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).

 

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