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Applicable Law

International Human Rights Law

International human rights law is applicable to the situation in Mt. Elgon, including the International Covenant on Civil and Political Rights (ICCPR),134 the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,135 and the African Charter on Human and Peoples’ Rights.136

The Convention against Torture defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person by, or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” In order to amount to torture, such pain must be inflicted for specific reasons, including extracting information or a confession, punishment, or intimidation.137

The Kenyan government has a legal obligation to carry out prompt and fair investigations into torture and prosecute and punish military and civilian officials responsible.138 All states party to the Convention against Torture are responsible for bringing torturers to justice.139 The UN Committee against Torture has stated clearly that perpetrators of torture should not be granted amnesty.140

A full investigation into torture should trace the orders that led to the torture, back to those who gave them, whether civilian or military commanders. 141 But the investigation should also identify those who are responsible under command responsibility, that is, those who knew or should have known about the abuses, and were in position of command yet failed to prevent the abuses, or punish those responsible.  The Committee against Torture has stated that it:

 

considers it essential that the responsibility of any superior officials, whether for direct instigation or encouragement of torture or ill-treatment or for consent or acquiescence therein, be fully investigated through competent, independent and impartial prosecutorial and judicial authorities.142

Kenya has incorporated many of the provisions of the most important human rights treaties in its constitution and other relevant national legislation.143 These provisions prohibit violations of the right to life, torture, and other inhuman and degrading treatment, arbitrary arrest and detention, and unfair trials. They also provide for the rights to the protection of the home and family, and specific protection of children in times of armed conflict.144

International Humanitarian Law

Although the situation in Mt. Elgon may have initially been a police operation, since the Kenyan army began actively participating in operations against the SLDF in Mt. Elgon in March 2008, fighting has risen to the level of an armed conflict under international humanitarian law (the laws of war).  The operation to contain the SLDF has altered not only due to the deployment of Kenyan armed forces, but because of the intensification of clashes and the use of heavy weaponry against areas under SLDF control.

Both the Kenyan security forces and the SLDF are obligated to observe article 3 common to the four Geneva Conventions of 1949 (common article 3), the Second Additional Protocol of 1977 to the Geneva Conventions (Protocol II), applicable to non-international armed conflicts, and relevant customary international law. Kenya is a party to the 1949 Geneva Conventions and Protocol II.145

International humanitarian law forbids the deliberate harming of civilians and other persons not (or no longer) taking part in the hostilities, including wounded or captured combatants. It also provides rules on the conduct of hostilities to minimize unnecessary suffering.

A fundamental principle of international humanitarian law is that parties to a conflict must distinguish between combatants and civilians, and may not deliberately target civilians or civilian objects. Protocol II states that “the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.”146 They are not to be the object of attack, and all acts or threats of violence with the primary purpose to spread terror among the civilian population are prohibited.147

Summary or extrajudicial executions and the mistreatment of detained persons are illegal under any circumstances according to both international humanitarian and human rights law. Common article 3 prohibits “at any time and in any place whatsoever” with respect to civilians and captured combatants:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

With respect to individual responsibility, serious violations of international humanitarian law, including the mistreatment of persons in custody and deliberate attacks on civilians and civilian property when committed with criminal intent, amount to war crimes. Criminal intent requires purposeful or reckless action. Individuals may also be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, aiding, or abetting a war crime. Responsibility may also fall on persons ordering, planning, or instigating the commission of a war crime.148 Commanders and civilian leaders may also be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.149

Under international law, Kenya has an obligation to investigate alleged war crimes by their nationals, including members of their armed forces, and prosecute those responsible for war crimes.150 Should the Kenyan government fail to fairly and credibly investigate and prosecute those responsible for war crimes, the crimes may fall within the jurisdiction of the International Criminal Court. Kenya ratified the Rome Statute of the ICC on March 15, 2005.




134 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1996), 999 U.N.T.S. 171, entered into force March 23, 1976, acceded to by Kenya on March 23, 1976.

135 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, acceded to by Kenya on March 23, 1997.

136 African (Banjul) Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force October 21, 1986, ratified by Kenya on January 23, 1992.

137 Torture Convention, Article 1(1).

138 Torture Convention, Article 12.

139 Torture Convention, Articles 6-9.

140 UN Committee Against Torture, General Comment no. 2, CAT/C/GC/2, 24 January 2008, Paragraph 5.

141 CAT General Comment no 2, paragraph 9.

142 CAT General Comment no 2, paragraph 26.

143 Chapter V of the Kenya Constitution enshrines in law all the fundamental rights and freedoms of the Universal Declaration of Human Rights.

144Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990, ratified by Kenya on September 3, 1990; Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981, acceded to by Kenya on September 2, 1990.

145 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 75 U.N.T.S. 31, entered into force October 21, 1950; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (Second Geneva Convention), 75 U.N.T.S. 85, entered into force October 21, 1950; Geneva Convention relative to the Treatment of Prisoners of War (Third Geneva Convention), 75 U.N.T.S. 135, entered into force October 21, 1950; Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 75 U.N.T.S. 287, entered into force October 21, 1950. Kenya became a party to the Geneva Conventions in 1966. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 U.N.T.S 609, entered into force December 7, 1978. Kenya acceded to Protocol II on February 23, 1999.

146 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 U.N.T.S 609, entered into force December 7, 1978, article 13(1).

147 Ibid, article 13(2).

148 See ICRC, Customary International Humanitarian Law, p. 554.

149 See ICRC, Customary International Humanitarian Law, rule 153.

150 See ICRC, Customary International Humanitarian Law, rule 158 citing ICC Statute, preamble.