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The two arms of the International Criminal Court and the Democratic People’s Republic of Korea: Why the European Union and Japan are pushing effectively and at the right time.

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By David Koeller

On Friday 10.10.2014 the European Union (EU) and Japan announced to the public that they have submitted a draft resolution to the General Assembly of the United Nations in which they call for the situation in the Democratic People’s Republic of Korea to be referred to the International Criminal Court(1).
This move is ground-breaking in the world’s response to the situation in North Korea and is coming at a time when the North Korean government is considerably weaker than in recent years. Kim Jong-Un, the current supreme leader in the DPRK, has not been seen in the public for over a month and there is suspicion that he is suffering from a serious illness. Before still pictures of him reappeared after several weeks of complete absence, he had been seen limping and missed many important political events(2).
Furthermore, senior leaders of the North Korean government have been surprisingly open for talks with both the Republic of Korea (South Korea) as well as the EU. A delegation recently visited South Korea and has promised to hold talks on conciliation(3).
The World Food Program (WFP) is currently active in the country and is trying to help malnourished children, who are hit hardest by the food crisis in the country. The WFP reports that at this point almost one out of three children in North Korea is malnourished and might never properly develop as a result. In the latest report on its project in the DPRK the WFP writes(4):
‘Given the extent and continuation of the poor funding situation for the operation, a more systematic targeting and further prioritization of the existing resources was warranted. Therefore, DPRK Country Office has conducted a budget revision to realign both the beneficiary groups and food ration to meet the most vulnerable. This budget revision incorporates a reduction in the number of people to be assisted under the PRRO from 2.4 million to 1.8 million in 87 counties within 9 provinces for 2014-2015 with 137,238 mt of mixed food commodities. Five out of the seven biscuit factories were phased out from the project during the first half of 2014.’(5)
The United Nations Human Rights council’s Commission of Inquiry (CoI) on the situation in the DPRK has labelled the food situation in the DPRK as ‘one of the worst cases of famine in recent history’(6).

What happens now?
The alarming famine situation combined with the suspected illness of Kim Jong-Un and a recently kick-started commitment to talks between the North and South make the DPRK as likely to accept a compromise in negotiations as they have been in a long time.  Furthermore, it is highly likely that the government of the United States of America will focus on using this right moment for negotiations to put further pressure on the halting of the DPRK’s nuclear program, as they have numerous times in the past(7).

The move to involve the ICC comes shortly after a United Nations report on the Human Rights situation in the DPRK, which concluded:

Systematic, widespread and gross human rights violations have been and are being committed by the Democratic People’s Republic of Korea, its institutions and officials. In many instances, the violations of human rights found by the commission constitute crimes against humanity. These are not mere excesses of the State; they are essential components of a political system that has moved far from the ideals on which it claims to be founded. The gravity, scale and nature of these violations reveal a State that does not have any parallel in the contemporary world.’(8)

The responses from the EU and Japan are of no surprise after such a horrific report. At the time of writing this article, the draft resolution is now submitted to the United Nations General Assembly (UNGA). It remains uncertain whether the 193 states are going to pass it. However, since every member has one vote and there are no veto powers in the UNGA(9), it is quite possible that a resolution will pass with only minor amendments. This would mark a strong stand from the international community, making it unlikely that any negotiations with North Korea would leave out the topic of Human Rights protection.

The ICC and the UNSC; justice meets politics

The really interesting questions come afterwards; will the United Nations Security Council (UNSC) take up debate on referring the situation in the DPRK to the ICC? If they pass a resolution under Chapter 7 of the United Nations Charter it is possible for the UNSC to refer a situation in any country in the world, unconnected to whether that country ratified the Rome Statute, to the ICC. The founding document of the ICC, the Rome Statute, provides for this in Article 13 (b). So far this has happened in the cases of Darfur and Libya. The key player, should this proposal enter the debate in the Security Council, will be the People’s Republic of China. China is a long-time and only powerful ally of the DPRK. However, there seems to be no easy reasons which China could present to justify their veto against a resolution which represents the views of the international community as a whole(10). Nonetheless, a veto is still possible(11). So far China has mostly used its veto against proposals for UN interventions in crisis areas, it has never objected to referring a situation to the ICC(12). The classic argumentation for China vetoing a resolution is the argument of the principle of state sovereignty.  However, it would be largely inconsistent if the Chinese delegation would use this argument to prevent a referral of this situation to the ICC. The situation has been described by the most credible source available, the United Nations, as terror(13) and China has accepted referrals in lighter situations(14), i.e. Darfur and Libya. However, there is a possibility of China feeling cornered, since there have been recent reports of a worsening Human Rights situation in China as well(15). It will be interesting to see whether the Chinese delegation will use their veto or whether the pressure from the international community will be enough.

What is already clear is that either way the idea is a very strong one. Regardless of whether China vetoes a possible UNSC resolution or not, the focus will shift towards the Human Rights situation in the DPRK and put unprecedented pressure on its government to change the situation. The countermove that the DPRK has announced of launching its own draft resolution, pointing out the improved medical situation in the country and the launch of conciliation with the South(16) will not do the trick.

Beyond the Security Council

At this point further questions arise, these even more enticing than the previous ones; what happens if the UNSC actually refers the situation to the ICC? The normal step is a preliminary examination from the Office of the Prosecutor (OtP), which will serve as a basis for the decision whether the requirements for opening an investigation are met. To that end the OtP will be collecting relevant documents from all governments and governmental, as well as non-governmental, organisations which are willing and able to share information concerning the situation in the DPRK with the OtP(17). The OtP might even try to send a small team into the country. While the question of whether China would supply the OtP with information can be answered with a highly unlikely, the crucial part here is whether an ICC team will be allowed to enter the DPRK and how much information could be collected if they were denied entry. It is fair to assume that the recent UN report on the Human Rights situation will be of importance, due to its trustworthiness and recent publication.

To consider the question of a team of investigators entering DPRK’s borders, another question becomes of crucial importance. In what state will Kim Jong-Un be? Will he be in any condition to influence the decision, by making a strong stand? His deterioration would certainly heighten the chance for an ICC team to actually enter the country. This is due to the uncertainty this would bring to the ruling party. Kim Jong-Un would have been the shortest governing supreme leader of the DPRK(18). In the case of him stepping down from politics to take care of his health he would also be the first North Korean supreme leader to leave his post before his death.

Additionally, it is possible that the people of North Korea do realise the relative openness for negotiation of the government and the chance this would provide for them as well. The first protests against the Kim regime have been reported in 2011, due to a lack of food and electricity supply(19). However, these protests have not influenced the government’s position very much, although they caught the attention of the international community. If ever the time would be perfect for a local support movement for community international efforts concerning the DPRK it would be in the moment when a UNSC resolution has passed that refers the situation to the ICC. It lies within the nature of North Korea’s propaganda machinery and its effective isolation of most of its citizens from the rest of the world that this remains unlikely. On the other hand, if Kim Jong-Un recovers and takes full control of the government again, then the likelihood of any international organization entering the DPRK and achieving substantive work will severely deteriorate. However, this does not mean that the chance to push for an improvement in the Human Rights situation through the ICC would vanish. It is imaginable  that  the  ICC  would proceed  with  a  preliminary  examination  without  entering  the country and collect evidence and information on the basis of United Nations reports and friendly governments’ intelligence information.

Each  further  step  in  the  process  such  as  the  OtP  collecting  enough  evidence  to convince a Pre-Trial Chamber to rule in favour of an investigation and maybe even the issuing of an arrest warrant for Kim Jong-Un would further increase the pressure on all involved parties to pursue the goal of an improved Human Rights situation in the DPRK.

It will be interesting to observe the way in which the US government will react to the further proceedings, since an ICC examining the situation in the DPRK is of major interest for the US. However, they remain more than unwilling to support the ICC at the moment.

The two arms

Two conclusions can already be drawn. Firstly, the move to put a referral of the situation in the DPRK in front of the UNGA presents the biggest chance for a process leading to an improvement in the Human Rights situation in the country in recent history. Secondly, next to the obvious and direct influence the ICC can have on the situation in a country, if it leads to an effective investigation and subsequent trials, there also remains its second arm.

The influence of the first arm of the ICC can be understood as each step the Court takes in situations where it has at least a minimal available spectrum of actions. These actions can include enlightening investigations, the issuing of arrest warrants or summons to appeal, up to the conviction of someone proven guilty beyond any reasonable doubt. This direct influence is a very strong one that serves multiple purposes, such being the bringing to justice of those guilty of the most horrendous crimes(20), the establishment of a proper historical record of the situation and bringing peace to the families of victims and victims themselves.

It is understood that no lasting peace can be achieved without justice for at least some of the violence committed during the conflict. However, justice is not served only by prosecuting and sentencing individual offenders. What is of equal importance is that the roots, background and development, in short, the history of the conflict is exposed. The extent of the victims’ suffering, the hierarchy of the power structure, the planning policies and any contributing factors need to be revealed. Only when the truth is established can reconciliation begin.’ (21)

The author understands the second arm of the ICC as more of an indirect effect the ICC’s involvement in a situation has. The push of gross violations of Human Rights into the light of global media coverage gives the international community, both on the governmental side as well as on the civil society side, the possibility to take action. Without awareness there is rarely any larger action and the possibility of discovering that international leaders are large-scale criminals spreads awareness very effectively.  Campaigning  for  the  ICC’s influence and for it being able to take action means campaigning for international justice and an  intense pressure of  possible accountability  being put  on community or governmental leaders. It is the only constant international body that aims to prove any individual’s responsibility for the greatest atrocities happening in our global society beyond a reasonable doubt(22). Notwithstanding its indirect character the importance of this second arm should not be underestimated. It remains noteworthy that it is easier to make use of the ICC’s second arm rather than its first, but also that the second one is existentially dependent on the first.

The idea of the EU and Japan to involve the ICC with each step of the process that now follows will undeniably shape any negotiations with North Korean officials towards addressing the issue of Human Rights protection. Finally, the possibility of an enforced ICC investigation lends the alternative to a positive outcome of negotiation strength. There are many steps to be taken before the ICC has any legal ground for launching an investigation, not to mention before it can start a trial, but two things remain clear; a trial is possible in the future and the Draft Resolution in front of the UNGA has begun to push the Human Rights situation in North Korea into the spotlight.

To read the latest update on the situation: http://m.bbc.co.uk/news/world-asia-30107489

References:

1 Associated Press New York; EU, Japan pressure UN for sanctions on North Korea; on South China Morning Post

2 Steven Evans; Where is Kim Jong-Un? North Korean leader’s puzzling absence; BBC News Asia

3 Steven Evans; North and South agree to talks; BBC News Asia

4 WFP; Korea, Democratic People’s Republic (DPRK); Operations

5 WFP; Protracted Relief and Recovery Operation (PRRO) 200532 „Nutrition Support for Children and Women“ in DPR Korea

6 The United Nations Human Rights Council; Report of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea; A/HRC/25/63; para 82

7 See BBC News; North Korea profile; timeline

8 The United Nations Human Rights Council; Report of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea; A/HRC/25/63; para 80

9 United Nations Charter, Article 18

10 A United Nations General Assembly Resolution can be seen and is often interpreted as an expression of the will of the international community

11 United Nations Charter, Article 27 (3)

12 See United Nations Security Council Resolution 1593 (2005), S/Res/1593 (2005) and United Nations Security Council Resolution 1970 (2011) S/Res/1970 (2011)

13 See Ibidem at 8

14 See Ibidem at 12

15 United Nations Office of the High Commissioner for Human Rights; Universal Periodic Review Second Cycle – China; Compilation of UN information

16 Cara Anna; UN resolution: Refer North Korea to criminal court; Associated Press, The Big Story

17 Rome Statute of the International Criminal Court, Article 15(2)

18 See BBC News; North Korea profile; timeline

19 Joseph Yun Li-sun; first public protests against the Kim’s regime; 23.02.2011; AsiaNews.it

20 See Rome Statute, Preamble

21 Michael P. Scharf ‘The Politics of Establishing an International Criminal Court’ 6 Duke Journal of Comparative and International Law (1995) 167, p. 168. See also, Regina E. Rauxloh, ‘Negotiated History, the historical record in international criminal law and plea bargaining’, University of Surrey, 2010, page 1

22 Rome Statute of the International Criminal Court, Article 66 (3)

Bibliography

Online Resources: (Last visited on Saturday 11.10.2014 unless otherwise stated)

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