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Hot Idea

Dukes of Hazzard goes international

Last January, President Bush raised eyebrows after declaring that U.S. forces would "seek out and destroy" terrorist networks in Iran and Syria. His statement, which came on the heels of the arrest of Revolutionary Guard operatives in northern Iraq, seemed to suggest a military incursion into the neighboring countries without congressional approval might be in the offing. More than just Texas tough talk, the announcement was an apparent nod at what some legal scholars call the "hot pursuit" principle, whose use in international affairs is growing. It is a response not only to the borderless nature of today's enemies, from terrorists to drug traffickers, but also to states' growing inability--or rather unwillingness--to control these combatants. But while the phrase might conjure up an image of a car chase or a sheriff crossing over county lines to apprehend an outlaw, it also raises a number of legal and practical concerns.

"Hot pursuit," as interpreted in its modern incantation, provides a legal canopy for nations to cross briefly into another's sovereign territory and, like the county sheriff, nab fugitives or destroy their hideouts. Others interpret it more broadly to justify larger cross-border incursions or even limited air strikes.

Take Turkey's recent flirtation with invading Iraqi Kurdistan. Ankara argues that members of the Kurdistan Workers Party (PKK), which has launched a decades-long fight for Kurdish independence, are provided sanctuary in northern Iraq by local authorities sympathetic to their cause. Much like its bases in Syria during the 1980s, the PKK has used the region to orchestrate cross-border attacks against Turkish civilians, and neither the Kurdistan Regional Government nor the Iraqi government nor the U.S. forces in the region, the Turks argue, has proved willing or able to disrupt their operations. Therefore, Turkey wants the legal authority to temporarily violate Iraq's territorial borders and take out these PKK camps, presumably a limited attack of a few hundred forces, not a full-blown ground invasion. To do so, it has amassed thousands of forces along its border. "Hot pursuit," its proponents argue, may make a larger war less likely by removing the tumor at an early stage before it metastasizes. According to this view, a limited strike against PKK targets in Iraq now might preempt a larger war with Turkey in the future.

Similarly, some officials in Washington suggest that U.S. forces carry out raids or launch air strikes against safe houses of Islamic militants in Syria, given that, according to the Bush administration, nearly 90 percent of the foreign jihadists in Iraq enter through the Syrian border, and the mounting evidence that Syrian authorities have turned a blind eye. This does not mean bombing Damascus or targeting Syrian forces, these officials argue, just limited incursions in "hot pursuit" of insurgents.

Such small-scale actions are nothing new. Indeed, nations have routinely violated each other's sovereignty with gusto, whether it is Russian forces entering Georgia to apprehend Chechen terrorists or Rwanda's Tutsi-led military pursuing Hutu militants with Tutsi blood on their hands in the Congo. Turkey alone carried out 29 incursions against PKK targets in Iraq during the 1990s. Stretching further back, the U.S. military didn't think twice about crossing into Mexico in pursuit of Pancho Villa in 1916, in response to his raid of New Mexico.

But "hot pursuit" raises touchy issues of territorial sovereignty and may open a dangerous legal can of worms. Some legal scholars say it is a bastardization of a 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, and 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 U.N. Security Council, they say, constitutes an act of war, clear and simple. "This idea of hot pursuit is merely an attempt to twist the law of the sea doctrine into a self-defense idea," says Peter Danchin, an assistant professor of law at the University of Maryland. "What we're talking about is the use of force against the territory of another state."

Another concern is that the doctrine, if implemented, might supplant other legal channels, such as the extradition process. After all, it would seem foolish to wait around for Iraqi Kurds to arrest and extradite PKK rebels to Turkey or Syria to extradite Al Qaeda operatives to the United States if a more expedient alternative existed. Britain can't even persuade Russia to extradite a suspect wanted in the poisoning of a Russian national. Still others 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."

Given these uncertainties, it seems international law may need some amending to reflect modern realities. After all, terrorists or armed rebels, much like ships at sea, should not be allowed to cross state boundaries to escape pursuit. Likewise, governments have a legal obligation--under U.N. Security Council Resolution 1373, passed shortly after 9/11--to prevent their territories from becoming terrorist safe havens. Indeed, the high seas may be an apt metaphor to describe the rugged hills of northern Waziristan or Iraqi Kurdistan, lawless frontiers from whence armed rebels can safely carry out cross-border attacks against civilian populations.

In small ways, some Western states are already formalizing the doctrine to allow more legal wiggle room to cross one another's borders in the name of law enforcement. Several European countries, for example, agreed in 2005 to allow police from their states to cross into the others in pursuit of a criminal. But broader agreement is needed. "Hot pursuit" should complement, not replace, other legal avenues and should apply only if all other means--legal, diplomatic, or otherwise--have been exhausted. The United Nations should spell out specific ground rules, including where, when, and under what circumstances "hot pursuit" is allowed, to prevent the principle from being abused by nations itching to invade their neighbors.

Under certain circumstance, "hot pursuit" can be a necessary and legitimate response to terrorism threats. It should not be a legal blank check to invade one's neighbor, however, but rather a means of last resort. As the principle gains currency among military strategists, legal scholars should come up with a more acceptable definition of what "hot pursuit" means under international law. Turkey should not have to sit by idly while its innocents are slaughtered at the hands of PKK rebels holed up in Iraq. Nor should the United States be confined to Iraq's borders to fight insurgents based in Syria. Like a county sheriff or ship on the high seas, nations cannot let borders prevent them from pursuing the bad guys.

By Lionel Beehner