The Final Awards were for “claims by both Eritrea and Ethiopia for violations of international law previously found by the Commission in its fifteen Partial and Final Awards on liability, rendered between July 1, 2003 and December 19, 2005.”
The international Commission has awarded Ethiopia $174 million and Eritrea $161.4 million in damages over their 1998-2000 border war. This ruling, released after eight years of hearings, means Eritrea has to pay Ethiopia $12.6 million. Eritrea said it would respect the ruling, but Ethiopia disagreed with the amount, deeming the balance of compensation that Eritrea owed it was too small for its neighbour's actions.
Realizing that human loss and suffering resulting from a conflict are difficult to quantify, the Commission “note(d) that its awards of monetary compensation for damages are less – probably much less – than the Parties believe to be due” and that “its awards probably do not reflect the totality of damages that either Party suffered in violation of international law.”
The Commission was also aware of the difficult nature of calculating the awards:
In weighing its awards of compensation for damages, the Commission has had to take into account multiple factors, often not subject to precise quantification. It has weighed the nature, seriousness and extent of particular unlawful acts. It has examined whether such acts were intentional, and whether there may have been any relevant mitigating or extenuating circumstances. It has sought to determine, insofar as possible, the numbers of persons who were victims of particular violations, and the implications of these victims’ injuries for their future lives.
In making the final awards, the Commission found that “three elements of general international law affect(ed) the (...) compensation proceedings: (a) the preclusive effect of the Commission’s earlier decisions on liability (res judicata); (b) the role of evidence and the burden of proof; and (c) the requirement of a legally sufficient connection between wrongful conduct and injury for which damage is claimed.”
With respect to res judicata, the Commission noted that previous awards were final and binding, thus precluding the parties from re-litigating certain claims. Only injuries “bear(ing) a sufficiently close causal connection with conduct that the Commission previously found to violate international law” could be compensated. This meant that the Commission would not review or amend the parties’ previously determined liabilities, but only apply the previous findings in determining proper compensation.
Regarding the burden of proof, during the liabilities stage of the arbitration, the Commission required “clear and convincing proof of liability.” However, at the compensation stage, the Commission emphasized that this standard of proof “would frustrate the Commission’s agreed mandate to address ‘the socio-economic impact of the crisis on the civilian population’ under Article 5(1) of the Agreement.” It opted for a lesser standard, noting that “the evidence regarding such matters as the egregiousness or seriousness of the unlawful action, the numbers of persons injured or property destroyed or damaged by that action, and the financial consequences of such injury, destruction or damage, is often uncertain or ambiguous. In such circumstances, the Commission has made the best estimates possible on the basis of the available evidence. Like some national courts and international legislators, it has recognized that when obligated to determine appropriate compensation, it must do so even if the process involves estimation, or even guesswork, within the range of possibilities indicated by the evidence.”
Finally, with respect to the causation element, the Commission determined that “compensation can only be awarded in respect of damages having a sufficient causal connection with conduct that violates international law.” The Commission likened this to the “proximate cause” principle found in some legal systems, including the U.S., which requires that only injuries reasonably foreseeable to the violator be compensated.
Given the nature of the conflict, some damages were more difficult to calculate than others. Several injuries, particularly those to infrastructure, were relatively easy to identify and quantify. Other injuries, such as damage to personal property, were difficult to prove and posed a big calculation challenge to the Commission. In such instances, the Commission opted for compensation, even if evidence was not conclusive, noting that while “this process was unavoidably imprecise and uncertain, (...) it was necessary given the limitations of the record.”

  • For a complete list of the damages and awards, including detailed discussion about the Commission’s steps in determining loss, consult the Eritrea awardand the Ethiopia award.