By Alemayehu G. Mariam

Donkeys, Liars and War Criminals

What a difference two years make! In December 2006, Zenawi invaded Somalia to save it from the “terrorist axis of evil” — Al Qaeda, Al Shabaab and the Islamic Courts Union. In January 2007, he reassured the world, “We will be out of Somalia in a few weeks.” A year ago he likened opposition members of his Parliament who opposed his Somali invasion to that faithful beast of burden, the donkey. He said “both have big eyes, but suffer from myopia; and have big ears, but don’t hear.” This past September, he declared triumphantly that he had fully achieved his primary objective of destroying and neutralizing the Somali “jihadist” threat to Ethiopia. A few days ago he told his parliament African Union troops have asked for help as they prepare to cut and run out of Somalia: “The African Union, Uganda and Burundi have all asked us to stay behind and provide protection for the safe passage of their troops.” Uganda’s deputy foreign minister, Okello Oryem, said that is a complete fabrication: “This is absolutely not true and this is contrary to everything we have said. Our position has always been that if Ethiopia pulls out of Somalia, we will increase our presence there. Uganda is prepared to increase its battalion if there is a need.” In the 104-page report, So Much to Fear: War Crimes and the Devastation of Somalia, Human Rights Watch indicted the Zenawi regime and its military forces in Somalia, the Somali Transitional Federal Government (TFG), and Somali insurgent forces for war crimes involving “widespread and serious violations of the laws of war. Frequent violations include indiscriminate attacks, killings, rape, use of civilians as human shields, and looting.”

The Evidence of War Crimes

HRW’s cumulative evidence on war crimes in Somalia is staggering:

Since January 2007 (the onset of Zenawi’s invasion) at least 870,000 civilians have fled the chaos in Mogadishu alone — two-thirds of the city’s population. Across south-central Somalia, 1.1 million Somalis are displaced from their homes.
[Following the invasion] Insurgent fighters quickly adopted hit-and-run tactics…Ethiopian and TFG forces developed patterns of responding to those attacks that have since become part of the day-to-day reality of life in Mogadishu — reacting to indiscriminate mortar attacks in kind, with devastating barrages of rocket, mortar, and artillery fire across populated neighborhoods.

ENDF [Ethiopian National Defense Forces] forces in Mogadishu have routinely and indiscriminately bombarded populated residential areas of Mogadishu since March 2007. They have made regular use of “Katyusha” rockets in Mogadishu, often fired from BM-21 “Grad” multiple-rocket launchers.

Ethiopian forces carried out similar indiscriminate bombardments in fighting in the strategically important town of Beletweyne. ENDF forces responded by indiscriminately bombarding large swathes of the western districts of the town for three days beginning in July 2008. Humanitarian organizations estimated that at the end of July, 74,000 people—more than 75 percent of the town’s population—had been displaced as a direct result of the bombardment and related fighting.

There have been increased reports in 2008 of Ethiopian forces responding to insurgent ambushes and other attacks by firing indiscriminately into populated areas… particularly in Mogadishu, Baidoa, and along the Mogadishu-Afgooye road.

In 2008 the human rights and humanitarian situation in Somalia deteriorated into unmitigated catastrophe… Two long years of escalating bloodshed and destruction have devastated the country’s people and laid waste to its capital Mogadishu.

During the past two years life in Mogadishu has settled into a horrifying daily rhythm with Ethiopian, TFG, and insurgent forces conducting urban firefights and pounding one another with artillery fire with no regard for the lives of hundreds of thousands of civilians trapped in the city. The bombardments are largely indiscriminate… Insurgents lob mortar shells from populated neighborhoods… and Ethiopian and TFG forces respond with sustained salvos of mortar, artillery, and rocket fire that destroy homes and their inhabitants… TFG forces, often commanded or accompanied by Ethiopian troops, commit assaults, rapes, killings, and pillage of civilians during house-to-house search operations…. The discipline of Ethiopian soldiers in Somalia has broken down to the point where they increasingly are responsible for violent criminality.

TFG and ENDF forces frequently respond to insurgent attacks by firing mortar shells, artillery, and “Katyusha” rockets—the last being weapons that are inherently indiscriminate when used in populated areas—towards the neighborhoods from which they took fire.

ENDF soldiers have been implicated in serious violations of human rights and humanitarian law against Somali civilians with increasing frequency since the end of 2007.

The Art of Hocus Pocus

On the same day the HRW report was released, the regime’s Ministry of Foreign Affairs swiftly responded with a befuddled and incoherent critique of the report’s “methodology” and “specific findings”.[1] The official statement, in the usual categorically dismissive manner, rejected the HRW report because it was based on “flawed methodology, unsubstantiated allegations, hearsay and second-hand information conversations with anonymous informants.” In typical self-serving and sanctimonious hand-wringing style, the statement also declared that it was Ethiopia’s manifest destiny to bring peace to the warring factions in Somalia, and is now leaving because peace had become elusive there: “Ethiopia has persistently tried to facilitate peaceful resolution of the problems among the people of Somalia, not least by sponsoring a whole series of peace conferences since 1992… It was natural for Ethiopia to lend whatever assistance it could when called upon by the Government of Somalia… [Unable] to create a credible ongoing peace process… Ethiopia felt it appropriate to withdraw its forces by the end of the year.”

Remarkably, the official statement glosses over the serious accusations of war crimes and denies responsibility for any unlawful killing of Somali civilians. It even makes the comical argument that most of the Somali casualties since 2006 were not real “civilians”. Rather, “many of the claimed casualties have in fact been of fighters not civilians.” The statement denies the occurrence of any specific collateral damage (unintended civilian casualties) from combat operations by “Ethiopian” forces. It categorically and emphatically rejects the occurrence of any barbaric practices of war such as throat-slitting and body mutilation, and attributes such monstrous practices exclusively to Al Shabaab fighters. “Ethiopian” forces would never commit such atrocities because the “the Ethiopian military would not deploy under-trained troops in a combat zone like Mogadishu and… training in human rights and humanitarian law is part of the core curricula of all the country’s military training institutions at all levels…”

The regime’s criticism of HRW’s methodology — that is the claim that the HRW report consist of “unsubstantiated allegations, hearsay and second-hand information conversations with anonymous informants” — shows willful ignorance of facts and constitutes a feeble attempt at diversion from the serious war crimes allegations. The fact of the matter is that by any objective measure, there is nothing unusual or improper about HRW’s “methodology”. In “So Much to Fear,” HRW employed the same standard investigative techniques and methods it has used in all other cases of suspected war crimes/crimes against humanity. It has not used any questionable techniques in its Somalia investigation. As a matter of fact, HRW’s basic investigative techniques are not much different than those used in ordinary criminal investigations which involve gathering evidence from victims, eyewitnesses, confidential informants, officials, experts and any others sources that are capable of producing material and relevant evidence. In its Somalia report, HRW “interviewed more than 80 victims and eyewitnesses to the patterns of abuse documented in this report.” They interviewed “dozens of analysts, Somali civil society activists, humanitarian workers, diplomats, medical staff, and journalists, some of whom were also eyewitnesses to the events described in this report.” HRW also “met with TFG officials including Prime Minister Nur Hassan Hussein, with ARS officials, including Sheikh Sharif Ahmed and Sharif Hassan Sheikh Aden, and with UN officials, including UN Special Representative of the Secretary-General (SRSG), Ahmedou Ould-Abdallah… European Commission officials in Nairobi.” Beyond these evidence gathering techniques, HRW is also experienced in the acquisition of aerial and ground imagery, and analysis of combat operations information regarding collateral damage, cluster munitions and time sensitive targeting as evidenced in another recent report, Collective Punishment War Crimes and Crimes against Humanity in the Ogaden Area of Ethiopia’s Somali Regional State (June, 2008).[2]

The fact of the matter is that HRW used well-established criminal investigative techniques and procedures. But implicit in the “methodological” criticism is the subtle attempt to cast aspersions on the credibility of HRW as an impartial international human rights organization and create doubt on its investigative methods. The self-serving criticism must be challenged with facts. First, it is an irrefutable fact that there are few organization in the world that have the breadth and depth of war crimes/crimes against humanity investigative experience than Human Rights Watch (and Amnesty International). In the past decade alone, HRW has extensively and repeatedly documented war crimes and gross human rights violations in every corner of the world including Rwanda, Liberia, Uganda, the Sudan, Iraq, the former Yugoslavia, East Timor, Zimbabwe, Chechnya, China, Iran, North Korea, Cuba, Sri Lanka and many other countries. Second, HRW has a stellar reputation for impartiality, neutrality, and integrity. Its reports are used in policy making by the highest legislative, executive and judicial bodies in most democratic countries in the world. Third, the countries that lash out against HRW most vociferously are countries with significant and lengthy records of human rights abuses. For instance, China has criticized HRW for preparing its country report “out of thin” air. Sudan savagely criticized HRW after it called for punitive sanctions against the top leaders in the Sudan who supervised the killing fields in Darfur. Last March Robert Mugabe dismissed a report by HRW on Zimbabwe as “rubbish”. A few months ago, Hugo Chavez threw out HRW from Venezuela, claiming that “[HRW] dressed up as human rights defenders, are financed by the United States. They are aligned with a policy of attacking countries that are building new economic models.”

Despite these transparent investigative procedures, one of the central criticisms of HRW by the Zenawi regime revolves around HRW’s unwillingness to turn over the names and addresses of the victims who gave evidence: “HRW gives no names of its informants and no addresses, though it does claim to have interviewed some people over the telephone in Mogadishu.” One can only shudder thinking about what they could do with the names and addresses of victims and informants!

What is also equally puzzling in the official statement is the regime’s emphatic assertion that, “It should be made clear that Human Rights Watch’s first time effort to expose abuses committed by Al-Shabab and other extremist forces in Mogadishu does not make its unsubstantiated allegations against Ethiopia any more credible.” Simply stated, the fact that HRW is telling the truth about Al Shabaab and the other insurgents for the first time does not mean it is telling the truth about “Ethiopian forces” this time around. Curiously, the regime’s logic compels a much different conclusion: If HRW’s evidence and allegations concerning war crimes/crimes against humanity against “Ethiopian” forces are untrue, mutatis mutandis (allowing other things to change accordingly), HRW’s evidence and allegations on Al-Shabaab and the other insurgent groups must be equally untrue. In other words, HRW’s allegations that Al Shabaab used civilians as “human shields”, it indiscriminately used mortars and remote-detonated explosive devices in populated areas, engaged in targeted killings, coerced recruitment and engaged in the use of child soldiers, etc., must also be untrue. It does not make logical sense for HRW to tell the unvarnished truth about Al Shabaab atrocities and fabricate unmitigated lies about atrocities committed by “Ethiopian” forces. As the old saying goes, what is good for the goose is good for the gander!

War Crimes

“War crimes” include a broad class of crimes under international law. There are at least four distinct categories of such crimes: 1) grave breaches of the Geneva Conventions of 12 August 1949, 2) violations of the “Laws and Customs of War”, 3) genocide and 4) crimes against humanity (large-scale atrocity directed at civilian population including murder, torture, rape, etc.) Prosecution of war crimes raise many technical, legal and procedural issues as evidenced in the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone. Some of these issues are jurisdictional, e.g. where to bring the legal action, whether to use an ad hoc tribunal or the International Criminal court. Others are logistical, e.g. how to identify, capture, arrest and transport suspects to the venue of the tribunal. Still other issues involve prosecutorial strategy, e.g. how widely to cast the prosecutorial dragnet, whether to prosecute anyone implicated in atrocities or only those most culpable and responsible, how to distinguish between leaders who gave the orders to commit war crimes from those who actually carried out the worst offenses and those whose offenses were minimal. For instance, many of these issues arose in the Rwandan case. Prosecution of more than 100,000 Rwandan war crimes suspects proved to be an impossibility. For that reason, the Rwandan prosecution focused on the planners and leaders of the genocide, those in positions of authority who authorized, aided and abetted the commission of the genocidal crimes, notorious killers and torturers and others.

The Prima Facie Case for War Crimes: Collateral Damage and Concealment Warfare

At the core of the prima facie (on its first appearance) case in the HRW allegations are two central issues: 1) criminal liability for collateral damage, and 2) lawful responses to “concealment warfare”. Collateral damage generally involves excessive injury or damage to civilians from unintentional or incidental military actions. Intentional targeting of civilians as a military objective is a war crime. Protocols I and II of the 1949 Geneva Conventions codify the principles of distinction, proportionality, necessity and humanity in assessing collateral damage for war crimes purposes. These Protocols require that military objects be distinguished from civilian ones prior to attack in a combat theater. For instance, the principle of proportionality requires that attacks on a specific military objective are impermissible if they “may be expected to cause incidental loss of civilian life or injury that would be excessive in relation to the concrete and direct military advantage anticipated.” A responsible military commander is expected to first determine if the target is a military objective, and then decide whether the collateral damage from destruction of the target is proportionate to the military advantage of destroying it. Combat planners are required to “take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life…” Similarly, the doctrine of military necessity under the Protocols requires that there be some military advantage gained from the destruction of a target. “Concealment warfare” is often used by insurgents who commingle among the civilian population and launch attacks. For instance, some insurgent groups operating in urban combat environments employ the tactic of placing the civilian population at the center of conflict in an effort to create a more favorable battle space, and maximize their survivability against forces they are unable to engage under conventional terms. Concealment warfare poses special problems for conventional forces by combining military and civilian targets in the combat theatre increasing substantially the likelihood of significant civilian casualties.

One of the key legal issues in a future Somalia war crimes prosecution is likely to be whether the commanders of the “Ethiopian” forces in launching an attack or counterattack on insurgents concealed in civilian areas knew or should have known their actions would cause excessive incidental death or injury to civilians in relation to the concrete and direct overall military advantage anticipated, but failed to take appropriate mitigating actions. Another issue of criminal liability is likely to involve command responsibility under the Additional Protocol I of 1977 to the Geneva Conventions of 1949 which provides: “The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from …responsibility … if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or about to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.” Under this provision, command responsibility liability may go well beyond the actions or omissions of “Ethiopian” military commanders on the battlefields. Indeed there are many other legal issues that could be raised in a future war crimes prosecution.

HRW’s Big Message: War Crimes and Crimes Against Humanity Will Be Punished

Over the past two decades, war crimes have been committed on a mind-boggling scale throughout the world. Most of them have gone unpunished. A year before the Rwandan genocide, the New York Times put out an editorial that began: “Commit atrocities on a large enough scale and you can get away with it.” That prophetic statement proved to be true in Rwanda in 1994 and later in other African countries. The message in the HRW report is not that the Somali war crimes suspects will be identified and prosecuted anytime soon, but rather those criminals should be on notice that the evidence is piling up against them for that day when justice will catch up with them. War criminals generally do not believe they will ever be caught by the long arm of the law. Radovan Karadzic believed as much. He became a mythical figure among some Serbs for evading arrest for war crimes for so many years. In the end, he was caught and is now facing justice in The Hague. No doubt, those who committed war crimes in Somalia will also be caught and brought to justice. But HRW’s report is important both for calling international attention to the “daily horrors of life in Somalia” and for resetting a universal tone of moral outrage so eloquently expressed over one-half century ago by Robert H. Jackson, United States Supreme Court Associate Justice and Chief Prosecutor Nuremberg Tribunals: “The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating, that civilization cannot tolerate their being ignored because it cannot survive their being repeated.” War crimes must never be tolerated!

1 http://www.ena.gov.et/EnglishNews/2008/Dec/08Dec08/75097.htm
2 http://www.hrw.org/sites/default/files/reports/ethiopia0608_1.pdf