EJIL: Talk!

In the First Part of this comment we have seen that reference to article 51 of the UN Chapter in order to justify Operation Serval, is problematic. We will now discuss the two other legal arguments used by France.

 Consent of the Malian Authorities

The argument according to which the authorities of Mali had the sovereign right to request external military intervention against the Islamist rebels and that France had the right to intervene on the basis of this invitation seems a priori powerful. Indeed, in her comments to the press just before the start of Operation Serval, Susan Rice, the U.S. Permanent Representative to the United Nations, argued that any State “can support and encourage the Malian government’s sovereign request for assistance from friends and partners in the region and beyond’ and that “there was clear-cut consensus about the gravity of the situation and the right of the Malian authorities to seek what assistance they can receive”.

This should nonetheless not lead to the conclusion that third States have an unlimited right to military intervention on the basis of the request or the consent of the legitimate authorities of the State where the intervention takes place. External intervention by invitation should be deemed in principle unlawful when the objective of this intervention is to settle an exclusively internal political strife in favor of the established government which launched the invitation (see T. Christakis & K. Bannelier, “Volenti non fit injuria? Les effets du consentement à l’intervention militaire”, Annuaire Français de Droit International, 2004, at 102-138). Such a military intervention will not be in principle in violation of art. 2(4) of the UN Charter, which is inoperative in such a situation because there is no use of force of one State against another (see art. 2 §4: “in their international relations”) but two States cooperating together. Such a military intervention could however constitute a violation of the principles of non-intervention and non-interference in domestic affairs and the principle of self-determination of peoples. The resolutions adopted within the UN General Assembly and State practice in this field confirm this conclusion which was also shared by authors such as M. Bennouna, L. Doswald-Beck or by the Institute of International Law in its 1975 Wiesbaden Resolution on The Principle of Non-Intervention in Civil Wars (esp. art. 2) or the 2011 Rhodes Resolution on Military Assistance on Request. ” Read the rest of this entry…