James P. Rudolph joins us for this fascinating guest-post on the need to respond to the ongoing crisis in Mali. James is an attorney in Washington, D.C. and California where his work focuses on international law. In this post he guides us through the various political, economic and legal responses available to the international community, focusing in particular on the potential for an R2P-response to the violence in Mali.
Six months ago, a coup d’état toppled President Amadou Toumani Toure (“ATT”), the democratically elected leader of Mali, and soon thereafter ATT went into exile; armed groups in the north, inspired by a strict and austere interpretation of Islam and the desire to impose Sharia law on the entire country, have engaged in jihadism, terrorism and arms trafficking; and many of Mali’s cultural treasures and riches have been destroyed by the same armed groups who consider much of modern civilization – i.e., the West – to be decadent and depraved and thus in need of purification.
Lamentably, most of these developments – marauding and irredentist Islamists linked to al-Qaeda in the Islamic Maghreb, the destruction of cultural relics and objet d’art, threats to World Heritage sites – have been overlooked or ignored. To be sure, some outlets – notably The New York Times and the BBC – have done their part to sound the alarm, and Alain Juppé, the former foreign minister of France, was told in March that if these groups gained control of the north, Mali would be turned into another Afghanistan.
Nevertheless, much of the world’s reaction has been subdued or nonexistent. This is regrettable, for what is happening in Mali has the potential to turn into a full-blown civil war with international peace and security implications. That is, certain regional organizations – namely, the Economic Community of West African States, or Ecowas – have already been sucked into the vortex of violence and armed conflict. Obviously, the situation is more than an internal disturbance, with Mali’s neighbors worried about contagion and France positioning troops in the Sahel. That this is of concern is not doubted. But when it comes time to settling on an appropriate response to this ostensibly internal conflict, the international community seems stuck. In an effort to contribute to a workable solution, this essay proposes that there already is a framework for thinking about the crisis in Mali. It’s called the Responsibility to Protect (R2P), and it offers, at a minimum, a way forward.
R2P entails, interestingly, more than the responsibility to protect. Indeed, the concept has built within it three responsibilities: the responsibility to prevent, the responsibility to react and the responsibility to rebuild. As the situation in Mali seems already to have passed the point where prevention would be effective, the real focus must now be on the responsibility to react. Notwithstanding this conclusion, and to ward off any confusion concerning the use of force, the responsibility to react also has preventive steps to take before coercive, non-consensual force is used. To be sure, military force is part of the responsibility to react, but it is always a last resort and only if it is likely to do more good than harm.
Thus, the focus must first be on the other options within the reaction “toolbox,” and only if these fail can we seriously consider the use of force. These other steps include political and/or diplomatic responses; constitutional and/or legal responses; economic and social responses; and security-sector measures. We will take these in turn.
Political and diplomatic responses are actually divided into political incentives and political sanctions. Incentives include things like diplomatic recognition, membership in international organizations, cancellation of debt, etc. In the case of Mali, we are dealing with a bifurcated country (with two-thirds of the country controlled by Islamists), so these incentives are unlikely to work, because the real issue is how to get the government in Bamako, the capital, back in control of the north. Likewise, political sanctions (things like withdrawal of diplomatic recognition, expulsion from international organizations, travel bans) are, like political incentives, of dubious utility.
The next option, therefore, is the constitutional/legal option, but to be precise, the constitutional option is really about long-term, structural changes tailored to prevent atrocities in the first place, so the focus here is on legal options. In short, this means criminal prosecution. First and foremost, national governments continue to play the primary role in enforcing international law, and this includes prosecution for crimes subject to universal jurisdiction like piracy, genocide, torture, crimes against humanity, etc. It is only when the state is unable or unwilling to prosecute (other than referrals by the Security Council) that institutions like the International Criminal Court (ICC) get involved. Unfortunately, the government in Bamako, which lost control of two-thirds of the country, seems unable to mount an effective prosecution of the crimes being committed in the north. Indeed, Mali is seeking international help by, among other things, asking the ICC to launch an investigation into possible war crimes, signaling its intent to rely on outside help. But launching an investigation and actually apprehending suspects are two different things, as the case of Omar al-Bashir in Sudan so painfully reminds us.
The application of economic and social measures – the next analytical step in the process – is related to political and diplomatic incentives/sanctions, and they are, for the same reasons cited above, suspect. Thus, we are left with the final step in the analysis – security measures and, possibly, the use of force.
Security measures include peacekeeping under Chapter VI of the UN Charter (dubbed Chapter Six and a Half by Dag Hammarskjöld because the term “peacekeeping” is not found in the Charter). Peacekeeping forces are primarily engaged in monitoring, supervision and verification of cease-fires and peace agreements, so this option, at least in the case of Mali, is premature, as the threat of instability and destabilization from the north has not yet been neutralized.
This brings Chapter VII, Article 42 of the United Nations Charter into play: “Should the Security Council consider that measures provided for in Article 41 [measures not involving the use of force] would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.” Violations of human rights can constitute threats to the peace, so the triggering mechanism for UN action in Mali seems already to be in place if it can just muster the political will. (UN Human Rights Commissioner Navi Pillay has already expressed concern about the human rights violations occurring in Mali and has in fact described some of them as “war crimes.”)
The question, though, relates to specifics: What, exactly, would the use of force in Mali look like? At a minimum, it could involve the establishment of safe havens for those fleeing the violence and repression in the north. Arms embargoes and jamming of radio frequencies could also interfere with the Islamists’ ability to communicate with one another. But all of these suffer from one fundamental weakness: they are unlikely to extirpate the fundamentalists in the north of the country. Thus, it appears as though direct military action is the only alternative if eliminating the extremists is indeed the objective. For this, the UN, acting pursuant to Chapter VII, would have to authorize the use of force. But this has not yet happened, so the only remaining option (other than bypassing the UN) is reliance on a regional organization – that is, Ecowas.
Chapter VIII of the UN Charter acknowledges the important role played by regional organizations, but there is a catch: “No enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council…” In other words, Ecowas would have to receive a UN mandate to proceed with the deployment of troops in Mali. There have been reports that this mandate is forthcoming, so if it comes it must be clear and the force itself must be strong enough to carry out its mission – i.e., remove the Islamists, restore law and order and reestablish Mali’s territorial integrity.
In conclusion, then, R2P provides us with a framework for thinking about how best to respond to the crisis in Mali. There are available to the international community several options short of coercive, non-consensual force, and these measures must be given serious and sustained attention. That said, some of them (like ICC prosecution) remain Pollyannaish in the absence of international cooperation and coordination. And, to be fair, some skeptics will question whether R2P has a role to play at all, noting that it applies only to large-scale loss of life and conscience-shocking atrocities. They may be right, but at this stage, given reports of war crimes and other human rights violations occurring in Timbuktu and other northern cities, it’s probably best not to prematurely exclude R2P from the equation.
Whatever happens, we must keep in mind that this is not just about arcane references to the UN Charter and the justifications for when force can be used, though these are important considerations. No, there are other, more humane reasons for why we should all be engaged and concerned, and these have to do with the destruction of priceless world heritage sites, the existence of thousands of refugees, the exploitation of women and the denial of the right to self-determination. In other words, things that have to do with the common heritage of humankind and our ability to develop politically, culturally, economically and socially without fear and abuse. This, more than anything else, is why the crisis in Mali deserves more attention.