US/Somalia: Allegations of International Law Violations

Garza post imageThe majority of States, including the U.S., are bound by the Geneva Conventions of 1949 which requires member states to treat persons not engaged in hostilities humanely.[1] The convention further prohibits “violence to the life and person [not engaged in hostilities], in particular murder of all kinds, mutilation, cruel treatment and torture.”[2] International Humanitarian Law (IHL) is based on the Geneva Conventions of 1949 and subsequent agreements among states.[3] IHL governs the relations between States during times of conflict with the intention to limit its effects and aims to protect civilians or persons no longer engaged hostilities from harm during times of armed conflict.[4]

In 2011, the United States began launching limited air strikes against “high value targets” in areas of Somalia that were largely controlled by Al-Shabaab, an armed terrorist group associated with Al’Qa’ida.[5] The limited attacks were initially justified by the global war against Al’Qa’ida and then, in 2016, the attacks were justified by operations conducted by the African Union Mission in Somalia, a peace enforcement force authorized by the United Nations and the African Union.[6] The 2013 Presidential Policy Guidance (PPG) provided detailed procedures for counterterrorist actions, including lethal actions against terrorist targets.[7] The PPG only permitted direct action against an “identified high-value terrorist” in “ . . . extra-ordinary circumstances . . . when there [was] near certainty that the individual being targeted [was] in fact the lawful target and located at the place where the action will occur” and direct action would only be takin if “ . . . the action [could] be taken without injuring or killing non-combatants.”[8] The policy was also limited by international legal principles, including State Sovereignty and the “laws of war.”[9] From 2013 to 2016, twenty nine targeted air strikes were reported in Somalia.[10]

In March 2017, the restrictions regarding the use of force against terrorist targets set forth in the 2013 PPG were superseded by an undisclosed directive issued by President Donald Trump.[11] The new directive designates parts of Somalia as “area[s] of active hostility” and “reportedly gives U.S. forces the greatest latitude to carry out strikes as is allowable under the U.S.A.’s interpretation of IHL.”[12] Since the signing of the new directive, the number of air strikes has increased dramatically. Between 2017 and 2018, there were a total of eighty air strikes conducted targeting “areas of active hostility,” Thirty five strikes and forty five strikes respectively.[13] In June 2018, the Department of Defense issued a statement confirming there were zero civilian deaths resulting from military operations in Somalia.[14] The United States African Command (AFRICOM) also continues to deny any civilian deaths as a result of its military operations.[15] When asked about the procedures to avoid civilian deaths and how the organization confirms civilian deaths, AFRICOM refused to comment on their surveillance and intelligence measures.[16] Reporters could only confirm that AFRICOM officials fly over the attacked area to evaluate the damage.[17] Furthermore, the Somali government is unable to investigate civilian causalities because the military lacks the resources to complete these investigations.[18] Somali’s affected by the strikes are also limited in their ability to report injuries or deaths in their communities because of the location of the attacks and security risks.[19]

The lack of transparency from the U.S. executive branch and AFRICOM has led independent organizations to complete private investigations into the damage caused by the ever-increasing air strikes. A recent investigation conducted by Amnesty International revealed a minimum of fourteen civilian deaths and a minimum of eight civilian injuries, which resulted from only five out of the more than 100 airstrikes completed since the beginning of 2017.[20] It is logical to conclude that the death toll and injuries are far greater than reported by Amnesty International because of the increasing number of strikes completed in the past two years. The U.S.’s failure to be transparent in its use of lethal force in Somalia has raised valid accusations of violations of IHL and the Geneva Conventions of 1949. Many human rights groups have urged the U.S. to complete transparent investigations into the credible allegations of civilian casualties resulting from military actions in Somalia.[21] Only when the U.S. government acknowledges the harm they have caused to the civilians of Somalia, can those victims pursue justice for the U.S.’s alleged violations of the Geneva Conventions of 1949 and IHL.[22]

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Brittany Garza is a 2L law student at University of Denver Sturm College of Law and staff editor on the Denver Journal of International Law and Policy.

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[1] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 85, 86.

[2] Id. at 87.

[3] Int’l Comm. of the Red Cross, What is International Humanitarian Law? 1 (2004), https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf.

[4] Id.

[5] Amnesty Int’l, The Hidden U.S. War in Somalia: Civilian Casualties From Air Strikes in Lower Shabelle 6 (2019), https://www.amnesty.org/download/Documents/AFR5299522019ENGLISH.PDF.

[6] Id.

[7] Exec. Office of the President, Procedures For Approving Direct Action Against Terrorist Targets

Located Outside the United States and Areas of Active Hostilities (2013), https://www.justice.gov/oip/foia-library/procedures_for_approving_direct_action_against_terrorist_targets/download.

[8] Id.

[9] Id.

[10] Amanda Sperber, Inside the Secretive US Air Campaign in Somalia, The Nation (Feb. 7, 2019), https://www.thenation.com/article/somalia-secret-air-campaign/.

[11] Amnesty Int’l, supra note 5, at 7.

[12] Id.

[13] Sperber, supra note 10.

[14] Amnesty Int’l, supra note 5, at 7.

[15] USA/Somalia: Shroud of Secrecy Around Civilian Deaths Masks Possible War Crimes, Amnesty Int’l (Mar. 20, 2019), https://www.amnesty.org/en/latest/news/2019/03/usa-somalia-shroud-of-secrecy-around-civilian-deaths-masks-possible-war-crimes/ [hereinafter USA/Somalia].

[16] Sperber, supra note 10.

[17] Id.

[18] Id.

[19] USA/Somalia, supra note 15.

[20] Id.

[21] Amnesty Int’l, supra note 5, at 9; Eyder Peralta, U.S. Airstrikes in Somalia May Amount to War Crimes, Says Rights Group, NPR (Mar. 20, 2019), https://www.npr.org/2019/03/20/705090399/u-s-airstrikes-in-somalia-may-amount-to-war-crimes-says-rights-group.

[22] Id.

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