Professor Asmerom Legesse Gets It Wrong

In an article entitled “Critique of the Human Rights Commission [sic] on Eritrea”, Professor Asmerom Legesse attempts to take to task the Commission of Inquiry on Eritrea (CoI-E) as well as Ms. Sheila Keetharuth, the UN-appointed Special Rapporteur on “the situation of human rights in Eritrea.” Unfortunately, even very able and committed advocate of a cause—and Professor Asmerom, with his generous smile, and his massive contribution to de-colonial anthropology is impossible to dislike–can only go so far if the cause he is advocating is wrong (factually and morally) and the methodology he is criticizing is exactly the same as the one he personally conducted: “The Uprooted: Case Material on Ethnic Eritrean Deportees from Ethiopia Concerning Human Rights Violations.”

I. Background

On May 13, 2014, the UN-appointed Special Rapporteur on conditions of human rights in Eritrea filed her report after conducting a year-long survey. After itemizing cases of arrest and deprivation of liberty, the abysmal conditions of detention, case studies of women and children in custody and how all of this violates Eritrea’s human rights obligations under international law, the Special Rapporteur concluded that the Government of Eritrea uses the so-called “no peace no war” environment with Ethiopia to inflict “severe restrictions on civil, political, economic and social rights, as well as a lack of economic opportunities; excessive militarization of society, with a high proportion of the population either in indefinite national service or the People’s Militia; forced migration and that the government does all of the above with impunity.”

In June 2014, the UN appointed a three-person Commission of Inquiry on Eritrea (CoI-E)– (one of whom was the Special Rapporteur)– and mandated it to “investigate all [emphasis mine] alleged violations of human rights in Eritrea, as outlined in the reports of the Special Rapporteur.” On June 4, 2015, after a year-long investigation which included 500 interviews and 160 submissions from exiled Eritreans, the CoI-E issued its 500-page report concluding “the commission found that systematic, widespread and gross human rights violations have been and are being committed in Eritrea under the authority of the Government. Some of these violations may constitute crimes against humanity.”

II. Professor Asmerom Legesse’s Rebuttal

In his “Critique of the Human Rights Commission [sic] on Eritrea,” Professor Asmerom Legesse makes the following points:
(a) The Commission relied heavily on asylum-seekers who are incentivized to lie so they can get asylum. The Commission should also have interviewed asylees (those who have already received asylum) as those have less incentive to lie;
(b) The Special Rapporteur saw her task as that of a prosecutor and not an investigator. The distinction is not just a frame of mind but a presumption of innocence and an opportunity for the Government of Eritrea to defend itself;
(c) The Special Prosecutor Rapporteur worked closely with opposition groups and regime-change advocates and did not speak to “mainstream Eritrean communities” including members of the National Union of Eritrean Women (NUEW);
(d) The Special Rapporteur did not highlight the government’s achievements generally recognized as human rights: food security, primary education, universal health care;
(e) The Special Rapporteur did not sufficiently credit the government for observing the UN’s Covenant for Economic, Social and Cultural Rights because it didn’t mention how the government supports societies efforts to preserve and develop their cultures and languages; nations can focus their efforts on “Covenant on Civil and Protective Rights”—which is about individual rights—or they can focus on “Covenant for Economic, Social and Cultural rights”—which is about group rights.

Now, if you notice, all the rebuttals are addressed to the Special Rapporteur—which is odd considering that his intro tells us “the world is buzzing with media commentary in response to the report by the Commission of Human Rights on Eritrea” and you would think he would buzz back. But no matter: let’s get to the substance.

III. Professor Asmerom Legesse Undermining His Own Work?

During and shortly after the Eritrea-Ethiopia war of 1998-2000, Professor Asmerom Legesse interviewed many of the Eritreans (and Ethiopians of Eritrean ancestry) of the 70,000 who were deported by the government of Ethiopia. From that interview, he issued three reports entitled “The Uprooted” where he made the argument that Ethiopia had violated international law, and specifically Universal Declaration of Human Rights and the Convention on the Rights of the Child.

At the time, Ethiopian writers made this argument: there are 500,000 Ethiopians of Eritrean ancestry; 130,000 of them voted on the Eritrean referendum; and we deported 70,000. So, how can Eritrea argue that Ethiopia has attempted to “ethnic-cleanse” every Ethiopian of Eritrean ancestry? How can it be argued that it went after those who voted in the Eritrean referendum?

Well, now, curiously, Professor Asmerom is making their argument: there are hundreds of thousands of exiled Eritreans who have NOT been abused by the Eritrean government; why didn’t the Special Rapporteur and the Commission of Inquiry interview them? For the same reason, Professor Asmerom Legesse, that you didn’t interview the hundreds of thousands of Ethiopians of Eritrean ancestry who were not deported: it was entirely irrelevant to the mandate. The Uprooted was trying to determine the magnitude of the deportations of Eritreans and Ethiopians of Eritrean ancestry: the mechanics of the deportation and what patterns could be detected.   Would going to Ethiopia and interviewing people who were not deported have changed the narrative of The Uprooted?

Here, the CoI-E and the Special Rapporteur interviewed exiled Eritreans to report on the magnitude of the exile and the conditions that led to their exile.   How would interviewing “settled asylees” have changed anything, particularly when the CoI-E Chairman, Mike Smith, said he HAD interviewed them and their stories are not substantially different from the recent arrivals? Was he also supposed to interview people who were exiled during the Haile Selasse and Mengistu era—people who only know Eritrea remotely and have not lived day-to-day under the rule of the Isaias Afwerki government? But that was not the mandate they were given.

The exculpatory evidence that Professor Asmerom Legesse is seeking to find could only have come if the Special Rapporteur and the CoI-E were allowed entry to Eritrea to interview Eritrean prisoners, prison wardens, Eritrean members of the national service, families of the accused and the disappeared, female members of the national service…. As an accomplished anthropologist, Professor Asmerom Legesse knows that is how one gathers data; however, the Government of Eritrea refused access because it very well knows what the interviews would have shown.

IV. Investigator or Prosecutor?

Professor Asmerom then goes on to indict the Special Rapporteur for seeing her role as a prosecutor and not an investigator. This begs the question of “what is a special rapporteur and what is their mandate?” Let’s go to the source, the Human Rights Council (HRC): “The Special Procedures of the Human Rights Council are independent human rights experts with mandates to report and advise on human rights from a thematic or country-specific perspective…. Special procedures are either an individual (called “Special Rapporteur” or “Independent Expert”) or a working group composed of five members, one from each of the five United Nations regional groupings: Africa, Asia, Latin America and the Caribbean, Eastern Europe and the Western group.”

There are 14 Special Rapporteurs and Experts right now monitoring 14 states. Some, like Sudan, have had one since 1993.  On the difference between “prosecutor” and “investigator”, I think it bears noting that the Special Rapporteur was appointed after the State of Eritrea repeatedly failed to address specific requests by the Human Rights Council and, therefore, the mandate that the Special Rapporteur was given ALREADY assumed that the State was guilty of major infractions. From resolution 20/20:

The HRC: strongly condemns: (a) The continued widespread and systematic violations of human rights and fundamental freedoms committed by the Eritrean authorities, including cases of arbitrary and extrajudicial executions, enforced disappearances, the use of torture, arbitrary and incommunicado detention without recourse to justice, and detention in inhumane and degrading conditions; (b) The severe restrictions on freedom of opinion and expression, freedom of information, freedom of thought, conscience and religion, and freedom of peaceful assembly and association, including the detention of journalists, human rights defenders, political actors, religious leaders and practitioners in Eritrea; (c) The forced conscription of citizens for indefinite periods of national service, which could amount to forced labour, the alleged coercion of minors into the military and the mining industry, as well as the intimidation and detention of family members of those suspected of evading national service in Eritrea; (d) The shoot-to-kill practice employed on the borders of Eritrea to stop Eritrean citizens seeking to flee their country; (e) Any violation by the Government of Eritrea of its international human rights obligations in connection with the collection of taxes outside Eritrea from its nationals; (f) The lack of cooperation with international and regional human rights mechanisms by Eritrea;

The HRC: Calls upon the Government of Eritrea, without delay: (a) To end its use of arbitrary detention of its citizens, and to end the use of torture and inhumane and degrading treatment and punishment; (b) To account for and release all political prisoners, including the “G-11”; (c) To ensure free and fair access to an independent judicial system for those detained to improve prison conditions and to allow regular access to prisoners for relatives, legal advocates, medical care, and other competent and legally authorized authorities and institutions; (d) To put an end to the policy of indefinite military service; (e) To allow human rights and humanitarian organizations to operate in Eritrea without fear or intimidation; (f) To respect everyone’s right to freedom of expression and freedom of thought, conscience and religion or belief, and freedom of peaceful assembly and association; (g) To promote and protect women’s rights, including by taking measures to combat harmful practices, such as early marriage and female genital mutilation; (h) To implement the recommendations accepted during its universal periodic review and to report on progress made; (i) To end “guilt-by-association” policies that target family members of those who evade national service or seek to flee Eritrea; (j) To cooperate fully with the Office of the United Nations High Commissioner for Human Rights, in accordance with its international human rights obligations, by, inter alia, allowing access to a mission by the Office as requested by the High Commissioner, the human rights treaty bodies, all mechanisms of the Human Rights Council and with all international and regional human rights mechanisms; A/HRC/RES/20/20 3 (k) To provide the Office of the High Commissioner with all relevant information on the identity, safety, well-being and whereabouts of all detained persons and persons missing in action, including journalists and Djiboutian combatants; (l) To implement fully the Constitution of Eritrea adopted in 1997;

The HRC: Urges Eritrea to make available information pertaining to Djiboutian combatants missing in action since the clashes of 10 to 12 June 2008 so that those concerned may ascertain the presence and condition of Djiboutian prisoners of war; 4. Decides to appoint a special rapporteur on the situation of human rights in Eritrea for a period of one year, who will submit a report to the Human Rights Council at its twenty-third session; 5. Calls upon the Government of Eritrea to cooperate fully with the Special Rapporteur, to permit access to visit the country and to provide the information necessary for the fulfilment of his or her mandate; 6. Requests the Secretary-General to provide the Special Rapporteur with all information and the resources necessary to fulfil the mandate;

So, no, the role of the Special Rapporteur is not that of an unbiased investigator: that train left the station a long time ago when the Government of Eritrea failed to address its massive human rights violations. The people who appointed her have told her we have a long history with this country and we know it is doing terrible things to its own citizens and it has refused to acknowledge doing terrible things and correcting them and we have strongly condemned it for it; we want you, the Special Rapporteur, to document it.

In any event, it is always jarring to hear the Government of Eritrea, which has arrested thousands of its citizens without evidence, without giving them to the right to self-defense, argue so vociferously about due process.

V. The Special Rapporteur & The Eritrean Opposition

Professor Asmerom Legesse feigns surprise that the source for the Special Rapporteur and, in fact the Commission of Inquiry on Eritrea, is the Eritrean opposition. Well, sir, it goes beyond that: the reason for the HRC’s resolution itself is the Eritrean opposition: how else would it know about arbitrary and extrajudicial executions, enforced disappearances, the use of torture, arbitrary and incommunicado detention, and detention in inhumane and degrading conditions, severe restrictions on freedom of opinion and expression, freedom of information, freedom of though, conscience and religion, and freedom of peaceful assembly and association, including detention of journalists, human rights defenders, political actors, religious leaders, the forced conscription of citizens for indefinite periods of national service and the shoot-to-kill practice? It is not because there are international reporters in Eritrea (banned); it is not because there are NGOs (banned); it is not because the Asmara-based embassies are filing reports (movements restricted from Asmara and citizens strongly discouraged from talking to them.) It is because the Government of Eritrea has made the entire citizenry the opposition.

I don’t know why Professor Asmerom Legesse is tsk-tsking this: if you have a company that is violating the law, the investigator will talk to the whistle-blowers. Similarly here, when a State is violating its citizens human rights, one talks to the whistle-blowers: the opposition.

It is fair to say that since the opposition includes “regime change” advocates, they are incentivized to exaggerate, to lie, to say and do anything to get a short-cut to power. Fine. The best way to prove that we are liars and exaggerators is to engage the Special Rapporteur and show her the following:

1. There is no arbitrary arrest: everyone who was arrested was charged, given due process, and sentenced. The State of Eritrea can’t do that;
2. There are no restrictions on freedom of opinion and expression, please refer to all our media. The state of Eritrea can’t do that;
3. There are no restrictions on freedom of peaceful of assembly: look at the last demonstration held against the government. The State of Eritrea can’t do that.
4. There is no forced conscription for indefinite period: look at all the citizens who were demobilized and served only 18 months The State of Eritrea can’t do that.
5. There is no degrading or inhumane treatment of prisoners: talk to all our prisoners! The State of Eritrea can’t do that.
6. We have accounted for and/or released all political prisoners including the G-15. The State of Eritrea can’t do that.
7. We allow regular access to prisoners for relatives, legal advocates, medical care, and other competent and legally authorized authorities and institutions. The State of Eritrea can’t do that.
8. We have ended “guilt-by-association” policies that target family members of those who evade national service or seek to flee Eritrea. The State of Eritrea can’t do that.
9. We have implemented the 1997 Constitution of Eritrea. The State of Eritrea can’t do that.
10. We are co-operating fully with the Special Rapporteur and giving her access to Eritrea to fulfill her mandate. The State of Eritrea can’t do that.

As for the pretense of trying to show the National Union of Eritrean Women (NUEW) is an independent civil society that advocates for women’s rights and is an independent pressure group all you had to show, Professor Asmerom, is one incident—one, the number next to zero—where it actually did that. And in its entire existence—and that is decades—on all the issues that affect women: FGM, divorce, reproductive rights, sexual abuse of women in Sawa. But NUEW was nowhere to be found because it reports to military men.

VI. What About MDG!

In 2000, the UN set goals—Millenium Development Goals (MDG)—that required all member states to hit specific targets in 1. Eradicating extreme hunger and poverty; 2. Achieve universal primary education; 3. Promote gender equality and empower women; 4. Reduce child mortality; 5. Improve maternal health; 6. Combat HIV/Malaria and other diseases; 7. Ensure environment sustainability; 8. Global partnership for development.

Now, despite the fact that (a) the baseline being used is 1990 when there was no Eritrea and thus the baseline is an estimate; (b) Eritrea has no census (our population is estimated between 4 million and 6.5 million) and the whole MDG calculation is based on a ratio of metric to population; (c) Eritrea’s budget is a secret and nobody knows where it is allocating its resources; (d) there is no Statistics Department to speak of and there is no independent auditor to verify anything; (e) quite a few Sub-Sahara African countries have registered impressive gains in some of the MDGs…

Despite all of the above, the Eritrean government has wanted to use its achievements in MDG4, MDG5 and MDG6 as unique, magical conversation-enders for everything.

Well, sure, there is forced disappearance…but let’s talk about how we tackled malaria! Well, sure, there may be arbitrary arrest…but let’s talk about how we arrested HIV/AIDS and TB! Well, sure, we may arrest mothers for their deserting children…but let’s talk about how much we have improved maternal health!

For whatever reason, Professor Asmerom Legesse jumps on this bandwagon and accuses the Special Rapporteur for not noting this, despite the fact that it has nothing to do with her mandate. Her mandate was: we believe the Government of Eritrea is violating international law and arresting, causing forced disappearance, extrajudicial killing of its own citizens, that there is rule of fear and not rule of law: please confirm. Why would she write about MDGs?   In any event, the Commission of Inquiry on Eritrea, whose 500-page report that Professor Asmerom Legesse doesn’t even begin to address, does include the “MDG Achievements” in the background section.

VII. Sure, the State Kills, But It Also Feeds, Heals & Throws One Hell of an Expo

I have heard this argument before but Professor Asmerom Legesse actually makes it sound almost rational. What are human rights? If you come from a capitalist background, he says, that is about the right of the individual and his/her civil liberties: freedom of speech, of conscience, of due process, of assembly.   But if you come from a collectivist background, he says, human rights are about the collective right to food, shelter, healthcare and culture.

The UN has two conventions that deal with both: the Universal Declaration of Human Rights as well as the UN’s Covenant for Economic, Social and Cultural Rights.   The Special Rapporteur is obsessed with the former and neglects the latter or, as the good Professor put it: “Keetharuth dwells largely on civil and political rights of 450 individuals and aligns herself totally with capitalist nations in placing issues of governance, freedom of speech and assembly above the economic, social and cultural rights.”

First of all, the report filed by the Special Rapporteur and the Commission of Inquiry on Eritrea is not the story of “450 individuals” but that of the whole country. It is my story, it is the story of Eritreans reading this article—whether they are pro-government, pro-opposition, or indifferent. I don’t know anything personal about Professor Asmerom Legesse—other than that he has a winning smile and he lives in a house he was born in, because a documentary I saw told me so—but I am willing to bet anything that he has close friends, family members who were subjected to forced disappearance and arbitrary arrest. So, when you are dealing with something that affects the entire country, it is futile to try to minimize it as witnesses and testimony-providers are born every day.

Secondly, I am trying to understand why the two rights—individual rights and group rights—are in contradiction.   Maybe I do: I think what he is saying is that the State has finite resources and when it comes to deciding whether it should allocate its resources to building courts or importing food; building a law school or an engineering school, it will opt for importing food and building an engineering school? Maybe? But, if that is the case, shouldn’t the people have a say in that? Maybe they will find another source such us calculate how much it costs to build all the prisons and feed, house, guard all the prisoners and use a fraction of that money to build up the legal institution?

Conclusion
Professor Asmerom Legesse should be complimented for at least trying to provide substantive response to one of the reports of the HRC, a stark contrast to the categorical denial and fog-blowing that was made by representatives of the Government of Eritrea, some of whom have family members who have disappeared since 2001 (I am looking at you, Ambassador Beyene Russom.)   Nonetheless, he is wrong on the facts when he assumes that the testimony of the Commission of Inquiry was given by recent asylum seekers when the Chairman had said he interviewed those seeking settlement and those who had received settlement papers and there was no difference in their narrative. CoIE had considered, just like CoI on North Korea, to have the testimonies made public but given that the Government of Eritrea practices “guilt by association” and traumatizes families of asylum-seekers, it refrained from doing so.

Just on this regard only, forgetting all other allegations, the Government of Eritrea is failing even by the low standards of Mengistu Hailemariam because, during the Derg era, both the father and brother of Eritrea’s now head of state, then rebel-leader, Isaiaas Afwerki, were allowed to live their lives in Asmara unmolested by the Derg.  Isaias Afwerki fails even by the “Black Stalin” standards of Mengistu Hailemariam, which is quite an indictment on his regime. 

Professor Asmerom Legesse is also blemishing his own The Uprooted series of reports when he demands that a murderer should be given the benefit of doubt because we have to interview all the people he didn’t murder.

Furthermore, to demand that the Special Rapporteur be a neutral “investigator” when the mandate she was given tells her the people she is investigating are guilty of heinous crimes is naive. The time to pre-empt the naming of the Special Rapporteur was ten years ago when the Government of Eritrea ignored repeated pleas to stop disappearing people and to bring the accused to a court of law.

The achievements of MDG 4, MDG 5, and MDG 6 are not exceptional to other Sub Sahara Africans and repeated mentions of them only highlight the deficiencies in MDG 1, MDG 2 and MDG 3. MDG1 (dealing with extreme poverty) has not been reached and is unlikely to be reached when a government deliberately courts sanctions and fails to do anything to get them lifted and pursues disastrous economic policies.  MDG2  (dealing with education): the State of Eritrea’s education system will always be sabotaged when the only high school is in a military compound—it is designed to fail.  MDG-3 (equality of women) has been seriously compromised by the repeated stories of sexual abuse of women and when the women’s advocacy group—National Union of Eritrean Women—reports to military men who are unlikely to take seriously allegations of sexual abuse.

Finally, while the distinction the Professor makes between individual rights and group rights is illuminating, he fails to explain why one has to come at the expense of the other. But mostly, his rebuttal fails because, in pursuit of some cause, he is denying what he himself knows: that the country is full of the disappeared, the arbitrarily arrested, and it has not rule of law.  There is a Cabinet Member right now, sitting in the cabinet of ministers of Isaias Afwerki, who doesn’t know what happened to her disappeared husband.  So, the era of shefno shefafno is long gone, Professor.