"Fire and fury" at the 38th parallel : exploring the law of war's twilight zones in a potential future conflict on the Korean Peninsula
Gregory S. Gordon
Asia-Pacific perspectives on international humanitarian law
Cambridge : Cambridge University Press, 2020
This chapter explores the international humanitarian law issues that would arise if the current tension between North Korea and the United States sparked a fresh outbreak of hostilities on the Korean Peninsula. It first reviews the history of the 1950–1953 Korean War and provides the historical and factual predicates necessary to understand the legal issues. It also considers the war crimes that took place during that war. The chapter then analyse the issues that could arise in a modern conflict. In the first instance, it considers what body of law would apply to the various belligerent parties in terms of whether the clash would be considered a non-international armed conflict (NIAC) or an international armed conflict (IAC). After identifying the relevant legal regime, it analyses substantive legal issues, including: (1) the potential for a repeat of 1950–1953 war crimes; (2) issues related to contemporary remnants from that mid-twentieth-century conflict (e.g., use of landmines); (3) issues arising from North Korea’s unsavoury reputation as a rogue state (e.g., calling into question the possibility of such tactics as hijacking, torture, use of child soldiers, and use of human shields and other tactics of asymmetrical warfare); and (4) other more complex issues, such as potential civilian participation, explosive weapons in dense urban areas, drone strikes, cyberwarfare and potential use of weapons of mass destruction. Finally, the chapter concludes by combining the historical and legal perspectives to offer insights on the odds and likely nature of any potential future conflict.
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