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Ⅰ. Comparison with the 2013 Law
II. The Similarities with Russia’s 2020 Basic Principles of State Policy on Nuclear Deterrence
III. Implications: Discrepancies between Pyongyang’s Nuclear Doctrine and Actual Capabilities
On September 8, 2022, North Korean leader Kim Jong Un used the second-day sitting of the 7th Session of the 14th Supreme People’s Assembly (SPA) as a venue to announce his most significant update to the country’s nuclear weapons law in almost a decade: The Law on the DPRK’s Nuclear Forces Policy. The Assembly passed the new law in a unanimous vote, according to the North’s official Korean Central News Agency, and the Rodong Sinmun devoted four pages to carry Kim’s speech delivered on the same day. As noted in the speech, the passage of a new law is another attempt by the North Korean regime to ossify its nuclear war-fighting posture that has rapidly materialized since the Eighth Congress of the Korean Workers’ Party held in January 2021.
Through a series of actions and narratives, North Korea had already devoted the first half of this year to reveal its intention to keep its nuclear arsenal in a war-fighting posture. The new law, in that regard, offers little new as it encapsulates the regime’s statements and actions into a single piece of legislation. That said, the law’s specific wording, format and the rationale underpinning Pyongyang’s nuclear doctrine offers better insight into what the regime is trying achieve with its new nuclear war-fighting doctrine and posture.
During 2018 negotiations with the United States, North Korea saw nuclear talks as a tool to get sanctions lifted and jumpstart its mineral exports and tourism industry. This is why North Korean narratives about nuclear negotiations in 2018 had mainly focused on framing the talks as an “effort to create favorable conditions for an improvement in economic situation.” It appears, however, that a totally different logic has been shaping Pyongyang’s calculus in recent years. The prevailing narrative in North Korea nowadays is that “safety guaranteed by the nuclear forces is critical to achieving a self-sufficient economy,” and this narrative culminated with Kim’s September 9th speech in which he vowed to “never give up” his country’s nuclear weapons. In other words, North Korea has publicly abandoned the rhetoric and framing it had used in 2018 to carve out an entirely different direction.
Even though the idea of gaining global acceptance as a legitimate nuclear state is a non-starter, North Korea has made ceaseless efforts to present its nuclear status as a fait accompli to the world. And as part of that drive, the regime codified a new policy on nuclear forces and established procedures for managing and controlling its nuclear weapons to further cement the status as a “responsible nuclear weapons state.” The latest codification might also be a carefully choreographed response to reassure longtime friends like China and Russia, who might at some point grow overly anxious about the regime’s rapidly maturing nuclear forces.
One of the most striking features of the new law is how it described the command and control system over the state nuclear forces. Some provisions provide greater clarity about command and control of the country’s nuclear weapons, which appears to be part of North Korea’s continued efforts to add substance and credibility to its new nuclear war-fighting posture. In the past, nuclear weapons were a last-resort option. Now with the new law in place, North Korea has cleared the way for first-use of nuclear weapon in conventional warfare should war break out on the Korean peninsula. Seen in this light, public statements from North Korea and a slew of weapons tests conducted this year were like the pieces of a puzzle that have been put together to complete the regime’s new nuclear policy. The passage of the new law on the DPRK’s nuclear forces policy, therefore, was its own perfect way of officializing the country’s almost year-long journey.
Ⅰ. Comparison with the 2013 Law
Article 11, paragraph 1 of the Law on the DPRK’s Nuclear Forces Policy clearly states that the law is passed as a replacement to the 2013 edition, the Law on Consolidating the Position of Nuclear Weapons State. The new legislation, to some extent, bears similarities to its predecessor. For instance, the 2013 law and the updated version both reiterate the North Korean regime’s commitment toward nonproliferation. But a closer look at some provisions reveals that there has been a profound change in how North Korea approaches the state nuclear forces.
The new law, made up of 11 articles and 2600 letters (in Korean), is twice the length of the 2013 edition comprised of 10 articles and 1200 letters, with major improvements in terms of structure. While the 2013 law included some vague wording or statements like “An invincible socialist power North Korea shines bright as a beacon,” the new law uses much more clearly defined terms and a well-organized structure. As its name suggests, the Law on Consolidating the Position of Nuclear Weapons State was written to show off North Korea’s solidifying nuclear power status to its people and the outside world. The new law, on the other hand, offers a detailed guideline on how to use, manage and control nuclear weapons. It is worth noting that several preceding nuclear states had documented nuclear doctrines or declaratory policies to unveil, albeit partially, guidelines on how to manage their nuclear weapons. Their purpose was to outline a clearer nuclear operation plan to maximize their nuclear weapons’ deterrence effect and ensure safety. Apparently, North Korea has taken a page from this playbook and created its own version with far more specific details.
1. On the ‘Mission’ of Nuclear Forces
The biggest difference between the new law and its 2013 edition lies in how they describe the mission of North Korea’s nuclear weapons. While the 2013 law’s article 2 stipulates North Korea could use nuclear weapons to “deter or repel invasion or attack from hostile forces and make annihilative retaliatory strikes against the origins of provocation,” the new law expands the conditions for nuclear attack. Paragraph 1 of Article 1 states that the primary mission of nuclear forces is to deter wars, and paragraph 2 codifies an additional mission that reads, “the nuclear forces shall carry out an operational mission for repulsing hostile forces' aggression and attack and achieving decisive victory of war in case its deterrence fails.”
At first glance, the new law and its 2013 edition may not differ in terms of how they describe the mission of Pyongyang’s nuclear weapons, but the new version takes a significantly different tone. It shows how North Korea’s perception of the mission of nuclear weapons has evolved over the years, and the idea that forms basis of this change revolves around the following question that western countries have long struggled to answer: Are nuclear arsenals weapons of last resort or just another way of winning a battle?
Having witnessed the destructive power of nuclear weapons, the U.S. and the Soviet Union in the post-Cold War era perceived nuclear weapons as a “political arsenal” used to inflict another level of damage on adversaries. For this reason, the two superpowers thought of nuclear weapons as a choice of last resort; their nuclear weapons policies were intended to deter an adversary’s use of nuclear weapons through the threat of overwhelming retaliation against the capital city or other critical regions. But rapid advancements in tactical nuclear weapons capabilities and delivery systems have reshaped the way countries look at their nukes, with some countries gradually embracing the idea of treating nuclear weapons like any other weapons used on the battlefield to turn the tide or achieve victory - the emergence of a “nuclear war-fighting posture.” Over the past few decades, the U.S. and other major nuclear powers have constantly swung back and forth between the “last resort” posture and the modified version focused on boosting nuclear war-fighting capabilities to formulate the most appropriate nuclear doctrine for the time.
When North Korea passed its nuclear weapons law in 2013, the primary focus was on threatening “annihilative retaliation” to deter an adversary’s potential use of nuclear weapons. Under the 2013 law, launching nuclear weapons meant risking mutual destruction. The new law, on the other hand, sees nuclear weapons in a different light. As the text that reads “achieving a decisive victory” implies, the country plans to survive or even prevail after using nukes on the battlefield. And codifying its new nuclear posture was the best way to communicate this message to the outside world.
The overall tone of the new law is well reflected in Article 6, which enumerates five conditions under which North would be inclined to use its nuclear weapons. The conditions would be “(1) in case an attack by nuclear weapons or other weapons of mass destruction was launched or drew near is judged, (2) in case a nuclear or non-nuclear attack by hostile forces on the state leadership and the command organization of the state's nuclear forces was launched or drew near is judged, (3) in case a fatal military attack against important strategic objects of the state was launched or drew near is judged, (4) in case the need for operation for preventing the expansion and protraction of a war and taking the initiative in the war in contingency is inevitably raised, and (5) in other case an inevitable situation in which it is compelled to correspond with catastrophic crisis to the existence of the state and safety of the people by only nuclear weapons is created.”
Under the new law, North Korea could launch nuclear strikes in all five circumstances including in the face of conventional attacks. While North Korea has followed in the footsteps of preceding nuclear states by adopting a declaratory policy, the regime’s nuclear posture is an aberration in the sense that it has significantly lowered the threshold for nuclear use in conflicts. North Korea presents its nuclear war-fighting posture in a more extreme form by insinuating that it will not hesitate to use nukes even in conventional wars. Notably, paragraph 1, 2, and 3 of Article 6 legitimize preemptive nuclear strikes if a foreign country poses an imminent threat, which means Pyongyang could preemptively use nuclear weapons based on its arbitrary assessment, even not under military situations. And paragraph 4 and 5 spells out broader conditions for nuclear use, signaling that nuclear weapons could be used in any situation. Extrapolating from the texts of the new legislation, North Korea appears ready to lower the nuclear threshold and keep its nukes on “hair-trigger” alert in order to discourage an adversary from taking a military action in any form.
In some sense, this approach is not new. In the face of a conventionally superior adversary on the other side of the border, countries often rely on a nuclear doctrine which emphasizes using tactical nuclear weapons at the outset of a conflict to repel a superior conventional invasion force, as shown by Pakistan from the 2010s onward and the U.S. and NATO during the Cold War. The idea is to compensate for conventional inferiority through threats of rapid escalation into tactical nuclear weapons use. But while preceding nuclear states developed a minimal safety feature to avoid inadvertent escalation, such as citing an adversary’s large-scale ground invasion as a condition for tactical nuclear weapons use, North Korea might be more tempted to go nuclear. The new law on the DPRK’s nuclear forces policy explicitly signals a significantly lower nuclear threshold and leaves ample room for arbitrary interpretation. From Pyongyang’s standpoint, this offers by far the best way of ensuring maximum deterrence, as sheer uncertainty over what could trigger North Korea’s nuclear use might force the targets (in this case the United States and South Korea) to tread very carefully to avoid escalation.
2. On the Nuclear Command & Control
In theory, the first question, under which conditions would a nuclear state use nuclear weapons, and the second question, how should a nuclear state manage and control its nuclear weapons, are two sides of the same coin. If there is a nuclear state that wants to threaten an opponent with first-use of nuclear weapon, the threats should appear credible in the eyes of the target. Displaying grossly simplified nuclear command and control arrangements or explicitly signaling the possibility of delegating nuclear authorizations into the hands of lower-ranking field commanders in contingency are some of the ways to show that the threats are not a bluff. As for the country that sees its nuclear arsenal as a last resort option, the top leadership should have the unilateral authority to choose to use nuclear weapons in contingency through a prudent process. It all comes down to the issue of nuclear control and command; whatever the purpose is, a nuclear state, once its weapons program grows in both scale and sophistication, will have to establish a clearly-defined command and control structure.
Clearly, nuclear command and control was not Pyongyang’s primary focus around the time when it promulgated the 2013 law. That year, North Korea summarized its nuclear command and control in just one sentence: “The nuclear weapons of the DPRK can only be used by a final order of the Supreme Commander of the Korean People’s Army.” The new law, in contrast, devoted an entire article to describe North Korea’s ‘command and control system governing nuclear forces,’ and using the term “command and control” was a notable development, since the regime had rarely mentioned this word in its official documents. This corroborates the view that North Korea is closely observing the West’s nuclear deterrence theory and related concepts and translating some key words into its own language to spell out how it operates its nuclear weapons.
Paragraph 1 and 2 of Article 3 of the new law says “ the nuclear forces shall obey the monolithic command of the President of the State Affairs” and “the President of the State Affairs shall have all decisive powers concerning nuclear weapons.” It bears noting that the new rule replaces the Supreme Commander of the KPA with the President of the State Affairs as the ultimate decision-maker regarding North Korean nuclear weapons. Since North Korean supreme leaders have always held both titles as well as the title of General Secretary of the Workers’ Party of Korea, nothing has changed in practice. But from an institutional perspective, specifying the head of state as the ultimate decision-maker represents a major shift, because it sends a clear message that it is not the military but the state that makes final decisions on nuclear weapons. It also reveals how the “songun (military-first)” ideology that thrived in the Kim Jong-il era has lost momentum over the years as a result of Kim Jong un giving more power and authority the party and the cabinet rather than to the military.
Moreover, according to paragraph 2, the state nuclear forces command organization will consist of members appointed by the President of the State Affairs to support the President. The purpose is to project the country’s image as a responsible nuclear state with those at the center making prudent decisions on important matters related to nuclear forces. But details are sparse about what the organization would actually do. It remains unclear whether it will act as a collective decision-making body, like the National Command Authority (NCA) in India and Pakistan, or as a communication center as is the case with the U.S. National Military Command Center (NMCC).
Article 3 of the new law stipulates that “in case 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 the operation plan decided in advance.” Article 3 implies that Pyongyang seeks to set up a delegative command structure in parallel with an assertive one mentioned in Article 1 and Article 2. Although seemingly contradictory, this parallel command structure has gained currency among the existing nuclear states, especially those seeking to countervail their relative nuclear inferiority to their potential adversaries. With such command structure, Pyongyang aims to repel a preemptive or decapitation strike by declaring vociferously that it will launch a retaliatory nuclear strike even if an adversary’s massive preemptive nuclear strike destroys its communication organization or leads to the total destruction of North Korea’s leadership. During the Cold War era, the USSR and UK adopted the nuclear doctrine engineered to dispatch letters of last resort to nuclear submarines for nuclear retaliation in case of the total collapse of their leadership on the mainland. This protocol is what’s known as a “Dead Hand,” as the system allows nuclear retaliation even in the event of the death or incapacitation of the leaders who possess the authority to press the nuclear button.
It is hard to say that what’s spelled out in Article 1 and Article 2 of the new law collides with the conditions articulated in Article 3 as they seemingly connote. It would be more accurate to say that Article 1 and Article 2 lay down the fundamental principle of establishing an assertive command structure while Article 3 is set up to map out measures to flexibly apply what’s addressed in Article 1 and Article 2 to minimize the risk of an adversary’s decapitation strike prompted by the principle spelled out in the preceding articles. Since the dawn of the nuclear age, the U.S. has left untouched the president’s sole authority to authorize the use of nuclear weapons. Although the president delegated the authority to release tactical nuclear weapons to a field commander during the Cold War era, that was merely the flexible delegation of the president’s authority to the commander in its legal sense. Article 3 Paragraph 3 of the new law that reads “according to the operation plan decided in advance” about launching an automatic nuclear strike can be interpreted in a similar context, meaning that Kim Jong Un’s monolithic command of the state’s nuclear forces shall remain untouched while the new law shall leave room for the delegation of his authority or a pre-authorized order with the addition of sub-clauses.
As mentioned above, if Pyongyang seeks to adopt the doctrine that aims to gain the upper hand by using tactical nuclear weapons first in conventional warfare, it will run the risk of facing a decapitation or disarming strike from the U.S. whose nuclear capabilities are overwhelming. In case Pyongyang decides to use nuclear weapons, even on a limited scale, Washington will likely consider options for taking out Pyongyang’s leadership or crippling North Korea’s nuclear capabilities altogether. And if the chances of North Korea’s ICBM surviving U.S. missile defenses are deemed serious by Washington, this could impose constraints on Washington’s options in wiping out North Korea’s leadership or nuclear capabilities. However, Washington will unlikely view in the near future that Pyongyang has passed a threshold of assured nuclear retaliation capability.
Therefore, there is no adequate measure for Pyongyang to repel Washington’s massive nuclear retaliation for now. And without that card, Pyongyang’s calculations aimed at gaining the upper hand in conventional warfare with first-use threat of nuclear weapon will likely fall through in terms of military utilities. Pyongyang’s reference to a so-called “automatic nuclear strike” appears to come out of its desperate countermeasures needed to stave off Washington’s large-scale nuclear retaliation until the Kim regime upgrades its assured retaliation capability over a certain level with the development of MIRV-enabled ICBMs or acquisition of reliable SLBM capabilities. Pyongyang seeks to avert the complete removal of its political and military leadership or a decapitation strike against Kim Jong Un.
Pyongyang’s plan to establish the state nuclear forces command organization mentioned above can be understood in the same context. Some preceding countries like India and Pakistan have reiterated the need to set up a command organization separate from the military leadership. This aims to win international acceptance of the reliability and stability of their decision to unleash nuclear weapons by highlighting a transparent collective decision-making process within the political leadership. With a slight twist, Pyongyang’s mention of establishing the state nuclear forces command organization seems to be intended to insinuate that it can launch a nuclear strike even if Kim Jong Un loses contact or becomes incapacitated in the course of the war as the command organization is designed to assist the collective decision-making process. In other words, it is Pyongyang’s desperate attempt to lead Washington to perceive that nuclear or non-nuclear attacks against its leadership including Kim Jong Un will be unsuccessful and trigger massive nuclear retaliation from the North.
In this regard, Pyongyang will unlikely unveil the detailed structure of the state nuclear forces command organization. However, considering North Korea’s power structure and the recent party-government-military relations, members of the Presidium of the Political Bureau of the Workers’ Party of Korea (WPK) and the Central Military Commission (CMC) of the Central Committee of the WPK will likely fill most of the key posts in the organization. Or, members of the state nuclear forces command organization, the Presidium, and the CMC could be virtually the same. At the 8th Congress of the WPK held in January 2021, Pyongyang announced its decision to ease requirements for calling a meeting of the Party’s committees and adjust the quorum requirements flexibly by agenda. This is also Pyongyang’s devolution of nuclear command and control in times of crisis and Kim Jong Un’s incapacitation.
II. The Similarities with Russia’s 2020 Basic Principles of State Policy on Nuclear Deterrence
Looking at the bigger picture, another conspicuous feature that deserves attention is that the structure, sentences, and wording used in North Korea’s new law on the nuclear forces policy bear resemblance to those used in Russia’s official nuclear policy document. Since the end of the Cold War, the Russian government has formulated five documents on its nuclear doctrine. The latest version released in June 2020, “The Basic Principles of State Policy of the Russian Federation on Nuclear Deterrence,” appears to be the most frequently revisited reference document for Pyongyang in drafting and promulgating the new law.
Most nuclear-armed states place limits on the level of information disclosed on the detailed conditions for using nuclear weapons or the structure of nuclear command and control. Only a handful of nuclear states including the U.S. and Russia, which possess overwhelming nuclear superiority, have sought to beef up nuclear deterrence by adopting a declaratory policy specifying their nuclear capabilities and conditions in which they would launch a nuclear strike. And more recently, drawing on a policy of ambiguity in formulating their nuclear posture is gaining currency among major nuclear powers. The nuclear states with relatively small nuclear capacity, especially those with inferior nuclear capacity compared to their potential adversaries, have primarily relied on fomenting ambiguity about their nuclear posture and policies to maximize deterrence.
In this sense, Pyongyang’s new law on the state’s nuclear forces policy is quite exceptional as North Korea, which has just passed the incipient stage of its nuclear weapons program, is following Russia’s suit in declaring its specific nuclear posture. To elaborate, Pyongyang set its nuclear posture into legislation with decrees and the president’s executive orders as Russia’s Basic Principles on Nuclear Deterrence and the format of the two documents are similar in terms of the number of pages and key provisions. And the phrase “main force of the state defence which safeguards the sovereignty and territorial integrity of the country and the lives and safety of the people” in Article 1 of the new law is directly taken from Russia’s “Basic Principles.”
And the two nuclear documents are markedly similar in content. Article 3 Paragraph 19 of Russia’s 2020 nuclear document defines the conditions specifying the possibility of nuclear weapons use by the Russian Federation as follows: a) arrival of reliable data on a launch of ballistic missiles attacking the territory of the Russian Federation and/or its allies; b) use of nuclear weapons or other types of weapons of mass destruction by an adversary against the Russian Federation and/or its allies; c) attack by an adversary against critical governmental or military sites of the Russian Federation, disruption of which would undermine nuclear forces response actions; d) aggression against the Russian Federation with the use of conventional weapons when the very existence of the state is in jeopardy. In addition, Article 1 Paragraph 4 stipulates that this Policy provides for the prevention of an escalation of military actions and their termination on conditions that are acceptable for the Russian Federation and/or its allies. And Article 2 Paragraph 15 stipulates that the principles of nuclear deterrence shall seek to maintain permanent readiness of a designated fraction of nuclear deterrence forces and means for combat use. As noted above, it is inferred from the two documents that Pyongyang and the Kremlin seek to show off their intentions to use nuclear weapon initially in conventional warfare, adopt a two-pronged nuclear doctrine designed to employ nuclear weapons for deterrence and war-fighting purposes, and lower the threshold for using nuclear weapons to offset conventional inferiority.
Russia’s 2020 nuclear document fleshed out the Kremlin’s escalate to de-escalate doctrine designed to deter or back down militaryaction from the U.S. and NATO by threatening to employ tactical nuclear weapons that could culminate in nuclear escalation. The 2020 document proved the existence of Russia’s nuclear doctrine that was questioned by many in the U.S. military and academia before its release. It is generally viewed that Russia’s invasion of Ukraine corroborated the existence of the escalate to de-escalate doctrine with the Kremlin having reiterated the possibility of employing nuclear weapons since the war broke out early this year. Of course, it would be an overstatement to say that the U.S. and NATO have refrained from military intervention in Ukraine because of Russia’s nuclear doctrine. But it is reasonable to assume that Pyongyang rushed to promulgate the new law to deter U.S. extended deterrence and the wartime reinforcement of its troopby creating a similar environment based on its own calculations that the Kremlin’s nuclear doctrine effectively deterred U.S. and NATO intervention in Ukraine.
III. Implications: Discrepancies between Pyongyang’s Nuclear Doctrine and Actual Capabilities
To achieve that goal, Pyongyang would need an array of enabling hardware and software capabilities. Low-yield nuclear weapons, or tactical nuclear weapons constitute hardware capabilities while its nuclear doctrine, declarative policy, and establishment of the nuclear command, control, and posture fall under the category of software capabilities. Since early 2021, Pyongyang has ramped up efforts to advance the date of completing this two-pronged strategy by conducting a series of missile tests and urging forward the seventh nuclear test to develop tactical nuclear warheads. However, with the seventh nuclear test postponed indefinitely due to international and domestic situations, Pyongyang switched to speed up the development of its software capabilities, focusing on bolstering preparedness in early 2022. And this is how Pyongyang came to reiterate its nuclear policy toward advancing nuclear war-fighting capabilities, unveil its new tactical guided nuclear weapons, and promulgate the new law on the state's nuclear forces policy.
It is no surprise that Pyongyang’s perception and way of thinking outlined in the new law are markedly different from what’s stipulated in the 2013 law. It is assumed that formulating and implementing an institutional framework to operate its nuclear weapons program in a more sophisticated fashion has topped Pyongyang’s priority list over the past years as the regime has made rapid progress in advancing its nuclear war-fighting capabilities and diversifying delivery vehicles. In other words, significant strides made in advancing hardware capabilities resulted in propelling the update of its software capabilities.
However, there is an intrinsic limitation in Pyongyang’s calculations created to follow the Kremlin’s suit in pursuing nuclear ambitions. The Kremlin’s “escalate to de-escalate” doctrine has gained ground because Russia ranks alongside the U.S. in terms of the nuclear and missile capabilities that could annihilate each other through mutually assured destruction (MAD). The fundamental idea behind the doctrine is that Washington has no choice but to take the Kremlin’s threat to opt for nuclear escalation seriously as a full-scale of nuclear weapons spinning out of control would surely culminate in the complete annihilation of the two sides. But in the case of North Korea, Washington views that its strike capabilities against the U.S. fall short of even Assured Retaliation, let alone Assured Destruction. And North Korea’s attempt to follow Russia’s suit by threatening to adopt first-use of nuclear weapon will unlikely deter Washington from implementing extended deterrence or nuclear umbrella. Whatever Pyongyang factors into its strategic calculations, Washington’s current perception that Pyongyang has not achieved Assured Retaliation will likely prevail for a considerable period of time.
With North Korea’s nuclear weapons program fraught with problems stemming from the discrepancies between its current nuclear and missile capabilities and the ambitions fleshed out in its official nuclear doctrine, Pyongyang is relentlessly exploring shrewd ways to create an atypically structured, but effective mutual nuclear deterrence with level-headed acumen to deter Washington fr
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