On June 8, 2016, the Commission of Inquiry on Human Rights in Eritrea issued a 94-page report of its findings to the UN’s Human Rights Council. The Commission was mandated last year by the UN’s Human Rights Council (Resolution A/HRC/29/L.23) to investigate if the crimes perpetrated by senior officials of the Government of Eritrea, and documented by the Commission in a 500-page report in June of last year, “constitute crimes against humanity” and to report back. The UN said that the investigation should be conducted “with a view to ensuring full accountability”, i.e., name names of individuals. The 32nd session of the HRC is expected to meet between June 13 and July 1 and pro-government and anti-government Eritreans have scheduled demonstrations in Geneva for the 21st and 23rd of June respectively. You can find the new report of the Commission issued on June 8 here. Below is a summary of the report:
1. The Commission of Inquiry is made up of three commissioners: Mike Smith, Chair; Victor Dankwa, Commissioner; and, Sheila B. Keetharuth, Commissioner. The latter is also the Special Rapporteur of human rights in Eritrea and is mandated to prepare separate reports.
2. Despite the fact that the Human Rights Council, which is also in charge of the Universal Periodic Review mechanism, called upon the Government of Eritrea to “cooperate fully”, Eritrea did not grant admission to the Commission. Thus, to get the Government’s side of the story, the Commission had to rely on representations made publicly by government officials in media articles and interviews; replies to HRC; and, representations made by the Director of the Political Office of the ruling party, Yemane Gebreab, in his meeting with the Commission’s Secretariat in March 2016.
3. The Commission was guided by human rights treaties and conventions that Eritrea has ratified.
4. The scope of the investigation was on alleged violations committed by Eritrean authorities throughout Eritrea, between May 1991- present, and only if it is “systematic, widespread and gross violations of human rights.” In this regard, “committed” includes not just acts committed by them or at their instigation but also their failure to prevent, investigate, and prosecute wrong-doers.
5. The Commission decided to protect the anonymity of those providing the testimony because “almost all victims and witnesses who spoke with the Commission feared reprisals by Eritrean authorities, either against themselves or their family members in Eritrea.” Thus, their identity will be protected even from the UN, even “other sections of OHCHR” and even the “International Criminal Court” until such time that trial proceedings begin.
6. The standard of proof used was “reasonable grounds to believe”: a standard used by “other commissions of inquiry, and is also the standard used by the ICC to review evidence prior to the issuance of an arrest warrant.”
7. Regional and international laws used were: the International Covenant on Economic, Social and Cultural Rights (ICESCR); the African Charter on Human and Peoples’ Rights (ACHPR); the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the Convention on the Rights of the Child (CRC) including its two Optional Protocols of 2000; the African Charter on the Rights and Welfare of the Child and the Forced Labour Convention (No. 29) of the International Labour Organization, along with its Abolition of Forced Labour Convention, 1957 (No.105).
8. Eritrea ratified all these conventions, some as early as 1994 and some as late as 2014. Moreover, notwithstanding claims of being on war footing, or in a state of “no war, no peace” a term which, according to the Commission, “has no legal significance,” Eritrea has never sent “a notification of derogation to the Secretary General”; that is, it has never requested exemption or relaxation of standards, due to a state of emergency.
9. Between November 9, 2015, when the Commission sent its notification that it is requesting information/documentation on whether “systematic, widespread and gross violations of human rights in Eritrea” occurred anywhere in Eritrea since 1991, until the submission deadline of January 15, 2016, the Commission received 44,267 submissions via mail and email, mostly in Tigrinya and English. There were also significant submissions in Arabic and German.
10. Of the submissions, only 8 were from Eritrea: of which 3 were from associations and only 5 were from individuals. The rest were from Germany, Saudi Arabia, Sudan, Switzerland, the UK, USA and 32 other countries.
11. “A random number generator was used to select samples from each country proportional to the total number of submissions received from that country. A sample size of 5 percent–or about 2250 letters–was deemed sufficient given that a review of the submissions revealed a fair amount of duplication in content.” From this 2250, “a statistically representative sample of 500 individuals from 16 countries” were chosen and “the Commission contacted by phone each of the individuals chosen by the random sampling.”
12. The overwhelming majority of the respondents were “fervent critics” of the Commissions findings published in the first report (June 2015.) Despite the fact that “next to none of those contacted had actually read the report, and many had been provided with sensationalised information about the Commission’s findings”; and, despite the fact that some explained that they were coerced into signing forms for fear of losing their passports; and, despite the fact that most of the writers visit “Eritrea only occasionally” far from “the walls of detention facilities and in military training camps” and had no personal knowledge of military service and almost none referenced their own experience, the Commission addressed each of their complaints, and non-sequitur, anyway. Here are the questions verbatim, and the response of the Commission, paraphrased:
(a) The Commission of Inquiry has never visited Eritrea, and is only interviewing Eritreans in Ethiopia and Djibouti, enemies of Eritrea. As such, its conclusions are biased and unreliable;
Answer: We were denied entry visas to Eritrea. We interviewed Eritreans in 13 countries, not just Ethiopia and Djibouti.
(b) Economic sanctions imposed by the United Nations are unjustified, sabotage the Eritrean economy, and have a damaging humanitarian impact;
Answer: sanctions occured in 2009; the sanctions are limited to an arms embargo, not an economic one.
(c) There is no rape in Eritrea;
Answer: It is such response that has helped to contribute in “creating an environment of impunity in which such violations lead to further acts of violence against women.” To the extent culture has a role in Eritrea, it is to shame and ostracize victims of rape, resulting in under-reporting of the crime.
(d) The Commission has failed to ensure implementation of the decision of the Eritrea-Ethiopia Boundary Commission (EEBC);
Answer: In our report, we concluded that the “international community and the United Nations bear an ongoing responsibility for…the non-implementation…of the ruling on the demarcation” and “the Commission continues to urge implementation of the EEBC decision.”
(e) Eritrean military conscription is justified by the continuous threat from Ethiopia and the failure of the international community to implement the findings of the EEBC;
Answer: The problem is not national service per se, but that its implementation is “inconsistent with international standards.” Moreover, “none of the authors referred to their own military/national service” because all had left Eritrea before 1991 or shortly thereafter.
(f) There is no discrimination against women; women participated in the struggle for independence, and hold 30 percent of high-level positions;
Answer: We noted women’s participation in the report which you apparently did not read. We also note that the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) had said that the high-level positions “benefit only women sharing the views of the political party in power” and discriminate against women who don’t share the views of the ruling party.
(g) Christians and Muslims live in harmony in Eritrea and there are no religious tensions;
Answer: We don’t dispute this. Our concern is about the persecution of “non authorized religious denominations, and its [the ruling party’s] strict control over all religious expression.”
(h) There is no shoot-to-kill policy at Eritrean borders;
“The writers denying the existence of a shoot-to-kill policy did not explain the basis on which they concluded that such a policy does not exist” but we have reliable evidence, as recently as 2015, that it happens.
(i) Contrary to the situation in other countries, education and health care are free in Eritrea, and Eritrea has made significant progress with respect to Millennium Development Goals;
These “indicators of progress are provided by the Government of Eritrea itself” and “Eritrea does not have the type of independent institutions that would permit verification of data provided by the Government nor does it permit verification by external institutions.”
(j) Eritreans are leaving the country for economic reasons not because they are victims of human rights abuses.
Answer: “Human rights violations are cited as the main motivating factor for departure by the consistently large number of Eritreans fleeing the country, including by the rising number of unaccompanied minors.” Furthermore, there is “no similar exodus from other economically deprived states that are not in a state of armed conflict.”
13. Thus, the thousands of pro-government “submissions do not undermine the findings described in its first report.” Moreover, because in this report the Commission focused on those who had recently left Eritrea, the violations documented in the first report–including rape and torture– persist.
14. In 2015, there were 35,845 Eritrean migrants to Ethiopia of whom a third were women. 12,370 Eritreans migrated to Sudan. This number does not include those who did not register. In June 2015, UNHCR reported that the global number of Eritrean refugees is 444,091. Depending on Eritrea’s population, (reported at 3.2 million by Eritrea’s Ministry of Local Government National Statistics Office in 2010 and 6.7 million by the World Bank), the exodus is as high as 12% of Eritrea’s population.
15. The Commission finds that there is still no constitution in Eritrea, no independent judiciary, no national assembly, nor “other democratic institutions” and thus there has been “no progress in establishing the rule of law.” There is no evidence that the civil and penal codes which have been published are in effect and when the Commission asked the deputy ambassador to the UN, he was unable to answer in the affirmative. Moreover, the codes refer to a constitution and a supreme court that doesn’t exist, and some of their articles are not in conformity with international law including their broad definition of “the crime of treason.”
16. With no rule of law, and no political will to enforce the law, the Commission finds that “Eritrean officials have committed the acts of enslavement, imprisonment, enforced disappearance, torture, reprisals as other inhumane acts, persecution, rape and murder.” These need not be crimes of commission, they can be crimes of omission when “implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack.”
17. In other words, of the eleven (11) crimes that constitute “crimes against humanity”, Eritrean officials, including at the highest level, have committed–and continue to commit–eight (8) of them. The acts are widespread because they are “committed on a large scale and directed against a multiplicity of victims.” Because of the “organised nature of the acts of violence and improbability of their random occurence”, these crimes are also systematic. They are widespread and systematic and purposeful: to “establish, consolidate and maintain total control over the Eritrean population.”
18. With respect to enslavement, the Commission refers to the members of the National Service whom it classifies either as civilians or military who are hors de combat (for the two-year period of conflict with Ethiopia and two-day conflict with Djibouti) and concludes that, for the purposes of the Rome Statute, they are treated as civilians. Enslavement, according to Rome Statute of the ICC, is when “the perpetrator exercised any or all of the powers attaching to the right of ownership…or by imposing on them a similar deprivation of liberty.” The word “slavery” does not have to take the form of “chattel” slavery, or commercial transactions involving persons because “Chambers at four international criminal tribunals have interpreted it more expansively and without dissent.” That is, it is settled law.
19. Further, to support its case that “National Service” has little to do with national security and more to do with crowd control, the Commission refers to a speech given by Yemane Gebreab at the Bruno Kreisky Forum for International Dialogue that : “the challenge for us is to be able to find jobs, skills, training, and business opportunities for [conscripts] when they are released.”
20. The Commission defined national service as enslavement due to its uncertain legal basis; arbitrary and indefinite duration; its involuntary nature; the forced labor and domestic servitude (for females) conscripts have to endure; restrictions of movement; inhumane conditions; the systematic and widespread torture and killing; coercive measures to deter desertion; prohibition of religious observances; and its extreme impact on family life.
21. The Commission also found that Eritrean officials are responsible “for imprisonment or other severe deprivation of physical liberty.” The Commission says that “arrests and detentions in violation of fundamental rules of international law, have been and remain, central to an Eritrean leadership policy designed not only to discourage dissent but to suppress independent or critical thought, and instill fear in the population.”
22. By way of example, the Commission references President Isaias Afwerki’s response to a Swedish journalist question on the future of journalist Dawit Isaac: “We don’t release. We don’t take to trial. We have our own ways to deal with him and others like him. We have our own ways of dealing with that.” It also references Yemane Gebreab who, when asked about the G-15 said, and continues to say, “we have decided to handle the issue of the 15… as a national issue. We have decided to go at it in a very different way.”
23. The Commission concluded the “our own ways” and “very different way” are not only at variance with conventions Eritrea is a party to, but constitute “crimes against humanity.”
24. The Commission also found that “Eritrean officials have committed the crime of Enforced Disappearance, a crime against humanity, in a large-scale and methodical manner since May 1991.”
25. These enforced disappearances, which have been ongoing since May 1991, are inhumane not only on those who have disappeared but their family members, particularly women who are made extremely vulnerable.
26. The Commission accuses Eritrean officials of being responsible for widespread and systematic torture. This is perhaps the hardest-to-read section of the report; but it is also the most well-documented and corroborated. Torture includes techniques such as helicopter, Otto, Jesus Christ crucifixion, Almaz, Torch, Ferro, Gomma, electric shocks, mock drowning, mock burials and executions, sexual torture and extensive exposure to the scorching sun.
27. As with enforced disappearance, the Commission finds that torture extends not just to victims but their loved ones: “the Commission heard evidence from such family members whose severe mental pain or suffering is nearly impossible to convey.” This, according to the Commission, “rises to the level of torture as a crime against humanity under customary international law.”
28. The Commission also finds that the reprisals the government inflicts on Eritreans for alleged crimes of family members constitute a crime against humanity. This includes the arrest of an “87 year old woman who was detained because her son had fled the country.”
29. As for the crime of persecution, the Commission concludes that “Eritrean officials have and still continue to deprive Eritrean “Pentes”, and some Muslims, of fundamental rights contrary to international law on religious grounds.” This, coupled with denial of “Eritrean Kunama and Afar of fundamental rights”, constitutes “a crime against humanity, in a large-scale and routine manner since May 1991.”
30. The Commission “documented many instances of rape, repeated rape, and gang rape committed by military officials and trainers as well as by detention officials against a significant number of women and a few men” and, given its “widespread and systematic” nature, it constitutes a crime against humanity.
31. The Commission finds Eritrean officials guilty of murder “by committing extrajudicial killings, and by subjecting Eritrean citizens to abysmal conditions of detention and military/national service in which death is a foreseeable consequence.” And since these were committed in a “methodical manner since May 1991” and they persist, they constitute a crime against humanity.
32. As to who is responsible, the Commission notes that “political power in Eritrea is concentrated in the hands of the President and of a small and amorphous circle of military and political loyalists.” Therefore, “the Commission has reasonable grounds to believe that the National Security Office is responsible for most cases of arbitrary arrest, enforced disappearance and torture in official and unofficial detention centers” and given that Eritrea is highly militarized, “military and security personnel are disproportionately represented within the President’s inner circle.”
33. With that in mind, the Commission has “compiled files on a number of individuals it has reasonable grounds to believe bear responsibility for the crimes it has documented.” Furthermore, liability “may be attached not only to those who commit crimes directly but also to individuals who plan, order or instigate them” including when committed by subordinates and superiors fail to take action.
34. Since Eritrea did not ratify the Rome Statute, the International Criminal Court may be involved only if the “Security Council were to refer the situation in Eritrea to the Court.” Given the absence of law in Eritrea, the Commission rules out a hybrid tribunal or truth/reconciliation body but suggests a regional body could be constituted.
35. The Commission concludes with a list of recommendations to the Government of Eritrea, the Human Rights Council, Office of the UN High Commission for Human Rights, the UN General Assembly, the UN Security Council, the African Union, the Members States and international organizations, and Transnational Corporations. The report includes a map of Eritrea dotted with 77 prisons identified by victims who provided it with testimonies.