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



On Monday we reviewed some of the legal and institutional issues surrounding the UN Security Council and General Assembly response to the Commission of Inquiry report. Today we take up the Human Rights Council, the High Commissioner for Human Rights and the specialized agencies. Again, our sincere thanks to Roberta Cohen and Jared Genser for their tutorials on the international law.

The next step in the formal process surrounding the CoI report is its submission to the Human Rights Council. There are currently 47 members on the Council and the politics here is likely to be as intense as on the UNSC itself. The initiation of the CoI was an unusual consensus action, but that consensus could now be broken as the Human Rights Council is populated with a number of states that are themselves violators of human rights, including China, Saudi Arabia, Cuba, Venezuela and Russia. These countries have agreed to processes involving North Korea in the past, and developed and developing democracies constitute a majority of the committee. But some of those countries such as India may favor norms of non-intervention and authoritarian regimes may start to worry about the precedent of more intrusive UN processes focused on individual accountability. In addition, China is not without economic sway on the Council; a number of states on the HRC are recipients of Chinese largesse.

What might the Council formally do? The range of possibilities is wide, from simply taking note of the report as a whole in vague language, taking explicit note of particular findings—such as those on crimes against humanity—to suggesting specific actions. There is now an interesting precedent: the Independent International Commission of Inquiry on Syria. But the Human Rights Commission does have to produce a resolution of some sort, and the Syrian case suggests there will be dissenters. As we write this, serious consultation is going forward on what an HRC resolution might contain, but none of the major players are tipping their hands (the United States, South Korea and Japan are all on the HRC at the moment).

Thanks to Roberta Cohen at Brookings, we have a very cogent history of what role the UN High Commissioner for Human Rights and its office (OHCHR) has played and might play in the future. Cohen walks through the mandate of the UN High Commissioner to establish dialogue, offer technical assistance and to issue public statements—based in part on the work of the Special Rapporteur--and argues that all of these functions should be on offer and continue to matter. Navi Pillay’s forceful statements on human rights abuses in the country in 2013 no doubt played some role in the shift toward the CoI model and she has now argued publicly and strongly in the wake of the CoI report for referral to the ICC.

This position is justified, but it undermines the dialogue and assistance role. The CoI suggests that a possible future function of the High Commissioner with respect to North Korea would be to sustain and even institutionalize the documentation begun by the CoI. The Human Rights Council might also seek engage North Korea, but we doubt seriously whether North Korea will participate in a dialogue around the CoI report. We would also not be surprised if they withdrew from the Universal Periodic Review, the one international human rights-related process in which North Korea has participated. On the other hand, it is not clear that anything is lost from such a withdrawal, since they failed to accept a single one of the over one hundred suggestions that were made during the last review.

That leaves the question of the implications of the CoI report for the operation of the UN specialized agencies. The report has an intriguing recommendation that is worth quoting in full:

“The United Nations Secretariat and agencies should urgently adopt and implement a common “Rights up Front” strategy to ensure that all engagement with the Democratic People’s Republic of Korea effectively takes into account, and addresses, human rights concerns, including those collected in the present report. The United Nations should immediately apply this strategy to help to prevent the recurrence or continuation of crimes against humanity in the Democratic People’s Republic of Korea…”

The Rights Up Front initiative is not an invention of the CoI; it is a broader initiative of the Secretary General that was only launched in 2013.  Interestingly, the initiative is in the hands of the Deputy Secretary-General Jan Eliasson, who comes out of a long career in humanitarian affairs at the UN. The initiative is still taking shape, but is designed to operate as a kind of early warning system that would also inform the activities of the specialized agencies and the UN system. In addition, the Mr. Eliasson may have more discretion to act on these issues than the SG Ban Ki Moon.

As a result, it is possible to think creatively. A quick scan suggests that virtually all of the specialized agencies have some presence in North Korea, including the World Health Organization, the World Food Program, the Food and Agricultural Organization, UNICEF, the UN Fund for Population Activities and UNDP. Here are a few ideas that have come up in our discussions:

  • The WHO has a Health in Prisons (.pdf)  initiative. Why not direct the WHO to request access to prisons?
  • My colleague Marc Noland via Josh Stanton points out that the WFP claims to have access to provinces, and in some cases apparently even counties, in which there are penal facilities including the infamous kwan-li-so concentration camps. Has the WFP ever sought access to the camps? Why not?
  • The WFP has gotten more forward about the need for reform of the entire agricultural system as a pre-requisite for food security. Such observations address directly the mandate of the CoI to consider issues of the right to food  and should continue.
  • UNICEF operates in the country, and there are children in the camps. And who are these children who populate the orphanages? Where are their parents?
  • Jared Genser suggests the creation of a Special Humanitarian Envoy to North Korea. Such a position could coordinate and assure that human rights issues are considered in operations while also holding forth the promise of humanitarian assistance as needed.
  • And finally, it is time for the international community to get behind the mandate of the UN High Commission on Refugees (NHCR) and to address the shameful behaviour of returning refugees to be imprisoned and tortured in North Korea. UNHCR has been hamstrung by Chinese recalcitrance but also by lack of forceful advocacy on this issue by the major democracies. The legal issues—in our view—are clear and we have spoken on them at length in our 2006 report for the Committee on Human Rights in North Korea and again in Witness to Transformation. Roberta Cohen offers additional legal grounds for acting in a useful Brookings piece. On this issue, we could not agree more with the sentiment of Nick Eberstadt’s editorial: enough is enough.

Witness to Transformation Posts on the CoI:

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