In our last discourse, we started by considering the question of the lawfulness of French intervention in Mali vis-à-vis the provisions of international law. We already shed some light on the first argument by France that its intervention was, inter alia, informed by the invitation given by the Malian government. You can read that up here.

This week, let us look at the other justification given by France for its military intervention in Mali, its former colony. You remember that the other arguments put forward by the French government are Resolution 2085 by the Security Council and the controversial right of self-defence under the UN Charter. Let us take a closer look at these other two arguments to see if it can pass the acid test under international law.
Concerning Resolution 2085, France’s position is that they acted under the authorisation of the Security Council. 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.”[1] Ordinarily, it would have been legitimate for France to invoke Resolution 2085 as a justification for its military intervention in Mali; however when one considers the circumstances in this case, this argument cannot stand. This is because for such argument to stand, the military intervention, “Operation Serval” must have been under African command. If the AU or ECOWAS[2] had authorised any of the African states such as Nigeria for instance to command and control the military operation, France’s intervention would have been justifiable on this ground.
It is also important to state here that although the invitation by the Malian government to France for military intervention amounts to consent of the Malian authorities, this consent is not sufficient to constitute compliance with Resolution 2085. As earlier mentioned, the requirement under international law is that Africans must be in command and control of such military operation, not only participants as is the case with the involvement of the Nigerian army. Therefore, Resolution 2085 cannot stand in the absence of this requirement.
Having established the position of international law on Resolution 2085 and its supposed authorisation of the French intervention in Mali, we can now move to the typically controversial argument of the exercise of right of self-defence under the UN Charter. Time and again, we have looked at the principle of self-defence in international law, only that this time around, the facts are not the same.
Without mincing words, the argument of self-defense made by the French government also fails the acid test. For the right of self-defense to be exercisable by any state under international law, there are several conditions that must be fulfilled. A closer look at the case of Mali reveals that there was no armed attack. Also, does a state’s right to exercise self-defense not suspended once measures have been taken by the Security Council 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. This means that the armed attack must be led by a state, not a non-state actor.[3] The armed attacks against Mali have not been orchestrated by state actors but by a group of non-state actors.[4]
In the same vein, the right of self-defense ceases immediately the Security Council has taken measures to maintain peace and security. This the Security Council did when the United Nations security organ adopted Resolution 2085. It would be recalled that on December 20th, 2012, the Security Council took a valid decision to act pursuant to its powers under Chapter VII by adopting Resolution 2085. Upon this adoption, the right of self-defense is automatically suspended. Therefore, there was no right of self-defence to be invoked by France as Resolution 2085 was already in force.
Before we conclude this discourse, it is perhaps important that a certain observation be made at this point. The French government did make the assertion that not a single member of the UN Security Council has contested the applicability of article 51 in relation with “Operation Serval” in Mali. Is it safe therefore to conclude that the case of French intervention in Mali is a significant shift in customary practice in relation to the exercise of self-defense under Article 51 of the UN Charter? That conclusion should not be drawn in a hurry, if we still care about the need for some consistency in international law in the maintenance of international peace and security.
We must be careful not to extend the already controversial principle of “self-defense” just to accommodate the Malian case. After all, Mali is a sovereign state, and all sates have sovereign rights over their territory. The Malian government can legitimately authorise security agents in the state to suppress acts of terrorism or armed insurrection or unlawful secession.[5] On the other hand, where the Malian government is overwhelmed by the threats in its territory, it can seek for external intervention through the principle of consent by way of invitation as it already did. Trying to extend the notion of “self-defense” under article 51 to do so may just be an invitation to uncertainty in international law – a proven recipe for threats to international peace and security.

[1] The use of armed force by a state against the territory of another state can be justified either by virtue of an authorisation given by the UN Security Council acting under Chapter VII of the UN Charter (called “collective security system” or self-defense in case of an individual state).
[2] AU and ECOWAS are acronyms of African Union, and the Economic Community of West African States, respectively.
[3]However controversial this position might have remained, the International Court of Justice has recognised the condition of armed attack 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 (DRC v. Uganda), (§§146-147 (2005) recognises this condition of armed attack by a state actor.
[4] As mentioned in the previous post, these non-state perpetrators are Al-Qaeda in the Islamic Mahgreb, the Movement for Oneness and Jihad in West Africa and the Ansar Dine movement.
[5] Of course, such suppression of violence and threat to national security and cohesion must be done within the limits of human rights and/or jus in bello rules.

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Nigerian Law Today

NLT’s mission is to take legal-content writing to the next level in Nigeria by leveraging legal expertise and technology. We publish fresh, original, and insightful articles on areas of law we cover.

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