Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Communication of texts. The Committee has noted the Government’s indication in its report that the new draft Penal Code has not yet been enacted by the National Assembly. The Committee hopes that the Government will supply a copy of the new Penal Code, once it is adopted. It also hopes that the Government will not fail to provide, with its next report, copies of laws and regulations governing the execution of penal sentences, as well as compulsory military service laws.

Articles 1(1) and 2(1) of the Convention. Compulsory national service. Over a number of years, the Committee has been referring to section 3(17) of the Labour Proclamation of Eritrea (No. 118/2001), under which the expression “forced labour” does not include compulsory national service. It noted that, under article 25(3) of the Constitution of Eritrea, citizens must complete their duty in national service. The Committee has also noted the Government’s repeated reference in its reports to a declaration known as “Warsai Yikaallo Campaign”, promulgated by the National Assembly of Eritrea, through which the population has been engaged in considerable programmes, mainly in reforestation, soil and water conservation, as well as reconstruction activities, as part and parcel of food security programmes.

The Committee recalled, referring also to the explanations provided in paragraphs 62–64 of its 2007 General Survey on the eradication of forced labour, that Article 2(2)(d) of the Convention exempts from its provisions “any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population”. This exception, which involves the concept of emergency, applies in restricted circumstances. In order to respect the limits of the exception, the power to call up labour should be confined to genuine cases of emergency, or force majeure, that is, a sudden, unforeseen happening calling for instant countermeasures. Moreover, the duration and extent of compulsory service, as well as the purpose for which it is used, should be limited to what is strictly required by the exigencies of the situation. On the other hand, the exception in Article 2(2)(d) concerning emergencies should not be understood as allowing the exaction of any kind of compulsory service in case of war, fire or earthquake; this exception can be invoked only for work or service that is strictly required to counter an imminent danger to the population.

The Committee takes due note of the Government’s description of the factual situation in the country, which is referred to as a “threat of war situation”. It further notes the Government’s statement that necessary measures are being taken in practice to limit the exaction of compulsory services to genuine cases of emergency and to take into consideration, in case of compulsory labour, the well-being of people, the specific purpose of the work and the duration of the service.

In this regard, the Committee once again refers to the provisions of article 27 of the Constitution of Eritrea, according to which a state of emergency may be declared by the President by a proclamation published in the Official Gazette, which is subject to approval by the National Assembly and remains in force for a period of six months, which may be extended by the National Assembly for a period of three months at a time. In the absence of such a declaration of emergency, which should also have been limited in duration, if adopted, the Committee points out once again that the existing large-scale and systematic practice of imposing compulsory labour on the population within the framework of the national service programme is incompatible both with Conventions Nos 29 and 105, which prohibit the use of forced or compulsory labour as a method of mobilizing and using labour for purposes of economic development. The Committee therefore expresses the firm hope that the necessary measures will be taken, both in law and in practice, so as to limit the exaction of compulsory work or services from the population to genuine cases of emergency, or force majeure, that is, to circumstances endangering the existence or the well-being of the whole or part of the population, and to ensure that the duration and extent of such compulsory work or services, as well as the purpose for which it is used, is limited to what is strictly required by the exigencies of the situation. Pending the adoption of such measures, the Committee requests the Government to continue to provide information on the compulsory national service programme and its application in practice, supplying copies of rules and regulations governing such service.

Freedom of career military personnel and public service employees to leave their service. The Committee notes with regret that the Government’s report contains no information on this issue. The Committee therefore requests the Government once again to indicate any provisions applicable to career military officers and other career members of the armed forces, as regards their right to leave the service, in time of peace, at their own request, either at certain reasonable intervals or by means of notice of reasonable length. Please also provide information on provisions applicable to public service employees as regards their right to leave the service at their own request.

Article 2(2)(a). Compulsory military service. Referring to the above considerations concerning compulsory national service (article 25(3) of the Constitution of Eritrea, section 3(17) of Labour Proclamation No. 118/2001), the Committee has noted the Government’s repeated statement in its reports that the main purpose of compulsory national service is to carry out military service. The Committee recalls once again, that under Article 2(2)(a) of the Convention, compulsory military service is excluded from its scope only if used “for work of a purely military character”. The Committee therefore repeats its requests to the Government to indicate what guarantees are provided to ensure that services exacted under compulsory military service laws are used for purely military ends and to supply copies of the relevant provisions.

Article 2(2)(c). Prison labour. As regards guarantees to ensure that convicted persons are not hired to or placed at the disposal of private individuals, companies or associations, the Committee notes the Government’s renewed statement in its report that such guarantees will be provided by the draft Penal Code of Eritrea. The Committee hopes that the Government will supply a copy of the new Penal Code, once it is adopted. It also requests the Government once again to provide information on the provisions governing the work of convicted persons, supplying copies of relevant texts.

Article 2(2)(e). Minor communal services. The Committee previously noted that, under section 3(17) of the Labour Proclamation, the expression “forced labour” does not include communal services. The Committee has noted that, in its report, the Government refers in this connection to various micro dams, roads and forestation programmes, which have been completed over the past 19 years. The Committee further notes the Government’s indications in its report that minor services in Eritrea are related to maintenance work and performed in the direct interest of the community. Noting also the Government’s statements concerning the small scale of such works and consultations of the members of the community, the Committee requests the Government to describe in detail such communal service programmes, giving concrete examples of the works performed and supplying copies of relevant provisions. Please also indicate specific cases in which the members of the community or their direct representatives have been consulted in regard to the need for communal services.

Article 25. Penal sanctions. In its earlier comments, the Committee noted that, according to section 9 of the Labour Proclamation, an employer who engages in forced labour shall be punishable under the Penal Code. It notes the Government’s statement in its report that the new Penal Code now under elaboration will provide adequate penalties for the violation of the provisions of the Convention. The Committee therefore reiterates its hope that the new Penal Code will be adopted in the near future and that it will contain provisions giving effect to Article 25 of the Convention, which requires that the penalties imposed by law for the illegal exaction of forced or compulsory labour should be really adequate and strictly enforced.