John Bolton will assume office Monday with his first controversy as President Trump’s national security adviser awaiting him. Six weeks ago, he outlined his advocacy of an attack on North Korea in a Wall Street Journal op-ed titled “The Legal Case for Striking North Korea First.”
“Given the gaps in U.S. intelligence about North Korea,” he wrote, “we should not wait until the very last minute” to stage what he called a pre-emptive attack.
Mr. Bolton’s legal analysis is flawed and his strategic logic is dangerous. As he did before the 2003 Iraq war, he is obscuring the important distinction between preventive and pre–emptive attacks. Under rules of international law based on Daniel Webster’s interpretation of the Caroline case in 1837, a pre-emptive attack can be legal, but only if an adversary’s attack is imminent and unavoidable — when a need for self-defense is “instant” and “overwhelming.”
For example, if America had intelligence that North Korea had alerted military forces and was fueling long-range missiles on their launchpads or rolling out missile launcher vehicles, the United States could reasonably assume an attack was imminent and unavoidable and could legally launch a pre-emptive strike in what international lawyers call “anticipatory self-defense.”
However, if America attacked because President Trump was worried that continued North Korean missile and nuclear weapons development would ultimately increase Pyongyang’s ability to hold American cities at risk, the strike would no longer be “anticipatory” or “pre-emptive.” It would clearly be preventive — in legal terms, no different from a North Korean first strike against America motivated by Kim Jong-un’s fear that America might one day attack North Korea.
Preventive strikes are not legal under international law or the United Nations Charter. Indeed, the charter has a name for such an operation. It is “aggression.”
A disingenuous lawyer might argue that an attack on North Korea would not be a first strike but merely another strike in a continuing conflict, because combat in the Korean War halted in 1953 with an armistice, not a peace treaty. But that is specious. Given the armistice’s indefinite duration — during which the parties committed to “a complete cessation of hostilities” — the right to resume hostilities would require a new legal justification.
A domestic legal issue also arises because President Trump lacks constitutional authority to launch a preventive strike against North Korea. The power to declare war lies with Congress. Without its approval, the commander in chief’s powers allow him to introduce American forces into areas of hostilities only in emergencies or military situations “short of war.” Mr. Bolton’s insistence on not waiting until “the very last minute” to attack inadvertently acknowledges that such a strike wouldn’t be an emergency response that would provide an arguable constitutional basis for a president to act without congressional approval.
Mr. Bolton did, however, raise a useful analogy that evokes the need to assess laws in the context of strategic imperatives: the Israeli air attacks on the Osirak nuclear reactor in Iraq in 1981 and on a Syrian nuclear reactor in 2007. Both strikes were arguably illegal, since there was no imminent threat to Israel. But we would argue that Israel’s strikes were nevertheless wise, given the longstanding threats against it from dictatorships in Baghdad and Damascus, and the low risk that the attacks would escalate into a war. The attacks could be called, in legal terms, “illegal but legitimate.” Israel could argue that its formal violation of the law should be excused because it saved the world from new nuclear threats from Iraq and Syria.
But that is where Mr. Bolton’s analogy breaks down. The critical difference between an American preventive strike today and Israeli strikes in 1981 and 2007 is in their timing and the predictable consequences. Israel did not risk nuclear retaliation in attacking the Iraqi and Syrian reactors, which had not yet been activated. By contrast, North Korea could already launch nuclear attacks against South Korea and Japan, and devastate Seoul with artillery fire, even if its ability to strike the continental United States is uncertain.
This is the final strategic illogic of Mr. Bolton’s advocacy of preventive war. It is too late for such an attack to succeed without unacceptable retaliation. No American preventive strike could guarantee 100 percent effectiveness. If even one North Korean nuclear weapon were to remain and be launched against Seoul, an estimated 622,000 South Koreans would be killed outright. A similar catastrophe could be wrought on Tokyo. An estimated 250,000 United States citizens and 68,000 American troops also live in harm’s way in South Korea and Japan.
Despite Mr. Bolton’s enthusiasm, there are no tolerable military options for confronting North Korea. Congress does not have a vote in confirming the president’s national security adviser. But it should have a voice in rejecting dangerous threats to unleash an illegal and disastrous preventive war.
Scott D. Sagan is a professor of political science at Stanford. Allen S. Weiner is a senior lecturer in law at Stanford Law School.