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Linking Rights and Foreign Aid for Ethiopia: The Case of HR 2003

JURIST Guest Columnist Abigail Salisbury of the Mekelle University Law Faculty in Mek'ele, Ethiopia, says that although the vast majority of Ethiopians publicly denounce H.R. 2003, the so-called Ethiopia Democracy and Accountability Act now going through Congress that links nonessential US assistance to fulfillment of various human rights obligations, the spirit of the bill is correct...

One of my law school casebooks included a 1960 photo of Bernardus Fourie, former South African Representative to the UN, taken when he was speaking before the Security Council. Here was a man sent to represent his country at a time when it was subject to near-universal criticism for its policy of apartheid. When I looked at the photograph I inspected the individuals on either side of him, trying to gauge their reactions to his remarks. I studied his facial expression and posture, trying to imagine myself in his place. I could not stop asking myself how he must have felt at that very moment captured in the picture, when he was placed in the exceedingly awkward position of publicly representing a country which was under such heavy attack from nearly all sides. Since then, I have had that same question tucked into the back of my mind, and just when I ran across the photo again I was forced to represent America as it was being denounced, causing me to reexamine my beliefs about my own country.

Last month I was invited by my Ethiopian host institution, the Mekelle University Law Faculty, to participate in a panel discussion on H.R. 2003, also known as the Ethiopia Democracy and Accountability Act of 2007. This American bill, passed in October by the US House of Representatives and now before the Senate Foreign Relations Committee, would withdraw nonessential assistance from Ethiopia until its government fulfills various human rights obligations as set forth by Congress.

As the only American on the Law Faculty's staff, I found myself the de facto representative of the United States, held responsible for explaining and justifying the legislation and its policy objectives. The hall was packed, standing room only at the back, but of all the Ethiopian professors and law students in attendance, not one person believed that it might somehow improve their nation's situation. Instead, it was unanimously interpreted as an illegal violation of Ethiopian sovereignty. As I listened to the comments of others, I got the impression that there was a perceived air of imperialism in the document. In other words, although all states are equal, depending on their level of development some are more equal than others.

As an American, I often feel that when it comes to public opinion, we can never win. When we involve ourselves in the affairs of other nations, we are denounced for apparently believing that we have the right to run the whole world, regardless of law or outside approval. If, on the other hand, we elect to stay out of a conflict, then we are portrayed as cold and unfeeling, only caring about the suffering of others when there is money at stake. When abroad I am often told that Americans are dilettantes in the field of humanitarian intervention, only pushing for change when there is something to gain. This perceived hypocrisy has been worsened by some past administrations, who have been accused of complying with and aiding various regimes in order to achieve their own objectives, almost viewing dictators as the expediters permitted under the Foreign Corrupt Practices Act. However, some of these short-sighted decisions have come back to haunt us in recent years, indicating a practical — if not entirely altruistic — need for a change. Probably the most frequently-cited example of these policies' shortcomings is Osama bin Laden, one product of the Cold War-era strategy that the enemy of our enemy was our friend.

Accordingly, H.R. 2003 on its face seems to assert Congress's intent to start fresh. It could potentially be viewed as the legislature's use of its power of the purse to set foreign policy so that America will no longer support tyrannical governments out of expediency. The problem, however, is that Congress is in some ways commandeering the President's post. In the past, some of the legislative powers set forth in the Constitution have been widely interpreted in U.S. domestic courts, perhaps most notably its authority over interstate commerce, which has over the years been stretched to permit regulation of myriad seemingly-unrelated areas. Indeed, from that vantage point H.R. 2003 seems to be yet another attempt to retrofit the Constitution in a manner which appears to offend the principle of the separation of powers.

Even if the domestic court system holds this exercise of authority to be proper, much of the international legal community will remain unsatisfied, believing that the legislation requests Ethiopian subordination in contravention of the so-called "Friendly Charter" of 1970 which mandates:
No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law.
Such language, however, pulls the legal ground out from under any and every type of humanitarian intervention. The document, which has been called the "tyrant's charter" by Geoffrey Robertson, QC, is so open to abuse on its face that one can not reconcile it even with entering a country to provide aid and stop genocide. Clearly, since 1970 there have been many such violations of international law without strict enforcement, indicating a lack of desire to apply its literal language to such foreign interference. Thus, this argument for applying the Friendly Charter in order to invalidate H.R. 2003 internationally is weak.

Some Ethiopians go farther, though, stating that the bill amounts to coercion or intimidation, reaching the level of interference and threats against Ethiopia. While I do not believe that the bill was meant to intimidate, it was clearly intended to persuade the Ethiopian government to change its ways, using economic restrictions as a tool. In American law, such an intent is not automatically invalid, because federal aid often comes with strings attached for the states which accept them, and we have a body of case law as a reference point for determining the acceptability of those strings. In international policy, as well, embargoes and economic sanctions are commonplace, and Congress took care in H.R. 2003 to specify that America would only be withdrawing "nonessential United States assistance" separate from funds used for hunger programs, health care, etc. There is no universal travel or import/export restriction such as the decades-long embargo we have imposed on Cuba, for instance.

Ethiopians bristle at such a comparison because it tends to imply that since the international community tolerates our stance on Cuba, then it should similarly permit the mandates of H.R. 2003. The analogy is false, many Ethiopians feel, because they have neither threatened nor used force against the U.S. In effect, they see America as taking retaliatory measures which would be appropriate in wartime, but without having been attacked. They find similarly unimpressive any comparisons to other instances when America tried its hand at foreign state-building, because although Congress is trying to encourage the institution of democracy in the post-conflict environment of Ethiopia, it is doing so at a distance and with no right. The U.S. is involved in negotiations for the future of Kosovo and is trying to set benchmarks for Iraq, but it has a physical presence and interest in those places because of its prior military efforts, whereas it has no such relationship with Ethiopia.

After listening to the Ethiopians' opinions and putting them into legal terms, I began to wonder whether Congress is attempting to bootstrap the concept of universal jurisdiction in the courts and turn it into a drafting doctrine, permitting it to legislate at a distance should conditions sufficiently shock the conscience. Some Ethiopians do suspect that America is using H.R. 2003 to disguise some other activity or motive, with Mekelle law professors wondering if this is the beginning of the development of another concept of sovereignty altogether. It is true that Congress is really only dictating how American aid money should be spent and thus is not creating binding laws for Ethiopia in the strictest sense, but dangling conditional aid in front of a country this poor does not allow for real domestic decision-making in Addis Ababa. Instead, Ethiopia starts to be governed from Washington, which would be just fine with some people. Several members of the audience at the law faculty's discussion forum made vehement statements to the effect that developing nations do not have the luxury of debating the legality of such legislation, and Ethiopia must just accept America's terms for the good of the nation.

Let us say, however, that Ethiopia or any other country in a similar position refuses to comply with the terms of such legislation. Research suggests that economic sanctions or their functional equivalents imposed in response to human rights violations actually exacerbate existing problems. Robert Pape from the University of Chicago has demonstrated that the true results of such measures include losses for foreign investors and subsequent worsening of the local situation. One can easily envision that when people lose their jobs due to withdrawal of foreign investment, they will have nowhere to turn but to the government, which therefore ends up getting more powerful. The strengthened administration will be able to rally additional support by setting up those who imposed the sanctions as the immoral enemy.

I can certainly understand the view held by some that America has needy groups at home and has no obligation to send money abroad. Thus, it would follow, if America in its benevolence decides to confer aid to foreign governments, then at least we should have the right to make sure the money is not funding cruel regimes. In short, this is the philosophy, "Play by my rules or I'll take my football and go home." In the midst of exasperated attempts to discuss H.R. 2003, I have sometimes wanted to say something to that effect. There is a sense amongst many of the foreign aid workers whom I have met here that Ethiopians have developed a sense of entitlement. It is true that this could just be stressed people complaining about the locals to let off steam. However, during the H.R. 2003 discussion forum there seemed to be a general assumption that Ethiopia is entitled to American aid. Throughout all the exploration of the various legal issues involved, no one ever doubted that the money belongs to the Ethiopian people. When I worked up the courage to mention the issue, I was rather strongly told that America has a moral obligation to provide assistance to Ethiopia.

One very practical and compelling reason for criticizing Congress is that many do not agree with the factual findings used as justification for the actions to be taken. There is more than a little hypocrisy in US legislators putting heavy emphasis on alleged election irregularities in Ethiopia while the last two American presidential elections have raised more than a few eyebrows. Congress also relied heavily on the reports and testimony of just a small group of people in preparing its findings, and in Ethiopia there is some doubt as to the interests of the parties involved in the investigations. The opinion of many of the professors in Mekelle is that the bill is now moot because the human rights issues enumerated have already been successfully resolved. Annoyed, and feeling that Ethiopians are already doing all they can, some ask what more America wants from them and why it hasn't recognized any of the advances made so far.

I was beginning to be won over by this particular argument until I sat down to read and grade the mid-term essays of the students in my International Human Rights Law classes. Because all of the instructors at Ethiopian universities are made to sign a contract that we will never say anything against the government or ruling party, I had been very careful in wording my assignment. I asked the students to select a human rights issue in Ethiopia (making sure not to imply that there are any actual problems, just issues) and find another country dealing with that same situation. They were required to then compare the actions of the two nations, discussing them in light of various international human rights instruments which have been covered in class. Then, they were to propose some potential methods they might use to deal with this "issue" they selected. Thinking that this was a sufficiently non-inflammatory prompt, I assumed I would get some rather dry responses, especially given the comments from the H.R. 2003 discussion forum, which all seemed to assert that Ethiopia is doing just fine on the human rights front.

I was absolutely shocked, then, when I started reading my students' work. Out of the hundred third-year students I teach, probably forty of them had inserted a special section, right after the cover page, warning me of what might happen to them were their paper to leave my hands. A number of students wrote that they would never give their real opinions to an Ethiopian professor because they fear being turned in to the government and punished. Others begged me to take their work back to America with me so that people would know what was going on. Of those who wrote such notes, almost all said that I would probably be surprised to find that many of the students had been afraid to express their true feelings at the H.R. 2003 discussion forum because you never know who is listening.

After my initial shock, I began to wonder if the students weren't just making exaggerated claims in hopes of getting better grades. I kept trying to figure out whether they were writing these warnings because they were genuine or because they wanted to make me think that they were really putting themselves on the line for this assignment. As I read the papers which had been submitted without the notes about fears, however, I got the sense that the students were just writing in as safe a fashion as possible. They put in long recitations of facts and laws and strove to make the "issue" seem as insignificant as possible within the larger context of Ethiopian government. They were holding back. Their work lacked the color, honesty, and intensity of the writing of the students who had asked me not to show their papers to anyone.

To be fair, I can understand how the students might be afraid to speak their minds, because there have been a number of student protests which have been put down with violence recently, some journalists have been imprisoned, and much of the media is censored. At dinner, some university graduates from Addis Ababa mentioned that they had been without food for weeks at a time on campus but were forbidden by the administrators to ever voice a complaint. My friend tried to learn more about the conditions, but the Ethiopians had quickly changed the subject, telling her that they should not be overheard discussing such things. I even know some expatriate workers here who are hesitant to say anything negative about the country in their e-mails to friends and family at home, because they know that everything goes through a central server and could be read, with possible negative repercussions.

I should mention that teaching this human rights class can be a very touchy thing, even though the subject appears to be strongly supported by the university, which is of course overseen by the Ministry of Education in Addis Ababa. While such a subject would be almost a luxury elective or niche seminar in America, it is a part of the Ethiopian core curriculum and the administrators consider it one of the most important topics today, even having established a Human Rights Centre for community advocacy and informative purposes. However, I have heard very little public criticism of the actions taken by the government, even though most people would like the human rights situation to improve.

It turns out that ethnic loyalties — not the alleged satisfaction with the progress being made — have a great deal to do with the reluctance to agree with the policies behind H.R. 2003. The political boundaries of Ethiopia are drawn based on ethnic groupings, with each region having its own unique language and culture. I live in the northern region of Tigrai, which is well-known as the homeland of almost all of today's Ethiopian leaders, including Prime Minister Meles Zenawi, who is portrayed in H.R. 2003 as a human rights abuser. After the Derg military regime was defeated, the new government was formed largely by the political party which grew out of the Tigraian People's Liberation Front, whose enormous office is about three-hundred yards away from the campus of the law faculty. Other groups do not get anything close to the level of governmental representation enjoyed by the citizens of Tigrai, even though it is one of the smallest regions.

People from other regions are much more free with their criticism of the government. I have seen several couples get into screaming fights because the spouse from Tigrai refuses to criticize the government while the spouse from elsewhere rants about corruption, censorship, the military, Eritrean secession, and so on. On a recent trip to the Amhara region, some young men asked me and my friends about our travels in Ethiopia. They were extremely friendly to us until we said that we were not really backpackers, but that we live in Mekelle, at which point one of the men spat on our vehicle and all but one walked off in disgust, yelling that they hate people from Tigrai. Our group was made up entirely of white people and this conversation was being held in English. It goes without saying that we could not possibly be from Tigrai, but so great was their hatred of the Tigraian politicians that the mere fact that we live in Mekelle was enough to taint us. One calmer man stayed to speak to us and told us that in order to be safe and have a better time when we travel, we should tell people, "The Ethiopian government made me work in Mekelle. Of course I never wanted to live in Tigrai."

When discussing foreign travel, I often hear Americans advising each other to say they are Canadian in order to avoid politically-motivated troubles. In the minds of a good portion of the world's people, the U.S. plays the role of the cruel, wasteful and capricious overlord. At the same time, many people look to America when they want things to change. This lose-lose scenario perfectly sums up the problem of H.R. 2003, and a prime illustration occurred at the discussion forum. An irate audience member told me that America has no right to change everything unilaterally and it should have worked for a General Assembly Resolution on Ethiopia instead of making a domestic law. I responded that there is often the perception that the international system provides a high level of legitimacy but a low level of action, such as that taken towards Burma, whose human rights abuses resulted in a toothless Resolution and no real change for its people. The individual then rebutted by recommending — in all seriousness — that the U.S. has the responsibility to revolutionize the UN and install a new system. You just can not have it both ways, wanting America to stay out of the affairs of other nations but still expecting it to come riding in on a white horse to save the day.

Listening to the Ethiopians talk about the bill's various points during the discussion forum, I felt as if I were under attack, but did begin to wonder if America hadn't done something foolish and egotistical by asserting its right to determine the domestic affairs of a foreign nation. After reading my students' work and speaking with people from outside Tigrai, however, I have to think that the spirit of H.R. 2003 is correct. I can admire the desire to help the people in another country and break with our tradition of cooperating with governments which harm their people when it suits American needs. I do see, however, that the factual findings section should have been redrafted because it is out-of-date, and if it is used as the justification for the actions taken in the rest of the bill, then the actions are without sufficient foundation and seem pointless. In recent years, foreign policy decisions have made America less and less popular around the world, but I think Americans are frustrated because we want to be recognized for our good works and intentions. I used to get angry and wonder why our leaders do not seem to understand that what they are doing with foreign affairs is not only hurting our reputation, but is putting the U.S. in danger by providing more already-furious people with ever-better reasons to attack us. It is quite sad when someone cannot leave the U.S. and express pride at being American for fear of retaliation by those who can not separate the national policies from the individual citizens.

From this experience, however, I can better understand why sometimes actions must be taken which will earn us even more hatred. If those who craft our laws and policies ran international affairs like a popularity contest, then America might be more beloved by foreign nations, but it might also be committing terrible injustices against millions of people whose own leaders care little for their safety or happiness. Thus, although at the discussion forum I felt like Bernardus Fourie in that old photograph, a lone representative forced into the position of defending a nation whose actions are indefensible, I now have a different outlook. Instead of being ashamed that our country is disliked for taking unpopular measures, perhaps as Americans we can find pride in that self-same fact, exactly because we do that which we feel must be done to improve lives, despite what others may think of us.

Abigail Salisbury currently teaches at the the Mekelle University Law Faculty in Mek'ele, Ethiopia. She is a 2007 graduate of the University of Pittsburgh School of Law.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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