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ḤUDŪD PUNISHMENTS IN THE FOREFRONT: APPLICATION OF ISLAMIC CRIMINAL LAW BY HARAKAT AL-SHABAAB AL-MUJAHIDEEN

Published online by Cambridge University Press:  14 May 2014

Michael Skjelderup
Michael Skjelderup*
Affiliation:
Master of Arts in Religious History, University of Oslo
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Abstract

Harakat al-Shabaab al-Mujahideen, usually referred to as al-Shabaab (the youth), is known primarily 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 article, I analyze the main legal body of the group: the qāḍī court. In order to establish law and order in their territories, al-Shabaab has applied their own version of sharī'a. The article 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 that were outlined by the medieval Muslim scholars in order to humanize Islamic law. Therefore, the legal reality of al-Shabaab's regime is far more brutal than that of most other Islamic-inspired regimes in the contemporary Muslim world. Al-Shabaab's practice of Islamic criminal law may be seen not only as a means to exercise control through fear but also as an effective way of filling the vacuum of insecurity and instability that has followed twenty years of violence and the absence of state institutions in its territories. I argue that, in order to understand al-Shabaab's current practice of criminal law, 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, and especially of the ḥudūd punishments, provides al-Shabaab with political-religious legitimacy.

Keywords

Al-Shabaabsharī'aIslamic criminal lawradical IslamismSomali Islam
Type
ARTICLES
Information
Journal of Law and Religion , Volume 29 , Issue 2 , June 2014 , pp. 317 - 329
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2014 

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References

1 MEMRI: Middle East Media Research Institute, In-Depth Report on Shabab Al-Mujahideen in Somalia—Activists Demolish Churches: “We Will Establish Islamic Rule from Alaska & Chile to South Africa, & from Japan to Russia—Beware, We Are Coming,” Special Dispatch no. 2181, January 9, 2009, http://www.memri.org/report/en/0/0/0/0/0/0/3004.htm.

2 My analysis of these court cases is primarily based on fifty-eight in-depth interviews conducted with Somali informants in Eastleigh, Nairobi, from October 2010 to November 2011. The majority of the informants are refugees from South and Central Somalia with knowledge about, or experiences in, the areas under al-Shabaab control. Most of them were directly involved in criminal trials of the al-Shabaab courts. The informants describe criminal cases from the end of 2008 to the spring of 2011. Due to the ongoing conflict in South Central Somalia and al-Shabaab's hostility toward Westerners, I have not been able to conduct interviews with al-Shabaab qāḍīs or officials. Nor, to my knowledge, has any other official or credible source documented al-Shabaab's application of law in its territories. Given this, we must acknowledge that the description of the court cases in the article, and hence my analysis, may be colored by the personal perspectives of the witnesses, many of whom were convicted of crimes under al-Shabaab.

3 Qāḍī is the term used to denote a judge who is ruling in accordance with sharī'a.

4 “Classical legal doctrines” or “classical fiqh” are terms for the comprehensive legal literature compiled roughly from the eighth to the fourteenth/fifteenth century AD by Islamic legal scholars. The term fiqh, meaning “knowledge” or “reason,” was already being used by early legal scholars in the eighth century as a term for Islamic jurisprudence. While sharī'a was perceived as the God-given law by these scholars, fiqh was seen as the human interpretation of this law. The hermeneutical tradition developed during this period is still being studied and taught both in the West and in the Muslim world and exerts great influence on contemporary sharī'a discourses. See Vogt, Kari, Islam: Tradisjon, fundamentalisme og reform (Oslo: Cappelen Forlag, 2005), 80–81, 84–89Google Scholar; Zubaida, Sami, Law and Power in the Islamic World (New York: I.B. Taurus, 2005), 16–32Google Scholar; Kamali, Mohammad Hashim, Shari'ah Law: An Introduction (Oxford: Oneworld Publications, 2008), 250–60Google Scholar.

5 Vikør, Knut S., Mellom Gud og stat: Ei historie om islamsk lov og rettsvesen (Oslo: Spartacus Forlag, 2003), 166–67, 181–89Google Scholar; Peters, Rudolph, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century (Cambridge: Cambridge University Press, 2007), 12Google Scholar.

6 All legal schools, except the Ḥanafī school, approve of the use of one valid witness in combination with the oath as sufficient proof for the plaintiff. Surprisingly, if one of the litigants denies giving an oath, the other party will be asked to give one. If he then swears, he will win the case, even if the other party had sufficient evidence.

7 Vikør, Mellom Gud og stat, 168–70; Peters, Crime and Punishment in Islamic Law, 12–13.

8 Opinions differ among the classical jurists with regard to what offenses to include in the ḥadd category. Some jurists exclude apostasy and drinking alcohol from the category, while others count revolt against a legitimate ruler and homicide as ḥadd crimes. Among other things, these opinions depend on whether the scholar deems it necessary for a ḥadd punishment to be described in both the Qur'an and the haḍīth, or only in one of them. I will, however, conform to the treatment of ḥadd crimes as outlined in Peters, Crime and Punishment in Islamic Law, 7.

9 The majority of the criminal cases treated by al-Shabaab's qāḍī courts fall within this category; however, they will not be discussed in this article, as the fiqh literature offers few restrictions regarding procedure and evidence for cases of this category. Use of circumstantial evidence is allowed, and it is up to the qāḍī to decide the proper punishment. Nevertheless, the cases examined indicate that al-Shabaab qāḍīs to a large extent follow the few restrictions regarding ta'zīr/siyāsa outlined in the classical doctrine.

10 Peters, Crime and Punishment in Islamic Law, 38–39, 43, 44–46.

11 Ibid., 43.

12 Ibid.

13 Ibid., 30.

14 Ibid., 30, 36–37.

15 Ibid., 13.

16 Ibid., 15.

17 Ibid., 13–14.

18 According to the Ḥanbalītes, the earliest possible age for puberty to occur is ten for boys and nine for girls; according to the Shāfi'ītes, it is nine for both boys and girls. Ibid., 20–21.

19 Ibid.

20 Ibid., 21, 49.

21 Ibid., 49–52.

22 Ibid., 50–51.

23 Ibid., 51.

24 Ibid., 52.

25 Ibid., 39.

26 Interview with “Mohamed Ahmed” conducted in Nairobi, October 2010. Names of convicted persons or reporters have been changed to protect their identities.

27 Interviewed in Nairobi, July 2011.

28 Interview with “Shankar” conducted in Nairobi, July 2011.

29 Hallaq, Wael B., Sharī'a: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), 311CrossRefGoogle Scholar.

30 Ibid., 311–12.

31 Peters, Crime and Punishment in Islamic Law, 13–14.

32 Ibid., 13–14.

33 Ibid., 14.

34 Ibid.

35 Ibid., 21–22.

36 Ibid., 22.

37 Ibid.

38 Zubaida, Law and Power in the Islamic World, 57–58; Vikør, Mellom Gud og stat, 182–86, 189–90.

39 Zubaida, Law and Power in the Islamic World, 57–58; Vikør, Mellom Gud og stat, 182–86, 189–90.

40 Zubaida, Law and Power in the Islamic World, 107–08, 112–13; Vikør, Mellom Gud og stat, 196–99; Peters, Crime and Punishment in Islamic Law, 92–93.

41 Zubaida, Law and Power in the Islamic World, 112–13; Peters, Crime and Punishment in Islamic Law, 92–102.

42 Vogel, Frank E., Islamic Law and Legal System: Studies of Saudi Arabia (Leiden: Brill, 2000), 231–32, 249–50Google Scholar.

43 See, for example, Amnesty International, Document—Medical Letter Writing Action: Saudi Arabia: Amputations (Amnesty International, 1991)Google Scholar, http://www.amnesty.org/en/library/asset/MDE23/006/1991/en/dae4a6e7-ee38-11dd-99b6-630c5239b672/mde230061991en.html.

44 Vogel, Islamic Law and Legal System, 245–46.

45 Ibid.

46 The number of punishments is based on the author's study of media and NGO reports, as well as on interviews with Somali refugees.

47 Vogel, Islamic Law and Legal System, 246–47.

48 Peters, Crime and Punishment in Islamic Law, 55–56.

49 Ibid., 56; El-Awa, Mohamed S., Punishment in Islamic Law: A Comparative Study (Plainfield, IL: American Trust Publications, 2000), 3–4Google Scholar.

50 Peters, Crime and Punishment in Islamic Law, 55–56.

51 Wasti, Tahir, The Application of Islamic Criminal Law in Pakistan: Sharia in Practice (Leiden: Brill, 2009), 32Google Scholar.

52 Peters, Crime and Punishment in Islamic Law, 57.

53 Interview with “Abu Mahmod” conducted in Nairobi, October 2010.

54 Ahmed ibn Naqib Al-Misri, Reliance of the Traveller, ed. and trans. Nuh Ha Mim Keller, rev. ed. (Beltsville, MD: Amana Publications, 1997), 615Google ScholarPubMed.

55 Peters, Crime and Punishment in Islamic Law, 15.

56 Ibid.

57 Ibid.

58 Interview with “Fuad” conducted in Nairobi, November 2010.

59 Interview with “Roble” conducted in Norway, April 2011; interview with “Muhtab” conducted in Nairobi, October 2010; “Somalis Watch Double Amputations,” BBC News, June 25, 2009, http://news.bbc.co.uk/2/hi/africa/8118306.stm.

60 Interview with “Roble” conducted in Nairobi, October 2010.

61 Australian Government, Refugee Review Tribunal, Country Advice Somalia: Somalia—SOM37002—Amputations—Al-Shabaab—Clans—Recruitment, 1–2, http://www.ecoi.net/file_upload/1930_1303056171_som37002.pdf.

62 Haykel, Bernard, “On the Nature of Salafi Thought and Action,” in Global Salafism: Islam's New Religious Movement, ed. Meijer, Roel (New York: Columbia University Press, 2009), 38–39Google Scholar; Wiktorowiz, Quintan, “Anatomy of the Salafi Movement,” Studies in Conflict & Terrorism 29 (2006): 207–09, 217–27CrossRefGoogle Scholar.

63 Wiktorowiz, “Anatomy of the Salafi Movement,” 207–09.

64 Ibid., 207–09, 217–27.

65 Interviews conducted in Nairobi, October 2010.

66 The Forgotten Obligation: A Call to the Most Important Obligation after Iman (Global Islamic Media Front), 4 (on file with author).

67 Wiktorowiz, “Anatomy of the Salafi Movement,” 207–09; Roel Meijer, “Introduction,” in Global Salafism, 3–4.

68 Wiktorowiz, “Anatomy of the Salafi Movement,” 208–09.

69 Ibid.

70 Ibid.

71 MEMRI: Middle East Research Institute, In-Depth Report on Shabab Al-Mujahideen in Somalia.

72 Ibid., 5.

73 Peters, Crime and Punishment in Islamic Law, 144–45.

74 Hallaq, Sharī'a, 311–12.

75 Abdirahman “Aynte” Ali, “The Anatomy of Somalia's Al-Shabaab Jihādists,” Horn of Africa 27 (2009): 3–10Google Scholar.

76 Stig J. Hansen, Report for the Norwegian Defence Research Establishment (2011), 11.

77 Garstein-Ross, Daveed, “The Strategic Challenge of Somalia's Al-Shabaab Dimensions of Jihad,” Middle East Quarterly 4 (2009): 6Google Scholar.

78 Ibid., 5–6.

79 Ali, “The Anatomy of Somalia's al-Shabaab,” 19.

80 Ibid.

81 Ibid.

82 Hansen, Report for the Norwegian Defence Research Establishment, 69.

83 Ibid.

84 According to “Farouk,” a Somali informant from Mogadishu, al-Shabaab primarily controls the main urban centers, while traditional authority and xeer is still widely applied throughout the countryside.

85 Interviews conducted in Nairobi, October 2010 to September 2011.

86 Ali, “The Anatomy of Somalia's al-Shabaab,” 22.