It is still only early days of the new administration, but President Trump has already advanced policies that violate international law and threaten to disrupt longstanding alliances with partners that the U.S. relies on to counter terrorist threats (see analysis of here, here, and here). The impact of these policies on the African continent has so far largely been neglected, including an analysis of what incentives they have, if any, in working with an administration that puts “America first” above all else. Importantly, when weighing whether to cooperate with the Trump administration, African countries will have to contend with their own human rights obligations under international law.
Much has already been written about the international legal considerations foreign allies must make take into account in supporting a Trump presidency. For one, Brian Chang’s excellent post on Just Security last month analyzed how the European Convention on Human Rights limits the ability of the Trump administration to obtain the cooperation of European partners in its counterterrorism operations. However, it is not just in Europe that complicity with potential Trump-led human rights violations may have its costs. The African regional human rights system is developing an increasingly robust framework partly in response to rising threats on the continent (i.e. Boko Haram, ISIL, Al-Shabab), but also as a reaction to African states’ participation in post-9/11 abuses, which obligates African states to refrain from taking measures that deviate from the international conventions and instruments to which they are bound. Whether it’s through the provision of bases for future drone operations or cooperation in rendition and detention, there is now urgency for African states to ensure their counterterrorism cooperation with foreign states like the United States, does not violate human rights norms or further undermine security and stability within their borders.
While accountability for African states complicity in the CIA-led secret detention and rendition program have been limited thus far to selected national judicial institutions, there has been a growing corpus of law and jurisprudence on counterterrorism and human rights on the continent, including binding African Union treaties and guidance from the African human rights system. There are now very clear and binding standards that constrain African states from cooperating with the United States in ways that would result in derogations of their own obligations under international human rights, humanitarian, or refugee law.
Trump on Africa
Since Trump’s electoral victory, little information has been provided about his administration’s future policy towards Africa. However calls on Monday morning with President Muhammadu Buhari of Nigeria and Jacob Zuma of South Africa provide some insight on his administration’s engagement with African leaders. Though the White House has yet to provide immediate details on the substance of the calls, President Buhari’s spokesman released a statement, which stated that Trump was ready to “cut a new deal in helping Nigeria in terms of military equipment to combat terrorism.” Trump’s offer of military assistance to Buhari signals a shift from the Obama administration’s previous position which had refused to sell weapons to the country due to damning reports of human rights abuses committed by Nigeria’s military. In July 2015, President Buhari appealed to the Obama administration to relax the administration’s application of the Leahy Law, which prohibits the U.S. Department of State and the Department of Defense from providing military assistance to foreign military units that the U.S. government credibly believes to have committed gross human rights violations. Though Obama was poised to relax his position and sell 12 light attack aircrafts to Nigeria in the last few months of his presidency, the promise of any military assistance not only contravenes existing U.S. law, but risks U.S. complicity in human rights abuses. Should Trump move forward in his promise of cooperation, Congress should give increased scrutiny to the sale of weapons to units accused of carrying out violations of international human rights law.
Further clues of the Trump’s policies towards the continent may be gleaned from a series of questions his transition team posed to officials within the State Department in the week before the inauguration. The questions are replete with stereotypical views of African leaders as inherently corrupt, and indicate skepticism of the overall efficacy of U.S. development and aid programs in Africa. Importantly, while the U.S. government has in the past played an influential role in supporting counterterrorism operations by African governments, the Trump team cast doubt on the United States’ policy in Africa by asking simplistically: “We’ve been fighting Al-Shabab for a decade, why haven’t we won?”
These questions, and the Trump administration’s “Muslim ban,” which targets three African states, has already prompted a backlash from some leaders and analysts from the continent who have suggested that the order heralds “turbulent times” and could “complicate U.S. security cooperation in the region and prove a “big boon” for al-Shabaab recruiting efforts.”
While there is the belief be it valid or not, that African states and its institutions are weak, there are strong drivers at the national and regional level on the continent that serve as a potential constraint on the U.S. actions. Importantly, they also represent an advantageous space within which advocates and civil society groups can work to mitigate harmful counterterrorism policies, and hold African states that may be implicated in U.S. abuses to account.
African States’ Human Rights Obligations
In recent years, African regional and national human rights mechanisms have developed important rights-based instruments that interpret the existing legal obligations of African states, and promote human rights and the rule of law. The legal foundation for human rights protection in Africa is the African Charter on Human and Peoples’ Rights (“African Charter”). Rights guaranteed by the African Charter that may be implicated in the context of African states counterterrorism cooperation include: respect for the right to life, the right to liberty and security, the right to humane treatment, the right to asylum, and the prohibition of torture and non-refoulement — the rule that no state shall return or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture, persecution, ill-treatment, and arbitrary detention.
These legal guarantees are supplemented in the area of counterterrorism by the Organization of African Unity’s (“OAU”) 1999 Convention on the Prevention and Combating of Terrorism and its 2004 Additional Protocol (“Additional Protocol”) to enhance coordination and harmonization of counterterrorism activities in Africa. The Additional Protocol importantly obligates states to respect and protect human rights obligations in all counterterrorism operations, including prohibiting the discriminatory and cruel, inhuman, and degrading treatment of terrorist suspects.
Binding AU resolutions, such as the 2005 Resolution 88 on the Protection of Human Rights and the Rule of Law in the Fight against Terrorism, further affirms that “African States should ensure that the measures taken to combat terrorism fully comply with their obligations under the African Charter on Human and Peoples’ Rights and other international human rights treaties, including the right to life, the prohibition of arbitrary arrests and detention, the right to a fair hearing, the prohibition of torture and other cruel, inhuman and degrading penalties and treatment and the right to seek asylum.”
In 2015, the African Commission on Human and Peoples Rights (“ACHPR”) the organization charged with interpreting the African Charter and ensuring the protection and promotion of human rights on the continent adopted a General Comment on the right to life (“General Comment”). Of particular relevance to counterterrorism operations, the General Comment recognizes the obligations of States to respect the right to life in the context of detention during hostilities, and recognized that States must “prevent arbitrary deprivations of life caused by [their] own agents and protect individuals and groups from such deprivations at the hands of others.”
Another tool that expands on the existing prohibitions on African states from possibly cooperating with Trump in counterterrorism efforts, is the Principles and Guidelines on Human Rights While Countering Terrorism in Africa (“Principles and Guidelines”) developed by the ACHPR in 2016. The Commission explicitly states that the Principles and Guidelines are “based on African regional treaty law; the case law, standards, and resolutions of this Commission; and international human rights treaty law and U.N. Security Council resolutions.” By drawing on law, norms and decisions including those outside the African system, the Principles and Guidelines explicitly define the human rights obligations of African states in the context of counterterrorism operations including in the use of force, transfers, detention, and international cooperation.
Of particular relevance in considering cooperation with the United States is Part 7, which specifically states that:
“States shall withhold cooperation that would result in violations of international human rights, humanitarian, or refugee law [. . . ] States shall ensure that foreign states do not carry out internationally wrongful acts on their territory or under their jurisdiction, including but not limited to unlawful killings, torture, sexual violence, child recruitment, disappearances and other forms of arbitrary detention. States shall take all practical steps to determine whether foreign entity activities on, and movements through, their territory involve such practices. In addition, States shall not assist or support another State in the commission of an internationally wrongful act.
African states should strongly adhere to the framework laid out in the Principles and Guidelines when considering whether to cooperate with the Trump administration in any counterterrorism or security operations. This is not only because of their authoritative provenance, but they also articulate standards that may persuade judges in national and regional courts to consider claims brought by victims of U.S. counterterrorism abuses and supported by African States, or vice versa. Part 7 also requires African governments to act with due diligence by requiring that “practical steps” be taken to determine any wrongdoing by other States on their territory. It reinforces African states’ obligation to investigate the internationally wrongful acts of foreign states on their territory, and ensure that they do not support actions which violate international law and standards.
African States will need to assess their cooperation with the United States in light of their obligations under the African Charter, the Additional Protocol, the Principles and Guidelines, and the General Comment. Any cooperation—by means of counterterrorism raids, rendition, or the use of African bases for U.S. drone operations—should be in full compliance with human rights. If African States feel they can carry out such assistance without scrutiny, they should be wary: The Principles and Guidelines also specifically permit civil society to address the African Commission when African states fail to adhere to their obligations.
Jurisprudence from the African regional and national mechanisms
These constraints on cooperation in any U.S.-led human rights-violating operations are further supported by cases that are progressing in regional mechanisms and national courts in Africa. In 2013, the African Commission on Human and Peoples’ rights considered the case of Mohammed Al-Asad v. Djibouti, which challenged the role of U.S. partner states like Djibouti in supporting and implementing the CIA’s extraordinary rendition and secret detention program. Though the case was initially ruled inadmissible, new evidence revealed in the Senate Select Committee on Intelligence report on CIA torture led the ACHPR to review its decision and hear the case on the basis of the new evidence.
Encouragingly, despite a lack of accountability in many jurisdictions, some national judicial institutions in African countries have demonstrated a willingness to protect the rights of the accused and hold government officials to account, including in cases where African states cooperated with U.S. officials to carry out human rights abuses. In Salim Awadh Salim, et.al v. Commissioner of Police et.al, the High Court of Kenya found Kenyan authorities violated several of Kenya’s human rights obligations for the unlawful detention, ill-treatment, and rendition of 11 individuals of Somali descent suspected of terrorist activities, and made an award of monetary compensation to each of the petitioners. While the question of the detainees’ treatment by U.S. agents was not specifically addressed, the ruling is remarkable in finding that the Kenyan government, through participating in the U.S. program of secret detention and extraordinary rendition, violated a number of human rights provisions and national laws all in the name of national security.
In Khalfan Khamis Mohamed et al. v. the President of South Africa and six others, the Constitutional Court of South Africa ruled that the petitioner’s arrest, detention, and handing over by the South African authorities to FBI agents, after which he was extradited, violated various provisions of South Africa’s national laws, including the right to life, to dignity, and the right not to be subjected to cruel, inhuman or degrading treatment.
As recently as February 9, 2017, the Kenyan High Court blocked a government order to close a refugee camp bordering Somalia. The Court said that the government order was unconstitutional, discriminatory in nature, and would violate Kenya’s international legal obligations not to return refugees to places where they face persecution.
Though the cases before African courts and regional human rights commissions examine a small piece of the puzzle, they do contribute to an emerging jurisprudence and clarity on legal obligations that constrain African governments’ actions when seeking to cooperate with a state that is violating human rights.
How will African states respond?
Aside from the legal consequences of being complicit in the potential human rights abuses of a Trump administration, African states should think carefully of how to engage with the new administration. African states should rightly be concerned that cooperation with a government hostile to African interests may further alienate local populations and do little to curb future terrorist threats on the continent. The prospect of engaging allies to support broader detention operations in Guantanamo, including the possible revival of overseas CIA black site prisons and detention centers across the Horn of Africa, highlights the importance of the existing African human rights framework as a constraint on the ability of the Trump administration to garner support for human rights violating policies in the continent.
Though there may be concerns that the U.S. government could use development aid and military and security assistance to influence African states to support potentially unlawful counterterrorism operations, African states have other geopolitical interests and allies (such as China) and other international and civil society pressures that may force them to reject U.S. demands to cooperate in abuses.
By engaging in acts of torture and other abuses, the U.S. government under a Bush administration violated domestic and international law, undermined counterterrorism efforts, and diminished its moral standing and reputation. The curtailment of such harmful measures would not have occurred but for mounting pressure from foreign governments and the international community. African states are rightly positioned to do the same and ensure that they do not become complicit in the policies and actions of an administration bent on violating long standing human rights principles.