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Under the UN Security Council's Watchful Eyes: Military Intervention by Invitation in the Malian Conflict

  • KARINE BANNELIER and THEODORE CHRISTAKIS
Abstract

Responding to an urgent request by the authorities of Mali, France launched Operation Serval against several terrorist armed groups in January 2013. The French troops were assisted by a Chadian contingent and by forces progressively deployed by other African countries within a UNSC authorized African force (Resolution 2085). While the French and African military operations in Mali were clearly legal, they raise important questions of jus ad bellum in relation to the two legal arguments put forward to justify them: intervention by invitation, and UNSC authorization. In this paper we first discuss the general rules of international law applying to intervention by invitation. We explain that such an intervention could sometimes be contrary to the principle of self-determination and we propose a purpose-based approach. We then apply these rules to the situation in Mali and conclude that the French and Chadian interventions were legal because, on the one hand, the request was validly formulated by the internationally recognized government of Mali and, on the other hand, their legitimate purpose was to fight terrorism. The UNSC approved this legal basis and ‘helped’ France and Chad appeal validly to it by listing the enemy as ‘terrorist groups’. It gave its ‘blessing’ to these interventions, without authorizing them, and observed the events with relief. The adoption of Resolution 2100 on 25 April 2013 raises new legal questions. The Council creates a UN peace enforcement mission in Mali, MINUSMA, which has a robust use-of-force mandate. Created just a few weeks after the DRC Intervention Brigade, this force seems to indicate an ongoing evolution (revolution?) in UN peacekeeping, notwithstanding the assurances by some UNSC member states that MINUSMA will avoid ‘offensive counter-terrorism operations’. At the same time Resolution 2100 gives a restricted use-of-force mandate to France (to protect MINUSMA), without challenging the legal validity of intervention by invitation for all other tasks. The conflict in Mali might thus remain for some time yet between the latitude of UNSC authorization and the longitude of unilateral intervention by invitation.

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1 As of the end of March 2013, AFISMA had deployed 6,500 troops.

2 We will not discuss here other interesting questions in relation to the intervention in Mali such as those concerning international humanitarian law, human rights law, or international criminal law. Researchers interested in these questions could refer, amongst others, to the provisions of the SOFA Agreement signed on 7 March 2013 between France and Mali where both states accept the applicability of Protocol II and make arrangements in relation to the transfer of prisoners and other human rights issues. Text available at www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000027376103.

3 Al Qaeda in the Islamic Maghreb is al Qaeda's North African wing, made up mostly of foreign fighters.

4 Or ‘MUJWA’: the Movement for Oneness and Jihad in West Africa is an AQIM splinter group whose aim is to spread jihad to the whole of West Africa.

5 Ansar Al-Dine (Defenders of the Faith) was the only genuine home-grown movement, led by former Tuareg rebel leader Iyad Ag Ghaly. Its members were mostly Malians from the nomadic Tuareg ethnic group (although many young mujahideen from different areas across the Islamic world joined its ranks recently).

6 Some rare states like Egypt (Le Monde, 21 January 2013), Qatar (www.fri.fr/afrique/20130118-qatarunreligieux-influent-critique-fortement-intervention-française-mali), or Tunisia (www.en.starafrica.com/news/tunisia-oppose-foreign-intervention-in-mali.html) questioned the appropriateness of the intervention without ever putting in doubt its legality.

7 See, e.g., Statement of the President of the ECOWAS Commission on the situation in Mali, 12 January 2013, at www.news.ecowas.int/presseshow.php?nb=006&lang=en&annee=2013.

8 UN News Centre, ‘Mali: Ban Welcomes Bilateral Assistance to Stop Southward Onslaught of Insurgents’, 14 January 2013, at www.un.org/apps/news/story.asp?NewsID=43920&Cr=+mali+&Cr1=#.UbTPne1OLIU.

9 See the preamble of S/RES 2100 (25 April 2013) where the UNSC ‘welcom[es] the swift action by the French forces’; or M. Doyle, ‘Mali Conflict: UN Backs France's Military Intervention’, 15 January 2013, at www.bbc.co.uk/news/world-africa-21021132.

10 According to him the legal basis of the intervention was as follows: ‘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 on the logistical and financial levels and in terms of strengthening the capabilities of the Malian defence and security forces. So nobody is going to challenge this legitimacy’. Press conference by M. Laurent Fabius, French MFA, 11 January 2013, at www.basedoc.diplomatie.gouv.fr/vues/Kiosque/FranceDiplomatie/kiosque.php?fichier=baen2013-01-14.html. See also his speech in the French Senate, ‘La France agit à la demande des autorités légitimes du Mali, qui, à deux reprises, lui ont lancé un appel à l’aide. Elle s’inscrit dans le respect de la charte des Nations unies et de son Article 51, en parfaite cohérence politique avec les résolutions du Conseil de sécurité’. www.basedoc.diplomatie.gouv.fr/vues/Kiosque/FranceDiplomatie/kiosque.php?fichier=bafr2013-01-16.html#Chapitre4.

11 T. Christakis and K. Bannelier, ‘French Military Intervention in Mali: It's Legal but. . . Why? Part 1: The Argument of Collective Self-Defense’, at www.ejiltalk.org/french-military-intervention-in-mali-its-legal-but-why-part-i.

12 S/1013/17, Identical letters date 11th January 2013 from the Permanent Representative of France to the UN addressed to the Secretary-General and the President of the Security Council.

13 ‘Remarks at a Press Gaggle Following UNSC Consultations on Mali’, at www.usun.state.gov/briefing/statements/202714.htm (last visited 25 May 2013).

14 See S/2013/58, Letter dated 23rd January 2013 from the Permanent Representative of the UK to the UN addressed to the President of the UNSC.

15 See Tanca, A., Foreign Armed Intervention in Internal Conflict (1993), 26; Le Mon, C., ‘Unilateral Intervention by Invitation in Civil Wars: The Effective Control Test Tested’, (2003) 35 International Law and Politics 741, at 742; or A. Kassim Allo, ‘Counter-Intervention, Invitation, Both or Neither? An Appraisal of the 2006 Ethiopian Military Intervention in Somalia’, (2009) 3 Mizan L. Rev. 201, at 215.

16 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986, [1986] ICJ Rep. 14, at 246.

17 Christakis, T. and Bannelier, K., ‘Volenti non fit injuria? Les effets du consentement à l’intervention militaire’, (2004) 50 Annuaire Français de droit international, 102.

18 Another limit to the legality of intervention by invitation is in case this is contrary to UNSC resolutions. See infra part 3.1.

19 Bennouna, M., Le consentement à l’ingérence dans les conflits internes (1974), 76; Corten, O., The Law against War (2010), 289.

20 There will be no use on force ‘in their international relations’ (see Art. 2(4)). See our analysis,supra note 17, at 111–13. In this same study (at 104–11) we explain why the theory of consent as a ‘circumstance precluding wrongfulness’ elaborated by the ILC and codified in Article 20 ARSIWA is not relevant here: the problem of military intervention by invitation is not a problem of international responsibility and ‘secondary’ rules, but one concerning the scope of ‘primary’ rules.

21 For the relation between this dimension of the principle and the ‘internal’ aspect of self-determination as a principle of democratic legitimacy see Christakis, T., Le droit à l’autodétermination en dehors de situations de decolonization (1999), at 345 ff.

22 ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status’.

23 ‘By virtue of the principle of equal rights and self-determination of peoples enshrined in the Chapter of the UN, all peoples have the right to determine, without external interference, their political status’.

24 See A/RES/54/168 (25 February 2000): ‘Respect for the principles of national sovereignty and non-interference in the internal affairs of States in their electoral processes’, § 1.

25 It goes without saying that the right of people within a state to choose their own government should be exercised by ballot, not by bullet. But in case a civil war erupts, third states should not have a right to military intervention in order to decide the outcome of the conflict in favour of their political interests and preferences. Such a right could exist nonetheless in case of collective self-defence (if there is external aggression) or if there is a UNSC authorization to use force.

26 Noel, J., Le principe de non-intervention: Théorie et pratique dans les relations inter-américaines (1981), 143.

27 Chaumont, Ch., ‘Cours général de droit international public’, RCADI, (1970-I), at 406.

28 Bennouna, supra note 19. The only exception he conceded (not without warning against risk of abuse) was assistance as a response to external intervention in favour of the rebels.

29 Doswald-Beck, L., ‘The Legal Validity of Military Intervention by Invitation of the Government’, (1985) 56 BYBIL 189, at 251.

30 Nolte, G., Eingreifen auf Einladung (1999), 638. He considers nonetheless that ‘it is less clear whether foreign troops may be invited to influence directly a classical and full-scale civil war. It is submitted, however, that such operations are permissible as long as the extent of the foreign military support does not exceed the dimension of an auxiliary enterprise. An auxiliary operation may be important or even decisive for a possible victory but it may not call the political control of the inviting government into question’.

31 Gray, C., International Law and the Use of Force (2008), 81.

32 Corten, supra note 19, 289.

33 (1975) 56 AIDI, at 545–9. According to Art. 2 of this resolution: ‘Third States shall refrain from giving assistance to parties to a civil war which is being fought in the territory of another State’. The only exception recognized (Art. 3) authorized states to (a) grant humanitarian aid, (b) continue to give any technical or economic aid which is not likely to have any substantial impact on the outcome of the civil war, and (c) give any assistance prescribed, authorised or recommended by the United Nations in accordance with its Charter and other rules of international law’ See also the report of Schindler, Dietrich, ‘Le principe de non-intervention dans les guerres civiles’, (1973) 55 AIDI 416.

34 (2009) 73 AIDI 299.

35 (2011) 74 AIDI 183.

36 According to draft Art. 3 proposed by the Rapporteur: ‘International law does not prohibit any State from rendering direct military assistance to another State in a situation that does not amount to an international armed conflict, subject, however, to the latter's prior consent and further legal conditions set out below’. Among these conditions we could find the requirement that the author of consent must be ‘a legitimate, effective, and generally recognized government’ (Art. 8) and the ‘obligations of the assisting state, in particular those resulting from the principle of self-determination’ (Art. 14).

37 For a detailed analysis of the history of this resolution see G. Nolte, ‘The Resolution of the Institut de Droit International on Military Assistance on Request’, (2012) Revue Belge de droit international 241.

38 Art. 3: ‘Military assistance is prohibited when it is exercised in violation of the Charter of the United Nations, of the principles of non-intervention, of equal rights and self-determination of peoples and generally accepted standards of human rights and in particular when its object is to support an established government against its own population’. Art. 2 explains that: ‘This resolution applies to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature including acts of terrorism, below the threshold of non-international armed conflict in the sense of Art. 1 of Protocol II Additional to the Geneva Conventions relating to the Protection of Victims of Non-International Armed Conflicts of 1977’.

39 Nolte, supra note 37. G. Nolte explains that ‘the impression that the resolution constitutes a complete turnaround from the original proposal is, however, misleading’ (at 248) and proposes a refined analysis of the Rhodes resolution in order to try to identify in which cases such military assistance might be permissible after all according to the IDI. It seems nonetheless clear that the principle and the exception have been reversed between the draft and the final resolution: in the former the presumption was in favour of permissibility of military assistance (unless if there is violation of the principle of self-determination); while in the latter the principle is clearly prohibition of military assistance (unless if there is no violation of the principle of self-determination).

40 Christakis and Bannelier, supra note 17, at 127; and Corten, supra note 19, at 290.

41 For examples see Christakis and Bannelier, supra note 17, 129; or Doswald-Beck, supra note 29, 214.

42 According to the UK, for example, ‘any form of interference or assistance is prohibited (except possibly of a humanitarian kind) at a time of civil war, and control of the State's territory is divided between parties at war. However, it is widely accepted that outside interference in favour of one party to the struggle permits counter-intervention on behalf of the other, as happened in the Spanish Civil War and, more recently, in Angola’. (1986) 57 BYBIL 616.

43 Déclaration du Président de la République française à l’occasion de la 16ème conférence des chefs d’État de France et d’Afrique, La Baule, 19–21 juin 1990, Documents d’actualité internationale, November 1990 (emphasis added).

44 See Christakis and Bannelier, supra note 17, at 129.

45 See Reuters, ‘Central African Republic Appeals for French Help against Rebels, Paris Balks’, 27 December 2012, at www.uk.reuters.com/article/2012/12/27/uk-car-rebels-france-idUKBRE8BQ03720121227. Could we consider that the current events in relation with the civil war in Syria put in question these positions? Not yet, because for the time being no state has claimed the existence of a right to military intervention in Syria in favour of the one or other sides to this conflict.

46 Supra note 17, at 120–36. On the basis of state practice we have identified as lawful interventions by invitation aiming at: saving nationals abroad or having similar humanitarian ends (liberation of hostages, etc.); fighting against terrorists, drug smugglers, and other criminals; protecting the interests of the intervening state by launching, e.g., extraterritorial operations against rebels who use the territory of the neighbouring state as ‘safe haven’ etc. Corten, supra note 19, at 289, adopts the same ‘purpose-oriented’ classification, adding to the list some other legitimate objectives such as the deployment of ‘peacekeeping operations’. In the Case Concerning Armed Activities on the Territory of the Congo (DRC v. Uganda), the ICJ accepted that the DRC validly consented to the presence of Ugandan troops in its eastern border area in the period preceding August 1998 and that such a consensual intervention and co-operation in order to assure the security of a common border was legal. It insisted, nonetheless, on the fact that such an intervention becomes illegal in case of withdrawal of consent. Merits, Judgment of 19 December 2005, [2005] ICJ Rep. 168, at 196, para. 42.

47 Commentary to draft Art. 29, §11, (1979) ILC Yearbook, Vol II(2), at 112.

48 For example absence of ex ante consent in cases where the government which launched the request was formed after the military intervention and often thanks to it, and cases where there were doubts about the existence or the ‘free’ character of the consent or where clearly the invitation was elicited and used by strong states to fulfill their own agenda. Among the most famous cases we can mention the interventions of the USSR in Hungary in 1956, in Czechoslovakia in 1968, and in Afghanistan in 1979.

49 Rémy, J. P., ‘Le pouvoir malien sauvé des putschistes par les militaires français’, Le Monde, 14 January 2013.

50 Doswald-Beck, supra note 29, at 226.

51 Corten, supra note 19, at 281.

52 See, e.g., Hirsch, A., ‘Why Malians Are Welcoming French Intervention with Open Arms’, The Guardian, 16 January 2013.

53 See §2 of S/RES 2085 (20 December 2012).

54 See ‘Terrorist Designations by the US Department of State’, 7 December 2012, at www.state.gov/r/pa/prs/ps/2012/12/201660.htm.

55 See www.un.org/sc/committees/1267/NSQE13513E.shtml. See also ‘Terrorist Designations of Ansar al-Dine’, US Department of State, 21 March 2013, www.state.gov/r/pa/prs/ps/2013/03/206493.htm.

56 It is not perfectly clear nonetheless that intervention by invitation having as a purpose to help the authorities of the state fight a separatist group and restore its territorial integrity should be deemed unlawful. Indeed, taking into consideration that there is no right to ‘external’ self-determination outside the colonial context, it is possible to consider that the principle of self-determination would not be violated in such a case – and the practice does not seem to support a contrary conclusion. See Christakis and Bannelier, supra note 17, at 133–5; or Nolte, supra note 30, at 637. Contra Corten, supra note 19, at 309.

57 Mandraud, I., ‘Les populations civiles du nord du Mali sont menacées’, Le Monde, 19 January 2013.

58 For various press statements from the MNLA see www.mnlamov.net.

59 For a complete timeline of the actions of the UNSC in relation with Mali with links to all documents see www.franceonu.org/france-at-the-united-nations/geographic-files/africa/mali-1202/article/timeline-6896.

60 See SC/10590 (SC Press Statement on Mali Crisis, 22 March 2012) and S/PRST/2012/7 (Presidential Statement, 22 March 2012) where the Council ‘strongly condemns the forcible seizure of power’ in Mali, calls ‘for the immediate restoration of constitutional rule and the democratically-elected Government’, and ‘emphasizes the need to uphold and respect the sovereignty, unity and territorial integrity of Mali’.

61 See the official French letter to the UN, supra note 12, which indicates that France does not consider the act as under UNSC authorization but in line with S/RES 2085, the ‘accelerated implementation’ of which is necessary, according to France, ‘in order to resolve all aspects of the Malian crisis, both political and military’.

62 Statement by M. F. Hollande, President France, 12 January 2013 in www.basedoc.diplomatie.gouv.fr/vues/Kiosque/FranceDiplomatie/kiosque.php?fichier=baen2013-01-14.html.

63 Press conference by M. Laurent Fabius, French MFA, 11 January 2013, in ibid.

64 Paras. 7, 11, 13, and 14.

65 For a discussion on this theory (and relevant practice) see Corten, supra note 19, at 348–400.

66 SC/10878, 10 January 2013.

67 See supra note 7 (emphasis added).

68 See, e.g., Corten, O., ‘La licéité douteuse de l’action militaire de l’Ethiopie en Somalie et ses implications sur l’argument de l’intervention consentie’, (2007–8) RGDIP, at 529.

69 Military and Paramilitary Activities, supra note 16, §200.

70 Gray, supra note 31, at 123.

71 The ICJ warned that the absence of a report could weaken a claim of self-defence because failure to report could indicate that the state was not itself convinced that it acted in self-defence (§200).

72 See supra note 12.

73 See for example Roy, O., ‘Vaine stratégie française au Mali’, Le Monde, 5 February 2013; or Geneste, A. and Mandraud, I., ‘Interrogations sur le mandat de la force de l’ONU au Mali’, Le Monde, 5 April 2013.

74 S/2013/189.

75 S/RES 2098 of 28 March 2013, §9.

76 S/2013/189, §§69–70.

77 S/PV.6952, 25 April 2013, at 2.

78 Ibid.

80 S/RES 2100, para. 18.

81 See ibid., §8.

82 See S/PV.6952, 25 April 2013.

83 Our conversations with legal advisers from some UNSC member states directly involved with the adoption of Resolution 2100 indicate that at no time did the UNSC have the intent to challenge the continuous validity of intervention by invitation.

* Karine Bannelier is Assistant Professor of International Law at the University of Grenoble-Alpes, France []. Theodore Christakis is Professor of International Law and Director of the Centre for International Security and European Studies (CESICE), at the University of Grenoble-Alpes, France []. The authors would like to thank Olivier Corten, Georg Nolte, and Pierre d’Argent for their useful comments on previous drafts of this article. The usual disclaimer applies. This article covers developments until 6 June 2013.

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