The Law of the UN & Regulation of Use of Force

AHMAD IBRAHIM KULIYYAH OF LAW | INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA

PREPARED BY: ABDUL HADI BIN HAJI BAHAROM G1322905
SUPERVISOR: DR HANIFF AHAMAT


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Table of Indexes

1. Introduction...01
2. Definition: Humanitarian Intervention..04
3. The Legal Basis: Request for Assistance by Mali....05
4. Causes of Conflicts06
5. Timeline of French - Mali Intervention.10
6. French Intervention: Objectives and Missions..12
7. French Intervention: Military Strategy and Political Influences...13
8. French Intervention: War against Terrorism.15
9. UN: The legality of the purpose16
10. The Role of the Un Security Council: Blessing Or Authorising?.....17
11. The interpretation of UNSC Resolution 2085...18
12. Effects of the Conflict for Mali and France..22
13. Conclusion.25
14. References.26
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1. Introduction

Mali is an African country where faced conflicts since several years ago and its conflicts are
overlapping with security, political, and humanitarian crises. Islamist extremist groups expanded
their existence in the countrys vast, Taureg from the north followed by a March 2012 coup that
overthrew Malis elected government and led the military government. By this conflict, 350,000
people lived in chaotic life, plus with exacerbated regional food insecurity and poor
humanitarian conditions. To respond to this complex crisis, Malis government asked the France
to come and intervene in their domestic affairs by the name of humanitarian as the insurgency
was no longer effective as the military command was no longer under the government control. In
this assignment, we will discuss on how the crisis arose, what the causes of the conflicts were
and how the France intervention helped the democratic recovery on the nation itself.

For the past year, Mali has been mired in overlapping security, political, and humanitarian
crises. After Malis government was overthrown in a military coup in March 2012, insurgents,
capitalizing on the ensuing power vacuum, seized much of the countrys vast and sparsely
populated northern territory.

As of early January 2013, three loosely connected Islamist extremist groupsincluding Al
Qaeda in the Islamic Maghreb (AQIM), a U.S.-designated Foreign Terrorist Organization
reportedly controlled all major towns in the north, an area roughly the size of Texas. While the
number of Islamist insurgent combatants appears to be small, they have become increasingly
entrenched, ousting an ethnic Tuareg separatist group with which they were initially allied and
recruiting adherents among local populations.

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Meanwhile, the post-coup, nominally civilian-led government in Bamako has been weakened
by internal divisions and military interference, while years of corruption and mismanagement
appear to have hollowed out many state institutions. Malis leaders also face stark economic
constraints amid a national recession and revenue crisis. A regional food security crisis,
exacerbated by population displacements from northern Mali, also continues to cause suffering.

In March 2012, a small group of officers within the Malian army overthrew the government
by a coup dtat and chased the democratically elected Malian President Amadou Toumani
Tour into exile, the intervention of an international military mission to assist Mali in its
recapture of the North was claimed by some media and state representatives from neighbouring
countries .

On January 11, 2013, France gave their support what we called as humanitarian intervention
by launching military operations against insurgent targets in northern Mali, following a request
from the Malian government for help in repelling insurgent advances toward the south. French
operations marked a sudden and major shift in international responses to the situation in Mali. In
its military humanitarian intervention, France argued that, they were acted as followed by
Resolution 2085 adopted by the Security Council of the United Nations (UN) on 20 December
2012 (UN Security Council, 2012).

However, despite the political, institutional and security vacuum that followed the coup, the
ad-hoc installed Malian interim government has been refusing the presence of foreign military
troops on its territory for several months. It was only when the inferiority of the Malian army
became obvious that the political leaders in Bamako signalled the willingness to accept external
military assistance.
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2. Definition : Humanitarian Intervention

Humanitarian intervention has been defined as a state's use of "military force against another
state when the chief publicly declared aim of that military action is ending human-rights
violations being perpetrated by the state against which it is directed."
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There is no one standard or legal definition of humanitarian intervention; the field of analysis
(such as law, ethics, or politics) often influences the definition that is chosen. Differences in
definition include variations in whether humanitarian intervention is limited to instances where
there is an absence of consent from the host state; whether humanitarian intervention is limited to
punishment actions; and whether humanitarian intervention is limited to cases where there has
been explicit UN Security Council authorization for action.
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There is, however, a general
consensus on some of its essential characteristics:
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Humanitarian intervention involves the threat and use of military forces as a central feature It
is an intervention in the sense that it entails interfering in the internal affairs of a state by sending
military forces into the territory or airspace of a sovereign state that has not committed an act of
aggression against another state.

The intervention is in response to situations that do not necessarily pose direct threats to
states strategic interests, but instead is motivated by humanitarian objectives. The subject of
humanitarian intervention has remained a compelling foreign policy issue, especially since

1
Marjanovic, Marko (2011-04-04) Is Humanitarian War the Exception?, Mises Institute.
2
Jennifer M. Welsh. Humanitarian Intervention and International Relations. Ed. Jennifer M. Welsh. New York:
Oxford University Press, 2004.
3
Alton Frye. 'Humanitarian Intervention: Crafting a Workable Doctrine.' New York: Council on Foreign
Relations, 2000.
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NATOs intervention in Kosovo in 1999, as it highlights the tension between the principle of
state sovereignty - a defining pillar of the UN system and international law - and evolving
international norms related to human rights and the use of force.
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Moreover, it has sparked
normative and empirical debates over its legality, the ethics of using military force to respond to
human rights violations, when it should occur, who should intervene,
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and whether it is effective.

3. The Legal Basis: Request For Assistance By Mali And The Theory Of Intervention
By Invitation

In its official letter sent to the UN Security Council on 11th January 2013 France states that:

France has responded today to a request for assistance from the Interim President of the
Republic of Mali, Mr. Dioncounda Traor. Mali is facing terrorist elements from the north,
which are currently threatening the territorial integrity and very existence of the State and the
security of its population [T]he French armed forces, in response to that request and in
coordination with our partners, particularly those in the region, are supporting Malian units in
combating those terrorist elements. The operation, which is in conformity with international law,
will last as long as necessary.
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The international community and the UNSC itself accepted the validity of this argument. As
Susan Rice, the U.S. Permanent Representative to the UN, said just before the start of Operation
Serval: there is clear-cut consensus about the gravity of the situation and the right of the Malian

4
Shashi Tharoor and Sam Daws. "Humanitarian Intervention: Getting Past the Reefs." World Policy Journal
2001.
5
James Pattison, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? Oxford:
Oxford University Press, 2010.
6
S/1013/17, Identical letters dated 11th January 2013 from the Permanent Representative of France to the UN
addressed to the Secretary-General and the President of the Security Council.
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authorities to seek what assistance they can receive and any State can support and encourage
the Malian governments sovereign request for assistance from friends and partners in the region
and beyond.
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Even States, such as the UK, who offered logistical support only to the military effort in
Mali, requested an official letter by the authorities in order to justify their operations. This
means that, at any time, States operating in Mali were doing so either under the official request
of the Malian authorities or under the UNSC authorisation given to African States by resolution
2085 (infra).

The consensus about the legality of foreign intervention by invitation in Mali should not lead
to the conclusion that third States have an unlimited right to military intervention on the basis of
the consent of the authorities of the State where the intervention takes place.

4. Causes of Conflicts

The depressing socioeconomic and development indicators are compounded by the fact that
the country is highly dependent on gold mining and agricultural exports for revenue. Mali is
constantly threatened by spill overs of violent conflicts from neighbouring countries, and with
long, porous borders, the country has been affected by cross-border banditry, kidnapping and
terrorism. From our study, we can examine that, there were several factors which led to the Mali
conflicts internally and externally.

4.1 The internal factor: The Military Coup

7
Remarks at a Press Gaggle Following UNSC Consultations on Mali in
<http://usun.state.gov/briefing/statements/202714.htm>
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The internal factor was the Military coup organised by non-commissioned and mid-ranking
officers of the Malian armed forces led by Captain Amadou Sanogo that led to the overthrow of
the democratic government of President Amadou Toumani Tour and the suspension of
constitutional rule. The 2012 Malian coup d'tat began on 21 March, when mutinying Malian
soldiers, displeased with the management of the Tuareg rebellion, attacked several locations in
the capital Bamako, including the presidential palace, state television, and military barracks. The
soldiers, who said they had formed the National Committee for the Restoration of Democracy
and State,
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declared the following day that they had overthrown the government of Amadou
Toumani Tour, forcing him into hiding.

4.2 The external factor: Tuareg Rebellion

The external factor came from the North of Tuareg rebellion, the National Movement for the
Liberation on Azawad (MNLA), with Bila Ag Cherif as secretary-general of its political wing
and Mohamed Ag Najim as head of its military wing: a secular Tuareg separatist movement
fighting for an independent state of Azawad in northern Mali. Initially the ally of Ansar ed-Din
and the Movement for Unity and Jihad in West Africa (MUJAO), but now oppose Islamic
jihadist groups.
The current Tuareg rebellion against the government of Mali had its roots in the decades of
fundamental grievances felt by the Tuareg minority group. Historically, the Tuaregs were
nomadic Berber people who lived in the Sahel and Sahara regions of Mali, Niger, Algeria,
Burkina faso and Libya. They call the Tuareg homeland Azawad. Their fundamental grievance is

8
Afua Hirsch (22 March 2012). "Mali rebels claim to have ousted regime in coup". The Guardian (UK).
Retrieved 24 March 2012.
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their claim of decades of discrimination and exclusion from the political and economic processes
by successive Bamako-based governments.

The Tuaregs therefore took up arms against the Malian government on several occasions,
fighting for a separate state and the rights of the Tuareg minority. Between 1985 and 2009 the
government signed several peace deals and ceasefire agreements after every violent Tuareg
rebellion, without addressing on a long-term basis the fundamental problems of the
marginalisation and exclusion of the Tuareg minority. The promises by successive governments
of greater political autonomy and devolved rule for the Tuaregs in the north never materialised.

After the collapse of the Qaddafi regime in Libya in 2011 heavily armed Tuaregs and non-
Tuaregs who had been part of Qaddafis army returned to northern Mali with sophisticated
weaponry. Together with previous Tuareg rebel groups, they formed the MNLA in 2011 as the
political- military platform to continue their fight for self-rule. It was these heavily armed and
well-trained MNLA-led fighters that routed the government forces in March 2012 and declared
northern Mali the independent state of Azawad.

4.3 The external factor: Jihadis Groups

The Tuareg rebellions in the north have always been complicated by the link with and
involvement of Islamist jihadist groups and the threat they pose to Mali; its neighbours; and the
wider regions of North Africa, the Sahel and West Africa. The security and terror threats that
Mali faced led to it signing bilateral military and security agreements and forming a Joint
Counter-Terrorism Command between 2009 and 2010 with Niger, Algeria and Mauritania to
tackle Islamist extremism and terrorism in the region. As the crisis unfolded in Mali, Ansar ed-
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Din and Mujahidin expanded the Islamist jihadist rebellion beyond the Tuaregs by incorporating
other ethnic groups historically opposed to the Tuareg rebellion such as the Songhai and Bella
groups. Northern Mali therefore saw the emergence of multi-ethnic militant and extremist forces
motivated by Islamist jihadist fervour.

Even before the outbreak of the Malian crisis, northern Mali had become a breeding ground
and safe haven for diverse groups of jihadists and militants led by AQIM. These groups not only
exploited the fundamental grievances of the local population against the government of Mali and
its repressive military and security forces, but also organised sophisticated criminal enterprises
that involved drug and human trafficking, arms and cigarette smuggling, and the kidnapping of
Western nationals for ransom.

These criminal enterprises became valuable sources of funding and were profitable for all
stakeholders, including corrupt Malian government officials, state security agencies, local
leaders, separatist rebels and Islamist extremists. These Sahelian criminal enterprises and their
profitable economic and financial opportunities made jihadi insurgency a lucrative economic
activity. As such, economic opportunism became a motivation for the growing number of
jihadist groups in the region.

At the outbreak of the Malian crisis the country was already on the verge of implosion
because of the collapsed nature of the state; the effect of decades of bad governance and the
ineffective political and economic management of the state; and the role of the corrupt ruling and
governing elites in subverting state institutions to serve their vested interests and regime
survival, especially during the personalised rule of President Tour. Both the Tuaregs and the
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diverse Islamist groups were united in their fight against their common enemy, the government
of Mali.

5. Timeline of French Mali Intervention

On January 11, 2013, France launched military air strikes and ground operations against
insurgent targets in northern Mali after Islamist fightersfollowing months of stalemate
suddenly advanced toward the south and defeated Malian military forces in the town of Konna.
The United States is sharing information with French forces and is also considering providing
logistics and surveillance. The United Kingdom and other European states are also providing
support.

French President Franois Hollande has justified the intervention based on the Malian
governments request for assistance, portraying the intervention as necessary to prevent the
Malian capital from falling into terrorist hands, and additional French deployments in Bamako as
helping to protect some 6,000 French citizens. French troop reinforcements in Bamako may also
be aimed at deterring actors who might try to further destabilize or attack Malis interim
government.

French Foreign Minister Laurent Fabius stated on January 13 that the duration of French
operations was a question of weeks. At the same time, news reports have indicated that the
extremist insurgents are better trained and equipped than French forces anticipated. In addition,
given that the Malian military is internally divided, lacks the capacity to effectively project force,
has been implicated in human rights abuses, and is very small (totaling some 7,000 troops prior
to the defections and military defeats of the past year), it is uncertain whether Malian forces will
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be able to effectively follow up on French military strikes by securing and holding territory. In a
radio interview, Oumar Ould Hamaha, a Malian insurgent commander who has been associated
with all three main Islamist extremist groups in the north, threatened France with a trap which is
much more dangerous than Iraq, Afghanistan, or Somalia.

The French operations mark a major shift in the context of international responses to the
situation in Mali. Previously, efforts had focused on a French-backed proposal for a regional
military intervention to support Malian efforts to retake the north, on negotiations with some
armed groups in the north, and on prospects for forging a more legitimate, effective government
in Bamako. The proposed regional force, dubbed the African-led International Support Mission
in Mali (AFISMA), was authorized to assist in training the Malian security forces and to support
them in recovering and stabilizing northern territory, under U.N.

Security Council Resolution 2085 on December 20, 2012. However, a regional deployment
was widely seen as requiring many months to prepare, pending anticipated internationally
assisted training and restructuring of the Malian military, which was expected to lead operations
to retake the north. Serious questions have also been raised concerning regional troops military
capacity, commitment, and human rights records, as well as the potential cost and humanitarian
consequences of such an operation. AFISMA deployments are now being accelerated in the
context of French operations. News reports have estimated AFISMAs potential cost at $200
million-$500 million.

Prior to French intervention, regional and Western leaders had warned of a rising threat to
international security associated with an expansion of AQIMs influence and scope of operations
in Mali, a possible spread of violent extremist ideology, and state fragmentation. The main
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armed Islamist groups in the northAQIM, Ansar al Deen (or, Ansar al Dine, Defenders of the
Faith), and the Movement for Unity and Jihad in West Africa (MUJWA, a.k.a. MUJAO after its
French acronym)appear to coordinate their actions and share personnel. Reports of foreign
fighters from elsewhere in Africa and beyond have heightened concerns, as have reported links
between the extremists and transnational smuggling networks, including drug traffickers.

A U.N. report estimated the total number of core combatants of the armed groups in
northern Mali at around 3,000 adding that insurgents were actively recruiting and had
relatively sophisticated equipment obtained from Libya and from Malian stocks. Other reports
have estimated extremist forces at 4,000-6,000 or up to 15,000 combatants. Extremist groups
have imposed harsh behavioural and dress codes on local residents in the north and have carried
out amputations and executions, inspired by an extremely conservative interpretation of sharia
(Islamic law). They have also targeted historic and cultural sites, including UNESCO World
Heritage-designated ancient mosques and tombs; recruited child soldiers; and committed other
abuses. Malis security forces, who reportedly suffer from internal divisions and lack of capacity,
have also been implicated in serious abuses, including torture and disappearances.

6. French Intervention: Objectives and Missions

The French military intervention has been the most significant in bringing about a rapid and
decisive military end to the conflict in northern Mali. In justifying the intervention, President
Hollande stated that France had no alternative but to intervene and prevent the emergence of a
terrorist state that would have serious security repercussions for France and the West. The
collapse of the Malian state and the inability of the armed forces to defend the country and stop
the military advances of the separatist rebels and their Islamist allies, coupled with the failure of
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the deployment of troops from African countries, therefore forced France to act unilaterally, but
with the approval of the international community, including Russia, China and African regional
actors.

The legality of the French military invention was never in doubt, because France had a
historical obligation to respond to a request from the interim president of Mali for French support
and intervention to end the crisis, even though the interim president had no democratic mandate.
In addition, UN Security Council resolution 2085, which was facilitated by France, had
authorised the deployment of the ECOWAS-led AFISMA intervention force (UNSC, 2012b).By
all indications, the French intervention was a pre-emptive military strike against Islamist rebels
in Mali.

France had maintained a consistent position on the crisis in Mali and used its political
influence and leadership at the UN Security Council, the EU, the AU and ECOWAS to mobilise
international support to resolve the conflict. Throughout the crisis France supported military
intervention to prevent rebels and Islamists from taking over the whole of Mali, but preferred
African forces to do the fighting. The failure to deploy African troops in the face of the imminent
rebel and Islamist advance on Bamako forced France into action.

7. French Intervention: Military Strategy and Political Influences

France deployed a powerful military force in Mali, including a well-equipped ground force
of 4,000 soldiers and air power that easily pounded the separatist rebels and Islamist extremists
into hasty retreat. France was supported by hastily trained and heavily armed Malian soldiers, as
well as 6,000 ECOWAS led AFISMA troops. In addition, other key Western nations Britain,
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Belgium, Canada and the U.S. provided military, intelligence and logistical support. France has
indicated that it will reduce its troop levels by the end of March 2013 and, supported by the AU,
ECOWAS and the Malian government, has called on the UN to deploy a peacekeeping force to
replace French forces. By the end of January 2013 the military objectives of operation Serval8
had been achieved. Although the separatists had been defeated, the Islamists were on the run and
their terrorist infrastructure in the north had been destroyed, the military and security threats
posed by Islamist jihadists have not been eliminated.

President Hollandes decision to decisively intervene in Mali has had a positive impact on his
political fortunes and the image of France. For most of his first year in office Hollande has been
criticised as being too soft, overly consensual and not capable of decisive actions. As one media
analyst puts it, the president has suddenly become a new kind of leader (Schofield, 2013).
Once again, foreign military intervention has helped to bolster the image of a president whose
domestic political rating was in decline.

In addition, Frances international image has been enhanced by its leadership in militarily
taking on and defeating the separatist and Islamist rebels in Mali. Mali is seen as a crucial test
for the largely untested foreign policy approach of President Hollande, whose first year in office
has been embroiled in domestic issues. The intervention in Mali shows that France is not about
to end its long history of military interventions in Africa, often dictated by imperatives of
national security and strategic vested interests.

By the end of February 2013 the war in Mali had cost France 100 million, according the
French Defence Ministry. This no doubt will have serious domestic political repercussions if the
war drags on, in particular for the recession-ridden and debt-laden government of France
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domestically implementing austerity measures and public sector job cuts. The veracity of the
claim that France has no intention to stay in Mali will to a very large extent be determined by
the military and security situation on the ground, as this will potentially determine the scope,
duration and extent of the French intervention.

8. French Intervention: War against Terrorism

President Hollandes claim that France has no interest other than the goal of fighting against
terrorism is controversial because some analysts argue that the real motive for French
intervention in Mali is to protect French economic interests in the country and especially in
neighbouring Niger. The spill over of the conflict into Niger and the potential implosion of that
country would have a devastating impact on French economic interests there. The pre-emptive
military intervention in Mali is in effect a strategy to protect French economic and financial
interests in Niger, where France has significant economic and mining interests.

In economic and financial terms France is the largest exporter of electricity in the world, with
an estimated 3 billion annually in sales. The two main electricity generating companies, Areva
and EDF (electricit de france) operate the 59 nuclear plants in France. The French nuclear
power industry depend heavily on the uranium from its two uranium mines in Niger. These
mines are owned by a French-led consortium and operated by French interests.

Therefore, the security and stability of Niger is a vital national security interest to France. It
is reasonable to conjecture that the pre-emptive military intervention in Mali is in effect a foreign
economic policy strategy to protect and secure the French nuclear industry and Frances energy
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security, especially against the backdrop of the current economic recession and austerity in
France.

9. UN: The legality of the purpose: permissibility of military assistance to Mali to fight
terrorism

We have seen that external intervention by invitation is normally legal when the purpose of
the intervening State is not to settle an internal political strife in favour of the established
government, but to realize other objectives such as helping the requesting government in the
fight against terrorism. Such a purpose could of course raise important questions of legal
definition (what is terrorism?) and classification especially taking into consideration the risk of
a unilateral labelling of a rebel group as terrorists by the requesting and the intervening States
in order to legitimize intervention.

In the case of Mali nonetheless there was no doubt that at least two of the three Islamist
groups against whom France was intervening were terrorist groups. Both AQIM and, more
recently, the MUJAO have been placed by the UN Security Council and individual States
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on the
Al-Qaida sanctions list established and maintained by the Committee pursuant to resolutions
1267 (1999) and 1989 (2011). Things were initially more complicated concerning the third
Islamist group, Ansar Dine, which was not, at the time of the beginning of Operation Serval, on
the UN terrorists lists. However, the terrible practices applied to the civilian population of Mali
in the occupied northern territories during the months before the intervention (stoning,
amputations, floggings and other forms of corporal punishment, etc.) had been common place for
the three Islamist groups who claimed their will to strictly enforce Sharia Law in Mali.

9
See: Terrorist Designations by the US Department of State,
December 2012: http://www.state.gov/r/pa/prs/ps/2012/12/201660.htm.
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The delicate question was to decide if it was possible to consider these acts as terror in
order to assimilate the Ansar Dine movement with the two other Islamist groups, a question
which could certainly lead to uncharted waters as these penalties and corporal punishments also
apply in some States strictly enforcing Sharia Law. The UNSC helped avoid answering this
question: on March 20 the UNSC 1267/1989 al-Qaida Sanctions Committee placed Ansar Dine
in company with the two other terrorist groups operating in Mali providing thus full legitimacy
to the French anti-terrorist campaign.

10. The Role of the UN Security Council: Blessing Or Authorising?

The UNSC followed the Malian crisis very closely from the beginning, dedicating several
formal or informal meetings to it. It used the whole range of acts available in its toolbox
adopting up until now 4 Resolutions, 5 Presidential Statements and 3 Press Statements.The
UNSC was already very active during 2012, starting with a strong condemnation of the coup in
Mali in March 201260 and ending the year with the adoption of resolution 2085 on 20th
December 2012 which authorised the use of force by an African-led International Support
Mission in Mali (AFISMA) in order to carry out a series of tasks. It remained very active in 2013
culminating with the adoption of resolution 2100 on 25th April 2013, which transformed the
AFISMA into a UN led stabilising force (MINUSMA), to be deployed on 1st July 2013 at
earliest, authorising both MINUSMA and a parallel French intervention force to use all
necessary means to accomplish their tasks.

What is very interesting from an international law point of view is that, despite all this
presence and activity of the UNSC, the French military intervention in Mali took place from the
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start and till now (pending the future implementation of S/RES 2100) without a clear
authorisation by the Council. The UNSC was there, overseeing the events and welcoming the
swift action by the French forces, but did not rush to replace the unilateral legal basis of the
intervention (request of the Malian authorities) by a clear, multilateral use of force
mandate. This led to an interesting and original combination of legal justifications for the use of
force by foreign States in Mali, some of them acting on the basis of the consent of the Malian
authorities (with the informal praise of the UNSC) and others on the basis of UNSC
authorisation (with the applaud of the Malian government). From this point of view the foreign
military intervention in Mali was a unique blend of UNSC blessing and authorising.

11. The interpretation of UNSC Resolution 2085

Without ever clearly claiming that Operation Serval had been authorised by the
UNSC,France often stated that its intervention in Mali was in line with the Security
Council resolutions and had a legitimacy drawn from the United Nations resolutions.

In Article 9 of Resolution 2085 it is indeed rather clear that the UNSC only authorised the
use of force (all necessary measures) by the AFISMA in order to carry out several tasks
including:

(b) 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, including AQIM, MUJWA and associated extremist groups, while taking
appropriate measures to reduce the impact of military action upon the civilian population; []

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In several other paragraphs64 S/RES 2085 urges all UN member States, including interested
bilateral partners to provide coordinated assistance, expertise, training to both the Malian
forces and the AFISMA, to help the deployment of AFISMA and offer it any necessary
assistance in efforts to reduce the threat posed by terrorist organizations. Resolution 2085
does not, nonetheless, authorise the use of force by others than the AFISMA. Indeed, France did
not claim to act on the basis of an express UNSC authorisation and did not refer either tothe
(controversial) theory of presumed or implicit authorisation.
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This is interesting because France argued that its intervention was essential in order to
accomplish the objectives of the UNSC fixed in S/RES 2085 and previous resolutions.

Hours before the start of French airstrikes in Mali, 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 Mali. The UNSC published a Press Statement
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immediately afterwards in
which it 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 UNSC recalled in this statement the urgent need to counter the
increasing terrorist threat in Mali and, while asking for a rapid deployment of the AFISMA,
they also called 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.


10
O. Corten, The Law Against War, supra note 19, at 348-400.
11
SC/10878, 10/01/2013.
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Could this Press Statement give the impression 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 of Resolution 2085 in a way that authorizes not only AFISMA but also all
other member States to provide military assistance to the Malian Forces in order to counter the
terrorists, has apparently been adopted 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.

It is nonetheless impossible, from a legal point of view, to claim that a Press Statement by the
UNSC can amend a Chapter VII resolution, especially on such an important issue as the
delegation of the power to use force. It would certainly be better to interpret this UNSC Press
Statement as indicating that the Security Council accepts both the legitimacy of the imminent
French intervention and the soundness of the legal basis of military assistance on request. The
UNSC gives France its blessing for an intervention that is not authorised, but still legal (on the
basis of valid consent) and perfectly in line with the spirit of the existent UNSC
resolutions on Mali.

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Indeed, the context of the French intervention in Mali was not comparable to other situations
where the attitude of the UNSC clearly indicated that a military intervention by invitation could
not be accepted. For example, when the UNSC imposes an arms embargo on all sides (including
the government) in an internal strife, it would be absurd to pretend that while it is prohibited to
arm the government it could be possible to intervene militarily upon its invitation.

The case of Mali could also be used as a first precedent for the emergence of a customary
obligation binding upon States intervening on the basis of a valid invitation, to report their
actions to the Council. We do know that according to art.51 of the UN Charter: Measures taken
by Members in the exercise of this right of self-defense shall be immediately reported to the
Security Council. Although the ICJ considered in 1986 that this requirement was not part of
customary law, the universal ratification of the UN Charter since then and the tendency to over-
reporting observed since the ICJs warning on the legal consequences of a failure to report,
could indicate that today this requirement is also part of custom.

If States using force on the unilateral legal basis of self-defense thus have a requirement to
report to the Council, we could consider mutatis mutandis that States undertaking a
military intervention abroad on the legal basis of consent should also have such a requirement. In
its official letter to the UNSC of 11th January 2013 France promised that it will of course
continue to keep [the Council] informed, as appropriate and, indeed, acted in accordance with
this pledge throughout the crisis.

Last but not least, we could also make a parallel between self-defence and intervention by
invitation in relation with the last sentence of article 51 stating that unilateral measures shall
not in any way affect the authority and responsibility of the Security Council under the present
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Charter to take at any time such action as it deems necessary in order to maintain or restore
international peace and security. This is easier to establish as the UNSC has indeed, under
Chapter VII, the prerogative to intervene at any time taking necessary measures capable of
limiting not only the exercise of self-defence but also, a fortiori, the scale and conditions of
intervention by invitation. In the case of Mali the UNSC decided to intervene on 25th April 2013
with the adoption of resolution 2100.

12. Effects of the Conflict for Mali and France

As a result of the conflict, about 370,000 people fled their homes to the safer south of Mali
and another 140,000 have crossed the borders into Burkinafaso, Mauritania, and Niger during the
extremists' 10-month reign over Mali. Local media reported that most of those who stayed inside
Mali's borders ended up with family members in the capital or other major towns such as Segou
and Mopti. Mali is one of the poorest countries in the world, so the pressures of accommodating
displaced communities can stretch already fragile socio-economic conditions to the breaking
point. In some areas, public services have been shut down, schools are closed, there is no
drinking water and there is no electricity for the filtration system, and people have to fetch
unclean water from natural basins in the desert.

The conflict is threatening the country's food security because many farmers are among the
hundreds of thousands of people who have been displaced, and it seems that the next planting
season is in jeopardy. Many of the displaced farmers are reported to be in refugee camps or with
host families in Burkina Faso, Mauritania, or Niger.

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Many farmers lost everything because they are away from their places. They dont have
agricultural tools. They dont have basic seeds. And their animals are also at risk because there is
no availability of veterinary drugs and so on. This is also a major challenge for the displaced
households because animals represent years of savings.

12.1 Reprisal attacks against French citizens and targets

Despite domestic support for the French military intervention, there have been fears of
possible security risks and terrorist reprisals against French nationals, cities, and forces in Mali,
as well as targeted kidnappings of French citizens. Since the intervention attacks against French
citizens have increased, with 15 hostages being taken by Islamist extremists in the region, who
described the hostage-taking as retaliatory attacks prompted by the intervention. Between 2010
and 2012, even before the outbreak of the Malian crisis, there had been increasing targeted
kidnappings of French citizens by Islamist extremists in the region for ransom. The French
intervention has therefore heightened the security threats against the 30,000 French citizens in
West Africa.

The kidnapping of French tourists in Cameroon by the Ansaru Islamist group has further
raised fears about the targeted kidnapping of French citizen in West Africa. Ansaru paraded the
hostages on the Internet, threatening to cut their throats if the French and Nigerian governments
did not release imprisoned Islamist jihadists. By all indications there has been an increase in the
spate of attacks against French citizens since the start of the French intervention.

12.2 Increase domestic terrorist and Islamist extremist attacks

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Since the start of the French intervention there is increasing concern that some militant
extremists among Frances five million Muslim population, the majority of whom are from
North and West Africa, may be motivated by the intervention to seek revenge on French soil.
These fears are based on Frances long battle in the 1990s with Islamist extremists in France.
The recent terrorist attacks in the country only reinforced these concerns. These attacks include
the killing of three off-duty French soldiers and three Jewish children and a rabbi in Toulouse by
Mohamed Merah, a French citizen and terrorist trained in Pakistan with links to AQIM; the
firebombing of the Paris officers of Charlie Hebdo, a newspaper that published cartoons of the
Prophet Muhammad; and a grenade attack in September 2012 on a Jewish supermarket in a Paris
suburb.

In addition, four men were arrested for suspected links with Islamist extremists in West
Africa and detained for possible association with a terrorist enterprise. Furthermore, a french
national was arrested in Niger while trying to join Islamist rebel groups in Mali. The police also
uncovered bomb-making materials in a Paris suburb and alleged that the Islamist terror cell
involved was planning the biggest bomb attack on French soil since the mid-1990s. The French
government therefore warned of possible terrorist attacks in France due to its military
intervention in Mali.

12.3 Mission creep and domestic political reaction

The French intervention faces the risk of mission creep and the possibility of France being
drawn into a violent and protracted insurgency war with terrorists and Islamist jihadists. The
killing of French soldiers and French casualties or the body-bag syndrome will almost
inevitably provoke negative domestic political reaction that will force the withdrawal of French
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forces before they have completed the objective of defeating terrorists and Islamist jihadists in
the region. The concern is that the French intervention may potentially embroil France in the
wider volatile conflict and security threats in the Sahel and Sahara, making it difficult for France
to achieve a quick exit.

12.4 Neighbouring states drawn into the conflict

The Algerian gas complex hostage crisis and the kidnapping of a French family in Cameroon
have inevitably drawn neighbouring countries into the conflict because of the French
intervention in Mali, thus directly embroiling neighbouring states in the Malian crisis. The
attempt by the Algerian government to militarily free the hostages and the ensuing bloodbath
illustrate the complexity of the security threat to neighbouring states, which may negatively
affect France.

The spill over of the conflict in Mali and the French intervention have thus led to the
regionalisation of the crisis in Mali. Neighbouring countries are being reluctantly drawn into the
conflict in Mali in an attempt to prevent the spread of terrorism and global jihad in the region.

13. Conclusion

Based on the above analysis, the conflict in Mali and the French intervention have short- and
long-term implications for the maintenance of international peace and security in the years to
come. Military action alone will not end the crisis in Mali and the associated terrorist and
Islamist extremist problems in the Sahel region and West Africa, nor will it immediately lead to
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post-war peacebuilding and state reconstruction, especially when the French have indicated that
the intervention is not about post-war nation-building.

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14. References

Marjanovic, Marko (2011-04-04) Is Humanitarian War the Exception?, Mises Institute.

Jennifer M. Welsh. Humanitarian Intervention and International Relations. Ed. Jennifer M.
Welsh. New York: Oxford University Press, 2004.

Alton Frye. 'Humanitarian Intervention: Crafting a Workable Doctrine.' New York: Council on
Foreign Relations, 2000.

Marjanovic, Marko (2011-04-04) Is Humanitarian War the Exception?, Mises Institute.

Jennifer M. Welsh. Humanitarian Intervention and International Relations. Ed. Jennifer M.
Welsh. New York: Oxford University Press, 2004.

Alton Frye. 'Humanitarian Intervention: Crafting a Workable Doctrine.' New York: Council on
Foreign Relations, 2000.

Afua Hirsch (22 March 2012). "Mali rebels claim to have ousted regime in coup". The
Guardian (UK). Retrieved 24 March 2012.

Terrorist Designations by the US Department of State, December
2012: http://www.state.gov/r/pa/prs/ps/2012/12/201660.htm.

O. Corten, The Law Against War, supra note 19, 348-400.

SC/10878, 10/01/2013.