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DATE IMPORTED: September 23, 2012 A Ugandan soldier from the African Union Mission in Somalia (AMISOM) watches as defected members of Islamist militant group al Shabaab walk after giving themselves up to the African Union AMISOM forces in Garsale, approximately 10km from the town of Jowhar, 80km north of Mogadishu, in this September 22, 2012 handout picture made available by the African Union-United Nations Information Support Team on September 23, 2012. Islamist rebels said they shot dead a Somali lawmaker in Mogadishu on Saturday and threatened to kill every legislator in the country. The African Union Mission in Somalia (AMISOM) force said, however, there were signs of deepening internal rifts within al Shabaab. More than 200 rebels defected near the town of Jowhar on Saturday, AMISOM said. REUTERS/AU-UN IST/Abukar Albadri/Handout (SOMALIA - Tags: CIVIL UNREST POLITICS) FOR EDITORIAL USE ONLY. NOT FOR SALE FOR MARKETING OR ADVERTISING CAMPAIGNS. THIS IMAGE HAS BEEN SUPPLIED BY A THIRD PARTY. IT IS DISTRIBUTED, EXACTLY AS RECEIVED BY REUTERS, AS A SERVICE TO CLIENTS
Report

The hard, hot, dusty road to accountability, reconciliation, and peace in Somalia

Amnesties, defectors programs, traditional justice, informal reconciliation mechanisms, and punitive responses to al-Shabab

United Nations University
Editor's Note:

The following introduction is an excerpt from the chapter, "The hard, hot, dusty road to accountability, reconciliation, and peace in Somalia: Amnesties, defectors programs, traditional justice, informal reconciliation mechanisms, and punitive responses to Al Shabaab," produced by Vanda Felbab-Brown for the new United Nations University volume, "The Limits of Punishment: Transitional Justice and Violent Extremism (UNU, June 2018)," of which Cale Salih was the project lead, and Adam Day a project adviser. The full chapter can be found here.

Introduction

The poster case of state failure, Somalia has been battered by undulating phases of a civil war playing out among the country’s many fractious clans, larger entities aspiring to statehood, warlords, and Islamist groups since 1991. Somalia has experienced multiple iterations of jihadist groups gaining control over large territories amidst state collapse, as well as extensive international efforts to stabilise and build state institutions. The country is thus an illuminating case-study of how militants administer territories and deliver governance, and how antiinsurgency and stabilisation efforts react to the militants’ rule and populations who lived under it. It is also a rich laboratory for examining both state-led punitive policies toward jihadist militants and populations associated with them, and for non-punitive approaches. This report focuses on military, punitive, and non-punitive approaches to the potent jihadist militant group Harakat al-Shabaab al-Mujahideen, commonly referred to as al Shabaab.

The government of Somalia and the international community have principally relied on defeating al Shabaab militarily and there are no immediate prospects for negotiations with the group. However, the Somali government has also repeatedly, in an ad hoc manner and without any policy specification or clear legal consequence, declared temporary amnesties for al Shabaab defectors. Similarly, it has struck ad hoc political deals with splinter groups and, with international support, maintains a disarmament, demobilisation, and reintegration (DDR)-like program for low-level al Shabaab defectors. The government has not yet undertaken any similar DDR-like efforts toward the myriad of clan and warlord militias that exist in Somalia. Efforts at reintegration of former combatants from al Shabaab and beyond, and at clan and community reconciliation, also take place through non-governmental programs and traditional justice mechanisms.

Two sets of Somali government-led non-punitive processes have been undertaken: 1) ad hoc political deals with so-called high-value defectors, who, in exchange for defecting along with their followers, receive protection and red-carpet treatment from the Somali government and face no accountability or scrutiny for their past behaviour; and 2) DDR-like rehabilitation programs for al Shabaab defectors who, according to Somali intelligence officials’ assessments pose a low-risk of returning to violent terrorism, proselytising or providing logistical support for al Shabaab. Defectors who are assessed as high-risk as well as high-risk detainees are sent to military courts, which are widely perceived not to adhere to international human rights standards, and often issued the death penalty.

The reception and screening phases of detention and defection processes are non-transparent. Civilians who lived under al Shabaab rule and were forced to work for the group in performing non-violent tasks, such as cooking and washing or paying, risk getting caught up in the screening process, and judged as low-risk defectors at best. Despite the development of draft standard operating procedures for screening, the risk of arbitrariness in determining who is low-risk and who is high-risk persists. Thus, even civilians who were only tangentially associated with al Shabaab risk being deemed high-risk and then facing the death penalty. Yet Somalis, particularly those who experienced al Shabaab’s terrorist attacks, often applaud such extremely punitive measures.

The government-led effort that has received the most support from the international community is the program for low-risk defectors. It has registered the greatest improvements and progress in its operations over time, for example in terms of separating children from adults and improving exit procedures. But major challenges persist, including the role and presence of Somali intelligence services at the rehabilitation facilities; little harmonisation across the centres; lack of any rehabilitation facilities for female defectors, detainees, and women who lived under al Shabaab rule and then came to be perceived as al Shabaab associates; the underdevelopment of reinsertion and rehabilitation programming for receiving communities and the communities’ reconciliation with former al Shabaab associates and among rival, subordinate and dominant clans; and the lack of job opportunities for former al Shabaab combatants and associates amidst overall extensive unemployment.

Beyond the challenges of the low-risk defector programs, several large problems loom over the amnesty declarations and government-led programs: the lack of a legal framework and the absence of certainty for potential defectors regarding what fate they can expect if they risk their lives to escape from al Shabaab; high corruption and lack of adherence to international human rights laws by Somali government institutions; the lack of a parallel effort to disarm and transform clan and warlord militias; persisting clan conflict and discrimination; and the country’s prevalent politics of exclusion and marginalisation. These problems also permeate traditional justice mechanisms that are informally used to reintegrate al Shabaab defectors. In addition, their biased treatment of women and discrimination against minority clans perpetuates grievances. Yet efforts at trauma healing, forgiveness, and reconciliation among former combatants, local communities, and clans have been led by Somali non-governmental organisations (NGOs) for several years.

This report explores the balance and tensions between the need for forgiveness and healing and the desire for accountability and justice. While al Shabaab often provides the order that some communities prefer over chaos, clan discrimination, or rule of pro-government warlords, there is also significant resentment among Somali communities against al Shabaab brutality and crimes. Perceptions that high-value al Shabaab defectors receive a red-carpet treatment from the Somali government and that low-level defectors receive support such as literary, numeracy, and vocational training, in addition to religious de-radicalisation, augment the resentments. There is also a deep belief among many Somali civil society representatives that the root cause of Somalia’s multifaceted problems is the profound and pervasive impunity of the powerful. They fear that non-punitive approaches, such as the high-value and even the low-risk defectors programs, only exacerbate this sense of impunity.

Clearly, non-punitive approaches directed at former low-risk al Shabaab combatants, clans aligned with al Shabaab because of prior discrimination, and populations who lived under al Shabaab rule, are badly needed. They are needed in order to prevent new injustices, achieve sustainable peace, and avoid endless cycles of violence, discrimination and counter-revenge. However, emphasising accountability, including in creative ways beyond imprisonment, as an essential part of non-punitive approaches, as well as in just punitive approaches is equally essential for a comprehensive peace.

This report proceeds as follows: The Context Section discusses the Somali military, political context, developments in recent years, the quality of governance by formal state institutions and al Shabaab, and societal attitudes toward those associated with the group. The next section reviews the design and programmatic content of current approaches to leniency, amnesty, and accountability – of government-led processes, traditional justice mechanisms, and informal reconciliation processes led by Somali NGOs. It describes the existing policy framework, the lack of an adequate legal framework, and the role of the amnesty and defectors program in the government’s overall strategy toward al Shabaab. It then details the leniency policies toward high-value, high-risk, and low-risk defectors and evaluates their accomplishments and challenges, such as regarding women. Finally, the section details and assesses traditional justice and clan reconciliation mechanisms, such as xeer, as well as Somali NGO-led reconciliation processes.

The following section provides an overall assessment of current approaches in Somalia to amnesty, defectors programs, and high-value defector co-optation deals. It highlights, inter alia: the lack of transparency and consistency regarding the reception of defectors and the high-value co-optation deals, as well as screening challenges; the lack of legal certainty for defectors; and reintegration challenges. The section also emphasises the need to integrate into programmatic treatment for low-risk defectors the motivations of those who join al Shabaab or become associated with it, while recognising the role of grievances, exclusion, social and economic marginalisation, and corruption. It also raises the issue of foreign fighters among al Shabaab, a topic currently off the radar screen of existing government processes. The report concludes by offering a detailed set of policy recommendations.

In addition to reviewing existing background literature and reports on Somalia’s amnesties, defectors programs, DDR-like efforts, traditional and transitional justice approaches, and security and political developments, this report is based on my field trip to Mogadishu, Somalia and Nairobi, Kenya in December 2017. I had previously conducted similar research on DDR-like processes in Somalia in March 2015, at the time visiting the facilities for defectors in Baidoa and Kismayo. During this December 2017 fieldwork, I interviewed 36 interlocutors, including officials from various branches of the UN Mission Assistance Mission to Somalia (UNSOM), United Nations Political Office for Somalia (UNPOS), officers of the African Union Mission in Somalia (AMISOM) and their international support partners, officials of the UK Embassy in Somalia, Somali government and intelligence officials and military officers, international DDR contractors, Somali DDR contractors, representatives of Somali NGOs and international NGOs operating in Mogadishu, representatives of the Somali business community, and Somali journalists and researchers.

This material has been funded by U.K. aid from the U.K. government; however the views expressed do not necessarily reflect the U.K. government’s official policies.

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