Friday, May 7, 2010

Colombia's Presidential Election & The Use of Force against Terrorists

Over the next months, Colombia is set to decide its next President. Apparently, the fight for a spot in the Casa de Nariño, official home and principal workplace of the President, comes down to two main candidates: Juan Manuel Santos, former Minister of National Defense of President Álvaro Uribe, well-known for executing a military operation leading to the death of FARC Secretariat member Raúl Reyes in an air strike against a guerrilla camp located within Ecuador’s borders. Additionally, Mr. Santos acquired global recognition after leading the non-violent rescue of former presidential candidate Ingrid Betancourt, along with 14 other hostages.

However, on his way to defeat him is Antanas Mockus, a former mayor of Bogotá and the candidate of a newly formed Green Party, who surprisingly has been leading the polls over the last few weeks. Mockus lead is shocking because Mr. Santos is President Alvaro Uribe’s candidate, who is extremely admired for his succeeding security build-up and offensive against the FARC guerrillas. Still, many Colombians loathe the scenario of scandal that has surrounded his government, and see in Mr. Mockus a new alternative for combating violence under democratic legality. To be more precise, Colombians are tired of “the end justifies the means” philosophy that has led to serious human rights abuses from Colombia’s government, a policy that Mr. Santos is committed to prolong

Mr. Mockus is a descendant of Lithuanian immigrants and has a reputation for integrity and an inflexible repudiation for corruption. He was elected twice as mayor of Bogotá as an independent candidate, always rejecting to negotiate with Colombia’s main political parties. Supporters from across the country say they want to witness decency in the presidency, and that above all Mr. Mockus is a good person. By founding the Green Party with two other successful mayors of Colombia’s capital, Mr. Mockus symbolizes an Obama-styled transformation in local government that has recently changed Colombia’s bigger cities. 

Although being on the centre may represent a plus to conquer the vote of those who are neither with nor against President Uribe, Mr. Mockus greatest Achilles' heel is that he does not have ties with political machinery to exchange cash in return for votes. Moreover, were he to win, governing would be tough since his party recently won just 5 seats in the 102-seat Senate and only four in the lower house. Basically, Mr. Mockus represents an uprising nationwide mood asking for change, and despite of his rise, it is interesting to notice that 40% of his surveyed supporters have said that they believed Mr. Santos will be Colombia’s next President. 

Juan Manuel Santos, for his part, is the candidate of the Social Party of National Unity, Colombia’s second most important political party. He studied in the University of Kansas, obtaining a degree in Economics and Business Administration. Later, he acquired master’s degrees in Economics, Economic Development and Public Administration in the London School of Economics, in business and journalism in Harvard University, and in law and diplomacy from the Fletcher School of Law and Diplomacy

Being raised in one of the most traditional families in Colombia, Mr. Santos quickly became a well-known politician in his country, representing Colombia in the International Coffee Organization in London. As well, he has wielded important positions such as Sub-Director of his family owned newspaper El Tiempo. He started in top public office positions as Minister of Foreign Trade during the administration of President César Gaviria in 1991, following with the Ministry of Finance and Public Credit with Andrés Pastrana’s administration, to finally hold the position of Minister of National Defense with Álvaro Uribe from 2006 to 2009, resigning with the sole purpose of becoming Colombia’s next President. 

Mr. Santos has emphasized the importance of persisting with President Uribe’s security plan, and has recurrently denounced the threat represented by Venezuela’s President Hugo Chávez. His decisive attack on the FARC has led to public support for the legality of intervening in foreign countries on the ground of self-defense, causing major conflicts with the governments of Venezuela and Ecuador

Interestingly, Mr. Santos’s biggest weaknesses have being his desperate attempt to portrait himself as a reincarnation of President Uribe. Before starting the campaign he even said he would run only once Uribe gave him the green light, showing that his eventual presidency would be a sequel of Álvaro Uribe´s. In addition, Santos has forgot that Uribe became president because he was the expression of an alternative to politics as usual. His repeated words of how deep the roots of the experience he has in politics, has reminded voters that Mr. Santos is part of the disastrous traditional political scenario. The truth is that Colombians may have grown tire of the scandals and the corruption increasingly surrounding Mr. Santos Ministry of Defense administration, specifically the extra-judicial killings of more than 1000 young men by the military and the illegal interception and activities of the Colombia’s secret service agency.

From what has been written above, it is obvious that the result of Colombia’s presidential election will have very important consequences in regard to the country’s international law policy. With Mr. Santos, Colombia will continue to upheld that the use of force against terrorists is permitted under international law, while Mockus is expected to take a much more legalistic approach, considering very carefully any step that could entail the violation of territorial sovereignty of another State. 

Whether States have the right to use force against terrorists located in another State is a matter of controversy under international law. The United Nations Charter does not provide an unambiguous solution, but international practice seems to have re-adjusted in order to tolerate forceful actions against terrorism under more light circumstances. This practice is justified under the right of self-defense, which is understood as an exception to the prohibition to use force enshrined in the UN Charter. 

It is very important to understand that the right of self-defense cannot require a State to await an actual attack before lifting a finger to protect itself – though it positively requires the most serious efforts to avoid the use of force. Therefore, it has been understood by States such as the United States of America, that under the principle of self-defense, it is not possible to rule out the use of force before attacks occur, even if uncertainty remains as to the time and place of the enemy’s attack. This doctrine of pre-emption has been represented as a policy of dealing with threats before they become threats. The concern is not simply that it might be used as an excuse for specific uses of force that are shown in retrospect not to have been justified, but rather that the assertion of the right to take pre-emptive action is in effect a statement of a permanent right to intervene with force in third States by the handful of States that have the technology and equipment to enable them to do so. Nevertheless, some States like for example, the United Kingdom, have categorically stated that international law permits the use of force in self-defense against an imminent attack but does not authorize the use of force to mount a pre-emptive strike against a threat that is more remote

The line between deterrence and prevention is certainly difficult to draw, but the important point is that international law gives no warrant to States to use violence to terrify those whom it fears may be disposed to attack it in order to give them a taste of what they might expect if an attack is executed. 

The requirement of proportionality is fundamental while exercising the right of self-defense. But it is not easy to pin down what the requirement of proportionality entails. The first approach establishes that the degree of force should be calibrated against the scale of violence that would occur if the threat against which the State is defending itself were to be realized. The second approach demands that the degree of force should be measured against the force that is necessary to prevent the attack. These two approaches might produce very different results. One State may threaten the use of force against another but be unable to bring sufficient military power to bear to cause more than minor damage, while another State may threaten massive destruction from an attack, but be easily deterred by a symbolic display of force. 

There is no doubt that the right of self-defense is a legal exception to the prohibition to use force, and that the international community is moving towards a broader understanding of such exception. For Juan Manuel Santos it will be important to remember that it is not as easy as to invoke the idea that the end justifies the means. On the contrary, if he were to be the President of Colombia, he must know that the right of self-defense applies only when the terrorist attack is imminent, which means that the attack must be likely to occur in any moment. Additionally, Colombia must seek to be proportional while exercising its right to self-defense. Mr. Mockus, for its part, must be reminded that a State cannot claim the protection of sovereignty when it knowingly offers a piece of its territory for terrorist activity against other nations. The legal arguments are far from clear for now, so we can only hope that States make use of the exception in cases where there are true legitimate causes for it. 

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