On March 28, the Human Rights Council voted a resolution (A/HRC/25/L.17) on the human rights situation in North Korea, responding to the comprehensive and damning Commission of Inquiry report (our posts on the CoI are linked below). The most significant aspect of the resolution was the endorsement of the CoI’s finding with respect to crimes against humanity. The resolution also calls on the UN General Assembly to refer the issue to the UN Security Council for consideration of sanctions and even referral for criminal indictment. These measures are unlikely to be taken by the UNSC given China’s stance. But the passage of the resolution provides insight into international sentiment on the issue, will force consideration of the issue at the UNSC and must be seen as a win for the human rights community.
The vote was 30 in favor, 6 against and 11 abstentions with only a handful of surprises. Those voting in favor were largely a coalition of developed and developing country democracies; those opposed were China, Cuba, Pakistan, Russia, Venezuela and Viet Nam. In remarks on their votes, China, Cuba and Venezuela effectively invoked the sovereignty norm by arguing that any human rights inquiry should take place only with the consent of the party in question, an approach that would protect the worst violators from any scrutiny. As Frank Januzzi points out in a useful post at 38North, these claims are particularly disingenuous. We doubt seriously whether China did much to encourage the DPRK to participate in the CoI process.
Among the democratic abstentions were India, Indonesia, and South Africa. Indonesia was a particular disappointment given the fact that Marzuki Darusman, the Special Rapporteur on North Korea, served on the CoI. But the government has maintained amicable diplomatic relations with the country and may have acted out of the Non-Aligned Movement’s long-standing opposition to country-specific mandates.
The regional breakdown of the vote provide some insight into resistance to the approach among developing countries. All of Latin America was in favor except for Cuba and Venezuela, but Africa and the Middle East and North Africa split pretty much evenly between yes votes and abstentions.
David Hawk and Roberta Cohen were kind enough to walk us through the procedural aspects of the resolution. The text was sponsored by a group of 50 countries co-chaired by Japan and the EU and negotiated only among the co-sponsors; China obviously was not a member of this group although it did participate in a three-hour informal review of the resolution. An interesting feature of this informal review was that participants wanted a much stronger text on a number of issues including on sanctions. In theory, the resolution could have been adopted by consensus, as the decision to initiate the CoI was. But despite being called to a vote by opponents—requiring countries to show their hands--the majority held.
Much of the resolution is taken up with appeals to North Korea to cease and desist and procedural matters, although not without consequence. The mandate of the Special Rapporteur was extended for a year and, in somewhat weak language, the resolution “calls upon all concerned parties, including United Nations bodies, to consider implementation of the recommendations in the report…” [emphasis added]. The Rights Up Front approach, which calls on the UN agencies to integrate human rights into their work, was not mentioned in the final draft. However, this does not preclude the Secretary General from taking action and the report explicitly calls for the Office of the UN Commissioner for Human Rights to support the Special Rapporteur in continuing the CoI’s process of documentation, outreach and engagement.
However, the resolutions contains particular strong language on the core finding of the report with respect to crimes against humanity; the resolution is worth quoting in its entirety:
“5. Acknowledges and is deeply troubled by the commission of inquiry's finding that the body of testimony and information received provides reasonable grounds to believe that crimes against humanity have been committed in the DPRK, pursuant to policies established at the highest level of the State for decades. These crimes against humanity entail extermination, murder, enslavement, torture, imprisonment, rape, forced abortions and other sexual violence, persecution on political, religious, racial and gender grounds, the forcible transfer of populations, the enforced disappearance of persons and the inhumane act of knowingly causing prolonged starvation.”
Several things are noteworthy. First, the indictment covers all of the crimes against humanity that the CoI was asked to investigate. Moreover, the language on food is potentially precedent-setting, as it includes in the list of crimes against humanity “knowingly causing prolonged starvation.” For anyone interested in the international law on this issue, we continually recommend the outstanding piece by David Marcus on this issue (Famine Crimes in International Law).
What next? The Human Rights Council is a subsidiary organ of the General Assembly and thus cannot refer this issue directly to the Security Council. Rather, the resolution will now pass through the 3rd Committee of the UNGA later this year, which will decide whether to refer it to the UNSC. If that UNGA vote mirrors the HRC vote, it will pass but effort will no doubt now be made to widen the majority. If is referred to the UNSC, another round of politics will ensue around the two main punitive measures in the resolution. The first is language on sanctions drafted by the US and France (consideration of “targeted sanctions against those who appear to be most responsible for crimes against humanity”); the second and more explosive is referral of the issue to “the appropriate international criminal justice mechanism.” This language also struck as interesting because it implies that the ICC may not be the only possible body to consider the issue but that a special tribunal might be proposed.
We confess to somewhat mixed feelings about the passage of the HRC resolution. On the one hand, it represents a triumph for the many groups and human rights advocates working on this issue. Marcus Noland and I were particularly gratified to see potentially precedent-setting language on food and continuing mention of China’s obligations under the refugee convention. On the other hand, North Korea’s response was defiant, literally “mind your own business.” It is not impossible that the report will stiffen the regime’s resolve to maintain order in the face of renewed attention to human rights issues. To date, much more effort has gone into documenting North Korean abuses than addressing the much tougher question raised by Frank Januzzi: how—and whether--to actually engage with North Korea on the human rights issue.
The Human Rights Council Vote
In favor (30): Argentina, Austria, Benin, Botswana, Brazil, Burkina Faso, Chile, Costa Rica, Côte d’Ivoire, Czech Republic, Estonia, France, Germany, Ireland, Italy, Japan, Kazakhstan, Maldives, Mexico, Montenegro, Morocco, Peru, Philippines, Republic of Korea, Romania, Sierra Leone, The former Yugoslav Republic of Macedonia, United Arab Emirates, United Kingdom, and United States of America.
Against (6): China, Cuba, Pakistan, Russian Federation, Venezuela and Viet Nam.
Abstentions (11): Algeria, Congo, Ethiopia, Gabon, India, Indonesia, Kenya, Kuwait, Namibia, Saudi Arabia, and South Africa.
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)