Defining genocide and humanitarian intervention in international law

Humanitarian Intervention in Somalia (1990)

What is genocide?

When it comes to genocide there is a lot of disagreement amongst legal scholars as to what is enough to qualify as genocide. But basically genocide is described as the logical, structured, planned attack or in other words the deliberate destruction of a national, religious, racial or ethnic group. The said destruction could be in whole or in part. Scholars of the legal system have long since debated as to what is enough so as to qualify as genocide. The 1957 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) has laid out what it believes to be a precise definition. As described by article 2 of 1957 (CPPCG) the act of genocide is described as any act that is mean to destroy in entirety or in part any racial, ethnic, or religious group by the following acts; causing members of the said group to suffer serious mental or bodily harm, or murdering members of the group, or forcing the group members to live in a certain way, or a calculated or methodical enforcement that is designed to cause harm or destruction to the group. The acts also include the prevention of continuity of the generation in the said group[footnoteRef:1]. Simply put genocide is the intent to cause the destruction of a group. The intent could be the destruction in entirety or in part. However for a crime to be termed as genocide the intent must be proven. Otherwise the crime, no matter how heinous, will not constitute genocide. [1: Office of the High Commissioner for Human Rights. (2008). Convention on the Prevention and Punishment of the Crime of Genocide, The Wayback Machine.]

What is humanitarian intervention?

Simply put, humanitarian intervention is the use of military force against another state to end human rights violations practised by the state against its citizens[footnoteRef:2]. Humanitarian is a much disputed subject. There exist multiple definitions and descriptions of the term. The definition chosen depends a great deal on the lens through which the subject is currently being viewed. The term has different limits if viewed through the lens of politics, law and ethics. There exists a whole variety of reasons for the difference in definition. Some of the reasons accounting for the differences are discussed below[footnoteRef:3]. [2: Marjanovic, Marko. (2011). Is Humanitarian War the Exception?, Mises Institute.] [3: Ibid]

One reason is that there is a demonstrated absence of agreement from the host state. Another reason that becomes a factor is the question of whether or not humanitarian intervention is restricted to actions of punishment. Another case that causes much disagreement is whether intervention is limited to cases where the United Nations Security Council has given explicit authorization for the use of military force[footnoteRef:4]. On the other hand there is some agreement when it comes to the general traits of the term[footnoteRef:5]: [4: Welsh, J.M. (2004). Humanitarian Intervention and International Relations. Ed. Jennifer M. Welsh. New York: Oxford University Press.] [5: Alton, F. (2000). Humanitarian Intervention: Crafting a Workable Doctrine. New York: Council on Foreign Relations.]

One feature that is agreed on is that Humanitarian intervention entails the use of military force. This is an intervention in the sense that the rights of a sovereign country are violated by another country in the sense that the aggressor violates the country's territory or air space. This in when the sovereign state has not committed any acts of aggression against the state that is committing itself to the intervention. This act is undertaken when the aggressor is under no threat by the sovereign states polices. It is done purely in the interest of humanity. The issue of humanitarian intervention is a bright topic of interest when it comes to foreign policy of a state. The issue has seen more debate ever since NATO intervened in Kosovo in the year in 1999. This brings to light two different principles. The two principles stand in stark contrast to the UN's two policies of state sovereignty and international law[footnoteRef:6]. The issue has created several long running debates. These debates include the discussion of whether it is feasible to use military force in response to a situation of human rights violation. Questions abound such as when the said intervention should take place, which should intervene and others[footnoteRef:7]. [6: Tharoor, S. And Daws, S. (2001). Humanitarian Intervention: Getting Past the Reefs. World Policy Journal 2001.] [7: Ibid]

The issue represents different things to different people. For people who are all for the intervention it is a symbol of hope. To them it is a military intervention in light of human rights abuses. To them it marks the end of human rights violations. But to the people who are against the intervention is viewed as an excuse for the achievement of ulterior motives. The humanitarian intervention excuse was used with increasing frequency after the end of the cold war. Some people thought that it was a new form of politics. However that theory has now been put to rest with the war on terror that the United States has declared following the September 11 attacks[footnoteRef:8]. [8: Cottey, A. (2008). Beyond Humanitarian Intervention: The New Politics of Peacekeeping and Intervention. Contemporary Politics: pp. 429-446.]

Victims and oppressors

Due to the uncertain circumstances, the SNM was enforced by the major pressure in the past British colony to quickly announce the independence in the month of May 1991[footnoteRef:16]. Though the circumstances varied greatly in the North and South regions, but due to the announcement of independence, the uncertain conditions got settled to some extent into the indigent quasi-government. On the other hand, beneath the SSDF leadership, the northeast area remains out of the brawl that excludes the fights with the Aydeed's branch of USC, which was Belet Weyn. Moreover, this situation did not remain for the longer time as this spreads out to the borders of Kenya, which was completely under violence[footnoteRef:17]. [16: Chothia, F. (2011). Could Somali famine deal a fatal blow to al-Shabab? News Africa, BBC African Service] [17: Chothia, F. (2011). Could Somali famine deal a fatal blow to al-Shabab? News Africa, BBC African Service]

It is identified that the circumstances got worse with the passage time in Mogadishu when the conquering Hawiye killed non-Hawiye occupants in the region. The non-Hawiye occupants included public figures like the Issaq, who could be termed as the adamant supporters of the past regime. The people who were mostly victimized were those who belonged to different clans of the Darod family which includes Majerteen, Ogadeen, Dolbahante, Marehan and etc. This spell of brutal killing got into prominence from the activities of the offending young soldiers of Hawiye who were at that time known and popular as the mooryan[footnoteRef:18]. [18: Ochami, D. (2011). Somalia government supports Kenyan forces' mission. The Standard, Standard Group.]

The cruel slaughter of innocent people widely spread that one of the liberators Colonel Omar Jess being an Ogadeen Darod was unable to stand and overlook the extensive killings of his people and he decided to take an action against his so called dear former friends or alliances. Colonel Omar was badly beaten in the Afgoye and he had to move back to the South due to the strong pressure imposed by Hawiye[footnoteRef:19]. [19: Ibid]

The atrocious circumstances of the country at the time insisted Colonel Omar in April 1991 to join back the forces with the enemies of SNF in opposition to USC allies. They made the strategy of attacking the north region. The fights in the north and the south region destroyed inter- reverine areas which affected and destroyed the crops and forced several people to turn into expatriates. Once the situation got stabilized between the regions of Gedo and Bay, which was previously in control of the forces of SNF-Siad Barrre and which came under the alliance of Aydeed- SDM-USC, Colonel Omar took advantage of the situation and reconciled with General Aydeed so that he could get his support against the forces of General Morgan. This reconciliation between Omar and Aydeed allowed the Colonel to return to the harbor of the Kisimayo in South[footnoteRef:20]. [20: Ibid]

In the South where the situations got more stabilized, the tension and the strain flared up again in the south capital, as a consequence, among those opponent or rival branches of USC who were about to bury all their differences so that they can together face the threats given by SNF enemies. To fight with SNF enemies, a conference was arranged in 15-21 July, 1991 in Djibouti so that the political situation, as termed by Somaliland President Abd-er-Rahman Ali Tur, was a surrealistic construction that can in no way be put into the practice. The total of 83 government men selected in the conference to make up the intervening government was positioned under the command of President Ali Mahdi Mohamed but this governement, again, existed only in the paper form and not in real[footnoteRef:21]. [21: Ministry of Foreign Affairs. (2012). Joint Communique - Operation Linda Nchi. Ministry of Foreign Affairs, accessed March 3rd, 2012 from: http://www.mfa.go.ke/index.php?option=com_content&view=article&id=399:joint-communique&catid=35:news]

The defeat of Siad Barre had taken place when the military operations in the Gulf war were gone unnoticed by the global actors. Afterwards in the year of 1991, the brawl had again started between the provinces of Lower Shebelle, Bay and the Lower Jubba. Again it did not gain any attention from the world as in these provinces there was not even a single foreigner or journalist. In the same year of 1991 in the month of November, a Mogadishu War, which was fought till the early subsequent year of 1992, finally highlighted the Somali conflicts and got the attention of the whole world[footnoteRef:22]. [22: China Daily. (2010). Kenya agrees to join AMISOM. Accessed March 3rd, 2012 from: http://www.chinadaily.com.cn/world/2011-12/07/content_14225808.htm]

The major reason behind the Mogadishu war was the competition for controlling the capital between the two under-fed and the over-armed opponent groups of the related tribes. The thing that finally exploded the two rival groups was a very minor contention on controlling the airport. This war lasted for the 3 months under the drastic conditions of savagery. Both the rival camps for the three months routinely used the heavy weapons in the streets without considering about the safety and security of the civilians of the capital. During the three months there were around 14000 casualties because of the blind attacks made on the prisoners, ambulances and etc. In contrast, the attack on the Siad Barre forces just a year prior to Mogadishu war had only 4000 casualties[footnoteRef:23]. Thus, at the end it is noticed that there was not a single benefit of fighting for either party and finally the war ended dividing the capital between southern zone, which was controlled by General Aydeed, and the northern zone that was controlled by the Ali Mahdi. [23: Physicians for Human Rights. (1992). No Mercy in Mogadishu. London: Physicians for Human Rights.]

The last fight between the two capitals drastically weakened the branch of USC which includes different segments of Hawiye tribe; and the SNF forces of pro- Siad Barre took the hearts of people in South zone. The former regime after getting the heavy weapons from South Africa via Kenya[footnoteRef:24], under the guidance of General Mohamed Said Hersi, the 'Morgan', initiated an enormous attack on the north zone in the year 1992 in March. In April 1992 the Morgan and his army made it to the capital and forced the two generals, Aydeed and Ali Mahdi, to reconcile on temporary basis so that they can together face the threat of the new emerging force of 'Morgan'. The forces of pro-Siad barre were defeated badly in the attack and moved towards south. Even the SNF forces were chased all the way back to the border of Kenya and the two armies who were struggling, looted the inter-reverie area once again and gave rise to more expatriates[footnoteRef:25]. [24: Africa Watch. (1992). 'Somalia: Beyond the warlords', News from Africa Watch, Vol. 5, No 2, p.6.] [25: Ibid]

In the summer of 1992 the circumstances got completely disarrayed and more than half million of Somali civilians were relocated[footnoteRef:26]. Some dwelled within the land of Somalia in Mogadishu or in the far south, while some relocated to different lands of Yemen, Ethiopia, Europe, North America and Kenya. The circumstances got so worse that the people had to face the incredible shortage of food especially in the Lower Shebelle and Bay provinces. Due to this, 90% of children suffered from malnutrition and 16.5% was the death rate at that time in June 1992[footnoteRef:27]. [26: Frontieres, M.S. (1992). Populations en danger, Paris: Hachette, pp 58-65; United Nations Special Emergency Program for the Horn of Africa (SEPHA). (1992). Updated Consolidated Inter-Agency Appeal, Geneva: United Nations; United States Agency for International Development USAID. (1992). USAID/OFDA Situation Report, No 13; Department of Public Information (DPI) and United Nations Operation in Somalia (UNOSOM) (1992). United Nations 100-day Action Programme for Accelerated Humanitarian Assistance for Somalia. Geneva: United Nations.] [27: Frontieres, M.S. (1992). Populations en danger, Paris: Hachette, pp 58-65]

Global intervention

It was due to the international neglect that one noticed an event which eventually triggered the intervention of foreign countries. In the month of September 1992, Mohamed Said Hersi initiated an attack of retaliation against the SNA forces of Aydeed. After he got the victory in the offensive attack in the second quarter of 1992, Aydeed created a federation of organization which was a free federation that worked below the USC faction. This federation brought different groups together like; the SSNM, Omar's SPM faction, SNU, SAMO and SDM for a while[footnoteRef:28]. [28: Department of Public Information (DPI) and United Nations Operation in Somalia (UNOSOM) (1992). United Nations 100-day Action Programme for Accelerated Humanitarian Assistance for Somalia. Geneva: United Nations.]

The Counter offensive attack was considerably successful and Morgan had re-conquered most of its GEDO province and pushed the incursions to the outside of Kisimayo. Though from the humanitarian view point, the victory of Morgan was considered as the destruction as this contributed in creating expatriates in large numbers. They also caused the NGOs and the other services to leave the province. This in turn left the province with huge camps of expatriates of the South and the casualty rate also increased incredibly. This whole condition was documented in the U.S. press in the fourth quarter of the year 1992. The 100 day emergency plan of U.N. For Somalia was turned out into a big fiasco as only 9% food was distributed among people after the 40 days of the implementation of plan. Therefore, it was said that there was a great need of more radical actions to stable circumstances[footnoteRef:29]. [29: Ibid]

Foreign Intervention in the Somalia Crisis (1992-1995)

In the year 1992, U.N. Security Council adopted a resolution to get involved in crisis that hit Somalia. The resolution 733 endorsed the ban on the arms supply, official compassionate help from United Nations and a truce. Though, the actual implementation of the decision was more than negligible in reality[footnoteRef:30]. [30: Ibid]

Subsequently, another resolution (751) was passed on 24 April 1992, which proposed creation of United Nations Somalia Mission (UNOSOM) and deployment of 50 military bystanders to supervise the truce singed on 3rd March 1992. In this regard, Pakistani troops were deployed with a restricted domain of responsibilities. Their effectiveness got badly disturbed with constant danger of attacks and unfriendly environment. Mainly, the observers remained stuck in the international airport, with very limited work to do[footnoteRef:31]. [31: Ibid]

Due to increasing offenses by the troops of General Mohamed Said Hersi's, Security Council again passed another resolution (775) on 28th August, 1992. According to this new version, an increase in the number of U.N. military observers was proposed in the war zone and also proposed 4 offense zones. Though, the text called for a gentle assistance, but remained very unclear about the definition of an intercession because United Nations was still reluctant to go for a full-fledged involvement in Somalia[footnoteRef:32]. [32: Ibid]

At last, U.S. President Bush announced a direct American armed intrusion of Somalia, primarily to secure the aid distribution mechanism in the deteriorating conditions. However, there were few other considerations or motives behind the U.S. administration's decision to intervene in Somalia and some of these considerations included[footnoteRef:33]: [33: as cited in WRITENET. (1995). Somalia: Civil War, Intervention and Withdrawal 1990 -- 1995. Refworld - United Nations High Commissioner for Refugees, the UN Refugee Agency.]

First of all, when Cold War ended, a major cut in the defence budget was inevitable, which was the main concern for Pentagon. On the other hand, newly elected President Clinton also vowed to come up with a new Social Security Plan that might have caused a major cut in military's budget, so a fresh military operation was a good idea[footnoteRef:34]. [34: Ibid]

The second element was related to image building. The operation; Desert Storm went successful; still, it earned a great criticism for United States. Conversely, a direct military operation on the pretext of saving children in a highly poor African country could have been a great tool to build a positive image in a Muslim dominated area, where Westerns in general and U.S. In particular were not liked at all[footnoteRef:35]. [35: Ibid]

The third major rational behind the operation was the operational test of U.S. Army, which despite some preliminary hesitation went happily into the war-torn area to test its Rapid Defence element. This helped them create a military base in the Diego Garcia Island that was never used for such exercises before[footnoteRef:36]. [36: Ibid]

Though, the technical and operational mechanism of this intervention were duly planned and sorted out, still the operation faced a major blow owing to mistreated official policy agenda. The militaries went into Somalia with the banner of United Nations International Task Force (UNITAF), but they were not aware of what was going to happen ahead? However, this was not the sole American problem because when U.S. announced military intervention on 25 November 1992, many Western countries also followed suit and jumped into the motion, with no serious planning of the future and expected results[footnoteRef:37]. [37: Ibid]

The then French Secretary for Humanitarian Affairs; Bernard Kouchner (also creator of Medecins Sans Frontieres) announced that he believed that this intercontinental involvement would meet its objectives because they are most likely going to meet a few armed teenagers with zero operational or military capacity which will make them flee away from the battlefield quickly[footnoteRef:38]. [38: Ibid]

He was not the sole optimistic diplomat in the west. Few voices which raised concerns were not paid attention to at all. Former U.S. Secretary of State Henry Kissinger questioned and demanded the detailed explanation of the intervention and the operational limits and time-frame for the operation, but in vain[footnoteRef:39]. [39: Ibid]

Jane Perlez was one of the journalists, who remained in Somalia and monitored the whole operation since the failed attempt of UNOSOM mission. He asserted that many U.N. representatives were left bewildered in Mogadishu, Somalia as to the reason behind U.S. administration's lack of attention paid to improve the flapping U.N. military operation before taking a direct intervention by U.S. army as the final decision[footnoteRef:40]. [40: Ibid]

Analysing the views expressed by Bernard Kouchner, we find a little egotism in few European and western powers, when they thought of Operation Restore Hope. The central idea of his philosophy was that Somalian crisis is nothing but an outcome of archival teenage criminals, who will not be able to fight back the heavily armed Western militaries, and will evacuate the field for them[footnoteRef:41]. [41: Ibid]

Once they are gone, food distribution and writ of the state will get established fully. Similarly, French Minister of Defence Roland Dumas expressed the same immature views asserting that their initial actions will focus on creating humanitarian aid access points; even with force, if that was needed. When the gangsters would be defeated, in the second phase, the Blue Helmet will march the whole country and organize the third phase; nationwide settlement of the disputes and state rebuilding[footnoteRef:42]. [42: Ibid]

In his remarks, the changeovers are quite surprising, like; first he asserts opening up corridors for food access with force and expresses optimism on the gangsters' disarmament. This was indeed a big conceptual mistake because the U.S. never intended to get into the matter of disarming the fighting groups. As per the U.N. Security Council Resolution 794, that as passed on 3 December 1992, the UNITAF has a clear mandate on the issue. Washington had remained inflexible on excluding disarmament from the agenda[footnoteRef:43]. [43: Ibid]

The objective of UNITAF was outlined as creating an atmosphere of peace and bringing the situation to normal. This could mean virtually anything for anybody because of the confusing remarks by leaders and vague expressions in resolution. In the initial weeks of UNITAF deployment, there were heated debates between the representatives of U.S., UN, and U.N. Secretary General, where Mr. Boutros-Boutros Ghali tried hard to lead the movement to disarming the warrior groups[footnoteRef:44]. [44: Ibid]

Even if they could go for disarming the bands, (an incorrect expression of tribe-based political militia as explained earlier), it would have been a really tough task to understand the process of this simple disarmament and meeting the next two steps of a nationwide truce and then reconstruction of the state. Meeting these objectives was almost impossible when the actual cause of the problem is misunderstood and unmet. The core reason of the problem was Somalia's culture which never had any societal and political base for establishment of the state. Many experts touched the question of approaching a political problem with an apolitical methodology and approach[footnoteRef:45]. However, at that point, there remarks and questions were dubbed as immature experts, who do not have basic understanding of the problem and were disrespectful to the noble human cause. [45: Prunier, G. (1993). 'La politique bafouee'. Le Monde des Debats.]

Genocide or Civil War?

According to Rutherford (2008), in order to be defined as 'genocide' an act has to include both the physical as well as the mental element. According to Article III, there are five kinds of genocide, i.e.: a) genocide, b) planning to execute genocide, c) directly instigating the common people to execute genocide; d) attempting to execute genocide; e) being an accomplice in genocide[footnoteRef:46]. Moreover, the International Criminal Court outlines crimes impeding peace and humanity and war crimes as mentioned below:- [46: Rutherford, K. (2008). Humanitarianism Under Fire: The U.S. And UN Intervention in Somalia. Kumarian Press.]

1) Crimes against Peace

Crimes impeding peace comprise of: calculation, preparation, offer or execution of any war of anger, or war in breach of international jurisdiction, agreements or contracts, or being part of a common strategy or plan for the establishment of the aforementioned elements[footnoteRef:47] [47: Andre, L.S. (2005). Stateless Justice in Somalia. Centre for Humanitarian Dialogue. ]

2) War Crimes

War crimes include breaches of rules of war. These violations, not exclusively, are killings or physically injuring or transfer of forced labour-force to any other end of free or occupied area residents, killing or mistreatment of people held in custody after a war, murder of hostages, theft of any type of property, squandering and harming the urban, semi-urban or rural areas or destruction that is not part of a military operation[footnoteRef:48] [48: Ibid]

3) Crimes against Humanity

Crimes against humanity comprise killing destruction, slavery, involuntary transfer and other despicable actions performed with any free population, at any time. It also includes persecution because of territorial, ethnic or belief-based reasons as a part of any misdeed within the laws of the Tribunal, or falling under domestic laws of the country where committed [footnoteRef:49] [49: Ibid]

Looking at the above statements, one can qualify the internal instability of Somali in 1990 to be genocide, especially when considering the first two clauses of crimes against peace and war crimes. However, the fact of the matter is this: it was a civil war in the very essence of the word. Yes, there were crimes against peace committed but these crimes are committed in any and all civil strife; and, while the international forces like the U.N., supported the intervention, it really an effort that was conducted on misguided notions, in my opinion. What should have perhaps been done, in the form of intervention, was the reconciliation of the opposition armies as opposed to a full-throttle military operation. The global military operation in Somalia lasted 27 months and was still a failed attempt. The reasons for this include: a) the intervening parties had no clue about the background to the problems being faced by the masses in Somalia that had led to civil strife in the first place i.e. The cultural and social norms did not support political measures; b) the intervening forces were more than arrogant in undermining the military forces at work in Somalia; c) there was no clear operational layout that explained what needed to be done and at what time with what decree of capital; d) the announcement to disarm violent military forces was a far-fetched and unrealistic one; and e) the actual humanitarian effort in the region was far from satisfying or all-encompassing.

Conclusion

It can be said that the susceptibility factor has played a crucial role in the creation of the 1990 situation in Somalia. Besides this, of course, there was outlawry in the state witnessed previously as well. The combination of all these factors actually created this situation in the country. Apart from these, there was the rising of non-state antagonists (clan-based) in the country when the external resources left the country, which definitely made it a worse scenario. Of course, the current situation of Somalia is a result of the vision of the developed world. The aid to the sufferers by the United Nations did make sense, but it was really an insensible approach to reconstruct Somalia as it clearly lacked a plan of operation or a clear understanding of what caused the extreme condition in the first place.