Setting Boundaries

Can Colombia cross into Ecuador in hot pursuit of rebels?

FARC guerrillas

In what was labeled a “hot pursuit” mission, Colombian forces crossed into Ecuador and killed more than a dozen FARC guerrillas March 1. Among those slain in the raid was Raúl Reyes, the organization’s No. 2, who is apparently a pal of Hugo Chávez’s. Venezuela’s strongman rattled sabers by amassing thousands of troops and tanks along the border and withdrawing Venezuela’s ambassador from Bogotá, warning, “This could be the start of a war in South America.”

Colombia has waged a decadeslong war against FARC, a band of Marxists known for its kidnappings and drug trafficking. But did Colombia’s government overreach by striking rebel camps inside Ecuador? The answer depends on whether you believe that nations should be allowed to violate their neighbors’ sovereignty in “hot pursuit” of armed combatants. Increasingly, states are saying, Why not? After all, Colombia claims that the Ecuadorian authorities collaborated with FARC and provided them with a safe haven. If you don’t keep your shop clean, the thinking goes, we’ll pry open your windows at night and do it for you. Turkey employed similar logic to justify its cross-border offensive into northern Iraq last month to root out the Kurdistan Workers Party, a pro-Kurdish rebel group. Ditto Israel’s rationale for its July 2006 invasion of Lebanon after Hezbollah fighters killed and kidnapped a handful of Israeli soldiers. All three states say they acted in self-defense.

Even the United States winks at hot pursuit’s legitimacy. In fact, the U.S. military says it was authorized to enter Iran and Syria to pursue insurgents, according to a classified 2005 memo released by Wikileaks last month. The same rules of engagement apply to its hunt for terrorists in Pakistan. As then-Army Lt. Gen. Douglas Lute said in a Senate armed services  committee hearing last March, U.S. forces do not need the approval of Islamabad “to pursue [terrorists], either with [artillery] fire or on the ground, across the border.” As recently as March 3, the U.S. Navy lobbed a few Tomahawk missiles into southern Somalia to take out a band of Islamist extremists.

Indeed, while “hot pursuit” may conjure an image of a car chase across county lines, its invocation among nations is growing. This is a reflection not only of the borderless nature of today’s enemies, from terrorists to drug traffickers, but also of states’ growing inability—or unwillingness—to control these combatants. The phrase refers to the right of nations to temporarily violate another state’s sovereignty and nab or kill wanted fugitives, whether they are terrorists, rebels, or war criminals. Others interpret the phrase more loosely to provide legal sanction for larger incursions or even surgical airstrikes.

Legal experts remain divided over the practice. Some say the term refers to the arcane right of navies to pursue foreign ships that have fled to the high seas and that it has no legitimacy on land. “The bottom line is there is no such thing as ‘hot pursuit,’ ” argues David Crane of Syracuse University’s College of Law. “Maybe if I’m a cop in Macon County, Ga., and the bad guy crosses over into the next county, then it’s OK.” But in the international arena, he says, Colombian forces cannot simply barge into Ecuador and attack rebels without Ecuador’s permission.

Others contend that the role between nonstate actors and their hosts has evolved. Prior to 9/11, only a government that exhibited “effective control” of a group within its borders was found liable for the group’s crimes. That is why the International Court of Justice found that Nicaragua was not responsible for funneling arms to El Salvador-based guerrillas in the 1980s. Nor did Serbia demonstrate “effective control” over Bosnian Serbs accused of massacring thousands of Muslims in the 1990s.

With the U.S.-led overthrow of the Taliban, however, the “effective control” principle was tossed out the window. U.N. Security Council Resolution 1373, passed shortly after 9/11, required that states “deny safe haven to those who finance, plan, support, or commit terrorist acts.” That is, state sovereignty confers rights but also responsibilities to control one’s territory. More important, says Michael Scharf of the Case Western Reserve University School of Law, “it gives the victimized country the option for self-help,” provided the response is immediate, proportional, and a means of last resort.

The trouble is that states tend to overreach. Both Turkey and Israel caught guff for using disproportionate force during their respective cross-border operations against the PKK and Hezbollah. Yet the doctrine of proportionality remains subjective. To paraphrase what a law professor told me after the Israeli-Hezbollah conflict: If someone punches you in the nose, you don’t burn their house down. That is, Colombia cannot respond to FARC guerrilla activity by carpet-bombing Quito. A targeted airstrike against a terrorist safe house near the border, on the other hand, is more open to debate.

There is some confusion over whether a chase has to be under way for hot pursuit to apply. Ecuador’s president said the rebels were killed “in their pajamas,” not while fleeing Colombian forces. Regardless, Colombia doesn’t believe it will be slapped with sanctions or reprimanded by the United Nations. Nor is Venezuela expected to follow through on its threat to “send some Sukhois” into Colombia. “This is just a way for Chávez to ramp up the costs and consequences for Colombia,” says Adam Isacson, director of programs at the Center for International Policy.

Still, this standoff highlights the real danger that hot-pursuit raids can pose. In the post-9/11 era, nations have a right to self-defense against nonstate actors. But were this to emerge as the new global norm, twitchy nations would just invade their neighbors with impunity, running the risk of localized conflicts escalating into regional conflagrations. Worse, terrorist groups such as FARC or the PKK would not be eradicated—they would simply find sanctuary elsewhere.