In (Hot) Pursuit of Justice? The Legality of Kenyan Military Operations in Somalia

Document Cited authorities (1) Cited in Related
Pages471-482
DOI10.3366/ajicl.2012.0046
AuthorEdel Hughes
Published date01 October 2012
Date01 October 2012
I. INTRODUCTION

In October 2011 the Kenyan government announced at a press conference held in Nairobi that it would be undertaking military operations against al-Shabaab militants in Somali territory after a series of kidnappings in the area attributed to the Islamic militant group.1

See ‘Kenya Sends Troops into Somalia to Hit Al-Shabaab’, BBC News, 17 October 2011, available at http://www.bbc.co.uk/news/world-africa-15331448 (accessed 8 February 2012).

Kenya, which has been ‘determinedly non-interventionist’ since gaining independence in 1963, sent several thousand troops into neighbouring Somalia with a military objective of pushing on from its positions in the Somali towns of Afmadow and Ras Kamboni to attack Kismayo from the west and south, hoping to ‘inflict trauma and damage’ on al-Shabaab.2

See ‘Kenya Invades Somalia: A Big Gamble’, The Economist, 29 October 2011.

 Since October, various successes in defeating al-Shabaab have been reported in the international media, with the capital Mogadishu as well as a number of other strategic towns now reportedly free from al-Shabaab militants. Kenyan troops may now have been integrated into AMISOM, the African Union Mission in Somalia,3

‘Signing of MoU between the Commission of the African Union and the Government of the Republic of Kenya as Troops and Resources Contributing Country to AMISOM’, AMISOM Press Release, 2 June 2012, available at http://amisom-au.org/2012/06/signing-of-mou-between-the-commission-of-the-african-union-and-the-government-of-the-republic-of-kenya-as-troops-and-resources-contributi%E2%80%8Bng-country-to-amisom/ (accessed 18 June 2012).

 but what has remained unexamined is the legality of Kenya's decision to conduct military operations in Somali territory. This article will address this issue by providing a brief overview of the law on self-defence and offering a comparative analysis through the lens of Turkish military operations in northern Iraq II. THE RIGHT OF SELF-DEFENCE

Operation Linda Nchi (Protect the Nation), which Kenya launched in mid-October 2011, was ostensibly in response to al-Shabaab activity in Kenya and in particular the kidnapping of two female Spanish aid workers on 13 October 2011 who were working with Médecins Sans Frontières in the Dadaab refugee settlement in northern Kenya.4

X. Rice, ‘Two Aid Workers Kidnapped from Kenyan Refugee Camp’, The Guardian, 13 October 2011.

It has, however, been suggested that the Kenyan operations in Somalia were planned far in advance of the events of October 2011. Rémy notes that ‘[s]everal sources agree … that the Kenyan intervention plan was discussed and decided in 2010, then finalised with input from western partners, including the US and to a lesser extent France. Nairobi seems to have seized on kidnappings of foreign nationals by Somali groups on Kenyan territory as an excuse to launch an operation ready and waiting.’5

J.-P. Rémy, ‘Kenya Develops Plan for Satellite Region of Jubaland on Somali Border’, The Guardian, 8 November 2011.

 Branch too has suggested that Kenya's incursion into Somalia was driven less by the threat of al-Shabaab and more by domestic military and political dynamics: ‘Kenya will celebrate the fiftieth anniversary of its independence in 2013, and so far the country has never once gone to war with another state. But, recently, as Washington has funnelled counterterrorism funds into East Africa and underwritten a stronger Kenyan military, the country's military has grown more confident and combative.’6

D. Branch, ‘Why Kenya Invaded Somalia: The Opening of an Aggressive New Chapter’, Foreign Affairs, 15 November 2011.

The US claimed that the October 2011 offensive took them by surprise, which, it has been noted, hardly seemed credible, ‘especially since several of the missiles fired at jihadist fighters hidden in the mangrove swamps on the Somali side of the border seem to have been fired from American drones or submarines’.7

‘Kenya Invades Somalia: A Big Gamble’, supra note 2. Several ‘wikileaks’ files concerning the US relationship with both Kenya and Somalia have also been released suggesting that the USA knew of the Kenyan plans to conduct military operations in Somalia. See ‘Somalia Wikileaks Cables’, available at http://www.telegraph.co.uk/news/wikileaks-files/somalia-wikileaks/ (accessed 5 June 2012).

In fact under the rules established by the Intergovernmental Authority on Development in Eastern Africa (IGAD), comprising Djibouti, Ethiopia, Kenya, Somalia, Sudan and Uganda, no other country is empowered to launch a military intervention in Somalia,8

Rémy, supra note 5. For detail on the history and objectives of IGAD, see http://www.africa-union.org/root/au/recs/igad.htm (accessed 17 June 2012)

 so it seems unlikely that the Kenyan action would have come as a complete surprise. Nonetheless, although Kenyan officials claimed that troops were deployed with the approval of the Transitional Federal Government of Somalia (TFG), President Sheikh Sharif Ahmed, head of the TFG, asserted that Kenyan support in terms of training and logistics was welcome but his government and the people of Somalia were opposed to the presence of the Kenyan army on Somali territory.9

See ‘France to Support Kenya's Incursion into Somalia’, BBC News, 25 October 2011, available at http://www.bbc.co.uk/news/world-africa-15446110 (accessed 8 February 2012).

Kenya's internal security minister, George Saitoti, forcefully argued Kenya's right to conduct military operations in Somali territory, noting, ‘Kenya has been and remains an island of peace, and we shall not allow criminals from Somalia, which has been fighting for over two decades, to destabilize our peace.’10

Cited in Branch, supra note 6.

Yusuf Haji, the Defence Minister, was equally defiant and at the press conference announcing the planned operations both ministers invoked article 51 of the United Nations Charter, concerning the right of self-defence should an armed attack be perpetrated on a United Nations member state.11

See ‘Kenya Vows to Defend its Territory’, KBC News, 15 October 2011, available at http://www.kbc.co.ke/news.asp?nid=72938 (accessed 10 June 2012).

 The Kenyan reliance on article 51 of the Charter raises a number of interesting questions. Article 51 states

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.12

Charter of the United Nations, signed on 26 June 1945, in San Francisco at the conclusion of the United Nations Conference on International Organization.

 There has been much scholarly discussion of article 51 of the Charter, and the predominant view, prior to the events of 11 September 2001 at least, was that, in order for a State to avail itself of the right of self-defence, the ‘armed attack’ must emanate from another State.13

See, for example, A. Cassese, ‘The International Community's “Legal” Response to Terrorism’, 38 The International and Comparative Law Quarterly (1989): 589, 596; and J. L. Kunz, ‘Individuals and Collective Self-Defense in article 51 of the Charter of the United Nations’, 41 American Journal of International Law (1947): 872, 878.

 Although many commentators still maintain this proposition, there is a considerable body of literature that suggests an expansion of the doctrine of self-defence and a right of States to use unilateral force against non-State actors, particularly suspected ‘terrorists’. What Tams refers to as the ‘restrictive analysis’ was the mainstream approach to jus ad bellum prior to 2001 and was characterised by ‘seeking to limit the availability of military force to the largest extent possible’.14

C. J. Tams, ‘The Use of Force Against Terrorists’, 20(2) European Journal of International Law (2009): 359–97, 363. This approach, Tams asserts, is evident in decisions of the ICJ such as the Corfu Channel and Nicaragua cases.

 Also relevant to the discussion here is article 2(4) of the UN Charter, which states that ‘[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.’15

Charter of the United Nations, supra note 12.

 Although article 51 is seen as a legitimate exception to article 2(4), it is an exception that has been narrowly construed

The ‘restrictive analysis’ has, however, come under pressure in recent years. Although the formal rules outlined in the Charter remain the same, ‘the fight against terrorism is increasingly regarded as a legitimate cause which might warrant a “military approach” and allow readjustments to the jus ad bellum’.16

Tams, ‘The Use of Force Against Terrorists’, supra note 14, p. 374 (footnotes omitted).

This is most starkly illustrated by the response of the USA to the attacks of 11 September 2001 and the general acquiescence of UN member states that the measures could be taken in self-defence. While ‘Operation Enduring Freedom’ is frequently lauded as a turning...

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