Today, we've learned more information -- namely, that an Algerian military operation has freed hundreds of hostages while at least 12 have died and approximately 30 remain unaccounted for (update: that number appears to now be 7 hostages still being held). The hostage crisis and the French intervention in Mali are inextricably intertwined. Indeed, early reports indicated that the terrorists in Algeria cited French intervention in Mali as cause for their actions, demanding that French and other Western countries cease operations in Mali.
The hostages at the gas field, many of them workers at the facility, hail from all over the world. Most were Algerian nationals, but among the hostages are British, French, American, Japanese, Belgian, Irish, Romanian, Malaysian, Filipino, and more. Clearly, the sheer number of countries' nationals involved in this tragedy demand a global reaction that will continue beyond the hostage crisis, but the exact nature of that reaction remains to be seen. Some people will suggest a policy of disengagement and/or containment, where these countries are left to their own devices. Recent history has shown us the price of failed states, however, both as a power vacuum for internal strife and a haven for outside terror and militant groups. As the Malian government faces a threat from internal militants, the French have opted for a strong armed force to buttress Malian forces and address the threat. This raises an interesting (and unclear) legal question, namely: under international law, what are the principles under which French or other forces might legitimately intervene and/or provide assistance to the Malian military junta?
Deborah Pearlstein over at OpinioJuris suggests the most logical legal principle would be consent from Mali, which raises its own web of complications:
Attacking anything in Mali raises territorial sovereignty concerns. Is there a government there that could lawfully consent to the U.S. use of force in country such that the U.S. wouldn't risk violating UN Charter article 2 prohibitions against the use of force? Consent, best I can tell, is the only option here. There's no UN Security Council resolution authorizing the use of force. . . . So consent it is, and it would come from, best case, a government that seized power by coup and to which we've otherwise cut off military aid. The U.S. still maintains an embassy in Mali (as does Mali in the U.S.), so perhaps consent is not legally insurmountable. But I'd wonder both what the terms of the U.S. aid cut-off were, and whether there's any precedent for this.
One possible example from recent history is U.S. involvement in Yemen. A (hopefully) brief digression: When looking at a legal basis for U.S. drone strikes in Yemen, one would likely look to the 2002 AUMF as justification under domestic law. Under international law, however, the situation is trickier. While one might claim that U.S. action in Pakistan is a logical geographic extension of action in Afghanistan, the same cannot be said of Yemen. Rather, the most likely source of justification under international law is consent and collective self-defense. Let me be more specific: by permitting the U.S. to engage in military actions within its borders, Yemen relinquishes its territorial sovereignty. This doesn't solve the issue entirely, however; if Yemen's permission was all that was needed to permit U.S. drone strikes within Yemen's borders, then Yemen could theoretically permit action by the U.S. that it would not be allowed to legally commit on its own. Instead, the U.S. must be engaging in some sort of permitted military action under international law -- in this case, Yemen's self-defense against militants in a non-international armed conflict. Military action in Yemen has indeed shown Yemeni forces severely battling Ansar al-Sharia and AQAP. Although much of the U.S. involvement has been covert, enough has surfaced to indicate that U.S. military cooperation with Yemen has reached new peaks over the past year and has proven effective at targeting terrorists in the region.
U.S. military cooperation with Yemen has mostly come in the form of intelligence-sharing, aid, and U.S. drone strikes at areas Yemeni forces cannot reach themselves. Obviously, the French involvement in Mali is a stark contrast in many respects, with over 1,000 French troops committed in Mali. There are lessons to be learned from U.S. military cooperation with Middle Eastern countries such as Yemen (and, even Pakistan, once upon a time, when it used to provide the U.S. with airfields and intel for drone strikes). Those lessons can include proper levels of engagement, proper division of labor between domestic and foreign military actions, and navigating the murky waters of cooperation with a not-always-ideal domestic government. In this case, France (and to the extent it becomes involved, the U.S.) can learn from the complex U.S. involvement in Pakistan. The U.S. and Pakistan did not often see eye to eye, and indeed the relationship has become increasingly strained over the past two years. However, even in the face of stark disagreements (especially over hardly-secret Pakistani military aid to Afghan Taliban forces), the U.S. and Pakistan teamed up to target Pakistani Taliban forces -- an area of overlapping interests. Similarly, to the extent the U.S. considers involvement in Mali -- a country with whose government the U.S. has expressed serious reservations -- it might look for limited engagement in areas of shared interest. Of course, the downside to such involvement will be that, once again, the U.S. will risk calls of hypocrisy for supporting a non-democratic government. The alternative of extremists gaining a stronger foothold, on the other hand, is something that is in nobody's interest.
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