This section reviews the international and national laws that provide a framework for analyzing the violations of human rights inherent in the expulsions of Ethiopians and Eritreans from their respective countries. As a threshold matter, potential limitations on specific rights are discussed, including principles of derogation and national security, as well as the overarching norm of non-discrimination in application of human rights conventions. Specific issues are then outlined, including the individual's right to nationality and protection against deprivation of nationality and expulsion; family unity; due process and arbitrary detention; and cruel and inhuman treatment and torture.
Human rights laws bind both the Ethiopian and Eritrean government, and expressly forbid the sorts of abuses that deportees on both sides have suffered. Ethiopia is a state party to the following human rights treaties: the African Charter on Human and Peoples' Rights (hereinafter "the Charter"); the International Covenant on Civil and Political Rights (hereinafter "ICCPR"); the International Covenant on Economic, Social and Cultural Rights (hereinafter "ICESCR"); the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (hereinafter "Convention against Torture"); the International Covenant on the Elimination of All Forms of Racial Discrimination (hereinafter "CERD"); the Convention on the Elimination of All Forms of Discrimination against Women (hereinafter "CEDAW"); the Convention on the Rights of the Child (hereinafter "CRC"). The Ethiopian Constitution of 1995 also contains numerous human rights protections and incorporates into domestic law all human rights provisions contained in international agreements to which Ethiopia is a party.196
According to the Office of the United Nations High Commissioner for Human Rights, Eritrea acceded to the International Covenant on Economic, Social and Cultural Rights on April 17, 2001 and to the International Convention on the Elimination of All Forms of Racial Discrimination on August 1, 2001. Eritrea as an independent nation became a party to the Convention on the Rights of the Child on August 3, 1994, the Convention on the Elimination of All Forms of Discrimination against Women as of September 5, 1995, and the International Covenant on Civil and Political Rights on January 23, 2002. It signed the four Geneva Conventions on August 14, 2000, in the wake of the peace agreement with Ethiopia. Moreover, the Eritrean government repeatedly invoked international human rights and humanitarian law in its protestations against the treatment of Eritreans and people of Eritrean descent at the hand of the Ethiopian government. The Eritrean Constitution contains provisions guaranteeing basic human rights, including the right to life and liberty, but has yet to come fully into force.197
Some international human rights instruments allow states parties to derogate from their obligations to uphold certain rights in times of national emergency. However, the African Charter, to which Ethiopia, but not Eritrea, is a party, does not, even in time of war. The African Commission on Human and Peoples' Rights has emphasized that, "The African Charter, unlike other human rights instruments, does not allow for states parties to derogate from their treaty obligations during emergency situations. Thus even a civil war . . . cannot be used as an excuse by the state violating or permitting violations of rights in the African Charter."198
Although the ICCPR, to which Eritrea is also party, does permit limited derogation from some treaty obligations under defined circumstances, such derogation is impermissible when it is inconsistent with the state party's other obligations under international law.199 As of the end of the war in December 2000, neither Ethiopia nor Eritrea had filed a notice of intent to derogate with the Secretary-General of the United Nations, as required by ICCPR art. 4(3).
The norm against invidious discrimination is a fundamental condition of many international human rights treaties. For example, the ICCPR requires states parties to "respect and ensure" all the rights therein to all individuals within their territory "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."202 The possibility of derogation from the rights of the ICCPR is not permitted if it involves "discrimination solely on the ground of race, colour, sex, language, religion or social origin" or if it is inconsistent with other obligations under international law.203
One such international law obligation of Ethiopia is the Convention on the Elimination of Racial Discrimination (CERD), which prohibits discrimination based on "race, colour, descent, or national or ethnic origin" in regard to fundamental rights, including the right to nationality, the right to return to one's country, security from bodily harm, to equal treatment before all organs administering justice, and to the ownership of property.204 CERD also mandates that each state party "undertakes ... to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation" and "[s]hall prohibit and bring to an end, by all appropriate means . . . racial discrimination by any persons, group or organization."205
Although CERD does not apply to distinctions states make between citizens and non-citizens, or to "legal provisions of States Parties concerning nationality, citizenship or naturalization," this is only "provided that such provisions do not discriminate against any particular nationality."206 To the extent that discriminatory actions were directed against persons because of their imputed Ethiopian or Eritrean origin or nationality, as opposed to just the fact that they were non-nationals, the obligations of this convention were violated.
The prohibition of discrimination on the basis of national origin and the right to equal protection of the law is also reflected in provisions of the ICCPR207 and the African Charter,208 to which Ethiopia is a party, as well as the Universal Declaration of Human Rights.209 The African Charter protects groups, as well as individuals, from discrimination: "All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another."210
In applying these norms, the African Commission on Human and People's Rights, which interprets the African Charter, has interpreted article 6, which prohibits arbitrary arrest and detention through the lens of article 2, which bars discrimination. In a decision concerning detention during the Rwandan genocide, the discriminatory basis of the detentions was seen as evidence that they were arbitrary:
The prohibition against discrimination on the basis of national origin and the right to equal protection of the law is also enshrined in article 25 of the Ethiopian Constitution, which provides:
The right to a nationality is a fundamental human right from which many other civil and political rights flow; this has caused it to be described as "the basic right to have rights."212 Article 15 of the Universal Declaration of Human Rights, to which all member states of the United Nations are deemed to adhere, states that "[e]veryone has the right to a nationality." The Convention on the Rights of the Child guarantees the right of every child to acquire a nationality,213 and requires states to "undertake to respect the right of the child to preserve his or her identity, including nationality."214 Furthermore, "[w]here a child is illegally deprived of some or all elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to speedily reestablishing his or her identity."215 Ethiopian and Eritrean law is consistent with international standards concerning a child's rights to nationality.216
The Universal Declaration of Human Rights further declares at article 15, "No one shall be arbitrarily deprived of his nationality." Although there is no exact counterpart in the ICCPR, this right is implicit in the rights to freely enter and leave one's own country and the right of children to acquire nationality.217 A state act can be deemed "arbitrary" under international human rights law if it lacks a basis in law, flouts requirements of due process and fair procedure, or in other ways trammels other basic human rights norms, such as the norm against invidious discrimination.218 The deprivation of Ethiopian nationality to persons of Eritrean origin can be considered arbitrary on all three counts.
The right to a nationality finds its counterpart in the norm against statelessness, which is embodied in several treaties and evolving legal principles. Any time a government withdraws nationality from an individual or group, there is a prospect that those persons will be rendered stateless. The theoretical availability of an alternate nationality upon application does not negate this prospect.219 Similarly, the imposition of nationality without an individual's consent is generally not recognized as valid in modern international law.220
While neither Ethiopia nor Eritrea are parties to the Convention on the Reduction of Statelessness,221 this treaty and other international instruments are relevant in that they illustrate evolving norms and state practice in this area. This convention provides that a state shall not deprive a person of nationality if such deprivation would render her stateless.222 It also reaffirms, at article 9, that a state may not "deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds." The convention does allow states to denationalize persons under narrow circumstances, including where a person "has taken an oath, or made a formal declaration, of allegiance to another State, or given definite evidence of his determination to repudiate his allegiance to the Contracting State,"223 but as discussed above, the simple act of registering and voting in the referendum on Eritrean independence cannot be construed as any of these acts, not only because of the non-existence of the Eritrean state at the time, but also because the referendum went only to the question of whether there should be an Eritrean state, and not any individual's intended relation to that state.
The specific problem of avoiding statelessness in situations of state succession is the subject of ongoing attention in international law. The Convention on the Reduction of Statelessness, for example, requires contracting states to include provisions in treaties on transfer of territory to ensure that persons will not become stateless as a result.224 The 1997 European Convention on Nationality, which in part responded to the 1990s crises of state succession in Europe, provides progressive guidance for states facing situations state succession.225 This convention reaffirms that everyone has the right to a nationality; that statelessness shall be avoided; and that no one shall be arbitrarily deprived of his or her nationality (article 4). To this end it sets out four guiding principles that states should take into account when granting or retaining nationality in cases of state succession. These include:
a) "the genuine and effective link of the person concerned with the State"226;
The European Convention on Nationality also sets out the principle of non-discrimination (article 5), so that rules on nationality "shall not contain distinctions or include any practice which amount to discrimination on the grounds of sex, religion, race, colour or national or ethnic origin. The convention provides that permanent residents in the successor state should be given the right to remain and should enjoy the same treatment as nationals as regards economic and social rights.
The most recent contribution to the development of legal norms and standards pertaining to nationality, from the International Law Commission (ILC), is the Draft Articles on Nationality of Natural Persons in Relation to the Succession of States (hereafter referred to as the Draft Articles).228 In a March 1999 report to the General Assembly, the commission explained that the draft articles established a series of basic principles, "providing extensive codification of current customary international law reflecting the practice of States, doctrinal opinions and jurisprudence and furnished States with guidelines for standardizing their internal rules and ensuring greater legal certainty."229
The commission's starting point was the basic human right to a nationality, and states' obligations to respect this right. The commission identified several basic principles to be observed by states involved in the state succession - sometimes termed the predecessor and successor states. These included:
· the right of every individual who had the nationality of the predecessor state on the date of the succession of states to the nationality of at least one of the states concerned; and
The draft articles give particular attention to requirements that states promptly enact legislation addressing issues of nationality or citizenship arising in relation with state succession. New laws and implementing procedures are be accompanied by campaigns to ensure that citizens potentially affected by them be informed of their requirements and potential consequences.231
These evolving standards show a singular concern with the will of the individual, and particularly with the need for informed and conscious choice of an alternate nationality before the state moves to strip a resident of its nationality. To that end, they also focus on procedures by which persons are to make these choices or appeal loss of nationality. The International Law Commission's Draft Articles, for example, provide:
Applications relating to the acquisition, retention or renunciation of nationality or to the exercise of the right of option in relation to the succession of States shall be processed without undue delay. Relevant decisions shall be issued in writing and shall be open to effective administrative or judicial review.232
The Draft Principles also emphasize that the determination of nationality cannot be arbitrary. Article 15, on non-discrimination, declares simply that "States concerned shall not deny persons concerned the right to retain or acquire a nationality or the right of option upon the succession of States by discriminating on any ground." Article 16 adds that "Persons concerned shall not be arbitrarily deprived of the nationality of the predecessor State, or arbitrarily denied the right to acquire the nationality of the successor State or any right of option, to which they are entitled in relation to the succession of States." As a further safeguard, of particular relevance to situations of mass expulsions, the principles establish that anyone required to transfer one's residence out of the territory of a state following the voluntary renunciation of that state's nationality be given a reasonable time to do so. These standards reflect similar guarantees in the European Convention on Nationality, chapter IV, whereby states are required to process applications relating to acquisition or loss of nationality within a reasonable time, that such decisions contain reasons in writing, and that there is a right to administrative or judicial review of such decisions.233
Mass expulsion of those the state acknowledges as nationals is aberrant and unlawful; when it takes place, it is often labeled "ethnic cleansing," or a situation of mass persecution. Although the norm against expulsion of nationals is not explicit in the ICCPR, it follows indirectly from the right to enter one's country, as well as the rights to choice of residence and freedom of movement within one's own country. 234 The Ethiopian constitution, article 32, also mandates that "[a]ny Ethiopian national has the right to return to his country." The strength of the norm against mass expulsion is evidenced by the fact that under international humanitarian law, it is a war crime or crime against humanity for an occupying power to deport civilians from a territory it occupies, except for their own protection or imperative military reasons.235
Mass expulsion of non-nationals is also prohibited by international and Ethiopian law. Article 12(5) of the African Charter states explicitly that "the mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups." Non-nationals are also protected from being expelled except "in pursuance of a decision reached in accordance with law" under article 13 of the ICCPR.236 The U.N. Human Rights Committee, which is charged with authoritative interpretation of the ICCPR and review of reports of states parties thereunder, has stated that arbitrary expulsion would violate this requirement, again with the understanding that mass or discriminatory expulsions are inherently unlawful, or arbitrary:
Under Ethiopian law, the Ethiopian Penal Code of 1957 protects both non-nationals and nationals from being subject to mass expulsion in either time of war or peace.238
International law recognizes that "[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State."239 The African Commission on Human and Peoples' Rights has recognized that a state violates its obligations to protect families when state expulsion of certain family members causes spouses or parents to be separated from their children.240 In situations of state succession, the International Law Commission's Draft Principles (article 12), establishes the obligation to adopt all reasonable measures to enable a family to remain together or to be reunited.
The Convention on the Rights of the Child also requires states to "ensure that a child shall not be separated from his or her parents against his will,"241 and mandates that "[w]here such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation, or death . . . of one or both parents or of the child," the state must provide information about the whereabouts of the absent member242 and must treat applications to leave or enter the country for purposes of family reunification "in a positive, humane and expeditious manner."243
The Ethiopian Constitution states that the family is the natural and fundamental unit of society and is entitled to protection by society and the State244 and that "every child has the right . . . to know and be cared for by his or her parents or legal guardians."245 Similarly, the Eritrean Constitution's article 3.1 recognizes the family as "the natural and fundamental unit of society," and that it is "entitled to protection and special care of the State and society."
International law and the domestic law of Ethiopia and Eritrea protect individuals from arbitrary arrest and detention, and other violations of due process of law. The ICCPR, for example, mandates that:
Similar due process protections are contained in the African Charter and Universal Declaration.247 The African Commission on Human and Peoples' Rights has further expressly recognized that detention solely on the basis of ethnic origin constitutes a violation of these protections.248
The Ethiopian Constitution contains similar due process protections. Article 17 of the Ethiopian Constitution provides that "no person may be subject to arbitrary arrest and no person may be detained without trial or conviction." Under article 19, "all persons arrested have the right to be informed promptly . . . the particulars of the charges and the reasons for their arrest"249 and arrested persons have the right to "appear before a court of law and to be given a full explanation of the reasons for their arrest within forty-eight hours of their arrest."250 The Constitution also bars punishment of an act that was legal at the time it was committed.251
Article 17 of the Eritrean Constitution stipulates in Sub-Article 17(1) "no person may be arrested or detained save pursuant to due process of law." The Eritrean constitution also provides extensive protection for due process of law during arrest or detention, including the right to be brought before the court within forty-eight hours of arrest, the right to habeas corpus, the right to a fair and public trial, the presumption of innocence, and the right to appeal upon conviction.
Under international law, states must treat detainees humanely: torture and other cruel, inhuman or degrading treatment or punishment are forbidden. The prohibition of torture is a jus cogens norm of customary international law, binding on all nations. The Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment defines torture as any act on the part of a public official or by another with the instigation, acquiescence or consent of an official, "by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as . . . punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind."252 States must "undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment."253 The norm against torture and cruel, inhuman or degrading treatment is also found in the ICCPR,254 the African Charter,255 and the Universal Declaration,256 as well as in the Ethiopian and Eritrean constitutions.257
Apart from the prohibition of torture, there exists a positive obligation towards humane treatment of prisoners, as in article 10 of the ICCPR, requiring that "all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person." The African Commission on Human and Peoples' Rights has found that conditions of detention characterized by "overcrowding and acts of beating and torture . . . [and] extremely poor quality food and denial of access to medical care" violate the African Charter.258
Human Rights Violations in Ethiopia's Deportation Campaign
In contravention of international and Ethiopian law, the Ethiopian government failed to provide due process of the law to the deportees at any stage. Ethiopian authorities conducted the arrests, detention, and expulsions in a manner that violated Ethiopia's commitments under international law and its own constitution. Ethiopian authorities did not produce judicial warrants at the time of arrest. For the majority of the expellees, no reasons were given for their arrests other than that the concerned person was "Eritrean," had voted in the referendum regarding Eritrea's independence, or was a member of an Eritrean community organization. Not only did the Ethiopian government select individuals for detention and expulsion based solely on their supposed Eritrean origin, but it denied the targeted individuals the opportunity to challenge their classification and resulting treatment.
The victims of the expulsion campaign had no meaningful opportunity to protect their interests through legal channels-or any form of an administrative review. The Ethiopian courts have not been a viable avenue259 for deportees or their representatives to challenge their arrest, detention, and forcible expulsion; to defend their claims to Ethiopian nationality; to refute the allegation of being a threat to national security; or to seek compensation for deprivations of their property.260
Torture, Cruel, Inhuman and Degrading Treatment or Punishment
Some of Ethiopia's deportees were tortured or ill-treated in police lock-ups and detention camps prior to expulsion.261 The majority of reported incidents involved severe beatings by Ethiopian police and military. Ethiopia's government was also responsible for other cruel, inhuman, and degrading treatment of the deportees by police, military, and by members of the local and national government and cadres of the ruling party. 262
Separation of Families
Ethiopia's expulsion campaign has also led to widespread and continuing violations of international and domestic laws which protect the unity of the family.263 The expulsions carried out by the Ethiopian government forcibly separated many families. Frequently, men of Eritrean origin were expelled without their wives and children, leading to months or years of family separation. Families in which some members were deemed to be of Eritrean origin while others were considered Ethiopian were particularly hard hit. The government's expulsion of the "Eritrean" family members was declared to be permanent and the war made it impossible for the "Ethiopian" family members to travel to Eritrea to join their expelled kin.264
Despite its promises to the contrary, the Ethiopian government did not protect the property rights of the deportees. Indeed, the Ethiopian government's effort to have deportees designate powers of attorney while they were in custody demonstrated a profound indifference to the rule of law.
Ethiopia's expropriation of property belonging to the deportees without providing adequate notice, an opportunity to challenge the expropriation, or compensation also violated Ethiopia's obligations to provide due process and equal protection of the law to all.265 Deportees are not known to have received compensation for their property losses as required by law.
Deportations and Ethiopian Nationality
Ethiopian citizens of Eritrean origin who were habitual residents of Ethiopia before and during the war with Eritrea, and who did not formally take up Eritrean citizenship after that state's independence, remained Ethiopian citizens after war broke out. The participation of some of these individuals in the referendum on Eritrea's independence required evidence of eligibility for Eritrean nationality in a future state-but was not then construed by Ethiopian authorities (or by participants) as a renunciation of Ethiopian nationality. It was not defined in these terms in Ethiopian law or regulations, and Ethiopian authorities did not announce procedures requiring citizens to re-certify or renounce their Ethiopian nationality. Nor could registration to vote in the referendum in itself constitute acquisition of Eritrean citizenship-as an independent Eritrea did not then exist. The failure to address the nationality issue was acknowledged in the 1996 agreement between Eritrea and Ethiopia: this recognized a need to provide an option for Ethiopian citizens of Eritrean origin to formally take up Eritrean nationality if that was their choice. The Ethiopian government's expulsion of close to 75,000 people of Eritrean origin as a consequence constituted a violation of international and Ethiopian law prohibitions against mass expulsions of nationals.
Under customary international law, deportations or mass forcible transfers are a crime against humanity when these individuals were Ethiopia's mass expulsion of thousands of its citizens appears to have fit these criteria. The latter presumption is supported by the systematic efforts to confiscate all Ethiopian documents by which deportees could subsequently contest claims they were not nationals. This was further substantiated by statements by top officials prior to the deportations referring to Eritrean Ethiopians collectively as potentially disloyal "citizens."266 Furthermore, in contravention of is obligations under the African Charter and the ICCPR, Ethiopia subjected the deportees to arbitrary exile and denied them their right to return to their country.267 Ethiopia's actions are also contrary to the Ethiopian Constitution which declares that "[a]ny Ethiopian national has the right to return to his country."268
Notwithstanding Ethiopia's contention that the deportees were not Ethiopian citizens, their expulsion as members of a group defined expressly by national origin was in itself clearly illegal. As a state party to the African Charter, Ethiopia is bound by article 12(5), which declares that "the mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups." Ethiopia is also prohibited from carrying-out mass expulsions under the ICCPR269 and under its own penal law.270
Ethiopians expelled from Eritrea told of harsh detention conditions and degrading treatment at the hands of Eritrean guards. Some returned Ethiopians reported being tortured or raped, and others expressed fears for relatives who remained behind in the interment sites, mostly young men of military age.271
The reported arbitrary detention, beatings, and deportations violated Eritrea's constitutional guarantees and other national laws protecting basic human rights. Eritrea is a state party to the African Charter on Human and Peoples' Rights, which it ratified in June 1999, and to the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child. As a successor state to Ethiopia, it was also bound to observe the ICCPR and other international instruments to which Ethiopia was party, as well as the Geneva Conventions, even before the government of independent Eritrea acceded to the conventions in July 2000. The Eritrean government repeatedly invoked international human rights and humanitarian law in its protestations against the treatment of Eritreans and people of Eritrean descent at the hand of the Ethiopian government.
Due Process Guarantees
The Eritrean Constitution contains provisions guaranteeing basic human rights, including the right to life and liberty in its article 15 that provides "no person shall be deprived of liberty without due process of law." Article 17 of the constitution stipulates in sub-article 17(1) that "no person may be arrested or detained save pursuant to due process of law." It also provides extensive guarantees of due process of law during arrest or detention, including the right to be brought before the court within forty-eight hours of arrest and the right to habeas corpus. In practice, there was no access to judicial review of the legality of arrests and internment as enemy aliens in the course of the war, nor consideration by a court of appeals against deportation. The Eritrean Constitution guarantees the right to human dignity. Article 16 states that "the dignity of all persons shall be inviolable," and that "no person shall be subject to torture or to cruel, inhuman or degrading treatment or punishment."
Article 23 of the Eritrean Constitution provides for citizens' right to property, stating that "any citizen shall have the right any-where in Eritrea, to acquire and dispose of property individually or in association with others and to bequeath to his heirs or legatees." Guarantees are less clear in cases of non-citizens, although due process guarantees should apply to all. Some Ethiopians evicted from Assab in the immediate aftermath of the war complained about the confiscation of their property, namely stored merchandise. Maids and restaurant workers who said they were dismissed from their work in Asmara following the Ethiopian air raid on its airport in June 1998 also complained that their employers refused to pay back the savings that the workers had entrusted with them for safekeeping. These and similar claims must be investigated.
196 The Constitution of the Federal Democratic Republic of Ethiopia, art. 9(4), December 8, 1994 (unofficial English translation of Amharic original published in Addis Ababa, 1995, also available online at the Parliament of Ethiopia Web Site at: http://www.ethiopar.net/English/cnstiotn/consttn.htm ).
197 In its article 15, "no person shall be deprived of liberty without due process of law." (online at http://unpan1.un.org/intradoc/groups/public/documents/cafrad/unpan004654.pdf.
198 African Commission decision regarding Communication 74/92, "Commission Nationale des Droits de l'Homme et de Libertés/Chad," par. 21. (online at http://wwwserver.law.wits.ac.za/humanrts/africa/comcases/74-92.html.)
199 Article 4 of the ICCPR provides:
200 These basic rights are set out the Ethiopian Constitution of 1994, articles 18, 21, 25, and 93. Article 25 provides: "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall guarantee to all persons equal and effective protection without discrimination on grounds of race, nation, nationality, or other social origin, color, sex, language, religion, political or other opinion, property, birth or other status."
201 The complete text of the Eritrean Constitution is available online at: http://unpan1.un.org/ intradoc/groups/public/documents/cafrad/unpan004654.pdf.
202 202 ICCPR art. 2(1)
203 203 ICCPR art. 4(1)
204 204 CERD arts.1 and 5.
205 Ibid, art. 2(1)(a) and (d).
206 206 CERD, art. 1(2) and (3).
207 Article 26 of the ICCPR states:
208 Article 2 of the African Charter on Human and Peoples' Rights. (African Charter, online at http://www1.umn.edu/humanrts/instree/z1afehar.htm.)states:
209 Article 2 of the Universal Declaration on Human Rights provides that "everyone is entitled to all the rights and freedoms set forth in [this] Declaration, without distinction of any kind, such as . . . national or social origin." Article 7 of the Declaration also provides that "all are equal before the law and are entitled without any discrimination to equal protection of the law."
210 African Charter, art. 19
211 Organisation Mondiale Contre La Torture vs. Rwanda, African Commission on Human and Peoples' Rights, Comm. No. 27/89, 46/91, 49/91, 99/93 (not dated). (online at http://wwwserver.law.wits.ac.za/humanrts/africa/comcases/27-89_47-91_49-91_99-93.htm.)
212 U.S. Supreme Court Chief Justice Warren. See Trop v. Dulles, 356, U.S. 86, 102 (1958).
213 The Convention on the Rights of the Child (CRC), art. 7(1).
214 Ibid, art. 8(1).
215 Ibid, art. 8(2).
216 The Ethiopian Constitution recognizes that "every child has the right to . . . a name and nationality," art. 36(b). Article 3-1 of the Eritrean Constitution provides "any person born of an Eritrean father or mother is an Eritrean by birth."
217 ICCPR, arts.12(2) and (4) and 24(3).
218 See Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary, pp. 172. In the case of the right to enter one's own country, ICCPR 12(4), the injunction that no one shall be "arbitrarily" deprived of this right is interpreted as excepting only cases of lawful exile as punishment for a crime, a practice that was rare even at the time of the drafting of the Covenant. Ibid at 218-219.
219 See, e.g. Convention on the Reduction of Statelessness, 989 U.N.T.S. 175, entered into force Dec. 13, 1975, art. 7(1) and 7(2), which provide that renunciation of nationality, or application for naturalization in a foreign country, may not be grounds for denationalization unless the person concerned possesses, acquires, or has been accorded assurance of acquiring the nationality of that foreign country.
220 See Ruth Donner, The Regulation of Nationality in International Law, sec. 3.1 "Imposition of Nationality," pp.160-165 and Restatement of the Law Third, The Foreign Relations Law of the United States, sec. 211, comment d at p. 116 and note 2 at p. 117-118, (American Law Institute, Washington, D.C.: 1986).
221 Twenty-four states are parties to this convention.
222 Convention on the Reduction of Statelessness, art. 8, 989 U.N.T.S. 175, entered into force Dec. 13, 1975.
223 Ibid, art. 8(3)(b).
224 Ibid, art. 10.
225 European Convention on Nationality (1997), Chapter VI, Articles 18-20.
226 The concept of a "genuine and effective link" derives from the Nottebohm Case, where the International Court of Justice stated that in determining the question of the validity of an individual's nationality, the court would show "preference to the real and effective nationality, that which accords with the facts, that based on stronger factual ties between the person concerned and one of these States whose nationality is involved." The criteria for determining a "genuine and effective link" included the "habitual residence of the individual concerned," the "center of interests," "his family ties," "his participation in family life," and "the attachment shown by him for a given country and inculcated in his children, etc." Nottebohm Case, I.C.J. Reports, 1955.
227 Ibid, Article 18 (2).
228 International Law Commission, Draft Articles on Nationality of Natural Persons in Relation to the Succession of States, submitted to the General Assembly in 1999; the General Assembly, in Res. 54/111 of December 9, 1999 expressed its appreciation of the draft and noted that the Commission had completed its work on the topic "Nationality in relation to the succession of States." The commission recommended to the General Assembly the adoption of the draft articles in the form of a declaration. The draft articles are available online at http://www.un.org/law/ilc/guide/3_4.htm (retrieved February 4, 2001). See also United Nations, General Assembly, A/CN.4/497, Match 8, 1999, International Law Commission, Nationality in relation to the succession of States, Memorandum by the Secretariat, para. 9 (1999). Online at http://www.un.org/law/ilc/sessions/51/english/497.pdf (retrieved February 20, 2002).
229 United Nations, General Assembly, A/CN.4/497, March 8, 1999, International Law Commission, Nationality in relation to the succession of States, Memorandum by the Secretariat, para. 9 (1999). Available online at http:// www.un.org/law/ilc/sessions/51/english/497.pdf (retrieved February 20, 2002).
230 International Law Commission, Draft Articles on Nationality of Natural Persons in Relation to the Succession of States, arts. 1 and 11.
231 Ibid, art. 6, Legislation on nationality and other connected issues. "Each State concerned should, without undue delay, enact legislation on nationality and other connected issues arising in relation to the succession of States consistent with the provisions of the present draft articles. It should take all appropriate measures to ensure that persons concerned will be apprised, within a reasonable time period, of the effect of its legislation on their nationality, of any choices they may have thereunder, as well as of the consequences that the exercise of such choices will have on their status."
232 Ibid, art. 17.
233 European Convention on Nationality, arts. 10, 11 and 12.
234 See Nowak, surpa, pp. 218-219, ICCPR art.12, and African Charter, art. 12.
235 Article 49, Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, August 12, 1949.
236 Article 13 of the ICCPR provides that: "An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority."
237 U.N. Human Rights Committee, General Comment 15/27 of 22 July 1986 (Position of Aliens), para. 10.
238 Article 281 of the Penal Code states: "Whosoever, with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group, organizes, orders or engages in, be it in time of war or in time of peace... (c) the compulsory movement or dispersion of peoples or children...is punishable with rigorous imprisonment from five years to life, or in cases of exceptional gravity, with death." Article 282 of the Penal Code states: "Whosoever, in time of war, armed conflict of occupation, organizes, orders or engages in, against civilian population and in violation of the rules of public international law and of international humanitarian conventions: (c) the compulsory movement or dispersion of the population, its systematic deportation, transfer or detention...or (e) denationalization..." Penal Code of 1957, Article 281 and 282 reproduced online at http://www.preventgenocide.org/law/domestic/ethiopia.htm.
239 Universal Declaration of Human Rights, art. 16(3) and ICCPR, art. 23(1). See also, African Charter, art. 18 ("The family shall be the natural unit and basis of society. It shall be protected by the state which shall take care of its physical and moral health."); Fourth Geneva Convention, art. 24 ("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.")
240 Union Inter Africaine des Droits de l'Homme, Commission Decision regarding Communication 159/96, para. 16 (finding that "by deporting the victims, thus separating some of them form their families, the Defendant State has violated and violates the letter of" Article 18 of the African Charter.).
241 CRC, art. 9(1).
242 Ibid, art. 9(4).
243 Ibid, art. 10(1).
244 Ethiopian Constitution, art. 34(3).
245 Ibid, art. 36.
246 ICCPR, art. 9.
247 See, the African Charter, arts.6-7; the Universal Declaration, arts. 9-11.
248 Commission Decision regarding Communication 21/89, Organisation Mondiale Contre la Torture, par. 28 ("The arrests and detentions of the Rwandan Government based on grounds of ethnic origin alone, in light of Article 2 in particular [which prohibits discrimination on any grounds] constitute arbitrary deprivation of the liberty of an individual. These acts are clear evidence of a violation of Article 6.")
249 Ethiopian Constitution, art.19(1).
250 Ibid, art. 19(3).
251 Ibid, art. 22.
252 Convention against Torture, art. 1.
253 Ibid, art. 16.
254 Article 7 of the ICCPR mandates that "[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." This provision may not be derogated during public emergency, art. 4(2).
255 Article 5 of African Charter states that "[e]very individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly. . . cruel, inhuman or degrading punishment and treatment shall be prohibited."
256 Article 5 of the Universal Declaration provides that "[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."
257 The Ethiopian Constitution's article 18 expressly protects the right of all individuals "to protection against cruel, inhuman and degrading treatment or punishment." Article 93 forbids derogation of this right during a state of emergency. The Eritrean Constitution's article 16 states that "the dignity of all persons shall be inviolable," and that "no person shall be subject to torture or to cruel, inhuman or degrading treatment or punishment."
258 Commission Decision regarding Communication 68/92, Chirwa v. Malawi, para. 8.
259 The majority of expellees were taken into custody and expelled by Ethiopian authorities without ever coming into contact with the judicial system or having an opportunity to seek legal representation. Bringing a judicial challenge was not feasible for those who had been expelled because of lack of channels of communication with Eritrea as well as because of deep rooted problems in the Ethiopian judiciary, including the failure of other branches of government to respect its independence, the failure of police to routinely obey court orders, and the harassment and detention of some judges by political and executive officials.
260 For instance, according to Article 11(2) (b) of Proclamation No. 25/1996, it is within the sole jurisdiction of the Federal High Court to hear cases relating to citizenship. An institution dismissing an Eritrean should in principle have had the burden of proving that the individual was indeed Eritrean. However, it would appear that no employer or government institution had done that, although neither enjoys the power of determining nationality. See, Yonas Fesseha "What if Eritrean identity is denied?" Reporter, July 1998.
261 See e.g., Torture Convention at art. 1, 2, 4, 12-14; ICCPR at art. 4(2), 7; African Charter at art 5; Universal Declaration at art. 5.
262 See e.g., Torture Convention at art. 16; ICCPR at art. 4(2), 7; African Charter at art 5; Universal Declaration at art. 5; Ethiopian Constitution at art. 18, 93.
263 See e.g., ICCPR at art. 23(1); African Charter at art. 18; Union Inter Africaine des Droits de l'Homme, African Commission Decision regarding Communication 159/96, para. 16; Fourth Geneva Convention, art. 24; CRC, arts. 9(1) and (4) and 10(1); Ethiopian Constitution, arts. 34(3) and 36.
264 After the war began in 1998, telephone, mail, and other modes of communication and travel between Ethiopia and Eritrea were cut. This meant that expellees from Ethiopia who are in Eritrea have been unable to communicate directly with family in Ethiopia since then. For most expellees, their only means of communication with those still in Ethiopia has been indirectly via relatives, if any, in third countries.
265 Article 40(1) of the Ethiopian Constitution provides: "Every Ethiopian citizen has the right to ownership of private property. This right shall include the right to acquire, to use and to dispose of such property by means of sale or bequest or by other means of transfer subject to limitations prescribed by law in the public interest and in a manner compatible with the rights of other citizens."
266 For articulation of the customary international law prohibition against expelling nationals see, Nuremberg Charter, at Art. 6, Fourth Geneva Convention, at Art. 49; Control Council Law No.10, at Art II; Statute of the International Criminal Tribunal for the Former Yugoslavia, at Art. 5; Statute of the International Criminal Tribunal for Rwanda, at Art.3; Rome Statute for the International Criminal Court, at Art. 7.1(d)); American Convention, at Art. 22(5); European Convention, Protocol IV, at Art. 3.
267 Article 12(2) of the African Charter provides that "[e]very individual shall have the right . . . to return to his country;_and Article 12(4) of the ICCPR provides that "[n]o one shall be arbitrarily deprived of the right to enter his own country."
268 Ethiopian Constitution, at Art. 32.
269 Article 13 of the ICCPR provides that:
270 The Ethiopian Penal Code of 1957 bars "expulsion or forcible transfer of a population." Articles 281-288, 291 and 292 prohibit crimes against humanity. See Human Rights Watch/Africa, "Curtailment of Rights."
271 Nita Bhalla, "Ethiopian refugees' atrocity tales," BBC Focus on Africa, July 7, 2000.