Should the U.S. Bomb North Korea Before It Launches its Missile?

by Julian Ku

Apparently, the answer is yes, according to Professor Jeremi Suri of the University of Texas writing in the New York Times:

The Korean crisis has now become a strategic threat to America’s core national interests. The best option is to destroy the North Korean missile on the ground before it is launched. The United States should use a precise airstrike to render the missile and its mobile launcher inoperable.

President Obama should state clearly and forthrightly that this is an act of self-defense in response to explicit threats from North Korea and clear evidence of a prepared weapon. He should give the leaders of South Korea, Japan, China and Taiwan advance notice before acting. And he should explain that this is a limited defensive strike on a military target — an operation that poses no threat to civilians — and that America does not intend to bring about regime change. The purpose is to neutralize a clear and present danger. That is all.

I am highly dubious about this action as a policy matter, but I think that such a strike would be legal as a “preemptive” act of self-defense under international law.  Even for those wedded to the possibly outdated Caroline principle, I think the various statements by North Korea (including denouncing the armistice and making specific threats against South Korea and the United States) and its act of moving its missile into launch position would satisfy the Caroline’s imminence requirement.  I think a surgical strike that targeted only the missile would satisfy the proportionality requirement.

I am somewhat skeptical of Prof. Suri’s assurance that this will actually improve the security situation in Korea and Secretary Kerry seems to be going in the opposite direction.  But I do think he is right in putting this option on the table.   In any event, legal concerns should not constrain U.S. actions here.

http://opiniojuris.org/2013/04/15/should-the-u-s-bomb-north-korea-before-it-launches-its-missile/

19 Responses

  1. North Korea has officially declared an end to the cease fire agreement that interrupted the armed conflict fifty years ago. (Nobody took this seriously, but it is official.) The UN is still at war with North Korea, there was never a peace agreement, and once the Armistice agreement is terminated by them, an attack does not have to be justified as “preemptive” or in “self defense”. It is part of the ongoing state of war that they, not we, decided to resume.

  2. I recall there was much dispute about the legality of the invasion on Iraq, though Iraq violated the ceasefire agreement it signed with the UN Security Council.

    This in spite of the fact that UNSC resolution 1441 passed unanimously; the resolution stating that Iraq had failed to comply with the stack of resolutions requiring it to demonstrably divest itself of NBC weapons, stockpiles, delivery systems and development progams for either, and that it had one last chance to co-operate “immediately, unconditionally and actively” with Unmovic and IAEA or be confronted with “serious consequences.” 

    To my knowledge, there are no resolutions that contain similar “teeth” against the DPRK, nor would there be as China won’t allow it. To say that the DPRK is a clear and present danger to the US at this time is taking a pretty big license with the term. Dangerous compared to what? Are they more dangerous now than when they sank the last South Korean warship three years ago? More dangerous than when they fired a missile in 2006? How so? In 1992 there were nukes in South Korea facing the North, and more soldiers along the DMZ….seemed a more compelling threat then and they weren’t calling in military strikes on the DPRK. 

  3. I recall there was much dispute about the legality of the invasion on Iraq, though Iraq violated the ceasefire agreement it signed with the UN Security Council.
     
    Much of it inane at best.  Once the ceasefire was violated, the US required no further authorization (Really, it needed none before that, ceasefires are two-party consent agreements.) 
     
    I’d argue the same situation exists here.

  4. “In any event, legal concerns should not constrain U.S. actions here.”

    Sorry to be blunt, but you took off the professional international lawyer hat for this one? Speaking now as a patriot, “don’t tread on me” ‘n all that?

    There is no more requirement for formalities in the international law of armed conflict. A state of war is a practical, objective situation, and that situation does not exist between the US and DPRK, though it may arguably exist between the latter and ROK.

    As far the Bush doctrine of pre-emptive self-defence, it can’t be considered part of international law in any meaningful sense. More nations refuse it than accept it, and of these only the US is of relevance.

  5. Abramo: you are correct when noting that the majority of states and textwrtiers have rejected “preemptive” self-defense as well as the Bush doctrine regarding “emerging” threats (which are not even threats).  The U.S. today, however, might be more like the Brits in claiming a right to use force in “anticipatory” self-defense when there is an imminent armed attack. 
    Even then, it seems to be a minority preference and it is inconsistent with the language of Article 51 of the Charter (when an armed attack “occurs”).  However, it would be interesting to identify when a process of armed attack by North Korea is underway, esp. given its stated purposes and possible nuclear weaponization.
    Once such an attack is underway, given stated purposes, it would be proportionate to end their nuclear capabilities, to destroy much of their military infrastructure, and to destroy the elite who are bent on engaging in nuclear strikes against the United States and its militar.
    Others apparently do not understand that the Caroline incident did not involve claims to use anticipatory self-defense but only self-defense after a series of ongoing non-state actors armed attacks had already occurred and after the Caoline in particular had participated in aiding and abetting such prior to the attack by the Brits in the evening, when they could have waited until daylight and when the vessel entered Canadian waters. The misquoted language from Sec. Webster had to do with the method and means of responsive force against the vessel — not whether there could be anticipatory self-defense outside the circumstance of ongoing armed attacks.

  6. Jordan, I think there’s little actual difference between the two doctrines, and I would agree completely that neither is in line with the Charter.
    I think if a nation clearly stated “this here missile is directed at you” and then proceed to (prepare to) launch the missile, it would be legal grounds for self-defence. But that’s not what DPRK is doing, it never stated that that missile is an attack. Nor what it historically did. Its rhetoric is/has been indeed “we want your blood”, but they’re followed by weapons tests. I think the most logical and reasonable assumption is that this new Musudan placement is a test. And tests aren’t enough, not more than exercises are.

  7. “legal concerns should not constrain U.S. actions”
    Really? The rule of law isn’t important?

  8. If North Korea is behind the Boston bombings today, time for regime removal as a matter of U.S. self-defense.

  9. Abramo and Zach,

    I don’t want to speak for Julian, but I think it is fairly clear from the post that when he said “legal concerns should not constrain U.S. actions” he meant that the limitations imposed by international law are not an impediment because, in his view, the imminence requirement is met. 

    Roger Alford

  10. There are no surgical strikes. No eagerness to go down this grim path. 
    Best,
    Ben

  11. GA Resolution 2625, under the principle of non-use of force: “Every State likewise has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect.”

    Though the war may have been between the Koreas, this does not necessarily mean that the Armistice Agreement (see S/3079, available through UN ODS) only binds those States. Of course China also is a party to it, but more importantly General Clark, Commander-In-Chief of the United Nations Command committed the United Nations force to its terms.

    Adding to this, I doubt that a termination or abrogation of the Armistice Agreement changes the situation: article 2(4) of the Charter resumed full force after the cessation of hostilities and only self-defence against an armed attack would be lawful under the Charter and customary international law.

  12. Andre: it is more complicated because of the outstanding U.N. Security Council authorization for the use of force, which is a basis for the deployment of troops in the region under a U.N. flag.  Moreover, war technically exists and the armistice has ended at the hands of North Korea, and under the laws of war North Korean missiles and nuclear warheads can be targeted at any time.  The patience of the U.S. is remarkable.
    Roger: more generally under the law of self-defense there is no relevant “imminence requirement,” as noted above either with respect to claims to use anticipatory self-defense because it is not authorized under Article 51 or in terms of actual selection of targets for self-defense purposes when the right of self-defense has been tirggered when an armed attack is underway.

  13. Customary international law permits to prevent an imminent attack. The criteria for this right of anticipatory self-defense were enunciated in a statement issued by Secretary of State Webster on the Caroline incident as a necessity of self-defense instant, overwhelming, leaving no choice of means and no moment for deliberation. “Pre-emption” as a broader right to respond to threats which might materialize some time in the future has no basis in law. As Lawrence D. Freedman once observed, ‘the primary challenge of foreign policy is to find ways of restraining a United States that is forever seeking to solve complex international problems through the use of military force in placed and in forms that are wholly inappropriate’

  14. Concerning the Caroline incident and points above, see this draft footnote:
    See Paust, [19 J. Transnat’l L. & Pol’y 237 (2010)], at 242-43 & nn.11-12 (quoting two letters from Secretary of State Daniel Webster – the first to Lord Ashburton on August 6, 1842, and the second to Minister Henry S. Fox on April 24, 1841). Today, methods and means of self-defense are restricted by general principles of reasonable necessity and proportionality as well as any relevant prohibitions regarding particular weapons, tactics, and targets. There is no requirement that the “means” or “act” of self-defense actually used be strictly necessary. See, e.g., id. at 270-71, 274-75.

  15. I understand that SK may be threatened, but is NK capable of attacking the US, or would this be an attack by the US to prevent an attack on an ally, SK?

  16. Diane:  an attack on U.S. military personnel and/or vesels or aircraft in South Korea or in the region would be the equivalent of an attack on the U.S. re: U.N. Charter art. 51 (practice and opinio juris).

  17. Jordan, The Security Council did not initially authorize the use of force, but in resolution 83 recommended that members furnish assistance to the Republic of Korea to repel the armed attack of the Democratic People’s Republic of Korea (as clear a reference to collective self-defence as one could wish) and to restore international peace and security in the area. In resolution 84 it then recommended the creation of a unified command and authorized the forces concerned to fly the United Nations flag (and their own flags).

    Federico, Anticipatory self-defence is not embodied in article 51 of the Charter and one may seriously doubt whether State practice and opinio juris support it. Certainly the Webster formula enunciated in the 1830s is simply not relevant to customary international law as it exists today. Webster was writing at a time that States considered war to be an attribute of their sovereignty, whereas nowadays they accept a complete prohibition of the use of armed force in their international relations.
     

  18. Nobody accepts preemptive self-defense. Not even the United States. The U.S. does not treat it as a principle of universal application. No one thinks Iran, for example, can cite it to provide legal justification for an attack on the U.S., despite the fact the threats to Iran (and U.S. deployments in the Gulf) are much more severe than in the North Korean case.
     

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