If U.S. attacks North Korea first, could that be self-defense?
President Donald Trump’s apocalyptic admonishment to North Korea over its nuclear threats to annihilate the United States suggested that he may be closer than ever to ordering an attack — without waiting for Kim Jong Un, the North Korean leader, to strike first.
Trump’s supporters have said that such a strike, should there be one, would be legally justified as an act of self-defense by the United States against a dangerous and irrational adversary. Others disagree, and many scholars of international law say the legal issues surrounding attacks in self-defense are complicated and subject to interpretation.
Here are some questions and answers on what can be considered legitimate self-defense under international law:
How can a country even claim self-defense when attacking another country that has not attacked it?
The self-defense argument for such an attack is generally not recognized as valid. But there are situations in which a first strike can be interpreted as legally justified.
Michael Schmitt, a professor at the U.S. Naval War College and an affiliate at the Harvard Law School Program on International Law and Armed Conflict, said three basic requirements must be met: The other country must have the ability to attack; the other country’s behavior must show that an attack is imminent; and there are no other ways to forestall it.
North Korea’s military power appears to have satisfied the first requirement. But under the second requirement, “we have to determine whether the statements by Kim are bluster or he actually intends to carry them out,” Schmitt said. Under the third requirement, he said, “you can only act in self-defense when if you don’t act, it’s going to be too late — there are no other options.”
Have those requirements been met yet?
While North Korea may have an ability to attack the United States, there is widespread skepticism that an attack is imminent. And many officials, including some of Trump’s senior aides, have said other options have not been exhausted.
“I think that the answer to the question is fairly unequivocally ‘no,’ ” said Kevin Jon Heller, a law professor at the University of London. “There’s no right of selfdefense against a nonimminent threat.”
If the legal conditions for a first strike were met, would the destruction of North Korea be legally justified?
Legal experts said an attack of self-defense in such circumstances must be “proportional” — meaning it is designed only to stop the threat. “It is not a carte blanche to destroy another country,” Schmitt said.
How do we know that Kim’s threat of attacking the U.S. is not an imminent threat?
We do not necessarily know. But North Korea has an established penchant for bombast and bluster, making threats without following through on them.
“Kim says all kinds of crazy things, with no history besides incendiary statements,” said Anthony Clark Arend, a professor of government and foreign service at Georgetown University.
Is there anything in the United Nations Charter that permits one state to attack another before it is attacked?
That is a matter of debate. Article 2 of the charter prohibits states from using or threatening force against one another, while Article 51 does not prohibit the “inherent right of individual or collective self-defense if an armed attack occurs.” But Article 51 has been interpreted in different ways. According to the restrictive interpretation, an attack must happen before the attacked state can use force against the attacker. Less restrictive interpretations argue that a state threatened by attack does not need to wait to legally make a pre-attack strike.