University of Leeds PhD Researcher Ben Willis discusses ongoing Security Council consideration of North Korean crimes against humanity.
Since 2014, the UN Security Council has been actively engaged in addressing the human rights situation in North Korea. However, despite the continuing perpetration of crimes against humanity as a matter of state policy, member states have been unable to generate a workable consensus on how the Council should respond. Fundamental divisions have limited their ability to reach agreement on appropriate measures between 2014 and 2017, while more recent diplomatic efforts launched by US President Donald Trump and South Korean President Moon Jae-in have prevented annual discussions from taking place in 2018 and 2019. Six years on from the landmark UN Commission of Inquiry report, it is worth taking stock of Council efforts to date.
Engaging the Security Council since 2014
Although not the first report to allege that violations in North Korea had reached the threshold of crimes against humanity, the work of the 2013-14 Commission of Inquiry (COI) process was ground-breaking in its impact. The principal findings of its final report in February 2014 concluded that the gravity, scale, and nature of rights violations in North Korea – committed against prison camp inmates, escapees, religious believers, international abductees and others – revealed a state that “does not have any parallel in the contemporary world”. COI chair Michael Kirby went so far as to draw equivalence with crimes committed by the Nazis and their allies during the Second World War.
The COI invoked the international responsibility to protect (RtoP) populations at risk, due to the manifest failure of host state authorities to do so, and advanced a range of accountability and engagement measures intended to achieve this. Along with reinforced human rights dialogues and an inter-Korean agenda for reconciliation, the COI called for the Security Council to pursue coercive Chapter VII measures by referring the situation to the International Criminal Court (ICC) and adopting targeted sanctions against key individuals.
The Council first took up consideration of the issue in an informal Arria formula meeting in April 2014. The initiative to include the human rights situation on its formal agenda was subsequently pursued in late 2014. Although the support of ten Council members was secured ahead of the eventual 22 December meeting, a procedural vote was still called by the Chinese permanent representative – the first since discussions on Myanmar back in late 2006. Eleven states ultimately voted in favour of agenda item adoption, including the P3 (UK, France, and the US) and the majority of the E10 (elected members of the Council), with Chad and Nigeria abstaining and only China and Russia voting against.
Further meetings of the Council took place under the agenda item in December 2015, December 2016, and December 2017 – with a procedural vote being called, and passed by a narrow margin, on each occasion. At no point during this time was a draft resolution tabled or an agreed Council statement issued.
In late 2018, a further meeting of the Council to discuss the situation was initially scheduled for 10 December. However, US officials announced on 7 December that the meeting would not proceed due to the apparent failure to secure more than eight votes in favour. Despite early indications at the time, no attempt was made to secure a meeting the following month, when the balance of the elected membership was seen as potentially more favourable to agenda item adoption.
Media reports in November 2019 suggested that the US and like-minded states were again aiming to hold a December meeting on the situation. However, speaking at a 6 December press conference on the programme of work for the month, US Ambassador Kelly Craft declined to confirm that the Council would be holding a meeting under its presidency. Within hours, it was reported that the US had informed allies that it would not support the meeting – and would not become the ninth signatory to the draft request letter. Falling short of the necessary procedural votes in favour, agenda item supporters shelved plans to hold the meeting.
Council Dynamics and Unaddressed Problems
Writing in early 2015, Alex Bellamy argued that the Security Council should initially focus its attention on North Korea towards “relatively modest steps” in order to build trust on the issue among members and establish clear parameters for sustained long-term engagement. Tying the agenda item to policy measures such as ICC referral and sanctions adoption from the outset, in this view, risked being entirely counterproductive. Given the manner in which discussions have evolved since then, it is worth sketching out some of the key dynamics underlying Council consideration of North Korea that RtoP advocates now need to address.
These can be usefully conceived as problems of interpretation, competences, outcomes, and issue leadership.
The problem of interpretation
The first problem concerns a divergence among states at the Council over the labelling of violations as atrocity crimes that would ‘trigger’ the use of Chapter VII measures under pillar III of RtoP. The P3 and the majority of the E10 have arguably fulfilled their minimal duty of conduct, in as much as they have identified violations as probable crimes against humanity and have sought to deliberate over the appropriate measures that should be taken.
With respect to agenda item opponents, it is worth noting that there has been no substantive defence or denial of North Korean rights abuses at the Council. E10 members that have abstained or voted against discussions have typically offered either explicit or implicit recognition of abuses – Angolan representative João Gimolieca, for example, indirectly admitting to the existence of “egregious human rights violations” in December 2015 despite voting against the holding of discussions.
Significantly, the P2 have made no attempt at the Council to defend North Korea or suggest that the COI provided an inaccurate factual assessment of the situation inside the country (something which had been a limited feature of debate at the Human Rights Council in March 2014). The opening statement given by Chinese Ambassador Liu Jieyi at the Security Council in December 2014 is particularly notable, given that it began with an unambiguous acknowledgement of the “existence of large-scale violations of human rights” in North Korea.
Where interpretation has diverged, however, is with respect to the fact that agenda item opponents have not used the language of crimes against humanity at any point – instead limiting their acknowledgement to the existence of more general human rights abuses, and not identifying violations as atrocity crimes that warrant consideration by the Council.
The problem of competences
Following on from the above, there has been unresolved dispute among the membership over whether the Council represents an appropriate forum for discussion of human rights violations in North Korea. This is a situation that arguably represents the single most testing case for the extent to which a reshaping of shared understandings over the role of the Council in the post-Cold War period has taken hold.
Supporters of the agenda item have repeatedly argued that alleged violations are crimes of international concern, and that as such they constitute a threat to peace and security within the remit of the Council. In contrast, those that have opposed or abstained from supporting the agenda item can be grouped into a case-specific and a general argument – both of which lead to a position that the Council is exceeding its competences, and that the matter should be addressed by the Human Rights Council and other relevant Charter and treaty-based mechanisms.
The case-specific argument is a prudential one that relies on the longstanding view that discussing human rights will undermine efforts at addressing non-proliferation concerns and broader regional peace and security. This is couched in appeals to a more traditional balancing of Council responsibilities. The prudential argument for ‘the greater good’, however distasteful, is nonetheless potentially consistent with RtoP – in as much as the World Summit agreement provides for no automaticity of response under pillar III and explicitly allows for the Council to exercise its judgement through only being ‘prepared’ to take action on a ‘case by case’ basis where it deems it appropriate.
The general argument, however, is that deliberation on human rights violations in any country outside of the context of armed conflict is never an appropriate topic of discussion for the Council. The comments by Russian Ambassador Evgeniy Zagaynov at the December 2017 meeting are particularly illustrative here:
“We have often expressed our opposition to the introduction of human rights issues into the Security Council’s agenda. We believe that they are not within the Council’s remit and should be considered by the specialized bodies… Given [its] mandate, the Council cannot be a platform for discussions of human rights situations, wherever they are. No international document on human rights assigns the Security Council authority for oversight or any other function in that area.”
Given that the RtoP paragraphs of the World Summit agreement were situated within the ‘human rights and the rule of law’ section of the outcome document, this assigns clear (albeit non-binding soft law) authority for oversight and enforcement to the Security Council. The general argument advanced by agenda item opponents is therefore wholly inconsistent with RtoP – and demonstrates an implicit rejection of pillar III in its entirety by the P2 and a minority of the E10 membership. As a general rule, it would discount any possibility of Council-authorised measures to respond to peacetime crimes against humanity – situations that constitute a sizable minority of atrocities around the world.
The problem of outcomes
This concerns the limits of RtoP as a catalyst for action and the hesitancy of agenda item supporters to push for any agreed outcome from discussions – whether a consensus presidential statement or binding resolution under the Chapter VI or Chapter VII authority of the Council. This raises the question of what advocates have tried to achieve through deliberation and how effective this has been.
Although early efforts were focused on building support for the agenda item, by late 2016 it was already clear that discussions were not progressing. Despite some shifting of positions within the E10 membership, overall levels of support did not change discernibly over time and the issue remained susceptible to procedural challenge by the P2. This led in part to a reliance on the use of Council side events in December 2016 and December 2017 to maintain focus on the issue. However, there was limited consideration by supporters about whether to try to increase the frequency of formal meetings – which evolved organically into a settled annual routine and was not the result of considered strategy – in order to build momentum within the Council.
It was, however, deliberate strategy on the part of the P3 and supportive E10 members not to push forcibly for an outcome document at any point. This is reflected in the declining reference to Chapter VII measures over time – in December 2015, for example, the P3 all expressed their support for ICC referral, as did E10 members Spain, Lithuania, and Chile. By December 2016, the US, France, and Ukraine were the only states to explicitly voice support for ICC referral (all three also indicating a degree of support for human rights-related sanctions). By the time of the December 2017 meeting, Italy was the only member of the Council to express support for ICC referral, and there was no mention of sanctions by any of those present.
The Council has been far less confrontational on the North Korean agenda item than with Syria and other RtoP crises. The reluctance to push for an outcome document has been accompanied by a decision not to call attention to the ever-present threat of veto; any notion that the P3 should forcibly ‘test’ the P2 veto – as has been suggested by Michael Kirby and others – is not one that has been taken forward. A greater sensitivity towards the opinions of the E10 and the wider UN membership, on an agenda item that has pushed at the limits of what is considered appropriate for Council discussion, has proscribed the type of adversarial ‘naming and shaming’ approach that has often characterised debate in the Council.
The problem of issue leadership
This final problem concerns the significance of the US assuming a lead role on the issue – in close consultation with South Korea, Japan, and other Council members – once the agenda item had been formally secured. Given that the US is penholder on the non-proliferation file, there may have been a certain inevitability to this development. However, it has carried with it ongoing concerns over the instrumentalization of the issue by the P2 and other E10 members – and, for the DPRK itself, is easily portrayed as further evidence of the longstanding ‘hostile policy’ of the US.
Discussions since 2018 have been further affected by the shift in US position under the Trump administration, which has moved towards exactly the kind of case-specific prudential arguments against Council discussions that had previously been voiced by China, Russia, and E10 sceptics. Recent US-North Korean and inter-Korean diplomacy – within which human rights considerations have played no discernible part – has had a decisive influence on the Council by preventing the holding of annual discussions both in December 2018, as part of a broader pattern of events, and in December 2019, as a deliberate act of US policy.
It remains to be seen where this will lead given that the US no longer appears to support the agenda item. Even if it were to change tack, the prospect of obtaining any outcome from discussions appears further limited. The US has become increasingly hostile towards the ICC under the Trump administration. China and Russia have meanwhile sought to weaken the non-proliferation sanctions regime on North Korea. Council discussion alone, however, is nonetheless invaluable in helping to at least maintain focus on the issue and apply pressure on the North Korean government.
As far as Security Council discussions are concerned, much will depend for now not on regional or international factors but on American domestic politics and the outcome of the presidential elections later this year. Whether the agenda item would therefore have been better served if taken forward by another member of the P3 or E10, and in more sustained or adversarial fashion, are among the hard counterfactual questions raised by the case.
As it stands, early progress at the Council has failed to overcome entrenched disagreement and ultimately led to uncertainty over whether discussions will continue. For the international community to fulfil its moral and political responsibilities towards those at risk in North Korea, renewed effort is needed to find a way forward.
Ben Willis is a PhD Researcher at the European Centre for the Responsibility to Protect. This piece is based on a recent paper given at City, University of London in January 2020. The author wishes to thank Andrew Wolman for organising the research seminar and the various respondents for their helpful comments.
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Title image: https://en.wikipedia.org/wiki/File:Kim_and_Trump_shaking_hands_at_the_red_carpet_during_the_DPRK%E2%80%93USA_Singapore_Summit.jpg