On December 18, the UN General Assembly took its final action of the year on the Commission of Inquiry report, voting 116-20 with 53 abstentions on A/RES/69/188 on the “Situation of human rights in the Democratic People's Republic of Korea.” The vote marked a slight increase in support from the Third Committee vote we reported earlier, although with some movement in both directions (111-19 with 55 abstentions; the list of changes is reported below).
The most controversial portions of the resolution had to do with referral to the Security Council and the question of personal culpability of the North Korean leadership for possible crimes against humanity; as the head of the CoI Micheael Kirby repeatedly stated, the body was investigative not prosecutorial and the CoI report should be forwarded through the Security Council for referral to the International Criminal Court.
In a letter dated December 5, 10 members of the Security Council (Australia, Chile, France, Jordan, Lithuania, Luxembourg, the ROK, Rwanda, the UK and the US) formally asked that the issue be put on the UNSC agenda—without prejudice with respect to the nonproliferation concerns raised by previous resolutions—and called for a meeting on the issue, with briefings by officials both from the Secretariat and the UN Office of the High Commissioner on Human Rights.
What is extraordinary is that all of this actually transpired last Monday. The ten signatories of the December 5th letter were ultimately joined by Argentina on the procedural vote, with Russia and China opposing outright and Chad and Nigeria abstaining. Under so-called non-consensus procedures, the P5 do not have the power to block such a resolution (the Security Council Report offers up an interesting analysis of non-consensus UNSC votes in the post-Cold War period; they have declined sharply). North Korea could have attended the council meeting to make its case but did not.
The Council was briefed in utterly unsparing fashion by Assistant Secretary-General for Human Rights, Ivan Šimonović and Assistant Secretary-General for Political Affairs, Taye-Brook Zerihoun and the debate was substantive; the UN press shop provides excellent summaries of the statements. A central theme to emerge from supporters of placing this on the UNSC agenda is what might be called a “two track approach.” On the one hand, the CoI called for dialogue with North Korea on its human rights situation. The North Korean effort to deflect the UNGA resolution had in fact offered up such dialogue as a concession. This channel could include inter alia the UN rapporteur, visits by organizations such as the Red Cross, technical assistance from the High Commissioner on Human Rights (the least likely outcome in our view) and bilateral dialogues held with countries or groups of countries, particularly the EU (we argued in an earlier post that Europe is better-positioned to lead such an effort than the US).
At the same time, there was widespread skepticism that North Korea would address the issues raised by the CoI unless a separate “accountability” channel was opened through the UNSC and ultimately the ICC; Ivan Šimonović as well as a number of country delegations were again refreshingly blunt on this issue. But it was precisely on this point that China demurred most strongly, arguing in twisted fashion that the report would only inflame the situation on the peninsula--for which North Korea itself is largely responsible. Much has been made of China being fed up with North Korea (see for example the most recent incarnation of wishful thinking by Richard Haass for the WSJ). But when push comes to shove, China—backed increasingly by Russia, including on the Sony hack—has retreated to its mantra of restarting the Six Party Talks. Chinese defensiveness is not simply pragmatic: Beijing itself was called out during the debate for enabling North Korean human rights abuses, most notably through the shameful policy of cooperating with North Korean security forces in returning refugees to the country, where they are incarcerated, tortured and in some cases executed.
The human rights community is taking a victory lap for the incredible work that has gone into getting this issue on the UNSC agenda, and rightly so. But much uncertainty remains about next steps, as we have argued from the inception of the CoI process. While China and Russia cannot veto a procedural motion to put the issue on the UNSC agenda, they can veto referral to the ICC. They can also veto any UNSC actions that impose costs on North Korea, such as human rights-related sanctions. In what sense can there really be pressure on accountability if there is no prospect of an ICC referral or other forms of collective action? The problem, sadly, is a more general one. Just this week, the ICC faced an important setback when it finally threw in the towel on the genocide case against Sudanese President Omar al-Bashir. The reason: utter failure to secure any cooperation in his arrest.
Nor can we rule out that the North Korean reaction to the UN process will increase instability on the peninsula, and perhaps even worsen the human rights situation in the short-run; we take up the North Korean reaction in a subsequent post.
Nonetheless, we should take seriously the fact that North Korea has shown particular upset at the process. This is only the third time in UNSC history that the human rights situation of a country has become an agenda item; the other cases are Zimbabwe in 2005 and Myanmar in 2006. The fact that North Korea is now on the UNSC agenda assures that the issue will remain under the spotlight, including through the creation of a so-called “field structure”; an office in Seoul to be set up in early 2015—that will continue the crucial process of documentation. But despite the initial backlash from North Korea, it is particularly important to continue the process of outreach to the country. Anything that mitigates the most egregious abuses, particularly with respect to the camps, refugees and food, is welcome.
Changes from the Third Committee to UN General Assembly Vote on the North Korea Human Rights Resolution
Dominica: from absent to yes
El Salvador: from abstain to yes
Gambia: from abstain to no
Grenada: from abstain to yes
Guinea Bissau: from absent to yes
São Tomé and Principe: from absent to yes
South Sudan: from abstain to yes
Tajikistan: from yes to abstain
Tonga: from absent to abstain
Witness to Transformation Posts on the Commission of Inquiry
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)
The Commission of Inquiry: The Arria Meeting (April 21, 2014)
North Korea Admits to Prison Camps--Or Does It? (October 8, 2014)
On the UN politics, October-December 2014: Human Rights Racket: Alive and Kicking (October 10, 2014, on the October 6 letter from the DPRK Permanent Representative); Human Rights Roundup and The North Korean Counter-Resolution (October 20 and 21, 2014); UN Diplomacy Continued, Parts One and Two (October 28 and 29); The End of the Charm Offensive, Part One and Part Two (November 6 and 7). The Third Committee Vote (November 19). Human Rights Roundup and Now the Hard Part (November 24 and December 1 on the aftermath).