[Interview] Kwon Ogon on NIS SIGINT, "Evidentiary Power of 'Kim Jong-un Indictment'"

Kwon Ogon, Former President of the Assembly of States Parties to the International Criminal Court
"Detailed Data Accumulation Needed to Establish North Korea's Responsibility"
"Diplomatic Efforts with Like-minded Countries Are Crucial"

In May 1999, the international community put a 'sitting' head of state on trial for the first time in history. Slobodan Milo?evi?, then President of the Federal Republic of Yugoslavia, known as the 'Butcher of the Balkans,' was indicted. He was accused of committing crimes against humanity and large-scale massacres known as 'ethnic cleansing' during a brutal civil war. Among the judges who held the scales in the 'trial of the century' that began in February 2002 was Kwon Oh-gon, then a permanent judge at the International Criminal Tribunal for the former Yugoslavia (ICTY). Later becoming the chairperson of the Assembly of States Parties to the International Criminal Court (ICC), he left a record as South Korea's first and longest-serving international judge.

Someday, the international community will have to judge another 'dictator.' This is Kim Jong-un, Chairman of the State Affairs Commission of North Korea, who has perpetuated crimes of exploitation, arbitrary torture, and execution of countless residents over three generations. What preparations should our government make to hold him accountable? On the 26th, at an international conference on 'Responding to North Korean Forced Disappearance Crimes' hosted by the Transition Justice Working Group (TJWG) and Yonsei University Graduate School of International Studies, we met former Chairperson Kwon Oh-gon. We sought his opinion, having judged crimes of war criminals and dictators from Milo?evi? to Radovan Karad?i?, President of the Republika Srpska.

'Establishing Responsibility of the Kim Family Requires Detailed "Evidence Accumulation"'

Kwon Oh-gon, former President of the Assembly of States Parties of the International Criminal Court (ICC), is delivering a congratulatory speech at Yonsei University in Seoul on the 26th during an international conference hosted by the Transitional Justice Working Group (TJWG) and Yonsei University Graduate School of International Studies on the theme of "Response to Crimes of Forced Disappearances in North Korea."
[Photo by Transitional Justice Working Group]

In the issue of 'North Korean human rights,' there is the 'perpetrator entity' of the Kim family and the Workers' Party that supports them. Although the UN and numerous domestic and international NGOs recommend improvements, expecting change is difficult. Ultimately, 'evidence collection' to establish Kim Jong-un's responsibility is key.

Former Chairperson Kwon said, "What the government can do now is to 'accumulate' evidence to prove Kim Jong-un's charges," adding, "It is essential to meticulously investigate and record testimonies from high-ranking defectors or insiders, as well as gather linkage evidence." This is to prove that the crimes committed by North Korean authorities were under the 'orders' or 'tolerance' of the supreme leader. He likened this to a 'puzzle game,' where pieces must be collected so that responsibility can be traced from the crime scene up through the command chain to Kim Jong-un.

The intelligence agencies are presumed to hold the most sensitive information on North Korea. When asked whether SIGINT (signals intelligence) held by the National Intelligence Service could serve as evidence to prove crimes, he said, "If the NIS has accumulated wiretapping data on the North Korean leadership, it could be recognized as evidence in the future." This comes from experience. In fact, during his handling of the Yugoslav case, intercepted phone calls of Karad?i? recorded by Bosnia during the war and satellite images of mass graves taken by the CIA were used as key evidence.

In this context, former Chairperson Kwon highlighted several roles for intelligence agencies. He said, "There is primary investigation of defectors and information gathering through diplomatic envoys, but sharing intelligence with allies like the United States is important," recalling, "One of the strongest pieces of evidence in the Milo?evi? case was satellite images taken and released by the U.S." He emphasized that after these images were made public, when bodies were moved and reburied elsewhere, the U.S. took new satellite photos capturing this, underscoring that space and satellite technology could also be utilized to bring Kim Jong-un to criminal trial.

North Korea Accountability Mechanism: "Diplomatic Power Is the Key"

Kim Jong-un, Chairman of the State Affairs Commission of North Korea. [Image source=Yonhap News]

The ICC has jurisdiction over four crimes: genocide, crimes against humanity, war crimes, and aggression. North Korea seems to meet all conditions, but Kim Jong-un cannot be indicted immediately because North Korea has not joined the Rome Statute, the foundation of the ICC. Even if a country is not under ICC jurisdiction, cases can be referred through the UN Security Council. During the 'Kim Jong-nam assassination case,' our government urged the indictment of Kim Jong-un and other North Korean leaders but did not submit a resolution. As China and Russia, permanent members of the Security Council, back North Korea, referral through the Security Council seems difficult.

Former Chairperson Kwon noted, "It has been 10 years since the UN Commission of Inquiry (COI) on North Korean human rights released a report exposing North Korea's crimes against humanity, and we are witnessing important progress." Independent bodies with 'specific' authority to analyze evidence of human rights violations and prepare reports to pursue judicial accountability at international tribunals have been established, such as the Independent Investigative Mechanism for Syria (IIIM) and the Independent Investigative Mechanism for Myanmar (IIMM). Given that the 'Panel of Experts' monitoring North Korean sanctions was dissolved by Russia, there are calls to create a new monitoring body with the authority to establish accountability.

He emphasized that how much diplomatic power the Yoon Suk-yeol administration, which has declared 'value diplomacy' as its banner, exerts is also a crucial factor. He explained, "For an accountability mechanism to be established for North Korea, like those for Syria and Myanmar, broad support from many member states at the UN General Assembly or Human Rights Council is necessary," adding, "Efforts to expand consensus and influence with countries that share values are very important."

"We Must Expand Influence Among Countries Sharing Our Values"

At an international conference held on the 26th at Yonsei University in Seoul, organized by the Transitional Justice Working Group (TJWG) and Yonsei University Graduate School of International Studies on the theme of "Response to North Korean Forced Disappearance Crimes," participants are taking a commemorative photo. Attendees included Kwon Oh-gon, former Chair of the Assembly of States Parties to the International Criminal Court (ICC); Lee Jung-hoon, Chair of the Ministry of Unification's Future Planning Committee for Unification; Baek Beom-seok, Advisor to the United Nations Human Rights Council; Min Yong-jun, Legal Officer at the United Nations International Residual Mechanism for Criminal Tribunals (IRMCT); Patrick Ball, Research Director of the Human Rights Data Analysis Group (HRDAG); as well as officials from the Ministry of Foreign Affairs and the Ministry of Justice.
[Photo by Transitional Justice Working Group]

Former Chairperson Kwon shared an anecdote, saying, "South Korea has now started to speak out when it is time to do so." During his tenure as chairperson, the ICC began investigating alleged war crimes by Israel in Palestinian territories. The U.S. then imposed sanctions on Fatou Bensouda, then ICC Prosecutor, pressuring not to target an ally. A statement of protest was issued under Kwon's leadership, but South Korea did not participate.

South Korea remains the closest ally of the U.S., but differences have emerged. It was revealed that Yossi Cohen, then head of Israel's intelligence agency Mossad from 2016 to 2020, threatened Prosecutor Bensouda, and an arrest warrant was issued for Prime Minister Netanyahu. On the 14th (local time), 93 out of 124 ICC member states issued a joint statement opposing external pressure. South Korea was among them. Even if the U.S. protests, South Korea has begun to say 'no' when something is wrong. Former Chairperson Kwon urged, "It is necessary to 'consistently' show that we act together with countries sharing our values."

▶Who is Former Chairperson Kwon Oh-gon?

Born in September 1953 in Cheongju, Chungbuk Province. He graduated from Seoul National University Law School in 1976 and passed the 19th Judicial Examination (9th Judicial Research and Training Institute) the following year. He earned master's degrees in law from the same university and Harvard Law School. From 1979, he served as judge and presiding judge at various courts including Seoul District Court, Suwon District Court, and Daegu High Court for 22 years. From 2001 to 2016, he was a permanent judge at the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY), and from 2017 to 2021, he served as chairperson of the Assembly of States Parties to the International Criminal Court (ICC). His tenure as an international judge spanned 21 years. Currently, he serves as an advisor to the Constitutional Court, director of the International Law Research Institute at Kim & Chang Law Firm, and was appointed chairperson of the Supreme Court Judicial Policy Advisory Committee in June this year.