By Lami Kim
Last Friday, the Malaysian High Court set an October 2 trial date for two women accused of murdering Kim Jong-nam, an estranged half-brother of the North Korean ruler, Kim Jong-un, at Kuala Lumpur international airport on February 13 of this year. Arrested on March 1, Indonesian national Siti Aisyah and Vietnamese national Doan Thi Huong are accused of smearing Kim Jong-nam’s face with the highly toxic VX nerve agent. The suspects are expected to plead not guilty, as they claim to have been duped into believing that they were playing a harmless prank for a reality TV show. If convicted, they could face the death penalty.
The women are not the only suspects, however. Four North Koreans are believed to have provided the two women with the VX agent before returning to North Korea on the day of the murder. Interpol has issued a “red notice,” essentially an international arrest warrant, for the North Koreans upon Malaysia’s request. Yet another suspect, Ri Jong Chol, a chemist that may have ties with North Korea’s State Science and Technology Committee according to 월간조선 or Monthly Chosun, was released and deported by the Malaysian police due to lack of sufficient evidence. It is widely speculated that Kim Jong-un ordered the assassination of Kim Jong-nam, Kim Jong-il’s eldest son, because he was favored by the Chinese government as an alternative to Kim Jong-un’s rule as the North Korean supreme leader.
The purported assassination caused a diplomatic standoff between the two countries that have maintained close relations since establishing diplomatic relations in 1973, including a reciprocal visa-free travel arrangement. Malaysia claimed that the North Korean regime was behind the murder of Kim Jong-nam, which spurred the North Korean ambassador, Kang Chol, to question the validity of Malaysia’s investigation. After Kang refused to apologize for his remarks, the Malaysian government expelled Kang and cancelled its visa-free entry policy for North Korean visitors. In turn, North Korea responded by banning all Malaysian citizens, as well as three diplomats and their six family members, from leaving North Korea in violation of the Vienna Convention on Diplomatic Relations (VCDR). The tension between the two countries escalated further as Malaysia reciprocated by banning North Korean nationals from leaving Malaysia. The strain in relations between the two countries eased in late March after Malaysia returned Kim’s body to North Korea and North Korea allowed all Malaysians to return home.
The diplomatic crisis has subsided and the trial date for the two female suspects has been set. However, the grave issue of the use of toxic chemical agents has not sufficiently been addressed. One important question is how the VX agent arrived in Malaysia. Malaysia is a member of the Chemical Weapons Convention (CWC), which bans the production, stockpiling and use of chemical weapons and their precursors. In the CWC, VX falls under Schedule 1 substances, which have few uses other than as weapons. Against this backdrop, it seems likely that the chemical substance was smuggled into the country, which, if true, is highly alarming. Malaysia’s lax WMD-related export control regulations received considerable attention when it was revealed in the early 2000s that Malaysian was involved in the A. Q. Khan network of illicit nuclear smuggling: Malaysian companies had provided the network with centrifuge components, and Khan’s close aid, B.S.A. Tahir, was operating out of Malaysia. Since then, Malaysia has made efforts to curb the export and transfer of WMD-related materials, which is illustrated by its establishment of the 2010 Strategic Trade Act, a wide-ranging export control legislation. If the VX agent was smuggled into the country despite such enhanced efforts, it would suggest that the country’s export controls remain ineffective.
One possibility is that the VX agent was smuggled through North Korea’s diplomatic pouches, which are not subject to regular inspections. Under Article 27.3 of the VCDR, diplomatic pouches “shall not be opened or detained,” which is interpreted to mean that modern-day electronic inspections are not allowed. North Korea has previously used diplomatic pouches for smuggling, according to Rohan Gunaratna, the head of the Singapore-based International Centre for Political Violence and Terrorism Research. If there is reason to believe that the VX agent was smuggled this way, then the Security Council should consider adding the inspection of diplomatic pouches to its sanction program against North Korea.
One cannot rule out the possibility that the chemical agent was assembled in Malaysia. However, it is highly unlikely, given that the CWC has a robust verification mechanism. In the March 7 report to the Organization for the Prohibition of Chemical Weapons, which monitors compliance with the CWC, the Malaysian government argued that it did not “produce, stockpile, import, export or use” VX or any other such chemical weapon.” Malaysia maintains that its compliance has been confirmed by regular inspections by the Organization. If the VX agent used in the murder of Kim was assembled within the country, however, this would also ring alarm bells.
In addition, regardless of the outcome of the current trial, it remains to be discovered who ordered the use of VX. The North Korean government has of course denied its involvement in the killing, even going so far as to deny that the deceased was Kim Jong-nam. Pak Myong Ho, a North Korean diplomat, claimed in an interview that the murder was “clearly a political scheme by the U.S. and South Korea aimed at hurting the DPRK’s reputation and overthrowing the DPRK regime.”
If North Korea is determined to be complicit, the international community should hold it accountable. Nevertheless, as North Korea is not a party to the CWC and the chemical agent was not used in an armed conflict (the 1925 Geneva Gas Protocol, which North Korea has joined, bans the use of chemical weapons only in armed conflicts), the international community is left with few tools in its toolbox. Security Council Resolution 2118, holds that the “use of chemical weapons anywhere constitutes a threat to international peace and security.” Assuming North Korea’s culpability, the Security Council should take action under Chapter VII of the U.N. Charter, at least symbolically, or otherwise risk the VX incident setting a dangerous precedent.
Even though the VX incident in Kuala Lumpur did not result in a mass killing, the use of a toxic chemical agent in a public space could have generated great threats to the public. Furthermore, the use of a weapon of mass destruction, regardless of the magnitude of its effect, is by itself a matter of grave concern. The international community has created various important norms and rules to prevent the use and spread of WMD. For now, the responsibility rests with Malaysia and its ongoing investigation. Depending on the results, the international community may also need to respond.
Lami Kim is a research fellow at the Nuclear Safeguards program at the nonpartisan Stimson Center.