By consensus, the Human Rights Council of the United Nations has established a commission of inquiry into the human rights situation in North Korea (the resolution and background documents can be found here).
With respect to the substance of the investigation, the agenda was set by the Special Rapporteur’s report, which we looked at in some detail. According to the Special Rapporteur, there is now enough information in the public domain to see clear patterns of human rights violations, some of which are “grave” and committed in a “systematic” manner. The report singled out nine discrete areas that violate international human rights law, including treaties to which North Korea is a party. These areas, which are reiterated in the resolution, will set the agenda of the commission’s work:
- Violation of the right to food, including restrictions on the operation of humanitarian agencies in the country;
- Torture and other cruel, inhuman and degrading treatment or punishment;
- Arbitrary detention and general inattention to the rights of the accused;
- Violations of human rights associated with prison camps;
- Discrimination and the disproportionate or specific effect of human rights violations on vulnerable groups, in particular women, children, people living with disabilities and returnees as well as those deemed politically suspect;
- Extensive violation of freedom of expression and other related freedoms;
- Violation of the right to life, in particular the abusive application of the death penalty and the use of public executions;
- Restrictions on freedom of movement and abusive treatment of citizens forcibly returned;
- Enforced disappearances, including in the form of abductions of foreign nationals (a bow to both Japanese and South Korean concerns.
A significant passage of the Human Rights Council document states that the purpose of the commission is “ensuring full accountability, in particular where these violations may amount to crimes against humanity.” The idea that crimes against humanity should be approached through the lens of individual culpability is an important innovation of the postwar era. According to the Rome Statute, murder, unlawful imprisonment, torture, sexual violence and disappearance can be considered such crimes when part of “a widespread or systematic attack” against the civilian population. The fact that UN officials are suggesting that the dots be connected—that crimes be attached to the actions of individuals, whom in principle could be brought to justice—is striking.
With respect to procedure, the commission of inquiry will consist of three members, one of whom will be the Special Rapporteur with the other two members appointed by the President of the Human Rights Council. Some friends in the human rights committee have complained privately that they would prefer an independent body, on the grounds that insiders may be too cautious. But the report specifically urges the commission to cast a wide net and reach out to “interested institutions and independent experts and non-governmental organizations; we now have dozens of organizations working on the issue, many of which have devoted their efforts to collecting and cataloguing information. We can assure you that we will be doing our bit, probably with respect to the food economy
The Human Rights Council calls on North Korea to cooperate with the commission and with the Special Rapporteur. Needless to say, this is not going to happen. Indeed, the commission will be read in Pyongyang as more piling on by the hostile forces; a Foreign Ministry statement rejected the whole effort as a charade of the imperialists, “driven into a tight corner by a series of setbacks sustained by it in the political and military confrontation with the DPRK.”
The call for the commission was sponsored by a substantial group of largely advanced industrial states (see below). But it was adopted by consensus on the council itself, which has a membership set by regional quotas (membership also listed below). As we noted in an earlier post, North Korea is increasingly isolated on the human rights issue at the UN; votes on their behalf (voting “no,” abstaining or not showing up) have fallen steadily.
Skeptics will ask what purpose such an exercise serves. What game are we playing here? Commissions of inquiry have a checkered history, with a number involving Israel generating significant controversy (Academic Platform Switzerland UN has a great brief on such commissions, in pdf here.) . We are not expecting the indictment of Kim Jong Un at any time soon, but we see at least four advantages of moving ahead.
First, we found it interesting that the North Koreans felt compelled to respond, even if they claimed that the resolution was not worthy of response. Somewhere, someone in North Korea is reading a statement by the Foreign Ministry saying that North Korea does not have a human rights problem. As cynicism rises, such statements are rightly interpreted as implying the opposite. We should not overestimate the ability of the North Korean government to screen out bad press.
Second, the commission will galvanize organizations working on the issue, and give their activities a boost, including with respect to refugees.
Third, the action has diplomatic effect. Its hard for the DPRK to say that a resolution passed with Venezuelan support is a cabal of the imperialists; North Korea is increasingly identified with other states and conflicts with commissions of inquiry, such as Syria or Darfur.
Finally, if we are going to have international crimes as we now do under the Rome Statute it is important that allegations of them be investigated and treated with the seriousness they deserve. Building international law is a function of practice, and commissions of inquiry can contribute to that practice.
As always, Roberta Cohen offers particularly thoughtful commentary on 38North. One of her main points is that the commission will need to move from its findings to a concrete plan. Since we can’t put it better, we will end by just quoting her on what might be done:
“A strategic plan should be developed and led by the Secretary-General together with the High Commissioner for Human Rights. It should have definite goals like achieving a dialogue with North Korea; disseminating to its schools, government offices and institutions Korean translations of the Universal Declaration of Human Rights; gaining international access to the penal labor camps; bringing an end to the prison system and forced labor; and allowing freedom of movement for North Koreans across borders. A strategic plan would bring together the myriad UN offices and agencies involved with North Korea, including the UN High Commissioner for Refugees, the UN Development Program, the International Labor Organization, the UN Department of Public Information, UNESCO, the World Food Program and other humanitarian organizations so that the entire system can be tapped and work together. Humanitarian groups in particular should be consulted about causes of starvation in the country and access to those in need.”
Sponsors of the draft statement (* currently not a member of the Human Rights Council).
Australia*, Austria, Belgium*, Bosnia and Herzegovina*, Bulgaria*, Canada*, Croatia*, Cyprus*, Czech Republic, Denmark*, Estonia, Finland*, France*, Georgia*, Germany, Greece*, Hungary*, Iceland*, Ireland (on behalf of the European Union), Italy, Japan, Latvia*, Liechtenstein*, Lithuania*, Luxembourg*, Malta*, Monaco*, Montenegro, Netherlands*, New Zealand*, Norway*, Poland, Portugal*, Romania, Saint Kitts and Nevis*, Slovakia*, Slovenia*, Spain, Sweden*, Switzerland, the former Yugoslav Republic of Macedonia*, Turkey*, United Kingdom of Great Britain and Northern Ireland*, United States of America.
Members of the Human Rights Council
The Council’s Membership is based on geographical distribution: 13 African members, 13 Asian members, 8 from Latin America and the Caribbean, 7 from Western Europe and 6 from Eastern Europe. Current members are:
Angola, Argentina, Austria, Benin, Botswana, Brazil, Burkina Faso, Chile, Congo, Costa Rica, Côte d'Ivoire, Czech Republic, Ecuador, Estonia, Ethiopia, Gabon, Germany, Guatemala, India, Indonesia, Ireland, Italy, Japan, Kazakhstan, Kenya, Kuwait, Libya, Malaysia, Maldives, Mauritania, Montenegro, Pakistan, Peru, Philippines, Poland, Qatar, Republic of Korea, Republic of Moldova, Romania, Sierra Leone, Spain, Switzerland, Thailand, Uganda, United Arab Emirates, United States of America, Venezuela