Permanent Mission of Republic of Korea to the United Nations

Countering Terrorism:Initiating the Movementas an InternInternship Final Paper

Timothy Park 23rd November 2016

INTRODUCTION

Introduction: Legal Team and International TerrorismWorking as a Legal Intern of the Sixth Committee at the Permanent Mission of Republic

of Korea at the United Nations has the privilege of getting insight of all three pillars of the UN: human rights, peace and security, and development. Peace and security have been the major topic of interest for me long before and even after coming to the Korean Mission. In the duration of ten weeks, I developed strong interest of mine, which is also happens to be my greatest impression of the United Nations (UN): countering international terrorism. Combating violent extremist activities is no longer an interest of particular region nor religious group, and I have convinced myself so after working with the UN on behalf of Republic of Korea. The United Nations not only to mitigates the violent acts but also spreads the awareness globally. My extensive contribution to the UN as an intern could be summarized in three- the 2016 International Law Commission (ILC) election, universal jurisdiction, and the relations between the UN Security Council and International Court of Justice (ICJ). Hereby introducing my dedication, I explain how the work I did ties into addressing the question, “How to effectively counter the spreading trend of terrorism.”

My First Insight of International Terrorism: The Working Group on International Terrorism, 20th October 2016 at Trusteeship Council Chamber,

The ability of the United Nations to develop a comprehensive strategy has been constrained by the consistent disagreement of member states in agendas of anti-terrorism convention including definition of terrorism. The norms governing the use of force by non-state actors have not kept pace with equally among states, and addressing the definition of the term terrorism has become more of a question of political dilemma rather than a legal one. This prevents UN from exerting its moral authority as the largest international community and from sending an unequivocal message that terrorism is never an acceptable tactic. Lack of agreement on a clear and well-known definition undermines the normative and moral stance against terrorism, staining the reputation of the United Nations.

Legally, virtually all forms of terrorism are prohibited by at least one of the international counter-terrorism conventions, international customary law, the Geneva Conventions or the Rome statutes. The United Nations must achieve the same degree of normative strength concerning non-state use of force as it has concerning state use of force. Therefore, achieving a comprehensive convention on terrorism, including a clear definition, is a must-political imperative.

The search for an agreed definition usually stumbles on two issues. The first is the argument that any definition should include states’ use of armed forces against civilians. The second objection is that peoples under foreign occupation have a right to resist and a definition of terrorism should not override this right. The right to resistance is contested by some, but the

resistance is not the primary focus. The primary focus is that there is no factual ground on circumstances of occupation that justifies the targeting and killing of civilians.

Why I Became Interested in Countering Terrorism? Although United Nations achieve peace through cooperation and harmonious relations

among states, I believe that transparent divisive wall exist among states or allies of states within the organization. In that sense, United Nations is technically not well united as a group but characterizes itself as “united” clusters of political alliance. However, despite the inevitable nature of the international community, I believe that there are causes that enable the organization to become one and great again. In my opinion, the most serious cause that allows integration of United Nations is fighting against international terrorism.

Defining the term international terrorism has always been ongoing long-enduring process. Christian Walter clarifies that the elements of definition may be systematised following their objective or subjective character. He adds that terrorism requires an objective element (for example, a crime of certain scale) and a subjective scale (motivation or intention on the part of the perpetrators), which is why each state is prone to coming up with different definition of “international terrorism” (Walter, Defining Terrorism in National and International Law). Generally, there seems to be a development that broadens existing definitions of terrorism into a direction of including non-violent but nevertheless destructive action against public facilities. This development in modern definitions entails the dangers that jeopardizes legal forms of public protest- for instance, large scale demonstrations with violent excesses may be labelled as terrorism.

Adding onto Walter’s point, my opinion is that much work has to be done in the world of countering international terrorism, starting with adding clarity to the work of defining the term. Unfortunately, the spread of the ideology of violence is spreading fast at the rate, not quite parallel to the pace of counter-terrorism strategy.

2016 INTERNATIONAL LAW COMMISSION ELECTION

2016 International Law Commission ElectionInternational Law Commission (ILC) is a sub-organization established by the United

Nations General Assembly in 1948 for progressive development of international law and the work of codification (GA Resolution A/RES/174(II)). The commission has strong foundation on belief that “research and proposals put forward by various societies, institutions and individual writers, has a considerable effect on the development of international law” (International Law Commission, legal.un.org/ilc/). The organization elects 34 members, and in fact, the elected professionals will act as individual legal experts, not representative to a certain state, for a term of five years.

A former ILC member Ki-Gap Park, Professor of International Law at Korea University, expressed willingness to run for re-election, and the two legal interns Ho-Sung Ahn and myself

were responsible in assisting the re-election campaign, as were the rest of the staffs in the Sixth Committee. The Sixth Committee as a team had one objective: to acquire as many votes as possible and lead positive results in the 2016 election. Legal Counsellor Jai-Ho Yang, who was transferred to the permanent mission to the United Nations from Republic of Korea Ministry of Justice a year and a half ago, became in charge of the election campaign as an election officer. I followed his specific instructions in progressing with the campaign. In order to secure the necessary votes needed, Professor Park had to meet as many voters, who are election officers in each delegation. It was the primary responsibility of the interns to arrange the contacts whether it be email, phone call, or person.

Simple tasks involved creating Microsoft Excel Sheet of ILC Election Officer contact information, sending friendly regards to schedule bilateral meetings with our candidate, coordinating dinner reception event, where candidates can potentially earn more electoral votes through casual social interactions, and etc. At times, my responsibility extended to creating rough drafts of official election report that were eventually submitted to the capital, and contacting election officers or counsellors to collect documented written agreements regarding the election interactions.

What I Learned from ILC ElectionManaging election campaign required absolute accuracy as well as efficiency. Creating

and editing Excel sheet was a simple task, and yet the data information put into each cell had to be complete without error. One of the common mistakes in the manual labor was misspelling the names of diplomats. Making inputs of name, direct contact, email address, delegation, and position of election officer repetitively for each of nearly all 193 member states was very much a labor-intensive process indeed, and minor typological errors seemed forgivable, personally. However, it was International Law Commission that the errors were being made to, and every single act became part of diplomacy in the world of the United Nations. At technical level, it was a matter of mispronouncing or misspelling a person’s name, but doing so at diplomatic level meant disrespect and humiliation that led to the reputation of countries.

Proactive communication was another critical aspect of the election that I realized. Counsellor Yang had his hands full partially with the ILC election but also with other legal matters (maritime territory dispute and re-visit of San Francisco Treaty of 1951). Hence, it was the responsibility of the interns to share the burden and move towards the goal together as a team. Ironic as it may sound, having greater number of people for the task functioned as a double-edged sword. It was a great advantage to have more people to increase productivity; however, increase in the number also meant higher chance of miscommunication. The mistake I often made was communicating with one delegation and failing to pass the message to my colleague Ho-Sung Ahn or my supervisor Counsellor Yang. 2016 ILC election was a consecutive mix of multi-tasking, change of plans, and long-enduring workload, but nevertheless a single mistake could not be tolerated since ILC membership was at stake.

The most important lesson I learned from the 2016 ILC Election was in fact very simple and basic: reciprocal support agreement. Reciprocal support agreement (RSA) refers to the

written contract that collectively takes place between the party of two states, which agree to mutually support one another in the equivalent or separate election. Despite the significant input that the election officers and interns made for additional support, majority of votes (130 out of 136) for Professor Park came from the written agreement. The work of election officers and legal interns were no doubt crucial as they did indeed account for the successful re-election of Professor Park. However, the oral agreement of support that the staffs collaboratively arranged, no matter how strongly the invitees confirmed, were always subject to change without notice. and that is precisely why RSA plays even more critical role. Working with ILC election allowed me to see the overall picture of how the election works, and the election process, at least in international communities such as UN, are strongly driven by diplomatic ties or friendly relations rather than manual administrative effort.

How Could ILC Contribute to Countering TerrorismInternational Law Commission represents collective efforts of the most qualified legal

professionals who create legal infrastructure that appropriately practice international law. Although it may not be an executive branch of government nor law enforcement entity exerting direct influence on international law, the work of the ILC has consistently been important component of international law communities. Various draft codes and proposals prepared by the Institute of Droit International, the International Law Association, and the Harvard Research in International Law are some of the dedications organized by the ILC. These work have facilitated the work of various other social and economic questions of international concern (International Law Commission, Document A/AC/10.25).

Military or law enforcement officers work on site to fight terrorism on field; however, more importantly, the ILC frame the necessary legal infrastructure, which international counter-terrorism can act upon. Terrorism must be countered in appropriate measures, and such practice involve countless legal disputes (maritime boundaries, transnational military action, aerospace jurisdiction, and etc.). The work conveyed by 34 ILC members have great significance on international law, and I believe it is a crucial step in maintaining global peace by mitigating violent extremism.

WEEKLY PRESENTATION: UNIVERSAL JURISDICTION

Weekly Presentation: Universal JurisdictionUniversal jurisdiction is defined as “a legal principle allowing or requiring a state to bring

criminal proceedings in respect of certain crimes irrespective of the location of the crime and the nationality of the perpetrator or the victim (Randall, 1988).” In other words, it is a legal doctrine that permits domestic courts to try and punish the most heinous crimes regardless of where they occurred (AMICC, amicc.org). The concept of universal jurisdiction emerged most notably from Nuremberg Trial of 1945, in which International Military Tribunal enforced principles of right or wrong on Nazi Germany for “crimes against peace of the world (Jackson).” Over 200 German

defendants were tried for war crimes as a result. The key idea was that political authority for Germany had been transferred to the Allied which prosecuted on violations of international law and the laws of war. By exercising universal jurisdiction, the participating states address the global common interest, if not obligation, to punish perpetrators of serious crimes. States may be under pressure to pursue prosecutions due the presence of a perpetrator within the state and by the desire for a nation’s territory not to be a safe haven for criminals. In some circumstances, the court was limited to violations of the laws of war, and it did not have jurisdiction over crimes that took place before the outbreak of World War II on September 1st, 1939.

Supporters of universal jurisdiction argue that the principle resolves the issues in countries where it is impossible to prosecute crimes that perpetrators committed due to political or military pressures. The Rwandan Genocide of 1994 resulted mass slaughter of nearly 800,000 people by gangs of Hutu extremist soldiers, and yet justice was not brought upon the responsible government officials until International Criminal Court (ICC) intervened. International Criminal Tribunal for Rwanda (ICTR) was established in November 1994 by the UN Security Council Resolution 955 (TPIR), and the tribunal convicted 29 accused persons after finishing 50 trials by 2009. Similarly, International Criminal Tribunal for Former Yugoslavia (ICTY) was established to prosecute violent cases occurred during Yugoslav Wars, and several perpetrators were indicted, including former President of the Republic of Serbian Krajina Goran Hadžić (Al-jazeera, 2011). . What I learned from Researching Universal Jurisdiction

The First and the most important fact that I learned from universal jurisdiction is that principle is yet imperfect. The idea itself of extending jurisdiction of court to prosecute the most violent criminals is very admirable. The problem is that universal jurisdiction is not universal at current state. The proceedings of the court have effect only within the established jurisdiction, and the principle of universal jurisdiction applies only to those who ratified Rome Statute- the 124 states as of March 2016 (UN Treaty Database). The United Nations has 193 member states, and the reality is that the jurisdiction of international law, though the expansion so far is impressive, is simply not universal enough as judicial authority.

As learning about universal jurisdiction, I noticed that universal jurisdiction is also heavily criticized for becoming politically partial, primarily favoring western states over those in Africa. Court cases regarding massacres in Rwanda was submitted to International Criminal Court on the basis of the violent nature of the crimes, but the same should apply to the other states including the United States and the United Kingdom during Afghan or Iraq War. In many countries, policies that George W. Bush and Dick Cheney adopted to fight terrorism continue to ignite controversies- most notably the opening of the detainee center at Guantanamo Bay, Cuba, and the use of enhanced interrogation considered as torture. The heaviest criticism aimed at universal jurisdiction, as reflected in the case of the US, is that the principle clashes with sovereignty of the state.

In the case of Iraq, the ICC lacks jurisdiction for several reasons: first, Iraq is not a party to the Rome Statute that established the court, and second the UN Security Council did not

referred the situation to the ICC. On the other hand, action on Afghanistan, which is an ICC party, is more plausible, and the preliminary examination first made public in 2007 is ongoing (Jacobson). However, it is reported that whether the court will actually proceed to a formal case is uncertain.

Bush administration is constantly under allegations for the inhumane practice that took place during military operations in the Middle East, but none of the legal procedures that took place in genocides in Africa have been applied. The only pressure that the former American government is under is cancellation of his trip to Geneva, Switzerland, to address the United Israel Appeal in 2011. His reason for the action reportedly stemmed from concerns about protests, but evidences indicate that he is not exempt from possibility of being under custody as application of international law- just as Donald Rumsfeld was pulled out of conference in Germany in 2005 for similar allegations (MacAskill & Hirsch, 2011).

Universal Jurisdiction Can Extend the Scope of Counter-TerrorismThe terrorism is no longer rooted to specific religious beliefs nor local regional

foundations. Continuous military operations have indeed successfully eliminated the top priority list of terrorist leaders: Osama Bin Laden was ambushed by Navy Seal Six and the influence of Al-Qaida severely diminished as a result. The US has been taking aggressive action against Taliban in the Middle East; however the War on Terror, initiated by Bush administration in 2001 seems to be ending not anytime soon.

The biggest problem is that terrorism has learned to adapt to the resistance, evolving into a new form. The revenue streams of terrorists have been developing in complexity (hijacking, kidnapping for ransom, illicit drug trafficking, and etc.) that it is getting more and more difficult to track them. Though heavily centralized in the Middle East before, terrorist groups have expanded the scope of its stations globally, and the same trend applies to its target regions. Recently emerged terrorist organization ISIL is reported to expand its stations towards West Africa as well as South-East Asia, and the foreign terrorist fighters (FTF) who work for the group has not hesitated to launch attacks in Western Europe. As a result, the city of Paris, Orlando, Istanbul, and Dhakar have been under attack in the last six year, and severe casualties were taken in each state. Most notable is the use of social networking that groups as such utilize in organizing activities or recruiting members, and surprising number of young recruits have been introduced to the organization through such routes.

If the target is moving trans-national fashion, so should the measure to counter them. Domestic jurisdiction of court can no longer fight the exponentially growing trend of terrorism. A stronger and more absolute measure must take place to spread the awareness that violent acts putting aggression against states but also against children, women, and other vulnerable civilians must not be tolerated. Only if member states of UN can fully understand the potential of adopting universal jurisdiction, can the terrorist movement be constrained greater on legal grounds and eventually on sight.

WEEKLY PRESENTATION: SECURITY COUNCIL vs INTERNATIONAL COURT OF JUSTICE

The United Nations Security Council The United Nations Security Council (UNSC) is one of the six principal organs of the

United Nations that visions the maintenance of international peace and security. The council works towards achieving global security through peaceful measures but at the same time does not hesitate in authorizing force when necessary: establishment of special political unit (SPU), impose of international sanctions, and the authorization of military action through peacekeeping operations (PKO). Authorization of force indicate the only legal binding force allowed within the United Nations that make exception to the rule of sovereignty, and all 193 member states of UN have the obligation to comply to the resolutions passed by the Security Council, unless vetoed by the Council itself (explained in the next paragraph).

The Security Council consists of fifteen members. Russian Federation, the United Kingdom, France, Republic of China, and the United States serve as the body's five permanent members. They have the authority to veto any substantive Security Council resolution, including the admission of new member states or candidates for Secretary-General. The Council also has ten non-permanent members, who are elected on a regional basis to serve for two years. The body's presidency rotates monthly among its members. Critics of the council often describe it as an undemocratic international body, and argue it fails its principal task, mainly because of the veto power of the permanent members.

The International Court of JusticeOn the other hand, the International Court of Justice (ICJ) is the primary judicial branch

of the United Nations (UN). Founded in the Peace Palace in The Hague, Netherlands, the court settles disputes submitted by states in legal means and provides advisory opinions on legal questions submitted by duly authorized international branches and agencies of the UN. All 193 members of the UN are parties to the Court's statute in accordance with Article 93 of the Charter, and non-members may also become part of it following protocols of the Article 93(2). Unfortunately, as stated in previous paragraphs, being a party to the statute does not guarantee the Court jurisdiction over disputes involving the parties in regards to sovereignty issues.

Security Council vs International Court of Justice

Article 94 establishes the duty of all UN members to comply with decisions of the Court involving them. If parties do not comply, the issue may be taken before the Security Council for enforcement action. Such a method of enforcement became a controversy, because if the judgment is against one of the permanent five members of the Security Council or its allies, any resolution on enforcement would then be vetoed. For example, after the Nicaragua case, when Nicaragua brought the issue of the unlawful military intervention and invasion of the United States, therefore the noncompliance with the Court's decision, before the Security Council, the US vetoed the UNSC decision rightfully as a permanent member. Furthermore, if the Security

Council refuses to enforce a judgment against any other state, there is no method of forcing the state to comply, and such action for the Security Council is justified under Chapter VII of the United Nations Charter for the sake of international peace and security

The relationship between the International Court of Justice and the Security Council, and the separation of their powers, was considered by the Court in 1992 in the Lockerbie case. On December 21, 1988 Pan Am Flight 103 was blown up over Lockerbie, Scotland. The investigation led to two Libyan nationals as primary suspects, and the United States along with the United Kingdom demanded the surrender of the two based on the rights of diplomatic protection. Problem arose when Libyan government refuse to comply.

Regarding the conflict, the Court considered an application from Libya to protect its rights, which, it alleged, that were being threatened by the United Kingdom and United States through sanctions. The problem was that economic sanctions had been authorized by the Security Council, resulting in a potential conflict between the functions of the Security Council and the judicial authority of the Court. The Court decided, by eleven votes to five, that rights and therefore the requests claimed by Libya legitimate and declared the argument of Libya admissible eventually. A decision on the merits has not been given since the parties (United Kingdom, United States, and Libya) settled the case out of court in 2003.

What I Learned from Security Council vs International Court of JusticeBoth Security Council and International Court of Justice represent each of six principal

organs of the United Nations. The two cooperate in the work of maintaining international peace as well as security, but I acknowledge how the two can conflict as separate branches of power (judicial and executive). I learned that there is imbalance of power between the two branches, and the imbalance raises concern in the issue of equality.

Security Council, especially the permanent five members, have absolute authority of legal binding force as well as the right to veto resolutions. The system is designed to best respond to immediate concern to international peace indeed; however the overwhelming hands of the permanent five have occasionally put the power of the Council into the hands of certain states that look out for their own security. Veto power of the permanent five have historically used not necessarily to maintain peace but to protect themselves from the United Nations passing resolutions, which could potentially become risk.

In contrary, power of the International Court of Justice is not binding enough, despite being the heart of judicial system for not only the organization but also for the international communities. UN Charter clearly states the legal binding force of Security Council, while the same does not apply to ICJ- rather, its jurisdiction is limited to UN member states and is constantly fogged by sovereignty of states. I believe that the Court is the only exclusive organ that can surveillance the miscarriage of justice taking place within Security Council; however the it lacks the legal grounds to demonstrate so.

Article 1 of the UN Charter clearly iterates that all states within the United Nations are equal. Unfortunately, the structure of the organization and unequal distribution of power among UN demonstrate partiality among the branches as well as states. I acknowledged the need to re-

balance the authorities of the branches, especially Security Council and International Court of Justice, and improve the system as whole.

Well-Balanced Relations between United Nations Security Council and International Court of Justice Could be a New Threat to International Terrorism

International Court of Justice (ICJ) provided legal foundation, on which violent extremists can be prosecuted in justice, and the UN Security Council has the legally binding force that can put together all 193 member states against terrorist groups such as ISIL. The unfolding truth is that the relationship between the two principal organs of UN is very much symbiotic: existence of one benefits the other. International Court of Justice functions on behalf of law and the very principle of it.

The only problem with the work of ICJ is that it has major blindsides where terrorists can take shelter in: sovereignty of each state. Terrorists have no jurisdiction, and it is precisely the reason why Al-Qaida launched attack on US soil on September 11th, 2001. On the other hand, courts do, and International Court of Justice is no exception. While universal jurisdiction takes the long course of development, there needs to be a stronger and immediate measure to pressure against violent activities.

Security Council is surely condemned for the exclusive power privilege only to the five permanent-member states, but the advantage of the perspective is that all five states strongly condemn, as do the rest of the 188 members of the United Nations, the actions taken by ISIL, Taliban, Al-Qaida, and etc. The resolutions proposed in Security Council are quickly passed, and more importantly they put the member states under compliance to the resolutions, setting forth the best jurisdiction for countering terrorism.

CONCLUDING REMARKS

ConclusionThe idea of working with the Sixth Committee, Legal Team, was so broad that I was

intimidated by the extensive work of the organization at first. But time was very generous to me, and as I steadily comprehended the nature of work better, I was able to narrow down to one topic of interest that striked me: combating terrorism at level of international law.

As previously mentioned, law does not act as an absolute solutions to the problem of terrorism that I address hereby in the essay. Universal jurisdiction has been continuously criticized for the inconsistency of punishing serious crimes of some but not all. African member states expressed resentment towards the imbalance of prosecutions of war crimes that aggressively embarked on individuals in the region but not the ones in the Western region. African Union have taken stance against adopting universal jurisdiction along with other legal measures as a form of protest against such bias.

As is the case with universal jurisdiction, not all agree with the principles of law. However, without law, there is no order in the system. Some may disagree but law stands in the

side of justice, for the innocent individuals who are perpetrated by groups of violent extremists, and I have faith that international law is the hope of countering terrorism that has been growing internationally.

Though not an immediate action strategy for countering terrorism, activities of International Law Commission can provide legal backbones to fight violent terrorist acts with the help of most qualified experts on international law. Universal jurisdiction, if properly applied and expanded, could provide a network of legal system where serious crimes can be prosecuted anywhere without being limited by jurisdiction issues. Lastly, there has to be a well-balanced scope of power exchanged between the United Nations Security Council and the International Court of Justice in order to prosecute the perpetrators of violent actions and put the states under compliance to resolutions.

WORK CITED

American Non-Governmental Organizations Coalition for the International Criminal Court, “US Case Law Citing to the Rome Statute”, Program of Columbia University Institute for

the Study of Human Rights, 2016

Explainer: Yugoslavia War Crimes Tribunal, “International Criminal Tribunal for the Former Yugoslavia was the First Body Created to Prosecute War Crimes Since 1945”, Al Jazirra,

English, 20 July, 2011.

Kenneth C. Randall, 'Universal jurisdiction under international law', Texas Law Review, No. 66 (1988), pp. 785-8: International Law Association Committee on International Human Rights Law and Practice, 'Final Report

International Law Commission, “Note on the Private Codification of Public International Law”, Document A/AC.10.25

Jacobson, Louis. “Are George W. Bush, Dick Cheney unable to visit Europe due to threat of arrest?” Politifact: Winner of Pulitzer Prize, July 17th 2014

MacAskill, Ewen. Hirsch, Afua. “Bush Calls off Trip to Switzerland” The Guardian, Human Rights, 2016 Guardian News and Media Limited, February 6 2011

The United Nations General Assembly, Resolutions Adopted by the General Assembly During Its Second Session, Agenda Item 174(II)

Tribunal pénal international pour le Rwanda (TPIR)"International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994", French.

“United Nations Treaty Database Entry Regarding the Rome Statute of the International Criminal Court”, United Nations Treaty Collection, 10 March 2010.

Walter, Christian, ‘Defining Terrorism in National and International Law’, Terrorism as a Challenge for National and International Law: Security versus Liberty?, Berlin / Heidelberg (Springer 2003)