The legal framework for overseas operations

Greffier. © E. Rabot/SGA/COM

There is no single legal framework for overseas operations, nor even a single legal definition. For over 50 years, France has been involved militarily in theatres of operations that have led to conflicts and interventions of a varied nature, requiring the legal framework to be adapted. In addition, from the decision being taken by the head of State, head of the armed forces, to the overseas operation getting under way, the law is present at every stage, whether to justify the use of force, plan the action or protect the troops.

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What is an overseas operation?

The term ”overseas operation” (opération extérieure, in French) refers to interventions by the armed forces abroad, in the meaning of Article 35 of the French Constitution of 1958. Since the constitutional reform of 2008, that article requires the government to notify Parliament of its decision to deploy the armed forces overseas, no later than three days after the start of the operation, and, where it goes on for more than four months, to seek authorisation from Parliament to prolong the operation. At the review of the constitutional bill, the legislator noted that the ”term 'intervention' encompasses what are generally referred to as 'overseas operations', usually defined as operations requiring the deployment of troops outside national territory, to an area of crisis, with the aim of preserving or restoring peace. But it can also refer to humanitarian operations and, above all, does not make notifying Parliament dependent upon the legal classification of an operation, unlike the insurance coverage of personnel deployed on overseas operations, in accordance with Article L.4123(4) of the Defence Code” (Report No 892 of 15 May 2008, National Assembly).

The term ”overseas operation” likely finds its origin in the Loi du 30 avril 1921 instituant une Croix de guerre spéciale au titre des théâtres extérieurs d'opérations (Law of 30 April 1921 instituting a special Croix de Guerre for the theatres of overseas operations). It was something which, for States at that time, was still a standard instrument of foreign policy.

Towards a ban on the use of force

The extent of the disaster caused by the First World War led to changes in international law in this sphere. In 1919, the Covenant of the League of Nations sought to restrict the use of force, namely by making wars of aggression illegal. The Kellogg-Briand Pact (1928) went a step further: recourse to war in any form was condemned, except in self-defence.

In 1945, the ban on war became firmly established with the UN Charter, which extended it to any use of force not compatible with the aims of the United Nations, thus bringing about a real transformation of international law.

More comprehensive than the League of Nations Covenant, the rules laid down in the UN Charter or deriving from its implementation (peacekeeping operations, for instance, were not provided for in the Charter) are what govern our overseas operations today:

  • The Charter specifically requires Member States to settle their disputes by peaceful means (Article 2(3)) and prohibits them accordingly from using force (Article 2(4)) without authorisation from the Security Council (Articles 39 and 42). In response to what it describes as ”any threat to the peace, breach of the peace, or act of aggression”, the Security Council has the authority to decide on the necessary preventive (Chapter VI of the Charter) or enforcement (Chapter VII) measures, namely using armed force. The Security Council can authorise a Member State or international organisation (e.g. NATO or the European Union) to implement such measures.

  • There is only one exception to the ban on the use of force: individual or collective self-defence (Article 51), which is an inherent right of each Member State if they are the target of an armed attack. United Nations General Assembly Resolution 3314 defines aggression as the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State.

The armed forces under more than one jurisdiction

The French armed forces may also intervene at the request of a State involved in an internal armed conflict. Overseas intervention by the armed forces, in the event of armed conflict, is also enshrined in international humanitarian law and the law of armed conflict:

  • Where a conflict is classed as an international armed conflict (a confrontation between the armed forces of at least two States or a struggle against foreign occupation), the four Geneva Conventions (1949), Additional Protocol I (1977) and the Hague Convention (”laws of war”), in particular, are applicable.

  • Non-international armed conflicts of high intensity (protracted confrontations between governmental armed forces and organised non-governmental forces under a command and in control of a territory) are governed by Common Article 3 of the Geneva Conventions and Additional Protocol II.

  • International humanitarian law applicable to a non-international armed conflict of low intensity (protracted confrontation between governmental armed forces and one or more organised armed groups, or between such groups) is defined only by Common Article 3 of the Geneva Conventions.

Infographic © SGA/COM/IDIX

French armed forces deployed overseas are also subject to the national law of the State on whose territory they are stationed and, where applicable, to French law. In particular, this means French criminal law. In such cases, the concurrent application of the law of the host State and French law is usually settled by a status of forces agreement (SOFA). Where the French armed forces are part of a multinational operation, the SOFA is also a means of settling any disputes arising between the contingents of the nations participating in that operation. The Agreement regarding the Status of Forces of Parties to the North Atlantic Treaty (London, 1951) is an example of such stipulations.

Where an operation takes place in a context other than that of armed conflict (a humanitarian operation, for instance), local law, French law in part and international human rights law are applicable.

The legal diversity of overseas operations

From the 1960s to the early 1990s, France intervened some thirty times, mainly in Africa, in response to requests from allied States (Chad) or to protect its own nationals (Kolwezi, 1978). The period that began with the fall of the Berlin Wall (1989), then the break-up of the Soviet Union and Warsaw Pact (1991), saw over a hundred military interventions. Some of these operations were classed as international armed conflicts. This was the case of the Gulf War of 1990-91 and the military intervention against Libya in 2011, which were carried out on the basis of UN Security Council resolutions taken in accordance with Chapter VII of the Charter. Other operations have been classed as non-international armed conflicts:

  • France's military interventions in Mali and neighbouring countries to combat the armed groups that are threatening Mali's stability and civilian population, and in the Levant against IS, are taking place in a context of high-intensity conflict.

  • The support provided by French forces to the Central African Republic in its struggle against groups fighting one another on its territory took place in a context of low intensity.

The way in which international law classifies the circumstances of French military intervention overseas also determines, in French law, the legal rules governing the use of force by its troops.

A legal regime for troops deployed on overseas operations

Troops deployed on overseas operations have the right to act in self-defence (Article 122(5) of the French Criminal Code (Code pénal)). In addition, since the general law of 2005 governing military service personnel, they are not criminally liable, as set out today in Article L.4123(12) of the Defence Code (Code de la défense): ”Service personnel are not criminally liable who, in accordance with international law and in the context of an operation mobilising a military capability which takes place outside French territory or French territorial waters, whatever its purpose, duration or scope, including the freeing of hostages, evacuation of nationals or policing of the high seas, take enforcement measures or use armed force, or give orders to do so, where it is necessary in the pursuit of their mission.”

This criminal exemption, which permits the use of lethal force other than in self-defence, reaches its full extent, in terms of protection against the criminal risk of those who use force or take enforcement measures, only when the operation is carried out in a context of armed conflict. French service personnel are not bound by the conditions of self-defence where an operation takes place overseas and involves more than just policing, since the force's (UN) mandate permits them to take ”all necessary measures” to carry out their mission and authorises them, in particular, to use lethal force under the conditions laid down in the law of armed conflict. The same logic applies in the sphere of treaty law: for instance, Article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides for derogations from Article 2, on the right to life, in the event of ”lawful acts of war”.

Finally, the legal framework for an overseas operation is completed by instructions issued to the military units deployed, specifying the circumstances and conditions under which they may use force (rules of engagement, or ROEs) and the behaviour to be adopted, individually and collectively, both on duty and off duty (rules of conduct).

First Class Chief Commissary Pierre Ferran - Directorate for Legal Affairs, Ministry of the Armed Forces

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Personal account

Principal Commissary Julien D.

(Legal Adviser)

”I was deployed to the Levant for three months in 2015 as a legal adviser, where my role was to advise the French command on the planning and execution of operations. It was my job, when air assets were employed, to provide a legal classification, in line with the law of armed conflicts, for each situation as it arose, and to give an opinion (favourable or otherwise) on the use of force by our aircraft. That advice sought to manage the risks of collateral damage in a context of judicialisation and media exposure.

The classification was based on the demonstrable existence of criteria deriving from concrete facts. So I had to make quick use of the data available from drones and talking to troops on the ground, to provide the required advice, in a setting where the speed of air action is a decisive factor, and where munitions fired in desert or urban setting are highly lethal. It was a challenging mission that demanded both speed and rigour.”

Veteran's card for service personnel deployed on overseas operations

Founded in 1916, the National Office for Veterans and Victims of War (ONACVG) is responsible for implementing policies and measures of recognition and compensation, in particular the award of the carte du combattant (veteran's card), which entitles its holder, among other things, to wear the Croix du Combattant.

The veteran's card was created by the Law of 19 December 1926, for soldiers who fought in the First World War, and in the Franco-Prussian War of 1870-71. Following the Second World War, the provisions were extended to the veterans of that conflict, then in 1952 to the troops who fought in Indochina and Korea, and in 1974 to those who took part in the conflicts in North Africa.

Ceremony for the award of the Croix du Combattant to overseas operations veterans. © R. Pellegrino/ECPAD

The increase in the number of overseas operations from the 1990s onwards soon raised the issue of what compensation and recognition should be offered to this new generation of service personnel, which emerged with the professionalisation of the French armed forces. As a result, the Law of 4 January 1993 provides that servicemen and women deployed to theatres of operations are entitled to the veteran's card under the same terms and conditions as their predecessors. The Order of 12 January 1994 specifies the theatres of operations concerned and the periods to be taken into consideration. Since 1 January 2014, entitlement to the veteran's card has been applicable to each specific operation, under the existing award terms and conditions. Finally, on 1 October 2015, new award criteria for the veteran's card were added: applicants now have to show that they served for at least four months (or 120 days) on an overseas operation.

The veteran's card can therefore be awarded to service personnel who fulfil one of the following conditions: presence of 90 days in a fighting unit; participation in nine combat actions; individual participation in five combat actions; a term of duty of at least four months (or 120 days) in one or more of the territories considered.

Also entitled to the veteran's card are the war wounded and equivalent, holders of an individual citation with cross, and those take prisoner by the enemy, subject to certain conditions concerning period of presence in a fighting unit. Since 1993, 149 190 veteran's cards have been issued. The card entitles the veteran to retirement at the age of 65.

Source: ONACVG