August 1, 2012 · 0 Comments
By Stephen Roblin:
In its July 18th paper, the New York Times included a Reuters brief on the recently leaked report by the UN Monitoring Group on Somalia and Eritrea. Out of all the findings in the report, the brief focused only on “the ‘climate of impunity’ enjoyed by pirate kingpins in Somalia and abroad,” a consequence of inaction from “international authorities” and “high-level protection from Somali authorities,” including the president of the Transitional Federal Government (TFG), Sharif Sheikh Ahmed.
Somalia’s “climate of impunity” however is far more pervasive than the New York Times would have its readers believe. Indeed, the scant coverage enitirely overlooked the leaked report’s major finding: that non-compliance with the long-standing Somali arms embargo “has become a growing problem” during the last year, though the “pattern of arms embargo violations . . . has changed little over previous years.”
The arms embargo has been so widely and blatantly disregarded that the Monitoring Group described this “pattern” as an “international norm of non-compliance.” With only one exception, perpetrators of this criminal norm have gone entirely unpunished. Not surprisingly, the nations who have enjoyed impunity are responsible for the “growing problem.”
From the conditions of the arms embargo spelled out in various UN Security Council (UNSC) resolutions, the Monitoring Group has distinguished between two types of non-compliance: “technical” and “substantive.”
UNSC resolutions 1744 and 1772 (2007) stipulate that arming, equipping and training Somali “security sector institutions” by member states is eligible for exemption to the embargo on the condition that the UNSC committee is notified “in advance and on a case-by-case basis” and grants authorization. The Monitoring Group accepts a loose interpretation of Somali “security sector institutions” that includes Somali factions formally aligned with the TFG, in addition to the TFG’s own security forces. Any arming, equipping or training of Somali forces that does not meet this condition constitutes a technical violations of the embargo.
Substantive violations differ in that they are “contraventions of the embargo that would under no circumstances be eligible for exemptions.” The Monitoring Group has made clear that foreign military operations on Somali soil fall into this category. The only “foreign” military force exempt from the embargo is the African Union Mission in Somalia (AMISOM), the regional “peacekeeping” force that has defended the TFG against Al Shabaab since 2007.
The principal violators of the embargo have been Ethiopia, Kenya, Eritrea, and the United States. Yet, only Eritrea has been subject to international sanction, a consequence not of criminal conduct per se, but rather choosing the wrong side.
Eritrea was among a number of governments that provided military support to the Union of Islamic Courts (UIC), which, after overthrowing Somali warlords, took control of Mogadishu and the surrounding region in June 2006. Six months later, the highly popular UIC was ousted by an illegal U.S.-backed Ethiopian invasion. Eritrea continued to support the former military wing of the UIC, Al Shabaab, which was the primary Somali force fighting the foreign occupation. Eritrea was sanctioned by the UNSC in December 2009, in part, for its ongoing provision of arms, equipment, and training to Al Shabaab.
Meanwhile, Ethiopia and Kenya – both regional clients of Washington – have shown zero regard for the arms embargo. They’ve committed technical violations through arming and training Somali proxy forces nominally under TFG’s command without notifying and receiving approval from the sanctions committee. More crucially, substantive violations committed by both countries have been documented.
For example, in February 2011, the TFG and AMISOM spearheaded a military offensive against Al Shabaab that was supported militarily by Ethiopian and Kenyan forces and their proxies. According to Human Rights Watch, in March of that year Ethiopian forces shelled the southern Somali town of Bula Hawo. Kenyan troops were allegedly present. Throughout March and into early April, Kenyan tanks and artillery shelled the town of Dhobley from the Kenyan side of the border, severly damaging a hospital, Human Rights Watch reports. The Monitoring Group corroborated the presence of Kenyan military operations in Dhobley during March.
With the exception of Eritrea, whose crimes have recently declined, the traditional violators of Somalia’s long-standing arms embargo have amped up their interventionist policies this last year.
The escalation was triggered by Kenya’s decision to invade southern Somalia in October 2011. As a pretext for an intervention that had reportedly “been in the pipeline for a while,” Nairobi relied on the series of kidnappings that took place inside Kenya in September and early October of that year, claiming Al Shabaab was responsible. The government has yet to provide a shred of evidence in support of this allegation. Crucially, Al Shabaab’s potential culpability is a moot point. Kenya had already forfeited its right to invoke Article 51 of the UN Charter as justification for the invasion, due to its military aggression carried out prior to the kidnappings.
In November, Ethiopia followed suit by carrying out large-scale military operations in central Somalia. Djibouti also contributed to the international military campaign against Al Shabaab by contributing 100 troops to AMISOM in December 2011.
The leaked Monitoring Group report weighs in on the legal status of all three nations’ conduct.
Regarding Kenya’s invasion, the report states,
Notwithstanding Kenya’s invocation of Article 51 of the UN Charter, it is the assessment of Monitoring Group that the intervention of KDF armed forces in Somalia constituted, for a finite period, a violation of the general and complete arms embargo. Kenyan forces not only introduced arms, ammunition, vehicles and military equipment into Somali territory without prior authorization from the Committee, but also provided direct support to allied Somali militia forces.
In an attempt to give legal cover for the criminal invasion, the African Union decided to “rehat” Kenyan forces and place them under the auspices of AMISOM. The Kenyan Cabinet approved the decision on December 6. In the view of the Monitoring Group, “rehatting” foreign forces would bring “military operations into compliance with the arms embargo,” due to “the exemption granted to AMISOM under resolution 1772 (2007).” However, the report points out that it was not until June 2, 2012 when Kenya and the AU signed an MOU “integrating Kenya Defence Forces into AMISOM’s command and control structure.” Thus, “between 16 October 2011 and 2 June 2012, the KDF operated independently of AMISOM and were not eligible for this exemption,” placing Kenya’s invasion in substantive violation of the embargo.
Addis Ababa refused to “rehat” its military forces. Instead, the government formally announced in April 2012 that it would hand-over occupied territories to AMISOM. The Monitoring Group made clear its position on the Ethiopian incursions:
At the time of writing, the ENDF was still operating in southern and central Somalia. The Monitoring Group has also observed movements of military aircraft operated in the Somali airspace by the Ethiopian Air Force . . . . The ENDF are not operating under AMISOM auspices and therefore do not benefit from the exemption established by Security Council resolution 1772 (2007). It is therefore [the] assessment of the Monitoring Group that the presence in Somalia since November 2011 of the Ethiopian National Defence Force and Air Force constitute a violation of the general and complete arms embargo on Somalia. 
Regarding Djibouti’s status, the Monitoring Group writes,
at the time of the deployment of the Djiboutian army in Somalia, the new AMISOM strategic concept of operations had not yet been approved by the Peace and Security Council of the African Union. It is therefore the assessment of the Monitoring Group that the Djiboutian deployment represented a violation of the arms embargo on Somalia between 20 December 2011 and 5 January 2012.
In short, all three nations pursued military operations without legal justification for the right to force on Somali soil. A case can therefore be made that they are guilty of foreign aggression—the “supreme international crime” in the determination of the Nuremberg Tribunals.
The New York Time’s single report on the leaked document bypasses these facts. It also avoids mentioning any connection between Washington and the “international norm of non-compliance.”
There are numerous documented cases of U.S. airstrikes in Somalia—actions that fall squarely in the category of “substantive violations” of the arms embargo. For example, the Bush administration carried out strikes in January 2007 that may have killed some 70 people and destroyed vital water resources in Afmadow district. Airstrikes were also carried out in March and May 2008, the latter killing militant leader, Aden Hashi Ayro.
The Obama administration has also reportedly conducted strikes. In July 2011, Jeremy Scahill from The Nation documented two cases: a drone strike near the port city of Kismayo on June 23 and three more strikes at Al Shabaab training camps on July 6. Scahill explains how the “emerging US strategy” in Somalia is based largely on “unilateral strikes,” carried out “without the prior knowledge of the [Somali transitional] government.”
The emerging strategy also involves surveillance operations performed by drones and the CIA training of Somali intelligence agents and operatives, with the aim of building “an indigenous strike force capable of snatch operations and targeted ‘combat’ operations against members of Al Shabab,” Scahill writes. He reports further that in the basement of Somalia’s National Security Agency headquarters the CIA has constructed a secret prison—what has been called an “out-sourced Guantanamo Bay in central Mogadishu”—where individuals with alleged ties to Al Shabaab are interrogated and likely tortured.
The leaked document cites Scahill’s report and others that describe targeted assassinations performed by U.S. “Unmanned Aerial Vehicles” (UAVs). The Monitoring Group considers UAV operations to be of an “exclusively military” nature, even if only for surveillance. As is standard practice for the Monitoring Group, it softens its language when it comes to U.S. crimes, describing these operations as a “potentialviolation of the arms embargo” (my emphasis).
New York Times readers could have judged for themselves the criminal potential of U.S. military actions in Somalia had the coverage of the leaked document not been restricted to the Somali piracy scandal (while, incidentally, ignoring the maritime crimes committed against Somali society, like illegal fishing and toxic waste dumping). Restricting coverage in this way also obscures broader legal and moral questions that should arise immediately from examining the available evidence, such as whether recent U.S. interventionist policies in Somalia constitute international terrorism. There’s potential here as well, once one accepts a literal definition of terrorism.
It’s crucial to note that the military actions of the U.S. and its regional clients possess more than just legal significance. Indeed, the past year (and before) reveals a rather clear relationship between criminal conduct inside Somalia and the worsening of the country’s humanitarian catastrophe.
The consequences of the multinational intervention led by Kenya and Ethiopia have been well documented. During most of this last year, Somalia was in the grips of an epic famine. Military operations added to the horror by generating thousands of additional IDPs and refugees and restricting humanitarian relief organizations’ access to huge swaths of Somali territory. The invasion has had an additional predictable outcome: Al Shabaab increased its terror and other crimes, such as forced recruitment of child soldiers.
Much more can be said about this horrific period in Somalia’s ongoing human tragedy. But the facts raised here should help us identify both the perpetrators and victims of the country’s “climate of impunity.”
 UNSC, Report of the Monitoring Group on Somalia and Eritrea pursuant to Security Council resolution 2002 (2011), Advanced Copy – Confidential, 7 and 24. From here, the documented is cited as “Leaked Report.” For a copy of the report, see www.somaliareport.com/downloads/UN_REPORT_2012.pdf.
 UNSC, Report of the Monitoring Group on Somalia pursuant to UNSC resolution 1811 (2008), S/2008/769, 10 December 2008, 34.
 Somaliland and Puntland security institutions are also eligible for exemption. See UNSC, Report of the Monitoring Group on Somalia and Eritrea pursuant to UNSC resolution 1916 (2010), S/2011/433, 18 July 2011, 51.
 UNSC, Report of the Monitoring Group on Somalia pursuant to Security Council resolution 1853 (2008), S/2010/91, 10 March 2010, 47.
 Ibid, 53.
 See S/2011/433, 51, 250, and 251.
 “‘You Don’t Know Who to Blame’: War Crimes in Somalia,” August 2011, 20 and 21.
 Ibid, 22.
 S/2011/433, 250.
 For more on Kenya’s justification for the invasion of Somalia and the legal status of the intervention, see my “Kenya’s Criminal Assault on Famine-Stricken Somalia,” Truthout, December 18, 2011,http://truth-out.org/index.php?option=com_k2&view=item&id=5492:kenyas-criminal-assault-on-faminestricken-somalia.
 Leaked Report, 230-2.
 Ibid, 229.
 Ibid, 228-230.
 Ibid, 231.
 Ibid, 232.
 See the Oxfam press release cited in Ted Dagney’s “Somalia: Current Conditions and Prospects for a Lasting Peace,” Congressional Research Service, December 16, 2010, 16.
 Leaked Report, 232.
 For more on the politicization of piracy, see Abdi Ismail Samatar, Mark Lindberg, and Basil Mahayni, “The Dialectics of Piracy in Somalia: the rich versus the poor,” Third World Quarterly, 31:8, 2010 and Suzanne Dershowitz and James Paul, “Fishermen, Pirates and Naval Squadrons,” Global Policy Forum, February 2012.
 See “A Shift in Focus: Putting the Interests of Somali people first,” Oxfam, February 2012; and United Nations Office for the Coordination of Humanitarian Affairs (OCHA), “Somalia – Famine & Drought,” Situation Report No. 21, 8 November 2011.
 According to the leaked Monitoring Group report, “Al-Shabaab’s recruitment methods are the most coercive, and have become increasingly aggressive since 2011, as the group has faced mounting military pressure from foreign military forces and their Somali allies” (329).