By David Hawk
01 April 2013
On March 21, 2013 the 47-member state Geneva-based Human Rights Council (HRC), a subsidiary organ of the United Nations General Assembly, adopted a resolution that establishes a Commission of Inquiry (CoI) to investigate more fully the severe human rights violations in North Korea, and to determine whether those violations amount to crimes against humanity.
Commissions of Inquiry are a venerable diplomatic mechanism dating back at least to the Concert of Europe, through which a delegation of eminent persons, almost always legal experts or experienced diplomats from a cross-section of the Concert powers, investigated egregious human rights violations (often massacres) usually with the particular aim of assessing accountability for large-scale atrocities. In recent years, investigative bodies known as mechanisms of inquiry, expert panels or group of experts, as well as commissions of inquiry, created by the UN Security Council, General Assembly or Human Rights Council, have been used to make prima facie determinations of grave breaches of international criminal law prior to the creation of the Ad Hoc Tribunals, such as those for Yugoslavia and Rwanda, or prior to a referral to the International Criminal Court. Presently, another CoI is documenting atrocities in Syria.
For North Korea, the CoI will consist of three “eminent persons,” one of whom will be the present “Special Rapporteur on the situation of human rights in the DPRK,” Marzuki Darusman, the former Attorney General of Indonesia. The other two commissioners will be selected from the regions of Africa, Latin America or Europe. The selection will be made by the revolving President of the Human Rights Council from a list of potential candidates proposed by the member states and the Office of the High Commissioner for Human Rights. One commissioner will almost certainly be an expert in international humanitarian and criminal law, perhaps a former judge or prosecutor from one of the existing international tribunals. Some member states favor the appointment of a high level political figure such as a former foreign minister or head of state.
This new resolution calls for an “adequately resourced” inquiry, meaning that in addition to the three commissioners, the High Commissioner for Human Rights will appoint three or more full time staff and probably additional investigators. The CoI will also be provided the budget necessary to conduct investigations.
Once appointed, the commissioners and staff will operate independently of the Council and the High Commissioners Office. The CoI will make interim reports to the September session of the HRC and to the General Assembly later this year. The full report is scheduled to be presented to the HRC in March of 2014.
The HRC resolution tasks the CoI to investigate systematic, widespread and grave violations in nine specified areas: 1) violations of the right to food; 2) violations associated with prison camps; 3) torture and inhuman treatment; 4) arbitrary detention; 5) discrimination; 6) violations of freedom of expression; 7) violations of the right to life; 8) violations of the right to movement; and 9) enforced disappearances, including the abductions of nationals of other states.
Moreover, these areas or patterns of violations are to be investigated “with a view to ensuring full accountability, in particular where these violations may amount to crimes against humanity” (emphasis added). If so determined, the commissioners have the additional task of making recommendations to both the DPRK and the international community for further action.
Almost certainly, as a part of the investigation, the commissioners will seek entry to Pyongyang. But even more certainly, the DPRK will refuse, as it has with the present and past Special Rapporteurs on human rights in the DPRK. However, given the huge amount of information potentially available in South Korea and Japan, Pyongyang’s non-cooperation won’t stymie the investigation. Other targeted states have also refused to cooperate with comparable UN investigations.
The Road to the Commission of Inquiry
The idea of a full-fledged UN investigation and analysis of North Korea’s human rights violations attracted major public attention in mid-January when UN High Commissioner for Human Rights, Navi Pillay, expressed her disappointment that a year after Kim Jong Un’s accession to power, there were still no signs of human rights improvements. She expressed concern that the enormous importance of North Korea’s nuclear program and missile tests should not be allowed to completely overshadow the deplorable human rights situation, which “has no parallel anywhere else in the world,” and where “self-imposed isolation has allowed the government to mistreat it citizens to a degree that should be unthinkable in the 21st century.” Pillay’s statement noted that the prison camp system, in particular, “involves rampant violations, including torture…summary executions, rape, slave labor and forms of collective punishment that may amount to crimes against humanity.”
However, such a view of North Korea’s human rights abuses is not new, but has been gaining traction over the last several years. At the NGO level, a 2006 study, The Failure to Protect: A Call for the UN Security Council to Take Action in North Korea, posited that DPRK’s famine-worsening food policy, its treatment of political prisoners, and the abductions of foreign nationals are crimes under international law. A 2007 Freedom House report I authored, Concentrations of Inhumanity, analyzed the phenomena of repression associated with the North Korean prison camp system according to the terms and provisions of Article 7 of the Rome Statute of the International Criminal Court, which sets forth the contemporary definition of crimes against humanity. A British-based NGO, Christian Solidarity Worldwide, also published in 2007 a wider ranging study, North Korea: A Case to Answer, A Call to Act, based on an international law analysis by REDRESS, a London-based group of human rights attorneys.
In September 2011, the Tokyo office of Human Rights Watch (HRW) organized a conference where some forty NGOs, including Amnesty International (AI), and the Paris-based Federation Internationale des Droits de l’Homme (FIDH) formed an International Coalition to Stop Crimes Against Humanity in North Korea (ICNK) with a secretariat based in Seoul. The active participation of HRW, AI and FIDH, core groups in the modern mainstream global human rights movement brought considerable organizational capacity to the array of small NGOs that had previously been focusing on various aspects of the North Korean human rights situation. Apart from lobbying UN member states, the major project of the ICNK in 2012 was to bring the DPRK violations to the attention of UN human rights officials known as “thematic rapporteurs”—UN-appointed and supported experts who analyze phenomena of repression that occur in a wide variety of countries. In February 2013, four of the most relevant thematic rapporteurs, the Special Rapporteur on extra-judicial, summary or arbitrary executions, the Special Rapporteur on torture, inhuman or degrading treatment or punishment, the Chair-Rapporteur of the Working Group on Arbitrary Detention, and the Working Group on Enforced or Involuntary Disappearances issued a statement endorsing the need for a full-fledged UN investigation.
Over the past eight years, there have been two Special Rapporteurs on “the situation of human rights in the DPRK,” whose reports, in the absence of any cooperation by North Korea, have grown more and more blunt. For the first six years, the Rapporteur was a Thai professor of constitutional and international law, Vitit Muntabhorn. The current Rapporteur, as noted above, is Marzuki Darusman, the former Attorney General of Indonesia. Both would have made superlative interlocutors for a human rights dialogue with North Korean officials, an approach that both the member states and the UN would have preferred. But North Korea stiff-armed them both, just as it had done with the UN Special Rapporteur on the right to food six times previously, even when UN humanitarian agencies were providing famine relief and food aid to almost a third of the North Korean population.
Frustration at DPRK non-cooperation is evident in the successive reports of the Special Rapporteurs. In his last report to the General Assembly, Professor Muntarbhorn termed the DPRK violations sui generis (in their own category). He raised the issue of state responsibility and personal accountability for those violations, and called for a greater mobilization of the UN system in its totality to attempt to deal with those violations. Following Darusman’s appointment, it was hoped that, given Indonesia’s long-standing relations with North Korea dating back to the founding of the Non-Aligned Movement, the DPRK might be willing to engage in dialogue. But Pyongyang continued to stone-wall and Darusman had little choice but to pick up where Muntarbhorn left off.
To an April 2012 conference in Washington organized by the Committee for Human Rights in North Korea, Darusman conveyed his willingness to consider of a full-fledged UN inquiry, preceded by a comprehensive review of all the previous UN reports and resolutions on North Korea. His 12-page report to the HRC in March 2013 laid out a clear and compelling case for a full-fledged UN investigation. A meticulously footnoted 20-page annex reviews some 60 UN documents, covering almost a decade, in the nine areas specified above, starting with an account of violations of the right to food. This is the comprehensive review that the Special Rapporteur wanted to precede the formation of a CoI and is the basis for what the High Commissioner referred to in her call for a “long overdue” in-depth inquiry into one of the worst human rights situations in the world.
Along with the support of the relevant UN officials, the creation of a CoI requires that one or more of the member state sponsors of the resolution seek to include the CoI provision. The primary co-sponsors of the North Korea resolution are the EU and Japan. Recently, the Japanese government met quietly with Chinese and North Korean officials regarding better accounting for the Japanese citizens kidnapped and secretly taken to North Korea in the 1970s by agents of the DPRK—an obvious criminal act under international law. Apparently, the Japanese decided that “quiet diplomacy” was not yielding results, so they requested the EU co-sponsors to seek a public investigation via a CoI. Strong opposition by South Korea or the US might have derailed the initiative. But such opposition was out of the question. So the CoI provision was included in the resolution passed by the HRC.
As with the approach to the North Korean human rights issues by the Special Rapporteurs, the history and consequence of North Korean stone-walling on human rights is also reflected in the growing number of member states voting for the resolutions that recognize and condemn DPRK human rights violations. Each and every year at the HRC since 2003 and at the General Assembly since 2005, the number of “no” votes and “abstentions” have dwindled to the extent that in 2012, the North Korea human rights resolutions were adopted by “consensus” at both the UN bodies. At the current HRC session, the only member state to speak out against the creation of a CoI and disassociate itself from the consensus decision was Venezuela.
But overwhelmingly, the most important factor explaining the creation of the CoI is the steady accretion over the last decade of testimony from the growing numbers of North Korean refugees who fled to China and then made their way to South Korea, where they have told their heart-rending stories to journalists, scholars and human rights investigators.
Once the Commission of Inquiry is Established
Once up and running, the inquiry into the DPRK violations will face a number of challenges. Such UN investigations are usually mandated to deal with a recent large-scale massacre or a recent series of inter-related severe violations. For North Korea, the CoI is mandated to establish the factual record on a wide-ranging number of violations, all of which are ongoing, but which date back decades to the 1970s for the abducted Japanese and South Korean citizens, and even to the Korean War for several thousand South Koreans who were chained and forced to march to the North during the North Korean army’s retreat from Seoul in the face of MacArthur’s’ advance.
To illustrate the fact-finding challenges facing the CoI, taking one of the nine patterns of severe violations that I am most familiar with—the slave labor political prison camps—these prison camps are moving targets. North Korean refugees recently arrived in Seoul (termed “defectors” in South Korea) from the areas of Hoeryong, North Hamgyong Province and Bukchang, South Pyong-an Province, claim that Camp 22 has been closed and the political prisoners transferred to other camps, and that Camp 18, has been substantially dismantled. But there is no first hand testimony on this from former prisoners or guards at these camps. Satellite imagery of other prison camps show new construction and seeming expansion. But there are not yet North Korean eyewitnesses accessible to investigators in South Korea who can confirm, verify or detail the new construction or suspected expansion seen in the most recent satellite photographs.
The oft-cited round number of estimated political prisoners in the slave labor camps—200,000—was originally provided by defecting North Korean prison and state security officials ten to fifteen years ago. But by all former prisoner accounts, the camps have staggeringly high rates of deaths-in-detention. The total number of prisoners has almost certainly declined, as, in the absence of large-scale purges of the party, the army or the government ministries (that we would almost certainly find out about), it is unlikely that the number of new deportations to the camps matches the extraordinary rates of death-in-detention over the last decade or so. Similarly, while we know that very large numbers of prisoners in the camps are there by virtue of “guilt-by-association” for the real or imagined political misdemeanors of their relatives, we don’t know to what extent current deportations to the camps are by virtue of “guilt-by-association.” Similarly, two of the camps—Camps 15 and 18—had “re-revolutionizing” or “re-education” zones from which prisoners were eligible for release, often after three to ten years of forced labor. Much of our information about the camps comes from former prisoners released from these zones who subsequently fled North Korea to China and South Korea. But there are no known releases from the camps since 2008. Thus, we don’t know if releases are ongoing, or if the former “re-revolutionizing zones” have been converted to “total control zones” where the prisoners are consigned to forced labor until death. The CoI will have to sort out the recent information on these matters.
The HRC resolution also highlights violations of the right to food. This is the first of the nine subject areas mandated for the CoI. There is much less jurisprudence and scholarly literature on policy-induced or policy-driven famine as a crime against humanity compared with violations such as extra-judicial and summary executions, or rape as an instrument of repression. Notwithstanding, the current miasma in both North Korean agricultural policy and international food policies toward North Korea, the CoI has a considerable opportunity challenge here as it is tasked with making recommendations to both the DPRK and the international community. Both North Korean food production policy and the international response to the DPRK’s chronic food shortages are in considerable disarray and fully merit forthcoming examination.
It may turn out to be not very difficult for the CoI to determine that some of the severe violations in North Korea constitute crimes against humanity. Such a finding will almost certainly make its way into the North Korea resolutions at the HRC and General Assembly. But what follow-up actions would the CoI then recommend to the international community in consequence? And how would recommendations to North Korea differ from the recommendations already made countless times previously? Further, if the DPRK strenuously rejects unanimous resolutions from the UN Security Council on its nuclear weapons and missile tests, why would it heed recommendations from the HRC or General Assembly?
Still, there is room for some hope that international recognition and condemnation that crimes against humanity are being committed against its citizenry, will, in the long run, encourage North Korean authorities to realize that this is an issue they must tackle and resolve if they choose to want the respect of and normal relations with the international community. In the meantime, the forthcoming CoI will be an investigation and analysis of North Korean violations of much higher stature and undertaken with much greater resources than has been previously possible by scholars, journalists or NGOs. The CoI’s report will be the definitive account and a solid basis on which to build future policies toward North Korea.
 The Concert of Europe (or Congress System) was established after the Napoleonic Wars (1815) and lasted through the outbreak of World War I (1914), as a balance of power system in Europe. Its founding powers were Austria, Prussia, the Russian Empire, and the United Kingdom.
 UN News Centre, January 14, 2013.
 Elie Wiesel, Vaclav Havel and Kjell Bondevik, The Failure to Protect: A Call for the UN Security Council to Act in North Korea, DLA Piper US LLP and U.S. Committee for Human Rights in North Korea, October 30, 2006, http://www.dlapiper.com/files/upload/North%20Korea%20Report.pdf.
 David Hawk, Concentrations of Inhumanity, Freedom House, May 2007, http://www.freedomhouse.org/sites/default/files/ConcentrationsInhumanity.pdf.
 North Korea: A Case to Answer—A Call to Act, Christian Solidarity Worldwide, June 20, 2007, http://dynamic.csw.org.uk/article.asp?t=report&id=35.
 Such “country specific” Special Rapporteurs are volunteers selected by the President of the Human Rights Council from nominations put forward by the member states and Office of the High Commissioner for, possibly, two three-year terms of office, if their mandates are annually renewed by the HRC. The Rapporteurs deliver two oral and written reports each year—one to the Human Rights Council and the other to the General Assembly. They are supported by a staff person at the High Commissioner’s Office who typically supports two or three different Rapporteurs.
 UN member state cooperation with the UNO in the field of human rights is actually one of the explicit provisions of the UN Charter.
 Each year, the UN Secretary General also reports to the General Assembly on all UN relationships with the DPRK—security issues and threats to the peace addressed by the Security Council, the work of the UN humanitarian agencies within North Korea, as well as the actions by the Council and General Assembly in the field of human rights.
 UN Doc No. A/HRC/22/57, February 1, 2013.
 China, Russia, and Cuba would certainly also vote no or disassociate themselves from the “consensus” if afforded the opportunity. But this year all three countries were rotated off of the Council, which is why human rights advocates and the member states seized on this year’s session to push ahead.
 See Randy Ireson, Agricultural Reform Again—or Not, 38 North, November 15, 2012, http://38north.org/2012/02/rireson020812/.
 At a Freedom House press conference in Washington several years ago, Prof. David Scheffer, the first US Ambassador for War Crimes, called this question a “no-brainer.”