EHRM, 28-06-2011, nr. 8319/07, nr. 11449/07

The Transitional Federal Government is recognised by the United Nations and almost all key foreign powers as the legitimate government of Somalia. However, it currently controls only a small section of Mogadishu centred on the port, the airport and the presidential palace. It is largely dependent on African Union troops for its survival.

AMISOM is an African Union force authorised by the UN Security Council and deployed to Mogadishu to support the Transitional Federal Government. It currently consists of 5,300 Ugandan and Burundian troops.

Ethiopian forces joined the conflict in 2006 to help drive out the Union of Islamic Courts. They remained in Somalia until their withdrawal at the beginning of 2009.

Al-Shabaab began as part of the armed wing of the Union of Islamic Courts. When the 2006 Ethiopian military intervention sent the leaders of the Union of Islamic Courts into exile, a hard core of al-Shabaab fighters remained in Somalia to fight. In their April 2010 report, ‘Harsh War, Harsh Peace’, Human Rights Watch indicated that al-Shabaab was an alliance of factions rather than a single entity, but the group's diverse leaders had a common agenda: defeating AMISOM and the Transitional Federal Government and extending Sharia law across Somalia. Some of its leaders have links with al-Qaeda although the extent of al-Qaeda's influence over al-Shabaab remains unclear.

Al-Shabaab has emerged as the most powerful and effective armed faction on the ground, especially in southern Somalia. They have received material support from the Eritrean government, which is eager to undercut Ethiopia's interests in the region. By the end of 2009 al-Shabaab controlled more territory than any other faction in Somalia, including Baidoa, the former seat of the Transitional Federal Government parliament, Jowhar, which had been one of the Transitional Federal Government President's most reliable strongholds, and the strategic port of Kismayo.

Al-Shabaab claimed responsibility for twin suicide bombings in the Ugandan capital Kampala on 11 July 2010, which killed 79 people watching the World Cup soccer final on television. It was al-Shabaab's first attack outside Somalia and heightened concerns about its ability to carry out more attacks in the region and beyond.

Hizbul Islam is another armed group which has both a Sharia agenda and the goal of driving AMISOM and the Transitional Federal Government from Mogadishu. In early 2009 it entered into an alliance with al-Shabaab but the alliance came to an end in October 2009 during the fight for Kismayo. In December 2010, however, it once again merged with al-Shabaab.

Ahlu Sunna Waljamaca is an Islamist group which professes to support a more moderate agenda. The group exists primarily in central Somalia, where it has maintained control over large strips of territory, predominantly in Galgadud and Hiran regions.

In February 2010 Ahlu Sunna Waljamaca signed a power-sharing and military unification pact with the Transitional Federal Government, although at times relations between the two groups were strained.

The fact-finding mission interviewed a number of anonymous sources, including international NGOs, security advisors and diplomatic sources, about the current security and humanitarian situation in southern and central Somalia. In particular, the mission sought to obtain information on which groups controlled which areas, how easy it was to travel between different areas, the security and human rights situation, and the conditions in the IDP camps.

Sources indicated that control of Mogadishu was divided between the Transitional Federal Government, backed by AMISOM troops, and al-Shabaab. Although the sources had different views on which groups controlled which districts, they mostly agreed that the Transitional Federal Government controlled the airport, the seaport, Villa Somalia and the road between the airport and Villa Somalia.

Sources indicated that the security situation in Mogadishu was poor, with thousands of civilians killed in the fighting between AMISOM and al-Shabaab. Areas controlled by al-Shabaab were at risk of shelling by AMISOM, while areas controlled by AMISOM were at risk of shelling by al-Shabaab. All parties to the conflict were guilty of indiscriminate shelling. Violence was sporadic and rape was an issue in many areas. Consequently, there was a constant movement of IDPs into and out of the city. However, one diplomatic source suggested that it would be possible to live in non-conflict areas of the city, which were generally considered to be safe.

Sources also indicated that the nature of al-Shabaab violence had become more sophisticated over the past twelve months as foreign fighters had brought with them new tactics and techniques. They not only carried out targeted attacks against AMISOM troops and Transitional Federal Government ministers and MPs, but they also carried out random killings of civilians in Mogadishu in order to create disorder and chaos.

The report noted that there were regular flights into Somalia, most of which were destined for Mogadishu International Airport. The EU Special Representative informed the Mission that 15–18 flights arrived in Mogadishu each day. An airplane captain working for African Express Airways also told the Mission that his airline had carried 12,000 passengers into Mogadishu in the first eight months of 2010.

The road between the airport and Mogadishu was controlled by the Transitional Federal Government with AMISOM support and these groups managed all checkpoints along the route. It would not be particularly dangerous for ordinary Somalis unless they found themselves ‘in the wrong place at the wrong time’. However, there were reports of a failed attack on the airport on 9 September 2010 and some sources suggested that contacts were required in order to make the journey from the airport. The EU Special Representative for the EU Delegation on Somalia indicated that those members of the diaspora who regularly travelled to Mogadishu were well-connected and that mobility was limited unless the individual was aligned with a militia. Likewise, a representative from an international NGO indicated that ‘any Somalis returning to Mogadishu International Airport would need a lot of preparation and would need to ensure they had contacts in Mogadishu’.

A representative from one international NGO suggested that al-Shabaab knew who was landing at the airport as they were receiving information from Transitional Federal Government soldiers based there.

Most of the sources interviewed agreed that Somalis were able to move around within Mogadishu without much restriction. Two sources described the checkpoints in the city as ‘random’ or ‘variable’ as they tended to change according to fighting areas and the level of control of specific groups. One source suggested that checkpoints operated by the Transitional Federal Government or Hizbul Islam were more difficult to negotiate as they were operated with less discipline and normally demanded money. Al-Shabaab checkpoints normally checked that people were obeying their code of behaviour and would therefore stop women travelling alone. Some individuals operating these checkpoints would punish those who were not acting according to al-Shabaab's rules.

Contrary to the majority opinion, the EU Special Representative informed the fact-finding mission that all civilians in Mogadishu would either be aligned to a militia or completely unable to get out of the town. The Special Representative even suggested that some Somalis were unable to leave their own district.

There was no consensus on which groups controlled the other regions in southern and central Somalia, although all agreed that al-Shabaab controlled most of the land south of a line drawn between Beletweyne and Dhusarmareb. Militias broadly aligned with the Transitional Federal Government controlled pockets of land on the Ethiopian border. Hizbul Islam was nominally in control of some small areas, including parts of the Afgooye Corridor, but al-Shabaab's influence in these areas was significant. Finally, the region of Galmudug was controlled by a local clan-based administration which acted under the umbrella of Ahlu Sunna Waljamaca.

Outside Mogadishu, people were generally permitted to travel within the areas controlled by al-Shabaab although they could encounter difficulties at checkpoints if they were not obeying al-Shabaab rules. Although al-Shabaab had endeavoured to remove ‘illegal’ checkpoints, a number of sources indicated that some clan militia checkpoints remained. The evidence appeared to suggest that it was possible to negotiate the various checkpoints, although a certain amount of risk was involved.

A diplomatic source stated that young men travelling in al-Shabaab held areas could be targeted by al-Shabaab for recruitment. This was supported by an international NGO, which advised that forced recruitment was becoming systematic. Young men were asked to register with al-Shabaab, including those who were stopped at checkpoints.

A number of sources considered the areas controlled by al-Shabaab to be stable and generally safe for those Somalis who were able to ‘play the game’ and avoid the unnecessary attention of al-Shabaab. One the other hand, one international NGO believed that there were ‘no safe areas in southern-central Somalia as long as al-Shabaab and Hizbul Islam were present’. Another NGO indicated that everywhere in southern and central Somalia had been affected by violations of international humanitarian law and by a situation of generalised violence and displacement over the past three years on account of the expansion of the insurgency outside Mogadishu. Finally, a diplomatic source stated that ‘everywhere is volatile and can change at any time’.

With regard to the human rights situation, forced recruitment of adults and children appeared to be an emerging problem, particularly for those displaced in the Afgooye Corridor. Sources suggested that all parties to the conflict recruited children, although it was not certain that the Transitional Federal Government forcibly recruited them. Child recruitment was, however, very common in al-Shabaab areas, as they would forcibly recruit the eldest son from local families, some of whom were as young as ten years old. Adult males were also forced to register with al-Shabaab in Merca and Doble.

Moreover, the sources indicated that in al-Shabaab areas, human rights were practically non-existent because of the organisation's interpretation of Sharia law, which was not in accordance with the beliefs of ordinary Somalis. Consequently, people lived in fear as there were serious punishments if al-Shabaab orders were not obeyed. Women in particular were routinely targeted and were not permitted to engage in trade. In addition, al-Shabaab had made a concerted effort to drive NGOs out of its areas by a number of means, including demanding payment of a ‘registration fee’ of up to USD 15,000, looting warehouses and threatening workers. In some cases al-Shabaab had stolen aid and confiscated the assets of NGOs to sell for profit. There was therefore no international NGO presence in al-Shabaab controlled areas and health and feeding programmes had been stopped, with significant consequences for the civilian population.

Finally, sources were asked about the conditions in IDP camps. They indicated that although those with resources had left Mogadishu, there were some 250,000 people displaced within the city and no humanitarian assistance was available to them. Estimates suggested that there were a further 200,000 to 500,000 people in the Afgooye Corridor, which had become increasingly urbanised. It was difficult to give an exact number of the people based in the corridor because, due to the nature of the fighting, a lot of people were going back and forward to Mogadishu. Moreover, access for NGOs was difficult as the corridor was controlled by ‘gatekeepers’ who controlled who and what moved into and out of the area. These ‘gatekeepers’ tended to be opportunists who were not aligned to any particular group but they were able to make assistance from NGOs very difficult. Two NGOs said that it was incredibly difficult to access the corridor and, where access was possible, aid was often diverted. Moreover, landlords in the area were either selling the land that the IDPs lived on or were charging rent that they could not afford, forcing them to move on.

One international NGO believed that there was a hierarchy within the camps, but did not know whether it was based on clan membership or length of residence. Consequently, it could not be guaranteed that majority clan members would not face problems within the IDP camps.

The sources were not aware of any other significant IDP settlements within Somalia.

Operational Guidance Notes (‘OGNs’) are produced by the Border and Immigration Agency of the Home Office. They evaluate the general, political and human rights situation in a country and provide guidance on the nature and handling of the most common type of claim.

The OGN on Somalia of 1 July 2010 described how fighting by Transitional Federal Government troops, allied militias, and AMISOM forces against anti-government forces in southern and central Somalia had resulted in widespread human rights abuses, including the killing of thousands of civilians, the displacement of more than one million people and widespread property damage, particularly in Mogadishu. However, a fall in clashes between government troops and insurgents had led to a substantial drop in the numbers of civilians killed in fighting in Mogadishu in 2009. The Mogadishu-based Elman Peace and Human Rights Organisation stated that 1,739 civilians were killed in fighting in 2009, down from 7,574 in 2008 and 8,636 in 2007. At least 4,911 civilians were wounded and 3,900 families displaced by clashes in 2009.

The report noted that while Mogadishu remained the focus of the insurgency, fighting had occurred in other parts of the country, including Beletweyne, Kismayo, the Gedo and Bakool regions, from Jowhar to Harardhere and around the central towns of Dhusamareb and Beletweyne.

The report indicated that restrictions on movement within Somalia had reduced significantly compared to when the AIT considered the situation in AM and AM (Somalia). In particular, checkpoints operated by the Transitional Federal Government had decreased and there were no reports of armed clan factions operating checkpoints in 2009. Al-Shabaab had established checkpoints at the exit/entry routes of the towns under its control for security reasons. It checked goods, searched people and ensured that its strict Islamic codes were enforced, but it did not collect money. There were also reports that Al-Shabaab had eradicated extortion, robbery and murder from bandits in areas it controlled.

With the exception of Mogadishu, there were no reports of checkpoints between towns or within towns, as was common in previous years. There were, however, several checkpoints on the route from Mogadishu towards the Central Regions and some precautions could be necessary, particularly during militia fighting. There was no evidence that those not of adverse interest to the Transitional Federal Government, al-Shabaab or groups such as Hizbul Islam or Ahlu Sunna Waljamaca, would be unable to pass through checkpoints safely. During overland trips clan protection was not required unless ongoing animosities between two rival clans were involved. Individuals would not generally need an escort, but if they considered an escort to be necessary, it would be feasible for them to arrange one either before or after arrival. It would therefore be feasible for many to return to their home areas from Mogadishu International Airport as most areas were more accessible than previously.

The report also noted that it was possible for Somalis to fly from Mogadishu International Airport directly to Hargeisa, in Somaliland, a region which was widely considered to be relatively safe. However, the authorities in Somaliland, like the authorities in Puntland, would only admit those who originated from the territory or those who had close affiliation to the territory through clan membership. In Somaliland, the majority clan was the Isaaq.

With regard to the human rights situation, the report noted that:

In respect of the humanitarian situation, the report indicated that by November 2009 the total number of displaced persons had reached 1.55 million, 93% of whom were concentrated in southern and central areas, including 524,000 in the Afgooye corridor. The security situation was having a negative impact on the relief operation. Rising threats and attacks on humanitarian operations, as well as the imposition of demands from armed groups, had made it virtually impossible for the World Food Programme (‘WFP’) to continue reaching people in need in southern Somalia. Inflammatory statements by al-Shabaab against relief organisations, threats against humanitarian staff, explicit rejection of foreign food aid and demands for fees had all worsened.

The report concluded that while the general humanitarian situation in southern and central Somalia was poor, it was not so serious as to cause, in itself, a breach of Article 3 of the Convention. Aid agencies were subjected to obstructions and dangers in delivering aid to IDPs but most of those in need continued to be reached and efforts were being strengthened to sustain critical food operations in southern and central Somalia. Each case therefore had to be considered on its individual merits in order to assess whether, in the particular circumstances of the case, the Article 3 threshold was met.

The report indicated that the Transitional Federal Government's respect for human rights had improved. However, the poor human rights situation in Somalia had deteriorated further during the year, especially in the areas controlled by al-Shabaab and allied extremist groups. Human rights abuses included unlawful and politically motivated killings, kidnappings, torture, rape, amputations, beatings, official impunity, harsh and life-threatening prison conditions, and arbitrary arrest and detention.

With regard to movement within Somalia, the report indicated that checkpoints operated by the Transitional Federal Government and its associated militias had decreased. According to a report by UNOCHA, al-Shabaab established checkpoints at the exit/entry routes of the towns under its control for security reasons. There were no reports of checkpoints between towns or within towns, as was common in previous years. There were also no reports of armed clan factions operating checkpoints during the year.

The report noted that the humanitarian situation in Somalia remained dire as the fighting in Mogadishu had added more challenges to already poor conditions on the ground. An estimated 1.1 million people had been displaced and more than 475,000 had fled to neighbouring countries in the past two years. Targeted attacks on humanitarian groups had made delivery of assistance difficult and the Obama Administration had suspended assistance in areas controlled by al-Shabaab.

In his report to the Security Council on 11 May 2010, the Secretary General noted that there had been increased fighting in southern and central Somalia during the first three months of 2010. Over 110,000 people had been displaced during this period. In addition to the fighting in Mogadishu, there was also continued fighting between al-Shabaab and Hizbul Islam in Lower Juba and Lower Shabelle, and between al-Shabaab and Ahlu Sunna Waljamaca in the central region. National United Nations staff faced direct threats from armed groups in these areas and the presence of international staff in these regions was restricted.

The security situation continued to have a direct impact on the provision of humanitarian aid. The report noted that on 28 February 2008 al-Shabaab called for the termination of all World Food Programme (‘WFP’) operations inside Somalia, and on 1 March 2010 and 7 April 2010 WFP compounds in Buale and Wajid were occupied by al-Shabaab. There had been no food distribution to over 300,000 IDPs in the Afgooye corridor since November 2009 owing to inaccessibility and another 1.1 million intended beneficiaries were not receiving food distributions throughout the south and central regions.

In his report to the Security Council on 9 September 2010, the Secretary General noted that volatility and insecurity had once again increased in Mogadishu. AMISOM and the Transitional Federal Government frequently engaged the insurgents in response to mortar fire and direct attacks and military operations to secure positions in key districts of Mogadishu led to fierce battles. Moreover, the frequency of attacks with improvised explosive devices had led to an increase in civilian casualties during the reporting period. According to the World Health Organisation, approximately 1,600 civilian casualties were admitted to the two main hospitals in Mogadishu from 20 March 2010 to 11 July 2010. That figure, which included almost 400 children under the age of 5 and 48 registered deaths, had left Mogadishu's already weak health services struggling to cope with the casualties. He also reported that beyond Mogadishu, sporadic clashes between al-Shabaab and Ahlu Sunna Waljamaca continued in the central regions and the continuing insecurity had hampered UN operations in Somalia by limiting freedom of movement for UN staff and contractors. In July 2010 al-Shabaab seized the compound of the World Food Programme and the houses of six national staff.

The ongoing conflict, particularly in Mogadishu, had displaced 179,000 people in the first quarter and 75,000 people in the second quarter of 2010.

In the Secretary-General's report of 9 November 2010 on children and armed conflict in Somalia, he noted that civilians, including children, continued to be the majority of casualties in Somalia, primarily as a result of being caught in the crossfire between the parties to the conflict, shelling and explosions. During 2009 3.64 million people, including approximately 1.8 million children, relied on humanitarian assistance. However, food supplies remained disrupted, access to clean water and medical assistance hindered, and hospitals were stretched to capacity. As from January 2010, food distribution by the World Food Programme was disrupted in all areas controlled by al-Shabaab.

Moreover, the climate of violence and impunity exacerbated grave violations of children's rights as individuals were taking advantage of the lack of rule of law and the availability of arms to commit violent crimes against children and other vulnerable members of the population. This was borne out by evidence of rising levels of acts of sexual violence against children. Most at risk were women and girls living on the streets or in open and unprotected settlements for IDPs. In addition, available information indicated that al-Shabaab had undertaken systematic and widespread recruitment of children for use in the conflict. Indeed, it was alleged that at the Galduuma base between Bay and Lower Shabelle, al-Shabaab had 1,800 children, some as young as 9 years old.

In his most recent report to the Security Council, dated 28 April 2011, the Secretary General stated that a major military offensive against Al-Shabaab had begun on 19 February 2011. The offensive by the Ahlu Sunnah Wal Jama'a and other groups allied with the Transitional Federal Government against Al-Shabaab in southern central Somalia had focused on the Ethiopia-Kenya-Somalia border. Hostilities centred on the Gedo, Bay and Bakool regions, with armed conflict most prevalent in Bula Hawa and, to a lesser extent, in the vicinity of Beletweyne and Dolo. Troops allied with the Transitional Federal Government had taken control of the town of Dhobley, close to the Kenyan border, on 3 April 2011. Reports of heavy casualties and intensified recruitment efforts on the part of Al-Shabaab suggested that the group's capabilities might have been reduced. However, Al-Shabaab continued to receive arms and ammunition through southern Somali ports and acquire financial resources from extortion, illegal exports and taxation.

At the date the report was drafted, heavy fighting had again broken out in Mogadishu and International Committee of the Red Cross reported that hospitals were swamped with war-wounded. According to a report by the Elman Peace Center of Somalia, in the first seven months of 2010 918 civilians died and 2,555 were injured as a result of the increased fighting and shelling. While most casualties appeared to have been the result either of attacks by al-Shabaab and its allies against Transitional Federal Government and AMISOM forces or retaliatory attacks by AMISOM, direct fighting between Islamists such as Ahlu Sunna Waljamaca and al-Shabaab combined with inter-clan clashes in central Somalia also contributed to the high number of deaths. In addition, reports indicated that parties to the conflict had failed to adhere to the principles of international humanitarian law relating to the protection of civilians as hostilities had been waged in urban areas and precautionary measures to avoid civilian casualties had been disregarded.

With regard to the human rights situation in areas under al-Shabaab's control, United Nations Workers recorded reports of nine executions by firing squad or stoning, mostly for alleged spying or murder, five cases of amputation, mostly of suspected thieves, and the flogging or whipping of some twenty-eight individuals. In addition, seven cases of beheading were reported, including those of five workers allegedly killed in April 2010 because they were involved in reconstruction work at the Parliament, and two people were allegedly shot dead in June 2010 when they fled from a house in Mogadishu raided by Hizbul Islam because they were watching a World Cup match.

Displacement also continued to be a problem. According to a UNHCR report, during the first seven months of 2010 50,065 Somalis sought refuge in neighbouring countries and over 200,000 were internally displaced. As of the end of July 2010, there were 600,484 Somali refugees, mainly hosted in Kenya, Yemen, Ethiopia, Eritrea, Djibouti, Tanzania and Uganda. In addition, 1.4 million Somalis were internally displaced. Assessments conducted revealed that there was a high prevalence of sexual violence in IDP camps, victims were generally of minority clan origin, bereft of clan protection and often forced to engage in risky coping mechanisms.

Recruitment of children to be put on the front line remained an issue of major concern. Although recent media attention highlighted the presence of children within the ranks of forces linked to the Government, the majority of reports of new instances of child recruitment attributed responsibility to anti-Government elements.

The report further noted that a public health crisis persisted in southern and central Somalia. While good rains between April and June 2010 had improved the food security situation, two million people (27 percent of the total population of Somalia) continued to face a humanitarian crisis. Moreover, the number of acutely malnourished children was estimated to be 230,000, of which 35,000 were severely malnourished, and the majority of these were in southern and central Somalia. The forced movement of people on account of the conflict also limited access to clean water and basic health services.

UNHCR's Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Somalia (‘the Eligibility Guidelines’) were published on 5 May 2010. The Eligibility Guidelines noted that over the last three years there had been a consistent failure by all parties to respect basic principles of international humanitarian law, resulting in civilians regularly being caught in the cross-fire. Indiscriminate bombardment and military offensives were carried out in civilian areas with little or no regard for the rules of war and road-side and vehicle-borne bombs, grenade attacks in civilian areas, and deliberate attacks on civilian targets were all too frequent. Hospital records indicated that there were over 900 civilian casualties in Mogadishu in March and April 2010. Other estimates suggested that between 20 and 50 civilians were killed in Mogadishu each week.

While the armed conflict was a major cause of displacement, the report noted that increasing numbers of Somalis were fleeing due to fear of persecution linked to the recent political and human rights situation. Others feared persecution due to perceived or actual contravention of traditional Somali social norms and practices. These groups included members of minority clans, women of specific profiles, victims of blood feuds, Christian converts, and lesbian, gay, bisexual and transgender individuals.

Consequently, UNHCR concluded that the widespread disregard of their obligations under international law by all of the parties to the conflict and the reported scale of human rights violations made it clear that any person returned to southern and central Somalia would, solely on account of his or her presence there, face a real risk of serious harm. Moreover, UNHCR considered that there was no internal flight alternative available inside southern and central Somalia.

UNHCR identified three potential agents of persecution. First, there were Islamic militant groups such as al-Shabaab and Hizbul Islam. Both groups had been accused of, and both had admitted to, using the civilian population as human shields during military operations. Both groups also had conducted a systematic campaign of intimidation and assassination of civilians working for, associated with, or perceived to be collaborating with the Transitional Federal Government, AMISOM or the Ethiopian forces. They had also recruited young people and children into their ranks, often with threats of force and violence. Finally, they had set up Islamist administrations in areas under their control and issued decrees to restrict social behaviour. The enforcement of these decrees was often extreme and abusive and violations were punished severely by Sharia courts.

Secondly, UNHCR indicated that business persons and civil society figures were particularly at risk as a result of the increased criminality in Mogadishu.

Finally, UNHCR identified the Transitional Federal Government and AMISOM as potential agents of persecution. It noted that both groups were accused of indiscriminately shelling civilian areas of Mogadishu in reprisal to mortar attacks launched by opposition forces. In addition, both groups had also been accused of firing at civilians.

The report further noted that effective State protection was unavailable in southern and central Somalia given the situation of armed conflict and the inability of the government authorities to extend control over any territory outside a few districts in Mogadishu. Moreover, since 2007 clan protection had been undermined in Mogadishu and increasingly in other regions of southern and central Somalia by the ongoing conflict and by the diminution of the traditional clan systems of justice due to the favoured strict interpretations of Sharia law being implemented by al-Shabaab and Hizbul Islam in areas under their control.

Amnesty International noted that civilians in Mogadishu and other cities such as Dhusamareb in central Somalia and Beletweyne in the Hiran region continued to be killed and seriously injured due to the fighting between the armed opposition groups and pro-TGF forces. It noted that:

With regard to the security situation in Mogadishu, they noted that:

The report indicated that the delivery of emergency humanitarian aid to Somalia was shrinking, as aid workers were coming under attack and armed groups were imposing restrictions on the movement of international agencies working in areas under their control. In particular, it noted that:

On 4 January 2010 the World Food Programme suspended its work in southern Somalia due to insecurity for its staff and the demands placed on them by parties to the conflict. Ninty-five percent of the areas from which the organisation had withdrawn were under the control of al-Shabaab, and al-Shabaab subsequently indicated that it would never permit the organisation to return. However, Amnesty International noted that over half of Somalia's population was dependent on food aid and many of those people lived in the areas that the WFP had withdrawn from.

The report also noted that the WFP had experienced difficulties in delivering food to the IDP settlements in Afgooye, where some 360,000 persons displaced by the conflict were thought to live. On 28 February 2010 armed men stopped trucks transporting food aid from Mogadishu to Afgooye and the WFP have since stated that the last time they organised a general food distribution in Afgooye was in November 2009.

The report indicated that civilians in Mogadishu continued to bear the brunt of the fighting and were often caught up in shelling and cross-fire by all parties to the conflict. There were nearly weekly incidents of fighting and shelling between armed opposition groups on one side and Transitional Federal Government forces and AMISOM troops on the other, and near weekly civilian deaths and injuries as a result.

Medical records of the Daynile hospital on the outskirts of Mogadishu showed that for the first seven months of 2010 48 percent of its patients were suffering war-related injuries and 38 percent of those patients were women and children. Between June and July 2010, hundreds of civilians were killed or injured in Mogadishu. Some field reports claimed that there were as many as fifty deaths in one day, while UNHCR estimated that during the last week of August and the first week of September 2010, 230 civilians were killed and 400 were injured in fighting.

Likewise, Médecins sans Frontières stated that between 23 August and 24 September 2010 its medical team in Daynile hospital treated 542 war-wounded people and performed over 200 surgeries. Following intense fighting on 23 September 2010 MSF treated 161 war-wounded patients in one day.

The African Union recently signalled its intention to increase the number of AMISOM troops to 8,000 and Amnesty International believed that when this happened it was likely to result in more attacks against the force by armed Islamist groups and more retaliatory shelling by AMISOM.

The report noted that the fighting had also caused the destruction of homes, the separation of families during chaotic flight, and massive displacement. UNHCR estimated that 42,400 people had been displaced from within and around Mogadishu since 23 August 2010, some 25,400 having fled Mogadishu and about 17,100 others having moved to different parts of the city.

Al-Shabaab had also been seizing cities elsewhere in southern and central Somalia. In particular, there had been clashes in and around Kismayo, Dhusamareb, Beletweyne and Dobley. As a result, 29,000 civilians had been displaced from Dhusamareb and 25,000 had been displaced from Beletweyne. In addition to the fighting, al-Shabaab had also severely restricted humanitarian access in most of southern and central Somalia, putting civilians at risk. According to the report, humanitarian access in southern Somalia was at its lowest since the end of 2006.

In addition to indiscriminate attacks and the situation of generalised violence, certain categories of people were particularly at risk of targeted killing. These categories included people linked with the Transitional Federal Government, civil society activists, aid workers and journalists. Children and young men were also at high risk of being forcibly recruited to fight for the armed Islamist groups.

This report, which was published on 8 December 2010, focussed on the treatment of Somali refugees and asylum-seekers in Kenya, which hosted the largest number of Somali refugees in the region. As of September 2010, there were 338,151 registered refugees in the region, but it was estimated that the actual number was much higher.

In 2007 the Kenyan authorities closed the country's border with Somalia and, according to estimates of Kenyan NGOs, thousands of Somali refugees were subsequently returned to Somalia by the Kenyan security forces. Some were expelled at the border while others were denied entry altogether. Many of these refugees were women and children who, according to UNHCRs eligibility guidelines, should have been granted international protection.

Amnesty International also received numerous reports of the Kenyan police at the closed border threatening asylum-seekers with forced removal to Somalia in order to extort bribes or arresting or detaining asylum-seekers until they paid a bribe. In addition, Somali asylum-seekers were often arbitrarily arrested, detained and charged with ‘illegal entry’.

Prior to the closure of the border, new refugees were registered and medically screened at an UNHCR-administered transit centre 15km from the border before being transported to refugee camps. When the border closed, this transit centre also closed with the consequence that refugees who made it to Kenya had to travel a further 80km to the refugee camps before they could be registered. This journey was often a dangerous one, during which Kenyan police were able to commit abuses against them with impunity.

Approximately 280,000 registered Somali refugees were confined to three refugee camps in Dadaab in north eastern Kenya, which were originally intended to accommodate 90,000 refugees. As a result of the severe overcrowding, access to shelter, water, sanitation and other essential services was impeded. As no plots of land were available, new refugees could not build shelters and instead had to stay with relatives or clan members. In addition, the water infrastructure was only designed for one third of the number of people currently living in the camps and, as a result, many refugees complained that the allocation of water was insufficient. Those living at the edges of the camps often had to walk long distances to collect water.

Refugees also complained of insecurity in the camps, which they attributed either to tensions between different clans or to the alleged presence of members of or sympathisers with al-Shabaab. Incidences of theft and sexual abuse were on the increase. Aid and protection agencies told Amnesty International that there were not enough police officers present in the camps adequately to address security incidents. In any case, refugees often distrusted the Kenyan police as many had been the victim of abuses by the security forces while on their way to the camps.

In October 2009 reports emerged that the Kenyan security forces were recruiting Somali refugees for military training in order to fight for the Transitional Federal Government in Somalia. UNHCR subsequently launched an awareness campaign in the camps, warning refugees that they would lose their refugee status if they joined armed groups.

Somali refugees in the Dadaab camps were generally not permitted to leave the camps, unless in exceptional circumstances, and they had almost no livelihood opportunities. They did, however, receive free humanitarian assistance in the camps.

In this report, published in April 2010, Human Rights Watch documented abuses by al-Shabaab, the Transitional Federal Government and AMISOM in Somalia. The report indicated that over the past year, hostilities had raged in strategically important areas, like Mogadishu, while much of the rest of Somalia enjoyed relative peace. However, the report concluded that both the inhabitants of the shattered capital and those living in more peaceful areas had endured devastating patterns of abuse.

In Mogadishu and in other conflict areas in southern and central Somalia the fighting had exacted a heavy toll on civilians. In particular, the report noted that all parties to the conflict had conducted numerous mortar attacks against enemy forces in densely populated areas of Mogadishu without regard for the civilian population, causing a high loss of civilian life and property. While mortars could be highly accurate weapons if guided to their targets by spotters or guidance systems, none of the warring parties in Mogadishu had employed such methods. Opposition armed groups had indiscriminately fired mortar rounds in the general direction of Transitional Federal Government or AMISOM installations in southern Mogadishu. Transitional Federal Government and AMISOM forces sometimes responded in kind, directing mortar rounds towards the general area they had taken fire from or simply bombarding areas such as Bakara Market that were opposition strongholds. Such attacks, while of limited military value, caused considerable loss of civilian life and property damage.

The report noted that there had been sporadic fighting between other groups outside Mogadishu which had exacted a heavy toll on civilians. For example, clashes between Hizbul Islam and Ahlu Sunna Waljamaca around the central towns of Dhusamareb and Beletweyne displaced more that 25,000 people at the beginning of 2010.

The report further indicated that humanitarian workers had been targeted. According to the Office of the UN Emergency Relief Co-ordinator, 47 aid workers were killed in Somalia in 2008 and 2009. Humanitarian workers also faced a variety of other threats, from the broader trend of indiscriminate violence in conflict areas to al-Shabaab accusations of spying on behalf of western powers. For example, in early 2009 the WFP suspended delivery of food aid to a vast swath of southern Somalia controlled largely by al-Shabaab, citing the group's escalating attacks and harassment against its staff and ‘unacceptable’ demands for payment.

Forced and unlawful recruitment was also a problem. The report noted that opposition forces, especially but not exclusively al-Shabaab, were expanding their ranks by threatening those who resisted with death and at times carrying out their threats. In addition, both insurgent groups and government forces were recruiting and using child soldiers to varying degrees and had entered refugee camps in Kenya to enlist additional fighters. The report noted that al-Shabaab had recruited children in a more deliberate and systematic manner than the Transitional Federal Government or other armed groups. Thus the recruitment of children — and the fear of it — was widespread in many areas controlled by al-Shabaab.

The report stated that in areas controlled by al-Shabaab (much of the south of Somalia), the population was subjected to targeted killings and assaults, a repressive form of social control and brutal punishments under its draconian interpretation of Sharia law, which went well beyond its traditional interpretation in Somalia. While in many areas al-Shabaab's rule had brought relative peace and order, security came at a steep price. In many areas, al-Shabaab dictated even minute details of daily life, from clothing styles to prayer observance to cell phone ring tones. The report indicated that:

Human Rights Watch also interviewed a widower in an IDP camp in the Afgoye corridor, who claimed that al-Shabaab gunmen had threatened to kill him if he didn't stop tucking in his shirt, which they criticised as a western custom.

Human Rights Watch noted that while all Somalis living under local al-Shabaab administrations had to cope with onerous and repressive edicts, women bore the brunt of the group's repression and abuse. In particular, some al-Shabaab leaders had ordered women to wear a particularly thick and bulky type of abaya, an over-gown which covered everything except the hands, face and feet. Al-Shabaab fighters would patrol neighbourhoods and punish women in lighter-weight abayas. In many cases women were beaten or whipped for wearing the wrong clothing.

In addition, al-Shabaab administrations ordered women to close their shops as commercial activity permitted them to ‘mix with men’. In a country with a vast number of war widows and female-headed households, this edict left many families without crucial sources of income. Moreover, the segregation of men and women applied to all areas of daily life. Women were not permitted to go to the market with men, even if they were relatives, and if travelling in a vehicle, they had to sit in different seats. There were reports of women being flogged at checkpoints if they were found to be sitting beside a man.

Finally, the report noted that in many areas, al-Shabaab leaders had embraced amputations and executions as punishment and turned them into a public spectacle. Since 2008 at least three people had been stoned to death for allegedly committing adultery. There were some unconfirmed reports that one of these people was a thirteen year old girl.

Human Rights Watch Annual World Report summarised the situation in Somalia as ‘one of the world's worst human rights catastrophes’. Mogadishu was wracked by indiscriminate warfare in which all parties were implicated in war crimes or other serious human rights abuses, while much of the rest of the country was under the control of local administrations linked to armed opposition groups. In many of these areas the population had suffered from the abusive application of Sharia law and forced conscription of civilians, including children, as militia fighters. In addition, a humanitarian crisis of enormous proportions was unfolding, fuelled by years of drought and insecurity that had often prevented the effective delivery of aid. Some 3.75 million people — roughly half of Somalia's remaining population — were in urgent need of humanitarian assistance. More than a million people were displaced from their homes within Somalia and tens of thousands had fled the country as refugees in 2009.

The delivery of humanitarian assistance to Somalia had been severely hampered by the prevailing insecurity and by threats specifically targeting humanitarian agencies. Most of the humanitarian agencies operating in Somalia had had to dramatically curtail their operations or had been driven out of southern and central Somalia altogether. In opposition-controlled areas where millions of Somalis were in need of assistance, humanitarians had come under regular threat by al-Shabaab and other groups which accused them of colluding with international efforts to back the Transitional Federal Government.

This report, which was published in June 2010, details the continuing abuses perpetrated by the Kenyan authorities against Somali refugees and asylum-seekers. It noted that despite the closure of the border, more than 140,000 refugees entered Kenya and registered at the Dadaab camps between 1 January 2007 and 30 April 2010. However, the closure of the border and UNHCR's transit centre had created a lawless no man's land in Kenya's border area near the refugee camps. Consequently, asylum-seekers endeavouring to reach the camps were often intercepted by Kenyan police who sought to extort money from them and unlawfully arrest, detain, abuse and even deport those who could not pay.

Human Rights Watch spoke with dozens of Somali refugees whose vehicles had been stopped by police patrolling the border to extort money from them in exchange for free passage to the camps. In some cases, police had raped women and physically assaulted men. In many other cases, refugees were arrested and detained by the police before being permitted to register in the camps. They were detained in overcrowded cells with poor ventilation and no, or almost no, food and water. Some were not permitted to use the toilet and had to use the cell floor to urinate and defecate. Detained refugees were often released upon the payment of a bribe. If they could not pay, they were threatened with court proceedings in a last ditch attempt to extort money from them.

Moreover, Human Rights Watch documented eight separate incidents in which Kenyan police returned asylum-seekers to Somalia. All of these incidents, which involved 152 men, women and children, took place between September 2009 and March 2010. According to this sample, Human Rights Watch estimated that hundreds if not thousands of Somalis were being returned to Somalia each month in breach of the principle of non-refoulement.

Such widespread abuses compelled many asylum-seekers to travel through Kenya on smaller paths where criminals preyed on them, stealing their belongings and raping women.

There were further reports of serious abuses by Kenyan police officers within the refugee camps. Seven refugees told Human Rights Watch of ten separate incidents during which police had violently assaulted them or during which they had observed police assaulting other refugees. One woman complained that she had been raped by a police officer in the camps.

In addition, refugees reported that the police failed to respond to allegations of sexual violence within the camps. In particular, a lack of capacity and expertise impeded the prevention, investigation and prosecution of acts of sexual violence. International policing standards required 1 police officer per 400 people. Although Kenya's official average was 1 per 800 people, the official ration in the camps was 1 per 5500 people. There were reports that the police would not investigate crimes unless the victims could pay them, and in other cases it was alleged that investigations were discontinued and perpetrators were released upon the payment of a bribe. According to UNHCR, in 2009 police in the camps prosecuted sixteen cases of sexual and gender-based violence of which seven resulted in convictions, six in acquittals, and three remained pending at the end of the year.

Human Rights Watch also reported that since the early 1990s, Kenya had adopted an informal encampment policy for most refugees, restricting their movement to the limited confines of the refugee camps. Refugees found outside the camps without ‘movement passes’ were arrested, fined and imprisoned for months at a time.

The International Displacement Monitoring Centre estimated that as of November 2009 1.55 million people were internally displaced in south and central Somalia. Many IDPs had fled from the conflict in Mogadishu. Hundreds of mini-buses were ferrying people out of the city but, as a result of high demand, the cost of transportation was going up daily and many people were being forced to remain in the city.

Some IDPs had fled from conflict in other areas of southern and central Somalia. The report noted that people in Beletweyne, Kismayo and Afmadow had been displaced as a result of fighting in late 2009. In addition, up to 90 percent of the population of Dhuusamarreeb and Guriceel towns in the Galgaduud region of central Somalia fled their homes after fighting began in December 2008. Many of these people had already been displaced as a result of the fighting in Mogadishu.

Many of the displaced from Mogadishu moved to the already overcrowded settlements that lined the 30 kilometre road between Mogadishu and Afgooye. UNHCR had estimated that in November 2009 there were 610,000 IDPs around Afgooye, 370,000 around Mogadishu, 150,000 in Galgadud, 70,000 in Galkayo (Puntland), 66,000 in Baydhaba and 51,000 in Hiran. However, due to the security situation, it was extremely difficult to verify these figures.

The report further noted that half of the population in Somalia was believed to be in need of humanitarian assistance but the continuing insecurity was preventing the delivery of essential supplies. In May 2009 militia had attacked a UNICEF warehouse. In July 2009 camps in Jowhar hosting 49,000 IDPs were cut off from assistance as the WFP was unable to distribute food due to insecurity. In August 2009 UNICEF were forced to suspend the dispatch of hundreds of tons of supplies for the prevention and treatment of acute malnutrition. Targeting of humanitarian workers has also affected delivery of aid to needy populations. From 2008 to November 2009 some 42 aid workers had been killed, 33 had been abducted and 10 remained in captivity.

In July 2009 al-Shabaab announced a ban on a number of UN agencies in areas of southern and central Somalia under its control, including the United Nations Development Agency. Towards the end of November 2009 al-Shabaab demanded that WFP stop importing food into Somalia from January 2010 and instead buy local produce, despite the fact that the country could not meet the food needs of its population. Despite the threats, WFP managed to provide food through local and international partners where security permitted. In the first half of 2009, WFP provided food aid to 2.87 million Somalis. UNICEF and other agencies continued to provide health care and water, sanitation and health programmes in IDP settlements. However, the security situation had impacted these programmes.

Aid work had also been impacted by funding cuts. The USA had withheld millions of dollars from UN agencies, possibly due to a fear that donations may reach al-Shabaab, which was thought to have growing ties with al-Qaeda. In November 2009 WFP reported that its food supply to Somalia had been effectively broken as a result of the USA's policy as it had been the largest donor to the WFP.

In September 2009 Oxfam reported that poor sanitation and the lack of access to basic services were creating a public health emergency in IDP camps. It described the Afgooye camps as ‘the world's densest concentration of displaced people’ and described the situation as ‘a human tragedy of ‘unthinkable proportions’’. The camps were also vulnerable to environmental problems. In October 2009 flash floods hit IDP camps in Kismayo and Mogadishu and destroyed the makeshift shelters of thousands of people. In Kismayo, rains left an estimated 36,000 people homeless and exposed them to mosquitoes and other hygiene-related problems.

The report noted that close to 80 percent of the Somali population had no access to safe water and nearly 50 percent had no access to sanitation. Many displaced women were forced to walk up to 10 kilometres each day to fetch water, increasing the risk of being attacked or raped by militias. IDPs often had to pay to use the latrines in the camps in addition to paying rent. As a result, many camps were littered with garbage and faeces, increasing the incidence of disease.

On 5 January 2010 the WFP issued a statement reporting that:

The Food Security and Nutrition Analysis Unit (FSNAU) reported in its Special Brief - Post-Deyr ‘09/10 Analysis issued on 12 February 2010 that Somalia has:

In a report of 21 December 2009, entitled ‘Top ten under-reported humanitarian stories of 2009, MSF described the situation in Somalia as follows:

The Government submitted that the applicants had failed to exhaust domestic remedies as they did not make fresh claims for asylum under paragraph 353 of the Immigration Rules HC 395 (as amended) in light of the developing situation in Mogadishu. They further submitted that the second applicant also failed to exhaust domestic remedies as he had not applied for an order for reconsideration of the Asylum and Immigration Tribunal's decision pursuant to section 103 of the Nationality, Immigration and Asylum Act 2002.

Alternatively, the Government submitted that the applicants' complaints under Article 3 of the Convention were manifestly ill-founded.

The applicants submitted that they had exhausted all domestic remedies. First, they submitted that paragraph 353 did not provide a remedy which they were required to exhaust, as the making of a fresh claim was a discretionary remedy and not an automatic right. Secondly, even if paragraph 353 did provide a remedy which they were required to exhaust, the applicants submitted that they were unable to make a fresh claim as the content of their claims had already been considered and they were not in possession of material which could be considered to be ‘significantly different’ to that previously considered. Thirdly, as the applicants had not been found to be credible, in practice any fresh claim would have had virtually no prospect of success.

The second applicant further submitted that he did not seek an order for reconsideration of the Tribunal's decision because he was advised both by his lawyer, a senior lawyer from the Refugee Legal Centre, and Counsel, a highly experienced asylum practitioner, that there were insufficient grounds on which to challenge the decision. The Court had always held that experienced counsel's opinion to the effect that a remedy had no prospect of success was enough to indicate that an appeal would not be successful (O'Reilly and Others v. Ireland, no. 54725/00, 29 July 2004 and H. v. the United Kingdom, 8 July 1987, Series A no. 120).

The Court recalls that the rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the Court for their acts before they have had an opportunity to put matters right through their own legal system. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time, namely, that the remedy was accessible, capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see T. v. the United Kingdom [GC], no. 24724/94, 16 December 1999, § 55). Article 35 must also be applied to reflect the practical realities of the applicant's position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (Hilal v. the United Kingdom (dec.), no. 45276/99, 8 February 2000).

The Court has consistently held that mere doubts as to the prospects of success of national remedies do not absolve an applicant from the obligation to exhaust those remedies (see, inter alia, Pellegrini v. Italy (dec.), no. 77363/01, 26 May 2005; MPP Golub v. Ukraine (dec.), no. 6778/05, 18 October 2005; and Milosevic v. the Netherlands (dec.), no. 77631/01, 19 March 2002). However, it has also on occasion found that where an applicant is advised by counsel that an appeal offers no prospects of success, that appeal does not constitute an effective remedy (see Selvanayagam v. the United Kingdom (dec.), no. 57981/00, 12 December 2002; see also H. v. the United Kingdom, cited above; and McFeeley and others v. the United Kingdom, no. 8317/78, Commission decision of 15 May 1980, Decisions and Reports (DR) 20, p. 44). Equally, an applicant cannot be regarded as having failed to exhaust domestic remedies if he or she can show, by providing relevant domestic case-law or any other suitable evidence, that an available remedy which he or she has not used was bound to fail (Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 156, ECHR 2003-VI; Salah Sheekh v. the Netherlands, no. 1948/04, §§ 121 et seq., ECHR 2007-… (extracts)).

The Court accepts that where there has been a significant change in either the applicant's circumstances or the conditions in his country of origin, making further submissions under paragraph 353 of the Immigration Rules could constitute an effective domestic remedy which an applicant would be required to exhaust. However, in the present case the Court recalls that after the applicants' complaints were considered by the Asylum and Immigration Tribunal, the Tribunal considered a number of other complaints by applicants challenging their removal to Mogadishu. Prior to the Country Guidance decision of AM & AM (Somalia), which was promulgated towards the end of 2008, the Tribunal had consistently held that the situation in Mogadishu, and in Somalia generally, was not sufficiently grave to place anyone being returned at risk of serious harm and that members of majority clans could still look to their clan for protection. As the first applicant's claim to be a member of a minority clan had not been believed and the second applicant had accepted that he was a member of a majority clan, the Court does not accept that there was a reasonable prospect that the Secretary of State for the Home Department would have accepted any further submissions by the applicants as amounting to fresh claims for asylum prior to the decision in AM & AM (armed conflict: risk categories) Somalia CG [2008] UKAIT 00091.

In AM & AM (Somalia) the Asylum and Immigration Tribunal found that the situation in Mogadishu had changed significantly and that it was no longer a safe place to live for the majority of its citizens. Nevertheless, it also found that it would be possible for persons from Mogadishu to relocate safely within Somalia. In view of this finding, the Court considers it likely that even if the applicants had made further representations following the decision in AM & AM (Somalia), and even if the Secretary of State had considered those representations to amount to a fresh claim for asylum, such a claim would not have been successful as the applicants would have been considered to have had an internal flight alternative within Somalia.

Consequently, in the circumstances of the present case, the Court does not consider that paragraph 353 of the Immigration Rules HC 396 (as amended) provided the applicants with an effective domestic remedy which offered reasonable prospects of success. It therefore rejects the Government's submission that the applicants failed to exhaust domestic remedies on account of the fact that they did not make further representations to the Secretary of State for the Home Department when the situation in Somalia worsened.

With regard to the Government's submission that the second applicant failed to exhaust domestic remedies as he did not apply for an order for reconsideration, the Court recalls that he was advised by a senior lawyer from the Refugee Legal Centre and by experienced counsel that such an application would have had no realistic prospect of success. The Court notes that both the lawyer and counsel advising the second applicant were senior and experienced specialists in the immigration and asylum fields. In these circumstances, the Court has no hesitation in concluding that it was ‘settled legal opinion’ that the applicant would not have succeeded in an application for reconsideration.

The Court therefore also rejects the Government's submission that the second applicant failed to exhaust an effective domestic remedy by failing to apply for reconsideration of the Tribunal's decision.

Finally, the Court recalls that the Government have also submitted that the applicants' complaints are manifestly ill-founded. The Court considers that this submission raises questions which are closely linked to the merits of the case. It will therefore deal with that submission in its examination of the merits below. It further notes that the application is not inadmissible on any other grounds. It must therefore be declared admissible.

It is settled case-law that Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-…; Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 34, § 67, Boujlifa v. France, judgment of 21 October 1997, Reports 1997-VI, p. 2264, § 42). The right to political asylum is also not contained in either the Convention or its Protocols (Salah Sheekh, cited above, § 135, with further authorities). However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country (Saadi v. Italy [GC], no. 37201/06, § 125, 28 February 2008). As the prohibition of torture and of inhuman or degrading treatment or punishment is absolute, irrespective of the victims conduct, the nature of the offence allegedly committed by the applicants is irrelevant for the purposes of Article 3 (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, § 79; and Saadi v. Italy, cited above, § 127). Consequently, the conduct of the applicants, however undesirable or dangerous, cannot be taken into account (Saadi v. Italy [GC], § 138).

The assessment whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires that the Court assess the conditions in the receiving country against the standards of Article 3 of the Convention (Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I). These standards imply that the ill-treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case (Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II). Owing to the absolute character of the right guaranteed, Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection (H.L.R. v. France, judgment of 29 April 1997, Reports 1997-III, § 40).

The assessment of the existence of a real risk must necessarily be a rigorous one (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, § 96; and Saadi v. Italy, cited above, § 128). It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005). Where such evidence is adduced, it is for the Government to dispel any doubts about it.

If the applicant has not yet been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Saadi v. Italy, cited above, § 133). A full and ex nunc assessment is called for as the situation in a country of destination may change in the course of time. Even though the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive and it is therefore necessary to take into account information that has come to light after the final decision taken by the domestic authorities (see Salah Sheekh, cited above, § 136).

The foregoing principles, and in particular the need to examine all the facts of the case, require that this assessment must focus on the foreseeable consequences of the removal of the applicant to the country of destination. This in turn must be considered in the light of the general situation there as well as the applicant's personal circumstances (Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, § 108). In this connection, and where it is relevant to do so, the Court will have regard to whether there is a general situation of violence existing in the country of destination.

In Vilvarajah v. the United Kingdom the Court appeared to suggest that a mere situation of general instability would only give rise to a breach of Article 3 of the Convention if there was evidence to demonstrate that the applicant's personal situation was worse than that of the generality of other members of his group (Vilvarajah v. the United Kingdom, cited above, § 111). However, in N.A. v. the United Kingdom the Court expressly considered its earlier decision in Vilvarajah v. the United Kingdom and concluded that it should not be interpreted so as to require an applicant to show the existence of special distinguishing features if he could otherwise show that the general situation of violence in the country of destination was of a sufficient level of intensity to create a real risk that any removal to that country would violate Article 3 of the Convention (N.A. v. the United Kingdom, cited above, §§ 115 – 116). To insist in such cases that the applicant show the existence of such special distinguishing features would render the protection offered by Article 3 illusory (N.A. v. the United Kingdom, cited above, § 116). Moreover, such a finding would call into question the absolute nature of Article 3, which prohibits in absolute terms torture and inhuman or degrading treatment or punishment.

Therefore, following NA v. the United Kingdom, the sole question for the Court to consider in an expulsion case is whether, in all the circumstances of the case before it, substantial grounds have been shown for believing that the person concerned, if returned, would face a real risk of being subjected to treatment contrary to Article 3 of the Convention. If the existence of such a risk is established, the applicant's removal would necessarily breach Article 3, regardless of whether the risk emanates from a general situation of violence, a personal characteristic of the applicant, or a combination of the two. However, it is clear that not every situation of general violence will give rise to such a risk. On the contrary, the Court has made it clear that a general situation of violence would only be of sufficient intensity to create such a risk ‘in the most extreme cases’ where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return (ibid., § 115).

Accordingly, in the present case the Court must examine whether substantial grounds have been shown for believing that the applicants, if deported, would face a real risk of being subjected to treatment contrary to Article 3. In doing so, it will first consider the general situation both in Mogadishu, which will be the point of their return, and in the remainder of southern and central Somalia before focusing on the foreseeable consequences of removal for each of the applicants. However, before it can begin its assessment of risk on return, it must address two preliminary issues which have arisen in the present case: first, the relationship between Article 3 of the Convention and article 15(c) of the Qualification Directive, and secondly, the weight to be attached to country reports which primarily rely on information provided by anonymous sources.

In conclusion, the Court considers that the situation of general violence in Mogadishu is sufficiently intense to enable it to conclude that any returnee would be at real risk of Article 3 ill-treatment solely on account of his presence there, unless it could be demonstrated that he was sufficiently well connected to powerful actors in the city to enable him to obtain protection (see paragraph 249, above).

Nevertheless, Article 3 does not preclude the Contracting States from placing reliance on the internal flight alternative provided that the returnee could travel to, gain admittance to and settle in the area in question without being exposed to a real risk of Article 3 ill-treatment. In this regard, the Court accepts that there may be parts of southern and central Somalia where a returnee would not necessarily be at real risk of Article 3 ill-treatment solely on account of the situation of general violence (see paragraph 270, above). However, in the context of Somalia, the Court considers that this could only apply if the applicant had close family connections in the area concerned, where he could effectively seek refuge. If he has no such connections, or if those connections are in an area which he could not safely reach, the Court considers that there is a likelihood that he would have to have recourse to either an IDP or refugee camp (see paragraph 266, above).

If the returnee's family connections are in a region which is under the control of al-Shabaab, or if it could not be accessed except through an al-Shabaab controlled area, the Court does not consider that he could relocate to this region without being exposed to a risk of ill-treatment unless it could be demonstrated that he had recent experience of living in Somalia and could therefore avoid coming to the attention of al-Shabaab (see paragraph 276, above).

Where it is reasonably likely that a returnee would find himself in an IDP camp, such as those in the Afgooye Corridor, or in a refugee camp, such as the Dadaab camps in Kenya, the Court considers that there would be a real risk that he would be exposed to treatment in breach of Article 3 on account of the humanitarian conditions there (see paragraph 295, above).