State Practice regarding Self-Defence against Non-State Actors: An Incomplete Picture

State Practice regarding Self-Defence against Non-State Actors: An Incomplete Picture

Two weeks ago, the International Law Association released its long awaited and very interesting report on use of force. It is a very thorough document that is a must-read for anyone interested in jus ad bellum.

Some parts of the report have generated some interesting discussions that I think are worth expanding in a post here. Particularly, the main point of contention was the affirmation that “although the issue is still debated, there is growing recognition – including through State practice – that there are certain circumstances in which a State may have a right of self-defence against non-state actors operating extraterritorially and whose attacks cannot be attributed to the host State.” This state practice was demonstrated by letters sent by 8 NATO members (Canada, Turkey, the UK, the US, France, Denmark, Norway and Belgium) and Australia to the UN Security Council, concerning use of force against ISIS in Syria, and on “numerous situations over the past two centuries” which included the Caroline incident of 1837, and the 1916 US “Punitive Expedition” in Mexico.

I will have more to say about these evidences in a future post. As a Latin American, however, I was more struck by what was not said when discussing state practice. One first omission was rightly pointed out by OJ’s own Kevin Jon Heller on Twitter, where he objected that the Report completely failed to even mention Brazil’s now famous “robust defense” of a limited interpretation of the UN Charter use of force regime in this year’s ASIL Annual Meeting (a topic I have also discussed in the past here). The second omission, however, was even more surprising for me, because the Report did mention but failed to discuss the implications of the 2008 Colombian attack of a FARC camp in Ecuador’s territory. Indeed, footnote 99 clearly refers to the incident (although misspelling the name “Colombia” for “Columbia” – a common mistake in the Global North, but one, I should add, that very much frustrates every single Colombian I know!) using it as an example of an attack that has “little effect on the host State itself”.

This single mention (and the inevitable implication of insignificance) completely and utterly fails to convey the scale of what was the biggest military crisis in South America in the new millennium. Colombia framed the issue as one of self-defence against the FARC, stating that Ecuadorean sovereignty was not violated. President Correa of Ecuador however went on live TV to denounce an “extremely serious and intolerable” situation, calling it an act of aggression by Colombia and an attack on Ecuador that violated its sovereignty. The fact that the FARC bodies were found in their pyjamas, he said, completely refuted any thesis of self-defence or hot pursuit, calling the incident “a massacre”. “We will not accept the imposition of unacceptable doctrines and practices of disrespecting States’ sovereignty, under the excuse of fighting what they call terrorism. There is no possible justification for a foreign military intervention in our territory”, he said, as he announced the withdrawal of his ambassador in Colombia and the expulsion of his Colombian counterpart from Ecuador (all translations are my own).

It is also noteworthy that Colombia’s own justificatory language was highly apologetic. Not long after its initial short statement, arguing self-defence, Colombia issued a formal longer response to Ecuador stating:

“The Government of the Republic of Colombia wishes to present the illustrious Government of the Republic of Ecuador its apologies for the action it was obligated to undertake in the border zone (…). The Colombian Government has never had the will or the disposition to disrespect or violate the sovereignty or integrity of the brotherly Republic of Ecuador, its people, or its authorities, for whom it has historically professed affection and admiration”.

A few days later, the OAS Permanent Council, in a Meeting of Consultation of Ministers of Foreign Affairs, passed a Resolution considering “that that act constitutes a violation of the sovereignty and territorial integrity of Ecuador and of principles of international law”.  Two days later, Correa and Uribe met in the XX Rio Group Summit, where 18 other countries, including 9 of their heads of state, would try to defuse tensions between the two.

The Summit was heated and difficult, and of great significance for the region. In some countries (such as my own, Peru) it was even transmitted live on TV. The atmosphere was tense, and this was evident from the start, with both Presidents talking out of turn and even interrupting each other. At one point, Correa stood up and left the room during Uribe’s presentation. Uribe retorted: “I will not continue until Correa returns. I’ve spent a week receiving insults without responding and now I want to say things to his face”. Amid the uncomfortableness, the Ecuadorean Minister of Foreign Affairs intervened: “he went to the bathroom. He is coming back”, and the room stood silent for a few more uncomfortable moments.

Uribe’s presentation made emphasis on what it called Ecuador’s lack of interest in contributing to Colombia’s security, criticising it for not taking action against FARC activities in its territory. He read a series of emails and classified information that allegedly proved a secret friendship between the Correa administration and the FARC, hinting that such a relationship made it impossible for Colombia to engage in cooperation with Ecuador in criminal matters. In short, Uribe was stating that Ecuador was unwilling to deal with the FARC situation within Ecuadorean territory.

After several hours of tense discussion and more than one incident, including Uribe implying Correa was “nostalgic for communism”, and Correa calling Uribe a liar, the crisis ended with a formal Colombian apology to Ecuador, an awkward handshake, and a forced hug between both leaders.

Throughout the course of the crisis some states issued statements in clear condemnation of Colombia’s position, and against the idea that a State can invoke self-defence against a non-state actor. The Argentinean Ambassador to the OAS, for instance, stated: “what we are considering is whether a State can, regardless of the invoked circumstances, unilaterally reserve the right to violate the territorial integrity and sovereignty of another State. That is, reserve to itself the right to exact justice by its own hand due to domestic conflicts in foreign soil. The unequivocal and resolute answer of the Argentinian Nation to this flagrant violation of international law is a categorical no”.

In the end, the Rio Group signed a Declaration on March 7th 2008, clearly condemning Colombia’s actions. “We reject this violation of the territorial integrity of Ecuador, and therefore reaffirm the principle that the territory of a State is inviolable and cannot be the object of military occupation nor of other forceful measures by another State, directly or indirectly, whichever the reason, even if temporarily”, it said.

This Declaration is clear evidence that the Rio Group members (Argentina, Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Guyana, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay and Venezuela) do not support any kind of “unwilling or unable” test for the use of force against non-state actors in foreign territory. That the ILA Report was aware of the crisis but unaware of its context and significance is rather evidence that the actions of some actors are given more weight due to factors that are completely arbitrary and unrelated to international law, such as linguistic limitations and/or access to documentation. This is something that has been already noted in the past, particularly with the use of force regime, and it’s a problem that is receiving increasing attention since the past year.

Hopefully, as international law outlets become more diversified both culturally and geographically, this will slowly begin to change. In this regard, I am happy to see OJ itself taking the lead!