[OUTLOOK]Kim Jong-il's Accountability for the Past
Dumbfounded controversy followed a political science professor's recent claims that Kim Jong-il, chairman of North Korean National Defense Commission, is not accountable for the 1950-1953 Korean War and that there is no evidence he orchestrated the 1987 bombing of a Korean Air passenger plane.
Chairman Kim should not be held liable for the fratricidal war, the professor argued, because it broke out when he was a mere child. As for the bombing of the KAL passenger jet, the professor claimed that no evidence exists that Chairman Kim masterminded this act of terrorism, nor is it possible to investigate the case now, and therefore, they are not incidents for which he needs to apologize before his visit to Seoul. Even more astounding are the professor's legally flawed assertions, such as that an acquittal of judicial accountability is automatically given to Mr. Kim should he offer an apology, or that the matter should be settled in court, rather than through an apology.
Since the professor's claims are not based on any legal logic, it seems pointless to denounce them from the legal perspective. First of all, he seems to be confused about the principles of international law, and the difference between a state's and an individual's legal accountability for the commission of criminal acts.
When one country invades another, the state or the principals involved have to be held accountable under international law. That the current head of state had been a child at the time an act of aggression was committed cannot be grounds for impunity. This legal aspect has to be clearly distinguished from the individual accountability of those who directly conspired to, or decided to, launch a war of aggression. When we talk of holding Chairman Kim accountable for the Korean War, we are talking about his responsibility as the head of the state that launched the war, not his criminal liability as an individual.
As for the KAL bombing, it has been judicially proved through the arrest and confession of the bomber that the North Korean government was systemically involved in the act of terrorism. Saying that there is no evidences and that it is hardly possible to press the charges now are not responsible claims. It is incomprehensible that the professor chose to speak as though the truth of the bombing case has to be unearthed through objective investigation. Most of the facts have already been ascertained through lengthy judicial investigations and court proceedings. The chance that Chairman Kim will be accused and the extent of his criminal liability will rise depending on the degree of his direct involvement in the terrorist bombing. Apart from this, however, if it is clear that the North Korean regime has committed a criminal act, its accountability as a state is plain in accordance with international law, as is Chairman Kim's accountability as the head of North Korea.
Moreover, just because the head of state or the culprit issued an apology for criminal acts accountable under international law, it does not follow that the person is acquitted of legal responsibility. While an apology can be grounds for extenuating the punishment, it does not exonerate the person from the duty to assume judicial responsibility. It is, therefore, groundless to talk as if it would be difficult to hold Chair-man Kim legally accountable later if we accept an apology now.
The KAL bombing case involves highly complex legal issues. First of all, there is the matter of the state's accountability if the North Korean government's involvement is clear beyond doubt. Then there is the criminal liability of Chairman Kim as an individual, depending on his complicity. The victims' families can hold the North Korean regime liable for compensation, as well as Chairman Kim as an individual for compensation for civil damages if he is found to be involved. In either case, he cannot be absolved from assuming legal responsibility or undergoing investigation even if he decides to issue an apology. It seems the professor became confused because of the complexity of these legal aspects. I wish to believe that the professor made his statements in hopes of eliminating the stumbling blocks to North-South summit talks, considering their importance. I also wish to believe that he made such baffling statements due to his lack of legal knowledge. But it is regrettable that a university professor, who was the vice president of the ruling party's management and strategic research institute, should have made assertions with such a great room for misunderstanding.
The whole nation hopes to expand exchanges and cooperation with North Korea and establish peace on the Korean Peninsula. In order for this to happen, it is extremely important for the heads of the North and the South to meet and productively deal with inter-Korean issues. If someone proposes not to discuss the issue of Chairman Kim's legal accountability for fear of creating possible barriers to achieving these great national goals, the majority of the people, although unhappy with the call in the current circumstances, will nevertheless understand.
The writer is the president of the Graduate School of Law at Transnational Law & Business University.
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