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The Dangers of GroupThink and Legal Precedent in International Law | 22/09/14
by John Brian Shannon
U.S. Secretary of State John Kerry told a U.S. Senate hearing on Sept. 17 that in helping to defend Iraq, “you have a right of hot pursuit, you have a right to be able to attack those people who are attacking you as a matter of self-defense.” — Bloomberg
Which is great if it were true. But it’s not
ISIS, as odious as they are, aren’t attacking the U.S.A., nor have they staged any attacks inside America. Ergo, they’re not attacking us.
Consequently, we have no right to;
- Attack them (other than as requested by the Iraqi government)
- We do not have the right of ‘hot pursuit’
- And when they’ve yet to attack us, it’s hardly self-defense.
Although judging by the yelping about “the threat ISIS poses to America” you’d think that the whole eastern seaboard had been blown into the middle of the Atlantic Ocean.
Yes, two Western journalists were beheaded. But they knew the rules better than anyone, they knew they were risking their lives for the story or their agency. They knew beforehand, nobody had to tell them. It’s the way it is with journalists all over the world.
Guess how many journalists have been killed covering stories since 1992? You may think only 5 or 10 — but you’d be wrong. It’s a very dangerous job to go walking around in a war zone.
That’s why 1,072 journalists have died on the job since 1992 and 39 are still missing
It’s a dangerous job, get it? And for what, a story? Not good enough. Really, what is worth losing your life over?
Two Western journalists beheaded, as horrible as that is, does not constitute grounds for war. It doesn’t pave the way “to be able to attack those people who are attacking you as a matter of self-defense.”
Two people, who knew the risks better than anyone took a risk that they decided that was a calculated risk, and they got caught in a war zone and paid the ultimate price. End of story.
Nothing we do now will bring them back
Conversely, what we do now may get many more journalists and civilians killed, especially the path that we suddenly find ourselves on — by going uninvited into Syria to bomb people — some of whom will be innocent people who get killed by Western bombs.
Is international Hot Pursuit legal?
While ‘hot pursuit’ is legal in maritime incidents under certain circumstances — there are no laws on the books permitting it across international boundaries on land. Now, that’s not to say that it hasn’t happened, because in a small number of developing countries it has happened. But that doesn’t make it legal.
And what’s more, we should take great care if we’re setting legal precedent via our actions.
One such action which is adding credence to (in slow motion) the setting of a legal precedent, is the principle of Preemptive War whereby we, based on scant evidence (and later found to be false evidence) peremptorily attacked Iraq to;
- Rid that country of WMD weapons that were targeting America (there were none)
- Capture the hundreds of terrorists that were in the country just waiting to attack America (there were none)
- Capture Saddam Hussein and put him on trial for the 9/11 attacks (which he had nothing to do with)
All the reasons for going to preemptive war in Iraq ultimately proved to be false — the U.S. Iraq Study Group said so — and its Chairman, Mr. Leon Panetta served the U.S. in many high-level capacities — including Director of CIA and Secretary of Defense. So you can take the U.S. Iraq Study Group findings to heart.
That about covers my opinion about Preemptive War.
The ‘Hot Pursuit’ of suspected criminals plying international waters is legal due to the UN Law of the Sea Treaty which all nations observe
It’s one thing for the Coast Guard or Navy ships to chase a ship engaged in illegal activity (either summary or felony offenses) in our waters — where during the course of the chase it leaves our waters and enters the waters of a second country. That is a widely recognized application of existing international law.
For example: In Washington State waters, under the existing Law of the Sea treaty (which all countries observe) if a suspect ship escapes into Canadian waters, the U.S. Coast Guard or the U.S. Navy may decide to continue the chase into Canadian waters to capture the suspect ship and its crew.
During such incidents, Canadian Navy or Canadian Coast Guard ships offer their assistance to the U.S. Navy or U.S. Coast Guard ships in Hot Pursuit — and the reverse is true when the Canadians are chasing scofflaws into U.S. waters. It’s a common thing.
And those are fine examples of the application of Hot Pursuit. And of international cooperation by the way. I’d like to see more of that sort of thing.
However, The Law of the Sea Treaty only covers the maritime environment and nowhere does it allow Hot Pursuit across land
My opinion about Hot Pursuit while crossing international land boundaries is that it’s illegal and in no way should we be attempting to set legal precedent — in a third country of all things.
It’s one thing if, in our own country we have a solid case whereby a known criminal has escaped and a police officer is pursuing that individual and the officers pursue the suspect across the border, *where one of the countries is our own country, and the other country is a neighbour country.*
That case can be made.
U.S. police chasing a criminal suspect into Canadian territory — everyone can wrap their heads around that. Canadian police chasing a suspect car into the U.S., is understandable. And that precedent has occurred and nobody minded. The official decision on the matter can be summed up in the following statement; “No harm, no foul.”
The same could eventually hold true with air chases. If a light plane was flying from U.S. airspace towards Canada with intent to crash the airplane into an office tower in Canada, it would be quite acceptable for the USAF to pursue that plane and force it down — even after the plane had managed to cross into Canadian airspace.
The United States should expect the same courtesy from the Royal Canadian Air Force were a light plane flying from Canadian airspace into the United States — whose pilot intended to crash into an American building or infrastructure.
But it’s a very different thing to *fly from one country where we’ve been granted permission to fly military missions, into another country where we haven’t been granted permission to fly military missions.*
Neither of those countries are our country. And that makes it a crime.
Not only that, we’ve hit just as many innocent people as criminals over the past 10 years in Afghanistan, Iraq, Yemen, Somalia, and other nations.
It sets a terrible precedent. It besmirches the reputation of the U.S. and participating coalition member nations. And the whole situation works to prevent some very good precedents from getting a fair hearing. Perception is almost everything and if the public believes that preemptive war is unwise and that Hot Pursuit over land (in third countries) is unwise, then any good case for it is thereby greatly diminished.
There are good cases for ‘Hot Pursuit’ but Syria isn’t one of them
While France has joined the U.S. in airstrikes in Iraq, President Francois Hollande ruled out attacking in Syria.
“We’re very concerned with the aspects of international law,” Hollande said last week at a press conference. “We’ve been called in by the Iraqis; we’re not called in on Syria.” — Bloomberg.com
Secretary of State John Kerry’s assertion that somehow the Law of the Sea Treaty, or that the high level of security cooperation between Canada and the U.S., or that because it has rarely occurred in developing nations — allows the U.S. to drop bombs on poorly identified people in Syria (a country which we do not have permission to enter) is just not acceptable.
We wouldn’t allow India, Argentina, or Poland (although we ‘like’ all three countries) to engage in Hot Pursuit over United States airspace to shoot down a suspect aircraft, or to bomb suspected ISIS members inside the United States.
So, if we wouldn’t let them do that to us, why would we think we could do that to them, or any other country?
Other than Canada operating along its border with the U.S. and contributing to overall North American security, what country would you allow to pursue airborne criminals into the United States to shoot them down inside the United States? Would you allow Mexico? How about Brazil, or Venezuela?
Which is why we must be very careful of the precedents that we are setting out there.
Once legal precedent is set in law, then we too will be bound by them — whether we like it nor not
Do you really want China or Angola or Bangladesh in legal Hot Pursuit into American airspace to shoot down one of their suspected terrorist criminals? (Nothing against China, Angola, or Bangladesh) it’s just that once the precedent is set in law — it is set and is thenceforth legal and acceptable behavior for all countries — even faraway ones!
But the growing use of this principle raises touchy issues concerning territorial sovereignty and may open a dangerous legal can of worms.
Some legal scholars say it is a bastardization of an old law of the sea, which allows ships on the high seas to pursue and overtake other ships if a crime is committed on the former ship’s sovereign waters.
They remain unconvinced that the principle carries any legitimacy on land.
Any armed incursion that violates another state’s territorial borders and is not in self-defense or sanctioned by the UN Security Council constitutes an act of war, clear and simple. As an extension of this, some argue that rather than limiting the size of conflicts, “hot pursuit” may be misinterpreted by governments as a provocation that could spark wider wars or lend greater legitimacy to nations that launch preemptive strikes under the legal mantle of “anticipatory self-defense.”
Another concern is that the doctrine, if implemented on a more formal or wider scale, might fully supplant other legal channels, such as the extradition process. — Lionel Beehner
In our rush to punish ISIS and prevent it from making territorial gains inside Iraq, we should not be setting legal precedents which we might deeply regret later
If we do it enough times, then other countries will feel they can do it too. And the next thing you know it’s the new norm.
At that point, any country could then fly into any other country to bomb suspected ISIS, Al Qaida, or other terrorists.
Until international law changes, it is illegal to enter the air or land space of any country without permission — although it is legal to engage in Hot Pursuit on the ocean, where a ship is exiting our waters in an attempt to avoid capture by law enforcement or evading Navy or Coast Guard maritime inspection.
Let’s not set up a legal precedent that will allow any country to use our presently flawed interpretation of Hot Pursuit to enter our air or land space without our permission.
- U.S. Conducts First Airstrikes in Syria on Islamic State (Bloomberg.com)
- What is Groupthink? (Psychology.About.com)
- “The Doctrine of “Hot Pursuit”: A New Application” (C. K. U. Michigan Law Review, Vol. 26, No. 5 pp. 551-555 — March 1928)
- “The juridical basis of hot pursuit” (British Year Book of International Law 20: pp 83–97 Glanville L. Williams — 1939)
- “Hot Pursuit” West’s Encyclopedia of American Law
- The Right of Hot Pursuit in International Law, (Brill–Martinus Nijhoff, Nicholas M. Poulantzas — 2002)
- “Doctrine of hot pursuit: A functional interpretation adaptable to emerging maritime law enforcement technologies and practices” (Ocean Development and International Law 20 (4): 309–341 Craig H. Allen — 1989)
- “Can nations ‘pursue’ non-state actors across borders?” (Yale Journal of International Affairs: pp 110–112 Lionel Beehner — Winter 2011)