A Break in the Status Quo: Could North Korea be Referred to the ICC?

Animation / Image from Camp 14: Total Control Zone

(Animation scene from Camp 14: Total Control Zone)

It’s news that isn’t actually news. A Commission of Inquiry, set up by the United Nations, has issued a report concluding that North Korea has been committing crimes against humanity against its own people. Evidence was gathered primarily through the testimony of North Koreans who had defected from the regime and focuses on the country’s notorious labour camps.

As the report was released, Michael Kirby, one of the Commission’s members sent an ominous message to North Korean leader Kim Jong-un, suggesting that he could eventually be prosecuted at the International Criminal Court (ICC):

“The Commission wishes to draw your attention that it will therefore recommend that the United Nations refer the situation in the Democratic People’s Republic of Korea [the formal name for North Korea] to the international criminal court to render accountable all those, including possibly yourself, who may be responsible for the crimes against humanity.”

Here are a few thoughts on what the Commission’s report means – and what it doesn’t.

North Korea’s Holocaust?

Kirby compared the atrocities being committed in North Korea to those of the Holocaust, stating that there were “many parallels”. As a means of highlighting the severity and extent of the atrocities perpetrated in North Korea, there is little doubt that comparing them to the Holocaust is useful. Drawing parallels between crimes committed by the North Korean regime and those perpetrated by the Nazis appears to be an attempt to strike a deep, moral chord within a primarily Western audience. Indeed, the reference to Nazi Germany was quite clearly made in order to galvanize support for some form of intervention into North Korea. Kirby declared that:

“At the end of the Second World War so many people said ‘if only we had known… if only we had known the wrongs that were done in the countries of the hostile forces’… “Well, now the international community does know… There will be no excusing of failure of action because we didn’t know.”

This is a misreading of what was known about the Holocaust during WWII. The Allied powers knew of Nazi-perpetrated atrocities long before the conclusion of the war and, for a complex, if questionable, set of reasons, explicitly ruled out any form of intervention to undermine the Nazis’ Final Solution that would detract from their singular goal of ending the war.

There is a widespread sense of guilt, especially within the West that not enough was done to stop the Holocaust (as well as the Rwandan Genocide). Its invocation is thus something of a moralizing call-to-arms aimed at preventing “another Holocaust”. But the invocation of the Holocaust as a tool to make headlines and stir the moral imagination of global audiences comes at some cost, especially as it has the effect of de-contextualizing, de-historicizing and depoliticizing the crimes – both in North Korea and during WWII. This has the ultimate effect of making it immensely difficult to craft appropriate responses to mass atrocities – even more so than it already is.

Image of an alleged prison camp in North Korea, captured by Google Images

Image of an “Camp 22” in North Korea, captured by Google Earth

Rocking the Boat: Pressure to Refer North Korea to the ICC?

There has long been a rather “precarious silence” regarding the potential for international criminal justice  in North Korea. I have previously written about the existence of a status quo, reinforced by the international community in its relations with Pyongyang and which has precluded attempts to bring leaders of the regime to account. The Commission of Inquiry poses a potentially significant challenge to this status quo. And this is perhaps its most important contribution.

There have previously been calls to refer North Korea to the ICC but nothing nearly as substantive as the Commission’s report. While the recommendations of Commissions of Inquiry are not legally binding, Commission report reports do hold a certain legal and political gravitas. As a result, the member-states of the United Nations Security Council will have a very difficult time ignoring the report. The question that remains is whether the report will lead the UN Security Council to deal with atrocities and international crimes being perpetrated in North Korea head on. It goes without saying that it is high time that they did.

Still, it is unlikely that the report will lead to a referral of North Korea to the ICC (although crazier things have happened in the world of international criminal justice, so you really never know). But the report could very well force UN Security Council states – especially the US, Russia and China – to deal with alleged atrocities on the Commission’s terms. This could potentially pose a severe test to that very status quo that has allowed states to largely turn a blind eye to North Korea atrocities for decades.

Blame China?

Since North Korea is not a member-state of the ICC, the North Korean leadership cannot be investigated or prosecuted for any atrocities perpetrated on North Korean soil. That is unless the Security Council agrees to refer North Korea to the Court. Again, this is unlikely to happen any time soon.

Reading various reports on the prospects of prosecuting North Korean leaders, it becomes clear that there is a broad consensus on what the main barrier to referring North Korea to the ICC is: China. For example, an article in al Jazeera claimed that “justice remains a distant prospect, not least as North Korea’s ally, China, would be likely to block any referral to the Hague-based ICC.” Peter Walker, writing in The Guardian, similarly argues that an ICC referral “would probably be vetoed by China, which has close links with North Korea”.

It may very well be that China is against a Security Council referral of the situation in North Korea to the ICC. In reaction to the Commission of Inquiry report, the Chinese government stated that it would “not help resolve the human rights situation” and constituted “unreasonable criticism“. Still, it seems to me that myopically honing in on China’s role – much the same way that many blame the lack of intervention in Syria on the “evil Russians” – is both wrong and irresponsible.

First, it is obvious that there can be no end to repression in North Korea without China. Second, what about everyone else? It seems far from clear that Western powers (especially the US) would be willing to have the situation in North Korea referred to the Court. Indeed, it is worth asking: has any major power – Western or not – put forward a comprehensive plan to prevent atrocities, achieve justice, and end suffering in North Korea? I think the answer to that question is a resounding no.

North Korean leader Kim Jong-un (Photo: EuroNews)

North Korean leader Kim Jong-un (Photo: EuroNews)

How will North Korea React?

It remains unclear how the North Korean regime will react to the Commission of Inquiry’s report. So far, the response has been muted. But prior to its release, some feared that the report could make matters worse – not better. As one observer suggested,

Yet some defectors and gulag survivors worry that the very act of trying to shine a bright public light into the dark corridors of the North could lead the Kim regime to kill the current denizens of the gulag, to “eliminate the evidence.”

Time will tell how the North Korean regime responds. Its reaction will likely and largely depend on whether – and how quickly – its favoured status quo can be re-established. But if the Commission of Inquiry’s report is – as many hope – a breaking point, then that status quo may have been permanently disrupted.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Commission of Inquiry, International Criminal Court (ICC), North Korea and tagged , . Bookmark the permalink.

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