In the course of trying to structure the narrative around soaring tensions with North Korea, the Trump Administration has made major efforts to play up North Korea as an imminent threat, and the possibility that North Korea might attack as a realistic possibility.
And yet, realistically, most analysts agree that if a war does happen, it would be the US attacking North Korea, and not the other way around. This grim possibility necessarily comes with a question: can the US, having attacked North Korea and started a calamitous war, claim it was done in “self defense“?
Obviously they can, and would, try to do so. Some officials are already try to build a legal case that North Korea is a special case and that US military action would be justified, which only adds to concerns that a US attack might be forthcoming.
Making such a claim credible, however, is another matter. Throughout the past half a year of rhetoric, the US has been threatening North Korea far more than North Korea has been threatening the US. A third party observer would have little choice but to conclude that, while plainly both sides share blame for the worsening tensions, the US has broadly been the instigator of this row.
It would be a case of dramatic revisionism for the Trump Administration to even claim otherwise. The administration has been very open about the idea that their consistent threats to North Korea are trying to force a policy change, and attacking North Korea based purely on their retaliatory capabilities, despite being the exact nature of the threats, wouldn’t meet legal standards.
Some legal experts are warning that since North Korea is not an imminent threat, that is to say there is no reason to believe North Korea is about to attack the US, there exists no legal justification for preemptive action at all. Even if there were, the experts note it would need to be proportional, which doesn’t exactly fit with US officials threatening the “destruction” of not only North Korea, but its population.
Pushes for diplomacy have fallen on deaf ears, with Trump Administration officials insisting North Korea only understands threats and violence. Yet putting that theory into practice with a military attack almost certainly positions the US as aggressor, and risks major diplomatic fallout, on top of the calamitous death toll of the conflict itself.