By Christoph Sperfeldt
Centre for International Governance & Justice, ANU
On 17 February 2014, the Commission of Inquiry (COI) on Human Rights in the Democratic People’s Republic of Korea (DPRK) presented its long-awaited final report , which was shortly afterwards “categorically” rejected by DPRK representatives as a “sheer fabrication”.
The report is the culmination of more than a decade of advocacy efforts by non-governmental organisations and United Nations human rights bodies to shift the world’s attention from security and nuclear concerns in its relations with North Korea to ongoing serious human rights violations in the DPRK. Almost 25 years after the fall of the Berlin Wall, Cold War-like dynamics have continued to dominate the political discourse around North Korea in the international arena. The question is whether the comprehensive and boldly written report by the COI will change the current status quo and make human rights issues a priority for the international community’s dealings with North Korea.
The DPRK is one of the most secretive regimes in the world, and the country has been inaccessible to most international actors, governmental or non-governmental. It is only over the past decade or so that the barriers to gathering reliable information have gradually been surmounted, mainly through more systematic efforts to collect information from the thousands of North Koreans who have fled the country; along with technological advances allowing for the provision of better quality satellite images, such as those made publicly available by Digital Globe and Google Earth, confirming the existence of large prison camps in the DPRK .
Confronted with a growing body of evidence, the UN Commission on Human Rights eventually decided to create, in 2004, a special procedure mandate on human rights in the DPRK. Two consecutive Special Rapporteurs – Vitit Muntarbhorn of Thailand (2004-2010) and Marzuki Darusman of Indonesia (2010-) – have since reported regularly to the Human Rights Council and the UN General Assembly, although both have been denied access to the country. By February 2013, a total of 22 reports by the Secretary-General and Special Rapporteur had been presented to UN Member States underscoring grave human rights violations in the DPRK, and the General Assembly and its subsidiary organs had adopted 16 resolutions on human rights, expressing first “serious concern” and, from 2008 onwards, “very serious concern” about these violations . These efforts had little effect on the ground, however, and the international community’s expression of concern was in danger of becoming an annual exercise in human rights ritualism vis-à-vis an uncompromising North Korea.
Over the years, the calls for firmer action grew louder. By 2013, the Special Rapporteur, the UN High Commissioner for Human Rights and various international NGOs were all calling for an international inquiry into the reported crimes. In March 2013, the Human Rights Council decided to establish the Commission of Inquiry. The fact that the decision was made without a vote, i.e. by consensus, and that the General Assembly subsequently welcomed the resolution, also by consensus, seemed to reflect a growing international awareness and concern for the situation in North Korea.
Human Rights Council Resolution 22/13 mandated the COI to “investigate the systematic, widespread and grave violations of human rights” in the DPRK, “with a view to ensuring full accountability, in particular where these violations may amount to crimes against humanity”. The resolution also made reference to nine specific and interlinked areas of rights violations previously identified by the Special Rapporteur, which defined the focus of the Commission’s inquiry and are reflected in the structure of the COI’s final report. In May 2013, the Human Rights Council appointed the Australian former High Court Judge Michael Kirby and Sonja Biserko of Serbia to join the Special Rapporteur Marzuki Darusman on the independent three-member panel. Mr Kirby was subsequently designated to serve as the COI’s Chair, and the OHCHR served as the Commission’s Secretariat and support body. The DPRK rejected the mandate and refused to cooperate with the Commission, including by denying it access to the country and disputing its factual findings.
Lack of physical access to sites and witnesses in the DPRK created challenges to a full-fledged investigation, which the Commission attempted to rectify by gathering information from alternative sources. The COI held four public hearings in Seoul, Tokyo, London and Washington D.C., where more than 80 witnesses and experts testified publically [see photo]. Due to protection concerns, the Commission also conducted over 240 additional confidential interviews, many with individuals from among the group of around 30,000 people thought to have fled or defected from North Korea. In addition, the COI solicited input from UN member states, NGOs and other interested parties through a public call for submissions – it received more than 80 such submissions in response. Satellite images were also used for the investigations and included in the final report.
Because the COI could rely on a broad array of evidence gathered previously by various groups, it was able to produce in a relatively short period a 372-page final report that is remarkable in its detail and scope, compared to other reports produced by similar UN inquiry mechanisms. This post does not attempt to provide a full summary of the report, but highlights instead some issues of particular interest (references are made in brackets to relevant paragraphs as enumerated in the COI’s report).
Firstly, the Commission locates the human rights violations in the broader socio-political environment that developed in the aftermath of the Korean War and laid the foundations for the emergence of the current regime. The report argues that the current political system of the DPRK bears the characteristics of a “totalitarian state”: the rule of a single party, led by a single leader, and based on an elaborate guiding ideology. Some passages in the report are reminiscent of Hannah Arendt’s analysis in The Origins of Totalitarianism, for instance, the Commission’s description of the DPRK as “a state that does not content itself with ensuring the authoritarian rule of a small group of people, but seeks to dominate every aspect of its citizens’ lives and terrorises them from within” (1211-1212). This state, the report says, maintains “an absolute information monopoly and total control of organised social life” through “an all-encompassing indoctrination machine”. Social control is characterised by 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” (259-260), and by “entrenched patterns” of “state-sponsored discrimination” (346), including against religious groups and women. “Fear is the keystone that ultimately holds up the edifice of the current state structure” (838).
Secondly, the Commission finds that a number of gross human rights violations committed in a widespread and systematic manner by the DPRK and its institutions constitute crimes against humanity. The report argues, “these are not mere excesses of the state”, but “international crimes which appear to be intrinsic to the fabric of the state” (1164) – and “the gravity, scale and nature of these violations reveal a state that does not have any parallel in the contemporary world” (1211, emphasis added). Among the many violations examined by the Commission are the crimes committed throughout the country’s extensive network of political and ordinary prisons and the systematic enforced disappearance of persons, including many foreign nationals. The detailed description of crimes against the inmates of political prison camps and corresponding accounts by witnesses recall Aleksandr Solzhenitsyn’s The Gulag Archipelago. The report estimates the current number of political prisoners at 80,000 to 120,000, with “hundred of thousands” having died in the camp system. The living conditions imposed on the inmate population “are calculated to bring about mass deaths”. According to the Commission, these factual findings match the definition of a crime against humanity as they involve extermination and enslavement (1043-1049) – “that such political prison camps continue to exist at present in the DPRK is”, the Commission says, “an affront to universally shared human rights values and a crime against humanity” (1067).
Beyond the expected focus on prison camps and executions, the Commission adopts a comprehensive and, in some respects, far-reaching approach to examining the crime base in North Korea. Two examples demonstrate this approach: the report’s special attention to gender-based crimes and to policy-induced starvation. The Commission devoted specific attention to gendered issues and the impact of violations on women and children (17). It finds that rape and other forms of sexual violence “are regularly committed in the political prison camps” (1054) and that “systematic or widespread forced abortions must be considered a form of sexual violence of a gravity amounting to crimes against humanity” (1055). The COI also examines the widespread starvation among the North Korean population, known to the outside world, particularly through the famines of the 1990s in which hundreds of thousands died of hunger and related diseases. It argues, “the state has used food as a means of control over the population” (682) and impeded the delivery of food aid, “at the cost of seriously aggravating hunger and starvation” (685). In consequence, the Commission finds that “DPRK officials have committed crimes against humanity by implementing actions, decisions and policies known to have led to mass starvation, [and] death by starvation…” (1115). It will be interesting to see how these findings will be considered during follow-on processes, as instances of mass famine have too often been dismissed as unfavorable side effects of other policies, rather than criminal acts. There is little jurisprudence available on policy driven starvation and, to date, no court has rendered a conviction framing deliberate policies that lead to starvations as an international crime .
Thirdly, the COI provides an indictment of China’s treatment of North Koreans who cross the border onto its territory. The Commission finds that “China pursues a rigorous policy of forcibly repatriating DPRK citizens who cross the border illegally ” and, in doing so, it “has violated its obligations to respect the principle of non-refoulement under international refugee and human rights law” (490). China did not allow the Commission to conduct investigations on its territory (45) – although it did not vote against the COI’s establishment – and it has repeatedly stated that DPRK citizens who enter China illegally do so for economic reasons and are therefore not considered refugees (454). Chinese government representatives repeated this line of argumentation after the publication of the COI’s report and rejected any criticism of China’s current policies. It remains to be seen whether the renewed focus on China’s human rights policies at the North Korean border will influence the country’s future behavior towards its neighbour.
Fourthly, the Commission criticises the “inadequacy of the response of the international community” (1217). The fact that the DPRK, as a member state of the United Nations, “has committed crimes against humanity over a span of several decades, raises questions [in the Commission’s view] regarding the accountability of the international community” (1204). The COI appeals to the international community to fulfil its responsibility to protect the population of the DPRK from crimes against humanity “using first and foremost appropriate diplomatic, humanitarian and other peaceful means” (1205). Language adopted from the R2P framework is visible throughout the report – the ‘responsibility to protect’ is mentioned no less than seven times. In its recommendations, the Commission calls for a broad and “multi-faceted strategy that combines strong accountability measures targeting those most responsible for crimes against humanity, reinforced human rights engagement with the authorities of the Democratic People’s Republic and support for incremental change based on people-to-people dialogue and an agenda for inter-Korean reconciliation” (1210).
Finally, and with regards to the Commission’s mandate to ensure accountability, it finds “that an international court or tribunal must be given jurisdiction, without delay” (1200). The Commission identifies two suitable options: either the Security Council could refer the situation in the DPRK to the International Criminal Court (ICC), or the United Nations could set up an ad hoc international tribunal, similar to those established for the former Yugoslavia (ICTY) and Rwanda (ICTR) (1201). Both options face challenges. Even if the Security Council, including the Permanent Five (P5), agrees to an ICC referral – which is less than certain as the situation in Syria has shown – the ICC would only have jurisdiction for crimes committed after 2002, when the Rome Statute entered into force. Likewise, following the experiences of the ICTY and ICTR, the international community will be cautious about entering into yet another undertaking of the same kind that will require considerable resources and time before any alleged perpetrators stand trial. However, and foreshadowing a deadlock in the Security Council, the COI proposes that this option could also be pursued by the General Assembly, such as through a ‘Uniting for Peace’ resolution if the Security Council fails to act (1201). Yet, in its recommendations, the Commission limits itself to calling for the Security Council to refer the situation to the ICC. In addition, the Commission recommends targeted sanctions against those individuals most responsible for the crimes (1225), and says that these measures should be complemented by a Korean-led transitional justice process once profound reforms are underway in the DPRK (1203).
Now that the Commission’s report is public, what will happen with its findings? The Commission will formally present its findings to the UN Human Rights Council in Geneva, in a session that is currently scheduled for 17 March 2014. It will then be up to the members of the Human Rights Council to endorse the COI’s recommendations, adopt a strongly worded resolution, and ask the UN Secretary-General to bring the report to the attention of the Security Council and the General Assembly for action. Special Rapporteur Marzuki Darusman stressed “these developments are not an end but the beginning of a much needed and determined approach towards improving human rights for the tens of millions in the country” . Although it can be expected that some of the recommendations on accountability will lead to complex and protracted negotiations among member states, other interim measures may gain consensus more easily. For instance, the Commission recommended maintaining the confidential electronic database used to store its information as a “living instrument” (82) that could become the core of a new “structure to help ensure accountability for human rights violations” in the DPRK (1225). It is not clear what form such a ‘structure’ could take, but it would presumably consist of a better-resourced team, likely under the auspices of the High Commissioner for Human Rights, that could support an extended mandate of the Special Rapporteur and related documentation efforts, possibly by relying on a field presence in the region.
Beyond the complex decision-making processes at the international level, much will depend on the COI report’s impact on changing the international discourse towards North Korea. Although most of the information contained in the report has been in the public domain for many years, these findings by a high-profile Commission may help to elevate human rights issues in the DPRK onto the agenda in bilateral and multilateral fora. When journalists asked Michael Kirby whether he believed the report would lead to any immediate changes in the DPRK, he recalled his experience as Special Rapporteur in Cambodia during the early 1990s, where a decade later an internationalized tribunal was set up: “Bearing witness, collecting the stories, recording them and putting them there for future use can sometimes bear fruit a little later.” 
 ‘Report of the Detailed Findings of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, Marzuki Darusman’, Human Rights Council, 22nd Session, UN doc. [A/HRC/22/57 of 1 February 2013].
 Cohen, Roberta, 2013. ‘Human Rights in North Korea: Addressing the Challenges’, 22(2) International Journal of Korean Unification Studies, 29-62.
 ‘Report of the Special Rapporteur on the Situation of Human Rights in the Democratic People’s Republic of Korea’, A/HRC/22/57 of 1 February 2013], para. 6-9.
 See for instance Marcus, David, 2003. ‘Famine Crimes in International Law’, 97 The American Journal of International Law, 245-281.
 ‘Statement by Mr Marzuki Darusman, Special Rapporteur on the Situation of Human Rights in the Democratic People’s Republic of Korea’, 68th Session of the General Assembly, 29 October 2013.
 Cited from Walker, Peter, 2014, ‘North Korea Human Rights Abuses Resemble Those of the Nazis, Says UN Inquiry’, The Guardian, 18 February 2014.