Non-international armed conflict in Kenya
The Kenyan government is engaged in a non-international armed conflict (NIAC) in its territory against al-Shabaab.
- A non-international armed conflict is taking place between Kenya and al-Shabab in Kenya.
- Kenyan troops participate to the African Transition Mission in Somalia (ATMIS), former African Union Mission in Somalia (AMISOM), which is a peacekeeping operation supporting the Somali government. Its military component is a party to the armed conflict.
- In addition to contributing troops to AMISOM, Kenyan armed forces also operate independently in Somalia to fight against al-Shabab. Therefore, Kenya is also party to the NIAC between al-Shabab and the Somali forces.
Two criteria need to be assessed in order to answer the question whether a situation of armed violence amounts to a non-international armed conflict.
- First, the level of armed violence must reach a certain degree of intensity that goes beyond internal disturbances and tensions.
- Second, in every non-international armed conflict, at least one side to the conflict must be a non-state armed group which must exhibit a certain level of organization in order to qualify as a party to the non-international armed conflict. Government forces are presumed to satisfy the criteria of organization. For further information, see ‘non-international armed conflict’ in our classification section.
Intensity of violence
Various indicative factors are used to assess whether a given situation has met the required intensity threshold, such as the number, duration, and intensity of individual confrontations; the types of weapons and military equipment used; the number of persons and types of forces participating in the fighting; the number of casualties; the extent of material destruction; the number of civilians fleeing; and the involvement of the United Nations Security Council. For further information, see ‘non-international armed conflict – intensity of violence’ in our classification section.
Somalia has been party to a NIAC against al-Shabab for years. In October 2011, following a number of cross-border kidnappings conducted by al-Shabab fighters based in Kenya, the latter launched Operation Linda Nchi (protect the country): thousands of troops of the Kenyan Defence Forces (KDF) were deployed in Somalia’s Juba Valley in order to fight against al-Shabaab. Nevertheless, soon KDF run into major obstacles, as al-Shabab reverted to guerrilla warfare, which Kenyan troops were poorly equipped to address. W. Ross, ‘Kenya’s Incursion Into Somalia Raises the Stakes’, BBC, 17 October 2011. For a discussion of the legal grounds used to justify the intervention, see V. Hadzi-Vidanovic, ‘Kenya Invades Somalia Invoking the Right of Self-Defence’, EJIL Talk!, 18 October 2011. In light of these challenges, in February 2012, the Kenyan troops in Somalia became part of the AMISOM mission, although they also continued to operate outside AMISOM. See the information provided by AMISOM, Kenya – KDF; Report of the Secretary-General on Children and Armed Conflict in Somalia, UN doc S/2016/1098, 22 December 2016, para. 10.
Following these events, the non-international armed conflict between al-Shabaab and Somalia spilled into Kenya. In addition to committing terrorist attacks in Kenya, notably the 2013 Westgate mall attack, the 2015 Garissa University attack, and the 2016 Dusit complex attack, al-Shabaab has been conducting raids into Kenyan territory, targeting both civilians and the Kenyan security forces, and has engaged in internse armed violence against Kenya. As a reaction, in September 2015 Kenya initiated Operation Linda Boni to expel al-Shabaab. Report of the Monitoring Group on Somalia and Eritrea pursuant to Security Council resolution 2244 (2015): Somalia, UN doc S/2016/919, 28 September 2016, para. 43ff; S. Cherono, ‘Kenya: Head of Operation Linda Boni Moved in Wake of Al-Shabaab Attacks’, All Africa, 19 July 2017; C. Praxides, ‘Operation Linda Boni Is a Success, Al-Shabaab IED Experts Killed, Says Official’, Star, 11 July 2017; B. Sanga, ‘Mixed Fortunes of Operation Linda Boni as Locals Cry Foul’, Standard Digital, 17 June 2017; ‘Kenya attack death toll rises to 21 as suspects hunted down’, Al-Jazeera, 17 January 2019.
In 2020, the relationship between Somalia and Kenya became particularly tense, notably due to economic and maritime boundary issues. In December 2020, Somalia accused Kenya of interfering in its internal affairs and violating its sovereignty by interfering in regional elections. Therefore, it decided to recall its ambassadors from Kenya and expelled the Kenyan diplomatic representations from the country. Tension further escalated as Kenyan President Uhuru Kenyatta hosted in Nairobi Musa Bihi Abdi, the leader of Somaliland, in mid-December. Following the meeting, he announced that Kenya would open a consulate office in Somaliland, and that Somaliland would in turn open a liaison office in Nairobi. On 1 February 2021, Somali soldiers killed a Kenyan security personnel and injured two others. On 6 May 2021, following Qatar-mediate talks, Somalia announced to want to restore diplomatic relations with Kenya. On 12 June, following new tensions between the two countries, Somalia reiterated its offer, which was accepted by Kenya two days later. On 8 August 2021, Kenya and Somalia announced their intention to strengthen trade, security and diplomatic ties. ‘Somalia cuts diplomatic ties with Kenya citing interference’, Al-Jazeera, 15 December 2020; International Crisis Group, Crisis Watch: Kenya.
Fighting between al-Shabab and Kenyan forces has continued in 2022 and 2023, with clashes taking place regularly in the north-eastern part of the country. International Crisis Group, Crisis Watch: Kenya. In light of the intensity of the armed confrontations, it is possible to conclude that Kenya is party to a separate NIAC against al-Shabab. Furthermore, as Kenyan troops are present in Somalia to help the government fighting al-Shabab, Kenya is also party to the NIAC between Somalia and al-Shabab in Somalia.
Organization of the parties
A series of indicative factors are used to assess whether armed groups exhibit the required degree of organization, such as the existence of a command structure and disciplinary rules and mechanisms, the ability to procure, transport, and distribute arms, the ability to plan, coordinate and carry out military operations, the ability to negotiate and conclude agreements, e.g. cease fire or peace agreements. If the criterion of a minimum organization of the armed group is not fulfilled, there is no armed conflict. For further information, see ‘non-international armed conflict - organization’ in our classification section.
Al-Shabab
The Islamic Courts Union (ICU), a union of various courts that emerged in the 1990s in Somalia to locally restore law and order due to the failure of state institutions, and which formed the most significant militant organization in Somalia at the time, held Mogadishu for a period of six months in 2006. ‘Somalia: Who supports who?’, BBC, 28 December 2006. When the ICU disintegrated in 2006/2007, its militant wing turned into the independent group of al-Shabaab, which continued to control vast parts of central and southern Somalia in 2009/2010. A. Bellal (ed), The War Report. Armed Conflicts in 2014, Oxford University Press, 2015, p 239. Despite having lost control over major towns and cities, al-Shabaab continues to hold many rural areas. Amnesty International, Report 2016/2017, The State of the World’s Human Rights, p 326; Vanda Felbab-Brown, ‘Developments in Somalia’, Brookings, 14 November 2018. Furthermore, it stepped up its presence in the northern, semiautonomous region of Puntland. Council on Foreign Relations, ‘Al-Shabab’, 31 January 2019.
The organizational capacity of al-Shabaab is further illustrated by its capacity to carry out attacks outside of its strongholds, including the capital of Somalia Mogadishu, and even outside of Somalia, notably in Kenya or Djibouti. Moreover, in addition to car bombs and suicide attacks, al-Shabaab is capable of carrying out more complex attacks against AMISOM bases, army bases, and government locations, occasionally against high-level targets. Report of the Monitoring Group on Somalia and Eritrea pursuant to Security Council resolution 2244 (2015): Somalia, UN doc S/2016/919, 28 September 2016, para. 8 and 14ff; International Crisis Group, ‘Somalia’, Crisis Watch, January and February 2019.
Al-Shabaab has a leadership, currently organized under Ahmad Umar, also known as Abu Ubaidah. ‘Council on Foreign Relations, ‘Al-Shabab’, updated 31 January 2019; Joe Sommerlad, ‘Al-Shabaab: Who are the East African jihadi group and what are their goals?’, The Independent, 15 January 2019. A sort of enforcement mechanism for enforcing internal rules seems to exist, as ‘action would be taken’ against persons disobeying ‘the rules’. N. Boehland, ‘The People’s Perspective: Civilian Involvement in Armed Conflict’, Center for Civilians in Conflict, 2015, p 73. Al-Shabaab collects taxes in the areas it controls. Other sources of funding include racketeering, piracy, kidnapping. C. Harnisch, The Terror Threat From Somalia: The Internationalization of al Shabab, Critical Threads, 12 February 2010; Council on Foreign Relations, ‘Al-Shabab’, 31 January 2019.
All parties to the conflict are bound by Article 3 common to the 1949 Geneva Conventions that provides for the minimum standard to be respected and requires humane treatment without adverse distinction of all persons not or no longer taking active part in hostilities. It prohibits murder, mutilation, torture, cruel, inhuman and degrading treatment, hostage taking and unfair trials.
In addition, all parties are bound by customary international humanitarian law applicable to non-international armed conflict. Customary international law consists of unwritten rules that come from a general practice accepted as law. Based on an extensive study, the International Committee of the Red Cross maintains a database on customary international humanitarian law.
In addition to international humanitarian law, international human rights law continues to apply during times of armed conflict. Somalia is a party to the International Covenant on Civil and Political Rights as well as the International Covenant on Economic, Social and Cultural Rights. Under human rights law, the territorial state has an obligation to prevent and to investigate alleged violations, including by non-state actors. Non-state armed groups are increasingly considered to be bound by international human rights law if they exercise de facto control over some areas.
