DISSENTING OPINION OF JUDGE POWER-FORDE JOINED BY JUDGE ZUPANČIČ

This case marks a significant departure from the Court ’ s relatively recent judgment of Sufi and Elmi v. the United Kingdom. [1] In that case, the Court reiterated its view that Mogadishu was not “ a safe place safe for the vast majority of civilians” ( Sufi § 291). The Court, in this case, has decided that the return of this applicant to Mogadishu would not violate Article 3 of the Convention . S omewhat unusually, it has come to this view without an assessment of the risk of the applicant ’ s return to Mogadishu having been conducted at domestic level. When his asylum claim was decided “it was the position of the Swedish authorities that no one could be deported to Mogadishu” (§ 80) and the domestic decisions in his case were based on a proposed deportation to Somaliland. The majority disagrees with the national authorities ’ position on the applicant ’ s return to Somaliland (§ 85) and conducts, de novo , an assessment of the risk to the applicant if he were to end up in Mogadishu, noting only that since the time when his asylum claim was examined, the Migration Board had changed its general stance on the security situation in Mogadishu.

My inability to join the majority in its finding of no violation is based upon, what I consider to be, the deficiency in its analysis and the prematurity of its conclusions regarding the general situation in Mogadishu. In finding that the level of violence in Mogadishu posed a real risk to anyone in the capital, the Court in Sufi had regard to four factors: ( i) the general level of violence; (ii) the number of civilian casualties; (iii) the substantial number of internally displaced persons; and (iv) the unpredictable and widespread nature of the conflict ( Sufi § 248).

Since the protection against the treatment prohibited by Article 3 is absolute and the values in issue are fundamental, the Court has repeatedly confirmed that the assessment of the existence of a risk must be a “rigorous” one. [2] To my mind, there is a deficiency in the majority ’ s approach in this regard which can be seen , for example, in its failure to examine a number of important factors to which the Court had regard in Sufi. In departing from the Court ’ s earlier finding , the majority has considere d, briefly, only the general level of violence and the numbers of civilian casualties in Mogadishu ( §§ 88, 89) . It has failed to include in its assessment the reality of massive internal displacement of persons and the unpredictability of the still volatile situation in the Somali capital.

I agree with the majority that the general level of violence in Mogadishu, according to some sources, appears to have decreased somewhat in recent times. However, in assessing the risk one must factor in that al-Shabaab remains present in the city and continues to perform attacks, including, high profile suicide bombings that affect ordinary citizens. [3] The majority also relies upon sources that indicate ‘ that the number of civilian casual tie s has decreased ’ in Mogadishu. However, those same sources (cited in § 34 of the judgment) confirm that ‘ it is very difficult, if not impossible, to present exact figures as there is often no reporting ’ of the number of civilian casualties. Many wounded never attend hospital for treatment and civilian casualties remain a daily occurrence. In its 2013 World Report, Human Rights Watch noted that civilians in Mogadishu continued to be killed and wounded by crossfire, particularly, during in-fighting between Transitional Federal Government (TFG) forces over control of roadblocks and by improvised explosive devices and grenade attacks primarily by al-Shabaab fighters.

In conducting its assessment of the Article 3 risk to the applicant upon his return to Mogadishu , the majority has had no regard to the substantial number of displaced persons living in the Somali capital. In Sufi, the Court noted that 179,000 people had been displaced in Mogadishu during the first quarter of 2010 and that a further 75,000 people had been displaced during the second quarter ( Sufi § 245) . Since then, that number has risen to 360,000 as masses of internally displaced persons (IDPs) live in makeshift tents in crowded conditions in the city. [4] Human Rights Watch further confirms that the diversion of humanitarian aid within Mogadishu by government forces, allied militia, officials and others, and insecurity at food distribution sites have significantly limited the access that displaced persons have to assistance. It also found that the TFG forces and allied militias committed a range of abuses against internally displaced persons in Mogadishu, including rape, looting of food aid from camps and arbitrary arrests and detention. [5]

In considering the dire humanitarian conditions in Somalia, the Court in Sufi confirmed that the approach taken in M.S.S. v Belgium and Greece [6] was the correct one. This approach requires the Court “to have regard to an applicant ’ s ability to cater for his most basic needs, such as food, hygiene and shelter, his vulnerability to ill-treatment and the prospect of his situation improving within a reasonable time” ( Sufi § 283). In failing to have regard to the hundreds of thousands of displaced persons in Mogadishu and in omitting to consider the dire humanitarian conditions and abuses occurring with camps, the majority ’ s assessment of the Article 3 risk faced by the applicant if returned to Mogadishu is flawed.

Coupled with that, the unpredictable nature of the conflict in Mogadishu receives little c onsideration by the majority. The volatility and instability of the situation is demonstrated in the fact that whilst a l-Shabaab lost ground in 2012, targeted killings of civilians increased during the same year in areas controlled by the Somalia authorities. [7] Human Rights Watch confirmed that government affiliated forces and allied militia committed targeted killings and summary executions in towns recently vacated by al ‑ Shabaab and that they arbitrarily detained civilians, particularly men, during security operations. The situation in the region remains volatile and can change from day to day. In view of the objective situation of instability and violence, the UNHCR in 2013 has continued to reinforce its advocacy for protection against refoulement. [8]

I agree that there are signs that Somalia is emerging from a state of emergency to a state of fragile recovery. However , given the devastating human rights abuses throughout the twenty year civil war and the ongoing human rights abuses under the current regime, it is premature, to my mind, to conclude that the situation has changed so fundamentally in the two years since the Court delivered its judgment in Sufi that Mogadishu can no w be considered as a place to which failed asylum seekers may be returned safely and without posing a real risk under Article 3 of the Convention.

In a recent visit by the United Nations High Commissioner for Refugees to Mogadishu, it was noted that a small number of Somalis have spontaneously taken the decision to move back to Mogadishu and to other areas under government control. This, it was noted, was a moment of hope for the people of Somalia. However, there is a world of a difference between a small number of people choosing, voluntarily, to assume the risks involved in returning to their war torn homes and the forcible expulsion by a Convention State of vulnerable people to a still volatile conflict zone with dire humanitarian deficiencies . In view of the objective situation in Somalia, the UNHCR continues to advocate that returns should be, first and foremost, voluntary. The Commissioner concluded that a t this time “ the vast majority of Somalis in exile are still in need of asylum ” as conditions are not yet safe for a large-scale repatriation. [9]

I am unable to share the majority ’ s confidence that the situation in Somalia today is so different from the one that prevailed when the Court delivered its judgment in Sufi and Elmi v. the United Kingdom such as would warrant a departure from the Court ’ s findings in that case.

[1] Sufi and Elmi v. the United Kingdom , nos. 8319/07 and 11449/07 , 28 June 2011

[2] Chahal v United Kingdom judgment of 15 November 1996, Reports 1996-V, § 96

[3] Human Rights Watch, 2013 World Report, Somalia.

[4] UN Office for the Coordination of Humanitarian Affairs, OCHA Mogadishu Head Office, 11 April 2013

[5] Human Rights Watch, 2013 World Report, Somalia

[6] MSS v Belgium and Greece [GC], no. 30696/09, 21 January, 2011

[7] Human Rights Watch, 2013 World Report, Somalia

[8] UNHCR 2013 Country Operations Profile , Somalia

[9] UNHCR, 9 July 2013 , Visit of UNHCR to Mogadishu