Crimes against Humanity in North Korea: Domestic Jurisdiction or International Concern?
Crimes against humanity take place in North Korea. As the state is extremely isolated, it is debatable whether the Security Council should deal with the situation. Is it a matter of domestic jurisdiction or of international concern?
In the past week there have been two prominent news items concerning North Korea (Democratic People’s Republic of Korea - DPRK). The first reported the execution of North Korea’s Defence Minister by anti-aircraft fire, allegedly for taking a nap in Kim Jong-un’s presence. The second reported the cancellation by the North Korean authorities of a planned visit of UN Secretary-General Ban Ki-moon to a joint Korean industrial complex. The two occurrences, albeit not related, resemble the current situation of North Korea: an isolated state in which unprecedented atrocities take place.
These atrocities were extensively reported upon by the Commission of Inquiry on Human Rights in the DPRK (7 February 2014), (see also the contribution on accountability for those crimes by Catherina Hardwood to this blog). The commission, chaired by Michael Kirby, was not granted permission to enter North Korea and operated by interviewing witnesses that fled to other countries (e.g. South Korea; China did not grant access to the Commission). In order to try to avoid later methodological criticism by China and North Korea, the Commission decided to be as transparent as possible. It held public hearings, published video excerpts of witness reports and sent its final report to Kim Jong-un himself. The report states that systematic, widespread and grave violations of human rights have been and are still being committed based on state policy, which amount to crimes against humanity.
Since the issuance of the report, the Security Council has adopted two Resolutions on North Korea. Not on human rights violations, but on the proliferation of nuclear, chemical, and biological weapons, which it determines to be a threat to international peace and security (RES 2141 and RES 2207). Ten members of the Security Council (including permanent members France, the United Kingdom and the United States) have sent a letter to the President of the Security Council requesting that the human rights situation in North Korea be formally placed on the Council’s agenda without prejudice to the item on non-proliferation. The DPRK also sent a letter to the President of the Council, stating that “the so-called ‘human rights issue’ in the Democratic People’s Republic of Korea is politically fabricated and, therefore, it is not at all relevant to regional or international peace and security”. The request to place the human rights situation in the DPRK on the provisional agenda of the Council was voted upon (which is a rare occurrence) and adopted (23 December 2014), although strongly opposed by China who stated that the Security Council should strictly focus on its primary responsibility: the maintenance of international peace and security. Also Russia voted against the request.
From a strict historic interpretation of the UN Charter, China and North Korea are right. Article 39 of the UN Charter, which opens the door to binding decisions by the Security Council, requires a determination of at least a threat to international peace and security, which originally meant a threat of armed force between states. Seen from this perspective the Security Council should deal with nuclear proliferation, but not with domestic human rights situations.
Although article 39 is increasingly interpreted in a broad manner, almost all situations that have been considered to be a threat to international peace and security included an international element, for example a large flow of refugees. In the current situation in the DPRK such an international element is barely present: the state is extremely isolated, reliable news from North Korea is scarce (resulting in a lack of global public demand for action), and there is no large flow of refugees escaping the country.
From an evolutionary interpretation of the Charter, taking into account the intentions of the present members of the United Nations and interpreting the Charter in a way as to meet contemporary problems, the situation should be on the agenda of the Security Council. The support for the Responsibility to Protect within the United Nations (the concept was adopted by the General Assembly and affirmed by the Council), shows the readiness of the international community to protect civilians all over the world. It considers crimes against humanity as a matter that should be dealt with by the international community. From this perspective it is right that the situation in the DPRK is now on the agenda, not only of the General Assembly, but also of the Security Council.