So let’s get right into this North Korea thing . . .
Posted: April 15, 2013 Filed under: Nuclear 26 CommentsWell, we all know that the rhetoric coming from North Korea has reached seemingly new heights of crazy aggressiveness over the past few weeks. This has included overt threats to preemptively attack the United States with nuclear weapons. Most analysts seem to see this as the new young leader Kim Jong-un trying to show his domestic audience, as well as to perhaps a lesser extent the international audience, that he’s a big strong man; which is kind of ironic since he bears a rather striking physical resemblance to the Stay Puft Marshmallow Man in Ghostbusters – a more apt comparison than it might first appear, given the movie plot.
Anyway, I know that a lot of analysts are saying that we’ve seen this kind of thing before, and it’s probably just bluster without any serious intention or desire to start a real physical fight with the US. I personally think, though, that the big difference between this time and previous times is that this time NK is considerably further down the technological line toward actually having a deliverable nuclear weapon with which to realistically threaten at least Japan and South Korea, if not the US itself.
I know that estimates of NK’s technological capability differ, and I can’t credibly comment on them. Though I did see this story about a rather embarrassing reveal of a DIA analysis. If it’s true that North Korea has achieved the capability to put a nuclear warhead on a missile, this is a game changer in my view. And even if they haven’t yet, the amount of time left before they acquire this capability seems to be shrinking quickly.
Julian Ku over at Opinio Juris asks the sort of obvious next question in this post: Should the US bomb North Korea before it launches its missile?
I’ve written about North Korea and how much it concerns me – much more than Iran – a number of times on this blog. I think the current situation is extremely worrisome and dangerous. It’s the kind of situation in which misjudgments could be made on either side that could lead to open military conflict. I think this is especially true with the callow Kim Jong Un in charge in NK.
I often criticize US officials when they say that Iran’s possession of a nuclear weapon is unacceptable. Of course, in the case of NK we are way beyond that point now. NK has nuclear weapons, we know that. And we know they have long range missiles capable, or nearly capable, of reaching the US. It is only a matter of time before they progress development of both, and put the two together to have a weapon capable of striking both Japan and the US. Also unlike the Iranian case, I have no confidence – zero – in the rationality and prudence of decisionmaking by NK officials. I think they are incredibly unpredictable, and are just genuinely nuts. This regime possessing nuclear weapons capable of striking Japan or the US is, in my opinion, absolutely unacceptable.
What do I mean by that? I’m still trying to think it through. I know what an ugly mess it would be to actually engage in military force against North Korea to forcibly disarm it of its nuclear weapons stockpile, and stop its development programs. I know the proximity of Seoul, and the presence of thousands of US troops around the DMZ. My uncle and his family live in Seoul. So it’s not something that I would want done unless absolutely necessary. I’m not a military planner, so I don’t know exactly how it would all work out. But I’m sure there are no good options for such a campaign.
But on the other hand, I do not want to live in a world in which North Korea has nuclear weapons deliverable at its psychotic whim against the US. Again, this isn’t Iraq 2003. This isn’t Iran 2013. This is a country that we know has nuclear weapons, and that we know is closing in on the capacity to deliver them against the US. And the rhetoric, whether to be believed 100% or not, is just not something I think we can ignore.
Where, then, is the “red line” here? Where is the point at which it will be necessary for the US and South Korea to take the extreme step of preemptively attacking North Korea? I don’t know, but I think it’s coming soon. And if/when it does, I think it will be both legal under international law, and morally justifiable. I agree with Julian Ku’s legal analysis generally, and while of course the principles of the jus in bello would have to additionally be met (most importantly proportionality and discrimination), I think North Korea presents the strongest case we have ever seen for the satisfaction of the Caroline criteria for anticipatory self-defense in the jus ad bellum. In this case I unfortunately see few other realistic options.
Arms Control Law 
If the NKs wanted to do a nuclear first strike, and ballistic missile technology was the only thing standing in the way, they could have delivered a device by boat by now.
BTW, NK is many years from being able to threaten the US with a ballistic missile mounted nuclear weapon. The payload requirements are about ~1000kg for even a miniaturized device. The RV technology is difficult and not tested by NK.
They may be able to threaten SK and Japan, but at the moment it is with conventional weapons.
The failure in dealing with NK lies squarely with the administration’s Asia hands — specifically the policy of “strategic patience”:
http://www.foreignpolicy.com/articles/2013/04/02/the_north_korea_deal_that_wasnt_yongbyon
Cornering the regime and economic war via sanctions is not the solution.
Its true that notwithstanding the DIA report, there does seem to be a pretty good consensus that NK is still quite a way away from having a missile-deliverable NW, and even further away from being able to deliver one on an ICBM.
http://www.nti.rsvp1.com/gsn/article/north-korea-still-far-working-icbm-experts-say/?mgh=http%3A%2F%2Fwww.nti.org&mgf=1
Nevertheless, the trajectory of their progress on the various aspects of accomplishing this seems to lead to them having this capability within not too many years. And I have a hard time seeing any peaceful disarmament effort succeeding before then.
Dan — agreed. But as the FP link above argues: we are stoking the problem. We have had many chances to alter their trajectory but have had not taken them, or chosen to make things worse. e.g. the latest sanctions on an already dirt poor nation. NK’s trajectory is not divorced from the larger context.
Other than NBC News saying DPRK said it, I can find no source for this allegation regarding a pre-emptive strike. DPRK has said a lot about retaliatory strikes.
There’s a lot of rhetoric from NK, but also a lot of spin in our media.
Reuters reported that the NK leader recently stated that their nuclear devices are for deterring war:
http://www.huffingtonpost.com/2013/04/01/kim-jong-un-north-korea-nuclear-weapons-speech_n_2996212.html
A lot of NK bluster is for domestic consumption and general anger at the economic war against them:
http://original.antiwar.com/justin/2013/04/02/explaining-north-korea/
BTW, FAS is doing a Q&A on North Korea — Part 1 is now online:
http://blogs.fas.org/security/2013/04/better-understanding-north-korea-part-1/
In Part 2 (maybe tomorrow) I’ll have some feedback on the technical details.
With SecState Kerry visiting China this past weekend, I trust that the U.S. has again dvised China of the sixty-year U.S. position, that just because China has long ago observed the 1953 Armistice Agreement by withdrawing its troops and by not conducting acts of armed force, the U.S. has no such obligation.
After all it was agreement between the United Nations on the one hand, and the PRC and the DPRK on the other, and so doesn’t apply to the United States. Isn’t that correct? It also required “peaceful settlement of the Korean question” but who needs peace, when war is more profitable. The oft-provoked “Korea threat” is such a treat for the MIC, along with the side benefit of US airbases one air-hour from Shanghai and Beijing. Never mind that the Koreans would rather have reconciliation of some kind, if not re-unification than perhaps some EU-type deal.
So let the war games begin. Cue the B-2 bombers, especially. The North Koreans have such fond memories of their cities and twenty percent of their population being destroyed by U.S. aerial bombing.
I’m fairly certain North Korean leader’s physical resemblances, age, etc. has very little to do with anything. NK seems to have calculated that raising the costs of threatening rhetoric/behavior by issuing threats of its own is a good idea.
Tad Daley of The Project on Abolishing War writes:
Quote:
During a press conference at the Pentagon on April 6th, 2010, announcing the Obama Administration’s “Nuclear Posture Review” (NPR), Secretary of Defense Robert Gates said that the new document now pledged that the United States would not launch nuclear attacks against non-nuclear states. Terrific! Except, then, he indicated that states “not in compliance with the NPT” had been placed in an entirely different category — and were not exempt from American nuclear attack. Then, to clear up any ambiguity whatsoever, he specifically named two and only two states as falling within this new class: North Korea and Iran. For these two countries, said Secretary Gates, “there is a message … if you’re going to play by the rules, if you’re going to join the international community, then we will undertake certain obligations to you … But if you’re not going to play by the rules, if you’re going to be a proliferator, then all options are on the table in terms of how we deal with you.”
End quote http://www.huffingtonpost.com/tad-daley/for-iran-its-time-to-take_b_3073238.html
And, indeed, the threat to hit US was issued. Here’s NK’s Ambassador quoting the Korean leader: http://www.guardian.co.uk/world/video/2013/apr/15/north-korean-ambassador-uk-speech-video
in case folk didn’t agree with b who thought China is far more ticked off with US than she is with NK, ( http://www.moonofalabama.org/2013/04/misreading-xi-on-north-korea.html ) then perhaps a more explicit repudiation of US policies from China was necessary, and here it is:
http://www.guardian.co.uk/world/2013/apr/16/china-attack-us-asia-pacific
Yes, the NPR carve-out for Iran and NK is counterproductive. “if you’re going to be a proliferator, then all options are on the table in terms of how we deal with you.” naturally leads to them wanting a nuclear capability if not an actual bomb.
Prof. Hellman at Stanford has a sensible take:
I have a a queasy feeling that the NPR, and Mr Gates’ disambiguation of the oft-repeated phrase “all options on the table” vis-a-vis North Korea, and Iran have been just as meticulously thought out, gamed out, and planned, as the invasion of Iraq was.
Self projection, and irony do not begin to rationalize the stated concern about proliferation, to wit: ‘it is dangerous because proliferators might threaten people with nukes.’
Re Prof. Hellman’s piece:
“That the US may become irrational and vindictive if its vital interests are attacked should be part of the national persona we project to all adversaries” to keep them on their toes.
This is self-evidently sensible, except for when:
a) Irrationality, vindictiveness, and disproportionality become a feature, not a bug, and
b) adversaries start to get a sense that our enmity is permanent, and actively being engrained in our cultural DNA.
I’ve read a lot of stuff, and that’s what it is, stuff. Complicated stuff, hard to reason through, whereas if one reduces it to the basics the solution is simple.
What’s the objective — is it peace and comity, or is it the extension of political and financial influence?
Pick one, and that simplifies matters.
If it’s the latter, the extension of power, then the question is what kind of military power should the U.S. employ, and when.
I’ve had a military career, army command and general staff college, I can do that military thing. Kill a bunch of people.
But for me, the default position for the U.S. in the world is that same as it is for me in my neighborhood. Get along with the neighbors! If one breaks the law, then we go legal.
What should be the default position for the U.S. on Iran and North Korea?
It should be an accommodation with them on peaceful terms. Why not?
To achieve that, the U.S. should be a good neighbor and observe the law.
But the U.S. hasn’t done that with Iran and North Korea, has it.
On North Korea (DPRK) I referred to the law – the Armistice Agreement – above.
Nobody will touch it; okay. That’s disappointing because it’s law.
Please consider it.
Moving on, I think lawyers can be good or bad. We need good lawyers. Really need them.
The OLC lawyers that have justified assassinations have been bad. That’s a fact. Bad.
We need good lawyers to nudge U.S. policy toward peace and comity in compliance with the law.
That’s what we need. And there are many who do it.
We need more.
So let’s get right into this North Korea thing . . .the right way. Back to basics.
Part II of the FAS Q&A on NK is up now:
http://blogs.fas.org/security/2013/04/better-understanding-north-korea-part-2/
Excellent testimony, really good, but cheez, yousaf, you’re saying that all those Aegis SM-3 BMD’s being fitted onto Navy ships are useless? After “The Commander, Operational Test and Evaluation Force, formally found Aegis BMD to be operationally effective and suitable?”
http://www.mda.mil/system/aegis_bmd.html
I’m looking forward to my next BMD comment on a mil-blog, in reference to China DF-21D ASBMs for example.
Peter Lee provided an excellent answer, to “What Drives US North Korea Policy? ”
http://www.truth-out.org/news/item/15796-what-drives-us-north-korea-policy
They say that Gaddafi, a US ally until Obama led from behind, died a horrible death.
Dan, are you advocating a “pre-emptive strike”, or are you really advocating a “preventive strike”?
They are not one and the same thing….
quote
That quote is actually contradicted by other statements Dan makes in his post.
Example 1: “It’s the kind of situation in which misjudgments could be made on either side that could lead to open military conflict.”
Dan is talking about UNCERTAINTY there i.e. he worries that there MIGHT be a conflict, and so he wants to deal with his anxiety by….. starting that conflict.
That’s not “pre-emption”, because the Caroline case requires CERTAINTY that an attack is coming, not UNCERTAINTY about what the future might bring.
Example 2: “I think they are incredibly unpredictable, and are just genuinely nuts. This regime possessing nuclear weapons capable of striking Japan or the US is, in my opinion, absolutely unacceptable.”
Again, Dan isn’t suggesting that he is CERTAIN that a North Korean attack is coming.
On the contrary, he is claiming that he finds it unacceptable that he has to live with the anxiety that comes with his UNCERTAINTY about what the North Koreans might do.
Again, that doesn’t rise to the level set in the Caroline case.
Example 3: “I know what an ugly mess it would be to actually engage in military force against North Korea to forcibly disarm it of its nuclear weapons stockpile, and stop its development programs.”
Again, Dan is not advocating an attack on North Korea because North Korea is juuuuuuust about to attack the USA (as required by the Caroline case).
No.
He is advocating an attack on North Korea to disarm it because that would lower his anxiety levels.
Example 4: “But on the other hand, I do not want to live in a world in which North Korea has nuclear weapons deliverable at its psychotic whim against the US.”
Again, I have to point this out: the Caroline case requires that you be CERTAIN that an attack is coming. It isn’t sufficient that you feel anxiety about your UNCERTAINTY regarding what the world in which you live.
To attack under the former is “pre-emptive”, to attack under the latter is “preventive”.
Dan does appear to be saying the former even as he is laying out his rationale for the latter.
No, the quote stands. Any uncertainty or unpredictability is exactly why he asks “where is the red line.” An exact description of an impending attack might be (should be) a part of that red line.
I think the best way to put the law as it currently stands is that a state may use force in self defense against another state prior to an actual armed attack by that target state, only if there is an imminent threat of armed attack by that target state, and the self-defending state has no realistic peaceful recourse. In legalese this is called anticipatory self-defense, and I am essentially paraphrasing the Caroline criteria here.
I wrote in my 2009 book at length about how I don’t think this rule of law is well suited to regulating state behavior in the modern context of counterproliferation-oriented preemptive self-defense. It is the lex lata (or current law) that we are stuck with at least for now, but in my opinion, states that argue it is an anachronistic and unrealistic rule in light of, particularly, modern threats of use of nuclear weapons, make persuasive points. The problem, as I described it in my book, is that its very difficult to come up with a better alternative rule formulation.
When I look at the NK situation, I certainly have this rule of law in my mind. Thats why I referenced the Caroline criteria in my post, and said that we are likely approaching a point at which the Caroline criteria are essentially met – i.e. an imminent threat of use of NW by NK, and no reasonable peaceful alternative. I don’t think we’re at that point yet, but I think we could get there in the not distant future.
What does imminence mean in this context? Well, the Caroline criteria state that the necessity of self defense has to be “instant, overwhelming, leaving no choice of means and no moment for deliberation.” Thats a pretty high standard. Honestly, its a pretty unrealistic standard, isnt it? Has customary law evolved on the question of imminence since the Caroline case? This is debated in the scholarly literature. If it has, it likely hasnt evolved much. The law still imposes a very high standard of imminence.
But what evidence do you have to have of that imminence? This is a question on which, to my knowledge, there really is no applicable legal source. No clarification in the law.
Things get very complicated, then, at this point if you are a lawyer in a foreign ministry and are being asked by your state’s political officials for advice on what is lawful. I’ve never been in this situation. If I were, though, I would probably say that if your state is in possession of intelligence that it finds compelling at a high degree of confidence, that the target state, on a preponderance of the available evidence (meaning more-likely-than-not), will itself engage in an armed attack against your state in the near future, and if no peaceful resolution is reasonably practical, then your state is legally justified in using proportional military force against the target state in self-defense.
Now, I know that there are all sorts of complications with this formula as I have enunciated it, and on points where the law is unclear I’ve just had to give my opinion, but this is the advice i would give under current law.
Johnboy made a good point about (and I’m paraphrasing) my expression of not wanting to live with a NW armed NK. He’s right to say that this concern, per se, is not a part of the directly applicable concerns in the law on anticipatory self-defense, and I concede that. But I think its a perfectly valid concern, and is the kind of concern that the law should take account of better than it currently does. This is what I meant when I said above that the current law on anticipatory self-defense is not well suited to regulating state behavior in the modern context of counterproliferation-oriented preemptive self-defense.
So here’s the question – if you are a state official, having to make a decision on what to do on an issue of the highest importance, possibly implicating the security of your country and the lives of your people, and the law in force is old and outdated and currently unrealistic, do you choose to act in accordance with the law against your better judgment of what is in the best interests of your country’s security? Or do you act at variance with the law and in harmony with your better judgment of what is in the best interests of your country’s security? I personally have alot of sympathy for state officials who would choose the latter option.
I’ve expressed similar thoughts before, and explained my rationale. See my comments to this earlier post:
Dan: “This is what I meant when I said above that the current law on anticipatory self-defense is not well suited to regulating state behavior in the modern context of counterproliferation-oriented preemptive self-defense.”
Well, I have to point out that this isn’t as “modern” a context as you might like to suggest.
Here’s one: the Kaiser’s “crazy” decision starting in the late 1800s to build a fleet of battleships whose sole purpose was to wrest control of the seas from the Royal Navy, which was as clear an “existential threat” to the British Empire as any you could possibly name.
Nobody in Britain would want to “live” in a world where the Kaiser’s North Sea Fleet could take down the British Grand Fleet, yet AFAIK nobody in Britain ever gave serious consideration to sending the Royal Navy into the North Sea to bombard Wilhelmshaven or Kiel in 1890’s or the 1900’s.
The British simply….. built more battleships (“deterrence” at its best), and when the German’s looked like catching up then the British promptly pulled the rug out from under the Kaiser by developing the “Dreadnought Battleship”, and then simply….. kept building bigger, better and stronger dreadnoughts.
That didn’t stop WW1, of course, but it did mean that the British didn’t START the First World War by launching a “preemptive attack” on the German shipbuilding industries.
There are later examples (e.g. the Washington Naval Treaty as the SALT treaty of its day, the Japanese decision to launch the Pearl Harbor attack) but, honestly, for all the terrible, terrible destructive force of nukes there is little that is new under the sun.
And history really does suggest that trying to prevent “proliferation” by bombing the bejeezus outta it is not very likely to work, which is why I can’t agree with your argument.
A weapon that’s being readied to be launched at you, and you know it?
Sure, you can take it out, but that’s true REGARDLESS of what the weapon is.
But a weapon that gives you the heebie-geebies because it is being aimed your way?
No, you can’t take that out; all you can do is train YOUR weapons on THEM.
That’s what the law says, and I happen to agree with what the law says.
The Caroline Test has no legal standing.
The United Nations was established primarily to eliminate this foolishness of using somebody’s specious judgment on “imminent threats.” Evidence: Iraq.
The UN Charter does rule:
# All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
# All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
Johnboy,
I think the analysis has to be case specific. I realize that alot of the arguments I’m making with regard to NK, sound like arguments I’ve criticized when it comes to Iran. The difference is that I’m much more convinced that NK:
(1) has NW and delivery means;
(2) has made threats of use of these weapons; and
(3) is essentially irrational and can’t be dealt with through peaceful diplomatic means
than I am about Iran’s fit with these criteria. In fact, I think NK fits every one of these criteria, and that Iran fits none of them. That’s why I think NK presents a threat that may soon cross the line into a threat that can legally be countered under the doctrine of anticipatory self-defense, whereas I don’t think Iran is anywhere close to that line.
Don, the question of whether anticipatory self-defense is part of the modern jus ad bellum is a subject that has been long and hotly debated in international legal scholarship. I personally take the view that it is, and my sense is that most states and most international legal scholars also accept this view.
a bit of good news:
The USS Stennis nuclear aircraft carrier had left the Fifth Fleet area (Gulf) and entered the Seventh Fleet area (western Pacific) and seemed to be heading north, but now for several days it is heading east and has entered the Third Fleet area (eastern Pacific) heading home after eight months’ deployment.
https://www.facebook.com/stennis74
Just a reminder that an elective military attack on another country for any reason is prohibited by the United Nations Charter which is the law of the land.
That includes attacks based on red lines imposed because we may not want to live with certain conditions in other lands.
To maintain international peace and security,
# All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
# All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
http://www.un.org/en/documents/charter/chapter1.shtml
What’s the big fuss? While the rhetoric is a little theatrical, the actual threats coming out of North Korea are essentially symmetric reflections of those they have received from the US over the past fifty years. You only need to consult your nearest Nuclear Posture Review. If these threats really are so apocalyptically dire, the US always has the option of pakcing up it’s forces from the region, and the Korean peninsula in particular, and going home.