For Ethiopia, Mr. Picard

Ethiopia will not engage in appeasement. Ethiopia will not be pressured by Eritrea’s illegal military provocations. Demarcation cannot proceed without Eritrea’s full compliance with its fundamental legal obligations. The security situation today along the border has dramatically and dangerously deteriorated due to Eritrea's significant escalation of belligerent behaviour in open defiance of fundamental principles of international law, the Algiers agreements and the demands of the Security Council. Eritrea has simply obliterated the temporary security zone. Eritrea has made UNMEE irrelevant. And beyond that Eritrea has engaged in terrorist activities against Ethiopia.

For The Commission, President Lauterpacht

We are not concerned with the question of any alleged assistance by Eritrea to Somalia. That is just not part of our business.

This is followed by an intermission. During the intermission, Ethiopia’s co-agent, Ambassador Yimer apparently approached President Lauterpacht to register his reservations and the two exchange their respective viewpoints.  Following the intermission, President Lauterpacht asks the ambassador to tell the entire Commission what he told him privately. 

For Ethiopia, Ambassador Yimer:

We are saying that demarcation cannot take place, we cannot discuss demarcation issues here or anywhere in the face of a flagrant violation of the cessation of hostilities agreement by Eritrea. That is what I tried to make very, very clear to the President of the Commission. Now, the President knows what he said to me.  

He said to me that the Commission is not concerned with the cessation of the hostilities agreement. It is none of our business. That is very unfortunate. If it is none of your business, then you should not mention even it in the agenda: partial withdrawal would be enough for Eritrea, which the Security Council did not say; partially restoring UNMEE would be enough. Now, when I say this, that this goes against this agreement, I have been told that this is not our business, we have to demarcate the boundary, but I say that, when we negotiated this agreement, it was to demarcate the boundaries that we agreed to withdraw and we agreed on condition that the TSZ would be established. This agreement would not have taken place without a TSZ provision. It is as simple as that.

From this exchange, it appears that Eritrea had proposed to restore the TSZ and UNMEE to the extent that this facilitates demarcation, a proposal that seems acceptable to EEBC but one which the Ethiopian ambassador finds objectionable.  He indicated that Ethiopia’s position is that no discussion “can take place on the demarcation issue a long as full compliance with the cessation of hostilities agreement on TSZ and UNMEE is restored; not in so far as, not as long as it does not affect the work of EEBC. That is totally unacceptable to us.” The Commission tries to get assurances from Eritrea on what is meant by “in so far as” and “as long as”:

For The Commission, President Lauterpacht

Is that an open-ended commitment so that even if the needs of the EEBC operations are were to call for the total departure of Eritrean forces from the TSZ, would that be covered by this assurance?

For Eritrea, Professor Brilmayer

Mr President, we mean this in the most literal way. We have implicitly contemplated the question that you are raising and we mean the commitment to include, if I could say in so far the present position impinges on EEBC operations, that is your interpretation is correct. We assume that the Commission would only make that determination if it was justified by the facts, so we have confidence that this would not be taken for granted as some kind of free-wheeling grant of authority.

For Ethiopia, Ambassador Yimer:

The question of qualifying it, as Professor Brilmayer said and as you said, how much and where, no, we cannot accept that. The full integrity - we have used different language – of the TSZ should be restored because once upon a time - there is this famous phrase “once upon time” - there was no problem. It was full TSZ. There were no Eritrean troops, no equipment, UNMEE was in full control of the TSZ. Now it is not. We are saying that qualification, “extent”, “the scope”, is out of the question for us. It is a matter of national interest.

For the Commission, Judge Schwebel:

Sir, if Eritrea were to withdraw all of its forces from the TSZ, would the Government of Ethiopia be in a position to commit itself unconditionally to cooperate in the process of demarcation. 

For Ethiopia, Ambassador Yimer:

...you are putting a very hypothetical question - I do not know where it will materialise - that assuming Eritrea withdraws fully troops and equipment from the TSZ, would you cooperate? Then we will be back and we will engage in the discussion of demarcation.

For the Commission, Judge Ajibola

Supposing - and this is the hypothetical again – Eritrea is willing to say, “All right, we will move out of the whole of TSZ”, are you ready and willing to comply with these five conditions and implement all of them? [1. Unqualified acceptance of the 2002 delimitation decision without requiring broader ranging negotiations between the parties. 2. Lift restrictions on movement of EEBC personnel.3. Provide security assurances. 4. Meet payment arrears. 5. Allow free access to pillar locations]

For Ethiopia, Ambassador Yimer 

We have repeatedly said that we accept the delimitation decision of the Commission. That is at the highest level; no lesser person than the Prime Minister in Parliament repeats it every time the occasion arises… We indicate more than that, we say “unqualified”. At one point you know that we said that we accept this in principle. We have abandoned that. When it comes to demarcation, we are saying, as we said all along, that we are prepared to engage in discussion on demarcation, but we have a problem now. I would ask Mr Picard to respond to the second part of your question.

For Ethiopia, Mr. Picard:

...once this serious problem of return of the temporary security zone to its proper state, as required by the Algiers Agreements, and once UNMEE is allowed to fulfil its obligations by no longer being hindered in its operations throughout the zone, once those problems are dealt with, the other points that the Commission has raised are certainly not going to provide a problem.

For the Commission, Professor Reisman:

What does that mean, that it will not be a problem to engage in discussion or it will, in fact, be complied with as prescribed by the Commission?

For Ethiopia, Mr. Picard:

What I have said is that, once that agreement, if it should be undertaken and corresponding action to show that it is more than just words is undertaken, then Ethiopia is prepared to move ahead demarcation. However, I must make one very important qualification. This was a point I made, I thought, clearly in the opening statement, but Ethiopia is not going to be intimidated, Ethiopia is not going to acquiesce in violations of Eritrea’s treaty commitments. And that certainly includes the activities, the use of force and the threats of force, that Eritrea has undertaken not just along the boundary but in other parts of Ethiopia through their support of terrorist organisations. This is a point that I want to emphasise, because it was in the opening statement. It is very important.

For the Commission, Professor Reisman:

First the Ambassador says Ethiopia disagrees with the conception of demarcation that has been described by the Commission, and is only prepared to discuss it. Second there are additional conditions, activities alleged to be conducted by or on behalf of Eritrea in other parts of Ethiopia and in Somalia must also be addressed; so in fact there are three conditions, and even if those conditions are fulfilled the most that Ambassador Yimer is saying is that Ethiopia is then prepared to engage in discussion on demarcation. That is a quotation. Have I misunderstood you?

For Ethiopia, Mr. Picard:

Compliance requires that their forces be withdrawn from the TSZ, that UNMEE be allowed freedom of operation throughout the TSZ and that Eritrea cease its threats and use of force against Ethiopia, those things being prohibited by the Algiers agreements, including their use of force and threats of force in other parts of Ethiopia. So those are the conditions that we have rather generally described as full compliance with the terms of the Algiers agreements. That is what the Government of Ethiopia believes is simply necessary before we can get back to work on implementation of the Commission's delimitation decision. Now with respect to how that implementation might unfold we simply do not feel it is productive to get into detailed discussions of that because in our view the violations are of such overwhelming importance that it simply is not productive to talk about what if something might occur which seems unlikely to be able to occur. We certainly did not hear Professor Brilmayer today make any commitment that Eritrea would return to compliance. We heard words that certainly the President interpreted in a very favourable light but we have not heard Eritrea say that they would be prepared even to withdraw completely, much less to allow UNMEE to return to its freedom of operation in the zone.

For Ethiopia, Ambassador Yimer:

One point which somehow bothers me is when we discuss this Algiers agreement cessation of hostilities and TSZ the question put by the Commissioners is would Ethiopia do this if Eritrea withdraws. My point is that if somebody is in violation of an agreement and he is there when he is not supposed to be there, he should not ask for some concession somewhere for something which he did which is unlawful…. They should not be there. Now some quid pro quo is trying to be established between the Algiers agreement and what we should give Eritrea as an incentive or something so that it can comply with Article 12 of the Algiers Agreement on cessation of hostilities. We cannot do that. That is what I say before anything else, before anything constructive, any discussion. The situation, the so called status quo ante has to be restored.

For the Commission, Professor Reisman:

The commissioner points out that Eritrea withdrawing from the TSZ is more important than why it should withdraw. Then he attempts to explain that the Commission was not calling for Eritrea’s partial withdrawal from the TSZ or partial return of UNMEE:

It did not refer to “partial” - either partial restoration or partial withdrawal from the TSZ - what it said was restoration or withdrawal to the extent that this is necessary to avoid impinging on the Commission’s activities. Now, that qualification did not exclude total withdrawal of forces or total restoration of UNMEE’s position. So it was not a request based on a partial withdrawal - I would just like to correct that - but it leads on to where I think we had got to. If I read the letter which Professor Brilmayer sent this morning and add to it the comments which you, Ambassador Yimer, have made this afternoon, I get to this point regarding UNMEE….

As the planned demarcation process gets underway, the Government of Eritrea is committed to supporting UNMEE’s operations as they bear on the demarcation as provided in the Algiers Agreement. That is in the letter. To which I would add, “it being understood by Ethiopia that those operations require the restoration of UNMEE’s freedom of operations to what it was three years ago”, and it may be four years or two years but whatever it was in the past, “being understood by Ethiopia that those operations require the restoration of UNMEE’s freedom of operations to what it was three years ago”

Let me turn to the TSZ. The position is somewhat similar. As soon as all the arrangements for demarcation are in place, Eritrea will move any Eritrean forces that might meet this deposition, it being understood by Ethiopia that this requires the removal of all Eritrean forces from the TSZ and by Eritrea….

What we are left with are three questions of fact. First, what UNMEE operations do bear on the demarcation? Secondly, what Eritrean forces in the TSZ do impinge upon EEBC operations? Those two questions give rise to a third: and how are those questions of fact to be determined?

For Ethiopia, Ambassador Yimer

...the problem for us is that in that characterisation there are these phrases, “as the demarcation ...” It is what the letter says…“as the planned demarcation process gets underway”, then something will happen with regard to TSZ and UNMEE. That is where we defer. There is no such thing as “as the planned demarcation process gets underway”.

We are saying that there cannot be any demarcation plan underway until there is a total and full restoration of UNMEE and total and full withdrawal of Eritrean forces with their equipment from TSZ. It cannot start. There is a condition precedent for this. That is the problem that we have with your formulation. “As understood by Ethiopia”, we do not want to understand something, it is straightforward and it is simple. That is how I put it to the President and I repeated it to you. We have an agreement which requires that there should not be any Eritrean troops or equipment in the TSZ and UNMEE should be fully free as it used to be. That has to be restored in full before we start what you are saying. “As understood”, “this is not excluded”, that is not going to help.

We are not having a point of convergence here. We are saying that, rather than getting into these complications, we say - and we have authority here - because this treaty is not renounced, it is not terminated, if we go into suspension and termination of treaties that is another matter, because there could be a material breach, that is a question which could have been entertained, but we did not and we do not want to do that, but that is the problem we have.

For the Commission, Judge Schwebel:

If the Eritrean Government were prepared to commit itself to total withdrawal from the TSZ and restoration of the status quo ante of UNMEE, would your Government be in a position to commit itself to accept the demarcation of the border pursuant to the coordinates set out in the November 2006 statement of the Commission?

For Ethiopia, Ambassador Yimer

Thank you, Judge. Now, I am coming back to conditions. Is the implication that, if you do not give that commitment, then Eritrea would be justified in staying in the TSZ? Are you saying that?

For the Commission, Judge Schewebel:

No, I am not saying that. I am simply asking, if Eritrea does do what you require it to do, is the position of Ethiopia that it will accept the coordinates set out in the November 2006 statement of the Commission or does it envisage another procedure?

For Ethiopia, Ambassador Yimer

Let me repeat what I said before. This is a very hypothetical question, of course. Let us assume that the TSZ has been restored, no Eritrea troops or heavy equipment are there, and UNMEE is now back in full operation like before, now you are asking me, are you prepared to accept our coordinates? I said once this is done, the status quo ante in the TSZ is restored, the Ethiopian Government is prepared to sit down and discuss with you a demarcation process, which is the second phase of your mandate. I said that in the other room and I repeat that now. We will embark upon the discussion of the demarcation process, because it has stopped now. That is what I said. That is as clear as I can put it.

For the Commission, Judge Schewebel:

Mr. Ambassador, if what you are saying is that assuming the TSZ situation is secured and the UNMEE situation is secured, what we will have is what we had before the incursion of Eritrean forces into the TSZ and before the restrictions on UNMEE were imposed, namely that Ethiopia will say that we should then discuss demarcation and negotiate adjustments in order to meet the preferred position of Ethiopia. Is that what you are saying or are you saying that, no, we have abandoned acceptance only in principle of the delimitation and we are prepared to apply the delimitation by demarcation without broader negotiations and without discussion, but to do it, and the Commission has set out how it believes it should be done in the November coordinates.

For Ethiopia, Ambassador Yimer:

I come back to what I have said. I am not abandoning any position, I am not saying anything new from what my government have been saying all along. There is a written decision, with the words we are not happy but we have accepted it unconditionally. This has to be translated with physical representation of the boundary on the ground. That is called demarcation. Demarcation is in itself a process and I state we will be prepared to engage in demarcation process once that situation, which is a most unfavourable situation on the ground, is removed. That is what I say and I cannot put it in any different way.

I am not saying we would not engage in a discussion and there will not be any demarcation. There will be and we have to sit down and discuss and be prepared to discuss demarcation without any condition to be engaged with you. I am not sayingwith this coordinate or that coordinate, no, I am not going to go into that, but there is a very serious situation which has to be removed now.

For Ethiopia, Mr. Picard

Judge Schwebel, if I could just add one additional point. I believe you said that once there is a withdrawal from the TSZ and once UNMEE is back in full operational control of the zone then the situation would have been returned to what it was before. I have to take issue with that because what we have seen over the past year is a constant and continuing and intensive militarisation of the situation by Eritrea in material breach and violation of the Algiers agreement which forbids the use of force or the threat of force against Ethiopia, and so that compliance with that condition would have to be restored. Thank you, sir.

For the Commission, President Lauterpacht

Thank you all very much for your various contribution so far, and although the hour is drawing on Professor Brilmayer would like to say something, so please do.

For Eritrea, Professor Brilmayer:

I would remind everyone in the room of the second to last paragraph in the letter that I sent this morning. "in light of the problems" - I will not reiterate what problems there have been over the last five years - "it is unfortunately necessary for Eritrea to inform the Commission", and here I would like to say that it is unfortunately necessary - "that the undertakings described above are predicated on the assumption that Ethiopia will fully meet its legal obligations.”

Now I do not mean to be overly punctilious about insisting on 100 per cent every person, every this, that or the other thing, there are a lot of legal obligations that could be listed but I do not mean to try to say that we are not going to do anything until there is 100 per cent every hand etc. That is not the point I want to make, because that simply becomes a recipe for keeping anything from happening. I want to make it clear that that is not what I am saying. What I do mean to say though is that I hope that the Commission can understand the reasons that we have for being concerned about reciprocity.

Ethiopia has said on a number of occasions that it is without any qualification accepting the delimitation decision, but when Ethiopia explains what that means, and alludes to the ideal world of life three years ago as having been the perfect calm atmosphere in which to make demarcation decisions, well the situation three years ago really was not quite satisfactory because it was not going anywhere. We have been given a long list of things that Eritrea has to do before Ethiopia will engage in discussions, and it has made it clear that by engaging in discussions it does not mean follow the directions given by the Commission, it does not mean what we would like it to mean. But it is not simply that the pay off is so evanescent and hypothetical, it is also that the conditions that Ethiopia finds itself entitled to place on the willingness to engage in discussions.

President Lauterpacht, the question you asked me was one about per cents and where 100 per cent fell within, and I said Yes, we are talking about whatever per cent it takes on the assumption that we can trust the Commission's willingness and the Commission's fairness to make a genuine determination and not a pro forma determination that 100 per cent is automatically necessary. but the problem is not whether it is 100 per cent that is required of Eritrea, the problem is whether anything is forthcoming from Ethiopia, and here the only place that we can get an answer is from Ethiopia, and Ethiopia says that it is unqualified in its acceptance of the delimitation decision and that what that means is that they are prepared to discuss demarcation. That really is not the kind of reciprocity that Eritrea feels like it needs and I am sorry to end on a note of less than full confidence for what the Commission is trying to do, but it is something that I do need to reiterate and that is what I want to say.

For the Commission, President Lauterpacht

Thank you, Professor Brilmayer. I think a point has been reached at which we really ought to adjourn for the day with a view to resuming our consideration of the matter tomorrow when we are fresh

The next day, the two sides were asked if they had changed their minds.  They had not.

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