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  • Devarshi Mohan and Sayan Chandra

Right to Have Rights - A Look into the Gross Violation of Human Rights in Eritrea

This article has been authored by Devarshi Mohan and Sayan Chandra, III-year students at Gujarat National Law University, Gandhinagar.

​INTRODUCTION Eritrea gained independence from Ethiopia in 1993. Since its independence, Eritrea has constantly been at war with Ethiopia which coupled with rampant corruption and a lack of respect for the human rights of its citizens has left the country in ruins. The year 2018 marked the end of the excruciating war between the two nations. The end of the war ushered in a new hope that the situation in the country might finally improve. However, to the contrary, the situation in the country has worsened. Despite the utter lack of respect for the human rights of its citizens, ironically Eritrea was made a member of the United Nations Human Rights Council in 2018. With Eritrea failing to provide the basic amenities to its people, it is time to reiterate the duty of a state to work towards the betterment of its citizens as proposed by some political theories such as Aristotle’s theory of good governance. This theory propounds that the aim of a government should be to work towards the well-being of its citizens. The same has been reiterated by the United Nations on numerous occasions. Promotion and respect of human rights is not only a ground norm under Article 1(3) of the UN Charter but also a principal duty of all states. It has been laid down in the Charter of Economic Rights and Duties of States whereby respect for human rights and prevention of coercive policies under Article 16 of the same is an essential part. All of these duties are being flouted by Eritrea in the name of compulsory military service, incommunicado exile, close to no freedom of speech and expression, extra-judicial killings, indefinite imprisonment, no democratic setup and arbitrary military rule. The systematic violations by not enforcing their constitution and thus flouting the civil liberties of the citizens contravenes with Eritrea’s obligations under the ICCPR. In this background, this article analyses what the international community should do and can do to protect such flagrant violations. A LOOK INTO THE VIOLATION OF HUMAN RIGHTS IN THE COUNTRY The state of freedom of expression in the country is abysmal. According to a report on freedom of press in the world, Eritrea ranks 178 out of 180 countries. To make things worse, Eritrea has had no independent press since 2001. It has been estimated that since 2001 around 69 journalists have been arbitrarily arrested without a fair trial. It is needless to reiterate that the fuel for Eritrean government’s repressive tactics have been the silencing of independent media, critical voices and the perpetual state of emergency followed by the complete absence of rule of law. The mandatory national service in Eritrea has been compared to “enslavement”. It is also one of the primary reasons why young Eritreans try to flee from their country as people are stripped of their natural living standards. Despite the abject poverty in the country, the government is not working to improve the economy and generate employment. Instead, it is trying to establish an autocratic constitution-less rule, rampant with human rights violations. Instead of working towards spearheading the economy and generating employment, the Eritrean government has tried to establish an autocratic constitution-less rule, rampant with human rights violations. ERITREA'S FAILURE TO ADHERE TO INTERNATIONAL LAW AND TREATY OBLIGATIONS AND WHAT TO BE DONE TO PREVENT IT The situation has only worsened owing to a complete exclusionary policy adopted by the government. Eritrea has shut access of major human rights organisations to the country. It has even prevented UN Special Rapporteur from entering the country by denying him the basic visa by playing the trump card of sovereignty. Eritrea, as a member of the UN Human Rights Council, has agreed to coordinate with the functioning of the council. Hence, it is the duty of Eritrea to respect and coordinate with the council who, vide resolutions 26/24 and 29/18, have formed a special commission to investigate the systematic and widespread gross human rights violation. However, the Eritrean government has time and again failed to adhere to its international obligations and continues to oppress its citizens with a blatant disregard towards their human rights. Now, the question arises whether Eritrea can be bound to grant access to such special commissions from the UN? The answer lies in the numerous Human Rights Resolutions, 12/2, 24/24,36/21, whereby any act of intimidation or reprisal against Special Procedure Mandate Holders is discouraged and nations are bound to coordinate with them for the promotion of human rights. Principally, every nation has the right of sovereignty to exclude other international players from interfering with its domestic governance. However, that sovereign right is limited, the moment one subscribes to the ideals of human rights protection under the OHCHR. Additionally, even the UN can intervene on humanitarian grounds under chapter VII of the UN Charter. The concept of humanitarian intervention and the Responsibility to protect as evolved by the UNGA collectively expresses the will of the world community that in case of a violation of human rights, a violation of a state’s sovereignty can be justified. It has been reiterated by the ICJ in the case of Gambia v. Myanmar that human rights are Jus Cogens norms, and a threat to human rights anywhere is a threat to human rights everywhere, thereby giving a cause of action to the entire world to prevent such blatant violations. Therefore, it is imperative that the international community takes a collective effort towards enforcing a situation of normalcy with respect to human rights in Eritrea. The government of Eritrea has been firm on its stance, putting forth that no situations have arisen which require such a special procedure by the OHCHR against it. However, the report of the OHCHR suggests otherwise. The report puts forth that with the mandate in place, many agencies and citizens in Eritrea have come forth to voice their opinions on human rights violations, displaying the grave nature of the crisis. It is needless to mention that with the present situation going out of hand, sanctions can be an option which the UN and other nations can explore. However, such a step may end up worsening the situation while considering the pre-existing economic condition of the state. A practical manifestation of the same can be seen in the case of Iran v. USA, where the ICJ has highlighted the downside of brutal sanctions. This additionally raises the question as to whether economic sanctions are a remedy to human rights violations at all. As, in situations where the nation is itself in a political and economic breakdown, economic sanctions not only burden the treasury of the nation but also impact the innocent citizens and thereby making the citizens face the grunt of unruly government regimes. The last resort for the UN in such a situation would be to exercise its responsibility to protect under the G.A. Res. 60/1, whereby the UN strives to narrow the gap between the states’ pre-existing obligations for the observance of human rights and the reality faced by the population of the states. It is embodied in the principle of responsibility to protect that, in cases where the national authorities fail to observe human rights or prevent the commission of crimes against humanity, it is the duty of the international community and thereby the Security Council to use diplomatic and peaceful measures to prevent such violations. The UN Human Rights Council in pursuance of this responsibility has been trying to send diplomatic missions and peaceful commissions to help the government settle the matter. However, the Eritrean government has time and again turned them down along with violating their own national responsibility to protect. If the situation continues, which it is, it is time for the Security Council to take the much-required collective action citing the gravity of the situation and the multitude of people suffering in the nation. In such a case, the nation cannot be allowed to make use of their sovereignty trump card, as the sovereignty of any state lies with the people and especially so after Eritrea has declared itself a people’s democracy. CONCLUSION Where human rights are violated in the absence of a democratically elected government, it is the sovereignty of a nation itself which is harmed and needs to be cured by the collective action of the global community. This is particularly true in this case as the Eritrean government has not been democratically elected thereby not qualifying to be a de facto government. As held in the Tinoco Claims Arbitration, a government to claim sovereignty has to be a de facto government for which it “must maintain a peaceful administration, with the acquiescence of the people”. It is undeniably true that a government doesn’t have to be democratic in nature to be a de facto government in the eyes of law. But the maintenance of peaceful administration is essential which is being blatantly ignored by Eritrean government thereby making it not a de facto government. Further, it is the duty of the Eritrean government to respect the principles of democracy enumerated by the people of Eritrea in its first independent constitution. Therefore, where the government fails to administer the basic needs of its citizens, it should not be allowed to use the sovereignty trump card to prevent a peaceful diplomatic humanitarian intervention into the nation. In a nation where the acquiescence of the people is flouted by the gross violations of human rights, the government cannot be allowed to claim itself as a de facto government and wear a cloak of political independence and sovereignty to evade its duty to protect the basic human rights of its citizens. It is a matter of right of the citizens of Eritrea to claim their human rights to be respected by the government of their nation. The citizens should have the say as to whether an intervention is required or not. In the given circumstances, it seems the citizens are shouting out the answer loud enough. Therefore, it is but a cry of the hour to remind the Eritrean government as well as the global community of their duty to restore normalcy in terms of human rights conditions in the nation.

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