A Critical Case Study of the Eritrea–Ethiopia Claims Commission Decision on POWs: Implications for Non‑Signatory States and the Applicability of International Humanitarian Law

Author: Wakjira Tesfaye Beriso

1.     The Ethio-Eritrean War – A brief background

The Ethio–Eritrean War  (1998–2000) emerged from a longstanding border dispute that dramatically intensified following Eritrea’s declaration of independence from Ethiopia in 1993. The dispute over the Badme region, which had simmered for decades as a consequence of colonial and postcolonial contestations over borders, natural resources, and national identity, ultimately served as the ignition point for hostilities, exposing a profound legal quandary: What happens when a newly formed state has not yet acceded to central treaties of international humanitarian law? In particular, was Eritrea, an entity that did not formally ratify the Geneva Conventions until August 14, 2000, bound to safeguard Ethiopian prisoners of war under those same Conventions prior to accession?

After gaining independence in 1993, Eritrea and Ethiopia experienced escalating tensions over the disputed Badme region. These tensions culminated in armed clashes in May 1998, leading to a full-scale war that lasted until June 2000. The conflict resulted in extensive casualties, economic disruption, and severe humanitarian consequences for both nations. In an effort to resolve the dispute, both countries signed the Algiers Agreement in December 2000, establishing the Eritrea-Ethiopia Boundary Commission (EEBC) to deliver a final and binding border delimitation. In April 2002, the EEBC awarded the disputed town of Badme to Eritrea. However, Ethiopia expressed deep dissatisfaction with this ruling and refused to implement the decision, maintaining control over Badme. This refusal led to a prolonged stalemate between the two nations.

2.     The place of International Humanitarian Law

Ethiopia, having signed and ratified the Geneva Conventions by 1949 and 1969 respectively, was unambiguously bound by these multilateral treaties, which provide a comprehensive legal framework regulating the conduct of hostilities and the treatment of persons who are not, or are no longer, participating in hostilities. In contrast, when Eritrea declared its independence in 1993, it did not automatically inherit these treaty obligations from Ethiopia. International law recognizes that newly independent states customarily signal their intent to adopt pre‑existing treaty commitments through formal declarations or legislative enactments. While many successor states continue to honor international treaties, this is not automatic. In the case of Eritrea, there is a notable absence of clear legislative or formal declarations indicating that it intended to adopt the Geneva Conventions immediately upon independence. The Eritrea–Ethiopia Claims Commission  explicitly observed a “dearth of substantiating evidence” that Eritrea had undertaken the customary process necessary to inherit these obligations. As the Commission observed:

“However, the Commission has not been shown evidence that would permit it to find that such circumstances here, desirable though such succession would be as a general matter.”

In this context, “such circumstances” refer to the lack of unequivocal statements from Eritrean authorities and the absence of consistent state practice that would indicate a clear intention to be bound by the Geneva Conventions. This absence of demonstrable consent renders any presumption of automatic succession legally unsustainable.

To fully understand Eritrea’s obligations during the conflict period, it is essential to examine the broader principle of continuity in humanitarian obligations under international law, particularly in the context of state succession, where shifts in sovereignty or government structures raise complex questions about treaty obligations. According to this principle, certain international obligations, especially those related to fundamental human rights and humanitarian norms, persist despite changes in state sovereignty. This continuity ensures that newly independent or successor states remain accountable for essential commitments that uphold human dignity and the rule of law within the international community.

While the Vienna Convention on Succession of States in Respect of Treaties adopts a permissive approach under Article 16, often referred to as the “clean slate” doctrine, this framework is increasingly challenged when it comes to humanitarian obligations. The “clean slate” doctrine allows newly independent states to decide which treaties they will adopt, potentially enabling them to reject critical human rights obligations inherited from their predecessors. However, this permissive approach conflicts with the evolving understanding in international law that certain humanitarian obligations, particularly those embedded in customary international law, remain binding regardless of succession.

In his article, “The Problem of State Succession and the Identity of States under International Law” Matthew Craven argues that the continuity of obligations cannot be assessed solely through the lens of consent-based treaty succession. Instead, it must be viewed through the prism of an emerging constitutionalization of international law, where certain values—notably the prohibition of torture and genocide—function as normative anchors that transcend state will. Craven’s argument highlights that humanitarian norms are increasingly perceived as structural principles essential to the integrity of the international legal order, rather than optional commitments dependent on state consent.

This perspective finds strong support in the International Court of Justice’s (ICJ) 2005 judgment in the case of Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda, where the Court observed:

“The principles underlying the prohibition of the use of force, the non-intervention principle, and the minimum standards of humanity form part of customary international law and constitute obligations erga omnes.”

The reference to “minimum standards of humanity” is particularly significant because it directly relates to the continuity of humanitarian obligations. These standards represent fundamental norms that persist irrespective of a state’s treaty commitments or changes in sovereignty. The erga omnes nature of such obligations means that they bind all states at all times, not because of treaty commitments, but because they are integral to the collective interests of the international community. Obligations erga omnes are distinct in that they protect global values, such as the prohibition of torture and inhumane treatment, which are considered essential for maintaining international order.

In the context of state succession, this implies that successor states cannot evade responsibilities concerning core humanitarian principles by simply rejecting predecessor treaties. Instead, these obligations remain continuous and binding, regardless of political transformations. This continuity is grounded in the universal values that these humanitarian norms protect—values that safeguard the integrity of the international legal order and ensure that fundamental human rights are upheld even in the face of sovereign transitions.

From the moment of independence, Eritrean leadership made it clear through official pronouncements and consistent state behavior that it would not be bound by the Geneva Conventions until a later accession occurred. In particular, Eritrea’s persistent denial of unrestricted access to the International Committee of the Red for the purpose of visiting Ethiopian prisoners of war serves as a concrete manifestation of its non‑acceptance of the treaty regime. While the ICRC was allowed limited access—to a small group of civilian detainees according to stringent procedures—broader access for inspecting POWs was consistently obstructed. These obstructions reflect both a deliberate policy of noncompliance with the treaty’s procedural requirements and a rejection of the substantive humanitarian obligations that the treaty is designed to enforce.

In its Partial Award on Prisoners of War, the EECC concluded that Eritrea’s systematic refusal to grant ICRC access to POWs from May 1998 until August 2000 violated customary international humanitarian law (IHL), despite its non-accession to the Geneva Conventions at the time (para.62).   The Commission’s findings, based on extensive fact-finding—including POW testimonies, Eritrean military directives, and diplomatic exchanges—revealed a deliberate and prolonged obstruction of humanitarian oversight (para. 55). Eritrea argued that the obligation to allow ICRC visits was a procedural rule tied solely to treaty law rather than a binding customary obligation (para. 56–58). However, the Commission firmly rejected this claim, affirming that external humanitarian access is an essential safeguard under customary international law and a fundamental protection against inhumane treatment (para. 59–61). It ruled that Eritrea violated its obligations under customary IHL from May 1998 to August 2000, as the denial of ICRC access deprived POWs of independent registration, monitoring, and relief (para. 62).

A central issue raised by these circumstances is whether, in the absence of formal accession, a state such as Eritrea may still be held accountable under customary international law. Customary IHL is a body of legal norms that derives its binding nature from consistent state practice accompanied by the recognition that such practices are obligatory (opinio juris). In the Ethio‑Eritrean conflict, even though Eritrea had not formally acceded to the Geneva Conventions, the core principles—such as the requirement to treat prisoners of war humanely—had already crystallized into customary international law.

The International Criminal Tribunal for the Former Yugoslavia further substantiated the binding nature of POW protections in Prosecutor v. Tadić, where the Appeals Chamber held that “certain fundamental humanitarian obligations are to be observed by all parties to an armed conflict, regardless of whether they have ratified the conventions that contain them.” The ICTY’s ruling in Furundžija similarly affirmed that the prohibition of torture and inhumane treatment is a peremptory norm (jus cogens) from which no derogation is permitted, binding states irrespective of treaty obligations.

 In Al-Skeini and Others v. the United Kingdom, the European Court of Human Rights addressed the extraterritorial application of the European Convention on Human Rights. The Court held that the United Kingdom exercised authority and control over individuals in Basrah, Iraq, during security operations, thereby establishing a jurisdictional link under Article 1 of the Convention. Specifically, in paragraph 149, the Court stated:

“In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention.”

From this decision, it can be established that control over individuals, particularly in conflict situations, constitutes a sufficient basis for activating fundamental humanitarian obligations, as the exercise of such control creates a legal relationship that imposes responsibilities recognized under customary international humanitarian law. In the case of Eritrea, its authority over Ethiopian prisoners of war during hostilities necessarily triggered obligations not contingent upon formal treaty commitments, specifically the duty to ensure humane treatment and to facilitate humanitarian oversight, thereby guaranteeing that essential humanitarian standards are maintained through the very nature of jurisdictional control.

The African Commission on Human and Peoples’ Rights (ACHPR) has ruled that incommunicado detention constitutes a severe human rights violation, facilitating further abuses such as torture and ill-treatment. In Communication No. 250/2002, the Commission stated that “the lack of external oversight in detention facilities constitutes an inherent violation of human dignity and is incompatible with international human rights and humanitarian standards.

Additionally, the ICRC’s Customary IHL Study, which codifies state practice, identifies Rule 124, stating that “the ICRC must be granted regular access to all persons deprived of their liberty in order to verify the conditions of their detention and to restore contacts between those persons and their families.” This obligation, the study finds, is “established as a rule of customary international law applicable in both international and non-international armed conflicts.”

Eritrea’s conduct during the war provides concrete evidence for this analysis. The repeated denial of full ICRC access to POWs is not merely a technical or administrative shortcoming; it signifies a broader repudiation of the international standards of humane treatment that the Geneva Conventions are designed to enforce. Such conduct, when viewed through the lens of customary IHL, clearly demonstrates that Eritrea’s actions violated universally binding humanitarian norms, even if formal treaty obligations were not in place at the time.

A contentious yet crucial aspect of the Eritrea–Ethiopia Claims Commission’s analysis is the role of military training in establishing state obligations under international humanitarian law. In paragraph 67 of the EECC’s Partial Award on Prisoners of War, the Commission noted that Eritrean troops and officers received “extensive instruction on both the fundamental requirements of the Geneva Conventions on the taking of POWs and on the policies and practices of the Eritrean People’s Liberation Front in its struggle against the previous Ethiopian government, the Derg.”

This acknowledgment raises an important question: can comprehensive military training in IHL indicate an implicit commitment to the humanitarian principles enshrined in the Geneva Conventions? On one hand, such training demonstrates Eritrea’s awareness of the conventions’ core principles, suggesting a de facto endorsement of international humanitarian norms. The investment in educating military personnel about these obligations could be interpreted as evidence of the state’s intention to adhere to those standards, even in the absence of formal accession.

However, while the extensive IHL training conducted by Eritrea certainly indicates an operational recognition of international norms, it falls short of constituting formal legal acceptance. Under international law, explicit consent is required for a state to be legally bound by treaty regimes. This consent typically manifests through legislative enactments, executive declarations, or formal treaty accession. Without such explicit actions, a state’s informal practice even those involving comprehensive training cannot substitute for formal acceptance. The EECC emphasized that despite Eritrea’s military training programs aligning with the Geneva Conventions, these efforts alone did not establish a legally binding obligation to comply with the conventions. Customary international law requires consistent state practice accompanied by opinio juris—the belief that such practice is legally required. In Eritrea’s case, while training demonstrated knowledge and operational alignment with humanitarian norms, it did not reflect the necessary belief or intent that these practices were legally binding obligations under international law.

Moreover, the distinction between operational practice and formal legal commitment is essential. Extensive IHL training can contribute to state practice, but without accompanying formal declarations, such practices remain aspirational rather than obligatory. This distinction underscores the principle that state conduct, no matter how aligned with international standards, must be accompanied by explicit consent mechanisms for treaty obligations to be legally enforceable. Consequently, Eritrea’s military training programs, although commendable in reflecting a certain humanitarian ethos, cannot by themselves transform informal practice into binding treaty obligations under the Geneva Conventions.

Eritrea’s subsequent accession on August 14, 2000, in conjunction with its extensive investment in IHL training, might indicate that its leadership tacitly endorsed humanitarian norms even during the conflict period. This is especially true in line with the description in paragraph 67 of the EECC Award and argues that such behavior reflects a de facto commitment that should mitigate the strict legal consequences of non‑accession. However, international law is clear that retrospective behavior, however positive, cannot be used to retroactively impose obligations for a period during which the state did not provide explicit consent. While Eritrea’s later actions may be interpreted as an attempt to align with international norms, they do not alter the legal reality of the conflict period.

2.1 The Binding Force of Customary International Humanitarian Law in State Succession

The broader implications of the Ethio‑Eritrean conflict for IHL are significant. This case exemplifies the dual system by which international law operates: formal treaty obligations among consenting states on one hand and universally binding customary norms on the other. Such a framework is essential in an era when not all states are willing or able to join multilateral treaties in full. The evolution of humanitarian norms from treaty provisions into customary law ensures that fundamental principles—such as the prohibition of inhumane treatment, the right of detainees to protection, and the oversight rights of humanitarian organizations—retain their binding force even in contexts where formal treaties are absent.

This case study also prompts to reevaluate the efficacy of international legal regimes in contemporary conflict scenarios. Non‑signatory states may attempt to evade the obligations of treaties by expressly rejecting formal accession, but the universal applicability of customary IHL provides a critical safety net. Even where political considerations lead a state to distance itself from formal treaty mechanisms, the underlying humanitarian imperatives remain enforceable through consistent state practice and the establishment of legal norms recognized by the international community. Consequently, the Ethio‑Eritrean War and the subsequent EECC decision underscore that the protection of human rights and human dignity in armed conflict cannot be nullified by a state’s non‑acceding status.

Moreover, these legal debates have significant policy implications. International bodies and NGOs have increasingly relied on the dual framework of treaty and customary law to hold states accountable for violations of humanitarian norms. In practice, the continued evolution of customary IHL is evident in the growing number of international tribunals and fact-finding missions that invoke these principles to secure redress for victims. As conflicts evolve and new actors—both state and non-state—emerge on the global stage, the interplay between formal treaty obligations and customary norms will continue to shape international responses to humanitarian crises.

2.2.Legal Consequences and Enforcement Mechanisms for Non-Compliance

From an enforcement standpoint, refusing to accede to key IHL treaties neither negates a state’s responsibility nor immunizes its officials from liability for grave breaches. Indeed, the ill-treatment of prisoners of war—recognized as a “grave breach” under the Geneva Conventions (e.g., Geneva Convention III, Arts. 129–130)—is subject to universal jurisdiction, obliging all states to prosecute or extradite alleged perpetrators. Complementing these domestic efforts, the Statute of the International Criminal Court (Arts. 5, 8, and 12–13) empowers the Court to investigate war crimes, crimes against humanity, and genocide, even absent direct state consent if the United Nations Security Council  refers the situation under Chapter VII of the UN Charter. This mechanism was illustrated by Resolutions 827 (1993) and 955 (1994), establishing the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), respectively—both of which held perpetrators criminally liable for egregious IHL violations, irrespective of treaty status. Regionally, the African Commission on Human and Peoples’ Rights, operating under the African Charter (Arts. 45–47), can open inquiries, adopt provisional measures, and coordinate with international mechanisms to address severe human rights abuses, thereby reinforcing that customary norms—particularly those reflecting jus cogens prohibitions like torture—must be observed by all states at all times.

What these complementary systems reveal is that the international legal order refuses to allow non-accession to function as a legal vacuum for atrocities. The duty to “respect and ensure respect” for IHL, enshrined in common Article 1 of the Geneva Conventions, imposes a collective obligation on all states to prevent and halt serious breaches. Thus, the rejection of formal treaty obligations offers no safe haven from IHL’s core prohibitions. In practice, however, these enforcement mechanisms neither operate in isolation nor function automatically. States exercising universal jurisdiction often face political or logistical hurdles in prosecuting foreign nationals for extraterritorial crimes, while the ICC relies on voluntary cooperation for arrests and surrenders.

Nonetheless, such barriers enhances the vital role of multilateral engagement and diplomatic pressure in promoting compliance. For instance, the African Commission’s investigative procedures—strengthened by non-governmental organizations and civil society—facilitate evidence gathering, foster dialogue on adherence, and channel critical information to international bodies. Over time, this interplay between domestic courts, regional institutions, and international tribunals dismantles the premise that non-accession to certain treaties can confer immunity. Instead, it highlights how robust legal frameworks enable the international community to impose meaningful consequences on states or individuals who commit grave breaches.

This article demonstrates that while explicit treaty commitments remain crucial for establishing detailed obligations among states, the fundamental humanitarian norms at the heart of International Humanitarian Law have attained a status that renders them binding on all nations—signatory or not.