The Reporter (Addis Ababa)
Abeje Tesfaye
30 December 2006
opinion
In the last couple of weeks we have observed developments in Somalia and the impacts of the new Islamic leadership on regional peace and security in the Horn of Africa.
Political analysts and scholars argue that the emergence and taking over of political power by the Islamic leadership in Somalia will affect peace and stability in the sub-region as a whole and, in particular, relations with Ethiopia. I am writing this article in response to the recent speech of Prime Minster Meles Zenawi to Parliament over the development in Somalia and Ethiopia's legitimate right to take action in self-defense.
International law acknowledges the inherent right of states to take military action against another state if and only if it was made in self-defense or as part of humanitarian Intervention. If the military act was made with the clear objective of self-defense, it can be legitimate and qualify as part of Ethiopia's right to self-defence. Before analyzing the justification for self-defense, I would consider the motive for Ethiopia's action. As some say if the military action of Ethiopia is politically motivated and aimed at rescuing the weak Transitional Government in Bidoa and then creating a new political order, using the issue of a terrorists and anti-Ethiopian elements as an excuse, it will not be acceptable and that will further complicate things on the ground.
A military action by Ethiopia can be viewed as self-defense if it satisfies the following important international law provisions. First, for the act of Ethiopia to be considered as an inherent right of self-defense or humanitarian intervention, it has to be immediately reported to the Security Council and has to be supported by a resolution from the Security Council.
The Council has to exhaustively use all peaceful means to resolve the crisis in the region before moving to allow collective or unilateral use of force in Somalia. The Security Council has to recall the provisions of Article 39 of the Charter concerning measures to prevent armed conflicts. Such measures may include targeted sanctions, in particular arms embargoes and other enforcement measures on the Islamic Courts. In imposing such measures the Council has to pay special attention to their likely effectiveness in achieving clearly defined objectives, while avoiding negative humanitarian consequences as much as possible.
The Security Council responded to the situation in Somalia by adopting a resolution for peaceful settlement of disputes (chapter VI) and allowing IGAD member states to take collective/individual action to rescue the transitional government. Then it can be assumed that by default Ethiopia's action in Somalia will legally acceptable and would be legitimate for Ethiopia to take actions in self-defense.
Second, there must be an imminent threat for Ethiopia to act in self-defense and take action against Somalia. It has been indicated that on several occasions the Islamic leadership indicated their position on Ethiopia and launched a jihad on Ethiopia. There are a number of indications that the Courts is advocating a Jihad against Ethiopia and there is a point in such a case for Ethiopia to take a counter-attack. Ethiopia's action did not come as a revenge for the jihad by the Courts but the action was based on the existence of imminent threat from the Islamic Courts leaders on a sovereign state.
Third, the military action by Ethiopia does not necessarily mean that the Somalia's sovereignty is negated. It is the failure of the Transitional Government's responsibility to control the actions of the Islamic Jihadists in the territory that calls for intervention by Ethiopia. Even if the government of Somalia agreed to comply with its responsibilities, it does not have the capacity to do so. In such circumstances Ethiopia has a legitimate right to act in self-defense.
Besides, Ethiopia has regional and international responsibilities to the protection of human rights and realization of democratic leadership in the government in Somalia as stipulated in article 1(2) of the charter of the United Nations that respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.
As reported, a continues arms supply and training of the Islamic Courts by its allies like Eritrea and the rest is considered as the violation of article 2(4) of the United Nations Charter. The act constitutes breaching of the non-use of force in international relations of states but cannot be classified as an armed attack. In article 230 of the Nicaragua case, the international Court of Justice unable to consider that, in customary international law, the provision of arms to the opposition in another state constitutes an armed attack on that state. In the same line of argument, though the action by Eritrea and the rest constitutes use of force, it will not fit in to an armed attack on Ethiopia.
Fourth, the action of Ethiopia could qualify the test of proportionality and necessity. As observed in Nicaragua case, even if the supply of arms from Nicaragua to the opposition in El Salvador was armed attack measures taken against Nicaragua were not necessary as they were taken months after the offensive. There has to be necessity, instant, overwhelming, leaving no chose of means, and no moment for deliberation by Ethiopia to act in self-defense. The action of Ethiopia is not proportional to what the Eritrea and the rest did, by supporting the Islamic Courts. In the absence of proportionality and necessity element in Ethiopia's motive, the action will not be considered as self-defense. Rather it will get reprisal characteristics.
If the international community maintains a position of non-intervention in the affairs of Somalia, it unwittingly gives a vote for the continuation of humanitarian crisis, chaos, increase destabilization and an inevitable encouragement of terrorism. Therefore it is time for Somalia's genuine partners to become involved in the peace process, helping to overcome the Transitional Government and to forge a genuine government of national unity. If they fail to do so, the nation will gradually find growing purchase among Somalia's despairing and disaffected citizenry, and it will only be a matter of time before another group of militants succeeds in mounting a spectacular terrorist attack against foreign interests in Somalia or against anyone anywhere.
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