(This article was first published in Just Security on January 10, 2020.)
The United States finally has a Senate-confirmed war-crimes ambassador for the first time in 4½ years. Professor Morse Tan of Northern Illinois University College of Law will soon assume leadership of the State Department’s Office of Global Criminal Justice (J/GCJ), after winning confirmation in December, amid a seemingly expanding record of atrocities around the globe.
Nominated to the position — previously known as the Ambassador-at-Large for War Crimes and now called the Ambassador-at-Large for Global Criminal Justice — by President Donald Trump in April 2019, Tan fills a post that has been vacant since August 2015. Ambassador Kelley Eckels Currie, the former Deputy Ambassador of the U.S. to the United Nations in charge of the U.N.’s Economic and Social Council (ECOSOC), has headed the office for the past year on an interim basis. She too was recently confirmed, as Ambassador-at-Large for Global Women’s Issues (her statement to the Senate Foreign Relations Committee). While leading the Global Criminal Justice office, Currie helped formulate U.S. policy on a broad range of transitional justice and atrocity issues, especially the persecution of the Rohingya in Myanmar and the Uighurs in Xinjiang, China.
As Tan explained in his written statement for his October confirmation hearing before the Senate Foreign Relations Committee, the Global Criminal Justice office was established more than two decades ago to lead U.S. policy in responding to the atrocities in the former Yugoslavia and Rwanda. It now is a functional office within the State Department’s Under-Secretariat for Civilian Security, Democracy, and Human Rights.
In his confirmation statement, Tan emphasized his background as the child of Korean immigrants and his lifelong efforts to promote justice on the Korean Peninsula and elsewhere. An expert on North Korea (the Democratic People’s Republic of Korea, or DPRK), Tan has advised the U.S. government on its dealings with the rogue nation, including by calling for accountability for the country’s continuing gross human rights abuses.
U.N. Commission of Inquiry on North Korea
Tan’s work also informed the U.N. Human Rights Council’s Commission of Inquiry on North Korea, which was established with strong U.S. support (see our coverage here and here). In a harrowing report issued in February 2014, the commission determined that the regime had committed crimes against humanity for decades against six sectors of society: inmates in political prison camps and ordinary prisons (accounts from survivors are collected here in a film by Human Rights Watch), religious believers, persons trying to flee the country, communities subject to starvation, and persons abducted from other countries.
In addition to calling for sanctions and a criminal investigative mechanism, the commission recommended that North Korea be referred by the Security Council to the International Criminal Court (ICC), a proposal strongly supported by the General Assembly and the former U.N. High Commissioner for Human Rights, Prince Zeid Raad al-Hussein. South Korea also expressed its support for a referral and reiterated it following the February 2017 assassination of Kim Jong Un’s half-brother in Malaysia with a nerve agent. While he was a law professor at Northern Illinois University, Tan also expressed support for the ICC taking action, writing an open letter to the U.S. government after North Korea tested its first inter-continental ballistic missile (ICBM) in July 2017.
So far, however, no viable route to the ICC has emerged. Although North Korea is not a party to the ICC statute, South Korea joined the court in 2002. As such, crimes committed on South Korean territory, or by its nationals, are within the court’s purview. In 2010, the ICC Office of the Prosecutor opened a preliminary examination on alleged war crimes committed in South Korea, following North Korean attacks earlier that year on the Cheonan warship and the South Korean island of Yeonpyeong. Because these events occurred on the territory of South Korea, they fell within the court’s territorial jurisdiction. (The Office of the Prosecutor conducts a preliminary examination to determine whether the court’s threshold jurisdictional and admissibility requirements have been met).
In 2014, however, the preliminary examination was closed based on a determination that the situation did not satisfy the jurisdictional requirements to launch a full criminal investigation. The Cheonan vessel was deemed a lawful military objective, and so the attack did not constitute a war crime. Although the shelling of the island resulted in civilian deaths, ICC Prosecutor Fatou Bensouda determined that:
the information available on this incident [did] not provide a reasonable basis to believe that the attack was intentionally directed against civilian objects or that the civilian impact was expected to be clearly excessive in relation to the anticipated military advantage.
Bensouda emphasized, however, that “[s]hould further information become available in the future which would lead the Office to reconsider its conclusions in the light of new facts or evidence, the preliminary examination could be re-opened.”
The ICC has no jurisdiction over events in North Korean territory absent a Security Council referral. In 2014, the Security Council considered events in North Korea, but it was clear that China and Russia would not support a referral (indeed, the pair opposed even putting the country on the council’s agenda), and the issue was never put to a vote.
Although the U.S. Office of Global Criminal Justice was almost disbanded in 2017 (the Office of Global Women’s Issues was also in jeopardy), the office was saved — and ultimately strengthened by Congress — after an outcry from civil society, former ambassadors-at-large, the press, commentators, and a bipartisan coalition in Congress. In an earlier post on Just Security, Georgetown Law Professor Jane Stromseth explained the importance of having a Senate-confirmed ambassador-at-large to lead on issues of international and transitional justice within the inter-agency process, with key U.S. allies, and in multilateral fora.
Ambassador Tan will have his hands full. News and other reports make clear on a daily basis that the world is contending with multiple atrocities that have occurred across the globe and that demand justice, as well as those threatened or underway. And that’s not to mention the unfolding matters at the ICC concerning Afghanistan and Israel/Palestine. In this regard, it will be important for Ambassador Tan to normalize relations with the court, after former National Security Advisor John Bolton’s bellicose stance and amid continuing criticism from U.S. officials such as Tan’s new boss, Secretary of State Mike Pompeo.