The Commission of Inquiry Report
In March 2013, the UN Human Rights Council established a Commission of Inquiry (CoI) on Human Rights in North Korea; our discussion of the background and wide-ranging mandate of the CoI can be found here. On Monday, the CoI issued its report; the links to the report and supporting documents—including a 372-page catalogue of the evidence--are appended below.
Sadly, the substantive findings are not surprising, although the scope and forcefulness of their statement was. In his press conference on the release of the report, the CoI chairman, Australian jurist Michael Kirby, drew parallels between the North Korean gulag and the Nazi death camps.
But three more procedural conclusions will drive subsequent legal and diplomatic controversy: the finding that human rights abuses rise to the status of crimes against humanity; the related implication that individuals should be held accountable; and the invocation of the doctrine of the “responsibility to protect” and a long list of suggested actions.
We expect few of the suggested actions against North Korea to be taken, particularly its headline recommendation that the issue be referred to the International Criminal Court. Prior to the release of the report, the Chinese foreign ministry spokesman had already pre-empted any discussion of that option. But the report has clearly increased the visibility of the issues and is likely to set in train ongoing information-gathering processes. Above all, it raises the simple question: if this is not a circumstance in which to invoke the responsibility to protect, what is?
Crimes Against Humanity
While the CoI had the task of investigating “systematic, widespread and gross human rights violations,” it concludes that a number of these rise to the status of “crimes against humanity,” as defined under the Rome Statute. These crimes include “extermination, murder, enslavement, torture, imprisonment, rape, forced abortions and other sexual violence, persecution on political, religious, racial and gender grounds, the forcible transfer of populations, the enforced disappearance of persons and the inhumane act of knowingly causing prolonged starvation.” All future debates about human rights in North Korea will need to begin with this indictment.
The discussion of food was particularly noteworthy in our view. In an article we wish we had written, David Marcus offers an outstanding review of famine crimes in international law. My colleague Marc Noland reviewed the right to food in his testimony before the CoI. But the report goes farther, noting how food is used as an instrument of political control while at the same time favored groups are prioritized in its distribution. That these practices should now be viewed through the lens of crimes against humanity is noteworthy.
The finding with respect to crimes against humanity is important because they imply individual culpability. Although the report does not provide a list of those responsible, it does provide a list of entities that were involved in these crimes:
“The main perpetrators are officials of the State Security Department, the Ministry of People’s Security, the Korean People’s Army, the Office of the Public Prosecutor, the judiciary and the Workers’ Party of Korea, who are acting under the effective control of the central organs of the Workers’ Party of Korea, the National Defence Commission and the Supreme Leader of the Democratic People’s Republic of Korea.”
It also notes that “aiding and abetting” of crimes against humanity is itself a crime, expanding the scope of those who are potentially culpable. In his press conference, Kirby speculates that those who are guilty could number in the hundreds.
Most explosively, the report notes that the highly centralized nature of the political system suggests accountability of the leadership, including Kim Jong Un himself. The Commission concludes its extraordinary letter to Kim Jong Un by noting that “any official of the DPRK who commits, orders, solicits or aids and abets crimes against humanity incurs criminal responsibility by international law and must be held accountable under that law.”
The Responsibility to Protect: Now What?
A third major conclusion concerns what should and can be done about it. The emerging doctrine of “responsibility to protect” suggests not simply that North Korean authorities should cease and desist but that the international community has particular legal obligations to act in the face of crimes against humanity and other violations of the Rome Statute. The recommendations section of the report lists a host of actions that might be taken and they are worth cataloguing to provide a menu that will drive the debate:
- The headline finding was that “the Security Council should refer the situation in the Democratic People’s Republic of Korea to the International Criminal Court for action in accordance with that court’s jurisdiction.” Kirby repeatedly returned to the fact that the CoI is not a prosecutorial body, but that its findings could be relevant for an indictment. The ICC indicts when a Pre-Trial Chamber issues either an arrest warrant or a summons after it finds that there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; it can then subsequently issue an arrest warrant where it appears necessary "to ensure the person's appearance at trial, to ensure that the person does not obstruct or endanger the investigation or the court proceedings, or…to prevent the person from continuing with the commission of that crime.” The ICC has issued about 35 indictments to date, including several of sitting (Omar al-Bashir) or former (Laurent Gbago) heads of state. To say that such an indictment is unlikely would be an understatement, but that it is even being raised is stunning.
- The Security Council should adopt targeted sanctions against those who appear to be most responsible for crimes against humanity. Even if the Security Council fails to act, this is a measure that democratic countries might be pushed to consider.
- The United Nations High Commissioner for Human Rights should establish a structure to ensure accountability, particularly by continuing to collect information that may be relevant for any criminal indictment.
- The UN system should adopt a “Rights Up Front” policy toward all interactions with the DPRK—presumably including food assistance through the WFP—and the High Commissioner should continue to advocate for reforms and to offer technical assistance.
- The five parties to the Six Party Talks should form a human rights contact group.
- NGO work on North Korea should be actively encouraged, including broadcasting into the country.
The report also ventures into high political terrain by calling for the initiation of a peace process to replace the armistice; it also offers reminders that nothing in the report should impede the timely provision of humanitarian assistance.
What will actually occur? The more ambitious suggestions will stall out around Chinese objections. Before the report was even issued, China’s foreign ministry spokeswoman honed in on the accountability question:
“China maintains that differences in human rights should be handled through constructive dialogue and cooperation on the basis of equality and mutual respect. To bring human right issues to the International Criminal Court does not help improve a country's human rights conditions."
But this is not the only sensitive subject for China, and it is likely to face new pressure--and should--on its unlawful return of refugees. As the report documents, these refugees are subject to abuses in which China must be seen as complicit.
We can certainly imagine support for ongoing documentation as a compromise; Roberta Cohen offers a cogent review that we discussed in a recent overview of current human rights thinking on North Korea. The interesting challenge to the UN has to do with its more routine actions vis-à-vis North Korea, such as through the Office for the Coordination of Humanitarian Affairs and specialized agencies such as the World Food Program. What would a “Rights Up Front” policy mean operationally for these entities?
Perhaps the most important question is how North and South Korea will respond. North Korea could treat the Commission report as it has treated other UN actions--as an excuse to act out—or it could issue a more routine denial (which it quickly did). It is not impossible that it will see the report as an excuse to continue the internal crackdown which has been taking place since the death of Kim Jong Il, particularly with respect to the border.
The report puts South Korean in an awkward position. The Park administration has sought to maintain what it calls a “principled” approach with respect to the nuclear and human rights issues while also practically engaging on humanitarian exchanges.
Nonetheless, it is far too cynical to say that the report will have no effect. The catalogue now on offer in the “detailed findings” portion of the report will take days for us to wade through, but it is pretty difficult to ignore as it collates the full spectrum of abuses and their systemic nature. The report will be formally presented to the Human Rights Council in a month; in the interim, there is going to be a lot of discussion among the democratic members of the Council about strategy. It strikes us as implausible that the Council will receive a report of such breadth and depth and choose to do nothing; at a minimum, the UN system is likely to consider its relations with the country. At a maximum, the report could put new pressure on governments to reconsider their relations; Europe will be pivotal to watch in this regard. As implausible as it may sound, we hope the UN issues a forceful restatement of its interest in holding a serious human rights dialogue with North Korea on the most egregious issues, starting with the prison camps.
- The press release on the report can be read here.
- The full report, as well as a second document of the “detailed findings,” are here.
- The press conference with members of the Commission of Inquiry can be watched on UNTV here.
- The full video recording of the public hearings can be found here.