The UN Security Council is not going to be the only source of North Korean displeasure in coming weeks and months. We have also seen a number of important new developments at the UN with respect to North Korean human rights. In October, we summarized a hard-hitting Special Rapporteurs report and in December we noted the steady decline in the number of countries willing to back North Korea or abstain on the issue. Roberta Cohen alerted us to an unusually strong statement by UN High Commissioner for Human Rights Navi Pillay, who said the time had come for a full-fledged international inquiry into “serious crimes” that had been taking place in the country for decades.
Even with this movement, we were surprised by the hard edge in the new report by the Special Rapporteur to the UN Human Rights Council, which calls for a commission of inquiry.
The central message of the report is that the UN has been reviewing the human rights situation in North Korea since 2004 and it is time to draw some more definitive legal conclusions. This review process now includes over 60 documents: 22 reports by the Secretary-General and the Special Rapporteur, 16 resolutions adopted by the General Assembly and its subsidiary organs, as well as materials submitted by both the DPRK and the peer review process under the Universal Periodic Review, the concluding observations of the human rights treaty bodies, and the opinions adopted by the Working Group on Arbitrary Detention and the Working Group on Enforced or Involuntary Disappearances.
According to the Special Rapporteur, it is possible to extract from these reports patterns of violation of human rights, some of which are “grave” and committed in a “systematic” manner. The indictment includes nine discrete areas that violate international human rights law, including treaties to which North Korea is a party:
- “Violation of the right to food, in particular the effect of State-controlled food distribution policies on the nutritional status and health of the population and the restricted entry of international humanitarian aid to deal with the endemic food crisis;
- Torture and other cruel, inhuman and degrading treatment or punishment, including inhuman conditions of detention;
- Arbitrary detention, as a form of persecution and the criminalization of any behaviour deemed threatening or contrary to the official ideology of the Government, the lack of rule of law and the absence of due process or an independent judiciary;
- 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. Of particular concern is the fact that society is divided into three distinct groups classified according to their political allegiance to the Government. A person’s place in this hierarchy determines the level of access that he or she will have to basic human rights, including access to food, health, education and freedom of movement;
- 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.”
The Appendix provides more detail and ample references on each of the nine identified areas, as well as a full listing of all UN documents pertaining to North Korea’s human rights situation.
The review documents the impunity of the regime with respect not only to these violations, but towards North Korean obligations under particular conventions. And were that not enough, the review touches directly on the sensitive issue of crimes against humanity, which can carry individual culpability under the Rome Statute. The section is worth citing:
“The Special Rapporteur is of the view that many, if not all, of the nine patterns of violation, identified in this report may amount to crimes against humanity, committed as part of systematic and/or widespread attacks against civilian populations, under Article 7, paragraph 1, of the Rome Statute of the International Criminal Court, in particular, subparagraphs (a) murder; (c) enslavement; (e) imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) torture; (h) persecution against any identifiable group or collectivity on political and religious grounds; (i) enforced disappearance of persons; and (k) other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”
The report goes on to note the non-derogable right to be free from the threat of torture and forced disappearance, and notes the particular complex of crimes associated with the maintenance of the gulag.
The review concludes that the time has come for the establishment of an “inquiry mechanism” with adequate resources to investigate, document and report to the Human Rights Council and the General Assembly. What struck us the most: “the inquiry should examine the issues of institutional and personal accountability for such violations, in particular where they amount to crimes against humanity…”
Many will dismiss this as just another set of empty gestures that will lead nowhere, and could even have adverse effects on human rights as the regime hunkers down. We disagree. This report marks a quite fundamental turn in the debate about how to think about human rights violations in the country, particularly in opening up the issue of personal legal culpability and at least referencing the doctrine of state “responsibility to protect” (see US Committee on Human Rights report on failure to protect, and the corresponding obligations of outside parties). Obviously, the battle over the mechanism will now have to be joined as the issue goes before the Human Rights Council. The big question is whether the EU, US, Japan and South Korea will give priority to this initiative and mobilize the support to ensure its adoption. Darusman’s report makes it much more difficult to dismiss setting up a commission. Then the opposition will weigh in. In December 2012, the UNGA adopted the North Korean human rights resolution by consensus for the first time; several states made statements after the vote to disassociate themselves from the consensus, including China. But no one called for a vote. Opponents may see a commission of inquiry as more threatening and dig in their heels. But they will now have to make the case why the United Nations should ignore the Rome Statute, the evolving body of international criminal law and the doctrine of responsibility to protect to which its members have consented.