What is Seriously to be Done about North Korea’s Linear Progression Toward Nuclear Weapons Delivery Capability?!?!?!?!
Posted: April 26, 2016 Filed under: Nuclear 12 CommentsEvery few months we hear a new claim – and the inevitable follow-up discussions about the believability of that claim – regarding how far North Korea has come in developing a nuclear warhead that can be miniaturized and fitted onto one of their increasingly long-range missiles, and thus used to threaten its regional neighbors, or even the continental United States. The particulars of just where they are right now are less concerning to me than what appears to be a fairly linear progression of advancement in their capabilities, which again appears to make it only a matter of time – and here it seems realistic to talk of months or at the most a handful of years – before they achieve the ability to strike the U.S. with a nuclear tipped missile. And what’s really concerning is that TO THIS DAY I still haven’t heard anyone with a particularly good plan to stop this from happening.
There’s lots of talk of more sanctions, and of returning to negotiations. A good bit of talk about offering greater incentives. Of course all of these things have been tried before with North Korea and don’t seem to have made much of a difference in the trajectory of their progress toward a missile-deliverable nuclear weapon.
Then there’s the idea that at some point China will get tired of tolerating and protecting the increasingly defiant NK leadership and will do . . . something . . . about it. I wish that would happen, but there seems to be an awful lot of guessing and assumptions that go into that reliance, which don’t pat down the concern very much.
I come back to this subject at intervals here at ACL. Some previous posts are here, here, here, and here. I try to stay up to date on at least some of the leading writing on what to do about the North Korean threat. And it just baffles me that there isn’t a concrete plan for stopping the emergence of this capability by North Korea.
In my previous posts I’ve tried to head off any comparison between the North Korean case and the Iran case, on which I’m well known to have taken a different tack entirely. I don’t want to go back through the distinctions again here. If you’re serious, you know what they are.
And again, as I’ve also said before, I’ll put my general non-interventionist bona fides up against anyone’s and expect to come out favorably in the comparison. I am absolutely not some hawk that looks automatically to military force to solve WMD proliferation problems. Quite the opposite.
But sometimes there literally is no other practical option, and the threat is real and credible. And in those circumstances I’ve always been willing to afford states facing the imminent threat of use of nuclear weapons against them, the right to strike in an anticipatory fashion to defeat the threat. This is in my view within the right of self defense accorded to states under international law. Debates about what imminence means in this context are rich, sophisticated and nuanced. But at some point, I think states do have a right to preemptively use military force to degrade threats of use of nuclear weapons against them.
Like so much in international use of force law, practical legality will essentially depend on whether states generally are satisfied that a use of force was reasonable, necessary and proportionate to an intolerable threat, and that all reasonable peaceful means to avoid using military force had been exhausted. For example, Israeli threats to use military force against Iran’s nuclear facilities never met these tests of satisfaction. But I think that at some point, a preemptive military strike by the U.S. Against North Korea would.
Is the U.S. at that point yet with North Korea? I don’t think so. But when will we be? I’d give it months or at the most a handful of years.
I don’t know anyone in the right agencies of the U.S. government to check (not that they’d tell me even if I did) but I’m sure that plans for just such a military contingency are well maintained, they just aren’t spoken about publicly.
I suspect this is, in the end, the concrete plan for stopping North Korea’s nuclear threat to it’s neighbors and to the U.S. It’s just not part of what U.S. officials are ready to talk about yet. I sincerely hope it doesn’t come to this, and that something will change to make it unnecessary.
But if not, I’d rather see this than live with a North Korea capable of launching a nuclear first strike against the United States.
UPDATE: Here’s a link to an article I wrote in 2008 on use of force law in the context of WMD proliferation. I’ve referenced it a couple of times in the comments to this post, and I wanted to make it available to those interested:
Arms Control Law 
Wow
We have independently come to the same conclusion. These guys need to be stopped and not as punishment for some horrible act, but for unbearable attitude!
The question of “How to stop them” skips over what should be the first question: “Why are they doing this?” And while I am not at all an expert of Korean history, I would dismiss superficial explanations like “They’re all just crazy”. Nations/Govts act in perceived self-interest. If they’ve been in power for 40+ years, they can’t be irrational.
How can the US gain piece of mind regarding the DPRK’s budding nuclear arsenal? Here’s a seven point plan:
1. Withdraw all US nuclear forces from the region.
2. Withdraw all US forces from the Korean peninsula.
3. Stop trying to starve the people of the DPRK into submission.
4. Apologize for the massive war crimes committed by the US and it’s allies during the Korean War.
5. Pressure Japan for the crimes against humanity it committed during its occupation of the Korean peninsula. Including, nut not limited to the organized mass rape of Korean women which it readily admitd it orchestrated, but does not recognize as a crime .
6. Pay massive reparations to the DPRK. Pressure Japan to do the same.
7. Stop being a bunch of Dicks.
“…practical legality will essentially depend on whether states generally are satisfied that a use of force was reasonable, necessary and proportionate to an intolerable threat, and that all reasonable peaceful means to avoid using military force had been exhausted.”
It seems Dan is now trying to lower the legal standard for a preemptive strike (under Caroline’s) so that the US can wage a preventive war (Forgetting already what Bush II did against Iraq under a false pretext!). The respected law professor also ignores the fact that the drafters of the UN Charter did not even follow the Caroline’s standard by adopting Article 2(4) and Article 51. If US launches a preemptive strike against North Korea, then it will the US who will be in violation of the UN Charter and the international law.
Instead of preaching an emotional, reckless preventive war, in the guise of a preemptive war,
it would be much better if Dan calms down and read the UN Charter more carefully again.
After all, a good lawyer should try to uphold the international law, not undermine it.
There are also two other points we should pay attention too.
1) If US tries to attack N. Korea preemptively, isn’t N. Korea also justified in launching a
preemptive strike against US when it perceives the danger that US is going to attack it preemptively? (You see the danger of a preemptive strike?)
2) N. Korea has been proposing to US for a few years now that it would suspend its nuclear tests if the US would suspend its massive joint war drills with S. Korea against it (http://abcnews.go.com/US/wireStory/highlights-ap-interview-nkorean-foreign-minister-38640541). But the Obama administration has flatly rejected the offer.
So, Dan, under your criteria for a preemptive strike, who has “exhausted” “all reasonable peaceful means to avoid using military force”?
John, I am actually decently well acquainted with what the UN Charter says on international uses of force, as well as with the scholarly debates concerning the meaning of the Charter’s terms in light of both prior and subsequent state practice, and the role of customary law in changing or supplementing the Charter. See, e.g., my article from 2008: Jus ad Bellum in the Age of WMD Proliferation, 40 GEORGE WASHINGTON INTERNATIONAL LAW REVIEW 233 (2008).
The content of international use of force law is highly contested. It’s definitely not as simple as just looking at the words of the UN Charter. I wrote in the above mentioned article that the law regarding anticipatory uses of force against a WMD threat has not kept up well with modern requirements, and that the entire substantive area of use of force law doesn’t actually fit very well into the modern corpus of public international law. I still think this is true.
I think that the principles of use of force law are useful as norms, inasmuch as they are internalized by states, and inasmuch as pressure is applied to both powerful and non-powerful states to abide by them. But I don’t think that use of force law is best considered to actually comprise formal rules of law. Again, see the article for a more fulsome explanation. I don’t think states generally view them that way. That’s why I quite intentionally used the term “practical legality” in this post, because I think that the norms of use of force law can and do matter in their influence on state and civil society perceptions of the legality of a use of force after the fact, and that this ex post perception likely does play at least some role in states’ considerations of whether to use force ex ante. I wouldn’t exaggerate the role that these norms and perceptions of them play. But to the extent they do have practical influence, I think the formulation I used in the piece is correct.
The proverbial “court of world opinion” would, I think, judge that the criteria have been met to justify a US preemptive strike against North Korea. I do not think that it would judge the criteria to have been met to justify a North Korean preemptive strike against the US. In fact, I think you may be the only person outside of North Korea who thinks that.
“But I don’t think that use of force law is best considered to actually comprise formal rules of law.” Wow! You are the only person who ever said this! What are then the law school courses on “law of armed conflict” or “international humanitarian law”?
In any case, your criteria for a preemptive war does not even meet the Caroline’s elements.
In addition, Article 51 of the UN Charter allows a self-defense only “if an armed attack occurs against a Member of the UN.”
You may argue Article 51 is outdated, but the remedy should be for the US to amend the Article. I believe the reason the US is not trying to do so is because there are not that many Members who will support such an amendment.
Thanks to Article 51, we avoided a nuclear war between the US and Soviet Union.
If we follow the subjective criteria for a preemptive war as laid out by you, the world will become more dangerous and lawless. In fact, the former UN Sec.-General warned against any preemptive war doctrine in 9/2003: “This logic(preemptive strike) represents a fundamental challenge to the principles on which, however imperfectly, world peace and stability have rested for the last fifty-eight years. My concern is that, if it were to be adopted, it could set precedents that resulted in a proliferation of the unilateral and lawless use of force, with or without justification.” (Annan’s speech to GA).
Finally, I did not say whether the US or N. Korea is justified to launch a preemptive strike.
I think preemptive strike is illegal under the UN Charter, and whoever does it will be committing aggression under international law. If you continue to advocate for a preemptive war (or preventive war), you will be no better than Bush II who led this country to a costly, disastrous war, which not only undermined international law but also ended up creating such a chaos in the Middle East today.
Dear Dan,
I appreciate that you are sincere in your expressed sentiments regarding DPRK, but don’t you think that view point is particularly US centric?
I mean, outside of the US, Japan, and South Koerea no one wod consider DPRK a factor in their nation’s national security.
And I know that this must sound like a remedial question, but what exactly distinguishes the legality or advisability of a US anticipatory strike against DPRK from the legality or advisability of a DPRK stike against the US?
Actually, I think the best thing that could ever happen for the cause of nuclear disarmamanet and non proliferation efforts would be for the DPRK to produce thousands of nuclear tipped ICBMs, store them in hardened silos, aim them all at major US population centers and put them on a dead man’s switch. At this point, I think it’s just about the way to focud the NWS attention on these matters, rather than on how they can hijack international institutions to further their hegemonic interests.
So I went back and read your excahnge with John, and it seems you’ve already answered my question about why the ‘practical legality’ of a an attack only flows one way. And your answer dovetails into my second d question nicely.
You invoke the court of World Opinion, and state that you believe that the DPRK would be convicted before such a court and the US would be acquired. A couple of questions on this point:
1. How do we go from ‘believe’ and ‘would be’ to ‘has been’? What test would you propose to a policy maker to determine the ‘practical legality’ of an anticipatory war? Gallup poll? A Trumpian ‘Feel for the people’?
2. What exactly are the charges that the DPRK and the US stand respectively convicted and aquitted of? Crimes against humanity? The threat of the use of force? A bad haircut? Most Americans and Westerns are adamant about their belief that the diabolically evil nature of the DPRK compels it torture and starve it’s own people, but I don’t see the relevance of that belief to a judgement about an anticipatory war. I don’t think even Americans would disagree the US has made much more credible threats against the DPRK, than the DPRK has against the US. Maybe what you’re leaving unsaid is that there is some kind of hybrid R2P dynamic here?
3. You reference World Opinion, but I wonder if you don’t actually mean Western World Opinion. But assuming that you do actually believe that world is genuinely more worried about the DPRK than the US, wouldn’t ‘Western World Opinion’ actually be the more relevant fit? IUS politicians of all stripes have regularly panned the NAM wich represents the majority of the world’s people and nation states as a collection of despots, whose views should hold no legitimacy., and neither Russia nor China fare much better. If you really are advocating that policy makers abandon a formal approach to use of force law in favour of one concerned with ‘practical legalities’, why not skip right to the chase from the get go and admit to ourselves that the ‘Western World’ really is just about the maximal set of opinions US policy makers will acknowlede as relevant?
Hi Masoud,
I’ve gone ahead now and put an embedded link into the original post as an update. The link goes to my 2008 article on use of force law in the context of WMD proliferation. I wanted it to be easily accessible for those interested. In that article you’ll find my thoughts on a lot of these important questions.
Generally, I’m open to finding out that I have any analytical bias, whether that’s towards Western perceptions of threat or otherwise. I really don’t think that’s the case here, but again stand open to being convinced. I am genuinely concerned about the threat that North Korea poses to the US itself, where I live. I don’t think one has to have any particular bias to be concerned about a threat to where one lives, and to be strident in wanting to eliminate that threat.
I certainly recognize the philosophical and procedural difficulties that you raise, and there’s no easy answer for them. At the same time, surely we can agree that it is possible for a state to reasonably feel threatened by another state’s serious threat of attack with nuclear weapons. And that the state feeling threatened has got to, at some level, have the right to defend itself, and should not have to wait until the missiles are in the air to do something about it.
Facts here are of ultimate importance. And one situation will be very different from another. As I argue in my article, I don’t see any process or normative construction that really satisfies the various and competing genuine interests here – i.e. both of states and of an international legal order. And again, I genuinely think that states view use of force law as being in a different normative category than rules created in less-high-politics areas.
Maybe reading my article will help in better conveying where I’m coming from.
Hi Dan,
I live closer to major US population centers than any city in Alabama would be located. My liveliehood is also tied much more closely to the US being able to projection an air of military superiority than yours is. So I’m not a disintereted actor either. But I do find Kim Il Sung’s portrayal as a real life Dr. Evil quite hilarious, and I’m not losing any sleep over it. You don’t have to live in or close to a particular nation in order to worry about what may happen to it. But if you’ve more or less given yourself over to the sea of misinformation pumped out by the propaganda institutions of a would be planetary hegemon, you will sooner or later find yourself as part and parcel of that hegemonic system’s ideological machinery, no matter how innocent your original intentions.
Of the seven points in my original post, do you find any that are at all unreasonable? Do you find any that are more unreasonable than starting a war, let alone attempting to rewrite international use of force laws to something Dick Cheney would jearily approve of to start that war? Do you believe that if the US implemented that course of action there would be even a fraction of one percent chance that there wod be armed conflict between the DPRK and the US?
If I were to survey the specialists in international law of law faculties in countries like Brazil, or Uruguay, or the Philippines or Ghana, how many do you believe would think that giving the US greater latitude in launching an anticipatory war would result in positive outcomes for the current international legal order?
Your article does look quite interesting, and I’m going to take my time in reading it. But can you just give me a quick preview of how your proposed system would wind up working? Let’s take the US decisions on Iraq in 2003. Does Bush’s ‘Coalition Of The Willing’, in addition to all the memebers of ‘Old Eirope’ that wished the US every success in the days before the the air campaign against Iraq was launched in addition to the whipped uo hysteria about Saddam’s WMD programs pass your ‘World Opinion’ and ‘Domestic Opinion’ test?
I take a lot of your questions as rhetorical. But let me be clear about my own position. I’m not proposing a legal test, or criteria for lawfulness. What I’m saying is that, at the current point of the evolution of the international legal system, international uses of force are ungovernable by formal international law. I think that’s how states who use force internationally regard the issue as well. Having agreed norms and principles is a fine thing and may help to provide a normative nexus to which international civil society and state opinion can attach, and through which it can be expressed. But I think we should agree to deformalize the sources of use of force law. That’s the punchline of my article.
Hi Dan,
Thanks for taking the time that you did in answering in posting that reply. I know I just threw alot out on the table, and it was probably unreasonable to expect fully fleshed out answers to many of them. For the record though, I really thought soliciting answers from you on these points would shed more light on your position.
I don’t really disagree on alot of a what you say. I think we both agree that there just can’t exist anything that approaches a formalized legal system that would justify an anticipatory US attack on the DPRK, and that the lack of such legal grounding would not really stop states like the US from initiating conflicts.
We differ in that you seem to believe that we may as well be realists about all this and begin talking about the legitimacy of anticipatory wars in whatever terms the agressor states themselves choose consider them with, since the tests that they impose on themselves are functionally the only tests that must be passed.
I believe that such an approach would be akin to throwing out the baby that is the ability of third party observers of such conflicts to apply well understood and widely accepted tests and principles to determine the legality of a particular war, with the bathwater of the currently unenforceable nature of such tests and principles.
I’ve probably already let this run on too long, but let me end on a happy note: the DPRK has recently declared that it would only ever use it’s nuclear arsenal in self defense, and has offered to stop testing it’s nukes entirely if the USA stops rehearsing it’s plans to invade the DPRK. It really would be nice if the US could follow suit and adopt a symmetrical position vis a vis the DPRK, but i somehow doubt that is a likely outcome. Still, this is good news in and of itself.