The Eritrean pilot who drooped cluster bomb on an Ethiopian elementary school a decade ago is now reportedly in Djibouti. The June 5/1998, Ayder school bombing – that left 60 dead and another 168 injured – was a turning points in the Ethiopian public opinion that was already enraged by the news of Eritrean invasion a few weeks ago.
According to news from Africa ExPress, the Eritrean pilot, Habtom Kahsay, has recently defected to Djibouti and “plans seeking political asylum in another country”.
On the other hand, Djibouti has a bilateral Mutual Legal Assistance and Extradition Treaty with Ethiopia and is also party to a similar treaty under IGAD – a grouping of countries in the Horn of Africa.
Therefore, we sought a professional opinion on the matter from Mehari Taddele Maru, who is a Doctor of Jurisprudence, an International Consultant on African Union affairs and a Research Fellow at the NATO Defense College.
HornAffairs’ questions were: Can and should Ethiopia demand Djibouti to handover the pilot? Would it be feasible considering the legal, political implication of the matter, both on Eritrean internal political dynamics and other international developments?
Mehari Taddele Maru provided an elaborate reply, via email from Rome, Italy, as follows:
Four questions to be answered clearly before making a judgment on the case:
1. Is bombing Ayder School an international crime?
2. If yes, did the pilot commit the crime willfully or was he acting under the orders of the Eritrean government? Was he coerced?
3. Should the pilot be excluded from the benefits of refugee protection as per the laws of the 1969 OAU (now AU) Refugee Convention and the 1951UN Refugee Convention?
4. If yes, should Djibouti hand the pilot over to Ethiopia, which is technically ( if not officially) at war with Eritrea? Do Djibouti and the international community considers that handing him over to Ethiopia could violate the principle of non-refoulement?
A. The pilot cannot be returned to Eritrea because he faces a real risk of torture or inhuman or degrading treatment or life threatening punishment in that country.
B. Article 1(5) of the AU Refugee Convention stipulates that “the provisions of this Convention shall not apply to any person with respect to whom the country of asylum has serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.”
C. Similarly Article 1F(c) of the Convention on the Status of Refugees (“the UN and also AU Refugee Convention”) excludes from refugee status and protection “any person with respect to whom there are serious reasons for considering that . . . he has been guilty of acts contrary to the purposes and principles of the United Nations and war crimes, crimes against humanity and genocide.”
D. Article 1F of the Refugee Convention excludes three types of person from the definition of refugee: “The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”
E. The bombing of Ayder School and even the city of Mekelle, a city with a known civilian population, are actions that may fall within more than one of these categories. Under international law, willful and deliberate bombing of schools and civilian areas, even during times of war, would constitute war crimes or crimes against humanity. The bombing of a school can constitute a “serious non-political crime” and an act “contrary to the purposes and principles of the United Nations”.
F. Moreover, the pilot could have landed in Mekelle or Djibouti if he wished to avoid executing Isaias’s order. Dependent on the evidence, he may be considered to have less culpability, but could still be found criminally responsible for his actions by a court of law. If so, he could be excluded from the benefits of international asylum protection and refugee status.
G. It is possible that Djibouti would not grant him refugee protection. Djibouti is legally precluded, in terms of international law, from granting him refugee protection.
H. The second question is more complicated as now Djibouti has three options: try him in Ethiopia, hand him over to Djibouti, or send him to a third country for trial. The first option would be opposed by the international community as Ethiopia is officially at war and could consider the pilot to be a Prisoner of War ( PoW). Alternatively Ethiopia has to make an official declaration that it will allow all international actors, including the ICRC and UN, to attend and monitor his trial if he is handed over to the government in Adis Ababa. In this regard, the hypothetical question may arise: What would Ethiopia feel if one of its pilots, who defected to Sudan for example, was handed over to Eritrea? So this option might be the least desirable for the international community, but more desirable for the victims of the bombing.
I. The second option is the most preferable and viable, if Djibouti is willing to try him. It would allow Ethiopia to provide evidence and follow the trial. This should be highly acceptable for the international community. After all, Djibouti needs to consider his case for asylum and this would require the legal consideration of his case and possibly the need for a trial.
J. The third option could provide an acceptable solution, but dependent on which third country? Perhaps if handed over to the UN or AU, then Ethiopia could legally request that the pilot be tried in an international tribunal of some sort. However, such an alternative solution would be the most unlikely of the three available options.
Whatever the preferred and most feasible option, Ethiopia should request that the pilot be tried in Djibouti or by a third party, or that he be handed over to Addis Ababa should the other options not prove possible to implement. Undoubtedly, however, the best option would be for the pilot to be subjected to a trial in Djibouti.
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