The Nairobi Law Monthly just published my article on Kenya’s use of force in its crackdown on Al-Shabaab and efforts to secure the borders. I argue that the use of force in self-defense against Al-Shabaab, a non-state actor, does not have proper legal grounding under Article 51 of the Charter of the United Nations and indeed under customary international law. Nevertheless, if Kenya now has a proper legal basis in proceeding against the group, its use of force is still governed by international law. Such use of force must be necessary and proportionate.
Author
Professor James Gathii
Albany Law SchoolICC Decisions
Prosecutor v. William Samoeiruto, Henry Kiprono Kosgey and Joshua Arap Sang and Prosecutor v. Frances Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali
Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute30/5/2011Denying the Government's admissibility challenge based on lack of concrete evidence of national investigations into the persons accused of the crimes before the ICC.
Prosecutor v. Frances Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali
Decision on the "Prosecution's application requesting disclosure after a final resolution of the Government of Kenya's admissibility challenge" and Establishing a Calendar for Disclosure Between the Parties 20/4/2011Denying Prosecutor's application to delay disclosure of evidence until final decision is rendered in Article 19 application.
Prosecutor v. Frances Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali
Prosecution’s Application for Leave to Appeal 14/3/2011Seeking leave to appeal the court's decision to reject charges that the police were responsible for crimes in Naivasha, Nakuru, Kibera and Kisumu.
Prosecutor v. William Samoeiruto, Henry Kiprono Kosgey and Joshua Arap Sang
Dissenting Opinion by Judge Hans-Peter Kaul to Pre-Trial Chamber II's "Decision on the Prosecutor's Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang"15/3/2011
Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang
Decision on the Prosecutor's Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang 8/3/2011Issuing summonses for all three based on varying levels of involvement in the alleged crimes.
Prosecutor v. Francis Kirimimuthaura, Uhuru Muigaikenyatta and Mohammed Hussein Ali
Decision on the Prosecutor's Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali 8/3/2011Chamber allowed summonses to issue against all three for all five counts for crimes against humanity as alleged by the Prosecutor.
Ruto v. Office of the Prosecutor:
Decision on a Request For Leave to Appeal 11/2/2011Rejecting William Ruto's request for leave to appeal the January 18th, 2011 decision denying him his request to submit written and oral observations.
Ali v. Office of the Prosecutor:
Decision on the "Application for Leave to Participate in the Proceedings before the Pre-Trial Chamber relating to the Prosecutor's Application under Article 58(7)" 11/2/1011Rejecting Mohammed Hussein Ali's application to participate in the pre-trial proceedings with the understanding that he would be permitted to make oral and written observations to the prosecutor. The court determined that such communication was not within the rules.
Nine Applicants v. Office of the Prosecutor:
Second Decision on Application by Nine Persons to be Questioned by the Office of the ProsecutorDetermining that the five requests made by the nine applicants were without merit where the applicants sought various protections from prosecution in return for testimony, or in the alternative, a suspension of the prosecution process.
Ruto v. Office of the Prosecutor
Decision on Application for Leave to Submit Amicus Curiae Observations 18/1/2011Denying applicant's motion for leave to file amicus observations because the applicant is not a subject of the investigation.
Decision on Victims' Participation in Proceedings Related to the Situation in the Republic of Kenya 3/11/2010
A framework decision on victims' participation in proceedings related to the situation in the Republic of Kenya, irrespective and outside the context of any case which may arise from that situation.
Application to Authorize Investigation
Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya 31/3/2010Denying application to investigate based on lack of evidence establishing "State policy" to create violence.
Decision Requesting Clarification and Additional Information 18/2/2010
Decision on Application to Appear as Amicus Curiae and Related Requests 4/2/2010Blogroll
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