North Korea on July 16 warned that it could resume testing inter-continental ballistic missiles (ICBM) if the United States and South Korea proceeded with planned joint military exercises. Ignoring the North’s warning risks throwing away what has in reality been a great deal for America.
Holding or suspending the exercises only represents a small, temporary gain or loss for Washington and Seoul. By contrast, allowing ICBM tests represents a permanent increase in bargaining power for Pyongyang, insofar as it can then pose a greater threat to U.S. national security.
The North demonstrated in 2017 its ICBMs now had the range to reach any city in America: not just Seattle or Los Angeles, but also New York or Washington, D.C.
What it has yet to demonstrate is that it can do so reliably. It still needs to test re-entry heat shields to ensure its missiles and their nuclear payload don’t burn up as they reenter the atmosphere.
Meanwhile, the declared purpose of the joint exercises is to maximize the ability of the U.S. and South Korean forces to deter a North Korean attack, by honing their readiness to fight in concert.
But what is not clear is how much added value these joint exercises really bring to U.S. and allied security. Is the North not already sufficiently deterred by the strength of the South’s armed forces and the American alliance commitments and nuclear umbrella?
After all, the South’s military budget is among the top ten in the world and is larger than the North’s estimated GNI.
These tests suggested that North Korea had nuclear-capable missiles that could pierce through the South’s missile defense systems. If it wanted to protest more strongly, the most likely choice would be a submarine-launched ballistic missile or an ICBM.
The suggestion to suspend the exercises nevertheless tends to meet with scandalized protests in Washington. Skeptics question why the United States should stop an action that is fully within the purview of a country’s right to self-defense to get North Korea to stop one that is banned by Security Council resolutions.
That it has come down to this is in large part a consequence of the series of U.S. hardline policy choices on the content of the exercises, the continuation of a state of war, and the informality of agreements with North Korea.
These choices are all defensible individually, but taken together they make it nearly impossible to get past the issue of exercises.
THE PREEMPTIVE STRIKE PROBLEM
While the United States and the South have systematically insisted that their exercises are defensive in nature, that claim is not verifiable because the operations plans are classified.
In fact, the little evidence available suggests that recent plans included preemptive striking, such as so-called “decapitation strikes” aimed at killing North Korean leader Kim Jong Un. Since preemption consists of countering an imminent attack by striking first, it is actually a concept that blurs the line between the offensive and the defensive.
Preemption is particularly controversial in international law because of the difficulty of defining what is “imminent” enough to justify lawful self-defense. It is perhaps one of the oldest tricks in the book of war to abusively stretch the concept of imminence to justify what is in reality an offensive first strike.
Recent plans included preemptive striking, such as so-called “decapitation strikes”
Pyongyang is not unduly paranoid in this case: John Bolton was after all hired as National Security Adviser right after he argued that such a strike would be justified in preventing the North from perfecting its delivery of nuclear weapons.
(Note that this is actually an abusive interpretation. If the possession of nuclear weapon delivery vehicles legally justified preemptive strikes, any state could attack any of the current nuclear weapons states, including the United States.)
The precedent of the American invasion of Iraq certainly also factors in North Korean calculations. The Bush administration was famously supportive of preemption and invaded on the basis of claims that turned out to be false when the dust settled.
The relatively-limited media and diplomatic influence of North Korea means that it cannot effectively counter an American narrative of preemption in the court of world opinion. This makes it literally a life-or-death issue for Kim to stop the exercises.
THE STATE OF WAR PROBLEM
The exercises would be much less of a problem if Pyongyang was assured that Washington and Seoul do not harbor hostile intentions, and it is the continuing state of war on the Korean peninsula that makes both sides expect the worst from each other.
Washington’s systematic refusal to accept North Korean peace offers leads Pyongyang to presume that any American military action has a hostile purpose. Refusing peace indirectly implies reserving the right to use force, throwing the most ominous light possible over the joint exercises.
The reasons for American opposition to a peace agreement have evolved over time. In the Cold War, the most common argument was that peace and U.S. disengagement would allow the North to take over the South just like in Vietnam.
This scenario nevertheless became increasingly unrealistic with the collapse of the Soviet Union and the growing power, prosperity, and stability of South Korea. It certainly cannot explain why the joint exercises would include preemptive and decapitation strikes.
Today, the most common argument is that peace would legitimize Pyongyang’s pursuit of nuclear weapons. That argument has no legal basis: concluding a peace agreement does not per se invalidate the Security Council resolutions prohibiting North Korea from developing these weapons.
Washington’s systematic refusal to accept North Korean peace offers leads Pyongyang to presume that any American military action has a hostile purpose
Nor does a state of peace imply that Washington must accept nuclear pursuits, as suggested by its policy regarding Iran.
The only interpretation of the legitimization argument that makes sense is that Washington wants to use the prospect of a peace agreement as a carrot or incentive for Pyongyang to give up its nuclear program.
It is legally problematic to put it in those terms, though. Using peace as a bargaining chip while threatening preemptive strikes is hardly reconcilable with the UN Charter obligation of resolving disputes peacefully and in good faith, and that of refraining from the threat or use of force in international relations.
Ultimately, though, there is little that North Korea can do in practice to force the United States to conclude a peace agreement. The somewhat desperate approach Pyongyang seems to have chosen is to develop a nuclear weapons program that is threatening enough for Washington to conclude that it is better to make peace. In this context, holding joint exercises only signals that the United States is still preparing to use force.
THE TRUST BUILDING PROBLEM
Washington has tended to prefer lesser security guarantees that fall short of a peace agreement, such as the non-aggression pledge in the Joint Statement of September 19, 2005.
The problem here is that lesser guarantees tend to be less secure legally than a peace agreement and hence depend that much more on trust. This means they do not mix well with the trust-busting effect of holding joint exercises.
Peace agreements are widely seen as final and irreversible settlements. According to one of the most respected authorities on the subject, Lassa Oppenheim, “[Parties to a peace treaty] are legally bound not to go to war over matters settled by a previous treaty of peace.”
In other words, once two countries switch from a state of war into a state of peace, they cannot lawfully use force against each other unless they find a new justification satisfying the stringent requirements of the peacetime law on the use of force.
Under contemporary international law, they’d need to point to a new event justifying self-defense, or a new authorization by the Security Council to use force.
Lesser guarantees can come in many forms but since they do not clearly end the state of war, they do not clearly restore the applicability of the peacetime law on the use of force.
If the lesser guarantees are concluded as an informal agreement without the intent to be legally bound, they can be reneged at any time and so rely wholly on trust. If they are concluded as a treaty, then the conditions for reneging will be governed by the law of treaties.
What will weigh on North Korean minds here is, first, that Washington tends to insist on agreements that are as informal as possible with Pyongyang and, second, that it is so overwhelmingly powerful that it rarely if ever gets sanctioned for reneging on treaties – most recently the Iran deal.
North Korea has been extensively keeping score of what it considers hostile moves contrary to the spirit of the statement
In practice, then, a security guarantee that falls short of a peace agreement depends almost completely on North Korea trusting a country with which it has been at war for seven decades. One must ask: is it still proper then to call it a “guarantee”?
Take the Joint Statement that both sides agreed upon in a historic summit in Singapore on June 12, 2018. It was visibly intended as a trust-building measure, as it constructively called for “new U.S.–[North Korea] relations in accordance with the desire of the peoples of the two countries for peace and prosperity.”
Yet since it was concluded without apparent intent to be legally bound, it does not guarantee much or build much trust – on the contrary.
North Korea has been extensively keeping score of what it considers hostile moves contrary to the spirit of that statement. The list prominently features joint exercises. It extends, among other things, to U.S. testing of missile defense to counter North Korean ICBMs, the U.S. seizure of a North Korean trade ship, a U.S. Department of Defense designation of North Korea as a “rogue state,” and U.S. naming-and-shaming of North Korea at the UN for its human rights record.
By forcing the North Koreans to depend wholly on trust, Washington is making them hypersensitive to any perceived indicators of American hostility. This is how even scaled-down exercises are leading Pyongyang to threaten paradigm-shifting responses such as the resuming of ICBM tests.
THE WAY FORWARD
The development of the North Korean nuclear program and the associated ICBMs represents a clear and growing threat to U.S. national security. Suspending joint exercises to suspend ICBM testing is a small price to pay to buy time for a peaceful settlement.
Ultimately, Trump had the right intuition when he emerged out of the Singapore summit declaring that there would be no more joint exercises.
The same cannot be said of him subsequently allowing modified iterations to take place. Unless he takes North Korean concerns about the exercises more seriously, he should not expect much progress on the nuclear talks.
Suspending the exercises is of course only a temporary fix. Note that Pyongyang did offer a formal and permanent moratorium on nuclear and missile testing in February, alongside the verified dismantling of its main nuclear material production facility. For that, it wanted the lifting of a little under half the UN Security Council resolutions imposing sanctions on it.
We are not going to get anywhere if we stay stuck on something as basic as those exercises
Trump refused the February offer, leading Kim to declare that he would only wait until the end of the year for Trump to come up with an alternative deal with “fair clauses which conform to the interests of both sides.”
If that does not happen, he will likely resume ICBM testing, and by then it may well take a lot more than suspending exercises to stop it.
The simpler alternative to all these roundabout schemes for improving U.S. national security is to make peace and end this pointlessly dangerous war with a hostile nuclear power. Nixon managed to bury the hatchet with China, so there is no convincing reason Trump could not do it with North Korea.
One thing is for sure: we are not going to get anywhere if we stay stuck on something as basic as those exercises.
Edited by James Fretwell and Oliver Hotham
Featured image: South Korean Ministry of National Defense (MND)
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