THE POSSIBLITIES OF INTERNATIONAL PROSECUTION AGAINST THE FORMER SOMALI MILITRY REGIME FOR HUMAN RIGHTS ABUSES IN SOMALILAND FROM 1981 TO 1991: ESTABLISHING INDIVIDUAL CRIMINAL AND CIVIL RESPONSIBILIT Posted on September 16, 2010 at 00:14:36 AM by mb3
THE POSSIBLITIES OF INTERNATIONAL PROSECUTION AGAINST THE FORMER SOMALI MILITRY REGIME FOR HUMAN RIGHTS ABUSES IN SOMALILAND FROM 1981 TO 1991: ESTABLISHING INDIVIDUAL CRIMINAL AND CIVIL RESPONSIBILITY UNDER INTERNATIONAL LAW
Submitted in partial fulfilment of the requirements of the degree LLM
(Human Rights and Democratisation in Africa), Centre for Human Rights,
Faculty of Law, University of Pretoria
by Mohamed Farah Hersi
Prepared under the supervision of Prof. Frans Viljoen
at the Faculty of Law, University of Pretoria, South Africa
3 November 2008
Due to the colonization of Africa, the Somali territory was divided into five areas, all subjected to colonial rule, but ruled by different imperialist powers. The northern part of the Somali territory was colonized by the British government, which named it the “Somaliland Protectorate”. The United Kingdom ruled the Somaliland Protectorate from 1884 to 1960.1 During the African nationalist movements, which gathered momentum in the mid 1950s, Somaliland became part of the political movement against imperialistic domination. As a consequence, the chiefs and the political leaders in Somaliland agreed to demand their independence from the British government. On 26 June 1960, the people of Somaliland were given their independence.2 The other four parts where Somali’s were living (Southern Somalia, Djibouti,
the northern Province of Kenya, and parts of Ethiopia (the Ogaden region)), were colonized by Italy, France, and Britain, and occupied by Ethiopia, respectively. During the nationalistic movement, Somali’s in these regions had been struggling to gain their independence from the
colonial rulers.3 At that time, Somaliland was the only independent Somali state, and as a result it started a political movement towards the unification of all Somalis in the colonized territories into a single state. This movement had a pertinent impact on the situation in Italian-colonized South Somalia, which was still under the colonial rule. As a result of these campaigns, South Somalia gained its own independence on 1 July 1960. The people of Somaliland decided to unite with those in South Somalia, in order to preserve the unity of Somali people as one nation. The strength of the prevailing sentiment of Somali unity is apparent from the fact that Somaliland decided to go this route even though it had already been recognized as an independent state by more than 30 countries across the world. Consequently, the Somaliland government decided to unite with South Somali unconditionally and voluntarily.4 On 1 July in 1960, Somaliland and Somalia united together under one nation, the “Democratic Republic of Somalia”.
After nine years of civilian rule, in 1969, the Democratic Republic of Somalia witnessed its first military rule. A coup d’état, led by General Mohamed Siyad Barre, overthrew the civilian government led by Cabdrashid Ali Sharmake. During this military regime in Somalia, a political movement developed in the northern regions of Somalia (Somaliland) against the Barre’s regime.
As result of that movement, Barre started to dismantle and ban all political parties in the country. In addition, he suspended the multi-party system and the Constitution of the Republic of Somalia.
Accordingly, in 1981, members of the Somaliland elite launched the Somali National Movement (SNM) in London. As a result, the northern regions of Somalia (Somaliland), where the Isaac clan dominated, become increasingly hostile to and better organised in its campaigns against the military regime in Somalia. The government of Somalia consequently imposed certain harsh security measures. Politicians belonging to the Isaac group were either killed or arrested. This does not mean that the Isaac was similar to either Tutsi in Rwanda or Bosnian Muslims in Serbia in terms of holding high ranks of governmental positions.
Accurately, they used to have ministers and other high positions including but not limited to military personnel.
In early 1988, a fully fledged civil war had broken out in Somalia formerly northern regions of Somalia. As a result of that hostile approach towards the military rule in the country, Barre’s regime destroyed Somaliland’s capital of Hargeisa, using a combination of artillery, South African mercenaries and bomber aircraft. These aircraft even took off from the airport and outskirts of the city of Hargeisa. Several UN agencies reported these atrocities.5 The SNM defeated Barre’s forces in the northern regions and as result it gained the authority to rule the former northern regions of Somalia (Somaliland). In 1991, the civil war came to an end.
After the fall of Barre’s regime in Somaliland, an inter-clan conference was held in Buroa. On 18 May 1993, the Republic of Somaliland was declared unilaterally as an independent and sovereign
state. The territory of Somaliland, as proclaimed, is bordered by Ethiopia in the south and west, by Djibouti in the northwest, by the Gulf of Aden in the north, and by Somalia in the southeast.6
The extent of the atrocities remained largely hidden away. In 1997, a heavy rain exposed bones, ropes, broken skulls and torn pieces of clothing in shallow graves in Hargeisa, capital city of
Commission of Human Rights, fifty-fifth session, item 19 agenda, the human rights situation in Somalia article 2 of the constitution of the Republic of Somaliland
Then President Mohamed Hajji Ibrahim Igal set up a technical office on the investigation of alleged international crimes committed in Somaliland during the military rule in Somalia. The Somaliland War Committee Investigation was also formally established.8
Purposively, this Committee was aimed at documenting any evidential materials relating to alleged international crimes committed in Somaliland. The Committee was tasked to investigate genocide, crimes against humanity, and war crimes, committed by the Barre regime against the people of Somaliland.9 According to the list made by the Committee, which is still highly classified, the following persons committed international crimes during that time: Mohamed Ali Samater, Mohamed Hersi Morgan, Abdi Ali Yusuf (also known as Tokeh) and others. Mohamed Ali Samater was the Ministry of Defence and then Prime Ministry of Somalia, Mohamed Hersi Morgan was the Army Commander in the northern regions of Somalia (Somaliland), and Tokeh was the Army Commander of Fifth Battalion of Somali National Army. Civil claims were instituted against Samater and Tokeh before US District Court of Virginia by victims of the human rights violations.
The War Crimes Committee requested the UN to carry out a forensic investigation on the mass graves found in the vicinity of Hargeisa.11 An independent human rights expert of the UN Commission on Human Rights requested the UN to send a forensic expert to Somaliland in 1997.12
After preliminary investigation, the forensic experts discovered more than 100 mass graves and reported that some of the mass graves indeed exhibited the characteristics of gross human rights abuses.13 It recommended that the sites be preserved, and an international team of forensic experts be authorized by UN to carry out further investigation.14 Regrettably, this recommendation has
never been implemented by the UN.
1.2 Research question
This study will, firstly, examine whether alleged international crimes, namely genocide, crimes against humanity, and war crimes had been committed by the military regime in the former northern regions of Somalia (Somaliland) during the period 1981 to 1991. Secondly, the study will analyse whether such crimes constitute internationally recognized crimes as provided for by the international conventional definitions, including those in the Statute of the International Criminal Court, and the jurisprudence of ad hoc tribunals. Thirdly, the study will examine the international criminal responsibility of the warring parties. Fourthly, this study will analyse whether there is an
international legal case to be made against those who bear the greatest criminal responsibility for the crimes committed. In addition, the possibility of civil redress will be investigated.
1.3 Significance of the study
There is no academic work or study that had been conducted on this subject. I therefore intend to initiate a debate about this past event. Through this study, it is anticipated that victims will be
equipped with knowledge about the possibility to prosecute those who have committed such crimes. In addition, the study will provide a source to educate the survivors and their relatives about the norms and mechanisms of the international justice system.
1. 4 Objective to the study
Since the aftermath of the brutal civil war in Somaliland, no one has systematically considered the human rights atrocities committed by one of the most brutal regimes in sub-Saharan Africa.
Somaliland is a victim of international crimes, arguably including genocide, crimes against humanity and war crimes. The international community has failed to set up an international tribunal for the trial of those who bear the greatest criminal responsibility for the crimes committed in Somaliland. Therefore, it is the objective of this study, firstly, to throw light on the international rules which govern those crimes committed in Somaliland during the military regime. Secondly,
the study will apply those rules to the case of Somaliland, based on the available evidence. Thirdly, the study will establish a case for the international prosecution of those who bear the greatest
responsibilities for the human rights atrocities that occurred in Somaliland. Fourthly, this study will investigate which international mechanism provides the best chance of serving as an adequate
prosecutorial mechanism. Finally, the study will analyse the role of individual criminal responsibility under international criminal law.
1.5 Literature review
Much has been written on the ever-increasing area of international criminal justice. One of the leading academic in this field is Lyal S. Sunga, who discusses the role of international criminal law
in the international criminal justice system.15 His works elaborates the different stages that international criminal law went through in relation to its codification. The author also explains the
complexity of this newly emerging discipline. The author highlights the significant role played by the International Law Commission during the codification of this emerging discipline. The author further discusses the historical international trials, such as the Tokyo and Nuremburg trials, and also their significant contribution to international criminal law. Dinah Shelton,16 in International Crimes, Peace and Human Rights, has highlighted the experience of Nuremberg trials, and the
contribution of international criminal tribunals for Rwanda and former Yugoslavia towards reconciliation. The author also discussed the merger of international criminal law, international humanitarian law and international human rights law towards unified approach on international human rights crimes.