The Legal Case for Striking North Korea First

Does the necessity of self-defense leave ‘no choice of means, and no moment of deliberation’?

This article appeared in The WSJ on March 1, 2018. Click here to view the original article.

By John Bolton
March 1, 2018

The Winter Olympics’ closing ceremonies also concluded North Korea’s propaganda effort to divert attention from its nuclear-weapons and ballistic-missile programs. And although President Trump announced more economic sanctions against Pyongyang last week, he also bluntly presaged “Phase Two” of U.S. action against the Kim regime, which “may be a very rough thing.”

CIA Director Mike Pompeo said in January that Pyongyang was within “a handful of months” of being able to deliver nuclear warheads to the U.S. How long must America wait before it acts to eliminate that threat?

Pre-emption opponents argue that action is not justified because Pyongyang does not constitute an “imminent threat.” They are wrong. The threat is imminent, and the case against pre-emption rests on the misinterpretation of a standard that derives from prenuclear, pre-ballistic-missile times. Given the gaps in U.S. intelligence about North Korea, we should not wait until the very last minute. That would risk striking after the North has deliverable nuclear weapons, a much more dangerous situation.

In assessing the timing of pre-emptive attacks, the classic formulation is Daniel Webster’s test of “necessity.” British forces in 1837 invaded U.S. territory to destroy the steamboat Caroline, which Canadian rebels had used to transport weapons into Ontario.

Webster asserted that Britain failed to show that “the necessity of self-defense was instant, overwhelming, leaving no choice of means, and no moment of deliberation.” Pre-emption opponents would argue that Britain should have waited until the Caroline reached Canada before attacking.

Would an American strike today against North Korea’s nuclear-weapons program violate Webster’s necessity test? Clearly not. Necessity in the nuclear and ballistic-missile age is simply different than in the age of steam. What was once remote is now, as a practical matter, near; what was previously time-consuming to deliver can now arrive in minutes; and the level of destructiveness of nuclear, chemical and biological weapons is infinitely greater than that of the steamship Caroline’s weapons cargo.


Ambassador John Bolton, a diplomat and a lawyer, has spent many years in public service. He served as the U.S. Permanent Representative to the United Nations in 2005-2006. He was Under Secretary of State for Arms Control and International Security from 2001 to 2005. In the Reagan Administration, he was an Assistant Attorney General.