Self-Defense or Veiled Threat: A New Relationship between France and Mali

Matthew Twargoski April, 2023

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Françafrique, a simple term, often carries a lot of meaning. First used by President Félix Houphouët-Boigny of Côte d’Ivoire as France-Afrique to urge strong relations with France while seeking independence, the term has developed a pejorative connotation describing France’s sphere of influence amongst its former colonies, particularly its military interventions.[1] In 2012, Mali requested the U.N. Security Council provide peacekeepers after Islamist militants attacked Northern Mali.[2] In response to a subsequent request from the transitional Malian government, France conducted airstrikes against the militants and deployed troops in Mali.[3] France remained in Mali with the support of the Malian government until 2022, when relations soured and Mali demanded France withdraw.[4] In August 2022, the French Army announced its final withdrawal from Mali.[5]

Following the departure of French troops, Mali has accused France of supplying arms to rebel groups and flying military jets through Malian airspace.[6] These alleged actions prompted Malian foreign minister Abdoulaye Diop to say Mali would “enforce its right to self-defense” if France continued to engage in such conduct.[7] Foreign minister Diop’s statement raises questions about self-defense under international law. Does Mali have a valid claim? Is Mali’s proposal an accepted form of self-defense?

Analyzing Mali’s Claims

Mali likely does not have a valid self-defense claim. Under Article 51 of the U.N. Charter, States are permitted to engage in acts of self-defense “if an armed attack occurs . . . until the Security Council has taken the measures necessary to maintain international peace and security.”[8] This definition of self-defense naturally asks: what constitutes an armed attack?

In Nicaragua v. United States, the International Court of Justice (“ICJ”) examined what level of force is necessary to be considered an armed attack. In that case, Nicaragua alleged the United States violated international law by supplying Nicaraguan rebel groups, laying mines in Nicaraguan harbors, and bombing Nicaraguan facilities.[9] The United States claimed its actions were permissible under the doctrine of collective self-defense; the United States primarily cited allegations that Nicaragua armed rebel groups in El Salvador.[10] The ICJ characterized “armed attacks” as acts of armed force by regular or irregular forces across international borders.[11] Although supplying “weapons or logistical support” to rebel groups could be considered an intervention, the ICJ held it was not considered an “armed attack” giving rise to the right of self-defense.[12] Acts falling short of armed attacks only entitled the aggrieved nation to take “proportionate counter-measures.”[13] The ICJ, therefore, found the United States’s activities in Nicaragua constituted an unlawful use of force and intervention because they were without justification.[14]

Here, Mali invoked its right to self-defense when it alleged France aided rebel groups.[15] This argument runs into two issues. First, France has denied supporting rebel groups.[16] Further, Mali’s assertion is unlikely, given that France’s intervention in Mali was aimed at defeating those rebels and ensuring Northern Mali remained under the control of the Malian government.[17] Second, even if Mali’s accusations were proven true, they would not rise to the level of an armed attack. In the Nicaragua case, the ICJ determined arming rebels, while an intervention, was not an armed attack that would justify self-defense.[18] This precedent is restrictive for Mali. Thus, it is unlikely Mali could justify the use of force against France under the doctrine of self-defense, even if France did supply these rebel groups.

A violation of airspace such as the one alleged by Mali does not give rise to a self-defense claim. The Chicago Convention on International Civil Aviation states, “every State has complete and exclusive sovereignty over the airspace above its territory.”[19] Furthermore, Article 3 of the Convention states, “[n]o state aircraft . . . shall fly over the territory of another State . . . without authorization by special agreement,” with state aircraft including “military” aircraft.[20] Based on the Chicago Convention and Nicaragua, Mali appears to have a valid claim of a violation of its sovereignty if French military jets flew over the country without its authorization.[21] However, a violation of a State’s sovereignty does not necessarily rise to the level of an armed attack. It has been generally accepted that use of force against military aircraft violating a State’s airspace is permitted when the aircraft is on a definite and deliberate mission but not when the violation was unintended.[22] Here, it is unclear whether French jets have entered Malian airspace at all, much less deliberately. Even if French jets have flown over Mali, there is no evidence they engaged in armed attacks, thus prohibiting a claim of self-defense.[23]

Proportional Response

Mali’s proposed course of action violates international law because it would not be a proportional response.[24] The Caroline test states using force requires the act to be necessary and proportional.[25] Although the definition of proportionality is generally vague, it is often associated with whether a State has a right to use military force concerning self-defense or whether a response to an attack is at the same level of force based on the equality of the response to the provocation.[26] An example of a proportional response occurred during the Gulf War. Coalition forces determined aerial bombardments of Iraqi forces and infrastructure was necessary to remove Iraqi forces from Kuwait, yet this necessity needed to be balanced with limiting civilian impact.[27] Ignoring certain targets to limit destruction despite their military value represents a proportional response.[28]

In this case, Mali is threatening to use force against French jets flying over its airspace. While these alleged actions might constitute a violation of Mali’s sovereignty, it is not proportional to resort to violence in response to a nonviolent act.[29] Again, there is no evidence that French jets entered Malian airspace with a definite and deliberate military mission, which would permit the use of force.[30] Rather than shoot down French jets or strike their operations elsewhere in the Sahel, in accordance with international custom, Mali could demand the French fighters leave and escort them outside Malian airspace or order them to land at a designated airfield.[31] Mali could also bring an action before the ICJ, similar to Nicaragua, for a violation of customary international law.[32] The principle of proportionality does not completely restrict Mali’s options; it prevents States in Mali’s situation from inappropriately initiating hostilities.[33]

Conclusion

Foreign minister Diop is correct Mali has a right to self-defense, yet his statement that Mali can invoke self-defense against this alleged French activity is not supported by international law. Mali has not offered any proof France has conducted an armed attack, a requirement to invoke self-defense. Even if French military jets have violated Malian airspace as alleged, these acts do not allow Mali to raise a claim of self-defense. Additionally, Mali’s proposed actions would be a neither necessary nor proportional response. Self-defense is a foundational right of international law, yet it is not designed to be an excuse for force. Its invocation implies that a State has been unlawfully subjected to an armed attack by another State; to use it outside of such contexts diminishes its formal and symbolic importance in international law. In a time of increased military activity worldwide, States should be careful to not introduce self-defense in inapplicable situations.

  1. See generally François-Xavier Verschave, La Françafrique: Le plus long scandale de la République [Françafrique: the Republic’s Longest Scandal] (1998) (criticizing French policy towards its former colonies in Africa). ↑

  2. S.C. Res. 2085, at 2 (Dec. 20, 2012). ↑

  3. See Overview of S.C. Meeting Records, at 6, UN Doc. S/PV.6905 (Jan. 22, 2013) (noting the Malian President’s appeal for assistance to France); see also S.C. Res. 2085, ¶ 18 (Apr. 25, 2013) (authorizing France to intervene in support of the international mission in Mali). ↑

  4. Mali: La junte au pouvoir demande à la France le retrait de ses troupes « sans délai » [Mali: The Ruling Junta Demands France Remove Its Troops “Without Delay”] , France24 (Feb. 18, 2022), https://www.france24.com/fr/afrique/20220218-mali-la-junte-au-pouvoir-demande-à-la-france-le-retrait-des-troupes-sans-délai. ↑

  5. Mali : Les derniers soldats français de l’opération « Barkhane» ont quitté le pays [Mali: The Last French Soldiers from Operation “ Barkhane” Have Left the Country], Le Monde (Aug. 15, 2022) https://www.lemonde.fr/afrique/article/2022/08/15/mali-les-derniers-soldats-francais-de-l-operation-barkhane-ont-quitte-le-pays_6138101_3212.html. ↑

  6. À l’ONU, le Mali renouvelle ses accusations contre la France [At the UN, Mali Renews Its Accusations Against France], France24 (Oct. 19, 2022) https://www.france24.com/fr/afrique/20221019-au-conseil-de-sécurité-de-l-onu-le-mali-renouvelle-ses-accusations-contre-la-france. ↑

  7. Id. ↑

  8. U.N. Charter art. 51. ↑

  9. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 15 (June 27). ↑

  10. Id. ¶¶ 48, 126-28. ↑

  11. Id. ¶ 195. ↑

  12. Id. ¶¶ 195, 292. ↑

  13. See id. ¶ 249; John Lawrence Hargrove, The Nicaragua Judgment and the Future of the Law of Force and Self-Defense, 81 Am. J. Int’l L 135, 138 (1987). ↑

  14. See Nicar. v. U.S., 1986 I.C.J. Rep. 14, ¶¶ 195, 252, 292. ↑

  15. Mali Renews Its Accusations Against France, supra note 6. ↑

  16. France au Mali [French Embassy in Mali] (@FranceauMali), Twitter (Aug. 17, 2022, 3:30 PM), https://twitter.com/FranceauMali/status/1559986029456756736?cxt=HHwWgMC8xerBl6YrAAAA. ↑

  17. See L’Accord de Défense Entre le Mali et la France [Defense Accord between Mali and France] art. 2, Fr.-Mali, July 16, 2014, Fr. Nat’l Assembly, https://www.assemblee-nationale.fr/14/pdf/projets/pl3498-ai.pdf. ↑

  18. Nicar. v. U.S., 1986 I.C.J. Rep. 14, ¶¶ 195, 252, 292. ↑

  19. Convention on International Civil Aviation art. 1, Dec. 7, 1944, 61 Stat. 1180, 15 U.N.T.S. 295. ↑

  20. Id. art. 3. ↑

  21. See Michel Bourbonniere & Louis Haeck, Military Aircraft and International Law: Chicago Opus 3, 66 J. Air L. & Com. 886, 894-895 (2001); Nicar. v. U.S., 1986 I.C.J. 14, ¶¶ 251, 292. ↑

  22. See John T. Phelps, Aerial Intrusions by Civil and Military Aircraft in Time of Peace, 107 Mil. L. Rev. 255, 291-92 (1985). ↑

  23. Hargrove, supra note 13, at 137-38. ↑

  24. See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 249 (June 27); see also Hargrove, supra note 13, at 138 (interpreting Nicaragua as permitting states subjected to acts falling short of an armed attack to engage in proportional countermeasures). ↑

  25. See Hunter Miller, British-American Diplomacy: The Caroline Case, in 4 Treaties and Other International Acts of the United States of America 80-121 (Miller ed., 1934). ↑

  26. Thomas M. Franck, On Proportionality of Countermeasures in International Law, 102 Am. J. Int’l L. 715, 721 (2008). ↑

  27. Judith Gail Gardam, Proportionality and Use of Force in International Law, 87 Am. J. Int’l. L 391, 404 (1993). ↑

  28. Id. at 404-05. ↑

  29. See Franck, supra note 26, at 721-22 (discussing the Congo case and the proportionality of military action when an attack did not occur). ↑

  30. Phelps, supra note 22, at 291-92. ↑

  31. See id. at 292 (noting “it is only when the aircraft refuses to obey instructions or takes some form of hostile action that the use of force is permissible.”) ↑

  32. See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 15 (June 27). ↑

  33. Without specifically analyzing the legality of the United States’s conduct, the complained-of airspace violation here is distinguishable for the recent high-profile downing of a Chinese surveillance balloon over U.S. airspace. See Phil Stewart, U.S. Fighter Jet Shoots Down Suspected Chinese Spy Balloon, Reuters (Feb. 6, 2023), https://www.reuters.com/world/us/biden-says-us-is-going-take-care-of-chinese-balloon-2023-02-04/. There, it could be argued that the Chinese aircraft was engaged in a definite and deliberate military mission, justifying the use of force. See Phelps, supra note 22, at 291-92. Further, downing an unmanned aircraft, such as the Chinese balloon, does not result in the loss of life the downing a manned aircraft entails. Even outside of definite and deliberate military missions, given the comparatively lesser damage caused by downing unmanned aircraft, there is an arguably lower threshold for the use of force as a proportional countermeasure against unmanned aircraft. See id. at 292. ↑

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