The United Nations Charter (UNC)
I. INTRODUCTION
There is no greater threat than the use of force by States. The primary purpose of the founding members of the United Nations Charter (UNC) was to restrict the use of force as much as possible. The UNC aims to maintain international peace and security, and in doing so, limits and restricts the use of force by all States.
Article 2(4) of the UNC lays down the “all-embracing prohibition on ‘the threat or use of force against the territorial integrity or political independence of any state’” , and the UNC permits the use of force only in self-defence or when authorised by the Security Council. Article 2(4) and Article 51 of the UNC establish a collective security system, whereby States agree to renounce the use of force
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KENYA’S RIGHT TO USE FORCE AGAISNT AL-SHABAAB IN SOMALIA
(a) The prohibition on the use of force
Article 2(4) of the UNC states:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
Prima facie, Kenya, as a Member State, is bound by the prohibition under Article 2(4) and would not have a right to use force against al-Shabaab in Somalia. However, there are two exceptions to the prohibition on use of force, namely the right to use force in self-defence and Security Council authorisation of the use of force in terms of Chapter VII of the UNC. In the present case, Kenya may have a right to use force in self-defence against al-Shabaab in Somalia.
(b) Kenya’s use of force in self-defence
Article 51 of the UNC 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
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The facts state that Somalia has very little effective control of the actions of the al-Shabaab members and over the al-Shabaab bases. Applying the present case to the events that unfolded after the attacks on the World Trade Center and the Pentagon on 2001, it seems likely that Kenya will be able to use force in self-defence against al-Shabaab in Somalia, without having to prove that the actions of al-Shabaab are attributable to Somalia. It is clear that an armed attack has, indeed, occurred, and thus Kenya is entitled to respond with the use of self-defence in order to prevent further terrorist attacks. It must, however, be noted that this wider right to self-defence may only exist in cases where the right has been asserted by the Security
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