|
|
The Committee
against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 1 May 2002,
Having concluded its consideration of complaint No. 177/2001, submitted to
the Committee against Torture under article 22 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Having taken into account all information made available to it by the
complainant, his counsel and the State party,
Adopts its Decision under article 22, paragraph 7, of the Convention.
Decision
1.1 The complainant is Mr. H.M.H.I. (name withheld by decision of the
Committee), a Somali national born in Somalia on 1 July 1960. The
complainant alleges that his proposed expulsion to Somalia would violate
article 3 of the Convention. The complainant is represented by counsel.
1.2 In accordance with article 22, paragraph 3, of the Convention, the
Committee transmitted the complaint to the State party on 25 January 2001.
At the same time, the State party was requested, pursuant to rule 108 of the
Committee's rules of procedure, not to expel the complainant to Somalia
while his complaint was under consideration by the Committee. On 20
September 2001, the State party informed the Committee that the complainant
would not be removed until the Committee had considered the complaint.
The Facts as Submitted by the Complainant
2.1 The complainant is a member of the Dabarre sub-clan of the Rahanwein
clan. His uncle was a Minister for Higher Education of the former Said Barre
regime. Upon the outbreak of clan violence in 1991, the complainant and his
family resided in Baidoa, largely populated by Rahanwein, but controlled by
Said Barre's brother-in-law, a member of the Marehan sub-clan of the Darod
clan. According to the complainant, a competing sub-clan destroyed the city,
killing many, only for Rahanwein forces to return, followed by pillaging
Marehan forces.
2.2 Following the destruction of the complainant's house, Marehan forces
detained the complainant and his wife. Upon learning they were Rahanwein,
they were taken prisoner and forced to work on local farms. The complainant
alleges that his wife was raped, but they escaped in April 1992. After the
death of his brother at the hands of the forces of a militia warlord,
Hussain Aideed, of the Hawiye clan, the complainant and his wife reached an
area where some of his Dabarre sub-clan lived and where he left his family.
He departed the area as Aideed forces had killed many of his relatives. In
November 1992, close to the national border, the complainant heard that his
Dabarre sub-clan had been attacked by another sub-clan of the Rahanwein. In
December 1994, he heard that his uncle, the former Minister, had died at the
hands of Aideed forces.
2.3 On 25 December 1997, the complainant reached Sydney, Australia, via
Thailand, without valid documentation. From that point he has remained in
immigration detention. On 2 January 1998, the complainant applied for a
"protection visa" (refugee status) and was granted legal representation. He
claimed to fear treatment amounting to persecution in Somalia (torture or
execution) on the basis of either his race or, alternatively, on the basis
of his nationality, political opinion or membership of a particular social
group due to his clan membership and familial ties to a political figure of
the former Barre Government. On 15 January 1998, the complainant's
application was refused.
2.4 On 8 July 1998, following a hearing with the complainant on 9 April
1998, the Refugee Review Tribunal (RRT) refused his application for review
of the first instance decision. The RRT found the complainant to be credible
and accepted his account of his clan's and sub-clan's experiences. However,
it found that the human rights violations he feared were not "persecution"
within the meaning of the 1951 Convention relating to the Status of Refugees
since he was, instead, a victim of civil war.
2.5 On 15 October 1998, the Federal Court of Australia dismissed the
complainant's application for review of the RRT's decision. On 9 April 1999,
the Full Federal Court upheld the complainant's appeal against the Federal
Court decision. On 26 October 2000 a majority of the High Court upheld an
appeal by the Minister of Immigration and Multicultural Affairs against the
decision of the Full Federal Court, and affirmed the RRT's decision.
2.6 On 30 November 2000 and 2 February 2001, the Department of Immigration
and Multicultural Affairs rejected applications for a discretionary
ministerial waiver under the Migration Act of the RRT decision.
The Complaint
3.1 The complainant contends that there are substantial grounds for
believing that he will be subjected to torture if returned to Somalia,
placing the State party in breach of its obligations under article 3 of the
Convention. He states that there is no safe place for him in Somalia, as
Mogadishu airport and Baidoa are controlled by Aideed's Hawiye clan. Other
Rahanwein sub-clans are in conflict with his sub-clan. Furthermore, he
claims to be personally at risk by reason of being a relative of a former
Minister in Said Barre's regime. He fears that upon return to Mogadishu, the
Hawiye clan would ascertain his clan membership immediately and attempt to
extort money from him. He fears that they will torture him or summarily
execute him if he is unable to meet their demand for money. If he avoids
detention or execution at the airport, he contends it is simply a matter of
time before hostile clans would detain and torture him as he has lost all
contact with relatives and friends.
3.2 As to the broader situation, the complainant cites a letter from Amnesty
International (Australia) of October 1998, a UNHCR report of September 1999,
a report of the Special Rapporteur of the Commission on Human Rights of
January 2000, a United States Department of State report of February 2000
and a US Committee for Refugees report of August 2000 for the general
proposition that persistent and current patterns of gross human rights
abuses continue in many areas of the country. As to a personal risk of
torture, the complainant argues that his and his family's experiences,
including their forced labour, the rape of his wife and the death of his
brother-in-law, are evidence that his fears are justified and that he would
be tortured if returned to Somalia.
Observations of the State Party
4.1 By note verbale of 20 September 2001, the State party contested both the
admissibility and the merits of the communication.
4.2 As to admissibility, the State party contends that the communication is
inadmissible, either as the facts of the claim fall outside the scope of the
Convention ratione materiae and/or the claims are insufficiently
substantiated, contrary to rule 107 (b) of the Committee's rules of
procedure. The State party observes that the issues raised have already been
extensively examined at all judicial levels and by the Minister. It argues
that the complainant's claim for international protection has been
exhaustively examined, and that the complainant is attempting to utilize the
Committee to review a claim for asylum.
4.3 The State party submits that the communication is inadmissible ratione
materiae on the basis that the Convention is not applicable to the facts
alleged in the communication in a variety of respects. Firstly, the acts the
complainant alleges that he will face if he is returned to Somalia do not
fall within the definition of torture set out in article 1 of the
Convention, which refers to acts involving "a public official or any other
person acting in an official capacity". The State party also refers to the
travaux préparatoires of the Convention for the proposition that torture for
the purposes of the Convention requires the responsibility for acts of
torture attributable to the State.
4.4 The State party refers to the Committee's jurisprudence for support. In
G.R.B. v. Sweden, [FN1] the Committee considered that acts inflicted by a
non-governmental entity, without the consent or acquiescence of the State
party, fell outside the scope of article 3. In Elmi v. Australia, [FN2] the
Committee qualified this principle in the exceptional case of a State
without a central Government for some time, where the international
community had negotiated with warring factions and some factions operated
quasi-governmental institutions, considering that acts of groups de facto
exercising prerogatives of government could fall within the Convention.
---------------------------------------------------------------------------------------------------------------------
[FN1] Communication No. 83/1997.
[FN2] Communication No. 120/1998.
---------------------------------------------------------------------------------------------------------------------
4.5 The State party emphasizes that there are important factual and legal
differences that distinguish the current case from the situation in Elmi.
The State party notes that central Government was re-established in Somalia
in August 2000 and 245 members of a Transitional National Assembly (TNA)
were elected along strict clan lines with minority as well as dominant clans
represented. In October 2000, the new Prime Minister appointed a Cabinet of
22 ministers from all major clans. Rahanwein clan members hold several
important positions, and a Dabarre sub-clan member is also a minister.
Moreover, the current President and Prime Minister were former ministers in
the Barre regime. The Transitional National Government (TNG) is recognized
by the international community as the effective Government of Somalia and,
therefore, as a matter of international law, the TNG is the relevant State
authority for the purposes of the Convention. Accordingly, groups acting
outside the TNG, which was established in Mogadishu and is seeking to
establish effective control over the whole of Somalia and restore complete
stability, law and order, cannot be regarded as "public officials or other
persons acting in an official capacity" for the purposes of article 1. Nor
is there any suggestion that the TNG consents or acquiesces to the acts of
these groups.
4.6 The State party emphasizes the distinction between private and public
acts under international law, and the circumstances under which private acts
may be imputed to the State. Citing learned commentary [FN3] and decisions
of the International Court of Justice [FN4] and the Iran-United States
Claims Tribunal, [FN5] as well as decisions of high national courts, [FN6]
the State party points to the close degree of connection with a State,
including the knowledge and acquiescence of the State or pursuit of State
policy, before the acts of private groups may be attributed to the State.
---------------------------------------------------------------------------------------------------------------------
[FN3] Jennings, R.; Watts, A. (eds.): Oppenheim's International Law (9th
edition), 1992, at 550.
[FN4] Case Concerning United States Diplomatic and Consular Staff in Tehran,
ICJ Rep. (1980), at 3 ("Tehran Hostages").
[FN5] Short v. Islamic Republic of Iran 82 (1988) AJIL 140 and Yeager v.
Islamic Republic of Iran 82 (1988) AJIL 353.
[FN6] R. v. Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet
[2001] 1 AC 61 (United Kingdom) ; Marcos I 806 F.2d 358, Alfred Dunhill of
London Inc. v. Republic of Cuba 425 US 682, Sharon v. Time Inc. 599 F.Supp.
538, and Jimenez v. Aristeguista 311 F.2d 547, United States v. Noriega 746
F.Supp 1506 (United States of America).
---------------------------------------------------------------------------------------------------------------------
4.7 Turning to the facts of the case, the State party refers to a variety of
documentary evidence [FN7] that the incidents alleged by the complainant
were the result of factional fighting and civil unrest, rather than on
account of his family membership or on the basis of an individual profile.
In particular, there is no evidence that the destruction of the
complainant's house was the act of persons carrying out Marehan leaders'
orders to harm former members of the Barre regime, especially since Barre's
brother-in-law controlled this sub-clan. Similarly, regarding the
complainant's capture by Marehan and forced labour, the evidence is that the
circumstances of capture would have been the same even if he had had another
tribal affiliation, depending on the circumstances at the time. As to the
death of the complainant's brother, and later his brother-in-law, at the
hands of Aideed forces, there is no evidence that the complainant was
pursued by anyone on account of his family link to the former Barre regime.
In any event, such retributions have diminished and are economically rather
than politically motivated. Accordingly, the State party submits that
something further is required to engage article 3 and the allegation of
torture as a consequence of return.
---------------------------------------------------------------------------------------------------------------------
[FN7] United States Department of State Country Report on Human Rights
Practices 1992; Refugee Survey Quarterly, vol. 15, No. 1, p. 48-4; Victims
and Vulnerable Groups in Somalia, Research Directorate Documentation,
Information and Research Branch, Immigration and Refugee Board, Ottawa;
report of the Special Rapporteur on the situation of human rights in Somalia
(E/CN.4/2000/110 and Corr.1).
---------------------------------------------------------------------------------------------------------------------
4.8 Secondly, the communication should be deemed inadmissible ratione
materiae as the complainant has failed to substantiate that there are
substantial grounds for fearing torture in the case of his return. The
allegations are, in any event, of extortion not of torture. Moreover, the
complainant's fears are concentrated on a small section of Mogadishu and not
all of Somalia, and, in accordance with standard removal practice, the
complainant has the option of choosing his destination in Somalia when
returned. It is not the State party's intention to return the complainant to
Mogadishu.
4.9 As to the merits, the State party submits that there are no substantial
grounds for believing that the complainant would face a real, foreseeable
and personal risk of torture by the new Government of Somalia on the basis
of his family membership. The State party notes that the general situation
is improving and that the assessment of the complainant's claims must be
made in the light of current conditions. The State party points again to the
new governmental arrangements in Somalia and the connections with the Barre
regime of many members of the Government. In the light of the newly
established Government and the relative stability now emerging in the
country, there is no reason to believe that the complainant would face a
risk of torture from the Government if returned, either on the basis of his
family link to Barre or his clan membership, or any other reason.
4.10 Nor is there a real, foreseeable and personal risk of torture by Aideed
forces or other sub-clans. The State party notes that since the
establishment of the new Government, prolonged fighting in the capital
appears over and it would dispute any claim that current armed factions
there exercise any quasi-governmental authority. Since 1999, the Bay area
has experienced relative peace and, according to the independent expert of
the Commission on Human Rights on the situation of human rights in Somalia,
[FN8] life in Baidoa was resuming normality. There is no evidence, whatever
the past situation, of current threats from the Marehan clan or Aideed's
forces. Indeed, Aideed is the Chairperson of the Somali Reconciliation and
Restoration Council, established in March 2001, of which Rahanwein and other
clans are part. Clan strengths and loyalties are much changed from the
situation existing at the time of the complainant's flight. The State party
argues that, while there remain dangers in Mogadishu and southern Somalia of
falling victim to factional violence, with the establishment of central
Government these risks are faced by the population at large and do not
support any allegation of a personal risk of torture.
---------------------------------------------------------------------------------------------------------------------
[FN8] Ibid.
---------------------------------------------------------------------------------------------------------------------
4.11 Even if the complainant were returned to Mogadishu, which the State
party does not propose, the complainant could relocate internally to the
relatively stable north-west or north-east of the city. The State party
proposes rather that the complainant be returned to Kenya and then, taking
advantage of the UNHCR voluntary repatriation programme, the return to a
stable area of the complainant's choice.
Comments by the Complainant
5. By submission of 27 March 2002, the complainant commented on the State
party's submissions. As to the admissibility of the case, the complainant
concedes that his claims have been examined in Australia prior to the
lodging of the communication, but with the exhaustion of those remedies the
Committee should examine the claims. The complainant claims that his case
falls within the principle adopted in Elmi, contending that the State
party's assessment of the Somali political environment flies in the face of
generally known facts. He claims there is no central Government, and that
militia groups are acting in an organized capacity to suppress other clans.
5.2 As to the merits, the complainant rejects the State party's submissions,
contending instead that the political and military environment remains
unstable and that he risks torture. The complainant disagrees that the
situation is sufficiently altered to allay his fears and that most violence
now occurring is privately motivated. The complainant refers to a variety of
reports for the proposition that there is a picture of continuing
instability and an environment of risk of human rights abuses. The
complainant contends that the TNG has limited authority in the country,
being rather confined to Mogadishu. The complainant goes on to argue that
the State party's statements that there exists a central Government are
contradicted by recent travel advisories issued by the State party which
warn against travel to Somalia.
5.3 The complainant also disagrees that he should show direct evidence that
he would be subjected to torture in Somalia, contending instead that it is
rare that corroboration of specific threats can be provided. The complainant
disagrees that he could be relocated to a part of Somalia other than the Bay
region where he originates, noting simply that UNHCR does not currently
repatriate persons in the complainant's position to either the Puntland or
Somaliland regions.
Issues and Proceedings Before the Committee
6.1 The Committee has considered the communication in the light of all the
information made available to it by the parties, in accordance with article
22, paragraph 4, of the Convention.
6.2 Before considering any claims contained in a communication, the
Committee against Torture must decide whether or not it is admissible under
article 22 of the Convention. The Committee has ascertained, as it is
required to do under article 22, paragraph 5 (a), of the Convention, that
the same matter has not been and is not being examined under another
procedure of international investigation or settlement. The Committee has
also ascertained, as it is required to do under article 22, paragraph 5 (b),
of the Convention, that available domestic remedies have been exhausted.
6.3 The Committee considers that the communication has been substantiated
for purposes of admissibility, sufficiently elaborating the facts and the
basis of the claim for a decision by the Committee. As to the State party's
arguments as to inadmissibility ratione materiae of the communication, the
Committee considers it preferable to examine issues of the scope of articles
1 and 3, and the application thereof to the instant facts, at the merits
stage of the communication. Accordingly, the Committee finds that no
obstacles to the admissibility of the communication exist. Since both the
State party and the complainant have provided observations on the merits of
the communication, the Committee proceeds immediately with the consideration
of the merits.
6.4 The Committee recalls its jurisprudence that the State party's
obligation under article 3 to refrain from forcibly returning a person to
another State where there are substantial grounds of a risk of torture, as
defined in article 1 of the Convention, which requires actions by "a public
official or other person acting in an official capacity". Accordingly, in
G.R.B. v. Sweden [FN9] the Committee considered that allegations of a risk
of torture at the hands of Sendeero Luminoso, a non-State entity controlling
significant portions of Peru, fell outside the scope of article 3 of the
Convention. In Elmi v. Australia, [FN10] the Committee considered that, in
the exceptional circumstance of State authority that was wholly lacking,
acts by groups exercising quasi-governmental authority could fall within the
definition of article 1, and thus call for the application of article 3. The
Committee considers that, with three years having elapsed since the Elmi
decision, Somalia currently possesses a State authority in the form of the
Transitional National Government, which has relations with the international
community in its capacity as central Government, though some doubts may
exist as to the reach of its territorial authority and its permanence.
Accordingly, the Committee does not consider this case to fall within the
exceptional situation in Elmi, and takes the view that acts of such entities
as are now in Somalia commonly fall outside the scope of article 3 of the
Convention.
---------------------------------------------------------------------------------------------------------------------
[FN9] Op. cit.
[FN10] Op. cit.
---------------------------------------------------------------------------------------------------------------------
6.5 Moreover, the Committee has taken into account all relevant
considerations, including the existence in the State party of a consistent
pattern of gross, flagrant or mass violations of human rights, although the
existence of such a pattern does not as such constitute sufficient grounds
for determining whether the particular person would be in danger of being
subjected to torture upon his return to that country; additional grounds
must be adduced to show that the individual concerned would be personally at
risk. In this case, the Committee considers that the complainant has failed
to show that there are substantial grounds for believing that he is
personally at a risk of being subjected to torture in the event of return to
Somalia.
6.6 The Committee also takes note that the State party does not intend to
return the complainant to Mogadishu, and that the complainant will be at
liberty to avail himself of the UNHCR voluntary repatriation programme and
choose the area of Somalia to which he wishes to return.
7. The Committee against Torture, acting under article 22, paragraph 7, of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, is of the view that the removal of the complainant
from Australia would not entail a breach of article 3 of the Convention.
[Done in English, French, Russian and Spanish, the English text being the
original version.]
|
|