Treat nuclear threats as a criminal act Show of strength: It is only a matter of time before North Korea's missiles go nuclear. North Korea's threat to launch a pre-emptive nuclear strike on the US need not be taken seriously - yet. But it has the bomb (12, by reliable estimate) and ballistic missiles, and it will take only a few years to design a nuclear warhead and a re-entry heat shield for the drop on Hollywood. By then Iran will have the bomb, as will Saudi Arabia (bought off-the-peg from Pakistan), and the Muslim Brotherhood in Egypt will be well advanced in obtaining the nuclear weapons its leaders have always wanted. We will, by this time, feel very nostalgic for the good old days of the Cold War. So what do we do, other than wait for when the US President decides to carpet-bomb Pyongyang? What is clear is that more sanctions will not deter North Korea. North Korea's threats have served to expose the fatal flaw in the nuclear non-proliferation treaty. This was negotiated after the Cuban missile crisis with the object of limiting nuclear weapons to five great, or at least sensible, superpowers which would, one fine day, agree on reducing their arsenals to zero. North Korea reluctantly joined the treaty in 1985, but withdrew in 2003. The United Nations Security Council should never have allowed this - the treaty does not permit withdrawal unless membership jeopardises a party's "supreme interests." North Korea had no supreme interests at stake - it just wanted to build bombs without interference by the International Atomic Energy Agency. It did so, testing its first bomb on US Independence Day (July 4), 2006. What is clear is that more sanctions will not deter North Korea from proceeding towards delivering upon - or equipping itself to deliver upon - its threats to drop nuclear bombs on South Korea and the US. It has suffered increased sanctions after every provocative act. There is ample evidence of North Korea's contempt for the lives of others - in 2007 it was caught building a secret nuclear reactor for the Assad regime in the Syrian desert, and in 2010 one of its submarines torpedoed a South Korean naval vessel, with the loss of 46 young lives. It has 17 gulags (full of people jailed for not dusting the pictures of the Great Leader they must display in their homes, or for whistling South Korean pop songs). But US bombing of its cities or its nuclear facilities at Yongbyon, even with China's acquiescence, would result in bloody reprisal attacks on South Korea, and possibly on America's nearby allies, such as Taiwan, the Philippines or Japan. Given the futility of heavier sanctions and the pointlessness of more six-party talks, there are two ways the Security Council can proceed. One is emollient: to give North Korea what, behind all its bluster, it really wants, namely readmission to the treaty as the sixth (or seventh, behind India) nuclear weapon power. That has already been rejected by the US, and would be resisted by other states as a reward for cheating. It may, however, be the only way, short of military force, to impose any restraint on this impossible state. Recognition as a nuclear power is, after all, recognition of the obvious and re-admission to the treaty with that status would at least impose upon it an eventual duty to disarm. There is another way forward, as yet unmentioned, which should be taken by the Security Council in any event. That is to treat North Korea's threat of nuclear war as a crime against humanity, and to refer its behaviour to the International Criminal Court prosecutor for investigation and potential indictment of Kim Jong-un and his generals. Using or threatening to use nuclear weapons was declared a crime against humanity by the UN in 1984. Dropping or threatening to drop a nuclear weapon is illegal because fallout does not discriminate between military targets and civilians, because the consequences are beyond human control, because the suffering it causes is immense and unnecessary - as the World Court has said, "the destructive power of nuclear weapons cannot be contained in either space or time." To put it more bluntly, it breaches the two most fundamental human rights: the right not to have life taken arbitrarily and the right not to be subjected to torture, in this case by ionising radiation. The International Criminal Court at the Hague has for the past decade been cutting its teeth on issues of no great legal pith - atrocities, certainly, but essentially murders and incitements to murder. Its indictments have been confined to African politicians and warlords. An international court should be dealing with international criminals. Those who unlawfully make, manufacture, or threaten to use nuclear weapons are the most dangerous international criminals of all. Geoffrey Robertson, QC, is author of Mullahs Without Mercy: Human Rights and Nuclear Weapons (Random House).