Friday 15 September 2017
by Adan Omar Hashi
On 23 August 2017, Mr Abdikarim Sheikh Muse, a Somali national, was detained by the local security of Galkacyo, Galmudug, a Somali Federal Member State. From here, the Somali government transported him to Mogadishu and kept him there for a few days, prior to being extradited to Ethiopia. This extradition was achieved without resorting to the available legal machinery. Muse, who had been living in Mogadishu, Somalia, for the past three years, is popularly known as Qalbi Dhagax. He was a member of the Ogaden National Liberation Front (ONLF) in the Ogaden region, ethnically an entirely Somali region that was relinquished to Ethiopia in the colonial period. Qalbi-Dhagax is a Somali national, born in Somalia, was a member of the Somali National Army and fought in the 1977 war between Somali and Ethiopia. Article 36 of the Provisional Constitution of Somalia specifically prohibits the extradition of a Somalian citizen to foreign nations. Even in the case of Qalbi-Dhagax having been born outside of Somalia, as claimed by some, this kind of detention is a defilement of the codes set out in the 1951 United Nations Convention, in regard to the Status of Refugees Article 33(1), which Somalia agreed to on 10 October 1978. Ethiopia is known to make use of torture (and also to harm family members) against its rivals; thus, the handover of a Somali national or a political refugee to Ethiopia violates their rights to freedom and life, and, therefore, constitutes a further endeavour by Ethiopia to threaten the most vulnerable within its population.
The Ethiopian government confirmed that the Somali government handed over Qalbi Dhagax in a security partnership treaty between Mogadishu and Addis Ababa. After a cabinet meeting that took place in Mogadishu on 6th of September 2017, the Somali government called this extradition “a lawful step” that was taken in order to remove a security threat, and then proceeded to brand the deported individual a “terrorist” who was associated with the militant group of Al Shabaab. The Somali Information Minister, Abdirahman Omar Osman, while speaking to the reporters in Mogadishu, stated that Ethiopia and Somalia made an agreement in 2015, according to which both Somalia-based Al-Shabab as well as Ogaden National Liberation Front(ONLF) were labelled as terrorist groups. The Minister added that the agreement identified the armed groups as a danger to the stability and safety of both countries, and, hence, both nations needed to unite in the fight against these groups. The Minister further pointed out that Qalbi Dhagax was a member of ONLF, was involved in activities threatening the security of both countries, and had close relationship with Al-Shabab. The Minister explained that the agreement had been seen by Ethiopia and the previous Somali Federal Government and had been signed by Mahad Mohamed Salad, the previous Minister of State for Presidential Affairs. The case was justified by the government on the basis of two reasons; the first reason was the connection to Al-Shabaab, and the second was the agreement between the two nations that branded ONLF as a terrorist group. Evidence to support the accusation made by the government, which alleges that the individual was connected to a terror organisation, looks to have been hurriedly collected and is based solely on statements that lack legal grounds. There is a need to uncover the truth as the cabinet press release does not have any clarity, and makes unconfirmed judgements that need to be examined:
1. ONLF - ONLF is a national liberation organisation, which fights in the Ogaden region for the rights of the Somali people, and has no connection to the conflict in Somalia. Mahad Salad, the previous Minister of State for Presidential Affairs, and the former Prime Minister, Omar Abdirashid Ali Sharmarke, repudiated the presence of a “federal-level treaty” with Ethiopia. A group known as Liyu Police, founded by the Ethiopian government, has been launching cross-boarder attacks against the Somali people across the border including the Galmudug region and the former minister, Mahad Salad, who is currently a Member of the Somali Parliament, from the Galmug region visited Ethiopia in order to address the local dispute and the pact, used the by federal government as its core argument, to justify its extraordinary extradition case, covered only cooperation on security related matters between the local communities in Somalia and Ethiopia in order to find solution to such cross border conflict. However, according to the former minister ONLF was not included in the signed agreement, and he was not a government representative. The current President of Somalia and the Somali Government also desecrated the Constitution of Somalia, which prohibits extradition and identifies the rights of Somali people to have residence irrespective of which part of Somalia they originate from.
2. Al-Shabaab - Allegations against Qalbi Dhagax regarding the associations with Al-Shabaab, a terror group, are a danger to the basic rule of democracy as well as the rule of law. Not once has Qalbi Dhagax been sentenced by a court on this matter, and these politicised accusations are a pillory on democracy and the legal order of Somalia. The latest accusations are politically-driven, a complete fabrication, and intended to influence the democratic will of the people of Somalia. The government has carried out an extradition that is secret in nature, devoid of any regard to the rule of law, and, in addition, these allegations are equivalent to political pursuit - indicating kangaroo cabinet meetings proceedings. This kind of procedure clearly violates the constitutionally guaranteed right of Somali people to a just trial, which is a right supported by international law.
The extradition of Qalbi Dhagax was inconsistent with the Provisional Constitution and infringed upon Articles 36 and 37 of the Constitution. The extradition of Qalbi Dhagax was not only illegitimate in terms of the Somali Constitution, it was also illegitimate in terms of international law, because of the violation of individual rights and infringement on the sovereignty of the nation. The fact that the President Farmaajo’s government assisted in this de facto extradition of a Somali national does not give it even a semblance of legality.
A government that acts in violation of the country’s Constitution and extradites citizens under the pretext of regional security blackmail cannot claim constitutional legitimacy for any of its further actions. Concerns relating to individual criminal acts committed by citizens of Somalia must be addressed only by the judicial authorities of Somalia. An administration that extradites its peoples under duress, for instance under the pretext of regional security blackmail, to a foreign nation cannot claim legitimacy, and an ad hoc cabinet meeting can never be the basis for legal action against the citizens of the nation.
In spite of a nationalist bombast throughout the election campaign the beginning of the 2017, this scandal highlights the present government’s lack of sovereignty policy, and reveals a profound fear of insecurity. In spite of the dubious military intervention, Ethiopia has, in a skilful manner, led the leaders of Somali to a fake sense of security and enticed them with a mirage of power. In addition to its under the radar military intervention to increase its sphere of influence, Ethiopia has also initiated an effective movement of co-option, indoctrination and silencing of key individuals and institutions. The present government is not resistant to this kind of intrusion, and President Mohamed Abdullahi Farmajo and his confederates, Prime Minister Mr Hassan Ali Khayre, and Head of NISA Mr Abdullahi Mohamed Ali, have committed a national crime against Somalia and should endure all the moral as well as political outcomes of this irresponsible deed. President Mohamed Abdullahi Farmajo has become the first President of Somalia to unlawfully deport a Somali citizen, and, thus, has set a dark and novel record in the history of the Somali nation. This act not only shows how far the present government is prepared to go to satiate the Ethiopian administration, but also accentuates the poor leadership, the lack of respect for the rule of law, poor governance, as well as the weakness of the parliament to protect and enforce the nation’s Provisional Constitution.
Extraordinary rendition – the international law perspective
Extraordinary rendition is a composite violation of human rights, comprising forceful transfer, enforced disappearance, renunciation of unbiased tribunals, random arrest, and torture. It involves the state-sponsored kidnap of an individual in one nation, with or without the assistance of the administration of that nation, and the ensuing handover of that individual to another nation for questioning and imprisonment. Although various intellectuals, public, community leaders, and civil societies in Somalia oppose this surreptitious act of terror, and express their condemnation of the actions of Government in the media and via social networking platforms such as YouTube, Twitter, and Facebook, a number of people in the inner circle of the administration are maintaining their line of argument to defend this illegal act with no regard for the 1960 Somali constitution, Somalia’s Provisional Constitution, International Covenant on Civil and Political Rights, Universal Declaration of Human Rights, African Charter on Human and Peoples' Rights, the Geneva Conventions, the Convention against Torture, the Convention and Protocol Relating to the Status of Refugees and the International Covenant on Economic, Social and Cultural Rights.
It is at this time essential to inspect the practice of extraordinary rendition by way of current human rights instruments. Qalbi Dhagax’s extraordinary rendition violates international human rights standards, comprising the International Covenant on Civil and Political Rights as well as the Universal Declaration of Human Rights. The following sections will inspect each instrument, and the conclusion will discuss the application of these human rights protections in order to prevent the practice of extraordinary rendition.
UNIVERSAL DECLARATION OF HUMAN RIGHTS
The Universal Declaration of Human Rights sets out an understanding of the duties relating to human rights enclosed in the United Nations Charter. Article 3 of the Universal Declaration assures the “right to security, life and liberty of person.” The narrative of Qalbi Dhagax proves that the application of extraordinary rendition affects these rights; for instance, kidnapping itself necessarily implies a lack of security as well as liberty. Human rights instruments, Article 5's ban on inflicting inhuman, cruel, or humiliating punishment or treatment is also pertinent to extraordinary rendition.
As extraordinary rendition often repudiates individual’s access to acknowledged legal processes for deportation, and to lawful acknowledgement in the receiving nation. This process contradicts Article 6's assurance that everybody has the right to acknowledgement universally as a person in front of the law. Rejection of admission to counsel violets the right to an effectual solution by the capable national courts for acts threatening the fundamental rights given to him by the constitution, recognised in Article 8. The Somali Government detained and transferred Qalbi Dhagax without any charges, thus, Qalbi Dhagax’s extraordinary rendition comprised “exile, arbitrary arrest, and detention,” all of which are forbidden under Article 9. Also, the extraordinary rendition of Qalbi Dhagax breaches Articles 10 and 11, which provide the right to a public hearing on criminal charges, as well as the right to be presumed innocent until proven guilty, in accordance with the law. The absence of legal procedure in this case shows that the government of Somalia does not want to give any opportunity to challenge the belief in Qalbi Dhagax’s guilt .
Extraordinary rendition also involves Article 13, which states that all individuals have the right to leave any nation and to return to their own home nation, whenever they choose. More significantly, extraordinary rendition contradicts the allowances of Article 14, which states that all individuals have “the right to pursue and to relish in other nations’ asylum from oppression,” as the process effectively gives people like Qalbi Dhagax to nations such as Ethiopia, in which it is likely they will be subjected to torture. The case of the extraordinary rendition of Qalbi Dhagax is also indirectly associated with other requirements of the Universal Declaration, including the right to create a family; the bar against arbitrary deficit of property; expression and freedom of thought and opinion; and the right to an international as well as social order, in which the freedoms and rights [of the] Declaration are upheld, all of which were completely disregarded in the Qalbi Dhagax case.
INTERNATIONAL AGREEMENT ON POLITICAL AS WELL AS CIVIL RIGHTS
As the Universal Declaration recognises a “common standard of success,” the International Covenant on Civil and Political Rights (ICCPR) has classified several of its contingencies. First, it is essential to study the regional range of the ICCPR. Whereas the language of Article 2(1) proposes that a State Party is merely required to acknowledge and protect the rights of the ICCPR “to all persons in its land and subject to its authority,” the Human Rights Committee is clear that an individual does not need to be living within a State Party's boundaries for that State Party to have duties to that person; the individual must simply be “in the efficient control” of the State Party. As a result, when a State Party takes an individual into custody by means of extraordinary rendition, that recipient State Party is required to allow the prisoner the protections and rights provided in the ICCPR.
Article 7 forbids cruelty as well as other practices constituting torture, inhumane or humiliating punishment or treatment. The Human Rights Committee understands this ban to require proof of “an actual risk of offending behaviour” in cases of extradition. Article 10 requires all the State Parties to treat all captive individuals with compassion and with regard for the characteristic self-respect of the individual. Putting individuals through distress and other kinds of inhumane, cruel or humiliating treatment after extradition violates the provisions of Articles 7 and 10, and the course of seizure as well as extradition itself may also disrupt a prisoner's characteristic human self-respect.
The Human Rights Committee statement regarding the likelihood that “[t]o deliberately capitulate a convict to another State, in which there are considerable grounds for considering that he will be vulnerable to being tormented,” while not clearly identical to the phrasing of Article 7 of the ICCPR, runs parallel to its goal. The Committee has decided that in certain cases transfer carry a danger of treatment in opposition to the provisions of Article 7 and, hence, nations engaging in these kinds of transfers violate Article 7. In this case this danger was intensified, because the government of Somalia is conscious that the Qalbi Dhagax has a justified fear of torture on his return. The Human Rights Committee statement makes it clear that the protections of Article 7 cover cases of handover. Article 7 is clearly relevant to the extraordinary rendition of Qalbi Dhagax to Ethiopia; the government of Somalia had considerable grounds to be certain that his extradition would put him in danger of being tortured.
According to Article 9, every individual “has the right to freedom and safety... No one should be subject to random detention or arrest. No one should be dispossessed of his liberty, excluding on grounds and in agreement with the procedure that are recognised by law.” With the protections in Articles 3, 9, 10, and 11 of the Universal Declaration, the absence of sufficient legal procedural safeguards all through the procedure of the extraordinary rendition of Qalbi Dhagax shows that the process involves a lack of security as well as liberty, and an arbitrary arrest as well as detention, in clear violation of the ICCPR. Article 9(4) enables any individual destitute of freedom by arrest “to take proceedings in front of a court, such that that court might decide on the justice” of the arrest. Moreover, Article 16 states that, “Each one should have the right to acknowledgement universally as an individual, in front of the law.” As shown in the case of Qalbi Dhagax, transporting nations give individuals subject to extraordinary rendition barely any legal recognition. Certainly, one of the uses of extraordinary rendition seems to be to keep individuals outside of the known legal processes for deportation.
The case of the extraordinary rendition of Qalbi Dhagax also indirectly violates Article 14 for the reason that he was not “equal in front of the tribunals and courts,” plus, in the first case, he was not permitted to attend the tribunals and courts. Like the contingencies of Articles 10 and 11 of the Universal Declaration, Article 14 of the ICCPR calls for the presumption of innocence as well as a fair hearing. As mentioned above, a presumption of guilt is the reason behind extraordinary rendition, and Qalbi Dhagax was not able to oppose that belief in any “capable, impartial and independent tribunal,” as required by Article 14. Of the technical protections set out in Article 14(3), the most pertinent and important is the right to be informed quickly of an accusation against one’s person. Qalbi Dhagax was a citizen who abided by the law and was never charged with any crime in Somalia; still, the administration was not successful in providing him with any of the technical guarantees made in Article 14. Furthermore, the questionings that took place after extradition most likely violates Article 14(g)'s minimum assurance that individuals “[n]ot ... be bound to appear against [themselves] or to admit guilt.” The case of Qalbi Dhagax highlights what the results are when Somalia disregards its responsibilities under Article 14.
A detailed examination of extraordinary rendition in relation to human rights instruments is just the first step in examining the human rights violations associated with extraordinary rendition; actually applying these instruments presents significant challenges. One traditional tool for averting or dissuading human rights violations is predicament. By highlighting that the government of Somalia is acting in blatant violation of standard human rights and international law instruments to which they are parties, and the nation’s own Provisional Constitution, the Somali people can put pressure on the state to cease state-sponsored criminal acts, and citizens can be informed about the actions of their own government, which should be held responsible to those liable. The government need not assume that the people of Somali will always excuse the violations of human rights of their own citizens. The present government, who have resorted to strategies used by the terrorists they fight, must be held responsible for their actions. By making use of these kinds of damaging policies, our nation becomes more vulnerable to abuses of human rights, as well as validating torture, abduction and extradition with no regard for the legal system. We need to express our human rights concerns to uncover violations and vocally disapprove of any kind of participation in extraordinary rendition.
The future of our country will be determined by the stand taken by our citizens on issues of national jurisdiction and sovereignty. If we accept the illegitimate extradition of a Somali national as fait accompli, there will be no legal counter-argument in the future. Ultimately, the fate of Qalbi Dhagax is in the hands of the Somali people. Parliament should enact legislation that compels government officials to be governed by, subject to, and required to conform with all laws, and must make sure that those involved in cases like this are held responsible. This would eradicate practically all entrapment, and would improve respect for the rule of law and the Constitution. If political officials are required to obey the same laws as the rest of the citizens, the citizens respect for them and for the laws they enforce would dramatically improve, and public service would become easier. To sum up, it contradicts the law to break the law. If politicians are not held accountable, our Constitution will be meaningless, and our efforts to understand it, enforce it, and depend on it will be chaotic.
Adan Omar Hashi is a research scholar and holds a Bachelor Degree in German and English languages from the University Of Salford and an M.S.C in Development Management from the University of East London.
E-mail: [email protected]