A Dutch Foundation of Eritrean refugees, Foundation Human Rights for Eritreans, has filed a lawsuit in the Amsterdam court against the European Union (EU) for its role in financing a road building project in Eritrea that uses forced labor. The Foundation, together with their Dutch Lawyer Emiel Jurjens, demand the EU stops the 80 million euro support to Eritrea. While the European Commission acknowledges that the funded project entails labour from Eritrea’s indefinite and forced national service, in direct violation of EU’s fundamental principles and international law, it deflects blame by claiming that the EU is not paying directly for labor itself but rather for the equipment. Besides the use of forced labor, the EU has no direct oversight or proper monitoring scheme to safeguard the Eritrean national conscripts forced to work on the project or ability monitor how the money is spent. The EU has already pledged 80 million and is looking to spend an additional 120 million on subsequent phases. The lawsuit enters uncharted legal territory in a complex web of jurisdiction and accountability.
The European Courts
Accountability is the main question in this case. With the argument that the EU is not paying for labour but rather for the equipment (which will be used by forced labourers), the European Commission is suggesting that it cannot be held accountable for use of forced labour. However, there is also a problem of jurisdiction within the European Courts. That is because the Eritrea fund is part of the larger 4.7 billion euro European Union Emergency Trust Fund for Africa. This fund is technically separate from the EU budget and takes contributions from individual member states. Furthermore, a lawsuit within the European court has to be filed directly by victims and not via a collective action, as under act 263(4) of the Treaty on the Functioning of the European Union, which states that cases must be of “direct and individual concern”. For practical as well as safety reasons the labourers forced to work on the project in Eritrea cannot do so, and that is why the Diaspora Foundation, as a part of the Eritrean community, has taken the task to represent all Eritreans harmed in this case. Precedence for court action on the national service was set by the Nevsun-case in Canada, where the Supreme Court ruled that a Canadian mining company could in fact be brought to court for abuses inflicted in Eritrea under its watch, even if it did not directly hire the national service labourers – it went via an Eritrea proxy company.
Anticipating the question on jurisdiction, lawyer Emiel Jurjens argues that if the European Courts cannot have jurisdiction, then individual national courts of Member States must have; in this case the Dutch national courts. Jurjens anticipates that the European Commission will argue the Dutch national courts have no jurisdiction, but this would mean a violation to the rights of the Foundation because then there would be “no legal remedy available against actions of the EU” while they are being denied a “right to court,” as per the writ of summons. It is now largely up to the judge which legal route the lawsuit will take. If the EU can successfully argue that no court has jurisdiction, this will raise serious legal and ethical questions, because this would mean there are no checks and balances to multibillion euro projects that raise serious questions on human rights violations.
Eritrean track record
A part of the workforce in the EU funded road project comes from conscripts under Eritrea’s National Service. The National Service has been systematically and consistently condemned as a violation of human rights by a multitude of governments, non-governmental organizations, intergovernmental organizations and newspapers including recently UN Special Rapporteur Daniela Kravetz, Human Rights Watch, U.S. embassy in Eritrea, Amnesty International, European Parliament, and The New York Times. In their inquiry on human rights in Eritrea the United Nation’s Human Rights Council characterized the National Service as a possible “[crime] against humanity”. The reports and articles conclude that the human rights situation in Eritrea has not improved since the 2018 peace deal with Ethiopia, nor that there is any indication of future improvement. UN Special Rapporteur Daniela Kravetz was not allowed to enter the country, nor were her recommendations accepted by Eritrea. Independent monitoring is severely limited for all foreign institutions and non-compliance with the Eritrean regime often ends with those institutions barred from the country. The European Commission’s hope that Eritrea’s political institutions will improve while relying completely on the goodwill of Eritrean officials to monitor human rights in the project therefore is unlawful, argues the lawyer in the case.
The European Commission said in a brief response to Reuters that it would reserve its right to bring its legal and factual arguments before an Amsterdam court if that was applicable. Yemane Ghebremeskel, Eritrea’s information minister, told Reuters that the “accusations [in the lawsuit] emanate from a very small but vocal group, mostly foreigners who have an agenda of ‘regime change’ against Eritrea,” neglecting the content of the case and the well established records of human rights violations by a ‘very large group of vocal actors’ and suggesting that Eritrea is still not willing to address the fundamental political problems that result in the mass incarceration and slavery of its population. Besides the Dutch-led lawsuit, the EU is under close scrutiny from different EU and Member State institutions while a United Kingdom-based lawsuit will follow soon.