The extent and sustained nature of armed violence, and the level of organization of the non-state armed groups fighting, particularly the al-Shabaab, mean that the situation has reached the threshold of an armed conflict. As Somalia is fighting against non-state armed groups, the armed conflict is qualified as being of a non-international character.
As of February 2012, both Ethiopia and Kenya were intervening militarily against al-Shabaab. Somaliland was not engaged in an armed conflict. In the past, outbreaks of violence between Somaliland and Puntland security forces have reached the threshold of a non-international armed conflict.
International humanitarian law
Applicable to all parties to the conflict, state and non-state actors:
• Common Article 3 to the 1949 Geneva Conventions;
• Customary international humanitarian law applicable to a NIAC.
Somalia is not a party to 1977 Additional Protocol II, which deals with non-international armed conflicts, therefore only its customqry provisions are applicable. The threshold of violence for the application of the Protocol is higher than it is for common Article 3, but were Somalia to adhere to the Protocol, this instrument would apply to the conflict at its current intensity.
International human rights law
Somalia is bound by both applicable treaty and customary human rights law (see the RULAC papers on the interaction between international humanitarian and human rights law in armed conflict; and Derogation from human rights treaties in situations of emergency).
There is increasing acceptance that armed non-state actors are also bound by at least customary norms of international human rights law. Thus, the UN Assistance Mission in Afghanistan stated in February 2012 that:
While non-State actors in Afghanistan, including non-State armed groups, cannot formally become parties to international human rights treaties, international human rights law increasingly recognizes that where non-State actors, such as the Taliban, exercise de facto control over territory, they are bound by international human rights obligations. (See UN Assistance Mission in Afghanistan (UNAMA), Annual report, February 2012 at p. iv.)
International criminal law
Somalia is not party to the Rome Statute.
In the Tadić case, decided by the International Criminal Tribunal for the former Yugoslavia in 1999, the Tribunal ruled that serious violations of Common Article 3 involve individual criminal responsibility.
It is prohibited to attack any civilian taking no active part in hostilities, or any soldier who has laid down his arms or who is hors de combat because of sickness, wounds, detention, or any other cause. Children must not be recruited into armed forces or armed groups or allowed to take part in hostilities. It is prohibited to attack any civilian objects. Civilian objects are any buildings or areas that are not lawful military objectives. Indiscriminate attacks, which do not distinguish between military objectives and civilians and/or civilian objects, are prohibited. The use of indiscriminate weapons is prohibited.
Military personnel may not be attacked with weapons that are of a nature to cause superfluous injury or unnecessary suffering. Attacks against lawful military objectives (personnel or equipment) are prohibited if they may be expected to cause excessive harm to either civilians or civilian objects, or a combination of both, in relation to the concrete and direct military advantage anticipated. All feasible precautions must be taken to avoid, and in any event to minimise, incidental loss of civilian life, injury to civilians and damage to civilian objects.
Enforced disappearances are prohibited. Hostages shall not be taken. Arbitrary deprivation of liberty is prohibited. Anyone detained by a party to an armed conflict must be treated humanely and in accordance with their sex, age, and religious beliefs. Murder, torture, rape, bodily injury, or other cruel, humiliating or degrading treatment, are all prohibited. Summary or arbitrary executions are prohibited. No one may be convicted or sentenced, except pursuant to a fair trial affording all essential judicial guarantees. This includes a defendant’s right to know the charges against him/her; to understand the court proceedings; to have the opportunity to conduct a genuine defence; and to be able to appeal against both conviction and sentence. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
For other provisions of international humanitarian law applicable in a non-international armed conflict, see the summary of customary rules identified by the ICRC (pdf below). Derogations from other human rights in accordance with the International Covenant on Civil and Political Rights may only occur in “time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed.” Any derogation must be only “to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”
Last updated: 18 July 2012