Considerations that should be addressed in bilateral and sub-regional agreements and SOPs for “hot pursuit”
Bilateral agreements constitute the recognition of an understanding between two States regarding certain issues, and that each State is ready to respect the terms of the agreement. In this way, everything about those crimes which warrant pursuit, the distance or how deeply pursuit can go into the other state’s territory, time, the transfer of criminals, their trial, and jurisdiction are matters that can be regulated in a straightforward manner in the agreement. Building on the above good practices, the below items provide key, non-binding considerations for developing and implementation of bilateral and sub-regional agreements and SOPs for “hot pursuit” in the Sahel region.
- Whether the offenses covered by the parties to a “hot pursuit” agreement are criminalized in both countries;
- What offenses, in addition to terrorism, warrant “hot pursuit”—specifically, what preparatory terrorist acts warrant a “hot pursuit” response;
- When does the first State in a “hot pursuit” case have the responsibility to transfer pursuit to the second State;
- How will the “hot pursuit” agreement address issues related to the absence of an agreed border between two States;
- Who detains apprehended suspects and, if the second State, for how long, and if the first State, under what legal framework and subject to what provisions – for example, is the first State entitled to bring the suspect back into the first state’s territory;
- How the first State may seek transfer of the apprehended suspects from the second State;
- Where apprehended suspects are tried;
- Who retains evidence and/or contraband gathered as the result of a hot pursuit;
- Who is responsible for collateral damages resulting from a “hot pursuit;”
- When and who will make a decision or consider the second State is not in a position to pick up the pursuit once the suspects enter the territory;
- When and who makes the determination that the second State cannot—or will not—interdict the offenders and lawfully return them to the first State; and
- Legal status of pursuing officers and specification as to how actions are to be carried out.
- The level of authorization required to launch a “hot pursuit” operation. Political and administrative authorities are to be kept informed, taking into account considerations of time and urgency;
- Whether all categories of security and defense forces should be authorized to engage in pursuit as any one of these forces may need to do so;
- When and how the first State notifies the second State of a “hot pursuit” into the second state’s territory;
- How states involved in the “hot pursuit” will communicate with one another and third parties, including civil society and the general public;
- How far and for how long can the first State pursue terrorism suspects into the second State; and are there exemptions in cases of extreme urgency for authorization to continue pursuit beyond the space and time limits indicated in the agreement? If several countries are interested parties in this type of operation, one country acting alone should not decide for the others what is to be done, unless urgency so requires;
- What are the rules of engagement for both States in a “hot pursuit;”
- How to benefit from the local knowledge of cross-border populations in cases of “hot pursuit;” and
- How to handle kidnapping for ransom and other special situations during a case of “hot pursuit.” In particular, if the lives of ordinary citizens are in danger, then the pursuit must be approached in a completely different way, taking into account variables and other unforeseen circumstances, with the possibility of halting the pursuit operation or improving preparations for it.
- How to ensure both the first and second State in a case of “hot pursuit” have the operational capabilities, in terms of forces, equipment, and procedures, to pursue and intercept suspects. Two states can define the terms of their mutual assistance, particularly in those cases in which one has greater resources than the other. The decision can then be made as to who will manage operations.
- If the States in question do not have the appropriate technology or logistics, they can request support from a better-equipped country;
- How to ensure logistical support to forces involved in “hot pursuit,” including fuel, water, and repairs for pursuing vehicles;
- How to ensure relevant authorities of both States involved in a “hot pursuit” have interoperable communications equipment and effective communications mechanisms to enable coordination between and among them; and
- How to ensure relevant authorities of both States have playbooks, contact information, and other resources for the conduct of “hot pursuit.”