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Past Analysis II
ANALYSIS II
Politics of Transitional Justice Mechanisms from Below: The Case of Somaliland
Adam Haji Ali Ahmed
July 04, 2010
This paper will discuss how the design and discourse of transitional justice mechanisms- which include and take into account the views and needs of civil society and affected communities- boost the legitimacy of the transitional process and the prospects for reconciliation. This process could be described as the politics of transitional justice mechanisms from below. The paper will focus on the Somaliland situation as a case study. The paper will explain both the Somaliland alternative dispute resolution (ADR) mechanism and transitional justice as well as analyze in detail how the indigenous ADR mechanism has been used as tool for political transitional justice during the reconciliation period. Lessons learned from the Somaliland reconciliation process will be briefly explained and some critiques and pitfalls of transitional justice in Somaliland will be raised. Finally, the paper will conclude with some recommendations and observations about the usefulness of the traditional and indigenous ADR systems as reference examples for political transitional justice in similar situations around the world.


Somaliland Indigenous Alternative Dispute Resolution Mechanism

Somaliland has a very strong customary law system known as Xeer Soomaali. One of the components of customary law is Alternative Dispute Resolution (ADR) and it lies at the heart of the Somaliland system. The major players of the ADR system are the tribe, clan and sub-clan elders who are known in the Somali language as “Guurti.”

As Mark Bradbury explains:

Prior to colonization Somali nomadic pastoral life was a classic example of a ‘stateless’ society. Unlike ‘primitive state’ societies described by anthropologists elsewhere in Africa (Fortes and Evans-Pritchard 1958), Somali pastoral society is acephalous, with no hierarchy of political units or administrative offices. It is important to appreciate that Somali pastoralist society is not constituted on the basis of centralized institutions, but it is not without governance or rules. Historically, Somali pastoralists lived in what has been described as a state of ‘ordered anarchy’ whereby political order and social relations are maintained through the kinship system, through collective social institutions and through reciprocal, rule-bound behavior delineated in customary law (Xeer).[1]

Somaliland people have been using their own indigenous ADR system for a long time and it continues to be the prevailing method of resolving their internal problems whenever a conflict erupts among them. Mark Bradbury explains the hierarchy of the system:

While clan-families represent the highest level of political solidarity in Somali pastoral society, numerically they are too large to act as collective political units. Amongst northern pastoralists the smallest unit where effective cooperation, political action and collective security are feasible is the diya-paying group [Lewis 1961]. This comprises a number of families who are united through genealogy (Tol) and marriage ties (Xidid) and who are obliged to protect one another and to pay and receive ‘ blood compensation’ (diya) for murder and other injuries. As diaya is traditionally paid in the form of livestock (in the case of murder at 100 camels for a man and 50 for a woman), it provides a sanction against violence and reinforces collective responsibilities.[2]

The strong negotiation and ADR mechanism which Somaliland people have had is one of the most important reasons which enabled them to solve their internal problems. This system allowed Somaliland people to negotiate and reach an agreement, either through mediation or arbitration in a clan based system. An important principle of the negotiation system of Somaliland is that clan elders are not supposed to encourage hostility among warring parties, but they are supposed to negotiate among them. Another principle is the weak group of the society and those who are not involved in the disputes are immune from both sides to harm them during the conflict. As Mark Bradbury explains:

Somali society has strong traditions of mediation, reconciliation and consensus-building alongside customary institutions of law and order, and feuding and warfare in Somali society was traditionally regulated by rules and social conventions. For example, women, children religious leaders, guests, community leaders, the elderly, enemy captives, war wounded, the sick and peace delegates were traditionally immune to attack and were ‘spared from the spear’ (biri-ma-gedo).[3]

Transitional Justice

As the International Center for Transition Justice explains:

Transitional justice is a response to systematic or widespread violations of human rights. It seeks recognition for victims and to promote possibilities for peace, reconciliation and democracy. Transitional justice is not a special form of justice but justice adapted to societies transforming themselves after a period of pervasive human rights abuse. In some cases, these transformations happen suddenly; in others, they may take place over many decades.[4]

Somaliland Indigenous ADR system as a Tool for Transitional Justice during the Conflict and Civil Wars from 1991-1997

In general, transitional justice from “below” is more important and effective than from “above,” because of its inclusive methodology. Community, civil society, and other non-sate actors have a great role to play in transitional justice from below. Transitional justice from below gives an opportunity to those affected by the conflict to get relief and a sense of justice. As Kieran McEvoy and Lorna McGregor explains,

The contributors share a broad interest in the out-workings of transitional justice ‘on the ground’ in the communities or organizations which have been directly affected by violent conflict. In such settings, it is frequently victims and survivor groups, community and civil society organizations, human rights non-governmental organizations, church bodies and others that have been the engine of change. The term ‘from below’ is increasingly used to denote a ‘resistant’ or ‘mobilizing’ character to the actions of community, civil society and other non-state actors in their opposition to powerful hegemonic political, social or economic forces.[5]

Transitional justice from above is the contrast of the ‘from below’ approach, because it does not put into consideration the needs of the actual victims of the atrocities; instead they are ignored and nothing is done for them. Civil society, community organizations, and other non-state actors do not have a role to play in transitional justice from above, because they are not consulted and left completely out of the process. Transitional justice from above is imposed by the government or brokered international and regional organizations like the UN and AU.

The strategic methodology which Somaliland people follow for their transitional justice from below includes the following factors:

a) Ceasefire and Cessation of Hostility Called by Clan Elders and Civil Society:

In 1991, when the military dictatorship collapsed, the clan and sub-clan elders devised a way to escape from Civil War. Some of the clans were supporters for the military regime of the Somali government and other tribes were supporters of the Somali National Movement (SNM),[6] which were against Siyaad Barre’s[7] government and finally ousted.

In that gloomy situation, the clan elders of both sides called a ceasefire between the two sides and encouraged them not to retaliate, especially, those who were in the victorious position, the Somali National Movement (SNM). Fortunately, they accepted and conceded to the request of the clan elders because of the influence and leadership which clan elders have among the community. As the War-Torn Societies Project (WSP) International, Somali Programme explains, “Elders have always played a central role in Somaliland society. But in the aftermath of the civil war, elders have ventured into the political sphere in an unprecedented way.”[8]

b) Negotiation, Mediation and Arbitration process

After the ceasefire had been reached and retaliation and further atrocities had been prevented, immediately a negotiation, mediation and arbitration process was launched by the clan and sub-clan elders to transfer into lasting peace. As mentioned earlier, negotiation, mediation and arbitration and ADR mechanisms are easy for the Somaliland people to initiate because it is part of their culture; so, they did not need any external assistance or interference. One of the main reasons local and indigenous negotiation and other forms of Somaliland ADR succeeded is the lack of interference of the internal affairs of the Somaliland people, neither by neighboring countries or the international community. If external influence had been part of the process, the outcome may have been negatively affected, because external forces have their own agenda and interest. As Bradbury explains:

In Somaliland, state formation has been both a reactive and proactive process in response to internal and external events. It has involved political negotiation between numerous ‘stakeholders’ with varied interests and agendas, including SMN (Somali National Movement), politicians, elders, business people, the Diaspora, women, pastoralists, and neighboring states. In the first decade these negotiations occurred in formal peace conferences, parliamentary debates and other public fora, making for a highly participatory form of politics.[9]

c) Clan and Sub-Clan Conferences as a Conflict Resolution Tool

After the negotiation and other forms of Somaliland’s ADR succeeded, the clan elders and other stake-holders initiated regional conferences which were designed to repair the damage done during the hostility and civil wars. Those conferences[10] started in the regional and sub-regional levels because in each region there are different tribes who live together; so, unless the hostilities among them are ceased, a national conference cannot be held. WSP explains, “Cessation of hostilities in the immediate aftermath of the SMN victory was advanced by the relatively low level of animosity between the Isaaq[11] and other communities.”[12]

Finally, when the clan and sub-clan elders completed the regional and sub-regional conferences and ceasefire was implemented, a national conference was called to be held in Burco. As WSP explains, “a meeting convened by the SNM at the port of Berbera[13] established a formal cease-fire and fixed a date for a conference of the Guurti to be held in Burco[14] two months later.”[15]

d) Unconditional Amnesty

During the Burco conference, unconditional Amnesty was granted to those who committed war crimes and crimes against humanity during the conflict and civil wars of 1981-1991; especially government and military officials who were present during the process of reconciliation. During the conference, it was declared that peace and co-existence were to be embraced.

As you can see from the above discussion, the transitional justice of Somaliland started from below, which means from the sub-clan and sub-regional level. When the transitional justice process was finished, the hostilities among the different clans and tribes in each region reached out in the national reconciliation conference and finally agreed to bury the past and continue ahead to build one nation. As WSP explains:

More than a dozen Garaado, Suldaano and Ugaasyo (titled traditional leaders) representing the Isaaq, the Harti[16], and the Dir[17] Clans, together with their delegations, converged upon Burco. They were joined at the conference by participants from other sectors of society, including artistic, intellectuals, and business people (who provided most of the financing) as well as delegates from the Diaspora.[18]

e) Final Outcome

The final outcomes of the Burco conference included general amnesty among the different tribes and clans of Somaliland, reconciliation between warring parties, the declaration of the Somaliland Republic as separate state independent from other parties of the Somalia, and the armed Somali National Movement (SNM) was given rule of the country for the two years of the transitional period. As WSP explains,

The conclusions of their conference (below) were presented to a subsequent meeting of the SNM Central Committee and endorsed:

· Recompilation of the warring parties to the conflict;

· Declaration of the Somaliland Republic on 18 May 1991

· A Transitional two-years rule by the SNM, and the accommodation of the non-Isaaq communities in the government structure during this period

· Initiation of a separate reconciliation process for the Sanaag[19] region.[20]

As far as reparation for the victims of the war, it was agreed that the different clans and tribes use their customary way to give reparations for victims and their families. During the reparation process tribal elders and leaders represented their different clans and sub-clans, because in the tribal society the leader of the tribe stands and represents the interests of the tribe at large. The reconciliation process enjoyed legitimacy from below, because the individual members took part in the process through the tribal elders and leaders. However, the victims of war may have been marginalized because individual cases were not discussed during the reconciliation process, but instead general reparations were promised by the different tribes.

f) Implementation of the final outcome

When the Burco conference concluded, the outcomes of the conference were implemented by all sides of the conference and till today, the peace and stability of Somaliland is growing and state of Somaliland is becoming viable. WSP explains,

Although the agreement reached at Burco remains the cornerstone of the peace that prevails in Somaliland today, it by no means settled all grievances, nor resolved all differences; it simply terminated active hostilities and created a common political framework. It was then followed by diverse reconciliation initiatives (Farah and Lewis: 1993) that have continued, almost without pause, ever since.[21]

The Lesson Learned from the Somaliland Experience

The lessons which have been learned from Somaliland case can be summarized as follows;

  • The usefulness of the indigenous ADR system as a tool for transitional justice.

  • To solve the root cause of the conflict and attain a lasting peace, it is necessary that the transitional justice should come from ‘below’ not ‘above.’ Because if we ignore the victims of the conflict and other stake-holders, like community members and civil society, a solution will never be reached and conflicts and civil wars will continue, again and again, as far as we do not deal with the root causes of the problem.

  • Every problem has contextual factors; so, only those who create the problem can solve it. For that reason, the parties of the each conflict should be given time and opportunities to solve the conflict between themselves before any external hand is given.

  • Critique of the Somaliland Transitional Justice Process

    One of the most important critique and pitfalls of Somaliland’s reconciliation and transitional justice process is ignoring of the victims of the conflict. Great importance has been given to achieve peace and stability, but victims’ fundamental and human rights have been marginalized and ignored in exchange for the reconciliation process between tribes and clans. Transitional justice should seek a way to establish truth and justice. As Elizabeth Stanley explains, “transitional justice bodies have to find new ways to establish truth and do justice in a manner that does not reinforce political and status inequalities.”[22]

    Conclusion

    Finally, if traditional elders and other customary systems are reinforced and given a chance to play their role, the world would be much better than today, because whenever the root cause is solved, there is no way that conflict can come back again to haunt the same region. But if the conflict resolution mechanisms focus on only modern institutions and conferences for politicians and ignore the grassroots, there will not be durable solutions and reliable outcomes.

    Take an example of what is going on South Somalia (former Italian Somali Part); more than 15 conferences have been held in the neighboring countries, but nothing has been reached and still the conflict is going on and it is worse then before.

    What is the reason? The root causes of the problem have not been resolved and the customs and culture of the people have been ignored. There will never be solution until we support and consolidate the indigenous ADR system of each community and use transitional justice tools.

    As Creative Worldwide explains:

    External initiatives can renew indigenous forms of peacemaking and conflict resolution to restore the balance in society that was destroyed by modern internal war. Such work must rebuild indigenous peacemaking capacity from the bottom up, and from the periphery in. Traditional mechanisms have been less effective in areas where foreign aid resources were heavily concentrated; such aid may have stimulated conflict and undermined local structures and mechanisms. High-profile peace fora financed and organized by external parties may interfere with more than assist in producing plausible settlements, especially if conducted without coordinating with local non-military leaders. At the national or international level, such efforts may require external support, such as logistical assistance, and probably should be accompanied by other actions to prevent the immediate outbreak of violence.[23]



    [1] Mark Bradbury, The Somali People and Culture: Becoming Somaliland (Indiana: Indiana University Press, 2008), 15.

    [2] Bradbury, 16.

    [3] Bradbury , 18.

    [4] International Center for Transitional Justice, “What is Transitional Justice,’ ICTJ,

    http://www.ictj.org/en/tj/

    (accessed December 2008)

    [5] Kieran McEvoy and Lorna McGregor, “Transitional Justice From Below: An Agenda for Research, Policy and Praxis?” in Human Rights Law In Prespective: Transitional Justice From Below, Grassroots Activism and the Struggle for Change, Kieran McIvor and Lorna McGregor, 2-3 ( Oxford and Portland: Hart Publishing, 2008)

    [6] Somali National Movement (SNM) is the armed opposition against Siyaad Barre’s Government

    [7] Siyaad Barre is the former President of Somalia who led the brutal military system in Somalia from 1969-1991, he came to power through a coup

    [8] War-Torn Societies Project (WSP) International, Somali Programme, “A Self-Portrait of Somaliland: Rebuilding From Ruins,” War-Torn Project,

    http://www.apd-somaliland.org/docs/selfportrait.pdf

    (accessed May 2010), Pp 22.

    [9] Mark Bradbury, The Somali People and Culture: Becoming Somaliland (Indiana: Indiana University Press, 2008), 247.

    [10] The conferences are those initiated by clan and tribal leaders to defuse the hostilities

    [11] Isaaq is the largest tribe in the North who used to support SNM

    [12] War-Torn Societies Project (WSP) International, Somali Programme, Rebuilding From Ruins: Issues and Possibilities (NJ: The Red Sea Press, Inc., 2005), 14.

    [13] Berbera is a Red Sea port city of Somaliland

    [14] Burco is the Second Capital of Somaliland

    [15] War-Torn Societies Project (WSP) International, Somali Programme, Rebuilding From Ruins: Issues and Possibilities (NJ: The Red Sea Press, Inc., 2005), 14.

    [16] Harti is one of the Somaliland tribes

    [17] Dir is one of the Somaliland tribes

    [18] WSP, 14.

    [19] Sanaag is a Eastern Region of Somaliland

    [20] War-Torn Societies Project (WSP) International- Somali Programme-, Rebuilding From Ruins: Issues and Possibilities (NJ: The Red Sea Press, Inc., 2005), 14-15

    [21] WSP, 15.

    [22] Elizabeth Stanley, “The Political Economy of Transitional Justice in Timor-Leste?” in Human Rights Law In Perspective: Transitional Justice From Below, Grassroots Activism and the Struggle for Change, Kieran McEvoy and Lorna McGregor, 179 ( Oxford and Portland: Hart Publishing, 2008)

    [23] Creative World Wide, “Indigenous Conflict Management Mechanisms: Community-Based/Traditional/Indigenous Mediation; Community-Based Conflict Mitigation; Grassroots Approaches to Peace,” Creative World Wide,

    http://www.creativeworldwide.com/CAIIStaff/Dashboard_GIROAdminCAIIStaff/Dashboard_CAIIAdminDatabase/resources/ghai/toolbox4.htm


    Adam Haji Ali Ahmed Human Rights Lawyer & Law Lecturer at the Faculty of Law, University of Hargeisa, Somaliland and an MA Candidate in the International Law and Human Rights programme at the UN-mandated University for Peace.
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