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« PROTECTION OF HUMAN RIGHTS DURING THE ARMED CONFLICT IN SOMALIA: INTERNATIONAL LEGAL ASPECTS»

MASTER’S THESIS
« PROTECTION OF HUMAN RIGHTS DURING THE ARMED CONFLICT IN SOMALIA: INTERNATIONAL LEGAL ASPECTS»

Author: Abdiwali Bashir Bulhan

 

ABSTRACT

Somalia is a state of constantly ongoing armed conflict between different groups, unstable political, social and economic situation. Many atrocities are committed during the period of conflict including deliberate attacks against civilians and their objects both peace times and as well as conflicts between belligerents.
Against this background, this thesis attempts to analyze human rights protection in Somalia from point of view of international law. And whether Somalia adhered its obligations to respect, protect, and fulfill the protection of its citizens against violation and abuses as guided by the international human rights treaties.
Examine ways to held accountable for those groups involved in the armed conflict for their violations or abuse under the established international legal regimes, and whether Somalia government able or willing to prosecute, to provide remedies and reparation for the victims under international law, and, to deeply discuss the concept of “effective control” and state capacity to protect its citizens.
Thesis also examines the principle of Responsibility to Protect and its applicability in Somalia, in situation where the State is unable or unwilling to protect its people under its jurisdiction, and lastly, it will be presented several recommendations and best practices to improve human rights situation in Somalia and fight impunity.

CONTENTS

INTRODUCTION
Globally, the world witnesses gross violations of human rights and abuses of humanitarian rules, with no respect afforded to existing international legal instruments during armed conflicts. These prolonged armed conflicts perhaps threaten the peace and stability of the entire world.
As reported many human rights organizations, violence and abuses continue to happen in places like Syria, Iraq, Somalia etc. where governments and non-state armed groups opposing the government carried out deliberate and serious abuses, including indiscriminate attacks on civilians, torture, using child soldiers, kidnapping and executions.
In African continent, many countries remain political instability where sitting leaders refuse to transfer power peacefully and perhaps, launch violent crackdown to suppress oppositions and public protests as it happened in Burundi, Democratic Republic of Congo, while others remain in power more than 30 years.
In Somalia, the situation is getting worse comparing to its sister African nations. The Country has experienced constant instability and prolonged conflict lasted nearly two decades. With collapsed State and week institutional capacity, widespread violence, armed conflict as well as continued political disagreement between parties in conflict.
Civilians are suffering a targeted attacks, committed by all parties in the armed conflict, particularly, the Al-Shabaab (Islamist armed group affiliated from Al-Qaida). To mention less, these attacks include suicide bombing, arbitrary execution, improvised explosive devices that cause indiscriminate attacks against civilians and their infrastructure and severely restrict basic human rights in areas under control.
Reportedly, over 1 million of Somalis remain internally displaced, facing forced evictions and desperate humanitarian condition.
The main purpose of this thesis is to investigate humanitarian and human rights situation in Somalia during the armed conflict that opposed different actors.
Human rights are rights inherent to all human beings, whatever nationality, and place of residence, sex, ethnic origin, religion, color, language or any other status belonging to. And human rights are all interrelated, interdependent and indivisible.
The Purpose of the Thesis Work
The purpose of this study is to investigate humanitarian and human rights situation in Somalia by conducting theoretical study of the problems caused by violations and abuses. The study aims to find out to what extent violations of human rights occurred in Somalia during the civil war and armed conflict, and what parties were involved. The study also examines legal instrument applicable in the situations of armed conflict and whether Somalia government is willing to hold accountable individuals and groups committed gross violations of human rights.
Aims of the study are:
To contribute to build knowledge and deep understandings of Somalia humanitarian and human rights conditions.
To yield detailed truth by systematic investigation of facts and alleged violations of human rights during the armed conflict.
To analyze the available literature and sources, find out parties and groups involved the alleged violations and abuses of humanitarian and human rights law.
To review international law texts and publications, analyze applicable international humanitarian law, criminal law and human rights treaties that applicable in situations of armed conflict, and Somalia is States Parties.
To evaluate State capacity and concept of effective control and to what extent Somali government is able to prosecute and punish alleged individuals and groups.
To analyze and drew conclusions on the principle of responsibility to protect and its applicability in Somalia.
To improve practice and implementations of policy makers, legislations in Somalia and other concerned individuals and organizations.
To effect social change, by elimination of the culture of impunity and encouraging accountability and redress.
To be the basis of further studies of the thesis subject matter.
Formulation of the Thesis’ Structure
After having described the main purpose and core areas of this thesis, further, the following section will be presented the structure and methodological approach of the thesis.
The thesis consists of three major parts:
Chapter one presents the background and the nature of the armed conflict in Somalia. Furthermore, the humanitarian and human rights condition in the country.
The second chapter of the thesis, it will be devoted to international legal instruments with regard to the situation of armed conflict; provide the definition of human rights and its historical background, and the current human rights condition in Somalia.
In the third chapter, it divided into four sub-titles: (a) actors and parties involved in armed conflict and their alleged violations, (a) accountability in accordance with the international criminal and human right law. Further, (c) the responsibility of the Somali government to investigate, prosecute and punish alleged parties involved the violations, (d) Somalia State capacity to respect, protect and fulfill international obligations, critical analysis of the concept “effective control” and State capacity to protect and fulfill human rights obligations, in addition to that, analyze the principle of responsibility to protect, in the situations where the State is unable or unwilling to protect its people under its jurisdiction. And lastly, conclude the thesis conclusions and summary of findings.
Methods of Research
This thesis will be based on doctrinal research, whereby the following research methods will be used:
Literature review is used throughout the research.
Theoretical research is used to analyze, extrapolate, (re)construct, and compare the information gathered from the literature review.
Review existing resolutions, reports, fact-finding missions of United Nations Agencies, Treaty Bodies and other non-governmental organizations.
Significance of the Study
The primary aim of the study is to contribute in the limited existing literature on the conflict in Somalia vis-à-vis human rights violations. When it comes to Somalia, the available researches and publication are limited, and surprisingly; in Somalia, where the conflict is widespread in the last two decades, it was very rare to find comprehensive relevant publications and studies on the subject matter. In that sense, this thesis will contribute to bring at least basis on the topic “conflict in Somalia vis-à-vis human rights violations”.
What is more, the study will be beneficial to many people, including academicians, researchers, policy makers, legislators and observers of Somali conflict, peace building and state building.
Furthermore, the study will help community elders, political leaders to competence themselves dynamics of the conflict, recovery process and transitional justice, to find lasting peace, stability, social justice and strong institutions that capable to upheld the rule of law and protect basic rights of the citizens and other residents in the country.
CHAPTER I.
BACKGROUND TO THE CURRENT SITUATION IN SOMALIA

In this part of the thesis, we will briefly present background to the current situation in Somalia in terms of political, social, humanitarian human rights. It’s essential in further understanding of the problem and the challenges facing the country.
Somalia is African Country located in the Horn of the Africa; the official name is “Federal Republic of Somalia or Somalia”.

Source: Somalia Map: worldatlas:
Like much of African countries, the impact of colonialism left its imprint on Somalia. During the time of colonialism, the European (France, Britain and Italy) divided the Somalia nation amongst themselves, partitioning Somalia into five separate parts or “protectorates”. While one portion remained under the control of Kenya, the Ogaden province was given to Ethiopia’s King Menalik by the British Empire. Although British Somaliland and Italian Somaliland were united at independence on 1 July 1960, the French kept Djibouti under colonial administration, and the region did not gain independence until 1977. The effects of this partitioning continue to permeate Somalia society today.
After independent, from 1960-1969, the country was ruled by the first democratically elected government after in 1970 President Mohammed SiyadBarre proclaimed a socialist state after coup, paving the way for close relations with the USSR.
The country’s recent history (1990-2017), has been marked by permanent violence, mostly armed groups, terrorists or radical/extremist religious groups and anarchy.
According to several studies, significant non-international armed conflict was absent during Somalia’s first 17 years of independence (1960-77). The first 10 years of independence were marked by vibrant but corrupted and eventually dysfunctional multiparty democracy. When the military come to power in a coup in 1969, it was initially greeted with broad popular support because of public disenchantment with the clannishness and gridlock that had plagued politics under civilian rule.
President Barre abolished the constitution and established strong, oppressive military dictatorship and ruled the country almost 21 years until 1991 when the administration of Bare’s rule collapsed. t
As argued by some contemporary Somali scholars, for the first few years the revolutionary council (Barre’sregime) was able to achieve tangible national interests, including writing down the Somalia language, (script officially introduced January 1973), building strong army forces and building new government institutions.
In 1977, President Barre attempted to unite ethnic Somali people under one State, which Somali public supported. Somalia lost the war between Somalia and Ethiopia in 1977/78 war between. The war cost in attempt number of military officers to take over the government. When the coup failed, the Regime started to use excessive force against suspected persons belonging to specific clans. The researches of Somalia conflict described that, “the event was the beginning of Somalia’s civil war”.
Later, things were changed and unstable government and internal conflict already had begun.
On their paper work, Afyare and Barise observed the root causes of the conflict which still has its affect in Somalia. They summarized the following:
“The Somalia people have suffered from prolonged oppression and violence at the hands of their fellow Somalis. They had lived in difficult and harsh conditions under both democratic and military regimes. The Somalia civil war has multiple and complex causes including political, economic, cultural and psychological. Various external and internal actors have played different roles during the various states of the conflict, the politicalized clan identity, and the availability of weapons, the large number of unemployed youth and clan militia competing resources and power.
This resulted a critical weakening of the Government and the other institutions such as military and police, and as consequence, give rise clan-based opposing groups.
These groups were violently repressed by President Barre, leading to a full-scale civil war from 1989-1991 and subsequently President Barre regime collapsed.
In 1991 President Barre administration was overthrown by opposing clans and militants. But they failed to agree on a replacement and plunged the country into lawlessness and clan warfare till 2004. The overthrown of the government in January 1991 triggered violent upheavals followed by a prolonged period of anarchy and warfare.
In 1988, civil war in the northern part of the country (called now Somaliland) broke out, and which ended up announcing its secession from the unity of Somalia and declared independence the same year. Currently, Somaliland is impressively successful in shaping its political stability, functioning institutions, regional administration and has enjoyed relative political stability and security. But the declared independence and secession is not recognized either by the Somalia government and international community.
In south Central Somalia, clan-based militia competing for control of resources and engaging in looting and other forms of criminal activities let to a catastrophic famine from 1991 to 1993.
Most of Somalia’s armed clashes since 1991 to late 2004 have been fought in the name of clan, as source of conflict, used to divide communities and fuel endemic clashes over resources and power, often as a result of political leaders manipulating clannism for their own purposes.
In 2004, the establishment of the Transitional Federal Government helped provide a framework for growth and development of functioning institutions, leading the way for state-building in Somalia. In 2012, the Federal Government of Somalia was formed making the end of the interim mandate of the Transitional Federal Government. A provisional constitution was adopted in August 2012.
As suggested by some studies, the root causes of Somalia conflict were competition for resources and/or power, a repressive state and the colonial legacy, denial of rights, politicized clan identity, the availability of weapons and the large numbers of unemployed youth.
In 2005, while Transitional Federal Government (TFG) was slowly improving to establish public institutions, the rise of religious group begin to resist and oppose to the government. The Supreme Council of Islamic Courts (SCIC) also knows as the Islamic Courts Union (ICU), a cluster based on fundamental Islamic Law that is attempting to wrest formal administrative and governmental control from the TFG as well as impose a system of Shari ’a law upon the country. They seek to bring order of some sense to the chaotic region, thus ending the long period of disorder since 1991.
A more radical faction of the SCIC has emerged Al-Shabaab (AS) throughout 2007 and early 2008. These had been interracially attributed Al Qaeda. This group continues to commit gross abuses and violations of human rights in Somalia which in turn worsen the situation in Somalia and creates a conductive hub for other groups to mobiles and get involved in the conflict.

Human Rights and Humanitarian Situation in Somalia

Human rights and humanitarian situation in Somalia has been extremely poor condition. As indicated by all reports from independent human rights organizations, United Nations publications, the situation is characterized by constant violence and frequent attacks on civilians and humanitarian works. These attacks, abuse and violations include torture or inhuman treatment, taking of hostages, using civilians as shield, unlawful imprisonment, deprivation of physical liberty, denied humanitarian agencies willing to help most vulnerable individuals and those in need, threats and attacks against humanitarian personnel and those working with United Nations and other international non-governmental organizations with the mandate of humanitarian assistance, arbitrary deprivation of life.
Humanitarian and human right organization estimated during the war in December 2006 that, between 1,000 and 1,500 persons was killed on each side (government and non-State armed groups). There were a number of humanitarian and human rights violations during the war and both sides committed these violations. Summary executions might have taken place.
Prisons and detention center conations remained harsh and life threating trough the county, with limited medical care and sanitation.
Physical conditions of the prisoners and detainees including children or juvenile, authorizes frequently held juveniles with adults and female prisoners, remain harsh and not in accordance with minimum standard, with poor of sanitation and health care.
As widely reported by United Nations human rights experts, tuberculosis and pneumonia spread in the Prisoners and detainees and in many cases, they rely on their families, clans and humanitarian agencies. Tuberculosis and pneumonia were reportedly widespread. Prisoners relied on their families and clans, which often paid the costs associated with detention. Authorizes lacks necessary resources to support prisoner’s needs.
Territories and populations controlled by Al-Shabaab are the worst. No statistics are available in the detention centers in areas under Al-Shabaab control, but human rights observers and defenders estimate thousands detained in inhuman conditions for relatively minor offenses or just suspicious allegation, or some cases individuals and groups against their ideology.
Minority populations are the mostly affected and victims of human rights violations. Furthermore, most of populations who do not enjoy strong clan protection because he or she is from minority group have to keep a low profile, and they face constant abuse and violations in terms of their social, economic, civil and political rights. Their political participation is very much limited.
Since the country lacked a strong central government, there is limited functioning independent judicial system. Individuals are arrested and sentenced without proper fair trial and due process. Furthermore, the conditions of detained centers and prisons are very low.
As reported by United Nations Security Council in April 2007 that “ Long-term economic, social and cultural right violations, including widespread impoverishment of the population, are compounded by serious civil and political rights violations perpetrated by all parties, which have created an alarming human rights situation. Civilians constitute to be exposed to indiscriminate violence, in particular in south-central Somalia. In the absence of law and order, they are often caught in the crossfire and are subject to forced displacement”.
Furthermore, freedom of expression and opinion and threats to the media and journalists remain issues of serious concern, which led many journalist fled the country to save their lives.
Land and property rights are also most issues of concern, there is many cases of unresolved land issue that leads clan-based and individual conflicts.
Discrimination and abuse of marginalized and most needed groups or minorities exist with regard to their economic, civil and political rights. Sexual abuse and exploitation of women and the recruitment of children in to armed groups are widespread phenomena that reported all human rights organizations.
This is happening because the absence of mechanism and system for human rights and humanitarian protection. Non-state human rights defenders and organization continue to operate in a context of insecurity and constant fear.
Recent Political Development in Somalia

Somalia is at a “turning point” in terms of positive political, social and security developments as well as political resolution and stability of the prolonged conflict and protracted crisis in the county. However, the situation remains extremely fragile.
The country has just completed a long and much-delayed electoral process to create a new parliament and elect a new president and the cabinet. On 8 February 2017, President Mohamed Abdullahi Mohamed was elected the country’s new president for next four years.
With same day of his election, the power was transferred to the new president and inauguration took place on 22 February. During his campaign, he promised to renew the fight against extremist armed groups (Al-Shabaab), corruption and put forward plans to rebuild and enhance government institution including security and financial sector.
Elections took place with extreme environment, that security was most of concern. Al-Shabaab tried to prevent electoral process take place, they continued to launch regular attacks against the Somalia security forces, government officials, journalists and humanitarian workers while the electoral process was taking place. Reportedly, a suicide bombing attack on a Mogadishu hotel in January killed at least 28 people and dozens wounded.
The new admiration is facing multiple and urgent challenges; severe drought that is affecting almost all territories and population in the country, more specially, country sides and consolidating the country’s emergency federal system. Moreover, one more pressing challenge is that, how he convinces Somaliland administration (a self-proclaimed secession territory) to reopen talks that several times postponed. As claimed, the Somaliland administration was no part the recent electoral process that took place in Mogadishu.
Provisional Constitution of Somalia: The Provisional Federal Constitution of Somalia is comprised of 15 chapters and 143 articles. Where chapter 5 and 12 contains the principle of federalism, chapter 6 to 9 embodies the separation of powers and chapter 10 introduces the independent commissions, chapter 2 encompasses the bill of rights, while the procedure for amending the constitution is prescribed in chapter 15.
Current provisional federal constitution contains many positive human rights provision, under the chapter two of the constitution, with framework of “fundamental rights and the duties of citizen”.
The Provisional Constitution under Chapter two, article 12(2) “the fundamental rights and freedoms”, blind all state institutions in the making and application of the laws of the country and they must be respected by all state institution, state officials, private organizations and individuals. And the state has the duty to protect the fundamental rights and freedoms of any person at all times in accordance with the article 12(2).
The Provisional Constitution of Somalia is the supreme law of the country. It offers the legal basis for the being of the new Federal Republic and the foundation of bill of rights.
In August, 2012, a National Constitutional Assembly in Mogadishu approved the draft Provisional Constitution, acknowledges a government parliamentarian system with the President as the head of State and elected Prime Minister as the government head. The Provisional Constitution still waits referendum in public to become permanent legal constitution of the country.
The existence and the value of fundamental rights and freedoms is, therefore, constitutionally guaranteed, and will be of great significance, as they will form the very foundation of the new Federal Republic of Somalia.
The Provisional Constitution of Somalia promotes human rights, the rule of law, general standards of international law, justice, customary international law.
The new Provisional Constitution also stipulates how these fundamental rights are protected and fulfilled.
“The protection of fundamental fights and the fulfillment of duties will ultimately be ensured by the courts, which have the responsibility to hold all government officials and citizens to account in accordance with article 39(1) of the constitution. In accordance with article 39(2), The State is obliged to provide available court which the people can readily access. Furthermore, the courts, when interpreting the fundamental rights, in accordance with article 40(1), have to take an approach that seeks to achieve the purposes of the rights and the values that underlie them. Moreover, according to article 40(3), when interpreting and applying the law generally, the court must ensure their decisions comply with the fundamental rights as far as possible.
Despite the fact that, the Provisional Federal Constitution contains many positive human rights and humanitarian provisions, including specific reference the respect to international law, international customary law, general principles of law and standards, international human rights and humanitarian treaties ratified by Somalia, the implementation of these provisions is, however, severely lacking.
This is due to; absence of clear and harmony legal framework, the government institutions, including the judicial organ remain weak, and has minimal capacity for law enforcement and protection of humanitarian and human rights law.
Nevertheless, the Provisional Federal Constitution is one step forward and will be an important legal foundation with strong provisions for the protection of humanitarian and human rights law.

CHAPTER II.
INTERNATIONAL LEGAL INSTRUMENTS APPLICABLE IN SITUATION OF ARMED CONFLICT

In following chapter, it devoted to applicable international human rights and humanitarian law in the situation of armed conflict in general and more specifically for those treaties and conventions Somalia is binding to. The Chapter is divided two patties; international human rights law and international humanitarian law.
Somalia is African Country located in the Horn of the Africa; the official name is “Federal Republic of Somalia or Somalia”.
Like much of African countries, the impact of colonialism left its imprint on Somalia. During the time of colonialism, the European posers “France, Britain and Italy” divided the Somalia nation amongst themselves, partitioning Somalia into five separate parts or “protectorates”. While one portion remained under the control of Kenya, the Ogaden province was given to Ethiopia’s King Menalik by the British Empire. Although British Somaliland and Italian Somaliland were united at independence on 1 July 1960 according to OAU the border after the independences cannot be changed, the French kept Djibouti under colonial administration, and the region did not gain independence until 1977. The effects of this partitioning continue to permeate Somalia society today.
After independent, from 1960-1969, the country was ruled by the first democratically elected government after in 1970 President Barre proclaimed a socialist state after coup, paving the way for close relations with the Union of Soviet Socialist Republics ( USSR).
According to several studies, significant non-international armed conflict was absent during Somalia’s first 17 years of independence (1960-77). The first 10 years of independence were marked by vibrant but corrupted and eventually dysfunctional multiparty democracy. When the military come to power in a coup in 1969, it was initially greeted with broad popular support because of public disenchantment with the clannishness and gridlock that had plagued politics under civilian rule.
In his initial in 1977, President Barre attempted to unite ethnic Somali people under one State, this led to critical weakening of the Government and the military, and as a result, give rise clan-based opposition groups.These groups were violently repressed by President Barre, leading to a full-scale civil war from 1989-1991 and subsequently President Barre regime collapsed.
In 1991 President Barre administration was overthrown by opposing clans and militants. But they failed to agree on a replacement and plunged the country into lawlessness and clan warfare till 2004. The overthrown of the government in January 1991 triggered violent upheavals followed by a prolonged period of anarchy and warfare. In south Central Somalia, clan-based militia competing for control of resources and engaging in looting and other forms of criminal activities let to a catastrophic famine from 1991 to 1993.
Most of Somalia’s armed clashes since 1991 to late 2004 have been fought in the name of clan, as source of conflict, used to divide communities and fuel endemic clashes over resources and power, often as a result of political leaders manipulating clannism for their own purposes.
In 2004, the establishment of the Transitional Federal Government helped provide a framework for growth and development of functioning institutions, leading the way for state-building in Somalia. In 2012, the Federal Government of Somalia was formed making the end of the interim mandate of the Transitional Federal Government. A provisional constitution was adopted in August 2012.
As suggested by some studies, the root causes of Somalia conflict were competition for resources and/or power, a repressive state and the colonial legacy, denial of rights, politicized clan identity, the availability of weapons and the large numbers of unemployed youth.
In 2005, while Transitional Federal Government (TFG) was slowly improving to establish public institutions, the rise of religious group begin to resist and oppose to the government. The Supreme Council of Islamic Courts (SCIC) also knows as the Islamic Courts Union (ICU), a cluster based on fundamental Islamic Law that is attempting to wrest formal administrative and governmental control from the TFG as well as impose a system of Shari ’a law upon the country. They seek to bring order of some sense to the chaotic region, thus ending the long period of disorder since 1991.
A more radical faction of the SCIC has emerged Al-Shabaab (AS) throughout 2007 and early 2008. These had been interracially attributed Al Qaeda. This group continues to commit gross abuses and violations of human rights in Somalia which in turn worsen the situation in Somalia and creates a conductive hub for other groups to mobiles and get involved in the conflict.
This thesis is about human rights situation in Somalia during the armed conflict. To be more specific, the current condition of human rights in Somalia. Human rights are rights inherent to all human beings, whatever nationality belonging to. The main purpose of this thesis is to investigate whether humanitarian and human rights law are violated during and the ongoing the armed conflict between the government of Somalia and African Union Mission in Somalia (AMISOM) on one side and non-governmental actors (including Al-Shabab), bearing in mind that only states can be accountable for human rights violation, while violation of humanitarian law or international criminal law, individuals and groups (e.g. non-governmental actors) are held responsible for their violations.
The thesis will also analyze applicable international legal instruments, considering regional and international human rights mechanisms; find out ways perpetrators of human rights violations be held and accountable for their crimes, and conclude available remedies and reparation for the victims.
The Thesis will be divided in three parties; part one will be devoted to the background of Somalia conflict, actors and impact for civilians. In Part two will be discussed applicable international legal instruments while in situation of armed conflict and lastly the State responsibility to protect human rights and available remedies for the victims of human rights violations.

⦁ International Humanitarian Law

International humanitarian law (IHL), also known as the laws of war and the law of armed conflict, is the legal framework applicable to situations of armed conflict and occupation. IHL is set of rules and principles aimed, for humanitarian reasons, to limit the effects and sufferings from armed conflict. It protects persons who are not part or no longer part in the conflict. Its scope is limited to the situation of armed conflict or declared of war, it does not apply to situations of peace or internal disturbances or tensions.
IHL is part of Public International Law, which is body of norms regulates relations between states.
Treaties and customary international law are the two main sources of IHL rules and regulations. The key IHL treaties include the 1907 Hague Regulations, four Geneva Conventions, and their Additional Protocols.
According to the rules of IHL, there are two types of armed conflicts, namely:
International nature of armed conflicts, opposing two or more States.
National nature of armed conflicts, or non-international (internal) armed conflicts, between government forces and non-state armed groups.
Internal armed conflicts are covered by article 3 common to the Geneva Conventions, by Additional Protocol II to the Conventions adopted in 1977 as well as by customary international law.
The following instruments form the core of modern international humanitarian law:
The Hague Regulations respecting the Laws and Customs of War on Land;
The Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field;
The Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea;
The Geneva Convention (III) relative to the Treatment of Prisoners of War;
The Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War;
The Protocol Additional to the Geneva Conventions and relating to the Protection of Victims of International Armed Conflicts (Protocol I); and
The Protocol Additional to the Geneva Conventions and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II).
International custom is also sources of IHL. A comprehensive study by the International Committee of the Red Cross (ICRC) on IHL and customary law in 2005 indicates that the majority of rules enshrined in treaty law have received widespread acceptance and have had a far-reaching effect on practice. They thus have the force of customary law. Some provisions in The Hague and Geneva Conventions were reflections of existing customary law, whereas others have developed into customary law. They are therefore binding on all states regardless of ratification, and also on armed opposition groups in the case of non-international armed conflict.
Non-international armed conflict (NIAC): Two main legal sources are available when assessing the definition of NIAC; the Common Article 3 to the Geneva Conventions, which applies in the situation of armed conflict not of an international character, and the jurisprudence of the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY); the court has indicated that two factual criteria must be satisfied in order to be classified as a NIAC:
The violence must reach a certain level of intensity that distinguishes it from situations of internal disturbances such as riots and isolated acts of violence;
The parties involved must demonstrate a certain level of organization.
For the first criteria, factors to consider include the nature of the fighting, resort of armed force by the state or parties involved, the duration of the conflict, the nature of the weapons, the frequency of the attack and the numbers of the victims.
For the second criteria, governments forces automatically fulfill the requirement, as for the non-state armed groups, elements to consider include the existence of command structure and organizational rules.

⦁ International Human Rights Law

This branch of the law is referred to international human rights law is defined as the law concerned with the protection of individuals and groups against violations of their internationally guaranteed rights, and with the promotion of these rights.
The foundation documents of international human rights law are The Charter of the United Nationals (1945) and the International Bill of Rights (That includes Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights and their Additional Protocols).
In addition to that, since 1965, international community under the auspices of the United Nations adopted nine international human rights treaties and its nine optional or additional protocols, plus key human rights declarations and resolutions.
The treaties and their optional protocols are ratified or acceded to by States on a voluntary basis; once a State becomes a party to a treaty or an additional protocol, it takes on the legal obligation to implement its provisions and to report periodically to a United Nations “treaty body” composed of independent experts.
The ten Treaty Bodies monitor the implementation of these treaties and optional protocols through two main channels: considering periodic reports on the situation of specific rights in a State party and communications submitted by individuals, with the exception of the Subcommittee on Prevention of Torture. While some treaty bodies have additional responsibilities such as to visit countries and undertake inquiries and urgent intervention in situation of systematic violation of human rights.
In the below, are the list of core human rights treaties which majority of States are parties to them and binding.
The International Covenant on Economic, Social and Cultural Rights and its Optional Protocol; The International Covenant on Civil and Political Rights and its two Optional Protocols; The International Convention on the Elimination of All Forms of Racial Discrimination; The Convention on the Elimination of All Forms of Discrimination against Women and its Optional Protocol; The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol; The Convention on the Rights of the Child and its two Optional Protocols; The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; The International Convention for the Protection of All Persons from Enforced Disappearance; and The Convention on the Rights of Persons with Disabilities and its Optional Protocol.

⦁ Somalia Ratification Status of Key International and Regional Humanitarian and Human Rights Law

The Somali Federal Republic is a member of the United Nations (UN) joined 20th of September, 1960 after Somalia independence, and later joined the African Union (AU) 25th of May, 1963. Since 1963, Somalia has ratified number of UN and AU human rights and humanitarian conventions, and thus has made binding legal commitments laid down in these universal and regional human rights documents.
The following are the international and regional human rights and humanitarian law in which Somalia is State party through signing, accessing, ratification or declarations.
Humanitarian Law: Somalia is State Party to Four Geneva Conventions of 1949; it has ratified all four conventions once in June 1962. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva Convention relative to the Treatment of Prisoners of War and Convention relative to the Protection of Civilian Persons in Time of War. Somalia did not sign, ratify or accede the Additional Protocols to the Four Geneva Conventions, more importantly, Additional Protocol of 1977 relating to the Protection of Victims of Non-International Armed Conflicts.
Human Rights Law: Somalia is State member of small number of human rights treaties. Following are those treaties participated by Somalia: The International Covenant on Economic, Social and Cultural Rights ratified in January 1990; The International Covenant on Civil and Political Rights and its first Optional Protocol established Committee to receive and consider individual and inter-state communications ratified January 1990; The International Convention on the Elimination of All Forms of Racial Discrimination ratified August 1975; The Convention on the Rights of the Child ratified January 2015, and its Optional Protocol on the involvement of children in armed conflict signed 2005; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ratified 1990 and Abolition of Forced Labour Convention (ILO No. 105) ratified December 1961;Convention relating to Status of Refugees accessed October 1978 and the Protocol relating to the Status of Refugees also accessed October 1978.
Regional Instruments: Somali is also State party to regional treaties such as African [Banjul] Charter on Human and Peoples’ Rights ratified June 1985; African Charter on the Rights and Welfare of the Child ratified July 1991; Convention governing the specific Aspects of Refugee Problems in Africa ratified September 1969; African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) signed October 2009.
Somalia made only one reservation or declaration concerning the above mentioned human rights conventions, which Somalia is a State party˗˗the Conventions on the Rights of The Child for the Articles 14, 20 and 21. This reads;
“The Federal Republic of Somalia does not consider itself bound by Articles 14, 20, 21 of the above stated Convention and any other provisions of the Convention contrary to the General Principles of Islamic Sharia”.

Overlap of International Human Rights Law and International Humanitarian Law in Situations of Armed Conflict
Both humanitarian law and human rights law are complementary. They are universal in their application; their purpose is to protect human dignity.
While international humanitarian law only applies during armed conflict, human rights do not cease to be applicable in armed conflicts. Human rights treaties, broadly safeguards the comprehensive aspects of an individual’s physical, political, civil, economic, social and cultural rights.
However, allow states to derogate from certain rights during a public emergency that threatens the nation or a state of war, provided they fulfill certain preconditions and follow specified procedures. Some rights such as rights to life, freedom from torture, freedom of thought, equality and non-discrimination can never be suspended.
Some rights, though, (such as the right to life, freedom from torture, freedom of thought, equality and non-discrimination) can never be derogated.
Apart from IHL’s basic purpose, which is to afford protection to civilians, prisoners, displaced persons, wounded or sick, prisons of war, combatants, health personnel and the regulation of the conduct of hostilities (limit the rights of parties in conflict to use certain means and methods of warfare), it also protects core human rights in times of armed conflict. These protections include the prohibition of slavery, the prohibition of torture and other forms of cruel, inhumane or degrading treatment and the prohibition on the retroactive application of the law. And these rights can never be derogated.
Provisional Constitution of Somalia and Bill of Human Rights: The provisional federal constitution contains many positive human rights provision, under the chapter two of the constitution, with framework of “fundamental rights and the duties of citizen”.
The Provisional Constitution under Chapter two, article 12(2) “the fundamental rights and freedoms”, blind all state institutions in the making and application of the laws of the country and they must be respected by all state institution, state officials, private organizations and individuals. And the state has the duty to protect the fundamental rights and freedoms of any person at all times in accordance with the article 12(2).
The existence and the value of fundamental rights and freedoms is, therefore, constitutionally guaranteed, and will be of great significance, as they will form the very foundation of the new Federal Republic of Somalia.
The Provisional Constitution of Somalia promotes human rights, the rule of law, general standards of international law, justice, customary international law.
The new Provisional Constitution also stipulates how these fundamental rights are protected and fulfilled.
“The protection of fundamental fights and the fulfillment of duties will ultimately be ensured by the courts, which have the responsibility to hold all government officials and citizens to account in accordance with article 39(1) of the constitution. In accordance with article 39(2), The State is obliged to provide available court which the people can readily access. Furthermore, the courts, when interpreting the fundamental rights, in accordance with article 40(1), have to take an approach that seeks to achieve the purposes of the rights and the values that underlie them. Moreover, according to article 40(3), when interpreting and applying the law generally, the court must ensure their decisions comply with the fundamental rights as far as possible.
Despite the fact that, the Provisional Federal Constitution contains many positive human rights and humanitarian provisions, including specific reference the respect to international law, international customary law, general principles of law and standards, international human rights and humanitarian treaties ratified by Somalia, the implementation of these provisions is, however, severely lacking.
This is due to; absence of clear and harmony legal framework, the government institutions, including the judicial organ remain weak, and has minimal capacity for law enforcement and protection of humanitarian and human rights law.
Nevertheless, the Provisional Federal Constitution is one step forward and will be an important legal foundation with strong provisions for the protection of humanitarian and human rights law.

CHAPTER III
SOMALIA STATE RESPONSIBILITY TO ENSURE ACCOUNTABILITY AND REMEDIES

After we examined in the previous chapter, international humanitarian and human rights Law that Somalia is a States party, in which Somalia bears responsible for its violations, this chapter, we will present and analysis whether those parties in the conflict violated their responsibility to respect the obligation held by international human rights and humanitarian law, then we will examine how to held accountable for the parties in their violations or abuse under the established international legal regimes, and remedy and reparation under international law, and lastly, to deeply discuss the concept of “effective control” and state capacity (Somalia Government) to protect its citizens and enforce the law of the country and international legal obligations.

⦁ Actors Involved the Conflict in Somalia

The following section will be discussed actors or parties involve the ongoing and the past armed conflict in Somalia. Then, will be examined to what extent, each party violated or abused the international humanitarian and human rights law while in the conduct of internal armed conflict.
Despite the country is recovering from a prolonged conflict, the human rights situation has continued to be dominated by current and past armed conflict. The most affected are the civilians.
As suggest numerous human rights reports, all parties to the ongoing internal armed conflict, including African Union Mission in Somalia (AMISON), have violated international human rights and humanitarian law.
The main players at this moment to the conflict can be classified in to two folds: internal and external players.
According to international humanitarian law, actors in armed conflict can be classified in to: combatants and non-combatants.
Combatants: The relevant provisions regarding combatant status are stated in Geneva Convention I and II, Articles 13 in the framework of ‘protected persons’, Convention III of Article 4 and Articles 43 of Additional Protocol I.
According to above mentioned rules, combatants are all the members of the armed forces of a party to the conflict (whether States or non-state armed groups), except those are not considered, including medical and religious units.
On the basis of their status, combatants are granted certain legal status for protection against punishment in the participation of hostilities when they are captured as prisons of war.
Military objectives were also defined in Article 52 of Additional Protocol I and Rule 8 ICRC Customary International Humanitarian Law Study of 2005, it is formulated as following:
“Military objectives are those objects which “by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”.
Non- Combatants: according to Hague and Geneva regulations, Non-combatants are those who are not involved in the armed conflict. They are the civilians accompanying the armed forces, such as prisons of war, the wounded and sick armed personnel, medical personnel and civilians.
In accordance with article 51(3) of the First Additional Protocol to the 1949 Geneva Conventions stipulates the protections and status provided to civilians with conditions and reads as following: “Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities”.
The Actors: The actors or parties involved in the conflict can be broadly divided in to three parties; internal, regional and international.
The internal players: these players are composed; clan militants, warlords, Islamic insurgents groups that survived different times and places.
To begin with Al-Shabaab, an Islamist insurgent group Al-Shabaab (AS) which by name Shabaab means (“The Youth” in Arabic.) It emerged as the radical youth wing of Somalia’s now-defunct Union of Islamic Courts, which controlled Mogadishu in 2006, before being forced out by Ethiopian forces. Currently it controls large area of south central Somalia.
The militant group Al-Shabaab constitutes a long-term threat to achieving sustainable peace in Somalia and constitutes major abuses, with no respect to basic humanitarian rules and human rights law.
Other internal players include clan militias that receive commands and orders from warlords and businessmen or in some cases clan leaders. Between 1990s-2006, the time when warlords were effective in south-central Somalia, they have committed gross violations of human rights against civilians and they provide no respect to law and order. Indiscriminate attacks were usual in places under population in Mogadishu.
International law recognizes States as the contracting parties or subjects under international arena; and thus, is under obligation to respect their responsibility to abide international humanitarian and human rights law.
Nevertheless, Security Council demanded parties in conflict, whether States or non-State actors (including armed groups and terrorist groups), to comply with the obligations applicable to them under international humanitarian, human rights and refugee law, and also adhere and implement decisions of the Security Council and urged them to take all required measures to respect and protect the civilian population.
His mission to Sri Lanka, Philip Alston, and The Special Rapporteur on extrajudicial, summary or arbitrary executions stated that, “As a non-State actor, the Liberation Tigers of Tamil Ealam (LTTE) does not have legal obligations under International Covenant on Civil and Political Rights (ICCPR), but it remains subject to the demand of the international community, first expressed in the Universal Declaration of Human Rights, that every organ of society respect and promote human rights”.
Furthermore, he added in his report: “[T]he LTTE, it is an organization with effective control over a significant stretch of territory, engaged in civil planning and administration, maintain its own form of police force and judiciary,(…) the international community does have human rights expectations to which it will hold the LTE.
Al-Shabaab fulfills that requirement, it is an organized armed groups with command structure, have an effective control over large part of territory and population, and have necessary organs such as police and judiciary.
Population under Al-Shabaab control has suffered serious abuses including arbitrary justice, and harsh restriction on basic human rights. As stated in his report in 2016.
The independent expert of human rights situation in Somalia stated that, Al-Shabaab gives no respect to basic international humanitarian and human rights law. Abuses committed by Al-Shabaab included indiscriminate attacks; attacks against civilians and civilian objects, the use of suicide bombers and improvised explosive devices against civilian targets.
Other Human rights violations include displacement of persons, restriction and denial on humanitarian aid, rape, recruitment and use of child soldiers, unlawful killings; extra judicial execution and torture. Various treaties including the Geneva Convention and the international core human rights treaties forbid the indiscriminate use of force against civilians. Denial of basic rights and freedoms has been implemented by AS in parts under their control, restricting rights of freedom of movement and assembly.
Some reports suggest that autonomous groups (armed criminal groups, clan-based groups) and in some cases government security forces, have proliferated in the context of deterioration security environment and weak government defense forces. These groups struggle to control territories and interests, and frequently clash with one other or in some situations with local inhabitants.
The Regional Actors: These regional actors are engaged to the conflict with different interests; some are mandated with the approval of the United Nations to combat and reduce threats posted by Al-Shabaab and to support government security sector. These actors are African Union Mission in Somalia (AMISOM), and as of the time of the thesis writing, the participating countries are; Kenya, Ethiopia, Djibouti, Uganda and Burundi.
AMISOM is an active, regional peacekeeping mission operated by the African Union (AU), created by the AU Security Council on 19th January 2007 with initial six month mandate.
While AMISOM troops are mandated by UN Security Council, to support the security forces of the Federal Government of Somalia to combat the threat posed by AS and other armed opposition groups, to conduct Peace Support Operation in Somalia to stabilize the situation in the country in order to create conditions for the conduct of humanitarian activities, and to continue to conduct offensive operations against AS, there are number of accusation against AMISOM; committing indiscriminate attack against civilians by violation of international human rights law and humanitarian law.
Ethiopian Military Intervention: In 2006 the Transitional Federal Government was under threat posed by Islamic militants (SCIC/ICU) that fully controls the Capital Mogadishu, with request of Transitional Federal Government of Somalia, Ethiopia responded to send estimated 30,000-40,000 Ethiopian soldiers to take part to the operation in 2007 and 2008.
Sexual Violence: As indicated in the report of the Independent Expert on the situation of human rights in Somalia 2015, perpetrators of rape and sexual violence are unidentified armed men; some reports indicate Somalia National Armey, clan militia as well as Al-Shabaab. Sexual violence is wide spread in Somalia. The most victims are minorities, displaced women and girls.
Separate report indicate that perpetrator of sexual violence are also alleged to be military personnel from African Union Mission for Somalia.
International actors or players: The lack of central government in Somalia and armed conflicts caused severe humanitarian conditions, displacement of thousands of civilians, and a security threat to its neighboring countries resulted number of international interventions, these interventions worsened the humanitarian and political development in Somalia as suggested by Afyare and Elmi.
United Nations Operation in Somalia (UNOSOM) and Unified Task Force (UNITAF) Intervention: In 1992 United Nations Security Council adopted a resolution creating of UNOSOM); the first mission was to provide humanitarian relief and help restore order in Somalia after the dissolution of its central government. Later in December 1992, after situation worsened, the Security Council further authorized Member States to form the Unified Task Force.
The mission was carried out under the name of the United Nations and was called UNOSOM, with mandate to help create a secure environment for the delivery of humanitarian aid in Somalia. Majority of Somalis and militants at the time in Mogadishu responded and resisted the existence of foreign troops in Somalia in an aggressively manner. The mission lasted for less than a year and result was the death of many people.
Impact and Consequences: In this section, we will present the impact and the consequence of the prolonged internal armed conflict in Somalia in general and specific to the civilians.
General speaking, war is problematic issue, war kills, and its consequences extends far beyond deaths in battle. Internal armed conflict often leads to forced migration, long-term refugee problems, and the destruction of infrastructure. Political, social and economic institutions can be permanently damaged, and this is exactly the situation in Somalia after prolonged internal conflict and anarchy.
After more than two decades of protracted internal armed conflict, human rights violation and natural disasters, millions of civilians have displaced. According to United Nations High Commissioner for Refugees (UNHCR) report in July 2014, 1.13 million Somalis were internally displaced and 1.12 million refugees and asylum-seekers originating from Somalia. While an estimated 900,000 Somali refugees are in neighboring countries, such as Kenya and Ethiopia.
Figures from United Nations Office for the Coordination of Humanitarian Affairs (OCHA) revealed that, in 2014 as part of military offensive against AS posed by government forces and AMISOM, more than 80,000 civilians were displaced from their homes.
During the period of fights between Transitional Federal Government of Somalia (TFG) with the support of Ethiopia military against SCIC/ICU militants in 2006-2007, an estimated 65,000-70.000 people were displaced due to the conflict.Other sources suggest that during the same conflict 2007, an estimated 6,501civilian in Mogadishu were killed and 8,516 wounded.
Special groups that mostly affected the conflict: According to Human Rights Watch, women in internally displaced in Somalia are suffering sexual violence in the form of gang rape and other forms of abuse in Mogadishu’s refugee camps. The abuse takes place in the hands of armed groups, including government forces. This is happening because women remain a minority of combatants and perpetrators of war, and they increasingly suffer the greatest harm. The safety, protection and welfare of vulnerable groups who remains in areas affected by armed conflict, particularly women, children, women-headed households, elderly people, people with disabilities, and members of minority ethnic are most affected and are of grave concern.
Children: Children continue to be killed or maimed as result of indiscriminate shelling, gunfire, widespread of insecurity, and the targeting of schools.Children are the most affected groups by the current and past conflict in Somalia. The Al-Shabaab’s recruitment of children has been widely reported.
Destruction of government institution and infrastructure: Public institutions in Somalia were destroyed for more than two decades. Due to the conflict, infrastructure, such as inter-city roods, links to productivity centers, basic airports and port facilities has been seriously damaged.
The current situation in Somalia is constantly considered as fragile State with absence of strong, stable and functional government. Since 1991, after collapse of central strong government, due to distrust among them, multiple regional states constituted as separate states, including Somaliland, a “self-declared republic” with no formal recognition from else were. Other eastern Somali communities built their own administrations within Somalia. Lately, two southern Somali communities declared their quasi-autonomous status within Somalia. All the emerged states are based on a single clan. This negatively affected the unity of the country and prober functions of public institution and state building process.

⦁ Accountability under International Humanitarian and Human Rights Law

As we discussed in the first part of this chapter, we have noted that all actors involved in the conflict committed some degree of violations of their obligations with regard to human rights standard and humanitarian law. The following part will be devoted to the accountability under international humanitarian law and international human rights standards.
Under international law, human rights standards are presumed to apply only to national states, as states are international subject, as the dominant actors in the global arena and politics, and are those who conclude the treaties and international regulations.
States are presumed duty bearers, and withprimary responsibility for protecting and fulfilling international human rights norms. While under international humanitarian law, all parties in conflict, states and non-state armed groups are presumed duty bearers, with the full realization and responsibility to fulfill the humanitarian norms and customary rules.
When it comes to international humanitarian law, there is no doubt that all parties in conflict are accountable to international humanitarian law, but it essential to emphasize, to what extent are non-state armed groups accountable for upholding international human rights standards. This is very important, giving in to the consideration of the case of Somalia, where non-state armed groups (like militants of Al-Shabaab) are the most who committed gross violations and abuses of human rights in the area of their effective control and weak capacity of the state.
It is clear the position of States as the protector of humanitarian and human rights law, but the confusion arise when we talk about not-state armed groups including armed groups. Taking in to account the reports of human rights practitioners, these groups (nan-state armed groups) commit torture, disappearance, assassinations. Thus, not only States violate humanitarian and human rights law, but also non-State actors. And be held accountable too.
Accountability: is the foundation of humanitarian and human rights protection system. It is essential system of norms, rules, procedures and practices that govern, first the relationship between the States and second between States and individuals.
General speaking, accountability requires public officials and institution to provide reasoned justifications for their actions and decisions to those they affect, including the public at large, voters who invest public officials with authority and institutions mandated to provide oversight.
Human rights standards set out the rights and freedoms, to which all are entitled by virtue of being human and corresponding duties of those who exercise authority or forms of power.
Accountability from a human perspective refers to the relationship of government policymakers and other duty bearers to the rights holders affected by their decisions and actions.
Duty Bearers: International human rights law and international humanitarian law have that regulate different types of subjects and timeframe. International humanitarian law is applicable in times of armed conflict while international human rights law applies all times (peace and war).
During the armed conflict, both branches of law provide specific protection of persons and of specific groups of persons who are considered to be more exposed to the risk of violations. Despite their differences, both bodies of law are increasingly understood as imposing obligations on both State and non-State actors.
Legal rules derived from both laws (international humanitarian and human right law) addresses to both groups: duty bearers and rights holders.
The Duty bearers have obligations (like States and its affiliated organs), which can be positive; an obligation to do something, or negative; an obligation to refrain from doing something.
In international human rights and humanitarian law, duty bearers are bound to respect a series of positive and negative obligations. Those obligations may differ, depending on whether international law recognize a particular actor as a primary subject of international law (e.g States and international organizations) or as a secondary subject (e.g non-State actors).
States: the responsibility of States to uphold and implement international human rights and humanitarian law is not in doubt. International law recognizes that in general States, together with international organizations, are the primary subjects of international law.
They acquire legal obligations by entering into international treaties and also have legal obligations deriving from customary international law.
Thus, subject to lawful reservations as prescribed by a law, States that have ratified international humanitarian law or human rights treaties are bound by their provisions. Moreover, according to the Vienna Convention on the Law of Treaties, States that have signed but not ratified a treaty are bound to act in good faith and not to defeat its object and purpose.
Above said rules and regulations, and that, both international humanitarian and human rights law apply in armed conflict, aim to protect human life prohibit torture or cruel treatment, prescribe basic rights for persons subject to a criminal justice process, prohibit discrimination, comprise provisions for the protection of women and children, regulate aspects of the right to food and health.
Distinctions between in the application of international human rights law and of humanitarian law do exist. The main difference in their application is that international human rights law allows a State to suspend a number of human rights if it faces a situation of emergence. While international humanitarian law cannot be suspended, except article 5 of to the Fourth Geneva Convention.
Furthermore, the conduct of hostilities, combatant and prisoner of war status and the protection of the red crescent emblems and exclusive to international humanitarian law.
International humanitarian law is addressed to States parties and in certain conditions to non-State actors. And thus, States have legal duty to respect and implement both international humanitarian law and human rights law.
The Geneva Conventions, and international humanitarian rules, impose obligations on States and their armed forces to abide the rules and implement accordingly. Further imposes on States the obligations to respect its rules and to protect civilians and other protected persons and property.
In accordance with some academic publications, General Comment No. 12 of ICCPR “the right to adequate food” of 1999, on the implementation and explanation of the covenant and the rights and obligations contained the committee states that, there three are three obligations expected from the States-parties:
The obligation to respect: that States must refrain from interfering with or restricting the enjoyment of human rights.
The obligation to protect requires: that States should protect individuals and groups against human rights abuses whether from public or private actors.
The obligation to ensure or fulfill: that States must take positive action to facilitate the enjoyment of basic human rights.
Therefore, State is responsible for ensuring that rights and obligations are carried out in full conformity and compliance with its international obligations, particularly human rights and humanitarian law.
Finally, as the States are the primary subject of international law, the State’s obligations under international human rights and humanitarian law include the duties to investigate alleged violations of international human rights and humanitarian law, and to prosecute and punish those responsible.
Non-State Armed Groups: as elaborated some humanitarian law papers and leading researchers of the field:
“non-state actors armed groups are defined as distinctive organization that are (a) willing and capable to use violence for pursuing their objectives and (b) nor integrated into formalized state institutions such as regular armies, presidential guards, police, or special forces. They, therefore, possess a certain degree of autonomy with regard to politics, military operations, resources, and infrastructure”.
International criminal law recognize that individuals are held responsible at the domestic or international level for gross human rights violations and serious violation of international humanitarian law which amount to crimes against humanity, war crimes, genocide, and torture.
Security Council demanded parties in conflict, whether States or non-State actors (including armed groups and terrorist groups), to comply with the obligations applicable to them under international humanitarian, human rights and refugee law, and also adhere and implement decisions of the Security Council and urged them to take all required measures to respect and protect the civilian population.
His mission to Sri Lanka, Philip Alston, The Special Rapporteur on extrajudicial, summary or arbitrary executions stated that, “As a non-State actor, the LTTE does not have legal obligations under ICCPR, but it remains subject to the demand of the international community, first expressed in the Universal Declaration of Human Rights, that every organ of society respect and promote human rights”.
Furthermore, he added in his report: “[T]he LTTE, it is an organization with effective control over a significant stretch of territory, engaged in civil planning and administration, maintain its own form of police force and judiciary,(…) the international community does have human rights expectations to which it will hold the LTE.
Therefore, it is clear that the application of human rights standards to non-State armed groups is particularly relevant in situations where they exercise some degree of control over a given territory and population. In this background, Al-Shabaab controls large part of territory and population, therefore, they should be held accountable not only international humanitarian law, but also international human rights law.
State and its organs responsibility for violations international human rights and humanitarian law: State responsibility for violation of international law has long been center and foundation of international law. State responsibility is guided by the principle of “pactasuntservanda” which means that very treaty in force is biding upon the parties to it and must be performed by the in good faith.
State responsibility is and age-old principle of international law that was developed to protect the right of aliens. It arises when a state commits an international wrong against another state. It involves and obligation to make reparation for any breach of an engagement.
Even beyond treaty obligations, the International Law Commission’s draft articles on State responsibility recall the general principle of international law that the breach of a State’s international obligation constitutes an international wrongful act, which entails the international responsibility of that State. According to this obligation expected from the State, Somali Government is responsible for violations of international human rights and humanitarian law in the context of the armed conflict relevant to:
Violations committed by its organs, departments, or its armed forces,
Violations committed by persons or entities empowered, delegated to exercise the government authority,
Violations committed by persons or groups acting in fact on its instructions, or under its direction or control,
Violations committed by private persons or groups which it acknowledges and adopts as its own conduct.
Under international law, State is also be responsible for lack of due diligence if it has failed to prevent or punish violations of international human rights and humanitarian law committed by not only State organs, persons associated, but also private actors including armed groups like Al-Shabaab militia.
Case Law: In Bosnia and Herzegovina v Serbia and Montenegro, the International Court of Justice found that Serbia had violated its obligation to prevent and prosecute acts of genocide. The Court decided that Serbia had to “take effective steps to ensure full compliance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide […] and to transfer individuals accused of genocide or any of those other acts for trial by the International Criminal Tribunal for the former Yugoslavia, and to cooperate fully with that Tribunal.
Serious Crimes according to International humanitarian and human rights law: as we all know, every civilized State and are members of the United Nations has its own domestic law (criminal law), which the violations of humanitarian and human rights law considers under its jurisdiction as crime. Under certain condition, it can also consider international crime, and thus, may be prosecuted not only domestically but also internationally, and may be tried by an international criminal tribunal. These crimes are listed in the Rome Statue of International Criminal Court, and are as following: Genocide, crimes against humanity and war crimes.
According to that Roma Statue, certain gross or serious violations of international human rights and humanitarian law have been considered of such gravity by the international community that they have been regulated under international criminal law.
A country like Somalia where armed conflict were involved different groups and individuals, it necessary for establishing individual or groups criminal responsibility for their acts, abuses and violations of domestic law and international human rights and humanitarian law. Under international criminal law, individual criminal responsibility is fundamental to ensuring accountability for violations of international human rights and humanitarian law.
As we discussed above, The Rome Statue of the International Criminal Court provides the detailed and most comprehensive definition of relevant and serious crimes, which committing of such crimes is violations of international human rights and humanitarian law.
Those crimes are as following in accordance with the Roma Statue:
Genocide: article 6 stipulates: “for the purpose of this Statue ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group”.
War crimes: article 8 states that “war crimes” means: (a) grave breaches of the Geneva Conventions of 12 August 1949; (b) other serious violations of the laws and customs applicable in international armed conflict; and (c) in the case of armed conflict not of an international character, serious violations of common article 3 and other serious violations of the laws and customs applicable in such as conflict. As article 8 of Rome Statue listed, following are the list of acts identified: willful killing, torture or inhuman treatment, willfully causing great suffering, or serious injury to body or health, unlawful deportation or transfer or unlawful confinement; taking of hostages, declaring that no quarter will be given; using civilians as shields.
Crimes against humanity: Article 7 specifies that, “for the purpose of this Statue, ‘crime against humanity’ means any of the following acts when is committed as part of widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) murder, (b) extermination, (c) enslavement, (d) deportation or forcible transfer of population, (e) imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, (f) torture, (g) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity, (h) persecution any identifiable group or collectively on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the court, (i) enforced disappearance of persons, (j) the crime of apartheid, (k) other inhumane acts of a similar character internationally causing great suffering, or serious injury to body or to mental or physical health.
Actors involved Somali conflict, whether during civil war from 1991 to 96, or the current ongoing armed conflict between Al-Shabaab militia against Somali Government and its AMISOM, committed or violated whole or part of the above listed definition of international crimes. More specifically, for the ongoing armed conflict between Government and Al-Shabaab, the later were accused violating almost crimes against humanity and war crimes; by committing torture or inhuman treatment, taking of hostages, using civilians as shield, unlawful imprisonment, deprivation of physical liberty, persecution or assassination against any individuals or groups or collectively political or ideological differences.
According to the report of the Independent Expert on the Situation of Human Rights in Somalia, Al-Shabaab has also denied humanitarian agencies willing to help most vulnerable individuals and those in need. In addition to that, Al-Shalbaab also maintains threats and attacks against humanitarian personnel and those working with United Nations and other international non-governmental organizations with the mandate of humanitarian assistance. According to the same report, attacks and threats against humanitarian personnel have increased and 60 incidents (deaths, injuries, abduction, and detentions) involving humanitarians were recorded in the first five months of 2015.
Therefore, it is the under obligation for the current Somali Government to seek accountability as explicitly referred or stated to the international humanitarian and human rights law, which most of them Somalia is a States-parties.
The International Covenant on Civil and Political Rights, the Convention against Torture, the International Convention for the Protection of All Person from Enforced Disappearance, and the Option Protocols to the Convention on the Rights of the Child on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography impose a general obligation on all States parties to provide an effective remedy for violations of the rights and freedoms contained in these treaties, including a duty to investigate and punish those responsible.
In a country like Somalia, where impunity is widespread phenomena, State has the obligation to combat impunity and lack of accountability. Therefore, it is an obligation to undertake prompt, though, independent and impartial investigations of violations of human rights and international humanitarian law and take appropriate measures in respect of the perpetrators, particularly in the area of criminal law or justice by ensuring not only improving the current situation of criminal justice system, but also those responsible for serious crime under international law are prosecuted, tried through due process and duly punished.
Additionally, in accordance with General Comment No.6 adopted the Commission on Human Rights, and resolutions adopted by the General Assembly, the reports of United Nations special procedures and the jurisprudence of human rights treaty bodies have all consistently affirmed that States have a duty to investigate and prosecute violations of international human rights and humanitarian law.
Furthermore, the Basic Principles and Guidelines on the Rights to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law provide that “in cases of gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, States have the duty to investigate and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him.

⦁ Remedies and Reparations under International law

As we have discussed in the previous part, we have noted that during and the ongoing armed conflict in Somalia and the territories and populations controlled by non-State armed groups, ordinary civilians continue to affect their basic human rights and in certain occasions, gross violation of human rights. The following part will be addressed remedy and reparations as a concept and practice under international law, and analyzing the existing human right instruments and best practices of United Nations Treaty Bodies materials, and United Nations guidelines to provide remedies and reparation for the victims of those affected individuals and groups under human rights and humanitarian standards.
According to the Basic Principles and Guidelines on the Rights to a Remedy and reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, victims are “persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violation of international humanitarian law. Where appropriate, and in accordance with domestic law, the term ‘victim’ also includes the immediate family or dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization”.
The Basic Principles and Guidelines make clear that victims’ rights under international human rights law and international humanitarian law includean obligation on States to prevent violations from occurring and to investigate them when they do.
The Basic Principles and Guidelines further state that “obligation to respect, ensure respect for and implement international human rights law and humanitarian law was provided for under the respective bodies of law, includes, inter alia, the duty to: take appropriate legislative and administrative and other appropriate measures to prevent violations, investigate violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with domestic and international law, provide those who claim to be victims of human rights or humanitarian law violations with equal and effective access to justice irrespective of who may ultimately be the bearer of responsibility for the violation, and provide effective remedies to victims, including reparation.
The international human rights conventions or treaties have various measures, procedures and mechanisms aimed at ensuring effective remedies, redress and reparation for persons whose human rights have been violated.
These conventions include, International Covenant on Civil and Political Rights (ICCPR), and Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

Article 2, paragraph 3 of ICCPR stipulates that:
“Each State Party to the present Convention undertakes:
(a)To ensure that any person whose rights of freedom as herein recognized is violated shall have an effective remedy […].
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
The Human Rights Committee further interpreted the content, meaning and scope of article 2 of the covenant (ICCPR). Under their General Comment No. 30 adopted in 2004 explained in detail and as following:
“Article 2, paragraph 3, requires that in addition to effective protection of Covenant rights States Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights. Such remedies should be appropriately adopted so as to take account of the special vulnerability of certain categories of person, including in particular children. The Committed attaches importance to States Parties’ establishing appropriate judicial and administrative mechanisms for addressing claims of rights violation under domestic law. The Committee notes that the enjoyment of the rights recognized under the Covenant can be effectively assured by the judiciary in many different ways, including direct applicability of the Covenant, application of comparable constitutional or other provisions of law, or the interpretive effect of the Covenant in the application of national law. Administrative mechanisms are particularly required to give effect to the general obligation to investigate allegation of violations promptly, thoroughly and effectively through independent and impartial bodies. National human right institutions, endowed with appropriate powers, can contribute to this end. A failure by a State Party to investigate allegation of violation could in and of itself give rise to a separate breach of the Covenant. Cessation of an ongoing violation is an essential element of the right to an effective remedy”.
Furthermore, The Committee against Torture for the monitoring the prevention of torture and other cruel, inhuman or degrading treatment or punished had also explained and clarified the content and meaning of “redress” contained in Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and further interpreted the whole meaning and scope of the Article 12.
In the General Comment No. 3 of 2012, the Committee stated that:
“This general comment explains and clarifies to States Parties the content and scope of the obligations under article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Each State Party is required to ‘ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.’ The Committee considers that article 14 is applicable to all victims of torture and acts of cruel, inhuman or degrading treatment or punishment without discrimination of any kind, in line with the Committee’s General Comment No.2.
The Committee considers that the term ‘redress’ in article 14 encompasses the concept of ‘effective remedy’ and ‘reparation’. The comprehensive reparative concept therefore entails restitution, compensation, rehabilitation, satisfaction and guarantees of non-reparation and refers to the full scope of measures required to redress violations under the Convention.
The obligation of States Parties to provide redress under Article 14 is two-fold: procedural and substantive. To satisfy their procedural obligation, States Parties shall enact legislation and establish complains mechanisms, investigation bodies and institution, including independent judicial bodies, capable of determining the right to and awarding redress for a victim of torture and ill-treatment, and ensure that such mechanisms and bodies are effective and accessible to all victims. At the substantive level, States Parties shall ensure that victims of torture or ill-treatment obtain full and effective redress and reparation, including compensation and the means for as full rehabilitation as possible.
In accordance with above discussed materials, well-established United Nations Treaty Bodies publication, as well as United Nations Basic Principle sand Guidelines, victims of gross violations of human rights have to following rights:
Victims should be treated with humanity and respect for their dignity and human rights, and appropriate measures should be taken to ensure their safety, physical and psychological well-being and privacy, as well as those of their families.
Victims shall have access to justice, adequate, effective and prompt reparation for harm suffered, access to relevant information concerning violations and reparation mechanisms.
Moreover, a victim of a gross violation international human rights law or serious violation of international humanitarian law shall have equal access to an effective judicial remedy as provided for under international law, as well as access to administrative and other bodies.
Victims shall also receive reparation, which should be proportional to the gravity of the violations and the harm suffered. Effective reparation can take the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identify, family life and citizenship, return to one’s place of residence, restoration of employment and return of property.
Finally, victims shall have adequate access to relevant information concerning violations and reparation mechanisms.
Furthermore, number of international human rights treaties which Somalia is States parties provide a rights to a remedy for victims of violations, including the International Covenant in Civil and Political Rights (art. 2), the International Convention on the Elimination of All Forms of Racial Discrimination (art. 6), the Convention against Torture (art. 14), and the Convention on the Rights of the Child (art.39).
The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, focusing on crimes under domestic law, but also on abuses of power, which include violation of international human rights and humanitarian law, the African Charter on Human and Peoples’ Rights (art.7), the American Convention on Human Rights (art.25), as wellas decisions by the European Court of Human Rights and the Inter-American Court of Human Rights, also recognize the rights of victims. Finally, the Rome Statue established the power of the International Criminal Court to “determine the scope and extent of any damage, loss and injury to, or in respect of, victims “and to” make and order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.
Transitional Justice: Over the past few years, new mechanisms for accountability and victims’ right to the truth and to reparation, particularly in post-conflict situations, have evolved. Transitional justice mechanism, for example, have been developed at the national level as means to facilitate the end of hostilities, while preserving the State’s obligation to ensure accountability and the victims’ right to truth and reparation. Often countries emerging from civil war or authoritarian rule create truth commissions during the immediate post-conflict or transition period.
These commissions are given a relatively short period for investigations and public hearings before completing their work with a final public report. While truth commissions do not replace the need for prosecutions, they offer some form of accountability that serves the interests of addressing situations where prosecutions for massive crimes are impossible or unlikely.
It is important to note that for a truth and reconciliation process to succeed, violent conflict, war or repression must have come to an end. It is possible that de fact security situation will not have fully improved, and truth commissions often do work in a context where victims and witnesses are afraid to speak publically or to be seen to cooperate with commission. But if a war or violent conflict is still actively continuing throughout the country, it is unlikely that there will be sufficient space to undertake a serious inquiry.
Other mechanisms that have used to guarantee accountability and reparation to victims are international compensation commissions. For example, the United Nations Compensation Commission was created in 1991 as a subsidiary organ of the United Nations Security Council. Its mandate was to process claims and pay compensation for losses and damage suffered as a direct result of Iraq’s unlawful invasion and occupation of Kuwait. This alternative form of justice provides a further mechanism to ensure that States that have sponsored or curried out serious violations of international human rights and humanitarian law are held liable for their acts, and also enables victims to obtain reparation.
Another mechanism that has contributed to fulfilling the duty of States to investigate human rights violations is the creation of official commission of inquiry with a human rights mandate. The names of these commissions, their composition, and terms of reference, time frames and powers vary greatly.
Although such inquiries are by definition established of the initiative of the Government authorities, they are most often a result of concerned demands by civil society and sometimes also by the international community. National commissions of inquiry are often set up to address victim-specific violations by being tasked to investigate the alleged abuses, give a detailed account of a particular incident or series of abuses, or recommend individuals for persecution. In an effort by the State to prevent future violations or to strengthen the criminal justice system, a commission may also be given a broader mandate to report on the causes of the violation and to propose recommendations for institutional reform.
Proposed Model of Transitional Justice applicable to Somalia Situation: as we discussed in the previous section, the well-established concept and practice of transitional justice, in accordance with the United Nations model, the following section will be devoted to best approach and suitable transitional justice which align Somali culture and address the characteristics of the conflict its self and brings peace and justice in grass-root level.
Taking in to consideration that, current Somali government and its African Mission for Somalia (AMISOM) does not include their short term plan and goal to employ accountability and justice for those parties involved armed conflict in the past and the current ongoing with Al-Shabaab militia, it is crucial to propose justice mechanism applicable to dealt with remedy and reparation for victims and brought to the justice for perpetrators.
The model proposed might not be the best model; and on the view of this thesis, it does not pretend to propose the best model of justice for Somalia, rather the most feasible and possible under the circumstances (limited Government capacity and instable security in the country. The model is based on a combination of two mechanisms that can bring both retributive and restorative justice: ad hoc tribunal and the use of the Xeer(“law, rule, regulation” in Somali), the informal justice system in Somalia.
Before we proceed to these to mechanism, briefly, we review the essence and concept of retributive and restorative justice.
Retributive justice is a theory of justice that considers punishment, if proportionate, is a morally acceptable response to crime, by providing satisfaction and psychological benefits to the victim, the offender and society. It is typical criminal justice system that aims to achieve justice through sufficiently punishing the wrong-doer.
While Restorative justice in an approach to justice that focuses on the needs of victims and offenders, instead of the need to satisfy the rules of law or the need of the community to give out punishment. This is mainly relevant to informal justice system.
The first mechanism considered for this model ad hoc tribunal which will serve mainly retributive goals, holding the main perpetrators of human right and humanitarian law violations and atrocities accountable for the violations they committed. While the second mechanism is Xeer or customary rule which will serve mainly restorative purposes with some retributive components related to compensation.
Ad hoc model:this mechanism of transitional justice is important for Somalia case; its goal would have to be accountability; to hold perpetrators responsible for their conduct, through public acknowledgment, proper investigations, prosecution and punishment for the violations of human right and humanitarian law. On the point of view of this thesis, this mechanism is more important to be employed and applied to armed groups like Al-Shabaab; committing atrocious and crimes against humanity; assassinations and targeting of civilians, arbitrary or unlawful deprivation of life, the recruitment of child soldiers and incriminatory explosions against civilians and public places.
Since Somalia is not State Party to Roma Statute of the International Criminal Court (ICC), and the fact that, most of African Nations claimed their intention to withdraw the ICC, it is necessary to establish an ad hoc tribunal under the auspice of the African Union, so that, it has the jurisdiction to try and prosecute most serious crimes (war crimes, crimes against humanity, torture and inhuman degrading) committed during the civil war in Somalia and the ongoing armed conflict in which all parties including terrorist groups (Al-Shabaab) committed international crimes.
It can be taken as an example, best practice and success story for the African led criminal justice, criminal accountability and the protection of human rights in the Continent; for the creation of the Extraordinary African Chambers (EAC) to trial Mr. Hussein Habre, the former president of the Republic of Chad. Mr. Hussein Habre was accused by the international community for committing international crimes such as crimes against humanity, war crimes, and torture during his presidency from 1982 to 1990. On 30th of May 2016, the EAC in its verdict sentenced the Mr. Habre to life imprisonment.
The extraordinary African Chambers (EAC)
The EAC is a Hybrid Quasi-Judiciary Body created on the basis of an international agreement between the Republic of Senegal and the African Union to try Mr. EAC was created by Senegal under the auspice of the African Union in 22 August 2012. Hussein Habre alleged to have committed international crime. Despite EAC completes operation as a Senegalese National Judicial Institution, it presents some very important features that guaranteed its Statute as an international impartial hybrid legal body. The EAC comprises of four Chambers:
Chamber 1. Section on investigations with four (4) Senegalese Judges,
Chamber 2. Section for prosecution composing of three (3) Senegalese Judges,
Chamber 3. Country Court with two (2) Senegalese Judges and a President from another African Country,
Chamber 4. Appeal Chamber two (2) Senegalese Judges and a President from another Country.
Another important fact is that most of the judges of the EAC are Senegalese, they are appointed by the President of the AU Commission. On the other hand, judges form other African countries played important roles as President of chambers. Ended the Presidents of Country Court and the Appeal Court are from other African Countries.
In his article, Professor AduYikez concluded the positive sides for the creation of the EAC under the auspice of African Union and its great contribution to the protection of human rights in Africa and fight against the culture of impunity. He concluded;
“The decision of the EAC to sentence Mr. Hussein Habre has great relevance to the African continent in terms of human rights protection. EAC constitutes a good example against impunity in Africa. Also, it is a new away for the African Peoples to deal with African problems with African solution”.
Xeer, or Customary Law: are unwritten traditional norms passed down in verbal form from one generation to another. It is informal justice system led by the clan elders. The Xeer system is associated with the idea of restorative justice. One of its main goals is to reestablish the social order. Victims are compensated through a Diya(blood compensation, which consists of either money or livestock. It also serves to deter further crimes, and to reintegrate both victims and perpetrators in their communities. In the clan justice, the decision is made to stop and deter violence, the aim is to make peace and set up an agreement.
A similar mechanism was adopted by Rwanda in 1996. The Gacacacourts; (a traditional community-based justice system), have been used in Rwanda since 2002 to pursue justice after 1994 genocide. In Rwanda, the decision to use the Gacaca, the local mechanism to solve disputes, is due mainly to the high number of people involved in the genocide.
It was clear that the domestic court or formal justice mechanism would take too long and require too many resources. According to this model, older men would solve the disputes over property, inheritance, personal injuries, and family matters. The punishment was not individual but collective; judges had the ability to impose restitutions on the perpetrator’s family even their entire clan.
In the situation of Somalia, like Rwanda, the number of perpetrators is high and domestic courts lacks financial and human resources to try all cases. Because of the prolonged instability in the country, many judges and well-educated people have fled the country.
Moreover, many legal codes (Somali criminal code and its procedure) are outdated and the function of judicial organ is weak. There is widespread allegations of corrupt and biased judicial personal and lack of judicial independence from the executive organ. Due to that, there is general lack of trust in the ability of the national court to assure a fair, impartial, accountability and transparent trial and lacks public trust.
The positive of this mechanism (Xeer, informal justice system) is that, the system is already in place, it is well functioning in the community and is more likely enforced then formal justice verdicts, because social pressure or other social groups including clan elders pressure or compels for the compliance to the judgments.
So in this case, no new structures are needed, such as establishing courts and appointing or election of judges or judicial personnel, and more importantly, financial resources needed to implement for this mechanism are minimal.

⦁ Somalia’s State Capacity to Respect, Protect and Fulfill International Obligations.

In this section, we will discuss the concept of State capacity. As we all know that, there is connection between State capacity and humanitarian, human rights protection. When State have enough strength to be capable of performing certain tasks and fulfill main responsibilities which is the characteristic of State, there is a possibility that international obligations, international humanitarian and human rights law will be respected, protected and fulfilled.
Before we proceed further, we will present the definition and content of State. The State is considered to be basic form of organization of political life of people. Modern State is an organization of the nation and preserves a central unity in its authority, and formed on a national basis and tends to become in great size.
Another explanation of State was given by scholar “State is sovereign or the supreme power, within its territory and that State sovereignty extends to all the individuals in a given territory”. In accordance with characteristics of modern State, as stipulated in article 1 of the Montevideo Convention on Rights and Duties of States, State as a person of international law should possess the following qualifications: (a) permanent population; (b) a defined territory; (c) government; and (capacity to enter into relations with the other states, and territorial sovereignty and sovereign equality among States (be recognized as a sovereign State that able to voluntarily establish equal relations with other countries and be a member of international organization), as the Treaty of Westphalia and United Nations Charter stipulated.
As our interest is to evaluate the capacity of Somalia government to fulfill its obligations and to respect, protect and fulfill international humanitarian and human rights law domestically and internationally, the following section will be devoted to discuss one element of Statehood; that is the government.
The existence of a permanent population on a given territory is itself insufficient for statehood as we review above for requirement of statehood. The most crucial one is that, the existence of a government capable of exercising independent and effective authority over the population and the territory. This rule which attached to the criteria of statehood is understandable considering government representing its nations have a legal before the eyes of international community and international law. And for that, all agreements and international obligations must be guaranteed by government. Therefore, government must be able to the effectively and independently exercise its supreme authority within and throughout its borders and population, that is the case, which Somalia government lacks.
Capacity: when we talk about government capacity or State capacity in order to impose its supreme power over populations or citizens and people inhabitant in the territory, it reasonable to look different dimensions and angels, not only economic capacity or military and security personnel capacity, but also political and administrative capacity to deliver service and do certain tasks.
A State with full capacity seek to keep the monopoly of the use of force establishing domestic law and order which is one of the characteristics of modern State. In Somalia, government is unable to impose such monopoly due to incapability to function probably. And there is a competing power existing within the government and internal administrations. For example, Somalia adopted federal system where subjects of federations exercise their functions independently without knowledge of the central government.
Military and security delivery capability: As some publications stated, the Somali government is facing huge security challenges; extremist militias (Al-Shabaab) controls almost large part of the Somali territory. These extremist groups are fighting against the weak government, violating basic human rights and humanitarian law rules.
The government lacks military forces and other security forces and in that area relies mostly on the help of AMISOM forces. There is no effective police force and intelligence unit to maintain law and order throughout the country and its population. In addition to that, clans and business individuals and companies have their own militias that are used to protect, in the absence of State security personnel. In such case, the government lacks the capacity necessary to provide respect for the rule of law, human and humanitarian law and security of its citizens and other inhabitants.
Government administration to deliver service: as we discussed in the first and second part of this thesis, Somalia is recovering from a prolonged civil war, armed conflict and absence of central government. Due to that, the lack of governing capacity or effective central administration could be a factor in increase of violence or internal armed conflict, corruption, incapable security forces, piracy, terrorism, migration and displacement and humanitarian crises such as drought and famine and thus human and humanitarian violations occur.
For the past ten years, there has been made improvement in terms of political organization. Current Somali government has a working constitution and three branches of government (working cabinets, legislatures and judiciary organ), despite that, there have no touchable efforts to build an effective organization structure; bureaucratic or administrative capacity to deliver services, fight against corruption and violence in the county.Against this background, government possess no control over the use of force not only areas under its control or other federal subjects which gives support to the government, but also areas under control of Al-Shabaab. Therefore, it is the view of thesis that, the Somali government is unable to protection its citizens and thus, their basic human rights and humanitarian law are abused or violated.
The following paragraph will be discussed, the principle of “Responsibility to Protect (R2P). The connection between State responsibility to upheld and protect its citizen form gross violations of human rights and the cases where States are unable or unwilling to do so vis-à-vis the responsibility of international community to assist the States to fulfill its primary responsibility.
Responsibility to Protect (R2P):The principle of R2P dates back 1990s after tragedies and atrocities took place in Rwanda and Balkans. The international community began to seriously debate ways to react on such atrocities and gross and systematic violations happened. The principle was adopted by the heads of States and government at the World Summit in 2005 sitting as the United Nations General Assembly.
“The R2P is a principle which seeks to ensure that the international community never again fails to act in the force of genocide and other gross forms of human rights abuse”
The (R2P) embraces threefold responsibility, as following:
First: That State held the primary responsibility for protecting it populations and citizens from genocide, war crimes, crimes against humanity and ethnic cleaning.
Second: the international community should assist them in doing so, the international community has a responsibility to encourage and assist States in fulfilling this responsibility.
Third: if States in question fails to act appropriately, the responsibility to protect falls to that larger community of States, and to use appropriate means; diplomatic, humanitarian and other means to protect populations form these crimes in accordance with international law and United Nations Charter.
The Principe (R2P), has been endorsed in 2004, the High-level Panel on Threats, Challenges and Change, that set up by Secretary-General Gofi Annan, stating that “there is collective international responsibility, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing and serious violations of humanitarian law which sovereign governments have proved powerless or unwilling to prevent.
In practice, the (R2P) has used multiple occasions in different places and sovereign States.
In the case of Somalia, as we discussed in the previous section, the Somali government is unable or unwilling to protect its citizen and other residents in the territories of the country, persecute and held responsible for individuals committed atrocities and gross violations of humanitarian and human rights law. Therefore, the responsibly to protect (R2P) is relevant in this situation, where the international community in large has the responsibility to assist the Somalia government to fulfill its primary responsibility.
This can be done in various methods, including capacity building of the judicial and rule of law and security institutions.
CONCLUSION
Human Rights become international issue under the auspice of the United Nations System after the end of the World War II, when International Community come together to adopt first human rights document as an ideal standard for all nations, called “Universal Declaration of Human Rights in 1948” and then, later the adoption of the two treaties and additional protocols “International Covenant on Civil and Political Rights and International Covenant of Economic, Social and Cultural Rights in same year 1966. The rights contained these treaties and the Declaration eventually were incorporated in to the domestic legal frameworks of all nations and thus, and States are expected to respect, protect, fulfill obligation contained in the treaties.
After reviewing the existing human rights standards and treaties, international criminal law or humanitarian law, the study showed that Somalia is a State-party to core human rights treaties and Geneva Conventions of 1949 and number of regional treaties.
The study further analyzed these documents and treaties to find out what constitute international crimes, gross and systematic violations of human rights in accordance with international treaties and jurisprudence.
As suggested by some studies, the root causes of Somalia conflict were competition for resources and/or power, a repressive state and the colonial legacy, denial of rights, politicized clan identity, the availability of weapons and the large numbers of unemployed youth.
The study revealed that actors involved the prolonged Somali conflict, whether during the civil war from 1991 to 96, or the current ongoing armed conflict between Al-Shabaab militia against Somali Government and its AMISOM, committed or violated whole or part of the international humanitarian and human rights law. More specifically, for the ongoing armed conflict between Government and Al-Shabaab, the later were constantly accused of committing war crimes, crimes against humanity; by committing indiscriminate attacks, torture or inhuman treatment, taking of hostages, using civilians as shield, unlawful imprisonment, and deprivation of physical liberty, persecution or assassination against any individuals or groups or collectively for political or ideological differences.
In the study, it was discussed and elaborated the accountability and criminal responsibility of individuals and groups. Accountability is the foundation of humanitarian and human rights protection system. It is essential system of norms, rules, procedures and practices that govern, first the relationship between the States and second between States and individuals.
Due to instability many parties of Somali territory, and ineffective of State institutions, the study suggested suitable transitional justice which align Somali culture and address the characteristics of the conflict its self and brings peace and social justice in grass-root level.
The study recommended that transitional justice is more appropriate in the current situation in Somalia, indeed, the model proposed might not be the best model; and on the view of this thesis, it does not pretend to propose the best model of justice for Somalia, rather the most feasible and possible under the circumstances (limited Government capacity and instable security in the country). The model is based on a combination of two mechanisms that can bring both retributive and restorative justice: Ad hoc tribunal and the use of the Xeer(“law, rule, regulation” in Somali), the informal justice system in Somalia.
The study examined and presented as case study or best practice for the African led criminal justice, criminal accountability and the protection of human rights in the Continent; for the creation of the Extraordinary African Chambers (EAC) to trial Mr. Hussein Habre, the former president of the Republic of Chad. Mr. Hussein Habre was accused by the international community for committing international crimes such as crimes against humanity, war crimes, and torture during his presidency from 1982 to 1990. On 30th of May 2016, the EAC in its verdict sentenced the Mr. Habre to life imprisonment.
The study argued that, Since Somalia is not State Party to Roma Statute of the International Criminal Court (ICC), it is necessary to establish an ad hoc tribunal under the auspice of the African Union, so that, it has the jurisdiction to try and prosecute most serious crimes (war crimes, crimes against humanity, torture and inhuman degrading treatment) committed during the civil war in Somalia and the ongoing armed conflict in which all parties including terrorist groups (Al-Shabaab) committed international crimes.
It was also discussed the concept of State capacity to implement national agenda, and keep law and order in whole territory and population.The State capacity matters when it comes to enjoyment of human rights and freedoms. State should have the monopoly to enforce law and order, to bring stability, peaceful coexistence among Somalis. The effective State institutions are, the most likely human rights are guaranteed and better human rights condition.
Further, the study showed that, due to lack of State capacity and prolonged conflict resulted ineffective protection of basic human right and many violations occurred.
Last but not least, the study discussed the principle of “Responsibility to Protect” (R2P). In situations where State is unable or unwilling to protect and fulfill its obligation to protect its citizens form gross and systematic violations of human rights, the R2P falls to that larger community of States, and to use appropriate means; diplomatic, humanitarian and other means to protect populations form these crimes in accordance with international law and United Nations Charter.
As revealed in the study, the Somali government is unable or unwilling to protect its citizen and other residents in the territories of the country, persecute and held responsible for individuals committed atrocities, gross and systematic violations of humanitarian and human rights law. Therefore, the study argued that, the responsibly to protect (R2P) is relevant in this situation, where the international community in large has the responsibility to assist the Somalia government to fulfill its primary responsibility.
This can be done in various methods, including capacity building of various institutions and more importantly, the judicial organ as well security institutions.
In order to eliminate the climate of impunity in which human rights abuses occur, the study provides various recommendations to be taken by the Somalia Government and other stakeholders, and is as following:
The Somali Government to respect and implement the international humanitarian and human rights treaties that already ratified, in accordance with international standard;
That Somalia ratify and implement the core humanitarian and human rights treaties, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), ratify and implement the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, which prohibits the forced recruitment of anyone under age 18 or their use in hostilities by both governmental and nongovernmental armed groups;
Somali Government to cooperate and work more closely with human rights monitoring mechanisms in United Nations and African Continent level; such as Treaty Bodies and Charter-based Bodies and independent experts mandated to monitor State parties’ compliance with their treaty obligations, as well as submitting the periodic reports in a timely manner.
Ensure that the national human rights commissions is structured and functions in accordance with the Paris Principles on National Human rights Institutions and permit the commission to independently initiate investigations for the alleged crimes and individuals, including government officials and agencies.
In order to improve access to justice, Somali Government to put priority for legal reforms based on international human rights standard, strengthen judiciary in order to fight impunity by armed militias and terrorist groups and ensure due process and fair trial and just administration of justice.
Protection of civilians and compliance to International Humanitarian Law should be top priority. Somali security forces should comply with International Humanitarian Law and take necessary measures to protect the lives of individuals, ensure that new and current military and security personnel receive appropriate training in human rights and humanitarian law.
Protection of human rights defenders is necessary at this crucial time in Somalia. Freedom of expression and human rights education should be encouraged.
The study showed that serious abuses by Somali Security forces, including the army, police, intelligence agencies, and government-affiliated militia were taken place during the ongoing armed conflict. The Somali Government to ensure accountability in the security sector, it requires not only by establishing clear vetting procedure when recruiting officials in order to identify individuals with the history of the participation in the civil war and the ongoing armed conflict such as former warlords, former Al-Shabaab fighters and their commanders, and other terrorist groups, but also to put in place disciplinary and oversight mechanism to remove abusive commanders and prosecute in accordance with the law of the country.
Lastly, the study concludes that further studies and research be undertaken on the subject matter is necessary, bearing in mind, the fact that, literature ofsubject matter was very limited and the issue of Somalia conflict vis-a-vis human rights protection is matter of concern and urgent for all stakeholders and observers.

ABRIVIATIONS

UN-United Nations
AU-African Union
AMISOM-African Union Mission in Somalia
AS-Al-Shabaab
TFG-Transitional Federal Government
SCIC-Supreme Council of Islamic Courts
ICU- Islamic Courts Union
USSR-Union of Soviet Socialist Republics
IHL-International Humanitarian Law
IHRS-International Human Rights Law
NIAC-Non-International Armed Conflict
ICTY-International Criminal Tribunal for the former Yugoslavia
UDHR-Universal Declaration of Human Rights
ICCPR-International Covenant on Civil and Political Rights
ICESCR-International Covenant on Economic, Social and Cultural Rights
AP-Additional Protocol
TB-Treaty Bodies
ILO-International Labour Organization
LTTE -Liberation Tigers of Tamil Ealam
UNITAF-Unified Task Force
UNOSOM-United Nations Operation in Somalia
UNHCR)-United Nations High Commissioner for Refugees
OCHA -United Nations Office for the Coordination of Humanitarian Affairs

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⦁ Report of the Special Rapporteur, Philip Alston, E/CN.4/2006/53/Add.5. UN.DOC.
⦁ United Nations Security Council, Report of the Secretary-General on the situation in Somalia pursuant to paragraphs 3 and 9 of Security Council resolution 1744 (2007), (S/2007/204), 20 April 2007.
⦁ Application of the Convention on the Prevention and Punishment of the Crime of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), judgment, I.C.J. Reports 2007.
⦁ The Responsibility to Protect: Outreach Program on Rwanda Genocide and the United Nations. UN.DOC. 2008.
⦁ International Humanitarian law and International Human Rights Law: Similarities and Differences-Factsheet. ICRC.2003.
⦁ Claudia Hofmann and Ulrich Schneckener: Engaging non-state armed actors in state and peace-building options and strategies. ICRC. Volume 93 Number 883. 2011.
⦁ Report of the Special Rapporteur, Philip Alston, E/CN.4/2006/53/Add.5. UN.DOC.
⦁ Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries. Adopted by the International Law Commission at its fifty-third session, 2001.
⦁ General Comment No. 31 [80], The Nature of the General legal Obligation Imposed on States Parties to the Covenant, adopted on 29 March 2004.
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⦁ Basic Principles and Guidelines on the Rights to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 2005: UN.DOC.
⦁ US State Department, Somalia Human Rights Report, 2014.
⦁ The Tupology of States’ Obligation. Academy on Human Rights and Humanitarian Law Specialized, 2012.
⦁ DanwoodMzikengeChirwa: The doctrine of State Responsibility as a Potential Means of Holding Private Actors Accountable for Human Rights. Melbourne Journal of International Law, Vol 5.
⦁ Kathleen Daly: Revisiting the Relationship between Retributive and Restorative Justice. Griffith University Research Online, 2000.
⦁ Genocide, Justice, and Rwanda’s Gacaca Courts: Journal of Contemporary Criminal Justice, 2014, Vol. 30(3) 333–352.
⦁ International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Report prepared by The International Committee of the Red Cross, Geneva, 2003.
⦁ Conflict, peace, and situation analysis summary, UNICEF, 2014,
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⦁ World Bank Report: – Conflict in Somalia: Drivers and Dynamics, January 2005.
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⦁ Amnesty International:-Human right violations and abuses persist, Report Somalia: Submission to the UN Universal Periodic Review 24th Session of the UPR Working Group, January – February 2016.
⦁ Amnesty International: Human Rights violations and Abuses persist in Somalia, 2016.
⦁ International Humanitarian Law and Human Rights, American Red Cross.2013.
⦁ Dr. Andre Le: Stateless: Justice in Somalia: Formal and Informal Rule of Law Initiatives, Center for Humanitarian Dialogue 2005.
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⦁ House of Commons Library: Somalia, Briefing Paper. 2017.
⦁ NneomaChigozieUdeariry: To What Extent do International Organizations Possess International Legal Personality?, 2011.
⦁ AduNikez. The Legality of the Extraordinary African Chambers on the Light of the International Criminal Tribunals: The Case of Hussein Habre// Indian Journal of Science and Technology, Vol 9 (42),2016. p.1-5.
⦁ AntoniosKouroutakis, Note of the Provisional Constitution of the Federal Republic of Somalia.2017.
⦁ ICTY, The Prosecutor v. DuskoTadic, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2 October 1995.
Internet Sources
⦁ Amnesty International: Human Rights violations and Abuses persist in Somalia, 2016.file:///C:/Users/n.yao/Downloads/AFR5228202015ENGLISH.pdf
⦁ The United Nations Human Rights Treaty System, Fact Sheet No. 30/Rev.1.2012.; UN.DOC. (accessed April. 15, 2017)
⦁ http://www.ohchr.org/Documents/Publications/FactSheet30Rev1.pdf
⦁ IHL and Human Rights Law Overview. ICRC. 2010.https://www.icrc.org/eng/war-and-law/ihl-other-legal-regmies/ihl-human-rights/overview-ihl-and-human-rights.htm
⦁ Rule 151: individual Responsibility. ICRC. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule151
⦁ Rule 144: Ensuring Respect for International Humanitarian Law. ICRC. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule144
⦁ Hostages of the Gatekeepers; Abuses against Internally Displaced in Mogadishu:https://www.hrw.org/report/2013/03/28/hostages-gatekeepers/abuses-against-internally-displaced-mogadishu-somalia
⦁ No Place for Children: Recruitment, Force Marriage, and Attacks on School in Somalia. Human Rights Watch.https://www.hrw.org/sites/default/files/reports/somalia0212ForUpload.pdf
⦁ Who are Somalia’s al-Shabab?⦁ http⦁ ://www.bbc.com/news/world-africa-15336689 [accessed Jan14, 2017).
⦁ Braden Civins , Ethiopia’s Intervention in Somalia,2007-2009, University of Texas.https://yonseijournal.files.wordpress.com/2012/08/ethiopia.pdf
⦁ AMISOM Background :http://amisom-au.org/amisom-background/
⦁ AMISOM Mandate 2006-2007: http://amisom-au.org/mandate-2006-2007/
⦁ About Somalia, UNDP,http://www.so.undp.org/content/somalia/en/home/countryinfo.html
⦁ Conflicts not of an international character, ICRC.https://ihl-databases.icrc.org/ihl/WebART/375-590006
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⦁ Member States of AU, Somalia.https://www.au.int/en/AU_Member_States (accessed 13 Jan. 2017)
⦁ Treaties, States Parties and Commentaries; Somalia. ⦁ https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountrySelected.xsp?xp_countrySelected=SO⦁ &⦁ nv=4
⦁ Convention on the Rights of the Child, Somalia reservation;⦁ https://treaties.un.org/Pages/ViewDetails.aspx?src=IND⦁ &⦁ mtdsg_no=IV-11⦁ &⦁ chapter=4⦁ &⦁ clang=_en#EndDec
⦁ Status List, signature or ratification of Kampala Convention, https://www.au.int/web/en/treaties/african-union-convention-protection-and-assistance-internally-displaced-persons-africa
⦁ United Nations Member States, Somalia,http://www.un.org/en/member-states/ (accessed 13 Jan. 2017)
⦁ Dr. Simon Adams. Failure to Protect: Syria and the Security Council. 2015.Available in internet: http://www.globalr2p.org/media/files/syriapaper_final.pdf
⦁ Somalia: Al-Shabab attack at Mogadishu hotel ‘kills 28’http://www.aljazeera.com/news/2017/01/somalia-car-bomb-attack-targets-mogadishu-hotel-170125061508189.html (accessed April. 01, 2017)
⦁ Somalia Map: worldatlashttp://www.worldatlas.com/webimage/countrys/africa/lgcolor/socolor.htm
⦁ The Root Causes of the Conflict in Somalia History Essay.”UKessays.com. 11 2013. All Answers Ltd. 11 2016 https://www.ukessays.com/essays/history/the-root-causes-of-the-conflict-in-somalia-history-essay.php?cref=1.
⦁ Somaliland says “We are not part of Somalia election but its respected elders said “we are part of Somalia”https://www.radiodalsan.com/2016/12/07/somaliland-says-were-not-part-of-somali-election-but-its-respected-elders-said-we-are-part-of-somalia/ (accessed April. 01, 2017)

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