The classification of international crimes ongoing in Eritrea

(1)

MASTER THESIS

THE CLASSIFICATION OF INTERNATIONAL CRIMES

ONGOING IN ERITREA

Author: Lola Siran

Supervisor: Kevin Jon Heller

lolasiran@yahoo.fr 12815802

International and European Law: Public International Law LLM 31 August 2020

(2)

LLM European and International Law – Public International Law Academic year 2019-2020

(3)

Abstract

This thesis studies the human rights violations ongoing in Eritrea. As such, this thesis aims at assessing whether the said practices result in international crimes under international law, notably crime against humanity and modern slavery. In order to do so, the thesis first provides an overview of the human rights violations ongoing in Eritrea. It looks at the indefinite forced conscription, arbitrary arrests, as well as violations of the freedoms of expression, conscience and movement. It then assesses whether these human rights violations meet the threshold of international crimes, including crime against humanity and modern slavery. Therefore, it intends to study the definitions of crime against humanity and modern slavery in the light of the human rights violations in Eritrea as defined in the first part. The thesis is concluded by a final assessment of the current situation in Eritrea on an international law point of view and by concluding statements and recommendations.

(4)

Table of Contents

Introduction ... 4

Section 1: Overview of the international human rights violations ongoing in Eritrea ... 4

1. Indefinite forced conscription ... 4

1.1 National service in Eritrea ... 10

1.2 Minors in the Eritrean national service ... 10

1.3 Women in the Eritrean national service ... 10

2. Arbitrary arrests and violation of the right to a fair trial ... 10

2.1 In the law ... 10

2.2 Deserters ... 10

2.3 Collective punishment ... 10

2.4 Prison conditions ... 10

3. Violations of the freedoms of expression and conscience ... 10

3.1 Freedom of the press and journalists ... 10

3.2 Freedom of conscience and religion ... 10

4. Violations of the right of movement ... 10

4.1 Restrictions on the freedom of movement within the country ... 10

4.2 Restrictions on the freedom to leave the country ... 10

4.2.1 The lack of access to exit visas ... 10

4.2.2 The shoot to kill policy at the border and imprisonment of people attempting to flee .... 10

Section 2: Legal classification of the international crimes ongoing in Eritrea ... 15

1. Classification of the situation in Eritrea as modern slavery ... 15

1.1 The prohibition of slavery ... 10

1.2 Whether indefinite conscription amounts to forced labour ... 10

1.2.1 The involuntary nature of the works and services exacted under the national service .... 10 1.2.2 The exaction of labour or services under the menace of penalty

(5)

1.2.3 The use of labour and services as a means of political coercion, education or as a method of mobilising and using labour for purposes of economic development and labour discipline ... 10 1.3 Whether the exemptions under the Forced Labour Convention can be applied to the

Eritrean national service

2. Classification of the situation in Eritrea as crimes against humanity

Concluding Statement ... 39

Introduction

Eritrea formally gained its independence from Ethiopia in 1993 after a thirty-year war, referred to as “independence struggle”1_{. Whilst there was a hope for democracy across the Eritrean}

population when it became independent, this hope has washed away throughout the years and ended in 2001, when the government arrested journalists, closed all independent media, restricted allowed religions and proceeded to a mass conscription2_{. Eritrea’s president, Isaias}

Afwerki, was never elected and has been in power since Eritrea’s independence, in 19933. No election has been organised since then. It is today said to be one of the most authoritarian regimes in the world4 and is often referred to as an “open air prison”5. The Eritrean government is isolating the country and has established extreme restrictions on the operation of international nongovernmental organisations, thereby rendering external and humanitarian help close to non-existent6. The human rights crisis ongoing in Eritrea is largely unknown and ignored by the rest of the world7. Whilst Eritreans constitute the third biggest group of people crossing the

1_{Human Rights Watch (HRW), Service for Life: State Repression and Indefinite Conscription in}

Eritrea, April 2009

2_{Cambridge University Press, Gaim Kibreab, Forced labour in Eritrea, Journal of Modern African}

Studies, 47, I (2009), pp. 41-72

3_{Gaim Kibreab, Critical Reflections on the Eritrean War of Independence: social capital, associational}

life, religion, ethnicity and sowing seeds of dictatorship (2008)

4_{Switzerland: State Secretariat for Migration (SEM), National Service and State Structures in Eritrea,}

28 June 2012

5_{Le Monde, L’Erythrée, une prison à ciel ouvert (May 2013)}

7_{Amnesty International, Just Deserters: Why Indefinite National Service in Eritrea Has Created a}

(6)

Mediterranean Sea to reach Europe, the coverage of Eritrea in the news remain very limited8. According to the United Nations High Commissioner for Refugees (UNHCR) at the end of 2014, 5,000 people were fleeing Eritrea every month9. Yet, no legal action is pending against the Eritrean president and governmental officials, and no concrete sign of change can be detected.

Numerous human rights violations can be counted in Eritrea, and the question arises as to what legal routes could be used to end the ongoing international crimes committed by the Eritrean government.

To answer this question, the ongoing human rights violations will be set out in the first part of this thesis, including indefinite forced conscription, arbitrary arrests, violations of the freedoms of expression, conscience and movement. It will then be determined whether these human rights violations amount to international crimes, especially to crimes against humanity and modern slavery.

SECTION 1 - Overview of the international human rights violations ongoing in Eritrea

1. Indefinite forced conscription

1.1. National service in Eritrea

According to Eritrean national law, all Eritrean nationals, irrespective of their gender, aged between eighteen and fifty years old are required to take part in an active national service10, in theory and officially consisting of six months military training and twelve months of “active military service and development tasks in military forces for a total of 18 months11”. The first six months of national service include an intensive military and physical training, as well as a political socialisation and indoctrination, whilst the twelve months development work are done

8_Ibid

9_{UNHCR, Number of Eritreans seeking asylum in Europe soars over figures for last year, (November}

2014)

10_{Unofficial English Translation of the Gazette of Eritrean Laws, 1995-10-23, Vol. 5/1995, No. 11, 16}

pp; National Service Proclamation No. 82/1995, Article 8

(7)

under the auspices of the Ministry of Defences or other ministries, regional administrations or the firms of the ruling party, the Eritrean People’s Front for Democracy and Justice (EPFDJ)12.

The only exemptions allowed concern people who fought during the liberation struggle13 and citizens suffering from disability such as invalidity, blindness and psychological derangement.14 However, these exemptions are not permanent and people may still be conscripted into national service if their health is said to have improved.15 Besides, conscientious objectors, including Jehovah’s Witnesses, are not exempted from national service and are required to take part16.

The first military training took place in 1994 and, until 1998, the first four cohorts were demobilised after eighteen months, in accordance with the law17.

However, in 2002, after the end of the border war opposing Eritrea and Ethiopia, the “Warsai Yekalo Develoment Campaign” (WYDC) was launched by the Eritrean government18_{and was}

approved by the cabinet.19_{This campaign extends the duration of the national service}

indefinitely and provides for the deployment of conscripts to posts in the civil service, national and local administrations and state-owned companies, in addition to the military20_{. Since then,}

no demobilisation of conscripts took place.21

12_{Gaim Kibreab, The Open-Ended Eritrean National Service: The Driver of Forced Migration (October}

2014)

13_{Unofficial English Translation of the Gazette of Eritrean Laws, 1995-10-23, Vol. 5/1995, National}

Service Proclamation No. 82/1995, Article 12

14_{Ibid, Article 14(5)}

2014)

Studies, 47, I (2009), pp. 41-72

Generation of Refugees (2015)

(8)

The Eritrean government justifies the national service as an instrument to unite the country and build the Eritrean identity, Eritrea counting nine ethnic groups and languages22. More importantly, the Eritrean president claims that an indefinite conscription is necessary to defend the country, arguing that it faces the constant threat of aggression by Ethiopia given the “no war no peace situation”23 and the undermarcated border with Ethiopia.24

The consequences of escaping conscription are extreme. People escaping the military service of deserting are noticeable since they do not possess a demobilization paper. This entails the inability to possess land or to be granted ration cards. It also entails the inability to access exit visas or passports. Further, people not possessing demobilizations papers are extremely vulnerable, in the sense that they are constantly at risk of being arrested and detained during random round-ups and controls by the military or the police25.

In Eritrea, a large proportion of the adult population is conscripted into the national service26. Eritrea is said to be one of the most militarised country in the world.27_{Exact statistics are}

difficult to find. However, in 2010, the commander of the Sawa military training, mentioned that 400,000 people had been conscripted in the last sixteen years, suggesting that roughly 25,000 people are conscripted every year, out of a population of less than 6,000,00028_{. Between}

1994 and 2014, around 9.2 percent of the total population has been conscripted.29 Another number was given at the think tank Chatham House in 2007, where it was estimated that between 350,000 and 420,000 Eritreans had served within the national service.30

22_Ibid

25_{United Kingdom: Home Office, Country Policy and Information Note – Eritrea: National service and}

illegal exit (October 2016)

26_{Amnesty International, UN Human Rights Council Twenty-sixth Session, Eritrea – End indefinite,}

Involuntary Conscription to National Service (June 2014)

2014)

28_{Shabait.com (2010) Eritrea Youth Festival in Sawa – 13th – 15th July 2012 Eritrean News, 16 July}

2010. Available at http://allafrica.com/stories/201007191567.html (accessed 12 August 2020) 

2014)

(9)

1.2.Minors in the Eritrean national service

Besides, the educational system is strongly militarized31. In fact, at the end of the 11th Grade, every student is convened to be conscripted and is required to complete his final year – 12th Grade – at the Sawa military camp, where they take part in a demanding military training and conduct some agricultural work.32 As a result, minors only aged fifteen and sixteen have been conscripted33 and many children leave education early in order to escape forced conscription within national service34. This practice contravenes international law. Compulsory recruitment into a state’s armed forces for persons aged below 18 is prohibited by the Optional Protocol to the Convention on the Rights of the Child (OPAC)35, to which Eritrea is a party. Further, child recruitment into the military is also forbidden by the African Charter on the Rights and Welfare of the Child36, to which Eritrea is also a party. Yet, children aged 16 or 17 have been conscripted into national service, have been required to take part in military training and having been subjected to military punishments.37

At the end of the final high school year, every student in Sawa has to take the national matriculation exam, which defines the rest of their life. Students with the highest marks are allowed to pursue higher education, although unable to choose what field they would like to study and randomly assigned in one of the seven government colleges38. The others are forced to remain conscripted within the military service for the rest of their lives39. Colleges within higher education are also fully militarised, and students are regimented in military units and headed by military commanders.40

31_Ibid

33_Ibid

35_{Article 2, Optional Protocol to the Convention on the Rights of the Child on the Involvement of}

Children in Armed Conflict, http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPACCRC.aspx (accessed 21 August 2020) 

36_{Organization of African Unity (OAU), African Charter on the Rights and Welfare of the Child, 11}

July 1990, CAB/LEG/24.9/49 (1990), Articles 3(2) and 22(2).

38_Ibid

39_{Ibid (check other)} 40_Ibid

(10)

1.2.Women in the Eritrean national service

Both men and women are required to take part in the national service41, and women are particularly at risk during the military service. In addition to be required to take part in military trainings and being subjected to extreme military punishments, female conscripts are vulnerable to sexual violence. There have been numerous allegations of a pattern of sexual violence against female conscripts, which are almost systematically subjected to sexual abuse, including rape.42 A possibility of systemic rape practice has been signaled by Eritrean female asylum seekers in Norway, who indicated that abuses included detention, forced heavy labour, forced ingestion of drugs, death threats, degrading treatment, continuous sexual violence and rape, forced pregnancy and sexual enslavement, with women suffering sexual abuse by military leaders.43 Further, female conscripts are punished by detention, torture, humiliation and ill-treatment when refusing to submit to sexual abuse.44

Pregnant women, married women and women with children, are usually exempted from national service, although this exemption is not automatic and must be granted by the relevant ministry.45_{However, this practice is not covered legally, in contrast with people discharged}

from national service. As such, they do not receive the necessary papers that legalise their status outside the service46 and remain at risk during round-ups or random paper checks by soldiers or police officers47. This practice endangers women: many marriages are arranged to avoid conscription and women often get pregnant in order to be demobilized.48 According to UNICEF, 46% of Eritrean women were married before the age of 18 in 2009.49 Although an official statement in 2013 claimed that women were to be demobilized, this has not been

41_{National Service Proclamation 11/1991, Article 2 ; National Service Proclamation 82/1995, Article 8} 42_{Amnesty International, Eritrea: 'You have no right to ask' - Government resists scrutiny on human}

rights, AFR 64/003/2004 (May 2004)

43_{Oxford University Press, Cecilia M. Bailliet, Examining Sexual Violence in the Military Within the}

Context of Eritrean Asylum Claims Presented in Norway (2007)

44_Ibid

45_{United Kingdom: Home Office, Country Policy and Information Note - Eritrea: National service and}

illegal exit (October 2016), Version 4.0e, available at: https://www.refworld.org/docid/5852c5c44.html [accessed 22 August 2020]

46_{European Union: European Asylum Support Office (EASO), EASO Country of Origin Information}

Report. Eritrea National service and illegal exit (November 2016)

47_{United Kingdom: Home Office, Country Policy and Information Note – Eritrea: National service and}

48_Ibid

(11)

implemented at this date50 and it has been suggested that in 2015 a new policy was introduced in the region of Gash Barka requiring women not already conscripted into the national service to report to the local administration for duty, including women with children.51

2. Arbitrary arrests and violation of the right to a fair trial

2.1. In the law

National Eritrean Law

According to Article 17 of the Constitution of Eritrea, people can only be arrested and detained pursuant to due process of law, every person arrested or detained must be informed of the grounds for his arrest or detention and be brought before a court of law52. It is worth noting however that the Eritrean Constitution was never implemented.

Regional Law

Regionally, the African Charter on Human and Peoples’ Rights, in its Article 6, safeguards the right to liberty and to the security of an individual’s person, as well as prohibits arbitrary arrest or detention.53 Eritrea ratified the said Charter in 1999, and is therefore bound by it.

International Law

Article 9 of the International Covenant on Civil and Political Rights, to which Eritrea accessed in 2002 with no reservation, forbids arbitrary arrest and detention, and requires every state party to guarantee the right of everyone to liberty and security of person, as well as the right of access to a court.54 Further, the Universal Declaration of Human Rights of 1948, to which the State of

50_{Amnesty International, Eritrea: 'You have no right to ask' - Government resists scrutiny on human}

rights, AFR 64/003/2004 (May 2004)

52_{Eritrea: Constitution of Eritrea [Eritrea] (May 1997), Article 17}

53_{Organization of African Unity (OAU), African Charter on Human and Peoples' Rights ("Banjul}

Charter"), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58

54_{UN General Assembly, International Covenant on Civil and Political Rights, 16 December}

(12)

Eritrea is signatory, in its Article 3, guarantees the right to everyone to liberty and security of person.55 The prohibition of arbitrary arrest and detention is expressly stated in its Article 9.56

The right to liberty and security entails that no individual should be arbitrarily arrested and detained.57 The Eritrean government is therefore clearly bound by the prohibition or arbitrary arrest or detention, as well as the obligation to guarantee a fair trial and punishments in accordance with the law. Yet, in practice, it is far from respecting these fundamental principles.

2.2. Deserters

According to Article 37(1) of the National Service Proclamation of 1995, desertion is punishable by two years’ imprisonment and a 3,000 Birr fine58. Further, stricter penalties can be applied according to the Eritrean Penal Code of 2015, as Article 119, covering “interferences with military service” allows for a punishment of up to three-year imprisonment59. This offence can be aggravated in the time of war or emergency, pursuant to Article 120.60

The Eritrean government views deserters from the army and expressions of dissent over the indefinite military service as a political issue, with most political prisoners being detained without charge and with no access to court.61 Deserting conscripts are arbitrarily detained, without a trial or the assistance of a lawyer. They remain in prison, often incommunicado, for an indefinite period of time, which depends on the will of their military superiors.62 Numerous testimonies collected by Human Rights Watch indicate that there is no system of military justice, and that conscripts accused of having committed a crime punished under military law were unable to access courts or to see their rights safeguarded by a legal procedure.63

55_{UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III),}

Article 3

56_{Ibid, Article 9}

57_{Human Rights Council, Twenty-ninth session, Agenda item 4, Report of the detailed findings of the}

Commission of Inquiry on Human Rights in Eritrea (June 2015)

58_{Unofficial English Translation of the Gazette of Eritrean Laws, 1995-10-23, Vol. 5/1995, National}

Service Proclamation No. 82/1995, Article 37(1)

59_{Eritrea: Penal Code [Eritrea], 15 May 2015, Article 119} 60_{Ibid, Article 20}

(13)

Conscripts are arbitrarily detained in three main situations: when attempting to escape, when deserting or when over-staying leave – i.e. not going back to their military unit at the end of the days of rest that had been granted to them.64.

In practice, soldiers from the deserter’s unit go his home and takes him back to his unit. Most of the time, the deserter will then be detained without a trial and for an indefinite period of time and in terrible conditions, before being forced to go back to his duty within the national service.65 The UN Commission of inquiry, in 2015, also reported than conscripts enrolled within the national service could be detained, based solely on the suspicion that they were planning on deserting, again, with no trial or access to a court.66

Further, since most of the prisons are underground and secrets, detained conscripts are held incommunicado and are at risk of being tortured or extra judicially executed.67

2.3 Collective punishment

A second important issue relating to the right to liberty and security of the person concerns the practice of collective punishment exercised by the Eritrean authorities. In fact, although under international law individuals can only be deprived of their liberty on grounds and according to procedures established by the law68, the Eritrean government regularly arrests family members in place of someone else. The African Charter on Human and Peoples’ Rights expressly states that “punishment is personal and can be imposed only on the offender” in its Article 7(2).69 It therefore appears that arresting or detaining a person as a form of pressure or reprisal for the act of someone else is arbitrary. 70

68_{UN General Assembly, International Covenant on Civil and Political Rights (December 1966)} 69_{Organization of African Unity (OAU), African Charter on Human and Peoples' Rights ("Banjul}

Charter"), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58, Article 7(2)

(14)

However, it has been reported that family members of conscripts who had tried to desert were arrested in place of them, in order to induce the conscript to surrender himself and to pressure the family member to reveal the conscript’s whereabouts.71 Family members can be detained in place of the conscript, irrespective of their age, gender and possible vulnerability (sickness, pregnancy,…). Freedom House, an American non-governmental organisation, also revealed that the Eritrea authorities require deserters’ families to pay important fines, and detain them if they cannot afford the fine, thereby imposing collective punishment and violating the right to freedom and security of the person.72 Further, the UN Commission of Inquiry denounced the practice of the Eritrean government, severely punishing family members of deserters by arbitrarily detaining them, without formal charges.73 Family members detained are at risk of being tortured in prison and their release is conditional on the deserter returning or on paying a fine of up to 50,000 Nakfa.74

The Eritrean government also uses other pressure mechanisms on the family members of deserters, including conscription into the national service in the place of the deserter, revoking of business licences or seizure of property.75

2.4 Prison conditions

In addition to be arbitrarily arrested and to be unable to access a court and benefit from a fair trial, Eritrean prisoners are held in dramatic prison conditions.

Widespread and systematic use of torture and ill-treatment of prisoners has been reported, including beatings and tying of prisoners’ legs and arms together for long periods of time, according to the will of the prison guards.76 Prisoners are particularly vulnerable to these

72_{Freedom House, Freedom in the World – Eritrea – 2014 (January 2015)}

74_{United Kingdom: Home Office, Country Policy and Information Note - Eritrea: National service and}

(15)

conditions detentions and ill-treatments, since most of them are detained incommunicado and have disappeared.77 There is a large network of underground and secret prisons in Eritrea, rendering the risk of tortures important and the conditions of detention particularly difficult.78 Prisoners are often detained in overcrowded shipping containers, and therefore suffer from extreme temperatures – hot in the day and cold in the night.

Access to medical treatment is inexistent and transfers to a hospital only happen in extreme cases.79 Various testimonies reveal that numerous prisoners died in prison due to torture and lack of medical treatment.80 Prisoners are given very little food and water, and have very little access to shower and toilets.81

Minors are held in the same places as adults, their age not being taken into consideration. Besides, prisoners are not allowed to contact their families. Family members are not made aware of the place of detention of the prisoner, and cannot visit the detained person.

As such, it appears clear that the Eritrean government violates its obligation according to the right to liberty and security of the person. The UN Commission of Inquiry went as far as to conclude that everyone in Eritrea is at risk of being arbitrary arrested or detained.82_{It thereby}

infringes a fundamental human right, to which it is bound according to its national law, regional law and international law.

3. Violations of the freedoms of expression and conscience

Both freedoms of expression and conscience are fundamental international human rights, safeguarded by numerous international instruments. Yet, Eritrea’s violation of international human rights also lies in its gross infringements on freedoms of expression and conscience.

77_Ibid

79_Ibid

rights, AFR 64/003/2004 (May 2004)

(16)

3.1.Freedom of the press and journalists

Article 9 of the African Charter on Human and Peoples’ Rights, to which Eritrea is a party, safeguards the freedom of expression, by stipulating that “every individual shall have the right to express and disseminate his opinions within the law”.83 In addition, Article 19 of the International Covenant on Civil and Political Rights, to which Eritrea is also a State party, expressly states the right of everyone to hold opinions without interference, and the right to freedom of expression, including imparting information and ideas of all kinds.84 Further, Article 19 of the Universal Declaration of Human Rights provides for the right of everyone to freedom of opinion and expression, including the freedom to hold opinions without interference and to impart information and ideas through any media.85

The Constitution of Eritrea itself guarantees the freedom of speech and expression, as well as the freedom of the press and the media, in its Article 19.86_{However, in 1996, the Eritrean}

government introduced a law in relation to the press, both guaranteeing the freedom of the press and providing for censorship, should the country be faced with a “danger threatening public order, security and general peace caused by war, armed rebellion or public disorder or where a natural disaster ensures”.87

In 2001, former government ministers and Eritrean People’s Liberation Front (EPLF) leaders, referred to as the “G15”, were arrested and imprisoned incommunicado after publishing an open letter criticising the Eritrean government.88 In their open letter, the G15 particularly insisted on the necessity for the Eritrean President, Isseyas Afwerki, to respect the constitution and the rule of law, and to hold elections.89 Numerous politicians and journalists were arrested and detained

Charter"), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58, Article 9(2)

84_{UN General Assembly, International Covenant on Civil and Political Rights (December 1966),}

Article 19

86_{Constitution of Eritrea, 23 May 1997, Article 19, available at http://www.unhcr.org/refworld/docid/}

3dd8aa904.html

87_{Government of Eritrea, ‘Proclamation No.90/1996 – the Press Proclamation’, Gazette of Eritrean}

Laws, Vol.6/1996 Asmara, June 10, 1996. Part II, article 1a

(17)

that year, without a trial. They have never been formally charged with an offence and the Eritrean government never revealed where they were detained, nor whether they were still alive.90

The African Commission released a decision in relation to the case of the G-15 prisoners. In a decision Zegveld and Emphrem v Eritrea91, the African Commission held that Eritrea violated article 9 of the African Charter on Human and Peoples’ Rights92 and called for the immediate release of political prisoners. It specified that prolonger incommunicado detention is a form of cruel, inhumane and degrading punishment and treatment, and that Eritrea violated both their rights to liberty and to a fair trial, as well as to their right to freedom of expression.

Since 2001, only governmental media outlet is allowed and all independent media – newspapers, radio, and television channels – are forbidden.93 Eritrea is ranked 178 – out of 180 – in Reporters Without Borders’ world press freedom ranking.94 Reporters without borders further denounces the fact that the Eritrean media is controlled by the Eritrean president and that accessing credible news online in Eritrea is particular difficult, the Internet penetration rate being less than 2%.95_{According to the Committee to Protect Journalists, at least 16 journalists}

are imprisoned incommunicado and 2 journalists have been killed.96_{It also regrets that Eritrea}

is one of the most censored states in the world.97

In 2006, the Eritrean government arrested journalists and other media professionals, without charging them.98 It is worth nothing that an arrest or detention is arbitrary if it is conducted as

90_{Amnesty International, Eritrea: 28 prisoners of conscience detained 18 years ago must be}

immediately and unconditionally released (September 2019)

91_{Liesbeth Zegveld and Messie Ephrem v Eritrea, African Commission on Human and Peoples’ Rights,}

Comm. No. 250/2002 (2003)

Charter"), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58, Article 9

94_{Reports Without Borders, 2020 World Press Freedom Index (2020), available at:}

https://rsf.org/en/detailed-methodology {accessed on 20 August 2020}

95_{Reporters Without Borders, Eritrea (2020), available at: https://rsf.org/en/eritrea}

96_{Committee to Protect Journalists, Eritrea (2020) available at: https://cpj.org/africa/eritrea/}

97_{Committee to Protect Journalists, CPJ joins letter calling on UN Human Rights Council to maintain}

pressure on Eritrea (May 2020)

98_{UN Human Rights Council, The right to freedom of opinion and expression: report of the Special}

(18)

a form of punishment for the legitimate and peaceful exercise of fundamental rights, including freedom of opinion and expression and freedom of religion.99

Thousands of prisoners of conscience are detained because of their non-violent opinions and criticisms of the government.100 According to the UN High Commissioner for Refugees, journalists expressing, or believed to hold, dissenting views against the government are at particular risk of being arbitrarily arrested and detained101, giving rise to a well-founded fear of persecution in the sense of the Refugee Convention.102 In another decision Article 19 v State of

Eritrea103, the African Commission held that the detentions of 18 journalists were contrary to

the African Charter, including arbitrary arrest and detention – guaranteed by Article 6 of the Charter, incommunicado detention – guaranteed by Article 7, cruel and degrading punishment – guaranteed by Article 5, and the freedom of the press, as protected by Article 9. The African Commission particularly called for the lifting of the ban on the private press.

The Eritrean government has not implemented any of the African Commission’s decisions to this date.

It therefore clearly appears that the Eritrean government is violating its international and national obligations relating to the freedom of express and the freedom of the press.

3.2.Freedom of conscience and religion

The right to freedom of religion is guaranteed by Article 18 of the International Covenant on Civil and Political Rights, which states that “everyone shall have the right to freedom of thought, conscience and religion”.104 In addition, Article 27 of the said Covenant provides for

rights, AFR 64/003/2004 (May 2004)

101_{UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the}

International Protection Needs of Asylum-Seekers from Eritrea (April 2009)

102_{UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations,}

Treaty Series, vol. 189

103_{Article 19 v. State of Eritrea, communication 275/2003, adopted at the 41st Ordinary Session in May}

2007 and issued as Annex II to the Report of the Executive Council, Ex. Cl/364 (XI) in June 2007

(19)

the protection of the enjoyment of religious minorities’ culture and religion.105 Similarly, article 8 of the African Charter on Human and Peoples’ Rights guarantees the freedom of conscience, the profession and free practice of religion shall be guaranteed.106 It further specifies that no one be may subjected to measures restricting the exercise of these freedoms. The right to freedom of thought, conscience and religion is also guaranteed by Article 18 of the Universal Declaration of Human Rights.107

In Eritrea, religious activities are regulated by the Proclamation No.73/1995, according to which religion institutions may exercise various activities, provided they do not meddle with politics.108

Both theistic and atheistic beliefs are protected. The freedom of religion covers both the freedom to have a faith, and the freedom to express that faith, by practising or worshipping it, individually or collectively, in public or in private.109 Although the right to express one’s religion is not absolute and can be restricted by law, restrictions must be necessary to protect public safety, order, health, or morals or the fundamental rights and freedom of others to be in accordance with international law. It derives from the International Covenant on Civil and Political Rights that the right to have, adopt, change or repel a religion or faith is absolute and cannot be limited by law, including during a state of emergency.110 Besides, if some religions are made official by the authorities, this does not mean that other religions may be restricted or discriminated against.111

Whilst Eritrea is a State party to both of these conventions, only four religions are tolerated in Eritrea since a brutal crackdown in 2002 : the Eritrean Orthodox Church, Islam of the Sunni

Charter"), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), Article 8

Article 18

108_{Eritrea: Proclamation No. 73/1995 of 1995, Proclamation to legally standardize and articulate}

religious institutions and activities [], 15 July 1995

109_{UN Human Rights Committee (HRC), CCPR General Comment No. 22: Article 18 (Freedom of}

Thought, Conscience or Religion), 30 July 1993, CCPR/C/21/Rev.1/Add.4

Articles 4 and 18

111_{UN Human Rights Committee (HRC), CCPR General Comment No. 22: Article 18 (Freedom of}

(20)

rite, the Eritrean Catholic Church, and the Evangelical Church of Eritrea.112 All other religions are strictly forbidden and individuals following any other faith is at risk of being arbitrarily arrested, detained and tortured.113

One specific group being persecuted by the Eritrean government is the Jehovah’s Witnesses.

Religion persecution: the case of Jehovah’s witnesses

In 1994, Jehovah’s Witnesses were stripped of their civil and political rights, largely because of their refusal to vote in the 1993 referendum on independence and to take part to the military service, the government denying the right to conscientious objection.114 In practice, this means that they have no access to employment, government housing, passports and commercial licences.115 This position has been officially recognised by the Eritrea government in 1995.116 Regularly, Jehovah’s Witnesses are arbitrarily arrested and detained incommunicado, without charge.117

Religion persecution: the case of Pentecostal

In addition, Pentecostal Christians are also persecuted by the Eritrean government. After the 2002 crackdown, several leaders of the clergy of various unrecognised religious groups were arrested by the Eritrean authorities. Reports also mention breaking into homes and churches by security forces, rounding up of Pentecostals, detention and torture.118 According to Compass Direct, more than 3,000 Christians were detained in Eritrea by 2008.119

rights, AFR 64/003/2004 (May 2004)

115_{US Department of State, Country Reports on Human Rights Practices for 2006 (March 2007)} 116_{BBC Summary of World Broadcasts, 4 March 1995, quoting the official Voice of the Broad Masses}

of Eritrea in Tigrinya. 

117_Ibid

(21)

The UN Commission of Inquiry revealed that attacks on unregistered religions were part of a planned policy of the Eritrean government to eliminate unrecognised religious movements, and registration of minorities is in practice impossible.120 Further, leaders and worshipers of unrecognised religious groups are held in extreme conditions and are subjected to torture as well as ill-treatments, partly in order to pressure them to give up their faith.121

Religion is also banned from military service and conscripts are forbidden to practice their faith whilst on the national service.122

It can therefore be concluded that the Eritrean government grossly violates the right to freedom of religion. It is worth noting that in 2004, the United States identified Eritrea as a country of concern because of its violation of the freedom of religion.123

4. Violations of the right of movement

The right of movement, including the right to move within one state’s territory and to exit a state, including his own, is recognised by numerous instruments, both national and international.

The Constitution of Eritrea – although never implemented – provides that everyone has the right to travel within and outside the country.124 Regionally, Article 12 of the African Charter protects the right of each individual to freedom of movement and residence within the borders of a State, as well as the right to leave any country including his own, and to return to his country.125 Similarly, on the international plane, the International Covenant on Civil and Political Rights, in its Article 12, guarantees the right to freedom of movement and to leave any

121_Ibid

123_{United States Commission on International Religious Freedom, USCIRF Annual Report 2005 -}

Eritrea, 1 May 2005

124_{Eritrea: Constitution of Eritrea [Eritrea] (May 1997), Articles 19(7) and 19(8)}

(22)

country.126 Finally, the right to freedom of movement and to leave any country is safeguarded by the Universal Declaration of Human Rights, in its Article 13.127 Restrictions to this right can only be provided by the law, and must be necessary for the protection of national security or other specific interests, as well as consistent with other human rights obligations.

Although Eritrea is a signatory to all these instruments, the right to freedom of movement and to exit any country is largely restricted – if not rendered inexistent - by the Eritrean government.

4.1 Restrictions on the freedom of movement within the country

People in Eritrea are frequently controlled – either by soldiers during round-ups, or at numerous check points. The freedom of movement is largely restricted to individuals holding the necessary papers, which are extremely difficult to obtain, and are arbitrarily granted. The possibility to obtain such papers are dependent on being enrolled into the national service, or being legally discharged – which, in itself, is extremely difficult, especially for men aged between 18 and 50.

Freedom of movement within the country is strongly restricted through a system with no legal basis, relying on identity documents, travel permits, identity checks and checkpoints.128 People cannot travel outside their zone of residence or employment, unless they hold a travel permit, which necessitates identity documents. Obtaining a travel permit is largely conditioned to fulfilling national service obligations. When not conscripted into the national service, the granting of a travel permit is awarded at the discretion of the local administration. Travel permits are only delivered for very specific reasons, including family visits or medical reasons.

Even when in possession of a travel permit, this only grants a limited freedom of movement as the permit only enable to travel to the destination it indicates, using a direct itinerary specific on it and for a duration expressly mentioned.

Article 12

Article 13

128_{UN Office of the High Commissioner on Human Rights, Report of the detailed findings of the}

(23)

If unable to provide the necessary travel permit and identity documents, individuals are at risk of being arrested and detained, or sent back to their military unit in the case of conscripts.129

4.2 Restrictions on the freedom to leave the country

Under Eritrean national law, a valid travel document, a valid exit visa and a valid international health certificate are required in order to leave Eritrea legally, and individuals must cross the border at a specific border control point.130 Violations of these rules and attempts to cross the border illegally are punishable by a term of imprisonment of up to five years or a fine.131 Further, according to Article 37(3) of the Proclamation on National Service of 1995, being eligible for compulsory service constitutes an aggravating factor.132

4.2.1. The lack of access to exit visas

Due to the high number of people fleeing the country, exit visas are rarely granted for young people eligible for national service.133_{Minors just aged 14 are usually denied exit visas, on the}

basis that they approach the age of conscription or that their parent did not pay the income tax required for all nationals living abroad.134_{The UN Commission of Inquiry mentions a general}

travel ban on children.135Exit visas are only granted to men aged over 54 and women aged over 47, which corresponds to the ages above which people are no longer eligible to national service, unless they have been demobilised or exempted from the national service.136

Commission of Inquiry on Human Rights in Eritrea, A/HRC/29/ CRP.1, 5 June 2015

130_{Proclamation No. 24/1992 issued to regulate the issuing of travel documents, entry and exit visa from}

Eritrea, and to control residence permits of foreigners in Eritrea (April 1992), Article 10

132_{Eritrea, Proclamation on National Service No. 82/1995. 23 October 1995, Article 37(3)}

134_{US State Department, Bureau of Democracy, Human Rights, and Labor, Country Reports on Human}

Rights Practices – 2004: Eritrea (February 2005)

Commission of Inquiry on Human Rights in Eritrea, A/HRC/29/ CRP.1, 5 June 2015

(24)

Besides, exit visas are also denied if another family member has left the country and has not fulfilled its obligations relating to the national service

As such, the vast majority of people leaving the country have no other choice but to do it illegally, often on foot.

4.2.2. The shoot to kill policy at the border and imprisonment of people attempting to flee

A shoot to kill policy is ordered at the border with Ethiopia, meaning soldiers guarding the border are told to shoot any person trying to exit the country without permission.137 Although the shoot to kill policy is still in place, it is not followed systematically by the soldiers at the border. However, borders troops still shoot at people trying to escape, usually at people’s legs in order to stop them and arrest them.138 It remains that some statements reported the killing of 40 people at the border whilst trying to escape in 2014, suggesting that the shoot to kill policy remains applied in some places or by some border troops.139

Individuals apprehended at the border trying to flee the country are arrested, as confirmed by the Eritrean government itself.140_{Deserters are returned to their military unit and are imprisoned}

in the unit’s prison.141 The duration and place of detention are arbitrarily decided by the military, and there might be important differences between the punishments imposed to different persons, which vary considerably. Being imposed by the military and not by the courts, punishments for attempted exit of the country are thus arbitrary, and people are often held

Commission of Inquiry on Human Rights in Eritrea – A/HRC/32/ CPR.1, 8 June 2016, pp. 15, 32-33, 78-79.

Commission of Inquiry on Human Rights in Eritrea – A/HRC/32/ CPR.1, 8 June 2016, pp. 33, 79.

140_{Department for Immigration and Nationality, Asmara. Interview 29 February 2016; Yemane}

Gebremeskel, Minister of Information, Asmara. Interview 11 March 2016; Yemane Gebreab, Head of Political Affairs, People’s Front for Democracy and Justice, Asmara. Interview 11 March 2016.

(25)

incommunicado, in military prisons.142 After being apprehended at the border, individuals are handed over to the national security, which proceeds to an interrogation. Torture and ill-treatments are common whilst in detention and during these interrogations.143

Children found with their parents trying to cross the border are detained with their parents, irrespective of their age and in the same cells as the other adults. Unaccompanied minors are also detained if found trying to flee the country illegally.144

The freedom of movement and to exit one’s country is therefore extremely restricted by the Eritrean government, thereby violation its international and national commitments.

SECTION 2 - Legal classification of the international crimes ongoing in Eritrea

Given the numerous human rights violations ongoing in Eritrea, the question arises as to whether these violations give rise to international crimes.

The first question which will be assessed in the second section of this thesis is whether the indefinite conscription to national service amounts to modern slavery.

1. Classification of the situation in Eritrea as modern slavery

1.1 The prohibition of slavery

The prohibition of slavery is absolute and can be found both in Eritrean law and in International law.

Article 16 of the Eritrean Constitution provides that no person shall be held in slavery or servitude nor shall any person be required to perform forced labour not authorised by law.145

Commission of Inquiry on Human Rights in Eritrea, A/HRC/29/ CRP.1, 5 June 2015, pp. 133, 298

(26)

In its Article 8, the International Covenant on Civil and Political Rights prohibits slavery and forced or compulsory labour.146 It is worth nothing that paragraph 3(c) of this article states that forced or compulsory labour does not include work required of a person detained in consequence of a lawful order of a court, any service of a military character, nor any service exacted in cases of emergency or calamity threatening the life of well-being of the community. Further, Article 6 of the International Covenant on Economic, Social and Cultural Rights guarantees the right to work, including the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts.147

The prohibition of slavery can also be found in the Universal Declaration of Human Rights, in its Article 4.148 Regionally, Article 5 of the African Charter states that all forms of exploitation and degradation of man are prohibited, particularly slavery and slave trade.149 In addition, the Year Book of the International Law Commission of 1980 stated that the prohibition of forced or compulsory labour constitute a peremptory norm of international, meaning all States are bound by it.150_{All states are therefore prohibited to exact forced or compulsory labour,}

including Eritrea.

It is worth noting that, under international law, forced or compulsory labour is defined as a form of modern slavery.151

146_{UN General Assembly, International Covenant on Civil and Political Rights, 16 December}

1966, United Nations, Treaty Series, vol. 999 (December 1966), Article 8

147_{UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16}

December 1966, United Nations, Treaty Series, vol. 993, p. 3, Article 6

Article

Charter"), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), Article 4

150_{Yearbook of the International Law Commission, Volume II Part Two, Report of the Commission ot}

the General Assembly on the work of its thirty-second session, A/CN.4/SER.A/1980/Add.1 (Part 2) (1980)

151_{League of Nations, Convention to Suppress the Slave Trade and Slavery, 25 September 1926, 60}

LNTS 253, Registered No. 1414, Article 5; International Labour Organization (ILO), Convention Concerning Forced or Compulsory Labour, 28 June 1930, C029; International Labour Organization (ILO), Abolition of Forced Labour Convention, C105, 25 June 1957, C105

(27)

Eritrea is a party to all the instruments mentioned above. Yet, the indefinite conscription into national service raises serious concerns in relation to the prohibition of slavery and forced or compulsory labour.

1.2 Whether indefinite conscription amount to forced labour

According to the Forced Labour Conventions and ILO Convention 29152, the essential criteria when assessing whether a situation amount to forced labour is the extent to which:

i. The works or services are exacted involuntarily

ii. The exaction of labour or services takes place under the menace of penalty; and

iii. These are used as a means of political coercion, education or as a method of mobilising and using labour for purposes of economic development, as well as means of labour discipline.

These three elements will therefore be assessed in turn, in order to determine whether the indefinite forced conscription into the national service in Eritrea constitutes modern slavery under international law.

1.2.1 The involuntary nature of the works and services exacted under the national service

Eritreans constitute one of the top nationalities reaching Europe through the Mediterranean Sea, and thousands of Eritreans flee their country every month.153 After completing the six months of military training, national service conscripts are indefinitely deployed in activities, as decided by the Eritrean authorities.154

152_{International Labour Organization (ILO), Abolition of Forced Labour Convention, C105, 25 June}

1957, International Labour Organization (ILO), Convention Concerning Forced or Compulsory Labour, 28 June 1930, C029 Article 2(1)

153_{Amnesty International, Eritrea: 20 years of Independence, but Still no Freedom (2013)}

(28)

When interviewed, the vast majority of people who had escaped Eritrea mentioned the indefinite conscription into national service as the reason of their fleeing.155 Further, although statistics are very hard to obtain regarding Eritrea due to the total absence of independent media, numerous conscripts are regularly arrested and detained for deserting the national service. An important number of conscripts and draft evaders also flee Eritrea, despite the shoot to kill policy applied at the border.156 Notably, an important number of Eritrean minors approaching the age of conscription flee the country and seek asylum in third countries.157 It is worth nothing that the vast majority of the people escaping Eritrea are either within or approaching the age of conscription. For instance, 90% of the Eritrean seeking asylum in the United Kingdom between 2001 and 2007 were aged 34 years old or below.158

Further, the Eritrean authorities regularly organise random round-ups, where an important number of soldiers surround a village or a town, and proceed to identity checks and arrests of deserters and individuals in age of being conscripted, in order to force them into the national service.159_{Draft evaders and deserters, when arrested, are detained, tortured, and forcibly}

returned into the national service, which is regarded as persecutory.160

This therefore clearly shows the involuntary nature of the indefinite conscription into the national service, including the works and services exacted under it.

1.2.2 The exaction of labour or services under the menace of penalty

The second element of the international crime of forced labour is that the labour or services are exacted under the menace of penalty.

Studies, 47, I (2009), pp. 41-72

160_{UK, Asylum and Immigration Tribunal, MA v Secretary of State for the Home Department, CG 2007}

(29)

Under the Eritrean national law, non-compliance to obligations under the national service is punished by a fine or a term of imprisonment of up to 5 years, those fleeing abroad to escape the national service being the most severely punished.161 When detained, deserters are subjected to torture and inhumane and degrading treatment.162 Conscripts overstaying their rarely authorised permissions can also be arrested and detained in inhumane conditions. Draft evaders and deserters also lose their right to a business licence, travel document, and land property.163

In practice, punishment for military offences is carried out arbitrarily and include shoot to kill orders, detention for long periods of time in inhumane conditions, torture and forced labour.164

Conscripts have no choice in the nature of the work they are required to do. In addition to military service, many former conscripts report that they were assigned to construction projects or work in the agricultural sector.165

The fulfilment of obligations under the national service conditions the continuation of citizenship, as demonstrates Jehovah’s Witnesses’’ loss of citizenship when they refused to take part in the national service.166

The fact that deserters are at risk of being persecuted and ill-treated is widely recognised and asylum applications introduced by Eritreans show some of the highest acceptance rate. For instance, in 2009, there were 100% recognition rates for asylum applications lodged by Eritreans in Norway and in Germany.167 In the MA v Secretary of State for the Home

Department case, senior immigration judges held that “by leaving illegally while still subject

to national service, a person is reasonably likely to be regarded by the authorities of Eritrea as

religious institutions and activities [], 15 July 1995

rights, AFR 64/003/2004 (May 2004)

religious institutions and activities [], 15 July 1995, Article 37

164_{UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the}

International Protection Needs of Asylum-Seekers from Eritrea, 20 April 2011, HCR/EG/ERT/11/01_Rev.1

Studies, 47, I (2009), pp. 41-72

(30)

a deserter and subjected to punishment which is persecutory and amounts to serious harm and ill-treatment.168

Conscripts receive a very small pay – 450 nakfa, around 45 US dollars.169 This amount of money does not allow to meet a family’s basic needs, and can be withdrawn as a punishment if a conscript overstays his days of rest. Leaves are limited as well, and granted arbitrarily by the military superiors, usually once a year. Just like the national service salary, conscripts’ leave may be withheld as a punishment.170

Conscripts’ labour and services within the Eritrean national service are therefore exacted under the menace of penalty, and the second criteria of forced labour is therefore fulfilled.

1.2.3 The use of labour and services as a means of political coercion, education or as a method of mobilising and using labour for purposes of economic development and labour discipline

Under the Convention Concerning the Abolition of Forced Labour171_{, the use of compulsory}

labour as a means of education or as a method of mobilising and using labour for the purposes of economic development and labour discipline is strictly forbidden.

Yet, according to the National Service Proclamation 82/1995, the national service constitutes a means to transmit the values and characteristics of the EPLF, to instil discipline and love of work, to mobilise and use labour for national reconstruction and economic development, and to foster national identity and unity.172

168_{UK, Asylum and Immigration Tribunal, MA v Secretary of State for the Home Department, CG 2007}

UKAIT 00059 (2007)

170_Ibid

171_{International Labour Organization (ILO), Abolition of Forced Labour Convention, C105, 25 June}

1957, C105

172_{Unofficial English Translation of the Gazette of Eritrean Laws, 1995-10-23, Vol. 5/1995, No. 11, 16}