Leticia & Pancho: The alleged historic precedents for unwilling or unable in Latin America, explored (Part I, Leticia)

Ever since its very first articulations, the “unwilling or unable test” has relied heavily in the time-tested legitimacy of the 1837 Caroline Affair, where British forces sunk a vessel manned by Canadian rebels in American territory. Dressing such a visible and well-known case in the cloth of “unwilling or unable” allows its proponents to argue that its underlying principles have always been an accepted rule of international law, and we all just missed it.

However, one specific incident is not enough to prove that a particular legal rule has been firmly established in international law for the past 200 years. This is why, as the test’s articulation became more refined, its adherents have sought to find additional situations that may help confirm the suspicions borne by the Caroline, that the test was always part of international law, particularly if they occurred before the adoption of the UN Charter.

To my knowledge, the most comprehensive list of incidents that would give support to the longstanding (pre-Charter) character of the unwilling or unable test is the appendix to Ashley Deeks famous article on the matter. This list starts with an 1817 United States attack on Seminole Indians in Spanish Florida and finishes with the British attack against the Altmark, in Norway, during World War II. Of the 12 pre-Charter cases listed, 8 deal with non-state actors, and of these, to my surprise, 6 involve Latin American states.

I was particularly surprised to see the 1932 Leticia Incident between Peru and Colombia and the 1916 US Expedition against Francisco “Pancho” Villa make the list; two events that – at least the way I learned about them – did not really match the basic requirements of the test. My surprise continued to grow, however, as these cases kept popping up in subsequent conversations and reports, and I decided to take a more detailed look. This two-part post contains the results of my inquiry, starting today with Leticia, leaving Pancho Villa for another day.

The Leticia Incident is a topic I am well aware of. As any Peruvian, I studied it in high school as part of Peruvian history class, as the triggering event of the 1933 Colombo-Peruvian War. The story behind Deeks’ chart is both interesting and uncommon, and a good way to understand how States viewed sovereignty and territorial integrity in the early 20^th century.

The crisis traces its origins to the territorial uncertainties caused by the independence of Spanish America, particularly in the under-explored but resource rich Amazon jungle. As can be seen in the map I prepared below, Peru sought control of all territories south of the Caquetá river, whereas Colombia claimed all territories north of the Napo and Amazon rivers. In 1922, they negotiated a compromise fixing the border at the Putumayo river, but granting Colombia a small piece of land protruding to the south, called the Amazon Trapezoid. The area was of strategic importance, as it included the Amazonian port of Leticia.

This accommodation, known as the Salomón-Lozano treaty, proved highly unpopular in Peru. It was speculated that President Leguía signed it only to accommodate the United States, that was seeking to compensate Colombia for the loss of Panama. In 1930, the unpopular Leguía was brought down by General Luis Miguel Sanchez Cerro, a strong opponent of the treaty.

Two years later, on September 1^st, 1932, a group of Peruvian citizens and a few rogue soldiers, decided to storm Leticia, expel its Colombian authorities and raise the Peruvian flag in the town’s main square. Sanchez Cerro was caught by surprise and was undecided as to how to proceed. Considering his position on the treaty, he could not fully denounce the action, but he could not afford a full scale war either. His decision was to try to walk a thin line, seeking to take advantage of the rebels’ actions to secure political gains for himself and territorial conquests for Peru, but without renouncing the Salomón-Lozano border. On September 30^th, Peru formally invited Colombia to revise the treaty, under the terms of Article 19 of the Covenant of the League of Nations.

Colombia, of course, reacted as expected, demanding that Peru disavow the rebels and declare its neutrality, while beginning preparations to retake Leticia. The main problem, however, was that Colombia had no fleet with which to achieve this goal. In order to gain time, and while it purchased the ships and weapons it required, it addressed Peru’s concerns through diplomatic means. In October, 1932, Colombia responded that it would re-establish control over Leticia “without recognizing any other state or international organization the prerogative of intervening in its internal affairs” (all translations are my own; see here for the print source of these diplomatic notes: the memoirs of General Alfredo Vásquez Cobo, Commander in Chief of the Colombian Expedition to the Amazon, p. 87).

The ensuing diplomatic exchanges paint a very un-Caroline-like situation. Peru justified its call to negotiations in the self-determination of the inhabitants of Loreto (in the Peruvian side) and Leticia (in the Colombian side), calling the episode “the product of spontaneous expressions of uncontainable national aspirations” (Vásquez Cobo, p. 111), and claiming it had not violated, nor renounced, the Salomón-Lozano treaty. Colombia, in turn, complained about Peru’s attempts to “transform an act that for Colombia has essentially the nature of a matter subject to its exercise of interior sovereignty, that repels all interference by a foreign power, into an international affair” (Vásquez Cobo, p. 89). Colombia insisted in Peru’s complicity in the matter, accusing it of sending supplies, weapons and troops to support the rebels.

On December 21^st, the Colombian expeditionary fleet reached the Brazilian port of Belém do Pará, in the Atlantic Ocean, with instructions to sail up the Amazon River, towards the Amazon Trapezoid. The instructions were clear: this was an “unquestionable internal police action”, not an international war (Vásquez Cobo, p. 161-162). In order to ensure this, Colombian authorities warned General Vásquez Cobo, to be extra careful to respect Brazilian sovereignty. The League of Nations also issued similar instructions to the parties (Vásquez Cobo, p. 162-163): Peru had to abstain from intervening in the Leticia affair, limiting its actions to only defending Peruvian territory as expressed in the Salomón-Lozano treaty, whereas Colombia had to avoid violating Peruvian territory and limit its actions to the reestablishment of order in its own territory.

This, however, presented Colombian military leaders with a conundrum: Colombia’s fleet was approaching Leticia from the southeast, in Brazilian territory. Simply attacking the rebels as soon as they were within range of fire, from Brazilian waters, was unthinkable, as it was contrary to international law. The Expedition would need to sail up the Amazon until it was within Colombian waters in the north-eastern bank of the Amazon, very close to the rebel positions in Leticia, and potentially subject to fire from Peruvian regular forces staged in the island directly in front of the port. This not only risked defeat, but also risked having to use Brazilian territory as a staging ground, compromising Brazil’s neutrality (Vasquez Cobo, p. 229).

In order to solve the problem, the President instructed Vasquez Cobo to leave the Amazon River, and sail up the Putumayo, to attack the Peruvian garrisons in Tarapacá. The reasons for this detour were clearly set out:

“First: We will act in a section of the Putumayo where, in accordance with the Delimitation Treaty, Colombia owns both banks of the river. Our freedom of action would therefore be absolute. We can move and attack without fear of violating Brazil’s neutrality, which is a factor that carries immense direct and indirect importance (…). Second: While it seems Peru has staged forces in Tarapacá and organized the defence of said sector of the trapezoid, it has done so in a much lesser degree than in Leticia, both because of [natural] elements and its manpower”. (Vasquez Cobo, p. 230-231).

The plan also included sending an additional force staged in the upper Putumayo to assaults the the Peruvian towns of Güepí and Cabo Pantoja (Vásquez Cobo, p. 202). In sum, this would no longer be the “internal police action” Vasquez Cobo had originally planned for, but a full-fledged war with Peru; something that he did not like. In his memoirs he noted that this “turned a military operation of simple police action, such as the occupation of Tarapacá and Leticia, doable within a few weeks, into something I would not call a war, but at least an international conflict that we should avoid at all cost, of undetermined duration” (Vasquez Cobo, p. 207).

After receiving assurances from the signatories of the Kellogg-Briand Pact that they considered Peru’s support for the rebels a violation of the treaty, Bogotá launched its attack on Tarapacá. The war raged on for two full months, until late April, 1933, when Peru’s President Sánchez Cerro was assassinated, as he supervised troops about to be deployed to war. His successor, General Oscar R. Benavides, sued for peace, and reached an agreement: Peru would hand over Leticia to the League of Nations for administration, while Peru and Colombia negotiated peace. In June 1934, both nations signed a Protocol to the Salomón-Lozano treaty, ratifying its terms, and finalising the Colombo-Peruvian War. As legend has it, Benavides refused to allow the Peruvian flag be lowered from the flagpole in Leticia’s main square; the flagpole was withdrawn whole, with the flag still raised, and returned to Peruvian territory intact, to be received by cheering crowds.

I thus see little resemblance between the Leticia and Caroline incidents, and for that matter little support for the unwilling or unable test in either Peru or Colombia’s positions. Colombia never attacked rebels in foreign soil, nor could it: Leticia was in Colombian territory and the rebels had the full support of Peru. The actual hostilities were, thus, a war between Colombia and Peru, in both Colombian and Peruvian lands. If anything, Colombia’s high level of care not to use force in any portion of foreign soil, even in self defence against rebels occupying one of its own cities, is rather proof of just how relevant territorial integrity was for pre-Charter Latin America, even in dire situations.

In fact, this strong respect for sovereignty and distaste for intervention was markedly present in the contemporary international agreements meant to address the problems arising from non-state actors in time of civil war: the 1911 Agreement on Internal Commotions and Neutrality, and the 1928 Convention on Duties and Rights of States in the Event of Civil Strife (which in 1933 was binding on Brazil, Colombia, Costa Rica, Dominican Republic, Mexico, Nicaragua, Panama, and the United States). In brief, neither of these treaties regulated an open-ended right to attack non-state actors in cases of unwillingness or inability of the host State, but rather requested each State to deal with the threats they encountered inside their own borders. In fact, this understanding of a limited set of options available to deal with rebel forces acting across national lines is precisely the legal discussion at the heart of the Mexican and American positions during the 1916 Punitive Expedition, and exactly the reason why I find its inclusion on Deeks’ chart so surprising.

But more on this in Part II.