Research Group on 'Korean Peninsula' FY2022－# 2
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Introduction: Renewal of the "Nuclear Possession Law"
On September 8, 2022, the 7th Session of the 14th Supreme People's Assembly of North Korea promulgated the "Law on DPRK's Policy on Nuclear Forces" (hereinafter, the "Nuclear Use Law''). This is not the first decree adopted by the Supreme People's Assembly on nuclear weapons. On March 31, 2013, Kim Jong-un, then First Secretary of the Workers' Party of Korea, delivered a speech at the Party's Central Committee plenary session. Following his speech, the Supreme People's Assembly adopted the "Law on Consolidating Position of Nuclear Weapons State'' (hereinafter, the "Nuclear Possession Law'') the following day on April 1. The Nuclear Use Law stipulates that the Nuclear Possession Law will "become invalid" (Section 1 of Article 11 "Others"). However, in terms of content, the new law carries over and updates many of the old law's provisions. While the 2013 Nuclear Possession Law seeks to justify the possession of nuclear weapons, the new Nuclear Use Law puts emphasis on the operation of nuclear weapons in keeping with Kim Jong-un's statement: "the current law clearly stipulates detailed provisions, such as the mission and composition of the nuclear forces, control and command over them, principles and conditions for their use, and their safe maintenance and protection." Hereinafter, I would like to confirm the background to the current Nuclear Use Law by comparing it to the 2013 speech by Kim Jong-un and the Nuclear Possession Law, and clarify North Korea's nuclear use principles indicated therein.
1. Two Principles of Nuclear Weapons Use: Two Warfare Scenarios
In retrospect, Kim Jong-un's speech at the plenary session of the Central Committee of the Workers' Party of Korea at the end of March 2013 envisioned two possible wars on the Korean Peninsula and suggested that North Korea would have a principle for using nuclear weapons in each of them. One scenario would be a direct nuclear attack from the United States, e.g., the "pre-emptive strike doctrine" professed by the George W. Bush administration. Of course, North Korea is not thinking of fighting an all-out nuclear war with the United States. North Korea has declared a no-first-use (NFU) policy since its first nuclear test in 2006 and has made similar declarations since, and the war envisioned on these occasions was a direct nuclear attack from the United States. North Korea has repeatedly conducted nuclear tests to increase the yield of its nuclear weapons and developed an intercontinental ballistic missile (ICBM) capable of reaching the US mainland, and it touted the "completion of its national nuclear force" when it launched Hwasong-15 in November 2017. North Korea's deterrence posture of establishing NFU and conducting counter-value attacks against large densely-populated cities such as New York and Washington with the concealed second-strike capability that would survive after the first strike can be said to be equivalent to the minimum deterrence formalized in countries such as India. The "war deterrence" strategy that Kim Jong-un referred to in this speech can be considered synonymous with minimum deterrence.
On the other hand, North Korea has also envisioned since the Cold War era that a nuclear war would break out as the situation escalates following an intervention by the US forces in an inter-Korean armed conflict. However, the Korean People's Army, which is inferior to the US-ROK Combined Forces in terms of conventional forces, cannot hope to win such a war. Therefore, in the event of an armed conflict between the North and South, North Korea will have to consider using nuclear weapons in order to prevent the US forces from intervening and escalating the conflict. Given the absence of nuclear weapons among the US-ROK Combined Forces, North Korea would use nuclear weapons first in this pattern but, rather than target a densely-populated metropolis such as Seoul, it will attempt to make the US hesitate to intervene by demonstrating its ability to hit small targets such as military installations and headquarters of the US Forces Korea (USFK). Therefore, nuclear weapons will be used as part of a strategy to deter US forces from intervening. The "war strategy" that Kim Jong-un referred to in this speech is equivalent to "de-escalation."
North Korea pursues these two nuclear deterrence postures simultaneously. The reason Kim Jong-un's remarks, or official documents such as party organs, declare a NFU policy while advocating a "preemptive nuclear strike" is not because they are intended to deceive through ambiguity, but because they envision two types of warfare and set out different principles of nuclear use that correspond to each of them. These two principles for the use of nuclear weapons also permeated Kim Jong-un's speeches. At the 8th Party Congress in January 2021, Kim Jong-un reaffirmed, "the DPRK would not misapply nuclear weapons unless aggressive hostile forces try to use their nuclear weapons against the DPRK." However, at the military parade held in celebration of the 75th anniversary of the founding of the Workers' Party of Korea, he clarified his position on the first use of nuclear weapons by mentioning "if, and only if, any forces infringe upon the security of our state and attempt to have recourse to military force against us, I will enlist all our most powerful offensive strength in advance to punish them." Kim Jong-un listed tactical nuclear weapons, ICBMs with a range of 15,000 kilometers, hypersonic glide flight missile warheads, nuclear submarines, etc., at the 8th Party Congress as part of "the five-year plan for the development of defense science and weapon systems" and, indeed, the purported "Hwasong-17" ICBM launched in March 2022 was - as listed in the five-year plan - observed to have a range of 15,000 kilometers in normal orbit. In this way, even if North Korea upholds NFU and retains ICBMs as a second-strike capability to support its "war deterrence" strategy, the NFU policy will not apply to other nuclear forces.
2. Deployment of Tactical Nuclear Weapons and "De-escalation"
Although the need for minimum deterrence under the "war deterrence" strategy against a direct nuclear attack from the United States still remains, what runs through almost the entirety of the new Nuclear Use Law is the "war strategy"-"de-escalation" - in the event the inter-Korean armed conflict on the Korean Peninsula is about to escalate into all-out war under the "wartime" operational control of the US-ROK Combined Forces commander. If North Korea perceives its conventional forces to be inferior to the US-ROK Combined Forces when inter-Korean armed conflict escalates into all-out war with US intervention, North Korea cannot expect victory even if it succeeds in containing the situation to a conventional war. After the second US-North Korea summit in Hanoi ended without adopting an agreement, North Korea launched short-range missiles such as the KN-23, an improved version of Russia's Iskander, that would be used to target the bases of USFK and South Korean forces. However, it is unlikely that North Korea has completed the development of tactical nuclear weapons to mount on them. The development of tactical nuclear weapons was listed in the five-year plan for the development of defense science and weapon systems, and Kim Jong-un has said, "It is necessary to develop tactical nuclear weapons," positioning it as a future task. However, if tactical nuclear weapons are developed and installed in short-range missiles such as the KN-23, they will become effective nuclear forces in deterring US military intervention in armed conflicts between North and South Korea.
What should be pointed out here is that the Nuclear Use Law was announced in response to the North Korean leader's remarks suggesting the deployment of tactical nuclear weapons. At that time, the ROK was in a period of transition to the Yoon Suk-yeol administration, and Yoon made a national defense pledge to "restore" the "Kill-Chain" conceived during the Park Geun-hye administration. Minister of Defense Suh Wook said that, in the event North Korea "shows clear signs of a missile launch," the ROK military "has developed the capability and readiness to strike its launch point and command and support facilities." In response, on April 2, Kim Yo-Jong, the Central Committee's Vice Department Director, criticized Suh, saying, "(he) revealed his confrontation hysteria with the DPRK, talking about a 'preemptive strike' on us." Kim Yo-jong issued another statement on April 4 rejecting the idea of a preemptive strike, saying, "...If anyone does not provoke us, we will never strike before anything else." On the other hand, however, she said, " if South Korea opts for such military action as a 'preemptive strike', ...the situation will change." Furthermore, Kim Yo-jong said, "our nuclear combat force will have to inevitably carry out its duty" and "a nuclear combat force is mobilized to seize the initiative at the outset of a war, completely dampen the enemy's war spirits, prevent protracted hostilities and preserve one's own military muscle." It can be said that Kim Yo-jong has shown her willingness to gain the initiative in thwarting escalation - "escalation dominance" - by using tactical nuclear weapons preemptively against the nuclear-free US-ROK Combined Forces.
In this context, Kim Jong-un's speech at the military parade in celebration of the 90th anniversary of the establishment of the Korean People's Revolutionary Army on April 25, 2022, deserves special mention. In his speech, Kim Jong-un mentioned that North Korea's nuclear forces have a "single mission" of "deterring war" but, at the same time, he said "our nukes can never be bound" to this "should a situation we are not desirous of at all is created on this land." He continued, "If any forces try to violate the fundamental interests of our state, our nuclear forces will have to decisively accomplish their second mission." The "second mission" of nuclear forces is nothing other than "de-escalation" based on the preemptive use of nuclear weapons with counter-force attack capabilities, which differs from the "war deterrence" strategy comprising NFU and counter-value strike capabilities. Here, Kim Jong-un must have had tactical nuclear weapons in mind that would serve as the first rung on the nuclear "escalation ladder."
3. Nuclear Use Mandate and Nuclear Use Principles
The Nuclear Use Law thus assumes that tactical nuclear weapons will eventually be deployed in combat. When the "new tactical guided weapon" was launched on April 16, the Korean Central News Agency reported that it "is of great significance in enhancing efficiency in the operation of tactical nukes and diversification of their firepower missions." At the Third Enlarged Meeting of the Eighth Central Military Commission of the Workers' Party of Korea held from June 21 to 23, it was decided to "supplement the operational duties of KPA frontline units with an important military action plan." The "important military action plan" here is thought to refer to the deployment of tactical nuclear weapons. In his speech on the occasion of the adoption of the Nuclear Use Law Kim Jong-un said, "Most importantly, it is imperative to steadily expand the space for the operation of tactical nukes and diversify their application means on a higher stage so as to enhance the combat reliability and efficiency of the operational application of our nuclear forces, thus consolidating the nuclear combat posture in every way."
The first part of the Nuclear Use Law discusses the "mission of nuclear forces", stating "the DPRK, in case its deterrence fails, shall carry out an operational mission for repulsing hostile forces' aggression and attack and achieving decisive victory of war" (Section 2 of Article 1 "The Mission of Nuclear Forces"). "In case its deterrence fails" does not refer to a direct nuclear attack from the United States but instead to a situation in which US forces intervene despite North Korea's threat of use of tactical nuclear weapons to "de-escalate" an inter-Korean armed conflict on the Korean Peninsula about to escalate into all-out war with the intervention of the US forces. In such a case, North Korea would try to prevent further escalation of the war by conducting tactical nuclear strikes against the bases, headquarters, etc., of the intervening US forces. Any such use of tactical nuclear weapons would mean that North Korea has crossed the nuclear threshold, giving rise to a growing possibility that North Korea would use Intermediate-range and Intermediate-long range nuclear forces to deter combat operations by US forces in Japan and Andersen Air Force Base in Guam. Kim Jong-un's "greater victory" is premised first and foremost on preventing the intervention of these US forces.
The Nuclear Use Law also justifies a nuclear attack on Japan. "The DPRK shall neither threaten non-nuclear weapons states with its nuclear weapons nor use nuclear weapons against them unless they join in aggression or an attack against the DPRK in collusion with other nuclear weapons states" (Section 2 of Article 5 "Principles of Nuclear Weapons Use"). This provision must be taken up in this context as well. The paradoxical content of this statement is that North Korea, which illegally possesses nuclear weapons, will provide an NPT nuclear-weapon-state's specific negative security assurances (NSA) that it will not threaten or use nuclear weapons against non-nuclear-weapon states. This was already stated in the 2013 Nuclear Possession Law. Its prototype is the Ministry of Foreign Affairs memorandum "The Korean Peninsula and Nuclear Weapons" that North Korea announced on April 21, 2010 in response to the "Nuclear Posture Review (NPR)" issued by the Obama administration on April 6 of that year. The United States has provided NSA to non-nuclear-weapon states since the Carter administration. On the other hand, the United States has adopted a policy of deeming non-nuclear-weapon states exempt from the NSA if they are allied with other nuclear-weapon states or if they conduct operations in conjunction with nuclear-weapon states. This is commonly referred to as the "Warsaw Pact Clause," but President Obama retracted it, citing North Korea and Iran as exceptions to the NSA for failing to meet their nuclear non-proliferation obligations. In response, North Korea justified its possession of nuclear weapons in the 2013 Nuclear Possession Law and stated that, even though Japan is a non-nuclear weapon state, it is also an ally of the United States and thus could also be subject to the use of nuclear weapons. This point was reaffirmed in the new Nuclear Use Law following the wording of the Nuclear Possession Law.
In North Korea, it goes without saying that the decision to use nuclear weapons including this case is made solely by Kim Jong-un. The Nuclear Use Law, following the 2013 Nuclear Possession Law states, "the nuclear forces of the DPRK shall obey the sole command of the President of the State Affairs Commission of the DPRK" (Section 1 of Article 3 "Command and Control of Nuclear Forces"). On the other hand, the Nuclear Use Law mentions a state nuclear forces command organization assigned to assist the President of the State Affairs Commission that was not mentioned in the 2013 Nuclear Possession Law. This organization comprises members appointed by the President of the State Affairs Commission and is said to "assist" the President throughout "the whole course from decisions-making concerning nuclear weapons to its execution" (ibid. Section 2). In other words, no decision can be made - whether it be on the development and deployment of nuclear weapons or their use - without Kim Jong-un's consent.
However, no matter how much the nuclear force is increased, it will not serve as a deterrent or combat force if it is neutralized in advance. Since the adoption of the Nuclear Possession Law in 2013, there has been talk in the United States, especially under the Trump administration, of "decapitation" strikes targeting the North Korean leadership. Furthermore, as pointed out above, when the Yoon Suk-yeol administration insisted on "restoring" the "Kill-Chain," North Korea criticized this move as allowing for "preemptive strikes." In Japan as well, it was argued that the ability to attack "command and control" should be included in "the capabilities to counterattack enemy bases." If North Korea does not delegate the use of its nuclear weapons to commanders, it could become unable to use its nuclear weapons in the event of an attack on its leadership. Regarding this, the Nuclear Use Law states that "If the command-and-control system over the state nuclear forces is placed in danger owing to an attack by hostile forces, a nuclear strike shall be launched automatically and immediately to destroy the hostile forces, including the starting point of provocation and the command according to operational plans decided in advance" (ibid. Section 3). In other words, if there is a sign of an armed attack, it will be possible to use nuclear weapons even before such an attack takes place according to operational plans prepared in advance.
It is often pointed out that the authority to use nuclear weapons may be delegated to front-line commanders when tactical nuclear weapons are deployed. When Pakistan deployed tactical nuclear weapons, India pointed out that Pakistan had delegated the authority to use nuclear weapons to front-line commanders. Pakistan denied this but some in India, while pointing out the laxity of Pakistan's nuclear control, argued that Pakistan is trying to increase the deterrence effect by adopting a posture that enables immediate use of tactical nuclear weapons in response to the use of conventional forces. In the case of North Korea, however, mandates to use nuclear weapons are no more likely than in Pakistan. In North Korea, where centralized control of nuclear weapons by the Party is one of the sources of the military's absolute loyalty to the Party, delegating the use of nuclear weapons to front-line commanders is equivalent to losing one source of control over the military.
Therefore, if North Korea fears that an attack on Kim Jong-un and other leaders would neutralize its nuclear arsenal, it will be motivated to opt not only for first use but also early use of nuclear weapons. Article 6 ("Conditions for Using Nuclear Weapons") of the Nuclear Use Law lists five situations. In three of them - in case an attack by nuclear weapons or other weapons of mass destruction has been launched or judged imminent, in case a nuclear or non-nuclear attack by hostile forces on the state leadership and the organization of state's nuclear forces command has been launched or is judged imminent, or in case a fatal military attack has been launched against important strategic objects of the state or judged as imminent - the use of nuclear weapons would be authorized not only in response to a nuclear attack but also when an non-nuclear attack is deemed imminent. Although this itself is seemingly intended to deter non-nuclear attacks on the leadership, there is a risk of early use of nuclear weapons if North Korea "deems an attack imminent."
Conclusion: The Risks of "Early Use"
Of the two strategies Kim Jong-un mentioned at the end of March 2013 at the Party Central Committee meeting - the "war deterrence strategy" and the "war strategy" - the recently adopted Nuclear Use Law clearly emphasizes the latter. As long as the "war strategy" is synonymous with "de-escalation" to prevent an inter-Korean armed conflict on the Korean Peninsula from escalating to US military intervention and consists of nuclear weapons first-use and counter-force attacks, it can be said that North Korea recognizes the utility of tactical nuclear weapons as the first rung on the "escalation ladder." In the process of announcing the Nuclear Use Law, there was also rhetoric positioning tactical nuclear weapons as a means of countering the "restoration" of the "Kill-Chain" and the "preemptive strike" concept by the Yoon Suk-yeol administration, as Kim Yo-jong said. However, even if North Korea has envisioned a war in which the United States would be complicit in South Korea's "preemptive strike", it is difficult to imagine that the inauguration of the Yoon Suk-yeol administration and the "restoration" of the "Kill-Chain" triggered the development of tactical nuclear weapons since the development of tactical nuclear weapons was already included in Kim Jong-un's "five-year plan for the development of defense science and weapon systems" at the 8th Party Congress in January 2021. Even if the Lee Jae-myung administration, which would have succeeded the Moon Jae-in administration, had taken office as a result of the recent ROK presidential election, the Nuclear Use Law would have been announced anyway at some point. It should be said that the inauguration of the Yoon Suk-yeol administration and the "restoration" of the "Kill-Chain" provided North Korea with a justification for deploying tactical nuclear weapons and passing the Nuclear Use Law
While the Nuclear Use Law did update the 2013 Nuclear Possession Law and emphasize the preemptive use of nuclear weapons under the "war strategy" ("de-escalation"), it added a new warning about the nuclear forces being neutralized by an armed attack against the political leadership. Furthermore, the new law refers to a state nuclear forces command as an organization designed to assist the President of the State Affairs Committee, and it stipulates that nuclear weapons would be used automatically "in accordance with the operational plan decided in advance" "if the command-and-control system over the state's nuclear forces were placed in danger owing to an attack by hostile forces." Three of the five conditions for using nuclear weapons listed in the Nuclear Use Law stipulate that the use of nuclear weapons is permissible even when a non-nuclear attack by a hostile force is "judged imminent." As already pointed out, this also entails the risk of nuclear early-use.
This danger of early use of nuclear weapons also applies to tactical nuclear weapons, on which the Nuclear Use Law is premised. One of the "conditions for using nuclear weapons" listed in this law is "in case the operation for preventing the expansion and protraction of a war and taking the initiative in the war in contingency is inevitably needed". This is the same context as Kim Yo-jong's statement of April 4, when she criticized the "restoration" of the "Kill-Chain" by the Yoon Suk-yeol administration as a preemptive strike concept, saying "nuclear combat forces are mobilized to seize the initiative at the outset of a war, completely dampen the enemy's war spirits, prevent protracted hostilities and preserve one's own military muscle." If Kim Yo-jong intended in her statement to seize "escalation dominance" through tactical nuclear weapons, it should be noted that the "escalation dominance" itself carries the risk of an early use of nuclear weapons.
(This is an English translation of a Japanese paper with modification originally published on September 26, 2022)
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