IHL says
Basic international humanitarian law (IHL) rules applicable to this situation:
Parties to the conflict must distinguish between civilians and combatants, and between civilian objects and military objectives. Attacks may only be directed against combatants or military objectives (principle of distinction).
It is prohibited to launch indiscriminate attacks as well as attacks which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated (principle of proportionality).
In conducting military operations, constant care must be taken to spare the civilian population, civilians and civilian objects. All feasible precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects including when choosing means and methods of warfare (principle of precautions in attack).
States and parties to the conflict must instruct their armed forces in IHL.
The case in brief
The African Union Mission in Somalia (AMISOM) was deployed in 2007 to support the Somali government in its fight against al-Shabaab, a non-state armed group. AMISOM operates under a United Nations mandate with civilian protection at its core. When AMISOM operations resulted in civilian casualties, the force faced mounting criticism.
Recognizing its obligations to protect civilians, and that failure to do so undermined its mission, AMISOM implemented an indirect fire policy including improvements in target planning and restrictions on indiscriminate weaponry. By applying such measures, AMISOM succeeded in reducing harm to Somalia’s civilian population.
IHL compliance highlights
- In 2010, AMISOM developed an indirect fire policy intended to minimize civilian harm. Measures included:
- providing advance warning of planned offensives
- creating No Fire Zones to protect civilian infrastructure such as hospitals, schools, residential areas, places of worship and camps for displaced people
- improving target planning prior to attack, including by conducting collateral damage estimates, introducing a checklist to ensure IHL tests were satisfied, and using drones to record patterns of life to better distinguish between civilian and combatant movements
- avoiding attacks on enemy mortar and artillery positions in populated areas
- deploying indirect fire weapons only in sparsely populated areas and restricting the use of specific rocket artillery to mitigate its indiscriminate characteristics
- reviewing previous operations and incorporating learning into future training.
- AMISOM continued to train troops in IHL and international human rights law prior to deployment as standard, disciplining soldiers in breach of the rules.
Case prepared by Andreas Piperides, Haya Omari, Naomi Smith, Cécile Lecolle, Sunethra Sathyanarayanan and Clémence Volle-Marvaldi LL.M. students at Leiden University under the supervision of Professor Robert Heinsch as well as Sofia Poulopoulou and Daniel Møgster (PhD researcher/researcher), Kalshoven-Gieskes Forum, Leiden University.
A. RULES AND PROCEDURES DEVELOPED BY AMISOM TO MINIMISE CIVILIAN HARM
[Source: Ambassador Boubacar Gaoussou Diarra, ‘Improving Protection of Civilians in African Union Peace Operations’, 5 July 2011, available at https://www.newtimes.co.rw/section/read/32729]
Since 2003, the African Union (AU) has deployed several peace support operations to help resolve conflicts in various countries across the continent. […]
Operating under a United Nations mandate to provide support to the Somali peace process and the institutions generated by it, AMISOM is bound by international law and recognizes the protection of civilians as an implicit duty. […]
It has therefore developed Rules of Engagement and Standard Operating Procedures designed to minimise harm to civilians while safeguarding the lives of its troops. [...]
AMISOM has in particular made sustained efforts to reduce the likelihood of unintentional harm to civilians from indirect fire weapons, such as rocket, mortar and artillery fire. As a rule, AMISOM forces do not engage in counter battery fire targeting extremists’ artillery and mortar positions, when these are located within population centres and limits their overall use to firing on de-populated areas where there is little risk of collateral damage. […]
These rules and procedures are constantly reviewed to conform to existing circumstances on the ground, but always with the aim of enhancing protection for civilians and its soldiers are trained in relevant aspects of international humanitarian and human rights law prior to deployment.[…]
If any of its soldiers are deemed to have acted outside the relevant rules, the Mission will acknowledge and apologize for the incident in question and institute disciplinary measures, including imprisonment for the offending soldiers.
[…]
B. AMISOM REFINES ITS POLICY ON THE USE OF INDIRECT FIRE
[Source: OCHA, ‘Reducing the humanitarian impact of the use of explosive weapons in populated areas, compilation of military policy and practice’, 19 October 2017, p. 25, available at https://www.unocha.org/sites/unocha/files/OCHA%20Compilation%20of%20Military%20Policy%20and%20Practice%202017.pdf ]
[…]
AMISOM indirect fire policy
The African Union Mission in Somalia (AMISOM) was deployed to Mogadishu in March 2007. In 2010, mounting concerns at civilian casualties resulting from its use of indirect fire, and a recognition that this was undermining AMISOM and its operational success, led AMISOM to implement a number of remedial actions, including the development of a new indirect fire policy. While this was intended to better meet its obligations under IHL, it also reflected […] that civilian casualties serve to undermine the mission and longer-term political objectives.
The indirect fire policy articulates a three-step process: avoid, attribute and amend:
• Where possible, AMISOM will avoid the use of indirect fire, which can cause CIVCAS [civilian casualties], unless the purpose of observed indirect fire is to achieve a military objective for extreme self-defense measures. Indirect fire will only be used to protect the civilian population where a clear military objective is identified and where the military advantage gained is overwhelmingly superior to the potential risk of harm to the civil population.
• When indirect fire is reported, AMISOM must attribute responsibility – detect the origin of indirect fire, correlate this with AMISOM’s own indirect fire firing records and apologize quickly if it is responsible; refute the allegation by accounting for the use of its weapons accurately; or apportion responsibility to opposing forces, based on intelligence, sighting reports and other evidence.
• Make amends for civilian harm caused unintentionally by AMISOM by recognizing losses and providing immediate assistance to those who have been injured, distressed or otherwise affected by AMISOM operations, including indirect fire.
As concerns the “avoid” step, the policy outlines a number of implementation measures, including:
• Improve intelligence capacity to allow for more predictive analysis of previous incidents so that hot-spots and techniques are identified to trigger operations that disrupt the assembly of insurgent forces prior to an attack.
• Ensure that mapping products are kept up-to-date, and that the following are defined on maps as No Fire Zones (NFZ): hospitals, schools, residential areas, markets, religious places of worship and internally displaced persons’ camps.
• Provide advance warning of planned offensives, whenever possible.
• Disrupt and deny indirect fire firing positions by insurgents against AMISOM’s front lines by tactical operations that clear and hold ground and dominate by observation and fire. Direct fire weapons, such as long-range, large caliber rifles can provide a rapid and accurate response, with less potential for civilian casualties than indirect fire.
• Avoid indirect fire against public gatherings. Public gatherings that do not represent a threat to AMISOM operations are to be treated as temporary NFZ.
• Introduce new targeting procedures, specifying target sets and proposed effects, as well as a model-targeting checklist to ensure that IHL tests are satisfied before engagement.
• Restrict the use of the 107mm rocket launcher (RL). The 107mm RL may be used to disperse groups of insurgents en route to a forming-up position where single shots may be fired, and the effects recorded before subsequent shots are fired. Under no circumstances are 107mm to be fired in salvoes.
• Employ a collateral damage estimation (CDE) support tool to assess the potential risk to civilians.
• Conduct After-Action Reviews (AAR) after an incident, in order to learn lessons and improve training.
[…]
C. MINIMISING CIVILIAN HARM IN POPULATED AREAS: LESSONS FROM AMISOM POLICIES
[Source: Sahr Muhammedally, ‘Minimizing civilian harm in populated areas: Lessons from examining ISAF and AMISOM policies’, International Review of the Red Cross (2016), 98 (1), 225–248, at 239-240, available at https://international-review.icrc.org/articles/minimizing-civilian-harm-populated-areas-lessons-examining-isaf-and-amisom-policies]
[...] The indirect fire (IDF) policy set forth the intent of AMISOM to minimize civilian harm through changes in policies, ROE, and response to civilian harm. The introduction to the IDF policy states:
“Winning the support of the people is the guiding principle for the planning and conduct of all our operations. Minimizing civilian harm must be a guiding principle for the planning and conduct of all our operations, and further is a humanitarian imperative on which we all agree.”
[...]
Other measures taken by AMISOM included creating no-fire zones around hospitals, residential areas, markets, religious places and camps for internally displaced persons, and restricting the use of 107 mm rocket artillery. The measures undertaken reflected the accuracy problems of this wide-area-effect weapon in harming civilians. Counter-battery fire was limited to “de-populated areas” in order to minimize collateral damage. The IDF policy recommended the use of CDEs before weapon use, mandatory refresher training for military personnel involved in the use of IDF, after-action reports following an incident to identify lessons and feed into trainings, employing unarmed aerial vehicles (UAVs or “drones”) to record patterns of life to improve distinction, and the creation of a CCTC. [...]
D. AMISOM AND THE PROTECTION OF CIVILIANS IN SOMALIA
[Source: Walter Lotze and Yvonne Kasumba, ‘AMISOM and the Protection of Civilians in Somalia’, Conflict Trends, issue 2, 2012, at 23, available at http://www.accord.org.za/publication/conflict-trends-2012-2/]
[…]
Taking note of the Secretary General’s concerns and the efforts undertaken by the AU and AMISOM to prioritise protection of civilians considerations in the operations of the mission the Security Council, through Resolution 2010 in September 2011, welcomed the progress made by AMISOM in reducing civilian casualties during its operations. It further urged the mission to continue in its efforts to prevent civilian casualties and to develop an effective approach to the protection of civilians.
By the end of 2011 these measures were beginning to take effect. Both the UN and non-governmental organisations reported that the Indirect Fire policy was showing results with instances of indiscriminate shelling in Mogadishu diminishing.
[…] The adoption of the Indirect Fire Policy by AMISOM represents a positive development which has certainly contributed to the reduction of civilian casualties. [...]
Discussion
A. Classification of the Situation and Applicable Law
1. How would you classify the situation in Somalia in 2011? Was there an armed conflict? If yes, who were the parties to the conflict? What additional information would you require in order to make such a determination? Is AMISOM bound by IHL? (GC I-IV, Art. 3; P II, Art. 1)
II. Indirect Fire Policy
2. What is the legal value of the Indirect Fire Policy of AMISOM? Does it replace the IHL legal framework that may be relevant for the military operations of AMISOM?
3. How does IHL protect the civilian population from the effects of hostilities? Which rules and principles of IHL are relevant for the matters presented in AMISOM’s Indirect Fire Policy document? How are the principles of distinction, proportionality and precautions construed under IHL? (PI, Arts 35, 43, 48, 50, 51, 52, 57, 58; PII, Art.13; CIHL Rules 1, 7, 11, 14, 15, 17;)
4. What is the purpose of conducting After-Action Reviews (AAR)? Is there a duty under IHL to identify trends of civilian casualties from past operations and to integrate the findings in the future training programs? (PI, Arts 83, 87; P II, Art. 19; CIHL, Rule 142)
5. Are the parties to the conflict under the duty to investigate instances of non-compliance with IHL by their members and to hold those responsible for such acts? (P I, Art. 85; CIHL, Rule 151)
III. Elements Contributing to Respect for IHL
6. (Documents B and C) AMISOM’s Indirect Fire Policy document states that “civilian casualties serve to undermine the mission and longer-term political objectives”. Do you agree with this statement? Why? In your opinion, how can non-compliance with IHL affect a party to the conflict?
7. (Document C) Why do you think it is important for AMISOM to “win the support of the people”?Can support from the local population facilitate the accomplishment of the mission objectives?
8. In your opinion, what can be the reputational cost of a multinational force if it is seen to be in violation of the law? Can such allegations create problems in receiving support from troop contributing States?
(Document D) In your opinion, does the Security Council Resolution, which “urged the mission to continue in its efforts to prevent civilian casualties” influence in any way the policy followed by AMISOM? To what extent may external pressure have an impact on the behaviour of the parties to the conflict?
