The genius of the Algiers Agreement was that it incorporated within itself another agreement that is usually negotiated after the fact—the Implementation Agreement. It was a tight, escape-proof document that left nothing to chance: it followed a linear process—from signing of document, to demarcation.  

The weakness of the Algiers Agreement was that it did not make both countries feel that they are equal stakeholders in the outcome.  Ethiopia had three priorities—and it didn’t get a single one of its priorities through the Agreement and it, therefore, treated the Agreement not as bond, but a formality it had to go through the motions for the sake of appearances. Eritrea had four priorities—the agreement adequately addressed three of the four priorities. What it didn’t get was the one that would have prevented Ethiopia from defying the ruling and getting away with it: a guarantor role for the UN or the US.  So here we are, almost nine years later, in a state of no war, no peace, but a full-fledged state of proxy war.

THE PRIORITIES  

Following the breakout of the war, the two countries developed two narratives, based on their priorities.  For Eritrea, the priorities were getting assurances that (a) each country would respect the sovereignty of the other; (b) that demarcation would be carried out in accordance with colonial treaties; (c) that said demarcation process would be expeditious and (d) that there would be a guarantor that will enforce compliance.  

Eritrea got what it wanted on the issue of sovereignty. This may appear a throw-away line, but you will see why this was important when you take a look at Ethiopia’s priorities. Eritrea also prevailed on the terms of the demarcation—colonial treaties—although it had to accommodate Ethiopia’s request that this always be accompanied by “and applicable international law.”  Eritrea also got what it wanted in the design of the demarcation process—it was so expedited that it took less time (14 months) to render a verdict than the far less bloody border conflict with Yemen (4 years.)  But it didn’t—and it couldn’t, really—get the guaranty. I will elaborate on this issue. 

For Ethiopia, the priorities were (a) a return to status quo ante; (b) to reduce forever the potential of a threat from Eritrea now and in the future; (c) to return the Eritrea-Ethiopia relationship to the type it was in 1991-1997 because it was only that kind of relationship that could have made Ethiopia agree to being a landlocked nation. 

None of these objectives were met by the Agreement. Either because they couldn’t or because Ethiopia’s patience ran out. Even status quo ante—returning land and administration to pre-May 6, 1998—was not the result of goodwill or negotiation—but two major offensives (February 99, May 2000.)  Thus, Ethiopia does not feel any affinity for an agreement that merely formalized a done deal.  

The second thing Ethiopia wanted was for Eritrea to agree to become a Costa Rica. A nation of militias and a police force, but no army to speak of. This is done when one country decisively defeats another country; however, contrary to the war-era daily bulletins of Ethiopia that it had completely annihilated, destroyed, and chased the remnants of the EDF to oblivion, the claims were not supported by the facts. This reality, and the fact that the agreement cited “respect for the sovereignty” precluded this from being incorporated in the Agreement. 

The third thing Ethiopia wants (another wish that is nowhere in the Agreement) is another return-to-status-quo-ante: a relationship where it could have easy access to Eritrean ports; easy cross border trade; easy movement of people; a mutual defense agreement—all the things that two good neighbors have. In short, a relationship it had with the PFDJ—but this time with the State of Eritrea, and not the PFDJ. 

Ethiopia can get this in one of two ways: via the government of Eritrea (which has indicated that it would consider this, but only after the border is demarcated) or via substitutes to the government of Eritrea (who may be more amenable to this because, on its merit, there is nothing wrong with two neighbors having a neighborly relationship.)  

The point is that the Ethiopian government does not think it got anything out of the Algiers Agreement and there is nothing in its history to suggest that it can be “shamed” into living up to its obligation nonetheless. We don’t have to dig deep into history to review this. In August 1999, the mediators who drafted up and negotiated the OAU Framework Agreement and its Modalities came up with the Technical Arrangements with the understanding that both Eritrea and Ethiopia would accept-or-reject (“take it or leave it”) but not ask to renegotiate it.  Not only did Ethiopia try to renegotiate it, but it told the Mediators it is doing so because the Arrangement—which they drafted—is not aligned with Framework and its Modalities, which they also drafted. So, are we really shocked when Ethiopia tells the Eritrea Ethiopia Boundary Commission, a panel of world-class lawyers and judges—that they misunderstood the terms of the Algiers Agreement? 

The answer is: we are not, and that is why we insisted that the UN and the US guarantee the enforcement of the agreement. The problem is, there is no such language in the Agreement—and there is nothing in the 60 year history of the UN that would indicate that this is the type of dispute that it guarantees. 

NO GUARANTOR    

There is an explicit reference to “guarantor” in the Algiers Agreement.  But not the one that Eritreans have in mind: of the UN enforcing the EEBC decision. The guarantor role that is mentioned in the Cessation of Hostilities Agreement is one for the UN and the AU (not the US, by the way) and the guarantee comes in the form of the hammer of Chapter VII (a binding UN resolution enforcing punitive measures.) But this guarantor role is only as it relates to Eritrea and Ethiopia’s troop deployment from fixed posts prior to demarcation. 

Ethiopia commits itself not to move its troops beyond the positions it administered before 6 May 1998. Eritrea commits itself not to move its troops beyond the positions defined in paragraph 12 above. The OAU and the United Nations commit themselves to guarantee the respect for this commitment of the two Parties until the determination of the common border on the basis of pertinent colonial treaties and applicable international law, through delimitation/demarcation and in case of controversy, through the appropriate mechanism of arbitration. 

If the UN dropped the hammer of Chapter VII every time a nation was defiant, it would have imposed it on Eritrea for repositioning its troops within the TSZ—which is more in keeping with the language of the agreement. 

Throughout the history of the UN,  Chapter VII, covering articles 39 through 51 of its charter, has been applied sparingly and for acts that are, prima facie, “threats to peace, breaches of the peace, and acts of aggression” (The title of Chapter VII.) There are 192 member states and, in its 60 year history, the UN has invoked Chapter VII on only 24 nations. The threshold that has to be met is not a confrontational or even a deteriorating relationship between two member states. It is war (Palestine, Eritrea/Ethiopia), apartheid (South Africa), institutionalized racism (Rhodesia), invasion (Iraq, Argentina), genocide and ethnic cleansing (Rwanda, Yugoslavia), civil war (Haiti, Sierra Leone, Liberia, Congo, East Timor), failed state (Somalia), or state-sponsored assassination attempt (Sudan.) 

Upsala University’s Department of Peace and Conflict Research has a summary of all UN resolutions invoking Chapter VII from 1948 onwards, and you can judge for yourself whether Eritrea’s frequent invitation to the UN to shoulder its “moral and legal obligation” will ever be heard. Check out this publication (pdf) here. 

Because the UN is reluctant to impose Chapter VII, sometimes its measures are a little too little and too late.  Let’s look at our own example. The UN “urged” (a non-binding resolution) nations not to sell arms to Eritrea and Ethiopia in February 1999 (after the Second Offensive)—which was enthusiastically ignored--and invoked Chapter VII and full weapons embargo in May 2000 (after the Third Offensive)—when the two were armed to the teeth. This arms embargo was lifted a year later—allowing the entire arms bazaar of Russia, Belarus, Bulgaria, China, Israel, North Korea, Romania and Ukraine to be unloaded on the two poor nations.  

Based on the 60-year history of UN resolutions, it would appear that Ethiopia’s defiance of the EEBC does not rise to the level of invoking Chapter VII resolution—a calculation that Ethiopia must have made when it decided to ignore the EEBC ruling.  

What about the purse-strings pressure of rich nations? 

If only the EU and the US could withhold aid to Ethiopia…But attaching aid to good governance is no longer considered acceptable by all Africans, including Eritrea, who made a hero of Mugabe at the last EU-AU summit. Every time the US and EU make aid conditional to good governance—and abiding by contractual agreements is indicative of good governance—Africa has cried foul and the US and EU is not likely to do it—unless its interest is at stake. And its interest is hardly at stake in the Eritrea/Ethiopia disagreement—unless the disagreement degenerates into a bloody feud.  

ETHIOPIA'S UNFULFILLED AIM 

When Ethiopia could not destroy Eritrea’s armed force via war, and when it couldn’t dictate a treaty that imposes unilateral disarmament, it opted for another alternative: TSZ.  The logic was: if we cannot destroy Eritrea’s army, we can contain it and limit its reach.  Thus, a TSZ--entirely in Eritrea-proper—was dictated.  While this was the poison pill Eritrea had to accept—with the understanding that the demarcation process would be swift—for Ethiopia, it seemed like the next best thing to disarming Eritrea.  

In the final EEBC meeting between Eritrea and Ethiopia (a partial transcript of which was published by awate.com), there is a remarkable exchange between Ethiopian Ambassador Yimer and EEBC President Sir Elihu Lauterpacht which shows to what degree Ethiopia is so vested in defining a part of Eritrea: 

When we negotiated this agreement, this provision was the one that took more or less the longest to negotiate, the 25 kilometres, the name and everything. Now, when the TSZ was established it was supposed to be monitored by the peacekeeping mission of the UN….It seems as if this was something that was done in a couple of hours. No, I was there. Professor Brilmayer said she also contributed. I did not say that, I did not say it was exposed to only one, but I was physically there day in and day out when we negotiated this provision, and in the first of this violation of paragraph 12, the cessation of hostilities argument, now on the ground which the Security Council have drawn attention to, we cannot continue or embark upon any discussion of demarcation. That is the clear and unambiguous position of my government. 

Ethiopia, which claimed that one of its objectives was to “teach Eritrea a lesson” seems to have come to the conclusion that for the lesson to be enduring, the penalty must last as long as possible and be as painful as possible.  If pressed, Ethiopia would probably say that the TSZ is the only thing it got out of the Algiers Agreement. It is not a coincidence that Ethiopia is, generally speaking, deferential to and respectful of UNMEE and full of contempt for EEBC while Eritrea is deferential to and respectful of EEBC but full of contempt for UNMEE. 

According to the Cessation of Hostilities Agreement, UNMEE’s mission is supposed to end as soon as the demarcation process is completed. Is “virtual demarcation” the completion of the process—particularly when the only reason it is virtual and not actual is because Ethiopia has impeded the process?  Another non-surprise: yes, says Eritrea; it is “legal fiction” says Ethiopia.  

NO PEACE 

If a UN, a US or an EU cannot compel Ethiopia to return land ruled Eritrean, what options is Eritrea left with? A series of unattractive options: to wage a “just war” and re-take its land; to wage a proxy war and weaken the Ethiopian government to a point where it sues for peace; to wage a multi-pronged proxy war bringing about the demise of the Ethiopian government and a new government more amenable to fulfilling its legal obligations. 

Unless the Eritrean government believes its own press releases (a dangerous possibility) it must be aware that all of these options are fraught with danger and practically unachievable. 

Similarly, Ethiopia must know that the TSZ will be dismantled soon; that as long as it occupies sovereign Eritrean territories, the UN will never exhaust its resolutions; that no Eritrean will agree to terms of surrender that impose size of its army externally; and that an excellent neighborly relationship can be negotiated but never dictated.  

PROXY WAR MASKS  

In May 8-10, 2000, a UN mission headed by Richard Holbrooke, visited Eritrea and Ethiopia, on a last-ditch effort to avert war.  Its report included this statement: 

The difference between the two sides, while real, are clearly, in the view of the mission, relatively small and manageable and could be resolved by intensive negotiations over time.  

Two days later, the two nations were engaged in a ferocious war primarily because Ethiopia, as the contemporaneous reports show, had its “war mask on.” 

Now, as before, the two sides have real differences—but this too can be managed by a super-mediator who enjoys the confidence of both sides.  Unfortunately for us, there is no such person and, if there were, the two leaders don’t have the stomach for proximity talks, much less “intensive negotiations.” 

What they have opted for are two distinctly different campaigns to position their governments as the superior bet.  

The Ethiopian Government’s package: Present yourself as US’s indispensable ally in the anti-terrorism campaign in the Horn—making Ethiopia, “Egypt, but without the Arabs”; participate in all of Africa’s peacekeeping missions (Burundi, Somalia, Sudan) and present Europe the image of a well-governed state making strides in democratization.   

The Eritrean Government’s package: Present yourself as the voice of the nations who think that the US campaign against terror, while legitimate, is flawed and guilty of overreach; establish a reputation not for peacekeeping but peacemaking (Sudan, Chad, Somalia), and present Europe an image of a nation that works (Don’t look at Human Rights Watch, study the Human Development Index!) 

Each package requires the demonization of the other—a project for which the two governments seem to have inexhaustible supply of energy.  No war, no peace, just proxy war masks. 

It is an interesting competition, and a great contrast for a worthy academic paper—if it was happening to two distant countries.  But when you are living it, and your people are living it, and the cost is so much, it is all too clear that these ambitious plans are a protest and a food riot away from collapsing.   

My vote is for creative diplomacy—one where Ethiopia agrees to abide by the EEBC ruling unconditionally and Eritrea says that although it is not bound to have a discussion, and without committing itself to any obligation, will engage Ethiopia in dialogue, in the interest of lasting peace and good neighborliness. This may require “intensive negotiations over time”—but not as much time as the current macro-plans that the two governments are involved in now.  And no war masks are required—not even proxy war masks. 
-

But I don't have the right to vote--not even a proxy vote.  Just to express myself, at least from a safe distance, which I just did.

This email address is being protected from spam bots, you need Javascript enabled to view it