Grace Kang Paper

[Editor's note: We gratefully acknowledge the special contribution of this paper, first published in the Georgetown Security Studies Review, courtesy of Grace M. Kang to ICAS. sjk]

Seeking Legitimate Governance of the Korean Peninsula

Grace M. Kang, Guest Columnist

May 08, 2015 GSSR Forum

North Korea's heinous crimes against humanity deserve the same sustained attention its nuclear weapons get. The regime's systematic categorization and control of its citizens, with the lowest category condemned to political prison camps similar to those of the Nazi and Soviet eras, produces totalitarian terror unlike anywhere else today. Yet denuclearization as the prerequisite for broader peace negotiations is the dominant goal driving international community efforts. This approach, however, has not produced an effective strategy for resolving either the nuclear threat or human rights catastrophe. The international community should instead target an end state that can organize tactics into a strategy for solving both the nuclear threat and atrocity crimes: the legitimate governance of the Korean peninsula.

Focusing on legitimate governance, defined as governance for the well-being of all Koreans, addresses the root cause of the security threat. It provides an overarching principle that gives policymakers the foresight to plant diplomatic seeds that can be crucial later. It can create a pathway for the International Criminal Court (ICC) Prosecutor to initiate an investigation of the North Korean regime without a United Nations (UN) Security Council referral. It can establish that South Korea, not China, should govern North Korea in the event of its collapse. It acknowledges the reality that North Korea in its present state is highly unlikely to denuclearize. It maximizes the chances for a nuclear-free human rights-respecting outcome by eroding North Korea's legitimacy. It also allows for the unlikely possibility that North Korea seeks to reform itself.

The legitimate governance problem has eluded international efforts to resolve it since 1948, when elections for governance of the entire peninsula, as authorized by the UN, failed to occur. ¹ This failure resulted in the creation of the rival North and South Koreas, devastating warfare, armistice instead of peace, and the on-going split of the peninsula. The North, called the Democratic People's Republic of Korea (DPRK), relied on the Soviet Union and China to survive, while the South, the Republic of Korea (ROK), relied on the United States under the mandate of the UN. When North Korea attacked on June 25, 1950, UN action in the Security Council was possible because the veto-wielding Soviet Union was boycotting it briefly, and after its return, the UN General Assembly (UNGA) took action through its landmark "Uniting for Peace" Resolution. ²

The Korean War was the Cold War gone hot and it has never been fully extinguished. Tensions flare at times with military attacks, such as the 2010 sinking of the Cheonan, killing 46 ROK sailors; nuclear provocations (notably nuclear weapons tests in 2006, 2009, and 2013); missile launches; and various incidents such as the 2008 killing of a South Korean tourist at the North's Mount Kumgang and the abductions of thousands of people from at least 14 nationalities as of 2011. These flare-ups punctuate efforts toward better relations in the form of the "sunshine" policy, diplomatic negotiations on denuclearization, joint economic ventures, and family reunions. At the same time, the ROK's powerhouse economy and democratic governance roar ahead as the DPRK proceeds on a path of criminality, not only committing crimes against humanity, genocide, and war crimes, ³ but also counterfeiting U.S. dollars, illicit drug-dealing, cyberattacks, and other crimes stemming from the failure to develop a legitimate economy. Every measure of ROK prosperity dwarfs that of the DPRK, with even the average South Korean being physically taller and healthier than the average North Korean, who is often stunted by malnutrition. The South, with its far greater respect of human rights and economic prosperity, has without doubt provided better governance to Koreans than the North.

The well-being of the Korean people is the correct measure for what constitutes legitimate governance by both Eastern and Western standards. The Chinese concept known as the Mandate of Heaven requires a leader to be just and can be withdrawn from a ruler when his people deem his actions excessively abusive. ⁴ Western notions of the social contract also espouse the people as the source of a government's legitimacy; extreme abuse by a government renders it illegitimate. ⁵ The UN Declaration of Human Rights, the International Covenant on Civil and Political Rights, and other UN treaties are grounded in the rights of each human being. So also is the Responsibility To Protect (R2P) doctrine, which assumes that the government has a responsibility to protect its own people from atrocities and if it fails to do so, other states should intervene to provide that protection.

The 2014 landmark report by the UN Commission of Inquiry (COI) makes clear the DPRK regime has failed to meet such obligations. Instead, the DPRK is committing crimes against humanity and other systematic, widespread, and gross human rights violations that have produced hundreds of thousands of deaths and are fundamental to the DPRK political system. The report describes the DPRK as totalitarian in seeking to dominate every aspect of its citizens' lives and terrorize them through constant surveillance. In addition, the COI recommended the UN Security Council refer the DPRK situation to the ICC and adopt targeted sanctions against those most responsible for crimes against humanity.

Given the centuries-old norm that legitimate governance is contingent upon the treatment of citizens, the international community must question the legitimacy of the DPRK. The UN General Assembly (UNGA), for example, should include in a resolution a paragraph such as: "Urges implementation of the COI's recommendations and questions the legitimacy of the DPRK if the DPRK does not meaningfully do so, starting with the immediate dismantlement of its political prison camps and halting of its crimes against humanity." The resolution should discuss the UN's historic role in Korea, including the unresolved question of peninsula-wide governance, UN-authorized military action, and Security Council efforts to end the nuclear problem, in addition to the UN's human rights efforts. The UN has much unfinished business on the peninsula. By setting forth the R2P-related norm that legitimacy is tied to treatment of citizens, such a resolution can be frequently reiterated in other UN fora, with increasingly tough language that could eventually lead to wide international agreement that DPRK is not legitimate. For those who would oppose such a campaign on the grounds that it would threaten other states such as Israel, the international community must emphasize that the DPRK's atrocity crimes are unique in the world today and its actions against it are applicable to DPRK alone.

The case of South Africa offers a model for another de-legitimization effort. The General Assembly rejected its delegation's credentials as not representing all South Africans during its apartheid era and did not allow it to participate in its work. ⁶ The DPRK's discriminatory classification of its people and its crimes against them are at least as heinous as South Africa's apartheid. Although South Africa was not expelled from the UN, a campaign against DPRK could also be aimed at its removal from UN membership pursuant to Article 6 of the UN Charter, which allows expulsion when a member has persistently violated the UN Charter's principles. Opposition in the Security Council would likely hamper this expulsion, but it is a possibility that should be explored. In addition, the DPRK's current UN membership is not determinative of its statehood under international law. Statehood is highly political. The DPRK has only a few friends, as shown by the resolutions of the UN Human Rights Council, General Assembly, and Security Council. A campaign of de-legitimization should shake the very statehood of the DPRK.

Perhaps the greatest value of a campaign to erode the DPRK's legitimacy is the pressure it puts on the DPRK as it seeks to avoid any downgrading of its status. Similar to the effect of the COI's report, such a campaign could prompt some change in the DPRK's behavior. De-legitimization is significant also because it potentially allows the ICC Prosecutor to initiate an investigation of the DPRK with jurisdiction based on the fact that the ROK is a state party to the Rome Statute, which governs the ICC. ⁷ The ROK Constitution states that the ROK's territory encompasses the entire Korean peninsula, not just the southern part. Thus de-legitimization of DPRK offers an alternative path to the ICC if the Security Council does not refer it, which is likely given the veto powers of China and Russia. The UNGA can provide political backing and possibly financial resources to the ICC Prosecutor in the form of what could be called "Uniting for Justice" resolutions, as a nod to the previous time the UNGA had to act on Korea due to the deadlock of the Security Council. ICC action is preferable to the creation of an ad hoc tribunal because the ICC Prosecutor acting motu proprio, ideally with UNGA support, avoids the extra time and resources necessary for creating an ad hoc tribunal. Time matters as victims die each day from torture and starvation.

The erosion of DPRK statehood is key also for the security aspect of the Korean peninsula endgame. By de-legitimizing the DPRK and supporting the ROK's Constitutional claim to the full peninsula, the international community would create conditions for precluding continued division, such as occupation by China in the event of a DPRK collapse. It would also disallow China seizing control of the DPRK's nuclear weapons or taking other measures that could rescue a crumbling DPRK regime. Instead, the ROK must be the successor if the DPRK implodes. The current division of the peninsula is a post-Cold-War aberration in a thousand-year history of unity. A UN transitional authority, perhaps including China's participation, and careful consideration of transitional justice, truth and reconciliation, and a path towards a bright future for all Koreans except those most responsible for atrocity crimes, would ease the integration of the northern peninsula into the ROK.

Regarding denuclearization, the problem with the DPRK currently holding nuclear weapons and technology is not that the DPRK has them, but rather what it might do with them. The DPRK's proliferation of nuclear technology is a serious concern, given its linkages to networks that increase the chances for terrorist or enemy state use. The DPRK itself could launch the weapons, killing millions in Seoul or, as some speculate, disabling the United States' electrical grid through an electromagnetic pulse, which could result in massive casualties. ⁸ The likelihood of DPRK survival after such attacks, however, is extremely small, given the retaliatory capabilities of the United States and others, so much so that it is widely regarded that the DPRK would be committing suicide if it dared to use nukes either directly or by supplying them to terrorists. Is there a scenario in which the DPRK regime would be willing to risk suicide? Perhaps if it was about to be destroyed anyway. But actions such as criminal investigation, financial sanctions and UN resolutions declaring the DPRK illegitimate would not tangibly affect the DPRK regime's immediate existence, so the DPRK reaction to such actions is unlikely to go beyond its usual bluster and belligerence.

Legitimate governance as the strategic target also allows the unlikely possibility that the DPRK transforms itself as called for by the COI's report. Although hard to imagine, the possibility must be acknowledged. Legitimate governance does not necessarily require democracy, although it is preferred as the best way to meet people's needs. If the Korean peninsula is governed by two systems that treat their citizens fairly and function effectively and peacefully, then such an end should be acceptable because it offers the best prospects for denuclearization in addition to respect for human rights. A state that does not rely on nukes to survive is more likely to denuclearize. Additionally, the possession of nuclear weapons and technology is far less significant in a state with legitimate governance. Two legitimate states also allows the possibility that they could enter into unification talks and merge into one Korea, perhaps with a federal structure. Legitimate governance would allow for the best interests of the people of the entire peninsula to determine whether and in what form unification takes.

While the DPRK has already expressed interest in a federal structure for unification, its lack of legitimate governance makes full-fledged unification talks untenable. ⁹ In addition, the United States will not entertain talks that do not substantially address nuclear weapons first. It seems, however, that engagement with DPRK that is centered on helping it reform could allow for an opening towards better prospects for both human rights and nuclear security and ultimately peace and unification. The United States should be willing to engage with the DPRK on reform, both economic and human rights, and the nuclear threat simultaneously, instead of demanding substantial steps towards de-nuclearization first. Engagement that includes economic reform would also be consistent with ROK President Park Geun-hye's vision for multi-farming complexes and other development projects in the North, as stated in her March 2014 speech in Dresden, Germany. People-to-people contact must be encouraged as early steps toward re-unification. ¹⁰

A campaign to de-legitimize the DPRK must simultaneously be open to dialogue with the DPRK should it seek to reform itself. The end of the political prison camps would be the appropriate scale of action required for the international community to believe that the DPRK's efforts are genuine. If serious action by the international community, including the prospect of losing UN credentials or increasing sanctions, does not cause DPRK to reform genuinely, then international criminal prosecution efforts must be pursued in earnest with jurisdiction based on the ROK as the legitimate state for the entire peninsula.

Perhaps the greatest value of a campaign to erode the DPRK's legitimacy is the pressure it puts on the DPRK as it seeks to avoid any downgrading of its status. Similar to the effect of the COI's report, such a campaign could prompt some change in the DPRK's behavior. De-legitimization is significant also because it potentially allows the ICC Prosecutor to initiate an investigation of the DPRK with jurisdiction based on the fact that the ROK is a state party to the Rome Statute, which governs the ICC.⁷ The ROK Constitution states that the ROK's territory encompasses the entire Korean peninsula, not just the southern part. Thus de-legitimization of DPRK offers an alternative path to the ICC if the Security Council does not refer it, which is likely given the veto powers of China and Russia. The UNGA can provide political backing and possibly financial resources to the ICC Prosecutor in the form of what could be called "Uniting for Justice" resolutions, as a nod to the previous time the UNGA had to act on Korea due to the deadlock of the Security Council. ICC action is preferable to the creation of an ad hoc tribunal because the ICC Prosecutor acting motu proprio, ideally with UNGA support, avoids the extra time and resources necessary for creating an ad hoc tribunal. Time matters as victims die each day from torture and starvation.

Grace M. Kang, Esq. is an Associate at the Institute for Corean-American Studies and formerly a Foreign Affairs Officer at the State Department and a visiting assistant professor at Seoul National University. She is the author of "A Case for the Prosecution of Kim Jong Il for Crimes Against Humanity, Genocide, and War Crimes," Columbia Human Rights Law Review, Vol. 38, No. 1 (Fall 2006), pp. 51-114.

1	Bradley K. Martin, Under the Loving Care of the Fatherly Leader: North Korea and the Kim Dynasty (St. Martin's Press, 2004), p. 61.
2	United Nations Security Resolution 377(V), available at:http://www.un.org/en/sc/repertoire/otherdocs/GAres377A%28v%29.pdf
3	Grace M. Kang, "A Case for the Prosecution of Kim Jong Il for Crimes Against Humanity, Genocide, and War Crimes," Columbia Human Rights Law Review, Vol. 38, No. 1 (Fall 2006), pp. 51-114; and Hogan and Lovells, Crimes against humanity, An independent legal opinion on the findings of the Commission of Inquiry on Human Rights in the Democratic People's Republic of Korea (May 2014), available at: http://humanliberty.org/wp-content/uploads/2014/06/20140612-DPRK-Report.pdf
4	"tianming," Encyclopedia Britannica, available at:http://www.britannica.com/EBchecked/topic/595275/tianming; and Karen Armstrong, Fields of Blood: Religion and the History of Violence (Knopf, October 28, 2014), p. 83.
5	For example, John Locke, Second Treatise of Government (CreateSpace Publishing, March 20, 2015).
6	Alison Duxbury, The Participation of States in International Organizations: The Role of Human Rights and Democracy (Cambridge University Press, January 1, 2011), pp. 116-117.
7	Articles 12, 13, and 15, Rome Statute of the International Criminal Court, available at: http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf; See Kang, supra note 3, at 71-74. Article 12(1) states "A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to" genocide, crimes against humanity, war crimes, and aggression. Article 12(2)(a) states "the Court may exercise its jurisdiction if...The State on the territory of which the conduct in question occurred" is a Party to the Rome Statute. Article 13(c) states the Court may exercise its jurisdiction...if...The Prosecutor has initiated an investigation ... in accordance with article 15." Article 15(1) states "The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court."
8	James Woolsey and Peter Vincent Pry, "The Growing Threat from an EMP Attack," Wall Street Journal, August 12, 2014, available at: http://www.wsj.com/articles/james-woolsey-and-peter-vincent-pry-the-growing-threat-from-an-emp-attack-1407885281
9	"S. Korean Authorities Urged to Support Proposal for Achieving Reunification by Federal Formula,"Korean Central News Agency of DPRK, October 1, 2014, available at:http://www.kcna.co.jp/item/2014/201410/news01/20141001-13ee.html; and Young Ho Park, "South and North Korea's Views on the Unification of the Korean Peninsula and Inter-Korean Relations," Brookings Institution, available at: http://www.brookings.edu/~/media/events/2014/1/21-korean-peninsula-unification/park-young-ho-paper.pdf
10	"Full Text of Park's Speech on N. Korea," The Korea Herald, March 28, 2014, (also known as the Dresden Initiative), available at: http://www.koreaherald.com/view.php?ud=20140328001400; see also David S. Maxwell, "Should the United States Support Korean Unification and If So, How?" International Journal of Korean Studies, Vol. XVIII, No. 1 (Spring 2014), pp. 139-156; and Roberta Cohen, "A Human Rights Dialogue with North Korea: Real or Illusory?," 38 North: Informed Analysis of North Korea, October 16, 2014, available at: http://38north.org/2014/10/rcohen101614/

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