The Confrontation between North Korea and the U.S.A. and the principle of collective security…
By Otto Jaeckel*
Is the U.S. able or not to hack into the Missile Program of North Korea?
This is subject of a discussion in an article by Jeffrey Lewis in Foreign Policy from April 19, 2017: “Is the United States really blowing Up North Korea’s Missiles?” He writes that there is no evidence to support the fantasy that Kim Jong Un’s rockets are falling prey to a super-secret U.S. Cyber-Program.
He says David Sanger from the New York Times, who believes in such a program cannot be right. His argument: Of the 66 missiles that North Korea launched during and after 2014, 51 have succeeded. If hacking plays any role, he says, it would be defeating only a trivial number of missiles.
His conclusion: The idea that hacking can prevent North Korea’s missiles from working allows us to avoid coming to terms with the reality that our policies are failing.
I think this conclusion can totally be agreed upon. And I should like to add, this policy is incorrect in all parts.
Firstly, it is based on the presumption, that Kim Jong Un is really going to attack the U.S. with Nuclear weapons. And secondly it is led by the conclusion that an attack by North Korea could only be avoided by cyberattacks or even a so called preemptive strike with nuclear weapons.
Those who are promoting an attack with nuclear weapons on North Korea right now, do they really rely on our short memories?
Didn’t we have almost the same discussion right before the third war in Iraq in 2003? A war, which still has not come to an end.
Since then we know that a preemptive strike is not justified by the right to self- defense in Art 51 of the UN Charter. There it says “if an armed attack occurs” This means, that an armed attack must already have happened or has started in a way that only the use of military force is able to avoid it.
To show propaganda videos of the launching of missiles against US-American targets is certainly an illegal threat to use nuclear weapons, but it cannot be confused with a real attack itself. A military attack against North Korea would thus be a breach of the Principle of Nonviolence according to Article 2 of the UN Charter.
We have to make one thing crystal clear: The right to self-defense does not include the right to the threat to use or even to the use of nuclear weapons. This is what the International Court of Justice of the United Nations has stated in its Advisory Opinion of 8 July 1996, which the Court handed down on the request made by the General Assembly of the United Nations on the question concerning the Legality of the Threat or Use of Nuclear Weapons.
Although there does not yet exist a treaty which prohibits nuclear weapons like the treaties prohibiting chemical and biological weapons of mass destruction, the court stated that the use and thus already the threat to use nuclear weapons would be a breach of all the main principles of International Humanitarian Law.
The court deduced this from regulations like the St. Petersburg Declaration of 1868, which was the first convention to introduce restrictions on the means and methods of combat. It codified the customary principle that the use of weapons which provoke unnecessary suffering is prohibited. This principle is still valid today. The Court deduced it furthermore from the principle, that the effect of weapons must be restricted to combatants, that any attack on civilians is unlawful, that weapons may not have effects on people living in neighboring countries who are not party to the armed conflict, from the principle that weapons may not cause damages to the environment and
from the law which requires that natural resources have to be safeguarded for future generations.
We know of no nuclear weapon which complies with these legal requirements.
To use nuclear weapons against North Korea would not only be a mass murder of North Korean civilians. It would also put the civilians of every country that shares a border with North Korea – South Korea, China, Russia and even Japan into danger.
In addition, we know from the study of IPPNW on an armed conflict with nuclear weapons, that such a conflict – even if it could be contained locally – could lead to an atomic winter with horrible effects for all mankind and every living being on earth.
As a result of all this, the conflict can only be resolved by measures of de-escalation.
We know that every successful strategy to resolve a conflict begins with the understanding of the position and interests of the adversary.
If we analyze the conflict in a proper way, we may find that the Korean leader may have some reasons to feel threatened. Perhaps he has this fear in his genes and it is grounded on historical experience.
I’d like to name only a few of these experiences:
The fight of the Korean communists against colonialism had always been a life-and-death-struggle. After the Chinese communists and the Kuomintang had conquered Shanghai in March and April 1927, the Leader of the Kuomintang Chiang Kai-shek started to arrest and kill his former allies, Chinese and Korean communists by the thousands. They were shot or burned alive in the ovens of locomotives. André Malreaux, the famous French writer, later the French Minister for Cultural affairs under De Gaulle has described the events in his novel “La condition humaine”.
In the weeks before the Korean War the South Korean Dictator Syngman Rhee had started to kill communists and poor peasants who had been held for being communists. Over one hundred thousand were
shot and buried in ditches. This may have provoked the North Korean attack on South Korea in June 1950 which led to 940.000 killed soldiers and over 3 million dead civilians.
A unification of the two parts of Korea today 70 years later is only imaginable in a peaceful way. The more The U.S. tries to isolate North Korea from their historical ally China, the more they openly discuss plans to send a kill team of the Special Forces to kill Kim Jong Un like they killed Bin Laden, the more reason the north Korean Dictator has to feel threatened. Kim Jong Un has seen how Saddam Hussein and Ghaddafi have been toppled. Security can only be reached in a system of collective and common security together with the adversaries and not against them. This is the most important experience of how Europe has overcome the cold war. What we need urgently is confidence building measures. What we need is deescalating measures. All military maneuvers have to be stopped. Talks have to begin. Kim Jong Un reigns North Korea like a King. He is a dictator, but he is not insane. He has attended a boarding school in Switzerland. He has started reforms in the North Korean Economy. Security on the Korean peninsula can only be achieved together with him not against him.
In his lectures on international law Immanuel Kant has pointed out that war cannot be waged to subdue or even extinguish the adversary because when the war has come to an end it must always be possible to renew the legal relationship between the adversaries and negotiate treaties again.
Nuclear weapons are exactly the contrary of this concept. Mankind has abolished human sacrifices, mankind has abolished slavery – now is the time to abolish nuclear weapons!
*Otto Jaeckel (www. jaeckel-rechtsanwalt.de)
Chairperson of the International Association of Lawyers against Nuclear Arms (IALANA) Germany (www.ialana.de)
Presentation held on 2 May 2017 on occasion of the first session of the 2017 Preparatory Committee for the 2020 Nuclear Non-Proliferation Treaty Revue Conference at the Vienna International Center
