Guest Post: Accountability Impact or Impasse? The Curious Case of the North Korean Inquiry

[Catherine Harwood is a PhD candidate at the Grotius Centre for International Legal Studies at Leiden University]

After over a decade of reports alerting the UN Human Rights Council (HRC) to serious human rights violations in the Democratic People’s Republic of Korea (North Korea), in March 2013 the Council decided to establish an international commission of inquiry to investigate those allegations and to ensure “full accountability, in particular where these violations may amount to crimes against humanity”. Denied access to North Korea, the Commission travelled to several countries to hear from victims and witnesses. In a strong commitment to transparency, the Commission held public hearings and made many testimonies and exhibits available online. A year later, its report recorded a litany of serious human right abuses. The Commission found reasonable grounds to believe that North Korea had committed serious human rights violations and that many senior officials had committed crimes against humanity [para. 1225]. It issued a host of recommendations, including that the Security Council refer North Korea, a non-state party to the Rome Statute, to the International Criminal Court (ICC).

Although the Commission dissolved upon the delivery of its report, its accountability recommendations reverberated beyond the HRC and have remained on the intergovernmental diplomatic agenda. This contribution discusses some interesting features of the Commission’s findings and tracks the consequences of its report – some of which have been curious and unexpected – before offering some thoughts as to the impact of the inquiry in relation to the goal of ensuring accountability.

Commission’s Analysis of Crimes Against Humanity

Although the Commission’s findings are not binding and lack formal judicial authority, its legal analysis is worthy of reflection. Much has been written about the ‘discursive power’ of international organizations and their (at least informal) contributions to the development of international law. As argued by Johnstone, the discursive authority of international organisations “serves not only to persuade states to behave in accordance with accepted norms, but also to sharpen those norms and thereby shape the climate within which future behaviour will occur” (at 122).

Among the Commission’s most significant findings is that senior North Korean officials “committed crimes against humanity by implementing actions, decisions and policies known to have led to mass starvation” [para. 1115]. The Commission found that starvation-related deaths formed the basis of the crimes against humanity of murder and extermination, while ‘other inhumane acts’ were committed when people suffered great physical and mental harm [paras. 1117, 1128 and 1131].

When setting out the international legal framework, the Commission used “definitions set out by customary international criminal law, which to a large extent overlap with those later expressed in the Rome Statute” [para. 65]. Where definitions diverged, it adopted a “lowest common denominator” approach, so as to capture the widest ambit of criminal conduct [note 1541]. In outlining the contextual elements of crimes against humanity, the Commission discussed whether the ‘policy requirement’ in the Rome Statute is recognised in customary law. Article 7(2)(a) provides that a widespread or systematic attack against a civilian population must be “pursuant to or in furtherance of a state or other organizational policy to commit such attack”. The Commission noted that it was debatable whether the policy requirement is part of customary law, but concluded that in any event, violations were committed systematically by officials, which “indicates the existence of an underlying policy” [note 1542]. The Commission’s finding of policy from the systematic nature of the attack was similar to the view of the majority of Trial Chamber II in Katanga that ‘systematic’ attacks presume the existence of a policy.

The Commission observed that a policy “does not have to be incorporated in a written document or formal statement” [note 1542]. This is in line with recent ICC jurisprudence that a policy need not be formally adopted and that an attack that is “planned, directed or organised” will suffice. However, other aspects of the Commission’s report suggest that it did view ‘policy’ as an official plan of action. The Commission reported that “it is sufficient that the senior officials setting the State policy are fully aware of the direct causal relationship between the State policy and the harm done” [para. 1135]. This point seems straightforward, as both noble and nefarious formal policies may be couched in goals such as national security or economic development. But the Commission went on to observe that a policy need not be “driven by a purpose of harming a civilian population” [para. 1135] as the Rome Statute “demands that the attack must be pursuant to State policy. It does not require that the State policy must pursue the attack” [note 1619]. This observation makes sense in respect of formal bureaucratic policies, but not if ‘policy’ is conceived more broadly as the planned or coordinated commission of prohibited acts.

Turning from the contextual elements of crimes against humanity to underlying acts, the Commission considered that a broad range of acts could amount to extermination, including deliberate provision of misleading information to humanitarian actors; failing to request international aid; and preventing delivery of aid in time of famine [paras.1117-1123]. Although scholars such as Rottensteiner have posited that denial of humanitarian assistance could amount to a crime against humanity, this is the first time that such findings have been made by an international fact-finding mission. The Commission also discussed the mental elements of extermination as a crime against humanity. Scholars such as Kearney have suggested that recklessness suffices under customary international law. Though aware of this debate, the Commission concluded that perpetrators must have a “calculated awareness” that conditions will cause death in the ordinary course of events” [paras. 1118 and 1029], consistent with ICC jurisprudence. In short, the report offers valuable analysis of how violations of social, economic and cultural rights may amount to crimes against humanity, and contributes to the chorus of voices in scholarship and jurisprudence recognising that these types of atrocities can be characterised as international crimes.

United Nations Follow-up to the Commission’s Report

The Commission’s report is far from gathering dust. Upon its receipt, the Human Rights Council denounced the violations and resolved that the General Assembly should consider submitting the report to the Security Council for “appropriate action”, including possible referral of North Korea to “the appropriate international criminal justice mechanism, and consideration of the scope for effective targeted sanctions against those who appear to be most responsible for crimes against humanity”.

The General Assembly has also paid attention to the Commission’s report. It was discussed during side-events at its 69^th session and a draft resolution prepared by the European Union and Japan recommended that the Security Council refer North Korea to the ICC. According to media sources, North Korea sent a letter to UN delegations proposing an alternative resolution commending its “free compulsory education system and free medical care.” On 18 December 2014, the General Assembly resolved to submit the Commission’s report to the Security Council and encouraged it to “take appropriate action to ensure accountability”, including referring North Korea to the ICC and issuing targeted sanctions against those who may be most responsible for crimes against humanity.

The Commission’s report has also found some traction with the Security Council. In April 2014, the Commission met informally with several members of the Security Council to discuss the report. On 5 December 2014, ten members of the Council, including the UK and the US, formally requested that the human rights situation in North Korea be placed on the Security Council’s agenda. While an ICC referral seems unlikely in light of resolute lack of support from China and possibly also Russia, media reports suggest that the report will at least be discussed by the Council as a result of the recent letter supported by so many of its members.

The Evolving Impact of the Commission’s Report

While few hard consequences may result from the Commission’s report, it would be erroneous to assess its impact by this alone. North Korea faces intense diplomatic pressure as a result of the inquiry. Botswana has terminated its diplomatic relations with North Korea and the US urged North Korea to take “concrete steps” to improve its human rights situation. According to media reports, South Korea agreed to host a field office of the UN High Commissioner for Human Rights that will continue to investigate North Korean human rights violations, although at the time of writing, its establishment remained precarious.

Although North Korea dismissed the Commission’s report as “fabricated and invented by the forces hostile to [North Korea], defectors and other rabbles”, it does appear to have had an impact on the state’s behaviour. North Korea is participating in international diplomacy and engaging with at least rhetoric of human rights to a greater extent. Pyongyang dispatched its foreign minister to the General Assembly for the first time in fifteen years, also only the third time in the UN’s history.

North Korea sought to counter the Commission’s narrative by issuing its own human rights report, described as a “comprehensive and detailed report on the history of the Government’s efforts for protecting and promoting human rights, realities, obstacles to its efforts in ensuring human rights, and status of implementation of its international obligations.” The report ostensibly follows the structure of other human rights reports, outlining geopolitical history, human rights law, and governmental efforts to ensure human rights. A media briefing of the report in October marked the first admission from a Government official as to the use of “reform through labour” camps, although the official denied the existence of prison camps. The North Korean report does not respond to violations found by the Commission, and could be interpreted as denial of human rights violations. Yet it should not be rejected entirely as mere propaganda. The timing of the report and associated diplomatic engagement invites the hypothesis that North Korea is responding, at least indirectly, to sharpened pressure levelled at it through UN channels as a result of the Commission’s report. Risse writes that “strategic argumentation” can lead to “argumentative self-entrapment”. Justifying one’s position by reference to the international legal framework implicitly accepts the legitimacy of that framework. North Korea’s demonstrated acceptance of the legitimacy of international human rights law should be cautiously welcomed.

A curious side-effect of North Korea’s increased engagement in international diplomacy is that it has not only sought to rebut allegations of its own human rights violations, but has tried to turn the spotlight of scrutiny onto other states, particularly the US. North Korea labelled the US a “human rights tundra” in response to a recent race relations controversy, and following the US Senate Intelligence Committee’s report on the use of torture by the CIA, North Korea wrote to the Security Council, requesting that the CIA’s use of torture be added its agenda. While the agenda might not be adjusted, North Korea’s letter certainly made headlines. Its decision to defend itself against allegations of human rights violations through international diplomacy perhaps emboldened North Korea to go further and strategically engage with other human rights issues, giving rise to unintended consequences for one of its loudest critics.

Concluding Thoughts

The Commission’s inquiry into North Korea has produced a range of outcomes relevant to accountability. The Commission’s decision to make witness testimonies accessible online has allowed those victims to have a global voice. After almost a year of lobbying, the situation of human rights in North Korea is on the Security Council’s agenda. The Commission’s report, along with Commissioners’ determined efforts to widely disseminate its findings and recommendations, has helped to build pressure for North Korea to comply with its human rights obligations. These all count as successes, but in light of states’ duties to effectively investigate, prosecute and remedy human rights violations, they alone do not fulfil the goal of ensuring accountability.

While it may be debated how accountability is to be best achieved, the bottom line is that violations must cease. At present, this has not been achieved. But any ensuing failures regarding the establishment of accountability processes do not rest on the shoulders of the commission. Rather, they are borne by those who possess the competence and the responsibility to take action: in the first place, North Korea; and secondly, the international community, including collectively through the UN, as reflected in the concept of ‘responsibility to protect’, which is of enduring relevance. Should the Security Council take a vote on the referral of North Korea to the ICC, a veto by Russia and/or China has been predicted. However, use of the veto in respect of a situation involving such serious and prolonged violations could well cost those states in their own diplomatic relations. Such a result would reveal the continuing politicised selectivity of international criminal justice, which might build further momentum to break down those barriers.

Finally, the inquiry has induced North Korea to engage in international diplomacy. The ‘Hermit Kingdom’ has come out of its shell. With its rudimentary affirmation of its commitment to human rights, efforts to encourage or induce North Korea to improve its human right record may, in time, find more fertile ground.