a ‘commerce-based’ alternative
Revising the U.N. Trusteeship System — Will It Work?
By Harry A. Inman
and Walter Gary Sharp, Sr.
The authors, both attorneys with international experience, bring to bear on their analysis first-hand knowledge of Somali leaders and UN operations in Somalia. Their remarks respond to those of Amb. Edward Marks, whose article Transitional Governance: A Return to the Trusteeship System appeared in the Winter 1999 issue of this journal.
NB: It bears repeating that the ideas and opinions expressed are those of the authors and are not necessarily shared by this journal.~ Ed.
In his analysis, Ambassador Marks suggests the need for the international community to search for a structure of governance that would assist and strengthen a country experiencing internal and civil turmoil, guide it through an unstable transition period, and allow it finally to reach a mature condition of governance in the world community. He is aware that some authorities do not consider the past League of Nations mandates system and the United Nations international trusteeship system as successes or the type of structures needed in today’s environment. Ambassador Marks described in his article how the international community, as an alternative to the trusteeship system, has attempted peacekeeping missions where the United Nations “aggressively interfered” in the internal affairs of member states such as in Cambodia,1 Somalia, Haiti, the successor state of the former Yugoslavia, Rwanda, Georgia, and Iraq — all with varying success.
In his conclusion, Ambassador Marks asserts that the world community must assume responsibility in international and internal conflicts, and that the United Nations is the most effective institution to accept this responsibility because of its consensual base. He suggests that the principle of a trusteeship system should be revisited with variations, even perhaps to supplement peacekeeping activities.
The authors of this presentation believe that the international community has all the legal authority it needs to shape a solution to humanitarian crises and armed conflicts around the world. The real difficulty is gaining a consensus within the international community or the Security Council on what should be done and how resources will be provided.
The failure of the international community to act in the past has not been the lack of legal authority to implement an agreed-upon and resourced solution. To the contrary, it has been the international community’s unwillingness to act or inability to decide what should be done that has allowed hundreds of thousands either to die of starvation or to be slaughtered by powerful forces within their borders, official or otherwise. Should the international community desire to adopt a variant of the League of Nations trusteeship system or conduct a peacekeeping or peace enforcement mission or some combination of those options, the Chapter VII coercive authority of the Security Council provides all the legal authority needed. What is lacking is the will and capability of the international community to address these issues — and its ability to do so in such a way that maintains the support of the population it is trying to help. The international community simply needs the financial resources, personnel, and will to address the humanitarian crises and armed conflicts that still plague the twentieth century.
We do, however, strongly agree with Ambassador Marks that the United Nations must accept and act upon its responsibility to maintain international peace and security more aggressively than it has in the past —- and it must struggle to find the will and appropriate legal regimes to assist governments in need to maintain domestic peace and human rights, as well as to promote the political, economic, social, and educational advancement of all the peoples in the world. Indeed, we assert that the international community has imposed an obligation upon the Security Council to determine what constitutes “any threat to the peace, breach of the peace, or act of aggression” and an obligation either to make recommendations or decide what measures shall be taken to maintain or restore international peace and security.2 The United Nations must participate in any remedial steps, whether under a variation of the mandate or trusteeship systems, peacekeeping, or some other alternative. The extent and type of such participation and mechanism of intervention, however, should be tailored to the circumstances that caused the ailing country’s problems, as well as other religious, political, cultural, and economic factors.
The mandates and trusteeship systems as they were structured do not seem to fit the needs of the current situations of internal and civil turmoil. In fact, the practical relevance of the mandate and trusteeship systems has now long passed. The mandates system was created at the end of World War I to administer the former colonies and dependent territories of the German and Ottoman Empires, and the trusteeship system was designed at the end of World War II to serve as a transition for all remaining colonial territories.3 All of the functions of the mandates system were absorbed by the trusteeship system, and the last instance of trust territories were the Federated States of Micronesia and the Republic of the Marshall Islands,4 which became members of the United Nations on September 17, 1991.5 More importantly, the clear text of Article 78 of the Charter of the United Nations provides that the “trusteeship system shall not apply to territories which have become Members of the United Nations,” eliminating its textual application to virtually every troubled state. Nevertheless, if the structure of the Trusteeship System were uniquely appropriate to address the crisis of a particular state in transition, the Security Council could simply incorporate the structure by reference in a Chapter VII resolution.
The United Nations has had very mixed results with consensual and coercive peacekeeping. The positive result that occurred in Mozambique did not happen in Somalia. Why?
- Should peacekeeping activity be combined with some variation of the Trusteeship System?
- Should the Member States of the United Nations participate in this activity on a multilateral or unilateral basis, and should their activities be supervised directly by the Security Council, some newly created ‘Trusteeship Council’ or even an international institution such as the World Bank or the International Monetary Fund?
- Should regional organizations, such as the Organization of American States or the Organization of African Unity, supervise such activity?
- When should collective defense arrangements such as NATO be deployed to enforce the peace?
- Was the failure in Somalia due to the absence of a legal norm such as the Trusteeship System to complement peacekeeping efforts in the ailing country?
- Was it because of the internal and irreconcilable political and power structures in the ailing country?
- Was it because of fear by the peoples of the ailing country that the administration of their country might be dominated by a foreign country?
- Was it because the political interests of certain foreign countries preferred the status quo in the ailing country?
- Was it because anarchy feeds on anarchy?
- Was it because of a resentment toward the United Nations?
- Was it because of a resentment toward an involved member country such as Egypt or the United States?
- Was it because of a lack of understanding of the ailing country’s culture and needs, or the ineffective leadership of the United Nations?
- Was it a complex combination of all of these factors?
- Or was it because the United States and the United Nations simply quit due to the fact that no short—term solution was in sight?
Somalia as a case study
Let us look at Somalia in more detail as a case study. On July 1, 1960, the United Nations appointed Italy to serve as trustee over Somalia for a maximum period of ten years.6 The trust ended on July 1, 1960, when the Italian-administered Trusteeship Territory of Somalia merged with the former Protectorate of British Somaliland to form the independent Somali Republic.7 Somalia became a member of the United Nations on September 20, 1960. On October 15, 1969, the president of Somalia was assassinated, and General Mohamed Siad Barre became the Somali head of state on October 21, 1969. After more than twenty years under the regime of President Siad Barre, a simmering civil war erupted in 1990. President Barre fled Somalia on January 26, 1991. The civil war continued and anarchy engulfed the nation.
After a year of factional fighting, the United Nations became actively involved. On January 23, 1992, the Security Council urged all parties to cease hostilities and imposed an arms embargo on Somalia in its Resolution 733. Based upon the recommendation of the Secretary-General, on April 21, 1992, the Security Council authorized unarmed military observers to monitor a cease-fire agreement. This operation, known as United Nations Operations in Somalia (UNOSOM), was undermanned and generally unsuccessful. The Security Council authorized another contingent of 3,500 men in August 1992, but only 500 had been deployed by the end of September 1992. In October and November 1992, one of the senior clan leaders, General Mohamed Farah Aideed, declared that United Nations peacekeepers were no longer welcome in Somalia, demanded their withdrawal, and attacked Pakistani peacekeepers at the Mogadishu airport.
In December of 1992, the Security Council made an unprecedented departure from the traditional, consensual peacekeeping philosophy of the United Nations by adopting Resolution 794 which authorized Member States to “use all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia.”8 The United States took the lead under the authority of Resolution 794 by forming Joint Task Force – Somalia to serve as the unified command and control element for the multinational force deploying to Somalia. The command element arrived in Mogadishu, Somalia, on December 9, 1992 to launch Operation Restore Hope. The task force was later renamed Unified Task Force-Somalia. (UNITAF).9
In Resolution 814, the Security Council established the Expanded United Nations Operations in Somalia (UNOSOM II) to continue humanitarian assistance after Operation Restore Hope.10 On June 5, 1993, a series of armed attacks against UNOSOM II left twenty-four dead and fifty-seven injured.11 Somali attacks on UNOSOM II forces continued over the next few months as UNOSOM II forces increased military operations for the capture of the warlord believed responsible for the 5 June attacks. The intensity of the hostilities peaked on October 3, 1993, when one Malaysian and eighteen U.S. soldiers were killed and another nine Malaysian, three Pakistani, and seventy-eight U.S. soldiers were wounded. After a series of extensions and debates on the continuing role of UNOSOM II, its mandate expired on March 31, 1995, and all international forces departed the country leaving no recognized authority in place.
A few words on the cultural, economic, and political background of Somalia.12 Historically pastoral and agricultural, the Somali people have a long tradition as traders as well. Products include importantly basic items such as bananas and cattle, but there are deposits of uranium and some evidence of oil and natural gas deposits. Before Africa was colonized in the nineteenth century, Somalis were part of a relatively homogenous culture consisting of clans and subclans. Most Somalis are Sunni Muslim, with a minority of Shiite Muslims and Christians. Although African, the Somali people have long been influenced by Arab culture. Somalia’s colonial history has seen Italian, British, and French authority, with Italy in a dominant position. Bilateral foreign aid from the United States, the Soviet Union, and the People’s Republic of China contributed to the nation’s infrastructure over the years.
Many workable solutions for Somalia have been unsuccessfully brokered by the international community since the first United Nations peace operations in Somalia began in 1992. They were all attempts to neutralize the political power of the warlords and address the welfare of the Somali people. Perhaps the best known was “The Cairo Declaration on Somalia” signed on December 22, 1997, by Somali warlords Hussein Mohammed Aidid and Ali Mahdi Mohammed. The Cairo Declaration was initiated by Egypt and supported by the United Nations, the Organization of African Unity, the League of Arab States, the Organization of Islamic Conference, and members of the Non-aligned Movement, as well as the governments of Egypt, Kenya, Ethiopia, Djibouti, Sudan, Uganda, and Yemen. Under this arrangement, Hussein Aidid was to become the Prime Minister and Ali Mahdi, the President. It failed, however, principally because it marginalized a large number of the allies of Ali Mahdi and upset the delicate clan balance upon which his group was built.13 It was also undermined by the claim of the former territory known as Somaliland that it would never be reunited with the rest of the country.
The failure of the 1997 Cairo Declaration eroded the cohesion and much of the influence of the warlords, especially Hussein Aidid and Ali Mahdi, and derailed their attempts at reconciliation, but it has permitted Somalia’s traditional elders and religious leaders to reassert greater influence.14 Religious courts, for example, have partially filled the power vacuum and restored some security in southern Mogadishu and other areas.15 Most international visitors do not meet with just the warlords anymore. They now meet with the elders, religious leaders, women representatives, intellectuals, former politicians, and business groups.16
Alternatives to a purely political solution
Since the international community has been unwilling or unable to remove or displace the warlords from power, and any plan that significantly favors one over the other is doomed to fail, a purely political settlement seems very unlikely.
Would a legal regime such as a mandate or trusteeship system succeed in defining or supporting a workable solution or peacekeeping operation? Sadly, that answer is very likely no. The existence of a legal regime such as the trusteeship system does not by itself create the resources, assets, or will necessary for the international community to take action. Nor does it create the political consensus among the transient Somali power base necessary for peace. It is not the lack of a legal regime that prevents a solution in Somalia; it is the international community’s unwillingness to apply sufficient force to dictate a particular outcome, in the face of the unwillingness of Somalia’s rival political leaders to accept a balanced approach that fails to satisfy their respective personal objectives.
A new approach is needed to rebuild Somalia that does not rely upon a distribution of political power as the foundation of reconciliation. Now that power has shifted away from the warlords, one possible approach is for the international community to capitalize upon the natural inclinations of the Somali people toward trading and business to attempt a commerce-based solution that provides a market sector for each of the major clans and sub-clans to develop. The United States Institute of Peace, for example, has reported that a free and unregulated market economy has emerged in Somalia and that decentralized, local action can be the organizing principle around which permanent reform might be built.17
Given the Somali people’s long and proud tradition as traders, a commerce-based approach based on trade and other economic incentives deserves consideration, as an alternative to a politically-based scheme. A commerce-based approached could be initiatied and/or supervised either by private industry, the Security Council, an international institution such as the IBRD or the IMF, or by a combination of these. Because any approach would need to be apolitical, the most successful commerce-based arrangement would be one initiated by private industry and partially funded or guaranteed by international financial institutions or states.
Such an approach would be only the beginning of a solution, of course; the warlords must also agree that a government will be put into place at a designated time. But a commerce-based solution would provide the financial incentive to all Somalis to cooperate and promote the political interdependence upon which a government can be built.
How a commerce-based solution might work
There are many different ways to tailor a commerce-based solution. Its basic structure would depend primarily upon the interests of the private investors involved, but the key is that in return for the financial support and assistance in a particular chosen market of products or services, each warlord, sub-clan leader, elder, and religious group would place all offensive weapons in cantonment areas and would strictly enforce an end to the fighting and banditry that are still rampant. There would be no immediate requirement for a political structure, but as the clans become more economically interdependent upon one another, they will develop stronger reasons to mend their political relationships, since continued economic growth will require a more formal governmental structure to create incentives for foreign investment. Economic interdependence and the desire for further economic growth will thus foster political reconciliation and encourage formation of a national government
Once a consensus begins to form on the need for governmental institutions to support economic growth, an interim government might be put together comprised of educated Somalis that fled the country over a decade ago. These displaced Somalis might be more inclined to govern the Somali people as a nation and not solely based on clan loyalties or power objectives. It is also possible that during the economic reconciliation a leader might emerge that the Somali people can trust. Then, after a designated period for the transitional government, all Somalis would be eligible to run for political office. Such an economically interdependent arrangement would give all Somalis the incentive to act in the best interests of all the Somali people, and not just themselves or their clans.
The warlords, sub-clan leaders, elders, and religious groups are clearly the key to finding a workable solution in Somalia. Many displaced Somalis believe that these groups have the power to end the ongoing tragedy. A commerce-based solution would seem to appeal to these groups, since it would allow each one to achieve its particular objectives, whether it is immediate financial gratification, the long-term reconstruction of Somalia, or the health and welfare of the Somali people.
For the future of Somalia, a private, commerce-based solution to reconstituting a democratic and prosperous Somali society should be supported by the international community. It may be Somalia’s only hope.
Harry Inman is Senior partner, Inman Deming LLP, and former chair of the American Bar Association Section of International Law and Practice. On July 26, 1999, he registered with the U.S. Department of Justice as representing Dr. Abdullahi Ahmed Addou, a former Somali Ambassador to the United States.Walter Gary Sharp is principal manager of Paciarii International, LLC, adjunct professor of law, Georgetown University Law Center, and retired U.S. Marine who served as the international law adviser and deputy staff judge advocate of the Unified Task Force – Somalia during Operation Restore Hope, December 1992-April 1993.
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1. This United Nations operation resulted in a de facto governing body similar to the trusteeship system principle.
2. U.N. Charter, art. 39.
3. See Bruno Simma, ed., The Charter of the United Nations: A Commentary (1994), 933-35.
4. Ibid., 172, 933.
5. See “United Nations Member States,” last modified Dec. 9, 1998, at Website http://www.un.org/overview/unmember.html.
6. Simma, The Charter of the United Nations, 939, 945.
7. The United Nations and Somalia – 1992-1996 (UN Dept. of Public Information, 1996; UN Sales No. E. 96.I.8), 91. This text is Vol. VIII of the United Nations Blue Book Series.
8. U.N.S.C. Res. 794 (Dec. 3, 1992).
9. For an excellent operational history and political reflection on the international community’s policy in Somalia, see John L. Hirsch and Robert B. Oakley, Somalia and Operation Restore Hope: Reflections on Peacemaking and Peacekeeping (1994).
10. U.N.S.C. Res. 814 (Mar. 26, 1993).
11. See “Report of the Commission of Inquiry Established Pursuant to Resolution 885 (1993) to Investigate Armed Attacks on UNOSOM II Personnel,” 117, UN Doc. S/1994/653 (June 1, 1994, reprinted in The United Nations and Somalia, 368, 376.
12. This brief ethnology is drawn from Hirsch and Oakley, Somalia and Operation Restore Hope, 3-16, and The United Nations and Somalia, 9-16.
13. Interview with Dr. Abdullahi Ahmed Addou, former Somali ambassador to the United States, May 5, 1999.
15. Diahha Cahn, “Courts Fill Void in Somalia Capital,” The Wire (news Website of the Associated Press – http://wire.ap.org/), July 12, 1999.
16. Interview with Dr. Addou.
17. U.S. Institute of Peace, Removing Barricades in Somalia: Options for Peace & Rehabilitation, Peaceworks No. 24 (Oct. 1998).