1

Conceptions of Transitional Justice in Somalia: Findings of the Field Research in Mogadishu Abdurahman M. Abdullahi (baadiyow)1

Almost 90% of the atrocities and gross violations of the Human Rights were not addressed yet in Somalia. Islamic Shari 'a is the preferred option for Transitional Justice while traditional customary law is considered to be the best option in resolving community related violence.

Introduction
Violence among Somali clans have been taking place long before the formation of Somali state in 1960, however, their traditional authorities administered conflict resolution mechanisms through customary law called “Xeer” combined with Islamic Shari’ a. They were not familiar with modern concepts of transitional justice (TJ), human rights (HRs), secular and International laws. However, in the process of state-building, low intensity violation of HRs by the state security apparatus occurred with impunity. The intensity of violations increased since early 1980s amid the rise of the armed confrontation between armed factions and the Somali state.2 The nature of violations and its perpetuators were beyond the prerogatives of the traditional authorities. Both sides of the conflict were committing gross violations of HRs and civilian populations were targeted because of their clan affiliation until the states collapsed in 1991. Moreover, after the collapse of the state, motives, nature and actors of the violations had drastically changed. Clan-based armed militias were fighting each other from corner to corner of the country causing havoc and committing gross violations of HRs. Furthermore, HRs violations were not confined to the Somali non-state actors (warlords, Al-Itihad, Union of Islamic Courts and Al-Shabaab) but implicated other external actors (United Nation Operation
1 2

Holds PhD in the Modern Islamic History from McGill University. Early armed factions were Somali Salvation Democratic Front (SSDF), Somali National Movement (SNM), United Somali Congress (USC) and Somali Patriotic Movement (SPM).

2

in Somalia (UNOSOM (1992-1995), Ethiopia, African Union Mission in Somalia (AMISOM) and others.3 Strangely enough, with all these violations of HRs taking palace in Somalia, TJ was not incorporated as part of the international plan in approaching Somali peace-building process.4 Many victims of the civil war still feel bitterness what they perceive as the indifference of the international community to the gross violations of the HRs committed by known individuals. Moreover, it seems as if the culture of impunity was encouraged through privileging perpetrators of violence to the high political positions of the government eschewing their human rights records.5 Such defective approach and ubiquitous disinterest is very much evident in the policies of UN agencies and even in the paucity of academic literature in the field of TJ. This paper which is part of a large research project on the conception of TJ in Somalia and Ethiopia’s Somali Region aims to fill the gap in the TJ literature.6 The rationale behind this research emanates from a deep conviction that understanding views of local population on the acceptable modalities of the TJ for solving their grievance are necessary precondition to avert plausible top-down or externally driven TJ mechanisms in the future. Thus, this paper is the culmination of a field research undertaken in the period from June 2012 to October 2012 in Mogadishu. The focus of the research was to discover prevailing public opinion of TJ through sample interviews and to find out most accepted mechanisms from the menu of available TJ approaches ranging from local customary law, Shari 'a, national and international laws. In addition, the paper provides brief background of HRs violations in the south-central Somalia
3

UNOSOM was led by the United States and was accepted by the UN and made possible through United Nations Security Resolution Council 794. On the evening of 4 December 1992, USA forces landed in Mogadishu. AMISON is regional peacekeeping mission operated by the African Union with the approval of the UN in Somalia in 2007. Other countries include Eritrea and some European fishing companies and those companies who dumped nuclear waste within Somali territorial marine border.
4

For instance, the mandate of the African Union Mission in Somalia does include TJ component. See Margherita Zuin, "A Model for Transitional Justice for Somalia." PRAXIS, The Fletcher Journal of Human Security, VOLUME X X I I
I – 2 0 0 8.
5

Somali warlords participated in all political processes and HRs violation was examined as a criteria for participation and many of these warlords still remain as members in the Somali parliament. 6 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

3

since 1991. Moreover, it examines prevailing perceptions widespread in the civil war state of affairs such as trauma and copping. Finally, analysis will be conducted on the answers of the interviewees in order to discover the main conceptions of Somalis about TJ mechanisms and implications.

4

History of Mass Violence in South-central Somalia
This brief historical background of the mass violence confines its scope after the civil war and actions of Somali non-state actors, national state and external actors. However, mass violations of HRs began with the military taking over Somalia in 1969 and its horrible history is rooted more than forty years. State violations such as torture, extra-judicial detentions and mass executions, clan cleansing, and internal displacements were not addressed yet.7 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 for southern Somali regions. The conflict between the regime and the armed factions rapidly transformed into warfare between the two clan families: Hawiye and Darood.8 Moreover, the capital city was engulfed in utter mayhem in which marauding and unbridled militias were engaged in plundering, looting, destroying, and killing. The United Somali Congress (USC) political and military leadership lost control of its militia who were vying for prominence and capturing strategic locations such as the seaport, airport, and “Villa Somalia.” In this anarchy, all state property such as industrial complexes, historical monuments, national archives, administrative offices, as well as social service sites such as schools, universities, and hospitals were gradually destroyed and looted. Moreover, private properties such as houses, businesses, land, farms, and livestock were also captured and plundered. Nothing was spared from destruction. Likewise, comparable behavior of pillaging and preying on the peaceful civilian population were witnessed from the Somali Salvation Democratic Movement (SSDF), Somali Patriotic Movement (SPM) and Somali National Front (SNF) militia in their push and pull fighting with USC forces. Hassan Cali Mire, a Somali veteran scholar describes these occurrences succinctly as though “ all the pent-up frustrations of three decades of postcolonial independence exploded into the ugly

7

The terminology of clan cleansing was used by .................. However, during the military regime and after its collapse, specific clans were targeted indiscriminately.
8

Although attempts were conducted earlier within the government and USC played clan affinity card in the conflict, total transformation of the conflict into Hawiye-Darood occurred in April 1991 when allied forces comprising all Darood attempted to recapture Mogadishu. These forces advanced to the outskirts of Mogadishu, and USC was caught in panic and mayhem, and launched a counter offensive to throw them out. See Terrence and Samatar, 22.

5

rise of fratricide, which has made the barbaric killing of innocent members of other kin communities a worthy goal.”9

Within two days, on January 28, a provisional government was announced, and Ali Mahdi Mohamed was designated as the interim president. This undertaking was considered a precipitated decision of the civilian USC in Mogadishu “Manifesto Group” pre-empting Mustahil accord between SNM, SPM and USC- General Aidid faction.10 Conversely, the reaction of the Mustahil stakeholders was swift in rebuffing the new government. In addition, General Aidid considered the interim government a betrayal of the USC goals and a return of the former regime through the back door. Therefore, the previously divided USC further polarized into two antagonistic armed camps that formed along clan lines: the Ali Mahdi camp and the General Aidid camp.11 Moreover, the SPM and SSDF formed a coalition of Darood, allied with Mohamed Siyaad Barre’s supporters in Gedo and Kismaayo. Contesting the USC, they mobilized military forces in Kismaayo and Gedo and assaulted Mogadishu on April 9, 1991.12 The situation in northern Somalia was developing into a separation of the North from the South. Even though the separatist tendency was previously strong, the public in the North was enraged by the USC’s unilateral decision to form a government in Mogadishu. Consequently, the public forced political leaders to immediately break from Somalia. As a result, the SNM unilaterally revoked the act of Union of 1960 and declared the independent state of Somaliland on May 17, 1991. 13 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
9

Hassan Ali Mire, “On providing for the future” in edited Ahmed Samatar, The Somali Challenge: From Catastrophe to Renewal? (London: Lunne Rienner, 1994), 22. 10 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 divided USC and Mustahil agreement with one its faction may cause the precipitate formation of the interim government 11 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. 12 See Lyons and Samatar, Somalia: State Collapse, 22. 13 In the Grand Conference of Northern Peoples “Shirweynaha Beelaha Waqooyiga” held in Burco in May 1991, secession of Somaliland was pushed unplanned. 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? (HAAN Publishing, London: 1994), 25.

6

for peaceful political agreement were exhausted, severe fighting broke out between the two USC factions in Mogadishu.14 This fighting continued for about 100 days, destroyed the whole city and shattered its population. It was reported that this fighting caused more than 20,000 – 30,000 deaths and caused starvation in large parts of the country.15 The humanitarian relief food could not reach starving people, as it was hijacked by the warlords and their militia 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 grainproducing 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 that 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 1992.16 In January 1992, the UN became involved in the Somali civil war and the international concern about the Somali debacle was growing and gaining the support of the US administration. As a result, 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. Thus, “Operation Restore Hope,” consisting of a multinational force of more than 37,000 troops from 22 nations (24,000 troops from US and 13,000 from other countries), was dispatched to Somalia.17 However, the mission was aborted on October 3–4, 1993 when a fight erupted

14

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). 15 See Sahnoun, The missed opportunities, 11. 16 The total cost of lives was never fully tallied. Lewis provides a statistic of 300,000, see Lewis, A History, 265. See also Rutherford, Kenneth: Humanitarianism under fire: The US Intervention in Somalia (Kumerian Press, 2008), 38. See also Ahmed Samatar, “Introduction and overview” in The Somali Challenge, 3. 17 Ibid.

7

between peacekeepers and the General Aidid militia, which resulted in the death of 24 Pakistanis, 19 US soldiers, and 500–1,000 Somalis.18 For that reason, the UN withdrew from Somalia on March 3, 1995 “in a state of violence and anarchy.”19 Notwithstanding that the UN mission in Somalia was criticized on many aspects, the ramifications for Somalia was overall positive. The UN mission stopped famine, weakened the warlords and promoted civil society, encouraged entrepreneurs and business ventures.20 The culmination of these developments was a change in national reconciliation and the growing role of the civil society. As a result, the National Reconciliation Conference driven by the civil society was held in Djibouti in 2000, after 10 years of failing warlord-driven conferences.21 In the aftermath of 9/11 and the Bush administration’s proclamation of the Global War on Terrorism (GWT), Somalia was listed among the states that are potential havens for terrorism.22 The first victim of the GWT was the Transitional National Government (TNG) claimed to have in its ranks many Islamists.23 Moreover, the TNG became dysfunctional because of many factors, including low capacity of leadership and the opposition of the warlords supported by Ethiopia. As a result, IGAD-sponsored Eldoret/Mbagathi peace process in Kenya, the exclusive warlorddominated conference was concluded with the formation of the Transitional Federal
18

The number of Somali deaths was highly controversial. For instance, Rutherford reported 500 deaths and 700 wounded. See Rutherford, Humanitarianism, 160. Other sources provide 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. 19 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). 20 This author was a Somali living in Diaspora who went back to Somalia during the UNOSOM period to work in the humanitarian field. 21 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. 22 “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-ofafrica/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 from its list of designated terrorist list. See Terrorist Financing Staff Monograph, Al-Barakaat Case Study: The Somali Community and alBarakaat, available from http://www.9-11commission.gov/staff_statements/911_TerrFin_Ch5.pdf (accessed on August 25, 2010), 85.
23

Somali Reconciliation in Djibouti in 2000 was civil-society driven process and ideological and clan differences were contained 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. In particular, Islah Movement was considered the most influential Islamic organization in the parliament and the government.

8

Institutions in 2004. Nevertheless, the warlord triumph proved short-lived with the internal conflicts of the assembly members and government, lack of governance capacity, and rampant corruption that paralyzed the recovery process of the state institutions. Moreover, USA counter-terrorism covert operations offered financial and political support to the former warlords who established “The Alliance for the Restoration of Peace and Counter Terrorism”.24 This alliance was aiming to uproot Mogadishu-based Islamists; notably the Union of Islamic Courts (UIC) in February 2006. However, this undertaking provoked an unprecedented upsurge of Islamic rage in Mogadishu under the UIC leadership, and the USbacked warlord program was aborted and dissipated. Thus, the political environment of Somalia changed dramatically with the outright victory of the UIC over the warlords and their uncontested power in Mogadishu and the surrounding regions. Nevertheless, the jubilation of the UIC was also short with the impasse of the peaceful dialogue in Sudan and escalation into a total war participated by the Ethiopian military with tacit US support. The UIC was defeated within a short time in the Christmas Eve of 2006, and a new round of resistance against Ethiopia began with various forces of different agendas. After the defeat of the UIC, oppositions gathered in Asmara, the capital city of Eritrea, and Alliance for the Re-liberation of Somalia (ARS) was formed in September 2007. Moreover, it also encouraged reconciliation between the TFG and ARS held in Djibouti in 2009, which finally produced new TFIs that combine former TFG and ARS. However, the precipitate reconciliation process sponsored by the United Nations proved ineffective, and TFIs remain dysfunctional under the protection of African Union Mission in Somalia (AMISOM). On the other hand, AlShabab, an extremist group ideologically affiliated with Al-Qaida, is in control in most regions of southern Somalia and extends its terrorist attacks to Uganda, threatening other African countries that are contributing troops to Somalia security mission. In conclusion, in the south-central Somalia, history of the major HRs violation after the collapse of the state in 1991 could be summarised as follows:

24

The alliance consisted of 8 Mogadishu based warlords. See “Somali warlords hold 'secret anti-terrorism' talks with US agents: witnesses", Agence France Presse, February 28, 2006.

9

1. 1991-1992- the collapse of the state and outbreak of the civil war and famine causing 20.00030.000 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
In scholarly debates, TJ was defined in many ways by scholars belonging various academic fields that evolved with the change of time. Early scholars narrowly defined TJ in the process of laying foundation of the international law. This early attempts were exemplified legal development during World War II trials of Nuremberg and the Tokyo. The second generation of scholars focused mostly on the development of restorative mechanisms as well as innovative tribunals.25 Certainly, during these two periods, TJ was approached from the Western perspective and multi-cultural global communities in the southern hemisphere were not considered much. However, drawing from post-modern schools of thought, new scholarship moved towards looking more comprehensive perspective and accounted for different cultural aspects of various nations. Among these scholars is Roht-Arriaza who defines TJ as “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,
25

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.

10

from changes in the criminal code... to tackling the distributional inequities that underlie conflict.”26… It is worth comparing Roht-Arriaxza definition with the definition by international organizations such UN. The United Nations definition define 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”.27 Other definition adopted by 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 RHs abuses. These measures include criminal, truth commissions, reparations programs and various kinds of institutional reforms”. 28 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, what forms of justice system should be applied depends on the localities considering what make communities at peace with itself and prevents recurrence of violence. Besides national and internal laws dealing with Justice, Muslims have particular legal system prescribed in its basic sources: Qur'an and Hadith and exhaustively illuminated by Islamic jurists and scholars in their voluminous legal jurisprudence " Fiqh". Moreover, every community has some sort of customary law accepted and respected by the individual members of the community. Thus, multiple legal system consisting of local Xeer, Shari'a law, national laws and International law often cross-cutting are available in Somalia. Conception of TJ in the Traditional Xeer The traditional legal system in Somalia is a combination of Shari’a and Xeer (local customs), which vary slightly from community to community. In the traditional society, clan elders stand for the implementation of the local Xeer, while Islamic scholars are responsible for rendering religious aspects of law and related services. Therefore, at the community level, Somali people employ parallel legislations: the Shari’a and local Xeer. Moreover, Somali people are Sunnis
26

Naomi Roht-Arriaza, “Chapter 1,” Transitional Justice in the Twenty-First Century, eds. Naomi Roht-Arriaza and Javier Mariezcurrena (Cambridge University press, 2006), 2. 27 Annan, K., UN Secretary-General, The Rule of Law in Conflict and Post-Conflict Societies, NY: United Nations, 2004, 4. 28 See this definition from http://ictj.org/about/transitional-justice ( accessed on June 11, 2013)

11

who adhere to traditional Islam, which consists of Ash’ariyah theology, Shafiyah jurisprudence and Sufism.29 Shari’a has been accepted and partially implemented in Somalia throughout its history. However, with the dominance of colonialism, 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. Thus, three crosscutting sources of laws are competing each other in Somalia: Xeer, Islamic Shari’a and secular European laws.30 Somali customary law had both restorative and retributive justice mechanisms. Communal violence are not resolved through courts, but are settled by an Alternative Dispute Resolution (ADR) body through Traditional Elders (TE). The role of TE is to seek ways in repairing damages caused by clan violence and other crimes that occurred between members of their respected clan members such as bodily harm and material damages. Through traditional Xeer and tedious deliberations between TE of the both sides of the conflicting clans decisions are made on how to redress injustices through retribution and 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 gives mild responsibility to the individual perpetrator. This notion, of course, belittles individual responsibility for the crime and encourages impunity within society. Restorative justices that exist in Somalia includes 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 certain extent from society to society depending on their cultural values that influence their notion of justice. This
29

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. 30 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 were to a certain extend considering the Islamic faith of the
Somali people.

12

doesn't mean however, that there are no universally accepted justice principles that are one and the same in all or most of the cultures. Exploring conception of TJ among Somali population, it was evident that it is very much blurred as demonstrated the lack of agreed terminology for TJ in the Somali language. Because its unpopularity, only three enters for TJ in Somali language were found in Google search engine.31 This observed fact indicates that modern concept of TJ is not well articulated in the Somali mass media and even among Somalist academic circles. To further explore this notion, I have posted a question in my Facebook page requesting to come up with Somali terminology of TJ.32 More than 50 individuals participated in the discussion have proposed 13 different terminologies.33 Analysing and short listing these terminologies it was discovered that "Cadaalad" (justice) which is originally borrowed from Arabic word of "al-'Adalah" is commonly accepted and fairly used. The Somali original term of "Garsoorka" coined from compounded word of "gar" which means "something right" and "soor" meaning to provide was also proposed by many. The term of "Garsoor" literally signify "providing rights to someone" corresponding the meaning of judiciary, magistrates and judge. That is why "Garsoore" is the terminology coined for the judge and jurist. However, in the Somali language the word of "cadaalad" and " garsoor" often are used interchangeably by the public and in the mass media as well as the English words of justice, law and judge.34 Therefore, the generic term "Cadaalad" offers the true meaning for justice. Moreover, exploring the first part of the terminology of TJ which is " transitional" in the
31

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).
32

See replies of the participants available from https://www.facebook.com/abdurahman.baadiyow ( posted in September 4, 2013). The question was posted 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?
33

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.
34

http://www.thefreedictionary.com/justice

13

Somali language, "kalaguurka" (transition or change) and " kumeelgaarka" (interim, provisional, temporary and transitory) are used.35 It is clear that the tern " kumeelgaarka" is not suitable here since it demonstrates " interim justice, provisional justice) while " kalaguurka" corresponding transition is the right word.36 However, for clarity of the terminology, adding "xilliga" which means "the time" offers special test and nuanced meaning. Therefore, the term of "xilliga kalaguurka" (the time of transition) gives better meaning. Finally, Somali terminology for Transitional Justice will be definitively used as "Cadaaladda Xilliga Kalaguurka" in this research. In the current Somali context, there is no clear national policy on pursuing transitional justice at national level and there is no specific institutions established for that purpose. The well articulated form of resolving conflicts are known as reconciliation (Dib-uHeshiisiin) which is one of the important components of TJ. Provisional Federal Constitution (PFC) stipulates promotion of HRs and establishing Human Rights Commission. Article 4 of the PFC, the founding principles affirms that it promotes HRs and the rule of law while article 39 indicates procedures to redress violations of the HRs. Moreover, the establishment of the independent HRs Commission is required in the Article 41.37 Finally, even though there is growing awareness about the role of TJ, there is no mechanism laid for that purpose yet at the national level. Conception of Shari 'a among Somalis Islamic Shari 'a has been partially implemented in Somalia throughout its history and modern call for its application is in reaction to the secular tendency of the modern Somali state. It aims for more Islamization of the society as advocated by various Islamic movements. This trend is manifested in the constitutions of Somaliland and Puntland, as well as in the Provisional Federal National Constitution. It is attention-grabbing to note that Somalia had experienced three constitutions (1960, 1979 and 1989), two charters (2000, 2004) and one Provisional
35 36

http://www.yourdictionary.com/temporally 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 the same meaning the Somali term of "kala-guurka" indicates passage from one situation to another. 37 Somali Provisional Constitution . Available from http://unpos.unmissions.org/LinkClick.aspx?fileticket=RkJTOSpoMME=( accessed on 12 September, 2013.)

14

Constitution (2012). All these national statutes consider Islamic principles as the ultimate reference of the laws of the land except the constitution of the military regime enacted in 1979.38 However, besides doctrinal conception of Shari' a, which is situated in the area of interest of scholars, our attention is focussed here to explore conception of Shari 'a among nonexperts of Islam obtained through sample interviews. Somali cosmology is substantially influenced by the Islamic Shari 'a concepts of justice. Islamic perspective of justice has been addressed in its basic sources of Islam: The Qur’an and Hadith, and the science of jurisprudence (Fiqh). For instance, the following verse from the Qur'an offers 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 numerous verses in the Qur’an laying the foundation of the concept of TJ. The vocabulary of “rewarding evil by evil”, “forgiveness”, “reconciliation” and “patience” are the core TJ mechanisms. Thus, the concept of justice in Islam is rooted in the divinely revealed laws termed as Shari’a which is obligatory and binding on all believers.39 A model of application of TJ in Islam is construed from the event of conquering Makkah (the holly city in Saudi Arabia) and methodology used by the Prophet Muhammad which consisted four mechanisms: general amnesty, criminal persecution, individual forgiveness and institutional reforms.40 How Somali public conceptualize Shari'a? most of our interviewees had simplistic understanding of Shari 'a from legalistic perspective that confines it to " Hudud Punishments".
38

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.
39

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).
40

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-JusticeEdited1-Doc. ( accessed on June 14, 2013), 19-20.

15

However, Hudud punishment is part of the Islamic laws ordained by Allah used as deterrent
punishments for serious crimes. Interviewee (#27) 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 of the children, they should not sit in the parliament". While Muslim scholars provide various interpretation of Islam through methodologies, various legal schools were developed and mechanism of " Ijtihad" still remains intact as 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 which was influenced by the patriarchic culture of pastoral societies. Other interviewee (#21) expresses general conception: "For me Shari 'a is simply to follow the Qur'an and traditions (sayings and actions of the Prophet Mohammad) while (#11) states: " Shari' a to stone adulterers, to give alms, to pray and to fast the month of Ramadan and make pilgrimage". This interviewees combine "Hudud" punishments and performing the four essential pillars of Islam. Moreover, other interviewee through Facebook explains that "Shari' a is not to begin amputating limbs of the poor, sick, hungry and ignorant people. So, public education is prerequisite prior to the implementing Shari 'a". Furthermore, another commentator of the Facebook consider that "Shari' a is not anything except to prevent aggression, to detain the aggressor, to help victims of the aggression and do so, we must have executive power". Thus, most of the interviewees conception is fixed in specific elements of Shari 'a and mostly relate Shari 'a with Hudud punishments in one way or another. The comprehensive meaning of Shari' a that aims to regulate all human activities such as morality, values, social relations, economic activities and politics, is definitely absent from the conception of the general public. In conclusion, this section examined briefly various definitions of TJ from narrow definition to widely definition that accounts for different cultural aspects and mechanisms. The new scholarship trend of TJ is to consider locality and cultural differences of the global communities. In the Somali context, conception of justice from the Islamic prospective is very crucial as from the local traditions based on the customary law known as Xeer. While TJ of Islamic perspective is a field under development, this paper aims to further scholarship in discovering Somali conceptions of TJ through sample interviews.

16

Research Note and Methodology
This research was conducted in Mogadishu where we can find all personalities in South Central Somalia who were either victims, perpetrators or bystanders of the massive HRs abuses since 1991 and up to now. Three well qualified research assistance were recruited and were selected for their clan affiliations, qualifications and connection with various clans and regions in the Southern Somalia. Two assistances were from Mogadishu and one from Baidoa region. I held one day familiarization and planning sections with them in March 17, 2011. We designed the research and they divided the tasks equally (10 persons each researcher that include different age groups, genders and education backgrounds). They began working in the month of April and finalized first collection of data within the month. In May 2, we have a meeting to review the preliminary findings and to make the analysis. We discovered the need for more interviews to increase the number of females and to increase the number of above 40 of age. To include more direct participants of the civil war “ big fishes” using innovative methods of interviews ( inviting them for a dinner and engaging them with an open and friendly discussions).

The research objective is to document and analyze predominant ideas about and conceptions pertaining to dealing with past mass violence and gross HRs violations among Somalis in Somalia. The population of interest for this study is all adults who were present in south central Somalia between 1991 and 2010. The sample interview is set to be 30 individuals designed to encompass and give due consideration to gender, age and clan belonging in order to make the research more representative and comprehensive. On average, study participants were 35 years old and informal education of 60% and formal 40%. The majority of participants (70%) were male. Research method used is individual interviews using predesigned set of questionnaires developed and agreed among participant researchers. The core questions include personal background, experiences of injustice and/or violence that the interviewee ever was exposed and witnessed, and reason for that violence. Moreover, the interviewee is asked what steps had been taken to deal with the violence by legal or customary proceedings and its

17

implications. Finally, the interviewee is requested to express his personal opinion on how to deal with the experienced injustice among four available menu of systems of justice such as Somali customary law (xeer) and/or shari’a, national laws or international law.41 Selected individuals for the interview have to fulfill following three conditions. First, they must be present or proximate to one or several of the events as a victims, perpetrators and bystanders. Second, they must be old enough to have some experience of one of the events. Finally, they must be aware of what has happened after the event. The interviews are conducted in the Somali language in " one -to-one" approach to collect confidential individual case histories. This research benefits from place-based approach to TJ presented by Shaw and Waldorf. 42 TJ practices work under assumed universal conception based that truth telling leads to reconciliation, prosecutions bring closure, and justice prevents the recurrence of violence. But because of the 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 put forth more locally responsive approaches to social reconstruction after mass violence. In this approach, local does not necessarily oppose national or international; everything comes together in a particular locality which then is taken as starting point to engage complexities regarding TJ – e.g. contradictions between various conceptions of justice of the people in a given place and of international in applying place-based approach, the research accounts for differences in Xeer or Shari’a in various locations within Somalia providing nuanced approach to TJ.

Horrible Memories of Injustice and/or Violence/Conflict
This section exposes 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 are indiscriminate murdering, assassinations, rape and revenge killing. Atrocities experienced and painful memories cause wide ranging psychological, behavioural and medical problems in addition to its social, economical and
41 42

See questionnaires of the research in the attached appendix Rosalind Shaw & Lars Waldorf (eds.), Localizing Transitional Justice: Interventions and Priorities after Mass Violence. (Stanford University Press, 2010).

18

political implications. 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 experience of some form of trauma, there were no institutions that offer therapeutic treatment and trauma were dealt with mostly through traditional means of coping mechanisms.43 These traditional coping mechanism mostly is derived from the Islamic cosmology based on the belief that disastrous events occur in the will of God. Consequently, Muslims must accept whatever happens to them, seek the help of Allah through supplications without eschewing other available medical and social assistances.44 The concept of trauma is not well known for the majority of the Somalis as our field research indicates and according to a research conducted in one of the Somali communities in UK. "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."45 Let us now look into various narrations of a number of selected interviewees among 30 respondents.

43

There numerous traditional coping mechanism employed in Somalia. The most important among these mechanisms is reciting Qur'anic verses by traditional Islamic scholars which offers solace to the victims and sick individuals. In addition to that various supplication procedures by relative and friends are also part of these traditional means. 44 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) 45 Northampton-Shire Somali Community Association, Dhaawac ama Waxyeelo Maskaxeed, a Report on PostTraumatic 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-communitynorthampton.pdf ( accessed on August 5, 2013), 47.

19

According to interviewee (#1), one of the most painful narration obtained from former member of Somali United Congress (USC) militia exposes a tale of a father inheriting sex slave from his son. He said: “I was one of the early members of USC militia who started guerrilla war against Somali government. I fought from the Somali-Ethiopian border and until we captured Mogadishu. During the civil war everything were destroyed and surviving militia members were desperate and unemployed. Most of the former militia members died in the war and surviving among them were scattered. In April 1994, I decided to visit the house in which I heard that one of my former colleague lived in the old district of Mogadishu-Hamarweyne. I was desperately in need of his financial assistance. When I knocked the door of his residence, suddenly, a chained white Banaadiri women in her 20s opened the door.46 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? whispering she replied: He died very recently in the war in Bay Region few months ago. Then, she began to tale 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 one of 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 she was his sex slave too." Suddenly, while she was talking to me, I heard something noisy that resample somebody making path. I asked her who is now with you? She replied: she 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 Muslim country like Somalia, I quickly left the house”. Indiscriminate killing and house grabbing was reported according to interviewee (#5). This story was narrated by one of the former USC militia who was among those who entered and captured Mogadishu from the government forces in 1991. Narrating this tale, he said: “One day, I met a former colleague of mine who was very active militia of USC in its early formation in Ethiopia. The time was 1994 when Mogadishu civil war receded. I did not saw my friend after we have entered Mogadishu in late 1990 and the collapse of the state. I asked him: my friend
46

The Benadiri race traditionally live in Mogadishu districts of Shangani and Hamarweyne, Merca, and Barava. They are early founders of Mogadishu and trace their origins to Arab, Persian, and Cushitic people. They could be identified by their lighter skin than the majority of other Somalis. See Lee Cassanelli, The Benaadir past: essays in southern Somali history. University of Wisconsin, 1973.

20

what do have benefited from USC struggle? “ maxaad ka faaidaysatay halgankii USC”? we started sharing stories after stories and finally he took me to a beautiful two story building and showed me around. His family and relatives were living there. It was well furnished house which most likely belonged to a wealthy family or high ranking government officer. He told me: look my friend, I have benefited from our struggle 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 to 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 about the atrocities of Al-Shabaab insurgency, the militant Islamist group who controls large swathes of the southern parts of the country. A narrator explains the worst violence he experienced when explosion shocked the truck in which he was traveling in 2009 in the road between Afgoye and Merca.47 He said: 9 persons were injured including myself. I was injured badly and parts of my body had been completely removed. The area of explosion was under the control of Al-Shabaab and 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 making such atrocities. The injured individuals were taken to Mogadishu Hospitals. Nothing could be done about those responsible for the violence. Interviewee (#10) narrates about a revenge killing among clans, a well known tradition in Somalia. A widow narrates her story on how her husband was executed. She said: my husband was murdered between Garbahaarey and Buur-dhuubo in the Gedo Region in 1997.48 Al-Itihad, an Islamist militant group, took over the control of Gedo region after the collapse of the state in

47

Merca is a historical coastal town and the regional capital of Lower Shabeele and located about 110 km south of Mogadishu while Afgoye is a district of Lower Shabeele region which located 30 km south of Mogadishu. 48 Garbahaareey is the capital town of Gedo region in Somalia and Buurdhubo is one of its districts.

21

1991 and established their version of Islamic compliant administration.49 However, they were surprisingly defeated by an alliance of clan militia and Ethiopian defence forces. Some subclans 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. Killing of my husband had instigated fight between his clan and the clan of the militia that shot him. My husband was a well respected and famous person and his murdering was considered a great humiliation to his clan. Therefore, according to clan tradition, he should be revenged for. 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 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 witnessed killing and rape. He said: my brother was killed and his wife was raped in front of me and my young brothers in Singaler, 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 for flaring a war there. The street we were traveling was moody and it took us many days to travel. Unfortunately, our car was broken at Singaler 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. In the next night, while we were waiting someone to save 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 our clan belonging and began to threaten us pointing their guns towards us. " they shouted do not move" and dragged the wife of my brother a way. When my brother started to resist then they simply fired five bullets in his chest and raped the his wife. They did not fire on us because the
49

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)

22

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 few hours and took the car and all our belongings. The unconscious wife of my brother was left alone in the nearby jungle and scared were we remained there alone. In the next morning, individuals from our clan arrived and we were saved from immanent starvation. No action was taken to deal with this atrocity even though perpetrators were identified. Interviewee (# 6) tales about her husband murdered while attempting to cease fighting between two of his relative militia. She said: my husband and I have 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 relative militias. He was intentionally shot by one of his relative militia. 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 travelling as his routine work requires. My last contact with him was the morning he was murdered on Tuesday and 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 a well of Allah and we have to accept and be patient. Interviewees (# 8) speaks on his personal experience of intrigues involved his clan and others during 2004. He narrates that he has 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 to sleep and I was shocked and traumatized. My clan invited the clan of murdered boy and we could not convince them that it was unintentional killing and therefore, they have to accept blood money (Diyya). This incident occurred after the emergence of clan-based Islamic courts. Thus, after days I was detained by one of the Islamic courts and I was 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 boys was trying to take me out of the prison and kill me. Finally, the court offered verdict that the case premeditated murder and I have to be executed. My clan considered the ruling of the court to have been motivated by

23

clan attachment to the murdered boy. In the night before the morning of my execution, a militia belonging to the clan of my mother attacked the prison and took me out. The clan of the boys 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 negotiation. 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) narrates road robberies and indiscriminate killings. He said: The road between Mogadishu and Kismayo is 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 this area have 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 two passenger girls and rapped 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 deaths and received preliminary healthcare service. Interviewee ( #21) reported a murdering of international employee of one of the NGOs. Narrating 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 run 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 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.50 However, the
50

There are various legal disagreement on what to do when a Muslim kills 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 the killer Muslim isn't not killed for non-Muslim, the conception which is familiar in Somalia.

24

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 analysis of research findings summarized from the interviews of 30 individuals. Categorizing types of violence, the research discovered that 17/30 interviewees reported that the type of violence experienced/witnessed are murder/ target killings/ random killings/caught in crossfire. The second category of violence was rape and forced marriage where 4/30 respondent witnessed. This section examines who was directly responsible for these violence and reasons behind them. Moreover, it looks if these violence was dealt with and how the issue of accountability for the crimes, major stakeholders for solving conflicts, possible differences of understanding between genders and generations and if Transitional Justice is known among Somalis.

Exploring who was directly responsible in the violence, findings demonstrate that marauding clan militia was responsible as 8/30 interviewees have claimed. On the other hand, 7/30 respondent considered Ethiopian forces who intervened Somalia in 2006 to be accountable for crimes while 11/30 respondent believe that Al-Shabaab insurgency was responsible for the violence and crimes. Government soldiers were less responsible for the violence and 4/30 point their finger to them. Finding of this research indicates that Al-Shabaab were the prime cause of violence and Ethiopians were placed in the second rating. In reality, however, this finding simply indicates that majority of interviewees were young generation who witnessed mostly violence during the emergence of the Islamic Court Union in 2006 and subsequent Ethiopian intervention.51 Also, it is fair enough to affirm that gross violations in the period of 1991-2000 was mostly involved clan militia belonging to various warlords. Moreover, other mass violence occurred between Al-Itihad Islamic organization and other clan militias in addition to sporadic Ethiopian incursions in the border regions with Somalia. Furthermore,
51

Islamic Court Union was the union of clan based Islamic Courts in Mogadishu who militarily reacted against alliance of the warlords in 2006 and defeated them. They combined divergent ideological forces and were later broke up into various groups. One of their component is Al-Shabaab, al-Qaida affiliated organization in Somalia.

25

intervention of the multinational forces of UNISOM (1992-1995) also caused gross violations of HRs in particular in its confrontation with General Aidid militia in October 3, 1993.The ordeal left 18 American men dead, 70 wounded and 3,000 Somalis casualties ( deaths and injuries). Indeed, this war was immortalized in the famous "Black Hawk dawn" Film.52 Responding to the question regarding reasons behind mass violence, half of the respondents 15/30 interviewees consider the civil war to be the real cause while 9/30 of the respondents believe lawlessness and lack of government institutions is behind mass violence. This statistics indicate that half of the violence is motivated as a conflict between contending civil war groups and their militia while one third of the conflict was caused simply because of the absence of the law enforcement institutions dealing with public disorder and absence of preventive conflict resolution mechanism. In addition to that, 27/30 respondents concurred that these violence were not addressed yet through available customary or Shari' a law let alone state or international laws. As a result, the terrible impact of the conflict continues causing enormous psychological, social, economic and/or political implications that remain in the memory of victims perpetually. For instance, 12/30 respondents reported loss of properties and there are no reliable institutions or court system to address this thorny issues appropriately. Loss of properties is not only confined to consumable properties but also include other irremovable properties such as houses, agricultural firms and lands. Many of these properties belonging mainly to certain clans and still remains in the hands of militia of other clans. This phenomena is very well prevalent in Mogadishu. The implication of loss of property is huge and complex. Implication of the gross violation of HRs is so severe that most of the families and individuals displaced from their homes in Mogadishu are still fearing to return to their homes resided or confiscated by other individuals belonging to other communities. This situation creates mistrust among various communities to participate freely in the reinstituting the national state. On the other hand 7/30 interviewees reported loss of dignity which means rape and forced marriages. The implication of the loss of dignity is unbearable specially for the Muslim women in the conservative Muslim countries. Most of the cases are not reported in fear of shame and social
52

Black Hawk Down is a 2001 American war drama film 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.

26

stigma. For example, in the annual human rights violation report compiled by Peace and Human Rights Network in Mogadishu reported only six rape cases.53 A women which is a victim of rape is socially stigmatized and may not be married or may lose its marriage because of the shame culture in the traditional Muslim societies. This shame may even transcend to its family and children constituting a live long stigma instigating hostility and never-ending revenge. How to deal 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 of the lost properties while 6/30 interviewees were adamant not to forget and strongly believe to revenge against perpetuators of their agony. The overwhelming belief to deal past violence with forgiveness may be related to the deep Islamic influence in the cosmology of the people as the following verse from the Qur'an emphasises: “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). On the other hand, revenge killing is the foundation of the clan culture based on common responsibility of the clan for committed injuries. This culture emanates from common security pact among clan members and their responsibility to protect their members. From this point of view clans collectively pay blood money as a compensation for the damages/ injuries and lives lost termed " Diya" which is part of the customary law and also is derived from Islamic Shari 'a law. The less believe in revenge also indicate the influence of the urban culture of interviewees and Islamic norms relative to weaning of the solid pastoral revenge culture. On the personal accountability of the violence/injustice half of the interviewees 15/30 responded positively. This is also another indication of the growing influence of Islamic cosmology, urban culture and even the effect of the awareness program of the numerous civil society organizations and peace movement groups.54 On the other hand, 6/30 of the respondents declared that they do not believe personal accountability which means they still
53

See Peace and Human Right Rights Network (PHRN) Annual Report from July 2010- June 2011submitted on September, 2011. 54 Since 1992, various human rights organizations and many civil society organizations. The most famous among them in Mogadishu are Ismail Jumale Human Rights and Elman Human Rights.

27

believe collective responsibility of the clan members to the crimes committed. The concept of the collective responsibility of the crimes is part of Somali pastoral clan culture. Thus, comparing 6/30 interviewees believing on revenge killing with 6/30 of not believing personal responsibility of the crimes, 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 has topped the interviewee's opinion as the prime stakeholder receiving 11/30 respondents vote whereas the role of the Islamic scholars received only 6/30. Thus, total local stakeholders amounts 17/30 respondent's vote. On the other hand, the role assigned to the government is limited to 9/30 of the interviewees while International role is seen marginal and receives only 4/30. Comparing this data with the views of the relevant legal norms that come to respondent’s mind when they are thinking about the issues, Shari 'a gets lion's share of 15/30 while customary law gets only 3/30. This means that a total of 18/30 of the interviewees prefer local and traditional legal norms of Islam and tradition. the narrowing role of customary law and widening preference of Islamic Shari 'a indicates the impact of the modern Islamic movements in Somalia that have been advocating Islamic Shari 'a since the last decades which have grown to prominences since the collapse of the state in 1991.55 On the question stipulating the existence of 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, 15/30 respondent answered there are differences while 9/30 believe no substantive difference. The different understanding between genders may be related to the

55

Modern Islamic movement in Somalia was growing since 1960s and affiliated mostly to Egyptian Muslim Brotherhood and Salafia of Saudi Arabia. The two most prominent organizations among these movements are Islah and Al-Itihad (Itisam) movements. 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-jumpfull&object_id=103487&local_base=GEN01-MCG02 (accessed on August 5, 2013).

28

level of education which is very much low in women compared with men.56 On the other hand, different understanding between generations also could be correlated with the level of education which is comparatively high in the new generation and may be associated with their growing interest and connections with modern social media.57 Turning to our original questionnaires if the meaning of traditional justice is familiar, known or heard in the South-Central regions of Somalia? this research demonstrates that overwhelming majority of the Somalis ; 21/30 respondents are not informed what is called Transitional Justice and only 6/30 claimed to have heard about it. This great number of uniformed individuals does not necessarily means they are not aware of some mechanisms of TJ such as elements of retributive and restorative mechanisms. These elements are parts of Islamic Shari 'a law and also are entrenched in the Somali customary law. It simply means that they are not aware of TJ as a holistic approach and subject matter dealing with mass violations of HRs in the modern conception of the terminology. However, most respondents are familiar with are the International Criminal Court for Rwanda genocide in Arusha, Tanzania and South African Truth and Reconciliation commissions. These two events have been well articulated in the mass media. Tailoring known TJ mechanisms of Rwanda and South Africa with possible approach to Somali context, 10/30 respondents prefer the Rwanda option while 6/30 regard South African option is relevant for Somalia. Even though, this result is in variation from the data that 18/30 of the interviewees preferring traditional options, however, both Rwanda and South African TJ mechanisms incorporate elements of traditional approach besides modern international and national laws.

56

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). 57 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 whom are young generations live in the Diaspora and excessively use social media.

29

Conclusion
This field research was conducted in Mogadishu in 2012 and participated by 30 selected individuals to discover the type, magnitude and mechanisms of addressing HRs violation that occurred in South Central Somalia after the collapse of the state in 1991. These violations intensified in 6 periods. The first period is in (1991-1992) after the outbreak of the civil war where more than 330.000 deaths, hundred thousands of injuries and loss of properties were reported. The second period is (1992-1995) with the international intervention of UNOSOM. The third period is (1995-2001) characterized with low intensity various warlord conflicts. The fourth period is 2001-2006 in which the Global War of Terrorism started and subsequent emergence of Union of Islamic Court. The Fifth period is Ethiopian military intervention in 2006 and following local resistance. Finally, continuation and intensification of the conflict between AMISOM and Somali forces on one side and Al-Shabaab insurgence on the other. The finding of the research demonstrates that overwhelming majority of the gross HRs violations that occurred in South-Central Somalia are murder, target killings, random killings, caught in crossfire and rape. Moreover, 27/30 of these violence was not addressed yet and besides loss of lives they had caused loss of properties. However, the readiness for peace and reconciliation is very high whereas majority of the victims are prepared to forget and forgive and to accept some compensation of the loss properties. Furthermore, even though Somali clan culture of collective responsibility for the crimes remain intact, this research indicates that more than a half of the respondents believe individual responsibility for the crimes. Finally, traditional stakeholders in addressing past injustices take precedence over modern mechanisms and majority of interviewees prefer implementing Shari 'a legal system. Their conception of Shari' a is legalistic founded on Hudud punishments. After all, modern conception of TJ is missing among most of the population and if heard is confined to small educated elites in Somalia. The lack of Somali terminology for TJ testified paucity of public debate on the issue. Finally, most elements of internally accepted norms of TJ mechanisms can be found in the Somali customary law and Islamic Shari 'a and place-based approach can reconcile all forms of legal systems.

30

Bibliography

Abdullahi, Abdurahman. "Penetrating Cultural Frontiers in Somalia: History of Women‘s Political Participation during Four Decades (1959-2000)".‖ African Renaissance 4, no. 1 (2007): 34-54.
Abdullahi, Abdurahman. “Recovering the Somali State: the Islamic Factor.” In Somalia: Diaspora and State Reconstitution in the Horn of Africa, edited by A. Osman Farah, Mamo Mushie, and Joakim Gundel. London: Adonis & Abby Publishers Ltd, 2007: 196-221.

Abdullahi, Abdurahman. "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-JusticeEdited1-Doc. ( accessed on June 14, 2013). Abdullahi, Abdurahman. "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 from http://digitool.library.mcgill.ca/R/?func=dbin-jumpfull&object_id=103487&local_base=GEN01-MCG02. Abdi Osman, Hussein. “Malaf al-Sarā‘ beyna ‘Ali Mahdi wa ‘Aidīd”. Unpublished paper submitted to the Horn of African Center for Studies, Mogadishu, 1993. Annan, K., UN Secretary-General. The Rule of Law in Conflict and Post-Conflict Societies, NY: United Nations, 2004. http://ictj.org/about/transitional-justice ( accessed on June 11, 2013).
Bradbury, Mark. Becoming Somaliland. London: Progresso, 2008.

Bradbury, Mark. The Somali Conflict: Prospect for Peace. An Oxfam Working Paper, 1994.
Barnes, Cedric, and Harun Hassan. "The Rise and fall of Mogadishu‘s Islamic Courts."‖ Chatham House Briefing Paper, April, 2007. ( AFP BP 07/02).

Cassanelli, Lee. The Benaadir past: essays in southern Somali history. University of Wisconsin, 1973. Drysdale, John. Whatever Happened to Somalia? HAAN Publishing, London: 1994. Glanville, Luke. “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).

31

Gadid, Abdi, "Yaan laga Tegin Cadaaladda Danbiilayaasha ma yaro". Available from http://www.qubanaha.com/2012/08/16/yaan-laga-tagin-cadaaladda-dambiilayaasha-ma-yarofaalo-xiiso

Kenneth, Rutherford. Humanitarianism under fire: The US Intervention in Somalia. Kumerian Press, 2008. Kapteijns, Lidwien. Clan Cleansing in Somalia: The Ruinous Legacy of 1991. Philadelphia: University of Pennsylvania Press, 2013 International Crisis Group. Somalia’s Islamists (Africa Report N°100 – 12 December 2005), available from http://www.crisisgroup.org/~/media/Files/africa/horn-ofafrica/somalia/Somalias%20Islamists.ashx. Lewis, I. M. A Modern History of Somalia: Nation and State in the Horn of Africa. London: Longman, 1980. Lyons, Terrence, and Ahmed I. Samatar. Somalia: State Collapse, Multilateral Intervention, and Strategies for Political Reconstruction. Washington DC: Brooking Occasional Papers, 1995. Mire, Hassan Ali. “On providing for the future” in edited Ahmed Samatar, The Somali Challenge: From Catastrophe to Renewal? London: Lunne Rienner, 1994. Northamptonshire Somali Community Association. Dhaawac ama Waxyeelo Maskaxeed: A Report on Post-Traumatic Stress in the Somali Community in Northamton and their experiences of Health Service, 2008. Available from http://www.nmhdu.org.uk/silo/files/post-traumaticstress-disorder-in-the-somali-community-northampton.pdf ( accessed on August 5, 2013). Peace and Human Right Rights Network (PHRN). Annual Report (July 2010- June 2011) submitted on September, 2011. Sahnoun, Mohamed. "Somalia: the Missed Opportunities".‖ A paper delivered to the United State Institute of Peace, 1994. Samatar, Ahmed. "Introduction and Overview."‖ In The Somali Challenge: From Catastrophe to Renewal? Edited by Ahmed Samatar. London: Lynne Rienner, 1994: 3-19. Shaw, Rosalind & Waldorf, Lars (eds.), Localizing Transitional Justice: Interventions and Priorities after Mass Violence. Stanford University Press, 2010.

32

Sii'arag, Duale. "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) “Somali warlords hold 'secret anti-terrorism' talks with US agents: witnesses", Agence France Presse, February 28, 2006. 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). The Cambridge Introduction to Narrative. Available from http://community.wvu.edu/~bdb026/306/ch2-defining-narrative.pdf ( accessed on July 10, 2013). The Federal Republic of Somalia. Provisional Constitution, adopted on August, 2012. Available from http://unpos.unmissions.org/LinkClick.aspx?fileticket=RkJTOSpoMME= Terrorist Financing Staff Monograph. "Al-Barakaat Case Study: The Somali Community and alBarakaat." Available from http://www.911commission.gov/staff_statements/911_TerrFin_Ch5.pdf (accessed on August 25, 2010). Roht-Arriaza, Naomi. “Transitional Justice in the Twenty-First Century", eds. Naomi RohtArriaza and Javier Mariezcurrena. Cambridge University press, 2006. Xarakow, Moxamed Cali, "Cadaaladda Xilliga kala-Guurka". Available from http://www.hiiraan.com/op4/2012/july/25249/cadaaladda_xilliga_kala_guurka.aspx Zuin, Margherita. "A Model for Transitional Justice for Somalia." PRAXIS, The Fletcher Journal of Human Security, VOLUME X X I I I – 2 0 0 8.

Master your semester with Scribd & The New York Times

Special offer for students: Only $4.99/month.

Master your semester with Scribd & The New York Times

Cancel anytime.