Hamza, unlike many of the boys he trained with, survived the assault. He was captured by the Puntland military and taken to jail. “Four Puntland soldiers beat me,” Hamza told Human Rights Watch. “They tied my hands behind my back and legs together with a very strong rope. They beat me with their gun butts and kicked me in the chest several times. Then they threw me into their vehicle.”
After six months’ detention in Garowe, Puntland’s administrative capital, he faced trial on charges of insurrection and terrorism before a military court. He described his trial:
The military court prosecutor asked me my name, if I had fought against Puntland, where I had been captured, and whether I had a gun. I was alone, there was no lawyer.
In court, I was asked if I was guilty, and I said, yes and that I had a gun but that I wasn’t fighting. The judge said, “If you were carrying a gun, then you are part of Al-Shabab.”
He was given a 10-year sentence. He has since been transferred to a child rehabilitation center, but his sentence has not been rescinded.
Hamza told Human Rights Watch he felt doubly victimized: “I feel afraid and let down. Al-Shabab forced me into this, and then the government gives me this long sentence.”
All Somali parties to Somalia’s 25-year-long armed conflict have recruited children, using them as combatants, porters, informants or to man checkpoints. Over the last decade, Al-Shabab has recruited thousands of children, some as young as 9, into its ranks and forced many to fight.
In 2014, Somalia’s federal government committed to promptly releasing children formerly associated with Al-Shabab to the United Nations and child rehabilitation agencies.
The abuses and hardships faced by children while in the hands of Al-Shabab do not end when they come into government custody – whether surrendering, being captured, or arrested in mass sweeps. Somali government authorities hide behind an outdated and ill-functioning legal system and very real security threats to treat children alleged to have been associated with Al-Shabab first and foremost as adults and criminals, rather than as victims of the conflict.
This report is based on interviews with 15 children recruited by Al-Shabab since 2015, 10 boys held in government custody following arrests in mass sweeps, and 40 interviews with relatives of boys prosecuted by military courts, along with two dozen interviews with lawyers, advocates working with children, and senior government officials. It focuses on the government’s inconsistent and at times abusive treatment of children alleged to have been associated with Al-Shabab, particularly in Mogadishu and Puntland. It finds that the arrest and detention of children alleged to have been associated with Al-Shabab by authorities are neither a measure of last resort nor are the children held for the shortest time possible.
Since 2015, authorities across Somalia have detained hundreds of boys suspected of joining or supporting Al-Shabab. In some instances, government security forces have captured boys like Hamza on the battlefield, but most boys are arrested during security operations, particularly in mass sweeps in the capital, Mogadishu.
After arrest, whether by the military, police or intelligence, children are usually transferred into the custody of Somalia’s National Intelligence and Security Agency (NISA) in Mogadishu or on occasion Puntland’s Intelligence Agency (PIA) in Bosasso. There they are detained and sometimes interrogated while cut off from communicating with their relatives and denied legal counsel. They are held with adult detainees and sometimes held incommunicado. These due process violations are all detrimental to their safety and well-being and in violation of Somalia’s international human rights obligations for the protection of children.
In a justice system that remains heavily reliant on forced confessions, children are not spared. Children in intelligence detention in Mogadishu and Bosasso have been coerced into signing or recording confessions and threatened and on occasion beaten, at times in ways that amount to torture.
There is no consistent government treatment of children it suspects are connected to Al-Shabab. While government officials have previously admitted to detaining boys deemed high risk, other factors, including a boy’s economic status, clan affiliation and external attention to the case, also determine their fate. Many boys are eventually released without charge, often after relatives intervene and bribe officials to ensure their release. Some children are handed over to child rehabilitation and reintegration centers run by nongovernmental organizations (NGOs), while others face trial before military courts for criminal charges of Al-Shabab membership, murder or conflict-related offenses.
Under international human rights law, governments are obligated to recognize the special situation of children who have been recruited or used in armed conflict, including children involved in terrorism-related activities, and provide assistance for their physical and psychological recovery and social reintegration. While children who were members of armed groups can be tried for serious crimes, non-judicial measures should be considered, and legal proceedings should be in accordance with international juvenile justice standards, taking into consideration the best interests of the child. Sentencing should prioritize rehabilitation and reintegration into society. The UN Committee on the Rights of the Child, which interprets the Convention on the Rights of the Child that Somalia ratified in 2015, discourages countries from bringing criminal proceedings against children within the military justice system.
While prosecutions and imprisonment of children on security charges in Somalia is not widespread, children are being tried for Al-Shabab-related crimes in military courts, largely as adults. The courts have shown no consistency on dealing with these cases, yet basic due process, including the right to present a defense and the prohibition on the use of coerced evidence, is regularly flouted.
Human Rights Watch conducted research into nine cases in which children have been sentenced by the military court in Mogadishu since 2015, primarily where children have been charged with membership in Al-Shabab or allegations of providing logistical assistance to the armed group. In Puntland dozens of children including Hamza and children as young as 12 spent months in Garowe and Bosasso prisons and appeared before military courts since 2016. The bulk of the cases were linked to Al-Shabab’s March 2016 attack.
The report refers in particular to the following military court trials of children:
- Five children arrested in Beletweyn, sentenced by the military court in Mogadishu on January 16, 2017 to eight years on charges of Al-Shabab membership (“armed insurrection”). Sentence reportedly upheld on appeal. They are currently serving prison sentences in Mogadishu Central Prison;
- A 16-year-old boy (aged 18 according to court documents), arrested in Mogadishu, sentenced to six years’ imprisonment in late 2016 on charges of Al-Shabab membership;
- Twenty-eight children ages 15 to 17 who took part in the March 2016 Al-Shabab operation in Puntland, sentenced by the military court on September 17, 2016, to between 10 and 20 years on charges of insurrection, terrorism and association with Al-Shabab. Handed over to a UNICEF-supported child rehabilitation center in Garowe in April, but sentences not rescinded; sentences reduced on appeal to 10 years on December 31, 2017;
- Nine children and one individual qualified as a child who took part in the March 2016 Al-Shabab operation in Puntland, sentenced on June 18, 2016 to death on charges of insurrection, terrorism, and association with Al-Shabab by the military court; sentences commuted to 20 years on January 26, 2017, after they were identified as under 18 by a joint UN-government age assessment exercise. An additional two individuals were later added to this group. Handed over to a UNICEF-supported child rehabilitation center in Garowe in April, but sentences not rescinded;
- A child and an 18-year-old among seven defendants sentenced to death for the murder of three government officials on February 15, 2017 in Bosasso; commuted to life on appeal on March 23 after they were identified as 18 and under by the authorities. Currently serving prison sentences in Bosasso prison; and;
- A child among six defendants charged with membership in ISIS in Bosasso on February 21, 2017; released in May after providing evidence to the court that they were arrested while defecting from ISIS.
In Mogadishu Central Prison, boys are detained in conditions that fail to meet basic juvenile justice standards, including with no access to education.
While Somali authorities have handed over 250 children to UNICEF-supported children’s rehabilitation centers since 2015 and child protection advocates say that direct handovers from NISA have increased in 2017, this has often been only after sustained advocacy efforts by child protection advocates and following lengthy detention of the children, rather than a clear sign of the authorities’ commitment to children’s rehabilitation.
Once admitted to child rehabilitation programs, authorities, including from the security forces, have occasionally interrogated children, and their legal status has at times remained unclear: in Puntland 40 children handed over to a UNICEF partner for rehabilitation in 2017 are still serving prison sentences of between 10 and 20 years for insurrection and Al-Shabab membership, raising serious concerns that these centers could serve more as correctional facilities than rehabilitation centers.
Independent oversight of children held on security charges within the criminal justice system is limited. While government oversight has improved, international and Somali child protection advocates have very limited access to intelligence facilities, prisons, and military courts. Similarly, the number of children held for Al-Shabab-related crimes in government custody around the country is unknown and there is no systematic recordkeeping system in place.
The existing legal framework regulating cases of children charged with Al-Shabab-related crimes is at best limited and at times in clear contravention of Somalia’s international obligations. New and draft laws and policies, including a draft anti-terrorism law, risk making it easier, not harder, to detain and prosecute children for Al-Shabab related crimes without basic juvenile justice protections for children and little consistent access to rehabilitation and reintegration.
While the Somali authorities face serious security threats, current practices are not only contrary to the best interests of children but may be counterproductive in the fight against Al-Shabab and only compound public fears and mistrust in the security forces. A 14-year-old boy who was picked up in a mass sweep and detained by NISA for two and half months in Mogadishu said: “You can get caught up in a bomb attack or you get caught up in a mass sweep by NISA. We are always being stopped, questioned. Either way, you face problems. It’s like we’re always in a prison.”
As Al-Shabab continues to unlawfully recruit and use children in its fight against the Somali government, the government, including state and regional administrations, need a coherent approach to children accused of Al-Shabab-related crimes that places the best interests of the child at the forefront.
The Somali government should immediately commit to ending arbitrary detention of children, allow for systematic independent oversight of children in custody, and transfer children to child protection advocates for rehabilitation, and when feasible, reintegration.
The government should not try children accused of crimes before military courts but bring them before civilian courts according to international juvenile justice standards, granting them full due process guarantees, including prompt access to counsel and their families. Children and adults should be detained separately. Any punishment for criminal offenses should be appropriate to their age, consider alternatives to detention, and be aimed at their rehabilitation and reintegration into society.
The government, supported by its international partners, should establish a civilian oversight system, notably a child rights’ commissioner, to review all cases of children in government custody suspected of association with Al-Shabab, while committing to limited security force interaction with children once handed over to child rehabilitation facilities. It should ensure that children are never detained with adults and not held in government custody solely for their association with al-Shabab or other armed groups.
Federal and regional authorities should commit to a thorough review, with international support, of existing and draft laws and policies that relate to treatment of children formerly associated with Al-Shabab or detained for security-related offenses.
International actors in the security sector, such as the United States, the United Kingdom, Turkey and the United Arab Emirates (UAE) should press for more concerted efforts to facilitate the handover of children to rehabilitation while helping to establish a fair and competent juvenile justice system. Partners should encourage lawmakers and authorities to criminalize and prosecute anyone found responsible for abuse of children.