Recently I read a paper entitled “Prosecuting the main perpetrators of international crimes in Eritrea: Possibilities under international law” written by DR Mekonnen and JL Pretorius which alleges that a number of high-ranking Eritrean government officials have committed heinous violations of international law that amount to international core crimes. Furthermore, this paper claims to explore possible options for the prosecution of those high-ranking government officials for international crimes pursuant to Security Council referral as stipulated under article 13(b) of the ICC Statute. I believe this paper can serve as a good case study for those who are interested in understanding the manner in which international law is and has been abused for self-interested extralegal and immoral motives. Here are some points that prove this point.

1.“No War No Peace”: the point that Eritrea’s ‘no war no peace’ situation should be at the center stage in any discourse on the situation of human rights in Eritrea can not be stressed enough. Any country that find itself in a situation which is not of total peace will find its endeavors to satisfy the material as well as spiritual needs of its people held back by this situation of ‘no peace”. As the result of which its people will face hardship in their day to day life, hardship that wouldn’t exist in normal peaceful situation. This abnormal hardship in turn would generate reactive shortsighted discontent, which unless controlled by stricter government measures would endanger the long term viability of the country. It is for this reason that objective observers give a ‘no peace’ situation of a country due regard in their assessment of human rights in that country. Contrary to this, the above-named paper provides “a situation of ‘no war no peace’ has persisted between the two countries [Eritrea and Ethiopia] for the last six years. However, in a strictly legal sense, there is no state of emergency in Eritrea”. The ‘no war no peace’ situation in Eritrea is unceremoniously dismissed because it does not satisfy legal technicality. The authors seem to be following the logic of “If the reality does not confirm to theory discard the realty”.

2.“Verifiable sources”: Another intentional shortcoming of the paper is the failure to verify primary sources of information upon which the allegations are based. The authors tried to cover up this deficiency by claiming that “Most of the accounts and allegations in the communication have been sufficiently verified, directly or indirectly, by UN mandated bodies, immigration tribunals, foreign municipal courts and regional judicial bodies” as if those bodies themselves are beyond reproach and above the need for verification. In spite of the cover up if one digs deeper one finds two primary sources:

a.“Asylum Seekers”: those are Eritreans, mostly young Eritreans who have or are trying to migrate to the West. As those people have found out, the surest way to gain entry in to the West is to claim political persecution victim-hood. It is a well known fact in the migration industry that a “I have no problem with my government I just want more than what my government can provide” response does not fly with western immigration officials.

b“Opposition”: those people are Eritreans whose sole aim and motivation is the acquisition of political power. However, due to their political bankruptcy the only avenue available to them in order to achieve their aim is smear campaign against Eritrean officials. And, at the present, the hottest smear currency in western and international power corridors is that of “human right violation” and “international crimes”.

c.Another devilishly great method used to overcome primary source verification requirement in “human right violation” and “international crimes” discourses is the method I would like to call the circle of deception. In its simplest form it looks as follows: X refers to Y, Y refers to Z, and Z refers to X.

3.Implementation of the Constitution: The paper, first concedes that the Eritrean government took the initiative to form the Constitutional Commission and actively participated and supported the drafting and ratification of the Constitution, but then continues to say “ever since the outbreak of the new war with Ethiopia, the Eritrean government has exploited the conflict as a pretext not to implement the constitution that was drafted and ratified with its full support.” This does not make sense. As the paper claims, if the Eritrean government does not really want to implement the Constitution and if it is such a master of violation of human rights and committer of gross international crime wouldn’t it have figured out the best way not to implement the Constitution would be at the earliest possible moment by not forming the Constitutional Commission or by hampering the drafting process or even by not ratifying the Constitution. The authors are not interested to explain this contradiction as it does not serve their interest, even though the explanation is simple and clear. The Eritrean government did in fact want to implement the Constitution that is why it took the initiative to form the body entrusted with the drafting of the Constitution and actively supported its works and actively worked for the ratification the Constitution. However, the out break of the war and its aftermath hindered the process of implementation of the Constitution.

4.Referral by the Security Council: The paper paints so dire a picture, I thought its authors wouldn’t have any problem in convincing the Security Council that due to the seriousness of the case international peace would be undermined and therefore the Security Council should refer the case to the International Criminal Court. Nevertheless, the authors know that upon close scrutiny their allegation wouldn’t hold water and that is why they decided to use the back door and make even more wild allegations claiming that Eritrea committed some international crimes and terrorist acts and aided in others in its neighboring countries. The reasoning of the authors is clear, they believe that because of the already biased and self-interested approach of some members of the Security Council to the problems in the horn of Africa, any claim of cross boundary international crimes and human rights violations would find sympathetic ears. If this is not a clear manifestation of the contempt on international law, nothing is.

5.Enforcement of the decisions of the EEBC: Another area where the authors show their true colors is when they express, or rather mimic, their view on the enforcement of the decisions of the EEBC. According to the paper, “a boundary commission, established pursuant to the Algiers Peace Agreement, resolved the border conflict in April 2002 by a final and binding decision which delimitated the common border between the two countries. Due to Ethiopia’s intransigence to genuinely implementing the decision of the boundary commission and Eritrea’s diplomatic and political ineptness, the contested border remained undemarcated on the ground.” According to the logic of the authors “Eritrea’s diplomatic and political ineptness” is a valid ground for the non enforcement of the boundary decision, or to be more relevant, legitimate ground for the violation of international law. It seems international law is only for the powerful and the minion of the powerful.