The Korean War has Resumed !! (Or so we are told)

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Readers may wonder how they missed such a momentous event as the resumption of the Korean War. Don’t go scurrying to the TV or start clicking on those news sites just yet! There has been no use of force on the Korean Penninsula. However, it has been claimed that, as a matter of law,the Korean War has resumed. The argument was made in the Wall Street Journal, earlier this month, by Gordon Chang, an American  lawyer who writes on Chinese and Korean issues. Chang’s argument is that North Korea’s announcement on 27 May this year that it will no longer be bound by the 1953 Armistice Agreement which ended the Korean War (1950-53) means that the armistice is ended and that “North Korea . . . has resumed the Korean War.”

He makes this argument in order to provide legal justification for the US to circumvent UN Security Council Resolution 1874 (adopted after North Korea’s nuclear test in May) and to take a more robust approach to inspecting North Korean vessels. Chang’s argument is a dangerous one since if it were correct, it would not only justify the acts suggested by Mr Chang but would justify a broader use of force against North Korea.  In some ways, the argument is reminiscent of the arguments used to justify the legality of the 2003 Iraq War. There has been a breach of an agreement and so a prior war is on again! The argument was wrong then (when applied to breach of a Security Council resolution) and one is wrong now (when applied to a declaration of termination of an armistice).

UN Security Council Resolution 1874 calls on States to inspect vessels on the high seas which they believe to be violating the UN sanctions imposed on North Korea. However, inspections may only be carried out with the consent of the flag State. If the flag State refuses inspection on the high seas, it (the flag State) is to direct the vessel to an appropriate and convenient port for inspection. Chang argues that as a result of North Korea’s announcement and because there has never been a peace treaty formally ending the Korean War:

“the U.S., as a combatant in the conflict, as leader of the U.N. Command, is free to use force against Pyongyang. On legal grounds, the U.S. Navy therefore has every right to seize [North Korean vessels], treat the crew as prisoners of war, and confiscate its cargo, even if the ship is carrying nothing more dangerous than melons. Because the Navy has the right to torpedo the vessel, which proudly flies the flag of another combatant in war, it of course has the right to board her.”

As can be seen, Chang couples the argument about termination of agreements leading to resumption of a right to use force with traditional aspects of the law of armed conflict at sea. In particular, he relies on  right of belligerents to visit and search enemy merchant ships and to confiscate enemy cargo on board such ships. However, these rights only apply in the case of an armed conflict. The question here is whether there is a current armed conflict involving the United States and North Korea. Did the 1953 armistice terminate that armed conflict? Does the armed conflict resume merely on account of a verbal declaration suspending or terminating the armed conflict? The best answer to this question is to be found in the chapter by Christopher Greenwood (now Judge at the ICJ) in Fleck (ed.), The Handbook of International Humanitarian Law (2nd ed., 2008) (Chapter 2, p. 68):

“The changes in the law regarding resort to force brought about by the adoption of the UN Charter have had a particular effect on the right of the parties to resume hostilities after the conclusion of an armistice or ceasefire of indefinite duration. Whereas the law once admitted there was a general right to resume hostilities (Article 36 Hague Reg), today it would be a violation of Article 2(4) for a state to resume hostilities unless the behaviour of the other party to the armistice or ceasefire amounted to an armed attack or the threat of an armed attack. Similarly, although under the traditional law the conclusion of an armistice did not prejudice the right of a party to exercise belligerent rights against shipping, such action would now be lawful only if it constituted a necessary and proportionate measure of self-defence.”

As pointed out by Greenwood and other scholars, the Security Council has rejected the view that belligerent rights continue to obtain after an armistice has been concluded. This rejection occurred in the context of Egypt’s continued exercise of belligerent rights against shipping after the 1949 armistice terminating Egypt’s war with Israel. In Resolution 95 of 1951, the Security Council stated that:

“. . . since the armistice regime, which has been in existence for nearly two and a half years, is of a permanent character, neither party can reasonably assert that it is actively a belligerent or requires to exercise the right of visit, search and seizure for any legitimate purpose of self-defence.

 . . .

further finds that the practice cannot in the prevailing circumstances be justified on the ground that it is necessary for self-defence.”

It may be argued that this Security Council rejection only applies in the case of an armistice that is in force and not repudiated by either party. Thus the North Korean case would be different. But this misses the point, which is that since the adoption of the UN Charter an indefinite armistice and a general close of military operations terminates hostilities and brings to an end rights which exist under the law of armed conflict (apart from cases where IHL applies beyond the termination of hostilities). For those rights to be resumed there will, in general, need to be a resumption of an armed conflict. This in turns requires the actual use of force by armed forces. A mere verbal termination of an armistice does not mean that  there is an armed conflict. And of course, an actual use of force by one State against another must be justified under the jus ad bellum.

The Geneva Conventions (1949) say that they apply in case of a declared war or any other armed conflict (Art. 2, para. 1). These instruments will therefore apply in case of a declared war even where no hostilities take place. Likewise, the Hague Conventions of 1907 (and the customary rules which result from them, in particular the right of visit, search and seizure of enemy merchant vessels) apply in time of war. The question that arises is whether the verbal announcement that an armistice is no longer regarded as binding is to be taken as a declaration of war, meaning that the law of armed conflict immediately becomes applicable. My own view is that this is not the case. There is a strong presumption that States do not intend to create a state of war. As McNair and Watts, The Legal Effects of War (4th ed. 1966), p. 8 state:

“So serious a matter as the existence of a state of war is not lightly to be implied.”

According to Greenwood:

“Only if a statement that a country is at war was clearly intended to create a state of war, in the full legal sense, will it be taken to have that effect.”

 As far as I can see, North Korea’s statement  announcement does not even use the word ‘war’ nor is there any indication that they intend to create a state of war. In fact, the thrust of their statement is that others, the US and South Korea included do not have the right of visit and search. That would be inconsistent with a North Korean view that as a matter of law, there is a resumption of the war.

Later this week, Seunghyun Sally Nam, a former Oxford student of mine, who now works in the Korean Peninsula Peace Regime Division at the South Korean Ministry of Foreign Affairs and Trade will address some of Gordon Chang’s arguments regarding the termination of the armistice. She will be writing in her personal capacity and her views do not necessarily reflect the position of the government of South Korea.

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