Reminder: The International Criminal Court Does Not Require Consent

The International Criminal Court ("ICC") faces its fair share of critics and supporters. Plenty of today’s social movements call for a less globalist approach to world affairs and a return to national principles and protections. Even supporters of an open world admit that the spurt of globalization following the Second World War came at a cost to certain sectors of a society. The return of these nationalist trends seems to place new scrutiny on the ICC as an effective solution to punish those violators of international human rights. A careful look at the structural aspects of the ICC reveal that the ICC is in a strong position to have a continuous role in international affairs.

The ICC never had the full support of the main international powers. Though the United States played an active role in the formation of the Rome Treaty, ultimately it “unsigned” from the treaty out of fear that United States nationals/soldiers would be subject to prosecution. China never signed on, and Russia never ratified it. In addition, there have been high profile withdrawals from the treaty such as South Africa’s attempt and the Philippines’ recent announcement. With each withdrawal the international community fears an exodus of support and the demise of the court. But the key fact is that the court does not require consent for prosecutions.

The lasting strength of the ICC is the fact that it can gain jurisdiction through the Security Council of the UN. Certainly, by refusing to sign onto the treaty, States can avoid having the special prosecutor open investigations or begin proceedings, but States cannot completely insulate themselves from the ICC. The fact remains that a binding UN Security Council resolution can legitimately bring a case to the ICC. This means that the ICC serves the supplemental role it always was supposed to have: the ICC by design is a court of last resort.

 The subject matter jurisdiction requirements and the gravity requirements keep many if not most of the human rights violators out of the court. But as an international body it does a good job at remaining supplemental to the domestic processes of a State, only stepping in on referral and or unwilling/unable situations. Given this saving strength of incorporating UN Security Council jurisdiction, I think the ICC can survive its current critiques. The political limitations embodied in the Security Council will be the only restricting factor of the ICC, such as with Myanmar, should States continue the pattern to abandon the treaty. But even should an exodus from the treaty occur, the court stands on the strength of the UN itself, and has a good chance of continuing survival because of it. 

By: Matthew Goepfrich

Can We Punch North Korea in the Nose?

Can We Punch North Korea in the Nose?

By: Nicholas Portillo

While the Winter Olympics may have concluded in PyeongChang, tense competition on the ice between Japan and North Korea served as a small reminder as to the precarious state of affairs on the peninsula. North Korea’s continuing nuclear ambition, missile tests (20 in 2017 alone), and flagrant disregard for the world community, has led to serious talks in the White House for new more aggressive measures in response. As first reported in a January 9th Wall Street Journal article, these measures would be a resort to force, rather than diplomacy. Coining the term “bloody nose attack” in the process, the proposed strike would be of a limited nature against a target of interest, such as a military base or missile site.  Such a strike would come as a response to the North Korea’s next nuclear weapon or missile test, particularly if a missile were to fall in the sovereign waters of another State, such as South Korea or Japan. Policy implications aside, the idea of such an attack has sparked a wide spanning debate within the international law community over its legality, or lack thereof, with regards to the international rules of war.

This conversation stems from a mid-January article  by West Point professors Lt. Col. Shane Reeves and Capt. Robert Lawless, who posit that such a strike by the United States would be legal under international law. Based on the parameters laid out in  the U.N. Charter, the United States generally recognizes three circumstances under which international law does not prohibit a use of force:  (1) use of force authorized by the U.N. Security Council; (2) use of force in self-defense; and (3) use of force in an otherwise lawful manner with the consent of the territorial State. With the U.N. unlikely to sanction such an attack, the authors consider what could legally justify a “Bloody Nose” response to the second and third circumstances.

 For self-defense to be warranted against an armed attack, it must have necessity, in that it is a last resort, and it must be reasonably proportional to counter the threat. Self-defense can be undertaken by a single nation to protect its territorial integrity, political independence, or nationals; self-defense can also be done collectively, as is the case with NATO. Surprisingly, the authors feel that aggressive acts such as a nuclear test, or even an unarmed missile landing within Japanese waters is enough to warrant a “bloody nose” response based in self-defense. The authors reason that unarmed missile test landing in another sovereign territory could be reasonably interpreted as a bombardment “capable of causing “injury to, or death of, persons” or “damage to, or destruction of, objects” and thus could be construed as a “weapon.” This “bombardment” would then reasonably trigger a Japanese right to self-defense, and thus an American right to self-defense against such aggression as well.

The international legal community’s response to this conclusion has not been receptive. Rebuttals point out that the authors made no attempt to explain how a nuclear test in a North Korea’s own sovereign territory constitutes an armed attack to warrant self-defense. Beyond that, a missile falling into the sea seems to fail the minimal customary standard of what is considered an armed attack, as no harm or destruction has resulted from it. Even if it were to be considered an attack, however, a strike by the United States on a facility in response to an unarmed projectile certainly escalates the situation beyond what proportionality and necessity would warrant.

A single missile falling into the sea, that leaves no destruction of property or life, is an act of aggression, not an armed attack, regardless of its “capability” to do harm. Confusing the two is a categorical error. While acts of aggression can be sanctioned by the security council, they do not inherently equate to an armed attack, and would not give a nation its right to exercise self-defense.

These categorical errors are compounded by the two authors’ misconstruction of some of the research used. Drafters of the definitions used by the authors to categorize a falling missile as a “bombardment” have come forward to “attest that no participant in the [cited work] suggested that an unarmed missile (or aircraft) could qualify as a weapon merely because it might incidentally strike someone or something, especially during a peacetime test.”

Regardless, if Lawless and Reeves’ logic is to be followed, this aforementioned “bombardment” of a missile would also trigger the United States’ right to collective self-defense.  This right arises from a 1960 security treaty, that Reeves and Lawless claim not only gives the right for the United States to engage in a “bloody nose” strike, but do so unilaterally without Japan’s affirmative consent. This option is also rebutted by the legal community. The universally recognized case, except by the United States,  The Republic of Nicaragua v. The United States of America (1986), confirms the exact opposite.  Stemming from the United States’ unsolicited aid to Nicaraguan rebels, the ruling states that affirmative consent is needed by the host nation, before a third-party nation can take action. Even without this ruling the United States would likely still not have a basis for collective defense based off the cited treaty. While the 1960 security treaty alone leaves open the ambiguous possibility of the United States undertaking a unilateral strike, a slew of subsequent treaties and policies make such an action not legally viable, nor policy-wise without Japan’s affirmative consent.

Finally, the two authors go on to say that regardless of a weapons test, or collective self-defense, the United States could arguably rely on its own right of self-defense. This arises from the fact that self-defense does not require an attack to actually occur. Anticipatory self-defense customarily allows a nation to respond in anticipation of an imminent attack if the circumstances are "instant, overwhelming, and leaving no choice of means, and no moment for deliberation."  In the wake of 9/11, however, both the Bush and Obama administrations greatly expanded our nation’s view of anticipatory self-defense, into the realm preemptive self-defense. This has been done by going beyond the customary understanding of imminence, and instead weighing a multitude of subjective factors, along with further saying that “the absence of specific evidence of where an attack will take place or of the precise nature of an attack does not preclude a conclusion that an armed attack is imminent.” This view of preemptive self-defense is  not considered customary or legal by the world at large.  Even by the United States’ own parameters of self-defense, current public intelligence likely leans to the notion that a strike against a North Korean facility would be a considered preventative in nature- an act considered illegal by the world at large. 

While the majority of international scholars feel such an attack is illegal, an interesting caveat to these arguments is the possible notion that we have been at war with North Korea for over 60 years. On July 27, 1953, an armistice was signed between the United Nations forces and North Korea, “ending” the Korean War. An armistice, however, is not the same as a peace treaty Based upon Hague Regulation 36, the term “armistice” translates into what today is considered a cease-fire. If the duration of said armistice/cease-fire is not detailed, then “the belligerent parties may resume operations at any time, provided that the enemy is warned...in accordance with the terms of the armistice.” It is arguable that hostilities have resumed between the parties multiple times since the armistice was signed. If hostilities have been technically ongoing, then the legality to a “blood nose attack” would become a moot point. The question of if the 1953 armistice is now a de facto peace treaty is a slippery one, but may provide firmer legal footing for such a “bloody nose” strike. Regardless, as Reeves and Lawless point out, a legal act is not the same as a wise one, especially when considering the right to self-defense is afforded to all nations- including North Korea and its allies.

The Catalan Independence Movement

What’s Happening in Catalonia?

Located in northeastern Spain, Catalonia (Capitol: Barcelona), is one of seventeen semi-autonomous regions in the European country. Moreover, the region has a diverse culture and distinctive language: Catalan. While the region speaks Spanish, you will both hear and see Catalan more than Spanish. 

The people of Catalonia are incredibly proud. They will almost always say they are Catalan, before they say they are Spanish. This stems partly from the fact that Catalonia never wanted to be part of Spain. The region lost its independence in 1714 and has since been granted vastly disparate levels of autonomy. The Spanish Civil War marked some of the worst times for the region. During the war, Catalonia, a secular region, leaned left and strongly resisted Franco and fascism. Spain’s Civil War ended in 1939 and Franco established his military dictatorship, which quickly outlawed the Catalan language and culture. Political killings were common and left many lasting scars on the relations between Catalonia and Madrid. When Franco died in 1975, Spain slowly transitioned to a constitutional democracy, and Catalonia was given more autonomy.

So, why vote for independence now? Well, this is not the first time Catalonia has held a vote. In 2014, there was an informal vote that revealed about 80% of Catalans supported independence. The increasing tension between Catalonia and Madrid stems from the 2008 recession that drastically impacted Spain’s economy. Catalonia is one of the most economically powerful regions of Spain and Catalans feel they pay a tremendous amount of taxes to subsidize other less affluent regions. This is partly true; Catalans paid 8 billion euros more than they received back in taxes in 2014. Although, as a caveat, Catalonia currently owes about 52 billion euros to Madrid.

A majority of Catalans wanted to vote on independence, however it’s unclear whether the majority of the region truly wants total independence from Spain. Nonetheless, the primary issue in Catalonia regards the Catalan leadership’s hasty approach to achieving political independence; especially considering the ramifications of a complete separation from Spain.  Simply put, a vote for secession will affect not only Spain, but the entire European continent. 

Carles Puigdemont, the leader of the Catalan government, was elected by a minority of the population. His coalition includes both conservative and far-left parties, whose only common interest appears to be secession from Spain. However, instead of taking a planned, deliberate approach to the political process, Puigdemont has acted rapidly, arguably to the point of recklessness, without any sort of negotiation with Madrid or even opposition parties within the Catalan parliament. The legislation to hold a referendum was ultimately forced through and the referendum was held on October 1. However, even before the vote, it seemed clear that Puigdemont would attempt to secede from Spain. Such action is in sharp contrast to the type of independence vote that took place in Scotland in 2014. 

With this sort of recklessness, it’s unsurprising that Madrid vehemently opposed Catalan independence. If the Prime Minister of Spain, Mariano Rajoy, had acted responsibly, and simply declared that Spain refused to recognize the vote, the situation might have defused. However, Rajoy called for referendum to be stopped by any means necessary, which ended violently.  The resulting photographs showed a government violently preventing its own citizens from peacefully voting. It is repugnant and sad to witness a democracy use such force, which injured at least 900 of its own citizens. Moreover, Rajoy did not back down as he began to receive criticism for the treatment of the Catalan people.

Puigdemont responded on Monday, October 2, that of the 42% of the total population who participated in the vote, 90% voted for independence. Puigdemont then announced he would declare independence from Spain in the coming days (even though a majority of Catalonia’s citizens have not voted for independence, although some have said they did not vote due to intimidation from both sides or simply wanted to boycott an illegal vote). The King of Spain, made a statement attempting to quell unrest, however many Catalans viewed the statement as an insult, as he never mentioned or made an apology for the violence, nor did he make any call for dialogue between Madrid and Catalonia. Many Catalans took to the street to protest Madrid’s reaction to the vote.

The consequences of the above-specified events remain unclear. After the Spanish Constitutional court suspended a meeting of the Catalan Parliament, Puidgemont still signed an independence declaration on Tuesday, October 10. The declaration, however was suspended. Puidgemont instead called for talks with Madrid before any official separation. If Puigdemont moves in the coming weeks for actual independence, Spain can constitutionally take direct control over Catalonia, which could be as extreme as martial law. 

If independence were to truly happen, it is unknown how an independent Catalonia would interact with the EU. Catalonia currently trades 2/3 of its goods with the EU. Moreover, outside of a flag, parliament, and a police force, Catalonia lacks any sort of state institutions, such as defense or taxation. 

For all the trouble this vote has created and will likely continue to create, it is important to note that this is all happening not because Madrid was acting as dictator over Catalonia, but because Catalonia simply wishes to no longer be part of Spain, much like Scotland and the United Kingdom. There’s nothing wrong with a region wishing to exercise self-determination, however this is an extreme method to accomplish that goal. Hopefully, Catalonia and Madrid can come to their senses and negotiate a real solution before they stubbornly throw their country into madness.

Author: Mary Macleod

"Mutual Assured Destruction:" Antiquated Doctrine or Viable Military Strategy?

"Mutual Assured Destruction:" Antiquated Doctrine or Viable Military Strategy?

Author: Elena Sakelaris

Mutual assured destruction (“MAD”) is a military strategy doctrine in which a full-scale use of nuclear weapons by two (or more) opposing sides would bring about the complete destruction of both the attacker and responder.  During the Cold War, the United States and Soviet Union relied upon the MAD doctrine.   MAD ultimately plays out as a standstill of sorts. Both sides are equally armed and capable of total destruction of the other—neither side has the incentive to initiate conflict nor disarm.  While there were times the United States and Soviet Union were on the brink of nuclear war, and at some points in the conflict tensions were much more escalated such as the Cuban Missile Crisis, it never reached the point of actual launch.  Rather than utilizing nuclear weapons for their destructive purpose, both sides used them for political leverage during the Cold War.  Nuclear weapons fundamentally changed the character of war; the question is no longer one of victory or loss, but rather survival or total annihilation. However, rational leaders in the United States and Soviet Union remained unwilling to bring about the total destruction of mankind.

It has now been almost 26 years since the official end of the Cold War in December of 1991; however we find ourselves yet again facing the potential risks of nuclear war. A nuclear strike by North Korea or the United States would constitute an act of war.  In response to recent threats against the United States and its allies from North Korea, President Trump stated in his speech at the UN that the United States would respond with force and “totally destroy” North Korea if necessary.  This extreme speech is not new, since the tensions have escalated between the United States, both leaders have respectively issued hyper-aggressive statements.  Since February of this year, North Korea has launched 11 missiles.  What concerns many people is the perceived—whether it is true or not is not the subject of this post—instability of both men. Individuals who tend to be more rash will generally respond faster and more aggressively than others might have. The appropriate response to the threats from North Korea is also not the topic of discussion here. I would argue a response is necessary because Kim Jong Un has become emboldened and the threats against the United States and its allies cannot be ignored.

However the point of interest here is that this is a conflict between two nuclear-armed nations. Unlike the Cold War, the degree of nuclear capabilities is not remotely close. The United States has a nuclear arsenal incomparable to that of North Korea’s arsenal.  This raises the question of whether is this truly a MAD situation?  However, the strength of the arsenal compared to North Korea’s does not diminish the devastation a nuclear attack against the United States would have. The ability to respond ten, twenty, fifty times stronger does not mean there will be no suffering in the United States or among our allies.

Accordingly, the question remains whether MAD is simply an antiquated principle or can still be effective in preventing nuclear war?  In order for MAD’s deterrence to be effective, a nation’s abilities and powers must be believable. Deterrence is only effective if other hostile nations do not doubt one’s willingness to use nuclear weapons if necessary. Nixon’s Foreign Policy Advisor Kissinger presented to Nixon the “madman” theory which essentially argued that the President could not be totally predictable: “If everyone knew that the president would never initiate a nuclear war, then there was no need to take his nuclear posturing seriously.”[1]  President Ronald Reagan famously said before a radio address in 1984, “My fellow Americans, I am pleased to tell you today that I’ve signed legislation that will outlaw Russia forever. We begin bombing in five minutes.”  While this was a joke, Reagan was well aware of what he was doing and what he was saying.  Some have suggested that this is what President Trump is imitating now and his boisterous speech is a rhetorical tool embracing Kissinger’s theory.

MAD is an effective deterrent if both countries are rational and are not truly seeking self-destruction. While Kim Jong Un may not be seeking self-destruction, it is unclear whether he is fully against it.  This increases the element of fear and instability, North Korea could be utilizing nuclear weapons to bolster its position internationally or it could truly be seeking their use. On balance, it is not clear if President Trump is attempting the “madman” theory or if he is going beyond the use of nuclear weapons as a bargaining tool as well. MAD will remain a relevant military strategy so long as neither side is suicidal.

 

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[1] Suri, Jeremi, “Nuclear Weapons and the Escalation of Global Conflict since 1945”;

Canadian International Council 63, no. 4 (2008): 13.