Few Eritrean immigrants in different states in the United States are working on something new. Incensed by the government of their home country’s flagrant violation of even the very basic and universal principles of justice, such as the right to fair trial captured by the old Latin maxim audi alteram partem (hear the other side) these young Eritreans have decided to give a day in court to the thousands of prisoners in Eritrea represented by the 11 members of the transitional National Assembly. The 11 parliamentarians are detained in September 2001 along with many journalists and many others. The detainees have disappeared since then.

Even though Afwerki’s government has continued showing utter defiance to the sacrosanct principles of justice, the team is preparing filmed mock trials on the assumption that the defiant government is finally forced to bring the detainees to trial as a result of both internal and external pressure. To the team, therefore, the Eritrean public has demanded justice for the people behind bars and the Eritrean judiciary has assertively taken the challenge.

The mock trials will be conducted on the assumption that the High Court in Asmara has constituted a special one judge bench exclusively dedicated to the trials of the 11 parliamentarians. So there will be a judge assisted by a senior clerk, two lawyers for the detainees assisted by two noted human rights organizations who are registered as amicus curiae, representatives of the media and human rights groups. The competent court has restricted the hearings to a few audience but with an instruction that the trials will be filmed and aired to the public at a later stage.

I have briefly interviewed Simon M Weldehaimanot on the phone, a close friend of EMDHR and a member of CDRiE and one of the participants and organizers now based in New York.

Yoel: Okay Simon, it seems you’ve an impressive little project. Why mock trials, why preparing a film … what are the aims?

Simon: The team wants to convey a message and the art through the multimedia is one of the best ways of delivering a message. I’m sure people would love to watch a youtube video than to read a 60 pages long article, however well written the latter is.

The project has four aims. First the film will be used to keep alive the causes of the parliamentarians. The film is intended to serve as an advocacy tool. Given the fact that thousands of Eritreans are languishing in prison without having a day in court, the case of the 11 top officials is selected because of its high profile which could attract substantial Eritreans. In addition, the film which will be simple and non-technical will be used to enlighten the Eritrean public on the many and fundamental rights at stake in a criminal justice process – an area of law which has been severely devastated. In this way the film intends to educate ordinary Eritreans to know their fundamental rights in the criminal justice system. In addition, the film also targets the Eritrean judiciary which is weak in all measurements. Not only will the film try to convey a message to the judiciary to assert itself, the film will also introduce advanced litigation system not only by introducing audiovisual recording but also by making reference to international human rights jurisprudence. Moreover,  the film  intends to raise  certain critical issues  for public debate: death penalty, the fate of the Eritrean Constitution (1997), the supremacy of international law vis-à-vis national law … etc.

Yoel: But, Simon, I assume you’ve been following the Eritrean President’s recent interviews. In one of them he bluntly said that his government doesn’t take people to court but it has its own ways of handling cases. So, how’ve you set the environment for the trials?

Simon: This is an important question we’ve been considering and I think we’ve engineered a plot intended to set the setting, as you said. The team is preparing the film on the assumption that the defiant government is finally forced to bring the detainees to trial as a result of both internal and external pressure. To the team, therefore, the Eritrean public has demanded justice for the people behind bars and the Eritrean judiciary has assertively taken the challenge. But, we also have to cater for other issues such as the Special Court of the government – will the case be tried by this court?

Yoel: The mock trails are not open to the public, are they? Why?

Simon: In principle they are open. But if you’ve a courtroom which could accommodate 50 and you’ve 50,000 interested in coming in, you are forced to regulate access. If the government had allowed the detainees a day in court in a free setting, thousands of Eritreans would have come to the courtroom to follow the trials. Remember, the government has been accusing the detainees for treason and coup and the public would be really excited to see with what the state has to back its charges. Plus, there would be a prospect of seeing those who have disappeared for 8 years. This is what would have happened and in that circumstance any court would limit access to some media people and the human rights group. But, if you instruct for the filming and airing of the trials, you are more open than opening the doors of your courtroom.

With us, I mean with the team, it is difficult to get many Eritreans to fill the courtroom, particularly in Phoenix. So the approach serves both realities. It is a trick.

Yoel: Is what you have a documentary, a future film, an action film … what do you have?

Simon: Well, not an action film, of course. But, none of us, I mean in the team, is a film maker. So we might be having a strange chemistry – a combination of both if you like. It is documentary in a sense that we are talking about a real case of 11 disappeared parliamentarians. We know what their case is all about. Yet, we also did extensive research to prepare the manuscript – to make it as factual as possible. The law the court will be applying, of course, is the law of the land including relevant human rights treaties Eritrea has ratified. The submissions of the state are composed from the different arguments, at time embarrassingly contradictory, as a high official of the government did even before quasi-judicial international bodies.

The film is also a future one in a sense that we are introducing advanced litigation in many ways. We’ll have an assertive and a well-informed judiciary – something I could only hope in future Eritrea: the second republic. Both the parties and the judge will be citing international human rights jurisprudence. Cases of the European Court of Human Rights, the UN Human Rights Committee, the African Commission on Human and Peoples’ Rights, the South African Constitutional Court … etc. This is unthinkable with the present Eritrean judiciary. None of us, in the team, is a trial lawyer properly so called. Yet, what we have is too advanced for the present Eritrean judges. This is not to say that they aren’t well-educated judges. There are! The problem is the judiciary has been weak historically and there has been no political will to upgrade it. In fact, the judiciary was deliberately crippled and rendered impotent. It is a judiciary that cannot uphold the rule of law and due process of law, as the African Commission has recently ruled.

Yoel: It is simple to argue on behalf of the detainees. Haven’t several of their rights been violated? My question is, what will the state say and more importantly how will you represent the state in terms of its submissions?

Simon: The government has been making its arguments since September 2001, in fact even before that time. There has been a very nasty media campaign against the detainees. There have been embarrassing contradictions with the government and many of the allegations show how uncivilized, how unbecoming to this age the government is. When asked why the detainees are not tried, at times the answer the government gave is that the judiciary is overloaded, that the judiciary is weak, that investigation requires more time. All these are white lies but they make little sense to those who aren’t familiar with the reality in Eritrea. At other times what was said is exactly what the president said few days ago: ‘we don’t take people to court, we have our own way of handling them’ – as if embedded deep into Eritrea’s customary laws you don’t find zereba klte keysemaeka aytfred. So we researched for the submissions of the government particularly the ones the government gave before international tribunals. At all times the government has been arguing with no evidence and it will certainly face the peril of doing so in our courtroom.

Yoel: It seems that your courtroom will find the detainees not guilty. What then? These people have been detained for 8 years. Don’t they have anything against the state? It should be possible to have something against the state at least in the film world.

Simon: Well, the way the 11 parliamentarians, the journalists and many other Eritreans languishing in prison are treated is a crime against humanity. You can look at the Rome Statute. But, it is too unrealistic to confront top officials for these crimes before a court in Asmara. Thus, even though this is a layperson’s opinion, even the film world has to be realistic to a certain degree. So, we are going a little bit soft and polite. But, as you rightly said, we also have something. This will be a human rights litigation. So the detainees will in return sue the state for violation of several of their rights and ask for various remedial measures. This will be a civil action, a sort of tort if you like. With human rights litigation wherein the state is a defendant, the case is more of tort than a crime, the state being the human rights violator. We’ll use this phase of the trials to show the several rights the 11 detainees, in fact all Eritrean detainees have been denied.  In fact, the civil action is the longest part of the trials. We’ll try to show the various and numerous rights making the bigger right to a fair trial.

Yoel: You were at the ICC as a clerk. What where you doing there and are you influenced by the trials there in organizing the moot court?

Simon: I was interning as a clerk and also as a researcher. It was a high time to be there when the trials kicked off and an arrest warrant issued to the current Sudanese President. I was following trials and summarizing oral decisions of each day. You know, this a new court and almost every word the judges say is a decision. So, for quick building of jurisprudence, we were scanning the daily deliberations and noting out oral decisions which we thought are important piece of jurisprudence. There was also a lot of technical stuff. Remember, this is an e-court and it doesn’t deal with papers. But our moot court is not influenced by what I saw at the ICC. In fact, we started the work few months before I went there. Yet, the judge leading the chamber I was attending, virtually often, is very experienced British judge whom everyone would want to hear arguing and handling the case. This will have an effect – British legal tradition impresses me.

Yoel: Oh! Does this mean you are the judge? By the way, who is who in the trials? What is your role?

Simon: Oh! No! I’ve picked the easiest task. ‘All rise, judge X sitting’ stuff. Of course it’ll be in Tigrinya. There is a hesitation with team members. Nobody seems to pick the biggest part of the manuscript – people has less time to master it. We’ve very articulate youths such Daniel Tewelde and cool former judges such as Yonas from California. Seriously though, I shall not tell you this at this moment. ‘No answer, Mr Yoel!’ I like this ‘no answer’ escape.

Yoel: How about the camera crew? Who are they?

Simon: A bunch of good friends who unfortunately have good cameras and some skills. The consolation is that shooting the manuscript doesn’t need much maneuvering. All are volunteers to whom the team is indebted. But, they are team members any way so the work is their baby too. Other friends are also developing separate clips. So you might find a small part being done now in your office. You better check; you might be in, already.

Yoel: Why filming the trials?

Simon: Because we want to reach people on youtube and on facebook. Everyone is on facebook, me and you included. How much time do you spend on facebook? A message has to be packaged in a consumable cover and handy delivery system. Haven’t you taken VoMD to the land of facebook? By the way, I need one of the t-shirts you have, free of charge. This is an era of multi-media.

Yoel: Why did you place your High Court in Phoenix, Arizona? Why not in DC or New York so that you could fill the courtroom?

Simon: Actually the court is in Asmara. But, terrific question anyway! In fact, the weather is now terribly hot in Phoenix. This is the time to leave Phoenix. But, there are good people there; too good that we never thought of any other place. Of course, the team is getting free accommodation for the filming week thanks to Mr. and Mrs. Dave and Libby Walker – both friends of Aster. Court facility, the camera crew … etc. There, there are friends of Aster and of course one team member. On a second thought, it would have been very interesting to arrange the filming in DC as a side event to the EGS/EDA June 19 and 20 events. But, our days were fixed quite in advance and commitments have been made that reversing course is now undesirable if not impossible.  

Yoel: Why did you pick the case of the G-11 and not of the journalists?

Simon: I knew this question was coming? A friend from the CPJ in New York asked me this question several times. But, we thought about the case of the journalists and many other Eritreans too. The case of the 11 top officials is more visible and the visibility and sensitivity helps to convey a message to a bigger audience. But the moot courts are about every one behind bars beyond the reach of due process of law. The moot courts are about due process of law.

Yoel: Where is the money for this project coming?

Simon: From the CIA (laughter) as PIA would religiously say. Well, we went ahead of preparing the manuscript without looking for funds. When we progressed with the manuscript, we said we can conduct this project with our own resources even though it is a fundable project. So in the meantime, two organizations approached us. There was a half prepared project proposal so we gave them saying that the more money we invest on this little project the better it becomes. Both organizations disappeared without offering anything. So, up to now everything is from our pockets. A couple of friends in Phoenix donated air tickets and everyone in the team is covering plane ticket and on top of that we are putting some money to the project. People such as Daniel Tewelde has contributed significantly. There’ll be an acknowledgment and a financial statement at the end. Are you offering anything, Yoel?

Yoel: May be! Okay, you produce the film then what?

Simon: We contend for some kind of fancy movie award (laughter). In line to the aims of the project, what we eventually produce should be thrown to the public soon. We may have few fund-raising tricks but nothing more. But, hey, and I have to put this in block letters, NO ONE SHOULD EXPECT ANY PROFESSIONAL STUFF. With no budget and none in the team being a professional in filming, acting … what you should expect is a homemade clip.

Yoel: Good luck Simon. Get me my CD after you come back. Thanks for the interview.

Simon: ‘You buy one you get one free,’ Yoel! Thanks for having me and my greetings to the team there.