What Pyongyang Must Do to Get Sanctions Lifted

If a problem cannot be solved, enlarge it. – Dwight D. Eisenhower

In yesterday’s post, I confronted two unwelcome facts: first, that Kim Jong-un almost certainly will not give up his nuclear arsenal voluntarily; and second, that we cannot learn to live with a nuclear North Korea (or more accurately, it will not learn to live with us). To these, I’ll add a third: things in Korea will certainly get much scarier over the next few years. Pyongyang is blaming sanctions for its own threats, but the inevitability of this crisis isn’t a function of our own policy choices; it’s a function of Kim Jong-un’s psychology, the mass psychology of a system addicted to threats of war, and the fact that as Pyongyang gains more confidence in its weapons, it will feel more freedom of action to provoke and extort without cost. 

Ex-diplomats’ temptation to dialogue, while understandable on certain levels, is an exercise in futility at this point. (Of course, we never really stopped talking to Pyongyang. Not that I necessarily object to talking. I object to paying.) Still, my question remains: if Pyongyang won’t disarm, what’s to talk about?

In yesterday’s post, I ruled out every diplomatic strategy for disarming Pyongyang except one — putting it under so much financial and political duress that its leaders realize that they must change or perish (and it’s much too soon to make effective use of that leverage now). Today’s post will start by answering Sahand Moaref’s question of why the U.S. government chose to sanction North Korea over human rights, thus diffusing what Moaref sees as a necessary focus on disarmament, and denying diplomats the flexibility to achieve a negotiated disarmament. There are two answers to this — a simple legal answer, and the policy reasons behind the legal answer.

The simple legal answer is that section 304 of the North Korea Sanctions and Policy Enhancement Act gave the President 120 days to make a public decision whether to designate Kim Jong-un for human rights abuses. Then, if the President found Kim Jong-un responsible, it was required to designate him and freeze his assets in the dollar-based financial system. State now says that its designation of North Korean human rights violators was years in the making. If that’s true, Congress was pushing against an open door, and the political consensus was already unanimous that there was no diplomatic breakthrough for such a designation to ruin. Still, that consensus went unrequited until three weeks after Congress forced State to say whether Kim Jong-un was responsible for crimes against humanity. Of course, there is only one correct answer to that question.

The reasoning behind the NKSPEA is that our diplomatic strategies — first, appeasing Pyongyang; then, ignoring it — were drifting over a waterfall. There was thus little risk in limiting the flexibility of diplomats to negotiate an agreement that wasn’t happening anyway, and that had little hope of success even if it did. Instead, Congress demanded a comprehensive policy for a comprehensive solution. The NKSPEA requires the President to apply all of our instruments of national power short of military force to coerce Pyongyang to end those behaviors that the U.S. and its allies cannot simply learn to live with. Congress also did something no diplomat has ever done — it told Pyongyang exactly what it must do to get sanctions lifted by writing suspension and termination conditions right into the law. (I’ll get to what those conditions are in a moment.)

To the drafters of the NKSPEA, of which I’m one, State’s negotiating strategy was hopelessly myopic. Its focus on the narrowest of disarmament objectives traded away nearly all of our leverage over Pyongyang to get transitory concessions on just one part of its nuclear program. Thus, that strategy made it more difficult to achieve a comprehensive solution to the greater Korean crisis. It bears repeating that the Korean crisis isn’t just about nukes — it’s about the chemical, biological, thermobaric, and conventional weapons Pyongyang regularly threatens to rain down on millions of South Korean civilians, and the missiles and artillery that would deliver those weapons. It’s about narcotics trafficking, insurance fraud, money laundering, international abductions and assassinations, the sale of weapons to terrorists, cyberterrorism against the U.S. homeland, and the counterfeiting of U.S. currency. It’s also about a system of repression and secrecy so extreme that it renders any disarmament agreement unverifiable.

Thus, by 1998, in pursuit of a freeze of North Korea’s plutonium program, the Clinton administration had lifted most trade sanctions against North Korea and continued to provide it aid, despite a growing body of evidence that it was cheating on the 1994 agreement by pursuing a uranium enrichment program. Both political parties are equally culpable here; by 2008, the Bush administration lifted most financial sanctions in exchange for one blown-up cooling tower and a few boxes of uranium-tainted papers.

Meanwhile, State never even began negotiations in earnest to disarm North Korea of its chemical weapons, biological weapons, ballistic missiles, or the conventional artillery it had aimed at Seoul and other South Korean cities.

By giving away so much so soon, Washington also damaged the cohesion of the most important diplomatic alliances we would need to achieve a lasting peace in the region. In 2007, for example, the U.S. turned its back on treaty ally Japan by removing North Korea from the list of state sponsors of terrorism without having secured a meaningful commitment by Pyongyang to return Japanese abductees. That betrayal caused great controversy in Japan at the time, and it was still harming the U.S.-Japan alliance years later, when Japan cut a separate deal with Pyongyang for the return of the abductees.

Similarly, the Bush administration’s decision in 2007 to let Pyongyang ship weapons to Ethiopia was a clear violation of UNSCR 1718, a resolution the U.S. had just expended substantial political capital to secure. Allowing Pyongyang to violate that resolution squandered a global diplomatic consensus to limit Pyongyang’s arms dealing, which funds its WMD programs. To this day, the U.S. and South Korea are still expending diplomatic capital to get African and Asian states to comply with UNSCR 1718, and with the resolutions that followed it.

North Korea’s human rights abuses have long been a grave concern for many members of Congress, but since the 2014 release of a U.N. Commission of Inquiry report finding North Korea’s government responsible for crimes against humanity, that concern has resonated globally. The world is no longer prepared to give Pyongyang license to commit murder, rape, extermination, and starvation on a mass scale, nor should it be. And if State and Treasury had designated the leaders of Zimbabwe and Belarus for human rights abuses, they could hardly justify their failure to designate Kim Jong-un for far worse.

There are also sound political reasons why any agreement with North Korea must go beyond nukes. Iran continues to support terrorism and test missiles despite the Joint Plan of Action, and Congress isn’t just going to live with that; it will impose new sanctions in response to new evils. Support for terrorism and missile tests are unacceptable to Congress and to U.S. allies, regardless of whether Iran complies with the JPOA or not. These political and diplomatic realities explain why diplomatic solutions with rogue states must be comprehensive, even if comprehensive agreements are harder to achieve in the short term.

More fundamentally, negotiations are doomed to fail as long as Pyongyang continues to lie its way through them. Pyongyang has repeatedly reneged on its agreements, and we’d be fools to trust it again without compelling evidence that it is prepared to become a fundamentally more transparent society, whose commitments, actions, and adherence to the standards of basic humanity can be verified. How can we verify North Korea’s disarmament, especially now that it has admitted to having a more easily concealed uranium enrichment program, if Pyongyang continues to cage foreign aid workers in Pyongyang, miles from where the hungriest people are? Can we really monitor North Korea’s nuclear program if the vast areas that contain its political prison camps — including Camp 16, directly adjacent to its nuclear test site — remain off-limits to us? How could inspectors expect to hear candid answers from North Korean scientists, engineers, or laborers who live in terror of having their loved ones sent to those camps? A closed, terrorized, and opaque society with a long history of determined mendacity is fundamentally impossible to disarm. To be disarmed, it must first be altered or abolished.

Pyongyang, not Washington or Seoul, made the decision to engage in such a wide range of conduct that is unacceptable and offensive to us, to North Korea’s neighbors, or to civilization as a whole. If that breadth of evil complicates diplomacy, Pyongyang alone is responsible for that. If Pyongyang will not live by the basic standards of civilized humanity, it must live without the benefits of commerce with civilized humanity.

To Moaref, the expansion of sanctions leaves Pyongyang confused as to what it must do to get sanctions lifted. But today, no one in Pyongyang need wonder what they must do to get sanctions relaxed or lifted, because clear and specific goals and benchmarks are written into the law. Under the NKSPEA, sanctions can be suspended for a renewable period of a year if the President certifies that North Korea has done the following:

(1) verifiably ceasing its counterfeiting of United States currency, including the surrender or destruction of specialized materials and equipment used or particularly suitable for counterfeiting;

(2) taking steps toward financial transparency to comply with generally accepted protocols to cease and prevent the laundering of monetary instruments;

(3) taking steps toward verification of its compliance with applicable United Nations Security Council resolutions;

(4) taking steps toward accounting for and repatriating the citizens of other countries—

   (A) abducted or unlawfully held captive by the Government of North Korea; or

   (B) detained in violation of the Agreement Concerning a Military Armistice in Korea, signed at Panmunjom July 27, 1953 (commonly referred to as the “Korean War Armistice Agreement”);

(5) accepting and beginning to abide by internationally recognized standards for the distribution and monitoring of humanitarian aid; and

(6) taking verified steps to improve living conditions in its political prison camps.

Eventually, sanctions can be lifted entirely if North Korea meets the following conditions:

(1) met the requirements set forth in section 401; and

(2) made significant progress toward—

   (A) completely, verifiably, and irreversibly dismantling all of its nuclear, chemical, biological, and radiological weapons programs, including all programs for the development of systems designed in whole or in part for the delivery of such weapons;

   (B) releasing all political prisoners, including the citizens of North Korea detained in North Korea’s political prison camps;

   (C) ceasing its censorship of peaceful political activity;

   (D) establishing an open, transparent, and representative society; and

   (E) fully accounting for and repatriating United States citizens (including deceased United States citizens)—

      (i) abducted or unlawfully held captive by the Government of North Korea; or

      (ii) detained in violation of the Agreement Concerning a Military Armistice in Korea, signed at Panmunjom July 27, 1953 (commonly referred to as the “Korean War Armistice Agreement”).

If Congress agrees that the President has reached an agreement on some other acceptable terms, it can always amend the law, but a future President would be understandably reluctant to ask Congress to do this without bringing a very strong case to a future Congress. The North Koreans have burned us too many times to get another pass.

Note that these benchmarks do not necessarily require North Korea to become a fully “open, transparent, and representative” society, but merely to make “significant progress” toward one. This is not an end-state; it’s an abbreviated dialectic. The President could sign such a certification today with respect to any number of authoritarian states. As long as North Korea progresses toward transparency and openness, the President can continue to grant one-year suspensions of sanctions while our leverage remains in place.

Would North Korea view these conditions as political suicide? It agreed to many of them in 1953, so it’s hardly in a position to object to them now. Its agreement to progress toward becoming “open, transparent, and representative” depends how interested its leaders really are in developing their society and improving the living standards of their people. Until recently, U.S. and South Korean diplomats assessed that interest as high. North Korean propaganda still extols economic development as the half of its byungjin policy that isn’t fundamentally objectionable to the rest of humanity.

Whether Pyongyang would agree to this condition also depends on whether its leaders believe their own propaganda. That propaganda ceaselessly emphasizes how much the people adore Kim Jong-un, their single-minded pride and nationalism, and their belief that only a Supreme Leader can protect them from the packs of ravenous capitalists and carpetbaggers beyond the walls of their safe space. Some of the top officials in Pyongyang probably really do believe this, to varying degrees. Because human beings are individuals, and because individuals vary, some demographics in even the poorest regions of North Korea probably share it, too. I’ve met North Korean refugees who admit to having believed it themselves at one time. You don’t have to go all the way to Pyongyang to find experts who believe we underestimate the popularity of the regime, either: both Brian Myers and Andrei Lankov, who disagree with each other more often than not, have both said this at different times. Whether they’re right or wrong is mostly speculative; it isn’t even the point of the discussion. The point is that the leaders in Pyongyang might just believe it, or that they might, in a moment of sufficient duress, take the risk of believing the things they pretend to believe. But the state’s increasingly repressive policies also suggest its general recognition that many North Koreans despise the state’s exercise of totalitarian authority.

If a diplomatic solution is as unlikely as most people think it is, these conditions are probably moot anyway, and sanctions are merely one part of a broader strategy to either collapse the regime in as controlled a manner as possible, or to limit its capacity to threaten the world by putting it in something akin to international financial receivership. I’ll discuss the latter concept in the next post in this series.