What is remarkable about Somalia today is that it has no functioning system of laws in the sense that westerners understand it, and therefore the consequences of actions do not need to be considered, providing clan obligations are observed. It was for this reason that the early promise of the Union of Islamic Courts was so important, and why its destruction was such a disaster for Somalia, because it was an attempt to reintroduce the rule of law into that country. Peter Eichstaedt quotes a Kenyan human rights worker, Frederick Okado, who said of Somalis being kept in Kenyan jails, “They’re not used to the fact that if you hit someone, there will be consequences. In Somalia, you can hit someone or even kill them, and no more steps will be taken.”[1] We use the term “lawless” without thinking, but that is the effective state of Somalia today. In such a situation the distinction between illicit and licit business is effectively non-existent, and so a businessman can just as easily invest in a mobile phone company, or in piracy, it is just an investment decision.

Strictly speaking Somalia is not without law, but it does lack a consistent system of criminal and civil legal redress in the sense understood in most of the world. Somali society, that is the clan-based system, relies on a combination of Islamic shari’a law and customary law, known as xeer. Xeer law is not the same as shari’a law, it is an oral system which has not been formally codified and is controlled by male clan elders, known as the xeer begti or isimadda. Xeer law is pre-Islamic in origin, and is not a version of shari’a law. According to Andre Le Sage the general principles of xeer law include:

1        collective payment of diya (or blood money, usually paid with camels and other livestock) for death, physical harm, theft, rape and defamation.

2        maintenance of inter-clan harmony.

3        family obligations.

4        resource-utilisation rules.[2]

Xeer can be divided into two broad categories, xeer guud and xeer gaar. Xeer guud, includes the general aspects of traditional clan law that regulate common, day-to-day social interactions, civil affairs, and means of dispute settlement within a clan and between different clans. Xeer gaar regulates economic issues between clans and sub-clans in such areas as pastoralism, fishing, and frankincense harvesting.[3]

What distinguishes xeer from most other systems of law is that it is based on the relationship between groups (of men) rather than between individuals. The whole diya (blood money) paying group is collectively responsible for a crime committed by one or more of its members. Ioan Lewis says that a Somali’s “most binding and most frequently mobilized loyalty is to his ‘diya-paying group.’”[4] As Lewis notes, a diya-paying group consists of “a few hundred to a few thousand fighting men” and he adds that, “An injury done by or to any member of the group implicates all those who are party to its treaty. Thus if a man of one group is killed by a man of another [group], the first group will collectively claim the damages due from the second. At the same time, within any group a high degree of co-operation and mutual collaboration traditionally prevails.”[5]

In dealing with pirate groups it is important to understand that they apply the principles of xeer law in their dealings with others. Thus if a pirate is killed by the marines of a particular country, say France or the United States, the Somali diya-paying group to which the pirate belonged will see it as their duty to seek the payment of diya from the country concerned, and if this is not forthcoming they will see it as their entitlement to revenge the dead pirate by killing a Frenchman or an American (who will be seen as a fellow clan-member of the man who killed the Somali pirate), even though the Somali pirate died when he was trying to kill other (innocent) people.

Somalis are not used to the idea that the individual may responsible for his actions, their system is collective. An example of this approach was the action of the Somali pirates in refusing to allow seven Indian seamen to leave Somalia in April 2011, even though their ship the MT Asphalt Venture was released after the payment of a ransom of $3.6 million. Reuters quoted a pirate called Ahmed, who said, “The ship has just sailed away but we have taken some of its Indian crew back because the Indian government is currently holding our men. We need the Indian government to free our men so that we can release their citizens.”[6]

Xeer is essential a warriors’ code, in practice women do not have direct access to the system unless a man brings a matter to the elders, so the rape of single women will not normally be dealt with (and women have to be carefully not to be found guilty of immoral behaviour, even where they are victims). Another important aspect of xeer is that because an act, such as the murder of another man, is dealt with by the payment of diya by the group the perpetrator will not normally be punished. As Gundel says, “In general, the collective responsibility imposed on mag-groups by the xeer is seen as removing responsibility from individual perpetrators of crimes.”[7] Thus a Somali rapist or murderer does not take direct responsibility for his crimes. This is a fundamental difference from the English common law system and virtually all other legal systems, which are based on the moral responsibility of the individual. This is not a “cultural” difference, but a gulf which distinguishes xeer from western legal systems. In our dealings with Somali pirates we always need to keep an understanding of xeer in mind, because the Somalis will not behave in the way that we would normally expect. We are dealing with a group, a gang, not individuals who feel responsible for their own actions. It is possible to compare the outlook of diya group members to traditional societies which value “honour”, or respect, and are prepared to kill their own family members who fail to comply with the local codes, but diya group members go much further.

If we are truly to learn from the problems of Somalia, we need to firstly examine our own preconceptions, to stand back from our own certainties.

[1] Peter Eichstaedt – “Pirate State”, Lawrence Hill Books, Chicago, 2009, page 109

[2] Dr. Andre Le Sage – Stateless Justice in Somalia, Formal and Informal Rule of Law Initiatives”, July 2005 Report, Centre for Humanitarian Dialogue, Geneva, Switzerland, 2005, pages 32-33

[3] Dr. Andre Le Sage – Stateless Justice in Somalia, Formal and Informal Rule of Law Initiatives”, July 2005 Report, Centre for Humanitarian Dialogue, Geneva, Switzerland, 2005, page 33

[4] I M Lewis “A Modern History of the Somali”, Fourth Edition, James Currey, Oxford, 2002, page 11

[5] I M Lewis “A Modern History of the Somali”, Fourth Edition, James Currey, Oxford, 2002, page 11

[6] “Somalia pirates release Panama-flagged bitumen cargo ship”, Reuters, 15 April 2011, http://af.reuters.com/article/somaliaNews/idAFLDE73E1LA20110415

[7] J Gundel, “The Predicament of the Oday: The Role of Traditional Structures in Security, Rights, Law and Development in Somalia”, Danish Refugee Council & Novib/Oxfam, Nairobi, Kenya, November 2006, page iii