The Talmud scholars have long written that it isn’t given to any generation of human beings to correct every wrong and every injustice. But neither are we excused from our obligation to try. And that is the challenge as an international community we face this week. It isn’t given to any generation, or members of the Security Council or the great officers of the world, to right every wrong. But surely we are not excused from our obligation to make a genuine effort now that we have the report of the Commission of Inquiry on Human Rights Violations in North Korea. - Justice Michael Kirby
Within the next few hours, we’ll know whether Kim Jong Un has the brass to conduct a nuclear test during President Obama’s tour of Asia. A test in the coming hours would shift the focus away from all of the carefully planned agendas and photo ops, and would lead to much more of the discussion we’ve heard lately about foreign policy drift in the administration. Some of that discussion deserves to be about the administration’s rudderless North Korea policy, but I hope that this time, the commentariat won’t just stop at the nuclear issue again.
In this sixth year of the Obama Administration, a series of three tweets and a blog post form the corpus of its policy — if you can call it that — for addressing human rights violations whose “gravity, scale, duration and nature” have no “parallel in the contemporary world.” A week after the members of a U.N. Commission of Inquiry and two North Korean witnesses appealed to Security Council members for action on the report, the administration shows no sign of having a credible and coherent plan to attach a prohibitive cost to those crimes.
[tweet, tweet, little birdie]
Power’s “#hell” hashtag can only be seen as a reference to her own scathing criticism of Clinton Administration officials who sat paralyzed for the duration of the Rwanda genocide. The idea that someone will eventually stain Ambassador Power’s legacy with the same charge must sting, but no hashtag ever prized open the gates to a concentration camp.
Maybe you believe that the release of the U.N. Commission of Inquiry’s report has finally driven Samantha “Genocide Chick” Power toward some sort of effective action. Maybe, through the servers of John Kerry’s State Department, she’s fighting an internecine struggle to take the issue before the Security Council. Maybe fresh editorials from the New York Times and the Washington Post, and a rising chorus of calls from NGOs, will weigh toward arguments for action, and against stalling in the name of diplomacy that carries an impeccable pedigree of failure. After all, President Obama knows that North Korea isn’t about to stop behaving “irresponsibly,” and isn’t interested in dialogue about denuclearization. At least implicitly, this recognizes the hard truth that the policies of the past and present have made no impression on the pathology behind both Pyongyang’s murder of its subjects, and its careful preparations to expand its killing zone beyond its own borders. At least, I want to believe it recognizes something this obvious, and that it will confront its implications.
Or maybe, Power’s hashtag is the policy. What a perfect symbol that would be of a foreign policy of peace pipes and drum circles and bravely running away from dangers that will chase us — but hopefully won’t catch us until someone else is president — in which meaningless gestures substitute for substance, consequences, and hard decisions. And maybe, like other ill-informed members of this administration, Power has been spoon-fed the lazy falsehood that there’s nothing more we can do, despite the relative weakness of our North Korea sanctions, the inattention to their enforcement, our failure to press China publicly on human rights or sanctions enforcement, and the underfunding of our subversive broadcasting to North Korea. I want to believe in the competence and moral clarity of this administration, because this is the government we elected. Sadly, no evidence supports such a belief.
Beyond symbolic gestures, the Obama Administration has passed up opportunity after opportunity for effective action. For example, who believes that the human rights abuses in Iran are greater than the outrages in North Korea? So why is it, then, that President Obama has signed an executive order blocking the assets of persons and entities involved in censorship and human rights abuses in Iran, but not in North Korea?
Say what you will about Ukraine’s deposed kleptocrats, at least they didn’t starve a million or two of their own people to death. Within days of their overthrow, the administration moved to block their assets. Two months after the release of the Commission of Inquiry’s report, the administration has taken no such steps against Kim Jong Un and the leaders of his security services — as Justice Kirby’s report called for. Why not do just this much? Are we more afraid that China and Russia will be offended that we block Kim Jong Un’s assets than those of the Revoluionary Guards or Yanukovych? Instead, the Nobel laureate in the oval office has taken a softly-softly approach reminiscent of Reagan’s ambivalence about apartheid-era South Africa.
In the last two months, much valuable time and momentum — the level of momentum that caused faraway Botswana to sever diplomatic relations with North Korea — has been squandered. Today, the COI’s report has advanced no further than a meeting of the so-called Arria Formula at the U.N. Security Council. That is where Justice Kirby made his appeal for action last week, and where Shin Dong Hyok and Lee Hyeon-So testified, not before an actual session of the Security Council.
The “Arria-formula meetings” are very informal, confidential gatherings which enable Security Council members to have a frank and private exchange of views, within a flexible procedural framework, with persons whom the inviting member or members of the Council (who also act as the facilitators or convenors) believe it would be beneficial to hear and/or to whom they may wish to convey a message. They provide interested Council members an opportunity to engage in a direct dialogue with high representatives of Governments and international organizations — often at the latter’s request — as well as non-State parties, on matters with which they are concerned and which fall within the purview of responsibility of the Security Council. [UN.org, hat tip to Stephan Haggard]
You should read Professor Haggard’s excellent post on the Arria procedure, although I analyze its outcomes much more skeptically than he does. Functionally, Arria meetings do not result in votes, resolutions, or even public debates. Notes of the meetings don’t appear in the U.N. Journal. No one is subjected to the pressure of an uncomfortable veto. Symbolically enough, they’re held in side-rooms, not where the Security Council holds its real meetings. Members of the Secretariat “are not expected to attend,” unless specifically invited. Depending on whether you believe the New York Times’s news reporting or its editorial page, either 10 or 13 member states attended. China and Russia were no-shows.
The Arria procedure, in other words, is an even bigger nothing than a non-binding “Presidential Statement.” It is the absolute minimum a Security Council member state can do and still say it has done anything at all. It’s a process for burying issues that some parties want to say they’ve talked about, and that other parties don’t want to talk about at all.
[Not a bad commentary on the Arria procedure, either]
What is the point of forcing a vote if it would only result in a veto? Kirby explains:
“The price of utilizing that mandate, or the veto, as it’s called, is that it should be done openly and should be accountable not only before the bar of history but before the international community,” Kirby said. [Yonhap]
Confidentiality notwithstanding, we have a pretty good idea about what Justice Kirby told those who bothered to attend. For one thing, someone leaked a draft of Kirby’s speech to our friends at the Associated Press:
Kirby’s speech described a North Korean man whose family was “executed in front of his own eyes but he was permitted no tears” and a woman “who was forced to watch another woman drown her newborn baby.” [....]
“We dare say that the case of human rights in the DPRK exceeds all others in duration, intensity and horror,” commission head Michael Kirby told the meeting, according to a copy of the speech obtained by The Associated Press. [....]
Kirby said the commission wants the Security Council to adopt targeted sanctions “against those individuals most responsible” and stressed that only the council can launch “immediate, impartial and just action to secure accountability.” Economic sanctions or a halt to humanitarian aid would harm ordinary citizens, he said. [AP]
On the matter of sanctions, I’ve put my own views to Justice Kirby directly — that sanctions can actually be used to fund humanitarian programs from the proceeds of crime, proliferation, and kleptocracy, and force necessary reforms. I’m confident that he’ll consider them, especially
if after action stalls at the U.N.
Separately, Kirby has also said that the Security Council would “be held accountable to history” if it fails to act. I’m glad Justice Kirby and others present interpreted the meeting’s confidentiality narrowly:
Of the 13 other Security Council members who attended the meeting, “nine expressly said the matter should be referred to the ICC,” Kirby said, and the other four were not opposed to it. He called the feeling in the council “very strong.”
The deputy British ambassador to the U.N., Peter Wilson, told the meeting that his country supports the call for the council to “consider appropriate action including referral of situation in #DPRK to #ICC,” his mission tweeted.
The U.S. ambassador, Samantha Power, said in a statement, “The commission’s findings and recommendations are extraordinarily compelling and deserve the full attention – and action – of the Security Council and of all members of the UN.” [AP]
But saying that this issue “deserves” the Security Council’s attention and action is one thing; pushing for a resolution is another.
[Michael Kirby, Sonja Biserko, and Marzuki Darusaman talk to the press after the Arria meeting]
The administration has the votes to send this issue to the Security Council if it wants to. If the Obama Administration even does policy planning on North Korea, I’m not privy to it, but there are far more indications of drift and apathy than of action. I’ve heard no indications that the administration means to force a vote at the Security Council, to impose targeted sanctions on North Korea’s principal perpetrators of human rights abuses or their foreign enablers, to include human rights in the agenda for the stalled six-party talks, to refer North Korea to the International Criminal Court, or to push for a Cambodia-style tribunal. (Kirby apparently mentioned the Cambodia option to one of the Washington Post’s editors. I mentioned it to him at breakfast that morning, and he was familiar with its history.)
Why won’t the administration act? The obvious explanation is simple incompetence — it’s disinterested in foreign policy, overwhelmed by what it can’t ignore, unfamiliar with the full range of legal tools at is disposal, and at a loss for dealing with a North Korea that won’t do the only thing this administration knows how to do — cut a deal. Viewed this way, the administration’s drift on North Korea resembles its flailing response to the Ukraine crisis, or its tragic failure to seize on the lost opportunities of the Iranian, Libyan, and Syrian revolutions.
Kirby also called out “South Korean officials and reporters” for being “tepid” on the COI’s report. (I also spoke to Justice Kirby about South Korea’s “ambivalence” about human rights in the North. South Koreans will be held accountable to history for that, too.) Kirby criticized the South Korean government for failing to publish an “accepted, authorized Korean version” of even the short form of the COI’s report, calling it “not acceptable that a Korean language version is not yet available,” and raising the issue with the Korean Ambassador to the United States.
But there is still reason for hope (remember that word?). For one, notwithstanding any diplomatic inducements or “progress” in compromising with China, North Korea still insists that denuclearization is off the table, and seems ready for a nuke test. For another, the COI’s report is still in the headlines and isn’t fading away. Justice Kirby, his fellow commissioners, and a growing number of influential Americans, both liberal and conservative, will keep pushing the administration to act. If North Korea does test a nuke, it’s almost certain that North Korea will not only face growing pressure for U.N. and U.S. sanctions, but that those sanctions will spill over into the area of human rights, too.