Can US attack N. Korea without Seoul's consent?

By Kim Jae-kyoung

The likelihood of a military confrontation on the Korean Peninsula is growing higher than ever in the wake of North Korea’s sixth nuclear test, Sunday.

Following the North’s latest provocation, U.S. President Donald Trump and his administration have warned that any threat to the U.S., its territories including Guam or its allies “will be met with a massive military response.”

Amid escalating tension between Washington and Pyongyang, questions are arising over whether the U.S. can take military action without South Korea’s consent if the North launches missiles toward U.S. territories, particularly Guam.

This issue has become controversial after President Moon Jae-in, during his speech to mark Liberation Day on Aug. 15, said that without the consent of South Korea, no country can take military action.

In response to Moon’s speech, Burwell Bell, the U.S. Forces Korea (USFK) commander from 2006 to 2008, said the U.S. would not need Seoul's approval to strike the North with its own “offshore” military assets.

Military experts said that both legally and by international norms, the U.S. has the right to strike North Korea unilaterally, without South Korea’s consent.

“That is a key responsibility and obligation of a government to the people it represents. The U.S. of course has the right to take military action to defend itself without Seoul’s consent,” Tara O, an adjunct fellow at the Pacific Forum CSIS, told The Korea Times.

O, a retired U.S. Air Force officer, previously worked on numerous assignments in Asia, Europe, and the U.S., including the Pentagon and U.S.-South Korea Combined Forces Command (CFC).

She pointed out Moon might be referring to the CFC, a bi-national operational military command structure.

“Despite the calls of operational control (opcon) transfer, South Korea already has a say because the CFC works for the national command authorities ― presidents, defense ministers and secretaries ― of both South Korea and the U.S.,” she said.

“The U.S. provides certain military personnel and assets to the CFC through the USFK, but the majority of U.S. forces fall outside the CFC. So while Moon can give guidance to the CFC, he cannot do that to the entire U.S. armed forces. The rest of the U.S. forces work for the U.S. president.”

Balbina Hwang, a visiting professor at Georgetown University’s Center for Security Studies, said the confusion is due to a misunderstanding of international law, sovereign military powers and the alliance relationship.

“It is absolutely a fact and matter of international law, as stated by former USFK commanders, that the U.S. has the ability without needing any other country’s approval to strike any target with U.S. offshore military assets,” she said.

“The key word here is offshore. No one can deny this right as long as it abides by international norms for defense or deterrence.”

Legal versus political decision

Stephan Haggard, director of the Korea-Pacific Program at the University of California San Diego School of Global Policy and Strategy, concurred.

“This is about the contingency. South Korea cannot prevent the U.S. from defending itself if it is under attack, and the same is true of Korea,” he said.

“The U.S. cannot prevent Korea from exercising its right to self-defense. That is a sovereign right under the U.N. Charter.”

However, from a political point of view, Washington is unlikely to opt for a military strike without coordination or cooperation with Seoul, according to analysts.

Hwang, a former special adviser to the U.S. State Department, pointed out the fact that the U.S. right to use its military is purely an issue of sovereign rights so people must be careful about interpreting too much intent or meaning from this.

“The right to do so does not mean the U.S. wants to, is likely to or will. It simply means the U.S., as has any other sovereign country, has the sovereign right to do so,” she said.

In her view, the decision by the U.S. to actually launch a strike is never just a purely military decision but of far greater significance is the political reasons ― motivation, rationale and objectives ― of doing so.

“The U.S. never makes this decision lightly, precisely because the political implications of doing so on its relations with other countries are so profound and serious,” Hwang said.

Describing the issue as “a legal versus political response,” Haggard also expects the U.S. would coordinate with the South on any pre-emptive or preventive action.

“If the U.S. or its military assets are under attack, the U.S. has a right to respond,” he said.

“But as a practical matter, the U.S. would coordinate with the South and this would certainly be the case for any pre-emptive or preventive action.”

Against this backdrop, it is important for Seoul to maintain strong ties with Washington to avoid unilateral military action.

“A strong South Korea-U.S. alliance and defense should be the foundation in dealing with North Korea,” O said.