17 Jan New Article About the (Il)Legality of a Bloody Nose Strike Against North Korea
I have posted a draft of the article, which is forthcoming in International Law Studies, the great journal published by the US Naval War College, on SSRN. Here is the abstract:
In early 2018, media began to report that the United States was debating whether to “react to some nuclear or missile test with a targeted strike against a North Korean facility to bloody Pyongyang’s nose and illustrate the high price the regime could pay for its behaviour.” This article asks a simple question: would such a “bloody nose strike” (BNS) be consistent with international law’s rules on the use of force, the jus ad bellum?
Unfortunately, providing a coherent answer is complicated by the lack of clarity surrounding the U.S.’s planning. In particular, the government has not specified what kind of provocation it would consider sufficient to justify launching a BNS, has not identified precisely what a BNS would entail, and has not offered a legal theory for why a BNS would be permissible under international law. To some extent, therefore, this article is inherently speculative.
Because so much is unknown, the following legal analysis proceeds on two assumptions. The first is that the U.S. would attempt to justify a BNS either as the collective self-defense of Japan, its ally most directly threatened by North Korea’s nuclear and missile tests, or on the basis of its own individual right of self-defense. The second is that a BNS would be a response to one of two North Korean provocations that have taken place over the past couple of years: a test of a nuclear weapons on North Korean territory, or the intentional launch of an unarmed ballistic missile into Japan’s territorial waters.
The article itself is divided into three sections. Section 2 asks whether either North Korean provocation would qualify as an “armed attack,” the necessary precondition of individual or collective self-defense. Section 3 analyzes what would be required for the U.S. to justify a BNS as the collective self-defense of Japan. And Section 4 discusses whether the U.S. could justify a BNS as its own individual self-defense.
The article is based on a presentation I gave last February at a conference on North Korea and international law at the Naval War College. If you ever get a chance to participate in an event there, go — they organize wonderful events.
You can download the article here. As always, comments and criticisms welcome!