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.

INTRODUCTION

The purpose of this Note is to highlight the importance of state sovereignty in the midst of legal wars being waged by non-state actors. This Note begins by briefly explaining the concept of sovereignty as it relates to the maintenance of a legitimate global political system that respects the cultural differences and internal affairs of all states. Next, this Note provides brief explanations of universal (and extraterritorial) jurisdiction and the use of law to fight political battles with opponents, which this Note refers to as “Lawfare.” Finally, this Note lists the three gravest dangers that could result in the foreseeable future if the use of universal jurisdiction and Lawfare continues through nongovernmental organization (“NGO”) and non-state actor manipulation of the international legal system—namely the International Criminal Court (“ICC”). In order to give current relevance to the suppositions posited, this Note uses the sovereign State of Israel as the prototype to clearly display the use of such legal avenues, and how that poses a serious danger for other sovereign states. Although this Note does not devote much of its discussion to determining the morality of either side in the political issues surrounding Israel, it is important for the reader to understand the factual implications of Israel’s loss of sovereign decision-making. To begin the discussion, a brief overview of Israel’s modern history and some of the current issues causing conflict in the region is presented.

In 1933, the Conference of American States drafted the Montevideo Convention of the Rights and Duties of States that broadly listed the elements required for statehood recognition: a permanent population, a defined territory, a government, and the capacity to conduct international relations.3 Although methods of obtaining official state recognition are somewhat contested, it is widely accepted that once a state obtains the four elements above and is recognized by other states, then that state begins to enjoy the rights of political autonomy and sovereignty—the ability to determine internal affairs without fear that outside forces will interfere.4 That is, state sovereignty inherently resides with “the people [of that state] and is exercised through representative bodies . . . . [It] is essentially the power to make laws . . . .[T]o have sovereign power is to be beyond the power of others to interfere.”5 Again, under international law, “[e]ven where individual [and civilian] rights are concerned . . . states are responsible for respecting, protecting, and fulfilling the rights of their citizens, and if they don’t, they are answerable as states.” 6

Unlike legitimate states, which automatically enjoy rights and obligations, international organizations, individuals, NGOs, and others derive their rights and duties in international law directly from different instruments, such as an organizational document or charter.7 After World War II, the United Nations (the “UN”), through its member states, has continued to develop international law, determining the rights and obligations of the “state” (such as the duty to protect civilians during times of war)8 in order to prevent the type of conflicts seen in World War I and World War II, despite its heavy emphasis on maintaining state sovereignty.9 Recently, however, the laws prohibiting state overreach and aggression have failed to do the same with respect to the rising influence of NGOs and non-state actors who use the technological advancements of twentieth century communication to bring political differences with sovereign states to the forefront of international legal discourse.10 Moreover, although most states have a national court system and de facto jurisdiction to try its own nationals, NGOs have championed the concept of “universal jurisdiction” in efforts to prosecute state officials with whom NGO officers and affiliates disagree.11 States, which are obligated to pursue legal avenues to resolve disputes, recently have begun to use the ability of NGOs to bring claims in international courts as a method of committing warfare of a political and legal nature (i.e., Lawfare) against their political adversaries.12 To begin this discussion, it is important to retrace the historical roots of Israel and its modern-day statehood.

I. MODERN HISTORY OF ISRAEL

On July 24, 1922, the Council of the League of Nations passed the Mandate of Palestine (the “Mandate”), which codified the international community’s stance on the future of Palestine.13 The Mandate stated that Britain and the allied powers would be responsible for “the establishment in Palestine of a national home for the Jewish people . . . [and] that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine.”14 In its twenty-eight articles, the Mandate went on to list the steps that would be taken while Britain (the “Mandatory” or official state authority over Palestine) controlled the land.15 Among these provisions the most important was:

The purpose of the Mandate was to ensure respect for all people living in Palestine regardless of religion, race, or nationality. 17 It further sought to create a single government in Palestine (referred to as “the Government of Palestine”) that would continue the maintenance of the communities established in Palestine once the Mandate expired and Britain relinquished control.18 The Mandate, therefore, sought to ensure that a single government for the entire area was created that would respect the rights of all peoples living in the territory, and would include a “national home for the Jewish people.”19 Once the land was turned over to a legitimate governing authority, it would be recognized as the representative government of the land of Palestine.20 Shortly thereafter, the Montevideo Convention established that a representative government was one of the four elements necessary in order for the recognition of legitimate “statehood” under international law.21

† B.A. 2012, Georgia State University; J.D. 2015, Regent University School of Law.
1 HENRY KISSINGER , DOES AMERICA NEED A FOREIGN P OLICY? 275 (2001).
2 EDMUND BURKE , THE BEST OF BURKE 363 (Peter J. Stanlis ed., 1963).
3 Montevideo Convention on the Rights and Duties of States art. 1, Dec. 26, 1933, 49 Stat. 30971; 165 L.N.T.S. 19 [hereinafter Montevideo Convention].
4 See Oppenheim’s International Law (Robert Jennings & Arthur Watts eds., Thomson Reuters/Foundation Press 2010) in THE INTERNATIONAL LEGAL SYSTEM 208, 208–209 (Robert C. Clark et al eds., 6th ed. 2010) [hereinafter INTERNATIONAL LEGAL SYSTEM]; see also Aaron Kreuter, Note, Self-Determination, Sovereignty, and the Failure of States: Somaliland and the Case for Justified Secession, 19 M INN. J. INT’ L L. 363, 365–66 (2010).
5 Sovereignty, CORNELL U.: LEGAL INFO. INST., https://www.law.cornell.edu/wex/sovereignty (last visited Mar. 25, 2016).
6 INTERNATIONAL LEGAL SYSTEM, supra note 4, at 500.
7 See Grant L. Willis, Security Council Targeted Sanctions, Due Process and the 1267 Ombudsperson, 42 GEO. J. INT’L L. 673, 706 (2011).
8 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts art. 13, adopted June 8, 1977, 1125 U.N.T.S. 609, 1991 A.T.S. 29, 16 ILM 1391 (entered into force Dec. 7, 1978)[hereinafter Protocol II]. Protocol II also contains a provision related to state sovereignty. Id. at art. 3 (demonstrating that the Geneva Convention drafters and state representatives feared that sovereignty of nations might be violated by allowing a legal justification for intervention in matters that are internal matters of a sovereign state).
9 See Press Release, General Assembly, Lessons of Second World War Must Continue to Guide United Nations Work, General Assembly Told During Meeting Marking Seventieth Anniversary, U.N. Press Release GA/11641 (May 5, 2015),
http://www.un.org/press/en/2015/ga11641.doc.htm (explaining that the purpose of the United Nations is to prevent the scourge of war for future generations); Press Release, General Assembly, Questions Related to State Sovereignty and Role of Security Council in International Peacekeeping Addressed During Assembly Discussion, U.N. Press GA/9629 (Oct. 7, 1999), http://www.un.org/press/en/1999/19991007.ga9629.doc.html (explaining that respect for state sovereignty is a building block of the United Nations); The Foundation of International Human Rights Law, UNITED NATIONS, http://www.un.org/en/sections/universal-declaration/foundation-international-human-rights-law/index.html (last visited Mar. 25, 2016).
10 See, e.g., KISSINGER , supra note 1, at 280–81 (noting that Amnesty International supported a complaint against certain NATO officials for actions in the Balkans); see also Anne Aly, The Media and International Relations, in ENCOUNTERS WITH WORLD AFFAIRS: AN INTRODUCTION TO INTERNATIONAL RELATIONS 348, 348 (Emilian Kavalski ed., 2015).
11 See ANNE HERZBERG , NGO MONITOR, NGO “LAWFARE”: EXPLOITATION OF COURTS IN THE ARAB -ISRAELI CONFLICT 9–11 (2d ed. 2010).
12 See id. at 11.
13 See Mandate for Palestine, League of Nations Doc. C529M.314 1922 VI (1922),
http://avalon.law.yale.edu/20th_century/palmanda.asp; Richard Wilner, Nationalist Movements and the Middle East Peace Process: Exercises in Self-Determination, 1 U.C. DAVIS J. INT’L L. & POL’Y 297, 320, 324 (1995). The Mandate was—and is—considered valid
international law. See id. at 320.
14 Mandate for Palestine, supra note 13, pmbl.
15 See generally id. arts. 1–28.
16 Id. at art. 28.
17 See Gal Asael, The Law in the Service of Terror Victims; Can the Palestinian Authority be Sued in Israeli Civilian Courts for Damages Caused by Its Involvement in Terror Acts During the Second Intifada?, THE ARMY LAW ., July 2008, at 9; see also Mandate for Palestine, supra note 13, art. 15.
18 See Mandate for Palestine, supra note 13, art. 28.
19 Id. pmbl.
20 Id. art. 2.
21 See Montevideo Convention, supra note 3, art 1 (highlighting the importance of the
provisions in the British Mandate requiring that the land in Palestine be turned over to a
legitimate government of Palestine).