By David Bosco
The members of the United Nations’ Commission of Inquiry on North Korea have been making the rounds in Washington this week. Led by former Australian judge Michael Kirby, the commission has had a notable impact. Its report, which called for the Security Council to refer the North Korean situation to the International Criminal Court, generated significant diplomatic and media attention. In lopsided votes, the UN Human Rights Council and the UN General Assembly endorsed its recommendation. For the first time ever, the UN Security Council placed the issue of North Korean human rights on its agenda. Perhaps most important, the commission’s work generated howls of outrage from North Korea itself.
The question of where all this energy and attention goes now is an important one. The commission’s mandate has expired. The door to the International Criminal Court appears to be blocked; referring the North Korean situation would require a Security Council resolution, a step that China and Russia would almost certainly block. Absent dramatic political change, the commission appears to have exhausted the routes to accountability for the crimes it describes.
There is one avenue left, however, that has received little attention. The UN General Assembly–and other parts of the UN system— have the power to request advisory opinions from The Hague-based International Court of Justice (ICJ). The General Assembly has done so several times, including on the legality of Kosovo’s independence declaration and Israel’s separation wall. Because the veto does not operate in the Assembly, no one state could block a request. The ICJ opinions that result from this process are technically non-binding, but they can be highly influential. Most important in this context, an ICJ advisory case would be a means of maintaining pressure on North Korea. Various states, international organizations, and civil society groups could file briefs with the court, which might help to develop and deepen the factual record on North Korean abuses.
An ICJ approach to North Korean abuses might have another advantage. In the last several decades, the focus of human rights and justice advocates has been almost exclusively on individual, rather than state, accountability. While powerful, this approach has its limits. An ICJ case that focused on the culpability of the North Korean regime as a whole, rather than on any one of its senior officials, could be a useful return to a more balanced approach to accountability.