Report of the Special Rapporteur on the situation of human rights in Eritrea

VIII. Conclusions and recommendations

A. Conclusions

75. The Government of Eritrea has demonstrated an ongoing unwillingness to implement its obligations and commitments it has undertaken in ratifying both regional and international human rights instruments.

76. In the context of a military/national service, marked by the indefinite nature of the conscription and a harsh life in the army, which does not respect the human rights of conscripts, urgent reforms are required. Eritrea’s judicial system, including its Special Court charged with adjudicating complex cases, is inadequate to prosecute international crimes. There are still no strong institutions established according to the rule of law that could effectively protect the human rights of the Eritrean people. The Government’s ongoing denial of the existence of sexual exploitation and violence in the army is a denial of women’s rights and needs to be urgently reversed. The Special Rapporteur believes that ignoring the call for justice and accountability by Eritrean survivors and victims of human rights violations will have devastating consequences and perpetuate the cycle of never-ending impunity.

B. Recommendations

77. The Special Rapporteur notes that the Government of Eritrea has, up to now, ignored the bulk of the recommendations that she has made in her previous reports, having addressed only two of them, namely the ratification of the Convention against Torture and seeking technical assistance from the Office of the High Commissioner for Human Rights. All recommendations of the Commission of Inquiry have to date remained unheeded. The Special Rapporteur therefore reiterates her own recommendations, as well as those of the Commission of Inquiry.

1. Government of Eritrea

78. The Special Rapporteur recommends that the Government of Eritrea:

(a) Share substantive information about the concrete efforts it has undertaken to put an immediate end to the crimes against humanity and human rights violations identified by the country mandate and the Commission of Inquiry;

(b) Release immediately and unconditionally all those unlawfully and arbitrarily detained, including members of the G-15, journalists and members of religious groups;

(c) Immediately allow independent media, and civil society organisations to operate freely without constraints and interference;

(d) Investigate allegations of rape and sexual violence in the

military/national service and secondary institutions such as Sawa promptly and prosecute perpetrators immediately;

(e) Set up a task force on sexual and gender based violence in the army to address past and ongoing violations;

(f) Adopt protocols to prevent further occurrences while providing support for victims;

(g) Take concrete steps to ensure a truly participatory process in preparation for Eritrea’s next review under the Universal Periodic Review to ensure it will adequately reflect the diverse voices of civil societyorganisations involved in the protection of human rights in Eritrea.

2. Member States and international organisations

79. The Special Rapporteur recommends that Member States and international organisations:

(a) Ensure accountability for those responsible for serious human rights violations in Eritrea, including by means of referral by the Security Council of the situation in the country to the International Criminal Court, in line with the findings and recommendations of the Commission of Inquiry on human rights in Eritrea that there are reasonable grounds to believe that crimes against humanity have been committed;

(b) Exercise jurisdiction over crimes against humanity when any alleged offender is present on the territory of a Member State or extradite him or her to another State in accordance with its international obligations;

(c) Provide Eritrean nationals seeking protection with refugee status in accordance with the provisions of the international law governing asylum, and in particular the Convention relating to the Status of Refugees, respect the principle of non-refoulement and end bilateral and other arrangements that jeopardize the lives of those who seek asylum;

(d) Keep Eritrea under close scrutiny until consistent and tangible progress with regard to the situation of human rights is evident, and ensure the centrality of human rights in all engagement with Eritrea;

(e) Cooperate closely with Eritrean human rights defenders and civil society organisations to ensure that human rights remain at the core of all engagement with the country, while also bearing in mind the findings of the Commission of Inquiry.

3. African Union

80. The Special Rapporteur reiterates the recommendation of the Commission of Inquiry regarding the setting up of an appropriate accountability mechanism under the aegis of the African Union to hold perpetrators of crimes against humanity in Eritrea accountable to secure justice and truth.

4. Civil Society Organisations

81. The Special Rapporteur recommends that civil society organisations:

(a) Set up and support networks among victims of crimes against humanity and other human rights violations, human rights defenders and their partners at regional and global levels;

(b) Build skills and seek ways and means to consolidate capacity to continue their monitoring, documenting and reporting in the field of human rights, as well as drive the fight against impunity in their quest for justice.

* * The present report was submitted after the deadline in order to reflect the most recent developments.

1 ^ Eritrea-Ethiopia Boundary Commission, Decision regarding Delimitation of the Border between the State of Eritrea and the Federal Democratic Republic of Ethiopia, 13 April 2002, and Determinations of 7 November 2002, Determination para. 3.

2 ^ See Report of the commission of inquiry on human rights in Eritrea, A/HRC/32/47, para. 134; and for example, the recent declaration by the EU of 13 April 2017, available at http://www.consilium.europa.eu/en/press/press-releases/2017/04/13-declaration-hr-eritrea-ethiopis-boundary-commission/.

3 ^ Report on Eritrea of the Monitoring Group on Somalia and Eritrea, S/2016/920, 31 October 2016, p.4.

4 ^ S/RES/2317 (2016).

5 ^ Final report to the Security Council by the Panel of Experts established pursuant to resolution 1874 (2009), S/2017/150, 27 February 2017.

6 ^ See notice by the State Department on 03/30/2017available at https://www.federalregister.gov/documents/2017/03/30/2017-06225/imposition-of-nonproliferation-measures-against-foreign-persons-including-a-ban-on-us-government.

7 ^ British Columbia Supreme Court, Araya v. Nevsun Resources Ltd., 2016 BCSC 1856.

8 ^ Jehovah’s Witnesses, Press release, 30 January 2017, available at https://www.jw.org/en/news/legal/by-region/eritrea/eritrean-witness-dies-20170130/.

9 ^ Only four religious denominations are recognized, namely, Eritrean Orthodox, Roman Catholic, Evangelical Lutheran and Sunni Islam.

10 ^ Information by Jehovah’s Witnesses available at jehohttps://www.jw.org/en/news/legal/by-region/eritrea/jehovahs-witnesses-in-prison/.

11 ^ Médecins Sans Frontières, Dying to Reach Europe: Eritreans in search of safety, 2017, p.11.

12 ^ Food and Agriculture Organization of the United Nations (FAO), Global Information and Early Warning System on Food and Agriculture, Eritrea, 23 November 2016, available at http://www.fao.org/giews/countrybrief/country.jsp?code=ERI

13 ^ FAO, “Countries requiring external assistance for food”, updated on March 2017, available at www.fao.org/giews/country-analysis/external-assistance/en/

14 ^ The negative impact of the drought caused mainly by El Niño for Eritrea was also highlighted by the Government of the Netherlands in February 2017, see https://www.government.nl/latest/news/2017/02/18/government-prevent-famine-in-the-horn-of-africa

15 ^ UNICEF’s 2017 appeal ‘Humanitarian Action for Children’, available at https://www.unicef.org/appeals/files/2017_Eritrea_HAC(3).pdf

16 ^ UNICEF’s 2017 appeal ‘Humanitarian Action for Children’, available at https://www.unicef.org/appeals/eritrea.html

17 ^ See for example Famine Early Warning Systems Network, at https://www.fews.net/; the International Food Policy Research Institute noted that for Eritrea, a 2016 Global Hunger Index score could not be calculated for Eritrea because data for all underlying indicators were not available, available at http://www.ifpri.org/topic/global-hunger-index.

18 ^ UNHCR, Refugees & Migrants Sea Arrivals In Europe, Monthly Data Update: December 2016, available at https://data2.unhcr.org/en/documents/details/53447; the top four countries are Syrian Arab Republic, Afghanistan, Nigeria and Iraq.

19 ^ UNHCR report released on 27 February 2017, see http://www.unhcr.org/news/press/2017/2/58b458654/refugees-migrants-face-heightened-risks-trying-reach-europe-unhcr-report.html.

20 ^ IOM press release, IOM Provides Transport, Access to Aid for Eritrean Refugees in Ethiopia, 14 March 2017, available at http://www.iom.int/news/iom-provides-transport-access-aid-eritrean-refugees-ethiopia

21 ^ See Italy UNHCR Update #13, March 2017, available at https://data2.unhcr.org/en/documents/download/56622.

22 ^ See “Detained and dehumanised”, Report on human rights abuses against migrants in Libya by the United Nations Support Mission in Libya and the Office of the United Nations High Commissioner for Human Rights, 13 December 2016.

23 ^ See Reuters article, Dozens of Eritrean and Nigerian former Islamic State captives freed in Libya, 5 April 2017, available at http://www.reuters.com/article/us-europe-migrants-libya-women-idUSKBN1772NS.

24 ^ See UNHCR Press Release, UNHCR campaign spreads awareness about dangers of Yemen sea crossings, 7 February 2017, available at http://www.unhcr.org/news/press/2017/2/5899ccae13/unhcr-campaign-spreads-awareness-dangers-yemen-sea-crossings.html

25 ^ See Save the Children, Young Invisible Enslaved: The child victims at the heart of trafficking and exploitation in Italy, November 2016, p. 22ff.

26 ^ Ibid.

27 ^ UNICEF, A child is a child - Protecting children on the move from violence, abuse and exploitation, May 2017, p. 14, available at https://www.unicef.org/publications/files/UNICEF_A_child_is_a_child_May_2017_EN.pdf

28 ^ Committee on the Rights of the Child, General Comment No. 6 on Treatment of Unaccompanied and Separated Children Outside their Country of Origin (2005), , para. 12-13.

29 ^ UNICEF, A child is a child, p. 8.

30 ^ Eurostat, see http://ec.europa.eu/eurostat/statistics-explained/index.php/File:First_instance_decisions_in_the_EU-28_by_outcome,_selected_citizenships,_2nd_quarter_2016.png

31 ^ European Asylum Support Office, Country of Origin Information Report on Eritrea: National service and illegal exit, November 2016.

32 ^ Swiss State Secretariat for Migration (SEM), Division Analysis, Focus Eritrea Volksarmee ("Volksmiliz"), 31 January 2017.

33 ^ United Kingdom, Upper Tribunal (Immigration and Asylum Chamber), CG [2016] UKUT 00443 (IAC).

34 ^ Switzerland, Bundesverwaltungsgericht/Tribunal administratif federal, D-7898/2015.

35 ^ Security Council Resolution 2023 (2011), para. 11.

36 ^ At the time of writing this report, Dawit Isaak has been held in detention for more than 15 years.

37 ^ International Law Commission, Preliminary report of the Special Rapporteur on the obligation to extradite or prosecute, A/CN.4/571, 7 June 2006, para. 31; with reference to Amnesty International, Universal Jurisdiction: The Duty of States to Enact and Implement Legislation, 2012, chap. 1, pp. 11–12.

38 ^ Amnesty International, Universal Jurisdiction: The Duty of States to Enact and Implement Legislation, 2012, chap. 1, p. 2.

39 ^ TRIAL, Make way for Justice #3, Universal Jurisdiction Annual Review 2017.

40 ^ For a detailed documentation see Reed Brody, Victims bring a Dictator to Justice - The Case of Hissène Habré, 2017.

41 ^ African Union Model National Law on Universal Jurisdiction over International Crimes, Doc EX CL/731 (XXI) c, available at http://www.un.org/en/ga/sixth/71/universal_jurisdiction/african_union_e.pdf. The issue of universal jurisdiction has also been discussed in the context of the relationship between the AU and the EU, see Report by the AU-EU Technical Ad hoc Expert Group on the Principle of Universal Jurisdiction, 16 April 2009, 8672/1/09 REV 1, available at http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%208672%202009%20REV%201.

42 ^ See AU Model Law (EX.CL/731 (XXI) c) section 1.

43 ^ See AU Model Law (EX.CL/731 (XXI) c) section 3.