By Sayid Mohamed Ahmed Gurey

On 24 September 2012, the United Nations General Assembly (UNGA) held a High-level Meeting on the Rule of Law at the National and International Levels during which numerous delegates spoke about the importance of the International Criminal Court (ICC). In the Declaration adopted at the meeting, States recognized “the role of the International Criminal Court in a multilateral system that aims to end impunity and establish the rule of law[1].”

“Without the rule of law, impunity reigns. By punishing violations of international legal norms and by promoting adherence to these norms, the ICC and the wider Rome Statute system play an important part in advancing the rule of law, thereby reducing impunity[2]” stated UNGA delegates.

According to Hagman and Seid, impunity in Somalia “has become so deeply entrenched over the years that it has become the norm” and that since the Siad Barre period (1969–1991) and beyond, “both local and foreign actors have repeatedly committed war crimes and other serious rights abuses that remain unaddressed to this day[3].”

In bid to use public office as a shield or immunity from prosecution, war criminals of all stripes, including ex-warlords, military, intelligence and federal police officials are manipulatively securing House of the People (HOP) seats in the ongoing Federal elections.

Electoral malpractices including massive rigging are not limited to Federal entities. Federal Member States (FMS) leaders have equally acted with impunity using their position of power to manipulate the process by filling HOP slots for their respective regions with their hand-picked cronies.

Disturbingly, Villa Somalia-linked henchmen implicated in grisly crimes over the last five years including, rape, murder, torture and forced disappearances, are grabbing seats at an alarming rate drawing public outcry and condemnation by opposition leaders. Examples include a former spy boss turned national security advisor whose election in a Hirshabelle lower house seat was initially rejected by the Federal Indirect Elections Team (FIET) only to be validated afterwards under dubious circumstances by the Federal Electoral Dispute Resolution Committee. Two other intelligence heads previously working under the ex-spy chief have also secured federal parliamentary seats for the Galmudug region. 

The infamous trio who occupied the topmost ranks at the National Intelligence and Security Agency (NISA) are accused among a litany of other crimes, of orchestrating the kidnap, disappearance and alleged murder of a former young female intelligence officer that shocked the entire nation sparking protests in Mogadishu. 

Meanwhile, a top brass police general behind a failed assassination attempt during a ruthless raid on the home of a senior opposition leader was unceremoniously declared a winner in another lower house seat. The deadly December 2017, incident that saw the outspoken opposition politician, (currently a presidential candidate) survive miraculously albeit with serious injuries, left several members of his security detail dead all of whom are buried in unmarked, hidden graves.

Instead of being tried at court to face justice for their crimes, these intelligence and military officials who continue to act with impunity are re-branding themselves as upcoming federal MPs and their entry into politics will set a dangerous precedent that will have a destabilizing effect on the next parliament.  It has now become a common practice for serial criminals determined to evade justice to seize parliamentary seats through deployment of troops, force, and intimidation to facilitate their path to parliament in a shambolic process marked by glaring irregularities, outright manipulation, and other malpractices.

Driven by a false sense of entitlement, these villains are convinced they can get away with their crimes. Unbeknownst to such brainless criminals, the Nuremberg trials had established that all of humanity would be “guarded by an international legal shield and that even a Head of State would be held criminally responsible and punished for aggression and Crimes Against Humanity. The right of humanitarian intervention to put a stop to Crimes Against Humanity – even by a sovereign against his own citizens – gradually emerged from the Nuremberg principles affirmed by the United Nations.[4]” 

Fluent in the Somali language, Lidwein Kapteijns, a western scholar and Professor of African and Middle Eastern History at Wellesley college and a Somali culture researcher, has deeply addressed the subject of impunity in Somalia through her widely acclaimed book “Clan Cleansing in Somalia: The Ruinous Legacy of 1991” and in other works including her well-articulated article “Remedying the Legacy of State Collapse: Thinking Through and Beyond Somali Civil War Violence.[5]” The underlying themes in her scholarly work discusses why the campaign of “clan cleansing of 1991–1992 was a key shift in the Somali civil war and remains the major break-line underlying Somali national politics today.[6]”

Truthful and insightful, Kapteijns illustrates why the underlying causes of impunity in Somalia lie in the actions of former leaders and warlords who resorted to “clan-based killings and expulsions in order to cover up their past complicity with the military regime; spun false clan histories to rebrand themselves as heroic leaders of their clans; and then tried to establish authority over parts of the state and country in the name of clan.[7]”

Further, Kapteijns notes that “the complete impunity for the leaders of the clan cleansing campaign that caused state collapse and the break-up of the country in 1991 remains the key legacy that undermines political reconstruction and moral repair in Somalia today.[8]” A must read for all Somalis, Kapteijns work to date, remains the most comprehensively written piece of research on impunity in Somalia and fills an important scholarly void left behind by an inadequate and largely absent Somali scholarship on this matter.

Equally important is the work of two other western scholars, Michael Keating and Matt Waldman who in their book “War and Peace in Somalia: National Grievances, Local Conflict and Al-Shabaab” explore the legacies of past violence, especially impunity, illegitimacy, and exclusion, and the need for national reconciliation and “how the international effort to help Somalis build a federal state and achieve stability is challenged by deep-rooted grievances, local conflicts and a powerful insurgency led by Al-Shabaab.[9]” Where Somali intellectuals remain moribund on this issue, western scholars have gone far and beyond in addressing the root causes of state and communal violence in Somalia, further shedding light on how the Somali society can pull itself from the impunity trap.

In a show of solidarity with the Somali people, Professor Kapteijns visited Garowe, Somalia, in mid September 2016 where she presented at the Book Fair and also spoke at the Puntland  Development and Research Center (PDRC) meeting with people who experienced the clan-cleansing of 1991-1992.

“Apart from sharing some of their individual experiences, they also reflected on why, until now, so few victims have written about what happened when warlords turned an armed rebellion against a criminally oppressive military regime into campaign of terror warfare and expulsion targeting common people of particular clan backgrounds[10]” said Kapteijns during her Garowe visit.

According to Human Rights Watch, War Crimes have been committed by all parties to the Somali conflict noting civilians have borne the brunt of the violence in the civil war[11]. There have been serious violations of “international humanitarian law (the laws of war) by the parties to the conflict, including indiscriminate shelling of civilian areas and infrastructure, arbitrary arrests and detentions, and summary killings[12]” said the rights group. Atrocities committed throughout Somalia’s civil war constitute international crimes as defined by international criminal law.

These include genocide (clan-cleansing), war crimes, crimes against humanity, aggression, torture, and terrorism.[13] Under International Law, there are no Statutes of Limitations for Genocide and War Crimes, meaning perpetrators of these crimes can be charged at any time no matter how long it has taken since the act was committed. It is because of this notion that some war criminals, most notably former Nazis who had remained under the radar for decades, can still be tried once found or when the case is strong enough to prosecute.[14]

Like in the former Yugoslavia and elsewhere, rape was used as a weapon of war in Somalia during the 1991-1992 clan-cleansing to humiliate, dominate, instil fear, disperse and/or forcibly relocate civilian members of a community or ethnic group. Under international law, conflict-related sexual violence is characterised as war crimes and crimes against humanity. When it is committed with the intent to destroy a population, such as during the Rwandan genocide in 1994, and Somalia’s clan-cleansing of the early nineties, systematic sexual violence can amount to genocide.[15]

Can Somali war criminals succeed in whitewashing their crimes and escape justice by hiding behind elective public offices? Evidence has shown that the long hand of the law can always catch up with criminals of all sorts regardless of their position of power or status in society. In Africa and beyond, former heads of states have been charged, convicted and sent to jail by international war tribunals and by domestic courts. On April 26, 2012, former Liberian President Charles Taylor was sentenced to 50 years in prison after being found guilty by the United Nations-backed Special Tribunal for Sierra Leone (SCSL) of abetting horrific war crimes, including rape and mutilation and use of child soldiers in Sierra Leone. His conviction was the first for war crimes by a former head of state in an international court since the Nuremberg trials of Nazi leaders after World War II.[16]

Read more: Ending the Culture of Impunity in Somalia: Perspectives on Justice and Restoration

Sayid Mohamed Ahmed Gurey
Email:sayidmohamed211@gmail.com