Commission of Inquiry and Special Rapporteur on Eritrea: Mandates Extended

Mike Smith, the Commission's Chair UN Photo / Jean-Marc Ferré — Mike Smith, the Commission’s Chair
Credit: UN Photo / Jean-Marc Ferré

On June 4, 2015, the United Nations Commission of Inquiry on Human Rights in Eritrea (Commission) issued a report containing findings of “systematic, widespread, and gross human rights violations” that might rise to the level of crimes against humanity committed by the State of Eritrea. [OHCHR Press Release: UN Inquiry] See UN Human Rights Council, Report of the Commission of Inquiry on human rights in Eritrea, A/HRC/29/43 (2015). The report, which was presented to the Human Rights Council at its 29^th Session in Geneva, documents a myriad of violations including pervasive surveillance, extrajudicial killings, restrictions on the freedom of expression, a “completely deficient” justice system, prolonged and arbitrary detention, widespread use of torture, forced labor, and sexual violence, which result in a climate in which “it is not law that rules Eritreans – but fear.” [OHCHR Press Release: UN Inquiry]

Following the release of the report, on July 2, 2015, the Human Rights Council passed a resolution extending the mandate of the Commission as well as of the UN Special Rapporteur on the situation of human rights in Eritrea for one year. See UN Human Rights Council, Resolution on human rights situations that require the Council’s attention, A/HRC/29/L.23 (2015).

Commission Mandate and Commissioners

The Commission, which was established through a resolution in July 2014, was mandated to investigate the human rights violations that the UN Special Rapporteur on the situation of human rights in Eritrea had addressed in her previous reports on Eritrea. See UN Human Rights Council Resolution 26/24, Situation of human rights in Eritrea, A/HRC/RES/26/24, 14 July 2014. The Commission focused on the time period from Eritrean independence in 1993 until the present. It was made up of three members: Victor Dankwa (Ghana), Sheila B. Keetharuth (Mauritius), the UN Special Rapporteur on the situation of human rights in Eritrea, and Mike Smith (Australia), the chairperson of the Commission.

Methodology

The Human Rights Council had requested that the Eritrean government cooperate with the Commission, including by providing unrestricted access to visits and by providing information. However, the government did not respond to this request. The Commission therefore conducted its work by interviewing more than 550 witnesses (100 of whom were women) living outside of Eritrea (in, for example, Djibouti, Ethiopia, Germany, Sweden, and the United States); reviewing 160 written testimonies; and holding meetings with UN agencies and nongovernmental organizations. The Commission noted that one of its key challenges was that witnesses were afraid to provide testimony because they believed they were being monitored by authorities in Eritrea and that they or their family members would be targeted and endangered. The Commission therefore put into place measures to protect witnesses. See UN Human Rights Council, Report of the Commission of Inquiry on human rights in Eritrea, A/HRC/29/43 (2015), at 3-4.

Conclusions

The Commission testified before the Human Rights Council at its 29^th Session in Geneva. The Commission found that Eritrea has violated rights in the following areas:

Privacy: the Eritrean government uses various tools, including harassment and intimidation, to spy on and engage in surveillance activities. These practices extend beyond national security or crime prevention needs. As a result, Eritreans self-censor, out of fear that any information that is collected could result in arbitrary arrest, detention, torture, disappearance, or death. The report includes the experience of one witness who says: “When I am in Eritrea, I feel that I cannot even think because I am afraid that people can read my thoughts and I am scared.” See id. at 6.
Freedom of movement: the State also inhibits free movement, both for those traveling within the country and those attempting to leave (approximately 5,000 people flee Eritrea each month). Those who are forced to return to Eritrea after leaving are often arrested and detained, and subjected to ill-treatment and torture. See id. at 6-7.
Freedom of expression: the State severely curtails freedom of opinion, expression, assembly, association, and religion. In 2001, following a crackdown that took the form of the killing or disappearance of members of the G-15 reform group, the government has continued to severely punish individuals who express opinions about or ask questions regarding a wide array of topics. Also in 2001, the government closed down independent newspapers and silenced journalists by detaining, torturing, and disappearing them. Since that time, the government continues to control the press and to restrict access to information. Additionally, Eritreans cannot exercise the freedom to assemble and associate; attempts to do so have resulted in arrests, detentions, and extrajudicial executions. See id. at 7-8.
Freedom of religion: the Eritrean government also inhibits and controls religious freedom through restrictions and attacks on religious communities; prohibitions on any religious gatherings aside from the four authorized religious denominations; and arrests, ill-treatment, arbitrary deprivation of citizenship, torture, disappearances, and killings of those attempting to practice their religions. See id. at 8.
Administration of justice: as a result of the fact that Eritrea’s 1997 Constitution was not implemented, that parliament has not met, and that the courts are controlled by the executive, the Commission found that the rule of law effectively does not exist in Eritrea. Common violations with respect to the administration of justice include violations of the right to fair trial and due process. For example, court judgments are usually not made public, and sometimes accused individuals are not even aware that they have been tried or of the length of their sentences. See id. at 8-9.
Arbitrary arrest and detention: the State uses information collected through spying to arbitrarily arrest and detain individuals. These arrests and detentions are made in the absence of formal charges and they cannot be reviewed to determine whether they are lawful. The Commission described the arrests as: “unjust, unpredictable, unreasonable and disproportionate.” Groups that tend to be particularly targeted for arrest include political opponents, journalists, and members of religious communities. See id. at 9.
Enforced disappearances: those individuals who are arrested and detained are victims of the widespread and systematic practice of enforced disappearance, which also entails the violation of the right to life, the right to not be subject to torture, and the right to liberty, among other rights. The Commission found that statistics on the number of enforced disappearances were unavailable, but that the government has been especially likely to target the following groups: political dissidents, journalists, religious leaders, and leaders and members of the Afar ethnic group. See id. at 9.
Arbitrary deprivation of life: the government’s shoot-to-kill policy in border areas is used to prevent individuals from leaving Eritrea. While this policy might have been revised in recent years, the Commission found that people were still being shot in late 2014. Additional examples of the arbitrary deprivation of life include mass killings of members of ethnic groups and extrajudicial executions of ordinary citizens. See id. at 10-11.
Detention: detention in Eritrea is characterized by the absence of judicial review; being held in secret and unofficial facilities, including underground metal containers and caves; incommunicado detention; and harsh conditions, including having to sleep in human waste and solitary confinement. Women in detention face the risk of sexual and gender-based violence. Children have also been detained, and are sometimes kept in the same inhumane conditions as the adults. See id. at 11.
Torture: the ill-treatment that is used against detainees, including in the form of extreme restraint, beatings, and rape, intended to inflict harm, to extract confessions, and to punish and intimidate, constitutes a “deliberate policy” of torture. Furthermore, the Commission found that perpetrators of torture enjoy impunity. See id. at 12.
Right to property: the State’s land reforms disproportionately affect women, as well as the Afar and Kunama minorities, who have been dispossessed of their lands, livelihoods, and culture. Additionally, because the State exclusively owns Eritrea’s land and natural resources, it uses its ownership of lands and resources to punish perceived enemies. See id. at 12.
National service: forcible recruitment of children; sexual violence and torture committed against women and girls in military training camps; and indefinite national service in conditions characterized by arbitrary detention, torture, and forced labor are common practices. See id. at 12-13.
Forced labor: military conscripts are subjected to torture and forced labor that rises to the level of slavery. See id. at 13-14.

Recommendations

The Commission made numerous recommendations to the government of Eritrea regarding the human rights violations it found. These include:

General: implement the Constitution of 1997 and ensure that any amendments are made in a transparent and participatory manner and are consistent with the State’s international human rights obligations; address and ensure accountability for past human rights violations including extrajudicial killings, enforced disappearances, torture, unlawful detention, sexual violence, and forced labor; and put into place an independent and impartial mechanism to investigate these violations and their perpetrators and to provide redress to victims.
Governance and administration of justice: hold free, fair, and transparent elections; ensure that court processes are transparent; and create an independent national human rights institution to monitor and investigate human rights violations.
Enforced disappearances, arbitrary arrest, and detention: end the practice of enforced disappearances and extrajudicial executions, including the shoot-to-kill policy in border areas; release all individuals who are unlawfully and arbitrarily detained; put into place a mechanism to determine the whereabouts of the disappeared; and end the practice of incommunicado detention and close unofficial and secret detention facilities.
Detention conditions: ensure that detention conditions and treatment of prisoners are aligned with international standards, use solitary confinement only in exceptional circumstances, put into place methods to independently oversee detention centers, and allow international monitoring of detention facilities.
Torture and ill-treatment: put an end to the use of torture and other forms of ill-treatment, put into place complaints mechanisms, and investigate allegations of torture and ill-treatment.
Public freedoms: allow freedom of movement both within the country and for those seeking to leave the country, allow for independent media, protect journalists from arbitrary arrest, and end persecution on the basis of religion.
Property: ensure that evictions are only conducted in conformity with international human rights law, stop forcible evictions, and terminate the practice of taking land away from minority ethnic groups without providing compensation.
National service: limit the national service requirement to 18 months; allow for conscientious objection as well as other exceptions, such as on the basis of physical or mental health issues; put into place a military code that prohibits and punishes ill-treatment and harassment of conscripts; create a complaints mechanism where conscripts can bring their allegations of ill-treatment and be provided with redress; and end forced recruitment of children.
Gender equality: strengthen legislation that protects and promotes gender equality; ratify the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa; allow for civil society organizations that work to promote gender equality; investigate and sexual and gender-based violence; and address all forms of violence against women, including domestic violence, as well as sexual and gender-based violence, whether committed by State or non-State actors.

The Commission made numerous recommendations to the international community, including: establish long-term solutions to assist Eritrean refugees and promote regular paths of migration from Eritrea; criminalize human trafficking and smuggling; and prioritize human rights considerations when negotiating with Eritrean officials. See id. at para. 96.

Additional recommendations to the Eritrean government include the following:

Consult with the Office of the High Commissioner for Human Rights (OHCHR) for technical assistance on implementing all the recommendations.
Collaborate with the Special Rapporteur on the situation of human rights in Eritrea, and allow her to visit the country.
Cooperate with other international human rights mechanisms. For example, follow-up on the Universal Periodic Review, implement recommendations made by UN treaty bodies, and submit overdue reports. See id. at 21-23.

Extension of Mandate of Commission and Special Rapporteur

In light of the Commission’s report, the Human Rights Council, on July 2, 2015, passed a resolution extending the mandate of the Commission as well as of the Special Rapporteur on the situation of human rights in Eritrea for one year. See UN Human Rights Council, Resolution on human rights situations that require the Council’s attention, A/HRC/29/L.23 (2015). The resolution also strongly condemned the human rights violations in Eritrea and reiterated many of the Commission’s recommendations to the Eritrean government. See id. at para. 6.

The Commission’s mandate is to continue investigating the “systematic, widespread, and gross” human rights violations in Eritrea, including whether or not these violations amount to crimes against humanity, with the goal of ensuring full accountability for these violations. In its resolution, the Human Rights Council requested that the Commission present an oral update to the General Assembly at its 71^st session, and submit a written report to the Council at its 32^nd session. The Council also urged the Eritrean government and the international community to cooperate with the Special Rapporteur and the Commission. See id. at 4.

Eritrea responded to the new resolution by stating that it “rejected politically motivated mechanisms and prescriptive reports and recommendations of the Commission of Inquiry and the Special Rapporteur on Eritrea.” Eritrea also emphasized its sovereignty and accused the authors of the draft resolution of trying to violate that sovereignty. [OHCHR Press Release: Human Rights Council Extension of Mandate]