Pre-Emption Against Pyongyang: is a Military First Strike on the Korean Peninsula Legal?

Abstract

North Korea and the U.S. still remain technically at war. This tense state of affairs is a legacy of the 1950-53 Korean conflict. However, recent evidence suggests that the U.S. and North Korea may be on the verge of another bloody war on the Korean peninsula, this time triggered by a possible U.S. military first strike against the D.P.R.K.

The impetus for a second Korean war stems, in part, from events in the early 1990s under the Clinton administration, which have been exacerbated under the current U.S. President, George W. Bush, as discussed herein. Evidence that the U.S. and North Korea may be on the brink of a second Korean war also represented a motivating factor in deciding that the issue discussed in this paper was both urgent and ripe for public discussion.

Thus, this paper examines the primary legal justifications for a U.S. military first-strike against North Korea, from both an international law and international relations perspective. To make the relevant analysis, this paper focuses on three (3) main sources of international law, specifically (i) international agreements; (ii) codified international law; and (iii) customary international law. This paper concludes by arguing that neither a convincing nor persuasive argument exists to justify a military first strike on the Korean peninsula.