‘Fire and Fury’ at the 38th Parallel: Exploring the Law of War’s Twilight Zones in a Potential Future Conflict on the Korean Peninsula

Abstract

On the surface, North Korean leader Kim Jong Un’s June 2018 Singapore summit with Donald Trump arguably ushered in a new era of good relations that banished the spectre of war hanging over the Korean Peninsula. But such irenic optimism may be unwarranted. In light of ongoing bellicose rhetoric between Trump and Kim, this paper considers the potential risk and consequences of a twenty-first century armed conflict on the Korean Peninsula. In addition to the rich variety of scenarios and issues raised by such a potential war, this hypothetical conflagration serves as fertile ground for exploring the contours and potential twilight zones of the Law of Armed Conflict (LOAC). For example, in the case of a possible US invasion of North Korea, the paper considers that an initial routing of the country’s armed forces could lead to the formation of organized armed groups (OAGs) mustering against American forces. Should only OAG members with “continuous combat functions” be permissible targets or should all members of the group? In light of widespread adherence to the Mine Ban Treaty, might the United States have a customary international law obligation to remove its anti-personnel landmines from the DMZ? In the event of a threatened US invasion, could Kim Jong Un possibly be justified in a first-strike launch of nuclear missiles? These are among the cutting-edge questions explored in this paper within the context of a hypothetical war on the Korean Peninsula. The paper divides itself into four sections. Part II reviews the history of the 1950-1953 Korean War and provides the historical and factual predicates necessary to understand the legal issues that might arise in any future potential conflict. It also considers the LOAC violations/war crimes that took place during that war. Part III then analyses the issues that could arise in a modern clash between North and South Korea. In the first instance, it considers what body of law would apply to the various belligerent parties in terms of whether the struggle would be considered a non-international armed conflict (NIAC) or an international armed conflict (IAC). After identifying the relevant legal regime, it will analyse various substantive legal issues, including: (1) the potential for a repeat of 1950-1953 war crimes and the manner in which they might be committed; (2) issues related to contemporary remnants from that mid-twentieth century conflict (e.g., use of landmines); (3) issues arising from North Korea’s unsavoury reputation as a rogue state (e.g., calling into question the possibility of such tactics as hijacking, torture, use of child soldiers, and use of human shields and other tactics of asymmetrical warfare); and (4) other more complex issues, such as potential civilian participation, explosive weapons in dense urban areas, drone strikes, cyberwarfare and potential use of weapons of mass destruction. Finally, the paper concludes by combining the historical and legal perspectives to offer insights on the odds and likely nature of any potential future conflict.