North Korean soldiers in Russia: In vio­la­tion of inter­na­tional law, parti­ci­pa­tion in the con­f­lict ques­tionable

Hier geht es zur deutschen Version des Artikels.

North Korea is said to have deployed around 3,000 soldiers to Russia; according to media reports, the number could rise to up to 12,000. The Defence Intelligence of Ukraine said the troops already in Russia are currently receiving military training. It is not only the intelligence services of South Korea and Ukraine who fear that these soldiers will soon be deployed against Ukraine. In addition to NATO Secretary General Mark Rutte and representatives of the EU Commission, the Federal Foreign Office is also talking about an escalation of the conflict. If North Korean troops were to support the Russian war of aggression against Ukraine, this would, in the view of the ministry, constitute a violation of international law.

This assessment is certainly correct if the North Korean soldiers were to fight against Ukraine under their own flag. However, the participation of North Korean troops could also be far more unofficial: According to reports from the South Korean National Intelligence Service, the North Korean soldiers deployed in Russia have been given Russian military uniforms and forged identification documents. This could ensure that the troops would no longer be attributable to North Korea, but to Russia.

Participation in one's own name is participation

The fact that Russian aggression is illegal has not changed in recent years. Any state that deploys its own troops alongside Russian troops is thus violating the prohibition on the use of force laid down in the United Nations Charter just as much as Russia itself. As a result, Ukraine could also use military force against North Korea in self-defence.

This would even apply if the North Korean troops never set foot on Ukrainian soil. Even if they only fought in the Russian territories held by Ukraine in the Kursk region, this would constitute a participation in the international armed conflict between Russia and Ukraine. Ukraine's right of self-defence does not stop at the border, but also allows it to fight the aggressor Russia on its territory. Although, in a military and operational perspective, Russia is defending the Kursk region , this is, from a legal point of view, not a case of self-defence under Article 51 of the United Nations Charter. Consequently, North Korea cannot participate in such a defence. Instead, the mere defence of the Kursk region would, under international law, also be considered part of the Russian war of aggression and North Korea would therefore be a party to the conflict.

Military affiliation justifies attribution under international law

Legally, it would be more complicated if North Korea's troops were not deployed in the name of Kim Jong Un, but under Russian names and in the name of Russia. The argument that they are still North Korean soldiers in Russian uniforms and that national insignia and ID cards are therefore irrelevant is not enough.

It is part of a state's sovereignty to determine who is a member of its own armed forces. Neither does international law prohibit the inclusion of foreigners in one's own military, nor the integration of entire units in one's own structures. A person who has been given a Russian uniform, a Russian military ID card and a Russian commander by the Russian state is a Russian soldier - regardless of the army and nationality in which they were previously trained.

For the same reason, the foreign volunteers of the International Legion of Defense of Ukraine are regular members of the Ukrainian army and not mercenaries or other illegal fighters. Their actions - by integration into the armed forces - are attributable to the Ukrainian state and not to their countries of origin.

Organs placed at the disposal of another State

Unlike the members of the Ukrainian International Legion, the North Korean troops are not made up of volunteers who are fighting for Russia of their own accord. Instead, they are likely to act under orders. Nevertheless, their participation in the hostilities does not necessarily mean that they are attributable to North Korea. Should the deployed soldiers actually be re-dressed and detached from the North Korean chain of command and placed under the command of Russian units, they would probably be placed at the disposal of Russia. Under international law, it would then not be the former state that would be responsible, but the state at whose disposal the organ was placed.

A corresponding provision can be found in Art. 6 of the Draft Articles on State Responsibility of the International Law Commission, which reflects customary international law. A state that relinquishes control over its own state organs and places them at the disposal of another state thereby evades its responsibility under international law. Contrary to other statements, international law does not distinguish between the supply of weapons and the placing of persons at the disposal of another state if the receiving state can dispose of them entirely at its own discretion. The supply of weapons alone does not make a state a party to the conflict. Consequently, a state that completely abandons its own personnel also remains outside the conflict.

It is therefore quite possible that North Korea does not participate in the conflict under international law. However, this presupposes that the North Korean soldiers are actually removed from the North Korean command hierarchy. This is already doubtful due to the almost religious cult of personality surrounding dictator Kim Jong Un. Ultimately, however, this is a factual question, not a legal one.

North Korea could remain uninvolved, but by no means neutral

However, support below the threshold of the use of force can also violate international law.

Specifically, the law of neutrality as a part of the law of armed conflict prohibits all states that do not participate in the conflict from assisting one of the parties to the conflict. Under the terms “benevolent” or “qualified neutrality”, it is now argued that the victim of aggression may be supported. However, supporting the aggressor still violates the duty of neutrality.

By sending troops to support the aggressor Russia, North Korea would in any case be violating its obligations under the law of neutrality. As a legal consequence, Ukraine could, on the one hand, demand that North Korea cease and desist and, on the other hand, use countermeasures and sanctions. Ukraine would also be allowed to defend itself against North Korean troops on Russian territory. However, whether Ukraine or its allies would be allowed to take military action against North Korea outside of Ukraine and Russia seems rather questionable. But neither Ukraine nor anyone else is likely to intend an attack on North Korea anyway.

Follow-up problems with prisoners of war

Follow-up problems would arise if the soldiers sent by North Korea were to become prisoners of war in Ukraine. The treatment of prisoners of war is governed by the Third Geneva Convention of 1949. Its provisions are primarily directed at the detaining power and the “power on which the prisoners of war depend”, i.e., “their” party to the conflict. However, some provisions also refer to the “home country” of the prisoners of war, i.e., the state of which they are nationals.

Ukraine could argue that - despite Russian passports - this is North Korea. This is because a state (in this case Russia) cannot simply demand that another state (in this case Ukraine) accept any naturalization. According to the criteria developed by the International Court of Justice (ICJ) in 1955 in the Nottebohm case, a person who has received a passport from another state must only be treated as a national of that state if there is a ‘genuine link’ between that state and its (alleged) national. In principle, such a link can indeed arise through service in the armed forces of that state. In quite a few countries in the world, one path to citizenship leads through the military. But to demand the obligation of other states to accept citizenship simply by enlisting in the army is circular..

Ukraine, whose population in the occupied territories is repeatedly forced to accept Russian citizenship, may well be tempted to interpret the Nottebohm criterion narrowly. This would allow it to consider North Korean prisoners of war as Russian fighters, but not as Russian citizens. They would still have to be treated as prisoners of war. But in terms of returning home, Kim Jong Un sends his troops to an uncertain fate.

This text is a translated and slightly revised version of the article published in German on 24 October 2024.

Simon Gauseweg is a research assistant at the European University Viadrina Frankfurt (Oder) at the Chair of Public Law, in particular Public International Law, European Law and Foreign Constitutional Law.