http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017
Kenya's Criminal Assault on Famine-Stricken Somalia
Sunday 18 December 2011
by: Stephen Roblin, Truthout | News Analysis
On October 15, Kenya's top security chiefs declared
war<
http://allafrica.com/stories/printable/201110160138.html>on
Al Shabaab, the loose coalition of Islamist militias that controls southern
Somalia. The next day, hundreds of Kenyan soldiers in armored trucks and
tanks reportedly
"stormed<
http://www.nytimes.com/2011/10/17/world/africa/kenyan-forces-enter-somalia-to-battle-shabab.html?_r=3>"
across Kenya's northern border and into the region with the goal of
decimating an Islamist coalition that was originally catapulted to
dominance in 2007 consequent to a US-backed Ethiopian intervention.
Since then, Kenyan airstrikes have been clearing the way for Kenyan
soldiers and their Somali proxy forces as they move deeper into southern
Somalia, a region from which Al Shabaab has waged a bitter war against
Somalia's Mogadishu-based Transitional Federal Government (TFG) and the
African Union (AU) "peacekeeping" mission (AMISOM) that has prevented its
collapse. Ethiopian troops have
reportedly<
http://allafrica.com/stories/201111212079.html> joined
the invasion where they are primarily targeting Al Shabaab strongholds in
central Somalia.
Southern Somalia is currently the
"epicenter<
http://www.nytimes.com/2011/09/06/world/africa/06somalia.html>"
of a famine that the UN believes could claim up to
250,000<
http://www.nytimes.com/2011/11/19/world/africa/somalia-famine-eases-with-rainfall-and-aid.html>
lives
in coming months. Famine relief efforts have been crippled by three major
factors: Al Shabaab's partial ban on aid agencies, the large-scale theft of
food aid by TFG-affiliated militias, and US aid restrictions - the last of
which have effectively criminalized humanitarian assistance in southern
Somalia since 2008.
The Kenyan intervention now joins the factors cited above as a primary
obstacle to overcoming "the worst humanitarian crisis in the world
today<
http://www.telegraph.co.uk/news/worldnews/africaandindianocean/kenya/8630601/Kenya-refuses-to-open-empty-refugee-camp-as-thousands-flee-famine.html>."
In fact, the United Nations Office for the Coordination of Humanitarian
Affairs (OCHA) has already found that intervention is limiting humanitarian
access and has stated unequivocally that "[t]he hostilities threaten the
lives of those in crisis and the ongoing humanitarian efforts to assist
them."[1]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[1]>
Pushing hundreds of thousands of Somalis closer to the brink of starvation,
however, has done nothing to deter Kenya, nor its backers, from pursuing
what is clearly an illegal intervention.
*Good Launchpad*
The primary target for the military campaign, called Operation Linda Nchi
(Protect the Nation), is Kismayo, the highly strategic port city in
southern Somalia and Al Shabaab stronghold. According to Kenyan military
spokesman, Major Emmanuel
Chirchir<
http://somalidiasporanews.com/index.php/2011/10/kenya-advances-towards-somali-city-of-kismayo/>,
"We are going to be there until the (Somali government) has effectively
reduced the capacity of al-Shabab to fire a single round ... We want to
ensure there is no al-Shabab."
The expressed war aim, however, has nothing to do with the alleged reason,
nor with self-defense, as is claimed by Kenyan officials and its Western
and regional backers.
The Kenyan government in Nairobi initially used the recent series of
kidnappings<
http://www.nytimes.com/2011/10/14/world/africa/kidnappers-again-target-europeans-in-kenya.html?_r=1>
inside
Kenya as the pretext for the campaign. From early September to mid-October,
unknown gunmen suspected of being Somalis had on four different occasions
kidnapped five civilians (two Western tourists and aid workers and a Kenyan
man working for a Western aid agency) and reportedly taken them to southern
Somalia.[2]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[2]>
Nairobi has failed to provide a shred of evidence on the identities of the
kidnappers. Al Shabaab has denied responsibility. Quite tellingly, Nairobi
has not bothered advancing the pretext of a rescue mission. The reason is
clear: if the captives are in fact held in southern Somalia, the invasion
jeopardizes their safety.
Recognizing this peril, the organization representing the two kidnapped aid
workers, Doctors Without Borders, immediately criticized Kenya's
irresponsible actions and dissociated
itself<
http://allafrica.com/stories/201110200683.html> from
"any military or other armed activities, declarations or presumptions of
responsibility related to this
case."[3]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[3]>
Instead of a rescue mission, Kenya used the kidnappings to justify the
invasion on grounds of "self-defense." In an October 17 letter to the UN
Security Council (UNSC), the Kenyan government cited the "latest direct
attacks on Kenyan territory and the accompanying loss of life and
kidnappings of Kenyans and foreign nationals by the Al-Shabaab terrorists"
as reason for "remedial and pre-emptive action" undertaken "to protect and
preserve the integrity of Kenya and the efficacy of the national economy
and to secure peace and
security."[4]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[4]>
Less than a week later, Nairobi collapsed its own pretext by admitting that
the identities of the kidnappers were completely irrelevant to the
government's decision to invade. Confirming what many analysts suspected,
on October 23, the government's chief spokesman, Alfred Mutua,
called<
http://www.nytimes.com/2011/10/27/world/africa/kenya-planned-somalia-incursion-far-in-advance.html>
the
kidnappings a "good launchpad" for an operation that had "been in the
pipeline for a while."
Kenyan officials continue to characterize the pre-meditated invasion as an
act of "self-defense." In an attempt to give legal cover for the
government-approved doublespeak, Nairobi invoked Article 51 of the UN
Charter, part of which
states<
http://www.un.org/en/documents/charter/chapter7.shtml>:
"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."
Government spokespersons have
interpreted<
http://allafrica.com/stories/201110170008.html> the
Article to mean that states have the right "to hit anybody who hits you or
is planning to hit you.... [and] pursue those who have hit and ran away,"
Kenya's Internal Security Permanent Secretary Francis Kimemia put it.
With responsibility for the kidnappings consigned to irrelevancy, we can
only interpret the Kimemia standard to mean that Kenya can "hit" anyone of
their choosing, pending (we can presume) approval from appropriate
authorities.
This viewpoint contrasts strikingly with the opinion of the UN body
responsible for investigating violations to Somalia's longstanding general
and complete arms
embargo.[5]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[5]>
*Self-Defense?*
To be clear, Kenya's right to self-defense is not in question. Since Kenya
has not received UNSC approval for its invasion, the question to be asked
is: does Kenya have a right to use force on Somali soil?
Without UNSC approval, international law allows the right to force on
foreign soil only when all peaceful means to a conflict have been
exhausted, leaving no alternative but the resort to force to defend against
an attack under way or one that is "demonstrably imminent." Furthermore,
the right to self-defense against an armed attack in only temporary and
subsists "until the Security Council has taken measures necessary to
maintain international peace and security," as stated in Article 51, with
the intention being that the UNSC will act quickly to end the
attack.[6]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[6]>
Cases where there appear to be legitimate cause for self-defense raise
crucial questions regarding necessity and
measure.[7]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[7]>
For
the Kenyan intervention, such questions don't even enter in. For one, the
government already collapsed its own pretext. Secondly - and more
importantly - aggressors forfeit their right to self-defense.
Since early 2009, the Kenyan government has implemented a military program
called the "Jubaland Initiative" in blatant violation of the Somali arms
embargo. The program was responsible for assembling, training and arming
Somali proxy forces to carry out operations along the Somali side of the
Kenyan border.[8]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[8]>
The objective was to develop proxy militias capable of pushing Al-Shabaab
out of Somalia's Juba Valley, a region that contains Kismayo and overlaps
with the hydrocarbon-rich Kenyan-Somalia Lamu basin (which Kenya and its
Western patrons are eager to exploit). By transforming the region into a
"buffer zone," Nairobi's hope was for its proxies to prevent Somalia's
crisis from spilling into Kenya, both in terms of insecurity and refugees.
[9]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[9]>
Ethiopia essentially mirrored the initiative along its Somali border, and
achieved similar results to its counterparts. Rather than helping to
establish "emergent local authorities" capable of delivering "enduring
peace and security," the UN Monitoring Group in its July 2011 report warned
that Kenya and Ethiopia
"resort to Somali proxy forces ... represents a potential return to the
'warlordism' of the 1990s and early
2000s."[10]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[10]>
Kenyan and Ethiopian efforts to re-establish "warlordism" in the region
violated the embargo on two fronts: first, arming and training Somali
proxies without UNSC approval; and, second, carrying out military
operations alongside proxies on Somali soil.
As stipulated in UNSC resolutions 1744 and 1772 (2007), arming and training
Somali "security sector institutions" - which the Monitoring Group takes to
include Somali factions formally aligned with the TFG - are eligible for
exemption to the embargo on the condition that the UNSC Committee is
notified "in advance and on a case-by-case basis."
Kenyan and Ethiopia proxy forces are nominally under the command of the TFG
and therefore eligible for exemption. But because neither government has
notified the sanctions Committee about their programs, the entire Jubaland
Initiative and Ethiopia's like programs constitute "technical violations"
of the arms embargo.[11]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[11]>
Both governments have also committed "substantive violations," defined by
the Monitoring Group as "contraventions of the embargo that would under no
circumstances be eligible for
exemptions."[12]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[12]>
The
Monitoring Group has made clear that foreign military incursions on Somali
soil fall into this category.
In response to joint operations carried out against Al Shabaab by Ethiopian
forces and Addis Ababa's proxy militia, Ahlu Sunna Wal Jama (ASWJ), the
March 2010 report states: "The Monitoring Group does not believe that
operations of foreign military forces on Somali soil correspond with the
definition of support to the Somali security sector under Security Council
resolution 1772 (2007), and therefore constitute a substantive violation of
the arms embargo."[13]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[13]>
Since then, Ethiopia has continued to carry out military operations inside
Somali territory, with Kenya increasingly following suit.
In February 2011, the TFG and AMISOM spearheaded a military offensive
against Al Shabaab that, according to credible sources, was supported
militarily by Ethiopian and Kenyan forces and their proxies. For example,
Human Rights Watch (HRW) released a report on August 15 documenting how
"[u]nits of the Ethiopian and Kenyan armed forces have been deployed in
support of operations in southern Somalia since the beginning of 2011."
The report cites the shelling of the town, Bula Hawo, by Ethiopian forces
in March. Kenyan troops allegedly were present in the
town.[14]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[14]>
Throughout March and into early April, Kenyan tanks and artillery
reportedly shelled the town of Dhobley from the Kenyan side of the border.
According to Human Rights Watch, during the final day of shelling on April
4, a hospital was severely damaged in an act the organization suspects may
have been deliberate.[15]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[15]>
The Monitoring Group corroborates the presence of Kenyan military
operations in Dhobley during March: "According [to Kenyan] governmental
sources, artillery for these incursions was provided by the Kenyan
military, which included military helicopters to provide air support," the
July 2011 report
states.[16]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[16]>
Kenyan and Ethiopian military operations on Somali soil in support of the
TFG/AMISOM offensive fall squarely in the category of "substantive
violations." In keeping with the Monitoring Group definition, the TFG does
not possess the legal authority to override the embargo and grant
permission for foreign incursions. The Monitoring Group made this point
clear in its opinion on the US-backed Ethiopian invasion and occupation of
Somalia (December 2006 - January 2009).
Like Nairobi, Addis Ababa argued that its invasion was consistent with the
UN Charter because it was at the request of the TFG and was undertaken in
"self-defense."[17]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[17]>
The
Monitoring Group responded to Addis Ababa's argument by stating
unambiguously: "the presence of Ethiopian forces on Somali territory
constituted a violation of the arms embargo, notwithstanding the bilateral
agreements between the Government of Ethiopia and the Transitional Federal
Government under which that deployment had taken
place."[18]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[18]>
This point bears significantly on the Kenyan invasion because it nullifies
the October 17 joint Kenyan-Somali communiqué sent to the UNSC, which, at
best, only implies TFG approval for the invasion. (The communiqué is
careful not to specifically authorize Kenyan troops on Somali soil. The
closest it comes is to state that both countries will "[c]ooperate in
undertaking security and military operations, and to undertake coordinated
pre-emptive action and the pursuit of any armed elements
...")[19]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[19]>
In short, Kenya is without a legal justification for the right to force on
Somali soil. This fact entails that the invasion not only constitutes a
"substantive violation" of the arms embargo, but also foreign aggression -
the "supreme international crime" in the determination of the Nuremberg
Tribunals.
*Client-State Impunity*
It is now known from US embassy cables released on WikiLeaks that as of
February 2010 Kenya's "counter-terrorism" chief and top Western patron did
not support the Jubaland Initiative on tactical grounds, fearing that the
policy would "backfire<
http://wikileaks.org/cable/2010/02/10ADDISABABA166.html>
."[21]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[21]>That
month, Assistant Secretary of Defense Alexander Vershbow clarified the US
position by telling
<
http://wikileaks.org/cable/2010/02/10NAIROBI159.html> Kenyan
officials that while "you have our understanding, you do not yet have our
support."[22]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[22]>
It is enough for Washington to offer its "understanding" to confer a
much-sought-after privilege in the domain of international affairs: what
Edward Herman and David Peterson have called "client-state
impunity."[20]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[20]>
As
a beneficiary of this privilege, Kenya is like Ethiopia in that it's free
to pursue a criminal policy without fear of punitive action, like sanctions.
Impunity by right of geopolitical alignment is the leading cause of what
the Monitoring Group has identified as an "international norm of
non-compliance"[23]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[23]>
toward
the longstanding Somali arms embargo and, more generally, international
law. A "norm" that runs right to the present and is being actively defended.
Echoing Kimemia's interpretation of the UN Charter in more typical
diplomatic verbiage, US Ambassador to Kenya Scott Gration defended the
Kenyan intervention, saying <
http://allafrica.com/stories/201110240053.html>,
"We respect the right of a nation to take any decision to defend its
borders as per article 51 of the UN charter on self defence and pursuit of
hostile elements across international borders."
More than just "understanding," there are unconfirmed
reports<
http://www.nytimes.com/2011/10/24/world/africa/kenya-says-Western-nations-have-joined-somalia-fight.html>alleging
that the US is offering its "support" in the form of airstrikes. France is
also suspected of taking part in the invasion, with unconfirmed reports of
the French Navy bombing Al Shabaab positions. Both governments deny direct
military involvement.
For the Obama administration, authorizing airstrikes would only be a
continuation of, rather than departure from, a policy that increasing
relies on committing "substantive violations" of the embargo and acts of
aggression. For example, numerous sources claim that the administration
authorized airstrikes against Al Shabaab targets in late June and early
July, just weeks before the exploding humanitarian crisis reached famine
levels throughout southern
Somalia.[24]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[24]>
Kenya, now with official backing from the East African regional body, the
Intergovernmental Authority on Development (IGAD) and the
AU,[25]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[25]>
has
been actively seeking greater involvement from the US and other "big
countries<
http://www.nytimes.com/2011/11/03/world/africa/djiboutis-soldiers-to-join-peacekeepers-in-somalia.html>."
Nairobi has been lobbying its Western patrons to push through a UNSC
resolution authorizing an international naval blockade on Kismayo and a
NATO intervention.
So far, the UNSC has refrained from passing a resolution pertaining to the
Kenyan intervention. The result has been to give Kenya the green light to
continue waging its criminal invasion, thus making clear the UNSC's failure
to take direct measures to "restore international peace and security," as
stipulated in Article 51.
When the UNSC finally weighs in, it is unlikely that it will authorize all
of Kenya's demands, especially a NATO intervention, as the Obama
administration has made clear that it will not become bogged down in a
full-fledged intervention in Somalia. The administration instead will
likely (if it is not already) support the invasion through surveillance and
drone attacks on Al Shabaab suspects, a capacity that has grown
significantly in recent years with the construction of its "constellation
of drone bases" in the
region.[26]<
http://www.truth-out.org/kenyas-criminal-assault-famine-stricken-somalia/1323446017#[26]>
While the direction that the invasion will take remains uncertain, what's
clear is that the dire consequences of these policies for Somalis are
regarded much like the violations of international law committed by those
who bestow and possess "client-state impunity": a mere sideshow to
strategic pursuits.
Footnotes:
[1] "Somalia - Famine & Drought," Situation Report No. 21, 8 November 2011.
[2] One tourist was
killed<
http://www.nytimes.com/2011/10/14/world/africa/kidnappers-again-target-europeans-in-kenya.html?_r=1>
during
a raid, another has already
died<
http://www.telegraph.co.uk/news/worldnews/africaandindianocean/kenya/8835894/French-hostage-taken-from-Kenya-to-Somalia-dies.html>in
captivity.
[3] The organization is currently seeking "to find a nonviolent resolution
of the case - a way of negotiating that doesn't involve any kind of use of
violence," Director of Operations Raquel Adora recently
said<
http://www.voanews.com/english/news/africa/MSF-Kenya-Incursion-in-Somalia-Threatens-Rescue-of-Kidnapped-Workers-132174823.html>
.
[4] Republic of Kenya, Letter dated 17 October 2011 from the permanent
representative of Kenya to the United Nations addressed to the president of
the UNSC, (S/2011/646), 18 October 2011.
[5] See UNSC, UNSC resolution 733, 23 January 1992, S/RES/733 (1992).
[6] See Michael Mandel, "How America Gets Away With Murder" (Ann Arbor:
Pluto Press, 2004), 19, 36-40.
[7] US Secretary of State Daniel Webster was one of the early legal
scholars who articulated the self-defense doctrine that is enshrined in
international and domestic law. He stated in his opinion in the Caroline
Case of 1841 that the "necessity of self-defence" is contingent on
circumstances that are "instant, over-whelming, leaving no choice of means,
and no moment for deliberation," and "the act" must be "justified by the
necessity of self-defence, must be limited by that necessity, and kept
clearly within it." (Cited by Mandel, "How America Gets Away With Murder,"
37.)
[8] UNSC, Report of the Monitoring Group on Somalia pursuant to UNSC
resolution 1853 (2008), S/2010/91, 10 March 2010, 55.
[9] Here "buffer zone" is really a euphemism for a regional administration
that would take orders from Nairobi. In fact, Kenyan client, Mohamed Gandi,
tried unsuccessfully to establish a new state in southern Somalia called
"Azania." For more on this, see Michael Weinstein, "Kenya's Political
Failure in Southern Region," Garowe Online, November 11, 2011.
[10] UNSC, Report of the Monitoring Group on Somalia and Eritrea pursuant
to UNSC resolution 1916 (2010), S/2011/433, 18 July 2011, 11.
[11] UNSC, Report of the Monitoring Group on Somalia and Eritrea pursuant
to UNSC resolution 1916 (2010), S/2011/433, 18 July 2011, 250 and 251.
[12] UNSC, Report of the Monitoring Group on Somalia and Eritrea pursuant
to UNSC resolution 1916 (2010), S/2010/91, 18 July 2011, 47.
[13] UNSC, Report of the Monitoring Group on Somalia and Eritrea pursuant
to UNSC resolution 1916 (2010), S/2010/91, 10 March 2010, 53.
[14] "'You Don't Know Who to Blame': War Crimes in Somalia," 20 and 21.
[15] "'You Don't Know Who to Blame': War Crimes in Somalia," 22.
[16] S/2011/433, 250.
[17] Federal Democratic Republic of Ethiopia, "Response of the Government
of Ethiopia to the Monitoring Group," Annex VII, Report of the Monitoring
Group on Somalia pursuant to UNSC resolution 1724 (2006), S/2007/436, 44.
[18] UNSC, Report of the Monitoring Group on Somalia pursuant to UNSC
resolution 1811 (2008), S/2008/769, 11.
[19] After the signing of the communiqué, TFG president, Sheikh Sharif
Ahmed, and other transitional government officials publicly opposed the
Kenyan intervention. The TFG then issued a "clarification statement" on
October 26 that denied any agreement that had been made allowing Kenyan
forces to enter Somalia. For a more detailed account, see Weinstein,
"Kenya's Political Failure."
[20] See "Politics of Genocide" (New York: Monthly Review Press, 2010), 80.
[21] See released US Embassy Cable: Embassy Addis Ababa, Assistant
Secretary Carson's January 30, 2010, Meeting With Kenyan Foreign Minister
Wetangula, February 2, 2010.
[22] See released US Embassy Cable: Embassy Nairobi, ASD Vershbow Visit
Highlights Regional Security Issues, February 11, 2010.
[23] S/2008/769, 34.
[24] See "US Expands Its Drone War Into Somalia," New York Times, July 1,
2011; and Jeremy Scahill, "The CIA's Secret Sites in Somalia," The Nation,
July 12, 2011. For a more detailed account of the military offensive that
preceded the explosion of the humanitarian crisis in Somalia, see my "War
and famine, the only option?" Parts I and II,
Znet<
http://zcommunications.org/war-and-famine-the-only-option-part-i-by-stephen-roblin>;
and here<
http://zcommunications.org/war-and-famine-the-only-option-part-ii-by-stephen-roblin>
.
[25] On November 25, IGAD officially endorsed the invasion at its summit in
Addis Ababa, Ethiopia, and released a communiqué calling "upon the
Ethiopian Government to support the Kenyan- TFG and AMISOM operation" and
reiterating "its previous calls on the UNSC to adopt a resolution that
enforces measures to control access to the Ports of Kismayu, Haradhere,
Marka and Barawe and an air-exclusion zone over air space controlled by Al
Shabaab such as Baidoa, Balidogle, N5O and Cisaley to cut off arms supplies
to Al Shabaab ." On December 2, the AU released its own
communiqué<
http://au.int/en/dp/ps/content/peace-and-security-council-african-union-au-its-302nd-meeting-adopted-following-decision-sec>
where
it endorsed the IGAD communiqué. It also requested that Kenya "consider the
integration of its forces into AMISOM, as part of the next phase of
deployment of AMISOM and welcomes the decision of the Federal Republic of
Ethiopia to support the AMISOM TFG Kenya operation."
[26] "Joint strike is latest example of CIA-military convergence,"
Washington Post, October 1, 2011.
STEPHEN ROBLIN
Stephen Roblin is an activist and independent researcher living in
Baltimore, Maryland.
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Received on Mon Dec 19 2011 - 11:01:06 EST