The “Bloody Nose” strategy debate: why it’s more complicated than some think

A robust debate has emerged over a Lawfare post by Lieutenant Colonel Shane Reeves and Captain Rob Lawless  entitled “Is There an International Legal Basis for the ‘Bloody Nose’ Strategy?”  It examines the legality of the so-called “bloody nose” strategy, which calls for a limited strike on a North Korean “missile site or military base” in the event the North Koreans launch an ICBM into Japanese territory.  Reeves and Lawless conclude there could be a legal basis, but the critics – and they are very formidable ones – unequivocally disagree.  My own view is that the issue is more complicated than the debate reflects thus far.

I very much encourage you to read Reeves’ and Lawless’ essay (here), as well as those of the critics: Kevin Jon Heller on Opinio Juris (here) and Mike Schmitt and Ryan Goodman on Just Security (here).

I’m loathe to try to summarize their views, but what seems to especially complicate the discussion is the hypothetical Reeves and Lawless posit.  They contend that even if the North Korean missile was “unarmed,” there might still be a plausible legal basis to justify a U.S. military strike in response.  (Parenthetically, I really don’t know how – or even if – anyone can determine if an ICBM in flight is carrying a nuclear warhead or not.)

Be that as it may, Heller argues, inter alia, that an incident involving an “unarmed” missile is so “de minimis” it could not possibly justify an armed response in self-defense pursuant to Article 51 of the UN Charter.  Schmitt and Goodman say that an “unarmed missile” is not a weapon within the meaning of international law, and – further – that the “launch of an unarmed missile into another State’s waters without harm to individuals or property can hardly be said to be a use of force that is among the gravest forms thereof.”

Along that line they dismiss the U.S. position (i.e., that any use of force contrary to the UN Charter triggers the right to self-defense) as being “anomalous.”  Instead, they adhere to the popular interpretation that a nation suffering a “use of force” cannot respond with military strike unless the initial use of force (or the imminently anticipated use of force) is severe enough to amount to not just a use of force, per se, but rather an “armed attack” as set forth in Article 51 (i.e., “among the gravest forms” of force).  Again, read their full presentation.

Here’s something of a mystery: for whatever reason, all the critics seem to think that Reeves’ and Lawless’ scenario had the North Koreans firing a missile harmlessly “into Japan’s territorial sea.” However, what they actually hypothesized was a North Korean missile (albeit without a warhead) that went into “Japanese sovereign territory” (which is, of course, much more than just the territorial sea).

Does that nuance matter?  A missile falling harmlessly into a territorial sea might be of little concern, but you decide for yourself if a seventy-ton object – described as a “monster” – crashing into the land mass of a nation’s “sovereign territory” is, even if unarmed, “de minimis” or not. (I’m on the “not” side.)

I’m also not so sure why the critics seem to consider the North Korean missile launch in Reeves’ and Lawless’ scenario apart from the sixteen other North Korean missile launches in 2017.  To me, the context matters: a single, isolated launch of a missile that’s somehow known to be unarmed is one thing, but a pattern of launches from a rogue regime issuing repeated threats about nuclear attacks is something quite different.  Allow me to explain why.

I think it’s a mistake to too readily assume that a so-called “test” missile shot is intrinsically and incontrovertibly benign. It’s a fairly standard military tactic to induce complacency in your opponent by employing ruses and feints as a part of a extended attack operation.  (This is especially so in Soviet military theory which still seems to dominate North Korean thinking.)

Let’s ask ourselves, can we really be sure that we’re not we witnessing something like that with the North Koreans?  Are these repeated launches of “unarmed” missiles part of a sophisticated North Korean operation (already underway?) which is intended to lull the U.S. and its allies into thinking the missile launches are merely harmless “tests”?

Here’s why this is a particular tactic could be a real concern given the nature of America’s missile defenses.  Last December, RADM Jon Hill, deputy director of the U.S.’s Missile Defense Agency, spoke about the importance of “building and maintaining a robust layered defense system as ship-based and land-based radar and interceptors coordinate with satellites.”

RADM Hill said that “gathering enemy missile launch data early is vital for the defense system to be effective.”  He said that with “the Aegis radar system aboard guided missile destroyers… [his] agency has the ability to receive very early looks at when an enemy launch is occurring…”  Continuing:

“If that ship is based is properly placed up forward, it gets an early detection, and can cue the ground-based missile defense,” Hill said. “It allows them to detect a lot earlier and shoot a lot earlier.”

While parking ships off the coast of threatening nations provides missile defense operators a decisive advantage in calculating a missile’s track, Hill conceded doing so comes with a cost to the fleet’s operational tempo.

You can see where this is going.  Could the repeated “test” launches of “unarmed” missiles be the first stage of a drawn-out attack that’s designed to lull the U.S. into drawing the destroyers with the “vital” Aegis radar system away from North Korea by making it seem that their presence for the missile “tests” is an unnecessary “cost to the fleet’s operational tempo”?  In that way, the North Koreans can exploit the absence of the ships to successfully complete an attack with an armed ICBM.   In other words, legality has to be evaluated in the full context – not just a single act – and with an eye towards an appreciation of the military methodologies that resonate with the adversary.

Thus, “unarmed” missiles launches advertised as “tests” may, in fact, serve a very specific and nefarious offensive purpose.  If so, it would hardly be the first time in military history that completely harmless objects are part of a clever warfighting stratagem that has a catastrophic impact on the party against whom it is directed.

If even one “test” missile turned out to be the real thing, how much damage could it do if it exploded not on Japan’s mainland but only over its territorial sea?  Maybe a lot.  As a September 2017 Popular Mechanics article explains, an electromagnetic pulse (EMP) from a nuclear detonation “could take down an electrical power grid, causing economic chaos rather than human casualties.”  Furthermore, a nuclear weapon of “more than 100 kilotons affects everything within line of sight [which] means a blast at [an altitude of] 60 miles will affect a 700-mile radius.”  North Korea is reported to have 100 kiloton weapon.

All of this said, one issue with Reeves’ and Lawless’ essay is that they use the term “preemptive” strike in their discussion of self-defense (see e.g., “individual right of self-defense [can] allow for a preemptive-but-proportional strike when the need to do so is imminent”).  I think that the better way of expressing this view these days is to use the phrase “anticipatory self-defense” and avoid the word “preemptive.”

Why?  Check out Alexander Potcovaru’s Lawfare essay from last summer entitled “The International Law of Anticipatory Self-Defense and U.S. Options in North Korea.”  In it he carefully parses the relevant terms: anticipatory self-defense, preemptive self-defense, and preventive self-defense.  They each have unique meanings.

Perhaps even more importantly, Potcovaru’s essay reviews several incidents involving attacks intended to hobble a rogue state’s nuclear ambitions. With respect to North Korea, he concludes:

In short, the limited ground covered in this piece amounts to the following: 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. (Emphasis added).

I’m not aware of the critics addressing Potcovaru’s contentions, but if the notion of a possible basis under international law for striking North Korea – “bloody nose” or whatever – is to be written off as the critics have done with Reeves’ and Lawless’ suggestion, Potcovaru’s enumeration of state practice and the international reaction (or not) to similar acts ought to be unpacked before the legality analysis is finalized.

Moreover, another aspect of the law that I’ve raised previously (“Assessing the legal case for the use of force against North Korea: is ‘armistice law’ a factor?”) and again quite recently (“No, Ceasefires and Armistices Are Not ‘Outmoded’”) is the implications of the still-extant armistice with North Korea.  Consider that, generally speaking, a renewal of hostilities where an armistice or cease-fire is in place does not necessarily require an act amounting to an armed attack or even a use of force of any kind.  Perhaps this is yet another potential legal basis ought to be further explored before we definitively concluded that no legal rationale exists for a strike (putting aside for this discussion the political/strategic wisdom of any such attack).

I’m also a bit puzzled about the discussion of the complexities of collective self-defense in which all the writers engage. After all, there are some 54,000 American military personnel (and thousands more dependents) stationed at multiple locations in “Japanese sovereign territory” – a number of troops that’s more “than in any other foreign country.”

In my view, if force is used against Japan that would otherwise permit an Article 51 response, it is quite likely that it’s not necessary for the U.S. to wrestle with the intricacies of the law of collective self-defense, as there are plenty of American military assets – not to mention thousands of U.S. citizens – in Japan to defend.  The U.S. has more than 54,000 of its own reasons to unilaterally act in self-defense.

Anyway, I hope you take away from this discussion the axiomatic truth that with respect to questions about the use of force, the facts and context really do matter – a lot.  Legal analysts – particularly outside of government – need to have a keen appreciation of what facts they don’t know, and qualify their opinions accordingly.  Most importantly, because key facts are frequently uncertain or disputed, coming to a conclusive legal opinion aimed at decision-makers (even if we can agree upon what law applies) is often not a simple task, but rather one considerably more complicated than it may seem at first blush.

Still, remember what we like to say here on Lawfire: examine the facts, assess the law, and make your own determination