Harold Hongju Koh Interview: Conversations with History; Institute of International Studies, UC Berkeley

Transnational Legal Process and World Order: Conversation with Harold Hongju Koh, Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale, October 3, 2003, by Harry Kreisler
Photo by Jane Scherr

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U.S. Policy Toward North Korea

All that we've been talking about -- the difference between the Clinton and the Bush administrations; the new problem after 9/11, that is, the threat from either rogue states or terrorist groups obtaining nuclear weapons, and trying to use them on the American homeland, leading to the Bush administration view of the need for preemptive strikes -- all this comes together in the case of North Korea. I'd like to talk a little about that. You can bring a special insight at many levels; your background, but also your work as a lawyer and in the government. Share with us some observations how these two contrasted views come together in the question of how to deal with North Korea.

When I went to North Korea in November, 2000, with Madeline Albright, it was the highest visit by an American official to meet Kim Jong-Il. From 1994 to 2001, Kim Jong-Il had entered into this agreed framework where he agreed to restrain nuclear construction in exchange for food, energy, etc. North Korea is a failed state under his leadership, and the clear impression that we had at the time was if we can lure Kim Jong-Il into participating in a legal framework, he will start to do things as part of this contractual agreement that will bring him more and more into the world system. It's not [so different than] the idea of Nixon going to China.

What I saw of him is, he's strange, but he is not crazy. He desperately wanted to be closer to the world system. He wants to be part of it. He wants to be, in some ways, recognized by it. Our meeting went very well. And then it was discovered that, in fact, he had been continuing his nuclear development. In other words, this agreed framework had not worked perfectly.

And this discovery was made in the Bush administration, wasn't it?

Yes. Now, my view is that's a little bit like discovering the speed limit of 60, but people are going 65. The fact that the law is not working perfectly doesn't mean that it's not having a restraining force. In fact, the Bush administration doesn't deny that the existence of this legal framework meant fewer nuclear weapons in North Korea than there would have been. Plus, it created a framework of cooperation.

What they do is they break off the talks, and then start making threatening statements about Kim Jong-Il -- in particular, this claim that he's part of this "axis of evil" that includes Iraq. Then it becomes clear that we're going to attack Iraq. Now, if you're Kim Jong-Il, you've been cooperating; suddenly, without much change in your own behavior, you're being identified as part of this axis of evil. I think he reasonably concluded from his perspective, "I better get myself some more bargaining chips," and he started building more weapons.

Then the United States was in a box, because at this point we didn't have the negotiators who had negotiated the previous deal. We'd abandoned the previous framework. We had created this feeling of hostility, and we couldn't use military force, because it was too dangerous to use it because of the proximity of Seoul to North Korea. So what happened after a couple of years in which this whole framework disintegrates, North Korea builds more weapons. We start trying to develop another multilateral framework. We've moved from one agreed framework to an effort to create a second one. My view is we never should have abandoned it in the first place.

I'll tell you, Harry, the greatest tragedy from my perspective was when we flew out of North Korea into the South, there was an incredible moment. In North Korea, it's all-dark, there's no electricity. And we flew into South Korea, then suddenly somebody said, "Look, there's Seoul." It was just millions of lights, and I thought to myself, "That's democracy." You know, these people, they're the same people. The only difference between the North and the South is the political system they live under. And look at all this light, all this prosperity. We landed and we went to see Kim Dae-jung, who had worked with my father, now a Nobel Peace Prizewinner. He said, "I have this dream now. The North and the South can be like a federated Germany. They can try to [create] an Organization for Security and Cooperation in Asia." We left and we flew back to America, and I said to myself, "I'm going to see Korea reunited in my own lifetime."

The thing he said that really stunned me was at one point, Kim Dae-jung, the President of South Korea, said, "I would like to see the World Cup semifinal played in North Korea." Well, what happened, the Bush administration broke off the talks; the World Cup semifinal was played in South Korea. I don't know if you remember, but the people who played were Germany and South Korea. If Kim Dae-jung's dream had been carried out, a reunited Germany would have played South Korea in a World Cup in North Korea. Every camera in the world would have been there. The North Koreans would have been cheering for the South Koreans. It would have opened up that country. Think about what "ping-pong diplomacy" did to China, a much larger country. They never could have closed the box again. A process would have begun in Kim Jong-Il's North Korea that he could not have closed off. Pandora's Box of democracy would have been opened.

I think about that all the time, because since then it's been a couple of steps back. Now, we're moving back in the right direction, but I really do want to see Korea reunited in my lifetime. That was my father's dream, and I'd like to see that dream come true.

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