Disturbing Findings of the North Korea Commission of Inquiry

The Commission of Inquiry (COI) focused on the Democratic People’s Republic of Korea (DPRK) released its first report this week.  The report is a monumental depiction of the prolonged human rights catastrophe that is North Korea.  Its conclusions are worse even than many imagined.  This post will discuss the COI’s origins, mandate, and conclusions.  A subsequent post will examine the prospects of accountability for the pervasive crimes being committed in North Korea.

Background

By way of background, the Human Rights Council established the COI in March 2013 with resolution 22/13 for the purpose of “investigating the systematic, widespread and grave violations of human rights” in the state “with a view to ensuring full accountability, in particular, for violations that may amount to crimes against humanity.”  The United States co-sponsored the resolution, along with European Union, Japan, and the Republic of Korea.  The DPRK COI joins a number of other investigative commissions that have been established under United Nations auspices, for example through the Security Council (SC), Secretary-General (SYG), Office of the High Commissioner for Human Rights (OHCHR), General Assembly (GA), and Human Rights Council (HRC).  (In 2008, the European Union also established a COI following allegations of violations of humanitarian law during the five-day war between Russia and Georgia in South Ossetia.)  As was the case with respect to the DPRK (which indicated it “totally and categorically rejects the commission of inquiry”), these commissions are regularly established without the target state’s consent or cooperation.  At other times (such as with respect to Côte d’Ivoire and Bahrain), the target state invites the formation of the Commission and/or provides staff and other forms of support.

COIs can be established to investigate situations in which violations and abuses are ongoing—as happened with respect to Darfur, Syria, and Libya—or they can investigate discrete incidents, such as an assassination (e.g., the 2007 murder of Prime Minister of Pakistan Benazir Bhutto) or violence associated with a single incident (e.g., the Commission created to examine a 2009 massacre in Guinea) or military operation (e.g., the controversial COI established to examine Operation Cast Lead in the Occupied Territories).  All told several dozens of COIs have been established over the years with varying mandates to investigate human rights violations and abuses, make legal determinations as to the commission of international crimes, and identify responsible individuals.

The 3-person DPRK COI consists of:

  • Marzuki Darusman, the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea (a post created in 2004) who also served on the Bhutto COI and the Sri Lanka Panel of Experts;
  • Former Justice of the High Court of Australia, Michael Donald Kirby (the COI chair); and
  • Sonja Biserko, founder of the Helsinki Committee for Human Rights of Serbia.

A team of nine human rights experts from the OHCHR comprises the Secretariat of the Commission.

Findings

The DPRK COI catalogued a whole range of human rights violations attributable to the state, its agents, and its instrumentalities including:

1. Violations of the right to food:

The rights to food, freedom from hunger and to life in the context of the Democratic People’s Republic of Korea cannot be reduced to a narrow discussion of food shortages and access to a commodity. The State has used food as a means of control over the population. … The commission found evidence of systematic, widespread and grave violations of the right to food in the Democratic People’s Republic of Korea. While acknowledging the impact of factors beyond State control over the food situation, the commission finds that decisions, actions and omissions by the State and its leadership caused the death of at least hundreds of thousands of people and inflicted permanent physical and psychological injuries on those who survived.

2. A range of violations associated with political and ordinary prison camps, which are populated through the arbitrary arrest and detention of individuals perceived to be enemies of the state:

The unspeakable atrocities that are being committed against inmates of the kwanliso political prison camps resemble the horrors of camps that totalitarian States established during the twentieth century. … Gross human rights violations in the Democratic People’s Republic of Korea involving detention, executions and disappearances are characterized by a high degree of centralized coordination between different parts of the extensive security apparatus.

3. Torture and inhuman treatment: “The use of torture is an established feature of the interrogation process in the Democratic People’s Republic of Korea, especially in cases involving political crimes.”

4. Discrimination (the systemic denial of basic human rights and fundamental freedoms): “Discrimination is rooted in the songbun system, which classifies people on the basis of State-assigned social class and birth, and also includes consideration of political opinions and religion. Songbun intersects with gender-based discrimination, which is equally pervasive.”

5. Violations of the freedom of expression: “The commission finds that there is an almost complete denial of the right to freedom of thought, conscience and religion, as well as of the rights to freedom of opinion, expression, information and association. “

6. Violations of the right to life: “As a matter of State policy, the authorities carry out executions, with or without trial, publicly or secretly, in response to political and other crimes that are often not among the most serious crimes.”

7. Enforced disappearances, including the abduction of nationals of other States

Persons who are found to have engaged in major political crimes are “disappeared”, without trial or judicial order, to political prison camps (kwanliso). There, they are incarcerated and held incommunicado. … Since 1950, the Democratic People’s Republic of Korea has engaged in the systematic abduction, denial of repatriation and subsequent enforced disappearance of persons from other countries on a large scale and as a matter of State policy.

Crimes Against Humanity

The COI was specifically mandated to determine the legal question of whether the situation in North Korea rises to the level of crimes against humanity.  Crimes against humanity—which trace their jurisprudential origins to the World War II era—are a constellation of acts made criminal under international law when they are committed within the context of a widespread or systematic attack against a civilian population.  In carrying out this aspect of its mandate, the COI relied on the definition of crimes against humanity contained in the Rome Statute of the International Criminal Court (ICC).  The Commission concluded that:

the body of testimony and other information it received establishes that crimes against humanity have been committed in the Democratic People’s Republic of Korea, pursuant to policies established at the highest level of the State.

In particular, it found that acts of extermination, murder, enslavement, torture, imprisonment, rape and other grave sexual violence, and persecution on political, religious and gender grounds—all enumerated crimes against humanity—are regularly being committed against six sectors of the civilian population:

  1. inmates of political prison camps;
  2. inmates of the ordinary prison system;
  3. religious believers and other perceived “subversives”;
  4. persons who try to flee the country;
  5. communities subject to starvation; and
  6. persons abducted from other countries.

The Commission’s treatment of starvation as a modality for committing the crimes against humanity of extermination and murder is particularly innovative.  It specifically noted:

The State has led a systematic and widespread attack against the general population by knowingly aggravating its starvation and sacrificing the lives of large numbers of innocent, ordinary citizens in order to preserve the political system and its leadership.

Even in the ordinary prison camps, where the goal is not necessarily to work detainees to death, the COI noted that adequate food and medical care are deliberately withheld “despite awareness that they will cause the death of a large portion of the prison population in the ordinary course of events.”  In this regard, the COI noted that situations in which large numbers of people are not killed outright but are rather subjected to adverse conditions of life calculated to bring about their destruction can constitute the crime against humanity of extermination.  This finding is consistent with Article 7(2)(b) of the ICC Statute, which states that extermination

includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.

The COI also highlighted the pervasive commission of many forms of sexual violence, including against detainees and women who attempt to flee the country.  The practice of forced abortion was specifically highlighted:

[R]epatriated women who become pregnant while in China are subject to forced abortion. This amounts to sexual violence of a gravity that meets the threshold of crimes against humanity. The forced abortions imposed on repatriated and detained women generally also constitute torture. In cases of infanticide, the crime of murder is being committed.

Finally, the practice of forced labor was deemed to constitute the crime against humanity of enslavement—“the exercise of any or all of the powers ordinarily attaching to the right of ownership over a person.

China

The Commission also addressed the role that China plays on the peninsula.  It found that in forcibly repatriating North Korean nationals, including trafficked women, China is in violation of its non-refoulement obligations.  It called upon China, which is a party to the 1951 Refugee Convention and its 1967 Protocol, to provide the United Nations High Commissioner for Refugees (UNHCR) and other humanitarian organizations unimpeded access to persons hailing from North Korea who are willing to speak with such organizations.  China was also encouraged to regularize:

the status of women and men from the Democratic People’s Republic of Korea who marry or have a child with a Chinese citizen; and ensure that all such children may realize their rights to birth registration and Chinese nationality where applicable, and have access to education and health care without discrimination…

China, which declined to cooperate with the Commission in any meaningful way, has consistently argued that all North Korean citizens who enter China unlawfully constitute economic migrants, do not qualify as “refugees” under international law, i.e., as individuals fleeing a well-founded fear of persecution on religious, political, or other grounds.  As such, China insists that it owes no non-refoulement obligations toward these individuals.

Responsibility to Protect

In its conclusions, the COI also invoked the international community’s Responsibility to Protect (R2P), particularly given the history of the international involvement on the peninsula:

 The international community must accept its responsibility to protect the people of the Democratic People’s Republic of Korea from crimes against humanity, because the Government of the Democratic People’s Republic of Korea has manifestly failed to do so. In particular, this responsibility must be accepted in the light of the role played by the international community (and by the great powers in particular) in the division of the Korean peninsula and because of the unresolved legacy of the Korean War.

Our readers will recall that according to Secretary General Ban Ki-Moon’s helpful formulation of R2P, the first pillar of the doctrine identifies the responsibility of all states to protect their own populations from genocide, war crimes, ethnic cleansing, and crimes against humanity (and the incitement thereto).  The second pillar of the doctrine engages the responsibility of the international community to undertake peaceful collective action to help states fulfill their responsibilities to protect, including through diplomacy, concerted long-term capacity-building efforts, and technology transfer.  The manifest unwillingness of the government of North Korea to adhere to its own protective responsibilities or to accept help from the international community triggers pillar 3 of the doctrine, which according to the 2005 World Summit Outcome Document states that

The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity [and must be] prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

Part II of this post will consider the prospects for accountability in light the pervasive commission of crimes against humanity in North Korea. 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Follow her on Twitter (@BethVanSchaack).