Punishment on Stage -Application of Islamic Criminal Law by Harakat al-Shabaab al-Mujahideen- Michael Skjelderup Master’s Degree Thesis in History of Religion (60sp) Department of Culture Studies and Oriental Languages The Faculty of Humanities University of Oslo Autumn 2011 © Michael Skjelderup Autumn 2011 Punishment on Stage: Application of Islamic Criminal Law by Harakat al-Shabaab al- Mujahideen Michael Skjelderup http://www.duo.uio.no/ Trykk: Reprosentralen, Universitetet i Oslo II Executive summary Harakat al-Shabaab al-Mujahideen, usually referred to as al-Shabaab (“the youth”), is mostly known as a Somali terrorist group. But since the end of 2008 it has functioned as a state power in large parts of Southern and Central Somalia. In this study I sketch out the structure and function of the legal system of the group. Over the last three years they have developed an administrative structure and a legal system which is unprecedented in the Somali conflict, which has lasted for more than 20 years. In order to establish law and order in their territories al-Shabaab has applied their own version of sharī’a and issued strict religiously inspired decrees. The present study is based on information acquired through interviews with Somali refugees in Nairobi who have direct experiences with al-Shabaab’s judicial practice. It reveals that al-Shabaab’s application of criminal law follows the inherent logic of classical Islamic legal doctrines on several points. However, the al-Shabaab courts tend to overlook many of the strict requirements regarding evidence and procedure which was outlined by the medieval Muslim scholars in order to humanize Islamic law. This is especially evident in cases of the so-called ḥadd (pl. ḥudūd) crimes, i.e. offences where the punishments (e.g. stoning, lashing and amputation) are described in the Qu’rān and the haḍīth-literature. Therefore, the legal reality under al-Shabaab’s regime is far more brutal than under most other Islamic inspired regimes in the contemporary Muslim world. Al-Shabaab’s practice of Islamic criminal law is not only a means to exercise control through fear but may also be seen as an effective way of filling the vacuum of insecurity and instability after twenty years of violence and absence of state institutions in its territories. In order to understand Al-Shabaab’s current practice of criminal law, I argue, one has to take into consideration the group’s Jihadi-Salafi affiliation. According to Salafi notions sharī’a is not only a means to an end, but an end in itself. As such sharī’a, i.e. God’s divine law, is the visual symbol of an Islamic state. Consequently, the application of Islamic criminal law, especially the ḥudūd punishments, provides al-Shabaab with religious and political legitimazy. The fact that corporal punishments and executions are frequently enforced in public is in many respects more important than whether the criminal proceedings are in accordance with the strict requirements outlined in classical legal doctrines. III IV Acknowledgements Many people have helped me to accomplish my Master degree thesis in History of religion. First of all I would like to thank all the Somali informants who dared to meet me in Nairobi and Norway and were willing to share their often traumatic and heartbreaking stories with me, a total stranger. Without them this piece of work would never have been possible. I am deeply grateful for the generosity and kindness they have showed me. I am very much indebted to my supervisors Professor Anne Stensvold at the University of Oslo, and Associate Professor Stig Jale Hansen at the University of Life Sciences, Ås. Anne has been invaluable for me during the writing process. She has really believed in my project and has provided me with important constructive criticism and advice. I am particularily thankful for the numerous hours she has spent reading through, correcting and commenting on the manuscript. She never seemed to loose faith in me, but remained patient and supportive until the end. Likewise, I am very grateful for all the help and support from Stig J. Hansen. With his enthusiasm on behalf of my project Stig has been a great source of inspiration. He immediately embraced my idea of the project and made me use his extensive contact network with Somalis in Scandinavia as well as in Somalia and Kenya. Without his advice and contacts the project would not have been manageable. I cannot exaggerate the importance of Senior Research Fellow Mohamed Hussein Gaas for my project. As a travel partner and friend his help during my fieldtrip was crusial. Although he had his own projects and a tight schedule, he introduced me to his extensive network of family and friends among the Somali population in Nairobi, not least finding me suitable interpreters. Throughout the fieldtrip he provided me with security advices as well as basic cultural knowledge. A special thanks also goes to Mohamed and Abdow who did a invaluable job as interpreters and research assistants during my fieldwork. Their efforts in finding relevant informants among refugees in Nairobi have been essential for the outcome of the fieldwork. Also, the value of their persisting work for almost a year, finding and interviewing refugees with direct experiences from al-Shabaab criminal trials, cannot be exaggerated. I would also like to thank Professor Yahya H. Ibrahim from the University of Mogadishu for his enthusiasm for my project and for all the energy he put in the effort to find suitable informants for me during the fieldwork. V I would also like to thank Nora S. Eggen, Senior Research Fellow in Arabic at the University of Oslo, who has shared her knowledge of the classical Islamic tradition and provided me with detailed information about classical works used by al-Shabaab. A thanks also goes to Professor Knut S. Vikør at the University of Bergen for helping me to understand important aspects of the Islamic legal tradition. I am grateful to Elisabeth Sæthvedt and Kristine Rybråten, who were willing to work through my draft and use their excellent English skills to improve my language. They made a great effort in the last weeks before I handed in my thesis. Also, thanks to my fellow student and friend Hans Olav Arnesen and my father Jens-Henrik Skjelderup for reading through the draft and giving valuable comments and corrections. I am also thankful for the help of Adyam Tesfamariam, who has helped me with the translation of important Arabic expressions as well as al-Shabaab statements written in Arabic. Last but not least, I want to extend a warm thanks to my wonderful wife who has supported me patiently during the sometimes all-consuming master project and taken care of our two beloved small children during my fieldwork. Michael Skjelderup Oslo, November 2011 VI Somalia Jubbada Hoose: Lower Jubba Jubba Dhexe: Middle Jubba Shabeellaha Hoose: Lower Shabelle Shabeellaha Dhexe: Middle Shabelle VII VIII Mogadishu The political situation in Mogadishu, 26th November 2010 IX X Contents Executive summary ................................................................................................................................III Acknowlegdments ................................................................................................................................... V Map of Somalia .................................................................................................................................... VII Map of Mogadishu ................................................................................................................... IX Part 1: Context ............................................................................................................................ 1 Chapter 1: Introduction .............................................................................................................. 1 1.1 Previous research and research questions .......................................................................... 2 1.2. Studying Al-Shabaab and sharī’a – a social constructionsist perspective .....................................3 Chapter 2: Method ....................................................................................................................................5 2.1 The quest for information – initial stages ......................................................................... 5 2.2 The quest for information – finding interviewees ............................................................. 7 2.2.1 Security concerns – where to conduct interviews ................................................... 7 2.2.2 Ethical reflections – paying for information ........................................................... 8 2.3 The quest for information – final stages ......................................................................... 10 2.4 Methodological reflections ............................................................................................... 11 2.5 The Material ..................................................................................................................... 12 2.5.1 Informants and anonymity .................................................................................... 12 2.5.2 Reliability ..................................................................................................................... 13 2.5.3 Generalizability ............................................................................................................ 15 Chapter 3: Religion, tradition and law in