Can there be justice for Otto Warmbier? – Lorraine Finlay

There is no such thing as a funny dictatorship. This seemingly obvious point was highlighted with the death of Otto Warmbier, who was until recently imprisoned in North Korea. While Hollywood movies like Team America: World Police and The Interview have, from time to time, parodied the North Korean regime, Warmbier’s death is a stark reminder that this regime is not a joking matter.  

Otto Warmbier was an American tourist visiting North Korea in 2016 when he was arrested at Pyongyang International Airport. In March 2016 he was sentenced (by what Human Rights Watch has described as a “kangaroo court”) to 15 years imprisonment and hard labor after being found guilty of committing a “hostile act against the state” for stealing a communist propaganda poster from a staff-only area of his Pyongyang hotel. After 18 months in captivity Warmbier was returned to the United States in a comatose state, and died six days later on 19 June 2017.

What led to his death is not entirely clear. Doctors at the University of Cincinnati Medical Centre said that when he arrived home he was in a state of “unresponsive wakefulness” and had suffered “extensive loss of brain tissue in all regions of the brain”. North Korean authorities have claimed that he fell into a coma about one month after his trial as a result of contracting botulism and taking a sleeping pill. Yet there was no evidence of botulism found by the American physicians who examined him.

The US Secretary of State has made it clear that the United States “hold North Korea accountable for Otto Warmbier’s unjust imprisonment”. Senator John McCain went even further, bluntly stating that Warmbier had been “murdered by the Kim Jong-un regime”.

Can there be justice for Otto Warmbier? What does justice even look like in a case like this?

An Isolated Incident?

A key point to highlight when thinking about justice here is that the Otto Warmbier case is not an isolated incident. The North Korean regime has been described as “the most despicable on the face of the earth” and “a human rights black hole for both foreigners and citizens”. The Commission of Inquiry charged by the UN Human Rights Council with investigating human rights in North Korea concluded in its 2014 report that “[s]ystematic, widespread and gross human rights violations have been and are being committed by the Democratic People’s Republic of Korea, its institutions and officials”. It found that in many instances, these violations of human rights constituted crimes against humanity and that “[t]he gravity, scale and nature of these violations reveal a State that does not have any parallel in the contemporary world”.

The death of Otto Warmbier has yet again bought into sharp focus the reality of this regime. Crucially, it may also provide the necessary impetus for the United States to prioritise seeking some form of justice against North Korea. The U.S Ambassador to the United Nations, Nikki Haley, observed that “[c]ountless innocent men and women have died at the hands of the North Korea criminals, but the singular case of Otto Warmbier touches the American heart like no other”.

Any question of international justice must consider not only justice for Otto Warmbier, but also for the many other individuals who have suffered at the hands of the North Korean leadership. But what are the possible options for international justice, and what are the realistic prospects of any level of justice actually being achieved?

International Criminal Court

One of the recommendations made by the 2014 Commission of Inquiry report was that the UN Security Council refer the situation to the International Criminal Court (“ICC”). This call was echoed recently by Nobel Peace Prize laureate José Ramos-Horta. The ICC was established under the Rome Statute in 2002 and was designed to end individual impunity at the international level by prosecuting those individuals responsible for the gravest crimes that “deeply shock the conscience of humanity”.

Any prosecution before the ICC would necessarily look beyond the case of Otto Warmbier and focus instead on establishing a systematic pattern of human rights abuses. This is because the jurisdiction of the ICC is limited to specific categories of crimes considered to be “the most serious crimes of concern to the international community as a whole”. While murder itself does not fall within the jurisdiction of the ICC, it may form part of a broader prosecution if the killings can be categorised as either genocide, crimes against humanity or war crimes. In the case of North Korea, the 2014 Commission of Inquiry concluded that “[a] number of long-standing and ongoing patterns of systematic and widespread violations, which were documented by the commission, meet the high threshold required for proof of crimes against humanity in international law”. Given this, prosecution by the ICC would be one way of holding the senior North Korean leaders with overall responsibility for these crimes accountable – in particular, the current Supreme Leader Kim Jong-un.

There are, however, significant practical hurdles that limit the potential here for a successful ICC prosecution. The first is a jurisdictional limitation. As North Korea is not a State Party to the Rome Statute, the jurisdiction of the Court would need to be established through a referral by the UN Security Council.   China – as a Permanent Member of the Security Council – would be able to veto any such referral. It is difficult to realistically imagine a scenario in which China would allow the North Korean situation to be referred to the ICC.

A possible alternative would be for the UN General Assembly to effectively bypass the Security Council veto by using the Uniting for Peace mechanism. This possibility was referenced by the most recent Report of the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea, however it fails to address the very real question of whether prosecution could realistically succeed without the practical cooperation of China.

The second hurdle is a practical limitation based on the present record of the ICC. At an international level justice is both incredibly slow and incredibly expensive. In fifteen years the ICC has managed to convict just eight people, yet it operates with a programme budget for 2017 of €141.6 million and 800 staff. At the ICC prosecutions are measured in years, with the ten situations currently under investigation each having been formally before the ICC for an average time of 7.5 years. Even if Kim Jong-un was arrested tomorrow it would take many years before a trial before the ICC would even commence. During this time he would be detained in the ICC Detention Centre in The Hague in conditions undoubtedly far superior to those experienced by Otto Warmbier during his imprisonment.

Establishing an Ad Hoc Tribunal

An alternative to prosecution by the ICC is for the UN Security Council to consider establishing an ad hoc tribunal to prosecute individuals such as Kim Jong-un. These tribunals are special courts that are created exclusively to prosecute atrocities arising out of specific conflicts, with the Nuremberg and Tokyo Tribunals after World War II being the first examples. More recently, ad hoc tribunals have been established in relation to the former Yugoslavia, Rwanda, Cambodia, Sierra Leone, East Timor, Chad and Lebanon. While these ad hoc tribunals have somewhat mixed records, they do potentially offer a number of advantages including an institutional structure tailored specifically to the North Korean situation and the potential for a greater number of individual prosecutions. Unfortunately, the key hurdle is precisely the same as for any ICC prosecution. It is the UN Security Council that must agree to establish any ad hoc tribunal, and it is difficult to realistically see China agreeing to this at the present time.

 Prosecuting Treaty Violations

An alternative option may be to take legal action against the State, as opposed to particular individuals. Legal action could be taken against North Korea alleging breaches of a number of treaty obligations particularly, in the case of Otto Warmbier, obligations relating to the treatment of prisoners. North Korea (perhaps surprisingly) is a party to a number of key international human rights treaties, most importantly in this context the International Covenant on Civil and Political Rights which provides for the right to a fair trial (Article 14) and the right to be treated with humanity, dignity and respect while in detention (Articles 7 and 10).  The UN Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea, Tomás Ojea Quintana, has publicly observed that in Otto Warmbier’s case “His ordeal could have been prevented had he not been denied basic entitlements when he was arrested, such as access to consular officials and representation by an independent legal counsel of his choosing”.

The key hurdles to this approach are twofold, concerning jurisdiction and realistic outcomes. In relation to jurisdiction, it is difficult to identify an appropriate international body that might actually be able to exercise jurisdiction. The International Court of Justice might be one option, and as a Member State of the United Nations, North Korea is ipso facto a party to the Statute of the ICJ. However, the ICJ Statute provides that jurisdiction is based upon the consent of the States appearing before it. In contentious cases this jurisdiction can arise in three ways: (1) States can agree to refer matters to the Court through a Special Agreement; (2) States can lodge a declaration recognising the jurisdiction of the Court as compulsory; or (3) Jurisdiction can be conferred by a particular treaty or convention. None of these pre-conditions have been met, or appear likely to be met in the future, in the specific case of human rights violations in North Korea.

Another possible route would be lodging a complaint with one of the United Nations human rights treaty bodies, such as the UN Human Rights Committee. The UN Human Rights Committee is able to hear both individual communications and state-to-state complaints concerning violations of the International Covenant on Civil and Political Rights by State parties to the First Optional Protocol to the International Covenant on Civil and Political Rights. The fact that North Korea has not signed the First Optional Protocol immediately removes this as a potential option.

The second hurdle here is identifying what realistic outcomes would actually be achieved through taking international legal action against North Korea for breaches of treaty obligations. The enforcement of international law decisions against uncooperative States is notoriously difficult, and while a favourable judgment may provide a symbolic victory, it would likely do little to actually change conditions within North Korea. Indeed, it may ultimately prove counter-productive by hardening existing positions, further isolating North Korea, and making any possible future attempts at cooperation even more futile.

Conclusion

It has been three years since the UN Commission of Inquiry published its report, providing clear evidence of crimes against humanity being committed in North Korea. Since that time there is no evidence that the situation has improved. Indeed, the death of Otto Warmbier is a reminder of the seriousness of the human rights situation in North Korea, and the need for urgent action.

Unfortunately, the prospects for international justice do not look particularly promising at this point. The best option appears to be the criminal prosecution of senior North Korean leadership – including Kim Jong-un – through either referral to the International Criminal Court or the creation of an ad hoc tribunal. However, both options face significant hurdles, not least of which is the potential for China to veto any such efforts.

The North Korean situation starkly highlights the very real problems with delivering justice at an international level. The current system of international justice and accountability is woefully inadequate. But what is the alternative? To give up and admit that international justice is illusory and unachievable is simply not an option. The world cannot and should not walk away from trying to achieve a measure of justice for Otto Warmbier and the other victims of the North Korean regime. They all deserve much better than that.

Lorraine Finlay is a Law Lecturer at Murdoch University, lecturing in constitutional law and international human rights. She is also a PhD Candidate at the University of Queensland and a former Singapura Scholar at New York University and the National University of Singapore.