Court/Judicial body: Permanent Court of Arbitration, Eritrea-Ethiopia Claims Commission (the “Commission”)
Date: December 17, 2004 CRC
Provisions: Article 9: Separation from parents Article 38: Armed conflicts
Other international provisions:Geneva Convention IV
Background: Eritrea brought claims against Ethiopia before the Eritrea-Ethiopia Claims Commission (the “Commission”), alleging that Ethiopia wrongfully denationalised, expelled and detained thousands of Ethiopian citizens of Eritrean origin and/or nationality in connection with the 1998-2000 armed conflict between the two countries. Among other things, Eritrea claimed that Ethiopia’s actions resulted in the separation of families and the failure to ensure the protection of children in violation of international law. Ethiopia denied these claims, asserting that it complied with international law by taking feasible measures to protect children and families, such as allowing detainees to bring their children into detention with them and allowing family members of expelled people to leave Ethiopia as well.
Issue and resolution: Armed conflict; Separation of families. The Commission dismissed Eritrea’s claims that Ethiopia’s actions resulted in the separation of families and failure to ensure the protection of children in violation of international law.
Court reasoning: While international humanitarian law imposes certain burdens on belligerent states such as Ethiopia with respect to the protection of children and families, international humanitarian law and human rights law (including the CRC) recognize that absolute protection cannot be guaranteed in wartime. Although specific instances of forcible separation of children from their parents and of entire families from the income-earning parent were included in the record, Eritrea failed to prove a pattern of forcible family separation or failures to ensure the protection of children.
Excerpt citing CRC and other relevant human rights 153. Finally, Eritrea contended that Ethiopia’s actions resulted in the separation of families and failures to assure the protection of children contrary to international law…. 154. International humanitarian law imposes clear burdens on belligerents with respect to the protection of children and the integrity of families. Article 27 of Geneva Convention IV, for example, provides that all protected persons are end in all circumstances to respect for their family rights. However, both international humanitarian law and human rights law, which Eritrea emphasized, also recognize that, regrettably, absolute protection of the family cannot be assured in wartime. While Article 9 of the Convention on the Rights of the Child states that children should not be separated from their parents against their will, it also recognizes separation may result in the course of armed conflict due to detention or deportation of one or both parents. In the face of the realities of war, Article 24 of Geneva Convention IV sets out special protections for children under the age of fifteen who are separated from their families or orphaned: The parties to the conflict shall take the necessary measures to ensure that children under fifteen, who are orphaned or are separated from their families as a result of the war, are not left to their own resources, and that their maintenance, the exercise of their religion and their education are facilitated in all circumstances. Further guidance appears in Article 38 of the Convention on the Rights of the Child, which calls for parties to take “all feasible measures to ensure protection and care of children who are affected by an armed conflict.”
Follow up:The Eritrea-Ethiopia Claims Commission rendered its final awards on damages on August 17, 2009, awarding compensation in respect of claims by both Eritrea and Ethiopia for violations of international law previously found by the Commission (see, Eritrea-Ethiopia Claims Commission, Press Release, August 17, 2009, available at http://www.pca-cpa.org/upload/files/EECC%20Final%20Awards%20Press%20Release.pdf).
Notes:The Eritrea-Ethiopia Claims Commission, a constituent of the Permanent Court of Arbitration in the Hague, was established and operated pursuant to Article 5 of the Agreement signed in Algiers on December 12, 2000 between the Governments of the State of Eritrea and the Federal Democratic Republic of Ethiopia. The Commission was established to “decide through binding arbitration all claims for loss, damage or injury by one Government against the other” related to the 1998-2000 conflict between them that “result from violations of international humanitarian law, including the 1949 Geneva Conventions, or other violations of international law” (For more information, see: http://www.pca-cpa.org/showpage.asp?pag_id=1151).
CRIN comments: CRIN believes that this decision is inconsistent with the CRC. The Convention on the Rights of the Child applies equally in times of peace and emergency, and wartime measures that violate children’s rights cannot be exempted from international human rights law.
Citation: Civilians Claims–Eritrea’s Claims 15, 16, 23 and 27-32 (Eritrea v. Ethiopia), Partial Award, Eritrea-Ethiopia Claims Commission (Dec. 17, 2004); ICGJ 354 (PCA 2004).
Link to full judgement: http://legal.un.org/riaa/cases/vol_XXVI/195-247.pdf