Diplomacy trumps justice in Kim Jong Nam killing

A Vietnamese woman accused of assassinating North Korean leader Kim Jong Un’s estranged half-brother Kim Jong Nam with VX nerve agent in 2017 has been released from a Malaysian jail. Doan Thi Huong, 30, walked free early Friday (May 3) morning after being held in custody for more than two years.

She was taken directly into immigration custody after her release from prison and is expected to remain there before boarding a flight to Hanoi, the Vietnamese capital, later in the day. Huong’s lawyers told local media that she looked forward to returning home and that she plans to pursue singing and acting as a career.

The release of the sole suspect held in connection with Kim’s murder in all likelihood suggests the case will fade from view without a conviction. Analysts believe that Malaysia – and the wider region – have little appetite for raising further questions over the incident amid expectations that previously strained bilateral ties will soon be normalized.

Malaysian prosecutors dropped a murder charge against Huong on April 1 following diplomatic pressure from the Vietnamese government, which had stepped up lobbying efforts for her release after prosecutors withdrew a similar murder charge against a second defendant, Indonesian national Siti Aisyah, who was released on March 11.

Malaysian Attorney General Tommy Thomas had instructed prosecutors to withdraw charges against 27-year-old Siti, who was discharged but not acquitted, after “taking into account the good relations” between Malaysia and Indonesian President Joko Widodo’s administration, according to a letter revealed by the Indonesian Embassy in Kuala Lumpur.

Although the two women had regularly been brought to the dock together, they were being tried separately in the case. Both maintained their innocence and said they were duped by North Korean agents into believing they were participating in a prank for a hidden camera TV show that saw them smearing lotion on the faces of strangers in exchange for cash.

Closed-circuit television camera footage showed the two women accosting the 45-year-old North Korean at Kuala Lumpur’s airport terminal and smearing his face with a substance. Experts believe the women were given separate chemical compounds that, while harmless on their own, became a lethal VX nerve agent when mixed, killing Kim within two hours.

Prosecutors initially denied an appeal by Huong’s lawyers three days after her co-defendant walked free. The murder charge against her was dropped after the 30-year-old pleaded guilty to a lesser charge of “causing injury” to which she was handed a jail term of three years and four months effective from the date of her arrest in February 2017.

That term was later reduced after part of Huong’s sentence was remitted for good behavior. The two women were the only suspects detained in connection with the killing of Kim Jong Nam. Charges were, however, brought against four North Korean men who boarded flights out of Kuala Lumpur on the morning of the killing and remain at large.

Other North Koreans suspected of plotting the attack were permitted to leave Malaysia as part of a prisoner swap to end a tense diplomatic standoff. Pyongyang is unlikely to ever repatriate the individuals believed to have been the main planners and perpetrators of the hit on Kim, who reportedly told friends his life was in danger months before his assassination.

Critics say Malaysia squandered a golden opportunity to hold the masterminds who commandeered the operation to account when it permitted them to return to Pyongyang. To some, however, the release of the two women by Malaysian prosecutors amounts to letting a cloak-and-dagger political assassination go unpunished.

“Any extrajudicial killing should have consequences,” said Sung-Yoon Lee, assistant professor at the Fletcher School of Law and Diplomacy at Tufts University in the United States. “Even if the two suspects did not know what the substance was and believed what they were doing to be a prank, there should be legal consequences as there are in any homicide.

“The best the two suspects could have pleaded guilty for is involuntary manslaughter. Instead, they both walk off free,” said Lee, who added that giving Pyongyang “a free pass even in a case of extrajudicial killing on foreign soil with deadly nerve gas” demonstrates that “the norms and rules of international law don’t apply to North Korea.”

Henri Féron, a research associate at Columbia Law School’s Center for Korean Legal Studies, sees it differently. “To hold these women accountable for the crime would not be justice, but scapegoating. That the assassins were not caught may mean that justice will never be done, but that does not make it right to make innocents take the blame instead,” he said.

If the two women, as unwitting third parties who believed they were taking part in a prank, had “no objective reason to suspect [their actions] would have fatal consequences,” that would suggest that the women lacked the criminal intent necessary to establish murder under Malaysian law, which is based on English common law, noted Féron.

Hoo Chiew Ping, a senior lecturer at Universiti Kebangsaan Malaysia, agrees. “It is unfortunate that the North Korean suspects were able to get away while the women who are obvious scapegoats were being trialed for the crime. Seeing anyone getting punished as the only way to bring ‘closure’ to the case would be an equally unjust outcome,” she said.

Prior to Kim’s killing, North Korea had enjoyed relatively cordial but discreet diplomatic ties with Malaysia. There had been a mutual visa-waiver program in place to boost business and tourist travel between the two nations, though the size of legitimate two-way trade remained small and arguably insignificant.

Malaysia at one point hosted hundreds of North Korean workers who were deported after the airport killing. Speculation is longstanding that Pyongyang leveraged its friendly ties with Malaysia to use the country as a conduit for financial repatriation, espionage and illicit money-making activities, including alleged weapons deals with Myanmar.

As the assassination debacle draws to an unresolved close, analysts foresee diplomatic ties between Putrajaya and Pyongyang quietly reverting to their traditionally cooperative but low-key status-quo.

“It is likely that the two sides now wish to forget about what happened,” said Lee Jae-hyon, a research fellow at the Asan Institute for Policy Studies. “Prime Minister Mahathir Mohamad is trying to get bilateral relations with North Korea back on track, although it does not [necessarily] mean that Malaysia wants a cordial and cooperative relationship.

“Simply, Malaysia wants to get the diplomatic relations back to pre-Kim Jong Nam assassination [status quo],” said the academic. “Of course, North Korea will be happy to recover those bilateral relations as long as the Malaysian government does not question who are the people behind the assassination.”

“We can soon expect the full resumption of diplomatic ties between Malaysia and North Korea with the potential reopening of the Malaysian Embassy in Pyongyang,” believes Hoo, who said there was “strong political will” on the part of Mahathir’s government to uphold “Malaysia’s traditional diplomatic practice when it comes to the two Koreas.”

That stance, says Hoo, is consistent with the consensus position of the Association of Southeast Asian Nations (ASEAN) grouping that Pyongyang should not be isolated. ASEAN “would take the official position of condemning provocations if they occur, but will strongly support any initiatives involving engaging North Korea,” she said.

According to Hoo, engaging North Korea presents a dilemma for nations because their attempts to integrate Pyongyang more closely into the international community risk “the moral hazard of being complicit in their illicit activities or ignoring their human rights record.” The academic, however, still favors engagement over isolation.

“[Engagement] should be done with responsibility and in accordance with international law. This includes the idea of welcoming them to be part of regional multilateralism while ensuring that state-sponsored terrorism and other transnational crimes like trafficking and smuggling shall not be accepted as normal statecraft.”