BY MARK DeSANTO — North Korea has posted a new propaganda video (available, here) to its YouTube channel contained in its government website, Uriminzokkiri. The video features images of a fictitious missile attack on the U.S. government buildings in Washington, D.C., including the Capitol Building and the White House. It depicts a “montage of clips of different weapons, including artillery guns firing and large missiles on display at military parades.”
Although military intelligence analysis claim that North Korea is still years away from possessing missile technology capable of targeting nuclear and/or long range missiles at the United States, the voice narrating the video says, “The White House has been captured in the view of our long-range missile, and the capital of war is within the range of our atomic bomb.” The narration further states, “The White House is caught in the panoramic sight of a (North Korean) long-range missile. This hotbed of war is in the scope of a nuclear bomb blow.”
While the narrator explains how the United States is now within reach of North Korean long-range missiles, the video “cuts to footage of the White House in an electronic sight’s crosshairs, and then a simulated explosion” of the Capital Building’s Dome.
Although disturbing, this latest video is not the first time North Korea has threatened to attack the continental United States. In October, 2012, a North Korean military official made public statements that North Korea possessed long-range missiles capable of striking the U.S. Last month (February, 2013), North Korea conducted its latest nuclear weapons test, detonating a sizeable nuclear weapon underground near P’unggye, yielding several kilotons of force. This latest video is likely in response to the United Nations Security Council’s vote to impose tougher sanctions on North Korea following its underground nuclear detonation.
“In a slew of angry rhetoric in response to the U.N. vote, North Korea has threatened to carry out a pre-emptive nuclear attack on the United States and South Korea” and further remarked that it was nullifying the armistice agreement that put an end to the Korean War in 1953.
On Friday, March 16, 2013, the Obama administration announced it is taking precautionary measures, and “beefing up its missile defense program against North Korea.” Defense Secretary Chuck Hagel announced plans to deploy additional ground-based missile interceptors on the West Coast of the United States as part of the efforts to enhance the nation’s ability to defend against possible missile attack from North Korea.
The prompt response from the Obama administration begs the question; to what extent may the United States respond to this video using military force without violating the strict confines of international law?
Anytime a state is contemplating the use of force, the United Nations Charter Article 2(4) mechanism is engaged. Article 2(4) is the codification of the general prohibition against the use of armed force; it states, “[a]ll members shall refrain in their international relations from the threat or use of force against … any state.”[1] Article 2(4)’s prohibition against the use of force is buttressed by Article 2(3), which further provides that “[a]ll members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice are not endangered.”[2]
In light of the foregoing, any U.S. military attack on North Korea would be a violation of Articles 2(4) and 2(3). Article 51, however, provides an exception to the prohibition against the use of force, and permits states to engage in a pre-emptive act of self-defense in response to an armed attack.[3] Such self-defensive action is commonly referred to as “anticipatory self-defense,” and is a very narrow exception in which states may use military force when there is an imminent threat of attack.
Pursuant to international law, in order to justify an attack on the grounds that such constituted anticipatory self-defense, the Caroline Doctrine must be satisfied.[4] The “Caroline test” spawned from the Canadian revolution against the British. The Caroline, a small steam ship, was an American vessel used by the Canadian refugees to travel and transport supplies between rebellion camps.
British forces boarded the ship, set it on fire and set her loose to adrift over Niagara Falls, killing one person and wounding several others. One of the perpetrators, a British soldier was arrested and the United States demanded reparations from Britain. In the ensuing litigation, the British government contested that its destruction of the Caroline was permissible anticipatory self-defense.
From this contention arose the “Caroline Test”, which provides acts of self-defense should be confined to cases in which the necessity of self-defense is (1) instant, (2) overwhelming, (3) leaving no choice of means, and (4) no moment for deliberation; requiring that any acts be proportional to the threat posed in that they are justified by the necessity of self-defense, limited by that necessity, and kept clearly within the necessary bounds.[5]
The Caroline doctrine is the applicable precedent that dictates whether a prospective U.S. military response would be violative of international law. In applying the Caroline doctrine, it is important to note that no one factor is dispositive. In light of North Korea’s repeated statements and threats of attack on the United States combined with its recent nuclear weapon detonation, the ever-increasing threat is beginning to rise to an “overwhelming” level.
Nevertheless, the remaining factors – an instant threat, leaving no choice of alternative means and no moment for deliberation – are difficult requirements to satisfy. One can hardly say that a propaganda video poses no moment for deliberation.
Accordingly, it is likely that North Korea’s propaganda video does not satisfy the Caroline factors; although the detonation of nuclear weapons and increasing frequency of such misconduct will continue to warrant U.N. reprimand as well as U.S. military attention.
[1] U.N. Charter art. 2, para. 4.
[2] U.N. Charter art. 2, para. 3.
[3] See U.N. Charter art. 51.
[4] The “Caroline Test” is a fundamental principle of international law and a 19th century formulation of customary international law. The doctrine was reaffirmed by the Nuremberg Tribunal in assessing Germany’s invasion of Norway and Denmark during World War II.
[5] See Duffy, Helen (2005). The ‘War on Terror’ and the Framework of International Law. Cambridge University Press. p. 157. ISBN 978-0521547352 (discussing United States Secretary of State Daniel Webster’s pronouncement that the necessity for forcible reaction must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation”).
