Mali: what is the legal scope of the UN report accusing France of the death of 19 civilians?



A strike by the French army reportedly killed 19 civilians on January 3 at a wedding in the village of Bounti, Mali. This is the conclusion of the investigative report drawn up by the United Nations Multidimensional Integrated Stabilization Mission in Mali (Minusma) published on March 30.

In the process, the Ministry of the Armed Forces issued in a press release “Many reservations as to the methodology” and repeated with “Constancy” and ” strength “ the version defended for nearly three months: “On January 3, the French armed forces carried out an airstrike targeting an armed terrorist group identified as such. “

Debate on the concept of “Fighter”

Was the operation conducted by the Barkhane force in accordance with international humanitarian law? Legally, the debate focuses on the notion of “Fighter”. The Minusma confirms that five individuals, among a hundred guests, belonged to the Katiba Serma, affiliated with the Support Group for Islam and Muslims (GSIM). Three of them were reportedly killed by the attack.

→ THE FACTS. Mali: French strike killed 19 civilians in January, UN investigation finds

But the UN refutes the notion of “Fighter”, in the case of a non-international armed conflict, and prefers to distinguish civilians – “Protected at all times” – people who “Participate directly in hostilities” : “Mere allegiance or sporadic support of an individual is not enough to consider him as a member of an organized armed group”. However, believe the UN investigators, “It seems difficult under the circumstances (an hour and a half of observation) that the party responsible for the attack could determine that all the participants in the rally were members of an organized armed group. “

The Ministry of the Armed Forces defends itself against the slightest breach of its obligations: “This strike followed a robust targeting process that ensures strict compliance with the rules of the law of armed conflict. “

Future judicial investigation?

Could the Minusma report lead to legal action? “The first judges of violations of humanitarian law are the domestic courts of each State; it is only in the event of failure of these that cases can be transferred to international criminal justice “, decrypts Julien Antouly, doctoral student at the Center for International Law (CEDIN) at the University of Paris-Nanterre. The report could therefore be used in support of legal action initiated in France.

In a judgment delivered in February, the European Court of Human Rights (ECHR) enshrined “The obligation to investigate the deaths of civilians caused by an air strike ordered during a phase of active hostilities of an extraterritorial armed conflict”. The community court had been seized by an Afghan whose two sons had died in 2009 in a NATO strike ordered by a German officer, after a dismissal of his complaint across the Rhine.

The judgment of the ECHR would therefore require the French justice to investigate the facts of Bounti in the event of a complaint from Malian nationals. “As we are in the context of a non-international armed conflict, French humanitarian law and criminal law apply, confirms François Saint-Bonnet, legal historian and professor at the University of Paris II. The Paris court, in its section specializing in military affairs, could initiate an investigation on the basis of this report. But this type of business is very often resolved through politics. “

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