The Commission of Inquiry: The Arria Meeting

In an earlier post, we covered the complexities of the UN Security Council role in following up on the Commission of Inquiry report. The vetoes of China and Russia foreclose referral to the International Criminal Court or additional sanctions, as the report argues its findings warrant. Chinese and Russian views also constitute a hurdle to placing North Korean human rights formally on the UNSC agenda, but do not preclude it. What next?

Last week, a so-called Arria process meeting of the UN Security Council members took place to discuss the report, giving it renewed visibility and raising the issues afresh. (The The New York Times coverage is here.  Huffington Post here.)  The Arria formula is an informal mechanism initiated in 1992 by the Venezuelan representative to the UNSC that permits informal discussions. These meetings—which are held in confidence–enable Security Council members to have “frank and private” exchanges of views within a flexible framework that does not formally commit the Council; indeed, the New York Times coverage was subtly misleading since these meetings are not really of the Security Council per se. Convenors—the US, Australia and France in this case—can call whomever they wish to present information, and in addition to the members of the Commission of Inquiry the US invited a number of NGOs to observe. But dissenting parties can also stay away. Both China and Russia did, although Russia met with the CoI members privately in advance of the meeting.

The meeting heard from chairman of the CoI, Australian jurist Michael Kirby, as well as the two other commissioners, Marzuki Darusman, the Special Rapporteur on North Korea, and Ms. Sonja Biserko, a prominent and fearless Serbian human rights advocate. Darusman issued a particularly pointed statement on a recent trip to Tokyo, and has not minced words on the fact that China is complicit in North Korean behavior. In addition, the 13 representatives in attendance heard testimony from two North Korean escapees, Shin Dong-hyuk and Lee Hyeon-seo. Shin’s story was told to Blaine Harden in the 2012 Escape From Camp 14 and inspired several tweets from Ambassador Power, reproduced below. A video of Kirby's press conference following the meeting can be found here.

The question is “now what?” The advanced industrial states seem united on referring the issue to the International Criminal Court: current UNSC members include Luxembourg, the UK, the US, Australia, France and South Korea and they are likely joined by Chile, Lithuania, and Jordan in support of sterner action. The positions of developing countries on the UNSC, including Rwanda, Argentina, Chad and Nigeria are less certain and this fact is important because votes matter. The US, Europe and South Korea could push for a non-consensus resolution to put DPRK human rights on the UNSC agenda, but it takes nine votes. China and Russia would still almost certainly veto ICC referral or human rights related sanctions, but it would force unprecedented Security Council consideration of the issue.

Here are some of the possibilities raised in the meeting

• Kirby noted that North Korea is already on the UNSC agenda, and the discussion should simply be broadened to include human rights as a component of the security mandate. This strikes us as unlikely.
• The UN General Assembly could set up an investigative and prosecutorial body if it chose, effectively sidestepping the UNSC. The opportunity for UNGA action comes in the fall and it could call for the UNSC to take up the issue.
• The CoI report suggests a field operation to follow up on allegations, and the details of such an effort are still to be worked out.
• Some uncertainty remains on how UN agencies might bring human rights into their dealings with North Korea; this is an important area for further thought and Secretariat action.
• France’s UN ambassador Gerard Araud noted that his country does not have diplomatic relations with North Korea and has no intention of establishing them. In the end, the policies of individual states are as significant as what the UN as a whole can do. Russia and China clearly wish the whole issue would simply go away. Any collective action will need to be through venues such as the General Assembly in which China and Russia cannot directly veto proposals, through the Secretariat and specialized agencies or outside the UN altogether.

Ambassador Samantha Power tweets from Arria process meeting

Shin Dong-hyuk and Lee Hyeon-seo, victims of the #DPRK hell, shared their haunting stories with #UNSC members today. pic.twitter.com/dQsTMeE3Qy

Shin Dong-hyuk, a North Korean escapee, at today's @UN meeting: “Starving is unimaginable pain, so I chose the beating.”

Shin Dong-hyuk, a #DPRK escapee, at UN meeting today: “As I watched my mother executed, I could not feel any emotion. I was 14 at the time.”

Witness to Transformation Posts on the CoI

• Commission of Inquiry Report: the Mandate (March 25, 2013)
• Commission of Inquiry Report: Initial Reaction (February 17, 2014; includes full links to Commission materials)
• Commission of Inquiry Report: What Next? (February 24, 2014).
• Roberta Cohen, Karin Lee and Christine Hong on Human Rights (January 29, 2014)
• Commission of Inquiry Roundup I: The UN Role (March 3, 2014)
• Commission of Inquiry Roundup II: the UN Role (March 6, 2014)
• The Human Rights Council Vote (March 31, 2014)
• All Witness to Transformation human rights posts