Friday, April 18, 2008

Colombia's cross-border raid of rebel camp

I appreciate this invitation to guest-post at IntLawGrrls, and hope my contribution will be of interest to the blog’s participants.

On March 1, 2008, Colombia attacked a jungle encampment in Ecuador occupied by Raul Reyes, the second in command of the Revolutionary Armed Forces of Colombia (FARC), killing Reyes and others. Colombian soldiers retrieved Reyes’ remains, his computer and other forensic evidence, and hastily withdrew.
The raid, undertaken prior to notifying Ecuador, sparked a regional crisis that resulted in Ecuadorian and Venezuelan military mobilizations along their borders with Colombia. Colombia justified its incursion as a right of legitimate self-defense under the doctrine of hot pursuit. The justification quickly unraveled, however, when evidence showed that the encampment’s occupants were sleeping at the time of the attack, and that the camp was well established, fortified, and provisioned.
Hot Pursuit on land is recognized as the chasing or tailing of armed aggressors across international borders as part of a tactical pursuit plan. Even then, the active hot pursuit argument is debatable under international law. Hot pursuit entails the use of force against the territory of a sovereign nation, and raises sensitive issues involving state sovereignty. While it may be argued that hot pursuit is justifiable under principles of self-defense, it is difficult to make the case that the Colombian forces could go into Ecuadorian territory and kill FARC members without Ecuador’s consent.
Other international law doctrines might apply to justify Colombia’s military action, such as Anticipatory Self-Defense to prevent an armed attack from happening where there is convincing evidence that an attack is actually being mounted. The notion of anticipatory self defense evolves from the 1837 Caroline case, which involved the interception and burning by British forces of an American vessel suspected of gunrunning to anti-British rebels in Canada. The Caroline case was later cited at Nuremberg in the Norway case where the judges rejected the argument made by the German defendants that their invasion of Norway was justified on a reasonable fear that Norway would become a base for an Allied attack on Germany. Colombia could support its anticipatory self-defense argument by proving that it took action against the FARC group on the strength of evidence tying the group to prior attacks in Colombian soil and perhaps producing the testimony or testimonies of apprehended individuals who revealed that more attacks were planned.
Finally, Colombia might rely on the Bush Doctrine of preemptive self-defense to justify its raid as a military action against a potential adversary to preempt future attacks. Under this definition, a military reaction is divested of defensive character since the defense is future-oriented and the threat is merely a potential one.
These doctrines, as well as an analysis of Colombia’s potential arguments of self-defense under applicable articles of the United Nations Charter, are discussed in my forthcoming article, Colombia’s Incursion into Ecuadorian Territory: Justified Hot Pursuit or Pugnacious Error?, to be published in the Spring 2008 issue of the Florida State Journal of Transnational Law and Policy.

1 comment:

Jennifer said...

Or we could denounce Colombia's violation of Ecuador's sovereignty in international discourse.

Raul Reyes was negotiating a release of prisoners with Venezuelan president Hugo Chavez when his encampment was attacked. With the deaths of the camp members, negotiations were in effect destroyed.

Considering that Ecuador has an active history in ridding its territory of FARC encampments, this would have been the perfect opportunity for Colombia to initiate a joint venture or possibly a tri-partite initiative with Venezuela.

Why would we want any country to implement the Bush doctrine when all of Bush's legal theories have been concocted and criticized heavily within the legal community. In order to further regional cooperation, we need more respectful international legal arguments to be promulgated.

Colombian-Argentine American