Michael Mandel, professor of law at Osgoode Hall Law School in Toronto, who specializes in international criminal law, once wrote: “…Without the law, there is no limit to international violence but the power, ruthlessness and cunning of the perpetrators. Without the international legality of the UN system, the people of the world are sidelined in matters of our most vital interests…”
When the Security Council acts in accordance with Chapter VII of the Charter, it acts on behalf of the international community and the international community expects the Security Council to act in accordance with international law and the UN Charter.
Today, I want to address Security Council Resolution 1907 (2009) adopted on 23 December 2009. Through that resolution, the UN Security Council (UNSC) imposed an arms embargo on Eritrea for the ostensible purpose of promoting peace and security in the Horn of Africa region. How can a resolution that is itself a violation of international law and the UN Charter intend to bring peace, stability and security to the Horn region in general and Somalia in particular? The U.N. Charter provides that resolutions are only valid so long as they are consistent with "the principles of justice and international law."
On 23 December 2009, the US Ambassador to the United Nations, made these comments to the press after the Security Council adopted Resolution 1907:
“…I want to talk about the resolution we just adopted imposing sanctions on Eritrea. This was an African initiative. It was the consequence of a decision taken by the African Union… From the United States’ point of view, let me say that we have for many, many months sought a constructive dialogue with the government of Eritrea. We have sought to encourage quietly the government of Eritrea to take the steps that it claims it intends to take, but it will not take, and has not taken. And we still hope frankly that they will. We do not see this as the door closing on Eritrea, but on the contrary, we view this as another opportunity for Eritrea to play a more responsible and constructive role in the region. We did not come to this decision with any joy – or with anything other than a desire to support the stability of peace in the region…The United States stands with the people of Eritrea who have fought long and hard for their independence and to build a country in which we have great hope for the future…”
I believe the good Ambassador has it backwards; only the Security Council can determine if there is a threat to international peace and security. The African Union neither has the capacity or the integrity to make such determination and certainly not Ethiopia and its crime partners in the Horn.
It is indeed sad to see US policy for Africa and the UN Security Council reduced to the whims and dictates of petty dictators and genocidaires, abhorred by the people of the Horn region, for the international crimes, such as genocides, rapes, tortures, and extra judicial killings committed against their own populations and that of their neighbors. It is even sadder that Washington has chosen leaders such as Meles Zenawi, as its preferred allies, as if there were no other leaders in Africa with better records. Anyway, that is a subject for another day…today, the topic is the legality of Resolution 1907 (2009).
Allow me to address the good Ambassador’s comments and more, by highlighting the various UN Charter articles that Resolution 1907 violates, especially Article 39, which should render Resolution 1907 (2009) void ab initio…
Violation of Article 39- power of determination
The Security Council cannot delegate to Member States (or regional organizations) the competence to make either an Article 39 determination or a determination that such a situation has ceased to exist. The decision that a threat to, or breach of, international peace and security has occurred and then has ceased to exist, is the very raison d'être of Chapter VII: an Article 39 determination is the gateway to action under Chapter VII. UN member States delegated to the Council the competence to decide that a threat to, or breach of, the peace had occurred or that such a situation had ceased to exist on the condition that it would be the Council which is the only entity exercising this power.
Accordingly, application of the delegatus potest non delegare doctrine means the Council cannot delegate this power to any other entity. Moreover, the institutional safeguard of the veto that attaches to the Council's decision-making processes is an additional reason why the Council cannot delegate its Article 39 power of determination.
Furthermore, as the paper trails and the records show, despite what the US Ambassador to the United Nations claimed about Resolution 1907 (2009) being an “African Initiative”, it was in fact, a decision made by a handful of Africans, in violation of the African Union’s own rules which clearly state that:
“….Any Member of the Peace and Security Council which is party to a conflict or a situation under consideration by the Peace and Security Council shall not participate either in the discussion or in the decision making process relating to that conflict or situation. Such Member shall be invited to present its case to the Peace and Security Council as appropriate, and shall, thereafter, withdraw from the proceedings…”
Djibouti, Ethiopia, Kenya, Somalia and Uganda who are parties to the conflict in Somalia participated in the meetings and pushed the resolutions against Eritrea, the one nation that has no bone in this fight. These illegal meetings and decisions were orchestrated by Ethiopia who served as the Chair of the Peace and Security Council when the decision against Eritrea was made. Not surprisingly, it was also Ethiopia that Chaired the IGAD meeting when that entity decided to call for sanctions against Eritrea. Both regional organizations acted at the behest of the United States. I doubt that any UN member states or members of the African Union and IGAD would, under any circumstances, accept and agree to be subjected to such duplicitous processes.
Regardless of what these unscrupulous and embarrassing African leaders did to one of their own member states, the buck stops with the Security Council, which is the body of the UN that is mandated to make informed, prudent decisions about potential “threats to international peace”. The decisions must be able to withstand international legal and moral scrutiny. Unfortunately, the United States was able to run shod of the entire process once again, and get what it wants by employing its bullying tactics and broad day light extortion. This is neither the first nor is it going to be the last time that a small country will be punished for standing up to a larger, more powerful one, but if the Security Council continues to allow itself to be manhandled in this manner; it will soon make itself and the entire UN system irrelevant.
Violation of Article 33 and Article 95-Resolution of Disputes
On 12 June 2008, the US State Department issued a statement in which it “condemned Eritrea for military aggression”. Soon after, the Security Council followed with its own condemnation, without carrying out any investigation of the matter, or even trying to.
Through Resolution 1907 (2009)-the Security Council again overstepped its boundaries by forcing Eritrea to accept recommendations which violated Eritrea’s rights under the UN Charter which are enshrined in Article 33. It says:
"…The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice…"
In addition, Article 95 of the UN Charter says:
“…Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future…”
This paragraph contains an affirmation of the general principle laid down in the first paragraph of Article 33. The Members of the United Nations are at complete liberty to solve their disputes as they deem fit so long as they do so in a way that does not endanger the maintenance of international peace and security. The Djibouti-Eritrea situation has been diffused and contained because of Eritrea’s prudent decision to not allow a minor dispute to be unnecessarily escalated by meddlesome third parties. Despite the saber rattling and deliberate misinformation by certain quarters, Eritrea is not occupying a single inch of Djiboutian territory and the brotherly people of Djibouti and Eritrea will find mutually acceptable forums to iron out their problems, without resorting to the use of force.
Furthermore, in light of the Security Council’s 12 year long impotence and inability to enforce its own decisions and resolutions on the Eritrea-Ethiopia issue, its reluctance to enforce international law and the Eritrea Ethiopia Boundary Commission’s (EEBC) final and binding delimitation and demarcation decisions, the Council does not have the moral or legal high ground to force Eritrea to accept its recommendations, made in haste and without due deliberations and investigations.
Violation of the UN Charter on Self Determination
Eritrea’s is not obliged under the UN Charter or international law to “recognize the Transitional National Government of Somalia”. There is nothing in international law or the UN Charter that says Eritrea has to bless and “recognize” illegitimate governments, especially when they are not recognized by their own peoples. Self-determination constitutes a limit to SC Chapter VII action and implies that the Council does not have the power to impose or introduce under Chapter VII any particular form of government, rule or administration upon the entire or part of the population of any State against its people’s will.
It is a pity that the UN itself was engaged in the end of year decision to remove the Abdulahi Yusuf TNG and replace it with the Sheikh Sharif TNG, without the consent of the Somali people. How can the Security Council punish Eritrea for not bless an act which is a clear violation of the UN Charter and goes against the Somali peoples dreams and aspirations, and is a violation of the Somali peoples rights under the Charter.
Violation of Eritrea’s Right to Self Defense (Article 2 and Article 51)
The arms embargo violates Eritrea's inherent right to self-defense. The right to self-defense is one of the most basic rights of any state. In recognition of this, Articles 2 and 51 of the U.N. Charter codify that right and affirm that every state is entitled to use self-defense to protect its territorial integrity and political independence. When the Security Council acts on matters affecting peace and security, it must do so within the confines of both the U.N. Charter and the inherent rights of its member states. Thus Security Council resolutions may coexist with Eritrea's inherent right to self-defense, but they cannot abridge that right. By imposing an arms embargo on Eritrea and thereby preventing it from defending its territory and population from Ethiopia’s aggression and occupation, the Security Council has clearly acted beyond its authority.
The Security Council has failed for the last 12 years to take "effective action" to restore Eritrea’s sovereignty and territorial integrity. Eritrea is under direct military attack by groups sponsored by the minority regime in Ethiopia and also by the regime’s own forces who continue to occupy sovereign Eritrean territories. Although the Security Council has spilled much ink on the Eritrea-Ethiopia border issue and adopted over two dozen resolutions calling on Ethiopia to abide by its international obligations, Ethiopia continues to occupy sovereign Eritrean territories, including Badme. Admittedly, I am no legal scholar… far from it… but from where I sit, it seems to me that the act of denying Eritrea the right to self defense, the right to liberate its sovereign territories which remain under Ethiopian occupation, calls for the determination that the embargo is illegal, and exceeds the authority of the Security Council. Correct me if I am wrong.
Violation of Article 25
Members of the Security Council should not be allowed to willfully obstruct the work of the Council and powerful countries on the Council should not coerce countries into submitting either to its decisions taken in bad faith or to its demands negating the fundamental purposes and principles of the UN Charter, as Resolution 1907(2009) does. In the case of Eritrea and SC Resolution 1907 (2009) the Security Council acted outside the Charter, ultra vires, and states are not be obliged to abide by it. Article 25 obliges states to “carry out the decisions of the Security Council in accordance with the present Charter.”
The Security Council has also failed to show any evidence of Eritrea’s violation of the Somalia Arms Embargo and Ould Abdallah, the UN Special Envoy for Somalia has clearly stated that there is no evidence to support the allegations made against Eritrea. On the other hand, the Security Council and the US have ample evidence that show Ethiopia, Kenya, and Uganda as being the main suppliers of arms to Somalia. Allow me to present a 23 May 2008 Reuters report which sheds light on this issue. The Reuters report said:
“…South African Ambassador to the United Nations Dumisani Kumalo, chairman of the U.N. Security Council's Somalia sanctions committee, also reported to the 15-nation body that corruption in the lawless Horn of Africa country was rampant…Kumalo said the committee had received worrying reports that "elements" of the African Union peacekeeping mission in Somalia, known as AMISOM, and Somalia's Transitional Federal Government (TFG) were involved in arms trafficking activities, which have the potential to undermine the peace process…Some Ethiopians are also creating problems, he said…"Eighty percent of ammunition available at the Somali arms markets was supplied by TFG and Ethiopian troops," Kumalo said in the written text of his remarks to the Security Council. He said his committee viewed the "continued presence of Ethiopian troops on Somali territory as a violation of the arms embargo" on Somalia, where warlords, Islamist insurgents and Ethiopian-backed Somali government forces clash almost daily…The monitoring committee received details of some 25 military flights by Ethiopia into Somalia and knew that Ethiopian troops had brought military equipment into the country to arm "friendly clans," Kumalo said.
Arms and military hardware are mainly transported to Somalia by boat and airplane, but traffickers also use horses and donkeys, making shipments difficult to track, he said…”
The US-backed invasion and occupation of Somalia has resulted in the greatest humanitarian emergency in Somalia, has cost the lives of thousands of Somalis, has damaged Somali infrastructures such as schools, Mosques, bridges, hospitals and markets and Ethiopian and TNG forces have committed international crimes in Somalia. The mercenary minority regime in Ethiopia led by Meles Zenawi, emboldened by the diplomatic, financial and military shield and support it receives from its handlers, has flouted international law and the UN Charter. For its part, the Security Council, dominated by certain powers has proved, once again, that it is ineffective in matters of international peace, stability and security.
This is not the first time that the Security Council’s weaknesses are being exposed. In fact the United States had voiced its concerns about the power that some nations on the Security Council wield and use to advance their own interests. William W. Wade in his 1954 book "The UN" wrote about John Foster Dulles, the then US Secretary of State and his strong criticism of the UN and the powers that contributed to its weaknesses then. How hypocritical coming from a man who just a year before in 1952 used US powers and influence, to push through Resolution 390 (A) that forced the federation of Eritrea with Ethiopia against the wishes and aspirations of the people of Eritrea. In any case, here is an excerpt from that book and Dulles' concerns:
“…In his address to the American Bar Association Mr. Dulles singled out some "inadequacies" within the Charter of the UN, the principal one being "the inadequacy of an organization whose effective functioning depends upon cooperation with a nation which is dominated by an international party seeking world domination." As a diplomat he carefully avoided mention of the name Russia; otherwise he was forthright and realistic in recognizing and commenting on this UN weakness…The primary inadequacy that Secretary Dulles singled out has been and will continue to be the weightiest millstone around the UN's neck…The demonstrated willingness of Russia and its UN satellites to violate written agreements, sponsor aggression and wage war is living testimony to the UN's unsoundness…”
Today, the same can be said about US ally Ethiopia, which continues to violate international law, the UN charter and the Security Council’s own resolutions and decisions with impunity. Ethiopia gets away with it, because the US has effectively prevented the Security Council from taking any punitive actions against the belligerent regime that is responsible for the deaths and displacement of hundreds of thousands of people in the Horn region.
It is with an excerpt from a 21 September 1953 editorial from The Freeman, a weekly journal of politics and the arts, established in New York in the early 1920s, in which the writer shares his concerns about the United Nations, that I will end my piece and leave the readers to ponder and really think about the UN’s relevance today, and prospects for its future. What the writer wrote then still rings true today:
"…We have set up an organization for the alleged purpose of preventing war and aggression, and we have included in its inner command the power that is carrying on perpetual war and aggression. We have put the top criminal on the Police Commission…"
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