An earlier post addressed the origins, mandate, and results of the Human Rights Council’s Commission of Inquiry dedicated to examining the commission of crimes against humanity and other human rights violations by agents and instrumentalities of the Democratic People’s Republic of Korea (DPRK, a.k.a. North Korea). In this post, I will address prospects for accountability, particularly given that the COI was to undertake its investigation
with a view to ensuring full accountability, in particular, for violations that may amount to crimes against humanity.
Standard of Proof
Commissions of Inquiry (COIs) and other investigative mechanisms operate according to varied standards of proof. Most COIs adopt a standard of proof that is less rigorous than a criminal trial, which in the United States requires proof “beyond a reasonable doubt.” The goal is usually to compile a reliable body of probative material tending to show that violations are occurring or did occur, the circumstances in which an event transpired, and/or the individuals or entities that are reasonably suspected of being responsible. So, for example, the Panel of Experts (POE) formed by the U.N. Secretary General to advise him on the modalities and international standards for ensuring accountability for the alleged violations of international humanitarian and human rights law committed during the final stages of the armed conflict in Sri Lanka announced that it was guided by the following standard: was there a “reasonable basis to believe that the underlying act or event occurred?” The POE determined that this showing was enough to trigger Sri Lanka’s responsibility to further investigate the acts alleged. Similarly, the DPRK COI based its findings on a “reasonable grounds” standard of proof. Thus, the COI indicated that it would conclude that:
there are reasonable grounds establishing that an incident or pattern of conduct had occurred whenever it was satisfied that it had obtained a reliable body of information, consistent with other material, based on which a reasonable and ordinarily prudent person would have reason to believe that such an incident or pattern of conduct had occurred.
COIs and Accountability
COIs have at times led to more robust individual accountability measures, including criminal trials. For example, the COI established to investigate the assassination of former Lebanese Prime Minister Rafiq Hariri and related terrorist acts led to the creation of the Special Tribunal for Lebanon (STL). The COI was basically folded into the STL’s prosecutorial office. Likewise, the U.N. Security Council in 2004 established an International Commission of Inquiry on Darfur to
investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties, to determine also whether or not acts of genocide have occurred, and to identify the perpetrators of such violations with a view to ensuring that those responsible are held accountable.
Soon thereafter, the Security Council with Resolution 1593 referred the situation in Darfur to the Prosecutor of the International Criminal Court. (The United States and China abstained from this resolution, enabling the commencement of an investigation). Although the COI (controversially) determined that the violence did not rise to the level of genocide because there was insufficient evidence of a state policy evincing genocidal intent, the ICC ultimately charged President Omar Al-Bashir with genocide in Darfur.
At other times, COIs operate as a substitute for more robust accountability measures. At one end of the spectrum, some investigative bodies (such as the U.N. truth commission for El Salvador) go so far as to publicly “name names” of implicated individuals. Others will generate this information, but keep it confidential. The Syria COI, for example, has produced a list of names that the OHCHR filed under seal (to preserve the presumption of innocence) until they can be used by international or national authorities for credible investigations and possible prosecutions. In the alternative, COIs can identify only the entities, security forces, armed groups, or government agencies that are responsible. At the other end of the spectrum, COIs can concentrate on documenting the patterns of violations and abuses and subjecting the violence to legal analysis.
The content and breadth of the final report and conclusions generally depends on the COI’s terms of reference, although at times COIs will push or retreat from these boundaries. For example, the report of the COI for Darfur contained a classified annex of responsible individuals even though this was not specifically called for by the Security Council; by contrast, the Kyrgyzstan Inquiry Commission was empowered to name names, but it declined to do so, stating that it was not equipped to conduct a criminal investigation, had a limited time frame to complete its work, and had minimal investigative capacities with no subpoena power. The Guinea COI report named names, indicating that there was “prima facie evidence” of individual criminal responsibility. It did not articulate the operative standard of proof or the evidentiary principles it applied, raising some potential due process concerns.
The DPRK COI & Accountability
The DPRK COI was specifically mandated to consider options for accountability. In this regard, it made two broad recommendations: the Security Council should refer the situation in North Korea to the International Criminal Court (ICC) and the U.N. High Commissioner for Human Rights should establish an accountability mechanism for North Korea. With respect to the ICC, the COI concluded:
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.
In addition, the COI recommended the establishment of alternative accountability mechanisms. Specifically:
[t]he United Nations High Commissioner for Human Rights, with full support from the Human Rights Council and the General Assembly, should establish a structure to help to ensure accountability for human rights violations in the Democratic People’s Republic of Korea, in particular where such violations amount to crimes against humanity. The structure should build on the collection of evidence and documentation work of the commission, and further expand its database.
Finally, the COI recommended a program of targeted sanctions:
The Security Council should also adopt targeted sanctions against those who appear to be most responsible for crimes against humanity. In the light of the dire social and economic situation of the general population, the commission does not support sanctions imposed by the Security Council or introduced bilaterally that are targeted against the population or the economy as a whole…
The Commission clearly thinks individual criminal responsibility reaches the highest of levels in the state. Indeed, it shared its findings with the DPRK Government, including via a letter addressed to the Supreme Leader, Kim Jong-un. The letter quite forcefully drew attention to the principle of superior responsibility under international criminal law by which an individual superior may be held liable for crimes committed by subordinates under his or her effective control when the superior has actual or constructive knowledge of such abuses and fails to prevent the acts or punish the perpetrators.
The DPRK COI made clear that in carrying out its mandate, it could not make final determinations of individual criminal responsibility because is neither a judicial body nor a prosecutor. That said, it indicated that it could determine that its findings established reasonable grounds to conclude that crimes against humanity were committed so as to merit a criminal investigation by a competent national or international organ of justice. It has also compiled a confidential database concerning responsible individuals.
North Korea and the ICC
To a certain degree, the situation in North Korea is already the subject of consideration by the ICC’s Office of the Prosecutor (OTP). The Republic of Korea (ROK, a.k.a. South Korea) joined the ICC in 2002. After receiving a number of communications regarding the commission of crimes by DPRK agents and instrumentalities on South Korean territory (mostly concerned with the 2010 sinking of the Choenan warship (effective ROK territory) and the 2010 shelling of Yeonpyeong Island), the Office of the Prosecutor in December 2010 opened a preliminary examination regarding crimes committed on the territory of South Korea. A preliminary examination is focused on whether a situation warrants investigation given
- the jurisdictional requirements (whether there is temporal and subject matter jurisdiction and whether the jurisdictional preconditions have been met),
- admissibility (which considers gravity and complementarity), and
- the interests of justice (which is a countervailing factor).
According to the OTP’s most recent report on its preliminary examinations, the situation in South Korea is currently in the first substantive phase of this analysis (jurisdiction). This involves a consideration of such questions as
- whether there is still an armed conflict in the region (or a renewed conflict) that would serve as the necessary predicate for a finding that war crimes had been committed,
- whether an attack on a warship can constitute a war crime (e.g., perhaps a treacherous killing), and
- whether there has been a widespread or systematic attack against a civilian population, which is an essential element of crimes against humanity.
Absent a Security Council referral, the ICC can exercise its jurisdiction only over crimes committed on South Korean territory (or by South Korean nationals); the ICC does not exercise “passive personality” jurisdiction, which is to say jurisdiction that is premised on the nationality of the victim. So, crimes committed in North Korea against individuals of South Korean ancestry cannot come before the Court unless there is a territorial nexus to an ICC state party (or a Security Council referral). This jurisdictional hook exists with respect to some of the human rights violations found by the COI, which documented instances of individuals being abducted from a number of ICC states parties—including South Korea, Japan, Germany, and elsewhere in Europe—and effectively disappeared. Although many of these abductions occurred prior to the entry into force of the ICC (e.g., the 80,000-100,000 abductions committed during the Korean War and its aftermath), the fact that many amounted to disappearances—a continuing crime—may ultimately be deemed to satisfy temporal jurisdiction.
A Security Council referral can, of course, override the jurisdictional preconditions necessary for a State Party referral or proprio motu investigation, except perhaps with respect to temporal jurisdiction. The entire situation in North Korea, including crimes committed on North Korean territory against citizens of North Korea, could thus be referred to the Court if the Council were so inclined…