Philippe Dam, Human Rights Council Advocate
Human Rights Watch – Geneva
The adoption by the Human Rights Council of a resolution establishing an international Commission of Inquiry into the “systematic, widespread and grave violations of human rights” in North Korea is an important breakthrough. It signals the extremely grave concern with which the UN views the decadesof rights abuses in the country. The establishment of the Commission of Inquiry was the outcome of a 10-year-long process and gradual shift of the political landscape within the Human Rights Council. It was also made possible by the extensive documentation work led since 2004 by the holders of the UN Special Rapporteur mandate on the situation of human rights in North Korea.
One of the most immediate implications of the establishment of the Commission of Inquiry is the deployment of a large investigative team, with the unique ability to gather testimonies, collect evidence and document abuses committed in North Korea. The work achieved by the HRC Commission of Inquiry has the potential to enhance the future of the international community’s engagement on human rights in North Korea, from stepping up the focus on accountability to further projecting the voices of the victims of human rights violations in the country.
Failure of North Korean’s defensive approach at the international level
For almost a decade the North Korean government has defied repeated appeals of the United Nations and other international actors to cooperate and improve the human rights situation in the country. North Korea’s response to allegations of violations documented by the Special Rapporteur and other NGO monitors was simply to deny the facts. By stepping up its engagement and establishing a Commission of Inquiry, the Human Rights Council clearly signaled to North Korea that its denial of basic facts and defiance of its human rights obligations as a member state of the United Nations willno longer be tolerated.
Ø The North Korean government has repeatedly failed to cooperate with the UN. It has categorically rejected all resolutions adopted by the UN Human Rights Council and the UN General Assembly on the situation of human rights in North Korea.
Ø Since the establishment in 2004 of the mandate of the Special Rapporteur on the situation of human rights in the DPRK, the government of North Korea has refused to acknowledge, meet or otherwise cooperate with the Special Rapporteur. The government has repeatedly stated its position that it rejects the UN Human Rights Council decision to establish the mandate. During the nineteenth session of the UN Human Rights Council in March 2012, the North Korean Ambassador rejected the Special Rapporteur’s report, branding it a “useless interpretation” which was “fabricated by hostile elements.”
Ø Since 2003, the North Korean government has rejected all offers for technical assistance from the Office of the United Nations High Commissioner for Human Rights (OHCHR).
Ø During its review through the UN Universal Periodic Review process, the North Korean government expressly denied all instances of reported abuses, claiming that allegations are based on “distorted facts or fabrication” or that negative assessments of the human rights situation in North Korea are “based on misinformation fabricated by those who betrayed their country.”
Erosion of the support of North Korea’s allies over human rights issues
The adoption of the March 2013 resolution on North Korea is the firmest indication that member states in the UN will no longer stand by and tolerate human rights abuses in North Korea. Since the initial adoption of resolutions on North Korea by the Commission on Human Rights in 2003 and the establishment of the Special Rapporteur’s mandate in 2004, a large majority of states had supported the UN action to denounce human rights violations in North Korea, but a small yet determined group of States opposed such action or refused to support it.
In 2008, after four years of work by the Special Rapporteur, things started to change and since then the number of supporters of the resolutions has steadily increased:
o Year Res number Yes No Abstentions
2008 Res 7/15 22 7 18
2009 Res 10/16 26 6 15
2010 Res 13/14 28 5 13
2011 Res 16/8 30 3 11
Ø When the HRC resolution on North Korea was adopted in March 2011, the only three member states voting against the resolution were China, Russia and Cuba. In March 2012, those three same states decided to let the resolution pass without a vote but dissociated themselves from the consensus. For the first time the resolution on human rights on North Korea went unopposed. From that point forward, the UN was able to increase its pressure on North Korea and strengthen its capacity to investigate abuses.
Ø The voting pattern of the resolutions on North Korea at the UN General Assembly followed a similar trajectory in terms of political support since 2008.
o Year Res number Yes No Abstentions
2008 RES/63/190 94 22 63
2009 RES/64/175 99 20 63
2010 RES/65/225 106 20 57
2011 Res/66/174 123 16 51
2012 RES/67/181 Adopted without a vote
Ø In his statement to the General Assembly’s Third Committee in November 2012, the Special Rapporteur called member states to consider the establishment of a “more detailed mechanism of inquiry.” In his report to the Human Rights Council in March 2013, the Special Rapporteur went further by concluding that there is a “need for the establishment of an inquiry mechanism with adequate resources to investigate and more fully document the grave, systematic and widespread violations of human rights in the Democratic People’s Republic of Korea and report to the Human Rights Council and the General Assembly.”
Earlier in the year, the UN High Commissioner for Human Rights, Navi Pillay had alsostated that “an in-depth inquiry into one of the worst – but least understood and reported – human rights situations in the world is not only fully justified, but long overdue.” She said: “the time had come for a full-fledged international inquiry into serious crimes that had been taking place in the country for decades.” She was followed on February 28 by the similar call of a group of thematic procedures of the Council voicing support “for the implementation of an international inquiry into human rights abuses in North Korea.”
Added value of the work of the Commission of Inquiry:
Commissions of inquiry help uncover the truth about violations through rigorous investigation;they give voice to victims and help push for accountability for violations.Thereports of the special rapporteurs on North Korea have so far shed light on the general situation in the country and reported annually on the grave patterns of violations. But the establishment of the commission of inquiry will allow for a more detailed investigation of the allegations of violations. The commission of inquiry will also benefit from additional resources to carry out its investigation. As a result of this commission’s work, it willbe possible to draw conclusions about the specific patterns of abuses, the legal qualifications of the crimes and the need for accountability. The commission would bring additional international political attention commensurate with the seriousness of the situation, bolstering the efforts of the Special Rapporteur to date and ensuring that human rights remain at the core of the international community’s dealings with North Korea. The high profile of the inquiry will also bring more attention to the human rights situation in North Korea, including through the media, and provide an opportunity to press UN and government decision makers to do more to respond the situation.
What if North Korea continues refusing to cooperate?
Given its track record of rejecting the UN human rights mechanisms, the government of North Korea is very unlikely to cooperate with a UN commission of inquiry. Just before the adoption of the resolution during the March 2013 session of the Council, the delegation of North Korea “resolutely rejected” the draft resolution ad qualified the establishment of the Commission of Inquiry as a “hostile act.”
Access and cooperation are generally thought as being important criteria for the success of the work of commissions of inquiry. Yet lack of access and cooperation are not elements which would prevent the commission of inquiry from carrying out its work. The commissioners have the capacity to define working methods and a methodology for their investigation that adapt to the constraints imposed by an uncooperative government. Today, many thousands of victims of abuse of the North Korean government live outside North Korea, particularly in South Korea. Those persons will be in a position to testify to the Commission and tell their stories of surviving egregious and systematic human rights abuses.
The commission will also be able to gather evidence from other sources such as families of victims who have gathered and documented information about the violations their loved ones suffered, and NGOs operating in South Korea, Japan, Thailand, and elsewhere who work closely with North Koreas who have successfully fled North Korea. In what is an important innovation, the Commission of Inquiry plans to hold public hearings in South Korea and Japan in August 2013 to receive evidence from witnesses as well and to create greater awareness of the commission’s mission and mandate.
In the absence of cooperation and access by the government of North Korea, the engagement of other countries will be crucial for the success of the commission’s documentation efforts. In this regard, it is regrettable that China has so far refused to host a visit of the Commission of Inquiry to implement its mandate. This also stands in sharp contradiction with China’s current bid for a seat at the Human Rights Council for the 2014-2016 membership term, as the founding resolution establishing the Human Rights Council requests that all elected members “shall fullycooperate with the Council.”
The Commission would also be able to use satellite imagery and other hard data available on the country. Since the Commission will also focus on the issue of abductions, the Commission will be able to interview families of nationals from South Korea, Japan, Thailand, and other countries who have been abducted by North Korean agents and then transported and held against their will in North Korea.
North Korea’s refusal to cooperate will not prevent the UN from investigating the violations occurring in North Korea and determining whether they constitute crimes against humanity. In fact, commissions of inquiry or similar UN investigative mechanisms have been established, and been able to carry out thorough and effective investigations, despite refusal of the government of the country to cooperate. Recent examples where governments didn’t cooperate include the Commission of Inquiry on Syria, the Goldstone Fact Finding Mission on the 2008 Gaza Conflict and the UN Secretary-General’s Panel of Experts on Sri Lanka.
Looking ahead: The challenge of accountability
The Commission of inquiry has been requested by the Human Rights Council to “investigate the systematic, widespread and grave violations of human rights in North Korea (...), with a view to ensuring full accountability, in particular where these violations may amount to crimes against humanity.”
The Commission will have to determine whether the violations it documents and the patterns it identifies, including in the areas listed in the resolution adopted by the Human Rights Council, amount tointernational crimes, and if so, under which category of crime they fall. This legal characterization will not only be required to identify the gravity of the crimes committed, but also in the process of identifying their possible perpetrators. Indeed, in order to name any specific persons assuspected perpetrators, it is necessary to define the international crimes for which they might be heldresponsible. TheCommission will therefore have to collect a reliable body of evidence that would indicate which individuals may beresponsible for the violations committed.
The investigation report to be produced by the Commission on Inquiry will represent a major step towards international accountability for the crimes committed in North Korea. The Commission is indeed also requested to propose measures to ensure that all those responsible for international crimes in North Korea could be held accountable.
Should the Commission of Inquiry conclude that human rights violations committed in North Korea amount to crimes against humanity, the International Criminal Court (ICC), as the permanent judicial organ set up to try individuals for the crime of genocide, crimes against humanity, and war crimes,could be an appropriate body to address the need for accountability in the country. But several challenges arise in relation to possible action by the International Criminal Court with regard to suspected international crimes committed in North Korea.
First, the Democratic People’s Republic of Korea is not a state party to the Rome Statute which established the ICC. Therefore,for the ICC to be able to act with regards to North Korea, Pyongyang would have to accept the ad hoc jurisdiction of the court, ordecide to join the Rome Statute, or the UN Security Council would have to vote to refer the situation to the ICC. This last option however faces important geopolitical challenges with the likely opposition of China and/or Russia, both of which are permanent members of the Security Council who could veto any such referral of North Korea to the ICC.
In addition, even if the Security Council were to refer the situation in North Korea to the ICC, the temporal jurisdiction of the Court does not apply retroactively and remains limited to crimes committed on the day of or after the entry into force of the Rome Statute, on 1 July 2002. While most of the crimes of abduction of foreign nationals occurred before the establishment of the ICC, the Special Rapporteur on North Korea mentioned that enforced disappearances – whetherthey amount to crimes against humanity or not – “constitute continuous acts that are on-going as long as the fate of the victim is not clarified and on this ground already not affected by prescription.”However, many other crimes committed before July 2002would fall outside the jurisdiction of the Court. The work of the Commission would therefore be crucial to explore the temporal aspects of the international crimes committed in North Korea and advise on the most appropriate accountability mechanisms for North Korea.
Regardless of the UN response on accountability, the UN Security Council should include human rights in its consideration and debates on the situation in North Korea. So far, the Security Council has failed to raise human rights as part of its debates on North Korea. The reason is because in part North Korea is not a conflict situation, but also because the Security Council’s agenda on North Korea has primarily focused on non-proliferation of nuclear weapons. The work of the Commission of Inquiry could also contribute to mobilize Security Council members to seriously include a human rights angle in its their discussion of the situation in North Korea, by demonstrating that the grave human rights situation in North Korea might also constitute a threat to international peace and security.
The work of the Commission of Inquiry on North Korea provides the UN with a unique opportunity to investigate, analyze and legally qualify the human rights violations occurring in the country. It may well be a one-off exercise – but it is crucial to ensure the Commission’s efforts have a long term effect. The outcome of the 10 months of documentation by the three members of the Commission and their staff can have a crucial impact on the future debates around the human rights situation in North Korea. NGO activists engaging on human rights in North Korea should press for Governments to implement the recommendations of the Commission that will come out of its work. Governments and civil society organizations should also consider the establishment of a follow up mechanism to monitor the implementation of the Commission's key recommendations. A major challenge, once the inquiry has finished its work, will be to ensure that human rights violations in North Korea continue to be documented. The widespread and continuingnature of the violations, as well as the fact that information often reaches human rights experts only several years after the violations have occurred, should lead the international community to consider advocating for a follow up mechanism that will allow the UN to continue recording the abuses. Will the existing mandate of the Special Rapporteur be sufficient post-COI? Should the UN equip the Special Rapporteur with extra means to be able to continue the task once the COI has finished its work?
In closing, the COI will hopefully help redress the lack of recognition and support that North Korean victims and defectors have received over the past years. Once and for all, the work of the COI should help clarify that talking about human rights in North Korea is not about taking sides in an ideological confrontation but about the legal obligation to protect individuals from abuse, about restoring the dignity of those who have suffered abuse and holding those who have violated their right accountable for their crimes.
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UN Human Rights Council, Report of the Working Group of the Universal Periodic Review, Democratic People’s Republic of Korea, A/HRC/13/13, 4 January 2010, para.89.
UN Human Rights Council, Report of the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea, MarzukiDarusman, A/HRC/22/57, 1 February 2013, para. 31.
Pillay urges more attention to human rights abuses in North Korea, calls for international inquiry, 14 January 2013: http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=12923&LangID=E
UN experts call for an international inquiry into North Korea human rights abuses, 28 February 2013: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13058&LangID=E
A/HRC/22/57, para. 27
A/67/370, para 38