WHAT JUST HAPPENED?
The GERD project is one that is essential to Ethiopia’s rise from poverty and general development, yet its consequences may be disastrous to Egypt’s water access.
WHAT DOES THIS MEAN?
The Egyptian State has maintained a hegemony of many facets over the Middle East and North Africa up until the 1980s. This hegemony, particularly under King Farouk and later Gamal Abdel Nasser and Anwar Sadat, had equally extended to parts of Northern Africa including Sudan, Ethiopia and Darfour. This had allowed Egypt to maintain an unchallenged dominance over the Nile and its water flow, preventing upstream countries from using the water for any purpose or altering its flow to Egypt in any way (Pemunta Et Al 2021). For the past decade however, with Egypt destabilised by the Arab Spring and its aftermath, Ethiopia has been stepping up its zeal to the effect of the building and filling of the ‘Grand Ethiopian Renaissance Dam’ (GERD).
With the consecutive failures of negotiation rounds, how justified, in international legal terms, would a military offensive instigated by the Egyptian state be and to what extent does the unilateral action on the Nile by Ethiopia constitute a sufficient triggering act of aggression which may create legitimacy for an act of self defence by Egypt.
HOW DOES THIS IMPACT THE LEGAL SECTOR?
An act of aggression?
Ethiopia’s actions, under Article 8 of the Rome Statute, do not satisfy the requirements of a crime of aggression, particularly the ‘use of armed force’ element.[1] Nevertheless, in this one violation of the status quo, Ethiopia’s unilateral actions could represent an act of sabotage, since Egypt’s entire civilisation had been built on the banks of the nile, shaping its economic models for centuries and being a vital lifeline as its valley is one of the world’s most fertile regions, in an otherwise dry and arduous land dominated by desert (Betz 2021).
Ethiopia’s filling of the GERD, depending on the levels of water it retains, may compromise the flow of water to Egypt, depriving it from a crucial source of energy and agriculture.[2] More specifically to the global governance and regulation of shared bodies of water, the Convention on the Law of Non-Navigational Uses of International Watercourses is considered a ‘binding customary international law’ (Farhat 2020). Although Ethiopia could be argued to adhere to the Article 5 requirement of ‘equitable and reasonable’ use of the water due to its sovereign entitlement to a share of the water, their unilateral move is in danger of transgressing the Article 7 duty not to cause ‘significant harm’ if the amount of water retained is so great as to present a substantial threat to Egypt.
The legitimacy of Egypt’s potential military option:
The 21st century has not been a vindication of Clausewitz’s assertion that war is ‘a continuation of policy by other means’. Despite Cairo’s military might, stepped up by Sisi’s administration, Egypt has been reluctant to engage into any military operations, whether that be due to fears of economic difficulty, an international backlash, violence and death or simply failure. Nevertheless, threats have been flying from both parties, with Ethiopia asserting its sovereignty and determination to build and fill the dam, and Egypt clinging to what it sees as its historic right and entitlement to its share which is determined by the natural flow of the Nile. There are two methods by which a military operation could be conducted to sabotage the filling of the already completed dam, one is through airstrikes and the other is by boots on the ground, or indeed a combination. The latter, as Sergey Sayapin explains, would be classed as occupation, while airstrikes would merely be an act of aggression for the purposes of Article 8 of the Treaty of Rome as ‘borrowed’ by the Nuremberg Charter and Judgment (Sayapin 2014).
For reasons of a practical and economic nature, the option of an airstrike, though as undesirable as its alternative, is far more likely to occur. Egypt would stipulate that such an offensive would constitute an act of national defence, thereby justifying an act of aggression which would be the final and sole method by which it can protect its interests and prosperity, after having exhausted all the possible means of a peaceful solution, Indeed, Egypt and Sudan have sought International mediation, African Union mediation, diplomatic negotiations and those have all concluded in a worse entangle.
Written by Mohammad Al Khateeb
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REFERENCES:
[1] Article 8 bis Treaty of Rome, International Criminal Court
[2] John Mbaku, ‘The Controversy over the GERD’, Brookings, August 5th 2020
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