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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 1907³¹⁹ 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 warning…of 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 population…from 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.