President Isaias Afeworki’s regime is facing a new round of condemnations following a report from the Commission of Inquiry on Human Rights in Eritrea, established the UN Human Rights Council, which has been investigating Asmara’s wrongdoings for about a year.

The apparent authority of the Commission’s report, released on Monday, will probably tear down any other convenient myths about the situations in the tiny of Horn of Africa nation and on how to tackle them. But the report does more than that. It made serious charges against the regime:

The Commission also finds that the violations in the areas of extrajudicial executions, torture (including sexual torture), national service and forced labour may constitute crimes against humanity. The Commission emphasizes that its present findings should not be interpreted as a conclusion that international crimes have not been committed in other areas.

Crimes Against Humanity is one of the subject-matter jurisdictions of the Hague-based International Criminal Court (ICC). Hence, would this suffice for ICC to start investigations or does it need a specific Photo - President Isaias Afeworki in Sudan -June 2015form of request? In general, what’s the implication for Asmara?

HornAffairs requested expert opinion from Mehari Taddele Maru, Doctor of Legal Sciences, an International Consultant on African Union affairs, and a Research Fellow at the NATO Defense College.

Mehari illuminated on the matter, in an email reply from South Africa, as follows:

There are six points to consider:

1. Politically and diplomatically, through this inquiry report, now Eritrea has joined the club of countries known for massive and grave human rights violations and investigated by the Human Right Council such as North Korea, Syria, Sri Lanka, and Israel-Palestine conflicts. The regime in Eritrea is in a fierce competition with North Korea to assume the top position in the list of roughest regime in the world.[See the  Inquiry on N. Korea (DPRK)]

2. Substantively, the Commission’s findings are adequate for initiation of discussion, and possibly formal investigation in the UN system, and in particular the UN Security Council (UNSC). It is the UNSC that has the mandate to deliberate and decide further investigations either by a special commission, like the Cassese Commission of Inquiry for Darfur, which would be indicative of higher-level political decision on the matter. Or, the UNSC may instruct the ICC Office of Prosecutor to investigate the case, which I very much doubt it will do as such given the current state of affairs of ICC in Africa and its contentions with the African Union. The UN Human Rights Council could also consider the report, refer the case to the General Assembly, and to UNSC if it deems it necessary.

3. Procedurally, as Eritrea is not a state party to the ICC Rome Statute, the later does not have a mandate to take the case and directly investigate, only the UNSC could bestow mandate to the ICC Office of the Prosecutor to investigate on the crimes committed and initiate a case at the ICC. This needs to be supported by UNSC permanent members, and especially by countries like China.

4. The probability of ICC being involved in the case would be very low given that the AU has strong opposition to the ICC indictment of African heads of state and government. The UNSC may not have the propensity (will, determination and capacity) to act. In light of the failure of the ICC prosecutor to successfully prosecute leaders of Kenya, the Court’s Prosecutor might have limited interest to bring another case to the ICC trial.

5. With regard to Ethiopia and other AU Member State, they will face ethical dilemma of either to continue to oppose the involvement of ICC in Africa or support the transfer of the Eritrean case to UNSC and then ICC. This would present a Morton’s Fork dilemma for Africa and the AU.

6. An alternative and politically expedient option could be for the AU and its MSs to push for another additional investigation by the African Commission on Human and Peoples’ Rights, as had been done in an earlier case.

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Daniel Berhane

Daniel Berhane