"Hot Pursuit" Doctrine

[MattC86]

A quite interesting CFR Backgrounder on the legal doctrine of hot pursuit - originally part of the law of the seas, but now applied by countries seeking to justify cross-border raids. The backgrounder is focused on jihadist infiltration of Iraq over the Syrian border, but apples just as well to the Pakistan/Afghanistan border. It is undoubtedly a thorny legal issue:

Legal experts agree that the principle of “hot pursuit,” as it pertains to sovereign territories versus the high seas, remains unsettled. “Let’s say [U.S. forces] were to wait for a bunch of terrorists to cross into Iraq and launch an attack and then chase them over the [Syrian] border, no one will ever complain about that,” says Scharf. “But to invade another country without an actual pursuit on is going to stretch the idea of international law.”

Peter Danchin of the University of Maryland School of Law says if states want to prosecute someone for war crimes or crimes against humanity, usually they need to have them extradited. “This idea of ‘hot pursuit’ is just an attempt to twist the law of the sea doctrine into a self-defense idea. What you’re talking about is the use of force against the territory of another state,” which brings up touchy issues of state sovereignty. “Let’s say [the jihadis] go into Turkey?” he asks. “You’d have a hard time making the case that the 101st Airborne should go in and take them out without Turkish consent.” Further complicating the problem, Danchin argues, is that the United States is not the sovereign in Iraq. “It has fewer rights as an occupier than it does as a sovereign,” he says, referring to the legal use of force. David M. Crane, an expert on international law at Syracuse University, says if these foreign jihadis are apprehended on Syrian soil, they should be tried under Syrian domestic law. Any armed incursion by U.S. forces into Syria, he adds, would “ be a serious breach of international law and technically an act of war.”

Much more at http://www.cfr.org/publication/13440/.

(Additionally, the CFR just put out a report on the Pakistani Tribal Belt that I believed Westhawk referenced the other day, http://www.cfr.org/publication/16763/ )

Given the renewed attention to Afghanistan, and the calls for American troops to work over the border if necessary (as well as the revelation that the Pentagon and White House have restrained SOF commands eager to chase enemies into Pakistan), I think the legal niceties of the situation are irritating and inconvenient, but essential to the future of the US/Pakistan relationship. . . anyway, check it out for yourselves.

Regards,

Matt

[slapout9]

Thanks for posting and it is just another example of how law enforcment concepts are a great aid in the GWOT,Long War or what ever it is being called now.

[jmm99]

with some legal and histoirical assertions in the CFR article - e.g., on Villa and Caroline examples - as well as lack of specific references to those "some" who might agree with Max Boot's position.

Also, the domestic law enforcement rules on hot pursuit actually would cut agin allowing hot pursuit in this (international) context. I Law is still in the Bonnie & Clyde stage - Slapout will understand that.

Also, there are some practical problems with this very interesting theoretical problem. Right now, I don't have time to say much more.

The question, however, may become a reality.

Daily Times
Friday, July 18, 2008

Robert Gates warns of unilateral strikes

LAHORE: The United States has warned that it can conduct unilateral strikes inside Pakistan if it [Pakistan] does not take measures to stop Taliban activities, Aaj TV reported on Thursday. According to the channel, US Defence Secretary Robert Gates said that action in the Pak-Afghan border area was direly needed to mount pressure on the Taliban. He said it would be better if Pakistan exerted more pressure to check militant activities.

http://www.dailytimes.com.pk/default...8-7-2008_pg1_5

[jmm99]

from CFR article

Under what other legal circumstances could U.S. forces enter Syria?

..... Other experts point to the 1837 Caroline case, in which British and Canadian rebels crossed into U.S. territory and set the steamer Caroline ablaze, killing two Americans in the process. The Americans argued that the British claim of self-defense - the ship was suspected of ferrying arms to anti-British rebels - failed to “show a necessity of self-defense [that was] instant, overwhelming, leaving no choice of means, and no moment for deliberation,” a line of argument often cited by legal authorities to justify anticipatory self-defense.

This account is mostly screwed up (e.g., to point out only one serious error: not "British and Canadian rebels", but rather organized Canadian militia acting pursuant to their colonel's orders). The Brit claim was not "self-defense", but rather McLeod's "combatant immunity" (in modern terms) - which is quite a different thing.

The McLeod-Caroline case, in fact, is a US precedent for the proposition that there is no well-recognized general right of hot pursuit on land.

The following quotes are from an account of that case, published in 1881, 1899:

http://www.econlib.org/library/YPDBo...r/llCy694.html

By way of background, a significant number of US residents (organized into Hunters' Lodges from NY to Ohio) were intent on an invasion of Canada. The US Federal government took a dim view of their activities. Two of their leaders (Mackenzie and Johnson) were indicted and convicted in US Circuit Court for the Northern District of New York for violation of the Neutrality Act of 1818.

The Caroline was a US registered ship which was used to supply some of Mackenzie's bunch, who had seized Navy Island in the Niagara River (in Canadian territory). The McLeod case ensued.

McLEOD CASE, The (IN U. S. HISTORY). In 1837, after the suppression of the Canadian rebellion, or patriot war, a number of Canadian refugees and Americans, using New York state as a base of operations, seized Navy island, in the Niagara river, about two miles above the falls and within British jurisdiction, in order to keep the war alive. Col. McNabb, commanding the Canadian militia, sent a party, on the night of Dec. 29, 1837, to capture the steamer Caroline, which carried supplies to Navy island. The attacking party found her at a wharf on the American side of the river, captured her, after a conflict in which one American, Amos Durfee, was killed, and sent her over the falls in flames. In January, 1838, the British government, in an official communication to the government of the United States, assumed the entire responsibility for the burning of the Caroline.

In November, 1840, Alexander McLeod, while in New York state on business, aroused intense feeling among the people there by boasting of his exploits in the attack on the Caroline. He was arrested, lodged in jail in Lockport, and indicted in February, 1841, for murder. At first, bail was accepted, but this increased the excitement, and he was remanded to jail. The British minister demanded his release, in a note to the secretary of state, for the reasons that McLeod was acting under orders in an enterprise planned, executed and avowed by his superiors; that the question was one of international law, to be settled by the two national governments; that the courts of New York had not the means to judge or the right to decide such a question; and that the British government could not recognize the state jurisdiction of the case, but must hold the government of the United States responsible for McLeod.

In short, the Brits claimed that McLeod had "combatant immunity" (in modern terms) as a Canadian militia member; and the US Federal government agreed with the Brits ! As it turned out, both governments were acting on incorrect data (as found by the jury in McLeod's trial).

The new president, Harrison, and his cabinet were unanimous in considering the British claim just; but the minister was informed that it was an impossibility to release a person confined under judicial process, except by operation of law. At first the administration hoped that Gov. Seward, of New York, would order the prosecuting officer of the state to enter a nolle prosequi. The governor, however, refused to interfere, but directed that the trial, March 22, 1841, should take place before the chief justice of the state. The president then directed the attorney general of the United States to proceed to Lockport, see that McLeod had skillful counsel, furnish them with the evidence of the British government's official avowal of the burning of the Caroline, and take steps to transfer the case to the supreme court by writ of error, if McLeod's defense should be overruled.

New York disgreed, since the murder took place in NY, outside of the Canadian militia's "writ". The criminal action then proceeded in the NY court system.

McLeod was brought before the court [NY Court of Appeals] on writ of habeas corpus, and his discharge was asked on the grounds assigned above. The court, however, held that its jurisdiction over the case was complete; that there was no war in existence at the time in any form; that the burning of the Caroline was not an act of magistracy on the part of the Canadian authorities, since it was committed out of Canadian jurisdiction; that all the persons concerned in the affair were "individuals proceeding on their own responsibility," and liable either for arson or for murder; and that the indictment precluded McLeod's discharge upon habeas corpus.

In short, in the eyes of NY, McLeod was an "unlawful enemy combatant" (in modern terms).

The case finally came to nothing. McLeod, who seems to have been a liar as well as a braggart, proved an alibi in October 1841, and was acquitted; and congress, by act of Aug. 29, 1842, provided that if such cases should thereafter arise they should be transferred to the United States courts by writ of habeas corpus (See HABEAS CORPUS.) The British government July 28, 1842, apologized for the violation of Territory, and regretted that "explanation and apology was not immediately made"; the American government declared its satisfaction; and the case was ended.

So, the UK government felt a fool - it said McLeod was there as a soldier; he and his witnesses said he wasn't there at all. The witnesses who were to testify to his presence at the scene became "unavailable". The original UK protest was thus factually unsound - based on the trial evidence (not necessarily reality).

The important point in I Law (and to the doctrine of hot pursuit) is that the UK government, in the end, apologized for its troops' violation of US territory. Thus, McLeod is a US precedent AGAINST a general right of hot pursuit across international land boundaries.

Of course, other facts - UN resolutions; treaties, executive agreements, etc. - can provide rights of hot pursuit. Which brings us to the next post on that question.

[jmm99]

from CFR article

What are some historical examples of 'hot pursuit'?

History is replete with examples of foreign agents or armies crossing another state’s sovereign borders in pursuit of those suspected of committing crimes against another state. One famous example is the pursuit of Pancho Villa by U.S. forces into Mexico in 1916. The manhunt was in response to a cross-border raid of New Mexico by Pancho’s “Villistas,” though the pursuit failed and Villa escaped.

This is a famous example. Max Boot, The Savage Wars of Peace (2002), devotes a chapter to it (pp. 182-204). Villa's raid on Columbus, NM, on 9 Mar 1916, was reported to Pres. Wilson that morning. He immediately tasked the US Army to set off "in pursuit of Villa with the single object of capturing him and putting a stop to his forays." As we shall see, the Army modified the mission just a bit.

Lead elements of US forces crossed the border on 15 Mar (the main striking force of the 7th, 10th, 11th and 13th CAV would soon follow). The joint congressional resolution, approving the expedition, was duly enacted on 17 Mar (Boot, p.371 n.190). So, domestic US law was satisfied. What about I Law ?

Boot explains that as follows (p.190):

"To give an air of legality to this invasion of another country, President Wilson invoked an old U.S.-Mexico treaty that gave each side the right of "hot pursuit" into each other's territory on the trail of bandits. First Chief [President of Mexico] Carranza agreed to allow American troops to enter Mexican territory as long as the U.S. would agree to let Mexican troops enter U.S. territory in a similar situation in the future."

So, the Villa expedition was supported, in I Law, by both a treaty and an executive agreement.

Boot's tone seems (IMO) to suggest this was a "make weight" legal argument; e.g., dust off an old and unused treaty to justify an "invasion of another country" (his words, not mine). But, not so ...

The treaty had been used before by both sides because of the difficult border situation, where many "hostiles" (my words) attacked both countries from border sanctuaries. An example, from 30 years before, was Gen. Crooks 1885 expedition into Mexico.

In 1882, Crook was recalled to Territory of Arizona to conduct a campaign against the remaining Apaches. Geronimo surrendered in January 1884. Then, deprived of traditional tribal rights, short on rations and homesick Geronimo took flight from the San Carlos reservation in May 1885 and fled to Mexico to resume the life that he loved.

Crook ordered more than five-thousand U.S. troopers and more than 100 scouts, including Al Sieber, Tom Horn and Mickey Free (the white child Cochise was falsely accused of abducting), to take the field in southwestern New Mexico and southeastern Arizona with orders to protect settlers and hunt down the hostiles. As authorized by an earlier treaty with Mexico, Crook dispatched two columns across the border into Mexico and the Sierra Madre with the same orders.

http://www.vfw2951sf.org/index.php?o...d=55&Itemid=64

So, the Villa expedition was not unique - and very legal, based on prior precedents.

What is very legal is not necessarily practical or guaranteed of good results. Thus, Boot notes (p.202):

"When Pershing entered Mexico, Villa had no more than 400 demoralized men. When he left, Villa had some 5,000 confident fighters and was more powerful than at any time since early 1915. Moreover, his resurgence may be attributed, at least in part, to his skill at playing on nationalistic resentment of the armed gringos in their midst."

A little blowback in that aspect of the expedition.

Another aspect of the Villa expedition, relevant to the present, was the Army's "modification" of its tasked mission (Boot at 189-190), which I will paraphrase. Newton Baker (SecWar) conveyed Wilson's order ("capture him") to Hugh Scott (Army CoS), who questioned making war on one man - what if Villa took a train to "Guatamala, Yucatan, or South America". Was the Army supposed to chase him there ? No, that was not what Baker wanted. So, Scott "suggested", what you really want us to do is to capture or destroy "his band". Yup, that's it, said Baker. Thus, military common sense won that day; and its modified task was to end when "Villa's band or bands are known to be broken up."


-------------------------------------------
Bonnie & Clyde

When automobiles became crime tools, law enforcement was faced with pursuit problems caused by ancient jurisdictional boundary lines, in two areas: intrastate and interstate.

The intrastate problem had two aspects. The first was the limit for municipal departments (down to the village constable). The second was the limit for county departments (county lines). The solution was adoption of state statutes, expanding the territorial limits in hot pursuit situations - e.g., county mounties could cross county lines in pursuit. The exact solution varied from state to state (I imagine that Michigan and Alabama have slightly different statutes). In any event, the various agencies within a state have SOPs spelling out what their officers should do in hot pursuit situations.

The interstate problem is more akin to I Law, since our states are sovereign (more or less). The problem of crossing state lines was solved by uniform state acts (e.g., Uniform Act on Fresh Pursuit) and/or by interstate compacts ("treaties" between states). Those solutions were well in place by the 1930's.

See, as examples (you can Google up a ton of stuff):

(snip, but has relevant provisions)
Interstate Rendition. Uniform Act on Fresh Pursuit
Columbia Law Review, Vol. 38, No. 4 (Apr., 1938), pp. 705-709 (article consists of 5 pages)
Published by: Columbia Law Review Association, Inc.

http://www.jstor.org/pss/1116451

(snip, but has relevant provisions)
The Interstate Compact. A Device for Crime Repression
Gordon Dean
Law and Contemporary Problems, Vol. 1, No. 4, Extending Federal Powers over Crime (Oct., 1934), pp. 460-471 (article consists of 12 pages)
Published by: Duke University School of Law

http://www.jstor.org/pss/1189662

International law (except as to high seas piracy, which has always been a "universal jurisdiction") is more in the pre-Bonnie & Clyde state. Cases such as McLeod-Caroline establish that there is no well-recognized general right of hot pursuit on land. However, the right of hot pursuit can be established by treaty (a public document) as in the Villa and Apache examples. It can also be established by executive agreements (which can be public or secret) between heads of state.

The question of hot pursuit by Afghan-NATO-US forces into Pakistan has been the subject of a number of Pakistani news reports over the last 8 months - many more recently. Some evidence suggests that there is an executive agreement covering that issue; but that there is some dispute as to its exact parameters. See attached .doc file (too many URLs and leads to set out in this post); the main texts (not included in the attached file for obvious reasons) have the "rest of the story".

[Fuchs]

No matter what legal experts say (especially those from the pursuing country are pretty much irrelevant) - any more violations of foreign nation's sovereignty by specific countries would only deteriorate the international security situation.

Something like the violation of national sovereignty for such a low-ranking reason like pursuit of some irregular fighters can over time create (reinforce) the perception that a country considers all non-allied countries as fair game.

It's pretty bad that the Israelis and Turks very often cross their borders.
The Turks have the excuse that Northern Iraq is/was not controlled by the central government and the Israelis pay for their behaviour with 'poor' relations to all nearby nations.

It's really not worth it.