Playing Diplomatic Hardball with FARC

American Thinker 
ByPaul Leaf and Eli Sugarman
On 9/11, the United States learned that the gravest threats to international peace and security increasingly come from actors operating within states, not from states themselves.  The international community, via United Nations Security Council Resolution (UNSCR) 1373, ostensibly recognized the seriousness of the threat and imposed binding legal requirements on all states to take concrete measures to combat terrorism.  This resolution requires all states, inter alia, to "refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts," to take "necessary steps to prevent the commission of terrorist acts," and to "deny safe haven" to persons involved in terrorism.  Most importantly, it was issued under Chapter VII of the UN Charter, meaning that it may be enforced through sanctions and armed force.
Despite the binding obligations of UNSCR 1373, some states are either unable or unwilling to take action against terrorists operating from within their borders.
Consequently, U.S. counterterrorism policy relies on two approaches:
(i) cooperation, technical assistance, capacity building, and information sharing with states that are willing but unable to fight terrorism; and (ii) unilateral strikes against terrorists, their training camps, and, in some cases, the government of a harboring state that is unwilling to control its territory and honor its international commitments.
This second policy rejects the unbending rule that the territory of a state is always inviolable and thus may never be the object of force taken by another state.  While recognizing that the inherent right of self-defense and states‘ counterterrorism duties under UNSCR 1373 do not destroy the concept of territorial sovereignty, U.S. policy demonstrates that it cannot be upheld in absolutist terms.  Respect for states‘ borders must yield when nations that hide behind the mantle of territorial sovereignty are funding, harboring, or arming terrorists.
These counterterrorism policies do not embody merely the preferences of the Bush Administration.  Even Senator Barack Obama, the Democratic presidential candidate who has taken great pains to distance himself from the Bush Administration, is willing to send troops to Pakistan unilaterally if that country fails to act against Islamic extremists on its border with Afghanistan.  Other countries, including Turkey, Israel, and Colombia have demonstrated a similar willingness to conduct such cross-border strikes.  So, the Bush Administration is not alone in eschewing an approach that gives dispositive weight to the right of territorial sovereignty by completely ignoring the right of self-defense and states‘ UNSCR 1373 obligations.
Unfortunately, many countries have not fully embraced the realities of the post-9/11 world.  For instance, China and Russia -- both permanent members of the UN Security Council -- are among the strongest proponents of the absolutist position that borders are inviolable at all times.  They may fear that allowing democratic countries to violate the sovereignty of rogue states -- either by passing Security Council resolutions that call into question a country‘s ability to control its territory or by authorizing the use of force -- could ultimately serve as a pretext for increased scrutiny of their own repressive domestic policies.  China and Russia know that their views cannot be ignored at the UN since both are armed with a Security Council veto.  Hence, despite having created arguably the most fundamental legal obligations underpinning the global war on terror, the UN will likely remain paralyzed in the face of the more crucial debate about implementation of UNSCR 1373 because enforcement will at times require territorial sovereignty to give way to more pressing concerns.
Other countries similarly view territorial sovereignty as an unbending right.  In Latin America, for instance, the Organization of American States (OAS) recently rejected Colombia‘s strike against terrorists operating in Ecuador based solely on the fact that Colombian forces crossed Ecuador‘s border.  In drawing this legal conclusion, the OAS failed to consider Colombia‘s right to use force in self-defense and Ecuador‘s duty to deny terrorists a safe haven -- both recognized by international and regional law.  As we will show, the UN will likely acquiesce to the OAS approach because China and Russia value preserving their absolutist conceptions of territorial sovereignty and protecting their economic ties in the region more than fighting terrorists who do not directly target them.
Contrary to the OAS‘s position, we argue that the right of territorial sovereignty does not apply unrestrictedly and without any exception.  Rather, the right to use force in self-defense, when made necessary by another state‘s failure to honor its counterterrorism duties under UNSCR 1373, can outweigh sovereignty concerns.  Colombia‘s cross-border strike demonstrates this principle.  International condemnation of the incursion illustrates how multilateral forums in general -- not just the UN -- struggle to effectively balance competing rights of territorial sovereignty and self-defense in responding to contemporary security threats.  We conclude by outlining two alternative approaches the U.S. can take in response to this situation.
Colombia‘s Surgical Strike Against Terrorists Encamped in Ecuador
The Revolutionary Armed Forces of Colombia (FARC), a terrorist group renowned for kidnapping, drug trafficking, and massacring civilians, has been waging a violent forty-five-year war against the democratically elected government in Bogotá.  On March 1, 2008, Colombia‘s U.S.-backed armed forces bombed a FARC jungle base 2,000 feet inside Ecuadorian territory.  Colombia had previously informed presidents Hugo Chavez of Venezuela and Rafael Correa of Ecuador that the FARC shelter within their borders, but both presidents failed to take action.  (Prior to the raid, Colombian officials had identified some 32 FARC camps operating freely on Ecuadorean soil.)  The cross-border raid killed the group‘s deputy commander, Raul Reyes, along with twenty-four other members.  The surgical strike would seem a near-perfect example of the targeted use of military force to neutralize a pressing terrorist threat: it resulted in zero collateral damage and provided Colombian authorities with compelling documentary evidence of links between the Venezuelan and Ecuadorian governments and the FARC.
While Interpol examined the seized evidence to verify its authenticity, initial reports detailed a "strategic alliance" between Chavez and the FARC.  (Interpol validated the documents on May 15, 2008.)  Recovered documents show that Chavez recently gave the FARC $300 million and chronicle financial links dating back to Chavez‘s own failed coup against a previous Venezuelan government in 1992.  Furthermore, there is evidence that Chavez agreed to help the FARC gain political recognition in order to isolate Colombian President Alvaro Uribe, an ally of the Bush Administration.  Chavez then planned to promote a candidate allied with Venezuela and the FARC.  Most alarming, the documents detail Venezuela‘s efforts to secure arms for the FARC.  Taken together, this evidence establishes that Chavez flouted UNSCR 1373.
Similarly, the FARC have links to Ecuador.  The captured files show FARC contributions to Correa‘s 2006 campaign.  Apparently, Correa pays political favors back in full, as the FARC have repeatedly used Ecuador as a base from which to launch attacks against Colombia.  On April 9, 2008, Correa even fired his Defense Minister and threatened to do the same to many of his top military commanders after they voiced concern over his continued acquiescence to FARC bases in Ecuadorian territory.  The FARC knew they could operate with near impunity in Ecuador as evinced by the fact that Raul Reyes was wearing pajamas when he was killed.  Furthermore, an OAS report confirms that the FARC encampment targeted by Colombian forces was quite permanent: it had Direct TV antennas, a kitchen and mess area, sleeping quarters, a schoolroom, power generators, a corral, and dug-out pools for bathing.  The continued presence of such a base on Ecuadorian territory, despite repeated complaints by Colombian authorities, constitutes a clear violation of Ecuador‘s obligations under UNSCR 1373 to "deny safe haven" to terrorists.
The OAS‘s Unbalanced Response to Colombia‘s Use of Force
Instead of condemning the harboring of terrorists and the violation of UNSCR 1373, the OAS responded by passing two resolutions that exalted Ecuadorian sovereignty.  The first resolution, passed on March 5, 2008 condemns the Colombian attack as "a violation of the sovereignty and territorial integrity of Ecuador."  The resolution goes so far as to chastise the Colombian government for "trigger[ing] a serious crisis" with Ecuador without mentioning that this cross-border strike never would have occurred but for Ecuador harboring terrorists and ignoring Colombian pleas to take action against the FARC.  (Colombia even provided Ecuador with the precise location of the FARC base that Colombia bombed on March 1.)  The resolution then reaffirms "the principle that the territory of a state is inviolable" and may not be the object of force taken by another state "on any grounds whatsoever."
The second resolution, handed down twelve days later, is no better.  The first two substantive paragraphs "reaffirm the full applicability of" the principles of sovereignty, abstention from the threat or use of force, and noninterference in the internal affairs of other states.  Read together, the paragraphs say that these principles apply "unrestrictedly and without any exception."  Article 22 of the OAS Charter recognizes member states‘ right to use force in self-defense, yet the text of the resolution (like the first resolution) neither cites Article 22 nor uses the word "self-defense."  Predictably, the OAS proceeds to "reject" Colombia‘s strike a second time.  The resolution pays lip service to states‘ duty to combat threats to security, but it neither spells out how states are to "combat" these threats nor creates new substantive legal requirements for such purposes.  More shocking, the word "terrorist" appears nowhere in the resolution.  Rather, the OAS refers to the FARC as an "irregular group" (as it did in its first resolution).
The OAS‘s singular focus on sovereignty is highly problematic in a post-9/11 world.  First, it wrongly suggests that OAS members have no responsibility to take action against terrorists within their borders.  Indeed, the OAS likely labeled the FARC an "irregular group"-contrary to prior OAS resolutions that explicitly identified the FARC as terrorists-to circumvent UNSCR 1373.  Ecuador and Venezuela‘s active support of the FARC clearly violates this resolution.  Second, the OAS ignores states‘ "inherent right" to use force in self-defense pursuant to Article 51 of the UN Charter.  Under Article 131 of the OAS Charter and Article 103 of the UN Charter, UN rights preempt any conflicting OAS rules.  At a minimum, Colombia deserves to have this right recognized in a resolution, even if the OAS, after a fair examination of all evidence, ultimately decides the strike was not a legitimate use of force in self-defense.
There are several reasons why the OAS may have reached the conclusion it did.  First, the composition of the OAS Fact-Finding Commission-mostly states that denounced Colombia‘s attack even before the fact-finding mission began-suggests that the results of its investigation were predetermined.  Moreover, the OAS drew a legal conclusion as to the validity of Colombia‘s use of force without all relevant facts before it, since Interpol‘s report had not yet been released.  OAS member states did not bother themselves with the highly fact-specific inquiry needed to determine whether force was legitimately used in self-defense.  Rather, the OAS found it sufficient to condemn Colombia‘s attack based solely on the fact that Colombian armed forces crossed Ecuador‘s border.  Such analysis shows a blind commitment to formalistic notions of territorial sovereignty that fails to consider the right to use force in self-defense made necessary by another state‘s failure to honor its counterterrorism duties under UNSCR 1373.  This imbalanced perspective is held at the highest levels of the OAS.  The organization‘s Secretary General, who led the fact-finding mission, shed his role as neutral arbiter during drafting sessions of the second OAS resolution by criticizing proposals to reference Colombia‘s right of self-defense.  The OAS had little chance to get the substance of the resolutions right given these serious procedural defects.
The UN Handoff
Under Article 24(1) of the UN Charter, the Security Council has the "primary responsibility for the maintenance of international peace and security."  Accordingly, one expects a UN committed to fighting terrorism, or even a self-interested UN merely bent on having member states follow its mandates (whether related to terrorism or not), to intervene in Latin America to address these significant developments.  A UNSCR condemning the FARC for its terrorist activities and reiterating states‘ "inherent right" to use force in self-defense would be a good start, even if the UN ultimately determines that Colombia was not justified in using force pursuant to Article 51.  The next step would be for the Security Council to punish Venezuela and Ecuador for actively supporting the FARC and violating UNSCR 1373.  Hugo Chavez‘s recent disavowal of FARCmay or may not be serious, but Venezuela should still face sanctions. Such actions would illustrate the UN‘s desire to be a relevant player in the war on terror.  But so far, the UN has only issued a press release in which the UN Secretary General, Ban Ki-moon, said that he "fully support[s]" the OAS‘s efforts.  Indeed, the statement, made on March 6, 2008, approved of the first OAS resolution and "welcome[d] the leading role being played by the OAS."
Such derelict behavior by the UN is unacceptable.  If the OAS will not handle this issue properly, then the UN must step in and take the "lead role."  There are, however, several reasons why the Security Council is unlikely to act.
First, the UN, like the OAS, has no agreed upon definition of terrorism, which invites arguments that UNSCR 1373 does not apply to the FARC.  For countries like China and Russia, which want to complicate America‘s foreign policy, it is not sufficient that both the U.S. and European Union classify the FARC as a terrorist organization.  If UNSCR 1373 is not applied (and the OAS remains impotent), then the U.S. is forced to choose between unilaterally sanctioning Venezuela and having no sanctions at all.  The latter option invites criticism that America values oil more than fighting terrorism.  The Bush Administration is sensitive to such criticism in an election year in which the Republican Party wants to appear tough on terror.  But the costs of unilaterally imposing sanctions may be worse.  Congressional Republicans have proposed legislation that would require the U.S. to "designate Venezuela as a state sponsor of terrorism" even if no other country takes similar action.  Doing so could complicate continued U.S. purchases of 1.4 million barrels of oil per day from Venezuela, which is America‘s fourth-largest oil supplier.  China and Russia can then take some of this oil for themselves.  Furthermore, if America alone sanctions Venezuela, then Chavez will likely garner domestic support by painting the U.S. as a foreign aggressor, helping him recover from his recent electoral defeat.
Second, China and Russia do not want to legitimize a use of force that clashes with what they see as the inviolable right of territorial sovereignty.  Doing so could create precedent that makes it more difficult for them to carry out repressive policies against domestic separatist groups.
Third, China and Russia both have strong economic ties with Venezuela that they are unwilling to jeopardize.  China is the second largest international oil consumer in the world.  A lack of sufficient domestic production and the need to lessen its dependence on imports from the Middle East means that China has been looking to invest in other markets like Latin America.  China‘s principal strategic partner in that region is Venezuela, because Venezuela has larger oil reserves than any other Latin American country.  In August 2006, Chavez traveled to China, and Beijing agreed to begin oil exploration and production projects valued at $5 billion.  Additionally, Chavez plans to multiply Venezuela‘s oil sales to China by more than a factor of six -- from 155,000 barrels per day to 1 million barrels per day by 2012.  With Venezuela meeting such a large part of China‘s hefty demand for oil, Beijing is unlikely to authorize coercive measures against Caracas.
For years, Russia has been Venezuela‘s principal arms dealer due to U.S. unwillingness to supply the Chavez regime.  Russia recently sold Chavez twenty-four Sukhoi jet fighters, nearly three dozen attack helicopters, 100,000 Kalashnikov assault rifles, and roughly 5,000 Dragunov sniper rifles.  With Russian technical assistance, Chavez plans to build a plant to produce its own Kalashnikov rifles and ammunition.  Moscow has a lot to lose from sanctioning Caracas.
Conclusion
The U.S. was right to criticize the OAS‘s rejection of Colombia‘s strike.  Washington recognizes that territorial sovereignty does not necessarily trump the right of self-defense in all cases.  Rather, the question of whether force is used legitimately in self-defense is a "highly fact-specific" legal determination that may be drawn only after considering the totality of the circumstances.  These concerns were relegated to a footnote in the second OAS resolution condemning Colombia‘s strike.  This leaves the U.S. with at least two responses.
The first approach is to be satisfied with the fact that Colombia‘s strike was a "realpolitik bargain" and leave it at that.  Colombia killed a top FARC leader and uncovered a trove of evidence about the support these terrorists receive from Venezuela and Ecuador at a cost of two OAS resolutions that will soon be forgotten.  Accordingly, the U.S. should not waste time and energy trying to change Latin American norms about territorial sovereignty and non-interference.  Indeed, given the history of border conflicts between Latin American states and past interventions from European powers and the United States, the U.S. may be unable to persuade Latin American countries to modify their views.  If the U.S. starts making its case, the recipients of the argument will immediately suspect that the U.S. is seeking carte blanche to engage again in "gunboat diplomacy."  Given that the FARC are losing (as evinced by their retreat into Ecuador), the U.S. need only continue funding Colombia‘s counterterrorism efforts through Plan Colombia to rout the FARC.
Alternatively, the U.S. can use this incident as a springboard to begin creating an international norm of self-defense that advances its interests in the war on terror.  Cross-border strikes against terrorist targets are a cornerstone of the U.S. strategy in the war on terror.  The Colombian attack is comparable to those conducted by America in Pakistan, Yemen, Mali, Somalia, and elsewhere.  Standing up on this issue is not just about defending an ally in Latin America; it is about preserving America‘s right to stop terrorists before they reach our borders and restoring the credibility of multilateral forums charged with maintaining peace and security.  A visible diplomatic stance on this incident would be a first step, not a panacea.
Simply telling other countries that they are soft on terror because they give too much weight to competing interests like territorial sovereignty, however, is not the right approach.  It would merely result in the U.S. trading accusations with other countries that each side has failed to honor its obligations under international law.  This could further entrench views rather than motivating other states to consider the merits of the U.S. position.
The first step in constructing this international norm would be to pursue vigorous and skillful diplomacy with potential partners.  For example, Argentina, Brazil, Chile, and Mexico would be the targets of a diplomatic offensive in Latin America.  These four regional powers are concerned by the erosion of territorial sovereignty.  More importantly, though, their democratization and economic growth are threatened by the destabilizing presence of terrorists and drug traffickers like the FARC.  These shared interests with the U.S. provide an opening to convince Argentina, Brazil, Chile, and Mexico that they benefit more from allying with America than siding with Chavez.  Secretary Rice‘s recent visit to Brazil and Chile is a start to the sustained high-level discussions Washington must have with its partners.  Continued efforts of this sort could assist the U.S. in breaking down opposition to its approach to combating terrorism.
Paul Leaf and Eli Sugarman are students at Stanford Law School. Comments
the US was criticized from our actions in Pakistan. Imagine if there was a terrorist strike here in the US that stemmed from not striking the terrorists in Pakistan. Imagine if we told the world that we knew they were there but we chose not to do anything because of Pakistan‘s sovereignty. It seems like there may be a consensus in the world that is anti-American. Can‘t win for losing.
Posted by: larry hanson |June 14, 2008 09:47 AM