49. At the 31st Session of the African Commission, both the Respondent States asserted that they
had filed with the Claims Commission, all the matters covered by communication 233/99 and 234/99.
50. The government of Eritrea contended that it made claims for violations of the rights of Eritrean
citizens and/or Ethiopian citizens of Eritrean ethnic origin and that these claims also constitute
allegations of violations of the African Charter and of international law (Statements of Claims Nos. 15,
16, 17, 19 and 21). The claims include the internment without trial of civilians because of their
membership in political organisations or for reasons of their ethnicity or national origin. The
government of Eritrea stated that it made claims on behalf of persons of Eritrean citizenship and/or
Eritrean national origin for:
The illegal internment of civilians in concentration camps without formal accusation or trial;
The physical maltreatment and torture of such individuals;
The discriminatory dismissals from employment, evictions from rental property, and seizure of
property from persons of Eritrean national origin who are still present in Ethiopia.
51. The government of Ethiopia also argues that the allegations presented in this communication
have been submitted to the Claims Commission. They state that in their Statement of Claim No. 5 that
they submitted before the Claims Commission, they made claims for the unlawful treatment of
Ethiopian nationals living in Eritrea, including arbitrary detention, mass internment, torture, abuse,
murder, forced disappearances, forced conscription into the military, confiscation of property and
systematic rape of Ethiopian women. The Statement of Claim also includes factual representations
relating to the Eritrean government’s policy of discrimination against Ethiopians in Eritrea, including
arbitrary dismissal of Ethiopian nationals from public and private employment in Eritrea; Eritrea’s
unlawful restrictions on the freedom of movement, including exit from Eritrea and forceful expulsion of
Ethiopians and unlawful and inhuman conditions during the expulsion of Ethiopian nationals from
Eritrea.
The Relevance or Otherwise of Article 56 (7) of The African Charter
52. Article 56 (7) of the African Charter provides:
“Communication relating to human and peoples’ rights referred to in Article 55 received by the
Commission, shall be considered if they: (7) do not deal with cases which have been settled by these
States involved in accordance with the principles of the Charter of the [UN], or the Charter of the
[OAU] or the provisions of the present Charter.”
53. Article 56 (7) of the Charter precludes the African Commission from considering cases that have
been settled by States in accordance with the principles of the Charter of the UN, or the Charter of the
OAU or the provisions of the present Charter.
54. The Complainant refers the African Commission to its decision in communication 59/91 Emgba
Mekongo Louis/Cameroon, where it held that mediation by political institutions such as the European
Union was irrelevant to Article 56 (7) of the Charter. INTERIGHTS thus submits that this holding
applies with equal force to the political organs of the OAU.
55. The Claims Commission created by a Peace Agreement should not be viewed as a political
organ of the OAU; rather it is a body that has been established under a Peace Agreement and which,
under Article 5 (13) , is bound to apply rules of international law and cannot make decisions ex aequo
et bono. Indeed the Claims Commission has ruled that in dealing with evidence, they must apply
evidentiary rules that prove or disprove disputed facts (see decision number 4 of the Claims
Commission). The Claims Commission therefore has the capacity, unlike the African Commission to
deal with complex matters such as the citizenship status of the individuals, what amount of
compensation shall be awarded and to whom, in respect of the violations that they have suffered.
Such was the complexity that the African Commission was faced with inEmgba Mekongo
Louis/Cameroon (supra) where it found a violation of Mekongo’s rights but stated “that it was unable to
determine their amount and the quantum should be determined under the law of Cameroon”.
56. In communication 60/91 Constitutional Rights Project/Nigeria, the African Commission held that it
would not rely on the process or mechanism of a “discretionary, extra-ordinary … non-judicial