Due to its country's lack of a stable government,
frequent hostilities and dire humanitarian conditions Somalia is an area of major concern for the United Nations, other states
and groups focused on humanitarian aid and the protection of civilians. With no effective central government, Somalia
is widely considered a "failed state," and the security situation remains volatile throughout the country, with
significant variations depending on the region. Following an extended period of
strife, a two-year peace process resulted in the October 2004 election of Abdullahi Yusuf Ahmed as President of the Transitional
Federal Government (TFG) of Somalia, as well as the formation of an interim government, known as the Somalia Transitional
Federal Institutions (TFIs). The goal of the associated Transitional Federal Charter is the establishment of a Somali
constitution and transition to representative government following national elections in 2009. However, by June 2006,
a loose coalition of clerics, business leaders and Islamic militias known as the Union of Islamic Courts (UIC) had taken control
of large swaths of the country from warlords who had been the key power brokers in the country since the deterioration of
the central government in 1991.
According to a confidential UN Report, in mid-2006
Ethiopian troops were present in Somalia supporting the TFG, and a number of Eritrean troops
had reportedly collected to back UIC forces. Such an arrangement revealed broader regional security issues which were
long-standing. The UIC, in its opposition to the TFG and its supporters, often described itself as a popular uprising,
and it declared a "holy war" against the Ethiopian elements as a result of their presence in Somalia; in October
2006 the President of Ethiopia stated that the country was "technically at war with the UIC." The Ethiopian
government stated that its aims were to "dissolve the war...declared by the UIC" and to protect the sovereignty
of Ethiopia, while supporting the TFG and the people of Somalia
"at their request."
Somali government forces and Ethiopian troops
overtook the militias loyal to the UIC in and around the capital of Mogadishu in 2006. In
addition to support from the Ethiopian government and military, the TFG was backed by the United States and Kenya, who framed
their concern in terms of allegations of links between some UIC factions and al Qaeda networks, including operatives allegedly
responsible for the bombings of the US embassies in Tanzania and Kenya in 1998.
In
southern and central Somalia, fighting continues between the UIC and associated armed groups
against TFG and Ethiopian forces. As recently as April 2008, renewed fighting in the capital Mogadishu left an estimated 81
civilians dead and more than 100 wounded. The shelling of civilians with heavy artillery by TFG/Ethiopian troops and the use
of civilians as human shields by rebel forces led one human rights representative to describe the fighting as the "worst
since 1991." A May 2008 report by Amnesty International indicates that war crimes and possibly crimes against humanity
have been committed by all parties to the conflict, highlighting the role of Ethiopian forces in the slaughtering of civilians.
The participation of non-state armed groups in this fighting raises important questions regarding the application of different
elements of IHL, as well as the classification of the conflict itself.
An
African Union-led regional peacekeeping mission (AMISOM) has been in place in Somalia since
January 2007 with the approval of the United Nations, and its mandate has been continuously renewed for six-month periods.
AMISOM is authorized to support the transitional government, to help implement a national security plan and to assist in securing
the delivery of humanitarian aid. In March 2008, the UN Secretary General reported on the possibility of replacing AMISOM
with a formal UN peacekeeping mission. The Security Council members are currently in the process of responding to this suggestion
and negotiating an approach to peacekeeping and humanitarian aid.
Internationally,
a number of countries (notably the United States), have expressed concern that the absence
of the rule of law in Somalia has led to the use of its territory as a safe haven for international
terrorists. These concerns have led to at least four U.S. air strikes against "principal
al-Qaeda leadership" since December 2006. These attacks raise many questions and concerns about the legality of
both the decision to use force and how force is actually used.
A January
7, 2007, attack, launched by a U.S. Air Force gunship and authorized by Somali officials, is believed to
have killed none of the individuals targeted. Between five to ten people were killed in
that strike, according to U.S. officials. Sources offer conflicting figures, stating that the original air strike, along with
subsequent strikes, killed a number of civilians, along with destroying crops, livestock and homes. More recently, in March
2008, the U.S. launched strikes on a Somali town, officially declaring it an attack on a single suspected terrorist hide out.
The missiles struck a private residence where Islamic leaders were thought to be staying and were reported to have wounded
at least eight and as many as 20 civilians. Again, it is not clear if any of the intended targets were killed. However, in
a May 1, 2008 missile strike, U.S. officials confirmed
that US Central Command had successfully killed at least one leader of the Islamist militant group al-Shabab, which controls
much of Somalia and which the US purports to have links
with al-Qaeda. At least 10 other people are believed to have died in the attack.
Although
a number of complex questions and concerns arise from the application of international humanitarian law to the conduct of
hostilities, the principles of distinction, proportionality and necessity, all of which are a part of customary international
law, always apply to the use of armed force, regardless of the legality of the resort to force:
- Distinction: Parties to an armed conflict must distinguish between the civilian population
and combatants and between civilian objects and military objectives. Any intended target must be a military target.
- Proportionality: Attacks are prohibited if they cause incidental loss of civilian life,
injury to civilians or damage to civilian objects that is excessive in relation to the anticipated concrete and direct military
advantage of the attack.
- Necessity: The use of military force
is only justified to the extent it is necessary to achieve a military goal. This force used must not exceed the level required
to stop the threatening activity.
Other basic IHL principles include the
duty to take precautions to spare the civilian population before and during an attack and to avoid the infliction of unnecessary
suffering or destruction.
Special challenges are presented by attempts to implement
IHL in failed states. Additionally, the situation in Somalia faces further deterioration
due to the continuing threat of piracy, which hampers the delivery of humanitarian supplies and highlights the nation's
insecurity.
Even more questions surround the issue of applying IHL to non-state
actors, such as those terrorist groups alleged to be in hiding in Somalia, along with rebel
forces and other insurgent groups who may not be explicitly addressed under international law. Related legal questions are
those surrounding targeted killings as well as intervention by invitation of a third party to a conflict .
