03 Mar Colombia’s Incursion into Ecuador and Anticipatory Self-Defense
At the heart of the Ecuadoran/ Colombian/ Venezuelan tensions, there is a dispute over the facts that has legal implications as to whether Colombia’s military action was self-defense or anticipatory self-defense (which, as many would see it, would make it aggression). As CNN explains:
[Ecuadoran President Rafael] Correa told reporters in Quito that [Colombia’s Presdient Alvaro] Uribe told him the raid occurred after a FARC column fled across the border [from Colombia and into Ecuador] and fired at Colombian forces, who “had to defend themselves.”
But Correa said his forces investigated Uribe’s claims and discovered that the Colombian planes attacked the guerrillas as they slept in a camp 2 km ( 1.2 mi) inside Ecuador.
“Of course Ecuadoran air space was invaded,” he said…
“We will not permit this outrage,” he said. “Either President Uribe was misinformed and will have to sanction his commanders who deceived him, breaking every international bilateral proceeding by entering our territory or Uribe simply lied. In either case, the situation is extremely grave and the Ecuadoran government is disposed to go to the ultimate consequences.”
In Colombia’s version of the facts, they can claim “hot pursuit” and self-defense. But Ecuador’s version of the facts would make Colombia’s action unjustifiable under classic legal understandings of self-defense and under such facts Colombia would need to rely, as a legal matter, on the controversial post-9/11 attempts by the United States to refashion the law of use of force. As Jose Alvarez had written in his comment Hegemonic International Law Revisited (97 American Journal Int’l Law 873 (2003)):
the prospective endorsement of individual and collective self-defense by the [UN Security] Council, together with its later acquiescence in Operation Enduring Freedom, may signal, depending on how the Council’s license comes to be interpreted by its licensee, the advent of three new general rules with respect to defensive force in the age of terrorism:
(1) Terrorist violence, at least when of the scale of the events of September 11, 2001, and even when undertaken by a nonstate actor, may constitute an “armed attack” for purposes of UN Charter Article 51.
(2) A state’s assistance to, harboring of, or post hoc ratification of violent acts undertaken by individuals within its territory, or perhaps even mere negligence in controlling such individuals, may make that state responsible for those acts and justify military action against it. In other words, such state action (or inaction) may constitute a breach of the state’s own duty not to violate UN Charter Article 2(4).
(3) The right to respond with military force against both terrorist individuals and harboring states does not become impermissible retaliation or illegal anticipatory self-defense, or exceed the rules of proportionality, merely because the threat of continued terrorist attack remains clandestine and unpredictable (as it has been since 9/11).
As this situation plays itself out, I wonder if the declarations and arguments by the political leaders of Colombia, Ecuador, and Venezuela, as well as those of other interested states, will provide a further gloss via state practice as to whether these new theories of self-defense have become more generally accepted. Will Colombia argue that, regardless as to which version of the facts you believe, they were within their rights to act?
In any case, as the troops of three countries head to their borders tonight, I hope that this situation will play itself out with nothing more than some heated rhetoric.
Even if Ecuador’s version of the facts is correct, if FARC has been attacking Colombia from Ecuadorian territory and this is not an isolated incident, then on my amateur understanding Colombia is justified under classical international law. If Ecuador has permitted FARC to use its territory as a base, then the FARC attacks constitute acts of war on the part of Ecuador. If, on the other hand, Ecuador has not countenanced the FARC attacks but is unable to control FARC, Ecuador is not in effective control of the region and action by other parties is not a violation of its sovereignty. Is this wrong?
With regard to loss of effective control, a long-standing example is the Japanese annexation of Taiwan in 1875, the legal basis for which was that the Chinese government was not in effective control since it did not prevent the Taiwanese aborigines from killing Japanese sailors shipwrecked on Taiwanese shores. Admittedly, Japan had ulterior motives, but my understanding is that the stated legal basis for annexation was accepted as a justification in international law.
There are two pretty much separate problems here. The first is whether Art. 51 of the Charter allows self-defense in cases when state A is attacked by non-state actor B operating from the territory of state C. The principal issue is whether the actions of B have to be attributable to C, as a matter of state responsibility, in order for A to be able to invade C’s territory in pursuit of B. One school of thought says that attribution is necessary, as the Charter is a state-centric system etc.; the other says that attribution is not necessary, and that state A may invade state C if C is unable or unwilling to stop B. So, by way of actual examples – did the actions of Al Qaeda have to be attributable to Afghanistan so that the US could invade Afghanistan? Or, did the actions of Hezbollah have to be attributable to Lebanon so that Israel could invade Lebanon in 2006? Or, to give an ongoing example – do the actions of the PKK in Northern Iraq have to be attributable to Iraq, so that Turkey is entitled to mount a limited incursion in pursuit of the terrorists? The state… Read more »
A number of scholars have noted that while the international reaction to post-9/11 US action in Afghanistan might be indicating an emerging trend towards such an expansion of the concept of self-defence, it could hardly be interpreted as an ‘instant custom’, changing the standard of attributability overnight. Apparently, the ICJ shares this view: in two of its post-9/11 decisions, The Wall and DRC v. Uganda, the Court essentially reconfirmed (despite some criticism coming from within the Court as well as from outside) the Nicaragua standard and considered the current state of international law to permit self-defence in the case of an armed attack by a non-state actor only if the attack is attributable to another State. Since this stringent traditional approach fails to address the question as to what kind of action a victim State is entitled to take in response to a large-scale armed attack by non-state actors where such acts cannot be attributed to a foreign State (a question of utmost relevance in the context of terrorist threats emanating from largely independent armed groups, often operating in a territory with no effective governmental presence or authority). Several authors have suggested that the victim State might be justified to… Read more »
Dominika, I would disagree with you that the ICJ has adopted a clear position on whether Art. 51 of the Charter requires the attribution of an armed attack to a state or not. Para. 139 of the Wall Advisory Opinion was meant to dispose of Israel’s invocation of self-defense simply by saying that two states must be involved in any such situation. Art. 51 is an exception from the prohibition on the use of force in Art. 2(4), which applies only between states. A state cannot respond to an armed attack by a non-state actor without infringing the sovereignty of the state from which that actor operates. There were no such attacks here, as all of them were emanating from territory under Israel’s exclusive control, and that is all that the Court wanted to say. Likewise, in Congo v. Uganda, the Court explicitly reserved its position on the issue of armed attacks by non-state actors, after concluding that the armed attacks alleged by Uganda could not be attributable to the Congo – see paras. 146 &147. That this issue is still open is also shown by a recent resolution of the Institut de droit international, which couldn’t agree on a… Read more »
Marko, it still seems to me that the Court’s position is rather consistent in that a purportedly defensive action in violation of another state’s sovereign rights hinges on the attributability condition, which in turn it construes very narrowly. In Congo v. Uganda it seems to be rather firmly (if not all that clear in structure) saying that Ugandan armed activities could not be justified as self-defence, because the irregular attacks were not attributable to the DRC since there was no satisfactory proof that these attacks had emanated from armed bands sent by or on behalf of the DRC within the sense of Article 31 (g) of the definition of aggression adopted by the General Assembly in resolution 3314 (XXIX) of 1974, or that the DRC had been substantially involved in these attacks. But I certainly agree with you that the ICJ’s view remains unclear as to the question what kind of action is available to the victim state when a non-state attack cannot be attributed to any territorial country, which is quite a source of frustration (as expressed also by judges Simma and Kooijmans in DRC v. Uganda). While the wider reading of self-defence (as including the right to strike… Read more »
My questions is: can’t we use a reductive phenomenology to conceptualize a common and basic root for all these incidents, which in my view can be started from Entebbe Incident 1976 up to Colombia and Iraq? In Entebbe case Israel relied beside the self defense, on the fact that the territorial integrity of Uganda had been violated temporarily. In that case, even thou Israel were acting militarily for saving nationals, members of the Security Council didn’t take the justifications posed by Israel seriously. I think the common attitude of states toward the doctrines which allows an act of incursion to other state’s soil for taking humanitarian or saving nationals and even preventive self defense measures, concerning the principle of territorial integrity, is becoming more flexible than before; The best example is Iraq that asked the Turk side to respect proportionality and necessity in its military activities. even thou we have no mathematical method to measure this claim. Generally speaking, I am more interested in the political side of the rule of law and global governance with respect to the importance of non state actors after 9/11, and I think these practices by regional powers like Turkey or other states can… Read more »
I have a question to the panel. It’s about whether the Hague convention is applicable in this case.
The rationale for why it would be applicable is that Colombia is the only belligerent – which makes it irrelevant that FARC hasn’t signed the convention. As a result Ecuador would then be a neutral power – whose territory is “unviolable”. Colombia’s attack on Ecuador’s territory would thus be in violation of the Hague Convention.
Now, my question is whether this argument is valid. Can Colombia be said to be the only belligerent? I’m a simple person, so I used to think that a war needed at least two belligerents. Somewhat analogous to the saying that it takes two to tango…
In any case, I would be very grateful if you would comment on this.