On October 15, Kenya's top security chiefs declared war 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” 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 joined the invasion where they are primarily targeting Al Shabaab strongholds in central Somalia.
Southern Somalia is currently the “epicenter” of a famine that the UN believes could claim up to 250,000 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.” 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.”
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.
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, “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 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.
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 from “any military or other armed activities, declarations or presumptions of responsibility related to this case.”
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.”
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 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: “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 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.
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.
Cases where there appear to be legitimate cause for self-defense raise crucial questions regarding necessity and measure. 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.
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.
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.”
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.
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.” 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.”
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.
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.
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.
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.” 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.”
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 …”)
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.
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.” That month, Assistant Secretary of Defense Alexander Vershbow clarified the US position by telling Kenyan officials that while “you have our understanding, you do not yet have our support.”
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.” 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” 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, “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 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.
Kenya, now with official backing from the East African regional body, the Intergovernmental Authority on Development (IGAD) and the AU, has been actively seeking greater involvement from the US and other “big countries.” 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.
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.
 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.
 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.)
 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.
 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.
 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.”
 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; and here.
 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 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.”