In March 2013 the UN Human Rights Council established an International Commission of Inquiry for North Korea. This action follows almost a decade of investigations by Special Rapporteurs on the situation of human rights in North Korea, as well as a wealth of reports by NGOs and other agencies. The Special Rapporteurs’ reports found evidence of “harrowing and horrific” human rights violations, and in February 2013 the current Special Rapporteur Marzuki Darusman called for a formal inquiry “to examine the issue of accountability for such violations as well as crimes against humanity”.
The Commission of Inquiry for the Democratic People’s Republic of Korea is mandated to investigate a range of human rights violations which have all been associated with North Korean prison camps. The Commission will look into alleged violations of the prohibition of torture and inhuman treatment; arbitrary detention; discrimination; violations of the rights to life, food, freedom of expression and freedom of movement; and enforced disappearances. The Commission is instructed to investigate “with a view to ensuring full accountability, in particular where these violations may amount to crimes against humanity.”
The Commission’s mandate is significant for several reasons. First, an inquiry into violations of the right to food represents a valuable opportunity to further explore states’ core obligations in respect of this right, and raises the possibility that its violation may amount to a crime against humanity. Secondly, the Commission’s mandate is the first to expressly refer to international crimes. While previous international commissions of inquiry such as those for Libya, Syria and Darfur assessed alleged violations in light of international criminal law, until now no mandate has expressly referred to this area of law. This second point leads to a third, more fundamental observation that the role of international commissions of inquiry seems to have evolved from an avenue for diplomatic dispute resolution towards ensuring individual accountability.
However, should the Commission consider that international crimes have been committed, it is not clear that this will lead to prosecutions. North Korea is not a state party to the Rome Statute, so proceedings may only be brought before the International Criminal Court through one of two ways. The first is through a complaint by South Korea for violations occurring on its territory, which would not respond to violations occurring in North Korea. The second is through a Security Council referral, which China is likely to block. In addition, the likelihood of domestic proceedings are obviously low, and there are many practical problems involved in applying universal jurisdiction, not the least of which is the execution of arrest warrants.
What might be the real-world effect of non-judicial findings by the Commission that international crimes have been committed in North Korea? Such findings might encourage North Korea to comply with international human rights standards, but this is unlikely in light of the state’s previous refusals to accept allegations of human rights violations. It may in fact further damage North Korea’s relationship with the UN. Should the Security Council determine that the situation is a threat to, or breach of, peace and security, the Commission’s findings could also pave the way for further sanctions against North Korea, which may act as an incentive for compliance. Finally, in the absence of viable avenues for prosecution, the Commission’s report may serve to hold North Korea symbolically accountable to the international community.