As North Korea is threatening the US with violent attacks, the question rises what to do when a State might be attacked. When comes the time for a State to defend itself against an imminent attack? The conflict between North Korea and the US is closely related to the issue of anticipatory self-defence.
Under international law, States can neither threaten to use force nor use force in their international relations. This rule is widely regarded as a rule of ius cogens or a peremptory norm. The prohibition of the threat or use of force is the most important obligation of States under international law to maintain and promote international peace and security.
Despite the prohibition against the use of force, the Charter permits certain exceptions to the rule. According to article 51 of the U.N. Charter , States that have suffered armed attacks can defend themselves against the attackers. But what if a State is not being attacked yét?
This paper discusses the issue of the use of anticipatory self-defence, based on the question:
‘Under what circumstances would it be legally permitted for the US to use force against North Korea as anticipatory self-defence?’
Firstly, the definitions of self-defence and anticipatory self-defence are compared (2) and the requirements for the use of anticipatory self-defence are analysed (2.1). After this basic framework of anticipatory self-defence, the issue is applied at the conflict between North Korea and the US (3). There is a brief description of the current events (3.1) and shows the effect of those abstract requirements for anticipatory self-defence in an actual conflict (3.2). The conclusion summarizes the answer to the main question of this paper (4).
This research is done by the descriptive methodology as the paper contains interpretations on the requirements for anticipatory self-defence and shows how those requirements are applied at the moment. The paper is based on facts from different sources, such as Abass, the UN charter and jurisprudence like the The Caroline Case.
2. Self-defence versus anticipatory self-defence
Article 2(4) of the U.N. Charter prohibits the threat or use of force and is the most important obligation of States under international law to maintain and promote international peace and security. According to Article 51 of the U.N. Charter, States have the right to defend themselves but only if an armed attack occurs and until the Security Council has taken measures necessary to maintain international peace and security. This article allows states to use force as a last resort to protect their integrity.
The caroline case is still relevant for what constitutes anticipatory self-defence under customary international law. Moreover, the preconditions that can be found in the Caroline case have been extended to the right of self-defence in general, as the right of anticipatory self-defence is a form of the more general customary right of self-defence and the condtions for the application of these rights have to be more or less the same. The preconditions of self-defence in general are necessity, proportionality and immediacy. However it seems reasonable to add two more conditions: first, the Security Council has to take affirmative action, if the Security Council has not yet been able to take an action, only then an action of anticipatory self-defence will be justified. And second, the agressor state against which the right of anticipatory self-defence is being exercised has to be in breach of international law.
2.1 Which requirements must be met for using anticipatory self-defence?
According to Article 51 of the U.N. Charter, States have the right to defend themselves but only if an armed attack occurs and until the Security Council has taken the measures, necessary to maintain international peace and security, prescribed in this article. In the Nicaragua case the International Court of Justice (‘ICJ’) says an armed attack is: (1) action by regular State armed forces across an international border; (2) armed groups, irregular forces and mercenaries when (a) they are ‘sent by or on behalf of a State’ to carry out an armed attack against another State and (b) the attack is of such gravity so that it amounts to an armed attack if it was conducted by regular armed forces of a State.
When States are confronted by an overwhelming sense of danger, such as an imminent attack, States cannot afford to wait for an attack to occur before they act. So, in those circumstances, they can act in anticipation of an attack. The UN Charter does not provide for anticipatory self-defence. As a right, this defence originates from the customary international law priniciples govering self-defence. The customary rules supporting anticipatory self-defence were laid down in the ‘Caroline affair’ of 1837. In the Caroline affair you can find the following requirements: A State can use self-defence when its (1) necessary: that is to say that the threat or use of force is imminent, instant, overwhelming, leaving no choice (no alternatives) and no moment of deliberation and (2) proportionate to the threat or use of force and finally, anticipatory self-defence to the threat of force should take place (3) immediately and not after the attack has ended.
2.1.1. Capacity of the Security Council
In Article 51 of the U.N. Charter we can read that States can only exercise their inherent right of self-defence until the Security Council has taken the measures necessary to maintain international peace and security. The right of self-defence described in this article contains a limitation upon the right of anticipatory self-defence in international law. The use of force by a single State against another is not unilateral if it is authorized by a relevant authority, such as the U.N. Security Council.
2.1.2. Be in breach of international law
A state has the right of anticipatory self-defence if it is confronted by an unlawful armed attack or an unlawful threat of force by antoher state. A defending state can take military actions against an attacking state under international law.
The third condition for the application of the right of anticipatory self-defence is the necessity. The state threatened with an imminent attack must not have had any means of halting the attack other than recourse to armed force. There must be an instant, overwhelming, leaving no choice of means and no moment of deliberation of an imminent attack. If a state had been able to achieve the same result by measures not involving the use of armed force, and he still opts for the use of force, then that is contrary to the prohibition of the use of force. A special factor to consider in terms of the necessity test is the nature of the weapon . Even in the absence of an armed attack, the threat of nuclear warfare is a sufficient ground for the anticipatory self-defence measure of the quarantine.
Another condition for the application of the right of anticipatory self-defence is the requirement of proportionality. War is generally waged to bring about the destruction of the enemy’s army regardless of the condition of proportionality, but the doctrines of self-defence and anticipatory self-defence requires a connection between the action and its purpose, namely that of preventing the attack from occurring. What matters is the result to be achieved by the defensive action, and not the forms, substance and strength of the action itself.
Finally, anticipatory self-defence to the threat of force should take place while the threat is still going on, and not after the attack has ended. If the threat or attack in question consisted of a number of successive acts, and there is sufficient reason to expect a continuation of acts from the same source, the international community should view the requirement of the immediacy of the self-defence action in the light of those acts as a whole.
3. How applies the issue of anticipatory self-defence to an actual conflict?
In paragraph 2 anticipatory self-defence appears to be pretty abstract. Therefore will the issue be applied on an actual conflict, to make it more comprehensible. For this matter this paragraph describe how anticipatory self-defence can be used in the conflict between North Korea and the US.
3.1 Current events
It is usefull to give a short overview of what actually happened before applying the issue on the conflict between North Korea and the US. So lets start at the beginning: the year 1950. After being occupated by Japas since 1910 and by the Sovjet Union and the US since the Second World Warr, Korea was supposed to be reunited. Due to a communist regime in the North and a pro-west regime in the South this did not work out how it should. In 1950 North Korea attempted to conquer the South. South Korea got support from the UN and the US had a leading role in this matter. It came to a truce in 1953 that is been lasting ever since. There is still no peace treaty between the North and the South and so the US is still involved in this conflict. Straight forward to 2011, when Kim Jong-il died and his son Kim Jong-un took his place. Kim Jong-un decided to lounch multiple rockets in 2012/2013 to provocate. Therefore North Korea got charged with multiple sanctions by the UN and as a reaction to the provocation the US decided to show their military power to protect their ally South Korea. But at the moment, in 2016, North Korea is still provocating and threathening the US by lounching rockets and continues its nucleair program. As Noth Korea is ready to attack with the use of force, the question rises wether it is possible for the US to use anticipatory self-defence.
3.2 The effect of the requirements
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