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Stop Human Rights Abuses
"So Much to Fear"
December 8, 2008

International Humanitarian Law and the Conflict in Somalia

International humanitarian law (the laws of war) imposes upon parties to an armed conflict legal obligations to reduce unnecessary suffering and protect civilians and other non-combatants.[36] All armed forces involved in a conflict, including non-state armed groups, must abide by international humanitarian law.[37] Individuals who violate humanitarian law with criminal intent can be prosecuted in domestic or international courts for war crimes.[38]

Humanitarian law does not regulate whether states and armed groups can engage in armed conflict, but rather how they engage in hostilities. Insurgency itself is not a violation of international humanitarian law: the laws of war do not prohibit the existence of insurgent groups or their attacks on legitimate military targets.[39] Rather, the law places restrictions on the means and methods of warfare, and imposes upon regular armies and insurgent forces alike a duty to protect civilians and captured combatants, and to minimize harm to civilians and civilian objects during military operations.

Under humanitarian law, the conflict in Somalia-involving Ethiopian and Somali Transitional Federal Government forces against insurgent armed groups-is considered a non-international (or internal) armed conflict (an international armed conflict is one between two or more states).[40] Ethiopian forces have been viewed internationally as acting at the invitation of, and in coalition with, the TFG, rather than directly using force against another government.[41] The international law relating to the conduct of hostilities is now recognized as largely the same whether it is applied to an international or a non-international armed conflict.

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.[42] The fundamental tenets of this law are "civilian immunity" and "distinction."[43] These tenets impose a duty at all times during the conflict to distinguish between combatants and civilians, and to target only combatants.[44] Also protected are civilian objects, which are defined as anything not considered a military objective.[45] Prohibited are direct attacks against civilian objects, such as homes, businesses, and apartments, places of worship, hospitals, schools, and cultural monuments-unless they are being used for military purposes.[46]

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 weapons that cannot be directed at a specific military objective. Prohibited indiscriminate attacks include area bombardment, which are attacks by artillery or other means that treat as a single military objective a number of clearly separated and distinct military objectives located in an area containing a concentration of civilians and civilian objects.[47] Also prohibited are attacks that violate the principle of proportionality. Disproportionate attacks are those that are expected to cause incidental loss of civilian life or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated from the attack.[48]

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 and damage to civilian objects.[49] These precautions include: doing everything feasible to verify that the objects of attack are military objectives and not civilians or civilian objects[50]; giving "effective advance warning" of attacks when circumstances permit[51]; avoiding locating military objectives near densely populated areas[52]; and endeavoring to remove a civilian population from the vicinity of military objectives.[53]

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. Belligerents are prohibited from using civilians to shield military objectives or operations from attack. "Shielding" refers to purposefully using the presence of civilians to render military forces or areas immune from attack.[54] 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."[55]

Violations of the laws of war by one side to a conflict do not justify violations by the opposing side.[56] For example, in Somalia, the unlawful deployment of insurgent forces in densely populated areas does not permit the indiscriminate or disproportionate use of force by Ethiopian forces in response.

Finally, humanitarian law requires the humane treatment of civilians and captured combatants. It prohibits violence to life and person, particularly murder, mutilation, cruel treatment, and torture.[57] It is also unlawful to commit rape and other sexual violence; targeted killings of civilians, including government officials and police, who are not participating in the armed conflict; and engage in pillage and looting.

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.[58] 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.[59]

All sides to the armed conflict in Somalia have committed serious violations of international humanitarian law. Those responsible, whatever their rank, should be held accountable for war crimes. Insurgent forces launch indiscriminate mortar attacks on Ethiopian and TFG targets from densely populated areas, often using local residents as shields against Ethiopian counterattacks. Ethiopian forces continue to conduct indiscriminate and likely disproportionate bombardments of populated urban areas in response that cause numerous civilian deaths and injuries. TFG forces, often commanded or accompanied by Ethiopian troops, commit assaults, rapes, killings, and pillage of civilians during house-to-house search operations. And the insurgent campaign of threats and targeted killings of civilian officials, civil society activists, and any person deemed to be an enemy continues unabated.

[36]International humanitarian law on the conduct of hostilities is set out in the Hague Regulations of 1907 and the First Additional Protocol of 1977 to the Geneva Conventions (Protocol I). 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). 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.

[37]See generally the discussion of the applicability of international humanitarian law to non-state armed groups in International Committee of the Red Cross (ICRC), Customary International Humanitarian Law (Cambridge, UK: Cambridge University Press, 2005), pp. 497-98.

[38]See ibid., rule 158.

[39] While insurgency is not a violation of international law, acts by armed groups are frequently in violation of domestic law. The criminal law of Somalia is applicable with respect to many insurgent activities described in this report. Somali law, like the laws of most nations, proscribes basic domestic crimes including murder, assault, arson, rebellion, and crimes relating to attacks on government forces or installations. See Book 2, Chapter I of the Somali Penal Code, 1967.

[40] See article 2 common to the four Geneva Conventions of 1949.

[41] TFG officials had repeatedly called for the deployment of regional and international forces in Somalia to support the weak transitional government. On June 14, 2006, after long disagreement, the Somali parliament voted for the deployment of African Union troops "no matter what country they are from." "Somalia: Parliament votes in favour of foreign peacekeepers," IRINnews, June 15, 2007, http://www.reliefweb.int/rw/RWB.NSF/db900SID/LSGZ-6QSE39?OpenDocument (accessed November 7, 2008).

[42] 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.

[43]See Protocol I, arts. 48, 51(2), and 52(2).

[44] 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."

[45]Ibid., art. 52(1). 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." Ibid., art. 52.2.

[46]See ICRC, Customary International Humanitarian Law, rule 8, citing military manuals and official statements.

[47]See Protocol I, art. 51(4). 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. Ibid. art. 51(5)(a).

[48]Ibid., art. 51(5)(b). 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). ICRC, Commentary on the Additional Protocols, p. 684.

[49] Protocol I, art. 57.  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." ICRC, Commentary on the Additional Protocols, p. 682.

[50]If there are doubts about whether a potential target is of a civilian or military character, it "shall be presumed" to be civilian. Protocol I, art. 52(3). 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. Ibid., art. 57(2).

[51]Ibid., art. 57(2).

[52]Ibid., art. 58(b).

[53]Ibid., art. 58(a).

[54]Ibid., art. 51(7).

[55] 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. Ibid., arts. 57, 58. Such a determination will depend on the situation.

[56]See ICRC, Customary International Humanitarian Law, rule 140, citing Common Articles 1 and 3 to the Geneva Conventions.

[57] Article 3 common to the four Geneva Conventions of 1949, which is binding on all parties to a non-international armed conflict. Somalia became a party to the Geneva Conventions in 1962. Ethiopia became a party to the Geneva Conventions in 1969.

[58]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. See ICRC, Customary International Humanitarian Law, p. 554.

[59]Ibid., rule 153.