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The Dangers of GroupThink and Legal Precedent in International Law

The Dangers of GroupThink and Legal Precedent in International Law | 22/09/14
by John Brian Shannon John Brian Shannon

Photographer: Hasan Jamali/AP Photo F/A-18 fighter jets take off for mission in Iraq from the flight deck of the U.S. Navy aircraft carrier USS George H.W. Bush

FILE – In this Monday, Aug. 11, 2014 file photo, F/A-18 fighter jets take off for mission in Iraq from the flight deck of the U.S. Navy aircraft carrier USS George H.W. Bush, in the Persian Gulf. U.S. military officials said American fighter aircraft struck and destroyed several vehicles a day earlier that were part of an Islamic State group convoy moving to attack Kurdish forces defending the northeastern Iraqi city of Irbil. (AP Photo/Hasan Jamali)

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;

  1. Attack them (other than as requested by the Iraqi government)
  2. We do not have the right of ‘hot pursuit’
  3. 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;

  1. Rid that country of WMD weapons that were targeting America (there were none)
  2. Capture the hundreds of terrorists that were in the country just waiting to attack America (there were none)
  3. 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?

Including Syria.

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.

Related Articles

ISIS: The difference between War and Counter-terrorism

ISIS: The difference between war and counter-terrorism | 14/09/14
by John Brian Shannon John Brian Shannon

Scene at the Signing of the United States constitution.

“Scene at the Signing of the Constitution of the United States” by Howard Chandler Christy – The Indian Reporter. Licensed under Public domain via Wikimedia Commons

When is a War a War?

Due the the language of the United States constitution, the term ‘war’ as it pertains to the U.S. launching a war, is a legal one where the President has the ability to declare war on another country and his only obligation going forward is that he must formally notify Congress within 30 days of declaring war. Officially it is Congress that declares war, just for the record. The President is the one who makes the decision to go to war and who initiates the U.S. military action.

Oh, and Congress must approve – or it’s instantly over

Congress then has the power to order the troops home and becomes responsible for all that happens in that afterwards.

Commonly, a President has many meetings with different members of Congress leading up to a declaration of war and it’s no surprise to that august body when they receive the official notification that the United States is already at war.

The legal definition of war, is simply; one country, militarily fighting another country or countries

It could also be an expanded declaration of war against more than one country.

During the Cold War for example, had it suddenly turned into a ‘Hot War’ the United States would have been at war with all the members of the Warsaw Pact nations (and possibly other nations too) not just Russia.

Had we gone to war against the Soviet Union during the Cold War, our #1 Soviet enemy would of course have been Russia, but what it little-known is that Ukraine would have been our #2 Soviet enemy. Funny how things work out. Now Ukraine is our ally and wants to join the EU. Ain’t peace great?

Anyway, the President is the only one who can declare war. Congress must approve it within 30 days

The language is very clear. It must be a country that the United States is declaring war against, the President must inform Congress within 30 days — and then a majority of Congressmen/women must approve the war.

Nowhere in the constitution does it say that the U.S. President can declare war on an organization such as ISIS, Al Qaida, or a corporation with evil intent (think James Bond’s Zorin Industries in ‘A View to a Kill’) the President has only the authority to declare war on a country or a group of countries.

Until the constitution is changed

But nobody is talking about that.

Some people have said that President Obama ‘must declare war’ against ISIS and Al Qaida. That cannot be done under the U.S. constitution.

Counter-terrorism operations vs. War

In this, U.S. Secretary of State John Kerry is quite correct when he calls the action against ISIS a ‘counter-terrorism’ action. It’s not a war. ISIS is not a country. As a former US Navy Lieutenant, John Kerry could probably still recite from memory the part of the constitution pursuant to US military involvement as directed by the U.S. Commander in Chief. When he says that this is not a war, you can trust him, it’s not a war. That covers the United States military aspect.

Which leaves the President the option of using the CIA to carry out the wishes of the President. Unlike the U.S. Defense Department, the CIA works directly for the President of the United States. However, there are some legal requirements here too. The President must write out a ‘security certificate’ which is a numbered document (commonly called a Presidential finding) authorizing a certain action or outcome, or potential actions/outcomes.

Although the order may be given to CIA over the phone for instance, a quick follow-up with the written finding must soon appear and it has been informally termed the CYA document (Cover Your A$$ document) in past years. But it also works to cover the President too in the case of field operatives who potentially at least, could get carried away (‘running away with the op’) and cause the President some amount of embarrassment.

Depending on the scope of the operation, the CIA senior staff may then requisition equipment, pilots, fighter jets, ships, etc. from the U.S. military as required and in order to carry out the President’s instructions.

All of this can happen in seconds with modern communications. A U.S. military pilot could be flying a sortie or returning to base from a training exercise one minute, and then be redirected instantly and under the authority of the President (via CIA forward air controllers) anywhere in the world.

Even though the pilot, in both cases is working for the Commander in Chief, in one case he is flying for the U.S. military and is bound by one set of rules and protocols, and seconds later is flying for the CIA with a different set of rules and protocols. (This means that the rules of engagement may be different)

In an undeclared war situation, if you’re dropping bombs on people, you better hope that somebody, somewhere, in CIA, has a signed Presidential finding covering your, ahem, sortie, or (under Geneva Conventions rules that military members of all nations must adhere to) you could find yourself in very deep trouble. That’s International Criminal Court (ICC) kind of trouble.

In a declared war situation, there are no legal problems for a U.S. military pilot. The President has declared war, and the Congress will or already has, approved it. Even if Congress later denies the application, the pilot is still covered as it is in the President’s mandate to declare war, even if that declaration is later rescinded.

To go on the offensive against ISIS which is clearly an organization and not a country, at this point (although it does have a future goal of becoming one, hence the recent name-change to ‘Islamic State’) cannot legally be done using the U.S. military. This has been and will continue to be, a CIA counter-terror operation (or more properly, a series of counter-terror operations) under the direction of the President of the United States.

And just to keep things in their proper perspective; “There is no credible information that [ISIS] is planning to attack the United States and there is no indication at this point of a cell of foreign fighters operating in the United States – full stop.”Matthew Olson, outgoing head of the National Counterterrorism Center

People who call talk shows asking the President to ‘just declare war on ISIS’ haven’t read the constitution. ISIS is not a country, it’s an organization, and as such, the President cannot declare war on it.

But he can mount as many counter-terrorism operations against it as he likes — until it begins to look like a war.

Then, conceivably, the Congress could call the President to testify under oath, how it is that he is not conducting a war.

Of such stuff were the Iran-Contra hearings made. (And other quasi-military actions/Congressional hearings in decades long since past)

Almost everyone agrees that the West needs to deal with ISIS the organization, now. But in these cases a President has a lot on the line and it’s completely understandable that he has exercised caution.

It would be so much easier to let things roll forward until ISIS really is it’s own country (the ‘Islamic state’ as an actual nation-state) and then deal with them in the conventional war sense if they step out of line and commit acts of terror. But a lot could happen in the meantime. Leaving the situation to drift is too risky.

Other nations don’t have the U.S. constitution to follow and can invade Iraq to hunt and kill ISIS fighters all day long with no thought of impeachment, nor of having to answer to Congress ‘for waging a war that you say is not a war but looks an awful lot like a war.’

President Obama has proceeded very prudently along this timeline, neither; 1) committing the U.S. military under false pretenses, nor; 2) under the aegis of CIA, ordering too many attacks or highly intensive activities (which would make it look like a war) against the ISIS organization.

The right course and the legal course is the one that President Obama is on. Signing a weekly Presidential finding to hit certain and known blocks of terrorists, and sending military or paramilitary advisors (under the control of CIA) to Iraq to advise the government of Iraq and the Kurdish provincial leaders on how to best fight ISIS and related groups, sends the right message to ISIS and our allies, and significantly, is the most legal course of action available at this time.

As more allies join this movement to disrupt and contain ISIS, particularly Middle Eastern members of the now-forming coalition, more advisors can be sent to the region and few, but effective, U.S. counter-terror operations can be mounted against the ISIS organization.

Many U.S Presidents have said this in different ways; “The United States is a country of laws.”

President Obama is setting a fine example, and so far has resisted the urgent calls to ‘declare war’ on ISIS — something the U.S. constitution does not give him nor the Congress the power to do anyway — at least until the day ISIS becomes a legally recognized country.

Mounting few, but effective, counter-terror operations against the ISIS entity is fine. Coordinating with allies in a coalition against terror is fine. Assisting coalition members in the counter-terrorism role by supplying any reasonable number of (CIA) paramilitary advisors is fine.

Which is exactly what President Obama has been doing all along.