decision of the Commission, he would have withheld from discussion in this article in order to avoid warning the Commission members and all other anti-Ethiopia forces from tampering with evidence, destroying documents, and dressing up after the fact diaries, assumptions and ideas. The Commission as a whole is not above board from such corruption and unethical behavior.

Brownlie, an international law jurist of great depth and notoriety, pointed out the principle of Jus Cogens that states that there �are rules of customary law which cannot be set aside by treaty or acquiescence but only by the formation of a subsequent customary rule of contrary effect.�[Brownlie, Principles of Public International Law, 515.] The difficult task faced by the Vienna Conference on the Law of Treaties was to draft provisions that would adequately retain the principle of Jus Cogens extracted from customary international law and practices. In fact, McNair asserts that it is easier to �illustrate these rules than to define them.� [McNair, Lord, The Law of Treaties, Oxford: Oxford University Press, 1961, 214.] The first problem was to establish whether there are in fact peremptory norms of general international law. Some jurists consider the concept of Jus Cogens as a recent development of a version of �public Policy� [Elias, T.O. The Modern Law of Treaties, Leiden: A.W.Sigthoff, 1974, 177. In Osca Chinn Case (1934)P.C.I.J., Series A/B, No. 63, pp134-36, 146-50, the Court introduced the concept of international public policy.] with international dimension. However, �according to some authors, some international public policy has always existed.� [Sztucki, Jerzy, Jus Cogens the Vienna Convention on the Law of Treaties: A Critical Appraisal, Wien New York: Springer-Verlog, 1974, 8.]

Article 53 of the Vienna Convention on the Law of Treaties codified the well established principle of Jus Cogens in no uncertain terms as follows:

�Article 53: Treaty Conflicting with Peremptory Norm of General International Law (Jus Cogens)

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purpose of the present convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.�

The Algiers Agreement at its time of signing preemptively obligate Ethiopia under defunct, long dead, and supplanted international instruments, with dubious validity even at the time of their presentations in 1900, 1902 and 1908, to cede millions of acres of land and coastal territorial waters and islands dispossessing its own citizens or driving them of their ancestral homes, acts that would violate all fundamental principles of human rights incorporated in the Universal Declaration of Human Rights, the Charter of the United Nations and numerous General Assembly Resolutions. [German Settlers in Poland, (Advisory Opinion) 10 September 1923, PCIJ Series B, No. 6, at 36.]

If we accept the fact that anything agreed to by heads of governments is valid, we run into all kinds of absurd situations. This is one reason why the principle of Jus Cogens evolved. Imagine a situation where two dictators agreed on a treaty that will allow one nation to use some citizens of the other nation as slaves. How about selling a piece of territory as the Czar of Russia did selling Alaska to the United States? Such an act of alienation of the territorial integrity of a sovereign state would have been considered illegal, as some still think the Alaskan deal is still illegal. The case is an extreme situation that clearly illustrates the problem. Any person will object to such an arrangement because such agreement violates fundamental human rights and principles on sovereign power. The Alaskan purchase of land and that of the initial phase of the Rubattino Steamship Company in 1870 purchase of land in Assab (Ethiopia) and passing it to the government of Italy later, confused simple ownership of land, which anyone person or corporate entity including other nations can exercise under the power of the granting sovereign state if its municipal laws permits, with the concept of sovereign power. When an individual or an entity owns property under the sovereign power of a people constituting a state, such as Ethiopia, irrespective of the fact of the personal status (citizen, foreigner, immigrant, male, female, single, married, et cetera) or corporate status (corporation, foreign governments, representatives of charitable or non-charitable organizations, et cetera) of that individual or entity, such ownership is exercised at the pleasure of the granting Sovereign Power (in this case the People of Ethiopia as constituted as the State of Ethiopia). Thus, ownership under the sovereign umbrella of a legitimate nation-state does not allow the fabrication or creation in any owner of real property that even remotely resembles �sovereignty� or �sovereign power.� We can see how sound the principle of Jus Cogens is, and also how valid it is to our case under consideration. What the Algiers Agreement created is a legal anomaly that cannot be sustained under any principle of international law. There is no precedent how one can resurrect long dead colonial treaties without first violating principles of Jus Cogens and others.

The Vienna Convention on the Law of Treaties, which is a codification of customary international law, in Part V on �Invalidity, Termination and Suspension of the Operation of Treaties� in several Articles has embodied that principle. Both customary international law and multinational treaty based principles hold agreements entered where there is lack of competence (Article 46), or through fraud (Article 49) , collusion (corruption) (Article 50), or under duress or coercion (Articles 51 and 52) to be void or voidable.

It is a fact that the TPLF/EPRDF and the EPLF had been in close cooperation as guerilla movements for over twenty years. They had coordinated their activities against the Ethiopian government during the period leading to their victory in 1991. There are eyewitnesses and documentary evidence proving prior agreements between the leadership of the two guerrilla movements against the interest of the Ethiopian people and the State of Ethiopia. It was none other than Meles Zenawi, along with Abai Tsehai, who signed on behalf of the TPLF such an agreement with the EPLF. No such agreement was ever disclosed to the people of Ethiopia (or Eritrea) when the two guerilla Leaders became head of states or governments after their victory over the Ethiopian Government in 1991. It is with such undisclosed prior agreement with hidden agenda the new Algiers Agreement was signed by the same guerrilla leaders pretending as if it were an arms-length negotiated agreement.

These same two leaderships of the two guerrilla movements have signed several other hidden agreements that they intended to implement as part of their general strategy to dismantle and destroy Ethiopia. The Algiers Agreement, which anticipated border demarcation as agreed to in their previous clandestine agreements between the two guerilla movements, is simply an implementation of that strategy now floating for all to see at the surface of their deep sea of deception. Thus, there is fraud in the activities of Meles Zenawi pretending to be a leader of the Ethiopian people, but in fact promoting the hidden agenda of an adversary foreign interest.

Where officials representing states had made some other arrangement unknown to their respective government organs (parliament, council of ministers et cetera) entrusted with the power to delegate state authorization to such agents, and where the entry of an agreement by such colluding agents is harmful to the interest of one of the signatories of such an agreement to benefit the other, there is collusion; consequently, a base for voiding and nullifying such an agreement by the prejudiced party. The Vienna Convention on the Law of Treaties is absolutely clear on fraud corruption (collusion) in Part V as cited above.

"No man can serve two masters; for either he will hate the one, and love the other; or else he will hold to the one, and despise the other.� Matt 6:24

The United States was not pleased when Ethiopia and Eritrea went to battle. However, it was not for the same reasons that you and I would have been thinking about to preserve peace in the world. The flare of that conflict prematurely ignited the type of war had it happened much later would have thorn Ethiopia apart and lead to the creation of several tiny nations. The plan of the United States CIA coordinating the Meles-Issaias axis to carry out the destruction of Ethiopia by dismantling Ethiopia into several pieces was to a great extent disrupted. The breakout of such actual engagement saved Ethiopia from CIA planned later destruction. Now we have a resurgence of Ethiopian nationalism that has effectively neutered the CIA from carrying out its ill conceived dismantling of Ethiopia across lines of cracks of Super Power induced ethnic �self-determination.�

The Government of the United States through the United Nations Security Council and on its own national agenda is intimately involved with the Ethiopia-Eritrea border dispute. For all practical purposes its name should have been added to the name of the Commission such as �The United States-Ethiopia-Eritrea Boundary Commission.� The United States government has coerced, threatened, and openly expressed its illegal desire to landlock Ethiopia in pursuit of its ill-conceived foreign policy. It has favored �Eritrea� to acquire illegally Ethiopian territory. Some members of Congress (Lantos, Payne et cetera) have introduced a bill [H.R. 2760 of 16 July 2003] condemning the Ethiopian government [SEC. 5(3)], and are involved in a process no different than cheap blackmailing of the current Ethiopian government with economic and military sanctions [SEC. 6 (a) and(b)] if the Ethiopian government does not go along with the highly prejudicial scheme the United States government had put in place in collaboration with �Eritrea� and Meles Zenawi starting with the drive for the independence of �Eritrea� to the signing of the Algiers Agreement and the setting up of the Commission. The draft bill in Congress has shown no restraint whatsoever, even going to the extent of expressing its support to the Commission [SEC. (1)]in an unusual foray prejudging a complex situation from a pulpit of self-righteous indulgence of self-importance.

Rejection of the determination of an international dispute by an arbitration tribunal or even by the more public forum of the International Court of Justice (ICJ) is not something unusual. It is in the nature of the dynamic relationship of states that determination by international tribunal such as the ICJ or the Arbitration Commission could be set aside by states against whose interest such decision has been entered where the �vital interest� of such states was at stake.

Consider the following examples:

a) In 1974 France informed the United Nations Secretariat that it will not recognize the jurisdiction of the ICJ in its verdict in favor of Australian and New Zealand�s concern of the nuclear test conducted by France in the Pacific Ocean. The ICJ has directed France to stop its nuclear testing. [Nuclear Tests (Australia v. France) 1973- 1974; Nuclear Tests (New Zealand v. France, 1973-1974].

b) (i) In 1984 the United States Government refused to accept the decision of the ICJ in the Nicaragua v. United States case [Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgments, I.C.J. Reports 1986]. The ICJ has found the United States has violated the rights of Nicaragua.

(ii) In 1999 the ICJ ordered the stay of execution of a German national on a finding that the United States had violated international law; nevertheless, the United States rejecting the order executed the German citizen and his brother. [The LaGrand Case(Germany v. United States of America) 5 March 1999] In that case the Court unanimously upheld that treaty provisions override local criminal process, and ordered the following interim measures: �(a) The United States of America should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order; (b) The Government of the United States of America should transmit this Order to the Governor of the State of Arizona. �II. Decides, that, until the Court has given its final decision, it shall remain seised of the matters which form the subject-matter of this Order."

Among several other news media the CNN reported, �[T]he world court held a 30-minute hearing at which Sri Lankan Judge Christopher Weeramantry, the United Nations court's vice president, urged the United States to use "all the measures at its disposal" to prevent the execution. It also said the United States should pay unspecified damages for the death of LaGrand's brother, Karl, who was executed last week for his part in the same crime. The world court, however, has no enforcement powers.� [cnn.com, March 4, 1999, Web posted at: 12:02 a.m. EST (0502 GMT)]

c) Let us fold back time in order to consider the decisions of the International Permanent Court of Arbitration soon after its creation in 1899. Some decisions entered by the newly created International Permanent Court of Arbitration between 1900 and 1932 were arbitrated mainly on limited border disputes, nationality issues, and interference/sovereignty conflicts. Almost all of the decisions dealing with boundaries and nationality issues were blown off with the Second World War. New agreements, usually imposed by the victors on the losing sides, were put in place without regard to previous arbitration decisions in a number of peace agreements. Further political development in the Cold War period eroded such agreements. Moreover, starting in the late 1980s, the borders of new countries have been once again redrawn popping out of the old global order.

All of the developments in international arbitration show us that nothing is written in granite, instead the literature of the time and the decisions of the arbitration tribunal are fluid and are meant to solve problems within a framework of an evolving world order and customary international law. There is no such thing that approximates the rigidity and clarity of say criminal law. It is this sublime mix of statesmanship, difference to history, and the desire to bring about peace and security between states and peoples that motivated and guided jurists and politicians alike.

d) Where there is clear error of principle as well as that of error of fact in an arbitral decision, no one can be held bound by such decision.

Thus, for all the above reasons the Ethiopian government must reject the decision of the Commission. Such act of rejection is not unique, as shown above; in fact, one would fail in ones duty if one does not reject the decision of the Commission in order to protect the �vital interest� of Ethiopia--its survival as a viable nation. In fact, it is even more compelling to reject the decision of the Commission when we take into account the consequence and magnitude of accepting the decision of the Commission. Both the United States and France found it necessary to reject decisions of questionable impact on the survival or sovereignty of France or the United States by a far more public forum, the ICJ, than the case of Ethiopia rejecting a far reaching decision of a low level arbitration tribunal.

All international adjudication/arbitration forums have certain standards of integrity that must be upheld by members of such forums/courts/tribunals/commissions. The basic documents of the ICJ as well as that of the International Permanent Court of Arbitration and the UNCITRAL rules all have provisions providing for �high moral� standards that members sitting to adjudicate or advise or arbitrate parties to a controversy and the world at large are expected and required to observe. The independence of any such body from undue influence of third parties is a well established principle that evolved out of centuries of the development of customary international law and principles. We have to consider also general principles of law practiced by all �civilized nations� of the World in connection with the integrity of an international court or forum.

Article 2 of the Statue of the ICJ holds that �[t]he Court shall be composed of a body of independent judges, elected... from among persons of high moral character.� [Emphasis added]

Article 23 of the 1899 basic document that created the Permanent Court of Arbitration [Convention for the Pacific Settlement of International Dispute] holds that �each Signatory Power shall select four persons...of known competency in questions of international law, of the highest moral reputation, and disposed to accept the duties of Arbitrators.� [Emphasis added]

From the verse quoted here from the Bible, at least, we should consider its moral teaching.

�For where your treasure is, there will your heart be also.� Matt. 6:21

We should understand the role of arbitrators to be distinct from that of ICJ judges in context of how arbitrators are chosen or appointed in the first place. However, this does not mean that we have to throw out all professional ethical standards when it comes to arbitrators. By the nature of their appointment or election, arbitrators do have certain preferences in supporting the position of the party that appointed or elected them. However, this does not mean that they are not bound by the �highest moral reputation� standard. It may be argued that that their preference to the party that appointed them may not disqualify them from being arbitrators. However, when it comes to the president or chairman elected by the arbitrators themselves pursuant to the arbitration agreed upon procedure, I believe both standards of �independence� and �highest moral reputation� standards are applicable to arbitrators who are thus elected by the other arbitrators to be presidents of particular commissions or tribunals.

The Commission members, especially the President, Sir Elihu Lauterpacht, have displayed an unusually blatant disregard of both the �high moral� standard expected of his position and impropriety in his activities that clearly shows his lack of independence from the influence of third party governments. It is with sincere regret that one is forced to challenge Lauterpacht�s professional ethical standard due to the gravity of the problem facing ones nation. Lauterpacht is a seventy five year old international jurist who had led a distinguished life until this moment.

Lauterpacht has displayed a degree of liberties in his words of communication with the Government of Ethiopia that boarders an impertinence. He seems to have cast his role as an ICJ judge or a �Secretary General� of an international organization like the United Nations rather than a �President� of a privately established arbitration tribunal. Let us consider the situation in a holistic manner taking into account other activities of undue interferences by third parties that may have direct bearing on the Ethiopia-Eritrea border dispute. Not withstanding the hollow diatribe of the Representative of �Eritrea� at the recent General Assembly of the United Nations, looked at with such global perspective, the Ethiopia-Eritrea Border Commission arbitration process is in a real mess. The Security Council, and the Secretary General are assuming roles that was never envisioned or authorized through practice�roles of a Judiciary (a supreme court) and that of a Chief �Justice.

Thus, it is obvious that the United States is acting in an adversarial role in the case involving the border dispute between Ethiopia and Eritrea. It is no more an impartial neutral body. With such public background in full view, the United States has further stained the arbitration process with its uncouth act of retaining as its lawyer Lauterpacht in its case with Mexico, a case pending at the ICJ [Avena and Other Mexican Nationals (Mexico v. United States of America)]. This act of the United States is no different, for example, from Eritrea hiring Lauterpacht to work on some legal case while Lauterpacht is still a member of the Commission. If that was the case, everybody with some legal background would have called out �conflict of interest� at the top of his or her voice. Thus, the fact of an interested party such as the United States retaining a sitting-Commissioner as its lawyer is only slightly a shade different than the actual party in the controversy�Ethiopia or �Eritrea��retaining any of the sitting-Commissioners as a private lawyer. It does not in any way mitigate the unethical and conflict of interest situation by identifying when Lauterpacht was retained as counsel for the United States, rather what remains is the negative shadow cast on the fitness of Lauterpacht as an arbitrator and the independence of the Commission as a whole. One must realize the Commission�s work is not yet concluded, thus the members of the Commission are still bound by the standards set by the Basic document of the Court of Arbitration and principles developed for such purposes by customary international law.

It is only proper for Ethiopia to demand full disclosure by Lauterpacht of all his activities with third parties that are directly or remotely involved with the on going border dispute with Eritrea. If this is not a clear case of conflict of interest, loss of independence, and a compromise of the principle of �high moral� standing expected and required of the members of the Commission, show me what is.

Not only Lauterpacht is personally involved in such blatant conflict of interest, but also Riesman, another member of the Commission appointed by Eritrea, is involved in other cases that put his behavior in a compromised position. It seems that Lauterpacht is using the Permanent Court of Arbitration based commissions and tribunals as his private law firm away from his home base from his Chambers at 20 Essex Street. His partner Arthur Watts at the Chambers at 20 Essex Street is supposedly picked by Ethiopia for the Commission. Here you have an incestuous relationship where the same characters are showing up again and again as commission or tribunal members. Both the appearance of conflict of interest or conflict of interest in fact is rampant in the whole arbitration process where the �high moral� and �independence� standards are compromised.

Ideally, international arbitration was to be carried out by choosing from the members of the Permanent Court of Arbitration already designated by their respective governments who are signatories of the 1899 or 1907 Treaties (Conventions). With the adoption of the UNCITRAL rules the forum was expanded to include ad hoc arbitrators who are not designated by any member nations. This process seems to have opened the door for corruption and conflict of interest problems. One must not lose sight of the initial reasons why in 1899 the arbitration forum was needed. It seems there was an interest by the kings, queens, heads of States et cetera who meet at the Hague an idealized element of public duty to bring about peace and security to a Europe and a world at large racked with war and violence and �to record in an international agreement the principles of equity and right on which are based the security of States and the welfare of peoples,� [Preamble, 1899 Convention]. It was envisioned that seasoned statesmen and international law jurists would help stabilize the world through their wisdom by arbitrating conflicting claims by states. It was never meant a career promoting and money making scheme for lawyers.

Looking at the record of the last three to four years, one cannot but notice that Lauterpacht and a few of his exclusive group of individuals seem to have made the process of �arbitration� a money making mechanism for their insatiable appetite for money. Most anyone would be tempted with the prospect of earning an exorbitant amount of money at an hourly rate of 200 to 300 hundred dollars. When I examined the docket of the Permanent Court of Arbitration ad hoc tribunals and commissions, I was amazed to read how Lauterpacht and Riesman seem to have their hands in every pot. Are these individuals truly �disposed to accept the duties of Arbitrators� or are they involved in some kind of money making scheme that compromised and defeated the purpose of having an arbitration in the first place?

Raising the issue of professional responsibility (conflict of interest, corruption et cetera) is a very sensitive and complex matter for anyone. It should not be a point of contention without solid ground. I have first hand experience of good intentions going sour and affecting the judicial system. The psychology of the individual involved is not that important in determining such issues. After all the history of mankind�s failure is littered with good intentions. Neither accusing the messenger of personal misdeeds nor giving examples of the trespasses of others can mitigate the harm done as a result of practices by a couple of Commissioners that undermined the integrity of the arbitration process and the rule of law in general. It is with great concern that I have addressed the issues discussed in this article.

The Government of Ethiopia has every right to void all agreements, including the Algiers Agreement, and to reject the entire decision of the Commission. Ethiopia cannot be obliged to accept a decision by a Commission that is corrupted where some members of the Commission have compromised their duty to exercise �independence� and �high moral� standards. It is not important to show that all and every member of the Commission is involved in such conflict of interest. As long as one can show at least one member is involved in such conflict of interest, the entire proceeding and all decisions thereof, which flowed from such process, are tainted, thus void. Ethiopia should demand the disqualification of the President of the Commission, Elihu Lauterpacht, for conflict of interest and corruption.

The fact of setting a �Fund� out of which the tribunals� and commissions expense and the compensation for the members of such tribunals and commissions is paid has introduced into the process of arbitration an element that goes contrary to the desired independence of such forums. The problem is compounded by the fact of the involvement of the United Nations Security Council in that a dose of political consideration rather than law and principles plays a major role in the decision making process of arbitration. Such new structure has further polarized and distorted the independence of the tribunals or commissions.

The United Nations role as played out by the Security Council in the arbitration process was an affront to the Sovereignty of Ethiopia. We have around the world some of the worst violators of international law, and yet the Council does nothing. In the case of Ethiopia, it seems that the United Nations is on the verge of drawing its equivalent economic �weapon of mass destruction� (sanction) against Ethiopia, as its predecessor League of Nations did in 1935 against a lone Ethiopia facing up with great courage Fascism and now ethnic based dismantling.

I started this essay by speculating what Aklilu might have done faced with the current political and economic situation of Ethiopia. Aklilu would not have accepted any limitation or cutting back of the historic rights of Sovereignty and Territorial Integrity of Ethiopia. He would have argued and insisted with great patriotic zeal that the Ethiopian cause is not limited to retaining some patches of territory in Bademe or Irob. He would have pointed out the fact that the issue deals with fundamental principles of Justice, Sovereignty, and Territorial Integrity of a respected and founding member of the United Nations. He would have illustrated with graphic historic documentation that the problem of dismantling of Ethiopia would result in the extreme with massive violation of human rights and the dignity of millions of Ethiopians. He would have presented statistical data, in depth studies that the right to develop ones resources is also part of the fundamental rights of every human being. Above all Aklilu would have moved the world with his eloquence and thoroughness in presenting the fabulous history of Ethiopia�s fight in securing and retaining its historic rights of coastal territories and territorial waters of the Red Sea because it has to do with living in good relationship with neighboring nations and their peoples.

For anyone to focus just on some pieces of land in limited areas is to have missed the point. No part of the decision of the commission is to be accepted. Above all the Algiers Agreement is an insult to our intelligence and to our national sovereignty and territorial integrity. It is, in fact, an affront to international law and principles to allow such �agreement� to be considered as a base for any future relationship Ethiopia might have with the rest of the World.

We have been witnessing since the independence and border demarcation of �Eritrea� was thrown in our face, the century of normal practice of Ethiopians of moving around from one region of the province of Eritrea to other parts of Ethiopia being played out by Ethiopians now identified as �Eritreans� moving into northern parts of Ethiopia. Mostly those �Eritreans� coming into Ethiopia�s northern regions belong to the Ethiopian now �Eritrean� Orthodox Church who are faced with real dilemma; they cannot go to the Sudan or neighboring Islamic countries because of fear of persecution because of their religion and because of their �blackness� that seems to be a problem in the eyes of Arabs. The Moslem �Eritreans� from the Western lowlands in �Eritrea� move freely in and out of the Sudan as they please. And some on the Eastern shore of the Red Sea travel freely to Yemen, Saudi Arabia et cetera. Now, the issue is how we Ethiopians should respond when we are faced with the flow of such �Eritreans� who want to come to Ethiopia. I believe we should receive them with open arms in the same spirit of the Biblical father who received his wayward prodigal son in the story as told by the Christ. Please, take a moment and think about the whole problem. Where else can they go if not to their own mother country Ethiopia? The real criminals in our self inflicted wound are the two leaders of the two �liberation� movements (TPLF/EPLF) that are the cause of the mess we are in.

I am very much aware of the fact that a lot of harm to Ethiopia�s economic and security interest was inflicted by infiltrators from the EPLF and other insurgency groups over the years before and after 1991. One must be careful in allowing the types of �Eritreans� who want to relocate to Ethiopia as Ethiopians. A lot of �Eritreans� are being hurt under the current government of �Eritrea.� The people of both communities obviously need each other on real human level. Should we prolong the pain and suffering of innocent people who are equally victimized by so called brutal �liberation� movements? Let us all be long distance runners, and not undermine our great future as one people by dashing off in a frenzy in what would end up being a short lived sprinting of hate and greed. When all is said and done, what truly would remain is our humanity and our fragile existence. There is a great Ethiopian saying that I would like to share with you all in concluding this rather long essay: �Endih liŤegb, berei�ien aredcoot.�

[Postscript: Being the Editor of this Website, has some great advantages: I get to read wonderful articles before they are posted and read by anybody else. For example, the Articles by two incredibly gifted scholars, Aleme Eshete and Tseggai Mebrahtu, appearing on this Website, at the very first time of the launching of this Website, is a great omen of good tidings for our community. Even though we did not consult each other on what subject matter we were going to write, it is quite wonderful to have three articles very much in- sink and complementary to each other on the most important subject of our national unity, sovereignty, and territorial integrity.]

Tecola W. Hagos

Copyright � 2003 by Phineaus St.Claire