“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’,” he said. “Well, now the international community does know… There will be no excusing of failure of action because we didn’t know,” he said, at a news conference at UN headquarters in Geneva. “Too many times in this building there are reports and no action. Well this is a time for action.” – Hon. Michael Kirby
Every family has its own traditions; all parents have their own rites of passage. My son and I had one of those last week when we watched Monty Python’s The Life of Brian together for the first time. With that memory fresh in my mind, I’m watching the extended procedural debate about U.N. resolutions to call for an end to atrocities that have gone on for years, and will almost certainly continue for years. We can already see this parliamentary debate descending into farce, because we know the odds that anyone will actually stand trial. As I watch it, I can’t help thinking of this scene:
Let’s assume, as we safely may, that China vetoes a resolution referring the U.N. Commission of Inquiry report to the International Criminal Court. Does that end all hope that North Korean leaders will face trial — even in absentia
? Maybe not. Yonhap, quoting “a diplomatic source,” is reporting that the U.N. “may seek to establish a special court to try North Korean leaders
responsible for atrocities against people there,” apparently to circumvent the threat of a Chinese veto. What would this tribunal look like? Reuters gives us a few hints:
The EU-Japan proposal also lays out a parallel path: the creation of a small U.N. human rights office dedicated to documenting crimes and raising awareness. This would probably be based in Seoul or Bangkok, collecting more evidence and testimony to widen the data base. [....]
South Korea’s foreign minister Yun Byung-se expressed support for strengthening U.N. mechanisms to “implement the commission’s recommendations”, but did not spell out how. [Reuters]
One additional advantage a Special Tribunal would have is that it would be more likely to gain the support of the Obama Administration, which has never signed the Rome Statute or agreed to submit to the ICC’s jurisdiction, and is reportedly uncomfortable with using the ICC as a vehicle for accountability. (It will not overcome the problem that the Obama Administration and the State Department don’t give a f**k about any of this.)
Is a special tribunal a plausible option? Special tribunals for Yugoslavia, Lebanon, Rwanda, and Sierra Leone were all established under the authority of U.N. Security Council resolutions, but as it turns out, there’s a long menu of other options for mixed tribunals that are merely established under agreements with the U.N.
One structural model for this could be the Special Tribunal for Cambodia, whose U.N. stamp of approval came from the General Assembly in 1999 because — sit down for this — China, the main sponsor of the Khmer Rouge and all its good works, threatened to veto a Security Council resolution establishing a tribunal to try its old comrades. The Cambodia tribunal was specifically designed “to circumvent a possible Chinese veto,” and it still managed to convict a few senior Khmer Rouge officials, eventually. It is a plausible alternative, to a point.
There are also some obstacles to this alternative. First, the Cambodia tribunal had to be established under the authority of … the government of Cambodia. That invariably introduced conflicts between the pursuit of justice and domestic political and pecuniary interests. The obvious analogue in the case of North Korea is South Korea, whose constitution claims jurisdiction over all of Korea. Given the number of hooks Pyongyang has put into domestic political and business interests in South Korea, however, it’s obvious that there would be strong opposition to this. Still, the words of South Korea’s Foreign Minister give some slender hope that his government might support it if pressured strongly enough:
South Korean Foreign Minister Yun Byung-se, in his speech at the U.N. human rights session early this month, proposed strengthening the role of the U.N. commission on North Korea’s human rights.
“For the international community, it is now time to begin the discussions on next steps to effectively follow up on the commission’s recommendations to improve the human rights situation in North Korea,” Yun said.
“In this vein, we strongly support the strengthening of the U.N. mechanisms to implement the commission’s recommendations. We also look forward to the leading role of the Special Rapporteur on the situation of human rights in North Korea,” Yun said. [Yonhap]
I wonder if Minister Yun ever contemplated that his own government might get stuck with leading that effort, rather than passively supporting a conception that would, despite Park Geun-Hye’s pro forma appeals, be stillborn into the U.N. bureaucracy. We may soon see just how sincere the South Korean really are, but I’m very skeptical of South Korea’s sincerity about most things. I’m guessing that the pressure would have to be overwhelming to force South Korea to host a tribunal. It’s also true that South Korea was initially lukewarm to the Commission of Inquiry, but was eventually pressured to support it. And now that the COI has issued a strong report, the big human rights groups that had made North Korea a third-tier issue for years are sufficiently interested in this issue today to bring it:
Campaigners want action. “The fact that these violations are now deemed to be crimes against humanity triggers the responsibility of the international community to respond,” Julie de Rivero of Human Rights Watch told Reuters. “It might be a long route but steps need to be taken.”
Roseann Rife of Amnesty International said in a statement: “This is the first real test of the international community to show it is serious about acting on the Commission of Inquiry’s chilling findings. There needs to a concerted effort to ratchet up the pressure on the North Korean government to address these systematic, widespread and grave human rights violations.” [Reuters]
One potential benefit of South Korea resisting pressure to establish a tribunal would be to expose that, for all of South Korea’s posturing about being our “blood ally” and a bulwark of democracy, it’s really buying Pyongyang off and propping up Kim Jong Un’s regime though projects like the heavily subsidized Kaesong Industrial Park. Because U.S. taxpayers subsidize so much of South Korea’s own defense, this amounts to indirect U.S. taxpayer support for Kim Jong Un’s regime. That revelation would at least help concentrate minds on this side of the Pacific.
In the short term, recalcitrance by the South Korean government could also expose a growing ideological gap between the Korean government and more conservative Korean-American voters, who are emerging as a domestic political force here in support of isolating North Korea financially.
This isn’t the only problem with the Cambodia model. The Cambodia tribunal turned out to be a procedural wreck, mostly because of personalities, domestic politics, and Cambodia’s legal environment. South Korea’s legal system is no paragon of due process, either, at least judging by my most recent experience with it, in 2002. Courts routinely admitted hearsay statements, legal representation was anemic, the rights to confrontation and cross-examination were virtually non-existent, witnesses were often intimidated by government investigators, and judges did not interpret the law and the evidence with rigor. If this leads to necessary reforms in the South Korean judicial system, the biggest winners would be the people of South Korea.
Finally, there’s the problem that eclipses all others — you can’t hold Kim Jong Un and his minions accountable if you can’t arrest them, although in absentia proceedings could draw significant publicity and effectively isolate North Korea’s worst abusers. The only events likely to cause a defendant to actually face justice would be events that pretermit due process in favor of revolutionary justice. But I can imagine greater injustices than that, including the status quo.
Michael Kirby believes that the pressure will eventually prevail.
But Michael Kirby, chief author of the report, said he was convinced North Korea’s leadership would eventually face the ICC for crimes documented in the commission’s archives, which hold the testimonies of hundreds of witnesses.
“I have lived long enough to see things that looked impossible come to full fruit,” Kirby said in a news conference.”The independence of East Timor, the independence of the Baltic states and other steps following the fall of the Berlin Wall are all indications that things can happen that don’t look certain now. They won’t meet media deadlines but they will occur.” [....]
“Contending with the scourges of Nazism, apartheid, the Khmer Rouge and other affronts required courage by great nations and ordinary human beings alike,” he said. “It is now your solemn duty to address the scourge of human rights violations and crimes against humanity in the Democratic People’s Republic of Korea.” [Joongang Ilbo]
This is quixotic, Sisyphean, and glorious. It convinces me that a tribunal is worth pursuing, if only in tandem with other alternatives. But if the COE report was the U.N.’s best moment since 1950, it’s soon going to lay bare the sunken footings of the U.N.’s utopian vision. When one despotic oligarchy stymies the U.N. from carrying out the purposes of its charter to shield its hegemony over another despotic oligarchy, the U.N. becomes irrelevant. Fine, then. Block duly checked. The civilized and accountable governments of the world could meet in Seoul, Bangkok, Prague, Taipei, or Gaborone (your choice) to unite around the economic isolation of North Korea’s regime, and the sanctioning of its foreign (read: Chinese) enablers into extinction.
So often, our setbacks are opportunities to adapt. We may have to adapt to this one by gradually rebuilding our international institutions around ad hoc international organizations and coalitions outside the U.N. framework, taking greater care this time to exclude all who mean to frustrate the common purpose.