August 2000, 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 subclan 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 recognised 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 emphasises 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 and decisions of
the International Court of Justice and the Iran-United States Claims Tribunal, as well as decisions of high national
courts, 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.
3
4
5
6
4.7
Turning to the facts of the case, the State party refers to a variety of documentary evidence 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 his identification had been of another tribal affiliation, depending on the affiliations of 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 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 something further is required to engage article 3 and the allegation of torture as a consequence
of return.
7
4.8
Secondly, the communication should be deemed inadmissible ratione materiae as the complainant has
failed to substantiate that there are substantial grounds for presently fearing torture in the case of his return. The
allegations of extortion are, in any event, not of torture. Moreover, the complainant’s fears are concentrated on a
small section of Mogadishu and not to all 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.
3
Jennings, R.; Watts, A. (eds.): Oppenheim’s International Law (9 th edition), 1992, at 550.
Case Concerning United States Diplomatic and Consular Staff in Tehran, ICJ Rep. (1980), at 3 (“Tehran Hostages”).
5
Short v Islamic Republic of Iran 82 (1988) AJIL 140, and Yeager v Islamic Republic of Iran 82 (1988) AJIL 353.
6
R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet [2001] 1 AC 61 (United Kindom); 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).
7
US State Department Country Report on Human Rights Practices 1992; Refugee Survey Quarterly Vol 15m No 1, p. 48-4;
Victims and Vulnerable Groups in Somalia – Research Directorate Documentation, Information and Research Branch,
Immigration and Refugee Board, Ottawa, Canada; Report of the Special Rapporteur on Somalia, submitted in accordance with
Commission on Human Rights Resolution 1999/75, 26 January 2000, at 4.
4
5