Transparency on Civilian Harm in Somalia Matters – Not Just to Americans

Under the Bush, Obama, and Trump administrations, much of the commentary on the use of lethal force in counterterrorism operations has focused on the importance of transparency for one audience: the general public in the United States. Not enough attention and analysis has been given to the importance of transparency for countries and local communities in which those lethal actions directly operate. Consider the case of Somalia.

Since President Donald Trump took office, the U.S. government has dramatically increased the number of lethal operations—including raids and drone strikes— against the armed group al-Shabaab in Somalia. Al-Shabaab is widely feared in Somalia for terrorizing the Somali civilian population and regularly carries out large-scale acts of violence throughout the country and in neighboring Kenya (as regularly documented by the organization, Witness Somalia, where one of the authors works). At the same time, the increase in U.S. lethal actions has been controversial, and comes amidst growing secrecy surrounding U.S. operations and the policies governing strikes in Somalia.

Allegations that U.S. strikes have caused civilian deaths and injuries continue, including those raised by Amnesty International in a new report that details five U.S. strikes which the group alleges resulted in the deaths of 14 civilians and injury to eight more. U.S. Africa Command (AFRICOM) has strongly denied these allegations. However, in an important development, AFRICOM belatedly acknowledged last week that two civilians were killed in a separate an April 2018 incident.

In assessing the virtues and vices of the secrecy of these U.S. operations, an issue of primary importance should be the impact on Somalis, particularly when it comes to the absence of transparency about the measures the U.S. military is taking to protect civilians and about specific strikes. This article highlights the importance of transparency on these matters to Somalis, and calls on the U.S. and Somali governments to reverse the sharp turn toward secrecy.

What policies are in place to protect civilians in Somalia?

AFRICOM, the U.S. military’s geographic combatant command with responsibility for operations in Somalia, says that it “goes to extraordinary lengths to reduce the likelihood of civilian casualties, exercising restraint as a matter of policy.” General Thomas D. Waldhauser, Commander of AFRICOM, has stated that “it’s very, very important that we have a very, very high degree of certainty, in order to, you know, re-mitigate or in eliminating [sic] all total civilian casualties.” These are important signals of AFRICOM’s intent to protect civilians. Yet, in spite of these official assurances, due to U.S. government secrecy it is still unclear to what extent heightened policy protections for civilians are applicable in Somalia.

According to media reports, in March 2017, President Trump secretly designated “parts of Somalia” as “areas of active hostilities,” meaning that Obama-era policy rules requiring that there be “near certainty that non-combatants will not be injured or killed” and “near certainty” that a “lawful target is present” were no longer applicable in those parts of Somalia. Subsequently, Trump reportedly—and again secretly—watered down those protections.

The secrecy surrounding the Trump administration’s policies governing the use of lethal force abroad has led to some inconsistent media reporting on the issue. In March and December 2017, Charlie Savage and Eric Schmitt reported that Trump had declared “parts of” and “much of Somalia” an “area of active hostilities” respectively—making it seem that the looser protections only applied in parts of the country. A September 2017 report by Savage and Schmitt appeared to suggest that Somalia would remain covered by the more protective rules for “areas outside active hostilities,” but that the specifics of those rules were altered to some degree under Trump. Then, just this past month, Savage and Schmitt seemed to indicate that Trump had declared all of Somalia an “area of active hostilities.”

President Obama released a detailed factsheet in May 2013 on the date he established the policy guidance intended to protect civilians in U.S. counterterrorism operations conducted outside areas the U.S. government deemed as zones of “active hostilities.” That factsheet provided information about the content of the presidential guidance, including significant policy enhancements aimed at the protection of civilians. A redacted version of the full policy guidance was released pursuant to Freedom of Information Act litigation in August 2016. In 2017, the Trump administration reportedly weakened or withdrew some of those standards under its replacement guidance, but has yet to officially release those revisions to the public.

Why clarity on U.S. policies for protection of civilians in Somalia matters

Which “parts” of Somalia are subject to looser policy protections for civilians? The geographical distinction is crucially important. Somalis don’t know what standards or policies the U.S. military has put in place to protect civilians, and whether more permissive targeting rules apply to all strikes or strikes in some parts of the country, and if some parts, which ones.

As two of us explained in a 2017 report on U.S. transparency and the use of force, this was already a problem under Obama, although at least the Obama administration publicly acknowledged—if belatedly—which countries were designated as “areas of active hostilities.” It was a limited list, which meant that Somalia presumably was covered by the more protective policy safeguards for being outside of an “area of active hostilities.” While under Obama, the U.S. government explained that it took into account a non-exhaustive list of variables in making such determinations, it is unclear whether Trump administration officials applied the same criteria when changing the policy protections in Somalia.

The importance of greater transparency in this space is obvious given that civilian policy protections appear so malleable as to be capable of being switched on and off according to an arbitrary designation: The designation seems to be a prelude to more intense operations, rather than the other way around. The reported 2016 designation of Sirte and other parts of Libya as an “area of active hostilities” paved the way for a massive increase in strikes in the second half of that year. Something similar appears to have happened in Somalia since Trump’s 2017 designation.

Such a designation has wide-ranging implications for civilians in a country like Somalia where Al-Shabaab controls large swaths of territory, and civilians in these areas remain trapped between various warring parties. Communities frequently have to cooperate with Al-Shabaab members or risk reprisals from the group. In some instances, Al-Shabaab collects taxes from civilians and forcibly recruits children. In other circumstances, the group kidnaps individuals and forces clan elders to procure weapons in return for their release. With the U.S. designation, civilians in these areas, either due to their geographic proximity or presumed interactions with the group, are at a greater risk of being wrongly affiliated and targeted in U.S. lethal operations. Amnesty International alleges that this was the case in relation to three farmers in an al-Shabaab controlled area who were allegedly killed in a U.S. drone strike as they slept under a tree—although AFRICOM denies this allegation.

Another concern is that, as Somali society is divided into numerous clan and sub-clan groups, the likelihood that clan rivalry or faulty human intelligence may wrongly inform a targeting decision also increases. In 2017, the Daily Beast questioned the accuracy of U.S. intelligence during the reporters’ investigation into a U.S. ground operation that allegedly killed 10 civilians in Somalia. A more constrained approach that affords greater protection to civilians is even more important in such situations: Knowing whether the U.S. is taking a more constrained approach or not to operations in Somalia is therefore key. It’s key to how civilians organize their lives. It’s key to how advocates communicate their concerns to the United States and its local military partners. It’s key to local communities’ views of the legitimacy of these operations, especially when they go awry.

In particular, continued secrecy can have a significant impact on the Somali public’s perception of the U.S. war against Al-Shabaab. Somalis may continue to doubt the U.S. government’s claims that it distinguishes between civilians and combatants, and call into question its commitment to protecting civilians. Reports of increased civilian casualties seems only to confirm this perception, leaving Somalis caught between Al-Shabaab’s endless and ruthless abuses on the ground and the United States’ increasing aerial attacks. That civilian deaths continue to be reported suggests a need for greater clarity on what protections are in fact in place to allow Somali civilians to know whether the U.S. is applying more permissive targeting rules in areas in which they reside.

Consider what happens when the public witnesses a significant discrepancy between the supposed U.S. standard for operations and the reported outcomes of those operations. The public sees reports of civilian casualties in contrast with U.S. officials having previously claimed to be applying the highest standard possible—a near certainty that no civilians would be killed, or in Gen. Waldhauser words, a “very, very high degree of certainty, in order to, you know, re-mitigate or in eliminating [sic] all total civilian casualties.” That situation sows public distrust in the United States and official representation across a range of issues. However, the U.S. military would be viewed much more credibly if it clearly explained to the public that heightened policy protections were not applied to certain strikes, or were suspended for strikes in parts of the country.

Finally, a threshold question is what legal definition AFRICOM applies in determining legitimate targets and who is a civilian. Indeed, the astonishing lack of any admission by AFRICOM that its air campaign has ever caused any civilian casualties (until the admission last week), despite what Somali communities and non-governmental groups have reported, raises a real concern that the reason for the discrepancy lies in the definitions AFRICOM applies and how broadly it defines who is a legitimate targets. Those definitions, however, remain secret, putting Somalis at greater risk of being targeted because of a road they travelled on or a community they happen to live in. Imagine if a government took life, but did not tell its citizenry on what basis it was doing so—what activities would be considered targetable. It’s even worse, of course, when that government is a mighty foreign military power and not your own.

Rescinding reporting requirements on civilian casualties: Impact on Somalia

The lack of clarity on what policy restrictions apply in Somalia coincides with the current administration’s decision to revoke an important provision that required annual reporting of civilian and combatant casualty estimates. Though the provision had many shortcomings, it was nevertheless important in providing greater transparency on the scope and cost of U.S. lethal operations abroad. Critically, the reporting requirement was the only one to require casualty estimates in operations conducted by all agencies, such as the CIA. By rescinding the reporting requirement, the Trump administration has effectively insulated the CIA from any meaningful public accountability. It is unclear whether the CIA is carrying out strikes in Somalia, but, if they are, any civilian casualties from their operations (or claims of no civilian casualties) will not be reported even in aggregate form—depriving outside groups and the Somali public from comparing government estimates of civilian casualties to their own.

Reporting of strikes and civilian casualties

The Trump administration’s revocation of the reporting requirement is part of a trend by the U.S. government to be less transparent about factual details in its overseas operations, including in Somalia, since Trump took office. This trend is disappointing, given positive reforms that happened from 2014 onward, when U.S. AFRICOM first began to regularly acknowledge strikes in Somalia.

In the past few years, AFRICOM has been less proactively acknowledging strikes, although it does respond to journalists’ queries about specific incidents. This is problematic as it can muddy the waters as to who is responsible for individual incidents. The current opacity and lack of accountability for alleged civilian casualties can also have a serious impact on U.S. engagement in Somalia. Strikes often deprive families of their main breadwinners; growing numbers are displaced by all parties to the conflict as a result of the increased intensity of operations; communities live in fear of being fired on again and reportedly refrain from carrying out ordinary daily activities; tension and conflict grows and is exacerbated, rather than resolved. By not consistently acknowledging specific strikes and responding in detail to allegations of civilian harm, families who have lost their loved ones are not only unable to obtain redress, but are denied the basic recognition of their loss, compounding their suffering.

AFRICOM should endeavour to return to its practice of promptly and publicly acknowledge each strike with sufficient detail so that Somalis who have been injured and families of those killed know what has happened and who is responsible. AFRICOM should also explain what measures it takes to investigate civilian casualty allegations, and release detailed results of those investigations (including when an investigation concludes that an alleged civilian casualty incident cannot be substantiated). So far, most of AFRICOM’s explanations provide fairly minimal details. As one of us has highlighted previously, militaristic U.S. actions can be counter-productive allowing groups like al-Shabaab to exploit grievances of affected communities and add recruits to their ranks. AFRICOM would bolster its credibility and legitimacy by showing more transparently how seriously it takes allegations of civilian casualties.

After initially claiming that no civilian casualties resulted from an April 2018 airstrike near El Burr, Somalia, AFRICOM last week publicly acknowledged that two civilians—a woman and child—had been killed. This was notable as AFRICOM’s first admission of civilian casualties in its operations in Somalia, and has been welcomed by some Somalis, although many Somalis, including those who have been affected by drone strikes, demand more than just an acknowledgment. More information is needed on what steps, if any, AFRICOM plans to apologise to the families of those harmed and to provide them with compensation or condolence payments.

Honest and transparent accounting for civilian harm will go a long way to increasing AFRICOM’s credibility and legitimacy in Somalia. AFRICOM states that it has notified the Somali government and is in “close coordination” with its partners. It is not clear whether families of those killed were similarly notified.

Other important questions remain: AFRICOM states that, due to a “reporting error,” the “finding was not properly reported to U.S. Africa Command headquarters.” This meant that Congress and the Somali government were also (inadvertently) not told of this incident. AFRICOM states that the “reporting error” is being addressed, but clearly a review of investigation and reporting procedures is needed to ensure that this has not happened on other occasions and does not happen in the future. Additionally, AFRICOM should review previous civilian casualty allegations and release the results of investigations (see, for example, those disclosed on the U.S. Central Command FOIA reading room). Doing so would help demonstrate to a sometimes sceptical Somali civilian population the lengths to which AFRICOM goes to assess allegations of civilian harm.

Beyond transparency: The militarized counterterrorism response in Somalia

Greater transparency—including on what policies are in place to protect civilians in Somalia, on what standards are applied in legally defining and distinguishing combatants from civilians, and on the investigations of civilian casualties—would go a long way to showing the U.S. government’s commitment to the rights and dignity of the people of Somalia. At the same time, greater transparency is only part of the solution. Increased airstrikes are symptomatic of a militaristic approach to achieving stability in Somalia, made narrower by proposed and actual cuts to the U.S. State Department, foreign aid, and international organizations. Addressing these policy issues is beyond the scope of this piece, but there should be a greater emphasis on analyzing the drivers that enable groups like al-Shabaab to operate, and assessing whether the U.S. military’s presence, strategy, and involvement in the country can be pursued less destructively.

Congress and the Somali government are well-placed to ask some of these questions of U.S. involvement in Somalia. They can do so by demanding transparency about what policies are in place to protect civilians in Somalia, maintaining and enhancing civilian casualty reporting requirements, and requiring greater transparency on individual strikes and assessments of specific incidents where civilians are alleged to be harmed, particularly in light of AFRICOM’s most recent disclosure. Critically, the United States should work with the Somali government and community and clan elders to implement accountability mechanisms and distribute information to the Somali public about what remedies are available to civilians affected by U.S. strikes.

Beyond these practical steps, Congress should be asking strategic questions about what lessons the U.S. has learned from decades of military interventions and a now snowballing engagement in Somalia, and whether alternative approaches should and can be adopted that may be more beneficial to U.S. interests and stability in Somalia in the long run. Key for Congress in finding meaningful answers to these questions is engaging the expertise of community leaders and affected groups in Somalia: Made more difficult, but not impossible, by Trump’s travel ban.

Image: MC2 (SW/AW) Evan Parker/AFRICOM

 

About the Author(s)

Rahma A. Hussein

Legal Fellow at Columbia Law School’s Project on Counterterrorism, Armed Conflict and Human Rights. Follow her on Twitter (@rhussein_)

Abdifatah Hassan Ali

Abdifatah Hassan Ali is a human rights defender, blogger and co-founder of Witness Somalia, where he serves as the communication and advocacy officer. Follow him on Twitter (@IamAbdi5)

Alex Moorehead

Lecturer-in-Law at Columbia Law School, Director of the Counterterrorism, Armed Conflict and Human Rights Project at Columbia Law School's Human Rights Institute. Follow him on Twitter (@apmoorehead).