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The Failure of Judicial Protection and the Institutionalization of Collective Punishment

Enforcing the Law

Legal protections are routinely flouted in Somali Region, even where the regional judiciary attempts to enforce the rights of those who have been detained or mistreated. While there are a range of factors contributing to the lack of independence and enforcement power of the judiciary, including corruption and insufficient capacity, the most significant and damaging reason remains the supremacy of the security forces, particularly the federal security forces and their regional allies within the administration.  “It’s ridiculous to say there’s an independent judiciary in our region,” a former regional judge told Human Rights Watch. “All of the region is under emergency rule. The military has the last word on all matters, whether administrative or humanitarian.”²⁰³

Even regional government officials have little or no power to enforce the law or protect themselves from abuses by federal security forces. A former government employee detained in 2004 and again in 2005 after trying to stand as an independent candidate for the regional parliament, told Human Rights Watch how he had been unable to secure his legal rights while in military detention:

In [March 2005], I was detained from work and taken to one of the [military bases] in [place withheld]. According to the constitution, a person cannot be held for more than 48 hours without being charged. When I was detained for over two months, I wrote a letter to my colleagues at the regional administration, asking them to charge me or to release me. The head of the police in [place withheld] told me that he received my letter but would not pass it on to the administration.²⁰⁴

A judicial official expressed deep frustration at the lack of independence of the courts and regional institutions, noting that even when the regional courts issued release orders, they were often ignored. He said, “If [the federal government] followed the law it would be good, but even the law they’ve created is not being followed.”²⁰⁵

Another former judge from Somali Region told Human Rights Watch he ordered the release of a group of detainees arbitrarily accused of being ONLF supporters, only to find himself detained on the orders of a high-ranking regional official. He explained how accusations of ONLF involvement were frequently used to settle political power struggles:

Whenever the ONLF carried out operations, the government doesn’t differentiate between the ONLF and civilians [in its response]. They don’t do this deliberately, they are just confused as to who is who. So, the ONLF issue is exploited for political means. Someone identifies others as ONLF, and those persons get arrested, so accusing people of being ONLF becomes a way to settle disputes.²⁰⁶

While the vast majority of detainees appear to be arrested for perceived connection to the ONLF or because of the use of this allegation to settle scores, there are several other explanations given for some of the numerous arbitrary arrests and prolonged detentions without charge in Somali Region. Among these is the justice system’s general lack of capacity to handle the scale of cases.

Even where detainees have been charged with a criminal offense, an additional constraint on their ever being brought to court is the legal jurisdiction over “security” cases and lack of capacity within the police and judicial systems, which results in a serious backlog in the judicial review of detention cases. According to a former judge, until three years ago the regional courts were able to exercise jurisdiction over security cases, but this changed with a federal proclamation that established federal high courts in a number of states, including Somali Region.²⁰⁷  However the only federal high court in the vicinity of Somali Region is in Dire Dawa and it is difficult, if not impossible, for many detainees to travel there, due to lack of means, insecurity, and other reasons. “There is no budget for witnesses or for investigation support, for instance for transporting witnesses to court,” a government official told Human Rights Watch. The lack of judicial capacity is echoed in the police force, where many police lack training in conducting investigations and, as a former member of the judiciary said to Human Rights Watch, “[The] police can’t even finalize a file for prosecution.”²⁰⁸

While lack of capacity may indeed be a factor delaying the judicial process for some detainees, it is no barrier in politically motivated cases. Detentions and manipulation of judicial processes are used to further personal rivalries, score-settling and revenge.  In a case that exemplifies the absence of judicial independence, Jijiga’s regional court on May 12, 2008 sentenced two high profile defendents, Suldan Fowsi Mohammed Ali and Ibrahim Haad, to 22 and 16 years in prison respectively, despite the court’s lack of jurisdiction over security cases.²⁰⁹ Suldan Fowsi, a traditional elder who helped negotiate with the ONLF for the release of the Chinese oil workers in April 2007, was arrested on August 28, 2007 prior to the UN assessment mission’s arrival (see above). Initially he was held in incommunicado detention in one of Jijiga’s military camps, but was then transferred to “Jail Ogaden” in October 2007, where he has since been detained. In May 2008 he was reportedly charged with responsibility for the May 2007 grenade attacks in Dhagahbur and Jijiga, although Human Rights Watch has not been able to obtain the precise details of the charges against him.²¹⁰  

Credible sources told Human Rights Watch that the federal court in Dire Dawa had requested that the case be transferred several times, but members of the regional administration refused.²¹¹ Aside from jurisdictional questions, the trial appears to have fallen well short of the due process guarantees required by Ethiopian and international law. Among other concerns, Suldan Fowsi had no legal counsel and was denied the opportunity to defend himself.²¹²

Corruption is also a factor at the lower wereda and kebele administrative levels. According to a former judge, regional officials apparently receive a budget allocation based on the numbers of prisoners, creating an incentive for higher numbers of detainees.²¹³ Detainees also routinely report having to pay bribes of 1,000 to 5,000 Ethiopian Birr (about US$110 to $550 in early 2008) to police and military for their release, creating a substantial incentive for security forces to keep individuals in detention.²¹⁴

Authorizing Collective Punishment

In August 2007 the regional parliament of Somali Regional State unanimously endorsed two decisions that are not only discriminatory on their face, violating Ethiopian and international human rights law, but  amount to institutionalized collective punishment of communities perceived to support or sympathize with the ONLF.

One law penalizes families and clans of ONLF members and requires that they pay compensation for the lives of any individuals killed by the ONLF:

…if any person who is a member of anti-peace ONLF kills another person, his clan or immediate family will be held responsible to pay compensation for the loss of life. On the other hand if the dead is an ONLF member, no compensation will be paid to his family; and no one could be held responsible for his death.²¹⁵

There is a long tradition of clan compensation (diya or “blood money,” usually in the form of livestock) for violations of Somali customary law, known as xeer. The parliamentary decision passed by the regional parliament manipulates the element of communal responsibility involved in the xeer system. It penalizes entire communities for the actions of some individual members, regardless of whether the families or sub-clans have any control over those individuals.

As this report has described, when there is any suspicion of even the vaguest connection to the ONLF, individuals in Somali Region are already at great risk of being subjected to serious human rights violations, including extrajudicial executions, rape, torture, and arbitrary detention. The parliamentary provision effectively formalizes the economic attacks and punishment of communities, and the additional language noting that ONLF members’ deaths will not be compensated reinforces the understanding that the provision is not about compensation—it is about punishment.

The decision also subverts the xeer because ordinarily xeer cases proceed according to a process that includes investigation by the aggrieved party, the mediation or arbitration of a dispute by respected elders who essentially act as judges, and a procedure whereby pleas of guilt and innocence and examination of the evidence take place. The parliamentary decision, in contrast, can easily be used to target individuals, families, and communities on personal or political grounds; indeed, in the course of this research Human Rights Watch heard many descriptions of the ways in which allegations of ONLF connections are already manipulated in this way.

The second parliamentary decision provides for the suspension of all state budget allocation to administrative areas where the ONLF is active. It states:

In the allocation of the capital budget, no budget should be allocated for the districts where the anti-peace elements [ONLF] operate. For districts where the anti-peace elements do not operate, their budget should immediately be released and should be higher than the former, so that the former districts follow their example.

Penalizing whole districts in this manner is blatantly discriminatory. The decision was implemented against certain weredas in late-2007, but it is unclear whether it continues to be implemented. The very existence of such legislation indicates that the intent of key regional and federal policymakers is to actively and comprehensively impose collective punishment on communities in a manner that violates fundamental legal norms.