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
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:
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 familys 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
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
316 TFG officials have 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 favor of foreign peacekeepers, IRINnews, June 15, 2007, http://www.reliefweb.int/rw/RWB.NSF/db900SID/LSGZ-6QSE39?OpenDocument (accessed July 18, 2007).
317 See generally the discussion of the applicability of international humanitarian law to non-state armed groups in ICRC, Customary International Humanitarian Law, pp. 497-98.
318 Article 3 of the First, Second, Third, and Fourth Geneva Conventions. Somalia became a party to the Geneva Conventions in 1962. Ethiopia became a party to the Geneva Conventions in 1969.
319 Convention (IV) Respecting the Laws and Customs of War on Land and the Annexed Regulations Concerning the Laws and Customs of War on Land of 18 October 1907 (Hague Regulations), 3 Martens Nouveau Recueil (ser. 3) 461, 187 Consol. T.S. 227, entered into force January 26, 1910.
320 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, 1125 U.N.T.S. 3, entered into force December 7, 1978. Somalia is not party to Protocol I. Under article 96 of Protocol I, non-state actors may commit, under certain specific circumstances, to apply the Geneva Conventions and the protocols if they declare their willingness to do so to the Swiss government.
321 See Yorem Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 2004), pp. 10-11 (the Hague Convention (IV) of 1907 has acquired over the years the lineaments of customary international law and [m]uch of the Protocol may be regarded as declaratory of customary international law, or at least as non-controversial). See generally ICRC, Customary International Humanitarian Law.
322 One important difference relates to reprisals, which are permitted in very limited circumstances during international armed conflicts but not in non-international armed conflicts.
323 See Protocol I, arts. 48, 51(2), 52(2).
324 Ibid.I, art. 48.
325 Ibid., art. 52(1).
326 Ibid., art. 52.2.
327 ICRC, Customary International Humanitarian Law, rule 8, citing military manuals and official statements.
328 See Protocol I, art. 51(4).
329 Ibid., art. 51(5)(a).
330 Ibid., art. 51(5)(b).
331 ICRC, Commentary on the Additional Protocols, p. 684.
332 Protocol I, art. 57.
333 Ibid., art. 52(3).
334 Ibid., art. 57(2).
335 Ibid., art. 57(2).
336 Ibid., art. 57(2).
337 Ibid., art. 57(3).
338 Ibid., art. 58(b).
339 Ibid., art. 58(a).
340 Ibid., art. 57(7).
341 Ibid., arts. 57, 58.
342 See ICRC, Customary International Humanitarian Law, p. 554.
343 Ibid., rule 153.
344 Ibid., rule 158.