Paul G. Buchanan: In Defence of Cross-Border Raids

The subject of cross-border military raids is the focus of concerted debate, in no small part because of extensive use of US unmanned aerial vehicles (UAVs or drones) and International Security Assistance Force (ISAF) Special Forces against Taliban and al-Qaeda targets in the tribal areas of western Pakistan against the protests of the Pakistani authorities.

Although equally a violation of the territorial integrity and sovereignty of its neighbor, recent Iranian raids on Kurdish militant bases in northern Iraq have received less critical attention, and the 2008 Russian incursion into Georgia under the pretext of defending ethnic Ossetians, while receiving loud rhetorical condemnation, resulted in the annexation of South Ossetia and Abkhazia from Georgia by its larger neighbor.

A similar situation occurred after Colombian raids on FARC guerrilla bases inside Ecuador in 2008, which occasioned a diplomatic row between the neighboring states in which Venezuela got involved, but which has resulted in de facto creation of a “no-go” zone for the FARC along the Colombian-Ecuadorian border (in recent weeks dozens of FARC guerrillas have been killed in confrontations with Colombian Army units on the Colombian side of the border, in part because Ecuadorian military forces have now deployed as a security cordon on their side in a move that effectively serves as a pincer on FARC movements across that border). It would therefore seem that the principle and results of cross-border raids matters less than who is conducting them.

The questions that emerge from this overview are threefold: why the condemnation of US raids and the lack of condemnation of the others; why the general acceptance of cross-border raids by the international community; and, most importantly, are cross-border raids a legitimate tool in conflict?

One answer to the first question is simply to note the post-2003 rise in anti-Americanism regardless of what the US does or does not do. It receives criticism for simply being what it is—a global military superpower with forces on the ground in large numbers in several foreign states, often against the will of the local populations and often in places that had nothing to do with 9-11. Whether or not its military reach is justified or its approach to cross-border raids appropriate to the context in which they are undertaken, US military activity abroad will be condemned by those who see it as a manifestation of imperialist aggression or super power arrogance. The invasion of Iraq only confirmed the worst opinions about US intent and comportment.

The answer to the second question is that the international community recognizes that it is a semi-anarchic system in which national power remains the ultimate determinant of state action, and that defense of sovereignty and territorial integrity rests with states themselves, particularly in a world where states use irregular armed proxies as instruments of foreign policy to the extent that they offer safe haven and logistical support to irregular armed actors engaged in belligerencies with rival states. Under such conditions those that can defend against foreign incursions can and will; those that cannot, will not. Yet there is more to the equation than raw power politics, and that is embedded in the third question: are cross-border raids justified on moral and legal grounds?

The answer is a qualified “yes,” but for reasons more complex than the explanation for why the US gets criticized for actions that other states also engage in but for which they receive less negative attention. It involves legal and moral justifications beyond the balance of power between any two states. Hence, in order to offer a defense for cross-border raids, the notions of preventive war, preemptive war, and “hot pursuit” need to be explained and elaborated. What is different about the elaboration is that it extends the thrust of the first two terms to the tactical level. Otherwise, the notions of preventive war, preemptive war and hot pursuit conform to generally accepted usage.

Preemptive war is a long-standing concept in international law, military jurisprudence and international relations. Preemptive war refers to the practice of striking at an imminent threat before the threat materializes, often in an effort to minimize what otherwise could become a larger conflict. If the threat emanates from abroad, the doctrine of preemptive war justifies cross-border raids as an act of self-defense. The key to the justification rests on the imminence of the threat. It has to be obvious, immediate and real, which gives it jus ad bellum (reason for war) legitimacy.

The moral justification for preemptive war is that it is a lesser evil to proactively engage an enemy first if greater harm can be avoided to the defending actor’s interests and population. A good case in point is Israeli preemptive strikes against Egyptian, Syrian and Jordanian forces in the 1967 Six Day War. Seeing that its neighbors were massing forces along its borders and informed by intelligence that a three-pronged strike against Israel was imminent, the Israelis crossed their borders and used their air power to strike first, with devastating effect. In doing so they minimized harm to their population while shortening what otherwise could have been a protracted, costly and bloody ground conflict (as well as maintaining a specific regional balance of power). Thus, on moral as well as legal grounds the Israeli cross-border raids were justified under the doctrine of preemptive war as acts of self-defense.

The doctrine of preemptive war has been confused with the practice of preventive war, particularly as the latter was conducted under the George W. Bush administration’s doctrine of unilateral pre-emption precipitated by 9-11. Preventive war is the launching of surprise attacks on states that are nominally at peace, in a condition of military rest, or at worst hostile but non-threatening. Preventive war is not waged to counter an imminent threat but to forestall a future possibility. It is designed to (re) establish a specific balance of power by degrading rival military capabilities before the rival is combat-ready or able to respond. It is therefore not legal or morally legitimate as a reason for war, although it may have utility. Under the US doctrine of unilateral preemption, preventive war was deliberately confused with preemptive war in order to obscure the illegal nature of the former.

Such was the case with the US attack on Iraq in 2003. It had no jus ad bellum justification because it was preventive rather than preemptive in nature. Iraq posed no imminent threat to the US, the UK, Israel or its Arab neighbors, which is precisely why evidence was fabricated as a justification for preventive war against it. The real reasons for war were to alter the regional balance of power and project US strength and resolve in the Muslim world, both of which have not turned out quite as planned.

Unlike preventive war, which has no legal and moral justification, armed prevention is a legitimate staple in war under jus in bellum (laws of war) criteria. Armed prevention is a situation where an enemy is attacked without warning before it has a chance to prepare its forces for engagement (to include while it is at rest or sheltering in safe havens). Justification for armed prevention is limited to its use as a tactic within an existing conflict. Likewise, armed preemption is a related but different tactic in war whereby an enemy is attacked as it prepares to strike but before it can do so. They key operational difference is that armed prevention targets adversaries before they are capable of striking, whereas armed preemption targets adversaries as they are about to strike.

To put the matter succinctly: preemptive war is just; preventive war is not. Armed preventive and preemptive actions are just as tactics used within the context of ongoing conflict. The distinction is important.

To illustrate the tactical aspect, consider that NZSAS and Afghan Crisis Response Unit raids on suspected terrorist targets are a mix of preventive and preemptive strikes within war. The enemy is targeted while at rest or in the process of preparing to attack. The purpose is to neutralize the terrorist threat before it materializes into violent action during the course of an ongoing conflict with multiple fronts. Conversely, where cross-border military prevention has been used with malicious intent, such as the Japanese attacks on Pearl Harbor, it is done in full recognition of the fact that it constitutes an act of war that invites a response in kind. Ironically, that is exactly what Egyptian and Syrian forces did to start the 1973 Yom Kippur War, launching surprise attacks on Israel on the holiest day on the Jewish calendar in order to alter the balance of power status quo resultant from the 1967 conflict (the Yom Kippur War ended in a ceasefire when the USSR threatened to intervene once the Israelis gained the upper hand, and set the stage for the Camp David accords six years later).

In contrast, the attack on Taliban-ruled Afghanistan was justified on jus ad bellum grounds that the Taliban aided, abetted, sheltered, supplied and logistically facilitated those who conducted the 9-11 terrorist attacks on the US. Although there was nothing preventive or preemptive in the strategic decision to wage war against the Taliban, within the confines of the war once undertaken the difference between the notions of armed prevention and preemption as military tactics have tended to be confused with strategic justifications for the war itself. As it stands, with the Afghanistan conflict ongoing, the doctrines of armed prevention as well as armed preemption justify strikes against cross-border enemy targets in Pakistan.

The justification for cross-border raids under the doctrines of armed prevention and preemption must not be confused with the concept of “hot pursuit.” Hot pursuit refers to the practice of following enemy forces across international boundaries in order to continue military engagements begun inside an adjoining state. This practice is authorized under international law as well as the laws of war (jus in bellum), understanding that retreating forces will use the artificial protection of international borders in order to escape retaliation for operations conducted in a target country. If security forces in the country to which the retreating forces are headed can repel the pursuer’s counter-attack, then the balance of state power gives advantage to the retreating party. If they cannot or will not, then the advantage goes to the pursuer.

Within the context of an ongoing war such as that in Afghanistan, cross-border armed prevention or preemption are means of neutralizing enemies seeking shelter and protection in foreign territory, on the one hand, or preventing them from launching attacks on the other. They are not done in hot pursuit, although a hot pursuit can lead to a preventive or preemptive strike. Be it an independent action or as a follow up to hot pursuit, cross border armed preemption is a small-scale version of the larger notion of preemptive war, used as a tactic rather than a strategy in order to minimize the imminent threat of irregular cross-border attacks on a targeted country. Similarly, cross-border armed prevention is tactic whereby the enemy is attacked while at rest in a foreign safe haven. The difference is that armed prevention within war is legal and just; preventive war is not.

Having outlined the dual rationale underpinning justifications for military cross-border raids, the question that follows is whether, for example, the Iranian raid on Kurdish bases in Iraq was justified, or whether the US use of drone strikes and special forces raids on insurgents staging and sheltering in Pakistan is a legitimate use of force. The short answer to both is yes.

The Iranians retaliated against irredentist forces responsible for the bombing of a military parade in northwestern Iran, who then fled back into Kurdish-controlled areas of northern Iraq in which the Iraq Army has no significant presence and in which the local elites shelter and sustain the insurgents. Although not in hot pursuit and not preemptive in nature, the Iranian cross-border raid is justified under the doctrine of armed prevention because it is designed to thwart subsequent attacks inside Iranian territory.

The US use of drones and Special Forces raids on irregular targets operating from bases in Pakistan is also justified along such lines. Given the Pakistani Army’s inability to exercise effective control much less a monopoly of force in the Federally Administered Tribal Areas (FATA) abutting the Eastern Afghan border, and given that Taliban and al-Qaeda militants use that territory as safe havens and staging areas for armed attacks inside Afghanistan, the US is justified in employing its forces across that border in hot pursuit, preemptive and preventive modes.

In each case the choice of cross-border strategy is determined by the actions of the adversary in tandem with the range of military options available to the raiding force, set against the absence of countervailing force or cooperation by the host state

Objections to cross-border raids often focus on civilian casualties. It is obvious that military commanders need to ascertain with as much precision as possible the location and context in which adversaries are targeted for cross-border action. To not do so is to be criminally negligent. Yet it is an unhappy fact of unconventional warfare that irregular armed actors use the civilian population as a cloak for their activities, whether or not that population consents to their presence. Thus the intermingling of legitimate military targets with civilian populations complicates the command imperative. That is why real-time tactical intelligence is essential to the success of cross-border strikes under the doctrines of armed prevention, preemption and hot pursuit. The use of drone strikes and small unit Special Forces operations against high value targets is designed, among other things, to minimize the risks of collateral damage associated with large ground troop maneuvers under the cover of conventional close air support in ill-defined conflict zones using close-combat tactics. They may not be surgical but they are more precise than the blunt instrument approach of large-scale integrated air-land warfare.

In the end, the placement of non-combatants in harm’s way is the choice of the guerrillas, and the decision to preemptively or preventively strike at guerrilla targets across borders under such conditions is the moral hazard of the military professional.

There will always be those who see the US presence in Afghanistan as illegitimate and therefore any of its armed actions as illegal. Perhaps there is some underlying validity to these claims, which would excuse the lack of similar condemnation of the Iranians or Colombians for their armed cross-border incursions. But the US military presence in Afghanistan, to include its choice of cross-border armed prevention and preemption, is authorized by UN Security Council resolutions that give substance to the ISAF mandate under which the US military serves. In other words, the US armed forces may be the lead military instrument for the application of the doctrines of cross-border armed preemption and prevention, but it is the UN and ISAF that are the multinational governing bodies under which those doctrines have been authorized. The Afghanistan occupation and conflict is thus a multinational as opposed to a singularly US decision, and to date even great power rivals of the US such as China and Russia (to say nothing of a host of Muslim states) have approved the ISAF mission. Hence if the occupation of Afghanistan and armed cross border strikes into Pakistan are to be considered illegal, then they need to be seen as acts of multinational rather than US criminality and addressed accordingly.

Conceptual confusion notwithstanding, and arguments about the legitimacy of irregular armed resistance to foreign occupation aside (and the legitimacy of such movements cannot be discounted), the doctrines of armed prevention and preemption provide justification for cross-border raids and military strikes against irregular forces sheltering in neighboring states. Neither should be a first recourse, but are a tactical necessity when the enemy is unconventional, borders are porous, states are complicit with or incapable of stopping guerrillas from using their national territory for external military purposes, and the very notion of sovereignty rests largely on the comparative ability of states to defend their borders from both conventional and unconventional armed actors. In a semi-anarchic system in which multinational and national power differentials remain in flux and are unregulated by an overarching ideological consensus, the use of cross-border armed prevention and preemption is therefore legal, just and destined to be a mainstay of conflict in the years to come.

Paul G. Buchanan is the founder of Buchanan Strategic Advisors, Ltd., a New Zealand-based political risk, market intelligence and strategic assessment consulting firm with a focus on Australasian-global relations. A former US Defense Department analyst and consultant to several US security agencies, he is a member of the Kiwipolitico weblog collective the author of three books and over 50 scholarly articles, reviews and monographs, and a regular commentator on international issues in a variety of media.

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