Legal Implications of the U.N. Commission of Inquiry on North Korea

In March 2013, the United Nations established a Commission of Inquiry to examine the human rights situation in the Democratic People’s Republic of Korea, commonly known as North Korea. The outstanding Australian High Court judge Michael Kirby was appointed Chairman of the Commission. The Commission released its measured but harrowing report on February 17, 2014. The findings are reminiscent of atrocities perpetrated in Nazi Germany and in Soviet gulags.

In the absence of co-operation from North Korea, the Commission fulfilled its mandate with public hearings involving the testimony of victims, witnesses and experts: “More than 80 witnesses and experts testified publicly and provided information of great specificity, detail and relevance, sometimes in ways that required a significant degree of courage.” Additional evidence was of necessity confidential. Over 240 confidential interviews were held, primarily with former victims or officials who had fled the country but had family that remained. Fear of retaliation was palpable.

Enforcement of loyalty to the state and the consequences of failing to do so, are ingrained early on: “The DPRK operates an all-encompassing indoctrination machine which takes root from childhood to propagate an official personality cult and to manufacture absolute obedience to the Supreme Leader…State surveillance permeates the private life of all citizens to ensure that no expression critical of the political system or its leadership goes undetected.”

One arm of repression involves investigation detention centres, where “many suspects die as a result of torture, deliberate starvation or illnesses developed or aggravated by the terrible living conditions…At the end of the interrogation process, the victim is forced to attest to the accuracy of a confessional statement drawn up by the investigating agency by inking his fingerprint on the document. At the SSD (State Security Division), the same document also obligates the victim – under threat of severe reprisals- never to reveal any of the experiences in the investigation detention centre.”

A network of political prison camps exist and are estimated to hold 80,000-120,000 persons:

“If they are not executed immediately, persons held accountable for major political wrongs are forcibly disappeared to political prison camps that officially do not exist. Most victims are incarcerated for life, without chance of leaving the camps alive. Camp inmates are denied any contact with the outside world. Not even their closest family members receive any notification as to whether they are dead or alive…Mr. Ahn Myung-chol testified that in case of war, the guards were supposed to ‘wipe out’ all the inmates ‘to eliminate any evidence’ about the existence of the camps. Former guards from other camps and officials confidentially interviewed by the Commission were aware of the same order. Mr. Ahn and other witnesses also explained that specific plans exist on how to implement the order and that drills were held on how to kill large numbers of prisoners in a short period of time.” (Italics in original.)

The actions of state officials represent gross human rights violations that meet the legal standard for crimes against humanity. Under international law, this is defined as requiring (1) intentional inhumane acts that (2) form part of a widespread or systematic attack. The legal standard is a high one. The acts must entail “gross human rights violations of a scale and level of organization that shock the conscience of humanity.” The report states: “Based on the body of testimony and information received, the Commission finds that DPRK authorities have committed and are committing crimes against humanity in the political prison camps, including extermination, murder, enslavement, torture, imprisonment, rape and other grave sexual violence and persecution on political, religious and gender grounds.”

The actions reach the highest levels: “The Commission has received information directly indicating that the camp system is controlled from the highest level of the state. In some cases, the Commission was able to trace orders to cause the disappearance of individuals to the camps to the  level of the Supreme Leader. Moreover, the State Security Department, which decides whether to send individuals to the camps, is subject to the direction and close oversight of the Supreme Leader.”

Having found that crimes against humanity have been committed, the Commission was faced with the difficult task of determining how they can be prosecuted. There are two viable options, neither of which requires the consent of North Korea: (1) set up an ad hoc tribunal as was done in the case of the former Yugoslavia and Rwanda; or (2) arrange for a referral to be made to the International Criminal Court. The Court was established by the Rome Statute and came into existence on July 1, 2002. As North Korea is not a signatory to the Statute, the jurisdiction of the Court could occur by way of a referral from the U.N. Security Council.

Article 13(b) of the Rome Statute provides: “The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if (b) A situation arises in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.” In the absence of either one of these steps, perhaps due to a veto from a Security Council member, the Commission states the General Assembly may itself establish a Tribunal. This would be based on the power of member states to try perpetrators of crimes against humanity on principles of universal jurisdiction.

Whatever steps are ultimately taken, the Commission concludes with these stirring words directed squarely to the international community:

“The people of the Democratic People’s Republic of Korea have suffered too long. It is the responsibility of the international community to protect them from the depredations of their own government. The Commission finds that the international community must discharge its responsibility to protect by pursuing a multi-faceted strategy that combines strong accountability measures targeting those most responsible for crimes against humanity, reinforced human rights engagement with the authorities of the Democratic People’s Republic and support for incremental change based on people-to-people dialogue and an agenda for inter-Korean reconciliation.”

This moving document is at its heart a testament to the courage of the North Korean people. In the interests of our common humanity, one can only hope the efforts of the Commission will help pave the way for their freedom from unimaginable tyranny.