On Thursday of the past week, the Kenyan government confirmed that its troops had been sent into the territory of its neighbours, Somalia, in response to the recent spates of kidnappings allegedly perpetrated by the al-Shabab militia who operate out of Somalia.
The Kenyan Incursion
Al-Shabab, which is said to be strongly linked to al-Qaeda and who exercise control over Southern and central Somalia are blamed for the killing of Briton, David Tebutt and the abduction of his wife from a Kenyan resort, the killing of a French woman following her kidnap from her holiday home in Kenya and the kidnap of aid workers – Montserrat Serra and Blanca Thiebout – of Medicins Sans Frontieres (MSF) who were recently seized from a refugee camp at the Kenya-Somalia border. “The security of our country is paramount. We will defend our territorial integrity through all measures necessary to ensure peace and stability” stated Kenyan President Mwai Kibaki to the press on 20th October 2011. Mr Kibaki added that “all necessary measures” included military operation within and outside Kenya.
Legal Basis
The Kenyan government insist that the UN Charter legitimises its incursion into foreign territory. “These measures will involve invoking Article 51 of the UN Charter that pronounces self-defence as an inherent right and which is also keeping with the current Kenyan constitution,” said the Kenyan Minister for Internal Security, George Saitoti. The legal instrument referred to by Mr Saitoti, that is Article 51 of the UN Charter, provides that: “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 UN.” In line with this provision, it would appear that Kenya is thus legally entitled to resort to force.
The Somalian Position
However, the Somalian position is acutely converse to the views espoused by the Kenyan government which justifies its operation on Somalian soil. Somalia’s envoy to the UN, Omar Jamal, has stated that the Kenyan incursion constituted a violation of its sovereignty. Mr Jamal stated: “There is a very serious concern from the Kenyan government that there have been some kidnappings in their country, but at the same time I think that to take the very unilateral action of going into Somali territory is a breach of international law.” In an interview, the contents of which was published in an article in The Independent on 17th October 2011, the Somalian Ambassador to Kenya, Mohammed Ali Nur, reiterated the views of Omar Jamal on what he perceives as a clear violation of its territory by Kenya. “As a sovereign country we cannot condone any country crossing our border…we will not allow any country to invade us.”
Self defence against non-State actors
Of course, every country has a right to defend itself against armed attacks and in this vein many will agree that the Kenyan government is entitled to take measures, military and otherwise in response. However, the issue of the legality of counter-measures adopted by Kenya is threatening to strain the relationship between the UN-backed Somalian transitional government and the Kenyan government. Unfortunately the text of the UN Charter fails to resolve the disagreement between the countries. The difficulty lies in the fact that the UN Charter was drawn up at a time when armed attacks by non-State actors against another State was a rarity, or perhaps not anticipated to constitute the problem which has achieved conundrum-like status. It was therefore left for case law, academics, UN resolutions and the International courts to attempt to purify the muddied waters. Importantly, Judges at the International Court of Justice (ICJ), whilst considering the legality of the construction of a wall in occupied Palestinian territory, discussed the matter of whether Article 51 of the Charter recognises the existence of an inherent right to self defence in the case of an attack on a State by a non-State actor. Needless to say, the great opportunity which lent itself to these legal practitioners to clarify matters was squandered following disagreements over the interpretation of the said Article of the Charter.
Muddied waters
However, Resolution 1368 (2001) and Resolution 1373 (2001) which were adopted in the aftermath of the 9/11 attacks both appear to acknowledge a right to respond to such attacks although there has been no resolution since then with similar wording or impact. If this is an endorsement of the above, then it would appear that the Kenyan government’s actions are legal under international law. However this assertion would also seem to suggest that Rwanda may legitimately attack Congo DRC for harbouring forces aligned with the Democratic Forces for the Liberation of Rwanda (FDLR) which threaten the Rwandan border, or that Uganda may be entitled to legitimately launch military action against Congo DRC for harbouring Joseph Kony’s Lord’s Resistance Army (LRA) which has waged a 20 year rebellion against the Ugandan government of President Yoweri Museveni. In addition, the prospect may also exist of a full blown conflict between the NATO-propped Afghanistan government and Pakistan over what the US perceive to be the Pakistani government’s support for al-Qaeda and the Haqqani militia who utilise Pakistani territory in making their forays into Afghanistan. In the earlier referred-to Congo DRC cases, the Congolese government seems to lack the capacity to expel, as is the case in Somalia, the terror groups from operating within its territory. Given the increasingly complex world in which we live in, it goes without saying that the immediate clarification of this issue is imperative if the current misunderstanding relating to the text and scope of Article 51 is not to be replicated in the future.
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