By Roberta Cohen
21 March 2013
On March 21, 2013 the United Nations Human Rights Council, a body of 47 states, adopted by consensus a resolution to establish a commission of inquiry (COI) into North Korea’s “systematic, widespread and grave violations of human rights.” The commission is to be composed of three experts who will intensively investigate for a period of one year the human rights violations perpetrated by North Korea’s government with a view to ensuring “full accountability, in particular where these violations may amount to crimes against humanity” [emphasis added]. The establishment of the commission reflects long overdue recognition that a human rights ‘emergency’ exists in North Korea. Commissions of inquiry at the United Nations have mainly been directed at situations like Syria, Darfur or Libya where conflicts, atrocities and destruction are clearly visible and in the headlines. Adding North Korea to the list suggests a new look at what a human rights crisis might be. In contrast to other situations, North Korea has always managed to hide its crimes. Most prison camps are in remote mountain areas, access to the country is barred to human rights groups, and rigid internal controls make it impossible for anyone who does manage to visit to talk with North Koreans about human rights. Indeed, the lack of access and the UN’s inability to form an “independent diagnosis” of the situation has long contributed to the reluctance of its senior officials to speak out strongly about North Korea. Even the US State Department’s human rights report for 2011, published in 2012, contained the caveat that no one can “assess fully human rights conditions or confirm reported abuses” in North Korea. The change in attitude also reflects an international willingness to move beyond mere censure in addressing North Korea’s human rights violations. For more than eight years, the UN General Assembly and Human Rights Council have adopted annual resolutions expressing “very serious concern” at North Korea’s systematic, widespread and grave violations. Now, the international community is viewing North Korea’s violations as possible crimes against humanity for which North Korean leaders could be held accountable. Navi Pillay, the UN High Commissioner for Human Rights, declared for the first time in 2013 that North Korea’s “rampant” violations “may amount to crimes against humanity.” And in his report to the Human Rights Council, the UN Special Rapporteur on human rights in North Korea, Marzuki Darusman, identified nine specific areas where North Korea might be committing crimes against humanity. These include: food policies leading to starvation; prison camps; arbitrary detention; the use of torture and inhuman treatment; enforced disappearances and abductions; policies of discrimination; and violations of freedom of expression and movement, and of the right to life through executions and extensive use of the death penalty. According to the Rome Statute of the International Criminal Court, crimes against humanity are among the most severe human rights violations, constituting one of the four core international crimes (in addition to war crimes, genocide and the crime of aggression). Murder, enslavement, unlawful imprisonment, torture, sexual violence and disappearance are considered crimes against humanity when they are perpetrated as part of “a widespread or systematic attack” against the civilian population. Since 2006, non-governmental organizations have argued that North Korea’s human rights violations constitute crimes against humanity. Now for the first time, senior UN officials and many governments are beginning to view North Korea’s violations as possible international crimes as well. Testimony of Former Prisoners One reason for the change in attitude is the testimony of prison camp survivors. Among the 25,000 North Koreans who have made their way to South Korea over the past decade, hundreds have been former prisoners and have come forward to give their accounts. Published and well disseminated in the West, they have created a stir. One of the first was The Aquariums of Pyongyang by Kang Chol Hwan and Pierre Rigoulot which described former prisoner Kang’s 10 year experience in a camp. Published in France in 2000, the account is credited with having influenced the French government to press the UN Commission on Human Rights (predecessor to the Human Rights Council) to adopt its first resolution on human rights in North Korea in 2003. The following year, after President Bush read the book and met with Kang, the US gave its strong support to the establishment of a UN special rapporteur on human rights in North Korea. Drawing on the testimony of prison camp survivors, David Hawk wrote the first in depth study of the prison labor camp system in 2003, Hidden Gulag, published by the Washington-based Committee for Human Rights in North Korea. The updated version in 2012 contained the accounts of 60 former prisoners and prison guards. Most instructive was that the accumulated accounts began to corroborate one another, giving them a ‘factual’ basis even though there was no direct access to the country or its prisons. And the testimonies were reinforced by satellite imagery from Google Earth and by prisoners’ drawings, making them far more difficult to dismiss. As a result, North Korea’s denial of the camps and dismissal of victims’ accounts as the “unfounded” falsehoods of defectors seeking to betray their country increasingly failed to persuade. The book, Escape from Camp 14 by Washington Post reporter Blaine Harden attracted extensive publicity in 2012 and is said to have encouraged officials inside the UN to press for the commission of inquiry. Navi Pillay was reportedly moved when she met with Shin Dong Hyuk, the subject of the book, and another survivor. In simple but powerful prose, the book describes the experiences of Shin who was born in the camps and who has been going from country to country with the book, now translated into a number of languages, to tell what was done to him by the prison camp system. By speaking out, North Korea’s former prisoners regularly put themselves at risk and also may jeopardize their family members, colleagues and friends left behind. (Both Shin and Kang have enlisted the help of the UN Working Group on Arbitrary Detention to assist them in finding out information about their father and sister, respectively.) To reduce the number of North Koreans telling their stories, Pyongyang has been intensely cracking down at its border with China to prevent North Koreans’ departure for the South. The total number of North Koreans who have reached South Korea in 2012 was 1,509, about half the number from the year before. But North Koreans continue to come forward, using their only weapon against the regime—information. Patience Wears Thin Another reason for the commission of inquiry is that the international community reached a limit in its patience for tolerating North Korea’s failure to cooperate with the UN in the human rights area. For ten years the High Commissioner for Human Rights has tried to establish a dialogue with the North Korean government and develop technical cooperation agreements—an arrangement the Office has with more than 50 governments. But year after year, Pyongyang failed to cooperate. Secretary-General Ban Ki Moon even instructed his Special Envoy to Pyongyang in 2010 to urge North Korea to cooperate with the High Commissioner. But by 2013, High Commissioner Pillay announced, “I don’t think the world should stand by and see this kind of situation, which is not improving at all.” “For years now,” she said, “the Government of DPRK has persistently refused to cooperate with successive Special Rapporteurs…or with my Office.” She waited, she said until after Kim Jong Un took over from his father in 2011, but when no reforms were forthcoming, she decided to take a “firmer step.” UN General Assembly resolutions similarly expressed concern with North Korea’s failure to cooperate with the High Commissioner, the Special Rapporteur and the UN’s Universal Periodic Review of North Korea. The UN, it can be said, reached a tipping point, perhaps abetted by North Korea’s rocket and nuclear tests and continued provocative threats. Although North Korea has claimed that the commission of inquiry is part of a “political plot” of “hostile forces, it is noteworthy that those in the forefront of the UN system in support of the commission are not Westerners. High Commissioner Pillay, the senior most UN official to publicly call for the commission, is a South African of Indian origin. Marzuki Darusman, the Special Rapporteur, who issued the 2012 report which served as the foundation for the call, was the former Attorney General of Indonesia. He built on the work of his predecessor, Thai law Professor Vitit Muntarbhorn, in telling the Human Rights Council that “the violations in the DPRK have reached a critical mass,” and that “many, if not all, of the nine patterns of violation, identified in my present report, may amount to crimes against humanity.” Although North Korea calls the material on which the report is based “faked,”  the report issued by Darusman is well documented, lawyerly and based on considerable research, as could be seen from the annexes to the text. Other parts of the UN human rights system have joined in to express support for the commission of inquiry. Drawn from countries like Argentina, Senegal and South Africa, the UN’s independent experts on torture, arbitrary detention, disappearances and extrajudicial executions issued a joint statement together with Darusman endorsing an international inquiry. This joint action on behalf of the commission occurred after the rapporteurs received no response from North Korea to a query they made about the prison labor system. Most significantly, governmental support has increased for bringing North Koreato account. When the UN General Assembly first adopted a resolution on North Korea’s human rights situation in 2005, 88 states voted for the resolution. By 2011, the number of states supporting the resolution had gone up to 123. In 2012, the 193-member General Assembly adopted the resolution by consensus, that is, without a vote, with states like China, Cuba and Venezuela comprising a minority who disassociated themselves from the text after its adoption. Last year, the Human Rights Council also adopted its annual human rights resolution onNorth Korea by consensus, suggesting the development of a greater unanimity aboutNorth Korea’s human rights record. At this session, the resolution creating a commission of inquiry was adopted by consensus. Another strong player which North Korea must reckon with is an NGO coalition of more than 40 organizations. In 2011, the International Coalition to Stop Crimes Against Humanity (ICNK) in North Korea was formed. ICNK has lobbied governments, published opeds, and worked the corridors at the UN to press for the creation of a commission of inquiry. Although NGOs can be competitive and even undercut each other’s work, the more than 40 groups that have banded together have shown remarkable unity and effectiveness. The coalition includes the major international human rights NGOs as well as groups from a variety of Asian and other countries. It is now heavily invested in the success of the commission’s work. Indeed, a worldwide effort will be needed to help bring forward information to the commission so that it can produce the best and most well documented report. The Council’s resolution calls upon UN specialized agencies, regional bodies, UN rapporteurs, experts and NGOs to cooperate with the commission. But governments should be expected to cooperate as well, in particular to provide relevant information, sometimes on a confidential basis, including satellite information that might be more precise than what is currently available to NGOs. An Overall Strategy The commission of inquiry should not be seen as an end in itself but rather as part of a larger strategy to promote human rights inNorth Korea. A strategic plan should be developed and led by the Secretary-General together with the 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; gaining international access to the penal labor camps; bringing an end to the prison system and forced labor; and allowing freedom of movement for North Koreans across borders. A strategic plan would bring together the myriad UN offices and agencies involved with North Korea, including the UN High Commissioner for Refugees, the UN Development Program, the International Labor Organization, the UN Department of Public Information, UNESCO, the World Food Program and other humanitarian organizations so that the entire system can be tapped and work together. Humanitarian groups in particular should be consulted about causes of starvation in the country and access to those in need. They should be reminded that “the most vulnerable” in the population include the 100,000 to 200,000 political prisoners held in camps on starvation rations. In sum, a comprehensive strategy needs to be developed. The New Human Rights Landscape Admittedly, heightened international scrutiny of North Korea’s human rights record may have little impact on the ground in the short term. It is likely North Korea will continue to defy efforts by the UN to establish dialogue and technical assistance programs. It may even crack down harder against its population and those seeking to flee across the border. But over the longer term, the growing number of states, including those from developing countries, as well as UN officials, experts and NGOs arrayed against North Koreabecause of its human rights record may give some North Koreans pause, especially since efforts will be made by UN officials to identify individuals and institutions to hold accountable in future. Moreover, the states which North Korea might turn to for talks and aid will be influenced as well. The United States, for example, long has separated its human rights concerns from its political and nuclear relationships with North Korea, but it also has felt pressured by the strong publicity coming out about the human rights situation. Glyn Davies, the Special Representative for North Korea Policy told the Senate on March 7, 2013, that “U.S.-DPRK relations cannot fundamentally improve without sustained improvement in inter-Korean relations and human rights” [emphasis added]. This perhaps suggests the beginnings of a more integrated policy on the part of theUS for dealing with North Korea. It is to be hoped that the idea will spread to other countries as well. Even North Korea’s principal ally China is reported to be growing uncomfortable with the regime’s provocations and excesses. Although China has remained for the most part steadfast in its support of North Korea, North Korean officials can themselves read in the press that questions are arising in China about its policies in support of North Korea. One article even pointed to public concerns in China about its own labor camps and whether they should be closed. It is not easy to predict when change will come. It was not foreseen that the Berlin Wall would fall when it did, that the Soviet Union would collapse, and that reforms would take place in Arab countries. But bringing down the information wall around North Korea and exposing its crimes against humanity may in time lead to change.