Kim Jong-nam

British barrister calls for proper probe into death of Kim Jong-nam given human trafficking fears

Felicity Gerry QC, who has been involved in court cases in Hong Kong, urges countries to put in place robust frameworks against human trafficking

PUBLISHED : Saturday, 18 March, 2017, 4:52pm
UPDATED : Saturday, 18 March, 2017, 10:46pm

British criminal law barrister Felicity Gerry QC has called for a proper investigation into the death of the half-brother of North Korean leader Kim Jong-un in Malaysia amid fears that the two alleged attackers might be victims of human trafficking.

In light of this possibility, the lawyer, who has been involved in court cases in Hong Kong, urged countries to put in place robust frameworks against human trafficking.

Kim Jong-nam died after two women swiped his face with VX nerve agent – classified as a weapon of mass destruction – at Kuala Lumpur’s airport on February 13. The two, who were identified on CCTV cameras, were charged with murder on March 1. They might face the death penalty.

News has emerged suggesting the women – Siti Aisyah, 25, from Jakarta, and Doan Thi Huong, 28, from rural northern Vietnam – thought they were part of a prank for a TV show, were paid a limited fee and may have been duped and exploited.

According to an Indonesian official, Siti said she had been paid about US$90, Associated Pressreported.

A North Korean man was held as a suspect, but ended up being deported for lack of evidence. Siti’s boyfriend was also detained, but later released on bail.

Gerry, who has chambers in England and Australia, said there could not have been a proper investigation into the possibility the two women were human-trafficking victims, given they were charged some two weeks after the assassination.

“The concern in this case is that the politics will override the necessary protection or the necessary investigation,” Gerry, who gave a talk at the University of Hong Kong this week, told the South China Morning Post.

“A good investigation may come up with evidence showing they are not human-trafficking victims. You want the evidence either way,” the barrister said. But “if it’s not investigated properly, my concern is that they won’t have a fair trial.”

According to the United Nations protocol, human trafficking includes the recruitment of persons by means of deception or from a position of vulnerability. Trafficked victims who commit crimes should not be prosecuted or, if they are, should not be punished, the UN guidelines state.

Photos have shown the two women leaving the court wearing bulletproof vests, which may indicate that the Malaysian authorities are concerned that others involved in the assassination might try to silence them.

Gerry said that countries needed to have ”harmonised formal structures” that provided legal protection for human-trafficking victims, as mere commitments to a UN protocol have been insufficient.

“There are no laws that say we will protect you if you are a victim, we will not prosecute you or punish you if you are a victim,” she said. “What we might have is a discretion for prosecution authorities not to prosecute ... At the moment, this is down to an individual prosecutor,” Gerry said.

“The problem is that in cases as high-profile as the Kim Jong-nam assassination, no individual prosecutor is going to say ‘I am not going to prosecute’ because they would be accused of corruption. Even if they were not corrupt, even if they were doing the right thing,” the barrister said.

Under more robust frameworks, there would be a duty to investigate, protected confessions – those who confessed and told the truth would not be prosecuted – judicial powers to intervene and specific legal defences, she explained.

Gerry said in countries and regions that already had legal frameworks, it was necessary to implement what already existed and add to it, while in other places like Hong Kong, where there are no anti-trafficking laws, there was a need to start from scratch.

“Each country has to look at it. I would say not just from the perspective of combating human trafficking but also around those issues of gender equality and lifting people out of disadvantage. Those sorts of social issues,” she said.

That would give “[prosecutors] the power to make the right decisions, rather than being forced by politics to make the wrong one.”

Gerry, who is currently a senior lecturer at Charles Darwin University in Australia, has been involved in other similar cases. She helped lawyers of Mary Jane Veloso, a woman from the Philippines who was reprieved from execution in Indonesia as the possibility of her being a victim of human trafficking in the drug trade was being investigated.

Malaysia’s 2007 Anti-Trafficking in Persons Act prohibits all forms of human trafficking. The government there has made some efforts to protect victims, according to the 2016 US Trafficking in Persons report.

Although they have already been charged, the two women in the Kim Jong-nam case could still be saved. “If the case is investigated properly and their account turns out to be credible, then it’s possible for them to be successfully defended, because it would be possible to demonstrate it was not a deliberate killing,” Gerry said.

Kim’s death has been described by South Korea and the US as a political assassination. It has also caused diplomatic animosity between Malaysia and North Korea, which has repeatedly expressed doubts about the investigation’s credibility and even denied that the half-brother of the country’s ruler was the murdered man. .

Malaysian authorities have not directly accused Pyongyang of ordering the attack, but they said in February that four North Korean nationals provided the women with the poison.

Police there are looking for seven North Korean suspects. On Thursday, Malaysia obtained an Interpol red notice for the arrest of four men, who are believed to have returned to Pyongyang.

Gerry noted that transnational cooperation between the Malaysian, North Korean, Vietnamese and Indonesian authorities was absolutely necessary in this case. “If they don’t cooperate, the question we have to ask is: could [the two women] ever be fairly tried?”