Submission to Committee on Rights of Child Review of Somalia

We write in advance of the 90th session of the Committee on Rights of the Child regarding Somalia's compliance with the Convention on the Rights of the Child. This submission includes information on teenage pregnancy and child marriage, sexual violence against girls, airstrikes killing and maiming children, detention of children, the recruitment of child soldiers, and protecting education from attack during armed conflict.

Sexual Violence against Girls (articles 3, 19 and 24)

While the full scope of sexual violence in Somalia remains unknown due to underreporting and absence of data, it is clear that internally displaced girls are particularly vulnerable to rape by armed men. This includes Somali government soldiers and militia members as well as the Al-Shabab armed group.

In 2020, the UN documented over 100 cases of conflict-related sexual violence, mostly against girls.[1] Since 2019, media outlets have repeatedly reported on several violent rapes, including gang rapes of children.

During its 2016 Universal Periodic Review (UPR), the government committed to strengthening the legal framework to tackle sexual violence.[2] A very progressive federal Sexual Offenses Bill was submitted before parliament in 2018 but never debated.[3] Instead, in August 2020, the speaker of parliament in Mogadishu put forward a highly controversial new Sexual Intercourse Related Crimes Bill, which if passed would violate Somalia's international and regional legal obligations.[4] The bill would allow for child marriage by defining a child based on physical maturity instead of age, provide inadequate penalties for forced marriage, exclude a broad range of sexual offenses, and include weak procedural protections for survivors.

During the 2021 UPR, Somalia reported that once the drafting of the new Penal Code was concluded, the Ministry of Women & Human Rights Development would conduct a human rights review of the code. The draft of the new Penal Code is reportedly expected to be ready in 2022.[5]

Puntland was the first region to pass a sexual offenses law that criminalizes various sexual offenses, establishes complaints procedures, and strengthens support to survivors. But it also contains problematic provisions including defining a child as 15 years old and younger. It also includes the death penalty for aggravated cases of rape. Implementation of the law has been limited.[6] Judgments seen by Human Rights Watch suggest that the outdated penal code continues to be used in sexual offense cases.[7] Our research also suggests that procedures are not being followed to safeguard the best interests of the child.

Human Rights Watch encourages the Committee to ask the government:

• What is being done to address the underreporting and absence of data on sexual violence in Somalia?
• What measures are in place to ensure girls are protected from sexual violence and rape by armed men, including Somali government soldiers, militia members and Al-Shabab?

Human Rights Watch encourages the Committee to recommend to the government:

• Reject the Sexual Intercourse Related Crimes bill and either reintroduce for debate the federal sexual offenses bill or enact another law that prohibits all forms of violence against women and girls and aligns with international law. Somalia should consider a law that encompasses the prevention, protection, care, treatment, and support for survivors, and provides remedies for survivors, as well as adequate investigations of suspects and punishment of convicted perpetrators; address potential conflicts between customary or religious law and the formal justice system so that cases are addressed to respect the human rights of the survivor and are in accordance with gender equality standards. Somalia should carry out a national plan or strategy for a comprehensive and coordinated approach to implement the legislation.

• Finalize the review of the penal code to further eliminate gaps in the protection of women and girls against acts of sexual and gender-based violence.
• Ensure legislation, including Puntland's sexual offenses law, is consistent with international legal standards.
• Put in place child justice procedures in sexual violence prosecutions.
• Provide adequate and comprehensive services for survivors of sexual and gender-based violence including medical treatment, counselling support, and financial assistance.

Teenage Pregnancy and Child Marriage: Barriers to the Right to Education (articles 2, 19, 28, 29)

The Federal Republic of Somalia has a consistent gender gap in enrollment rates across grades in primary and secondary school.[8] In the 2015-2016 academic year, only 39 percent of secondary school age girls were enrolled in secondary schools across Somalia.[9]

Lack of access to education is both a cause and a consequence of child marriage and pregnancy. Recent data shows that 45 percent of girls in Somalia are married by age 18.[10] Somalia also continues to face high rates of teenage pregnancy according to UN Population Fund data: 118 per 1000 girls and women ages 15-19 gave birth from 2004-2020.[11] The Covid-19 pandemic, and corresponding lockdowns, increased the risk of child marriage in Somalia by increasing barriers to education.[12]

Child marriage and pregnancy often interrupt girls' education.[13] Researchers have noted that child marriage is a large contributor to girls dropping out from education and leaving school prematurely in Somaliland and Puntland.[14]

Girls who are pregnant outside marriage may face additional pressures to drop out of school and may be forced to get married. Under the penal code, adultery is criminalized both for the married party and the accomplice.[15] Furthermore, UN reporting indicates that some judges in areas in southern Somalia impose Sharia, or Islamic law, rather than the country's penal code. Reports show that some adolescents have been prosecuted under these customary practices and Sharia law.[16]

Cases of sexual and gender-based violence are often resolved under traditional or customary legal mechanisms through settlements or forced marriages.[17] Perpetrators of violence, including rape, may be able to avoid prosecution or punishment by marrying their victim, a resolution sometimes seen as "preserving honour."[18] These dispositions can have a negative impact on victims, including an increased risk of violence and abuse throughout their lives, and strip victims of their legal rights.[19]

Child Marriage

In Somalia, child marriage rates are driven by poverty and economic inequality, lack of access to education, discriminatory gender norms, and harmful practices.[20] Child marriage often interrupts girls' education or denies them access altogether.[21] While school administrators and teachers should play a role in monitoring and encouraging married girls to remain in school, informal or unclear policies often leads to discretionary enforcement of the right to education.[22] Married students are often stigmatized, and encouraged to drop out from school.[23] Once a married student drops out, odds of re-entry are reduced due to financial barriers, new household responsibilities, and complex or indeterminate re-enrollment procedures.[24]

Existing laws in Somalia do not adequately protect girls against child marriage. While the minimum age for marriage is set to 18, there are exceptions permitting girls to legally marry at an earlier age with consent from a parent or guardian.[25] The 2017-2019 National Development Plan stated the government's intention of eliminating child marriage.[26] However, pending legal reforms, the government has sought to further reduce the age of marriage, including through legislative efforts like the controversial Sexual Intercourse Related Crimes Bill, which would legalize marriage for children who reach puberty, regardless of their age.[27] The status of this bill remained unknown at time of writing. Somalia should set the minimum age of marriage for girls and boys at 18 with no exceptions.

Barriers to Education

Somalia is among 23 countries that lack a policy or law to protect pregnant girls' and adolescent mothers' right to education, based on research by Human Rights Watch across all African Union member countries.[28] The country's 2018-2020 Education Sector Strategy identifies priorities and objectives to address school drop-outs and promote secondary school retention, especially for girls, but does not specify how the government intends to practically address the challenges faced by students who are pregnant, are adolescent mothers, or are married.[29]

Human Rights Watch has found that a lack of positive protections often leads to irregular enforcement of compulsory education at the school level, where school officials can decide what happens with a pregnant girl's education.[30] Human Rights Watch believes that Somalia should take affirmative measures to guarantee that girls who get pregnant outside of marriage are protected from prosecution, including through customary and Sharia courts. Girls should be supported to stay in school, and students who are mothers should resume their education after giving birth.

An example of such measures would be to adopt a policy that affirms the right to education of pregnant students and adolescent parents, and to expedite regulations that facilitate a return to primary and secondary school. Human rights-compliant policies adopted by governments should include provisions that stipulate that students who are pregnant or parenting are allowed to remain in school for as long as they choose, are able to resume their education free from complex processes for withdrawal and re-entry, can complete their education in school environments free from stigma and discrimination, and receive adequate social and financial support.[31]

Human Rights Watch recommends that the Committee asks the government of Somalia:

• What steps is the government taking to ensure girls who become pregnant or get married are not asked to leave, or be expelled, from school?
• What steps is the government taking to protect girls from harsh punishments applied in cases of pregnancy outside marriage?
• What steps is the government taking to tackle sexual violence against girls, and ensure girls who are pregnant as a result of rape have access to appropriate health services, including emergency contraception?
• How does the threat of criminal punishment for adultery or sexual relations outside of marriage pressure or force pregnant girls into child marriage?
• What steps are being taken to set the minimum age of marriage to 18, without exception?
• How is the government working to reduce, and eventually eliminate, the practice of child marriage?
• What steps is the government taking to ensure girls at risk of dropping out are socially and financially supported?
• What steps is the government taking to tackle barriers that impede the retention of pregnant girls and adolescent mothers in school, including school fees and indirect costs?
• What policy or regulatory measures will the government adopt to fully support pregnant students and adolescent parents to return and remain in school, and ensure school compliance with government policies?
• What special accommodations are provided for young mothers at school, such as child care, time and facilities for breast-feeding or flexibility when babies are ill?
• What programs are in place to ensure access to nurseries or early childhood centers close to schools?
• What school-based counselling programs are provided for pregnant girls and adolescent mothers?

Human Rights Watch encourages the Committee to make the following recommendations:

• Adopt a human rights compliant policy that protects the right to education for pregnant girls and adolescent mothers; and monitor schools' compliance with the policy;
• Guarantee that students who are pregnant, mothers and/or married are able to continue their education in public secondary schools after giving birth, without impediment or burdensome procedures, and ensure schools are free from stigma and discrimination;
• Address financial, procedural, and systemic barriers that inhibit adolescent mothers from continuing their education;
• Ensure that the controversial Sexual Intercourse Related Crimes Bill is not reinstated before parliament, and institute protections that set the minimum age of marriage to 18 for both girls and boys, with no exceptions;
• Set the minimum age of marriage at 18 with no exceptions.
• Create a national action plan to combat child marriage, with input from women's and children's rights groups; coordinate efforts among all relevant ministries; and ensure sufficient resources to implement the plan.

Airstrikes Killing and Maiming Children (articles 6 and 38)

In March and February 2020, United States airstrikes in Somalia killed seven civilians, including one child, and injured another two. After each incident the US Africa Command (AFRICOM) released a statement acknowledging that US forces carried out a strike that day.[32]

On the evening of February 2, 2020, at least one airstrike hit a home in Jilib, a town in the Middle Juba region, instantly killing a woman possibly between ages 18 and 20 and injuring her two sisters, both children, and her grandmother. One of the girls, about 14, and the grandmother, about 70, sustained serious injuries.

On March 10, 2020, near the town of Janaale in Lower Shabelle, at least one airstrike hit a private minibus killing at least six passengers, including a 13-year-old boy, who were on their way home to Mogadishu and nearby Elasha Biyaha. A relative of the 13-year-old, who visited the scene the evening of the strike, said he found the boy's body "and another body that you could see was human, but the other bodies were completely burned, just meat."

Human Rights Watch found no evidence of a military target involving the Islamist armed group Al-Shabab in either airstrike. Neither AFRICOM nor the Somali government is known to have contacted family members to investigate the attacks or assess their claims for redress.[33]

Human Rights Watch encourages the Committee to recommend to the government:

• Promptly and transparently investigate allegations of laws-of-war violations and publicize findings and any disciplinary actions.
• Strengthen efforts to communicate with relatives of civilians killed or injured in military operations. Set up a mechanism to provide safe and accessible channels for families to report allegations of civilian harm, including through members of parliament, clan representatives, or an identified government ministry.
• Establish a secure toll number for families who do not have access to the internet and cannot or do not want to present their allegations via a Somali government representative but wish to make their allegations in Somali.

Protection of Education During Armed Conflict (article 28)

It is estimated that there are 3 million children in need of education assistance in Somalia. Out of the approximately 6 million school-aged children in Somalia, only an estimated 1.8 million children (45 percent of whom are girls) are enrolled in schools. An estimated 4.2 million school-aged children are out of school with the majority of these being in south and central regions of Somalia.[34]

In 2020, the UN verified 53 attacks on schools attributed to Al-Shabab, the Somali Police Force, and clan militia.[35]

The Safe Schools Declaration is an inter-governmental political commitment that provides countries the opportunity to express political support for the protection of students, teachers, and schools during times of armed conflict; the importance of the continuation of education during armed conflict; and the implementation of the Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict.[36] Somalia endorsed the Safe Schools Declaration in December 2015.

In July 2017, in the context of implementing the Declaration, the African Union Mission to Somalia (AMISOM) ended their military base on the Somalia National University campus in Dharkenley district, west of Mogadishu, and handed a number of educational buildings back to the authorities, rehabilitating them first, and working with partners to ensure the grounds were clear of explosive remnants.[37]

In October 2020, the African Committee of Experts on the Rights and Welfare of the Child issued a general comment on children and armed conflict in Africa, in which they stated that "all State Parties' should either ban the use of schools for military purposes, or, at a minimum, enact concrete measures to deter the use of schools for military purposes in accordance with the Safe Schools Declaration's Guidelines on Protecting Schools and Universities from Military Use during Armed Conflict, including through their legislation, doctrine, military manuals, rules of engagement, operational orders, and other means of dissemination to encourage appropriate practice throughout the chain of command."[38] In January 2021, the African Union began requiring countries contributing troops to its peace operations to "ensure that schools are not attacked and used for military purposes."

Human Rights Watch encourages the Committee to ask the government:

• What other steps has Somalia taken to implement the commitments in the Safe Schools Declaration?
• Are explicit protections for schools or universities from military use included in any policies, rules, or trainings for Somalia's armed forces?

Human Rights Watch encourages the Committee to:

• Congratulate Somalia for endorsing the Safe Schools Declaration.
• Recommend that the government of Somalia implement the commitments of the Safe Schools Declaration, and share any good practices with other countries in the African Union.

Detention of Children (article 37)

Human Rights Watch has found that between 2015 and 2018, authorities across Somalia had detained hundreds of boys suspected of joining or supporting Al-Shabab without considering such detention as a measure of last resort, nor ensuring that it was for the shortest time possible.[39]

Security forces, notably the National Intelligence and Security Agency (NISA) in Mogadishu and Puntland's Intelligence Agency (PIA) in Bosasso, have subjected children in their custody to threats, ill-treatment, forced confessions, and beatings, at times amounting to torture. Boys and adults were detained together in NISA's Mogadishu detention facilities in dire conditions.

In 2018, Human Rights Watch found that while prosecutions and imprisonment of children on security charges in Somalia are not widespread, dozens of children have been tried, usually as adults, for Al-Shabab-related crimes in military courts since 2015. Basic due process procedures, including the right to present a defense and the prohibition on the use of coerced evidence, have been regularly flouted. Children as young as 14 have been sentenced to serve prison terms ranging from six years to life imprisonment.[40] The UN Security Council's Panel of Experts on Somalia found that the military court in Puntland tried and sentenced four children in 2018.[41] The federal government drafted but failed to pass a children rights bill.[42]

Death Penalty

In October 2020, six teenage boys were arrested in Galkayo, in the Mudug region of Puntland state in Somalia, for alleged involvement with armed groups. Four of the boys were 15 at the time of the arrest. They were sentenced by a military court for involvement with armed groups.

On January 31, 2022, the military court in Galkayo handed down the death penalty for four of the teenagers, then ages 16 to 18, while the two others, aged 16, were sentenced to 20 and 30-years imprisonment, respectively.[43]

Human Rights Watch encourages the Committee to ask the government:

• What steps are being taken to deter the different forces involved in the conflict from committing serious abuses against children, including killings, maiming, and the recruitment and use of child soldiers?

Human Rights Watch encourages the Committee to recommend to the government:

• Establish a child justice system in Somalia consistent with international child right standards. This should involve assuring adequate legal representation and implementing child justice principles that are directed toward the child's diversion, rehabilitation, and reintegration into their families and community.
• Ensure legislation, including the penal code, is consistent with international law and child justice standards, including with regard to the definition of a child as anyone under the age of 18.
• Explicitly exclude children from the jurisdiction of military courts.
• End the detention and prosecution of children for alleged involvement with armed groups without evidence of a further criminal offense.

Recruitment of Child Soldiers (article 38)

Different forces involved in the current conflict in Somalia, including Al-Shabab, the Somali National Army, and the Somali Police Force, have committed abuses against children, including the recruitment and use of child soldiers.[44]

In 2021, the UN documented the recruitment and use of 1,716 children in Somalia including by Al-Shabab, government security forces, including the Somali Police Force, the Somali National Army and the National Intelligence and Security Agency. Children were used in support roles or in combat.[45]

Al-Shabab is known to aggressively recruit children and has retaliated against communities that refuse to hand over children.[46] While the federal government reasserted its commitment to implementing the 2012 action plan to end and prevent the recruitment of children, the UN found that national and regional forces continued to recruit and use children.[47]

Human Rights Watch encourages the Committee to recommend to the government:

• Continue to work towards establishing rigorous and systematic screening procedures to ensure that no one under the age of 18 is recruited into the armed forces.