The best-case scenario for securing accountability would be for the case of North Korea to be referred by the Security Council of the United Nations, with it exceptionally exercising jurisdiction under the Rome statute, which sets up the International Criminal Court, to refer the file of North Korea to a prosecutor of the International Criminal Court.
The commission of inquiry was not a prosecutor. It was not a tribunal. It was not a judge. It was a fact-finder. We found matters on the basis of a reasonable reason to believe the truth of what we had heard on specified matters that should be considered by a prosecutor.
Then the prosecutor would make a prosecutorial discretion as to whether it should be referred on to a tribunal, and the most available, cheapest, already established, and independent such tribunal is the International Criminal Court. That would be, in the opinion of the commission of inquiry, the most speedy and effective way that the matter should progress, and that is why we made that recommendation.
But because North Korea is not a party to the Rome statute, it requires the exceptional decision of the Security Council to refer the case of North Korea to the prosecutor of the International Criminal Court. That has been done twice before, once in the case of Darfur, and secondly in the case of Gaddafi and Libya. Of course, Colonel Gaddafi was later killed in the course of the military operations, but the Security Council, during that very turbulent time, agreed, with the five permanent members either abstaining or voting for referral of Libya to the International Criminal Court.
There are those two precedents where the P5 did not stand in the way of the referral of the case to the International Criminal Court. That is what I hope will ultimately be done. We shouldn't be too pessimistic about the Security Council. People say to me that there's no way that China and the Russian Federation will take that course, but if you remember, in the case of the downing of the MH17 plane, that was a matter that was very close to the geopolitical concerns and interests of the Russian Federation.
But there's something about propinquity. When people are in a room and with the great responsibilities of the Security Council, often geopolitics will trump human rights, but sometimes, just being present with a world problem—and an undoubted world problem, which is portrayed in the report of the commission of inquiry—some solution will be made in some circumstances to refer the matter to the International Criminal Court. That has happened twice before, and I am still hopeful that it will be done in the case of North Korea.