Upper Tribunal (Immigration and Asylum Chamber)

Whether the current situation in Mogadishu is such as to entitle nationals of Somalia whose home area is Mogadishu or whose proposed area of relocation is Mogadishu to succeed in their claims for refugee status, humanitarian protection status under Article 15(c) or protection against refoulment under Articles 3 or 2 of the ECHR solely on the basis that they are civilians and do not have powerful actors in a position to afford them adequate protection.

1. The decision of the First-tier Tribunal to dismiss MOJ’s appeal against a deportation decision made as a consequence of his conviction for an offence of robbery in January 2011 for which he was sentenced to 2 years’ imprisonment was set aside by Upper Tribunal Judge Storey, following a hearing on 5 July 2013. The judge found that the First-tier Tribunal erred by failing to give sufficient reasons for departing from the Country Guidance in force. The findings of fact made by the First-tier Tribunal were preserved.

2. MAA’s appeal against the removal decision that accompanied refusal of his asylum and human rights claim was dismissed by the First-tier Tribunal by a determination promulgated on 23 July 2013. Deputy Upper Tribunal Judge I. A. Lewis found, following a hearing on 5 March 2013, that in doing so the First-tier Tribunal had erred in law but only in respect of the humanitarian protection claim. That was because the First-tier Tribunal judge had failed to identify a cogent basis for concluding, in the light of the applicable country guidance, that the appellant fell within a class of persons who could live to a reasonable standard upon return. Once again, the findings of fact that had been made were preserved.

3. SSM’s appeal to the First-tier Tribunal was against a decision of the respondent to refuse to revoke a deportation order that had been made as a result of his conviction on 28 November 2008 of an offence of violent disorder for which he was sentenced to 3 years and 4 months imprisonment. On 4 November 2013 the decision of the First-tier Tribunal to dismiss the appeal was set aside by Upper Tribunal Judges Dawson and Reeds. That was because they found that the First-tier Tribunal had failed to resolve difference in the evidence offered by the parties and failed to provide adequate reasons for departing from current country guidance.

There is a summary of agreed facts in respect of each of the appellants, which is set out below.

The Attendance of the Parties

The composition of judgments in country guidance cases

“Special arrangements are made for the reporting of country guidance cases.  Before a case is promulgated and designated as a Country Guidance case it is considered by the relevant country convenor and the Reporting Committee and advice may be tendered to the determining judges.  Practice direction 12.2 states:

‘A reported determination of the Tribunal, the AIT or the IAT bearing the letters CG shall be treated as an authoritative finding on the country guidance issue  identified in the determination, based on the evidence before the members of the Tribunal ….   that determine the appeal.  As a result, unless it has been expressly superseded or replaced by any less later CG determination, or is inconsistent with other authority that is binding on the Tribunal, such a Country Guidance case is authoritative in any subsequent appeal, so far as that appeal:

(a)               relates to the country guidance issue in question; and

(b)               depends upon the same or similar evidence.’

If there is credible fresh evidence relevant to the issue that has not been considered in the Country Guidance Case or if a subsequent case includes further issues that have not been considered in the CG case, the judge will reach the appropriate conclusion on the evidence, taking into account the conclusion in the CG case so far as it remains relevant.”

Paragraph [12] of the Guidance note provides that where a Country Guidance decision has become outdated by reason of developments in the country in question, it is anticipated that a Judge of the First-Tier Tribunal will have considered such credible fresh evidence as is envisaged in paragraph [11]. Where there is a reasonable doubt as to whether a Country Guidance decision is still applicable, the First-tier Tribunal will determine the appeal, following which permission to appeal to the Upper Tribunal may well be appropriate. 

“Fifthly, there has, particularly in the United States, been some debate about the ex parte communications a judge may properly have when preparing his judgment.  The view there seems to be that a judge may consult with other judges but not with any law teacher.  It is without doubt fundamental that a Judge should not decide a case on a point which has not been raised in argument without giving notice to the parties and allowing them to make submissions.  That is a rule which arbitrators are expected to observe and so are judges.  But subject to that, English practice would not, in my view, frown on a judge who sought to clear his mind or test his views by discussing the matter with a colleague or a law teacher. …..  I do not think consultation with an appellate judge would be thought improper provided the trial judge did not cede the responsibility for decision which was properly his.”

                   [Emphasis added.]

We consider that, in these passages, Lord Bingham was acknowledging, with unmistakable approval, a well-established tradition in the common law world. In our estimation, this practice is unobjectionable provided that it is harmonious with the principles of independent and impartial judicial adjudication and does not infringe any party’s right to a fair hearing.  We consider these to be the key touchstones by reference to which this practice is to be measured and evaluated.

“I will do right to all manner of people after the laws and usages of this Realm, without fear or favour, affection or ill-will.”

“Guidelines and jurisprudential guides are complementary tools, the purpose of which is to promote consistency, coherence and fairness in the treatment of cases at the Board. The inclusion of such a statutory provision on guidelines and jurisprudential guides indicates Parliament’s intent that the Chairperson should be involved in the adjudication strategy of the IRB as a whole, in order to assist decision makers on matters of substantive and procedural importance.“

The published policy states that the adjudication strategy “is aimed at identifying the relatively small number of cases that merit the division’s particular attention because they are cases that have the potential to shape the Board’s jurisprudence. These cases are the exceptional, as opposed to the routine, cases”. The policy identifies a range of “tools” that the Board has at its disposal in administering its adjudication strategy: Chairperson’s guidelines, identification of decisions as jurisprudential guides, designation of decisions as persuasive decisions, use of three-member panels, conduct of a lead case and “consultation amongst members on draft decisions in accordance with the principles in Consolidated-Bathurst Packaging Ltd. v International Woodworkers of America, Local 2-69, [1990] 1 S.C.R.282”.  While there are other aspects of the IRB’s published policy, these are not germane for present purposes.

“If every judge’s judgment were vitiated because he discussed the case with some other judge, a good many judgments existing as valid and unimpeachable ought to fall; and that if such discussions were prohibited  many more judgments might fall in an appellate court because of a defect which must have been detected if the subject had been so discussed.”

This prompted the following observation (p245):

“… Discussions with colleagues do not constitute, in and of themselves, infringements of the panel member’s capacity to decide the issues at stake independently.  A discussion does not prevent a decision maker from adjudicating in accordance with his own conscience and opinions nor does it constitute an obstacle to this freedom. Whatever discussion may take place, the ultimate decision will be that of the decision maker for which he assumes full responsibility.”

         The Supreme Court was also satisfied that (p347):

“… the danger that full board meetings may fetter the individual independence of panel members is not sufficiently present to give rise to a reasonable apprehension of bias or lack of independence ….”

With specific reference to the audi alteram partem rule, the Justices considered that there was no contravention:

“…. provided that factual issues are not discussed at a full board meeting and that the parties are given a reasonable opportunity to respond to any new ground arising from such a meeting.”

Their Lordships were satisfied that the process entailed advantages which were “obvious”.  These were the avoidance of inadvertent contradictory decisions, the enhancement of the overall quality of individual decisions and the attainment of the highest degree of coherence possible (at p 347).  They gave the final word to the authors of “La Decision Institutionnelle” (Professors Blache and Comtois), page 708:

“The institutionalising of decisions exists in our law and appears to be there to stay.  The problem is thus not whether institutional decisions should be sanctioned, but to organise the process in such a way as to limit its dangers.  There is nothing revolutionary in this approach: it falls naturally into the tradition of English and Canadian jurisprudence that the rules of natural justice should be flexibly interpreted.”

         [Emphasis added.]

“……..   What I mean is that judges have a common interest, as members of the judiciary, in getting the law right and that, as a result, we are willing to listen, persuade and be persuaded, all in an atmosphere of civility and respect.  Collegiality is a process that helps to create the conditions for principled agreement, by allowing all points of view to be aired and considered ….

Collegiality helps ensure that results are not preordained.  The more collegial the court, the more likely it is that the cases that come before it will be determined solely on their legal merits (page 1644 – 1645) ……

While a judge spends much time working alone, the crucial decisional points in appellate judging occur in the company of, and in active engagement with, one’s colleagues.”

         We consider that the sentiments and principles expressed in these passages reflect the  widespread and established tradition  in the common law world, embracing both members of the allocated panel of Judges and other members of the chamber from which the panel is drawn which we have identified above.

“Every private communication to a Judge, for the purpose of influencing his decision upon a matter publicly before him, always is, and ought to be, reprobated; it is a course calculated, if tolerated, to divert the course of justice and is considered and ought more frequently than it is to be treated as what is really is, a high contempt of Court”.

         We consider that this passage belongs to the quite different context of a party seeking, by private communication, to improperly influence a judicial decision by conduct ranking as contumelious.  This expresses a long-established and fundamental prohibition which we consider to be distant from the present context.  So too is the statement in In the matter of the Ludlow Charities [1837] 2 MY and CR 316, p 342, that it is a contempt of the highest order to engage in conduct designed ”to taint  the source of justice”.  Our attention was also drawn to the statement of Lord Diplock in Attorney General v Times Newspapers [1974] 1 AC  273, p309:

            “Once the dispute has been submitted to a court of law, [the parties] should be able to rely upon their being no usurpation by any other person of the function of that court to decide it according to law”.

         Once again, this statement was made in the context of contempt of court.  The law of contempt of court has, as its overarching purpose, the maintenance of the authority and dignity of the Courts.  It is designed to prevent interference with the administration of justice.  We are satisfied that the practice described in paragraph [11] of the Guidance Note does not entail any usurpation by any other agency of the function of the designated judicial panel, does not undermine the authority or dignity of the Tribunal and, fundamentally, does not constitute an interference with the administration of justice in this context. It is far removed from conduct which would be considered contumelious and, properly understood, does not entail any usurpation of the duties of the adjudicating judges.

                        “….The participation of non-members in the deliberations of a collective body may invalidate its acts.  The decision of the disciplinary committee, for example, is likely to be invalid if any non-member of the committee has taken part in its proceedings ….”.

The duties of the expert witness

“The duties and responsibilities of expert witnesses in civil cases include the following:

1.                  Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation ….

2.                  An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise ….

            An expert witness in the High Court should never assume the role of an advocate …

3.                  An expert witness should state the facts or assumption upon which his opinion is based.  He should not omit to consider material facts which could detract from his concluded opinion. ….

4.                  An expert witness should make it clear when a particular question or issue falls outside his expertise.

5.                  If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one.  In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report ….

6.                  If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report, or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.”

(i)                       to provide information and express opinions independently, uninfluenced by the litigation;

(ii)                    to consider all material facts, including those which might detract from the expert witness’ opinion ;

(iii)                  to be objective and unbiased;

(iv)                  to avoid trespass into the prohibited territory of advocacy;

(v)                     to be fully informed;

(vi)                  to act within the confines of the witness’s area of expertise; and

(vii)                to modify, or abandon  one’s view, where appropriate.

(i)                       to ensure that the expert is equipped with all relevant information and materials, which will include information and materials adverse to the client’s case;

(ii)                    to vouchsafe that the expert is fully versed in the duties rehearsed above;

(iii)                  to communicate, promptly, any alterations in the expert’s opinion to the other parties and the Tribunal, and 

(iv)                  to ensure full compliance with the aforementioned Practice Statement, any other relevant Practice Statement, any relevant Guidance Note, all material requirements of the Rules and all case management directions and orders of the Tribunal.

These duties, also unqualified in nature, are a reflection of the bond between Bench and Representatives which features throughout the common law world.

“[24]    It seems to me to be axiomatic that a fact finder must not reach his or her conclusion before surveying all the evidence relevant thereto….

            The Secretary of State argues that decisions as to the credibility of an account are to be taken by the judicial fact finder and that, in their reports, experts, whether in relation to medical matters or in relation to in-country circumstances, cannot usurp the fact finder’s function in assessing credibility. I agree.  What, however, they can offer is a factual context in which it may be necessary for the fact finder to survey the allegations placed before him; and such context may prove a crucial aid to the decision whether or not to accept the truth of them. ……

            It seems to me that a proper fact finding enquiry involves explanation as to the reason for which an expert view is rejected and indeed placed beyond the spectrum of views which could reasonably be held.”

To this we would add that, as the hearing of the present appeals demonstrated, this Tribunal will always pay close attention to the expert’s research; the availability of empirical data or other information bearing on the expert’s views; the quality and reliability of such material; whether the expert has taken such material into account; the expert’s willingness to modify or withdraw certain views or conclusions where other evidence, or expert opinion, suggests that this is appropriate; and the attitude of the expert, which will include his willingness to engage with the Tribunal.  This is not designed to be an exhaustive list.

         The essence of the Court’s ruling in Elgafaji was:

                        “43.     Having regard to all of the foregoing considerations, the answer to the questions referred is that Article 15(c) of the Directive, in conjunction with Article 2(e) of the Directive, must be interpreted as meaning that: the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances; the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat.”

Leading cases dealing with Somalia

(a)         Mogadishu and Article 15(c)

In Sufi and Elmi the ECtHR confirmed that it did not exclude that in exceptional circumstances characterised by a high degree of generalised violence it was possible to consider that all persons were at Article 3 risk of harm:

The expert evidence

a.                  First, the relevance of clan membership, though remaining important in some respects, has changed in overall significance for those living in Mogadishu. Significant population movements have changed the numerical presence of clans in districts in Mogadishu and Al Shabaab has referred to discrimination on the basis of clan membership as being “un-Islamic” because everyone is equal in the eyes of Allah;

b.                  Second, an accurate assessment of the reach of Al Shabaab into Mogadishu is central to any assessment of the level of risk facing those living in that city. Although the withdrawal of Al Shabaab was mainly completed by mid 2012, in the sense that it no longer purported to be in control of areas of the city other than those districts from which withdrawal was completed later, it is plain that it continues to be capable of launching attacks upon carefully chosen targets within the city;

c.                   Third, the nature of the way in which Al Shabaab seeks to inflict damage has changed from classic battle methods in which armed combatants confront each other and exchange fire to what is described as “complex attacks” or “asymmetrical warfare” associated with guerrilla activities. In short, this often involves a combination of elements involved in an attack with either multiple targets hit simultaneously or successive attacks on the same target, for example with a grenade attack following on from a suicide bomb attack, a technique that those representing the appellants submit is designed to inflict casualties upon the civilians who gather in the aftermath of the initial incident.

d.                 There is a broad spectrum of circumstances in which people are living in Mogadishu today. At one end are the dispossessed living in IDP camps. As we shall see, there is a discussion to be had about who is and who is not an IDP. The evidence discloses references to “wealthy IDPs”.  It is plainly the case, though, that significant numbers of people continue to live in Mogadishu in conditions of or close to destitution. At the other end of the spectrum there are those who have been referred to by some commentators as living in “privileged” circumstances, either because they enjoy the very significant levels of protection provided by the African Union Mission in Somalia (“AMISOM”) or because they have access to considerable resources which enable them to assemble  personal security arrangements and to live in safe and secure areas of the city behind high walls and guarded gates to ensure that those gaining entry are carefully monitored. There is evidence of a very considerable economic “boom” with significant numbers of people returning from the Diaspora to take advantage of business and investment opportunities that are presently available in Mogadishu as land prices are said to be rocketing and a good deal of new construction work proceeds.

e.                  Finally, there was agreement between the expert witnesses that statistics available concerning numbers of civilians killed or injured as a consequence of the violent attacks perpetrated by Al Shabaab and others are not comprehensive or necessarily a reliable indication of overall casualties.

Dr Joseph Mullen

“In the light of the improved governance in Somalia and the enhanced security measures in Mogadishu with the departure of Al Shabaab, it appears to be the intention of the Courts to update the country guidance given in AMM and, by implication, that of AM & AM and HH in relation to the Refugee Convention and associated serious harm issues (Art 15(c)) of the Qualification Directive and humanitarian considerations….

…

This paper will summarise the security parameters upon which AMM was historically based and compare these to the current situation, focussing in particular on the influence of Al Shabaab, changed humanitarian situation, increasing stabilisation and eliciting a risk assessment in the event of returning Somali citizens…”

“… the critical question is whether there are currently any factors which would justify the broadening of the AMM exclusion which previously applied to businessmen, politicians and those of substantial economic means, to include the returning citizenry at large…. Do the improvements in governance, security, increased territorial control, relocation of aid agency and diplomatic offices from Nairobi to Mogadishu and large influx of Diaspora members warrant a universal retention of Art. 3 and arts. 15(c) eligibility?

Having observed that:

“No life solution in Mogadishu is without some degree of risk”

Dr Mullen said this:

“… In current circumstances of supposed improved security in Mogadishu, in contrast to that of July 2011 at the time of AMM, it would be unreasonable to assume that virtually the whole population (apart from the exceptional groups cited in AMM) of Mogadishu would qualify under this definition for Art. 3 treatment…

…

The ultimate question is whether the level of safety currently prevailing is adequately robust and sustainable. On the basis of the evidence submitted, its quality, coherence, it is my opinion that there are cogent evidential facts to support the proposition that Mogadishu remains unsafe for certain vulnerable groups of returning asylum seekers…. Which would suggest that AMM’s analysis of risk and its correlation to Art. 2, Art. 3 and Art. 15(c) continues to subsist for certain vulnerable categories but the exceptions should be widened.”

“Proportionately, given that the population of Mogadishu has increased, level of economic activity has increased, the currency has increased, visible returning diaspora, decisions being made by people’s pockets and choices do suggest there is a degree of durability.”

Dr Mullen then posed for himself the question of whether one should extend the group of those identified in AMM as not being at an unacceptable level of risk on return and provided the following answer:

“Yes, I think that the groups at risk currently in Mogadishu are those linked to poverty. Those lacking in resources. Those without social capital. In other words, without a clan framework to fall back on… groups who would be candidates for IDP camps. If one would be consigned to an IDP camp on return then he should be entitled to protection…. A case by case assessment is required to ensure those applying for protection are those who would not receive it from other sources.”

“However, as the security situation has improved to a degree in Mogadishu since the departure of Al Shabaab in July/August 2011, there is speculation that AMM findings in relation to Art 15(c) are no longer relevant to the current situation because of the change in the level of security. The facts cited above, which refer to post August 2011 and up to April 2013, after which security benefits appear to taper off, would suggest a situation of security that is temporary and fragile and falls short of the standard of durability required under AMM. Furthermore, there is a trend to understate security risks in the general enthusiasm to support the new government and to attract development funding….”

“With the withdrawal of Al Shabaab from Mogadishu in Aug 2011, the security situation in Mogadishu has unquestionably improved but in a rather eclectic manner…. Mogadishu has seen a period of relative stability over the last 24 months in contrast to the last 21 years… but from a very low base. The city has moved away from its recent history of running street battles involving mortars, rockets and tanks and indiscriminate bombing between Al Shabaab and the allied forces of the SNA and AMISOM. More significantly, with the election of a new President, Hassan Sheikh Mohamud, and the selection of a new Prime Minister with a newly reduced cabinet in November 2012, there have been substantive changes in governance for the better underpinning the improved security situation.”

In his oral evidence, Dr Mullen added that the withdrawal of Al Shabaab from the last few districts of Mogadishu where it had maintained a presence was completed in January 2013. In his report, noting that President Mohamud had spoken of Somalia “entering a new era with a more legitimate government and progress on security”, he pointed to less optimistic views of improvements that were to be detected, one commentator having observed that it “would take decades to establish functioning institutions”, but his own view was that:

“It would be disingenuous to argue that the Human Rights situation in Somalia has not improved, particularly at the level of legislation since AMM. The report of the UN Human Rights Commission’s Independent Expert, Shamsul Bari of 29 August 2011, or close to the date of AMM, considers that there has been an “unending saga of human rights deprivation. By contrast, the same Expert, Shamsul Bari, two years later is now full of hope” on the issue of human rights…. Within this legislative framework, the protection of vulnerable sections of the population such as IDPs, minorities, failed asylum seekers and women would be ensured….”

The reach of Al Shabaab into Mogadishu

“… there has been a rise in the number of ambushes, assassinations and suicide bombs in the Somali capital. The city has experienced its deadliest attacks in recent times during the last two weeks.”

In this context he referred also to one of the trilogy of joint reports from the Danish Immigration Service and Norwegian Landinfo’s fact finding mission to Nairobi and Mogadishu  (to which reference is made as Danish 1, 2 and 3), which have featured prominently in the expert evidence generally, saying:

“As outlined in section 2.1 of Danish 2 there has been a litany of armed attacks bearing the hallmark of a sophisticated terrorist cell, including suicide bombings remote controlled IEDs and assassinations. Soldiers travel around in armoured personnel carriers and not on foot, targeted assassinations continue, civilian casualties far outnumber military ones, as late as May 2013 a series of attacks have taken place in Mogadishu. 34 people were killed in a series of coordinated suicide attacks on 14 April 2013. So far, it was the deadliest attack since the inauguration of the new government…”

In cross-examination Dr Mullen was invited to identify where in Danish 2 it was asserted that civilian casualties “far outnumbered” military ones and he was unable to do so. He was referred to a report suggesting that there had been, in fact, a decrease in civilian casualties but Dr Mullen dismissed this as being a report by a “briefcase NGO” with no in-depth knowledge of the situation. This, therefore, is his own view of the balance of casualties between the military and the civilian and that view needs to be assessed in the light of the discussion below about that which is known of what has been referred to as weapons-related casualties or fatalities.

1.           armed conflict in Hurwaa and Karan Districts between Al Shabaab and TFG/AMISOM

2.           hand grenade attacks against TFG troops in Hawalwadag

3.           mortar shelling of the Burundian AMISOM compound in Hoosh

4.           armed clashes and shelling at SOS hospital in Hurwaa District

5.           hand grenade attacks on hotel in Waberi District

6.           heavy gunfire and shelling between TFG/AMISOM and Al Shabaab near Dayniile

7.           criminal murders (3) of random minibus passengers

8.           IED devices targeted at AMISOM soldiers in Wardighley

9.           TFG/AMISOM and AS exchanged heavy shelling and gunfire in Karan

10.              Heavy exchange of fire between TFG/AMISOM and AS

11.              Exchange of fire between Somali National Police and clan militia over illegal checkpoint at Dharkenley

12.              IED in Hodan District and IED near Tarbubka IDP camp

Dr Mullen observed that in all there were 25 fatalities and “numerous unreported injured” which constituted a significant bedrock of risk applicable to all citizens irrespective of clan or occupation.

“ … then looked at the data sheet and where there was ambiguity I adjusted numbers to give a more likely picture of what might have occurred. “

In his written response to questions raised by the respondent arising from his report, Dr Mullen had said (Q18) that:

“In reporting casualties AMISOM often equates casualties with fatalities. Many military casualties bypass the Mogadishu hospitals…. AMISOM reporting of incidents regularly uses the vague expression “exact number of casualties/fatalities could not be established” Al Shabaab generally underestimates the number of its own casualties and exaggerates the damage it has inflicted on AMISOM while ignoring the casualties it has caused to civilians…”

In cross-examination it was put to Dr Mullen that he was simply wrong to say that AMISOM did not distinguish between casualties and fatalities, a criticism he appeared, at least in part, to accept in responding:

“This is, admittedly, a more rounded interpretation.”

“There are on average several targeted killings per week in Mogadishu, four to five weekly hand grenade attacks in Mogadishu and usually more.”

And from the Danish 3 report:

“Targeted assassinations could be undertaken by anyone who could pay for this.”

The level of weapons-related civilian casualties

“However, the international organisation believed that there is a decrease in the number of civilian casualties in Mogadishu, relative to the last few years. This decrease is due to front-line fighting having moved out of Mogadishu. There are now fewer mass-casualty attacks and killings, in particular due to the cessation of shelling in Mogadishu…”

It is important to note the overall context in which that view had been expressed, the report continuing:

“Still civilian casualties remain a daily occurrence, principally due to assassinations, improvised explosive devices (IEDs) and suicide attacks, and reactions to these attacks by the armed forces. Recent grenade and suicide bomb attacks on theatres and cafes, such as the August 2012 attack on the Jezira Hotel, cause numerous civilian casualties.”

Thus, the view offered in this report, that there had been a decrease in the number of civilian casualties, was expressed notwithstanding the continued use of IEDs and suicide attacks on targets identified by Al Shabaab. This part of the Danish 2 report to which Dr Mullen was referred in cross examination continued:

“According to an international NGO working in S/C Somalia the number of civilian casualties in Mogadishu has decreased considerably compared to February 2012 and today civilian casualties are at a minimum. In July 2011 two thirds of Mogadishu was under al-Shabaab control. Bombardment and shelling killed many, but this is no longer taking place. Today you have targeted attacks and sometimes by-passers get killed. It’s a question of being at the wrong place at the wrong time.”

“…today there are occasional bombings, assassinations, etc…”

Dr Mullen said simply that he accepted Mr Burns’ professional competence. SAACID is an indigenous Somali, not-for-profit, non-religious, non-political, Non-Governmental Organisation (NGO) founded and directed by Somali women, that focuses on practical measures to enhance the life-options of women, children and the poor.

“… a much more sinister form of targeting geared towards peacemakers.”

By way of example he referred in oral evidence to the assassination of the head of an organisation that was carried out at his home. He did not identify the organisation but his comment was made in the context of his evidence of the targeting of “peacemakers”.

“The ability of Al Shabaab to kill indiscriminately is linked to two tactics widely used in Mogadishu: one is asymmetrical warfare based on IEDs, mine deployment and assassination of known individuals, such as those associated with the government, defection from Al Shabaab ranks, aid agency personnel and journalists. Events have demonstrated that Al Shabaab has the capacity through asymmetrical warfare to attempt the assassination of low ranking officials up to security chiefs, international UN personnel and even the President himself. The second tactic is the exertion of moral and religious pressure on individuals at the level of the mosque and of the street. This is aptly described at Danish3 p.7.”

In cross examination Dr Mullen accepted that there is in fact nothing to be found at page 7 of that report concerning religious pressure being exerted by Al Shabaab. He said that his source for that observation was in fact interviews he had conducted with 15 unidentified informants. What is to be found on page 7 of the Danish 3 report, though, is this:

“The international NGO (B), Mogadishu, stated that al-Shabaab does not kill civilians indiscriminately. On the other hand, when it is staging large scale attacks it does not mind if civilians are killed.”

“Frequently now we see lobbing of grenades, for example at Bakara Market. This is a different type of strategy. There are so many incidents they are no longer documented.”

Dr Mullen said also that there was now no conventional fighting as before when civilians were used as human shields but civilians remained “fair game”. He was referred to page 9 of the Danish 3 report:

“UNDSS, Mogadishu, explained that there are no recent reports of al-Shabaab having attacked or killed civilians deliberately through armed attacks….

…

Regarding IED attacks UNDSS, Mogadishu, explained that remote controlled IED attacks or roadside bombs tend to target AMISOM, SNAF and convoys and such attacks sometimes result in the killing of civilians, i.e. collateral damage.”

and he accepted that to be a correct statement.

“ While the security situation in Mogadishu has improved since then, with a reduction of open conflict and signs of a resumption of economic activity in the city, Al Shabaab retains the ability to stage lethal attacks even in the most heavily guarded parts of the city, with civilians reportedly bearing the brunt of its attacks. The SFG is reported to be failing to provide much of its population with basic security. Thus the reality on the ground, as reported by observers, remains that civilians are injured and killed every week in targeted attacks by gunmen, or attacks by IEDs and grenades.”

Forced recruitment to Al Shabaab.

“As a prelude to this discussion, there is a major emphasis on whether forced recruitment could have occurred in Mogadishu post the Al Shabaab withdrawal from the central districts of Mogadishu in August 2011…”

..

Given the territorial integration of the districts into the TFG/AMISOM jurisdiction, any continued recruitment into Al Shabaab from the madrasses would have to be more circumspect. There is also the vital intelligence function to which children were recruited…

… While overt military recruitment may have reduced, it is extremely likely that recruitment into Al Shabaab’s intelligence wing increased…”

And later in the same section of his written evidence:

“I have personally interviewed some 15 young men between the age of 16 and 24 over the past 2 years, ten of whom were interviewed post August 2011, who all claim to have been approached by Al Shabaab in and around Mogadishu and were “invited” to join their fighting units… They have recounted that it is generally a process of contacts over many months, with increasing intensity. When the approach is resisted, in most cases other family members become involved in the form of threats or forced marriage of female siblings. Ultimately assassinations of family members is threatened and sometimes carried out…. The consistency in the various narratives by persons totally unknown to each other would suggest that the narrative of forced recruitment into Al Shabaab is plausible.”

“…shows mixed evidence. There is a trend for Al Shabaab to forcibly recruit but this is now mainly in the non-central districts of Mogadishu, which are more difficult to infiltrate. On the other hand, Al Shabaab can offer financial incentives to young men who are unemployed to encourage them to join their ranks…. The coercive element in these approaches is obviously much less. … In outlying areas around Mogadishu, such as Elasha Biyaha and Afgoye it is probable that forced recruitment continues… The Elman Peace and Human Rights Centre consider that children in IDP camps and homeless children are particularly vulnerable to recruitment.”

While all of that is indeed contained within the report, it is interesting to note that Dr Mullen has not made any mention of the opening paragraphs of the section of the report from which he draws that view:

“UNDSS stated that there is no way al-Shabaab would be able to forcibly recruit or mobilize persons in Mogadishu. Al Shabaab only recruits in areas in SC Somalia where it is in control.

Regarding recruitment to al-Shabaab in Mogadishu Ayaki Ito, UNHCR, stated that he found it hard to believe that al-Shabaab is able to recruit systematically, and there are no reports on al-Shabaab undertaking forced recruitment or threatening people to be recruited. Forced recruitment by al-Shabaab in Mogadishu today does not make economic sense. However, al-Shabaab may pay persons to undertake operations on its behalf.”

And the further one reads into this section of the report the more difficult it becomes to agree with Dr Mullen’s assessment that forced recruitment is still encountered in Mogadishu. The views expressed to the contrary seem hard to resist:

“The local NGO (C) had no reports of forced recruits to al-Shabaab in the city of Mogadishu...”

“When asked… an international NGO working in SC Somalia (D) stated that it had not heard about this…”

“The NGO reiterated that it did not believe that al-Shabaab is able to undertake forced recruitment in Mogadishu…”

“Saferworld found it unlikely that al-Shabaab undertakes forced recruitment today”

“Regarding forced recruitment to al-Shabaab in Mogadishu an international NGO working in S/C Somalia (C) stated that al-Shabaab does not have the leverage to undertake forced recruitment today… and the NGO was confident that al-Shabaab is incapable of recruiting in Mogadishu.

Dr Mullen comments that:

“An outstandingly reliable commentator on the situation in Mogadishu, Tony Burns of SAACID is of the opinion that “Al Shabaab may still recruit in Mogadishu… it still has the brand and the brand is fear”

But he does not complete the comment attributed to Tony Burns, as is set out in the Danish report:

“Tony Burns… explained that he and his staff hadn’t heard of forced recruitment in Mogadishu since the 2010 Ramadan offensive.”

Significance of clan membership

“… On the other hand, there are also indications that Mogadishu is becoming a multi clan environment where discrimination against the Reer Hamar in particular has declined but not disappeared.”

“The Mayor of Mogadishu has underlined the vulnerability of citizens in general by stating that “the only real protection which people will have at their disposal is their own arms as well as clan protection mechanisms.”

However, the source for this quote is the Operational Guidance Note of 2012 and this statement was in fact made in March 2010. That does not mean necessarily that it is not still accurate but, being an observation made about four years ago, this would require reinforcement from other sources if it were to be taken as holding good today.

“The quoted Danish 3 report emphasises the continuing need for clan support and sometimes protection in the establishment of a viable livelihood. The 16 districts of Mogadishu are shaped by their clan configurations and this reflects itself in the choice of District Commissioners and their militia support. This clan dimension runs parallel to the Al Shabaab phenomenon where allegiance is to a theocratic hegemony of sharia rather than to a clan. These two concepts coexist side by side as Chapter 2 of Danish 3 elaborates.”

But it is informative to draw more extensively upon that source than the relatively brief extract reproduced in Dr Mullen’s report:

“Regarding clan protection a UN agency, Nairobi, explained that there is less risk for anyone being attacked or violated only because of clan affiliation. It does not matter whether you belong to a strong or a weak clan, or an ethnic minority group…… The clan has now become a social structure rather than a protective structure. This could be due to lessons learned during the previous clan conflicts and the civil war. People are now relating to government structures rather than clans, especially when it comes to business.

Regarding clan protection an international NGO (A) explained that this is much less of an issue than it was two to three years ago. Clan protection is no longer important as there are no clan based militias in Mogadishu. Persons returning from abroad are not at particular risk because of their clan affiliation. When asked if this also include members of small minority clans as well as members of ethnic minority groups the international NGO stated that this is the case. The NGO made reference to the Chief of Police in Mogadishu who is a member of a Bravanese minority group.”

And a little later in the same section of that report:

“Elman Peace and Human Rights Centre; Mogadishu, reiterated that it is a huge step forward that clan affiliation is no longer a concern. Even marginalized groups such as the IDPs and minority groups are no longer marginalized, harassed or intimidated only because of their clan affiliations. Thus, the security situation for members of small, weak clans and ethnic minority groups has increased considerably during the last year. It is not important which clan or group you belong to. Elman Peace and Human Rights Centre emphasized that there are no limitations in freedom of movement in Mogadishu. Anyone regardless of clan affiliation or sex is free to move around in Mogadishu and no one is being harassed at checkpoints only because of sex or clan affiliation.”

It is not altogether easy to see how this section of the Danish 3 report provides support for Dr Mullen’s conclusion that clan support is required to establish a livelihood. What this part of the Danish 3 report actually says is this:

“Regarding access to livelihood in Mogadishu, UNHCR-Somalia explained that the presence of a nuclear family is a requirement for livelihood support, as clan will not help with livelihood.”

“Regarding clan protection a representative of a Diaspora organization in Mogadishu stated that people no longer rely on clan protection. Clan protection is no longer an issue in Mogadishu, and if you feel you are exposed you will adapt by ‘laying low’. If you are laying low you are not in need of additional security or protection. This is the strategy of most of the returning Diaspora. One does not rely on the police or the SNAF for protection or justice. The representative stated that she would not even think of approaching the police as the police forces are all corrupt.

…

The representatives of an international agency, Mogadishu, agreed that the clan is no longer a main issue in Mogadishu. The need for clan protection is ‘going down’ and no one will ask you about your clan affiliation any longer. The only concern is whether you are affiliated with Al-Shabaab or not. On the other hand, whenever a person is planning to settle in Mogadishu he or she will most likely consider his or her clan affiliation before deciding where to settle down.

…

According to Mohamed Farah Siad, Mogadishu, clan is ‘zero’ today in Mogadishu; clans do not offer any protection as there are no clan militias threatening people. Clanism is only common among “primitive clans in the bush.”

Mohamed Farah Siad added that clans are only relevant when it comes to business, marriage, respect and work, and stated that “clans should not be involved in politics”.

That view is hard indeed to reconcile with what is said at paragraph 69 of Dr Mullen’s report:

“As a minority clan member in Mogadishu protection would have to be purchased at some considerable cost in order to gain a majority clan patron.”

“A corollary of clan control by the Abgal and Habr Gedir (main sub-clans of Hawiye) is that they have a shared interest in maintaining a degree of peace as the peace dividend is prosperity and an enabling economic environment. The approach is inclusive and offers opportunities to the select few with services to offer or resources to invest, but excludes the vulnerable minority clan member or person of modest means. This situation would adversely affect a low income Somali citizen such as a Gadabursi.”

Nor is it altogether easy to understand why the benefits of the peace dividend should be open only to those with services to offer or resources to invest, if such a person had a clan or nuclear family network to fall back on. The “enabling economic environment” requires not just investors and entrepreneurs but people working at all levels, including as labourers in the widespread reconstruction projects that Dr Mullen describes.

“Absolutely. Sub sub clans are unable to fulfil their obligations and so you have to fall back on the nuclear family….. The nuclear family is gaining prominence over the clan.”

Although Dr Mullen said at paragraph 78 of his report that there were other views about the continuing significance of clan membership:

“However, by contrast, the key UN organisation working with refugees, UNHCR, maintains that “clan dynamics in combination with other factors are an important element when considering risk” (Danish 3 2.1). “Newcomers would certainly attract adverse attention; including those originating from Mogadishu but have left a long time ago.”” 

Those brief extracts from the Danish 3 report may be better understood seen in their context:

“UNHCR-Somalia, Mogadishu, confirmed that someone in Mogadishu will not be at risk today solely because he/she is of a different clan, although clan dynamics in combination with other factors are an important element when considering risk, including for the IDP population. It is obvious that one is safer when he or she is residing in an area dominated by his or her own clan or if one has good relations with a dominating clan.

… Information about a newcomer, particularly, when he/she does not belong to the existing clans or nuclear families or when he/she originates from an area formerly or presently controlled by an insurgent group; would certainly attract adverse attention. Even those who originate from Mogadishu may be perceived as newcomers, if they left a long time ago and have lost all links with their clan-based community.”

“A Gadabursi (the clan of which MOJ is a member) which is a majority clan but numerically minor in Mogadishu, would therefore require cross-clan alliances and the resources to fund them to survive. Therefore, low income migrants…. or failed asylum seekers… are unlikely to be able to achieve the level of security acceptable to Arts 2, 3 ECHR and Art 15(c). This would imply exposure to violence and conversely the ability of the state to provide security safeguards to its citizens.”

With respect to Dr Mullen, this in our view is simply a non sequitur and an illustration of why broad generalisations are unlikely to point to the true position of an individual upon return. Further, and importantly, neither Dr Mullen nor either of the other expert witnesses referred to any evidence of clan-based persecutory treatment in Mogadishu in recent times. Not all failed asylum seekers lack resources or access to them. Elsewhere in his report he refers to “relatives of warlords” who have gone to the west. Dr Mullen made clear in his oral evidence generally, a Somali national who travelled to the west to make an asylum claim is very likely to have had access to significant resources:

“If one calculates the cost of human trafficking: $15,000 to $25,000. This has to be raised by family members. A returning minority clan member would be under a social obligation to reimburse a proportion of the cost of travel to Europe…. The person travelling represents a group of people because it is entirely beyond the capacity of the vast majority of Somalis to travel to Europe.”

“There are enhanced vulnerabilities arising from …. minority clan profiles (including someone like a Gadabursi who would be a de facto minority in a cosmopolitan Mogadishu) but this would have to be examined on a case by case basis.”

And at paragraph 91:

“The major clans do not appear to be demonstrably exploitative in relation to minority groups but access to livelihood opportunities are blocked unless they (minorities) have resources to invest. The question then arises is whether the characteristics of social exclusion is more operative than life threatening mechanisms in Mogadishu. Social exclusion because of cultural or economic reasons is not a life threatening experience. Therefore there is a need to have a hierarchy of risk within the new dispensation since the election of President Mohamud and a degree of substantial normalisation of conditions in Mogadishu…”

Police Protection in Mogadishu

“the only real protection which people will have at their disposal is their own arms as well as clan protection mechanisms.”

We set out below our findings on the issue of sufficiency of protection, which are informed by the evidence generally. The concluding words of this comment by Dr Mullen do not sit easily with the other evidence before us which is to the effect that clan membership has become less significant in terms of protection, as opposed to social and economic support. The explanation is, no doubt, that although the source for this comment is given as the 2012 Operational Guidance Note, when that document is itself examined it can be seen that the Mayor’s comment was in fact made as long ago as 2 March 2010.

Population Movement within and into / out of Mogadishu

“… With increasing stabilisation, there have been three factors which have acted as drivers to population movements around Mogadishu: one, post famine returns to agricultural areas where agro-pastoralism is practiced, such as the inter-riverine areas of Shabelle and Juba, two, the downsizing of the Afgoye corridor encampment due to the withdrawal of Al Shabaab from the camp and from the area in general and travel back to areas of greater stability in urban and rural settings and three: the expulsion of IDPs from inner city informal sites that are being re-occupied by their original owners and where land values have rocketed.”

Also found in this paragraph of the report is a table setting out the reduction of movement of population “within Mogadishu” stated as being 66,232 in 2011; 28,289 in 2012 and 15,723 in 2013. The total for 2013 is in fact for the first 10 months of the year and it is reasonable to calculate a “grossed up” total for the full year of 18,867, that being a reduction in the movement of persons around Mogadishu of more than 70% when compared to 2011.

IDPs and IDP camps

“… Internally Displaced Persons (or IDPs) who, in the main are destitute, vulnerable and clan vulnerable, but are highly sensitive and responsive to stabilisation, decline of conflict, risk reduction because their survival strategy has been strongly risk averse. In many respects they are the weathervane of the security status of an area…”

He said that there is ample evidence to demonstrate that life in a IDP camp is extremely difficult and challenging. At paragraph 75 of his report Dr Mullen said:

“The issue of the humanitarian dimension of the IDP problem is highlighted in the Amnesty Report. The situation is quite dire. IDPs have been living in overcrowded and unsafe settlements and remain extremely vulnerable to various forms of human rights abuses, including widespread sexual violence…”

He sets out also an extract from “the recently published Global Overview Report on People Displaced by Conflict and Violence (2013) by the much respected IDMC of the Norwegian Refugee Council”:

“Humanitarian law and human rights abuses were committed by all parties. They have reportedly attacked IDP camps, perpetrated widespread sexual and other gender-based violence, forcibly recruited internally displaced children and fought each other near civilian settlements. IDP’s health situation remained critical with most outbreaks of contagious diseases coming in areas hosting displaced people. Developments such as increased security, an improving economy and urban migration led to an increase in forced evictions of IDPs in urban centres across the country such as Mogadishu…. A number of the most vulnerable victims were unable to seek refuge elsewhere because of their limited resources.”

“They are of two kinds: those who have left their homes in Mogadishu for security reasons and have come back to re-occupy them but retain food entitlements, or others who have literally moved camp from an out of town location to an urban one (though given the current pressure on urban land, these would be in a minority).”

In a written response to a question posed by the respondent arising from his report, Dr Mullen said that he was unable to point to a “legal definition” of an IDP but referred to a 1998 UN report that used the following “descriptive definition”:

“internally displaced persons (IDPs) are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of residence in order to avoid the effects of armed conflict, situations of generalised violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognised State border.”

Thus, once an individual or a family has left their home to seek safety elsewhere, they may well continue to be regarded as IDPs, even after they have decided to settle in another district of Mogadishu in living conditions, in a physical sense, equivalent to those they vacated. The 2014 UN report has been drawn up on the assumption that all those categorised as IDPs are persons “who have not returned to their places of origin” (see page 6 of that report). It emerged from the evidence discussed by Dr Mullen that there was no basis upon which a person once regarded as an IDP would cease to be considered such, even if their current circumstances were not in themselves such as to fall below acceptable standards.

April 2012               184,000

October 2012                    184,000

February 2013        184,000

September 2013     369,000

It will be noted that the country guidance of AMM was published three months before April 2012. Dr Mullen recognises that this data, suggesting a doubling of the number of IDPs between February 2013 and September 2013 is surprising:

“Such a lack of variation between time periods in an emergency situation is an unusual phenomenon and generally indicates that there are problems in either collection or analysis of data. This becomes evident in February 2013 when it is acknowledged that there are adjustments required and the figures should be “triangulated” or cross-verified by observation. Then in September 2013, in what is assumed to be after the cross-verification having taken place, revised figures are published.”

Dr Mullen observed that the source of “the excess population” has been the sprawling IDP camp on the Afgoye road known as the Afgoye corridor or “Eelasha Biyaha” where there had been a strong Al Shabaab presence, which in 2008 had housed some 400,000 persons. He went on to say this:

“The pressure from being associated with Islamists on the one hand and the reduced tension in Mogadishu on the other, combined to convince many former Eelasha Biyaha residents to return to their homes in the city of Mogadishu. The influx of former residents back to Mogadishu and the decline in numbers at Eelasha Biyaha is a significant explanatory variable for the increase in IDPs.”

From which it can be seen that a possibly significant number of those representing the increased number of IDPs living in Mogadishu today are in fact people who have returned to their former homes rather than arriving as strangers to seek out whatever accommodation they can find.  Dr Mullen continued:

“The considerable movement of IDPs to Mogadishu may be indicative of an association between relocation and improved security but it could equally be associated with an increased number of family reunions, seeking out employment opportunities, evictions or cross border repatriations. It is significant that UNHCR, in its Population Movement Trends for October 2013 at the national level, as distinct from Mogadishu, cites the principal reasons for movement as: drought, lack of livelihood, forced return, eviction, cross border return (particularly from Kenya) ahead of insecurity, which comes near the bottom of the list…”

Who are the returnees? Risk faced by returnees

“The ability to access protection in Mogadishu would be contingent on three significant resources: financial wealth, social status and clan protection…. Returning migrant citizens without a minimal combination of these attributes are unlikely to gain access to livelihoods or safety and are likely to end up in an IDP camp. The vulnerability is compounded if the retuning citizen is from a minority clan…”

He continued:

“This immutable vulnerability can only be reversed through access to resources or patronage from a major clan member or group…”

and at paragraph 68 of his report stated:

“The very poor and ostracised are, of course, powerless to act and become passive agents in the threat-violence continuum and whose risk rating goes off the charts. Only those with a degree of power, either political or economic, can influence and shape decisions relating to their security and reduce their vulnerability…. Prosperous businessmen, with close links to the Diaspora, have at their disposal bodyguards and have means of protection. Meantime, the humanitarian crisis has worsened and minority populations have become more vulnerable. Using any classical risk index, there is a pervasive and systemic environment of risk affecting the vulnerable and minority populations of Mogadishu and this has to be acknowledged in any new CG…”

Which led him to conclude:

“Arguably, the destitute minority populations because of the lack of a social network or social capital or protective mechanisms are at highest risk and as confirmed in the UNHCR report on IDPs, are the least likely to migrate…”

“Forced repatriation of individuals of modest means, without powerful clan support networks would face a situation where, in the words of Tony Burns statement 19 August 2013… “there remains an unacceptable risk that returnees to Mogadishu city would be at risk of direct and/or indiscriminate threat of personal, psychological and economic harm from a broad range of actors and drivers” . This view is shared by the representative of a Diaspora organisation who explained “that those who are returning to Mogadishu… are mostly resourceful people who see opportunities… have business to do and/or seek political influence and positions. It would be extremely difficult to return to Mogadishu if you have no one to rely on when you get back.” Danish 3 7.2 “Diaspora returning from abroad”. The same report at 7.2 also acknowledges that some people are “staying despite the difficulties” but there is no clear indication of what distinguishes the “stayers” from the “leavers” apart from suggestions of social class, access to resources, family and clan networking. This signifies wealth, clan connections and power or the sets of factors which, in the case of AMM paragraph 1 exclude individuals from Art 15(c) consideration.”

It is, though, informative to set out a longer extract from what Danish 3, published in May 2013, has to say at 7.2 about the Diaspora returning from abroad, this being a source quoted by Dr Mullen in support of his stated view. It will be seen from this extract that there is reference also to “ordinary people” returning from the Diaspora:

“According to UNHCR-Somalia, Mogadishu, many people from the Diaspora have returned to Mogadishu, also, because they see business opportunities. In general, there is no discrimination for the sole reason of belonging to the returning Diaspora.

Regarding returns from the Diaspora, an international agency, Nairobi, explained that ordinary people returning to Mogadishu and other locations in S/C Somalia are citing improvements in the security situation as some of the reasons for returns. Others have also been shocked by what they see when they come back, especially those who have been abroad for many years.

An international agency, Nairobi, explained that Mogadishu is now a ‘buzz’, people are going around minding their own business and there is an increasing freedom of movement for everyone.

Elman Peace and Human Rights Centre, Mogadishu, explained that there is an increasing number of Somalis returning to Mogadishu from abroad as compared to October 2012. However, the 14 April [2013] attack may result in a slight decrease for the time being as many will give it a second thought before going back to Mogadishu.

A representative of a Diaspora organization in Mogadishu explained that those who are returning to Mogadishu and other locations in S/C Somalia are mostly resourceful people who see opportunities, have business to do and/or seek political influence and positions. It would be extremely difficult to return to Mogadishu if you have no one to rely on when you come back.

The representative stated that an increasing number of Somalis from the Diaspora are returning. Safety and security are issues to consider before you return as there are frictions between those who stayed behind and those who are now returning from their refuge abroad. The Diaspora is being perceived as competitors as they may take up jobs from the locals and their increasing presence in Mogadishu has resulted in price increases on goods as well as on properties.

…

Concerning the Diaspora people coming back to Somalia, Mohamed Farah Siad, Mogadishu, said that they are most welcome with their money and skills. He did not know about a general tension between local people and the ones who have returned from the Diaspora. In his opinion, the ones who have negative attitudes towards the Diaspora might suffer from an inferiority complex.

Mohamed Farah Siad added that he has told three of his sons now living in Ohio, USA, to come back to Mogadishu to work with him. He expects his sons to be back in Mogadishu in three months…

…

The representative of a Diaspora organization in Mogadishu explained that the first three months in Mogadishu are the hardest for a returned member of the Diaspora. However, most people from the Diaspora are staying despite the difficulties they may face during the first few months. On the other hand, a number of returnees are going back to their country of asylum because they could not find a job in Mogadishu. Males as well as females are returning to Mogadishu.

…

An international NGO (B), Mogadishu, explained that there are many people coming to Mogadishu these days. All flights from Nairobi, Istanbul and the Middle East are fully booked. However, the 14 April attack may for a while make people more hesitant to return. On the other hand, many people are coming to Somalia to settle.

An international NGO (C), Nairobi, stated that the most important developments at the moment are that people are coming back and staying, and making investments. This is very positive and important.

According to the international NGO (C), Nairobi, many Somalis from the Diaspora are these days coming to Mogadishu to invest and seek opportunities for economic activity. These people are dependent on a reasonable level of security to pursue their activities. Al-Shabaab’s recent attacks on the Lido Beach and on a restaurant where the new westernized middle class of Mogadishu gather had the intention to create fear among these people. So far al-Shabaab has not managed to scare people away from Mogadishu, but it is crucial that the SNG as soon as possible, and in a convincing way, can demonstrate that it is able to prevent terrorist attacks in the city.”

“The profile of returning Diaspora members includes the better educated and businessmen seeking out investment opportunities.”

He referred to two sources in this regard.  First, a BBC report by Andrew Harding dated 23 May 2013 from which we reproduce the following:

“After two decades of anarchy and misery, Mogadishu is enjoying something of a renaissance. The spectacular ruins are being patched up. Hotels are being built. There are even streetlights in some places. And everywhere you hear accents: Texan, Geordie, Minnesotan, south London, Scandinavian. Somalia’s far-flung Diaspora is coming back – in big numbers – to visit, to help out, to make money, and to find out if this renaissance has any chance of lasting. The jury is still out on that one.”

This report includes observations by residents of the city to the effect that volatility remains apparent and that “anything can happen here”. There are also examples of returnees from the United Kingdom, including a 29 year old who returned a year ago in order “to do his bitto rebuild Mogadishu” of whom Mr Harding wrote:

“He has been working for a charity that helps young people struggling to find jobs. Right now he is organising a hugely popular televised talent competition, Idols – Somali-style.”

Also found in this report is an account of an estate agent from Essex who has started to clear ground for a new development on a beach to the north of Mogadishu, having brought his 13 year old son with him.

“… Individualised returns clearly take place on a voluntary basis and it is evident from the volume of air traffic landing in Mogadishu that many expatriates are returning. These tend to be from the upper income groups but whose families remain at safe European locations.”

His source, identified in a footnote, for providing support for that assertion, is a BBC World Service report said to be “circa 29 October 2013”:

“There is anecdotal evidence suggesting that the families of virtually all the warlords have gained asylum in Europe and that the business class seats on the Turkish Airlines flights from Ankara to Mogadishu are generally the first to be sold.”

Indeed, the evidence before us indicates that all flights into Mogadishu are heavily booked and it is necessary to book in advance to secure travel on a particular date. Dr Mullen, however, says:

“… it is my opinion that even given the strong demand factor for inward and outward flights there is a weak correlation between the availability of these flights and security concerns on the ground, as travel on these flights already suggests a behaviour of a high level of risk taking…”

But this appears to be reasoning of a circular nature: rather than accepting the possibility that the heavy demand for air travel into Mogadishu indicates that increasing numbers of people consider that it is now safe enough for them to return, Dr Mullen assumes that the risk is undiminished but travellers are now prepared to accept an increased level of risk.  It is not at all clear that such an approach is the correct one.

“… returnees are viewed as being influenced by western thinking and lifestyle which would be in total contrast to the Wahabist jihadism pursued by Al Shabaab  and would be likely to elicit punishments in the form of amputations of limbs, torture, beatings and even killings, thus clear ECHR infringements.”

But in oral evidence he accepted that there was no evidence, at all, of that having actually occurred in Mogadishu in recent years.

“While a Gadabursi returnee may not stand out like a blue-eyed white European, as a returnee from the UK, his demeanour, dress, possessions would distinguish him from indigenous Somalis who have remained behind.”

Indeed, we heard oral evidence from the other expert witnesses that Mogadishu is a conservative society in which traditional dress was the norm such that a returnee would be immediately apparent because of manner of dress. However, the photographs of Bakara Market, taken recently during the visit to Mogadishu by the third expert witness to give oral evidence before us, the journalist Miss Mary Harper, discloses a man wearing what appears to be a Manchester United football shirt and another wearing a baseball cap but none of the male persons pictured in the photographs of this crowded market was wearing what appeared to be traditional dress, although all of the women were. Casual trousers and casual shirts appear to be the norm.

“… The groups that would require particular attention are those considered to be “at the bottom of the heap” and most vulnerable, such as Bantu groups, the Banjuni, the Midgaan and the other occupational caste clans such as the Eyle, Boon, Tumal and the Yibir. Coincidentally, these groups are all considered to be “Gibil madow” (dark coloured). They are also, in majority, vulnerable economically and most likely to be involved in daily labouring activities, often former agricultural workers, and residing in IDP camps. They have no homeland or land entitlements apart from by patronage. Extreme poverty therefore emerges as a key feature of continuing Art. 3 eligibility, while acknowledging its strong correlation to minority clan status. The second major group to be considered for Art. 3 status is those who have been threatened on religious grounds by Al Shabaab.”

“Financial transfers; internet; journalists; peacemakers; religious leaders; clan leaders”

And then added:

“Generally the targets selected have a link to government or international aid agencies”

And he observed also that regard should be had to the list of potential risk profiles in the 2014 report by UNHCR which, as can be seen, is somewhat more extensive:

“Potential Risk Profiles:

1.         Individuals associated with, or (perceived as) supportive of the SFG and the international community, including the AMISOM forces;

2.         Individuals (perceived as) contravening Islamic Sharia and decrees imposed by Al-Shabaab, including converts from Islam, other “apostates” and moderate Islamic scholars who have criticized Al-Shabaab extremism;

3.         Individuals (perceived as) opposing the SFG and related interests and individuals (suspected of) supporting armed anti-Government groups;

4.         Individuals in certain professions such as journalists, members of the judiciary, humanitarian workers and human rights activists, teachers and staff of educational facilities, business people and other people (perceived to be) of means;

5.         Individuals (at risk of being) forcibly recruited;

6.         Members of minority groups such as members of the Christian religious minority and members of minority clans;

7.         Individuals belonging to a clan engaged in a blood feud;

8.         Women and girls;

9.         Children;

10.       Victims and persons at risk of trafficking;

11.       Sexual and/or gender non-conforming persons (lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals);

12.       Persons with a mental disability or suffering from mental illness.”

It is notable that this extensive list does not include a specific category of diaspora returnees. There is reference to those opposing Islamic Sharia and apostates and there is evidence before the Tribunal from some sources that Al Shabaab is likely to regard those returning from the west as “poisoned” by exposure to an anti Islamic way of life so as to be regarded as spies or apostates. However, if that approach were thought to be taken towards returnees generally we would expect a more specific reference to have been made. For those reasons we consider the omission of such a specific reference to diaspora returnees to be significant. 

Dr Markus Hoehne

41: “This shows, in my view, that the battle against Al Shabaab is far from over and that Mogadishu, but also other parts of south-central Somalia, is not a safe place where ordinary Somalis (locals or those deported there) would be able to live without a considerable threat to their physical integrity and psychological well-being. The positive news that are occasionally transmitted from within Somalia are certainly correct (although I have the feeling that the enthusiasm about "Somalia rising" that was prevailing after the presidential elections in the second half of 2012 has thinned out by now. Things are getting better, but only for some people and in some places. Most people who benefit from the current situation are (diasporic or local) businessmen and members of the political elite who engage in lucrative deals with foreign companies and foreign governments.

“From 2009 to mid-2011, Al Shabaab had been the de facto government in most parts of south-central Somalia. It had physically controlled vast areas including 90 per cent of the capital city, and had delivered services from justice to health care and schooling. Out of a mixture of fear and appreciation for keeping law and order, many ordinary people supported Al Shabaab’s rule or at least tolerated it. But from mid-2012 onwards, a new trend regarding the security situation in southern Somalia including Mogadishu emerged. On the one hand, Al Shabaab was severely weakened as a military power in Somalia. It was evicted from its most important remaining strongholds in Kismayo and Jowhar in December 2012. The security in Mogadishu was strengthened to some degree and in early 2013, a sense of optimism reigned in the international media and among some external observers and Somalis that Somalia could rise again as a stable and peaceful entity -- despite the many challenges facing the new administration.”

“The evidence suggests that Al Shabaab recently reorganised itself, if anything, as a smaller movement under the radical leadership of Ahmed Abdi Godane, its amir. This, in my view, is an important reason for the stepping up of the group’s attacks in Mogadishu and elsewhere in southern Somalia. It also resulted, in my view, in the recent complex terror attack in Nairobi, Kenya. Most probably, Al Shabaab will continue to be active in Mogadishu… and will be able to create considerable insecurity in the city and beyond for the time being. It may even “divide labour” and split in an inner – Somali terror cell and a “global jihad” branch that is concerned with terror attacks in the neighbouring countries. “

Dr Hoehne detects evidence of significant changes in the structure and ideology of Al Shabaab since their withdrawal from Mogadishu. He explained how, since May or June 2013 it has purged from its ranks those that stood in the way of its version of jihad, including some senior commanders. “Pragmatists” have given way to “radical purists”. Those eliminated from Al Shabaab:

“were those standing for a less extreme course; at least they were not so much in favour of international or “global jihad” but were rather concerned about Somali (national) issues.”

Explaining that, having given up ambitions of retaining territorial control within parts of Mogadishu, Al Shabaab needs less resources in order to operate, Dr Hoehne added:

“This again frees capacities and resources to engage in more complex and vicious attacks inside Somalia and in the neighbouring countries…”

“… to interpret divisions within Al Shabaab in binary terms – between nationalists and internationalists – is misleading and simplistic…”

Escalation in violent attacks by Al Shabaab during 2013

“The findings of the joint mission indicate that Al-Shabaab has deliberately shifted tactics since May 2013, from conventional to asymmetrical warfare, in recovered areas, including the Somali capital. They target particularly the Government, State institutions and the international presence working in Somalia, including the United Nations.”

Once again, the omission of any reference to returnees from the Diaspora from this list of primary targets is to be noted. Although there had been improvements in the security situation in Mogadishu following the departure of Al-Shabaab, Dr Hoehne pointed to evidence that violent attacks launched by Al Shabaab in 2013 had increased, causing casualties. In reaching his conclusions, Dr Hoehne relied upon and referred at some length in his evidence to data produced by the NGO Safety Program (“NSP”), that data being tabulated in four charts reproduced at paragraph 18 of his report. He introduces this evidence by saying:

“Between November 2011 the time when the most recent country guidance case was concluded, and October 2013 the security situation in Mogadishu has changed considerably on several occasions. In fact, as indicated by table 1 below on security related incidents in Mogadishu January 2012 to September 2013 there was a sharp decline in security related incidents between the end of 2012 and early 2013, and an equally sharp rise of such incidents again in the first half of 2013 regarding most forms of security incidents. Only the intensity of armed clashes inside Mogadishu between Al Shabaab and its enemy forces has durably declined since May 2012. This demonstrates that Al Shabaab lost ground in the city since its withdrawal in August 2012… However, the fact that hand grenade attacks, attacks with improvised explosive devices and assassinations/assassination attempts are on the increase again since April or May 2013 shows that Al Shabaab retained a clandestine presence in Mogadishu and actually reorganised its operations in the city.”

“For many years, data on IEDs has lacked proper categorisation and a systematic approach to information gathering, leading to poor quality statistics. Since 2012, IED data categorised and processed has improved leading to a higher number of reported incidents.”

Dr Hoehne accepted that an improvement in information-gathering had led to a higher number of reported incidents, but offered no view as to how this should inform a reliable reading of the chart. Since he was aware of the concern about the earlier figures and the improvement in reporting more recent incidents, it is perhaps surprising that he did not mention that when introducing the chart in his report, the reader being invited instead to rely upon it for what it indicated.

“Somali news reports from December 2012 and January 2013 show that government and army officials in Mogadishu were the main targets of assassinations and bomb attacks and occasional shoot outs. But since around May 2013 many civilians are again falling victim to Al Shabaab attacks. Particularly damaging in this regard were larger scale (suicide) bombings that are on the increase in Mogadishu over the past months. The details on the worst incidents are (set out below).”

Despite the fact that hard evidence concerning the actual level of civilian casualties is elusive, we do not lose sight of the fact that a significant number of civilians are getting caught up in the attacks being carried out by Al Shabaab. Drawing on a report by the Secretary General of the UN dated 31 May 2013, Dr Hoehne noted that Al Shabaab continued to launch asymmetrical attacks on soft targets that “often resulted in civilian casualties”. Targeted killings and attacks were routinely reported. IED incidents rose in 2013 in comparison to 2012. He set out a number of examples in his report:

On 24 January 2013 a device hit a convoy carrying two UN personnel, who were unharmed;

On 29 January there were suicide bombings aimed at the prime minister in Villa Somalia and on 18 March on the head of National Security Intelligence Agency for Benadir, which killed 10 people, showing “Al Shabaab’s continued intent and capability to attack government and soft targets”.

On 14 April more than 30 people died in a complex attack by Al Shabaab on a regional court house. The attack, involving multiple gunmen and bombs, “was the deadliest to date in Mogadishu in 2013”. On the same day, a vehicle likely to be that of a suicide bomber hit a Turkish aid agency convoy. On 25 April a Deputy State Attorney was murdered in Mogadishu.

On 5 May a suicide vehicle targeting a Qatari delegation convoy killed over 10 people.

On 19 June 2013 an attack on the United Nations Development Program compound in Mogadishu by armed men and suicide bombers killed at least 14 people.

“The intensification of Al Shabaab attacks led to many civilian casualties in Mogadishu in recent months,”

quoting, in support, the most recent report available at the time by the UN Secretary General on the situation in Somalia, dated 3 September 2013:

“There was a surge in violent attacks in the capital. In May and June, hand grenade attacks in Mogadishu doubled compared to the start of the year. There were three times as many bombings in June as in January. Targeted killings occurred almost daily. There were at least four mortar attacks, including two against Villa Somalia on 20 May and 17 June. On 12 July, an improvised explosive device attack against an AMISOM convoy on the airport road in Mogadishu resulted in more than 17 civilian casualties. On 27 July, a complex attack by Al-Shabaab against a facility adjacent to the Turkish Embassy resulted in the death of one Turkish security officer and one civilian, and injured at least eight others. (emphasis added).”

It might be noted that this is broadly in line with the information recorded by NSP, discussed above, although no specific account is taken, when referring to the number of bombings being three times higher in June as compared with January, that most of the hand grenade attacks were unsuccessful and caused no casualties. The same cannot be said, though, of IED attacks, although, as we have seen, the NSP data does not disclose numbers of casualties.

“Al Shabaab are staging increasingly complex attacks in Mogadishu involving a combination of car/truck bombs, suicide bombers, and gunmen […] there are no truly secure districts in Mogadishu. This is particularly the case now. There are now as many, if not more, assassinations and grenade attacks in the city as there were when the city was held by Shabaab. All trends -- grenades, IEDs, running street battles, assassinations, etc -- indicate that security is deteriorating. Some thought that this is just down to the “Ramadan offensive”, but the statistics suggest that this is an ongoing trend from about March this year and that there is no reason to believe it will subside now that Ramadan is over.”

“In a press communiqué dated 18 April 2013, the so called Press Office of Harakat Al- Shabaab Al- Mujahideen claimed responsibility for the killing of “127 Somali intelligence agents, officials and spies in Mogadishu” …”

This seemed unlikely to be correct because, the report continued:

“However, the high casualty figure appears to be propaganda, since, according to UN statistics, only 22 individuals were assassinated by Al-Shabaab between January and March 2013”

Asked whether propaganda of this sort is a tactic used by Al Shabaab, Dr Hoehne readily agreed but pointed out that, according to the NSP chart, rather more than 22 individuals were subjected to successful assassination attempts between January and March 2013.

11 October 2013 Close to 10 blasts target Somali forces in Mogadishu

Explosions have been targeted at government forces in Mogadishu’s Hamar Jajab, Hamarweyne and Waberi districts. Other explosions occurred in Dabka junction, Taalada Sayidka at Maka al Mukarama Road, Hamarweyne police station, police academy. A witness told Shabeelle (the privately owned website publishing the news report) two hand grenades were hurled at an army base in Waberi but causalities remain unknown. Another blast was heard at military base at Maka al Mukarama Road near the headquarters of the ministry of Interior and National Security…”

This is a further clear indication of the targeting strategy of Al Shabaab. Dr Hoehne was invited to comment upon the following observations found in Danish 3:

“The use of IEDs as part of Al Shabaab’s tactics aim at fixing AMISOM forces on all their fronts as they expand the area and scope of their military operations. This has both a physical and psychological effect. Al-Shabaab attacks AMISOM at its vulnerable points while projecting the image that Al Shabaab has a more pervasive presence in Somalia than it does”

His response was:

“That’s an interpretation of what Al Shabaab thinks. I disagree with that presumption.”

We confess to being puzzled by that response. Dr Hoehne did not explain (and to be fair he was not pressed on the point) why he felt that Al-Shabaab would not wish to overstate its pervasive presence. Indeed, that would seem to chime with its ambition to generate a feeling within the civilian population that the security forces could not deliver security and safety to the citizens Mogadishu.

Civilian casualties

“Scores of civilians have been killed between 2012 and January 2013 by gunmen, through indiscriminate use of force by armed groups, or in bomb attacks. The dramatic situation of civilians in Mogadishu has been reported by Midnimo.com, a Somali website, which reported on 23 September 2012 that "Mogadishu's security situation has deteriorated and more than 30 people were killed in the capital in the last three days only."

This source of information must be seen for what it is. First of all, it is common ground and agreed between the witnesses that the position changed significantly after January 2013, and particularly a few months later when Al Shabaab completed their withdrawal from Mogadishu so that what was happening in Mogadishu during this period is unlikely to be a helpful indicator of the present position.  This much is recognised at paragraph 33 of the report, where Dr Hoehne reproduces an extract from the report of the Independent Expert on the situation in Somalia, Shamsul Bari, dated 16 August 2013, noting that then the major concern was civilians getting caught up in the cross fire, something that ceased to be a regular risk following the departure of Al Shabaab from the last districts of Mogadishu where it was clinging on to territorial control.

“The Report of the Independent Expert on the situation of human rights in Somalia, Shamsul Bari, dated 16 August 2013, indicated the continuing massive human rights problems in much of Somalia. In paragraph 40 of his report he stressed that

"[…] Before the withdrawal of Al Shabaab from Mogadishu in August 2011, the major concern was civilians caught in crossfire; the new environment [in the reporting period until August 2013] has resulted in displacement due to military operations, increased incidence of sexual violence against women as well of sexual exploitation and abuse, conflict related-detention, targeted assassinations, unlawful killings and the use of improvised explosive devices.

He added in paragraph 42 that "[…] available reports indicate that civilian casualties have continued, resulting mostly from aerial attacks, as well as naval and ground engagements by pro-Government forces, including international forces”. The independent expert also found in paragraph 44 that “Al Shabaab increased the use of victim-activated (pressure plate) improvised explosive devices. Moreover, it continued to perpetrate suicide attacks, beheadings and summary and extrajudicial killings […].”

In his most recent report on Somalia dated 3 September 2013, the UN Secretary General mentioned in paragraph 39 that “Civilian casualties and extrajudicial killings were frequently reported in conflict areas, with civilians caught in the crossfire between the parties”. The head of a Mogadishu-based research institution, whom I asked for his assessment of the security situation in Mogadishu, with particular focus on the situation of a returnee to a city from abroad (without privileged access to security, like government officials or well established businessmen) wrote me in a mail dated 2 November 2013:

[…] I can tell you that the notion that security has improved for ordinary Somalis that European countries can now deport to Somalia is deeply worrying. Even if they are Hawiye, the nature of the threats they face are not clan warfare and can’t be protected by other clans; people face serious threats from al-Shabaab. And individuals returned from the Diaspora are particularly in jeopardy as they become target both for al-Shabaab and Somali security forces who suspect that they might be rejected from Europe due to their extremist views. In short, this is no country for returned Diaspora. The threats are grave and the price people pay could be ultimate. Even if people have and can afford bodyguards, like me, my colleagues and I face great dangers because of the work we are doing.

Mail dated 2 November 2013.”

“Some reflections on the situation in Somalia

After more than 20 tortuous years of armed hostilities, which still continue in some areas, Somalia has reached a turning point. While there is still a long way to go to return to normalcy, there are visible signs of change all around. The palpable improvements in the security situation in Mogadishu and in an increasing number of areas in the country is reflected in the return of an impressive number of people from the diaspora, including businessmen lured by the promises that have been made. Both international and United Nations flights to and from Mogadishu are full. Business activities and construction of buildings are on the rise. Though serious concerns remain about the security situation as a result, for example, of clan infighting in Kismayo and Jubaland, there are clear signs of hope in the air.”

And further, as recommendations being made:

“For the international community

Since there is a more committed and popular Government in Mogadishu now, it would be prudent for the international community to provide it with the support it genuinely needs to re-establish Somalia as a normal, cohesive and stable State. The opportunity to break the back of the insurgents is clearly in sight. This can best be achieved if popular backing for the Government and its efforts is enhanced through, among other things, specific support to the Government’s human rights road map. States and other donors may wish to select specific areas likely to be articulated in the road map for priority support and implementation. Somalia should not be allowed to slip back to lawlessness and chaos.”

Security / protection needs for returnees

“In Mogadishu, you have to have a guard. They consider you as a foreigner [coming from abroad and by clan not belonging to the local majority group called Hawiye]. The situation is a little better than three years ago [when Al Shabaab was fully in control]. But still, Al Shabaab is around. They plant bombs, some people get killed. I know myself two Somali women from the diaspora in the UK who visited Mogadishu for summer holidays and got killed in bomb blasts.”

In his oral evidence Dr Hoehne said that he had no evidence to support or confirm this account of two unidentified women travelling to Somalia from the United Kingdom being killed.

“I do not think everyone would have to pay that. It was a land dispute.”

“… There are reports of Shabaab operatives acting as “guns for hire” by individuals bearing a grudge against people….. Land disputes are also on the rise…. Following the departure of Al-Shabaab from the city many of the Sharia court systems are not operating effectively. So people are taking the law into their own hands.”

“… it is my opinion that upon return to Mogadishu MOJ, who lacks orientation in Mogadishu due to his absence from Somalia for over ten years and who belongs to a clan (Gadabursi) that has no strong presence in Mogadishu and who personally lacks an active and powerful and rich support network (as one diaspora Somali who recently travelled to Mogadishu stated he needed (Mr A) about 15,000 USD for 2 months protection…. will most probably be seriously disoriented and vulnerable in the complex environment of conflict and violence that in this form – involving Al Shabaab attacks – did not exist in the early 2000s when he and his family left Somalia. Without basic orientation and effective protection in Mogadishu, MOJ would be at a very high risk of getting caught in cross fire or being otherwise hurt through bomb attacks or explosives along the way.”

“.. returning diaspora tend to be transported by the organisations they are working for or with the assistance of wealthy relatives. It is commonly said that those that have remained in the city are able to spot “returnees” by the way they walk or “carry themselves” meaning even women in full burqa can often be identified as “outsiders”.

“You are considered to be westernised. It depends very much on your individual behaviour. People who know what has been expected of them on return do not run around inappropriately dressed. It is self-protection. You can do things to avoid problems. But, diaspora returnees are identified by the way they walk etc. The way they dress. Local people can identify diaspera members. Some things are out of your hands. You need to be up to date with language. There has been considerable dialectical change. Somalia and dialects of Somalia. All know a form of Somali in southern version vocabulary -- too many English words. You would not find the right words immediately.”

“Mogadishu — Somalis who have returned to their homeland from abroad have shrugged off al-Shabaab's recent threats that it would target them because they "have been taught garbage and sins, and have lost [their] religion and are being used [to spread evil]."

Al-Shabaab commander Ali Mohamed Hussein, known as Ali Jesto, made the announcement December 29th, saying the returnees "will be killed and fought against in the same manner" that al-Shabaab fights against the Somali government.

"They are working for the infidels, and since they are working for the infidels, they are the same as the infidels they are working for as far as we are concerned," he said.

Hussein also warned Somalis to stay away from government buildings, public venues frequented by government officials, and from foreign aid agencies and their workers as they all would be targeted in the group's attacks. Days later, al-Shabaab claimed responsibility for a New Year's Day twin bombing at the Jazeera Hotel in Mogadishu that killed at least 10 people and injured many more.

Returnees unshaken by al-Shabaab threats:

Khadija Ali, a 38-year-old mother who returned from England in 2013 to visit her sick mother in Mogadishu, told Sabahi she does not think much of the threats, and says the terrorism brought about by al-Shabaab cannot chase returnees away.

"I am advising every diaspora returnee to persevere through any threat that comes from the terrorist groups so that they are defeated," she said. "We should not be demoralised. What they want is for us to become demoralised and flee our country, and we will never accept that."

"Al-Shabaab will end up fleeing the country if we persevere," Ali said.

Ahmed Salad Kulmiye, a 60-year-old who returned to Somalia in 2013 from England to collaborate with local youth-based organisations in capacity building projects, said al-Shabaab's threats against the diaspora will not change their commitment to work in their country.

"They want to isolate the government from the people, but I do not think that is possible," Kulmiye said, commenting on the warning the militants issued against citizens who seek services at government buildings.

Kulmiye challenged al-Shabaab's claims that returning Somalis are engaging in sinful acts and said those statements were excuses for the group to justify their unlawful actions.

"There are no [night] clubs to dance or do other bad things [in Somalia], and I also have not seen any places to drink alcohol," he said, adding that Somalis will turn a deaf ear to the militants' threats.

Rowda Abdi, a 55-year-old returnee from England who opened an electrical appliances store in Mogadishu's Hamar Weyne district, told Sabahi the country's progress should not be hampered by the threats from al-Shabaab or the explosions that take place in Mogadishu.”

In response to this, Dr Hoehne said that although returnees from the west would raise considerable levels of suspicion, that did not mean that all will be treated as enemies of Al Shabaab. But he qualified that response by saying that he agreed with what was said by the Tribunal in AMM to the effect that the only returnees who would not be treated as an enemy are those who sought to join Al Shabaab.

“SOMALIA: Mogadishu on the up

MOGADISHU, 18 May 2012 (IRIN) - It is Friday morning in Mogadishu and Lido beach presents a scene reminiscent of seaside towns around the world. At the top of the beach, women sit with their wares, selling water and ice-lollies from cool-boxes. The middle-beach is dominated by young men playing football using driftwood as goalposts. At the water's edge, boys and girls, the latter heedless of their long flowing garments, hurl themselves into the waves or bob on the surface like apples.

"We're on holiday", says Ibrahim, a Londoner in his twenties who was born in northern Somalia. Ibrahim is travelling in a group of 20, all from the UK. "We came here for the beaches", he said. On the road behind him, blue lettering advertises the Indian Ocean Star, a new beach-front restaurant and bar.

Bashir Osman has facilitated journalist visits for years and now plans to capitalize on the swelling ranks of visitors like Ibrahim who are choosing, for both business and personal reasons, to come to bullet-ridden Mogadishu. Osman has purchased 500-metres of beachfront land a few kilometres south of the international airport compound, where he hopes to open a restaurant and eventually a hotel. His infectious fondness for Mogadishu belies a strong philanthropic streak.

People are returning and reconstruction is under way. According to the UN Refugee Agency (UNHCR), 3,800 people returned to Mogadishu in March alone. From afar the city glints with shiny new tin roofs dotted among dust-covered ruins and camps. Private operators are offering electricity in the old town for US$30 a month. Fishermen are enjoying a healthy demand for shark-fins from Dubai and the Middle East, with a shark fetching as much as $500. Building materials lie in piles on street corners, where camel's milk and cappuccino vendors ply their wares.

International NGO and diplomatic missions are also coming back - according to a UN source, Britain has already identified the plot for its permanent diplomatic base on the airport compound - and property prices have spiked. According to Osman, a 100-square metre plot near K4 in the city centre sold recently for $2million.     

"The key is security", said Abdullahi Godah Barre, minister for planning and international cooperation, of the city's renovation. While African Union troops have largely taken Mogadishu and continue to push beyond the city limits to secure outlying areas where Al-Shabab operatives remain obdurately in place, the Somali capital is still in counter-terrorism mode, and kidnap and ransom, improvised explosive devices, and suicide bombers remain an everyday threat.”

Having set the scene with that somewhat optimistic outlook, Mr Toal drew attention to reports of attacks carried out on facilities thought to be frequented by diaspora returnees. The first is a report of a suicide bomb attack on a restaurant near Mogadishu’s Lido beach resort in February 2013 in which 2 people were killed:

“Mogadishu — Twin explosions have rocked a restaurant near the Lido resort beach in Mogadishu, Friday killing two people including the suicide bomber and wounding seven others.

According to witnesses, the first attack was by a suicide bomber wearing a vest packed with explosives that blew up inside the restaurant but only killing the perpetrator.

The second explosion was a car packed full of explosives which killed one person and wounded seven others and destroyed the perimeter walls.

Ahmed Hassan, who was at the restaurant, says that the situation turned quickly to chaos after huge explosion with smoke and dust filling the whole restaurant.

“Two suicide bombers in Somalia appear to have targeted a second restaurant owned by a British-Somali businessman.

Witnesses say that four people, including the two alleged bombers were killed on Saturday in twin explosions near the Village Restaurant in Mogadishu. A guard who stopped the bombers from entering the building was killed in the attack, along with a civilian.  A total of 10 people were wounded.

The restaurant is popular with government officials, journalists and politicians.     

In September, two suicide bombers attacked another co-owned Village Restaurant in the capital, killing 15 people.  At least three journalists were among those killed, including the Somali National Television director.      

The African Union peacekeeping force in Somalia (AMISOM) said it suspected al-Shabab militants were behind the September attack.

The al-Qaida-linked group controlled parts of the capital until last year when it was driven out by Somali and AMISOM forces. However, the militant group has continued to launch attacks in the region.”

Once again, it might be noted that this report discloses one civilian fatality and that the restaurant is one “popular with government officials, journalists and politicians” each of which groups are seen by Al Shabaab to be a legitimate target.

“Al Shabaab may well get economic returnees who try to make a difference. Al Shabaab said they potentially see returnees as opponents. All those documents show that Al Shabaab has a clear strategy of targeting dispora returnees who try to make a difference. These attacks all carry high risk of killing targeted at returnees who identify themselves as visible by opening restaurants -- encouraging women to swim with men which makes much anger for Al Shabaab.”

It is, however, really quite difficult to see how that answer can be drawn from the material addressed. It seems clear that the targeting disclosed by the attacks identified is not aimed at diaspora returnees, nor those involved in economic regeneration, but (i) civilians engaging in activities that might be disapproved of by Al Shabab, such as mixed gender swimming at the beach; and (ii) places frequented by government officials, politicians and journalists. Notably absent from those news reports is any suggestion that diaspora returnees were, as a group, being targeted. 

“Popular hang outs for the Somali diaspora are one of the main targets in Mogadishu at the moment. There have been a number of attacks on restaurants. I was in Mogadishu when the last attack occurred on the Maka Al-Mukarama Hotel…. The Village chain of restaurants have been attacked three times now!”

However, at page 239 of the “Other background materials” section of the appellants’ documentary evidence bundle is a report from Aljazeera about this attack on the Maka Al-Mukarama Hotel which includes this:

“Al-Shabab claimed responsibility for the blast.

"The target of the attack was apostate security forces and officials. The attack was successful," the group's spokesman for military operations, Sheikh Abulaziz Abu Muscab, told Al Jazeera.

…

Al-Shabab have said that they will keep up their campaign against the new government…”

“It’s possible.”

Risk from Undisciplined soldiers

“… it features statements by the head of the Somali military court and the minister of defence that clearly indicate that looting and abuses of civilians by Somali soldiers is a serious problem.”

However, in cross-examination Dr Hoehne accepted that neither had in fact used the term “serious problem”. Dr Hoehne justified his choice of vocabulary on the basis that:

“They saw the need to set up the court. How I interpreted this was that there must have been sufficient cases so they had to act.”

We do not accept this evidence of Dr Hoehne.  His own interpretation of this does not appear, on its face, to be justified. His justification for his assertion that it was statements by the head of the court and the minister that clearly indicated that there was serious concern appears, on the basis of what he has said subsequently, not to be correct. He now says that it was the fact of the setting up of the court that indicated that there must have been serious concern entertained about looting by soldiers, rather than any statement that was made on the You Tube clip referred to. That is not what he said originally.

Significance of Clan Membership

“Moreover, clan protection does not function automatically. In the face of ideological confrontations the “clan front” tends to get porous and sometimes crumbles. This means that if confronted with Al Shabab, for instance, clan support often does not really help or even materialise, since the ideology of the group in many ways opposes clan belonging and divisions. It emphasises the unity of all (true) Muslims. Clans support and protection is also sometimes dependent on the "value" a clan members has for the community. If a person is, for instance, very poor, a drug addict, a notorious criminal or a prostitute, relatives will not or only unwillingly offer support and protection.”

That evidence is consistent with the view offered by Dr Mullen of the declining significance of clan membership in Mogadishu and the analysis that clan membership is now more relevant to the issue of social support rather than protection. In his written response to questions raised on his report Dr Hoehne added:

“Clan identity in Mogadishu and the surroundings has been cemented in the past 20 -- 30 years. It is the most important social construct in the city and is therefore one of the most important factors to consider when arranging security.”

And in his oral evidence Dr Hoehne said:

There are no “clan militias” as such. When a militia is required a person will assemble a group drawn from his own clan to address a particular purpose.

Thus, when a person looks to his or her clan when security is required, that person is more likely to be looking to relatives, who would of course be fellow clan members, rather than to a clan militia as that term has previously been understood. Dr Hoehne explained, in response to an enquiry as to whether one would have to pay for “family protection”:

“It depends upon your profile. You may be able to have just good friends or relations to protect you. If you are high profile or involved in a high value legal case you may want additional security.”

That seems to us to be important evidence and a conclusion that flows clearly from the evidence we have discussed above. A person whose profile is such that he or she may be personally targeted may well need visible security to deter such targeted attacks or to defend against them. But in respect of a person who is unlikely to attract personally targeted attacks, any risk arising from indiscriminate violence is unlikely to be reduced or avoided by retaining hired bodyguards, save perhaps to the extent that such person may be able to provide local knowledge of areas to be avoided. Such information and advice would also be available from family and friends familiar with the area.

“Most clans and sub-clans have their own neighbourhoods in Mogadishu. Bigger clans have their own districts with District Commissioners representing that clan. Mogadishu is heavily dominated by the Hawiye clan. Non-Hawiye clans – such as the Gadabursi – will often be confined to smaller neighbourhoods where they can rely on the support of their fellow clansmen.”

IDPs and IDP camps

“I think they remain IDPs. If they stay for years and marry a local girl and sell their other property it is possible, but my thinking is that they are IDPs.”

To confirm that his answer had not been misunderstood, Dr Hoehne confirmed that “a good proportion of IDPs” would have resettled within Mogadishu and an IDP could be someone who had moved from one district of Mogadishu to another.

Who benefits from the “economic boom” in Mogadishu?

“A tiny proportion. 89% are poor. The remaining 20% will be a bit better than being poor. A little better than “barely surviving”. Possibly 1% or 2% of the population benefit from the last two years economic development.”

Leaving aside the problematic arithmetic inherent in that answer, it can be seen, at least, where the figure of 89% is taken from. Dr Hoehne was referred to the Somalia Human Development report for 2012 at page 580 of the appellant’s bundle from which he drew attention to this comment:

“In south central Somalia 89 percent of people are poor across several dimensions, compared to 75 percent in Puntland and 72 percent in Somaliland.”

But what needs to be added to that comment is the context from which it is taken. The sentence that precedes it is as follows:

“The divide between urban and rural populations is significant – 61 percent and 94 percent respectively.”

Thus, the figure of 89% does not relate to Mogadishu, but to South Central Somalia generally, and leaves out of account the urban/rural differentiation emphasised by the author of the report. This illustrates a characteristic that is apparent from Dr Hoehne’s evidence generally that he consistently presents the least positive interpretation of the source material he draws upon.

“A very tiny fraction of the elite. The vast majority of people are struggling to survive…”

We do not accept that to be a correct view.  The evidence is of substantial inward investment in construction projects and by entrepreneurs returning to Mogadishu to invest in business activity. In particular we heard much evidence about hotels and restaurants and a resurgence of the hospitality industry. It does not, perhaps, need much in the way of direct evidence to conclude that jobs such as working as building labourers, waiters or drivers are unlikely to be filled by the tiny minority that represents “the elite”. Indeed, Dr Hoehne suggested that SSM, on whose behalf he was being asked questions:

 “could probably get a job as a waiter…”

although he said that there would probably be much competition.

“I do not think so. What is a definition of durable? The government was formed in second half of 2012. There were large financial pledges in 2013 and substantial development construction started in 2012 and early 2013. All this could be undone within weeks if Al Shabaab mounted -- if they established a larger force -- managed to recruit more fighters. If they get more support from Al Qaeda -- more finance.”

He paused, reflected upon what he had said, and added:

“Maybe that is a speculative answer by me.”

Mary Harper

“I speak on an almost daily basis to contacts in South Central Somalia, including members of central and regional governments, think tanks, non-governmental organisations, the security forces and other armed groups, including the Islamist group, Al-Shabaab.”

She has produced three reports, one commissioned on behalf of each of the appellants. Unsurprisingly, there is a degree of overlap in those reports which we will not need to revisit.

“When the tribunal looked at the situation in Mogadishu for the last Somali Country Guidance Case (November 2011), it found that “there remains a real risk of Article 15(c) harm for the majority of those returning to that city after a significant period of time abroad” unless that person is “connected with powerful actors or belonging to a category of middle class or professional persons, who can live to a reasonable standard in circumstances where the Article 15(c) risk, which exists for the great majority of the population, does not apply”. For the reasons outlined in this report, it is my opinion that there continue to be significant risks for returnees who lack the resources and connections to ensure that they have an adequate degree of protection.”

Al Shabaab – a change of tactics

“By withdrawing from most towns and cities, Al Shabaab no longer has to concentrate its resources on conventional battles and holding frontlines. This change of tactics has helped the group cope with the loss of some of its key sources of revenue, especially Mogadishu’s Bakara market…”

…

“The security situation in Mogadishu has changed significantly since Al Shabaab’s abrupt withdrawal from the city in August 2011. There are no longer running battles involving heavy weaponry between Al Shabaab and government troops, backed by African Union forces and Western security advisors. But the city remains dangerous, with regular acts of violence carried out by Al Shabaab, the Somali security services and other armed groups and individuals. Civilians are often caught up in the violence.

….

The violence has become more unpredictable because a conventional war is no longer being fought. Mogadishu is no longer a city of frontlines; attacks can happen almost anywhere at any time.

….

Al Shabaab has changed tactics in Mogadishu, in some ways reverting to what it does best, which is asymmetrical, insurgent style warfare. It carries out regular attacks, using suicide bombers, car bombs, grenades and improvised explosive devices. The scale, sophistication and regularity of these attacks has increased in Mogadishu in 2013.

…

According to the lawyer […] who works for a Mogadishu-based think tank, “there are only a few areas in Mogadishu that are considered safe”. Much of the rest of Mogadishu isn’t really secured – those are the areas that many of us won’t or can’t go to. Many of these areas are controlled by Al Shabaab at night and the government forces can’t really do much about it. Security here is very fragile.” (interview 17 November 2013).

Risks for civilians in Mogadishu

“Civilians often bear the brunt of the violence, as many of the attacks occur in public places, including restaurants, hotels, roads and roundabouts. Civilian casualties have also been high in attacks on government and foreign targets, or on specific individuals…”

Providing a graphic explanation of this so called “asymmetrical” style of warfare, Ms Harper continued, having recalled that previously Al Shabaab would plant roadside bombs intended for vehicles containing government or military personnel:

“It is now ramming cars packed with explosives into public buildings, government offices and the premises of international organisations. Armed men, often wearing suicide vests, then storm the buildings, shooting and throwing grenades before blowing themselves up. An example of this type of assault occurred on 7 September 2013, when Al Shabaab attacked The Village restaurant in central Mogadishu. First, a car bomb exploded outside the premises, then a suicide bomber blew himself up in the crowd of civilians who had rushed to help. About 30 people were killed.”

“The Mogadishu-based Lawyer […] said “It is a well known fact that Bakara is controlled by Al Shabaab, and that many explosions and killings happen there on a daily basis.”

However, it has to be recognised that such a view does not sit easily with the evidence given by the other two witnesses, neither of whom spoke of daily killings being perpetrated by Al Shabaab within Bakara Market. Ms Harper herself moved to qualify the view expressed by the lawyer whose assessment she draws upon by saying this:

“Although Al Shabaab does not control Bakara market in the sense of having fighters openly patrolling the area by day, it retains a powerful influence there, and in a number of other districts, not only because it continues to carry out acts of violence there, but because it still to some extent controls people’s minds, and therefore the way they behave. However, it does not control the economy of Bakara market in the same way it did when it occupied most of Mogadishu.”

In her oral evidence, Ms Harper added this in response to a question as to how people react to Al Shabaab sympathisers:

“It is difficult to know who is an Al Shabaab sympathiser. From my own experience in 2012 walking around Bakara market surrounded by five or six security guards, people showing me around who were very familiar with the area would sometimes point out people who were Al Shabaab. I witnessed the police roughing up a young boy who was carrying plastic bags. I was angry – why are you beating him? They showed me in the bag – stuff to make an explosive device.”

We make two observations about this evidence. First, it shows that, at least on this occasion while Ms Harper was there to witness it, the police were alert to the need to do what can be done to protect the public from terrorist attacks, even identifying a child as a carrier of explosive materials and removing that risk. Second, Ms Harper has only the word of those she was paying to protect her against Al Shabaab personnel to confirm that such persons were in fact present during her visit to the market. She gives no indication of what behaviour or characteristics disclosed the Al Shabaab association. Nor did that perceived association, if correctly identified by her hired bodyguards, translate into any actual risk of harm on that occasion. Further, Ms Harper recognises that Al Shabaab no longer controls Bakara market and no longer extracts revenue from it.

Forced recruitment to Al Shabaab

“Deportees and returnees would also be vulnerable to recruitment by Al Shabaab, either by force or voluntarily. It is very difficult to find employment in Mogadishu and elsewhere in South Central Somalia, especially for those who are stigmatised such as people with criminal records deported from the West. Such people might gravitate towards Al Shabaab because it offers an occupation and a monthly wage.”

On examination, it is difficult to see that what she describes relates to forcible recruitment at all. Ms Harper added:

“Members of the diaspora have often been used as suicide bombers by Al Shabaab, which has established special training camps for this purpose.”

The source offered to support that assertion is Ms Harper’s own book “Getting Somalia Wrong”, published in February 2012, which was not put before us as part of the evidence. It is hard to find within the evidence before us anything to support the view that diaspora returnees have “often” been used as suicide bombers, and harder still to find anything to support the assertion that those carrying out suicide missions on behalf of Al Shabaab have been forcibly recruited, against their will. 

“explained how his brother joined Al Shabaab, how minorities such as the Jareer join Al Shabaab because it enables them to seek revenge, how Al Shabaab gets people to join by saying they have relatives in the group …”

However, none of those routes to membership of Al Shabaab involve forced recruitment. That this informant provided Ms Harper with a list of ways Al Shabaab added to its numbers that did not include forced recruitment tends to suggest that it was not considered, at least by this informant relied upon by Ms Harper as articulating a view worthy of recording in her evidence, to be significant.

“It depends how you define forced recruitment. Al Shabaab does not now go into schools and public places and forcibly recruit. But members of the security forces and others have described ways in which Al Shabaab recruits informants or people who can carry out activities for them in Mogadishu. For example, Al Shabaab recruits from the security forces. They go to a house or the place where they stay and say in front of their family to the person: we will not hurt you or your family if you provide information. Assistance through intimidation. How would Al Shabaab do what it does without getting good information?”

When pressed, she added that this was not in fact restricted to members of the security forces as “some other people in Mogadishu are being asked”. Asked to explain further, she said that “young men” were approached in a variety of ways:

“… If a member of a minority clan they are told – Al Shabaab does not discriminate in terms of clan – everyone is equal in the eyes of Allah - so one way to elevate social status or even to get revenge for violence to the family in the past when minority clans suffered- was to join Al Shabaab. Also, people are offered financial rewards for doing particular things for Al Shabaab.”

That does not sound much like forcible recruitment. This evidence suggests that security forces are the main target of forced recruitment attempts. We do not accept that this evidence provides support for the assertion that returnees to Mogadishu face a real risk of being subjected to forced recruitment to Al Shabaab.

Clans and Militias

“According to the Home Office Operational Guidance Note of September 2013 “There are about 10,000 militiamen in Mogadishu who are not formally integrated into government forces”. Armed groups and individuals conduct targeted and random killings, robberies and seizures of property.”

This does, however, need to be considered carefully. We do not understand Ms Harper’s evidence to be that up to 10,000 armed militia are moving around Mogadishu killing, robbing and seizing property, although it is not hard to accept that some criminal elements do act in such a way. She explained in her oral evidence that it was necessary to distinguish between bodyguards, who would also be armed, and those armed individuals who were associated with a militia. But she attempted no numerical division between such categories. Her evidence that militias were clan-based groups that could be “activated” when needed by powerful business figures or politicians does not sit comfortably with the evidence of Dr Mullen and Dr Hoehne who spoke of militias being “assembled” when the need for specific protection arose.

“That is not their role. In the current context that is not what they do…”

When pressed for her opinion as to how many of the 10,000 militiamen may be “clan militia” she said:

“I really do not know who these people would include. Some might be Al Shabaab members with access to arms. Militiamen includes bodyguards.”

“”None at present. If you arrive in Mogadishu and do not know anyone at all, you might start asking for fellow clan members in the hope that they might do more for you than others. But you could not expect anything from them.

I stress this is hypothetical.”

Illustrating, again, that Ms Harper was speaking of what she thought was likely to happen rather than what she knew to have occurred.

“Clanism has made a vigorous return and today is the most powerful driver of political calculations and group behaviour”.

But that assertion, unattributed to any contributing expert, has to be regarded as a generous interpretation of the content that follows in the sense that it is hard to find either raw data or attributed expert opinion of which that can be said to be an accurate summary. Correctly understood, in our view, this is an indication that clan membership is relevant today in Mogadishu not to issues of protection but of social support more associated with the concept of an extended family than a clan as a whole.

“Is there any evidence of armed conflict between clans in Mogadishu?”

To which she replied:

“Not in Mogadishu. You hear exchanges of gunfire and you are told: sub-clan; sub-clan. But documented examples are elusive. In Mogadishu, apart from incidents that are quite minor, I have not seen evidence of inter-clan violence.”

Further support, incidentally, for this view of the decline to the point of elimination of inter-clan violence in Mogadishu today is found in The Safety and Security Baseline Report of 2011, (respondent’s bundle page 1081):

“A majority of respondents said that disputes arising from clan based conflicts “never or almost never occur”.”

Risks to civilians from ill-disciplined security forces

“The security forces are frequently accused of abusing civilians”: (pages 34-38 COIR Aug 2013”)

But it should be noted, which her report did not, that the following sentence is found in the same section of that source material:

“Abuses by undisciplined elements of the Somali National Security Forces against civilians were also reported during the period, although these are said to have decreased in recent times.”

Civilian casualty figures.

“…it is impossible to obtain accurate casualty figures for Mogadishu…”

And, with that caveat in mind, set out the information that is available from the World Health Organisation:

January – December 2010: 5279 casualties from weapons related casualties were treated at the three major hospitals in Mogadishu

January – December 2011: 9689 casualties from weapons related casualties were treated at the three major hospitals in Mogadishu

January – December 2012: 6687 casualties from weapons related casualties were treated in four hospitals in Mogadishu

January – October 2013: 3889 casualties from weapons related casualties were treated in four hospitals in Mogadishu

Recognising that the figures for 2013 are incomplete, she said:

“If extrapolated for the whole year, the casualty figures for 2013 would be 4667, which is less than the previous year but still high. …. It is important to stress that these figures are incomplete and do not give a reliable picture of the situation in Mogadishu”.

The need for caution in approaching the statistical information that is available was reinforced in her oral evidence:

“We can’t know how many people killed or injured are not taken to hospital – there are few ambulances; nature of injury-not worth it; long queues at hospital; the need to pay. I don’t know what proportion of those injured in Mogadishu appear in these statistics.

…

“All figures coming out of Somalia about people injured and killed are unreliable and incomplete.”

IDPs and IDP camps

“A person who is returned or deported to Somalia, especially one with no known family, would in all likelihood end up living in one of the 500 camps for the internally displaced in Mogadishu. Some squat in damaged buildings, but this is becoming more difficult as the Somali government and others start to re-claim property they see as rightfully theirs. A person with limited family without political, social and financial resources would be in a similar position.”

There is some difficulty with the starting point taken for this view. It is not difficult to accept that a person would end up in an IDP camp only if there was no other alternative. But it is not immediately clear why it should be assumed that a person returned or deported to Somalia would necessarily be without resources or access to them. After all, the evidence before us indicates that the journey from Somalia to Europe, typically, would cost between $15,000 and $25,000, which sum the person concerned had been able to raise, or which was raised on his behalf. In support, Ms Harper reproduces this extract from a report by Heritage Institute for Public Studies published in November 2013, this report also being authored by the lawyer [whose identity is not to be disclosed] upon whose work Ms Harper draws repeatedly:

“Economic recovery is slow and barely reaching the most vulnerable communities in Somalia. The cost of living is soaring. Infrastructure is in shambles. Land disputes are common and often violent. The Somali government and private landlords are now forcefully evicting IDPS in Mogadishu, many of whom recently arrived and have nowhere else to go.”

“Bulk of the city? Even by the standards of African cities of countries affected by conflict, Mogadishu, of cities I have visited, is on another level.

…

 In 2012 what struck me is that almost every patch of spare ground had “igloos” where displaced people live. Made of sticks, cloth, plastic, metal. Not tents. Dwellings. Crammed into patches of spare ground, closely together. Inside there is just sand or cardboard or plastic on the ground.

…

Off the main roads the road disappears into sand and it is easy to get lost and many panic when into a dead end. It’s like being in a video game about a city devastated by war. Except for the glamorous parts and Bakara Market that are rebuilt.”

That evidence chimes with other views expressed before us that there is a wide disparity of conditions in which people are living in Mogadishu today, although Ms Harper addressed only the two ends of that spectrum: those living in conditions of expensive privilege and those at or close to levels of destitution. It is plain from the evidence generally that there are, unsurprisingly, levels of living conditions to be encountered that fall between those two extremes. 

“From information I obtained from a journalist in Mogadishu those only left Somalia 1-3 years ago and they had families in Mogadishu and a lot were doing all they could to get back to Saudi.”

This, in our judgement, is a significant answer that illuminates our evaluation of Ms Harper’s evidence. As she confirmed in answer to a question from the President, the journalist could not possibly know that information to be correct or reliable. Yet it discloses an assumption about the characteristics of a large group of people which informs a general conclusion that is most likely to be factually incorrect, even if true in respect of part of the group. This is another example of an assumption driving a conclusion to what was thought likely in any event, such as the earlier evidence that all returnees and deportees would be people with no access to resources. That is particularly striking in view of the evidence we have of the very significant sums of money sent in the form of remittances each year by members of the diaspora to relatives living in Somalia.

Mogadishu today

“It does not mean they are coming back for good – many leave after one or two years. I do not know of any members of the diaspora who came back to live in Mogadishu. They may come for holidays or to have their children circumcised if they are girls.”

Once again, we are satisfied that view is based upon what Ms Harper expects to be the case rather then any real statistically based evidence of what has actually happened. Another example of this is provided by this extract from paragraph 4.4.2 of her report prepared for the appellant SSM:

“A returnee from Europe or the US would be presumed to have money or access to money, and so would therefore be at risk of being robbed, or abducted or subjected to threats of violence for the purpose of extortion.”

However, Ms Harper offers nothing to support that assertion which appears to be based upon what she thinks is likely to happen rather than being demonstrated to have happened in such a regular way as to be a likely experience for this category of persons living in Mogadishu.

“Mohamed Mahamoud Sheik decided to start it when he returned home recently to Mogadishu after years abroad.

He told the BBC the city's security had improved in the last 10 months, since Islamist militants were pushed out by African Union and government forces.

...

The Islamist al-Shabab militia, which is fighting the UN-backed interim government, still controls much of the south of the country, but since it was forced from Mogadishu, the city is coming back to life.

People are going to the beach, opening restaurants, hotels and other businesses.

…

"Because the city is more peaceful now, everybody is running to find a place to open a business. Getting a building is really hard in Mogadishu these days because there is so much competition for space."

Although most al-Shabab fighters have been driven out of Mogadishu, the city is by no means safe. Suicide and other attacks are common.

Government officials have provided Mr Sheik with one guard at night and two during the day”

In her evidence Ms Harper urged a restrained assessment of this example of a successful return to Mogadishu:

“Such reports may give the court the impression that conditions are safe for all Somalis to return. I would caution against this interpretation since the conditions for these returnees and a potential removal or deportee are very different. The situation in Mogadishu… is by no means safe, especially for those without significant resources, both in terms of financial means, and in terms of having wealthy and powerful relatives and other contacts.”

Plainly, this enterprising young man must have had access to resources to invest in a start up business. We are, however, told nothing at all about his “wealthy and powerful relatives and other contacts” or how they facilitated what may otherwise have been impossible. We were referred to nothing to suggest, incidentally, that this person does not remain in Mogadishu or that his business does not continue to trade successfully.

“Upon arrival in Mogadishu … those removals or deportees with no or limited contacts and meagre financial resources would be in an especially weak position. Such a person would be vulnerable to abuse or attack by criminals, clan militias, government troops, African Union soldiers and Al Shabaab.”

“Somalis deported from the United Kingdom face possible violence from Al Shabaab which considers as a spy anyone returning from a Western Country. The group considers returnees from the West to be in a state of apostasy, and therefore subject to punishment. It executes some of those it suspects of spying”.

But, when invited to do so in cross examination, Ms Harper was unable to identify any returnee who had been subjected to such treatment. She accepted that she did not know of a single case of a diaspora returnee to Mogadishu being targeted by Al Shabaab as a suspected spy. Further, she agreed that Al Shabaab regularly makes claims of responsibility for all manner of attacks but was unable to point to any such claim referring to returnees from the diaspora as being a target or reason motivating an attack.

“According to the Norwegian Landinfo and Danish Immigration Service’s report of 2013 “It would be extremely difficult to return to Mogadishu if you have no one to rely on return to Mogadishu if you have no one to rely on when you come back”.”

That, however, does not accurately convey the essence of what is being said in the section of the report from which those words are taken. This was not the view expressed by the authors of the report but a comment made by “a Diaspora organisation” which, as can be seen from the whole extract of this section of the report, is not in line with the message being delivered. It is important to consider the phrase lifted by Ms Harper from the report in its proper context:

“Diaspora returning from abroad

According to UNHCR-Somalia, Mogadishu, many people from the diaspora have returned to Mogadishu also, because they see business opportunities. In general, there is no discrimination for the sole reason of belonging to the returning Diaspora.

Regarding returns from the Diaspora, an international agency, Nairobi, explained that ordinary people returning to Mogadishu and other locations in S/C Somalia are citing improvements in the security situation as some of the reasons for returns. Others have also been shocked by what they see when they come back, especially those who have been abroad for many years.

An international agency, Nairobi, explained that Mogadishu is now a “buzz”, people are going around minding their own business and there is an increasing freedom of movement for everyone.

Elman Peace and Human Rights Centre, Mogadishu, explained that there is an increasing number of Somalis retuning to Mogadishu from abroad as compared to October 2012. However, the 14 April [2013] attack may result in a slight decrease for the time being as many will give it a second thought before going back to Mogadishu.

A representative of a Diaspora organisation in Mogadishu explained that those who are returning to Mogadishu and other locations in S/C Somalia are mostly resourceful people who see opportunities, have business to do and/or seek political influence and positions. It would be extremely difficult to return to Mogadishu if you have no one to rely on when you come back.

The representative stated that an increasing number of Somalis are returning. Safety and security are issues to consider before you return as there are frictions between those who stayed behind and those who are now returning from their refuge abroad. The Diaspora is being perceived as competitors as they may take up jobs from the locals and their increasing presence in Mogadishu has resulted in price increases in goods as well as on properties.

…

The representative of a Diaspora organisation in Mogadishu explained that the first three months in Mogadishu are the hardest for a returned member of the Diaspora. However, most people from the Diaspora are staying despite the difficulties they may face during the first few months. On the other hand, a number of returnees are going back to their country of asylum because they could not find a job in Mogadishu. Males as well as females are returning to Mogadishu.”

It will be noted that the second sentence of the final paragraph of this extract appears to contradict Ms Harper’s view that most returnees leave after a relatively short period.

“I only saw one person who had set up a tailoring business. I did not see other economic activity.”

This helps to illustrate that Ms Harper is limiting her assessment to a significant degree to what she has seen herself. It is also difficult to reconcile that statement with the article she wrote about the young man who started a new dry cleaning business, to which we have referred above. Plainly, the evidence as a whole points at very significant economic activity in Mogadishu and, even if on one view this is large-scale construction rather than personal enterprise, the former can be completed only with the assistance of some form of workforce.

“Civilians returning to Mogadishu after a significant period of absence would be at increased risk of serious harm because they would not know how to navigate their way around the city, which has been in a state of conflict for 23 years. This is partly because the conflict has dramatically altered the physical geography of the city, but also because the nature of clan, politics and risk has changed, and continues to change, often at a rapid rate. An individual who has been absent for a significant period of time would not be familiar with the current workings of clan and politics, and would not know how to assess risk. Such a person would also not know how to behave in such a way as to possibly reduce their risk of harm.”

Again, this appears to be based upon the witness’s expectation of what she thinks will happen rather than on evidence of examples of manifestation of this perceived enhanced risk. In any event, this extract suggests that a person can in fact act in a way that reduces exposure to risk. The question, therefore, to be addressed is how such a person should act to reduce exposure to risk. Ms Harper provides an indication of the answer:

“A person with no recent experience of Mogadishu would not be aware that it is not a good idea to speak about Al Shabaab in public, and that it is best to avoid government buildings, and restaurants, hotels and other places frequented by government workers, security officials, members of the diaspora and foreigners. As one former politician and powerful business man said “I survive in Mogadishu because I don’t go to government buildings, I don’t talk about Al Shabaab and I don’t write about Al Shabaab.” A person who has been away from Mogadishu for a long time would not know that it is considered unsafe to make plans in advance to meet someone at a certain time in a certain place … They would be unaware that one should avoid moving around in a predictable way. There are lots of unspoken rules which are only learned from spending time in the city or being looked after by someone in the know.”

It is not easy to accept that a person who has sought to resist removal by asserting that Mogadishu is a dangerous place where he would be at risk on return because of the activity of Al Shabaab would not appreciate it would be a good idea to avoid speaking about the organisation openly in public and avoid the places where known targets are likely to frequent and not to let everyone know where they were going to be and when. On the contrary, a person who had argued his appeal on such a basis would be very much aware of the up to date situation concerning such issues. Ms Harper was asked in her oral evidence what behaviour should be avoided to avoid risk of harm that would not be obvious and said:

“It would be unwise to speak of AS or the government. Best to avoid being close to AMISOM or soldiers as they are at risk of attack. Avoid being near certain hotels and restaurants. Avoid giving “attitude” or speaking in a rude way to soldiers. If a woman, should dress in a particular way, covered up. If a man should not be so casual in dress. Should not listen to certain types of music. So many subtle forms of behaviour that could invite aggression …”

Once again, we find it impossible to accept that a person returning to Mogadishu today after a period of absence would be sufficiently ill-informed as to not  instinctively appreciate that these are examples of behaviour to be avoided, whether anyone locally “in the know” informed them of that or not.

“Somalis who have returned from the diaspora tell me they are recognised as returnees for many different reasons. They say their dress is different, with men wearing Western-style shirts, shoes and trousers instead of the traditional Somali sarong and flip flops….”

But, as we have already pointed out, this is impossible to reconcile with the photographs taken during Ms Harper’s recent visit to Mogadishu which include a view of a crowded Bakara market in which the general style of dress adopted by men is of what might be described as western style clothing. That does not mean, of course, that such a depiction is typical of another day at Bakara market, but in the absence of any reason to suppose otherwise, we are satisfied that this concern has been overstated and is yet another example of a witness speaking of what they believe ought to be the case rather than what it is in fact.

“If the family unit is there in Mogadishu, if that person was involved with criminal activities in the UK they may reject them. Some families live in igloos or smashed up buildings. The immediate family would I believe receive that person.”

This response appears to be to the effect that a returnee will be able to look to family members for support upon return, if they remain in Mogadishu, but there may be two reasons why that would not represent much help. First, if the family had nothing left and lived in an IDP camp they would have no material support to offer. Second, there is a risk that a family who was able to provide support would refuse to do so if aware of past criminal offending by the returning family member. Ms Harper made clear that she disagreed with the evidence given by Dr Hoehne to the effect that an “ordinary” conviction in the United Kingdom would have little or no significance in Somalia, although offences involving drugs might be different. However, when invited to give any example of a returnee who upon return was shunned by relatives on this account she was unable to do so. Therefore, this is yet another example of an opinion being offered that is simply unsupported by any actual evidence of it occurring, being based instead upon what the witness believes would be the case.

Submissions of the parties

Submissions on behalf of the Respondent

a.      The withdrawal of Al Shabaab was recent and there remained some chance of their re-entry into the capital (paragraph 345);

b.      In the event that Al Shabaab did re-enter Mogadishu, there was the possibility that AMISOM would not adhere to a “no retaliation” policy but would resort to shelling with a consequent risk to civilians (ibid);

c.       It was too early to say to what extent Al Shabaab would resort to asymmetrical warfare (paragraph 346);

d.     The then humanitarian situation in Mogadishu compounded the threat from the “significant” levels of fighting occurring in some districts of the capital (paragraph 347);

e.      An effect of the humanitarian situation was to increase the risk from other factors such as IEDs, criminality and in discriminatory attacks from Al Shabaab personnel (ibid);

f.        There was a material risk from rogue elements of the TFG, albeit it was “far smaller” than the risk from Al Shabaab (paragraph 349).

a.      Freedom of movement;

b.      The available statistical evidence relating to civilian casualties, showing a significant decrease in weapons-related injuries;

c.       The absence of conventional fighting in Mogadishu;

d.     The reduction in general criminality or abuse by government forces;

e.      The improvement in humanitarian conditions in Mogadishu;

f.        The increase in numbers of people returning to Mogadishu from the west or elsewhere in South Central Somalia;

g.      The improvement in conditions in the Afgoye corridor;

h.      The position of IDP’s in Mogadishu.

“But people here are sensing the moment and seizing it. More than 300,000 residents have come back to the city in the past six months, local aid groups say, and many are cheerfully carting away chunks of rubble and resurrecting their bullet riddled homes. The economic boom, fuelled by an infusion of tens of millions of dollars, much of it from Somalis flocking from overseas, is spawning thousands of jobs that are beginning to absorb young militiamen eager to get out of the killing business.

Given Mogadishu’s importance to the country, it all adds up to a huge opportunity. And though Somalia has self-destructed numerous times before, Augustine Mahiga, the head of the United Nations political office for Somalia, along with so many others here insisted that this time really is different. Somalia, they contend, is finally turning around…”

a.      As a journalist, Ms Harper was reluctant to disclose her sources so that the reliability of those sources cannot be assessed;

b.      As it was unclear whether her sources were aware of the use to be made of their information, there was a risk of exaggeration or fabrication;

c.       Her evidence is said to be overly impressionistic and not based upon objective evidence;

d.     Where it had been possible to identify sources there had been error, for example information attributed to Al Shabaab in one respect was in fact obtained from an office cleaner;

e.      There was an absence of rigour disclosed on occasion by her evidence, for example in conflating figures relating to injuries and fatalities.

“Conclusion

27. In light of the overall situation in South Central Somalia (outside Mogadishu), UNHCR considers that, on the whole, an IFA or IRA would not be relevant or reasonable given, in particular, the existence of widespread violence and prevalent human rights violations, the physical risks and legal or physical barriers encountered in reaching other areas, as well as the serious difficulties faced in accessing basic services and ensuring economic survival in a situation of displacement.

28. With regard to Mogadishu, the personal circumstances of an individual need to be carefully assessed. UNHCR considers an IFA/IRA as reasonable only where the individual can expect to benefit from meaningful nuclear and/or extended family support and clan protection mechanisms in the area of prospective relocation. When assessing the reasonableness of an IFA/IRA in Mogadishu in an individual case, it should be kept in mind that the traditional extended family and community structures of Somali society no longer constitute as strong a protection and coping mechanism in Mogadishu as they did in the past. Additionally, whether the members of the traditional networks are able to genuinely offer support to the applicant in practice also needs to be evaluated, especially given the fragile and complex situation in Mogadishu at present.

29. For the following categories of Somalis, UNHCR would consider that an IFA/IRA will not be reasonably available in the absence of meaningful nuclear and/or extended family support and functioning clan protection: unaccompanied children or adolescents at risk of forced recruitment and other grave violations; young males at risk of being considered Al Shabaab sympathizers and therefore facing harassment from government security forces; elderly people; people with physical or mental disabilities; single women and female single heads of households with no male protection and especially originating from minority clans. In any other exceptional cases, in which the application of an IFA/IRA in Mogadishu is considered even in the absence of meaningful family or clan support to the individual, the person would need to have access to infrastructure and livelihood opportunities and to other meaningful protection and support mechanisms, taking into account the state institutions’ limited ability to provide security and meaningful protection.”

“Civilians still bear the brunt of continued fighting in Somalia. While the number of civilian casualties treated in referral hospitals in Mogadishu decreased by 33%, compared with the same period in 2012, as many as 1,500 weapon-related injuries were treated in those hospitals during the reporting period.”

Once again, this illustrates the care with which statistical evidence must be approached. Over this 5 month period there were 1,500 such injuries treated in the hospitals concerned but not all of those were necessarily civilians. It is clear that non-civilian injuries are treated at these hospitals also. 

“… having regard to the available figures and the change in tactics of both sides since AMM (which crucially includes the demise of large scale shelling), the SSHD submits that there is no evidence that ordinary civilians are being deliberately targeted by suicide attacks. None of the three experts cited documentary evidence to the contrary. For example, Dr Mullen’s examples, given in evidence in chief, focussed on attacks on politicians, police officers, international aid workers, etc., i.e. individuals who can legitimately be described as having a profile higher than that of the ordinary civilian. Dr Mullen’s use of “indiscriminate” must therefore be put in context; he appears to be speaking of directed attacks by AS which, in some cases, resulted in collateral injury to ordinary civilians.”

a.      F.O. – returning after 15 years as a taxi driver in England and describing Mogadishu as “a place of leisure” (RB3 page 2881);

b.      F.A. –returning after 13 years in London (ibid);

c.       M.M.S.A. – returning after “many years” abroad to open a dry cleaning business in Mogadishu (RB1 page 261);

d.     A.J.M.- returning after two decades in the United Kingdom to establish a new business, the Village chain of restaurants to which reference has already been made (RB1 page 265);

e.      A.A. – A female Somali citizen returning after living in the United States of America for about 5 years to open a furniture store business in Mogadishu which now employs five people. (RB1page 351);

f.        F.A. who lived in Norway for 8 years before she returned to Mogadishu to open an electronics store (ibid);

g.      M.A. who returned to Mogadishu after 10 years living in Kenya and opened a beauty parlour where she now provides employment to 6 women (ibid);

h.      Y.A. who returned to Mogadishu after living in Kenya for 14 years to renovate and rent out property (RB1 page 433);

i.        L.M. who, after 25 years living in Canada and the United States of America returned to Mogadishu to re-launch a hotel business with relatives. He has also opened a coffee bar (RB1 page 467);

j.        H.B. who returned after living for many years in the United Kingdom, 9 of which she spent working as a taxi driver, and who now, unusually for a Somali woman,  works as a bus driver in Mogadishu (RB3 page 2941);

k.      F.H. who, having left Somalia aged just 2 years old had returned in her mid twenties to take up a job as a ministerial aid (AB5 page 1375).

A few examples such as these is not a real basis upon which to make assertions as to the position for returnees generally, especially as the people identified mostly returned to take up business opportunities. Also, it cannot be assumed that no difficulties had been experienced by these returnees, as is perhaps illustrated by the inclusion of the proprietor of the Village Restaurant chain which, as we have noted, has attracted attacks. The point being made, though, is that this is a selection of people who were able to return and, apparently remain and re-establish themselves after a period of absence.

“Hamar Weyne is the old part of town, but today most of its original fair-skinned inhabitants have left to safer areas, and it is largely inhabited by wealthy IDPs.”

“Diversion of funds by gatekeepers is endemic. For example, the Monitoring Group has obtained evidence showing the existence of “ghost camps” that are operated by gatekeepers and supported by international assistance. One such camp in the Karaan District of Mogadishu was supposedly home to 3200 families and supported since 2011 by UN agencies. In April 2012, UN officials visited the camp and found in addition to the gatekeeper only a few women present with 20 to 30 shelters occupied by watchmen…”

Submissions on behalf of MOJ

“Potential Risk Profiles:

1. Individuals associated with, or (perceived as) supportive of the SFG and the international community, including the AMISOM forces;

2. Individuals (perceived as) contravening Islamic Sharia and decrees imposed by Al-Shabaab, including converts from Islam, other “apostates” and moderate Islamic scholars who have criticized Al-Shabaab extremism;

3. Individuals (perceived as) opposing the SFG and related interests and individuals (suspected of) supporting armed anti-Government groups;

4. Individuals in certain professions such as journalists, members of the judiciary, humanitarian workers and human rights activists, teachers and staff of educational facilities, business people and other people (perceived to be) of means;

5. Individuals (at risk of being) forcibly recruited;

6. Members of minority groups such as members of the Christian religious minority and members of minority clans;

7. Individuals belonging to a clan engaged in a blood feud;

8. Women and girls;

9. Children;

10. Victims and persons at risk of trafficking;

11. Sexual and/or gender non-conforming persons (lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals);

12. Persons with a mental disability or suffering from mental illness.”

It has to be recognised, though, that the evidence before us plainly indicates that there is no clan-based persecution in Mogadishu today at a level to engage issues of international protection. Notably absent from that list is any reference to returnees from the West. However, Mr Gill invites the Tribunal to add such a category of persons at risk in Mogadishu, on the basis that Al Shabaab has made threats:

“[they] have been taught garbage and sins, and have lost [their] religion and are being used to [spread evil];

and because Commander Hussein of Al Shabaab is reported to have said that returnees “will be killed and fought against in the same manner that Al Shabaab fights against the Somali Government.”

“[The Benadir National Security Agency Commander] said 3,000 people were released after police investigations determined they were innocent. “We will continue with the investigations we are conducting in the city until we secure the city” he said.”

…

“The operations also led to the confiscation of landmines, bombs and ammunition for heavy weapons such as bazookas, AK47s and other automatic machineguns…”

One person caught up in this operation was quoted as saying:

“We were about 20 people and they took us to the headquarters of the Criminal Investigation Department (CID)…. They did not harm us. They asked us questions like where we lived and what our occupations were. We were detained for about five hours in the CID jail, and finally they released 16 of us.”

“Benadir Deputy Governor for security Affairs… said security forces have made a concerted effort to protect Mogadishu. “The city of Mogadishu is the heart of the country. If it becomes peaceful, all the regions of the country will be peaceful… Security in Mogadishu has been improving day by day since Al-Shabaab was expelled from the city in August 2011. Security forces are ready to eliminate the remnants.”

“Freedom of movement in Mogadishu has improved considerably since February 2012 according to Kilian Kleinschmidt, OCHA. There are no longer visible checkpoints in the city centre of Mogadishu. However, there are a lot of invisible checkpoints, but even these do not affect the freedom of movement for UN agencies. Today there are only checkpoints in the outlying areas of Mogadishu…

…

Ayaki Ito, UNHCR, confirms that the number of checkpoints in Mogadishu has been reduced considerably [since February 2012]. However, it is common to see a person from the local militia at important street corners for him to check if someone unknown is passing by. These are the so-called invisible check checkpoints.

A representative of an international organisation explains that there are checkpoints in Mogadishu and one cannot exclude the possibility that al-Shabaab disguised as soldiers are manning them…

An international NGO working in S/C Somalia (B) explained that there are still checkpoints in Mogadishu, but these are mainly in place to tax the trucks going into the city…

…

An international NGO working in S/C Somalia (D) stated that today people are moving more freely around Mogadishu than during the previous five to six years. People are now going to the Bakara market…

…

There are far less checkpoints in Mogadishu than in February 2012, and the existing ones tend to be government checkpoints according to Tony Burns. SAACID-Australia…

People are moving freely around in Mogadishu today, and they feel safer today than for the past twenty years according to an international NGO working in S/C Somalia (A).”

In the light of this material we reject Mr Gill’s submission in that regard.

“…The UNHCR estimates that 184,400 IDPs are in settlements in Mogadishu as of July 2012. The majority of the IDPs surveyed (55%) arrived in the city between 6 and 12 months prior to the April survey, which coincides with the peak of the famine crisis that hit southern Somalia between June and October 2011.

…

…the large majority of IDPs originating from the nearby famine stricken regions. However, the proportion of people displaced inside the city seems to have decreased (20% to 12%), which can be attributed to the improved security situation in Mogadishu.”

“This report is based on more than a year’s research, including 70 interviews with newly arrived persons displaced from South Central Somalia by the 2011 2012 famine and fighting in some of the main IDP camps and settlements in Mogadishu. It examines the situation of displaced people in Mogadishu from the height of the famine in July 2011 through November 2012 and it describes the abuses faced by these people who are often silenced by those bent on exploiting their vulnerability.

Throughout this period members of displaced communities in Mogadishu faced serious human rights abuses including rape, beatings, ethnic discrimination, restricted access to food and shelter, restrictions on movement, and reprisals when they dared to protest their mistreatment. The most serious abuses were committed by the various militias and security forces, often affiliated with the government, operating within or near camps and settlements for the displaced. Frequently these militias were linked or controlled by managers, or “gatekeepers” as they are known, of the IDP camp.”

“UNHCR-Somalia, Mogadishu, confirmed that someone in Mogadishu will not be at risk today solely because he/she is of a different clan, although clan dynamics in combination with other factors are an important element when considering risk, including for the IDP population. It is obvious that one is safer when he or she is residing in an area dominated by his or her own clan or if one has good relations with a dominating clan.”

“Regarding access to livelihood in Mogadishu, UNHCR-Somalia explained that the presence of nuclear family is a requirement for livelihood support, as the clan will not help with livelihood.”

Mr Gill draws a sharp distinction between two types of returnees; the business people and investors seeking economic and business opportunities and those returnees with neither family or clan connections nor access to economic resources. The latter group, he submits are at risk of:

a.      being marginalised and forced into joining gangs, becoming alcohol and drug-dependent, unemployment, hopelessness and facing social stigma

b.      being targeted because of their clothes, their foreign manner and their apparent affluence

c.       being suspected of returning in order to join Al Shabaab

d.     being compelled to join Al Shabaab, clan-based militia or the national forces

e.      ending up in an IDP camp

“To address this issue, WHO-Somalia in collaboration with the local health authorities provided medicines to mental health care services and expanded the charge free initiative. This initiative that addresses the rights of the mentally ill by advocating for charge free hospitals, chain free homes and charge free environment is well-established in Mogadishu and Hargeisa and will start in Bossaso in 2011.”

a.      Grenade attacks being carried out on a nightly basis with youngsters being paid to throw hand grenades;

b.      Targeted assassinations being carried out by Al Shabaab;

c.       Increased use by Al Shabaab of victim-activated pressure plate IEDs, with the number of civilian casualties from suicide attacks rising sharply;

d.     An increase in the number of UIED attacks, compared with 2012, creating a risk of “collateral damage” for civilians;

e.      Increasingly complex asymmetrical attacks being carried out by Al Shabaab, designed to cause the maximum number of casualties and general disorder;

f.        Continued presence of Al Shabaab in the Bakara market area;

g.      Al Shabaab infiltration of police, intelligence and military forces;

h.      Ability of Al Shabaab to move around Mogadishu, anonymously;

i.        Al Shabaab’s warning to civilians to stay away from government buildings, public venues frequented by government officials and foreign aid agencies and their workers, as they would all be targeted in attacks;

j.        The latent ability of Al Shabaab to carry out well-equipped multi-fronted offensives against the government once international forces withdraw;

k.      Recommencement of nightly mortar attacks on Mogadishu and engagement by Al Shabaab with the Somali National Army in daylight gunfire exchanges with the SNA ;

l.        An increased targeting of civilians by Al Shabaab, according to ACLED.

“The position is, therefore, that whilst AS has shifted its tactics away from conventional warfare, its use of symmetrical warfare has evolved and become more sophisticated over time. The consequence of this has been an increase in the number and complexity of asymmetrical attacks with a corresponding increase in the number of civilian casualties in proportion to the overall number of casualties…”

That assessment is said to be supported by the statistics provided by ACLED which we have considered above. The assertion that an increase in the number of attacks following withdrawal of Al Shabaab from Mogadishu corresponds directly with an increase in civilian casualties is, of course, at the very heart of the dispute between the parties that it falls to us to resolve.

“…In areas which were soon-to-be seized from the group by Federal Government forces, attacks on civilians accused of spying appear to have increased…. Similarly, in many areas which were recently seized from the group remained vulnerable to indiscriminate attacks on civilian populations such as bombings in marketplaces”

Further, this is to be read in the context of what was said earlier in the same report, prefacing what was to follow:

“… the intensity of conflict appears to have reduced somewhat, with reported fatalities dropping slightly over the course of the year. While event levels reached a historic peak in 2013, reported fatalities have remained relatively low and stable over the course of the year…”

“where a previous assessment has resulted in a conclusion that the population generally or certain sections of it may be at risk, any assessment that the material circumstances have changed would need to demonstrate that such changes are well-established evidentially and durable.”

“Somalia‘s long-running armed conflict continues to leave civilians dead, wounded, and displaced in large numbers. Although the Islamist armed group al-Shabaab lost ground in 2012, abandoning control of key towns such as Beletweyne, Baidoa, and the strategic port city of Kismayo, it continues to carry out attacks and targeted killings, including in the capital, Mogadishu.…Civilians continue to be killed and wounded by crossfire, particularly during infighting between TFG forces over control of roadblocks, and by improvised explosive devices and grenade attacks primarily by al-Shabaab fighters. Al-Shabaab carried out several high-profile suicide attacks in Mogadishu including one on September 20 that killed at least 18 people, including three journalists.‘

The UN Security Council‘s Report of the Secretary General, published on 31 May 2013 and covering events of 16 January 2013 to 15 May 2013, (UNSC Report May 2013) stated that the security situation remained fragile during the reporting period. Despite some improvements in Mogadishu, Al-Shabaab continued to launch asymmetrical attacks on soft targets using terrorist tactics that often resulted in civilian casualties. Targeted killings and attacks were routinely reported. The number of incidents involving improvised explosive devices rose in 2013 in comparison with 2012.”

In fact, in the interests of accuracy, it should be noted that this is an extract from a HRW report published on 31 January 2013, and the report is not dealing only with the situation in Mogadishu, although of course reference is made to the city.

“Al Shabaab terrorists attacks remained constant”

but should have completed the sentence to put it into its intended context:

“In the Mogadishu area, Al-Shabaab terrorist attacks remained constant, though many were prevented or failed as pressure mounted from reinforced Government and AMISOM forces.”

Similarly, she reproduces part of another extract:

“While Somali forces and AMISOM continue to make territorial gains, asymmetrical insurgent attacks pose a substantial threat ….I remain deeply concerned about grave violations of international humanitarian and human rights law.”

But that sentence, which relates not just to Mogadishu but to Somalia generally, should be read to its conclusion to understand its focus:

“I remain deeply concerned about grave violations of international humanitarian and human rights law, especially against women and children. I urge all parties to ensure that the protection of civilians is integrated into all military operations.

… I am encouraged by the Transitional Federal Government’s continued commitment to prevent the recruitment and use of children by its armed forces…”

“… On 24 January, for example, a device hit a convoy carrying two United Nations personnel, who were unharmed.”

It seems curious that the author of this report should select a single example of such an attack in which no one was injured if, typically, such attacks generally claimed victims in terms of injuries or fatalities. It might be observed also that this was apparently a targeted attack against non-civilians.

“The political, security and development gains made so far in Somalia are still reversible…”

and:

“The mission concluded that the political progress made over the past year and the military gains against Al Shabaab that have been achieved in recent years are at serious risk of being reversed. The findings of the joint mission indicate that AS has deliberately shifted tactics since May 2013 from convention to asymmetrical warfare, in recovered areas, including the Somali capital. They target particularly the Government, State institutions and the international presence working in Somalia, including the UN…. In addition to causing the death of many innocent civilians, including women and children, the deterioration in the security situation threatens to undermine the fragile Somali political  process…”

“The security situation in Mogadishu remained relatively unstable during the reporting period…”

But, again, we feel it is necessary to complete the citation in order to convey the meaning apparently intended by the author of the report. He continued, in the next sentence:

“The African Union Mission in Somalia (AMISOM) and the Somali national security forces continued to thwart Al-Shabaab attacks almost daily in and around Mogadishu.”

“An increase in criminal activities was observed during the reporting period, including the establishment of illegal check points, robberies and extortion of drivers and owners of public transportation vehicles. In addition, abuses against civilians by undisciplined elements of the Somali national security forces were reported, mainly on the outskirts of Mogadishu and Kismayo.”

It might be observed, though, that the evidence indicates that checkpoints are not a continuing phenomena generally now encountered within Mogadishu and this is not a comment limited to difficulties within the capital city.

“According to an international NGO working in S/C Somalia (D) there are areas of Mogadishu which are more or less controlled by al-Shabaab, but only during night-time. Al-Shabaab is not visible at daytime.. This is especially the case in Deynile district…”

And to put that into its proper context, we need to add the concluding sentence of that paragraph, which seems to us to be a powerful indicator of the general position as the writer of the report is attempting to describe it:

“However, people in general find that other areas of Mogadishu are safer than ever since the civil war began in 1991.”

“Al-Shabaab continues to cause significant harm to civilians through its indiscriminate use of weapons. According to available data for 2012, Al-Shabaab increased the use of victim-activated pressure-plate improvised explosive devices, while the reported number of civilian casualties resulting from suicide attacks in Somalia also rose sharply. In addition, Al-Shabaab persistently practices targeted assassinations of civilians accused of spying or as a punishment for their apparent allegiances, and systematic intimidation of local communities through restrictions on movement, imposition of taxation and strict application of sharia law.”

Since this is a reference to attacks in Somalia, rather than in Mogadishu, and since the evidence discussed above does not suggest that there are public executions for spying or punishments carried out in Mogadishu by Al-Shabaab or the imposition of taxation or control of communities in Mogadishu by the application of sharia law by Al-Shabaab, it seems likely that this is not intended to be a commentary, specifically, of the situation within Mogadishu.

“… According to UN Mine Action Service (UNMAS) data, 28 IEDs detonated in Mogadishu during the course of 2011, resulting in 116 deaths out of 378 casualties. Between 1 January and 24 September 2012 the number of IEDs detonated in Mogadishu increased to 32, resulting in 62 deaths out of 235 casualties.”

“The traditional extended family and community structures of Somali society no longer constitute as strong a protection and coping mechanisms they did in the past, particularly in locations such as Mogadishu… In Mogadishu in particular the nuclear family has reportedly become the main protection mechanism.”

“Al-Shabaab believes returnees from the West to be in a state of apostasy, and therefore subject to punishment,”

“When asked if there are reports of returnees from abroad being harassed or kidnapped for ransom on arrival in Mogadishu a local NGO(C) in Mogadishu stated that people see those returning [from] abroad as a peace sign and no one abducts them,

…

An international NGO (B) stated that in general terms there is no negative attitude towards returnees in Mogadishu… Kidnappings used to happen in the past but these days it’s threats in order to get money. These threats would not be made in areas controlled by the TFG but local militias might demand so called protection money from a returnee. Especially returning persons perceived to be wealthy would be at risk of receiving threats and they would often need to buy protection from armed groups.”

Submissions on behalf of SSM

a.      some conventional fighting may have continued;

b.      the continued use of asymmetrical fighting methods;

c.       the humanitarian crisis that might have forced returnees to live in areas where conventional fighting continued;

d.     because of the humanitarian crises there was enhanced risk from IEDs, opportunist criminals and Al Shabaab elements;

e.      a risk from rogue elements of the TFG.

Therefore Mr Toal argues that it would not be sufficient for the respondent to demonstrate that nothing has changed since AMM. Indeed, the Tribunal reached the conclusions that it did notwithstanding that it had in mind then the following matters:

a.      an improving economy with more commercial activity;

b.      the ability of humanitarian organisations to operate;

c.       a busy airport, with 1,000 people arriving each month for various purposes including work and holidays;

d.     widespread reconstruction projects;

e.      evidence of voluntary returns from the diaspora.

“Regarding the security situation on Mogadishu Kilian Kleinschmidt, OCHA, Mogadishu, stated that a dramatic improvement has taken place since February 2012. Today there are less gunfire and no artillery. These are simple indicators which demonstrate a process from war to tremendous improvements in security. However, there are still many security challenges as there are incidents, including grenade attacks every night…”

It will be observed from this that Kilian Kleinschmidt’s assessment of a dramatic improvement in the security situation was expressed in the context of there being that number of grenade attacks. It will be recalled also that there is evidence before the Tribunal that there was a relatively high rate of grenade attacks being ineffective.

“terrorist attacks remained constant … asymmetrical insurgent attacks pose a substantial threat”.

Although, to understand what the author sought to communicate, we feel it is necessary to set out the whole of the first sentence from which the phrase is taken:

“In the Mogadishu area, Al-Shabaab terrorist attacks remained constant, though many were prevented or failed as pressure mounted from reinforced Government and AMISOM forces.”

 “Despite some improvements in Mogadishu…”

has been omitted by Mr Toal. That might be thought a significant omission because those words were plainly inserted to qualify that which followed.

“the target of the attack was apostate security forces and officials”

From which it appears that the venue was chosen on the basis of who was likely to be encountered, at this hotel which, as was the case with the Jazeera Hotel, is described in the news reports as being one of Mogadishu’s most expensive hotels. A BBC News report dated 8 November 2013 confirms that the hotel “is popular with members of parliament and other officials”.

“We attacked this particular place because it is a base for government”

Although that was denied by the owner who sought only to operate a restaurant business,  a BBC News report dated 7 September 2013 said:

“The group said it had attacked the Village restaurant because it is frequented by Somali MPs.”

and that:

“The Village, about 1 km from the Presidential Palace… is popular with journalists and those in political circles.”

this being confirmed by another BBC News report, also dated 7 September 2013:

“the restaurant was popular with government workers and journalists and has been targeted before.”

A news report also dated 7 September 2013 from Reuters, added that in admitting responsibility Al Shabaab had said:

“We are behind today’s blasts”, al Shabaab’s spokesman for military operations, Sheikh Abdiasis Abu Musab, told Reuters. “Government officials, military forces, workers and their security always meet there. We had targeted it even before today and we shall continue targeting it.”

“It is true also that Al Shabaab and other agents of serious harm target high profile individuals and they target venues that are not usually frequented by civilians…”

But he argues that the evidence does demonstrate that a significant number of civilian casualties result from such attacks. Thus, an attack on a UN compound in June 2013 resulted in 22 deaths, of whom 4 were foreign security workers, 4 were local guards and 7 were militants. The inference invited is that the remaining 7 must have been “ordinary civilians” However, the BBC news report of this incident records that Al Shabab claimed to have killed “16 UN workers” which, if that were in fact true, would together with the number of attackers killed account for the whole total of fatalities. In any event, there is a disparity in the numbers of casualties reported. A Telegraph report said that “at least 15” people were killed of whom not 7 but 9 were attackers. It is clear, however, from the documentary evidence about this incident considered as a whole that there were civilian casualties.

“Though violence remains a daily reality, Saferworld’s Mogadishu-wide survey in July 2012 found that an overwhelming 93 per cent of respondents reported an improvement in the security situation in the past 12 months, with 4.5 per cent saying it had remained the same and only one per cent reporting a deterioration.  Fifteen per cent said that security had improved in the past three months, 33 per cent noted improvement in the last six months and 22 per cent said the last nine months were improved.”

The same report recorded also, at chapter 4, that:

“An increase in African Union Mission in Somalia (AMISOM) troop levels to more than 17,000 as of July 2012, along with better coordination between AMISOM and TGF officials, has contributed to the decline of the militant movement al-Shabaab in the Somali capital.”

And that, in response to criticism by the Council of Islamic Scholars, who branded Al Shabaab “the enemy of the Somali people”:

“Al Shabaab responded by moving much of its manpower and equipment to Puntland in north-east Somalia…”

a development that had been noted by the United Nations Somalia and Eritrea Monitoring Group also.

“The Court is aware that the human rights and security situation in Mogadishu is serious and fragile and in many ways unpredictable. However, in the light of the above, in particular the fact that al-Shabaab is no longer in power in the city, there is no front line fighting or shelling any longer and the number of civilian casualties has gone down, it finds that the available country information does not indicate that the situation is, at present, of such a nature as to place everyone who is present in the city at a real risk of treatment contrary to Article 3 of the Convention.”

but says that he agrees with the view of the minority in KAB v Sweden and urges the Tribunal to find that “the population of Mogadishu” faces not just an Article 15(c) risk but also a risk of treatment that would be contrary to Article 3 of the ECHR.

a.      has a well founded fear of persecution by Al Shabaab as a returnee from the West, that being a reason recognised by the Convention so as to require that he be recognised to be a refugee;

b.      there is an established Article 15(c) risk of serious harm generally and, because of his particular vulnerability, specifically in his case;

c.       is likely to suffer inhuman and degrading treatment in having to live in circumstances analogous to an IDP such as to infringe Article 3 of the ECHR;

d.     faces a real risk that he would be “trafficked” by Al Shabaab within the meaning of the Convention.

Conclusions:

Significance of clan membership in Mogadishu today

“…It does not matter whether you belong to a strong or a weak clan, or an ethnic minority group… The clan has now become a social structure rather than a protective structure.”

“Clan protection is no longer important as there are no clan based militias in Mogadishu. Persons returning from abroad are not at particular risk because of their clan affiliation”;

“…it is a huge step forward that clan affiliation is no longer a concern. Even marginalized groups such as the IDPs and minority groups are no longer marginalized, harassed or intimidated only because of their clan affiliations. Thus, the security situation for members of small, weak clans and ethnic minority groups has increased considerably during the last year. It is not important which clan or group you belong to.”;

“The representatives of an international agency, Mogadishu, agreed that the clan is no longer a main issue in Mogadishu… According to Mohamed Farah Siad, Mogadishu, clan is ‘zero’ today in Mogadishu; clans do not offer any protection as there are no clan militias threatening people. Clanism is only common among “primitive clans in the bush.”

“On the other hand, whenever a person is planning to settle in Mogadishu he or she will most likely consider his or her clan affiliation before deciding where to settle down.”

And one local commentator has observed that:

“… clans are only relevant when it comes to business, marriage, respect and work, and stated that “clans should not be involved in politics”.

Which chimes with what is said in the Danish 3 report:

“The clan has now become a social structure rather than a protective structure. This could be due to lessons learned during the previous clan conflicts and the civil war. People are now relating to government structures rather than clans, especially when it comes to business.”

And a little later in the same report:

“Regarding access to livelihood in Mogadishu, UNHCR-Somalia explained that the presence of a nuclear family is a requirement for livelihood support, as clan will not help with livelihood.”

“UNHCR-Somalia, Mogadishu, confirmed that someone in Mogadishu will not be at risk today solely because he/she is of a different clan, although clan dynamics in combination with other factors are an important element when considering risk, including for the IDP population. It is obvious that one is safer when he or she is residing in an area dominated by his or her own clan or if one has good relations with a dominating clan.”

Where a person sees a need to make arrangements for personal security for a particular purpose he will probably look to his own clan first of all, those being persons from whom he might anticipate assistance being available more readily, especially if he does not have significant financial resources with which to pay for “commercial” security.  Also, some trades are dominated by one particular clan so that access may be made easier with clan sponsorship but there is no evidence that an individual would be barred because of an absence of it.

“UNHCR-Somalia, Mogadishu, confirmed that someone in Mogadishu will not be at risk today solely because he/she is of a different clan, although clan dynamics in combination with other factors are an important element when considering risk, including for the IDP population. It is obvious that one is safer when he or she is residing in an area dominated by his or her own clan or if one has good relations with a dominating clan.”

“None at present. If you arrive in Mogadishu and do not know anyone at all, you might start asking for fellow clan members in the hope that they might do more for you than others. But you could not expect anything from them.

“Persons belonging to minority clans… remain at particular disadvantage in Mogadishu… There remains a low sense of Somali social and ethical obligation to assist individuals from weak lineages and social groups. This stands in stark contrast to the powerful and non-negotiable obligation Somalis have to assist members of their own lineage.”

The “Economic Boom”

“But people here are sensing the moment and seizing it. More than 300,000 residents have come back to the city in the last six months….. The economic boom, fuelled by an infusion of tens of millions of dollars, much of it from Somalis flocking home from overseas, is spawning thousands of jobs that are beginning to absorb young militiamen eager to get out of the killing business…”

An international agency referred to in Dr Mullen’s report is recorded as saying:

“Mogadishu is now a ‘buzz’, people are going around minding their own business and there is an increasing freedom of movement for everyone.”

“A tiny proportion. 89% are poor. The remaining 20% will be a bit better than being poor. A little better than “barely surviving”. Possibly 1% or 2% of the population benefit from the last two years economic development.”

As we have observed, the arithmetic disclosed by that answer is problematic but we have more difficulty with the view expressed.

“A very tiny fraction of the elite. The vast majority of people are struggling to survive…”

 “could probably get a job as a waiter…”

although he said that there would probably be much competition.

Population movements

Sufficiency of protection

“…it will not be any time soon that one will see a functioning, fair and efficient justice system in Mogadishu…”

and noted that the Benadir Court as well as the Benadir Supreme Court are functioning but marred by corruption. It is also expensive to take cases to court. Therefore citizens are likely to seek “traditional remedies” to resolve disputes, which can be referred to clan elders representing the parties who will negotiate a resolution, but this appears to relate to civil disputes rather than complaints of criminality.

“The African Union Mission in Somalia (AMISOM) and the Somali national security forces continued to thwart Al-Shabaab attacks almost daily in and around Mogadishu.”

And that the police are doing what they can to remove the Al Shabab threat from the streets of Mogadishu is illustrated by the account of Ms Harper’s visit to Bakara Market when a child was discovered by police to be in possession of explosives and by the evidence referred to by each of the expert witnesses of police roundups designed to identify Al Shabaab sympathisers and those in possession of explosives on the streets of Mogadishu. Those are both legitimate and proportionate responses to such a threat, most of those detained in the roundups being released within a few hours, having experienced no ill-treatment while detained and questioned.

Al Shabaab

“… a much more sinister form of targeting geared towards peacemakers…”

“were those standing for a less extreme course; at least they were not so much in favour of international or “global jihad” but were rather concerned about Somali (national) issues.”

“The international NGO (B), Mogadishu, stated that al-Shabaab does not kill civilians indiscriminately. On the other hand, when it is staging large scale attacks it does not mind if civilians are killed.”

“UNDSS, Mogadishu, explained that there are no recent reports of al-Shabaab having attacked or killed civilians deliberately through armed attacks….

…

Regarding IED attacks UNDSS, Mogadishu, explained that remote controlled IED attacks or roadside bombs tend to target AMISOM, SNAF and convoys and such attacks sometimes result in the killing of civilians, i.e. collateral damage.”

And in an Aljazeera news report dated 11 September 2013 a spokesman for Al Shabaab, speaking after an attack on the Parliament building in Mogadishu, is reported as saying that their attacks in Mogadishu:

“… have nothing to do with… stopping Somalis coming back to their country.”

They target particularly the Government, State institutions and the international presence working in Somalia, including the United Nations.”

The omission of any reference to ordinary civilians or returnees from the diaspora from this list of primary targets is to be noted. Similarly, we consider significant that neither civilians nor diaspora returnees are included in the list of those at risk set out in the 2014 UNHCR report which we discussed when summarising submissions advanced by Mr Gill. There is reference to those opposing Islamic Sharia and “apostates” and there is evidence before the Tribunal from some sources that Al Shabaab is likely to regard those returning from the west as “poisoned” by exposure to an anti Islamic way of life so as to be regarded as spies or apostates. However, if that approach were thought to be taken towards returnees generally we would expect a more specific reference to have been made. For those reasons we consider the omission of such a specific reference to diaspora returnees to be significant.  Further, as the evidence simply does not establish that returnees to Mogadishu experience such targeted difficulties at the hands of Al Shabaab, we are satisfied that there is no real risk arising on that account.

“After two decades of anarchy and misery, Mogadishu is enjoying something of a renaissance. The spectacular ruins are being patched up. Hotels are being built. There are even streetlights in some places. And everywhere you hear accents: Texan, Geordie, Minnesotan, south London, Scandinavian. Somalia’s far-flung Diaspora is coming back – in big numbers – to visit, to help out, to make money, and to find out if this renaissance has any chance of lasting. The jury is still out on that one.”

The level of weapons-related civilian casualties.

“There are on average several targeted killings per week in Mogadishu, four to five weekly hand grenade attacks in Mogadishu and usually more.”

In the Danish 2 report, despite noting that:

“… there is a decrease in the number of civilian casualties in Mogadishu, relative to the last few years. This decrease is due to front-line fighting having moved out of Mogadishu. There are now fewer mass-casualty attacks and killings, in particular due to the cessation of shelling in Mogadishu…”

the report continued:

“Still civilian casualties remain a daily occurrence, principally due to assassinations, improvised explosive devices (IEDs) and suicide attacks, and reactions to these attacks by the armed forces. Recent grenade and suicide bomb attacks on theatres and cafes, such as the August 2012 attack on the Jezira Hotel, cause numerous civilian casualties.”

Despite that acknowledgement, the report went on to say this:

“According to an international NGO working in S/C Somalia the number of civilian casualties in Mogadishu has decreased considerably compared to February 2012 and today civilian casualties are at a minimum. In July 2011 two thirds of Mogadishu was under al-Shabaab control. Bombardment and shelling killed many, but this is no longer taking place. Today you have targeted attacks and sometimes by-passers get killed. It’s a question of being at the wrong place at the wrong time.”