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How to try Somalia's Aidid? No one seems to know

Published Oct. 9, 2005

The United Nations has ordered the arrest of Somali warlord Mohamed Farrah Aidid without having any plan to deal with the legal questions of how or where he would be tried.

"I've asked around and almost nobody seems to know how it would happen," one U.N. diplomat said. "I was trying to find out how they plan to do it because there's no tribunal in Somalia that could deal with it and there's no international tribunal. I guess everybody will be scrambling around."

A U.N. spokesman refused to comment. "We're not getting into legal matters yet. Suffice it to say that legal matters are being studied and dealt with in New York."

The United Nations ordered the arrest of Aidid after an investigation into the ambush and killing of 23 Pakistani peacekeepers June 5. According to an announcement, Aidid also will be charged with crimes against humanity and endangering civilians through an organized incitement to violence.

The announcement does not name other Somali warlords who have committed many of the same acts as Aidid. But it says "others will also be arrested if evidence is developed implicating them in the same or similar crimes."

U.S.-led U.N. forces mounted a concerted attack against Aidid's headquarters and radio station, and the warlord has been in hiding since Thursday.

The military actions seemed to create less controversy among U.N. diplomats and international lawyers than did the arrest order.

The military assaults could be justified under the laws of war or on the grounds that Aidid violated a peace agreement to which he is a party, said Alfred Rubin, a professor of international law at Tufts University in Medford, Mass. A U.N. diplomat agreed, arguing that the Addis Ababa Agreement, signed by Somali warlords in March, obliged them to disarm.

"I think you could make a case that that radio station did broadcast certain inflammatory statements or those warehouses did hold weapons that should be surrendered," Rubin said.

Experts say the arrest order, by contrast, creates a whole range of problems including where Aidid would be tried, who would try him and what law would apply.

Rubin said he doesn't think the United Nations has the legal authority to undertake an arrest and trial. Arrest is normally a municipal function, he said.

"Does this mean that the U.N. is asserting that it's a belligerent occupier of Somalia?" he asked. In that case, he said, Aidid may be able to make a claim that he was a "counter-belligerent," and his military actions were therefore justified.

Another possibility is that, in the absence of a Somali government, the United Nations might take over the administration of Somali law _ an option for which Rubin said there is some precedent in international law.

"Some of my colleagues think what they're trying to establish is a world government under which the Security Council is a council of Yodas," he said. (Yoda was the tiny green sage who trained the Jedi warriors in the movie The Empire Strikes Back.)

"But they're not Yodas," Rubin continued. "And I'm not sure all of us would want to live under a government run by the politicians in the Security Council."