As an arbitration tribunal determining post-war violations of international humanitarian law on a civil rather than a criminal basis, and proceeding with minimal resources and time, the EECC has understandably generated little coverage. It is therefore worth flagging that the EECC has addressed allegations of rape in several awards. (As a commissioner, I cannot comment, but merely quote from or refer to the awards.)
The following virtually identical “Comment on Rape” appears in the Partial Awards in the “Central Front” Claims (Ethiopia’s Claim 2; Eritrea’s Claims 2, 4, 6, 7, 8 & 12) (quoting from the latter, section D, pp. 9-11; footnote omitted, emphases supplied by the Commission):
36. The Commission considers that allegations of rape deserve separate general comment. Despite the incalculable suffering inflicted upon Ethiopian and Eritrean civilians alike in the course of this armed conflict, the Commission is gratified that there was no suggestion, much less evidence, that either Eritrea or Ethiopia used rape, forced pregnancy or other sexual violence as an instrument of war. Neither side alleged strategically systematic sexual violence against civilians in the course of the armed conflict and occupation of Central Front territories. Each side did, however, allege frequent rape of its women civilians by the other’s soldiers.
37. The Parties agree that rape of civilians by opposing or occupying forces is a violation of customary international law, as reflected in the Geneva Conventions. Under Common Article 3(1), States are obliged to ensure that women civilians are granted fundamental guarantees, including the prohibition against “violence to life and person, in particular murder of all kinds,mutilation, cruel treatment and torture . . . outrages on personal dignity, in particular humiliating and degrading treatment.” Article 27 of the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War ... provides:
"Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.
"Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution or any form of indecent assault."
38. Article 76.1 of Protocol I adds: “Women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault.”
39. We turn now to the specific allegations and proffered evidence concerning rape of civilian women. Both Parties explained that rape is such a sensitive matter in their culture that victims are extremely unlikely to come forward, and when they or other witnesses do present testimony, the evidence available is likely to be far less detailed and explicit than for non-sexual offenses. The Commission accepts this, and has taken it into account in evaluating the evidence. To do otherwise would be to subscribe to the school of thought, now fortunately eroding, that rape is inevitable collateral damage in armed conflict.
40. Given these heightened cultural sensitivities, in addition to the typically secretive and hence unwitnessed nature of rape, the Commission has not required evidence of a pattern of frequent or pervasive rapes. The Commission reminds the Parties that, in its Partial Awards on Prisoners of War, it did not establish an invariable requirement of evidence of frequent or pervasive violations to prove liability. The relevant standard bears repeating ...:
"The Commission does not see its task to be the determination of liability of a Party for each individual incident of illegality suggested by the evidence. Rather, it is to determine liability for serious violations of the law by the Parties, which are usually illegal acts or omissions that were frequent or pervasive and consequently affected significant numbers of victims."
41. Rape, which by definition involves intentional and grievous harm to an individual civilian victim, is an illegal act that need not be frequent to support State responsibility. This is not to say that the Commission, which is not a criminal tribunal, could or has assessed government liability for isolated individual rapes or on the basis of entirely hearsay accounts. What the Commission has done is look for clear and convincing evidence of several rapes in specific geographic areas under specific circumstances.
42. Perhaps not surprisingly, the Commission has found such evidence, in the form of unrebutted prima facie cases, in the Central Front regions where large numbers of opposing troops were in closest proximity to civilian populations (disproportionately women, children and the elderly) for the longest periods of time – namely, Senafe Town in Eritrea and Irob Wereda in Ethiopia. Knowing, as they must, that such areas pose the greatest risk of opportunistic sexual violence by troops, Eritrea and Ethiopia were obligated to impose effective measures, as required by international humanitarian law, to prevent rape of civilian women. The clear and convincing evidence of several incidents of rape in these areas shows that, at a minimum, they failed to do so.
43. For other areas along the Central Front, although there was evidence of occasional rape (deserving of at least criminal investigation), the Commission did not find sufficient evidence on which to find either government liable for failing to protect civilian women from rape by its troops.
The main findings on rape appear in the Partial Awards in Eritrea’s Central Front Claims (paras 80-81); Ethiopia’s Central Front Claim (paras 83-84; Ethiopia’s Civilians Claim (paras 83-90); Ethiopia’s Western and Eastern Front Claims (paras 49-56); and Eritrea’s Prisoner of War Claim (paras. 139-142).