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North Korea: Witness to Transformation

Reactions to the Commission of Inquiry Report: What Next?

by and Marcus Noland | February 24th, 2014 | 07:14 am
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Maybe it was the slow news cycle, maybe it was the sheer depth and breadth of the documentation provided by the Commission of Inquiry report released earlier in the week (our coverage and all links here). But the report is sparking much more discussion both inside and outside the North Korean community than we expected. Nick Eberstadt came out with a forceful “never again” statement at the Wall Street Journal, concluding that the international community can no longer hide its head in the sand. But the morning-after problem now presents itself: what exactly can be done? In this and future posts, we will review some of the ideas that are emerging on how to effectively address the North Korean human rights challenge.

Crimes Against Humanity and the International Criminal Court

As we argued in our initial review, the finding with respect to crimes against humanity is explosive because it sets the stage for possible referral to the International Criminal Court. The report notes that “options include a Security Council referral of the situation to the International Criminal Court or the establishment of an ad hoc tribunal by the United Nations.”

A plain reading of the Rome Statute (Articles 13-15, 53-61) would appear to suggest that a UNSC referral is not required to initiate such a case; states can make referrals and the Court itself can initiate investigations. But a standard international legal Catch-22 pertains: the Rome Statute provisions only apply to state parties that have accepted the authority of the court, which North Korea has not done and is unlikely to do. Back in 2011, Marc Noland wrote a short post on an investigation that had been launched by the court at South Korea’s behest into both the sinking of the Cheonan and the shelling of Yeonpyeong Island. But this was fair game because the actions took place on South Korean territory (depending on your interpretation of the Northern Limit Line) and arguably constituted crimes under the Rome Statute.

However, the DPRK is a party to the UN Charter, a treaty that gives the Security Council wide-ranging powers under Chapter VII, including the ability to use force to advance peace and security. The Rome Statute specifically permits referrals under Chapter VII, which could cover crimes committed at any time since the treaty came into force in 2002. The Commission of Inquiry no doubt raised the special tribunal idea because it could investigate actions as far back as the Security Council believed was warranted.

But both of these processes—a UNSC ICC referral and the creation of a special tribunal—have to run the gauntlet of a Chinese veto. Both Eberstadt and Jared Genser (whom we consulted on this post) argue that the case should be pursued despite Beijing’s objections, either to force an abstention or—more likely in our view—to make them go on record with an embarrassing veto.

Sanctions

The report mentions sanctions, and particularly sanctions against individuals who were complicit in the crimes against humanity. This reminded us that the CoI report is almost certain to spark new debate about HR 1711, the North Korea Sanctions Enforcement Act of 2013; Marc Noland also provided a detailed analysis of that bill, which he called “BDA on steroids” because of its focus on financial instruments such as those used against Banco Delta Asia in 2005.

We will not go into the instruments used in detail, but only note here that the bill itself seeks to expand sanctions not only against WMD-related trade, but against the “entities, officials, and financial institutions that facilitate proliferation, illicit activities, arms trafficking, imports of luxury goods, severe human rights abuses, cash smuggling, and censorship by the Government of North Korea.” Severe human rights abuses are quite precisely defined as “genocide, slavery, kidnaping, peonage, murder, torture, and aggravated sexual abuse” but could easily be expanded to incorporate the Rome Statute language that guided the CoI. Haggard is somewhat more skeptical than Noland that these actions will have concrete effect, but the case is most eloquently made by Josh Stanton, whose “Financial Constriction Strategy” pretty much speaks for itself. Stanton and Sung-Yoon Lee (Fletcher) have updated the sanctions argument for the Washington Post.

De-recognition

Another novel idea, suggested to us by Dan Pinkston at the International Crisis Group, would be diplomatic de-recognition. The logic of de-recognition is that North Korea seeks status as much as anything else. If major European and other developing democracies took the step of de-recognizing the country, it would send a message at both the ideational and material levels: that diplomatic recognition is not given by claims of sovereignty alone and that egregious violations of human rights can deligitimate a government altogether.

Many will argue that de-recognition would complicate engagement efforts, but these fears may be exaggerated. The US does not have diplomatic relations with North Korea yet has been the largest contributor to multilateral aid efforts, much of which were negotiated bilaterally between the Washington and Pyongyang and involved participation by American NGOs. Of North Korea’s five interlocutors in the Six Party Talks, only China and Russia have diplomatic relations with North Korea. Having an embassy in Pyongyang is not a prerequisite for humanitarian engagement with North Korea nor for other diplomatic negotiations either.

The democratic African country of Botswana has taken the plunge, announcing that in response to the Commission’s report it was severing its relationship with the Kim regime. The government’s statement is worth quoting in full, as it offers an eloquent statement of the de-recognition logic.

“The Government of the Republic of Botswana wishes to announce that it has decided to terminate, with immediate effect, diplomatic and consular relations with the Democratic People’s Republic of Korea (North Korea). It will be recalled that early last year Botswana suspended bilateral cooperation with North Korea as the result of the threat posed by that country to international peace and security.

The Government’s decision is informed by the recently released report of the United Nations Commission of Inquiry on Human Rights in North Korea which details systematic, widespread and grave human rights violations by North Korean authorities. The Government of Botswana does not wish to be associated with a Government which continues to display such total disregard for the human rights of its citizens.

The deplorable acts catalogued in the United Nations’ report are startling and warrant strong condemnation by the international community. As a member of the International Community of nations, North Korea has the responsibility for the welfare and wellbeing of its people and respect for human rights which have unfortunately for too long been seriously lacking in that country.

Botswana wishes to underscore that the severing of diplomatic relations is not in any way targeted at the people of the Democratic People’s Republic of North Korea. Meanwhile, Botswana wishes to convey its heartfelt sympathies to the people of North Korea who are currently subjected to inhuman treatment under the leadership of Kim Jong Un.”

The invocation of Botswana, a democratic, “frontline,” state in the struggle against apartheid, raises the specter of apartheid-era South Africa which Marcus Noland covered in a recent post. We will return to the South African precedent in future posts, including the suspension of its credentials by the UN General Assembly in 1974.