A Catalogue of Human Rights Violations in Eritrea

Recommendations Charter-, Treaty-Based Human Rights Monitoring Mechanisms Pertaining To Social, Economic, Cultural Rights, Accountability For Crimes Against Humanity In Eritrea

Description

At the 62nd session of the African Commission on Human and Peoples’ Rights, April/May 2018, Nouakchott, Mauritania, the Centre for Human Rights co-hosted, together with Amnesty International and Eritrean human DefendDefenders, a side event on the human rights situation in Eritrea. The aim was to draw attention to the situation in the country. On this occasion, the Centre focused on the socio-economic rights situation in Africa, and launched a report on socio-economic rights and accountability in Eritrea.

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2018
• Nombre de lectures: 0
• EAN13: 9781920538811
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

A Catalogue of Human Rights Violations in Eritrea:

Recommendations by Charter and treatybased human rights monitoring mechanisms pertaining to social, economic and cultural rights and accountability for crimes against humanity in Eritrea

2018

A Catalogue of Human Rights Violations in Eritrea: Recommendations by Charter- and treaty-based human rights monitoring mechanisms pertaining to social, economic and cultural rights and accountability for crimes against humanity in Eritrea

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: MinitPrint, Hatfield, Pretoria

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] [e-mail] www.pulp.up.ac.za

Cover: Yolanda Booyzen, Centre for Human Rights

ISBN: 978-1-920538-81-1

© 2018

Printed in the Republic of South Africa

Table of contents

Introduction

The right to work

The right to the highest attainable standard of health

The right to education

The right to adequate housing

The right to adequate food

Crimes against humanity in Eritrea

Conclusion

Bibliography

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Introduction

This booklet brings together recommen- dations of Charter- and treaty-based human rights monitoring mechanisms directed to Eritrea, pertaining to socio-economic rights and crimes against humanity. It appears as Eritrea has for the first time reported to the African Commission on Human and Peoples’ Rights, under article 62 of the African Charter on Human and Peoples’ Rights (African Charter), and this report is scheduled for examination at the Commission at its 62nd session, April 2018. In addition to having become a state party to the African Charter and African Charter on the Rights and Welfare of the Child, Eritrea has ratified the following UN human rights treaties:

Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment

International Covenant on Civil and Political Rights

Convention on the Elimination of All Forms of Discrimination against Women

International Convention on the Elimination of All Forms of Racial Discrimination

International Covenant on Economic, Social and Cultural Rights

Convention on the Rights of the Child

Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict

Optional Protocol to the Convention on the Rights of the Child on the sale of children child prostitution and child pornography

CAT

CCPR

CEDAW

CERD

CESCR

CRC CRC-OP- AC

CRC-OP- SC

Eritrea has however not accepted optional complaints mechanisms.

any

This report focuses on the right to adequate health, food, housing, education and work; and crimes against humanity of murder, enslavement, imprisonment, rape, persecution, torture, other inhumane acts. It consists mainly of the recommendations contained in the following:

• Concluding Observations of the African Committee of Experts on the Rights and Welfare of the Child (ACERWC); • Concluding Observations of the relevant UN human rights treaty bodies, to which Eritrea has submitted state reports; • recommendations resulting from the United Nations (UN) Human Rights Council’s Universal Periodic Review (UPR); • recommendations resulting from the reports of the Special Rapporteur on the situation of human rights in Eritrea, Ms Sheila Keetharuth, and other UN special procedures; and • recommendations resulting from the Commission of Inquiry on Human Rights in Eritrea. The information is set out to reflect as far as possible the position as at the end of 2017.

The recommendations are preceded by brief discussions of the nature and scope of the rights concerned. The recommendations relating to crimes against humanity in Eritrea are preceded by brief discussions of the general and specific requirements of crimes against humanity.

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Chapter 1: The right to work

The Constitution of Eritrea, article 9(3) The State shall ... create an enabling environment for individuals to work in an atmosphere of freedom and to manifest their creativity and innovation.

Penal Code of Eritrea, article 299 - Violation of the Right of Freedom to Work (1) A person who by intimidation, violence, fraud or any other unlawful means, whether alone or with others compels another to: (a) to accept a particular employment or particular conditions of employment, or to refuse or withhold his labor, with the object of imposing on an employer by force the 190 acceptance or modification of terms of employment; (b) to join a group or association having as its aim the objects mentioned in (a); or (c) anyone who prevents another from freely leaving such a group or association, is guilty of violation of the right of freedom to work, a Class 1 petty offence, punishable with a definite term of imprisonment of not less than 6 months and not more than 12 months, or a fine of 20,001 – 50,000 Nakfas, to be set in intervals of 2,500 Nakfas.

African Charter,article 15 Every individual shall have the right to work under equitable and satisfactory conditions and shall receive equal pay for equal work.

Universal Declaration of Human Rights, article 23 (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. (2) Everyone, without any discrimination, has the right to equal pay for equal work. (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. (4) Everyone has the right to form and to join trade unions for the protection of his interests.

Convention on Economic, Social and Cultural Rights,article 6 (States Parties to the present Covenant recognize the right to work, which includes the right of1) The everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. (2) The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.

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1.1 Introduction

The right to work is recognised in the Eritrean Constitution and treaties to which Eritrea is a party. However, a number of reports indicate the challenges faced by Eritreans to enjoy this right. In particular, the reports of the Special Rapporteur on the Situation of Human Rights in Eritrea, the Commission of Inquiry on Human Rights in Eritrea, and treaty monitoring bodies have showed that possible violations of the right to work, resulting from the state policy of national service, are pervasive in Eritrea. These include forced labour, including the compulsory labour exacted on children who are forcibly conscripted in the national service, and unsafe working conditions.

This Chapter briefly discusses the normative content of the right to work and the corresponding obligations on states for the realisation of this right. The discussion is principally based on the interpretation of the nature of this right by the Committee on Economic, Social and Cultural Rights (Committee on ESCR) in General Comments 18 (2006) and 23 (2016). It aims to show whether the enjoyment of the right in question measures up to the norms enshrined in national, regional and international legal frameworks applicable to Eritrea. The Chapter also reiterates some of the findings of treaty bodies and special procedures in relation to this right. Finally, right to work-related recommendations made by Charter- and treaty based human rights monitoring mechanisms are reproduced.

1.2 Normative content of the right to work as applicable to Eritrea

The right to work is both an individual and a group right as provided in articles 6, 7 and 8 of the International Covenant on Economic, Social and Cultural Rights (CESCR). In General Comment 18, the Committee on ESCR articulated the normative content of this right, provided for in article 6 of CESCR.

The General Comment states that the term ‘work’ in article 6 of the Covenant means decent work that is respectful of the rights of 1 workers. It also refers to just and favourable conditions of work, which is an integral part of the right to work and a pre-requisite for the enjoyment of other rights enshrined in 2 the Covenant. This is also reflected in article 15 of the African Charter on Human and Peoples’ Rights (African Charter) which recognises the right to ‘work under equitable 3 and satisfactory conditions’.

The Covenant lists fundamental elements required to ensure just and favourable conditions of work. One of these elements is that work should generate remuneration that provides, among other things, decent living 4 for workers and their families. The 5 remuneration should also satisfy fair wages. According to the General Comment on the Right to Just and Favourable Conditions of Work, remuneration should also be commensurate to the output of the work and 6 the level of expertise required for the work.

The other fundamental element relates to safe and healthy working conditions. An important component of this element is the prevention of occupational accidents and diseases. This is also protected by a domestic law of Eritrea, which imposes duty on employers to ‘take all necessary occupational 7 safety and health measures’.

The other fundamental elements which the Covenant enumerates, albeit non- exhaustively, are: ‘equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence’; and ‘rest, leisure and

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2

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4 5 6 7

Committee on ESCR General Comment No 18 para 7. Committee on ESCR General Comment No 23 para 1. African Charter on Human and Peoples’ Rights, art 15. CESCR art 7(a)(ii). n 4 above, art 7(a)(i). n 4 above, para 10. The Labour Proclamation of Eritrea 118 of 2001 art 20(4).

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responsible limitation of working hours and 8 periodic holidays with pay...’.

The right to work entails individuals’ right 9 to freely choose or accept work. The International Labour Organisation (ILO) Convention No 122 concerning Employment Policy reinforces individuals’ freedom to 10 choose work. If individuals are subjected to work ‘under the menace of penalty,’ without their free consent, this constitutes forced labour, which is proscribed by the ILO Forced 11 Labour Convention. The Convention, however, provides for exceptions to forced labour in article 2(2). The exception includes work exacted pursuant to a conviction passed 12 by a court of law, work exacted based on ‘compulsory military service laws for work of a purely military character,’ and work exacted 13 during a state of emergency. These exceptions do not include compulsory work 14 for purposes of economic development.

On the other hand, the Convention provides protection of this freedom by imposing obligations on state parties to criminalise ‘[t]he illegal exaction of forced or 15 compulsory labour’. State parties’ obligation in this regard entails strict enforcement of penalties for the offence of 16 illegal exacting of labour.

In addition to protecting workers in the formal economy, state parties are required to

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12

13

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n 4 above, art 7. n 4 above, art 6(1). International Labour Organisation (ILO) Convention No 122 concerning Employment Policy art 1(2)(c). ILO Forced Labour Convention No 29 art 2(1). Eritrea is a party to this treaty (acceded on 22 February 2000). See ratification table: http:// www.ilo.org/dyn/normlex/en/ f?p=1000:11300:0::NO:11300:P11300_INSTRUME NT_ID:312174 (accessed 24 April 2017). Art 2(2)(c) of the Convention stipulates that the work or service should be ‘carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations’. International Labour Organisation Forced Labour Convention art 2(2)(a). See art 1(b) of the Abolition of Forced Labour Convention of 1957. ILO Forced Labour Convention No. 22 1930 art 25. n 15 above, art 25.

ensure protection to workers in the informal 17 economy. This includes taking measures to reduce the number of people who are 18 employed in informal sectors. The General Comment reiterates that these categories of workers are often subjected to work under conditions outside the scope and protection of laws because they engage in such works 19 mostly for mere survival.

The General Comment specifically addresses the particular concerns of vulnerable groups such as women, children, migrant workers, persons with disabilities, and older persons, in relation to the right to 20 work. For example, regarding women, it invokes article 3 of the Covenant and underscores the need to ensure gender equality in accessing work, equal pay for work of equal value, and non-discrimination based on gender. In relation to children, it enumerates the obligation of state parties to protect them ‘from all forms of work that are likely to interfere with their development or 21 physical or mental health’. It further indicates that states parties have the obligation to ‘take effective measures’ to ensure that children below the age of 16 are not employed in any kind of labour.

The right to work entails essential elements, namely, availability, accessibility, 22 and acceptability and quality. The implementation of these essential elements,

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18 19 20 21 22

Informal economy is defined as ‘all economic activities by workers and economic units that are – in law or in practice – not covered or insufficiently covered by formal arrangements […] They are operating outside the formal reach of the law; or […] although they are operating within the formal reach of the law, the law is not applied or not enforced; or the law discourages compliance because it is inappropriate, burdensome, or imposes excessive costs’. See Conclusions concerning decent work and the informal economy, International Labour Conference, 90th Session, Record of Proceedings (2002) 2 p. 25/53, para 3, cited in A Trebilcock ‘International labour standards and the informal economy’ (2004) 586. n 1 above, para 10. As above. n 1 above, paras 13-18. n 1 above, para 15. n 1 above, para 12.

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however, is contingent on ‘conditions’ 23 prevailing in individual state parties.

1.2.1 Availability The requirement of availability does not refer to states’ obligation to make jobs available to job seekers. Rather, it requires state parties to assume the role of facilitating individuals’ access to jobs. The General Comment states that ‘[s]tates parties must have specialized services to assist and support individuals in order to enable them to identify and find 24 available employment’.

1.2.2 Accessibility Accessibility has three dimensions. The first dimension relates to the prohibition of ‘discrimination in access to and maintenance of employment on the grounds of race, 25 colour, sex, language, religion ...’. This dimension requires state parties to take 26 measures to ensure non-discrimination. The Committee stresses that ‘even in times of severe resource constraints, disadvantaged and marginalized individuals and groups 27 must be protected’. The second dimension 28 relates to physical accessibility. The Committee refers to its General Comment 5, in which it noted that man-made impediments to the employment of persons 29 with disabilities should be removed. The third dimension of accessibility includes ‘the right to seek, obtain and impart information on the means of gaining access to 30 employment’.

23 24 25 26 27 28 29 30

As above. n 1 above, para 12(a). n 1 above, para 12(b)(i). n 1 above, para 12(b)(i). n 1 above, para 12(b)(i). n 1 above, para 12(b)(ii). Committee on ESCR General Comment 5 para 22. n 1 above, para 12(b)(iii).

1.2.3 Acceptability and quality The right to work includes an individual’s right to engage in work which they ‘freely 31 choose or accept’. Quality refers to the conditions of work, which, as provided in article 7, recognise the right to just and favourable conditions of work such as ‘safe 32 and healthy working conditions’.

1.3 State parties’ obligations

State parties have the obligation to ensure the progressive realisation of the right to 33 work. They also have immediate obligations such as the obligation to ensure non- discrimination in the exercise of work, and to take steps according to article 6(1) of the 34 Covenant. Such steps should be ‘deliberate, concrete and targeted towards the full 35 realisation of the right to work’.

The right to work imposes the obligation to respect, protect and fulfil. The obligation to respect requires states to refrain from 36 exacting forced labour, or from ‘denying or limiting equal access to decent work for all persons, especially disadvantaged and 37 marginalised individuals and groups’. This obligation requires state parties to take measures intended to ensure non- discrimination in access to work and prohibition of labour of children below the 38 age of 16. The obligation to protect the right to work requires state parties,inter alia,

31 32 33 34 35 36 37 38

n 4 above, art 6(1). n 4 above, art 7(b). n 1 above, para 19. As above. As above. See also CESCR art 2(1). n 1 above, para 23. As above. As above.

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to take legislative and other measures in order to ‘ensur[e] equal access to work and 39 training’. It also includes state parties’ obligation to prohibit non-state actors such as private individuals and companies from exacting forced labour, as set forth in articles 2(2)(c) and 25 of the ILO Convention against 40 Forced Labour 22 of 1930. The obligation to fulfil (provide) arises when individuals or groups are not able to exercise the right to work owing to reasons beyond their 41 control. The obligation to fulfil (facilitate) relates to the duty of state parties to take measures aimed at facilitating access to 42 employment. The obligation to fulfil (promote) relates to state parties’ obligation to raise public awareness on the right to 43 work.

1.4 Overview of the situation of the right to work in Eritrea

The right to work is recognised in the Constitution of Eritrea. It recognises the freedom of individuals to engage in the work they choose and prohibits ‘forced labour not 44 authorised by law’. Subordinate laws also give protection to the right to work. Notably, the Penal Code of Eritrea proscribes the 45 violation of the right of freedom of work.

Nevertheless, the findings of the Special Rapporteur on the situation of human rights in Eritrea and the Commission of Inquiry indicate violations of the right to work in Eritrea. For instance, the Commission of Inquiry’s 2015 report finds that, in every year, thousands of children are enrolled into the national service, being deprived of their freedom to choose their preferred type of

39 40 41 42 43 44 45

n 1 above, para 25. As above. n 1 above, para 26. n 1 above, para 27. n 1 above, para 28. Constitution of Eritrea arts 21(3) & 16(3). Penal Code of Eritrea, art 299.

46 profession and place of work. It indicates that conscripts, students and elders are subjected to compulsory work under the 47 menace of punishment. Compulsory labour is exacted from conscripts for works that do not have military character, which does not fall under the exceptions provided in article 2(2) of the ILO Forced Labour Convention 29. Although compulsory work for the purpose of economic development is not allowed under international law, in Eritrea however, it is exacted from conscripts for various development projects such as in mining and 48 the construction of roads.

Although the ILO Convention against Forced Labour does not prohibit ‘work or service exacted from any person as a consequence of a conviction in court of law,’ it stipulates that the person should not be ‘hired or placed at the disposal of private 49 individuals, companies or associations’. The Commission’s report mounts evidence which indicates that conscripts in national service being subjected to work at the disposal of 50 public companies. Detainees work not only for the benefit of the government, but also for private individuals such as high ranking military officers who own private businesses 51 or farms.

The report further indicates that the government exacts forced labour from ‘non- convicted detainees, who are not paid’ and 52 the labour is ‘often of an afflictive nature’. Most of detainees are not convicts, and are subjected to similar treatments with 53 prisoners. At times, they are compelled to build the prison in which they are to be 54 detained. The finding also indicates that

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Human Rights Council ‘Report of the detailed findings of the Commission of Inquiry on Human Rights in Eritrea’ (2015) A/HRC/29/CR para 1498. n 46 above, para 1503. n 46 above, para 1402. n 15 above, art 2(2)(c). n 46 above, para 1409 and 1410. n 46 above, para 1490. n 46 above, para 1505. n 46 above, para 1488. n 46 above, para 1489.

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