5.5 In relation to Somalia, there is abundant
evidence that the clans, at least since 1991, have, in
certain regions, fulfilled the role, or exercised the
semblance, of an authority that is comparable to
government authority. These clans, in relation to
their regions, have prescribed their own laws and
law enforcement mechanisms and have provided
their own education, health and taxation systems.
The report of the independent expert of the
Commission on Human Rights illustrates that States
and international organizations have accepted that
these activities are comparable to governmental
authorities and that “[t]he international community is
still negotiating with the warring factions, who
ironically serve as the interlocutors of the Somali
people with the outside world.”9
stating that, as an elder of the Shikal clan, his father
had been prosecuted by the Hawiye clan, especially
since he had categorically refused to provide money
and manpower for the war. Even before the outbreak
of the war there had been attempts on the author’s
father’s life by the Hawiye clan. The family was told
by the Hawiye that they would suffer the
consequences of their refusal to provide support to
the clan, once the Hawiye came into power in
Mogadishu. The author states that he was staying at
a friend’s house when the violence broke out in
December 1990 and he learnt that his father had
been killed during an attack by the Hawiye clan.
Only hours after his father’s death, the Hawiye
planted and detonated a bomb under the family
home, killing one of the author’s brothers. The
author’s mother, other brothers and his sisters had
already fled the house.
5.6 Counsel notes that the State party does not
wish to contest admissibility on the basis of the nonexhaustion of domestic remedies, but nevertheless
wishes
to
emphasize
that
the
author’s
communication of 17 November 1998 was submitted
in good faith, all domestic remedies available to the
author having been exhausted. The subsequent
application by the author for special leave to appeal,
which is currently pending before the Full Bench of
the High Court of Australia, does not provide a basis
for injunctive relief to prevent the expulsion of the
author. Further, following an intervention by
Amnesty International in the author’s case, the
Minister for Immigration and Multicultural Affairs
stated that “[a]s an unlawful non-citizen who had
exhausted all legal avenues to remain in Australia,
my Department was required under law to remove
[the author] as soon as reasonably practicable.”
5.9 The author also states that, together with the
remaining family members, he escaped to the town
of Medina, where he stayed during 1991. The
Hawiye clan attacked Medina on a number of
occasions and killed Shikal members in brutal and
degrading ways. The author states that hot oil was
poured over their heads, scalding their bodies.
Sometimes, when they received warnings about
Hawiye raids, the family would flee Medina for
short periods of time. On one occasion, upon
returning after such a flight, the author learnt that the
Hawiye militia had searched the town with a list of
names of people they were looking for, including the
author and his family. After one year of constant fear
the family fled to Afgoi. On the day of the flight, the
Hawiye attacked again and the author’s sister was
raped for the second time by a member of the militia.
In December 1992, the author heard that the United
Nations was sending troops to Somalia and that the
family would be protected if they returned to
Mogadishu. However, the author and his family only
returned as far as Medina, since they heard that the
situation in Mogadishu had in fact not changed.
5.7 As to the merits of the communication, the
author must establish grounds that go beyond mere
“theory or suspicion”10 that he will be in danger of
being tortured. As the primary object of the
Convention is to provide safeguards against torture,
it is submitted that the author is not required to prove
all of his claims11 and that a “benefit of the doubt”
principle may be applied. There is sufficient
evidence that the author faces personal risk of being
subjected to torture upon his return owing to his
membership of the Shikal clan and his belonging to a
particular family.
5.10 After another year in Medina, the family once
again fled to Afgoi and from there to Ugunji, where
they stayed for two years in relative peace before the
Hawiye arrived in the area and enslaved the
members of minority clans and peasants living there,
including the author. The indigenous villagers also
had pale skin, therefore the militia never questioned
the author and his family about their background.
However, when the family learnt that Hawiye elders
were coming to the village they once again fled,
knowing that they would be recognized. In the
course of the following months the author went back
and forth between Medina and Afgoi. Finally, the
family managed to leave the country by truck to
Kenya.
5.8 Counsel contests the State party’s argument
that the author had in fact been able to live in
Somalia since the outbreak of the war in “relative
safety” and submits an affidavit from the author
9
Report of the independent expert of the Commission on
Human Rights, Ms. Mona Rishmawi, on the situation of
human rights in Somalia (E/CN.4/1999/103), para. 154.
10
Communication N° 101/1997, Halil Haydin v. Sweden,
16 December 1998, para. 6.5.
11
Communication N° 34/1995, Seid Mortesa Aemei v.
Switzerland, para. 9.6.
5.11 In addition to the grounds previously
mentioned, the risk to the author is increased by the
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