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Ahead of the 38^th regular session of the UN Human Rights Council (hereafter “the Council” or “the UN HRC”), DefendDefenders and a large group of national, regional and international civil society orga­ni­sations urged member and observer states of the Council to support and co-sponsor a reso­lution that accu­rately reflects the gravity of the human rights situation in Eritrea, extends the mandate of the UN Spe­cial Rapporteur, and sets out a framework for need­ed reforms to improve the human rights situation in the country and ad­vance accountability.

The present paper elaborates on this letter and outlines some of the options for the current and the next Spe­cial Rapporteur on the situation of human rights in Eritrea, focusing on ways to advance accounta­bility for the crimes under international law and violations of human rights, some of which may amount to cri­mes against huma­nity, that have been and continue to be committed in the country.

Developments on the ground ^[1]

In June 2016, the Commission of Inquiry (CoI) on Eritrea established by the Council in its resolution 26/24^[2] presented its findings and recommendations.^[3] Since the Council last took action on the human rights situation in Eritrea, at its 35^th regular session (June 2017),^[4] the systematic, widespread and gross viola­tions documented over the years by its mechanisms, including the Special Rappor­teur (SR) on the situation of human rights in Eritrea and the CoI, some of which may amount to cri­mes against huma­nity,^[5] have continued unabated. As the SR has highlighted, the Government has shown no willing­ness to start addressing them. In light of its findings, the CoI urged a refer­ral of the Eritrean situ­ation to the Inter­national Cri­minal Court (ICC).^[6]

As the abovementioned NGO letter highlights, at the last UN HRC session, during an enhanced interactive dialogue on Eri­trea, Deputy UN High Commissioner for Human Rights Kate Gilmore noted that: “In 2016, the Commission of Inquiry on Eritrea found reasonable grounds to believe that crimes against hu­manity, na­mely, enslavement, imprisonment, enforced disappearance, torture, other inhumane acts, per­secution, rape and murder, had been committed since 1991. The Commission noted that despite the Sta­te’s in­crea­sed engagement with the international community, there was no evidence of progress in the field of human rights. I regret to report that this state of affairs remains unchanged.”^[7]

In her most recent statement to the Council, the SR on Eritrea, Sheila B. Keetha­ruth, similarly detailed violations per­tain­ing to the right to life, including deaths in custody for which responsibility “falls squa­rely on Government authorities,” the right to liberty and security of the person, freedom from arbitrary arrest and detention, freedoms of expression, assembly and association, and freedom of religion or belief, inc­lu­­ding the harass­ment, mis­treatment, torture and detention of members of unrecognised reli­gions.^[8]

These continuing violations present a systematic character, meaning, in the words of the SR, that “they cannot be the result of random or isolated acts by the autho­rities” and that they occur in a country ruled “not by law, but by fear.”^[9]

Following up on findings on Eritrea

DefendDefenders believes that the gravity, scale, and nature of the ongoing violations call for justice. Victims, including those who live inside the country and those who have fled it, deserve redress.

As domestic avenues for such red­ress are non-existent within Eritrea,^[10] the international community must continue to act with a view to ending the gene­ra­lised impu­nity that prevails in the coun­try. In this con­text, it is essential for the Council, the SR, and the Office of the High Commis­sioner for Human Rights (OHCHR) to keep advancing accountability, in line with calls for the opera­tiona­li­sation and im­plementation of the recommendations made to Eritrea, including to develop “specific and time-bound benchmarks” to assess sub­stan­tive change.^[11]

In this regard, the Special Rapporteur could, taking into account existing international law and pre­vailing state prac­tices with regard to accountability:

• Co­mpile a list of recommendations made by UN human rights bodies and mechanisms to Eri­trea in relation to torture and other cruel, in­human or degrading treatment or punishment, in­c­lu­ding in de­tention; enfor­ced or involuntary disappearances; and enslavement, including hu­man rights vio­la­tions committed in relation to in­definite national service; and
• Detail options and recom­men­dations to seek accountability for human rights violations in Eri­trea, including through practical mechanisms to secure truth and justice for the victims of hu­man rights viola­tions and abuses.

This move would not be resour­ce-intensive, as it would not require the establishment of a new, ad hoc mecha­nism. The SR would draw upon the recommendations that the current mandate holder and the CoI, as well as other UN bodies and mechanisms, including special procedures and treaty bodies, have made in relation to Eritrea, and upon in-house OHCHR expertise on accountability, justice, reparation, and gua­ran­tees of non-recurrence.

The SR^[12] could detail options and recommendations for accountability, including:

1. At the domestic level (that is to say: in other states, through the use of national, territorial and/or universal jurisdiction (i) over cases involving perpetrators or victims holding dual nationality, (ii) over perpetrators fin­ding them­selves on the territory of states that are willing to exercise jurisdiction, and/or (iii) on the basis on uni­­versal jurisdiction, over cases involving any Eritrean national);
2. At the regional le­vel, including through African Union mechanisms; and
3. Through in­ter­national mecha­nisms, including the ICC.

The SR could also detail the legal and institutional frame­work needed to ad­vance accountability at these va­rious levels.

Additionally, the Council could use a two-step strategy and invite the mandate holder, once s/he asses­ses that the Eritrean Government has taken mini­mal measures of engagement and cooperation on issues relevant to the human rights situation in Eritrea, to identify benchmarks for progress and to develop a time-bound action plan for the implementation of these bench­marks.

A long-term strategy regarding accountability necessitates paying close attention to the overall context, including in relation to civic space. The mandate holder’s work on follow-up to the findings of UN HRC mechanisms does not preclude ongoing work on addressing systemic issues relating to, inter alia, free­dom of opinion and expression, freedom of peaceful assembly and association, and freedom of religion or belief in the country, which are systemic. Holding those who are responsible for violations and abu­ses accountable and addressing systemic issues, including in relation to civic space, go hand in hand.

Importance of the Special Rapporteur’s mandate

The SR’s mandate remains an indispensable mechanism to advance the protection and promotion of hu­man rights in Eritrea. The mandate holder continues to fulfil an invaluable role by mo­ni­toring the dire situation in the country, shining a light on violations, providing a crucial platform to help amplify the voices of victims, and offering Eritreans an opportunity to find long-lasting solutions for the respect of their human rights.

A dedicated and holistic country-specific special procedure under the Council’s agenda item 4 provides a number of advantages which the Council should continue to provide itself with:

• Institutionalisation: The human rights situation in Eritrea should continue to be inscribed on the Coun­cil’s agenda and discussed regularly, ensuring sustained attention to it, documentation of, and inves­ti­gation into, cases and patterns of violations, monitoring of human rights developments in the coun­try, public reporting and debates, and follow-up to previous Council action.
• Protection: A special procedure, despite the Government’s refusal to grant the mandate holder access to the country, provides protection to victims of violations, those who are or may be at risk, and Eri­trean citizens, both inside and outside the country, through examining individual commu­nications and alle­ga­tion letters, sending communications and urgent appeals to the Government, gathering infor­ma­tion and testimonies, including through information and communication technology means and meet­ings in coun­tries where Eritrean nationals have sought refuge.
• Expertise: The Council should continue to receive analyses and recommendations formulated by a country-specific expert, including with regard to human rights reform, including priority areas, the iden­tification of legal and practical obstacles to such reform, and immediate steps to be taken to bring Eri­trea’s legal framework, policies and practices in line with its legal obligations.
• Engagement: A country-specific special procedure is in a position to enhance dialogue with a range of national, regional and international stakeholders and to provide technical assistance and capacity-building to the governments of all States concerned, including those whose legal systems may be invol­ved in accountability efforts and whose prosecutorial services may exercise jurisdiction over Eritrea-related ca­ses, as well as with civil society.
•  Visibility: A Special Rapporteur is able to disseminate country-specific information, analyses and recommendations, to enhance the visibility of UN work regarding Eritrea, to voice concerns from a hu­man rights perspective, and to make sure that human rights issues are central to any international dis­cuss­ion on Eritrea. This includes reminding States that refugee outflows are intimately linked to human rights violations committed in the country where asylum-seekers come from.

No change in the Eritrean Government’s behaviour

Since Eritrea was first considered by the Human Rights Council, the Government of Eritrea has refused to cooperate with the mechanisms the Council set up, including the Special Rapporteur and the CoI. At the March 2018 enhanced interactive dialogue, Eritrea was not present to take the floor as the concer­ned country, which amounts to a de facto boycott of a debate on its own human rights situation.

This was not an isolated incident. Since it started to be subjected to the Council’s attention, the Eritrean Government has consistently refused to cooperate with UN HRC mechanisms, rejecting “baseless allega­tions” made against it and referring to the CoI as “ignorant” and motivated by “a sinister politi­cal agenda.” The Eritrean representative also called the CoI’s first report “a travesty of justice.”^[13]

Its cooperation with other international bodies, mechanisms or agencies has been extremely selective. Eritrea invited OHCHR for a short-term mission, but has denied special procedures access to the coun­try (see below). In February 2018, for the first time, the Government submitted a periodic report to the African Commission on Human and Peoples’ Rights (62^nd ordinary session (Nouakchott, Mau­ri­ta­nia, 25 April-9 May 2018)).^[14] The report included neither government acknowledgement of international expert findings with regard to the country’s human rights situation nor indication that the Government was rea­dy to change its course of action, address systemic human rights issues, and hold perpetrators of vio­la­tions and abu­ses accountable. The Government delegation present in Nouakchott was unable to sub­stantively address any of the approximately 70 questions raised by African Union Commissioners.

But Eritrea did not content itself with failing to cooperate with the Council and the mechanisms it set up. It has also deliberately attacked, defamed and threatened human rights defenders, civil society orga­ni­sations and independent UN experts, including the SR and members of the CoI. In June 2015, as mem­bers of the CoI travelled to Geneva to present their initial findings, they were follo­wed by pro-government protesters. As the CoI’s Chairperson put it: “We had the opportu­nity to experience, in a token way, [a campaign of intimidation] in Geneva, where we were followed in the streets and in our ho­tels and vilified in blogs on line where the words of our report have been twisted and misquoted.” He added: “Of course this is trivial compared to the day to day experience of people in Eritrea itself, but it is indicative of a determination on the part of the authorities to control anyone they perceive as a cri­tic.”^[15] The incident, during which members of the Commission were physically intimidated, triggered a firm response from the President of the Council, Mr. Joachim Rücker, who denounced “various threats and acts of intimidation [carried out] in their hotel and in the streets since their arrival in Geneva.” Police had to guard all three members of the Commission.^[16]

In 2017, Eritrea’s Ambassador referred to Ms. Keetharuth as a “naked Empress with no clothes” and ac­cu­sed her of acting like a “Viceroy over Eritrea,” and carrying out a witch-hunt.^[17]

Since then, although the narrative that representatives of the Eritrean Government have used has evol­ved (from the denunciation of “plots” and “lies” to claims about positive change on the ground), the Government has chosen to walk out of the Human Rights Council plenary room. Nothing indicates that it intends to meaningfully cooperate with the Council and its mechanisms, including the country-spe­cific Special Rapporteur, and to allow them full, unfettered access to its territory.

At the time of writing, pending visit requests by UN special procedures included requests from the Spe­cial Rapporteurs on torture and other cruel, inhuman or degrading treatment or punishment (request in 2005; reminders in 2007 and 2010); freedom of religion or belief (request in 2004; reminders in 2005 and 2006); extrajudicial, summary or arbitrary executions (request in 2010); the right to food (request in 2003); and freedom of opinion and expression (request in 2003; reminders in 2005 and 2015).

*   *   *

The Human Rights Council is at a critical juncture with regard to its response to Eritrea’s abys­mal hu­man rights situ­ation. At its 38^th session, the Council should make sure that it builds upon the work that the SR, the CoI, OHCHR and itself have carried out over the years, including by making sure that all relevant stakeholders are re­minded of the nature and legal qualification (i.e., crimes against huma­ni­ty) of the violations committed, of the prevailing impunity, and of the ab­sen­ce of any positive change on the ground. It should continue to consider Eritrea under its agen­da item 4, which is dedicated to situ­ations of gross human rights violations.

While rationalising and streamlining its resolutions on Eritrea, it should seek to extend the man­date of the SR and advance accountability by keeping the latter at the centre of its concerns.

The SR could additionally contribute to accountability efforts by (i) compiling a list of recom­men­da­tions made by UN human rights bodies and mechanisms to Eri­trea in relation to crimes under inter­national law and violations of human rights and fundamental freedoms; and (ii) detailing op­tions and recom­men­dations to seek accountability for human rights violations in Eri­trea, inclu­ding through prac­tical mechanisms to secure truth and justice for the victims of hu­man rights vio­la­tions and abuses.

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[1] For more analysis, see www.defenddefenders.org/country/eritrea/; www.hrw.org/africa/eritrea; www.amnesty.org/en/countries/africa/eritrea/; monitor.civicus.org/country/eritrea/; and www.article19.org/resources/eritrea-nation-silenced/

[2] ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/26/24

[3] www.ohchr.org/EN/HRBodies/HRC/CoIEritrea/Pages/2016ReportCoIEritrea.aspx  The CoI’s detailed findings are available at: www.ohchr.org/Documents/HRBodies/HRCouncil/CoIEritrea/A_HRC_32_CRP.1_read-only.pdf

[4] ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/35/35

[5] www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20067&LangID=E

[6] www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20779&LangID=E

[7] The meeting summary can be found at: www.bit.ly/2Fc69BX

[8] www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22821&LangID=E

[9] www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16055&LangID=E

[10] Avenues for redress and accountability in Eritrea are non-existent, as the authorities have proven unwilling to bring perpetrators of violations to justice and to provide victims with reparation, justice, and guarantees of non-recurrence.

[11] ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/35/39, para. 61.

[12] The current mandate holder will complete her second, and final, three-year term in October 2018. A new mandate holder will be appointed at the 39^th session of the UN Human Rights Council and start his/her work in October 2018.

[13] www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16136&LangID=E; www.reuters.com/article/us-eritrea-un/police-in-geneva-guard-u-n-investigators-into-eritreas-human-rights-after-threats-idUSKBN0P427S20150624

[14] www.achpr.org/states/eritrea/

[15] www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16731&LangID=E

[16] www.reuters.com/article/us-eritrea-un/police-in-geneva-guard-u-n-investigators-into-eritreas-human-rights-after-threats-idUSKBN0P427S20150624

[17] www.africanews.com/2017/11/24/eritrea-burundi-slammed-for-threatening-un-human-rights-experts/