Charlton J. Meginley† | 4 Regent J. Glob. Just. & Pub. Pol. 21

North Korea has long been an international concern, not only for the United States, but also for its allies in the Pacific region.1 These concerns have been elevated in recent years with North Korea’s intentions to become a nuclear power and subsequent rounds of testing.2 Most of the recent international focus has been spent attempting to curb North Korea’s nuclear ambitions, yet, there has been little response addressing its human rights issues and the generations-long atrocities against the North Korean people by its rulers. 3 The extent of the atrocities were exposed in 2014, when the United Nations Human Rights Council (UNHRC) released a report outlining the lack of human rights in North Korea and noting that “crimes against humanity” (CAH) had been committed.4 The same evidence indicates North Korean leadership has also committed genocidal and democidal acts. Democide, a fairly new term, is “[t]he murder of any person or people by a government, including genocide, politicide, and mass murder.” 5 Given the historical and current treatment of North Korean citizens by its government, this phrase would adequately define those atrocities. 6 Yet, does it matter if North Korean leadership is committing genocide, democide, or “crimes against humanity,” and if it does, what should be the international response under current international law? No matter what the international response, there are no good options. The international community could choose to do nothing and maintain the status quo, or it could rely on international law to properly address the crimes against humanity (CAH) committed by North Korean leadership. The international community could also use military action to end the crimes against humanity. All options have serious flaws.

The first two parts of this Article will present some brief background information about North Korea, some of the findings of the UNHRC’s Commission of inquiry on human rights in the Democratic People’s Republic of Korea (“the Commission”), how those findings fit into the definitions of genocide, democide, and CAH, and why North Korean leadership should be charged with CAH. However, charging is only part of the equation. The third part of this Article will explore why relying on international law to end the North Korean CAH, particularly relying on the International Criminal Court (ICC) and Universal Jurisdiction (UJ), are not viable options. Finally, this Article will discuss the propriety of military action: why state sovereignty is not the issue it used to be, the impact the “Responsibility to Protect” will have on state sovereignty, and how inaction by the United Nations (UN) Security Council to address CAH around the world has weakened its legitimacy. Ultimately, the facts presented will show that rapidly changing international law has eroded the notion of the sanctity of state sovereignty, and because the United Nations Security Council (UNSC) has failed to protect the citizens of North Korea from its own leadership committing crimes against humanity, international military action is the only option to end the long-standing atrocities.

I. NORTH KOREA AND THE COMMISSION’S REPORT

The most reclusive, secretive country on Earth, North Korea is a mystery to most people.7 This can most likely be attributed to the policy established by the country’s first leader, Kim il-Sung, who “created the country’s policy of juche or self-reliance,” resulting in North Korea cutting itself off from the rest of the world politically, economically, and relying on its own military for protection.8 Yet, juche is now used as an “ideological weapon to justify its dictatorship and hereditary power succession plan . . . a means to justify its closed-door system externally.”9 For nearly 70 years, its Supreme Leaders, Kim il-Sung, his son, Kim Jung-il, and now Kim Jung Un, Kim il-Sung’s grandson,10 have abused, manipulated, and suppressed the human rights of the North Korean people under the principle of juche.11 Little good comes from its political situation, and for the most part, the world only hears about North Korea when it is threatening to obtain and/or use nuclear weapons.

It is estimated that North Korea has a population of just over 25 million people.12 Despite spending an estimated $1.3 billion on its missile program in 2012,13 North Korea has one of the world’s least open economies, with a gross domestic product of $1800 per capita, and has an estimated 25.6% unemployment rate.14 North Korea spends about one third of its income on military spending and has 1.2 million military members, twice as many as South Korea.15 A portion of North Korea’s citizens do not even have electricity in their homes, and those that do have electricity only receive it “a few hours per day.”16 There is no independent media, and the state relies on international aid to feed its population.17 The UN World Food Programme (WFP) estimates that more than 70% of the North Korean population is food insecure, with only about a fifth of its land being arable, and that children in WFP nurseries showed a 25% stunting prevalence due to the lack of food consumption.18 “In 2015, the U.N. [WFP] asked foreign donors for . . . $111 million in contributions.”19 However, donors are reluctant to help North Korea because of restrictions on “humanitarian workers and international fears over its nuclear ambitions.”20 There is no religious freedom in North Korea, nor is there an independent judicial system.21 North Korea is considered to be the third most corrupt country on earth.22

† Charlton J. Meginley is a Judge Advocate for the United States Air Force. He received his undergraduate degree in Criminal Justice from the University of Louisiana at Monroe, and his Juris Doctor from Louisiana State University. He currently serves as the Chief Senior Defense Counsel for the Air Force’s Central Circuit. Please note: the opinions, conclusions, and recommendations expressed or implied within this Article are solely those of the author and do not necessarily represent the views of the United States Air Force, the Department of Defense, or any other US government agency.
1 See Rex Tillerson, Secretary of State of the U.S., Remarks at the United Nations Security Council Ministerial Session on D.P.R.K., (Apr. 28, 2017) (transcript available at https://www.state.gov/secretary/remarks/2017/04/270544.html).
2 North Korea’s Push over the Years to Become a Nuclear Power, L.A. T IMES (Apr. 14, 2017), http://www.latimes.com/world/la-fg-north-korea-nuclear-timeline-20170414-htmlstory.html.
3 Olivia Enos, What the United States Can Do to Address North Korea’s Human Rights Crisis, THE FEDERALIST (Apr. 17, 2017), http://thefederalist.com/2017/04/17/united-states-can-address-north-koreas-human-rights-crisis/.
4 See U.N. Human Rights Council on Its Twenty-Fifth Session, Report of the Detailed Findings of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, U.N. Doc. A/HRC/25/CRP.1 (2014) [hereinafter U.N. Human Rights Council].
5 R.J. RUMMEL, D EATH BY G OVERNMENT Ch. 2 (Transaction Publishers, 1994).
6 See id.; see also Yael Stein and Elihu D. Ritcher, Suspected Mass Killings, GENOCIDE PREVENTION NOW, www.genocidepreventionnow.org (last visited Oct. 4, 2017).
7 See Charlotte Alfred, How North Korea Became So Isolated, HUFF POST (Oct. 17, 2014, 5:42 PM ), http://www.huffingtonpost.com/2014/10/17/north-korea-history-isolation_n_5991000.html.
8 15 Fascinating Facts about Mysterious North Korea, USA TODAY (July 17, 2017 10:17 AM ), https://www.usatoday.com/story/news/world/2017/03/17/fascinating-facts-north-korea/99296938/.
9 See Columbia University, Juche Ideology, http://www2.law.columbia.edu/course_00S_L9436_001-North%20Korea%20materials/3.html (last visited Sept. 17, 2017); Dae-Kyu Yoon, The Constitution of North Korea: Its Changes and Implications, 27 FORDHAM INT’L L. J. 1289, 1291 (2004).
10 See Central Intelligence Agency, The World Factbook: North Korea, https://www.cia.gov/library/publications/the-world-factbook/geos/kn.html (last updated Sept. 6, 2017).
11 See 15 Fascinating Facts about Mysterious North Korea, supra note 8.
12 Central Intelligence Agency, supra note 10.
13 Ramy Inocencio, North Korea’s Rocket Launches Cost $1.3 Billion, CNN (Dec. 12, 2012), http://www.cnn.com/2012/12/12/business/north-korea-rocket-cost/index.html.
14 Central Intelligence Agency, supra note 10. See generally North Korea’s economic growth climbs to 17-year high in 2016 despite sanctions targeting nuclear program, CNBC (July 20, 2017 11:26 PM), https://www.cnbc.com/2017/07/20/north-koreas-economic-growth-climbs-to-17-year-high-in-2016-despite-sanctions-targeting-nuclear-program.html (noting that the North Korean economy is growing, even in light of the sanctions).
15 20 Facts about North Korea, USA TODAY (Apr. 13, 2013), http://www.usatoday.com/story/news/world/2013/04/13/north-korea-factoids/2078831/.
16 See id.; Rick Newman, Here’s How Lousy Life is in North Korea, U.S. NEWS (Apr. 12, 2013), https://www.usnews.com/news/blogs/rick-newman/2013/04/12/heres-how-lousy-life-is-in-north-korea.
17 20 Facts about North Korea, supra note 15.
18 Democratic People’s Republic of Korea, WORLD FOOD PROGRAMME, http://www.wfp.org/countries/korea-democratic-peoples-republic (last visited Sept. 18, 2017); see also DPRK Country Brief, WORLD FOOD PROGRAMME, http://documents.wfp.org/stellent/groups/public/documents/ep/wfp276263.pdf?_ga=2.143296828.840591394.1505785676-1256538179.1505785676 (last visited Sept. 18, 2017). According to the WFP, “81 percent of DPRK’s population do not have acceptable diversity in their diet. People consume 25 percent less protein and 30 percent less fat than required for a healthy life, according to international standards. One in three children under five years of age, and almost half of the children between 12 and 23 months of age, are anemic.” Id.
19 Olivia Enos & Bruce Klinger, Next Steps for Human Rights in North Korea, HERITAGE FOUND. (Jan. 12, 2016), http://www.heritage.org/asia/report/next-steps-human-rights-north-korea.
20 Magdalena Mis, U.N. Calls for $111 Million for Crucial Aid for North Korea, REUTERS (Apr. 9, 2015), http://www.reuters.com/article/us-northkorea-aid-un-idUSKBN0N01YK20150409.
21 20 Facts about North Korea, supra note 15.
22 See Corruption Perceptions Index 2016, TRANSPARENCY INT’L, https://www.transparency.org/news/feature/corruption_perceptions_index_2016 (last visited Sept. 20, 2017) (noting Somalia as the most corrupt nation, followed by South Sudan); Aza Wee Sile, These are the World’s Most Corrupt Countries, CNBC (Jan. 24, 2017, 11:07 PM ), https://www.cnbc.com/2017/01/24/these-are-the-worlds-most-corrupt-countries.html.