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This Is Dangerous Thinking

On April 8, President Trump met with Chinese leader Xi Jinping in Florida for the first of their much-anticipated meetings. The results—or lack of—were overshadowed by the administration’s decision that morning to launch a series of airstrikes in Syria following Bashar al-Assad’s use of chemical weapons, which the White House called “a wake-up to the civilized world.”

But according to foreign policy analysts, the attacks were meant to have an additional effect on Trump’s meeting with Xi that day: to underscore the US’ renewed willingness to use force against other rouge states, namely, North Korea. Hours later the US diverted an aircraft carrier toward the Korean peninsula, while Trump administration officials noted their “full range of options” in responding to further provocations. “With North Korea, the underlying issues are just as complex [as Syria],” the Washington Post explained, “but the threat of a nuclear conflict… makes the stakes far higher.”

While we pay attention when North Korea tests another nuclear device—and for good reason—we have all but written off North Korea’s unlucky citizens, who, if they manage to escape into neighboring China, must live sub rosa or risk being deported back to a life of hard labor and often death. “A person like me has to constantly remind the world that it is not just a security issue, but a human rights issue,” said Justice Michael Kirby in the Clough Distinguished Lecture on Jurisprudence at BC Law on April 10.

Kirby’s list of titles and honors are too long to name, but the former (1996-2009) Justice of Australia’s High Court’s most recent role was Chairman of the UN Commission of Inquiry into North Korea. According to Kirby, the commission was the result of “a constant scream of complaints, testimony, and evidence” over the last ten years to investigate and publicize “at the highest level” the extent of Pyongyang’s crimes against its citizens. “Security affects us,” Kirby reminded the audience, “but human rights affects them.”

Even for serial rights-abusing states, North Korea presents a unique challenge for jurists. It owed its geographic borders to the pencil of Dean Rusk, later US Secretary of State but in World War II just a middling State Department official. Rusk had never been to Korea, but was ordered to literally draw up new borders for an “American zone” in the South and “Soviet zone” in the North, per Franklin Roosevelt and Joseph Stalin’s agreement at the 1943 Cairo Conference. “If the Clough Center is a study of electoral democracy,” Kirby remarked of the autocratic regimes each side imposed and backed for several more decades, “then neither of the two was such.”

But while the South transitioned to democracy in the 1980s, buoyed by rapid economic growth through external trade, the North sank deeper into the totalitarianism and autarky its ruling family adopted and adapted from Stalin. Today, the “Hermit Kingdom” respects few international laws or agreements, but then again, it does not claim to.

The UN commission’s first task was to decide on a methodology. Usually, Kirby explained, the UN uses European civil law traditions for such investigations, which, while efficient, lack the “Anglo-American tradition of transparency and openness.” Those values were especially important in North Korea’s case, since Pyongyang refused to let commission members into the country, nor would they answer any questions the commission posed.

Thus, the decision was made to make the investigation as open and accessible as possible, by releasing progress reports, inviting media to public hearings, and broadcasting film for television and online audiences. In accordance with due process, the commission continually updated the North Korean government on its proceedings, and Kirby personally sent Kim Jong Un a copy of the final report “to see if he wanted to make any factual comments, corrections, etc.” (This, too, was ignored.) The commission also adopted the Anglo-American tradition of providing extracts of witness testimony—namely, that of Koreans who had escaped the North through its borders with China, Russia, and Mongolia. “If we did nothing else,” Kirby insisted, “it was this.” Including testimony “on every second page of the report [was] a way of showing that the UN system was taking their complaints and their suffering seriously.”

The commission also developed a ten-point mandate for assessing human rights abuses, evaluating, among others, access to food, restrictions on movement, prison conditions and detention camps, and human trafficking. Testimonial evidence of the government’s guilt was overwhelming.

Included in that mandate were two other categories of even more serious violations. The charge of crimes against humanity—understood since 1946 as “crimes of violence, pursued as a matter of state policy, which shock the conscience of mankind”—was, sadly, easy to prove. The commission could not declare evidence of genocide, however, since Pyongyang’s mass killings did not occur primarily on the “basis of race, nationality, ethnicity, or religion.”

Of course, the commission is not a court, Kirby reminded the audience, “but a fact-finding commission. Inquiry was our obligation.” When the report was completed in 2014, it recommended that the UN Security Council refer the matter to the International Criminal Court for prosecution through the use of an “exceptional provision” it possessed.

While the UN Human Rights Council adopted the report’s recommendations unanimously, so far no Security Council member has put forth a motion for referral. Kirby believes this is because of a “feeling on the part of Western countries that China and Russia would veto it,” and he is almost certainly correct. (Russia added that while it did not object to the commission’s findings, it disagreed with “country-specific mandates” for prosecuting such crimes. Meanwhile, China “politely refused” to work with the commission during its investigation on refugees, maintaining that North Koreans who escape into China are “economic refugees” whom it may deport back under international law.)

As of this writing, Washington says that all cards are on the table in responding to North Korea’s increasingly aggressive behavior. According to the Wall Street Journal, Trump told President Xi in a phone call on April 11 to “let Kim Jong Un know the US doesn’t just have aircraft carriers, but also nuclear submarines.” This is dangerous thinking. “Anybody who thinks you can have a nice little nuclear war on the Korean peninsula [is wrong],” Kirby insists. “The immediate effects are so horrendous and substantial on humans and the environment that we cannot think of a contained nuclear war.”

Still, Kirby has hopes for a happy ending to North Korea’s state of repression and isolation. “The people of North Korea are men, women, and children like us,’ he said. “They did not choose the division of their country, and their divisions are a temporary settlement.”

 

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