What do we need from the ICC?

Photo: Taj Haroun

Photo: Taj Haroun

“The Danish Report seems more like a political effort to stem migration than an honest assessment of Eritrea’s human rights situation.”
— Leslie Lefkow

June 23rd 2016, Tel Aviv, Israel. Thousands of Eritrean asylum seekers gathered outside the European Union Embassy. They marched across the city and rallied outside its doors. They called upon the EU to honor the findings of the UN Commission of Inquiry which resolved that the “crimes of enslavement, imprisonment, forced disappearances, rape, persecution, murder, torture and other inhuman acts have been committed as part of a widespread and systematic campaign against the civilian population since 1991.” 

That very same commission stated that, “Unfortunately, the gross human rights violation that we have documented are continuing to take place. They often happen behind closed doors and they continue to instil fear in Eritreans, not only in the country, but also in the diaspora.” A substantial part of this diaspora now resides in Israel where refugees have fled in their thousands across Sudan, Libya and Egypt to reach the relative safety of a country which refuses to grant them status. Of the some 40,000 asylum seekers who have fled to Israel, only 8 Eritreans have been granted refugee status and one Sudanese, and 4 of those since June of this year as the refugee crisis reaches critical mass in the state.

Eritreans are by no means welcome. Their lives have been made increasingly difficult by the suspicion which pervades the Eritrean refugee crisis. It is hard for these refugees to forget the impact of a totalitarian state which arbitrarily arrested its citizens, committed religious and political persecution, encouraged families to report on one another and turned communities on themselves. Israel justifies its stance on their asylum requests, amongst other things, on a report by the Danish Immigration Service which has been used across Europe. This report contradicted the many accounts of Eritrean refugee and cited: “Most people who leave Eritrea do so for economic reasons and because of lack of livelihood opportunities and not because of political repression”.

This description has had devastating consequences for the reception of Eritreans worldwide, especially within Europe. However as Leslie Lefkow commented for Human Rights Watch, “The Danish report seems more like a political effort to stem migration than an honest assessment of Eritrea’s human rights situation.” No evidence can be found that the authors of this report interviewed those who had either suffered from or witnessed human rights abuses. The report seems confused and highly hypothetical, acknowledging that they were unable to gain independent access to prisons and courts and have little information on the fate of Eritreans who return from flight. Eritrean refugees themselves are fearful of what might happen to them now they have left- if they weren’t in danger of imprisonment and execution when they left, they claim, by leaving the country they are considered traitors and their imprisonment would be certain. 

“Israel justifies its stance on their asylum requests on a report by the Danish Immigration Service which has been used across Europe. Its descriptions has had devastating consequences for the reception of Eritreans worldwide. “

The importance of the report was originally missed. However it has became increasingly cited as a proof that the Eritreans were not ‘real’ asylum seekers in Israel, Europe and beyond. A claim that perhaps would have been made regardless. Nevertheless this paper allowed it to be unfairly substantiated. The findings from the UN Commission were more precious to the Eritrean diaspora than they could have known; a source of validation for their situation. The international condemnation of despotic regimes clearly carries weight, even if we are quick to dismiss it as worthless. In June 2015, President Omar al-Bashir, the only man indicted by the ICC for all three of its core charges - crimes against humanity, genocide and war crimes - was allowed by the South African government to leave South Africa, despite the ICC’s indictments and issuance of two warrants. It captured global headlines and was seen as a humiliating move for the ICC, not just that its authority was contravened but by a regional leader, supporter of the ICC and emblematic democracy of the area. Certainly, we cannot, as many did at the time, write off the incident as catastrophic for the ICC, proving that its existence was meaningless. The political relationships between the African states and the ICC is context relevant and more complex than such a dismissal would allow. Regardless, such an event caused outrage and dismay globally, especially amongst the Sudanese refugees scattered worldwide.

Some of these refugees have found their way to Israel where, like the Eritrean asylum seeking community, they receive little protection from a state refusing to acknowledge their refugee status and are more likely to be thrown into the open detention centre in the Negev desert, Holot. Few could claim that the genocide in Darfur is anything less than the war crime it is. Yet both the Sudanese and Eritrean refugees are treated as one. The judgment of the ICC appears to be no more effective at substantiating the claims of Sudanese refugees than arresting their President. What good is an institution if it can achieve neither of these aims.

President Isaias Afewerki

President Isaias Afewerki

Despite this, on that day in June, the Eritrean refugees called on the ICC to indict Asaias Afwerki, the president who has held control of the young nation since its independence. In a direct quote from the letter handed to the EU embassy after the Eritrean protest in June, "In light of the aforementioned situation of Eritreans, we kindly call on the EU, all its member states and all institutions to... cooperate to enforce the perpetrators to be brought before the International Criminal Court.” ‘Afwerki to ICC’ was the chant on the lips of every Eritrean, just as ‘Al-Bashir to ICC’ had resounded at the Sudanese march earlier in February. The Eritrean population would have been more than aware of the lack of ramifications the ICC had had on Sudan and al-Bashir and yet their demands were the same. 

The question is often posed as to whether the role of the ICC is to punish the guilty or record the facts. There is a third option, which perhaps lies closer to the second. It would be quixotic to think that the ICC, an organisation without its own police force, would be able to enact the punishments it decrees without institutional support. It would be equally quixotic to ignore the socio-political complexities which make it hard for the ICC to simply ‘record facts’. If it can achieve these goals, which it often does, there is an inherent value in its statements to the victims of the regimes it prosecutes. 

Elizabeth Dykstra McCarthy