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[Eritrea] More Reactions to UN Sanctions - Q & A with Eritrean Lawyer Simon M. W/haimanot

Eritrean Government initiated anti-sanction protest marches being staged in some Western cities on Monday represent nothing but a shaky state of mind of a repressive regime that has long failed its heroic, freedom-loving people. The greater the number of misinformed marchers on the streets, the larger that perception will be magnified in the eyes of observers. Today we are talking with lawyer Simon Mebrahtu Weldehaimanot, now studying for his PhD in jurisprudence at the Notre Dame University in the United States. He is active member of two exiled associations - the Eritrean Law Society (ELS) and the London based CDRiE (Citizens for Democratic Rights in Eritrea). Simon will give his own legal interpretation of the sanctions later in this discussion, but first his thoughts on Monday’s demonstrations:

Eritrean Lawyer Simon M. W/haimanotSIMON MEBRAHTU WELDEHAIMANOT: I feel very sorry for those who are preparing to demonstrate because they genuinely feel that our country is wronged by the United Nations. To the extent that what they believe is best to their mind, they should be respected. They just need to be reached out. They could be good people of strong nationalist sentiments. To their mind, the State is above everything else.

But Eritreans are being polarised along different cleavages; opponents and supporters of the government being one. In this affair, many of us are no longer using our ability to reason and rationalize. Hence, some are committed to support the government no matter what it does because they hate the opposition. They have left the reasoning to officials of the government. They need to be provided with executable instructions, and the more detailed the latter are the better: no room is left for some reasoning. They complain, for example, about substantive and/or procedural injustices the State is allegedly subjected to. Yet, they say little with regard to denial of justice to citizens.

In this increasingly shrinking herd there are, of course, opportunists who are good at twisting facts and logic. If these folks have some level of decency, they should have called the government to comply with and thus have the sanctions lifted even before they become effective. If you are accused of smoking and ordered to quite, compliance is easier for you if you have never smoked. These folks should have cared for Eritrea’s interest first and Somalia’s second. Despite their conviction that the government’s role in Somalia is right, for the sake of Eritrea’s interests, a reasonable person expects them to call the government they love to change path.

MHRP: The sanctions are aimed at punishing Eritrean leaders mainly for their role in destabilizing Somalia. Will the UN measures help Eritrea move in the right direction?

Simon: If these are not leading to the desired direction, they need to be redirected to what the Eritrean public needs. For so long, the government in Eritrea has been escaping international condemnation for its repressive governance with the exception of the various reports from different quarters pertaining to human rights violations in Eritrea. It is indeed very sad that norms of democracy and human rights are not strictly enforced. Even those who claim to be champions of these norms are less inclined to step over when dictators make transgressions. The government in Eritrea made transgressions in Somalia. At least that is what it is accused of and eventually “convicted”, if I may use the term for lack of a better one. In this transgression other interests are affected for which reason the government is sanctioned. I am not close to the situation in Somalia and I will spare you a layperson’s opinion. However, I do firmly believe that some of the terms of the sanction are what the government should have got as a result of its repressive and illegitimate nature which current legal framework of the African Union prohibits. This is one area of law I follow closely.

I think one regular contributor to (is it Yosief Ghebrehiwet?) has explained the situation in a very impressive analogy. Consider a man who comes drunk every night and abuses his family. The family has been praying to see the man terminated even in a very ruthless manner. Now, let’s assume that the man is spotted in a bar and is arrested and eventually wrongly convicted for disturbing peace. Now, place yourself in the situation of the family. Would you thank God for finding a place for your abuser? Or would you feel bad because you think the conviction is wrong? In my scale of morality, even if in the unlikely assumption that the Eritrean government is innocent of what it is convicted of, I do welcome some of the terms of the sanction. For different crimes, the government deserves them.

As to the effectiveness of the sanction, there are various important factors. To begin with, the purpose of the sanction is worth noting. Is it punitive or/and disabling? If the UNSC intended the sanctions to have broader effect, which I think it is, the sanction could be effective. In addition, if member States of the UN take the sanction seriously, the latter could be effective. In this case, given that the government has rendered Eritrea a pariah State with little international support, it appears that the sanction could have notable effect. The role of Eritreans in having the sanction enforced is important factor too. Yet, we should realize that the sanction could be lifted if the government complies with what the interested quarters are demanding. However, this is a government that continuously follows the path of destruction and which cherishes controversies. As I have alluded to in reply to your other questions, the government is probably happy about the sanction.

MHRP: The sanctions are not directed at foreign investors such as Western gold mining companies operating in the country. The regime will probably soon end up making hundreds of millions of US dollars from its mining fields and the money is likely to be used for the purchase of weapons instead of improving the living condition of Eritreans. What should be done?

Simon: I do differ from your understanding that the sanction does not apply to “foreign investors such as Western gold mining companies”. To me and several colleagues with whom I have exchanged ideas, the sanction covers any foreign based income. Indeed, pertinent part of the Resolution reads:

    The Security Council … Decides that all Member States shall … ensure that no funds, financial assets or economic resources are made available by their nationals or by any individuals or entities within their territories to or for the benefit of such individuals or entities [which means] … entities, including but not limited to Eritrean political and military leadership, governmental, and parastatal entities, and entities privately owned by Eritrean nationals living within or outside of Eritrean territory.

My understanding of the aim of the sanction is not only punitive but also disabling. Thus, all foreign based income may fall under the ban. This is a Chapter VII resolution and thus binding upon all UN member States. I think this affects NEVSUN and all other companies doing business with the government. I think this also affects the 2% taxes paid by nationals abroad. I realize that the resolution contains exceptions under which the 2%, for example, may fall. The opposition needs to run a coordinated campaign to convince important countries to stop their citizens/residents from violating the resolution. It should have been a morality issue for Eritreans to stop supporting such a repressive and unaccountable government. But, law or morality is not enough unless you have a police.

MHRP: Why hasn’t the UN made public the evidence used to justify the sanctions?

Simon: The passing of the resolution is alleged to be defective procedure and/or evidence wise. On the scale of morality, this is high time to ask the government if it has been following due process of law with regard to the thousands of Eritreans rotting in prisons. In the correct answer to this question lies the chilling hypocrisy of the government and its supporters. But this may not justify substantive and procedural errors at the UN Security Council. I am not familiar with the practices and rules of procedure and evidence of the UNSC. I do know the UNSC is a political body. I also realize that political decisions often get a perfect legal dress. Having known the government in Eritrea, however, I am less inclined to suspect that there were defects in passing the resolution. If there were, why don’t the opponents of the sanction who have made the allegation prove it to us. If there are rules of procedure and evidence which have not been followed in passing the Resolution 1907, the protesters should demonstrate them to us.

Some of the arguments they have offered to us are, however, laughable. Some of them have submitted that the burden of proof at the UNSC is beyond a reasonable doubt but we are not provided with a footnote. A decent lawyer knows that there are different levels of proof used in different circumstances: beyond a reasonable doubt, preponderance, mere indicative, reasonable suspicion ... etc. We also have offenses of strict liability where no defence is entertained. In law, there are also presumptions which exclude the showing of evidence. I don’t need evidence to show me that the sun rises in the east or water runs down the slope in a normal circumstance. What do you make of the fact that almost all AU member states agreed to impose the sanctions. The level of support at the UNSC was also very high.

MHRP: Are the opposition forces doing enough to take advantage of the UN sanctions? What should they be doing at the moment?

Simon: Some of the opposition forces have military wings. It has been reported that these forces are planning to intensify their military actions calculating that the sanction which includes embargo on weapons will put the government at a disadvantaged position. In this regard you may say that something is being planned. I do not support peaceful or non-violent means of struggle religiously. In addition, I do think that oppressed sides can, in exceptional situation and as a last option, resort to force to end oppression. However, I do not think that it will be these minor military actions that bring the regime down. In fact, they may simply offer justification to the hapless National Service conscripts to need their guns, at least for self defence. They may simply turn considerable Eritreans to re-embrace the government as a lesser evil. In addition, military actions coming from Ethiopia’s side may turn the point of the protesters more credible. Considering the current configuration of the military wings, I do not support, nor call for more military actions in the context of the sanction. In addition, embargo on weapons is not a sanction that the current legal framework of the African Union provides for unconstitutional government like the one in Eritrea.

The other terms of the sanction can be executed peacefully. With regard to these, I don’t think that a satisfactory work is being done. Admittedly, our recourses are very limited. Yet, unfortunately, the few able people are spending their time to show us who writes better English. Our activists are indulged in hair splitting arguments and attacking each other in an attempt to win arguments. We are in our own fight which is increasingly polarizing the activists. In fact, what the writers, you may call them bloggers, often do is to write their opinion from the comfort of their home. You have a draft on Saturday, polish it on Sunday and have it posted in the afternoon. On matters that require going to libraries, on matters that demand submitting serious memos and knocking diplomatic doors, we are very poor.

Here is what I would like the opposition to do. First, we need to demonstrate the fact that the sanction is a deserved one for transgression of the government over Eritreans. The current legal framework of the African Union is one of the areas that I follow closely. Unconstitutional governments such as the one in Eritrea (not the established semi-monarchs) are prohibited in the continent. Some of the sanctions due for such a government are the ones the UNSC has imposed. Two years ago, a memorandum was submitted to the Peace and Security Council of the African Union calling for almost identical sanctions on the government for its delinquency on fundamental principles of democracy. The following were what the signatories demanded:

  1. Immediate suspension of the transitional ‘Government of Eritrea’ from participating in any of the African Union’s organs; and,
  2. Withholding of recognition of the transitional Government of Eritrea which must be enforced by visa denials for its officials, restrictions of government-to-government contacts and trade.

Around 1000 Eritrean activists signed the memorandum. This was a very serious submission contained in a background paper to the memorandum which is now being published by the Journal of African Law. Thus, what the UNSC imposed is what we demanded, of course as a sanction for a different crime or wrongful act. No matter the dynamics in Somalia, the government deserves these sanctions.

Second, I would like the opposition to adopt a broader interpretation of the sanction. Let me clarify this in reply to your following question.

MHRP: Why are anti-sanction protests not allowed in Eritrea?

Simon: You can also see the aims of the protests from the fact that no similar actions are being taking place inside Eritrea. As you put it, demonstration is not a respected right in Eritrea. It is something disallowed. Eritreans in Eritrea have no business in supporting the transgressions of the government in Somalia. Having being at the receiving end of the abuses of the government, I don’t think Eritreans in Eritrea have any desire to support the government even in its righteous stand. It is humanly very difficult. Dictators can force people to streets using the gun; they can force the crowd to carry banners but you they cannot make the crowd look passionate. And impassionate folks are not good for the TV station: they don’t help you to claim that you have popularity. The government must have learned from the forced rallies of the Derg. In addition, the government is so insecure that even rallies in support of its actions carry some risk. Better to avoid them at all.

I do agree that the main objective of the anti-sanction campaign is to collect money from Diaspora Eritreans and to refresh that appearance of poor Eritrea standing against the unjust world. It is designed to show the world that the government has popular support. As I have explained with regard to the other questions, yes, collecting money for the government without any reliable check on the destination of the money is an activity banned under the sanctions?

MHRP: Some say the government could easily have avoided the sanctions by making some concessions, for instance, recognizing the UN backed interim Somali government and denouncing Al-Shabab’s terrorism. Others think the government wanted the sanctions so that Eritreans will continue not to pay attention to injustices at home. Do you agree with such view?

Simon: I agree the sanctions were avoidable. Remember, they are also non-permanent: something which could be lifted. The government may not like the terms of the sanction which tends to affect its resources base. Yet, I do agree that the government cherishes controversy and situations that with some twisting of logic and facts would create an appearance of the “tiny, principled and just Eritrea, under the leadership of PFDJ, facing the unjust world.” Of course this is cooked merely for the consumption of the folks who are now organizing to protest.

Let me give you a few examples. Towards the end of the 1980s, the US threatened the Derg regime with sanctions but also offered possibilities for re-consideration upon improvement on the human rights front. Pretentiously, the Derg sent a delegate but the delegate (Dawit Welde Giorgis), unaware of the intricacies with the highest echelon of the Derg, worked and succeeded in aborting the sanction. To his dismay, he found out that the sanction was wanted by the Derg government. What was needed from the delegation was a false gesture.

To give you another similar example, the PFDJ government could have settled the boarder issue in accordance with the EEBC’s ruling. At the very least, it could have got Eritrea a strong international diplomatic support. But this does not serve the government. Eritrea should face the whole planet in an antagonistic relationship. When the Ethiopian government turned 180 degree and rejected the EEBC’s ruling, tacitly Asmara was pleased. Now you have a controversy for which the other side is to be blamed and which serves as a justification to all the ills you do.

Again, consider this question. What would be the reaction of the government if Addis Ababa were to accept the EEBC’s ruling and be ready to give further concession in favour of Eritrea? For the government, this move would eliminate, again only in the eyes of the protesters, a good justification for the miserable situation the country finds itself in. The top excuse being eliminated, another one needs to be discovered.

MHRP: The Eritrean government says it is in Somalia in order to weaken Ethiopia which it says might be mulling to take over the post city of Assab by force. Is that a good enough reason to side with terrorists?

Simon: Some may say that the government is in Somalia to secure Eritrea’s interests. Having seen how little this government cares for its people, this argument does not resonate with me. A year ago, at a conference organized by CDRiE, I heard two Eritrean scholars agreeing that the government is indeed putting at risk the sovereignty of the State: an argument which I also buy. Let us consider this scenario. If South Korea were to invade North Korea in an impressive zero cost operation and declare to the world that there will be one Korea as democratic and as prosperous as the South was, do you think the international community would prefer sovereignty of a State at the expense of the wellbeing of millions of North Koreans?

For enforcement, international law partly depends on international diplomacy and relations. In addition, State sovereignty is just one principle of international law as the recently reinforced right of peoples to democratic governance is. The more the government keeps Eritrea in a messed situation, the more appealing the argument that Eritrea cannot be a viable State becomes, the more Ethiopia feels emboldened to push that argument forward, the less likely opposition from the international community and even from Eritreans will be. Remember, tens of thousands of Eritrean youths have defected to Ethiopia. Political boundaries matter less than the wellbeing of the citizen. On the other hand, Eritrea that treats its citizens in a dignified manner and Eritrea that looks attractive to the international community has all the means to repel external aggression at a little cost. Just put in place a supreme court whose reasoning fires international imagination, a university that towers in the region, a parliament that fights.

Media and Human Rights Project