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Getting the U.S. in Step with the Koreas’ Diplomatic Dance
Getting the U.S. in Step with the Koreas’ Diplomatic Dance
Myanmar at the International Court of Justice
Myanmar at the International Court of Justice
South Korean President Moon Jae-in and North Korean leader Kim Jong Un attend an official welcome ceremony at Pyongyang Sunan International Airport, in Pyongyang, North Korea, 18 September 2018 yeongyang Press Corps/Pool via REUTERS
Commentary / Asia

Getting the U.S. in Step with the Koreas’ Diplomatic Dance

A new round of inter-Korean diplomacy commenced 18 September as the North and South Korean leaders met for a three-day summit. Meanwhile, U.S.-North Korean relations are reverting to previous bad form. Washington should welcome Seoul’s help in restarting productive contacts with Pyongyang.

President Moon Jae-in of South Korea arrived in Pyongyang early on Tuesday for a three-day visit. The outcomes of this summit with North Korean leader Kim Jong-un will set the tempo for the remainder of 2018 and beyond. But progress between the two Koreas is partly dependent on reversing the decline in U.S.-North Korean engagement since the 12 June meeting in Singapore between Kim and President Donald Trump.

For North Korea, the diplomatic dance began on 9 September with the 70th anniversary of its establishment as a separate state, celebrated with a military parade in Kim Il-sung Square and a revival of the country’s famed gymnastic displays, the Mass Games. What mattered was the presence of a senior Chinese official – Politburo Standing Committee member Li Zhanshu. Li helped Pyongyang achieve its primary diplomatic goal: demonstrating the robustness of relations with Beijing ahead of further dialogue with Seoul and possibly also Washington.

Now it is South Korea’s turn. Moon, who committed to the trip during his first summit with Kim at the Korean War truce village of Panmunjom on 27 April, traveled north with a packed agenda. Reprising the role of mediator that he played with some success in the first half of 2018, Moon will push Kim to take concrete steps on denuclearisation that could unblock talks with the U.S. He will also seek a commitment to reduce the constant risk of inter-Korean clashes in the Yellow Sea. An agreement could include the creation of joint fishing zones as a way-station to turning “the areas around the Northern Limit Line in the Yellow Sea into a maritime peace zone”, as per the Panmunjom Declaration that emerged from the April meeting.

Seoul is highly unlikely to jeopardise its reputation by violating UN Security Council resolutions in order to engage the North economically.

Moon takes with him a delegation of around 200 from not only government but also the commanding heights of Korean industry. Among the delegation are heads of the “Big Four” conglomerates – Samsung, Hyundai, SK Group and LG – as well as the chairmen of steelmaker POSCO and the Korea Development Bank. The presence of these captains of industry reminds North Korea of the peace dividend at stake, but it also shows that the South Korean government wants to make progress on economic engagement as a string of economic policy stumbles at home undermines business confidence.

The composition of the delegation is also a reminder that the South Korean government is chafing at restrictions on pursuing economic engagement with the North. Further evidence of its impatience came on 14 September, when the two Koreas opened a liaison office at Kaesong, just inside the North, another stipulation of the Panmunjom Declaration. The office, in which North and South Korean officials work on different floors with a meeting room in between, is designed to provide a reliable channel of inter-Korean communication but would also be central to coordinating future economic exchanges.

South Korea’s restricted economic latitude is an outcome of an international sanctions regime that was greatly strengthened in 2017 and of unilateral South Korean sanctions imposed in May 2010. The Moon administration’s private stance is that North Korea has earned some relief on sanctions. Seoul is, however, highly unlikely to jeopardise its reputation as a responsible global stakeholder by violating UN Security Council resolutions in order to engage the North economically.

Unfortunately, while China-North Korea relations have improved and South Korea has sought creative ways to engage the North within limited parameters, U.S.-North Korea talks have stagnated. The marked decline since Trump and Kim met in June prompted an awkward last-minute cancellation of Secretary of State Mike Pompeo’s fourth visit to Pyongyang in late August. Moon went to Pyongyang intent on trying to halt the slide.

The U.S. risks shouldering the blame for a lack of progress

The U.S. now finds itself in a bind. Washington’s insistence on securing immediate additional steps on denuclearisation (beyond the dismantlement of Pyongyang’s nuclear test site and missile engine test facility) before taking its own steps does not align with Seoul’s economic priorities. In neglecting this disconnect, the U.S. risks shouldering the blame for a lack of progress between the two Koreas, playing into North Korea’s strategy of driving a wedge into the U.S.-South Korea alliance.

For his part, Moon has sought to reassure his detractors, who argue that his rush to engage North Korea could weaken the U.S.-South Korea alliance. While senior ministerial officials were opening the inter-Korean liaison office in Kaesong, Moon was at Okpo Shipyard on Geoje Island in the far south of the Korean peninsula inaugurating an attack submarine for the South Korean navy. Seeking to calm the fears of national security conservatives at home and others abroad, he described South Korea’s inter-Korean strategy as one of “peace through strength”, adding that his administration sees a strong military – which his more hawkish opponents associate with close ties to the U.S. – as an essential precursor to peace on the Korean peninsula.

The deepening divide between the U.S. and South Korea is in part an outgrowth of Washington’s internal dysfunction. Many in Seoul perceive a disparity between Trump’s optimism about diplomatic progress with Kim and what they believe is the gloomier perspective of much of Washington’s national security establishment. While experts initially feared Trump was too confrontational and heedless of the cataclysmic costs of an inadvertent war with North Korea, the new conventional wisdom in Washington is that he is too easily manipulated.

One concern is that Trump will trade away the prize of a political declaration ending the Korean War without securing sufficient reciprocal concessions. Harder-line voices in Washington assert that Pyongyang could thus acquire powerful leverage to push the U.S. to withdraw its troops from the peninsula, since the main justification for their presence would be gone. While Trump might welcome the opportunity for withdrawal, seeing it as cost-saving, his security advisers and much of Washington’s national security establishment surely would not. The counter-argument is that Trump’s instincts are better than those of his advisers: he should give North Korea the relatively cost-free peace declaration and see what comes of it, without agreeing to a demand for withdrawal. These are important debates, but the manner in which they are playing out in Washington creates the sense of policy incoherence.

Whether or not the U.S. agrees to such a declaration, other measures could change the conversation. A clear expression of U.S. support for the inter-Korean liaison office, which has an important role in easing military tensions along the border, would help restore a sense of unified purpose with South Korea. Better yet, proposing that the U.S. open a “liaison office” of its own in Pyongyang would test North Korean intentions in an appropriate way. Though it would be an unusual step for Washington to take prior to the signing of a peace treaty, it would keep the U.S. in step with the flow of inter-Korean affairs. Seoul hopes that the new liaison office at Kaesong will be the precursor to opening diplomatic representations in the two Korean capital cities.

The new U.S.-North Korea relations promised in the joint statement issued after Trump’s meeting with Kim in Singapore on 12 June have already receded from view. The second half of September offers an opportunity for the three leaders to resume diplomacy and make up lost ground. When Moon and Trump meet on the sidelines of the UN General Assembly, the South Korean leader is bound to be carrying a message from Kim Jong-un. The North may be willing to make concessions to get things moving again. If so, the U.S. must receive Moon with an open mind and be ready to make some creative proposals of its own.

A billboard depicting Myanmar State Counsellor Aung San Su Kyi with the three military ministers in front of a background showing the building of the International Court of Justice in The Hague is displayed along a main road in Hpa-an, Karen State. AFP
Q&A / Asia

Myanmar at the International Court of Justice

On 10 December, the International Court of Justice convened to hear an opening request in a genocide case filed against Myanmar for its atrocities against Rohingya Muslims. In this Q&A, Crisis Group expert Richard Horsey looks at the legal and diplomatic stakes of these proceedings.

Why is Myanmar before the International Court of Justice?

The Gambia has lodged a case against Myanmar at the International Court of Justice (ICJ), the principal UN judicial body based in The Hague, alleging violations of the Convention on the Prevention and Punishment of the Crime of Genocide (usually known as the Genocide Convention) in Myanmar’s treatment of ethnic Rohingya Muslims. The charges stem from atrocities committed by Myanmar’s security forces in northern Rakhine State, which have forced over 700,000 Rohingya to flee to Bangladesh since August 2017. The Gambia, relying on the Convention’s provision that the ICJ can adjudicate disputes over such charges, brought this case on behalf of the 57-member Organisation of Islamic Cooperation. The allegations against Myanmar include responsibility for genocidal acts against the Rohingya and failure to prevent and punish genocide, among others.

The Gambia has also asked the ICJ to order “provisional measures”, the equivalent of an injunction in domestic law, authorising steps to protect the parties’ rights pending the case’s final adjudication. Hearings at the court from 10-12 December – at which Aung San Suu Kyi will represent Myanmar – are dealing with this request for provisional measures. Both The Gambia and Myanmar have retained top international lawyers as counsel.

The allegations against Myanmar include responsibility for genocidal acts against the Rohingya and failure to prevent and punish genocide, among others.

Two other countries – the Netherlands and Canada – have indicated that they will support The Gambia’s case. They have called on all state parties to the Genocide Convention to do the same. One possibility is that the Netherlands and Canada will become “intervening states”, a status that would give them access to court documents and the right to participate in oral proceedings, without being formal parties to the dispute.

A decision on provisional measures is expected within weeks. But the case itself will probably be long and convoluted, with the court taking years to render its final decision. The diplomatic and reputational impact is thus likely to be most immediate and consequential.

Why is Aung San Suu Kyi, Myanmar’s top civilian leader, speaking at the ICJ hearing this week and what does she hope to achieve?

In addition to a legal team, states involved in ICJ cases must nominate an “agent” empowered to represent the state and make commitments on its behalf. Aung San Suu Kyi is Myanmar’s agent, in her capacity as foreign minister (she also holds the title of state counsellor). A justice minister or an attorney general normally plays this role; it is extremely rare for a political figure of her prominence to do so. Aung San Suu Kyi likely feels that as the country’s de facto leader she has the primary responsibility to respond to The Gambia’s claims, and also that she is the person best qualified to do so – given her fluent English and experience on the world stage.

Aung San Suu Kyi’s public statements over the last two years, and what she is known to have said in private, suggest that she believes no genocide has occurred in the Rohingya case. She thinks that, on the contrary, the outside world has deeply misunderstood and exaggerated the Rohingya crisis. She no doubt intends to use the legal setting in The Hague to try to set the record straight. She also no doubt understands that the eyes of the world will be on her at this pivotal moment for Myanmar. The global audience – particularly in the West – will expect her to go much farther than she has in previous speeches in acknowledging the security forces’ wrongdoing and committing to address it. It remains to be seen how far she will go in this direction.

What impact will Aung San Suu Kyi’s appearance in The Hague have within Myanmar?

Views on the Rohingya crisis inside Myanmar are almost diametrically opposed to those outside the country. The near ubiquitous narrative in the country – coming from its leaders and promulgated by the local media – is that the outside world misunderstands what has happened with the Rohingya. Myanmar thinks that its primary problem is therefore one of communication: how to explain the “real situation” more clearly and effectively.

Since The Gambia filed the ICJ case on 11 November, and Aung San Suu Kyi decided to represent Myanmar personally in The Hague, a wave of nationalist fervour has swept the country. Billboards and mass rallies endorse her mission at the ICJ; even the military – her nemesis during fifteen years of house arrest – is giving her its unequivocal backing. The civilian government is likewise soliciting vocal support from the people for the state counsellor’s defence of the nation. President Win Myint’s wife even conducted a ritual at Aung San Suu Kyi’s “eternal peace pagoda” in Naypyitaw, invoking the spirits to confer success on her efforts.

Since [...] Aung San Suu Kyi decided to represent Myanmar personally in The Hague, a wave of nationalist fervour has swept the country.

This outpouring of support will play well for Aung San Suu Kyi’s National League for Democracy in the November 2020 elections, though electoral advantage is unlikely to be her primary motivation. Her stance for Myanmar in The Hague could also lead to a slight thaw in the chilly relations between the civilian government and the military. But the risk is that unleashing the forces of narrow nationalism will not only silence voices calling for human rights protections and greater tolerance for diversity in the country but also postpone any honest national reckoning with what happened to the Rohingya. Such an accounting is the only way that Myanmar can get out of its international legal and diplomatic predicament.

What impact will the ICJ case have on international perceptions of Myanmar?

A moment of truth is fast approaching. Part of Aung San Suu Kyi’s international audience at The Hague will consist of some Asian governments that are determined to maintain close bilateral ties with Naypyitaw. She might say enough to satisfy them, but she will have more difficulty meeting the expectations of Western governments. It is hard to imagine, moreover, given the documentation of the Rohingya’s plight, that she will convince the many sceptical observers in the global media and civil society that Myanmar’s state is misunderstood and unfairly maligned. In defending Myanmar as part of proceedings live-streamed worldwide, she will necessarily be defending the military against genocide charges. Anyone can easily compare the substance of this defence with the numerous third-party reports about why so many Rohingya fled northern Myanmar and how they are living stuck in Bangladesh. Anyone can also read about the Rohingya who continue to live in precarious circumstances at home. Myanmar could lose in the court of international public opinion well before the ICJ makes any legal ruling.