Mali, Legitimacy and Self-Determination by Seán Butler*

Operation Serval, the military intervention by France in Mali that began almost three weeks ago, appears to be close to an end after President Francois Hollande indicated this week that control of the military action would soon be given over to the ECOWAS-organised African-led International Support Mission to Mali (AFISMA). Uniquely for a military intervention, the operation has been met with no international protest and no challenge of its legality from any State.

This is not to say that the situation is legally cut and dry. A series of posts by Dr. Theodore Christakis and Dr.Karine Bannelier on EJIL Talk! (see here and here) offer the clearest analysis of the legal issues, namely that France’s three legal justifications are all problematic. Firstly, its claim of authorisation under Article 51 of the UN Charter (concerning the right of individual or collective self-defense) ignores the fact that this provision is intended for state on state violence, not actions by non-state terrorist organisations (only one of the three Islamist groups involved in the conflict – Al-Qaeda in the Islamic Maghreb – can even be considered an ‘external actor’). Secondly, its invocation of UN Security Council Resolution 2085 forgets that this only authorises the deployment of AFISMA, which was originally not expected to be ready until September or October. But it is the third justification, that of consent by the host government, that offers the most interesting questions.

There are two issues with the consent of the Malian government in this case. The first is that this is a government that seized power in a coup last March, and has consequently not been recognised by large swathes of the international community, who have furthermore been accused of participation in extrajudicial executions, torture and disappearances. The second issue is that, prior to French involvement, this ‘government’ was in control of only approximately one-third of the country’s territory, with the Islamist groups and breakaway groups such as the National Movement for the Liberation of Azawad controlling the remainder. In essence, therefore, it is questionable whether the administration that requested the intervention can be considered the de jure or even the de facto government.

The situation in Mali can therefore be seen as essentially a civil war, in which France (and by extension the international community) have chosen a side rather than remain neutral. Such a stance is inconsistent with the principle of self-determination of peoples, as outlined in Article 1(2) of the UN Charter (Article 2(7) is also relevant if acceptance of UNSC Resolution 2085 as justification for the intervention can be construed as UN involvement in the affair) as well as Common Article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.Interpretation in this regard also exposes an ambiguity in the current formulation of international law that has affected a number of recent situations: what constitutes a “legitimate” government.

Traditionally, the principle of sovereignty has meant the UN was indifferent to the processes by which governments changed. Regardless if a change in power occurred democratically or through a violent revolt, the UN treated states effectively as ‘black boxes’. Recognition by others decided in what manner the world was divided into states, and within that, control of territory was considered the primary criterion by which legitimacy could be measured. There was some politics involved in recognition (as seen by the 22-year gap between the Communist Party of China seizing power and being recognised in the UN as the legitimate representative of the Chinese people), but at the very least, the UN prided itself in taking a neutral stance in domestic power struggles. The organisation’s greatest failures of inaction, such as Rwanda and Srebrenica, were the result of this policy.

These failures, and the general context of the Cold War’s conclusion, led to more biased policies being used. In 1994, the UN authorised an intervention in Haiti to restore President Jean-Betrand Aristide’s government after he was ousted in a coup. In December 2010, the UN went a step forward when the organisation refused to recognise election results released by Cote d’Ivoire’s own Constitutional Council that announced that incumbent President Laurent Gbagbo had retained power. Instead, the UN recognised his opponent AlassaneOuattara as the winner, and the already-present peacekeeping force in the country, the UN Operation in Cote d’Ivoire, acted to help to insure this result. They protected Ouattara in the Golf Hotel in Abidjan when he was under siege by pro-Gbagbo forces, placed economic sanctions on Gbagbo and members of his regime, allegedly exclusively targeted pro-Gbagbo forces, and participated in the siege of the Presidential Palace that resulted in Gbagbo’s ousting.

Libya was a step further. Western powers discussed the Gaddafi regime’s legitimacy at length in Security Council meetings discussing the situation (see comments by the US representative here, the UK & German representatives here, and the US & Germany again here), while Resolution 1973, which authorised NATO’s no-fly zone, made a major contribution to swinging the war in the rebels’ favour. The criterion for loss of legitimacy here was the Responsibility to Protect doctrine, which in its simplest formulation declares that a state’s right to sovereignty is contingent on protecting its citizens from mass atrocities, with the international community having a secondary responsibility should the state fail to uphold this duty. Both during and after the conflict, major qualms were raised by non-Western members of the Security Council (most often by Russia and South Africa) about the fact that the UN was not permitted to either engage in or authorise regime change in these situations. This debate spilled over into the crisis in Syria, with the precedent of Libya being one of the primary reasons given by Russia and China for vetoing action in the situation. Strict interpretations of the Charter and the relevant Resolutions affirm this viewpoint.

The core of this contention is that while the international community has a duty to prevent atrocity crimes, the only group legally and technically competent to decide upon the legitimacy of a government are the citizens of that country. Of course, it is not easy to separate the commission of atrocities with the maintenance of power. The problem here is the lack of clarity about what “self-determination” entails – for example, is the ‘self-determined’ Malian government that one that would result from whomever won the conflict if no external interference occurred, or the one that would be elected democratically in a peaceful environment? Consequently, should the role of the international community be a strict policy of non-involvement, or interference so as to bring about a democratic outcome (and in the latter case, which side should it support)? The fallacy here may be that a policy of inaction is not a policy of neutrality – it is one that recognises that probabilistically the more powerful side will win. It is for this reason that state practice has begun to lean to the latter understanding of self-determination (due largely to the influence of pro-intervention Western powers), but we are far from consensus on the issue.

France’s involvement in Mali is likely to lead to the current government becoming the de facto authority over much of its territory, and consequently achieve recognition as the de jure and legitimate government, at least until an expected transition into democratic governance. By greenlighting the intervention, the UN has endorsed this result. In doing so, they have chosen to support what they perceive as the lesser of two evils for Mali and the region. As the UN grows in influence and each state’s ‘self-determined’ path becomes more connected with and dependent on the norms of the rest of the world, the decision of upon whom to confer legitimacy grows increasingly important, and thus the need for criteria and protocols grow more pressing. The ‘lesser of two evils’ may not be good enough anymore.
*Introducing Seán Butler:

Seán is a PhD candidate at the Faculty of Law, researching the ‘Responsibility to Protect’ doctrine in international law and evolving conceptions of sovereignty. He is a graduate of NUIG, and of the MBS Diplomacy and International Public Policy programme at UCC. He is working under the supervision of Prof Siobhán Mullally.