Lawfare Redux: Towards a Declaratory Posture for North Korea’s Nuclear Arsenal

By | October 05, 2012 | No Comments

A Declaratory Policy would let the world know how North Korea plans to use these. However, until North Korea can reliably demonstrate mastery, their policy will have to remain divorced from reality.

Nautilus Alum and nuclear expert Scott Bruce draws upon his years of dealing with North Korea directly and wonders how they may “surprise”—that is to say, threaten—us again.  While there are numerous methods the DPRK might use to exert geopolitical influence, the author finds a way that is simple, effective, and tailor made for a dictator looking to distract or to re-focus world attention.  In keeping with North Korea’s guerrilla heritage, it’s flexible, leaving plenty of room for escalation and de-escalation. Using international law to end-run the system may be undesirable on its face, but trading the barrister for the soldier is a very good bargain—it’s known as Lawfare and recently practiced by many countries as a relatively cheap safety release valve for pent-up international pressures.  -Roger Cavazos, Coordinator

Towards a Declaratory Posture for North Korea’s Nuclear Arsenal

by Scott Bruce

East Asia and the United States are in the middle of a transition in leadership. After these transitions are resolved, many experts expect a new provocation from North Korea. While a satellite launch or nuclear test will be costly for North Korea in terms of the political response from the US, UN Security Council, and, most importantly, China, North Korea could make a declaratory statement of its nuclear posture, something it has not done so far.

The declaratory posture for a nuclear weapons state notes the conditions under which the state would use or not use its nuclear arsenal. This policy statement may diverge from a state’s actual nuclear capabilities. Indeed, in the North’s case, it may have to be divorced from those capabilities given the lack of a viable delivery system for the North’s nuclear weapons. For North Korea, the declaratory statement would be another way of emphasizing its status as a nuclear weapons state, deterring invasion by clarifying the nuclear threat to the ROK and US, and compelling the US to engage with the DPRK (as a nuclear weapon state) to resolve the security situation on the Korean peninsula. Furthermore, a declaratory posture would be consistent with recent moves enshrining the nuclear program in the DPRK’s constitution.

Best estimates of some of the nasty surprises North Korea might be able to spring at any given moment.

A 2010 North Korean statement comes close to this declaratory policy noting,

“The mission of the nuclear forces of the DPRK is to deter and repel aggression and attack against the country and the nation until the denuclearization of the Korean peninsula and the world is realized. The DPRK is invariably maintaining the policy not to use nuclear weapons against non-nuclear states or threaten them with nuclear weapons as long as they do not join the act of invading or attacking us in conspiracy with nuclear weapons states.”

This statement was issued in response to the US nuclear posture review. The Statement supports the assessment that the North Korea’s nuclear program is intended to deter an invasion of the North by conventional forces.  The target is clearly on the US, a nuclear state, and the ROK and Japan, which are in a conspiracy (read: alliance) with the US. The words “invade” and “attack” are predictably opaque; it is not clear how these terms would be defined by a country that considers US-ROK military exercises to be a “declaration of war”. More recent Foreign Ministry pronouncements on the DPRK nuclear program, including the August 31 KCNA commentary, have not revised or expanded on this initial statement.

It is worth noting that this posture is very different from China’s declaration of no first use of nuclear weapons.

There are better ways to use this artist’s talent and there are better ways of getting the US’ attention.

A full statement of nuclear posture is not likely in the short term. Like a nuclear test, it would  waste leverage during an election cycle in the US, and with a lame duck presidency in the South. However, after the elections in November and December and inaugurations in January and February, if the North is not engaged by the US and/or ROK, it will take action to make certain that it is not lost amongst other national security priorities. Just as the 2009 missile test was a way of ensuring that North Korea got the attention of the Obama administration, it is reasonable to expect some activity in the early spring to make sure that all eyes are on the DPRK. Satellite launches and nuclear tests will be costly to the North. Although it is not clear how much additional UN or state-level sanctions will hurt the DPRK, political and economic relations with China would be negatively impacted by a satellite or nuclear test. A clarified declaratory posture for its nuclear weapons would be a tool that the North could use to bolster its status as a nuclear power, and demand attention from the US and ROK.

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