A/HRC/32/CRP.1
Distr.: Restricted
8 June 2016
English only
Human Rights Council
Thirty-second session
Agenda item 4
Human rights situations that require the Council’s attention
Detailed findings of the commission of inquiry on human rights in Eritrea[*] [**]
Contents
Page
I. Introduction 5
A. Mandate 5
B. Cooperation with the Commission 5
C. Methodology 5
D. Standard of proof 10
E. Applicable regional and international law 11
II. Written submissions 11
A. Introduction 11
B. Substance of the submissions 12
C. Conclusion on submissions 16
III. Recent developments with respect to the human rights situation in Eritrea 16
A. Post-independence political and economic context 16
B. Recent notable developments 17
C. Current human rights concerns 19
1. Right to participate in public affairs 19
2. Constitution and the rule of law 19
3. Military/national service programmes 20
4. Arbitrary detention, enforced disappearance and torture 24
5. Reprisals against third parties 27
6. Discrimination on religious or ethnic grounds 28
7. Sexual and gender-based violence 30
8. Right to life 32
9. Freedom of expression, assembly and association 34
10. Nakfa (currency) exchange programme 35
11. Financial transparency and corruption 37
12. New legislation 41
IV. Crimes against humanity 43
A. Introduction 43
B. The general requirements 44
C. Crimes against humanity in Eritrea 46
1. The general requirements as they apply in Eritrea 46
2. Enslavement 47
3. Imprisonment or other severe deprivation of physical liberty 59
4. Enforced disappearances 62
5. Torture 65
6. Other inhumane acts 68
7. Persecution 70
8. Rape 73
9. Murder 78
V. Accountability 80
A. Institutional accountability 80
B. Individual accountability 81
C. Accountability mechanisms 82
VI. Conclusion and recommendations 83
A. Conclusions 83
B. Recommendations 83
Annexes
I. Letter dated 7 December 2015 from the Commission of Inquiry addressed to the Permanent Representative of Eritrea to the United Nations 89
II. Letter dated 24 February 2016 from the Commission of Inquiry addressed to the Minister for Foreign Affairs of Eritrea 90
III. Letter dated 7 June 2016 transmitting an advance edited version of the report of the Commission of Inquiry to President Isaias Afwerki 91
IV. Map indicating the location of places of detention in Eritrea identified by the Commission of Inquiry on Human Rights in Eritrea 93
Acronyms
ACHPR African Charter on Human and Peoples’ Rights
CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
CEDAW Convention on the Elimination of All Forms of Discrimination against Women
ICERD International Convention on the Elimination of All Forms of Racial Discrimination
CRC Convention on the Rights of the Child
EEBC Eritrea-Ethiopia Boundary Commission
ELF Eritrean Liberation Front
EPLF Eritrean People’s Liberation Forces (then Front)
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia
OHCHR Office of the United Nations High Commissioner for Human Rights
PFDJ People’s Front for Democracy and Justice
SCSL Special Court for Sierra Leone
SGBV sexual and gender-based violence
UNHCR Office of the United Nations High Commissioner for Refugees
UN-Women United Nations Entity for Gender Equality and the Empowerment of Women
WYDC Warsai Yikealo Development Campaign
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.
8. The Commission considers the scope of its new mandate and competence as follows:
• Competence ratione personae: the Commission has only investigated alleged violations that are imputable to Eritrean authorities. This means violations directly committed by public officials of Eritrea; or committed at their instigation or with their consent or acquiescence; or where the relevant authorities have abstained from preventing, investigating and/or prosecuting those responsible for violations of fundamental rights.
• Competence ratione loci: the geographic scope of the investigation is the full territory of Eritrea, including the border zones and Eritrean maritime zones.
• Competence ratione temporis: the temporal scope of the investigation covers the period from May 1991 until the present day.
• Competence ratione materiae: the Commission has investigated 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.
9. In its work, the Commission has been at all times guided by the principles of independence, impartiality, objectivity, transparency, integrity, and the principle of “do no harm”.
10. The protection of witnesses and victims’ continued to be a central concern for the Commission. Almost all victims and witnesses who spoke with the Commission feared reprisals by Eritrean authorities, either against themselves or their family members in Eritrea. The Commission has worked to ensure the protection of victims, witnesses and other sources of information at all stages of its work and in the future, in accordance with standard policies of the Office of the High Commissioner for Human Rights (OHCHR).
11. As the Commission’s ability to physically protect witnesses is limited, it remains the primary responsibility of the governments in which witnesses reside to protect those who have cooperated with the Commission.
12. All information gathered by the Commission in the course of its investigations is confidential, unless witnesses have specified otherwise. The Commission took all necessary measures and precautions to protect the confidentiality of information and the identity of the individuals who provided information to the Commission and/or supported its work. For protection purposes, the names of victims, witnesses and sources are not mentioned in the report, nor are any other details that might reveal identities.
13. At the conclusion of the Commission’s work, all the information will be moved on to the official United Nations archive system, where contents will be classified as “unclassified”, “confidential” or “strictly confidential.” All victim and witness interviews will be classified as “strictly confidential.” Unless a witness has provided explicit and informed consent to share his/her information, it will not be shared, including with any other entity, including with other sections of OHCHR; United Nations human rights mechanisms; international judicial mechanisms such as the International Criminal Court (ICC); national judicial mechanisms; and member states.
14. During its two terms, the Commission has relied primarily on information provided by victims and witnesses in confidential interviews. Consistent with the practice of United Nations commissions of inquiry and other fact-finding bodies without access to the territory where the alleged violations occurred, the Commission visited neighbouring and other countries to conduct interviews with those who have experienced or witnessed human rights violations in Eritrea. Where necessary, it also conducted interviews via audio or video communication. Interviews were conducted in Australia, Canada, Djibouti, Ethiopia, France, Germany, Italy, the Netherlands, Norway, Sweden, Switzerland, the United Kingdom, and the United States of America. The Commission also spoke with experts, diplomatic staff of third countries currently working in Eritrea and foreign journalists who recently visited Eritrea.
15. In both reporting cycles, the Commission issued calls for submissions. In this reporting cycle the Commission received close to 45,000 submissions.
16. As the Government of Eritrea has not formally cooperated with the Commission, the Commission has relied wherever possible on statements by the Government of Eritrea as reported on its official website or in the public domain. It has relied extensively on a December 2015 document which is the Government of Eritrea’s official response to a 2011 report by the United Nations High Commission for Refugees (UNHCR) on the human rights situation in Eritrea entitled “UNHCR Eligibility Guidelines: Factual Findings or Recycled Defamation,”[2] as well as the government’s official response to the Commission’s first report entitled “Commission of Inquiry Report: Devoid of Credibility and Substance.”[3] The first document was sent to the Commission by the Permanent Mission of Eritrea to the United Nations in New York, and both are available on the Government website, Shabait. Eritrean officials outside the country in a position to relay official views provided a copy of Eritrea’s new penal code.
17. As set out in paragraph 15 of Human Rights Council resolution 26/24, the Commission engaged with a number of United Nations entities to obtain relevant information and support to conduct its investigations. Of the 19 UN entities contacted, six responded, including two substantive replies.
18. The Commission appreciates the support received from OHCHR, the United Nations Entity for Gender Equality and the Empowerment of Women (UN-Women), and UNHCR. All three organizations fully respected the independence and integrity of the Commission.
Gender integration in the work of the Commission
19. The Commission integrated a gender perspective and analysis into its work. It decided to devote specific attention to sexual and gender-based violence (SGBV), including violence against women and girls, and to assess the gender dimension and impact of other violations. In this context, the services of a gender advisor/SGBV expert-investigator were made available to the Commission by UN-Women. The SGBV expert provided advice, training, and guidance to the Commission.
20. In addition to the challenges already mentioned in its first report,[4] the Commission faced further obstacles to the investigation of sexual and gender-based violence, in particular sexual violence suffered by women and girls, as well as by men and boys.
Sexual violence suffered by women and girls
21. Collecting evidence on cases of sexual violence suffered by women and girls in Eritrea proved difficult due to cultural, social, and religious beliefs associated with marriage and sexuality. Victims’ reluctance to disclose information stems from the trauma and general shame they feel as well as the stigma which attaches to them if the harm they have suffered is known.[5] Indeed, many women mentioned the cultural emphasis on their virginity, chastity or monogamy as one of the reasons to fear speaking about sexual violence. As a woman’s virginity and chastity are highly regarded in much of Eritrea, many victims of rapes are unable to marry and therefore prefer to remain silent.[6] On top of the trauma, “[t]he honour system causes additional shame”.[7] As a result, in some instances, women and girls who were raped committed suicide.[8] The Commission also heard evidence that, within some ethnic or religious groups, if a woman is raped, she is rejected by her community.[9] Finally, women and girls suffer even more stigma if they have a child from the rape.[10] For all these reasons, rape is an underreported crime in Eritrea and most of the victims of such acts live in a culture of silence.[11]
Strategies to overcome such challenges
22. In order to identify and contact survivors and eyewitnesses of sexual and genderbased violence willing to provide evidence, the Commission established contact with various intermediaries, including female intermediaries. The Commission stressed its desire to speak with women and girls in order to highlight their experiences in its report. In particular, the Commission contacted female activists, women’s associations, networks, and groups, as well as care providers working with Eritrean women and male and female survivors of sexual violence. The Commission also stressed to male representatives of some groups, such as refugees and ethnic minorities, its willingness to interview women and girls of their groups to ensure that their voices are equally represented.
23. When conducting interviews with survivors of sexual and gender-based violence, efforts were made to identify male and female interpreters with experience in interpreting for survivors of sexual and gender-based violence and/or victims of trauma. A glossary of terms relating to sexual violence in English and Tigrinya was also made available to interpreters.