The Case of Kim Jong-nam and Questions of International Law

Written by Quentin Johnson

In the immediate aftermath of the assassination of Kim Jong-nam in Kuala Lumpur, foreign policy circles and the news media focused on palace intrigue, the ramifications for China, and the bizarre statements provided by the lead suspects. The ensuing investigation revealed that Jong-nam, the half-brother of North Korean dictator Kim Jong-un, was murdered through the use of the VX nerve agent, a chemical weapon under the Chemical Weapons Conventions that North Korea is known to possess.

The investigation quickly embroiled Malaysia and North Korea in a diplomatic crisis. In the early days of the investigation, Malaysian authorities named several North Koreans as suspects, including two individuals who hid in the North Korean Embassy. North Korea’s ambassador to Malaysia, Kang Chol, refused to appear after being summoned by Malaysia’s Ministry of Foreign Affairs. Malaysia responded by declaring Chol persona non grata and expelling him from the country; in a tit-for-tat reaction, North Korea designated Malaysian Ambassador Mohamad Nizan Mohamad persona non grata as well.

The assassination and its aftermath pose interesting questions of international law. Below, I review the relevant law concerning the assassination, the harboring of criminal suspects in an embassy, and the restrictions placed on freedom of movement.

 

Kim Jong-nam’s Assassination

At first glance, an assassination is a straight forward violation of international law. However, the doctrine can be muddied by distinctions between an “assassination” and a “targeted killing.” The statements provided by the United States Government in defending strikes against enemy combatants provide perhaps the clearest state positions on what constitutes a targeted killing.

A 1989 U.S. Government memorandum regarding E.O. 12333 (an executive order that in part reiterated the ban on assassination) concluded that the overt use of military force against “legitimate targets in time of war, or against similar targets in time of peace where such individuals or groups pose an imminent threat to the United States . . . as determined by a competent authority, does not constitute assassination . . . and would not be prohibited . . . by international law.”

More recently, Attorney General Eric Holder defended the U.S raid on Bin Laden’s compound as targeting an “enemy commander in the field.” Former State Department Legal Adviser Harold Koh argued that the targeting of “specific high-level belligerent leaders” does not constitute assassination when a state is “acting in self-defense or during an armed conflict.”

In contrast, Louis Beres argues that an assassination during peacetime is presumptively a violation of international law as a crime of aggression or terrorism.[1] Article I of the Definition of Aggression (General Assembly Resolution 3314 (1974)) provides that aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another state. The Definition of Aggression further provides that “[t]he first use of armed force by a State in contravention of the Charter shall constitute a prima facie evidence of an act of aggression.” Article 3 of the Definition of Aggression notes that “[t]he sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State” qualify as an act of aggression. The Definition of Aggression in concert with UN Charter’s Article 2(4), which obligates states to refrain from “the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations,” is commonly considered to constitute an international ban on assassination during times of peace.[2]

It is not necessary that North Korea’s assassination take place against an official of the Malaysian government or even a Malaysian citizen. The assassination involved North Korea utilizing armed force to violate the political independence of Malaysia by killing an individual on Malaysian soil in violation of Malaysia’s laws.

It is important to note that Article 51 of the UN Charter provides an exception for individual self-defense in the case of an armed attack. However, even under a broad conception of anticipatory self-defense, North Korea does not have a justification for killing Jong-nam under Article 51. There are no publicly reported facts that would tie Kim Jong-nam to any armed attack threat against North Korea.

The best argument that the assassination was a “targeted killing” would be under the international law concerning ongoing hostilities. A peace treaty was never signed between North and South Korea, so there is a reasonable argument that even though the conflict is “frozen,” there are still ongoing hostilities.

In wartime, there are two regimes under which an assassination must be evaluated. First, assassination is specifically considered illegal to the degree that it involves (1) targeting an individual and (2) the use of treacherous means.[3] The concept of “treacherous” is explained in Protocol 1 of the Geneva Convention’s prohibition on perfidy. It is important to note that North Korea is a state party to Protocol 1. There is an argument that North Korea violated the prohibition on perfidy when it used the two suspects, who were dressed as civilians (and who claim to be unaware of their actions) to attack Jong-nam. Even if the two suspects were not civilians and were actually agents of North Korea’s armed forces, they arguably committed a war crime by killing Jong-nam while out of uniform.[4]

The next layer of analysis comes from an evaluation of a targeted killing. First, could Jong-nam be considered a lawful target? Second, was the attack on Jong-nam necessary and proportionate to the threat imposed?

The publicly available facts do not favor the legality of North Korea’s actions. Even during hostilities, a noncombatant cannot be the object of an attack. There does not appear to be a case for Jong-nam to be considered a combatant of South Korea. Although there have been rumors that Kim Jong-nam considered defection to South Korea in order to serve as a head of government in exile, South Korean officials say Jong-nam never proposed to defect and had stated that he had no interest in politics. Others have speculated that China continued to harbor Jong-nam in Macau in case of North Korean regime change. Even if true, Jong-nam’s status as a potential political leader is much different than a “combatant” even if North Korea considered him a threat to the current regime.

 

Harboring of Persons of Interest in an Embassy

Regardless of whether the killing of Kim Jong-nam violated international law, it clearly violated Malaysian domestic law and the Malaysian authorities charged the two women suspected of applying the VX nerve agent with murder. However, international legal protections for diplomatic staff and property have stymied the investigation as two men accused of assisting in the murder hid in the North Korean embassy. One of the men, Hyon Kwang-song, is an embassy employee who claims diplomatic immunity, and the other, Kim Uk-il, is an employee of North Korean state-owned airline Air Koryo.

International legal protections concerning diplomatic officials and embassy property are generally strong as they are considered customary international law and are codified in the 1961 Vienna Convention on Diplomatic Relations. Article 22 of the Convention explains the “rule of inviolability,” which holds that the agents of a receiving state may not enter the embassy except with the consent of the head of mission. This provision effectively sheltered both North Korean suspects while they remained in the embassy. Further, as second secretary of the embassy, Hyong Kwang-song was also protected by articles that immunize diplomatic personnel. Article 29, which exempts diplomats from any form of arrest or detention, and Article 31, which immunizes diplomats from the criminal jurisdiction of the receiving state, protected Hyon Kwang-song from prosecution.

The principles of inviolability are often respected even in highly contentious diplomatic standoffs. The immediate response of Malaysian authorities was to simply settle in for a long wait. The ultimate resolution ended in a political compromise that also addressed the issue of movement restrictions on both states’ nationals.

 

Restriction on Foreign Citizens’ Freedom of Movement

In response to the back and forth declaration of each other’s ambassadors to be persona non grata, North Korea escalated the situation by banning all Malaysians in North Korea (eleven in total) from leaving the country. The eleven largely included embassy staff and their families. The North Korean state news agency called it a temporary ban that would remain in place “until the safety of the diplomats and citizens of the DPRK in Malaysia is fully guaranteed through the fair settlement of the case that occurred in Malaysia.” Malaysian Prime Minister Najib Razak responded by calling the ban a hostage-taking and by imposing his own ban on nearly one thousand North Koreans from leaving Malaysia.

Generally, freedom of movement is a protected right under international law. Article 13(2) of the Universal Declaration of Human Rights states that “[e]veryone has the right to leave any country, including his own, and to return to his country.” While the Universal Declaration of Human Rights is not a treaty, its proclamation by the UN General Assembly and subsequent covenants have led some to conclude that it is in whole or in part customary international law.

It is also notable that Article 12(2) of the International Covenant on Civil and Political Rights, while not customary law, is widely accepted. It states that “[e]veryone shall be free to leave any country, including his own” and provides certain exceptions for a state to restrict movement. Malaysia is not a party to the ICCPR. However, the ICCPR may be binding on North Korea. It is a party, but notified the UN Secretary General it wished to withdraw from the ICCPR in 1997. The Secretary-General considers North Korea to be unable to withdraw from the ICCPR unless all parties to the ICCPR agree to allow the withdrawal.

If the standards under the UDHR are applied to both parties, it is likely that there are violations on both sides of the dispute. First, Malaysia’s prevention of the North Korean suspects from leaving is permissible under the “public order” exception and is proportional to the need. There were a limited number of suspects and the one suspect that was interviewed early in the investigation was promptly released and deported upon finding that there was a lack of evidence to prosecute. Second, North Korea’s restriction on the repatriation of all Malaysian nationals is a violation under the ICCPR. Neither the national security nor public order exceptions form a legitimate basis for prohibiting the exit of all Malaysian nationals. Also, depending on the interpretation of “national origin” under paragraph 18 of General Comment 27, North Korea’s designation of Malaysian nationals as prohibited from exiting likely violates the ICCPR because of the general nature of the designation. Third, the Malaysian restriction on all North Koreans in Malaysia is also likely in violation of the “national origin” prohibition. Since Malaysia acted in response to North Korea’s restriction, Malaysia may argue that its ban fits the national security exception, however, its actions fail the proportionality requirement. Since there are nearly one thousand North Koreans in Malaysia, it is difficult to imagine that a restriction on all one thousand is proportional to the eleven restricted Malaysians.

 

Conclusion: A Political Solution to a Legal Thicket

The solution to the diplomatic standoff between Malaysia and North Korea was ultimately brokered outside of a legal process. While the violations of domestic and international law may have raised tensions between the two parties, it appears that there will be no formal legal consequences. At the end of March, both states reached a deal that provided for the following: (1) nationals of both states to return home; (2) Malaysia to release Kim Jong-nam’s body to North Korea; (3) Malaysian authorities to enter the North Korean embassy and question the North Korean suspects; and (4) Malaysia to allow the two remaining North Korean suspects to leave Malaysia.

Prime Minister Najib stated that Malaysia would not sever diplomatic ties with North Korea over the assassination and stopped referring to the assassinated man as Kim Jong-nam. Reuters quoted one North Korea expert as stating that Malaysia simply stopped pursuing the issue with North Korea because it did not have interest in the “palace intrigue” and placed higher importance on the return of its nationals.

North Korea may suffer from the fallout politically. Malaysia was previously one of the few places that allowed North Koreans to enter visa-free. Malaysia is also one of the few foreign markets open to North Korean labor. It appears that may be beginning to change. Dennis Ignatius, a former Malaysian diplomat, predicted that the relationship “is going to go into cold storage for a very long time.”

However, the decision to settle the dispute politically leaves the two female suspects in custody in a precarious position. The theory put forth by both suspects is that they were unwitting accomplices to the murder. The defense attorney for Siti Aisyah argued that the release of one of the North Korean men weakened his ability to demonstrate that his client was unaware of her actions. The legal process of the case will continue, but it will do so in Malaysian courts and with little risk to North Korea.


[1] Louis R. Beres, The Permissibility of State-Sponsored Assassination During Peace and War, 5 Temp. Int’l & Comp. L.J. 231, 233 (1992) (discussing the legality of assassination when no state of war exists).

[2] Id.; Mark V. Vlasic, Assassination & Targeted Killing – A Historical and Post-Bin Laden Legal Analysis, 43 Geo. J. Int’l L. 259, 269-71 (2012).

[3] Mark V. Vlasic, Assassination & Targeted Killing – A Historical and Post-Bin Laden Legal Analysis, 43 Geo. J. Int’l L. 259, 278 (2012).

[4] Michael N. Schmitt, State-Sponsored Assassination in International and Domestic Law, 17 Yale J. Int’l L. 609, 635-36 (1992).

 

President Trump’s Budget Blueprint and U.N. Blue Helmets

Written by Tracy Nelson

On March 16th, President Trump released an initial budget outline for fiscal year (FY) 2018. The outline indicates a $37.6 billion request to fund State Department and USAID operations, including Overseas Contingency Operations (OCO) funds. This is a 25% decrease from the $50.1 billion requested by the Obama administration for FY17. While President Trump’s budget outline does not give exact figures on the level of reductions to funding for the United Nations and U.N. peacekeeping efforts, it is apparent that they will be subject to decreases in the final budget proposal expected later this month. United States involvement in and contribution to these programs is controversial and often the target of conservative criticism. However, despite continued conversations about the role and participation of the United States in the United Nations and its programs, funding has remained at a level relatively consistent with international expenditures. As congressional action on FY18 appropriations will begin shortly, the success of President Trump’s proposed funding cuts will likely depend on the international events and security concerns of the next several months.

In the FY18 budget outline, the Trump administration suggests that they will not request funds to contribute to peacekeeping efforts above 25% of total U.N. peacekeeping costs. The proposed cuts to peacekeeping efforts will leave an already lean program further strapped for resources, thereby inhibiting the United Nations from pursuing peacekeeping operations in new regions and potentially hastening the withdrawal of forces from ongoing operations. The cuts may further undermine the future of international cooperation and stability. As E.U. Foreign Policy chief Federica Mogherini said, “[i]t is essential for us that we all keep investing in these U.N. agencies. They are as important to global peace and security as defense spending – or even more.”

President Trump’s budget blueprint is not the first time that U.S. officials have discussed decreasing peacekeeping contributions. Levels of expected peacekeeping contributions are assessed through a formula similar to that used to assess contributions to general United Nations expenditures. The United States has traditionally been expected to contribute a larger share of funds towards peacekeeping efforts than any other country due to its financial means and role as a permanent member of the security council.  In the 1990s, President Clinton signed legislation that capped U.S. contributions to peacekeeping efforts at 25% of total costs. The United Nations continued to assess the United States at levels above this cap, leading the United States to incur arrears to the organization and stretching collective peacekeeping resources thin. In December 2000, the United Nations General Assembly lowered the assessed contribution rates for the United States, committing to a progressively decreasing rate of assessment for peacekeeping and a 25% target. Congress passed legislation recognizing this plan, continuing the cap, and providing for the payment of arrears as the United Nations reached the 25% target. However, beginning in 2001, this cap was periodically adjusted in order to meet the assessed levels of support requested.

The budget cuts proposed by President Trump’s “skinny budget” go much further than those of past presidents. In the FY18 budget outline, the Trump administration suggests that they will not request funds to contribute to peacekeeping efforts above 25% of total U.N. peacekeeping costs. Currently the total international budget for such efforts is approximately $7.87 billion, making President Trump’s proposed ceiling for U.S. funding $1.97 billion. In FY17, the United States is expected to contribute 28.47% of the total peacekeeping budget or approximately $2.24 billion. Assuming that total peacekeeping expenses remain relatively stable, there will be a $270 million gap between the amount assessed and the amount requested for FY18. Such a cut would be the first time since 2001 that the 25% cap on peacekeeping support has been enforced. State Department sources report that they’ve been told to expect a cut to peacekeeping resources that might be even larger, in the neighborhood of 40% or approximately one billion dollars. The Trump administration is also pursuing cuts to total peacekeeping expenses in addition to the percentage for which the United States is responsible. Earlier this spring, Ambassador to the United Nations Nikki Haley raised concerns about peacekeeping resource allocation and effectiveness within the Security Council. She specifically highlighted concerns about the peacekeeping mission in the Democratic Republic of the Congo, ultimately securing a reduction in the authorized force size by three thousand troops. The United Nations also voted unanimously to conclude the peacekeeping mission in Haiti in October of this year. These agreements will help to reduce the overall cost of peacekeeping efforts and reduce resource constraints should the United States make dramatic reductions to its financial support of U.N. programs.

 

Likelihood of Successful Reductions: Congressional Opposition and Recent International Action

Despite the administration’s gusto and increasing calls for a reduced role for the United States in international organizations, this proposal will likely face an uphill battle in Congress. Democrats have been heavily critical of the proposed “skinny budget.” However, opposition to these budget cuts is not limited to one political party. Senator Lindsey Graham (R-SC), chairman of the Senate Committee on Appropriations Subcommittee on State, Foreign Operations, and Related Programs (SFOPS), called President Trump’s proposed cuts to the State Department’s budget “dead on arrival.” He specifically expressed his concern about the administration’s seeming lack of support for soft power programs, including aid to international organizations, and noted the importance of these efforts for the larger foreign objectives of the United States. Representative Hal Rogers (R-KY), Sen. Graham’s counterpart in the House of Representatives, did not take as strong of a stance but noted his concern that all of the “diplomatic tools at our disposal” are fully and responsibly used. Unless President Trump’s budget can gain the full support of the SFOPS chairman, these unprecedented and harsh cuts will struggle to make it out of committee and into the larger appropriations measures considered by the full Appropriations Committee and Congress as a whole.

However, recent international developments might help lessen resistance to these deep budget cuts. In the past several weeks, the U.S. military has carried out strikes targeting ISIS in Afghanistan and the Assad regime in Syria while increasing its naval presence in the waters surrounding North Korea in response to potential nuclear testing. The United Nations and its peacekeeping efforts have not proved useful for addressing the issues at hand. While U.N. peacekeepers are engaged in sixteen missions spanning the globe, they are not currently involved in any of the regions in which these recent U.S. actions have occurred. Due to a Russian veto, the United Nations Security Council declined to address the Assad regime’s use of chemical weapons. Ambassador Haley said that the United Nations “[failed] to prevent the North Korean nuclear threat.”

These recent events could be used by the Trump administration and its congressional allies to suggest that the mission of U.N. peacekeeping efforts, and the United Nations as a larger organization, is out of touch with American interests and priorities. Should military power continue to be far more important than soft power in President Trump’s international strategy, as these events suggest, this might necessitate and rally support for a shift in resource dedication to U.S. military efforts. The ability of the Trump administration to achieve its desired budget cuts, and the future of the U.N. peacekeeping program, will thus turn largely on the international events of the next several months in the lead up to the release of the final budget proposal and the subsequent congressional process.

 

A Closer Look at the Korean Constitutional Court’s Ruling on Park Geun-hye’s Impeachment

Written by Hyun-Soo Lim

On March 10th, 2017, the Constitutional Court of the Republic of Korea unanimously approved the National Assembly’s December 2016 vote to impeach President Park Geun-hye. The Court’s decision brought a long-awaited end to the uncertainty surrounding Park’s fate, whose approval ratings fell to an embarrassing 4% after an immense corruption scandal broke out in October 2016 revealing that Park granted excessive control over national affairs to her long-time friend, Choi Soon-sil.[1]

The widely-celebrated decision made Park the first president in Korean history to be ousted by the judiciary. The 89-page decision has been praised for its remarkable clarity in writing style and the minimization of political controversy through a unanimous holding. The Court dispelled concerns that its conservative ideology (currently consisting of 7 conservative/right-of-center Justices, and only 1 progressive)[2] may influence the legal analysis of the impeachment.

Put simply, the decision can be boiled down to this: Park’s “acts of violating the Constitution and law are a betrayal of the public trust,” thereby leading the Court to conclude that the “benefits of upholding the Constitution by dismissing her are overwhelming.”

The Court began by addressing the procedural complaints Park’s attorneys raised. Despite the embarrassingly irrational and absurd behavior of Park’s legal team, which cast doubt as to whether they would accept any decision against their client, the Court went to great lengths to resolve their concerns.

First, Park’s counsel challenged the National Assembly’s drafting and passing of the impeachment bill, claiming namely that i) the evidence presented to the Assembly at the time of voting was inadequate because it consisted of news articles and the indictment (and not results of an independent investigation by a judiciary committee); ii) the bill passed without any open debate on the floor; and iii) the bill contained multiple grounds for impeachment that were not clearly demarcated, thus preventing the Assembly Members from voting on each ground separately. In response, the Court highlighted that nothing in the procedure was illegal or unconstitutional, and stated that the judiciary must respect the political branch’s discretion over its decision-making procedures.

Park’s procedural claim that the decision by an 8-member Court infringed upon her right to be tried by nine Justices was dismissed with even a stronger tone. The Court retorted that, given that a replacement could not realistically be appointed in a timely manner, this “is ultimately a claim that there should not be a hearing, essentially resulting in neglect of the current state of a constitutional crisis.” The Court also reminded Park that there is no constitutional violation as long as there are seven or more Justices participating in the decision.

It then moved on to the four central claims in the impeachment bill:

On abuse of power in appointment of civil servants

The bill alleged that Park ordered the demotion of civil servants in the Ministry of Culture, Sports and Tourism in retaliation for their interference with Choi Soon-sil’s pursuit of private interests. The Court did find that the ministerial staff were demoted or dismissed based on Park’s orders, but deemed the evidence insufficient to conclude that the demotion occurred to protect Choi’s interests.

On Park’s infringement of the freedom of speech/press

The bill attempted to establish that Park pressured Segye Ilbo (a Korean newspaper) to fire its CEO for publishing an exposé suggesting that Chung Yoon-hoi (Choi Soon-sil’s ex-husband) was running the presidential office like a puppet master. The Court found that Park encouraged her staff to “thoroughly investigate” the Blue House leak that led to the exposé. Nonetheless, the Court held that there was insufficient evidence to conclude that Park was directly involved in the pressure exerted on Segye Ilbo.

On the duty to protect the right to life and to faithfully carry out presidential responsibilities

Park’s utter failure to direct rescue efforts for the tragic sinking of the Sewol Ferry in April 2014 that killed more than 300 people, most of them high school students, was a major source of distrust in her presidency. The impeachment bill included this failure as a basis for impeachment under Park’s duty to protect the right to life of citizens and the duty to faithfully carry out her presidential responsibilities. While recognizing the tragedy of the incident, however, the Court held that “a crisis does not give rise to specific duties to act, such that the President must participate in rescue efforts directly.” The panel also ruled that the constitutional duty to “faithfully carry out responsibilities” is “a relative and abstract duty” that cannot be adjudged in an impeachment proceeding.

On the abuse of power in granting political power to Choi Soon-sil

The Court found that Park had ordered Ahn Jong-bum, the Presidential Policy Advisor, to establish two dubious foundations under Choi’s control, extorting more than $69 million from Korean conglomerates. The Justices unanimously held that these orders were not legitimate public duties and that they violated the Constitution, the Public Servants Act, the Ethics of Public Servants Act, the businesses’ freedom of corporate management, and the right to property.  Park was also found to have violated the law that requires civil servants to protect official secrets, as she had a presidential adviser pass on many official documents with sensitive information to Choi (allowing Choi to edit her speeches, give feedback on cabinet meeting notes, etc.).

In sum, the Court only recognized (as legitimate for the purposes of impeachment) the last prong, the abuse of power to benefit Choi Soon-sil. The Court then discussed whether this abuse of power was grave enough to warrant impeachment:

“The President must not only exercise one’s privileges in accordance with the Constitution and the Law, but also make transparent one’s exercise of official duties to be accountable by the public. Yet, [Park] thoroughly concealed from the public Choi’s interference in national affairs, denying the allegations and even criticizing those who raised the concern each time the issue came to light. Therefore, the National Assembly and the media could not properly function as checks and balances. Moreover, the defendant engaged in, and supported, Choi’s pursuit of private interests . . . . [This] occurred throughout her presidency in a persistent manner . . . . Such unconstitutional and illegal acts damaged the principle of a representative democracy and the rule of law.”

The Court further highlighted that Park refused to undergo questioning by prosecutors and denied authorities access to search her presidential compound, despite her earlier promises that she would faithfully comply with prosecutorial inquiry. According to the Court, Park Geun-hye’s statements gave no indication that she has the “will to safeguard the Constitution” or to refrain from repeating the illegal acts.

What is next for Park Geun-hye?  

The immediate effect of the ruling was to strip Park of her presidency, which removed her immunity from prosecutorial investigations. The Constitutional Court stressed that it ruled on the legitimacy of the National Assembly’s decision to impeach, and not on Park’s criminal guilt. Whether Park will face criminal charges depends on a separate set of proceedings, which are well under way as Prosecutors have recommended 13 charges against Park (including abuse of power, coercion of donations, and the sharing of state secrets). On March 30th, Park was formally arrested under corruption and coercion charges; she faces trial in the coming weeks.

While there is no possibility of appeal of an impeachment ruling, Park will likely fight the criminal charges until the very end. She was silent on whether she accepts the Constitutional Court’s ruling, which elicited much criticism from opponents who see it as a sign of no repentance; her lead attorney has already told reporters that he cannot accept the Court’s decision, arguing that “the biased Korean media, coupled with left-leaning and North Korean sympathizing labor unions, have led anti-Park protests to the streets of South Korea.”

Regardless of the outcome of the criminal proceedings, the impeachment of Park marks a significant turning point in Korean political history. Park has been a unique and persistent force in Korean politics since 1974, when she replaced her assassinated mother as the acting First Lady to the dictator, Park Chung-hee. Many regard her popularity to be owed largely to her father’s contribution to Korea’s dramatic economic development. There is reason to celebrate this “end of the Park Chung-hee era or fantasy” which the Constitutional Court of Korea solidified with its approval of the impeachment. Now, we can only hope for the beginning of a renewed democracy.


[1] For a timeline of the corruption scandal and the impeachment, see Bryan Harris,  Timeline: Downfall of Park Geun-hye, Financial Times (Mar. 9, 2017), https://www.ft.com/content/9e5b361e-bde8-11e6-8b45-b8b81dd5d080.

[2] The Constitutional Court is usually comprised of nine Justices, each with a six-year term. However, Park’s case had to be heard by eight Justices because the term of one of the Justices had ended on February 1, 2017.

Grey Zones in the International Law of Cyberspace

Written by Michael N. Schmitt

In 2015 and 2016, hackers affiliated with the Russian government broke into servers of the U.S. Democratic National Committee (DNC). The subsequent release of documents hurt Democrats in Congressional races, led to the resignation of the DNC Chairperson, created tension between the Clinton and Sanders camps, and, above all, figured prominently in the race for president….

Book Review: Europe’s Justice Deficit?

Europe’s Justice Deficit? Edited by Dimitry Kochenov, Gráinne de Búrca, and Andrew Williams. Oxford, UK: Hart Publishing, 2015. Pp. 510. Price: £59.99 (Hardcover).

Reviewed by Daniel Listwa

Speaking in October 2014, László Andor, Commissioner for Employment, Social Affairs, and Inclusion of the European Commission, surveyed the damage of the 2008 financial crisis and the sovereign debt crisis that followed it in 2010. In addition to unemployment and increased poverty, Andor warned of a subtler, though no less nefarious, concern: the growing socio-economic inequality between the EU’s Member States. These developing “imbalances and inequalities,” he cautioned, threatened “the cohesion of the EU as a whole.”[1] Faced with the potential failure of the European experiment, Andor suggested that hope could be found in the concept of greater solidarity, meaning a strengthened commitment by each Member State to the common concern of all the citizens of the EU.

Although the concept of solidarity, alongside the related notion of “social justice,” can be found in the EU’s founding texts—for example, in Article 3(2) of the Treaty on European Union (TEU)[2]—it has received far less than its due amount of attention. The terms invoke substantive notions of duty and the collective movement toward a common ideal. But what such a substantive ideal is has been left largely undefined. Unlike in the United States, where constitutional discourse is dense with the normative themes of liberty and freedom, public reasoning in Europe lacks an analogous set of widely shared commitments, save perhaps the “market freedoms” spelled out as fundamental in the Treaty on the Functioning of the European Union (TFEU)[3]: the free movement of goods, workers, services, and capital. While the economic objectives of market integration have been well-articulated and feature prominently in public debate, the broader social goals of the European project are much less firmly anchored.

This is a problem. As we have seen play out over the last few years—and with much greater ferocity in the last couple—resting the justification of European integration on purely economic motives is far too thin to withstand the ravages of time. As soon as the economy stops working for everyone—or the perceptions of such a change occurs—people will demand an out. One need not search hard for evidence of such a phenomenon. No argument was more ubiquitous within the Brexit camp than the claim that Britain spent £350 million a week on EU membership with little in return.[4] Casting EU membership as more akin to an unused gym membership than a bond of solidarity among people, the Brexiteers won the referendum in large part by convincing the populace that the EU just was not worth the trouble.

Although first published before the Brexit vote, one can understand countering that narrative as sitting at the heart of Europe’s Justice Deficit?, a collection of essays by leading academics and young scholars that offers a robust conversation about the legal and philosophical aspects of justice in Europe. As the editor-contributors Dimitry Kochenov, Gráinne de Búrca, and Andrew Williams, two lawyers and a philosopher, respectively, describe it, the intention of the volume is to rectify the gap in the public discourse by exploring the relationship between justice and law in the European Union. The collection makes significant headway towards that goal, bringing a sense of structure and cohesion to an important discussion and leaving the reader with a strong conception of the important questions that need to be asked and perhaps a few answers as well.

The collection is structured fluidly, building like an exchange between the contributors, who, while sometimes disagreeing, push forward two primary themes, which the editors concisely summarize: “first, normative, that it is appropriate to talk about justice in terms of the EU; and second, empirical, that justice in [the European] context has been, despite exceptions, inadequately theorized and examined academically and institutionally” (p. 1). Within that conversation are a number of familiar voices and ideas, such as Jürgen Neyer (p. 221) and Rainer Forst’s (p. 227) respective cross-referencing discussions of the justice as justification; but some contributions, such as the co-authored chapter by Juri Viehoff and Kalyso Nicolaїdis (p. 277), are fresher in their approaches and show significant engagement with the other chapters in the volume. The result is dynamic survey of important contemporary views, an opening volley in what the editors clearly hope will be a more robust, interdisciplinary debate.

While a relatively free-ranging collection, the voices of the three editors provide a strong thematic structure. After an introductory chapter jointly authored by Kochenov and Williams, chapters written by each of them, respectively, follow. These chapters set out a number bigger themes around which much of the argumentation that follows centers. In the final chapter, de Búrca ties these various lines together—not in a neat bow, but in the shape of a question mark—stressing the need for further debate to contextualize consideration of justice within the study of democracy and human rights in European law (p. 459).

As the title suggests, the central focus of the collection is a deficit of justice—a metaphor borrowed from the mature literature about the democratic deficit in Europe. We may all agree that that EU strives to be democratic, but is there a similar consensus that it ought to be just—and if so, what does justice look like? Williams’s chapter begins with a useful explanatory account of why it is that no robust consensus exists, despite the TEU’s assertion of “social justice” as a guiding value. In part this is because it was once believed that the central focus of the process of integration, the building of the internal market, would lead to prosperity for all, making choices between conflicting values relatively moot. In the name of that common market, national economic boundaries were removed and infrastructure was built. Looking at the allocations of funds in the EU budget, for some time it did appear that a process of redistribution was taking place and countries like Ireland seemed to benefit greatly from membership. The hidden problem of solidarity, however, became increasingly difficult to pave over with the language of the common market in the aftermath of the two recent recessions. As austerity became the guiding principle of European economic policy, the narrative of increasing fairness and equality within the EU rang with much less truth. As Ireland, Greece, Portugal, and Spain suffered mightily while recovery took hold elsewhere in Europe, albeit slowly, it could no longer be so easily claimed that membership in the EU brought with it the movement of wealth from the centers of prosperity to the periphery.

The new economic reality has given rise to a need to address directly the issue of redistributive justice in the context of the European Union. When it can no longer be assumed that whatever is being done now will promote the prosperity of every Member State, the question of what justice between the member states looks like must be asked. As Kochenov writes in his chapter, even a cursory survey of academic work reveals a neglect of the subject: “deviations from the main trend of not awarding justice any importance whatsoever are so rare that one can legitimately conclude that justice considerations barely play any role at all in the literature” (p. 27). Kochenov identifies three ways in which scholars tend to approach the subject, which he refers to as “presumed justice, rhetorical justice and silence about justice” (p. 21). His exploration of these three approaches foretells much of what follows in the volume.

The first approach—that of presumed justice—takes as its starting point that the EU was formed around the normative vision of uniting the European states in order to prevent the repetition of the type of conflict and loss that characterized the twentieth century in Europe. As Danny Nicol discusses in his chapter, such a perspective alludes to justice only insofar as that it assumes the “quasi-religious belief” that the radical vision for a reorganized international sphere, as offered in the Treaty of Rome, “basically met the demands of justice” (p. 165). Rather than being subject to any significant degree of scrutiny itself, this understanding of justice through integration is employed to defend and motivate the growth of the EU and its institutions. This utilization of justice bears relation to the second approach Kochenov identifies, “rhetorical justice,” which “aims at concluding the democratic deficit debate with appeals to justice” (p. 28). This approach, which can be seen in Neyer’s chapter, narrows justice to a de-politicized, procedural concept that is offered as an alternative source of legitimacy to the supranational state (p. 211). Neyer’s perspective, arguing for justice as justification, attempts to offer an account of justice that has no need for democracy—a claim that elicits responses within the volume, e.g., Forst (p. 227) and Somek (p. 303). regarding the essential role of the political community in determining what is demanded by justice.

The final and largest category that Kochenov considers is “silence”, which is really composed of two approaches: those that discuss EU law without mentioning justice at all and those that take justice to mean whatever is demanded by legal analysis of the case-law in the conventional sense. Like the two categories before, this approach is marked by a narrowing of the meaning of justice to something largely procedural in practice. Leaving aside the particular labels Kochenov applies, certain commonalities are evident in each of these ways of discussing justice. The shared features point to the conceptual barriers preventing this issue from being addressed more thoroughly. As Kochenov describes them, all of these strategies assume for justice a meaning so narrow that their point of departure virtually eliminates the possibility that the EU could have obligations that would require significant policy changes in the name of justice. In other words, they implicitly defend the status quo in a way that minimizes the EU as an institution from which justice can be demanded. The claim is a controversial one and it generates both criticisms and supporters within the volume, particularly with regard to transferring the ideas from the academic community to the Union’s political realm.

Suryapratim Roy’s chapter focuses on the institutional level, noting that the sparing use of the term ‘justice’ in the context of the ECJ, as well as the EU more generally, has mostly been employed “as a rhetorical device to support functioning institutional processes”, a phenomenon that leads him to consider justice an empty signifier insofar as it is used within the context of the EU and its institutions (p. 83). Devoid of its referent, justice becomes a tool for defending the status quo, or as Roy writes “a tautological institutional self-legitimation mechanism.” For instance, in the case of Kӧbler, the ECJ makes use of the term ‘justice’ only in order to link “the sound administration of justice” with the “stability of law and legal relations.”[5] This usage, Roy asserts, is consistent throughout the case law.

Such an approach reflects an essential convention in judicial reasoning, one that allows the judges of constitutional courts to engage in independent review and revision of law while maintaining the trust of the other actors in the system, including citizens, legislators, and executives. In the case of the ECJ, this applies both on the supranational and state level. The limits inherent in this role, however, imply that while the judicial actor can stretch and otherwise transform the nature the legal system, the advancement of broader claims for justice, such as those that could include redistribution and socio-economic equality, require the involvement of the EU’s more explicitly political institutions.

In this way, the justice deficit cannot be extricated totally from the democratic deficit, a point that becomes a central theme in many of the contributions to this volume, particularly in the enlightening discussions by Gerstenberg (p. 67) and Menéndez (p. 137). The enduring challenge to the democratic legitimacy of the EU has been seen by some as making deeper demands for justice irrelevant. As Williams discusses, the mainstream thought seems to be that “if the EU is deemed illegitimate (because it is undemocratic, corrupt, inefficient, unrepresentative, etc.) then substantive notions of justice cannot have any real place here” (p.35). By ‘substantive’ Williams means those “issues focused on the fairness of distribution of benefits and burdens within a community.” In many ways, much of the volume is about countering this claim, arguing for why the consideration of social justice should not be shunted away. The normative justifications offered by the contributors vary quite considerably, but it is worth considering in some detail the argument offered by Williams—in part because of the fundamental difficulties it reveals.

Williams’s intention is to establish that the EU is the sort of institution from which more substantial obligations of justice could be demanded, and to do so in a way that separates this issue from considerations of democratic legitimacy. To resolve the first step, he offers a “sequence of statements of belief”, which, as he acknowledges, “are vaguely cosmopolitan in character” (p. 34). The initial step is the belief that (1) “our moral obligations to others should not be constrained by historically constructed state borders.” Williams joins this statement with a second assumption: that “if we are to iron out inequalities amongst people wherever they live … then those who are rich should give resources to those who are poor regardless of their location.” The remaining steps go on to establish that such redistribution should be carried out by coordinating institutions that are operated according to “principles of good administration”. Further, and most crucially, he claims that “cross-border institutions” ought to be a part of this redistribution process, given that the obligations are not bound by borders. Together, these steps suggest that there ought to be international institutions engaging in redistribution across states, not as a matter of charity, but as a matter of obligation.

The EU is conceivably a candidate for such an institution, though I consider this an unconvincing argument for the claim that the EU must be the instrument for addressing such an obligation. Leaving unchallenged the cosmopolitan assumption at the center of the argument that cross-border obligations for redistributions do exist, Williams has failed to justify why the EU must be the bearer of justice, as opposed to some other organization, such as the World Trade Organization (WTO). It does not seem to be the case that every cross-border group bears such a responsibility. For example, an international tennis club need not take part in shifting the resources of its wealthier members to poorer ones. In fact, one might think that some of these other institutions are even better candidates. Consider, for example, the UN, which joins together nations of much greater wealth disparities than exist within the EU. For the cosmopolitan-inclined, ought not the gap between Germany and South Sudan present a more pressing obligation of equalization than Germany and Greece?

Williams acknowledges this difficulty, saying that whether the EU would be saddled with these responsibilities would have to be decided “one way or another as a matter of constitutional principle.” In other words, there is a “political decision” that must be made before justice can be demanded from the EU. While Williams treats this as a concern of marginal importance in his broader argument, I take it to reflect a substantial limitation. If we were to grant to Williams that some sort of political decision would have to be made regarding the role of the EU, it remains to be seen who is to make this decision. If we were to settle this question by determining, say, that the ECJ can read such an obligation into the preexisting treaties, then the rest of Williams’s claims regarding how substantive justice could be addressed through the EU’s current abilities and capacities without running afoul of legitimacy claims (besides tangentially in the context those levied against the EU generally) would be on firm grounding. However, it remains to be seen how this ‘political question’ could be answered without having to first address questions regarding the democratic legitimacy of the EU. It appears that Williams has but shuffled to the side the very issue he set out to overcome: the fact that the enduring skepticism regarding the legitimacy of the EU presents an obstacle for addressing substantial norms of justice, including redistribution. Dogged by this persistent matter, it seems unlikely to avoid a state of “permanent quibbling,” which Williams equates to deciding “against the adoption of the obligation.” The result is not a damning one, but it does reveal the deep difficulties that arise when issues of social justice collide with issues of democracy.

The conversation in this volume brings these tensions to the light, making salient that deep moral questions that define the future of European Integration. With Euroscepticism reaching new heights and right-wing political parties increasingly threatening the cohesion of the European project, the EU must reckon with the fact that it has failed to realize the solidarity and social justice declared in its founding documents. If the Union is to emerge with dignity from its current crisis, its leaders must engage in a discourse that grapples with the normative nature of justice. Europe’s Justice Deficit? is a welcome opening salvo in that debate.


[1] László Andor, Imbalances & Inequalities in the EU: Challenges to the Europe 2020 Strategy, Eur. Comm’n (Oct. 10, 2014), http://europa.eu/rapid/press-release_SPEECH-14-684_en.htm.

[2] Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community art. 3, Dec. 13, 2007, 2007 O.J. (C 306) 1.

[3] Consolidated Version of the Treaty on the Functioning of the European Union arts. 45, 49, 56, 63-66 May 9, 2008, 208 O.J. (C 115) 47.

[4] See May Bulman, Brexit: Vote Leave Camp Abandon £350m-a-Week NHS Vow in Change Britain Plans, Independent (London) (Sept. 11, 2016), http://www.independent.co.uk/news/uk/home-news/brexit-nhs-350m-a-week-eu-change-britain-gisela-stuart-referendum-bus-a7236706.html.

[5] Köbler v. Republik Österreich, 2003 E.C.R. I-10239, para. 38.

Understanding War-Sustaining Targeting: A Rejoinder to Iulia Padeanu

Written by Maj Gen. Charles J. Dunlap Jr., USAF (Ret.)

Ms. Iulia Padeanu says, “Accepting that War-Sustaining Objects are ‘Legitimate Targets’ under IHL is a Terrible Idea,” but I say shouldn’t we use means proven to effectively weaken a barbaric enemy while also being more protective of civilians than the alternatives?  In a critique of Professor Ryan Goodman’s article (“Targeting ‘War-Sustaining’ Objects in Non-International Armed Conflict”) Padeanu calls the “broad view of targetable objects is, at best, unworkable and, at worst, truly dangerous.”  Allow me to counter her conclusion by adding to what I’ve said elsewhere on this vitally important topic.

To be clear, Ms. Padeanu is to be congratulated for laying out many of the traditional arguments against virtually any form of economic targeting. She also highlights the proverbial “slippery slope” concerns so often heard in connection with the concept.

Perhaps most of all, her essay illustrates that proponents of attacks on selected war-sustaining targets that can be reasonably and specifically linked to foreseeable battlefield effects have not done a good enough job at explaining how that approach differs from more generalized attacks on economic objects whose connection, if any, to battlefield effects is too peripheral to justify legitimate strikes.

Ms. Padeanu begins by objecting to the Obama administration’s support for attacking Islamic State of Iraq and the Levant (ISIL) oil facilities and cash hoards.  She also says she is more concerned about President Trump because he “campaigned on a promise to ‘bomb the s— out of’ ISIL.”  (Presumably, she would have been equally concerned had Secretary Clinton been elected since she too called for conducting “more intense and effective air strikes” and for “ramping up” airstrikes against ISIL.)

She also thinks coalition targeting of ISIL oil facilities is somehow related to the President’s campaign rhetoric about “taking oil,” claiming that doing so would be, ipso facto, “pillage.”  However, the issue is much more complex than she suggests.  Suffice to say, not every taking from a defeated state is “pillage” (which, incidentally, addresses private property, which oil resources are not).  Regardless, that discussion has nothing to do with the targeting of war-sustaining objects.

Ms. Padeanu also argues that war-sustaining objects can never meet the customary international law standard that limits lawful military objectives “to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”

Whether a war-sustaining object (or any other target) meets that definition is very fact-specific, and one simply cannot generalize that all do or do not meet the requisite factual standard.  In almost all targeting in today’s conflicts, the law is not typically the hard part; rather, it is ensuring that expert analysis is put to the facts to which the law is applied.  In the case of war-sustaining targets, the factual connection must be reasonably direct, and that is – and must be – a case-by-case determination.  The U.S. Law of War Manual provides further direction for decision-makers:

Attacks, however, may not be directed against civilians or civilian objects based on merely hypothetical or speculative considerations regarding their possible current status as a military objective.  In assessing whether a person or object that normally does not have any military purpose or use is a military objective, commanders and other decision-makers must make the decision in good faith based on the information available to them in light of the circumstances ruling at the time. (¶ 5.4.3.2).

We do not know the exact intelligence that the coalition has relied upon to choose its targets, but there is considerable “open source” material suggesting that the particular war-sustaining objects struck were not selected “based on merely hypothetical or speculative considerations.”

The relationship of money to ISIL’s ability to field fighters is very real: a December 2015 article in Atlantic magazine discussed a Lebanon-based Quantum Communications report examining the motivations of ISIL fighters:

[I]nterviews with “internals” expose one of the organization’s most glaring vulnerabilities, especially in the way it recruits and deals with individuals on its home turf in Iraq and Syria.  The fighters identified money as a significant motivator, as significant as jihad itself.  This suggests that reducing [ISIL’s] ability to raise funds will decrease its allure.

With respect to “reducing [ISIl’s] ability to raise funds,” the oil business is a critical factor.  According to Congressional testimony by RAND Corporation analyst Keith Crane, “[o]il and refined oil products are the single most important source of income for ISIL.”  And how does ISIL spend its income?  Aymenn Jawad al-Tamimi, a researcher with the Middle East Forum who sources ISIL documents, said last year that two-thirds of its budget goes to buying weapons and paying fighters.

Even if it were true that some of ISIL’s cash may at some point have been used for, as Ms. Padeanu suggests, “revenue and taxes for the purpose of running schools, building hospitals, and providing services to a population,” that does not mean that ISIL’s cash is not a military object and therefore immune from attack.  Rather, as with any “dual-use” object, a proportionality analysis would apply.  In this case, the fact that two-thirds of the budget goes to inarguably military purposes (and likely more today) means it is hardly unreasonable to strike ISIL’s cash.

Additional open source materials show that the airstrikes on the oil fields – under the aegis of “Operation Tidal Wave II” – were a key reason ISIL fighters had their salaries cut by 50%.  This also had a direct impact on the battlefield.  Assistant Treasury Secretary for Terrorist Financing Daniel Glaser testified before Congress last year that ISIL fighters “are leaving the battlefield as their pay and benefits have been cut or delayed.”  And, there is additional evidence that the cash crunch is also helping to slow the flow of new foreign fighters to replenish ISIL’s ranks.

Thus, in the particular case of ISIL, the linkage between attacks on oil facilities and the degrading of their capability to deploy weapons and fighters to the battlefield is not remote or speculative, but rather direct and documented.  Furthermore, reports from early 2017 indicate that oil and gas sales to the Assad regime “are now Islamic State’s largest source of funds, replacing revenue the group once collected from tolls on the transit of goods and taxes on wages within its territory.”  In other words, attacking war-sustaining oil facilities will not only deprive ISIL of warfighting finances, it will also incidentally affect the Assad regime, which is responsible for a range of war crimes against civilians, including the recent gas attacks.

Nevertheless, Ms. Padeanu believes that targeteers in rule-of-law democracies will ignore the requirement of a factual demonstration that a particular target meets the law’s tight linkage prerequisites.  She imagines the expansion of the war-sustaining target set to include such tangential objects as agricultural land and even ordinary taxpayers.  Candidly, if any actual warfighters ever took such a militarily senseless interpretation of permissible war-sustaining targets as those she speculates about, the entire edifice of the law of war would collapse.

The law of war expects and requires a measure of good faith in order to be effective.  The DoD Law of War Manual embeds “honor” as one of its core principles as a means of memorializing that concept in the minds of U.S. warfighters.  It explains that:

[H]onor reflects the principle that parties to a conflict must accept that certain limits exist on their ability to conduct hostilities…. This acceptance is a prerequisite for the existence and operation of the law of war in the way that the principle of pacta sunt servanda (treaties are binding on parties and must be performed by them in good faith) provides a necessary foundation for treaties to exist and operate as instruments that are legally binding on States.  (¶ 2.6.2.1)

Put another way, if we get to the point where someone thinks it is lawful and militarily lucrative to bomb agricultural land, we are in a situation where concern about the limits of attacks on war-sustaining objects would be the least of our worries.  In a democracy, there has to be some confidence that the armed forces will act with reason and good faith.  Along that line, in the United States, the public has vastly more confidence in the armed forces than it does in any other institution, including, for example, the Supreme Court.

Ms. Padeanu also cites my friend and Yale Law Professor Oona Hathaway’s accurate observation that “[t]he weight of scholarly opinion has long maintained that [war sustaining] objects are not legitimate military targets.”  But to be blunt, scholars are not responsible for defeating ISIL. States are.

State practice – and especially that of “specially affected” states – is critically important in interpreting the parameters of international law generally, and especially, I would argue, with respect to the law of war.  Current state practice is overwhelmingly supportive of attacking certain – albeit certainly not all – war-sustaining targets.  With respect to the particular war-sustaining targets Ms. Padeanu questions, there appears to be international consensus. As Professor Hathaway concedes, “French, Russians, and UK have joined the US in operations against ISIL oil revenues.”

Furthermore, of the sixty-eight countries that are part of the coalition battling ISIL, I am not aware of any that have objected to the strike against the ISIL cash hoard or the oil field attacks.  Contrary to Ms. Padeanu’s claim that it is “unworkable” for the law to provide reasoned judgments as to what war-sustaining objects can be lawfully targeted, the international community considers these operations to be acceptable and quite feasible.

It is not hard to understand why.  As recent events have clearly demonstrated, rooting out ISIL fighters once they have burrowed into urban battlespaces and surrounded themselves with human shields is extremely difficult and profoundly costly to civilians.  The attacks on ISIL’s war-sustaining objects have, however, caused very few civilian casualties, yet have yielded tangible results in the degradation of ISIL’s capabilities.

If we are to meet the security challenges of the 21st century, we need to think about the law of war as much as the International Military Tribunal at Nuremberg did.  Let’s recall that the Tribunal concluded, the “law is not static, but by continual adaption follows the needs of a changing world.”

As I’ve said before, in the case of ISIL, we are seeing an adversary who has an explicit strategy of putting civilians at risk, and states are trying to find principled means to stop them from doing just that.  Striking only those war-sustaining targets that can be reasonably linked to ISIL battlefield capabilities is a development that should be celebrated, not criticized, particularly since this development reduces the risk to civilians.


Maj Gen. Charles J. Dunlap Jr., USAF (Ret.), the former deputy judge advocate general of the United States Air Force, joined the Duke Law faculty in July 2010 where he is a professor of the practice of law and Executive Director of the Center on Law, Ethics and National Security. He holds an undergraduate degree from St. Joseph’s University, and a law degree from Villanova University School of Law.  He is also a Distinguished Graduate of the (US) National War College.  During his 34-year military career, he served at various posts in the U.S., as well as in Korea and the U.K.  Among other assignments, he served as the Staff Judge Advocate for Air Combat Command, U.S. Strategic Command, and as the deputy staff judge advocate for U.S. Central Command.  He has deployed for operations in the Middle East and Africa.  A prolific author and accomplished public speaker, Dunlap’s commentary on a wide variety of national security topics has been published in leading newspapers, blogs, military journals, and law reviews. His blog is Lawfire http://sites.duke.edu/lawfire/

A General Look at Specific Jurisdiction

By Lea Brilmayer

“Success, in domestic and international litigation alike, depends on finding a court with jurisdiction over the defendant. American constitutional law, which governs assertion of jurisdiction even over international defendants in American courts, has developed the subject of personal jurisdiction into a fine art. It’s all a question of whether ‘minimum contacts’ exist between the defendant and the forum, and whether the assertion of jurisdiction satisfies a standard of ‘fair play and substantial justice.’”

Exiting the United Nations: Paths and Potential

Written by Tracy Nelson

On the very first day of the 115th Congress, Representative Mike Rogers (R-AL) introduced H.R. 193, the American Sovereignty Restoration Act of 2017. The bill orders the President to terminate membership in the United Nations and all related agencies, withdraws financial and peacekeeping support for the organization, and retracts the agreement establishing the U.N. headquarters in New York. The legislation collected eight cosponsors and plentiful critics during its first month of existence. While many have reacted strongly to this proposed legislation, the suggestion is neither innovative nor unique but instead part of a much larger history. This article seeks to examine the process of leaving the United Nations, the probability of the United States making such a move, and its linkages to a larger movement away from intergovernmental and international organizations.

Withdrawal from the United Nations and the Indonesian Experience

While the U.N. Charter provides for the expulsion of member nations, it does not outline procedures for a nation to voluntarily withdraw or resign its membership. Article 54 of the Vienna Convention on the Law of Treaties states that a country may withdraw from a treaty in accordance with the procedures outlined in the treaty or by unanimous consent of the other countries bound by the treaty. Article 62 of the Convention allows nations to leave a treaty due to an unforeseen “fundamental change in circumstances,” given that those circumstances were the basis of the original treaty. While this Convention is not technically applicable to the United Nations, nor is the United States a member of the treaty, its principles are generally accepted as customary international law.

Very little precedent exists for potential exit from the United Nations. In 1965, prior to the adoption of the Vienna Convention, Indonesia withdrew from the United Nations. Indonesia objected to the creation of Malaysia and viewed the non-permanent seating of Malaysia on the Security Council as an act of neo-colonialism. President Sakarno sent a telegram to the United Nations withdrawing its membership and also forsaking $50 million in economic and technical aid already earmarked for Indonesia. The next year, General Suharto seized power in a coup and notified the United Nations that Indonesia would resume cooperation with the organization. Because the United Nations had never formally acknowledged Indonesia’s withdrawal, Suharto’s message was accepted and the Indonesian delegation asked to return. By not formally recognizing the withdrawal notice and instead treating the instance as a case of non-cooperation, the United Nations avoided the opportunity to create a policy for exit.

Customary law and a lack of precedent suggest that the United States would have an extraordinarily difficult time leaving the United Nations while abiding by international norms. No clear exit path has been created, either through the terms of the U.N. Charter or through the experience of other nations. Unanimous consent allowing any nation to leave the organization, much less its largest financial supporter, is unimaginable. Finally, a “fundamental change in circumstances” argument might be attempted, but would be weak due to the continued membership of the United States throughout many more drastic periods of domestic and international change. Leaving the United Nations would be extremely difficult to do within the context of existing international legal norms.

Potential for U.S. Withdrawal

This is not the first time that a bill has been introduced to withdraw the United States from the United Nations. Already this year, several bills have been introduced to defund or review membership in the United Nations based on specific positions of the United Nations, like Israel-Palestine issues or environmental policies. Such bills are relatively common and rarely gain traction. However, the motivation behind this most recent bill makes it unique. H.R. 193 instead objects to continued U.S. membership in the United Nations based on the merits of the organization itself, suggesting that the United Nations has a “dangerous agenda” and is “a waste of taxpayer dollars.”A bill identical to H.R. 193 has been cosponsored by a host of Republican representatives and introduced in every Congress since the 105th Congress in 1997, though the bill has never moved beyond referral to a standing committee.

Despite this legislative history, the introduction of H.R. 193 during this Congress has raised eyebrows because of the quick uptick in cosponsorship and the potential support of President Trump. The current legislation has attracted more cosponsors in one month than the bill often has over the course of a whole year. Past presidents have been hesitant to criticize the work of the United Nations or the continued membership of the United States. President Trump, however, was critical of the United Nations on the campaign trail and has reportedly drafted executive orders mandating the review and reduction of U.S. funding to international organizations.  According to Gallup polling, approval ratings for the United Nations have tumbled amongst Americans over the last fifteen years. In 2002, 58% of respondents said that they believe that the United Nations is doing a “good job” in solving the world’s problems, while today that number hovers around 38%.

Despite the seeming swell of public and elected official support for H.R. 193, it seems highly unlikely that the United States would leave the United Nations. Leaving the organization would leave the other treaties and organizations to which the United States belongs unstable and vulnerable. Other critics of the bill suggest that leaving the United Nations would allow China and other rising powers to gain international influence. Furthermore, the bill lacks the congressional support to secure passage. Neither Rep. Rogers nor any of the bill cosponsors sit on the House Committee on Foreign Affairs to which the bill has been referred. While withdrawal may be an increasingly popular policy move, it lacks sufficient support to rationalize upsetting the international order.

Recent Resistance to Intergovernmental Organizations

Regardless of the probability of success of the proposals for a U.S. exit from the United Nations, they highlight a very important recent trend in international law – a push away from intergovernmental organizations. Arguably the most well-known example of this trend is the United Kingdom’s June 2016 “Brexit” vote to leave the European Union. However, the phenomenon is more widespread than just nationalist momentum in the United Kingdom and United States. Since 2012, eight nations have left the United Nations Industrial Development Organization, citing lack of efficacy. In 2016, President Duterte of the Philippines threatened to leave the United Nations in response to the organization’s criticism of extrajudicial killings in the Philippines. Earlier this month, the African Union endorsed the mass withdrawal of its member states from the International Criminal Court. Should this anti-intergovernmental and international organization trend continue, it could spiral and potentially normalize departure from international organizations and increase popular support for the United States to leave the United Nations.

Accepting that War-Sustaining Objects are ‘Legitimate Targets’ under IHL is a Terrible Idea

Written by Iulia E. Padeanu

In a recent article, Professor Ryan Goodman puts forth a controversial argument: “war sustaining” objects in non-international armed conflicts,[1] used to generate revenue for an enemy’s armed forces, should be targetable under international humanitarian law. In office, former president Barack Obama embraced a similar view, condoning strikes against “tanker trucks, wells and refineries,” as well as “storage sites where ISIL holds its cash.”[2] This broad view of targetable objects is, at best, unworkable and, at worst, truly dangerous.

Donald Trump’s rhetoric has been even more concerning. He campaigned on a promise to “bomb the s— out of” ISIL. In the now famous sound-bite, he went on to say that he would also “blow up the pipes” and, generally, “blow up every single inch.” And, so far, President Trump and his Secretary of Defense, James Mattis, have kept Trump’s promise. In his first official day on the job, Secretary Mattis oversaw a total of 31 airstrikes against ISIL in Syria and Iraq.

Targeting “war sustaining” activities, even in the context of the fight against ISIS, sets a dangerous precedent and violates the established rules of International Humanitarian Law (“IHL”). Fighting ISIL is truly “one of the most complex [challenges] the world has seen in recent times,” and it should be done in a smart and decisive way. However, the claim that states should be allowed to target those activities that only contribute to sustaining the war effort of non-state groups is untenable and not the right approach. This complex and desperate fight should not be used by those in power to expand the boundaries of acceptable in-war behavior beyond what is currently permissible.

This would not be the first time President Trump alluded to violating international law. He has previously maintained that, had the U.S. “taken the oil” when it withdrew from Iraq, ISIL would not exist today. Not only is there nothing to suggest that ISIS is dependent solely on Iraqi oil, but what President Trump suggested would have been a violation of the IHL rule against pillage.

Professor Goodman’s argument, if adopted by the administration, would allow President Trump an even wider range of targets in the Middle East, likely resulting in a breach of several other IHL rules. Under Article 52 of the Additional Protocol I (“API”) of the Geneva Convention, the class of objects that can be lawfully targeted are those that “make an effective contribution to military action.” Under this definition, most states agree that only targets that make a direct contribution to military action are targetable. As Oona Hathaway writes, “[t]he weight of scholarly opinion has long maintained that [war sustaining] objects are not legitimate military targets.” Although some states have taken a broad view of targetable objects in the current fight against ISIL, many states reject the view that purely “war sustaining” objects can be targetable. Several academics have similarly rejected this view of targetable objects.[3]

One of the biggest weaknesses of Professor Goodman’s argument is the lack of clear limiting principles. If Professor Goodman and President Obama are correct in suggesting it is legal and reasonable to target oil refineries because they generate revenue for ISIL, where do we draw the line? When taken to its logical conclusion, Professor Goodman’s argument could eventually be used to support notions of scorched earth and leave virtually nothing untouchable in war. Professor Goodman does suggests a few limiting principles: the targetable object must provide “definite military advantage,” and economic contributions that can be traced through strong connections to military action. However, even when taken together, these limiting principles cannot prevent future strikes against other objects (such as agricultural fields and factories) that might provide substantial revenue to ISIL, but that may be civilian in nature and only loosely connected to ISIL’s war activities.

An additional challenge to Goodman’s analysis, hinted at by Marty Lederman, is the complex organizational structure of non-state groups, the wide range of activities they depend on for financial survival, and the civilian nature of these activities.[4] This poses two related issues Goodman does not anticipate.

First, if a non-state group’s sole mission is to wage war, it is easier to conclude that any and all revenue generated supports its sole function as a military group. As such, targeting activities that directly support its military actions would fall within the limitations set by Art. 52 of API. Many non-state groups that engage in war and terrorist activities, however, also operate as political bodies, engage in non-military undertakings, and may even take on governance functions. Even ISIL, a particularly vicious group engaged in truly horrific activities, has hopes of governing and growing into a formal political entity. When a non-state group is actively engaged in war, but also in the collection of revenue and taxes for the purpose of running schools, building hospitals, and providing services to a population, it becomes increasingly difficult to distinguish which revenue-generating operations support military action and what revenue is for political, civilian purposes. Research has shown that ISIL has gone “from being a purely military force to building a system that can provide basic services, such as making sure that gas and food are available, to its new citizens.” Over time, ISIL will likely evolve into “a government whose political decision-making cannot be separated from its military capabilities.” This weakens the direct connection between much of the revenue and the direct military advantage it provides. It further complicates the link between the finances and the military action, in effect rendering Professor Goodman’s limiting principles meaningless.

Secondly, even if ISIL continues its brutal regime without providing much in the way of services, the reality is that its revenues depend as much, if not more, on taxing the population it controls as they do on oil revenues. If Goodman’s argument holds, are the thousands of people ISIL is currently taxing also legitimate military targets? They provide a distinct advantage to ISIL’s military capabilities by providing the group with significant revenue. In a recent Foreign Affairs article, researcher Mara Revkin describes the story of Ahmed, an employee in an advertising agency working in Deir ez-Zor, who was forced to pay 2.5% of his income to ISIL’s bayt al-mal (the financial institution responsible for the collection of money). Ahmed’s relatively small contribution may not compare to the millions of dollars ISIL gains from oil sales, but the collective contributions of civilians (from their personal wages and businesses) can provide the organization with significant financial support. The connection between the taxes and the military advantage may be looser than that between oil revenues and the military, but ultimately, money is money, and if oil revenues can be sufficiently linked to providing ISIL a “definite military advantage,” then why shouldn’t taxes? If taxes can be traced to supporting military action, then can civilians and civilian objects be targeted as “war sustaining” activities and objects? If civilian objects and activities contribute just as much and just as directly to ISIL war activities, how can we argue these are not also legitimate “war sustaining” activities? The dangerous connection between taxing a population and their activities and their “war sustaining” capabilities leads us down a road we do not want to go.

Proponents of Professor Goodman’s theory, and perhaps Professor Goodman himself, might argue that it is not civilians like Ahmed who should or will be targeted, but rather the bayt-al-mal. Even if this may be the case, the argument remains problematic. First, this proposition raises the same issue of unclear links between the revenue and the war activities. If there is proof that all the revenue collected is indeed used to support ISIL’s military campaign, attacks on the financial institution may be permissible under Art. 52 of API. However, the revenue collected could very possibly be used for entirely civilian purposes: building schools, roads, and hospitals. If this is the case, we are back to the same problem discussed above. Secondly, pushing the boundaries of acceptable targets in war will likely create a precedent for targeting clearly civilian activities and objects. Ahmed as an individual may not yet be considered a target, despite the tax revenue he provides to ISIL, but a group of civilians, or a business run primarily for civilians and civilian purposes, could fall under the broader category of targetable objects Professor Goodman proposes.

It is easy to be sympathetic to Professor Goodman’s argument. Proposing a way to weaken one of the most terrifying groups we have ever encountered is an important endeavor. The complications raised by the ISIL example, however, illustrate the dangerous logical end to this argument. If ISIL depends on revenues from taxes and civilian activities just as much as it does from oil revenues, the United States runs the risk of creating a precedent where civilian objects and actions are also considered “war sustaining” and thus targetable. Defeating ISIL should be a priority for any government, but it should not be done at the cost of risking civilian lives and it should not serve as the basis for setting such a dangerous precedent.


 

[1] The categorization and definition of types of armed conflict is complex and beyond the scope of this paper. For more on this, see ICRC Opinion Paper, How is the Term “Armed Conflict” Defined in International Humanitarian Law?.

[2] For the purposes of this piece I will be referring to the Islamic State of Iraq and the Levant as ISIL. The group is also often referred to as ISIS and IS.

[3] See, e.g., HPCR Manual on International Law Applicable to Air and Missile Warfare (2002) (arguing that the connection between revenues generated from oil exports and armed conflict is “too remote” and thus rejecting the “war sustaining” argument); Tallinn Manual on the International Law Applicable to Cyber Warfare (2013) (stating that it would be unlawful to launch cyber-attacks on a state’s oil export industry even if the war effort depended on revenues from oil sales).

[4] “Because ISIL, unlike al Qaeda, is not exclusively a military organization—it holds territory and engages in at least some ‘civilian’ governance functions—the targeting of these facilities and stockpiles raises important issues under the laws of armed conflict.”