French Military Intervention in Mali: It’s Legal but… Why? Part II: Consent and UNSC Authorisation

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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. “Military assistance on request could nonetheless be perfectly legal when its purpose is different from arbitrating in such a way an internal political strife. As we have demonstrated in our 2004 study this is for example the case when a State assists another during a joint fight against terrorism. Of course, as we emphasized in this study, the problem which arises immediately is who can make the decision that a specific group is a terrorist group. Indeed established governments often try to portray their opponents as “terrorists” in order to de-legitimate them politically and be legally able to request external help against them.

In the case of Mali there is no doubt that at least two of the three Islamist groups against whom France is intervening are “terrorist groups”. Both Al-Qaeda in the Islamic Maghreb (AQIM) and, more recently (see §2 of S/RES 2085) the Movement of Unity and Jihad in Western Africa (MUJWA) have been placed by the UN Security Council and several States on the Al-Qaida sanctions list established and maintained by the Committee pursuant to resolutions 1267 (1999) and 1989 (2011). Things are more complicated, nonetheless, concerning the Ansar Dine movement which has not yet been placed on the UN terrorist lists and which has tried to distance itself from ‘terrorism’. On the other hand the terrible practices applied to the civilian population of Mali in the occupied northern territories during the past few months (stoning, amputations, whippings and other forms of corporal punishment, destruction of cultural heritage, etc.) have been common place for the three Islamist groups.

In any case, the National Movement for the Liberation of Azawad (MNLA) is not considered as a terrorist movement. The fact that this movement made a declaration in favor of this intervention against “terrorists” after the start of Operation Serval is probably an indication of the fact that some anti-government rebels themselves seem to assimilate the Ansar Dine movement with the two other Islamist groups (see communiqué N-46 of 13/01/2013 saying that the MNLA will act to help a successful outcome of the operations against terrorism – while asking the Malian Army not to cross the “line of demarcation” with Azawad, the separatist area of Northen Mali of which it has unilaterally declared the independence on 6 April 2012. See also this and this).

Interpretation of UNSC Resolution 2085

Last, but certainly not least, France said several times that it was acting within the context of UNSC Resolution 2085. This is probably the preferable legal basis for Operation Serval. On the one hand it seems pretty clear that, notwithstanding the restricted terms used by UNSC Resolution 2085, both the UN Security Council and other international organizations clearly interpreted from the beginning this Resolution as authorizing the French intervention. On the other hand France’s attitude till now indicates that this State tries to render the full realization of Resolution 2085 possible.

If we read jointly paragraphs 7, 9, 11, 13 and 14 of Resolution 2085 it seems clear that the UNSC authorized the use of force (“all necessary measures”) by an African-led International Support Mission in Mali (AFISMA) while urging all member States, including “interested bilateral partners” to help the deployment of AFISMA and offer “any necessary assistance in efforts to reduce the threat posed by terrorist organizations…”. It is well known that, due to many logistical difficulties, this UN-approved deployment was not expected to take place before September 2013. African leaders did not seem confident that a regional force could win a war against the rebels and appealed for help from Western powers. This was, for example, the case of the African Union chairman who, in January 8, called for NATO to “send forces” to Mali to help fight militant Islamists. Two days later the members of the Security Council met urgently in order to deal with the reported military movements and attacks by “terrorist and extremist groups” in the north of Mali. In a Security Council Press Statement published the 10th of January 2013, just before the French intervention, they observed that “this serious deterioration of the situation threatens even more the stability and integrity of Mali and constitutes a direct threat to international peace and security”. The members of the Security Council then:

“recall resolutions 2056 (2012), 2071 (2012) and 2085 (2012) adopted under Chapter VII of the Charter of the United Nations as well as the urgent need to counter the increasing terrorist threat in Mali.

The members of the Security Council reiterate their call to Member States to assist the settlement of the crisis in Mali and, in particular, to provide assistance to the Malian Defence and Security Forces in order to reduce the threat posed by terrorist organizations and associated groups.

The members of the Security Council express their determination to pursue the full implementation of its resolutions on Mali, in particular resolution 2085 in all its dimensions. In this context, they call for a rapid deployment of the African-led International Support Mission in Mali (AFISMA)…” (emphasis added).

It seems then that, confronted with “the urgent need to counter the increasing terrorist threat in Mali”, the UNSC changed its tune! The AFISMA should be deployed more rapidly but, while waiting, and in order to avoid an irreversible situation which could completely jeopardize the realization of Resolution 2085, Member States should “provide assistance to the Malian Defence and Security Forces in order to reduce the threat posed by terrorist organizations and associated groups”!

This interpretation by the UNSC of Resolution 2085 in a way that authorizes not only AFISMA but also all member States to provide military assistance to the Malian Forces in order to counter the terrorists advance, has also been confirmed by the African regional body the most directly concerned, the Economic Community of West African States (ECOWAS). On 12th January 2013 the ECOWAS published a Statement in which it “welcomes UN Security Council Press Release of 10th January 2013 authorising immediate intervention in Mali to stabilise the situation” and “thanks the French Government for its initiatives to support Mali”. (emphasis added).

It would then appear that, faced with the urgency of the situation, the UNSC interpreted Resolution 2085 in a way that allowed France to assist the Malian forces urgently in order to counteract the progression of the three Islamist Groups. Since then France has repeated several times that now that the progression by Islamist militants on Bamako had been halted, Africa must take the lead in Mali in a multilateral military intervention in conformity with UNSC Resolution 2085. While the “urgent interpretation” of this resolution by the UNSC and all other international actors directly involved in the wake of the French intervention and the consensus that followed concerning the legality of this intervention are probably sufficient to justify the recent events in Mali, we think that it will be useful for the UN Security Council to act in a more responsible manner and to adopt a new resolution in order to frame the exact role of France (and, potentially, other non-African actors) in Mali.

 (The authors would like to thank Olivier Corten for his helpful comments on an earlier draft of this paper. The usual disclaimer applies).

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    Comments

    Oliver Daum says

    January 25, 2013

    Thanks to the authors for this interesting contribution to initiate an important discussion about the legality of the French military intervention in Mali.

    As far as I am concerned, I cannot support the author’s argument that the UN Security Council Resolution 2085 provides an adequate legal basis to intervene militarily in Mali for the French State.

    It is correct, that the members of the UN Security Council authorized “the deployment of an African-led International Support Mission in Mali (AFISMA)” [para. 9 of the Resolution]. One of the tasks of AFISMA is “to support the Malian authorities in recovering the areas in the north of its territory under the control of terrorist, extremist and armed groups and in reducing the threat posed by terrorist organizations….” [para. 9 lit. b]. From an overview of all the tasks AFISMA is charged with by the Resolution, it can be concluded that AFISMA must support or assist etc. the Malian Government, which is primarily responsible and charged to restore public order on its own territory. AFISMA may not conduct any action against or without will of the Malian Government.

    Further, the reader’s attention shall be drawn to the part “African-led” of the mission’s name. The members of the UN Security Council had in mind that the military operations conducted on the grounds of the Resolution 2085 are to be under the auspices of at least one African State other than Mali. A mere participation of one African State to a French on-going military intervention does not suffice. It is an African State that must take the “leading role” of the various actions carried out by AFISMA. The members of the UN Security Council did not think about the French State to take the required leading role by the time they adopted the Resolution.

    In the part of the Resolution - International Support - every Member State of the UN, that is not attributed a leading role in AFISMA, is called upon to “to contribute troops to AFISMA in order to enable AFISMA to fulfil its mandate” (emphasises added) [para. 13] and “to provide coordinated support to AFISMA, including military training, provision of equipment, intelligence, logistical support etc.” [para. 14]. Thus, the French State is attributed the sole role to contribute, support etc. to AFISMA. To put it in a nutshell, the French State in fact is assigned the helper-of-the-helper-role.

    The aforementioned elaborations disclose why the Resolution 2085 in itself does not provide an adequate legal basis for the French military intervention. However, the ensuing UN Security Council press release may not complete an insufficient Resolution. A press release is not a legally binding document, but rather it may have the function of interpretative guidance only. This function could be the case here, though, the wording of the press release in question is in itself in no way clear enough to clarify that the French State has been actually authorized to use force on behalf of the Malian Government.

    Instead, the French State may invoke for the justification of its military intervention in Mali the law of “intervention by invitation”. Accordingly, a Government may request another State to support it to restore public order in its conflict against its own citizens. In order to be legal, the inviting Government must be sufficiently legitimized by its own people. It is the central issue of the intervention by invitation whether a Government which is engaged in an internal conflict against a representative part of its own people, can still claim to legitimately represent the same. In the case of Mali, it is less the Malian people who fight against the Malian Government but rather terrorists and related persons who did not feel being represented by the Malian Government at no time. Thus, the Government is sufficiently legitimized to invite the French State to intervene on their behalf in the on-going conflict. In this regard, it does not matter that the Head of the Malian Government has changed within the last twelve months for times.

    Pierre d'Argent says

    January 29, 2013

    Dear Karine and Theodore,

    Many thanks for this very informative and interesting post.

    I share most of your views, but I would not make too much of the declaration of Fabius to the press on 11 January. The three legal grounds that you point out are just briefly mentioned in a reply to a question raised by a journalist. I am not sure such declaration really reflects the official legal doctrine of France. And of course, the addition of those grounds is awkward: no need of a Security Council authorization if the situation is one of self-defense, whereas the request by Mali is needed both in (collective) self-defense and absent self-defense. The fine lawyers at the Quay d'Orsay know that pretty well and I doubt they would do such mistakes, unless there is some political advantage to it.

    What you serve the press and the public is one thing; what you actually affirm as the legal doctrine of your country is sometimes quite another. Just remember what the Bush administration publicly declared in 2003 and how very different was the legal argument presented to the Security council (breach of 687, hence revival of 678 despite paragraph 12 of 1441 -- and the French rejecting it simply because the verb "restore" in the November 2002 draft had been replaced at their request by "preserve", meaning peace existed and was not breached, etc...)

    In my view, it is quite telling that in the official French letter to the SG and SC (S/2013/17), there is no mention of SC authorization and no mention of (collective) self-defense: the request of the interim president of Mali is only mentioned. As far as Res. 2085 (2012)is concerned, France expresses its opinion according to which the situation justifies the speeding up of its implementation -- which implicitly means that it considers that what it does is in line with the purpose of 2085, but not necessarily that it is based on it.

    Now, if we take for granted that the Malian request is the actual legal ground for the French intervention, what is interesting is to notice that the validity of such request has not been contested by anyone, despite the fact that:
    - the Malian government is not fully effective, as half of Mali seceded;
    - the current Malian government is the result of a coup in March last year that was largely condemned.

    It would also be interesting to know if a bilateral treaty of military assistance exists between France and Mali, and to what extend it has been triggered. If it has been applied, the two elements mentioned above would again deserve some attention.

    All this leads me to think that any legal appraisal of such situation cannot be based on the automatic and abstract application of rules. There is clearly a substantive judgment at stake, a balance that is struck and which is based on core values enshrined in the principles and purposes of the UN, as legal norms -- and it might be useful to recall that those principles and purposes are opposable to individuals (i.e. members of the various terrorists groups), see Art. 1 F, c) of 1951 Geneva Convention.

    Best,

    Pierre