Washington International Law Journal


Kelly J. Malone


On January 29, 2002, President George W. Bush linked North Korea, Iran and Iraq as members of an "Axis of Evil," alleging that North Korea's attempts to acquire weapons of mass destruction constituted a threat to international peace and security. On September 20, 2002, the Bush Administration released its National Security Strategy ("Strategy"). The Strategy adopted a doctrine of preemptive action that, although recognized historically, has been significantly limited by the U.N. Charter. In doing so, the Bush Administration has challenged traditional limits on the use of force, attempting to adapt the concept of "imminent threat" to the danger posed by rogue states such as North Korea. Through the Strategy, the administration asserted a right to use unilateral military force to prevent harm to the United States or its citizens. Preemptive action has immense emotional appeal to the American public, particularly in the aftermath of September 11, 2002. Although the primary focus of the preemption doctrine relates to its application in Iraq, there is the potential that the Bush Administration could use this principle to justify the use of force against North Korea. The continued escalation of the nuclear crisis on the Korean peninsula makes the use of force increasingly possible. A preemptive strike based on the presence or attempted acquisition of nuclear weapons, however, is not justified as an exercise of the right of self-defense under customary international law or the U.N. Charter. Moreover, the unilateral exercise of a right to use force preemptively is in direct opposition to the collective security structure established under the U.N. Charter. Furthermore, the use of force would undoubtedly result in massive casualties throughout Northeast Asia. Because of the Strategy's doubtful legality and potentially drastic consequences, a preemptive strike would not be justified in North Korea.

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