Background to the current situationBackground to the current situation

• Conflict and Flooding: deterioration in past 3 months

• Flooding: the initial crisis (rain in November 2006: mass displacement)

• Escalating conflict after the stabilization of the flooding between Transitional Federal Government (TFG) with Ethiopian support and the Islamic Courts Union (ICU)

What has been the Humanitarian Impact?What has been the Humanitarian Impact?

– Displacement: current figure/estimate: 255,000

– Harassment and arbitrary detention

– Inability to seek asylum in Kenya

– Sexual Exploitation and Abuse/sexual violence

– Recruitment and use of children as child soldiers

What has been the Humanitarian Impact?What has been the Humanitarian Impact?

• Livelihoods, Food Security and Nutrition– 1 million people (including 400,000 IDPs) in Somalia

in acute Food and Livelihoods Crisis or Humanitarian Emergency until June 2007

– Nutrition status remains a concern (especially in South Somalia)

– As of 28 Jan, 33 deaths have been reported in Kismaayo IDP settlements due to diarrhea-related diseases. Particularly affected have been children and the elderly

Need for AU interventionNeed for AU intervention

• Security Council Resolution 1725

– “3. Decides to authorise IGAD and Member States of the African Union to establish a protection and training mission in Somalia, to be reviewed after an initial period of six months by the Secretary General with a briefing by IGAD, with the following mandate drawing on the relevant elements of the mandate and concept of operations specified in the Deployment Plan for IGADSOM”

S/Res/1725 (2006)

AU Peace and Security Council 55AU Peace and Security Council 55 thth Meeting Meeting

– “The meeting noted the AU resolutions giving IGAD the mandate to deploy IGASOM, and requested Uganda and Sudan to expeditiously mobilize forces in accordance with IGAD Summit resolution of 20 March 2006 and the approved NSSP”.

African Union Communiqué - PSC/PR/Comm(LXIX)African Union Communiqué - PSC/PR/Comm(LXIX)

• At this 69th session 19th Jan 2007, the SPC/AU adopted this resolution on the decision to deploy an AU peace support mission

– Authorised deployment for initial period (6 months)– Provide support to TFIs– Facilitate provision of humanitarian assistance– Create conducive conditions for long-term

stabilisation, reconstruction and development in Somalia

Somalia: The Cultural SettingSomalia: The Cultural Setting

What is protection?What is protection?

• Protection is first and foremost the duty of states through ensuring full access to services and enforcement of law

• When States are sometimes unwilling or unable to comply with their obligations under international law – in these circumstances humanitarian and human rights organizations are needed to provide protection.

Protection provided by non-state actorsProtection provided by non-state actors

• No Universal definition of externally provided protection:

"The concept of protection encompasses all activities aimed at ensuring full respect for the rights of the individual in accordance with the letter and the spirit of the relevant bodies of law, i.e. human rights law, international humanitarian law and refugee law. Human rights and humanitarian organizations must conduct these activities in an impartial manner (not on the basis of race, national or ethnic origin, language or gender)".

Protection continued….Protection continued….

• Child protection: protection of children from abuse, violence, exploitation and neglect.

• Protection “providers”/defenders of rights:– States legal obligations (through welfare institutions;

army/police; schools etc)– Non-State: UN, international organisations such as Oxfam, Save

the Children– Non legal obligation: communities, families etc– International peacekeepers - ?

International Legal StandardsInternational Legal Standards

• 1949 Geneva Conventions (GCs) and 1977 Geneva Protocols (GPs)

• 1989 UN Convention on the Rights of the Child

• Optional Protocol to the CRC on the Involvement of Children in Armed Conflict

• Convention on the Elimination of the Worst Forms of Child Labor, ILO Convention 182

• African Charter on the Rights and Welfare of the Child

• Rome Statute of the International Criminal Court

• UN Convention on the Status of Refugees (1951) and additional protocols

IHL: What are the Geneva Conventions?IHL: What are the Geneva Conventions?

• The first Geneva Convention of 1864

• In 1949 the Conventions were revised and expanded: – 1st Convention: wounded soldiers on the battlefield  – 2nd Convention: Wounded and shipwrecked at sea  – 3rd Convention: Prisoners of war  – 4th Convention: Civilians under enemy control

• In 1977 two Additional Protocols were added:  – 1st Protocol: International conflicts  – 2nd Protocol: Non-international conflicts

• In 2005 Additional Protocol III was adopted: 3rd Protocol: Additional distinctive emblem

What does it seek to do?What does it seek to do?

• International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict.

• "Humanitarian law remains the most effective legal framework… because it was developed specifically to balance States’ security needs and the need to protect human life and basic rights…"

Where does it apply?Where does it apply?

• International humanitarian law applies to armed conflicts. It does not regulate whether a State may actually use force; this is governed by an important, but distinct, part of international law set out in the United Nations Charter.

• IHL has been ratified by 194 states and enjoys universal acceptance (Uganda in 1964 and Somalia in 1962)

Practical examples of IHL standardsPractical examples of IHL standards

• One of the key principles of international humanitarian law is the prohibition on intentionally directing attacks against civilians, including children.

• Additional Protocol provides that “children shall be the object of special respect and shall be protected against any form of indecent assault”.

• Additional Protocol II requires parties to the conflict to provide children with the care and aid they require, including education.

• The Fourth Geneva Convention and the Additional Protocols regulate the evacuation of children, identification, family reunification and care of unaccompanied children, and the treatment of detained children.

More Practical examples….More Practical examples….

• Article 27 provides for the protection of girls and women from “attacks on their honour”.

• POWs must at all times be treated humanely (Art. 13 GCIII). GCIII obliges the Detaining Powers "to treat alike all POWs "without any adverse distinction based on race, nationality, religious belief or political opinions" (Art. 16 GC III).

• Children who have not attained the age of 15 years, who take a direct part in hostilities and fall into the power of an adverse Party, “shall continue to benefit from the special protection accorded by this Article (Art. 77 API ), whether or not they are prisoners of war.”

UN Convention on the Rights of the ChildUN Convention on the Rights of the Child

• The convention sets out a wide range of human rights – civil, economic, social, cultural, and political rights, (including both human rights law and humanitarian law), as applied to children.

• A child is defined in the convention as any individual under 18 years of age (Art.1).

Provisions particularly relevant to children in Provisions particularly relevant to children in conflict situationsconflict situations

– Non-discrimination– Best interest of the child– Evolving capacities– Right to life– Participation– Regarding the importance of the family– Protection from violence and exploitation, including sexual

exploitation– Protection from hazardous work– Refugee children– Prohibition on torture and other ill-treatment– Protection of children in armed conflict– Rehabilitation after conflict– Administration of juvenile justice

Optional Protocol to the CRC on the Optional Protocol to the CRC on the Involvement of Children in Armed ConflictInvolvement of Children in Armed Conflict

• Prohibits compulsory recruitment into the armed forces of persons under 18 years of age

• Prohibits the direct participation in hostilities of members of armed forces who have not reached the age of 18 years

• Raises the age for voluntary recruitment into armed forces to the minimum age of 16

• Prohibits voluntary or compulsory recruitment into armed groups or use in hostilities or persons under the age of 18 years.

• Discussion: is this protection enough?

ILO Convention 182ILO Convention 182 For the purposes of this Convention, the term " the worst forms of child

labour" comprises:

– ( a ) All forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict;

– ( b ) The use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances;

– ( c ) The use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties;

– ( d ) Work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.

African Charter on the Welfare and Rights of the African Charter on the Welfare and Rights of the ChildChild

• The African Charter on the Rights and Welfare of the Child  (the Charter) was adopted by the Organisation of African Unity (OAU) Assembly on 11 July 1990 and entered into force on 29 November 1999.

• It is a second global and first regional binding instrument that identifies the child as a possessor of certain rights and makes it possible for the child to assert those rights in domestic, judicial or administrative proceedings.

Three Principle ObjectivesThree Principle Objectives

• Survival Provisions and Development. Children’s basic needs for subsistence and development must be secured.

• Protection. Children’s physical, moral and spiritual integrity must be protected from different forms of harmful treatment.

• Participation. The possibilities for children to participate in social, political and economic processes should be improved.

Statute of Rome & The International Criminal Statute of Rome & The International Criminal CourtCourt

• The Rome Statute, which is the constitutive instrument for the permanent International Criminal Court (ICC)

– Genocide (the intent to destroy the group in whole or in part )

– Crimes against humanity (Examples include murder, extermination, enslavement, torture: others?)

– War crimes (recruitment of children under the age of 15 years, rape)

UN Convention on the Status of Refugees (1951) UN Convention on the Status of Refugees (1951) and additional protocolsand additional protocols

• The 1951 Refugee Convention

• The 1951 Convention relating to the Status of Refugees is the key legal document in defining who is a refugee, their rights and the legal obligations of states.

• The 1967 Protocol removed geographical and temporal restrictions from the Convention.

Protection for Internally Displaced PersonsProtection for Internally Displaced Persons

• Internally displaced persons are "persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalised violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognised State border." (Guiding Principles on Internal Displacement, Introduction, para. 2)

• Deng’s Guiding Principles on Internal Displacement

Circumstances requiring International InterventionCircumstances requiring International Intervention

• Conflict and political unrest • Poverty• State unable/unwilling to meet needs of civilians• Total collapse due to natural disaster

• In Sri Lanka alone, a total number of 95 INGOs and over 6000 NGOs are presently registered under the Ministry of Social Services and Social Welfare

• Currently, there are 15 UN DPKO and 1 AU peacekeeping operations

Role of Aid AgenciesRole of Aid Agencies

• Provide essential and life saving services (water, food, sanitation, health, livelihoods, protection, non food items)

• humanitarian agencies are bound by principles of neutrality, impartiality and independent action in the conflict situations - foregoing political engagement in order to safeguard access for humanitarian assistance

• The nature of this is captured in the idea of 'humanitarian principles', which derive from international humanitarian law.

Key Humanitarian PrinciplesKey Humanitarian Principles

The humanitarian imperative is that:

* All possible steps should be taken to prevent or alleviate human suffering arising out of conflict and that civilians have a right to protection.

* Agencies should act on the principles of humanity and neutrality.

* The humanitarian charter affirms: the right to life with dignity; the distinction between combatants and non-combatants; the principle of non-refoulement.

Civil Military RelationsCivil Military Relations

The Inter Agency Standing Committee Guidelines stress:

* Operational independence of humanitarian action.

* Security of humanitarian personnel – the deliberate killing of humanitarian staff is a war crime under the Rome ICC statute.

* Free and unhindered access to vulnerable populations.

* Humanity, neutrality and impartiality.

** DO NO HARM – assistance must not engender further conflict (as relief assistance has done in Somalia, South Sudan).

Civil Military RelationsCivil Military Relations

* Avoid reliance on the military for delivery of humanitarian assistance.

* Option of last resort – only where the use of military support can meet a critical humanitarian need

* Military decisions are based on a command structure. Humanitarian decisions are based on consensus (particularly NGOs).

* A clash of cultures between the military and the humanitarian agencies is not unusual – often caused by mutual ignorance.

Responsibilities of peace keepersResponsibilities of peace keepers

• “In situations of International and non international conflict, members of military units taking part in a peace operation must respect international humanitarian law when thy are actively engaged in armed confrontation against a party to the conflict. When they are not, they are considered civilians….for each contingent, humanitarian law applies according to the international obligations of each troop contributing country”

(International Committee of the Red Cross)

Under the Code of Conduct (AMIS)Under the Code of Conduct (AMIS)

• Local Laws. Members should respect all local laws and those of neighboring states that they visit on duty, or when on leave

• The Constitutive Act of the African Union requires that all personnel must maintain the highest standards of integrity and conduct

• We will comply with the Guidelines on International Humanitarian Law for forces undertaking African Union Peacekeeping Operations

(African Union Mission in Sudan)

Constitutive Act of the African UnionConstitutive Act of the African Union

Article 3 • (h) promote and protect human and peoples' rights in accordance

with the African Charter on Human and Peoples' Rights and other relevant human rights instruments;

Article 4• (l) promotion of gender equality;

(m) respect for democratic principles, human rights, the rule of law and good governance;(n) promotion of social justice to ensure balanced economic development;

AMISOM under IHRL/IHLAMISOM under IHRL/IHL

TREATY UGANDA SOMALIA

CRC 1990 1990*

CRC OP 2002 2002*

ILO 182

1951 Refugees 1976 1978

IHL 1964 1962

African Charter 1986 1985

ICC/Rome Statute 2002

Case Study One: Lack of Humanitarian AccessCase Study One: Lack of Humanitarian Access

• Aid agencies have had reports of severe malnutrition in IDP settlements outside Kismayo due to the fact that there has been a particularly severe level of diarrhea among 0-5 children. They wish to conduct an assessment from Dollo, where they are based. However, the local Warlords have stated that if they see any agencies driving through their territory between these two towns, they will ambush them. In the past, ambushes along that road have resulted in robbery and deaths. Because of this, the agencies are denied access due to the increase in threats directed at them.

Case Study Two: Not respecting local cultureCase Study Two: Not respecting local culture

• An Aid Agency moves into a very remote area previously closed to agencies in Southern Somalia. John, the head of the office after a while, become acquainted with a local warlord. The warlord visits the compound one evening and suggests that he knows a way that John can obtain alcohol – through the nearest AU base that often cross over the Kenyan/Ethiopian border. He arranges for a meeting for John with one of the AU staff, who agrees to procure alcohol for him the next time he goes to Kenya/Ethiopia.

Case Study Three: attacks against civiliansCase Study Three: attacks against civilians

• During the past week mortar attacks have continued almost on daily basis triggering the displacement of several hundred people. The attacks have left several civilians killed or wounded including women and children.

• The main targets for attacks seem to be Villa Somalia, Seaport and hotel Kah where the national reconciliation conference is convening. On Friday 12 February a mortar attack left 3 killed and 6 wounded. The latest attack took place today in eastern Mogadishu near Tarbunka square and 6 IDPs were reportedly wounded as a result. (15 Feb)

Case Study Four: Detention of civiliansCase Study Four: Detention of civilians

• The Somali government forces have incarcerated nearly 10 traditional elders in the district of Afmadow. Visits by local human rights monitors have reported that some of them are showing visible signs of maltreatment.

• The elders reportedly failed to identify and hand to the government the local militia who are supposed to report at the government army training camps in Lower Jubba province. The elders have been accused of ignoring the governments order to gather and send local militia (in 25 days) to the government training bases.