It’s that time of year again, that time when the thoughts of many in D.C. turn to “Is today the day we’re going to war with the Democratic People’s Republic of Korea?” D.C. is a weird place. In any case, the question is out there, and whether you agree with the analysis that we should be more worried this time than the many, many other instances of sabre-rattling from North Korea, it’s worth investigating a few less considered questions about any possible U.S. response to the DPRK.
Among those questions that I can honestly say is probably the least considered is “What about the United Nations?” Specifically “What about the U.N.’s original authorization for force against Korea?” Much like DC is a weird place, I am a weird person. But as the rhetoric has increased over the last few weeks, I’ve found myself considering just what role the U.N. would be in the event of renewed hostilities on the Korean Peninsula. I’m not just talking about the normal round of sanctions or diplomatic statements from the U.N. Security Council, but what role they should play in authorizing the use of force in the event of war.
We all know that the there’s no real peace between the Republic of Korea and the DPRK, whether Kim Jong-Un says there’s a “state of war” between the two countries or not. And despite the multiple attempts of Pyongyang to call the whole thing off, the cease-fire between the two is still in place according to the United Nations. And the simple fact is that should North Korea attack the South, Seoul has the right to self-defense under Article 51 of the U.N. Charter, whether the Council takes action or not.
But that right only goes as far as repulsion, defending against an attack, not necessarily an all-out offensive against the North or a preventative strike. So that led me to wonder just what authorities remain in place from the last time the two countries slugged it out: the Korean War. The fight against North Korea following its 1950 invasion of the South was — in name at least — fought under the banner of the United Nations.
So to begin with, let’s examine the resolutions the Security Council passed to authorize the use of force in Korea in the first place. Resolution 83, passed in the aftermath of a prior demand that North Korea cease hostilities being totally ignored, authorized the members of the U.N. to take action against the North. Sort of:
Recommends that the Members of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area.
That was quickly followed up with Resolution 84, that put the United States in charge of the U.N. operations in Korea and gave the commander the permission to do so in the name of the United Nations:
3. Recommends that all Members providing military forces and other assistance pursuant to the aforesaid Security Council resolutions make such forces and other assistance available to a unified command under the United States of America;
4. Requests the United States to designate the commander of such forces;
5. Authorizes the unified command at its discretion to use the United Nations flag in the course of operations against North Korean forces concurrently with the flags of the various nations participating;
Note that word there again — “recommends.” The Security Council was still less than a decade old at this time, and the language used in resolutions still had not been codified as it is today. These days, it’s accepted that use of the phrase “demands” or “commands” or other, stronger words is necessary to make the policies put forward from the Council totally binding. The early Security Council also wasn’t big on detail, preferring to pass short, broad resolutions, rather than the dense documents we see today.
Also, the fact is that the only reason the Council was able to take action against North Korea in the first place was the worst timed boycott in history; the Soviet Union was sitting out the debate and totally regret the decision. In any case, the original resolutions passed the Council, but with the return of the USSR, Moscow’s veto prevented much other action.
So they moved to the General Assembly. Yes, the Korean War prompted the conception of the “Uniting for Peace” resolution, wherein the General Assembly could bypass the Security Council in the event of a deadlock. I’ve written a good amount about why that was a bit shaky to begin with, so just go read that, but the G.A. then took command of U.N. policy towards Korea.
All of this is to say that the legal framework originally set up for the United Nations Command is on somewhat weak standing to begin with. The United Nations Command (UNC), by the by, is the formal name for group that took enforcement action against Pyongyang and soon Beijing. There was no such thing as the Department of Peacekeeping Operations, no power to the Secretary-General to really shape how this worked. Everything was run first through the UNSC, then the General Assembly. Again, sort of — the United States held all command authority, and the U.N. took part in name only, having no effect on strategy or tactics in the field aside from naming China a belligerent in late 1950.
For better or for worse, the UNC carried out its mission over the next several years, under the United States’ leadership. All of the deaths and years of fighting ultimately culminated in the Armistice Agreement, signed between — technically — the United Nations Command and North Korea. That Agreement gave a role to the UNC in administering the cease-fire, and set up the Demilitarized Zone as well as other, lesser known legal entities. Among those entities are the Military Armistice Commission (MAC), nestled under the UNC, and the Neutral Nations Supervisory Commission (NNSC).
While regular meetings of the two sides’ MAC members have halted in favor of meetings between duty officers in Panmunjom, the NNSC is still gong strong. The NNSC was originally to be composed of forces from nations who did not take part in the fighting watching over the DMZ, with the UNC-side nominating two countries and the DPRK nominating the other. The UNC choices of Sweden and Switzerland are still in place, while the Czech Republic and Hungary were forced out after the dissolution of the Eastern Bloc. The Washington Post’s Max Fisher recently suggested that a factory shared between the North and South is the place to watch for any sign of coming war; for my money, I say watch to see if the Swiss and Swedes are ever forced to leave as the true sign that the worst is coming.
In any case, the vast majority of the forces donated by U.N. Member States to the operation left after 1953, and operational duties of the U.S. and South Korean forces now falls under the Combined Forces Command (CFC). Established in 1978, this bilateral organization was designed to take the place of the UNC in commanding those that oppose the DPRK. Again, sort of — you’re beginning to see why this whole thing is ridiculously hard to untangle. Because as it turns out the UNC is still alive and kicking, so much so that it has a Commander — General James D. Thurman — who is also the head of the CFC.
That’s because, as it turns out, the authority of the United Nations Command was never switched off. No sunset clause was placed in the original resolutions, nor has the Security Council passed anything closing that authority like we’ve seen recently in the case of Libya. In fact, the latest action the U.N. took on the UNC was all the way back 1975. Even then, it was only two contradictory General Assembly resolutions, one “hoping” that the United Nations Command eventually be dissolved, the other “considering it necessary” that the UNC be dissolved. Neither was binding, neither followed through on.
The DPRK has as recently as this year said the United Nations Command should be dissolved. The U.S. at one point agreed, telling the Security Council in 1975 that the UNC would be dissolved in early 1976, as “the U.N. flag no longer flies only over most military installations” in Korea, only those places that help administer the armistice. Washington clearly changed its mind though at some point, because in 1994 then-Secretary-General Boutrous Boutrous-Ghali told North Korea in response to Pyongyang’s request that the UN be terminated that only the U.S. — and not any U.N. organ — has “the authority to decide on the continued existence or the dissolution of the United Nations Command.” And here it remains.
And all of that only takes into account the United Nations direct authority, not factoring in things like whether the U.S.-RoK mutual defense treaty trumps any need for a new resolution from the Security Council. So in the end, we return to the question “Does the United Nations approval for the use of force against Korea still stand?” The answer to that question was best given by The Simpsons‘ Rev. Lovejoy: “Short answer, ‘Yes, with an if’; long answer ‘No, with a but.'”