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 Siad 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 CHR Special Rapporteur’s report of January 2000, a US State
Department 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 the above 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. 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 utilise
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, the Committee
considered that acts inflicted by a non-government entity, without the consent or acquiescence of the State party,
fell outside the scope of article 3. In Elmi v Australia, 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.
1
2
4.5
The State party emphasises 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
1
2
Communication No. 83/1997.
Communication No. 120/1998.
4