Statement by Sheila B. Keetharuth, Special Rapporteur on the situation of human rights in Eritrea at the Seventy-second session of the General Assembly, Item 69 (a & b)

Statement by Sheila B. Keetharuth, Special Rapporteur on the situation of human rights in Eritrea at the Seventy-second session of the General Assembly, Item 69 (a & b)

26 October 2017

Honourable Chairperson,
Distinguished Delegates,
Ladies and Gentlemen,

I address you as the Special Rapporteur on the situation of human rights in Eritrea and am honoured to brief you for the fifth time in this capacity.

The Human Rights Council extended my mandate for one year in resolution 35/35, adopted without a vote, and requested me to follow up, as appropriate, on the implementation of the recommendations of the Commission of Inquiry on Human Rights in Eritrea (COIE) in its report (A/HRC/32/47) and those in my own report (A/HRC/35/39). What I plan to do is to focus on a selected number of issues and while doing so, update this august gathering on key human rights developments in Eritrea.

From the time I addressed the Human Rights Council last June, I have continued monitoring specific human rights in Eritrea. I would like to take this opportunity to congratulate Eritrea for being one of the two countries in Africa which have completed the critical costing phase of their pandemic preparedness and response plans in health security, according to a recently released report by the International Working Group on Financing Preparedness .

I also welcome that in July 2017, the World Heritage Committee inscribed the Eritrean capital, Asmara, to the World Heritage List. It is the first entry for Eritrea.

However, on the key human rights violations, namely death in custody, extrajudicial executions, arbitrary detention, breaches of the rights to freedom of expression and religion, among others, I have received further information indicating that these have not stopped. I will provide more details below.

Allow me to also point out that there is no change in the duration of the national service, which remains indefinite, beyond the eighteen months provided for by the laws of Eritrea. The country still has no constitution that would provide for constitutional protection for fundamental human rights, no independent judiciary, no legislative assembly, in fact no institutions that could ensure checks and balances, as well as invaluable protection against the misuse of power by the state.

Accountability for past human rights violations

First, I would like to deal with accountability for past human rights violations. The Commission of Inquiry on human rights in Eritrea (COIE) called on the Government of Eritrea to ensure accountability for past and persistent human rights violations, amounting to crimes against humanity. These include enslavement, imprisonment, enforced disappearance, torture, and other inhumane acts, persecution, rape and murder. The COIE recommended the establishment of independent, impartial and gender-sensitive mechanisms to provide victims with adequate redress, including the right to truth and reparations.
I am not aware that Eritrea has proceeded with the required far-reaching and substantial institutional and legal reforms required before the domestic legal system can hold perpetrators of international crimes to account in a fair and transparent manner. Above all, I remain particularly concerned at the failure of the Eritrean Government to put in place measures to ensure accountability of military personnel for sexual and gender-based violence during national service, extensively documented by the COIE.

Impunity is symptomatic of a lack of rule of law, which undermines accountability. Additionally, impunity makes perpetrators bolder in the commission of further human rights violations. Therefore, directly addressing a culture of impunity is the most important action required as a guarantee for non-recurrence.

Another avenue for tackling impunity recommended by the Commission of Inquiry was the call on Member States to exercise jurisdiction over crimes against humanity when any alleged offender is present on their respective territories, or extradite him or her to another State in accordance with its international obligations. Given the long-term perspective required for Eritrea to tackle impunity or for the other recommendations made by the Commission, such as a Security Council's referral to the International Criminal Court or the setting up of an accountability mechanism under the aegis of the African Union, it is essential to explore alternative approaches such as universal jurisdiction, to ensure accountability for human rights violations where such violations amount to crimes against humanity.

There are accountability mechanisms that can be used to secure justice for victims of international crimes at the domestic level in certain countries, offering a more immediate relief and realistic options to access justice for victims. During 2017, I embarked on a round of talks aimed at exploring the available options under universal jurisdiction. Universal jurisdiction provides the ability to the judicial system of any state to try persons for crimes committed outside its territory which are not linked to the state by the nationality of the suspect or the victims or by harm to the state's own national interests.

Various countries have adopted laws that permit domestic courts to exercise universal jurisdiction, including for those crimes identified by the Commission of Inquiry, irrespective of the nationality of the victim or the perpetrator, or the location of the crime. According to a 2012 study, a total of 163 states could exercise universal jurisdiction over one or more crimes under international law, either as such crimes or as ordinary crimes under national law. Those countries that have included crimes against humanity or torture as crimes in their national laws and provided for universal jurisdiction over such crimes could exercise jurisdiction over Eritreans suspected of having committed such crimes. Such proceedings would be consistent with the principles set out in the preamble of the Rome Statute of the International Criminal Court which, inter alia, recalls "that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes".

The significance of universal jurisdiction for victims' search for justice is on the rise. In 2016, 13 countries opened 47 cases based on the principle of universal jurisdiction, 7 more than the previous year, and 10 more than in 2014. One of the landmark cases in 2016 was the conviction of the former Chadian dictator Hissène Habré by a special court in Senegal for crimes against humanity, war crimes and torture, including rape and sexual slavery. A coalition of victims and civil society organisations created the conditions for a successful prosecution under the principle of universal jurisdiction. The case is an encouragement for all victims of crimes against humanity that they can drive the struggle against impunity and efforts to bring the perpetrators to justice, no matter how high-ranking they may be.

The effective use of universal jurisdiction will largely depend on the availability of the necessary structures, capacities and resources required for ensuring accountability for international crimes. Given the experience of the Commission of Inquiry and the Special Rapporteur, it seems unlikely that the Government of Eritrea would provide investigators and prosecutors access to Eritrea to gather evidence, or agree to extradite suspects to third countries. In similar situations, civil society organisations have contributed by collecting documentation about serious human rights violations, which may serve as evidence both for current domestic trials, as well as for future investigations at the international level. I would like to stress, however, that questions have been raised in investigations at the domestic level as to whether documents collected by civil society actors would be allowed as evidence. These issues need to be carefully considered ahead of any such initiatives. There are other significant challenges, such as the immunity of serving government officials, and the limited travel outside Eritrea of suspected perpetrators.

I would also like to recall that at the end of its mandate, the information compiled by the Commission of Inquiry has been transferred to the United Nations High Commissioner for Human Rights who may grant access to information for purposes of accountability where confidentiality and protection concerns have been addressed.

Efforts to initiate and pursue universal jurisdiction cases are likely to be unsuccessful without the required political will, both at the domestic, as well as at the international level. Civil society actors, in close collaboration with survivors, victims and victims' organisations, can play an important role to create and maintain such political will, as was the situation in the Hissène Habré case. I plan to concentrate on raising awareness about the available accountability mechanisms at the domestic level, while focusing on the role of victims in such processes.

SELECTED HUMAN RIGHTS VIOLATIONS

Extra-judicial executions and shoot to kill at the border

Military involvement in the extrajudicial executions of unarmed Eritreans attempting to cross the border either individually or in groups has surfaced at regular intervals. This is a military practice committed with impunity, without any investigations, with no explanations provided for the deaths. While the Eritrean authorities have vehemently disputed that a shoot-to-kill policy at the border exists, repeated allegations and documented cases show that several people, including children, have been killed while attempting to cross the border.

It is very explicitly stated that governments have the obligation to 'prohibit orders from superior officers or public authorities authorizing or inciting other persons to carry out any such extra-legal, arbitrary or summary executions'. Additionally, [a]ll persons shall have the right and the duty to defy such orders'. It is also important for these provisions to be emphasized during the training of law enforcement officials . I appeal to the Eritrean authorities to stop shooting people attempting to cross the border.

Arrest and detention

Deprivation of liberty is subject to a list of conditions which should be strictly observed. Sometimes, even if detention is lawful initially, it becomes arbitrary and in breach of the law if it is not subjected to periodic review. Since the time I addressed the Human Rights Council earlier this year in June, I have continued receiving communications about arrests and detention in the capital city, Asmara. The modus operandi remains the same: (i) people arrested and detained are not told why their physical liberty is being infringed, (ii) they are not taken before a court of law to determine the legality of their detention; (iii) they have no contact with the outside world, not even with lawyers or their close family members, who can only bring food and clean clothes for them, handed over to prison guards; (iv) there is no information at all provided on specific cases; and (v) there is no indication whether and when they will be released.

What is seriously lacking in Eritrea is the political will to deal with arrests and detention in conformity with international human rights law, which ensures guarantees of due process and fair trial before a court of law, without undue delay. In effect, arrest and detention are used to punish, intimidate, create an atmosphere of fear, or to 'disappear' those who are deemed dangerous because they do not toe the line. I call on the Government of Eritrea to stop its long-standing practice of arbitrary detentions and to make international human rights norms central in the treatment of prisoners. I join the European Parliament in its latest call on Eritrea to immediately and unconditionally release all prisoners of conscience, notably Dawit Isaak and the other journalists detained since September 2001, and the Patriarch of the Eritrean Orthodox Church, Abune Antonios. I also support the European Parliament's demand that the Eritrean Government provide detailed information on the fate and whereabouts of all those deprived of physical liberty.

Death in custody and indefinite imprisonment

States have a high level of responsibility in protecting the rights of detainees. When a person dies while in the custody of a state, there is a presumption that the state is responsible. The state is under the obligation to prevent death and respond to the cause of any death by, for example, providing adequate health care.

Honourable Chairperson
Distinguished Delegates,
Ladies and Gentlemen,

Allow me pause here and solicit your thoughts about the moving story of an Eritrean freedom fighter arrested in 2003. For 14 years, he was held without charges, without access by a lawyer or any family member, and without official confirmation to his loved ones that he was being detained. For 14 years, the family had no information about him; questions remained unanswered about the causes of his detention and even his state of health. Through informal means the family got to know where he was held. This summer, the prison authorities arrived at his family home, notified members of his family about his sudden death in detention and handed over his corpse. Notwithstanding the grief and sorrow, the family treasured the fact that they were at least allowed to bury the body. I fail to understand how the handing over of the dead body of someone who has been held in one of Eritrea's prisons without any contact with the outside world for 14 years exonerates the Eritrean authorities from the human rights violations they have blatantly committed. In addition, I am unable to see how anyone could view such action as a commitment for increasing respect of human rights in the country. Just for a second, imagine the trauma this family has lived through for fourteen years. Impunity cannot be allowed to prevail yet once again. Justice is needed and the cry for justice must be answered.

Indefinite imprisonment without charge or trial until death, which in effect amounts to a life sentence without the pronouncement of a court of law, is absolutely unacceptable in any country where the rule of law prevails. The above-described case is but one of the many examples in Eritrea. Therefore, member states respectful of the rule of law and the international community need to ask the Eritrean authorities where they have kept the G-15, the imprisoned journalists, Ambassador Ali Omaro, the Djiboutian prisoners of war, all subjected to incommunicado detention, indefinite with no term limit, contrary to Article 9 of the International Covenant on Civil and Political Rights, of which Eritrea is a signatory. The reason provided by the Eritrean authorities, i.e. national security, in no way provides a justification for their indefinite imprisonment, because temporary derogations from Article 9 are only provided in very strict circumstances, and for a limited period as per Article 4 of the Covenant. I hereby call once more on the Eritrean authorities to clarify their fate and to release them unconditionally with immediate effect.

Freedom of religion or belief

The right to profess one's religion freely, to change it or to practice either alone or in community with others in public or in private is enshrined in international law. Eritrea officially recognizes only four religions: the Evangelical Church of Eritrea, the Orthodox Church of Eritrea, the Roman Catholic Church, and Sunni Islam. Over the past five years, I have regularly heard that the Government of Eritrea interferes in the internal matters of recognized religions through controls and invasive policies, including the lack of provisions for exemption from military service for conscientious objection. Autonomy of religious communities to manage their internal affairs is the epitome of religious freedom. On the other hand, interference and limiting the number of religions to four is a breach of the right to religious freedom or belief, given that official registration status with the government is no guarantee that freedom of religion or belief is fully respected.

The followers of unrecognized religious denominations, such as the Jehovah's Witnesses, and Evangelical and Pentecostal Churches, among others, face draconian restrictions and are persecuted, and denied administrative services, such as the issuance of national identity cards, as this would require denouncing their religion on the application form. Denial of an appropriate recognition and legal status does not allow members of unrecognised religions to possibility to act as a collective, such as worship or assemble, acquiring property for the construction of places of worship, recruiting professional clergy, establishing and maintaining denominational schools, and other charitable or humanitarian institutions and to establish and maintain communications with individuals and communities at the national and international levels .

Such a situation of non-recognition in fact forces worshippers of unrecognised religious communities to congregate in hiding to maintain a sense of religious and community identity, forcing them in an unsafe situation when they get together for prayer, exposing them to arrest and detention and even death in custody.

Reports of arrest and detention targeting individuals for their religious beliefs have reached me on a regular basis. This includes followers of both recognised and non-recognised religious denominations. I have also learned recently of the arbitrary arrest and detention of Muslims during prayer meetings

In August, a mother of four died in detention in a desert camp, allegedly after having been arrested three months earlier during raids directed at Evangelical Christians. Similar arrests during raids targeting prayer meetings and house to house searches were reported for the months of July and August in and around Asmara.

Ladies and Gentlemen,

I am concerned about the well-being of the Patriarch of the Eritrean Orthodox Church, Abune Antonios, in light of his old age and health problems. In July, he was seen for the first time in public since his house arrest more than 10 years ago. Reportedly, he was surrounded by guards when he appeared during a mass at St Mary's Cathedral in Asmara. I call on the Government will allow him to return to his position before it is too late.

His case is only one example of the Government's disrespect for religious freedom. I call on the Government of Eritrea to allow all religious entities to worship freely while ensuring that the rights of persons belonging to religious or belief minorities are understood consistently from a human rights perspective, protected in conjunction with all human rights, building on the principles of universality, freedom and equality.

Protection of refugees and non-refoulement

Once again, I want to draw your attention to the situation of Eritreans who see no other alternative than to leave their home country in search of a place where their rights will be respected. Eritreans have crossed the borders into neighbouring countries to seek refuge. Countless numbers of people have crossed the desert and the sea to reach 'safe havens'.

According to last week's update by IOM, the organisation is relocating an average of about 100 persons per day which represents an increase in what has been the most continual refugee flow into Ethiopia in 2017. According to official figures, there were 21,215 new Eritrean refugee arrivals to Ethiopia in 2016 while over 20,000 have arrived in 2017 to date. Most of the refugees are youth with 46 per cent of the total transported by IOM aged between 18-24 years old. Many of them report walking for days to reach Ethiopia.

Eritreans have also been trafficked for economic reasons, extortions and sexual exploitation among others. All this creates situations of vulnerability, especially for women and unaccompanied children, thus putting them in need of urgent psycho-social support.

In the 2016 New York Declaration for Refugees and Migrants, Member States committed to fully protect the safety, dignity and human rights and fundamental freedoms of all migrants, regardless of their migratory status, at all times. However, there are valid concerns that the rights of those seeking refuge outside Eritrea are not fully protected.

Measures are being put in place by various countries aimed at reducing the number of Eritrean asylum seekers and refugees. These include erecting fences, establishing documents criminalizing search and rescue activities of those who attempt to rescue the lives of people at sea, stopping vessels carrying rescued migrants from docking at European ports, investigating people for alleged support to Eritrean refugees, paying refugees to move on 'voluntarily' to third countries, making deals with third countries to stop migrants from entering, and revising asylum policies and practices aimed at limiting access to protection. At best, such efforts will lead to a 'temporary respite', reducing arrival figures for a short while, but they will not be able to stop people from crossing deserts and seas in search of 'safe havens' as no barrier will be insurmountable for someone fleeing human rights violations.

I appeal to members of the international community not to turn their backs on Eritrean refugees for short term political gains in response to populist electoral demands or promises, which can translate into actual restrictions, harassments and human rights violations. The international community needs to restore the rights and dignity of Eritrean refugees by closing human rights protection gaps in national refugee policies. Refugee policies should be human rights-based.

Right to property

Both the Commission of Inquiry on Human Rights in Eritrea and I have addressed violations of the right to property. In this context, I have noted with concern that the Greek Community in Asmara has been asked to evacuate its building complex, which includes the premises of the Honorary Consulate of Greece as well the offices of the Greek Community. The Greek community has been in possession of this building complex for decades and this latest example of the infringement of the right to property in Eritrea should be redressed.

Taking stock: Different phases of the mandate on the situation of human rights in Eritrea and current direction

Since the Human Rights Council established the country mandate on the situation of human rights in Eritrea in 2012, I have used the initial two years following my appointment to develop the mandate, devoting considerable time and effort to building bridges with the Government of Eritrea and reaching out to the authorities. While this initial phase of the mandate charted the way forward, building relations with the Eritreans has been inconclusive, mostly because of their refusal to address the whole array of human rights, civil and political, as well as economic, social and cultural. The Government of Eritrea has consistently used the economic and social rights discourse and their selective achievements in this field in international fora when challenged on all the components of its human rights record.

Eritrea should understand it cannot rely on its selective achievements in the field of economic and social rights to detract from its dismal record in civil and political rights such as the right to accountability and redress for human rights violations, the right to be protected from extra-judicial executions, the prohibition of which is central in international human rights law, the right to liberty of the person, freedom of religion or belief, among others. International human rights law does not provide a choice between building schools, hospitals, roads and dams and addressing prison conditions or having the legality of one's detention examined promptly by an independent judiciary. Human rights are not privileges, which state authorities grant at their discretion.

The initial phase of the mandate was followed by a period during which I ensured that the mandate of the Special Rapporteur remained strong and relevant while the Commission of Inquiry was operational. I am now in the final stage of the mandate, during which I intend to devote resources to the fight against impunity, working with a broad spectrum of stakeholders, including victims, survivors, family members, human rights defenders and lawyers in their search for justice and accountability for human rights violations. My efforts will also focus on ensuring a smooth transfer to my successor.

Improvement in the human rights situation

Over the last five years as the country mandate holder, I have made several recommendations addressing different human rights in Eritrea. The Commission of Inquiry on Human Rights in Eritrea has done the same. All these recommendations still stand today. I therefore call on the Eritrean authorities to implement these recommendations, which will go a long way in improving the human rights situation in Eritrea and of Eritreans in the diaspora, including asylum-seekers.

I am aware that the Office of the High Commissioner for Human Rights (OHCHR) is currently undertaking a mission to Eritrea for a workshop on human rights and the administration of justice to reinforce the capacity of rule of law professionals. I hope that this will strengthen implementation at the domestic level. I welcome the fact that the international attention to the human rights situation in Eritrea has also allowed for renewed engagement by the Government with international actors. I hope that the cooperation with OHCHR will develop into a real partnership leading to tangible change of the situation on the ground.

I would like to end with a set of specific areas that may assist Member States and more broadly the international community in assessing positive changes in the human rights situation in Eritrea. In the months and years to come, the Government will need to show its genuine commitment and serious determination to achieve progress on a number of areas by taking concrete steps as outlined below. The following aspects and elements are based on the recommendations the country mandate and the Commission of Inquiry addressed to the Government of Eritrea and may serve to develop specific, time-bound benchmarks to assess substantive change. What is required at this point are reliable and validated means of measuring progress, including through credible disaggregated data. Progress should also be measured in terms of how fundamental rights and freedoms are being protected, through robust and participatory monitoring.

The Government of Eritrea will need to demonstrate which steps it has taken to:

(a) Establish without delay an independent, impartial and transparent judiciary, and ensure access to justice for all;
(b) Allow for the creation of political parties, and hold free, fair and transparent democratic elections at all levels;
(c) Permit human rights defenders and independent civil society organisations, including gender-specific organisations, to operate without constraints or interference;
(d) Discontinue indefinite military/national service by limiting it to 18 months for all current and future conscripts, as stipulated by the 1995 Proclamation on National Service;
(e) Put an immediate end to torture and ill-treatment, sexual violence and the enslavement of conscripts;
(f) Cease the practice of using conscripts, detainees and members of the peoples' militia and reserve army as forced labour;
(g) Put an end to the practice of arrests and detention carried out without legal basis, and release immediately and unconditionally all those unlawfully and arbitrarily detained;
(h) Provide information on the fate and whereabouts of all those deprived of physical liberty;
(i) Provide immediately information on all prisoners of war, and release them promptly;
(j) Allow legal representatives and family members immediate access to detainees;
(k) Allow independent monitoring of all places of detention with regard to both legality and conditions of detention;
(l) Immediately permit unhindered access by independent monitors, including the Office of the United Nations High Commissioner for Human Rights and other recognised organisations, to all places of detention, official and unofficial, to monitor the legality of detentions and the treatment of detainees and prison conditions; allow them to conduct regular and unannounced visits, and act promptly on their recommendations;
(m) Put an immediate end to the use of torture and other forms of ill-treatment, establish adequate complaints mechanisms and ensure that prompt and effective investigations are conducted into all allegations of torture and ill-treatment with a view to bringing perpetrators to justice;
(n) Put an end to discrimination on religious or ethnic grounds;
(o) Prohibit the assignment of women and girls to officials' quarters for forced domestic servitude, and implement a zero-tolerance policy for sexual abuse in the army and in detention centres.

Concluding remarks

While all of the above are equally important, there is an urgent need for Eritrea to prioritize the following, all of which require in-depth and urgent reforms:

- putting in place/strengthening institutions to reinforce rule of law;

- a transparent human rights assessment of the functioning of the justice system, the results of which should be made available publicly;

- an assessment of the independence of judges, lawyers and prosecutors;

- unwavering respect for human rights in accordance with its obligations, backed by accurate data, promoting transparency so as to reveal the raw facts which will provide the basis for improvements;

- fight against institutionalized impunity.

I therefore urge the Eritrean Government to ensure the full application of international human rights norms while avoiding any reprisals against those who express their views and opinions or advocate on issues which the Government may deem controversial. My plea to the Government of Eritrea is to create an environment where all Eritreans can enjoy and exercise all their human rights fully in a non-discriminatory manner. I would like to reiterate to the Eritrean authorities that I remain available, as always, for an open and sincere dialogue on these and other human right matters.

Honourable Chairperson,
Distinguished Delegates,
Ladies and Gentlemen,

I thank you very much for your attention and look forward to a vibrant interactive dialogue on the human rights situation in Eritrea with you.

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1./ International Working Group on Financing Preparedness, From panic and neglect to investing in health Security: financing preparedness at a national level, May 2017, last accessed on 29 September 2017 from http://documents.worldbank.org/curated/en/979591495652724770/pdf/115271-REVISED-PUBLIC-IWG-Report-Conference-Edition-8-10-2017-low-res.pdf . See page 24 'As of April 21, 2017, three countries - Tanzania, Pakistan and Eritrea - have completed the costing exercise as part of the post-JEE preparedness planning.'

2./ See paragraph 3 of the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, Recommended by Economic and Social Council resolution 1989/65 of 24 May 1989, last accessed on 29 September 2017 from http://www.ohchr.org/Documents/ProfessionalInterest/executions.pdf.

3./ European Parliament resolution of 6 July 2017 on Eritrea, notably the cases of Abune Antonios and Dawit Isaak (2017/2755(RSP)).

4./ Article 18, International Covenant on Civil and Political Rights.

5./ Article 6, 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief, last accessed on 29 September 2017 from http://www.ohchr.org/Documents/ProfessionalInterest/religion.pdf.