This is the second piece by Andrew Jillions on Kenya’s decision to invade Somalia. Check out Andrew’s first post here. Enjoy!

What are the implications behind Kenya’s decision to wage a war of enforcement instead of a humanitarian war?

Mary Ellen O’Connell has suggested that the issue of targeted killings and counter-terrorism raises a straight choice between observing peacetime law or the law of armed conflict.

International law, she argues, has clear enough rules on the circumstances in which one or the other framework applies. This is important: it provides a level of protection against state subjectivity, against the possibility of states playing with the rules to suit their own political purposes. That international law can ensure states make the right choice speaks to the independent power of international law against the attempts by policy makers to turn law into a reflection of power.

In more immediate and practical terms choice matters because it determines how extensive a state’s obligations will be. Choosing to apply, say, the law of armed conflict instead of human rights law will have a dramatic effect on determining the legality of detention and fair trial practices. The flip side of this is that by presenting an action or technology (e.g. nuclear weapons, drones and cyberwar, etc.) as in some substantive way ‘new’ and ungovernable under the existing framework can potentially beg the question about which law to apply.

This, at any rate, is one way to sketch the narrative of why ‘non-state armed groups’ have caused so many headaches for international lawyers trying to reign in the powers claimed by the US in the “war on terror”. There was a background ambiguity about which rules applied, an ambiguity that the US could exploit to co-opt law to their subjective agenda.

I’d suggest that there is something similar going on in Kenya, a narrative of choice that has implications for the practice of humanitarian intervention.

Saving citizens; ignoring strangers

Instead of talking about the humanitarian crisis, Kenya has ignored it. Al-Shabaab are by turns an international criminal organization and a threat to Kenya’s internal and border security. The law on the use of force – Article 51 – is the body of law they point to, although as I’ve suggested the reference to ‘hot pursuit’ makes the counter-terrorism enforcement framework a more likely candidate.

The name they’ve chosen for the operation is Linda Nchi, which translates as ‘protect the country’ in Swahili. On listening to the way Kenyan officials talk about the intervention there is no doubt which country the action is intended to protect. You could be forgiven for thinking that the great evils al-Shabaab have perpetrated are: radicalizing Kenyan nationals, secreting themselves amongst genuine refugees, attacks on border posts and assorted military and security personnel, kidnapping Western tourists and aid workers, and endangering the tourism industry . . . as many as nine separate incidents in all!

(Photo: AFP / Tony KARUMBA)

But what about al-Shabaab’s responsibility for famine crimes, war crimes and crimes against humanity? Perhaps the Kenyan government doesn’t think it is relevant or useful, or simply doesn’t care. Alex Perry suggests that this is no great surprise; war is exciting, humanitarian crisis is depressing. More than this, Kenya’s decision lasers in on how little humanitarian concerns count for in a straight fight against a states’ perceived political and strategic imperatives.

What comes as something of a surprise is that these political and strategic imperatives weren’t embedded in the humanitarian narrative. Whatever the opposition to Vietnam’s intervention in Cambodia (especially from countries worried about Soviet influence and the ‘red peril’), humanitarian intervention played a major part in the legitimation process. The US intervention in Iraq had a similar dynamic; whatever one’s views on the legitimacy of that intervention, the plight of the Iraqi people under Saddam Hussein was at least part of the US/UK legitimation strategy.

So the question is, what’s changed? Should we view Kenya in heroic terms here, as refusing to take part in a cooption of the humanitarian agenda by political interests, refusing to engage in hypocrisy?

Unable or unwilling to protect

Humanitarian intervention also uses a state’s inability or unwillingness to protect civilians in order to introduce exceptions to territorial integrity, the same principle undergirding an international enforcement regime. There is a consideration of gravity, but in contrast to the self-defence test (of sufficient scale and seriousness to meet criteria of necessity and proportionality), gravity is contained in the reference to international crimes. In other words, have there been violations amounting to war crimes, crimes against humanity, ethnic cleansing or genocide? The categories of international crime by definition set a high threshold for intervention in terms of a systematic and widespread pattern of atrocities.

International crimes are a crucial and, indeed, necessary part of the responsibility to protect. Where the original ICISS report on R2P allows for the state failure – and a correspondingly broad justification based on a state’s inability or unwillingness to protect individuals – this gets narrowed down in the 2005 World Summit Outcome Document and subsequent UN documents. International criminality is pushed to the forefront, with an understanding that R2P can be ‘applied specifically and only to four crimes and violations’, namely the core international crimes.

Somali troops deployed in reaction to the famine. (Photo: AP / Schalk van Zuydam)

This shouldn’t create a problem in the context of the Somali crisis. There is a clear basis on which famine in Somalia amounts to crimes against humanity. And there is no doubt at all that al-Shabaab have committed war crimes, including making life insufferable for children. But there is evidence of an enduring conservatism with respect to over-extending or watering down the category of crimes. This is reflected in debates about how broadly to apply R2P. Look, for example, to the split reactions to applying the framework to Burma in the wake of Cyclone Nargis. In many ways the fact that the ICC has not looked seriously at investigating the situation in Somalia provides enough of a reason to think that al-Shabaab’s acts are not perceived to reach the gravity threshold required for a judgment of international criminal responsibility, famine or not.

If we haven’t yet reached that threshold, states seem to have decided, then there’s a problem with invoking R2P. If we can’t or won’t identify criminally responsible agents, there’s no basis for humanitarian intervention.

Oh for an old school humanitarian intervention!

This raises a number of interesting questions about the current standing of humanitarian intervention (and unilateral humanitarian intervention), outside of the responsibility to protect framework, outside of a finding of criminal agency. One possible conclusion to draw from the Kenyan silence is that there is no such thing anymore as humanitarian intervention outside of this framework (yes, if there ever was . . . ). R2P is the orphan of humanitarian intervention.

Nostalgia is a troubling response to have to the development that has supposedly mainstreamed and solidified the humanitarian agenda. It should be a worry that states find it easier to violate sovereignty for enforcement purposes than in cases of genuine and desperate humanitarian need.

This is no neutral decision; choice matters in international law.