The Unlawfulness of a Bloody Nose Strike on North Korea

96 International Law Studies __ (2020)

Amsterdam Law School Research Paper No. 2020-04

Amsterdam Center for International Law No. 2020-03

19 Pages Posted: 17 Jan 2020 Last revised: 20 Jan 2020

See all articles by Kevin Jon Heller

Kevin Jon Heller

University of Amsterdam; Australian National University

Date Written: January 16, 2020

Abstract

In early 2018, media began to report that the United States was debating whether to “react to some nuclear or missile test with a targeted strike against a North Korean facility to bloody Pyongyang’s nose and illustrate the high price the regime could pay for its behaviour.” This article asks a simple question: would such a “bloody nose strike” (BNS) be consistent with international law’s rules on the use of force, the jus ad bellum?

Unfortunately, providing a coherent answer is complicated by the lack of clarity surrounding the U.S.’s planning. In particular, the government has not specified what kind of provocation it would consider sufficient to justify launching a BNS, has not identified precisely what a BNS would entail, and has not offered a legal theory for why a BNS would be permissible under international law. To some extent, therefore, this article is inherently speculative.

Because so much is unknown, the following legal analysis proceeds on two assumptions. The first is that the U.S. would attempt to justify a BNS either as the collective self-defense of Japan, its ally most directly threatened by North Korea’s nuclear and missile tests, or on the basis of its own individual right of self-defense. The second is that a BNS would be a response to one of two North Korean provocations that have taken place over the past couple of years: a test of a nuclear weapons on North Korean territory, or the intentional launch of an unarmed ballistic missile into Japan’s territorial waters.

The article itself is divided into three sections. Section 2 asks whether either North Korean provocation would qualify as an “armed attack,” the necessary precondition of individual or collective self-defense. Section 3 analyzes what would be required for the U.S. to justify a BNS as the collective self-defense of Japan. And Section 4 discusses whether the U.S. could justify a BNS as its own individual self-defense.

Keywords: Jus ad bellum, use of force, armed attack, self-defence, imminence, UN Charter, North Korea, United States, reprisals

JEL Classification: K33

Suggested Citation

Heller, Kevin Jon, The Unlawfulness of a Bloody Nose Strike on North Korea (January 16, 2020). 96 International Law Studies __ (2020); Amsterdam Law School Research Paper No. 2020-04; Amsterdam Center for International Law No. 2020-03. Available at SSRN: https://ssrn.com/abstract=3520642

Kevin Jon Heller (Contact Author)

University of Amsterdam ( email )

Amsterdam, 1018 WB
Netherlands

Australian National University ( email )

Canberra, Australian Capital Territory 2601
Australia

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