Why a North Korea ICC Case is Not as Far Fetched As You Might Think

The details contained in the just-released UN Human Rights Council’s Commission of Inquiry’s report on North Korea are heartbreaking: A mother forced to kill her newborn; political prisoners forced to eat grass; a regime that uses the threat of starvation to control and coerce a population.

The details are shocking, but everyone always knew that the human rights situation in North Korea was abominable. What is new and significant about this report is that it is the first time that an official UN body compiled evidence of massive and ongoing crimes against humanity in North Korea. That carries political weight, as does the fact that the resolution authorizing an investigation of North Korea was passed unanimously by the 44 member council. This is precisely the sort of action the Human Rights Council was designed to undertake.

The report recommends that the Security Council refer the situation to the International Criminal Court. The conventional wisdom, so far, is that this is a non-starter because China would block such a resolution because of its close relationship with DPRK.  I’m not so sure. In fact, there is precedent for China to allow the ICC to investigate an ally and commercial partner.

In March 2005, China abstained from a Security Council resolution giving the prosecutor of the International Criminal Court jurisdiction to investigate alleged crimes against humanity in the Darfur region of Sudan. The alleged perpetrators of these crimes were the government of Sudan and militias backed by the Sudanese army. At the time, Sudan was a major trading partner with a energy-hungry China.  (Some 6% of all of Chinese oil imports came from Sudan.)  The ICC would eventually indict Sudanese president and several top government officials for crimes against humanity and genocide, which is an outcome the Chinese surely foresaw.

China’s decision to not veto an ICC referral for Sudan is evidence that China is neither implacably opposed to the ICC, nor opposed to the ICC meddling in the domestic affairs of a country that China has an interest in keeping stable.  To be sure, China is not the only country on the Security Council that has made human rights in North Korea a secondary concern. The United States, for one, has historically prioritized curbing North Korea’s nuclear program over humanitarian and human rights concerns. In 2011 the USA even withheld food aid to North Korea pending progress on the nuclear front.

This report from the Human Rights Council may change that equation and make it politically much more difficult for western countries on the Security Council to de-emphasize human rights in DPRK.  If the other western members of the Council and Russia get on board, China may change its calculations. China strenuously avoids being isolated at the Security Council and rarely casts sole vetoes.

It may take a while, but is not out of the realm of possibility that China may abstain from a Security Council resolution granting the ICC jurisdiction in North Korea, letting the measure pass. It has happened before.

 Image credit: Drawings of abuse from former captives in DPRK. Via the Commission of Inquiry