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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
Venezuela: International Criminal Court Probe Puts Maduro in a Quandary
Venezuela: International Criminal Court Probe Puts Maduro in a Quandary
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.

International Criminal Court prosecutor Karim Khan and Venezuela's President Nicolas Maduro shake hands during a meeting at the Miraflores Palace, in Caracas, Venezuela, November 3, 2021. Miraflores Palace/Handout via REUTERS
Q&A / Latin America & Caribbean

Venezuela: International Criminal Court Probe Puts Maduro in a Quandary

The International Criminal Court has announced an investigation into crimes against humanity committed during Venezuelan opposition protests in 2017. In this Q&A, Crisis Group expert Mariano de Alba explains that it remains unclear how the enquiry will proceed.

What happened?

On 3 November, at the end of a three-day visit to Venezuela, Karim Khan, the new Prosecutor of the International Criminal Court (ICC), announced that he will launch an investigation into crimes against humanity in the country. These include allegations of systematic human rights violations during the massive demonstrations that engulfed Venezuela between April and July 2017, when the confrontation between the Maduro government and the opposition hit a peak. According to the Office of the UN High Commissioner for Human Rights, 124 protesters died and over 5,000 were detained. 

To cap off his visit, the Prosecutor signed a memorandum of understanding with President Nicolás Maduro. The memorandum both acknowledges the Prosecutor’s decision to proceed with the investigation and records Venezuela’s perspective that this step was unwarranted since national authorities should handle the allegations. On its face, it keeps open the possibility that Caracas may (with the Prosecutor’s cooperation) take another shot at holding perpetrators accountable, stating that Venezuela will “adopt all necessary measures to ensure the effective administration of justice, in accordance with international standards, with the support and active engagement of the Office of the Prosecutor”. But it also contemplates that the Prosecutor may deem those efforts unsatisfactory and notes the obligation to “facilitate the effective discharge of the Prosecutor’s mandate” on Venezuelan territory. 

It is the first time that crimes committed in the Americas have come under formal ICC investigation.

The Prosecutor’s decision to open the investigation is, in many ways, a landmark. It is the first time that crimes committed in the Americas have come under formal ICC investigation. Khan made his move based in part on the conclusion that, so far, Venezuelan authorities have proven unwilling or unable to mount a genuine effort to bring the alleged perpetrators to justice. A fact-finding mission set up by the UN Human Rights Council concluded in September that Venezuela “is not taking tangible, concrete and progressive steps to remedy violations, combat impunity and redress the victims through domestic investigations and prosecutions”. Various victims’ associations in Venezuela had called upon the ICC Prosecutor to move to a formal investigation, saying they will never get redress from the country’s judicial system or its political masters.

How did the investigation start and what will it focus on?

The mass protests in 2017 were sparked by Maduro’s moves to strip the opposition-held National Assembly of its powers and replace it with a Constituent Assembly fully controlled by the government’s coalition. These demonstrations were by many accounts met with excessive and, in numerous cases, lethal force. Security forces made thousands of seemingly arbitrary arrests, and many of those detained were reportedly abused or maltreated. 

The ICC Office of the Prosecutor took up the matter in 2018. In February, it opened a “preliminary examination”, which is the process by which it determines if an investigation is warranted. In September 2018, Argentina, Canada, Colombia, Chile, Paraguay and Peru formally referred the situation in Venezuela to the Office of the Prosecutor, throwing their weight behind an investigation. The group of states also asked for the probe to be broadened to cover events from February 2014, when an earlier set of protests generated widespread violence. 

Late in 2020, the Office shared publicly that it had found a reasonable basis to believe that crimes against humanity had been committed. It also made clear that it had decided to focus attention on the allegations relating to the period since April 2017, and particularly on reports of arbitrary detentions carried out by civilian authorities, the armed forces and pro-government individuals, which in many cases reportedly led to torture, sexual violence and persecution of opposition supporters. The Prosecutor might decide to look at other alleged crimes at a later stage.

The Office of the Prosecutor has already identified branches of the Venezuelan security forces alleged to have been involved in the crimes under investigation. These include, among others, the Bolivarian National Police, the Bolivarian National Guard, the Special Action Forces, the Directorate General of Military Counterintelligence and units of the Bolivarian National Armed Forces. In keeping with ICC policy, prosecutors will start by looking at allegations of individual criminal responsibility on the part of high-level officials in these forces, which have played critical roles in stamping out dissent on behalf of the Maduro government.

Meanwhile, in February 2020, the Maduro government asked the Office of the Prosecutor to initiate another “preliminary examination”, arguing that the application of U.S. sanctions on Venezuela constitutes a crime against humanity. That exploratory enquiry has been opened and is still under way.

How have Venezuelan authorities responded to the ICC's efforts so far?

Caracas’ position is that the Prosecutor should not have undertaken the investigation. Maduro said he respected Khan’s decision, but he added that “we have made clear we do not share it”. 

Months before Khan’s visit, Venezuelan authorities quibbled with the conduct of the preliminary examination, arguing before a pre-trial chamber of the Court that the Prosecutor’s office was not sharing enough information with the government and hindering cooperation. In July, the chamber rejected Venezuela’s request that it assert judicial control over the examination. The memorandum of understanding seems to be an effort to move past these disagreements and create the foundation for a better working relationship in the future – it specifically calls for the creation of “mechanisms to enhance cooperation between the Parties” – but it is still unclear whether Venezuelan authorities will actually abide by the promise to collaborate.

Venezuelan authorities have sought to prove that they are willing to take modest steps in the direction of accountability.

Aware that the ICC Prosecutor’s decision to move into the investigatory phase was looming, Venezuelan authorities have sought of late to prove that they are willing to take modest steps in the direction of accountability. They have released some political prisoners, rushed to improve conditions at detention centres and prosecuted low-level officers involved in the type of crimes the ICC is looking at. A Venezuelan tribunal, for example, sentenced a military officer to 23 years in prison for murdering a young protester outside a Caracas military airport in 2017. (Only weeks earlier, another tribunal had acquitted the officer – a decision that the Attorney General’s office quickly challenged.) 

Yet if Caracas is seeking to persuade the ICC Prosecutor to turn back from his investigation based on the idea that it is taking adequate steps on its own, trying low-level officers is unlikely to meet the bar. The government’s main dilemma is that the ICC’s longstanding practice is to focus on holding accountable those most responsible for the crimes in question; in many cases, those people may be precisely the individuals that Caracas most wishes to shield.

How is the investigation phase likely to proceed?

Khan’s main task now will be to assemble evidence of criminal responsibility and determine against whom, if anyone, to bring charges. Due to the Court’s limited resources and expanding docket, the Prosecutor’s policy is to focus on a relatively small number of individuals. As noted above, ICC policy is to pay the greatest attention to those most responsible for the most severe crimes. 

The memorandum of understanding states that no “suspect or target” has yet been identified, which is consistent with the investigation being in its early stages. The question will be whether it is possible to identify such individuals. Developing evidence that can stand up in court is no small task. Until now, international efforts like the fact-finding mission set up by the UN Human Rights Council have used “reasonable grounds to believe” as their standard of proof, but in order to convict, the Prosecutor must be able to prove the accused’s guilt “beyond reasonable doubt”. Moreover, the Office of the Prosecutor is likely to struggle if it cannot rely on national authorities to investigate on its behalf. Local prosecutors usually have extensive access to evidence and witnesses in their own countries, and can carry out inspections and searches without major obstacles, a capacity that the ICC lacks.

If, notwithstanding the memorandum, Venezuelan authorities are unwilling to offer meaningful cooperation, Khan’s office could look for ways to pursue the probe nonetheless. For instance, it could ask other states or international organisations for cooperation. 

Finally, during the investigation phase, the Prosecutor can request a pre-trial chamber of the Court to issue an arrest warrant if it can show “reasonable grounds” that someone committed a crime. Even then, however, the ICC must look to state parties to apprehend and deliver the individual in question to The Hague, which the ICC Rome Statute requires them to do. This will be challenging if by then Caracas has decided not to cooperate and the accused officials stay inside Venezuela or restrict their travel to countries that are unwilling to detain them.

Will the memorandum of understanding stand the test of time?

It remains to be seen. The decision to open an investigation shows that the Office of the Prosecutor has enough information of serious criminality to warrant a full enquiry. At the same time, the fact that Venezuelan authorities have recently taken conspicuous yet still insufficient steps to address past crimes suggests that they are not indifferent to the investigation’s likely effects on the government’s international reputation and its grip on power.

Venezuela’s own efforts to stave off the ICC could heighten tensions within the government.

The conundrum is that Venezuela’s own efforts to stave off the ICC could heighten tensions within the government. If the government wants to persuade the Prosecutor not to advance with the ICC probe, it will likely have to allow the prosecution inside Venezuela of high-ranking officers allegedly most responsible for the crimes under investigation. Depending on how senior the officers are, such prosecutions could create tremendous blowback in the government coalition, above all in its police and military wings. Until now, and particularly during the last three years of bitter political feuding between government and opposition, chavismo has cherished loyalty within its ranks. Going after high-level officials could alter those people’s appraisal of the benefits of remaining doggedly faithful to the government.

An additional challenge for the government is that genuine prosecutions of the sort demanded by the ICC would also require an overhaul of the Venezuelan justice system, which has deteriorated over recent decades and grown deferential to the executive. The judiciary lacks independence and is rife with corruption. (According to the fact-finding mission appointed by the UN Human Rights Council, there are reasonable grounds to believe that “Supreme Tribunal justices routinely receive orders with respect to how to decide judgments”.) The announcement in September by the government and opposition delegations at the Norway-led negotiations in Mexico that they would start discussions on the justice system could have given a boost to reform efforts. But the government has suspended its participation in the talks following the extradition by Cape Verde to the U.S. of a businessman linked to Maduro’s government.

How patient is the Prosecutor likely to be?

Ultimately, much depends on Prosecutor Khan’s assessment of whether the Venezuelan-led enquiries move fast enough and go after the right people. Even in opening the investigation he signalled that he will defer to the principle of “positive complementarity”. This principle entails that the ICC steps in only when states are unwilling or unable to carry out genuine investigations and prosecutions. It also means that Khan’s office will actively support states willing to cooperate and show deference to their national judicial systems. That is why, just before visiting Venezuela, he closed the seventeen-year preliminary examination in Colombia for war crimes and crimes against humanity, having been assured that Colombian authorities will back the judiciary and the Special Jurisdiction for Peace (a mechanism created by the country’s 2016 peace accord), all while cooperating with the ICC. Likewise, the Prosecutor confirmed in his formal announcement of the Venezuela investigation that his “office will support any sincere and meaningful effort undertaken by the Venezuelan Government to reform and revitalise the justice and penal system in order to enable genuine accountability in Venezuela for the victims of alleged crimes”.

But the Prosecutor’s deference is unlikely to be indefinite. He may well change his approach if Venezuelan authorities fail to make quick and meaningful progress on accountability and judicial reform. For a government so determined to ensure its political control and the loyalty of its coalition, overhauling the justice system and prosecuting senior officials is a price that will be hard to bear.