Could the murder of Kim Jong-nam land North Korea back on a US terror list?

The United States is reportedly mulling placing the North back on this terror list. But some observers say the law isn't clear about whether an assassination constitutes an act of terrorism. 

First Look

The United States is mulling whether to place North Korea back on a list of nations that support terrorism, following the suspected assassination of the half-brother of the North’s leader, Kim Jong-un, in a Malaysian airport last month, according to South Korean and Japanese media.

North Korea responded to the news reports in kind, saying on Saturday that the US will “pay dearly” if it places it back on a terror list alongside Syria, Iran, and Sudan.

“The US will keenly realize how dearly it has to pay for its groundless accusations against the dignified” North if it puts it back on the terror list, the regime’s foreign ministry spokesman told state-run newswire KCNA, according to Agence France-Presse.

The US has gone back and forth over whether it should keep the hermit kingdom on this list after it first designated it as a state sponsor of terrorism in 1987 for the bombing of a Korean Air flight. The George W. Bush administration removed the North from this list in 2008 as a carrot to induce the country to open its nuclear program to international scrutiny. The Obama administration, while at times entertaining calls from Capitol Hill to place the North back on this list, held true to its policy of “strategic patience.” And while President Trump has vowed to adopt a tough stance on Mr. Kim, placing the North back on this list for an assassination might prove quite difficult.  

While the nerve agent Malaysian police suspect killed Mr. Kim’s half-brother is so deadly it is listed as a weapon of mass destruction, the executive branch and Congress have often disagreed on what constitutes state-sponsored international terrorism.

Daniel Benjamin, who served as the US State Department’s counterterrorism coordinator under the Obama administration, says the murder lies in a “gray zone.”

While the suspected use of the deadly VX nerve agent is within the legal parameters of designating the North as a terrorist state, Mr. Benjamin told Voices of America, assassination by itself cannot be interpreted as an act of terrorism.  

"So this is a very unusual case," said Benjamin, now director of the Dickey Center for International Understanding at Dartmouth College.

Malaysian police suspect two women, using a cloth, smeared the nerve agent on the face of Kim Jong-nam in the Kuala Lumpur International Airport on Feb. 13. Malaysian authorities say swabs of Kim Jong-nam’s face during an autopsy revealed traces of the nerve agent.

South Korean and Japanese media, citing diplomatic sources, reported that the Trump administration is considering placing North Korea back on the terror list for the suspected assassins’ alleged use of the nerve agent, classified as a weapon of mass destruction under the 1993 Chemical Weapons Convention.

North Korea didn’t react kindly to these reports. In addition to threatening the United States with a response, the regime’s foreign ministry spokesman maintained that Pyongyang opposes “all forms of terrorism” and accused the US of trying to tarnish its reputation, according to Agence France-Presse.

South Korea has said its northern neighbor committed the murder, citing what it has called a standing order from Kim Jong-un to kill his exiled half-brother who may have been seen a potential rival.

The reports about the terror designation come after a Texas congressman introduced a bill last month that would put North Korea back on the list. In the bill, Texas Rep. Ted Poe (R) listed about 20 acts of terrorism allegedly perpetrated by the North, including hacking attacks, cyberattacks, abductions, assassination attempts, arms trade, and nuclear and missile threats, according to Lee Min-yong, a professor at Sookmyung Women's University in Seoul, South Korea.

If North Korea were to be placed back on the list, it would be subject to US financial sanctions, which include restrictions on US foreign assistance, a ban on arms-related exports and sales, and controls on exports of dual-use items, according to Voice of America, a US-government funded news outlet.

North Korea first found itself slapped with these sanctions after the bombing of a Korean Air flight near Myanmar in 1987, killing 115 people onboard. The bombing was seen as a response to Seoul being awarded the 1988 Olympic Summer Games. But the George W. Bush administration removed this designation in 2008 in an effort to encourage the North to open its nuclear program to international investigators. The Obama administration then considered, but ultimately turned down calls to re-designate North Korea for such suspected acts of terrorism as the hacking of Sony Pictures in 2014 and the sinking of a South Korean warship in 2010.  

While Mr. Trump has vowed to take a tough stance on North Korea, he offered a restrained sort of support for Tokyo when he and Japanese Prime Minister Shinzo Abe learned the North tested an intercontinental ballistic missile last month.

While Florida Rep. Ted Yoho, chairman of the House Foreign Affairs Subcommittee on Asia and the Pacific, told Voice of America there is bipartisan consensus in Congress on returning the North to this list, the law isn’t clear, said Benjamin, the former official now academic.

"The law is written in such a way that I think that the administration has a certain amount of flexibility in determining whether or not a country qualifies as a state sponsor," he said.