Reporting over the past few weeks has confirmed the presence of thousands of North Korean troops in the theatre of the Russo-Ukrainian conflict, and their imminent deployment on the battlefield. Estimates vary, but the North Korean regime has apparently provided more than ten thousand troops to its Russian ally. It remains to be seen whether these troops will be used directly in combat, or whether they’ll be used to consolidate and fortify positions behind the frontline. It also remains to be seen whether these troops will be used mainly or solely in the Kursk region, as part of Russian operations to recover control of the parts of its territory taken by Ukraine, or whether instead these troops will be used on Ukrainian soil.
Third states have assisted both Ukraine and Russia during the conflict, e.g. through the provision of weapons and ammunition. While some of these states have had their personnel on the ground in various roles, this is the first time that one such state has deployed troops in large numbers in an overtly combat role. As a policy matter, this is a major escalatory step. As a legal matter, the DPRK’s provision of troops to Russia manifestly violates its obligations under international law – North Korean and Russian protestations to the contrary notwithstanding.
There are, however, some complexities in that assessment, which I will examine in this post. These complexities relate to the law of state responsibility, the jus ad bellum and the jus in bello. To put it somewhat crudely, a pressing issue here is whether the DPRK is now itself committing aggression against Ukraine, or whether it is merely an accomplice in Russia’s aggression. Underlying this question is the issue of whether deploying or providing troops, as the DPRK has now done, is legally meaningfully different from, for example, providing Russia with millions of artillery shells, as it had done previously. My sense is that the answer to this question is yes – North Korea is now a principal, not just an accomplice in Russia’s wrongdoing. But, even if the answer to this question was negative, the DPRK would still be violating international law.
In this post, I will first discuss the relevant rules of the law of state responsibility. In particular, I will assess whether the conduct of DPRK troops remains attributable to North Korea, is instead attributable to Russia, or is attributable to both states simultaneously. I will then turn to the jus ad bellum and the jus in bello.
State Responsibility: Attribution
The conduct of North Korean troops in the Russo-Ukrainian war is that of de jure state organs of the DPRK, which is attributable to the DPRK so long as these individuals act in their official capacity, per the customary rule of attribution codified in Article 4 of the ILC Articles on State Responsibility. It is, however, necessary to consider here the impact of the (comparatively much more rarely applied) rule in Article 6 of the ILC Articles:
Conduct of organs placed at the disposal of a State by another State
The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed.
Under this rule, the conduct of the organs of state A being placed at the disposal of state B would exclusively be attributable to B. Consider, for example, the situation of judges in one state being seconded to serve as judges in another state (for instance, justices of the UK Supreme Court serving on the Judicial Committee of the Privy Council, in their role as judges of final appeal for several independent states within the Commonwealth).
In our case, the issue is whether the DPRK placed its troops at Russia’s disposal, within the meaning of Article 6 ASR. If it did, their conduct would be solely attributable to Russia, and not the DPRK.
The ILC construed the ‘placing at the disposal’ criterion strictly. Thus, according to its commentary to Article 6 (para. 2):
The notion of an organ “placed at the disposal of” the receiving State is a specialized one, implying that the organ is acting with the consent, under the authority of and for the purposes of the receiving State. Not only must the organ be appointed to perform functions appertaining to the State at whose disposal it is placed. In performing the functions entrusted to it by the beneficiary State, the organ must also act in conjunction with the machinery of that State and under its exclusive direction and control, rather than on instructions from the sending State. Thus article 6 is not concerned with ordinary situations of interstate cooperation or collaboration, pursuant to treaty or otherwise. (emphasis mine)
Further, according to the ILC commentary (para. 3), this is a ‘limited notion’ and ‘mere aid or assistance offered by organs of one State to another on the territory of the latter is not covered by article 6. For example armed forces may be sent to assist another State in the exercise of the right of collective self-defence or for other purposes [MM: including aggression!]. Where the forces in question remain under the authority of the sending State, they exercise elements of the governmental authority of that State and not of the receiving State.’
Finally – and this is the key point – ‘[s]ituations can also arise where the organ of one State acts on the joint instructions of its own and another State, or there may be a single entity which is a joint organ of several States. In these cases, the conduct in question is attributable to both States under other articles of this chapter.’
In my view, the DPRK troop deployment most likely falls within this final scenario contemplated by the ILC – one of dual attribution. Now, it is important to say that we don’t know the full facts of the Russia-DPRK relationship here. For what we do know, however, it seems unlikely that North Korean troops are exclusively operating under Russia’s direction and control, even if they are operating under some level of such control. According to Ukrainian intelligence reports, the North Korean contingent includes some 500 officers, including 3 generals. According to other reports based on intercepted communications, there should be a Russian interpreter and three officers for each 30 North Korean men, but it is unclear from that reporting how exactly the relationship between Russian and DPRK officers would work.
So, we just don’t know – at least not yet – how exactly this relationship has worked on the ground. But somehow I doubt it that Russia has 400 Korean-Russian interpreters and spare 1200 officers available that are capable of directly and exclusively commanding the 12000 DPRK troops. It seems to me more likely that, at least partially, operational command will be routed through the North Korean officers present on the ground, including the three generals, who will also not blindly follow every single Russian instruction given to them, but will at least occasionally consult and coordinate with Pyongyang.
So, my preliminary assessment of this is that the conduct of DPRK troops will remain attributable to North Korea, while it may also simultaneously be attributable to Russia on the basis of the rules set out in Articles 8 and 17 ASR – that is, on the basis of instructions, direction or control over the conduct of DPRK troops, which is not exclusive but shared with North Korea. In other words, this is likely a scenario of dual attribution.
This assessment would potentially change if evidence emerged of DPRK troops being fully integrated into Russian military units and operating under exclusive Russian command, thus triggering the ‘placed at the disposal’ rule in Article 6 ASR. This is the key factual question. Whether, for example, dead or captured DPRK troops will be found wearing their own uniforms or Russian uniforms or insignia is not directly dispositive of this factual question, although it may be a relevant evidentiary factor.
State Responsibility: Complicity
If the conduct of DPRK troops deployed in Russia or Ukraine remains attributable to North Korea, as I think is likely, then anything these troops do is an act of North Korea, for which that state is responsible. But there is another option. The DPRK may also be responsible for complicity in Russia’s wrongful conduct, under the general rule prohibiting aiding and assisting wrongful acts by third states in Article 16 ASR, or under the specific rule in Article 41 ASR, prohibiting aid and assistance in maintaining a situation arising from a violation of peremptory norms of international law. (See also the ICJ’s recent Palestine advisory opinion, para. 279).
I have previously extensively discussed these rules in other contexts, including intelligence sharing or the provision of arms (see here with regard to Iran’s provision of drones to Russia and also here with regard to arms transfers to Israel). For a more developed argument, readers can consult those previous pieces and the works cited therein.
For our purposes, the key point is this: even if one adopts a very strict understanding of the fault element of these complicity rules, one requiring an intention to facilitate the wrongful conduct of another, there is an inescapable evidentiary inference that the DPRK intended to facilitate Russia’s wrongful conduct against Ukraine, including its war of aggression. There is no conceivable reason for which the troops can be used but for aggression against Ukraine. Thus, at a minimum, the DPRK is complicit in Russia’s aggression by providing Russia will millions of artillery shells and with more than ten thousand troops that Russia would use against Ukraine.
Jus ad bellum: Aggression
At a meeting of the UN Security Council on the North Korean deployment held a few days ago, the Russian ambassador Vasily Nebenzya – that old charmer – argued that Russia was acting in compliance with international law, and denied that the deployment was even taking place: ‘These statements about the North Korean soldiers in our front should not surprise no one, because they’re all barefaced lies and they are trying to distract.’ Then he added:
Even if everything that is being said about the cooperation between Russia and North Korea by our Western colleagues is true, why is it that the United States and allies are trying to impose on everyone the flawed logic that they have the right to help the [Ukrainian President Volodymyr] Zelenskyy regime mobilise the military and intelligence of NATO, and Russia and its allies have no right to do a similar thing?
But there is no flawed logic here. Western (and other) states have every right to assist Ukraine, because Ukraine is the victim of Russian aggression. Whereas Iran or North Korea have no right to assist Russia in fighting Ukraine, because Russia is the aggressor. Things really are that simple, vestigial remnants of the law of neutrality notwithstanding.
Thus, there is simply no doubt that, by providing more than ten thousand troops to Russia, the DPRK is violating international law, just as it did so when it provided Russia with artillery shells. There is also no doubt that, by contrast, the US, France or Poland would be acting perfectly lawfully if they, at Ukraine’s request, deployed tens of thousands of their soldiers in Ukraine. This would be legal collective self-defence. This has not been done to avoid escalation, including a potential nuclear war, not because there are any legal barriers regarding the form of assistance that Ukraine can be provided with.
The only outstanding question is whether North Korea has itself directly violated the prohibition on the use of force against Ukraine, that is, whether it has itself committed aggression (or an armed attack), or whether North Korea is just an accomplice to Russia’s aggression. Answering this question positively would mean, for instance, that Ukraine would have a valid claim to individual and collective self-defence against the DPRK – not that this claim is likely to be relied upon beyond the use of lethal force against DPRK soldiers in theatre. Answering this question would also depend, in part, on the attribution issue examined above.
First, if I am right in arguing that the conduct of DPRK troops on the ground remains attributable to North Korea, although it may also simultaneously be attributable to Russia as well, then North Korea would be regarded as directly using force against Ukraine, and at such scale that any thresholds for armed attack or aggression would easily be crossed.
Second, if my attribution analysis is mistaken, or more facts emerge that favour a conclusion that Article 6 ASR applies and the conduct of DPRK troops is attributable to Russia exclusively, then North Korea’s provision of troops and ammunition could still be regarded as an indirect use of force (cf. the ICJ’s holding in Nicaragua that the US supply of weapons to the contras was an indirect use of force against Nicaragua; for an extended analysis, see also this paper by Schmitt and Biggerstaff).
Arguably, however, even such an indirect use of force could rise to the level of aggression. Article 3(g) of the UN General Assembly’s Definition of Aggression resolution includes within the scope of an act of aggression ‘t]he sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.’ The secondment of DPRK troops to Russia could reasonably fall within this prong of the definition, even in the absence of attribution of conduct to North Korea.
Therefore, in my view, North Korea could today be said to be committing aggression against Ukraine, if on a smaller scale than Russia. It is a principal, a joint perpetrator, not a mere accomplice. However one exactly frames this, there is a material legal difference between supplying Russia with troops and with ammunition, at least if these troops actively engage in combat. That said, even on the most conservative approach the DPRK would bear responsibility for complicity in Russia’s aggression, under the rules I examined above.
One final ad bellum note – even if North Korean troops are used solely to fight Ukraine in the part of Russia’s Kursk region that it occupied, this would still be an unlawful use of force against Ukraine. Ukrainian forces are in the Kursk region lawfully, through the exercise of Ukraine’s right to self-defence, and there can be no valid self-defence claim against self-defence. There is no material legal difference between DPRK troops attacking Ukrainian forces within Kursk or within Ukraine itself.
Jus in bello: Complicity, Participation and Ensuring Respect
Three brief points on the international humanitarian law implications of North Korea’s troop deployment:
First, in a situation in which there is substantial evidence of systematic violations of IHL by Russian forces in the conflict in Ukraine, assisting Russia, through the provision of weapons, ammunition or troops, at least arguably violates the negative duty of all states to refrain from assisting serious violations of IHL. This is a duty parallel to the general state responsibility rule in Article 16 ASR, and finds its expression, inter alia, in Common Article 1 of the Geneva Conventions (CA1). For a more developed argument in this regard, see my earlier piece here. The gist of it is that providing troops or artillery shells despite a clear risk that they might be used to facilitate serious violations of IHL – a risk manifest, for instance, from a pattern of targeting civilians and civilian objects by Russian forces – as such violates IHL, if this assistance ultimately facilitates such violations (that risk has not yet materialized, from what we know now).
Second, there is the question whether the provision of troops makes North Korea a (co-)party to the international armed conflict between Russia and Ukraine. Provision of weapons and ammunition would normally not suffice, but the provision of troops is different. This is certainly the case if my attribution analysis is regarded as correct – there would then be no doubt that North Korea would be engaged in an armed conflict with Ukraine. Note that, unlike with my first point about assistance, the mere fact that the DPRK became a party to the conflict is not as such internationally wrongful – it simply means that the IHL of IAC applies. For more on this issue, see this recent book by Alexander Wentker and this Chatham House paper which he co-authored. Needless to say, Ukraine would not need to wait for DPRK forces in Russia to engage in combat before engaging them – they are combatants and thus are lawful military objectives.
Finally, it is important to underline that the Russian Federation also has a CA1 duty to ensure that all forces under its operational command, including any DPRK troops, comply with IHL. In a secondment or near-secondment scenario such as this one, I would think that even the opponents of an ‘external dimension’ of CA1 (recently reaffirmed by the ICJ in its Palestine AO) would accept that the duty to ensure respect applies – for whatever that’s worth in practice.
