Somalia has long been the overlooked theater in the U.S. counterterrorism campaign. From time to time,…
Somalia has long been the overlooked theater in the U.S. counterterrorism campaign. From time to time, drone strikes in Somalia, military advisors assisting Somali partner forces, or an attack in the region by al-Shabaab makes the news and then coverage goes quiet again. Yet Somalia has been at the center of many of the toughest counterterrorism legal and policy questions – how to most effectively support multinational forces and underdeveloped local partners, whether a terrorist group for which local objectives often seem to overshadow global jihad is and remains truly at war with the United States, what role U.S. strikes should play (if any) alongside a larger campaign, how to manage risk to U.S. forces in unstable territory, and how to deploy civilian aid in a very dangerous environment, to name a few. The Biden administration finds itself struggling with all of these questions, now in the face of what some argue is a growing al-Shabaab threat and in the context of a larger commitment to reduce global U.S. counterterrorism operations. Yet the counterterrorism solution in Somalia ultimately is less about getting military operations right and more about building stability and good governance in a country that has for too long known little of either.
Background
U.S. military involvement in Somalia began with the humanitarian intervention in the early 1990s as part of a United Nations (U.N.) effort to provide famine relief, and is marked in public memory by the disastrous Battle of Mogadishu in October 1993. Although that conflict was primarily against Somali warlords who were impeding the distribution of food aid, the battle was a harbinger of the kind of fighting that the United States would face in counterterrorism operations in the post-9/11 period. During the battle, U.S. Special Operations Forces (SOF) on a mission to capture a high-value target were pinned down by militants and sympathetic locals. When the battle finally ceased, 19 U.S. soldiers were dead, 73 were wounded, one was captured, and two Black Hawk helicopters were downed and destroyed. Hundreds of Somalis, including civilians, were killed in the battle. The searing image from the debacle was the horrible spectacle of dead U.S. soldiers dragged through the streets. Operatives from the then-nascent al-Qaeda organization were, according to books by Lawrence Wright and Ali Soufan, present in Mogadishu at the time, and played a role in the downing of the U.S. helicopters.
In response to the tragedy, Congress imposed a variety of limitations on U.S. operations in Somalia. President Bill Clinton removed most U.S. forces well before a congressional deadline. Long after the United States retreated from Somalia, the conflict continued to shape U.S. thinking on urban and guerrilla warfare in general, involvement in Somalia specifically, and oversight of SOF operations.
Chastened by the “Black Hawk Down” experience, U.S. policymakers largely stayed out of Somalia’s civil strife and limited U.S. efforts to tracking down al-Qaeda operatives in Somalia, primarily working through the CIA. By the early 2000s, Somalia had deteriorated further and from the chaos emerged the Islamic Courts Union (ICU), a fundamentalist organization that gained traction fighting Somalia’s warlords and promising to bring justice and peace to the country. After a decisive victory against an alliance of warlords in 2006, the ICU claimed control over Mogadishu and a majority of central and southern Somalia. Fearing an Islamist government on its border, Ethiopia joined with allied Somali forces and launched an offensive aimed at wresting Mogadishu from ICU control. The U.S.-backed Ethiopian incursion met with little resistance and the ICU fell before the end of December 2006.
The ICU’s Mujahideen Youth Movement, or al-Shabaab, fled south and started an insurgency against the internationally-recognized Somali Transitional Federal Government (TFG). Seeing the instability in Somalia, the African Union in early 2007 authorized a peacekeeping force, known by its acronym AMISOM, to protect the TFG. Accomplishing that mission meant directly confronting al-Shabaab. Uganda contributed the lion’s share of forces to AMISOM, with support from Burundi and Ethiopia; eventually Kenya and Djibouti sent troops as well.
In AMISOM’s early days, U.S. support primarily focused on contributing funds to the mission and providing trainers and advisors through a private security contractor. Small numbers of U.S. SOF reportedly deployed to Somalia for limited purposes, but direct U.S. involvement in the fight against al-Shabaab was minimal. The United States did conduct intermittent strikes on al-Qaeda operatives present in Somalia, in one case firing from an AC-130 gunship on men reportedly involved in the Kenya and Tanzania embassy bombings and in another case, conducting a helicopter raid against a key operative in the embassy attacks and the 2002 bombing of a resort in Mombasa, Kenya.
As the TFG struggled to establish effective governance and the fledgling Somali National Army (SNA) haltingly built capacity, al-Shabaab gained ground, establishing influence across vast swaths of southern and central Somalia. The United States designated al-Shabaab a foreign terrorist organization in 2008. In 2010, al-Shabaab conducted its first external attack, bombing a World Cup viewing party in Uganda in retaliation against AMISOM’s largest troop contributor. The attack left 74 dead and 85 wounded and raised fears among U.S. policymakers about al-Shabaab’s intent to conduct external terrorist operations. At the same time, al-Shabaab had begun to make overtures to the Somali-American community, raising the specter of a homegrown violent extremist threat. An American from Alabama who had joined al-Shabaab, Omar Hammami, produced a series of recruitment videos, seeking to recruit other disaffected young Muslim Americans to the cause.
U.S. officials grew increasingly concerned as al-Shabaab cozied up to al-Qaeda. In 2011, U.S. forces captured a coordinator between al-Shabaab and al-Qaeda in the Arabian Peninsula (AQAP), Ahmed Abdulkadir Warsame, as he transited between Yemen and Somalia (Warsame pled guilty to material support for terrorism and conspiracy offenses in U.S. federal court after his capture). In early 2012, al-Shabaab emir Ahmed Abdi Godane swore formal allegiance to al-Qaeda, and al-Qaeda emir Ayman al-Zawahiri welcomed the group into its global network. In 2013, smarting from a significant defeat at the hands of Kenyan forces, al-Shabaab conducted another major external attack, this time assaulting an upscale mall in Nairobi, Kenya in a three-day siege that killed 67 and wounded 175.
With al-Shabaab gaining ground, there was pressure for the United States to adopt a more assertive counterterrorism policy in Somalia. Yet the Black Hawk Down debacle still loomed large, dampening policymaker appetite to provide combat advisors to AMISOM or the SNA. Further, questions about whether all of al-Shabaab, or just key operatives, were part of al-Qaeda and whether al-Shabaab sought to attack the United States or had primarily local and regional goals led to legal and policy concerns about lethally targeting the group. In particular, there were serious questions about whether operations targeting al-Shabaab were authorized under the 2001 Authorization for the Use of Military Force (2001 AUMF). In October 2013, the U.S. military deployed a small contingent of advisors to Mogadishu to support AMISOM operations. The United States also conducted occasional airstrikes against al-Shabaab operatives – rather than just remnants of al-Qaeda in East Africa, including a 2014 strike that killed Ahmad Abdi Godane, the emir of al-Shabaab, but on the basis of his status as an al-Qaeda member who posed a continuing, imminent threat to U.S. persons (discussed further below).
The U.S. advisory presence in Somalia increased over the next couple of years and AMISOM became more effective, driving al-Shabaab out of areas that it controlled and securing more of Mogadishu, which in turn allowed more civilian aid to flow into the country. U.S. support to AMISOM became more intensive, with U.S. forces in some cases conducting air strikes in what the Pentagon termed “collective self defense” of its partners in Somalia.
Yet al-Shabaab continued to adapt in the face of pressure. It adopted hit and run guerrilla tactics against AMISOM rather than attempting to defend territory. The group both won over and coerced local populations with its strict justice system and collection of tolls. The Shabaab system, while brutal and intolerant, provided a measure of justice and conflict resolution that stood in stark contrast to the dysfunctional government in Mogadishu. And its terrorist attacks became more violent, including a 2015 siege of a Kenyan university that killed 147 and a 2017 truck bombing in Mogadishu that killed at least 587 people.
In 2016, the Obama administration deemed al-Shabaab, not just individual members or elements of the group, to be an “associated force” of al-Qaeda that was targetable under the 2001 AUMF. While the administration had already been engaging in collective self-defense strikes against al-Shabaab in support of partner forces on the ground, this designation opened the door to more extensive lethal operations by the United States against the group, as opposed to striking only those members of al-Shabaab considered to be part of al-Qaeda core.
Current U.S. Involvement in Somalia
By the time President Donald Trump took office, progress in Somalia had stalled and policymakers worried more about the growing threat posed by al-Shabaab in the region and beyond. U.S. policymakers pushed for stronger action and Trump approved a new strategy built on increased airstrikes and expanded advisory support. In early 2017, President Trump declared parts of Somalia an “area of active hostilities,” which meant that more relaxed war-zone targeting rules applied than had been the case under the Obama-era rules codified in the Presidential Policy Guidance (PPG).
Later that year, after the designation had apparently expired, President Trump approved new rules that superseded the PPG. The Principles, Standards, and Procedures (PSP) guidance loosened the reins on targeting and delegated greater authority to operational commanders to conduct strikes against a broader range of targets than were authorized under the PPG, even while retaining some of the PPG’s high standards, such as the requirement of near certainty that civilians not be harmed in U.S. strikes. Shortly thereafter, the New York Times reported plans for a multi-year counterterrorism strike campaign in Somalia under the PSP. According to New America, strikes more than doubled during Trump’s first year in office before hitting record highs of 61 in 2019 and 49 in 2020. Trump approved the deployment of additional advisors, whose numbers in Somalia would eventually reach 700, and authorized more intensive support. U.S. forces conducted partnered ground operations, including a 2017 operation that led to the death of a Navy SEAL. At the same time, U.S. airstrikes expanded to include more strikes in collective self-defense of partner forces.
Yet, al-Shabaab remained seemingly resilient, conducting a high profile attack on a luxury hotel in Kenya in 2019 and a 2020 attack on a U.S. airfield in Kenya that left one U.S. soldier and two contractors dead. An al-Shabaab-affiliated militant was arrested in 2019 while taking flying lessons in the Philippines, raising fears of U.S.-focused operations. At the same time, an ISIS faction emerged in Puntland, in northern Somalia, carrying out dozens of attacks even while under pressure from U.S. airstrikes and in conflict with al-Shabaab.
Meanwhile, the Federal Government of Somalia (FGS) devolved into chaos, with rival factions undercutting one another, corruption running rampant, much-needed structural reforms delayed, and functional governance elusive. The U.S. and international civilian presence remained small and mostly hunkered down in secure compounds, limiting their ability to provide civilian aid or support the Somali political process.
Nearing the end of his presidency, Trump ordered the withdrawal of U.S. forces from Somalia, fulfilling a promise to draw down America’s forever war commitments.
Upon taking office, the Biden team cautiously re-engaged in Somalia. By late summer, the administration was still considering proposals to send dozens of military advisors back to the country. For the first time since Biden took office, the U.S. military launched a dozen strikes in July and August 2021 before once again halting operations. In late February 2022, the United States again launched a strike on al-Shabab militants.
But as the administration entered its second year, it punted on larger questions about U.S. operations in Somalia as it debated how to balance the threat posed by al-Shabaab against the policy imperative to end the so-called “Forever Wars.” According to the New York Times, some officials worry that al-Shabaab is at its strongest in years, while others believe the threat is overhyped. Some Somalia analysts have begun to contemplate what a political settlement with al-Shabaab would look like, especially as the FGS appears to be incapable of defeating it. Meanwhile, the U.S. military is reportedly asking President Biden to deploy more commandos to Somalia. Commentators have begun to draw comparisons between Afghanistan and Somalia due to the dysfunctional government, the resilient al-Shabaab insurgency, and failed U.S. policies.
The Legal Basis for U.S. Role in the Armed Conflict in Somalia
President Biden’s decision to renew direct military strikes in Somalia raises once again the question of the legal basis for that engagement.
Domestic law. U.S. operations in Somalia against al-Qaeda and al-Shabaab have long been carried out under the 2001 AUMF. As noted above, after several years of targeting only “al-Qa’ida-associated elements of al-Shabaab,” the Obama Administration decided in 2016 to characterize the entire group as an “associated force” that falls under the 2001 AUMF. As former State Department lawyer Brian Finucane explains:
A term of legal art under the 2001 AUMF, the executive branch defines an “associated force” as an organized, armed group that has entered the fight alongside al-Qa’ida or the Taliban and is a co-belligerent with al-Qa’ida or the Taliban in hostilities against the United States or its coalition partners. The announcement in 2016 that al Shabaab was covered by the 2001 AUMF followed at least a year of ground combat by U.S. forces in Somalia as well as a number of airstrikes conducted in “collective self-defense” of partner forces.
The decision appears to have been arrived at after substantial legal wrangling within the administration, partly due to a factual question regarding whether al-Shabaab as an organized armed group could be considered to meet the U.S. government’s own test for what constitutes an associated force. After all, large portions of al-Shabaab have long focused on regional aims and opposed al-Shabaab leadership’s full allegiance to al-Qaeda.
Notably, the legal theories that form the claimed basis for sweeping al-Shabaab within the “associated forces” designation under the 2001 AUMF have been contested by legal scholars. Indeed, the stretching of the 2001 war authorization to include al-Shabaab has long been the subject of criticism from experts. The thin connection between al-Shabaab and the 2001 AUMF may be at least in part explained as an effort at post-hoc justification. Brian Finucane and Stephen Pomper, both of whom worked for the U.S. government in the Obama administration, have argued that “the government decided to deem Al Shabaab an associated force of al Qaeda and thus targetable as a group under the 2001 AUMF after press reports revealed that U.S. forces in Somalia had for more than a year already been ordering strikes against a range of Shabaab forces in what they described as “collective self-defense” of partner forces.” As the 2001 AUMF enters its third decade, reliance on increasingly stretched interpretations of this outdated authority has become more problematic with each passing day.
International law. According to the 2016 Obama Administration Legal and Policy Frameworks Report, U.S. operations in Somalia have taken place with the consent of the FGS, and “in furtherance of U.S. national self-defense.” While the appeal to a right of self defense might be insufficient were it the only international legal justification, the consent of FGS – which exercises tenuous control over the country but is nonetheless internationally recognized as the official central government – provides sufficient international legal authority for the ongoing operations.
Collective Self-Defense Strikes: One of the persistent legal and policy questions of the war in Somalia has been how to frame strikes taken in “collective self-defense” of Somali or AMISOM forces. In July 2021, the Biden administration announced that it had relied on the justification of collective self-defense to respond with military force to threats posed not to U.S. forces but to an elite Somali National Army force known as the Danab–a justification the United States has used since at least 2016 to support strikes in the country. Afterwards, a Pentagon spokesperson stated that the United States had authority for the strikes under Article 51 of the U.N. Charter “to conduct collective self-defense of partner forces.” As one of us noted at the time, this justification was unnecessary if the U.S. military is, indeed, operating in the country with the consent of the FGS.
It is likely that the Pentagon spokesperson was using the term as it has come to be widely used in rules of engagement (ROE) – a usage of the term that appears to be at some disconnect with its meaning in international law. Indeed, U.S. Africa Command chief Gen. Stephen Townsend ordered the July strike without first consulting the White House, reportedly in response to an “imminent threat.” Strikes undertaken as collective self-defense of partner forces do not go through the normal vetting and approval processes established by the PPG and its successor PSP, and are not subject to a prior determination that the specific targets are covered by the 2001 AUMF.
If that is correct, then the July 2021 incident and a similar one in March 2016 highlight the possibility that the ROE rely too heavily in Somalia (and likely elsewhere) on an ever-expanding concept of collective self defense—one that is apparently not fully tethered to the scope of that authority under international law, not to mention heightened policy standards. The dangers of this approach are most evident not in Somalia but in Syria, where U.S. forces have claimed to rely on collective self defense to defend partner non-state actor groups—groups that do not have rights either to self-defense or collective self-defense under Article 51 of the U.N. Charter.
Further, it is possible that U.S. forces have increasingly relied on collective self-defense in Somalia as a means of developing a more robust partner-enabled strategy, with strikes conducted that would not otherwise be authorized under standing policy for lethal action. Whatever the justification, it’s clear that the use of so-called “collective self-defense” strikes has become a major legal and policy issue that the Biden administration must revisit as it finalizes its new guidance on the use of force.
What Now?
U.S. policy in Somalia should consider not only how to address any ongoing terrorist threat but also how best to stabilize the long-troubled country. News accounts and government reporting suggest al-Shabaab is gaining strength. But as has been the case in the past decade, it’s unclear to what extent the group is invested in targeting the United States itself – and building the capabilities to do so – versus gaining ground in Somalia and terrorizing its neighbors. In either case, it’s in the U.S. strategic interest to stabilize Somalia. Yet the militarized approach that has long dominated U.S. policy toward Somalia appears unlikely to produce that outcome; indeed, there’s a strong case that the opposite would prove true.
In Somalia (and elsewhere in Africa), the United States has been caught in an endless loop of strikes and counter-strikes and frustratingly slow capacity building, with little prospect of decisively defeating the enemy or undermining its support. Terrorist groups have gained local support by playing on an abundance of underlying grievances. The Somali government is willing to work with the United States, but it has proven incapable of effectively combating threats on its own, resolving long-standing political fissures, or establishing effective governance. The United States is thus stuck in an awkward position of assisting local forces that are unable to effectively address the threat they face – but who would likely suffer if U.S. support were withdrawn.
After its stepped up military campaign failed to achieve durable gains and following a last ditch effort to negotiate with al-Shabaab, the Trump administration decided to cut its losses and withdraw U.S. forces. The Biden administration has decided to re-engage, though currently at a level that leaves the country in a long-term stalemate. Battlefield losses could still degrade al-Shabaab, especially its external operations capabilities, but the larger conflict is likely to remain static.
As elsewhere in the region, improvements in governance and political reconciliation are the way forward – but prospects look bleak. The international community has dramatically increased aid to Somalia over the past decade. Yet Somalia is one of the worst governments in the world for corruption. As long as that remains the case, investments in governmental capacity building are unlikely to lead to meaningful change. Development aid might help drain al-Shabaab of some of its support and provide new opportunities to young at-risk Somalis, but without governance reform, such investments can only go so far. Further, gains in governance will likely only be possible if Somalia is able to resolve its increasingly divisive politics and forge a government that constructively incorporates Somalia’s complex clan dynamics. All of this will require the Biden administration to consider greater investments in civilian aid, deploying experts to Somalia, and engaging in smart diplomatic support to Somalia’s political reconciliation alongside any efforts to counter al-Shabaab militarily.
To succeed, political reconciliation will have to go beyond the government’s rival factions and include al-Shabaab. This will not be an easy process, with research showing it will likely take many rounds of negotiations over several years. As AMISOM troop-contributing countries lose patience, however, and with indications that Somalis increasingly support dialogue to end the conflict, it’s not clear that there is a better option. Although the group maintains hardline positions, it has begun to make some moves suggesting that it wants to be a political actor and may be willing to come to the negotiating table. As Somalia experts have noted, the experience in Afghanistan provides both a precedent for engaging with al-Qaeda-aligned groups and a cautionary note. Relying on Somalia’s clan elders and traditional conflict resolution processes could provide a foundation for reconciliation. But U.S. policymakers should heed the lessons of Afghanistan by developing a smart integration of diplomacy, military operations, and civilian aid to achieve their aims.
As for U.S. legal authorities, Somalia illustrates how woefully outdated the 2001 AUMF really is. The connection between al-Shabaab and those who carried out the 9/11 attacks is tenuous at best. And the reliance on a concept of “collective self-defense” that bears no real relationship to the international legal understanding of that term illustrates, as Elvina Pothelet observed four years ago, that “a change of term [in the ROEs] should seriously be considered as this clearly contributes to the conceptual confusion.” It’s time for Congress to stop turning a blind eye to the military’s increasingly strained efforts to muddle through on weak legal authority and revisit what, exactly, the United States intends to accomplish in Somalia–and what legal authorities are necessary to give the president the authority to achieve those ends.
by Oona Hathaway and Luke Hartig
