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Kenya in a Global Non-International Armed Conflict Linked to September 11?

A brief recently filed by the President of Kenya before the International Criminal Court makes a provocative claim: Kenya is involved “in a war with radical Islamist groups” linked to September 11th. President Kenyatta’s brief adds, “this is a global conflict which commenced in 1998, but as a result of the scale of the attacks in the US on 9[sic] September 2001, developed into international warfare.”

President Kenyatta makes this claim as part of his petition to vacate, or delay, his November 2013 hearing before the trial chamber of the ICC. His argument is that as President of Kenya his attention needs to focus on affairs of the state relating to the “war,” especially following last month’s attack on the Westgate Shopping Mall. [For more discussion of related issues on Just Security, see Jennifer Daskal and Steve Vladeck's initial coverage of Westgate Mall raising questions about the relationship between the attack and the US conflict with al-Qaeda, and see Marty Lederman's post and my post on the relationship between al-Qaeda and members of al-Shabaab, the terrorist organization considered most likely responsible for the Westgate Mall attack.]

Here are relevant excerpts from President Kenyatta’s brief:

26. The terrorist attack at the Westgate shopping mall in Nairobi on 21 September 2013 has been justifiably recognised as a national and international crisis. The incident and situation caused significant loss of life. The deceased are Kenyan nationals and nationals of other States. Since the attack, Kenya’s duty to enforce peace in the region has been enhanced due to its responsibility to its citizens and the international community. Many commentators have correctly viewed this situation as one in which Kenya is involved in a war with radical Islamist groups who view the State as an enemy as a result of its international peace enforcement measures in Somalia.

29. Aside from the normal duties of office as Head of State, the situation as briefly set out above demonstrates the nature of the current terrorism crisis and the national and international dimensions involved. The context is very clear: this is a global conflict which commenced in 1998, but as a result of the scale of the attacks in the US on 9[sic] September 2001, developed into international warfare. It has now spread from being an Al‑Qaeda based conflict to include other militant Islamist groups who are opposed to good order in the world and intent upon committing serious organised violence. Mr Kenyatta has a clear and obvious duty on behalf of the Government of Kenya to exercise leadership in dealing with this issue. There is a continuous, unrelenting and entirely necessary responsibility to ensure the security of his people and the security of the international community. As Head of State, Mr Kenyatta has been required and will continue to be required, to provide leadership and to use his decision—making powers to ensure fulfilment of his role under Article 132 of the Constitution of Kenya.

30. Mr Kenyatta is currently in a situation whereby he is briefed on a continuous and daily basis by national security agencies and international security agencies in respect of relevant matters within the State and outside its borders relating to the global terrorist threat that is faced. He must make important decisions on behalf of his nation in the interests of the security of his people. Kenya is the lead nation undertaking the security of the region under the African Union Mission in Somalia. The international nature of this mission, which has ramifications beyond the continent of Africa, requires him to be available for consultation and to also consult, in relation to this ongoing crisis. This necessitates, on behalf of the people of Kenya and the international community, that Mr Kenyatta is free and accessible for important briefings and meetings at this time as well as ensuring the communication by him of directives and orders to others.

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About the Author

is co-editor-in-chief of Just Security. Ryan is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. Follow him on Twitter (@rgoodlaw).