Legitimacy and justice on the Korean peninsula

[Editor's note: We gratefully acknowledge the special contribution of this paper with written permission to ICAS of Grace M. Kang.
The paper original appeared as an editorial in The Washington Times, Tuesday, November 18, 2014 sjk]

Legitimacy and Justice on the Korean Peninsula

Grace M. Kang

With the world absorbed by the terror of Islamic extremists and Middle East violence, North Korea continues to terrorize, imprison and impoverish its own citizens in ways that civilized nations can barely comprehend. Yet when the international community focuses on North Korea at all, it concerns itself not with the Hell within its borders, but how to "denuclearize" the Korean peninsula.

An upcoming United Nations General Assembly resolution provides the U.S. and the international community a chance to rally world opinion against not only the security threat posed by a nuclear North Korea, but also the illegitimacy of the North Korean regime as presently constituted and its treatment of those trapped within its borders.

Legitimate governance should be the defining principle for any strategy toward North Korea. Because anticipated peninsula-wide elections that would have unified and legitimized the governance of the peninsula failed to take place in 1948, Korea remains divided. The Soviet Union’s temporary boycott of the UN Security Council at the time allowed the UN to authorize the military action that kept the South out of Communist hands. When the Soviets returned to the Security Council and deadlocked it, the General Assembly took on the Korea issue through its "Uniting for Peace" Resolution.

The two Koreas remain legally at war, though actual hostilities ended with the 1953 armistice that for Americans marked the end of the "Korean War" in spite of occasional flare-ups as North Korea continues to test South Korea’s defenses and U.S. resolve.

It is time for the UN General Assembly to take on the unfinished business of the peninsula through a series of "Uniting for Justice" resolutions. A report this year by the UN Commission of Inquiry (COI) condemning North Korea’s crimes against humanity marks a milestone in progress, but is not enough. The problem of Chinese and Russian vetoes in the Security Council likely precludes much progress in that forum, which means that if anything is to be accomplished, the UN General Assembly will have to take the lead in addressing the problem.

It can do so by including in this year’s resolution a paragraph that questions the legitimacy of the "Democratic People’s Republic of Korea" ("DPRK") if the regime refuses to meaningfully implement the COI’s recommendations, starting by immediately dismantling its political prison camps and halting crimes against humanity. The well-being of the Korean people must be the measure of what constitutes legitimate governance, as called for by the UN’s Responsibility to Protect and other international norms.

A refusal by the North Korean regime to comply will eventually lead to worldwide agreement that "DPRK" is not legitimate if it does not significantly reform. This de-legitimization of the "DPRK" would be highly significant. It could well result in the "DPRK’s" loss of UN membership on the grounds that it is not a state. North Korea doesn’t have many friends or defenders, so kicking it out of the UN "club" is not unimaginable.

De-legitimization would also create the conditions for International Criminal Court (ICC) prosecution of North Korean officials. With UN General Assembly support in financial resources and "Uniting for Justice" resolutions, the ICC Prosecutor would be empowered to investigate and seek arrest warrants against North Korean perpetrators with jurisdiction based on the fact that the Republic of Korea (ROK), which claims the entire peninsula as its territory, is a state party to the Rome treaty.

Of course, enforcing an arrest warrant against Kim Jong Un isn’t likely to happen in the near term, but planting the seeds for it now could prove important in the future if, for example, Beijing decides to walk away from the embarrassment of continuing to support the North Korean dictatorship or major conflicts develop within the "DPRK" itself.

De-legitimization could prove crucial to re-uniting North and South Korea if the northern regime collapses at some point because it would make it far more difficult for a third party such as China to occupy the north and seize control of the "DPRK’s" nuclear weapons or take other measures that could "save" the "DPRK" regime.

Instead, for historical, moral, political, and legal reasons, South Korea would and should be the successor if the "DPRK" crumbles. The current division of the Korean peninsula is a post-Cold-War aberration in a thousand-year history of unity. A UN transitional authority, perhaps including China, and careful consideration of transitional justice, truth and reconciliation could provide a path to a bright future for all Koreans, ease integration and leave a united Korea in much the way that the two Germanys were united after the collapse of the Soviet Union.

Starting with the forthcoming UNGeneral Assembly Resolution, the diplomatic groundwork must begin now to establish that the entire Korean peninsula should be under legitimate governance and that governance must be modeled on South Korea as the only legitimate government on the peninsula. As a key piece of a comprehensive strategy, the UN General Assembly must begin pushing for legitimate governance of the Korean peninsula and uniting for justice now.

Grace Kang, a former State Department Foreign Affairs Officer and visiting assistant professor at Seoul National University, is the author of "A Case for the Prosecution of Kim Jong Il for Crimes Against Humanity, Genocide, and War Crimes."

This page last updated November 21, 2014 jdb

ICAS Special Contribution