The Sword in the Mirror

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]

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.