In her latest article titled ‘US-Eritrea Relations: Soured by Design,’ Sophia Tesfamariam, as usual, listed a range of apologetic fabrications to substantiate the callousness of the tyrannical regime in Eritrea. In international criminal law, this is called ‘aiding and abetting’ in the commission of international crimes. I will substantiate this later. Before that let me briefly state on which points of Sophia I would like to focus.

Attacking the Defenseless

Her article is full of endless accusations – unsubstantiated and ill founded allegations. She has accused a lot of people and organizations and convicted them in abstentia. The most disturbing accusation is the one she labels against the imprisoned members of the G-15 in that these people are not even in a position to legally defend themselves. Sadly, she uttered whatever excessive words she has. I have amply discussed the predicament of the G-15 and their illegal detention in my other academic contribution: ‘The Reply of the Eritrean Government to ACHPR’s Landmark Ruling on Eritrea: A Critical Appraisal’ 32 (2006) Journal for Juridical Science. Therefore, I will not delve into details now. Rather, I will focus on the following points: (1) the crude accusations Sophia has labeled against EMDHR (an organization to which I belong) and its members (2) and her ill founded justifications based on a farfetched argument supposedly related with the theory of ‘limitation of rights.’ Practically, it would be a waste of time and resources to address every nonsense point listed in her crude and unprofessional presentation; hence, I will focus only on the two points.

Defending One Self

My colleagues at EMDHR and myself are lucky enough to defend ourselves, because we live in a democratic country, as she does, and have ample access and resources to conquer her willful, unlawful and malicious accusations against us and other innocent compatriots. Sophia has portrayed our hard won accomplishments at EMDHR as a conspiracy plotted to destabilize Eritrea. She has referred to EMDHR unashamedly as a group of ‘children, encouraged and funded by [the US] and others’ to invent ‘the most brazen lies’ about Eritrea. This is not only unlawful but also out right and deliberate distortion of facts. EMDHR is a civil society organization, advocating for human rights and democratization in Eritrea. Truly, because of the vengeful and intolerant behavior of the regime in Eritrea, an organization like EMDHR cannot be established in Eritrea. As a last resort, the organization was formed and officially registered in South Africa in 2004 according to the relevant laws of the republic. It has its own democratically elected leaders as well as mission and objectives clearly defined in its constitution. By no means can EMDHR be labeled as an organization bent to destabilize Eritrea. Conversely, it is the PFDJ regime and its unrepentant supporters such as Sophia Tesfamariam who are relentlessly working to destabilize not only Eritrea but also the whole Horn of Africa. What EMDHR does is fight lawfully and peacefully for our rightful place in Eritrea and those of our people who are suffering under the most repressive tyranny in our history. EMDHR has never encouraged anarchy and lawlessness but has consistently called for a democratic, constitutional, legitimate and accountable government which must be hired and fired by the Eritrean people any time at their disposal. That is our only declared objective; if Sophia doubts this, she can check the constitution of EMDHR. That is our guiding document. As regards the receipt of funding from NED, EMDHR has not done so illegally or secretly. In fact, the matter was officially publicized by EMDHR at an earlier instance, reflecting on the transparency of the movement. EMDHR is just one of hundreds (or may be thousands) of recipients of such a generous grant aimed at nurturing nonviolent means of struggle. This was done openly and transparently. It is not clear what Sophia is trying to relate this with. May be, she thought she has divulged a top secret or a ‘classified file’ in which case her assumptions are utterly erroneous.

Sophia’s another pretentious but futile contention is that related with the implementation of the 1997 Constitution. Setting aside the other incoherent and unprincipled arguments, I would like to challenge her flawed assumption that ‘most of the articles in the Constitution are being implemented.’ It is not clear to which specific articles she is referring. The fact of the matter is that the Constitutional in its entirety, especially its provisions related to individual freedom, has never been implemented in Eritrea. I am not privy of her legal background. However, I can offer a simple illustration on how naïve she is when it comes to legal issues. If she thinks, for example, that Article 15(1) of the Constitution is in force, why is that thousands of people are languishing behind bars where the same constitution has clearly stipulated: ‘No person shall be deprived of liberty without due process of law.’ Why is that individuals, once arrested, are not brought to a court of law within 48 hours as stipulated by Article 17(4) of the Constitution? Sophia may deny the disturbing reality of detention without trial of tens of thousands of innocent Eritreans in the hundreds of prison cites in Eritrea. However, she has admitted that at least some members of the G-15 are still in prison, now for more than six years. Why are the Constitutional provisions inapplicable for them and why are these people kept in detention without trial far too long and contrary to the Constitutional provisions mentioned above? Why …

Eritrean Transitional Codes

As far as fundamental rights and freedoms are concerned, one does not even need to invoke Constitutional provisions. The following provisions are more than enough in Eritrea to safeguard the individual freedom of those who are detained without trial and are subjected to other forms of brutality, had there been respect to the rule of law.

Transitional Penal Code provisions:

• Article 2(1) - (principle of legality)
• Article 4, as amended by Article 4 of Proclamation No. 4/1991 – (equality before the law)
• Article 5 – (the principle of non-retroactivity of laws)
• Article 23 – (the definition of a criminal act)
• Article 416 – (the right to challenge unlawful arrest or detention)

Transitional Criminal Procedure Code provisions:

• Article 1, as amended by Proclamation No. 5/1991 - (the purpose of the Criminal Procedure Code)
• A combined reading of Articles 4, 19, 20, 27, 29, 49, 50, 51, 59, 61, 62 and 94 gives a set of fundamental rights and freedoms duly protected by the Transitional Criminal Procedure Code. These rights and freedoms include: the right to a writ of habeas corpus; the right to be brought before a court of law within 48 hours of arrest; the right not to be detained without a warrant of arrest or a court order; the right to be presumed innocent until proven guilty beyond reasonable doubt; the right to remain silent and the right not to self-incriminate; the right to be visited by judicial officers; the right to occasionally get in touch with close relatives, receive and send letters, buy, borrow and read newspapers and books; the right to hire a lawyer; the right to be tried in a public and impartial court; etc.
• Some of the above cited provisions are to be read in line with article 8(1) of Proclamation No. 1/1991 and Article 179 of the Transitional Civil Code

 Transitional Civil Code provisions: 

• Article 8(1) – (rights of personality and fundamental freedoms)
• Article 11 – (the right to liberty and privacy)
• Article 14 – (the right to freedom of thought)

One must also note Preambular Paragraph 5 of Proclamation No. 37/1993 in which the Transitional Government of Eritrea has explicitly committed itself to promote fundamental rights and freedoms until the establishment of a democratic constitutional order. Proclamation No. 37/1993 together with Proclamations No. 23/1992 and No 52/1994 make the Interim Constitution of Eritrea. The fact that the 1997 contentious Constitution is not yet implemented should not even create any confusion as far the government’s blatant human rights violations are concerned. All of the transitional codes and the Interim Constitution in Eritrea are more than enough to safeguard individual freedom and hold to account the notorious violators who have monopolized sate power brutally.

It must also be remembered that all of the above rights are duly recognized by the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights (ACHPR), two of the major international treaties Eritrea has ratified. In the context of the current debate, the following rights make the core of the blatant violations of the Eritrean Government: (i) the right to life and not to be arbitrarily deprived thereof (Article 6(1) of the ICCPR and Article 4 of the ACHPR); (ii) the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment (Article 7 of the ICCPR and Article 5 of the ACHPR); (iii) the right not to be subjected to arbitrary arrest or detention (Article 9 of the ICCPR and Article 6 the ACHPR); (iv) the right of persons deprived of their liberty to be treated with humanity and with respect for their inherent dignity (Article 10 of the ICCPR); (v) the right to fair trial (Article 14 of the ICCPR and Article 7 of the ACHPR); (vi) the right to effective remedy for any serious violations of human rights (Article 2(3) of the ICCPR and Article 7(1)(a) of the ACHPR); (vii) the right to reparation for violations of human rights (Articles 2(3), 9(5), and 14(6) of the ICCPR); (viii) the obligation to bring to justice the perpetrators of human rights violations (Article 2(3) of the ICCPR); (ix) and the right to freedom of movement (Article 12 of the ICCPR and Article 12(1) of the ACHPR). The international protection of the fundamental rights enumerated above is without prejudice to other guarantees accorded by the Universal Declaration on Human Rights and other treaties Eritrea has thus far duly ratified. There is a reliable and consistent body of information that Eritrean Government officials have blatantly violated all of the above rights and such violations are internationally condemned; if brought before a competent national or international court, all individuals implicated in these violations will undoubtedly be held criminally responsible for their acts. Sophia is trying to cover this, albeit futilely.

Nebulous Cause

I will now address Sophia’s deliberate or naïve misinterpretation of the theory of ‘limitation of rights.’ She is telling us that suspending certain rights during war is not unique to Eritrea. This point calls for consideration of two important legal notions: limitation of rights and state of emergency. Both of them were helplessly abused by Sophia. In the first place, one should ask whether there is currently war or, in the strictest legal sense, a state of emergency in Eritrea. In this regard, Sophia seems to be arguing in ‘a pure legal sense,’ irrespective of her naivety in legal discourse. I say in a very clear legal tenor that there is no war or state of emergency currently in Eritrea. I will explain why. True that there is unresolved border dispute between Eritrea and Ethiopia, but legally speaking this does not amount to a situation of war or a state of emergency. Regardless of the outstanding and unresolved issue/s between the two countries, in purely legal terms the border conflict has come to an official end on 18 June 2000 when the two countries signed the Agreement on Cessation of Hostilities. This was finally buttressed by the ratification of the Algiers Peace Agreement on 12 December 2000. Since June 2000, there has never been war between the two countries and as such there is nothing which amounts to war or a state of emergency in Eritrea – legally speaking.

Even if one assumes that there is a state of emergency in Eritrea, there are fundamental tenets of international law which shall never be undermined even during a state of emergency. Anyone who is conversant in the language of jurisprudence clearly understands that rights can only be limited legally and according to established legal procedures. The reverse is true in Eritrea. Established scholars of international law, such as Professor Antonio Cassese, former President of the International Criminal Tribunal for Yugoslavia, assert that international human rights law contains specific provisions which regulate the actions of states during state of emergency. As far Eritrea is concerned, this emanates from Article 4 of the ICCPR. Accordingly, any state can only temporarily derogate (but not for many years as is done by the PFDJ) from part of its obligations under the ICCPR and for this to happen two conditions must be fulfilled. Firstly, there must be a situation that amounts to a state of emergency which is manifestly lacking in present day Eritrea and such an emergency must be proclaimed officially and in accordance with legal provisions that govern a state of emergency. Let alone now, the PFDJ has never proclaimed formally a state of emergency even when Eritrea was at a full fledged war with Ethiopia. Having fulfilling the above requirement, a state is obliged under international law (Article 4 of the ICCPR) to officially inform of its declaration of a state of emergency to the international community through the UN Secretary-General. It must also state the provisions it has derogated from temporarily and furnish reasons for doing so. Eritrea has never done any of this. In all circumstances, derogation from international obligations (limitation of rights) must be compliant ‘with requirements set out in the [ICCPR] itself, including that those measures be limited to the extent strictly required by the exigencies of the situation.’ All such measures must be consistent with the obligations of Eritrea under international law, ‘particularly the rules of international [human rights] and humanitarian law and peremptory norms of international law.’ Shamefully, Eritrea has never done this. A most important point is, however, the following rights are entirely absolute and non-derogable under any circumstance even during a sate of emergency: the right to life; the prohibition of torture or cruel, inhuman or degrading punishment; the prohibition of slavery, the slave trade and servitude; and freedom of thought, conscience and religion. I will repeat. These rights are ABSOLUTE and international law does not allow the limitation of these rights regardless of whether Eritrea is in war, in floods, in earthquake or in other national catastrophes. Those rights are absolute even when: midrin semayn enetetelagebe, kem ayni merefi’e kulu entetsebebe … If Sophia does not know this, she has to go first to a law school (if she has never been there) and in the meantime she must strictly desist from meddling in purely legal issues.

I will give another pertinent example elaborating on the non-existence of state of emergency in Eritrea. As we all know, one of the major issues of disagreement between the G-15 and President Isaias was the delayed regular sessions of the National Assembly of Eritrea. The fact that the regular sessions of the National Assembly were unduly delayed during the 1998-2000 war was interpreted to mean an obstacle necessitated by a state of emergency. Irrespective of the futility of such an argument, the National Assembly was later convened in two different times. This was after the cease fire. The National Assembly convened firstly in August 2000 and secondly in February 2002 regardless of the length of intervals between the two meetings. This supports my claim that Eritrea was not in a state of emergency after June 2000, the time when the Eritrean Government signed a cease fire with Ethiopia. According to Article 4(3) of Proclamation No. 37/1993 (the Interim Constitution), the National Assembly of Eritrea is to be convened at every six months. Paradoxically, the National Assembly has never been convened after February 2002, now for more than five years. Nothing is known whether this organ is informally abolished but circumstances attest to such an assumption. If anything, this again attests to the irrefutable fact that what has befallen Eritrea is the worst type of tyranny the world has ever seen in the new millennium. I am quite sure that Sophia and her likes (the Abebas, the Asgedes, the Astiers, the Berhanes, the Eliases, the Esayases, the Ghidewons, the Haileabs, the Hailes, the Tekies and others) do not have the guts to talk on issues like this.

Legal Implications

I cannot conclude without reminding Sophia the legal implications of her irresponsible acts. The implications are also applicable to other abettors. The fact that PFDJ leaders have perpetrated international crimes, such as crimes against humanity, has now become a matter of general knowledge. The violations fall under the jurisdiction of the International Criminal Court (ICC). It is only a matter of time that all such culprits will be held accountable for their crimes, be it before the ICC or other international or mixed tribunals as was the case with other culprits from other regions of the world: the Balkans and Rwanda; and lately Cambodia, Central African Republic, East Timor, Liberia, Sierra Leone, Sudan, Uganda and others. There is no doubt about this. Sooner or later, all culprits will be held accountable for their atrocious crimes. The fate of Sophia and other abettors is not different from that of the principal offenders. In international criminal law, there is what we call the principle of individual criminal responsibility. It emanates from a famous Nuremberg Judgment in which it was held that ‘crimes against international law are committed by men [or women], not by abstract legal entities.’ Those men/women are people like Sophia. A person like Sophia can be criminally liable when s/he did not physically commit a crime but is engaged in the perpetration in several other forms or modalities of criminal conduct. Involvement in a criminal act can be either in the form of perpetrating, ordering, aiding, abetting, planning, conspiring, inciting or any other act which involves common criminal purpose or design (Article 25 of the ICC Statute). Although a varying degree of culpability is to be taken into account at the sentencing stage, all participants in a common criminal action are equally responsible and are to be treated as principals during conviction. In terms of the degree of responsibility, international law makes no distinction between ‘the man who strikes, and a man who orders another to strike’ or who encourages or bolsters another to kill, imprison, injure, torture or do whatever illegal act defined as international crime.

As one of the leading experts of disinformation, Sophia is distorting facts willfully, knowingly and unlawfully. Against reliable and consistent body of information on the egregious human rights and humanitarian law violations of the Eritrean Government, she has depicted (in several of her publications) victims of human rights violations as traitors, coup makers, sell-outs, self serving individuals, etc. By deliberately distorting facts and events on personal, political or other ulterior motives, she is willfully, knowingly and unlawfully encouraging senior government officials to continue their acts of barbarism with impunity. In international law, this entails individual criminal responsibility. In this regard, a pertinent comparable lesson is to be drawn from one of the decisions of the International Military Tribunal for the Far East (the Tokyo Tribunal of the 1940’s). A person by the name Hashiomo, who never held high government offices during WWII, was, for example, convicted by the Tokyo Tribunal for his publications, support and encouragement devoted to international crimes. Similarly, other international judicial bodies, notably, the International Criminal Tribunal for Yugoslavia and the International Criminal Tribunal for Rwanda have firmly upheld this doctrine in their landmark judgments (such as Tadic, Akayesu, Furundzija and others), facilitating the culmination of this cardinal principle of international criminal law in the ICC Statute. Following analogous line of argument, individuals like Sophia Tesfamariam can be held criminally responsible for the continued support and encouragement they are offering to the perpetration of atrocities in Eritrea. Most of the arguments discussed above also hold true under the relevant provisions of the Transitional Penal Code of Eritrea: Part I, Book I, Title II, Chapter III, Articles 32-40 (Participation in an Offence).

It may not be too long to see individuals like Sophia Tesfamariam face the wrath of national or international justice for their active involvement in the commission of international crimes.

In International Criminal Law is the Recourse of the Defenseless!

Daniel R Mekonnen

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