In the past few weeks there has been a lot of talk regarding North Korea and nuclear war. This current situation has given rise to the question, “Could the United States legally strike first?” On one side of the fence, it is argued that the United States may act pre-emptively in anticipatory self-defense if the United States determines North Korea to be an “imminent threat” to safety. The phrase “imminent threat” does not paint a clear picture of exactly when the United States may strike first. In November 2002, William Taft IV—at the time the State Department‘s top lawyer—wrote in a memo: “In the face of overwhelming evidence of an imminent threat, a nation may take preemptive action to defend its nationals from unimaginable harm.” If you agree with this side of the argument it seems the United States may strike first if it is overwhelmingly clear that North Korea is going to attack.
The argument on the other side of the fence is that, under the United Nations Charter, the United States cannot use force against another country unless the act is (1) in self-defense “if an armed attack occurs,” or (2) authorized by the Security Council. Under scenario 1, the United States cannot use force against another country unless that country has attacked the United States. This means that if the United States determines it necessary to strike first they must have authorization from the UN Security Council.
The threats from North Korea are very real and very serious. However, the American people can feel a little at ease knowing that both sides of the argument agree that the United States may strike first. It is simply a matter of how the pre-emptive strike is justified.