Defining State Failure Under International Law: A Case Study of Somalia 

by T. Alexander Martin  Spring 2019

Severe natural disasters and a protracted civil war in Somalia contributed to the collapse of the rule of law and state institutions within the country. The humanitarian crisis that resulted from the endemic violence within the country prompted a United Nations intervention led by the United States military, tasked with creating a stable security environment that would allow for the supply of aid. The absence of working governmental institutions in Somalia would also provide the reasoning for its labeling as a “failed state” during much of the 1990s. While there exists no definitive understanding of what constitutes a “failed state”, the underlying characteristics attributable to state failure have significant legal and political consequences. However, Somalia’s lack of a representative federal government made the application of relevant legal regimes necessary for a military intervention and the prosecution of crimes under international law problematic. This is due to the fact that the existing bodies of international law concerning state responsibility and intervention were created under the presumption that states possess the capacity to interact with the international community that perpetuates those laws. This essay will analyze the ways in which the current relevant international legal frameworks were applied effectively to the case of Somalia and where they were found to be inadequate in dealing with state failure.

1 BBC News (2018).

2  Ismail (2012).

3 BBC News (2018).

The Atlantic (2008).

The Atlantic (2008).

Ibid.

Ibid.

11 Rotberg (2016).

14 Thurer (1999).

16 Menkhaus (2007).

18 Ibid.

20 Pejic (2001).

22 Ibid.

26 Ibid.

28 Thurer (1999).

29 Ibid.

     The Horn of Africa and, specifically, the area understood as modern-day Somalia, has been home to civilizations dating back to antiquity. Beginning in the 13th century, Somalia was ruled by a single sultan but eventually devolved into smaller regional sultanates that continuously vied for power1.  Despite this lack of governmental uniformity, Somalis are considered to be one of the most homogenous peoples on the African continent with respect to ethnicity, culture, religion, and language2.  However, the trend of fractured governmental control within Somalia would continue throughout much of the 19th century and early 20th century, as France, Britain, and Italy carved out territories in eastern Africa for colonial expansion.

            It was not until 1960 that the two territories under British and Italian proctorship (known at that time as British and Italian Somaliland respectively) gained formal independence and formed a contiguous sovereign nation under the United Republic of Somalia, with Aden Abdullah Osman Daar as president3.  However, the stability of the new government would be short-lived, as the following president, Abdirashid Ali Shermarke, was assassinated shortly after taking office. A successful military coup ensued, placing Muhammad Siad Barre in power under the newly established Somali Democratic Republic. Barre’s military dictatorship would re-make Somalia into a socialist state and nationalize much of its economy. Over the next two decades, under Barre’s authoritarian rule, Somalia experienced severe drought leading to widespread famine, violent conflict, both internally as well as with neighboring Ethiopia, leading to strong opposition against his regime4. This discontent would reach its boiling point, in 1991, when a coalition of opposition clans deposed Barre. The subsequent power vacuum left by Barre’s government plunged the country into a civil war, as warlords jockeyed for power, resulting in the deaths of thousands of Somali civilians5.

            The lack of a unified federal government during this period prompted many in the international community to consider Somalia as a “failed state.” In 1992, the escalation of violence and high civilian death toll within the country led the United Nations Security Council (UNSC) to pass Resolution 794, which reaffirmed the intent of the five previous resolutions passed regarding humanitarian concerns in Somalia. In addition to calling for a ceasefire between the local warring parties, Resolution 794 created the United Task Force (UNITAF), a coalition of peacekeeping forces tasked with providing a secure environment to allow humanitarian aid to reach the country. Citing the potential threat to international peace and security that the war in Somalia posed to the rest of the world, UNITAF was given a Chapter VII mandate, authorizing it to use armed force where necessary to accomplish its mission. The United States (U.S.), headed by then-president George H.W. Bush, offered to take command of peacekeeping operations in Somalia under “Operation Restore Hope.” Although the operation experienced some intermittent success, the conflicts between two of the most dominant southern warlords, Mohamed Farah Aidid and Ali Mahdi Mohamed, continued to intensify. As a result, the UN Secretary-General, Boutros Boutros-Ghali, recommended that UNITAF operations be transitioned into the United Nations Operations in Somalia II (UNOSOM II), which was established by Security Council Resolution 814 and would extend the Chapter VII mandate under which the current peacekeeping forces were operating6. It was during this time that U.S. forces, in conjunction with United Nations (UN) peacekeeping troops, undertook a disarmament operation against militia forces in southern Mogadishu as well as an attempted capture of General Aidid. During the course of the operation, Somalian militias shot down two U.S. military helicopters, resulting in the deaths of 18 U.S. soldiers. This event became a turning point in UN peacekeeping operations, as the bodies of the U.S. soldiers who were killed were publicly displayed and televised, causing international outrage7.  UNOSOM II’s inability to create a secure environment or broker a permanent peace between Aidid and Mohamed forced the UN to reassess its operations in Somalia and, eventually, to pull out completely.

            The years following UNOSOM II’s withdrawal would see the creation of the Transitional National Government (TNG), later renamed the Transitional Federal Government (TFG), as well as the rise of the conservative Islamist organization, the Islamic Courts Union (ICU). The TFG, in coordination with Ethiopian forces, would be successful in pushing the ICU out of many of their strongholds within the country for a time. However, other hardline groups would splinter off from the ICU, giving rise to new extremist groups, such as Al-Shabaab8. The TFG would eventually fail in its mission of trying to end the almost two-decade-long civil war and, instead, a protracted and violent conflict would linger on between pro-national government forces and Islamist rebel groups. In 2012, a coalition force made up of Kenyan, African Union, and Somali government troops would defeat the majority of Al-Shabaab forces controlling the southern portion of the country9. Although this victory allowed for the formation of the first Somalian parliament since the 1960s, it was far from marking an end to internal strife within the country, nor did it indicate a strong and stabilizing government presence for the years to come.

            During this second period in Somalia’s civil war, there would also be a significant surge in piracy incidents off its coast. The high cost to global trade and continuous violations of the United Nations Convention on the Law of the Sea (UNCLOS) provisions regarding piracy caused serious concern among many UN member countries. In response, the UN Security Council adopted Resolution 1838, which called on member states with the necessary naval and air capacities to combat piracy off the coast of Somalia in accordance with Chapter VII of the UN Charter10. The strong military response from member country’s navies would prove effective in stemming the onslaught of increasingly sophisticated and bold acts perpetrated by Somali pirates in the Gulf of Aden and the Arabian Sea.

While, by no means an exhaustive chronicle of Somalian history over the past 50 years, this general historical context lays the groundwork for answering the question of how various international law regimes have been applied to the specific case of Somalia, especially with regard to intervention and state responsibility in a so-called “failed state.” The core analysis of this essay will attempt to parse out the instances where the international legal frameworks, currently in place, were able to achieve their desired effects in the Somalian case, and where they inevitably fell short.

 

                                                The “Failed State” and its Implications

 

            The concept of a “failed state” is difficult to define, both in a political and legal sense. There is no universally accepted standard that exists within any body of international law that definitively sets out the criteria for state failure and, therefore, no specific legal regime established for dealing with its consequences. The concept, itself, is heavily debated among international law and political science scholars alike. Many of these scholars believe that state failure has clear, identifiable indicators, such as the failure to provide public goods or a loss of legitimacy and thus, can be easily categorized as such11. However, other scholars refute this idea on the grounds that the metrics used to understand what constitutes a failed state, whether it be the level of internal conflict or state capacity, are often too varied and case-specific to warrant a term that is as broadly applicable as the current usage denotes12. The Fund for Peace, which produces an annual report ranking countries based on their potential for collapse (formerly known as the Failed States Index), has even abandoned the term altogether and adopted the less controversial term, “fragile states.”

            Nevertheless, for the purposes of this essay, a general understanding of the term is necessary to provide context for the analysis of the Somali case with relation to international legal regimes. To this end, Daniel Thürer, an international law professor at Zurich University, asserts that a “failed state” is a situation involving, “the implosion of structures of power and authority, a collapse of law and order and the absence of institutions capable of representing the state13. Thürer understands a “failed state,” not as a specifically defined concept, but as an all-encompassing label for a political phenomenon that can account for a wide variety of underlying causes14. It is also important to note that, in state failure, be it Thürer’s interpretation or otherwise, the legal personality of the state continues to exist15. A state’s inability to exert its legal authority over its citizenry does not strip it of its status as a sovereign nation under international law and the rights and obligations conferred therein15. International law provides very few, if any, well-defined mechanisms through which a state can be legally dissolved, as the enduring nature of the state provides the premise for the oft-cited legal principle of sovereignty. 

            The reason for this attempt at defining a “failed state” is to have a better understanding of its implications vis-à-vis international law. Somalia is considered by many prominent scholars in the field of political science to fit the aforementioned criteria of state failure following the ousting of Barre and the country’s descent into civil war. The country’s central governmental authority ceased to exist for all intents and purposes, as it could no longer provide security for its people through a functioning police force or military, the flow of goods into and out of the country halted due to increasing conflict, and all relevant civil institutions crumbled. The general lawlessness within the country created a culture of banditry and the lack of accountability led to wide-spread corruption among the few officials that remained in power16. In addition, the intense inter-clan warfare that characterized much of Somalia’s civil conflict not only left hundreds of thousands of Somalis dead, but also resulted in many unprosecuted war crimes and crimes against humanity. In addition, the banditry and violence born of the state’s collapse spilled over Somalia’s borders in the form of piracy and terrorism. The international community, namely the UN, saw this degradation of state legal authority and understood its potential to wreak havoc regionally within Africa and, potentially, beyond, with the ever-increasing threat of violent piracy.

            International law and the legal regimes contained within it are the primary tools that the international community can employ to rectify such threats to security and peace. However, the Somalia case is problematic because its government and institutions have failed, and most well-defined bodies of international law are centered on the concept of the state having legal responsibility. This begs the question: how does international law apply to a state that has no centralized legal authority within its own borders and, consequently, no recognizable legal representation within the international community? The following sections will attempt to answer this question by examining the current legal regimes regarding intervention and state responsibility, as they were applied to the Somalia case.

 

                                                            Intervention in Somalia

 

            The Montevideo Convention codifies the legal principle of statehood under customary international law and lays out its criteria as the following: a permanent population, defined territory, government, and capacity to enter into relations with other states17. Although Somalia may have failed this test for statehood during its period of civil war, at one point, it met these criteria and the international community recognized it as a state, meaning that its legal personality endured, even if its institutions did not. Therefore, as a recognized “legal person” under international law, intervention into its internal affairs would be prevented due to its sovereign nature, as per Article 8 of the Convention18. This would mean, that in order to circumvent this widely accepted principle of international law, certain legal regimes would need to be applied that were designed to deal with situations involving dire internal strife, requiring outside intervention to achieve resolution. In the Somalia case, the argument for intervention was made on the grounds of humanitarian concerns. As the UNSC is the only international legal body recognized as having the authority to authorize humanitarian intervention and the Somalian government was unable to give consent to intervene on its behalf, the UNSC was left to decide the merits. The Security Council’s decision to adopt Resolutions 794 and 814 in 1992 and 1993 respectively, gave peacekeeping forces a Chapter VII mandate and was an important event in the realm of international law. Although international law does not utilize legal precedent as a way of establishing legal regimes, this decision demonstrated that humanitarian law can and, in some cases, should be prioritized over the sovereignty of a state.

            In addition to having the legal authority to initiate an intervention into a country that lacks the ability to consent, the UN mission needed to show that there were habitual and gross violations of human rights occurring in Somalia and that it was intervening to prevent further such violations. Somalia, during this time, suffered from an intense drought that caused widespread famine, which was, in turn, exacerbated by the rampant raiding of aid caravans by roaming militias19.  This prevention of aid delivery and the large-scale killing of non-combatants was a clear violation of international humanitarian law20. The well-documented violations on the ground provided the UN (in coordination with the U.S.) with the necessary motive to undertake an intervention on humanitarian grounds and the Somali government’s inability to act, provided them with the necessary reasoning to proceed without state consent.

            The overall success of UNITAF and UNOSOM II’s mission in Somalia is debatable. It is clear that the UN and U.S. operations were beneficial for many Somali citizens because of the aid they were able to deliver to a starving population.  U.S. and UN peacekeeping presence also played a pivotal role in alleviating some of the other humanitarian concerns within the country21.  However, that aid only reached certain parts of the country and was still vulnerable to interception by hostile local forces. In addition, peacekeeping operations were never able to create a stable security environment within Somalia and thus, in this respect, failed in their mission22.  Nevertheless, in terms of the UN’s ability to apply international humanitarian law and its related principles to mobilize an interventionist force into a country that lacks the necessary capacity to resolve the situation itself, it appears to have been an unmitigated success.

 

                                State and Individual Responsibility under International Law

 

            Somalia’s status as a “failed state” following the Barre administration presented significant challenges for the application of international law. Liability for breaches of international law is generally understood to rest with the state, namely if the breach is perpetrated by an official government agency or an individual acting in an official capacity on behalf of the state. This understanding of liability and, thus, accountability, inevitably breaks down when considering the qualities inherent in a “failed state23.”

            As mentioned before, the legal personality of the state continues, despite any internal collapse of government that may occur. This, in turn, would mean that the state continues to have legal liability for violations of international law. However, when a government collapses and its institutions fail, it loses the power to act. The government no longer held a monopoly on legal authority and was left with no recourse to correct or prevent any breaches of international law, perceived or otherwise24. This is not to say that international law cannot account for countries in a state of crises or heightened conflict, such as in a civil war. There are provisions within the bodies of international law concerning state responsibility that can attribute unlawful acts committed in the service of orchestrating a regime change or coup to the successful group that has established the new government. In this respect, the legal regime governing these types of crises is clear in its assignment of responsibility25. However, where the central governing authority lacks any discernable ability to act, the body of law is less robust. Thürer, again, provides some clarity on this subject by pointing to the idea that state responsibility is predicated on the notion of a state possessing the necessary institutions or officials in power to exert its authority. He posits that without these crucial elements of government, the state cannot be held responsible for violations of international law committed within its territory26. This understanding would seem to hold weight in the case of Somalia as it would be impossible, from a legal standpoint, to hold the state responsible for violations of international law when it has no legal mechanisms or even personnel, in positions of power, to enact any preventive or corrective measures. The vast majority of humanitarian crimes committed in Somalia (aside from the short-lived TFG) were perpetrated by individuals or militias in service of local warlords27.  If Thürer’s interpretation is true, then this would mean that the legal regime, governing state responsibility in international law, could not attribute these violations to the state, but rather would need to assign individual culpability.

            The concept of the international community calling on states to persecute individuals or having an international legal body, such as the International Criminal Court (ICC) to indict individuals for certain criminal acts is relatively new in international law28. However, the body of international criminal law involving individuals is fairly well-developed and in the case of “failed states,” it is particularly helpful in understanding responsibility. The body of law has grown in perceived strength and enforceability over the years after the Yugoslav Wars with the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY). The ICTY successfully indicted and prosecuted 161 prominent military leaders responsible for acts of genocide and crimes against humanity during the conflicts in the former Yugoslavia29. The ICC has similarly played an important part in establishing individual accountability for actions deemed to be in violation of international criminal law30. These ad hoc criminal tribunals or the involvement of the ICC could be used to effectively replace the legal systems of countries in a state of failure, such as in Somalia.

            However, while this is a theoretically straightforward solution to the challenge of legal responsibility within a “failed state,” in practice, it is much more complex. The lack of a centralized governing authority or functioning institutions means that there is no agency available to work in tandem with the relevant international law bodies. Somalia’s lack of legal authority may relieve it of liability at the state level, but it would also make arresting and prosecuting individuals exceedingly difficult. Additionally, these enforcement functions would most likely need to be taken over by a third party, which would only further complicate the process as considerations toward sovereignty, extradition, and jurisdiction would need to be considered due to Somalia’s enduring legal status as a state. So, while international criminal law may provide some potential for deciding criminal responsibility in a lawless country such as 1990s Somalia, it may fall short as an effective legal regime. 

 

                                                                           Conclusion

 

            Somalia has experienced multiple natural disasters that have displaced or killed thousands of people and a protracted civil conflict that has spanned almost 30 years, all of which contributed to the collapse of its government and subsequent label as a “failed state.” The absence of a stable governmental authority to exert legal control over its territory has made the application of relevant international legal regimes that were established for the preservation of peace and security problematic. However, strong treaty law and the addition of Security Council resolutions have allowed some of these legal regimes to enjoy effective implementation despite the dissolution of domestic institutions inherent in “failed states.”

This effective implementation of legal regimes was illustrated by the UN’s ability to quickly mobilize and execute peacekeeping operations by citing the necessity of an intervention based on humanitarian grounds. Similarly, international criminal law regarding responsibility holds great promise for use in Somalia, despite the inability to place criminal liability on the state. However, while individuals can be held responsible for internationally unlawful acts, the difficulty will inevitably be found in effectively indicting and prosecuting those individuals. This is an issue that is also present in the application of legal regimes governing piracy off the coast of Somalia. While the authority of nations to engage in anti-piracy operations has been substantially expanded beyond the fairly narrow scope contained in UNCLOS through a series of strong resolutions and novel application of other relevant conventions, the increasing strength of enforcement could place it in conflict with other bodies of law. Although international legal regimes, currently in place, were adequate for alleviating some of the legal challenges presented in the Somalian case, the shortfalls highlight a need to expand the relevant bodies of law in order to better cope with the complex legal issues presented by state failure.

 

                                                                      REFERENCES

1. BBC News, Somalia Profile- Timeline BBC News (2018),www.bbc.com/news/world-africa-14094632.

2.  Annabel Lee Hogg, Timeline: Somalia, 1991-2008, The Atlantic, 2008,

              www.theatlantic.com/magazine/archive/2008/12/timeline-somalia-1991-2008/307190/.

3.  International Relations and Security Network, International Law and the Problem of Failed States: A Case of     

             Ambiguities, 1–2 (2012).

4.  Abdirashaid A. Ismail, Somali State Failure: Players, Incentives and Institutions, 212 Economics and Society 9–

             18 2012).

5.  Maja Janmyr, The Legal Aspects of Humanitarian Intervention Based on the Intervention in Somalia, 1–21

             (2009).

6.  Ken Menkhaus, Governance without Government in Somalia: Spoilers, State Building, and the Politics of

            Coping,31 International Security 74–106 (2007).

7.  Montevideo Convention on the Rights and Duties of States, (1933).

8.  Jelena Pejic, The Right to Food in Situations of Armed Conflict: The Legal Framework, 83 1–14 (2001).

9.  Rome Statute of the International Criminal Court, (1998).

10.  Robert I. Rotberg, Failed States, Collapsed States, Weak States: Causes and Indicators The Brookings

           Institute (2016), www.brookings.edu/wpcontent/uploads/2016/07/statefailureandstateweaknessinatimeofterror_chapter.pdf

11.  So Much to Fear’ | War Crimes and the Devastation of Somalia.” , (2015),

           www.hrw.org/report/2008/12/08/so-much-fear/war-crimes-and-devastation-somalia#.

12.  Daniel Thurer, The ‘Failed State’ and International Law (1999),

            www.icrc.org/en/doc/resources/documents/article/other/57jq6u.htm.

13.  United Nations, UNITED NATIONS OPERATION IN SOMALIA II (1997),

            www.un.org/Depts/DPKO/Missions/unosom2b.htm.

14.  UNSCR, Security Council Resolution 2147 United Nations Security Council Resolutions(2008),

          unscr.com/en/resolutions/1838.

15.  Matia Vannoni, Failed States and Failed Theories: the (Re)Securitization of Underdevelopment, University of

          Trento 2–32 (2011).

© 2019 by The Law Review at Johns Hopkins.

All rights reserved.

Ibid. 

 United Nations (1997).

10 UN Security Council Resolution 2147 (2008).

12 Vannoni (2011).

13 International Relations and Security Network (2012).

15 International Relations and Security Network (2012).

17 Montevideo Convention on the Rights and Duties of States (1933).

19 Janmyr (2009).

21 UNITED NATIONS OPERATION IN SOMALIA II (1997).

23  Thurer (1999).

24 Ismail (2012).

25 Thurer (1999).

27 Human Rights Watch (2015).

30 Rome Statute of the International Criminal Court (1998).

The editorial staff of The Law Review at Johns Hopkins does not endorse the opinions expressed in individually published articles.

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