Michael Schmitt and Ryan Goodman / Just Security – 2018-01-27 00:57:09
Best Advice for Policymakers on “Bloody Nose” Strike against North Korea: It’s Illegal
Best Advice for Policymakers on
“Bloody Nose” Strike against North Korea: It’s Illegal
Michael Schmitt and Ryan Goodman / Just Security
(January 23, 2018) — As tensions de-escalate on the Korean Peninsula, the international legal debate over the so-called “Bloody Nose Strategy,” which involves “a limited military strike against North Korean sites without igniting an all-out war on the Korean Peninsula” has moved in the other direction.
In particular, Lieutenant Colonel Shane Reeves and Captain Rob Lawless have argued on Lawfare, that “there is a strong argument such a strike would be lawful” under international law. In an Opinio Juris post, Professor Kevin Jon Heller begs to differ. So do we. To put a stronger point on it, we believe policymakers would be badly misled by the notion that such a strike would be lawful.
The strategy has apparently been the subject of quiet debate in the Administration. According to the Wall Street Journal, the proposal would be to “[r]eact to some nuclear or missile test with a targeted strike against a North Korean facility to bloody Pyongyang’s nose and illustrate the high price the regime could pay for its behavior. The hope would be to make that point without inciting a full-bore reprisal by North Korea.”
Reeves and Lawless wisely side-step the merits of a possible policy decision to adopt the strategy. In the still tense security environment prevailing in Northeast Asia, any serious consideration of such a risky strategy would prove highly destabilizing, just as the dangerous bluster that has emanated from both Washington and Pyongyang finally seems to be subsiding, presumably much to the relief of Seoul, Tokyo, Beijing and other capitals in the region and beyond.
Yet, there is another reason to be concerned about a bloody nose strategy. Except in the narrowest of circumstances (which are not foreseeable here), it would be unlawful.
Our best assessment is that it would amount to a violation of the prohibition on the use of force set forth in Article 2(4) of the UN Charter and customary international law. It would also likely fit the definition of a crime of aggression. To make our case, allow us to serially address the key legal points made by Reeves and Lawless.
The two begin by submitting that a North Korean launch of an unarmed test missile into the Japanese territorial sea could be considered an “armed attack” against Japan on the basis that the missile test constitutes the launch of a weapon into another State’s territory.
This is important because if it did indeed constitute an armed attack, Reeves and Lawless are correct that Japan would then be entitled to resort to force in self-defense pursuant to Article 51 of the UN Charter and customary international law.
Arguably, a test rocket without armed explosives is merely a delivery system, not a “weapon.” On the other hand, such a rocket is capable of causing “injury to, or death of, persons” or “damage to, or destruction of, objects” and thus could be construed as a “weapon.”
According to the UN General Assembly and the Rome Statute, a “[b]ombardment by the armed forces of a State against the territory of another State, or the use of any weapons by a State against the territory of another State” is an act of aggression.
Such a North Korean missile launch would seem to fall within this definition and could reasonably be interpreted as an armed attack. This would, of course, trigger Japan’s individual right of self-defense and, more importantly for purposes of this post’s analysis, the United States’ right of collective self-defense.
The suggestion that an unarmed missile may qualify as a weapon is unsupportable. One of us was among the drafters of the Harvard AMW Manual cited by Reeves and Lawless for support and can attest that no participant in the project suggested that an unarmed missile (or aircraft) could qualify as a weapon merely because it might incidentally strike someone or something, especially during a peacetime test (and even more so if landing in open waters).
Instead, the definition of weapons was meant to distinguish such equipment as electronic warfare jammers from weapons and weapon systems used to conduct attacks. Of course, if intentionally launched with the foreseeable result that the missile would land in a populated area and harm individuals or property with a significant scale and effect, then the operation might qualify as an armed attack regardless of whether it carried a warhead. But that is not the case here.
Moreover, their reference to “aggression” involves a category mistake. Acts of aggression must not be confused with “armed attacks,” which are a condition precedent to exercise of the right of self-defense. Rather, aggression is, pursuant to Article 39 of the UN Charter, one of the situations that empowers the Security Council to act under Chapter VII of the UN Charter.
Aggression is also an international crime under the Rome Statute and, arguably, customary international law. We recognize that since an act of aggression is engaged in without justification by means of a “use of force,” it also would almost always amount to an internationally wrongful act.
But, aggression as such cannot necessarily be equated with an “armed attack.” They are different legal standards that serve differing purposes; the two are not coterminous. Some acts of aggression may also amount to an armed attack, but many acts of aggression would not.
Solely for the sake of analysis, assume that a North Korean missile test into Japanese waters would qualify as an unlawful use of force against Japan. For the vast majority of States, albeit not the United States, all armed attacks may be uses of force, but not all uses of force amount to armed attacks justifying the use of force in self-defense.
Rather, armed attacks are, according to the International Court of Justice’s judgment in Nicaragua, “the most grave forms of the use of force;” characterization as such depends on the act’s “scale and scope.” 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.
It is a mistake for any analysis of US strikes against North Korea, that of Reeves and Lawless included, not to address the fact that the contrary US position on this issue of law is anomalous. Policymakers would be well-advised to be informed of that fact.
Nevertheless, let us further assume, again only for the sake of this analysis, that a missile test into Japanese waters does constitute an armed attack against Japan. Any response would have to meet the requirements of necessity and proportionality recognized by the International Court of Justice in Nicaragua, Nuclear Weapons, Oil Platforms, and Armed Activities, as well as the generally accepted temporal criteria of either imminency or immediacy.
Necessity requires that non-forceful measures be inadequate to put an end to an on-going attack or defeat an imminent one. In this case, it would have to be at least reasonable in the circumstances to conclude that non-forceful measures such as third-party (China) pressure or more severe sanctions would not suffice to convince North Korea to stop conducting this type of test.
Proportionality would cap any defensive response at the level needed to compel North Korean to do so. The “limited” nature of the bloody nose strategy may sound positive in this regard, but if the targets of the strikes are nuclear-related facilities or other critical assets, the risk that the situation would escalate, rather than diminish, would, as a matter of law, auger against acting in self-defense.
Even without contemplating possible escalation, it is hard to see how a US military strike on a nuclear facility would be proportionate to an unarmed projectile dropping in Japanese waters. (Reeves and Lawless do not attempt to address the proportionality criterion in their analysis.)
Finally, unless it could be reasonably concluded that subsequent missile tests would be conducted and that a forceful response would be necessary to stop them, the armed attack would neither be imminent, nor could the tests be treated as one in a series of actions that constitute an on-going campaign that in its entirety constitutes an armed attack. Again, the facts are such that labeling North Korean missile tests as an armed attack would distort the notion beyond recognition.
Stretching the analysis one step further, consider the issue of collective self-defense raised by Reeves and Lawless. Again assuming for the sake of analysis that the missile tests could qualify as an armed attack, Japan would have to request assistance at the use of force level before the United States could execute the bloody nose strategy.
This requirement was set forth in the ICJ’s Nicaragua judgment: “At all events, the Court finds that in customary international law . . . there is no rule permitting the exercise of collective self-defense in the absence of a request by the State which regards itself as the victim of an armed attack.” The Court reiterated it in the Oil Platforms and Armed Activities judgments.
Reeves and Lawless acknowledge the Court’s view, but somehow label it “highly debatable,” linking to Yoram Dinstein’s classic War, Aggression and Self-Defense. However, Dinstein’s approach is more nuanced. He notes that Judge Jennings, in his Nicaragua dissent, observed that it may not be realistic to require a formal request from the victim State in all circumstances.
Building on this point, Dinstein argues that a State engaging in collective self-defense need not secure a request from the attacked State if the defensive measures take place outside the latter’s territory, as in the case of bloody nose strikes.
But, the situation he envisages is narrower than Reeves and Lawless seem to indicate, for Dinstein opines further that “[w]hen Arcadia commences an armed attack (the direct victim of which is Utopia), and Ruritania perceives that its own security is jeopardized, Ruritania is entitled under Article 51 of the Charter to resort to counter-force.”
Note that Ruritania is acting pursuant to its own right of self-defense, not Utopia’s. When operating solely in support of an attacked State, Dinstein supports the requirement of a request for assistance.
In fact, the requirement of a request for assistance in collective self-defense is not contentious. For instance, when the issue arose during the Tallinn Manual project in the cyber context, the International Group of Experts unanimously accepted Rule 74, which provides, in part, that “Collective self-defense against a cyber operation amounting to an armed attack may only be exercised at the request of the victim State and within the scope of the request.” No State has voiced an objection to the Rule, nor are we aware any State currently taking a contrary position.
Reeves and Lawless also intimate that the 1960 Treaty of Mutual Cooperation and Security between the United States and Japan may provide the necessary basis for US action. Article V of that treaty provides that both the United States and Japan agree that an armed attack against either Party in Japanese territory “would be dangerous to its own peace and security” and that therefore the parties will “act to meet the common danger.”
However, the provision does not state that an armed attack against one of the parties (Japan) would qualify under international law as an armed attack against the other (the US) such that the latter may either act in its own individual self-defense or relieve the party coming to the defense of the other of its obligation to seek the consent of the latter. As Kevin Jon Heller spells out, the text of the treaty appears to say the opposite.
Even if there is a requirement of a request from Japan, Reeves and Lawless conclude that “on a more practical note, it is highly unlikely Japan would oppose a collective self-defense strike by the United States.” We disagree. The strike would be regionally destabilizing and Japan, together with South Korea, would bear the brunt of any North Korean response. This reality augurs against any such request.
Finally, the two float an argument that the United States might be able to rely on individual self-defense against an armed attack to justify a bloody nose strategy.
While somewhat controversial, the United States interprets the individual right of self-defense to allow for a preemptive-but-proportional strike when the need to do so is imminent. In other words, if the United States determines North Korea’s behavior indicates a forthcoming attack it can act in self-defense before absorbing the first blow.
The issue of pre-emptive self-defense, first raised as such in the 2002 National Security Strategy, remains not “somewhat” controversial — it is highly so. When Israel invoked such a concept in striking a nuclear facility in Iraq in 1981, a unanimous Security Council, including the United States, passed a resolution saying the body “strongly condemns the military attack by Israel in clear violation of the Charter of the United Nation.”
In the run-up to the 2003 Iraq war, the UK Attorney General submitted an internal document stating, “I am aware that the USA has been arguing for recognition of a broad doctrine of a right to use force to pre-empt danger in the future . . . . this is not a doctrine which, in my opinion, exists or is recognised in international law.”
When the United States launched strikes against Iraq, as Marty Lederman notes, “the United States conspicuously declined to invoke self-defense in justification of that use of force.)” Today, the United Kingdom openly repudiates the idea of pre-emptive self-defense (see 2017 speech by the current U.K. Attorney General).
Reeves and Lawless appear to point to a 2016 ASIL speech by then-Legal Adviser to the State Department Brian Egan which discussed the concept of imminence against non-State actors for support of their position on a pre-emptive attack against North Korea. They then suggest the North Korea situation appears to fit the requirements.
North Korea’s recent activities help support a preemptive self-defense argument. Despite extensive efforts by the international community, including through diplomacy, negotiations, collaboration, and sanctions, North Korea continues to defiantly test powerful nuclear weapons and launch ballistic missiles. Furthermore, it has gone to great lengths to conceal its nuclear testing program by creating underground facilities and intricate tunnel systems.
This behavior, coupled with North Korea’s pattern of aggressive rhetoric and threats against the United States and other nations, makes a preemptive use of force seem more and more necessary. As the North Korean threat increases and non-military measures are exhausted, it becomes reasonable to believe that the last opportunity for the United States to act is fast approaching.
The problem with their assertion is that self-defense does not extend to taking actions against States on the basis that they represent a threat, without more. Clearly, North Korea’s growing missile wherewithal, combined with its nuclear ambitions, represents a threat, at least with respect to US forces in the region.
But as Egan noted, it is the armed attack against the United States that must be imminent before resorting to force anticipatorily, not the mere acquisition of the capacity to attack. Until reliable intelligence becomes available that reasonably leads the United States to conclude that North Korea has decided to attack, and that non-forceful measures will not deter that attack, the situation falls short of the US position on self-defense.
[As an aside: Reeves and Lawless link to an analysis of Egan’s speech by Marty Lederman, but Lederman wrote: “That’s what made the Bush ‘preemption’ doctrine so controversial. Neither Brian Egan nor (as far as I know) any other Obama Administration official has endorsed such an untenable understanding of international law”.]
The key flaw in their logic is that the “last window of opportunity test” does not refer to the last window of opportunity to remove a potential threat. As one of us wrote in 2004 (see also here):
A more fruitful approach is to interpret imminency in light of its underlying purposes — permitting States to defend themselves effectively against attack while allowing the greatest opportunity possible for means short of the use of force to resolve the situation.
Balancing these purposes in the current security context yields an interpretation that allows a State to act anticipatorily (pre-emptively) if it must strike immediately to defend itself in a meaningful way and the potential aggressor is irrevocably committed to attack.
The determinative question when evaluating claims to anticipatory self-defense is whether the defensive action occurred during the last possible window of opportunity in the face of an attack that was almost certainly going to occur.
This standard, which was adopted publicly by the United States nearly a decade later, is not met by North Korean missile tests, at least not yet; it provides no basis for the Bloody Nose Strategy.
In our view, therefore, the answer to the question posed in the title to the Reeves and Lawless piece, “Is There a Legal Basis for the Bloody Nose Strategy,” is unequivocally “no.” Policymakers would be well advised to understand that international law does not support such an option.
Michael Schmitt — Chair of Public International Law at the University of Exeter Law School in the United Kingdom, Charles H. Stockton Professor at the US Naval War College’s Stockton Center for the Study of International Law, Francis Lieber Distinguished Scholar at the US Military Academy at West Point, Director of Legal Affairs for Cyber Law International Follow him on Twitter (@Schmitt_ILaw).
Ryan Goodman — Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016) Follow him on Twitter @rgoodlaw.
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