Vidan Hadzi-Vidanovic is a lawyer in the Registry of the European Court of Human Rights. The views expressed in this contribution are those of the author and do not necessarily represent the views of the European Court of Human Rights and the Council of Europe.
On 11 January France commenced air-strikes against Malian rebel forces which are controlling two thirds of the Malian territory. It also commenced ground operations several days later. The French Foreign Ministry explained that it is acting upon the invitation of the Malian government. Nevertheless, it emphasized that the action is conducted “strictly in the framework of the United Nations Security Council resolutions”. The intervention came a day after the Security Council called for a “rapid deployment of the African-led International Support Mission in Mali (AFISMA)” which was authorized by Resolution 2085 (2012) to “take all necessary measures” for supporting 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”.
Looking at the position of the French government and the formulation of the relevant provisions of Resolution 2085, one may rightfully wonder what the legal basis for the French intervention and the announced deployment of the Nigerian-led intervention forces actually is. Is it an intervention based on the invitation of the legitimate government of Mali, or an intervention based on the authorization of the Security Council, or are the two separate legal grounds mutually reinforcing?
Resolution 2085 envisions AFISMA exclusively as a force with the mandate to assist the Malian government in assuming its responsibility to exercise full authority over the entire territory of Mali. The Resolution binds the intervening force to conduct its tasks with “full respect of the sovereignty, territorial integrity and unity of Mali”. This formulation strongly suggests that, despite the Security Council authorization, the intervening forces cannot act on Malian territory without the consent of the legitimate Malian authorities. An intervention without Malian consent would simply go against “sovereignty” of Mali, even if ostensibly conducted in support of its government. The invitation or consent of the Malian government is, therefore, seemingly required by Resolution 2085.
One might argue that the invocation of Malian sovereignty in the Resolution is a matter of usual practice of the Council and that it does not affect the scope of the Council’s authorization. A closer investigation of past resolutions, however, reveals that the Council did not normally show particular sensitivity to the sovereignty of notionally legitimate governments when authorising interventions on their behalf. When the Council authorised the use of force against the Haitian junta in 1994 by Resolution 940, it made no mention of Haitian sovereignty or the wishes of the Aristide government in exile. It was legally immaterial whether Aristide government would consent to the intervention under the authorisation of the Security Council or not. Similarly, when the Council in its Resolution 1975 (2011) urged the Gbago administration in the Côte d’Ivoire to hand over power to the elected president Ouattara and reconfirmed its authorization of the use of force with the primary purpose of protecting the civilian population (although the result of the use of force was inevitably Gbago’s ousting from power as commented by Tzanakopoulos in his earlier post on this blog), the Council only mentioned its commitment to the sovereignty of the Côte d’Ivoire in the preambular part of the Resolution. It did not state that the use of force must be performed with full respect of the sovereignty of the Côte d’Ivoire. In contrast, when the Council was confronted with piracy in the Horn of Africa it “authorised” by Resolution 1816 (2008) foreign naval powers to pursue pirate ships into the Somali territorial waters and to undertake military operations on Somali soil for the purpose of countering piracy and armed robbery at sea (operative para. 7 of the Resolution). The authorisation, however, was conditioned by an explicit consent of Somali Transitional Government to such intrusions (operative para. 9 of the Resolution) (on the Resolution and its interpretation see Judge Treves’ excellent article in the EJIL). Resolution 2085 on the authorisation of the use of force in Mali should be interpreted in a similar fashion: the invitation or consent of the Malian government is necessary for the intervention to take place.
This, however, does not mean that the Resolution has merely political and no legal significance, i.e. that it is legally simply a redundancy in the presence of Malian consent. Normally, once a state can demonstrate that it is using force outside its own territory on the ground of one of the accepted exceptions to Article 2(4) of the UN Charter, or under circumstances that do not even bring the prohibition of the use of force into play, it does not need the approval of the Security Council. Of course, even in such circumstances the authorization can add to the legitimacy of the action, but not to its legality, as it was the case, for example, in the First Gulf War (See, for example, Dinstein, War, Aggression and Self-Defence, 5th ed, (CUP, 2011), at 301). There are, however, situations in which it is very hard to tell whether the conditions for the legality of the use of force are met and the situation in Mali is precisely one of those situations.
When a state uses force on the territory of another state at theinvitation and with full consent of the government of that state, the prohibition of the use of force in Article 2(4) of the Charter is not even engaged. When intervening forces are invited by a government which exercises its sovereign powers by issuing such an invitation, no use of force of one state against another exists. This, however, holds true only if it is possible to deduce what group is the government of a state.
It was traditionally axiomatic that states are represented by governments and the government was considered to be any group which exercises effective control over the state’s territory, irrespective of how such control was achieved. The principle was famously formulated in the Dreyfus case of 1901. The effective control doctrine seems to be giving way in recent years to some kind of a “legitimacy doctrine” according to which “governments which came into power by extra-constitutional means should not be recognised, at least until the change had been accepted by the people” (see, e.g., in M. Shaw, International Law, 6th ed (CUP, 2006), at 456). These two opposing views open a wide field for diverse interpretations as to what group has the capacity to send an invitation for the intervention – the group that exercises the effective control or the group that has legitimacy (Talmon, for example, advocates for the latter approach in his Recognition of Governments in International Law, (Clarendon, 1998) at 113 ff.). It is even more frequent in practice that both contesting groups exercise effective control over some part of the territory and that they both claim legitimacy. In these situations, it is really initially up to an intervening state to decide who is the “legitimate” representative of a state. This obviously can lead (and has led) to numerous abuses of the intervention by invitation or consent and ultimately violations of the right of self-determination of the governed people. To avoid abuses in situations where the legitimate representative of a state cannot be undoubtedly determined, many argue that once the internal disturbances evolve into an internal armed conflict in which an organised rebel armed group controls a significant portion of state’s territory from which it can perform sustained military operations of a certain intensity, foreign states cannot intervene by the invitation of any side of such conflict (Schachter 82 Michigan L. Rev. 1620 (1984); Le Mon, 35 Int’l. L. & Pol. 741 (2003); Moore, 13 Ga. J. Int’l. & Comp. L. 191 (1983)).
The present situation in Mali can certainly be categorised as an internal armed conflict. Rebel groups control more than two thirds of the country’s territory, they are well organised, they perform sustained military operations against the government in Bamako and their military operations are of significant intensity. And although it might intuitively seem that the Malian rebel groups (Al Qaeda in Islamic Maghreb and Movement of Unity and Jihad in Western Africa) which are allegedly affiliated to Al Qaeda can never legitimately represent the people of Mali and the Malian state, it is important that such intuition is not applied by the intervening states unilaterally. It is not and should not be up to individual states to conclusively decide which party to the conflict is legitimate and which one is not. The Security Council of the United Nations, however, does have such power.
Although Resolution 2085 contains all the magic words of the “Security Council authorisation” to use force, it actually only determines which side of the conflict is the bearer of sovereignty in Mali and which side of the conflict can be assisted by a foreign intervention. In addition, the Resolution clearly “emphasises” that, prior to the commencement of the AFISMA operations, “the military planning will have to be further refined” and “requests that the Secretary-General also confirm in advance the Council’s satisfaction with the planned military offensive operation.” No such satisfaction has been expressed prior to the commencement of the French intervention, although it is possible to argue that it was implied in the Council’s call for the rapid deployment of the AFISMA from 10 January. Finally, the Resolution’s demand that the operations are conducted with full respect of Malian sovereignty means that the Resolution would not by itself be a sufficient legal ground for the foreign intervention in the Malian conflict, just as the invitation by a government from Bamako on its own would not suffice. Only together do they provide a valid legal basis for a foreign intervention.
This hybrid approach certainly deserves attention and merits serious consideration in the future efforts to regulate controversial forms of armed intervention. It presents a fine mixture of a long-awaited effective and responsive collective security system and the preservation of the importance of state sovereignty. While this approach preserves the Council’s ultimate authority for deciding on the intervention, it also gives a much more active role to the affected state, giving it (somewhat) greater control over the foreign intervention on its territory. This approach remedies the arbitrariness of bilateral “agreements” between the intervening states and the beneficiary of the intervention (be it the effective or legitimate government or even the rebels) and secures that the potential hidden self-interest of an intervening state is put in check and under at least some control of the body empowered to maintain international peace and security.