To: The Representatives of Permanent Missions and of Observers states at the UN Human Rights Council, Geneva, Switzerland
20 June 2016
Re: Draft Resolution on the Human Rights Situation in Eritrea dated 15th June 2016
You may by now have received a copy of a draft resolution on the human rights situation in Eritrea dated 15 June 2016 (which we attach for your convenience). We hope that you have been able to consider it and are cognizant that it contains a questionable interpretation of the instruments of the UN system and illustrates little awareness of evidence in recent reports submitted to the Human Rights Council (HRC) by its own appointees, namely, the Special Rapporteur on the situation of human rights in Eritrea and the Commission of Inquiry on human rights in Eritrea.
The draft resolution is wholly inappropriate. It seeks to reject outright the second report of the HRC’s Commission of Inquiry on Eritrea (A/HRC/32/47), and all its contents (Op1), and by doing so, the draft resolution blatantly fails to comply with the very UN HRC’s processes, which it purports to uphold.
The draft resolution begins by reiterating “the primary responsibility of states to conduct investigations into allegations of violations and abuses of human rights and to bring those responsible to justice.” However, this claim is invalidated when the state itself is accused of or proven to be the perpetrator of the violations. In Eritrea, human rights violations by officials and party members are deemed to have been ongoing since 1991, yet no perpetrators have been brought to justice to date. It was to address such contingencies that UN member states endorsed the ‘responsibility to protect’ (R2P) in 2005, under which the international community has a duty to act if a state cannot or will not protect its population from atrocity and crimes.
The draft resolution asserts “Eritrea’s active engagement in the UPR process” (PP9) and applauds the nation’s efforts “to consolidate human rights through the UPR process” (OP15). In reality, there has been no evidence available through UN mechanisms, or reported by UN delegates, of Eritrea implementing any of the main recommendations of either the first or second Universal Periodic Reviews (UPR). Eritrea has only made promises to implement UPR recommendations since 2009. The draft resolution also asserts “the engagement of Eritrea with the Office of the High Commissioner for Human Rights” (PP10); however, after three years and three missions by the office of High Commissioner, this channel, remains in a fragile state of infancy, and there is no discernible evidence of real progress.
In addition, a reported recent visit to Sembel prison, the only facility in Eritrea intended for perpetrators of petty crimes where detainees have allegedly an access to visitors, cannot suffice when thousands of citizens are reporting they were held incommunicado for indefinite periods and without due process throughout the country in inaccessible and unofficial penitentiary facilities.
Similarly, there is no basis on which to justify the resolution’s proposed recognition of “Eritrea’s constructive engagement on human rights” (Op3) as there is either tenuous or no evidence of compliance with other treaty bodies’ recommendations.
The draft resolution “recognises the need for cooperation and genuine dialogue” (PP4); yet, such dialogue is precisely what has been refused in Eritrea’s responses to its UPRs, and to reports from the UN Special Rapporteur and the Commission of Inquiry since the time the HRC setup these mechanisms. Requests from UN bodies and mandate holders for permission to visit Eritrea have either met with no answer or with clear and public refusals. To date only selected UN officials have been allowed to visit the country, and most do not assess the human rights situation in the country. It is therefore inappropriate for the resolution to “welcome Eritrea‘s (general) invitation” to UN thematic mandate holders and treaty bodies to visit Eritrea”. No country should pick and choose among thematic mandate holders to eventually invite them for visits while denying access to the country’s specific mandate holder, and to other special procedure mandates that are mechanism of the HRC, including the COI.
The draft resolution “reaffirms the obligation to promote and protect human rights.” (PP2). However, this obligation cannot be fulfilled simply by tabling new legislation or “publishing new Civil and Penal Codes and their procedures and the holding awareness campaigns for the public, government officials and law enforcement agencies (PP7). Nor is it sufficient for Eritrea to accede to, sign and ratify international conventions without clear evidence that these have been implemented in full across the nation, and there is a huge gulf between rhetoric and practice.
Moreover, as was outlined in the Commission of Inquiry’s latest report there is conflicting information regarding the status of these recent set of laws. Of the four new pieces of legislation issued in March 2015, “only the penal code includes a provision regarding its entry into force”, namely, once it is published in the Official Gazette. The civil code, civil procedure code and criminal procedure code contain no such provision. In addition, article 5 of the Criminal procedure code imposes a duty to “follow the constitution”, although Eritrea has not yet implemented its 1997 constitution or drafted a new one. Legislation has no legitimacy or ability to be implemented outside the framework of a constitution, which is the only comprehensive framework founding the principles of the political legitimacy of the state and the limitations of its powers.
There has been no evidence provided by Eritrea regarding which body or individual, acting under which mandate and which legitimacy, has been tasked with the elaboration of a new constitution. This information has not been made public. Thus while it would be appropriate to “acknowledge” an “initiative to draft a new constitution” (OP9) if the resolution involved a state with a functioning constitution and the rule of law; it would not be appropriate for the international community to acknowledge any such progress in the case of Eritrea which, for over 18 years, has operated arbitrarily without a functioning constitution.
While the international community may indeed welcome “Eritrea’s accession to most international and regional human rights instruments including its recent signing and accession to the Convention against Torture” (PP6), evidence gathered by the Special Rapporteur and Commission of Inquiry indicates that torture continues to be systematic and widespread, and appears to be condoned by both the military and security apparatus. A UN resolution could indeed “Urge Eritrea to investigate all allegations of human rights violations and abuse and to bring those responsible to justice;” (Op7); however, unless the Eritrean government is demonstrably willing to take decisive and discernible action to implement recommendations such as those concerning torture (a recommendation repeated frequently during each UPR), there would be no credible grounds for including such a clause.
Similarly, a resolution which “notes steps taken by Eritrea in implementing its commitment under [the] Convention on the Rights of the Child and international Labour Conventions (PP8) contradicts the evidence of the use of children (under the age of 18) in the military conscription programme, the use of conscript soldiers, including children, as compulsory labourers in excavation industries and government and foreign owned companies, and the imprisonment of children in adult facilities due to alleged infractions of parents, where some are reported to have died.
Human Rights Concern-Eritrea (HRCE) and Christian Solidarity Worldwide (CSW) considers it essential that this inaccurate and tendentious resolution meets with robust and critical analysis and revision from all members of the HRC who recognise the validity of the founding principles of the UN and international legal standards, implemented through the reports of both the UN Special Rapporteur on the situation of human rights in Eritrea and the Commission of Inquiry on human rights in Eritrea.
Our plea, your Excellency, is that you refuse to accept this resolution as currently worded, as it will not provide real protection of the human rights of the people of Eritrea.
Human Rights Concern – Eritrea (HRCE)
Dr Khataza Gondwe
Christian Solidarity Worldwide (CSW)
Draft Resolution Tabled by the Eritrean Government
15 June 2016
Draft Resolution on the Human Rights Situation in Eritrea
The Human Rights Council,
PP 1. Guided by the Charter of the United Nations, the Universal Declaration of Human Rights, International Covenants on Human Rights and other relevant instruments on human rights,
PP 2. Reaffirming that all States have an obligation to promote and protect human rights and fundamental freedoms enshrined in the Charter, the Universal Declaration of Human Rights, the International Covenants on Human Rights and other relevant instruments on human rights to which they are party,
PP 3. Reaffirming further that it is the primary responsibility of states to conduct investigations into allegations of violations and abuses of human rights and to bring those responsible to justice,
PP 4. Recalling General Assembly resolution 60/251 of 15 March 2006 and its annexes 5/1 and 5/2, which inter alia: stressed the importance of ensuring universality, objectivity and non-selectivity in the consideration of human rights issues, and the elimination of double standards and politicization; and recognized that the promotion and protection of human rights should be based on the principles of cooperation and genuine dialogue aimed at strengthening the capacity of Member States to comply with their human rights obligations for the benefit of all human beings;
PP 5. Emphasizing the primacy of the Universal Periodic Review (UPR) process for the promotion and protection of human rights,
PP 6. Welcoming Eritrea’s accession to most international and regional human rights instruments including its recent signing and accession to the Convention against Torture, Other Cruel, Inhuman or Degrading Treatment or Punishment, the UN Convention against Transnational Organized Crimes and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, and its continued engagement and submission of periodic reports to the respective treaty bodies,
PP 7. Noting the publishing of new Civil and Penal Codes and their procedures and the holding of awareness campaigns for the public, government officials and law enforcement agencies on the provisions of the new codes,
PP 8. Noting also the steps taken by Eritrea in creating inter-sectoral coordinating mechanisms on implementing its commitment under UPR, Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Convention on the Rights of the Child (CRC), Labour Conventions, as well as the rights of persons with disabilities and addressing the challenges of irregular migration,
PP 9. Noting with appreciation Eritrea’s active engagement in the UPR process as well as the recently signed agreement with the United Nations in support of implementing the UPR recommendations and the mainstreaming of human rights in Eritrea,
PP 10. Welcoming the engagement of Eritrea with the Office of the High Commissioner for Human Rights, in areas of strengthening the judicial system, addressing the needs of persons with disabilities and enhancing access to clean water and sanitation,
PP 11. Welcoming also Eritrea‘s invitation to UN thematic mandate holders and treaty bodies to visit Eritrea,
PP 12. Noting the formal request for support by the Government of Eritrea to the United Nations Office on Drugs and Crime (UNODC) to strengthen the criminal justice system, including improvement of the penitentiary system,
PP 13. Recognizing the efforts of the Government in providing affordable and quality health services and free education for its citizenry at all levels, and in particular its achievements in the Millennium Development Goals,
PP 14. Noting the launch by Eritrea of the African Union Campaign on Ending Child Marriage in Africa,
PP 15. Encouraging the active role of the Government of Eritrea to combat irregular migration as well as human trafficking and smuggling in persons, including in the framework of the African Union-Horn of Africa Initiative, the EU-led Khartoum Process and the Valletta Plan of Action,
PP 16. Recognizing the need to promote peace and security among countries in order to ensure sovereignty, territorial integrity, political independence and the enjoyment of human rights and fundamental freedoms,
PP 17. Concerned by the content and recommendations contained in the second report of the UN commission of inquiry on Eritrea (A/HRC/32/47),
OP 1. Rejects the report of the Commission of Inquiry on human rights in Eritrea;
OP 2. Notes the response of the Government of Eritrea to the report of the Commission of Inquiry;
OP 3. Recognizes Eritrea’s development achievements as well as its increasing regional and international engagement, in particular its constructive engagement on human rights;
OP 4. Calls on Eritrea to enhance the promotion and protection of human rights and fundamental freedoms in line with its international obligations and commitments;
OP 5. Further calls on Eritrea to continue its cooperation with the UN Human Rights Council, the Office of the High Commissioner for Human Rights and other relevant bodies, including thematic mandate holders and treaty bodies;
OP 6. Urges Eritrea to expedite the implementation of the recommendations it accepted during its second universal periodic review, to submit mid-term report and to enhance cooperation with the Human Rights Council and the universal periodic review working group during its third cycle;
OP 7. Urges further the Government of Eritrea to investigate all allegations of human rights violations and abuse and to bring those responsible to justice;
OP 8. Calls upon the Government of Eritrea to ensure compliance with the Penal, Civil, Criminal Procedure and Civil Procedure Codes of May 2015 and ensure they are consistent with international human rights standards with a view to strengthening the administration of justice and the rule of law;
OP 9. Acknowledges Eritrea’s initiative to draft a new constitution and urges it to ensure transparency and wide participation in the process as well as conformity to universal human rights standards and the conventions to which Eritrea is a party;
OP 10. Calls on the Government of Eritrea to build upon the achievements of the Millennium Development Goals and to embark into the 2030 Agenda for Sustainable Development;
OP 11. Commends Eritrea for its strong commitment to the promotion and protection of women’s rights and encourages it to take additional measures to promote economic and social empowerment as well as to combat harmful practices such as early marriage and female genital mutilation;
OP 12. Calls on Eritrea to continue its efforts to combat irregular migration and human trafficking, including through the regional and international initiatives;
OP 13. Requests the High Commissioner to expand and consolidate the ongoing engagement with Eritrea and initiate the implementation of technical support to strengthen national institutions, including civil society organizations;
OP 14. Requests all member states to support the Cooperation Agreement of May 2016 between Eritrea and the United Nations to mainstream human rights, focused on the development and promotion of social equality, social services for an adequate standard of life, liberties, administration of justice, constitution, and international cooperation;
OP 15. Decides to support Eritrea to consolidate human rights through the UPR process, the Office of the High Commissioner for Human Rights, thematic-mandate holders and treaty bodies.