By Toby Fenton
In his speech at the UN General Assembly in September, US President Donald Trump declared that “North Korea’s reckless pursuit of nuclear weapons and ballistic missiles threatens the entire world with unthinkable loss of human life.” Laying out the proposed US response to this threat, Trump made his position clear: while the US “has great strength and patience,” Trump said, if the US “is forced to defend itself or its allies, we will have no choice but to totally destroy North Korea.” Pyongyang’s development of nuclear weapons is one of the most significant threats to regional (and even global) peace and security. Few observers – at least outside of North Korea – would disagree with Trump’s assertion that a fully nuclear-armed Pyongyang is something that “No nation on Earth has an interest in seeing”. North Korea’s provocative nuclear and ICBM tests and the US’ heightened military posture in the region, compounded by inflammatory rhetoric from both sides, represent a dangerous game of brinkmanship.
Trump’s particular phraseology regarding how the US would act might be somewhat understandable, given the nature and history of the situation. Trump’s pledge may have been intended to reassure the American public and her allies. It could bolster US credibility as a regional security guarantor against North Korean aggression. It also fits the pattern of fiery tit-for-tat rhetoric between the US and North Korea that has become commonplace over the past year. However, Trump’s threat to “totally destroy” North Korea was not only highly provocative and carelessly unthinking in its own right – it will likely only worsen the situation – but it also places the US on very shaky legal (and ethical) ground.
What’s in a threat?
President Trump’s threat was not that the US would use something akin to ‘all necessary measures’ (a phrase beloved by the UN Security Council) against a North Korean attack. Nor did Trump state explicitly that the US is prepared to use its own nuclear weapons if it came to an actual or imminent nuclear exchange. Instead, Trump threatened to “totally destroy” North Korea if the US was “forced to defend itself or its allies”.
While much attention is paid to the legality of the use of force in international relations, arguably less attention is paid to threats to use force. Yet under international law, these concepts bear close similarities. UN Charter Article 2(4) prohibits “the threat or use of force” in international relations – with the only two Charter exceptions being force authorised by the UN Security Council under Article 42, and force as an act of individual or collective self-defence under Article 51. In its oft-cited 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice (ICJ) noted that “if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal.” The ICJ further noted that determining whether a threat to use force would violate Article 2(4) “depends upon whether the particular use of force envisaged would be directed against the territorial integrity or political independence of a State, or against the Purposes of the United Nations or whether, in the event that it were intended as a means of defence, it would necessarily violate the principles of necessity and proportionality.” In this view, the legality of a threat to use force for self-defence is subject to the same criteria as the use of force so envisaged.
Under customary international law the two constitutive criteria of the ‘inherent right’ (as it is called in the UN Charter) of self-defence are necessity and proportionality. US-British diplomatic correspondence following the mid-19th century Caroline incident established that the necessity of using force in self-defence must be “instant, overwhelming, leaving no choice of means, and no moment of deliberation”. Force must be an absolute last resort. In the face of an actual or imminent attack by North Korea, the US’ use of force in self-defence would prima facie meet the requirement of necessity. The post-Caroline correspondence also established the criterion of proportionality: force used in self-defence must not be “unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it”. The use of force must be proportional to what is necessary to defend against a particular attack.
To totally destroy, or not to totally destroy? That is the question…
Would the total destruction of North Korea be legally justifiable as a means of self-defence? The legality of the use or threat of force by the US would be determined by the nature and circumstances of the attack (‘anticipatory’ or ‘pre-emptive’ self-defence notwithstanding). Fortunately, such an attack has not occurred; and it is difficult to say what form it would take. However, Trump’s threat to “totally destroy” North Korea goes far beyond what could reasonably be considered both necessary and proportional in self-defence. Attempting or threatening to “totally destroy” another country as a means of self-defence is unlikely to ever be lawful – unless doing so is the only way to defend against an attack.
This raises another question: under what circumstances would a North Korean attack make the total annihilation of that country and its 25 million people – the vast majority of whom are civilians – both necessary and proportional? In making such threats, neither Trump nor his legal advisors – assuming they were consulted – appear to have given these questions serious consideration. That there exists an inherent right of every state (indeed, every person) to use force for self-defence is unquestionable. However, Trump’s threat was positioned against the prospect of the US being “force to defend itself” against some unqualified North Korean attack, with the inference from Trump’s statement being that any attack by Pyongyang would automatically trigger the US to initiate the total destruction of North Korea. That threat is likely to have constituted a serious violation of international law – articulated, ironically, in the primary chamber of the very organisation established to advance international peace, security, and the rule of law.
A pattern is apparently emerging in the US administration. Trump’s stated threat towards North Korea (legal opaqueness notwithstanding) follows the administration’s inability, or refusal, to articulate a coherent legal basis for its cruise missile strike against a Syrian airbase in April this year, following an alleged chemical weapons attack. In that case, many (especially Western) political leaders and observers supported the US strike – although, importantly, the lack of proper US legal justification arguably nullified any potential opinio juris (that is, a sense of legal obligation to act in a certain way) that could be attributable to Washington, thus in turn making subsequent international support for the strike legally moot. Following Trump’s speech at the UN General Assembly in September, however, the international reaction was far more discouraging. Perhaps threatening the total annihilation of another country really was a step too far.
Toby Fenton recently completed a Masters degree in International Peace & Security at King’s College London.
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