Of all the questions raised by the U.S. campaign against the Islamic State of Iraq and al-Sham (ISIS), one is particularly contentious: Does the United States have the legal authority to extend airstrikes from Iraq to Syria? Although its current air campaign is legal -- Iraq has formally asked the United States and coalition forces to aid in the fight against ISIS -- Syria has neither sought assistance nor given consent for foreign countries to launch attacks within its territory.
In recent hearings, U.S. Secretary of State John Kerry defended a possible foray into Syria by repurposing an old concept from international law: the right of hot pursuit. The doctrine has traditionally applied to the right of a navy to chase pirate ships from its territorial waters into the high seas. And in its modern incarnation -- as part of domestic criminal law -- the doctrine is primarily used to allow law enforcement officials to pursue criminals fleeing across borders.
But whether the United States could invoke hot pursuit to chase militants into Syria is a different question altogether. The answer risks putting U.S. policymakers on a dangerous slippery slope. If history is any guide, by invoking the term, Washington could be opening a Pandora’s box of political ironies and potential legal dilemmas.
CATCH THEM IF YOU CAN
In recent decades, countries from Brazil to South Africa have used the term “hot pursuit” with gusto. And every instance hints at possible ways in which the concept could be misused or exploited for political gain.
First, countries that invoke the right of hot pursuit often exaggerate the threat posed by nonstate actors in order to garner international sympathy and dilute criticism of their aggression. One case in point is South Africa’s use of the term to justify frequent raids into Angola in the 1970s. The ostensible goal of these incursions was to target separatists from the South West Africa People's Organization, a group fighting for the independence
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