‘Shithole’ countries: The African state and the Trumpian moment in international law

In January 2018, it was reported that, in a meeting with a group of senators at the White House, United States President Donald Trump had referred to Haiti and African nations as ‘shithole countries’.

He is said to have asked: ‘Why are we having all these people from shithole countries come here?’ and to have wondered why, in their stead, the US did not receive immigrants from countries like Norway.

For a long time – eight years to be exact – Trump denied making the evidently racist remarks. Then, in December this year, he abandoned all pretence. In a speech in Pennsylvania, Trump said: ‘I’ve also announced a permanent pause on Third World migration, including from hellholes like Afghanistan, Haiti, Somalia and many other countries.’

When an audience member yelled ‘shithole’, Trump responded: ‘I didn’t say shithole, you did … Remember, I said that to the senators. They came in, the Democrats. They wanted to be bipartisan. So, they came in, and they said this is totally off the record. Nothing mentioned here. We wanted to be honest, because our country was going to hell, and we had a meeting and I say, “why is it we only take people from shithole countries,” right?

Why can’t we have some people from Norway, Sweden — just a few — let us have a few, from Denmark. Do you mind sending us a few people? Send us some nice people, do you mind? But we always take people from Somalia, places that are a disaster, right?

Filthy, dirty, disgusting, ridden with crime.’ Trump is not alone in this view – as the rise of far-right political parties in many parts of Europe demonstrate (not to mention the political discourse in the United States and elsewhere).

The stage seems to be set for the formulation of a new, dystopian international order, in which many of the norms long taken for granted in the post-1945 moment may be undermined if not abandoned altogether. It is a dangerous time to be a weaker actor – as many African States are – in the international community.

As is well known, Africa has historically had a troubled relationship with international law. It was, after all, ‘international law’ which was used to justify – and facilitate – colonial occupation and domination.

The apex of this was the General Act of the Berlin Conference which provided the actual rules for the subjugation of entire peoples deemed to be inferior – or ‘garbage’ (to use the language of Trump).

Without a hint of irony, the General Act, signed on 26th February 1885, began with the words: ‘In the name of Almighty God…’. I would think that more Ugandan citizens would understand those of us who are more agnostic when it comes to religious matters.

Thus, in the name of God, the gathered envoys – from among others, the United States of America, Germany, Austria, Hungary, Belgium, Spain, Denmark, France, the United Kingdom, the Netherlands, Portugal, Sweden, Norway and the Ottoman Empire (present-day Turkey) – proceeded to agree on the rules to subjugate and dehumanize entire populations of Africans.

In the second paragraph of the Preamble, the Treaty stipulated that it was concluded, in part: ‘Wishing to regulate in a spirit of good mutual understanding the conditions most favourable to the development of commerce and of civilization in certain regions of Africa …’

The language was telling – foregrounding the three Cs which were articulated as the pillars of colonial ideology: Christianity, Commerce and Civilization. Evidently, one can only set out to ‘civilize’ that or those who are considered to be ‘savages’ or ‘barbarians’.

It was based on these agreed rules that the ‘scramble for Africa’ rolled out in earnest, in Uganda witnessed by the declaration of the ‘Protectorate’ in 1894 and in various ‘Agreements’ (the most famous being the ones of 1900 with Buganda and Toro, and 1901 with Ankole).

The very language of ‘Protection’ itself betrayed the continuing use of language to subjugate – being a very thin euphemism for domination based on perceived superiority.

Eventually, as is often the case, the very impulses which triggered the domination of Africa and other parts of the world – imperialism, militarism, and ultra-nationalism (among others) – led to armed conflict drawing in many of the very powers who had arrogated to themselves the right to dominate others.

Following that great, and tragic conflict – the First World War (fought from July 1914 to November 1918) a humbler international community emerged, with a greater understanding of the value of peace and, to an extent, respect for State sovereignty.

From the devastation of that war emerged the League of Nations, instituted in January 1920 in the Paris Peace Conference which ended the First World War. The Covenant of the League of Nations, signed June 1919 as part of the Treaty of Versailles, was clear in its intention to ‘promote international co- operation and to achieve international peace and security’ through, among other things, ‘acceptance of obligations not to resort to war, … the prescription of open, just and honourable relations between nations, … the firm establishment of the understandings of international law as the actual rule of conduct among Governments, and by the maintenance of justice and a scrupulous respect for all treaty obligations …’ (see Preamble to the Covenant).

In its lifetime, four African countries would be members of the League: South Africa (at its founding in January 1920), Liberia (admitted in June 1920), Ethiopia (admitted in September 1923) and Egypt (admitted in May 1937).

Unfortunately, in time, the commitment to peace was soon abandoned, for many of the same reasons that triggered the first major conflict (and which are increasingly on display in the international community now).

In Africa, the League particularly proved inept at saving Ethiopia from Italian aggression. At the height of Italy’s determined onslaught, on 30th June 1936, Emperor Haile Selassie of Ethiopia warned the members of the League of the consequences that would come from their failure to commit to the letter and spirit of the Covenant.

The speech he delivered then, decrying the violation of Ethiopian sovereignty and of basic rules of humanitarian law (including protection of civilians and the prohibition of the use of chemical weapons) rings as true today and when he first delivered it to the assembly in Geneva: ‘Apart from the Kingdom of the Lord there is not on this earth any nation that is superior to any other.

Should it happen that a strong Government finds it may with impunity destroy a weak people, then the hour strikes for that weak people to appeal to the League of Nations to give its judgment in all freedom. God and history will remember your judgment.’

It is again of some irony that the Emperor thought an appeal to God would be successful, when the very document which had allowed for the colonization of most of Africa had been issued ‘in the name of the Almighty God.’

In the wake of the lessons of the failure of the League, the United Nations system was established, with the United Nations Charter memorializing the intentions, among other things: ‘to save succeeding generations from the scourge of war, which … ha[d] brought untold sorrow to mankind; … [and] to 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 Preamble to the UN Charter).

To this end, there was a commitment, in the Charter, to the maintenance of international peace and security, respect for the self-determination of peoples, and the prohibition of the threat or use of force in international relations.

It was clear, going forward, that colonialism was inconsistent with the new international order, setting the stage for the process of ‘formal’ decolonization which followed. Indeed, it is not accidental that the first African representation in the Uganda Protectorate ‘Parliament’ was achieved in 1945.

Even then, old prejudices persisted, some woven into the very fabric of international law itself. This is perhaps best exemplified by the language in Article 38 (1) (c) of the Statute of the International Court of Justice (ICJ) which made reference among other sources of international law to the ‘[g]eneral principles of law recognized by civilized States’.

Since that time, international law has continued to be ambivalent towards the African State – only very grudgingly accepting their membership of the community of nations. A good example in his regard is the structure of the United Nations Security Council (among other forms of de jure and de facto inequality).

The Trumpian moment in international law is, therefore, not a particularly new one. It is only the latest iteration of a much older prejudice, against the ‘other’ in the international community. What makes it particularly dangerous is the permission structure is allows for more brazen manifestations of this discriminatory posture.

Trump says the quiet part out loud when he refers to ‘Third World’ countries as ‘Shithole countries’ and ‘garbage countries’. It is a continuation of the mentality which precipitated older and more recent subjugations, from slavery to colonialism and Adolf Hitler’s Nazism.

There is, after all, a straight line between the idea of ‘manifest destiny’ which triggered expansion over Native American land in the present-day United States, to the notion of ‘lebensraum’ which was core to Hitler’s expansion policies – the belief that the ‘Aryan race’, being ‘superior’, was deserving of more ‘living space’ than others.

At the same time, there is a lesson here for Africa, and Uganda. The sooner we get our act together, the better. In Trump’s malice lies a much-needed wake-up call. Unfortunately, his reference to countries in which people are ‘just running around trying to kill each other’, rings true for Uganda, where the value of human life seems to diminish with each passing day.

If the Ugandan government displays such scant regard for the lives of its people (as the number of Ugandan citizens routinely and casually killed, especially in electoral cycles, demonstrates) why should the Ugandan State expect Trump, or indeed any other foreign leader, to value or respect Ugandan citizens?

We can demand de jure respect under the international order. However, until we arrange our national affairs, the de facto position might remain that reflected in Trump’s animus.

Sadly, if this persists, and under the right conditions, this disdain might, once again, be reflected in a reversal to an international order which looks more like the General Act of the Berlin Conference of 1885, than the United Nations Charter of 1945.

The writer is Senior Lecturer and Director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and International Law.