Fordham International Law Journal
April, 2004 North Korea:
Legal Perspectives and Analyses
Articles *1379
THE SWORD IN THE MIRROR -- THE LAWFULNESS
OF NORTH KOREA'S USE AND THREAT OF USE OF NUCLEAR WEAPONS BASED ON THE UNITED
STATES' LEGITIMIZATION OF NUCLEAR WEAPONS
Charles J. Moxley, Jr. [FNa1]
Copyright (c) 2004 Fordham University
School of Law; Charles J. Moxley, Jr.
This Article addresses the lawfulness of the
use or threat of use of nuclear weapons by the Democratic People's Republic of
Korea ("North Korea" or "DPRK"). I address the topic from three perspectives: 1) North Korea's own
statements of the matter; 2) U.S. statements of the law as applied to its own
nuclear weapons; and 3) my evaluation of the matter based on international law
as stated by the United States and as found by the International Court of
Justice in the Nuclear Weapons Advisory Decision. [FN1]
Because of the relevance of the potential
effects of nuclear weapons to this legal issue, I review such facts. Because North Korea justifies its nuclear
weapons program on the grounds of self-defense, I also review the history of
hostilities between the United States and North Korea, and the current
strategic positions of the two States.
The thesis of this Article is that the United
States' efforts to *1380 curtail the nuclear aspirations of North Korea and
other States are hampered by the United States' unsupportable position that the
use and threat of use of nuclear weapons are generally legal. Due to its legitimization of nuclear weapons
and its support of the right of States broadly to withdraw from arms control
agreements, the United States has largely deprived itself of law as a basis for
opposing nuclear proliferation.
INTRODUCTION
North Korea, having previously espoused the
unlawfulness of the use or threat of use of nuclear weapons before the
International Court of Justice ("ICJ"), now asserts that it is
entitled to use and threaten to use such weapons in self-defense because of the
United States' hostile actions and threats-- including the U.S. policy of
preemptive strike, exemplified by the recent war in Iraq.
The United States has long acknowledged the
binding nature of international law, including the law of armed conflict. It has specifically acknowledged the rules
of necessity, proportionality, and discrimination arising under that law which
provide that: (1) it is unlawful to use weapons involving a level of force not
necessary in the circumstances to achieve the military objective; (2) it is
unlawful to use weapons whose probable effects upon combatant or non-combatant
persons or objects would likely be disproportionate to the value of the
anticipated military objective; and (3) it is unlawful to use weapons that
cannot discriminate between military and civilian targets.
The United States recognizes that under the
rules of necessity, proportionality, and discrimination it is unlawful for a
State to use or threaten to use weapons, including nuclear weapons, whose
potential effects would be uncontrollable.
The United States however, puts forth the following contentions in
support of its argument that the use of nuclear weapons is generally
lawful:
1. There is no applicable per se rule, and
accordingly, each potential use of nuclear weapons must be evaluated
independently to see if it can comply with the requirements of international
law, including the rules of necessity, proportionality, and
discrimination.
*1381 2. The United States is able to control
the effects, including the radiation effects, of nuclear weapons.
3. With its technologically advanced modern
delivery systems, the United States is able to deliver nuclear weapons,
particularly highly accurate low-yield weapons, with great accuracy to desired
targets, avoiding excessive collateral damage to civilians, neutrals, and other
protected persons and objects.
4. The effects of nuclear weapons are no
worse than those of conventional weapons.
5. The radiation effects of nuclear weapons
are not relevant to the lawfulness of the use of such weapons.
6. Only specifically intended effects of
nuclear weapons are unlawful, so that effects that result from mere
recklessness or gross negligence are not unlawful.
7. A potential use of a nuclear weapon could
only be deemed unlawful in advance if it were clear that it would
"necessarily" and "inevitably" lead to impermissible
effects or other violations of law.
8. Only the immediate and direct effects of
nuclear weapons--particularly the blast and thermal effects--need be considered
in evaluating the lawfulness of the use of the weapons, so that it is
unnecessary to consider other effects, such as the likely resultant escalation
of use of nuclear, chemical, and/or biological weapons by one's adversaries and
their allies and ultimately by oneself.
9. The collateral killing of civilians is
lawful as long as the civilians are not targeted "as such."
10. Nuclear weapons may lawfully be used in
reprisal.
These rationales for the U.S. nuclear
program, which serve at least equally to legitimize the North Korean program,
are factually and legally unfounded. Based upon the facts and law, it is clear
that virtually any use of nuclear weapons, in the circumstances in which such
weapons might actually be used, would be unlawful and that the policy of
deterrence is unlawful.
The North Korean nuclear program is an
interesting case study as to how these legal issues arise since North Korea
finds itself in a strategic position analogous to that of the United States
vis-a-vis the Soviet Union during the Cold War. Just as the United States was vulnerable to the overwhelming
conventional *1382 weapons capabilities of the Soviet Bloc, so too, and even
more so, is North Korea vulnerable to the overwhelming conventional
capabilities of the United States.
North Korea justifies its putative nuclear
weapons program in part on its economic problems, specifically on the ground
that it does not want to spend the greater amounts that would be necessary to
develop a more powerful and reliable conventional weapons program. This implicates the emerging international
law issue of whether a State may justify its use of a more indiscriminate
weapon when the need for such use results from its intentional failure to have developed
and maintained more discriminate weapons.
I.
BACKGROUND TO CURRENT NORTH KOREAN NUCLEAR POSTURE
The
lawfulness of North Korea's nuclear program is affected not only by the rules
of customary, conventional, and other international law applicable to the use or
threat of use of nuclear weapons, but also by the 1992 Joint Declaration of the
Denuclearization of the Korean Peninsula ("Joint Declaration") [FN2]
between the Republic of Korea ("South Korea") and North Korea, and
the October 21, 1994 Agreed Framework between the United States and North Korea
(the "Agreed Framework"). [FN3]
A. Joint
Declaration
The Joint Declaration provided that neither
North nor South Korea would "test, manufacture, produce, possess, store,
deploy, or use nuclear weapons." [FN4]
The Joint Declaration further provided that nuclear energy would be used
by the two States for peaceful purposes and that neither would possess nuclear
reprocessing or uranium enrichment facilities. [FN5] *1383
B. Agreed
Framework
The Agreed Framework provided for North
Korea's termination of its nuclear weapons program in exchange for financial
assistance for its energy program from an international consortium, and
security assurances from the United States against the threat or use of nuclear
weapons by the United States. [FN6]
Specifically, North Korea agreed to replace its graphite-moderated
reactors and related nuclear facilities with
"proliferation-resistant" light water reactor power plants, to be
financed by the United States, Japan, and South Korea, among others, [FN7] and
to continue as a party to the Treaty on the Non-Proliferation of Nuclear
Weapons ("NPT"). [FN8]
C. NPT
The NPT [FN9] provides that the five
identified nuclear weapon States [FN10] agree to pursue general and complete
disarmament through good faith negotiations, [FN11] and to refrain from
transferring nuclear weapons or in any way encouraging their manufacture,
[FN12] and that the non-nuclear weapon States agree to forego developing or
acquiring nuclear weapons. [FN13] North
Korea became *1384 a party to the NPT in 1985, stating that it was doing so to
remove the nuclear threat from the United States, [FN14] and to resolve North
Korea's need for nuclear energy. [FN15]
Under the NPT regime, non-nuclear weapons
States are required to enter into a "safeguard agreement" with the
International Atomic Energy Association ("IAEA"). [FN16] North Korea delayed entering into such an
agreement because of what it characterized as nuclear threats from the United
States, including the United States' continued placement of nuclear weapons in
South Korea, and the "Team Spirit" nuclear war exercise [FN17] the
United States directed against North Korea. [FN18]
In 1992, North Korea entered into a safeguard
agreement with the IAEA [FN19] after receiving assurances from the United
States that it would not use nuclear weapons against North Korea, *1385[ FN20]
and after receiving representations from South Korea that there were no nuclear
weapons within its borders. [FN21] In entering
into the agreement with the IAEA, North Korea stated that it was doing so on
the premise that "none of the NPT member countries will deploy nuclear
weapons on the Korean Peninsula and pose a nuclear threat to DPRK." [FN22]
D. North
Korea's Withdrawal from the NPT and Assertion of the Invalidity of the Joint
Declaration and of the U.S. Breach of the Agreed Framework
On January 10, 2003, however, North Korea
announced its immediate withdrawal from the NPT on the ground that it was
"most seriously threatened" by the United States. [FN23] North Korea stated that the United States
had threatened it with preemptive nuclear attack and other belligerent actions
such as blockades. [FN24] North Korea
further stated that the United States had breached the Agreed Framework by
failing to provide light-water reactors ("LWRs") [FN25] and
suspensing its promised heavy oil shipments. [FN26] North Korea also alleged
that the United States had "instigated even the IAEA to internationalize
its moves to stifle the DPRK, thus putting into practice its declaration of a
war against the *1386 DPRK." [FN27]
North Korea stated at the time that, even
though it was withdrawing from the NPT, its nuclear activities would be limited
to "peaceful purposes including power generation at the present
stage." [FN28] It further stated,
"If the U.S. . . . legally assures the DPRK of its non-aggression
including the non-use of nukes, the DPRK can also clear the U.S. of its security
concerns. ." [FN29]
In a May 12, 2003 Detailed Report, North
Korea further asserted that the United States had invalidated the Joint
Declaration by, inter alia, maneuvering with South Korea to "reinforce
weapons by behind the screen talks," carrying out a joint U.S.-South Korea
nuclear war exercise, and introducing depleted nuclear bombs into South Korea
and later deploying them in February 1997. [FN30]
In its January 22, 2003 Detailed Report,
North Korea stated that the United States has repeatedly violated its
obligations under the Agreed Framework, concluding that the Agreed Framework
had been "undisguisedly abolished" by the United States. [FN31]
E. North
Korean Announcement of Potential Nuclear Deterrent Force
North Korea stated on June 9, 2003 that,
"[i]f the U.S. keeps threatening the DPRK with nukes instead of abandoning
its hostile policy toward Pyongyang, the DPRK will have no option but to build
up a nuclear deterrent force." [FN32] North Korea has, however, denied
ambitions to "nuclearize" the Korean Peninsula [FN33] *1387 and
purports to continue to be committed to denuclearizing the area. [FN34]
II. THE NORTH KOREAN NUCLEAR PROGRAM
There is
considerable uncertainty as to what, if any, nuclear weapons North Korea
has. North Korea has reportedly stated
that it has a nuclear weapons program [FN35] and at least suggested that it has
nuclear weapons. [FN36] However, North Korea's official posture appears to be
that it denies having such weapons and disputes the reports that it has admitted
having them. [FN37] As to its
capability to manufacture nuclear weapons, North Korea states *1388 that it has
reprocessed enough nuclear fuel rods for six plutonium bombs, [FN38] but denies
that it has a program for enriching uranium. [FN39]
U.S. officials have estimated that North
Korea has approximately two nuclear weapons [FN40] and enough plutonium to
produce *1389 up to five warheads. [FN41]
The U.S. estimates are apparently *1390 based on spy satellite
surveillance, [FN42] inference from available information as to what North
Korea has the capability of doing, [FN43] and North Korea's purported
statements on the matter, although additional information has recently come
from the Pakistani debriefing of Dr. Abdul Qadeer Khan, the "father of the
Pakistani bomb," who reportedly saw two to three North Korean plutonium
nuclear devices in 1999 while selling North Korea equipment and know-how to
North Korea for the enrichment of uranium. [FN44] The United States apparently does not contend that it has seen
such weapons. U.S. sources have
acknowledged that the clandestine nature of the North Korean nuclear program,
[FN45] the closed nature of North Korea's society, [FN46] and the fact that
North Korea has apparently not tested nuclear *1391 weapons make it difficult
to know what weapons they have. [FN47]
The United States' failure to find nuclear
and other weapons of mass destruction in Iraq, notwithstanding its prior
assertions on the matter, calls into question its assertions as to North
Korea's nuclear weapons. Both the
United States and North Korea have varying political and strategic agendas as
to how they might want to posture the matter.
Independent sources add little clarity or
certainty. China and South Korea have recently questioned the accuracy of U.S.
intelligence as to North Korea's nuclear weapons, particularly after the U.S.
intelligence failure or manipulation as to Iraq. [FN48] Russia also questioned
the matter in 1998. [FN49] Reports from
a recent unofficial delegation of U.S. nongovernmental experts, [FN50] who were
granted access to North Korean nuclear reactors, generally confirmed North
Korea's capability to produce certain volumes of plutonium [FN51] and reported
the assertions of North Korean officials as to their having reprocessed some
8000 fuel rods to extract plutonium metal in 2003. [FN52] However, the delegation was not able to
confirm whether North Korea had reprocessed the fuel rods, [FN53] whether it
has a program for enriching uranium, [FN54] whether it has the capacity to
produce nuclear weapons grade materials [FN55] or whether it has nuclear
weapons at all. [FN56]
*1392 III.
THE NORTH KOREAN AND U.S. POSITIONS AS TO THE LAWFULNESS OF NORTH KOREA'S
NUCLEAR WEAPONS PROGRAM
A. The North
Korean Position
In the Nuclear Weapons Advisory Case, North
Korea took the position before the ICJ that "the threat or use of nuclear
weapons in any case is violation [sic] of the U.N. Charter and the existing
international laws," [FN57] and that "the use of nuclear weapons by a
State in a war or other armed conflict is a clear breach of its obligations
under the international conventions . . . ." [FN58] North Korea asserted that the use of nuclear
weapons would be a breach of the Charter of the United Nations and the IAEA
mandate, "which seeks that the atomic energy should only be used for
peaceful purposes . . . ." [FN59]
Further, North Korea stated that "it is deplorable that the
legality of the threat or use of nuclear weapons is debated when complete
elimination of nuclear weapons is under serious discussion on the international
arena." [FN60]
By subsequently withdrawing from the NPT and
accusing the United States of having breached the Joint Declaration based on
nuclear threats, North Korea appears to be invoking a theory of self-defense.
[FN61] North Korea stated as follows in
its May 12, 2003 Detailed Report:
We will more strongly consolidate our massive self-reliant defense
forces that are capable of thoroughly responding to U.S. air strikes with air strikes
and U.S. ground strategies with ground strategies and thus, annihilate the
aggressors at a blow. These facts
clearly show that the United States is the *1393 ringleader that violated the
North-South Declaration of the Denuclearization of the Korean Peninsula.
[FN62]
North Korea further stated in the Detailed
Report that "[t]he [second] Bush administration that has been
systematically and extensively destroying the process of denuclearization of
the Korean Peninsula, finally made it a policy in March 2002 to mount a nuclear
preemptive strike against seven countries including our Republic."
[FN63] North Korea asserted:
This is a violent infringement upon the fundamental spirit of the
NPT in which countries possessing nuclear weapons should not threaten other
countries with nuclear weapons or use nuclear weapons; should not create a
state of emergency that endangers the fundamental interests of the non-nuclear
[S]tates; and exert all efforts to avoid nuclear war. [FN64]
Contending that U.S. accusations as to North
Korea's possessing weapons of mass destruction are provocative, North Korea
stated:
U.S. espoused nuclear suspicion, suspicion of development of
weapons of mass destruction, and suspicion of terrorism support are all to find
an excuse to wage war. Also, the war in
Iraq proved that sincerely accepting disarmament through so-called inspections
by international agencies does not prevent war but, rather, invites war. [FN65]
Specifically as to the war on Iraq, North
Korea stated:
The bloody lesson of the war in Iraq for the world is that only
when a country has physical deterrent forces and massive military deterrent
forces that are capable of overwhelmingly defeating any attack by
state-of-the-art weapons, can it prevent war and defend its independence and
national security. [FN66]
North Korea further asserted:
The reality shows that, under circumstances in which the United
States does not show any political will or intent to abandon its hostile policy
toward the DPRK, the issue of us equipping ourselves with our own physical
deterrent forces is an urgent demand for preventing a nuclear war from breaking
*1394 out on the Korean Peninsula and guaranteeing peace and security in the
work. [FN67]
Reflecting what can be seen as the de facto
irrelevance of international law in light of the nuclear programs of the United
States and other nuclear powers, North Korea has stated that, now that it has
withdrawn from the NPT, it, like the other nuclear powers, is no longer subject
to international law as to such weapons:
Now that the DPRK is no longer bound to the safeguards accord with
the International Atomic Energy Agency after its withdrawal from the NPT the
DPRK has the same legal status as the United States and other countries
possessing nuclear weapons not bound to international law, as far as the issue
of nuclear deterrent force is concerned. [FN68]
It becomes relevant to note the economic
rationale/justification North Korea has stated for its nuclear program:
The DPRK's intention to build up a nuclear deterrent force is not
aimed to threaten and blackmail others but reduce conventional weapons under a
long-term plan and channel manpower resources and funds into economic
construction and the betterment of people's living.
The DPRK will build up a powerful physical deterrent force capable
of neutralizing any sophisticated and nuclear weapons with less spending unless
the U.S. gives up its hostile policy toward the DPRK. [FN69]
North Korea contends that, in exchange for
its agreeing to a moratorium on long-range missile testing and refraining from
further exporting of missiles and missile technology, it wants a non-aggression
pact and/or a new nuclear agreement with the United States. [FN70]
*1395 IV.
THE U.S. POSITION [FN71]
While the
United States continually has objected to North *1397 Korea's development of
nuclear weapons [FN72] and in the past has asserted North Korea's violation of
its obligations under the NPT, the Joint Declaration, the Agreed Framework, and
North Korea's IAEA safeguards agreement, [FN73] it does not appear to have
based its objections on the ground that the use or threat of use of nuclear
weapons is unlawful. [FN74] The United
States also has objected to North Korea's withdrawal from the NPT, but it does
not appear to have set forth a legal basis for its objections. [FN75]
*1399 V. BACKGROUND TO THE U.S./NORTH KOREAN
ADVERSARY RELATIONSHIP
A. Korean
War
From 1905 until the end of World War II,
Korea was a colony of the Japanese empire. [FN76] Pursuant to U.S./Soviet agreement following the war, Korea was
divided into U.S. and Soviet sectors, pending Korean independence at some
unspecified time in the future. [FN77]
The Russians, who previously had been sweeping south through Manchuria,
agreed to limit their advance at the 38th parallel. [FN78] The area north of the 38th parallel was to
be occupied by the Soviet Union and that to the south by the United States.
Russian forces departed North Korea
peacefully, leaving behind a Stalinist regime under Kim II Sing and the North
Korean Peoples' Army. [FN79] Operating under a U.S. military administration
directed by General Douglas MacArthur from headquarters in Tokyo, [FN80] the
United States backed an administration headed by Syngman Rhee, who had
previously been elected president of *1400 the Korean Provisional Government
while in exile and was elected South Korean president in 1948; President Rhee's
openly declared aim was the imposition of national unity by force. [FN81]
After several years of border clashes, [FN82]
North Korea directly attacked on South Korea and moved its army south across
the 38th parallel early in the morning of June 25, 1950. [FN83] The North Korean army, led by Premier Kim II
Sun, had eight full divisions totaling 135,000 troops, with soldiers who had
served in the Chinese and Soviet World War II armies making up a large part of
the force. [FN84] The South Korean army
had only 95,000 troops, who were generally less experienced. [FN85]
The North overwhelmed the South while the
United States called on the Security Council to invoke the United Nations
Charter branding North Korea as the aggressor.
The Security Council responded and called on member states to send
military assistance to South Korea. [FN86]
The Security Council's action was supported by fifty-three U.N. members,
and twenty-nine of these made specific offers of assistance. The United States sent troops, [FN87] and
the British government responded by placing its *1401 Far East Fleet along the
Korean coast. [FN88] In total, twenty
Nations sent military assistance to Korea and were led by a single United
Nations commander, General Douglas MacArthur of the United States. [FN89]
In mid-September 1950, General MacArthur,
leading two divisions of U.N. troops, pushed the North Koreans back across the
38th parallel and proceeded deep into the north. [FN90] China, in response to U.N. forces
approaching its border with Korea, launched a preemptory attack, pushing the
U.N. forces south. [FN91]
By January 1951, U.N. forces were defending a
line well to the south of Seoul. [FN92]
The United States and its allies regrouped and by mid-April 1951 were
back in the area of the 38th parallel, at which time China launched a spring
offensive. This time the line
stabilized in the general area of the 38th parallel, where it remained for the
next two years. [FN93]
In mid-1951 the land battle had reached a
stalemate, and both sides agreed to go to the conference table for armistice
talks. The negotiations continued for
two years. [FN94] In July 1953, an
armistice was reached. [FN95]
B. Armistice
Agreement
The Korean Armistice Agreement
("Armistice Agreement") was signed on July 27, 1953 by the
Commander-in-Chief of the United Nations Command, representing U.N. forces, and
the Supreme Commander of the Korean People's Army and the Commander of the
Chinese People's Volunteers, representing North Korean and Chinese forces.
[FN96] Providing for a cease-fire, the
Armistice Agreement established a military demarcation line *1402 and
demilitarized zone, and created the Military Armistice Commission to supervise
the Agreement. [FN97] The Armistice Agreement was intended to be temporary,
pending the parties' agreement to a peace treaty following a political
conference that was set to take place within three months. The conference's goal was to resolve all
outstanding questions, including the withdrawal of all foreign forces from
Korea and a peaceful settlement to the Korean question. [FN98]
But the Armistice Agreement has never been
replaced with a treaty. [FN99] In recognition of the need for a peace treaty,
the North and South in late 1991 signed the Agreement on Reconciliation,
Non-Aggression and Exchanges and Cooperation between South and North, and in
1992 signed the Joint Declaration. [FN100]
C. North
Korean Provocations According to the United States
Despite the Armistice Agreement, there
continued to be provocations and conflicts among the parties. The U.S. Congressional Research Service
("CRS"), in a study updated in 2003, documented some 124 provocations
by North Korea against South Korea, the United States, and/or Japan between
June 1950 and March 2003. [FN101]
Such provocations included infiltrations of
thousands of armed agents into South Korea, followed by kidnapping and
terrorism; [FN102] attempted assassinations of South Korean President *1403 Park
Chung Hee in 1968 and 1974; an assassination attempt on South Korean President
Chun DooHwan in Rangoon, Burma (Myanmar) in 1983; [FN103] and the mid-air
bombing of a South Korean Boeing 707 passenger plane in 1987. [FN104] In 1968, North Korea captured a U.S.
surveillance ship, the U.S.S. Pueblo, killing one sailor and holding eighty-two
crew members prisoner for eleven months. [FN105] There have also been numerous direct military confrontations
between North Korea and the United States over the years. [FN106]
In June 1998, "North Korea declared its
intention to continue to develop, test, and deploy missiles as a means of
countering the alleged U.S. military threat." [FN107] In October 2002, as noted above, North Korea
reportedly advised U.S. envoy James Kelley "that it was pursuing a nuclear
weapons development program." [FN108]
On April 24, 2003, in a roundtable discussion among representatives of
China, North Korea, and the United States, North Korea reportedly admitted that
it had nuclear weapons. [FN109] The
North Korean officials reportedly "claimed to have reprocessed spent fuel
rods and threatened to begin exporting nuclear materials unless the United
States agrees to one-on-one talks with North Korea." [FN110]
In addition, North Korea has exported
substantial numbers of ballistic missiles and related equipment and systems
over the *1404 past several decades, establishing it as a leading ballistic
missile proliferator. [FN111] Its markets have included Egypt, Iran, Libya,
Pakistan, Syria, and the United Arab Emirates, [FN112] yielding it hundreds of
millions of dollars annually. [FN113]
In October 2002, North Korea reportedly
provided Pakistan with help in developing long range missiles, in addition to
the intermediate range ballistic missiles it had supplied to Pakistan in the
late 1990's, [FN114] in exchange for centrifuge enrichment technology
ostensibly intended for use in nuclear weapons. [FN115]
North Korea's proliferation efforts appear to
be pervasive and ongoing. [FN116] In
December 2002, a North Korean ship was *1406 found in the Persian Gulf carrying
Scud missiles to Yemen. [FN117]
Recently, Nigeria has shown interest in acquiring missile technology
from North Korea. According to a
Nigerian government spokesman, visiting North Koreans showed Nigerian military
leaders a "catalog of what they have," but "Nigeria has not
taken any concrete steps in acquiring it yet." [FN118] According to David Kay, a U.S. weapons
inspector, North Korean dictator Kim Jong Il cheated Saddam Hussein out of $10
million in an aborted deal to smuggle ballistic missile technology and other
prohibited military equipment to Iraq shortly before the recent war.
[FN119]
Notwithstanding being a member of the
Biological Weapons Convention, which largely prohibits the possession of
biological weapons, [FN120] North Korea is believed to have pursued such
weapons and methods through which to weaponize them since the 1960's through
dual-use acquisitions, [FN121] and it is currently believed to possess anthrax,
cholera, plague, smallpox, and yellow fever, among others. [FN122] North Korea
also ostensibly has a well-developed chemical weapons program. [FN123]
*1407 Although North Korea denies possession
or intent to use chemical or biological weapons, [FN124] the United States and
others believe that North Korea possesses large quantities of chemical and
biological agents [FN125] that can be delivered by missile warheads and other
munitions, [FN126] including "domestically produced artillery, multiple
rocket launchers, mortars, aerial bombs, and ballistic missiles."
[FN127] As of 1998, the Federation of
American Scientists had identified twenty special weapons facilities in North
Korea that may be producing, storing, or developing chemical or biological
weapons. [FN128] South Korean
intelligence sources indicate that, as of 1999, "North Korea maintain[ed]
eight chemical factories, four research facilities, and six storage facilities
for mass producing chemical agents." [FN129] As outlined in a White Paper published by the South Korean
Ministry of Defense in 1999, North Korea is estimated to have some 5,000 pounds
of chemical weapons--some capable of reaching the *1408 southern tip of the
Korean Peninsula. [FN130] North Korea
has reportedly devoted significant resources to defensive measures for
protecting its population from the effects of chemical weapons, arguably to
provide greater latitude for their use in combat. [FN131]
On January 29, 2002, just four months after
the September 11th attacks on New York and the Pentagon, President George W.
Bush issued his State of the Union address setting forth, inter alia, his
administration's two objectives in the war on terror: (1) to "shut down
terrorist camps, disrupt terrorist plans, and bring terrorists to
justice;" [FN132] and (2) to "prevent the terrorists and regimes who
seek chemical, biological or nuclear weapons from threatening the United States
and the world." [FN133] In his
discussion of the second objective, President Bush referred to the three States
at the top of his list of "regimes that sponsor terror [and threaten]
America or our friends and allies with weapons of mass destruction," as an
"axis of evil." [FN134]
North Korea was named first, described by
President Bush as a "regime arming with missiles and weapons of mass
destruction;" next came Iran, which "aggressively pursues these
weapons and actively exports terror;" and last Iraq, a "regime [that]
has *1409 plotted to develop anthrax, and nerve gas, and nuclear weapons for over
a decade." [FN135] President Bush
went on to outline the general strategies to be followed by the United States
against the threat posed by the axis of evil and States like them, including
the development and deployment of an effective missile defense to protect
American and its allies from attack and preemption. [FN136]
David Frum and Richard Perle in their recent
book, An End to Evil, make the case that North Korea--along with Iran, Libya,
Saudi Arabia and Syria--are "terrorist states," requiring aggressive
action by the United States if it is to win the war on terror, and "we
don't have much time." [FN137] Frum and Perle support the approach of
preemptive attack followed by the current Bush administration. [FN138] Pursuant to this approach, which is stated
to be proven by our experience with bin Laden, they contend that, "the
responsible thing to do when confronted by a foreign threat is to act when we
can, and the earlier the better." [FN139]
They state:
*1410 Even if we could predict dangers more accurately than we
can, what benefit do we gain from waiting for a threat to become more
imminent? Why let an enemy grow
stronger unhindered? By waiting until
the last minute, we forfeit the initiative.
We cast away the opportunity to act at a time and place of our choosing
and gamble our security on future circumstances that may or may not be
favorable to us. Quite frequently, the
real motive of those who advocate delay is the hope that if we postpone action,
somehow the threat will disappear on its own.
This isn't policy. It's fantasy.
[FN140]
According to Frum and Perle, it is time for
the United States to use "stronger medicine" against North Korea.
[FN141] They propose various measures
as part of a decisive action by the United States to stop North Korea's attempt
to go nuclear, including: (1) a comprehensive air and naval blockade of North
Korea; [FN142] (2) an accelerated redeployment of U.S. ground troops on the
Korean Peninsula (which has already begun); [FN143] and (3) the development of
detailed plans for a preemptive strike against North Korea's nuclear
facilities. [FN144] Their stated hope
is that a *1411 credible build-up by the United States for a possible strike
against North Korea will prompt China to assert pressure on North Korea to
bring it into line. [FN145] Following
such an approach, the authors project in time "all of Korea will be united
in liberty." [FN146]
D. U.S.
Provocations According to North Korea
North Korea claims that the United States has
nuclearized the Korean Peninsula and is pursuing aggressive policies throughout
the world. [FN147] North Korea contends that, since the signing of the
Armistice Agreement, the United States has subjected North Korea to persistent
and direct nuclear threats, turning "South Korea into a nuclear base [that
is] a direct and crucial threat to peace on [the Korean Peninsula and
Asia]." [FN148]
North Korea asserts that the United States
introduced nuclear weapons and related missiles and artillery systems into the area
in the 1950's after the Armistice Agreement, and readied its combat forces in
the area to wage atomic warfare. [FN149]
This made South Korea one of the most substantial U.S. bases for forward
deployed nuclear weapons in the world. [FN150]
North Korea points to the fact that, on July
15, 1957, U.S. Army officials announced that combat forces would be capable of
waging an atomic war from South Korea, and that in 1958, the United States
announced and displayed its missile and artillery systems deployed in South
Korea. [FN151] North Korea states that
by 1970 the United States revealed during Congressional defense *1412 budget
meetings that over 1,000 nuclear weapons and 64 aircraft loaded with nuclear
weapons were deployed in South Korea. [FN152]
Further, it points to the U.S. Defense Department announcement in 1985
of the deployment of a nuclear missile battalion in South Korea, the first such
overseas base outside of Europe. [FN153]
North Korea contends that it has objected to
the U.S. nuclearization of the Korean Peninsula [FN154] and has engaged in
"consistent efforts at denuclearization." [FN155] As discussed above, North Korea has further
alleged in recent years that the United States is threatening North Korea, such
that North Korea needs a nuclear deterrent.
Interestingly, North Korea does not appear to have threatened the use of
chemical or biological weapons against the United States, but instead claims
that the U.S. allegation that North Korea possesses such weapons is similar to
the United States' insistence on North Korea's possession of nuclear weapons,
simply "part of their (the United States') moves to stifle and
isolate" North Korea. [FN156]
E. U.S.
Justification of its 2003 Attack on Iraq
Prior to the First Gulf War, the United
States had a close relationship with Saddam Hussein and his regime.
[FN157] During the 1980's, the United
States supplied Iraq with substantial military supplies and other aid. [FN158]
The United States knew during this period
that Iraq had chemical weapons and was using them against Iran and against
Iraq's rebelling Kurds, but that did not appear to affect U.S. support. *1413[
FN159] It did not prevent the United
States from providing Iraq with intelligence, planning information, bomb-assessments,
and other crucial military information as to Iran. [FN160] Donald H. Rumsfeld,
as a special envoy of the Reagan administration, traveled to Iraq in 1984 to
improve U.S. ties with President Saddam Hussein despite his use of chemical
weapons. [FN161]
The Reagan administration issued a public
condemnation of Iraq's already verified "almost daily" use of
chemical weapons against Iran and Kurdish rebels on March 5, 1984. [FN162] However, days later, Secretary of State,
George P. Schultz reportedly met with Iraqi diplomat, Ismet Kittani, to soften
the blow and bolster the American relationship with Iraq, including business
interests, Middle East diplomatic objectives, and a shared interest in
preventing an Iranian victory. [FN163]
In 1986, the U.N. Security Council issued a
statement condemning Iraq's use of chemical weapons in the war, [FN164] but the
United States continued to support Baghdad militarily and politically.
[FN165]
In the days leading up to Iraq's 1990
invasion of Kuwait, *1414 U.S. Ambassador April Glaspie, according to Iraqi
transcripts, told Hussein that the United States "[has] no opinion on the
Arab-Arab conflicts, like your border disagreement with Kuwait."
[FN166] The State Department did not
confirm the accuracy of the Iraqi transcripts, but also did not dispute
Glaspie's statement, [FN167] stating that Glaspie had warned against rash
actions regarding Kuwait. [FN168]
In commencing the 2003 war against Iraq, the
United States offered the following legal justifications: (1) that Iraq was in
breach of U.N. Security Council Resolutions by continuing to seek and develop
chemical, biological, and nuclear weapons, and prohibited long-range missiles;
[FN169] (2) that Iraq was in breach of cease-fire conditions agreed to at the
end of the first Gulf War, including its purported retention of WMDs that it
had agreed not to develop or possess; [FN170] (3) that Iraq threatened U.S.
security by aiding and harboring international terrorist organizations that
threatened the United States; [FN171] (4) that members of al Qaida are known to
be in Iraq; and (5) that the regime of Saddam Hussein had brutalized the Iraqi
people, committing gross human rights violations and crimes against humanity.
[FN172]
*1415 In an interview with the CBS program 60
Minutes to promote the book, The Price of Loyalty, Paul H. O'Neill, President
George W. Bush's first Treasury Secretary, stated that President Bush had been
focused on removing Saddam Hussein from power in Iraq from the start of his
administration. [FN173] According to
O'Neill, "From the very beginning, there was a conviction that Saddam
Hussein was a bad person and that he needed to go." [FN174] According to the book, O'Neill was surprised
that Iraq was on the top of the agenda at the very first National Security
Council meeting held by President Bush, on January 30, 2001. [FN175] At the second meeting, of which Saddam
Hussein was also a primary topic, Secretary of Defense Donald Rumsfeld spoke of
how removing Saddam Hussein would "demonstrate what U.S. policy is all
about." [FN176]
President George W. Bush was also apparently
influenced in his desire to make war on Iraq by the fact that Iraqi officials
had allegedly participated in a 1993 plot to assassinate his father, President
George H.W. Bush. [FN177] The current President Bush had repeatedly referred to
the alleged Iraqi assassination plot against his father as part of his basis
for the recent war on Iraq. [FN178]
While speaking before the U.N in September 2002, he made note of the
plot to kill a former U.S. president, though he omitted any reference to his
father's name. [FN179] Also, while
speaking in Houston at a fund-raiser, President Bush offered his usual *1416
complaints against Iraq in discussing the threat posed by Saddam. [FN180] He then stated that much of Saddam's hatred
was directed at the United States, adding: "After all, this is the guy who
tried to kill my dad." [FN181]
It was reported on November 7, 2003 that in
the days before the U.S. attack on Iraq in 2003, Iraq contacted the United
States, seeking to avert war. [FN182]
Officials of the Iraqi regime, including the Chief of Iraqi
Intelligence, dispatched Imad Hage, a Lebanese-American businessman, to meet
with Richard Perle as an intermediary for the U.S. Defense Department, with a
message that Iraq no longer had weapons of mass destruction and was prepared to
permit American troops and experts to carry out their search. [FN183] Through
Hage, Iraq also offered to turn over a man being held in Baghdad who was
accused of being involved with the 1993 World Trade Center bombing.
[FN184] Hage, based on some six
meetings with senior Iraqi intelligence officials, believed that the Iraqis he
spoke to were desperate to avoid war [FN185] and conveyed this impression to
the Defense Department. [FN186] Perle contacted the CIA to get their approval
to meet with the Iraqis, but the CIA did not want to pursue this channel and
conveyed to Perle, "Tell them that we will see them in Baghdad."
[FN187]
More than a year after the U.S.-led 2003
invasion of Iraq, the United States has still not found any weapons of mass
destruction in Iraq. [FN188] While
Secretary of Defense Donald Rumsfeld purported to believe that weapons of mass destruction
will turn up, [FN189] Secretary of State Colin Powell reportedly stated,
"We *1417 may not find stockpiles." [FN190] Secretary Powell, at a January 8, 2004 news conference at the
State Department, further stated that he had seen no "smoking gun [or]
concrete evidence" of ties between former Iraqi President Saddam Hussein
and al-Qaida. [FN191]
A somewhat softened enunciation of the second
Bush administration's justifications was recently given by President Bush to
host Tim Russert on NBC's Meet the Press on February 8, 2004. President Bush stated that the war against
Iraq to remove Saddam Hussein was justified even in the absence of weapons of
mass destruction because Mr. Hussein was "a dangerous man [who] . . . had the ability to make weapons, at the
very minimum." [FN192]
F. U.S.
Position as to Nuclear Weapons in South Korea
Despite the Korean War, the U.S. nuclear
presence in the Pacific was modest until 1952 when the Joint Chiefs proposed
the introduction of additional weapons, fearing that if hostilities broke out a
subsequent communication breakdown may make emergency transfers of weapons
impossible. [FN193] By 1967 the United
States reportedly had more than 800 nuclear weapons in South Korea, [FN194] by
1977 it had roughly 600, and by 1985 it had 151. [FN195] During 1991, the United States professedly
removed its nuclear weapons from South Korea, which by then was the last
forward base in the Pacific for U.S. nuclear weapons. [FN196] The current Bush administration in its 2002
nuclear posture review nonetheless affirmed its commitment to the potential use
of nuclear *1418 weapons for the defense of South Korea. [FN197] As recently as November 2003, Secretary of
Defense Donald Rumsfeld stated that the U.S. commitment to defend South Korea
from attack includes "the continued provision of a nuclear umbrella."
[FN198]
In a broader sense, the physical location of
the United States' nuclear weapons and other military assets would seem to be
of limited significance, given the size of the United States' nuclear arsenal
and its ability to deliver its nuclear weapons across the world within very
short time frames, [FN199] as well as its extensive military assets in the
Korean area. [FN200]
VI. THE NORTH KOREAN STRATEGIC POSITION
VIS-A-VIS THE UNITED STATES
A. Economic
and Political Position
North Korea is one of the most unfortunate
places on earth. Its economy is dismal, its people malnourished, its political
structure repressive, and its sparse resources largely spent on the military.
North Korea's gross domestic product for 2002
is estimated at U.S.$22.26 billion, [FN201] compared with U.S.$941.5 billion
[FN202] for South Korea. North Korea spent some U.S.$5.2 billion in 2002 on the
military, [FN203] as compared to South Korea's military expenditures of U.S.$13
billion in 2002. [FN204]
During the 1990s, floods decimated North
Korean food supplies,*1419 inducing widespread famine, [FN205] as political
conditions amplified the shortages through inadequate distribution networks.
[FN206] Two million North Koreans,
approximately 10% of the population, died from starvation in the mid-1990s.
[FN207] North Korea's domestic needs
became desperate, as it largely lost the support of its former Communist
allies, Russia and China. [FN208]
One of the last remaining Stalinist states of
the Cold War, North Korea is dictatorial, centrally controlled and
hierarchical. The international
community has condemned North Korea's human rights record based on reports of
torture, arbitrary detention and imprisonment, and suppression of freedoms of
expression, religion, and movement. [FN209]
Scholars have characterized North Korea's economic policies as crimes
against humanity for the systematic and widespread hunger they perpetuate.
[FN210]
In 2003, when North Korea announced plans to
build a nuclear deterrent force if the United States maintained its hostile
policy, North Korea indicated that it would be able to do so at a lower price
than for conventional weapons. It stated
that its deterrent would be "capable of neutralizing any sophisticated and
nuclear weapons with less spending." [FN211]
B. North
Korea's Conventional Weapons
North Korea, a militarized State that devotes
a substantial *1420 portion of its economy to the military, has an army of more
than one million soldiers, [FN212] including 120,000 special operation forces,
[FN213] and reserve forces of six million soldiers. [FN214] Two-thirds of its troops are reportedly
within sixty miles of the demilitarized zone. [FN215]
The North Korean military reportedly has some
11,000 forward deployed artillery pieces capable of hitting South Korea,
[FN216] 500 170-millimeter guns and 200 multiple-launch rocket systems within
range of Seoul, [FN217] along with air defense weapons. [FN218] The artillery pieces are largely hidden in
caves and the missiles are on mobile launchers. [FN219] North Korea also has an Air Force with over
1700 aircraft and a Navy with over 800 ships [FN220] and 62 submarines. [FN221]
U.S. characterizations of the North Korean
military forces *1421 are mixed. The U.S. military has stated that North Korea
has the largest submarine and artillery forces in the world [FN222] and a
"very credible conventional force." [FN223] In a report to Congress in 2000, the Secretary of Defense
characterized the North Korean military threat as "formidable" and
noted that its asymmetric forces are "cause for concern."
[FN224]
At the same time, the United States has noted
that the North Korean military has been severely affected by the country's
economic problems, such that its equipment is aging and its military production
scant. [FN225] The U.S. military has
noted that much of the North Korean's military equipment is technologically
antiquated--particularly that of its Air Force and Navy, leaving the army as
the major threat. [FN226] U.S. General
Leon LaPorte, Commander of U.S. forces in South Korea, has stated that
"[m]uch of their equipment is aged, but they have a lot of it."
[FN227] Some commentators doubt the
effectiveness of North Korea's artillery. [FN228]
Some commentators have estimated that North
Korea's weapons systems are less extensive and reliable than Iraq's before the
1991 Gulf War. [FN229] North Korea
reportedly does not have adequate amounts of oil to support its mechanized
units, and even less to conduct proper training exercises. [FN230] Most of the
artillery pieces that North Korea possesses are not in range of Seoul, and the
missiles it has that are capable of reaching the capital are not believed to be
accurate. [FN231] *1422
C. North
Korea's Chemical and Biological Weapons
North Korea is believed to have chemical and
biological weapons in significant numbers.
It also has the missiles with which to deliver them [FN232] and its
military doctrine reportedly instructs the use of chemical weapons as standard
munitions. [FN233] North Korea has also
reportedly devoted significant resources to defensive measures for protecting
its population from the effects of chemical weapons, ostensibly to provide
greater latitude for their use in combat. [FN234] It is believed that North Korea is likely to use chemical weapons
in a conflict with South Korea. [FN235]
North Korea is believed to have "a
sizable stockpile of chemical weapons" and to have "achieved the
capability to manufacture large quantities of nerve, blister, choking, and
blood agents." [FN236]
Specifically, North Korea is known to have "[t]ons of mustard gas
and sarin," and unknown quantities of blood agents, choking gases, riot
control agents and VX. [FN237] U.S.
intelligence believes that North Korea possesses, at the very least, between
180 and 250 tons of chemical weapons. [FN238]
The Nuclear Threat *1423 Initiative cites official reports and testimony
from North Korean defectors and stipulates that North Korea may have as much as
2500 to 5000 tons of chemical weapons. [FN239]
North Korea is also believed to have
biological weapons, including anthrax, cholera, and plague. [FN240] In May 1996, South Korean Foreign Minister
Yu Chong-ha reported that North Korea possessed approximately 5000 tons of
biological and chemical weapons. [FN241]
The Federation of American Scientists, noting North Korea's extensive
production facilities, stated that this "estimate may constitute the low
end of the actual stockpile." [FN242]
Because of North Korea's many missiles and
doctrine that instructs the use of chemical weapons as standard munitions, U.S.
military planners regard North Korea as a significant asymmetrical threat.
[FN243]
D. North
Korea's Missiles
North Korea has numerous short-range missiles
and a limited number of intermediate range missiles capable of delivering
chemical, biological, and nuclear weapons.
North Korea appears to be making progress in developing long-range
missiles for the delivery of such weapons.
It has one of the "largest ballistic missile forces in the Third
World" with over thirty-six launchers and 700 missiles (by a 1999 report)
in its arsenal. [FN244]
North Korea reportedly has some 500
short-range missiles, including the Scud-B, Hwasong 5 and 6. [FN245] The Hwasong 5 has a range of 320 kilometers
while carrying a 1,000 kilogram warhead. [FN246] The Hwasong 6, thanks to a lighter warhead and special stainless
steel imported from Russia, has a range up to 500 *1424 kilometers while
carrying a payload of up to 770 kilograms (1,700 pounds). [FN247] These missiles are variants of the Scud
missile [FN248] and are regarded as thoroughly tested and reliable. [FN249]
North Korea's short range missiles can reach all of South Korea with nuclear,
chemical or biological weapons. [FN250]
North Korea's medium range missile is the
No-Dong. In development since 1988 and
successfully tested in 1993, the No-Dong is designed to strike regional
targets, e.g., U.S. bases in Japan, to develop a base ballistic missile system
that can be used as a first stage for further developments, and to carry a
first generation nuclear weapon. [FN251]
North Korea reportedly possesses between 50 and 100 No-Dong's, [FN252]
capable of carrying a 1,200 kilograms warhead 1,350 kilometers or a 1,000
kilograms warhead 1,500 kilometers. [FN253]
These missiles, capable of carrying chemical, biological, and nuclear
warheads, can reach targets in Japan, China, and Russia. [FN254]
North Korea has been developing long-range
missiles, the Taepo-dong 1 and Taepo-dong 2, since the early 1990s.
[FN255] North Korea is believed to have
made the Taepo-dong 1 "operational" by 2000, [FN256] and may have
built between one and ten by 1999. [FN257]
*1425 The Taepo-dong 1 is designed to have a
range of 1,500 to 2,500 kilometers carrying an estimated payload of 1,000 to
1,500 kilograms (2,200 to 3,300 pounds). [FN258] These missiles are potentially capable of reaching all U.S. bases
in East Asia. [FN259] To the surprise
of the U.S. intelligence community, [FN260] North Korea in 1998 launched a
Taepo-dong 1 missile over Japan, with the intent of putting North Korea's first
satellite-- the Kwangmyongsong 1--into orbit. [FN261] The third stage of the missile suffered technical difficulties
and did not insert the satellite into orbit. [FN262] North Korea, however, did
not acknowledge this failure, and contends it was a successful launch, stating
that "our scientists and technicians succeeded in launching its first
satellite into orbit with multi-staged delivery rockets." [FN263]
The Taepo-dong 2 missiles are of concern to
the United States because of the possibility that they are capable of reaching
U.S. land. Media reports cite U.S.
intelligence estimates that provide that, even without further flight tests,
North Korean ballistic missiles would be able to strike Alaska, Hawaii, and the
U.S. west coast. [FN264] The Taepo-dong
2 is reportedly designed to carry a warhead of 1,000 to 1,500 kilograms a
distance of 4,000 to 8,000 kilometers. [FN265]
Currently North Korea is not believed to have a functional version of
the Taepo-dong 2. [FN266]
The accuracy of missiles is generally stated
in terms of circular error probability or "CEP," the radius of the
circle drawn around the target in which, on average, half of the re-entry
vehicles fired at the target will fall. [FN267] Of North Korea's short range missiles, the Scud-B has a CEP of
450 meters, [FN268] the Hwasong 5 a CEP of approximately 500-800 meters,
[FN269] and the Hwasong 6 a *1426 CEP of 50 meters. Analysts are uncertain of the No-Dong's CEP; with GPS guidance it
could be as small as fifty meters, but analysts believe that at the extremities
of its range, the No-Dong has a CEP of as high as 2,000 to 4,000 meters.
[FN270] As noted, North Korea does not
have completely functioning versions of the Taepo-dong one or two in its
possession. [FN271] The CEP of these
weapons is not known, although they have been characterized as
"poor." [FN272]
E. South
Korean Economic, Political, and Military Capability
South Korea is in far better shape than North
Korea economically, politically, and militarily. Its economy is booming, [FN273] its political system is
effectively functioning in a democratic fashion, [FN274] and its military,
although substantially smaller than North Korea's, is strong and
well-supplied. In addition, it is
strongly allied with the United States, enjoying the U.S. economic and military
umbrella.
South Korea can mobilize up to 4,500,000
troops, all excellently supplied with modern equipment, including more than
*1427 1,500 strike aircraft and 3,000 tanks. [FN275] The South Korean military also has two surface to surface missile
battalions and 5,300 mortars. [FN276]
F. U.S.
Available Forces
The United States has a significant presence
in the Pacific region. The Army has
37,000 troops in South Korea and extensive equipment in the country, including
Patriot missile batteries, Apache helicopter squadrons, a mechanized infantry
brigade, an air assault brigade, and various other units. [FN277]
Aside from the 37,000 troops that patrol the
DMZ, the United States has a significant presence in the Pacific region. In the vicinity of North Korea, the main
U.S. naval presence is the 7th Fleet, the largest of all forward-deployed
fleets in the Navy. [FN278] The 7th
Fleet fluctuates between forty and fifty ships, 200 aircraft and generally has
about 20,000 Naval and Marine personnel attached to it. [FN279] The naval vessels generally include one to
two aircraft carriers, three to five Aegis guided-missile cruisers, and five to
ten destroyers and frigates. [FN280]
The U.S. Air Force also has a significant
presence in the Pacific with the Seventh Air Force located in Korea and the
Fifth in Japan. [FN281] Assigned to the Seventh Air Force are the Fifty-first
and Eighth Fighter Wings, with 117 planes supported by 8,300 air force personnel.
[FN282] The Fifty-first Fighter Wing
flies the A-10 [FN283] and three squadrons of F-16 fighter aircraft.
[FN284] Overall, the *1428 Pacific
command has 45,000 military and civilian personnel with approximately 300
fighter and attack aircraft under its control, with additional major bases
located in Hawaii and Alaska. [FN285]
In 1991, the first Bush administration
decided to withdraw U.S. nuclear weapons from South Korea, both as part of a
larger effort to reduce the number of tactical nuclear weapons deployed abroad
and as a step towards denuclearization of the Korean Peninsula. [FN286] This withdrawal was completed by the early
1990's, and since then the United States has pledged to use its other nuclear
forces, including primarily ballistic missile submarines, to protect South
Korea from any nuclear threat. [FN287]
In a world where U.S. high speed bombers can
take off from bases in the U.S., drop their bombs virtually anywhere in the
world and return to base, where gigantic aircraft carriers can quickly bring
large numbers of troops and extensive equipment to areas where they are needed,
where missiles can traverse the world in a matter of minutes, the location of
military assets seems secondary to a considerable extent. The result is that U.S. forces throughout
the world are of significance to the strategic situation on the Korean
Peninsula.
VII. OUTCOME OF A FUTURE WAR IN KOREA
North Korea,
whatever its economic and polities infirmities, is a formidable military
power. With over seven million
available troops, 120,000 special operation forces, 11,000 forward deployed
artillery tubes, 500 170-millimeter guns, 200 multiple-launch rocket systems,
air defense weapons, mobile launchers, cave bases, 1,700 aircraft, 800 ships, 62
submarines and other military assets, North Korea has a formidable conventional
military force. [FN288]
With the addition of its apparent supplies of
chemical, biological, and nuclear weapons and the means to deliver them at
least at short and intermediate ranges, North Korea would also *1429 appear to
have a potent non-conventional deterrent as well as war-fighting capability.
[FN289]
North Korea's military capabilities threaten
extraordinary damage on South Korean and U.S. forces in the South. Military planners have projected that in the
first three months of fighting following a North Korean invasion of the South,
U.S. and South Korean forces would suffer between 300,000 to 500,000
casualties, with hundreds of thousands more civilians killed. [FN290] Doug Bandow of the Cato Institute has cited
estimates that over 1,000,000 total casualties could be expected from a
conflict with North Korea. [FN291] The
U.S. military's plan for the region, Oplan 5027, envisions massive North Korean
artillery and rocket bombardments of Seoul, striking with up to 500,000 shells
a hour, in an effort to turn the city into a "sea of fire." [FN292]
Overall, experts believe that efforts by the United States and South Korea to
blunt an initial North Korean assault would be unable to prevent North Korea
from inflicting an unacceptable level of damage on South Korea and U.S. forces
in the area. [FN293]
Nor could the United States count on being
able to preemptively destroy the bulk of North Korea's military assets--including
missiles, artillery, and ground forces--since those assets are so numerous.
[FN294] Many of North Korea's artillery pieces are hidden in caves and hence
difficult to destroy. [FN295] North
Korean missiles are also mounted on mobile launchers, making them difficult to
locate and strike. [FN296] North Korea
would likely use non-persistent chemical agents to facilitate penetration of
the South Korean/U.S. defenses around the demilitarized zone and *1430 persistent
chemical agents against South Korean and U.S. troops and other assets in rear
areas. [FN297]
While recent U.S. military actions have
heavily relied on air power, there appeared to be a risk that bad weather and difficult
terrain on the Korean Peninsula could hamper U.S. air power, based upon
experience in the first Gulf War where laser-guided bombs were severely
affected by bad weather and inclement battlefield conditions such as smoke.
[FN298] However, the subsequent
emergence of Joint Direct Attack Munitions ("JDAM") apparently has
virtually nullified the effects of bad weather, due to their reliance on the
Global Positioning System ("GPS") and an inertial navigation system
("INS"). [FN299] In addition,
flight trials of an Inertial Terrain-Aided Guidance system demonstrate the
ability of bombs to determine the profile of the ground from high altitudes and
match this with stored three dimensional maps in real time, providing a CEP of
three meters. [FN300]
Nor do U.S. military planners believe the
United States could count on being able to destroy or neutralize the North
Korean nuclear capability. Exposed
North Korean nuclear facilities would be vulnerable to attack by cruise
missiles and stealth bombers, despite significant North Korean air defenses.
[FN301] However, North Korea has
concealed and hardened a number of its nuclear facilities [FN302] and would
have a range of retaliatory options-- from conventional attacks to the use of
chemical, biological, and to the extent they have them, nuclear weapons.
[FN303]
Most analysts believe that, while a war with
North Korea would involve substantial losses, the United States would
ultimately win without the need to resort to nuclear weapons. [FN304] *1431 The
timetable for getting substantial additional U.S. forces into the region is
relatively short. [FN305] In addition,
South Korea has recently embarked on its own program to develop missiles with a
range of up to 300 kilometers, after the United States agreed to the South
Korean withdrawal from the Missile Technology Control Regime. [FN306]
Economically, the cost of the war would be
tremendous. The South Korean economy
would likely be devastated, making it impossible to rely on Korean
reunification as the cure for the power vacuum in North Korea at the end of any
conflict. [FN307] The effects on the
South Korean economy would likely have reverberating effects throughout the
world. [FN308]
While there is no doubt a limit to the extent
to which the U.S. military can be stretched, it seems likely that the military
could handle a war with North Korea even while engaged in the tail end of ones
with Afghanistan and Iraq. [FN309]
*1432
A.
International Law Applicable to the Use of Nuclear Weapons [FN310]
The United States acknowledges the
applicability of the law of armed conflict, including the rules of necessity,
proportionality, and discrimination, to the use of nuclear weapons. However, when it comes to the application of
such law to nuclear weapons, the United States distorts the facts as to the
effects of nuclear weapons and misstates the law.
If the facts and law were as stated by the
United States, the use of nuclear weapons would indeed be lawful in many
circumstances. Based upon a true
statement of the facts and law, the use of nuclear weapons is unlawful in
virtually all circumstances in which such weapons might actually be used.
I first review the United States' general
acknowledgment of the applicable rules of law and then demonstrate the United
States' distortion of the facts and law in applying the law. I then apply the law, as acknowledged by the
United States, to the true facts as to nuclear weapons.
B. U.S.
Acknowledgment of the Applicability of the Law of Armed Conflict to Nuclear
Weapons [FN311]
The U.S Constitution provides that treaties
entered into by *1433 the United States are "the supreme Law of the
Land." [FN312] The Air Force
Manual on International Law notes that "state and federal courts have
declared international law to be part of the law of the land."
[FN313] The Air Force Manual on
International Law states that the United States is bound to follow customary
international law "not because a treaty requires it, but because
international law imposes the obligation on all States." [FN314]
The United States acknowledges that the use
of nuclear weapons is subject to the law of armed conflict, including the rules
of proportionality, necessity, and discrimination, moderation, civilian
immunity, neutrality, and humanity. [FN315]
The Naval/Marine Commander's Handbook states
that the use of nuclear weapons
"against enemy combatants and other military objectives" is
subject to the following principles:
the right of the parties to the conflict to adopt means of
injuring the enemy is not unlimited; it is prohibited to launch attacks against
the civilian population as such; and the distinction must be made at all times
between combatants and noncombatants to the effect that the latter be spared as
much as possible. [FN316]
The Naval/Marine Commander's Handbook
describes these rules as
"fundamental principles" of the law of armed conflict.
[FN317]
*1434 The Air Force Commander's Handbook,
while stating that the United States "takes the position" that the
use of nuclear weapons is not unlawful, confirms that such use is
"governed by existing principles of international law." [FN318]
The Air Force Manual on International Law,
while stating that "[t]he use of explosive nuclear weapons, whether by
air, sea or land forces, cannot be regarded as violative of existing
international law in the absence of any international rule of law restricting
their employment," [FN319] similarly recognizes that such use is subject
to the principles of the law of war generally. [FN320] The Air Force Manual on International Law
states that "any weapon may be used unlawfully, such as when it is
directed at civilians and not at a military objective" [FN321] or "to
inflict unnecessary suffering." [FN322]
The Air Force Manual on International Law
states that, in comparing the military advantages to be secured by the use of a
new weapon to the effects caused by the weapon, the following questions are
relevant:
(l) [C]an the weapon be delivered accurately
to the target;
(2) [W]ould its use necessarily result in
excessive injury to civilians or damage to civilian objects, so as to be termed
an "indiscriminate weapon;"
(3) [W]ould its effects be uncontrollable or
unpredictable in space or time as to cause disproportionate injury to civilians
or damage to civilian objects; and
(4) [W]ould its use necessarily cause
suffering excessive in relation to the military purpose which the weapon serves
so as to violate that prohibition. [FN323]
The Army, in its International Law Manual,
states that the "provisions of international conventional and customary
law that may control the use of nuclear weapons" include:
*1435 (l) Article 23(a) of the Hague
Regulations prohibiting poisons and poisoned weapons,
(2) [T]he Geneva Protocol of 1925 which
prohibits the use not only of poisonous and other gases but also of 'analogous
liquids, materials or devices,'
(3) Article 23(c) of the Hague Regulations
which prohibits weapons calculated to cause unnecessary suffering, and
(4) [T]he 1868 Declaration of St. Petersburg
which lists as contrary to humanity those weapons which 'needlessly aggravate
the sufferings of disabled men or render their death inevitable.' [FN324]
VIII. RULES OF PROPORTIONALITY, NECESSITY,
AND DISCRIMINATION
A. Rule of
Proportionality
The rule of proportionality prohibits the use
of a weapon if its probable effects upon combatant or non-combatant persons or objects
would likely be disproportionate to the value of the anticipated military
objective.
The Air Force Manual on International Law
states the rule against attacks "which may be expected to cause incidental
loss of civilian life, injury to civilians, damage to civilian objects . . .
which would be excessive in relation to the concrete and direct military
advantage anticipated." [FN325] The Naval/Marine Commander's Handbook
recognizes the proportionality requirement as a customary rule of international
law and describes the requirement as codified in the prohibition by Additional
Protocol I of attacks causing excessive damage. The handbook states that it is not unlawful to cause
"incidental injury or death to civilians, or collateral damage to civilian
objects, during an attack upon a legitimate military objective," but that
such effects "must not . . . be excessive in light of the military
advantage anticipated by the attack." [FN326] *1436
B. Rule of
Necessity
The rule of necessity provides that, in
conducting a military operation, a State, even as against its adversary's
forces and property, may use only such a level of force as is
"necessary" or "imperatively necessary" to achieve its
military objective, and that any additional level of force is prohibited as
unlawful. The State must have an
explicit military objective justifying each particular use of force in armed
conflict and there must be a reasonable connection between that objective and
the use of the particular force in question.
If a military operation cannot satisfy this requirement, the State must
use a lower level of force or refrain from the operation altogether.
This is a rule of customary international law
memorialized in numerous conventions.
Violations of this rule served as the basis of convictions at
Nuremberg. It is a rule of reason,
requiring that a judgment be made as much in advance as possible by
appropriately responsible decision-makers in light of the reasonably available
facts. The State, in planning its military
operations, is required to exercise all reasonable precautions to assure that
the level of force to be used is within the scope of this rule. The protection of the rule runs to combatant
as well as non-combatant persons and objects.
The rule of necessity precludes the use of a
particular weapon if a less destructive weapon could reasonably be expected to
achieve the objective, and outlaws the use of a weapon not capable of being
regulated or not in fact regulated by the user. If the military objective is to take out a particular bridge and
this can be accomplished through a direct attack on the bridge, it is unlawful
to launch a massive attack against the entire county to take out the
bridge. If the military objective could
be achieved with conventional weapons, the use of nuclear weapons, with the
appreciably higher likely levels of destruction, *1437 would generally be
unlawful. If, on the other hand, it
were necessary to destroy the county to take out the bridge, the necessity
requirement would ostensibly be met if the other prerequisites were present,
but, even then, if taking out the bridge had minor military value compared to
the level of resultant devastation, the proportionality requirement would not
be met and the strike would be prohibited.
The United States recognizes this rule. The Naval/Marine Commander's Handbook states
that the law of war seeks to prevent "unnecessary suffering and
destruction," and thereby permits "only that degree and kind of force
. . . required for the . . . partial or complete submission of the enemy with a
minimum expenditure of time, life and physical resources." [FN327] The Handbook repeats that the employment of
"any kind or degree of force not required" for that purpose "is
prohibited" [FN328] and quotes with approval the statement in The Hostage
Case [FN329] that the destruction of property in war "to be lawful must be
imperatively demanded by the necessities of war" and that there must be
some "reasonable connection between the destruction of property and the
overcoming of the enemy forces." [FN330]
The Handbook emphasizes that the protection of this rule extends to both
combatants and noncombatants. [FN331]
*1438
C. Rule of
Discrimination
The rule of discrimination prohibits the use
of a weapon that cannot discriminate in its effects between military and
civilian targets. This is a rule
designed to protect civilian persons and objects. The law recognizes that the use of a particular weapon against a
military target may cause unintended collateral or incidental damage to
civilian persons and objects and permits such damage, subject to compliance
with the other applicable rules of law, including the principle of
proportionality. However, the weapon must
have been intended for--and capable of being controlled and directed against--a
military target, and the civilian damage must have been unintended and
collateral or incidental.
Thus, if the weapon or its effects were not
susceptible of being controlled and directed against a military target in the
first place, the resultant damage to civilian persons and objects would not be
unintended, collateral or incidental--and the use would be prohibited. Similarly, if the very purpose of the strike
was to put pressure on the adversary through attacks on its population, the
classic Cold War deterrence theory of "mutual assured destruction"
(or "MAD"), the strike would be unlawful.
The discrimination requirement is recognized
by the United States. The Air Force
Commander's Handbook states that a weapon is not unlawful "simply because
its use may cause incidental casualties to civilians, as long as those
casualties are not foreseeably excessive in light of the expected military
advantage," but that weapons that are "incapable of being controlled
enough to direct them against a military objective" [FN332] are
unlawful. The Air Force Manual on
International Law defines indiscriminate weapons as those "incapable of
being controlled, through design or function," such that they
"cannot, with any degree of certainty, be directed at military
objectives." [FN333]
The Naval/Marine Commander's Handbook states
that the law of war "is based largely on the distinction to be made
between combatants and noncombatants" [FN334] and hence prohibits making
*1439 noncombatants the "object of attack" [FN335] or targeting them
"as such [FN336] and requires that civilians be safeguarded against
"injury not incidental" to attacks against military objectives.
[FN337]
Two of the three "fundamental principles
of the law of war" identified by the Naval/Marine Commander's Handbook
focus upon the requirement of discrimination:
2. It is prohibited to launch attacks
against the civilian population as such.
3. Distinctions must be made between combatants
and noncombatants, to the effect that noncombatants be spared as much as
possible. [FN338]
The Naval/Marine Commander's Handbook states
that the foregoing points 2 and 3 were customary rules of international law
codified for the first time in Additional Protocol I, articles 51(2) and 57(1),
respectively. [FN339]
IX.
UNCONTROLLABILITY AS CONNOTING UNLAWFULNESS
The United
States recognizes that the rules of discrimination, necessity, and
proportionality prohibit the use of weapons whose effects cannot be controlled
by the user.
A.
Uncontrollability under Rule of Discrimination
The Air Force Commander's Handbook states
that weapons that are "incapable of being controlled enough to direct them
against a military objective" are unlawful. [FN340] The Air Force Manual on International Law
defines indiscriminate weapons as those "incapable of being controlled,
through design or function," such that they "cannot, with any degree
of certainty, be directed at military objectives." [FN341]
In its military manuals the United States has
acknowledged *1440 that the scope of this prohibition extends to the effects of
the use of a weapon. The Air Force
Manual on International Law states that indiscriminate weapons include those
which, while subject to being directed at military objectives, "may have
otherwise uncontrollable effects so as to cause disproportionate civilian
injuries or damage." [FN342] The
Air Force Manual on International Law states that "uncontrollable"
refers to effects "which escape in time or space from the control of the
user as to necessarily create risks to civilian persons or objects excessive in
relation to the military advantage anticipated." [FN343] It is noteworthy that this prohibition
encompasses the causing of risks, not just injury.
As a "universally agreed illustration of
. . . an indiscriminate weapon," the Air Force Manual on International Law
cites biological weapons, noting that the uncontrollable from such weapons
"may include injury to the civilian population of other states as well as
injury to an enemy's civilian population." [FN344] The Naval/Marine Commander's Handbook states
that such weapons are "inherently indiscriminate and uncontrollable."
[FN345]
The Air Force Manual on International Law
further cites Germany's World War II V-1 rockets, with their "extremely
primitive guidance systems" and Japanese incendiary balloons, without any
guidance systems. [FN346] The Manual
states that the term "indiscriminate" refers to the "inherent
characteristics of the weapon, when used, which renders [sic] it incapable of
being directed at specific military objectives or of a nature to necessarily
cause disproportionate injury to civilians or damage to civilian objects."
[FN347]
The Navy Judge Advocate General, in his legal
analysis of the lawfulness of the Trident I (C-4) Missile, stated that
"[i]ndiscriminate weapons are those which cannot be accurately directed at
military objectives or those the effects of the use which are so uncontrollable
as to necessarily cause disproportionate injury or damage to civilian persons
or objects." [FN348] *1441
B.
Uncontrollability under Rule of Necessity
The requirement that the level of force
implicit in the use of a weapon be controllable and controlled by the user is a
natural implication of the necessity requirement. If a State cannot control the level of destructiveness of a
weapon, it cannot assure that the use of the weapon will involve only such a
level of destructiveness as is necessary in the circumstances.
The Air Force Manual on International Law
recognizes as a basic requirement of necessity "that the force used is
capable of being and is in fact regulated by the user." [FN349]
C.
Uncontrollability under Rule of Proportionality
If the State using a weapon is unable to
control the effects of the weapon, it is unable to evaluate whether the effects
would satisfy the requirement of being proportionate to the concrete and direct
military advantage anticipated from the attack or to assure such limitation of
effects.
The Air Force Manual on International Law
notes that the requirement of proportionality prohibits "uncontrollable
effects against one's own combatants, civilians or property." [FN350]
X. U.S. DISTORTION
OF FACTS AND LAW IN APPLYING THE LAW OF ARMED CONFLICT TO NUCLEAR WEAPONS
Following
are what appear to be distortions of fact and law in the United States'
application of the law of armed conflict, including the rules of
proportionality, necessity, and discrimination, to the use of nuclear
weapons.
A. U.S.
Distortion 1: That Nuclear Weapons Cannot Be Per Se Unlawful
The U.S. position, as expressed before the
ICJ, is that there is no per se rule banning the use of nuclear weapons because
the United States has not consented to any such rule, and hence that each
contemplated use of such weapons must be evaluated on an ad hoc basis.
The United States argues that it is only
bound by conventional law specifically agreed to by the United States and
customary *1442 law established by the practice of the community of Nations,
including the Nations specially involved (according to the United States, the
nuclear powers), out of a sense of obligation.
The United States concludes that, since it has not agreed to a
convention specifically prohibiting the use of nuclear weapons and has not
refrained from their use out of a sense of obligation, such use cannot be per
se unlawful. [FN351]
Similarly, the Navy Judge Advocate General,
in his legal analysis of the lawfulness of the Trident I (C-4) Missile, stated
that the reality of "current state practice and the generally accepted
rule" is that to be unlawful, a specific weapon must be specifically
addressed as prohibited. [FN352]
This position is significant because it
serves to justify the possession and threatened use of nuclear weapons as a
general proposition and causes the possible use of the weapons to be inculcated
into the military's weapons acquisitions, training, and planning. [FN353] Given the fact that, in real world
situations, decisions as to the use of nuclear weapons would likely have to be
made upon extremely short notice, [FN354] ad hoc application of law to the use
of nuclear weapons effectively means that the law likely will not be applied in
any meaningful way in most situations of actual use. The U.S. policy of ad hoc legal evaluation is really a policy of
presumptive lawfulness. [FN355] Applied
to North *1443 Korea, this policy would ostensibly mean that it is perfectly
lawful for North Korea to pursue a nuclear program and to threaten to use, and
ultimately to use, such weapons in many circumstances.
The problem with the U.S. position is that it
overlooks the existence of other sources of international law, including
general principles of law. It ignores
the fact that the United States has recognized that the broad rules of the law
of armed conflict--such as the rules of proportionality, necessity, and
discrimination--apply to nuclear weapons [FN356] and that per se rules can
arise from them. [FN357]
Once the applicability of such rules is
acknowledged, the United States, like any other State, is bound by their
application regardless of whether it agrees with the particular application. Neither the consensual basis of
international law nor the principle of sovereignty limits the application of
established rules of law. If the use of
nuclear weapons is per se unlawful under those principles, the United States,
North Korea, any other State are subject to such unlawfulness fully as much as
if they had signed a convention or purposefully joined in the formation of
custom to that effect.
The Air Force Manual on International Law
states that the use of a weapon may be unlawful based not only on
"expressed *1444 prohibitions contained in specific rules of custom and
convention," but also on "those prohibitions laid down in the general
principles of the law of war." [FN358]
Similarly, in discussing how the lawfulness
of new weapons and methods of warfare is determined, The Air Force Manual on
International Law states that such determination is made based on international
treaty or custom, upon "analogy to weapons or methods previously
determined to be lawful or unlawful," and upon the evaluation of the
compliance of such new weapons or methods with established principles of law,
such as the rules of necessity, discrimination, and proportionality.
[FN359]
The Air Force Manual on International Law
notes that the International Military Tribunal at Nuremberg in the case of the
Major War Criminals found that international law is contained not only in
treaties and custom but also in the "general principles of justice applied
by jurists and practiced by military courts." [FN360]
The Air Force Manual on International Law
further states that the practice of States "does not modify" the
legal obligation to comply with treaty obligations since such obligations are
"contractual in nature." [FN361]
The Army's Law of Land Warfare states that
"[t]he conduct of armed hostilities on land is regulated by the law of
land warfare which is both written and unwritten." [FN362]
The United States recognizes
"analogy" as well as "general principles" as sources of the
law of armed conflict. The Air Force
Manual on International Law states:
The law of armed conflict affecting aerial
operations is not entirely codified.
Therefore, the law applicable to air warfare must be derived from
general principles, extrapolated from the law affecting land or sea warfare, or
derived from other sources including the practice of states reflected in a wide
variety of sources. [FN363]
The Air Force Manual on International Law
notes that per se *1445 unlawfulness is not limited to prohibitions established
in treaties or customary law:
[A] new weapon or method of warfare may be
illegal, per se, if it is restricted by international law including treaty or
international custom. The issue is resolved, or attempted to be resolved, by
analogy to weapons or methods previously determined to be lawful or unlawful.
[FN364]
Based on the foregoing, it seems clear that
the use of nuclear weapons can be unlawful per se regardless of whether there
is a treaty or custom establishing such unlawfulness.
Assuming that the use of nuclear weapons may
be per se unlawful under the rules of proportionality, necessity, and
discrimination, the question arises as to what the criteria are for the
application of a per se rule. The United States contended, [FN365] in a position
that the ICJ ostensibly accepted sub silentio, [FN366] that 100%
illegality--the unlawfulness of all uses of nuclear weapons--would be necessary
before a rule of per se illegality could arise. However, the Court's approach may have been affected by the
wording of the question referred to it by the General Assembly: "Is the
threat or use of nuclear weapons in any circumstance permitted under
international law?" [FN367]
The law on this point does not appear to be
settled. Opinions of individual judges
of the ICJ on the issue differed greatly.
Judge Higgins in her dissenting opinion assumed that 100% certainty must
be present for there to be per se illegality:
I do not . . . exclude the possibility that
such a weapon could be unlawful by reference to the humanitarian law, if its
use could never comply with its requirements--no matter what specific type
within that class of weapon was being used and no matter where it might be
used. [FN368]
Judges Shahabuddeen and Weeramantry reached
the opposite*1446 conclusion. Judge
Shahabuddeen stated, "in judging of the admissibility of a particular
means of warfare, it is necessary, in my opinion, to consider what the means
can do in the ordinary course of warfare, even if it may not do it in all circumstances."
[FN369]
Judge Weeramantry, addressing the issue from
the perspective of nuclear decision-making, concluded that nuclear weapons
should be declared illegal in all circumstances, with the proviso that if such
use would be lawful "in some circumstances, however improbable, those
circumstances need to be specified." [FN370]
B. U.S.
Distortion 2: That the Effects of Nuclear Weapons are Controllable
At the ICJ, the United States did not
retrench on the applicability of the controllability requirement, but rather
argued the matter on a factual level, asserting that nuclear weapons--or at
least the type of nuclear weapons whose legality the United States
defended--are controllable.
Without arguing the lawfulness of the use of
strategic nuclear weapons or even of a substantial number of tactical weapons
or of a small number of such weapons in urban areas, the United States asserted
the possible lawfulness of the use of a small number of highly accurate
low-yield nuclear weapons (ostensibly tactical weapons) directed against
non-urban targets, arguing that the effects of such attacks could be so limited
and controlled as to be lawful.
John H. McNeill, the U.S. Senior Deputy
General Counsel, Department of Defense, told the Court:
The argument that international law
prohibits, in all cases, the use of nuclear weapons appears to be premised on
the incorrect assumption that every use of every type of nuclear weapon will
necessarily share certain characteristics which contravene the law of armed
conflict. Specifically, it appears to
be assumed that any use of nuclear weapons would inevitably escalate into a
massive strategic nuclear exchange, resulting automatically in the deliberate
destruction of the population centers of opposing sides . . . .
Nuclear weapons, as is true of conventional
weapons, can be *1447 used in a variety of ways: they can be deployed to
achieve a wide range of military objectives of varying degrees of significance;
they can be targeted in ways that either increase or decrease resulting
incidental civilian injury or collateral damage; and their use may be lawful or
not depending upon whether and to what extent such use was prompted by another
belligerent's conduct and the nature of the conduct. [FN371]
Noting that it has been argued that nuclear
weapons are inherently indiscriminate in their effect and cannot reliably be
targeted at specific military objectives, McNeill stated, "This argument
is simply contrary to fact. Modern
nuclear weapon delivery systems are, indeed, capable of precisely engaging
discrete military objectives." [FN372]
Alluding to the assumptions made by the World
Health Organization ("WHO") in its 1987 study as to the effects of
nuclear weapons, McNeill objected to the "four scenarios" depicted by
the WHO as "highly selective" in that they addressed "civilian
casualties expected to result from nuclear attacks involving significant
numbers of large urban area targets or a substantial number of military targets."
[FN373] But no reference is made in the
report to the effects to be expected from other plausible scenarios, such as a
small number of accurate attacks by low-yield weapons against an equally small
number of military targets in non-urban areas. [FN374]
Reinforcing the point as to "other
plausible [low-end use] scenarios," McNeill stated that such plausibility
"follows from a fact noted in the WHO Report by Professor Rotblat: namely,
that 'remarkable improvements' in the performance of nuclear weapons in recent
years have resulted in their 'much greater accuracy,"' [FN375] stating
that such scenarios "would not necessarily raise issues of proportionality
or discrimination." [FN376]
In its memorandum to the ICJ, the United
States stated that, through the technological expertise of "modern weapon
designers," it is now able to control the effects of nuclear
weapons--specifically, "to tailor the effects of a nuclear weapon to deal
with *1448 various types of military objectives." [FN377] It has been argued that nuclear weapons are
unlawful because they cannot be directed at a military objective. This argument ignores the ability of modern
delivery systems to target specific military objectives with nuclear weapons,
and the ability of modern weapons designers to tailor the effects of a nuclear
weapon to deal with various types of military objectives. Since nuclear weapons can be directed at a
military objective, they can be used in a discriminate manner and are not
inherently indiscriminate.
Characterizing the effects of nuclear weapons
as controllable indeed takes away much of the legal objectionability of the
weapons. If the United States can
reliably deliver nuclear weapons to their intended targets and control the
effects, including the radiation effects, of the weapons, nuclear weapons would
appear to be just another weapon. On
this basis, there would appear to be nothing wrong with North Korea's having
such weapons, threatening to use them, and potentially using them in many
circumstances.
The ICJ in its Nuclear Weapons Advisory
Decision did not reach this issue of the controllability of the effects of
nuclear weapons. The Court determined
that, because of the potential of nuclear weapons to destroy civilization and
the entire ecosystem of the planet, the use of nuclear weapons would generally
be unlawful, but that it was not in possession of sufficient facts to evaluate
whether use of nuclear weapons (ostensibly, precision low-yield tactical ones)
could be lawful in extreme circumstances of self-defense when a State's
survival was at stake. [FN378]
*1449 The Court stated that it did not have
sufficient facts to determine the validity of the argument of the United States
and other nuclear weapons States to the effect that highly accurate low-yield
tactical nuclear weapons could be used in such a way as to limit and control
their effects. [FN379]
The facts which the Court found to be missing
ostensibly had to do with the likely effects of the use of low-yield tactical
nuclear weapons and the risk of escalation.
The Court first noted the view expressed by the United Kingdom in its
written submission to the Court, and the United States in its oral
argument:
The reality . . . is that nuclear weapons might be used in a wide
variety of circumstances with very different results in terms of likely
civilian casualties. In some cases,
such as the use of a low yield nuclear weapon against warships on the High Seas
or troops in sparsely populated areas, it is possible to envisage a nuclear
attack which caused comparatively few civilian casualties. It is by no means the case that every use of
nuclear weapons against a military objective would inevitably cause very great
collateral civilian casualties. [FN380]
The Court then noted the contrasting view of
other States:
[R]ecourse to nuclear weapons could never be compatible with the
principles and rules of humanitarian law and is therefore prohibited. In the event of their use, nuclear weapons
would in all circumstances be unable to draw any distinction between the
civilian population and combatants, or between civilian objects and military
objectives, and their effects, *1450 largely uncontrollable, could not be
restricted, either in time or in space, to lawful military targets. Such weapons would kill and destroy in a
necessarily indiscriminate manner, on account of the blast, heat and radiation
occasioned by the nuclear explosion and the effects induced; and the number of
casualties which would ensue would be enormous. The use of nuclear weapons would therefore be prohibited in any
circumstance, notwithstanding the absence of any explicit conventional
prohibition. [FN381]
While concluding that it was unable to
resolve these polar factual positions, the Court noted that the proponents of
legality had failed to substantiate their position as to the possibility of
limited use, without escalation, of low level nuclear weapons or even of the
potential utility of such use if it were possible:
[N]one of the States advocating the legality of the use of nuclear
weapons under certain circumstances, including the 'clean' use of smaller, low
yield tactical nuclear weapons, has indicated what, supposing such limited use
were feasible, would be the precise circumstances justifying such use; nor
whether such limited use would not tend to escalate into the all-out use of
high yield nuclear weapons. This being
so, the Court does not consider that it has a sufficient basis for a
determination of the validity of this view. [FN382]
While the ICJ did not reach the issue, it
seems clear, based on available information as the radiation effects of nuclear
weapons, that the U.S. position that it can control such effects is unfounded. Neither before the ICJ nor ostensibly in any
other publicly available source has the United States presented any evidence
that it can control the radiation effects of nuclear weapons, and there would
appear to be no such evidence. While it
is true that the low yield tactical nuclear weapons that the United States
defended before the ICJ would release less radiation than higher yield nuclear
weapons, the low yield weapons release substantial radiation [FN383]--and that
radiation is uncontrollable in *1451 terms of how it will spread. [FN384]
The U.S. position as to the controllability
of the spread of radiation from an exploded nuclear weapon appears to ignore
the following essentially incontrovertible facts:
. Radiation is a defining feature of nuclear
weapons. All nuclear weapons emit
radiation when detonated. [FN385]
. Radiation is inimical to life and
cumulative in its buildup and effects, surviving in the environment and
genetically in human and other life forms typically for many years (as to some
elements, for thousands of years). [FN386]
. The spread of radiation from the detonation
of nuclear weapons could not be controlled or predicted since radiation *1452
is dispersed in the environment by forces such as the winds, the waters, the
soil, animals, plants, and genetic effects, as well as vagaries as to the point
of delivery of the weapon in relation to the surface and applicable
environmental factors. [FN387]
. Radiation cannot discriminate between
friend and foe, combatant and noncombatant, adversary and neutral, one's own
population and forces and those of the enemy. [FN388]
. Radiation from the Hiroshima and Nagasaki
bombs, from atomic testing, and from the Chernobyl releases have caused and
continue to cause substantial and widespread injury to human health and other
life and may be expected to continue to do so for generations to come.
[FN389]
*1453 . With escalation, the levels of
radiation will increase. [FN390]
Outside the courtroom, the United States
recognizes the potential uncontrollability of the effects of nuclear
weapons. This can be seen from the
Chairman of the Joint Chief's Joint Pub 3-12, Doctrine for Joint Nuclear
Operations, setting forth the current operational planning for the integrated
use by U.S. forces of nuclear weapons in conjunction with conventional weapons:
[FN391] "[T]here can be no
assurances that a conflict involving weapons of mass destruction could be
controllable or would be of short duration.
Nor are negotiations opportunities and the capacity for enduring control
over military forces clear." [FN392]
As noted by Judge Shahabuddeen in his dissent
in the Nuclear Weapons Advisory Decision, the United States, in ratifying the
Treaty of Tlatelolco, subscribed to the following statement of preamble as to
the indiscriminate and excessive injury caused by nuclear weapons:
The preamble to the 1967 Treaty of Tlatelolco, Additional Protocol
II of which was signed and ratified by the five [nuclear weapons States,
including the United States], declared that the Parties are convinced.
That the incalculable destructive power of nuclear weapons has
made it imperative that the legal prohibition of war should be strictly
observed in practice if the survival of civilization and of mankind itself is
to be assured.
That nuclear weapons, whose terrible effects are suffered,
indiscriminately and inexorably, by military forces and civilian population
alike, constitute, through the persistence of the radioactivity they release,
an attack on the integrity of the human species and ultimately may even render
the whole earth uninhabitable. [FN393]
*1454 The extreme and disproportionate
effects threatened by nuclear weapons are acknowledged by the U.S. military in their
operational policy, training, and planning.
The Nuclear Weapons Joint Operations Manual states:
US nuclear forces serve to deter the use of WMD ["weapons of
mass destruction," including chemical, biological, and nuclear weapons]
across the spectrum of military operations.
From a massive exchange of nuclear weapons to limited use on a regional
battlefield, US nuclear capabilities must confront an enemy with risks of
unacceptable damage and disproportionate loss should the enemy choose to
introduce WMD into a conflict. [FN394]
Similarly:
[S]omeday a nation may, through miscalculation or by deliberate
choice, employ these weapons. . . . [A]n opponent may be willing to risk
destruction or disproportionate loss in following a course of action based on
perceived necessity, whether rational or not in a totally objective sense. In such cases deterrence, even based on the
threat of massive destruction, may fail. [FN395]
The Navy Judge Advocate, in his reviews of
the lawfulness of the Trident I (C-4) Missile and the Tomahawk Cruise Missile,
recognized the potential uncontrollability of escalation resulting from the use
of nuclear weapons and described the U.S. military in light of such
uncontrollability. With respect to the
Trident I, he stated that "[i]f escalation cannot be controlled, the
United States objective is to maximize the resultant political, economic and
military power of the United States relative to the enemy in the postwar period
in order to preclude enemy domination.
This is to be accomplished by: [following items, labeled a, b, and c,
are completely redacted in the declassified, released version]. [FN396] For the Tomahawk, he stated that, if
escalation cannot be controlled, the Tomahawk is meant to cause the
"[d]estruction of those enemy political, economic and military resources
critical to the enemy's postwar power and influence *1455 and national and
military recovery." [FN397] This
is inconsistent with the rule which the Navy Judge Advocate acknowledges in the
same document that "[t]hat the only legitimate object which States should
endeavor to accomplish during was is to weaken the military force of the
enemy." [FN398]
As to the radiation effects, the Navy Judge
Advocate General, in his review of the lawfulness of the Trident I (C-4)
Missile, and the Tomahawk, noted the significance of where the weapon
detonates, vis-a-vis the ground. As to the Trident I, he stated, that
"[t]he optimum height of burst against hard targets . . . may result in
radioactive fallout contamination downwind from ground zero." [FN399] As to the Tomahawk, he stated that attacking
a hard target with a nuclear Tomahawk requires a close to the ground air burst,
resulting in "significant [post-detonation] radioactive fallout."
[FN400]
C. U.S. Distortion
No. 3: That the United States Can Hit Desired Targets with Great Accuracy
As noted above, the United States has argued
that it can now target nuclear weapons with great accuracy. [FN401] Based on publicly available information, it
similarly appears that at least some of the North Korean missile delivery
systems are capable of considerable accuracy. [FN402]
While such contentions as to the physical
accuracy of particular missile systems may be accurate, they overlook the fact
that such accuracy is merely of a statistical nature, referring to the fact
that modern U.S. missiles are generally capable of extreme *1456 accuracy.
[FN403] A high percentage of missiles
launched can be expected to strike within a close distance of their intended
targets. [FN404]
However, the accuracy of any particular
missile is uncertain and no one can know where it might end up. [FN405]
Variables affecting this matter are legion,
including: the weather; gravitational effects; the accuracy of test or computational
assumptions as to how the missile will perform and as to the location and
nature of the target; the extent to which the launch was programmed and
implemented correctly to reach the target; the extent to which the mechanical
and electronic equipment in the missile functions as intended; the effect of
the detonation of other nuclear or other weapons on performance; and the height
at which the warhead detonates. [FN406]
The United States reportedly achieved an
overall accuracy level of some 82% in the Gulf War with its BG-109 Tomahawk
cruise missiles, but that was only an average, with some missions *1457
achieving a near perfect success rate and one mission obtaining a rate of only
67%. [FN407]
With the U.S. attacks on terrorist bases in
Afghanistan and Sudan in 1998, some missiles reportedly ended up in the wrong
country, for example, Pakistan. [FN408]
Similarly, in the 1999 Kosovo operation,
there were numerous missile strikes that ended up at the wrong targets, both
because of weapons and human error, including intelligence error. [FN409]
Delivery of nuclear weapons by bomber, while
having the advantage that a bomber may generally be recalled before releasing its
weapons, [FN410] is subject to equipment, pilot, and situational *1458
error. In U.S. operations in
Afghanistan, the U.S. military accidentally bombed a wedding party and a
cluster of Canadian soldiers. [FN411]
During the recent invasion of Iraq, Iraqi officials claimed that air
strikes hit two crowded Baghdad markets, and a missile hit a Syrian bus.
[FN412] Stephen Younger, the head of
the Defense Threat Reduction Agency, recently stated that poor intelligence
hampers the effectiveness of precision-guided munitions. [FN413]
While certain of the more modern U.S.
aircraft are extraordinarily fast and ostensibly have the capability of eluding
radar detection, aircraft are inherently subject to pursuit, radar and human
error--and hence to substantial risk factors as to accuracy of delivery.
[FN414] These limitations on accuracy
of delivery obviously impose limitations on nuclear operations not present as
to conventional weapons where the implications of weapons going astray are much
less serious. [FN415] Even if the
warhead is delivered accurately at the target, its performance is subject to
its correct functioning. [FN416] No
doubt the accuracy of delivery of the *1459 North Korean systems are subject to
at least as much uncertainty.
D. U.S. Distortion
No. 4: That the Effects of Nuclear Weapons Are No Worse than Those of
Conventional Weapons
The United States took the position before
the ICJ that the effects of nuclear weapons are essentially comparable to the
effects of conventional weapons.
McNeill argued:
It is true that the use of nuclear weapons would have an adverse
collateral effect on human health and both the natural and physical
environments, but so too can the use of conventional weapons. Obviously, World Wars I and II, as well as
the 1990-1991 conflict resulting from Iraq's invasion of Kuwait, dramatically
demonstrated that conventional war can inflict terrible collateral damage to
the environment. The fact is that armed
conflict of any kind can cause widespread, sustained destruction; the Court
need not examine scientific evidence to take judicial notice of this evident
truth. [FN417]
This position, as applied to North Korea,
would seem to be as misguided as it is unfounded. It would seem to be indisputable that nuclear weapons threaten
far greater damages than conventional weapons.
The ICJ described the "unique characteristics" of nuclear
weapons:
The Court . . . notes that nuclear weapons are explosive devices
whose energy results from the fusion or fission of the atom. By its very nature, that process, in nuclear
weapons as they exist today, releases not only immense quantities of heat and
energy, but also powerful and prolonged radiation. According to the material before the Court, the first two causes
of damage are vastly more powerful than the damage caused by other weapons,
while the phenomenon of radiation is said to be peculiar to nuclear weapons.
These characteristics render the nuclear weapon potentially catastrophic. The
destructive power of nuclear weapons cannot be contained in *1460 either space
or time. They have the potential to
destroy all civilization and the entire ecosystem of the planet.
The radiation released by a nuclear explosion would affect health,
agriculture, natural resources and demography over a very wide area. Further, the use of nuclear weapons would be
a serious danger to future generations. Ionizing radiation has the potential to
damage the future environment, food and marine ecosystem, and to cause genetic
defects and illness in future generations.
36. In consequence . . . it is imperative for the Court to take
account of the unique characteristics of nuclear weapons, and in particular
their destructive capacity, their capacity to cause untold human suffering, and
their ability to cause damage to generations to come. [FN418]
The effects of nuclear weapons were described
further in dissenting opinions of individual Judges of the ICJ. Judge Weeramantry stated that "[a]
5-megaton weapon would represent more explosive power than all of the bombs
used in World War II and a twenty-megaton bomb more than all of the explosives
used in all of the wars in the history of mankind." [FN419] Judge Weeramantry also noted the electromagnetic
pulse as a further effect of the use of nuclear weapons, stating that this very
sudden and intensive burst of energy throws all electronic devices out of
action, including communications lines, such as nuclear command and control
centers. The judge noted that the
electromagnetic pulse caused by a nuclear explosion of some 400 kilometers
altitude "can instantly put out of service the greater part of
semiconductor electronic equipment in a large country, such as the United
States, as well as a large part of its energy distribution networks, without
other effects being felt on the ground." [FN420]
*1461 Judge Weeramantry discussed the
long-term nature of the effects of radiation:
The effects upon the eco-system extend, for
practical purposes, beyond the limits of all foreseeable historical time. The half-life of one of the by-products of a
nuclear explosion--plutonium 239--is over twenty thousand years. With a major nuclear exchange it would
require several of these "half-life" periods before the residuary
radioactivity becomes minimal. Half-life is "the period in which the rate
of radioactive emission by a pure sample falls by a factor of two. . .
."
The following table gives the half-lives of
the principal radioactive elements that result from a nuclear test.
Nuclide |
Half-life |
Cesium
137 |
30.2
years |
Strontium
90 |
28.6
years |
Plutonium
239 |
24,100
years |
Plutonium
240 |
6,570
years |
Plutonium
241 |
14.4
years |
Americium
241 |
432
years |
Theoretically, this could run to tens of
thousands of years. At any level of
discourse, it would be safe to pronounce that no one generation is entitled,
for whatever purpose, to inflict such damage on succeeding generations.
[FN421]
With respect to the argument that Hiroshima
and Nagasaki show that nuclear war is survivable, Judge Weeramantry noted not
only that the bombs used in Hiroshima and Nagasaki were not of more than 15
kilotons explosive power, but also that the use of those bombs ended the war,
occurred in a context where the target country was not a nuclear power, and
there were no other nuclear powers to come to Japan's assistance, all
situations unlikely to characterize any future use of such weapons. [FN422]
Judge Koroma stated:
According to the material before the Court, it is estimated that
more than 40,000 nuclear warheads exist in the world today with a total
destructive capacity around a million times greater than that of the bomb which
devastated Hiroshima. A single nuclear
bomb detonated over a large city is said to be *1462 capable of killing more
than 1 million people. These weapons,
if used massively, could result in the annihilation of the human race and the
extinction of human civilization.
Nuclear weapons are thus not just another kind of weapon; they are
considered the absolute weapon and are far more pervasive in terms of their
destructive effects than any conventional weapon. [FN423]
Judge Shahabuddeen quoted Javier Perez de Cuellar,
Secretary-General of the United Nations, to similar effect:
The world's stockpile of nuclear weapons today is equivalent to 16
billion tons of TNT. As against this,
the entire devastation of the Second World War was caused by the expenditure of
no more than 3 million tons of munitions. In other words, we possess a
destructive capacity of more than a 5,000 times what caused 40 to 50 million
deaths not too long ago. It should
suffice to kill every man, woman and child 10 times over. [FN424]
The U.S. Joint Chief of Staff's Joint Nuclear
Operations manual recognizes that "the use of nuclear weapons represents a
significant escalation from conventional warfare." [FN425] The manual states: "The fundamental
differences between a potential nuclear war and previous military conflicts
involve the speed, scope, and degree of destruction inherent in nuclear weapons
employment, as well as the uncertainty of negotiating opportunities and
enduring control over military forces." [FN426] Since nuclear weapons have greater destructive potential, in many
instances they may be inappropriate. [FN427]
The Joint Nuclear Operations manual further recognizes: "The
immediate and prolonged effects of WMD--including blast, thermal radiation,
prompt (gamma and neutron) *1463 and residual radiation--pose unprecedented
physical and psychological problems for combat forces and noncombatant
populations alike." [FN428]
The U.S. Joint Chief of Staff's Joint Theater
Nuclear Operations manual similarly states:
Nuclear weapons are unique in this analysis [as to "the
long-standing targeting rules of military necessity, proportionality, and
avoidance of collateral damage and unnecessary suffering] only in their greater
destructive potential (although they also different from conventional weapons
in that they produce radiation and electromagnetic effects and, potentially,
radioactive fallout). [FN429]
E. U.S.
Distortion No. 5: That the Radiation Effects of Nuclear Weapons Are Not
Relevant to the Lawfulness of the Use of the Weapons
The United States contends that the radiation
effects of nuclear weapons need not be taken into consideration in evaluating
whether the use of the weapons would be lawful since radiation is a natural
effect of nuclear weapons, not something intentionally added by the United
States to make nuclear weapons more destructive. In its memorandum to the ICJ, the United States argued:
[The prohibition against unnecessary suffering] was intended to
preclude weapons designed to increase the injury or suffering of the persons
attacked beyond that necessary to accomplish the military objective. It does not prohibit weapons that may cause
great injury or suffering if the use of the weapon is necessary to accomplish
the military mission. For example, it
does not prohibit the use of anti-tank munitions which must penetrate armor by
kinetic-energy or incendiary effects, even though this may well cause severe
and painful burn injuries to the tank crew.
By the same token, it does not prohibit the use of nuclear weapons, even
though such weapons can produce severe and painful injuries. [FN430]
*1464 U.S. attorney McNeill stated the point
specifically in oral argument: "The unnecessary suffering principle
prohibits the use of weapons designed specifically to increase the suffering of
persons attacked beyond that necessary to accomplish a particular military
objective." [FN431]
By this position, the United States in effect
is telling North Korea that under international law, it may use nuclear weapons
without considering the radiation effects of such weapons upon civilians, enemy
forces, neutrals, or anyone else.
The United States cited no support for this
requirement, which appears to be contrary to the United States' general
statement of the requirements of the rule of necessity, as well as to its
statements of the rules of discrimination and proportionality. [FN432] It would seem clear, as a matter of law,
that, in evaluating the lawfulness of a use of nuclear weapons, a State is
required to consider all of the effects, including the radiation effects.
F. U.S.
Distortion No. 6: That Only Specifically Intended Effects of Nuclear Weapons
Are Unlawful
The United States argued before the ICJ that
uses of nuclear weapons causing unlawful effects would only be unlawful if the
State using the weapons specifically intended the unlawful effects. U.S. attorney McNeill stated in his oral
argument:
The argument that international law prohibits, in all cases, the
use of nuclear weapons appears to be premised on the incorrect assumption that
every use of every type of nuclear weapon will necessarily share certain
characteristics which contravene the law of armed conflict. Specifically, it appears to be assumed that
any use of nuclear weapons would inevitably escalate into a massive strategic
nuclear exchange, resulting automatically in the deliberate destruction of the
population centers of opposing sides. [FN433]
The U.S. argument that the destruction of an enemy's
population center must be "deliberate" to be unlawful appears to
assume that violations of the law of war must be intentional, as *1465 opposed
to grossly negligent or reckless. Such a limitation, as applied to North Korea
or any State, would appear to greatly limit the scope of the law of armed
conflict. This argument is also
contrary to settled law. As the
Nuremberg proceedings exemplified, individuals, not States, are potentially put
in prison or executed. [FN434] States can, and historically have been, subject
to damages and reparations, but, in contemporary international law, the focus
of war crimes trials is on the responsible individuals. [FN435]
The United States recognized a very broad
range of potential criminal liability of individuals for war crimes, including
not only for activity of an intentional nature, but also for reckless, grossly
negligent, and even negligent conduct.
Specifically, the United States has recognized that States are subject
to war crimes culpability without regard to mental state; [FN436] individuals
are subject to culpability based not only on recklessness, but also on gross
negligence; [FN437] and commanders are subject to culpability based on mere
negligence or something approaching it. [FN438]
Thus, The Air Force Manual on International
Law goes on to state that mens rea, or a guilty mind, at the level of
purposeful behavior or intention or at least gross negligence, is required for
individual, as opposed to State, criminal responsibility. [FN439] The *1466 manual quotes Spaight's statement
of the rule:
In international law, as in municipal law intention to break the
law --mens rea or negligence so gross as to be the equivalent of criminal
intent is the essence of the offense. A
bombing pilot cannot be arraigned for an error of judgment . . . it must be one
which he or his superiors either knew to be wrong, or which was, in se, so
palpably and unmistakably a wrongful act that only gross negligence or
deliberate blindness could explain their being unaware of its wrongness.
[FN440]
As to commander liability, a commander is
responsible to maintain and prevent violations of the law of war by
subordinates and can be liable based on such violations.
The Air Force Manual on International Law
states that "[c]ommand responsibility for acts committed by subordinates
arises when the specific wrongful acts in question are knowingly ordered or
encouraged." [FN441] The manual
states that the commander is also responsible "if he has actual knowledge,
or should have had knowledge" that his subordinates "have or are
about to commit criminal violations, and he culpably fails to take reasonably
necessary steps to ensure compliance with the law and punish violators
thereof." [FN442]
The Naval/Marine Commander's Handbook quotes
the United States Military Tribunal's decision in The Hostages case for the
proposition that the commander is charged with available information even if
not personally aware of same:
Want of knowledge of the contents of reports made to him (i.e., to
the commander general) is not a defense.
Reports to commanding generals are made for their special benefit. Any failure to acquaint themselves with the
contents of such reports, or a failure to require additional reports where
inadequacy appears on their face, constitutes a dereliction of duty which he
cannot use in his behalf. [FN443]
The handbook states that the responsibility
of a commanding officer "may be based solely upon inaction" and that
it is "not always necessary to establish that a superior knew, or must be
*1467 presumed to have known of the offense committed by his
subordinates." [FN444] "While
a commander may delegate some or all of his authority, he cannot delegate
responsibility for the conduct of the forces he commands." [FN445]
In upholding the defendant's conviction in
the Yamashita case, the U.S. Supreme Court ostensibly saw commander
responsibility as a way of dealing with the risk of wanton acts by troops
against protected persons:
The question then is whether the law of war imposes on an army
commander a duty to take such appropriate measures as are within his power to
control the troops under his command for the prevention of the specified acts
which are violations of the law of war and which are likely to attend the
occupation of hostile territory by an uncontrolled soldiery, and whether he may
be charged with personal responsibility for his failure to take such measures
when violations result. It is evident
that the conduct of military operations by troops whose excesses are
unrestrained by the orders of or efforts of their commanders would almost
certainly result in violations which it is the purpose of the law of war to
prevent. [FN446]
It is also clear that the law of armed
conflict generally recognizes recklessness and other mental states less than
strict intentionality as a basis for war crimes liability. [FN447] The Geneva conventions extensively provide
for criminal culpability for violations committed willfully, [FN448] a state of
mind broadly recognized *1468 as encompassing recklessness. [FN449] The law of
armed conflict similarly recognizes criminal culpability for acts of wantonness
and of "wanton destruction," acts also not reaching the level of
strict intentionality. [FN450]
Similarly, in imposing war crimes culpability
for "an attack which may be expected to cause" certain impermissible
effects, as prescribed, for example, in Protocol I to the Geneva Conventions,
Article 51(5), or for acts that are "intended, or may be expected, to
cause" certain impermissible effects, as prescribed, in Protocol I,
Article 35(3), the law again recognizes potential culpability for war crimes
committed with a mental element of less than strict intentionality. [FN451]
While the ICJ did not address this issue in
its Nuclear Weapons Advisory Decision, several of the judges in their
individual decisions did. Judge Weeramantry, in his dissenting opinion,
rejected the notion that there is no State responsibility for the effects of
nuclear weapons--"by-products" or "collateral damage"--that
are not specifically intended:
Such results are known to be the necessary consequences of the use
of the weapon. The author of the act causing
these consequences cannot in any coherent legal system avoid legal
responsibility for causing them, any less than a man careering in a motor
vehicle at a hundred and fifty kilometers per hour *1469 through a crowded
market street can avoid responsibility for the resulting deaths on the ground
that he did not intend to kill the particular person who died. [FN452]
Judge Weeramantry added: "The plethora
of literature on the consequences of the nuclear weapon is so much part of
common universal knowledge today that no disclaimer of such knowledge would be
credible." [FN453]
To the argument that the rule of
moderation--the prohibition of the use of arms "calculated to cause
unnecessary suffering"--requires specific intent
("calculation"), Judge Weeramantry cited the "well-known legal
principle that the doer of an act must be taken to have intended its natural
and foreseeable consequences." [FN454]
He also stated that reading into the requirement such a requirement of
specific intent would not "take into account the spirit and underlying
rationale of the provision--a method of interpretation particularly
inappropriate to the construction of a humanitarian instrument."
[FN455] He added that nuclear weapons
"are indeed deployed 'in part with a view to utilizing the destructive
effects of radiation and fall-out."' [FN456]
G. U.S.
Distortion No. 7: That A Potential Use Of A Nuclear Weapon Could Only Be Deemed
Unlawful In Advance If It Were Clear That It Would "Necessarily" And
"Inevitably" Lead To Impermissible Collateral Effects
The United States argued to the ICJ that the
unlawful effects of the use of nuclear weapons would have to be necessary and
inevitable effects of such weapons for the use to be unlawful. As noted above, U.S. attorney McNeill
argued:
The argument that international law prohibits, in all cases, the
use of nuclear weapons appears to be premised on the incorrect assumption that
every use of every type of nuclear weapon will necessarily share certain
characteristics which contravene the law of armed conflict. Specifically, it appears to be assumed that
any use of nuclear weapons would inevitably escalate into a massive strategic
nuclear exchange, resulting*1470 automatically in the deliberate destruction of
the population centers of opposing sides. [FN457]
This formulation of the law gives North Korea
great leeway to use nuclear weapons without considering unlawful effects that
are likely but not inevitable, essentially taking such effects out of the
equation in evaluating the lawfulness of a particular use of nuclear
weapons.
The United States, however, cites no legal
authority for so limiting the applicable law and there would appear to be
none. The rules of discrimination,
necessity, and proportionality, as articulated by the United States itself,
contain no such requirement that unlawful effects be necessary and inevitable.
[FN458]
To the contrary, the United States has
recognized that the rules of discrimination, necessity, and proportionality are
rules of reason, [FN459] subject to application on an objective not a
subjective basis. [FN460] As such, the
rules are to be applied in light of all reasonably available information and
based on what is reasonable in the circumstances.
When considering the meaning and requirements
of the rules of discrimination, necessity, and proportionality, the United
States appears essentially to have taken the position that unlawful effects
that are likely should be taken into consideration, [FN461] obviously a far more
demanding standard than necessity and inevitability. In its memorandum to the ICJ, the United States argued:
Whether an attack with nuclear weapons would
be disproportionate depends entirely on the circumstances, including the nature
of the enemy threat, the importance of destroying the objective, the character,
size and likely effects of the device, and the magnitude of the risk to
civilians. Nuclear weapons are not
inherently disproportionate. [FN462]
*1471
H. U.S.
Distortion No. 8: That Only Direct Effects Need Be Considered
The United States further takes the position
that only the direct or "automatic" effects of the use of nuclear
weapons need be considered. [FN463] This position appears to give considerable
leeway to North Korea and other States to use nuclear weapons without
consideration of the likely indirect effects, such as escalatory uses of
biological, chemical, and/or nuclear weapons by one's adversary or its allies
or indeed by oneself in preemptive or actual response to one's adversary or its
allies.
The United States provides no legal authority
for limiting the relevant effects to those that are automatic and there would
appear to be no such authority. To the
contrary, the law seems clear that all possible effects that may reasonably be
anticipated must be considered. [FN464]
I. U.S.
Distortion No. 9: That the Collateral Killing of Civilians Is Lawful as Long as
the Civilians Were Not Targeted "As Such"
The United States argued before the ICJ that collateral
injury to civilians incidental to an attack on a military target is acceptable
as long as the civilians are not targeted "as such." [FN465] The United States argued that the rule of
civilian immunity "would not be violated by the use of nuclear weapons to
attack targets that constitute legitimate military objectives . . . ." [FN466]
The Air Force Manual on International Law
quotes the articulation of this rule--"[t]hat it is prohibited to launch
attacks against the civilian population as such" [FN467]--from United
Nations Resolution 2444 (XXIII), recognized by the United States as "an
accurate declaration of existing customary law." [FN468]
The Navy Judge Advocate General, in his
review of the lawfulness *1472 of the Trident I (C-4) Missile, stated the U.S.
memorably, "Nuclear attack planning is not directed towards civilian
population or residential structures per se, although substantial injury/damage
to population and residential structures may result from targeting to accomplish
[the national strategic objectives pursued by employment of the weapons]."
[FN469]
This argument, if valid, would give North
Korea wide leeway in killing civilians through attacks on military
targets. However, this interpretation
of the limited scope of civilian immunity is questionable.
The "as such" principle is based on
the medieval doctrine of double effect, whereby necessary and foreseen but
unintended evil effects of an otherwise good action are accepted on the ground
that they were not intended. [FN470]
This doctrine, useful as it may be as a
philosophical matter for distinguishing between various kinds of actions, seems
fatally anachronistic when made to bear the weight of the lawfulness of nuclear
weapons use. The extreme destruction likely
to result from nuclear weapons ostensibly has a legal and moral content
transcending the niceties of intentionality.
In any event, to the extent intentionality is relevant; the principles
of commander and other individual liability would seem to trump this medieval
doctrine.
This over-used and poorly understood doctrine
even by its own terms does not appear to justify the use of nuclear
weapons. One of the elements of the
doctrine is that the actor does not use the evil effect as an end or as a means
to an end. [FN471] Yet the United
States, like other nuclear nations, is not only threatening, but also, in the
case of use, would be using, the "evil effect," the *1473 excessive
and indiscriminate injury to the enemy's non-combatants and other protected
persons and objects, since the doctrine of deterrence by its terms threatens
such excessive and disproportionate effects. [FN472]
As stated previously, the Joint Chief of
Staff's Joint Nuclear Operations manual states that "the US nuclear capabilities
must confront an enemy with risks of unacceptable damage and disproportionate
loss should the enemy choose to introduce WMD into a conflict" [FN473] and
that the adversary is in the position of "risk[ing] destruction or
disproportionate loss." [FN474]
The principle of double effect also includes
a requirement of proportionality between the evil effect and the direct effect,
here the achieving of the military objective. [FN475] Accordingly, the principle of double effect, on this basis as
well, would be unavailable to provide a legal justification for the effects of
the use of nuclear weapons unless the proportionality rule could be complied
with.
Hence, the "as such" rule, based
not only upon its terms but also upon its underlying rationale and the
developments in weapons and law since the Middle Ages, is ostensibly not
applicable to nuclear or other weapons of mass destruction. The established substantive rules of law,
with their requirements as to mental state, govern.
Nuclear weapons will have effects on
protected persons and objects. The Navy
Judge Advocate General, in his review of the lawfulness of the Tomahawk Cruise
Missile, stated: " Collateral fatalities/injuries associated with a
nuclear warhead attack against military or industrial targets will
result." [FN476]
J. U.S.
Distortion No. 10: That Nuclear Weapons May Lawfully Be Used in Reprisal
The United States argued before the ICJ that,
even if the *1474 use of nuclear weapons were deemed per se unlawful, such
weapons could still be used in reprisal:
Even if it were to be concluded--as we
clearly have not--that the use of nuclear weapons would necessarily be
unlawful, the customary law of reprisal permits a belligerent to respond to
another party's violation of the law of armed conflict by itself resorting to
what otherwise would be unlawful conduct. [FN477]
While the United States recognized that a
reprisal must be proportionate to the other side's violation, [FN478] it impliedly
argued that many uses of nuclear weapons could satisfy such a requirement and
constitute a lawful reprisal. This
position gives great leeway to North Korea and other States as to the
circumstances in which nuclear weapons might lawfully be used. This position is not legally tenable. As discussed above, the use of a weapon
cannot satisfy the test of proportionality if the effects of the *1475 weapon
cannot be controlled. [FN479] In
addition, the action taken in reprisal must be "taken in the last resort,
in order to prevent the adversary from behaving illegally in the future"
[FN480] and "may not significantly exceed the adversary's violation either
in violence or effect." [FN481]
The probabilities are overwhelming that a
second use of nuclear weapons would be designed to punish the enemy and, not
incidentally, in the case of a substantial nuclear adversary, to use one's own
nuclear assets before they could be preemptively struck by the adversary, and
to attempt to preemptively strike the adversary's nuclear assets (many of which
would likely be "co-located" with civilian targets) before they could
be used. Even assuming adequate command
and control, crucial decisions would have to be made within a very short time
and would likely be dictated largely by existing war plans contemplating
nuclear weapons use. The notion of a
second strike as limited to the legitimate objectives of reprisal seems
oxymoronic.
In addition, the United States, while it
disputes the applicability to nuclear weapons of the limitations upon reprisals
imposed by Protocol I, [FN482] recognizes that the law of armed conflict,
including that as to reprisals, is subject to the limitations inherent in the
purposes of the law of armed conflict, such as preserving civilization and the
possibility of the restoration of the peace, purposes that would likely be
exceeded by the use of nuclear weapons.
Even if it were assumed that certain second
uses of nuclear weapons, although otherwise unlawful, might be legitimized as reprisals,
such legitimization, like the lawfulness of the limited use of a small number
low-yield nuclear weapons in remote areas asserted by the United States before
the ICJ, would only affect a small portion of the potential uses for nuclear
weapons contemplated by U.S. policy and planning. It would leave unaffected the unlawfulness of the vast bulk of
potential uses and virtually *1476 the totality of likely possible uses,
including first uses against biological, chemical, and conventional weapons
targets, second uses intended to defeat and destroy the enemy, disproportionate
second uses, and other high-mega-tonnage nuclear strikes with likely extreme
effects.
XI. AGENDA
BETWEEN THE UNITED STATES AND NORTH KOREA
It is
difficult to be certain of the true agenda between North Korea and the United
States. The background as to the
post-World War II division of Korea, the Korean War of 1950-1953, and the Cold
War position of North Korea as a member of the Soviet camp no doubt partially
explain the current situation. Unlike Eastern Europe, Russia, and to a large
extent, China, North Korea, even more so than Cuba, has not yet come in out of
the cold. [FN483]
The question presents itself whether, when
North Korea says it wants a non-aggression pact and economic support, [FN484]
it might mean what it is saying. If the
United States were willing to bring North Korea under the umbrella of its
economic and military systems, would the North Korean situation largely resolve
itself?
While North Korea is an arms proliferator,
exporting missiles to States unfriendly to the United States, such as Iran and
Libya, [FN485] it is not clear that North Korea's conduct is worse than that of
other States with which the United States maintains amicable relations. These states include Pakistan, with its
actual nuclear weapons and its ostensible permitting of actual exports of
nuclear weapons technology; [FN486] Saudi Arabia, ostensibly a major breeding
ground of international terrorism, including the 9/11 *1477 attacks; [FN487]
and Iraq in the 1980's with its actual use of chemical weapons against Iran and
the Kurds. [FN488]
With the end of the Cold War, the U.S.
military and the supporting industrial complex lost much of their reason for
being, at least at the level they were then constituted. The world appeared to be facing the prospect
of substantial demilitarization. This
diminution of the military appeared to be happening for a number of years, at
least to some extent. [FN489]
At the time of demilitarization, the thought
occurred to many that, if an enemy did not emerge, the industrial, military,
and political systems of the United States would find an enemy. [FN490] President Dwight D. Eisenhower had long previously
warned of the risks of the development of this kind of thinking. [FN491]
The United States' antagonism with Iraq
starting in the early 1990s seemed to have many of the earmarks of such a
contrived instigation of military antagonism.
Saddam Hussein had long been the friend and ally of the United States,
going back to the early 1980s. [FN492]
The United States supported him in many of *1478 his ventures, including
his 1980-1988 war against Iran. [FN493]
Indeed, it was revealed as recently as December 2003 that, during the
Reagan administration, the United States aided Iraq's war against Iran while
knowing Iraq was using chemical weapons on the Iranians, as well as on Kurdish
rebels. [FN494] It was revealed in
Iraqi transcripts of a meeting on July 25, 1990 between U.S. Ambassador Glaspie
and Saddam Hussein that Glaspie had signaled to Hussein that the United States
would not seriously object if Hussein invaded Kuwait. [FN495]
Similarly, there are numerous indications
that the United States' 2003 attack on Iraq was initiated without substantial
imminent need or justification and possibly on a contrived and preconceived
basis. [FN496]
If anything, the measured response of the
United States to North Korea's renewed nuclear weapons program could be read by
North Korea and other States as confirming the wisdom of acquiring such
weapons. The question remains whether
the United States would so readily have attacked Iraq in 2003 if Iraq possessed
nuclear weapons.
XII. NORTH KOREA'S POTENTIAL USE AND THREAT
OF USE OF NUCLEAR WEAPONS
Given that
North Korea, like any State, has a right of self-defense, may North Korea
resort to nuclear weapons for such self-defense? While there is some ambiguity it its decision, [FN497] the ICJ in
its Nuclear Weapons Advisory Decision determined that the exercise of
self-defense is subject to humanitarian law: "[A] use of force that is
proportionate under the law of self-defence, must, in order to be lawful, also
meet the requirements of the law applicable in armed conflict which comprise in
particular the principles and rules of humanitarian law." [FN498]
The ICJ further noted that if a weapon is
unlawful, the fact *1479 that it is used for lawful self-defense or other
lawful purpose does not immunize the unlawfulness:
39. [Articles 51 and 42] do not refer to specific weapons. They
apply to any use of force, regardless of the weapons employed. The Charter
neither expressly prohibits, nor permits, the use of any specific weapon,
including nuclear weapons. A weapon that is already unlawful per se, whether by
treaty or custom, does not become lawful by reason of its being used for a
legitimate purpose under the Charter. [FN499]
Thus, the question, which was not reached by
the Court, becomes whether the use of nuclear weapons is potentially lawful in
any circumstance? For the reasons set
forth above, I submit that the use of nuclear weapons would be unlawful in
virtually any situation, given their extreme destructiveness and the
uncontrollability of their effects.
If the use of nuclear weapons is unlawful, it
would appear that the threat of such use is also unlawful. The ICJ in the Nuclear Weapons Advisory Case
stated the rule as to threats as follows: "If an envisaged use of weapons
would not meet the requirements of humanitarian law, a threat to engage in such
use would also be contrary to that law." [FN500]
The Court further appeared to find that the
policy of deterrence, and indeed possibly even the mere possession of nuclear
weapons, would be unlawful if the actual use of the nuclear weapons would be
unlawful. The Court stated:
47. In order to lessen or eliminate the risk of unlawful attack,
states sometimes signal that they possess certain weapons to use in
self-defence against any state violating their territorial integrity or
political independence. Whether a
signaled intention to use force if certain events occur is or is not a
"threat" within Article 2, paragraph 4, of the Charter depends upon
various factors. If the envisaged use
of force is itself unlawful, the stated readiness to use it would be a threat
prohibited under Article 2, paragraph 4. *1480 Thus it would be illegal for a
state to threaten force to secure territory from another state, or to cause it
to follow or not follow certain political or economic paths. The notions of "threat" and
"use" of force under Article 2, paragraph 4, of the Charter stand
together in the sense that if the use of force itself in a given case is
illegal - for whatever reason - the threat to use such force will likewise is
illegal. In short, if it is to be lawful, the declared readiness of a state to
use force must be a use of force that is in conformity with the Charter. For the rest, no state - whether or not it
defended the policy of deterrence - suggested to the Court that it would be
lawful to threaten to use force if the use of force contemplated would be
illegal.
48. Some states put forward the argument that possession of
nuclear weapons is itself an unlawful threat to use force. Possession of nuclear weapons may indeed
justify an inference of preparedness to use them. In order to be effective, the
policy of deterrence, by which those states possessing or under the umbrella of
nuclear weapons seek to discourage military aggression by demonstrating that it
will serve no purpose, necessitates that the intention to use nuclear weapons
be credible. Whether this is a
"threat" contrary to Article 2, paragraph 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 any of these
circumstances the use of force, and the threat to use it, would be unlawful
under the law of the Charter. [FN501]
The United States in its appearances before
the Court did not dispute the unlawfulness of a threat to commit an unlawful
act and indeed appeared to recognize that the policy of deterrence constitutes
a threat to use nuclear weapons. U.S.
lawyer Michael J. Matheson, in his oral argument to the Court, stated:
[E]ach of the Permanent Members of the Security Council has made
an immense commitment of human and material resources to acquire and maintain
stocks of nuclear weapons and their delivery systems, and many other States
have decided to rely for their security on these nuclear capabilities. If these weapons could not lawfully be used
in individual or *1481 collective self-defense under any circumstances, there
would be no credible threat of such use in response to aggression and deterrent
policies would be futile and meaningless.
In this sense, it is impossible to separate the policy of deterrence
from the legality of the use of the means of deterrence. Accordingly, any
affirmation of a general prohibition on the use of nuclear weapons would be
directly contrary to one of the fundamental premises of the national security
policy of each of these many states. [FN502]
XIII. WISDOM OF U.S. POLICY OF NUCLEAR
DETERRENCE
Because of
its own nuclear program and policy of deterrence, the United States is in the
continuing position of legitimizing nuclear weapons--and hence inevitably
legitimizing them in the hands of North Korea and other States. A better course for the United States would
be to recognize the unlawfulness of nuclear weapons and to start the process of
de-legitimizing nuclear weapons.
While progress in the development of
international law is reflected in the fact that biological and chemical weapons
have been largely banned by international convention and ostensibly by
international customary law, [FN503] it cannot be said pragmatically that these
bans have been effectively implemented.
Not only is it believed that there are at least sixteen States currently
having chemical weapons and eight States having biological weapons, as well as
numerous additional States readily capable of acquiring them, [FN504] but also
the United States, through the current Bush administration, has resisted the
imposition of an inspection regime on the Biological Weapons Convention [FN505]
and, through numerous administrations, has ostensibly circumvented both the
Biological and Chemical Weapons Conventions. [FN506]
*1482 It seems unrealistic to expect that the
States of the world will ever agree to an effective ban on chemical and
biological weapons as long as the United States is supporting--indeed
asserting--the legitimacy of nuclear weapons.
This leads to a dangerous world, ostensibly
more dangerous than the Cold War world, given the loss of coherency and control
imposed by the Cold War strategic situation.
Biological and Chemical weapons are extremely dangerous. Some credible
sources have concluded that, in circumstances favorable to the attacker,
biological weapons have the potential to cause as much injury as nuclear
weapons. [FN507] A small amount of a toxin
or virus could poison substantial portions of the population of any U.S. city
through only a few droplets placed in the water supply or through aerosol
sprayed into the air. [FN508]
The underlying technical information as to
biological and chemical weapons, including information as to ingredients and to
production technology-- is more available and much less complex than that for
nuclear weapons. [FN509] The underlying
materials, many of which have other innocent applications, are *1483 likewise generally
more available, [FN510] and the prerequisites for acquiring, implementing, and
setting up the necessary production facilities and processes are less daunting.
[FN511]
Biological and chemical weapons programs are
also less expensive, [FN512] smaller, [FN513] less technically intensive,
[FN514] and easier to disguise. [FN515]
Because of such factors and also the greater proliferation that has
already occurred, as well as the number of the States possessing such weapons,
and the number of times such weapons have actually been used, [FN516] the risks
of biological and chemical weapons proliferation are substantial, from States,
the *1484 black market, terrorist organizations, and other criminal sources.
[FN517] Because they are lighter and
smaller, bacteriological and chemical weapons are also easier to deliver.
[FN518]
It is noteworthy that the fundamental reason
biological and chemical weapons have been outlawed by convention is the vast
destructiveness to human life and the uncontrollability of their effects.
[FN519]
The U.S. policy of legitimizing nuclear
weapons, and inevitably biological and chemical weapons, would appear to be
contrary *1485 to the national interest of the United States, certainly more so
in the current era than during the Cold War.
In the Cold War era, the United States
permitted itself to be in an inferior position to the Soviets in terms of
conventional weapons and resorted to nuclear weapons to redress the balance.
[FN520] In the current era, the United
States has overwhelming conventional weapons superiority and is facing the
threat of nuclear weapons from militarily-inferior nations. [FN521]
XIV. IRONY
THAT NUCLEAR WEAPONS, IN THE NUCLEAR WORLD NOW FAVORED BY THE UNITED STATES,
COULD BE LAWFUL FOR NORTH KOREA WHILE BEING UNLAWFUL FOR THE UNITED STATES
As noted
above, North Korea, as an economic justification for its nuclear weapons
program, relied upon the fact that possessing *1486 nuclear weapons will enable
it to avoid greater expenditures for conventional weapons, thereby enabling it
to commit more of its resources to civilian needs. [FN522] Ironically, the
United States gave this same economic justification for its nuclear weapons
program during the Cold War, as it permitted the Soviet Union to become more
powerful in conventional weapons and relied on nuclear weapons for defense and
deterrence. [FN523]
However, there is an emerging issue in
international law as to whether, under such rules as discrimination, necessity,
and proportionality, a State may intentionally forswear development and
procurement of a reasonably available less destructive and more discriminating
weapon and then use a more destructive and blunderbuss weapon, in circumstances
where the lesser weapon would have been sufficient had it been available.
The issue has recently come up in the context
of high-tech smart weapons the United States has used in its most recently
military engagements, including in the Iraq and Kosovo conflicts. Specifically, the question has become
whether the United States, or other States in similar situations, may lawfully
use old-fashioned dumb weapons for missions that could be accomplished through
the use of smart weapons, with appreciably less risk of collateral injury to
protected persons and objects. [FN524]
The point is established beyond question that
a State may not use nuclear weapons if the use of conventional weapons *1487
would suffice to accomplish the military mission. [FN525] Given that the rule of necessity is a rule
of reason, [FN526] to be applied based upon an objective consideration of all
available facts, [FN527] it would seem that a State has an obligation, to the
extent feasible, to maintain sufficient conventional weapons as not to run the
risk of bring upon itself the necessity to use nuclear weapons when
conventional weapons would have sufficed. [FN528]
This becomes a very significant legal point
in the real world. Given the capability
of today's high-tech nuclear weapons, the United States is essentially in the
position of being able to achieve with conventional weapons virtually any
military mission for which it might previously have felt the need to resort to
nuclear weapons. [FN529]
The same is not true of North Korea. With the United States as its enemy, North
Korea is ostensibly in a position *1488 whereby, even if it spent every last
penny of its national budget on conventional weapons, leaving nothing for
civilian purposes, it would be unable to defend itself with conventional
weapons against the United States. [FN530]
On such a basis, the use of nuclear weapons, if it is ever potentially
lawful, as the United States asserts, could arguably be lawful for North Korea,
but not for the United States. [FN531]
This, in a sense, dramatizes the tragic
dimension of the current Bush administration's nuclear adventurism, threatening
specific States, including China, Iran, Iraq, Libya, North Korea, Russia, and
Syria, with nuclear attack and preparing contingency plans to attack them,
while expanding its nuclear arsenal and lowering the threshold as to the
circumstances in which it would use such weapons: [FN532] The United States is legitimizing weapons--
virtually assuring their proliferation--that the United States does not need
and would likely never use, but which certain other States and organizations
might well use against us. Rather than
genuinely trying to curtail these weapons, the United States is taking the risk
of legitimizing its own destruction.
The tragedy is the squandering of a hegemony
that could be directed towards the construction of a safer world for one and
all.
CONCLUSION
Given North
Korea's repressiveness, economic desolation, weapons proliferation practices, and
hostility to the United States, a nuclear North Korea is of great concern. Circumstances are readily imaginable in
which North Korea might sell *1489 or barter nuclear weapons and/or related
equipment, materials and know-how to terrorist States and groups.
Nuclear weapons are extremely dangerous and
are and should be unlawful. The United
States' legitimization of these weapons flies in the face of the law of armed
conflict and is against the United States' own interest. Nonetheless, as long as the United States
advocates the lawfulness of the use of these weapons and follows the policy of
nuclear deterrence, the United States will be in no position to object on legal
grounds to North Korea's nuclear program and policy of deterrence or that of other
States or adversary groups with nuclear ambitions.
The threat posed by the nuclear weapons
regime propagated by the United States is intertwined with the threat posed by
biological and chemical weapons. As
long as the United States legitimizes nuclear weapons, biological and chemical
weapons, the "poor Nation's nuclear weapons," will be de facto
legitimized.
An opportunity may be present to bring North
Korea into a more productive relationship with the family of nations. There is no reason to maintain this
remaining vestige of the Cold War and every reason to throw North Korea the
lifeline that may form the catalyst for transforming its society.
The United States must find the wisdom to
overcome the forces of militarization warned of by President Eisenhower. Whatever truth may be present in the
suggestion that our military industrial system seeks to expand itself and find
occasions for the use of force must be faced and this tendency put under control.
The United States should recognize the
unlawfulness of the use and threat of use of nuclear weapons and embark on the
process of de-legitimizing them. While the process will likely take decades and
be challenging, with effort progress can be made. Absent effort, it seems inevitable that proliferation and the
related risks will increase.
[FNa1].
Adjunct Professor, Fordham University School of Law. Professor Moxley is an attorney practicing in New York City,
author of Nuclear Weapons and International Law in the Post Cold War World (2000),
and principal author of the Report of the Foreign and Int'l Law Committee of
the New York County Lawyers' Association, On the Unlawfulness of the Use and
Threat of Use of Nuclear Weapons, Sept. 11, 2000, available at http://
www.nycla.org/NuclearWeaponssept2000.pdf (last visited Apr. 4, 2004). Professor
Moxley is a member of the board of directors of the Lawyers' Committee for
Nuclear Policy ("LCNP").
Professor Moxley acknowledges and thanks
Fordham Law School students Lissa Schaupp, Frank Raimond, and Michael Yim, and
New York attorney Brian J. McBreen for their extraordinary help in the
researching and drafting of this Article.
[FN1].
Advisory Opinion No. 95, Legality of the Threat or Use of Nuclear Weapons, 1996
I.C.J. 95, pt. VI, 35-36 (July 8, 1996) (question presented to the Court by
U.N. General Assembly resolution 49/75 K, adopted on Dec. 15, 1994), available
at
http://212.153.43.18/icjwww/icases/iunan/iunanframe.htm [hereinafter
Nuclear Weapons Advisory Opinion]. The
Court's decision and all but five of the fourteen individual opinions in the
case are available at 35 I.L.M. 809 (1996).
The remaining five, the declarations of Judges Bedjaoui, Herczegh, and
Bravo and the individual opinions of Judges Guillaume and Ranjeva, appear at 35
I.L.M. 1343 (1996).
[FN2]. See
Joint Declaration by South and North Korea of the Denuclearization of the
Korean Peninsula, Jan. 20, 1992, S. Korea-N. Korea, IAEA Doc. GOV/INF/660,
Attachment (1992), 33 I.L.M. 569 (1994) [hereinafter Joint Declaration].
[FN3]. See
Agreed Framework to Negotiate Resolution of the Nuclear Issue on the Korean
Peninsula, S. Korea-U.S., Oct. 21, 1994, 34 I.L.M. 603 (1995), available at
http://www.kedo.org/pdfs/AgreedFramework.pdf (last visited Apr. 20, 2004)
[hereinafter Agreed Framework].
[FN4]. See
Joint Declaration, supra note 2, at sec. 1.
[FN5]. See
id. at secs. 2-3.
[FN6]. See
Agreed Framework, supra note 3, pt. III(1); see also Larry A. Niksch, North Korea's
Nuclear Weapons Program, Congressional Research Service Issue Brief for
Congress, IB91141, available at http://
www.fas.org/spp/starwars/crs/IB91141.pdf (last visited April 6, 2004). The Agreed Framework represented an
accommodation between Democratic People's Republic of Korea ("North
Korea" or "DPRK") and the United States following North Korea's
threat to withdraw from the Treaty on the Non-Proliferation of Nuclear Weapons
on March 12, 1993. See id. at 10; see also Treaty on the Non-Proliferation of
Nuclear Weapons, opened for signature July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S.
161 [hereinafter NPT].
[FN7]. See
Charles J. Moxley, Jr., Nuclear Weapons and International Law in the Post Cold
War World 563-64, n.11 (2000). This
financing is orchestrated through the Korean Peninsula Energy Development
Organization ("KEDO"). See KEDO: Promoting Peace and Stability on the
Korean Peninsula and Beyond, at http://www.kedo.org/index.asp (last visited
Apr. 7, 2004).
[FN8]. See
Agreed Framework, supra note 3, at pt. IV(1).
[FN9]. See
NPT, supra note 6.
[FN10]. The
five identified nuclear weapons States are China, France, Russia, the United
Kingdom, and the United States. See Arms Control Fact Sheet: "The Nuclear
Nonproliferation Treaty at a Glance" (Jan. 2003), available at
http://www.armscontrol.org/pdf/npt.pdf (last visited Apr. 7, 2004). The five nuclear weapons States are the five
permanent members of the United Nations Security Council. See U.N. Charter art.
23, para. 1.
[FN11]. See
NPT, supra note 6, art. VI.
[FN12]. See
id. art. I.
[FN13]. See
id. art. II; see also U.S. Dept. of State, Bureau of Nonproliferation, Treaty
on the Non-Proliferation of Nuclear Weapons, History, at
http://www.state.gov/t/np/trty/16281.htm (stating that Iran, Iraq, and North
Korea have all failed their obligations under NPT at one time or another) (last
visited Apr. 7, 2004) [hereinafter History of NPT].
[FN14]. See
Detailed Report on Circumstances of DPRK's Withdrawal from NPT, Korean Central
News Agency of Democratic People's Rep. of Korea, Jan. 23, 2003, available at
http://www.kcna.co.jp/item/2003/200301/news01/23.htm#1 (last visited Apr. 7,
2004) [hereinafter KCNA Detailed Report].
U.S. nuclear weapons were withdrawn from the Republic of Korea
("South Korea") in late 1991. See Niksch, supra note 6, at 9. This was one of several actions taken by the
first Bush administration aimed at securing North Korea's adherence to the NPT.
See id.
[FN15]. See
KCNA Detailed Report, supra note 14.
[FN16]. The
International Atomic Energy Association ("IAEA"), which was created
by the statute of the Atomic Energy Agency, 8 U.S.T. 1093 (1957), is
responsible for verifying that the parties to the NPT are complying with its
terms. See History of NPT, supra note 13.
[FN17]. The
Team Spirit exercises were military drills held annually from 1976 until 1994,
when they were suspended as part of the Agreed Framework. See South Korean
Ministry Says Military Exercise Can be Revived at "Anytime", BBC
Worldwide Monitoring, May 3, 1999.
[FN18]. The
South Korean Ministry of Defense characterized these exercises as defensive and
contended that North Korean allegations of the offensive nature of the
exercises are unfounded; North Korea was reportedly invited to send representatives
to attend as observers. See Ministry of National Defense, Republic of Korea,
Military Exercises, available at http://
www.mnd.go.kr/cms.jsp?p_id=01918010000000 (last visited Apr. 7, 2004).
[FN19]. See
Democratic People's Republic of Korea-International Atomic Energy Agency:
Agreement for the Application of Safeguards in Connection with the Treaty on
the Non-proliferation of Nuclear Weapons, 33 I.L.M. 315 (1994); INFCIRC/403,
May 1992 [hereinafter Safeguards Agreement].
Under the 1992 Safeguards Agreement, North Korea was required to report
all nuclear programs to the IAEA and allow IAEA access to conduct inspections
of North Korean nuclear installations and programs. See Niksch, supra note 6,
at 10.
[FN20]. See KCNA
Detailed Report, supra note 14.
[FN21]. See
id.
[FN22]. See
id.
[FN23]. See
id.; see also Democratic People's Republic of North Korea, Statement Regarding
Withdrawal from the NPT, Jan. 10, 2003, available at
http://www2.law.columbia.edu/course_00S_L9436_001/materials%20North%
20Korea.shtml.
After
withdrawing from the NPT, North Korea began reprocessing the 8,000 spent fuel
rods that had been under IAEA safeguards. See Ted Galen Carpenter, Outside
View: Illusions on N. Korea Nukes, United Press Int'l, Oct. 8, 2003, available
at http://www.upi.com/view.cfm?StoryID=20031008-050533-1217r.
On March 12,
1993, North Korea threatened withdrawal from the NPT after the IAEA invoked its
special inspection rights in response to finding that North Korea had
reprocessed more plutonium than the 80 grams it had disclosed to the IAEA
pursuant to the terms of its 1992 safeguards agreement. See Niksch, supra note
6, at 10.
[FN24]. See
Fredric L. Kirgis, North Korea's Withdrawal from the Nuclear Nonproliferation
Treaty, ASIL Insights, Jan. 2003, available at http://
www.asil.org/insights/insigh96.htm.
[FN25]. See
KCNA Detailed Report, supra note 14 (stating that, according to Agreed
Framework, United States was to have provided North Korea with light-water
reactor power plants ("LWRs"), but that thus far only basic site
preparations have been made in LWR project).
[FN26]. See
KCNA Detailed Report, supra note 14 (stating that on November 14, 2002, Bush
administration decided to suspend December 2002 HFO shipments, abandoning last
commitment it had been honoring in Agreed Framework).
[FN27]. See
id.
[FN28]. See
id.
[FN29]. See
id.
[FN30]. See
DPRK, KCNA's 12 May 'Detailed Report' Says US 'Ruptured' Denuclearization
Process, Korean Central News Agency ("KCNA"), May 12, 2003,
translated in Federation of American Scientists: North Korea Nuclear Weapons
Program, Apr. 24, 2003, available at http://
www.fas.org/nuke/guide/dprk/nuke/dprk051203.html [hereinafter DPRK Says U.S.
'Ruptured' Process]; see also DPRK, U.S. to Blame for Derailing Process of
Denuclearisation on Korean Peninsula, KCNA, May 13, 2003, available at http://
www.kcna.co.jp/item/2003/200305/news05/13.htm#1.
[FN31]. See
KCNA Detailed Report, supra note 14.
[FN32]. See
DPRK 'Nuclear Deterrent Force' To Be Built If US Maintains 'Hostile Policy',
KCNA, Jun. 3, 2003, available at http://
www.fas.org/nuke/guide/dprk/nuke/dprk060903.html [hereinafter DPRK Radio
Statement] (translating Statement on P'yongyang Korean Central Broadcasting
Station); see also infra notes 63-70 and accompanying text.
[FN33]. See
DPRK Says U.S. 'Ruptured' Process, supra note 30.
[FN34]. See
id.
[FN35]. See
Dick K. Nanto, North Korea: Chronology of Provocations, 1950- 2003, Congressional
Research Service Report for Congress, RL30004, at 24, available at
http://www.fas.org/man/crs/RL30004.pdf (last visited Apr. 8, 2004) (reporting
that on October 17, 2002 North Korea admitted to U.S. envoy James Kelly that it
was pursuing nuclear weapons program and that statement was confirmed later by
North Korean U.N. delegate).
Information for the CRS Report was taken from South Korean and Western
sources and generally is denied by the North Korean government. See Visit to
Yongbyon Nuclear Scientific Research Center in North Korea: Hearing Before the
Senate Comm. on Foreign Relations, 9 (Jan. 21, 2004), available at
http://www.fas.org/irp/congress/2004_ hr/012104hecker.pdf [hereinafter Hecker
Statement] (providing statement of Siegfried S. Hecker, Senior Fellow, Los
Alamos National Laboratory and reporting that Ambassador Li and Vice Minister
Kim "stressed that the DPRK now has a nuclear deterrent and that U.S.
actions have caused them to strengthen their deterrent.").
[FN36]. See
Senate Comm. on Foreign Rel., 108th Cong., North Korea: Status Report on
Nuclear Program, Humanitarian Issues, and Economic Reforms vii (Comm. Print
2004), available at http://
www.access.gpo.gov/congress/senate/senate11cp108.html (reporting that in
discussions with Foreign Ministry officials on the North's nuclear program
following a U.S. delegation's visit to Yongbyon, "Vice Foreign Minister
Kim Gye-gwan claimed that, unlike Iran and Libya, North Korea actually has
weapons of mass destruction[,]" and that North Korea had provided the
United States with evidence of their "nuclear deterrent"); see also
Federation of American Scientists, North Korea Special Weapons Guide: Nuclear
Weapons Program, Current Status, Apr. 24, 2003, available at http:// www.fas.org/nuke/guide/dprk/nuke/index.html
(stating that North Korean officials admitted for first time that they
possessed nuclear weapons in roundtable discussion with United States and China
in Beijing on April 24, 2003); George Edmonson, North Korea Warns U.S. it has Nukes,
Atlanta J. Const., Apr. 25, 2003, at A1 (citing Washington Post as reporting
that top North Korean negotiator pulled Kelly aside and "in effect, told
him, 'We've got nukes"'); N. Korea 'admits having nukes', CNN.com, Apr.
25, 2003, available at http://
www.cnn.com/2003/WORLD/asiapcf/east/04/24/nkorea.us/ (reporting that Bush
administration sources told CNN than North Korea admitted to having at least
one nuclear bomb); Niksch, supra note 6, at 1 (reporting that North Korean Vice
Foreign Minster Kang Sok-ju reportedly not only admitted existence of North
Korea's uranium enrichment program, but also told Kelly that it possesses
"more powerful" weapons).
[FN37]. See
Niksch, supra note 6, at 1 (reporting that North Korea denies that any
admissions were made by Vice Foreign Minster Sok-ju to Kelly); see also N.
Korea 'admits having nukes', supra note 36 (reporting that North Korea denies
having made such admission and says United States is using it as justification
for military action).
[FN38]. See
David E. Sanger, North Korea Says It Has Made Fuel For Atom Bombs, N.Y. Times,
July 15, 2003, at A1 (reporting that North Korean officials told Bush
administration that they had produced enough plutonium to make six nuclear
bombs and that they intended to move ahead quickly to turn material into
weapons); see also Andrew Ward, Musharraf Retains Ties with N. Korea Despite
Nuclear Scandal, Fin. Times (London), Feb. 19, 2004, at 7 (Asia-Pacific)
(reporting that North Korea offered to freeze its plutonium-based program in
return for compensation from the United States); Niksch, supra note 6, at
2-3.
[FN39]. See
Hecker Statement, supra note 35, at 11 (reporting that officials of North
Korean Ministry of Foreign Affairs stated categorically that North Korea has no
program for enriching uranium and no equipment or scientific expertise to do
so). See also Ward, supra note 38, at 7
(stating that "Pyongyang's denials that it possesses an HEU (highly
enriched uranium) programme have emerged as a serious obstacle to the
diplomatic process because the United States will not accept any settlement to
end the nuclear crisis unless it includes dismantlement of the uranium
enrichment facilities"); North Korea May Complete Uranium Program in 1-2
Years, Korea (Seoul) Times, Jan. 27, 2004 (stating that "[t]he U.S.,
however, does not seem to have hard evidence on the North Korean HEU program,
although it is strongly pressuring North Korea to come clean on the issue at
the next six-party talks"). North Korean Vice Minister Kim Gye Gwan has
reportedly stated that North Korea has no HEU program and has chosen the
plutonium path to a deterrent. See Hecker Statement, supra note 35, at 10; see
also Charles L. "Jack" Pritchard, What I Saw in North Korea, N.Y.
Times, Jan. 21, 2004, at A27. Jack
Pritchard was a member of the January 2004 unofficial delegation to North Korea
with Hecker.
The United
States' position is that North Korea has stated that it has a HEU program, and
that the program does in fact exist. See Niksch, supra note 6, at 1. On October 16, 2002, the second Bush
administration disclosed that North Korea revealed to U.S. Assistant Secretary
of State James Kelly in Pyongyang that North Korea was developing a secret
nuclear weapons program based on uranium enrichment. See id. According to the Niksch report, North Korea
began its clandestine uranium enrichment program after 1995 with assistance
from Pakistan. See id.
[FN40]. The
CIA estimates that North Korea produced one or two nuclear weapons in the early
1990's prior to the Agreed Framework. See Jon Wolfsthal, The Intelligence
'Black Hole' over North Korea, BBC News, July 17, 2003, available at
http://news.bbc.co.uk/1/hi/world/asia-pacific/3073677.stm; Sharon A. Squassoni,
North Korea's Nuclear Weapons: How Soon An Arsenal?, Congressional Research
Service Report for Congress 4, RS 21391, available at
http://www.fas.org/spp/starwars/crs/RS21391.pdf (quoting Secretary of State
Powell as saying that "[w]e now believe they [North Koreans] have a couple
of nuclear weapons and have had them for years"); see also Untitled CIA
Estimate Provided to Congress on Nov. 19, 2002, available at http://
www.fas.org/nuke/guide/dprk/nuke/cia111902.html (estimating that North Korea
has had one or two plutonium bombs since 1992) [hereinafter Untitled CIA
Estimate]; Niksch, supra note 6, at 8 (stating that U.S. National Intelligence
Council issued revised finding in December 2001, that North Korea possessed
one, possibly two nuclear weapons); David E. Sanger, Pakistani Says He Saw
North Korean Nuclear Devices, N.Y.
Times, Apr. 13, 2004, at A12 [hereinafter Sanger, North Korean Nuclear
Devices].
[FN41]. See
Niksch, supra note 6, at 8 (reporting that in August 2001, Secretary of Defense
Donald Rumsfeld stated that "North Korea possessed enough plutonium to
produce two to three, maybe even four to five nuclear warheads").
Rumsfeld's estimate is the largest official U.S. estimate as to the possible
number of North Korean nuclear weapons. See id.; see also Director of Central
Intelligence ("DCI"), U.S. Central Intelligence Agency
("CIA"), Unclassified Report to Congress on the Acquisition of
Technology Relating to Weapons of Mass Destruction and Advanced Conventional
Munitions, Jan. 1 through June 30, 2001, available at http://www.cia.gov/cia/reports/721_reports/jan_
jun2001.htm#5 (stating that during period of January 1, 2001 to June 30, 2001,
North Korea continued procurement of raw materials and components for its
ballistic missile program from various foreign sources, especially North Korean
firms based in China, and that North Korea has produced enough plutonium for
one to two nuclear weapons). An
unclassified CIA paper from November 2002 stated that the assessment that North
Korea has enough plutonium for one or two weapons has not changed since the
1990's. See Squassoni, supra note 40, at 4 (citing CIA unclassified paper on
North Korea dated November 19, 2002).
There is a
general consensus that North Korea has the technology to produce plutonium,
that it did so at least in small quantities in the 1980's and 1990's, and is
likely doing so now. But estimates vary
as to how much plutonium they can currently produce. See Wolfsthal, supra note
40.
North
Korea's nuclear plant at Yongbyon reportedly can produce enough plutonium for
one nuclear weapon a year. See id. In
1989 North Korea shut down the plant for over two-months, giving North Korea
enough time to have removed the plutonium-containing fuel from the facility and
extracted enough plutonium for one weapon.
However,
North Korea admits to having purified only 100 grams of plutonium during this
time, well short of the four kilograms required for a nuclear weapon. See
id. Wolfsthal points out that samples
from the plutonium produced suggest that North Korea's statements are not a complete
picture of their nuclear program prior to the reinstatement of nuclear
inspections in 1992. See id.
Under the
1994 Agreed Framework, North Korea shut down its Yongbyon nuclear plant and
removed the 8000 spent fuel rods from the five MWe reactor. See Agreed
Framework, supra note 3; see also Hecker Statement, supra note 35, at 6. The 8000 rods were placed under IAEA
monitoring in exchange for two LWRs, to generate electricity and an interim
supply of heavy fuel oil until the first reactor is complete. See Agreed
Framework, supra note 3. The process of
removing the rods was not completed until June 2000. See Hecker Statement,
supra note 35, at 6. In December 2002,
the IAEA inspectors were dismissed by North Korea and no one else has had
access to the 8000 rods since. See id. North Korean officials stated to Hecker
that they removed all 8000 fuel rods from the spent fuel storage pool and
shipped them to the Radiochemical Laboratory, a plutonium reprocessing
facility. See id. They stated that they
reprocessed all 8000 spent rods in a continuous campaign from mid-January 2003
to June 2003. See id. Hecker confirmed
that the rods were no longer in the spent fuel pool. See id. The Radiochemical Laboratory confirmed that
North Korea possesses an industrial-scale reprocessing facility in good repair.
See id. at 7.
Gary Samore,
a former deputy to the chief negotiator of the 1994 Agreed Framework, concluded
that North Korea's nuclear capacity could increase greatly in over the next several
years to the point where it might be able to produce eight to thirteen warheads
a year. See North Korea May Complete Uranium Program, supra note 39.
[FN42]. In
June 2003, U.S. satellites collected inconclusive evidence that krypton-85, a
gas released during reprocessing, was being emitted from secret development
facilities located near the Chinese border. See David E. Sanger, Intelligence
Snarl over North Korea, Int'l Herald Trib., Oct. 15, 2003, available at
http://www.iht.com/articles/113591.html.
In early 2003, U.S. spy satellites observed rods being taken away from a
storage shed, but it is unclear where they were being taken. See id.; see also
Wolfsthal, supra note 40; Squassoni, supra note 40 (stating that tests to
detect krypton-85 were initially inconclusive but eventually suggested that
some reprocessing had taken place). Kim
Dae Ho, who worked on the North Korea nuclear program for ten years until
defecting in 1994, stated that the hardest part of hiding the nuclear
processing plant from IAEA "was preventing the release of tell-tale
krypton into the atmosphere." Jasper Becker, Building the Bomb: North
Korean Exile Reveals 15 Year History of Nuclear Cheating, Indep., Feb. 11,
2004.
[FN43]. See
supra note 41 (providing support for U.S. inferences about North Korea's
nuclear program).
[FN44]. See
Sanger, North Korean Nuclear Devices, supra note 40. Dr. Khan, after leading the development of the Pakistani nuclear
weapons, embarked on a program of selling nuclear technology throughout the
world, including to North Korea.
According to Asian and American officials who have been briefed by the
Pakistanis, Dr. Khan recently disclosed under Pakistani interrogation that on a
trip to North Korea five years ago he was taken to a site approximately an hour
out of the North Korean capital and shown "what he described as three
nuclear devices." Id. See also
supra note 36 and accompanying text.
Pakistan has
conducted six nuclear tests and claims weapon yields as high as thirty-six
kilotons ("kt"), although the Southern Arizona Seismic Observatory
reports that they were more likely in the range of nine to twelve kt. See Federation of American Scientists,
Pakistan Nuclear Weapons: A Brief History of Pakistan's Nuclear Program, at
http://www.fas.org/nuke/guide/pakistan/nuke (Dec. 11, 2002).
[FN45]. See
Untitled CIA Estimate, supra note 40.
Information on North Korea's nuclear weapons production is dependent
largely upon remote monitoring and defector information and has had mixed
results. See Squassoni, supra note 40, at 6.
[FN46]. See
Untitled CIA Estimate, supra note 40.
[FN47]. See
John M. Donnelly, North Korea 'Validates' Its A-Bomb Designs, Def. Week, Nov.
10, 2003. There is dispute as to the
significance of the fact that North Korea has not tested a nuclear weapon. The CIA has reportedly concluded that it is
not necessary for a country to test a nuclear weapon design in order to
validate it and has reported that North Korea has conducted certain
high-explosive conventional tests that could have served to validate its
nuclear weapons program. Georgy Kaurov,
Press Secretary of the Russian Atomic Energy Ministry, however, has stated,
"[i]f North Korea did have a nuclear bomb, it would have to have been
tested." Russia Rules out Possibility that Pyongyang has Nuclear Weapons,
BBC News, June 5, 1998. Such a test
would have been clearly visible from space. See id.
[FN48]. See
John Wolfsthal, Crying Wolf on Iraqi WMD Costs U.S. Credibility on North Korea,
Christian Sci. Monitor, Jan. 29, 2004; see also Stephen Collinson, U.S.
Credibility on North Korea on Line After Iraq Intelligence Fiasco, Agence
France-Presse, Feb. 1, 2004.
[FN49].
Russia Rules out Possibility that Pyongyang has Nuclear Weapons, supra note
47.
[FN50]. See
generally Hecker Statement, supra note 35, at 3.
[FN51]. See
id.; see also Pritchard, supra note 39.
[FN52]. See
Hecker Statement, supra note 35, at 3; see also Pritchard, supra note 39.
[FN53]. See
Hecker Statement, supra note 35, at 3; see also Pritchard, supra note 39.
[FN54]. See
Hecker Statement, supra note 35, at 11.
[FN55]. See
id. at 8, 10.
[FN56]. See
id. at 3; see also Pritchard, supra note 39.
[FN57].
Letter from Pak Gil Yon, Ambassador and Permanent Representative to the U.N., DPRK,
to Mohammed Sedjaoui, President, International Court of Justice (May 18, 1995),
available at http://
212.153.43.18/icjwww/icases/iunan/iunan_ipleadings/iunan_ipleadings_199506_
WriStats_01_Korea.pdf (last visited
Apr. 10, 2004) [hereinafter May 18, 1995 Letter].
[FN58].
Letter from Kim Yong Nam, Minister of Foreign Affairs, DPRK, to Bernard Noble,
Deputy-Registrar, International Court of Justice (Jan. 26, 1994), available at
http://212.153.43.18/icjwww/icases/ianw/ianw_ pleadings/ianw_ipleadings_199409_WriStats_02_Korea.pdf
(last visited Apr. 10, 2004) [hereinafter Jan. 26, 1994 Letter].
[FN59].
Id.
[FN60]. May
18, 1995 Letter.
[FN61]. See,
e.g., DPRK Says U.S. 'Ruptured' Process, supra note 30. See also Pyongyang Says Disarment Will Only
Lead to Invasion, Associated Press (Taiwan News), Mar. 19, 2005, available at
http:// www.etaiwannews.com/Asia/2004/03/19/1079661874.htm (reporting that
North Korea has restated its position that inspections and disarmament will
only lead to U.S. invasion, as is proven by U.S.-led invasion in Iraq).
[FN62]. DPRK
Says U.S. 'Ruptured' Process, supra note 30.
[FN63]. See
id.
[FN64]. See
id.
[FN65]. See
id.
[FN66]. See
id.
[FN67]. See
id.
[FN68]. See
DPRK Radio Statement, supra note 32. Upon
withdrawing from the NPT, North Korea considered itself free from IAEA
safeguards, stating that it now enjoyed "the same legal status as the
United States and other countries possessing nuclear weapons ...." Charles
Whelan, North Korea Admits Nuclear Weapons Drive, Blames Washington, Agence
France Presse, June 9, 2003, at Int'l News.
[FN69]. See
DPRK Radio Statement, supra note 32.
[FN70]. See
Niksch, supra note 6, at 1-2, 7; see also DPRK Says U.S. 'Ruptured' Process,
supra note 30. The North Korean
position is as follows:
[W]e
proposed several times to hold direct talks between the DPRK and the United
States and firmly insisted on settling the nuclear issue by concluding a
non-aggression treaty so as to by all means prevent the rupture of the process
of denuclearization of the Korean Peninsula even when maneuvers to abrogate the
DPRK-US Agreed Framework and scrap the North-South Joint Declaration of the
Denuclearization reached the extreme.
Id.; see
also Paul Kerr, U.S. and North Korea at Impasse Over Talks, Arms Control Today,
Jan./Feb. 2004, available at http://
www.armscontrol.org/act/2004_01-02/NK.asp.
North Korea wants the United States to "issue security assurances,
normalize bilateral diplomatic relations, refrain from hindering North Korea's
'economic cooperation with other countries' and increase food aid," in
addition to completing the nuclear reactor project and resuming the fuel
shipments promised under the Agreed Framework. See id.; see also Gady A.
Epstein & Mark Matthews, North Korea Lays out Nuclear Intent; Envoys at
Beijing Talks Told North Korea Will Test Bomb, Prove it Can Deliver One; U.S.:
'Exactly what we expected'; Diplomats from Russia, South Korea, Japan 'Taken
Aback'; Chinese 'Angry', Balt. Sun, Apr. 29, 2003, at 1A (reporting North Korea
seeks non-aggression pact from United States in return for abandoning its
nuclear weapons program); Edmonson, supra note 36.
North Korea
reportedly told a visiting delegation of congressional staffers in August 1998
that it would stop its ballistic missile sales to countries such as Iran in
exchange for U.S. compensation of U.S.$1 billion annually. See Niksch supra
note 6, at 8. In the April 2003 Beijing
talks, North Korea reportedly asked that the United States: 1) provide it with
energy, presumably electricity; 2) facilitate the completion of LWRs pursuant
to the terms of the Agreed Framework; 3) remove North Korea from the list of
terrorist countries; 4) establish full diplomatic relations with North Korea;
and 5) issue a written, legal security guarantee against either a nuclear or
conventional attack against North Korea. See Niksch, supra note 6, at 3. North Korea reportedly stated that in
exchange, it would dismantle its nuclear weapons program as the final step. See
id.
[FN71]. The
U.S. position on North Korea's nuclear program has evolved over time. When the CIA first identified the North
Korean nuclear program in the early 1980s, it did not treat the matter as cause
for concern, but rather focused on North Korea's energy concerns as the
rationale for its nuclear ambitions. See Robert A. Wampler, North Korea and
Nuclear Weapons: The Declassified U.S. Record, Apr. 25, 2003, available at
http://www.gwu.edu/~ nsarchiv/NSAEBB/NSAEBB87/.
The Reagan
administration passed on an opportunity to address this issue when China
approached the United States to broker direct talks between the United States
and North Korea. See id. Interestingly,
it was then-Assistant Secretary of State for East Asian and Pacific Affairs,
Paul Wolfowitz's ideological opposition to any Chinese Intervention that
prevented pursuit of the idea. See China Confidential: American Diplomats and
Sino-American Relations 1945-1996 (Nancy Bernkopf Tucker ed., 2001).
The first
Bush administration expressed concern over the developing North Korean nuclear
capacities in violation of the NPT and asked China to request that North Korea
abide by its commitments under the NPT regime. See id. Simultaneously, the
United States was also pressuring South Korea to give priority to
denuclearization as a requisite for Korean reunification. See id.
The Clinton
administration pursued a strategy of direct engagement with North Korea,
negotiating a number of international agreements, including the Agreed Framework
in 1994 in hopes of keeping the North Korean nuclear program in check via
diplomacy, international inspection, and regulatory regimes. See Agreed Framework, supra note 3; see also
Tyler Marshall, Threat from N. Korea is Growing GOP Warns; Security: Report,
Faulting Clinton Engagement Policy, Says Asian Nation Continues to Develop
Nuclear Capability, L.A. Times, Nov. 4, 1999, at A4.
The first
position the administration of President George W. Bush took towards the
nuclear weapons program of North Korea was an extensive period of policy
analysis, followed by a skeptical view of the utility of negotiation with North
Korea. See Seung-Hwan Kim, Anti-Americanism in Korea, 26 Wash. Q. 109
(2002).
This policy
of neglect was revised after North Korea restarted its nuclear reactor,
expelled IAEA inspectors, and withdrew from the NPT. Three months subsequent to its withdrawal, North Korea, in the
course of three-way talks with the United States and China, reportedly informed
Assistant Secretary of State James Kelly that it possessed nuclear weapons. See
supra notes 35-38 and accompanying text.
The current
Bush administration then chose a policy of confrontation over engagement,
referring to North Korea as a threat to the nonproliferation regime, while simultaneously
making it clear that it chose to address such problems with preemptive military
action. See Wade L. Huntley, Countdown on the North Korean Nuclear Crisis, 2
Strategic Insights 5, May 2003, available at
http://www.ccc.nps.navy.mil/si/may03/eastAsia.asp. Secretary of State Colin Powell, however, has stated that the
United States' principal focus is a negotiated--as opposed to
military--resolution to the confrontation. See Bureau of International Information
Programs, U.S. Dept. of State, U.S. Seeks Diplomatic Resolution for North
Korea, Powell Says, Jan. 11, 2004, at http://
usinfo.state.gov/regional/ea/easec/nkoreapg.htm.
North Korea
has enunciated a set of conditions for abandoning its nuclear weapons program.
See supra note 70 and accompanying text.
The Bush administration has responded that the United States is willing
to offer a written, multilateral security agreement, "in the context of
North Korea's complete and verifiable and irreversible dismantlement of its
nuclear weapons program." Kerr, supra note 70. The administration has recently indicated more flexibility
regarding whether North Korea must first dismantle all of its nuclear
facilities before an agreement can be reached. See id.
While the
United States has not enunciated clear criteria for a resolution of the
confrontation, it has stated that it is willing to provide multilateral
security arrangements, so long as North Korea begins dismantling its nuclear
weapons program. In February 2004, the
six parties met again to negotiate a resolution to the crises, but failed to
come to a settlement on the future of North Korea's nuclear program. See Andrew
Ward, North Korea Sees Little Hope of Ending Stalemate, Fin. Times, Mar. 1,
2004, at 7. The parties agreed to hold
a third round of talks in July and establish a permanent working group but
North Korea has expressed doubt as to the efficacy of talks in solving the
dispute over its nuclear weapons program. See id. The Bush administration has not clarified what North Korea would have
to do before security assurances would be provided. As to North Korea's demands for economic aid, the administration
has made it clear that it will not provide concessions until disarmament is
under way. See id.
At the same
time, the United States has taken steps to strengthen its strategic position
vis-a-vis North Korea. In April 2003,
Deputy Assistant Secretary of Defense for East Asian and Pacific Affairs
Richard Lawless, while meeting with his South Korean counterpart, announced the
United States' intention to reposition its forces, removing them from their
current position along the Demilitarized Zone ("DMZ") to south of the
Han river and moving U.S. military command in the region from Seoul to Osan.
See International Institute for Legal Studies, American Forces in South Korea:
The End of an Era?, 9 Strategic Comments 10, available at
http://www.iiss.org/stratcomfree.php? scID=277.
The military
has provided three rationales for this redeployment: 1) the need for South Korean
forces to take a more active role in defense of the DMZ; 2) the
"tripwire" conception of defense for the Korean Peninsula no longer
comports with reality, since, in a conflict with South Korea, North Korea would
most likely bypass traditional invasion corridors and attack with missiles and
Special Forces units, making defense of the DMZ of less importance; and 3) by
repositioning U.S. forces further south of the DMZ, it would make them more
mobile and more convenient for deployment to nearby areas where regional
conflicts are more likely. See id.
Along with this repositioning, the United States will provide technology
grants to the South Korean forces, upgrading their ground- and air-defense,
counter-battery fire, and airborne early warning capabilities. See id.
A
significant policy shift came in September 2003 when the current South Korean
administration decided to push for an end to the 1954 Armistice Agreement,
which previous South Korean governments saw as a linchpin to stability on the
peninsula, envisaging that the end of the Armistice would mean the United
States would be likely to withdraw its troops from South Korea. See South Korean Minister Says U.S. to
Address North Korean Security Concerns, BBC Monitoring Int'l Reports, Sept. 27,
2003.
[FN72].
Regarding North Korea and its nuclear weapons program, President George W.
Bush, in his 2003 State of the Union address, stated, "[N]uclear weapons
will bring only isolation, economic stagnation, and continued hardship. The North Korean regime will find respect in
the world and revival for its people only when it turns away from its nuclear
ambitions." President George W. Bush, State of the Union Address (Jan. 28,
2003), available at http://www.whitehouse.gov/news/releases/2003/01/20030128-19.html
[hereinafter 2003 State of the Union Address].
[FN73]. See,
e.g., Richard Boucher, Spokesman, U.S. Dept. of State Press Statement on North
Korea Nuclear Program (Oct. 16, 2002), available at http://
www.state.gov/r/pa/prs/ps/2002/14432.htm (stating that "North Korea's
secret nuclear weapons program is a serious violation of North Korea's
commitments under the Agreed Framework as well as under the Nonproliferation
Treaty (NPT), its International Atomic Energy Agency safeguards agreement, and
the Joint North-South Declaration on the Denuclearization of the Korean
Peninsula").
[FN74]. The
U.S. State Department merely stated that the North Korean withdrawal from the
NPT was "regrettable" and urged North Korea to dismantle its nuclear
weapons program. See N. Korea Move on inter-Korean Nuclear Accord
'Regrettable'--U.S. State Department, AFX European Focus, May 13, 2003. The United States may be taking this
position since it, unlike North Korea, espoused the legality of nuclear weapons
before the ICJ. See supra notes 57-60 and accompanying text (setting forth
North Korea's statements to ICJ as to the illegality of nuclear weapons); see
also infra notes 353, 371, 377, 397, 417, 430-31, 433, 447, 451, 461-63,
465-66, 477 and accompanying text (setting forth U.S. position before ICJ
espousing general legality of nuclear weapons).
[FN75]. This
may result from the similarity of North Korea's withdrawal from the NPT to the
United States' withdrawal, on December 13, 2001, from the Anti-Ballistic
Missile Systems Treaty that it signed with the Soviet Union in 1972. See Treaty
Between the United States of America and the Union of Soviet Socialist
Republics on the Limitation of Anti-Ballistic Missile Systems, May 26, 1972, 26
U.S.T. 1334, available at http:// www.state.gov/www/global/arms/treaties/abm/abm2.html
[hereinafter ABM Treaty]; see also America Withdraws from ABM Treaty, BBC News,
available at http:// news.bbc.co.uk/1/hi/world/americas/1707812.stm (Dec. 13,
2001).
Each of
these withdrawals from a leading international arms control treaty was based on
alleged changes in circumstances. As to
North Korea's alleged basis for withdrawal from the NPT, "[e]ach Party
shall in exercising its national sovereignty have the right to withdraw from
the Treaty if it decides that extraordinary events, related to the subject
matter of this Treaty, have jeopardized the supreme interest of its country
...." See NPT, supra note 6, at art. X; see also KCNA Detailed Report,
supra note 6. As to the United States'
alleged basis for withdrawal from the ABM Treaty, "[e]ach Party shall, in
exercising its national sovereignty, have the right to withdraw from this
Treaty if it decides that extraordinary events related to the subject matter of
this Treaty have jeopardized its supreme interests ...." Treaty on the
Limitation of ABM Systems and Interim Agreement and Protocol on the Limitation
of Strategic Offensive Arms, Oct. 3, 1972, U.S.-U.S.S.R., 944 U.N.T.S. 13, 11
I.L.M. 784; see also America Withdraws from ABM Treaty, supra note 75; Patricia
Hewitson, Nonproliferation and Reduction of Nuclear Weapons: Risks of Weakening
the Multilateral Nuclear Nonproliferation Norm 21 Berkeley J. Int'l L. 405,
419-20 (2003).
Upon
withdrawing from the NPT, North Korea considered itself free from IAEA
safeguards, stating that it now enjoyed "the same legal status as the
United States and other countries possessing nuclear weapons ...." Whelan,
supra note 68.
South Korea
then reminded North Korea that the inter-Korean nuclear accord was still valid
and a legal bar to North Korea's developing nuclear weapons. See N. Korea Move
on inter-Korean Nuclear Accord 'Regrettable'--U.S. State Department, supra note
74.
North Korea
responded that the agreement was dead and blamed Washington for its need to
abrogate the arrangement. See S. Korea Says Nuclear Accord with N. Korea Still
Valid, AFX-Asia, May 19, 2003; see also Seo Hyun-Jin, N. Korea Promotes Its
Stance; Declares Denuclearization Pact 'Dead', Korea (Seoul) Herald, May 14,
2003.
News sources
cited the end of the inter-Korean nuclear accord as the last legal barrier to
the North Korean nuclear program. See id.; see also S. Korea Says Nuclear
Accord with N. Korea Still Valid, supra note 75; U.S.- N.Korea Tension Grows,
AP/CBS News, May 14, 2003, available at http://
www.cbsnews.com/stories/2003/05/14/world/main553845.shtm.
Ironically,
just as North Korea justified its withdrawal from the NPT in part on alleged
actions and intentions of the United States, so also the United States justified
its withdrawal from the ABM Treaty in part on alleged actions and intentions of
North Korea. The second Bush
administration withdrew from the ABM Treaty so that the United States could
pursue missile defense technologies. See, e.g., America Withdraws from ABM
Treaty, supra; Patrick E. Tyler, Global Reaction to Missile Plan is Cautious,
N.Y. Times, May 3, 2001, at A10.
The Bush
administration wanted missile defense to protect against perceived dangers from
"rogue nations," such as North Korea, including from the
proliferation of missiles possessed by such States. See David E. Sanger,
AFTEREFFECTS: STRATEGIC ARMS; Bush Issues Directive Describing Policy on
Antimissile Defenses, N.Y. Times, May 21, 2003, at A21; see also Hewitson,
supra, at 419-20 (citing Richard Boucher, Spokesman, U.S. Dept. of State, Text
of Diplomatic Notes Sent to Belarus, Kazakhstan, Russia, Ukraine (Dec. 14,
2001), available at http://www.usembassy.org.uk/acda283.htm).
Alternatively,
another reason for the U.S. pursuit of missile defense is to permit the United
States to intervene in regional hot spots without fear of retaliation against
U.S. territory. Nick Childs, Analysis: Uncertain End to ABM Treaty, BBC News,
June 13, 2002.
When North Korea
withdrew from the NPT, John Bolton, Undersecretary of State for Arms Control
and International Security, stated, "[I]t is hard to see how we can have
conversations with a government that has blatantly violated its
agreements." John Burroughs, Nonproliferation Treaty Applies to Both North
Korea and United States, in Bombs Away!, Spring 2003, available at http://
lcnp.org/pubs/BASpring03/article3.htm (citing North Korea Says Nuclear Program
Can Be Negotiated, N.Y. Times, Nov. 3, 2002, at A1).
This contrasted
with Mr. Bolton's comment when the United States withdrew from the ABM Treaty,
"There may be good and sufficient reasons to abide by the provisions of a
treaty, and in most cases one would expect to do so because of the mutuality of
benefits that treaties provide, but not because the United States is 'legally'
obligated to do so." Burroughs, supra (citing John Bolton, Is There Really
'Law' in International Affairs, 10 Transnat'l L. & Contemp. Probs. 1
(2000)).
This Article
does not address the point developed by Mr. Burroughs to the effect that a
binding norm of international law has developed outlawing the possession of
nuclear weapons or the argument that the United States is itself in breach of
the NPT by not fulfilling its Article VI obligations to "pursue
negotiations in good faith on effective measures relating to cessation of the
nuclear arms race at an early date and to nuclear disarmament." Burroughs, supra.
[FN76]. See
Max Hastings, The Korean War 25 (1987); see also Michael Hickey, The Korean
War: An Overview, available at http://
www.bbc.co.uk/history/war/coldwar/korea_hickey_01.shtml. See generally American Military History:
Army Historical Series, Office of The Chief Military History, United States
Army ch. 25, available at http://www.army.mil/cmh-pg/books/amh/AMH-25.htm.
[FN77]. See
Hastings, supra note 76, at 27.
[FN78]. See
id.
[FN79]. See
id. at 43.
[FN80]. See
id. at 27; see also Hickey, supra note 76, at 46.
[FN81]. See
Hickey, supra note 76, at 46..
[FN82].
According to Hastings' account, North Korea did not hold a monopoly as to
responsibility for border incidents. See Hastings, supra note 76, at 46. One of
the most serious incidents occurred in May 1949 when South Korean forces
penetrated 2.5 miles into North Korean territory attacking local villages. See
id.
[FN83]. See
American Military History, supra note 76. But see Democratic People's Republic
of Korea, The Great War for the Liberation of the Motherland--Korean War,
available at http://www.korea-dpr.com/history30.htm [hereinafter The Great War
for the Liberation of the Motherland] (providing brief account of North Korean
perspective of Korean War). Some
contend that North Korea's invasion of the South was in response to South
Korean President Syngman Rhee's openly declared policy of national unity by
force. According to North Korean
accounts of June 25, 1950 and events leading up to that day, the United States
was the aggressor, and on June 25th it began its "invasion to the
north" under the directions of John Foster Dulles, Advisor to the U.S.
State Department. According to this
account, Dulles had President Syngman Rhee issue propaganda statements
indicating that North Korea was the initial aggressor, so that the United
States could invade North Korea under the flag of the U.N. See The Great War
for the Liberation of the Motherland, supra.
[FN84]. See
American Military History, supra note 76.
[FN85]. See
id. at 25.
[FN86]. See
Hickey, supra note 76, at Introduction.
[FN87]. U.S.
occupation troops had only just left Korea in June 1948, on the basis that they
had done all that was necessary to aid in South Korea's transition from
Japanese protectorate to independent state. See Hastings, supra note 76, at 42.
[FN88]. See Hickey,
supra note 76, at Introduction. The
U.N.'s response was unprecedented in that it was the first time since its
founding that the U.N. reacted to aggression with a decision to use force. See
American Military History, supra note 76.
[FN89]. See
Walter G. Hermes, United States Army in the Korean War: Truce Tent and Fighting
Front 67 (Stetson Conn ed., 1966), available at http://
www.army.mil/cmh-pg/books/korea/truce/fm.htm.
[FN90]. See
Hickey, supra note 76, at China's Intervention.
[FN91]. See
id.
[FN92]. See
id.
[FN93]. See
id.
[FN94]. See
id.
[FN95]. See
infra notes 111-16 and accompanying text.
[FN96]. See
Text of the Korean War Armistice Agreement, July 27, 1953, available at
http://news.findlaw.com/hdocs/docs/korea/kwarmagr072753.html. The Armistice
Agreement is purely a military document.
No Nation is a signatory.
[FN97]. See
id. arts. I(1), II(A)-(B).
[FN98]. See
id. art. IV.
[FN99]. See
Pak Chol Gu, Replacement of the Korean Armistice Agreement: Prerequisite to a
Lasting Peace in the Korean Penninsula, 4 DPRK Perspectives on Ending the
Korean Armistice (1997), available at http://
www.nautilus.org/fora/security/4a_DPRKonKA.html.
[FN100]. See
Agreement on Reconciliation, Non-Aggression and Exchanges and Cooperation
Between North and South, entered into Force on Feb. 19, 1992, available at
http://www.korea.net/issue/sn/summit/summit_012106.asp; see also Joint
Declaration, supra note 2; Chol Gu supra note 99, at 1; Federation of American
Scientists, supra note 36.
[FN101]. See
Nanto, supra note 35.
[FN102]. See
id. at Summary. "North Korea is
reported to have infiltrated a total of 3,693 armed agents into South Korea
from 1954 to 1992 ...." Id. at 2. North Korea was particularly active in the latter
half of the 1960s with 20% of the infiltrations occurring during 1967 and 1968.
See id. at Summary. In April 1996, "[o]n three occasions, a combined total
of seven hundred armed North Korean troops crossed the military demarcation
line into the DMZ at Panmunjom ... in violation of the Korean Armistice
Agreement ("KAA")" . Id. at 13.
[FN103]. See
id. at 8-9. The explosion of a powerful
bomb minutes before South Korean President Chun's arrival "killed 17
senior South Korean officials and injured 14 .... The explosion also killed four Burmese nationals and wounded
thirty-two others." Id. Two other
North Korean plots to assassinate President Chun were uncovered in 1982 and
1984. See id. at 8-9.
[FN104]. See
id. at 10. North Korean terrorists planted
a bomb on a Korean Airline Boeing 707 en route from Baghdad to Seoul, with 20
crewmembers and 95 passengers aboard, [that] exploded in midair over the
Andaman Sea off the coast of Burma." Id.
The North Korean motive for planting the bomb was reportedly to warn
against those planning to take part in the Seoul Olympics. See id.
[FN105]. See
id. at 4.
[FN106]. In
April 1969, North Korean MiG jet fighters shot down an unarmed U.S. EC-121
reconnaissance plane over the Sea of Japan, about 90 miles off the North Korean
coast, resulting in the loss of 31 lives; and in October 1969, four U.S.
soldiers were ambushed and killed near the southern boundary of the DMZ. See
id. at 5. In March 2003, four North
Korean fighter jets intercepted a U.S. Air Force reconnaissance plane in
international airspace over the Sea of Japan. See id. at 25-26.
[FN107]. Id.
at 16.
[FN108]. Id.
at 24.
[FN109]. See
id. at 35; see also Federation of American Scientists, supra note 36.
[FN110]. See
Niksch, supra note 6; see also Federation of American Scientists, supra note
36.
[FN111]. See
Joseph S. Bermudez, A History of Ballistic Missile Development in the DPRK, 12
Occasional Paper, No. 2, at 1 (Monterey Inst. of Int'l Stud. 1999), available
at http://cns.miis.edu/pubs/opapers/op2/op2.pdf (last visited Apr. 12,
2004).
[FN112]. See
id. Iraq would have been included as
one of North Korea's customers had the deal gone through. See Bob Drogin,
Botched Iraqi Deal is Detailed: CIA Advisor Says Hussein Lost $10 Million in a
Plan to Smuggle North Korean Technology That Never Went Through, L.A. Times,
Oct. 4, 2002 (reporting that Saddam Hussein lost $10 million in botched deal
with Kim Jong Il for North Korean ballistic missile technology and other
prohibited missile equipment prior to war).
[FN113]. See
Andrew Ward, Trade Ties Grow Between Two Koreas, Fin. Times, Dec. 10, 2003, at
2; see also Douglas Frantz, North Korea's Nuclear Success is Doubted: Experts
Question U.S. Claims About North's Atomic Abilities, Warning a Showdown Based
on Dubious Evidence Could Further Damage Trust, L.A. Times, Dec. 9, 2003, at A1
(stating that selling missiles and related technology is North Korea's chief
source of hard currency).
[FN114]. See
Niksch, supra note 6, at 1. Most of
North Korea's exports are short range missiles (but it has also exported medium
and possibly long range missiles). See Bermudez, supra note 111; U.S. North
Korea at 'Critical Juncture' Over Missiles, CNN.com, available at http://
www.cnn.com/world/asiapcf/9811/20/korea.missiles/index.html. North Korea is believed to have provided
between twelve and twenty-five complete No-Dong medium-range missiles to
Pakistan in the late 1990s. See Niksch, supra note 6, at 9.
[FN115]. See
Squassoni, supra note 40, at 2 (quoting Pakistan's Benazir Oversaw Korea
Nuclear Deal- sources, Reuters News, Nov. 20, 2002).
[FN116].
Apropos of U.S. allegations as to North Korea's proliferation of ballistic
missiles, it is interesting to review U.S. proliferation activities. The United
States dominates the international market for arms. In 2002, it had worldwide sales of some "$13.3 billion, or
45.5 percent of global conventional weapons sales, a rise from $12.1 billion in
2001." Thom Shanker, U.S. Remains Leader in Global Arms Sales, Report
Says, N.Y. Times, Sept. 25, 2003, at A12.
In 2002, the
Pentagon had an estimated $15.534 billion in proposed conventional arms
transfer agreements with twenty-nine countries. See Arms Control Assoc., Proposed
U.S. Arms Export Agreements From January 1, 2002 to December 31, 2002,
available at http:// www.armscontrol.org/factsheets/armexp2002.asp (last
visited Apr. 12, 2004).
Kuwait was
at the top of the list of all potential arms recipients with requests for $2.29
billion in weaponry that included eighty AIM-120C Advanced Medium Range
Air-to-Air Missiles. See id. Ranking
second and third respectively were the United Arab Emirates
("U.A.E.") and Taiwan. See id.
Included in
the U.A.E.'s order were 237 Sea Sparrow ship-to-air missiles. See id. Taiwan ordered 290 TOW-2B anti-tank missiles
with spare and repair parts, four Kidd-class guided missile destroyers, 248
SM-2 Block IIIA Standard ship-to-air missiles, 323 RGM-84L Block II Harpoon
anti-ship missiles. See id.
The United States is a member of the Missile
Technology Control Regime ("MTCR") and the International Code of
Conduct Against Ballistic Missile Proliferation ("ICOC"). North Korea is not a member of either
organization. The MTCR was created in 1987 by seven countries including the
United States to restrict the proliferation of nuclear-capable missiles and
related technology. See Bureau of Nonproliferation, U.S. Dept. of State,
Missile Technology Control Regime Fact Sheet, Dec. 23, 2003, available at
http:// www.state.gov/t/np/rls/fs/27514.htm.
As of December 2003, there were thirty-three members to the MTCR and
four unilateral adherents. See id. In
1993, the focus of the MTCR was expanded to include missiles for the delivery
of chemical or biological weapons. See id.
The MTCR is
not a treaty, but rather a voluntary agreement among its members purportedly
interested in controlling missile proliferation. See id. The MTCR restricts transfers of missiles, in
particular focusing on unmanned delivery systems capable of delivering a
payload of 500kg a distance of at least 300km. See id. (defining missiles as
"rocket systems (including ballistic missiles, space launch vehicles, and
sounding rockets) and unmanned aerial vehicle systems (including cruise
missile, target drones, and reconnaissance drones) capable of delivering
WMD--and their related equipment and technology"). In 2003 the MTCR
mandate was expanded to include preventing terrorists from acquiring missiles
and missile technology. See id.
The United
States also actively participated in the ICOC, which was formally brought into
effect on Nov. 25, 2002 at a launching conference hosted by the Netherlands, at
The Hague, and is one of the ninety-three original subscribing States. See
Bureau of Nonproliferation, U.S. Dept. of State, International Code of Conduct
Against Ballistic Missile Proliferation Fact Sheet, Jan. 6, 2004, available at
http://www.state.gov/t/np/rls/fs/27799.htm.
As of November 9, 2003, there were 111 subscribing States. The ICOC is intended to supplement the MTCR
and not supplant it. It is intended to
set general principles, elicit modest commitments, and establish
confidence-building measures. See id.
At the ICOC
launching conference, the United States made clear its support of the ICOC and
MTCR, but also stated that it sees its missile defense program as another
important element to protect against the dangers posed by Weapons of Mass
Destruction ("WMD") and ballistic missile proliferation. See John R.
Bolton, Undersecretary for Arms Control and International Security, Remarks at
the Launching Conference for the International Code of Conduct Against
Ballistic Missile Proliferation, The Hague, The Netherlands (Nov. 25, 2002),
available at http://www.state.gov/t/us/rm/15488.htm. Bolton stated that the United States views its missile defense
program as, "complementary to, and consistent with the objectives of the
ICOC and the MTCR." Id.
Towards the
end of his remarks at the launching conference, Mr. Bolten made specific
reference to North Korea's recent violation of the NPT by its announcement that
it has a program to enrich uranium. See id.
Speaking of the States that did not subscribe to the ICOC, he stated, "[F]ar
better to know who is actually prepared to live under its terms, and who is
not. Far better to know who is truly
serious about stopping the proliferation of ballistic missile technology and
the risk that such technology could be used to carry weapons of mass
destruction against innocent civilian populations." Id.
In addition
to its sales of military supplies throughout the world, United States military
hardware is located throughout the world, both on foreign bases of allies and
on ships and submarines throughout the high seas.
[FN117]. See
id. at 24.
[FN118].
Editorial, Missiles for Sale: North Korea Spreading Weapons Technology to
Largest African Nation, Columbus (Ohio) Dispatch, Jan. 30, 2004, at 10A.
[FN119]. See
Drogin, supra note 112.
[FN120]. See
Convention on the Prohibition of the Development, Production, and Stockpiling
of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 26
U.S.T. 571, 1015 U.N.T.S. 163 (1972) [hereinafter Biological Warfare
Convention]. North Korea joined on
March 13, 1987.
[FN121]. See
DCI, supra note 41; see also Federation of American Scientists, North Korea
Special Weapons Guide: Chemical Weapons Program, at http://
www.fas.org/nuke/guide/dprk/cw/index.html (noting that North Korea obtained
some of these chemicals from Japan through contract for delivery of
agricultural chemicals, allowing them to make tabun, mustard gas and later
chlorine and phosphorous-containing organic compounds). It is also believed that North Korean
intelligence agents are involved in clandestine operations to acquire
technology and information to aid in their chemical weapons program. See U.S.
Dept. of Defense, Northeast Asia, in Proliferation: Threat and Response (Report
1997), available at http://www.defenselink.mil/pubs/prolif/ne_ asia.html.
[FN122]. See
Federation of American Scientists, North Korea Special Weapons Guide:
Biological Weapons Program, available at http://
www.fas.org/nuke/guide/dprk/bw/index.html (last visited Apr. 12, 2004).
[FN123].
North Korea is not a signatory to the Chemical Weapons Convention. Convention
on the Prohibition of the Development, Production, Stockpiling and Use of
Chemical Weapons and on Their Destruction, Senate Treaty Doc. 103-21, 32 I.L.M.
800 (1993), available at http://www.opcw.org/html/db/cwc/eng/cwc_
frameset.html.
North Korea
is believed to have acquired and developed its chemical and biological weapons
in part through lax export controls in China and Japan. See Taking the Risk of
Mass Destruction Seriously, S. China Morning Post, Jan. 30, 2004, at 13. Recently the United States has put pressure
on East Asian countries to tighten their export controls, which has prompted a
multi-lateral meeting where dual-use technology export restrictions were agreed
on and a system to exchange intelligence related to its trade established. See
id.
The United
States has severely limited the manner in which it will comply with the
Chemical Weapons Convention, inter alia, by prohibiting the analysis of U.S.
chemical samples in laboratories outside of the United States, by asserting a
Presidential right to refuse on-site inspections, and by limiting the scope of
the industrial facilities that have to be declared. See Rule of Power or Rule
of Law? 71 (S. Nicole Deller et al. eds., 2003). Additionally, the United States--despite fears of
bioterrorism--has generally rejected efforts to strengthen the Biological
Weapons Convention through the establishment of a reliable verification
protocol. See id. at 76-81.
[FN124]. See
Sheer Sophism, Korean Central News Agency of Democratic People's Republic of
Korea, Mar. 28, 1999, available at http://
www.kcna.co.jp/item/1999/9903/news03/28.htm.
[FN125]. See
John R. Bolton, U.S. Under Secretary for Arms Control and International
Security, Beyond the Axis of Evil: Additional Threats from Weapons of Mass
Destruction, Remarks to the Heritage Foundation (May 6, 2002), available at
http://www.state.gov/t/us/rm/9962.htm (stating that North Korea has developed
biological weapons and that United States believes that North Korea has
stockpiled chemical weapons). See also
U.S. Dept. of Defense, North Korea Country Handbook: Marine Corps Intelligence
Activity 41-42 (May 1997), available at
http://www.fas.org/nuke/guide/dprk/nkor.pdf (last visited Apr. 16, 2004).
[FN126]. See
DCI, supra note 41.
[FN127]. See
U.S. Dept. of Defense, supra note 121.
[FN128].
Federation of American Scientists, North Korea Special Weapons Guide: Special
Weapons Facilities, available at http://
www.fas.org/nuke/guide/dprk/facility/index.html.
[FN129].
Ministry of National Defense, Republic of Korea, White Paper 1999, pt. 1, ch.
3, sec. 3, available at http://www.mnd.go.kr/english/html/02.htm.
[FN130]. See
The Henry L. Stimson Center, North Korean Chemical and Biological Weapons
Threats Elaborated, 3 CBW Chron. 1, Feb. 2000, available at
http://www.stimson.org/cbw/?sn=cb20020113258.
See also Charles Lee, U.S., S. Korea Conduct Military Exercise, United
Press Int'l, Oct. 26, 1999. In 1996,
Jane's Intelligence Review estimated that during peacetime North Korea was
capable of producing 4,500 tons of chemical weapons annually, expanded to
12,000 tons in wartime. See Armed Forces: North Korea, Jane's Sentinel Security
Assessment, Feb. 5 2004.
The facts as
to North Korea's chemical and biological programs are less than clear because
there have never been any international inspections. See Council on Foreign
Relations Discussion with Gary Samore, Director of Studies and Senior Fellow
for Nonproliferation, The International Institute For Strategic Studies; and
Adam Ward, Senior Fellow for East Asian Security, The International Institute
for Strategic Studies, Fed. News Service, Jan. 23, 2004. Under the Chemical Weapons Convention
however, there is a robust inspection regime where parties have to declare
their chemical weapons facilities and stockpiles and they must allow
inspections of "dual-use" production facilities that could be used to
create chemical weapons. See Deller, supra note 123.
[FN131]. See
Federation of American Scientists, supra note 121.
[FN132]. See
President George W. Bush, State of the Union Address (Jan. 29, 2002), available
at http://www.whitehouse.gov/news/releases/2002/01/20020129- 11.html
[hereinafter 2002 State of the Union Address].
In his discussion of the first objective, President Bush lauded Pakistan
and President Musharraf for "now cracking down on terror." Id.
[FN133]. See
id. President Bush elaborated on the
axis of evil in his 2003 State of the Union Address, although he never
explicitly referred to it as such. See 2003 State of the Union Address, supra
note 72.
[FN134]. See
2002 State of the Union Address, supra note 132.
[FN135]. See
id.
[FN136]. See
id. President Bush described the
rationale for his strategy of preemption as the following: "I will not
wait on events, while dangers gather. I
will not stand by, as peril draws closer and closer. The United States of America will not permit the world's most
dangerous regimes to threaten us with the world's most destructive
weapons." Id.
[FN137]. See
David Frum & Richard Perle, An End to Evil: How to Win the War on Terror 98
(2003). David Frum is currently a
resident fellow at the American Enterprise Institute, a contributing editor at
National Review, a columnist for Canada's National Post, and a regular
contributor to Britain's Daily Telegraph and National Public Radio. He served as special assistant to the
current President Bush for economic speechwriting from Jan. 2001 to Feb. 2002,
and helped coin the phrase, "axis of evil." See Keppler Assocs.,
David Frum Biography, available at http://
www.kepplerassociates.com/speakers/frumdavid.asp (last visited Apr. 12, 2004);
Julain Borger, How I Created the Axis of Evil, Guardian, Jan. 28, 2003,
available at http://www.guardian.co.uk/g2/story/0,3604,883621,00.html. Richard
Perle served as Assistant Secretary of Defense for President Reagan, and was
Chairman of the Defense Policy Board, during the current Bush administration,
an advisory group to the Secretary of Defense composed of non-elected officials,
until March 2003, and remains a member of that Board. In 1997, he was a
founding member of the Project for the New American Century ("PNAC"),
whose objective is to "rally support for American global leadership."
See PNAC, Statement of Principles (June 30, 1997), available at http://
www.newamericancentury.org/statementofprinciples.htm. Other founding members and supporters of the group then included
current Vice President Dick Cheney, current Secretary of Defense Donald
Rumsfeld, current Assistant Secretary of Defense Paul Wolfowitz, I. Lewis
Libby, current Assistant to the President and Vice President Cheney's Chief of
Staff, Florida Governor and brother of the President, Jeb Bush, and former Vice
President Dan Quayle. See Letter from PNAC, to President William J. Clinton
(Jan. 28, 1998), available at http://
www.newamericancentury.org/iraqclintonletter.htm.
[FN138].
See, e.g., Frum & Perle, supra note 137, at 34-35.
[FN139]. Id.
at 35.
[FN140].
Id.
[FN141]. See
id. at 101.
[FN142]. See
id. at 103.
[FN143]. See
id. at 103.
[FN144]. See
id. at 103-104. The preemptive strike
approach has generated some support, although it is generally contrary to
established international law. See, e.g., William H. Taft IV & Todd F.
Buchwald, Agora: Future Implications of the Iraq Conflict: Preemption, Iraq,
and International Law, 97 Am. J. Int'l L. 557 (July 2003) (arguing that United
States had firm basis for using preemptive force in Iraq, based on Iraq's past
actions and threat Iraq posed, as seen over protracted period of time). Citing President Bush's National Security
Strategy, Taft and Buchwald argue that it would be irresponsible to ignore
adversaries who "rely on acts of terror and, potentially, the use of
weapons of mass destruction--weapons that can be easily concealed, delivered
covertly, and used without warning." Id. at 557 n.1 (citing The National
Security Strategy of the United States of America 15 (Sept. 17, 2002),
available at http://www.whitehouse.gov/nsc/nss.pdf). But see Ivo Daalder,
Policy Implications of the Bush Doctrine on Preemption, Memorandum to Members
of the Council of Foreign Relations/American Society of International LawASIL
Roundtable on Old Rules/New Threats, available at http://
www.cfr.org/publication.php?id=5251 (distinguishing between preventative war
and preemptive attack). Daalder defines
"preventative war" as "a premeditated attack of one state
against another, which is not provoked by any aggressive action of the state
being attacked against the state initiating the conflict." Id. In contrast, he defines a "preemptive
attack" as one "launched only after the state being attacked has
either initiated or has given a clear indication that it will initiate an
attack." Id. Daalder concludes
that the justification for war on Iraq, a belief that Baghdad would soon
acquire nuclear weapons which it would then use to threaten others, is contrary
to historical precedent. See id.; see also Jane E. Stromseth, Agora: Future
Implications of the Iraq Conflict: Law and Force After Iraq: A Transitional
Moment, 97 Am. J. Int'l L. 628, 638 n.50 (July 2003) (stating that "in the
absence of an imminent threat of attack, it would be hard to justify such
action legally within the right of self-defense under the U.N. Charter as
currently understood"); Lori Fisler Damrosch & Bernard H. Oxman,
Agora: Future Implication of the Iraq Conflict, 97 Am. J. Int'l L. 553
(debating whether U.S. invasion of Iraq destroyed system of governance
restricting use of force under U.N. Charter); John Alan Cohan, The Bush
Doctrine and the Emerging Norm of Anticipatory Self-Defense in Customary
International Law, 15 Pace Int'l L. Rev. 283 (2000).
[FN145]. See
Frum & Perle, supra note 137, at 104.
[FN146]. See
id.
[FN147].
DPRK Says U.S. 'Ruptured' Process, supra note 30.
[FN148].
Id.
[FN149]. See
id.
[FN150]. See
id. North Korea contends, "[T]he
United States has pursued the so-called NCND policy, under which it neither
confirms nor denies the deployment of nuclear weapons. However, it has not tried to conceal the
fact that it deployed nuclear weapons in South Korea but used it as a means to
threaten us." Id.
[FN151].
Id.
[FN152]. See
id. North Korea claims that the
military hardware was displayed in an airfield and made public to reporters
from Tongyang, Reuters and Haptong News Agency. See id.
[FN153]. See
id.
[FN154]. See
id.
[FN155].
Id.
[FN156].
Federation of American Scientists, North-South Korea: Cautious Optimism Builds
in Advance of June Summit--Foreign Media Reaction, May 3, 2000, at
http://www.fas.org/news/dprk/2000/wwwh0m03.htm; see also North Korea Denies
U.S. Official's Assertion on Biological Weapons, BBC Monitoring Int'l Reports,
Sept. 10, 2002.
[FN157]. See
Shaking Hands with Saddam Hussein: The U.S. Tilts Toward Iraq, 1980-1984, in
Nat'l Security Archive Electronic Briefing Book No. 82 (Joyce Battle ed. Feb.
25, 2003), available at http://www.gwu.edu/~ nsarchiv/NSAEBB/NSAEBB82/.
[FN158]. See
Christopher Marquis & Thom Shanker, The Struggle For Iraq: Documents;
Rumsfeld Made Iraq Overture in '84 Despite Chemical Raids, N.Y. Times, Dec. 23,
2003, at A10.
[FN159]. See
id. (reporting that during Iran-Iraq war, United States secretly provided Iraq
with combat assistance, even after Saddam Hussein's use of chemical weapons
against Iranians was widely known); see also Michael Dobbs, U.S. Had Key Role
in Iraq Buildup: Trade in Chemical Arms Allowed Despite Their Use on Iranians,
Kurds. Wash. Post, Dec. 30, 2002, at A1 (stating that in 1987, State Department
reports noted chemical attacks on Kurds, but U.S. policy was to do nothing
because it would be "counterproductive" in influencing Iraq).
[FN160]. See
Dobbs, supra note 159.
[FN161]. See
id. (reporting that Rumsfeld traveled to Iraq to persuade Iraqi officials that
United States was eager to improve ties with President Hussein, despite his use
of chemical weapons).
[FN162]. See
id.
[FN163]. See
id.
[FN164]. See
U.N. SCOR, 41st Sess., 2666th mtg., at 11, Res. 582 (1986), available at
http://www.un.org/Docs/scres/1986/scres86.htm.
U.N. specialists unanimously concluded that chemical weapons were used
by Iraqi forces on many occasions against Iranian forces. See id. The Security Council strongly condemned
Iraq's continued use of chemical weapons. See id. As early as 1983, the Reagan administration was also aware that
Iraq had used gas against the Kurds and that Iraq had developed a chemical
weapons production capability, acquired "primarily from Western firms,
including possibly a U.S. foreign subsidiary." Battle, supra note 157
(citing to de-classified U.S. Dept. of State Action Memorandum to Lawrence S.
Eagleburger, from Jonathan T. Howe, on the Iraqi Use of Chemical Weapons, Nov.
21, 1983).
[FN165].
Saddam's Iraq: Key Events, Iran-Iraq War, Chemical Warfare, 1983- 1988, BBC
News, at http://news.bbc.co.uk/1/shared/spl/hi/middle_east/02/iraq_
events/html/chemical_warfare.stm.
[FN166]. See
Confrontation in the Gulf: Excerpts From Iraqi Document on Meeting With U.S.
Envoy, N.Y. Times, Sept. 23, 1990, at A1;
see also Elaine Sciolino & Michael R. Gordon, Confrontation in the
Gulf: U.S. Gave Iraq Little Reason Not to Mount Kuwait Assault, N.Y. Times,
Sept. 23, 1990, at A1; John K. Cooley, It's Time to Think Straight About
Saddam, Int'l Herald Trib., Dec. 23, 1997, at 8.
[FN167]. See
Sciolino & Gordon, supra note 166.
[FN168]. See
Cooley, supra note 166.
[FN169]. See
U.S. White House, Report in Connection With Presidential Determination Under
Public Law 107-243, at 2-3 (Mar. 19 2003), available at
http://usinfo.state.gov/topical/pol/terror/03031910.htm [hereinafter March 19th
Report]. Throughout the seven years
that Iraq allowed inspections, "it repeatedly obstructed access to sites
designated by the United Nations Special Commission ("UNSCOM") and
the International Atomic Energy Agency ("IAEA")." Id. at 3. In 1998, Iraq's obstructed UNSCOM inspectors
by restricting access to "presidential palaces" and refused to
cooperate with inspections led to "Desert Fox," which led to a
three-day bombing campaign by the United States and British forces. See
Saddam's Iraq: Key Events, Iraq Under Sanctions, Desert Fox 16-19 December
1998, BBC, at http://news.bbc.co.uk/1/shared/spl/hi/middle_
east/02/iraq_events/html/desert_fox.stm; see also Authorization for Use of
Military Force Against Iraq Resolution, Pub. L. 102-1 (1991); Authorization for
Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107- 243, 116
Stat. 1498 (2002). See generally Raymond W. Copson, Iraq War: Background and
Issues Overview, CRS Report for Congress, RL 31715, available at
http://www.usembassy.at/en/download/pdf/iraq_war1.pdf (last visited Apr. 15,
2004).
[FN170]. See
March 19th Report, supra note 169.
[FN171]. See
id. at 2-3.
[FN172]. See
id. at 3.
[FN173]. See
Richard W. Stevenson, Bush Sought to Oust Hussein From Start, Ex-official Says,
N.Y. Times, Jan. 12, 2004, at A11. But see Richard W. Stevenson, Bush Disputes
Ex-Official's Claim That War With Iraq Was Early Administration Goal, N.Y.
Times, Jan. 13, 2004, at A22 [hereinafter Stevenson, Bush Disputes
Ex-Official's Claim]. See generally Ron Suskind, The Price of Loyalty: George
W. Bush, the White House, and the Education of Paul O'Neill (2004). Secretary O'Neill cooperated extensively on
the book, turning over 19,000 documents from his years as Treasury Secretary,
including transcripts of National Security Council Meetings.
[FN174].
Stevenson, Bush Sought to Oust Hussein From Start, Ex-official Says, supra note
173, at A11.
[FN175]. See
Stevenson, Bush Disputes Ex-Official's Claim, supra note 173, at A22.
[FN176]. See
id. (quoting Suskind, supra note 173).
[FN177]. See
U.S.-Iraq Relations 1990-1998: President Bill Clinton on Retaliation for Iraqi
Plot to Assassinate President George H.W. Bush (C-Span broadcast, June 26,
1993), available at http://www.c-span.org/iraq/history.asp; see also David Von
Drehle & R. Jeffrey Smith, U.S. Strikes Iraq for Plot to Kill Bush, Wash.
Post, June 27, 1993, at A1.
[FN178]. See
John King, Bush Calls Saddam 'The Guy Who Tried to Kill my Dad', CNN.com, Sept.
27, 2002, available at http://
www.cnn.com/2002/ALLPOLITICS/09/27/bush.war.talk/.
[FN179]. See
id.
[FN180]. See
id.
[FN181]. See
id.
[FN182]. See
U.S. Rejected 11th-Hour Iraqi Offer to Avert War, Sources Say; An Intermediary
and Bush Officials Recount Attempt at a Deal.
White House Plays Down Effort, L.A. Times, Nov. 7, 2003, at A15
[hereinafter U.S. Rejected 11th-Hour Iraqi Offer]; see also James Risen, Iraq
Offered U.S. a Deal as the War Loomed, Int'l Herald Trib., Nov. 7, 2003, at
1.
[FN183]. See
U.S. Rejected 11th-Hour Iraqi Offer, supra note 182.
[FN184]. See
id.
[FN185]. See
id.
[FN186].
Risen, supra note 182 (stating that by early March, Hage characterized Iraqi's
tone as "begging").
[FN187]. See
id.
[FN188]. See
Bush Aids Defend War, CBS/AP, Mar. 14, 2004, available at
http://www.cbsnews.com/stories/2004/03/18/iraq/main607182.shtml.
[FN189]. See
U.S. Defends Iraq War As One Year Anniversary Nears, Chi. Trib., Mar. 15, 2004,
at 12.
[FN190]. See
id.
[FN191]. See
No Proof Links Iraq, al-Qaida, Powell Says, NBC, MSNBC and New Services, Jan.
08, 2004, available at http://msnbc.msn.com/id/3909150/.
[FN192]. See
Bush and Kerry Frame Contrasts of Race Ahead: As Democrat Adds to Wins,
President Defends Policies In Rare TV Appearance, Wall St. J., Feb. 9, 2004, at
A1 (quoting President Bush).
[FN193]. See
Robert S. Norris et al., Where They Were, 55 Bull. Atomic Scientists 6, 26-35
(1999), available at http://
www.bullatomsci.org/issues/1999/nd99/nd99norris.html.
[FN194]. See
id.
[FN195]. See
id.; Robert S. Norris & William M. Arkin, Nuclear Notebook: U.S. Nuclear
Weapons Locations, 51 Bull. Atomic Scientists 6 (1995), available at
http://www.thebulletin.org/issues/nukenotes/nd95nukenote.html.
[FN196]. See
Norris et al., supra note 193. See also
Benjamin Friedman, Nuclear Issues, Fact Sheet: North Korea's Nuclear Weapons
Program, Ctr. for Def. Info., Jan. 23, 2003, at
http://www.cdi.org/nuclear/nk-fact-sheet.cfm.
[FN197]. See
Donald H. Rumsfeld, Nuclear Posture Review Report [Excerpts] Submitted to
Congress on Dec. 31, 2001, at 1, GlobalSecurity.org (Jan. 8, 2002), available
at http:// www.globalsecurity.org/wmd/library/policy/dod/npr.htm; see also Charles J. Moxley, 2002 Nuclear
Posture Review Strategic and Legal Ramifications, Apr. 16, 2002, available at
http://www.nuclearweaponslaw.com/2002_NPR_Moxley.pdf (last visited April 15,
2004).
[FN198].
Bill Gertz, Nukes Option by U.S. in Korea, Wash. Times, Nov. 18, 2003,
available at http://www.washtimes.com/national/20031117-115816-2478r.htm.
[FN199]. See
Charles J. Moxley, Jr., Nuclear Weapons and International Law in the Post Cold
War World 501-514 (2000) (citing Robert S. Norris & Williams M. Arkin, U.S.
Strategic Nuclear Forces, End of 1998; Abstract, 55 Bull. Atomic Scientists 1,
78-79 (1999)).
[FN200]. See
infra notes 277-87 and accompanying text.
[FN201].
CIA, World Factbook 2003: North Korea (2003), available at http://
www.cia.gov/cia/publications/factbook/geos/kn.html (last modified Dec. 18,
2003).
[FN202].
CIA, World Factbook 2003: South Korea, available at http://
www.cia.gov/cia/publications/factbook/geos/ks.html (last modified Dec. 18,
2003).
[FN203]. See
World Factbook 2003: North Korea, supra note 201.
[FN204]. See
World Factbook 2003: South Korea, supra note 202.
[FN205]. See
Where Famine Stalks the Land, BBC News, Nov. 30, 2000, available at
http://news.bbc.co.uk/1/hi/world/asia-pacific/1048557.stm; see also Barbara
Demick, A Small Problem Growing; Chronic Malnutrition has Stunted a Generation
of North Koreans. The Crises is at the
Heart of Debate Over Food Aid to the Isolated Nation, L.A. Times, Feb. 12,
2004, at A1.
[FN206]. See
David Marcus, Famine Crimes in International Law, 97 Am. J. Int'l L. 245,
259-61 (2003).
[FN207]. See
Demick, supra note 205.
[FN208]. See
Bureau E. Asian & Pac. Aff., U.S. Dep't. State, Background Note: North
Korea (March 2004), available at http://
www.state.gov/r/pa/ei/bgn/2792.htm.
[FN209].
Report of the Fifty-Fourth Session of the Executive Committee of the High
Commissioner's Programme, U.N. Ex. Comm. High Comm. Prog., 54th Sess., U.N.
Doc. A/AC.96/987 (Oct. 10, 2003).
[FN210]. See
id.; see also Marcus, supra note 206, at 259-61 (arguing that international law
of genocide and crimes against humanity criminalizes government behavior that
abets or creates famine, and specifically notes North Korea as example of just
such regime).
[FN211].
DPRK 'Nuclear Deterrent Force' to be Built if US Maintains 'Hostile Policy,'
Korean Cent. News Agency, June 3, 2003, available at http://
www.fas.org/nuke/guide/dprk/nuke/dprk060903.html. See also North Korea's Nuclear Threat, World Press Rev.,
available at http:// www.worldpress.org/Asia/1233.cfm.
[FN212]. See
Joseph Nye, Defusing the North Korean Threat, Fin. Times (London), Jan. 18,
2000, at 13.
[FN213]. See
Kathleen T. Rhem, North Korean Military 'Very Credible Conventional Force', Am.
Forces Press Service, Nov. 18, 2003, available at
http://www.defenselink.mil/news/Nov2003/n11182003_200311181.html (citing Gen.
Leon LaPorte, USA, Commander of U.S. forces in South Korea).
[FN214]. See
Linda D. Kozaryn, Despite Progress, North Korea Poses Major Threat, Am. Forces
Press Service, Apr. 3, 2001, available at http://
www.defenselink.mil/news/Apr2001/n04032001_200104031.html
[FN215]. See
Nye, supra note 212. Seoul is less than
fifty miles from the DMZ. See Andrew Stephen, And Now, the Next American War:
Just When You Thought the Horizon was Cloudless, a New Conflict is Coming to a
Head, New Statesman (London), Apr. 13, 2004.
[FN216]. See
Eleanor Hall, North Korea a Greater Threat than Iraq: Analyst, World Today (ABC
Local Radio Broadcast, Australia, Feb. 13, 2003), available at
http://www.abc.net.au/worldtoday/s783676.htm.
[FN217]. See
Phillip C. Saunders, Military Options for Dealing with North Korea's Nuclear
Program, Center for Nonproliferation Studies, Jan. 27, 2003, available at
http://cns.miis.edu/research/korea/dprkmil.htm
[FN218]. See
Kozaryn, supra note 214.
[FN219]. See
North Korean Missile Proliferation Hearing Before the Subcomm. on Int'l
Security, Proliferation, & Fed. Services of the Comm. on Governmental Aff.,
105th Cong. (1997) (Prepared Statement of Ju-Hwal Choi Former Official Ministry
of the People's Army North Korea) (stating "[s]ince the North uses mostly
mobile rocket launchers, not fixed ones, it is assumed that the North does not
have fixed rocket launchers").
[FN220]. See
Kozaryn, supra note 214. The DPRK also
has about 3800 tanks, mainly Soviet T-54/55s and T-59s, but has recently
developed the capacity to produce more modern T-62s. See Korean People's Army -
Introduction, available at
http://www.globalsecurity.org/military/world/dprk/army.htm (last modified Aug.
28, 2003); 1999 White Paper, supra note 129, at pt. 1(3).
[FN221]. See
Navy, at http://www.fas.org/nuke/guide/dprk/agency/navy.htm (last updated Mar
1, 2000). But see 1999 White Paper, supra note 129, at I.1.3 (stating that
South Korean Ministry of National Defense says that North Korea has ninety
submarines).
[FN222]. See
Rhem, supra note 213 (citing Army General Leon LaPorte, Commander of U.S.
forces in South Korea).
[FN223].
Id.
[FN224].
Press Advisory, U.S. Dep't. Defense, Report on the Military Situation on the
Korean Peninsula sec. 2 (Sept. 22, 2000), available at http://
www.dod.mil/news/Sep2000/.
[FN225]. See
John E. McLaughlin, North Korea: Engagement or Confrontation, Remarks at Texas
A&M Conference (Apr. 17, 2001), available at http://
usinfo.state.gov/topical/pol/arms/stories/01042301.htm.
[FN226]. See
Rhem, supra note 213.
[FN227]. Id.
(citing Army General Leon LaPorte, Commander of U.S. forces in South
Korea).
[FN228]. See
Yihong Chang & James Foley, Pyongyang Goes for Broke, Jane's Intelligence
Rev., Mar. 1, 2003, at 36-40.
[FN229]. See
id.
[FN230]. See
id.
[FN231]. See
id.
[FN232]. See
Hall, supra note 216; see also Saunders, supra note 217; Kozaryn, supra note
214.
[FN233]. See
Chemical Weapons Program, supra note 121; Northeast Asia, supra note 121 (stating "chemical
weapons may have become an integral part of North Korea's warfighting
strategy."); see also Attack Across the DMZ Special Report, Jane's
Intelligence Rev., Apr. 1, 1994. As
early as 1947, the KPA's manual noted the utility of chemical weapons solely
for their fear factor; by forcing the enemy to "suit up" in
preparation of the possible use of such weapons, North Korea figures that it
degrades the fighting ability of enemy units. See Chemical Overview, at
http://www.nti.org/e_ research/profiles/NK/Chemical/. North Korea has between 500 and 600 Scud missiles capable of
striking targets throughout South Korea with chemical weapons or conventional
warheads. See Saunders, supra note 217.
Specifically, North Korea could use non-persistent chemical agents to
break through defenses around the DMZ and persistent chemical agents against
South Korean fixed military assets in rear areas. See Chemical Weapons Program,
supra note 121; see also North Korea Country Handbook, supra note 125 (stating
that "DPRK chemical weapons would compliment conventional military
power. In a surprise attack, DPRK
forces are expected to use chemical weapons to demoralize defending forces,
reduce their effectiveness, and deny use of mobilization centers, storage
areas, and military bases without physically destroying facilities and
equipment").
[FN234]. See
Chemical Weapons Program, supra note 121.
[FN235]. See
id. See also Chemical Overview, supra
note 233 (noting "[North Korea] has
traditionally viewed chemical weapons as an integral part of any military
offensive"); Attack Across the DMZ Special Report, supra note 233.
[FN236].
Northeast Asia, supra note 121.
[FN237]. See
Rebecca MacKinnon, N. Korea's Bio-Chem Warfare Threat, CNN.com, Mar. 3, 2003,
available at http://
www.cnn.com/2003/WORLD/asiapcf/east/03/02/nkorea.cbw/.
[FN238]. See
Chemical Weapons Program, supra note 121.
[FN239]. See
Chemical Overview, supra note 233.
[FN240]. See
Biological Weapons Program, supra note 122.
[FN241]. See
Chemical Weapons Program, supra note 121.
[FN242].
Id.
[FN243]. See
id.; Attack Across the DMZ Special Report, supra note 233.
[FN244]. See
Bermudez, supra note 111, at 1. But see Missiles, at http:// www.fas.org/nuke/guide/dprk/missile/index.html
(last updated May 13, 2003) (citing North Korea as having roughly 536
missiles).
[FN245]. See
Missiles, supra note 244; Bermudez, supra note 111, at 16; Hwasong 6/Scud-C, at
http://www.fas.org/nuke/guide/dprk/missile/hwasong-6.htm (last updated May 13,
2003) (citing Gen. Thomas Schwartz, Commander-in-Chief United Nations
Command/Combined Forces Command and Commander, U.S. Forces Korea in 2000,
estimating that North Korean ballistic missile inventories included over 500 short
range missiles).
[FN246]. See
Bermudez, supra note 111, at 11.
[FN247]. See
id. at 16.
[FN248]. See
Missiles, supra note 244.
[FN249]. See
id.; see also Hwasong 6/Scud-C, supra note 245.
[FN250]. See
David C. Wright, Assessment of North Korea's Nuclear Weapons Program, Union of
Concerned Scientists, Feb. 25, 2003, available at http://
www.ucsusa.org/global_security/missile_defense/page.cfm?pageID=603. The range required of a North Korean missile
to reach U.S. bases in Japan and major Japanese cities would be 1000-1500 km.
See Bermudez, supra note 111, at 16; see also Niksch, supra note 6, at 7.
[FN251]. See
Bermudez, supra note 111, at 20-21.
[FN252]. See
id. at 22-23; see also Niksch, supra note 6, at 7. But see Missiles, supra note
244 (stating that North Korea possesses between twelve and thirty-six No-Dong
missiles).
[FN253]. See
Bermudez, supra note 111, at 20.
[FN254]. In
2002 the Department of Defense noted that North Korea fielded No-Dong missiles
able to strike U.S. forces based in Japan. No-Dong, at http://
www.fas.org/nuke/guide/dprk/missile/nd-1.htm (last updated May 13, 2003). See also Bermudez, supra note 111, at 16.
[FN255]. See
id. at 26.
[FN256]. See
id. at 30. Operational is a relative
term, and the KPA may have been using the Taepo-dong 1 earlier than 2000. See
id. Since North Korea has lower
standards of reliability and readiness than do Western Nations. See id.
[FN257]. See
id. at 29. But see Wright, supra note 250 (stating that any such variant of
Taepo-dong 2 would be appreciable advancement in North Korea's missile
technology, and would not be possible without number of significant
improvements and multiple flight tests).
[FN258]. See
Bermudez, supra note 111, at 26.
[FN259]. See
id. at 16.
[FN260]. See
id. at 30.
[FN261]. See
id. at 29.
[FN262]. See
id.
[FN263]. Id.
at 30 (quoting N. Korea Says it Launched 'Satellite', United Press Int'l, Sept.
4, 1998).
[FN264]. See
Niksch, supra note 6, at 7.
[FN265]. See
Bermudez, supra note 111, at 16, 26.
[FN266]. See
Missiles, supra note 244.
[FN267]. See
Moxley, supra note 7, at 525 (citing Kosta Tsipis, Arsenal: Understanding
Weapons in the Nuclear Age 69-76 (1983)).
[FN268]. See
Scud-B Shahab-1, at http:// www.fas.org/nuke/guide/iran/missile/shahab-1.htm
(last updated May 13, 2003).
[FN269]. See
Bermudez, supra note 111, at 11. The
CEP of the Hwasong 5 is unknown, but the missile is an indigenously produced
version of the Soviet R-17E, which has a CEP of 500 to 800 m. See id. at
11. Later models of the Hwasong 5 used
an improved North Korea guidance system however, and may have better accuracy.
See id. But see Hwasong 5/Scud-B, at
http:// www.fas.org/nuke/guide/dprk/missile/hwasong-5.htm (last updated May 13,
2003) (stating that Hwasong 5 has CEP of 450m).
[FN270]. See
Nodong, supra note 254.
[FN271]. The
KPA may have considered the Taepo-dong 1 operational as early as 1999 or 2000.
See Bermudez, supra note 111, at 30.
Operational, however, is a relative term, and the KPA may have been
using the Taepo-dong 1 earlier than 2000 since North Korea has lower standards
of reliability and readiness than do Western Nations. See id. at 30.
[FN272]. Id.
at 30; see also Missiles, supra note 244.
The CEP of a missile is inherently subject to surrounding
circumstances. As the Navy Judge
Advocate General stated, in his review of the lawfulness of the Trident I (C-4)
Missile, any actual launch contains a "variation in CEP as a function of
range, launch and trajectory condition ...." U.S. Dep't Navy, Office of
the Judge Advocate General, Review of the Legality of the Trident I (C-4)
Missile, Memorandum for the Chief of Naval Operations (OP-21), at 3 (Nov. 22,
1976) (quoting formerly restricted data, redacted version obtained under the
Freedom of Information Act by Charles J. Moxley Jr.), available at http://
www.nuclearweaponslaw.com/FOIA_Materials.html [hereinafter Navy JAG Trident
I].
[FN273]. See
Bureau E. Asian & Pac. Aff., U.S. Dep't. State, Background Note: South
Korea (Mar. 2003), available at http:// www.state.gov/r/pa/ei/bgn/2800.htm
(providing that South Korea has per capita GNP of U.S.$10,000 and is twelfth
largest economy in world).
[FN274]. See
id. (providing that South Korea is republic and held its first democratic
elections in 1987).
[FN275]. See
Kozaryn, supra note 214.
[FN276].
Orders of Battle and Major Equipment: South Korea and North Korea, at
http://www.globalsecurity.org/military/world/rok/orbat-comp.htm.
[FN277]. See
U.S. Forces Order of Battle - 17 March 2004, at http://
www.globalsecurity.org/military/ops/korea-orbat.htm.
[FN278]. See
U.S. Navy, Commander, U.S. Seventh Fleet, Forward Presence, at
http://www.c7f.navy.mil/New/Pages/Forward%20presence.html.
[FN279]. See
id. Of the forty to fifty ships that
traditionally comprise the Seventh Fleet, eighteen are based in Japan. See
id.
[FN280]. See
id.
[FN281]. See
U.S. Security Strategy for the East Asia-Pacific Region, at http://www.usa.or.th/services/docs/reports/ussec1.htm. Additional forces would be available in a
short period of time. See Attack Across
the DMZ Special Report, supra note 233.
[FN282]. See
7th Air Force, at http://www.osan.af.mil/Facts/7th%20Air% 20Force.htm (last
modified Apr. 2003).
[FN283]. See
History of Osan Air Base, Republic of Korea, at http://
www.osan.af.mil/Facts/Osan%20Air%20Base.htm (last modified Apr. 2003).
[FN284]. See
Attack Across the DMZ Special Report, supra note 233.
[FN285]. See
Pacific Air Forces, at http://www.osan.af.mil/Facts/Pacific% 20Air%C%Forces.htm
(last visited Apr. 6, 2004).
[FN286]. See
Robert A. Wampler, North Korea and Nuclear Weapons: The Declassified U.S.
Record, available at http://www.gwu.edu/~ nsarchiv/NSAEBB/NSAEBB87 (Apr. 25,
2003).
[FN287]. See
Gertz, supra note 198.
[FN288]. See
Rhem, supra note 213; see also Hall, supra note 216; Saunders, supra note
217.
[FN289]. See
Chemical Weapons Program, supra note 121; Attack Across the DMZ Special Report,
supra note 233.
[FN290]. See
R. Jeffrey Smith, North Korea Deal Urged by State Dept., Wash. Post, Nov. 15,
1993, at A15.
[FN291]. See
Doug Bandow, N. Korea is No Place to Apply Iraq Lessons, L.A. Times, Apr. 22,
2003, at B13.
[FN292]. Paul
Richter, North Korea Crises; Two-Strategy Faces Test; Battling North Korea Amid
Iraq Conflict Could Mean Longer Fighting and More Casualties, L.A. Times, Feb.
13, 2003, at A1.
[FN293]. See
Saunders, supra note 217.
[FN294]. See
id.; see also North Korean Missile Proliferation Hearing, supra note 219.
[FN295]. See
Saunders, supra note 217; see also Barbara Demick, N. Korea's Ace in the Hole,
L.A. Times, Nov. 14, 2003, at A1 (explaining that North Korea has placed heavy
artillery pieces in mountain bunkers that are positioned to quickly slide in
and out on rails).
[FN296]. See
Saunders, supra note 217.
[FN297]. See
Chemical Weapons Program, supra note 121.
[FN298]. See
Smart and Smarter, Jane's Int'l Def. Rev., Jan. 1, 2000; Attack Across the DMZ
Special Report, supra note 233.
[FN299]. See
Smart and Smarter, supra note 298.
[FN300]. See
id.
[FN301]. See
Saunders, supra note 217.
[FN302]. See
id. While a number of North Korean
nuclear facilities-- including nuclear reactors and reprocessing plants--have
been located, its reprocessing facilities, particularly those for uranium,
could be operated in relatively small, underground facilities. See id. Additionally, it is most likely that any
warheads North Korea possesses would be hidden in underground facilities. See
id.
[FN303]. See
id. There is also a complication in
that attacking any nuclear facilities could spread radioactive material
throughout the Korean Peninsula, and even as far as Japan and China. See
id.
[FN304]. See
generally Attack Across the DMZ Special Report, supra note 233; see also Hall,
supra note 216; Saunders, supra note 4; Kozaryn, supra note 214. Some have argued that North Korea would not
attack the South even in circumstances where it was attacked
first--acknowledging that would be suicide--but instead would use its missiles
and attack U.S. bases in Japan, hoping to wedge apart the U.S.-South Korean
alliance and induce South Korea to stand with the North against the United
States and Japanese. See Hall, supra note 216.
Dr. Marcus Noland has argued that, while the United States sees North
Korea as a threat to the non-proliferation regime, South Korea sees it as a
direct threat to South Korea national security, and accordingly that South
Korea has a much greater incentive to avoid conflict with North Korea. See
id.
[FN305]. See
Hall, supra note 216.
[FN306]. See
Don Kirk, U.S. to Back Seoul's Plan for Extended Missile Force, Int'l Herald
Trib., July 13, 2000, at 1.
[FN307]. See
Bruce Bennett & Nina Hachigian, Don't Try Regime Change in North Korea,
Int'l Herald Trib., Jan. 31, 2004.
[FN308]. The
South Korean economy is a leading exporter of electronics and automobiles and in
2002 had a GDP of $941.5 billion. See World Factbook 2003: South Korea, supra
note 202.
[FN309]. See
Paul Eckert, North Korea Says U.S. Courts Confrontation, Reuters, Dec. 27, 2002
(citing U.S. Secretary of Defense Donald Rumsfeld). The idea that the U.S. military has the capability to fight two
regional wars simultaneously is one that was articulated in the first Bush
administration and carried through the Clinton administration. See Michael
O'Hanlon, Has U.S. War in Iraq Slowed War on Terror?; Missions: Maintaining
U.S. Military Focus on Two Wars at Once Provides Complex Challenge, Balt. Sun,
Jan. 18, 2004, at 1C. This ability has
been illustrated recently with the U.S. military engaging in operations in Iraq
and Afghanistan simultaneously. See id.
This is not to say that it has not strained U.S. military means,
particularly regarding intelligence assets and linguists who had to be diverted
from the fight against al-Qaida to the war in Iraq. See id. Other sources state that sophisticated
electronic warfare devices and specialized munitions such as cruise missiles
would become scarce. See Richter, supra note 292, at A1. But see John Diamond
& Dave Moniz, Officials: Gulf Buildup Limits Options on Korea, USA Today,
Feb. 3, 2003, at 8A. The author posits
that the strains on the military are much more restrictive, and that in 2002
even Secretary Rumsfeld admitted that U.S. forces could not defeat two major
regional forces at the same time, stating, "We weren't able to meet
that." Id. Retired Army Col. Kenneth
Allard, a professor of national security at Georgetown University, said that
our goal going into the latest Iraq war was to invade Iraq and contain North
Korea; we "do not have enough to do both." Id.; see also Richter,
supra note 292, at A1. Marine General
Peter Pace, vice-chairman of the Joint Chiefs of Staff, said that while the
outcome of a two-front war would "not be in doubt," he said what
would be at risk is the timeline you would achieve victory in; and qualified
that by saying that "anything that is longer will have more risk."
Id.
[FN310]. The
analysis as to the applicable law of armed conflict is adapted in part from
Charles J. Moxley, Jr., Nuclear Weapons and International Law in the Post Cold
War World (2000).
[FN311]. I
base my statements of the law herein primarily on the United States' own
statement of the law, as stated in U.S. military manuals and in the memoranda
and oral arguments presented to the International Court of Justice in the
Nuclear Weapons in the Nuclear Weapons Advisory Opinion, supra note 1, at
809. Military manuals relied on
include: International Law Department of the Center for Naval Warfare Studies,
U.S. Naval War College, United States Department of the Navy Annotated
Supplement to the Commander's Handbook on the Law of Naval Operations (1987)
[hereinafter Naval/Marine Commander's Handbook]; U.S. Dep't. A.F., Commander's
Handbook on the Law of Armed Conflict (Air Force Pamphlet 110-34, 1980)
[hereinafter A.F. Commander's Handbook]; U.S. Dep't. A.F., Int'l Law--The
Conduct of Armed Conflict and Air Operations (A.F. Pamphlet 110-31, 1976)
[hereinafter A.F. Manual on Int'l Law]; U.S. Dep't. Army, The Law of Land
Warfare (FM27-10/18 July 1956) with Change No. 1 (July 15, 1976) [hereinafter
Law of Land Warfare].
[FN312]. See
U.S. Const. art. VI, sec. 2; see also Law of Land Warfare, supra note 311, at 7
(quoting U.S. Const. art. VI, sec. 2).
My analysis of the applicable law is drawn in large measure from
statements of that law by the United States.
[FN313].
A.F. Manual on Int'l Law, supra note 311, at 1-5 n.26.
[FN314]. Id.
at 1-7.
[FN315]. See
generally International Court of Justice: Advisory Proceedings of the Legality
of the Threat or Use of Nuclear Weapons (Question Posed by the General
Assembly), Written Observations on the Request by the General Assembly for an
Advisory Opinion, 7 Crim. L.F. 401 (1996) [hereinafter U.S. ICJ Memorandum/GA
App.]; Naval/Marine Commander's Handbook, supra note 311, at 10- 2; A.F.
Commander's Handbook, supra note 311, at 6-1.
The Law of Land Warfare states that, in the absence of a customary rule
of law or international convention restricting the employment of atomic
weapons, the use of such weapons cannot be deemed unlawful, although the manual
appears to recognize the subjugation of the use of such weapons to the
principles of moderation and necessity. See Law of Land Warfare, supra note
311, at 18; see also A.F. Manual on Int'l Law, supra note 311, at 6-1 to 6-8;
U.S. Dep't. Army, 2 Int'l Law 27-161-2, at 42 (Pamp. 27-161-2, Oct. 1962);
Elliott L. Meyrowitz, Prohibition Of Nuclear Weapons: The Relevance of
International Law 223 (1990) (quoting from U.S. Dept't Army, supra).
[FN316].
Naval/Marine Commander's Handbook, supra note 311, at 10-2.
[FN317]. See
id. at 10-2.
[FN318].
A.F. Commander's Handbook, supra note 311, at 6-1. The Law of Land Warfare states that, in the absence of a
customary rule of law or international convention restricting the employment of
atomic weapons, the use of such weapons cannot be deemed unlawful, although the
manual appears to recognize the subjugation of the use of such weapons to the
principles of moderation and necessity. See Law of Land Warfare, supra note
311, at 18.
[FN319].
A.F. Manual on Int'l Law, supra note 311, at 6-5.
[FN320]. See
id. at 6-1 to 6-8.
[FN321]. Id.
at 6-1.
[FN322]. Id.
at 6-8.
[FN323]. Id.
at 6-7.
[FN324]. See
2 Int'l Law 27-161-2, supra note 315, at 42; see also Meyrowitz, supra note
315, at 223.
[FN325]. A.F.
Manual on Int'l Law, supra note 311, at 5-9.
[FN326].
Naval/Marine Commander's Handbook, supra note 311, at 8-4; see
id. at 5-7, 8-4 n.17, 8-5; see also A.F. Manual on Int'l Law, supra note
311, at 3-3.
The
Naval/Marine Commander's Handbook elaborates that the law "recognizes that
a certain number of noncombatants may become inadvertent victims" and
permits this unavoidable destruction "when not disproportionate to the
military advantage to be gained." Naval/Marine Commander's Handbook, supra
note 311, at 6-38. The Naval/Marine
Commander's Handbook further states that the use of force in self-defense
against armed attack or the threat of imminent armed attack rests upon the
elements of necessity and proportionality. See Naval/Marine Commander's
Handbook, supra note 311, at 4-10 (citing 2 Restatement (Third) sec. 905(1)(a),
cmt. 3, at 387; 2 Restatement (Third) sec. 905(1)(b) & Reporters' Note 3,
at 388-89; U.S. Navy Reg. 1973, art. 0915 (1973)).
The A.F.
Commander's Handbook adds that "every feasible precaution should be taken
to keep civilian casualties and damage to a minimum." A.F. Commander's
Handbook, supra note 311, at 3-3.
[FN327].
Naval/Marine Commander's Handbook, supra note 311, at 5-5 (citing Lt. Col.
William Fenrick, USMC, The Rule of Proportionality and Protocol I in
Conventional Warfare, 98 Mil. Law Rev. 91 (1982); Solf A. Waldemar, Protection
of Civilians Against the Effects of Hostilities Under the Customary
International Law Protocol I, 1 Am. U.J. Int'l L. & Pol'y 117, 128- 35
(1886) ); see also Naval/Marine Commander's Handbook, supra note 311, at 6- 38;
A.F. Manual on Int'l Law, supra note 311, at 6-1. As to the demanding nature of the necessity requirement in the
jus ad bellum context of self-defense, The Naval/Marine Commander's Handbook
quotes the requirement of U.S. Navy Regulations, 1990, Article 0915, that the
right of self-defense must be exercised only "as a last resort" and
then only "to the extent absolutely necessary to accomplish the end required."
Naval/Marine Commander's Handbook, supra note 311, at 4-10.
[FN328].
Naval/Marine Commander's Handbook, supra note 311, at 5-5.
[FN329]. Id.
at 5-4 n.6 (citing United States v. List et al., 11 TWC 1253-54 (1950)).
[FN330].
Naval/Marine Commander's Handbook, supra note 311, at 5-4 n.6.
[FN331]. See
id. at 5-3. The A.F. Manual on Int'l
Law relies upon this same statement of the rule by the U.S. Military Tribunal
in The Hostage Case: "The destruction of property to be lawful must be
imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of international
law. There must be some reasonable
connection between the destruction of property and the overcoming of the enemy
forces." A.F. Manual on Int'l Law, supra note 311, at 15-5, 15-10 n.40
(citing The Hostage Case, United States v. List et al., 11 Trials of War
Criminals Before the Nuremberg Military Tribunals Under Control Council Law 10,
at 1253-54 (1950)).
[FN332].
A.F. Commander's Handbook, supra note 311, at 6-1.
[FN333].
A.F. Manual on Int'l Law, supra note 311, at 6-3.
[FN334].
Naval/Marine Commander's Handbook, supra note 311, at 5-7. The handbook defines
"noncombatants" as "those individuals who do not form a part of
the armed forces and who otherwise refrain from the commission or direct
support of hostile acts." Id. at 5-7.
[FN335]. Id.
at 5-8.
[FN336]. Id.
at 8-1; see also Law of Land Warfare, supra note 311, at 16.
[FN337].
Naval/Marine Commander's Handbook, supra note 311, at 5-8.
[FN338]. Id.
at 8-1 (citations omitted). Principle
No. 1 identified by the handbook is "[t]he right of belligerents to adopt
means of injuring the enemy is not unlimited." Id. at 8-1.
[FN339]. Id.
at 8-1 nn.3-4.
[FN340]. See
A.F. Commander's Handbook supra note 311, at 6-1.
[FN341].
A.F. Manual on Int'l Law, supra note 311, at 6-3.
[FN342].
Id.
[FN343]. Id.
(emphasis omitted).
[FN344].
Id.
[FN345].
Naval/Marine Commander's Handbook supra note 311, at 10-19 n.49.
[FN346].
A.F. Manual on Int'l Law, supra note 311, at 6-3.
[FN347]. Id.
at 6-9 n.7.
[FN348].
Navy JAG Trident I, supra note 272, at 9 (citing A.F. Manual on Int'l Law,
supra note 311, paras. 6-3, 6-3.c).
[FN349].
A.F. Manual on Int'l Law, supra note 311, at 1-6.
[FN350]. Id.
at 6-2.
[FN351]. See
Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Request
for Advisory Opinion Submitted by the World Health Organization) & Legality
of the Threat or Use of Nuclear Weapons (Request for Advisory Opinion Submitted
by the General Assembly of the United States), Verbatim Record, Public Sitting
Held Nov. 15, 1995, 10 a.m., President Bedjaoui presiding, CR 95/34, at 49-50
[hereinafter ICJ Hearing, Nov. 15, 1995].
In its arguments before the ICJ, the United States acknowledged that
scientific evidence could justify a total prohibition of nuclear weapons if it
demonstrated the unlawfulness of all such uses: "[S]cientific evidence
could only justify a total prohibition on the use of nuclear weapons if such evidence
covers the full range of variables and circumstances that might be involved in
such uses." Id.
[FN352]. See
Navy JAG Trident I, supra note 272, at 12 (citing W. T. Mallison, Jr., The Laws
of War and the Juridical Control of Weapons of Mass Destruction in General and
Limited Wars, 36 Geo. Wash. L. Rev. 308, 331 (1967); see also Myres S. McDougal
& Florentino P. Feliciana, Law and Minimum World Public Order; The Legal
Regulation of International Coercion 100 n.83 (1961); William O'Brien, Legitimate
Military Necessity in Nuclear War, 2 World Polity 35, 100 n.83 (1960)).
[FN353]. See
generally Joint Chiefs of Staff, Joint Pub 3-12.1, Doctrine for Joint Theater
Nuclear Operations (Joint Pub. 3-12.1, Feb. 9, 1996), available at
http://www.dtic.mil/doctrine/jel/new_pubs/jp3_12_1.pdf (last visited Apr. 6,
2004) [hereinafter 1996 Doctrine for Joint Theater Nuclear Operations].
[FN354]. See
id. at III-10
[FN355]. See
Joint Chiefs of Staff, Doctrine for Joint Nuclear Operations (Joint Pub 3-12,
Dec. 15, 1995), available at http://
www.dtic.mil/doctrine/jel/new_pubs/jp3_12.pdf (last visited Apr. 6, 2004)
[hereinafter 1995 Doctrine for Joint Nuclear Operations]. The Doctrine for Joint Nuclear Operations
was a reissue (with minor adjustments) to a 1993 manual of the same name and
Joint Publication number. See Joint Chiefs of Staff, Doctrine for Joint Nuclear
Operations (Joint Pub. 3-12, April 29, 1993) [hereinafter 1993 Doctrine for
Joint Nuclear Operations].
While the
references to use of nuclear weapons against enemy combatants and for other
military objectives could be said to imply a more nuanced position, such a
nuanced reading itself seems overly theoretical for this kind of operational
document. The core of the policy, as
communicated to the military by this authoritative document, appears to be that
of the legality of the use of nuclear weapons.
Doctrine for Joint Nuclear Operations supra, at II-1. The Doctrine for
Joint Nuclear Operations provides:
If conflicts
arise between the contents of this publication and the contents of Service
publications [presumably, the publications of any one service], this
publication will take precedence ... unless the Chairman of the Joint Chiefs of
Staff, normally in coordination with other members of the Joint Chiefs of
Staff, has provided more current and specific guidance.
Id. at
i.
[FN356]. The
United States has recognized these rules as arising under customary and treaty
law and general principles of law. See Moxley, supra note 7, at 133 n.77, 136-39
nn.88-91 (proportionality), 124-25 nn.54-56 (necessity), 125-29 nn.57-65
(moderation and discrimination), 146-48 nn. 111-19 (neutrality), 85-87
nn.246-52.
[FN357]. See
A.F. Manual on Int'l Law, supra note 311, at 6-7.
[FN358]. Id.
at 6-1.
[FN359]. See
id. at 6-7.
[FN360]. Id.
at 1-6.
[FN361]. Id.
at 1-15 n.35.
[FN362]. Law
of Land Warfare, supra note 311, at 3.
[FN363].
A.F. Manual on Int'l Law, supra note 311, at 1-7.
[FN364]. Id.
at 6-7.
[FN365]. See
ICJ Hearing, Nov. 15, 1995, supra note 351, at 71; A.F. Manual on Int'l Law,
supra note 311, at 6-3, 6-7; Naval/Marine Commander's Handbook, supra note 311,
at 10-2.
[FN366]. See
Nuclear Weapons Advisory Opinion, supra note 1, at 822, P 42; 823, P 48; 829. P
95; see also id. at 936-37. PP 27-33 (Higgins, J., dissenting); id. at 922, PP
6(xi)-6(xii) (Weeramantry, J., dissenting); id. at 869 (Shahabuddeen, J.,
dissenting).
[FN367]. Id.
at 819 P 20.
[FN368]. Id.
at 936, P 26 (Higgins, J., dissenting).
See also id. at 836, 839, 840, 842 (Schwebel, J., dissenting).
[FN369]. Id.
at 869 (Shahabuddeen, J., dissenting).
[FN370]. Id.
at 915 (Weeramantry, J. dissenting).
[FN371]. ICJ
Hearing, Nov. 15, 1995, supra note 351, at 68-69.
[FN372]. Id.
at 70.
[FN373]. Id.
at 71.
[FN374].
Id.
[FN375].
Id.
[FN376].
Id.
[FN377].
U.S. ICJ Memorandum/GA App., supra note 315, at 416.
[FN378]. See
Nuclear Weapons Advisory Opinion, supra note 1, at 829, P 91 (citing United Kingdom,
Written Statement, at 40, P 3.44, 75, P 4.2(3), 53, P 3.70 and United States of
America, Oral Statement, CR 95/34, at 89-90), 830, P 96, 831 P 105(E). Judges Weeramantry and Higgins in their
dissenting opinions pointed to the ambiguity introduced by the Court's use of
the word "generally." See id. at 881, P c(ii) (Weeramantry, J.,
dissenting), 936 para. 25 (Higgins, J., dissenting).
Judge
Weeramantry in his dissenting opinion in the WHO Advisory Opinion proceeding
noted that it is the Court's job to make findings as to disputed facts. Judge Weeramantry cited the Court's
observation in the Advisory Opinion on Namibia that "to enable a court to
pronounce on legal questions, it must also be acquainted with, take into
account and, if necessary, make findings as to the relevant factual
issues." WHO Advisory Opinion, 1996 I.C.J. 68, at 161 (Weeramantry, J.,
dissenting) (citing I.C.J. Reports 1971 at 27). Judge Weeramantry further noted
the contentions made by Finland to the effect that:
[T]he legality
of the use of nuclear weapons can only be determined in respect of specific
circumstances, for there can be a large number of potential situations--e.g.,
first use, counter use, different practices of targeting, different types of
nuclear weapons--and [that] the Court cannot hypothesize about all these
possibilities.
WHO Advisory
Opinion, 1996 I.C.J. 68, at 161 (citing Written Statement of Finland at
4).
The Court's
language--"scarcely reconcilable"--seems hedged, perhaps the product
of drafting compromise. The Court went
on to state: "Nevertheless, the Court considers that it does not have
sufficient elements to enable it to conclude with certainty that the use of
nuclear weapons would necessarily be at variance with the principles and rules of
law applicable in armed conflict in any circumstance." Nuclear Weapons
Advisory Opinion, supra note 1, at 829, P 95.
[FN379]. See
Nuclear Weapons Advisory Opinion, supra note 1, at 829, PP 91 (citing United
Kingdom, Written Statement, at 53, P 3.70 and United States of America, Oral
Statement, CR 95/34, at 89-90), 92, 94.
[FN380]. Id.
at 829 P 91 (citing United Kingdom, Written Statement, at 53 P 3.70; United
States of America, Oral Statement, CR 95/34, at 89-90).
[FN381]. Id.
at 829, P 92.
[FN382]. Id.
at 829, P 94.
[FN383]. See
id. at 921 nn.183-84 (citing Gen. Colin Powell, A Soldier's Way 324 (1995))
("No matter how small these nuclear payloads were, ... [it] would be
crossing a threshold. Using nukes at
this point would mark one of the most significant military decisions since
Hiroshima .... I began rethinking the practicality of those small nuclear
weapons."); see also Bull. Atomic Scientists, May 1985, at 35, 37.
[FN384]. See
Nuclear Weapons Advisory Opinion, supra note 1, at 904.
[FN385]. See
id. at 821-22, P 35. See generally Doctrine for Joint Nuclear Operations, supra
note 355.
For further
discussions of the effects of nuclear weapons, see, e.g., WHO Advisory Opinion,
supra note 378, at 115-26 (Weeramantry, J., dissenting); id. at 173-80 (Koroma,
J., dissenting). Judge Weeramantry in
that proceeding further pointed out differences between the effects of
conventional and nuclear weapons: "The use of conventional weapons in war
does not spread disease. It does not
cause genetic deformities. It does not
imperil crops. It does not cause intergenerational climatic effects which
imperil the global food supply."
Id. at 147 (Weeramantry, J., dissenting).
Judge
Shahabuddeen stated: "[T]he use of nuclear weapons could result, even in
the case of neutral countries, in destruction of the living, in sickness and
forced migration of survivors, and in injury to future generations to the point
of causing serious illness, deformities and death, with the possible extinction
of all life." Nuclear Weapons Advisory Opinion, supra note 1, at 873
(Shahabuddeen, J., dissenting); see also Dep't. Army et al., NATO Handbook on
the Medical Aspects of NBC Defensive Operations A MedP-6(B) at I.1 (1996)
[hereinafter NATO Handbook on the Medical Aspects of NBC Defensive Operations]
(adopted as Army Field Manual 8-9, Navy Medical Publication 5059, A.F. Joint
Manual 44-151); Doctrine for Joint Theater Nuclear Operations, supra note 357,
at I-1-I-2; Nuclear Weapons Advisory Opinion, supra note 1, at 865
(Shahabuddeen, J., dissenting); United Nations Department for Disarmament
Affairs, Nuclear Weapons: A Comprehensive Study 6-8 (1991).
[FN386]. See
NATO Handbook on the Medical Aspects of NBC Defensive Operations, supra note
385, at I.1; Nuclear Weapons Advisory Opinion, supra note 1, at 873 (citing
Dictionnaire Encyclopedique D'Electronique), 888 (citing Radioecology (1995))
(Weeramantry, J., dissenting). See generally International Physicians for the
Prevention of Nuclear War, Briefing Book on Nuclear War (1992) [hereinafter
International Physicians for the Prevention of Nuclear War]. Numerous major
studies during the Cold War attempted to quantify the casualties that could be
expected from limited nuclear attacks.
Several found that civilian casualties from a Soviet counterforce strike
on the United States would result in virtually as many deaths from radiation as
from direct blast. See William Daugherty et al., The Consequences of
"Limited" Nuclear Attacks on the United States, 10 Int'l Security,
Winter 1986, at 35; Frank N. von Hippel et al., Civilian Casualties from
Counterforce Attacks, 259 Sci. Am., Sept. 1988, at 42; Barbara G. Levi et al.,
Civilian Casualties from "Limited" Nuclear Attacks on the USSR, 12
Int'l Security, Winter 1987/1988, at 168.
[FN387]. See
Nuclear Weapons Advisory Opinion, supra note 1, at 821-22, P 35; see also id.
at 905, 910 (Weeramantry, J., dissenting); id. at 932 (Koroma, J., dissenting);
Doctrine for Joint Theater Nuclear Operations, supra note 357, at III-2, III-3;
Charles Kegley & Eugene Wittkopf, The Nuclear Reader: Strategy, Weapons,
War 320-26 (1985); NATO Handbook on the Medical Aspects of NBC Defensive
Operations, supra note 385, at 320; Office of Technology Assessment, U.S.
Congress, The Effects of Nuclear War 113 (May 1979) [hereinafter The Effects of
Nuclear War]; 8 Charles S. Grace, Nuclear Weapons: Principles, Effects and
Survivability 29-30 (1994); Tsipis, supra note 267, at 44-74, 115-295.
[FN388]. See
Doctrine for Joint Theater Nuclear Operations, supra note 353, at II-7; Nuclear
Weapons Advisory Opinion, supra note 1, 35 I.L.M. at 829, P 95; id. at 863-64
(Shahabuddeen, J., dissenting) (quoting Javez Perez de Cuellar, Statement at
the University of Pennsylvania, 24 March 1983, in 6(1) Disarmament 91);
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons -
Declarations and Separate Opinions Not Reproduced at 35 I.L.M. 809 (1996), at
1347, P 20 (declaration of President Bedjaoui); Nuclear Weapons Advisory
Opinion, supra note 1, 35 I.L.M. at 839 (Schwebel, J., dissenting); id. at 904
(Weeramantry, J., dissenting); id. at 931-32 (Koroma, J., dissenting); id. at
834 (Fleischhauer, J., separate opinion).
[FN389]. See
Nuclear Weapons Advisory Opinion, supra note 1, at 821-22, P 35; see also id.
at 864 (Shahabuddeen, J., dissenting); NATO Handbook on the Medical Aspects of
NBC Defensive Operations, supra note 385, at I.1.3 sec. 303(c), at 320; Nuclear
Weapons: A Comprehensive Study, supra note 385, at 79- 84. It is estimated that only half of the
suffering would be over as of the end of the war itself: "A failure to
achieve [social and economic] viability ... would result in many additional deaths,
and much additional economic, political, and social deterioration. This postwar damage could be as devastating
as the damage from the actual nuclear explosions." The Effects of Nuclear
War, supra note 387, at 5. See John W. Gofman, Radiation and Human Health
298-99 (1983) (estimating that the plutonium fallout will cause a total of
104,460 lung cancer deaths in the United States, and 950,000 world wide).
Investigators have also concluded that the mortality rates during the 1950-1965
atomic testing period stopped getting better after decades of improvement. When
atomic testing was banned, the mortality rate improved once again. See Jay
Gould et al., Deadly Deceit: Low-Level Radiation, High-Level Cover Up 15, 92
(1990); see also Marvin S. Soroos, Preserving the Atmosphere as a Global
Commons, 40 Envt., Mar. 1998, at 6; United Nations Sci. Committee on the
Effects of Atomic Radiation, Ionizing Radiation: Sources and Biological Effects
19 (1982); Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer
Space, and under Water, 2 I.L.M. 889 (1963); Nat'l Academy of Sci., Nuclear
Arms Control: Background and Issues 190-95 (1985). See generally G. T. Seaborg,
Kennedy, Krushchev, and the Test Ban (1981).
[FN390]. See
The Effects of Nuclear War, supra note 387, at 22-25, 81; Nuclear Weapons Advisory
Opinion, supra note 1, at 868, 870, 879 (Weeramantry, J., dissenting).
[FN391]. See
Doctrine for Joint Nuclear Operations, supra note 355, at i, I-2; see also
Moxley, supra note 7, at 585-605.
[FN392].
Doctrine for Joint Nuclear Operations, supra note 355, at i, I-6, I-7 (emphasis
omitted).
[FN393].
Treaty for the Prohibition of Nuclear Weapons in Latin America ("Treaty of
Tlatelolco"), Feb. 14, 1967, 22 U.S.T. 762, 634 U.N.T.S. 762, 6 I.L.M.
521; see also Nuclear Weapons Advisory Opinion, supra note 1, at 863-64
(Shahabuddeen, J., dissenting) (quoting from Treaty of Tlatelolco).
[FN394].
Doctrine for Joint Nuclear Operations, supra note 355, at I-2 (emphasis
omitted).
[FN395].
Id.
[FN396].
Navy JAG Trident I, supra note 272, at 7.
[FN397].
U.S. Dep't of Navy, Office of the Judge Advocate General, Memorandum for the
Assistant Secretary of the Navy (Research & Development), Review of the
Legality of the TOMAHAWK Cruise Missile 12 (Jan. 6, 1977) [hereinafter Navy JAG
Tomahawk], available at http:// www.nuclearweaponslaw.com/FOIA_Materials.html
(last visited Apr. 16, 2004) (formerly restricted data, redacted version
obtained under the Freedom of Information Act by Charles J. Moxley, Jr.).
[FN398]. Navy
JAG Tomahawk, supra note 397, at 17 (emphasis omitted) (citing the St.
Petersburg Declaration renouncing the Use, in Time of War, of Explosive
Projectiles under 4000 Grammes Weight, November 29/December 11, 1868, I A, J.
Int'l L. Supp. 95 (1907)).
[FN399]. JAG
Trident I, supra note 272, at 6.
[FN400].
Navy JAG Tomahawk, supra note 397, at 6.
[FN401]. ICJ
Hearing, Nov. 15, 1995, supra note 351, at 71; U.S. ICJ Memorandum/GA App.,
supra note 315, at 23.
[FN402]. See
supra notes 267-72 and accompanying text.
[FN403]. See
Tsipis, supra note 270, at 139; Moxley, supra note 45, at 506 n.8 and
accompanying chart (regarding US weapons' CEPs); see also Kosta Tsipis, Cruise
Missiles, Sci. Am., Feb. 1977, 20-29; 1 Thomas B. Cochran et al., Nuclear Weapons
Databook, United States Nuclear Forces and Capabilities 118, 146 (1984); Nick
Cook & John Boatman, USAF Lifts Veil on 'Secret' ACM, 14 Jane's Defense
Weekly 549, no. 13, Sept. 29, 1990; AGM-129 Advanced Cruise Missile, FAS, at
http://www.fas.org/nuke/guide/usa/bomber/acm.htm; Robert S. Norris &
William M. Arkin, U.S. Strategic Nuclear Forces End of 1998; Abstract, 55 Bull.
Atomic Scientists, no. 1, Jan. 1999.
[FN404]. See
David Fulghum, Clashes with Iraq Continue After Heavy Air Strike, Aviation Week
& Space Tech., Jan. 25, 1993, at 38.
[FN405]. See
Moxley, supra note 45, at 525-27, nn.7-17, and accompanying text; see also
United States General Accounting Office, Report To Congress: Operation Desert
Storm: Evaluation of the Air War 5-7 (July 1996); BBC Summary of World
Broadcasts, Sept. 7, 1998 [hereinafter BBC Summary]; Pakistan--Cruise Missile
Found Near Pakistan Nuclear Test Site, FT Asia Intelligence Wire, Aug. 24, 1998
[hereinafter Pakistan--Cruise Missile Found].
[FN406]. See
ICJ Hearing, Nov. 15, 1995, supra note 351, at 80 (citing the
Secretary-General's 1990 Report on nuclear weapons, at 75, P 290); Tsipis,
supra note 270, at 72-76; Ashton B. Carter, Sources of Error and Uncertainty,
in Managing Nuclear Operations 611-39 (1987).
As the United States, through its attorney McNeill, argued to the ICJ,
the effects of nuclear weapons depend on such factors as "the explosive
yield and height of the burst of individual weapons, on the characteristics of
their targets, as well as on climatic and weather conditions," ICJ Hearing, Nov. 15, 1995, supra note 351,
at 80 (citing the Secretary-General's 1990 Report of Nuclear Weapons, at 75, P 290), and on "the technology that
occasions how much radiation the weapon may release, where, in relation to the
earth's surface it will be detonated, and the military objective at which it
would be targeted." Id. at 89. As
to the significance of such factors, McNeill argued, "These differences,
distinctions and variables cannot be ignored; they are critical to the
appropriate legal analysis." Id. at 87.
[FN407]. See
Fulghum, supra note 404, at 38; see also Stanley Kandebo, Operation Desert
Storm--Tomahawk Missiles Excel in First Wartime Use, 134 Aviation Week &
Space Tech, no. 3, at 61 (Jan. 21, 1991).
[FN408]. See
BBC Summary supra note 405; 2nd Unexploded U.S. Missile Found In Pakistan, The
Com. Appeal (Memphis, TN), Aug. 30, 1998, at A2; see also John Diamond, US
Strikes May Not Be The Last, Warns Pickering, Birmingham (Ala.) Post, Aug. 22,
1998, at 8; Ian Mackinnon, Pakistan Defuses US Cruise Missile, The Scotsman
(Edinburgh), Aug. 25, 1998, at 8 [hereinafter Mackinnon, Pakistan];
Pakistan--Cruise Missile Found, supra note 405; Louise Branson, US Bombs
"Terrorist Bases," Straits Times (Singapore), Aug. 22, 1998, at
1.
According to
a Pakistani foreign ministry spokesman, the two missiles ending up in Pakistan
had been fired from U.S. ships 120 nautical miles off the coast of Pakistan,
purportedly within the country's territorial waters, and landed near the sites
where Pakistan had tested nuclear weapons on May 28 and 30, 1998. See
Mackinnan, Pakistan, supra, at 8. Thus,
the missiles that went astray had not even been sent a long distance.
A third
unexploded warhead with its cruise missile delivery vehicle was reportedly
found in Afghanistan. See BBC Summary,
supra note 405 (Taliban said ready to sell unexploded US cruise missile
"to any country").
It is
sobering that these deviations from targeting could occur in an operation where
the United States apparently went to great lengths to achieve accuracy and
precision, even to the point, in planning an attack on a chemical plant in
Sudan, of modeling the "likely plume of [the] attack beforehand, using
such factors as weather conditions, the building's structure and properties of
the suspected chemicals inside." See John-Alex Romano, Combating Terrorism
and Weapons of Mass Destruction: Reviving the Doctrine of a State of Necessity,
87 Geo. L.J. 1023 (Apr. 1999) (quoting Eugene Robinson & Dana Priest,
Reports of U.S. Strikes' Destruction Vary; Afghanistan Damage 'Moderate to
Heavy'; Sudan Plant Leveled, Wash. Post, Aug. 22, 1998, at A1).
[FN409]. See
As Strikes Mount, So Do Errors, Wash. Times, May 11, 1999, at A1 [hereinafter
As Strikes Mount]; Joyce Price, Pentagon Regrets "Embassy Error,"
Wash. Times, May 9, 1999, at C10; Bill Gertz & Rowan Scarborough, Inside
the Ring, Wash. Times, May 14, 1999, at A9.
[FN410]. See
Doctrine for Joint Theater Nuclear Operations, supra note 353, at I3-I5; see also
John F. McCarthy, Jr., The Case for the B-1 Bomber, 1 Int'l Security, No. 2,
Fall 1976, 78, 84-85; Paul Bracken, The Command and Control of Nuclear Force 6
(1983) ("Never has there been a Soviet-American confrontation during this
modern period ... The Cuban missile crisis of 1962 was the highest level alert
ever declared by the United States.").
At the height of the crisis, the U.S. nuclear alert level was raised to
Defense Condition 2, one stage before full thermonuclear war. Strategic Air Command authorized
nuclear-armed B-52 bombers to fly past their fail-safe points to preplanned
targets in the Soviet Union before being recalled. See id.
[FN411]. Max
Boot, Sparing Civilians, Buildings and Even the Enemy, N.Y. Times, Mar. 30,
2003. The article states that even
smart bombs miss their targets "7 percent to 10 percent of the
time." Id.
[FN412]. See
id.
[FN413]. See
Roxana Tiron, Poor Intelligence Hampers Precision Weapon Performance, Nat'l
Def., Mar. 1, 2004.
[FN414]. See
As Strikes Mount, supra note 409; see also Price, supra note 409; Kosta Tsipis,
supra note 267, at 68-76, 114-15, 121-296; The Doctrine for Joint Theater
Nuclear Operations, supra note 353, at I3-I5.
Reportedly
the "success level of the United States' most advanced fighters" is
less than the 83% overall success rate that the Navy attained with its BG-109
Tomahawk cruise missiles (conventional) during the 1991 Gulf War. See Fulghum,
supra note 404, at 38.
[FN415]. See
Kosta Tsipis, supra note 267, at 68-76, 114-15, 121-296; see also International
Physicians for the Prevention of Nuclear War, supra note 386 (quoted in Peter
Weiss, et al., Draft Memorial in Support of the Application by the World Health
Organization for an Advisory Opinion by the Court of International Justice of
the Legality of the Use of Nuclear Weapons Under International Law, Including
the W.H.O. Constitution, reprinted in 4 Transnat'l L. & Contemp. Probs.
721, 729-32 (1994)).
[FN416]. See
Kosta Tsipis, supra note 267, at 68-76.
The Navy
Judge Advocate General, in his review of the lawfulness of the Tomahawk Cruise
Missile, acknowledged that targeting of the missile involves questions as to
the "probability" of the missile performing as planned, all subject
to the unknown effects of possible "enemy action." Navy JAG Tomahawk, supra note 397, at
5.
[FN417]. ICJ
Hearing, Nov. 15, 1995, supra note 351, at 71.
While the
damage caused by the Iraqi attack on Kuwait caused extensive environmental
damage, within less than ten years such effects have largely been dissipated.
See Tiffani Y. Lee, Environmental Liability Provisions under the U.N.
Compensation Commission: Remarkable Achievement with Room for Improved
Deterrence, 11 Geo. Int'l Envtl. L. Rev. 209 (1998); Kyle Pope, Prognosis Good
for Oil Fields, Hous. Chron., Feb. 23, 1991; Kuwait: Pollution Control
Equipment Market, Industry Sector Analysis, Dept. of State, 1998 (for samples
of the Kuwaiti damage assessment).
[FN418]. See
Nuclear Weapons Advisory Opinion, supra note 1, at PP 34-35, 35 I.L.M. at
821-22; see also NATO Handbook on the Medical Aspects of NBC Defensive
Operations, supra note 385, at I.1 sec. 102(a); International Physicians for
the Prevention of Nuclear War, supra note 386; Carl Sagan, Nuclear War and
Climatic Catastrophe: Some Policy Implications, 62 Foreign Aff. 257, 273
(Winter 1983/1984). See generally The Effects of Nuclear War, supra note 387,
at 16-17 (it is estimated that only half of the suffering would be over as of
the end of the war itself: "A failure to achieve [social and economic]
viability ... would result in many additional deaths, and much additional
economic, political, and social deterioration.
This post war damage could be as devastating as the damage from the actual
nuclear explosions"). Id. at 5.
[FN419]. 35
I.L.M. at 887 (Weeramantry, J., dissenting).
[FN420]. Id.
at 873 (citing Dictionnaire Encyclopedique D'Electronique).
[FN421]. Id.
at 888 (quoting 9 Encyc. Britannica Micropaedia (1992 ed.); id. at 893 (citing Radioecology (Holm ed., 1995)).
[FN422]. Id.
at 895.
[FN423]. 35
I.L.M. at 934 (Koroma, J., dissenting).
[FN424]. 35
I.L.M. at 863-64 (Shahabuddeen, J., dissenting) (quoting de Cuellar, supra note
388, at 91).
[FN425].
Doctrine for Joint Nuclear Operations, supra note 355, at II-1, II-6,
II-7.
[FN426]. Id.
at I-6. The manual further stated:
Terminating
a global war involving the use of large numbers of WMD on both sides and the
degradation and or destruction of their central means of control could be
vastly more difficult than ending a theater or regional nuclear conflict
involving the relatively constrained use of a limited number of nuclear
weapons. In the latter case,
war-termination strategies may more readily lead to a cessation of hostilities,
assuming that the belligerents' interests in war termination are mutual.
Id.
[FN427].
Doctrine for Joint Theater Nuclear Operations, supra note 353, at v-vi.
[FN428].
Doctrine for Joint Nuclear Operations, supra note 355, at II-7.
[FN429].
Doctrine for Joint Theater Nuclear Operations, supra note 353, at I-1 (emphasis
omitted).
[FN430].
U.S. ICJ Memorandum/GA App., supra note 315, at 420 (citing Law of Land
Warfare, supra note 311, at 18). The
memorandum noted that the prohibition against unnecessary suffering has been
applied, for example, to lances with barbed tips and bullets that are
irregularly shaped, scored or coated with a substance that would unnecessarily
inflame a wound. U.S. ICJ Memorandum/GA
App., supra note 315, at 420 n.65.
[FN431]. ICJ
Hearing, Nov. 15, 1995, supra note 351, at 72.
[FN432]. See
supra notes 315-50 and accompanying text.
[FN433]. ICJ
Hearing, Nov. 15, 1995, supra note 351, at 68 (emphasis added).
[FN434]. See
A.F. Manual on Int'l Law, supra note 311, at 15-2; see also Ian Brownie,
International Law and the Use of Force by States 150-71 (1963), Matthew
Lippman, Crimes Against Humanity, 17 B.C. Third World L.J. 171, 189- 201 (1997)
(International Law and Human Rights Edition); Mark Allan Gray, The
International Crime of Ecocide, 26 Cal. W. Int'l L.J. 215, 265 (1996) (citing
Geoff Gilbert, The Criminal Responsibility of States, 39 Int'l & Comp. L.Q.
345, 357, 366 (1990)); Report of the Commission to the General Assembly on the
work of its forty-sixth session, U.N. GAOR, 49th Sess., Supp. No. 10, U.N. Doc.
A/49/10 (1994), at 348-49.
[FN435]. See
Brownie, supra note 434, at 133-49; Telford Taylor, Nuremberg and Vietnam: An
American Tragedy 82-88 (1970).
[FN436]. See
A.F. Manual on Int'l Law, supra note 311, at 15-2
[FN437]. See
id. at 15-3, 15-8 n.13 (citing James Molony Spaight, Air Power and War Rights
57, 58 (1947)).
[FN438]. See
id. at 15-2 to 15-3; see also The Law of Land Warfare, supra note 311, at 178;
The A.F. Commander's Handbook, supra note 311, at 8-1; The Naval/Marine
Commander's Handbook, supra note 311, at 6-5, 6-5 n.13 (citing United States v.
Wilhelm List et al., 9 TWC 127 (1950)); Cherif Bassiouni & Peter Manikas,
The Law of the International Criminal Tribunal for the Former Yugoslavia 361,
362 (1996) (citing The High Command Case, 2 Trials of War Criminals Before the
Nuremberg Military Tribunals Under Control Council Law No. 10 (1949) (This case
is also known as United States v. Wilhelm von Leeb)).
[FN439]. The
A.F. Manual on Int'l Law, supra note 311, at 15-2, 15-8 n.13 (citing Spaight,
supra note 437, at 57-58 (1947)).
[FN440]. Id.
at 15-8 n.13.
[FN441]. Id.
at 15-3, 15-9 n.23 (citations omitted).
[FN442]. Id.
at 10, 15-2 to 15-3; see also Law of Land Warfare, supra note 311, at 178.
[FN443].
Naval/Marine Commander's Handbook, supra note 311, at 6-5 n.13 (quoting United
States v. Wilhelm List et al., 9 Trials of War Criminals Before the Nuremberg
Military Tribunals 127 (1950)).
[FN444]. Id.
at 6 n.13.
[FN445]. Id.
at 6-5.
[FN446]. In
re Yamashita, 327 U.S. 1, 15 (1946).
[FN447]. See
International Committee of the Red Cross, Commentary on Protocol Additional to
the Geneva Conventions of Aug. 12, 1949, and relating to the Protection of
Victims of International Armed Conflicts (Protocol I), June 8, 1997, Part V:
Execution of the Conventions and of This Protocol: sec. II--Repression of
Breaches of the Conventions and of this Protocol, Art. 85-- Repression of
Breaches of This Protocol, available at www.icrc.org/ihl.nsf (last visited Apr.
16, 2004) [hereinafter International Committee of the Red Cross].
[FN448]. See
id. at P 3474; Amnesty International--Report--IOR 40/10/98 May 1998 United Nations,
The International Criminal Court Making the Right Choices--Part V
Recommendations to the Diplomatic Conference, available at
www.amnesty.it/campaign/icc/library/aidocs/IOR401098.html (last visited Apr.
16, 2004); see also The A.F. Manual on Int'l Law, supra note 311, at 15-1 to
15-2; 15-8 n.12 (quoting Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field, adopted Aug.
12, 1949, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition
of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, adopted Aug.
12, 1949, 75 U.N.T.S. 85, and other Geneva Conventions).
[FN449]. See
International Committee of the Red Cross, supra note 447.
[FN450]. See
International Criminal Tribunal for the Former Yugoslavia, Statute of the
International Tribunal, as amended May 13, 1998, adopted May 25, 1993, art.
3(b), available at http://www.un.org/icty/basic/statut/statute.htm (last
visited Apr. 16, 2004); Jordan J. Paust, International Law Association--
American Branch: Committee on a Permanent International Criminal Court: The
Preparatory Committee's "Definition of Crimes"--War Crimes, 8 Crim.
L.F. 431, 438-41 (1997) (emphasis omitted) (citing U.N. Doc. A/CONF. 95/15
(1980), reprinted in 19 I.L.M. 1523); Report of the Secretary-General pursuant
to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704
& Add. l (1993), Annex, arts. 2(d), 3(b); Prosecutor v. Karadzic, Case No.
IT-95-5-I (Int'l Trib. for Former Yugo., Indictment, July 24, 1995), at 27, 41,
44; Report of the International Law Commission on Its Second Session, June 5-
July 29, 1950, 5 U.N. GAOR, Supp. No. 12, at 11-14, at 99, U.N. Doc. A/1316
(1950); 11 Trials of War Criminals 757
(1948); Report of Justice Robert H. Jackson to the President of the United
States, released June 7, 1945, reprinted in Paust et al., Int'l Criminal Law at
1027; Instructions for the Government of Armies of the United States in the
Field, General Orders No. 100, Apr. 24, 1863, arts. 16, 44, [Lieber Code];
Responsibilities Commission of the Paris Peace Conference, List of War Crimes
(1919); Geneva Convention for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field, adopted Aug. 12, 1949, art. 50-51, 75 U.N.T.S.
31, available at http://www.icrc.org/ihl.nsf (last visited Apr. 16, 2004).
[FN451].
Paust, supra note 450, at 438-41 (citations and emphasis omitted).
[FN452]. 35
I.L.M at 901 (Weeramantry, J., dissenting).
[FN453].
Id.
[FN454]. Id.
at 48.
[FN455].
Id.
[FN456]. Id.
(citing Ian Brownlie, Some Legal Aspects of the Use of Nuclear Weapons, 14
Int'l & Comp. L. Q. 445 (1965)).
[FN457]. ICJ
Hearing, Nov. 15, 1995, supra note 351, at 68.
[FN458]. See
supra notes 340-44, 367-68 and accompanying text.
[FN459]. See
Moxley, supra note 7, at 43-44, 61-62, 65.
[FN460]. See
Moxley, supra note 7, at 62; Naval/Marine Commander's Handbook, supra note 311,
at 6-5, 6-5 n.12.
[FN461]. See
supra notes 325-50 and accompanying text.
[FN462].
U.S. ICJ Memorandum/GA App., supra note 315, at 416; Law of Land Warfare, supra
note 311, at 5.
[FN463]. ICJ
Hearing, Nov. 15, 1995, supra note 351, at 68 (emphasis added).
[FN464]. Naval/Marine
Commander's Handbook, supra note 311, at 6-5, 6-5 n.12; Moxley, supra note 7,
at 43-44, 61-62, 65.
[FN465].
U.S. ICJ Memorandum/GA App., supra note 315, at 415-16; Law of Land Warfare,
supra note 311, at 4.
[FN466]. Id.
at 416.
[FN467]. The
A.F. Manual on Int'l Law, supra note 311, at 5-7 (emphasis added).
[FN468]. Id.
(citing Arthur Rovine, Contemporary Practice of the United States Relating to
International Law, 67 Am. J. Int'l L. 118, 122-25 (1973) (quoting DOD, General
Counsel, Letter to the Effect that Resolution 2444 is "declaratory of
existing customary international law")).
[FN469].
Navy JAG Trident I, supra note 271, at 7-8.
[FN470]. See
Moxley, supra note 7, at 363-65 nn.43-45, 387-88, nn.2-3 and accompanying text;
see also id. at 353-66, 387-96; St. Thomas Aquinas, Summa Theologiae, I-II,
Quest. 64, art. 7; Stephen R. Latham, Aquinas and Morphine: Notes on Double
Effect at the End of Life, 1 DePaul J. Health Care L. 625, 633 (1997); D.W.
Bowett, Self-Defence in Int'l Law 10 (1958).
[FN471]. See
Moxley, supra note 7, at 388-89 nn.3-5 and accompanying text; see also Austin
Fagothey, S.J., Right and Reason, Ethics in Theory and Practice 107-08 (1963);
Michael Walzer, Just and Unjust Wars, A Moral Argument with Historical
Illustrations 129, 153 (1968) (citing Dougherty, General Ethics: An
Introduction to the Basic Principles of the Moral Life According to St. Thomas
Aquinas 65-66 (1959)); John C. Ford, S.J., The Morality of Obliteration
Bombing, in War and Morality (Richard Wasserstrom ed., 1970).
[FN472]. See
Doctrine for Joint Nuclear Operations, supra note 355, at I-1, I-2; Michael
Walzer, supra note 471, at 153, 273-83 (1968); Fagothey, supra note 471, at 113
n.1.
[FN473].
Doctrine for Joint Nuclear Operations, supra note 355, at I-1 (emphasis
omitted).
[FN474]. Id.
at I-2.
[FN475]. See
Moxley, supra note 7, at 353-67; see also Model Penal Code sec. 3.02, cmt. 3,
at 14-15 (A.L.I. 1985).
[FN476].
Navy JAG Tomahawk, supra note 397, at 7.
[FN477]. ICJ
Hearing, Nov. 15, 1995, supra note 351, at 75.
See A.F. Manual on Int'l Law, supra note 311, at 10-3, 10-6 n.12
(quoting United States v. Ohlendorf, 4 Trials of War Criminals Before the
Nuremberg Military Tribunals 493 (1950)); A.F. Commander's Handbook, supra note
311, at 8-1; Law of Land Warfare, supra note 311, at 177; Col. Charles J.
Dunlap, Jr., USAF, Taming Shiva: Applying International Law to Nuclear
Operations, 42 A.F. L. Rev. 157 (1997).
Ironically,
to an extent MAD is still U.S. policy.
The U.S. position is that it is entitled to target civilians in
circumstances when reprisals are appropriate. Col. Charles J. Dunlap, Jr.
(USAF), Judge Advocate, U.S. Strategic Command, Offutt Air Force Base,
Nebraska, in a 1997 article, stated:
Legal advisors should likewise be aware that
while the U.S. does not target populations per se, it reserves the right to do
so under the limited circumstances of belligerent reprisal. The U.S. (along with other declared nuclear
powers) insists that Protocol I to the Geneva Conventions does not apply to
nuclear weapons. Hence, prohibitions
contained in Protocol I forbidding reprisals against civilians are not, in the
U.S. view, applicable to nuclear operations.
Id. at
163.
Secretary of
Defense Perry described MAD:
I would
liken MAD to two men holding revolvers and standing about 10 yards away and
pointing their revolvers at each others' head, and the revolvers are loaded,
cocked, their fingers are on the trigger, and then to make matters worse
they're shouting insults at each other.
And that characterized MAD, which was what we had to control this arms
race--this nuclear terror during all the periods of the Cold War.
Secretary of
Defense William Perry & General John Shalikashvili, Chairman, Joint Chiefs
of Staff, Defense Department Briefing, Compass Newswire, Sept. 22, 1994.
[FN478]. See
U.S. ICJ Memorandum/GA App., supra note 315, at 30-31; see also ICJ Hearing, Nov. 15, 1995, supra
note 351, at 75; A.F. Manual on Int'l Law, supra note 311, at 10-3, 10-4,
10-5; Nav./Marine Commander's Handbook,
supra note 311, at 6-17, 6-18 (including a similar list).
[FN479]. See
supra note 350 and accompanying text.
[FN480].
A.F. Manual on Int'l Law, supra note 311, at 10-3, 10-6 n.12 (quoting United
States v. Ohlendorf, 4 Trials of War Criminals Before the Nuremberg Military
Tribunals 493 (1950)); see also A.F. Commander's Handbook, supra note 311, at
8-1, 8-4(b); Law of Land Warfare, supra note 311, at 177.
[FN481]. Id.
at 10-5.
[FN482]. See
Moxley, supra note 7, at 93-94 n.274-77, 150-51 n.127-29, 228- 29, nn.246-49
and accompanying text.
[FN483].
See, e.g., Cashing in on China Reform, July 31, 2003, available at
http://www.business-times.asia1.com.sg/story/0,4567,89466,00.html (last visited
Apr. 16, 2004); Bonnie S. Glaser, U.S.-China Relations: The Best Since 1972 or
the Best Ever, Comp. Connections Pac. F., CSIS (Oct. 2003); Cuba's Agriculture:
Collapse and Economic Reform, Economic Research Service, USDA, Oct. 1998, at
26, available at http://
www.ers.usda.gov/publications/agoutlook/oct1998/ao255h.pdf. (last visited Apr.
16, 2004).
[FN484]. See
supra note 70 and accompanying text.
[FN485]. See
supra note 112 and accompanying text.
[FN486]. See
Leonard Weiss, Nuclear Weapon States and the Grand Bargain, Arms Control Today,
December 2003, available at http:// www.armscontrol.org/act/2003_12/weiss.asp
(last visited Apr. 16, 2004); Transcript of Nuclear Scientist Abdul Qudeer Khan
on Pakistan TV, available at
http://www.fas.org/nuke/guide/pakistan/nuke/aqkhan020404.html (last visited
Apr. 16, 2004).
[FN487]. See
Josh Meyer, Saudi Government Promised Aid to 9/11 Hijackers, Sources Say, L.A.
Times, Aug. 2, 2003, at A1; see also David Johnston & James Risen, Threats
and Response: Tracking Terrorism: 9/11 Report Says Saudi Arabia Links Went
Unexamined, N.Y. Times, Nov. 23, 2002,
at A1.
[FN488]. See
supra notes 158-64 and accompanying text.
[FN489]. For
example, U.S. military spending steadily decreased from 1992 through 1999 to a
low-point of U.S.$298.4 billion (in 2002 dollars) in 1999. See Information
Compiled from the Center for Defense Information, available at www.cdi.org
(last visited Apr. 16, 2004). Projected
spending for 2004 is U.S. $379.9 billion, not including the recently approved
U.S.$87 billion to fund the Iraq war. See id.
This puts military spending back to its actual 1992 level of $379.5
billion, assuming these are actual, not time or inflation adjusted numbers. See
id.; see also Carl Conetta and Charles Knight, Post-Cold War US Military
Expenditure in the Context of World Spending Trends Project on Defense
Alternatives, Briefing Memo Jan. 10, 1997, available at http://
www.comw.org/pda/bmemo10.htm (last visited Apr. 16, 2004) (reporting that from
1986 to 1994 U.S. military expenditure decreased 21%); U.S. Military Spending,
1945- 1996, Center for Defense Information, http://www.cdi.org (last visited
Apr. 16, 2004).
[FN490].
See, e.g., Who's The Enemy Now?, Center for Defense Information, American
Defense Monitor, Sept. 5, 1993, available at http:// www.cdi.org/adm/651/ (last
visited Apr. 23, 2004).
[FN491].
Dwight D. Eisenhower, Military-Industrial Complex Speech, 1961, Public Papers
of the Presidents, 1960, at 1035-40.
[FN492]. See
supra notes 156-63 and accompanying text.
[FN493]. See
supra notes 157-60 and accompanying text.
[FN494]. See
supra notes 157-64 and accompanying text; Nerve Gas Used in Northern Iraq on
Kurds, Physicians for Human Rights, available at http://
www.phrusa.org/research/chemical_weapons/chemiraqgas2.html (last visited Apr.
16, 2004).
[FN495]. See
supra notes 165-67 and accompanying text.
[FN496]. See
supra notes 171-89 and accompanying text.
[FN497].
Moxley, supra note 7, at 174-84.
[FN498].
Nuclear Weapons Advisory Opinion, supra note 1, at P 42.
[FN499]. Id.
at P 39.
[FN500]. Id.
at P 78, 35 I.L.M. at 827 (emphasis added); but see Lord Advocate's Reference No. 1 of 2000 [Mar. 30, 2001], 2001 SCCR
296, 2001 SC 143, Misc 11/00 H.C.J. (Scot.), PP 86, 96 (The Scottish High Court
of Justiciary, in a case involving a challenge to the United Kingdom's policy
of nuclear deterrence, concluded that that State's policy of deterrence was not
specific enough to constitute a threat under international law); see also
Charles J. Moxley, Jr., The Unlawfulness of the United Kingdom's Policy of
Nuclear Deterrence, Juridical Review, Part 6, 2001; John Burroughs, The
(Il)legality of Threat or Use of Nuclear Weapons 32-37 (Lit Verlag, Munster
Germany 1997).
[FN501].
Nuclear Weapons Advisory Opinion, supra note 1, at 823, PP 47-48 (emphasis
added). The ICJ further stated in
Paragraph 67 of its opinion (35 I.L.M. at 826) that it did not intend to
pronounce upon the practice known as the "policy of deterrence." Id.
at P 67, 35 I.L.M. at 826.
[FN502]. ICJ
Hearing, Nov. 15, 1995, supra note 351, at 62-63.
[FN503]. See
Deller, supra note 123.
[FN504].
Chemical and Biological Weapons: Possession and Programs Past and Present,
available at http://cns.miis.edu/research/cbw/possess.htm (last visited Apr.
16, 2004). The Federation of American
Scientists list is more inclusive and includes countries capable of producing
chemical or biological weapons. There
are twenty-six countries capable of acquiring chemical weapons and twenty
capable of acquiring biological weapons. States Possessing, Pursuing, or
Capable of Acquiring Weapons of Mass Destruction, at http://
www.fas.org/irp/threat/wmd_state.htm (last visited Apr. 16, 2004).
[FN505]. See
Deller, supra note 123.
[FN506]. See
Federation of American Scientists, supra note 128 and accompanying text.
[FN507].
See, e.g., U.S. Congress Office of Technology Assessment, Proliferation of
Weapons of Mass Destruction: Assessing the Risks, OTA-ISC-559, at 3, 8, 54, 100
(Washington, DC, Aug. 1993) [hereinafter Proliferation of Weapons of Mass
Destruction] (report prepared at request of Congress "to assist Congress
in its efforts to strengthen and broaden U.S. policies to control the
proliferation of weapons of mass destruction"); Daryn Kagan & Eileen
O'Connor, President Clinton to Announce Plan to Counter Biological Weapons
Threat, CNN Morning News, May 22, 1998 (statement of John Boatman of Jane's
Information Group); Chemical & Biological Weapons Resource Page, Center for
Non-Proliferation Studies, Monterey Institute for International Studies,
available at http://cns.miis.edu/research/cbw/index.htm (last visited Apr. 16,
2004); Jonathan B. Tucker, Biosecurity: Limiting Terrorist Access to Deadly
Pathogens, Peaceworks 52, United States Institute for Peace, available at
http:// www.usip.org/pubs/peaceworks/pwks52.html (last visited Apr. 16, 2004);
Wayne Turnbull and Praveen Abhayaratne, 2002 WMD Terrorism Chronology: Incidents
Involving Sub-National Actors and Chemical, Biological, Radiological, and
Nuclear Materials, Center for Nonproliferation Studies 2003, available at
http://cns.miis.edu/pubs/reports/pdfs/cbrn2k2.pdf (last visited Apr. 16, 2004).
[FN508]. See
Kagan & O'Connor, supra note 507.
The delivery through aerosol of "[l]ess than ten pounds of
anthrax" could have the effect of destroying "a city the size of
Albuquerque." Anne Boyle,
Biological Weapons Still Pose a Serious Threat, Sandia Labs Researcher Says,
Albuquerque Trib., Aug. 7, 1997, at A6.
[FN509]. See
Gertz, supra note 198. "Highly
advanced communications are putting such weapons know-how in the hands of
anyone with a computer and modem. 'The
ingredients for sarin and other chemical weapons are easily accessible over the
Internet,' said Sen. Sam Nunn (D. Ga.), the senior Democrat on the Senate Armed
Services Committee, 'as is information about biological weapons and even
instructions on how to make a nuclear device."' Id.
[FN510]. See
Proliferation of Weapons of Mass Destruction, supra note 507, at 6. "Virtually all the equipment underlying
production of biological and toxin agents has civil applications and has become
widely available as fermentation technology, and the pharmaceutical and biotechnology
industries more generally, have spread worldwide." Id.
[FN511]. See
id. at 1. "Barring a shortcut,
such as the direct acquisition of nuclear materials usable in weapons, the
infrastructure required to produce nuclear weapons is considerably more
difficult and expensive than for either biological or chemical weapons. Mass production of lethal chemicals requires
a greater investment than that of biological weapons, but is not nearly as
expensive or challenging as production of nuclear materials." Id.
Similarly,
"A nuclear bomb in the hands of a deranged person has long been the stuff
of nightmares, but the materials needed to make such a device are hard to
obtain and exceedingly tricky to assemble.
Biological weapons are not nearly so difficult to manufacture."
Taylor, supra note 435.
[FN512]. It
is often said that biological and chemical weapons are a poor man's nuclear
weapons, because they are appreciably cheaper, more accessible and
substantially easier to deliver. See
Boyle, supra note 508; see also Thomas Graham, Conventional Response; Nuclear
Stance Could Worsen Chem-Bio Threat, Defense News, Feb. 23, 1998/Mar. 1, 1998,
at 31.
[FN513]. See
David Rohde, Standoff With Iraq: The Inspections, N.Y. Times, Feb. 12, 1998, at
A6. ("In a 1996 report on biological weapons, the Center for Strategic and
Int'l Studies, a public policy research institution in Washington, D.C., warned
that it was easy for a would-be terrorist to assemble biological weapons--using
commercial equipment with a capacity of 130 gallons"). Chemical weapons generally require somewhat
larger production facilities that would be visible from the air. See Boyle,
supra note 508.
[FN514]. See
Boyle, supra note 508 ("Anybody who has taken Microbiology 202 can make a biological
weapon .... Sophisticated lab equipment and exotic materials are not
needed. You can brew up a biological
weapon in a small brewer--like one you'd use for homemade beer").
[FN515]. See
Gertz, supra note 198. A Nation or
group gains tremendous flexibility if it chooses a biological weapons program:
"Unlike chemical weapons programs, which require the use of large scale
industrial equipment and possession of precursor chemicals, BW weapons do not
need to be stockpiled. Nations can keep small quantities or even sample
cultures on hand in freeze-dried form.
Cultures can be mass produced at any time." Id. With biological weapons, "the threat
resists taming because the weapons are easy to make and their production is
hard for international monitors to detect." Boyle, supra note 508.
[FN516].
Moxley, supra note 7, at 630-31.
[FN517]. See
Gertz, supra note 198. "Samples of
deadly viruses needed for starting BW programs can be obtained on the
international black market. U.S.
counterproliferation officials are especially concerned that BW starter
cultures could be smuggled out of the territory of the old Soviet Union by
scientists looking to make money." Id.
"The number of [N]ations capable of developing and possessing WMD
is steadily increasing. Developing
nations are receiving these weapons or means to develop them through technology
transfer, overt or covert direct transfer, or support to belligerent groups or
governments." Joint Doctrine for Nuclear, Biological and Chemical (NBC)
Defense, supra note 512, at I-1.
[FN518].
"Crude dissemination of biological agents in an aerosol cloud can be
performed with commercially available equipment, such as an agricultural
sprayer mounted on a truck, ship, or airplane." Proliferation of Weapons of Mass Destruction, supra note 507, at
6.
For at least
the next decade, few if any [States actively working to develop weapons of mass
destruction] will be able to deliver such weapons more than a thousand
kilometers or so in a reliable and timely manner ... Despite there current
limitations in long-range military delivery systems, however, proliferate
states--at least in principle--can threaten any country on earth using
unconventional means (e.g., covert or disguised delivery systems such as a ship
or truck).
Id. at
4. A chemical or biological weapon can
be delivered by "even a suitcase." Id. at 3. "[A] given quantity of certain lethal
microorganisms would probably kill even more people if spread effectively by
human agents than if by a missile." Id. at 3.
In addition,
the proliferation of ballistic missiles, such as the Soviet-made SCUD systems,
has increased the risks of the potential use of chemical or biological weapons.
See Joint Doctrine for Nuclear, Biological, and Chemical (NBC) Defense, supra
note 512, at I-3. "Ballistic
missiles offer potential proliferators several advantages in delivering NBC
weapons ... The potential for coercion is, perhaps, the long-range ballistic
missile's greatest value to proliferators ... [to] threaten distant cities and
... distract and tie up military resources." 1997 Counterproliferation
Program Review Committee Report to Congress 3-8 (1997).
[FN519]. As
a "universally agreed illustration of ... an indiscriminate weapon,"
The A.F. Manual on Int'l Law cites biological weapons, noting that the
uncontrollable effects from such weapons "may include injury to the
civilian population of other states as well as injury to an enemy's civilian
population." See id. at 6-3. The
manual further states that the "wholly indiscriminate and uncontrollable
nature of biological weapons has resulted in the condemnation of biological
weapons by the international community, and the practice of states in
refraining from their use in warfare has confirmed this rule." Id.
[FN520]. See
NSC-68 in American Defense Policy 288 (Schuyler Forester & Edward N. Wright
eds., 1990) [hereinafter NSC-68]. Per
NSC-68, the classic American policy statement on the necessity of countering
Soviet conventional superiority in Europe with American nuclear superiority
approved by President Truman in 1950, the United States would not renounce the
first-use of nuclear weapons given its "present situation of relative
unpreparedness in conventional weapons." Id.
See also
Lawrence Freedman, The Evolution of Nuclear Strategy 71 (1989). Under
NSC-68,
[u]ntil
conventional forces had been built up, the United States had no choice but to
rely on its nuclear arsenal, and extend its breathing space by maintaining, for
as long as possible, a clear superiority in nuclear capabilities over the
Soviet Union. The imbalance in
conventional capabilities meant that the United States was not even able to
hold back nuclear weapons as a last resort.
Id. Cf.
John Lewis Gaddis & Paul Nitze, NSC 68 and the Soviet Threat
Reconsidered, 4 Int'l Security, No. 4, Spring 1980, at 164-76; Secretary of
State John Foster Dulles, Massive Retaliation, Address to the Council on
Foreign Relations, Jan. 12, 1954 (Dep't St. Bull., Jan. 25, 1954), in American
Defense Policy, supra, at 288, 294; William J. Perry, Secretary of Defense,
1995 Annual Report to the President and the Congress 84-85 (U.S. Government
Printing Office); Henry Kissinger, White House Years 218 (1979); Testimony of
Adm. Noel Gayler, U.S. Navy (Retired), Former Commander in Chief, U.S. Forces
in the Pacific, Former Director, National Security Agency, in Hearings on the
Role of Arms Control in U.S. Defense Policy, before the Committee on Foreign
Affairs, House of Representatives, Ninety-Eighth Congress, 2d Sess., at 126
(June 20, 21, 26, July 25, 1984); NSC-68, supra, at 288. See also Moxley, supra
note 7, 400 nn.14-15, 474-77 nn. 29-35, and accompanying text.
Cf. Gaddis
& Nitze, supra, at 164-76.
Secretary of
State John Foster Dulles, Massive Retaliation (Address to the Council on
Foreign Relations, 12 Jan. 1954 (Dep't St. Bull., 25 Jan. 1954), in American
Defense Policy, supra, at 294.
[FN521].
Moxley, supra note 7, at 485, 493-94 nn.48-52 and accompanying text.
[FN522]. See
supra note 69 and accompanying text. North Korea's factual assumption that
nuclear weapons are cheaper than conventional weapons will likely turn out to
be mistaken, given the United States' experience as to the indirect costs of
nuclear weapons, including the ongoing costs of storing and disposing of
associated toxic and radioactive waste and the costs of dismantling nuclear
weapons systems and disposing of surplus nuclear materials. See also Moxley, supra note 7, at 548 n.44
and accompanying text; Stephen I. Schwartz, Introduction, in Atomic Audit 4
(Stephen I. Schwartz ed., 1998).
[FN523]. See
id. (quoting S. Conc. Res. 46, 82 Cong. 1 sess., introduced September 18, 1951,
and referred to the Joint Committee on Atomic Energy). Resolution 46 stated in
its preamble: "The cost of military fire power based on atomic bombs is
hundreds of time cheaper, dollar for dollar, than conventional explosives.' Id.
at 4-5; see also id. at 2 n.3.
[FN524].
See, e.g., John F. Murphy, Legal and Ethical Dimensions of Collateral Damage,
in 78 Int'l Law Studies 232 (Andru E. Wall ed., 2002); Lieutenant Commander
Stuart Belt, Missiles Over Kosovo: Emergence, Lex Lata, of a Customary Norm
Requiring the Use of Precision Munitions in Urban Areas, 47 Naval L. Rev. 115,
130 (2000); Danielle L. Infeld, Precision-Guided Munitions Demonstrated Their
Pinpoint Accuracy in Desert Storm: But Is A Country Obligated to Use Precison
Technology to Minimize Collateral Civilian Injury and Damage?, 26 Geo. Wash. J.
Int'l L. & Econ. 109, 188 n.74 (1992); Moxley, supra note 7 at 367-74.
[FN525]. The
A.F. Commander's Handbook states that, in making the proportionality
determination, the commander must decide, "in the light of all the facts
known ... whether to adopt any alternative method of attack to further reduce
civilian casualties and damage." A.F. Commander's Handbook, supra note
311, at 3-3
The A.F.
Manual on Int'l Law states that application of the proportionality test
requires consideration "whether some alternative form of attack would
lessen collateral damage and casualties." The A.F. Manual on Int'l Law,
supra note 311, at 5-9.
The manual
adds that "[t]hose who plan or decide upon an attack" must
"[t]ake all feasible precautions in the choice of means and methods of
attack with a view to avoiding, and in any event to minimizing, incidental loss
of civilian life, injury to civilians, and damage to civilian objects."
Id. at 5-9.
Thus, the
determination of proportionality with respect to the use of nuclear weapons
includes a comparison of the probable results of using conventional as opposed
to nuclear weapons. See Moxley, supra
note 7, at 339-46, 141-42, 472- 77 nn.27-36 and accompanying text. See also 1996 Doctrine for Joint Theater
Nuclear Operations, supra note 353, at vii-viii, II-7.
The rules of
discrimination and necessity similarly require that nuclear weapons could not
be used if conventional weapons would suffice.
See Moxley, supra note 7, at 57, 42 n.87, 51-53 nn.108-09, 57 n.129, 60
n.140, and accompanying text.
[FN526]. See
Moxley, supra note 7, at 53 n.112, 54-55 nn.116-20, 56 n.126, 60 n.138, 62
n.142, 95 n.283 and accompanying text.
[FN527]. See
id. at 49 n.104, 53 n.112, 54-55 nn.114-120, 61 n.139 and accompanying
text.
[FN528]. See
id. at 57, 42-43 nn.87-90, 668 n.56, 695-98 nn.157-69, 737 n.30, 738 n.34,
769-70 nn.173-79 and accompanying text.
[FN529]. See
Gary W. Lane, New Conventional Weapons, Reducing Reliance on a Nuclear Response
Toward Aggressors (2002); Moxley, supra note 7, at 53 nn.110- 12, 56 n.128,
633-50. See also id. at 400-01
nn.15-17, 633 n.1, 637 nn.13- 14, 641-45 nn.37-52; National Defense Panel,
Transforming Defense: National Security in the 21st Century 51 (Dec. 1997);
David Learmount, Smart Bombs in Demand, Flight Int'l, June 9, 1999; William J.
Perry, Desert Storm and Deterrence, 70 Foreign Aff., no. 4, Fall 1991, at
66.
[FN530].
This year the U.S. Defense Department has requested $401.7 billion for its
fiscal year 2005 budget. See Defense
Department Announces 2005 Budget Request, available at
http://www.defenselink.mil/releases/2004/nr20040123- 0263.html (last visited
Apr. 16, 2004). This is compared to
North Korea, whose GDP for 2002 is 22.26 billion. See World Factbook 2003: North Korea, supra note 201.
[FN531]. See
78 Legal and Ethical Lessons of NATO's Kosovo Campaign, Int'l Law Studies 243,
302, 303 (Andru E. Wall ed., 2002); Michael N. Schmitt, The Principle of
Discrimination in 21st Century Warfare, 2 Yale Hum. Rts. & Dev. L.J. 143, 155,
169 (1999); Commentary on the Additional Protocols of June 8, 1977 to the
Geneva Conventions of Aug. 12, 1949, at 384 (Yves Sandoz et al. eds.,
1987).
[FN532]. See
Department of Defense, Nuclear Posture Review Report, available at
http://www.nuclearweaponslaw.com/2002NPR/2002NPR_Article.html (Jan. 8, 2000)
(available with accompanying briefing speech and slides). See also Charles J. Moxley Jr., 2002 Nuclear
Posture Review: Strategic and Legal Ramifications, available at http://www.nuclearweaponslaw.com
(Apr. 16, 2002).