“You are asking what would we do to the terrorists if we find them? We will destroy them.” These were the words of French President, Francois Hollande, a few days after having launched Operation Serval, the French military intervention in Mali. The ongoing situation is far more complicated, however, than it may appear from Hollande’s strident rhetoric – at least from a legal perspective. This article aims to provide a short account of the three main issues of international law raised by the French action: the question of the lawfulness of the intervention, the implications for international humanitarian and human rights law and the significance of the investigation by the International Criminal Court (ICC) now underway.

The lawfulness of the French intervention

In order to justify legally the military intervention in Mali, France put forward three arguments: an invitation by the Malian government, its right of collective self-defense and the authorization given by the United Nations (UN) Security Council in Resolution 2085 (20 December 2012). Although this multi-layered approach may have carried weight politically speaking, invoking the three separate legal grounds considerably undermined Paris’ overall position as the first is the only one capable of rendering the intervention lawful. Indeed, neither self-defense nor Resolution 2085 can justify the actions of the French military. In politics, it seems, the validity of a set of arguments is less important than the number advocated.

Considering that France had been officially invited to intervene by Malian authorities in order to defeat Jihadists in the north of the country, Operation Serval can be considered as lawful under international law. This may seem overly simple, but as Mali gave its consent to the operation, no further legal justification was required. At the same time, France still felt it necessary to invoke the other two arguments based on the UN Charter. Yet, as these fail to strengthen the case for intervention, they instead undermine the whole legal basis. Let us explain.

Under international law, the use of armed force by a state against the territory of another state can be justified either by virtue of an authorization given by the UN Security Council acting under Chapter VII of the UN Charter – the so-called collective security system – or in case of individual or collective self defense.

The system of authorization (delegation) was born from the practice of the Security Council in order to keep the collective security system alive. Indeed, given the Security Council could not launch military interventions under its own command and control (because states always refused to make available their armed forces), it decided to delegate the use of force to states. According to this system, states can lawfully launch military operations abroad as soon as the Security Council authorizes them to use “all necessary means” to maintain or restore international peace and security.

In Resolution 2085, the Security Council “authorize[d] the deployment of an African-led International Support Mission in Mali (AFISMA) for an initial period of one year, which [should] take all necessary measures.” At first glance, France could legitimately invoke this resolution to justify its intervention in Mali. Except, that is, the military intervention had to be under African command and control. Although France had the consent of the Malian authorities in launching Operation Serval, this does not actually constitute compliance with Resolution 2085 as Africans were not in charge. The argument of the legality of the French military intervention on account of the authorization therefore falls flat. 

The argument of self-defense put forward by the French Minister of Foreign Affairs, Laurent Fabius, also fails to hold. Under international law, several conditions must be met in order for the right of self defense to be invoked. In the case of Mali, two were not fulfilled: the “armed attack condition” and the suspension of the exercise of self-defense once “the Security Council has taken measures to maintain peace and security.”

In order to exercise self-defense, there must be an armed attack of certain gravity by one state against another. In other words, the armed attack must be led by a state, not a non-state actor. Although this position still remains controversial, it has been confirmed twice by the International Court of Justice in its Advisory Opinion on the Wall in the Occupied Palestinian Territories (2004) and in its decision in the case Armed Activities on the Territory of the Congo (2005). Mali was not the victim of an armed attack by a state. The military intervention was a response to acts of violence perpetrated by a constellation of non-state actors, such as Al-Qaeda in the Islamic Mahgreb, the Movement for Oneness and Jihad in West Africa and the Ansar Dine movement.

Similarly, as self-defense may be exercised only “until the Security Council has taken measures to maintain peace and security,” as soon as the Security Council opens Chapter VII and makes decisions in this context, the right of states to self-defense is suspended. On 20 December, the Security Council decided to act under Chapter VII by adopting Resolution 2085. From this date, therefore, the right of self-defense was suspended and could not be invoked by France.

Implications for international humanitarian law and international human rights law

International humanitarian law (IHL) is a branch of international law applicable in situations of armed conflict. More specifically, IHL covers two types of armed conflicts: international armed conflict and non-international armed conflict. In the present situation, some basic questions of applicability must be clarified: is there an armed conflict in Mali? If so, is it international or non-international and what are the parties to the conflict? According to precedents from the International Criminal Tribunal for the Former Yugoslavia, “an armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state.” This definition covers both types of armed conflict recognized under IHL.

Turning to the situation in Mali, there is no international armed conflict, because there is no confrontation between states. The same conclusion cannot be reached, however, in relation to the existence of non-international armed conflict. The definition outlined above contains two decisive criteria concerning the applicability of IHL in such circumstances: the intensity of violence (expressed through the term “protracted”) and the organization of armed groups. Analyzing the facts in Northern Mali, one could argue armed confrontations that took place before the French military intervention – between different armed groups (Islamic or rebel groups) on the one hand, and between these groups and the Malian Army on the other – can be considered a non-international armed conflict. Indeed, these groups were well organized and the intensity of the violence was sufficient to meet the criteria.

In principle, the French military intervention did not change the nature of the conflict, given French forces are supporting the Malian Army against Islamic armed groups. Since Operation Serval began, however, it has been difficult to identify precisely the members of Islamic armed groups, as they have assimilated themselves amongst the civilian population. This complicates the situation, as IHL applies to parties to a conflict – the rules cannot be applied if it is impossible to identify those parties. Challenges in identification also make it difficult to assess levels of organization. Furthermore, these groups combine both criminal and terrorist activities, placing coalition forces in a dilemma. It is difficult to know whether such individuals must be treated as mere criminals, or members of armed groups fighting on a battlefield. This point is crucial to the rules governing the use of lethal force, which are more flexible under IHL than in the international human rights law applicable to police operations. As a consequence, coalition forces have to take into account both sets of rules, applying them on a case-by-case basis.

Another question linked to the applicability of IHL versus international human rights law relates to the legal status of Jihadists potentially captured by French or Malian forces. It is well known that IHL does not allow for prisoner of war status in non-international armed conflicts due to the reluctance of states to concede such rights for non-state actors. As such, these individuals could be prosecuted for the mere fact of having taken up arms against the government. In this case, they would benefit from IHL norms linked to common article 3 of the Geneva Conventions and Additional Protocol II to the conventions, as well as judicial guarantees provided by international human rights law.

And what if French forces decide to transfer detainees to Malian authorities? Is France obliged to apply its human rights obligations even in an extraterritorial context? As a party to the European Convention on Human Rights, France is obliged to respect the convention even if its forces are operating extraterritorially. This includes the obligation not to transfer any detainee to Malian authorities if there is a real risk of violation of fundamental rights, such as the prohibition on torture and inhuman or degrading treatment, the right to life and the right to a fair trial. In order to avoid any risk of violation of these rights when detainees are transferred to Malian authorities, France should sign agreements ensuring the protection of these obligations.

The ICC investigation: consequences and concerns

The Prosecutor of the ICC, Fatou Bensouda, has formally opened an investigation over the possible perpetration of international crimes in Mali. The decision was made public through a press release on 16 January, roughly six months after the opening of a preliminary examination into the situation in the country. Bensouda had determined there was a reasonable basis to believe that heinous crimes had already been committed in Mali, including murder, mutilation, rape, summary executions and unlawful attacks against protected objects.

The ICC is a permanent international criminal tribunal created by means of a treaty, the Rome Statute of the International Criminal Court, which entered into force in 2002. Mali is one of the parties to that treaty. Whilst the ICC has jurisdiction over a variety of human actions – war crimes, crimes against humanity, genocide and (in the future) aggression – investigations can only be launched in certain conditions. Indeed, the Office of the Prosecutor can either open an investigation itself in relation to specific cases leading to the reasonable belief that serious crimes have been committed, or wait until the UN Security Council or a state party asks it to scrutinize a situation. In the case of Mali, the latter description fits.

It is worth clarifying that states, as well as the Security Council, cannot formally refer specific ‘cases.’ That is, targeting individuals or groups for potential prosecution. Instead, they can only refer ‘situations,’ meaning perpetrators from the two (or more) sides of a conflict are subject equally to the scrutiny of ICC investigators. As emphasized by Bensouda in a 28 January statement, the ICC will examine both the behavior of the rebels, as well as the conduct of Malian governmental forces, the French military and AFISMA troops. Allegations of possible crimes perpetrated by the ‘governmental’ side to the conflict have already been raised by human rights NGO Amnesty International, in a report released on 1 February.

It is also important to remember the ICC exercises a ‘complementary’ rather than absolute jurisdiction. In other words, the Prosecutor can only pursue those cases that have not been genuinely investigated or prosecuted at the domestic level, and for which the competent state is unable or unwilling to do so. One could argue that a state self-referral is in itself evidence of the inability or unwillingness of that state to prosecute domestically certain crimes, but this does not prevent the ICC from tackling the complementarity assessment in due course. Indeed, this is even more relevant given some of Mali’s neighbors (for example, Burkina Faso) have legislated to ensure the state exercises domestic criminal jurisdiction over ‘Rome Statute’ crimes, wherever carried out. Alleged perpetrators of serious crimes in Mali could potentially seek refuge in one of these countries.

Yet, despite the unquestioned urgency of bringing to justice those responsible for international crimes, the ICC investigation raises at least two legitimate concerns. Firstly, the Office of the Prosecutor is once again using its authority to focus on the African continent, which has been the only region providing work for ICC judges to date. Given the Mali investigation is drawing upon already scarce financial resources, this could make it harder for Bensouda to undertake new investigations in the near future – for instance, a referral of the Syrian situation. Some commentators have also pointed out that the ICC investigation is unlikely to have any deterrent effect on the parties to the conflict. This might be true in the case of the rebels, but not necessarily with regard to Malian governmental forces and the foreign troops now present on Malian territory. Arguably, ICC investigations like the one in Mali represent a positive challenge for the increased credibility and effectiveness of international criminal justice.

The authors would like to express their gratitude to Professor Paola Gaeta for her kindness and assistance in contributing to helpful discussion on the legal issues dealt with in this article. The views expressed are those of the authors and do not necessarily represent the views of the Geneva Academy of International Humanitarian Law and Human Rights.

Opinions voiced by Global Minds do not necessarily reflect the opinions of The Global Journal.

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Framing an Intervention in Mali by Julie Mandoyan for The Global Journal.

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