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ETHIOPIA'S ARMED INTERVENTION IN SOMALIA:

THE LEGALITY OF SELF-DEFENSE IN RESPONSE TO THE
THREAT OF TERRORISM
AWOL K. ALLO*

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 againstthe
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 UnitedNations Security Council or the African Union.
I. INTRODUCTION
"The Ethiopian government has taken self-defensive measures and started
counterattacking the aggressive forces of the Islamic Courts and foreign terrorist
groups"-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 right 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

* LL. B (Addis Ababa University), LL. M (Notre Dame Law School, IN, USA), PhD Candidate,
(Glasgow University Law School: UK); Lecturer in Law, St. Mary's University College, Faculty of
Law (Currently on Study Leave). I am extremely grateful to Professor Christian Tams who read the
manuscript and provided insightful comments. All the views, errors et al remains that of the author's.
1. Emmanuel Fanta, Analysis: Ethiopian Intervention in Somalia in Context, BLOGGER NEWS
NETWORK (Jan. 30, 2007), http://www.bloggemews.net/14238.
2. Ethiopia argued that four factors-a ) the destabilizing mission of the Eritrean government
from the north, b) the declaration of jihad by UIC against Ethiopia, c) the presence in Somalia of
Ethiopian insurgents which seek to overthrow the government of Ethiopia by force; and d) The
presence and continued influx of foreign terrorist groups with the view to advancing the extremist
agenda of the UIC-created a state of "clear and present danger" triggering its lawful right to self-
defense under international law. See infra note 142.

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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.
II. 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).' 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

3. See Awol Kassim Allo, Counter-Intervention,Invitation,Both or Neither? An Appraisalof the

2006 Ethiopian Military Intervention in Somalia, 3 MizAN L. REV. 201, 214 (2009) (discussing the
legality of Ethiopia's claim to lawful invitation).
4. See U.N. Charter pmbl., art. 1, 2.
5. See STANIMIR A. ALEXANDROV, SELF-DEFENSE AGAINST THE USE OF FORCE IN
INTERNATIONAL LAW 43-44 (1996); CHRISTINE GRAY, INTERNATIONAL LAW AND THE USE OF FORCE
59-60 (2d ed. 2004); HILAIRE McCOUBREY & NIGEL D. WHITE, INTERNATIONAL LAW AND ARMED
CONFLICT 30-35 (1992); MARY ELLEN O'CONNELL, THE MYTH OF PREEMPTIVE SELF-DEFENSE 3 (Am.
Soc'y of Int'l Law Task Force on Terrorism 2002), available at http://www.asil.org/
taskforce/oconnell.pdf; MALCOLM N. SHAW, INTERNATIONAL LAW 1123 (6th ed. 2008); THE CURRENT
LEGAL REGULATION OF THE USE OF FORCE 9-10 (A. Cassese ed., 1986).
6. U.N. Charter art. 51.
7. U.N. Charter art. 39; see also U.N. Charter art. 2, para. 4, arts. 40 - 42, 51; IAN BROWNLIE,
INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 275-78 (1963); O'CONNELL, supranote 5 at
3-4.
8. U.N. Charter art. 51; see also U.N. Sec. Council Comm., Rep. of the Monitoring Group on
Somaliapursuant to Sec. Council resolution 1724, 29, U.N. Doc. S/2007/436 (June 27, 2006).

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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
attack10 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 12
event of an armed attack, covers both
collective and individual self-defen[s]e.,
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 17
attacked," 16 followed by a subsequent request by that "victim of an armed attack"
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:

9. U.N. Charter art. 51.

10. Legal Consequences of the Construction of A Wall in the Occupied Palestinian Territory,
Advisory Opinion, 2004 I. C. J 136, 139 (July 9) [hereinafter PalestinianTerritory].
11. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14,
193 (June 27) [hereinafter Nicaragua];See also Legality of the Threat or Use of Nuclear Weapons,
Advisory Opinion, 1996 I.C.J. 244, 38-39, 96-97 (July 8 [hereinafter Nuclear Weapons].
12. Nicaragua, 1986 I.C.J. at 102, 193.
13. See Treaty of Friendship, Co-operation and Mutual Assistance, art. 4, May 14, 1955, 219
U.N.T.S. 3; Charter of the Organization of the American States, art. 5(f), Apr. 30, 1948, 2 I.L.M. 235,
119 U.N.T.S. 3; Inter-American Treaty of Reciprocal Assistance and Final Act of the Inter-American
Conference for the Maintenance of Continental Peace and Security, Sept. 2, 1947, Art. 3(1), 4 U.S.T.
559, 21 U.N.T.S. 77; SHAW, supranote 5, at 1290, 1137.
14. Nicaragua, 1986 I.C.J at 103-05, TT 193-99.
15. Id.
16. Id. T 195.
17. Id. T 199.

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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
18
attack.'
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

18. Id. 211.

19. Evidently, Somalia and Ethiopia were in a fathom of political and military confrontation until
the Seiad Barre regime collapsed, let alone have a NATO or Warsaw style pact. Since 1991 leading to
the recent impasse, Somalia never had any de facto or de jure regime that do the same. Robert I.
Rotberg, FailedStates in a World of Terror, 81 FoREIGN AFF. 127, 128 (2002).
20. See U.N. Charter art. 2, para. 7; Declaration on Principles of International Law Concerning
Friendly Relations and Cooperation Among States in Accordance with the Charter of the United
Nations, G.A. Res. 2625 (XXV), U.N. Doc. A/RES/2625(XXV) (Oct. 24, 1970) [hereinafter
Declarationon Principles ofInternationalLaw].
21. Nicaragua,1986 I.C.J. at 203-05, 195-99 ("[The Court] concludes that the requirement of a
request by the State which is the victim of the alleged attack is additional to the requirement that such a
State should have declared itself to have been attacked.").
22. See U.N. Sec. Council Comm., Rep. of the Monitoring Group on Somalia establishedpursuant
to Sec. Council resolution 751 (1992), 159, U.N. Doc S/2006/229 (May 4, 2006); U.N. Sec. Council
Comm., Rep. of the Monitoring Group on Somalia establishedpursuant to Sec. Council resolution 1587
(2005), 8, 25, U.N. Doc. S/2005/625 (Oct. 4, 2005).

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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. 21
Further, the right 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 case
for collective self-defense.
Writing on the controversial right to pre-emptive self-defense in the wake of
9/11, Professor Mary Ellen O'Connell makes a compelling appraisal of the ICJ
27
decision in Nicaragua. 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 collective self-defense if pressing concerns exist
which do not fit into the parameters of the law .28 Although the Security Council
had considered the military standoff between the various forces within and
neighboring Somalia, as well as Ethiopia's allegation of the mounting threat to its
security and territorial integrity, the Council did not authorize Ethiopia to take self-
defensive measures.29 Indeed, in Resolution 1725 adopted eighteen days before the
culmination of the hostility into a full-scale war, the Council expressly endorsed a
proposal by the Inter-Governmental Authority for Development (IGAD) to exclude
neighboring States of Somalia from the protection and training mission for
Somalia.30 In the Resolution, the Council implied the existence of States with a
vested interest when it called upon "all parties inside Somalia and all other States

23. See Nicaragua,1986 I.C.J. at 203, 195.

24. Press Release, NATO, Statement by the North Atlantic Council, NATO Press Release (2001)
124 (Sept. 12, 2001), available at http://www.nato.int/docu/pr/2001/pOl-124e.htm.
25. Sean D. Murphy, Terrorism and the Concept of "Armed Attack" in Article 51 of the U.N.
Charter,43 HARV. INT'L L.J. 41, 48 (2002).
26. See id
27. See O'CONNELL, supranote 5, at 6.
28. Id.
29. The Security Council has not made any statement that has the effect of either implicitly or
explicitly authorizing Ethiopia to use force in Somalia. Rather, in Resolution 1725/2006, the Council
asked neighboring States to exercise restraint. S.C. Res. 1725, 1-3, U.N. Doc. S/RES/1725 (Dec. 6,
2006).
30. Id. 3.

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to refrain from action that could provoke or perpetuate violence and violations of
human rights, contribute to unnecessary tension and mistrust, endanger the 31
ceasefire and political process, or further damage the humanitarian situation.,
Under these circumstances, there is no doubt that Eritrea and Ethiopia are among
the States that the Resolution called upon to refrain from actions that "perpetuate
violence" and derail the political process in an already turbulent State.3 2 Thus,
Ethiopia's claim to collective self-defense of Somalia under Article 51 of the
Charter does not seem to be compatible with the stipulation of the Charter.
III. ETHIOPIA'S ARMED INTERVENTION IN SOMALIA: "INDIVIDUAL SELF-DEFENSE?"
The exercise of the right to individual self-defense under Article 51 of the
Charter requires the fulfillment of several rigorous but exceedingly subjective
criteria. A lawful resort to armed force by individual States under Article 51
requires the fulfillment of at least the following conditions: a) there has to be a
significant armed attack against the State acting in self-defense;33 b) the self-
defensive measure must be against a State and aimed at the attacking party;34 c) the
measure must respect the principles of necessity;3 5 and d) the response must be
equivalent to the attack-the principle of proportionality must be observed.36
As the nature of global conflicts change, new actors emerge, and new threats
proliferate, these requirements have continued to generate deeper controversies
between States, legal practitioners, and academics leading to a sustained call for
the redefinition of the rules to meet contemporary threats.37 Nevertheless, the
debate over the precise contents of the vernaculars of U.N. Charter Article 51
continued between the strict constructionists on the one hand and those who
envision a broader scope of interpretation and application on the other.38 The most
vociferous of these debates include such questions as: what constitutes an "armed
attack?" When is an armed attack said to have occurred? When is an armed
response necessary? What is a proportionate response to threats or attacks under
the circumstances? Since Ethiopia strenuously justified its military interventions in

31. Id. at pmbl.

32. Id.
33. Nicaragua, 1986 I.C.J. at 203, 195 (holding that a "mere frontier incident" does not amount
to an armed attack for the purpose of self-defense under Article 51).
34. Id.
35. See Nuclear Weapons, 1996 I.C.J. at 245, 41; Nicaragua, 1986 I.C.J. at 106-11, 201-212;
O'CONNELL, supra note 5, at 7.
36. See Draft articles on Responsibility of States for Internationally Wrongful Acts, with
commentaries, [2001] 2 Y.B. Int'l L. Comm'n 20, U.N. Doc. A/CN.4/SER.A/2001/Add.1 (part 2),
available at http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9 6 2001 .pdf;
O'CONNELL, supranote 5, at 7; Franck, Terrorism and the Right of Self-Defense, infra note 74, at 839;
Judith Gail Gardam, Proportionalityand Force in InternationalLaw, 87AM. J. INT'L L. 391, 391
(1993).
37. U.N. SCOR, 56th Sess., 4370th mtg. at 3-4, U.N. Doc. S/PV.4370 (Sept. 12, 2001) ("The
magnitude of yesterday's acts goes beyond terrorism as we have known it so far.... We therefore think
that new defmitions, terms and strategies have to be developed for the new realities."); Erin L. Guruli,
The Terrorism Era: Should the InternationalCommunity Redefine its Legal Standards on Use of Force
in Self-Defense?, 12 WILLAMETTE J. INT'L L. & DIS. RES. 100, 123.
38. See infran. 44 &45.

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Somalia on the basis of its inherent right to individual self-defense under the
Charter, an examination of the requirements of lawful individual self-defense
under Article 51 of the Charter will follow.
A. The Requirement of an "Armed Attack"
The occurrence of an "armed attack" against the victim State in violation of
the principles enunciated under Article 2(4) of the Charter constitutes the primary
trigger for self-defense.3 9 However, there are extensive debates as to the precise
requirements of Article 51 with respect to the occurrence of an "armed attack."
The question is not so much whether an armed attack has occurred, it is rather:
when is an armed attack said to have occurred? For most strict constructionists, the
cumulative reading of Article 2(4) and Article 51 constituted a rule that defined the
scope and limits of the principle. 40 For them, self-defense is a response to an armed
attack triggered only "if an armed attack occurs against a Member of the United
Nations" and in no other circumstance.41 In that sense, the question is the first,
whether an armed attack has occurred. The literal reading of the semantics used in
Article 51, "if an armed attack occurs," reinforces this view and seems to clearly
require an actual "armed attack" against States.
Other authorities consider the above construction as excessively restrictive
and legalistic to the extreme and point to the opening sentence of Article 51 to
defend their vision of a broader scope of the right to self-defense. They argue that
the phrase "[n]othing in the present Charter shall impair the inherent right of...
self-defen[s]e," recognizes the existence of a customary right to self-defense
unencumbered by the narrower scope of the Charter which strictly requires the
occurrence of an armed attack.43 It is also submitted that the travauxpriparatoires
of the Charter supports the view that the "'use of arms in legitimate self-defen[s]e
remains admitted and unimpaired.' 44 Summarizing the views of "some States"
and "most academics," Malcolm N. Shaw portrays "Article 51 as merely
elaborating one kind of self-defense in the context of the primary responsibility of
the Security Council" within the framework of the Charter. 5

39. O'CONNELL, supra note 5, at 5.

40. SHAW, supranote 5, at 1132.
41. U.N. Charter art. 2; see EDUARDO JIMtNEZ DE ARECHAGA, INTERNATIONAL LAW IN THE PAST
THIRD OF A CENTURY 87-98 (Recueil des Cours vol. I, 1978); BROWNLIE, supra note 7, at 112-13, 264;
SHAW, supranote 5 at 1132-33.
42. PalestinianTerritory, 2004 I.C.J at 194, 127; Nicaragua, 1986 I.C.J. at 203, 194-195; see
also T. D. Gill, Litigation Strategy in the Nicaraguan Case at the International Court, in
INTERNATIONAL LAW AT A TIME OF PERPLEXITY 197, 223 (Yoram Dinstein, ed. 1989).
43. See D. W. BOWETT, SELF-DEFENCE IN INTERNATIONAL LAW 185-86 (1958); J.L. BRIERLY,
THE LAW OF NATIONS 417-18 (6th ed. 1963); D.P. O'CONNELL, INTERNATIONAL LAW 317 (1965);
JULIUS STONE, AGGRESSION AND WORLD ORDER: A CRITIQUE OF UNITED NATIONS THEORIES OF
AGGRESSION 43, 95-96 (1958); H. WALDOCK, GENERAL COURSE ON PUBLIC INTERNATIONAL LAW 6,
231-37 (1962).
44. See SHAw, supra note 5 at 1132 n.68 (quoting U.N. Conference of International
Organization).
45. Id.at 1026.

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Even more authoritative and reconciliatory of the above debate is the

reaffirmation of the latter view by the ICJ in Nicaragua. In its extensive
examination of the issue, the Court proclaimed the existence of a conventional and
customary right to self-defense.46 In dismissing the contention of the United States
that Article 51 of the Charter "subsumes and supervenes" the scope of the right
under customary international law, the Court construed the silence of Article 51 on
certain essential rules of self-defense, well-established in customary international
law, as evidencing the inadequacy of Article 51 to independently regulate the
exercise of the right.47 In affirming the existence of a customary rule of self-
defense along side the Charter rule, the Court declared:
It cannot therefore be held that Article 51 is a provision which
'subsumes and supervenes' customary international law. It rather
demonstrates that in the field in question, the importance of which for
the present dispute need hardly be stressed, customary international law
continues to exist alongside treaty law. The areas governed by the two
sources of law thus do not overlap exactly, and the rules do not have the
same content.48
In Nicaragua, although the Court found a customary right of self-defense
governing situations slightly separate from the Charter, it did not go into detail on
how and when States could resort to self-defense in cases of an "imminent threat of
armed attack" short of actual armed attack.49 It did, however, hold that the right to
self-defense under Article 51 requires the occurrence of an armed attack when it
held that "[i]n the case of individual self-defen[s]e, the exercise of this right is
subject to the State concerned having been the victim of an armed attack. 5 °
Nevertheless, the Court clearly implied the availability of the right to self-defense
in response to an imminent threat of an armed attack. 51 Therefore, while Article 51
of the Charter allows self-defense only in response to an armed attack, the inherent
right of States to resort to force against an "imminent threat of attack" under
customary law remained unencumbered by the Charter.
The Ethiopian government and opposition forces within Ethiopia are in
agreement that there has been an attack against Ethiopia by Ethiopian rebel forces

46. Nicaragua, 1986 I.C.J. at 94, 176.

47. Id. ("[T]he Charter, having itself recognized the existence of this right, does not go on to
regulate directly all aspects of its content. For example, it does not contain any specific rule whereby
self-defense would warrant only measures which are proportional to the armed attack and necessary to
respond to it, a rule well established in customary international law. Moreover, a definition of the
"armed attack" which, if found to exist, authorizes the exercise of the "inherent right" of self-defense, is
not provided in the Charter, and is not part of treaty law.").
48. Id.
49. Id. at 103, 194.
50. Id. at 103, 195; See also id. at 27-28, 35 ("[W]hat is in issue is the purported exercise by
the United States of a right of collective self-defen[s]e in response to an armed attack on another State.
The possible lawfulness of a response to the imminent threat of an armed attack which has not yet taken
place has not been raised.").
51. See id.; See also Armed Activities on the Territory of the Congo (Dom. Rep. Congo v.
Uganda) 2005 I.C.J. 168, 144 (Dec. 19) [hereinafter Territoryof the Congo].

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operating from the territories under the control of the UIC. 52 However, the mere
existence of an attack does not necessarily constitute an "armed attack" triggering
Ethiopia's right of self-defense under Article 51 of the Charter. Further, Somalia's
failed State scenario makes it almost impossible to develop a proper allocation of
responsibility for allowing territories under its control to be used by insurgents or
for failing to control 53 the attacks emanating from within its territory.
Theoretically, as a de facto regime, the UIC has the duty to refrain from acts
contrary to the stipulation of Article 2(4) of the UN Charter.54 But accountability
for breach of international law by defacto regimes remained an elusive normative
conception not yet crystallized into general international law. In the absence of a
responsible government in effective control of the territory of the state, one can
question the extent to which the State that continued to suffer cross-border
skirmishes should exercise restraint. Nevertheless, the attack against Ethiopia by
Ethiopian rebel forces from the areas under the control of the UIC does not justify
Ethiopia's unilateral military operation in Somalia. Ethiopia's intervention is
unjustified and inconsistent with the requirements of Article 51, not only because
the attack has come from Ethiopian insurgents operating from within Somalia, but
also because its actions contradicted Security Council resolution.
B. The Requirement of a "StateActor"
The second major requirement relates to the existence of a nexus between the
armed attack and a State in order for an act to constitute an armed attack under
Article 51 of the Charter.55 Although there is nothing in the Charter or the language
of Article 51 requiring a nexus between the "armed attack" and a State, traditional
international law has tied the notion of armed attack in Article 51 to States. 6 This
is partly because the prohibition set forth in Article 2(4) is stipulated as the duty of
"all Members" to refrain in their international relations from actions which
potentially trigger the application of Article 51. 57 The argument goes, if the
prohibition is addressed to States, the right granted to the State as an exception to
Article 2(4) must also be exercised against recalcitrant States that contradicted the
prohibition under Article 2(4).58

52. See Fanta, supra note 1.

53. See Declaration on Principlesof InternationalLaw, supra note 20, at art. 3(g) ("The sending
by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of
armed force against another State of such gravity as to amount to the acts listed above, or its substantial
involvement therein."); G.A. Res. 3314, Annex Art. 3(g), U.N. Doc. A/RES/3314 (Nov. 29, 1974); See
also O'CONNELL, supra note 5, at 7 (discussing that legal responsibility follows if a state controlled or
supported the attackers).
54. See Carsten Staln, TerroristActs as "Armed Attacks": The Right to Self-Defense, Article 51
(11212) of the UN Charter,and InternationalTerrorism, 27 FLETCHER F. WORLD AFF. 35, 42 (2003).
55. See Nicaragua,1986 I.C.J. at 103-104, 195; Murphy, supranote 25, at 44.
56. See GRAY, supra note 5, at 6, 130 (arguing that, although the International Court of Justice
required a nexus between the armed attack and the State in Nicaragua,most States did not claim a legal
right to the use of force based on the narrow question of whether an attack constituted an armed attack).
57. U.N. Charter art. 2(4) (prohibiting "the threat or use of force against the territorial integrity or
political independence of any state").
58. See O'CONNELL, supranote 5, at 4-5.

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However, modem international life and the growing power of non-state-actors

seem to have rendered the requirement of a nexus between a State and a non-state
actor simply unrealistic. 9/11 sent a powerful message to the world that organized
non-state actors/terrorists could fly commercial airplanes into skyscrapers to rein
shock and panic in one of the most powerful nations on earth without employing
conventional firearms. 59 Following that incident, the international community
came to recognize that a private act could constitute an "armed attack" within the
provision of Article 51 regardless of a nexus between a State and a need for
attribution.60 Observing this tide of progression, Carsten commented, "the
recognition that acts of private actors may give rise to an armed attack is anything
but revolutionary., 61 Thus, 9/11 set a profound change in that tradition and brought
independent acts of private actors/terrorists within the ambit of an armed attack
provided that such an attack is of significant scale and effect. 62 In the aftermath of
the attack, the Security Council, in resolution 1368(2001) and, 1373(2001) stated
the United States' inherent right of self-defense in accordance with the Charter by
declaring the attack of 9/11 as "terrorist attacks" and "threat[s] to international
peace and security., 63 Also, NATO and the Organization of the American States
declared the attack as an "armed attack" and vowed to exercise their right to
collective self-defense.64 NATO, for example, did not require evidence to the
effect that the attack of 9/11 be attributed to the Taliban regime or Afghanistan,
rather it asked whether the "attack was directed from abroad against the United
States" and could therefore "be regarded as an action covered by Article 5 of the
Washington Treaty. 65
However, many academics disagree that the events of 9/11 represented a
"rigorous change in the law" or that the decision of NATO, the Security Council,
or the Organization of the American States on the particular facts of the events of
9/11 constituted a general and uniform state practice that constitutes a rule of
customary international law that applies beyond that specific fact.66 They rather see
the change, for several reasons, as a "change in fact" which shifts back as the
euphoria for security subsides.67 Those who refute the argument that 9/11
constituted a "rigorous change in law", point to the uniquely dangerous and
alarming dimension of the 9/11 attack which gave it the political legitimacy and
momentum necessary to galvanize enormous support to broaden the scope of the
rule.68 In refuting the argument that State practice and world opinion after 9/11
constituted a change in the scope of Article 51, they point to the existence of a

59. See Murphy, supra note 25, at 41.

60. See GRAY, supra note 5, at 159.
61. Stahn, supranote 55, at 42.
62. See id.at 45.
63. S.C. Res. 1373, para. 2-4, U.N. Doc. S/RES/1373 (Sept. 28, 2001); S.C. Res. 1368, para. 2-3,
1, U.N. Doc. S/RES/1368 (Sept. 12, 2001).
64. See O'CONNELL, supranote 5, at 10.
65. NATO Press Release, supranote 24.
66. Stahn, supranote 55, at 35-36.
67. Id. at 36.
68. Id. at 35-36.

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State actor, Afghanistan, to whom the acts of the perpetrators of the 9/11 attack is
legally attributable. 69 Although the changing realities of global politics and power
relationships required serious reconsiderations of several rules of international law
relating to use of force and the conduct of hostilities,70 selective revisions
prompted by a single catastrophic event, such as 9/11, carries its own dire
ramifications.71 Some academics see the events of 9/11 as mere 'conventional
crimes' rather than an "armed attack., 72 Summarizing his concern about the
ongoing debate, Carsten Stahn noted:
It may be of greater consequence to admit openly that the requirement
of attributability does not play a role in the definition of armed attack.
Such a step would certainly mark a qualitative change in the application
of Article 51 because
73
it breaks with the conception of Article 51 as a
state-centered norm.
Nonetheless, there are strong arguments, today, that reject the legal
requirement of a state-actor to qualify an act as an armed attack, without however,
ignoring the relevance of such a nexus in identifying the State towards which the
self-defensive measure will be directed 7 4
Nicaragua brought to light a slightly different dimension of what constituted
an "armed attack" under Article 51 in the 80s. The Court required the existence of
a legal attribution of sort, meeting the test of effective control, not even an overall
control, between the acts of a non-state actor and a State to qualify an act as an
"armed attack. 75 Opposing the restrictive approach of the Court to the question of
what constituted an "armed attack," Judge Jennings argued in dissent that "it seems
dangerous to define unnecessarily strictly the conditions for lawful self-defen[s]e,
so as to leave a large area where both a forcible response to force is forbidden, and
yet the United Nations employment of force, which was intended to fill that gap, is
absent. 76 Despite the two Security Council Resolutions issued in the wake of 9/11
and the almost unanimous support given to United State's military intervention in
Afghanistan, the ICJ seems to have stood by its Nicaraguatest in at least two post
9/11 cases.77
In its advisory opinion in the Palestinian Territories, the Court rejected the
Israeli claim to self-defense on the reasoning that self-defense under Article 51 is

69. Guruli, supranote 37, at 109.

70. See id. at 115.
71. See Stahn, supra note 55, at 41; Geir Ulfstein, Terrorism and the Use of Force, 34 SECURITY
DIALOGUE 153, 153-54 (2003).
72. See Jack M. Beard, America's New War on Terror: The Case for Self-Defense Under
InternationalLaw, 25 HARV. J.L. & PUB. POL'Y 559, 573-74 (2002); Antonio Cassese, Terrorism is
Also DisruptingSome CrucialLegal Categories of InternationalLaw, 12 EUR. J. INT'L L. 993, 995-98
(2001); Thomas M. Franck, Terrorism and the Right of Self-Defense, 95 AM. J. INT'L L. 839, 840
(2001).
73. Stahn, supranote 55, at 42.
74. See Guruli, supranote 37, at 108-109.
75. See Nicaragua,1986I.C.J. at 65-65, 115.
76. Id. at 543-44.
77. See Territory of the Congo, 2005 I.C.J. 168; PalestinianTerritory,2004 I.C.J. 136.

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not available to Israel against non-state actors operating on the territories under the
control of Israel.78 In Territory of the Congo, the Court required the responsibility
of the Congo for the multifarious offensive actions of Ugandan rebels from the
Congolese territories in order to find Uganda's right to self-defense legitimate.79
In Territory of the Congo, repeating the precedent it set in Nicaragua,80 the
ICJ refuted Uganda's claim to self-defense proclaiming that:
It is further to be noted that, while Uganda claimed to have acted in self-
defen[s]e, it did not ever claim that it had been subjected to an armed
attack by the armed forces of the DRC. The "armed attacks" to which
reference was made came rather from the ADF. The Court has found
above (paragraphs 131-135) that there is no satisfactory proof of the
involvement in these attacks, direct or indirect, of the Government of
the DRC. The attacks did not emanate from armed bands or irregulars
sent by the DRC or on behalf of the DRC, within the sense of Article 3[
](g) of General Assembly resolution 3314 (XXIX) on the definition of
aggression, adopted on 14 December 1974. The Court is of the view
that, on the evidence before it, even if this series of deplorable attacks
could be regarded as cumulative in character, they still remained non-
attributable to the DRC. For all these reasons, the Court finds that the
legal and factual circumstances for the exercise of 81a right of self-
defen[s]e by Uganda against the DRC were not present.
Starkly putting the question is Professor Thomas Franck, who criticizes the
majority's view of a narrower construction of Article 51. He asks: "was the state
from which insurgents were operating legally responsible (in the sense of Charter
Article 51) for their activities in El Salvador and Uganda?, 82 Franck continues,
"[p]ut that way, and answered by the Court in the negative," i.e., no sufficient
evidence found for attribution, "the question precluded invocation of the right of
self-defense" by the United States and Uganda.83 Moreover, the State that is
subject to an armed attack is precluded from resorting to force under the Charter
even if the acts of the insurgents, evaluated on their own, amount to an armed
attack justifying self-defense under Article 5 1.84 This holds true unless the acts of
the insurgents operating in the territories of States constitute the act of those States
under the law of State responsibility.85 Professor Frank further observes "the
judges [the majority] could have replaced the question of attribution with a finding

78. PalestinianTerritory,2004 I.C.J. at 194, 139.

79. See Territory of the Congo, 2005 I.C.J. at 222, 146.
80. See Nicaragua,1986 I.C.J. 14
81. Territoryof the Congo, 2005 I.C.J. at 222-23, 146-47.
82. Thomas M. Franck, On Proportionalityof Countermeasuresin InternationalLaw, 102 AM. J.
INT'L L. 715, 722 (2008).
83. Id.
84. See id.
85. See id. at 736-37; see Territory of the Congo, 2005 I.C.J. at 222, 146; Nicaragua,1986 I.C.J.
at 65, 116.

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of liability of states for injurious effects emanating from their territory and
affecting the rights of neighboring states. 86
It seems that whatever change existed in the context of non-state
actors/terrorist acts of such an alarming magnitude, the change does not of itself
allow States to independently declare such acts as an "armed attack" and entitle
themselves to an armed response.87 The Security Council in accordance with the
Charter authorized the attack against Afghanistan in the aftermath of 9/1 188 In
order for terrorist acts of a "significant scale,"8 9 designed and launched by an
independent private actor to be considered as an "armed attack" there should be
Security Council authorization allowing the victim State to exercise its right to
self-defense. 90 In addition, the resort to force must anticipate a proper identification
of the responsible State. 91
That being said, it is important to situate the UIC and Ethiopia's alleged threat
and mounting fear of attack into perspective in the light of these new
developments. According to the Ethiopian and the United States governments,
some elements within the Court's Union are terrorists or at least affiliated with
terrorist organizations. 92 To substantiate their allegations, they pointed to the then
head of the Court's Union, Sheikh Hassen Dahir Awyes, who according to the
Ethiopian government, was the leader of Ali-Itihad-al-Islamia.93 Nevertheless,
neither Ethiopia nor the United States declared the UIC in toto as a terrorist
organization. For the same reason, former members of the Court's Union are now
leading the TFG.94
Be that as it may, whatever change occurred in the law governing the use of
force, it did not affect the scope of Article 51. The US military response to the
attacks of 9/11 followed the second exception to Article 2(4) of the Charter,
namely, Security Council determination of the attack as a breach of international
peace and security and its subsequent authorization of the victim State to self-

86. Franck, supranote 83, at 722.

87. See O'CONNELL, supranote 5, at 7.
88. See S.C. Res. 1373, supra note 64.
89. Nicaragua, 1986 I.C.J. at 104, 195.
90. See, e.g., O'CONNELL, supranote 5, at 5.
91. Id. at 7.
92. See David H. Shinn, United States Somali Relations: Local National and International
Dimensions, EAST AFRICA FORUM, Apr. 26, 2010, http://eastafricaforum.net/2010/4/28/united-states-
somali-relations-local-national-and-international-dimensions/; Quick Guide: Somalia's Islamists, BBC
NEWS, Dec. 28, 2006, http://news.bbc.co.uk/2/hi/africa/6043764.stm. On December 16, 2008, the
Assistant Secretary of State was quoted as saying: "The Council of Islamic Courts is now controlled by
al-Qaeda cell individuals, East Africa al-Qaeda cell individuals. The top layer of the [sic] court are
extremists. They are terrorists.... They are killing nuns, they have killed children and they are calling
for ajihad (holy war)." Sue Pleming, U.S. says al Qaeda radicals leadSomali Islamists, REUTERS, Dec.
14, 2006, http://www.alertnet.org/thenews/newsdesk/N14424846.htm (internal quotation marks
omitted).
93. See Profile: Somalia's Islamic Courts, BBC NEWS, June 6, 2006, http://news.bbc.co.uk
/2/hi/5051588.stm.
94. U.S. Should Accept Islamist Authority, Report Says, INTER PRESS SERVICE, Mar. 12, 2010,
available at WL 3/12/10 allAfrica.com 12:34:08.

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defensive measures. However, NATO's and OAS's characterization of the events

of 9/11 as an 'armed attack', supports the view that 9/11 brought about a change in
the scope and substance of Article 51 of the Charter. However, this one time
practice does not constitute a new rule of customary international law that modifies
the substance of Article 51. Furthermore, nothing in treaty law or state practice
suggests the characterization of a non-state actor as a terrorist or otherwise
modifies the rule under Article 51 of the Charter. A terrorist attack by itself against
a State, if it is not of a significant scale and not attributable to State, does not
qualify as an "armed attack., 95 On the contrary, there is no reason why an attack by
a non-terrorist non-state actors, if it is of a significant scale and effect and
attributable to the State, should not be considered an "armed attack." The rationale
that informed NATO and OAS member States' consideration of 9/11 as an armed
attack seems to relate, among other things, to the gravity of the attack: where the
attack originated from, "the source of the attack (i.e. the actor), the
weapons/method of force used, the gravity of the attack, the location of the attack,
and the national and international reaction" to the attack.96 On the same reasoning,
one could argue, if an attack from the UIC against the Ethiopian State is significant
enough in terms of its scale and effect or in the light of the developments discussed
above, there is no reason why it should not be considered an armed attack within
the meaning of Article 51.
However, one might challenge the above contentions by pointing to Article
2(4) of the Charter which prevents the use of force by a State against another State
to reinforce the argument that the exception under Article 51 is a right to self-
defense in response to an attack occurred in violation of Article 2(4). 97 Thus, since
Article 51 is an exception to Article 2(4), which prohibits use of force by States,
the response under Article 51 must be to an "armed attack" by a State. 98 However,
the factual situations portrayed by the UIC as an entity that was in control of most
parts of Somalia as of December 2006, makes it more than just a non-state actor
and certainly entitles it to a de facto regime status. 99 If the recent change in
contemporary international law recognizes the rights of States to self-defense
against terrorist acts of grave magnitude,100 the right of States to defend themselves
from a de facto regime conforms even better to the raison d'etre that represented
whatever shift in the law.
On a more conceptual level, the characterization of the UIC, at the relevant
time, as a de facto regime rather than a mere terrorist group1 °1 strengthens the
argument of those who supported a broader construction of Article 51 to

95. See Guruli, supranote 37, at 110-14.

96. Id.at 110.
97. See id. at 103.
98. Id.
99. See U.N. Office for the Coordination of Humanitarian Affairs, Somalia: UIC Disarms Militia,
Tightens Control Over Kismayo, IRINNEWS.ORG, Sept. 28, 2006, http://www.globalsecurity.org/
military/library/news/2006/09/mil-060928-irinOl.htm.
100. See Guruli, supranote 37, at 108-09.
101. See Findingan End to the Somali Crisis, U.N. INTEGRATED REG'L INFO.NETWORKS, Aug. 18,
2006, available at Westlaw, 8/18/06 allAfrica.com 16:58:48.

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accommodate not only acts of State but also of non-state actors. 10 2 Furthermore, it
was even contended that de facto regimes are bound by the provisions of Article
2(4) of the Charter regardless of individual or collective international
recognition. 103 Even if Ethiopia and other members of the international community
recognize the TFG, by virtue of actual territorial control, the UIC is bound by the
prohibitions set forth in Article 2(4). 104 It follows that conduct by a non-state actor,
such as the UIC, if it is contrary to the stipulation of Article 2(4) and of significant
scale, can qualify as an "armed attack" and trigger Ethiopia's right of self-
defense.10 5 Therefore, the non-state-actor nature of the UIC does not deny Ethiopia
the right to resort to self-defensive measures if other conditions of the law are
fulfilled.

C. How SignificantMust the Attack Be? The 'Scale' and 'Effect' Test
The third major requirement of Article 51 relates to the gravity of the armed
attack. 10 6 Generally, in order for self-defense to be lawful, a significant armed
attack must have "already occurred ' 10 7 "against the territorial integrity and
political independence of States. 10 8 The application of Article 51 will be triggered
only when an armed attack of a significant scale and effect has already occurred
against a State.10 9 Hence, the Ethiopian State must demonstrate that not only an
attack has already occurred "against its territorial integrity and political
independence," but an attack of a significant scale and effect, have already
110
occurred against its "territorial integrity or political independence."
The language of Article 51 is silent on the requirement of gravity of the
attack.' In considering the question of the "sending by a State of armed bands,"
the ICJ introduced a scale and effect based test when it held that the prohibition of

102. See Guruli, supra note 37, at 107-08 (discussing the two different theories regarding what
constitutes an "armed attack").
103. See Stalin, supra note 55, at 42.
104. Jackson Mbuvi, Only a Spirit of Give and Take will Work,ALLAFRICA.COM, Nov. 16, 2006,
available at Westlaw, 11/16/06 allAfrica.com 01:34:41.
105. See Guruli, supra note 37, at 108 (drawing similarity between the United States right of self-
defense used against the 9/11 attacks, which qualify as an "armed attack" of a significant scale against
the United States, and Ethiopia's possible right of self defense against the UIC).
106. See O'CONNELL, supra note 5,at 5-6.
107. Id.at5.
108. Id.at 4.
109. See Nicaragua, 1986 I.C.J. at 103-04, 194-95.
110. U.N. Charter art. 2, 4;Nicaragua, 1986 I.C.J. at 103, 195 (establishing the law regarding
when an attack qualifies as an "armed attack" because of the scale and effect of the attack). The fact
intensive/specific nature of this requirement is apparent. It requires a higher threshold of evidence
usually unavailable for academic research. In addition to the gravity of the attack Ethiopia claimed to
have suffered before the days and months leading to the December 24, 2006, the very existence of any
such attack against the "territorial integrity and political independence" of Ethiopia, cannot be
empirically verified. Since the evidence necessary for the analysis of Ethiopia's conduit is far from
being sufficient, the following discussion relies on governmental statements, official correspondences
between governments and international organizations to examine the legality of resort to force.
111. See U.N. Charter art. 51.

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armed attacks may apply to "the sending by a State of armed bands on to the
territory of another State, if such an operation, because of its scale and effects,
would have been classified as an armed attack [rather than a mere frontier
accident] had it been carried out by regular armed forces. 11 2 Although the Court
did not set an objective threshold that must be reached in order for the use of an
armed band to rise to an armed attack, ' it1 3nevertheless unequivocally stipulated that
it should occur on a "significant scale."
There are voices within the Ethiopian political spectrum and within the
international community unconvinced about the occurrence of such an attack, and
even if such an attack did occur, they question the significance of its scale and
effect as to trigger Ethiopia's self-defensive response.! 14 Some opposition members
of the Ethiopian Parliament echoed concern and skepticism about the gravity of the
danger posed against Ethiopia and the overall intent of the government.115 This 116
sentiment was echoed in a vigorous debate that took place in the parliament.
Responding to a question from opposition MPs on whether Ethiopia is engaging in
preemptive self-defense, the Ethiopian Prime Minister stated unambiguously that
the Country had already come under attack from the UIC, 1 17 without elaborating in
detail the gravity, place and time of that attack.118 Prime Minister Meles Zenawi
refrained from making a public statement about the details of the attack owing to
national security concerns and asked the Speaker of the House to adjourn for a new
session to allow time for deliberation on the evidence with the opposition.1 19 In the
next session of parliament devoted to the consideration of this resolution, major

112. Nicaragua, 1986 I.C.J. at 103-04, T 195 (emphasis added).

113. Id.; W. Michael Reisman, Allocating Competences to Use Coercion in the Post-Cold War
World: Practices,Conditions, and Prospects,in LAW AND FORCE IN THE NEW INTERNATIONAL ORDER
26, 39 (Lori Fisler Damrosch & David J. Scheffer eds., 1991) (quoting Nicaragua).
114. See Abeje Tesfaye, The Responsibility to Protect Somalia, ETHIOPIAN REPORTER, Aug. 12,
2006, available at Westlaw, 8/12/06 allAfrica.com 07:04:01.
115. Bruck Shewareged, Politics - On the Brink of War - Government Seeks Parliamentary
Backing, ETHIOPIAN REPORTER, Nov. 29, 2006, available at Westlaw, 11/29/06 allAfrica.com
17:56:19.
116. See id. (explaining the differing views of members of the parliament regarding the
adjournment motion).
117. Id.
118. See id. When the PM presented a four-point resolution to the parliament seeking authorization
to take any means necessary to curb possible attack from forces in Somalia, opposition political parties
pressed the PM to provide genuine evidence that Ethiopia s indeed attacked by the UIC. In a televised
parliamentary debate, the PM expressed his willingness to share 'sensitive' national security evidence
with political parties in private so that the house unanimously pass the resolution backing the
government. However, most opposition parties remained opposed to the resolution after deliberating
with the government on the evidence. When the resolution was re-tabled before parliament for voting,
most opposition parties either voted against or abstained. The PM commented that the difference
between the government and the opposition lies at the heart of the third point in the resolution, which
accuses Ethiopian insurgencies based in Eritrea and Somalia collusion with foreign forces to attack
Ethiopia. The resolution was passed by a vote of 311 to 99 with 11 abstentions. See Parliament
Endorses Resolution to Reverse Somali Islamists Aggression, Press Section, MINISTRY OF FOREIGN
AFFAIRS ETHIOPIA, Dec. 1, 2006, http://mfa.gov.et/Press Section/publication.php? Main Page
Number=3221.
119. Shewareged, supranote 116.

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opposition parties either abstained or voted against the resolution that authorized
12
the government to take "all necessary and legal steps" to repel the danger. 0
Defending UEDF's (Union of Ethiopian Democratic Forces) position on the
resolution, Professor Beyene Petros, then an MP, expressed his doubts in the
following terms:
If sporadic incursion warranted a declaration of war, there would be no
peace any[ ]where. Here, we are only being told of sporadic incursions
and there is nothing to show us... an act of invasion. Therefore we do
not believe the threat is being appropriately defined [nor] that it justifies
such resolution. 121
UEDF's leader, Beyene Petros, agrees with the government: Ethiopia might
have been attacked by Ethiopian rebel forces operating from within an area under
the control of the UIC.12 2 However, his party has opposed the characterization of
such attacks from insurgent groups as "invasion" by the UIC and has refused to
support the resolution that authorized the government to declare war on insurgent
groups.123
For the purpose of self-defense under Article 5 1, Ethiopia must have suffered
an armed attack of a significant magnitude in terms of its scale and effect for its
self-defensive measure to be lawful under the law. 124 From the conditions required
by the law and analyzed above, Ethiopia's self-defensive measure does not seem to
comply with requirement of an armed attack of a significant scale and effect, a
requirement at the very core of the Charter regime on self-defense. 125 However, if
it is established that Ethiopia has been under repeated attacks that are not in and of
themselves individually significant enough to trigger its self-defensive measure,
one might argue that an "accumulation of events" doctrine allows the government
to accumulate the small scale attacks as constituting one serious and significant
attack. 126 However, this doctrine is not well received127in international law and does
not seem consistent with the position of the Charter.
Ethiopia also defended its action before and after the war on the basis of the
existence of what it called a "clear and present danger., 128 Indeed, Ethiopia tended
to favor this line of argument more than the argument that "the right of self
defen[s]e arises only if an armed attack . . . occurs., 129 As discussed above in

120. See Dagnachew Teklu, MPs Vote to Fend Off Islamist "JihadWar", DAILY MONITOR, Dec. 5,
2006, available at Westlaw, 12/5/06 allAfrica.com 01:46:39.
121. Namrud Berhane, Eritrea will Fight to the Last Somali, not the Last Eritrean - Meles,
ETHIOPIAN REPORTER, Dec. 4, 2006, available at Westlaw, 12/4/06 allAfrica.com 15:37:3 1.
122. See Yelibenwork Ayele, Ethiopia: UEDFDefends its Position,ETHIOPIAN REPORTER, Dec. 9,
2006, http://allafrica.com/stories/200612110387.html.
123. See Berhane, supra note 122.
124. See Nicaragua,1986 I.C.J. at 103-04, 194-95.
125. See Tesfaye, supranote 115.
126. Howard A. Wachtel, TargetingOsama Bin Laden: Examining the Legality ofAssassination as
a Tool of US. ForeignPolicy, 55 DuKE L.J. 677, 693 (2005).
127. Id. at 693-94.
128. Shewareged, supranote 116; Teklu, supranote 121.
129. GRAY, supra note 5, at 98. During the discussion in the parliament, the Ethiopian government

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detail, threats, whether imminent or otherwise, do not entitle one to resort to armed
response under the Charter. 130 Since the Charter rules on self-defense have a
separate existence than the rules of self-defense in customary international law, the
next sections will examine the validity of Ethiopia's right to self-defense under
customary international law.
IV. ETHIOPIA'S USE OF FORCE UNDER CUSTOMARY INTERNATIONAL LAW
Some scholars have argued that customary international law allows the right
to a defensive measure in anticipation of an attack even if an armed attack did not
occur.1 31 Professor Bowett for example contends that Article 2(4) of the Charter
did not impair State's customary right to self-defense and did not confine it to a
response to armed attack. 13 2 In a similar fashion, Sir Humphrey Waldock observed
that "where there is convincing evidence not merely of threats and potential danger
but of an attack being actually mounted, then an armed ' 133
attack may be said to have
begun to occur, though it has not passed the frontier."
The exchange between the United States and United Kingdom following the
Caroline incident is considered an authoritative statement, reflective of customary
international law on the use of force. 134 In this correspondence, the then Secretary
of State, James Webster, articulated the notion that self-defense must be limited to
situations in which "the necessity of that self-defen[s]e is instant, overwhelming,
and leaving no choice of means, and no moment for deliberation., 135 Professor
O'Connell contends that the formula in Caroline is consistent with "the letter and
sprit of the Charter., 136 Schachter also observes that the delegates to137the Security
Council discussed the rule in Caroline following the Osirakincident
In that exchange, Mr. Webster neatly articulated the rule that "the act,
justified by the necessity of self-defens[e], must be limited by that necessity, and
kept clearly within it."'1 38 It is from these statements that the touchstone principles
of necessity and proportionality evolved.

has persistently referred to the vernacular of a "clear and present danger" produced by combination of
four points presented to the Parliament as constituting the basis for such a danger. See Shewareged,
supranote 117; Teklu, supranote 122 (internal quotation marks omitted).
130. See O'CONNELL, supranote 5, at 8, 13.
131. Id. at9.
132. BROWNLIE, supranote 7, at 269.
133. O'CONNELL, supra note 5, at 8-9.
134. Oscar Schachter, The Right of States to Use Armed Force, 82 MICH. L. REV. 1620, 1635
(1984); see also O'CONNELL, supra note 5, at 9 (concluding that the Caroline doctrine is consistent
with the Charter and the Charter by now is considered crystallization of customary international law);
but see GRAY, supra note 5, at 98 (portraying the two differing positions argued with respect to Article
51 through a paradigm called "the Academic Debate"; while some argue that the inherent right of the
State to self-defense allows anticipatory self-defense, others argue that the right is limited to cases when
an armed atta already occurred).
135. Id. at 1635.
136. O'CONNELL, supra note 5, at 9.
137. Schachter, supra note 135, at 1635.
138. JOHN F. MURPHY, THE UNITED NATIONS AND THE CONTROL OF INTERNATIONAL VIOLENCE:
A LEGAL AND POLITICAL ANALYSIS 17 (1983).

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A. Armed Response Should Be Necessary: The Requirement ofNecessity

According to Caroline,the necessity that provokes self-defense should be one
that is "instant, overwhelming, and leaving no choice of means, and no moment of
deliberation." 3 9 What is instant and overwhelming depends on a number of factual
circumstances ruling at the relevant time and space and there is no empirical
formula that helps make an objective determination of what fits into this
parameter. Indeed, given the danger posed against States by acts of "terrorism," the
eminence and proximity of the danger should be assessed in relative terms. For
example, a State equipped with some of the most sophisticated and advanced
military technology should not be held to the same standard of necessity as poor
countries that do not possess the necessary intelligence and technical knowledge to
appreciate the eminence and gravity of the threat and the means with which to
respond to it.
The Ethiopian Premier told Parliament that the Islamists in Somalia have
presented a "clear and present danger" against the country's peace and security."'
According to the resolution passed by the Ethiopian Parliament, a combination of
four major factors triggered Ethiopia's right to lawful self-defense: a) The presence
of Eritrean troops in Somalia with the sole purpose of destabilizing the peace and
stability of the Ethiopian State; b) the repeated declaration by UIC of a holy war-
jihad-against Ethiopia and the flow of arms and financial support to the group
from several Middle Eastern countries; c) the operation of armed Ethiopian
opposition groups from within the areas under the control of the UIC with the view
to overthrowing the legally constituted government of Ethiopia; and d) the
presence of foreign militant fighters alongside the UIC which constituted a
situation of "clear and present danger" against the territorial integrity and political
independence of the Ethiopian State. 141 In particular, the emergence of the UIC as
a real political force while Ethiopia was militarily confronting secessionist

139. CHARLES CHENEY HYDE, INTERNATIONAL LAW 239 (1945), reprinted in MARY ELLEN
O'CONNELL, INTERNATIONAL LAW AND THE USE OF FORCE: CASES AND MATERIALS 122 (2005); See
also Gabcikovo-Nagymaros Project, (Hung./Slovk.), Judgment, 1997 I.C.J. 7, at 40-41, 51-52 (Sept.
25); Fisheries Jurisdiction (Spain v. Can.), Judgment, 1998 I.C.J. 432 (Dec. 4).
140. See, Jonathan Clayton, Ethiopia Confronts Somali Warlords, SUNDAY TIMES, Nov. 24, 2006,
http://www.timesonline.co.uk/tol/news/world/article648189.ece (internal quotation marks omitted).
141. See Press Conference, Prime Minister of Ethiopia Meles Zenawi (June 26, 2007),
http://www.ethio
embassy.org.uk/Archive/PMo20Meleso2Zenawio2Press%/o2OConference /o27tho2OJune%/2200
6.html, (Last accessed 19 February 2009) ("[Y]ou have the messenger voice of the government of
Eritrea who has been actively involved in the fighting in Mogadishu. Theirs is not a specifically Somali
agenda. And finally, you have the jihadists led by Al-Ithad Islami, which I am sure you know, is
registered by the United Nations as a terrorist organization. And so, for us, the Islamic Courts Union is
not a homogeneous entity. Our beef is with Al-Ithad, the internationally recognized terrorist
organization. It so happens that at the moment the new leadership of the Union of the Courts is
dominated by this particular group. Indeed, the chairman of the new council that they have established
is a certain colonel who also happens to be the head of Al-Ithad. Now, the threat posed to Ethiopia by
the dominance of the Islamic Courts by Al-Ithad is obvious."); See also Clayton, supra note 141;
Ethiopian ParliamentAuthorizes Action Against Somali Islamists, TURKISHPRESS.COM (Nov. 30, 2006),
=
http://www.turkishpress.com/news.asp?id 153555.

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movements in the Ogaden region of Ethiopia, heightened142Ethiopia's threat and

strengthened its contention on the inevitability of an attack.
An even more threatening situation was the allegation that the officials of the
UIC divulged their intention of reuniting all Somali speaking regions around
Somalia, signaling the beginning of its vision to integrate the Somali people of
Ethiopia into mainland Somalia contrary to principles of international law. 143 As
one analyst familiar with the geopolitical dynamics of the region commented,
"some leaders in the [UIC], certainly including Hassan Dahir Aweys, wish to
reenergize the Greater Somalia concept by incorporating into Somalia those
Somali-inhabited parts of Ethiopia, Kenya, and Djibouti., 144 The Ethiopian
Parliament Resolution authorizing the government to take all legal and necessary
measures against invasion by the UIC contended that "the [UIC] ha[s] an
expansionist
1' 45
intent to annex the Somali-speaking parts of Ethiopia, Kenya and
Djibouti.
Despite these allegations and bold assertions by the UIC, some analysts
dismissed UIC's propaganda as empty rhetoric and held that the UIC was not a
viable threat to Ethiopia's territorial integrity and political independence at the
time of intervention. 146 In the words of former US Ambassador to Ethiopia,
Professor David Shinn:
The Ethiopian military is far more powerful than the militias of the
Islamic Courts, which cannot at this writing, pose a serious military
threat to the Ethiopian homeland, including the Somali-inhabited
Ogaden region. The Ethiopian military has the capacity to defeat
handily the Islamic Court militias inside Somalia in conventional
engagements. 147
In both the Nicaragua and Congo cases, the ICJ has failed to provide
guidance as to what constitutes an "imminent threat of armed attack" and expressly
stated that:
[R]eliance is placed by the Parties only on the right of self-defense in
the case of an armed attack which has already occurred, and the issue of
the lawfulness of a response to the imminent threat of armed attack has

142. See Clayton, supra note 141.

143. See Somalia: US. Government Policy and Challenges: Hearing Before the Subcomm. on
African Affairs of the Comm. on Foreign Relations, 109th Cong. (2006) [hereinafter Hearing]
(statement of Hon. David H. Shinn, Adjunct Professor, Elliott School of Int'l Affairs, George
Washington University), available at http://bulk.resource.org/gpo.gov/hearings/109s/34879.txt.
144. See id.
145. Zeray W. Yindego, Ethiopia'smilitary action against the Union of Islamic Courts and others
in Somalia: some legal implications,INT'L & COMP. L.Q., 2007, at 2.
146. See David Shinn, The Ethiopia-Somalia Conflict, NASRET.COM, 3 (Dec. 27 2006),
http://www.nazret.com/php/uploadnews/search.php?misc=search&subaction=showfull&id= 116742276
3&archive=&cnshow-news&ucat-&start from=&.
147. Id.

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2010 ETHIOPIA'S ARMED INTERVENTION IN SOMALIA

not been raised. Accordingly, the Court expresses no view on that

issue.148
Ethiopia holds that Eritrea's multifaceted actions in Somalia are aimed at its
territorial integrity and political independence. 149 It maintained that Eritrea trains,
arms, and hosts Ethiopian opposition armed groups, such as the Ogaden National
Liberation Front (ONLF) and the Oromo Liberation Front (OLF), with the
manifest desire to destabilize the stability of the Ethiopian state.150 To that effect, it
was indirectly using, at the relevant time, the UIC controlled territories of Somalia
as a launching pad and alludes to the United Nations Report to corroborate its
allegations. 51 More specifically, the Ethiopian government contended that Eritrea
was preparing for another round of armed confrontation as the UIC, foreign 15 2
jihadists, and other forces displayed their unflinching desire to attack Ethiopia.
Ethiopia contends the existence of ever mounting threat by pointing to the repeated
declaration ofjihad by the UIC and the increasing offensive capability of this force
with the material and military support from such countries as Iran, Egypt, Saudi-
Arabia and others.153
Indeed, the various threats facing Ethiopia at the time bring to mind the
surmounting risks that lie ahead. However, even though the cumulative effect of
these four factors could amount to a serious threat to Ethiopia's sovereignty, 154 it is
doubtful that the UIC and the foreign insurgent forces, at the time, presented a
danger so grave and imminent as to amount to a situation that is "instant,
overwhelming" and one that denied Ethiopia the choice of means and a moment
for deliberation. The relative advantage the Ethiopian army has over the UIC is one
such factor distancing the realization of any such eminence. 155 For the Ethiopian
government, however, given the political and legal circumstances ruling at the
time, failure to act would have simply mounted the risk. A delay would have only
postponed the threat, not averted it. This is precisely so because of the role-played
and the pressure exerted by Eritrea and the United States on their respective

148. Nicaragua, 1986 I.C.J. at 103, 195; see also Territory of the Congo, 2005 I.C.J. at 222, 143
(quoting Nicaragua).
149. See Blame Game Over Somalia Conflict, GLOBAL POLICY FORUM, Apr. 24, 2007,
http://www.globalpolicy.org/security/issues/ethiopia/2007/O413blame.htm ("Ethiopia's Minister of
State for Foreign Affairs Tekeda Alemu charged that "Eritrea is not simply supporting terrorism, it is
actively involved in terrorism in Ethiopia and our sub-region."').
150. See U.N. Sec. Council Comm., Rep. of the Monitoring Group on Somalia pursuant to Sec.
Council resolution 1676, 22-23, 26-27, 30, U.N. Doc. S/2006/913 (Oct. 16, 2006) [hereinafter U.N.
Sec. Council Comm. Rep. pursuant to resolution 1676]; see also Blame Game Over Somalia Conflict,
supranote 150.
151. See U.N. Sec. Council Comm., Rep. pursuant to resolution 1676, supranote 151, at 11 22-23,
28, 218. In its 2006 Report to the Security Council, the Monitoring Group announced the participation
of forces of Eritrea, OLF, ONLF and the UIC in the war leading to UIC's occupation of Kismaayo. The
MGO also reported the shipment of arms to ONLF, OLF and the UIC from Eritrea. Id.
152. Id. 222.
153. Id. 213.
154. Id. at 6.
155. See Id.1222.

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proxies to act and not delay.15 6 However, these political considerations, which
instigated and created a trump-mood over the legal requirements, do not seem to
create a state of necessity that is of itself "instant,157overwhelming, and leaving no
choice of means, and no moment for deliberation.,
In Territory of the Congo, the ICJ did not fird Uganda's action necessary,
even if Uganda was threatened by a non-state actor operating on the territory of the
Congo. 158 The Court and the applicant States have recognized the existence of an
armed attack against Uganda which the Court referred to as "series of deplorable
attacks."' 159 The fact that the rebel groups threatening Uganda's security received
support from the Sudan and launched an attack from the DRC did not change the
conclusion of the Court. The Court did not fird the threat grave enough as to
justify the resort to armed force against the territories of the Congo. 16 In this
judgment, the Court dismissed Uganda's claim to the exercise of its right to self-
defense on both counts of necessity and proportionality.1 61 Uganda told the Court
that it carried out a military operation on the Congolese soil with the sole purpose
of diffusing "the offensive capabilities" of FUNA, 162 an insurgent organization 163
allegedly bent on destabilizing Uganda using the DRC as a launching pad.
Rejecting Uganda's argument for the existence of a necessary condition that
justified a resort to force, the Court held that "the evidence did not support the
Ugandan claim to have been attacked or threatened on such a scale as to give rise
to a right to resort to military force in self-defense on the territory of the
Congo. , 164
In her analysis of the state of the law relating to the use of force post 9/11,
Professor O'Connell concludes that in the face of an obvious intention, on the part
of the enemy to continue to pose a threat, armed self-defense is legitimate.1 65 The
repeated declaration of a holy war might demonstrate an irrevocable intention of
the UIC to attack Ethiopia whenever it acquires the necessary military capability to
do SO. 1 6 6 However, the level of threat that the UIC posed against the Ethiopian
State is not as grave and imminent as to justify self-defense. The ICJ is clear in
holding that the "series of deplorable attacks" against Uganda do not 167
justify
Uganda's self-defensive measures against the insurgencies in the Congo.

156. See Clayton, supranote 141.

157. HYDE, supranote 140, at 122.
158. Territoryof the Congo, 2005 I.C.J. at 223, 147.
159. Id. 146.
160. Id.
161. Id. 147.
162. Id. 45.
163. Id. 120.
164. Id. 147.
165. O'CONNELL, supra note 5, at 10. Relying on resolution 1368/2001 and 1373/2001 of the
Security Council and the position of NATO member States, Professor O'Connell argues that whenever
there is a clear and convincing evidence that the enemy the intention or motive to continue to threat a
State, then the State is within its rights to defend it self by use of armed force. Id. at 9.
166. See U.N. Sec. Council Comm., Rep. pursuantto resolution 1676, supra note 151, 204.
167. Territoryof the Congo, 2005 I.C.J. at 222-23, 146-147.

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The other requirement relates to the existence of another alternative-a

"choice of means"-other than the use of an armed force that could have prevented
the necessity of self-defense. 168 One of the most resonating contentions advanced
by Ethiopia holds that the forces under the umbrella of the UIC and the Eritrean
government were working on the basis of a common design and motive to achieve
a common purpose-destabilizing and endangering the territorial integrity and
political independence of Ethiopia. 169 However, the UIC was not a proper
government and can hardly be dealt with by diplomatic or legal means. Ethiopia
claimed that it exhausted all diplomatic means available to avoid the confrontation
but to no avail. 170 Although the defacto character of the UIC and the impossibility
of pursuing a legal course against this force are true enough, the absence of this
condition alone does not constitute a condition of necessity justifying Ethiopia's
resort to force. Indeed, the Ethiopian government had serious security concerns at
the time.17 1 However, necessity as a justification requires an exceptionally higher
threshold of mounting peril that is instant, overwhelming and should be one that
does not leave any moment for deliberation. Ethiopia was certainly not under that
kind of situation at the time it went to war.
Ethiopia's contention that the UIC is acting as a proxy for Eritrea and that it is
providing a safe heaven to the Ethiopian rebel forces operating within Eritrea and 172
Somalia is supported by the findings of the UN Monitoring Group.
Accordingly, the official view holds that the only feasible recourse available is to
take a self-defensive measure against the forces that host and infiltrate what
Ethiopia deems as anti-peace elements into its territory and the stationing of
foreign jihadists on its border. 173 In the words of Ethiopia's Ambassador to the UK,
Mr. Birhanu Kebede, "the extremist forces have been training anti-Ethiopian
elements and infiltrating them to Ethiopia as well as repeatedly attacking
Ethiopia. 1 74 Ethiopia's Premier, Meles Zenawi, emphasized the link between the
attack against Ethiopia and the UIC when he accused the UIC of infiltrating anti-
Ethiopian rebel forces "sheltered in areas under its control."1 75 Outlining the effort
of the Ethiopian government to avoid military confrontation, the Prime Minister
said:

168. O'CONNELL, supra note 5, at 9.

169. See Blame Game Over Somalia Conflict, supra note 150.
170. See, e.g., Aregu Balleh, Ethiopia Will Continue to Seek Peaceful Options to Deal With UIC -
State Minister, ETHIOPIAN HERALD, Dec. 3, 2006, available at Westlaw 12/3/06 allAfrica.com
19:32:12.
171. See Ethiopia Has Genuine Security Concerns - U.S., ETHIOPIAN HERALD, Dec. 29, 2006,
available at Westlaw 12/29/06 allAfrica.com 18:09:04.
172. See U.N. Sec. Council Comm., Rep. pursuantto resolution 1676, supra note 151, 28.
173. See TFG Troops seize OLF Fighters, ETHIOPIAN HERALD, Dec. 23 2009 (on file with author)
(noting that the State media said: "Repeated attacks are being launched against Ethiopia by OLF, the
Ogaden Liberation Front (ONLF) and the fundamentalist forces under the Union of Islamic Courts-
forces that constitute the front of destruction created by Shaiebia.").
174. Ethiopian military operationdo not target people of Somalia, KILIL 5 ONLINE, Dec. 25, 2006
(2010-09-28 04:16 +0000), http://www.kilil5.com/news/5385_ethiopian-military-operation-do-&print
175. Meles says Ethiopia forced into war: PM Meles, KILIL 5 ONLINE, Dec. 26, 2006,
http://www.kilil5.com/news/5353 meles-says-ethiopia-forced-into- (last visited Oct. 9, 2010).

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[T]he group was told to withdraw the anti-Ethiopian forces it gathered

from the areas it controls, to stop sheltering these forces and infiltrating
them into Ethiopia, to lift the war it declared against Ethiopia and
address our differences through negotiation. 176
Therefore, to the extent that these forces are in the areas within the effective
control of the UIC and the UIC is not willing to see to the problem, Somalia is in
breach of its international obligation. 177 But Somalia is a failed state in which no
responsible government exists. 1 78 This unique paradigm of a failed state situation
coupled with the threat of extremist militancy revamps Ethiopia's position.
Although some may hold that the four factors do not to meet the requirements of
the law that seeks to allow force only as a measure of a last resort, the absence of
an internationally responsible actor within Somalia could be seen as an additional 179
factor that dispenses with the excessively restrictive regime of necessity.
Therefore, the failed state situation in Somalia and the cumulative effect of the four
factors that Ethiopia presented as creating what it called a situation of "clear and
present danger", could be seen to have created a state of necessity that allows a
temporary right to use a proportionate force to remove the threat not an all out
invasion.180
1 81
B. Armed Response Must be Proportional:The Proportionality Test
Thomas M. Franck marvelously captures the hub of the doctrine of
proportionality in the following terms:
The doctrine held that (1) any State resorting to war should calibrate its
response in proportion to the demonstrable wrong perpetrated against it,
and that (2) the means deployed as a countermeasure against a
perpetrator be proportionate to the minimum force necessary to achieve
redress. The doctrine was designed to ensure that States would not resort
to unprincipled and unnecessarily brutal violence under cover of
redressing an alleged wrong.182

176. ETHIOPIAN HERALD, Dec. 26, 2009, at Vol. LXIII, No. 091, p. 9 (on file with author).
177. Since the situation in Somalia is unusual and one marred by militancy and extremism on the
one hand and a failed-state-situation on the other, one might argue that the classical rule of international
law which required States to refrain from these acts may not fit neatly into the Somali paradigm. In
those cases, States might be justified in taking a proportionate response to an armed attack which
already occurred or already begun to occur. Nonetheless, the threshold of threat in this case is much
lower than required by the law. What exacerbated the situation more than the actual threat are the
hostilities of the parties towards one another and the existence of special interest by powerful nations
such as the United States.
178. See Quick Guide: Somalia's Islamists, BBC NEWS (last updated at 08:37 GMT, Thursday, 28
December 2006), http://news.bbc.co.uk/2/hi/africa/6043764.stm.
179. Franck, On Proportionalityof Countermeasures in InternationalLaw, supra note 83, at 763.
180. See Clayton, supra note 141 (internal quotation marks omitted).
181. Franck, On Proportionalityof Countermeasuresin InternationalLaw, supra note 84, at 715
("Put formulaically, most proportionality discourse occurs when A has done (or threatens to do) Xto B,
and B responds by doing Yto A. The issue then crystallizes as an inquest into whether counter-measure
Y is "equivalent" (i.e., proportionate) to X.").
182. Id. at 719.

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Proportionality is a principle of law inextricably tied to the principle of

necessity and requires the acts of self-defense to be proportionate to "the necessity
provoking them."1 83 The application of this abstract but insurmountably vital
principle to situations of military conflict has never been an easy task.
Proportionality, as a principle that governs both the resort to force and the means
and methods relating to the conduct of hostilities, remains one of the most
controversial principles that involves, to borrow from Thomas Franck, "an
awkward balancing of apples and oranges."' 184 However, the paramount need "to
prevent war but, failing that, to humanize the conflict as much as possible" makes
proportionality one of the most celebrated principles,
185
even an important conception
of law, constantly invoked in international law.
In Nicaragua, the ICJ declared the conduct of the United States as
disproportionate noting that:
[The] United States' mining of Nicaraguan ports and attacks on the
ports, oil installations, etc., do not satisfy the criterion of
proportionality. 'Whatever uncertainty may exist as to the exact scale of
the aid received by the Salvadorian armed opposition from Nicaragua, it
is clear that these latter United States
186
activities in question could not
have been proportionate to that aid.
In the Territory of the Congo, the Court did not find a right of self-defensive
measures by Uganda. 187 However, the Court proceeded to examine the
proportionality of the self-defense measures. On proportionality, the Court
pronounced that "the taking of airports and towns many hundreds of kilometers
from Uganda's borders would not seem proportionate... nor []be necessary.1 88
The principle calls for a right and sensible balance between the threat faced
and the response aimed at removing that threat.18 9 As various fact situations are
peculiar and present unique realities, the universe of proportionality remains
amenable to ambiguity. However, it must not succumb to unprincipled individual
evaluations justifying the use of brute force to aggravate the calamities of resort to
force and the ensuing war. What provoked Ethiopia's resort to force was not a
particular attack against its territory or a single threat against its national security.
As discussed in previous sections, the Ethiopian government identified a wide
range of potential threats including, but not limited to, the declaration of the holy
war against it and the Ethiopian rebels operating from within Somalia which,
according to the Ethiopian government, are working with common design and

183. Schachter, supra note 135, at 1637.

184. Franck, On Proportionalityof Countermeasures in InternationalLaw, supra note 83, at 716.
185. Id at 723.
186. Nicaragua, 1986 I.C.J. at 367, 211.
187. Territoryof The Congo, 2005 I.C.J. at 223, 147.
188. Id.
189. See David DeCosse, Lost in the 'Logic of War', SANTA CLARA UNIVERSITY MARKULA
CENTER FOR APPLIED ETmCS, http://www.scu.edu/ethics/publications/ethicalperspectives/logic.html
(last visited Sept. 26, 2010).

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purpose with the UIC and the Eritrean government. 190 Even if one finds Ethiopia to
be in a state of necessity, Ethiopia's occupation of cities and airports far away from
its borders cannot be a proportionate measure limited at removing the threat that
created the necessity of self-defense.
Ethiopia is certainly under a more threatening situation that justifies the resort
to force compared to Uganda. Uganda could have probably averted the danger
posed to its territorial integrity and political independence by working with the
DRC, or failing that, bringing the issue to the Security Council to seek
authorization in exercising its right to self-defense. Also, Uganda could have
brought the DRC before the ICJ alleging its failure to prevent the rebels from using
its territory for illegal activities aimed at endangering its sovereignty. Ethiopia, on
the other hand, did not have any such choice as the UIC is not a recognized
international actor despite its de facto control of a large portion of the Somali
territory and could not have been stopped through such means. 191
On proportionality, like Uganda, Ethiopia has occupied cities and an airport
far away from its borders.192 After removing the UIC from Mogadishu and other
major towns of Somalia, Ethiopia made its withdrawal contingent upon the
deployment of an African Union peacekeeping force. 193 According to Ethiopia, it
remained in Somalia to assist the internationally recognized transitional
government without an international mandate, and to also ensure that the terrorists
will not return to the position that they were held before they were driven from the
capital. 194 The elimination of the threat against its stability requires the restoration
of peace and an effective government in Somalia. If Somalia remains an insecure
region, it could continue to pose a threat to the peace and security of Ethiopia and
the region.
Writing on the proportionality of self-defensive measures, Oscar Schachter
reached the conclusion that a State that suffered a frontier attack does not "bomb
cities or launch an invasion."' 195 Ethiopia, even if it was under an actual armed
attack at the relevant time, cannot proceed to the hinterlands of Somalia and
remain there for a period of two years in the exercise of self-defensive measures
aimed at removing the danger that created a state of necessity. As stipulated in
Caroline,the necessity of self-defense must be limited to removing the danger that
created the condition of necessity. 196 If Ethiopia's defense has rested on its inherent

190. See TURKISHPRESS.COM supranote 142.

191. See Somalia - Amnesty International Report 2007, AMNESTY INTERNATIONAL,
http://www.amnesty.org/en/region/somalia/report-2007 (last visited Oct. 8, 2010).
192. See U.N. Security Council, Report of the Secretary-Generalon the Situation in Somalia, 2-
5, U.N. Doc. S/2007/115 (Feb. 28, 2007).
193. See Ethiopia 'Bogged Down' in Somalia, BBC, GLOBAL POLICY FORUM, Nov. 27, 2007,
http://www.globalpolicy.org/component/content/article/199/40868.html; Jason McLure & Hamsa
Omar, Ethiopia Agrees to Withdraw Troops from Somalia, BLOOMBERG, Oct. 27, 2008,
http://www.bloomberg.com/apps/news?pid=newsarchive&sid=ao7G53sBBsXY&refer-home.
194. See Ethiopia PM,US Intelligence Committee Discuss Terrorism, Somalia, SUDAN TRIBUNE,
Feb. 22, 2007, http://www.sudantribune.com/spip.php?article20382.
195. Schachter, supra note 135, at 1637.
196. See British-American Diplomacy: The Caroline Case, Enclosure 1-Extract from Note of April

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right to self-defense and lawful self-defense is accompanied by adherence to the

principles of necessity and proportionality, even if we assume that Ethiopia has
faced an imminent peril to its "essential interests" and hence under a necessary
situation that justifies the use of force, Ethiopia's response goes way beyond what
is necessary to avert the danger and is disproportionate to the threat posed against
its territorial integrity and political independence.
What is interesting, also striking as odd, is the silence of the Security Council,
the General Assembly of the UN, and the African Union in the face of what seems
to be a disproportionate use of force against the territorial integrity and political
independence of Somalia. These organs have envisioned the TFG and the TFG
Charter as the only path to the restoration of peace and stability in Somalia.1 97 At
the same time, the TFG supported the Ethiopian intervention, 198 which could not
have existed had it not been for the protection extended to it from Ethiopia.
Politically speaking, Ethiopia's measure to intervene and remain in Somalia seems
to have accorded with the interests of these international and regional
organizations. 199 However, these organs have not expressly authorized Ethiopia to
20
act as it did and nor did they condemn its action.200 In fact, speaking in retrospect,
the Ethiopian Prime Minister said "the United Nations Security Council did not put
into question the measure we took in self-defense. Similarly various [g]ovemments
in different parts of the world have supported our right to self-defense and have
refrained from putting out any kinds of declarations which might have put into
question our inherent right of self-defense., 20 1 Does the concurrence of will
between Ethiopia and these organizations, the positing of the issue as essentially
part of the global war on terror by both Ethiopia and the United States, and the
attendant silence of the Security Council remove the de-legitimizing aspects of
Ethiopia's military action? Is international law moving to the recognition that the
gravity of the danger and potential threat posed by acts of terrorism, the most
acclaimed problem of the first decade of the 21st century, is subject to a lighter
standard of necessity and proportionality? These are among the problems
international law must confront head-on in the times to come.
Whatever political significance one might ascribe to Ethiopia's decision to
push into the heartlands of Somalia and remain there for two years,20 2 its action
does not appear to be legally proportionate to the needs that triggered the self-
defensive measure. Ethiopia might contend that it has done so to offer the Somali
people the chance to reconcile, solve their differences and form a government.

24, 1981, YALE LAW SCHOOL AVALON PROJECT, http://avalon.law.yale.edu/19th century/br-

1842d.asp#web2 (last visited Sept. 27, 2010).
197. See AMNESTY INTERNATIONAL, supranote 192.
198. See Fanta, supranote 1.
199. See AMNESTY INTERNATIONAL, supranote 192.
200. See id.
201. Prime Minister Meles Zenawi, Ministry of Foreign Affairs of Ethiopia, Speech to the
Parliament (Jan. 2, 2006) available at http://www.mfa.gov.et/Press Section/publication.php?Main_
Page Number=3311.
202. See Sophia Tesfamariam, Somalia: Two Years After the US-Backed Invasion and Occupation,
AM. CHRONICLE, Dec. 4, 2008, http://www.americanchronicle.com/articles/view/83924.

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DENV. J. INT'L L. & POL'Y VOL. 39:1

Indeed, one could argue that Ethiopia created an ample opportunity for the Somalis
and the international community to work towards the creation of an effective and
inclusive Somali government. As complex as Somalia's political problems may be,
an international coalition could have provided a better political and/or military
solution to Somalia's decades of lawlessness. Even in this light, the best
designation that could probably describe Ethiopia's action might be that used in
justifying the illegal bombardment of Kosovo by NATO-may be illegal but
justified.
V. CONCLUSION
The legality of Ethiopia's military intervention in Somalia presents a complex
maze of dilemmas dictated by the realities of a failed state scenario and a modem
threat of terrorism. Ethiopia claims that the invitation by the legitimate and
recognized government of Somalia and its lawful right to collective and individual
self-defense justified its military intervention. 20 3 Examining the validity of these
claims involves an appreciation of highly contested facts and unverifiable
allegations.
Ethiopia argued that its actions are consistent with the letter and the spirit of
Article 2(4) since it amounted to a lawful exercise of the right to individual and
collective self-defense under Article 51 of the Charter.20 4 Although Ethiopia did
not insist on the existence of a significant armed attack, without ruling out the fact
that an armed attack existed, it claimed that a combinations of four factors have
created a condition of "clear and present danger" against its territorial integrity and
political independence: a) the presence of Eritrean troops, a country with an
entirely non-Somali agenda in Somalia; b) the consolidation of power in the hands
of radical Islamic militants part of whom Ethiopia considers as "terrorists" with the
manifest intention of annexing Somali speaking region of Ethiopia; c) UIC's
declaration of a holy war against Ethiopia; and d) the presence of armed Ethiopian
and other foreign forces working with common design and purpose with the
UIC.20 5 Along with the declaration of the Holy war, Ethiopia sees individuals
°
within the UIC leadership as a greater threat than the UIC itself 206 Explaining this
distinction, the Ethiopian government pinpoints to Sheik Hassen Dahir Aweys,
once head of the Al-Itihad, an organization on the United States' list of terrorist
organizations and the man that Ethiopia holds responsible for terrorist acts in its
territories. 207
It contends that the cumulative effect of all these factors put Ethiopia in a
state of necessity that justified self-defense in anticipation of an eminent and
overwhelming attack. Though the standard of what is instant and overwhelming is

203. See Prime Minister Meles Zenawi, supranote 202.

204. See William A M Henderson, The Use Of Force In Somalia And Issues Relating To The
Legality Of Ethiopian And United States Intervention, OPTICON, Spring 2008, at 1, 2, 4, available at
http://www.ucl.ac.uk/opticonl826/archive/issue4/ArtLawsHendersonSomaliaIntervention Pub.pdf.
205. See sources cited supra note 143.
206. See Joseph Winter, Profile: Somalia's Islamist leader, BBC NEWS (Friday, 30 June 2006,
07:39 GMT) http://news.bbc.co.uk/2/hi/5120242.stm.
207. Id.

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very subjective, the cumulative effect of these threats coupled with the failed State
dynamic in Somalia, could be seen to create a state of necessity grave and eminent
enough as to trigger the right to self-defense. However, Ethiopia's armed
penetration deep into the heartlands of Somalia and its occupation of Mogadishu
and other cities, was not in any way proportional to the danger posed against the
Ethiopian state and goes beyond removing the threats that created the necessity of
self-defense. Therefore, on the issue of proportionality, Ethiopia's action goes
beyond what is strictly required under the circumstances to avert the danger posed
against it and hence contravenes one of the conditions for lawful self-defense
under international law.
However, one should also appreciate the nature of the danger Ethiopia faced:
a complex mix of threat posed by Eritrea and UIC, and its own political interests to
wipeout armed opposition groups that operate from within Somalia. 20 8 Ethiopia
being an important ally of the Bush administration on the global war on terror, 209
there is also a global political dimension to the conflict which may explain why
most states have failed to question the legality of the war or require a debate in the
Security Council or elsewhere. Ethiopian government officials have echoed the
notion that Ethiopia's security and respect for its territorial integrity and long term
political independence anticipates the stability of Somalia. 210 They argued that
unless Somalia becomes a stable, democratic and responsible partner in the
international system, it will remain a breeding land for "terrorism" and will
continue to pose a threat not only to Ethiopia and the region but also to the
international community. 211 One could probably attribute the silence of the
Security Council, the General Assembly, and the African Union to the recognition
of this claim or the meeting of minds on this point.
In conclusion, Ethiopia's claim to self-defensive measures does not seem to
be in line with the requirements of the UN Charter because it fails to meet the
requirement of an occurrence of an attack of a significant scale and effect before
recourse to the self-defensive measure. Under customary international law,
although Ethiopia could be seen to be under an imminent threat of attack triggering
the right of recourse to a proportionate response, it certainly went beyond what is
necessary to remove the threat and used a disproportionate force.

208. See Prime Minister Meles Zenawi, supra note 202.

209. Shashank Bengali, Rice's Visit to Ethiopia Puts Focus on Ally Accused of Human Rights
Abuses, MCCLATcHY NEWSPAPERS (December 04, 2007 08:11:05 PM), http://www.mcclatchydc.com/
2007/12/04/2256 1/rices-visit-to-ethiopia-puts-focus.html.
210. See Prime Minister Meles Zenawi, supra note 202.
211. See sources cited supra note 143.

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