JURIST Guest Columnist James P. Rudolph discusses the consequences of waiting for North Korea to use its nuclear weapons …

North Korea’s ambition to acquire nuclear weapons is a threat not only to Asia but to the United States as well. Kim Jong-Un, the despotic and unstable leader of North Korea, appears hell-bent on testing, developing and ultimately using nuclear weapons against his neighbors, including our allies Japan and South Korea. In addition, the North Korean leader has threatened to use his weapons against the United States itself. In other words, this appears to be a case in which a reliance on the law of self-defense, which was enshrined in the United Nations (UN) Charter, would pass legal muster. Nevertheless, as a fact-driven analysis, certain elements must be present before any kind of anticipatory or preemptive attack occurs.

So-called “strict constructionists” of self-defense argue that the law is clear: an attack must already have occurred for the right of self-defense to be triggered. In the case of Kim Jong-Un and North Korea, an attack has not occurred; thus, according to the strict constructionists, the United States would not be justified in relying on a theory of self-defense to attack Pyongyang’s missile installations. But these weapons are nuclear weapons, and their destructive power is almost incomprehensible. Is the right of self-defense, and the UN Charter, a “suicide pact,” as Abraham Lincoln once suggested of the Constitution during the Civil War? In other words, a strict interpretation of the law could lead us down the path to destruction. It is, therefore, too risky (and irrational) to wait for Kim Jong-Un to attack us or our allies.

Anticipatory self-defense requires that the attack be “imminent.” Daniel Webster, in the famous Caroline case, defined imminence as “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” With respect to North Korea, this threshold appears not to be met. In other words, unless things have changed radically in the last day or two, the United States appears to have enough time to deliberate, and we apparently are discussing the various means available to us to neutralize the threat. Thus, anticipatory self-defense doesn’t seem to apply. This leaves us with one more option: a preemptive strike.

According to the qualitative threat school, the legality of a preemptive strike depends on balancing three considerations: (1) the probability that an attack will occur; (2) the availability of non-forcible means; and (3) the magnitude of the harm.

Here, in the case of President Trump and his consideration of the use of force against North Korea, the probability of an attack against our allies or the United States itself is in doubt. Certainly classified assessments are being presented to President Trump and his military advisers that spell out in detail what the consensus is within the intelligence community regarding the notion of probability. Obviously, the greater the probability, the greater the chance that a preemptive strike would occur.

Second, the availability of non-forcible means is always to be considered – in all cases of the use of force. Can the United States effectively neutralize the threat of Pyongyang acquiring nuclear weapons by a reliance on diplomacy? Could sanctions and other measures short of war rein in North Korea’s leader? US presidents over the years have tried many such measures, and almost all of them have failed. The puerile potentate from Pyongyang hasn’t built an impregnable fortress; many of the sanctions that have been applied over the years have delivered an enduring sting. But these sanctions have not deterred Kim Jong-Un from pursuing his holy grail: a nuclearized weapon. In other words, this second consideration – non-forcible means – is not determinative.

The magnitude of the harm, then, is the dispositive detail when it comes to considering our military options for a preemptive strike. Having Kim Jong-Un as the head of state is itself something that has to be considered. He has demonstrated over the years his immaturity and impetuosity. Allowing this mercurial and manic man to have access to one of the most destructive weapons in the history of the world would, it goes without saying, be destabilizing to our Asian allies and to the United States. This observation doesn’t mean that we must, by necessity, take military action to “defang” Kim Jong-Un. But it does mean that the “magnitude of the harm” consideration appears at this point to trump all the other factors. Having a nuclear-armed North Korea is for the international community an unimaginable and understandably intolerable scenario.

These considerations, however, are not the only constraints on the use of force. The use of force pursuant to the right of self-defense is, by definition, still a use of force. Thus, it must also satisfy the requirements of necessity and proportionality. Necessity means that a state can use force for legitimate military objectives – e.g., securing the submission of the enemy. And proportionality means that a state must refrain from military action if the loss to civilians is excessive in relation to the military advantage. A surgical strike aimed at removing Pyongyang’s nuclear weapons likely would pass muster under international law. The doctrine of double effect – according to which a bad outcome (loss of civilian life) is justified if the act itself is good; a good intent (removing the threat of nuclear weapons) is present; and the good outweighs the bad – could also conceivably be invoked to justify loss of civilian life in North Korea.

But again, any decision regarding a preemptive strike based on self-defense must be predicated on what admittedly is an intensely fact-driven analysis. Our military leaders must be guided by the legal considerations listed here, but we as citizens must also understand that certain classified information to which we are not privy might be the determining factor on which this decision turns. As citizens living in a democratic system, this fact can be frustrating. But there is probably one fact around which consensus can be achieved: a nuclear-armed North Korea is something the world can and must not abide. Implementing this global consensus, however, is why we are between Scylla and Charybdis when it comes to our options, thus making a rock-ribbed reliance on principles is more important than ever.

James P. Rudolph is an attorney in California and Washington, D.C. He has worked for the US Agency for International Development as a democracy officer and the US State Department as a human rights officer.

Suggested citation: James P. Rudolph, North Korea’s nuclear desires, JURIST – Professional Commentary, May. 18, 2017, http://jurist.org/hotline/2017/05/James-Rudolph-north-korea-nukes.php