Eritrea and the Commission of Inquiry: What Happens Next?

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Commission of Inquiry Bronwyn BrutonThe Commission of Inquiry on Eritrea has recommended to the Human Rights Council that Eritrea be referred to the International Criminal Court ICC. But, here is why that is unlikely to happen.

By Bronwyn Bruton,

As expected, the United Nations Commission of Inquiry on Eritrea (the COIE) has recommended to the Human Rights Council that Eritrea be referred to the International Criminal Court and that the human rights situation in Eritrea constitutes a “threat to international peace and security”.

The COIE is a panel of three independent human rights investigators who are not employed by the United Nations, do not represent the views of the United Nations, and whose recommendations carry no legal weight. It should be noted that the COIE’s suggestion that Eritrea constitutes a threat to international peace and security is probably also outside of the COIE’s mandate and within the mandate of the UN Somalia and Eritrea Monitoring Group (SEMG), which in its own reporting in recent years conflicts with the COIE’s findings.

In order for the COIE’s report to result in any tangible outcome it must be accepted by vote by representatives of the UN’s Human Rights Council, which will also vote on the specific recommendationslaid out by the Commission. This vote will take place on June 21 or 22.

If the Human Rights Council votes to accept, the report would then go to the UN General Assembly’s Human Rights Committee. It is possible that the Human Rights Council will not vote to accept the report given the widespread and serious concerns about themethodology used by the Commission to determine its findings. The COIE itself notes that in response to its call for written submissions on the human rights situation in Eritrea, it received approximately 45,000 responses, the “vast majority” of which werecritical of its initial report.

If the Human Rights Council accepts the report, it would then fall to the Council’s president to present the report to the UN General Assembly’s Human RightsCommittee, which in turn would vote on whether or not to forward the report to the General Assembly. That vote would occur sometime in October 2016.

The General Assembly would then have to vote, in October or November of 2016, to forward the report and its recommendations to the UN Security Council. But the Security Council would be unlikely to consider the matter before June 2017. It would be up to the Security Council to achieve a majority vote (without a veto from any of the Permanent Five members) in favor of supporting the COIE report’s finding, and the Security Council would then refer the matter to the International Criminal Court.

The prosecutor of the International Criminal Court, Fatou Bensouda, would conduct an independent review of the evidence to determine whether to bring the case to trial, which would involve issuing arrest warrants and one or more indictments. That timeline is uncertain: the independent review could itself take over a year. The trial itself would also take at least a year, or more, to conduct.

The ICC prosecutor does in theory have the authority to skip the process described above and to act immediately on the COIE’s recommendations. Given the strong backlash in the African Union over the ICC’s previous prosecutions of African leaders, however, there would be a high degree of political risk involved in that decision and it is, therefore, unlikely to happen.