Part 1: The Argument of Collective Self-Defense
Dr. Theodore Christakis is Professor of International Law at the University Grenoble-Alpes (France). He is Director of the Centre for International Security and European Studies (CESICE) and chairman of the ESIL Interest Group on Peace and Security.
Dr. Karine Bannelier is Assistant Professor of International Law at the University Grenoble-Alpes (France). She is Director of the Master’s Degree in International Security and Defense.
One week after France launched its military intervention (“Operation Serval”) in Mali, there seems to be a general consensus concerning the legality of this intervention. Indeed, as the French Minister of Foreign Affairs Laurent Fabius rightly emphasized, France has not received a single protest concerning this intervention. On the contrary, the number of expressions of support is overwhelming: many individual States, regional organizations (including ECOWAS), the UN Secretary General and the members of the UN Security Council themselves have expressed their support and understanding. Even the rare States who expressed their opposition to this intervention did not challenge its legality. This contrasts with various military interventions in the past which were met with strong criticism and seems to indicate that no State doubts the legality of the French intervention in Mali.
But what is the precise legal basis authorizing it?
The day after the beginning of Operation Serval, the French President declared that
France – at the request of the President of Mali and in compliance with the Charter of the United Nations – has committed herself to supporting the Malian army in the face of the terrorist aggression threatening the whole of West Africa. […] [Our Mission] consists in preparing the deployment of an African intervention force to enable Mali to regain her territorial integrity, in line with the Security Council resolutions” (emphasis added)
In a more detailed way the French MFA Laurent Fabius declared to the press that the legal justifications for the intervention are:
firstly, the appeal and the request made by Mali’s legitimate government, so here this is a case of legitimate self-defence; and secondly, all the United Nations resolutions, which not only allow but require those countries capable of doing so to support the fight against the terrorists in this matter. […] [T]o this legitimacy, drawn from Article 51 – to the legitimacy drawn from the United Nations resolutions – I’d like to add, if it were needed, two other forms of legitimacy: firstly the request by ECOWAS, the Economic Community of West African States, and [secondly] the position taken by the African Union […], who asked everyone to provide, in line with the relevant decisions by the Peace and Security Council, the required support at logistical and financial level and in terms of strengthening the capabilities of the Malian defence and security forces. So nobody is going to challenge this legitimacy” (emphasis added)
In other statements M. Fabius insisted that France intervenes within the context of Resolution 2085 and of article 51 of the Charter. France thus proposed three legal arguments: 1) Collective self-defense under article 51 of the UN Charter; 2) The consent of the legitimate government of Mali; and 3) Authorization by the UNSC.
It is intriguing that France felt the need to put forward three different legal justifications. We could probably think that if France was right, one legal ground would certainly have been enough. A devil’s advocate might even go as far as to think that if France has been invoking all these different legal arguments, that may be down to a concern that none of them is capable by itself of providing sufficient justification for the intervention – but that the combination of all three might!
In this First Part of our comment we will focus on the argument of self-defense. In the Second Part, tomorrow, we will discuss the two other legal arguments used by France.
Can Self-defense justify the French Intervention in Mali?
The first argument put forward by France is collective self-defense under article 51, following the request of the Malian authorities, in order to counter the “terrorist aggression” from the North of Mali.
According to the French newspaper Le Monde, France invoked article 51 of the UN Charter as the basis for its intervention in Mali during the UNSC meeting on Mali of 14th January, and “not a single member of the UN Security Council contested this interpretation of International Law” (see also this). If this is true, we find this consensus within the UNSC rather puzzling. The reference to article 51 of the UN Chapter in order to justify Operation Serval is problematic for three reasons.
1. No armed attack by another State
Traditionally, in order to exercise self-defense under article 51 there must be an armed attack of certain gravity by one State against another. Indeed, the ICJ, in its 2004 advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory found that article 51 ‘ha[d] no relevance in this case’ since that provision recognises:
[T]he existence of an inherent right of self-defence in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State…” (§ 139).
This position has been confirmed by the ICJ in its 2005 Judgment concerning Armed Activities on the Territory of the Congo (DRC v. Uganda), (§§146-147). In the case of the French intervention in Mali it is crystal clear that there is no “armed attack” against Mali by another State.
2. No case of “indirect aggression” either
Since the 9/11 attacks the question of “indirect aggression” has been widely discussed. This theory implies that an armed attack committed by private groups could be attributed to a State which is substantially implicated in their activities and supports, helps or harbors these groups. We do not need to re-open this important doctrinal question here because it is also very clear that neither Mali nor France invoked this theory and there is no question of undertaking action in “self-defense” against a third State.
3. Self-defense against exclusively private groups and “lonely terrorists”?
In combination with the argument of “indirect aggression” several scholars claimed since the 9/11 attacks that article 51 could also be invoked in order to use force in self-defense against exclusively private groups, such as terrorists, with no “third State connection” but capable of launching important armed attacks. As we have seen, the ICJ in its two decisions of 2004 and 2005 did not accept such an extension of the scope of articles 51 and 2§4 of the UN Charter. These decisions have been criticized by some scholars, some States (such as the US) and, indeed, by some Judges in their separate opinions - such as Judge Koojmans who found it “unreasonable to deny the attacked State the right to self-defence merely because there is no attacker State…”. Nonetheless, according to Olivier Corten “the inter-State character of [article 51] has been confirmed in practice since 11 September 2001” (The Law Against War, Hart, 2010, at 197).
If it is true that, as mentioned, “not a single member of the UN Security Council contested” the applicability of article 51 in relation with the French intervention in Mali, then this case could probably represent a major shift in State practice in this field and put in doubt Corten’s conclusion. It must be emphasized that, as Corten rightly points out, the major objection for accepting the applicability of article 51 to actions of non State actors is that it is not possible to allow military operations to be conducted under “self-defense” in the territory of another State that is innocent (because it has no links with the terrorists using its territory). But with respect to the situation in Mali this objection cannot be sustained: the armed activities under article 51 take place inside the territory of Mali – so the argument of the third “innocent” State is not relevant anymore. Could we thus consider that we are witnessing a clear and consensual extension of article 51 against non-State actors inside the territory of the attacked State?
We shouldn’t jump easily to such a conclusion. The problem with the situation in Mali is that, even if it is applicable exclusively to non-State actors, the theory of “external aggression” is not easy to establish. Although many foreign jihadists continue to pour into Mali, some of the groups opposing the Malian government and occupying the North of the country are exclusively or mainly composed by local Malian people.
This is essentially the case of The National Movement Liberation of Azawad (MNLA) which is made up of Tuareg, fights for the rights of Mali’s minority Tuareg community and seeks independence for a homeland it calls Azawad. France made “a clear distinction” between the MNLA and the “terrorists” and declared that “there will be no action against the Tuareg”, while, as we will see, the MNLA welcomed the French intervention and offered to help the “fight against terrorists” under some conditions. However, it will be interesting to see how this de facto alliance will survive the proclaimed French military aim of “total reconquest” of Mali and the fear that the Malian army will take advantage of the situation in order to crush the Tuareg rebellion.
Among the three Islamic groups that oppose the government, Ansar Dine is the only genuine home-grown movement. Its members are mostly Malians from the nomadic Tuareg ethnic group. The second group, the Movement for Oneness and Jihad in West Africa (MUJAO), also counts many Malian Tuaregs within its ranks. According to a report, Ansar Dine and Mujao have expanded the rebellion beyond the Tuaregs by incorporating a number of other Malian ethnic groups. Among the three Islamic groups only Al-Qaeda in the Islamic Maghreb (AQIM) seems to be composed exclusively by foreign elements.
Global recognition of the applicability of collective self-defense in such a context would thus amount to acknowledging the right of a government fighting a (mainly) civil war to portray part of its own population as “aggressors” and ask for foreign help to beat them. It is our concern that such an evolution might have negative effects for international peace and security.
Nor does this make any sense from a legal point of view. On the one hand we can hardly see why there should be a need to extend in such a controversial way the notion of “self-defense” in order to allow a State to use force against part of its own population. There is no need to authorize what is already authorized: all States have sovereign rights over their territory authorizing them to deploy police or military forces in order to suppress acts of terrorism and counteract, within the limits of human rights and/or jus in bello rules, an armed insurrection or separatist movement. They do not need an additional entitlement of “self-defense” under article 51 to do so. On the other hand, extending the institution of self-defense in such a way exclusively in order to be able to get foreign help to wipe out internal threats, is also useless because this situation is already covered by the theory of consent to military intervention which we will discuss in Part II tomorrow.