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July 26, 2013 Ms.

Fatou Bensouda Prosecutor International Criminal Court Post Office Box 19519 2500 CM, The Hague The Netherlands Re: Communication pursuant to Article 15 of the Rome Statute requesting the investigation and prosecution of high-level Kenyan officials for war crimes and crimes against humanity that have been committed in the Jubbaland region of Somalia. Dear Ms. Bensouda, It is with grave concern that we write to you on behalf of Somali Rights, an organization dedicated to the defense of human rights in the Horn of Africa. We urge your office to initiate an investigation and prosecution of high-level Kenyan officials for the war crimes and crimes against humanity that have been carried out in the Jubbaland region of Somalia in recent months, in accordance with the principles of direct and superior responsibility as laid out in Articles 25 and 28 of the Rome Statute. Such is the gravity of the humanitarian crisis in Jubbaland, and such is the extent of the enormities that have been committed by the Kenya Defence Force (KDF) and affiliated militants, that the International Criminal Court has become an appropriate, and indeed a necessary, forum for ensuring accountability for these grievous human rights violations. It is for this reason that we are providing you with this preliminary communication, with a more detailed complaint to follow posthaste. I. Somali Rights is firmly committed to assisting the Office of the Prosecutor in its preliminary examination, investigation, and prosecution.

The undersigned counsel works alongside and represents Somali Rights, a non-profit organization with a worldwide membership that was formed in order to counter human rights abuses taking place in southern Somalia. Its mission is to advocate on behalf of vulnerable individuals in the threatened pastoral communities, villages, and cities of the ! 1 of 7

region. Its members, be they Somali, Somali diasporan, or concerned outside observers, are all mindful of the pressing need to bring human rights offenders to justice, and will spare no expense of time or energy in aiding the Office of the Prosecutor with its preliminary examination, its investigation, and its prosecution. Somali Rights is in a unique position to investigate human rights abuses in the Horn of Africa, to collect eyewitness and survivor testimony, to assemble expert opinions, and to furnish the type of evidence of widespread violations that could prove invaluable in the global fight against international criminal impunity. Somali Rights members have been hard at work cataloguing human rights violations in the earnest hope that their work will prove of some value in holding malfeasors culpable, so that these types of crimes can be combated in a civilized, responsible, and forward-thinking manner.1 Recalling that it is within your power to initiate an investigation proprio motu under Article 15 of the Rome Statute, Somali Rights is willing, able, and determined to assist the Office of the Prosecutor in the process of establishing that a reasonable basis exists upon which to proceed with an investigation into the matter at hand. An extensive complaint is being prepared, one which will detail the background to and nature of the war crimes and crimes against humanity that have recently been committed by the KDF and their allied militant groups. Given the current situation on the ground, however, a preliminary communication was deemed appropriate, the better to alert your office to the depth and breadth of this humanitarian and moral catastrophe. II. War crimes and crimes against humanity have been committed, and continue to be committed, by the Kenya Defence Force and its allies in the regions of Lower Jubba, Middle Jubba, and Gedo.

On September 28, 2012, combined Somali and Kenyan military forces launched Operation Sledge Hammer, an amphibious assault on the port city of Kismayo designed to oust Al-Shabaab militants from their last major stronghold. Colonel Cyrus Oguna, a spokesman for the Kenyan military, described the operation as delicate and meticulously planned.2 While the planning of the operation may have been meticulous, its aftermath has proven anything but delicate. Instead, Kenyas actions as part of the African Union Mission in Somalia (AMISOM) have engendered widespread violations of international human rights law.

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For more information on the situation in Jubbaland, please visit the website of Somali Rights, http://www.somalirights.com, where crucial information gathered by members from all across the globe is available for perusal. 2 Clar Ni Chonghaile, Kenyan troops launch beach assault on Somali city of Kismayo, The Guardian (September 28, 2012), available at http://www.guardian.co.uk/world/2012/sep/28/kenyan-soldiers-capture-kismayo-somalia. ! 2 of 7

In doing so, Kenya has flouted the will of the United Nations Security Council, which on March 6, 2013 unanimously adopted a resolution that condemns all attacks against civilians in Somalia, calls for the immediate cessation of all acts of violence, including sexual and gender based violence, or abuses committed against civilians, including women and children, and humanitarian personnel in violation of international humanitarian law and human rights law, stresses the responsibility of all parties in Somalia to comply with their obligations to protect the civilian population from the effects of hostilities, in particular by avoiding any indiscriminate attacks or excessive use of force, and underscores the need to end impunity, uphold human rights and hold those who commit crimes accountable.3 A prcis of the events that transpired in subsequent months provides a disturbing indication of the extent to which these unequivocal expectations have not been met. Between June 28th and 30th of 2013, the KDF notoriously caused an outbreak of violence in the port city of Kismayo, having backed one Somali faction against others, arrested a senior Somali government army officer and used heavy weapons in areas containing civilians.4 Some 71 Somalis lost their lives, and another 300 were wounded. This was not an isolated incident. As far back as October of 2011, Kenyan fighters were bombing camps for internally displaced persons, as evidenced by the occurrence at Jilib, which resulted in 10 deaths and 45 injuries).5 A month later, the Kenyan navy faced international criticism for having open fire on a trawler, killing four Kenyan fishermen who had been operating along shores of the Indian Ocean, while on August 11, 2012, the navy was again responsible for civilian deaths this time two teenagers and a pregnant woman when it shelled Kismayo.6 It should be noted that these actions were entirely gratuitous and unsanctioned, as air and maritime interventions are not included within the AMISOM mandate. As Frederick Nzwili has pointed out, Kenya is seeking to establish a small buffer state inside Somalia, one it holds sway in, which in turn has created tensions and !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
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UN Security Council, 6929th Meeting, Resolution 2093 (2013) (March 6, 2013), available at http://www.un.org/News/Press/docs/2013/sc10931.doc.htm. 4 Mark Doyle, Somalia accuses Kenya over Kismayo, BBC News (July 4, 2013), available at http://www.bbc.co.uk/news/world-africa-23177825. 5 Voice of America, Kenyan Jets Bomb Southern Somalia, 10 Dead (October 29, 2011), available at http://www.voanews.com/content/kenyan-jets-bomb-southern-somalia-10-dead132884553/147407.html. 6 David Smith, Kenyan Amisom peacekeeper held after shooting dead six Somali civilians, The Guardian (September 25, 2012), available at http://www.guardian.co.uk/world/2012/sep/25/somalia-african-union-peacekeepershooting. ! 3 of 7

recrimination in the region.7 The alignment of the KDF with its regional proxy, the Raskombani militant organization, has given free rein to human rights malfeasors. Scarcely a day goes by without new reports of enormities. Between the 17th and 23rd of July 2013 alone there appeared harrowing accounts of the displacement of Dhulbahante clansmen,8 the rape of ten women and children by Raskomboni militiamen,9 the indiscriminate killing of civilians at a foreign exchange market,10 and the targeting of radio journalists Mascuud Abdulahi Aadan and Mascuud Abdulahi Aadan by members of the Raskomboni brigade. This impressionistic account of human rights violations must suffice at this juncture, alongside an assurance that a full accounting of the many war crimes and crimes against humanity committed by the KDF and its proxies will be included in our forthcoming complaint. Nevertheless, it should be evident how innocent men, women, and children in Jubbaland find themselves caught between the Scylla of the KDF (along with its allies) and the Charybdis of Al-Shabaab militants. It is little wonder that the United Nations has expressed serious concerns about the deteriorating security and human rights situation in Jubbaland, lamenting the use of disproportionate force or indiscriminate targeting in violation of international humanitarian law by the KDF while noting that [s]ince October 2012, the explicit instructions of President Hassan Sheikh to AMISOM to keep the port of Kismayo closed and prevent the export of charcoal have been consistently flouted by KDF/AMISOM.11 There must be accountability for these grievous violations of human rights, and it is for this reason that we urge the ICC to investigate and prosecute them.

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Frederick Nzwili, Kenyan peacekeepers accused of creating buffer state inside Somalia, Christian Science Monitor (July 5, 2013), available at http://www.csmonitor.com/World/Africa/2013/0705/Kenyan-peacekeepers-accused-ofcreating-buffer-state-inside-Somalia. 8 Saadaal News, Dhagayso:- Ciidamo Kasoo Jeeda Beesha Dhulbahante oo iskaga baxay Kismaayo, Barre Hiiraalana ku biiray (July 23, 2013), available at http://saadaalnews.com/2013/07/23/dhagayso-ciidamo-kasoo-jeeda-beesha-dhulbahanteoo-iskaga-baxay-kismaayo-barre-hiiraalana-ku-biiray. 9 Somali Rights, 10 Women Raped in Kismayo Neighborhood (July 21, 2013), available at http://www.somalirights.com/2013/07/10-women-raped-inkismayo-neighborhood.html. 10 Somali Rights, Kismayo: At least six civilians killed in separate attacks (July 20, 2013), available at http://www.somalirights.com/2013/07/kismayo-at-least-six-civilianskilled.html. 11 Security Council Committee pursuant to resolutions 751 (1992) and 1907 (2009) concerning Somalia and Eritrea, Somalia report of the Monitoring Group on Somalia and Eritrea submitted in accordance with resolution 2060 (2012), S/2013/413 (July 12, 2013), available at http://www.un.org/sc/committees/751/mongroup.shtml. ! 4 of 7

III.

The ICC has jurisdiction over the situation presented, and is an appropriate forum for the investigation and prosecution of the crimes outlined above.

In accordance with Article 5 of the Rome Statute, the conduct in question constitutes criminal activity within the jurisdiction of the Court, meeting the criteria for classification as war crimes and crimes against humanity, those most serious crimes of concern to the international community [which] as a whole must not go unpunished.12 Article 7 of the Rome Statute provides for jurisdiction over crimes against humanity, which may include acts like murder, extermination, deportation or forcible transfer of population, rape, persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, and other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health, when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. The KDF and its proxies have committed all of the above acts, as discussed above, and as will be demonstrated further in the forthcoming complaint. Under Article 8(1) of the Rome Statute, meanwhile, the the Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes, the likes of which has been pursued by Kenyas President Uhuru Kenyatta and General Anthony Ngere (the commander of the Kenyan forces in Somalia). Article (8)(2)(a) includes such acts as willful killing, torture or inhuman treatment, wilfully causing great suffering, or serious injury to body or health, extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly, and unlawful deportation or transfer or unlawful confinement within the definition of war crimes. Article (8)(2)(b) likewise includes intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities and intentionally directing attacks against civilian objects, that is, objects which are not military objectives as further examples of war crimes. These are acts that, as we have shown and will continue to show, have taken place on a daily basis in Jubbaland, as carried out by KDF and Raskomboni forces. The ICC has jurisdiction over the conduct in question, in accordance with the Statute's preconditions to the exercise of jurisdiction contained in Article 12(2)(a) and (b). Kenya has accepted the jurisdiction of the court, and in fact President Kenyatta is already facing trial as a co-perpetrator of crimes against humanity in the case of The Prosecutor v. Uhuru Muigai Kenyatta, ICC-01/09-02/11. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
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Rome Statute of the International Criminal Court, preamble, 17 July 1998, 2187 U.N.T.S. 90. 5 of 7

The investigation and prosecution of President Uhuru Kenyatta, General Anthony Ngere, and other high-level officials is provided for by Article 28(a), wherein it is set out that a military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where that military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes and that military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. The same criminal responsibility can be applied to civilian superiors when, under Article 28(b), the superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes, the crimes concerned activities that were within the effective responsibility and control of the superior, and the superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. As will be set forth in far greater detail in subsequent communications, there is ample evidence demonstrating that high-level Kenyan officials have been orchestrating the commission of widespread human rights abuses with an eye to forging a buffer state between Kenya and Somalia. The war crimes and crimes against humanity that have taken place during the KDF campaign are not the result of misfeasance but of outright malfeasance, and must be addressed as such. For far too long have these individuals and those under their command been able to operate with impunity. Owing in no small part to the jurisdiction that the ICC can exercise over them, there is hope that their actions can be brought to an end. IV. Conclusion

For twenty-three years, Somalia was torn asunder by famine, civil war, and internecine conflict. Just as the social and political pieces are being put back together, just as militants are being driven from their strongholds, and just as international investment begins to flow back towards the Horn of Africa, the inhabitants of Jubbaland find themselves subject to air and naval bombardment, mass killings, targeted assassinations rapine, torture, and other shocking enormities. The city of Kismayo, which had escaped relatively unscathed from the decades of strife, is pockmarked with rubble, its inhabitants fleeing from, or living in fear of, those supposedly sent to keep the peace. Yet the KDF is not serving as a peacekeeper, let alone a peacemaker. Through its various illegal uses of force it has violated the law of nations at every turn, and those high-level officials who command it must be held accountable.

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Given the sheer magnitude of the human rights catastrophe that has taken place in southern Somalia due to the actions of the KDF and affiliated militias, it has become clear that the ICC is an appropriate forum for the investigation and prosecution of these gross violations. Somali Rights shares with the ICC the goal that the most serious crimes of concern to the international community as a whole must not go unpunished, and for this reason it is communicating with the Office of the Prosecutor in the hope that headway toward this end can be made. Somali Rights is, as previously stated, in a unique position to be of service to the ICC, representing as it does millions of Somalis both within and without the Horn of Africa. It has the ability to speak out against these atrocities in a way that officials in Somalia itself often can not, concerned as they are about their family members, many of whom happen to reside in Kenya. As an organization, Somali Rights remains un-intimidated, and free to pursue legal measures against those who would orchestrate murder, rape, and plunder on a disturbing scale in the Jubba region of Somalia. For this reason, Somali Rights is, and will continue to be, eager to assist with an investigation into these matters, and it respectfully requests that your office notify it of any future steps taken with respect to these matters. All inquiries, communications, and notices in this regard may be made through the undersigned counsel. Thank you in advance for your attention to this increasingly urgent matter. Sincerely,

Matthew J. Omolesky Attorney and Counselor at Law 25 West New England Avenue, Suite 150 Worthington, Ohio 43085 +1 614-372-8887

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