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Peace talks between the Somalian government and the Islamic courts are scheduled to resume at the end of the month, 30 October 2006. Birgit Michaelis argues that the ordinary Somalis have suffered enough, and says that Islamic courts should bring their judicial procedures into conformity with recognized international and African human rights treaties and standards.

“I do not want to live in Mogadishu” says Ibrahim Sherif Nur, a newcomer to the Dadaab refugee camp, which is located in Kenya's North Eastern Province. It took him 20 days to flee with his family from Somalia's capital to Liboi, a border post on the Kenyan-Somali frontier. Dadaab, a complex of three refugee camps, is already hosting some 134,000, mainly Somali, refugees and at the moment there is a considerable influx of refugees as violence escalates in Somalia. Kenya is cooperating with UNHCR (United Nations High Commissioner for Refugees) and may be forced to set up an additional refugee camp in Dadaab. There are more than 400,000 IDPs (internally displaced persons) in Somalia, 250,000 of them are living in Mogadishu in war-destroyed buildings under pitiful conditions. Most of the IDPs have to beg for food.

Somalis are, by most indices of human development, severely impoverished. Any increase in conflict could create a severe humanitarian crisis in Somalia, according to one United Nations agency. The UN Food and Agriculture Organization (FAO) warned that double the 1.8 million people currently in need of urgent assistance were at risk as malnutrition rates are high in many areas. Like the humanitarian situation the human rights situation is a disaster too. Home to 10 million predominantly Muslim people, the country has been without a functioning government since the former president, Mohamed Siad Barre, was ousted in 1991.

Human rights violations under the regime of Mohamed Siad Barre

The Somali Republic collapsed in 1991 with the overthrow of the Siad Barre government, the disintegration of the state into civil war, the establishment of various and shifting warlord-controlled zones in the south, and the separation of the north-western third of the country. Major General Mohamed Siad Barre’s government originated in a military coup in 1969 after nine years of civilian multi-party government, following Somalia’s independence in 1960. His government was overthrown just over 21 years later, in 1991, by armed opposition forces based in Ethiopia. The Siad Barre government was a military-based, one-party Marxist-Leninist system marked by constant repression of opposition, clanism (clanism particularly refers to clan favouritism in political decision-making and public resource allocation), corruption and economic mismanagement.

The government was responsible for a persistent pattern of gross human rights violations, including large-scale killings by the army in the northwest, culminating in massacres and bombing in Hargeisa in the 80s; systematic torture of political prisoners by the National Security Service; arbitrary and long-term detentions of thousands of prisoners of conscience; grossly unfair trials by National Security Courts; many judicial executions; numerous political killings; and harsh treatment of prisoners in special security prisons. In the northwest in 1991, the Somali National Movement (SNM) force defeated the government forces and declared independence for “Somaliland” from the rest of Somalia, within the borders of the former British Somaliland Protectorate. In the northeast, the Puntland Regional State was declared in 1998 as a future part of a federal Somalia, consisting of two and a half former administrative regions of the former Somalia. [1]

After the state collapse in 1991 clan-based warlords and their armed militias took over and ruled the country until this June. Somalia plunged into chaos and anarchy. Tens of thousands of persons, mostly civilians, have died in interfactional and interclan fighting. The warlords and their militias are responsible for numerous human rights abuses such us kidnapping for ransom, torture, rape, beatings, unlawful killings and crimes such as theft, armed robbery, extortion, cattle rustling and piracy. The warlords’ rule led to infrastructure collapse, refugee flows and humanitarian disaster, which had exceptionally severe effects in this impoverished country. It further caused political instability in the Horn of Africa, which was affected by other armed conflicts and humanitarian and human rights crises.

The formation of the Transitional Federal Government

Numerous efforts have been made since 1991 with varied international support to try to resolve the crisis of state collapse and civil war in Somalia. But none has been successful. In 2000 a peace conference was convened at Arta in Djibouti by Djibouti’s President. The conference elected a Transitional National Assembly, which formed the Transitional National Government (TNG), installed in Mogadishu. The TNG, with a three-year term, controlled only a little part of Mogadishu and did not manage to establish a national system of administration of justice, a national army or police force. Faction fighting continued.

In October 2002 the 14th Somalia peace talks since the state collapse opened in Kenya. The “Somali National Reconciliation Conference” was sponsored by the Intergovernmental Authority for Development (IGAD), an inter-governmental regional grouping in the Horn and East Africa. In August 2004 members of a Transitional Federal Parliament were sworn in and Abdullahi Yusuf Ahmed was elected as President with a five-year term. Yusuf belongs to the original warlord class, which was instrumental in the destruction of the central state.

Several posts in the Transitional Federal Government (TFG) are held by warlords. Still in Nairobi there was a deep rift in the TFG on the future seat of government and a deployment of peacekeeping troops by the African Union. The Transitional Federal Institutions (TFI) relocated from Kenya to Somalia in June 2005. Esteeming Mogadishu too dangerous as seat of government the TFG first settled in Jowhar and later moved to Baidoa.

Most Somalis have a strong desire for a central state but are deeply disappointed with the TFG, which is internationally recognized but does not even have Baidoa under its control. It is divided by disputes and its effectiveness must be questioned. After more than two years the TFG has failed in promoting reconciliation, curbing the power of the warlords and disarming their militias. The executive and judicial branches remain badly underdeveloped and essentially non-functional. The TFG’s omission to establish local administration left a political vacuum. A functioning public administration and judicial system are indispensable for the promotion and protection of human rights and help prevent impunity. Warlords and their militias must be held accountable for war crimes and human rights abuses. Meanwhile, the TFG is perceived within Somalia more as a faction than a national authority.

The rise of the Islamists

After the fall of Siad Barre, Islamists began to argue that the only alternative to clanism and the failed Somali nationalism is political Islam. War weariness, desperation, desire for peace and order as well as widespread poverty seems to have attracted Somalis to join the fundamentalist camp. The state collapse not only created a fertile ground for the emergence and development of Islamic fundamentalism as a major force in Somalia, it also fostered the free movement of extremist and terrorist forces. The country is a refuge for the al-Quaeda team that bombed the US embassies in Kenya and Tanzania in 1998 and a Kenyan resort in 2002.

Al-Ittihad Al-Islami (AIAI), a radical Islamist organization, became prominent in 1991 with the objective of toppling President Barre. Its main goal was to form a strong Islamic state in Ethiopia, Djibouti, Kenya and Somalia, all countries with an ethnic Somali population. In the mid-90s, AIAI initiated attacks in Ethiopia. Islamic courts emerged in the late 90s primarily in Mogadishu and became the de facto judiciary in the capital after the collapse of the government. A Union of Islamic Courts (UIC) was formed from the amalgamation of different clan-based courts, dominated by the Hawiye.

Ideologically, the UIC and AIAI share many similarities as they both have the same radical approach: they want an Islamic state in Somalia governed by Sharia law, sustain a charity wing and the UIC has militias as AIAI once had. The former leader of AIAI, Sheikh Hassan Dahir Aweys, is now the most prominent figure of the UIC representing its hard-line faction.

The takeover of Mogadishu on 5 June 2006 by the UIC was the most important political event in Somalia in the last 16 years. It removed the political class of secular, clan-based warlords, which has divided and ruled the country since the collapse of the central state in 1991. As the UIC continues to spread its influence throughout Somalia, the international community has reacted with concern since there are accusations that the UIC has links with al-Qaeda. In February this year the warlords formed the Alliance for the Restoration of Peace and Counter-Terrorism (ARPCT) backed by the USA with the help of secret funding. The ARPCT clashed with the UIC culminating in a major battle for Mogadishu that led to victory for the UIC in June. The four-month-long strife left 400 civilians dead and 1,500 injured, according to the Dr. Ismael Jumale Human Rights Centre, a Somali NGO.

The UIC is consolidating its power and outside of Mogadishu now controls the provinces of Lower Shabelle, Benadir, Middle Shabelle, Hiran, Gelgedut and parts of Mudug and Lower Juba region. After first gaining the support of Somalis for restoring peace and stability in Mogadishu and ending the warlords’ extortion activities there is now growing fear of the Islamists’ radicalism. Many East African countries consider the UIC takeover of Somalia a threat. Ethiopia strengthened its troop presence on the Somali border.

Eritrea, hostile to Ethiopia, is allegedly supporting the UIC with arms and ammunition. There is a danger that tensions may increase and that a proxy war will take place on Somali soil. The Islamist militia has stressed it will defend the country from Ethiopian forces and is recruiting and training youth in special camps in preparation of jihad (Holy War). The UIC is also opposing a deployment of peacekeepers which had been approved by the AU in mid-September but which is unlikely to be realized due to an UN arms embargo and to lack of funding. On 24 September the Islamists seized Kismayo where the port had been seen as a possible landing point for the peacekeeping force. For the TFG, the takeover of Kismayo was a violation of a ceasefire agreed during peace talks in Khartoum, Sudan, which are mediated by the Arab League.

Human rights violations under the Union of Islamic Courts

The capture of Kismayo, where the UIC had closed down a local radio station and detained three journalists, was followed by three days of anti-Islamist protest. The initial euphoria following the UIC’s victory over the warlords has turned into fear and protest. There are numerous reports of a crackdown on the media. The UIC’s strategy of controlling ideological and political expression also leads to restrictions of the freedom of assembly. On 17 August its forces broke up a meeting in Mogadishu of the moderate Muslim group Al-Islah, which advocates dialogue between the UIC and the TFG. The UIC also curbs non-Islamist sectors of Somali society and bans political meetings.

Islamic guards are stopping minibuses to check women’s clothing and men’s hairstyles. Clothing deemed as un-Islamic is hacked with scissors. In some parts of Mogadishu, cinemas showing foreign films or international football have been raided and closed down and there is a ban on some radio stations from playing western music and local love songs. This level of intervention into private life is not well-received by Somali society. The UIC’s morality policy and the prominence of known militants within its leadership show parallels with the Taliban’s rise in Afghanistan in the 1990s. Like the Taliban the hard-liners within the UIC want an Islamic Somali state where the Qur’an is the constitution and Islamic law, the Sharia, is the only source of legislation.

Sharia laws are derived from the Qur’an, the Islamic holy book, from the writings of renowned Islamic scholars and from the judicial interpretation of these writings. The rules of customary laws in the African context, including Somalia, are contained in the customs and norms of life of the respective communities, but are unwritten. Before the emergence of the Islamic courts no Sharia-based penal or criminal law was part of Somalia’s penal legislation. In recent years, several death sentences have been imposed and carried out by Islamic courts and their militias, although most death sentences have been replaced by compensation negotiated between the clans of the victim and the perpetrator according to Somali customary law.

Omar Hussein was publicly executed in Mogadishu on 2 May 2006. He was tied to a stake, hooded and stabbed to death by the 16-year-old son of the man who he admitted stabbing to death in February. Omar Hussein had been sentenced to death hours earlier by an Islamic court. A large crowd gathered to witness the public execution, with several fainting at the sight of blood gushing from his head. The teenager repeatedly stabbed the condemned person in the head and neck. He reportedly expressed happiness at his infliction of the death sentence in this way. A Sharia law of retribution, (qisas, i.e. ’like-for-like’) was applied in this capital case, after the victim’s family reportedly refused to accept compensation (diya). Such a retribution execution is unprecedented in Somalia and Somali customary law. It is also contrary to Somalia’s former penal code, which would be the basis for court proceedings in state courts. [2]

Another public execution took place in Mogadishu on 22 September this year. Abulkadir Mohamed Diriye and Mahad Osman Ugas, having been convicted of murder, were shot in a public place in the presence of a large crowd including journalists invited to attend the execution. Some of the spectators reportedly vomited after they saw and heard the bullets pouring into the convicts’ bodies. There are also public floggings for selling drugs. On 23 September, for the first time a woman was flogged by Islamist militias for selling cannabis. She was given 11 lashes. Arrested for being in possession of a small amount of the drug worth $1, she pleaded innocence while being beaten. Five men were also whipped, and the seized drugs were burned.

Corporal punishments violate the most elementary standards of humane treatment. Executions constitute the ultimate form of cruel, inhuman or degrading punishment in violation of the most fundamental right of every human being: the right to life. When carried out as a public theatre they can only serve to fuel a climate of violence and vengeance. Amnesty International categorically opposes the implementation of the death penalty, but takes no position on the introduction and application of laws based on the interpretation of religious texts, as long as this is carried out in full respect of human rights principles. These principles include the right to legal representation, the right of appeal to a higher court, the right of a fair trial and the right of those condemned to death to petition for clemency.

The African Commission on Human and Peoples’ Rights has commented on the application of Sharia law: “When national courts apply Sharia, they must do so in accordance with the other obligations taken by the State. Trials must always accord with international fair trial standards”. Somalia is a party to the International Covenant on Civil and Political Rights and to the African Charter on Human and Peoples’ Rights.

Amnesty International calls on the Islamic courts to bring their judicial procedures into conformity with recognized international and African human rights treaties and standards. The human rights organization calls on the TFG to take steps to establish a fair judicial system throughout the country as a fundamental part of the reconstruction of Somalia.

• The author is the country coordinator for Kenya, Tanzania and Somalia of Amnesty International - German section.

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[1] See Amnesty International, Somalia: Urgent need for effective human rights protection under the new transitional government, AI Index AFR 52/001/2005, 17 March 2005, pp. 2 ff

[2] See Amnesty International, Somalia: Child publicly executes father’s killer on orders of summary court, AI Index AFR 52/001/2006, 9 May 2006