On legitimate defences and their patron saints

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“…hitting terrorists who attack systematically the people of a country, no matter they are not inside its territory, is an act of legitimate defence”

Juan Manuel Santos
Minister of Defence of Colombia

Even though the premise is simple and it is based on an ancient institution —if I’m attacked, I have the right to defend myself—, its development is complex. It is not enough, as minister Santos, together with President Uribe^[1], that there is an armed enemy which puts the survival of the State at risk and which is taking shelter abroad, to pursue it and wipe it out.

It is not a matter of discussion the right the State has to chase inside its borders anyone who commits a crime and, if that were the case, to subdue it through force, sticking to the law. But that right becomes exceptional when criminals seek shelter abroad. 

One of the mainstays in the international legal order is State sovereignty. Accordingly, every State must have its territory, its institutions and, of course, its inhabitants respected. But it also admits exceptions because that is not a leeway for committing crimes at the expense of others.

There are extreme situations which can lead to such exceptions, as when a State becomes a threat against the others. In this case, those affected can intervene in it but through a multilateral organization, such as the UN, for example, where the case should be studied and the proper decision should be made.

Several tools exist in order to made the troublesome State to have recourse to the international rules. From censorship motions, condemnations in international courts, economical embargoes, expelling from supranational organisms or even armed intervention through multinational troops.

Weakness or tolerance may be punished too. If a State does not want to or is not able to judge those who inside its territory commit crimes against humanity, war crimes or genocides, the International Criminal Court (ICC) is granted full jurisdiction to intervene instead of the accomplice or weak State.

Crimes against fundamental rights may also prompt international intervention. Leniency, complicity, omission, negligence, etc. This time, international courts, such as the Inter-American Court of Human Rights, may sentence States not only to repair victims but also to investigate and prosecute those liable.

Co-operation between neighbouring States is also possible, and that would allow, for example, the "hot pursuit", that is, the incursion of foreign armed forces into a neighbouring country in order to prevent the criminals to run away. This is the case of the recently signed agreement between Brazil and Colombia, which allows plane flights of both countries up to 50 kilometres inside the common border limit.

As it can be clearly seen, there are a whole set of options which can be chosen in order to pursue criminals wherever they are, without forgetting the existence of an international police which respond to arrest warrants, the fact that extradition treaties can be signed, etc., but any of these measures must stick to rules previously negotiated.

Breaking these rules erodes the international law and conspires against the coexistence of peoples. As justice of one’s own hands is not allowed for individuals, it is also not allowed for States. These coexistence norms were achieved after the countless wars from the past, specially the one caused by the Axis countries which in turn triggered World War II.

If for our case, presidents Correa or Chávez, or their subordinates, shelter FARC and it is impossible to obtain their co-operation to capture them, the Colombian government should have turn to the international instances. At the time, Uribe threatened the Venezuelan president with suing him before the International Criminal Court, but in the end he preferred the diplomatic channels, which was the same thing he should have done with Ecuador. Of course, it is not the same thing to face Venezuela than Ecuador.

Anyway, impunity for rulers is not as long and wide as it used to be. The arrest warrant issued by the ICC against Omar Al Bashir, President of Sudan, and the help asked to the UN Security Council to make it effective, shows that it is indeed possible to take a head of state into trial.

Other precedents in this sense also exist, such as Slobodan Milošević (former Yugoslavia) and Charles Taylor (Sierra Leone), both of them submitted to UN international courts. This should be a meditation issue for those in power who believe they can commit crimes as they wish, with no curbs.

The wheels of Justice grind slow, but at the end, they grind.

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[1] At a community council meeting in Urrao (Antioquia): “They shall not dream with keeping themselves in impunity, because they are abroad, those ELN or FARC bandits. They’ll be captured. We go on searching for them anywhere under by responsibility. (…) Those bandits should go and find hideouts in outer space, because we’ll get them in this planet.”

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This article was originally published 12 March 2008 in equinoXio. Translated from Spanish by Julián Ortega Martínez

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