Commission of Inquiry Roundup: the UN Role (Part I)



We are again leading the week with items related to the Commission of Inquiry (CoI) report. In this two-part post, we look at the complex issues of what the UN might do with the CoI report. We begin with the Security Council and General Assembly, and talk Thursday about the Human Rights Council, the High Commissioner on Human Rights, and the broader operational issues facing the specialized agencies, including the World Food Program. We are particularly indebted to lengthy discussions with Roberta Cohen and Jared Genser. Previous posts on the CoI are linked below.

There are two routes through which North Korean human rights could get onto the UN Security Council agenda. First, the P5—effectively the US, France and Britain in this case—can put an issue on the UNSC agenda with support from nine of the 15 members (the ten non-permanent members currently are Argentina, Australia, Chad, Chile, Jordan, Lithuania, Luxembourg, Nigeria, Republic of Korea and Rwanda). This action cannot be vetoed. Second, Article 99 of the Charter states that the Secretary General “may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.”  This power has been justified under the idea of early warning and preventive functions of the UN.

Jared Genser outlined for us the interesting Burma precedent. Vaclav Havel and Desmond Tutu commissioned Genser and his firm to produce a report--Threat to the Peace—that made the legal and political arguments for UNSC consideration of the case. The report appeared in September 2005, was picked up by the Burmese opposition and advocacy movement, and the Bush Administration ultimately succeeded in securing a vote on the agenda item in the fall of 2006. China and Russia subsequently vetoed a resolution put forward in September 2007, but having the issue on the agenda permitted briefings by the Secretary-General’s Special  Advisor on the country and in the end China stood aside and permitted a Presidential Statement in October 2007. Thein Sein was independently moving the leadership in a new direction, but the external and internal political forces aligned. An useful chronology of the case is available at the Security Council Report.

However, neither of these routes onto the UNSC agenda are obvious. A quick scan of cases at the UNSC's website on relations with other UN organs suggests that the SC has not exercised the Article 99 option frequently, and has typically done so in the context of inter-state conflicts. And even if he did take this action, the item is not immediately placed on the agenda; it would only initiate a debate on whether it should be on the agenda.

There is also some question of whether the US, France and Britain will want to push the issue. The UNSC agenda is typically decided by consensus; rarely do P5 members push a contested agenda. The reasons have to do both with the formal structure of decision-making—the shadow of the veto threat—and the complex tradeoffs required to get P5 cooperation, such as it is. Given the high political issues currently in play, from Syria and Iran to the Ukraine, it is uncertain at best that the US, France and Britain will push on this issue. Secretary Kerry made long mention of North Korean abuses at the release of the State Department’s human rights report, but did not tip his hand on action the US might take on the CoI.

If North Korea did manage to get on the UNSC agenda through either route, what then? In addition to the sorts of actions taken in the Burma case—briefings, a Presidential Statement, the attendant publicity--such a referral could address the CoI recommendations for UNSC action. These include targeted sanctions against those most culpable—which would require identifying who they were—or discussion of a referral to the International Criminal Court. The ICC is otherwise limited in its ability to take up the CoI findings by the fact that the DPRK is not a signatory to the Rome Statute. China is likely to oppose targeted sanctions and has suggested in no uncertain terms that it would veto such a referral. The suggestion by Nicholas Eberstadt that the US should force the veto to underline the gravity of the charges is well-intentioned, but would require a prior decision to push a contested agenda. Do the US, France and the UK believe it worthwhile to push the issue, and if they did, would they get the votes?

It should be reiterated that the problems that China has with addressing North Korea at the UNSC or ICC level are by no means limited to its desire to prop up its delinquent ally. They go to the question of Chinese complicity in the crimes in question. We argued in our 2006 report for the Committee on Human Rights in North Korea and again in Witness to Transformation that the Chinese government is in clear violation of its obligations under the refugee convention when it denies the status of North Korean refugees as refugees and particularly when it engages in refoulement, or the return of refugees, to North Korean security forces. In a document that was as extraordinary as his letter to Kim Jong Un, Commissioner Michael Kirby also appended a letter to China to the CoI report in which he finally does the service of openly stating what we have long known: that Chinese authorities have not only repatriated refugees but have collaborated with North Korean security forces on both sides of the border to do so. Specific treaty bodies—on the torture convention, on the rights of women and on the rights of the child—have made these points but not with such visibility; Roberta Cohen walks through the legal issues surrounding the protection of North Korean refugees here.

If the signal of adequate displeasure with the report allows the Chinese to keep North Korea off of the UNSC, the US and other interested parties could resort to the so-called Arria formula. The Arria process 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 procedural framework that does not formally commit the Council. Convenors of these meetings can effectively call whomever they wish, and the natural person to conduct such a briefing would be the chairman of the CoI Michael Kirby. Such a meeting would allow the members of the UNSC—hopefully the Permanent Representatives themselves--to hear the findings of the CoI first hand and decide whether it merits wider UNSC airing. It would also provide an opportunity for the US, France and Britain to count votes. Among the issues that might be discussed would be how the UN system itself might respond to the CoI findings; we take up that issue in more detail tomorrow.

Another interesting institutional question is whether the General Assembly may have some role to play. In the early 1970s, the General Assembly repeatedly called on the UNSC to take up the South Africa issue, but at the time the US, France or Britain were unwilling to do so and the issue was thus blocked. In 1973, the UNGA decided to reject South Africa’s credentials and from 1974 South Africa effectively could not participate in the UNGA. This effort, led by Algeria, had broad Third World support and the annual rejection of South Africa’s credentials carried by overwhelming majorities. Blocking the participation of North Korea might be a harder sell, but not impossible if the advanced industrial democracies vote as a bloc and the developing democracies split on the issue as they are likely to do.

Again, our sincere thanks to Roberta Cohen and Jared Genser for helping us navigate the complex legal and institutional issues. Wednesday: possible actions by the Human Rights Council, the High Commissioner on Human Rights and the specialized agencies.

Witness to Transformation Posts on the CoI:

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