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II. Ethiopia's Military Action Against the Union of Islamic Courts and Others in Somalia: Some Legal Implications

Published online by Cambridge University Press:  17 January 2008


Somalia has been without government since 1991. A transitional government was established in 2004 under the presidency of Abdullahi Yusuf, with the backing of the United Nations, the African Union (AU), the Arab League and the Inter-governmental Agency for Development (IGAD). The Government sat in Baidoa in southern Somalia from June 2005 until December 2006. In June 2006 the Union of Islamic Courts (UIC) took control of much of southern and central Somalia, including the capital, Mogadishu, but not Puntland and Somaliland. They declared and tried to establish an Islamic State. Somalis were told to comply with stringent Islamic rules or face harsh punishment. In the meantime, efforts to achieve national reconciliation were ongoing under the auspices of IGAD, though without much success. It was reported that on 20 July 2006 Ethiopian troops crossed into Somalia. Ethiopia only admitted to having military trainers to help the Somali Government (estimated to be 400 military personnel). On 21 July, the UIC declared a ‘holy war’ against Ethiopia. In September 2006 the Somali interim President survived an assassination attempt in Baidoa. On 25 October 2006 Ethiopia said that it was ‘technically at war’ with the Islamic Courts. After few days the UIC claimed to have ambushed and killed Ethiopian troops near the Ethiopian border.1

Current Developments: Public International Law
Copyright © British Institute of International and Comparative Law 2007

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1 ‘Timeline Ethiopia-Somalia’, BBC News (1 01 2007) at <>>Google Scholar; UN Security-Council Resolution 1724/2006 (29 11 2006)Google Scholar; on the nature of the UIC see, eg, Ryu, A, ‘Former Members of Radical Somali Group Give Details of Their Group’ VoA (6 01 2007).Google Scholar Shabbab (a radical Muslim group secretly established by UIC leaders) members disclosed that the purpose of their organization was to fight the enemies of Islam; they were given ‘detailed instructions on how to make roadside bombs, car bombs, and suicide vests, using explosives material cannibalized from various weapon systems’.

2 ‘Security Council Approves African Protection Force in Somalia’ UN News Service (6 12 2006); Security Council Resolution 1725/2006.Google Scholar

3 PM Zenawi of Ethiopia, Press Conference (n 28).

4 Dahir, NF, ‘Somalia: victory near at militants hideout’ The Associated Press (8 01 2007)Google Scholar; ‘By Dawn the Islamists were Gone’ The Economist (4 01 2007).Google Scholar

5 ‘Al-Qaeda call for Somalia JihadBBC News (5 01 2007).Google Scholar

6 ‘US Strike Targets Al-Queda in Somalia’ The Associated Press (8 01 2006)Google Scholar; see also ‘Securing Somalia’ The Washington Times (7 01 2007)Google Scholar; ‘Kenya Hands Over 40 Islamists to Somali Government’ WIC (21 01 2007).Google Scholar

7 ‘US Strike Targets Al-Queda in Somalia’ ibid.

8 See Arab League's statement (n 39).

9 ‘Minister says Ethiopia Concludes Operation against Terrorists Efficiently, Effectively’ Ethiopian News Agency (9 01 2007)Google Scholar; ‘Ethiopia Pulls Troops out of Southern Somalia’ Sudan Tribune (18 01 2006).Google Scholar

10 Lynch, C, ‘UN Report Cites Outside Military Aid to Somalia's Islamic Forces’ Washington Post (15 11 2006) A13Google Scholar; see also ‘Who Supports Who’ BBC News (28 12 2006) at <>; for the involvement of foreign fighters and Ethiopian rebels see (n 17); see also UN Panel Report (n 50).;+for+the+involvement+of+foreign+fighters+and+Ethiopian+rebels+see+(n+17);+see+also+UN+Panel+Report+(n+50).>Google Scholar

11 See (n 23).

12 See eg Cassese, A, International Law (2nd edn, OUP, Oxford, 2005) 368–71.Google Scholar

13 ibid 370–1.

14 In Res 1744/2007 for instance the UN SC reiterated its support for the Federal Transitional Government of Somalia; for the AU's position see (n 32); the EU also supported the Federal Government since its inception, see < home_en.cfm?cid=so>.

15 For the facts see Shinn, D, ‘Stabilizing Somalia and Ethiopia's Role: Key Points’ (2 01 2007) at <>>Google Scholar; see also ‘SOMALIA: Ethiopian Troops Roll In’ (2006) 43 Africa Research Bulletin: Political, Social and Cultural Series (ARB-PSCS) 16723B16725AGoogle Scholar; see also ‘SOMALIA: Fight For The Capital’ (2006) 43 ARB-PSCS 16635A16636C.Google Scholar

16 See Brownlie, I, Principles of International Law (6th edn, OUP, Oxford, 2006) 708; see also Cassese (n 12) 368ff.Google Scholar

17 ‘Terrorists from Canada, UK, and Pakistan Captured in Somalia: Zenawi’ The Associated Press (9 01 2007)Google Scholar; see also Gettleman, J, ‘Eight Eritreans Captured Carrying Briefcases Packed with Cash’ New York Times (3 01 2007); see Ryu (n 1): ‘Hassan (former Shabbab member) says about 25 Arabs fought alongside him and other Shabbab members there’.Google Scholar

18 See eg Dinstein, Y, War, Aggression and Self-Defence (4th edn, CUP, Cambridge, 2005) 219–43, see in particular 204–5.CrossRefGoogle Scholar

19 See eg Brownlie, (n 16) 713–4Google Scholar; see also ibid 236–7.

20 See also for general statements SC Res 1189/1998, SC Res 1269/1999, SC Res 1377/2003; see eg the position of the GA, ‘Measures to Eliminate International Terrorism’, GA Res 57/27/2003, para 7; see also GA Res 54/109/2000, Annex. ‘International Convention for the Suppression of the Financing of Terrorism’, para 10; see eg the response of the Council to terrorist attacks in Istanbul of 15 and 20 Dec 2003, SC Res 1516/2003, para 2; see also Gray, C, The Use of Force in International Law (2nd edn, OUP, Oxford, 2004) 164–5.Google Scholar

21 Dinstein, (n 18) 237.Google Scholar

22 ‘Ethiopian parliament authorizes “all necessary” steps against Somalia's UIC’ People's Daily Online (30 12 2006) at <>, adopted by a 311 to 99 vote with 16 abstentions.,+adopted+by+a+311+to+99+vote+with+16+abstentions.>Google Scholar

23 Dawit, G, ‘A Critical and Timely Resolution to Defend our Sovereignty’ The Ethiopian Herald (3 12 2006).Google Scholar

24 ‘MP's View on Somalia’ The Ethiopian Reporter (3 12 2006).Google Scholar

25 Shinn (n 15).

26 McCrummen, S, ‘Many Ethiopians see PM's talk of war as ploy to tighten grip’ Washington Post (20 12 2006).Google Scholar

27 Shinn (n 15).

28 Gettleman, J, ‘Ethiopia Hits Somali Targets, Declaring War’ International Herald Tribune (24 12 2006).Google Scholar

30 UN Doc S/PV 5579 (6 12 2006) 2Google Scholar; the Special representative of the Secretary-General Mr Francuis Fall had also reported to the Council that Res 1725 was welcomed by the transitional Government but rejected by the UIC (UN Doc S/PV 5614 (26 12 2006) 1).Google Scholar

31 ‘UN Envoy Seeks Security Council Action for Somalia’ CNN News (27 12 2006) at <>..>Google Scholar

32 UN Doc S/PV 5633 (20 02 2007) 1 and 3.Google ScholarResolution 1744 (2007) was adopted unanimously.Google Scholar

33 ‘Ethiopia Urged to Leave Somalia’ BBC News (27 12 2006) at <>..>Google Scholar

34 ‘Press Statement on the Situation in Somalia African Union Peace and Security Council’ (8 01 2007, Addis Ababa, Ethiopia) at <>..>Google Scholar

35 ‘Humiliated Eritrea Blames U.S. for Somali War’ Afrol News (3 01 2007).Google Scholar

36 Talbot, A, ‘US Backs Ethiopia's Invasion of Somalia’ (28 12 2006) at <>>Google Scholar; see also Slavin, B, ‘U.S. Support Key to Ethiopia's Invasion’ USA Today (8 01 2007).Google Scholar

37 ‘U.S. strike targets al Qaeda in Somalia’ The Associated Press (8 01 2007).Google Scholar

38 A England, ‘Ethiopia ‘holding suspects’ after US Air Strike’ Financial Times (10 01 2007).Google Scholar

39 eg the Arab League criticized the US ‘claiming it had killed “many innocent victims” and demanding that Washington refrain from further attacks’, ibid; see also ‘Somali Elders Say about 100 Killed in US, Ethiopian Air Strikes’ ABC News Online (12 01 2007) at <>>Google Scholar; see also ‘EU criticizes alleged US airstrike in southern Somalia’ (9 01 2007) at <>, ‘the European Commission on Tuesday criticized the reported United States airstrike against a suspected alQaeda cell in southern Somalia, calling it counterproductive to peace efforts for the war-torn African country’. While there was a risk of foreign extremists operating from Somalia, ‘any incident of that kind is not helpful in the long-term’.,+‘the+European+Commission+on+Tuesday+criticized+the+reported+United+States+airstrike+against+a+suspected+alQaeda+cell+in+southern+Somalia,+calling+it+counterproductive+to+peace+efforts+for+the+war-torn+African+country’.+While+there+was+a+risk+of+foreign+extremists+operating+from+Somalia,+‘any+incident+of+that+kind+is+not+helpful+in+the+long-term’.>Google Scholar

40 Lord, Triesman, ‘Int'l community needs to understand why Ethiopia launches counterattacks on fundamentalists’ (8 01 2007) <>..>Google Scholar

41 GAK Alaghbari, ‘Threat not Ambition that Drives Ethiopia into War’ Ethiopian News Agency (17 01 2007).Google Scholar

42 Yusuf, AO, ‘Djibouti Urges Ethiopia to Pull Its Troops Out’ Shabelle Media Network (Mogadishu) NEWS (8 01 2007).Google Scholar

43 See, eg, SC Res 1725/2006.

44 See for the facts Shinn (n 15).

45 Dinstein (n 18) 205–6.Google Scholar It is noted that terrorist attacks ‘may amount to an armed attack within the meaning of Art. 51 of the UN Charter’, and the exercise of self-defence against such attacks ‘have to take place in the territory of a state where the attackers are headquartered or have taken refuge’; for detailed discussion on the terrorism versus the use of force see Cassese (n 12) 463–81.Google Scholar

46 See, eg, for general consideration of the requirements Dinstein, ibid 237.

47 See, eg, Shinn (n 15).

48 See, eg, Cassese, (n 12) 374.Google Scholar

49 ‘UN Report Says 10 Nations Violating Arms Embargo in Somalia, Potential High for War’ Associated Press (15 11 2006)Google Scholar; see also notes 10 & 17; see in particular Ryu (n 1), Abdi (Shabbab member) says ‘he and several hundred other standout students were flown to Eritrea and given an additional two-month advance training in explosives and guerrilla war fighting tactics’; he added that his instructors for making roadside bombs, car bombs, and suicide vests, etc ‘were a mix of Somali and Eritreans’.

50 UN Doc S/2006/913 (22 11 2006) para 32.Google Scholar

51 ibid para 39, clarification added.

52 ibid para 37.

53 ibid para 42.

54 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Merits) [1986] ICJ Rep 103.Google Scholar

55 ibid 65; yet the ICTY adopted a lower threshold for the element of ‘control’ in Prosecutor v Tadić Judgment, ICTY Case No IT–94–1–A, Appeals Chamber, 1999, 38, 1545.Google ScholarNow see Application of the Convention for the Prevention and Punishment of Genocide [2006] ICJ Rep, paras 396401, reaffirming the Nicaragua judgment (n 54).Google Scholar

56 (n 50) para 25; see also paras 43, 32 and 28 of the same Report; Sheikh Aweys was both the spiritual and operational leader of the UIC.

57 Ago, as quoted by Dinstein (n 18) 240, rightly underlined that: ‘it would be mistaken…to think that there must be proportionality between the conduct constituting the armed attack and the opposing conduct…What matters…is the result to be achieved by the “defensive” action, and not the forms, substance and strength of the action itself’.

58 See preambular paragraphs of the Resolution.

59 ibid opera paras 4 (a), (b), (c), (d), and (e).

60 ibid opera paras 6 (a) and (b).

61 ibid opera paras 6 and 7.

62 ibid opera para 8.

63 See (n 34); see also ‘AU Calls for Urgent Funding for Peace Mission’ The Ethiopian Herald (1 03 2007).Google Scholar

64 ‘First AU peacekeepers arrive in Mogadishu’ Reuters (6 03 2007).Google Scholar

65 ‘SOMALIA: A tortuous road ahead in search of peace’ IRIN (12 03 2007)Google Scholar, a government official confirmed that the remaining troops ‘will be out in a very short time’; ‘Somalia AU plane “catches fire”’ BBC News (9 03 2007)Google Scholar, eg ‘reports from Kismayo say some 2,000 Ethiopian soldiers withdrew from the port city on Thursday and were seen heading to Baidoa’; see also ‘Ethiopia Starts Somalia Pull-out, BBC News (23 01 2007).Google Scholar

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