US extended deterrence on Korea violates international law, argue experts

Posted on : 2024-06-18 17:09 KST Modified on : 2024-06-21 10:16 KST
The International People’s Tribunal on the 1945 US Atomic Bombings gathered experts in Hiroshima for a forum on how the US nuclear policies contravene international law and the US’ own rules for conflict
Participants in the second international forum for the International People’s Tribunal on 1945 US Atomic Bombings pose for a photo in Hiroshima, Japan.
Participants in the second international forum for the International People’s Tribunal on 1945 US Atomic Bombings pose for a photo in Hiroshima, Japan.

“The US policy of extended deterrence on the Korean Peninsula is a violation of international law and the United Nations Charter.”

This was the main conclusion reached at the second international forum of the International People’s Tribunal on the 1945 US Atomic Bombings held at a conference center in Hiroshima’s Peace Memorial Park in Japan. 

The International People’s Tribunal on the 1945 US Atomic Bombings is an event organized by the civic organization Solidarity for Peace and Reunification of Korea, or SPARK, at the request of Korean victims of the atomic bombings. The tribunal is slated to take place in New York City in 2026.

In preparation for the tribunal, SPARK held its first international forum in June 2023 near Hapcheon County, South Gyeongsang Province. There, it concluded that the dropping of the atomic bomb on Hiroshima was unlawful as it “violated the principle of distinction, which prohibits attacks on civilians, a fundamental principle of the international law of armed conflict.”

The second international forum, which was held in Hiroshima, the actual site of the 1945 US atomic bombing, focused on the current unlawfulness of US nuclear policies.

The first session examined the historical significance of the US nuclear bombing of Hiroshima from the perspective of the Korean victims, and the second session explored the unlawfulness of the use of nuclear weapons under international law as it has evolved since 1945. The third session discussed the unlawfulness of extended deterrence and explored ways to restore peace in Northeast Asia, including the Korean Peninsula.

Extended deterrence refers to the use of nuclear and conventional weapons and missile defenses by the US to defend its allies when they are attacked by armed forces.

The first speaker of the third session, Charles J. Moxley Jr., an adjunct professor of law at Fordham Law School, emphasized the unlawfulness of nuclear weapons. He used the fact that the US acknowledges the law of armed conflict (international humanitarian law) and relevant materials in the United States Forces manual, used by the US Army and Navy, as evidence for his claim.

According to international humanitarian law, it is unlawful for a state to use weapons whose effects cannot be controlled by the user, as the usage of such weapons makes it impossible to adhere to the principles of international humanitarian law such as the rule of distinction; the rule of proportionality, which stipulates that military necessity and considerations of humanity (such as the protection of civilian lives and assets) must be balanced in such situations; and the rule of necessity, which forbids the loss, injury, or damage to combatants, civilians, and their property which is not necessary for any military advantages.

The US has repeatedly recognized that the rules of distinction, proportionality and necessity prohibit the use of weapons whose effects cannot be controlled by the user.

US military manuals such as the Air Force Commander’s Handbook also state that it is unlawful to use any weapons that are “incapable of being controlled enough to direct them against a military objective.”

Moxley said that nuclear arms are the very definition of weapons that are “incapable of being controlled.” He also identified another basis for this position in the Air Force Manual on International Law, which defines “uncontrollable” as referring to effects that “escape in time or space from the control of the user as to necessarily create risks to civilian persons or objects excessive in relation to the military advantage anticipated.”

On this basis, he commented that while the US argues that technological developments have produced weapons that are “capable of precisely engaging discrete military objectives,” the weapons are actually “inherently uncontrollable” in the sense that “even low-yield nuclear weapons release radiation and potentially precipitate radioactive fallout that cannot be controlled.”

“We saw, when we looked at the makeup of the United States’ nuclear weapons arsenal, that the overwhelming majority of those weapons are strategic high-yield nuclear weapons,” he added, indicating that this would make their use even more unlawful.

Based on the illegal nature of the use of nuclear weapons, he concluded, “The policy of nuclear deterrence, including extended deterrence, followed by the United States is unlawful.”

As a basis for arguing the unlawfulness of extended deterrence, he pointed to the Nuclear Weapons Advisory Opinion issued by the International Court of Justice in 1996. At the time, the court ruled that “if the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph 4.”

Based on this recommendation, extended deterrence would itself be unlawful, since it involves threatening the use of nuclear weapons in the event of an attack against an ally or other party.

The second presentation was by Anna Hood, an associate professor of the Auckland Faculty of Law, who drew a distinction between “general threats” and “specific threats,” arguing that only the latter violated Article 2(4) of the UN Charter while the former did not.

“The US has not been in violation of this provision [Article 2(4)] when it has made general pronouncements that Japan and South Korea are under its nuclear umbrella, and it will use nuclear weapons to defend them if they are attacked,” she said.

“It is, however, a different story when it comes to specific threats. Prima facie, when the US has made threats to use nuclear weapons against North Korea [as a specific state], those threats have been contrary to the prohibition in Article 2(4) on threats,” she continued.

But fellow speaker Ko Young-dae, the co-representative of SPARK, stated that “all of the extended deterrences in South Korea have been specific threats when considering the Operation Plan and the ROK-US combined exercises,” including both cases that “provide extended deterrence by deployment of tactical nuclear weapons” (1957–1991) as well those that “provide extended deterrence by deployment of strategic assets” (since 1978).

He went on to say that this was in violation of Article 2(4) of the UN Charter.

“While the North Korean law on nuclear weapon policy enacted in September 2022 does not specify the US and South Korea [as targets], both South Korea and the US have taken this as a specific threat against them,” Ko went on.

“The intensive deterrence policy on North Korea’s part is a reflection of the intensity of threat it perceives from the US’ extended deterrence, but since it is accelerating the nuclear confrontation and nuclear arms race on the Korean Peninsula and in Northeast Asia, it should rightly be abandoned,” he urged.

The problem lies in the potential for threats to escalate into actual military clashes. Moxley cited the example of the doctrine adopted by the George W. Bush administration, which was in office from 2001 to 2009. As the doctrine indicated that the US “may exercise preemptive self-defense against perceived threats that are less than imminent in the ordinary sense of the word,” it was in violation of Articles 2(4) and 51 of the UN Charter, he suggested.

“This doctrine went well beyond the traditional understanding of international law,” he explained, characterizing it as measures on par with preventive warfare. He also observed that subsequent administrations, including the Obama administration, have not fully abandoned the doctrine of illegal preemptive attacks.

He went on to warn that the preemptive use of nuclear weapons based on this doctrine could result in irreversible tragedy for South and North Korea.

Ko stressed that “all extended deterrence in the name of an alliance constitutes a threat against a specific state.”

“In that sense, the abandonment of extended deterrence by South Korea, the US and North Korea is the only way to eliminate nuclear confrontation on the Korean Peninsula and bring peace,” he added.

He further said, “I still believe that the solution to this issue lies in signing a peace agreement on the Korean Peninsula.”

By Kim Bo-geun, senior staff writer

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