6.4 The Committee must decide whether the
forced return of the author to Somalia would violate
the State party’s obligation, under article 3,
paragraph 1, of the Convention, not to expel or
return (refouler) an individual to another State where
there are substantial grounds for believing that he
would be in danger of being subjected to torture. In
order to reach its conclusion the Committee must
take into account all relevant considerations,
including the existence in the State concerned of a
consistent pattern of gross, flagrant or mass
violations of human rights. The aim, however, is to
determine whether the individual concerned would
personally risk torture in the country to which he or
she would return. It follows that the existence of a
consistent pattern of gross, flagrant or mass
violations of human rights in a country does not as
such constitute sufficient grounds for determining
whether the particular person would be in danger of
being subjected to torture upon his return to that
country; additional grounds must be adduced to
show that the individual concerned would be
personally at risk. Similarly, the absence of a
consistent pattern of gross violations of human rights
does not mean that a person cannot be considered to
be in danger of being subjected to torture in his or
her specific circumstances.
6.6 The State party does not dispute the fact that
gross, flagrant or mass violations of human rights
have been committed in Somalia. Furthermore, the
independent expert on the situation of human rights
in Somalia, appointed by the Commission on Human
Rights, described in her latest report13 the severity of
those violations, the situation of chaos prevailing in
the country, the importance of clan identity and the
vulnerability of small, unarmed clans such as the
Shikal, the clan to which the author belongs.
6.7 The Committee further notes, on the basis of
the information before it, that the area of Mogadishu
where the Shikal mainly reside, and where the author
is likely to reside if he ever reaches Mogadishu, is
under the effective control of the Hawiye clan,
which
has
established
quasi-governmental
institutions and provides a number of public services.
Furthermore, reliable sources emphasize that there is
no public or informal agreement of protection
between the Hawiye and the Shikal clans and that
the Shikal remain at the mercy of the armed factions.
6.8 In addition to the above, the Committee
considers that two factors support the author’s case
that he is particularly vulnerable to the kind of acts
referred to in article 1 of the Convention. First, the
State party has not denied the veracity of the
author’s claims that his family was particularly
targeted in the past by the Hawiye clan, as a result of
which his father and brother were executed, his sister
raped and the rest of the family was forced to flee
and constantly move from one part of the country to
another in order to hide. Second, his case has
received wide publicity and, therefore, if returned to
Somalia the author could be accused of damaging
the reputation of the Hawiye.
6.5 The Committee does not share the State
party’s view that the Convention is not applicable in
the present case since, according to the State party,
the acts of torture the author fears he would be
subjected to in Somalia would not fall within the
definition of torture set out in article 1 (i.e., pain or
suffering inflicted by or at the instigation of or with
the consent or acquiescence of a public official or
other person acting in an official capacity, in this
instance for discriminatory purposes). The
Committee notes that for a number of years Somalia
has been without a central government, that the
international community negotiates with the warring
factions and that some of the factions operating in
Mogadishu have set up quasi-governmental
institutions and are negotiating the establishment of
a common administration. It follows then that, de
facto, those factions exercise certain prerogatives
that are comparable to those normally exercised by
legitimate governments. Accordingly, the members
of those factions can fall, for the purposes of the
application of the Convention, within the phrase
“public officials or other persons acting in an official
capacity” contained in article 1.
6.9 In the light of the above the Committee
considers that substantial grounds exist for believing
that the author would be in danger of being subjected
to torture if returned to Somalia.
7.
Accordingly, the Committee is of the view
that, in the prevailing circumstances, the State party
has an obligation, in accordance with article 3 of the
Convention, to refrain from forcibly returning the
author to Somalia or to any other country where he
runs a risk of being expelled or returned to Somalia.
8.
Pursuant to rule 111, paragraph 5, of its rules
of procedure, the Committee would wish to receive,
within 90 days, information on any relevant
measures taken by the State party in accordance with
the Committee’s present Views.
13
77
E/CN.4/1999/103.
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