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Conceptions of Transitional Justice in Somalia
Conceptions of Transitional Justice in Somalia
Conceptions of Transitional Justice in Somalia
Conceptions of Transitional Justice in Somalia
Conceptions of Transitional Justice in Somalia
Abdurahman Abdullahi (Baadiyow)This article is part of a larger research project on popular conceptions of transitional justice in Somalia and is based on a 2012 survey of 30 individuals currently living in Mogadishu who directly experienced or witnessed gross human rights violations after 1991. Their testimonies indicate that targeted and random murders, gang violence against civilians, and rape were the most commonly experienced violations. The article then presents a summary and analysis of opinions on the most acceptable" mechanisms for redressing past injustices. While the Somali clan culture of collective responsibility for crimes remains in existence, the research found that more than half of the respondents believe in individual responsibility for the crimes that have been committed. In terms of addressing past violations, our interviewees gave precedence to the role of traditional authorities over modern ones (national and international actors), and to some form of Shari'a legal redress over exclusive reliance on customary law (xeer) or international law. However, the most common popular conception of Shari'a is legalistic and focused on hudud punishments rather than on holistic Islamic approaches to justice. Our survey showed that modern understandings of transitional justice are limited among the general population and mostly confined to a small number of members of the educated elite in Somalia.
Related Papers
There is a gap in existing knowledge on the topic of Somali reconciliation; and most literature considers the Somali civil war squarely a clan conflict. Moreover, transitional justice, which is an indispensable component of the peace-building process, was not included in the Somali case. Since 1979, Somalia has experienced ten periods of excessive human rights violations. Four of these periods occurred during the military regime, while the other six took place after the collapse of the state since 1991. This essay redefines the Somali conflict in refuting Somali exceptionalisation and the approach based solely on clan. Instead this briefing argues that the genesis of hostilities is the state-society conflict that, as a consequence, has generated a violent power struggle among the political elite.2 In turn, this political elite power struggle has provoked political clannism and Islamism: the two indigenous ideologies. Thus, four types of conflicts have been generated sequentially as a result of state-society conflict, which requires to be part of the process of reconciliation. The first phase of reconciliation requires restructuring the state to be in peace with its society in protecting its culture and value system, and adopting a participatory approach. This phase should be realised through constitutional and other reforms. The second phase of reconciliation is among political elites (unarmed Islamist and non-Islamist), which can be realised only through dialogue, changing predatory political culture, compliance with Islamic values and creating consensus, which is part of Somali culture. The third phase is clan reconciliation, which uses traditional conflict resolution mechanisms and elements of transitional justice compliant with Islam. Clan reconciliation should start with a detailed documentation of human rights violations and wide consultation with the clan elders. The fourth phase is the reconciliation with the armed Islamic groups like Al-Shabaab which could be initiated in parallel to the all other phases. This essay recommends a 10-point programme of reconciliation, which gradually realises good governance practices and comprehensive elite and clan reconciliation. Further, the essay also proposes a participatory approach and prudent synthesis of modernity and tradition. In implementing such a programme, the international community is required to provide political, technical and financial support.
This is part of chapter one of the published book ' Making Sense of Somali History', Volume two. It provides an overview of the events that occurred after the collapse of the Somali state in 1991.
This paper explores the political economy dynamics that have shaped the development of the justice system in the Federal Republic of Somalia. As a core function of the state, the current justice system reflects the divisions and tensions that have shaped politics in Somalia over the past two decades. Three sets of dynamics that have influenced the country’s political trajectory during that time have posed particular challenges to the delivery of justice: clan-based mobilization and conflict; ideological divisions between proponents of different versions of Islamic and secular law; and rent seeking in the context of a war economy. These dynamics have interacted over time to shape how elites have pursued power and exerted their authority, including through courts and other justice institutions. Although in recent decades these struggles have most often resulted in violent conflict and institutional collapse, at times, alignments of interests across the dimensions of clan, religious ideology, and economic interest have resulted in institutions that have provided some measure of stability, public order, and justice. Focusing on these dynamics in southern Somalia today, the paper shows how the current configuration of authority has undermined the development of credible justice institutions, yet also points to opportunities for building a more effective and legitimate justice sector. The paper concludes with implications for international engagement on the further development of justice institutions in Somalia.
2010 •
2009 •
The paper first provides some background to Islamism in Somalia. Subsequently it outlines in details the events in 2006 and introduces the main factions and actors. In this way, the heterogeneity of the ‘Islamist camp’ in Somalia is shown. The text then follows up the impact of US and Al Qaeda politics on Somalia until fall 2009 and shows how the external interventions produced ‘new’ extremists and moderates. It finally proposes that the current (civil) war in Somalia has its roots in the global ideological confrontation between the USA and Al Qaeda and their respective local allies.
External interventions in conflicts are prescribed to be peace-promoting mechanisms, but their effects seldom de-escalate conflict intensity. Based on the balance of capabilities theory, this paper tests the effects that the type of intervention, military or diplomatic, and the target of the intervention, partisan or neutral, has on conflict intensity. In the case of Somalia, for the period 1991 to 2010, the results suggest that neutral interventions, either military (humanitarian) or diplomatic, can lead to lower conflict intensity, but if partisan and military they lead to higher conflict intensity. If partisan and diplomatic and provided to both sides of the conflict they have no effect on conflict intensity. The conclusion is that peace competes with other objectives of external interventions.
Conceptions of Transitional Justice in Somalia:
Findings of Field Research in Mogadishu
Abdurahman M. Abdullahi (Baadiyow)
The author holds a PhD in Modern Islamic History from McGill University.
Introduction
Before the emergence of the independent Somali state in 1960, violence within and between Somali clans was typically resolved by traditional authorities using conflict resolution mechanisms based in customary law (xeer) combined with Islamic Shari’ a. These mechanisms were administered without reference to the modern concepts of transitional justice (TJ) and human rights (HRs) found in secular and international law. However, in the process of state-building, low intensity violations of human rights perpetrated by the state security apparatus occurred with impunity. The intensity of violations increased in the early 1980s with the rise of armed confrontation between opposition movements and the Somali state.
Early armed factions were Somali Salvation Democratic Front (SSDF), Somali National Movement (SNM), United Somali Congress (USC) and Somali Patriotic Movement (SPM). In these new circumstance, the nature of human rights violations and the accountablility of their perpetrators extended beyond the prerogatives of the traditional authorities. All sides in the conflict were guilty of committing gross violations of HRs, including the targeting of civilian populations because of their clan affiliation. Following the collapse of the state in 1991, the motives, nature, and actors changed significantly. Clan-based armed militias fought each other from corner to corner of the country, causing havoc and committing gross violations of HRs against civilian populations. Those violations were not limited to the actions of Somali non-state actors—i.e, warlords, Al-Itihad, Union of Islamic Courts and Al-Shabaab—but also implicated external actors: the United Nation Operations in Somalia (UNOSOM (1992-1995), Ethiopia’s miliary, African Union Mission in Somalia (AMISOM), and others.
UNOSOM was led by the United States and was accepted by the UN and made possible through United Nations Security Council Resolution 794. On the evening of 4 December 1992, US forces landed in Mogadishu. AMISOM is the regional peacekeeping mission in Somalia launched in 2007 by the African Union with the approval of the UN.. Other countries include Eritrea and some European fishing companies, as well as those international companies which dumped nuclear waste within Somalia’s territorial marine border.
Strangely enough, despite the many violations of HRs taking place in Somalia, ‘transitional justice’ was not incorporated as part of the international plan for assisting the Somali peace-building process.
For instance, the mandate of the African Union Mission in Somalia does include a TJ component. See Margherita Zuin, "A Model for Transitional Justice for Somalia," PRAXIS, The Fletcher Journal of Human Security (Vol XXIII), 2008. Many victims of the civil war felt bitterness over what they perceived as the indifference of the international community to the gross violations of human rights committed by known individuals. Moreover, it seemed to many Somalis that the culture of impunity was encouraged by the international community which privileged perpetrators of violence for high political positions in various transitional governments while ignoring their human rights records.
Somali warlords participated in all political reconciliation conferences. While alleged HRs violations were examined as one of the criteria for participation, many of these warlords still remain as members in the Somali parliament. Such defective approaches and ubiquitous disinterest were very much evident in the policies of UN agencies and even in the paucity of academic literature on the subject of transitional justice for Somalia.
This paper which is part of a larger research project on the conception of TJ in Somalia and Ethiopia’s Somali Region aims to make a start at filling the gap in the literature.
“Transitional justice in protracted conflict: local and Diaspora conceptions of retributive and restorative justice between shari’a, customary and human rights law in Somalia and Ethiopia’s Somali Region.” Project proposal submitted to the Deutsche Stiftung Friedensforschung, Max Planck Institute for Social Anthropology, Halle, 2010, 6 The rationale behind this research emanates from a deep conviction that understanding the views of the local population on the acceptable modalities of TJ for resolving their grievances is a necessary precondition for restoring faith in the system and averting inappropriate top-down or externally driven TJ mechanisms in the future. The findings are based on field research undertaken in the period from June 2012 to October 2012 in Mogadishu. The focus of the inquiry was to discover prevailing public opinion of TJ through sample interviews; it sought to identify the most ‘acceptable’ mechanisms from the menu of available TJ approaches ranging from local customary law, Shari 'a, and national and international law. In addition, the paper offers a brief summary of HRs violations in south-central Somalia since 1991 and provides accounts of the personal traumas and coping mechanisms experienced by Somalis during the civil war. Finally, the paper analyzes the responses of the interviewees in order to discover the main conceptions of Somalis about TJ mechanisms and their implications for moving forward.
History of Mass Violence in South-central Somalia
This brief historical background to the mass violence in Somalia confines its scope to the period after 1991 and examines the roles of Somali non-state actors, national state and external actors. However, it is important to recognize that substantial violations of HRs began under the military regime which took power in Somalia in 1969.. State violations including torture, extra-judicial detentions, collective punishments, clan cleansing, mass executions, and internal displacements which occurred in the 1970s and 1980s have not yet been fully documented or addressed in the literature
The terminology of clan cleansing has been applied most recently in Kapteijn’s study of the mass killings in 1991-2. However, even before the collapse of the regime, government forces targeted specific clans for collective punishment. See Lidwien Kapteijns, Clan Cleansing in Somalia (Philadelphia: University of Pennsylvania Press, 2013). . Nonetheless, the real agony of Somalia began with the total collapse of the state. On January 26, 1991, President Mohamed Siyaad Barre fled the “Villa Somalia” presidential palace and retreated with his supporters into the southern Somali regions. The conflict between the regime and the armed opposition factions rapidly transformed into warfare between the two clan families: Darood and Hawiye.
Although both the Barre government and the opposition USC played to clan loyalties before 1991, the transformation of the conflict into an all-out Hawiye vsDarood war appears to date to April 1991, when allied forces comprising all Darood clans attempted to recapture Mogadishu. These forces advanced to the outskirts of Mogadishu, and the USC was caught in panic and mayhem, and launched a counter offensive to throw them out at all costs. See Terrence Lyons and Ahmed I. Samatar,Somalia: State Collapse, Multilateral Intervention, and Strategies for Political Reconstruction (Washington DC: Brooking Occasional Papers, 1995), 22. At the same time, the capital city was engulfed in utter mayhem as unbridled militias engaged in plundering, looting, and killing of civilian residents. The political and military leadership of the United Somali Congress (USC)—part of the coalition which overthrew the Barre government—lost control of its militia as they vied for control of strategic locations includingtheseaport, airport, and “Villa Somalia” against other armed factions. In this anarchy, all state property such as factories, historical monuments, national archives, administrative offices, and social service sites including schools, universities, and hospitals were ransacked and gradually destroyed. Moreover, private houses, businesses, land, farms, and livestock were also captured and plundered. Nothing was spared from destruction. Comparable behavior of pillaging and preying on the peaceful civilian population was witnessed from the Somali Salvation Democratic Movement (SSDF), Somali Patriotic Movement (SPM) and Somali National Front (SNF) militias in their push and pull fighting with USC forces. Hassan Cali Mire, a veteran Somali scholar describes these occurrences succinctly as though “all the pent-up frustrations of three decades of postcolonial independence exploded into the ugly rise of fratricide, which has made the barbaric killing of innocent members of other kin communities a worthy goal.”
Hassan Ali Mire, “On providing for the future,” in Ahmed Samatar, ed., The Somali Challenge: From Catastrophe to Renewal? (London: Lynne Rienner, 1994), 22.
Within two days of the old regime’s collapse, on January 28, a provisional government was announced, and Ali Mahdi Mohamed was designated as the interim president. This precipitate decision by the civilian wing of the USC in Mogadishu (the so-called “Manifesto Group”) pre-empted the Mustahil accord which had been agreed to by the SNM, SPM and USC- General Aidid factions.
The three armed factions SNM, SPM, and the USC-Aidid wing were bound by the Mustahil agreement in June 1990 to form an alliance. Moreover, this agreement was consolidated in October 1990 and rejected any negotiated settlement with the regime. However, the civilian USC in Mogadishu were furious with General Aidid and the possible return of military rule in Somalia. It seems that this difference precipitated the hasty formation of the interim government The Mustahil stakeholders were swift to rebuff the new government. General Aidid considered the formation of the interim government to be betrayal of USC goals and a return of the former regime through the back door, while the civilian USC charged the Aidid faction with seeking a return to military rule.As a result, the previously divided USC further polarized into two antagonistic armed camps which mobilized along clan lines: the Ali Mahdi camp and the General Aidid camp.
The two contesting leaders Ali Mahdi and Aidid belonged to two Hawiye sub-clans: Mudulood and Madar-kicis, respectively, and clan mobilization was used for the power struggle. At the same time, the SPM and SSDF formed a new coalition of Darood and allied with Mohamed Siyaad Barre’s supporters in Gedo and Kismaayo. The alliance mobilized its combined military forces against the fractured USC and assaulted Mogadishu on April 9, 1991.
See Lyons and Samatar, Somalia: State Collapse, 22. The country was being carved up by competing armed factions which were almost exclusively clan-based.
Meanwhile, in northern Somalia, opponents of the old regime, predominantly though not exclusively Isaaq, were threatening a separation of the North from the South. Even though separatist sentiments in the north were already strong, the public in the North was newly enraged by the USC’s unilateral decision to form a government in Mogadishu. As a result, under public pressure, the Somali National Movement (SNM) unilaterally revoked the act of Union of 1960 and declared the independent state of Somaliland on May 17, 1991.
In the Grand Conference of Northern Peoples “Shirweynaha Beelaha Waqooyiga” held in Burco in May 1991, secession of Somaliland was not originally on the table. The SNM leadership was negotiating for a new model of governance with the USC-Aidid faction in Mogadishu. Mark Bradbury writes: “secession was not in the agenda of the SNM central committee” in the Burco Conference. See Mark Bradbury, Becoming Somaliland (London: Progresso, 2008), 80. See also, John Drysdale, Whatever Happened to Somalia? (London: HAAN Publishing, 1994), 25.
Back in Mogadishu, the appointment of the interim government triggered a bitter feud between rival Hawiye clan factions and power contenders. Consequently, in September 1991, when all efforts for peaceful political agreement were exhausted, severe fighting broke out between the two USC factions in Mogadishu.
General Aidid declared a military coup and a toppling of the Ali Mahdi government. See Hussein Abdi Osman, “Malaf al-Sarā‘ beyna ‘Ali Mahdi wa ‘Aidīd” (unpublished paper submitted to the Horn of African Center for Studies, Mogadishu, 1993). The fighting continued for some 100 days, destroying much of the city and causing an estimated 20-30,000 deaths through military casualities and civilian starvation .
See Mohamed Sahnoun, "Somalia: the Missed Opportunities," (paper delivered to the United State Institute of Peace, 1994), 11...
The humanitarian relief supplies could not reach starving people, as it was hijacked by the warlords and their militias who exchanged most of it for weapons. By the end of 1991, the fighting had divided Mogadishu with a green line between the two USC factions. The United Nations (UN) mediated a cease-fire agreement in March 1992 and reduced the magnitude of the conflict to some extent.
The war between the Somali National Front (SNF) and the USC faction of General Mohamed Farah Aidid for control of the southern coast and hinterland brought devastation to the grain-producing region between the rivers of Shabeelle and Jubba, spreading famine throughout southern Somalia. All attempts to distribute relief food were undermined by systematic looting by militias. The epicentre of famine, the town of Baidoa which had exchanged hands between various militias many times, became the theatre for the conflict, and a massive number of deaths occurred in the Baay and Bakool regions. It was estimated that more than 300,000 died and more than a million people suffered severely in 1991 and 1992.
The total cost of lives was never fully tallied. Lewis provides a statistic of 300,000 See I.M. Lewis, A Modern History the Somali: Nation and State in the Horn of Africa, Revised/Fourth Edition (Columbus: Ohio University Press, 2003), 265.
. See also Kenneth Rutherford, Humanitarianism under fire: The US Intervention in Somalia (Kumerian Press, 2008), 38; and Ahmed Samatar, ed., The Somali Challenge, 3.
In January 1992, as international concern over the Somali debacle was growing, the UN supported the U.S. decision to send a peacekeeping force to Somalia. US forces landed in Mogadishu in December 1992, leading a coalition of willing nations in accordance with UN Resolution 794, adopted on December 3, 1992. The aim of the intervention was to help create a secure environment for humanitarian efforts in Somalia. “Operation Restore Hope” consisted of a multinational force of more than 37,000 troops from 22 nations (24,000 troops from US and 13,000 from other countries).
Ibid. However, the mission was aborted on October 3–4, 1993 when a fight erupted between peacekeepers and General Aidid’s militia, which resulted in the death of 24 Pakistanis, 19 US soldiers, and 500–1,000 Somalis.
The number of Somali deaths was highly controversial. For instance, Rutherford reported 500 deaths and 700 wounded. See Rutherford, Humanitarianism, 160. Other sources provide a number of 500–1000. See Luke Glanville, “Somalia Reconsidered: An Examination of the Norm of Humanitarian Intervention”, Journal of Humanitarian Assistance, available from http://www.jha.ac/articles/a178.pdf (accessed on June 19, 2010), 11. For that reason, the UN withdrew from Somalia on March 3, 1995, leaving the country “in a state of violence and anarchy.”
The World Bank, “Conflict in Somalia, drivers and dynamics, 2005”, available from
http://siteresources.worldbank.org/INTSOMALIA/Resources/conflictinsomalia.pdf (accessed on June 31, 2010). Notwithstanding widespread criticism of UN operations at the time, the ramifications for Somalia were on the whole positive. The UN mission relieved famine, weakened the warlords, promoted civil society organizations, and encouraged business ventures in the private sector
This author was a Somali living in Diaspora who went back to Somalia during the UNOSOM period to work in the humanitarian field. The culmination of these developments was a change in national reconciliation strategy which recognized a greater role for civilian leadership. One outcome was the National Reconciliation Conference, held in Arta, Djibouti in 2000, which incorporated a wide spectrum of civil society actors after 10 years of failed warlord-driven conferences.
Abdurahman Abdullahi, “Penetrating Cultural Frontiers in Somalia: History of women’s political participation during four decades (1959–2000),”African Renaissance 4:1 (2007), 34–54. Arta produced a Transitional National Government (TNG), which gave some promise of restoring civilian governance in Somalia and reconciling its competing factions.
Unfortunately, in the aftermath of 9/11 and the Bush administration’s proclamation of a ‘Global War on Terrorism’ (GWT), Somalia was listed among the states that were potential havens for terrorism.
“On 23 September 2001, less than two weeks after the 9/11 terrorist attacks in the U.S., President George W. Bush signed Executive Order 13224, which blocked the assets of 27 organisations and individuals linked to terrorism. Tenth on the list was a little-known Somali organisation, al-Itihaad al-Islaami (AIAI)”. See, International Crisis Group, Somalia’s Islamists (Africa Report N°100 – 12 December 2005), available from http://www.crisisgroup.org/~/media/Files/africa/horn-of-africa/somalia/Somalias%20Islamists.ashx. Also, see Abdurahman Abdullahi, “Recovering the Somali State: the Islamic Factor,” In Somalia: Diaspora and State Reconstitution in the Horn of Africa, edited by A. Osman Farah, Mammo Mushie, and Joakim Gundel (London: Adonis & Abby Publishers Ltd, 2007), 196-221, 196. However, on August 27, 2002, US removed al-Barakat from its designated terrorist list. See Terrorist Financing Staff Monograph, Al-Barakaat Case Study: The Somali Community and al-Barakaat, available from http://www.9-11commission.gov/staff_statements/911_TerrFin_Ch5.pdf (accessed on August 25, 2010), 85. The first victim of the GWT was the Transitional National Government (TNG), which erstwhile international supporters suspected of having too many Islamists in its ranks.
Somali Reconciliation in Djibouti in 2000 was a civil-society driven process, and ideological and clan differences were acknowledged in the inclusive approach. As \a result many Islamists became members of the parliament and Islam was accepted as the ultimate reference for the laws of the land.. Moreover, the TNG proved dysfunctional due to low capacity of leadership and opposition from warlords who had been marginalized by the TNG government; the warlords found support from Ethiopia and from Western intelligence agencies concerned about the Islamist leanings of the TNG. International efforts to establish another government led to a new round of peace talks in Kenya, known as the the Eldoret/Mbagathi conference. The conference was sponsored by IGAD (the Intergovernmental Authority on Development) but was dominated once again by warlords and their allies. With the strong backing of Ethiopia, the conference concluded by endorsing another ‘Transitional Federal Government’ (TFG) in 2004. l The TFG unsurprisingly failed to secure popular support in Somalia, especially in the south: personal squabbles among assembly members and government ministers, lack of governance capacity, and rampant corruption paralyzed the TFG and thwarted efforts to restore state institutions. The TFG had to govern from the inland town of Baidoa because of its unpopularity in the capital, Mogadishu, where local warlords vied with a growing Islamic Courts movement for support of the populace.
USA counter-terrorism operations offered covert financial and political support to the warlords who established an “Alliance for the Restoration of Peace and Counter-Terrorism,”
The alliance consisted of eight Mogadishu based warlords. See “Somali warlords hold 'secret anti-terrorism' talks with US agents: witnesses", Agence France Presse, February 28, 2006. with the aim of uprooting Mogadishu-based Islamists.However, the undertaking provoked an unprecedented upsurge of Islamic rage in Mogadishu under the Union of Islamic Courts (UIC) leadership, and the US-backed warlord program was aborted and dissolved. . The political environment of Somalia changed dramatically with the outright victory of the UIC over the warlords; in June 2006, the UIC assumed uncontested control over Mogadishu and many of the surrounding regions. But once again popular hopes for peace and stability under a UIC administration were dashed with the impasse of peaceful dialogue in Sudan and the renewed escalation of civil war in which the Ethiopian military participated with tacit US support. The UIC was defeated on Christmas Eve 2006, and a new round of resistance against Ethiopia began with various forces pursuing their own political agendas.
After the defeat of the UIC, various forces opposed to the Ethiopian occupation and/or to the TFG regime gathered in Asmara, the capital city of Eritrea, and an Alliance for the Re-liberation of Somalia (ARS) was formed in September 2007. International and regional diplomats encouraged reconciliation between the TFG and ARS, and a meeting in Djibouti in 2009 ultimately produced a new Transitional Government which combined former TFG and ARS supporters. However, the precipitate reconciliation process sponsored by the United Nations proved ineffective, and the new government depended heavily on protection from the African Union Mission in Somalia (AMISOM). At the same time, Al-Shabab, an extremist group ideologically affiliated with Al-Qaida, used popular discontent with the central government to seize control of large portions of southern Somalia and even extended its terrorist attacks to Uganda, threatening other African countries which were contributing troops to the security mission in Somalia.
In the course of the changing political alliances and international interventions which have been outlined above, many war crimes and human rights violations were perpetrated by all parties. The following chart summarizes the various phases of the conflict following the collapse of the state in 1991, each of which produced HR violations against the people in south-central Somalia.
1. 1991-1992- the collapse of the state and outbreak of the civil war and famine causing 20.000-30.000 deaths in Mogadishu and 300.000 deaths in Bay and Bakol famine.
2. 1992- 1995- Intervention forces combining Unified Task Force (UNITAF) and The United Nations Operation in Somalia (UNOSOM). This operation caused the death of 24 Pakistanis, 19 US soldiers, and 500–1,000 Somalis.
3. 1995–2001, inter-clan conflict and marauding militia belonging to various warlords.
4. 2001–2006: The beginning of the GWT, emergence of Union of Islamic Courts (UIC) and its conflict with Mogadishu Warlords.
5. 2007–08, Ethiopian military intervention, UIC resistance, the AMISON, US counter-terrorism operations and war with Al-shabaab.
6. January 2009 and after: Continuation of conflict between AMISOM and Somali military and Al-Shabab.
Conceptualization of Transitional Justice
Transitional Justice has been defined in many ways by scholars from several academic disciplines, and conceptual approaches have evolved over time. Early scholars narrowly defined TJ in the process of laying the foundations of international human rights law. These early attempts were exemplified in the legal developments associated with the trials of Nuremberg and Tokyo after World War II. The second generation of scholars focused mostly on the development of restorative mechanisms as well as innovative tribunals.
These restorative mechanisms included truth commissions, official apology and reparations, as well as innovative tribunals, including the International Criminal Tribunals for the Former Yugoslavia and Rwanda, as well as hybrid courts like the Special Court for Sierra Leone. During these two periods, TJ was approached from a Western legal perspective, and alternative approaches from the southern hemisphere were not considered relevant. Recent scholarship, however, has moved towards a more comprehensive perspective which seeks to account for cultural variations in the understanding and application of judicial principles. Naomi Roht-Arriaza, for example, writes: “the universe of transitional justice can be broadly or narrowly defined. At its broadest, it involves anything that a society devises to deal with a legacy of conflict and/or widespread human rights violations, from changes in the criminal code... to tackling the distributional inequities that underlie conflict.”
Naomi Roht-Arriaza, ,‘The new landscape of transitional justice,’ in,” in Naomi Roht-Arriaza and Javier Mariezcurrena, eds., Transitional Justice in the Twenty-First Century (Cambridge University Press, 2006), 2.
It is worth comparing Roht-Arriaxza’s definition with those developed by international organizations such as the UN. The United Nations defines TJ as “the full set of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuse, in order to secure accountability, serve justice and achieve reconciliation”.
Annan, K., UN Secretary-General, The Rule of Law in Conflict and Post-Conflict Societies( NY: United Nations, 2004), 4. Another definition adopted by the International Center for Transitional Justice (ICTJ) reads that “TJ refers to the set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive HRs abuses. These measures include criminal trials, truth commissions, reparations programs and various kinds of institutional reforms”.
See this definition from http://ictj.org/about/transitional-justice ( accessed on June 11, 2013) All these definitions emphasize the fact that TJ implies a particular set of approaches dealing with the legacy of gross HRs violations and concur that alleged perpetrators of mass atrocities, war crimes and crimes against humanity should not be given impunity.
However, the argument here is that the forms of transitional justice which should be applied in a country like Somalia must take into account the local context, which includes considerations of what factors put a community at peace with itself and prevent the recurrence of violence. Most communities utilize some type of customary law which is accepted and respected by the individual members of the community. In Muslim countries like Somalia, Isalmic jurisprudence has also influenced notions of peacemaking and restorative justice. Thus, multiple legal systems consisting of customary law (xeer),, Shari'a law, national laws and International law are available in Somalia.
Conception of TJ in the Traditional Xeer
The traditional legal system as it has evolved in Somalia is a combination of Shari’a and Xeer (local customs). In most traditional settings, clan elders oversee the implementation of the local xeer, while Islamic scholars are responsible and called upon for rendering religious judgments related to criminal acts and civil disputes. At the community level, then, xeer and Shari’a constitute parallel and interlocking systems of legislation.. Shari’a law is familiar to most Somalis, though its application in combination with xeer varies from community to community. Most Somalis are Sunni Mulism who adhere to traditional Islam, which consists of Ash’ariyah theology, Shafiyah jurisprudence and Sufism.
The Ashariyah theology was founded by Abu al-Hassan Al-Ashari (873-935) in reaction to the extreme rationalism espoused by the school of Mutazilah, one of the early theological schools in Islamic theology. The Shāfiīyah School of jurisprudence is also one of the major four Sunni schools of jurisprudence and rooted in the methodology and teachings of Abū-Abdallāh al-Shāfiī (767–820). Sufism appeared as a reaction against luxurious lifestyle that grew prevalent in the Islamic urban centers when Muslims became powerful and wealthy and plunged under the influence of other cultures. This gives them a widely shared set of Islamic practices and concepts which serve to unify a culture which otherwise is prone to fragmentation along clan lines. During the colonial era, European laws were introduced, pushing aside many aspects of the indigenous laws at the state level, even though European law had failed to penetrate deeply into the societal space. Therefore, three crosscutting sources of laws are competing with each other in Somalia: Xeer, Islamic Shari’a and secular European laws.
These laws are not mutually exclusive. For instance, many elements of Xeer are compliant with Islamic Shari’a while many modern European laws introduced in Somalia took account of the Islamic faith of the Somali people.
Somali customary law provided both restorative and retributive justice mechanisms. Communal (inter- and intra-clan) violence was not resolved through formal courts, but was settled by what we would call today an Alternative Dispute Resolution (ADR) body made up of Traditional Elders . The role of the elders was and is to seek ways of repairing damages caused by clan violence, including bodily harm and material damages. Through application of traditional Xeer and often tedious deliberations between traditional elders from both sides of the conflict, decisions are made on how to redress injustices through compensation and other restorative mechanisms. In the Somali clan system, the individual is not separated from his/her clan in dealing with violence and crimes. Thus, the basic concept of resolving conflicts emanates from the collective responsibilities of the clan members, which attribute only limited culpability to the individual perpetrator. This notion, of course, diminishes individual responsibility for a crime and may encourage impunity within society. Restorative justice practices which derive from custom in Somalia include forgiveness, payment of blood money (Diya), and other penalties for injuries.
Conception of TJ in Modern Somalia
Justice is a concept of moral rightness and its understanding differs to some extent from society to society depending on their cultural values. This does not mean however, that there are no universally accepted justice principles which are shared across cultures. In exploring conceptions of traditional justice within the Somali population, it became evident that there is no agreed upon terminology for TJ in the Somali language. Only three entries for TJ in the Somali language were found in the Google search engine,
Moxamed Cali Xarakow. "Cadaaladda Xilliga kala-Guurka". Available from http://www.hiiraan.com/op4/2012/july/25249/cadaaladda_xilliga_kala_guurka.aspx ( accessed on August 6, 2013). Also see Abdi Gadiid, "Yaan laga Tegin Cadaaladda Danbiilayaasha ma yaro". Available from http://www.qubanaha.com/2012/08/16/yaan-laga-tagin-cadaaladda-dambiilayaasha-ma-yaro-faalo-xiiso/( accessed on August 6, 2013). suggesting that the notion is not a familiar one in Somali popular discourse. This observation indicates that the modern concept of TJ is not well articulated in the Somali mass media or even in Somalist academic circles.
To further explore this notion, I posted a question on my Facebook page requesting readers to come up with Somali terminology for TJ.
See replies of the participants available from https://www.facebook.com/abdurahman.baadiyow ( posted in September 4, 2013). The question was posed as follows: ‘A form of justice called in English language "Transitional Justice" and in Arabic " al-Cadaala al-intiqaaliyah" is dispensed in the countries where civil wars and gross violation of human rights occur. There is no definitively agreed terminology for Somali language. Can you propose a Somali terminology for TJ? Can you find such terminology from Somali poetry?’ More than 50 individuals participated in the discussion and proposed 13 different terminologies.
1. Garbax iyo xaalmarin, 2. Waddadii caddaalada, 3. Garsoorka marxaladda kalaguurka, 4. Wadadii Cadaalad Raadinta, 5. Caddaaladda kalaguurka, 6. caddaalad ku meelgaar ah, 7. Xaq- xeerin, 8. Xeerka Kala Guurka, 9. Garsooridda kumeel gaarka, 10. Ka-Gudbidda Gaboodfalka, 11. Xaq uraadin xasuuq dhacay, 12. Garsoor kumeel gaar ah, 13. Is-xaqsiin. Analysing and short listing these terminologies, it was discovered that "cadaalad" (justice), which is borrowed from the Arabic "al-'Adalah," is commonly accepted and fairly widely used. The Somali term "garsoorka" coined from the compound words "gar"which means "something right" and "soor" meaning “to provide” was also proposed by several respondents.. The term "garsoor" literally signifies "providing rights to someone" and is often applied to to magistrates and judges; in fact "garsoore" is the terminology coined by Somalis to refer to judge and jurist. However, in Somali discourse the words "cadaalad" and " garsoor" often are used interchangeably by the public and in the mass media, which also employ the English words justice, law and judge.
http://www.thefreedictionary.com/justice
If we accept the generic term "cadaalad" as the most appropriate translation of “justice,” it is more difficult to find a Somali equivalent for ‘transitional’. In the Somali language, "kalaguurka" (transition or change) and " kumeelgaarka" (interim, provisional, temporary and transitory) are possible candidates .
http://www.yourdictionary.com/temporally The tern " kumeelgaarka" is probably less suitable here since it connotes a notion of "interim” or “provisional” justice), while " kalaguurka" appears closer to the concept of ‘transitional’.
the meaning of ‘transition’ according to http://www.merriam-webster.com/dictionary/transition is ‘passage from one state, stage, subject, or place to another’. In similar fashion, the Somali term of "kala-guurka" indicates passage from one situation to another. However, to clarify the meaning in Somali, it is necessary to add "xilliga" which means "the time of". Therefore, the phrase "xilliga kalaguurka" (the time of transition) provides a more nuanced meaning. Putting these concepts together, we devised a Somali terminology for ‘Transitional Justice’ --"Cadaaladda Xilliga Kalaguurka"—which was used in the Somali interviews for this research. Somalis are already familiar with the well articulated form of resolving conflicts known as reconciliation (Dib-u-Heshiisiin), which is one of the important components of any TJ process.
In the current Somali context, there is no clear national policy for pursuing transitional justice and no specific institutions established for that purpose.. The Provisional Federal Constitution (PFC) stipulates support for HRs and for a Human Rights Commission. Article 4 of the PFC affirms the state’s commitment to the promotion of HRs and the rule of law, while article 39 outlines procedures to redress violations of HRs. Article 41 mandates the establishment of an independent HRs Commission.
Somali Provisional Constitution . Available from http://unpos.unmissions.org/LinkClick.aspx?fileticket=RkJTOSpoMME=( accessed on 12 September, 2013.) Thus there is growing awareness in Somali legal and political discourse about the importance of TJ, even if there are not as yet any mechanisms in place for that purpose at the national level.
Conception of Shari 'a among Somalis
Islamic Shari 'a has a long history in Somalia, and while its implementation has been partial and uneven throughout the country, most Somalis have a familiarity with its general precepts. Recent calls by various Islamic movements for a more extensive application of Shari’a appear to be a reaction to the secular tendency of the modern Somali state and its perceived failures. This trend is manifested in the constitutions of Somaliland and Puntland, as well as in the Provisional Federal National Constitution. It is worth noting that Somalia has produced three national constitutions (1960, 1979 and 1989), two charters (2000, 2004) and one Provisional Constitution (2012), and all of but one of them explicitly acknowledge Islamic principles as the ultimate foundation for the laws of the land. (The only exception was the constitution of the military regime enacted in 1979.
In the first Constitution of 1960, see articles ( 1:3, 50, 94 and 29). The national Charter of 2000 included two important additional provisions in articles (2 and 4) which prohibits adoption of any law contradicting Islam or propagating other religions in Somalia. Also, see article 2 of the provisional Federal Constitution of Somali Republic. ) While it is important to keep in mind the historical importance of Shari’a in the doctrinal and constitutional discourses of Somali religious and legal elites, our attention here is focussed on conceptions of Shari 'a among non-experts of Islam as reflected in our sample of interviews.
Somali cosmology has been influenced historically by the Islamic Shari 'a, including its concepts of justice. These concepts are addressed in the basic sources of Islam: the Qur’an and Hadith, and the science of jurisprudence (Fiqh). For instance, the following well-known verse from the Qur'an offers an Islamic conception of justice: “The recompense for an injury is an injury equal thereto (in degree): but if a person forgives and makes reconciliation, his reward is due from Allah….But indeed if any show patience and forgive, that would truly be an exercise of courageous will and resolution in the conduct of affairs” (The Qur’an 42-40-43). This verse is one of many in the Qur’an which can be considered as laying a foundation for the concept of TJ. The Islamic vocabulary of “rewarding evil by evil”, “forgiveness”, “reconciliation” and “patience” represent concepts which also stand at the core of contemporary TJ mechanisms. For Muslims, these notions are rooted in the divinely revealed laws termed as Shari’a which are obligatory and binding on all believers.
The Qur’anic verse “But no, by your Lord, they shall have no faith until they make you (O Muhammad) judge in all their disputes and find in themselves no resistance against your decisions and accept them with full submission.” (4:65). One model of the application of TJ in Islam can be inferred from the events following the Prophet Muhammad’s conquest of Makkah (the holy city in Saudi Arabia). In dealing with his defeated enemies, the Prophet deployed four mechanisms: general amnesty, criminal persecution, individual forgiveness and institutional reforms.
Abdurahman Abdullahi (Baadiyow), "Islam and Transitional Justice: Principles, Mechanisms and Historic Role in Somalia". A paper produced as part of research project on Transitional Justice in Somalia commissioned by Max Planck Institute for Social Anthropology, Halle/Saale, Germany, 2013. Available http://www.scribd.com/doc/132832431/Islam-and-Transitional-Justice-Edited1-Doc. ( accessed on June 14, 2013), 19-20.
How does the contemporary Somali public conceptualize Shari'a? Most of our interviewees had a rather simplistic understanding of Shari 'a, taking a legalistic perspective that confined it to " Hudud Punishments". Hudud is that part of the Islamic law ordained by Allah which prescribes proper behavior and invokes punishments for serious crimes as a means of deterrence.. Interviewee (#27), for example, states: "To apply Shari' a, women should wear Hijab (Islamic code of women's dress); alcoholic beverages and gambling should be prohibited; women should stay at home and care for the children; women should not sit in the parliament". While Muslim scholars from various legal schools have provided various interpretations of the classical Islamic texts using distinct legal methodologies, the mechanism of " Ijtihad" (diligent independent reasoning) still remains intact as a means to review and adopt new laws. The issue of women's political role, for example, is considered one of the controversial issues in Islam; in Somalia, the debate has been influenced by the patriarchic culture typical of many pastoral societies.
One interviewee (#21) expressed the following general conception: "For me Shari 'a is simply to follow the Qur'an and traditions (sayings and actions of the Prophet Mohammad), while another (#11) stated: " Shari' a means to stone adulterers, to give alms, to pray and to fast during the month of Ramadan and make pilgrimage". This interviewee combined "Hudud" punishments with performing the four essential pillars of Islam. One of our Facebook respondents explained that "Shari' a is not to begin amputating limbs of the poor, sick, hungry and ignorant people. So, public education is a prerequisite prior to the implementing of Shari 'a". Another Facebook commentator considered that Shari' a is not anything except to prevent aggression, to detain the aggressor, to help victims of the aggression and to do so, we must have executive power". Thus, most of the interviewees’ conceptions were fixed on specific elements of Shari 'a, notably those associated with Hudud punishments in one way or another. Clearly absent from our limited sample was a comprehensive view of Shari' as a guide for regulating all human activities in the realms of morality, values, social relations, economic activities and politics, . While Islamic law may have a crucial role to play in the establishment of TJ mechanisms for Somalia, it is important to recognize that the general public’s understanding of Shari’a is not monolithic and is frequently limited to notions of ‘punishment.’
Research Note and Methodology
The survey research for this study was conducted in Mogadishu, where one can find individuals from all over South Central Somalia who were either victims, perpetrators or bystanders of the massive HRs abuses since 1991. Three well qualified research assistants were recruited, two from Mogadishu and one from Baidoa region. They were selected for their diverse clan affiliations and their familiarity with the various clans and regions in Southern Somalia. The author held a day-long familiarization and planning session with them on March 17, 2011. Together we designed the survey and divided the tasks equally: each researcher was to interview ten persons representing different age groups, genders and educational backgrounds. The team began working in the month of April and produced the first collection of data by the end of the month. On May 2, we met to review the preliminary findings and to begin the analysis. We discovered the need for more interviews to increase the number of females and the number of respondents above the age of 40. To include participants who had more direct involvement in the civil war-- “the big fish”, as we called them-- we used innovative interview methodse.g., inviting them for a dinner and engaging them in open and friendly discussions.
Our research objective was to document and analyze prevailing knowledge about past mass violence and gross HRs violations, and to survey ideas about dealing with that violence among Somalis in Somalia. The population of interest for the study consisted of adults who were present in south central Somalia between 1991 and 2010. The sample was initially set at 30 individuals designed to encompass and give due consideration to gender, age and clan membership. . On average, study participants were 35 years old. 60% had informal and 40% had formal education. The majority of participants (70%) were male.
The individual interviews used a predesigned set of questionnaires developed and agreed upon by the participating researchers. The core questions include personal background, experiences of injustice and/or violence that the interviewee had either been exposed to or witnessed directly, and their understandings of the reasons for that violence and its consequences The interviewees were also asked to comment on what steps had been taken to deal with the violence by legal or customary proceedings. Finally, each interviewee was requested to express his/her personal opinion on how to deal with the experienced injustice and asked to select from a menu of four available systems of justice: Somali customary law (xeer) and/or shari’a and/or national law and/or international law.
See questionnaires of the research in the attached appendix Individuals selected for interviews had to fulfill the following three conditions. First, they had to be present or proximate to one or several of the events either as a victim, perpetrator or bystander. Second, they had to be old enough to have some memory of one of the events. Finally, they needed to be aware of what happened after the event. The interviews were conducted in the Somali language using the " one -to-one" approach to collect confidential individual case histories.
This research benefited from the ‘place-based approach’ to TJ presented by Shaw and Waldorf.
Rosalind Shaw & Lars Waldorf (eds.), Localizing Transitional Justice: Interventions and Priorities after Mass Violence. (Stanford University Press, 2010). TJ practices work under assumed universal conceptions based on expectations that truth telling leads to reconciliation, prosecutions bring closure, and rendering of justice prevents the recurrence of violence. But because of different cultures and traditions, local responses to TJ may contest international and/or national laws and norms and offer different priorities. Thus, localizing TJ means to explore TJ mechanism preferred by the ordinary people and to propose more locally responsive approaches to social reconstruction after mass violence. In this approach, local preferences do not automatically or necessarily oppose national or international norms; multiple systems may come together in a particular locality which then can be taken as a starting point to engage complexities regarding TJ – e.g. contradictions between various conceptions of justice held by the people in a given place and by international actors working in that palce. By applying a place-based approach, the research can also take into account local variations in Xeer or Shari’a applications within Somalia, thereby providing a more nuanced approach to TJ.
Horrible Memories of Injustice and/or Violence/Conflict
This section provides translated narrations from Somali language to English of selected interviewees to demonstrate various HRs violations experienced and crimes committed in selected regions of Somalia. Most of these crimes involved indiscriminate murder,, assassination, rape and revenge killing. The atrocities experienced and their associated memories caused wide ranging psychological, behavioural and medical problems in individuals, in addition to the social, economic and political implications for the clans or communities involved. Psychological problems include post-traumatic stress disorder, depression, anxiety disorders and psychotic conditions. Moreover, exposure to trauma can lead to sleep disorders, sexual dysfunction, chronic irritability, physical illness and a disruption of interpersonal relations. Although most interviewees expressed their experiences with some form of trauma, there were no institutions which offered therapeutic treatment, so traumas were dealt with mostly through traditional coping mechanisms.
There are numerous traditional coping mechanism employed in Somalia. Among the most important is the reciting of Qur'anic verses by traditional Islamic scholars which offer solace to the victims and their kin. . In addition, various forms of supplication by relatives and friends typically constitute a part of these traditional means of coping. Some of these traditional mechanisms derived from an Islamic cosmology based on the belief that disastrous events are the will of God. Consequently, Muslims must accept whatever happens to them and seek the help of Allah through supplications, without eschewing other available medical and social assistances.
See Qur'anic verse which says: "No calamity befalls on the earth or in yourselves but is inscribed in the Book of Decrees, before We bring it into existence. Verily, that is easy for Allâh. In order that you may not grieve at the things that you fail to get, nor rejoice over that which has been given to you. And Allâh likes not prideful boasters.(57:22-23)
The concept of trauma is not well known to the majority of the Somalis, as both our field research indicates and as a recent study conducted in a Somali community in the UK attests:
"Out of 92 people interviewed 52.1% did not know the understanding of Post-traumatic Stress Syndrome although many were sufferers. It was also apparent that people suffering from mental health were not being supported and in fact were being stigmatized in the community resulting in many sufferers hiding their problems. 50% of sufferers did not receive any treatment."
Northampton-Shire Somali Community Association, Dhaawac ama Waxyeelo Maskaxeed, a Report on Post-Traumatic Stress in the Somali Community in Northampton and their experiences of Health Service, 2008. Available from http://www.nmhdu.org.uk/silo/files/post-traumatic-stress-disorder-in-the-somali-community-northampton.pdf ( accessed on August 5, 2013), 47.
Let us now look at a sample of the testimonies gathered from our 30 respondents:.
One of the most painful narrations (#1) was obtained from a former member of the United Somali Congress (USC) militia, who exposes a tale of a father inheriting a sex slave from his son. He said: “I was one of the early members of USC militia who started guerrilla war against the Somali government. I fought from the Somali-Ethiopian border until we captured Mogadishu. During the civil war everything was destroyed and surviving militia members were desperate and unemployed. Most of the former militia members died in the war and survivors among them were scattered. In April 1994, I decided to visit the house in which I heard that one of my former colleagues lived, in the old district of Mogadishu-Hamarweyne. I was desperately in need of his financial assistance. When I knocked at the door of his residence, suddenly a chained white Banaadiri women in her 20s opened the door.
The Benadiri people traditionally lived in the Mogadishu districts of Shangani and Hamarweyne, in Merca, and in Barawa. They are reputed to be the early founders of Mogadishu and trace their mixed origins to Arab, Persian, and Cushitic people. They can often be identified by their lighter skin, in comparison with the majority of other Somalis. See Lee Cassanelli, The Benaadir past: essays in southern Somali history (Philadelphia: University of Pennsylvania Press, 1973). Surprisingly, the lady was chained from her legs in a way that she cannot go beyond the door, but she can move around inside the house. I asked her where is my friend Ali? She replied in a whisper: He died a few months agoin the war in Bay Region. Then, she began to tell her story. She said: ’after the outbreak of the civil war in Mogadishu in early 1991, I was abducted by the brother of your friend who was a member of the USC marauding militia. He used me as his wife, but in reality I was his sex slave. After his death, his brother inherited me and I was his sex slave too.’ Suddenly, while she was talking to me, I heard a noise in the house…. that resembled I asked her who is now with you? She repliedthatshe was inherited by the father of the two former ’husbands’…. ‘And he is taking care of me…’. I was shocked and never imagined such incidents could occur in a Muslim country like Somalia. I quickly left the house”.
Indiscriminate killing and house grabbing was reported by another former USC militiaman (interviewee #5) who was among those who entered and captured Mogadishu from the government forces in 1991. “One day, I met a former colleague of mine who was very active in the militia of USC in its early formation in Ethiopia. The time was 1994 when Mogadishu civil war had receded. I had not seen my friend after we entered Mogadishu in late 1990. I asked him: my friend how have we benefited from USC struggle? “ maxaad ka faaidaysatay halgankii USC”? we started sharing story after story and finally he took me to a beautiful two story building and showed me around. His family and relatives were living there. It was a well furnished house which most likely belonged to a wealthy family or high ranking government official. He told me: look my friend, I have benefited from our struggle with this house. This house belongs to me forever, he said with confidence. I asked: "my friend where is the owner of this house? They will return one day and reclaim their house". Then, he grabbed my hand and took me to the corner of the garden of the house and showed me the dry bones of dead human bodies. Then he said: “These were the mother and her 6 children who lived in this house. Their father was killed in the early days of the civil war and when I took over the house, I killed all the family members.’My friend!’ he said, ’For sure nobody is alive to reclaim this house’."
Interviewee (#4) reports on the atrocities of the Al-Shabaab insurgency, the militant Islamist group who controls large swathes of territory in the southern part of the country. The worst violence he experienced occurred when an explosion shocked the truck in which he was traveling in 2009 on the road between Afgoye and Merca.
Merca is a historical coastal town and the regional capital of Lower Shabeele, located about 110 km southwest of Mogadishu. Afgoye is a town and district of Lower Shabeele region which is located 30 km west/southwest of Mogadishu. He said: “Nine persons were injured including myself. I was injured badly and parts of my body had been completely removed. The area of the explosion was under the control of Al-Shabaab and the most likely perpetrators were Al-Shabaab militia. The injured individuals were all unarmed innocent people including three women and five men. We could not explain the true reason for committing such atrocities. The injured individuals were taken to Mogadishu Hospitals. Nothing could be done about those responsible for the violence.”
Interviewee (#10) recalled a revenge killing among clans, a well known tradition in Somalia. She was a widow explaining how her husband was executed. “My husband was murdered between Garbahaarey and Buur-dhuubo in the Gedo Region in 1997.
Garbahaareey is the capital town of Gedo region in Somalia and Buurdhubo is one of its districts. Al-Itihad, an Islamist militant group, took over control of Gedo region after the collapse of the state in 1991 and established their version of Islamic compliant administration.
Duale Sii'arag, "The Birth and Rise of Al-Ittihad Al-Islami in the Somali Inhabited Regions in the Horn of Africa", 2005. Available from http://wardheernews.com/articles/November/13__Alittihad_Sii'arag.html ( accessed on August 5, 2013) However, they were surprisingly defeated by an alliance of clan militia and Ethiopian defence forces. Some sub-clans supported Al-Itihad and others opposed them. Thus, after their defeat, clan militia allied with the Ethiopian forces began to target clan members who supported Al-Itihad. My husband was from a clan that supported Al-Itihad, and therefore he was targeted for revenge killing. My husband was traveling from Garbaharey to Buur-Dhuubo and the truck he was traveling with was stopped at a checkpoint and searched by the enemy clan militia. He was taken into custody and executed for revenge killing. The killing of my husband then instigated a fight between his clan and the clan of the militia that shot him. My husband was a well respected and famous person and his murder was considered a great humiliation to his clan. Therefore, according to clan tradition, he should be revenged. The clan of my husband initiated a plan for his revenge and finally found two innocent individuals who belonged to the enemy clan and shot them in cold blood in the town of Buur-dhuubo. The conflict was exacerbated and many other individuals were murdered for revenge killing. Finally, the conflict was controlled and the two clans resorted to solve their conflict through traditional xeer system.”
Interviewee (#13) recounts his witnessing of killing and rape. He said: “my brother was killed and his wife was raped in front of me and my young brothers in Singale, located in Lower Juba in 1993. Our story begins when my elder brother evacuated me, his wife, the two young brothers and our mother from Kismayo town because of the fear of war flaring there. The road we were traveling was muddy and it took us many days. Unfortunately, our car was broken at Singale and our supplies of food and water finished. My elder brother tried his utmost to get supplies and sent a message to relatives in Kismayo. The next night, while we were waiting someone to rescue us, a car loaded with militia came to us and we were very much delighted thinking they came to save us. However, after asking us some questions they recognized what clan we belonged to and began to threaten us pointing their guns towards us. They shouted, ’do not move’ and dragged the wife of my brother away. When my brother started to resist they simply fired five bullets in his chest and raped his wife. They did not fire on us because the rest of us were children. My age was 14 years and the other brothers were younger than me. They left us, but they came back after a few hours and took the car and all our belongings. The unconscious wife of my brother was left alone in the nearby jungle; we were scared and remained there alone. In the next morning, individuals from our clan arrived and we were saved from imminent starvation. No action was taken to deal with this atrocity even though the perpetrators were identified.”
Interviewee (# 6) tells about her husband who was murdered while attempting to halt fighting between two of his relatives’ militias. She said: “My husband and I married in 2007 and had three children, two boys and one daughter. The daughter was born after the death of my husband and she also died after three months. My husband died while trying to mediate the fight between two close relatives’ militias. He was intentionally shot by one of militias. My husband was a driver of lorries and was well known in the central regions of Somalia. Five days before his death, he left us to travel as his routine work requires. My last contact with him was the Tuesday morning he was murdered; I heard the news of his death in the afternoon. I was shocked and traumatized. I loved my husband so much and was not expecting to have orphans to raise alone. Anyway, It was the will of Allah and we have to accept and be patient.”
Interviewee (# 8) speaks on his personal experience of intrigues involving his clan and others during 2004. He narrated that he unintentionally killed a boy who worked for his family. He said: “In the beginning he was injured and I took him to the hospital and he died there. It took many nights before I could sleep; I was shocked and traumatized. My clan invited the clan of the murdered boy and we could not convince them that it was an unintentional killing and therefore, they have to accept blood money (Diyya). This incident occurred after the emergence of clan-based Islamic courts. Thus, after some days I was detained by one of the Islamic courts and incarcerated. This court belonged to the clan of the murdered boy. I was in the prison for 6 months during which militia belonging to the clan of the dead boy kept trying to take me out of the prison and kill me. Finally, the court offered a verdict that it was a case of premeditated murder and that I had to be executed. My clan considered the ruling of the court to have been motivated by clan attachment to the murdered boy. In the night before the morning of my scheduled execution, a militia belonging to the clan of my mother attacked the prison and took me out. The clan of the boy announced a war against my mothers' clan. After skirmishes in which 4 persons were injured, the two clans agreed to imprison me again and to restart new negotiations. However, I fled to Beledweyne and I lived there for a year. I came back to Mogadishu during Court Union time in 2006 and after many assassination attempts, I decided to flee Mogadishu to Diaspora and I came back in 2012.”
Interviewee (#3) witnessed a road robbery and indiscriminate killings. He said: “The road between Mogadishu and Kismayo is a very harsh road. In 2003 I travelled this road from Mogadishu to Kismayo. In the village called " Haramka" in the night, armed militia belonging to the clan residing in this area attacked us. They rained us with indiscriminate firing for quite some time. Most of the people in the truck were either killed or injured. The militia have searched each and every person and confiscated all the money, watches, mobile phones, and other materials. In addition, they dragged out two passenger girls and raped then not far from us. One of the two girls became unconscious for about a day. After they left us, we continued our journey and reached the town of Jilib where we buried our dead and received preliminary healthcare service.”
Interviewee ( #21) reported the murder of an international employee of one of the NGOs. He said: “A logistic officer working for MSF (Belgium) in Mogadishu in December 2011 murdered two international staff who were running MSF program in Mogadishu. This NGO employed more than 300 persons and ran many programs such as dispensaries and hospitals. As a result, the program was completely closed and MSF was evacuated from Mogadishu. I and the murderer belong to the same sub-clan, our clan elders tried to persuade government officials not to jail the killer because he is a Muslim, and the victims were non-Muslim.
There is disagreement among Muslim jurists on what to do when a Muslim kills a non-Muslim. According to Abu Hanifa, if a Muslim deliberately kills a non-Muslim, the killer Muslim is killed. The following verse of the Qur'an demonstrates that equality of humanity. "...if anyone slew a person - unless it be for murder or for spreading mischief in the land - it would be as if he slew the whole people: and if any one saved a life, it would be as if he saved the life of the whole people...(5:32)." But there are other scholars like Imam Shafi'i, Imam Malik, and Imam Ahmad who advocate that a Muslim who kills a non-Muslim should not be killed., The latter conception is more prevalent in Somalia. However, the killer was kept in custody for months and justice was not administered. The community lost its healthcare service and employees lost their jobs.”
Analysis of the Research Findings
Following is a summary of the findings from the interviews of 30 individuals. Categorizing types of violence, the research discovered that 17/30 interviewees reported that the type of violence they experienced/witnessed are murder/ target killings/ random killings/caught in crossfire. The second category of violence was rape and forced marriage which 4/30 respondents witnessed.
Exploring who was directly responsible for the violence, findings demonstrate that marauding clan militias were identified by 8/30 interviewees. On the other hand, 7/30 respondents considered Ethiopian forces who intervened in Somalia in 2006 to be accountable for crimes, while 11/30 respondents believe that Al-Shabaab insurgency was primarily responsible for the violence and crimes. Government soldiers were seen as less responsible: only 4/30 in our sample point the finger toward them. While the data suggest that Al-Shabaab were the prime cause of violence and Ethiopian forces a close second, in reality, the findings most likely reflect the fact that the majority of interviewees belonged to the younger generation who witnessed violence primarily during the phases of the Islamic Court Union in 2006 and the subsequent Ethiopian intervention.
Islamic Court Union was the association of clan-based Islamic Courts in Mogadishu which militarily reacted against the alliance of the warlords in 2006 and defeated them. The Union comprised divergent ideological forces and later broke up into various groups. One of their components is Al-Shabaab, which is currently affiliated with al-Qaida in Somalia. Also, the data allow us to affirm that gross violations in the period of 1991-2000 mostly involved clan militias belonging to various warlords. Other mass violence in that decade occurred between Al-Itihad Islamic organization and various clan militias in addition to sporadic Ethiopian incursions in the border regions with Somalia. While intervention of the multinational forces of UNISOM (1992-1995) also presumably caused gross violations of HRs, notably in its confrontation with General Aidid’s militia in October 1993, none of our interviewees reported on that episode. Subsequent investigations reveal that the ordeal left 18 American men dead and 70 wounded, while Somalis suffered casualties estimated around 3,000 (deaths and injuries). Indeed, this battle was immortalized in the famous "Black Hawk dawn" film.
Black Hawk Down is a 2001 American war drama directed by Ridley Scott. It is an adaptation of the 1999 book of the same name by Mark Bowden, which chronicles the events of the Battle of Mogadishu, a raid integral to the United States' effort to capture General Mohamed Farah Aidid.
Responding to the question regarding reasons behind mass violence, half of the respondents (15/30) consider the civil war to be the real cause while 9/30 believe lawlessness and lack of government institutions explain the violence. These statistics indicate that violence is largely perceived to be motivated by contending clans and their militia groups, while substantial numbers see conflict as the result of an absence of law enforcement institutions to deal with public disorder and of government mechanisms to resolve conflict. , Not surprisingly, 27/30 respondents concurred that these acts of violence, whatever their primary causes, were not being addressed through available customary or Shari' a law let alone state or international laws. As a result, the conflict continues to cause enormous psychological, social, and economic hardship, with implications that remain in the memory of victims.. For instance, 12/30 respondents reported forcible loss of properties and claimed that there are no reliable institutions or court system to which they have recourse. The losses are not confined to consumable goods, but also include irremovable properties such as houses, agricultural firms and land with valuable natural resources. Many of these properties belong customarily to certain clans (including minority clans) but remain nowadays in the hands of powerful militias of other clans. This phenomenon is equally prevalent in Mogadishu. The implication of loss of property is huge and complex. One consequence of the lack of secure property rights is that most of the families and individuals displaced from their homes in Mogadishu still fear to return to their homes which have been occupied or confiscated by individuals belonging to other clans and communities. This situation creates mistrust among various communities and makes it harder for them to participate freely in the reconstruction of the national state.
Apart from loss of property, 7/30 interviewees reported loss of dignity as the result of rape and forced marriages. Loss of dignity can be an unbearable burden, especially for Muslim women in more conservative Muslim countries. Most of the cases are not reported for fear of shame and social stigma. For example, the annual human rights violation report compiled by Peace and Human Rights Network in Mogadishu reported only six rape cases.
See Peace and Human Right Rights Network (PHRN) Annual Report from July 2010- June 2011submitted on September, 2011. A woman who is a victim of rape is socially stigmatized and may not be considerd suitable for marriage, or she may lose her marriage because of the shame culture in the traditional Muslim societies. This shame may even be transmitted to the victim’s family and children, constituting a life long stigma for the woman and a source of ongoing hostility and never-ending revenge between the families involved.
In responding to the question of how best to deal with the past violence that has been experienced by Somalis, 21/30 respondents answered they are prepared to forget and forgive and to accept some form of compensation for lost relatives and lost properties; while 6/30 interviewees were adamant in choosing not to forget and strongly believe in retribution for the perpetrators of their agony. The widespread willingness to deal with past violence with forgiveness may be related to the deep Islamic influence in the cosmology of the people, as reflected in the Qur’anic verse cited earlier in the paper: … but if a person forgives and makes reconciliation, his reward is due from Allah….” (The Qur’an 42-40-43). On the other hand, revenge killing is an established element in Somalia’s clan culture based on common responsibility of the clan for committed injuries. This culture emanates from the common security pact among clan members which mandates their responsibility to protect their members. From this point of view clans collectively pay blood money (diya) as a compensation for the damages/ injuries and lives lost. Diya is part of Somali customary law and is sometimes condoned by Islamic jurists as an alternative to revenge killings or perpetual feuds. At the same time, the influences of both urban culture and modern Islamic education have begun to erode the strong pastoral ‘revenge culture’, as is evident in the responses of our interviewees.
On the necessity of personal accountability for the violence/injustice, half of the interviewees (15/30) responded positively. This is another indication of the growing public attention to ‘modern justice’ norms resulting from exposure to Islamic jurisprudence, urban culture, and even the awareness programs of numerous civil society organizations and peace movement groups.
Since 1992, various human rights organizations and many civil society organizations have been exploring options for transitional justice in Somalia The best known in in Mogadishu are Ismail Jumale Human Rights and Elman Human Rights. On the other hand, 6/30 of the respondents declared that they do not believe in personal accountability and continue to favor collective responsibility of the clan members for the crimes committed. If our sample is representative, it indicates that the pastoral clan culture is weakening in the urban city of Mogadishu even though most of its population had been displaced by the civil war.
On the question of who should be active stakeholders in the process of addressing past injustices and instances of violence, the role of clan elders topped the interviewee's opinions (11/30) whereas the role of the Islamic scholars received 6/30 votes. Thus, 17/30 respondents saw local stakeholders as the most likely agents for promoting transitional justice. On the other hand, 9/30 assigned a primary role to the national government and only 4/30 saw the International community as a viable stakeholder. When asked which relevant legal norms come to mind when thinking about the issues of transitional justice, Shari 'a gets 15/30 while customary law gets only 3/30. While we might conclude from the data that a total of 18/30 of the interviewees prefer local solutions, it seems that the narrowing role of customary law and the widening preference for Islamic Shari 'a reflects the impact of modern Islamic movements in Somalia which have been actively advocating Islamic Shari 'a and have grown to prominences since the collapse of the state in 1991.
Modern Islamic movements in Somalia have been active since the 1960s and are affiliated mostly with theEgyptian Muslim Brotherhood and the Salafia of Saudi Arabia. The two most prominent organizations within these movements are Islah and Al-Itihad (Itisam).. For more information, see Abdurahman Abdullahi, The Islamic movement in Somalia: a historical evolution with a case study of the Islah Movement (1950- 2000). A PhD thesis submitted to McGill University, 2011. Available http://digitool.library.mcgill.ca/R/?func=dbin-jump-full&object_id=103487&local_base=GEN01-MCG02 (accessed on August 5, 2013).
Turning to our original question about Somalis’ familiarity with the concept of transitional justice, our survey indicates that 21/30 respondents were not familiar with the term, and only 6/30 claimed to have heard about it. The statistics certainly do not mean that Somalis are unfamiliar with the core ideas of retributive and compensatory justice, nor that they are uninformed about some the mechanisms which various countries have implemented to deal with human rights violations in their recent past. As we have seen, elements of retributive and restorative justice are well articulated in Islamic Shari 'a law and also entrenched in the Somali customary law. And most Somali respondents were familiar with the International Criminal Court for Rwanda in Arusha, Tanzania and with the South African Truth and Reconciliation commissions, both of which have been widely covered in the mass media. In a question about tailoring known TJ mechanisms from Rwanda and South Africa to the Somali context, 10/30 respondents preferred the Rwanda option while 6/30 regarded the South African TRC as more relevant for Somalia. (Even though these responses seem to be at variance at with our data showing that 18/30 interviewees preferred traditional options over imported ones, it is worth noting that both the Rwanda and South African TJ mechanisms incorporate elements of traditional justice alongside modern international and national laws.)
One way to interpret the data, then, is to conclude that while ordinary Somalis may not be aware of Transitional Justice as a holistic approach or familiar with the terminology of contemporary international law,, they are quite conversant with the logics behind the various options which Transitional Justice theory and practice offer. Our survey also reveals that there are different understandings of the causes of past violence depending on gender and generation of the interviewees. 15/30 respondents felt there were significant differences in how men and women, old and young viewed past violence, while only 9/30 believed that were no substantive differences.
We suspect that different understandings between genders may be related to the level of education which is generally much lower for women compared with men.
According to the 2006 Somalia Multiple Indicator Cluster Survey, the adult literacy rate for women is estimated to be 26% (compared to 36% for men, and 31% overall). Available from http://www.so.undp.org/docs/Gender_in_Somalia.pdfv( accessed on August 6, 2013). On the other hand, different understandings between generations may be correlated with the higher levels of education in the new generation and with their growing interest and connections with modern social media.
As of 2012, Somalia has around 186 internet hosts. There were about 106,000 online users in the country in 2009. Available from https://www.cia.gov/library/publications/the-world-factbook/geos/so.html (accessed on August 6, 2013). Moreover, more than a million Somalis, most of them part of the younger generation, live in the Diaspora and use social media extensively. The implications of these differences in perception will need to be taken into account by those seeking consensus on how best to implement a Transitional Justice approach in Somalia.
Conclusion
This field research was conducted in Mogadishu in 2012 and participated in by 30 selected individuals to discover variations in ways of understanding and addressing HRs violations that occurred in South Central Somalia after the collapse of the state in 1991. These violations intensified in 6 periods. The first period (1991-1992) followed the collapse of the state and the outbreak of the civil war and resulted in more than 300,000 deaths, hundreds of thousands of injuries, and loss of countless properties.. The second period (1992-1995) witnessed the international intervention of UNOSOM, and was followed by a third period (1995-2001) characterized by low intensity conflicts among various warlords. The fourth period from 2001-2006 saw the launch of a Global War on Terrorism and the emergence in Somalia of the Union of Islamic Courts. Fear of Islamist radicalism prompted the Ethiopian military intervention (2006-08) and the subsequent rise of local resistance movements, including the appearance of al-Shabaab. Finally, the sixth period (2009-present) has seen the continuation and occasional intensification of the conflict between AMISOM and Somali forces on one side and Al-Shabaab insurgents on the other.
The findings of the research demonstrate that the overwhelming majority of the gross HRs violations that occurred in South-Central Somalia involved murder(including target killings as well as random killings by armed militias), violence against civilians by armed gangs, and rape. 27/30 of those interviewed agreed that these incidents of violence against have not been addressed and that the forcible loss of properties remains unresolved. . However, the majority of Somalis are ready for peace and reconciliation and are prepared to forget and forgive and to accept some compensation for the loss of lives and properties. Furthermore, even though the Somali clan culture of collective responsibility for crimes remains intact, this research indicates that more than half of the respondents believe in individual responsibility for the crimes which have been committed. For addressing past injustices, our interviewees gave precedence to traditional stakeholders over modern ones (national and international actors) and to some form of Shari 'a legal system over exclusive reliance on customary law (xeer) or international law. However, the most common popular conception of Shari' a is legalistic and focussed on Hudud punishments. Our survey showed that modern understandings of TJ are limited among the general population and mostly confined to small educated elites in Somalia. The lack of Somali terminology for TJ testified to the paucity of public debate on the issue. Finally, most elements of modern TJ approaches can be found in internally accepted norms of Somali customary law and Islamic Shari 'a, and a place-based approach has the potential to reconcile multiple forms of law as they deal with issues of transitional justice.
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APPENDIX
Questionnaires:
Conception of Transitional Justice in Somalia
0 Personal Background
0.1 Name
0.2 Age
0.3 Sex: O Male O Female
0.4 Current address/city
0.5 Educational background (Islamic, formal, informal education)
0.6 Place of birth
0.7 Where did you grow up ?
0.8 From which clan and sub-clan are you?
1 Experiences of injustice and/or violence/conflict
1.1 What type of violence and/or conflict did you or your family experience while living in Somalia?
1.2 What type of violence and/or conflict did you witness (without being directly involved) during your life in Somalia?
1.3 Who else was involved in these events? Who were those who acted out the violence or drove the conflict in the first place? Who suffered most from it?
1.4 What were the reasons for these acts of violence? What triggered this kind of conflict?
1.5 What is the relevance of these events for you personally today?
2 Aftermath and followed up of violence and/or conflict
2.1 How did you and/or your family deal with these experiences?
2.2 How were these events/instances of violence/conflict and/or injustices addressed? Who addressed or attempted to address them?
2.3 What were the social, economic and/or political implications/results of these events in the long run, in your view?
2.4 In how far are the events you just outlined related to ongoing violence and/or conflict in Somalia now?
3 Options/Chances for the future
3.1 In your opinion, how are these instances of violence and/or conflict you experienced/witnessed/suffered from in the past important or relevant to your life and other Somalis today?
3.2 What in your opinion needs to be done to address these past events and suffering now or in the near future? What can be done to ‘heal the wounds’?
3.3 In your opinion, should perpetrators of violence and/or injustices be held accountable for their actions? If yes, how and through what kind of legal, social or political process?
3.4 Who should be an active stakeholder in the process of addressing past injustices and instances of violence?
IF RESPIONDENTS ANSWER ALREADY QUESTIONS 3.2 and 3.3 COMPREHENSIVELY QUESTIONS 3.5-3.7 WILL NOT HAVE TO BE ASKED!
3.5 What role, if any, can xeer play in this regard?
3.6 What role, if any, can Shari’a play in this regard?
3.7 What role, if any, can national authorities or the international community play in this regard?
3.8 Related to that, are there relevant legal norms at the national or internal level that come to your mind when thinking about the issues? If yes, which ones?
3.9 Are there, in your view, significant differences in the way how Somalis see the problem about past violence and/or conflict between those belonging to different sexes or different generations?
3.10 Do, in your opinion, people in the Diaspora reflect on these issues differently than those who are inside Somalia/the Somali Region?
3.11 What are your hopes and worries regarding dealing with past violence and/or conflict?
IF RESPIONDENTS ALREADY MENTION TJ IN THEIR ANSWER TO QUESTION 3.2 QUESTIONS 3.12 WILL NOT HAVE TO BE ASKED!
3.12 Have you ever heard about the concept ‘transitional justice’? If yes, what do you understand by that?
3.13 Do you think that transitional justice mechanisms such as implemented in South Africa and Rwanda before should also be implemented in Somalia?
Thanks for your response…
32
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