32/47 Report of the commission of inquiry on human rights in Eritrea
Document Type: Final Report
Date: 2016 Jun
Session: 32nd Regular Session (2016 Jun)
Agenda Item: Item4: Human rights situations that require the Council’s attention
GE.16-07497(E)
Human Rights Council Thirty-second session
Agenda item 4
Human rights situations that require the Council’s attention
Report of the commission of inquiry on human rights in Eritrea* **
Summary
The Human Rights Council, in its resolution 29/18, extended the mandate of the
commission of inquiry on human rights in Eritrea for one year to investigate systematic,
widespread and gross violations of human rights in Eritrea with a view to ensuring full
accountability, including where these violations may amount to crimes against humanity.
During the period under review, the commission noted no improvement with respect
to the most critical human rights violations in Eritrea documented in its first report
(A/HRC/29/42).
The commission has reasonable grounds to believe that crimes against humanity,
namely, enslavement, imprisonment, enforced disappearance, torture, other inhumane acts,
persecution, rape and murder, have been committed in Eritrea since 1991.
The commission concludes that, without substantial legal and institutional reform,
Eritrea is not in a position to provide accountability for these crimes and violations. It
therefore recommends that the Security Council refer the situation in Eritrea to the
Prosecutor of the International Criminal Court for consideration, and that States Members
of the United Nations exercise their obligation to prosecute or extradite any individual
suspected of international crimes present on their territory.
* For detailed findings of the commission of inquiry, see A/HRC/32/CRP.1. ** The annexes to the present report are reproduced in the language of submission only.
Contents
Page
I. Introduction ...................................................................................................................................... 3
A. Mandate .................................................................................................................................... 3
B. Cooperation with the commission ............................................................................................. 3
C. Methodology ............................................................................................................................. 3
D. Applicable regional and international law ................................................................................ 4
II. Written submissions ......................................................................................................................... 4
III. Recent human rights developments .................................................................................................. 6
A. Introduction ............................................................................................................................... 6
B. Current human rights concerns ................................................................................................. 6
IV. Crimes against humanity .................................................................................................................. 10
A. Introduction ............................................................................................................................... 10
B. Crimes against humanity in Eritrea .......................................................................................... 11
V. Accountability .................................................................................................................................. 16
A. Institutional accountability ........................................................................................................ 16
B. Individual accountability........................................................................................................... 17
C. Accountability mechanisms ...................................................................................................... 17
VI. Conclusion and recommendations .................................................................................................... 18
A. Conclusions ............................................................................................................................... 18
B. Recommendations ..................................................................................................................... 19
Annexes
I. Letter dated 7 December 2015 from the commission of inquiry addressed to the Permanent
Representative of Eritrea to the United Nations ............................................................................... 24
II. Letter dated 24 February 2016 from the commission of inquiry addressed to the Minister
for Foreign Affairs of Eritrea ........................................................................................................... 25
I. Introduction
A. Mandate
1. The commission of inquiry on human rights in Eritrea was initially established for a
period of one year by the Human Rights Council pursuant to its resolution 26/24. In that
resolution, the Council mandated the commission to investigate all alleged violations of
human rights in Eritrea, as outlined in the reports of the Special Rapporteur. The
commission decided to focus the temporal scope of the investigation from 1991, when
Eritrean entities took effective control of Eritrean territory.
2. On 26 September 2014, the President of the Human Rights Council appointed
Mike Smith as chair of the commission and Victor Dankwa as a commissioner. Pursuant to
Council resolution 26/24, the Special Rapporteur on the situation of human rights in Eritrea,
Sheila B. Keetharuth, was also named a member of the commission. The commissioners
serve in a non-remunerated, independent and expert capacity.
3. The commission presented its report to the Human Rights Council (A/HRC/29/42)
at its twenty-ninth session.1 The Council subsequently adopted, without a vote, resolution
29/18, in which it extended the mandate of the commission for one year, in order to
investigate systematic, widespread and gross violations of human rights in Eritrea with a
view to ensuring full accountability, including where these violations may amount to crimes
against humanity.
B. Cooperation with the commission
4. The Human Rights Council, in its resolution 29/18, reiterated its call upon the
Government of Eritrea to cooperate fully with the commission of inquiry. Like during the
first mandate of the commission, the Government failed to respond to the commission’s
repeated requests for access. The Permanent and Deputy Permanent Representatives of the
Permanent Mission of Eritrea to the United Nations did, however, accept to meet the
members of the commission in New York. The Deputy Permanent Representative also
forwarded new national legislation and media articles on Eritrea to the commission. The
Head of the commission secretariat was also able to meet with Presidential Adviser and
Head of Political Affairs of the People’s Front for Democracy and Justice (PFDJ), Yemane
Gebreab, in Geneva during the thirty-first session of the Council session, in March 2016.
5. Given its limited ability to meet directly with Eritrean officials, the commission has
relied, where relevant, on information issued by the Government.
C. Methodology
6. The investigations, analysis and conclusions of the commission were guided by the
human rights treaties ratified by Eritrea and customary international law.
7. The commission followed the methods of work described in its first report,
including with regard to the protection of witnesses, investigative methods, its legal and
factual findings, the historical background of Eritrea, the State’s economic and political
context and its legal framework.
1 See also A/HRC/29/CRP.1.
8. The protection of witnesses and victims remains a central concern. Almost all
witnesses and victims feared reprisals by the Eritrean authorities, either against themselves
or their family members in Eritrea. For this reason, all information gathered by the
commission during its investigations is confidential. The commission systematically sought
the explicit and informed consent of victims and witnesses for the use of information
pertaining to them.
9. The commission paid special attention to allegations of sexual and gender-based
violence, including violence against women and girls, and assessed the gender dimension
and impact of other violations. It also took into account the specific challenges posed in
investigating allegations of sexual violence against both women and men.
10. In accordance with practices followed by previous United Nations commissions of
inquiry and other fact-finding bodies denied access to the territory where the alleged
violations were committed, the commission visited neighbouring and other countries to
conduct interviews with those who had first-hand information. It also conducted interviews
using audio and video means of communication.
11. On 9 November 2015, the commission issued an invitation for written submissions.
The deadline for submissions was 15 January 2016.
12. The commission recalls that, although it is not a judicial body, it adopted a rigorous
approach when analysing the information it collected. It assessed the credibility and
reliability of each witness’s evidence on the basis of the information available to it. Patterns
of conduct described by the commission are based on numerous credible sources with direct
information, supplemented with expert evidence, hearsay evidence and/or open source
information.
13. Like similar United Nations commissions of inquiry, the commission maintained its
standard of proof based on “reasonable grounds to believe”.
D. Applicable regional and international law
14. Eritrea is a State party to the International Covenant on Civil and Political Rights,
the International Covenant on Economic, Social and Cultural Rights, the African Charter on
Human and Peoples’ Rights, the Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment, the International Convention on the Elimination of
All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of
Discrimination against Women, the Convention on the Rights of the Child and the first two
Optional Protocols thereto, the African Charter on the Rights and Welfare of the Child, the
Forced Labour Convention, 1930 (No. 29) and the Abolition of Forced Labour Convention,
1957 (No. 105) of the International Labour Organization.
15. Although Eritrea is not a party to the Rome Statute of the International Criminal
Court, many provisions of the Rome Statute reflect international customary law binding on
Eritrea.
II. Written submissions
16. In response to its call, the commission received almost 45,000 written submissions,
the vast majority of which were critical of the first report of the commission. Only eight
submissions were sent from Eritrea.
17. To evaluate the submissions, the commission adopted a methodology to ensure that
a statistically representative sample of more than 500 individuals from 16 countries would
be contacted about their contributions.
18. Given the large number of group letters and petitions and the similar contents of
most of the submissions, the commission has concluded that the campaign critical of its
first report was well organized. While the commission is satisfied that a significant number
of the letters were essentially voluntary, very few of those contacted had actually read the
report, and many had been provided with sensationalized information about the
commission’s findings.
19. The commission found that the most fervent critics of its findings were Eritreans
who had left the country before or immediately after 1991. A substantial number of
correspondents stated that they had written primarily to voice their opposition to United
Nations sanctions. These submissions were therefore largely based on either an erroneous
understanding or deliberate misinformation about the United Nations sanctions regime.
There appeared to be significant misinformation on other issues as well; for example, one
correspondent stated that he had written to counter the commission’s finding that “women
were being raped on every Eritrean street corner”.
20. Among the submissions, there were some letters that had been submitted
involuntarily, namely, either because the author had been coerced or the letter had been
submitted without the knowledge of the signatory. In one country, a significant number of
contributors stated that they had not appended their names to a petition and that their
signatures had therefore been forged. Of greatest concern were those witnesses in States
where Eritreans tend to be guest workers rather than refugees or dual nationals, who
informed the commission that Eritrean officials had made it known that Eritreans who did
not write to the commission supporting the Government would not have their passports
renewed. Without a valid passport, Eritrean workers would not have their visas renewed.
21. The commission was able to identify a number of common themes in the
correspondence, including the commission’s failure to visit Eritrea; the detrimental impact
of United Nations sanctions on the humanitarian situation in Eritrea; that there was no rape
in Eritrea; the failure of the commission to ensure implementation of the decision of the
Eritrea-Ethiopia Boundary Commission on Badme; that indefinite military conscription in
Eritrea was justified by the threat from Ethiopia; that there was no discrimination against
women; the history of inter-ethnic and interreligious harmony in Eritrea; that there was no
shoot-to-kill policy at Eritrean borders; that education and health care were free in Eritrea,
unlike in other States; and that Eritrea had made progress on the Millennium Development
Goals.
22. The commission notes that most writers stated that they visited Eritrea only
occasionally. Many stressed the general sense of calm and order in Asmara. It is important
to note, however, that the types of gross human rights violations in Eritrea documented by
the commission in its first report are not committed on the streets of Asmara, but rather
behind the walls of detention facilities and in military training camps. Torture and rape are
not normally perpetrated in the open; the commission nonetheless gathered a large amount
of corroborated evidence and observed the physical and emotional scars of such violence in
people who have fled the country. The façade of calm and normality that is apparent to the
occasional visitor to the country, and others confined to sections of the capital, belies the
consistent patterns of serious human rights violations. After careful review, the commission
concludes that the submissions do not undermine the findings described in its first report.
III. Recent human rights developments
A. Introduction
23. There have been several notable developments in Eritrea since the publication of the
commission’s report in June 2015. In February 2016, at the request of the Government, a
delegation of the Office of the United Nations High Commissioner for Human Rights
(OHCHR) undertook a working-level technical assessment visit to Eritrea. In March 2016,
the Government of Eritrea released four Djiboutian prisoners of war. In addition, a
delegation of the Office for the Coordination of Humanitarian Affairs visited Eritrea. The
President of the Security Council Committee pursuant to resolutions 751 (1992)
and 1907 (2009) concerning Somalia and Eritrea has also been invited.
24. The OHCHR delegation visited community courts and interacted with officials and
judges. It also visited local community projects, Sembel prison and the rehabilitation centre
in Asmara. OHCHR noted that the visit was short and not conducted in circumstances that
allowed for a full assessment of the situation of human rights.
25. A number of foreign journalists were also invited to Eritrea. The commission notes
that Eritreans have some access to international news, satellite television and the Internet,
particularly in Asmara.
26. The Government provided the commission with documentation on four pieces of
legislation issued in May 2015. The commission has however received conflicting reports
on whether the new legislation is actually in force.
27. Large numbers of Eritreans continue to flee the country. In 2015, 47,025 Eritreans
applied for asylum in Europe, slightly higher than the number in 2014, more than double
the number of applications made in 2013 and nearly four times the figure for 2012.2
B. Current human rights concerns
28. The commission did not review each and every human rights violation reported to it,
but rather had the aim to apprise the Human Rights Council of developments, or lack
thereof, with regard to patterns of the gravest violations.
29. The commission prioritized gathering information on human rights issues from those
who had recently fled Eritrea. The evidence collected revealed that the serious human rights
violations documented by the commission in its first report persist. Eritreans continue to be
subjected to indefinite national service, arbitrary detention, torture, enforced
disappearances, reprisals for the alleged conduct of family members, discrimination on
religious and ethnic grounds, sexual and gender-based violence, and killings. In addition,
many of those subjected to enforced disappearances in the past remain unaccounted for.
1. Right to participate in public affairs
30. The delegation of Eritrea participating in eighteenth session of the Working Group
on the Universal Periodic Review stated that national elections would not be held until “the
threats to national security and sovereignty had been eliminated”. The commission received
no indication of plans to hold national elections.
2 See Eurostat, Asylum quarterly report, 3 March 2015.
2. Constitution and the rule of law
31. It is widely accepted that the Constitution of 1997 has never been in force. In
May 2014, President Isaias Afwerki announced the drafting of a new constitution.
Presidential adviser Yemane Gebreab informed the commission that a committee had been
established to consider drafting a new constitution. The commission did not receive any
further detail about the process. Witnesses also confirmed that subordinate legislation
issued by decree was still being implemented in an arbitrary manner. The legal vacuum
continues to have far-reaching consequences for the protection of human rights in Eritrea.
In addition, there is no independent judiciary, no national assembly and no other democratic
institutions. In conclusion, the commission has found no progress in establishing the rule of
law.
3. Military/national service programmes
32. In its first report, the commission documented a number of grave human rights
violations in the State’s military/national service programmes, including its prolonged and
indefinite duration, abusive conditions and the use of conscripts as forced labour. Indefinite
military/national service is frequently cited by Eritreans as the prime reason for leaving
Eritrea.
33. On 8 April 2015, Yemane Gebreab, at the Bruno Kreisky Forum for International
Dialogue, announced that Eritrea intended to limit its military/national service programmes
to 18 months. Eight months later, however, the Government stated:
Eritrea has no option but to take necessary measures of self-defense that are
proportionate to the threat it faces. […] This is the reason why National Service –
limited by law to 18 months – remains prolonged.3
34. In February 2016, the Minister for Information, Yemane Ghebremeskel, confirmed
that there were no plans to limit military service programmes, stating that “demobilization
is predicated on removal of the main threat”, and “You are talking about prolongation of
national service in response to... continued belligerence by Ethiopia.”4
35. The commission emphasizes that mandatory military/national service is not
necessarily a human rights violation. What distinguishes the military/national service
programme in Eritrea from those in other States is (a) its open-ended and arbitrary duration,
which routinely exceeds the 18 months provided for in a decree issued in 1995, frequently
by more than a decade; (b) the use of conscripts as forced labour in a wide range of
economic activities, including private enterprises; and (c) the rape and torture perpetrated in
military camps, and other conditions that are often inhumane.
36. In addition to a reserve army, in 2012, the Government created Hizbawi Serawit,
often referred to as the “People’s Army” or “the militia”. Numerous witnesses informed the
commission that Eritreans in their 60s and 70s are required to participate in the activities of
Hizbawi Serawit. In sum, very few Eritreans are ever released from their military/national
service obligations.
3 Shabait.com, “UNHCR Eligibility Guidelines: Factual Findings or Recycled Defamation?”,
17 December 2015.
4 Reuters, “Eritrea won’t shorten national service despite migration fears”, 25 February 2016.
4. Arbitrary detention, enforced disappearance, and torture
37. In its first report, the commission reported extensively on cases of arbitrary
detention, enforced disappearance, and torture and other cruel, inhuman or degrading
treatment in detention centres, military and civilian, official and unofficial.
38. The commission interviewed many Eritreans who had fled the country in the
previous two years and reported that the violations described continue. Almost all of those
arrested are detained in violation of fundamental rules of international law. Apart from
those accused of minor common crimes or misdemeanours, most are detained without any
form of judicial proceeding whatsoever. In the vast majority of those cases, the families of
those detained receive no official information about the fate of their relatives. Lastly, many
of those detained who spoke with the commission – either because they had been released
or because they had escaped – described various forms of torture inflicted on them to obtain
information or to punish them for alleged wrongs, or simply to create a general climate of
fear.
39. On the basis of the information gathered, the commission found that the use of
torture by Eritrean officials has been, and remains, both widespread and systematic in
civilian and military detention centres.
5. Reprisals against third parties
40. In its first report, the commission described cases of reprisal against family
members, friends and associates for the alleged conduct of a third person. Forms of reprisal
include arrest, detention, fines, harassment, eviction and the confiscation of property. Those
targeted included persons close to government critics within and outside the country,
Eritreans alleged to have evaded or deserted military/national service, Eritreans who left the
country, Eritreans who escaped from prison and members of non-recognized religions.
41. The commission heard evidence that the punishment of third parties for alleged
wrongs continues. With regard to the claims made by government officials that any
punishment of third parties would be pursuant to legal proceedings on charges of aiding and
abetting the alleged wrongdoer, the commission found no evidence to support this. On the
contrary, all witnesses told the commission that there had been no judicial proceedings
relating to their punishment.
6. Discrimination on religious or ethnic grounds
42. In its first report, the commission found that the Government held tight control over
the freedom of religion. Only four religious denominations are recognized, namely, Eritrean
Orthodox, Roman Catholic, Evangelical Lutheran and Sunni Islam. Religious practice by
members of non-authorized religions is prohibited, and subject to systematic repression.
Following a decree issued in 2002 requiring registration of all religious denominations
seeking authorization to practice, a number of smaller religious groups attempted to
register. To date, none have been registered.
43. The commission recognizes that a considerable degree of religious harmony exists
between authorized denominations. Nonetheless, a number of witnesses informed the
commission that discrimination against members of non-authorized religions continues.
Government control of authorized religions also persists; for example, the commission
received reports of recent arbitrary arrests and the detention of an unconfirmed number of
priests, deacons and monks of the Eritrean Orthodox Church in and around Asmara, and
other measures against other clergy members. Sources said that the victims had asked for
the release of former Patriarch Abune Antonios.
44. The commission also received disturbing reports about discrimination against the
minority Afar and Kunama ethnic groups. These reports require further investigation.
7. Sexual and gender-based violence
45. The commission found that sexual and gender-based violence persists in Eritrea. It
heard evidence that some cases of rape committed by men against women in local
communities had been adjudicated by courts, and the perpetrators had been sentenced to
imprisonment. However, rape and domestic servitude in military training centres and in the
army, and rape in detention, go unpunished. Women and girls who try to flee the country
are at greater risk of sexual and gender-based violence. The commission documented recent
cases of women and girls, arrested by soldiers guarding the border, who were forced to strip
naked and subjected to acts of sexual violence.
46. Rapes often resulted in physical and/or mental suffering and pain and, in some
instances, to unwanted pregnancies or sexually-transmitted diseases, such as HIV,
consequences that in turn gave rise to further human rights violations and discrimination.
47. Detention continues to have a discriminatory effect on women, given that the special
needs of pregnant and nursing mothers and women with children in detention continue to
be neglected. In some recent instances, this has resulted in miscarriage or infant illness.
48. Harmful practices, such as the forced marriage of underage girls, including as a
result of poverty, persist in Eritrea, even though the legal minimum age for marriage is 18
years. Discrimination against women intersects with other human rights violations. Girls
continue to be removed from school and/or forced into marriages arranged by their families
in order for them to avoid the harsh conditions and the possibility of sexual abuse in
national service training centres. Female and child relatives of men who have been
subjected to an enforced disappearance are often victims of various forms of discrimination.
49. Sexual violence against men continues in detention. Men’s sexual organs are often
targeted for beating or electric shock, in some instances with the intent of ensuring that the
victim will no longer be able to reproduce.
8. Right to life
50. The commission found that, in Eritrea, the Government violates the right to life in
two ways: (a) by committing extrajudicial killings; and (b) by subjecting Eritrean citizens to
abysmal conditions of detention and national service, in which death is a foreseeable
consequence.
51. The commission obtained reliable evidence that the shoot-to-kill policy at Eritrean
borders targeting Eritreans attempting to flee the country is still in force, even though it is
not implemented as rigorously as in the past. Other types of extrajudicial killings have also
been confirmed; for example, on 3 April 2016, as military/national service conscripts were
being transported through the centre of Asmara, several conscripts jumped from the trucks
on which they were travelling. Soldiers fired into the crowd, killing and injuring an
unconfirmed number of conscripts and bystanders.
52. The commission also received recent information about deaths in detention and in
the course of military service owing to the State’s callous disrespect for human life.
9. Freedom of expression, assembly and association
53. In its first report, the commission reported extensively on violations of freedom of
expression, assembly and association. It heard evidence that suggested that there has been
no material improvement in the enjoyment of the rights to freedom of expression, assembly
and association.
10. Nakfa exchange
54. On 4 November 2015, the Government published a decree on the exchange of old
Nakfa currency notes for new ones. Many witnesses raised concerns about this programme.
Withdrawal is limited to small sums, regardless of the amount deposited. The commission
notes that the programme is not being implemented in accordance with applicable legal
notice, but believes it is too early to make definitive conclusions with regard to the impact
of the programme on economic rights and the rights to property, privacy, legal certainty and
the presumption of innocence.
11. Financial transparency and corruption
55. The Monitoring Group on Somalia and Eritrea, in its report on Eritrea submitted to
the Security Council Committee pursuant to resolutions 751 (1992) and 1907 (2009)
concerning Somalia and Eritrea, pointed out that the Government of Eritrea continued not
to disclose its budget appropriations, and that the State’s budget was not publicly available
(S/2015/802, para. 69). The commission observes that the Government’s disregard for
financial transparency and accountability reflects its indifference to the rule of law in other
areas, and makes it more difficult to assess its progress in implementing economic and
social rights.
56. Numerous witnesses indicated that petty corruption, bribery, trading in influence,
illicit enrichment and abuse of authority are endemic in Eritrea. These forms of corruption
have a direct impact on citizens’ enjoyment of civil and political rights, and undermine the
rule of law. Witnesses consistently linked corruption to exemption or early release from
military service. They also described the use of conscript labour to benefit individuals or
private enterprises, a particular form of illicit enrichment. According to other witnesses,
officials also routinely accepted bribes to release individuals from detention and to obtain
unofficial information about the location of detained relatives. Many others indicated that
they had bribed border officials to turn a blind eye to their passage out of the country.
IV. Crimes against humanity5
A. Introduction
57. In its resolution 29/18, the Human Rights Council extended the mandate of the
commission of inquiry to investigate systematic, widespread and gross violations of human
rights in Eritrea, including where these violations may amount to crimes against humanity.
58. For the purposes of the present report, the commission will rely on the definitions of
crimes contained in the Rome Statute of the International Criminal Court where they reflect
customary international law. Where the Rome Statute is silent or incomplete, or where the
commission is uncertain that the Statute reflects customary international law, the
commission will supplement its discussion by reviewing relevant jurisprudence and other
reliable sources of international criminal law. There is no statute of limitations with respect
to crimes against humanity.
5 For more detailed legal analysis, see A/HRC/32/CRP.1.
B. Crimes against humanity in Eritrea
59. Article 7 of the Rome Statute defines crimes against humanity as particular acts
when committed as part of a widespread or systematic attack directed against any civilian
population.
60. The commission previously concluded that the Government of Eritrea and the PFDJ
had adopted totalitarian practices aimed at perpetuating their own power (A/HRC/29/42,
para. 24). Central to the ruling leadership’s campaign to perpetuate its hold on power has
been its wholesale disregard for the right to liberty and security of its citizens. Specifically,
Eritrean officials have committed the crimes of enslavement, imprisonment, enforced
disappearance, torture, reprisals as other inhumane acts, persecution, rape and murder.
61. Enslavement has been committed on an ongoing, widespread and systematic basis
since 2002.6 Imprisonment, enforced disappearance, torture, reprisals as other inhumane
acts, and persecution have been committed on a persistent, widespread and systematic basis
since 1991. Rape and murder have been committed in a systematic manner since 1991.
62. Because State officials have relied so extensively on the commission of the crimes to
establish and consolidate total control over the Eritrean population, the commission has
determined that they have engaged in a persistent, widespread and systematic attack against
the civilian population of Eritrea since May 1991.
63. Given that many of the victims of the above acts were, and still are, military/national
service conscripts, the commission has considered whether such conscripts may be
classified as members of the civilian population for the purposes of crimes against
humanity. It is of the view that, with the exception of defined periods,7 Eritrea has not been
engaged in an armed conflict as defined in international law. International humanitarian
law, which distinguishes between combatants, combatants hors de combat and civilians,
does therefore not apply. Given the particular nature of military/national service
programmes in Eritrea, conscripts have had an “inoffensive character” and therefore may be
victims of an attack on the civilian population.
1. Enslavement
64. The international prohibition against enslavement is reflected in article 7(2)(c) of the
Rome Statute, which defines the crime as “the exercise of any or all of the powers attaching
to the right of ownership over a person”. The commission relied on the interpretations of
this definition by four international criminal tribunals, namely, the International Criminal
Court, the International Criminal Tribunal for the Former Yugoslavia, the Special Court for
Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia.8 Acts of sexual
slavery have also been addressed under the crime of enslavement.
6 With the exception of the period from 10 to 12 June 2008, when Eritrea was involved in armed
clashes with Djibouti.
7 From May 1998 to June 2000 and from 10 to 12 June 2008.
8 For the International Criminal Tribunal for the Former Yugoslavia, see Prosecutor v Kunarac, IT-96-
23-T& IT-96-23/1-T, judgment, 22 February 2001, paras. 518-543; and Prosecutor v. Kunarac, IT-
96-23& IT-96-23/1-A, judgment, 12 June 2002, paras. 116-124; for the Special Court for Sierra
Leone, Prosecutor v. Taylor, SCSL-03-01-A-1389, judgment, 26 September 2013, paras. 446-448
(citing the Kunarac judgments approvingly); for the International Criminal Court, Prosecutor v.
Katanga, ICC-01/04-01/07-3436, judgment pursuant to Article 74 of the Statute, 7 March 2014, para.
976; and for the Extraordinary Chambers in the Courts of Cambodia, Prosecutor v. Kaing, 001/18-07-
2007-ECCC/SC, appeal judgment, 3 February 2012, paras. 117-162.
65. Like the victims of the crime of enslavement in Germany during the Second World
War, in Cambodia during the Khmer Rouge regime, and in the former Yugoslavia and
Sierra Leone in the 1990s, the victims of the military/national service schemes in Eritrea are
not bought and sold on an open market. Rather, the powers attaching to the right of
ownership in Eritrea are revealed by (a) the uncertain legal basis for the national service
programmes; (b) the arbitrary and open-ended duration of conscription, routinely for years
beyond the 18 months provided for by the decree of 1995; (c) the involuntary nature of
service beyond the 18 months provided for by law; (d) the use of forced labour, including
domestic servitude, to benefit private, PFDJ-controlled and State-owned interests; (e) the
limitations on freedom of movement; (f) the inhumane conditions, and the use of torture
and sexual violence; (g) extreme coercive measures to deter escape; (h) punishment for
alleged attempts to desert military service, without an administrative or judicial proceeding;
(i) the limitations on all forms of religious observance; and (j) the catastrophic impact of
lengthy conscription and conditions on freedom of religion, choice, association and family
life.
66. Here, the commission again wishes to stress that compulsory military/national
service is not necessarily a human rights violation or a crime against humanity. What
distinguish military/national service programmes in Eritrea from those in other States are
the apparent underlying purposes of the programmes and the manner in which they are
implemented.
67. The Government has on many occasions stated that prolonged military/national
service is necessitated by external threats, including the occupation by Ethiopia of Eritrean
territory and United Nations sanctions. In the view of the commission, these do not justify
the open-ended and arbitrary nature of the State’s military/national service programmes,
nor do they explain the use of conscripts to carry out non-military work, including for
State-owned and other enterprises.
68. The commission concludes that there are reasonable grounds to believe that, within
the context of military/national service programmes, Eritrean officials exercise powers
attaching to the right of ownership over Eritrean citizens. It also determines that, despite the
justifications for a military/national service programme advanced in 1995, the programmes
today serve primarily to boost economic development, to profit State-endorsed enterprises
and to maintain control over the Eritrean population in a manner inconsistent with
international law. The commission therefore finds that there are reasonable grounds to
believe that Eritrean officials have committed the crime of enslavement, a crime against
humanity, in a persistent, widespread and systematic manner since no later than 2002.
2. Imprisonment or other severe deprivation of physical liberty
69. The international prohibition against imprisonment or other severe deprivation of
physical liberty in violation of fundamental rules of international law is reflected in article
7(1)(e) of the Rome Statute. The commission stresses that the right to liberty is not absolute
and that individuals may be arrested in certain circumstances and conditions. It focuses
primarily on the inordinate number of detentions without any form of legal authorization or
proceeding.
70. The vast majority of witnesses informed the commission that they had been arrested
and detained arbitrarily, many repeatedly, or had had friends or relatives who had been
detained for periods ranging from months to years.
71. Arbitrary detention in Eritrea is routine and indiscriminate. Indeed, in its first report,
the commission concluded that Eritreans were arrested for reasons arbitrary to such an
extent that no one could possibly identify the law that might have been broken
(A/HRC/29/42, para. 41). When referring to detained individuals, Eritrean officials
regularly invoke treason and espionage. Treasonous behaviour appears to include
conscientious objection to military service, practice of an unauthorized religion, applying
for release from military service, attempting to escape military service, trying to leave the
country, seeking information about the detention of a loved one, offending a high-ranking
government or PFDJ official and having a family member accused of a perceived wrong.
The Government has successfully stifled all forms of political dissent, and those who have
spoken out in the past have generally disappeared, fled or been otherwise silenced.
72. Most witnesses told the commission that they had been arrested and detained
without due process. They were not arrested on the basis of a warrant. They were not
informed of the reasons for their detention. They were never charged or advised of
procedural rights. They were never provided with legal assistance or an opportunity to
contact their families; and, once in detention, they were never brought before judicial
authorities or advised of the anticipated length of detention. This evidence was corroborated
by former security officials who described their role in arbitrarily detaining Eritreans.
73. Courts do exist in Eritrea, and some observers have noted that community courts
appear to address minor local disputes. The commission recalls, however, that, in its first
report, it found that violations of the right to a fair trial in criminal proceedings had been
particularly blatant (A/HRC/29/42, para. 39). The commission’s concerns are particularly
acute with regard to the Special Court of Eritrea, which was originally established to try
those accused of corruption and embezzlement. The commission’s findings on judiciary
were based on evidence provided by both victims and former judges. The commission
therefore concludes that even those detainees convicted pursuant to judicial proceedings
have been deprived of their liberty in violation of fundamental rules of international law.
74. The evidence demonstrates that arrests and detentions in violation of fundamental
rules of international law have been, and remain, central to an Eritrean State policy
designed not only to discourage dissent but to suppress independent or critical thought, and
to instil fear in the population, with the purpose of maintaining control over Eritreans in a
manner inconsistent with international law. The commission concludes that there are
reasonable grounds to believe that Eritrean officials have committed the crime of
imprisonment, a crime against humanity, in a persistent, widespread and systematic manner
since May 1991.
3. Enforced disappearances
75. Article 7(2) of the Rome Statute prohibiting enforced disappearances reflects
customary international law applicable throughout the period covered by the reports of the
commission.
76. Almost all witnesses reported that those detained had been subjected to enforced
disappearance. Many described the steps that they had taken to obtain information about the
fate of their relatives, and they did so despite the risk to themselves: (a) they sought
information from their immediate local authorities, and from personal contacts; (b) they
contacted area medical facilities; (c) they knocked on the gates of each known detention
centre in their region; and (d) some even contacted senior government officials.
77. Witnesses informed the commission that friends and family of disappeared persons
were never able to obtain information officially. That some were able to obtain information
unofficially, for example by bribing a prison guard or from released fellow detainees, does
not absolve the State of its obligation to provide official information.
78. The commission previously concluded that the Government has imprisoned many
Eritreans in violation of fundamental rules of international law since 1991. In most cases,
the Government refused to provide information on the fate or whereabouts of those
detained. In doing so, Eritrean officials intended to deprive victims of the protection of the
law for a prolonged period of time and to create fear among their relatives, as part of a
government policy to maintain control over the Eritrean population in a manner contrary to
international law. The commission concludes that there are reasonable grounds to believe
that Eritrean officials have committed the crime of enforced disappearance, a crime against
humanity, in a persistent, widespread and systematic manner since May 1991.
4. Torture
79. The international prohibition against torture is reflected in Article 7(2)(e) of the
Rome Statute.
80. Nearly all those interviewed by the commission who had been held in one of the
numerous detention centres in Eritrea stated that they had been tortured. They also
explained that physical and mental suffering was inflicted to extract information, to punish
and to create an atmosphere of fear. The commission documented other forms of torture
that affect women. Information on torture from victims was corroborated by former security
officers who took part in the crime. Torture is also widespread in the military to punish and
to instil discipline.
81. The commission concludes that the use of torture was, and remains, an integral part
of the Government’s repression of the civilian population. It therefore finds there are
reasonable grounds to believe that Eritrean officials have committed the crime of torture,
against persons under their control, a crime against humanity, in a persistent, widespread
and systematic manner since May 1991.
5. Other inhumane acts
82. Article 7(1)(k) of the Rome Statute sets out, as a separate crime against humanity,
other inhumane acts of a similar character intentionally causing great suffering, or serious
injury to body or to mental or physical health.
83. In its first report, the commission described the widespread and systematic practice
of punishing Eritreans on the basis of “guilt by association”, in particular relatives and
associates of government critics (both within Eritrea and outside the country), persons who
evaded or deserted military/national service, Eritreans who left the country, persons who
escaped from prison and members of non-authorized religious denominations
(A/HRC/29/42, para. 75).
84. Although reprisals against third parties in Eritrea may take various forms, of greatest
concern to the commission are those involving arbitrary detention, enforced disappearance
or murder.
85. The commission concludes that most forms of reprisal against third parties, and in
particular imprisonment, enforced disappearance and murder, cause great suffering, as well
as serious injury to mental or physical health. The commission considers that the specific
nature of reprisals against third parties is not captured by the crimes of imprisonment,
enforced disappearance or murder. It also determines that reprisals are integral to the
Government’s efforts to maintain its authority in a manner contrary to international law.
The commission therefore concludes that there are reasonable grounds to believe that
Eritrean officials have committed other inhumane acts, a crime against humanity, in a
persistent, widespread and systematic manner since May 1991.
6. Persecution
86. The international prohibition against persecution is reflected in articles 7(1)(h) and
7(2)(g) of the Rome Statute.
87. The commission has concluded that the Government perceives freedom of religion
as a threat and has thus controlled religious expression. At various times, State officials
have persecuted Muslims, Jehovah’s Witnesses and members of other non-authorized
religious groups, commonly known as Pentes. They have also persecuted, at various times,
members of the Afar and Kunama ethnic groups.
88. The commission therefore concludes that there are reasonable grounds to believe
that Eritrean officials have intentionally and severely deprived Eritrean Pentes and some
Muslims of fundamental rights contrary to international law. Muslims were targeted in
particular in the 1990s, again in 2007-2008, and following the Forto incident in 2013.
Jehovah’s Witnesses have been targeted since May 1991, and other non-authorized
religious groups since no later than 2002. The Afar and Kunama ethnic groups were
particularly targeted in the period from 1998 to 2001. Persecution has been an integral part
of the Government’s efforts to maintain its authority in a manner contrary to international
law. The commission therefore finds that Eritrean officials have committed the crime of
persecution, a crime against humanity, in a widespread and systematic manner since
May 1991.
7. Rape
89. The international prohibition against rape is reflected in article 7(1)(g) of the
Rome Statute.
90. The commission documented a significant number of cases of rape committed
against both men and women in military training and detention centres. In committing this
crime, perpetrators took advantage of the coercive environment and, in many cases, also
used force or threat of force. The rapes were committed as part of the widespread or
systematic attack against the Eritrean civilian population.
91. The commission therefore concludes that there are reasonable grounds to believe
that rape, a crime against humanity, has been committed both in the context of
military/national service and in detention centres since 1991.
8. Murder
92. The international prohibition against murder is reflected in article 7(1)(a) of the
Rome Statute.
93. The commission documented a number of individual and mass extrajudicial
executions by Eritrean authorities since May 1991, including the killing of disabled
veterans in 1994, killings of Muslims in 1997, at Adi Abeito in 2004, and killings at Wi’a
in 2005. It also heard evidence about an official shoot-to-kill policy used against Eritreans
attempting to flee the country through land or maritime borders, although the evidence
shows that the policy has been implemented less rigorously in recent years.
94. Additionally, numerous witnesses heard by the commission described deaths
resulting from torture and the inhumane conditions associated with detention centres and
military service. Given that the evidence indicates that many of these deaths were the result
of a callous indifference to human life on the part of Eritrean officials, the commission
concludes that Eritrean officials are also liable for these deaths.
95. The commission concludes that killings have been, in some instances, part of the
Government’s campaign to maintain its control in a manner inconsistent with international
law, and in others, an inevitable consequence of the campaign. There are therefore
reasonable grounds to believe that Eritrean officials have committed murder, a crime
against humanity, in a systematic manner since May 1991.
V. Accountability
96. The commission recalls that, in its resolution 29/18, the Human Rights Council
extended the mandate of the commission of inquiry to investigate gross violations of human
rights in Eritrea with a view to ensuring full accountability, including where these
violations may amount to crimes against humanity.
A. Institutional accountability
97. Eritrea is an authoritarian State. Despite some attributes of a democratic State,
including a 16-member cabinet, a judicial system and regional governors and assemblies,
political power in Eritrea is concentrated in the hands of the President and of a small and
amorphous circle of military and political loyalists. The President appears to maintain
shadow structures of advisers who make policy decisions outside the formal governing
structures. Government ministers, who are not in the President’s inner circle, do not debate
or create policy, but merely enforce executive will. The leading members of the ruling
PFDJ party and the commanders of the security forces appear to report directly to the
President, and each group has responsibilities parallel to those of appointed government
officials. More generally, individual proximity to the President is a more reliable indicator
of de facto influence and control than official title.
98. In assessing de facto power in Eritrea and its relationship to the gross human rights
violations and crimes described in the present report, the commission bears in mind that
Eritrea is a highly militarized society, and that military and security personnel are
disproportionately represented within the President’s inner circle. Both the National
Security Office and the military have a central role in affairs of State. The commission has
reasonable grounds to believe that the National Security Office is responsible for most
cases of arbitrary arrest, enforced disappearance and torture in official and unofficial
detention centres.
99. The military in Eritrea is responsible for the numerous abuses associated with the
Government’s military service programmes, including in training camps and military
detention centres and at Eritrean borders. Military detention centres reportedly exist
wherever there is a military encampment. Military commanders are also responsible for the
use of conscripts as forced labour. It is the commission’s understanding that the
commanders of the country’s five military zones, all generals, hold considerably more
power than civilian governors, given that they control economic assets and military prisons
in their zones.
100. The distinction between the PFDJ and the Government is blurred at the highest
levels, given also that the President is Secretary-General of the party. The PFDJ leadership
reportedly controls parastatal enterprises in Eritrea, and thus benefits from the use of
conscript labour in them.
101. The police appear to have less influence, although some witnesses described cases of
illegal detention in police stations. That government ministers tend to have less de facto
power than the military, national security and the President’s inner circle does not preclude
the possibility that individual ministers closely associated with the President could be liable
for the acts described in the present report.
B. Individual accountability
102. Following a review of its evidence, the commission is satisfied that there are
reasonable grounds to believe that particular individuals, including officials at the highest
levels of the State and the PFDJ, and commanding officers, bear responsibility for crimes
against humanity and other gross human rights violations.
103. In order to assist future accountability mechanisms, the commission compiled files
on a number of individuals it has reasonable grounds to believe bear responsibility for the
crimes it has documented. These files include the names of suspects, information about the
potential suspect’s position and a summary of evidence compiled by the commission
relating to the potential suspect. With regard to individual statements, the commission did
not include any information that could identify witnesses. In compiling the files, the
commission bore in mind that, under customary international law, there are various types of
liability for the crimes described above. Liability may be attached not only to those who
commit crimes directly but also to individuals who plan, order or instigate them. In
addition, both civilian and military superiors may be liable for crimes committed by their
subordinates. Future accountability mechanisms may wish to consider whether a joint
criminal enterprise existed during the period covered by the commission in its reports, or
any part of that period; for that reason, the commission also took into consideration
information on individuals who may have contributed to such an enterprise. Lastly, the
commission recalls that individuals who aid and abet the execution of a crime may
themselves also be liable for the crime, and that providing such assistance may take a
variety of forms.
104. The files and other relevant information are safeguarded in the commission’s
confidential database. The commission has requested that the United Nations High
Commissioner for Human Rights grant access to information for purposes of accountability
where confidentiality and protection concerns have been addressed.
105. In addition, the commission compiled files on victims of enforced disappearances,
which contain, inter alia, information on their whereabouts. The files will be handed over to
the Working Group on Enforced or Involuntary Disappearances for further action where
confidentiality and protection concerns have been addressed.
C. Accountability mechanisms
106. At the World Summit of Heads of State and Government in 2005, world leaders
reaffirmed that each individual State has the primary responsibility for protecting its
population from genocide, war crimes, ethnic cleansing and crimes against humanity.9
107. Similarly, the Rome Statute recognizes that the exercise of national jurisdiction is
not only a right but also a duty of States. Given its findings with regard to the rule of law in
Eritrea, however, the commission is of the view that, without substantial institutional and
legal reform, there is no genuine prospect of the domestic judicial system holding
perpetrators to account in a fair and transparent manner. Far-reaching reform would
enhance the viability of national accountability mechanisms.
108. Many States Members of the United Nations could exercise jurisdiction over
Eritreans accused of crimes against humanity who are in their territories, in accordance
with principles of universal or passive personality jurisdiction. Pursuing such prosecutions
would be consistent with the principles set out in the preamble of the Rome Statute which,
9 See General Assembly resolution 60/1.
inter alia, recalls “that it is the duty of every State to exercise its criminal jurisdiction over
those responsible for international crimes”.
109. The commission concludes that neither a hybrid tribunal nor a truth commission
would be a viable option in the current circumstances. A regional mechanism could,
however, be created.
110. Eritrea is not a State party to the International Criminal Court. The Court may
therefore exercise jurisdiction only over the crimes committed in Eritrea if the State were to
ratify the Rome Statute or if the Security Council were to refer the situation in Eritrea to the
Court.
111. Lastly, acting under Chapter VII of the Charter of the United Nations, the Security
Council could also impose targeted sanctions on individuals suspected of international
crimes.
VI. Conclusions and recommendations
A. Conclusions
112. The commission finds that there are reasonable grounds to believe that crimes
against humanity have been committed in Eritrea since 1991. Eritrean officials have
engaged in a persistent, widespread and systematic attack against the country’s
civilian population since 1991. They have committed, and continue to commit, the
crimes of enslavement, imprisonment, enforced disappearance, torture, other
inhumane acts, persecution, rape and murder.
113. In the absence of a constitution, an independent judiciary or democratic
institutions in Eritrea, the commission has found no improvement in the rule of law.
The commission has heard of no plans to hold national elections. While the
commission was informed about the establishment of a committee to consider drafting
a new constitution, it has received no further details.
114. The commission finds that the gross human rights violations it documented in
its previous report persist, including arbitrary detention, enforced disappearances,
torture, killings, sexual and gender-based violence, discrimination on the basis of
religion and ethnicity, and reprisals for the alleged conduct of family members. In
addition, many of those subjected to enforced disappearance in the past remain
unaccounted for.
115. While the commission notes the State’s increased engagement with the
international community, there is no evidence of progress in the field of human rights.
Human rights violations are cited as the main motivating factor for departure by the
consistently large number of Eritreans fleeing the country, including by the rising
number of unaccompanied minors.
116. Eritreans continue to be subjected to indefinite military/national service. The
Government has recently confirmed that there are no plans to limit its duration to the
statutory 18 months. Conscripts are drafted for an indefinite duration of service in
often abusive conditions, and used as forced labour.
117. Political power and control are concentrated in the hands of the President and
a small circle of military and political loyalists. The commission has reasonable
grounds to believe that the top levels of the National Security Office and the military
are responsible for most cases of arbitrary arrest, enforced disappearance and
torture. Military commanders are also responsible for abuses committed in the
context of the Government’s military service programmes and at Eritrean borders.
The leadership of the party and the military also benefit from the use of
military/national service conscripts as forced labour.
B. Recommendations
118. The recommendations made by the commission in its first report remain valid.
The commission highlights below those recommendations that are specifically relevant
to its new mandate, and makes new ones.
1. Government of Eritrea
(a) General recommendations
119. The commission of inquiry recommends that the Government of Eritrea:
(a) Implement fully and without delay the Constitution of 1997; any
amendments thereto should be made in a transparent and participatory manner, and
take into account the State’s international human rights obligations;
(b) Respect the obligations prescribed by the international human rights
treaties to which Eritrea is a party, and ratify and implement other international
human rights instruments, including the International Convention for the Protection
of All Persons from Enforced Disappearance, the Optional Protocol to the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of
Women in Africa, the United Nations Convention against Corruption and the African
Union Convention on Preventing and Combating Corruption.
(b) Governance and administration of justice
120. The commission also recommends that the Government of Eritrea:
(a) Ensure the separation of powers among the legislature, the executive and
the judiciary, and establish the rule of law;
(b) Adhere to the principles of the supremacy of law, equality before the
law, accountability to the law and legal certainty, and procedural and legal
transparency;
(c) Establish without delay an independent, impartial and transparent
judiciary, and ensure access to justice for all;
(d) Ensure that court processes, including judgements, are transparent,
open and accessible to the public, and transmitted to accused persons immediately;
(e) Bring into force the Penal Code, the Criminal Procedure Code, the Civil
Code and the Civil Procedure Code of May 2015, and amend them to reflect all
international human rights standards;
(f) Allow for the creation of political parties, and hold free, fair and
transparent democratic elections at all levels;
(g) Establish an independent national human rights institution with a
protection mandate, including to investigate human rights violations;
(h) Permit human rights defenders and independent civil society
organizations, including gender-specific organizations, to operate without
interference.
(c) Military/national service
121. The commission further recommends that the Government of Eritrea:
(a) Discontinue indefinite military/national service by limiting it to 18
months for all current and future conscripts, as stipulated by the Proclamation on
national service;
(b) Put an immediate end to torture and ill-treatment, sexual violence and
the enslavement of conscripts;
(c) Provide conscripts with humane living conditions, including with regard
to food, health care and shelter;
(d) Cease the practice of using conscripts, detainees and members of the
militia and reserve army as forced labour;
(e) Establish an independent complaint mechanism for conscripts to raise
allegations of ill-treatment and to obtain redress;
(f) Ensure that military commanders responsible for human rights abuses
are held accountable.
(d) Arbitrary arrest, detention and enforced disappearances
122. The commission recommends that the Government of Eritrea:
(a) 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;
(b) Provide information on the fate and whereabouts of all those deprived of
physical liberty;
(c) Review all cases of detainees who have been convicted of an offence in
judicial or similar proceedings but were not accorded the procedural rights
guaranteed in the international instruments to which Eritrea is party;
(d) Provide immediately information on all prisoners of war, and release
them as soon as possible;
(e) Allow access to detainees by legal representatives and family members;
(f) Close all secret places of detention;
(g) Improve the conditions of detention to bring them into line with
international standards and, in particular, ensure access to medical treatment for all
detainees;
(h) Ensure that solitary confinement remains an exceptional measure of
limited duration;
(i) Allow independent monitoring of all places of detention with regard to
both legality and conditions of detention;
(j) Immediately permit unhindered access by independent monitors,
including the Office of the United Nations High Commissioner for Human Rights and
other recognized organizations, to all places of detention, official and unofficial, to
monitor the legality of detentions and the treatment of detainees and prison
conditions, and allow them to conduct regular and unannounced visits, and act
promptly on their recommendations.
(e) Torture and other cruel, inhuman or degrading treatment or punishment
123. The commission also recommends that the Government of Eritrea 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.
(f) Discrimination on religious or ethnic grounds
124. The commission further recommends that the Government of Eritrea:
(a) Respect freedom of religion or belief;
(b) Put an end to the practice of arbitrary arrest and detention of
individuals based on their religious beliefs, in particular followers of specific religious
groups, such as Jehovah’s Witnesses, Pentecostals and other non-authorized religious
groups, and release immediately and unconditionally all those unlawfully and
arbitrarily detained;
(c) Ensure the protection of all minority ethnic groups in Eritrea, in
particular the Kunama and the Afar.
(g) Sexual and gender-based violence
125. The commission recommends that the Government of Eritrea:
(a) Adopt a comprehensive strategy to eliminate stereotypes and harmful
practices that discriminate against women and girls, including forced marriage, and
ensure that the minimum age of marriage, set at 18 years of age, is strictly enforced;
(b) Take measures to ensure de facto gender equality, and address all forms
of violence and discrimination against women, including sexual and gender-based
violence, particularly within State institutions, such as military camps and places of
detention;
(c) During mandatory military training, 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;
(d) Ensure that all forms of sexual violence are criminalized in national law,
and take appropriate legislative and policy steps to establish complaint mechanisms
and to ensure the prompt and adequate investigation, prosecution and accountability
of perpetrators, including by strengthening the capacity of the criminal justice system;
(e) Adopt gender-sensitive procedures to avoid reprisals and stigmatization
of survivors of sexual and gender-based violence by, inter alia, establishing special
protection units and gender desks in police stations, and provide rehabilitation and
support services, including safe houses, legal aid resources and health care;
(f) Ensure that national laws and policies comply with the State’s
international human rights obligations and are non-discriminatory by, inter alia,
permitting prosecution of marital rape in all circumstances and abolishing legal
provisions criminalizing consensual same-sex sexual activity.
(h) Reprisals against third parties
126. The commission also recommends that the Government of Eritrea put an
immediate end to the various forms of harassment and reprisals against relatives and
associates of persons accused of wrongdoing.
(i) Killings
127. The commission further recommends that the Government of Eritrea put an
end to extrajudicial killings, including of those fleeing the country.
(j) Accountability
128. The commission recommends that the Government of Eritrea:
(a) Ensure accountability for past and persistent human rights violations
and crimes, including enslavement, imprisonment, enforced disappearance, torture,
and other inhumane acts, persecution, rape and murder, through the establishment of
independent, impartial and gender-sensitive mechanisms, and provide victims with
adequate redress, including the right to truth and reparations;
(b) Ratify and implement the Rome Statute of the International Criminal
Court;
(c) Cooperate with, and accept and implement the decisions of, any
accountability mechanisms.
2. Human Rights Council
129. The commission recommends that the Human Rights Council:
(a) Renew the mandate of the Special Rapporteur on the situation of human
rights in Eritrea, and request the mandate holder to, inter alia, promote and report on
the implementation of the present recommendations, and provide the mandate holder
with the necessary additional human and financial resources;
(b) Bring to the attention of relevant special procedures, for appropriate
action, the human rights violations and crimes identified by the commission in its
reports, including the situation of minorities, such the Kunama and the Afar;
(c) Keep the situation in Eritrea on its agenda, and invite the United Nations
High Commissioner for Human Rights to report periodically on the situation of
human rights;
(d) Transmit the present report to the General Assembly, the Secretary-
General and the Security Council for follow-up on its recommendations;
(e) Support the establishment of a structure by the Office of the United
Nations High Commissioner for Human Rights with a protection and promotion
mandate, in particular to assist in ensuring accountability for human rights violations
in Eritrea, especially where such violations amount to crimes against humanity.
3. Office of the United Nations High Commissioner for Human Rights
130. The commission recommends that the Office of the High Commissioner report
annually to the Human Rights Council and other appropriate United Nations organs
on the situation of human rights in Eritrea, and assist the Government of Eritrea in
the implementation of the recommendations made by the commission, and those made
at the sessions of the Working Group on the Universal Periodic Review and by the
treaty bodies and special procedures.
4. General Assembly
131. The commission recommends that the General Assembly put the human rights
situation in Eritrea on its agenda.
5. Security Council
132. The commission recommends that the Security Council:
(a) Determine that the situation of human rights in Eritrea poses a threat to
international peace and security;
(b) Refer the situation in Eritrea to the Prosecutor of the International
Criminal Court;
(c) Impose targeted sanctions, namely travel bans and asset freezes, on
persons where there are reasonable grounds to believe that the said persons are
responsible for crimes against humanity or other gross violations of human rights.
6. African Union
133. The commission recommends that the African Union establish an
accountability mechanism, under the aegis of the African Union and supported by the
international community, to investigate, prosecute and try individuals reasonably
believed to have committed crimes against humanity.
7. Member States and international organizations
134. The commission recommends that Member States and international
organizations:
(a) 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 the State;
(b) Insist on the implementation of the decision made on 13 April 2002 by
the Eritrea-Ethiopia Boundary Commission on the delimitation of the border;
(c) Keep Eritrea on the agenda of the International Labour Organization
and continue to address the issue of forced labour;
(d) Assist Eritrea in addressing serious legislative and institutional
weaknesses by strengthening its judiciary, establishing independent institutions and
reforming its security sector through bilateral and multilateral development
cooperation, in accordance with the human rights due diligence policy on United
Nations support to non-United Nations security forces;
(e) 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;
(f) 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;
(g) Increase attention and the resources allocated to the situation of human
rights in Eritrea by strengthening engagement with the Government with the aim of
implementing the present recommendations and those made during the sessions of the
Working Group on the Universal Periodic Review and by other human rights
mechanisms.
8. Transnational corporations
135. The commission recommends that transnational corporations operating or
planning to operate in Eritrea conduct human rights impact assessments that
specifically address the possibility that Eritrean contractors will rely on conscript
labour, difficulties relating to freedom of association and expression in Eritrea, and
the absence of financial transparency.
Annex I
Letter dated 7 December 2015 from the commission of inquiry
addressed to the Permanent Representative of Eritrea to the United
Nations
Dear Mr. Ambassador,
Thank you for your willingness to engage with me and my fellow Commissioners on
2 November 2015. I hope we can build on this first encounter and continue the discussion.
As stated during our meeting, I would be grateful for any documentation your
Government may wish to share with the Commission about developments noted by you
during your statement delivered during the interactive dialogue with the Commission at the
Third Committee of the General Assembly on 29 October 2015.
Our Secretariat received with thanks the Penal Code and the Criminal Procedure
Code, and is looking forward to also receiving the Civil Code and its procedural code in
due course.
Furthermore, we are interested in documentation and information about the drafting
of a new constitution, as well as the duration of the national service for current and future
conscripts.
We would also welcome any additional updates and positive developments you
might wish to highlight with regard to the human rights situation in Eritrea since the
finalisation of our first report.
I take this opportunity to reiterate our continued desire to visit Eritrea as stated
during our meeting and in previous correspondence, most recently in my letter of
28 September 2015 to H.E. Mr. Osman Saleh Mohammed, Minister of Foreign Affairs. I
hope that the Government of Eritrea will invite the members of the Commission and its
staff to visit Eritrea, in line with Human Rights Council resolution 29/18.
I look forward to hearing from you in due course. For any clarifications I can be contacted
through the Office of the High Commissioner for Human Rights or via email
(coieritrea@ohchr.org).
I remain,
Yours sincerely,
Mike Smith
Chair
Commission of Inquiry
on Human Rights in Eritrea
His Excellency
Mr. Girma Asmerom
Permanent Representative of Eritrea
Permanent Mission of Eritrea
New York
Annex II
Letter dated 24 February 2016 from the commission of inquiry
addressed to the Minister for Foreign Affairs of Eritrea
Excellency,
I write to you in my capacity as the Chair of the United Nations Commission of
Inquiry on Human Rights in Eritrea.
As requested by the Human Rights Council (HRC), the Commission will present a
written report at the thirty-second session of the HRC in June 2016, and at the seventy-first
session of the General Assembly in September 2016.
I wish to reiterate our continued desire to visit Eritrea as stated in previous
correspondence, most recently my letter to you of 28 September 2015 and the letter of
7 December 2015 to H.E. Mr. Girma Asmerom, Permanent Representative of Eritrea to the
United Nations in New York.
We would be most grateful if the Government of Eritrea would extend an invitation
to members of the Commission and its staff to visit Eritrea, in line with Human Rights
Council resolution 29/18. Such a visit could be organised at any time prior to the
finalisation of our report for the thirty-second session of the HRC.
I look forward to hearing from you in due course. For any clarifications I can be
contacted through the Secretariat of the Commission (coieritrea@ohchr.org).
Please accept, Excellency, the assurances of my highest consideration.
Mike Smith
Chair, Commission of Inquiry
on Human Rights in Eritrea
His Excellency
Mr. Osman Saleh Mohammed
Minister of Foreign Affairs of Eritrea
Asmara
Eritrea