Controversial Ant-Terrorism Proclamation on its final way in Ethiopia

Very recently, the Ethiopian government has put in place very controversial proclamations as laws in the country. Among these proclamations the charities and societies proclamation is the most notable one. The International community and a number of professional associations have heavily criticized the government over this proclamation. Now, the Ethiopian government is on the final preparation for the enactment of a new Ant-Terrorism Proclamation. The draft proclamation has been highly opposed by members of the opposition party in the parliament.    Off course, this is going to be very sensitive and again very contentious.   This article is written to shed some light on issues of controversy regarding terrorism and human rights taking in to account historical and political perspectives and provide some recommendations on the way forward. 

The issue of human rights protection versus anti-terrorism laws is one of the most controversial issues in the contemporary international legal and political environment. Terrorism at the global level has been viewed as threat to democracy, the rule of law, human rights and stability. The terrorist attacks on 11 September 2001 in the U.S. made the issue of terrorism a top political priority for the international community. The need to ensure that the anti-terrorism efforts remains vigilant to the protection of human rights has been the subject of much academic, international and nongovernmental debate. Equally, the impact of terrorism and achievement of human rights has received increasing attention. Human rights law places the dignity of human person at the center of its concerns. Inflicting harm on civilians is clearly a breach of the core values that human rights are designed to uphold. Upholding human rights is not a matter of being soft on terrorism. Countering terrorism it self is a human rights objective. States have a positive obligation to protect people under their jurisdiction against terrorist acts. This requires states to prevent, punish, investigate and address the harm caused by such acts (Assessing Damage, Urging Action, ICJ Report, 2009).  It is clear that there is a close link between terrorism and the enjoyment of human rights and freedoms. Terrorism has an impact on human rights because of its destructive violence, which causes fear and anxiety among the population and the difficulty of countering it. Terrorism incites governments to take measures that to often disregard to a greater degree human rights, there by undermining the very foundations of democratic societies. The most important effect of terrorism on human rights is reflected when governments use the need to combat terrorism as an excuse to incriminate political opponents and civilians.

Since the 1960s, terrorist activities have been at rise worldwide, with a tendency of international complications, which became a common threat to the international community as a whole. It gradually became the common resolution of the international community to suppress terrorism and protect human rights. As the result, 12 global-terrorism conventions that provide states parties with legal framework to cooperate in combating terrorism were adopted (The African Economist, 2005: 9). Namely, convention on the prevention and punishment of crimes against internationally protected persons Including diplomatic agents,  adopted by UN general assembly on December 14, 1973,  international Convention against  the taking of hostages, adopted by UN general assembly on  December 17, 1997  convention on the physical protection of nuclear material, signed at  Vienna on March 3, 1980, convention for the suppression of unlawful acts against the safety  of maritime navigation, singed at Rome on March 10,1988, protocol for the suppression of unlawful acts against the safety of  fixed platforms on the continental shelf, signed at Rome  on March 10, 1988, convention  on the  marking of  plastic explosives for the purpose of detection, signed at Montreal on March 1, 1991, convention for the suppression of Terrorist  Bombings, adopted by UN  General Assembly on December  15,1997, and international Convention for the suppression  of financing of terrorism, adopted by UN General Assembly on December 9, 1999 (Ibid:10).

At the regional level, there is the important OAU Convention on the Prevention and Combating of Terrorism adopted in 1999. The Convention contains a comprehensive definition of what constitutes a terrorist act, but avoids political contentious issues by excluding from the definition struggles waged by peoples for their liberation or self-determination in accordance with international law (Lagwanth and Soltan, 2002).

On September 28, 2001, the UN Security Council adopted Resolution 1373 under chapter VII of the UN charter, calling upon states to implement more effective counter-terrorism measures at the national level and to increase international co-operation in the struggle against terrorism. The resolution created the counter-Terrorism committee (CTL) to monitor actions on this issue and to receive reports form states on measures taken (FIDH, 2005:12). The Security Council has held that under chapter VII of the UN charter, states have the duty to protect persons under their jurisdiction form terrorism and to employ to maximum their legal weapon to repress and prevent terrorist activities. Terrorism, however, must be fought with in the framework of the law and with respect for the principle of proportionality and non-discrimination. There should not be any trade-off between counter-terrorism and the protection of human rights. Counter-terrorism must be lawful with respect to human rights and must be subject to appropriate supervision (Magdalena, et al, 2004:433).

In a session at the level of foreign ministers on January 20, 2003, the UN Security Council agreed on resolution 1456 (2003), which says that terrorism can be only defeated when the principles of the UN charter and international standards of law are observed. More concretely, the resolution states that measures against terrorism must in particular be consistent with human rights under international law (UN documents S/RES/1456, 2003). Several UN bodies special reporters and working groups as well as reputable NGOs have been gathering extensive evidence of abuses of human rights in different parts of the world that have taken place under the pretext of combating terrorism. In 2003 the special reporters, experts and chair persons of working groups of the special procedures of the UN commission on Human Rights expressed the growing threat against human rights and showed their concern at the proliferation of policies, legislations and practices adopted by many countries which affect negatively the enjoyment of virtually all human rights. They affirm that any counter-terrorism measures must be in accordance with international human rights law.

Despite decades of effort, with even a greater focus after September 11, attempt to develop a generally accepted definition of terrorism have failed largely over political issues relating to the definition of terrorism. Part of the problem is that not only is the phenomenon itself difficult to explain, but there is a huge difference among observers who seek to define it.  Basically the key element of contention regarding definition of terrorism revolves around two core issues. The first issue is the question of who is using terrorism, particularly referring to actors' involved or who can be identified as engaging in the exercises of terrorism which can involve state or non state entities or groups and individuals. The second issue revolves around the nature of the acts or what instances of crime or pattern of acts can be qualified as terrorism

Generally, there has been no progress so far on the question of a comprehensive U.N convention against international terrorism. Several attempts in various international forums to define terrorism legally and there by outlaw international terrorism have produced no result. All nations want to outlaw international terrorism, but each has a different idea as to what terrorism is. Those who are said to be terrorists to one nation may be "freedom fighters" to another. Each nation wants to define terrorism in a way that will include those acts, which it considers terrorism. Some nations even want to include in the definition certain potential acts by foreign adversaries, domestic dissidents or dissidents in exile, which may not exactly be considered as terrorism in the strict sense, but that it would be advantageous for the national governments to have labeled them as terrorism and outlawed by international law.

According to the recent International Commission of Juries (ICJ-2009) report, one of the critical issues regarding Ant-Terrorism laws  have been the fact that they have been abused for political reasons or have been extended to apply beyond the original stated purpose of combating terrorism. The Problematic element of such legislations according to the report is that vaguely defined offence, wide discretionary powers to law-enforcement agencies, and a reduction of safeguard.  

Recent experiences in Ethiopia have clearly shown that the government has crackdown opposition activities in some areas of Oromiya and Ogaden regions in the name of fighting terrorism. In this regard, there is a great fear that the new proclamation might also be used as a cover to silence and crackdown the activities of a number of in country and outside opposition parties. Therefore, it is very important for the Ethiopian government which is currently in the process of drafting Ant- Terrorism proclamation to learn a great deal from countries that already have put in place such kind of laws and also to consider the following recent recommendation of the International Commission of Juries published in 2009 with regard to such kind of laws.   The introduction of Ant-terrorism laws should be considered very carefully. Care should be exercised in deciding to introduce any new laws at all. Often changes are needed in the policy arena rather than new legislation, and some times the existing legislation is quite adequate. If new laws are thought necessary, the legislation should be given its proper role in scrutinizing proposals and have in-depth public opinions , rather than being required to rush through a range of discretionary powers in an ill considered manner. The legislation should also avoid vaguely defined offences and should meet international standards. Most importantly, it should have an appropriate safeguarding and oversight mechanism. There should also be a mechanism to review the legislation to ensure that no unintended consequences have arisen.  

For the first time in decades, the U.S. government has decided to explicitly link human rights abuses in Ethiopia to its military aid program. H.R. 1105 prohibits funds for military training or equipment to dictatorial regimes that engage in gross and consistent human rights abuses.

Human Rights and Fairy Tales

For the past several weeks, the noise machine of the dictatorship in Ethiopia has been in overdrive reacting to human rights findings made against it in the February 29, 2009 U.S. State Department Human Rights Report. The official spokesmen of the dictatorship angrily denounced the alleged inaccuracies in that report, carped about its groundless charges of criminal wrongdoing, whined about the hidden agendas of shadowy manipulators of U.S. foreign policy, groused about the fictitious and fanciful claims of human rights abuses and blasted the American government for lying outright to undermine their credibility and portray them as international pariahs. Even the leader of the dictatorship took a jab at the report. With simulated dramatic flair, he described the report as a “fairy tale” (te-ret) and “false propaganda” to his parliament. As usual, he categorically denied the occurrence of any systematic human rights violations, extrajudicial killings, mass detentions without charges and the commission of crimes against humanity by himself, his official minions or security and military forces.

Of course, one man’s fairy tale is another man’s tale of fear. Dr. Merera Gudina, chairman of the Oromo People’s Congress and the United Ethiopian Democratic Forces was quick to disagree, as quoted by the gazette Addis Negger:

I see it as one of the government’s attempts to conceal its human rights abuses. For example, the government claims that ‘there are no secret prisons in Ethiopia,’ but about 15 kilometers away from Ambo, where I have enough information about, there are three unofficial secret prisons: the old Emperor Haile Selassie’s Palace in Ambo, Senkele Police Training Center and Holeta Military Camp. Dedesa, where many thousands had been locked up after the 2005 elections, is not an official prison. We can provide as much evidence as needed. It is well known that people have been jailed in Maekelawi [the notorious high-security torture prison in Ethiopia] from one month to up to several years without court warrants. I do not understand who the government is trying to deceive.

Others offered similar assessments about the dictatorship’s brazen and audacious denials of documented and established facts of notorious human rights abuses. The funny thing about the dictatorship’s spasmodic eruption of belated moral outrage against an imaginary cabal of evil international human rights organizations is that they had been ignoring those “fairy tale” reports impassively and scornfully for well over a decade. In their recent counteroffensives, they even stressed the fact that it is not their policy to dignify the “false and propagandistic fairy tales” of the human rights organizations with a response. But now, out of the blue, the dictatorship is squealing like a stuck pig and flailing every which way to respond to the 2009 U.S. State Department Human Rights Report. Why? What has changed so dramatically to cause the dictatorship to sweat it out?

We Know Why They Are Squealing!

The dictators are squealing because the U.S. has quietly and matter-of-factly cut off assistance for military training and equipment to them. That is right! No more American taxpayer dollars to train human rights abusers and criminals; no more American taxpayer dollars for guns, tanks and Humvees to kill innocent Ethiopians. No military partnership with thugs! Many people will no doubt be surprised by this fact, but the law is explicit and its provisions plain and unmistakable.

On March 11, 2009, President Barack Obama signed H.R. 1125, the “Omnibus Appropriations Act, 2009″ ¹ for the fiscal year ending September 30, 2009. H.R. 1105 (Title IV, International Security Assistance, p. 332, fn. 1) prohibits military assistance and training to rogue regimes that engage in gross human rights violations. The relevant legislative language of H.R. 1125 (see fn. 1 below, p. 332) provides,

“INTERNATIONAL MILITARY EDUCATION AND TRAINING - For necessary expenses to carry out the provisions of section 541 of the Foreign Assistance Act of 1961,… Provided further, That funds made available under this heading for assistance for Haiti, Guatemala, the Democratic Republic of the Congo, Nigeria, Sri Lanka, Nepal, Ethiopia, Bangladesh, Libya, and Angola may only be provided through the regular notification procedures of the Committees on Appropriations and any such notification shall include a detailed description of proposed activities…”

Further, under Title IV of H.R. 1105, “FOREIGN MILITARY FINANCING PROGRAM”, the following prohibition is indicated:

“Provided further, That none of the funds appropriated under this heading may be made available for assistance for Nepal, Sri Lanka, Pakistan, Bangladesh, Philippines, Indonesia, Bosnia and Herzegovina, Haiti, Guatemala, Ethiopia, and the Democratic Republic of the Congo except pursuant to the regular notification procedures of the Committees on Appropriations:

H.R. 1105 also forbids reprogramming of any funds made available in prior appropriations (previous years) to provide assistance to these rogue regimes in the current fiscal year. (See fn. 1, pp. 342, 344):

REPROGRAMMING NOTIFICATION REQUIREMENTS SEC. 7015. (f) None of the funds appropriated under titles III through VI of this Act shall be obligated or expended for assistance for Serbia, Sudan, Zimbabwe, Pakistan, Dominican Republic, Cuba, Iran, Haiti, Libya, Ethiopia, Nepal, Mexico, or Cambodia and countries listed in section 7045(f)(4) of this Act except as provided through the regular notification procedures of the Committees on Appropriations.

H.R. 1105 allows training assistance to non-military personnel “who are not members of a government [and] whose participation would contribute to improved civil-military relations, civilian control of the military, or respect for human rights…”

The foregoing change in U.S. military assistance policy in Ethiopia is an extraordinary transformation in U.S. foreign policy. For the first time in decades, the U.S. government has decided to explicitly link human rights abuses in Ethiopia to its military aid program. Congress, by requiring extraordinary presidential reporting “through the regular notification procedures of the Committees on Appropriations” has expressly denied military assistance to the dictators and limited the discretion of the U.S. President to furnish such assistance under the authority of section 541 of the Foreign Assistance Act of 1961.

In plain language, H.R. 1105 cuts off military assistance to the identified rogue regimes, but allows the President to waive the prohibition on a case by case basis in the national interest, provided that he notifies the Appropriations Committees of the House and the Senate (committees responsible for funding the U.S. government) 15 days in advance of his intention to do so, and supplies a “detailed description of proposed activities” justifying the waiver. Even in emergency cases, the President must notify the Appropriations Committees that he has provided military assistance to the rogue regimes “no later than 3 days after taking the action to which such notification requirement was applicable.” In short, H.R. 1105 prohibits funds for military training or equipment to dictatorial regimes that engage in gross and consistent human rights abuses. That is why the dictators in Ethiopia were squealing like a stuck pig over the past few weeks!

Sea Change in American Foreign Policy in Ethiopia

In his inauguration speech, President Obama sent a clear message to the tin pot dictators of the world:

To those who cling to power through corruption and deceit and the silencing of dissent, know that you are on the wrong side of history, but that we will extend a hand if you are willing to unclench your fist. To the people of poor nations, we pledge to work alongside you to make your farms flourish and let clean waters flow; to nourish starved bodies and feed hungry minds.”

By denying funds for military training and equipment, the President and the new Congress are standing tall with the “starving people of the poor nations” of the world and against the filthy-rich kleptocratic dictators who oppress them and “cling to power through corruption and deceit and the silencing of dissent.” The message from the Obama administration to the dictators in Ethiopia is crystal clear: “America will not give you a penny to train your soldiers to terrorize your civilian population, nor will it provide your military establishments a single gun, plane, tank or Humvee to kill them.” George Bush’s unholy “alliance with atrocity” is over. No more unconditional and blind support to dictators who abuse and mistreat their people in the name of “promoting U.S. interests.” Bush’s war on terror under Obama will be transformed into a struggle for global peace under the rule of law and respect for human rights.

Admittedly, U.S. military assistance to the dictatorship in Ethiopia has not been very large, although the dictatorship has received the lion’s share of such aid in the past. What is important about the termination of military assistance in H.R. 1105 is not the dollar amount but rather the implicit moral and political condemnation of the dictatorship for its use of American military aid to violate the human rights of innocent Ethiopians and oppress the population. This simple and straightforward legislative action by the Appropriations Committees represents a sea change, a re-direction, of U.S. foreign policy. It is the first shot across the bow warning all tin pot dictators that the U.S. will no longer form or maintain partnerships with thugs and criminals.

The Obama administration obviously understands that future U.S. military operations with rogue regimes could be adversely affected by such a policy, particularly in terms of potential anti-terror or peacekeeping missions. But the Congress and President Obama are making it clear that they are no longer willing to sustain the culture of impunity of these regimes or subordinate fundamental human rights to political expediency by providing dictators with military training and equipment which will inevitably be used to crackdown on internal opposition and wage war against neighboring countries.

The Moral Challenge in Obama’s Foreign Policy

Last week, President Obama gave a stirring speech on the future direction of U.S. foreign policy and how he plans to keep America safe from its sworn enemies:

… I believe with every fiber of my being that in the long run we also cannot keep this country safe unless we enlist the power of our most fundamental values. The documents that we hold in this very hall - the Declaration of Independence, the Constitution, the Bill of Rights - are not simply words written into aging parchment. They are the foundation of liberty and justice in this country, and a light that shines for all who seek freedom, fairness, equality and dignity in the world.

In that speech, the President raised American foreign policy from the murky morass of Bush’s cowboy unilateralism to the sublime heights of moral clarity grounded in America’s founding principles and values. The President stressed the urgency of restoring a moral perspective in the debates over the challenges of American foreign policy, and the need to return to fundamental American principles and values for guidance. President Obama has witnessed the enormous damage inflicted upon America’s role in the world, and the corruption of American values and principles under the Bush-Cheney administration. The contrived war in Iraq, the unspeakable abuses at Abu Ghraib prison and the albatross hanging around America’s neck, the grotesque detention facility in Guantanamo Bay, Cuba, are merely examples of the moral decay America had to endure over the past eight years. That is why the President had to emphatically declare to the world that he believes “with every fiber of his being” in the “rule of law, liberty, justice, equality fairness and the dignity of the individual”. No more of a foreign policy based on a twisted philosophy of the “end justifies the means”.

We anticipate the hollow and deceitful sovereignty arguments raised so often by the dictators in Ethiopia. They say, “no one can tell them how to run their ‘country’ by giving or denying them aid.” But they need to understand that linking military aid, or for that matter economic aid, to explicit human rights criteria is not to violate anyone’s sovereignty. Sovereign American law (Leahy Amendment) requires denial of military aid to any regime whose military units engage in gross abuses of human rights. By denying military aid, the U.S. is merely dissociating itself from the crimes, corruption and atrocities of the dictators in Ethiopia. The U.S. no longer wants to support and foster their culture of impunity that tolerates the burning of villages in the Ogaden to accomplish the ends of “counter-terrorism”, or the massacre of innocent protesters in the streets to help them “cling to power”. Most importantly, the termination of military assistance to rogue regimes is essentially about America itself and its role in the world. Tin pot dictators have the choice of “clinging to power through corruption and deceit and the silencing of dissent”; and America has the choice of clinging fiercely and tenaciously to its fundamental principles and values of “liberty, justice, freedom, fairness, equality and dignity in the world.” H.R. 1105 makes that choice for America.

Writing on the Wall: Endgame!

It is reasonable to suppose that the dictators in Ethiopia see the relevant provisions of H.R.1105 as the proverbial writing on the wall, the beginning of the endgame. They never thought in their wildest imaginations that Barack Obama would be elected President. They thought they had it sewed up by donating millions to a certain foundation. They thought they could throw around their millions on K Street lobbyists and stonewall any change in American foreign policy towards them. They thought they were invincible because they could wine and dine witless American politicians to do their dirty deeds. They thought Bush’s “war on terror” will go on forever. They thought they could exploit to their advantage America’s global dilemma over national security and the protection of human rights. They thought American power came from the shrapnel of its bombs, the deadly accuracy of its missiles and the formidable capabilities of its armed forces. But they could never imagine or understand that America’s awesome power lies in the principles and values declared to a “candid world” over two centuries ago in the Declaration of Independence, the U.S. Constitution and the Bill of Rights. It is impossible for them to even begin to understand what President Obama means when he says he believes “with every fiber of his being” in the “power of our most fundamental values”. But it is with the aid of these values and principles that President Obama shall seek to restore America’s leadership in the world, and win the hearts and minds of friends and foes alike.

The dictators in Ethiopia have a big problem on their hands. They don’t know what to do with President Obama. They are confused. Most likely, they feel vulnerable and unsure of what will happen next. So, they will try to entice him to support them by re-deploying troops to Somalia to prove once more that the U.S. needs them to fight against al-Shabaab, al-Qaeda and whoever else is hiding behind a rock there. They will try to scare him by threatening to dump America and go to China for their military needs. They will try to sweet-talk him into believing that they will be nice and take steps to be more democratic and stop violating human rights. They will pile lies upon lies in a desperate attempt not to lose American material and moral support.

But all of that will be in vain. President Obama is not George Bush. He can not be schmoozed by silly talk of the birth pangs of a “nascent democracy” and that sort of hogwash. President Obama knows African politics and history well; and he has spoken eloquently of Africa’s tragic predicament: Dictators that “cling to power through corruption and deceit and the silencing of dissent,” human rights abuses, the absence of the rule of law, corruption and repression. One can not overcome these problems by having more guns and tanks or by training soldiers to use them skillfully against innocent citizens. That is why President Obama reached out to all tin pot dictators and promised “that we will extend a hand if [they] are willing to unclench [their] fist”, and offered “to the people of poor nations [that] we pledge to work alongside you to make your farms flourish and let clean waters flow; to nourish starved bodies and feed hungry minds.” America will not give military aid to dictators to kill and oppress their people; but if the dictators “unclench their fists”, it will gladly help them build institutions and civil society organizations committed to deepening democracy, accountability and human rights, and establish “the vital trust between a people and their government.”

Let there be no mistake: President Obama is not naïve. He knows the terrorists and tin pot dictators of the world will not be influenced by pleas for observance of the rule of law, or moral appeals to do what is right. He knows there is no magic formula to transform dictators into democrats. That does not happen even in fairy tales, though it has been said that once in fairyland a frog was transformed into a prince. But there is no fairyland that exists in the imagination where it is possible to change thugs into statesmen. For in the end, U.S. foreign policy under the Obama administration will not be about what is wrong with self-delusional tin pot dictators that “cling to power through corruption and deceit and the silencing of dissent.” Rather, it will be about using America’s democratic values and principles to win the hearts and minds of a hostile and skeptical world that has witnessed a great nation degenerate to its lowest level over the past eight years. It will be about how America can get it right, after getting it wrong for so long, in a world that looks anxiously for its moral leadership. It will be a long and hard road ahead, but ultimately America will regain its moral leadership and credibility among the poor people of the world with President Obama at the helm.

America is lucky to have a President who has a moral vision for his nation, openly celebrates “with every fiber of his being” the values and principles upon which his nation is founded, and proudly and cheerfully toils day and night to serve the American people. America is truly blessed to have a leader who knows right from wrong, and swiftly disinherits those “on the wrong side of history”!

¹ http://frwebgate.access.gpo.gov/

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The writer, Alemayehu G. Mariam, is a professor of political science at California State University, San Bernardino, and an attorney based in Los Angeles. He can be reached at almariam@gmail.com