Ethiopia’s claim to Badme had been Rejected Unambiguously
Ghidewon Abay Asmerom
March 13, 2003

"He insisted that the town of Badme, which was the key prize in the war must remain Ethiopian. ‘I would find it absolutely difficult to believe that any person in his right mind would put Badme in Eritrea.’ " – BBC on 12 March, 2003.

This is the latest Ethiopian wail that it should get Badme. This time it is Tekeda Alemu speaking. Two weeks ago it was the Prime Minister who told the same news agency that he found “it difficult to see how the border town of Badme could be awarded to Eritrea.” Tekeda's statement is particularly absurd. He is alleging the Commissioners who found Badme to be in Eritrea are out of their "right mind". Well does that include the two Ethiopia handpicked? What about the President of the Commission, which Ethiopia's nominees had an equal say in selecting? The logic must go that the Minority Regime in Ethiopia is not in its right mind to select people that are out of their right mind. It's not nice to badmouth people you have put in the commission yourself.

These statements together with the Reports of the President of the neutral Boundary Commission and the UN Secretary General of March 6, 2003 make it clear that the Tigrean rulers of Ethiopia are ready to go to yet another war to get land that is not legally theirs.

Which Line is "This Line" ?

These statements by Ethiopian officials also make it clear that the “line” in the Ethiopian statement “Ethiopia has understood that this line would be subject to refinement during the demarcation process when the effective administration of the Parties could be determined in the field, ” quoted by Sir Elihu Lauterpacht is his 8th report to the UN is a reference to the famous diagonal line that runs between the Setit-and Mareb Rivers. This is also the line that runs through the heartland of a fertile land that became a source of war in 1998. The April 13 Decision had said that this diagonal line had long crystallized as an international border and “was binding on the Parties” more than seven decades ago. But what is at stake is not the Straight-line border, but which side of the border the straight line leaves the village of Badme.

What Ethiopia’s officials repeatedly telling the World is an admission that Badme is not on their side of the border. It would be hard to imagine they would be demanding for the “refinement” of the line come demarcation if the now famous village were on their side of the border. But anyone who has read the Decision carefully knows that the Commission has long rejected Ethiopia’s claim to Badme the village and the areas adjacent to it. This rejection is not hidden. It is out there in the Decision for anyone who cares to read. It is so easy to find that it doesn't even require a "magic eye" stare like the stereogram text below in Figure 1. If you can't see the hidden text below, don't spend your time staring at it. Finish reading and you will find what is in it.

Figure 1 -- Ruling over Badme

We know the Apartheid Regime in Ethiopia had lied to the people of Ethiopia the morning of the Decision. All these "it is difficult to believe" statements are now their way of admitting they have lied to their people and to the world. Many in the past had already pointed the key paragraphs that make it clear that Badme was not and is not legally part of Ethiopia, here is again a brief summary of what the Commission had to say vis-à-vis this point in those paragraphs.

A Claim Line that Folded Under all Legal Tests

Though Ethiopia, through its claim line in the western sector, had claimed an area covering about a third of Eritrea’s Gash-Setit province, it had nothing to show for it in terms of evidence. Exploiting the early confusion between the Amharic and Italian/English texts of the treaty on a key river (the Amharic had Mai Teni and the Italian/English texts had Maieteb) Ethiopia argued that the 1902 treaty river was the tiny creek of Mai Teb about 20 km east of Um Hajer instead of the River Mai Teni (Bia Tenne) which is some 120 km farther east of the Mai Teb. The Map below is the April 13 border with Ethiopia's claim line (in pink) superimposed.

Figure 2 -- Eritrea-Ethiopia Border as Affirmed by the April 13 Decision vs. what Ethiopia had Claimed
(pink line)

Figure 2 -- Eritrea-Ethiopia Border as Affirmed by the April 13 Decision vs. what Ethiopia had Claimed (pink line)

Producing a couple of wrong maps drawn by Italy and one of its own Ethiopia maintained that (1) there were no clear enough maps of the border around 1902-03, and (2) the Italians themselves were confused as to where the border between Eritrea and Ethiopia was. As a result it argued that the intention of the treaty of 1902 was not to put the border as far as Eritrea wants it to be or as it was being drawn in the past 100 years including those drawn by itself. Of course there were two more problems in the text of the 1902 Treaty Ethiopia didn’t know how to square with its claim line. The main problem for Ethiopia was how to reconcile the 1902 treaty’s specific requirement that the border “shall be delimited by Italian and Ethiopian delegates, so that the Cunama tribe belong to Eritrea.” Ethiopia’s claim line falls far short of doing that. Ethiopia’s contention, albeit weak, was (1) “The land of the Kunama could only stretch as far east as the Italians thought it did in 1902,” and (2) “The incorporation of the Kunama into Eritrea was not the central objective and purpose of the 1902 treaty.” Eritrea’s argument was clear. The intended river of the Treaty is as the Amharic text had it: the River “Mai Teni” or as the indigenous people call it "Bia Tenne". This river is near the eastern border of the Kunama and it is to this same River that the Ethiopian Minister of Foreign Affairs, Bilaten Getta Hiruy W/Silassie, was referring in his diplomatic exchange with the Italians as late as 2 May 1931.

"that Eritrean soldiers had crossed 'through Adiabo and killed Ethiopian citizens at Mai Tani' and asked that Eritrean soldiers 'be forbidden in the future from crossing the frontier and repeating similar acts.' "[EEBC Decision § 5.74]

At the same time the particular purpose and central objective of the 1902 Treaty was not a river, a mountain but to demarcate the border so as to ensure that all Kunama remain in Eritrea.

The Commission sifted through Eritrea’s and Ethiopia’s evidence and after examining the pertinent colonial treaty of 1902 and applicable international law, it ruled unequivocally in favor of Eritrea.

Figure 3--The "Classical Line" as it was in 1910
Check the Treaty River, the Mai Tani, (directly below the word "ADI ABO").
It is joining the Setit to the south east of where the classical line meets the Setit.

Rejecting Ethiopia’s claim line, the Commission agreed with Eritrea that the “classical” or “traditional” straight line from the confluence of the Tomsa with the Setit to the confluence of the Mai Ambessa with the Mareb (Point 6 to Point 9 in the Decision maps) is the colonial treaty border. This is how the Commission put it:

1. “The Commission is satisfied that the negotiators did not have in mind as the boundary the Ethiopian claim line running from Point 3 to Point 9.” [EEBC Decision § 5.84]

2. “[T] he Commission determines that the eastern border of Cunama territory between the Setit and the Mareb coincides with the classical signature of the border as marked on the maps. There is no evidence sufficiently clear or cogent to lead the Commission to a different conclusion.” [ EEBC Decision § 5.89]

3. “In short, the Commission concludes that as at 1935 the boundary between the Setit and the Mareb had crystallized and was binding on the Parties along the line from Point 6 to Point 9.” [EEBC Decision § 5.90]

What the Commission is saying above is that: the 1902 treaty does not read as Ethiopia wants it to read. At the same time those who negotiated the treaty didn’t have in mind Ethiopia’s claim line as a border. Furthermore, the eastern border of the Kunama is near Eritrea’s claim line not Ethiopia’s claim line. If the Commission was to take Ethiopia's claim line the Kunama would not remain in Eritrea. Finally the Eritrean claim line was accepted as a border by both Italy and Ethiopia before the two countries went to war in 1935. Thus, the border remains with its classical (straight-line) signature where Eritrea claims it is. This is an unambiguous rejection to Ethiopia’s claim to where the border was and should be.

Said in different words, Ethiopia’s claim line, the line from Point 3 to Point 9, had failed all the critical tests the Commission put it to. As we saw above it failed the treaty interpretation test. Ethiopia's "Mai Teb" is not the same as the Treaty's Mai Teni, at the same time Ethiopia's claim line violates the key provision of delimiting the border "so that the Cunama tribe belong to Eritrea." Ethiopia's claim line also failed three more tests that came under the Commission’s interpretation of “applicable international law.” These are tests that relate to “the rules relating to the effect of conduct of the parties.” According to the Commission "the conduct of the Parties falls into three broad categories:

i) "Maps;

ii) “Activity on the ground tending to show the exercise of sovereign authority by the Party engaging in that activity (effectivités)”; and

iii) “A range of diplomatic and other similar exchanges and records, including admissions before the Commission, constituting assertions of sovereignty, or acquiescence in or opposition to such assertions, by the other Party.” [EEBC Decision § 3.16]

This means not only did Ethiopia’s claim fail the treaty interpretation test, but it also failed in all the three categories specified above. Here is how the Commission summarizes the failure of Ethiopia’s claim line to square with the evidence that exists in the thousands of maps and how Ethiopia never protested for decades the drawing of the border along that of Eritrea’s claim line:

The Commission has taken into account the many maps presented to it in evidence, but has only given weight in relation to this sector to maps produced by the Parties themselves in the period prior to 1935. It has noted that three early Italian maps show the Ethiopian claim line, as does one Ethiopian map of 1923. However, all the other relevant maps show the Eritrean claim line in accordance with what has, in the present proceedings, come to be called the “classical” or “traditional” signature characterized by a straight line from the confluence of the Tomsa with the Setit (Point 6) to Point 9 at an angle of about 28º from true north. There is no record of any timely Ethiopian objection to these maps and there is, moreover, a consistent record of Ethiopian maps showing the same boundary. These maps amount to subsequent conduct or practice of the Parties evidencing their mutual acceptance of a boundary corresponding to the Eritrean claim line.” [EEBC Decision § 5.88]

The Commission also found Ethiopia’s evidence of “activity on the ground tending to show the exercise of sovereign authority by the Party engaging in that activity (effectivités)” vis-à-vis Ethiopia’s claim line not to be sufficiently clear or substantial in scope and time as to make it displace, vary, or “refine” Eritrea’s claim line. In the Commission’s words:

1. “The Commission has examined the major elements in the course of events since 1935: the Italian invasion of Ethiopia; the outbreak of the Second World War; the British military occupation of Eritrea; the post-war developments including the treatment of the political future of Eritrea; the creation of the federation between Ethiopia and Eritrea; and the eventual termination of that federation. However, the Commission can perceive nothing in that chain of developments that has had the effect of altering the boundary between the Parties. The boundary of 1935 remains the boundary of today.” [EEBC Decision § 5.91]

2. “There is one specific body of material to which the Commission has given careful consideration, namely, the Ethiopian evidence of its activities in the area west of Eritrea’s claim line. The Commission notes that no evidence of such activities was introduced in the Ethiopian Memorial. The evidence to be examined appeared only in the Ethiopian Counter-Memorial. It was not added to or developed in the Ethiopian Reply." [EEBC Decision § 5.92]

3. “There is some evidence of policing activities in the Badme Wereda in 1972-1973 and of the evaluation of an elementary school at Badme town. There are, in addition, a few items dating from 1991 and 1994.” [EEBC Decision § 5.94]

4. “These references represent the bulk of the items adduced by Ethiopia in support of its claim to have exercised administrative authority west of the Eritrean claim line. The Commission does not find in them evidence of administration of the area sufficiently clear in location, substantial in scope or extensive in time to displace the title of Eritrea that had crystallized as of 1935.” [EEBC Decision § 5.95]

In short, the Commission by rejecting Ethiopia’s bogus claim line on one hand and affirming Eritrea’s claim line on the other, had rejected Ethiopia’s claim to all areas west of the classical Tomsa-Mai Ambessa line. This includes but is not limited to Ethiopian claim to villages of Adi Teklai, Adi Tseser, Badme, Dembe Mengul, Dichinama, Mochiti, Sembel, Shelalo, and Sheshebit...etc.

Thus it is in spite of the clarity of the Commission’s ruling outlined above that the Tigrean Rulers of Ethiopia are now saying they find “it difficult to see how the border town of Badme could be awarded to Eritrea,” or “absolutely difficult to believe that any person in his right mind would put Badme in Eritrea.” It is not the right or not so right mind of the Commissioners that left Badme in Eritrea. It is the facts in the treaty and applicable international law that did it. If it was only a matter of finding it difficult to understand, we are certain the Commission could have helped Ethiopia understand the April 13 Decision. However, what is proving difficult is the fact that the Minority Regime in Ethiopia is telling the Boundary Commission you have “decided that Badme would go to the country that administered the area at the time of the war” and that means "you have to give it to us." Of course there is no single sentence in the Decision that even remotly implies that Badme will go “to the country that administered the area at the time of the war.” There is none. In fact as Ethiopia wanted it to be done the border was arbitrated as how it was before 1935. This is what we read in the Decision.

The Commission has told Ethiopia unequivocally and in unambiguous terms that the classical line will stand as a border as it was throughout the years. Or in its own words:“The Commission does not find in them [in Ethiopia’s submission] evidence of administration of the area sufficiently clear in location, substantial in scope or extensive in time to displace the title of Eritrea that had crystallized as of 1935.” How much more clearly can the Decision be than this?

Now, from what the President of the Commission told the UN Security Council in the March 6, 2003 Report, Ethiopia’s understanding of the April 13 Decision, among other issues, is that the classical straight-line border between Tomsa and Mai Ambessa has to be "refined" during demarcation based on the subsequent practice of the Parties. But that evidence has already been ruled to be not sufficiently clear in location, or substantial in scope to make changes. Bringing this thing up is nothing short of trying to reopen the case. It is for this reason the Commission is characterizing Ethiopia's request as an attempt to "reopen" or "reargue" the final and binding Decision. It is also this request from Ethiopia that is undermining the whole peace process. The Border Commission has also made it clear that when it talked about "refinement" of the line in its April Decision what it had in mind was the part of the boundary line within rivers which both countries had "favoured the deferment to the demarcation stage." The Commission wanted to determine this line "by reference to the location of the main channel" that will be identified during the dry season. And of course the special nature of the delimitation of the border around Tserona, Zalambessa that was given by a semicircle had to be refined during demarcation. One other point of refinement is that the midpoint between the Eritrean and Ethiopian checkpoints at Bure is to be determined during demarcation. Other than these the "refinement" of the border talked by the Commission is to the seconds and minutes of coordinates not to the change of the shape of a line upon examining freshly submitted evidence as Ethiopia is saying. This is at the crux of the matter. The ball is now in the UN's court. It should not allow Ethiopia to reargue a case that it had already lost. Let an honest demarcation take place and it will confirm that "Badme is in Eritrea."

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