Is There An Emerging Norm Against Restraint in Dealing With Non-State Actors?

Last week I argued that restraint among states is becoming a new norm in international affairs, as military retaliation is increasingly seen as a global taboo. What’s puzzling is that just the opposite is the case with conflicts between a foreign state and a violent non-state actor. States in recent years have shown little restraint when attacked by non-state actors and retaliation, which often includes disproportionate force, appears to be the new norm (the Mumbai attacks, carried out by Lashkar-e-Taiba, are the one obvious exception). Examples include Israel’s response in 2006 to a cross-border incursion by Hezbollah forces, Turkey’s repeated cross-border attacks against Kurdish militants in northern Iraq, and Colombia’s incursion into Ecuador to take out FARC rebels in February 2008. So why are states under-reaching when it comes to conflicts with other states, but overreaching when it comes to conflicts with non-state actors?

Two thoughts come to mind: first, all states concerned about the sanctity of their sovereign borders have a collective interest in undermining the power of non-state actors, even ones they nominally tolerate. That is why the Kurdish or Iraqi governments do not send troops after Turkish forces that cross the border in search of PKK rebels. States like Pakistan do their best Captain Renault impression to feign shock at the audacity of their neighbors’ violation of their borders as well as equal shock that there is anything rebel-related going on in their midst. What’s interesting is both that a) states barely give the use of force a second thought when it comes to non-state actors and b) that this use of force appears to be accepted by the state whose sovereignty was violated (even when they claim to be outraged).

In 2008, for example, Hugo Chavez howled and sent troops to the border after Colombia’s military took out a FARC rebel camp in Ecuador. But only a few years later, the Venezuelan strongman was seen backslapping Colombia’s new president at a summit in Santa Marta. In South Asia, repeated cross-border attacks by U.S. forces into Pakistan have ruffled relations. But there is a reluctant acceptance – a wink-wink-nod-nod of sorts – of these acts among some in the Pakistani military and government, so long as Pakistani forces are not targeted (and if they are, as long as there’s a forthcoming apology). As restraint increasingly defines relations between states, retaliation defines relations between states and non-state actors.

Second, 9/11 happened. The attacks, and the subsequent overreaction to them by the Bush administration, provided a political canopy of sorts for states jonesing to use greater force to take out rebels along their lawless peripheries, even if the non-state actors had little or nothing to do with al-Qaeda – Turkey, Philippines, and Russia, etc., come to mind. In this regard, 9/11 reshaped relations between non-state actors and their hosts. Previously, only a government that exhibited “effective control” of a group within its borders was found liable for the group’s crimes. That is why the International Court of Justice found that Nicaragua was not responsible for funneling arms to El Salvador-based guerrillas in the 1980s. Nor did Serbia legally demonstrate “effective control” over Bosnian Serbs accused of massacring thousands of Muslims in the 1990s. But with the U.S.-led overthrow of the Taliban, the “effective control” principle was tossed out the window. U.N. Security Council Resolution 1373, passed in the wake of 9/11, required that states “deny safe haven to those who finance, plan, support, or commit terrorist acts.” That is, state sovereignty confers rights but also responsibilities to control one’s territory. It gave greater latitude to the state victimized by a non-state actor to engage in self-help – as prescribed under Article 51 of the UN Charter – provided the response was immediate, proportional, and a means of last resort.

The problem is that states tend to overreach and use disproportionate force. Both Turkey and Israel, for instance, caught guff for using disproportionate force during their respective cross-border operations against the PKK and Hezbollah. However, rules on proportionality are vague, open to interpretation, and evolving. Generally speaking, I cannot burn your house down if you spit on me. But I can slug you one in the face and be in the clear (or, using the FARC analogy, Colombia cannot respond to guerrilla activity by carpet-bombing Quito. But a targeted airstrike against a terrorist safe house near the border might be acceptable). That said, often these retaliatory uses of force against non-state actors involve violations of state sovereignty, cross-border incursions (or so-called hot-pursuit raids), and the targeting, whether intentional or unintentional, of civilians. A state is legally allowed to unilaterally defend itself provided the response is proportional to the injury suffered and is immediate, necessary, refrains from targeting civilians, and requires only enough force to reinstate the status quo ante. Also implicit in this argument is the right of the offended state to prevent the non-state actor from carrying out future attacks.

Both of the above explanations are two sides of the same coin (no pun intended). So long as you say that you are fighting radical Islamists, even if they are more interested in separatism than violent extremism (e.g. MILF in Philippines), the use of disproportionate force has been tolerated since the events of 9/11. The rules on self-defense were relaxed to allow states to retaliate with greater oomph and even in an anticipatory fashion (Israel’s September 2007 strike against a nascent nuclear facility in Syria). In addition, most non-state actors cannot respond with matching force, nor are they deterred in the same way as states. So there is little beyond international opprobrium to prevent states from responding disproportionately.  A war against separatists or Islamist extremists is generally popular – elections in Turkey, Philippines, Russia and other states hinged on leaders’ toughness against terrorists – whereas provoking war with one’s neighbor, which would obviously incur more costs, casualties, and condemnation from abroad, might prove less popular (To say nothing of the obvious fact that provoking an overreaction is often exactly what the non-state actor intends, to generate attention to their cause or internationalize their conflict).

Finally, this debate raises a few thorny issues/questions that demand more systematic study among IR scholars. First, as 9/11 and terrorism fade from policymakers’ minds, can we expect to see an end to the Bush-era climate of permissiveness? Will the blank check given to states to use disproportionate force against violent non-state actors be revoked? Second, is there some relationship between the two observations: That is, does the pattern of restraint we see in the international system in dealing with other states in some way explain the lack of restraint we see in dealing with non-state actors? Perhaps we have reached an unspecified agreement among neighbors that violations of sovereignty, while not encouraged, are permissive so long as the intended target is a non-state actor. After all, why have we not seen more of these cross-border attacks turn into interstate conflagrations?

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