UN Diplomacy Continued (Part II)

Yesterday, we continued our coverage of the UN diplomacy over the Commission of Inquiry report. By far, the most interesting event of the week was the extraordinary panel discussion convened by Australia, Panama and Botswana on the human rights situation in North Korea, including testimony from two prison camp survivors and commentary by both Australian justice Michael Kirby, head of the CoI, and Ambassador Jang Il Hun, the DPRK’s United Nations envoy; thanks to Sandra Fahy, an edited version of the core of the exchange can be found here. If you have any interest in human rights in North Korea, this simply must be watched; we summarize the highlights here and consider the diplomacy in play.

Kirby is the first speaker granted the floor and makes an uncharacteristically blunt assessment of North Korea’s strategy: that its “rosy report” masks continued failure to engage seriously on the issues and is essentially a diplomatic feint to head off a toughly-worded UNGA resolution. Kirby is followed by brief but searing testimony from two prison camp survivors that touch on almost the entirety of the CoIs agenda, from the songbun system, to the lack of due process, the camps themselves, the abuses in them, and the refugee problems that ensued.

Jang is then granted the floor (at about 40 minutes). In addition to attributing the report to the hostile policy of the United States, he poses three specific questions or charges:

That the witnesses before the CoI were effectively led;
That the report does not state clearly exactly which policies of the government constituted crimes against humanity;
That the CoI did not take into account the DPRK’s own human rights report nor the guarantees of human rights contained in its constitution.

Kirby is extraordinarily judicious in his first response, defending the questioning of the witnesses as non-leading and revelatory, restating the general findings and acknowledging the DPRK report.

However, when further pressed by Jang on the particular actions that constituted crimes against humanity, Kirby offers a tutorial on the international legal issues. He restates that the CoI is not a prosecutorial body, but that it found reasonable evidence of crimes against humanity with respect to the political and ordinary prison camps, the targeting of those deemed to hold subversive beliefs, mass starvation, and the targeting of people from other countries including through abductions. Moreover, he notes that the culpability of the top leadership does not hinge on tracing particular orders through the chain of command, as Jang’s line of questioning seemed to suggest. Rather leaders may be held accountable for crimes against humanity if they have the power to prevent them but fail to do so. Kirby reiterates that placing the issue before the ICC, and allowing the CoI to visit and engage with North Korea on the issue, are the most efficient means of reaching closure on the issues raised in the CoI report.

A problem with closed authoritarian regimes is that they are not used to being subjected to scrutiny or held accountable. According to Vice News, no sooner had the session ended than Korean speakers in the chamber picked up one of the North Korean diplomats using a racist slur against the Ambassador from Botswana; that country took the unusual diplomatic step of actually derecognizing the country after the CoI report appeared.

This should not come as a surprise, however. As the Vice News piece also points out, North Korea sought to tarnish the CoI process by attacking Justice Kirby as well. In April, the KCNA referred to Kirby, who is openly gay, as "a disgusting old lecher with a 40-odd-year-long career of homosexuality," claiming that it was "ridiculous for such gay to sponsor dealing with others' human rights issue." (The article also claimed that there were no homosexuals in North Korea; my colleague Marc Noland weighs in on this preposterous claim).

What is going on here? It is a testament to the significance of the Rome Statute and the formation of the ICC that the North Koreans appear surprisingly nervous about the UN General Assembly proceedings. Colum Lynch at Foreign Policy has an interesting story on the sharp-elbowed diplomacy over the accountability issue.

According to Lynch, the North Koreans have reached out to the Cubans and Chinese to appeal to the Europeans to remove any reference to personal accountability. North Korea has even taken the extraordinary step of establishing contact with the Special Rapporteur on North Korea, Marzuki Darusman, and signaling its willingness to entertain a visit. Darusman, the former Attorney General of Indonesia, presents his annual report on North Korea to the U.N. General Assembly's human rights committee this week, and it is likely to contain similar language seeking referral of the case to the ICC. The Chosun Ilbo already reports that North Korea may be emptying out Yodok to show it as a collective farm in the case of an outside visit; the problems facing human rights engagement with North Korea resemble the problems the international community faces with respect to the monitoring of food and the nuclear question as well.

China can use its UN veto to block ICC referral at the Security Council if it chooses; Justice Kirby urged them in strong language to exercise leadership on the issue and not to do so. But the findings of the CoI should not be the subject for negotiation. The charges are plausible enough for them to be considered at the ICC, and if North Korea wants to defend itself it can do so in a prosecutorial setting in which all legal opportunities for a defence will be provided. At the same time, however, if North Korea is seriously interested in engaging on the substance of the issues—such as opening the prison camps to outside independent scrutiny, for example through the Red Cross—then the international community should test the waters. Our concern: the interest in doing so is no greater than the interest in negotiating in earnest over the nuclear weapons program.

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)

The Commission of Inquiry: The Arria Meeting (April 21, 2014)

North Korea Admits to Prison Camps--Or Does It? (October 8, 2014)

Human Rights Racket: Alive and Kicking (October 10, 2014, on the October 6 letter from the DPRK Permanent Representative)

Slave to the Blog: Human Rights Edition (October 20, 2014)