October 16, 2006 | National Review Online

Krauthammer, Kennedy & Korea

With characteristic sagacity last Friday, Charles Krauthammer invoked President Kennedy's Cuban-missile-crisis strategy as a model for dealing with North Korea's most recent nuclear antics.

It's not a perfect analogy. JFK deterred Cuba by directly threatening its sponsor, the Soviet Union, with “a full retaliatory response” if Cuba dared use its missiles against any Western nation. Krauthammer does not argue that we should similarly threaten North Korea's lifeline, Communist China. But, focusing on the modern nightmare of terrorists armed by rogue states, he points to Kim Jong Il's recklessness and suggests that we threaten “to regard any detonation of a nuclear explosive on the United States or its allies as an attack by North Korea on the United States requiring a full retaliatory response upon North Korea.”

China and Russia, as expected, began undermining Saturday's Security Council sanctions resolution before the ink could even dry. Given that, along with the “international community's” fetish for dialogue — no matter how counterproductive, and no matter how evil, irrational or implacable one's interlocutors may be — Krauthammer's suggestion makes eminent sense. Rather than buying a mirage of peace by appeasing a tin-pot extortionist, we would instead bluntly admonish the North that its vital interests lie in tamping down its nuclear ambitions (and the proliferation that would inevitably follow the attainment of those ambitions).

But just because it's sensible, does that make the idea practical? It's a question that must be asked in our era of proliferation, international law, and enemy-friendly diplo-war.

For instance, Krauthammer observes that a corollary of his position is that we can't let Iran go nuclear. Once there were two rogue states in the club instead of one, he reasons, we'd no longer be able to assume that a terrorist with a nuke must have gotten it from North Korea; thus, the anti-proliferation threat of “if anyone misbehaves, we're blaming you” would collapse. But hasn't that ship already sailed? After all, North Korea itself made a great leap forward in its nuclear development thanks to A. Q. Kahn and Pakistan. Even if politesse counsels against cavalierly employing the “rogue” label, the sad truth is there may already be other suspect proliferators.

Next, think how much the legal landscape has changed in the 40-plus years since the Cuban-missile crisis. By recalling JFK's threat of a “full retaliatory response,” one assumes Krauthammer is referring to the doctrine of “mutually assured destruction.” MAD famously deterred the Soviets throughout the Cold War because they knew use of a nuke would prompt an existentially devastating atomic response by the U.S. But are such threats permissible under international law? Or, at least, are they practical given the certainty and vigor of responsive condemnation?

Most of our allies (including those who would theoretically benefit from Krauthammer's proposed threat to North Korea) have ratified Protocol I Additional to the 1949 Geneva Conventions. Moreover, even though the United States has not ratified Protocol I — President Reagan having wisely declined to proceed with ratification in 1982 after the Carter administration signed it in 1977 — our government persists in a curious policy of self-abnegation: This flawed, rejected treaty is often regarded as if it were binding customary international law. The Army Field Manual, for example, relies on it.

Why is that relevant? Well, even with respect to military targets in wartime, Protocol I prohibits threatening — let alone carrying out — attacks in which it is ordered “that there shall be no survivors” (Article 40). Further, Protocol I flatly prohibits: attacks that target civilian populations, indiscriminate attacks, attacks which cannot be limited to military targets, attacks which hit military and civilian targets without distinction, and attacks in which the incidental loss of civilian life would be “excessive.” And it matters not whether such attacks are defensive responses to unjustified aggression.

Go back just a few months ago to Israel's predicament. Day-after-day, Hezbollah fired rockets that had no purpose other than to slaughter Israeli citizens indiscriminately. Yet it was Israel that was cited for purported international law violations by the ineffable Kofi Annan, among other transnational progressives, who claimed its retaliation was “disproportionate” because of undue collateral damage. (A dubious surmise since Hezbollah terrorists, by dressing like civilians, moving among civilians, and using civilians as shields, make it hard to tell who is truly “collateral.”)

Essentially, Israel's countermeasures, which were nowhere near as fierce as what JFK promised the Soviets, were limned as modern war crimes. And the accusation was effective: Israel fought with one hand (maybe two) tied behind its back. Although, like the U.S., Israel has never accepted Protocol I, it has nonetheless allowed lawfare to degrade its aura of invincibility — leaving it imperiled.

Finally, even if you could get around today's lavish constructions of international humanitarian law, would a threat of the kind Krauthammer suggests be credible given today's enemy-friendly approach to warfare?

It has been the law of the United States since the 1798 Alien Enemies Act that, in a declared war, enemy nationals may be detained. (See 50 U.S.C. Sec. 21 .) That is because a war between nations is not just between governments and the military forces they command; it is between peoples. The citizens of an enemy nation are presumed by our law to be loyal to the enemy. True, we haven't fought many declared wars and this detention power has been sparsely used. Still, the underlying theory remains sound. It is hard to win a war — and victory is supposed to be the object of war — if you are overly solicitous of enemy civilians.

Nonetheless, the theory is undermined by the modern practice of distinguishing rhetorically between regimes and populations. Our quarrel, we insisted, was not with the Iraqis; only with Saddam. The State Department announced last week that we'll soon be permitting spare airplane parts to be sold to Iran … because, after all, our quarrel is with the Iranian regime and we don't want to see ordinary Iranians endangered. And, of course, we love the North Koreans; it's just that awful Kim Jong Il and his government that we find repulsive.

All very admirable. But how does it square with formulating a Cold War-style deterrent that actually deters? How do you credibly threaten a country's regime with destruction — especially a regime that uses its indentured civilians as a shield for its military apparatus — when you've just gotten done telling the world you mean no harm to the country's citizens?

To be clear, I think Krauthammer is right. In fact, I think he's more right than he seems to think he is: It would be better for President Bush to emulate the Kennedy strategy — the linchpin of which was to make the sponsor bear the burden of its client's malfeasance — than to refine it for an age of transnational terror networks. That is, it may be far more practical and beneficial to warn China to rein in North Korea than to appeal to the Chinese as if they were a dependable ally — which, manifestly, they are not. It is not realistic, however, to say we're going to blame North Korea automatically if al Qaeda nukes something.

But does JFK's commonsense approach have teeth anymore? I wonder.

 — Andrew C. McCarthy is a senior fellow at the Foundation for the Defense of Democracies.


North Korea