Assessing the legal case for the use of force against North Korea: is “armistice law” a factor?

In the aftermath of yet another nuclear test by North Korea in defiance of the UN Security Council resolutions, U.S. National Security Advisor H.R. McMaster insisted that although “it’s not what we would prefer to do,” there “is a military option” to stop North Korea’s nuclearization. I agree with him, but for now let’s ask ourselves: does domestic and international law support the military option?  And could the unique legacy of the Korean War – the armistice – matter?

Scholars have expressed a number of opinions as to whether or not U.S. domestic law would authorize an attack, and a number has also opined concerning the separate question as to the legality of such action under international law.  (It’s quite possible that something can be legal under U.S. law but violate international law, and vice versa.)

Domestic Law

The best and most incisive of the analyses of domestic law is that authored by Harvard Law Professor Jack Goldsmith.  In a blog post, Jack addresses the “President’s power under Article II to order a military strike on North Korea in the absence of congressional authorization.”  In doing so, he examines a string of Office of Legal Counsel opinions that he finds “make plain that the Executive has been asserting more and more authority to use force unilaterally, including in self-defense, for many decades.”

In Jack’s opinion – which I share – we should not “expect the law or lawyers to provide avenues to constrain the President from using force in North Korea if the President deems it the appropriate course.”

International Law

So what about international law?  The best I’ve seen is one by a young National Security Intern at the Brookings Institution named Alexander J. Potcovaru.  His essay, “The International Law of Anticipatory Self-Defense and U.S. Options in North Korea,” carefully parses terms that have been all too loosely thrown around: anticipatory self-defense, preemptive self-defense, and preventive self-defense.

Potcovaru notes that on its face, Article 51 the self-defense provision of the UN Charter requires an “armed attack” to have occurred before a response involving force is permitted.  However, noting a number of historical examples, Potcovaru points out that the “less restrictive arguments hold that a state need not wait until an armed attack has occurred to launch a legitimate pre-attack strike.”  (Of course, as Professor Ashley Deeks tells, exactly how “imminent” the anticipated attack must be to justify a pre-attack strike is “[o]ne of the longest-running debates in international law.”)

Still, Potcovaru concludes:

The U.S. could make a substantial legal argument, based on international law and the precedent of some cases, for a pre-strike attack on North Korea.  But the variability of historical examples and the behavior of Security Council members make it unclear what degree of legitimacy the international community would afford the United States’ fateful decision.

In 2013, I examined the U.S. position on the development of a nuclear weapon by Iran and observed:

The United States (U.S.) has long asserted that it will not tolerate a nuclear-armed Iran. President Obama reiterated in October of 2012 his unequivocal declaration that “as long as [he is] president of the United States Iran will not get a nuclear weapon.”  Thus, preventing Iran from getting a nuclear weapon appears to be a nonnegotiable cornerstone of the President’s policy.

Nevertheless, I concluded that the effort to acquire nuclear weapons by an unfriendly state was insufficient in and of itself to justify the use of force to stop such a process.  I did then – and do now – believe that the unique destructiveness of nuclear weapons is such that nations need some leeway in their assessment of when such an attack may be imminent.

Of course, the facts do matter.  Among other things, recent threats and actions by North Korea have far outstripped those of Iran.  Moreover, there have been more provocations since Potcovaru wrote his article in early August.  Thus, the case against North Korea is much stronger than what I considered in 2013 with respect to Iran, particularly with respect to the “imminence” factor.

Obama Administration Use-of-Force Framework

In December of 2016 the Obama Administration issued its Report on the Legal and Policy Frameworks Guiding The United States’ Use of Military Force and Related National Security Operations and I think it bears on this discussion.  Below is an extract from it (because it is a little lengthy, I broke it into additional paragraphs).

Under the jus ad bellum, a State may use force in the exercise of its inherent right of self defense not only in response to armed attacks that have already occurred, but also in response to imminent attacks before they occur.  When considering whether an armed attack is imminent under the jus ad bellum for purposes of the initial use of force against another State or on its territory, the United States analyzes a variety of factors.

These factors include “the nature and immediacy of the threat; the probability of an attack; whether the anticipated attack is part of a concerted pattern of continuing armed activity; the likely scale of the attack and the injury, loss, or damage likely to result therefrom in the absence of mitigating action; and the likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss, or damage.”

Moreover, “the absence of specific evidence of where an attack will take place or of the precise nature of an attack does not preclude a conclusion that an armed attack is imminent for purposes of the exercise of the right of self-defense, provided that there is a reasonable and objective basis for concluding that an armed attack is imminent.”  Finally, as is now increasingly recognized by the international community, the traditional conception of what constitutes an “imminent” attack must be understood in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.  (Citations omitted).

I think it is quite possible that the facts with respect to North Korea could fit this legal framework, especially when one takes into account the “likely scale of the attack and the injury, loss, or damage likely to result” from nuclear weapons, and the quite possibly limited ‘window’ for there to be “opportunities to undertake effective action in self-defense.”

“Armistice Law”?

I would like to add a footnote to this dialogue about something neither Goldsmith nor Potcovaru discussed in their writings: the possible legal impact of the armistice agreement.  On July 27, 1953, an armistice agreement was signed “between the Commander-in-Chief, United Nations Command, on the one hand, and the Supreme Commander of the Korean People’s Army and the Commander of the Chinese People’s volunteers.”  There has never been a formal peace treaty.

The text of the agreement indicates it is premised on a “complete cessation of hostilities.”  Given the hostile acts in which North Korea has engaged (e.g., threats and missile firings), it would seem that the agreement has been broken.  Are we then still at war with North Korea?  Many might say “sort of,” So let’s take a look at the issues.

In 2009, lawyer Gordon G. Chang wrote an op-ed in the Wall Street Journal where he argued that North Korea’s repeated renunciations of the armistice means that as a legal matter, an armistice “cannot remain in existence after one of its parties, a sovereign state, announces its end.”  He added, “whether we like it or not, there is no armistice.”  Consequently, Chang says that since there is no peace treaty, “the U.S., a combatant in the conflict, as leader of the U.N. Command, is free to use force against Pyongyang.”

To be sure, not everyone agrees with Chang’s analysis.  Professor Dapo Akande wrote a thoughtful – albeit not completely persuasive – critique in EJIL: Talk!  Citing Chris Greenwood ‘s chapter in The Handbook of International Humanitarian Law (2^nd ed., 2008) (p. 68), Akande essentially argues that the UN Charter abrogates the traditional right of parties to an armistice to resume hostilities upon notice.

A more detailed analysis is found in a 2013 law review article by Seunghyun Sally Nam  In it she provides an excellent review of “armistice law” to include the conflicting arguments.  Her own assessment is that there is something of a middle ground between what might be called the “Chang” view and the “Akande” position (she doesn’t use those terms), and that is one she attributes to Georg Schwarzenberger and Phillip Jessup.  Nam says they “suggest the recognition of a “status mixtus,” or a state of intermediacy, between war and peace.”  In her view, the “Korean Peninsula is in a peacetime status mixtus.”  However, she concludes that:

“[A] peacetime status mixtus does not mean that the parties can exercise belligerent rights freely.  Belligerent rights should be recognized only when there are actual armed hostilities on the ground.  A party to the Korean Armistice should use force only as an act of self defense, in accordance with article 51 of the U.N. Charter.”

Unfortunately, because her study focuses on an actual armed attack involving the sinking of a South Korean warship allegedly by a North Korean submarine, she never really grappled with the issue of status mixtus in the context of anticipatory self-defense.

Interestingly, subsequent to Nam’s article, the International Criminal Court (ICC) examined the case of the sinking of the South Korean warship.  The ICC concluded in its “Report on Preliminary Examination Activities 2014” that, among other things, “the two countries are technically still at war; the Armistice Agreement of 1953 is merely a ceasefire agreement and the parties are yet to negotiate the peace agreement expected to formally conclude the 1950-53 conflict.”  For that and other reasons, the ICC concluded that the sinking of the South Korean warship was not a war crime.

The latest iteration of the U.S. Department of Defense Law of War Manual issued late in the Obama Administration (Dec 2016) says this:

12.11.1.2 Armistice as a Suspension of Hostilities and Not a Peace Treaty.  An armistice is not a partial or a temporary peace; it is only the suspension of military operations to the extent agreed upon by the parties to the conflict.  War as a legal state of hostilities between parties may continue, despite the conclusion of an armistice agreement.  In some cases, however, armistice agreements may be intended to be a prelude to peace treaties.  In some cases, armistice agreements may persist for a long time.  (Emphasis added; citations omitted).

The Manual cites various cases and other authorities in support.  Notably, the “may persist for a long time” language the Manual uses is footnoted by reference to the Korea armistice as an example.  From the DoD perspective anyway, it seems like the traditional, “Chang” view of armistices persists.

All of this suggests that the armistice law arguably recognizes the legal existence of the continued state of war.  In light of provocative acts by North Korea, the suspension of hostilities could be found to have ended it and that might mean that, as a matter of international law, the conflict is resumed.   During armed conflict attacks otherwise complying with jus in bello are permitted, and they certainly could include attacks on North Korean military targets, including nuclear weapons facilities and similar capabilities.

In other words, apart from an analysis of what may justify anticipatory self-defense, there might be a separate (and perhaps less-demanding) rationale based on the breaching the existing armistice, or the unilaterally (or even bilaterally) withdrawal of parties from it, either of which operates to end the ceasefire.  With respect to the Korean War, it is a conflict which, vis-à-vis the U.S.’s participation, can trace its authority under international law to never-withdrawn UN Security Council resolutions.  (Let’s not forget than UN Security Council resolutions from 1990 were relied upon to justify the Iraq invasion of 2003).

How about the domestic law authority?  If the armistice (or lack of one) has any impact, it would seem to support Goldsmith’s view.  While several scholars have vigorously disputed President Harry Truman’s constitutional authority to wage the “police action” in Korea from 1950 to 1953 that cost the lives of over 36,000 Americans, the better view is that it was a lawful exercise of presidential power.

Duke’s own Curt Bradley co-authored a 2005 Harvard Law review article with Jack Goldsmith “(Congressional Authorization and the War on Terrorism”) wherein they observed in a footnote (fn. 43) that while there was no declaration of war or other express congressional authorization, “Congress did, however, appropriate funds for the war and also renewed selective service laws to allow for the military draft.”  With respect to Korea anyway, it seems to me that in light of the more than 60 years of congressional appropriations to support military forces to oppose North Korea, it cannot be gainsaid that Congress has not had a definitive role amounting to “authorization” sufficient for constitutional purposes.

Consequently, if the armistice was considered to have been breached by North Korean actions, and the previously sustained “police action” was to therefore resume, a colorable argument can be made that no further congressional authorization is needed.

Still, I am not quite saying that the “armistice law” is necessarily controlling, but simply that it could be yet another factor supporting the legitimacy of a “military option” should the continuing efforts to find a peaceful solution fail, and the U.S. is presented with either accepting a dark future with a nuclearized North Korea bent on ruthlessly coercing the U.S. and its allies, or doing something about it.

As Ralph Peters recently said, as terrible as war would be, and as preferable a diplomatic solution is, “the words we never should hear in regard to North Korea’s nuclear threats are ‘We should’ve done something.’” Peters adds:

“When we’re threatened with nuclear destruction by North Korea, a military response is not unethical. Rather, inviting a North Korean attack by hesitating endlessly — then witnessing the slaughter of tens, if not hundreds, of thousands of our citizens — would be unethical and immoral.”

That said, no one wants war.  Every effort needs to be taken to ensure that if we come to that terrible point where the military option must be exercised, we know it is the last resort and only viable option remaining to protect our country and its citizens.   And we aren’t there…yet.

As we like to say on Lawfire, get the facts, consider the analyses, and make your own decision.