Vice President Mike Pence’s warning that “all options are on the table” in addressing North Korea’s weapons programs carries a barely veiled threat of preemptive U.S. attack. Such a strike risks horrific consequences. A preemptive attack would corner North Korea’s erratic leader, Kim Jong-un, and leave him no face-saving response but to lash out against his southern neighbor, unleashing a brutal regional war.
Beyond courting this calamity, a U.S. attack on North Korea would violate a hallowed principle of international law. The United Nations Charter allows an attack on a sovereign nation in just two cases — if authorized by the U.N. Security Council or if in self-defense after an armed attack. But because waiting for an armed attack can prove disastrous, there has been for centuries an allowance under international law for “anticipatory” self-defense to ward off imminent attacks, a standard most experts say prevails under the U.N. Charter today.
{mosads}This principle of imminence found its most influential expression in an 1842 letter by Secretary of State Daniel Webster. After the British justified an attack on U.S. territory as an act of self-defense, Webster delivered a famous rebuttal: Self-defense can justify one nation’s invasion of another only if the “necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”
No serious observer has suggested North Korea and its bellicose leader pose an imminent danger to our people or territory. In flouting the requirement of imminence, the Trump administration would not be the first to reject Webster’s vision. But the historical precedents for claims of anticipatory self-defense to counter non-imminent threats are a shameful lot.
In 1913 the Austro-Hungarian Empire weighed a preemptive war against Serbian aggression, a prelude to the attack that later touched off World War I. The Nazis claimed anticipatory self-defense to justify their invasions of Norway and the Soviet Union. And much closer to home, President George W. Bush invoked the doctrine of preemptive self-defense in the run-up to the 2003 invasion of Iraq. Then-President Bush belittled the concerns of those who “have said we must not act until the threat is imminent.”
The catastrophic toll of the Iraq War reveals Webster’s wisdom. By acting before the need for self-defense was “instant,” we waged war when there was no need at all — for Saddam Hussein’s weapons of mass destruction proved wanting. Today, the war grinds on, sowing chaos and bloodshed throughout the region.
Of course North Korea’s weapons programs, unlike Saddam’s, are no fantasy. But in attacking Kim’s regime without respecting the strict demands of self-defense, we would validate a strategy that ultimately may prove far more damaging to our safety.
For the danger of an expansive view of preemptive self-defense is that it is self-judged. Unscrupulous countries can claim that secret information or exaggerated security threats justify an armed attack. Indeed just last week North Korea announced in response to Secretary of State Rex Tillerson’s talk of getting tough with the regime that they had the right to launch a “super-mighty preemptive strike” against us.
Daniel Webster’s injunction that a nation may attack in self-defense only in cases of “an instant and overwhelming necessity” was only incidentally about timing. More fundamentally, it was about alternatives and the need to avoid war until there was “no choice of means.” But as recent talks with Chinese President Xi Jinping make clear, there remain other ways to increase the pressure on the Kim regime to disarm. Time is not yet of the essence.
Webster’s formula gained worldwide influence under customary international law and played a critical role at the Nuremberg trials, established by the United States and our allies after World War II. Among the criminal acts alleged against German leaders were “crimes against peace,” defined as the “planning . . . or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances.” Repudiating claims that Germany had acted in self-defense, the tribunal declared in Webster’s words that “preventive action in foreign territory is justified only in case of ‘an instant and overwhelming necessity for self-defense leaving no choice of means, and no moment of deliberation.’”
Those who sat in judgment at Nuremberg believed the principles they embraced would give moral guidance to the future. Supreme Court Justice Robert H. Jackson, who served as U.S. prosecutor, declared that “while this law is first applied against German aggressors, … if it is to serve a useful purpose it must condemn aggression by other nations, including those which sit here now in judgment.”
A claim of anticipatory self-defense imposes on us the moral obligation to judge our evidence scrupulously and to act only in case of a genuine, vital, near-term threat to our security. If we attack North Korea, we will be judged both by the quality of our evidence and by our moral justification for force in the face of peaceful alternatives.
George Fisher is the Judge John Crown Professor of Law at Stanford Law School. He is co-director of Stanford’s Criminal Prosecution Clinic and a former Massachusetts assistant attorney general and assistant district attorney.
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