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INTRNATIONAL LAW: LF-DFN
One Piece at a Time: The ‘Accumulation of vent’ Doctrine and the ‘lood
Noe’ Deate on North Korea
J. Francisco Loo Frida, March 16, 2018, 7:00 AM
Over the pat few week, expert have engaged in a deate over the legalit of puruing a “lood noe” trike on North Korea, an option
reportedl eing conidered the Trump adminitration (at leat until recentl). Thi deate ha een propelled forward an article
pulihed in Lawfare hane Reeve and Roert Lawle where the decrie the “lood noe” trike trateg a follow:
In effect, the propoal would allow for a timel and proportional repone againt North Korean ite in the event of another nuclear tet or
miile launch. For example, uch a trike might include uing force to target a North Korean miile ite or a militar ae. The hope would
e that uch a trike would “lood Pongang’ noe” and “illutrate the high price the regime could pa for it ehavior” without “igniting
an all-out-war on the Korean Peninula.”
everal cholar have ince authored formidale critical repone to Reeve’ and Lawle’ concluion that “[t]here i a trong argument
uch a trike would e lawful[,]” including Kevin Jon Heller, Michael chmitt and Ran Goodman, and Craig Martin.
Other reaction, though critical a well, have een more open to the poiilit of lawfull uing force againt North Korea. Among them are
Charlie Dunlap’ pot on hi log Law re and Maahiro Kuroaki’ recent pot on Lawfare. Concerned the 16 miile that North Korea
launched in 2017 alone, Dunlap remark that “context matter: A ingle, iolated launch of a miile that’ omehow known to e unarmed i
one thing, ut a pattern of launche from a rogue regime iuing repeated threat aout nuclear attack i omething quite different”
(emphai added). Kuroaki, meanwhile, emphaize the important role that intent pla for Japan in acertaining whether an armed attack
ha taken place: “an intent-aed armed attack determination i to e made aed on ‘a comprehenive aement of international affair,
the demontrated intent of the opponent tate, and the mean and pattern of attack’. Context thu doe matter to Japan in aeing
whether there ha een an armed attack” (emphai added).
What thee two latter piece have in common i their reliance on omething reemling the o-called “accumulation of event” doctrine,
alo known a the Nadeltichtaktik or ‘needle-prick’” theor. A decried Norman Feder in a rather ocure 1987 ea entitled “Reading
the U.N. Charter Connotativel: Toward a New De nition of Armed Attack,” thi doctrine wa originall invoked Irael to jutif it
militar incurion into Leanon during the 1970. At the time, Irael argued that, even though terrorit attack committed the Paletine
Lieration Organization did not individuall amount to armed attack under international law, the contituted an armed attack triggering a
right to individual elf-defene under Article 51 of the U.N. Charter when conidered altogether.
The accumulation of event doctrine reemle the categor of a “continuou offene,” i.e. “a reach of the criminal law not terminated a
ingle act or fact, ut which uit for a de nite period and i intended to cover or appl to ucceive imilar oligation or occurrence.”
Imagine omeone want to teal a whole et of che one piece at a time. Halfwa through—or even efore that—it i prett clear that the
unifing intent ehind the dicrete act of taking thi pawn or that ihop point to the nal goal of tealing the whole et. The appropriate
punihment mut take into account the ultimate ojective and not merel the utraction of each individual piece. A few ear ago, I
propoed thi analog of a continued crime to Norman Feder, ut he douted the convenience of including an element of men rea in the
elf-defene anali. Yet he conceded that, under the accumulation of event doctrine, the aggreive intent (or animu aggreioni) of the
attacker ma work a a unifing criterion for a erie of dicrete attack, not onl from the tandpoint of the attacker themelve ut alo for
the victim.
Notal, the accumulation of event doctrine wa not accepted the U.N. ecurit Council when it wa invoked Irael. choing ome of
the reaon for reiting thi approach, Chritian Tam ha argued that, although the accumulation of event doctrine could, in principle,
help to jutif the right of elf-defene againt the menace of poile armed attack non-tate actor, the international communit
hould not emrace it due to the rik that it would give tate more open-ended licene to ue force.
That aid, the accumulation of event doctrine ha more upport in oth theor and practice than Tam allow. Indeed, Goodman and
chmitt themelve eem to accept it in noting that “unle it could e reaonal concluded that uequent miile tet would e
conducted and that a forceful repone would e necear to top them, the armed attack would neither—e imminent, nor could the tet
e treated a one in a erie of action that contitute an on-going campaign that in it entiret contitute an armed attack” (emphai added).
Therefore, under their theor, if the fact were different enough to warrant the reaonale inference that the are connected—and thi i a
ig ‘if’—uch an ongoing campaign could theoreticall amount to an armed attack.
https://lawfareblog.com/one-piece-time-accumulation-events-doctrine-and-bloody-nose-debate-north-korea 1/2
Moreover, in practice, the accumulation of event doctrine ha een relied upon everal tate, a documented Tom Ru in hi
3/16/2018 One Piece at a Time: The ‘Accumulation of Events’ Doctrine and the ‘Bloody Nose’ Debate on North Korea - Lawfare
canonical monograph on the concept of an armed attack under the U.N. Charter. Ru explain that, according to thi doctrine, “incident
that would in themelve merel contitute ‘le grave ue of force’, can, when forming part of a chain of event, qualitativel tranform
into an ‘armed attack’ triggering the right of elf-defence” (p. 168). Though alwa mindful of the rik of diproportionate reaction, Ru
provide evidence (aleit not unequivocal according to him) that everal tate in addition to Irael have relied on thi doctrine in the pat,
including the United tate, Ruia, China, Leanon, Iran, Iraq, Lieria and udan. Further, Ru contend that the International Court of
Jutice itelf ha “implicitl” endored the doctrine in the Nicaragua, Oil Platform, and Democratic Repulic of the Congo v. Uganda cae.
Ru alo point out that the doctrine enjo coniderale upport among legal cholar, including uch prominent cholar a Ian rownlie,
Roaln Higgin and Yoram Dintein. More recentl, Ru ha alo referred to thi doctrine in relation to the recent aaination attempt of
a Ruian defector on ritih oil while recommending that it e “contrued narrowl.”
I elieve that the accumulation of event doctrine add appropriate complexit to an alread necearil complex deate. The deciion to
ue force or to engage in an armed con ict hould never e taken lightl an communit, and the international communit i no
exception. ut no communit can afford irreponile appeaement either. Thu, cholar and policmaker would e wie to pa heed to
thi additional dimenion of the argument, aleit with two caveat.
Firt, the accumulation of event doctrine onl make ene to determine if an armed attack ha alread taken place, even cumulativel
peaking, making an dicuion of preemptive or preventive elf-defene irrelevant. Indeed, once a erie of dicrete attack are deemed a
amounting overall to an armed attack, then the dicuion on whether or not we hould wait for an armed attack to occur efore we
preventivel trike i moot, ince the attack can e aid to alread have occured. Thi mean that the accumulation of event doctrine might
actuall take the deate a it further than the ‘lood noe’ dicuion ugget, ince the latter operate on the premie that an armed
attack ha not et taken place, ut i likel.
And econd, although Ru and Tam are right to e cautiou aout the rik of aue inherent in thi doctrine of accumulation of event, it
i necear to rememer that ever intitution can e aued, including the traditional right of elf-defene. ince it i premied on the ver
exitence of a conummated armed attack, the accumulation of event theor alo fall within the pectrum of the right of elf-defene, o if
it can e aued it i onl ecaue the traditional right of elf-defene can itelf e aued. In the meantime, the pirit of reponile
paci m enhrined in the U.N. Charter demand that we keep a cloe ee on the che et, let it diappear one da under our ver noe one
piece at a time.
Topics: International Law: elf-Defense
J. Francisco Loo is an international law and legal theor professor at the Diego Portales Universit in Chile as well as an
LL.M. student in the International Legal tudies program at the NYU chool of Law.
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