By Ronald Rogo (rogo.ronald@gmail.com)

Introduction

In October 2011Operation Linda Nchi (Kiswahili for “Protect the Country”) was launched by the Kenya Defence Forces (KDF). Operation Linda Nchi was the code name for the military incursion into southern Somalia. The ostensible goal of the military adventures was to crash and hopefully eliminate the threat posed by the Al Shabaab, a terrorist organization operating in Somalia and with reported links to the Al Qaeda terror group. The immediate cause of this unusual turn of events[1] was the kidnapping of two Spanish aid workers working with the Médecins Sans Frontières, an international humanitarian organization, from the Dadaab refugee camp in Northern Kenya. It was alleged that this kidnapping was planned and executed by the Al Shabaab. Although the military incursion in response to the kidnappings did not have an exit date it was apparent from the various press statements by the KDF spokesperson that their immediate goal was to capture the port town of Kismayu. With this it was hoped that the Al Shabaab’s main source of funds and supplies would be cut off and the organization would be crippled. Incidentally, with this military incursion, Kenya joined a growing list of countries that have used the war against terrorism as justification for waging war outside their borders[2].

The initial reports from the government of Kenya were that the incursion was made at the invitation of the Transitional Federal Government of Somalia (TFG)[3]. However, subsequent reports brought into doubt whether there was active, or even passive, concurrence of the TFG as initially reported and the Kenyan government was forced to engage in hurried face saving diplomatic overdrive measures. Later, the KDF operation was merged with the African Union operation. Financial and material support was also obtained from the United States of America and the European Union among others.

This article will analyze the legal basis for this “war” against terrorism initially started by the KDF. The main thrust of the article is that the war paradigm cannot be used as justification for a “war” against terrorism as it does not fit into the many legal categories of war. Instead, nations need to come up with another perspective when confronting terrorism that will both be tenable and legally justifiable. Operation Linda Nchi will be used as the case study. The incursion of Kenya into Somalia will be the case study.

The Law of Wars

International humanitarian law (IHL) is the branch of law that governs and guides the relations between states that are in a state of war. It is more commonly described as the law of war. As a result, IHL not only stipulates when nations can justifiably go to war (jus ad bellum) but it also governs the conduct of the parties to the conflict when the state of conflict continues (jus in bello). For example, IHL states what types of targets are justifiable and also the amount and type of force that can be used by the parties in order to disarm the adversary. In this regard, the Geneva Conventions[4], to which Kenya is a signatory, are almost universally accepted as the source of these regulations. The Hague Convention is also recognized as a source of IHL, albeit to a smaller extent.

What “War” Against Terrorists ?

It is difficult to acceptably define the term war. Instead, the legal equivalent term of “armed conflict” is usually used in most legal texts. An armed conflict is seen to arise whenever there is “any difference arising between two States and leading to the intervention of members of the armed forces”. This definition presupposes that there are two sides to the conflict who engage in arms in order to resolve their conflict. There is usually a state of armed conflict between two parties. In addition, the traditional view has been that war is generally an international armed conflict that takes place between two nation states, each trying to assert its will on the other. However, as we shall see later, with the increase in the number and intensity of civil wars there has been recognition that there could be a non international armed conflict that occurs between one group and the governing entity.

Based on the above it is doubtful whether one could legally engage in an armed conflict with terrorists. Whereas it is correct that the armed forces of a particular state could be deployed to hunt out, capture and kill terrorists, such as the KDF has done in Somalia, the terrorists do not, in turn, have an armed force that could then result in an armed conflict. In reality any “war” against terrorists does not have the typical ingredients of a battlefield clash; be it in the air, on the land or over the waters. Since terrorists engage in their criminal activities under the cover of ordinary daily occurrences, it is unrealistic to expect them to engage directly with a country’s armed forces. Instead, depending on the particular modus operandi of the particular terrorist organization one would expect that they would attempt to mingle with innocent civilians.

Under IHL the “members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities”[5]. As combatants, the members of any armed forces can therefore be legitimately targeted by the enemy and either be killed or disarmed. This right includes the right to target and kill them even when they are not aware that they are being targeted, so long as the state of warfare continues and so long as the all the other precautionary measures have been considered[6]. However, in relation to anyone who is not a member of the armed forces of a Party remains a civilian and ought therefore not to be targeted in a state of war. Consequently, since the members of the Al Shabaab are not members of the armed forces of Somalia (or do not even pretend to represent the forces of Somalia), they will always, under the prism of law, be seen as civilians. The only time they can be legitimately targeted is when they directly engage in hostilities and therefore lose the cover of protection of the law. Thus any killings, even in a supposed state of warfare, are justifiable on condition that one can prove that the terrorists were directly participating in hostilities during the state of armed conflict.

In addition it is difficult to see how the Kenyan “war” against terrorism fits into any of the currently recognized categories of armed conflicts. These categories are international armed conflicts or non international armed conflicts. Let me analyze these further.

(i) International Armed Conflicts

Common Article 2(1) of the 1949 Geneva Conventions is the one that is used to guide the conduct of international armed conflicts. The Article provides as follows:

“the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance”.

While there is no general legal definition for an “international armed conflict” the International Criminal Court (ICC) ruled in the Lubanga case that an armed conflict is of an international character if “it takes place between two or more States”. The court further held that an international armed conflict also “this extends to the partial or total occupation of the territory of another State, whether or not the said occupation meets with armed resistance.”[7] Again, the ICC in the Bemba decision, held that “an international armed conflict exists in case of armed hostilities between States through their respective armed forces or other actors acting on behalf of the State”[8].

Concerning the concept of international armed conflict, the International Committee of the Red Cross (ICRC) commentary on Common Article 2 of the 1949 Geneva Conventions adds:

Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place. The respect due to the human person as such is not measured by the number of victims[9].

Based on the above it is impossible to characterize the KDF’s invasion of Somalia as an international armed conflict. This is because the two protagonists are not two states, rather a state (KDF) on one hand and a terrorist group (Al Shabaab) on the other hand.

(ii) Non-international Armed Conflict

This categorization was included in recognition of the reality that increasingly more conflicts occur and more deaths occur by reason of conflicts within the nation’s borders rather than by cross border conflicts. Thus according to Common Article 3, the armed conflict not of an international character must occur within the territory of the State[10]. The Additional Protocol II[11], (hereinafter “Additional Protocol II”) in supplementing and further expanding the Common Article 3 also provides as follows:

This Protocol […] shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

In order for an internal conflict to be qualified as a non international armed conflict and therefore to be covered by IHL there are certain necessary ingredients that must be met. The main one is that the threshold of the conflict must exceed that of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

Article 3 common to the Geneva Conventions of 1949 provides that “this Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts”. In applying this provision the ICTY Appeals Chamber decision in the Tadic case held as follows:

“an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there[12]

On the question as to whether a group qualifies as an organized armed group the Akayesu decision held that “[t]he term ‘armed conflict’ in itself suggests the existence of hostilities between armed forces organized to a greater or lesser extent. This consequently rules out situations of internal disturbances and tensions”. Further in the Lubanga decision, while setting out the characteristics of a non international armed conflict the court held that one should consider “the force or group’s internal hierarchy; the command structure and rules; the extent to which military equipment, including firearms, are available; the force or group’s ability to plan military operations and put them into effect; and the extent, seriousness, and intensity of any military involvement”[13]

However, there are still plenty of difficulties with such an assessment in relation to the KDF military adventure. Firstly, in order for a conflict to be characterized as a non international armed conflict, it must “take place in the territory of a High Contracting Party”[14]. This means that the theatre of the conflict should have been in Kenya, not Somalia. While the TFG could make the argument that when it combats Al Shabaab it is engaging in a non international armed conflict, the KDF cannot. Again, it was important to show that the Al Shabaab is “under responsible command, (and that it) exercise(s) such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol[15]. Significantly, the KDF operation cannot meet the requirements of a non international armed conflict on this score too. Apart from repeated isolated attacks in Kenya it cannot be said that the Al Shabaab controlled a part (or any part of Kenya) of Kenya as at the time of the invasion. Further, the KDF has not engaged militarily with any Al Shabaab terrorist groups within Kenya. Lastly, the law requires the military operations of the armed group to be “sustained and concerted”. Although the Al Shabaab has conducted raids on Kenyan soil, it would be a stretch to characterize them as either sustained or concerted.

Conclusion

From the above, it is evident that the use of a war paradigm when describing the invasion in Somalia is tenuous. There is therefore need to rethink the label used. It has been suggested before that any attack by terrorist groups ought to be considered as criminal activities that require police response-even militarized police response-rather than acts of war that require full scale utilization of a nation’s armed forces. In the American case of Holiday Inns, Inc. v. Aetna Ins. Co.[16], the court stated that “The international law definition of war refers to and includes only hostilities carried on by entities that constitute governments at least de facto in character”. Stacie Gorman also stated as follows:

“terrorists are criminals, and not soldiers of war… The practice of trying terrorists in a court of law suggests that the United States has, in the past, recognized that it is limited in its ability to declare war against terrorist groups”[17]

It is my view there was no armed conflict between the KDF and the Al Shabaab. Although it is correct that the Al Shabaab leadership leadership had declared war upon the nation of Kenya and the KDF had done the same in relation to the Al Shabaab these declarations, by themselves, did not mean that a state of armed conflict existed under IHL. Rhetoric does not give rise to a state of armed conflict. Conversely, the lack of any war declarations does not, ipso facto, mean that there is no armed conflict already in existence. It is therefore important for more police action-rather than military activity-to be involved in this “war” against terrorists in the region. The former is not only more efficient as a tool but also legally congruent.