INTRODUCTION

When Eritrea achieved independence, de facto 1991 and de jure 1993, many national and international observers expressed a strong degree of optimism towards a positive development of democracy, civil society and a culture of human rights in the country. President Isaias Afwerki was characterised as belonging to the ‘new breed’ of African leaders who apparently enjoyed popular support among their constituencies, rhetorically endorsed liberal democracy, human rights and a free market economy, and had a well-defined development policy based on their own priorities. As such, Isaias Afwerki, and the rest of his generation of leaders, heralded a clear breach with the ancien regime of Mengistu Haile-Mariam.

Today, however, Eritrea is characterised as one of the world's worst dictatorships, where human rights are violated on a massive and systematic scale. Institutions of democracy and civil society – which ought to function as checks and balances to unaccountable political power – plainly do not exist in the country. As this study illustrates, the seeds of dictatorship were sown early in Eritrea (Kibreab 2008); whereas the final blow to democratic development was experienced in the aftermath of the 1998-2000 Eritrean-Ethiopian war.

OPPOSING THE EMERGING ONE-MAN DICTATORSHIP: POST-WAR REFORM MOVEMENT

Eritrean-Ethiopian relations gradually deteriorated after Eritrean independence, as the two formerly friendly resistance movements held different perceptions about how to organise state and governance, and opted for varying strategies of ‘development’ (Negash and Tronvoll 2000).

INTRODUCTION

As we have seen, when the ELPF came to power in 1991 and established itself as a provisional government, hopes were high for a democratic system of governance. Over two decades later these aspirations are nothing but bleak memories. In the intervening years Eritrea has developed into one of the world's most totalitarian and human rights-abusing regimes. This is well established in the wealth of academic literature, reports of international rights groups, interviews with refugees, victims and other stakeholders, as well as decisions of regional and international semi-judicial organs that we have cited extensively throughout this work. For example, at least four major pronouncements were made against the Eritrean government at different times by the African Commission on Human and Peoples’ Rights and the UN Working Group on Arbitrary Detention, as discussed in Chapter 5. These semi-judicial opinions have made it clear that the practice of the Eritrean government as related to the G-15 and the journalists of the free press, and by implication to all other victims of political persecution, is contrary to the government's commitment emanating from relevant treaty law.

As noted by the UN Special Rapporteur on the Situation of Human Rights in Eritrea, the major problem lies in the fact that ‘the basic tenets of the rule of law are not respected in Eritrea owing to a centralized system of Government where decision-making powers are concentrated in the hands of the President and his close collaborators’ (Special Rapporteur 2013: 8).

INTRODUCTION

Eritrea is a country re-born out of suffering and human rights abuses. Its independence was hard won in 1993 after a 30-year-long war of liberation (Cliffe and Davidson 1988; Connell 1993; Iyob 1995). The massive and widespread human rights abuses experienced by the Eritrean people suffering under the yoke of the Derg military regime of Ethiopia, made them determined that they would ‘never kneel down’ in their struggle against oppression (Firebrace and Holland 1987).

It is cause for despondency that the oppression and massive human rights abuses, now committed by their liberation hero-turned-dictator, President Isaias Afwerki, persist in Eritrea today. Promises of democracy and freedom offered by the liberation front (EPLF/PFDJ) during the war and at independence have all been broken. Thousands of Eritreans are languishing in ‘secret’ detention camps throughout the country, government critics, veteran liberation fighters, civil servants, peasants, students, journalists, and religious believers alike. No group or individual is unaffected – men and women, young and old, Christian and Muslim, rural and urban, educated and uneducated, all are liable to be regarded as a threat to the regime and thus susceptible to arrest, torture and disappearance (see Chapter 7). Eritrea, in the second decade of the twenty-first century, is a nation held hostage by its own government, with a population denied basic human rights and freedoms. Estimates of the number of political prisoners or victims of detention without trial and enforced disappearances, given by different sources, including Eritrean refugees and exiled civil society representatives, vary between 10,000 and 30,000.

INTRODUCTION

In 1993 Eritrea became what was then Africa's newest state after a 30-year-long war of liberation against Ethiopia. The Eritrean People's Liberation Front (EPLF) organised its resistance around a stringent nationalist ideology, where identity markers of ethnicity, culture, religion or regionalism were banned. The particular colonial history of the country, EPLF's ideology and the brutal and protracted war itself – which impacted on all people in the region – were believed to help to foster and consolidate an all-embracing national Eritrean identity (Negash 1987; Iyob 1995; Pool 2001). Today, however, over two decades later, the Eritrean nationhood cherished and celebrated in 1993 seems hollow, as the sovereignty of the Eritrean citizen is usurped by a ruling party that pits the people against each other in order to perpetuate its position of power.

In independent Eritrea, the EPLF sustained and even reinforced its strict nationalist ideology, as national unity became the principal guideline to which all government policies and development plans were aligned (EPLF 1994: 3). Consequently, the cultural diversity of the country, inhabited by at least nine distinct ethnic groups (several of which are further divided into separate clans), appeared to suffer, as arguments and claims for the enhancement and protection of cultural or minority rights were interpreted as undermining and divisive in relation to the official nationalist policy (Tronvoll 1998b).

The main objective of this chapter is to go beyond an assessment of the situation of minorities in the country, in order to cast light on the historical and political contexts which influence the situation of minorities today.

INTRODUCTION

In our introductory chapter, we outlined how the concept of the garrison state could be used as an explanatory framework to understand Eritrea's post-independence development. In this chapter, we will further explore this assertion in terms of its relation to the high levels of militarisation in the country, both past and present. The country has been further militarised, particularly since the 1998-2000 border conflict with Ethiopia. The latest move by the president pushes the militarisation of society to the extreme, by ordering the establishment of a ‘peoples’ army’, supplying arms directly to households throughout the country. This involves the arming of civilians and ordering them to military training and to carry guns wherever they go. Senior citizens, up to the age of beyond 80 years, are reportedly forced to carry Kalashnikovs, without any adequate explanation given for this draconian and dangerous policy. In order to fully understand the challenge of the militarisation of Eritrean society, we will start our discussion by exploring the root cause of the current pervasive level of militarisation. This analysis will confirm Eritrea as a sustained African garrison state.

PROLONGED HISTORY OF MILITARISATION

Eritrea is one of the most militarised countries in the world. As a country with a long history of political violence, this may not come as a surprise. In fact, referring to a claim made by Richard Reid, Tricia Hepner argues that militarisation is not a recent phenomenon in Eritrea (Hepner 2013: 158).

INTRODUCTION

The young Eritrean nation was established in 1991 with one great drawback: its freedom was secured from a dictatorship by a Marxist-Leninist-inspired liberation movement which was devoid of democratic experience and which abhorred dissent and divergent opinions. The political culture in the country at the time of independence was thus moulded by decades of war and driven by a government whose policies were anchored in ideological doctrines which lacked any regard for human rights. Consequently, as is illuminatingly described by an exiled Eritrean academic:

In order to understand how the contemporary rule of law(lessness) in Eritrea developed, one needs to understand how the Eritrean People's Liberation Front (EPLF) handled such matters during their long struggle to liberate Eritrea from Ethiopian rule.

INTRODUCTION

A perennial issue in the study of civil-military relations is the understanding of why and at what point a government perceives the need to militarise its structures of administration, leading to a perversion of civilian rule and a gradual slide towards military autocracy. This book's objective is to address this issue and assess the political context and human rights situation in Eritrea to attempt to explain why the country, since its liberation in 1991 and de jure independence in 1993, has developed into one of the world's most authoritarian states, militarised with a reputation for human rights abuse.

As early as 1937, the American sociologist George Lasswell presented the garrison state theory, which projected that a military elite could rise to power in response to long-term international tension, under which condition freedom is curtailed while preparation for war becomes the dominant thrust of a society.

INTRODUCTION

Eritrea today is a country under siege by its own government, the Eritrean People's Liberation Front (EPLF). The pretext of external enemies is used as an excuse to deny people their basic rights and freedoms of opinion and expression, to organise and assemble, and to practise their religious beliefs (Connell 2007; AI 2008b; RWB 2008; USSD 2008a, 2008b; HRW 2009; USSD 2009). The Eritrean government does not allow any alternative voice or opinion to be heard; all resources and people are mobilised and channelled into maintaining the country's totalitarian and militaristic structure.

INTRODUCTION

The consolidation of nationalist sentiments in Eritrea and the construction of a centralist, unitary state after independence in 1991 have led to a growing tension between the dominant nationalist ideology – which partly reflects the cultural sentiments of the Tigrinya majority group – and minority groups. This is aggravated by the fact that the EPLF/PFDJ government is perceived by many minority representatives to be a predominantly ‘Tigrinya’ government as the language and political culture of the government stems from the Tigrinya group inhabiting the Eritrean highlands and urban centres throughout the country.

Of the many minority groups in Eritrea, the government has seemingly singled out the Kunama group as of special concern to the state. The history of the Kunama population can be read as a narrative of sustained violations of minority rights, in addition to a general contravention of basic human rights, such as the right to life and the prohibition of torture and collective punishment. In order to highlight concerns about Eritrea's minority populations, this chapter will analyse the situation of cultural and minority rights in Eritrea exemplified by the case of the Kunama group and based on the framework for the general protection of minority rights as developed by the UN Independent Expert on Minority Issues (McDougall 2007: 334).

INTRODUCTION

The land of Eritrea has, over the centuries, been controlled by different powers, all of which have left an imprint on both official and informal sources of law and legal authority in the country. During the last century Eritrea has experienced five radical political transitions all involving shifts of judicial authority. Consequently, in order to achieve a comprehensive understanding of the current workings of the judicial system and the rule of law in Eritrea, it is crucial to have knowledge about the historical trajectories of law in the country.

This chapter will thus first outline how the sources of law and legal authority in Eritrea have evolved historically. Thereafter the legal transition after military liberation in 1991 and de jure independence in 1993 and the constitution-drafting process will be discussed. Emphasis is put on how human rights issues have been handled in these processes.

SOURCES OF LAW AND LEGAL AUTHORITY

During pre-colonial times (prior to 1890), part of the Eritrean territory fell under the political realm of the Abyssinian state (Ethiopia). Eritrean highland society (kebessa) in particular was an integral part of Abyssinian feudal structures, as the governor paid tribute to the prince (ras) of Tigray, who was in turn subject to the authority of the king of kings (neguse-nagast), the emperor of Abyssinia. Hence, many of the customary sources of law still operating informally in Eritrea derive from, or are influenced by, an Abyssinian tradition. This is particularly relevant to customary forms of land tenure (Tronvoll 1998a).

This book is based upon the authors' long-term research and advocacy work for human rights in Eritrea. The direct inspiration for the book is a commissioned study undertaken by Kjetil Tronvoll on behalf of the Oslo Centre for Peace and Human Rights in 2009. The President of the Oslo Centre, Mr Kjell Magne Bondevik, former Prime Minister of Norway, had at that time just stepped down as a UN Special Envoy to the Horn of Africa and wanted to continue his human rights engagement in the region – thus commissioning a report on the dire situation in Eritrea. Thanks are thus due to Mr Bondevik and the Oslo Centre for commissioning the initial report. This book, however, is based upon an expanded and updated manuscript.

Several individuals have served as research assistants to this work, and special thanks go to Annie Golden Bersagel, Anette Frölich, Dag Rune Sameien, Tarana Riddick, Ann-Therese B. O. Kildal and Natasha Telson.

The International Law and Policy Institute (ILPI) has a dedicated Eritrea research group of some of the world's leading experts on human rights and political development in Eritrea. ILPI is obliged to closely research and monitor the situation in Eritrea, in order to provide analytical works and policy advice to the international community for the purpose of conflict mitigation and alleviation of the long-term plight of the Eritrean people.

INTRODUCTION

Memories of the detention and disappearances of loved ones by the brutal Ethiopian military dictatorship during the war of liberation still linger among the people of Eritrea. However, today those memories are overshadowed by the current brutal reality, that their own government is even more ruthlessly vicious than their former enemy.

Despite the fact that there is a fairly adequate formal legal framework for the protection of basic human rights in the country (see Chapter 2), widespread and systematic violations on a massive scale occur on a daily basis in Eritrea. Eritrean and international laws prohibit arbitrary arrest and detention, yet it remains a serious and pervasive problem in the country (USSD 2011: 5). No one knows how many individuals – men and women, old and young – are kept in detention or under arrest in Eritrea today, but estimates suggest 10,000 (UN Special Rapporteur on Eritrea, 2013). Today, anyone in Eritrea is liable to arrest and detention, irrespective of their age, gender, religion or ethnicity. Any reason – or no reason at all – may be given for their arrest or detention.

WHO IS DETAINED AND WHY?

Old age or youth is not an excuse for avoiding detention. Reportedly, detainees of over 80 years of age and in poor health are held under rudimentary conditions in prisons. For instance, 82-year old Hassen Sheik Feres was arrested by the security forces in May 2007, without any charges. He is held in high esteem as a veteran liberation fighter for Eritrean independence in the 1960s.

INTRODUCTION

The issue of child soldiers in Eritrea is a central element of the grave human rights crisis in the country. It is not at all comparable to other African experiences. There are disturbing developments that need to be curbed before these trends reach a critical level of crisis, particularly in the event of an intrastate or interstate conflict, which could erupt in the country at any time. Reportedly, thousands of Eritrean child soldiers continue to be conscripted by the Eritrean government into the regular army.This has grave implications both for the international legal obligations of the Eritrean government and for the individual criminal responsibility of some senior government officials. Seen against its protracted history of human rights violations and virulent conflicts, Eritrea is a typical forthcoming model of transitional justice. The issue of child soldiers is not only one of the most dominant factors in the ongoing debate on human rights violations in Eritrea but also central to shaping future transitional justice options for Eritrea.

By addressing the pervasiveness of underage military conscription in Eritrea and the legal and political questions surrounding this issue, the paper explores possible and relevant answers to the following central question: what strategies are helpful for addressing the challenges of underage military conscription in Eritrea in the context of future transitional justice options for the country? In so doing, it offers practical recommendations for improvement in the future. The paper focuses on the excesses of the current authoritarianism that would be confronted in the post-authoritarian era and the need to identify such excesses in the context of transitional justice. To provide context, the paper will first present a brief historical background on the Eritrean post-independence era, focusing mainly on the increasing tendencies towards authoritarianism of the Eritrean government that finally led to the drastic post-2001 political crisis.

At the outset, it should be noted that the issue of child soldiers in Eritrea is to be seen in the context of excessive militarisation that has prevailed in the country, particularly since June 1998. The practice has effectively turned the country into one of the most militarised states in the world.