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What the UN COIE Gets Wrong About Rights in Eritrea

Bronwyn Bruton, Atlantic Council


A UN panel’s expected conclusion that crimes against humanity are being committed in Eritrea would be legally indefensible because of the flawed methodology in the compilation of the report and would further erode the credibility of the International Criminal Court (ICC) in Africa, said the Atlantic Council’s Bronwyn Bruton.


By Ashish Kumar Sen | AtlanticCouncil

A UN panel’s expected conclusion that crimes against humanity are being committed in Eritrea would be legally indefensible because of the flawed methodology in the compilation of the report and would further erode the credibility of the International Criminal Court (ICC) in Africa, said the Atlantic Council’s Bronwyn Bruton.

The UN’s Commission of Inquiry on Eritrea (COIE) will present its findings on June 8. “Based on my interactions with the Commission, I do expect the COIE to recommend that the government of Eritrea be referred to the ICC for crimes against humanity, despite the weakness of the evidence,” said Bruton, deputy director of the Council’s Africa Center. [Update: The COIE said "widespread" human rights abuses have been committed in Eritrea and should be referred to the International Criminal Court as crimes against humanity.].

The report will likely name Isaias Afwerki, who has served as Eritrea’s president since the country won independence in 1991 after a three-decade-long war with Ethiopia, as well as generals and senior-ranking politicians in the country, she added.

The United Nations Human Rights Council established the Commission in 2014 to investigate human rights abuses in Eritrea. A year later, the Commission issued a scathing report saying the Eritrean government’s systematic use of extrajudicial killing, torture, rape, indefinite national service, and forced labor may amount to crimes against humanity.

“The [People’s Front for Democracy and Justice], the ruling and only party in Eritrea, has held on to power by progressively dismantling or refraining from implementing reforms aimed at establishing democracy and rule of law in the country,” the report concluded. Public freedoms have been eroded, a rule of fear has been established, and opposition is not tolerated, it added.

Based on its findings, the COIE’s mandate was renewed for another year in July of 2015, and the team was charged with determining whether crimes against humanity have taken place in Eritrea.

Eritrea’s government, which prevented members of the Commission from visiting the country, has rejected the report and argued that the creation of the COIE violates international law by unfairly singling out Eritrea for scrutiny. From the Eritrean government’s point of view, engaging with the Commission would lend legitimacy to a process that is unlawful and politically motivated, said Bruton.

“I am critical of Eritrea for not engaging more with the Commission of Inquiry because I have visited Eritrea many times and I believe that if the Commission had been allowed into the country, they would have had a very different impression of what is happening there,” said Bruton.

The Eritrean government has cooperated with the UN’s Universal Periodic Review—a human rights review that all countries are subjected to—and has recently permitted a separate team of officials from the UN’s Office of the High Commissioner for Human Rights to visit Eritrea to examine the human rights conditions in the country.

A flood of refugees

The Commission has said indefinite military conscription, which it compared to slavery, was in part to blame for the state of human rights in Eritrea. Thousands of Eritreans flee the country every month. In fact, in the first six months of 2015, Eritreans were the second-largest number of migrants (after Syrians and on par with Afghans) to flee to Europe, according to the United Nations High Commissioner for Refugees.

“There has been a lot of talk about how Eritrea, a nation of 3.5 million people, loses 60,000 people a year to migration, which must be proof in itself that terrible human rights abuses are taking place there,” said Bruton.

“However, Puerto Rico is also a territory of 3.5 million people, and it loses around 50,000 people a year because of the economic crisis it faces. The mere fact that 60,000 people are leaving Eritrea isn’t necessarily proof of a massive human rights crisis. Puerto Rican migration is of course facilitated by access to the United States; but Eritreans have also, until extremely recently, been granted automatic asylum rights in Europe. There are push and pull factors at play.”

“The costs of migration are high; but so too are the rewards for those who can gain residence in the rich countries of Europe,” she added.

Many Eritreans who flee their homeland undertake hazardous journeys through Libya, Egypt’s tumultuous Sinai Peninsula, and across the Mediterranean in their desire to reach Europe. Many fall prey to human traffickers who imprison them, deny them food and water, subject them to torture, and demand ransoms from their families. A disproportionately large number of Eritreans have perished attempting to cross the Mediterranean Sea.

The European Union, which is grappling with a historic influx of migrants, in March struck a controversial deal to send to Turkey Syrian migrants who fled across the Aegean Sea to Europe. The Guardian reported this week that the EU is also planning to work with the governments of Sudan and Eritrea to stem the flow of migrants from both the African nations.

“The idea of simply shoveling refugees back to Eritrea where they don’t have economic prospects and face an uncertain political future is problematic, and could in fact be destabilizing to Eritrea, which has—counter to the claims of the COIE—actively promoted migration over the years, both as a source of remittances and as a kind of pressure release valve, an alternative to those who are most frustrated with the regime,” said Bruton.

“It is far preferable for the European Union to seek to engage with Eritrea to promote development and to improve standards of living in the country,” she noted.

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Bronwyn Bruton spoke in an interview with the New Atlanticist’s Ashish Kumar Sen. Here are excerpts from the interview.

Q: In 2015, a United Nations Commission of Inquiry on Human Rights in Eritrea found that the Eritrean government has committed “systemic, widespread, and gross human rights violations.” The COIE’s new report will be released on June 8. Do you expect the report to conclude that crimes against humanity have been committed?

Bruton: Based on my interactions with the Commission, I do expect the COIE to recommend that the government of Eritrea be referred to the ICC for crimes against humanity, despite the weakness of the evidence. In particular, the charges of forced labor would be very hard to substantiate and bring to trial. When you think of forced labor in Africa you tend to think of people chained underground in diamond mines, not extended military service or office work, which is typically the case in Eritrea.

I also feel deeply worried about the impact that Eritrea’s referral to the International Criminal Court would have in Africa, where there is already a backlash against Western human rights mechanisms, and in particular a strong push within the African Union—not by pariah states but by strong Western allies like Ethiopia, South Africa, Uganda, and Kenya—to withdraw the continent’s nations en masse from the Rome Statute.

Q: Why is that?

Bruton: There are complaints from the African nations that the ICC has disproportionately—in fact more or less exclusively—targeted African leaders for human rights abuses while giving other continents a pass. There’s an impression that these prosecutions are politically motivated, neo-colonial, or even overtly racist. I fear that the COIE’s referral of Eritrea on charges of crimes against humanity will simply inflame tensions against the ICC, because it does appear to be politically motivated. Why, for example, is Eritrea being targeted by a Commission of Inquiry, when Ethiopia and South Sudan are guilty of similar or worse human rights abuses?

There are also a lot of problems with the Commission of Inquiry’s research methodology in producing the original report. The Commission refused to consider the academic literature on Eritrea; refused to use press reports; refused to speak with experts who’d traveled recently to the country; refused to speak to UN staff and Western diplomats inside the country; and refused to consider the testimony of many thousands of Eritreans who supported the government. They spoke only to refugees who self-identified as having suffered violations of their rights, and because Sudan and Djibouti refused (like Eritrea) to host the COIE, the team was only able to do field research in Ethiopia, which is effectively at war with Eritrea. Obviously, this is shockingly poor scholarship—if a college undergrad tried to ignore all academic scholarship and spoke only to people who agreed with him, he’d get flunked out of school. But this methodology might nevertheless send Eritrea to the ICC. And it has, not surprisingly, provoked a strong sense of outrage among many Eritreans, and I think it will add to this narrative in Africa that the ICC, and Western human rights organizations more broadly, are unjust institutions.

The COIE has spent the second year of its mandate trying to address some of its methodological flaws by speaking to a few experts and a handful of “pro-government” diaspora, but my honest sense is those efforts are too little, too late. I testified before the COIE in March 2016, and was told that the Commission was uninterested in visiting Eritrea because its conclusions were already drawn.

The primary problem with the Commission’s original report is that it failed, in my opinion, to prove that systemic human rights abuses were taking place. The COIE has produced a laundry list of human rights violations that have taken place in the twenty-five years since Eritrea’s independence—but as Western diplomats in Eritrea have privately pointed out, you could examine any country in East Africa and come up with a list of human rights abuses that is four or five or six hundred pages long. The COIE’s report didn’t indicate clearly when most of those abuses had taken place—yesterday or a decade ago?—and also didn’t convincingly demonstrate that the abuses were systemic and ordered by the government, instead of being bad behavior by individual, war-traumatized people in an impoverished country. And I don’t believe that the ICC could meet that burden either, which raises the specter of another failed prosecution, along the lines of the Kenya debacle. I don’t think that the ICC’s mandate in Africa could survive that. So, frankly, I feel strongly that human rights defenders should be wary of pushing the Human Rights Council or the ICC in that direction.

I am critical of Eritrea for not engaging more with the Commission of Inquiry because I have visited Eritrea many times and I believe that if the Commission had been allowed into the country, they would have had a very different impression of what is happening there.

I have made five trips to Eritrea in roughly the past year and have had a good opportunity to observe the country at close hand. Some veteran Horn of Africa reporters—Mary Harper of the BBC and Colette Braekman of Le Soir—have also visited Eritrea very recently and reported positively on the situation there. In particular, and in spite of the COIE’s assertion that diaspora members who return to Eritrea face arbitrary imprisonment and torture, they report that Asmara is flooded by thousands of returnees who have come back to celebrate independence. They have spoken freely, and on camera, with dozens of Eritreans about the political situation in the country, despite the COIE’s assertion that Eritreans exist in a climate of fear without the ability to speak their minds.

I do believe that terrible human rights abuses take place in Eritrea, as they occur throughout the Horn of Africa. There is an urgent need for improvement in human rights and democracy in that country, and I certainly believe that government officials have been cavalier about addressing human rights abuses in the military and in the National Service program. But I do not believe that the human rights situation described in the Commission of Inquiry’s report is reflective of the reality on the ground. The COIE’s claim that Eritrea maintains a “shoot to kill” policy on the border is an especially egregious example—I’ve never heard of any meaningful evidence that would support that claim, except perhaps in a few, highly militarized spaces along the border, where Eritrea is actively in conflict with its neighbors. But even there, the evidence seems thin.

Q: Do you expect the Commission to name names?

Bruton: Yes. Eritrea has been governed by a single person—Isaias Afwerki—since and even before independence. If there is a case to be made that crimes against humanity are occurring, and again I dispute whether that is appropriate, then I would expect the COIE to name Afwerki, and possibly a number of generals and senior-ranking politicians in the country.

Q: Why has the government been reluctant to give the Commission access?

Bruton: Eritrea has been a victim of a number of politically-motivated efforts to undermine the government. That includes sanctions that were put on Eritrea in 2010 for supporting al-Shabaab, which have dragged on for years despite an utter lack of evidence that Eritrea has continued to support the group after providing it with some early, opportunistic support. The fact that the Security Council’s sanctions have been maintained for so many years despite an utter lack of any evidence of Eritrean wrongdoing has created a (not wholly unjustified) conviction in Asmara that these UN mechanisms are created to punish Eritrea, not to independently pursue the truth. The government’s perspective is, roughly, that the Monitoring Group and the COIE are not about terrorism, or about human rights, but are out to punish Eritrea for being in a situation of no-peace-no-war with Ethiopia, which has illegally occupied Eritrean territory since 2002, and the international community is taking Ethiopia’s side because Ethiopia is larger and because it supports US counterterror concerns. So, from their point of view, engaging with the Commission would simply lend legitimacy to a process that is inherently biased against them.

Q: Did the Eritrean government take any measures to improve the human rights situation following the 2015 report?

Bruton: Eritrea has consistently cooperated with the Universal Periodic Review, which is different from the Commission of Inquiry. It is a UN body, but the difference is the Universal Periodic Review is something that all countries submit to, and since Asmara doesn’t feel unjustly targeted by the UPR’s requirements, it has largely cooperated. It is important to emphasize that because we are often given the impression that Eritrea never cooperates with human rights research or human rights groups. The UN’s Office of the High Commissioner for Human Rights has also recently visited and gained access to a prison. These are small steps in the right direction, but important to recognize, because they suggest that if human rights activists were to take a different, less combative approach, they might be able to work constructively with Asmara to improve the rights situation in the country.

Q: Has the Eritrean government been given a chance to present its side to the Commission?

Bruton: The government has not attempted to work with the COIE, for the reasons I’ve described above. But one of Asmara’s major complaints against the Commission is its refusal to allow pro-government members of the Eritrean diaspora to give testimony. I understand that there have been thousands and thousands of such requests from North America alone. Perhaps because of the volume of these requests, the Commission has not spoken to many of these people. On the other hand, they have spoken to hundreds of people who have offered testimony of human rights abuse. So the criticism of the Commission is that they have taken an entirely one-sided point of view. Again, on that point, Eritrea itself is more than partially to blame. But I also think that the COIE could and should have done much more to address these accusations of bias.

Q: Eritreans make up one of the largest groups of refugees fleeing to Europe. What are your thoughts on the EU plan to reportedly work with the governments of Sudan and Eritrea to stem the flow of these migrants?

Bruton: I believe that the key to improving the situation of human rights in Eritrea is engagement with the current regime to promote development and democratic governance. It will simply be impossible to reform Eritrea’s controversial National Service Program, which the COIE has described as forced labor, without improving the economy. Simply releasing those people to joblessness would cause insecurity, and of course the country would completely cease functioning, since National Service workers staff all of the schools and government offices.

The EU should be working with Eritrea to promote development on Eritrea’s terms. This may not be entirely palatable to European nations, but there is no alternative. There is no viable opposition in Eritrea, and continually adding stress to the current regime in Asmara, for example through sanctions and indictments, is likely to simply make Eritreans more miserable without producing any real change.

There has been a lot of talk about how Eritrea, a nation of 3.5 million people, loses 60,000 people a year to migration, which must be proof in itself that terrible human rights abuses are taking place there.

However, Puerto Rico is also a territory of 3.5 million people, and it loses 80,000 people a year because of the economic crisis it faces. The mere fact that 60,000 people are leaving Eritrea isn’t necessarily proof of a massive human rights crisis. Puerto Rican migration is of course facilitated by access to the United States; but Eritreans have also, until extremely recently, been granted automatic asylum rights in Europe. There are push and pull factors at play.

The costs of migration are high; but so too are the rewards for those who can gain residence in the rich countries of Europe.

When it comes to the treatment of Eritrean refugees in the future, my view is that repatriating them arbitrarily is problematic. It is false to say that people from the diaspora don’t regularly go back to Eritrea; they do. Thousands of wealthy diasporans were just back for the twenty-fifth independence celebrations, which I witnessed first-hand.

Nevertheless, the idea of simply shoveling refugees back to Eritrea where they don’t have economic prospects and face an uncertain political future is problematic, and could in fact be destabilizing to Eritrea, which has—counter to the claims of the COIE—actively promoted migration over the years, both as a source of remittances and as a kind of pressure release valve, an alternative to those who are most frustrated with the regime.

It is far preferable for the European Union to seek to engage with Eritrea to promote development and to improve standards of living in the country.

I am hopeful that the situation in Eritrea will improve. But I also think that a good outcome depends on more constructive efforts by the EU and the United States to improve the economy in Eritrea and to repair the country’s sense of isolation and grievance. Look, I can certainly understand that people in European and American statehouses hate the idea of making nice to President Isaias. But it’s not about him—it’s about the 3.5 million people living in Eritrea with him. They deserve better, and the naming and shaming approach simply isn’t going to help them.

Ashish Kumar Sen is deputy director, editorial, at the Atlantic Council. You can follow him on Twitter @AshishSen.
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