The Ineffectiveness of the Rome Statute

Syria. Egypt. Libya. The Democratic Republic of Congo. These are just a few of the countries where international crimes continue unabated. Nations where the perpetrators of impunity continue with their activities confident that there is little that the international community can do. In Kenya, two international crime suspects were elected to the two highest offices in the land[1]. Which then begs the questions: What went wrong with the enforcement of the resolutions of the Diplomatic Conference of Plenipotentiaries convened in Rome in 1998? [2] Apart from creating an administrative body based at the Hague and thousands of well paying jobs for the boys what else is there to celebrate about this treaty?  Continue reading

Sound Sentencing? Aggravating Factors in Lubanga

Written by: Regina Paulose

Hidden deep within the Rome Statute and the ICC Rules of Procedure of Evidence (RPE) are the sentencing guidelines for the ICC. These articles receive very little attention. This is most likely because there has been only one case which has reached the sentencing phase at the ICC. How the Chamber interprets aggravating factors and the challenges that lay ahead in the use of aggravating factors is the focus of my article this month. Continue reading

Do Not Touch My President

The election of Uhuru Kenyatta and William Ruto as President and Deputy President of Kenya respectively brings again to the foreground the issue of immunity from prosecution. The two are currently suspects of international crimes facing charges at the International Criminal Court. Do they, by virtue of their current status, enjoy any immunity-whether functional or personal-from prosecution by the International Criminal Court? This question, especially in light of the provisions of the Rome Statute, might seem to be obviously in the negative. After all the provisions of Article 27 are patently unambiguous:

“This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government…shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence”
“Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person”

One must applaud the attempt by the drafters to ensure that impunity is fought on all fronts. True, criminals should not be allowed to use their positions to hide from the natural consequences of their actions. The echo of this call comes all the way from the Nuremburg Military Tribunal. Indeed even the United Nations General Assembly affirmed the Nuremburg principles by resolution thus:
“(1) any person who commits an act which constitutes a crime under international law is personally responsible and as such is liable to punishment; (2) that the act is not in violation of internal law within the host State does not exempt responsibility for it under international law; (3) the status of the defendant does not exempt him from responsibility under international law; (4) that the act was an order by the government or superior does not exempt it from responsibility under international law; (5) any person charged with a crime in violation of international law has a right to a fair trial; (6) the crimes in violation of international law are crimes against peace, war crimes and crimes against humanity; (7) collaboration in the foregoing crimes is a crime under international law” (i)

The ICC itself has also had occasion to ruminate on the question of the immunity of a serving head of state. In the Bashir case(ii) on an application for warrants of arrest against the current President of Sudan, the court stated that the “current position of Omar Al Bashir as Head of a state which is not a party to the Statute, has no effect on the Court’s jurisdiction over the present case…(since) one of the core goals of the Statute is to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole which, must not go unpunished”(iii) . Thus, President Bashir became the first sitting head of state to face criminal charges in an international court.
Whereas the court’s reading of the law in the Bashir decision seems prima facie correct there was a lost opportunity to provide further guidance on an otherwise still grey area. If a head of state is indicted, for example, what privileges is he entitled to during the trial? Surely the individual who is the personification of an independent sovereign state should not have the same treatment as a common criminal. It would make sense, for example, to allow the head of state to forego all but very necessary appearances in court in light of his/her often punishing work schedule and, more importantly, so as to ensure that the lives of the nation are not held in suspense for years as the trial proceeds. It would also seem appropriate to allow the head of state to waive, if s/he chooses, any personal appearances in court so as not to embarrass the state concerned.
I also submit that the supposed removal of the immunity of heads of states is not without exceptions. Article 98 of the Rome statute for example provides as follows:
“1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that
third State for the waiver of the immunity.

2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender”

If therefore, for example, the government of Sudan has a bilateral agreement with say the government of Malaysia where each country agrees not to release the other country’s citizens to the ICC then Bashir’s immunity would prevail whenever he visits Malaysia. A warrant of arrest to all and sundry, such as the one issued by the Bashir court is therefore questionable.
If the immunity of heads of states is taken away then how, pray tell, do we deal with the other treaties that provide protection to them? What of customary international law that provides that heads of states are “untouchable”? The Vienna Convention on Diplomatic Relations 1961 for example, provides that “the person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity”(iv) . The rationale for this is simple: the diplomat represents the sending State. The principle of sovereign equality of States would therefore not countenance a situation where the host state arrests or charges the diplomat. Similarly, what applies for the diplomat would apply to the head of state. It would be a legal misnomer for the diplomat to be protected in order to preserve the “purposes and principles of the Charter of the United Nations concerning the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations”(v) while not affording the same level of protection to the heads of state. If, as has been decided, a host state cannot arrest or charge diplomats or heads of states in the national courts (vi), they should also not be able to arrest them at all (vii). The principle of sovereign equality of states is applicable at all times. Since there is no “international police force” any State that attempts to arrest a sitting head of state would be interfering with a cardinal principle of international law. Evidently therefore “the exercise of jurisdiction of international criminal courts can have serious consequences for the sovereign equality of states and the intercourse of international relations…just like the exercise of jurisdiction by domestic courts over foreign State officials, the ICC’s exercise of jurisdiction in such cases can engender severe repercussions for the fabric of inter-state relations. The exercise of jurisdiction by, the Court will affect, and be affected by, the same considerations of State sovereignty that inform the doctrine of head of state immunity and its application before domestic courts”(viii)

Lastly the practicality of removing the immunity of a sitting head of state is in doubt. Intricate relationships among states cannot allow this. With the knowledge of the repercussions of any attempt to arrest any sitting head of state, nay any senior government official, who, pray tell, would bell the cat?
_________________________________________________________________________(i) General Assembly Resolution, Affirmation of the Principles of International Law Recognized by the Charter of the Nurnberg Tribunal 95(I), 11 December 1946.

(ii) In the Case of the Prosecutor V. Omar Hassan Ahmad Al Bashir (“Omar Al Bashir”)- Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, No. ICC-02/05-01/09

(iii) Ibid para. 41-42

(iv) Article 29

(v) Preamble to the Convention

(vi) Heads of States immunity from the jurisdiction of national jurisdiction has been affirmed by the ICJ in Certain Questions of Mutual Judicial Assistance in Criminal Matters (Djibouti v France). For more see Immunities of State Officials, International Crimes, and Foreign Domestic Courts by Dapo Akande and Sangeeta Shah, EJIL (2010), Vol. 21 No. 4, 815–852- http://www.ejil.org/pdfs/21/4/2115.pdf

(vii) Admittedly, in the case of Prosecutor v Charles Ghankay Taylor, Case Number SCSL-2003-01-I, Decision on Immunity from Jurisdiction, 31 May 2004 the court held that “the principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.” But, since Mr Taylor was no longer serving as a head of state at the time, the considerations were different.

(viii) The Survival of Head of State Immunity at the International Criminal Court, Wardle, Phillip, Australian International Law Journal, Vol. 18

Why India Continues to Stay Out of ICC?

Written by Garima Tiwari

ICC, Author Vincent van Zeijst

 

 

“We can understand the need for the International Criminal Court to step in when confronted by situations such as in former Yugoslavia or Rwanda, where national judicial structures had completely broken down. But the correct response to such exceptional situations is not that all nations must constantly prove the viability of their judicial structures or find these overridden by the ICC.” – Indian delegate said in his official statement delivered at the Diplomatic Conference.[i]

Years after the establishment of International Criminal Court (hereinafter “ICC”) India has no indication of becoming a State Party to the Statute. The establishment of the ICC came out of the need for an independent, permanent criminal court to deal with heinous crimes of international concern. India’s decision to remain out of ICC is not something of an aberrant stand it took. Even when the International Military Tribunal for the Far East was established after the surrender of Japan at the end of Second World War, Dr. Radhabinod Pal, Judge from India gave a Dissenting Judgment .He refused to be bound by the charges brought against the defendants by the Prosecution. Consequently, Justice Pal declared the accused Japanese leaders innocent of all charges. [ii] This dissenting judgment of Justice Radhabinod Pal at the International Military Tribunal for the Far East) is of unique importance in the history of international law as a new interpretation of contemporary (i.e. history of the pre-second World War era) history of international events.[iii] Under the Charters of the Nuremberg and Tokyo Tribunals, radical changes were made in the definitions of international laws. These tribunals made definitions of new offenses and held individuals in power responsible for perpetrating such offenses. Justice Radhabinod Pal from India, however, refused to be carried by such an innovation. Justice R.B. Pal, however, vehemently opposed the changing concepts of international law.  In his judgment, he made a critical and detailed study of the status of international law in the first half of the twentieth century and argued that international law could not be changed by mere ipse dixit (dogmatic pronouncement) of the authors of the Charter in question.[iv]

At the time of the drafting of the Rome Statute, some of the fundamental objections given by Indian delegates in their opposition to the Court relate to the perceived role of the UN Security Council and its referral power. India has therefore, not signed and raitifed the statute. As mentioned by Mr. Lahiri, the principal objections of India to the Rome Statute have been the following:  [v]

  1. Made the ICC subordinate to the UN Security Council, and thus in effect to its permanent members, and their political interference, by providing it the power to refer cases to the ICC and the power to block ICC proceedings.
  2. Provided the extraordinary power to the UN Security Council to bind non-States Parties to the ICC ; this violates a fundamental principle of the Vienna Convention on the Law of Treaties that no state can be forced to accede to a treaty or be bound by the provisions of a treaty it has not accepted.
  3. Blurred the legal distinction between normative customary law and treaty obligations, particularly in respect of the definitions of crimes against humanity and their applicability to internal conflicts, placing countries in a position of being forced to acquiesce through the Rome Statutes to provisions of international treaties they have not yet accepted.
  4. Permitted no reservations or opt-out provisions to enable countries to safeguard their interests if placed in the above situation.
  5. Inappropriately vested wide competence and powers to initiate investigations and trigger jurisdiction of the ICC in the hands of an individual prosecutor.
  6. Refused to designate of the use of nuclear weapons and terrorism among crimes within the purview of the ICC, as proposed by India.[vi]

India has ratified Geneva Conventions and has even enacted Geneva Conventions Act 1960, but in practise, India has decided to overlook Common Article 3 in its special enactments, applicability and Supreme Court rulings. Moreover, it is normally and more extensively argued that at no point has the situation in India met the threshold required for the application of Common Article 3. Thus, India has not accepted the application of Common Article 3 of the Geneva Conventions to the situations prevailing in the country.

There are reports on hundreds of mass graves in Kashmir[vii]. Torture, hostage-taking, and rape have all been prominent abuses in the Kashmir conflict. Both security forces and armed militants have used rape as a weapon: to punish, intimidate, coerce, humiliate and degrade, but no we do not meet the threshold of Common Article 3.There is widespread and frequent fighting throughout Kashmir, recourse by the government to its regular armed forces, the organization of insurgents into armed forces with military commanders responsible for the actions of those forces and capable of adhering to laws of war obligations, the military nature of operations conducted on both sides, and the size of the insurgent forces and of the government’s military forces, which makes Common Article 3 is applicable to the conflict in Kashmir[viii]-but still Indian government argues that it does not meet the threshold for application of Common Article 3. This is because India has viewed the conflicts it has been beset with as domestic affairs, if above the ‘law and order’ level but certainly below that of a non-international armed conflict. As we know the definition of Non international armed conflict not having been attempted in Common Article 3, the threshold of its applicability is pitched high by domestic states. Governments are understandably reluctant because of sovereignty considerations to concede belligerency opportunities for the non-state groups who they accuse of posing an armed challenge to the state. [ix]This reluctance is despite Common Article 3 stating that its application ‘shall not affect the legal status of the Parties to the conflict.’[x]

Another example is, Armed Forces (Special Powers) Act, 1958 [xi]( hereinafter ‘AFSPA’), passed when  the Naga movement in the North eastern States for independence had just taken off. AFSPA has just six sections. The most damning are those in the fourth and sixth sections: the former enables security forces to “fire upon or otherwise use force, even to the causing of death” where laws are being violated. The latter says no criminal prosecution will lie against any person who has taken action under this act. While article 3 prohibits killing of innocent civilians in non-international armed conflict, AFSPA under section 4(a) gives wide ranging powers to the armed forces to use force to the extent of causing death on mere suspicion. This has occasioned the application of AFSPA without resorting to the emergency provisions that would then invite its accountability externally. In last 54 years, not a single army, or paramilitary officer or soldier has been prosecuted for murder, rape, destruction of property (including the burning of villages in the 1960s in Nagaland and Mizoram). [xii]There has been regrouping of villages in both places: villagers were forced to leave their homes at gunpoint, throw their belongings onto the back of a truck and move to a common site where they were herded together with strangers and formed new villages. It is a shameful and horrific history, which India knows little about and has cared even less for. [xiii]  There are extrajudicial executions, made emphatically in the north east region, which Government normally remains silent about. Justice Jeevan Reddy committee recommended the repeal of the AFSPA in 2005 but the findings and recommendations are buried as the government has neither taken a call on them nor made them public.[xiv]

Various reports, academic views as well as conferences, have  time and again highlighted the need for India to actually accept the common article 3 in practice. The Judiciary has failed its duty in this context by overlooking ‘judicial guarantees’ as required by the article. [xv]The situation of conflict that persists in Kashmir and the North-East explains the reasons for the state’s anxiety that this manner of violence could be referred to the ICC. Always arguing that the threshold  has not reached, India continuously evades application of Common Article 3. Some help  could have been taken from Additional Protocol II,where a lower threshold in found under Article 1(2) but India has not ratified the same. Even, the inclusion of ‘armed conflict not of an international character’ in defining ‘war crimes’ in Article 8 of the Statute for an ICC met with resistance from the Indian establishment.

There is a mild fear that if India signs Rome statue it would come under the jurisdiction of ICC under Common Article 3 and crimes against humanity during non-international armed conflict. This may be said to be a major reason for staying out of ICC since Articles 7 and 8 of the Rome Statute include such crimes, and no reservations are permitted, except the opt out provision  under Article 124 of the Statute . As Mr. Lahiri notes, “having become Party to so many human rights conventions, which requires India to submit a variety of periodic reports for UN scrutiny on domestic actions to implement these obligations, it is scarcely appropriate that India should assert impunity for the commission of the most heinous crimes imaginable in the course of combating domestic insurgencies.” [xvi] India also looks for an opt-in provision whereby a state could accept the jurisdiction of the ICC by declaration (possibly for a specified period), and this might be limited to particular conduct or to conduct committed during a particular period of time. The lack of such a provision, and the inherent jurisdiction which replaced it, are perceived as representing a violation of the consent of states, and thus a threat to sovereignty. India’s resistance to accepting the inherent jurisdiction of the ICC is explained, in part, by anxieties about how investigation, prosecution and criminal proceedings in the Indian system may be judged by an international court. Further elements giving rise to India’s misgivings are the fear that the Court might be used with political motives, the power conferred on the Prosecutor to initiate investigations proprio motu and the role allotted to the Security Council.[xvii]

Maybe in the future meetings of the ICC Assembly of Parties could well consider, for example, extending the Kampala ‘opt-out’ provisions .  Discussions on inclusion of terrorism and nuclear weapons are already taking place. [xviii]  Prosecution of Indian officers , leaders and army by ICC, is an overstretch and the jurisdiction over India under the UNSC referral process is possible even if India stays out of ICC . [xix] India should immediately ensure substantive and effective participation in ICC deliberative and negotiating bodies which it is entitled to attend as an observer. [xx] Most of the objections and concerns seem to have waned over the years. Moreover, heightened activities on the ICC in India in the past year have generated greater participation and interest from diverse constituencies including parliamentarians, academia, media and various civil society groups.[xxi]

India has been subject to international dispute settlement bodies, such as the Dispute Settlement Body of the World Trade Organization and the International Court of Justice, amongst others. State sovereignty is not compromised merely because a nation-state agrees to subject itself to an international court that can exercise jurisdiction over its officials. [xxii]Several legal provisions found in the Indian Constitution and the criminal laws of India are antecedents to many of the principles found in the Rome Statute – the presumption of innocence, principle of legality, proof of guilt beyond reasonable doubt, fair trial, legal aid and the right to remain silent, amongst others.[xxiii] Thus, India might have seriously misjudged the legal, political and social repercussions of opposing the Rome Statute, and risks further erosion of credibility if it altogether repudiates the Statute, and with it, its sizable practical advantages for protecting the dual interests of its nationals as individuals serving their country abroad, and of its national security.[xxiv]

Till India signs the Rome Statute it must be stated that the standards set by the Rome Statute could be of use in the region regardless of its poor record of ratification. For instance, the Rome standards have been used to promote law reform at the national level in India, as well as to provide redress to victims before national Courts in Sri Lanka. Thus, as mentioned in the ICC Outreach, although the importance of the Court in fighting impunity worldwide is undisputable, the ICC also exists as a tool to strengthen national legal systems and provide redress to victim. [xxv]

 

[i] India and the ICC, Usha Ramanathan, available at http://www.ielrc.org/content/a0505.pdf

[ii] Judgment of Justice Radhabino Pal at the Tokyo War Crimes Trial, 1946-48, A. F. M. Shamsur Rahman available at http://www.asiaticsociety.org.bd/journals/June_2010/contents/04_AFMShamsuRahman.htm

[iii] R. John Pritchard & Sonia M. Zaide (eds.), “The Dissenting Opinion of the Member for India R.B. al” inThe Tokyo War Crimes Trial, (New York & London: Garland, 1981), Vol. I. p. 21

[iv] Supra n.2

[v] Dilip Lahiri, Should India continue to stay out of ICC? (published on 24 November 2010) Available at http://www.orfonline.org/research/should-india-continue-to-stay-out-of-icc/

[vi] Ibid

[vii] http://www.kashmirprocess.org/reports/graves/BuriedEvidenceKashmir.pdf

[viii] India’s Secret Army in Kashmir, New Patterns of Abuse Emerge in the Conflict http://www.hrw.org/reports/1996/India2.htm#P211_52287

[ix] Roderic Alley, “Internal Conflict and the International Community: Wars without end?”, Aldershot: Ashgate Publishing Company, 2004, p 120.

[x] Common Article 3 states: ‘The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”

[xi] The Armed Forces (Special Powers) Act  1958 available at http://mha.nic.in/pdfs/armed_forces_special_powers_act1958.pdf

[xii] Sanjoy Hazarika, An Abomination Called AFSPA,Febryary 12, 2013, The Hindu available at http://www.thehindu.com/opinion/lead/an-abomination-called-afspa/article4404804.ece

[xiii] Ibid

[xiv] Sanajaoba, Armed Forces Special Power Act, 1958- A Law for Extra judicial Execution in Perpetuity, at http://openspace.org.in/node/461

[xv] Ibid

[xvi] Supra n. 5

[xvii] Supra n. 1

[xviii] Jane Boulden,Thomas G. Weiss, Terrorism and the UN: Before and After September 11, Indiana University press, (2004) p. 65-66

[xix] Supra n 5 ( refer conclusions)

[xx] http://www.frontline.in/navigation/?type=static&page=flonnet&rdurl=fl1807/18070670.htmhttp://www.sikhsangat.com/index.php?/topic/38139-why-india-rejects-the-international-criminal-court/

[xxi] Coalition of International Criminal Court,India, at http://www.iccnow.org/?mod=country&iduct=77

[xxii] Abraham, What Are we Scared of? Available at http://www.boloji.com/index.cfm?md=Content&sd=Articles&ArticleID=5471

[xxiii] Ibid

[xxiv] Rishav Banerjee, Rome Statute and India: An Analysis of India?s Attitude towards the International Criminal Court, Journal of East Asia & International Law › Nbr. 4-2, October 2011

[xxv] The ICC can wait, Justice Cannot , available at http://www.un.int/india/2011/ind1953.pdf

 

 

Unroll the War Drums, Change the Paradigm

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

In October 2011 Operation Linda Nchi (Kiswahili for “Protect the Country”) was launched by the Kenya Defence Forces (KDF). Operation Linda Nchi was the code name for Kenya’s 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 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. 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 .

However, the war paradigm cannot be used as justification for a “war” against terrorism as it does not fit into any of the recognised legal categories of armed conflict. Instead, nations need to come up with another perspective when confronting terrorism that will both be tenable and legally justifiable. First, the UN Charter recognizes the right of a state to respond by force using its armed forces in cases of self defence. However, the initial attack must rise to the level where it causes “necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation” for the responding state. This means that the state must be put in a position where the only feasible option would be to roll out its armed forces. Clearly, it is doubtful whether a solitary terrorist attack would be able to meet this qualification.

Secondly, 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. 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.
In the Lubanga case the International Criminal Court held that an armed conflict is of an international character if “it takes place between two or more States” and that “this extends to the partial or total occupation of the territory of another State, whether or not the said occupation meets with armed resistance.” 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” .
A non international armed conflict, on the other hand, must occur within the territory of the State . The Additional Protocol II , provides that the non state actor must be “under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations”. Thus, 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. 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” .

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” .

Again, 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” . This means that the theatre of the conflict should have been in Kenya, not Somalia. While the government of Somalia could make the argument that when it combats Al Shabaab it is engaging in a non international armed conflict, the KDF cannot. 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 confronting the Al Shabaab terror group in Somalia-or any other terror group for that matter-is tenuous. In reality, attacks by terrorist groups ought to be considered as criminal activities that require police response-even militarized police response if necessary-rather than acts of war. As Stacie Gorman has stated:

“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”

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 are not only more efficient in counter terrorism operations but will not suffer legal incongruity.