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

As evidenced in Part I, Latin American states have not been keen to allow expansive interpretations of the rules for use force in foreign soil. Latin America is a region historically subjected to foreign intervention, and as such, the rules it designed, especially in the pre-Charter era, were always very much thought out from a perspective of protecting “the invaded”, not enabling “the invader”.

This was particularly evident for Mexico, a country very much affected by foreign intervention throughout the 19^th century. Mexico’s distaste for foreign intervention would not change after the turn of the century, and it would be evident throughout the entire duration of the 1916 crisis, which is why I have been so surprised to see it listed so frequently as an early example of the unwilling or unable test.

Perhaps unsurprisingly, though, the historical retelling of the 1916 Expedition changes depending on whose sources one reads. While American sources tell the story of the “Punitive” Expedition and America’s campaign to sanction Francisco “Pancho” Villa across the border line, Mexican sources, such as renowned historian Bertha Ulloa, rather speak of “the Resisted Intervention”, and remember it as the time when First Chief of the Revolution, Ventusiano Carranza, stood his ground against an overwhelming American power, in defence of Mexican sovereignty and national dignity. In this retelling, more than an early example of “unwilling or unable”, the 1916 Expedition is rather an example of early pushback against it.

In 1916, Mexico and the US were facing a complex diplomatic situation. After long, careful negotiations, American President Woodrow Wilson had finally decided to recognize First Chief Carranza as the de facto ruler of Mexico. This enraged Pancho Villa, his former star General, who had put forth his own competing claim to the Presidency. The hurt pride of Villa turned into hatred, and on March 9^th, 1916, he crossed into US territory, exacting his revenge on the small town of Columbus, New Mexico.

Wilson’s response was immediate, demanding Mexico to pursue, capture, and exterminate Villa (Fabela, p. 162). Carranza, who had no love for Villa either, responded rather willingly. He reminded the US government of the 1880 and 1884 incursions of Native American rebels from the US into Mexican territory and the agreements reached in that time so that US and Mexican armed forces be allowed to pass freely from one territory to the other in order to pursue and punish the “bandits”, offering the same solution for the Villa problem. Through a diplomatic note, Mexico requested “the permission necessary to let Mexican forces cross into American territory in pursuit of those bandits, acknowledging due reciprocity in regard to forces of the United States crossing into Mexican territory if the raid effected at Columbus should unfortunately be repeated at any other point of the border” (original Spanish in Fabela, p. 163, English translation in AJIL Vol. 10 No. 3). Three days later, US Secretary of State Lansing replied accepting the Mexican proposal but adding that the United States “understands that (…) the arrangement is now complete and in force, and the reciprocal privileges thereunder may accordingly be exercised by either government without further exchange of views” (See AJIL Vol. 10 No. 3, and Fabela, p. 172 for Spanish translation).

Clearly, both states understood the note differently. Mexico sought to grant permission to the United States to enter Mexico if another raid occurred. The United States, however, assumed the right had been given outright. Whether this was an honest mistake is subject to controversy, particularly considering the admission of Colonel Frank Tompkins, a member of the Expedition, who called the stated interpretation of his own government “false, not founded on fact, and [in] danger of being challenged by the troops of Mexico”. Whichever the case, Wilson based the legality of his now famous expedition on this note (and his interpretation of it), not the unwillingness or inabbility of the Mexican government.

Carranza responded swiftly to what he considered a violation of Mexican sovereignty, and demanded the US sign an agreement with Mexico to regulate the presence of US troops in Mexican territory. Carranza would limit the number of men to one thousand; the number of days they could stay, to five; and the distance they could travel into Mexican lands, to 60 kilometres, demanding that the US started withdrawing its troops upon signing. The US, however, refused, contesting the proposed limitations and claiming any such agreement should not contemplate the troops already in Mexico, given their exclusively “punitive” nature (Ulloa, p. 69). This dynamic, with Mexico demanding the immediate, unconditional withdrawal of all US forces from Mexico and the US seeking a conditional, progressive one, allowing for suspension in case of further raids, would continue throughout all of 1916, in several different rounds of negotiations. Carranza’s position, however, is famous for its unwillingness to yield. In fact, at several points, Carranza himself specifically refused to refrend the agreements his negotiators reached, insisting that negotiations could only move forward once the United States agreed to the unconditional and immidiate withdrawal of troops (Ulloa, p. 96).

While negotiations were ongoing, on May 5^th, 1916, Villa forces launched a new cross-border raid, this time in Glenn Springs, which prompted an additional 400 American troops to cross the border, this time clearly without any possible misunderstanding as to lack of Mexican consent. In a long and aggressive diplomatic note, dated May 22^nd, Carranza exploded on Wilson: “[a]t all events, the Mexican Government, having expressed clearly its nonconformity with the crossing of additional troops into Mexico, is forced to consider this as an act of invasion of its territory and, in consequence, will be obliged to defend itself against any body of American troops on its soil” (See Fabela, p. 216, for Spanish original, and see here for English translation).

For Mexico:

“[The] attitude of the American Government, which was the one which expected to cross the boundaries at such times as might be necessary, in pursuit of the bandits, is clearly indicating its intention of preparing to penetrate further into Mexican territory than the purposes of defense would seem to warrant. The punitive expedition from Columbus, as it has been called, did not have, according to statements of President Wilson, any further object than to capture and punish the band guilty of the raid, and was organized under the supposition that the Mexican Government had consented thereto. Nevertheless it has shown an attitude of manifest distrust toward the Mexican Government and a spirit of such absolute independence that it can not but justly be considered as an invasion without Mexico’s consent, without its knowledge and without the cooperation of its authorities”.

The United States, evidently, disagreed, and responded on June 20^th, through a long (and also aggressive) note, stating that:

“It is in fact protection to American lives and property about which the United States is solicitous and not the methods or ways in which that protection shall be accomplished. If the Mexican Government is unwilling or unable to give this protection by preventing its territory from being the rendezvous and refuge of murderers and plunderers, that does not relieve this Government from its duty to take all the steps necessary to safeguard American citizens on American soil. The United States Government can not and will not allow bands of lawless men to establish themselves upon its borders with liberty to invade and plunder American territory with impunity and, when pursued, to seek safety across the Rio Grande, relying upon the plea of their Government that the integrity of the soil of the Mexican Republic must not be violated” (emphasis added).

These diplomatic exchanges are clear: Mexico argued the US needed Mexican consent to send troops into Mexico. The US, explicitly using the phrase unwilling or unable, felt it had a right to send troops into Mexico. At this point, some might feel inclined to vindicate Deeks’ claim that the Expedition is a 100 year old precedent for the unwilling or unable test. I would argue, however, that things are more complicated than this.

Customary international law evolves through breach. An established rule is challenged enough times by enough non-compliying states to consider the rule altered. This was something that First Chief Carranza was very well aware of. As negotiations were ongoing, he told his negotiator team he would not accept any arrangement that created “[any] precedent that may later be of fatal consequences for our motherland” (Fabela, p. 197).

Carranza’s stubborness proved successful. On early January, 1917, and with both countries at the brink of open war, Wilson yielded. By February 5^th, his troops were gone; and in the words of Mexican negotiator Luis Cabrera, they were gone just as they had come: “without conditions, without an agreement that served as precedent, tacitly recognizing with their exit the injustice they had committed with their entry” (Ulloa, p. 97). The 1916 crisis, therefore, rather represents a case of resistance to an unwilling or unable rationale.

If we look at the state of international law in the Americas in the early 20^th century, we will see few instances where cross border, non-consented uses of force against non-state actors were carried out without resistance (and this includes the Caroline incident!). In fact, as I briefly mentioned in Part I, the relevant treaties in force took a limited approach to the problem of non-state actors.

The 1928 Convention on Duties and Rights of States in the Event of Civil Strife, ratified by the United States, included four fundamental obligations, none of which related to a unilateral right to use force in the territory of another state in cases of unwillingness or inability. According to this treaty, member states were obligated to (i) prevent their inhabitants from participating in, gathering elements, crossing the boundary or sailing from their territory for the purpose of starting or promoting civil strife; (ii) disarm and intern every rebel force crossing their boundaries; (iii) forbid the traffic in arms and war material, except when intended for the Government; and (iv) prevent the arming or equipping of any vessel seeking to favour the rebellion. Similar obligations were included in the 1911 Agreement on Internal Commotions and Neutrality, in force between Ecuador, Bolivia, Peru, Colombia, and Venezuela.

In essence, no rule akin to the modern “unwilling or unable test” existed in contemporary treaty practice, and exceptions allowing for cross-border hot pursuit of outlaws were specifically agreed to by States through international agreement. This was the procedure followed by the United States throughout its dealings with Mexico. The 1916 Expedition was the exception, not the rule. After all, if any doctrinal debate existed at the time, it was not surrounding a test similar to modern “unwilling or unable”, but, rather, whether there existed a right to non-consented cross-border “hot pursuit” of rebels forces (i.e. a right to continue chasing a bandit across border lines), and even this was contested in contemporary scholarship).

Put in context, therefore, neither the 1932 Leticia Incident nor the 1916 Punitive Expedition demonstrate a consistent pre-Charter practice in Latin America regarding the unwilling or unable test. To the extent the 1916 crisis deals with it, it mostly shows how Mexico resisted the US’ attempts to unilaterally force the standard unto it. The only way the 1916 Expedition can be considered a valid precedent for the unwilling or unable standard is if one completely and utterly ignores both Mexico’s strong opposition to it and the treaties existing at the time.

This is not new. Its a pattern that seems to be repeating in today’s iteration of this same debate, with the positions of some powerful Western states taking preeminence over others. In the words of Jutta Brunnee & Stephen Toope, “[g]reat caution is warranted before accepting the argument that changes in customary international law can be produced through the practice of a small number of lead-States combined with the alleged acquiescence of a largely silent majority”. In any case, it should not be at all shocking that every time a group of invading States argues for the existence of a right to invade another, there will be another group of invaded States that argue against it. This was true in 1916, and is still true in 2018. Chosing one argument over the other based solely on familiarity is not good law. International law requires a more stringent test. Sadly, it seems 102 years has not been enough time for us to learn this lesson.