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.