Somalia–A Very Special Case

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Somalia–A Very Special Case

in Max Planck Yearbook of United Nations Law Online

References

  • 1 B. Turner (ed.), T'he Statesman's Yearbook, 2003, 1431; CIA - The World Factbook - Somalia available at: ; Foreign and Commonwealth Office Country Profiles, Somalia, available at: ; see also in this respect A. Yusuf, "Government Collapse and State Continuity: The Case of Somalia", Italian Yearbook of International Law XIII (2003), 11 et seq. 2 Foreign and Commonwealth Office, see note 1. Somaliland indicated that it would be prepared to discuss relations with Somalia on a basis of equality the moment a new government is established in Mogadishu.

  • 3 I.M. Lewis, A Modern History of the Somali, 4th edition, 2002, 1 et seq. 4 Department of Public Information, The United Nations and Somalia, 1992-1996, 1996, 9. 5 H.D. Nelson, Somalia-A Country Study, 1981, 5 et seq.; Lewis, see note 3, 18 et seq. 6 Lewis, see note 3, 40 et seq.; cf. also . Also France began to display interest in the Red Sea Coast. Djibouti became a French colony. See in this respect the Anglo-French agreement of 1888 which defined the boundaries between Zeila and Djibouti. 7 Nelson, see note 5, 14; Lewis, see note 3, 41 et seq., 50 et seq.; for the Ital- ian rule see in particular, Chapter V, ibid. Page 101 et seq. gives also an overview over the development within the British part. 8 D. Rauschning, "Art. 77", in: B. Simma, The Charter of the United Na- tions. A Commentary, 2nd edition, Vol. II, 2002, MN 13.

  • 9 Cf. article 23 of the 1947 Peace Treaty (Trattato di Pace del 10 Febbraio 1947) Part II Section IV), UNTS Vol. 49 No. 747, see in particular Annex XI which refereed the question to the United Nations for consideration. 10 A/RES/289 (IV) of 21 November 1949. The Trusteeship Agreement was adopted by A/RES/442 (V) of 2 December 1950. 11 See the Trusteeship Agreement UNTS Vol. 118 No. 381 which comprises altogether 25 articles and an Annex headed "Declaration of Constitutional Principles", here in particular article 3 for economic and social advance- ment as well as the development of political institutions. Furthermore arts 4 (education) and 14 (economic and social advancement of the indigenous population); Nelson, see note 5, 29. On Trusteeship see further N. Matz, in this Volume. 12 Nelson, see note 5, 34; Foreign and Commonwealth Office, see note 1.

  • 13 U.S. Department of State, Bureau of African Affairs, January 2005. 14 Nelson, see note 5, 35. 15 This Commission later on (1964) was succeeded by the Consultative Com- mission for Legislation, which was composed solely of Somalis. 16 It is interesting to note that Italy's sponsorship enabled Somalia to become an associate of the European Economic Community, which assured it a preferential status in West European markets, Lewis, see note 3, 165. 17 Nelson, see note 5, 41.

  • 18 Nelson, see note 5, 51 et seq.; Foreign and Commonwealth Office, see note 1; It was never proved by the way that the Soviet Union was responsible for the coup, but the Western world wanted to stick to that view. 19 A.I. Samatar, Socialist Somalia-Rhetoric and Reality, 1988, 85; M. Hohne, Somalia zwischen Krieg und Frieden, Institut fur Afrika Kunde, Bd.113, 2002, 40; Lewis, see note 3, 209 et seq. At the time of the coup the UN had listed Somalia in the special category of least developed countries. It was one of the world's 10 poorest countries. 20 Nelson, see note 5, 47; Samatar, see note 19, 113; Lewis, see note 3, 207. 21 Nelson, see note 5; Samatar, see note 19, 86. 22 Nelson, see note 5, 47. 23 Samartar, see note 19, 86.

  • 24 Department of Public Information, The Blue Helmets, 3rd edition, 1996, 287; Nelson, see note 5; S.M. Makinda, Seeking Peace from Chaos: Hu- manitarian Intervention in Somalia, 1993, 58; Lewis, see note 3, 231 et seq. 25 He later died in exile in Nigeria. 26 Makinda, see note 24, 31; T. Debiel, UN-Friedensoperationen in Afrika, 2003, 136; Lewis, see note 3, 264; The United Nations and Somalia, see note 4, 12. 27 In early 1993 efforts were reportedly made to retrain some former mem- bers of the police force that the Germans had begun training in 1978, cf. Makinda, see note 24, 30; The United Nations and Somalia, see note 4, 59. Cf. also under II. 4. a, note 96. 28 Djibouti, Egypt, Italy, and Saudi Arabia.

  • 29 Makinda, see note 24, 32, 33. 30 1. Ahmed/ R. Green, "The Heritage of War and State Collapse in Somalia and Somaliland: Local-level Effects, External Interventions and Recon- struction", Third World Quarterly 20 (1999), 113 et seq. (121). 31 Department of Public Information, see note 24, 288. 32 S.D. Murhpy, "Nation-Building: A Look at Somalia", Tul. J. Int'l fr Comp. L. 19 (1995), 19 et seq. (23); The United Nations and Somalia, see note 4, 13-15. 33 The International Committee of the Red Cross, Save the Children, World Vision, and Oxfam as well as UNICEF were still in the country - to name a few.

  • 34 Makinda, see note 24, 42. The WFP had predicted the famine as early as 1990. 3s Kofi Annan used this expression in his key note address, cf. K. Annan, "Peace-Keeping in Situations of Civil War", N. Y. U.J. Int'l L.& Pol. 26 (1994), 623 et seq. (624). A good example for the importance of this "fac- tor" is the recent hunger crisis in Niger were 2.5 million people are in need of food aid. The Under-Secretary-General for Humanitarian Affairs called this crisis in July 2005 the '`number one forgotten and neglected emergency in the world". WHO had already at the end of 2004 asked for supplies for this region. But the tsunami in 2004 and its consequences was the impor- tant headline at that time. 36 See preamble of S/RES/733 (1992) of 23 January 1992. Here the several un- successful appeals of the regional organizations are mentioned.

  • 3� The United Nations and Somalia, see note 4, 17. 38 The Council had received from the Permanent Mission of Somalia in New York a letter which transmitted communications from the country's In- terim Prime Minister Omer Arteh Ghalib. He asked that the question of the situation in Somalia be included in the agenda of the Council and au- thorized the Permanent Mission to present to the Council the deteriorating situation in Somalia, particularly the fighting in Mogadishu, and hoped that the Council "will come up with a programme of effective action to end the fighting and contribute to cementing peace and stability in the country," Doc. S/23445 of 20 January 1992. 39 This reference later on proved to be problematic - as the Security Council gave the impression that Somalia as such had made the request, but in fact Mahdi's government was not universally recognized, see above note 28, and the Aidid faction later on blamed the UN for having been biased from the beginning. Furthermore, the acting Secretary-General Boutros Boutros-Ghali had been minister for external affairs before becoming Sec- retary-General, and Egypt had had very close relations with the Barre re- gime. All this complicated the situation later on.

  • ao S/RES/161 (1961) of 21 February 1961. al S/RES/733 (1992) of 23 January 1992, operative para. 5. Although the Council later on set up a Committee of the Whole in order to monitor im- plementation of the arms embargo (the sanctions are still in place even in 2005) the flow of weapons into Somalia has still not stopped today. 42 Madhi had unsuccessfully asked for a peace-keeping force to implement the agreement. Aidid just had agreed to a UN security component for humani- tarian aid, cf. Department of Public Information, see note 24, 289. a3 S/RES/746 (1992) of 17 March 1992.

  • aa S/RES/751 (1992) of 24 April 1992. as The observers were provided by Austria, Bangladesh, Czechoslovakia, Egypt, Fiji, Finland, Indonesia, Jordan, Morocco, Pakistan and Zimbabwe. 46 The United Nations and Somalia, see note 4, 20. 47 See in this respect S/RES/767 (1992) of 24 July 1992. It is remarkable in this respect that the Secretary-General stated: " I am aware of the very delicate question of the secession proclamation in the north ... The deployment of UNOSOM to the north would not prejudice in any way the decision of the Somali people on their national future", cited in: H.M. Adam, Forma- tion and Recognition of New Sates: Somaliland in Contrast to Eritrea- available at: again a clear

  • sign that the United Nations did not in any way wanted to influence or get involved in this recognition conflict. 48 His specific approach in order to settle the dispute between the rival fac- tions will be discussed later on- see note 114, below. 49 The United Nations and Somalia, see note 4, 21. 50 S/RES/775 (1992) of 28 August 1992. 51 Department of Public Information, see note 24, 317. 52 Doc. S/23829 of 21 April 1992, 7. s3 The Program had the following main objectives: massive infusion of food aid, aggressive expansion of supplementary feeding, provision of basic health services, urgent provision of clean water, sanitation and hygiene, provision of shelter materials, prevention of further refugee outflows, building institutions and civil society rehabilitation and recovery. Of the requested US$ 82.7 million 67.3 million were received.

  • sa Cf. Doc. A/47/553 of 22 October 1992; Department of Public Information, see note 24, 293. ss The United Nations and Somalia, see note 4, 24. 56 Ibid.; cf. also C. Gray, International Law and the Use of Force, 2004, 222.

  • 57 Gray, see above, 210. For an good overview of the development of peace- keeping see D. Banerjee, "Current Trends in UN Peacekeeping: A Perspec- tive from Asia", International Peacekeeping 12 (2005), 15 et seq. 58 Report of the Secretary-General, An Agenda for Peace, Preventive Diplo- macy, Peacemaking and Peace-keeping, Doc. A/47/277-S/24111 of 17 June 1992. s9 Supplement to An Agenda for Peace: Position Paper of the Secretary- General on the Occasion of the Fiftieth Anniversary of the United Nations, Doc. A/50/60-S/1995/1 of 3 January 1995. The Supplement was more real- istic about the challenges posed by complex emergencies and further ac- knowledged the threats faced by such undertakings.

  • 60 See in this respect, Certain Expenses of the United Nations case, ICJ Re- ports 1962, 151 et seq. 61 See at note 42. 62 An incident in 1992, when an airplane chartered by WFP transported with- out the knowledge of the UN, ammunition and money for the Mahdi fac- tion, seemed to prove this perception. 63 See the Statement of the Secretary-General in this respect, Doc. S/24859 of 27 November 1992. 64 Preamble para. 3.

  • 65 Operative para. 10. 66 The Secretary-General was asked to establish a Fund (operative para. 11). By mid January 1993 Denmark, Finland, Ireland, Japan, Norway, the Phil- ippines, the Republic of Korea, Saudi Arabia and Singapore had altogether allocated US$ 114,215,000. Altogether the Fund raised 335,268,591 US$, cf. Makinda, see note 24, 44. 67 Operative para. 6.

  • 68 Arts 42, 48 or 51 of the Charter are discussed. This is not the place to elaborate on this question any further, see in this respect D. Saroohshi, The United Nations and the Development of Collective Security, 1999. 69 The United Nations and Somalia, see note 4, 33. 70 "Our Mission is humanitarian, but we will not tolerate armed gangs rip- ping off their own people, condemning them to starvation ... ", G. Bush, "Humanitarian Mission to Somalia: Address to the Nation", Washington DC, 4 December 1992, US Department of State Dispatch Vol. 3, No. 49, 7 December 1992. 71 The United Nations and Somalia, see note 4, 33; W Clark/ J. Herbst, "So- malia and the Future of Humanitarian Intervention", Foreign Aff. 75 (1996), 70 et seq. (75); Lewis, see note 3, 268. 72 In addition to the United States forces, UNITAF included military units from Australia, Belgium, Botswana, Canada, Egypt, France, Germany, Greece, India, Italy, Kuwait, Morocco, New Zealand, Nigeria, Norway, Pakistan, Saudi Arabia, Sweden, Tunisia, Turkey, United Arab Emirates, United Kingdom and Zimbabwe; cf. also Murphy, see note 32, 27.

  • 73 See note 66. �4 With an annual expenditure of US$ 1.5 billion the intervention was the most expensive humanitarian operation ever undertaken so far, cf. Ah- med/Green see note 30, 122. 75 Department of Public Information, see note 24, 295. 76 See on the incompatibility of peace-keeping and enforcement forces, Gray, see note 56, 226 et seq. 77 Clark/ Herbst, see note 71, 75; Makinda, see note 24, 71; Murphy, see note 32, 27; R. Murphy, "United Nations Peacekeeping in Lebanon and Somalia, and the Use of Force", Journal of Conflict and Security Law 8 (2003), 71 et seq. (75). It is interesting to note that the Australian compound was much

  • more successful in this respect. They established a weapons registration system and adopted a policy of confiscating and destroying all unauthor- ized weapons, see M. Mersiades, "Peacekeeping and Legitimacy: Lessons from Cambodia and Somalia", International Peacekeeping 12 (2005), 205 et seq. (214). 78 Doc. S/25354 of 3 March 1993. 79 Ibid., paras 6 and 19 et seq. 80 Ibid., para. 43. 81 Ibid., para. 58.

  • 82 Ibid., para. 57. 83 Ibid., para. 91. 84 Ibid., para. 79. As to the costs for such an operation see Doc. S/25354/Add. 1 and 2 of 11 March and 22 March 1993. 85 Part B, operative paras 5 and 6. 86 See in this respect under II. 4. a. below. 87 Part B ibid., operative para. 13.

  • 88 Clark/ Herbst, see note 71, 73. 89 See in this respect under II. 4. a. below. 90 Clark/ Herbst, see note 71, 73; Department of Public Information, see note 24, 301.; J.T. O'Neill/ N. Rees, "UNOSOM and Somalia", in: id., (eds), United Nations Peacekeeping in the Post-Cold War Era, 2005, 107 et seq. (127 et seq.)

  • 91 lVlurphy, see note 32, 29. 92 Doc. S/24992 of 19 December 1992. 93 As to a list of the movements, see Doc. S/25168 of 26 January 1993. 94 Disarmament and security, rehabilitation and reconstruction, restoration of property, settlement of disputes and transitional mechanisms.

  • 95 18 Regional Councils, one in every region with three representatives from each district council. For the 92 District Councils members had to be ap- pointed through election or through consensus based selection in accor- dance with Somali traditions. See for further details, Department of Public Information, see note 24, 299. It is interesting to note that already here in respect of the Council and the Committee a concept was thought of which later on was used in Afghanistan and Iraq, in order to rebuild national au- thorities, cf. the respective contributions in this Volume. 96 The United Nations and Somalia, see note 4, 48, 58-60. 9� The United Nations and Somalia, see note 4, 47.

  • 98 Operative para. 1. 99 Operative para. 6. ioo 25,000 US$ bounty was warranted for Aidid's head by the Special Repre- sentative of the Secretary-General, cf. N. Rezwanian-Amiri, Gescheiterter Staat-Gescheiterte Intervention?, 2000, 203; Murphy, see note 32, 30. In November 1993 the Security Council established a Commission of Inquiry, cf. S/RES/885 (1993) of 16 November 1993, and suspended its order au- thorizing the arrest of Aidid.

  • tot S/RES/878 (1993) of 29 October 1993. to2 Department of Public Information, see note 24, 302. 103 S/RES/886 (1993) 18 November 1993. 104 Doc. S/1994/12 of 6 January 1994. 105 Ibid., para. 31.

  • lob Ibid., para. 6 et seq. 107 Ibid., para. 49. 108 As to the right of a democratic governance see M. Benzing, in this Volume. 109 The United Nations and Somalia, see note 4, 60

  • 110 Doc. S/1994/614 of 24 May 1994, Annex I. 111 Concerning the conflict in Kismayo, there an agreement was signed on 19 June 1994. It was a nine point agreement including a general ceasefire, for further details see, Department of Public Information, see note 24, 309.

  • tt2 Preamble. 113 The force strength stood at 18,790 at that time. 114 Mohamed Sahnoun, see note 48, had already tried a `'strategy of putting the clan system to work for Somalia." He wanted to use the traditional au- thorities in order to legitimize factional leaders and to reach a minimum of stability. But he had not succeeded as the opposition from the Secretariat at

  • this time was too strong. Cf. M. Sahnoun, Somalia-The Missed Opportuni- ties, United States Institute of Peace, 1994. 115 Department of Public Information, see note 24, 310. 116 The tactic concerning this meeting was different from the others so far, as separate meetings were arranged between the several clans and sub-clans before proceeding to an overall session. 117 Doc. S/1994/977 of 17 August 1994.

  • �18 Doc. S/1994/1166 of 14 October 1994. 119 See message conveyed to the Somali faction leaders Doc. S/ 1245 of 3 No- vember 1994. 120 S/RES/953 (1994) of 31 October 1994.

  • 121 For this and the forgoing, Department of Public Information, see note 24, 315. 122 Department of Public Information, see note 24, 314.

  • 1z3 Doc. S/PV 3447of 4 November 1994. 1z4 Cf. Report of the Secretary-General Doc. A/50/447 of 19 September 1995. 125 My colleague Dr. M. Bockenforde will give an extensive overview of the developments after 1995 up to the present situation including the ongoing peace process in the next Volume of the Max Planck Yearbook of United Nations Law. 126 The Security Council send a mission of Inquiry pursuant to its resolution S/RES/885 (1993) of 16 November 1993. The Commission conducted its work from November 1993 until January 1994 and, thereafter, proposed recommendations. There were apart from this a variety of different under- takings in this respect later on, cf. The Comprehensive Report on Lessons

  • Learned from United Nations Operation in Somalia (UNOSOM), April 1992-March 1995.

  • 127 See Comprehensive Report, see note 126, paras 14, 90, 91. 128 0'neigh/ Rees, see note 90, 131, 132. 129 Annan, see note 35, 628.

  • 130 This is clearly outlined in the Comprehensive Report, see note 126. How difficult it is to rebuild relevant factors e.g. a functioning police force can be seen in Iraq. Here a recent U.S. report revealed that Iraq's police force suffered from inadequate recruiting and screening of candidates, apparently even allowing some insurgents to join, New York Times of 26 July 2005. 131 See note 46. 132 Comprehensive Report, see note 126.

  • 133 See in this respect E. Afsah/ A.H. Guhr, in this Volume. 134 It is reported that clan elders even walked long distances to report to the Australian compound of UNITAF about weapons hidden in the country side, which they wanted to be destroyed. A clear sign that the local clan elders as such were willing to work towards a restoration for peace and in this respect co-operating with the international community, cf. Mersiades, see note 77, 216. 135 The Comprehensive Report, see note 126, para. 36

  • 136 Doc. A/59/565 para. 261 et seq. This proposal was accepted by the Secre- tary-General in his Report In Lager Freedom: Towards Development, Se- curity and Human Rigbts for All (Doc.A/59/2005 of 21 March 2005, 31), which will be discussed throughout the historic Summit in September 2005. 13� Report of the Panel on United Nations Peace Operations, Doc. A/55/305- S/2000/809 of 21 August 2000. 138 UN News Centre, UN News Service of 7 March 2005, "Security Council notes need to expand UN presence in Somalia''.

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