North Korea, International Law and the Dual Crises

Narrative and Constructive Engagement

Morse Tan

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781134122509
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The Democratic People's Republic of Korea (DPRK) has a reputation as one of the worst human rights situations in the world. This book utilizes a unique international law perspective to examine the actions and inactions of North Korea with regard to international security and human rights.

Adopting political, military, historical and legal perspectives, the book explores how the two issues of nuclear weapons and the human rights abuses in North Korea are interconnected, and why the international community should apply the same international law framework to find a solution for both. Drawing on eyewitness accounts, such as refugee and defector testimony, Morse Tan offers a real-life story of North Korea that covers the pertinent law, and constructive approaches of its regime. Tan examines the specific objectives and actions of the North Korean government, and measures these according to international legal obligations such as applicable treaty law, jus cogens norms, and customary international law.

The book concludes by offering solutions for dealing with international security surrounding the Korean Peninsula, and forwards a proposal for the creation of a tribunal to prosecute those at the top of the regime for international crimes and human rights abuses.

As a project exploring the extremes of international law violation, this book will be of great interest and use to readers interested in the history, and political and legal implications of the strategies employed by the North Korea government.

Section One

The story of a criminal regime

1 War, incursions, and provocations*

But more than the litany of crimes committed against South Koreans or the kidnapping of Japanese citizens or the axe-murder of UN guards in the Demilitarized Zone, more than the macabre nature of the North Korean regime which allows its citizens to starve to death by the hundreds of thousands while pouring in one-third of its GDP into the military, more than the habitual violations of international agreements and the predictable pattern of blackmail and willful deceit that has always underlain North Korean diplomacy, there is a basic irrefutable fact that shows that North Korea always has been and remains to this day a grave threat to South Korea’s national security and to peace in the region. It is North Korea’s explicitly stated national goal as enshrined in the preamble of its Korean Workers’ Party Rules and in its Constitution and repeated over and over again by the various channels of state propaganda machinery: “Liberate the South and bring about the complete victory of socialism on the fatherland.”¹

The Korean War

After finding itself no longer under the ignominy of the Japanese colonial period (which lasted from 1905 to the end of World War II),² Korea was experiencing a new kind of problem. The Soviet Union, after a period of relative inaction, decided to actively pursue military efforts at the end of World War II in order to strengthen its hand during post-war settlements.³ The Soviets poured south into Manchuria.⁴ The resulting U.S.–Soviet agreement, disregarding the will of the Korean people, split this small peninsula into the U.S.-aligned South Korea and the Soviet-aligned North Korea, with the Soviets agreeing to push no further south than the 38th parallel.⁵

Border skirmishes ensued over the next few years until, on the early morning of June 25, 1950, after Joseph Stalin gave the green light, North Korean forces embarked on a full-scale war by launching out over the 38th parallel.⁶ Premier Kim Il-Sung had eight full divisions (135,000 troops) at his disposal; many of these soldiers fought previously in World War II. By contrast, South Korea counted only 95,000 generally less-seasoned soldiers.⁷ The North Korean divisions drove deep into South Korea, overmatching the smaller South Korean forces, who were pushed down to the Pusan Perimeter, a relatively small swath of land at the southernmost tip of the peninsula.⁸ The North Korean troops made full use of their advantages of surprise and initiative.⁹

As the North steamrolled the South, the United States called upon the U.N. Security Council to take action against North Korean aggression.¹⁰ The Security Council, with the approbation of forty-four out of forty-nine U.N. member states, called upon its members to send military and other assistance: sixteen states sent soldiers and twenty-five total countries provided materials and other assistance.¹¹ General Douglas MacArthur stepped forward as the U.N. commander of the combined forces. The Soviet Union, as a permanent member of the U.N. Security Council, could have vetoed this first UNSC Resolution denouncing aggressive war, but instead boycotted the meetings, which did not constitute a veto.

MacArthur led a key counter-initiative known as the Inchon Landing, a tricky military maneuver due to the tides.¹² By the middle of September 1950, MacArthur’s forces not only plowed back to the 38th parallel, but they also continued on north.¹³ As the U.N. forces proceeded closer to the North Korean-Chinese border, Chinese soldiers poured into North Korea, driving the U.N. forces back. After two more pushes, one northward by the U.N. troops and one southward by the Chinese, the battle lines hardened for two more years back where they started—the 38th parallel.¹⁴

After three years of bloodshed and two years of negotiations, the “longest, most violated military armistice in modern history,” the Korean Armistice Agreement, took shape near the village of Panmunjom.¹⁵ It was signed on July 27, 1953.¹⁶ July 27 marked a momentous date in Korean history. The signing of the Korean Armistice on that date not only marked an official cessation of hostilities on the Korean Peninsula, but it also represented the end of the first test of U.N. military forces and a joint military response of U.N. member states.¹⁷ Found within this historic cease-fire agreement lies a promise that a permanent peace treaty would soon be signed between the U.N. forces and the Korean People’s Army and China.¹⁸ That promise was broken, as negotiations for a political conference between the parties to resolve this and other matters on the peninsula fell apart by mid-1954.¹⁹ Since that time, Korea has teetered on the brink of resuming all-out war, with a communist north and a democratic south, separated only by the ironically named Demilitarized Zone (DMZ), a mere 2.5 miles wide, part of the most militarized border in the world.

The Armistice Agreement, intended as a temporary measure by its own terms, was supposed to be replaced by a peace treaty through a conference convening within three months after the agreement.²⁰ While a treaty emerging from the conference was supposed to settle the remaining issues, such as withdrawal of foreign forces from Korea and a new peace for the Land of the Morning Calm, this anticipated peace treaty did not come about as planned. Due to this failure, the two Koreas instead signed the Agreement of Reconciliation, Non-Aggression and Exchanges and Cooperation between North and South toward the end of 1991, and the Joint Declaration by South and North Korea of the Denuclearization of the Korean Peninsula in 1992.²¹

A short history of provocations

Notwithstanding the Armistice, the U.S. Congressional Research Service had documented some 124 provocations by North Korea against the United States, South Korea, and/or Japan from June 1950 to March 2003.²² They ranged from multiple assassination attempts on South Korean presidents,²³ to the infiltration of thousands of armed agents involved in kidnapping and terrorism,²⁴ and from the mid-air bombing of a South Korean Boeing 707 passenger plane in 1987,²⁵ to the capture of the U.S.S. Pueblo, a surveillance ship.²⁶ More recent Congressional and other sources put these numbers even higher. For example, one Korean journal found that from 1953 to 1996, North Korea initiated a total of 361 armed attacks, 539 armed incursions, and 687 exchanges of gunfire, aggregating a total of 1,587 incidents.²⁷ From 1997 to 2003, infiltrations and abductions by North Korean agents, infantry and naval military skirmishes, and gunfire exchange remained commonplace. For example, North Korean ships provoked a nine-day naval confrontation with South Korea in the Yellow Sea over disagreement about the Northern Limit Line in June 1999.²⁸ Over the last decade, the DPRK has continued its provocations by launching a series of short-range and mediumrange missiles into the Sea of Japan (East Sea according to Korea) and conducting several nuclear tests.²⁹

Air and naval encounters over the years have proven especially deadly. In April 1969, North Korean MiG jet fighters destroyed a U.S. EC-121 reconnaissance plane over the Sea of Japan, taking thirty-one lives. This unarmed plane was flying about ninety miles off the North Korean coast.³⁰ As recently as March 2003, four North Korean fighters intercepted an American Air Force reconnaissance plane in international airspace above the Sea of Japan.³¹ “The North Korean Navy has captured and detained numerous South Korean merchant ships that have entered North Korea’s territorial sea.”³² The list goes on.

One particular incident illustrates North Korea’s brutal treatment of those individuals that it actually does capture. On January 23, 1968, North Korea attacked and seized the intelligence ship, the U.S.S. Pueblo, in international waters, killing one crewman and detaining eighty-two others. The DPRK incarcerated the crew until mid-December of that year when it returned them to South Korea. However, the ship stayed behind as a trophy museum piece for the regime.³³ Within that time period, North Korea quartered several to a room and the POWs were “threatened with death, interrogated, and some were severely beaten,” eliciting supposed “confessions” as to their “criminal aggressive acts.” Their treatment was documented through interviews shortly after their return by the Naval Health Research Center in California:

Their treatment by the North Koreans varied; in general the living quarters, sanitation facilities and medical care were unsatisfactory by western standards. Food was deficient in both quality and quantity. Physical maltreatment was concentrated in two specific periods—the first three weeks (i.e. until all had “confessed”) and a “purge” two weeks prior to release in an effort to obtain names of those crew members who had attempted to communicate their lack of sincerity to the western world. (Propaganda photographs often showed smiling faces in association with obscene gestures.) Physical abuse consisted of fist assaults or kicks in the head or groin. Several crew members who were forced to squat with an inch square stick behind their knees reported losing consciousness and, as a result of the beatings, one man had a fractured jaw. Through lectures, field trips, and written material, the North Koreans attempted to convince crew members of the injustices of their “imperialist” government.³⁴

Because of such treatment, researchers discovered that the men were initially depressed and anxious upon return and we...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• Acknowledgments
• Introduction
• Section One The story of a criminal regime
• Section Two Dissecting the crimes
• Section Three Constructive approaches and solutions
• Appendix I North Korean Human Rights Bill
• Appendix II Organizations addressing the North Korea crisis
• Appendix III The national law journal
• Appendix IV North Korea’s Strategic Belligerence
• Appendix V Satellite images of North Korea
• Index