Indigenous World 2019: Eritrea

Written on 24 April 2019. Posted in Eritrea

Eritrea borders the southern Red Sea in the Horn of Africa. It emerged as an Italian colonial construct in the 19th century, superimposed over indigenous populations. Eritrea’s current population is between 4.4 and 5.9 million inhabitants.¹ There are at least four indigenous peoples: the Afar (between 4 and 12% of the total population), Kunama (2%), Saho (4%) and Nara (>1%).²

These groups have inhabited their traditional territories for approximately two thousand years. They are distinct from the two dominant ethnic groups by language (four different languages), religion (Islam), economy (agro and nomadic pastoral), law (customary), culture and way of life. All four indigenous groups are marginalised and persecuted.3 Following a United Nations Resolution in 1950 calling for the federation of Ethiopia with the Eritrean colony that Britain had captured from the Italians, a federation was established in 1952. Tensions arose immediately when Ethiopia interfered with the Eritrean courts and executive branch. An armed national liberation struggle broke out in the 1960s when Ethiopia abolished Eritrea’s official languages, imposed Ethiopia’s national language, Amharic, dissolved the federation and annexed Eritrea. The ensuing 30-year struggle succeeded in 1991 when the current regime marched into the capital and took power. Following a referendum in 1993, Eritrea seceded from Ethiopia to form a new state. Eritrean nationalism emanates from the two large ethnic groups (80% of total population combined) that control power and resources. This nationalism is based on suppressing sub-state identities, which the elites see as threatening to the nation-building process. In particular, the indigenous peoples have been pressured by the government’s policy of eradicating identification along regional and religious lines. The regime expropriates indigenous lands without compensation and has partially cleansed indigenous peoples from their traditional territories by violence. The existence of indigenous peoples as intact communities is under threat from government policies aimed at destroying indigenous cultures, economies, landholdings and, for some, their nomadic and pastoral lifestyles. Eritrea is a party to the CERD, CEDAW and CRC but not to ILO Convention 169 nor the UNDRIP. It is the subject of complaints to the UNHRC, the United Nations Commission of Inquiry on Human Rights in Eritrea, the United Nations Special Rapporteur on the situation of human rights in Eritrea (all of which sustained the allegations) and the Special Rapporteur on the rights of indigenous peoples. The complaints allege mass murder, ethnic cleansing, displacement of indigenous peoples from their traditional territories and intentional destruction of the indigenous economy.

A country on the brink

On 8 June 2016, the Commission of Inquiry on Human Rights in Eritrea (COI) reported that Eritrean officials had committed widespread and systematic crimes against humanity against two of Eritrea’s four indigenous peoples, the Afar and the Kunama, over the past 27 years. The COI provided detailed evidence relating to enslavement, imprisonment, enforced disappearance, torture, reprisals and other inhumane acts, persecution, rape and murder⁴ before recommending that the Security Council refer the situation in Eritrea to the Prosecutor of the International Criminal Court.⁵

On 23 June 2017, the Special Rapporteur on the situation of human rights in Eritrea (SR-Eritrea) detailed new acts of persecution in Eritrea committed against indigenous peoples and concluded that “the situation of human rights in Eritrea has not significantly improved”.⁶

Appropriation of indigenous land (and other crimes against indigenous peoples)

In 2013, the SR-Eritrea reported that Eritrea had engaged in a campaign to force the Afar and Kunama indigenous people from their traditional territory, and to destroy their traditional means of subsistence and livelihood. The means used were arbitrary arrests, killings, disappearances, torture and rape.⁷

Eritrea’s land policy “does not recognize land rights for pastoralists”.⁸ As all land is state property, indigenous lands are routinely confiscated without compensation.⁹ This undermines “the clan-based traditional land tenure system” of the indigenous people.¹⁰ Nomadic and semi-nomadic indigenous peoples are losing their traditional herding and grazing lands. The COI concluded that the government’s actions “may be construed as an intentional act to dispossess [the Kunama and Afar] of their ancestral lands, their livelihoods and their cultures”.¹¹

In June 2018, the SR-Eritrea reported that Eritrea’s crimes were ongoing: “The problem is live today as the crimes are still being committed.”¹² To make the ethnic cleansing situation clearer, on 23 October 2018, the SR-Eritrea reported that: “The Afar people have been evicted without any compensation from the port area of Assab”¹³ and that,

The Government [of Eritrea] continues to pursue a land policy that has legitimized forcible displacement and dispossession of indigenous populations and minorities, leading to arbitrary and uncompensated evictions. For example, the Afar people, a pastoralist ethnic minority, have been forcefully evicted, affecting their means of livelihood. They depend on their land, salt mines and fishing and they have been removed from around Assab, the port city in the Southern Red Sea Region, an area traditionally belonging to or used by them.¹⁴

Approximately 200,000 Eritrean Afar and an unknown number of other indigenous Eritrean peoples have fled Eritrea and now live as refugees in neighboring Ethiopia, Sudan and Djibouti. The UNHCR maintains that: “Voluntary repatriation remains the most durable solution to the world’s refugee crisis”.¹⁵ Nobody would voluntarily return to Eritrea today unless they had reliable guarantees of personal security, protection from indefinite national service, prospects for the enjoyment of human rights and expectations of a job. These conditions do not now exist in Eritrea.

Eritrea-Ethiopia rapprochement

On 9 July 2018, Ethiopia and Eritrea signed a Joint Declaration of Peace and Friendship, which provides for the two countries “to forge intimate political, economic, social, cultural and security cooperation”.¹⁶ This event ended a tense, mobilised-for-war standoff that had characterised their relations for a generation. On 17 July 2018, Ethiopia announced that preparations were underway for landlocked Ethiopia to use Eritrea’s port of Assab, and that a task force had been established for implementation in this regard.¹⁷

These are the very same lands and waters that the SR-Eritrea and the COI-Eritrea concluded were the Afar’s “traditional territory”, meaning, in respect to indigenous peoples, “an area traditionally belonging to or used by them [the Afar]”.¹⁸ In case there is any doubt as to whether the SR-Eritrea and COI-Eritrea are correct that the Afar are indigenous, with indigenous rights to their lands in the legal sense, this question was considered by Sébastien Grammond, former Dean of Law at the University of Ottawa and now a Justice of the Federal Court of Canada.

Grammond considered facts relating to Afar history, language, culture, economy and way of life in Eritrea before testing these against international law criteria for determining indigenous status. He concluded that the Afar are indigenous according to international law criteria.

The Afar people show all the characteristics usually associated with the concept of indigenous people in international law. Hence, their assertion that they are indigenous and that they are entitled to the rights and to the protection afforded to indigenous peoples in international law should be respected.¹⁹

To date, neither the Afar people nor any Afar representative organization have been consulted about the planned use of their lands by Ethiopia, nor involved in any other way in either Ethiopia’s or Eritrea’s preparations to redevelop the port of Assab. It appears that Ethiopia is on track to take advantage of Eritrea’s crimes against humanity by paying the offending Eritrean regime to use the Assab port and surrounding lands.

International criminal law

Unsurprisingly, international criminal law does not allow Ethiopia to take the spoils of Eritrea’s crimes by paying the criminals to use the plundered Afar lands. The international criminal law system imposes criminal liability on people who permit, support, aid, assist or provide the means for crimes.

International criminal law statutes and precedents would consider Ethiopian officials as parties and/or accessories to Eritrea’s crimes against humanity when, as is the case here, Ethiopian officials are:

• aware of Eritrea’s persecution of the Afar;
• know that the crime of persecution is ongoing;
• pay the criminals to use lands taken from the Afar by persecution, a crime against humanity;
• intend to profit from using the plundered lands and waters without consulting or involving the indigenous Afar victims in any ²⁰

All these conditions are met as Ethiopia has voted to accept the SR-Eritrea & COI reports containing this information.

For the future

The situation of indigenous peoples inside Eritrea is grim. The country has never held free national elections; it lacks a functioning legislature; it is controlled by a small group of men connected to the president; only government media are allowed to operate; there is no freedom of speech or political space; there are no guarantees for, and no institutional structures to protect, indigenous rights and indigenous peoples. “Information collected on people’s activities, their supposed intentions and even conjectured thoughts are used to rule through fear … individuals are routinely arbitrarily arrested and detained, tortured, disappeared or extrajudicially executed.”²¹ The indigenous people are viewed with suspicion by the regime and persecuted to such an extent that the United Nations COI and SR-Eritrea have called for the perpetrators to answer for crimes against humanity.

The present situation is unlikely to last long: there is an unstable geopolitical environment; the president is 73 years old; there are splits within the ruling regime; and in 2013 there was an attempted coup.²² Because of Eritrea’s strategic location on the southern Red Sea,²³ geopolitical/military interests are present which likely trump concern for the plight of Eritrea’s indigenous peoples in the calculations of the American-backed Saudi-led  coalition  contending  with  the  Iranian-backed Houthi militias. Nevertheless, the rights of indigenous peoples as articulated in ILO Convention 169, the UNDRIP, the missions to protect indigenous peoples in the Human Rights Council, special procedures mandate holders, the Security Council, the ICC and other UN agencies are powerful aspirational and operative counterweights to the Eritrean regime and its gross human rights violations.

All of these international agencies and institutions, including the HRC and its mandate holders, need to continue working to ensure justice, security and peace for Eritrea’s indigenous peoples. These parties might also consider reminding Ethiopia that it cannot simply profit from the plunder of Eritrea’s crimes against humanity without its officials becoming parties or accessories to those crimes themselves. International institutions may also want to suggest to Ethiopia that it would be better for that country to use its new-found access, power and leverage in Eritrea, derived from the Joint Declaration of Peace and Friendship and subsequent implementing machinery, to try to put a stop to the ongoing crimes against humanity being committed there. Ethiopia is well placed to impress on the Eritrean regime the wisdom and justice of working together to ensure that indigenous peoples are brought into the discussion and involved in the planning process for the redevelopment of the port of Assab. This foundation would ensure a stronger framework to ensure that other projects intending to use indigenous lands and resources also respect indigenous rights. At the very least, to the extent that the UNDRIP codifies customary international law,²⁴ both countries have an obligation to consult. Eritrea, moreover, has a legal obligation to make reparations for past human rights violations and crimes against indigenous peoples.

Ethiopia has a new leader, Prime Minister Abiy Ahmed Ali. Dr Abiy has embarked on transformative changes to Ethiopia’s political environment. He has sought and obtained the end of a tense, generation-long, armed-to-the-teeth confrontation with Eritrea, freed political prisoners and journalists, opened space for free expression and political dissent, reframed unbridgeable ethnic rifts within the multinational Ethiopian polity, and nominated a respected human rights lawyer as Chief Justice of the Supreme Court. He has shrouded himself in liberal democratic credentials of peace, democracy and development. Now is the time for international agencies and agencies to bring their influence to bear on Ethiopia to try to persuade it and Dr Abiy to insist on beginning this process before any deal to use indigenous lands is sealed.

Notes and references

1. 39 million is an estimate by the World Bank, see World Bank Country Profile: Eritrea, at http://bit.ly/2SQTIGv; 5.9 million is an estimate by the CIA, see CIA, World Factbook, at http://bit.ly/2SLaOph
2. The numbers are disputed. There are no reliable figures to resolve the dispute as there is no count and no census that has been conducted by Eritrea or others. The CIA, World Factbook, reports Afar at 2% but this is unlikely given that there are 20,000 UN-documented Afar refugees in two refugee camps in neighboring Ethiopia and many more undocumented asylum seekers inside Ethiopia – this alone would likely account for 2% of the Eritrean population. The figure for the Saho is reported by Abdulkader Saleh Mohammad, The Saho of Eritrea: Ethnic Identity and National Consciousness (Berlin: Lit Verlag, 2013).
3. Eritrea: Constitutional, Legislative and Administrative Provisions Concerning Indigenous Peoples (University of Pretoria, 2009) pp. 5-7. This is a joint publication of the International Labour Organization, the African Commission on Human and Peoples’ Rights, and the Centre for Human Rights. See http:// ly/2DZCbCy
4. Second Report of the UN Commission of Inquiry on Human Rights in Eritrea, A/ HRC/32/47, 8 June 2016, paragraph 60, at http://bit.ly/2E69rIu
5. Para 132(b)
6. Report of the Special Rapporteur on the situation of human rights in Eritrea, A/ HRC/35/39, 23 June 2017, para 54, at http://bit.ly/2E55Wld
7. Report of the Special Rapporteur on the situation of human rights in Eritrea, A/ HRC/23/53, 28 May 2013, para 77, 80, 82 See http://bit.ly/2STfDg0. The First Report of the COI in 2015 confirmed these reports
8. Id, para 1156
9. Id, para 1159
10. Para
11. Id, para 1171
12. Report of the Special Rapporteur on the situation of human rights in Eritrea, Sheila B. Keetharuth, paras 90-93, 11 June 2018, A/HRC/38/50. Online: http://bit.ly/2E3h6af - http://bit.ly/2Ec5AJZ at 47:30
13. Id, 47:30
14. See OHCHR http://bit.ly/2SScTj9
15. UNHCR, Global Trends: Forced Displacement in 2016, 25, Online: http://www.unhcr.org/5943e8a34.pdf
16. Eritrea, Ministry of Information, Joint Declaration of Peace and Friendship between Eritrea and Ethiopia. Online: http://bit.ly/2SRn3Rc
17. ESAT News, Ethiopia Readying to Use Eritrean port. Online: http://bit.ly/2E69W5k (accessed 14 October 2018).
18. See OHCHR http://bit.ly/2SScTj9
19. Sébastien Grammond, Legal opinion, 21 March 2011, p. 6, online: http://bit.ly/2E6FeJ0
20. International law scholars take a broad view of aiding and abetting. As Werle & Jessberger, Principles of International Criminal Law, 649, write: “ … where the presence of a person bestows legitimacy on, or provides encouragement to the actual perpetrator, that may be sufficient to constitute aiding and abetting.”
21. Report of the detailed findings of the Commission of Inquiry on Human Rights in Eritrea, A/HRC/29/CRP.1, 5 June 2015, p. 1, http://bit.ly/2E19x3P
22. Jeffrey Gettleman, “Coup Attempt by Rebel Soldiers Is Said to Fail in Eritrea,” The New York Times, Jan 21, 2013, https://nyti.ms/2E0jOgU ; In-depth details on the Eritrean Defense forces operation for change (Operation Forto), http://bit.ly/2E2BcBC
23. Eritrea has a presence on the Bab el-Mandeb Strait – a strategic link between the Mediterranean Sea and the Indian Ocean through which 4.8 million barrels of oil flow per Eritrea also has the Port of Assab, which is presently being used as a staging ground for the UAE-led coalition war against Yemen.
24. This is the opinion, among other international law scholars, of Hohman, J. and Weller, M., The UN Declaration on the Rights of Indigenous Peoples: A Commentary. Oxford: OUP, 2018, p. 62, fn

Joseph Eliot Magnet, F.R.S.C., B.A., LL.B., LL.M., Ph.D. is Professor of Law at the University of Ottawa. He has been Distinguished Visiting Professor, Boalt Hall Law School, University of California, Berkeley, Distinguished Visiting Professor, Tel Aviv University, Visiting Professor, Université de Paris, France, Visiting Professor, University of Haifa, Israel, and Visiting Professor, Central European University, Budapest. He is legal counsel for Governments, First Nations and National Indigenous Associations in Canada and for the Afar Nation in the Horn of Africa.