Can States Invoke ‘Hot Pursuit’ to Hunt Rebels?

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Introduction

Most of the foreign-born insurgents in Iraq enter the country through the Syrian border, U.S. officials estimate. They have warned Syria to stop the flow of these suicide bombers but no avail. Secretary of State Condoleezza Rice pressed her Syrian counterpart on this issue recently at an Iraqi security conference in Egypt. But some military experts have called on the U.S. military to raise the ante with Damascus by conducting cross-border raids by Special Forces or targeted air attacks to hunt down jihadis on Syrian soil. They argue that such a strike would be justified under international law and cite a principle known as "hot pursuit." Turkish officials have invoked this doctrine to justify recent cross-border incursions into northern Iraq to pursue Kurdish rebels. But some international legal scholars dispute whether the doctrine could be applied in this case and refute the notion that either U.S. or Turkish forces could justify cross-border incursions, however limited in scope.

What is the principle of ’hot pursuit’?

The doctrine generally pertains to the law of the seas and the ability of one state’s navy to pursue a foreign ship that has violated laws and regulations in its territorial waters (twelve nautical miles from shore), even if the ship flees to the high seas. "It means you are literally and temporally in pursuit and following the tail of a fugitive," says Michael P. Scharf of the Case Western School of Law. "[A state] is allowed to temporarily violate borders to make an apprehension under those circumstances." The principle is enshrined in Article 111 of the 1982 UN Convention on the Law of the Sea and in Article 23 of the 1958 Convention on the High Seas. The United States has signed but not ratified the former treaty, but signed and ratified the latter.

What are some historical examples of ’hot pursuit’?

History is replete with examples of foreign agents or armies crossing another state’s sovereign borders in pursuit of those suspected of committing crimes against another state. One famous example is the pursuit of Pancho Villa by U.S. forces into Mexico in 1916. The manhunt was in response to a cross-border raid of New Mexico by Pancho’s "Villistas," though the pursuit failed and Villa escaped. Another example was the 1960 seizure of Adolf Eichmann by Israeli agents in Argentina. Eichmann was a former high-ranking Nazi official wanted for war crimes. His capture was widely considered a violation of international law and Argentine sovereignty. Neither of the above cases involved ships on the high seas, nor did either of the states invoke the principle of "hot pursuit" to justify their cross-border activities.

How can this principle be applied to Iraq?

Under international legal norms on state responsibility, and UN Security Council Resolution 1373, passed shortly after the events of 9/11, state sovereignty implies a duty to control one’s territory. That is, a government has an obligation not to allow its territory to be used by non-state actors—or terrorist organizations—to carry out armed attacks against its neighbors. In this case, the U.S. government must prove the Syrian government has failed to prevent these foreign actors from crossing into Iraq and carrying out attacks against U.S. troops. In response, U.S. Special Forces could then "pursue" these foreign jihadis, even if they flee back into Syrian territory. CFR Senior Fellow Max Boot writes in the Weekly Standard that to date the Bush administration has refused to authorize Special Operations forces to hit terrorist safe houses in Syria "even though international law recognizes the right of ’hot pursuit’ and holds states liable for letting their territory be used to stage attacks on neighbors."

What are some legal challenges to this argument?

Legal experts agree that the principle of "hot pursuit," as it pertains to sovereign territories versus the high seas, remains unsettled. "Let’s say [U.S. forces] were to wait for a bunch of terrorists to cross into Iraq and launch an attack and then chase them over the [Syrian] border, no one will ever complain about that," says Scharf. "But to invade another country without an actual pursuit on is going to stretch the idea of international law."

Peter Danchin of the University of Maryland School of Law says if states want to prosecute someone for war crimes or crimes against humanity, usually they need to have them extradited. "This idea of ’hot pursuit’ is just an attempt to twist the law of the sea doctrine into a self-defense idea. What you’re talking about is the use of force against the territory of another state," which brings up touchy issues of state sovereignty. "Let’s say [the jihadis] go into Turkey?" he asks. "You’d have a hard time making the case that the 101st Airborne should go in and take them out without Turkish consent." Further complicating the problem, Danchin argues, is that the United States is not the sovereign in Iraq. "It has fewer rights as an occupier than it does as a sovereign," he says, referring to the legal use of force. David M. Crane, an expert on international law at Syracuse University, says if these foreign jihadis are apprehended on Syrian soil, they should be tried under Syrian domestic law. Any armed incursion by U.S. forces into Syria, he adds, would " be a serious breach of international law and technically an act of war."

Under what other legal circumstances could U.S. forces enter Syria?

The United States could argue, as Israel has done to justify strikes against Hezbollah installations in southern Lebanon, that a limited strike against bases used by foreign jihadis in Syria would be justified under the principle of anticipatory self-defense, which some legal scholars say is upheld by Article 51 of the UN Charter. Other experts point to the 1837 Caroline case, in which British and Canadian rebels crossed into U.S. territory and set the steamer Caroline ablaze, killing two Americans in the process. The Americans argued that the British claim of self-defense—the ship was suspected of ferrying arms to anti-British rebels—failed to "show a necessity of self-defense [that was] instant, overwhelming, leaving no choice of means, and no moment for deliberation," a line of argument often cited by legal authorities to justify anticipatory self-defense. In the case of Syria, the U.S. government could invoke UN Security Council Resolution 1373, which says that states have the responsibility to prevent the misuse of their territory by non-state actors like al-Qaeda.

What are Syria’s responsibilities under international law?

Syria must prevent its territory from being used as a safe haven for terrorists and patrol its border to prevent attackers from entering Iraq. Under UN Security Resolution 1373, states are obligated to "deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens" and "prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other states or their citizens." Failure to comply could prompt UN sanctions against Syria. But Damascus is not directly responsible for the actions of these foreign jihadis unless it can be proven to exercise "effective control" over them, a high threshold to meet under international law.

In Nicaragua v. United States (1984), the International Court of Justice (ICJ) found the United States, which supplied funds to the Contras in the early 1980s as part of a strategy to unseat the Sandinista government, did not "in itself amount to a use of force," nor did the Court find the Nicaraguan government liable for its failure to halt weapons that flowed into insurgents’ hands in El Salvador. Later the ICJ found the Serbian authorities did not have effective control over Bosnian Serbs, who stood accused of genocide and other war crimes. Citing such examples, legal experts say the U.S. government would be hard-pressed to prove Syria—unlike, say, the Taliban government in Afghanistan—can be held responsible for attacks carried out by non-state actors operating from its territory. "It’s not a strong case for the U.S.," says Scharf of Case Western School of Law.

Do states generally observe international legal norms of ’hot pursuit’?

No, particularly as it relates to territory versus the high seas. "If you’re talking about international rules on territorial sovereignty, the arguments on ’hot pursuit’ are going to be much weaker than in the high seas case because you’re not infringing on the sovereignty of any other state [in the latter case]," says Danchin.

To be sure, states routinely violate other states’ sovereignty to pursue those wanted for various crimes, instead of following international legal norms and extradition processes. For example, in recent years Russian forces regularly sought Chechen rebels believed to be hiding across the border in Georgia, and in the months after the 1994 Rwandan genocide, the Tutsi-led army pursued Hutu militia suspected in the genocide across the border into Congo. In 2002, the United States sent an unmanned Predator drone into Yemen and struck a car, killing five suspected terrorists, including an al-Qaeda leader wanted in the 2000 U.S.S. Cole bombing. In more recent months, the Turkish authorities have flirted with an invasion of Iraqi Kurdistan, which is part of sovereign Iraq, in pursuit of Kurdish guerillas who launch cross-border attacks into Turkey.