Obama's Africa Policy on Human Rights, Use of Force and Humanitarian Intervention: In Whose Interest

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Florida A & M University Law Review Volume 7 Number 1 The Rule of Law and the Obama Administration Article 4 Fall 2011 Obama's Africa Policy on Human Rights, Use of Force and Humanitarian Intervention:
Florida A & M University Law Review Volume 7 Number 1 The Rule of Law and the Obama Administration Article 4 Fall 2011 Obama's Africa Policy on Human Rights, Use of Force and Humanitarian Intervention: In Whose Interest Vincent O. Nmehielle John-Mark Iyi Follow this and additional works at: Part of the Human Rights Law Commons, International Humanitarian Law Commons, and the International Law Commons Recommended Citation Vincent O. Nmehielle & John-Mark Iyi, Obama's Africa Policy on Human Rights, Use of Force and Humanitarian Intervention: In Whose Interest, 7 Fla. A&M U. L. Rev. (2011). Available at: This Article is brought to you for free and open access by Scholarly FAMU Law. It has been accepted for inclusion in Florida A & M University Law Review by an authorized editor of Scholarly FAMU Law. For more information, please contact OBA1A'S AFRICA POLICY ON HumAN RIGHTS, USE OF FORCE AND Hu1VANITARIAN INTERVENTION: IN WHOSE INTEREST? Vincent 0. Nmehielle* & John-Mark Iyi** TABLE OF CONTENTS I. INTRODUCTION THE UNITED STATES, AFRICA AND THE IDEA OF HUMAN RIGHTS IN HISTORICAL PERSPECTIVE III. THE UNITED STATEs' ATTITUDE TOWARDS THE USE OF FORCE AND PROTECTION 00F HumAN RIGHTS IN AFRICA IV. HUMANITARIAN INTERVENTION AND OBAMA AFRICA POLICY. 42 V. OBAmA AFRICA POLICY AND RESOLUTION OF CONFLICTS IN AFRICA A. Militarization of Africa B. Protecting Corporate America VI. OBAmA AFRICA POLICY AND THE GLOBAL WAR ON TERROR (GWOT) VII. CHINA, OBAMA AFRICA POLICY, AND THE RESOURCE RACE. 65 VIII. CONCLUSION: U.S. POLICY, HUMAN RIGHTS IN AFRICA AND THE DEATH OF AN IDEA * Professor Vincent 0. Nmehielle is the Head of the Wits Programme in Law, Justice and Development in Africa at the University of the Witwatersrand School of Law, Johannesburg, South Africa. He was the Principal Defender of the United Nations-Backed Special Court for Sierra Leone from ** John-Mark Iyi is a PhD Candidate and a Programme Associate at the Wits Programme in Law, Justice and Development in Africa at the University of the Witwatersrand School of Law, Johannesburg, South Africa. 29 30 FLORIDA A & M UNIV. LAW REVIEW Vol. 7:1:29 Under Obama, [U.S.] foreign policy in Africa is based on four objectives - needs, threats, responsibilities and opportunities. Needs are energy for example, primarily in the form of fossil fuels, while threats are climate change, narcotics and people trafficking, terrorism and disease. Responsibilities are the promotion and protection of human rights, democracy and development and opportunities are in the form of African dynamics, investments and access to markets. These objectives serve both regions and hold the most importance to [U.S.] national interests concerning Africa. The current [U.S.] policy priorities in Africa are democracy and governance, conflict mitigation, economic growth and development, health issues, transnational issues, climate change and woman's rights. The [U.S.] policy approach is based on partnership and collaborative diplomacy. ' I. INTRODUCTION The relationship between the United States and Africa has largely been defined by the historical intercourse of the global North and South divide and how the results of that intercourse have played out in the domestic social, economic and political milieu of the United States and Africa. 2 Beginning in 1619, the first group of Africans were sold into slavery in North America, and several million more were subsequently transported from Africa to the Americas during the Trans- Atlantic Slave Trade. 3 Colonialism followed and saw the maximum exploitation of the human and material resources of the continent [Africa] and the appropriation of African peoples and territories. 4 The promise that man could live in freedom while pursuing his happiness as a member of the human community has never really been realized by Africans and Africa Anton M. Pillay, Great Expectations: Examining Obama's Foreign Policy in Africa, ConsultancyAfrica.com, content&view =article&id=764:great-expectations-examining-obamas-foreign-policy-in-africa-&catid=57: africa-watch-discussion-papers&itemid=263 (Last visited 10/04/2012). 2. 'The turning of Africa into a commercial warren for the hunting of black skins was one of the chief sources of primitive accumulation that signaled the rosy dawn of the era of capitalist production. See, Lena Weinstein, The New Scramble for Africa, 60 INT'L SOCIALIST REV. (Aug. 2008), available at: shtml., quoting Karl Marx, CAPITAL VOL. I 915 (1977). 3. PETER J SCHRAEDER, Removing The Shackles? U.S. Foreign Policy Toward Africa after the Cold War, in AFRICA IN THE NEW INTERNATIONAL ORDER: RETHINKING STATE SOVEREIGNTY AND SECURITY 187, 188 (Edmond J. Keller & Donald Rotchild eds., 1996). 4. Umozurike, U. 0. The African Charter on Human and Peoples' Rights: Suggestions for More Effectiveness, 13 ANN. SURV. INT'L & COmP. L. 8 (2007), available at: commons.1aw.ggu.edulannlsurvey/voll3/iss1/8. 5. MOSES MOSKOWITZ, INTERNATIONAL CONCERN WITH HuMAN RIGHTS 1, 3 (1974). 2011 OBAMA'S AFRICA POLICY ON HUMAN RIGHTS 31 This failure has been due primarily to the warped structure of the global North-South relationship, which has produced misfortunes for the peoples of Africa. As aptly put by Nino, [Tihese misfortunes occur not only because of the scarcity of resources, but also because many use their fellow humans as just another resource, either for their own benefit or to realize peculiar visions of the absolute good. This practice of using men and women as instruments is even more disastrous if, as often happens, it is carried out by the powerful, by those who have access to weapons or other means of subjecting other people to their will on a large scale. 6 In Africa, not even the noble causes of human rights promotion, protection, or enforcement have been spared this misfortune in her relationship with the global North in general and the United States in particular. These historical dialectics have necessitated the present excursion into the nature of the relationship between the United States and Africa and into who stands to gain what, particularly with President Barack Obama having been elected as President of the United States in President Obama's election as U.S. President was greeted with great euphoria and a high expectation of change. While his election was celebrated globally as marking a high point in the struggle against racial discrimination and the clamour for equality in the United States, it was particularly celebrated across Africa. 7 Many ordinary Africans naively saw President Obama, whose father is an African from Kenya, as their African son who had become the occupant of the highest political office in the world and leader of the free world. While no one can take away President Obama's African heritage, informed Africans are not naive to believe that President Obama is any less American than other U.S. presidents before him regarding his Africa policy thrust. With his sights now set on preparing for re-election for a second term as U.S. President, it is important to ask what interests President Obama's Africa policy has served during his first term of office. Because it is impossible to analyze the Obama administration's policy on Africa relative to human rights, use of force and humanitarian intervention without considering the history of U.S.-Africa 6. CARLoS SANTIAGO NINO, THE ETHICS OF HUMAN RIGHTS 1 (1991). 7. Sebastion Berger, Kenya Declares National Holiday in Celebration of Barack Obarna's Presidential Victory, THE TELEGRAPH, Nov. 5, uk/news/worldnews/barackobama/ /kenya-declares-national-holiday-in-celebrationof-barack-obamas-presidential-victory.html. 32 FLORIDA A & M UNIV. LAW REVIEW Vol. 7:1:29 relations, an article of this nature by implication must, from the outset, set out the framework within which the U.S. has historically defined its African policy. Accordingly, section I of this article introduces the issue in this issue. Section II provides a historical background of the United States' policy on Africa in order to situate the analysis in its proper historical context and shed light on what factors have shaped, and continue to shape, U.S.-Africa policy, as well as highlight the policy shifts as those factors have changed over time. Section III considers the issue of human rights and the use of force in Africa vis-avis U.S. policy. Section IV examines the Obama Administration's policy on Africa on two of the four major policy thrusts as outlined by the administration and relevant to the subject discussed here, namely human rights protection and the peaceful resolution of conflicts. Section V provides the authors' conclusions. The authors of this article hold the view that the United States has always defined its relations with Africa as a function of what purpose Africa has served in the pursuit and realization of U.S. national interests. As those interests have changed, Africa's relevance has swung between obscurity and at best indifference for U.S. policymakers and not even the election of an African-American U.S. President will change that. This philosophy cuts across the entire spectrum of U.S.-African policy including human rights, use of force and humanitarian intervention. II. THE UNITED STATES, AFRICA AND THE IDEA OF HuITMAN RIGHTS IN HISTORICAL PERSPECTIVE One of the greatest achievements of the Twentieth Century was the advancement of human rights. The United Nations Charter, together with the International Bill of Rights, ushered in an era of internationalization of human rights with a momentum never seen before. 8 From the north to the south, the shackles of colonial domination were broken 8. [tlo reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small... See, U.N. Charter Preamble, 1st plen. mtg, adopted on June 24, 1945 in San Francisco and came into force on October See also, U.N. Charter art. 2, 56. (duties of Member States and the United Nations to promote human rights); The Universal Declaration of Human Rights, G.A. Res (III)A, U.N. Doc.A/RES/217(III) (Dec. 10, 1948); International Covenant on Civil and Political Rights (ICCPR), G.A. Res (XXI)A (Dec. 16, 1966); International Covenant on Economic, Social and Cultural Rights (ICESCR), G.A. Res (XXI)A (Dec.16, 1966); The Convention on the Prevention and Punishment of the Crime of Genocide, G.A. Res. 260 (III)A December (Dec. 9, 1948). There are a plethora of other International Committee of the Red Cross instruments and UNGA Declarations that today form part of customary international law and international human rights law corpus. 2011 OBAMA'S AFRICA POLICY ON HUMAN RIGHTS 33 in Africa, racial segregation dethroned in the United States and the flames of apartheid extinguished in South Africa. In the 1960s and 1970s, women's liberation movements engendered gender equality as the Third World agitated for solidarity rights, and in particular the right to development gained momentum. 9 The United States played a key role in all of these events and Africa was considered only abstractly, relegated to either a positive or negative impact, depending on United States' interests. As the only major power that emerged relatively unscathed from World War II, the United States was the chief architect of the new international legal and economic order, driving the process for the creation of most of the intergovernmental organizations (IGOs) and institutions that emerged after World War II, such as the United Nations (UN), the Bretton Woods Institutions, the General Agreement on Tariffs and Trade (GATT) agreement and many more. 10 Thus, the United States had the historic opportunity to design global institutions that would shape the future of its inter-state relations, allowing it to establish a framework which would ensure that American values and interests would always be protected. 11 Though sometimes universal and in congruence with those of other states, the fact that these values were not always pursued in the common interests, despite rhetoric to the contrary, was manifested in the ensuing Cold War, and the impact is still felt to this day more in Africa than in nearly any other locale. As most African states emerged from colonial rule in the 1960s, they looked up to the United States as the champion of human rights, as the United States had been instrumental to the creation of all of the most fundamental international human rights instruments. 12 But African states first had cause to seriously call American credentials into question when the United States opposed the Third World agitation for a New International Economic Order (NIEO) and the demand for a right to development. 13 It stands to reason that since post-colonial Af- 9. For a detailed discussion of the subject, See Generally, PHILIP ALSTON, RYAN GOODMAN & HENRY I. STEINER, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS (3d ed., 2007); RicHARD B. LILLICH, INTERNATIONAL HUMAN RIGHTS: PROBLEMS OF LAW, POLICY AND PRACTICE (2ed., 1991); SOHN L.B & BUERGENTHAL T., INTERNATIONAL PROTECTION OF HUMAN RIGHTS (1973); Thomas Buergenthal, The Evolving International Human Rights System, AM. J. INT'L L (2006). 10. MARGARET P KARNS & A MINGST, INTERNATIONAL ORGANIZATIONS: THE POLITICS AND PROCESSES OF GLOBAL GOVERNANCE 258 (2d ed., 2010). 11. Id. 12. Id. at 492; See also the major international human rights instruments supra note S.B.O. Gunro, Violations of Human Rights in the Third World: Responsibilities of States and TNCs in THIRD WORLD ATTITUDES TOWARD INTERNATIONAL LAw: AN INTRODUCTION 275, 276 (Frederick E. Snyder & Surakiart Sathirathai eds., 1987); See also 34 FLORIDA A & M UNIV. LAW REVIEW Vol. 7:1:29 rican states had suffered historical injustices that contributed to the present malaise on the continent, it was only fair that they should demand a NIEO that allowed them to participate in the distribution of global wealth. 14 But realizing that a recognition of the right to development as a human right would impose a corresponding duty on the United States (and other countries of the global North) to transfer resources, knowledge and technology to the South (particularly Africa), the United States vehemently opposed almost every attempt by the UN to create or sponsor institutions and programs that would facilitate the recognition of the right to development as a human right. 15 To this end, the United States waged an intellectual-cum-ideological war against the South that undermined the West's recognition of the human right to development. 16 Whenever concerns of civil and political rights stood in the way of advancing the United States' national interests, such rights were often crushed ruthlessly. The promotion and protection of human rights in Africa by the United States has historically been subject to the United States' national interests. Post-colonial African history is replete with instances of United States providing support for some of the most brutal dictators and regimes with the worst human rights records, such as Mobutu Seseko of Zaire, the Jonas Savimbi-led National Union for the Total Independence of Angola (UNITA), and Mohamed Farar Aideed of Somalia, all of whom were clients of the United States at one time or another and for as long as they furthered the United States' national interests. 1 7 In the late 1980s, the government of Aideed was the beneficiary of millions of U.S. dollars and CLARENCE CLYDE FERGUSON JR., Redressing Global Injustices: The Role of Law, in THIRD WORLD ATTITUDES TOWARD INTERNATIONAL LAW: AN INTRODUCTION 365, (Frederick E. Snyder & Surakiart Sathirathai eds., 1987); PHILIP ALSTON, The Right to Development at the International Level in THIRD WORLD ATTITUDES TOWARD INTERNATIONAL LAW: AN INTRODUCTION 811, 811 (Frederick E. Snyder & Surakiart Sathirathai eds., 1987). 14. CLARENCE CLYDE FERGUSON JR., Redressing Global Injustices: The Role of Law in THIRD WORLD ATTITUDES TOWARD INTERNATIONAL LAW: AN INTRODUCTION 363, 365, 371 (Frederick E. Snyder & Surakiart Sathirathai eds., 1987). 15. Id. at 374, The fallout from this conflict has had the effect that the U.S. has refused to ratify the ICESCR to this day. See generally, John-Mark lyi, Right to Development: Myth or Reality? (June 2007) (unpublished manuscript) (on file with authors). 17. Ved P. Nanda, Thomas F. Muther Jr. & Amy Eckert, Tragedies in Somalia, Yugoslavia, Haiti, Rwanda and Liberia -Revisiting the Validity of Humanitarian Intervention under International Law Part II, 26 DENV. J. INT'L L. & POL'Y 827, 831 (1997/98). See also Rick Rozoff, AFRICOM: Pentagon Prepares Direct Military Intervention in Africa, STOP NATO (Aug. 24, 2009), 2011 OBAMA'S AFRICA POLICY ON HUMAN RIGHTS 35 weapons. This aid is partially responsible for the intractable Somali conflict and the conflict in the Horn of Africa region today.18 Samuel Doe of Liberia was a long time beneficiary of U.S. aid while he ran a brutal dictatorship that eventually plunged Liberia into a bloody civil war, only to see that when the war started the United States promptly evacuated its nationals, becoming passive bystander in a war it helped promulgate. 19 And more recently, what can be said of the United States' human rights policy and support for Hosni Mubarak of Egypt, can, perhaps to a lesser degree, be said of the defunct apartheid regime in South Africa. Thus, from a historical standpoint, the United States' human rights policy towards Africa is mixed. As was once said of the history of the development of equitable principles under English law, it is a roguish thing that varies not only with the convictions of the U.S. President, but also on the world view of the incumbent U.S. Secretary of State. 20 [T]he dynamics of [U.S.] domestic politics-including presidential leadership (or the lack thereof), executive-legislative relations, lobbying by domestic groups, and public opinion, depends on many amorphous and often vague variables. 21 Whatever the administration and whatever its foreign policy thrust, there is just one constant interest, and that is U.S. national interest. This context is important because as we examine President Obama's human rights policy in Africa, it would be instructive to bear in mind that no matter what a particular U.S. administration professes, [TIhe U.S. and organizations like the North Atlantic Treaty Organization (NATO) have [always] 'served domestic political purposes by creating a web of international entanglements and domestic sup- 18. Ken Menkhaus, Governance without Government in Somalia: Spoilers, State Building, and the Politics of Coping, 31 (3) INT'L SEC. 74, 80 (Winter 2006/7). 19. Max A. Sesay, Civil War and Collective Intervention in Liberia, 23(67) REv. AFR. POL. ECON. 35, 40 (1996); CHRISTINE GRAY, INTERNATIONAL LAw AND THE USE OF FORCE 211 (2d ed., 2004). 20. Equity is a Roguish thing, for Law we have a measure know what to trust too. Equity is according to the conscience of him who is Chancellor, and as that is larger or narrower soe is equity. Tis all one as if they should make the Standard for the measure wee call A foot, to be the Chancellors foot; what an uncertain measure would this be; One Chancellor has a long foot another A short foot a third an indifferent foot; tis the same thing in the Chancellors Conscience quoted in H. Jefferson Powell, Cardozo's Foot : The Chancellor's Conscience and Constructive Trusts 56(3) LAW & CONTEMP. Peous 7, 7 (1993) concluding that the principles of 'equity varies with the size of the foot of the Chancellor of the Exchequer'. The term of Henry Kissinger as U.S. Secretary of State and the Presidency of George W. Bush illustrate this point. 21. KARNS & MINGST, supra note 10, at 261. 36 FLORIDA A & M UNIV. LAW REVIEW Vol. 7:1:29 port constituencies that have influenced successive administrations' policies. 2 2 The implication is that no matter what is contained i
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