Responsibility of International Organizations

Part 1 – Introduction and historical approach to the Ethiopian Conflict

In the sphere of Responsibility of International Organizations, there is no agreement on how to set their responsibility. On the third week of March 2016, at MGIMO University, the Sixth Commission of the International Model of the United Nations (MIMUN) discussed this issue. I was invited to give a expert view on this issue, as the introductory session of this conferences, which were held in Spanish and assisted by about 30 students not only from Russia but also from European and American nations.

 

When speaking to the UN General Assembly on the topic of Responsibility to Protect (R2P), on July 23^rd 2009, Noam Chomsky said: The discussions about R2P, or its cousin “humanitarian interventions” are always shaken by that dusty skeleton that we have hidden in our wardrobe: History.

 

History has proven that International Organization, some times, fail. And the lack of responsibility towards them as institution, or towards the member of the International Organization, has no real consequences. The Italy-Ethiopian Treaty of 1928, also known as Treaty of Friendship and Arbitration was signed between the Kingdom of Italy and the Ethiopian Empire.

 

It’s bases came from 1926, when both Great Britain and Italy wanted to attempt a joint commercial enterprise in Italy. Italians wanted to build a railway, while British wanted to build a waterway to the Anglo-Egyptian Sudan. While the British project failed because of lack of popular approval, the Italian project subsisted. The treaty declared a 20-year friendship between both nations. It provided a concession to Ethiopia at the Read Sea in the Italian Colony of Eritrea, it called for both nations to build a road between Asseb (in the Eritrean coast) and Dessie, in Ethiopia, with a road already built further to Addis Ababa. It also created a border between Ethiopia and Somalia parallel to the Benadir coast, of 118km wide.

 

In 1930, Italy built a fort at the Welwel oasis, and garrisoned it with Somali irregular troops commanded by Italians. This fort was inside of Ethiopian territory. In November 1934, Ethiopian troops, escorted by the Anglo-Ethiopian boundary commission, protested against Italy’s incursion. A month later, the tensions erupted leaving 110 Ethiopians and 40 Italians and Somalis dead. This incident led to the Abyssinia crisis at the League of Nations, that was born after World War I. Later, on September 4^th 1935, the League of Nations would exonerate both parties for the Welwel Incident.

 

UK and France wanted to keep Italy as a friend, and really had no interests on Ethiopia. Shorly later, Italian began building forces on the borders of Ethiopia, both in Eritrea and Somalia. In January 1935, France signed an agreement with Italy (Mussolini-Laval accord) giving Italy free hand in Africa. Similar paths took the UK and Japan, either allying with Italy or Germany.

 

Feeling an attack like inevitable, Emperor Haile Selassie ordered a general mobilization of the army, He had 500,000 men, mostly armed with spears and bows. Few carried modern weapons, although most of them were outdated and in bad conditions. Italy, by the other hand, formed the Royal Italian Army of Eastern Africa. They had 685,000 soldiers (400,000 in Eritrea and 285,000 in Somalia). They had machine guns, artillery, tanks and aircraft.

 

On October 3^rd 1935, the Italian Army entered Ethiopia from Eritrea without a declaration of war. In response, Ethiopia declared war on Italy. The war lasted 8 months, and resulted in the Italian victory, with the complete annexation of Ethiopia by Italy and the formation of Italian East Africa. During these war, round 20,000 Italians (including Somalis and Eritreans) were killed, while 775,000 Ethiopians were killed.

 

The war officially ended on May 2^nd 1936, the Haile Selassie fled to Djibouti, and later to England. Italians were euphoric. From his balcony at Palazzo Venezia, in Rome, Mussolini proclaimed: “During the thirty centuries of our history, Italy has known many solemn and memorable moments. This is unquestionably one of the most solemn, the most memorable. People of Italy, people of the world, peace has been restored”. Four days later, he added: “At last, Italy has her empire. The Italian people have created an empire with their blood, and they will fertilize it with their work, and they will defend it against anyone with their weapons”.

 

On board the HMS Enterprise, where Selassie was going to England, he sent a telegram to the League of Nations, in which he wrote: “We have decided to bring to an end the most unequal, most unjust, most barbarous war of our age, and we have chosen the road to exile in order that out people will not be exterminated, and in order to consecrate ourselves wholly and in peace to the preservation of our Empire’s independence, we now demand that the League of Nations should continue its efforts to secure respect for the covenant, and that it should decide not to recognize territorial extensions, or the exercise”.

 

The international reaction to the Italian aggression was mixed. Selassie spoke before the League of Nations, wanting the international community to deny any recognition to Italian conquest. He asked for a loan to finance a resistance movement (but 23 countries voted against, 25 abstained and only Ethiopia voted for). Selassie achieved the League of Nations to impose sanctions against Italy (which had started in November 1935), but they were lifted on July 1936.

 

Among nations, Mexico was the only to condemn Italy’s sovereignty over Ethiopia, respecting Ethiopia’s independence. By 1937, only six nations didn’t recognize Italy’s occupation: Mexico, China, New Zealand, the Soviet Union, United States and the Republic of Spain. Britain and France officially recognized Italy’s sovereignty over Ethiopia by the “Accordi di Pasqua” in 1938.

 

On June 10^th 1940, Mussolini entered World War II joining Hitler in his Axis ally. Initially, Italians used it’s Africa to attack the British forces in Sudan, Kenya and British Somaliland, but by the end of 1941, Ethiopia was liberated from Italian control by British, Commonwealth, French, Belgian and Ethiopian forces. Emperor Selassie returned to Ethiopia in January 1941, where he would reign until 1974.

Part 2 – Speech of Haile Selassie to the League of Nations – Geneva 1936

In June 1936, a month after the war finished, with Emperor Selassie already in exile, he traveled to Geneva and addressed the League of Nations in one of the most emotive speeches ever said. Here are some extracts from that speech:

 

"I, Haile Selassie I, Emperor of Ethiopia, am here today to claim that justice which is due to my people, and the assistance promised to it eight months ago, when fifty nations asserted that aggression had been committed in violation of international treaties.

 

There is no precedent for a Head of State himself speaking in this assembly. But there is also no precedent for a people being victim of such injustice and being at present threatened by abandonment to its aggressor.

 

Also, there has never before been an example of any Government proceeding to the systematic extermination of a nation by barbarous means, in violation of the most solemn promises made by the nations of the earth that there should not be used against innocent human beings the terrible poison of harmful gases. It is to defend a people struggling for its age-old independence that the head of the Ethiopian Empire has come to Geneva to fulfill this supreme duty, after having himself fought at the head of his armies.

 

You, Committee of Thirteen, The Council and the Assembly unanimously adopted the conclusion that the Italian Government had violated the Covenant and was in a state of aggression. I did not hesitate to declare that I did not wish for war, that it was imposed upon me, and I should struggle solely for the independence and integrity of my people, and that in that struggle I was the defender of the cause of all small States exposed to the greed of a powerful neighbor. In October, 1935. the 52 nations who are listening to me today gave me an assurance that the aggressor would not triumph, that the resources of the Covenant would be employed in order to ensure the reign of right and the failure of violence.

 

War then took place in the atrocious conditions which I have laid before the Assembly. In that unequal struggle between a Government commanding more than forty-two million inhabitants, having at its disposal financial, industrial and technical means which enabled it to create unlimited quantities of the most death-dealing weapons, and, on the other hand, a small people of twelve million inhabitants, without arms, without resources having on its side only the justice of its own cause and the promise of the League of Nations. What real assistance was given to Ethiopia by the fifty two nations who had declared the Rome Government guilty of a breach of the Covenant and had undertaken to prevent the triumph of the aggressor? Has each of the States Members, as it was its duty to do in virtue of its signature appended to Article 15 of the Covenant, considered the aggressor as having committed an act of war personally directed against itself? I had placed all my hopes in the execution of these undertakings. My confidence had been confirmed by the repeated declarations made in the Council to the effect that aggression must not be rewarded, and that force would end by being compelled to bow before right.

 

Towards the end of 1935, Italian aircraft hurled upon my armies bombs of tear-gas. Their effects were but slight. The soldiers learned to scatter, waiting until the wind had rapidly dispersed the poisonous gases. The Italian aircraft then resorted to mustard gas. Barrels of liquid were hurled upon armed groups. But this means also was not effective; the liquid affected only a few soldiers, and barrels upon the ground were themselves a warning to troops and to the population of the danger. Finally, special sprayers were installed on board aircraft so that they could vaporize, over vast areas of territory, a fine, death-dealing rain. Groups of nine, fifteen, eighteen aircraft followed one another so that the fog issuing from them formed a continuous sheet. It was thus that, as from the end of January, 1936, soldiers, women, children, cattle, rivers, lakes and pastures were drenched continually with this deadly rain. In order to kill off systematically all living creatures, in order to more surely to poison waters and pastures, the Italian command made its aircraft pass over and over again. That was its chief method of warfare.

 

It is collective security: it is the very existence of the League of Nations. It is the confidence that each State is to place in international treaties. It is the value of promises made to small States that their integrity and their independence shall be respected and ensured. It is the principle of the equality of States on the one hand, or otherwise the obligation laid upon smail Powers to accept the bonds of vassalship. In a word, it is international morality that is at stake.

 

I declare in the face of the whole world that the Emperor, the Government and the people of Ethiopia will not bow before force; that they maintain their claims that they will use all means in their power to ensure the triumph of right and the respect of the Covenant.

 

I ask the fifty-two nations, who have given the Ethiopian people a promise to help them in their resistance to the aggressor, what are they willing to do for Ethiopia? And the great Powers who have promised the guarantee of collective security to small States on whom weighs the threat that they may one day suffer the fate of Ethiopia, I ask what measures do you intend to take?

 

Representatives of the World I have come to Geneva to discharge in your midst the most painful of the duties of the head of a State. What reply shall I have to take back to my people?"

Part 3 – Legal framework

There are five basic rules in respect to responsibility:

 

1)             Every International wrongful act of an international organization incurs in international responsibility

 

2)             The conduct of an organ or an agent, even in excess of their duties, it is considered as a responsibility of the Organization.

 

3)             The violation of a norm of International Public Law, and the circumstances of exemption, are the same as for a state.

 

4)             A state may have vicarious responsibility because of the organization.

 

5)             There is Responsibility, by International law, when:

 

a.       The organization breaks a treaty it concluded with a State or another organization

 

b.      In liability risk, when technical or specialized organization activities, may fall under such circumstances. In some cases, it will be responsible the internal law, in others the international.

 

c.       They arise of the context of legal relations between the organization and its officials and agents.

 

d.      In the rules of exclusion of the international responsibility of a territorial state, there is a stipulation of exclusion of liability for the acts committed by the Organization.

 

e.      An international organization is responsible for acts of international administration of territorial places, by circumstances under its direct management (e.g.West New Guinea, 1962 - 1963).

 

The MIMUN held at MGIMO arrived to the following conclusions:

 

1)      Recommends to the General Assembly take note of the resolution on the responsibility of international organizations elaborated and amended by the Sixth Committee of the General Assembly and included in a resolution;

 

2)      Take into account, in the later stage, the elaboration of a convention based on the annex to this resolution;

 

3)      Approves that if a wrongful act by international organizations committed, international organizations or their members should be punished for the act;

 

4)      Proposes to the General Assembly to consider the amendments to:

 

a.       Article 34, paragraph 1 of the Statute of the International Court of Justice, which stipulates that "only States may be parties in cases before the Court" and be changed to 'States and dependent International organizations of jurisdiction may be parties in cases of the Court ",

 

b.      Articles 35 paragraph 1, which states" the court will be open to States parties to this Statute "modified to" the court will be open to States and Organizations parties to the Statute, as well as those of others who require it "

 

c.       Article 36, paragraph 2,"States parties to this Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement with respect to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes that deal ...) "modifying" States and organizations parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes that deal ...) for governmental international organizations are granted the status of locus standi, the status of litigant,

 

d.      Article 38 paragraph 1 a) "international conventions, whether general or particular, establishing rules expressly recognized by the contesting States" changing to "international conventions, whether general or particular, establishing rules expressly recognized by States and litigants Organizations "

 

e.      Article 40, paragraph 3:" the Secretary shall also notify the Members of the United Nations through the Secretary-General, as well as other states entitled ... "will be modified to "the Secretary shall also notify the Members of the United Nations through the Secretary-General, as well as other States and organizations entitled ...";

 

5)      Recalls the forms of reparation for damage restitution, satisfaction, compensation, interest;

 

6)      Considers that the competent courts should assess the damage caused by an international organization that has made an unlawful act;

 

7)      States that as the organization is guilty, an organization itself repair the damage caused, given that the budget of an international organization collects all contributions from its Member States, and the procedure will be prepared by an organization itself and will be incorporated in its document of establishment;

 

8)      Urges considered the amendment to Article 45 of the Draft Articles on Responsibility of International Organizations (PASROI), which will be added:

 

a.       when two or more international organizations or between one or more States and one or more international organizations a dispute which, in the opinion of one of them, can not be settled through the usual diplomatic means is raised, the Parties shall agree on some other peaceful procedure that will enable them to reach a solution, without prejudice to articles 34 and 35 of the UN Charter,

 

b.      If an agreement between one or more international organizations and one or more States stipulate that the International Organization benefits of absolute jurisdictional immunity, the international organization involved in the dispute agrees to waive such immunity in the context a dispute that opposes a state, international organization or other particular with a view to ensuring proper access to justice and due process;

 

9)      Advises to recognize the circumstances precluding wrongfulness: consent, self-defense, force majeure, distress and countermeasures;

 

10)   Warns that the use of countermeasures can not under any circumstances justify the use of force, as stipulated in the United Nations Charter, obligations for the protection of human rights, humanitarian obligations, other obligations come from peremptory norms of international law;

 

11)   Also advises international non-governmental organizations and their counterparts who choose a subject-mediator that offers international arbitration mechanism or its good offices to resolve a dispute right, taking into account the special nature of an international organization not governmental;

 

12)   Proposes to consider the question of jurisdictional immunity currently enjoyed by international organizations, taking into account the urgent need to ensure access to justice and satisfaction;

 

13)   Proposes, with a view to guaranteeing the fundamental rights of States, international organizations and private individuals that could eventually be part of a lawsuit against an International Organization, International Organizations and States be encouraged to establish jurisdictional clauses in their constituent acts or agreements Headquarters so as to limit the possibility that an international organization could benefit from the absolute jurisdictional immunity;

 

14)   Encourages the continuation of the practice of publishing annual reports on the actions of the international organization; and

 

15)   Emphasizes that this resolution does not prejudice the United Nations Charter.