By Eugene Kontorovich
France is fighting a rather serious war in Mali. What does international law say about this go-it-alone incursion into a foreign country? Given the controversy over recent interventions with mixed motives, such as the U.S. war in Iraq, it is worth consider the international legal basis for the assault and its conduct.
I. Security Council Resolution.
France has invoked the U.N. Security Council Res. 2085, passed on Dec. 20th, as the basis for their intervention. However, this is not so simple. Yes, the Council did use its Chapter VII authority to “authorize the deployment” of foreign forces to Mali – just not French force. Rather, the entire resolution is about green-lighting the African-led International Support Mission in Mali (AFISMA), a ECOWACS effort. France is not part of AFISMA, or of ECOWACS. Only AFISMA is authorized to “support the Malian authorities in recovering the areas in the north of its territory under the control of terrorist, extremist and armed groups.” (Par. 9b).
As for other U.N. member states, the resolution merely calls on them to provide logistic, training and other kinds of “support” to the ECOWACS mission (par. 14). France is not providing support, it is taking the lead role in direct combat operations. Indeed, it jumped in before AFISMA got there, because it judges the U.N. authorized African effort would be too little, too late.
Alas, an authorization by one group of countries to intervene is not a carte blanche to all interested parties, and we will have to look elsewhere for France’s authority. One should add that this aggressive reading of UN resolutions is a bit ironic given France’s criticism of US readings of resolution before the Iraq War.
II. Third-party defense: Mali’s invitation.
France’s use of force in Mali is a lot less troublesome because it was done at the invitation of the government of Mali. Every nation has the inherent right of self-defense, recognized by Art. 51 of the U.N. Charter; the charter also allows states to come to the defense of others. This kind of thing should raise no eyebrows.
There are two wrinkles in the current situation worth mentioning. First, the Malian leadership was, at least until France’s invasion, not recognized by the international community, or France for that matter, as the country’s constitutional government. Last March, a group of soldiers lead by junior officers overthrew the democratically elected government. The action met with broad international condemnation. France, for example, proclaimed that it “condemns this forceful overthrow of the constitutional order in the strongest possible terms. It calls for the restoration of the constitution and institutions.” The military junta agreed to put in a puppet prime minister for to head an interim government pending elections, easing some international concerns. But then the army sacked the new interim prime minister in December, in what I would call a “re-coup.”
Indeed, the ECOWACS forces were first being sent to Mali to topple the government they are now coming to assist. The dubiousness of the government may be way France makes its weak Security Council resolution claim.
France is of course free to recognize anyone it wants as the legitimate government of Mali, and one does not need to be to “legit” to be a legitimate government. I do not know the status of EU, French or US relations with the government. But it is at least not fully satisfying if the invasion of Mali, and bombardment of its cities at the risk of innocent casualties, is authorized by a new half-baked junta. We wouldn’t want that to become a rule, to put it mildly.
There is a further wrinkle: France is helping Mali against an internal threat. The International Court of Justice, however, ruled that “self defense” within the meaning of the UN Charter only applies to foreign invasion. Now of course it said that in an advisory opinion which in no way binds France, or any other country. Moreover, it was the opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, so the reasoning was probably of a very sui generis kind (and was criticized as such by Judges Buergenthal and Higgins).
France has also described the action as one of its own self-defense. The defense minister has said that they were acting quickly to prevent the creation of “a terrorist state at the doorstep of France and Europe.” Of course, this would expand the concept of anticipatory self-defense beyond any broad contours suggested for it, and should probably not be understood as a legal justification, rather than an explanation of why it choose to intervene in this former colonial conflict, and not, say, the much bloodier one in its former colony of Syria.
Whatever reservations one might have about the legitimacy of the Malian military-run government, they do appear to be the de fact authority in the country to the extent there is one. Certainly in the absence of protest by any other claimants to official authority, French action does not seem to violate international law in any formal way. However, its invocations of Security Council resolutions and self-defense are as spurious as superflous.