The French intervention in Mali and Additional Protocol II
Mali is a party to the 1977 Additional Protocol relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II). Katharine already considered a while back that the conflict(s) between the government and the rebels appear(s) to be covered by Additional Protocol II as the criteria laid down in Article 1 of Additional Protocol II are fulfilled. The difference in the scope of application of Additional Protocol II and that of Common Article 3 is not just that the armed group needs to exercise control over territory, but also that the fighting needs to take place between “armed forces and dissident armed forces or other organized armed groups”. Whereas Common Article 3 applies to all situations where two armed entities are engaged in fighting of certain intensity, i.e. also when this is between armed groups only, Additional Protocol II requires the involvement of the armed forces of the territorial State, i.e. the government forces.
Evidently, the government of Mali is engaged in fighting with the opposition also and Additional Protocol II can thus apply to this fighting. However, the bulk of the current force against the Mali Islamist rebels appears to be used by France. In the wording of UN Security Council Resolution 2085, France “support[s] the Malian authorities in recovering the areas in the north of its territory under the control of terrorist, extremist and armed groups”.
When foreign States support a government in its fight against armed opposition groups, an armed conflict (assuming that the lower threshold has been passed) remains non-international in character. However, whether the fighting between the foreign State and the armed group – as part of such a non-international armed conflict – is covered by Common Article 3 only or, when the criteria have been met, also by Additional Protocol II, is subject to discussion. Academics disagree as to the application of Additional Protocol II to such foreign forces. For example, in relation to the International Security Assistance Force (ISAF) in Afghanistan, scholars have taken opposing views on the matter.
Hence, there is no straightforward answer whether the actions taken by France, itself a party to Additional Protocol II, are covered by this Protocol. This post does not aim to provide an answer to this question, but merely to give an overview of the views of (some of) the scholars who have addressed this issue.
First, some of those who belief that Additional Protocol II applies to foreign forces intervening on behalf of the territorial State (where the Protocol applies), will be listed. These arguments, which mostly relate to ISAF, would also apply to the French intervention. Afterwards, the arguments raised against application of Additional Protocol II will be addressed.
Additional Protocol II applies to foreign forces
The Rule of Law in Armed Conflicts (RULAC) Project of the Geneva Academy of IHL and Human Rights considers that Additional Protocol II “is also applicable to each ISAF member state that has adhered to the Protocol and which is a party to the conflict with the Taliban. The customary provisions of the Protocol are binding on all states.” It explains that
“[t]his is because 1977 Additional Protocol II applies to ‘all armed conflicts’ which are not covered by Article 1 of 1977 Additional Protocol I and which take place ‘in the territory of’ a State Party ‘between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.’ This applies the provisions of the Protocol to the armed conflict in question as a whole, not merely to the armed forces of the state on whose territory the conflict is ongoing as well as the dissident armed forces or other organized armed groups fighting against those government armed forces. Thus, it is the view of the RULAC Project that the Protocol applies to all parties to such a conflict who have adhered to 1977 Additional Protocol II.”
Annyssa Bellal, Gilles Giacca, and Stuart Casey-Maslen, all three working at the Geneva Academy, take a bit more nuanced approach in their article on armed non-state actors in Afghanistan in the International Review of the Red Cross, but come to the same conclusion:
A narrow reading of Article 1 would apply the Protocol’s provisions only to the Afghan government, as the scope of the Protocol is limited to any conflict ‘which takes place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups’. On the basis of this wording, the foreign forces are not those of the territorial state (Afghanistan) in which the conflict is taking place, unless it can be proved that the intervening states are agents of the state of Afghanistan. This would imply that the foreign forces are ‘placed at the disposal’ of the host state, but this does not appear to be the case in Afghanistan.
A broader interpretation – one that, in the view of the present authors, better fits with the language employed, as well as with basic logic – is that the Protocol applies to each and every party to any armed conflict that meets the criteria of Article 1(1). Interpreting the material scope of application in line with the object and purpose of humanitarian law would brush away the purported territorial requirement referred to above. Thus, instead being read restrictively so as to apply only to the territorial state and its rebels, Article 1(1) should encompass the conduct of any contracting party to Additional Protocol II intervening in support of the territorial state by the mere fact of participating in a conflict that takes place in ‘the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups’.
Typically, commentators simply dismiss the possibility of any foreign military forces being expressly bound by the provisions of the Protocol in their operations in Afghanistan, without any attempt to argue their case (and without any express exclusion being included in the text of the Protocol – its application is limited to the armed conflict that meets certain criteria and not merely the parties included in those criteria). Let us assume for a moment that they are correct. In the absence of agreement on the content of customary law, what treaty law would apply in the event that Afghan forces are fighting side by side with foreign military personnel? Do the Afghan forces apply Additional Protocol II but not the foreign military? What are the Taliban supposed to do? Try to distinguish between Afghan forces and foreign military forces in their conduct of hostilities and adapt their methods of warfare accordingly? Are they relieved of their Additional Protocol II obligations when fighting foreign military forces?
At the very least, the forces of states that are also party to Additional Protocol II should be considered formally bound by its provisions in their military operations in Afghanistan, as they are engaged in the armed conflict that pits Afghanistan government forces against at least one armed group meeting the Protocol’s criteria for application. Otherwise this could lead to interoperability concerns, as well as a possible lack of clarity in operations between the different parties to the conflict.
Only a few such states are not party to the Protocol […]. But there is even an argument that, since all foreign states are ostensibly present to support the Government of Afghanistan – at the very least as a matter of policy, if not law – they should also expressly apply all of the provisions of the Protocol. Indeed, in the existing agreement between ISAF and the Afghan authorities it is stipulated that, ‘ISAF Forces will respect the laws and culture of Afghanistan’.
(pp 60-61, footnotes omitted)
Additional Protocol II is not applicable
Now the arguments against the application of Additional Protocol II to fighting between foreign forces and an armed groups that takes place during an armed conflict that is covered by Additional Protocol II.
Before Afghanistan became a party to Additional Protocol II (in 2009), David Turns wrote:
“Quite apart from the fact that Afghanistan is not a high contracting party to Additional Protocol II, it is doubtful, in any case,whether the conditions for the applicability of the Protocol would be met by the present stability operations in Afghanistan. Article 1(1) refers only to the armed forces of the high contracting party on its own territory, which would not cover ISAF; and while the Taliban undoubtedly does have control of some territory and carries out “sustained and concerted military operations,” it is most unlikely that it could be considered to be “under responsible command” and it has given no sign of willingness to implement the Protocol.”
Soon after Afghanistan acceded to both the 1977 Additional Protocols, Dapo Akande considered the application of Additional Protocol II to the Afghan conflict on EJILTalk:
Given that much, if not most of the fighting against the Taleban is undertaken not by the Afghan armed forces but by the NATO led International Security Assistance Force (ISAF), APII will not apply to much of the conflict in that country. […] If, as is common, the country in which the conflict takes place invites another country or countries to fight against rebels, APII will not govern the conflict between invited country and the rebels. This will be the case even if the invited country is itself party to AP II as that treaty applies only a conflict “which take[s] place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups . . .”
Moreover, he argues that on the basis of the ILC’s Articles on State Responsibility, it is very unlikely that the territorial State could be held responsible for violations of Additional Protocol II that are committed by the State that has been invited to help in combating the opposition.
Aoife O’Donoghue also considers that Additional Protocol II does not apply to intervening States, but has a different view on the responsibility of the territorial State. She further considers that joint operations (of the government forces of the territorial State and the intervening State) could be covered by Additional Protocol II:
The Additional Protocols apply between the state and rebel forces, therefore it will not directly apply to NATO forces; however the Afghan government may be held responsible for actions undertaken by NATO, as it is under their auspices that NATO forces are in Afghanistan. It could also apply to operations undertaken by NATO forces together with domestic Afghan forces.
In her contribution to Elizabeth Wilmshurst’s International Law and the Classification of Conflicts, Francoise Hampson raised many questions with respect to the application of Additional Protocol II on ISAF, but in the end concluded that
“[t]he significance of the possible applicability of Additional Protocol II is not great […] because the wording of the Protocol – which is artificially not applicable to non-international armed conflicts in the territory of another State not a party to the conflict – probably does not affect any of the members of ISAF, whether or not parties to the Protocol.”
Whether France is bound by Additional Protocol II is thus debatable. Given that the French intervention mainly consists of air strikes, it is likely that it will – as a matter of policy – apply the targeting rules as laid down in Additional Protocol I (like ISAF has also done in Afghanistan). When French ground forces will engage in the fighting, Additional Protocol II would grant more protection than only Common Article 3, but naturally, there is also customary IHL.