The Complicated Fate of US Prisoners in North Korea

North Korea’s announcement earlier this month that it would sever its only diplomatic channel with the United States kicked off predictable discussions in policy circles about the impact on the perpetually fraught relations between the countries. For Otto Warmbier and Kim Dong-chul, two Americans waiting to be freed from prolonged detention in the country, it’s far from an abstract question.

While announcing on July 11 that it would cut all contact with the United States via its UN mission in New York, Pyongyang signaled that the pair of detained Americans would face a tougher path to freedom than before.

The move, taken in response to recent sanctions targeting leader Kim Jong-un for human rights violations, meant that all issues between the countries, including the fate of detained Americans, would be dealt with under “wartime laws,” North Korean state media said.

In June, Pyongyang sounded a similarly dire warning, threatening not to release the pair at all unless former prisoner Kenneth Bae stopped publicly discussing his two years in captivity. He’d been detained for evangelizing.

Kim is serving a sentence of 10 years of hard labor for allegedly spying on the regime, while Warmbier is serving a 15-year sentence for trying to steal a propaganda poster from his hotel.

While it’s impossible to know when the two might be released and under what conditions, analysts see the closure of the diplomatic channel as a blow to efforts to bring them home. Having no formal diplomatic relations, Washington and Pyongyang have in the past initiated discussions about detainees through unofficial contacts at the New York mission.

“North Korean public statements suggest little probability of release for Americans detained there in the near future,” Scott Snyder, a Korean studies expert at the Council on Foreign Relations, told The Diplomat. “I do not know what the handling of the issue under ‘wartime law’ might imply. It does not absolutely foreclose state-to-state negotiations but it does imply that North Korea may present its own demands as quid pro quos if a negotiation occurs.”

Snyder said Pyongyang could be signaling that it expects more in exchange for the release of the Americans, echoing Stephan Haggard, an analyst at the Peterson Institute for International Economics, who recently wrote that the “bribe price” had probably risen.

“I can imagine some possible demands; usually, release of American detainees requires a demand signal by the DPRK prior to negotiations in any event,” Snyder said, using North Korea’s official name, the Democratic People’s Republic of Korea.

“Perhaps something was happening under the surface but DPRK latest statements suggest likelihood of a long wait.”

In the past, American detainees have been released after visits to North Korea by high-profile dignitaries including former U.S. Presidents Jimmy Carter and Bill Clinton. The most recent of these missions, to bring home Bae and fellow American Matthew Miller in 2014, uncharacteristically involved a sitting member of government, Director of National Intelligence James Clapper.

It’s unclear what efforts involving elder statesmen or other prominent figures could be happening behind the scenes, apart from the public intervention of NBA agent David Sugarman, but Warmbier and Kim have already been in detention longer than most of the Americans who’ve found themselves in similar straits.

According to an interview he gave to CNN while flanked by North Korean officials, Kim was arrested on the North Korea-China border last October, which would make him the longest-held American in recent memory apart from Bae. At the time of publication, Warmbier, at more than 200 days in detention, was just days away from becoming the next longest in captivity after Kim.

“If they have Americans that they have in their possession, they will seek to use that as a political advantage to press the United States to positions it might not otherwise take,” said Robert Gallucci, a former State Department official who negotiated the ill-fated “Agreed Framework” denuclearization deal in the early 1990s. “So I don’t see this as a new situation. They may have a harder line than before -- I don’t think I can calibrate it very exactly.”

Precedent suggests that Washington would be unlikely to make substantive concessions on policy in exchange for its citizens.

“They’ve gone not to start negotiations or discussions even,” Gallucci said of previous humanitarian visits to bring back Americans. “They’ve gone because that was the price of getting an individual returned. It’s a humanitarian thing, and that’s the way the United States has treated it.”

Gallucci added that North Korea, regardless of its ominous warnings, had an incentive to not treat Warmbier and Kim more harshly than other Western detainees, who have been spared the kind of abuses allegedly doled out to North Koreans in detention.

“It doesn’t want to be seen as torturing individuals,” he said. “It cares about, interestingly... the perception of North Korea as a violator of human rights and it doesn’t want this documented. So I think that bounds them a bit -- and I’m glad it does; it should bound any government -- in terms of what they do.”