By Cormac Power
North Korea is in the news yet again. While there has been a pretty hectic exchange of words between Kim-Jong Un and Donald Trump in recent weeks, Trump’s views on Kim have been clear since his own time on the campaign trail. In February of 2016, when asked about the potential to deal with Kim through an assassination attempt, Trump replied that he had “heard of worse things”. From listening to the rest of his time on that same campaign trail, he has DEFINITELY heard of worse things.
Alongside reports that South Korea is reforming an old ‘decapitation’ unit that ended badly in the 1960s, there are some pretty wild questions to be asked about the role of assassination on the Korean Peninsula. For all the fun comments of fire and fury and nuclear winters, is there a potential for the standoff with the North to end in a weird Suicide Squad-esque mission? Will Margot Robbie and Jared Leto be there? And how can we distinguish this kind of potential assassination from existing U.S operations that already conduct unannounced killings from the skies?
Firstly, what does international law say about this kind of stuff? Well, no surprise, the Geneva Conventions and pretty much all law ever is not a fan of assassination. Wild, right? Willful killing (deaths that are premeditated and carried out) are considered grave breaches under the Geneva Conventions. Not only that, but it pretty much violates all principles of the law of armed conflict. Let’s take a quick look.
Proportionality? Can the existence of nuclear weapons in the North be enough to justify an assassination? There isn’t much precedent for something like this, but it’s pretty fair to say that legal justification for a U.S or South Korean operation to remove Kim-Jong Un hasn’t got much precedent. FUN FACT: North Korea has also tried multiple times to assassinate South Korean leaders. Do previous attempts by the North at assassination justify a similar response?
How about distinction? This is the idea that any sort of attack that takes place can only aim for legitimate military targets. It’s not controversial to say that getting any sort of operation to the heart of Pyongyang would be extraordinarily difficult, so it’s not much of a stretch to consider a surgical strike mission or some kind of operation that involves many casualties in the North. Considering also that 25% of the North Korean population are part of its paramilitary force, the idea of what constitutes a legitimate target begins to hit shaky ground.
Military necessity is the last principle we should look at. Broadly speaking, this is the idea an attack must be in the aim of bringing about military defeat and necessary towards doing so. In looking at North Korea, the argument is that a pre-emptive strike on the leadership could bring about the end of the nuclear standoff and save infinitely more lives than any other outcome. This idea is controversial at best. While the two Koreas are still technically at war, could an attempt on the lives of the North’s military leadership be justified? I remain doubtful, but I don’t put it past some creative U.S military lawyers to find a justification for an attempt on Kim’s life, should they decide to do so.
While this entire article is based around a pretty insane premise, it’s important to frame this debate about assassination a bit more broadly. The U.S hasn’t exactly had a problem with engaging in secret operations of another kind: drone strikes. They have often done this without prior warning or acknowledgement, given that the assassination of Osama bin Laden was conducted nearly entirely without the knowledge or consent of the Pakistani government. The legal justification there seems to be that the US was at war with Al Qaeda, but this does remain a bit murky. Adding to this, when NATO forces tried to assassinate Muammar Gaddafi, the attack breached the UN resolution mandate of the forces in place, unless you consider an attack on Gaddafi to be actively “protecting civilians”.
There is a truly strange scenario in which a given breach of international law can be seen as more acceptable than others by virtue of what it achieves. Many decry the impact of unmanned drone strikes and the argument that they constitute war crimes carries some serious weight. Mossad has engaged in numerous high-profile assassinations over the years. Assassination happens, and it occurs in the pursuit of much smaller goals. So if, just if, a surgical strike on the North was to take out the leadership and somehow bring about negotiations that led to a resolution on the peninsula, how would we feel? Putting aside the sheer insanity of such a proposal, it’s worth reminding ourselves that international law is simply the constraints we put on our own actions. While the means are supposed to be the issue, the extent to which it justifies the ends tends to be a product of what those ends are.
Worth a think before we send in James Franco to recreate The Interview.
Cormac Power is Vice-President and resident nerd of UWA’s International Law Club. If you want chats about tea, North Korea or obscure facts about all things international relations, you can usually find him in the Tav regretting studying economics.