“This is a time for action. We can't say we didn't know.” These were the words of the Hon. Michael Kirby, Chair of the International Commission of Inquiry on the Democratic People’s Republic of Korea, following the release of the Commission’s report in February 2014. The Commission, established last year by the UN Human Rights Council, found that serious human rights violations had been committed by the state of North Korea, and that some violations amounted to crimes against humanity. The array of crimes almost reproduces article 7 of the Rome Statute: murder, extermination, enslavement, forcible transfer of population, unlawful imprisonment, torture, sexual violence, persecution, and enforced disappearance. In fact, the only crime against humanity that does not feature in the report is apartheid. The Commission concluded that “the gravity, scale and nature of these violations reveal a State which does not have any parallel in the contemporary world”. The details of human suffering are harrowing.
Beyond the factual dimension, the report’s legal implications are significant. The report finds that “international crimes appear to be intrinsic to the fabric of the state” (para. 1164). Utilizing the concept of the ‘responsibility to protect’, the Commission found that North Korea manifestly failed to protect its population from atrocity crimes and that the international community, through the UN, has the responsibility to protect North Koreans, including by ensuring accountability for international crimes. In short, the report is not only a factual account of atrocities: it is a call for action.
While the general call for accountability is not surprising, practical manifestations of this goal pose significant challenges. Any judicial or truth and reconciliation mechanism embedded within the DPRK’s domestic legal system requires state consent, which is not likely to be forthcoming. Chances of the UN establishing another expensive ad hoc international criminal tribunal – with no access to the DPRK – are slim. National jurisdictions may seek to prosecute DPRK nationals within their territories, including on the basis of universal jurisdiction, although that requires senior state officials to visit such states. Hence, the International Criminal Court (ICC) has been hailed by the Commission as the most appropriate judicial mechanism to respond to the atrocities.
However, there are significant jurisdictional and practical hurdles to an ICC investigation. As North Korea is not a State Party to the Rome Statute, referral of that situation to the ICC can only be made by the Security Council, whose vote is vulnerable to a P-5 veto. Neighbouring states Japan and the Republic of Korea, both States Parties, could self-refer pursuant to article 14 of the Rome Statute, but this would not enable the Prosecutor to examine crimes committed in the DPRK. In fact, the Prosecutor has already opened a preliminary examination in South Korea, but this is focused on military incidents. Moreover, the Prosecutor may only examine crimes committed after the Statute’s entry into force in 2002. This would omit from investigation the great famine of the 1990s, which was instigated and amplified by state policies and resulted in the deaths of over one million people. Finally, arrest warrants issued for suspects based in the DPRK cannot be executed without access to the region.
The upshot is that any prosecution is unlikely to respond comprehensively to atrocities in North Korea. However, many other steps can be taken by states, international organisations and NGOs to address the situation of human suffering. The Commission offered many other recommendations for responses aimed at reconnecting the people of North Korea to the outside world, improving the population’s wellbeing and ensuring that human rights are recognised and protected. Rather than being overly preoccupied with formal accountability, the international community should accord priority to these goals and seek to realize them through peaceful means. Such actions may make a meaningful difference to the people of the DPRK, especially in light of the current challenges to ensuring criminal accountability.