The North Korean Nuclear TestPosted: February 21, 2013
Readers will remember that I wrote this piece on North Korea before their most recent nuclear explosive test. I’m hearing some talk that they might be prepping for yet another one soon.
I’m not a technical guy, but the fact that NK now seems to have both a plutonium and a uranium track working for producing nuclear weapons; their apparent success in increasing test yield while at the same time making progress in miniaturization; along with the ever increasing range of their missiles – all this is pretty freaking dangerous stuff.
As I said before, the North Koreans concern me a whole lot more that Iran, India, Pakistan, or Israel. And it’s because of what I perceive to be their just plain nuttiness. Irrationality driven by intense paranoid delusion; the completely autocratic nature of the government and its control over information to the North Korean people; and the government’s over-the-top aggressive rhetoric towards its neighbors and towards the U.S.
If the North Koreans didn’t have such an obviously developing nuclear weapons program, all of the above wouldn’t bother me so much. On the other hand, if they were developing a nuclear weapons program and weren’t so nutty that wouldn’t bother me so much either. But the combination of the two, and the thought that some day not too far away we may have to deal with a North Korea that really does have the capacity to shoot a nuclear armed ICBM at Japan, and then soon after at the continental U.S. – this seriously concerns me.
As I said in my previous piece, I know well all of the problems associated with any attempt to seriously do something about the North Korean threat. But we have got to come up with something better than just watching this happen.
As this is a blog devoted to arms control law, I suppose I should mention the international law applicable to North Korea right now. In terms of their possession and proliferation of nuclear weapons, the only law currently binding on them is the raft of U.N. Security Council resolutions commanding them to stop their nuclear weapons program and re-join the NPT. Then of course there’s Resolution 1540 on export controls and proliferation generally.
Unfortunately, in this case, one also has to consider the rules of international law on the use of nuclear weapons. This of course was the subject of the 1996 ICJ Advisory Opinion. Not that I expect the North Korean leadership cares, but that opinion, along with what I consider to be settled customary international law at this point, establishes clearly that any use by North Korea of nuclear weapons against any other country, under any reasonably foreseeable circumstances, would be illegal under international law.
The ICJ of course waffled on the question of whether a state could lawfully use nuclear weapons “in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.” Of course, extreme circumstances of self-defense would only go, if anywhere, to the jus ad bellum question of whether a use of force against another state would be lawful. It does not go to the jus in bello question of whether the use of nuclear weapons during an armed conflict would be lawful under international humanitarian law, and its restrictive principles of distinction and proportionality particularly. As Yoram Dinstein has written about this part of the ICJ’s holding “[This] sentence is the most troublesome. The linkage between the use of nuclear weapons and ‘extreme circumstances’ . . . is hard to digest: it appears to be utterly inconsistent with the basic tenet that [the law of armed conflict] applies equally to all belligerent States, irrespective of the merits of their cause . . .” (The Conduct of Hostilities, pg. 78)
Thus, any international use of nuclear weapons by North Korea, even if it was under full-out attack by the U.S. and South Korea and Japan, would be extremely difficult to justify under international humanitarian law. I’m sure that the imaginative out there might be able to come up with some hypothetical scenarios under which legality might be arguable – perhaps a tactical or low yield use targeting an isolated military object in South Korea, or in the Sea of Japan or East China Sea against a naval target. But fully complying with the distinction and proportionality principles relative to targeting in the modern law of armed conflict, as well as with international environmental law rules operative in armed conflict, would be extremely difficult – approaching impossibility.