MALI, FRANCE’S OPERATION SERVAL (January 2013) A. GENERAL FACTUAL BACKGROUND CON

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MALI, FRANCE’S OPERATION SERVAL (January 2013)
A. GENERAL FACTUAL BACKGROUND CONCERNING THE SITUATION IN MALI FROM MARCH 2012 UNTIL JULY 2013
[main source: Northern Mali Conflict, Wikipedia, https://en.wikipedia.org/wiki/Northern_Mali_conflict#U.N._Peacekeeping_Force]
On 22 March 2012, President Amadou Toumani Touré was ousted in a coup d’état over his handling of the crisis, a month before a presidential election was to have taken place. […]. As a consequence of the instability following the coup, Mali’s three largest northern cities—Kidal, Gao and Timbuktu—were overrun on three consecutive days [by the National Movement for the Liberation of Azawad (MNLA), an organization fighting to make this area of Mali an independent homeland for the Tuareg people]. On 5 April 2012, after the capture of Douentza, the MNLA said that it had accomplished its goals and called off its offensive. The following day, it proclaimed the independence of northern Mali from the rest of the country, renaming it Azawad.
The MNLA were initially backed by the Islamist group Ansar Dine. After the Malian military was driven from northern Mali, Ansar Dine and a number of smaller Islamist groups began imposing strict Sharia Law. The MNLA and Islamists struggled to reconcile their conflicting visions for an intended new state. Afterwards, the MNLA began fighting against Ansar Dine and other Islamist groups, including Movement for Oneness and Jihad in West Africa (MOJWA/MUJAO), a splinter group of Al-Qaeda in the Islamic Maghreb. By 17 July 2012, the MNLA had lost control of most of northern Mali’s cities to the Islamists.
The [transitional] government of Mali [established in August 2013] asked for foreign military help to re-take the north. On 11 January 2013, the French military began operations against the Islamists. [Chad also sent troops to help the Malian government and forces] from other African Union states [acting under the “African-led International Support Mission in Mali” (AFISMA)] were deployed shortly after [S/RES/2085 (2012)]. By 8 February, the Islamist-held territory had been re-taken by the Malian military, with help from the international coalition. [On 1 July 2013, the AFISMA was replaced by an UN-led mission, the “United Nations Multidimensional Integrated Stabilization Missions in Mali” (MINUSMA), S/RES/2100 (2013)].
B. ATTACKS DURING FRENCH OFFENSIVE
[Source: High Level Military Group, Our Military Forces’ Struggle Against Lawless, Media Savvy Terrorist Adversaries, A Comparative Study (2nd Ed, February 2016) pages 71-74, http://www.high-level-military-group.org/pdf/hlmg-lawless-media-savvy-terrorist-adversaries.pdf ]
“[…] On 10 February [2013], 10-15 terrorists were barricaded in the Gao police station. The force commander (COMFOR) sent two armed columns, one to help the Malians destroy the resistance and protect journalists, the other to protect the hotel and evacuate those journalists who wanted to. A helicopter armed with Hot missiles was available to destroy the police station, but the force commander judged that using it in an urban area was too great a risk for civilians. Instead, he resorted to 30 mm shells.
[…]
Fighter-bombers were to avoid shooting where there was a risk of collateral damage. On January 11 in Konna, a Mirage used a delayed-fuse bomb to minimize collateral damage. On January 17 in Diabaly, a Mirage descended to shoot with its cannon – as opposed to dropping a bomb – to avoid collateral damage.
[…]
As a result, on several occasions, strikes were refused or aborted.
On January 16 in Konna, a Mirage aborted its bombing run due to the imbrications of French and jihadist forces.
On 26 January, a Mirage refused to drop its bombs in Gao, as a result of civilians being present.
On 9 February in Kaoussa, a Mirage declined to strike three suspect vehicles in an inhabited area because the pilot was not sure the individuals were aggressors as the presence of arms had not been confirmed. Instead, three helicopters flushed out the passengers and ascertained the presence of weapons. Once this was confirmed, the two vehicles which were armed were destroyed after the COMFOR’s authorization.
There were exceptions:
In non-urban areas (desert in the high North), ROE [Rules of Engagement] could be less strict. In the Adrar des Ifoghas, the whole brigade was, for a specific duration, given a blanket authorization to attack any element belonging to armed groups. On 25 February in the Ametettaï valley (high North), the commanders of the two GTIA [joint tactical groups (from the French “Groupements tactiques interarmes)] received an exceptional authorization: a complete delegation of authorization to fire by any means from the COMFOR. As the latter put it, “the absence of population and thus of risk of collateral damage, and the need to destroy a mobile enemy, led me to take this decision.” […]”
C. LEGAL CONSIDERATIONS SURROUNDING THE CONDUCT OF HOSTILITIES ON THE PART OF FRANCE
[Source: Claire Landais, “Entre l’Application du Droit et les Hostilités, Cadre Légal et Règles d’Engagement”, 38th Round Table on Current Issues of International Humanitarian Law, 3–5 September 2015]
The strategists in the French army’s general staff drafted rules of engagement (ROE). With the help of their legal advisers, the general staff defined the conditions for planning and carrying out strikes against certain targets, such as command centres, munitions depots and the leaders of armed groups. In all of these operations, the legal objective was to make sure that every aspect of these operations complied with the principles of international humanitarian law (IHL), e.g. with regard to the distinction between military objectives and civilian objects and the principles of proportionality, military necessity and humanity.
[…]
In my view, operational personnel should not regard IHL as burdensome; on the contrary, they may well find it beneficial.
1.2. Complying with and relying on international humanitarian law: A constant requirement
Maintaining the legitimacy of our actions
The freedom that politicians and military staff have to act depends on their legitimacy. To ensure legitimacy, an operation must appear fair and be in line with our international obligations and universal ideals.
If that legitimacy exists, regardless of any moral or ethical questions that may arise, we can continue to enjoy the support of our fellow citizens and mobilize our allies.
We need to adopt an attitude whereby, to enjoy legitimacy, we must often restrict our actions more than official texts require us to, particularly in order to protect civilians and sensitive sites within our theatre of operations.
Any excessive or non-compliant use of force, whether by French troops or their allies, could undermine the legitimacy of an operation and limit the fruits of our successes in time and space. This means that all personnel, from the highest to the lowest, must have the right training so that they understand and follow the rules of engagement. Soldiers faced with a complex situation in a given theatre must know exactly what limits apply to their use of force. Naturally, these rules must apply to all aspects of operations, not just the use of lethal force.
The essential role played by legal advisers
Our legal advisers must ensure that personnel have a good understanding of the ROE and must provide basic or additional training to deployed troops. […] Our military planners have clear rules governing the use of lethal force, only allowing its use against personnel taking a direct part in hostilities or belonging to organized armed groups, such as AQMI and MUJAO in Mali.
[…]
Personnel must be extremely careful, not only for obvious ethical reasons but also, and I must stress this again, to ensure legitimacy. That is why combat units must always use only the amount of force strictly necessary. That often means minimal force, although the use of lethal force is of course permitted.
[…]
With respect to what happened in Mali […] we had to adapt our ROE three times to the situation in the field:
– The first set of rules, which corresponded to the high-intensity phase of the conflict, were extremely vigorous: we were faced with an enemy that was determined, well organized, well equipped and, most importantly, easily identifiable.
– After the battle in the Adrar des Ifoghas and the destruction of the armed groups’ last sanctuary, the ROE were changed so as to restrict air operations, notably to prevent collateral damage.
– A final set of ROE for the low-intensity phase of the conflict was put in place in late 2013 as things started to return to normal in northern Mali. This meant that the most coercive actions, particularly in targeting operations, required high-level approval.
Naturally, when the situation became more stable, there were fewer targeting operations that required lethal force: French personnel were asked to focus on taking prisoners, and only killing where capture was impossible.
In addition, a directive was issued stipulating zero tolerance for collateral damage. Our operation was carried out principally for the benefit of the people of Mali, so it was incompatible with civilian losses. I am happy to confirm that the French forces involved in Operation Serval did not cause a single civilian death. As I have already mentioned, it was vital that we preserved our legitimacy and avoided provoking hostility among the civilian population.
D. SUSPECTED FRENCH JIHADIST ARRESTED IN MALI
[Source: “Suspected French jihadist arrested in Mali”, Rfi, 1 May 2013, http://en.rfi.fr/africa/20130501-suspected-french-jihadist-arrested-mali]
A Malian government source said 58-year old Gilles Le Guen, who goes by the name Abdel Jelil, was arrested near Timbuktu overnight on Sunday.
The French Defence Minister, Jean-Yves Le Drian, told radio station Europe 1 Le Guen “was arrested by our forces…there was no tighting, since the situation has almost been stabilised in Timbuktu.”
He will be questioned in Mali before being extradited to France, Le Drian said, adding that he has not yet been charged.
Le Guen, originally from Nantes and who worked for the merchant marine, is believed to have joined Al-Qaeda’s north African branch, Al-Qaeda in the Islamic Maghreb (AQIM), sometime after moving to Mali with his family after living in Morocco and Mauritania.
QUESTIONS TO BE ANSWERED
First set of questions
– How would you qualify the situation in Mali in light of the IHL classification of armed conflict since the coup d’état on 22 March 2012 until the deployment of the MINUSMA in Mali in July 2013? Please qualify the different situations of violence in relation to the different actors involved in those situations.
– Does IHL apply to the MINUSMA?
– Does IHL apply to the French territory?
In order to answer the two first questions, you are strongly recommended to collect other relevant facts than those indicated in the “general factual background concerning the situation in Mali” (above). Please mention your sources and be sure that those facts are reliable.
Second set of questions
4. Please describe the specific IHL obligations that the French troops have taken into account when conducting the military operations mentioned under B “Attacks during the French Offensive” (i.e. attacks on 11, 16, 17 January and 9, 10 February 2013).
5. What do you think about the following extracts concerning the use of lethal force by the French forces:
– “In the Adrar des Ifoghas, the whole brigade was, for a specific duration, given a blanket authorization to attack any element belonging to armed groups
– “Personnel must be extremely careful, not only for obvious ethical reasons but also, and I must stress this again, to ensure legitimacy. That is why combat units must always use only the amount of force strictly necessary. That often means minimal force, although the use of lethal force is of course permitted.
– “Naturally, when the situation became more stable, there were fewer targeting operations that required lethal force: French personnel were asked to focus on taking prisoners, and only killing when capture was impossible.”
6. Are airstrikes only lawful if there is a “zero expectation” of death and injury of civilians, as required by the French directive?
Third set of questions
7. Which status and treatment must be given to the French jihadist arrested by France in Mali according to the IHL rules?
8. Could the French jihadist be judged for terrorist offences by the French authorities?
9. Would the ICC be competent to prosecute suspects of war crimes in Mali?

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