Liberation Through Litigation, Part 2

Way back in the very early days of this blog, I proposed that North Korean workers should be able to sue their government for coercive and abusive labor practices under the Alien Tort Statute of 1789.  In fact, the statute was recently used with success against Unocal Corporation for its use of forced labor in a pipeline project in Burma.  Just watch Kaesong empty out if that ever comes to pass.

I had mentioned the idea once or twice since then and had considered the concept a sound one, though it never really seemed to get any traction.  So imagine my surprise to see that a big D.C. law firm, offering its time to the U.S. Committee for Human Rights in North Korea pro bono, has recently  proposed the same idea

The tricky part is that the statute only allows liability against U.S. entities — which would probably include U.S. subsidiaries of foreign companies — and only allows recovery for violations of “the law of nations.”  Piracy was traditionally such a violation.  Would slavery be one, too?   My advice would be to  try the Ninth Circuit first.

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Beyond the Drum Circle: Stopping Genocide in the Real World

There is within us some hidden power, mysterious and secret, which keeps us going, keeps us alive, despite the natural law. If we cannot live on what is permitted, we live on what is forbidden. That is no disgrace for us. What is permitted is no more than an agreement, and what is forbidden derives from the same agreement. If we do not accept the agreement, it is not binding on us. And particularly where this forbidden and permitted comes from a barbarous conqueror, who limits life to one made in his image, his murderous and larcenous views. 

from the Warsaw Ghetto  diary of Chaim Kaplan  

Because this is a blog about North Korea, I  expend many words here on the subject of  genocide:  what the word means and  who defined it, what can be done to stop it, who is trying, who has done and  is doing nearly nothing about it, who is perpetuating it, and who is joining in  it.   

The most consistently astonishing thing about genocide in our time is  how little those who  write and speak movingly about the genocides of the past often  seem to  say and do about genocides that can still be stoppedJules Crittenden inspires me to think more about this today, when he  looks at  the popularization of  feel-good responses to genocide. 

These feel-good responses have several common points.   First, all are the stuff of  drum circles  —  concerts,  solemn words, and toothless sanctions, all apparently based on the presumption that the Janjaweed are gravely concerned about George Clooney’s disapproval.  Second, they cease to be feel-good and are abandoned when any cost is attached to them.  Third, the sanctimony almost always comes too late to save anyone.  I can think of no better example than Kofi Annan’s apology for a genocide  in Rwanda that he could have  prevented, but didn’t, even as he continued to fail to take effective action  against genocides in Darfur and North Korea, and just as the depth of Saddam Hussein’s corruption of Annan’s U.N. was revealed.  You wouldn’t think that the phrase “never again” was  meant to be  posthumous, but  it  became the  epitaph of  the last century.  So far, this one doesn’t seem to be going any differently.   A thousand mass graves could have been marked with “never again” before they were filled.

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[Jewish resistance fighter, Warsaw Ghetto, 1943]

I’ll add a fourth common point about the feel-gooders:  their condemnation  of genocide is  seldom directed at oppressors who successfully cast themselves as enemies of America.  Hating America  has become  a license to commit genocide, because when a tyrant acts as ventriloquist for  his nation’s hatred of America,  it must be  our fault for failing  to “understand” and “engage” with the murderers.   That may be why you will seldom hear any Hollywood actor, liberal politician, or anchorman breathe the words, “Camp 22.”  If you’re new to this site, you’ve probably never heard of the place, although in its cruelty and scale it’s easily comparable to Tuol Sleng or Mauthausen.  Fifty years from now, schoolchildren will  make solemn visits to memorials at Camp 22, and  grad students will write theses about it.  Yet  today, while Camp 22’s next victims can still be saved, it’s another unpleasant topic we choose not to bring up for the sake of a diplomatic dance  whose end result is mournfully predictable.   The angst of those who should be talking about Camp 22 is wasted instead on places that aren’t remotely comparable to Tuol Sleng or Mauthausen, though  too many  would  squander their credibility and betray their true motives  by suggesting otherwise.

It’s also why you’ll never hear feel-good featherweights  like George Clooney, Barack Obama,  or Nancy Pelosi advocate any remotely plausible  plan to prevent an undeniably likely genocide in Iraq.  There is no feel-good, cost-free, plausible way to prevent that genocide or the other wars that will emerge from it, which  puts the question beyond their competence and compassion.  What they don’t realize is that it’s just as true of Darfur.  We’ve been talking about Darfur for years now, and no nation or international body has yet taken  a single  effective step to stop the genocide there.  This isn’t because we don’t know how.  It’s because the  things we could do to deter and mitigate this genocide quickly wouldn’t make enough of us feel good about ourselves.  Yes, recruiting public support is often  a prequisite to effective action, but  if feel-good activism isn’t leading us  toward effective action,  it’s  an exceedingly selfish  form of compassion.

What would  quickly slow and eventually stop  the Genocide in Darfur would be to  arm the  surviving victims so that they can defend themselves and their families.  What all of the great genocides of this century have in common is that the victims were unarmed.  With the exception of international armed conflicts between mechanized armies, war is almost always less costly in human life than genocide, and once the forces on the field reach stalemate,  wars  are also  easier to negotiate to a conclusion.  Genocidal tyrants don’t negotiate when they’re getting their way through other means.

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[Jewish partisans in a Polish forest, 1943]

Today, the law gives  the President the authority to declare groups “terrorist,” and certain states to be “sponsors” of terrorism.  Those declarations have legally significant effects on things that really affect the capacity of groups and states to terrorize:  trade, banking, finance, technology transfers, diplomacy, immigration, and travel.  Similarly, there should be a law by which Congress can make a legally significant declaration of “genocide” and certify classes of aggressors and victims.   The class of aggressors should be denied the same benefits that are denied to terrorists, but we have learned that sanctions work too slowly to save lives in the short term.  They may even encourage aggressors to speed up work that they doubt they can sustain over the long term. 

That’s why the certification of classes of victims  is also necessary (needless to  say, terrorist groups and their supporters  must be  excluded).   Victims of genocide should have access to small arms at low or no cost, and  should receive  training in their use.  The small arms — assault rifles, antiaircraft guns up to 23 milimeters,  and antitank rockets as needed — should be just enough to drive the aggressors from the victims’ midst and restore the military balance.   The law should include a termination provision by which the President  may  declare the military balance restored and reduce the supply of arms and ammunition to a maintenance level.  If and when a peace agreement is executed, or in the exceedingly  unlikely event that there is some effective international intervention,  the President may declare the genocide conditions to be over and stop the supply of arms. 

This isn’t a recipe for nonviolence, of course.  A transition from genocide to nonviolence is almost never possible.  It is not a way to end bloodshed and suffering, but it is a way to greatly reduce it, and to reduce  the share of the burden borne by noncombatants.  If there is any right more fundamental than the right to self-defense against crime, I do not know what it is.  It is a right we have reserved to our own selves, it is enshrined in Article 51 of the U.N. Charter, and it has nothing to do with the criminal’s status in the General Assembly:

[T]hey are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. 

Finally, it should be noted that many genocides have a regional, religious,  or ethnic character.  Genocides are almost always waged by states against  restive ethnic or  religious groups concentrated in specific regions.  (North Korea is a more complex case of  mass murder-by-deprivation.   A disproportionately high percentage  of the victims are  members of  hereditary political classes classified as “hostile” and concentrated  in the northern and eastern  provinces.)   Thus, the law should recognize that states have a duty to protect their populations  and  elevate this principle to a concrete disincentive  against genocide.  Clearly, when a state sanctions or  commits genocide against its population, its  capacity to protect that population is called into question.  The people are best qualified to judge whether the greater state  should continue  to govern them. 

Thus, when a state commits genocide against people concentrated in a particular region — Bosnia, Kosovo, Darfur, East Timor, the Ukraine — it should be the policy of the United States that the  affected region has the right to a plebiscite of independence.   

Update:   Welcome, Gateway Pundit and DPRKS readers.

Update 2:   Linked by Claudia Rosett — a supreme honor.

See also:

*  Not new, but relevant to this post, is  this chronology of resistance against the North Korean regime. 

* Most Suggestive Headline of the Week goes to the Russian news service  Novosti:  China Gives the Korean Stalemate a Happy Ending.

*  Fox News is reporting that  President Bush and President Karzai are meeting at Camp David, and that the unconfirmed rumors (or trial balloon)  is that they’re talking about paying ransom for the South Korean hostages.

*  Two senior al-Qaeda commanders are killed in three days, both in  key areas  where they thought they’d find safe haven from our Baqubah offensive.  First, it was  the “emir” of Mosul on Friday; today, it’s the “emir” of Samarra, the architect of the mosque bombing last year that caused us such trouble.  They will be replaced, but as Michael Yon puts it, the stupid ones are already dead.  These were two of AQ’s more cunning murderers, and their replacements will likely be less clever, less experienced, and less effective.  It’s by small steps like these that fewer  decisions are made to pay the insurgents or join them, and  that more decisions are made to report their whereabouts or oppose them.

*   Not Ready, Part III:   The latest Obama blunder is pretty much self-fisking:

“I think it would be a profound mistake for us to use nuclear weapons in any circumstance,” Obama said, with a pause, “involving civilians.” Then he quickly added, “Let me scratch that. There’s been no discussion of nuclear weapons. That’s not on the table.”

Just what we need — a jittery finger on the button.

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‘Pyongyang Soju’ Importer Arrested

hangoverchaser.jpgA Korean American businessman has been arrested by the U.S. Federal Bureau of Investigation on charges of hiding his activities as a spy for the South Korean government, AP reported Thursday. According to court documents obtained by the wire agency, Park Il-woo, also known as Steve Park, was a legal resident in the U.S. for the past 20 years and conducted business with North Korea. Park provided information he obtained from his frequent trips to North Korea to the South Korean government in return for payments.  [Chosun Ilbo]

I know others have  already blogged about this story, but something about that name, Steve Park, sounded familiar, so I searched my archives  … and sure enough.  According to this post from last May, “Steve Park” is the importer of Pyongyang Soju, the latest  great breakthrough in trade with North Korea.   OK, you say, “Steve Park” has to be a common name.   The thought occurred to me, but our friend at NK Econ Watch  (a very nice guy with a great blog) helps us close that loophole neatly.  Barring some exceptional coincidence, it’s the same guy.  His activities on behalf of some as-yet unnamed foreign government — want to take any wild guesses? —  turn out to involve items that raise some scary dual-use issues:

For example, during a recorded telephone call, Park relayed to a South Korean official working in Manhattan that officials of the other foreign government had asked Park to help them obtain certain items, including insecticides and anesthetics. However, the complaint alleges, on three occasions in 2005 and 2007, Park gave false information to FBI agents regarding his contacts with or knowledge of certain South Korean officials.  [DOJ Press release, hat tip to  Mins036, who is an excellent  new addition  to the  Marmot’s Hole]

Here’s an interesting question to consider:  if South Korea was sharing Park’s information with the FBI or the CIA, why would we arrest Park and burn someone who was an indirect source for us?  Unless … naw.   Couldn’t be.   Or could it?  The Feds executed search warrants at Park’s apartment, which may yield some phone numbers and e-mails.  I sure would  love to know which Korean diplomats’ tours  are about  to  be  curtailed before they’re quickly and quietly  ushered off to cush posts in Italy or Monaco. 

Contrary to what the Chosun Ilbo reports,  Park was arrested not for espionage, but for lying to investigators and violating our old friend, the Foreign Agents’ Registration Act, found  at section 951 of the U.S. Criminal Code.   The FARA  requires that you register with the Justice Department when you act at the direction of, or under the control of, a foreign government.  That’s the same law under which Tongsun Park was convicted for acting as an unregistered Iraqi agent during  Oil-for-Food.   Steve Park is now  staring  at  ten years in Allenwood, so I hope he has a better lawyer than Tongsun Park did.

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Soju for You = Hennessey for You-Know-Who

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[Update:   I’ve made indirect contact with a North Korean defector familiar with how Pyongyang Soju is made.  Based on that information, the product is not manufactured in a forced labor camp.  I  hope to  have more specific information about the materials and labor practices later.]  

The Chicago Tribune and the  Hankook Ilbo are both reporting that North Korea is about to export of shipment of soju to the United States.

US-North Korean trade is rare as Washington imposes sanctions on Pyongyang, which it lists as a state sponsor of terror. Imports need approval from the US Treasury’s Office of Foreign Assets Control.  But Steve Park, 59, the Korean-American importer, told Hankook he secured the office’s approval last July.  Park said a cargo ship carrying 2,520 boxes of soju, or some 60,000 bottles, left the North’s western port of Nampo for the United States on April 9.

“If the customs procedures go as scheduled, the soju will be sold at US stores, marketplaces and restaurants as early as late this month or early next month,” Park was quoted as saying.  [AFP]

Let’s hope customs procedures don’t go smoothy, and there could be a few more hurdles to stagger past:

Alcohol importation into the U.S. needs authorization from the Alcohol and Tobacco Tax and Trade Bureau. Because North Korea is subject to U.S. sanctions, Park Il U would also need a license from the Treasury Department’s Office of Foreign Assets Control.

North Korea is among the countries subject to the U.S. Trading With the Enemy Act. Washington agreed in February to begin discussions with North Korea on removing it from the list, one of a series of economic and political concessions offered in exchange for the North’s promise in an international agreement to start dismantling its nuclear program.  [Chicago Tribune]

Leave aside for a moment such questions as  how Kim Jong Il will spend your money, or what all  those  upstream factories are dumping into the  Taedong (or, as Richardson notes, that the stuff tastes putrid).  When it comes to North Korea, I posit that all labor is slave labor to one degree or another, and the odds that Mr. Park’s soju is made by laborers who can choose their jobs or negotiate their wages  are next to nil.  Park says his soju is made somewhere in Pyongyang; this article  claims to show a picture of inside of the bottling plant.  That may answer one of your questions, but if you’re inherently skeptical about what the North Korean government says, then wonder  with me just  how sure can we be that  Mr. Park‘s soju isn’t distilled, say,  here: 

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Google Earth gives us a closer view of Camp 18’s distillery:

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As North Korean gulags go, Camp 18 is one of the less  horrid places to find yourself enslaved.  It’s run by a slightly less sadistic secret police organization, the Peoples’  Safety Agency  (North Korea has a proliferation of them, and they’re all in competition with each other).  Just across the river, at Camp 14, the usual guard force, the National Security Agency, is in charge, and conditions are far more brutal. 

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Still, Camp 18 does have its very own public execution site:

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Typically, the political criminal is sent to Camp 14, but in his infinite mercy, Kim Jong Il sends his family to Camp 18, just across the Taedong.  That means that at this spot, just 3 1/2 miles upstream from the distillery,  a  husband might even be able to stand on one side of the Taedong River and watch his wife’s  execution on the other side.

Of course, I have no way of knowing where Mr. Park’s soju is really made,  and my point here is that neither do we, and neither does Mr. Park.  I rather doubt he cares.  I did call up the importer to ask for his side of the story, but he didn’t return my call.  Nor do I think he particularly cares how Kim Jong Il spends the profits of this commerce.  His merchandise probably  dulls the mind somewhat  less than self-serving pap like this:

“The North Korean government shows a positive response to this business in that its product is to be exported to the US, which has long been considered as a hostile country, through legal procedures,” he said.

“I think this will serve as a good opportunity to improve relations between the two countries in the future.”

Huzzah for  Mr. Park if he sleeps soundly at night.  If his soju sales take off, he has other products to add to his line.  For example, according to survivor Kang Chol Hwan, at Camp 15, a/k/a Yodok,  there was “a distillery for corn, acorn, and snake brandy.”  Former guard Ahn Myung Chol reported that at the worst of the Camps, the infamous Camp 22, there was a “distillery that produced soy sauce and whiskeys.”  And if Pyongyang  soju really is made in Pyongyang, we’re still talking about labor conditions that are highly suspect.  The State Department lists North Korea as a Tier 3 country for human trafficking concern.  That’s the worst classification  that can be  assigned, shared by only 11 other countries  “whose governments do not fully comply with the minimum standards and are not making significant efforts to do so.”   Here’s a section from State’s 2006 human trafficking report on North Korea:

The Government of North Korea does not fully comply with minimum standards for the elimination of trafficking and is not making significant efforts to do so. The government does not acknowledge that trafficking is occurring, either within the country or transnationally. The government also contributes to the problem through forced labor prison camps, where thousands of North Koreans live in slave-like conditions, receiving very little food and no medical assistance…. The D.R.P.K. regime reportedly provides workers for foreign investors operating in North Korean industrial parks. There are concerns that this labor may be exploitative, with the D.P.R.K. government keeping most or all of the foreign exchange paid and then paying workers in local, nonconvertible currency.

A Tier  3 designation supposedly means that  “it is the policy of the United States” not to provide that country aid, but  tell that to Chris Hill.  And since the State Department is in charge of this regulatory scheme, it’s also meaningless for keeping  out products made with forced labor, which  the Tariff Act defines this way:

… all work or service which is exacted from any person under the menace of any penalty for its nonperformance and for which the worker does not offer himself voluntarily. For purposes of this section, the term “˜’forced labor or/and indentured labor” includes forced or indentured child labor.

If we know that a product is made with forced labor, as  we have reason to suspect in the  case of Kaesong, it can’t  legally be landed in a U.S. port.  But what if we only have reason to suspect, and we have no way of verifying the actual facts?  In such a case, even a Tier 3 classification has  few real  consequences for a country’s ability to export goods to the United States unless.  There is a Labor Department black list, but it does not include  a direct ban on the import of suspect goods.  And good luck  with arranging that plant visit to Pyongyang, much less Camp 18, whose existence the regime denies  entirely.  If you think it will do any good, here’s how you can write a letter to the Bureau of International Labor Affairs to nominate a particular product for that list. 

Later today, I’ll be filing a request to the Office of Foreign Asset Control under the Freedom of Information Act.  I’ll be seeking a copy of  Mr. Park’s  license request,  certain policies used to evaluate  the request, and the license itself (along with other OFAC licenses for North Korea).  I’m going to be looking for any information about where  Mr. Park’s merchandise is made and what assurances he can make regarding the labor conditions there. 

If you’re a journalist and want the first look at this information, please e-mail me, because journalists get expedited FOIA treatment.  I’ll write the request and help you analyze it, and you get a chance to report it first.  A win-win?

The FOIA request  will probably take months to bear fruit, and if it does, it may show us few of the facts we really need, so I need your help.  If you know anyone who has escaped from North Korea, please ask them what they know about how and  where  Pyongyang Soju is made, and then please drop me a line at the e-mail address in the third right-hand sidebar.  If  anyone can provide a statement containing specific information that Pyongyang Soju is made with forced labor, we can use the procedures of 19 C.F.R. sec. 12.42 to block its importation into the United States.

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One Man’s Freedom Fighter…

“Congratulations! You are in a cage, Saddam,” witness Ghafour Hassan Abdullah said as he stared at the ousted president.

Saddam listened silently but lost his temper when a lawyer described Iraqi Kurdish rebels as freedom fighters. “You are agents of Iran and Zionism! We will crush your heads!” he shouted.

We will crush your heads! Remind you of anyone? Incidentally, none of my trials featured exchanges like that.

Meanwhile, Havana, Cuba is hosting a summit of the Non-Aligned Movement, the world’s second-most inaptly named entity, just below the “Democratic Peoples’ Republic” of Korea. Both entities are asking to redefine a term on which they speak with some authority, but not the moral kind:

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Guilty

Tongsun Park has been convicted in his Oil for Food trial, for acting as an unregistered agent for Saddam Hussein’s Iraq. History will note this as just one more time the U.N. abetted a dictator’s self-aggrandizement at the expense of his suffering subjects. A hat tip to Claudia Rosett herself for sending.

And in a delicious coincidence, South Korea picked today to formally nominate Ban Ki Moon to be the next U.N. General Secretary. This story says not one peep about Ban’s preeminent role in South Korea’s coverup of mass starvation and murder in the North. Ban is morally unfit to give my toilet plunger a tongue bath. His ascendancy would be cause to write the U.N. off entirely.

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Tongsun Park Trial Update

Today, Claudia Rosett reports from the courtroom that Park was picking up the tab for Maurice Strong’s private New York office. And that matters, why?

Strong, for example, served in a public capacity in 1996 as a top adviser to former U.N. Secretary-General Boutros Boutros-Ghali, then from 1997-2005 as a special adviser to Secretary-General Kofi Annan. With the rank of under-secretary-general, Strong orchestrated Annan’s 1997 reorganization of the U.N. Secretariat, stayed on as a top adviser, and from 2003-2005 became Annan’s personal envoy to the nuclear hotspot of the Korean peninsula. Thanks not to any routine U.N. disclosure, but to an extraordinary mix of investigations, admissions, and sworn testimony accompanying the Oil-for-Food scandal, we have only over the past year or so begun hearing , that while Strong wore these high U.N. hats, from 1996-2005, Strong and Park were both involved in lobbying efforts to sell Canadian nuclear reactors to the Korean peninsula; were both involved in a million-dollar oil-company deal; and that Park advised Strong on issues relating to Strong’s role as Annan’s envoy to North Korea.

What’s odd about this is that a guy as loaded as Strong would even need the money.

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Now What?

North Korea’s missile test opens up new options for the United States. Here is a list of them.

[Scroll down for updates.] It too easy to say, as many will in the coming days, that there is little that the United States and other nations can do to North Korea diplomatically or economically now that it has done the unthinkably stupid and launched its (taepo)dong and (count ’em!) five smaller missiles [Update: make that six]. Let me express my respectful disagreement with some of the analysts cited by my colleague Richardson below, and let me follow that with a list of specifics.

True, the United States doesn’t have ambassadors in Pyongyang to recall, and there are no direct flights to suspend. Not that either measure is more than cosmetic in any event. There is much, much more that the United States and other nations could do in response to North Korea’s missile test, both unilaterally and multilaterally. That may explain what Stephen Hadley is up to:

The administration quickly launched a diplomatic counter offensive to the missile shots — including one missile capable of reaching the Unites States, but made clear the response will be diplomatic and not military.

“You are going to see a lot of diplomatic activity here in the next 24-48 hours,” said … Hadley.

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Tongsun Park’s Trial Begins

Park formerly served as a “Special Advisor” to Maurice Strong, a wealthy, uber-connected Canadian leftist who in turn was Kofi Annan’s Special Envoy to North Korea. Strong and Park have now both been implicated in the U.N. Oil-for-Food scandal. During his tenure, Strong was notable for a deathly silence on human rights. He resigned after the OFF allegations emerged.

Today, Park is charged with being an unregistered Iraqi agent, in violation of the Foreign Agents’ Registration Act. Writing in the National Review Online, Claudia Rosett reports from Park’s trial, in New York:

The defendant, South Korean businessman Tongsun Park, is charged in the Southern District of New York with acting as an unregistered agent of Saddam’s Iraq — which tried through various means, especially the manipulation of the 1996-2003 Oil-for-Food program, to end the U.N. sanctions imposed after Saddam’s 1990 invasion of Kuwait. Park’s lawyer, Michael Kim, says the 71-year-old Park is “absolutely not guilty.

….

Alleging that “Cash by the bagful was sent from Iraq to the United States and doled out here by an Iraqi agent to Tongsun Park,” Farbiarz outlined a tale of secret swaps of messages and money in New York cafes and restaurants; night-time meetings at the Sutton Place official residence of former Secretary-General Boutros Boutros-Ghali; a close encounter with longtime U.N. eminence Maurice Strong, who served as a top adviser to both Boutros-Ghali and then to Kofi Annan; and an episode in which Park in 1997 picked up cash from Saddam’s number two man in Iraq, Tariq Aziz, and “drove out of the Iraqi desert over the Jordanian border. (Boutros-Ghali, Strong, and Annan have all denied any wrong-doing in relation to Oil-for-Food.)

Park has a long history with allegations of corruption dating back to the 1970’s “Koreagate” scandal. Click here for some of the extensive posting I’ve done on the subject.

And get this: Park even has a web site, which focuses heavily on Korean nationalism, a la Robert Kim, but which seems to be all in English. Go figure. The site, wisely I’d say, says nothing about the charges, and contains no information that might connect Park to the government of North Korea, his birthplace.

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The Congo Question, The Heart of Darkness, and Accountability

The enforcement of standards of civilized behavior is what distinguishes us from our enemies, and today, we must again make that distinction plain. The Army has charged two soldiers and an NCO with murder in Iraq, based on an alleged incident that took place just last month. A three-star general ordered the investigation after following up reports about it. We eagerly await a John Murtha coverup allegation.

The case will now proceed to an Article 32 investigation, a cross between a preliminary hearing and a grand jury. The Article 32 is very possibly the greatest truth engine in any legal system, anywhere. Attorneys for the government and the defense (appointed military counsel; civilian counsel at no cost to the government) will have extensive rights to question witnesses and examine documents. One officer will examine all of the evidence produced and make recommendations on whether the case merits trial, and at what level. The recommendation is not binding. The various court-martial convening authorities — the highest of whom is generally a two- or three-star, will decide whether probable cause exists to believe that each accused committed a triable offense. As a practical matter, however, if the investigating officer finds probable cause, there will be a trial.

Patience is not a virtue of the American media, but I’ve had some of experience with both fora, and thus have far more confidence that the military courts will develop an accurate account of the events in question than the New York Times will. It’s entirely possible, after all, that these soldiers are not guilty, and while it’s now commonplace for us to forget that, no one deserves the benefit of all reasonable doubts more than those who protect our own freedom. If these turn out to have been soldiers who forgot who they were, the bidding ought to start at double-digit, hard-time confinement. The same would be just as true of accountability by senior officers and NCO’s, something that has finally begun to happen with Abu Ghraib. How ironic that for all of the attention lavished on Abu Ghraib, the world has forgotten most of the horrors that happened there. This is how the abandonment of perspective tends to work, and will probably work here.

If any reminder is needed that we ought to wait for the legal process before we judge any suspect, whether in this case or that of Haditha, Michael Yon has expressed it from a deeper personal knowledge and with a far greater poignancy than I could ever hope. Unfortunately, the cause for which all of the soldiers are sacrificing — including those whose conduct is beyond reproach — will soon face unfavorable comparisons to unattainable standards that no Army in the field has ever met, or will ever meet. Expect venenous, hyperbolic analogies to Einsatzgruppen. The message some will want us to take from this will be that the only appropriate atonement is to abandon the field to those who see the murder of children as their very point-blank, execution-style modus operandi. That, of course, would be to incentivize rather than deter barbarity.

Unfortunately, the morality of too many is sufficiently perverse that every death in Iraq — regardless of the actor or his intent — is implicitly the fault of the United States. This view shovels guilty and innocent alike into a statistical mass grave, with the fallen soldiers of an elected government piled on top of shards of foreign terrorists, with dead diplomats, foreign workers, and innocent children akimo in heaps, and here and there, an American Marine or British soldier. This view makes no moral distinction between the terrorist who drives a car bomb into a school, the child he killed, the teacher who dies trying to shield the child, or the Iraqi soldier whose final act is to empty his magazine into the car. It takes little thought to see this communal statistical burial, this exploitation of a victim in common cause with her murderer, for the desecration that it is.

Still, such a simplistic framework has appeal — as the substitution of emotion for thought always does — because it is easy on the mind. The anticipation of consequence, the consideration of the greater moral context, the careful examination of circumstances, and the building of one’s moral framework around reason are not, as a rule, easy things. One cannot reach the “right” moral answer without considering them, however.

Among those who will have the most to say about this case, and among those who have already had the most to say about Haditha, there has been much studious evasion of some dire realities, beginning with the fact that our deadliest enemy in Iraq — if not necessarily the most numerous — calls itself “al Qaeda in Iraq” and swears allegiance to those who engineered the murder of 3,000 American civilians on a single day — right here in America. They cannot argue why a government chosen by the consent of the governed in three free elections is less meritorious of our respect and support than the violent acts of gangs of displaced cut-throats and ambitious petty warlords. They cannot say how America can survive if it consistently yields the field of battle to those who would follow us to our homes to kill our people, rob us of our freedom, and destroy our prosperity, or why this would make the world better. They cannot explain why the forebearance and understanding of Europe and the Middle East have purchased them so forebearance and understanding in return — why, for example, were 25 terrorists convicted just last week for plotting attacks in France over Russia’s war in Chechnya? They do not answer for the incalculable horrors that would follow a sudden U.S. flight from a nation that freely elected leaders who ask for the presence of U.S. forces until — and only until — the rule of law and the will of the people have a chance to triumph against bands of cutthroats in the pay of the predatory tyrannies that surround them. They evade this obvious consequence above all others: that after Iraq, there will be another battleground, and another, and that sooner or later, America will be among them. Again.

It is a statistical certainty that in every Army there are men who have committed crimes, whether in times of peace or under the stresses of war. This is not an excuse for crime; it is an imperative both for accountability and for perspective. Neither any European nation, nor the Canadian Army, nor the United Nations itself is exempt from that statistical certainty, or from the responsibility to hold those who err accountable under the law. Here, the U.N. has much to learn from the Uniform Code of Military Justice. I wonder how many of those who say that we must abandon Iraq to the heirs of Saddam and Zarkawi believe just as strongly that the U.N. must atone for its soldiers’ exploitation of some Congolese girls by abandoning all of them — and their sisters, brothers, and parents — to the tender mercies of cannibals and rapists. It is only some sense of perspective that leads to the obvious answer, despite the U.N.’s woeful job of assuring that the guilty are held accountable.

A just world does not measure the justice of nations and their causes by the actions of an abberrant few, but by how swiftly and thoroughly their actions are judged, and accountability imposed, by a system of laws that represents the many. That process is at work in the U.S. military. If only we could hope for the maintenance of that perspective as that process works toward its conclusion. That may be too much to hope for.

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Why He Took Those Pictures

The U.S. Ambassador to South Korea, Alexander Vershbow, has paid a very public visit to the Kaesong Industrial Park, and the initial signs are good. Vershbow, a man who seeks the public debate his predecessors so often avoided, has not shied from stating some rather blunt views about North Korea. Thus, the fact that the North Koreans allowed his visit to go forward at all is surprising. Best of all, Vershbow snooped around, took pictures, and even seems to have sought a peek at the books, with his thoughts on the workers’ paychecks (or absence thereof). His reaction was cyptic:

“It was useful in getting more information about Kaesong, which I will pass on to my colleagues in Washington,” the diplomat said. “There are some questions people have in their minds about Kaesong, and I hope the information that I pass back will be helpful to my colleagues in understanding better what’s happening in Kaesong.” He said there were talks underway to organize a visit by the North Korea rights envoy, Jay Lefkowitz, “probably next month.”

Here’s the money quote:

The ambassador dodged a question on his government’s support for the complex, calling it tricky, but said he had seen quite a lot of U.S.-produced equipment while looking around.

That’s a highly significant statement.

Before some of us helped put Kaesong on the map as a human rights issue, it was a technology control issue, which requires us to talk some law, specifically the U.S. Department of Commerce’s extremely detailed technology control regulations. Those regulations are intended to keep sensitive or dual-use American technology out of the hands of our enemies. They apply to both direct exports and reexports to other end users.

This excellent primer describes how each listed product has a unique five-digit alphanumeric code known as an Export Control Classification Number (ECCN). Using this ECCN, it’s possible to determine what controls apply to each listed item here, which leads you to a country chart (15 C.F.R. sec. 738) that is updated frequently, but for which North Korea’s blocks have pretty much all been checked since 2001. Those blocks consist of a series of reasons for which the export restrictions were imposed: chemical and biological weapons, nuclear nonproliferation, national security, missile technology, regional stability, crime control, anti-terrorism, or the firearms convention (notice anything missing in there?). North Korea, for more good reasons I can count (see pretty much every entry I’ve ever posted here) hits every one of these except firearms convention controls.

Would a South Korean transfer of U.S. technology to a South Korean plant that happens to be inside North Korea violate the controls? We found the answer last year, when South Korean attempted to transfer items listed in one category of sensitive technology — telecommunications equipment, which often has dual-use applications:

[T]he export administration regulations (EAR) of the U.S. stand in the way as the country restricts exports of dual-use items, which can be converted for military purposes, to embargoed destinations including North Korea. Under the policy, a license is required for virtually all exports of products using more than 10 percent of U.S. technology or components.

“To avoid the EAR, we tried to procure telecom equipment from European manufacturers like Ericsson, Alcatel and Siemens. But the hitch is that their products may cross the 10-percent threshold and for this reason they are hesitant,” Park said. He added the European big names fear unauthorized exports of telecom gears to the North might arouse the ire of the U.S., which can prevent exports of their products to the U.S.

Because the controls apply not only to direct U.S. exports to listed nations, but also to reexports to listed nations, Ambassador Vershbow’s pictures are more than a simple threat to the North Koreans’ line of credit. If South Korean companies transferred technology to North Korean in violation of end-user rules (15 C.F.R. pt. 744), the offending South Korean companies could be facing sanctions of their own. That would be yet another earthquake in U.S.-South Korean relations, already severely strained by the unraveling of the military alliance and the likely collapse of U.S.-Korea Free-Trade talks as President Bush’s fast-track authority ticks away, and opposition in both the United States and South Korea grows.

One of the main sticking points has been the U.S. refusal to treat goods produced at Kaesong as South Korean products for FTA purposes. Very few nations, after all, have FTA’s with the United States, and it makes little sense for North Korea to enjoy a privlege that stalwart ally and trading partner Japan lacks. The import controls on North Korea are at 31 C.F.R. sec. 500.586; they were recently updated with this notice in the Federal Register banning U.S.-owned vessels from flying the North Korean flag. The Treasury Department’s Office of Foreign Assets Control has a good summary of the import sanctions currently in effect; more here. What about assembling or finishing Kaesong-made materials in the South? We’ve thought of that. You can see pretty much all of it by typing the word “Korea” into the search window here.

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There was another interesting vignette at Kaesong when Vershbow’s North Korean guide ““ almost certainly loaded with a prefabricated tirade ““ asked Amb. Vershbow about his opinion on human rights in the North. Vershbow wisely declined the guide’s opening to let fly with her canned David vs. Goliath setup before a gallery of sympathetic journalists. Watching Vershbow’s performance leaves you somewhat rueful that no one of his caliber was available to represent our interests for the last critical decade, when matters deteriorated to the woeful state at which they’d arrived when he was confirmed.

Reminder: Read our disclaimer.

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Japanese Coast Guard Searches N. Korean Drug Ship

They also arrested two people believed to have been part of the smuggling operation.

The men are accused of helping smuggle several hundred kilograms of amphetamines from North Korea to Japan, Jiji Press and public broadcaster NHK said.

Tokyo police arrested Woo Si-Yun, an unemployed 59-year-old South Korean living in Japan, and alleged Japanese gangster Katsuhiko Miyata, 58, the news organizations said.

Woo is believed to be the owner of a mobile phone recovered from a North Korean spy ship that sank in the East China Sea in 2001 after an exchange of fire with the Japan Coast Guard, Kyodo News said.

Investigators also searched a North Korean freighter that arrived Friday at western Tottori prefecture because they believe the ship was used to smuggle the drugs, NHK said.

Police are looking to arrest several others in connection with the case, Jiji said.

Photo: AFP

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Should Hanchongryon Be Designated a Terrorist Organization?

“Let us eliminate anti-unification pro-war forces which intend to cast fire clouds of a nuclear war on the heads of Koreans.
Hanchongryon Statement before visiting Pyongyang

If I’d had any idea that things were this bad on South Korean university campuses, I’d have been paying much closer attention:

Seven Korea University students face disciplinary punishment after illegally detaining nine professors for 16 hours. The Yonsei University president is working elsewhere after being driven out of his office some 40 days ago by radical students who are occupying the university administrative building. Some 50 pro-North Korea students of Joong-Ang University also occupied the president’s office and painted walls and floor with slogans.

Amazing. Like “1984” meets “Lord of the Flies.” This is the infamous North Korean fifth column known as Hanchongryon, with a long history of violence and almost always featured in our force protection warnings about violent demonstrations. More on that later. But this story ends well:

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Jay Lefkowitz Is Right About Kaesong

The debate about South Korea’s role in (not) improving human rights in the North seems to intensify by the hour. Freedom House is the latest to testify for the prosecution. If you believe the latest report from the Chosun Ilbo, the State Department is reeling from the vitriolic South Korean reaction to U.S. Human Rights Envoy Jay Lefkowitz over labor conditions in North Korea’s Kaesong Industrial Park:

Another U.S. government insider also said the controversial piece by Lefkowitz had not gone through normal advance review procedures. That implies that Lefkowitz’s harsh critique of South Korea’s little-monitored aid to the North and suggestion that North Korean workers at the complex are exploited would not have gone into the paper unchanged.

The damage being done, however, the department chose to use the same phrase as the envoy: “The world knows little about what actually goes on at Kaesong.

We obviously don’t know who that “insider” is, or what he really knows, but the report’s implication is almost certainly false. It’s certainly possible that State is backpedaling, but as I’ll soon explain, the chances of Lefkowitz’s statement not being vetted are next to nil.

I’ve already dealt with the South Koreans’ false response on food aid today and want to discuss Kaesong. The pro-business, nationalistic take of the Chosun Ilbo is that the U.S. is in a “bind” over Korean ire at Lefkowitz’s “slur.” How the U.S. is in a “bind” over this escapes me, and the Chosun Ilbo doesn’t explain. “Slur” means “a disparaging remark; an aspersion.” “Aspersion” means “An unfavorable or damaging remark; slander.” “Slander,” of course, requires that the remark be false, which it was not. Let’s review what Amb. Lefkowitz said about Kaesong:

America’s friends in Asia must be careful not to squander whatever influence they may have to bring about change in North Korea.

That’s too important a point to blow past — regardless of the actual conditions at Kaesong — because of conditions elsewhere in the North. Kaesong is a cash cow for Kim Jong Il, who has been doing a fine job of extracting cash from South Korea for the last decade, but who still hasn’t given a single meaningful concession on nukes, abductees, human rights, transparency for food aid delivery, or the 10,000-plus artillery tubes dug in at the DMZ at pointing South. South Korea, a nation with 1,000 of its southern citizens and 22 million of its northern ones in bondage has a duty to represent those citizens by extracting some mitigation of the conditions of their captivity in return.

Near Kaesong, a city just north of the Demilitarized Zone, 15 South Korean companies recently opened an industrial park using North Korean labor. So far, the consortium has pumped hundreds of millions of dollars into the North with more to come. A South Korean official enthusiastically described it as, “a cooperative project benefiting both the South and the North, and at the same time, a peace project overcoming the wall of the Cold War through economic cooperation.”

But the world knows little about what actually goes on at Kaesong, and given North Korea’s track record, there is ample cause for concern about worker exploitation. The South Korean companies apparently pay less than $2 a day per worker, and there is no guarantee that the workers see even this small amount.

That may actually be overstating the wages, as we’ll see. What Amb. Lefkowitz is really saying here is that we don’t know much, because the North Koreans themselves aren’t willing to let us know much. A U.S. delegation was allowed to visit recently, and I’ve spoken to a member of that delegation. Findings? Not many. They saw some nice, shiny factories, but they didn’t get much of a look under the hood. All we really know about labor conditions in Kaesong is what we’re likely to infer absent persuasive information to the contrary. Might some transparency be appropriate? Is it the fault of the United States that North Korea won’t let us interview a few of the workers in private? If they’re really as plump and content as oompa-loompas in a magical chocolate factory, what’s the harm in letting us interview a few of them in private? Why not make sure that at least some of the benefits from Kaesong go to those who need it desperately, instead of letting Kim Jong Il blow it all on MiGs, nukes, and luxury sedans?

The North Korean government deducts a “social fee” from their wages and empowers “labor brokers” to control the rest. Moreover, the site is fenced in, and the North Korean workers must come and go through a single entrance manned by armed soldiers. While the conditions at Kaesong may be marginally better than elsewhere in the North, substantial economic assistance to North Korea should be linked to human-rights progress for all North Koreans.

Those circumstances don’t exactly give much comfort, and I’ll simply redirect you to this post, which quotes extensively from several press reports that feed our worst suspicions by describing an atmosphere of pervasive, Orwellian control and isolation of the workers. Among the few specifics found? Te workers there keep just 40 cents a day, or $8 a month, and the unguarded admission by one of the South Korean bosses that Kaesong workers can’t form independent unions.

At a minimum, North Korea should allow an independent party, such as the International Labor Organization, to inspect and assess Kaesong and report its findings to the U.N.

And again, what’s really the harm in that? Except maybe this, of course (see Article 2). But isn’t multilateralism sacrosanct?

Having examined Lefkowitz’s remarks, are they really out of line? Well, here’s a record of him making very similar remarks at the Heritage Foundation back in early April, which is normally enough time to avert an international incident. Lefkowitz also said just about exactly the same at the NK Freedom Day rally, which means we’re now up to three times he’s said essentially the same thing publicly. Still not enough? Here’s a link to his prepared written statement, given on Capitol Hill last Thursday, which I also attended. If you read it, you’ll see that it’s also very similar to the WSJ piece. As anyone familiar with Washington bureaucracy knows, you don’t testify in Congress without your written testimony being vetted extensively. Meaning? Meaning I question the accuracy of the Chosun Ilbo’s report. Amb. Lefkowitz has now made very similar comments publicly four times over the course of nearly a month, including a written statement to a key committee of Congress. Not vetted? Please.

Finally, let’s see what U.S. law tells us about Kaesong in the context that’s the real deal-breaker: trade with the United States. The Tariff Act of 1930, specifically 19 U.S.C. sec. 1307, defines “forced labor” to mean —

all work or service which is exacted from any person under the menace of any penalty for its nonperformance and for which the worker does not offer himself voluntarily. For purposes of this section, the term ”forced labor or/and indentured labor” includes forced or indentured child labor.

Anyone want to try to lawyer Kaesong products out of that definition? If you can’t, then goods made “wholly or in part” at Kaesong may not be imported into the United States and are even barred from U.S. ports. Do not clear customs, do not collect $200.

Lefkowitz is dead-on — not just morally, but legally. Based on the best information we have, the workers at Kaesong didn’t choose their work voluntarily, can’t quit, can’t organize, and have no say about the pay or working conditions.

How is that not slave labor?

How is it “interfering in South Korea’s internal affairs” that the U.S. refuses to make a special exception to its slave labor laws for Kim Jong Il and his unscrupulous business partners in Seoul?

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WANTED

Two U.S. senior congressional researchers say Washington could bring criminal charges against North Korean leader Kim Jong-il over his country’s alleged counterfeiting of U.S. dollars. The two authors of a Congressional Research Service report say the U.S.’s increasing keenness to back up its allegations with legal evidence is fueling speculation that it is considering going after Kim.

Well, that would certainly mark a decisive policy shift — one that it would extraordinarily difficult for future presidents to reverse.  “Earthquake” might be more like it.  The effect on the U.S. relationship with both Koreas could be dramatic.  South Korea would be forced to choose.  North Korea would come under very stong pressure.  It would likely mean an abandonment of our fruitless efforts to talk Kim out of his bomb, shifting toward treating Kim himself as the problem.

Image from here.

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Will U.S. Finally Let in N.K. Refugees?

North Korean refugees rush a foreign embassy in China in search of asylum (AP photo)It’s long past time we did this

The U.S. government plans to break with long-established policy and start giving asylum to refugees from North Korea. Wording in the 2004 North Korean Human Rights Act that allows it to admit defectors from the Stalinist country has not yet been put into practice due to failure to confirm identities and objections from countries where the refugees were staying.

Prominent  activists for human rights in the North – Suzanne Scholte, Jae Ku, and Adrian Hong, to name three – were becoming increasingly vocal about their disillusionment with the State Department and Lefkowitz’s failure, thus far, to get the North Korean Human Rights Act implemented.  What we have seen recently is a new outreach effort by the State Department, which  is  the result of those concerns being relayed to Congress (via a knowledgeable source, Reps. Frank Wolf, James Leach, and Chris Smith  were particularly instrumental; Rep. Henry  Hyde may  also have  helped).

Jay Lefkowitz, the U.S. special envoy on North Korean Human rights, admitted to the activist group Freedom House in a closed-door meeting that the refugees are becoming a credibility problem for Washington. He also reportedly promised to become more active on the issue. In the meeting, which was attended 20 U.S. campaigners for North Korean human rights, Levkowitz [sic] said he would focus on rights, the issue of refugees and promoting greater openness in North Korea.

After this meeting, which I did not attend but from which I was sent some notes, I heard that  this move was coming, although I was asked not to blog it and was fairly skeptical in any event.  I still am.  Read this closely:

On Thursday, U.S. Secretary of State Condoleezza Rice also implied a policy shift by saying, “We are reviewing our policies on refugese,[sic] reviewing them with DHS (Department of Homeland Security), reviewing them with the FBI, to see if we can find a way to participate in the refugee activities as well. If it does admit them, it is likely to exacerbate tensions with North Korea in an already chilly climate because of Washington’s sanctions and the North’s nuclear ambitions.

For the record, the objections about North Korean infiltration are serious.  Put nothing past this regime.  But those problems are not insoluble, and must not be allowed to interfere with our higher obligations under federal statute and  international treaty.  A close reading, in fact, does not completely persuade me that this change has yet made its way to the embassy gates. 

For background, see this post by Richardson as well.  I must say how great it is to search the new, merged  archives and find so many on-topic, well-written posts by my co-bloggers.

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Cartoon Idiocy, Part II

After learning that South Korea was in danger of losing the title for “Hub of Petty Despotism,” President Roh Moo Hyun launched his own cartoon war of sorts this week. No embassies were harmed in this production; the only violence was that done to freedom of the press:

President Roh Moo-hyun yesterday filed a second libel suit against the mainstream Chosun Ilbo newspaper, saying a cartoon defamed him by circulating false facts. The cartoon, titled “The lie is detected fast,” was published on Aug. 9 last year and addressed illegal eavesdropping by the state intelligence agency.

In case you’re curious, this appears to be the cartoon we’re talking about:

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