LENS Essay Series: “The ‘Havana Syndrome’ and the Use of Force: Reality, Hypotheticals, and the Effect of Changing International Norms”

Today’s post introduces the latest addition to the LENS Essay Series, a fascinating article by a brilliant Duke Law 3L, Lindsay Kenney, entitled “The ‘Havana Syndrome’ and the Use of Force: Reality, Hypotheticals, and the Effect of Changing International Norms”.

The “Havana Syndrome” is one of the most mysterious and perplexing phenomena to emerge in recent years.  It got its name from the fact that the affliction was first suffered by American diplomats in Cuba.  It is described by a victim this way:

It starts with the noise. Harsh mechanical sounds like loud screeching. Then, an uncomfortable pressure, a loss of balance like being hit with a beam of energy….All of that can be followed by months — even years — of headaches, nausea, hearing and memory loss.

The number of victims seems to continue to grow.  Just last October the New York Times reported:

“More than 200 U.S. government officials — spies, diplomats, military troops and others — have been afflicted by the illness over the past five years in diplomatic missions in several countries, including Cuba. Reports of an outbreak in Hanoi, Vietnam, delayed Vice President Kamala Harris’s visit in August by a few hours.”

Although the U.S. government has yet to officially declare the cause or source of the syndrome, last fall Congress, in what the New York Times described as “a rare example of bipartisan agreement in fiercely partisan Washington,” passed special legislation to compensate the victims.

Act of war?

Still, there are many who believe the syndrome is a deliberately-inflicted neurological injury perpetuated by hostile forces. They insist it ought to be considered an “act of war.”

Although “act of war” is a politcal phrase, not a legal term, it essentially raises this question in international law question is this: would – or could – such a high-tech methodology be considered an unlawful use of “force” violating Article 2 (4) of the UN Charter?  Does it constitute an “armed attack” that could trigger the right to self-defense under Article 51?

Indeed, could it be a casus belli?  Keep in mind the expansive U.S. vew of the right to self-defense under the Charter:  In 2012 the then legal adviser to the U.S. State Department Harold Koh said:

[T]he United States has for a long time taken the position that the inherent right of self-defense potentially applies against any illegal use of force.  In our view, there is no threshold for a use of deadly force to qualify as an “armed attack” that may warrant a forcible response. 

Lindsay’s essay unpacks the issues for us, and uses the Havana Syndrome to suggest how we might think about sophisticated coercive methodologies emerging in the 21st century.  She contends that the “evolving legal norms in the use of force context will likely continue to stray away from a strict analysis under the narrow construction of Article 2(4).”

This is obviously cutting-edge scholarship, so be sure to read her full essay here.

Abstract

Here’s the abstract of Lindsay’s essay:

As the conflicts and wars known by the authors of the U.N. Charter disappear from the forefront of the modern battlefields, the analytical methods employed by the U.N. Charter have found themselves in new territory.  One of the most pressing and studied issues under the U.N. Charter in recent years has been the application of Article 2(4), the general prohibition on the use of force to modern day warfare.

This Paper explores that issue in the context of a radio frequency energy attack, aimed at American diplomats, stationed across the globe—a phenomenon known in the press as the “Havana Syndrome.” Though the Havana Syndrome only represents a hypothetical weapon at this point in time, it presents an interesting angle of analysis for a modern-day use of force application. This Paper borrows from Michael Schmitt’s analytical framework for use of force in the cyber context to provide insight as to how the suggested framework would operate in another legally ambiguous context.

This Paper concludes broadly that there has been a shift from a strict adherence to the application of Article 2(4), towards a consequence-based approach.  The evolving legal norms in the use of force context will likely continue to stray away from a strict analysis under the narrow construction of Article 2(4).  Thus, unless there is a concerted effort for a new framework—which seems unlikely—these next few years will be instrumental in defining a new, modern scope of Article 2(4).  

About the author:

Lindsay K. Kenney (J.D. 2022) is a 3L at Duke University School of Law, where she is Membership Editor of the Duke Law Journal.  She grew up in Nokesville, Virginia, and graduated in 2018 from the University of South Carolina – Columbia with a B.A. in International Studies and Global Studies.  During her 1L summer she interned at Weil, Gotshal & Manges in New York, and during her 2L summer she interned at Latham & Watkins LLP in Washington, D.C., where she will be returning after law school.