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III. THE CONFLICT BETWEEN ERITREA AND ETHIOPIA
Armed Opposition to the Derg (1974-1991)
The Eritrean People's Liberation Front (EPLF) carried on almost thirty years of armed opposition to the Ethiopian emperor's rule, and later the Derg, in a movement to liberate Eritrea from Ethiopian control. Eritrea had been a colony of Italy from the turn of the century until 1941 when, during World War II, Italian forces were defeated by British colonial troops advancing from neighboring Sudan. Many Eritreans expected independence for Eritrea during the decolonization period that followed the war, but the British Military Administration, which governed Eritrea from 1941 to 1952, planned to partition the country between Ethiopia and Sudan. In December 1950, the United Nations instead issued a resolution making Eritrea an autonomous unit federated to Ethiopia. In 1962 Emperor Haile Selassie of Ethiopia unilaterally annexed the territory of Eritrea and proclaimed it a province of Ethiopia.5 Eritreans were from that time declared to be Ethiopians: article 9 of the Order declared that "All inhabitants of the territory of Eritrea except persons possessing foreign nationality are hereby declared to be subjects of our Empire and Ethiopian nationals."6 The annexation of Eritrea triggered a decades long war of independence. By 1980, the EPLF had emerged as the dominant liberation front among various competing rebel factions fighting for Eritrea's independence. The EPLF proposed as early as 1980 that Eritrea's status vis a vis Ethiopia be resolved by an internationally supervised referendum of the territory's inhabitants, but the Derg rejected the idea out of hand.
In May 1991, the anti-Derg alliance between the EPLF and the EPRDF finally gained control; first the ERPDF took Addis Ababa, then, a few days later, the EPLF won control of Asmara. Following the fall of the Derg, the EPRDF in July put in place a transitional government that was to have led Ethiopia towards democracy.7 The EPLF in late May named a provisional Eritrean government to guide the newly liberated Eritrea to formal independence two years later.
On April 7, 1992 the Provisional government of Eritrea issued "Referendum Proclamation, No. 22/1992," which set forth detailed procedures for carrying out the referendum and established the Referendum Commission of Eritrea (RCE) to oversee the planning and implementation of the referendum. In particular, the RCE was charged with "(a) guaranteeing a referendum that is free and fair; (b) identification and registration of eligible voters; c) creation of the mechanism of the referendum; (d) publicizing the referendum and informing voters."10 Eligibility for the vote depended upon three criteria.11 First, the individual had to be at least eighteen years of age during the registration period. Second, while still under the federal umbrella of Ethiopian citizenship, the individual had be an Eritrean "citizen," as defined by the Provisional Government in its April 6th "Eritrean Nationality Proclamation No.21/1992."12 Third, the individual had to possess an "Identification Card"13 issued to those deemed by the Eritrean Department of Internal Affairs to be eligible for Eritrean citizenship.14 Registered voters received a registration card bearing "i) the registrant's name, ii) his registration number; iii) the location and name or number of his polling station, iv) the name or number of the electoral district in which the registrant is registered to vote; and v) the signature of the registrant."15 The RCE considered as eligible voters those individuals to whom the Department of Internal Affairs of the provisional government had issued an Eritrean national identification card. The former referendum commissioner, Amare Tekle, told Human Rights Watch that the referendum identification card was only meant to confirm people's Eritrean origin, and not Eritrean citizenship, adding "voters couldn't be citizens of Eritrea, since the Eritrean state didn't exist at the time of their registration."16 Based on these criteria on voter registration, the RCE registered 1,110,745 people during the last four months of 1992; of these, 60,129 were registered in parts of Ethiopia other than Eritrea, 164,842 in Sudan, and 84,370 in other parts of the world, mainly the Middle East, Europe, and North America.17 A United Nations-supervised referendum on Eritrean statehood was ultimately held from April 23 to 25, 1993. The transitional government of Ethiopia sent a thirteen-person observation mission to observe the polling in Eritrea and actively facilitated the planning and conduct of the referendum elsewhere in Ethiopia.18 Around the world, over one million people in more than forty countries took part in the referendum.19 More than 99 percent of voters opted for Eritrea to separate from Ethiopia and become an independent state.20 The vote was certified as free and fair by U.N. observers as well as by the Ethiopian government.21 When Eritrea declared its independence, Ethiopia was among the first countries to recognize the new state. The newly-established Federal Democratic Republic of Ethiopia and newly-independent Eritrea initially became close partners. A 1993 agreement between the ministries of internal affairs of the two countries confirmed an earlier agreement to exempt citizens of the other country from entry visa requirements.22 This provision was intended "to promote and further consolidate the historical and cultural relationships long cherished by the peoples of the two countries, further strengthen the affinity and bonds of friendship between them."23 Article 2.3 of the same agreement declared that "until such time that the citizens of one of the sides residing in the other's territory are fully identified and until the issue of citizenship is settled in both countries, the traditional right of citizens of one side to live in the other's territory shall be respected."24 In addition to promoting the uninhibited flow of people and goods across their border, the two countries agreed to conduct joint security training programs, and to cooperate on police training and operations, drug-trafficking control, motor-vehicle regulation, and other issues.25 They also established a high-level joint governmental commission to promote political cooperation and economic integration between them. So close were relations between the two countries that in June 1996 President Issayas Afewerki of Eritrea told an Addis Ababa newspaper that the border between Eritrea and Ethiopia was becoming "meaningless."26 The two countries also worked together on the regional stage. They revived the Intergovernmental Authority on Development (IGAD)-a sub-regional organization with Ethiopia, Eritrea, Sudan, Somalia, Djibouti, Kenya, and Uganda as members-and worked to expand IGAD's mandate from environmental preservation to economic integration and conflict resolution. Indeed, Ethiopia and Eritrea were initially the driving force behind IGAD's efforts to settle two of the most protracted and deadly conflicts in the continent, the civil wars in Sudan and Somalia. Perhaps because the new governments of Ethiopia and Eritrea came to power as allies against a common enemy and therefore felt a great deal of trust for each other, certain aspects of their bilateral relationship-including how to define the citizenship of people of Eritrean origin living in Ethiopia after Eritrea's independence, and the delineation of their common border-were never resolved in formal agreements. These unresolved issues as well as economic issues gradually led to tensions and hostility between the two countries. Defining the Nationality of People of Eritrean Origin in Ethiopia
For many, the establishment of an Eritrean provisional government and the promulgation of new laws by both this de facto authority and the new Ethiopian government raised immediate questions over the status of people of Eritrean origin in Ethiopia. Public resentment over the role of people of Eritrean origin in business and government after 1991 coincided with protests at the dominant role of Tigrean leaders in the new government. This criticism was fueled by protests that even as the new Ethiopian leaders restructured the state based on what it defined as its constituent nations and nationalities, the Oromo, Amhara, Somali, and others were underrepresented and marginalized, while the Tigrean nationality dominated. Indignation over the standing of those of Eritrean origin, however, was from Eritrea's independence in 1993 readily transformed into a questioning of the loyalties-and ultimately the right to remain as citizens-of members of the Eritrean minority within the new Ethiopia. Prior to 1991, all people of Eritrean origin born in Ethiopia, whether residing in the province of Eritrea or in other provinces, were Ethiopian citizens.27 Under Ethiopian law in force in 1991, an Ethiopian citizen who acquired another nationality in a sovereign state would lose his or her Ethiopian citizenship, although the law stipulated that such an individual "may always obtain the benefit of Ethiopian Nationality when they return to reside in the country and apply to the Imperial Government for re-admission."28 The new Ethiopian Constitution promulgated in 1995 defines an Ethiopian citizen as "any woman or man, either of whose parents is an Ethiopian citizen."29 It further states that "no Ethiopian citizen shall be deprived of his or her Ethiopian citizenship against his or her will."30 The 1995 Constitution does not address the issue of dual citizenship. Eritrean law promulgated in 1992 by its then de facto authority provided for dual citizenship in certain defined circumstances. The 1992 Eritrean Nationality Proclamation (Proclamation No. 21/1992) provides that "any person born to a parent of Eritrean origin in Eritrea or abroad is an Eritrean national by birth,"31 and defines a person "of Eritrean origin" as one who was resident in Eritrea in 1933.32 The proclamation further directs that "[a]ny person who is an Eritrean by origin or birth shall, upon application, be given a certificate of nationality by the Department of Internal Affairs."33 This notwithstanding, the proclamation also anticipates a distinct procedure for those wishing to renounce foreign citizenship, although this was not a part of the process of registration for purposes of the referendum."34 The Ethiopian authorities' central argument on the nationality issue after war broke out was that the fact that thousands of Ethiopians of Eritrean origin registered for-and later voted in-the referendum on Eritrea's independence was evidence that they had assumed Eritrean citizenship. They cited the language of the Eritrean de facto government's act itself, whereby the province's provisional authorities had limited voting rights to "any person having Eritrean citizenship pursuant to Proclamation No. 21/1992 [the Eritrean Nationality Proclamation]."35 This was not, however, the interpretation given at the time of the referendum by Ethiopian authorities-and indeed the terms of the constitution of 1995 provide a strong new safeguard against denationalization. According to the former referendum commissioner, neither the ERC, nor the Ethiopian government warned potential referendum voters that registration for and taking part in the referendum jeopardized their Ethiopian citizenship.36 Following the referendum and Eritrea's formal independence, the nationality of Ethiopians of Eritrean origin was increasingly challenged by sectors of the public. Ethiopian authorities, however, as late as 1996 reaffirmed that procedures were still required to give those who wished to substitute their Ethiopian citizenship with that of Eritrea the opportunity to do so. Ethiopians were to be given an option-nationality was not, at that juncture, to be assigned peremptorily by the authorities on grounds either of national origin or through a reinterpretation of the terms of the referendum. In August 1996, the Ethiopian and Eritrean government agreed to settle the issue by asking those involved to choose their nationality. The two sides agreed that "On the question of nationality...Eritreans who have so far been enjoying Ethiopian citizenship should be made to choose and abide by their choice."37 It was clear that participation in the referendum alone could not and was not construed as their having done so. However, the implementation of a program to inform citizens of their citizenship rights and options and for them to choose their citizenship was stalled. The two governments decided to postpone implementation until they had resolved an unrelated trade issue: whether or not each country would apply the same trade and investment rules that were applied to the country's own citizens to the nationals of the other country.38 Even as tentative steps were made to sort out the nationality issues in the two states, with due regard for the wishes of the people involved, a vocal minority in Ethiopia was voicing growing mistrust of people of Eritrean origin in Ethiopia. This group complained that people of Eritrean origin in the country controlled important segments of the Ethiopian economy and were working against Ethiopia's interests and on behalf of the Eritrean government. These critics did not deny that these people still had standing as Ethiopian citizens, but opposed this on strictly chauvinistic grounds. They complained that those of Eritrean origin had yet to be obliged to choose between the one or the other country, and they pressed for the Ethiopian government to declare people of Eritrean origin in Ethiopia to be aliens under the law.39 As the tensions grew in 1997, the rhetoric grew increasingly shrill.40
Border Disputes
Following Eritrea's independence, Eritrea and Ethiopia set up a system of local committees for settling local border disputes. The bilateral arbitration committees set up by the two countries to resolve frequent disputes among communities living along the border failed to calm the border issue. A higher-level joint border commission also proved inadequate to contain tensions. The War: The Military Confrontation In May 1998 the simmering border conflict between Eritrea and Ethiopia exploded in a military confrontation in the Badme area when Eritrea sent its army to expel Ethiopian troops stationed there and claimed the area as Eritrean. Weeks of skirmishes followed, and by early June the two former allies were at war. The two countries battled on three fronts over the three disputed areas of Badme, Tsorona-Zalambessa, and Bure. Fighting took place in cycles: short periods of pitched battle alternated with longer periods of relative lull in which only occasional skirmishes took place. The first period of major battle took place from May through June 1998-followed by seven months of relative quiet during which both belligerents rushed to train hastily-assembled recruits and conscripts. During this period both countries also engaged in a flurry of new arms purchases. Eager international weapons suppliers supplied arms and military instruction, in often cases to both countries simultaneously. When the fighting resumed in late February 1999, Ethiopia overran Eritrea's defensive lines and recaptured the Badme area, the original flashpoint of the conflict. The Eritreans then repelled an Ethiopian offensive against the southern border town of Tsorona, in the central front, a battle that cost both armies thousands of casualties. This second cycle of fighting came to an end with the approach of the rainy season in late June 1999. After repeated attempts by the Organization of African Unity (OAU) to negotiate a truce failed, the fighting reignited with even greater intensity in mid-May 2000 when Ethiopia launched an attack that reached deep into Eritrean territory. Eritrea, apparently hoping to secure a quick cease-fire, withdrew its forces from all contested border territories and redeployed them within uncontested Eritrean territory. After another round of OAU-sponsored negotiations in Algiers, Ethiopia and Eritrea signed a "cessation of hostilities" accord on June 18, 2000. Finally, the two parties signed a comprehensive peace agreement on December 12, 2000. With the attention of mediators focused on ending the fighting and demarcating the border, the international community gradually became oblivious to the problem of expulsions, after an early chorus of denunciations. The issue of the status of those expelled from Ethiopia remains to be specifically addressed under the current mechanism and processes of the peace package. The principal issue was that many or most of the Ethiopians of Eritrean origin deported were arbitrarily deprived of their Ethiopian nationality in a retroactive response to the vote on Eritrean independence. An outstanding issue was whether they had been rendered stateless and so were eligible for special international protections. Responsibility for this determination primarily lay with the United Nations High Commissioner for Refugees (UNHCR), the U.N. agency with an express international mandate to address this issue with practical remedies. The status of Ethiopian residents in Eritrea does not appear in dispute. A spokesman for the Ethiopian embassy in Eritrea did not raise this in a May 1999 meeting with Human Rights Watch, noting that the embassy only recognizes carriers of the Ethiopian national identity card as Ethiopian citizens. For their part, Eritrean authorities as a rule did not issue to Ethiopian residents the Eritrean national identity card or passport, nor did they recruit them for employment reserved for nationals.
3 Amharic for committee, the word "derg" refers to the group of radical Marxist officers who ruled with Colonel Mengistu after carrying out a successful coup against Emperor Haile Selassie in 1974. In 1976, two years after gaining power, the Derg launched a two-year campaign against rival Marxist factions, in particular revolutionary students and youth groups. Thousands of urban youth were killed, tortured, and "disappeared" during this period which came to be known as the "Red Terror.
4 Revolutionary students and youth who differed with the Derg fled the Red Terror campaign, and established several insurgent groups in their respective regions, including the precursor of the Tigrean People Liberation Front, which was established in 1975. The Derg carried out a counter-insurgency campaign against the "rebellious" northern provinces of Tigray and Eritrea, targeting civilians through indiscriminate bombings and forcible mass relocations. 5 The emperor promulgated Imperial Order 12/1952 "to provide for the federal incorporation and inclusion of the territory of Eritrea" within the Ethiopian empire. 6 "An order to provide for the termination of the federal status of Eritrea and the application to Eritrea of the system of unitary administration of the Empire of Ethiopia," 22/3 (1962) O. 27, Section 2, Title 5. 7 The Transitional Government of Ethiopia was established by the Transitional Period Charter of Ethiopia on July 22, 1991, art. 6. 8 The Transitional Period Charter of Ethiopia states:
9 In a letter to the U.N. secretary-general dated December 13, 1991, the president of the transitional government of Ethiopia, Meles Zenawi, wrote that "the people of Eritrea have the right to determine their own future by themselves ... the status of Eritrea should be decided by the Eritrean people in a referendum to be conducted in the presence of international observers." Referendum Commission of Eritrea "Referendum `93: the Eritrean people determine their destiny," August 1993, p.13. 10 Provisional Government of Eritrea, "Eritrean Referendum Proclamation," Gazette of Eritrean Laws, vol. 2/1992, no. 4, No. 22/1992," Asmara, April 7, 1992, art. 5(1). 11 Provisional Government of Eritrea, "Eritrean Referendum Proclamation," art. 24. 12 See discussion of Eritrean Nationality Proclamation. 13 The voters "Identification Card" indicated the date and place of issue and the bearer's name, date and place of birth, gender, occupation, and address. The card did not identify the nationality or national origin of the bearer. 14 Provisional Government of Eritrea, "Eritrean Referendum Proclamation," art. 24. 15 Ibid, art. 27(2)(d). 16 Human Rights Watch interview, Amare Tekle, former RCE commissioner, Asmara, May 12, 1999. 17 Referendum Commission of Eritrea, "Referendum `93," Final Polling Results," p. 188. 18 Ibid, p. 198. 19 The long war for Eritrea's independence led to the departure of hundreds of thousands of refugees and migrants from Eritrea-most of whom settled elsewhere in Africa, or in Europe or North America. While 73.5 percent voted from polling locations within Eritrea, 26.5 percent voted from other regions in Ethiopia or abroad. According to the records of the Referendum Commission, 60,129 referendum votes came from regions of Ethiopia other than Eritrea. Another 164,842 people of Eritrean origin voted in Sudan. Finally, a total of 84,370 votes were polled from thirty-nine other countries, including countries in Europe, the Middle East, Africa, and North America. Referendum Commission of Eritrea, "Referendum `93 Final Foreign Polling Results," pp. 63 and 189-191. 20 1,168,978 individuals took part in the referendum and 99.80 percent voted for Eritrean statehood, Ibid. 21 The U.N. certified that "the referendum process in Eritrea can be considered to have been free and fair at every stage." An eighteen-person OAU mission concluded on the basis of its observations that the polling was "free, fair and devoid of significant irregularities." Announcement by the Special Representative of the Secretary-General on the Referendum in Eritrea, April 27, 1991; Referendum Commission of Eritrea, "Referendum `93," pp. 192-93, 200. Negaso Gidada, head of the Ethiopian government's delegation to observe the vote in Eritrea and subsequently Ethiopia's president, declared the polling free and fair and pledged his country's respect and acceptance of its outcome. Ibid, pp.197-199. 22 "Agreement on Security and Related Matters between the ministries of internal affairs of the governments of Ethiopia and Eritrea," signed in Addis Ababa on May 13, 1994 by Kuma Demeska, minister of internal affairs of Ethiopia and Naizghi Keflu, vice minister of internal affairs of Eritrea, art. 2.1. 23 Agreement on Security and Related Matters, art. 2.1. 24 Agreement on Security and Related Matters, art. 2.3. 25 Ibid, art. 1.3. 26 See "Ethio-Eritrean border becoming `meaningless,'" in Press Digest, vol. III, no. 26, June 27, 1996. 27 Ethiopian Nationality Law of 1930 provides that "any person born in Ethiopia or abroad, whose father or mother is Ethiopian, is an Ethiopian subject," art. 1. 28 Ibid, arts. 11 and art. 17 respectively. Similarly, article 18 provides that "An Ethiopian woman having lost her Ethiopian nationality through her marriage with a foreigner may resume it after the dissolution of this marriage by reason of divorce, separation or the death of her husband, if she returns to domicile in Ethiopia and applies to the Ethiopian Government for re-admission to her original Ethiopian nationality." 29 Art. 6-1. 30 Art. 33-1. 31 Art. 2(1). 32 Art. 2(2). 33 Art. 2(4). 34 Distinct procedures are envisaged for those in Eritrea or abroad. Article 2(5) states that; "[a]ny person who is Eritrean by birth, resides abroad and possesses foreign nationality shall apply to the Department of Internal Affairs if he wishes to officially renounce his foreign nationality and acquire Eritrean nationality or wishes, after providing adequate justification, to have his Eritrean nationality accepted while maintaining his foreign nationality." 35 The "Eritrean Referendum Proclamation" defines "Persons Qualified for Registration" for the referendum: "any person having Eritrean citizenship pursuant to Proclamation No. 21/1992 [the Eritrean Nationality Proclamation] on the date of his application for registration and who was of the age of 18 years or older or would attain such age at any time during the registration period, and who further possessed an Identification Card issued by the Department of Internal Affairs, shall be qualified for registration."
36 Human Rights Watch interview with Amare Tekle, Asmara, May 12, 1999. The Eritrean Referendum Commission reported that prior to the referendum it launched a civic and voter education campaign using posters, bulletins, videos, and national radio broadcasts in local languages." That campaign focused on the meaning, purpose, and process of the referendum. See: Referendum Commission of Eritrea, "Referendum `93," Chapter 4: Publicity and Information, pp. 28-35. 37 "Agreed Minutes of the Fourth Ethio-Eritrean Joint High Commission Meeting," August 18-19, 1996, Paragraph 4.3.4 on "Issues on the Free Movement of People and Question of Nationality." The agreement between the two countries was arrived at during the Fourth Ethio-Eritrean Joint High Ministerial Commission, a high-level bilateral meeting which took place from August 18 to 19, 1996, in Addis Ababa. The substance of the meeting was summarized in the minutes, which were signed by both delegations. 38 Ibid. Following a summary of the plan to settle the nationality status of people of Eritrean origin in Ethiopia, the minutes state:
39 The newspaper Tobbia was particularly vocal in criticizing Eritrea and people of Eritrean origin in Ethiopia. On May 9, 1996, Tobbia reported that the foreign minister, Seyoum Mesfin, was playing "a political game of hide and seek" by failing to adequately address the "question of citizenship" as demanded by two deputies of the Council of People's Representatives, including:
40 In November 1997, when relations between Ethiopia and Eritrea were already strained, Tobbia renewed its call for a clarification of the nationality status of Ethiopians of Eritrean origin: "The question of the status of Eritrean citizens residing in Ethiopia is still pending for inexplicable reasons. If it is assumed that the choice of citizenship of Eritreans has been decided on the basis of the referendum, arrangements should be made by the Ethiopian government to enable those who have voted for Eritrean independence to reside in Ethiopia as foreign nationals."
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