South Ossetia: Separatist Client or Sovereign State?

South Ossetia: Separatist Client or Sovereign State?

By Erich Greiner

             This past August marked a stark anniversary in global affairs. For ten years Russian Federation forces have occupied territory within the state of Georgia, after brief but intense combat operations between the Georgian military and separatist fighters of the “breakaway provinces” of South Ossetia and Abkhazia.[1] According to the European Union, the five-day conflict resulted in the deaths of 170 Georgian military personnel, 14 Georgian law enforcement officers, and 228 Georgian civilians.[2] Nearly 289,000 Georgians are estimated as remaining “internally displaced persons,” due to the Georgia-South Ossetian conflicts of the 1990s and 2008, according to the Central Intelligence Agency’s World Fact Book.[3] Russian forces, by comparison, sustained 283 casualties (wounded or killed) and South Ossetian militants and civilians sustained 365 casualties.[4]

The Russian Federation is still attempting to tell its version of the story of the 2008 conflict and its subsequent actions following the fighting. Pro-Russian outlets describe their involvement and continued occupation as little more than a peace-keeping effort, as tensions between the South Ossetian separatists and the Georgian government reached their boiling point that August.[5] They adopt the language of sovereignty and self-determination on behalf of the South Ossetians and Abkhazia. In fact, in an interview done by Sputnik International News on the eve of the ten-year anniversary of the Russian occupation, the former foreign minister and prime minister of Abkhazia, Sergei Shamba, stated that Georgian forces had been surrounding the capital of South Ossetia, before initiating the fighting by firing upon it with artillery.[6] He also claims that international negotiators had already sided with Georgia and were unresponsive to Georgian aggression.[7] Shamba goes on to describe the Russian government as previously having provided humanitarian aide to Abkhazia by rebuilding the railroads of the region, so that they could better mobilize troops to defend against Georgian incursions[8] into the regions recognized as independent states by Russia, Nicaragua, Venezuela, Nauru[9], and Syria[10].

However, an examination of the history of Russian-Georgian relations indicates motivations well beyond simple humanitarian support. In fact, Russian interest in the region dates to 1918, when Georgia gained its independence from the Russian Empire.[11] Only three short years later, the Red Army invaded Georgia and established dominion over the country, establishing Georgia and Abkhazia as Soviet Socialist republics.[12] South Ossetia was created by the Soviet regime only one year later, in 1922.[13] This continued until the end of the Cold War, and in 1990, South Ossetia declared independence from Georgia.[14]

Shortly thereafter, Georgia reestablished independence in April 1991.[15] Then, from 1993-1994, Abkhazian separatist forces engaged in armed conflict with the Georgian Army until a ceasefire was negotiated and Russian forces occupied the region.[16] Since that time, the continued Russian occupation has been a source of tension, including President Putin’s threatened military action, accusing Georgia of aiding Chechen insurgents; Russia’s refusal to have peacekeepers comply with Georgian visa requirements; firing upon an unmanned Georgian drone; and finally, when hundreds more troops were deployed in 2008, leading to the South-Ossetian conflict.[17]

Finally, though both factions have adopted a ceasefire mediated on behalf of the European Union by then-French President Nicolas Sarkozy, Russian Federation troops have blithely ignored its stated principles. Especially at issue is the fifth principle of, “withdraw[ing] to the positions held before hostilities began. . .” and restricting  “additional security measures” to the borders of South Ossetia.[18] In fact, Russian troops have pushed ever further into the heart of Georgia, expanding well past the disputed territory of South Ossetia to occupy almost twenty percent of land recognized as Georgian territory.[19] This practice of “borderization” through the establishment of illegal military checkpoints has limited Georgians’ freedom of movement.[20] There are now 19 Russian outposts in Georgia.[21]

Georgian territory is uniquely strategically valuable to the Russian Federation as well. Turkey is to its immediate west, Iran is to its South, and both the Caspian Sea[22] and Georgia’s Baku-Supsa Pipeline[23] enable the sale of oil. Georgia is also a potential new member state of NATO, and has been major ally to the United States’ war effort in Afghanistan.[24]

Though Russia’s other encroachments, such as those into Crimea[25], and in potential election interference[26] combined with clear violations of the terms of the cease-fire with Georgia cast a long shadow over the South Ossetian secessionist movement, the international community has still had to wrestle with the concepts of statehood, self-determination, and their relationship to recognition.[27]  When the traditional elements of statehood are considered: territory, recognition by other states, and population, the analysis of the status of South Ossetia is indeed complicated and troublesome.[28]

The international community at large has not recognized South Ossetia as its own sovereign state. The recognition of the current territorial boundaries of Georgia and acceptance of Georgia as a member state of the United Nation has de facto rendered South Ossetia’s declaration of independence void.[29] Additionally, as of April 15, 2008, the UN Security Council has also resolved to honor Georgia’s territorial claims—to the exclusion of all others.[30] However, enough land may be controlled by South Ossetia within its disputed borders to satisfy the territorial requirement of a state. [31]  Moreover, it is to be noted that South Ossetia has also been recognized in limited capacity through its entrance into contract and recognition by five other states, and as party to the cease-fire agreement that ended the skirmishes in the 2008 conflict.[32] Still, this has not brought full recognition of South Ossetian sovereignty by the international community, though the people of South Ossetia retain the right to self-determination.[33] Furthermore, though the right of secession of peoples of a recognized-state has historical precedence, it has generally been understood in practice as limited to cases of colonialism or in cases of extreme humanitarian crisis, such as genocide or ethnic cleansing. [34]

This reasoning is also why the Russian and South Ossetian argument in the guise of self-determinism analogous to the United States’ intervention in Kosovo has failed.[35] There, is no concern such as the Albanian ethnic cleansing of ethnic-Serbs in Kosovo that would mandate emergency humanitarian intervention or trigger a right of secession for the South Ossetian people.[36] Furthermore, whereas the recognition of Kosovo was hindered by Russia’s singular veto on the Security Counsel; whereas Kosovo had been classified a United Nations protectorate; whereas Kosovo had recognition from multiple international bodies including the United Nations, the European Union, NATO, the Western Members of the Kosovo Contact Group, and the Organization for Security and Co-operation in Europe, along with 46 United Nations member countries on an independent basis, South Ossetia has no similar claim.[37] As of now, South Ossetia, and its sister Abkhazia will likely remain “entit[ies] short of statehood”.[38]

 

[1] 2008 Georgia Russia Conflict Fast Facts, CNN (Apr. 3, 2018), https://www.cnn.com/2014/03/13/world/europe/2008-georgia-russia-conflict/index.html.

[2] Id.

[3] Middle East: Georgia, The World Factbook, Central Intelligence Agency (Oct. 17, 2018), https://www.cia.gov/library/publications/the-world-factbook/geos/gg.html

[4] 2008 Georgia Russia Conflict Fast Facts, CNN (Apr. 3, 2018), https://www.cnn.com/2014/03/13/world/europe/2008-georgia-russia-conflict/index.html.

[5] How Russia Recognized the Independence of Abkhazia and South Ossetia, Sputnik News (Sept. 8, 2018,     9:38), https://sputniknews.com/interviews/201808081067034864-how-russia-recognized-abkhazia-south-ossetia-independence/.

[6] Id.

[7] Id.

[8] Id.

[9] Countries that recognized South Ossetia’s and Abkhazia’s Independence, TASS (May 29, 2018, 4:59 PM), http://tass.com/world/1007058.

[10] Georgia Severs Relations With Syria For Recognizing Abkhazia, South Ossetia, Radio Free Europe Radio Liberty (May 29, 2018, 5:30 GMT), https://www.rferl.org/a/georgia-syria-establishes-diplomatic-relations-with-abkhazia-south-ossetia/29257063.html.

[11] 2008 Georgia Russia Conflict Fast Facts, CNN (Apr. 3, 2018), https://www.cnn.com/2014/03/13/world/europe/2008-georgia-russia-conflict/index.html.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Background: Six-point peace plan for the Georgia-Russia Conflict, Reliefweb (Aug. 15, 2008), https://reliefweb.int/report/georgia/background-six-point-peace-plan-georgia-russia-conflict.

[19] John Haltiwanger, Russia is quietly seizing territory in Georgia as it warns of a ‘horrible conflict’ if the Eurasian country joins NATO, Business Insider (August 7, 2018 5:11 PM), https://www.businessinsider.com/russia-quietly-seizing-territory-in-georgia-10-years-after-the-war-2018-8.

[20] Id.

[21] Id.

[22] Id.

[23] Andrew North, Georgia accuses Russia of violating international law over South Ossetia, The Guardian (Jul 14, 2015, 7:29 EDT).

[24] John Haltiwanger, Russia is quietly seizing territory in Georgia as it warns of a ‘horrible conflict’ if the Eurasian country joins NATO, Business Insider (August 7, 2018 5:11 PM), https://www.businessinsider.com/russia-quietly-seizing-territory-in-georgia-10-years-after-the-war-2018-8.

[25] John Simpson, Russia’s Crimea plan detailed, secret and successful, BBC News (Mar. 19, 2014), https://www.bbc.com/news/world-europe-26644082.

[26] New York Times: Russian hacking and Influence in the US Election, https://www.nytimes.com/news-event/russian-election-hacking; Rick Noack, Everything we know so far about Russian election meddling in Europe, Wash. Post (Jan. 10, 2018), https://www.washingtonpost.com/news/worldviews/wp/2018/01/10/everything-we-know-so-far-about-russian-election-meddling-in-europe/?utm_term=.d51eb453936d.

[27] South Ossetia, Oxford Public International Law (January 2013), http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e2068,

[28] Statehood (international law), Wex, Cornell Law School: Legal Information Institute, https://www.law.cornell.edu/wex/statehood_%28international_law%29

[29]  See Supra. note 27 ¶¶ 18

[30] Id..

[31] Id., at ¶¶ 20.

[32] Id., at ¶¶ 35.

[33] Id., at ¶¶ 25.

[34] Id., at ¶¶ 32.

[35] Sally McNamara, Russia’s Recognition of Independence for South Ossetia and Abkhazia Is Illegitimate: They Are Not Kosovo, The Heritage Foundation: Report Europe (Aug. 28, 2008), https://www.heritage.org/europe/report/russias-recognition-independence-south-ossetia-and-abkhaziais-illegitimate-they-are

[36] Ethnic Cleansing and Atrocities in Kosovo, PBS: War in Europe, https://www.pbs.org/wgbh/pages/frontline/shows/kosovo/cleansing/.

[37] See Supra. Note 35

[38] South Ossetia, Oxford Public International Law (January 2013), http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e2068, at ¶¶ 18

A Look at Prison Labor as a Tool of Control

A Look at Prison Labor as a Tool of Control

What might incentivize a government to adopt the use of Prison Labor? A State benefits from the use of Prison labor as (1) a tool of control (i.e. a method of re-education for society), and (2) market incentives from the global demand for Non Citizen bodies. Prison labor has been used by a variety of governments, for the above reasons. Here, we can look at some similarities in the use of prison labor in the United States and the People’s Republic of China[i].

Prison Labor[ii] is used here as a generic term to encompass the various forms of forced labor by people who are incarcerated or detained by a state.[iii] Here, we take a look at its use in the United States of America and the People’s Republic of China. Between “Prison Labor” and “Forced Labor,” China distinguishes between Criminal Sentencing and Administrative detention. An individual is incarcerated (Prison Labor) if they are held due to a criminal sentence. Under administrative detention, the individual is only detained in the labor system (forced labor), but not technically a prisoner. This distinction comes into play when granting protections under the state’s employment laws. Likewise, in the US, there is the same distinction between prison labor by incarcerated workers, and detained migrants exploited into situations of “forced labor.” Again, the distinction matters when seeking protection and rights under employment law.

The US and China share the additional use of criminal punishment as a tool to signal control in society. As a method of re-education, the use of prison labor in China has been as forthright as “re-education through the labor system.”[iv] Comparatively, although less direct, the pursuit of societal control through prison labor is also found in the US. Drawing the same parallels where the “re-education” aspect of prison labor is less for the individual’s rehabilitation, and more so to educate society. Both systems distinguish the criminal as a deviant from society and being outside of society, the criminal is outside the state’s protection—while in the state’s care. Lastly, when it comes to market incentives, prison labor is a billion-dollar industry. There is a global market where “Non Citizen Bodies” may refer to, but is not limited to, documented and undocumented migrant labor. They are vulnerable to labor exploitation because they are deprived of the protection of the state (under employment law) while under the state’s care (incarcerated or detained).

(Re)Educating Society with Prison Labor

Theoretically, society justifies punishment by alluding to its purpose in: deterrence, retribution, rehabilitation, restitution, and incapacitation. A leading sociologist of crime and punishment[v], David Garland describes an additional purpose, criminal punishment, as an authoritarian tool to signal control—“that crime is an aberration” and this segregates the criminal from the rest of society.[vi] Distinguishing the criminal as a deviant from society is an educational tool of the State. This additional use of criminal punishment establishes “a kind of sentimental education, generating and regenerating a particular mentality and particular sensibility” in society.[vii] The educational purpose is distinguished from “deterrence” because it is not just the punishment that is the tool, it is the criminal justice system and its ritual in trial, sentencing, and execution of punishment as a “formalized embodiment and enactment of the conscience collective,” that is, what we believe to be what our representative governance calls for.[viii] The “international leasing” of inmates and prison space in the Belgian-Dutch Prisoner Exchange was a result of normalizing the prison labor industry— an intended product of the State’s sentimental education.

The utilization of criminal punishment as a tool of societal education shares parallels with another giant in the forced labor industry, the People’s Republic of China. In 2017, the US-China Economic and Security Review Commission identified three key challenges to US Exposure to Forced Labor Exports from China. The Commission identified: “difficulty of meeting verification requirements for prison labor products and inadequate cooperation offered by Chinese authorities, the status of the re-education through labor system, and exploitative virtual labor.”[ix] Of the three, we will focus on the status of “re-education through labor system.”[x]

As the global stage is being prepared to normalize forced labor for the incarcerated, the segregation of society from the state-determined deviants broadens. Historical trends indicate that marginalized communities are particularly at risk, classified as “deviants,” and thus somehow are deserving of their punishment. Vulnerable groups include, but are not limited to, the LGBTQ community, non-majority ethnic groups, and sex workers. One of the demands of the National Prisoners Strike, a 19-day strike in response to the 2018 riot in Lee Correctional Institution[xi], was a call for recognition of the disproportionate incarceration of people of color.[xii] The strike also called attention to the disparity between compulsory prison labor where laborers earn as little as 4 cents an hour[xiii] for a multi-billion dollar, for-profit prison industry.[xiv]The US is estimated to have nearly 2.3 million people serving time.[xv]Recently, a United Nations Panel estimated nearly a million Uighurs, an ethnic minority in China, are being detained in reeducation programs in Xinjiang, China.[xvi]

China’s Re-Education through Labor System (RTL) was officially abolished in 2013 and replaced by the Custody and Education Centers (C&E). Asia Catalyst, a nonprofit based in New York, reported the new C&E system as “almost identical” to the abolished RTL. They share similar themes of punishment for the sake of “education” and clients are detained for long periods of time without any form of judicial oversight with forced labor. [xvii] Similar to debates over the RTL system, Zhu Zhengfu, Vice President of the All-China Lawyers Association and a member of the Chinese People’s Political Consultative Conference, proposes a Constitutional Review of C&Es because he argues that C&Es are legally at odds with Legislation Law and legislative jurisdiction.

Comparatively, in the United States, prison labor is constitutional as “Penal Labor” under the Thirteenth amendment. Where the Thirteenth Amendment forbade slavery and involuntary servitude, it left a convenient exception for “punishment for crime whereof the party shall have been duly convicted.”[xviii] Harking back to the justifications for criminal punishment, labor was seen as an apt punishment. Although Levin may examine the prisoner as “the worker,” the United States courts have distinguished the prisoner from the definition of “employee” under the FLSA. [xix] The court continues to hold in various cases that prison labor, voluntary or not, is not an employment relationship within the meaning of the FLSA. [xx] Stateside, the prison laborer is not entitled to employee protections under the law from safety to wage protection. The US distinguishes the status of the incarcerated worker in prison labor from the status of an “employee” and therefore deprives them of protection by the state granted under employee law, while in the state’s care.

Prison Labor and the Global Market for Non-Citizen Bodies

Benjamin Levin[xxi] examines the Belgian-Dutch prisoner exchange through multiple lens, one of which is “democracy, sovereignty, and the role of community in criminal punishment.” In 2009, Belgium agreed to send Belgian inmates to Dutch prisons in the Netherlands in exchange for a yearly payment. Viewing the prisoner as a worker, Levin questions the role of prison labor and its relationship with transnational labor and also the practice of leasing inmates and prison space. [xxii]Additionally, Levin examines the frame with a question of exceptionality, whether the global market possibility of prisoners be viewed as something conceptually new and distinct or simply a repackaged and just an exploitative version of the domestic incarceral institution. Furthermore, Levin examines the “role of prison labor in the United States and the potential doctrinal relationship between its regulation and the treatment of transnational labor.

Categorizing detention, a formal sentence to forced labor can be imposed by a court in a criminal sentence in the People’s Republic of China. This is separate from Reeducation Through Labor (RTL) which is a form of administrative detention, imposed by officials where no legal due process is required. The government defines RTLs are distinct from prisons and therefore, the labor prescribed is not prison labor. However, the US Commission rejects that definition and defines all forced labor detention facilities in China to be prison labor facilities. [xxiii]

Similar to China’s distinction between Criminal Sentencing and Administrative detention, the United States also insists on distinguishing between the forced labor of citizen inmates and the utilization of deprivation schemes for “voluntary” work by detained noncitizen bodies. A class-action lawsuit (detainees at the Stewart Detention Center) against CoreCivic (a billion-dollar private prison industry) alleges the practice of “deprivation schemes” where detainees are deprived of basic necessities to incentivize labor.[xxiv] Where China distinguishes between criminal sentencing and administrative detention, the United States distinguishes between due process for a Citizen and non-Citizen. Akin to the Belgium-Dutch prisoner exchange, there is a market for noncitizen bodies in the global market. Unlike the cooperative leasing of bodies by both States in the Belgium-Dutch Exchange, the United States unilaterally detains immigrants and operates a system of forced labor. Many of the detained immigrants “accede to deportation simply to escape intolerable conditions of confinement, even when they have valid claims to remain in the United States,” [xxv] such as asylum.

With similar motives in societal education and profit behind their prison labor systems, where do the US and China lie in respect to one another’s use of Prison Labor? The 2008 Memoranda of Understanding Between the US and China Regarding Prison Labor recorded a hearing before the US-China Economic and Security Review Commission.[xxvi] The Commission found that the degree of non-compliance by China and the degree of enforcement by the US resulted in a bilateral unwillingness to pursue the issue of prison labor. [xxvii]Commissioner Wessel found that under the MOU and the SEC, the US was within their rights under the Trade Agreement to detain disputed products. The 1992 Memorandum of Agreement (MOU) was an agreement that prison-made products will not be exported from China to the United States. The 1994 Statement of Cooperation (SOC) follow up and elaborated on the investigation and resolution procedures for these alleged cases. Pursuant to the MOU, if the US has reason to believe a product facility is a prison they may request information about the facility. Pursuant to the SOC, if the Chinese government does not respond within 60 days, the US may detain products. However, the Commissioner found that the US was not detaining products under this reasoning despite having the tools to do so. Although China’s non-compliance (failure to respond in a timely manner[xxviii], deferring to local authorities, etc.) contributed to various open and unresolved cases—the Commissioner found that the cases were being unresolved as a result of the unwillingness by the US to pursue the matter as well. In current day affairs, advocates call on the US “to restrict the financial assets of Chinese government officials”[xxix] involved in the repression of Uighurs in Xinjiang. However, it is indeterminable whether the US will be willing to act.

 

 

[i] Prison labor in China is also known as laogai (reform through labor)

[ii] Also known as “Penal Labour”

[iii] The two are distinct in many ways, but for the purpose of this piece, “prison labor” is used as an umbrella term alongside “forced labor” in the context that both are used as tools of control and they have the same market incentives for the State utilizing them.

[iv] Dotson, John and Vanfleet, Teresa. Prison Labor Exports from China and Implications for US Policy. US-China Economic and Security Review Commission Staff Research Report. 2014. (2) (China distinguishes between Criminal Sentencing and Administrative detention.)

[v] David Garland is the Arthur T. Vanderbilt Professor of Law in the School of Law and also Professor of Sociology in NYU’s Department of Sociology. Considered one of the world’s leading sociologists of crime and punishment, he graduated from the University of Edinburgh with a degree in Law and with a Ph.D in Socio-Legal Studies; he has a Masters in criminology from the University of Sheffield. He has authored numerous award-winning books on crime and punishment and has been awarded doctorates from various Universities due to his contributions to the field.

[vi] Garland, David. Punishment and Modern Society, supra note 11, at 67-68 (emphasis added. Cf. Overton v Bazzetta, 539 U.S. 126, 143 (2003) (Thomas, J., concurring) (discussing the rise of the prison in the United States as a means of segregating “the ‘deviant’ (i.e., the criminal)” from the rest of society).

[vii] Id.

[viii] Id.

[ix] Bowe, Alexander. US Exposure to Forced Labor Exports from China: Developments since the US Trade Facilitation and Trade Enforcement Act of 2015. US-China Economic and Security Review Commission (2017).

[x] Id.

[xi] Lee Correctional Institution is a maximum security prison in South Carolina, US.

[xii] Press Release: National Prisoners Strike August 21st – September 9th 2018. Web. https://www.dropbox.com/s/r5cr546jlscgkhj/Prison%20Strike.pdf?dl=0

[xiii] Citing a report by The Associated Press on the hourly rate for prison labor in Louisiana for inmate construction work.

[xiv] Barron, Laignee. Here’s Why Inmates in the U.S. Prison System Have Launched a Nationwide Strike. Time Magazine. 22 Aug 2018. Web. http://time.com/5374133/prison-strike-labor-conditions/

[xv] Wagner, Peter and Sawyer, Wendy. Mass Incarceration: The Whole Pie. Prison Policy Initiative. 14 Mar 2018. Web. https://www.prisonpolicy.org/reports/pie2018.html

[xvi] Cumming-Bruce, Nick. U.N. Panel Confronts China Over Reports That It Holds a Million Uighurs in Camps. New York Times. 10 Aug 2018. Web. https://www.nytimes.com/2018/08/10/world/asia/china-xinjiang-un-uighurs.html

[xvii] Asia Catalyst, “‘Custody and Education’: Arbitrary Detention for Female Sex Workers in China,” 7 Dec 2013. Web. http://www.asiacatalyst.org/wp-content/uploads/2014/09/AsiaCatalyst_CustodyEducation2013- 12-EN.pdf

[xviii] U.S. Const. amend. XIII, §1.

[xix] Bennett v. Frank, 395 F.3d 409, 410 (7th Cir. 2005). See also, Tourscher v. McCullough

[xx] See also, Danneskjold v. Hausrath, 82 F.3d 37, 44 (2d Cir. 1996) (“[P]rison labor is not in all circumstances exempt from the FLSA and that an economic reality test is to be used in determining whether payment of FLSA wages is required.

[xxi] Benjamin Levin is an Associate Professor of Law at the University of Colorado Law School. https://lawweb.colorado.edu/files/vitae/levin.pdf

[xxii] Levin, Benjamin. Inmates for Rent, Sovereignty for Sale: The Global Prison Market. Southern California Interdisciplinary Law Journal. 512. University of Southern California (1992)

[xxiii] Dotson, John and Vanfleet, Teresa. Prison Labor Exports from China and Implications for US Policy. US-China Economic and Security Review Commission Staff Research Report. 2014. (2)

[xxiv] Shoichet, Catherine E. Lawsuit alleges ‘forced labor’ in immigrant detention. CNN. 17 April 2018. https://www.cnn.com/2018/04/17/us/immigrant-detention-forced-labor-lawsuit/index.html Citing Barrientos v Core Civic, No. 4:18-CV-00070 (M.D. Ga. April 17, 2018). Web. https://projectsouth.org/wp-content/uploads/2018/04/Complaint-Barrientos-v.-Core-Civic.pdf

[xxv] Barrientos v Core Civic,. at 5.

[xxvi] US-China Economic and Security Review Commission. The Memoranda of Undersatnding Between the US and China Regarding Prison Labor. One Hundred Tenth Congress. 19 June 2008.

[xxvii] Memoranda of Understanding Between the US and China Regarding Prison Labor, at 49.

[xxviii] Some responses took up to a decade.

[xxix] Magnitsky Act provisions apply globally authorizing the government to sanction human rights offenders. This act is a bipartisan bill passed in 2012 intended to punish Russian Officials. This act was the subject of one of the Trump Tower Meetings in 2016 between lobbyist and Russian lawyer Natalia Veselnitskaya and Donald Trump Jr.

A Perspective Regarding the Unification of Korea and it’s Implications

A Perspective Regarding the Unification of Korea and it’s Implications

By Haeyeon Kim

Democratic People’s Republic of Korea (DPRK) and Republic of Korea (ROK) are still at war, in an armistice, with last incidence of casualties occurring in 2015, because the Korean war never ended, international humanitarian law and Geneva conventions still apply to both Koreas.[i]

Historically, DPRK increases military tension in the region to gain a better control of situations in the region. This was demonstrated in 2010 when DPRK sunk South Korean  naval ship, killing several sailors, and again in 2015 when DPRK deployed over 70% of their submarines to increase military tension in the region, which lead to summits.[ii] Once some sort of an agreement was reached, DPRK eased their military presence, showcasing DPRK’s use of their ability to destabilize the region by using military presence as a bargaining chip. DPRK’s ability to increase tension relies on the fact that they have nuclear capacities and its geographical location. DPRK cannot denuclearize without losing the ability to pose a serious threat within the region. It’s their military, in addition to the potential nuclear escalation that is allowing these repetitive tantrums to have an impact. Despite DPRK’s violations of United Nations Security Council Resolutions (UNSCR) and a variety of other international laws, such as International Covenant on Civil and Political rights (ICCPR) and Convention Against Torture, Korean unification is continuing progress, with warming unilateral relations between ROK and DPRK.[iii]

Although previous peace talks with DPRK have failed, the current ROK President Moon approaches this issue with peace.[iv] Ever since President Moon took the office, the tensions have decreased significantly, removing all propaganda from both sides, and fully restoring their military communications on the western part of the peninsula.[v] Both leaders also declared and signed that they will work towards an ambitious goal of unification of Koreas, promoting peace while ceasing all military hostilities.[vi]

At the moment, the ambitious goal in on track, but the implications of the reunification process are alarming. First, North Korea stated that they would only denuclearize if U.S would return the gesture.[vii] This is problematic because there is a precedent where the former North Korea leader signed the NPT (Nuclear Proliferation Treaty) after receiving international aids to their country.[viii] Second, as the relations between US and DPRK improve, US intelligence indicates that during the peace talks, DPRK is escalating their efforts to conceal their nuclear activity. DPRK builds approximately six nuclear warheads annually, and has not stopped in 2018 during the peace talks.[ix]

DPRK is unlikely to abandon their nuclear capabilities unless the leadership of DPRK is forgiven for their crimes. DPRK will need denuclearization to bargain. If President Trump were to reciprocate DPRK’s denuclearization, and the long-waited unifications were to occur, will the international community forgive DPRK leadership for their violations of international law and norm? The United Nations Human Rights Council (UNHRC) sent a report condemning DPRK for human rights violations and how they should be tried at the International Criminal Court (ICC).[x] DPRK, ROK as well as U.S do not recognize ICC authority.[xi]

If the unification were to occur, DPRK will have to mitigate their atrocities and violations with peace promoting activities, gradually preparing their population for the world. DPRK’s current situation regarding unification process can mirror USSR’s dissolution scenario, which would implicate unification of Korea and perhaps DPRK’s leader going unpunished.

Mikhail Gorbachev’s “glasnost” and “perestroika” programs restructured and made USSR more transparent, and slowly readied the soviet people for the dissolution of their state.[xii] USSR committed themselves to treaties which lowered the numbers of nuclear weapons such as anti-ballistic missile treaty (ABM) and ceased many hostile acts, globally lowering military tensions.

Similar to USSR in late 80s to early 90s, DPRK is easing military tensions and is taking actions which promote peace within the region, such as taking out the landmines between DPRK and ROK.[xiii] Further, both Koreas agreed to participate as one team in Asian games to symbolize their cooperation.[xiv] However, similar to USSR, in order for DPRK to truly demonstrate their commitment to peace, they would need to begin denuclearization or agree to lower the numbers of their nuclear weapons. Making nuclear weapons, just to denuclearize seems wasteful in terms of resources, but it is the most promising gesture for them to the international community that they are serious about promoting peace and stabilizing the region through unification. Although unlikely scenario, if DPRK were to follow Gorbachev’s footsteps, perhaps they can avoid having to answer for their crimes.

Similar to USSR, after peace promoting, internal restructuring and some denuclearization, perhaps DPRK is willing dissolve, leading to unification which will lead to one Korea. DPRK regime, similar to USSR regime may be allowed to use this as leverage to avoid prosecution/tribunals, earning favors from many within the global community for bringing peace and stabilizing the region.

Unlike the dissolution of USSR, when DPRK dissolves, the only court besides a specialized tribunal that has authority to prosecute the leaders of DPRK is the International Criminal Court (ICC). Some speculate that Gorbachev was never prosecuted because USSR dissolved before ICC came into existence.[xv] ICC was formed in 2002, while USSR dissolution occurred in 1990-1991. DPRK does not recognize ICC’s authority, and will assert national sovereignty. Although DPRK will no longer exist after their dissolution, ROK does not recognize ICC either. Furthermore, depending on the circumstances of DPRK’s dissolution, because it would stabilize the region in such a significant manner, if a specialized tribunal were to be created for DPRK, the tribunal may get vetoed before being established by a United Nations Security Council (UNSC) member state.

Certainly, Russia supports Korea unification in order to directly sell natural gas, and gain direct access to the Korean market, while lowering their security concerns on their boarders. China and Japan are most likely to support the unification since it lowers their security concerns while increasing their opportunities to gain financially. None of these countries have much to gain with DPRK’s existence. U.S may not be too fond of the unification depending on how the unification may impact their influence within the region, considering ROK has been a loyal and old ally to the U.S. Internationally, unification of Korea would also curb DPRK’s illicit arms sales and weapons technology.[xvi] These approvals from neighboring countries have weight because, historically, it led the former USSR Chairman Gorbachev to avoid prosecution. Having nuclear weapons to bargain with will also increase the likelihood of the global community’s acceptance and silent pardon of the DPRK regime because having a unified Korea would be much better than having unstable DPRK with nuclear weapons. Pros simply outweigh the cons, when considering global peace.

Leaders of DPRK might be attempting to avoid their responsibilities by making the region impossible to stabilize without their consent. Countries surrounding DPRK, would all benefit from unification of Korea and it may allow Kim Jong Un to avoid punishment for violations of law during his leadership. In addition, according to Goldman Sachs, a united Korea is expected to surpass Japan and Germany in GDP with flourishing foreign investment programs for North Korean redevelopment, which may allow DPRK leadership some positive light within the region for bringing prosperity as well as peace.[xvii]

The unification of the Koreas would mean the region will become more stable. China, Japan, South Korea, Asia and U.S will be able to enjoy a lower burden in the region, but is that enough to forgive DPRK leadership of their crimes? If so, the implications are alarming.

If DPRK leadership promote peace and stabilize the global community by dissolving themselves, similar to USSR, and avoid answering for their crimes; it could indicate that in the name of peace and stability, dangerous law violating leaders can avoid punishment if their actions are counterbalanced by the positive impact of stabilization and peace that they are responsible for destabilizing in the first place.

DPRK leadership’s violations could be pardoned by unified Korea’s new leader, and assuming that the new Korea would not recognize ICC authority, it is likely that former DPRK leadership can get away with their crimes in the name of national sovereignty. Furthermore, if a UN tribunal were to be established, UNSC members would need a consensus for its creation. If international laws are not enforced in this scenario, simply because a country does not recognize ICC authority, international laws’ legitimacy will decrease significantly.

In contrast to Mikhail Gorbachev, after the Yugoslavian conflict, the violators were prosecuted at the International Criminal Tribunal for the former Yugoslavia (ICTY), a UN specialized tribunal that was held for the conflict.[xviii] According to Chapter 7 of the UN charter, specialized tribunals can take place for criminals to answer for their war crimes.[xix] Reasonably, a military tribunal similar to ICTY seems inevitable, but considering how ICTY rulings were criticized for being bias and lack of understanding, a similar but different approach may be necessary.[xx] If DPRK leaders were to be prosecuted at a new tribunal, DPRK leadership would not have incentive to promote the unification or to denuclearize. Therefore, in order for unification to occur, it is likely that a tribunal may have to be avoided.

At which point is it correct to forgive atrocities in order to bring peace? Currently, unification will not occur without mutual consent. If DPRK leaders were to be prosecuted, they will simply walk away from negotiations and summits. If a war is to occur, considering DPRK’s nuclear arsenal, casualties can be in millions. As an observer, one awaits to see whether DPRK leaders will be held accountable for their crimes or if legitimacy and enforcement of international law will be dismissed in the name of peace.

 

[i] ‘Loyalty race’ leads to landmine attack, DailyNK (2015) https://www.dailynk.com/english/loyalty-race-leads-to-land-mine-at/

[ii] Staff and Agencies, North Korean Submarine Missing and Presumed Sunk, The Guardian (2016) https://www.theguardian.com/world/2016/mar/13/north-korean-submarine-missing-and-presumed-sunk-say-reports and North Korean Artillary hits South Korean Island, BBC (2010) https://www.bbc.com/news/world-asia-pacific-11818005

[iii] Rival Koreas Agree to Military, Red Cross talks for Peace, CNBC (2018) https://www.cnbc.com/2018/06/01/rival-koreas-agree-to-military-red-cross-talks-for-peace.html

[iv] id

[v] Sshluck@yna.co.kr, Two Koreas Fully Restore Western Military Communication Line, Yonhapnews (2018) http://english.yonhapnews.co.kr/news/2018/07/17/0200000000AEN20180717003451315.html

[vi] Kyodo, Full Text of Panmunjom Declaration, Japantimes (2018) https://www.japantimes.co.jp/news/2018/04/27/national/politics-diplomacy/full-text-panmunjom-declaration/#.W9o4U2hKhPa

[vii] AP/Reuters, North Korea Agrees to dismantle nuclear complex if United States takes reciprocal action, South Korea says, ABC (2018) https://www.abc.net.au/news/2018-09-19/north-korea-agrees-to-dismanlte-nuclear-test-site/10282040

[viii] Frederic L. Kirgis, North Korea’s Withdrawal from the Nuclear Nonproliferation Treaty, American Society of International Law Volume 8 Issue 2 (2003) https://www.asil.org/insights/volume/8/issue/2/north-koreas-withdrawal-nuclear-nonproliferation-treaty

[ix] Courtney Kube and Carol E. Lee, North Korea is still making nukes and the Trump admin is taking a harderline, NBCnews (2018) https://www.nbcnews.com/news/north-korea/north-korea-still-making-nukes-trump-admin-now-taking-much-n907651

[x] REPORT OF THE COMMISSION OF INQUIRY ON HUMAN RIGHTS IN THE DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA, UNHRC (2014) https://www.ohchr.org/EN/HRBodies/HRC/CoIDPRK/Pages/ReportoftheCommissionofInquiryDPRK.aspx ;Stephanie Nebehay, U.N’s Pillay says may be crimes against humanity in North Korea, Reuters (2013) https://www.reuters.com/article/us-korea-north-rights/u-n-s-pillay-says-may-be-crimes-against-humanity-in-north-korea-idUSBRE90D0DB20130114

[xi] Jane Onyanga-Omara, What’s the International Criminal Court and Why are Countries bailing?, USA Today (2016) https://www.usatoday.com/story/news/world/2016/11/17/whats-international-criminal-court-and-why-countries-bailing/94017990/

[xii] Neil MacFarquhar, Reviled by Many Russians, Mikhail Gorbachev Still has lots to say, New York Times (2016) https://www.nytimes.com/2016/06/02/world/europe/mikhail-gorbachev-interview-vladimir-putin.html

[xiii] North and South Korea begin removing mines along DMZ, CBS News (2018) https://www.cbsnews.com/news/north-korea-south-korea-removing-land-mines-dmz-panmunjom-arrow-head-hill/

[xiv] North and South Korea Agree to some combined teams at Asian Games, BBC (2018) https://www.bbc.com/sport/44517819

[xv] International Criminal Court, ICC (2018) https://www.icc-cpi.int/

[xvi] James Pearson, Front companies, embassies mask North Korean Weapons Trade-U.N., Reuters (2014) https://www.reuters.com/article/us-korea-korea-un/front-companies-embassies-mask-north-korean-weapons-trade-u-n-idUSBREA2A08020140311

[xvii] Jonathan Thatcher, United Korea economy could pass Japan: Goldman Sachs, Reuters (2009) https://www.reuters.com/article/us-korea-north-united/united-korea-economy-could-pass-japan-goldman-sachs-idUSTRE58K0OA20090921

[xviii] International Criminal Tribunal for the former Yugoslavia, ICTY (1993-2017) http://www.icty.org/

[xix] CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE AND ACTS OF AGGRESSION, UN http://www.un.org/en/sections/un-charter/chapter-vii/

[xx] Kelly Askin, Imperfect Justice: The Impact of Yugoslav Tribunal, Open Society Foundations (2010) https://www.opensocietyfoundations.org/voices/imperfect-justice-impact-yugoslav-tribunal