Nairobi (HAN) October 19, 2015 – Public Diplomacy and Regional Investment Initiative News By:A few weeks ago, I gave an interview to an Ethiopian civic group on the topic of “government in exile” under international law.I was asked to comment on whether the idea and practice of “government in exile” is cognizable under international law. The implicit question was whether Ethiopians could constitute a legitimate “government-in-exile” in opposition to the Thugtatorship of the Tigrean People’s Liberation Front (T-TPLF) lording over Ethiopia today. A word or two on the aim of this commentary.
The aim of my analysis here is not to endorse or discredit a particular group planning or purporting to be a “government-in-exile” for Ethiopia. Nor is it my aim to make a political point against the T-TPLF and show my opposition to their regime, their endless crimes against humanity, their bottomless corruption, their ignorant arrogance and sheer incompetence as a governance body.
I have done that with ferocious tenacity every Monday over the past nine years.
The aim of my commentary is to shed light on a question of broad interest among Ethiopians from my legal perspective.
As a defense lawyer, I have a particular perspective on legal issues. I do not pretend to be an impartial judge.
I am a highly partisan advocate for the causes I support.
But as an academic and human rights advocate, my commitment is to the unvarnished truth, impartial justice and the defense of the rights of humans against tyrants.
That’s why I proudly proclaim in the tagline of my website, “Defend human rights. Speak truth to power.”
For the last nine years, I have been speaking truth to users, abusers and misusers power in Ethiopia, in Africa and elsewhere.
To paraphrase George Bush, “I make no distinction between the abusers and misusers of power who commit crimes against humanity in Ethiopia and the hypocrites who harbor and support them.”
I have come to believe that the root of all evil and suffering in the world is ultimately the abuse of political power and the power to abuse political power. Not money.
That is why I will advocate with the same intensity for Syrian refugees suffering under the Assad/ISIL/ISIS regimes as I would for Ethiopians suffering under the T-TPLF.
My concern for human dignity is not tied necessarily to any particular nationality, but to humanity.
As I like to say, it is not about the nationality of the man or the woman but the huMANity of the man and woman.
As most of my readers have known for nearly a decade, I would not have been involved in Ethiopian politics or human rights advocacy but for the Meles Massacres of 2005.
Following the 2005 election, the late Meles Zenawi declared a bogus state of emergency.
The “emergency” was that his party had been thumped in that election.
Meles was determined to cling to power by any means necessary or unnecessary.
If Meles cannot stay in power by the consent of the people, he would by the barrel of the gun.
Meles Zenawi personally authorized and ordered his goons to use live fire on unarmed demonstrators causing the deaths of some 200 individuals and life-threatening injury to nearly 800. (There is incontrovertible evidence that the actual number of dead and wounded in the post-2005 election massacres is much higher, but the Inquiry Commission appointed by Meles was authorized to investigate deaths that occurred only on a few specific dates.)
Meles Zenawi has certainly escaped justice for his crimes against humanity.
But did he escape justice for his crimes against divinity?!
Will Meles’ henchmen who participated in the Meles Massacres ever be brought to justice for their horrendous crimes against humanity?
But for the Meles Massacres, there would have been no “Al Mariam’s Monday Commentaries” appearing every single week, without missing a single week, for the last 9 years.
But for the Meles Massacres, Meles alive and post-mortem, and the T-TPLF now would not be standing trial every Monday in the court of world public opinion.
But for the Meles Massacres, Meles and his gang of thugs would never have heard of an academic who left his motherland well over four decades ago.
I dare say that my professional “religion” is the rule of law; and as a practicing constitutional lawyer, I must religiously defend the rule of law in a court of law and the court of world public opinion.
For those who want a practical definition of the rule of law, let them consider the fact that in the second decade of the 21st century, a single political party can claim “winning” 100 percent of the seats in parliament in a country where there are allegedly 90 political parties, and have the leader of the “free world” anoint that election as “democratic”.
It would be impossible for a single party to win an election by 100 percent in a country where there is rule of law.
A 100 percent election victory is possible only in country ruled by bushmasters under the “Rule of the Bush” (or the jungle, if you will).
In other words, a 100 percent election victory is possible only in a thugmocracy, a term I coined to describe a form of government produced when one crosses a thugocracy with make-believe democracy.
A thugmocracy is a form of “government” in which the facade of representative electoral democracy is used to maintain and perpetuate the iron rule of a bunch of bush thugs who use state power to line their pockets and their cronies’ pockets.
I have stated all of the above to assert four simple facts: 1) I don’t have a dog in the race to from a “government in exile” for Ethiopia. 2) I believe those who are interested in offering an alternative “government-in-exile” to the T-TPLF have the right to do so under international law. 3) I believe a democratically elected government in Ethiopia will take expeditious measures to bring to justice all persons involved in the Meles Massacres. 4) I believe there are definite alternatives to the thugmocracy in Ethiopia.
I wish to underscore my personal declaration that I have no interest in political power, ONLY in the power of the rule of law triumphant over the Rule of the Bush Thugs.
As regards political power, I agree with Brutus’ in his declaration in Shakespeare’s Julius Caesar: “Th’ abuse of greatness is when it disjoins/Remorse from power. And, to speak truth of Caesar, I have not known when his affections swayed/ More than his reason.”
Simply stated, Brutus says all who seek power are blinded to compassion. Do they not say, “Political power grows out of the barrel of the gun”?
No! political power grows ONLY out of the consent and good will of the people.
The day a single political party “wins” 100 percent of the votes is the day pigs fly. Then again, pigs did fly on May 24, 2015.
Brutus says of those thirsting and hungering for power: “And therefore think him as a serpent’s egg— /Which, hatched, would as his kind grow mischievous—…”
I try to follow Albert Schweitzer’s maxim: “The purpose of human life is to serve, and to show compassion and the will to help others.”
I would only add, “… and to relentlessly seek justice for all victims of crimes against humanity”.
In a tiny, tiny way that is what I try to do every day!
In this commentary, my exclusive interest is in examining the international rule of law on the principle and practice of “government in exile” to advance service to humanity (and Ethiopianity and Africanity also, to be sure), to help others and to seek justice for victims of crimes against humanity in Ethiopia.
What is a “government-in-exile” under international law?
Generally, a “government in exile” is a political entity formed by groups abroad asserting claims of being the legitimate government of their native countries.
Such groups definitively reject the legitimacy of the government in power in their home countries and believe themselves to be the legitimate government. The ultimate aim of those instituting a government-in-exile oftentimes is to return to their native country and attain formal power.
There are no legal criteria under international law for the determination of competent governments-in-exile.
Groups need no legal sanction to constitute or style themselves as a government-in-exile.
Recognition of governments-in-exile is often a political act by the recognizing state which takes a variety of factors in its assessment of the legitimacy of the purported government-in-exile and its capacity as the “sole legitimate representative of a people”.
It may be helpful to understand the legal status of the “state” under international law to better understand “government-in-exile”.
A “state” must be sovereign to qualify as a subject under international law.
According to the 1933 Convention on the Rights and Duties of States (“Montevideo Convention”) , “The state as a person of international law should possess the following qualifications: a permanent population; a defined territory; government; and capacity to enter into relations with the other states.”
States also enjoy certain rights and privileges under international law including the capacity to make international treaties and agreements, access international tribunals and forums, implement obligations under international law and enjoy privileges and immunities from the jurisdiction of the domestic courts of other states.
All sovereign states are free to enter into relations with other “governments” to the extent it advances their national interest. There is no legal restriction on any state recognizing any “government-in-exile” it chooses subject to the principle of noninterference in the domestic affairs of other states. .
Strictly speaking, a “government in exile” is not a subject of international law since it manifests no sovereignty and is not attached to a legal state. That is to say, a government cannot exist under international law without the existence of a state.
Of course, governments-in-exile set up during foreign invasion, occupation or annexation of a country do not affect the legal existence of the state in exile.
But there are exceptions and different rules on the nature of the “state” and governments-in-exile. For instance, a national liberation front could present itself as a government-in-exile without being a state. A region of a country could exercise “self-determination” and declare a government-in-exile. Discussion of such issues will be deferred to another time.
There are legal theorists who argue that recognition of a government-in-exile, when there is a government effectively holding power in the particular state, amounts to unlawful intervention in the internal affairs of that state.
Other commentators on international law suggest that the legitimacy of a government-in-exile depends on at least four criteria including its representative character of the population, its political independence, the illegality of the government in power and manifestation of certain attributes of state.
The key criteria of “legitimacy” in the legal analysis of “government-in-exile” is somewhat problematic as there is no agreed upon definition of “legitimacy” under international law for such purposes.
One school of thought suggests that the legitimacy of a government-in-exile could be determined by its democratic legitimization. In other words, only democratically elected should be regarded as legitimate governments when exiled. Others argue each state is free to independently determine whether a government-in-exile is legitimate.
Recognition of a government-in-exile appears to negate the basic principle of international law dealing with respect for the territorial sovereignty of and non-interference in the domestic affairs of other states.
Some international legal commentators limit the recognition of governments-in-exile to the extent of expulsion of a government by belligerent foreign forces, during an occupation and in support of resistance groups.
That is likely the reason why there have been more governments-in-exile during war time than peace.
It should be underscored that there is no single agreed upon definition of “government-in-exile” in international law. There is also no formal doctrine or treaties on “governments-in-exile”.
Indeed, there are some commentators on international law who argue that there is no identifiable body of international norms that could be classified as the “law of governments-in-exile”. They suggest that ultimately, the legal personality of governments-in-exile depends on the relationship between the purported government-in-exile and recognizing governments who decide to act in their national interest.
I shall argue that there is sufficient custom or state practice and opinion juris (opinion of law) that upholds the notion of “government-in-exile”. Simple stated, there is ample state practice which supports the view that in certain circumstances states have formally and informally recognized “governments-in-exile” out of a sense of political, legal or moral obligation.
While international lawyers could argue whether there is substantial evidence of customary international law on governments-in-exile, I take the position that there is sufficient state practice to make governments-in-exile cognizable under international law.
I submit that there is some minimal degree of consistency and uniformity both in the formation and recognition of governments-in-exile.
There is ample longitudinal evidence beginning after WW I supporting the formation and recognition of governments-in-exile.
In the contemporary context, numerous states including members of the U.N. Security Council have in one form or another recognized various governments-in-exile consistent with prevailing requirements of international law and advancement of their national interests.
In a strictly juridical sense, it could be argued that there is no opinio juris (an opinion of law or necessity) which states accept as legally binding in recognizing or not recognizing governments-in-exile. In other words, there is no international custom on governments-in-exile evidenced “as a general practice accepted as law”. (ICJ Statute, Article 38(1)(b).)
While there may not be substantial evidence of a general practice of governments-in-exile accepted as law, I shall argue that there are certain norms of international law validated through state action and custom for the establishment and recognition of “governments-in-exile”. In other words, I believe that there is a body of uniform practice of states in recognizing governments-in-exile which gives rise to the legality of the creation and recognition of “governments-in-exile”.
Though “governments-in-exile” appear to be principally a 20th century phenomenon, the practice of maintaining a government outside the territory of the native country predates the formal use of that phrase.
I would argue that King David was the first “leader” to establish the first “government-in-exile”.
Some Biblical scholars argue that Absalom, David’s son, decided to oust his father and become king.
In furtherance of that objective, Absalom would go to the city gates of Jerusalem and hear the people’s complaints about governance under his father’s rule.
After a few years of doing this, Absalom gained the favor of the people. He deceived his father that he would be away for a while. Absalom soon announced he was to be made king. When David learned of the coup, he escaped Jerusalem with his supporters and set up a government-in-exile. He returned triumphantly after defeating his son in battle.
For centuries, exiled monarchs and dynastic rulers have set up governments-in-exile (“exile courts”). Chief among them British and French Royalty escaping revolution.
In the 20th century, most governments-in- exile have been formed during wartime occupation.
During WW II, governments, resistance groups and royalty from Denmark, Greece, Poland, Norway, Yugoslavia, the Netherlands, Luxembourg, Belgium, Czechoslovakia, and maintained government-in-exile in London. Many of these governments-in-exile were recognized by the British Government as the de jure (legal) governments of their occupied countries.
I should like to argue that the most prominent case of international law involving the legitimacy of a government-in-exile occurred after WW I involving the government set up by Ethiopia’s H.I.M. Haile Selassie.
Following the Fascist Italian invasion of Ethiopia in October 1935, Great Britain and other European states accepted de facto Italian rule over Ethiopia, while at the same time recognizing Haile Selassie as the legitimate sovereign of Ethiopia.
The legal status of Haile Selassie’s government in Britain as Ethiopia’s government-in-exile was tested in the British judicial system and affirmed by British appellate court (not by an act of the British Parliament or a ministerial act).
At issue in Haile Selassie v. Cable and Wireless Limited was the status of a 1934 contract for radio and telegraphic service between the Government of Emperor Haile Selassie and Cable and Wireless Ltd.
In May 1936, Haile Selassie left for exile in Britain and the King of Italy declared himself Emperor of Ethiopia.
In 1937, Emperor Haile Selassie brought an action before the High Court of England claiming £10,600 from Cable and Wireless. The Italian Government also made a claim for the money.
After some litigation, the Court of Appeal in 1938 decided in favor of Haile Selassie.
That Court concluded that the British Government still recognized Haile Selassie as the de jure (by law) Emperor of Ethiopia and has not recognized de jure the King of Italy as the emperor of Ethiopia.
However, during Cable and Wireless’ second appeal, the British Foreign Office in November 1938 certified that “His Majesty’s Government no longer recognizes his Majesty Haile Selassie as the de jure Emperor of Ethiopia and now recognizes the King of Italy as the de jure Emperor of Ethiopia.”
The case was dismissed by the Court of Appeal but there remained some lingering issues of state succession and governments-in-exile.
Ironically, the British Government recognized Haile Selassie’s government-in-exile after Italy entered WW II in June 1940.
There have been various attempts to deal with recognition of governments during the 20th century.
The “Estrada Doctrine” (Mexico) declared that foreign governments should not judge, positively or negatively, the governments or changes in government of other states as such action may be offensive to sovereignty. This doctrine raises the question of whether it is morally and politically valid for a government (in this case the Mexican) to stay “neutral” in the establishment of dictatorships.
The “Tobar Doctrine” prohibited extension of recognition to any government that accedes to power by other than constitutional means in Central America.
Following the “Stimson Doctrine”, the U.S. declared its non-recognition of international territorial and state changes that were executed by force. The Stimson Doctrine also recognized the governments-in-exile of annexed states as legitimate international legal actors.
I would argue that support for governments-in-exile are perfectly legal under international law in peace time so long as there is no direct intervention in the domestic affairs of the target state. In the Corfu Channel case (1949), the International Court of Justice affirmed the “right of every sovereign State to conduct its affairs without outside interference.”
But there have been many exceptions to the Corfu Channel rule including “humanitarian intervention”. For instance, during the Kosovo crisis in 1999, NATO launched military strikes to stop Serbian ethnic cleansing as a moral imperative, despite opposition from Russia, China, and many other states.
The international juridical personality of a government-in-exile depends largely on the strategic consideration of recognizing states.
States take into consideration a variety of factors in recognizing a group as a “government in exile”. For instance, they may look for evidence of some act of state on behalf of the home country by the group claiming to be a government in exile.
A government-in-exile may assert (prove) its legal existence by undertaking a variety of actions normally carried out by governments in power. These actions may include issuing a constitution, obtaining diplomatic recognition by other states, maintaining political parties, becoming a party to a treaty and even issuing identity cards.
The practical nature of a government-in-exile depends principally on the direct or indirect support is can garner from the general or segmented part of the population of the native country and from foreign governments. These two factors determine whether the “government in exile” remains a symbolic force or a potent force capable of challenging the regime in power in the native country.
Some examples of governments-in-exile
The Tibetan government-in-exile is headed by His Holiness the 14th Dalai Lama Tenzin Gyatso (Dalai Lama) and rejects Chinese subjugation of the Tibetan people and condemn the occupation of Tibet by China since 1959.
The Central Tibetan Administration (CTA) or Tibetan Government in Exile based in India aims to “rehabilitate Tibetan refugees and restore freedom and happiness in Tibet.”
CTA is “not designed to take power in Tibet”; rather, it will be dissolved “as soon as freedom is restored in Tibet” in favor of a government formed by Tibetans inside Tibet.
The Coalition Government of Democratic Kampuchea (CGDK) was a coalition government-in-exile composed of three Cambodian political factions. The CGDK was considered a legitimate government-in-exile over the Vietnamese puppet regime and permitted to represent Cambodia in the U.N. The CGDK was dissolved in 1993 after the U.N. turned power over to the restored Kingdom of Cambodia.
The government-in-exile of Kuwait was established following Iraq’s invasion of that country in 1990. Saudi Arabia provided the government-in-exile of Emir Jaber Al-Ahmad Al-Jaber Al-Sabah offices and facilities to set up ministries, a radio station and communications capabilities to continue functioning as the legitimate government of Kuwait. Most states formally announced their recognition of the Kuwaiti Government-in-Exile.
Following the overthrow of the Government of President Jean Bertrand Aristide of Haiti in 1991 and subsequent exile, the Bahamian Government continued to recognize him as the “constitutionally and democratically elected government of Haiti.” The Nation magazine citing Wikileaks cables reported that the U.S. undertook a “far-reaching campaign to prevent Haiti’s democratically elected leader from returning to the country after the 2004 coup.”
When the Russians overran Grozny in 2000, the Chechen government became a government-in-exile and relocated to various Arab countries, the U.K., the U.S. and Poland.
The National Coalition Government of the Union of Burma (NCGUB), formed in 1995 in Sweden with headquarters in Maryland, claimed to be the government in exile of Burma before dissolving in September 2012. “The NCGUB believes that its dissolution will contribute to the achievement of national reconciliation which is inevitably needed in Burma as well as the endeavors being made for the emergence of a national political program that all deserving participants can join.”
The Progress Party of Equatorial Guinea (PPEG) was established shortly after the legalization of political parties in that country in the early 1990s. Due to government persecution, the PP leadership declared a government-in-exile in Spain.
In 2015, the Government of Yemen became a government-in-exile after a rebellion by the Houthi, Shia tribesmen in North Yemen. President Abd-Rabbu Mansour Hadi fled Aden for the Saudi capital Riyadh in March 2015 as Houthi forces consolidated their military domination. In September 2015, Yemeni Prime Minister Khaled Bahah returned to the southern port of Aden accompanied by seven ministers” after “loyalist fighters backed by Saudi-led troops recaptured the port city from Iranian-allied Houthi forces.”
Could Syria have been saved from the devastation of civil war if it had established a cohesive and functional government-in-exile?
The Syrian civil war began in the Arab Spring in March 2011 when protesters demanded reforms and release of political prisoners.
The Bashir al-Assad regime believed it could put out the popular fire by firing on the protesters.
The protests turned into a popular uprising and spread like wildfire. Within a month, Assad’s soldiers launched deadly attacks on cities and towns using armor, artillery and warplanes.
Could Syria have been saved if its political, social, economic, civic and other leaders, groups and associations have come together and formed a “government in exile” early in the Damascus Spring?
The Syrian National Council (SNC) was established in exile months after the anti-Assad uprising with the aim of “forming a unified umbrella framework with the other principal opposition grouping in Syria.”
By April 2012, SNC had been recognized by some 17 countries (including the U.S., U.K. and France) and the European Union as the “legitimate representative of the Syrian people” (government-in-exile?).
Internal problems and lack of a clear program and strategy in the SNC and its failure to unite the other opposition groups and the emergence of new groups prompted most of the countries to withdraw their full support to SNC.
In October 2012, the U.S. announced that it no longer considered the SNC to be “the visible leader of the opposition” and called for a new opposition leadership that would more effectively represent “those who are in the frontlines, fighting and dying today to obtain their freedom.”
The SNC subsequently joined the National Coalition of Syrian Revolutionary and Opposition Forces.
In April 2012, a year after the Syrian protest-turned-uprising, a three day conference was held in Istanbul by representatives of some 200 Syrian political, social, religious, military and civic groups and organizations in hopes of establishing a “government in exile” in preparation for Syria’s transition to democracy.
In November 2012, at a conference organized by the Syrian Centre for Political and Strategic Studies, Syrian opposition groups “agreed on the need to put aside our ideological differences to agree on creating a government in exile.”
The Syrian Center for Political & Strategic Studies made critically important recommendations for political and administrative reform in the post-Assad phase.
There were recommendations on reform of the electoral system and party law.
The Day After Project was established to contribute to a successful transition in a post-Assad Syria. Its broad aim was to promote a new national identity and the rule of law, establish stable governance, foster unity in Syria’s diversity, build consensus on the core values and fundamental principles, eliminate sectarianism and affirm that unity of all Syrians, among many others.
The Syrian opposition never managed to establish a fully functional government-in-exile principally because of internal dissension.
The Syrian civil war continues today as Russia recently joined the civil war by strafing positions help by anti-Assad opposition groups and ISIS/ISIL positions. According to Al Jazeera, the Russian air war continues to take a “major toll on civilian areas across the provinces of Homs and Aleppo.”
Could Ethiopia be saved from….