Kenya: Human Rights Concerns of Operation “Linda Nchi”

Dear Hon. Haji:

I am writing on behalf of Human Rights Watch to raise concerns regarding possible violations of international humanitarian law and human rights law by elements of the Kenyan armed forces during Operation “Linda Nchi.”

Human Rights Watch researches violations of human rights and the laws of war by governments and non-state armed groups in more than 80 countries around the world. We raise our concerns with the responsible parties and with other concerned actors. For all abuses, we press for justice and accountability.

One focus of Human Rights Watch’s work is the protection of civilians during armed conflict. International humanitarian law (the laws of war) seeks to minimize civilian casualties during armed conflict, and prohibits deliberate and indiscriminate attacks against civilians. It applies to all parties to a conflict, both government forces and non-state armed groups. The protection of basic civil and political rights under international human rights law must be assured in times of conflict as in times of peace.

We are concerned about possible violations of international humanitarian and human rights law by Kenyan armed forces during three incidents connected to Operation Linda Nchi. We wish to know what steps the Kenyan government is taking to investigate the incidents and its response in the event of any finding of wrongdoing.

We would appreciate your response to the questions raised below.

On October 30, 2011, the Kenyan air force carried out an attack with aerial bombardment that struck an Internally Displaced Persons (IDP) camp on the outskirts of the town of Jilib in Somalia. The international humanitarian organization Médecins sans Frontières reported treating 45 wounded people, including 31 children, and confirmed five civilian deaths following the aerial bombardment.

I. Possible Unlawful Attack in Jilib, Somalia

On November 1, Kenyan Armed Forces spokesperson Maj. Emmanuel Chirchir stated that the Kenyan air force attack at Jilib had only killed members of the Islamist militant group al-Shabaab. A Department of Defence statement claimed that any civilian casualties might be due to the fact that “[u]pon the aerial attack an Al Shabaab driver drove off a technical battle wagon … [that] exploded while at the camp causing the reported deaths and injuries.” However, a civilian wounded in the attack told Human Rights Watch that she had seen a dark green plane drop one bomb on the camp. She said the plane then turned around, came back and dropped another bomb on the camp that wounded her, and started firing machinegun rounds.

International humanitarian law requires all parties to an armed conflict to only target combatants and never civilians. Attacks that do not distinguish between combatants and civilians are indiscriminate, and are a serious violation of the laws of war. Civilians have reported that al-Shabaab members were expected at the IDP camp. But a camp resident told Human Rights Watch that al-Shabaab members were not present at the time of the bombing as they were praying at a mosque in Jilib town, along with many of the town's male residents. Al Shabaab unlawfully places civilians at risk whenever they place their fighters inside the IDP camp. However, under the laws of war this would not justify indiscriminate bombing of the camp by Kenyan forces.

On November 2, Prime Minister Raila Odinga publicly promised that there would be investigations into any civilian deaths that occurred as a result of the military operation. Governments have a responsibility to investigate credible reports of violations of international humanitarian law and appropriately prosecute those responsible.

1. What investigations have the Kenyan armed forces undertaken thus far into possible violations of the laws of war that occurred in the Jilib IDP camp as a result of the military operation?

2. What steps have been taken to hold accountable any military personnel found to be responsible for serious violations of the laws of war and to prevent such violations in the future?

3.What compensation is the Kenyan government planning on offering to civilians for loss of life, injury, and property damage if investigations determine Kenyan responsibility for unlawful attacks?

4. More generally, what precautions are the Kenyan forces taking during their military operations to ensure compliance with international humanitarian law? What training in international humanitarian law have the Kenyan forces engaged in Somalia received?

II. Possible Unlawful Attack near Kiunga, Kenya

On the night of November 3 the Kenyan navy intercepted a fishing boat near Kiunga, on the Kenyan coast near the Somalia border. According to research conducted by the Muslim Human Rights Forum (MHRF) and shared with Human Rights Watch, the fishing boat voluntarily came to shore. Navy personnel searched and interrogated the persons on the fishing boat. The passengers, all of whom were Kenyans from Ngomeni, explained that they were returning from two months at sea, and had been carried by the tides toward Somalia, but were trying to make their way back to Ngomeni, near Malindi. The navy instructed the fishing boat to remain anchored for the night and promised to escort it to Ngomeni the next morning. At approximately 1 a.m. on November 4, the navy ship approached and fired on the fishing boat, which remained anchored off the shore of Kiunga.

According to MHRF, four civilians were killed, all of them elderly Kenyans: Mohamed Masuo, 85, Haji Omar Mote, 73, Isa Yusuf, 61, and Salim Chechemeyo, 60. The remaining fishermen swam to shore and were detained by the Kenyan armed forces at Ishakani. At least two of them had gunshot wounds. At the army base, they were allegedly severely beaten by Kenyan military personnel before being transferred to police custody and eventually released.

This account calls into question the version of events put forward by the Ministry of Defence. According to a statement by Major Chirchir on November 4, the fishing boat was fired upon after it refused an order from the navy ship to stop for identification.

International humanitarian law applies at sea and prohibits deliberate attacks on civilians. It requires that warring parties take all feasible precautions to ensure that objects attacked are valid military targets. International human rights law, which was also applicable, permits the use of lethal force outside of zones of armed conflict only when it is strictly and directly necessary to save human life.

1. What investigations, if any, have been undertaken into the conduct of navy personnel on the navy ship that fired on the fishing boat near Kiunga? Have any navy personnel been disciplined or otherwise held accountable?

2. What investigations have been undertaken into allegations of mistreatment of fishermen detained at Ishakani?

3. What compensation is the Kenyan government planning on offering to civilians for civilian loss of life, injury, and property damagefor unlawful attacks or use of force?

III. Possible Arbitrary Detention and Mistreatment in Garissa, Kenya

Human Rights Watch has received reports that Kenyan military personnel have been engaged in arbitrary detention and ill-treatment of civilians in Garissa, near the Somali border. A witness told Human Rights Watch that on November 11, military personnel detained individuals solely on the basis of their Somali appearance. The witness saw military personnel picking up suspects at pubs around Garissa, including DRC Pub and Locus; he later drove to Town Club and saw military personnel detaining additional suspects there, as well as pulling drivers out of taxis. The witness stated that those picked up by military personnel were forced to sit in mud and dirty water outside these locations. According to the witness, a number of them were beaten by military personnel while being interrogated. Most were then released after interrogation, but some were detained. The witness also heard reports that people were detained and beaten in Village Takwa.

Both international humanitarian and human rights law prohibits discrimination on the basis of ethnicity and national origin. Detention on such a basis is a violation of international law, as is all mistreatment of persons in custody.

1. On what legal basis did the military detain and interrogate civilians at Garissa?

2. What investigations have been undertaken into allegations of mistreatment of detained persons in Garissa?

3. What compensation is the Kenyan government planning on offering to civilians for injury from mistreatment?

The Kenyan Armed Forces have an international legal obligation to conduct any and all operations, both within and outside of Kenya, in accordance with international human rights law and international humanitarian law. Human Rights Watch will continue to monitor the situation in Kenya and Somalia in order to promote compliance with international law by all parties to the conflict. We would greatly appreciate your response to these questions.

Yours sincerely,