The war of words between Trump and Kim is on. Each side is hurling threats at the other. Just weeks ago, North Korea launched the Intercontinental Ballistic Missiles (ICBM) with a possible range of reaching cities in the continental US. While the sabre rattling is ominous and immoral, the war dance between nation states is about power and the law governing that power. Usually, the latter loses. Let us look at the legal aspects of this sabre rattling between the US and North Korea.
Article 2(4) of the UN charter forbids force or the threat of using force against another sovereign nation. The language of the article is as follows: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Every time an American president opens his mouth, he issues a threat. President Obama said, “all options are on the table” in dealing with Iran. Others before him were similarly threatening and bullying nations around the world. Furthermore, presidents wage wars. It’s what they do.
President Trump has been labelled as a reckless, thoughtless, and crazy sort of president and rightly so. President Trump also threatens nations like Iran, Yemen, even Qatar to some extent. And he will also wage wars, which will be inherited by the next occupant of the Oval Office. Trump needs something to entertain his white supremacist racist traits and more importantly, to shift the focus away from the Russian investigation by Robert Mueller III. A war or talk of war helps in rallying the people around the flag and forgetting pretty much everything else. That is an American culture that Americans don’t know about. Mostly non-Americans understand it.
UN Charter Article 51 states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
It allows for a state to use force against another sovereign nation if an attack has occurred. According to Georgetown professor Anthony Clark Arend, the restrictive interpretation believes that the language of the Article 51 clearly requires for an attack to happen before the use of force can be legitimately justified. The less restrictive interpretation doesn’t require the states to wait for the use of force until an armed attack is occurred. Many scholars believe that there are situations where a first strike could be justified as a matter of self-defence. Professor Michael N Schmitt of the United States Naval War College argues that for a first strike to be justified as self-defence, three conditions must be met. The other state must have the ability to attack. It must be evident from the behaviour of the state that an attack is imminent. And lastly, there must be no other way to stop it. By that standard, if Iraq had attacked the US before it was invaded, it would have been completely legal.
University of Virginia law scholar, professor Ashley Deeks would likely place a possible US attack on North Korea in the category of Pre-emptive self-defence. Intellectuals that serve power never fail to ignore the fact that such self-defence justifications set a horrible precedent. Other nations with arch enemies, and there are plenty of them, can invoke the same justification in attacking their enemy state. This will drastically disrupt world peace and disturb the world order. The current international relations culture is an imperial one imposed on the world. Strong and rich nations set the norms of international relations for others to follow. Even the fate of a nation like North Korea rests in the hands of five strong nations. If they authorise an attack on North Korea, it becomes perfectly legal. That sounds no different than the Panchayat system in the rural areas of Pakistan.
The US constitution has given war-waging powers to the Congress. However, truth be told, the president is enormously powerful in waging wars even without Congressional authorisation. There is a rich history of that: Obama attacked Libya without Congressional authorisation. President Clinton unleashed missiles targeting Sudan and Afghanistan without asking the Congress. President Reagan attacked Libya and Grenada without Congressional authorisation. President Trump can wage a mini-war of hostilities with North Korea, which the Congress can stop after 60 days. However, there is no history of Congress bringing such a war to an end. Congress is asked for permission, not when the president wants to go to war, but when he does not. That is what Obama did when he decided not to invade Syria in 2013 after Syria crossed his famous “red line”. The US Congress has not formally declared war since World War II.
The writer is a freelance columnist.