Disengaged Combatants in Somalia: A Review of the Normative Framework. Stuart Casey- Maslen

Transcription

1 Disengaged Combatants in Somalia: A Review of the Normative Framework Stuart Casey- Maslen September 2013

2 Contents EXECUTIVE SUMMARY INTRODUCTION... 3 A. The aim and content of the paper... 3 B. The Somali National Programme... 4 C. The situation in Somalia... 5 D. Summary terms of reference and layout of the paper OVERVIEW OF THE LEGAL CONTEXT... 7 A. The international legal context... 7 International humanitarian law... 8 International human rights law... 9 Duty bearers under international human rights law in Somalia International criminal law International law applicable to the armed conflict in Somalia The conduct of hostilities Treatment of anyone within the power of a party to armed conflict Use of force against, and treatment of, members of armed groups that are not party to armed conflict Treaty law B. The national legal context National legislation Shari a Local custom KEY PHASES IN DISENGAGEMENT AND THE LEGAL IMPLICATIONS A. Surrender B. Reception and detention C. Status D. Conditions of detention E. Handover or transfer F. Prosecution and fair trial rights G. Sentencing Death penalty Imprisonment Alternative forms of justice H. Amnesty, pardon, parole, and release... 24

3 I. Rehabilitation and prevention J. Defectors and rehatting K. Protection post release FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS FOR ACTION A. International law: findings and conclusions B. National law: findings and conclusions C. Risks to the United Nations of complicity in violations of international law: findings and conclusions. 28 D. Recommendations To the FGS To AMISOM and other foreign forces To UNSOM, UNDP, UNICEF, and UNODC To UNDP BIBLIOGRAPHY Constitutions and Legislation Publications Websites List of tables and text boxes Table 1: Somali adherence to selected IHL, human rights and international criminal law treaties Box 1: The meaning of the term combatant under international law Box 2: The meaning of torture and cruel, inhuman or degrading treatment under international law Box 3: Signatories and states parties to international treaties Box 4: The Serendi rehabilitation camp Box 5: Non- refoulement Box 6: Alternative dispute resolution and disengaged combatants Box 7: The definition of amnesty Disclaimer This report reflects the views of the consultant and not necessarily those of the UN, and is based on the best information available to him as of September The designation of armed non- state actors, states, or territories does not imply any judgement regarding the legal status of such actors, states, or territories, or their authorities and institutions, or the delimitation of their boundaries, or the status of any states or territories that border them.

4 Executive Summary 0.1 This paper identifies and assesses the normative framework for the treatment of disengaged al- Shabaab combatants (fighters) 1 as set out in the Somali National Programme. 2 This normative framework encompasses Somali law, international human rights law, and international humanitarian law (IHL) applicable to the non- international armed conflict between the Federal Government of Somalia (FGS), the African Union Mission in Somalia (AMISOM), and Ethiopian forces, on the one side, and the al- Shabaab armed group on the other. 0.2 In accordance with this framework, all disengaged combatants former al- Shabaab fighters in particular must be treated humanely, whether they are captured or whether they defect. Summary, arbitrary, or extrajudicial executions and torture are all serious violations of human rights law and, in connection with an armed conflict, also serious violations of IHL, amounting to war crimes. Summary in camera trials by military commissions that do not meet fundamental fair trial rights and that are followed by executions are themselves war crimes. 0.3 A blanket amnesty for al- Shabaab fighters for all crimes they have committed, including war crimes, would likely be a violation of Somalia s international legal obligations. A qualified amnesty for taking up arms against the State of Somalia may, however, be lawful. There is no international legal prescription for how an amnesty should be declared. 0.4 On the basis of consultation with the FGS, United Nations (UN) bodies and agencies, donor states, and academic experts, this paper recommends the following measures in order that Somalia comply with international law and so that donor states, foreign forces, and the UN do not aid or assist violations of international law through their actions, however well intentioned. 1. As a matter of urgency, the FGS should declare a comprehensive moratorium on the imposition of the death penalty throughout Somalia by any court, civil or military, until, at least, the end of Such a moratorium is in accord with a pledge made by the Government of Somalia to the international community in The FGS and AMISOM as well as other foreign forces should formally commit to respecting their duty to ensure humane treatment of any captured al- Shabaab fighter or any fighter laying down his/her arms (i.e. any disengaged combatant ). 1 Although the Somalia National Programme uses the term combatant, as discussed in greater detail in the body of the report (see footnote 6 and Box 6) this does not connote an intention by the FGS to accord prisoner of war status to disengaged al- Shabaab fighters. The term is used in its more generic sense to describe al- Shabaab fighters who have participated directly in hostilities against the State of Somalia. 2 National Programme for the Treatment and Handling of Disengaging Combatants and Youth at Risk in Somalia, prepared by the Federal Government of Somalia (FGS) s Inter- Ministerial Task Force on Disengaging Combatants, and dated 30 April In its written response in September 2011 to recommendations made during its Universal Periodic Review (UPR) under the auspices of the Human Rights Council, the Government of Somalia stated that while the death penalty is currently imposed for the most serious crimes, the Government undertakes to work towards declaring a moratorium on the death penalty with a view to its eventual abolition. Somali Permanent Mission to the United Nations in Geneva, The consideration by the Government of Somalia of the 155 recommendations (long version), Doc. SPR/UNOG/000431/11, Geneva, 21 September 2011 (hereafter, Somalia Response to UPR Recommendations), The establishment of a moratorium on the death penalty was contained in the Somalia s voluntary commitment in its UPR National Report (in 51). 1

5 3. The FGS should allow UN human rights monitors, including those with child protection expertise, to monitor the wellbeing of any disengaged combatants and should undertake to grant the monitors unfettered access to all disengaged combatants, whatever status they may be accorded under national law or policy and wherever they may be located or detained in Somalia. 4. Any amnesty from prosecution that may be declared for al- Shabaab fighters who lay down their arms should cover participation in insurrection against the State of Somalia. Consonant with international law and the position of the FGS, Somalia should not establish or endorse a blanket amnesty for all war crimes Any trials for war crimes, particularly murder, torture, or rape, shall take place in a court that is witnessed by UN human rights monitors and which ensures fundamental fair trial rights. 5 As soon as possible, judges and support staff should be brought in to assist local judges to ensure these fair trial rights are respected. National and international judges working together can help to ensure a fair trial and respect for national sovereignty while building the capacity of national judges to apply the law impartially and effectively. 6. As soon as possible, all trials under Somali law of al- Shabaab fighters for war crimes should be conducted in civilian courts only, and in conditions of safety and security. The major crimes court to be built in Mogadishu by the UN Office on Drugs and Crimes (UNODC) offers a significant opportunity in this regard. 0.5 The UN and its agencies and bodies have obligations under international law to uphold, promote, and encourage respect for international human rights law and IHL. Aid or assistance by the UN in violations of these bodies of law by any state may engage the international responsibility of the organization. Given the situation in Somalia, the risk of complicity in human rights or IHL violations is significant. 4 In this regard, the Government of Somalia stated in 2011 that it would undertake every effort to stop all violence in the context of the armed conflict, including summary executions, arbitrary, extrajudicial killings, and serious violations of human rights and IHL. Those responsible will be held accountable for their actions. Somalia Response to UPR Recommendations, These include the right to conduct a defence to criminal charges and the right to appeal against both conviction and sentence to a higher court that meets the standards of independence and impartiality. 2

6 1. Introduction A. The aim and content of the paper 1.1 This paper sets out the normative framework relevant to the treatment of disengaged combatants in Somalia, in particular with respect to the National Programme for the Treatment and Handling of Disengaging Combatants and Youth at Risk in Somalia, prepared by the Federal Government of Somalia (FGS) s Inter- Ministerial Task Force on Disengaging Combatants, and dated 30 April 2013 (hereafter, the Somali National Programme). It identifies and assesses particular risks for UN bodies and entities in their current and potential support to the Somali National Programme, and proposes actions to mitigate those risks. 1.2 As set out in Box 1, the term combatant has a number of possible meanings under IHL. Notably, it is used to describe a member of armed forces that is deployed and authorized to participate directly in hostilities. When such a person is captured in an international armed conflict, in accordance with IHL the captured person is entitled to be recognized and treated as a prisoner of war (POW). The term combatant can also, though, be used more generically to denote a fighter belonging to a party to a non- international armed conflict, whether that party is state or non- state in character, and without the intention on the part of a state to accord POW status to any such captured fighter. The consultant understands that the term combatant is being used in this more generic sense in connection with the Somali National Programme. Box 1. The meaning of the term combatant under international law Strictly speaking, a combatant is a member of the armed forces who is authorised to use offensive force in military operations. There are also typically non- combatant members of the armed forces, particularly medical or religious personnel. Most other individuals are civilians. The formal granting of combatant status under IHL gives an individual certain rights and privileges. In an international armed conflict between states, all members of the armed forces are ordinarily entitled under IHL to be treated as prisoners of war (POWs). This means that they must be treated in accordance with the rules set down in 1949 Geneva Convention III and that they may not be prosecuted for having used arms against the state that is holding them. They may, though, be prosecuted for any war crimes they are suspected to have committed. As soon as possible after the cessation of active hostilities they must be repatriated. Serious abuses of POWs are war crimes. There is no right of fighters in a NIAC to be treated as a POW, however at the same time there is no prohibition on a state according POW status to captured fighters or to those who voluntarily hand themselves in to an opposing state that is party to the conflict. 1.3 Under UN Security Council Resolution (UNSCR) 2102 of 2 May 2013, the UN Assistance Mission in Somalia (UNSOM) s mandate includes support to the FGS and AMISOM as appropriate, by providing strategic policy advice on peacebuilding and statebuilding, including on: disengagement of combatants, disarmament, demobilisation and reintegration. 6 In accordance with the UN s 2011 system- wide policy on due diligence, 7 UN entities that are contemplating or involved 6 UNSCR 2102, 2 May 2013, 2(b)(ii). 7 UN, Human Rights Due Diligence Policy on UN support to non- UN security forces, New York, See also Guidance Note for the Implementation of the HRDDP, Decision- making Process in Managing the Risks of 3

7 in the provision of support to non- UN security forces must pursue a policy of due diligence, comprised of the following key elements: a. before support is given, an assessment of the risks involved in providing or not providing such support, in particular the risk of the recipient entity committing grave violations of international humanitarian law, human rights law or refugee law; b. transparency with receiving entities about the legal obligations binding the Organization and the core principles governing provision of support; and c. an effective implementation framework, including: (i) procedures for monitoring the recipient entity s compliance with international humanitarian, human rights and refugee law; (ii) procedures for determining when and how to intercede with a view to putting an end to grave violations of any of those bodies of law and for deciding, if need be, upon the suspension or withdrawal of support; and (iii) general operational guidance, as required, by the respective UN entities to the country level on implementation of the policy The task of the author of this paper, a consultant for the UN Development Programme (UNDP) on behalf of UNDP and UNSOM s Rule of Law and Security Institutions Group (ROLSIG), was to undertake a scoping mission to support the FGS and UNSOM/UNDP in developing an adequate normative framework for the treatment of disengaged combatants, taking into account Somalia s obligations under international law and its national legal framework. This paper incorporates the results of two separate missions to Somalia and Kenya in July and August 2013, including consultations with members of the FGS, UN agencies and bodies, and representatives of donor states, as well as comments received from experts on earlier drafts of this paper. The findings and recommendations, which reflect the views of the consultant, not necessarily those of the UN, are based on the best information available to him as of September B. The Somali National Programme 1.5 The Somali National Programme aims to receive, rehabilitate and reintegrate 4,500 fighters/combatants who renounce violence, voluntarily surrender or are captured from Al- Shabaab/other armed groups, with respect to the principles of international humanitarian and human rights laws and restorative justice. 10 While the estimated number of fighters that the programme will ultimately treat should be considered at best as speculative, 11 the document properly notes the high risk of violating international norms and standards if certain issues are not properly and immediately addressed. 12 Among the operational principles it espouses, it considers Engagement with the Security Sector, UNDP, undated but July 2013 (hereafter, UNDP Guidance Note on Due Diligence ). 8 UN, Human Rights Due Diligence Policy on UN support to non- UN security forces, New York, 2011, 2. UNDP observes that due diligence means doing a risk assessment before giving support, being transparent with national partners about the legal binding and core principles governing provision of UN support and ensuring an effective implementation framework. UNDP Guidance Note on Due Diligence, p As interlocutors offered opinions or claimed facts with regard to certain events or programmes that sometimes differed materially from those offered or claimed by others, a caveat should be placed on the accuracy of certain statements. 10 Somali National Programme, p Estimates for the number of al- Shabaab fighters range from about 4,000 to as many as 12,000 (in the past), although the number of fighters that would actually be processed by the Somali National Programme is expected to be only a percentage of the total given the likelihood of spontaneous return of some fighters. 12 The Somali National Programme, p. 8. 4

8 transparency and accountability as essential, and the FGS commits itself to ensure programme implementation is consistent with Somalia s obligations and in compliance with the principles of international law to respect, promote and encourage respect for international humanitarian law, human rights and refugee laws. Legal and policy instruments will be developed and adopted in a transparent and accountable manner and procedures for monitoring will be put in place. 13 C. The situation in Somalia 1.6 Although the FGS, supported by AMISOM, 14 has secured effective control over an increasing area of South Central Somalia, armed conflict and armed violence continues in many areas. Ethiopian forces are also operating within Somalia with the consent of the FGS and are party to the conflict with al- Shabaab. During this armed conflict, all parties to the conflict, whether armed forces or armed groups, but especially al- Shabaab, have been accused of serious violations of international humanitarian law and human rights. 15 In this regard, in May 2013 UNSCR 2102 welcomed the FGS s commitment to improving human rights in Somalia, but expressed its concern at the reports of violations of human rights, including extrajudicial killings, violence against women, children and journalists, arbitrary detention and pervasive sexual and gender- based violence, particularly in camps for internally displaced persons, and underscored the need to end impunity, uphold human rights and to hold accountable those who commit any such related crimes In preparation for the twenty- fourth session of the UN Human Rights Council in September 2013, a new report by the Independent Expert on the situation of human rights in Somalia (hereafter, the Independent Expert) found that the practical situation of disengaged combatants and youth at risk calls for immediate action, pending consideration and development of a State policy and legal framework. It is equally important that all parties comply with the observance of human rights and humanitarian law, and ensure that protection at the front line of disengagement is not put aside until a formal policy/legal framework has been worked out. 17 The Independent Expert further noted the special need of protection of child combatants More broadly, based on discussions with the FGS, a post- transition human rights road map for Somalia has been proposed. 19 The Government s decision to adopt such a road map was 13 Ibid., p There are five troop- contributing nations to AMISOM: Burundi, Djibouti, Kenya, Sierra Leone, and Uganda. au.org/, accessed on 31 July See Report of the Secretary- General on Somalia, UN doc. S/2013/326, 31 May 2013, 46; Report of the Independent Expert on the situation of human rights in Somalia, Shamsul Bari, UN doc. A/HRC/24/40, 16 August 2013, Amnesty International, Annual Report 2013: Somalia, ; and also see, e.g., Human Rights Watch, World Report 2013: Somalia, report/2013/country- chapters/somalia. In its preambular paragraph 7, UNSCR 2102 condemned recent terrorist attacks which have undermined peace and security in Somalia. 16 UNSCR 2102, preambular paragraph 8. On 6 August 2012, an action plan was signed in Mogadishu by then Deputy Prime Minister and Minister of Defence, Hussein Arab Isse, on behalf of the TFG, and Deputy Special Representative of the Secretary- General for Somalia, Peter de Clercq, on behalf of the UN. The action plan commits the Somali National Armed Forces, allied militia, and military groups under its control to ending the killing and maiming of children in contravention of international law. Somalia Signs Action Plan on Killing and Maiming of Children in Armed Conflict, 6 August 2012, signs- action- plan- on- killing- and- maiming- of- children- in- armed- conflict/. 17 Report of the Independent Expert on the situation of human rights in Somalia, Shamsul Bari, UN doc. A/HRC/24/40, 16 August 2013, 32. The report was submitted by the Independent Expert pursuant to Human Rights Council Resolution 20/21, and covers the period from September 2012 to July Ibid., Ibid.,

9 welcomed by the Human Rights Council at its twenty- third session, and the Council took the decision to hold, at its twenty- fourth session, a stand- alone high- level interactive dialogue with the aim of exploring how all stakeholders can work effectively towards the finalization and implementation of the road map and the realization of human rights in Somalia. 20 This road map should include action to address all disengaged and disengaging combatants. D. Summary terms of reference and layout of the paper 1.9 In summary, the terms of reference for this paper were as follows: To clarify existing legal provisions in national and international legal instruments and procedures that may be applicable to Somalia in order to inform the FGS in its development of a policy and legal framework for handling disengaged combatants. To map other similar initiatives that may be currently conducted by other stakeholders and having a similar purpose and to establish links with these initiatives and ensure the value added of this project. To identify gaps or contradictions in legislation required to frame issues of disengaged combatants, including any translation needs of national law, constitution gaps in current legislation, penal code and the identification of the relevant bodies of law that will be applicable to the conflict and combatants (human rights, IHL, Shari a, etc.). Based on the review, to carry out legal analysis and provide recommendations on pertaining issues, including: (a) the definition, legal status, and procedure to distinguish between combatants who voluntarily surrender or are captured; (b) the development and clarification of criteria to define the categories of disengaged combatants (e.g. the current sub- divisions of high, medium or low risk elements); (c) the development of procedures, processes and membership of verification teams for the application of eligibility criteria including the disengaged combatants rights/government obligations towards the current sub- divisions of high, medium and low risk elements; (d) the definition of judicial procedures to be followed and disengaged combatants accountability for actions committed during their time as fighters; and (e) the institutional framework for treatment of the current sub- divisions of high, medium and low risk elements, including the mechanisms to be applied to ensure adherence to human rights. To identify institutional arrangements and configurations required to address gaps in legislation and governing functions, and develop options and recommendations to FGS and UN to assist the government develop, promulgate and implement a legal and policy framework for disengaged combatants The remainder of this paper comprises three main sections. Section 2 provides an overview of the international and national legal context, including explanation of the international legal meaning of key terminology as and where relevant. Section 3 describes the key phases in disengagement and the legal implications and offers a brief overview of existing or planned initiatives pertaining to these key phases. Section 4 identifies actual or potential gaps in the normative framework, first under applicable international law and then under Somali law, and offers 20 Human Rights Council Decision 23/114. 6

10 recommendations for action to address those gaps, including through mitigation measures. A bibliography completes the paper. 2. Overview of the legal context 2.1 This section provides an overview of both the international legal context and the national legal context, as each pertains to the Somali National Programme. Sub- section A opens with an explanation of the relevant branches of international law that govern the situation in Somalia. It also identifies duty bearers under the applicable law. International law applicable to the armed conflict in Somalia is then summarized based on the classification of the conflict under IHL. Sub- section B describes relevant Somali national law, in particular national legislation, Shari a, and local custom (xeer). A. The international legal context 2.2 International law governs a wide range of acts by states and other entities and bodies that have international legal personality. This includes certain acts by international organizations, such as the United Nations 21 or the African Union. International law also governs, in certain circumstances, the acts of armed groups and even the acts of individuals. A state cannot avoid responsibility for an internationally wrongful act by referring to its own domestic legislation Two main sources of international legal rules are custom and treaty. 23 Customary international law refers to legal rules that have become generally binding on all states, even if the 21 An example of practice of aid or assistance concerning an international organization is provided by an internal document issued on 12 October 2009 by the UN Office of Legal Affairs (OLA). This concerned support by the UN Mission in the Democratic Republic of the Congo (MONUC) to the Forces armées de la République démocratique du Congo (FARDC), and the risk, to which an internal memorandum had referred, of violations by the latter forces of international humanitarian law, human rights law and refugee law. OLA wrote: If MONUC has reason to believe that FARDC units involved in an operation are violating one or the other of those bodies of law and if, despite MONUC s intercession with the FARDC and with the Government of the DRC, MONUC has reason to believe that such violations are still being committed, then MONUC may not lawfully continue to support that operation, but must cease its participation in it completely. MONUC may not lawfully provide logistic or service support to any FARDC operation if it has reason to believe that the FARDC units involved are violating any of those bodies of law. This follows directly from the Organization s obligations under customary international law and from the Charter to uphold, promote and encourage respect for human rights, international humanitarian law and refugee law. Commentary on Article 14 ( Aid or assistance in the commission of an internationally wrongful act ), in International Law Commission (ILC) 2011 Draft articles on the responsibility of international organizations, with commentaries, p. 37. Document available at: 22 See, e.g., Article 3 ( Characterization of an act of a State as internationally wrongful ), ILC 2001 Draft Articles on the Responsibility of States for Internationally Wrongful Acts: The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law. As the ILC commentary on this provision reiterates: a State cannot, by pleading that its conduct conforms to the provisions of its internal law, escape the characterization of that conduct as wrongful by international law. An act of a State must be characterized as internationally wrongful if it constitutes a breach of an international obligation, even if the act does not contravene the State s internal law even if, under that law, the State was actually bound to act in that way. Yearbook of the International Law Commission 2001, Report of the Commission to the General Assembly on the work of its fifty- third session, Vol. II, Part 2, New York, 2001, p Statute of the International Court of Justice, Article 38. A third main source of law, general principles of law recognized by civilized nations, is less relevant for the purposes of this paper. 7

11 rules are not inscribed in an international treaty or even if a state has not ratified a particular treaty in which they are so inscribed. 24 Treaties are legally binding international agreements. Unless the relevant rules have become part of customary law, however, they are generally only binding on those states that have become a party to them (states parties). Such adherence normally occurs by distinct acts of signature and of ratification Three branches of international law are most relevant to the challenge of treating disengaged combatants : international humanitarian law, international human rights law, and international criminal law. These branches of law are now summarized in turn. International humanitarian law 2.5 IHL, which is also known as the international law of armed conflict or the law of war, generally applies only to situations of armed conflict. 26 Its intent is to reduce as far as possible the suffering engendered by warfare, both to civilians and to former fighters, 27 as well as (though to a much lesser extent) to those actively engaged in fighting. 28 It recognizes that a certain level of suffering is inherent to the conduct of warfare, and, through the rule of proportionality, that even scrupulous respect for IHL may unavoidably result in civilian deaths and injuries and destruction of or damage to civilian objects There are two classifications of armed conflict under IHL: international armed conflict (IAC), and armed conflicts of a non- international character (NIAC). Today, NIACs are by far the more common form of armed conflict, although the international treaty regulation of international armed conflicts is considerably more developed than the law governing NIACs. Each conflict typology has a distinct (though overlapping) legal regime that governs the acts of all of the parties to the particular conflict, although today the differences between the two legal regimes are relatively minimal, owing largely to the significant development of customary international law governing NIACs. Based on the fragmentation of conflicts theory, the same territory may involve two or more armed conflicts. 30 International armed conflict 2.7 An IAC is a conflict between two or more states 31 as well as forcible military occupation of another state (even if the occupation is not militarily opposed by the armed forces of the state being occupied). The threshold of violence necessary to amount to an IAC is generally agreed to be very low (though arguably small- scale border incidents do not constitute an IAC). The four 1949 Geneva 24 The requirements for customary international law are a general (i.e. not universal) practice of states (usus) that is recognized as legally binding (opinio juris). See, e.g., International Court of Justice (ICJ), Continental Shelf case (Libyan Arab Jamahiriya v. Malta), Judgment, 3 June 1985, ICJ Reports 1985, pp , Accession constitutes a single act of adherence to a treaty and is specifically allowed by many treaties. 26 Certain IHL provisions do, though, apply in peacetime; for example, the obligation to disseminate the rules of IHL to armed forces as well as to the population at large. 27 Particularly those who have surrendered or who are hors de combat, either by virtue of their wounds or because of sickness. 28 For instance, through the rule that prohibits the use of means or methods of warfare of a nature to cause superfluous injury or unnecessary suffering. 29 Consonant with the rule of proportionality, however, an attack which may be expected to cause excessive incidental civilian harm compared with the concrete and direct military advantage must be cancelled. Deliberately launching an attack in the knowledge that it will cause excessive incidental civilian harm is a war crime in both IACs and NIACs. 30 Thus, for example, in Libya in 2011 there was an IAC between certain NATO forces and the Gadhafi regime, and a separate NIAC between the Gadhafi regime and an organized armed opposition. 31 In the past, a declaration of war would sometimes be made by one state against another. 8

12 Conventions and 1977 Additional Protocol I, most provisions of which represent customary international law, are primary sources of IHL governing IACs. Non- international armed conflicts 2.8 NIACs are all other armed conflicts, covering, in particular, a conflict between one (or more) state(s) and an organized armed group, such as is the case in Somalia (see 2.20 below). A NIAC may also arise between two or more organized armed groups even if no governmental army intervenes in the fighting. The necessary threshold of violence for the existence of a NIAC is significantly higher than for an IAC, and excludes situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature To constitute a party to a NIAC an armed group must not only engage in military confrontations with a state armed force, it must also have a basic command and control structure and the ability to conduct sustained military operations. 33 This paper focuses on the existence of a NIAC between the FGS and AMISOM against al- Shabaab. The existence of such a conflict is generally accepted and is not believed to be controversial as a matter of IHL Common Article 3 to the four 1949 Geneva Conventions and 1977 Additional Protocol II, as well as a significant corpus of customary international law, are the primary sources of IHL governing NIACs. They apply to all parties to the conflict, including al- Shabaab. War crimes 2.11 Serious violations of IHL, such as murder, rape, or torture linked to an armed conflict, are war crimes. War crimes may only be committed in connection with an armed conflict, whether international or non- international in character. International human rights law 2.12 Human rights law exists primarily to ensure that the state respects the individual and promotes his or her well- being, as well as to protect the rights of individuals against other authorities or actors that might infringe upon them. A wide range of rights exist, but most relevant for our purposes are the following: The right to life, The right to freedom from torture or other cruel, inhuman, or degrading treatment or punishment, The right to liberty, The right to a fair trial, and The right to security See, e.g., Article 1(2), 1977 Additional Protocol II. This provision is widely considered to be declaratory of customary IHL. 33 See, e.g., S. Casey- Maslen (ed.), The War Report: 2012, Oxford University Press, Oxford, forthcoming (December 2013), Part I, Criteria for the Existence of a Non- International Armed Conflict ; and Part II Armed Conflict in Somalia in Socio- economic rights to food, education, health, housing, work, and an adequate standard of living should also not be forgotten. 9

13 Box 2. The meaning of torture and cruel, inhuman or degrading treatment under international law Torture is severe physical or mental suffering that is intentionally inflicted or which is conducted for a purpose (e.g. to elicit a confession). Torture is always unlawful whether within or outside an armed conflict. When committed as part of an armed conflict it is a war crime. Cruel treatment includes harsh physical or mental mistreatment of a person. Inhuman or degrading treatment refers to acts designed to humiliate a person, for example stripping them naked and parading them in a detention facility. Any such treatment is unlawful. Force may only be used against a detainee to the extent strictly necessary and must not be used to punish a detainee. Acts of cruel, inhuman, or degrading treatment linked to an armed conflict are also punishable as war crimes It is always unlawful to summarily, arbitrarily, or extrajudicially execute a person or to torture, rape, or otherwise physically or sexually abuse anyone in your power. A state may detain a person only in accordance with applicable law and all detainees must be treated humanely and protected against harm. If a person is charged with a criminal offence, fair trial guarantees must be assured Human rights law applies at all times and in all situations although it is possible, in times of emergency, to derogate from full observance of (i.e. not to fully respect) certain rights. Core human rights, however, such as the rights to life and to freedom from torture, may never be subject to derogation. The content of the right to life during the conduct of hostilities in an armed conflict (i.e. on the battlefield ), in particular with respect to the use of force by a party to an armed conflict, will though be interpreted in the light of applicable IHL 35 (in particular the rules of distinction, proportionality, and precautions in attacks). 36 Duty bearers under international human rights law in Somalia 2.15 The primary duty bearer under human rights law in Somalia is the Federal Government of Somalia, including all of its organs (e.g. government ministries, the army, the police, the National Security Agency). 37 In addition, however, contributing states to AMISOM as well as Ethiopia also hold extraterritorial human rights obligations to, at least, respect the core human rights of individuals in Somalia with whom they interact. Thus, the members of AMISOM and Ethiopia may not, inter alia, arbitrarily deprive a person of his or her life, commit acts of torture or cruel, inhuman, or degrading treatment or punishment against him or her, or arbitrarily deprive a person of his/her liberty More controversial is the application of international human rights law to armed groups (including militia), but there is increasing acceptance that groups are legally bound to respect core human rights, including the right to life and the right to freedom from torture. Where such groups effectively control territory (e.g. as does al- Shabaab), they may hold more extensive human rights obligations. Thus, the UN Assistance Mission in Afghanistan stated in February 2012 that: While non- State actors in Afghanistan, including non- State armed groups, cannot formally become parties to international human rights treaties, international human rights law increasingly recognizes that 35 See, e.g., ICJ, Nuclear Weapons Advisory Opinion, 1996, See, e.g., List of Customary Rules of International Humanitarian Law, published by the ICRC in 2005, Rules 1 24, available at: law- rules.pdf. 37 Somalia also bears state responsibility under international law for the acts of GOS- sponsored or - supported militia groups. 10

14 where non- State actors, such as the Taliban, exercise de facto control over territory, they are bound by international human rights obligations While the UN is not itself party to human rights treaties (many of which have, though, been adopted by UN bodies or diplomatic conferences held under UN auspices), promoting human rights is one of the main purposes of the organization according to its Charter. As noted in Paragraph 2.2 above, the UN as an international organization is legally bound by customary human rights law. It must also not be complicit in (i.e., must not aid or assist) human rights violations by others, as described by the International Law Commission (ILC) and its 2011 Draft articles on the responsibility of international organizations. 39 International criminal law 2.18 International criminal law exists to repress and punish individuals who have committed certain egregious acts (international crimes) such as genocide, crimes against humanity, 40 or war crimes. 41 Since 2002, an International Criminal Court (based in The Hague) has been in operation, pursuant to a Statute adopted by states in Rome in 1998 (hereafter, the ICC Statute). Its first successful prosecution occurred in 2012, resulting in the incarceration of a leader of a non- state armed group in the Democratic Republic of Congo for war crimes, including child recruitment. The Court has been criticized by several African leaders as well as by the African Union for an excessive focus on prosecuting Africans. 42 In this regard, Somalia has stated that it fully supports the principles enshrined in the ICC Statute and is committed to ending the persisting culture of impunity and ensuring that perpetrators of violations of human rights and IHL are held accountable for their actions and that justice is done. 43 It has cautioned, though, that: At the moment conditions are not ripe for Somalia to become a party to the Rome Statute of the International Criminal Court. Progress in the national reconciliation strategy is a pre- requisite to any meaningful discussion of the ratification. The Government is firmly 38 See e.g. UN Assistance Mission in Afghanistan (UNAMA), Afghanistan: Annual Report 2011, Protection of Civilians in Armed Conflict, Kabul, February 2012, p. iv. 39 According to the 2011 Draft articles on the responsibility of international organizations, adopted by the ILC at its sixty- third session, in 2011, and submitted to the UN General Assembly (2011 Draft Articles): An international organization which aids or assists a State or another international organization in the commission of an internationally wrongful act by the State or the latter organization is internationally responsible for doing so if: (a) the former organization does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that organization. Article 14: Aid or assistance in the commission of an internationally wrongful act, 2011 Draft Articles. See also Meeting Summary: Legal Responsibility of International Organisations in International Law, Summary of the International Law Discussion Group meeting held at Chatham House on 10 February 2011, available at: pdf. 40 Crimes against humanity are serious crimes committed as part of a widespread or systematic attack against a civilian population where the perpetrator has knowledge of the attack. They can be committed within or outside an armed conflict. Acts amounting to crimes against humanity include murder, torture, rape, or other sexual violence, enforced disappearances, and forced transfer of populations. 41 Whether or not an international crime of terrorism exists under customary international criminal law is controversial, but the most widely held view is that it does not. The definition of terrorism under international law remains controversial (and a draft treaty on the issue of terrorism has still not been adopted in large part as a result) as certain states contest whether, for instance, national liberation movements fighting against the state commit terrorism and whether individuals that respect IHL may still be guilty of terrorism. 42 In early September 2013, the Kenyan parliament voted to withdraw from the ICC Statute. If Kenya proceeds formally to withdraw from the Statute it will be the first state to do so. 43 Somalia Response to UPR Recommendations,

15 committed to creating the conditions that would allow Somalia s ratification of the Rome Statute of International Criminal Court in the future. Such conditions that would create a favourable environment include more in- depth study of the Statute, raising awareness and understanding of the Statute and the fact that it has no retroactive jurisdiction Under the 1949 Geneva Conventions, every state has to take necessary measures to suppress all acts contrary to the Convention. 45 This applies to violations of IHL that occur in non- international as well as international armed conflicts. 46 The Conventions further provide that: In all circumstances, the accused persons shall benefit from safeguards of proper trial and defence. A number of special tribunals and courts have prosecuted/are prosecuting international crimes, particularly war crimes and crimes against humanity, including the International Criminal Court, the Yugoslav and Rwanda tribunals, and the Special Court for Sierra Leone (SCSL) a hybrid court that combines domestic and international law and national and international judges. 47 The SCSL may offer valuable lessons for moving forward with the rule of law in Somalia as the model of national and international judges working together and applying a mix of domestic and international law can help to assure a fair trial, respecting national sovereignty while also building the capacity of national judges to apply international law. International law applicable to the armed conflict in Somalia The status of the conflict under international law 2.20 As noted above, a NIAC is ongoing in Somalia, the principal parties to that conflict being the FGS and AMISOM as well as Ethiopia on the one side, and al- Shabaab forces on the other. All these parties are bound by customary law governing the conduct of hostilities. This requires that they only target legitimate military objectives and they must respect and protect anyone within their power who is not, or no longer, participating directly in hostilities. Relevant treaty law applicable to the NIAC in Somalia is Common Article 3 to the four 1949 Geneva Conventions. Somalia is not yet party to 1977 Additional Protocol II, which also governs high intensity NIACs that fulfil certain criteria, 48 but given the extent of customary law applicable to NIACs, the lack of Somali adherence to the Protocol is arguably not of critical importance. 44 Ibid. 45 See, e.g Geneva Convention IV, Art In addition, certain war crimes committed in an IAC ( grave breaches of the Geneva Conventions and 1977 Additional Protocol I) require either prosecution or extradition for prosecution by each and every state party to the conventions. This obligation is known as compulsory universal jurisdiction or by its Latin name, aut dedere aut judicare. 47 The SCSL was set up jointly by the Government of Sierra Leone and the UN. It is mandated to try those who bear the greatest responsibility for serious violations of IHL and Sierra Leonean law committed in Sierra Leone since 30 November Each Trial Chamber consists of three Judges, one appointed by the Government of Sierra Leone and two by the UN Secretary- General. The Special Court is the first international criminal tribunal to be funded entirely from voluntary contributions from governments. See sl.org/. 48 According to Article 1(1) of 1977 Additional Protocol II, the Protocol covers armed conflicts which take place in the territory of a High Contracting Party [i.e. a state party] between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. 12

16 The conduct of hostilities 2.21 In accordance with IHL, attacks must only be directed against lawful military targets. 49 Deliberate attacks against civilians not participating directly in hostilities, and attacks not directed against lawful military targets (indiscriminate attacks), are war crimes. There is also a specific war crime of the commission of acts or threats of violence the primary purpose of which is to spread terror among the civilian population. 50 Attacks against lawful military targets that are expected to cause excessive civilian harm are also unlawful. Where it is known that such excessive harm will result from the attack, this is also a war crime under customary law. 51 Treatment of anyone within the power of a party to armed conflict 2.22 Any person held by a party to armed conflict for any length of time, or with whom the party interacts and who is not participating directly in hostilities, must be respected and protected against harm. All forms of mistreatment are prohibited. Murder, torture, rape, or other physical or sexual abuse of any such individual constitutes a war crime. There is also a specific war crime of acts of terrorism against such individuals. 52 The recruitment of children less than 15 years of age is also a war crime. 53 Use of force against, and treatment of, members of armed groups that are not party to armed conflict 2.23 Any member of another armed group that is not party to an armed conflict and therefore not bound by IHL must be dealt with in accordance with the international law of law enforcement, which primarily comprises human rights law. This means that the Somali authorities must seek to arrest individuals within such armed groups who are suspected of criminal offences. They may not use potentially lethal force (e.g. firearms or explosive weapons) in the context of a law enforcement operation except in very narrow circumstances, namely only insofar as such force is required in self- defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. Intentional lethal force may only be used when strictly unavoidable to protect life. Treaty law 2.34 Somalia is a state party to a number of international humanitarian law and international human rights treaties, as set out in Table 1. As noted above, it is not party to the Rome Statute of the International Criminal Court (ICC Statute), and Somalia has not undertaken to adhere to the ICC Statute in the near future. The fact of being only a signatory to a treaty (see Box 3 overleaf) does not make the state a party to the treaty. 49 This encompasses primarily military bases, weapons, and other military materiel as well as those individuals belonging to a party to the conflict who are using them in military operations. The mere stockpiling or manufacture of weapons is not enough to justify attacks under IHL. 50 Article 13(2), 1977 Additional Protocol II; such a war crime is not, though, included in the ICC Statute. 51 See ICRC Customary IHL Rule 156 ( Definition of War Crimes ), List of war crimes: (iv) Other serious violations of international humanitarian law committed during a non- international armed conflict, available at: ihl/eng/docs/v1_rul_rule Article 4(2), 1977 Additional Protocol II; such a war crime is not, though, included in the ICC Statute. 53 See ICRC Customary IHL Rule 156 ( Definition of War Crimes ), List of war crimes: (iv) Other serious violations of international humanitarian law committed during a non- international armed conflict. 13

17 Table 1: Somali adherence to selected IHL, human rights and international criminal law treaties Name of treaty Status of Somalia IHL 1949 Geneva Conventions state party 1977 Additional Protocols I and II not party 1997 AP Mine Ban Convention state party International Human Rights Law 1966 International Covenant on Civil and Political Rights state party 1966 International Covenant on Economic, Social and Cultural Rights state party 1979 Convention on the Elimination of Discrimination Against Women not party 1981 African Charter on Human and Peoples Rights state party 1984 Convention Against Torture state party 1989 Convention on the Rights of the Child (CRC) signatory 2001 Optional Protocol to the CRC on Children in Armed Conflict not party International Criminal Law 1998 Rome Statute of the International Criminal Court not party International Weapons Law 2004 Nairobi Protocol on Small Arms state party Box 3. Signatories and states parties to international treaties A signatory to a treaty is a state that has signed it. A treaty signatory may not lawfully undermine a treaty but is not obliged to implement all of its provisions. The term is often misused to describe states that are actually party to a treaty (i.e. they have not only signed it they have also ratified it). Thus, a state normally becomes a state party to a treaty (i.e. is formally bound by all its provisions) when it signs and ratifies it (or accedes to it a one- stop process of adherence) Burundi, Djibouti, Ethiopia, Kenya, Sierra Leone, and Uganda are all party to the 1949 Geneva Conventions and 1977 Additional Protocols, as well as to many key human rights instruments. Burundi, Djibouti, Kenya, and Uganda are party to the ICC Statute. B. The national legal context 2.36 Somali national law is a complex interaction of national legislation (largely imported from English common law and from India, and Italy), Shari a, and local customary law (xeer). According to one expert, the Law on the Organisation of the Judiciary, adopted by the National Assembly of Somalia in 1962, elaborated a somewhat confusing amalgamation of laws and jurisprudence. The nation s civil and penal codes were based on the pre- World War II Italian legal system, while criminal procedure was based on the Indian Code. In addition, Shari a was maintained for family, inheritance, and minor civil matters, and xeer was recognised as a legitimate option for the settlement of clan disputes. 54 Laws and custom are enforced by both formal and traditional forms of justice It could be argued that harmonization of national law is the way forward though a 2005 report for the Centre for Humanitarian Dialogue cautioned against such an approach: 54 Dr Andre Le Sage, Stateless Justice in Somalia/Formal and Informal Rule of Law Initiatives, Report, Centre for Humanitarian Dialogue, July 2005, accessed at: 14

18 Somalia should not seek to adopt one justice system to the detriment of the others. The multiplicity of systems has afforded Somalis options in responding to their predicament of state collapse, and each form of justice has its own advantages. While state statutory law offers a discrete system of rules and may better reflect international human rights standards, shari a is also a comprehensive justice system that Somalis commonly recognise as legitimate. At the same time, customary xeer [Somali customary law] is the most far- reaching of the Somali justice systems, particularly in rural areas that are commonly beyond the reach of formal judicial systems, and is the most effectively enforced. In addition, the different justice systems have over the past decade served to maintain a modicum of peace and security in various parts of the country. Efforts to force one system across all areas would undermine those systems that function locally, and rule of law assistance could in those circumstances create more conflict by undermining the structures that currently underpin local peace and security arrangements. In short, efforts towards harmonisation should not be undertaken lightly. Questions of constructing a single, coherent justice system in Somalia involve technical considerations and inputs, but are essentially political ones Nonetheless, Somalia stated in 2011 that the codification and harmonisation of national legislation, including customary law (Xeer), in conformity with Somalia s international obligations and existing international human rights standards is an immediate priority for the Government of Somalia. 56 Based on information provided to the consultant from a range of sources, however, the prospects for speedy reform of national law are slight at best. This has potentially significant implications for possible UN support to the Somali National Programme. National legislation 2.39 The Somali Penal Code came into force on 2 April It includes the death penalty for a range of criminal offences. Furthermore, Somalia is one of at least 19 states worldwide that retain the mandatory death penalty on their statute book in some form, 58 a measure that arguably violates international human rights law. 59 Already in 2011, Amnesty International reported that the Transitional Federal Government of Somalia (TFG) had resorted to using military courts and that those sentenced to death had not had an effective opportunity to appeal their sentence. 60 The legal basis for using military courts to punish civilians both under national and under international law is dubious at best, although a number of states continue to resort to such courts to prosecute criminal 55 Ibid. 56 Somalia Response to UPR Recommendations, Amnesty International, Death Sentences and Executions 2011, London, March 2012; Death Penalty Worldwide, last accessed 3 December Penal Reform International, Death Penalty Information Pack, April First, and critically, the mandatory execution of a person constitutes arbitrary deprivation of life, since it is not a sentence imposed after consideration of whether this exceptional form of punishment is appropriate in all the circumstances of the case. Second, the mandatory nature of such punishment amounts to cruel, inhuman, and degrading punishment by failing to permit mitigating factors to be considered in sentencing (or by failing to distinguish between different levels of criminal responsibility), thereby producing arbitrary results. Third, by preventing the convict from having a sentencing hearing, it amounts to a violation of the right to a fair trial by precluding full access to justice. 60 The 1962 Somali Penal Code states that Somali courts are free to consider enumerated circumstances or any other circumstance that the Judge considers to be such as to justify a lessening of the punishment ; however, it is not known if this is being applied by the military courts Penal Code, Legislative Decree No. 5, 16 December 1962, Arts. 40, 109, 119, and

19 offences under national law, including treason, insurrection, and murder. Already in 2002, Harold Koh, later the Legal Advisor in the US Department of State, affirmed that: military commissions create the impression of kangaroo courts, not legitimate mechanisms of accountability. [M]ilitary commissions provide ad hoc justice, hence uncertain protection for defendants rights. [T]he battle against global terrorism requires credible justice, which military commissions cannot provide Under Common Article 3 to the 1949 Geneva Conventions and under the ICC Statute, the following is a war crime in a NIAC: The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable It has been reported to the consultant that many al- Shabaab fighters and commanders have been charged and convicted by military courts under Article 221 of the Penal Code ( Armed Insurrection against the Powers of the State ), 63 which provides as follows: Whoever promotes an armed insurrection against the powers of the state shall be punished with imprisonment for life and where the insurrection ensues, with death. Yet, under the 2012 Provisional Constitution of the Federal Republic of Somalia (FRS), there is no provision allowing specifically for military tribunals, as was the case with the earlier Constitution adopted by the TFG. This heightens concern as to the legality of these tribunals, especially for trying offences by persons who are not members of the Somali armed forces. 64 Shari a 2.42 Shari a is an important source of law according to the 2012 Provisional Constitution. 65 Indeed, according to Article 2(3), No law which is not compliant with the general principles and objectives of Shari a can be enacted. In the past, Shari a in Somalia is said to have focused mainly on civil law matters rather than on criminal law H. H. Koh, The Case Against Military Commissions, Faculty Scholarship Series, Paper 2107, Yale Law School, 2002, Rivkin, Jr. and Casey observe, however, that International law, it should be noted, does permit the trial of civilians by military courts in some limited circumstances. Thus, under Geneva Convention IV, the population of an occupied territory can be subjected to the occupying powers non- political military courts for certain security offenses. David B. Rivkin, Jr. & Lee A. Casey, The Use of Military Commissions in the War on Terror, Boston University International Law Journal, Vol. 24 (2006), note Article 8(2)(d)(iv), ICC Statute. 63 The penal code is variously said to be based on the Italian military law of 1941, and that of Report of the Roundtable on Military Justice and Human Rights in Somalia, 2013, p. 4; and see 64 On 21 August 2012, Mexico s Supreme Court declared unconstitutional the core provision of domestic legislation that had allowed the military to try criminal offences against civilians by military tribunals. See, e.g., Justin Halatyn, Mexican Supreme Court upholds civilian control in drug war, Hemispheric Affairs, 17 September 2012, supreme- court- upholds- civilian- control- in- drug- war/. 65 Provisional Constitution, adopted on 1 August 2012, accessed at: 66 Information provided by Simon Ridley, Project Manager, Access to Justice, Rule of Law and Security Programme, UNDP, 27 July

20 Local custom 2.43 Local customary law (xeer) remains an important source of Somali law as well as offering a mechanism for dispute resolution. As one expert has reported, a xeer process is applied after a violation of customary law has taken place. Once an incident has occurred, a delegation of elders, known in Somali as an ergo, is dispatched by one or both of the concerned clans, or a neutral third- party clan, to begin mediating the dispute and preventing it from spreading. The emissaries mission is to convey a message to the other side and to prepare the ground for holding a xeer court or jury council to settle the case. According to xeer, it is incumbent upon the aggrieved clan to make the necessary investigations into an incident and determine the harm committed before presenting their case to other clans Xeer cases take one of two different forms, either a mediation process ( masalaxo ) or an arbitration process ( gar dawe ). In the former, the laws and punishments prescribed by xeer are set aside in order to reach a final judgment that satisfies both parties. In the latter, which is primarily used for the most grievous crimes and the most recidivist criminals, xeer is strictly applied in a winner takes all manner. Most clans are said to opt for the mediation process In a meeting of directors- general of concerned ministries, 69 however, which was held at UNSOM headquarters in Mogadishu on 4 August 2013, considerable reluctance was expressed to the suggestion that xeer or other forms of alternative dispute resolution might offer a way to address the responsibility for crimes by former al- Shabaab combatants. If such an approach were nonetheless envisaged, 70 it would be advisable (though not legally required) also to consult with concerned communities on the desirability of such an approach, for it has implications for efforts to tackle impunity for war crimes as well as obvious protection concerns. 3. Key phases in disengagement and the legal implications 3.1 This section reviews key phases in disengagement of combatants, describing the potential legal implications for each. The phases are reviewed under following headings: surrender; reception and detention; determination of status; detention (including the conditions of detention); handover or transfer; prosecution and fair trial rights; sentencing (including the imposition of the death penalty, terms of imprisonment, and alternative forms of justice); release; and post release. A. Surrender 3.2 Under IHL, it is unlawful to fire at a fighter who is surrendering. 71 IHL does not distinguish 67 Dr Andre Le Sage, Stateless Justice in Somalia/Formal and Informal Rule of Law Initiatives, Report, Centre for Humanitarian Dialogue, July Ibid. 69 Somali Ministry of Defence, Ministry of the Interior, Ministry of Information and Communication, and Ministry of Youth and Sports. 70 The Somali National Programme, for instance, provides that judicial procedures, led by the Ministry of Justice, will include the establishment of special courts and alternative dispute resolution mechanisms. Somali National Programme, p According to the ICRC 2005 Customary IHL study: Attacking persons who are recognized as hors de combat is prohibited. A person hors de combat is: (a) anyone who is in the power of an adverse party; (b) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness; or (c) anyone who clearly expresses an intention to surrender; provided he or she abstains from any hostile act and does not attempt to escape. Of course, the widespread use of suicide attacks, belonging to al- Shabaab in particular and including attacks by women and children, makes surrender an inherently dangerous act for all concerned. 17

21 between an individual who surrenders on or near the battlefield or an individual who, in the cold light of day, voluntarily comes to an opposing party to the conflict and hands himself or herself in. All must of course be treated humanely and protected against all forms of violence and abuse. B. Reception and detention 3.3 Anyone received by a party to the conflict must be treated humanely. This means they must be provided with adequate food and water, given shelter and clothing, and medical treatment where needed. Medical personnel and human rights monitors should be given immediate access to all such individuals to verify their wellbeing. 3.4 A party to the conflict that receives a fighter who is surrendering must decide whether or not it will detain the person. Any enemy fighter accepted into the base or facilities of an opposing party to conflict is prima facie to be considered as a detainee even if that party uses another term, such as reception. 3.5 International human rights law lays down procedures required to prevent arbitrary deprivation of liberty, notably establishing obligations: to inform a person who is arrested of the reasons for arrest; to bring a person arrested on a criminal charge promptly before a judge; 72 and to provide a detained person with an opportunity to challenge the lawfulness of detention (so- called writ of habeas corpus) There is no basis under international law for receiving and holding, without their consent, family members of a surrendering fighter. They may, though, consent to being held and may fear for their personal safety as a result of the actions of the fighter in surrendering. This raises protection issues. 3.7 There are also particular concerns where the surrendering fighter is a child. A significant number of children have been recruited into armed groups in Somalia, especially al- Shabaab, as well as into the Somali National Army. 74 According to Article 29 of the Somali Provisional Constitution: (2) Every child has the right to be protected from mistreatment, neglect, abuse, or degradation. (4) Every child may be detained only as a last resort, for a limited time, in appropriate conditions, and must be detained separately from adults with the exception of the child s immediate family. The child s immediate family must be informed of the child s detention as soon as practicable. (6) Every child has the right to be protected from armed conflict, and not to be used in armed conflict. (7) In every matter concerning a child, the child s best interests are of paramount importance. 72 Although these two obligations are not listed as non- derogable in the relevant human rights treaties, case law has held that they may never be dispensed with altogether. 73 The right of a person deprived of liberty to challenge the lawfulness of his or her detention is an essential element of the right to liberty. See, e.g., Article 9(4), 1966 International Covenant on Civil and Political Rights. 74 On 3 August 2012, the Transitional Federal Government of Somalia (TFG) signed an action plan on the recruitment and use of children during the International Contact Group meeting in Rome. The TFG has been listed by the Secretary- General for recruitment and use of children since 2007 and for killing and maiming of children since

22 (8) In this Article a child is defined as any person under 18 years of age. On 3 August 2012, the TFG signed an action plan on the recruitment and use of children during the International Contact Group meeting in Rome. Under Point 3.1 of the Action Plan, the TFG formally committed to halt and prevent the recruitment and use of children, to release all children currently associated with its SNAF [Somali National Armed Forces] and to support their appropriate community reintegration. The TFG has been listed by the UN Secretary- General for recruitment and use of children since 2007 and for killing and maiming of children since Under customary IHL, children who are deprived of their liberty must be held in quarters separate from those of adults, except where families are accommodated as family units. 75 In addition, children affected by armed conflict are entitled to special respect and protection. 76 C. Status 3.9 If an individual is detained, a determination of the legal basis for such detention is required. Foreign armed forces would be entitled under an implied power under IHL to detain fighters (detention is not prohibited under IHL). Such a power to detain does not exist absent specific authorization from the Somali Government to foreign forces to conduct law enforcement operations in Somalia for ordinary violations of Somali domestic criminal law. Such detention may be deemed arbitrary and therefore a violation of human rights law The notion of high, medium, or low risk disengaged combatants, as referred to in the Somali National Programme document, but which is not defined therein, is not recognized under international law. According to the Programme, following reception: Individuals will be classified as high, medium, low or no risk. Criteria will be determined by the sub- committee responsible for Transition Centre Management, led by the Ministry of Interior and National Security. High risk cases will be transferred by NSA [Somali National Security Agency] to Specialized or Centralized Courts under the jurisdiction of the Ministry of Justice. Medium, low or no risk will be transferred to the districts. District (formal or traditional) courts will adjudicate, and determine whether an individual is high risk for local level purposes and goes back to the central court, or medium and low risk who go into a community based program International law would distinguish between individuals who participated directly in hostilities and who have committed war crimes (including through command responsibility) and those who have not, whatever their rank or place within an armed force or armed group. 78 Impunity for war crimes amounts to an internationally wrongful act. Should the UN endorse a process that provides for impunity for such crimes it would risk becoming complicit in a violation of international law. D. Conditions of detention 3.12 As noted above, and notwithstanding the legality or otherwise of the basis for detention, any person detained (or received or accommodated ) in a camp must be treated humanely. He or 75 ICRC 2005 Customary IHL Study, Rule 120, ihl/eng/docs/v1_rul_rule ICRC 2005 Customary IHL Study, Rule 135. See also 1989 Convention on the Rights of the Child, Arts. 38 and Somali National Programme, p Or even the civilian population. 19

23 she must be provided with adequate food, water, clothing, shelter, and, where necessary, medical attention Child detainees must be held in quarters separate from those of adults, except where families are accommodated as family units. 79 In a welcome development, the Serendi rehabilitation camp outside Mogadishu (see Box 4) has recently set up separate quarters for children participating in the reintegration process. There are, however, other concerns that must be addressed in order to comply with fundamental human rights protection of children. At the very least, human right monitors with requisite child protection expertise should be present at such camps to ensure children are not subject to violence, exploitation, abuse, or neglect Women detainees must be held in quarters separate from those of men, except where families are accommodated as family units, and must be under the immediate supervision of women. 80 No women are known or believed to have been through the Serendi rehabilitation camp. Box 4. The Serendi rehabilitation camp The Serendi camp, just outside Mogadishu, has been controversial to say the least. It is a rehabilitation camp for former al- Shabaab fighters with basic vocational training for programme participants. It is under the control of the Ministry of Interior, although it is effectively managed by an international consultant. The camp is mentioned only once in the Somali National Programme document, and moreover this occurs in a footnote. Very different views of the camp were, though, given to the consultant by the various interlocutors. What appears beyond dispute is that the camp has been operating for more than one year, with funding from Norway, Denmark, and Spain, and that many hundreds of men and boys have gone through its gates (the number of boys is unconfirmed). To date, no human rights monitor has inspected the camp, although UNSOM personnel conducted a short visit in August 2013, seemingly the first time that complete outsiders to the project were granted such access. To date, no formal follow- up on programme participants is conducted once they have left the camp. There, however, agreement appears to end. Whether or not the Somali National Security Agency (NSA) has access to the programme participants during their time in the camp is disputed. Whether or not programme participants are all genuinely free to leave without NSA approval is also contested. Whether the number of children in the camp is relatively low is far from certain. Whether the camp is secure from attack is similarly subject to differing interpretations. Nonetheless, a second camp at Beledweyne following the Serendi model was planned as of September E. Handover or transfer 3.15 If a person has been detained other than by the Somali authorities, notably by foreign armed forces operating with the consent of the FGS, the customary international law rule of non- refoulement (see Box 5 overleaf) would preclude their being handed over to the Somali authorities where there is a real risk that they may be arbitrarily deprived of their life, 81 tortured, or subjected to cruel, inhuman, or degrading treatment or punishment. This may include the risk for a child of 79 ICRC 2005 Customary IHL Study, Rule ICRC 2005 Customary IHL Study, Rule Including where this involves imposition of the death penalty without fundamental guarantees of fair trial. 20

24 being recruited into the armed forces. 82 The foreign armed forces must proactively ask whether there is a fear of being subjected to such abuses if an individual may be handed over to the government Where the UN is effectively the recipient of a former detainee (for example, for a programme of rehabilitation and reintegration), this has a number of implications for the person s protection and wellbeing. The UN will similarly have to respect the rule on non- refoulement 83 but may face additional protection concerns. The individual may allege that he or she has suffered rape, torture, or other physical or sexual abuse against those who have detained him or her previously. The individual may also confess to having committed such acts against others. These allegations will need to be properly investigated. The individual may fear being returned to a specific community. In certain cases, it may not even be safe for the individual to remain in Somalia. In any event, the UN will need to make provision for post- return monitoring of the well- being of the returnee, as well as for the other community members (some of whom may be in fear of the returnee). Box 5. Non- refoulement The international legal rule of non- refoulement precludes the transfer of a person from the jurisdiction of one state to another state if he or she would be at real risk of being tortured or killed following such transfer. Although it originated in transfers across international borders it is widely understood that it covers handover or rendition in the same territory between two or more states, including their armed forces Accordingly, qualified, experienced, and well- trained human rights monitors will be a critical element in the UN s support to the Somali National Programme if the UN and Somalia and its partners are to meet their protection responsibilities. F. Prosecution and fair trial rights 3.18 The right to a fair trial is a fundamental human right. It comprises a number of substantive and procedural elements. According to credible reports, this right not generally enjoyed by those brought before Somali courts, either in law or in practice. 84 According to the United States Department of State (US DOS), the Provisional Constitution of Somalia provided for every person to enjoy the presumption of innocence; be informed as soon as reasonably practicable, in a language that he or she understands and in detail, of the charges; have the right to communicate with a lawyer of choice whenever required; and have adequate time and facilities to prepare a defence. It also provided for free legal services for individuals who could not afford them. 85 However, the US DOS cautioned that the Provisional Constitution did not address the right to a fair and public trial 82 Committee on the Rights of the Child, General Comment No. 6: Treatment of unaccompanied and separated children outside their country of origin, UN doc. CRC/GC/2005/16, 1 September 2005, 26 8, p. 10. According to the Committee, Such non- refoulement obligations apply irrespective of whether serious violations of those rights guaranteed under the Convention originate from non- State actors or whether such violations are directly intended or are the indirect consequence of action or inaction. Ibid., An interim Standard Operating Procedure on Detention in United Nations Peacekeeping Operations, approved in 2010 and issued in 2011, does not, however, appear to mention the rule. This is potentially a major lacuna. 84 See, e.g., United States Department of State (US DOS), Country Reports on Human Rights Practices for 2012: Somalia, 85 Ibid. 21

25 without undue delay, to a trial by jury, to confront witnesses and present witnesses and evidence, not to be compelled to testify or confess guilt, or the right of appeal In a NIAC, IHL prohibits the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. 87 This is a customary law rule 88 and its violation may amount to a war crime. 89 The International Committee of the Red Cross (ICRC) has stated that the customary rule includes the following elements: Trial by an independent, impartial and regularly constituted court Presumption of innocence Information on the nature and cause of the charges Right to defend oneself or to be assisted by a lawyer of one s own choice. Right to free legal assistance if the interests of justice so require. Right to sufficient time and facilities to prepare the defence. Right of the accused to communicate freely with counsel. The right to a trial without undue delay The right of the accused to examine and to have examined witnesses The right to the assistance of an interpreter, if the accused cannot understand the language used in the proceedings Presence of the accused at the trial The prohibition on compelling accused persons to testify against themselves or to confess guilt The trial must be held in public and judgement pronounced publicly, unless this would prejudice the interests of justice Advising convicted persons of available remedies and of their time- limits A right of appeal Non bis in idem. 90 G. Sentencing Death penalty 3.20 It seems that the death penalty continues to be imposed in Somalia without guarantee or enjoyment of fair trial rights 91 and despite a formal pledge from the Government of Somalia already in 2011 that it would impose a moratorium on the carrying out of the death penalty The execution of those under 18 years of age (i.e. children under international law) is prohibited under international law, as is the execution of those who were under 18 at the time the criminal offence was committed. According to Article 6(5) of the 1966 International Covenant on Civil and Political Rights (ICCPR), any person aged under 18 who commits a crime punishable by the 86 Ibid. 87 Common Article 3 to the four 1949 Geneva Conventions. 88 According to ICRC 2005 Customary IHL Study, Rule 100: Fair Trial Guarantees: No one may be convicted or sentenced, except pursuant to a fair trial affording all essential judicial guarantees. 89 See, e.g., ICC Statute, Article 8(2)(c)(iv). 90 A person must not be punished more than once for the same act or on the same charge. 91 According to Amnesty International, in 2012 [a]t least 51 death sentences were passed, following military court trials that lacked guarantees of fairness. Amnesty International, Annual Report 2013: Somalia, #section See further Report of the Secretary- General on Somalia, UN doc. S/2013/326, 31 May 2013,

26 death penalty may not be sentenced to death even if the person is 18 years or older at the time of sentencing. It is not known if this has occurred in Somalia and therefore the issue should be clarified. Imprisonment 3.22 The US DOS has reported harsh and life- threatening prison conditions as major human rights abuses in Somalia. 93 The UN Office on Drugs and Crime (UNODC), with UK support, is building secure major crimes courtroom and refurbishing the main prison in Mogadishu, although as of writing it was not yet known when the buildings would be completed. Alternative forms of justice 3.23 As noted above, the xeer process continues to exist in Somalia. The extent to which it is perceived as acceptable for anyone suspected to have committed serious crimes would need to be tested by genuine prior consultation with concerned communities and, as noted above, initial reaction from concerned ministries was not favourable to the suggestion that the xeer process might be appropriate for al- Shabaab fighters. 94 It is also open to serious dispute whether such alternative forms of justice comply with international obligations to prosecute those suspected to have committed war crimes and to punish those convicted of such offences. Box 6. Alternative dispute resolution and disengaged combatants Although ADR is intended to support the resolution of a broad array of conflicts, such as civil and minor criminal offenses, it will also process low and medium risk disengaged combatants as part of the Government of Somalia s National Programme on the Treatment and Handling of Disengaged Combatants and Youth At- Risk. In these cases, the victim will be represented by community representatives (women, youth, elders, businessman, and religious leaders) and sentences will be aligned to the disengaged combatant s role and level of association to radical armed groups and/or other armed groups. The process follows the same ADR steps but in these cases, disengaged combatants will acknowledge their guilt and request a pardon from the community for any harm done. In turn, the community representatives review the testimony and accept the pardon. Lastly, the Mediator reviews the case against clear criteria to filter out high- risk individuals (which are then referred back to the formal civilian or military courts) and delivers a pardon conditional on the mandatory participation of the former combatant in an assigned set of rehabilitation and reintegration programmes. For example, a woman drafted by force to become a wife of a disengaged combatant will receive a different support package then a male combatant that has been radicalized In May 2013, the Government of Somalia issued a document entitled Revival of the Somali Traditional and Religious Justice System. 95 This document addresses Alternative Dispute Resolution (ADR) and disengaged combatants directly (see Box 6). According to this Government document, the processing of disengaged combatants through the ADR mechanism avoids perceptions by 93 US DOS, Country Reports on Human Rights Practices for 2012: Somalia. 94 Meeting with Directors- General of the Ministries of Defence, Interior, Information and Communication, and Youth and Sports, Mogadishu, 1 August The process of elaboration was led by the Somali Ministries of Justice, Religious Affairs, and Constitution, Federal and Reconciliation. 23