Finding a Forum for North Korea

47 Pages Posted: 6 Jun 2013 Last revised: 17 Oct 2013

See all articles by Morse Tan

Morse Tan

Northern Illinois University

Abstract

North Korea’s gross and systematic violations of human rights violate international law, including contravention of the treaties that North Korea itself has ratified (i.e., the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Rights of the Child; and the Convention on the Elimination of All Forms of Discrimination Against Women). Nevertheless, a surprising dearth of legal scholarship exists with respect to arguably the worst human rights situation in the world. This Article analyzes possible tribunals to provide a measure of redress for the victims of these heinous violations once the international community takes notice.

While contemplating other possibilities, such as the International Criminal Court and South Korean courts after Korean reunification, this Article suggests a hybrid tribunal as the most promising forum for trying the alleged violations of human rights by the Democratic People’s Republic of Korea (DPRK). Since the inception of the ICC in July of 2002, which presently has over 100 signatories, certain shortcomings (notwithstanding its strengths) have surfaced. With problems such as insufficient staffing, limited resources, and several jurisdictional hurdles, the ICC may not provide the best forum — although it may provide a rather good one — for addressing the egregious behavior of a rogue state like North Korea. Shortcomings in domestic law, sovereignty issues, and the perception of foreign influence among an ill-informed populace provide additional barriers to the legitimate working of an international court like the ICC. The solution, as articulated by this Article, is the composition of a hybrid tribunal that combines aspects of international and domestic courts in an attempt to increase legitimacy in pursuing justice and to build the capacity of a renewed domestic system, while providing a workable and less expensive alternative to other, less effective international justice options. By combining the knowledge, expertise, and work of both domestic and international personnel, hybrid tribunals can solve the problems of distance, access to witnesses and evidence, slow prosecution, and the high cost of the ad hoc tribunals of the past, while still achieving a comparable level of deterrence. Hybrids contemplate the concomitant goals of respecting sovereignty, yet resolving to prosecute criminals in situ for violating universal norms.

A comparative analysis of prior precedents around the world also strengthens the case this Article makes. With a destroyed infrastructure and legal system, as well as the lack of a legitimate judiciary, a closer look at the former Yugoslavia provides insight into a possible Korea of tomorrow, one that might be recovering from a highly destructive conflict. A hybrid tribunal in Yugoslavia attempted to correct Kosovo’s devastated judiciary by incorporating domestic actors and by aiming to increase legitimacy, decrease bias, and enhance capacity. Cambodia, another East Asian country that suffered under the yoke of oppressive Communist dictators and saw gross, systematic violations of the human rights of its people, provides another analogous situation. Similar to the apathy regarding North Korea presently, the international community and the UN focused on Cambodia’s sovereignty, while a farcical trial of the regime’s leader provided little redress for the Khmer Rouge’s victims. Examples such as these provide the international community with lessons from antecedent hybrid tribunals regarding the most appropriate methods of implementing international justice.

If the tragic climax of Korea’s instability results in another full-blown war, then international participation in any sort of redress must avoid the substance and taint of “victor’s justice.” However, if the Koreas unite peacefully, producing and utilizing any sort of tribunal so as to avoid an accusation of imperialism would remain challenging at best. The end product should be a hybrid tribunal that would ideally combine the strengths of a domestic court with the contributions of an international court to enhance legitimacy, build domestic capacity, reduce costs, and help bring a measure of justice. As a lack of commitment by the international community has stymied the process of providing justice in many previous cases, we must stay committed to adequately providing a remedy that the victims of this rogue state so desperately need.

Keywords: international law, international court, North Korea, hybrid tribunals, forum, comparative law

JEL Classification: H56, I00, I10, I30, I31, K14, K33, K40, K41, K42, K49

Suggested Citation

Tan, Morse, Finding a Forum for North Korea. Morse H. Tan, Finding a Forum for North Korea, 65 SMU L. 765 (2012), Available at SSRN: https://ssrn.com/abstract=2274973

Morse Tan (Contact Author)

Northern Illinois University ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

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