Too Rough a Justice: The Ethiopia-Eritrea Claims Commission and International Civil Liability for Claims for Rape Under International Humanitarian Law

Abstract

The developments in international law prohibiting rape during armed conflict have grown at a rapid pace in recent decades. Whereas rape had long been considered an inevitable by-product of armed conflict, evolution in international humanitarian law (IHL) has relegated this conception mostly to the past. The work of international criminal tribunals has been at the forefront of this change, developing the specific elements of the international crime of rape, and helping to change the perception of rape in international law. Violations of IHL, however, also give rise to civil liability. Despite the advances with respect to rape made in the international criminal law context, non-criminal adjudication of claims for rape has been rare. Recently, the Ethiopia-Eritrea Claims Commission completed eight years of work, making numerous damage awards for civil claims based on violations of IHL that occurred during the war between those two states. Among the claims it heard were several claims for rape, brought by both parties. Thus, the completed work of the Ethiopia-Eritrea Claims Commission represents an important opportunity to examine civil adjudication of claims for rape under IHL.

This Article asks whether the work of the Commission has helped to extend the protections afforded by IHL, and whether its treatment of the claims for rape is in line with the progress made within IHL regarding the conceptualization of rape. It locates and analyzes the work of the Commission within the broader changes that have occurred within IHL with respect to rape, outlines the work of the Commission, and analyzes its substantive and procedural decisions. This Article argues that, while the Commission contributed certain substantive and procedural advances to IHL, it may have simultaneously created certain gaps in the IHL regime and hindered the conceptualization of rape within IHL.

Keywords: international law, international arbitration, Ethiopia-Eritrea Claims Commission, international humanitarian law, international criminal law, sexual violence, rape, law of war