Ethiopia's armed intervention in Somalia: the legality of self-defense in response to the threat of terrorism.

• Author: Allo, Awol K.

Whereas there are debates among some academic circles that the events of 9/11 have constituted a change in the law of self-defense, this article argues against the possibility, even of the desirability, of such an assertion. By situating the law of self-defense in the context of 'terrorism' and the threat thereof, this article argues that Ethiopia's claim for a lawful exercise of its right to self-defense falls short of the requirements of the law even if Ethiopia was neither questioned nor condemned by the United Nations Security Council or the African Union.

1. INTRODUCTION

   "The Ethiopian government has taken self-defensive measures and started counterattacking the aggressive forces of the Islamic Courts and foreign terrorist groups" (1)--was how the Ethiopian Prime Minister declared the official start of the war between Ethiopia and the Union of Islamic Courts (hereinafter the UIC) on the night of December 24, 2006. In this sentence, the Prime Minister singled out two of the four grounds Ethiopia presented as justifying its inherent fight to individual and collective self-defense--aggression and the threat of terrorism. (2)

   Against the backdrop of evolving debates on the adequacy of the rules of international law governing the use of force and self-defense, this article seeks to enquire whether these changes represent a change in the law culminating from the necessary state practice and opinion juris or simply a change in the fact that does not constitute a new rule of self-defense.

   Drawing on governmental statements, policy papers, official correspondences, and newspaper articles for facts and allegations, this article strives to make a conceptual analysis of whether the facts on the ground met the standards of the UN Charter or customary international law when Ethiopia triggered its right to self-defense. Apart from self-defense, Ethiopia claimed that its intervention is allowed by the invitation of the "internationally recognized government of Somalia." (3) This author has examined the validity of Ethiopia's claim to lawful invitation somewhere else. This article examines the consistency of Ethiopia's claim to the exercise of its "individual and collective self-defense" with contemporary norms of international law governing the use of force. Within that frame, the article seeks to reflect on the failed state scenario of Somalia and the silence of the international community (UN, AU, EU, individual states) in the face of Ethiopia's intervention and what that silence says about Ethiopia's action in particular and the evolution of the law of self-defense in general.

2. ETHIOPIA'S MILITARY INTERVENTION IN SOMALIA: COLLECTIVE SELF-DEFENSE

   The United Nations Charter outlaws all aspects of coercive use of force between sovereign nations while delineating a carefully crafted exception consistent with its prime purpose of maintaining international peace and security. (4) Most experts on the use of force agree on the Charter's two known exceptions to the general prohibition set forth under Article 2(4). (5) While the first of these exceptions pertains to the right of "individual and collective self-defen[s]e" enunciated under Article 51 of the Charter (6), the second exception relates to the use of force by the Security Council in response to a "threat to the peace, breach of the peace, or an act of aggression" under Chapter VII of the Charter. (7)

   Ethiopia justified its military intervention in Somalia as a lawful exercise of its "inherent right of individual or collective self-defen[s]e" embodied under Article 51 of the UN Charter. (8) Article 51 of the Charter in part reads: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defen[s]e if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security." (9)

   The reference to the term "inherent" is said to have reaffirmed the natural right of a State under customary international law to defend itself from an armed attack (10) through the use of force. However, although collective self-defense was not understood to be as "inherent" as a matter of international law at the time the UN Charter was adopted, the International Court of Justice (ICJ or the Court) in Nicaragua reaffirmed the "inherent" nature of both variants of self-defense--the right to individual and collective self-defense. (11) In relevant part, the Court stated, "the language of Article 51 of the United Nations Charter, the inherent right ("droit naturel") which any State possesses in the event of an armed attack, covers both collective and individual self-defen[s]e." (12)

   Following the adoption of the Charter, many States resorted to international and regional security schemes under a covenant and accordingly agreed to regard an attack against one as an attack against all. (13) In Nicaragua, the ICJ set forth the cardinal rule for the exercise of the right to collective self-defense in the absence of a prior treaty agreement. (14) Denying the contention of the United States for the existence of a lawful ground for collective self-defense, the Court outlined the essential requirements for the exercise of lawful collective self-defense under the Charter and customary international law. (15) In order for collective self-defense to be valid under international law, the Court held that there should be a declaration by the victim state "which must form and declare the view that it has been so attacked," (16) followed by a subsequent request by that "victim of an armed attack" (17) to another State for help.

   According to the judgment in Nicaragua, the Court further emphasized the existence of the requirement of an armed attack against the victim State. These requirements are similar to those needed for individual self-defense when a third State exercises a collective right to self-defense on behalf of the victim State. The Court made the observation that:

   Thus, the lawfulness of the use of force by a State in response to a wrongful act of which it has not itself been the victim is not admitted when this wrongful act is not an armed attack. In the view of the Court, under international law in force today--whether customary international law or that of the United Nations system--States do not have a right of 'collective' armed response to acts which do not constitute an 'armed attack.' (18) Ethiopia and Somalia were not parties to any prior bilateral or multilateral treaty arrangements that called for a collective security scheme comparable to those of NATO, the now defunct Warsaw Pact, or Inter-American Pacts governing collective self-defense arrangements examined in Nicaragua. (19) For the same reason, Ethiopia cannot justify an attack against Somalia's Transitional Federal Government (hereinafter the TFG) through a collective right to self-defense as an attack against itself to resort to the use of force against other forces within Somalia in the absence of a prior treaty arrangement. Further, even if such a treaty arrangement existed, Ethiopia could not have acted in lawful collective self-defense against the Islamic Courts in a manner consistent with the UN Charter insofar as attacks emanating from within Somalia are concerned. Such conduct would constitute an intervention into the domestic affairs of the State and does not seem to be consistent with the stipulation of the Charter. (20) If Somalia had been under an "armed attack" from another sovereign State, declared that it was a subject of an armed attack, and accordingly solicited Ethiopia's assistance, Ethiopia could have lawfully acted pursuant to the request, in light of the Court's guidance in Nicaragua. (21) However, although other States provided military and other assistance to the UIC, (22) which could have probably amounted to intervention under Article 2(7) of the Charter, such conduct cannot, of itself, justify a self-defensive response since such assistance does not constitute an "armed attack" by the other assisting States. As the ICJ reiterated in Nicaragua, assistance to rebel groups does not constitute an "armed attack" by the State from which the rebel groups received support or the State whose territory the rebels used, and hence, cannot justify collective self-defense under Article 51 of the Charter. (23)

   Following the attack on 9/11, NATO did not require the involvement of a State to justify its collective-self-defense in Afghanistan. Rather it agreed that "if it is determined that this attack was directed from abroad against the United States, it shall be regarded as an action covered by Article 5 of the Washington Treaty." (24) The extent of the legality of NATO's action is subject to the Washington Treaty. (25) Further, the fight to self-defensive measures by the victim State of 9/11 was affirmed by the UN Security Council. (26) There are three reasons which provided the gloss of legality to NATO's intervention in Afghanistan, all of which are not present in Ethiopia's case. Firstly, the Washington Treaty governed the condition for NATO's intervention while there is no such treaty between Ethiopia and Somalia. Secondly, there is a Security Council authorization in the case of the Afghan intervention while there is none in Ethiopia's case. Finally, the attack against the Somali government comes from within Somalia itself, not "directed" from abroad as is the case with NATO's intervention, weakening Ethiopia's ease for collective self-defense.

   Writing on the controversial fight to pre-emptive self-defense in the wake of 9/11, Professor Mary Ellen O'Connell makes a compelling appraisal of the ICJ decision in Nicaragua. (27) Relying on the ICJ's pronouncement that the supply of weapons by Nicaragua to El Salvadoran rebels did not amount to an armed attack, Professor O'Connell insists on seeking the authorization of the Security Council to lawfully exercise the right to...