Anthony Arend Preemptive Use of Force 9/7/17 09/07/17 10:40:22 AM
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Anthony Arend, law professor and specialist in international law and just war, will speak at Creighton Friday, September 8, 2017 on preemptive use of force and the North Korea crisis.
Preemptive Use of Force To Be Addressed
By Prominent Georgetown Law Professor
By Julien R. Fielding
The Daily Record
For most of his academic career, Anthony C. Arend, professor and senior associate dean for graduate and faculty affairs in the Walsh School of Foreign Service at Georgetown University, has been interested in international law relating to the use of force.
When he was an undergraduate at Georgetown’a Edmund A. Walsh School of Foreign Service, he said he wrote his senior honors paper on “just war theory.” To do that, he worked with William V. O’Brien, who had served in the Army during World War II and was a specialist in international law and ethics and an authority on just war doctrine. For his Ph.D. – from the University of Virginia – he worked with another international law specialist, John Norton Moore. When he started teaching, in 1984, he focused on the subject, even later co-authoring a book, International Law and the Use of Force: Beyond the U.N. Charter Paradigm, with Robert J. Beck.
“More recently, I wrote about international law and the preemptive use of force for The Washington Quarterly,” he said.
Arend will share his expertise on the subject on Friday, Sept. 8, at Creighton University School of Law. He said that he was asked by the University of Nebraska at Omaha, in conjunction with STRATCOM, to come to Omaha, so he contacted his alumnus in the area and told them he would be in town. They jumped at the chance to have him deliver a lecture on the timely subject of North Korea and the preemptive use of force.
What does international law say about preemptive strikes? Arend explained that it depends on how one “understands the contours of contemporary international law. Under the United Nations Charter paradigm for the use of force, unilateral preemptive force without an imminent threat is clearly unlawful.”
Article 51 of the United Nations Charter provides: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations …”
“There are two schools of thought on the meaning of Article 51. Some, I call them restrictionists, say that you can’t use force unless you are hit first; many European scholars make this argument,” he said.
“The other group, counter-restrictionists, says you have to look at customary international law in practice. The case that articulated this doctrine is the Caroline incident of 1837. It involved a boat owned by U.S. nationals who were helping to foment insurrection of Canada. While the ship was moored on the U.S. side of the Niagara River, British troops crossed the river, boarded the ship, and killed several Americans, set the ship on fire, and sent it over Niagara Falls.
The British eventually apologized, but over the course of the diplomatic communications, two criteria for permissible self-defense, including preemptive self-defense, were articulated: necessity and proportionality.”
In the former, it had to be shown that the “necessity of that self-defense was instant, overwhelming, and left no choice of means, and no moment of deliberation,” he said. “You don’t have to be attacked first, but you have to show that attack is imminent.” In terms of proportionality, the response simply has to be proportionate to that of the original threat.
Things changed after Sept. 11, 2001. The Bush administration claimed that in “this day and age of weapons of mass destruction and terrorists, we might need to relax the traditional requirement of necessity,” he said. “By the time that imminent weapons of mass destruction use has been established, it may be too late to take any kind of successful preemptive action. The U.S. put itself in a bad place by saying this.” (To see the precise language of the National Security Strategy from 2002, go to page 15 at https://www.state.gov/documents/organization/63562.pdf.)
For instance, he explained, the U.S. could say that someone is building a nuclear reactor so we should take it out just to be sure it isn’t used in warfare. But then countries, such as North Korea, could use the same argument against the U.S because of the bellicose statement made by President Trump. “North Korea is a real pariah,” he said. “While this more permissive approach suggested by the Bush Administration has not been universally accepted, it does lay down an argument in support of the preemptive use of force even in the absence of an imminent threat. And North Korea could use this argument against the U.S.”
When asked to outline the current situation regarding North Korea, Arend said that it seems to be a no-win situation. North Korea has been engaging in missile tests, with intelligence experts saying that the country could be capable of launching a nuclear-capable, intercontinental ballistic missile very soon. They have already threatened Guam, which is a “refueling and staging hub for U.S. military action in East Asia,” and experts believe that they could hit a U.S. target “within a year.”
Sanctions have typically been imposed on countries that were seen as a threat, including Libya, Iran, Cuba, Syria, and Iraq, and sanctions have been placed on North Korea, and yet, Arend said that “heavy sanctions don’t seem to constrain leader Kim Jong-un.”
One of the biggest challenges to the U.S., and the other world powers, is that there isn’t a safe military option in dealing with North Korea, he said, and we can’t just launch preemptive strikes because we think they could have nuclear capacity.
Consider Operation Opera, he said, which in 1981 was a surprise Israeli air strike on the Iraqi nuclear reactor at Osirak. Israel “justified” its actions by saying that “the atomic bombs which that reactor was capable of producing whether from enriched uranium or from plutonium, would be of the Hiroshima size. Thus a mortal danger to the people of Israel progressively arose.”
“Israel was condemned for its impermissible use of military force,” he said. And yet, he added, Iraq didn’t launch an attack on anyone as retaliation. But that probably wouldn’t be the case with Kim Jong-un.
“His preoccupation is the survival of his regime,” Arend said, and if he were attacked, he might turn around and attack Guam, South Korea, or Japan, all of which have U.S. military bases with a significant number of troops. According to a Newsweek article from April of this year, we have a little more than 39,000 troops stationed in Japan, 23,500 in South Korea, and 7,000 in Guam.
Even more problematic is the fact that if a military strike were successful, North Korea would become a humanitarian disaster. According to Time magazine, “41 percent of its people are undernourished and more than 70 percent depend on food aid.” If the regime collapses, South Korea, China, and Japan could be flooded with refugees.
“It’s a no-win situation with a military strike,” Arend reiterated. “If we bomb the country, there will be thousands of dead, and we will have to rebuild the country. Neither China nor Russia will like the result of that. You can’t just take him out either. In certain circumstances you could do that – such as in the case of Bin Laden– but that was a different situation. Even if you tried to take (Kim Jong-un) out, who knows where he is at any given time? The only way to defuse this is to negotiate with North Korea, but to do that you have to give them something they want, and no one seems to want to do that.”
If diplomacy is needed, President Trump isn’t helping the situation. He has responded to missile launches by tweeting, in early July, such things as “North Korea has just launched another missile. Does this guy have anything better to do with his life? Hard to believe that South Korea and Korea will put up with this much longer. Perhaps China will put a heavy move on North Korea and end this nonsense once and for all!”
And back in April 2013, he tweeted, “Our President must be very careful with the 28-year-old wack job in North Korea. At some point we may have to get very tough – blatant threats.” And then, of course, there was his “off the cuff” threat in early August when he said, “North Korea best not make any more threats to the United States. They will be met with fire and fury like the world has never seen.”
North Korea responded with “Sound dialogue is not possible with such a guy bereft of reason and only absolute force can work on him.”
When asked if he was aware of any other time in history when both sides in a conflict had responded in such a manner, Arend referenced both Richard Nixon and John F. Kennedy. In the former’s case, during his last days, he was unstable and drinking heavily, but he had cooler heads around him, including James Schlesinger, who, was Nixon’s Secretary of Defense.
Apparently, he instructed the Joint Chiefs of Staff to check with him before carrying out any of the President’s orders regarding nuclear weapons. During the Cuban Missile Crisis, “Khrushchev was a bit out there, and even Maxwell Taylor – chairman of the Joint Chiefs of Staff, advocated a military strike against Cuba – but Kennedy was cool headed. And cooler heads prevailed,” Arend said.
But Trump is a different story: “He has no government experience; no military experience; and he seems to be such a narcissist on how he is perceived … when he’s on scripted message, he’s more balanced and reasonable, but the concern is that he will say or tweet something that’s ill-advised and that provokes North Korea to respond.”
On the plus side, Arend thinks that General James Mattis, Secretary of Defense; John Kelly, a former general and now Chief of Staff; and Lt. Gen. H.R. McMaster, National Security Advisor, are “well-placed” and could possibly prevent Trump’s decision to use military force, or, at the very least, restrain his use of it.
“I feel like Kelly has had a positive influence, and it’s good that [Steve] Bannon and [Sebastian] Gorka aren’t in the White House, but, Kelly and McMaster have no control over Kim Jong-un,” Arend added.
And there’s more bad news. Arend said that he’s heard that the State Department is a “tomb.” “We have [Rex] Tillerson [who is Secretary of State], and [John J.] Sullivan [who is the Deputy Secretary of State], and a couple of Obama holdovers, but otherwise, many positions are vacant.”
The same goes for our ambassadorships and undersecretary positions. According to an article from June of this year on CNN, “in addition to one out of every three ambassadorships being empty, five of the six undersecretary positions, and 22 of the 24 assistant secretary positions are also unmanned.” Even more problematic is the fact that the U.S. doesn’t have an Ambassador to Korea or Japan. Both Mark William Lippert and Caroline Bouvier Kennedy’s missions were terminated when Trump took office. All of this means that there isn’t anybody to “give guidance” to the President when problems arise, and, what’s worse is “there is a sense of aimlessness and demoralization in the department,” he added.
North Korea is a problem, there is no doubt, and “we have enough problems in the world. The last thing we need is another conflict. We need to deescalate this situation. The best thing for North Korea is for the regime to fall and for it to be put under receivership. But China doesn’t want a united Korea; they don’t want U.S. troops at their border. The U.S. would have to be willing to withdraw completely. We are in a no-win situation.”
Arend’s lecture will be between 4:30 and 5:30 p.m. on Friday at Creighton University School of Law, Room 124. There is no admittance cost. Due to limited seating, advance registration is requested. To do so, go to www.omahabarassociation.com/event/northkoreatalk2017 or email firstname.lastname@example.org. Nebraska and Iowa CLE credit will be requested.