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How A Mock Trial Could Turn Victory into Defeat on North Korea's Nuclear Arms

August 1, 2008
Volume 6 | Issue 8
Article ID 2853
How A Mock Trial Could Turn Victory into Defeat on North Korea’s Nuclear Arms

Leon V. Sigal

In tough bargaining, the United States has stopped North Korea from producing more plutonium for nuclear weapons. It has induced the North to disable its nuclear facilities at Yongbyon, making them more difficult and time-consuming to restart. Washington has also persuaded Pyongyang to declare how much nuclear material it has and the equipment and components it has acquired to make more – a necessary step to negotiating their elimination in the next phase of the ongoing six-party talks.
Instead of applauding these real gains for US security, however, opponents would slow the disablement and declaration of North Korea’s nuclear programs in the hopes of extracting a full accounting of the North’s nuclear assistance to Syria. In essence, these critics want to put the North Koreans on trial, insisting they tell the truth, the whole truth and nothing but the truth, so help them God. Yet they surely know that all states lie – some more than others.

Washington is right to ask North Korea what nuclear help it gave Syria because of the corrosive mistrust such actions cause. But getting an answer is hardly an urgent security concern. It can wait because whatever help North Korea may have given to Syria’s nascent reactor project went up in smoke in Israel’s September 2007 air strike.

The Syria Connection

In the spring of 2007 Israel passed intelligence to Washington about help given by Pyongyang to construct a nuclear reactor in Syria, including visual evidence gathered on the ground of a North Korean presence. It informed US officials of its intention to attack the site in order to "reestablish the credibility of our deterrent power," as an Israeli official later put it. The Israelis also asked that no word of the attack be disclosed. In a surprise to Washington, which was trying to isolate Damascus, Israel disclosed that it was holding secret negotiations with Syria in hopes of wooing it away from Iran and thought that secrecy would allow the talks to continue. The Israelis also asked President George W. Bush to reverse course and signal he was prepared to relax US isolation of Syria.

After an Israeli air strike demolished the Syrian reactor on September 6, there was silence on all sides for nearly two weeks until opposition party leader Benjamin Netanyahu disclosed the attack. Syria and North Korea then condemned the strike but the US and Israeli governments kept mum. Israeli Prime Minister Ehud Olmert soon publicly affirmed his intention to keep negotiating with Syria. The Bush administration then disclosed it would invite the Syrians to be part of an Arab League delegation to attend a Middle East conference to be held later that fall in Annapolis.

Site of suspected Syrian reactor before and after bombing

Further details were not made public until April 2008, when US intelligence officials briefed Congress and the press. They disclosed that Syrian-North Korean nuclear “contacts” had begun in 1997 – at a time when Pyongyang was complaining, with some justification, about the Clinton Administration’s failure to fulfill its obligations under the 1994 Agreed Framework, the first US attempt to negotiate an end to the North’s nuclear weapons program. Ground-clearing for the Syrian reactor began in 2001, North Korea was detected buying equipment for it in 2002, and reactor construction began in 2003 – after the Bush Administration confronted North Korea over its acquisition from Pakistan of centrifuges and other equipment for enriching uranium. When Washington convinced Seoul and Tokyo to suspend shipments of heavy fuel oil, effectively shredding the remnants of the Agreed Framework, Pyongyang retaliated not only by providing nuclear know-how to Syria but also by reigniting its plutonium program, frozen by the 1994 deal, and by resuming tests of ballistic missiles. This also led to the eventual October 2006 nuclear test by North Korea.

Bush Authorizes Bilateral Talks

Knowing about the Syria-North Korea nuclear link, President Bush nevertheless continued bilateral talks, authorizing Assistant Secretary of State Christopher Hill to meet his North Korean counterpart Kim Gye Gwan on September 1-2, 2007 in Geneva. They reached agreement on the basics of what would become the October 3, 2007 document on "Second-Phase Actions," among them, disabling the reactor, reprocessing facility and fuel fabrication plant at Yongbyon and listing the nuclear material and equipment that were to be eliminated in phase three. North Korea also pledged “not to transfer nuclear materials, technology or know-how" to third parties – the first time it had done so. The United States, in return, promised to fulfill its commitment to terminate the Trading with the Enemy Act and de-list the North as a state-sponsor of terrorism "in parallel with the DPRK's actions."

Later in September the White House gave formal notice to Congress of preparations to ship 50,000 tons of heavy fuel oil (HFO) to North Korea and issued a presidential determination allowing an exception to sanctions for the funding of educational and cultural exchanges. In an arrangement first broached to the North by South Korea's six-party talks representative Chun Young-woo, energy and other assistance "up to the equivalent of one million tons” of heavy fuel oil (minus the 100,000 tons already delivered) would be phased in as the North complied. Seoul, Beijing and Washington each pledged to ship Pyongyang 50,000 tons of heavy fuel oil.

Bilateral US-North Korea talks continued to bear fruit. The North provided evidence that 3,000-odd aluminum tubes it had acquired in the past were well-suited for making centrifuges to enrich uranium, but that, as Hill put it on January 31, 2008, “we’ve seen that the tubes are not being used for the centrifuge program” – most likely because the North was not able to acquire similar quantities of other vital components. That limited its highly touted enrichment program to the 18 centrifuges it obtained from Pakistan, plus components to make some more – too few for its enrichment program to pose the imminent security threat US intelligence once estimated it did.

Delays in Declaring and Disabling

When fully disabled, the plutonium program would take a year or more to restart. By early 2008, eight of the eleven disabling measures, including those at the North Korean reprocessing facility and fuel fabrication plant, were completed without much difficulty. That was not the case for the two most critical steps: removal of all the fuel rods from the Yongbyon reactor and disposal of the replacement fuel rods.

Pyongyang agreed to close the reactor and remove fuel rods

De-fueling was initially delayed to prepare the cooling pond where the spent fuel rods would be stored. Then North Korea, accusing the other parties of not living up to their obligations, delayed it even further. Russia, which was supposed to provide North Korea with 50,000 tons of fuel oil by December, did not deliver the full shipment until late January. China and South Korea, who were each supposed to supply the equivalent of 50,000 tons of fuel in the form of steel and other material to refurbish conventional power plants in North Korea, were also late with their deliveries. And the United States did not "advance the process" of ending the Trading with the Enemy Act sanctions or delisting the North as a state sponsor of terrorism.

In response, at a point where fewer than 20 percent of the 8,000 fuel rods had been removed, Pyongyang slowed the de-fueling to 32 rods per day, down from 80. At that rate, the de-fueling would not have been completed until late in 2008. Disposal of the replacement fuel rods made no headway at all, leaving the North in a position to stop unloading the reactor, reload it with replacement fuel rods, and restart it to generate more plutonium – nuclear leverage that the disabling would deny it.
Declaration of North Korean nuclear activities, which was scheduled to be completed by December 31, 2007, also ran into trouble. Pyongyang did provide an estimate of the plutonium it had, but there were serious doubts about its accuracy. And it balked at further disclosures. On December 5, Hill had raised the Syria issue with Kim Gye Gwan in Pyongyang, later even sharing visual evidence of North Korea’s complicity in the construction of Syria’s nuclear reactor. In a meeting with Foreign Minister Pak Ui-chun, Hill handed over a letter from President Bush to Kim Jong-il urging disclosure of the North’s proliferation efforts. Whether that new demand contributed to the slowdown in disabling was unclear, but it almost certainly prompted a delay in its declaration of all its nuclear programs and activities by the promised date.

At a meeting with Hill on February 19 of this year in Beijing, Kim Gye Gwan turned down a proposal to make a formal declaration of the plutonium program in six-party talks, separate from a side-letter listing equipment and components it had acquired for uranium enrichment, to be delivered to the United States. Later that month, former US Defense Secretary William Perry, who accompanied the New York Philharmonic to Pyongyang for its historic concert, carried a message from Secretary of State Condoleezza Rice offering to keep the side-letter confidential. Rice, in visits to Tokyo and Beijing, had a message of her own on the declaration: “I really have less concern about what form it takes or how many pieces of paper there may have to be or how many times it may have to go back and forth. I am just concerned that by the time we get to the end of this phase, we have some clarity so we know what we’re looking for at the third phase.”

But the North Koreans, burned by Kim Jong-il’s 2002 confession of the 1980s kidnappings of Japanese nationals, which they felt had only raised new hurdles to normalization with Tokyo, were still wary of disclosing the list of enrichment equipment or nuclear proliferation activities. They feared that if it became public it would be held up as the latest example of their perfidy. They refused to itemize the Pakistan-supplied centrifuges and components to make more of them that it had acquired starting in the late 1990’s – equipment it would be obliged to abandon in the next phase of the six-party talks. Hill opted instead to draw up his own list of what US intelligence believed the North had acquired. On March 1 he gave it to the Chinese to pass to the North Koreans, but at a meeting with Hill in Geneva on March 13-14, Kim Gye Gwan refused to check off the items on the US list. Kim also denied North Korean involvement in Syria’s nuclear efforts.

The North was more forthcoming about its plutonium program. It refused to say where it was assembling its nuclear devices, but it did disclose the amount of plutonium it had produced in each of its reprocessing campaigns. It said it had made about 37 kilograms in all, including a yet unspecified amount it had expended in its nuclear test. The total was at the lower end of US estimates – “enough plutonium for at least a half dozen nuclear weapons,” according to the annual threat assessment given to Congress in 2007 – but well within the range of possibility. The North agreed to provide the operating logs of the reactor and reprocessing plant, which, if complete, could help verify the amount of plutonium, but it wanted to delay verification until the next phase of the six-party talks. In May it finally relented and turned over some 18,000 pages of records to Washington. It also promised to blow up the reactor’s cooling tower, a symbolic climax to the disabling process.

In Singapore on April 7-8, the US and North Korea agreed to a compromise on uranium enrichment and Syria. In return for Washington lifting sanctions under the Trading with the Enemy Act and removing Pyongyang from its state sponsor of terrorism list, the North would “acknowledge the US conclusions” – the list of enrichment equipment and components and the information Hill had shown Kim about Syria – “and take serious note of US concerns.” That would allow the declaring and disabling of the plutonium program to be completed. That also left the United States a list of enrichment equipment to be dismantled, albeit one that the North might reopen in the next phase of negotiations. And the agreement would keep the Syria issue on the bilateral agenda, even without a final resolution.
That outcome was a big win for US near-term security objectives. It was preferable to waiting for a possibly incomplete North Korean list that would then have to be verified, which might have only further delayed disabling and left Pyongyang with its nuclear leverage intact. Yet the arrangement outraged those in Washington who viewed the declaration as a way to extract a North Korean confession of its past misdeeds and saw this deal as another instance of cheat-and-retreat tactics by Pyongyang. It even prompted anxious questioning among erstwhile supporters of deal-making and was attacked by right-wingers in the Republican Party who have opposed negotiations with North Korea since 1994, including the party’s presumptive presidential nominee, John McCain.

It also sparked anger in Japan, where dropping the North from the list of state sponsors of terrorism, absent further progress on the domestically potent abductions issue, had become a right-wing cause. Prime Minister Fukuda decided to resume talks with the North on June 11-12. During the talks, Japan offered a partial relaxation of sanctions, and the North reciprocated by promising to reopen its investigation of the abductions and offered to hand over four Red Army Faction members who had fled to North Korea after hijacking a JAL passenger jet in 1970. But reaction from the right wing of the LDP prompted the government to back off from easing sanctions.

The vehemence of the reaction in Washington was a sign of how far many were from accepting the principle of reciprocity underlying six-party talks – “commitment for commitment” and “action for action.” More fundamentally, many had yet to absorb the lesson that it was inconceivable for North Korea to denuclearize permanently until the United States took convincing steps toward reconciliation. That could take years.

The long series of steps that are needed to achieve denuclearization is daunting. It includes the storage and eventual shipping out of spent fuel now being removed from the reactor, the dismantlement and decontamination of the nuclear facilities, verification of denuclearization and the disassembly of nuclear weapons and removal of all fissile material from the country. All of these measures, once negotiated, will require an unprecedented degree of cooperation by North Korea, and reciprocal steps by the other five parties – above all, the United States.

If President Bush yields to his right-wing critics, he could jeopardize his most positive foreign policy legacy – continued accommodation with China – which is the key to peace and security for all of Northeast Asia. China was a factor in Bush’s turnabout on North Korea – not because of its supposed influence over Pyongyang, but because of the president’s desire to sustain engagement with Beijing. North Korea’s missile tests in July 2006 demonstrated its unwillingness to yield to pressure – from the United States or China. Yet Chinese support for a Security Council resolution warning of sanctions only intensified pressure from right-wing Republicans, bent on forcing China to bring North Korea to its knees. With Democrats challenging the president’s China policy on trade and human rights, his cooperative course with Beijing was I trouble. With a North Korean nuclear test impending, former Secretary of State Henry Kissinger went to Beijing for talks with Chinese President Hu Jintao. They met, by unhappy coincidence, on October 10, one day after the test. Kissinger brought a message for Pyongyang underscoring Bush’s willingness to sign a peace treaty once North Korea was nuclear-free and to have a regional security dialogue that included North Korea at the top table.

Diplomatic give-and-take with North Korea is yielding payoffs for American and regional security. Turning the talks into a mock trial would only be a waste of time.

Leon V. Sigal directs the Northeast Cooperative Security Project at the Social Science Research Council in New York. He is the author of Disarming Strangers: Nuclear Diplomacy with North Korea.

This is an expanded and updated version of an article that appeared in the summer 2008 issue of Global Asia. It was posted at Japan Focus on August 11, 2008.