Practice Relating to Rule 140. The Principle of Reciprocity
Somalia’s Military Criminal Code (1963) states:
The offences specified in Chapter II [entitled “Illegal or arbitrary hostile acts”], in Chapter III, Section I [entitled “Abuse of means of harming the enemy”], and in Chapter VI [entitled “Offences concerning military requisitions, contributions and services”] of this Title, where committed by Somali citizens against the enemy State or subjects thereof, shall be punishable pursuant to an order from the Supreme Commander, or only insofar as the enemy State guarantees equal protection under criminal law to the Somali State and to its citizens.
In 1998, an ICRC publication entitled “Spared from the Spear” recorded traditional Somali practice in warfare as follows:
[T]he treatment of the wounded members of the enemy who were captured … depended on … the precedent established by that party which seized wounded prisoners first. If they had finished off the wounded men who fell into their hands, it became the established practice for that particular war to kill any wounded warriors who were captured.
In 2011, in its comments on the concluding observations of the Human Rights Council concerning Somalia’s report, the Transitional Federal Government of Somalia referred to “Spared from the Spear” as its “own Geneva Conventions”:
In times of hostilities, the Biri-Ma-Geydo
(Spared from the Spear), i.e. Somalia’s own “Geneva Conventions”[,] which existed long before the adoption of the Hague and Geneva Conventions, mitigated and regulated the conduct of clan hostilities and the treatment of immune groups.
In 2011, in its comments on the concluding observations of the Human Rights Council concerning Somalia’s report, Somalia’s Transitional Federal Government stated: “The Somali national forces are instructed to adhere to IHL … even if the insurgent fighters do not.”