analysisBy Hanno Brankamp
Perceptions of Somalia's Union of Islamic Courts have often exaggerated the role of Islam and its radicalisation.
In July 2006, Ethiopian armed forces crossed the border into western Somalia's Gedo region, seeking to curb an alleged terrorist threat posed by the Union of Islamic Courts (UIC). According to Ethiopian and US intelligence, the UIC was a uniform, militant Islamist movement posing an imminent risk to regional and international security.
The beginnings of influence: UIC's early years
The Union had developed from a judicial system that once concentrated on petty crime into a loosely Islam-based counter-administration to the pro-Western Transitional Federal Government (TFG) that was established in Somalia in September 2004.
After gaining considerable ground against the warlords of the pro-Ethiopian proxy force Alliance for the Restoration of Peace and Counter-Terrorism (ARPCT), the Courts eventually seized control over the capital Mogadishu and the Middle Shabelle region in June 2006.
Converging narratives and the formation of a militant Islamist discourse
Despite being little more than an amalgam of various Islamic factions, local clan elders and financially supportive businessmen, the Islamic Courts were portrayed as the hotbed of Islamic fundamentalism in the region - a perception curiously shaped by two diametrically-opposed groups.
On the one hand, decision-makers in both the international and regional arenas readily depicted the Courts Union as an outpost of al-Qaeda. This was directly connected to the strategic counter-terrorism interests of the US on the African continent, particularly in the Horn of Africa. With the backdrop of the "War on Terror", the US led the bulk of Western governments to quickly adopt a hard-line stance towards the UIC.
Regional allies - most notably Ethiopia - supporting this parochial ideological outlook encouraged the prospect of a long-term US commitment in the region, with substantial material and financial support for the Meles regime. Notably, before January 2007 the Bush administration supported the Ethiopian invasion that led to the Courts' complete dismantlement.
On the other hand, "radical" Islamists saw a chance to showcase their relative strength within the Courts Union and to increase their leverage on other, more "pragmatist" factions. Due to their internal heterogeneity, the Islamic Courts had to grapple with constant disunity which prevented a stable, consistent programme for the group.
Initially the UIC favoured a "moderate" agenda with regard to law enforcement and avoided the excessive use of severe corporal and capital punishments. Later, however, the imbalance within the group turned against "moderate" forces and facilitated an increasing radicalisation of the Courts in late 2006.
In the end, instead of promoting the real form of the Islamic Courts as a network of local "marriages of convenience", both sides interacted to reinforce a depiction of the Islamic Courts as an intransigent, uniform Islamist movement. At the core of this narrative was the idea that Islamic law was the key constituent of law enforcement under the UIC.
Between Xeer and Islamic law
However, when examining the justice systems that evolved with the expansion of the UIC in Southern Somalia, it is important to note that Islamic law (sharia) was not the only relevant legal codex. Despite explicitly referring to sharia, the Courts' rulings were substantially guided by Somali customary law, xeer.
Indeed, Somalia's lineage system - the micro-networks of Somalia's major clans - had determined the society's socio-legal order for centuries. As a means of settling inter- and intra-clan disputes, a set of uncodified customary clan laws (xeer) took primacy in traditional adjudication.
These laws are localised and comprise rules for the treatment of day-to-day criminal matters, social interactions, civil affairs and disputes among clans - commonly known as xeer guud. Another sub-set of rules, regulating economic production relations between agricultural and pastoral communities, is referred to as xeer gaar.
Through interaction between clans and sub-clans, Somali customary law - xeer soomaali - developed into a generic term for overarching codes of conduct embracing all Somali communities.
Despite this paramount importance of xeer, Islamic law traditionally retained jurisdiction over civil family matters such as marriage, divorce and death.
Shaping the jurisprudence of the Islamic Courts
Contrary to popular assumption and terminological intuition, the Islamic Courts were not able to establish a system under which sharia was systematically, or even exclusively, applied.
Instead, the importance of clan law ensured that the legal force of Islamic law remained limited. The mixing (barax) of sharia and xeer, and the compliance of sub-clan communities - namely the Hawiye- became necessary for maintaining communal peace and security.
Additionally, in order to strengthen local ownership of the Courts, judges and other legal personnel had been recruited from groups of respected elders and local public figures.
These were not necessarily ʿulamāʾ or wadaaddo (religious scholars) and their formal education in Islamic jurisprudence - fiqh - was basic, further obstructing a knowledgeable implementation of sharia.
Lastly, comparatively "moderate" Sufi traditions - often referred to as "heterodox" by Salafi movements - limited the leverage of more "radical" factions and could circumvent the systematic application of harsh hudud-penalties on a larger scale. Of course, with Ethiopian troops approaching, and the proliferation of nationalist and Islamist ideas, the position of "moderates" within the UIC did weaken with time. But that should not obscure their original influence.
Combining these factors demonstrates why a systematic implementation of severe Islamic capital punishments, such as beheading or lapidation, could thus not be realised in practice.
Even if sharia were an important aspect of the UIC's judicial process, it was rarely applied in criminal law. Instead, the UIC's legal procedures combined certain characteristics of both Islamic law and xeer, with local courts often resorting to "mediation" - masalaxo.
It was these reconciliatory mechanisms of Somali customary law, decisive for the creation of "win-win" solutions, which marked the limits of the UIC's memorable successes and their social inclusiveness.
Putting the "Islamic Courts" into perspective
As much as recent political developments concerning Islamist militancy in Somalia retrospectively affect the narrow lense through which the Islamic Courts are viewed, a more contextual assessment is needed to avoid generalistions about Islamic radicalisation.
Observing the UIC through the prism of xeer reveals a nuanced picture of a loose network of Islamic courts with a plurality of factions. Incidents such as those of December 2006 in Bulo Burto - when local residents were admonished to perform the obligatory daily prayers on pain of death - show the fragility of the Courts inter-factional consensus.
Nonetheless, the diverse groups within the UIC were able to find common ground within the three pillars of Islam, clan tradition and the prospect of communal security.
In this regard, xeer was a vital ingredient for the establishment of a socio-legal order, that mirrored the multidimensional form of Somali society itself.
Hanno Brankamp is studying Area Studies Asia/Africa at Humboldt University in Berlin, with a focus on East Africa and the Horn.