Domestic implementation of international criminal law
Federal Republic of Somalia
Domestic Legislation | Resources and Links
Somalia is a broken up country whose territory harbours serious conflicts with what is known as Islamic paramilitarism (of the Al-Qaeda type). Therefore, legislation enforcement and jurisdiction are both unstable. The legislative analysis of this country page must then be taken cautiously and in historical rather than legal terms.
According to the Standard ISO 3166 — Codes for the representation of names of countries, the short name "Somalia" corresponds to the Federal Republic of Somalia. The country's name on the official website of its Permanent Mission to the United Nations is Somali Republic, the name the country adopted when British Somaliland and the former Italian Somaliland united to form the Somali Republic on 01 July 1960. The Somali Republic is a member state of the United Nations since 20 September 1960. The Federal Republic of Somalia, whose internationally recognised government is the Federal Government of Somalia, established on 20 August 2012, appears to have treaty binding capacity according to the UN treaty Collection website (for example, on 01 october 2015, the Federal Republic of Somalia ratified the Convention on the Rights of the Child).
[Editor's Note, 24 July 2017]
For a recent and brief country history of Somalia you may consult the following URLs:
- Brief History. By the African Union Mission In Somalia
- Historical bakground. By the former United Nations Operation in Somalia (UNOSOM).
- Country Facts: Brief background on Somalia. By the Permanent Mission of the Somali Republic to the United Nations
Crimes Crime of Aggression
No specific provision.
However, the Penal Code of 1962 punishes the commission of hostile acts against a foreign State which expose the Somali State to the danger of a war:
Art. 187. (Hostile Acts against a Foreign State Which Expose the Somali State to the Danger of War).–
[Please note that for the territory of Somaliland, according to an introduction to the 1962 Penal code "[U]nder Article 130 of the Somaliland Constitution any provisions of this Code which are contrary to the fundamental rights and freedoms of the individual and to Islamic Sharia shall be disapplied. All provisions which are in effect repealed by Somaliland Constitution are also null and void". The same introduction states that "[T]his Code is still applied in the Republic of Somaliland and in the northern Somalia region of Puntland. It is stil current in South and Central Somalia. The Code which is based on the Italian Penal Code of 1930 was initially drafted by the Italian Somalia 'Court of Justice' in 1957 and was finalised by a special Legal Committee in 1962." Full text available here].
1. --Whoever, without the approval of the Government, effects recruitments or commits other hostile acts against a foreign State, so as to expose the Somali State to the danger of a war, shall be punished with imprisonment [96 P.C.] from five to twelve years; if war results, he shall be punished with imprisonment for life [95 P.C.].
2. Should the hostile acts be such as only to disturb relations with a foreign Government, or to expose the Somali State or its citizens, wherever residing, to the danger of reprisals or retaliations, the punishment shall be imprisonment [96 P.C.] from two to eight years. Where a breach of diplomatic relations results, or where the reprisals or retaliations occur, the punishment shall be imprisonment [96 P.C.] from three to ten years.
3. The above offence shall be punishable at the request of the Minister of Grace and Justice."
Art. 188. (Intelligence with Foreigners For the Purpose of Engaging the Somali State to Neutrality or War).–
Whoever holds intelligence with foreigners in order to engage or to commit acts directed to engage the Somali State to a declaration or preservation of neutrality [60] 75 g Const.), or to a declaration of war, shall be punished with imprisonment [96 P.C.] from five to fifteen years."
[Penal Code: Legislative Decree No. 5 of 16 December 1962. (Date of entry into force: 03 April 1964)].Crimes Against Humanity
No specific provision.
Genocide
No provision
War Crimes
No provision.
Jurisdiction Jurisdictional matters must be analised in the light of the current conflict in what is historically known as "Somalia".
The extraterritorial jurisdiction regime is provided for under the following articles of the 1962 Penal Code:"Art. 7. (Offences Committed Abroad Punishable Without Exception).–
Whoever commits any of the following offences [15 P.C.] in a foreign territory shall be punished according to Somali law:a. crimes against the personality of the State [184--239 P.C.];
b. crimes of counterfeiting the seal of the States or of using such counterfeited seal [360 P.C.];
c. crimes of counterfeiting money which is legal tender in the territory of the State [348 P.C.];
d. crimes committed by public officers [240 a P.C.] in the service of the State by abusing their powers or violating their duties [240--262 C.P.];
e. any other offence in respect of which Somali penal law is made applicable by law [8, 9 P.C.] or international conventions [6 Const.].""Art. 8. (Offences Committed Abroad Punishable Under Certain Conditions).–
1. Whoever, apart from the cases specified in article 7, commits in a foreign territory a crime [15 P.C.] against the State or against a Somali citizen [4 P.C.] shall be punished according to Somali law, provided that:a) the act or omission is considered an offence l15 P.C.] also by the law of the country in which it has been committed;
2. Whoever, apart from the cases specified in article 7, commits in a foreign territory a crime [15 P.C.], which is not a political crime [83 P.C.], to the prejudice of a foreign State or an alien, shall be punished according to Somali law, provided that:
b) the party injured has made a complaint [81 P.C.], unless the offence is exclusively against the State;
c) the offender is found in the territory of the State [4 Const., 4 P.C.] when the complaint is made, or when the penal proceedings are initiated.a) the act or omission is considered an offence [15 P.C.] also by the law of the country in which it has been committed;
3. For the purposes of penal law, any crime actuated, in whole or in part, by political motives shall be considered a «political crime»."
b) the party injured has made a complaint [81 P.C.];
c) the offender is found in the territory of the State [4Const., 4 P.C.] when the complaint is made;
d) extradition [19 Const., 11 P.C.] is not granted or agreed to by the Government of the State in which the offence was committed or by that of the State to which the offender belongs;
e) the prosecution is authorized by the Minister of Grace and Justice."Art. 9. (Cases in which Criminal Proceedings Cannot Be Instituted).-
And also:
Apart from the cases specified in article 7, criminal proceedings for a crime committed abroad cannot be instituted against a person who was finally acquitted abroad of the same crime or against a person who, abroad, has been convicted of a crime and has served the sentence prescribed therefore.""Art. 459. (Crimes Committed Abroad).– Notwithstanding the provisions of article 8, the provisions of this Section [Section I "Crimes against Human Personality": slavery and enforced subjection] shall also apply when the act is committed abroad [4 Const., 4 P.C.] to the prejudice of a Somali national, provided that the offender is within the territory of the State when criminal proceedings are initiated."
International Criminal Court
Rome Statute of the International Criminal Court: The Federal Republic of Somalia is not a state party to the Rome Statute of the International Criminal Court.
Provisional Constitution of the Federal Republic of Somalia. (Adopted August 1, 2012)
Human Rights Library, University of Minnesota. [ENG] [Last accessed 22Jul17]. [External Link to pdf document]
The Constitution of the Republic of Somaliland. (2000)
Somaliland Law. [ENG]. [Last accessed 22Jul17]. [External Link ]
Penal Code. (Legislative Decree No. 5 of 16 December 1962)
NATLEX, International Labour Organization. [ENG]. [Last accessed 22Jul17]. [External Link]
Criminal Procedure Code. (Legislative Decree No: 1 of 1 June 1963. Date of entry into force: 31 March 1965.)
NATLEX, International Labour Organization. [ENG]. [Last accessed 22Jul17]. [External Link]
Somalia - Basic laws
NATLEX, International Labour Organization. [ENG]. [Last accessed 22Jul17]. [External Link]
Somaliland Law : An Overview.
Somaliland Law. [ENG]. [Last accessed 22Jul17]. [External Link]
African Union Mission In Somalia.
[ENG]. [Last accessed 22Jul17]. [External Link]
United Nations Assistance Mission in Somalia (UNSOM).
UN Department of Political Affairs. [ENG]. [Last accessed 22Jul17]. [External Link]
[The United Nations Assistance Mission in Somalia (UNSOM) was established on 3 June 2013 by UN Security Council Resolution 2102, following a comprehensive assessment of the United Nations in support of the establishment of the Federal Government of Somalia. The mandate of UNSOM was subsequently renewed by Security Council resolutions on an annual basis since 2014.]
United Nations Political Office for Somalia (UNPOS) .
UN Department of Political Affairs. [ENG]. [Last accessed 22Jul17]. [External Link]
Somalia - UNOSOM I.
United Nations Operation in Somalia, United Nations. [ENG]. [Last accessed 22Jul17]. [External Link]
Somalia - UNOSOM II.
United Nations Operation in Somalia, United Nations. [ENG]. [Last accessed 22Jul17]. [External Link]Somali plaintiff v. Federal Republic of Germany
Administrative Court of Cologne, Federal Republic of Germany, Case no. 4 K 5467/15, 27 April 2016. [ENG]. [Last accessed 23Jul17]. [External Link]Somali drone victims v. State of the Netherlands 2014. [ENG]. [Last accessed 23Jul17]. [External Link]
Why Somaliland is not a recognised state.
The Economist, London. [ENG]. [Last accessed 22Jul17]. [External Link]
Somalia profile - Timeline.
BBC. [ENG]. [Last accessed 22Jul17]. [External Link]
List of International Humanitarian Law Treaties to which Somalia is a State party. [ENG]
(International Committee of the Red Cross). [ENG]. [Last accessed 31May17]. [External Link]