VI. Patterns of Abuses by Parties to the Conflict in Mogadishu

Indiscriminate or Disproportionate Attacks

Early in the morning of the first day, bullets started flying between the insurgents and the government; we could not even leave our homes. The militia [insurgents] that were fighting were behind our compound, I don't know if they were Al-Shaabab or Hawiye fighters. They were firing mortars and then running away. They were firing the mortars at the TFG and the Ethiopians, at the Presidential Palace and at the Ministry of Defense where the Ethiopians were based. Whenever the insurgents fired mortars at the Ethiopians, the Ethiopians responded with shells, but the Ethiopians shot them untargeted, they killed many civilians and even our animals.

-42-year-old woman from Towfiq neighborhood, describing the events of March 29, 2007[130]

While the laws of war do not prohibit fighting in urban areas, combat in Mogadishu has been conducted with little or no regard for the safety of the civilian population, resulting in massive and unnecessary loss of civilian life. All parties to the Somalia conflict have committed serious violations of international humanitarian law by using weapons in Mogadishu without discriminating between military objectives and civilians. Ethiopian forces conducted area bombardments in populated areas and failed to call off attacks that disproportionately harmed civilians. Commanders who order indiscriminate attacks knowingly or recklessly are responsible for war crimes. Casualties have been further heightened by the deployment of insurgent forces in densely populated areas and the launching of attacks from such areas. None of the parties has taken-as international law requires-all feasible precautions to spare the civilian population from the effects of attacks.

The human cost

The appalling consequences of indiscriminate attacks, the deployment of forces in densely populated areas, and the failure of all warring parties generally to take steps to minimize civilian harm is reflected in the thousands of civilians who died or whose lives were shattered by the injuries they sustained or by the loss of family members. It is also reflected in the staggering numbers of people who fled Mogadishu in March and April 2007 and in the scale of the destruction of homes, hospitals, schools, mosques, and other infrastructure in Mogadishu.

Local human rights groups and Hawiye clan elders estimated that the numbers of civilians killed in the first round of fighting in March 2007 alone ranged from nearly 400 to 1,000, with more than 4,000 others wounded.[131] Hawiye elders estimated that the second round of fighting resulted in the deaths of almost 300 civilians and wounded 587 more.[132] It is not possible to give more precise mortality figures at this stage for several reasons.

The intensity of the fighting and bombardment in late-March restricted civilian movement in and around conflict areas. As the fighting escalated on March 29, many of the dead were left in their homes, in other buildings, or even on the streets where they had been killed because it was too dangerous to collect and bury the bodies.[133] By April 2, when Ethiopian forces and Hawiye clan elders negotiated a ceasefire to collect and bury the dead, some bodies had already seriously decomposed in the heat, making identification difficult.

On April 4 and 6 the ceasefire committee of Ethiopian officials, Hawiye elders, and Red Crescent staff toured parts of the affected areas. A group of Somali Red Crescent volunteers tried to collect bodies around Ali Kamin junction and Al-HayatHospital, just south of the Stadium, which had been one of the frontlines in the previous days, but were unable to move beyond the main road into the affected neighborhoods and assess the situation more closely.[134] A credible source said that on April 4 and 6 the Somali Red Cross collected at least 24 bodies from one small section of the neighborhood around Al-Hayat, the vast majority of them civilians.[135]

According to members of the ceasefire committee interviewed by Human Rights Watch, although some of the dead were not recognizable, others were clearly identified as civilians. For instance, one body was identified by committee members as that of a "madman" who was known in the area, another was a woman who died with a prescription in her hand, and a third was a watchman who was shot while guarding private vehicles. A journalist who joined the ceasefire committee recalled a haunting sight: "I saw a mother and a child, apparently trying to flee the fighting, were caught by bullets and fell in front of their house, dead. They were holding hands."[136]

The volatile situation along the frontlines did not permit further attempts to continue collecting bodies and the operations came to a halt. The Hawiye elders estimated on April 10 that based on battlefield assessment, talking to civilians, and hospital records, more than 1,000 people had been killed in the first round of fighting alone.[137]

Given the scale of the displacement from Mogadishu and the dispersal of families across the country, it is almost impossible to methodically gather and corroborate information about dead or missing family members. In addition, many of the people who died on the spot, or were severely injured and died of their wounds before they were able to access medical care, were not registered in medical facilities or by independent sources. As one medical professional told Human Rights Watch:

Most patients die when wounded, and the worst of it is that patients can't make it to the hospital after being wounded. Most of the people who arrived at the hospital survived-less than 5 percent died once they reached the hospital. But no one can count how many people died-some just disappeared [were blown apart].[138]

Access to medical care was particularly difficult during the periods of intense fighting between March 29 and April 1 and in late-April. In addition to the constant rockets, shelling, and mortar fire, both the insurgency and the Ethiopian and TFG forces closed the roads. Thus, many wounded people had to wait until the following days to even try to access hospitals, sometimes in wheelbarrows, on donkey carts, or carried by family, friends, and neighbors.

Al-Hayat and Al-Arafat hospitals, both of which are located in the frontline areas, were also bombarded in the first days of the offensive (see below, "Attacks on Medical Facilities.") Most of the staff fled and the hospitals stopped functioning, which meant that many civilians had to undertake dangerous journeys through the city to get to functioning facilities further away, such as Medina and Kaysanay. Several Somali doctors working in the hospitals made public appeals to all parties to permit wounded civilians to access medical care, as did the International Committee of the Red Cross (ICRC), but no one heeded these appeals.[139]

Even though an unknown number of people died from their injuries or were unable to access medical care, Mogadishu's hospitals were still inundated as the fighting escalated. The types of injuries treated in the city's medical facilities illustrate the change in the means of warfare to more destructive forms of weaponry. Gunshot wounds, by far the most common type of violence-related trauma injury in Mogadishu in the first months of the year (and in prior years), were rapidly outnumbered by shrapnel wounds as the conflict escalated.

As one medical staff member noted:

The injuries and profile of the injured are different from the usual violence in Mogadishu, which is usually injuries of individuals from light weapons. Different weapons are being used than before. At the hospitals you see injuries from tank shells, mortars, Katyusha rockets. It's urban warfare in the middle of the cityYou see whole families at the hospitals, because the shells are landing on homes. The scenes at the hospital are horrible: children with legs and arms amputated, people with intestines coming out and with head injuries.[140]

Types of weaponry used in Mogadishu

Ethiopian forces, TFG forces, and the insurgency have used weaponry without sufficient precision to minimize or avoid civilian casualties in an urban setting such as Mogadishu. Some weapons, particularly the BM-21 multiple-rocket-launchers (firing "Katyusha" rockets) used by Ethiopian armed forces, are inherently indiscriminate weapons that should never be deployed in a populated urban environment. Other indirect-fire weapons, such as mortars, can be very accurate weapons when used with spotters or other guidance systems; however, Human Rights Watch's research found no evidence of the systematic use of spotters or other guidance for the mortar rounds fired by the insurgency or Ethiopian forces, making such indirect fire attacks indiscriminate. The result was hundreds of civilian casualties in a very short period.

According to photograph and video evidence and eyewitness accounts obtained by Human Rights Watch, insurgent groups in Somalia are armed with 60, 80, 81, or 82 millimeter (mm) mortars,[141]rocket-propelled grenades (RPGs), B-10 recoilless rifles, Zu-23 and Zu-50 anti aircraft guns, and various other small arms.[142] Anti-aircraft artillery mounted on the back of pickup trucks (known as "technicals") have also been a typical feature of the Somali conflict.

In 2006 the UN Panel of Experts monitoring the porous arms embargo on Somalia documented the supply to the ICU by Eritrea of large quantities of DShK (heavy machine guns), 82 and 120 mm mortars, B-10 recoilless rifles, RPGs, ZU-23 anti-aircraft ammunition, as well as large quantities of PKM machine guns and AK-47 and FAL assault rifles.[143] The November 2006 UN report also noted that "new and more sophisticated weapons are also coming into Somalia, including man-portable surface-to-air missiles such as the Strela-2 and 2M, also known as the SA-7a and 7b 'Grail,' and the SA-6 'Gainful' low-to-medium altitude surface-to-air missile."[144]

While the ICU no doubt used some of this weaponry during fighting with the Ethiopian forces in December 2006, it is very likely that much of it was left in Mogadishu when the ICU fled. The ICU had confiscated many arms from Mogadishu militia when it took control in June 2006, but clan elders apparently demanded that the ICU return confiscated arms when the Ethiopians were approaching.[145] The insurgency would also have had access to independent arms traders in Mogadishu's Bakara market in the early months of 2006.[146]

By January 7, within 10 days of the arrival of Ethiopian and TFG forces in Mogadishu, armed groups began attacking them with small arms, mortars, and other weaponry. By late March the attacks expanded to include suicide bombings and, in later months, the use of remotely-controlled explosive devices.

The Ethiopian armed forces have used BM-21 multiple barrel rocket launchers firing Katyusha-type rockets, 120 mm mortars, T-55 tanks firing 100mm shells, and M-30 and D-30 artillery in the course of their attacks.[147] The Ethiopian military also used Mi-24 helicopter gunships in the first two days of the March offensive, which fired into neighborhoods of Mogadishu. Human Rights Watch's research has not been able to verify what types of weapons were used on the helicopter gunships, but these gunships have an internal 12.7 machine gun and also likely used 57 or 80 mm rockets. The Ethiopian army ceased using the helicopters after insurgents shot one down on March 30.[148]

Human Rights Watch was often able to determine the weapons used in a particular attack because civilians in Mogadishu became expert at identifying different weaponry by their specific characteristics. Dozens of eyewitnesses consistently named specific weapons that were used, and accurately described to Human Rights Watch the sound or sight of different types of weaponry even when they were unable to name the exact type of weapon. For instance, individuals repeatedly named BM-21 rockets or Katyushas, which they called "Bii-em" or described as "whistling" due to the sound they made when launched and the loud noise upon impact.[149]

Numerous eyewitnesses accurately told Human Rights Watch that mortars, by contrast, were silent in their flight. As one person noted, "Katyushas, you know the sound, it sounds like 'whooooo,' and then a thud. But with mortars you don't hear anything."[150]

Indiscriminate attacks by Ethiopian forces

When the insurgency launched rocket or mortar attacks, the Ethiopians responded with barrages of rockets, artillery, and mortar shelling of areas of Mogadishu perceived to be the areas of origin of the attack or strongholds of the insurgency. Eyewitnesses to the fighting in March repeatedly told Human Rights Watch that the Ethiopian barrages came from Ethiopian bases located in the former Ministry of Defense building, Villa Somalia, the Custodial Corps headquarters, Kabka (a former repairs factory for the Somali military), and, in April, from the Mohamoud Ahmed Ali Secondary School and the former headquarters of the Somali Police Transport (see Map 2). Many of these locations are two or more kilometers from the neighborhoods they were targeting, distances that would require a spotter in the air or on the ground for mortar shelling to be used with any degree of precision.

The Ethiopian rockets were inherently unable to target specific military objectives. Residents of Mogadishu described patterns of rocket barrages that match the use of BM-21 multiple barrel rocket launchers. The use of BM-21s by the Ethiopian forces was confirmed not only by eyewitness descriptions of the weapons by name but also by description of the sounds they made when fired.

There is strong evidence that the indiscriminate bombardment of populated neighborhoods by Ethiopian forces was intentional. Commanders who knowingly or recklessly order indiscriminate attacks are responsible for war crimes. In Towfiq, Hamar Jadid, and Bar Ubah neighborhoods, eyewitnesses reported that the Ethiopian BM-21 rockets and heavy artillery often landed in systematic patterns, equidistantly, and at regularly spaced time intervals. In Towfiq, for instance, Ethiopian rockets landed 10-20 meters apart, while in Hamar Jadid they were sometimes 40 meters apart.[151] One man with a military background told Human Rights Watch, "The Ethiopians would shell on a line-start with one area and move to the next, and the next day they started all over again, the same way."[152] Another man observed, "The shells were coming in a sustained format: each shell fell 40 meters from the other. In some areas, you would find 10 houses next to each other destroyed."[153]

According to military experts this type of shelling is typical of area shelling where troops move the coordinates from one target to the next, going down a grid pattern. Area bombardment is fundamentally inappropriate as a strategy to target a mobile insurgency in a densely populated civilian setting. It constitutes an indiscriminate attack, which is a serious violation of international humanitarian law. This type of attack on populated neighborhoods is indicative of criminal intent to blanket an entire area rather than hit specific military objects-evidence of a war crime.

Indiscriminate and disproportionate attacks by the insurgency

Although the insurgency generally targeted military objectives such as Ethiopian and TFG military units and convoys, there frequently were civilian casualties. Human Rights Watch conducted an analysis of some of the reported attacks by the insurgency between January and March 2007. The numbers presented here are rough estimates based on media and other reports, and are not a conclusive analysis of the impact of insurgent attacks on civilians, and Human Rights Watch was not able to investigate and confirm details of many of the attacks. However, these estimates provide a preliminary basis for assessing the impact of such attacks on civilians. Our analysis covered more than 80 attacks that appeared to target Ethiopian and TFG forces, police and police stations, and military objectives such as the airport and seaport where Ethiopian and TFG forces were located. In the period of January to March, approximately 50 civilians died and up to 100 were injured from the attacks; 20 attacks generated the majority of the deaths. In terms of the impact on civilians, one of the clear conclusions is that the insurgency's attacks, particularly its use of mortars, have at times been indiscriminate or caused disproportionate civilian casualties compared to the expected military gain.

Insurgency attacks on military targets such as military convoys or bases in crowded civilian areas were sometimes conducted without any apparent effort to minimize the effects of such attacks on civilians. While Ethiopian or TFG forces may themselves have failed to take all feasible steps to minimize the risks to the civilian population, such as by establishing bases in crowded civilian neighborhoods, this did not relieve insurgent forces of the obligation to minimize civilian harm when conducting attacks. (See also below, "Deployment in populated areas.")

Many mortar attacks launched at military targets appear to have been poorly targeted because spotters were not used. These mortar attacks failed to hit military objectives, frequently killing and injuring civilians instead. Photo and video evidence of mortar fire by the insurgency confirms that the weapons were typically fired without guidance. A few examples demonstrate these types of attacks:

• On February 7, 2007, suspected insurgents fired a mortar shell that struck a Qur'anic school in south Mogadishu. Medical officers recorded seven deaths.

• On February 14 insurgents fired at least five mortar rounds at or in the direction of Ethiopian forces based in Hodan (possibly DigferHospital), the seaport, and Bakara market. A shell apparently aimed at the seaport landed near a group of children who were swimming. One child died and six were wounded. In total, the five shells killed at least four civilians and wounded 17 people, all of whom are believed to be civilians.[154]

• On March 8 insurgents targeted an African Union convoy with a rocket propelled grenade but missed as it passed a busy junction, two days after Ugandan AU troops arrived in the city. According to press reports, 10 civilians died from the explosion and subsequent gunfight.[155]

• On March 18 the insurgency launched more than 10 simultaneous mortar attacks on the seaport and former intelligence headquarters. The mortar attack on the seaport hit a restaurant, killing one person and wounding at least three other civilians.[156]

As the fighting intensified in late-March, so did the bombardment of neighborhoods like X-Fiyore, just behind Villa Somalia. A resident of X-Fiyore told Human Rights Watch,

The first madfa' [Somali word for artillery that Somalis often use to describe a weapon making a loud noise] that hit the area came during the Stadium fighting. Four madfa' landed; it was the second day of the fighting [March 30] around 1 p.m. One man was injured. His name was Dalab, around 65 [years old]. He was taken to Medina hospital. [Others who] died during the stadium battle in Sheikh Sufi neighborhood were two children, age seven and eight years. Both of them were boys. [The children's aunt] who was visiting the family was injured. This happened on Monday, April 2, 2007. It happened when a mortar hit their house. The missiles that were landing in the area continued. On Thursday, April 5, 2007, three mortars landed in the neighborhood, wounding two sisters [Halimo and Amina Hussein, age around 34 and 35]. Amina's six-day-old baby girl was killed in the same incident. This happened around 2 p.m. On the same day, two other mortars landed on a house-one in the house and the other just beside it. The house belonged to a friend, Mohamoud Abshir Shiine. Eight people were injured in this incident. Just the day before we left, another mortar landed in front of the former national museum. A prominent elder in the area-Sheikh Ali, around 55 [years old], who lived in the museum, was killed. He just came back from prayers at the mosque, around 3 p.m., and was sitting outside when the mortar landed near him. The shell cut him to pieces. Another elder ran towards him in order to help but a second mortar landed and cut off both of his legs. They had both came back from Sheikh Abdilqadir Mosque. You could only see dust and shrapnel at the scene.[157]

Human Rights Watch cannot confirm which group was responsible for these attacks.However, the area is close to Somalia's Presidential Palace which has been a constant target for the insurgent groups.

One eyewitness who lived close to the Ambassador Hotel described to Human Rights Watch attacks that may have violated the prohibition against indiscriminate or disproportionate attacks:

I could not tell the type of weapons used but our area was a constant target for bombings. One of the explosions went off around 100 meters from the Ambassador Hotel. Two people were killed in this attack. It happened between 4 and 6 p.m., I can't remember the exact date. Another explosion followed another day at around 7 p.m., killing one man instantly; a second man died of his wounds. Both men were civilians. These explosions seemed to have been targeting a Corolla car transporting a government official.[158]

Deployment in Populated Areas

International humanitarian law requires that all warring parties must to the extent feasible avoid locating their forces within or near densely populated areas, and must remove civilians under their control from the vicinity of military objectives. They must never intentionally use civilians to shield themselves from attack or to carry out attacks.

The insurgency groups regularly used several populated neighborhoods to launch mortar and other attacks. Residents of several of these areas described to Human Rights Watch the nature of attacks and counter-attacks in the period leading up to the first round of fighting in late-March 2007.

A 33-year-old woman who lived in Laba-dhagax neighborhood, near the Stadium, told Human Rights Watch that insurgent groups had been using her neighborhood to launch attacks and that the Ethiopians responded with BM rockets:

The Muqaawama used to bring their madfa' in sacks and reassemble [them] on the scene. When the Muqaawama arrived, they used to give orders to people to close their doors and put hands over their ears. They used to come in the evening. They used to launch up to 20 rounds of madfa' at a time. Sometimes they used to fire madfa' just opposite my house; they have done this around six times. When this happened we used to vacate the house and take refuge in a concrete building nearby. Sometimes the Muqaawama fired up to 16 madfa' and the Ethiopians responded with six rounds of BM missiles.[159]

A 45-year-old woman living in the Arwo Itko area between Hamar Jadid and Bar Ubah also described insurgency fighters firing mortars from the area. She noted that on the night the Presidential Palace was first targeted on January 19, nine rounds were fired from the area. Ten rockets came in by return fire.[160]

A resident of the Bar Ubah neighborhood in Hawlwadag district explained the tactics used by the insurgency when firing mortar and artillery shells from within the residential areas:

They used to fire madfa' from the area and then run away. They have done this continuously throughout [the conflict]. We saw them hiding themselves. They had their eyes and mouth masked. They would come, fire a single madfa' and run away immediately. They would go somewhere else in the neighborhood and do the same.[161]

Ethiopian and TFG forces may also have violated the prohibition on deploying a military asset near a densely populated civilian area by placing one of their central bases in Villa Somalia. Action should have been taken to transfer civilians from the vicinity of the base.

Insurgency abuses in response to civilian protests

In some neighborhoods, local residents tried to stop the insurgency from using their areas as locations to launch mortar rounds or stage other attacks. A resident of Wardhigley district said, "They were just 20 people without cars, moving around. They would tell the people there that they come to fight so we could choose to leave. Some elders tried to speak to them to tell them to stop fighting in the area, but they didn't respect them, saying it was their duty to fight the Ethiopians."[162]

By late February, some neighborhoods set up vigilante squads to resist insurgent attempts to use the areas as launch sites for attacks. The underlying motive was to deter Ethiopian and TFG counter-attacks or reprisals on the neighborhoods. According to news reports, some of the areas that applied this strategy included Tawakal in Yaqshid district, Gubta, Hamar Jadid and Wardhigley districts, and NBC neighborhood in Hodan district.[163]

In a few cases investigated by Human Rights Watch, the insurgency apparently summarily executed individuals who resisted the use of their neighborhoods as launch sites or who were suspected of being informers. A photograph taken on April 24, 2007, appears to show two insurgent fighters in the process of shooting an unarmed man lying on the ground who was suspected of being an informer.[164]

The February 21 killing of Abdi Omar Googooye, the deputy commissioner of Wadajir District (see below, "Deliberate killings of public officials"), was allegedly due to his involvement in a campaign to set up neighborhood guards and stop the area from being used by the insurgency to launch attacks.[165] In Bar Ubah neighborhood of Hawlwadag district, a resident said the "Muqaawama" murdered four members of the neighborhood guards-two who were killed in Bar Ubah and two others killed in the Black Sea area. She could not remember the dates or other details of the killings, and Human Rights Watch could not independently confirm the information.[166] A woman living in the Arwo Itko area between Hamar Jadid and Bar Ubah told Human Rights Watch that when a local vigilante group in Hamar Jadid tried to confront the armed insurgency, the latter summarily executed six of them.[167] Human Rights Watch learned of these cases in two independent interviews, but was unable to obtain further details of either allegation.

Attacks on Medical Facilities

The Ethiopian military bombardment in March and April hit several hospitals during the course of the fighting in Mogadishu, causing some hospitals to suspend their provision of medical care at a time when this care was desperately needed by hundreds of people. The protection of hospitals and other medical facilities is a bedrock principle of international humanitarian law. The Second Additional Protocol of 1977 to the Geneva Conventions (Protocol II), on the protection of medical units and transports, which is reflective of customary international law, states,

1. Medical units and transports shall be respected and protected at all times and shall not be the object of attack.

2. The protection to which medical units and transports are entitled shall not cease unless they are used to commit hostile acts, outside their humanitarian function. Protection may, however, cease only after a warning has been given setting, whenever appropriate, a reasonable time-limit, and after such warning has remained unheeded.[168]

The SOS, Al-Arafat, and Al-Hayat hospitals were located in critical frontline areas caught up in the conflict. Human Rights Watch research found that Mogadishu's hospitals were bombarded repeatedly and without warning, with loss of civilian life and significant destruction. While it is not clear to what extent the insurgents fired from the near vicinity of the hospitals, the Ethiopian forces should have had no trouble spotting the often tall (by Mogadishu standards) and highly visible hospital buildings. This failure to spare them from bombardment indicates, at minimum, indiscriminate attacks and, at most, deliberate attacks on the hospitals. [169]

Shelling and occupation of Al-ArafatHospital

Ethiopian troops first searched Al-Arafat hospital on January 14, 2007, soon after they arrived in Mogadishu, so its status as a medical facility was known to them. According to eyewitnesses, Ethiopian forces entered the hospital that day at around 5:30 a.m. and conducted a thorough search. Ethiopian soldiers confiscated weapons that were being used by the hospital to protect equipment and patients.[170] While international humanitarian law prohibits the use of medical facilities for military purposes, medical personnel may be equipped with light individual weapons.[171] A person present said that Ethiopian personnel told hospital staff that day that the hospital was suspected of being a base for the "Courts" and "Ayr clan" insurgent groups.[172]

Soon thereafter, senior members of the hospital staff visited Ethiopian bases in El-Irfid and Maslah, seeking the return of the confiscated weapons. However, the Ethiopian officials at these bases denied that any confiscation operation had been organized from their base.[173]

Al-Arafat hospital is located along Industrial Road, northeast of the Stadium in Towfiq neighborhood. On March 29, when the first round of heavy fighting started around the stadium (see Chapter VII, "A Case Study in Laws of War Violations"), the hospital was hit at least four times, including by tank shells and BM-21 rockets. The tank shells hit the water tank, the store, and the office of the hospital director.[174] When the fighting started there were more than 30 patients at the hospital. A relative of one of the patients was injured by shrapnel. During the following days, as the fighting continued in the area, the patients were released or referred to other hospitals. The hospital staff took the precautionary step of removing some of the key medical equipment, such as the laboratory equipment and medicines, out of the hospital.[175]

During the second round of fighting in late April the hospital was hit again. A total of seven rockets struck the hospital: three rockets hit the outpatient department; another three rockets hit the generators store, putting all three generators beyond use;[176] and a seventh rocket struck the hospital kitchen. Staff quarters in the hospital were also damaged by these rockets.[177]

One of the staff who witnessed the events told Human Rights Watch,

These were heavy shells. The shells damaged the outpatient department, making a big hole. The three shells that destroyed the electric generators were the first to hit the hospital around April 20-21. The BMs and rockets landed on top of the buildings. The three shells which hit the generators landed simultaneously. They came from the direction of the Custodial Corps [under control of Ethiopian forces]. The shells which landed in the office of the director and the water tank were tank shells. I know this because it was a direct hit. Our staff saw the tank at the Charcoal Market.[178]

Available evidence indicates the attacks on Al-Arafat may have been deliberate. Unlike rockets or artillery, tank guns are primarily direct-fire weapons-the tank crew is expected to aim at the target at which it is firing. One of the tank shells struck squarely on the front face of the building, just below a large sign with the name of the hospital. There is little other shell or rocket damage evident on the front of the building.

The actions by Ethiopian officials at the hospital in January raise concerns that the military might have believed the hospital was being used to treat wounded insurgents. This was denied by an eyewitness, who told Human Rights Watch, "[W]e never received any wounded militias."[179] However, even if wounded insurgents had been there, under the laws of war wounded combatants no longer taking part in the hostilities may not be attacked. Others at the hospital-patients, medical personnel, and visitors-are also protected from attack. To deliberately target a hospital is a war crime.[180]

On April 26, at the end of the fighting, the Ethiopians came into the hospital and occupied the facility for three days. They ordered hospital security guards to leave the hospital after disarming the only security guard, who was armed with an AK-47 to protect the facility.

When staff from Al-Arafat returned to the facility after the Ethiopians moved out on April 29, the hospital had been completely ransacked. One staffer described the scene to Human Rights Watch: "They have broken all doors, the safe, and put everything out of its place. There were files, letters, and books littered inside the rooms. They have taken some of the text and reference books as well as some medical filesThe Ethiopian military left graffiti on the walls. One read, 'al Qaeda Hospital.'"[181] The reference of course suggested that the hospital was being used by terrorists.

Shelling and occupation of Al-HayatHospital

Al-Hayat hospital is located on the main road from Villa Somalia to the Stadium, close to Ali Kamin junction. Ethiopian bombardments frequently hit this site, particularly in the late March fighting.

On March 29, as the Ethiopian military fought their way to the Stadium from Villa Somalia (see Chapter VII, "A Case Study in Laws of War Violations"), an Ethiopian unit entered Al-Hayat hospital, inspected the facility, and left. There were more than 70 patients in the hospital at the time. The Ethiopian commander did not ask or suggest that staff at the hospital evacuate the patients.[182]

The following day, March 30, a rocket apparently launched from a BM-21 landed inside the hospital compound, wounding three people including a doctor and damaging cars and rooms in the hospital. Most of the patients were evacuated or left the facility that day, as did many of the staff. A few staff remained to try to protect the facility.[183]

Two days later, on April 1, Ethiopian troops returned to the hospital and detained the remaining staff. One of the hospital staff who was held at gunpoint and questioned described the events to Human Rights Watch:

The soldiers were different from those who had come the other day. The Ethiopians tried to get into the hospital at around 6 a.m. First they tried to break the gate with a bullet. But the door wouldn't open. Then they kept knocking until I opened for them. A soldier asked me if there were "al Qaeda" [insurgents] in the hospital. I replied "no." I showed him around the hospital, the medical equipment, beds, etc. He asked about the patients, I told him they fled because of the fighting.[184]

According to eyewitness accounts, approximately 150 Ethiopian soldiers entered the hospital and took up defense positions, putting their guns out of the windows. Al-Hayat staff were detained in the building for the next seven days. They saw Ethiopian troops bringing sandbags and rockets into the hospital to consolidate their defense positions in the three-story building, which they used as a base in the following days.

Staff were questioned-"Where is 'al Qaeda'? Are you with the government or with al Qaeda?"-and were denied permission to leave when they requested it. On April 9, a week after the occupation of the hospital began, the staff were permitted to leave when the ceasefire commission visited Al-Hayat. One of the released staff told Human Rights Watch, "Until the day we left, the hospital and its materials were safe. The money for the hospital staff was secure in the safe; the medical equipment was in order. We were expecting they would leave the hospital intact. We contacted the interior minister and health minister in order to help us get the Ethiopians out."[185]

A week later, Al-Hayat staff returned to the hospital with a team of police officers and were shocked by the destruction they found. Heavy looting had taken place. "The computers, the laptops, the money, and the shelves-all destroyed," said an eyewitness. The Ethiopian army vacated Al-Hayat hospital on May 5, more than a month after first occupying it. According to a statement seen by Human Rights Watch, the hospital staff estimated that the Ethiopian military caused more than US$800,000 worth of damage.[186]

International humanitarian law not only prohibits attacks on hospitals, but also stipulates that they not be harmed in any way or that their functioning be impeded, even if they do not have any patients at the time.[187]

Shelling of SOSHospital

SOSHospital, a pediatric and obstetric facility located in Huriwa district, was heavily bombarded by Ethiopian forces in the last days of the conflict in late April. On April 23, 2007, at least five rockets landed in the grounds of the hospital and one rocket hit a ward housing 20 to 30 wounded adults.[188]

Prior to the bombardment on April 23, the hospital building had been hit by stray bullets but they had caused no casualties or damage. According to eyewitnesses, on April 19 several doctors and elders affiliated with the insurgent groups approached the hospital administration and said they wanted to use the SOS facility to treat their wounded. Apparently the insurgency's existing medical facility near the Pasta Factory was coming under intense shelling.[189]

The doctors and elders representing the insurgents and the hospital management agreed to meet the following day, April 20, but the meeting never took place. On April 21 the doctors and elders returned with more than 20 wounded people, the majority of them young men who were apparently fighters, but also some civilians. They came with their own medications to treat the wounded.

Two days later, on the morning of April 23, the hospital was hit four or five times, apparently by BM rockets, with a fixed interval between each rocket strike.[190] One round hit the children's department in the hospital, destroying one room and damaging another. Another round struck the wall of the hospital. Two other rounds landed in a sports field just opposite the hospital. There were no casualties.[191]

The hospital continued to serve wounded civilians and insurgents for two more days, as fighting grew closer. On the night of April 25 all the wounded people in the hospital were moved out of the facility. The following morning at 8 a.m. the Ethiopian military entered the hospital, asked the staff the whereabouts of the wounded people, searched the wards and stores, and left the hospital within half an hour.[192]

Over the next 10 days, Ethiopian military roadblocks and security checks in the area near the hospital restricted medical activity. Ethiopian troops returned and searched the facility again in early May, and then again in early July following clashes in the area, but otherwise left the facility untouched.[193]

Intentional Shootings and Summary Executions of Civilians

Human Rights Watch learned of various incidents in which Ethiopian troops are believed to have intentionally fired upon and killed or wounded plainly identifiable civilians.

On March 29, a 45-year-old charcoal porter and another male civilian were shot and wounded, and a woman civilian killed, by an Ethiopian soldier in Towfiq. The charcoal porter had been collecting charcoal in the Charcoal Market in Towfiq when fighting erupted. He told us,

I didn't get a chance to escape, [there was] no place to hide so I stayed near a lorry [truck]. There was also another man and a woman hiding by the lorry. There was an Ethiopian soldier close by, in a defensive position [he motions crouching down with a rifle]. Some shells landed near the soldier and he got angry and fired five bullets at us. The woman died and the two men were hit but survived. The soldier was maybe five meters away, he had been there more than five minutes before he fired on us. I know he was an Ethiopian because of his military uniform and they came in two convoys. He was holding a heavy machine gun. The woman's name was Noura; she was maybe 50, an older woman. She died on the spot.[194]

Other civilians were shot while trying to flee the area, or when they returned to see if their homes had survived the bombardment and fighting.

On April 26, a 35-year-old businessman came back to his home near the Pasta Factory having fled to Afgoi with his family during the fighting. He came back with two other neighbors to check on their property. He recalled what happened on their return:

We arrived in Huriwa at around 9:30 a.m. As we were walking towards our house near the Pasta Factory, the Ethiopian soldiers called us. They told us to "come." They spoke to us in SomaliThey began to call us repeatedly. We decided to run away from them. They fired at us as we tried to escape from them. The other two survived but I was hit in the upper arm by a small bullet. It is broken around the elbow. All three of us continued running despite the wound and the bleeding. The Ethiopians chased us momentarily but gave up.[226]

The area between JaalleSiyadCollege and the Pasta Factory runs parallel to Industrial Road, is at least 10 kilometers long, and includes some of the most populated districts in Mogadishu. While precise population figures are impossible to obtain, a conservative estimate would be in the range of tens of thousands of residents. Any expectation that a civilian population of this size could relocate with a few hours' notice was totally unrealistic.

President Abdullahi Yusuf reiterated these positions in an interview with Voice of America on March 21. The president defended his government and the Ethiopian military's earlier bombardment of populated neighborhoods, asserting that government forces had the right to respond with force wherever they received attacks:[227]

Q: The government is using artillery to shell civilian areas according to reports, therefore why are you using these artilleries? A: Why shouldn't we use it? They are within the civilian areas. The public should make them [the insurgents] leave the civilian areas. When those guys leave the civilian areas no harm will come to the civilians. We want the civilians to remove them [insurgents] telling them to go away from our midst. It is you [insurgents] that are causing us all these troubles. It is them [insurgents] who are the cause of all the troubles and not the government because any place from which a bullet is fired [at us] we will bombard it regardless of whoever is there. Q: Even if civilians are there you are going to bombard it? A: Yes we will bombard it! Because the civilians should not be used as human shields. The civilians should get out of there and we have warned the civilians. We said there is fighting going on in those neighborhoods get out of there while the fighting is going on because one of the sides will be made to give up. The civilians have that warning.[228]

Aside from these statements from officials on March 21, the government made no attempts to systematically inform civilians to leave specific locations, for instance by issuing repeated radio announcements (given the broad radio access in the city). No leaflets, speakers, TV, radio, newspaper, or online advertisements were used by the TFG to communicate the warnings.

In addition, there were no specific procedures or guidance for the civilians to follow when ordered to vacate their areas. There were also no provisions made to facilitate departure or relocation, particularly for the tens of thousands of destitute residents, including many internally displaced people who had been living in displaced persons camps or in abandoned buildings in Mogadishu for years.

Witnesses told Human Rights Watch that the TFG's warnings were totally insufficient:

One or other of the officials would make statements to the media, but there was no official campaign to warn people to leave and some of the statements came after the fact; the fighting [had] already started. It was a surprise to me to hear that such an amount of people living in a place had to leave. There are FM radio stations in Mogadishu.[229]

(For TFG failures adequately to protect civilians in flight from Mogadishu see Chapter VIII, "Displacement by the Fighting.")

Looting of civilian property

TFG militia forces are widely alleged to have been responsible for most of the looting and harassment of civilians that have taken place in Mogadishu over the past six months, for instance at checkpoints and during house searches. TFG forces were also described by several witnesses as moving behind or with the Ethiopian forces during their March and April offensives, breaking into shops and extensively looting the contents.[230]

Items usually confiscated by TFG militias included cell phones and cash. Several sources told Human Rights Watch that in April and May two communications centers in Huriwa were repeatedly raided by the TFG militias who ordered the staff out and then stole cell phones and cash.[231] The same items were targeted in stop-and-search operations, as a Huriwa resident described: "The government militias were stopping people. They would say to the person, 'Stop to be searched, you are a suspect.' Then they would take mobile [phones] and any money they found in pockets during the search."[232]

After the second round of fighting in late April, TFG militias looted khat (a mild stimulant widely used in Somalia) from the women vendors in the Huriwa area and established checkpoints at X-Control and Towfiq to extort money from passing vehicles.[233]

Some residents of Mogadishu described a difference between the Ethiopian and TFG troops in the city in this respect, and attributed some of it to discipline. One resident said,

The Ethiopians had a checkpoint near my house and there were no problems for one month. When the TFG replaced the Ethiopians, there were big problems with looting; the TFG soldiers would spread out looking for something to loot. Then the Ethiopians returned and it was quiet again.[234]

However, in other instances, Ethiopian troops were clearly responsible for looting, for instance of materials and equipment in the hospitals they occupied (see above, "Attacks on Medical Facilities").

A resident of Medina neighborhood described a visit by TFG troops to his home in February, during one of the house-to-house searches: "They said they were looking for weapons, but they took cell phones, clothes. We were lucky-all of them had the safety off on their guns and I was afraid my children would be killed."[235]

TFG looting was also systematic in some cases. For instance on April 26, during the last day of the second round of fighting, the Ethiopian military reached an area near SOSHospital after pushing the insurgents back. The TFG forces continued to move further into the Livestock Market neighborhood. According to eyewitnesses, they were looting the shops, the business centers, and garages, but they were not entering the houses.

Checkpoints were set up on the roads to Afgoi and on Bal'ad road where TFG forces extorted money from commuting vehicles. Some witnesses also described TFG militias harassing fleeing civilians on minibuses on the road between Mogadishu and Afgoi (see Chapter VIII, "Displacement by the Fighting"). In some cases, passengers were ordered out of the vehicles, searched, and had their personal belongings confiscated.[236] TFG militias manning checkpoints within the city have also been accused of extorting money from civilian buses.[237]

Most recently, TFG militia were responsible for widespread looting in Bakara market during several weapons search operations in July. Two businessmen who were victims of the looting provided detailed accounts of the incidents to Human Rights Watch.

A fruit seller told Human Rights Watch that a group of armed TFG forces were in the area searching the stores and four policemen came into his store on July 5."They were wearing police uniforms, [a] white uniform and blue hats [and] were carrying their AK-47 gunsThey told us they were searching for weapons," he said."They told me to open the qasnad [the safe]. They saw the money inside which I counted and labeled separately: $3000 and $45. They shouted at me and told me to face the wall. One of them was searching the store, the other three were guarding us. They took the money and left the store."[238]

The fruit seller and another businessman told Human Rights Watch that after the looting they complained to police officers at Hawlwadag police station, who promised to investigate, but that to date nothing had been done.[239] On July 8 Mogadishu's mayor, Mohammed Dheere, apologized to the business community in Bakara Market and said, "We are going to investigate, and whoever is proved to be involved will be dealt with according to the law."[240]

Obstruction of humanitarian assistance by TFG officials

As tens of thousands of civilians fled the March and April offensives, TFG officials and security forces obstructed delivery of humanitarian assistance to the displaced population. Restrictions included limiting humanitarian agency access to and use of airstrips outside Mogadishu (which were essential given the ongoing attacks on Mogadishu International Airport); blocking aid convoys; the imposition of new regulations on aid workers and relief material, including taxes; and threats to aid workers.

A report by the UN Office of the Coordination of Humanitarian Affairs on April 20 described the restrictions:

Many of the displaced have not had adequate food, water or shelter for weeks. Meanwhile, aid deliveries to south/central Somalia have been hampered by the continued insecurity, including the harassment and detention of aid workers, as well as new bureaucratic regulations imposed by the TFG and lack of access to pre-positioned stocks in MogadishuThousands of people displaced in and around the Mogadishu areas are at high risk of infection. The United Nations and its partners have been working to deliver assistance to those in need, where possible.[241]

In an April 9, 2007 letter written by the Somali interior minister, Mohamed Mohamoud Guled, and addressed to Peter Goossens, the World Food Programme (WFP) representative for Somalia, the minister stated,

It is the TFG decision that there will be no food distribution that can take place any where in Somalia without being inspected and approved by the government. Hence UN agencies and any other organisation that is planning to bring any relief to Somalia should submit the documents for the goods before shipment for checkup.

He adds,

Any organisation that does un-authorized food and non-food items distribution will solely take the responsibility of any bad consequences from the consumption of that distribution. It is the government decision that any future items [whether be food or drug] should go under the government inspection.[242]

An April 12 letter addressed to Prime Minister Gedi from the acting UN humanitarian coordinator raised concerns over the TFG's new directives and noted the "apparently systematic harassment of humanitarian workers by military forces."[243] It also described an incident in which a WFP convoy loaded with food for a distribution to more than 30,000 displaced people in Afgoi was turned back at a TFG checkpoint in early April on the grounds that "clearance had not been obtained from the TFG."[244] An April 23 letter from European Commissioner Louis Michel also condemned the "unreasonable administrative obstacles imposed by the Transitional Federal Government" and urged the TFG to allow "aid agencies to use all ports and airstrip facilities whose access is currently severely limited if not hindered."[245]

International humanitarian law requires that parties to a conflict allow and facilitate impartial humanitarian relief for civilians in need. The party concerned may require consent and ensure the quality of relief goods, but it must refrain from deliberately impeding the delivery of relief supplies to populations in need.[246] The TFG requirements were imposed suddenly on aid agencies in the midst of the largest displacement of civilians in many years, at a time when the TFG had neither the resources nor the administrative structures in place to appropriately inspect relief goods at the scale that was needed.

By late April the Somali government backed down on its restrictive regulations after diplomatic criticism of its stance on humanitarian assistance to the displaced population.[247]

Executions without due process

In January, when the TFG entered Mogadishu, it made efforts to reestablish the long defunct judicial system. Prime Minister Gedi presided over the swearing in of a number of judges to positions in the district courts (Mogadishu has 16, one for each district of the city). Currently, district and regional courts operate at a minimal level in Banadir (Mogadishu) and Baidoa, but many staff are not being paid.

Under Somali law, the legal period for detention without charge is 24 hours.Realistically, however, the judicial process in Mogadishu faces tremendous challenges given the fact that it has not been functioning since the collapse of the Siad Barre government and Mogadishu remains extremely insecure.

While it would not be realistic to expect the current TFG to realize all due process rights of detainees in the current environment, at an absolute minimum the Somali government should ensure that detainees are not summarily executed, tortured, or otherwise mistreated, in line with its obligations under international humanitarian law.Detainees should have access to family members and impartial humanitarian agencies. Ethiopian forces should also make every effort to support efforts by the TFG to reestablish the rule of law and a functioning judiciary, and should cease mistreating detainees in those cases where Ethiopian forces are participating in arrests or detentions.

On July 5, the TFG appears to have executed two men without minimal due process. Thirty-year-old Abdullahi Dahir Muse and 25-year-old Mohammed Abdi Wardhere were arrested on June 25, apparently on suspicion of killing two government soldiers. According to Human Rights Watch research, they were detained in Baarista Hisbiga (an underground detention center near Villa Somalia) and sentenced by a military tribunal (possibly within the detention center) on July 3.[248] On July 5 Abdullahi Dahir Muse and Mohammed Abdi Wardhere were shot dead by a firing squad. Human Rights Watch learned from credible sources that the two men had no access to legal counsel prior to their execution.[249] The speed of the judicial procedure and the lack of due process guarantees raise serious concerns.Human Rights Watch opposes the death penalty in all circumstances because of its inherent cruelty.

Mistreatment of detainees

Human Rights Watch is also concerned about detention practices by the TFG and Ethiopian forces. Since March TFG security forces, with Ethiopian military backing, have increasingly conducted mass arrests of people suspected of links to the insurgency and have detained many of them without any legal process.The majority of arrests appear to involve members of the Hawiye clan, from which the insurgency derives many of its fighters. Many individuals have been beaten in custody and held at different locations in Mogadishu without access to family members. Those who get released typically do so after paying bribes to their captors. Detainees paid at least US$50 for their release, but the majority paid more than US$100.[250]

Mass arrests became increasingly prevalent in June and July 2007 with TFG militias and Ethiopian troops cordoning off large neighborhoods of the city, and then arresting and detaining hundreds of individuals, including children in some cases.[251]

According to Human Rights Watch's research, the detainees are being held in several locations:Baarista Hisbiga;[252] Saldhigga Bari police station; Hawlwadag police station; the CID prison at K-4 junction; and a detention center inside Villa Somalia.[253] Some of the prisoners initially held in these locations were later transferred to the main central prison known as Galshire, near the sea port.[254]

A significant number of the detainees, including individuals who were arrested as long ago as March, were held without charge. The emergency law passed on January 13, 2007 (see Chapter IV, "Mogadishu Under Siege"), does not address periods that detainees can be held without charge, although apparently police told some detainees that they could hold people indefinitely without charge during the duration of the emergency law.[255] Although the emergency law was of only three months duration (and therefore due to end in April), it was July by the time the speaker of the Parliament announced its expiry.[256]

Human Rights Watch is concerned that detainees are being subjected to beatings, mistreatment, and possibly torture in detention. Released individuals have described serious abuses by TFG and Ethiopian security forces against detainees.

A man arrested by the Ethiopian military on March 30 told Human Rights Watch his experience.[257] He was arrested, along with seven other men, while passing Florence junction at 4:30 p.m. Three Ethiopian soldiers hit him with the butt of a gun when they were ordering him to sit down. Two hours later they transferred him to TFG militias who detained him in an underground bunker used as a detention center in Villa Somalia.[258] There were government troops as well as Ethiopian soldiers guarding the detainees. More than 30 prisoners were being held in the underground bunker.

TFG officials interviewed the detainees several times, he said, asking their nationality, other identifying characteristics, whether they were members of Al-Shabaab, and examining their hands and shoulders to see if there were signs of recent weapons handling. This detainee was released after 40 days in detention, without charge, but only after his family paid $50 to commanders in charge of the detention facility.[259]

Although this particular individual was not assaulted or mistreated in detention, he said he saw many other people who were. While detained in Villa Somalia he saw a wounded detainee of about age 20 who was regularly taken out for interrogation. He saw Somali government militias hitting him with a gun butt and kicking him in the legs.[260]

Another man who was arrested in a June 7 operation that detained more than 100 people was transferred to Baarista Hisbiga.[261] He saw at least five other detainees there who were badly beaten, with blood covering their faces, and some had broken noses, split lips, and other injuries to the head. He saw boys as young as 16 and 17 years old among the detainees.[262]

A released detainee described Baarista Hisbiga as the "worst place to be detained."[263] He added, "Some guards let a few detainees go outside to have some fresh air. Those who have influential people campaigning for their release often get this opportunity. The majority of the detainees do not get any chance to come out of these underground bunkers."[264]

Some detainees are wounded individuals who were arrested while in hospital. For instance, on June 2, TFG troops arrested a patient from a Mogadishu hospital. One of the hospital staff told Human Rights Watch that the patient had been brought to the hospital on May 10 with serious shrapnel injuries to both legs, and one leg had been amputated.[265]

Human Rights Watch learned that this prisoner was taken to Saldhigga Bari station where he was detained for 12 days before being transferred to Baarista Hisbiga without any notification of his family.[266] In Baarista Hisbiga, his leg became infected. "I did not have any treatment for eight days. It was desperately painful. I tried to crawl upstairs to ask for treatment. The guard at the stairs said I would be shot if I did not turn back. I crawled back," he said. "Other people who were released told my relatives that I was detained [in Baarista Hisbiga]. Then I had the first contact from my family. I received a visit from a pharmacist who treated me and gave me antibiotics."[267]

This man and many others were released on June 26 after a presidential amnesty. He said he and others signed a letter prior to release:

The letter said: "The President of Somalia pardons you from the crimes you have committed, and for being a collaborator and supporter of the Islamic Courts." I hesitated about signing the letter because I don't believe I have committed any crime. But other detainees who were signing it suggested I had no chance of getting out if I did not sign the letter.[268]

VII. A Case Study in Laws of War Violations: The MarchApril Offensives

From March 29 through April 1, 2007, Ethiopian forces launched their first major offensive in the city. The aim of the offensive was apparently to capture Mogadishu's Stadium and several surrounding neighborhoods considered insurgency strongholds, and to control the main strategic roads leading from the former Ministry of Defense and from Villa Somalia to the Stadium (see Map 2).

Following negotiations with Hawiye clan elders, a brief ceasefire was declared on April 2. However, within days the Ethiopian military and the TFG launched a second major offensive, this time mainly in north Mogadishu, around Fagah junction, the Pasta Factory, and the Livestock Market.

From March 29 through April 1, and then again from April 18 through 26, Ethiopian forces used intense barrages of rockets, artillery, and mortar shells on areas of Mogadishu perceived to be insurgency strongholds, then used tanks and infantry to capture key strategic locations. Although TFG forces supported the military campaign in a number of important ways, it was Ethiopian troops who led the operation.

The devastating loss of civilian life and property in the neighborhoods fought over by the Ethiopian forces and the insurgency in March and April reflected an unwillingness by both sides to abide by the laws of war to minimize harm to the civilian population.

The first Ethiopian offensive: the battle for Mogadishu Stadium, March 29April 1

In the early hours of Thursday, March 29, the Ethiopian military launched twin attacks, almost simultaneously, in an attempt to take the Stadium, which was in insurgent controlled territory (a building near the Stadium used to be one of the headquarters of the ICU). The military offensive started between 4:30 and 5:30 a.m. The Ethiopian forces were based in a number of different buildings or compounds around Mogadishu, including the former Ministry of Defense, Villa Somalia, the Custodial Corps headquarters, DigferHospital, and other sites.

Many eyewitnesses described March 29 as the start of "the big fight." For the next four days, constant mortar shelling and rocket barrages were reported in the neighborhoods of Bar Ubah, Al-Baraka, Shirkole, Towfiq, Hamar Bile, Suq Ba'ad, and Hamar Jadid. Villa Somalia and the Ministry of Defense were the launching sites for most of the Ethiopian bombardment.[269]

The first ground attack was launched from the former Ministry of Defense, located just off Industrial Road. The Ethiopian military sent tanks and troops north along Industrial Road and reached the Charcoal Market just north of the Stadium with little resistance. A second attack was almost immediately launched from Villa Somalia along Wardhigley Road towards the Stadium.

Several eyewitnesses described what happened next. One man told Human Rights Watch, "The Ethiopians moved into Charcoal Market and then were ambushed. There was heavy fighting. I saw two tanks, two Urals [a large military truck for transporting personnel and logistics], one transporting soldiers and the other one carrying logistics. The Ethiopians were attacked and they had to move into the Stadium."[270]

Another eyewitness said, "The fighting started early in the morning. The TFG and Ethiopians were trying to capture the areas and control the main streets. They came with tanks and armored cars. They met resistance from local militias and big fighting started."[271]

The fighting soon spread to new areas around the Stadium, continuing for four days and nights as the Ethiopian forces tried to capture and control the Stadium and nearby strategic junctions: Ali Kamin, Ifka Halane, and Florence junctions, as well as Hamar Bile and Towfiq neighborhoods.[272] A 37-year-old woman who lived near Ali Kamin junction said, "In Ali Kamin, weapons were being fired from the area towards the Ethiopians in Hamar Bile. Those who were involved in this fighting lived in the area. I was not counting the number of rockets that came in as a reply but the area was receiving more shells than fired."[273]

Some of the areas most devastated by the bombardments were among the most densely populated areas in the capital. A journalist who toured the affected areas as the first bout of fighting declined on April 2 described what he saw:

From the Tawfiq neighborhood to the pasta factory, within a large perimeter around the stadium, the Ethiopianshelling with heavy artillery and Katyusha rockets was practically uninterrupted for several days. In these neighborhoods, all the buildings were hit, including ArafatHospital, whose facade and outbuildings havehuge gaping holesand where patients and doctors were wounded by shrapnel. In this part of Mogadishu, tens of thousands of people are currently fleeing in long human columns.[274]

A retired soldier who lived opposite the Stadium told Human Rights Watch,

The fighting continued for four daysIf the [Ethiopians and TFG] had sent in more infantry to fight the insurgents, they would have overpowered them. But they didn't do this-they stayed in their positions and shelled, and this is what caused the destruction. The shelling was heaviest at night time, because the fighters also fired mostly at night...I didn't count the shells that fell, but in my area the shelling was heaviest between 2 and 3 a.m. At this time, there was a minimum of 10-30 rounds per hour, maybe up to 50 at some times.[275]

Other residents corroborated that the heaviest bombardment was often at night, when the insurgency also launched mortar shells. A displaced woman who lived in the Ministry of Defense compound said, "The Ethiopians dug trenches in and around the compound. They were firing madfa' and were receiving madfa' too. Launching shells from the Ministry of Defense continued day and night-midnight, morning, and during the daytime. Midnight was always the heaviest."[276]

The first round of fighting, which started in the early hours of March 29, eased for several days when the temporary ceasefire agreement between Ethiopian military commanders and Hawiye elders came into effect on April 2. The purpose of the ceasefire was to collect bodies from the streets and free those trapped in the battle zones, but both sides used the interim period to rearm and reorganize.

Most residents of Mogadishu and observers anticipated that the conflict was far from over.[277] Tens of thousands of civilians used the lull to move to other areas or flee the city.

The second Ethiopian offensive: the battle for the Pasta Factory, April 1826

Although the ceasefire was in effect as of April 2, exchanges of fire, mortar shelling, and armed clashes continued in certain parts of the city, particularly in frontline areas and Fagah neighborhood, where the insurgents continued to fight TFG forces.[278] The insurgency dug trenches on many of the smaller streets in the Hamar Jadid, AfricanVillage, Ramadan Hotel, and Ali Kamin areas and in neighborhoods around the Stadium to block Ethiopian tank and vehicle access.[279]

On April 18 the insurgents carried out their second suicide attack in Mogadishu-a truck bomb at an Ethiopian base in the former Custodial Corps headquarters.[280] The city was on course for another wave of bloodshed and destruction.

By April 20 intensive Ethiopian bombardment of Mogadishu started anew. Eyewitnesses described the Ethiopian mortar, rocket, and artillery attacks as even heavier than in the first round of fighting in March. In the first period of fighting for control of the Stadium the Ethiopian military had been mainly launching rockets from Villa Somalia, the former Ministry of Defense, and the Custodial Corps headquarters, but after capturing the Stadium the Ethiopian military occupied several buildings in and around the Stadium and deployed artillery and BM-21 multiple-rocket-launchers in two new locations in the city: the former Mohamoud Ahmed Ali High School and the former headquarters of Somali Police Transportation.

For at least seven days the Ethiopian forces sent almost non-stop rocket fire from their bases into the Towfiq, Hamar Jadid, Bar Ubah, Hararyale, Suq Ba'ad, Jamhuriya, and Huriwa neighborhoods. A 44-year-old man living near the Livestock Market, in Huriwa district, described the intensity of the incoming rocket barrages in this period:

On April 18, around 11 p.m., heavy shelling started, targeting the Livestock Market. It was on Wednesday. I was at home when the shelling started. I heard BM rockets landing. People were saying it was BM because of its whistling sound. The [shells] were landing at X-Control-Bal'ad, Huriwa, and InsuranceBuildings. It is very difficult to tell the number. At a minimum, I believe 30-40 rounds were landing in these areas every hour. I heard the [rockets] were coming from various locations such as Villa Somalia, Shirkole, the Ministry of Defense, the Custodial Corps, and MohamoudAhmedAliSchool.[281]

In some other areas such as Towfiq, witnesses estimated that there was a minimum of 10-30 rockets landing per hour.[282] Rockets were fired day and night but mostly at night.[283]

The relentless shelling and rocket barrages continued alongside sporadic armed clashes on the ground in Fagah and Jamhuriya areas. In the last three days of the fighting, between April 23 and 26, Ethiopian military ground operations escalated as both sides battled for control of the Pasta Factory. Insurgents launched their third suicide truck bomb on an Ethiopian military base in Afgoi on April 24.[284] The shelling and rocket barrages, and the battle at the frontlines, intensified. Some witnesses described the level of rocket barrages as "twice more than previous days."[285]

Capturing the Pasta Factory was strategically important for the Ethiopian and TFG forces because it is located on a strategic junction linking two main roads: Industrial Road and Bal'ad Road. It was also close to the insurgent stronghold in Huriwa district. The TFG militias joined the ground attack in the last few days of the fighting, deploying from Fagah area alongside the Ethiopian army. While the shelling and rocket barrages continued, sites like the Ramadan Hotel changed hands several times but neither side gained significant territory.[286] On April 25 reports began to emerge that the Ethiopian and TFG were cornering many of the insurgents. The following day the TFG announced victory.[287] Hundreds of civilians were dead, several thousand were wounded, and at least one-third and possibly more of the population of Mogadishu had fled.[288]

The civilian victims of the March-April indiscriminate rocket barrages and shelling

The deployment of insurgent forces in densely populated neighborhoods around the Stadium, the Pasta Factory, and the Livestock Market, and Ethiopian military offensives that relied on intense rocket, mortar, and artillery bombardments resulted in the unnecessary deaths of hundreds of civilians and injuries to thousands more. The Ethiopian forces violated international humanitarian law by failing to take all feasible precautions to minimize harm to civilians, to verify that targets were military objectives, to use means and methods of warfare that would avoid incidental loss of civilian life, and to cancel attacks when it became clear they were causing disproportionate civilian casualties compared to the expected military gain. These indiscriminate attacks, if committed intentionally or recklessly, were war crimes.

The Towfiq, Hamar Jadid, Bar Ubah, and Suq Ba'ad neighborhoods and areas around Ramadan Hotel, Jamhuriya neighborhood, and Ali Kamin junction were particularly severely hit, partly because these areas were insurgent strongholds and were frequently used by the insurgency to launch attacks. But in some instances, residents told Human Rights Watch that their neighborhoods were hit when there was no insurgent presence whatsoever. Further investigations are required to determine whether Ethiopian commanders intentionally directed rockets or artillery at populated areas where it was known that the insurgency was not present-and thus deliberately targeted civilians.

Human Rights Watch received scores of eyewitness accounts of Ethiopian army shelling and rocket barrages that resulted in numerous civilian casualties. Entire families were killed when Ethiopian rockets, mortars, or artillery hit their homes. A woman who lived near Ali Kamin junction said the rocket attacks on her area started on March 29 at around 2 a.m. and continued until 7 a.m., killing many civilians. She knew some of the victims in one home that was believed to have been hit by a BM-21 rocket:

When the fighting reached Mogadishu Stadium, shells were landing almost everywhere. In the neighborhood, lots of people were killed. In a nearby house three children and their mother died. They were Halimo Hassan [47 or 48 years old], Lul Osman Hersi [14], Falis Osman Hersi [13], and Yasin Osman Hersi [12]. This happened in the early afternoon on the first day of the fighting. Their father, Osman Hersi, was injured too. The family lived in a villa and used to run a telephone call centerAnother house was hit by shrapnel from a rocket which landed nearby. A religious man, Sheikh Hassan Moallim, died in this incident. He left seven children and their mother who fled earlier.[289]

Another woman living near Ali Kamin had a similar description of the events on March 29:

I was living in Ali Kamin with my seven children and my husband. I heard the Ethiopians launched the offensive. Heavy shelling was used in the fighting. Both sides were firing madfa' but the Ethiopians fired more. In the morning lots of dead and wounded were reported. One of the shells landed on a house three doors away. The house collapsed. I do not know how many people were killed but the name of the lady who owned the house is Bisharo. She had six children. We fled three days later to the Livestock Market.[290]

A 50-year-old man living in Gubta neighborhood told Human Rights Watch, "There were no confrontations in Gubta; it was only destroyed by shelling. There was no [insurgent] firing from Gubta, but they were firing from the edge of Gubta, near the cigarette and matches factory, towards Villa Somalia."[291]

A woman from Gubta told Human Rights Watch that her neighbor, Hawa Mohammed Osman, and her four children under 10 years of age were all killed when a rocket hit their house on March 31.[292] She said, "Whenever there was fighting between the Stadium and the Ministry of Defense they shelled our area. Most of the shells came from the Ministry of Defense."[293]

As described above, the insurgents often used mobile tactics that unlawfully placed civilians at additional risk: bringing mortars in bags or wheelbarrows to a location in a populated area, launching several mortar rounds indiscriminately in the direction of Villa Somalia, the Ministry of Defense or other Ethiopian targets, and then leaving the area. The Ethiopian return fire was frequently aimed at general areas and was certain to hit civilians and civilian objects rather than military targets, in some cases because the insurgents were already gone. A woman said, "The Ethiopians used to fire back at wherever they received fire from-they would respond within minutes and sometimes keep firing shells for a few hours."[294]

An elderly man from Towfiq told Human Rights Watch,

Some of the neighbors suffered a lot of destruction. Many houses were destroyed. In every five houses in Towfiq, three of them were destroyed by the shelling. The shelling was simultaneous. Both sides used to fire at every direction. However, the Ethiopians fired more shells. The Ethiopians targeted everywhere and at wherever they sensed some kind of movement. It was difficult to spot the insurgents. You could hear them firing mortars and then 50 shells came as a response.[295]

A medical staff member at Al-Hayat Hospital, which was located on the frontline in Hamar Bile, near Ali Kamin junction, told Human Rights Watch that on March 30, one of the heaviest days of the fighting in that neighborhood, he estimated that between seven and 32 rounds of BM-21 rockets and other shells struck in the area per hour.[296]Al-HayatHospital itself was hit by at least one BM-21 rocket, and some of the staff were wounded (for further detail on the attacks on Al-Hayat, see Chapter VI, "Patterns of Abuse by Parties to the Conflict in Mogadishu," above). An eyewitness said, "I was in a ground floor room when a rocket making a whistling sound hit the car park in the building, spreading shrapnel. One of the shrapnel hit [me] in the leg while other shrapnel wounded [others]. The rocket came from the direction of Florence junction."[297]

Six people were killed in another incident outside Al-HayatHospital that same day. One witness told Human Rights Watch that all victims were killed by a BM rocket. A woman living in Hamar Bile said,

Lots of people were injured in the area. Just outside Al-HayatHospital, six people were killed, including men and women. Among the dead was SaladoShe used to sell tea outside Al-Hayat hospital. This happened on Friday [March 30] around 8 a.m. There were some men who were firing guns from the area. They carried AK-47s. The other side was responding immediately with heavy weapons. Sometimes they would continue bombardment for hours. On the day we fled, they [the Ethiopians] started the heavy shelling at around 12 noon and continued until 10 p.m.[298]

A resident described the destruction of Towfiq mosque, which killed at least 10 people:

In our area, there was lots of shelling, many houses were destroyed or damaged. There were lots of people in the streets who died from the shelling and fighting. Our house was hit partially but one of the neighbours ran to a mosque with a concrete roof for safety. It was called Towfiq mosque. They were hit by a shell and they all died when the building collapsed-10 people died there at the mosque, including a two-month-old baby. It was in the second day of the fighting [March 30].[299]

Like other civilian objects that can become military objectives if used by a warring party for military purposes, hospitals and mosques can lose their immunity from attack, but they should never be fired upon unless the attacker is able to target a military objective and the collateral loss of civilians and property would not exceed the expected military gain. Towfiq Mosque was very near to the Stadium, but it was not a military objective-it was being used by families for shelter because it was thought to be secure.

Ultimately, no area was truly secure. Civilians were killed and wounded by rockets, shells, and during firefights in their homes, on the streets, and in shops. While the deaths of civilians in combat situations does not necessarily mean that the laws of war were violated, the general disregard for the safety of the civilian population shown by both the insurgency and the Ethiopian forces raises legitimate concerns in every incident where there were civilian casualties.

Fahmo Elmi Ali was a 35-year-old woman who was nine months pregnant. When the rocket fire and shelling increased on March 30, she left Al-HayatHospital with her husband, and tried to go to SOSHospital, a maternity and pediatric hospital. According to medical staff at Al-Hayat, Fahom Elmi Ali and her husband left Al-HayatHospital at around 2 p.m. on their way to SOS. A few minutes later, a shell landed on them, killing her husband on the spot. She sustained injuries to both her legs. She was taken to the hospital where she gave birth to a stillborn baby. One of her legs was amputated in SOS. She was then transferred to Medina where her second leg was amputated. She died a few days later.[300]

A 42-year-old mother of seven from Towfiq said her uncle Gududow Abdullahi went to buy food and was hit by a shell on the way, near Al-ArafatHospital.[301]

A resident of the Livestock Market neighborhood described the terror of people fleeing under bombardment: "I saw people fleeing in groups. I saw terrified relatives pulling their elderly relatives out of the houses. People were fleeing to the open areas near MogadishuUniversity."[302] People fled on foot and on vehicles. Some sought to leave Mogadishu, carrying their belongings such as mattresses and bags. Others were seen trying to move to safer places within the city. Often the fighting and bombardment was so intense that any movement was impossible.

Many civilians lost their lives when trying to flee the fighting. An eyewitness described an incident on April 22 in Hawlwadag:

I saw three buses with fleeing civilians caught in the fighting. A BM [rocket] hit the convoy, all three of the buses were hit. The rocket blew one bus into two pieces; only the driver survived. The other two vehicles were also hit-all three buses burned. I saw this with my own eyes. I don't know how many died, but all three buses had fleeing civilians. People carried bodies out of the vehicles: some bodies were burned beyond recognition. It was Sunday, one day before I left [April 22], around 10:30-11 p.m. Those vehicles carry between 15 and 30 people-it was one minibus and two bigger buses.[303]

Human Rights Watch research indicates that the first round of fighting in late-March resulted in most of the civilian casualties, since many civilians were unable to flee until the ceasefire came into effect. However some of the worst physical destruction to civilian areas appears to have occurred during the second period of fighting in late April, which mostly affected Towfiq, Suq Ba'ad, and northern areas of Mogadishu around the Pasta Factory and the Livestock Market. A resident of the area around the Livestock Market who witnessed most of the fighting explained:

There were no armed confrontations, just completely sustained shelling in our area. The heaviest shelling was a few days after the suicide bombing attack [April 18]. The [Livestock] Market received the heaviest shelling. It is difficult to describe the destruction, you have to see it with your own eyes. The shells were coming in a sustained format, each shell fell 40 meters from the other one. In some areas, you would find 10 houses next to each other destroyed. [The Livestock Market neighborhood] is huge-there are 14 main streets, and each block is eight houses by sixteen houses. Thirty to forty percent of the houses in my area of the Livestock Market were destroyed, but Ali Kamin is even more destroyed. Lots of people were killed; most of them were buried under the rubble of their homes. I don't know the names of the people who were killed, but the whole area was emptied because of the shelling. You could walk for blocks without seeing anyone. And you could smell the bodies under the rubble.[304]

Dozens of civilians died in the last days of the April fighting, in the Livestock Market area and other areas that were shelled. On April 23, Abdullahi (not his real name) was with one of his wives in the SOSHospital area when he learned that his family's home in Towfiq had been hit by a rocket that killed his second wife and seven children:

I was phoned at the time [right after the attack], but there was no transport and it was too dangerous to go to Towfiq because of the fighting. It was the first time in my life that I cried, at the age of 65, and I am still crying all the time. The next morning, when I reached the house, there were no survivors. I tried to find survivors but I could only see blood and body parts. BM rockets, RT-5, and mortars were being fired into the neighborhood.[305]

A 44-year-old resident of the Livestock Market area visited his mortally wounded brother-in-law at the SOSHospital on the day it was bombarded. He told Human Rights Watch that he saw three rockets strike in front and on either side of the hospital building around 12 noon. He said, "Some [patients] were being treated [on] the veranda; some were lying on a mat. I saw seven dead bodies-six men and a woman-and around 10 wounded persons. The ages of the dead ranged from 20 and above. But the majority of the wounded were women and children."[306]

Several residents of the Livestock Market area told Human Rights Watch the shelling and rocket barrages reached their peak in this area on April 25, a day before the offensive ended.

VIII. Displacement by the Fighting

Displacement within Mogadishu

As the clashes intensified in February and March, some civilians moved to different areas of the city, trying to find a safe place to live. However, for poorer communities this was less of an option. Some people who had sufficient money moved their families to safer neighborhoods or even outside of Mogadishu as the attacks and reprisals increased, and sometimes moved several times as the fighting shifted or neighborhoods came under attack from either side.

The experience of 39-year-old "Khadija" (not her real name) and her family illustrates the challenges of finding security in Mogadishu in this period. The family lived in the Bulahubay neighborhood, close to Villa Baidoa, a large complex about two kilometers northwest of the airport, which was a base for Ethiopian troops and quickly became a target for insurgency mortar fire.

Fearing that the Ethiopian troops in the proximity could be targeted, Khadija moved her family from the Bulahubay area to KPP, in Hodan district, in early February. However, insurgents deployed in Hodan soon became a target for Ethiopian fire. She said, "The insurgents used the area as a platform to launch rocket attacks. I had to move again. I was accommodated by a friend at Bakara market area. My friend and her two children lived in a concrete house as this was the best place to take refuge."[307]

When the fighting intensified in late-March, two more families moved into the house. Khadija's family survived the fighting during the first Ethiopian offensive from March 29 through April 1, although they heard and witnessed explosions in their area, and some of their neighbors lost family members. As soon as the ceasefire came into effect on April 2, she decided to flee Mogadishu, fearing-as indeed was the case-that the lull in the bombardment was temporary and the fighting would soon resume.

For many of the poorer residents and displaced people living in Mogadishu, moving around the city and renting new accommodation was impossible, and even paying for transport to flee the city was beyond their means. As the fighting and bombardment continued, the roads filled with many of the city's poorest people fleeing on foot.[308]

Treatment of Displaced People Fleeing Mogadishu

At least 365,000 people fled Mogadishu in the period from February to May 2007, according to UN estimates.[309] Many of those who fled the city escaped during the temporary ceasefire beginning April 2 and in the roughly two-week period that followed. Tens of thousands of people stayed within the vicinity of Mogadishu, relocating to neighboring towns such as Afgoi and Marka (respectively 30 and 100 kilometers from the city, but many others traveled as far as Hargeysa and Bosaso in the north or all the way to the Kenyan border in the south.

Bandit attacks on civilians fleeing Mogadishu

After leaving their homes and surviving the intense fighting in the city, thousands of displaced people from Mogadishu suffered further attacks from criminal elements as they fled the city in March and April. Many of the fleeing civilians were attacked in an area between Marka and Jilib along the route to Kismayo. Others who took the road to Baidoa were attacked near Lego village. Those people who fled north used the main road that leaves Mogadishu towards the central regions, and Human Rights Watch heard many accounts of attacks on this group between Bulaburte and Beletweyne and between Beletweyne and Mataban.

The armed individuals and groups responsible for the attacks varied depending on the location, though the attacks often shared certain characteristics. The attackers appear to have been motivated by the opportunity to steal cash, goods, and other assets from unarmed civilians. In addition, in some areas there was a pattern of rape and sexual violence against women and girls.

Witnesses blamed bandits and other criminal elements for the attacks, not TFG or Ethiopian forces or the insurgency. However, even in locations like Marka and Afgoi that were under TFG control, the TFG failed to take steps to improve security for those in flight. Likewise, Ethiopian troops present in locations where attacks were occurring made no effort to intervene to stop or prevent attacks. For instance, many fleeing people were attacked near Lego village, which is close to Ballidogle airport, where the Ethiopian military has one of its biggest bases in Somalia.

Human Rights Watch interviewed dozens of individuals who told consistent accounts of armed men firing on them, stealing their possessions, and occasionally raping women and girls.[310] A few illustrative accounts are provided below:

• A 17-year-old girl who fled Mogadishu on March 23 said that she and her sister were in a minibus on the way to Dobley when it was attacked between Marka and Jilib. Armed men fired at the bus to stop it, then ordered everyone out and looted all possessions. The gunmen told everyone to lie down and those who refused were beaten. The men took the loot on a donkey cart, told men not to look at them, and then they left. She said, "They took away three women including my sister. They raped all three women, kept them for three to four hours and allowed them to rejoin us. My sister told me that she was raped by two men, alternating between them."[311]

• A 17-year-old girl who fled Mogadishu on April 21 was in a convoy that was ambushed just past Afgoi at 10 p.m. She said, "I witnessed one incident when a girl was taken out of a vehicle and raped in the bush nearby, she was about 25 years old. I saw the woman after she was released. She could not speak, she was crying."[312] Later in the journey, as her convoy traveled between Bulohawo and Mandera, it was ambushed again. Up to six people were wounded, including a driver who later died.

• On April 2 a woman who traveled through Wanlaweyn witnessed the aftermath of an attack on a vehicle in Lego village. When armed men tried to stop a minibus, she said, "The driver of the minibus speeded up in order to escape, prompting the gunmen to fire. Two people were killed and five were injured. I saw two dead male bodies in the bus as we passed by. An Ethiopian checkpoint was not that far from where these incidents took place."[313]

• A 35-year-old woman who was nine months pregnant and fled Mogadishu in late-April was in a convoy that was ambushed at Bal'ad. After bandits fired on the vehicle, "The driver stopped the bus and bandits came and took household materials and clothes. They were three men armed with AK-47s. They kept on searching the bus for three hours. They took away a bag full of household materials from me. They did not take away any women from the bus."[314]

• A man who left Mogadishu on April 29 was in a convoy that was ambushed at Jimbiley village, near Buloburte. He said, "The vehicle in front of us was shot at first. The driver of our vehicle managed to drive back and escaped. Three women and the driver were wounded in the first vehicle. This happened around 10 p.m. We drove back to a small village. However, we heard they robbed the other vehicle and took bags, clothes and money.[315]

IX. Applying International Humanitarian Law to the Conflict in Somalia

A. Applicable International Law

Under international humanitarian law, the conflict in Somalia is considered a non-international armed conflict. (An international armed conflict is an armed conflict between two or more states.) Although Ethiopian forces (and initially some US forces) were involved in the conflict in Somalia, they were acting at the invitation of, and in coalition with, the Somali Transitional Federal Government.[316] All warring parties, including the armed groups that comprise the insurgency, are bound by international humanitarian law (the laws of war).[317]

Article 3 common to the four Geneva Conventions of 1949 (Common Article 3) expressly binds all parties to a non-international armed conflict, including non-state armed groups. Common Article 3 requires the humane treatment of civilians and captured combatants and prohibits violence to life and person, particularly murder, mutilation, cruel treatment, and torture; taking of hostages; outrages upon personal dignity; and the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court.[318]

International humanitarian law on the conduct of hostilities is set out in the Hague Regulations of 1907[319] and the First Additional Protocol of 1977 to the Geneva Conventions (Protocol I).[320] Protocol I, which provides the most detailed and current codification of the conduct of hostilities during international armed conflicts, is not directly applicable to the conflict. The Second Additional Protocol of 1977 to the Geneva Conventions (Protocol II) on non-international armed conflicts is also not directly applicable because Somalia is not a party to the protocol (although Ethiopia is). Nevertheless, many if not most of the provisions of Protocols I and II have been recognized by states to be reflective of customary international law.[321]

The legal analysis applied in this report frequently references norms enshrined in Protocols I and II, but as an important codification of customary law rather than as a treaty obligation. Customary humanitarian law as it relates to the fundamental principles concerning conduct of hostilities is now recognized as largely the same whether it is applied to an international or a non-international armed conflict.[322]

B. Protections for Civilians and Civilian Objects

International humanitarian law limits permissible means and methods of warfare by parties to an armed conflict and requires them to respect and protect civilians and captured combatants. "Means" of combat refers generally to the weapons used, while "methods" refers to the manner in which such weapons are used.

The two fundamental tenets of international humanitarian law are those of "civilian immunity" and "distinction."[323] They impose a duty, at all times during the conflict, to distinguish between combatants and civilians, and to target only the former. Article 48 of Protocol I states, "Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives."[324] While Protocol I recognizes that some civilian casualties are inevitable, parties to a conflict may not target civilians and civilian objects and may direct their operations against only military objectives.

Civilian objects are those that are not considered military objectives.[325] Military objectives are combatants and those objects that "by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage."[326] In general, the law prohibits direct attacks against what are by their nature civilian objects, such as homes and apartments, places of worship, hospitals, schools, or cultural monuments, unless they are being used for military purposes.[327]

International humanitarian law prohibits indiscriminate attacks. Indiscriminate attacks are "of a nature to strike military objectives and civilians or civilian objects without distinction." Examples of indiscriminate attacks are those that "are not directed at a specific military objective" or that use means that "cannot be directed at a specific military objective."[328]

One form of prohibited indiscriminate attack is area bombardment. Any attack, whether by artillery shelling or other means, that treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, or other area containing a concentration of civilians and civilian objects, is regarded as an indiscriminate attack and prohibited. Similarly, if a combatant launches an attack without attempting to aim properly at a military target, or in such a way as to hit civilians without regard to the likely extent of death or injury, it would amount to an indiscriminate attack.[329]

Also prohibited are attacks that violate the principle of proportionality. Disproportionate attacks are those that are expected to cause incidental loss of civilian life, injury to civilians, or damage to civilian objectives that would be excessive in relation to the concrete and direct military advantage anticipated from the attack.[330] The expected danger to the civilian population and civilian objects depends on various factors, including their location (possibly within or near a military objective), the accuracy of the weapons used (depending on the trajectory, the range, environmental factors, the ammunition used, etc.), and the technical skill of the combatants (which can lead to random launching of weapons when combatants lack the ability to aim effectively at the intended target).[331]

International humanitarian law requires that the parties to a conflict take constant care during military operations to spare the civilian population and to "take all feasible precautions" to avoid or minimize the incidental loss of civilian life, as well as injury to civilians and damage to civilian objects.[332] In its authoritative Commentary on Protocol I, the International Committee of the Red Cross explains that the requirement to take all "feasible" precautions means, among other things, that the person launching an attack is required to take the steps needed to identify the target as a legitimate military objective "in good time to spare the population as far as possible."

These precautions include:

• Doing "everything feasible to verify" that the objects to be attacked are military objectives and not civilians or civilian objects. If there are doubts about whether a potential target is of a civilian or military character, it "shall be presumed" to be civilian.[333] The warring parties must do everything feasible to cancel or suspend an attack if it becomes apparent that the target is not a military objective.[334]

• Taking "all feasible precautions in the choice of means and methods" of warfare so as to avoid and in any event minimize "incidental loss of civilian life, injury to civilians and damage to civilian objects."[335]

• When circumstances permit, giving "effective advance warningof attacks which may affect the civilian population."[336]

• "When a choice is possible between several military objectives for obtaining the same military advantage," carrying out the attack that may be "expected to cause the least danger to civilian lives and civilian objects."[337]

• Avoiding "locating military objectives within or near densely populated areas."[338]

• Endeavoring "to remove the civilian populationfrom the vicinity of military objectives."[339]

International humanitarian law does not prohibit fighting in urban areas, although the presence of civilians places greater obligations on warring parties to take steps to minimize harm to civilians. Humanitarian law prohibits belligerents from using civilians to shield military objectives or military operations from attack. "Shielding" refers to purposefully using the presence of civilians to render certain points, areas, or military forces immune from military attack.[340] Taking over a family's home and not permitting the family to leave for safety so as to deter the enemy from attacking is a simple example of using "human shields."

The prohibition on shielding is distinct from the requirement that all warring parties take "constant care" to protect civilians during the conduct of military operations by, among other things, taking all feasible precautions to avoid locating military objectives within or near densely populated areas.[341] Such a determination will depend on the situation.

With respect to individual responsibility, serious violations of international humanitarian law, including deliberate, indiscriminate and disproportionate attacks harming civilians, when committed with criminal intent, are considered war crimes. Individuals may also be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, aiding or abetting a war crime. Responsibility may also fall on persons planning or instigating the commission of a war crime.[342] Commanders and civilian leaders may be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.[343]

C. Violations of International Humanitarian Law by the Parties to the Conflict in Mogadishu

This report describes numerous violations of the laws of war by insurgent, Ethiopian, and TFG forces since January 2007. Violations by one party to a conflict do not justify violations by the opposing side: the unlawful deployment of insurgent forces in densely populated neighborhoods of Mogadishu did not justify indiscriminate and disproportionate bombardments of those areas by Ethiopian forces. Serious violations committed by individuals knowingly or recklessly are war crimes. States have an obligation to investigate and prosecute individuals implicated in war crimes committed on their territory.[344]

Violations by the insurgency

The insurgency:

• Deployed their forces in densely populated civilian areas and often launched mortar rounds in "hit-and-run" tactics that placed civilians at unnecessary risk. Further investigation is required to determine whether insurgents purposefully used civilians to shield themselves from attack, a war crime.

• Fired weapons, particularly mortars, in a manner that did not discriminate between civilians and military objectives.

• Targeted TFG civilian officials for attack.

• In at least one incident executed captured combatants in their custody, and subjected the bodies to degrading treatment.

Violations by Ethiopian forces

Ethiopian forces:

• Failed to take all feasible precautions to avoid incidental loss of civilian life and property. They failed to verify that targets were military objectives.

• Failed to take all feasible precautions to avoid civilian casualties by their choice of means (firing inherently indiscriminate rockets in urban areas) and methods (using mortars and other indirect weapons without spotters) of warfare.

• Routinely and repeatedly fired rockets, mortars, and artillery in a manner that did not discriminate between civilian and military objectives or that caused civilian loss of life that exceeded the expected military gain. The use of area bombardments in populated areas and the failure to cancel attacks once the harm to civilians became known is evidence of criminal intent necessary to demonstrate the commission of war crimes.

• In specific instances-namely attacks on hospitals-appeared to deliberately target civilian objects known to contain civilians.

• Committed widespread pillaging and looting of civilian property, including of medical equipment at hospitals.

Violations by the Transitional Federal Government forces

TFG forces:

• Failed to provide effective warnings when alerting civilians of impending military operations.

• Committed widespread pillaging and looting of civilian property.

• Interfered with the delivery of humanitarian assistance and in some instances directly attacked humanitarian personnel.

• Committed mass arrests and mistreated persons in custody.

X. Recommendations

To the Transitional Federal Government of Somalia (TFG)

• Immediately issue clear public orders to all TFG security forces to cease attacks on and mistreatment of civilians, and looting of civilian property.

• Ensure humanitarian assistance to all civilians in need, including by facilitating humanitarian agencies in their access to all displaced persons in and around Mogadishu.

• Publicly reassure all displaced residents of Mogadishu that they are welcome to return to Mogadishu and that the TFG is cognizant of its responsibility to provide security to all Somali civilians under its control, regardless of clan affiliation.

• Cease all mistreatment of detainees and ensure that they have access to family members, legal counsel, and adequate medical care while in detention. Immediately and publicly communicate these instructions to all police and other security forces in Mogadishu. Encourage independent monitoring of detention facilities.

• Investigate allegations of abuses by TFG forces and hold accountable members of the TFG forces, whatever their rank, implicated in abuses.

• Take all necessary steps to build a competent, independent, and impartial judiciary that can provide trials that meet international fair trial standards. Abolish the death penalty as an inherently cruel form of punishment.

• Support efforts to deter abuses in Somalia in the future, such as by inviting and facilitating UN and independent international human rights organizations to investigate allegations of abuses by all sides.

• Invite the UN Office of the High Commissioner for Human Rights to increase the number of staff monitoring and reporting on human rights abuses in Somalia and request technical support for the judiciary and the establishment of an independent national human rights commission.

To the groups comprising the insurgency

• Cease all attacks on civilians and civilian objects. Commanders and other leaders of the Al-Shabaab and other armed groups should ensure that civilians are never targeted for attack. International humanitarian law defines civilians to include government officials and employees not directly participating in the hostilities, school teachers and other non-combatant civil servants, humanitarian aid and development workers, journalists, and doctors.

• Cease all attacks that cause indiscriminate or disproportionate harm to civilians or civilian objects. Insurgent forces attacking military targets must take all feasible steps to minimize harm to civilians. No attack should be carried out that uses means and methods of war that do not distinguish between civilians and combatants or are expected to cause excessive civilian harm. The insurgency should avoid any attacks in crowded civilian areas, such as busy roads, village or city streets, markets, or other public gathering places.

• Avoid locating, to the extent feasible, insurgent forces within or near densely populated areas, and where possible remove civilians from the vicinity of such forces. Avoid using populated areas to launch attacks and cease threatening civilians who protest the use of their neighborhoods as launching sites. Never purposefully use civilians to shield insurgent forces from attack.

• Publicly commit to abide by international humanitarian law, including prohibitions against targeting civilians, using indiscriminate and disproportionate attacks, and using civilians as "human shields."

To the government of Ethiopia

• Cease all attacks that deliberately target civilians and cease using means and methods of combat that cannot discriminate between civilians and military objectives. Civilian objects such as schools, hospitals, and homes must not be attacked unless currently being used for military purposes.

• Cease all indiscriminate attacks and attacks in which the expected civilian harm is excessive compared to the concrete and direct military gain anticipated. In particular, cease the use of area bombardments of populated areas of Mogadishu.

• Avoid locating, to the extent feasible, military assets such as bases in or near densely populated areas.

• Protect medical facilities and other protected sites.

• Issue clear public orders to all forces that they must uphold fundamental principles of international humanitarian law and provide clear guidelines and training to all commanders and fighters to ensure compliance with international humanitarian law.

• Investigate and discipline or prosecute as appropriate military personnel, regardless of rank, who are responsible for serious violations of international humanitarian law including those who may be held accountable as a matter of command responsibility.

To the participants in the National Reconciliation Conference and representatives of civil society

• Call for accountability and oppose amnesties for serious violations of international law committed by all parties to the conflict to help ensure the rights of individual victims to justice and an effective remedy, and to build a genuine and lasting peace.

• Acknowledge the plight of women, displaced persons and minorities and allow their representatives to participate meaningfully in the National Reconciliation Conference.

To the European Union and its member states, the European Commission, the government of the United States, the African Union, and the Arab League

• Publicly condemn the serious abuses of international human rights and humanitarian law committed by all parties to the conflict in Mogadishu in 2007, and specifically call on the Ethiopian government and Transitional Federal Government to take all necessary steps, including public action, to ensure that their forces cease abuses against all persons in custody.

• Support measures to promote accountability and end impunity for serious crimes in Somalia, including through the establishment of an independent United Nations panel of experts to investigate and map serious crimes and recommend further measures to improve accountability.

• Remind the Ethiopian and Somali governments of their obligations under international law to investigate and discipline or prosecute as appropriate military personnel, regardless of rank, who are responsible for serious violations of international human rights or humanitarian law, including those who may be held accountable as a matter of command responsibility.

• Reiterate that amnesties at the national level are not applicable to international crimes.

• Publicly and privately demand that the Ethiopian government cease summary executions, deliberate attacks against civilians and civilian objects, and the use of area bombardment in populated areas, reminding the government that these are grave violations of international humanitarian law that can amount to war crimes.

• Publicly promote and financially support civil society efforts to provide humanitarian assistance, services such as education, monitoring of the human rights situation, and efforts to promote national solidarity, and also TFG efforts to improve the functioning of the judicial system and to establish a national human rights commission. Provide voluntary contributions to support an expanded OHCHR field operation in Somalia.

To the government of the United States

• Investigate reports of abuses by Ethiopian forces, identify the specific units involved, and ensure that they receive no assistance or training from the United States until the Ethiopian government takes effective measures to bring those responsible to justice, as required under the "Leahy law," which prohibits US military assistance to foreign military units that violate human rights with impunity.

To the African Union

• Ensure that the African Union Mission in Somalia (AMISOM) publicly raises concerns over violations of international human rights and humanitarian law with all parties to the conflict in Mogadishu.

• Establish dialogue mechanisms with TFG and Ethiopian commanders as well as the insurgency about rules of engagement, tactics and international humanitarian law.

• Provide adequate pre-deployment training and establish a human rights monitoring mechanism by AMISOM contingents regarding protection of civilians, especially women and children, and sexual violence.

To the United Nations

To the UN Security Council

• Condemn serious violations of international humanitarian and human rights law that have been and continue to be perpetrated in Somalia by all parties to the conflict.

• Support measures to promote accountability and end impunity for serious crimes in Somalia, including through the establishment of an independent panel of experts to investigate and map serious crimes and recommend further measures to improve accountability.

• Ensure that any peacekeeping operation authorized by the United Nations Security Council, whether a regional or UN operation, includes robust protection of civilians within its mandate, and gender and child specific components.

• Call on the UN secretary-general to take immediate action on the grave human rights situation in Somalia including by:
• Providing monthly progress reports on the human rights situation to the Security Council; and
• Establishing an independent panel of experts to investigate abuses associated with the recent conflict in Mogadishu, retrospectively map the most serious crimes in Somalia's recent history, and present recommendations for accountability.

To the UN Secretary-General

• Support an increase in the number of OHCHR staff monitoring and publicly reporting on human rights abuses in Somalia and urge donors to provide additional voluntary contributions for this operation.

• Establish an independent panel of experts to investigate abuses associated with the recent conflict in Mogadishu, retrospectively map the most serious crimes in Somalia's recent history, and present recommendations for accountability.

To the UN Office of the High Commissioner for Human Rights (OHCHR)

• Increase the number of human rights officers monitoring and publicly reporting on human rights abuses in Somalia, and include staff with expertise on child and minority protection and sexual and gender-based violence.

• Explore the possibility of providing technical support to the Somali judiciary and to Somali government efforts to establish an independent national human rights commission.

To the UNDP Resident Representative (and head of the UN Country Team)

• Ensure that the program and advocacy work of the UN agencies operating in Somalia highlights the protection of displaced and conflict-affected populations and that it is based on international human rights and humanitarian law standards.

• Support an increase in the number of OHCHR staff monitoring and publicly reporting on human rights abuses in Somalia and urge donors to provide additional voluntary contributions for this operation.

• Ensure that all TFG forces participating in UNDP-funded training programs have been screened for human rights abuses.

XI. Methodology

This report is based on a six-week fact-finding mission to Kenya and Somalia in April and May and subsequent telephone research in June and July 2007. Human Rights Watch researchers included staff with extensive experience investigating violations of international humanitarian law in armed conflicts.

In April and March Human Rights Watch researchers conducted in-depth interviews in Nairobi, Galkayo, Hargeysa, Bosaso, and Mogadishu with more than 70 victims, family members of victims and other eyewitnesses. Researchers also conducted more than 30 telephone interviews with victims and witnesses to events in Mogadishu in June and July. In addition, we interviewed dozens of medical staff, independent analysts, diplomatic officials, aid workers, and journalists, some of whom were eyewitnesses to events described in the report.

For security reasons, many people spoke to Human Rights Watch on the condition of confidentiality, requesting that the report not mention their names or other identifying information. We also omitted details about individuals and locations of interviews where we believed that information could place a person at risk.

XII. Acknowledgements

Researchers in the Africa division wrote this report based on research in Kenya and Somalia in April and May 2007 by Africa division and emergencies program staff, and subsequent research by Africa division staff in June and July.

The report was edited by Georgette Gagnon, deputy director of the Africa division, and Iain Gorvin, consultant to the program office. Several Human Rights Watch staff reviewed sections of the report, including Peter Bouckaert, emergencies director; Marc Garlasco, senior military analyst; and Joanne Mariner, terrorism and counter-terrorism program director. James Ross, legal and policy director, provided legal review.

Anna Gressel, associate in the Africa division, coordinated report production and provided invaluable administrative support. Thanks are due to Ndeye Fatu Sesay, Anja Kortenaar, Lucy Cohen, and Michael Ginsberg, interns in the Africa division, who provided research assistance. Veronica Matushaj, audio-visual director of Human Rights Watch, and Anna Lopriore assisted with the cover photograph. Andrea Holley and Fitzroy Hepkins made possible the production of the report. Yaron David designed the maps of Mogadishu.

Human Rights Watch would like to thank the many individuals and organizations who offered assistance, analysis, or information that made this report possible. Many of their names have been withheld due to the fear of reprisals.

Above all, Human Rights Watch is deeply grateful to the many Somali men and women who agreed to share their experiences with our researchers.