Toward ending impunity in North Korea
Toward ending impunity in North Korea
WRITTEN BY SAM BARON
17 March 2021
Seven years ago this month, a United Nations Commission of Inquiry (COI) Report on Human Rights in the Democratic People’s Republic of Korea (DPRK) determined that war crimes and crimes against humanity had been committed in North Korea and that such crimes were systematised by policies established at the highest level of the state.
The COI Report, the first United Nations effort to thoroughly document the egregious human rights violations committed by the North Korean state against its people, placed a spotlight on the almost unimaginable extent of abuses committed within the country. The crimes documented in the report, among which include extermination, murder, enslavement, torture, imprisonment, rape, and forced abortions, were according to investigators at the time, abuses carried out “on a scale unparalleled in the modern world”.
Of particular concern to UN investigators were the abuses committed within North Korea’s prison camp system, where prisoners are routinely tortured, coerced into performing hard labour, and subjected to other forms of degrading and inhuman treatment including forced starvation. Although the exact number of those detained within the country’s prison camps is unknown, figures from the US State Department and non-governmental organisations (NGOs) estimate that there could be as many as 80,000-130,000 people in camps designated for both ordinary and political prisoners.
While some argue that universal jurisdiction is a flawed method of accountability, it remains an indisputably concrete tool to apply pressure on the Kim regime and bring further attention to the heinous crimes committed against the North Korean people.
In a separate inquiry conducted by the War Crimes Committee of the International Bar Association, which investigated abuses specifically committed within the prison camp system, it found that there was enough credible evidence to charge Kim Jong Un and other individuals in his regime with 10 internationally recognised crimes against humanity. Or in other words, all possible crimes against humanity currently listed in the statute of the International Criminal Court (ICC) with the exception of apartheid. Thomas Buergenthal, a Holocaust survivor and former judge on the International Court of Justice who heard evidence for the International Bar Association’s inquiry, said that based upon the available evidence, the conditions inside of North Korea’s prison camps are "as terrible or even worse" than the Nazi death camps of the 20th century.
In view of the severity of the state-sanctioned abuses committed by the Kim regime, the principal recommendation of the COI report was that the UN Security Council should immediately refer the situation to the ICC. The report particularly stressed that criminal accountability for grave crimes should be pursued with the utmost urgency. Yet, it never happened. In 2017, an independent working group formed by the United Nations Human Rights Council to explore accountability options for the severe abuses documented in the COI report soberingly concluded that “no viable options for accountability exist or have been used in the DPRK, and that a fundamental reform of its justice system is required”.
In the absence of credible domestic mechanisms, most traditional routes to accountability at the international level run through the UN Security Council (UNSC), which requires the unanimous support of all five permanent members, including China and Russia. Both countries have a long track record of impeding international justice at the UNSC through the exercise of their veto power. Other methods of accountability, such as the establishment of an international or hybrid tribunal, seem equally unattainable, as both require the cooperation of the state in question, and also the tacit approval of the UNSC to even be established.
Continued impunity
The inability of the international community to punish the perpetrators responsible for the grave crimes committed by North Korean authorities has emboldened the Kim regime to commit further abuses both within and outside of its prison camp system. A recent report by the UN Office of the High Commissioner for Human Rights (OHCHR) clearly documents that North Korea still routinely engages in torture, wrongful imprisonment, and other systematic and widespread abuses that may constitute crimes against humanity. Despite claims made by the regime that the prison camps do not even exist, the report highlights the severe impact of forced labour on detainees — which is handed down to everyone held in the country’s short-term detention facilities or long-term prison camps.
Even more worrying is new evidence that suggests the Kim regime may be expanding its prison camp system. Recent satellite imagery and reporting from the DailyNK, a North Korea-focused media organisation based in Seoul, indicate that the number of prisoners in the camps has increased significantly in the past year. In many areas, several new camps have reportedly been established, while others may have expanded to increase their capacity for more prisoners. Since the outbreak of COVID-19, North Korean officials have sent violators of pandemic-related quarantines and other restrictions into the camp system on charges such as “harming the national economy” and “violating party policy”. And while COVID-19 may help to explain the relative increase of prisoners held in the camps, other signs point to a broader crackdown on dissent.
North Korea recently enacted an “anti-reactionary thought law,” and is reportedly imprisoning violators of the law en masse within the prison camp system. The decision to enact the law can be broadly interpreted as targeting non-conforming citizens and deterring others from ideologically breaking from the regime. At the recent Eighth Workers’ Party Congress, Kim emphasised the need to get rid of “every form of anti-socialism, non-socialism, sectarianism, bureaucracy, corruption, tax evasion and all kinds of criminal acts” — perhaps alluding to the leadership’s willingness to punish those who do not conform to wishes of the state.
Universal jurisdiction
As impunity in North Korea continues unabated, one overlooked avenue for accountability, underlined by a legal principle known as universal jurisdiction, may prove to be the only politically tenable option available to pursue justice. Universal jurisdiction is a unique legal concept that allows foreign courts to exercise criminal jurisdiction against individuals accused of grave international crimes. The principle applies regardless of the nationality of the accused perpetrator, or where the crime was actually committed. As a result, the principle is increasingly being used to apply pressure on those responsible for committing international crimes.
Although universal jurisdiction can only realistically hold perpetrators to account if the individual enters the territory of the state pursuing a case, the legal process has been surprisingly effective at bringing attention to war crimes, crimes against humanity, and other gross violations of international humanitarian law, even if cases are ultimately rejected by domestic courts. For instance, in 2010, a universal jurisdiction case filed in an Argentinian court against human rights abuses committed under the regime of Spanish dictator Francisco Franco triggered the exhumation of bodies that had been buried in mass graves.
Another universal jurisdiction case in 1998 led to the arrest of former Chilean dictator Augusto Pinochet in London. In fact, since the end of World War II, more than 15 countries have utilised the concept of universal jurisdiction to criminally prosecute individuals for crimes that took place outside their territories. States such as Argentina are better positioned than others to pursue universal jurisdiction cases — this is partly because, like many other countries, the principle is enshrined in its constitution. What makes the principle unique is that it is also enshrined in several key international human rights treaties, such as the UN Convention Against Torture, of which 170 UN member-states are a party.
Tomás Ojea Quintana, an Argentinian human rights lawyer who currently serves as the UN Special Rapporteur on the situation of human rights in North Korea, recently provided legal representation on a universal jurisdiction case filed in his home country. The case filed by Burma Human Rights Organisation UK (BHROUK) for possible state-sponsored genocide and crimes against humanity committed against the Rohingya minority in Myanmar, establishes precedent for other cases of similar severity to be pursued. Ojea Qunitana, who also served as the UN Special Rapporteur for the situation of human rights in Myanmar from 2008-16, recognised the ongoing failure of the international justice system and decided to take action. Given this recent development, it remains within the realm of possibility that universal jurisdiction cases could soon be filed to up the ante against the North Korean leadership.
International legitimacy?
While some argue that universal jurisdiction is a flawed method of accountability, it remains an indisputably concrete tool to apply pressure on the Kim regime and bring further attention to the heinous crimes committed against the North Korean people. As Kim Jong Un further attempts to legitimise himself on the world stage, most recently by requesting that the UN and state media refer to him as "president" rather than his traditional title of “chairman” — it behoves the international community to highlight the severe repression still ongoing inside of the country, and take all necessary steps currently available to bring about justice.
As the UN Human Rights Council convenes for its 46th session, member-states should commit to addressing the human rights situation in North Korea. As Human Rights Watch researcher Lina Yoon points out, a concrete way of doing this would be to propose a resolution that extends the mandate of Human Rights Council staff working on accountability — currently set to expire in March 2021. Another would be to propose a resolution that strengthens the mandate of OHCHR’s Seoul Office, a UN field presence which was established following the COI report to “collect, consolidate, preserve, and analyse evidence of the most serious international crimes and violations of international law”.
Entities including this office and NGOs such as the Database Centre for North Korean Human Rights have spent the past several years collecting evidence of human rights abuses ongoing within North Korea and building case files against the alleged perpetrators in the hopes that the international environment may eventually decide to move forward with international prosecutions. After all, as the recent OHCHR report emphasises, “crimes against humanity don’t have a statute of limitations”.
DISCLAIMER: All views expressed are those of the writer and do not necessarily represent that of the 9DASHLINE.com platform.
Author biography
Sam Baron is an MPhil Candidate in Politics and International Studies at the University of Cambridge. He previously served on the Myanmar Country Team of the United Nations Office of the High Commissioner for Human Rights (OHCHR). Image credit: Flickr/UN Geneva