Presented at the Fletcher School of Law and Diplomacy, April 2, 2013
North Korea is best known internationally for its nuclear weapons tests, rocket launches and provocative threats, and also for the chronic hunger and malnutrition of most of its population. Less publicized have been its widespread, systematic and grave human rights violations. But on March 21, the United Nations Human Rights Council, a 47 member body, took an important step. It established a commission of inquiry into North Korea’s human rights violations to determine the extent to which they amount to crimes against humanity and with a view to promoting accountability. As you know, crimes against humanity defined by the Rome Statute of the International Criminal Court are among the most serious human rights violations, comprising murder, enslavement, unlawful imprisonment, torture, persecution, sexual violence and enforced disappearances -- when committed as part of a widespread or systematic attack against the civilian population. The commission of inquiry specifically will look into violations associated with North Korea’s penal labor camps (in which 150,000 to 200,000 political prisoners are incarcerated), North Korea’s abductions of thousands of foreigners, its denial of free movement – most North Koreans cannot get permission to leave their country, its discrimination on political and religious grounds, and the denial of the right to food -- North Korea’s military first policy and its relationship to mass starvation. The commission will be composed of three independent experts and will cooperate with UN agencies and experts, interested institutions, regional intergovernmental bodies and NGOs. Its work will take place over the period of one year.
What is the significance of the setting up of a commission of inquiry? It is recognition by the international community that there is a human rights emergency in North Korea. Generally, the UN sets up commissions of inquiry for situations where conflicts, atrocities and destruction are clearly visible in the context of civil wars like in Syria or Darfur. The establishment of a commission for North Korea recognizes that there are serious crimes being committed in this largely closed off society where no human rights experts or groups are allowed in, where information is tightly controlled, surveillance pervasive, and where anyone who does visit is unable to talk with North Koreans about human rights. Indeed, the North Korean government has invested tremendous energy in trying to conceal the situation. Yet over the past decade, with satellite photographs and testimony from former prisoners who escaped, a picture has emerged of large numbers of political prisoners incarcerated in subhuman conditions in forced labor camps hidden away in mountainous areas. By exposing the situation, the UN is challenging North Korea’s efforts to hide its atrocities.
A second reason why the commission is significant is that it reflects international willingness to move beyond censure and look at North Korea’s violations as possible crimes against humanity for which North Korean leaders could be held accountable in future. Getting to this point has taken a long time. For ten years, the UN’s highest ranking UN official on human rights, the High Commissioner for Human Rights has tried to establish a dialogue with North Korea and develop technical cooperation agreements with its government. Such cooperation would include rule of law programs, educational programs or setting up a national human rights commission, arrangements which the UN has with more than 50 governments. But North Korea has regularly refused to talk with the High Commissioner or allow in the UN Rapporteur on Human Rights in North Korea, a position set up by the Human Rights Council in 2004 to investigate and report on the human rights situation. North Korea has also regularly ignored the recommendations put forward in resolutions adopted annually by the UN General Assembly and in reports of the UN Secretary-General.
Its failure to cooperate has alienated many states. When the UN General Assembly first adopted a resolution on North Korea’s human rights situation in 2005, 88 states voted for the resolution (up to 100 opposed or abstained). By 2011, the number in favor of the resolution went up to 123 and in 2012, the 193 member General Assembly adopted the resolution by consensus. The 47 member Human Rights Council which established the commission of inquiry adopted it by consensus as well. Although North Korea has complained that the commission of inquiry is a hostile Western plot, 18 African states in the Council, 13 Asian states, and 8 Latin American countries joined the European states and the United States in supporting the commission, and China and Russia, although not Council members this year, did not try to stop the commission. It should be noted as well that the UN senior officials at the forefront of the commission are not Westerners. The High Commissioner for Human Rights Navi Pillay who made a widely publicized appeal in support of the commission is a South African of Indian origin. Marzuki Darusman, the Special Rapporteur whose report to the Council made the legal case for the commission, was the former Attorney General of Indonesia. He built on the work of his predecessor, a Thai law professor Vitit Muntarbhorn.
In making an exhaustive study of North Korea’s human rights situation, the commission will face many challenges. Let’s look at a few. First is the information issue. Commission members are by all expectations not going to be allowed into North Korea which means the commission is going to have to rely mainly on information from those who have been to or have some knowledge of the country, the testimony of survivors of prison labor camps and detention facilities and satellite photos. When it comes to the testimony of survivors, it is not easy for them to give testimony – that is, to revisit a painful past. They also put themselves at risk (North Korea has designated some as enemies of the state and harass them through hacking and other serious means). Further they put at risk family members, friends and colleagues left behind. All the North Koreans who come out are haunted by what has happened to their family members, colleagues and friends because of their departure and testimony. Of the 25,000 North Koreans who have made their way to the South over the past decade, hundreds are former prisoners and former prison guards with stories to tell.
A second challenge will be developing a better approach for dealing with the human rights information coming from the survivors. For years, UN High Commissioners generally did not say very much about North Korea and explained that North Korea’s closed door policy barred the UN from forming its own independent diagnosis of the human rights situation. In other words, a direct assessment was needed to establish credibility. Even the State Department’s human rights report in 2012 came with caveats that no one can assess fully human rights conditions and that the testimony of defectors can be dated. Instructive is what NGOs have done. They may not have had access to the country or the camps but the Committee for Human Rights in North Korea, for example, published an in depth report on the camps, Hidden Gulag, written by David Hawk in 2003 and updated in 2012, which published the testimony of 60 former prisoners and prison guards and the author was very careful in interviewing survivors and using their information. Many of their accounts, the report shows, corroborate the testimony of others so that they can be seen as factual. And satellite photos further provide verification of the camps. The book Escape from Camp 14, which came out in 2012, gives the hair raising account of a survivor who was born in the camps and miraculously escaped. For the very first time, in December 2012 the UN High Commissioner for Human Rights met with camp survivors – two of them – and was reportedly quite affected. Not long after that meeting, she issued her first really strong statement on North Korea, underscoring what she learned from the two survivors and calling for a commission of inquiry. Perhaps the High Commissioner’s Office began to realize that its constantly drawing attention to the lack of verifiable information on North Korea could have the unintended effect of lending support to North Korea’s claims that the human rights abuses reported are based on “unfounded information” emanating from those who had betrayed their country.
North Korea has felt threatened by survivors’ testimony and has been trying to reduce the number of North Koreans telling their stories. It has been cracking down intensely at its border with China (with shoot to kill orders, extensive new barbed wire and increased surveillance) in order to prevent North Koreans’ departure for the South. 1,509 North Koreans reached South Korea in 2012, only about half the number that managed to escape the year before. But North Koreans continue to come out and wield the only weapon they have against the regime -- information.
Still another challenge for the commission will be to elicit information from humanitarian and development organizations which have field presence, albeit limited, in North Korea and may have some information. They may be averse to cooperate openly with the commission for fear of being expelled. Yet the food issue will be part of the commission’s work. I would note that the starvation rations for prisoners make them among “the most vulnerable” in the population. And the most vulnerable are the people humanitarian agencies are supposed to monitor and try to reach.
The commission, I believe, should be part of an overall UN strategy to promote human rights in North Korea. The strategy should be developed and led by the Secretary-General and 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, international access to the penal labor camps, an end to the prison system and forced labor, and allowing freedom of movement for North Koreans across borders. A UN strategy to be effective should bring together the myriad of UN offices and agencies involved with North Korea, including UNHCR, UNDP, the ILO, UNESCO, the World Food Program and others so that the entire system can be tapped and work together to seek to improve human rights in North Korea.
Governments, although not mentioned in the UN resolution, also should be expected to provide information to the commission, sometimes on a confidential basis, including satellite information and their interpretations of it which is currently not available.
In closing, let me draw attention to a final challenge – and that is, what happens if the commission determines crimes against humanity. How can North Korean leaders be held accountable? North Korea has not ratified the Rome Statute of the International Criminal Court so the Court does not have jurisdiction in the case of North Korea. Of course the Security Council can refer the case of North Korea to the Court, but China or Russia are on the Council and can be expected to veto such a referral (although China did not challenge the setting up of the commission of inquiry). There are other options as well, such as setting up an independent tribunal for North Korea (independent tribunals exist for the former Yugoslavia and Rwanda) but again the Security Council would probably have to authorize the tribunal. Or there’s the option of having the UN General Assembly refuse North Korea’s credentials – this was done once in the case of South Africa’s apartheid system. Let me call on students and faculty at the Fletcher School to look at the issue of accountability and come up with ideas. Recall that the idea for a commission of inquiry first arose in 2006 with a report of the Committee for Human Rights in North Korea. No one thought the commission could happen, but it did. You may come up with ideas that will contribute to international thinking on this issue.