The Malaysia-North Korea Hostage Crisis – An International Law Perspective

I. Introduction

Based on currently available information, Malaysia and North Korea’s diplomatic ties spanning four decades was gravely damaged when Kim Jong Nam, the estranged brother of Kim Jong-un was assassinated at KLIA on 13th February 2017. Tensions between the two countries escalated when the North Korea ambassador, Kang Chol, criticized the handling of the case by Malaysian authorities, even going as far as to accuse Malaysia of being untrustworthy and colluding with other nations to defame North Korea. [1]
 
As a result, he was declared a persona non grata[2]—likely the first of which has ever happened to a diplomat stationed in Malaysia—and therefore, expelled from the country. Persona non grata, which is provided for in Article 9 of the Vienna Convention of Diplomatic Relations 1961, an international convention to which both Malaysia and North Korea are parties to, allows a receiving state to “notify the sending State that the head of the mission or any member of the diplomatic staff of the mission ... is not acceptable.” At which point, “the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission.”[3] If the sending State refuses or fails within a reasonable period to carry out its obligations to recall the person, the receiving State may “refuse to recognize the person concerned as a member of the mission.” [4]
 
In other words, the foreign diplomat would no longer be welcomed in the receiving state, nor would they continue to enjoy diplomatic immunity under the Vienna Convention. Declaring a diplomatic staff as persona non grata could be considered to be one of the harshest diplomatic measures[5] a state can take against another state.
 
Not surprisingly, North Korea retaliated by similarly declaring Malaysia’s ambassador, Mohamad Nizan Mohammad, a persona non grata[6]. Soon after, North Korea decided to impose a travel restriction on Malaysians who are in their country[7], from leaving North Korea. In retaliation, Malaysia has decided to do the same shortly after the decision was made to North Koreans who are currently in this country[8].
 
The Malaysian Prime Minister, Najib Razak, in announcing the retaliatory travel ban, released a statement stating that North Korea’s act of holding Malaysian citizens as “hostages” [9] is in “total disregard of all international law and diplomatic norms.” [10] However, this begs the question, is the decision to ban foreign citizens from leaving one's country (be it North Korea or Malaysia) a breach of human rights and/or in compliance with international law?
 
This article aims to study the relevant treaties under international law with regards to the travel ban and to determine if any breach of international law was committed by both Malaysia and North Korea.

​II. The Law – Whether there was a Breach?
 
The decision to forbid foreign citizens from leaving one’s country is in breach of the Universal Declaration of Human Rights and 3 International Conventions. However, whether a convention is binding on a state largely depends on whether the state has signed it, ratified it or the convention has obtained the force of Customary International Law . We will analyze each of those sources of international law below.
 
A)    Universal Declaration of Human Rights
 
When it comes to human rights, the best document to refer to would be the Universal Declaration of Human Rights (UDHR), as it is the common standard for every nation to follow. Article 13(2) of the Universal Declaration of Human Rights states that; “Everyone has the right to leave any country, including his own, and to return to his country.” This highlights the right of an individual to leave a country. If we were to follow the provision highlighted in the UDHR, then North Korea and Malaysia would be in contravention of Article 13(2) when they decided to restrict the movements of the people and disallow them from leaving each other’s country. However, as this document is merely a declaration, there is no legal obligation for nations to actually adhere to the provisions in the UDHR.
 
B)    International Covenant on Civil and Political Rights
 
While North Korea is a party to the International Covenant on Civil and Political Rights (ICCPR), Malaysia isn’t. This means North Korea has infringed Article 12 (2) and (4) of the ICCPR which expressly states that no one should be deprived of his rights to leave or enter his country. Depriving a person from leaving a country can be said to be an infringement of their fundamental human rights to live with dignity, to have the right to life, liberty, and security, as in the UDHR[11] as well as the ICCPR[12]. However, the ICCPR also provides for exceptions to this right under Article 12 (3), which are “restrictions provided by law, (that) are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.” In light of these permitted restrictions, North Korea’s intention for banning Malaysians from leaving its country, which is to ensure that the investigation into Kim Jong Nam’s death “is properly solved” [13] to their satisfaction, does not seem justifiable through the exceptions laid down.
 
On the other hand, as Malaysia did not sign nor ratify the ICCPR, we are not bound by its provisions.
 
C)    International Convention Against the Taking of Hostages
 
Other than that, we also have the International Convention Against the Taking of Hostages 1979, where Article 1 states that; “Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person … in order to compel a third party, namely, a State, … to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages … within the meaning of this Convention.”
 
This means the convention prohibits the act of taking any person as a hostage for reasons to compel another state to do or abstain from doing any act[14]. Both Malaysia and North Korea are parties to this treaty[15], which could mean that if the current situation is interpreted as ‘hostage taking,' both nations may have breached the provisions of a treaty they’ve signed and ratified.
 
The question to ask now is whether the act done by North Korea in banning Malaysians from leaving its country, an act of hostage taking? The same goes for Malaysia who has retaliated by doing the same thing to the North Koreans in our country. In my humble opinion, the act does constitute a form a hostage-taking as defined under Article 1[16] of the convention, wherein a state cannot take a person hostage simply to persuade or compel another state to do something.
 
As of 15th of March 2017, of the eleven Malaysians initially trapped by the travel ban, there are nine remaining at the Malaysian embassy in Pyongyang who is unable to leave North Korea—two of U.N’s World Food Programme Malaysian employees were recently allowed to leave [17]. The purpose of the travel ban, according to North Korea, is to ensure that the investigation into Kim Jong Nam’s death is “properly solved.” [18] In the present case, the elements of detention in order to compel a state from doing or abstain from doing any act as an explicit or implicit condition for release as required in Article 1 is present.
 
Similarly, according to official records, including North Korean embassy staff, there are about 315 North Koreans[19] in Malaysia that are affected by the retaliatory travel ban imposed by the Malaysian Government, most of them students and workers. [20] The purpose of the travel ban, according to Prime Minister Najib Razak, is “until we are assured of the safety and security of all Malaysians in North Korea.” [21] As such, it seems that the elements of detention and compulsion for a state to do or abstain from doing something are present as well, although Malaysia might have a defense to our actions, which will be discussed later.
 
But as it stands, it seems like both North Korea’s and Malaysia’s actions are in breach of Article 1 of the International Convention Against the Taking of Hostages 1979, to which both countries are parties to. Under the Convention, both states now have an obligation to secure the release and departure of hostages in accordance with Article 3(1) and take offenders into custody so that any criminal or extradition proceedings can be instituted in accordance to Article 6(1).
 
To the extent that inter-State disputes arise concerning the Convention, Article 16 provides that they should first be settled by negotiation, or failing that, arbitration or a subsequent reference to the International Court of Justice.
 
D)    Draft Article on the Responsibility of States for Internationally Wrongful Acts (IWA)
 
Furthermore, the Draft Article on the Responsibility of States for Internationally Wrongful Acts 2001 (IWA), a draft article adopted by the International Law Commission of the United Nations General Assembly to which both North Korea and Malaysia are members, and which has increasingly been referred to as a source of law on the question of state responsibility[22] by a growing number of decisions of international courts, tribunals and other bodies[23]  such as the International Court of Justice, condemns the commitment of ‘wrongful acts’, which includes the taking of hostages. And until the hostages have been released, the states could be deemed to be doing a continuing ‘wrongful act’ as in the International Court of Justice case of the United States Diplomatic and Consular Staff in Tehran[24] in which the United States’ diplomatic and consular staffs were taken as hostages in Iran.
 
What is a ‘wrongful act’? The Draft Article on the Responsibility of States for Internationally Wrongful Acts 2001 has defined ‘wrongful act of a State’ in which two elements have to be satisfied[25] in order to determine if a State has committed an internationally wrongful act. Article 2(a) emphasizes on the action or omission to be attributable to the State while Article 2(b) states that as a result of that act, there is a breach of an international obligation[26].

Looking at the crisis through the lenses of these two elements, there is already a breach by North Korea as they are a party to the ICCPR which prohibits the restraint of movements of any persons, as well as the International Convention Against the Taking of Hostages. The IWA can be used to strengthen further the notion that they have committed an internationally wrongful act as the travel ban is attributable to the State itself, and hostage taking is condoned.
 
As for Malaysia, who is not a party to the ICCPR but only to the Hostages Convention they have constituted a breach as well, but, there may be a defense which can be raised. This will be further elaborated in Part IV of this article.
 
III. Remedies
 
Since it has been established that there were some breaches of international law by both parties; we now look into the question of remedies.
 
While it is clear that there is a breach of ICCPR and the Hostages Treaty by North Korea, it is difficult to ascertain just how far we could go in seeking for remedies against this country. This is a country that has been subjected to multiple heavy sanctions[27], condemnations by UN General Assembly resolutions[28] and even UN Security Council statements[29] in the past without much effect.
 
However, Malaysia, to our credit, does acknowledge our commitments to conventions that we have signed, with the courts sometimes upholding rights under conventions even though it has not been transformed into local legislation, as can be seen from the case of Noorfadilla bt Ahmad Saikin v Chayed bin Basirun[30] and Insas Bhd & Anor v Dato’ Param Cumaraswamy[31].
 
Perhaps, in view of Malaysia’s commitments to international law, for those working in the embassy, the Vienna Convention on Diplomatic Relations could be invoked so as long as they fall within the ambit of Article 1. As long as the person is a diplomatic agent, he or she will be protected under Article 29 which states that “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.”

This Article gives a diplomat an inviolable right against arrest or detention. A diplomatic agent must always be respected by the receiving state as well, and his private residence cannot be entered without permission, as provided in Article 30. Not only will a diplomatic agent be protected, but the members of his or her family will also enjoy the inviolable rights conferred to a diplomatic agent as expressly stated in Article 37. These rights will only end when that diplomatic agent is declared to be persona non grata and therefore relieved of his official duties in the receiving state. These rights do not end even if diplomatic relations are broken off, as Article 45 (a) states that the receiving state must continue to respect the premises of the mission, alongside its property and its archives.
 
Furthermore, the North Korean citizens here may be able to use the Hostages Convention against us, as we have signed and ratified the treaty. Therefore, this may be the only remedy for them, as Malaysia is not a party to the ICCPR.
 
IV. Defences
 
There have been opinions that Malaysia’s act of banning North Koreans from leaving is justifiable under international law. Under the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (IWA) 2001, the defense of Countermeasure may be used. Traditionally known as “reprisal,” the term “countermeasure” has been expanded to cover part of the subject of reprisals not associated with armed conflict[32].
 
The defense of countermeasure can be justified as a necessary and proportionate response to an internationally wrongful act of the State[33]. Article 49 provides for the object and limits of countermeasures in which Article 49(1) explicitly mentions that only an injured state may use this against a state that has done an internationally wrongful act for the purpose of inducing that State to comply with its initial obligations under Part Two—to stop the wrongful conduct done in the first place. An important requirement for taking countermeasures is provided for in Article 51 and discussed in the ‘Naulilaa’ Case[34]—proportionality, in which a countermeasure must be proportional to the act done by the other State.
 
This concept is not foreign, as it is also a requirement under self-defence even for criminal law. Malaysia’s act of retaliation had basically been the same as North Korea’s, and thus, should be considered to be proportional in the eyes of the law. Therefore, it is arguable that Malaysia’s retaliation had been in compliance with international law.
 
V. Conclusion
 
This article was written for the purpose of examining to what extent does international law apply in this current issue involving us and North Korea. We must always remember that albeit the constant debate on whether international law is really “law,” it does not in any sense discredit the validity and importance of international law as a whole. After all, international law is created for reasons, and one of those reasons is to ensure peace and unity among all nations of the world.
 
Personally, while I believe that Malaysia’s quick decision was brave and commendable, and possibly legally justifiable as we have a valid reason to retaliate and may have considered our actions to be a part of countermeasures against them, travel bans are still considered to be an infringement of human rights that causes distress onto individual citizens who are not complicit in the actions of their state. Why do we need to mirror North Korea’s action when we know that it victimizes the innocent and would normally be considered wrong in the eyes of International Law?

---

This article was written by Kimberly Lim Ming Ying, a law student at the University of Malaya (Reviewed by Dr. Sarah Tan Yen Ling) (Edited by Leeroy Ting Kah Sing)

---

[Footnotes]

[1] Paddock, Richard, “Malaysia Forces Out North Korean Ambassador”, The New York Times, 4 March 2017, <https://www.nytimes.com/2017/03/04/world/asia/malaysia-north-korea-kim-jong-nam.html>

[2] Article 9, Vienna Convention of Diplomatic Relations

[3] Article 9(1), Vienna Convention of Diplomatic Relations

[4] Article 9(2), Vienna Convention of Diplomatic Relations

[5] Paddock, Richard, “North Korean Ambassador Leaves Malaysia”, The New York Times, 6 March 2017, <https://www.nytimes.com/2017/03/06/world/asia/vx-north-korea-kim-jong-nam.html?_r=0>

[6] FMT Reporters, “North Korea declares Malaysia’s envoy persona non grata”, FMT News, 6 March 2017, <http://www.freemalaysiatoday.com/category/nation/2017/03/06/north-korea-declares-malaysias-envoy-persona-non-grata/>

[7] “North Korea bans Malaysians from leaving in murder row”, Al Jazeera, 7 March 2017, <http://www.aljazeera.com/news/2017/03/malaysians-banned-leaving-north-korea-state-media-170307033653577.html>

[8] Ng, Eileen, “315 North Koreans barred from leaving Malaysia amid dispute over Kim Jong Nam’s death”, thestar, <https://www.thestar.com/news/world/2017/03/12/315-north-koreans-barred-from-leaving-malaysia-amid-dispute-over-kim-jong-nams-death.html>

[9] Razak, Najib, “Prime Minister Najib Razak Calls on North Korea to Immediately Release all Malaysians”, NajibRazak.com, 7 March 2017, <https://www.najibrazak.com/en/blog/bebaskan-semua-rakyat-malaysia/>

[10] Razak, Najib, “Prime Minister Najib Razak Calls on North Korea to Immediately Release all Malaysians”, NajibRazak.com, 7 March 2017, <https://www.najibrazak.com/en/blog/bebaskan-semua-rakyat-malaysia/>

[11] United Nations, Treaty Series, vol. 213, p. 222

[12] Ibid., vol. 999, p. 171, Article 10, International Covenant on Civil and Political Rights 1966

[13] “North Korea bans Malaysians from leaving in murder row”, Al Jazeera, 7 March 2017, <http://www.aljazeera.com/news/2017/03/malaysians-banned-leaving-north-korea-state-media-170307033653577.html>

[14] Article 1, International Convention Against the Taking of Hostages 1979

[15] https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-5&chapter=18&clang=_en

[16] Refer to footnote 8 above

[17] Latiff, Rozana, http://mobile.reuters.com/article/idUSKBN16G0MB?il=0, Reuters, 9 March 2017, <http://mobile.reuters.com/article/idUSKBN16G0MB?il=0>

[18] Refer to footnote 14 above

[19] Ng, Eileen, “315 North Koreans barred from leaving Malaysia amid dispute over Kim Jong Nam’s death”, thestar, <https://www.thestar.com/news/world/2017/03/12/315-north-koreans-barred-from-leaving-malaysia-amid-dispute-over-kim-jong-nams-death.html>

[20] “Malaysia, North Korea bar each other's citizens from leaving amid worsening row over Kim Jong Nam's murder”, straitstimes, < http://www.straitstimes.com/asia/se-asia/pyongyang-bans-malaysians-from-leaving-north-korea-report>

[21] Refer to footnote 21 above

[22] Oxford Public International Law, Max Planck Encyclopedia of Public International Law, (September 2006), State Responsibility, ‘E Evaluation’ [65]

[23] Refer to footnote 23 above

[24] Case Concerning United States Diplomatic and Consular Staff in Tehran 1980

[25] http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf

[26] Phosphates in Morocco, Italy v France PCIJ Series A/B No 74 (PCIJ 1938)

[27] Smith, Spark, Laura & Roth, Richard, “Toughest UN sanctions yet to cost North Korea $800 million”, CNN, 1 December 2016, <http://edition.cnn.com/2016/11/30/asia/un-north-korea-nuclear-sanctions/>

[28] King, Ariana, “UN General Assembly rebukes North Korean human rights violations”, Nikkei Asian Review, 16 November 2016, <http://asia.nikkei.com/Politics-Economy/International-Relations/UN-General-Assembly-rebukes-North-Korean-human-rights-violations>

[29] “North Korea rejects U.N. condemnation of its missile test”, Reuters, 15 February 2017, <http://www.reuters.com/article/us-northkorea-missiles-ministry-idUSKBN15U0LD>

[30] Noorfadilla bt Ahmad Saikin v Chayed bin Basirun, [2012] 1 CLJ 769

[31] Noorfadilla bt Ahmad Saikin v Chayed bin Basirun, [2012] 1 CLJ 769

[32] http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf

[33] Refer to footnote 16 above

[34] Portuguese Colonies Case, p. 1028