Despite overwhelming support at the start of its mission, there is no guarantee that the recommendations of an upcoming UN-backed report on human rights violations in North Korea will receive the necessary support.
In March 2013 the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea began a year-long endeavor to investigate human rights violations by the North, initiated “with a view to ensuring full accountability, in particular for violations which may amount to crimes against humanity.”
The mandate of the UN Human Rights Council permits the COI to observe and make recommendations, and its foundation received no opposition from UN member states.
“That is unusual in the UN system and I think it indicates the nation-states of the UN are looking to see a significant improvement in the human rights situation in North Korea,” commission chair Michael Kirby said.
Still, Kirby said that any steps taken by the UN against North Korea will be subject to action by member states and not the commission.
“In the end the inquirers present their report and it’s over to politicians and officials and others to get together a program,” Kirby told NK News, adding that, “our recommendations will be indicating the steps that we think should be taken and we will be trying to be of assistance to the international community.”
THE SEARCH FOR ACCOUNTABILITY
Kirby preferred not to speculate on the possible conclusions and recommendations in the final report prior to its publication. However, all indications from previous UN reports, as well as the public hearings and oral updates Kirby has provided point toward the conclusion that North Korea has violated the fundamental human rights of its citizens as outlined in the UN charter.
As per other commissions, these recommendations will likely involve the COI urging that North Korea stop its human rights violations and cooperate with UN bodies, and will likely recommend that the international community take action to punish North Korea for its violations.
The most significant action would be the recommendation that the UN Security Council refer the case to the International Criminal Court for prosecution, as was done by the 2005 COI on Darfur.
A referral to the ICC can only occur if the COI concludes that North Korea has likely committed crimes against humanity. As North Korea is not a signatory to the Rome Statute which established the ICC, such a referral can only be passed by the Security Council.
OPPOSITION FROM CHINA
Even though the resolution establishing the COI passed the UN General Assembly and the HRC unanimously, the COI’s investigations have not been met with the same level of cooperation from the North’s long-time ally and UN Security Council permanent member China.
During its investigations Kirby and the COI asked that they be allowed collect information on North Korean citizens residing in China but the Chinese government denied their entry multiple times.
The fact that China denied access to the COI indicates a possible fear that they themselves may be implicated in the final report into North Korea’s human rights violations and, therefore, it seems likely that China will veto any referral to the ICC.
China has received condemnation in the past for its role in repatriating North Korean refugees back into the DPRK as per a memorandum of understanding with North Korea, even with the knowledge that these civilians may face imprisonment, torture and even execution.
Kirby confirmed to NK News that the issues involving China and the treatment of North Korean refugees in their territory will be reviewed in the final report.
It is the well-being of these North Koreans, specifically children, in Northeast China that was a primary matter of concern for the COI.
“It is estimated variously that we are talking of 20 or 30,000 such children, they are completely innocent of any wrongdoing,” Kirby said, adding that “whatever the international community feels should be done to others; there is a special need for the protection of rights for these children.”
Another barrier lies in the ICC mandate stipulating that a case prior to the ICC’s inception in 2002 cannot be retroactively prosecuted .
This would mean that any possible crimes against humanity committed prior to 2002, including during the severe famine of the mid-’90s, would be beyond prosecution.
These possible barriers have not prevented the COI from compiling their report and they already have plans to continue working with UN member states to further improve human rights in North Korea.
“Sometimes the international community itself is not entirely clear what should be done and therefore we will be endeavoring to give a number of leads on what might be the way ahead,” Kirby said.
The full transcript of the interview, conducted in December, is below.
Interview transcript: Chairperson Michael Kirby, United Nations Commission of Inquiry on Human Rights in the DPRK
NK News: The decision for a UN COI into North Korea’s Human Rights abuses passed unanimously in March (2013) and, as you have mentioned previously, there was no criticism during the first hearing of the COI’s initial findings. How optimistic are you that the COI findings in March will be received with a similar reaction by the international community?
Michael Kirby: I’m hopeful that the report, which we are now in the process of preparing will contain so much information and with so many references to the testimony of believable witnesses that the international community will accept what we say as being well-founded in fact and evidence and well-founded in international law.
NK News: What did the commission uncover that was not previously known about human rights abuses in North Korea?
Kirby: There is, of course, a great mass of information in the international arena; in part in the organs of the United Nations, in part within the successive reports of the Special Rapporteur of the United Nations, and in part in the international scholarly community and in NGOs. What was different about the COI was that we decided from the beginning that we would embark on a process of public hearings; that is not the usual way by which commissions of inquiry of the United Nations operate but it is the way that we have adopted and it has meant that we have conducted public hearings in Seoul, Tokyo, London and Washington, D.C. The testimony that we gathered in those places is now online; it is available both in oral and in transcript form. It permits the international community to assess the witnesses and to make their own assessments as to whether they are telling the truth. I believe that overwhelmingly they emerge as truthful, courageous and determined witnesses who are seeking to improve the human rights situation in North Korea.
NK News: So the purpose of conducting those public hearings and changing that way of operating as a COI was to further highlight the issue and to further allow people to make their own assessments of the defector interviews. Is that correct?
Kirby: My own experience of 34 years as a judge serving in various courts in Australia has taught me that the human mind searches for concrete examples rather than broad generalities or detailed background, and the testimony of the individuals is often so stark, so vivid, so dramatic and so shocking that it effectively appeals to the government of the DPRK to respond and to the international community to make sure that they do respond.
NK News: Apart from expert and defector testimony, what evidence is the COI collecting for use in the final report?
Kirby: The commission has also gathered quite a lot of confidential evidence of people who have relatives still living in North Korea, who were in positions of high authority in North Korea, and for reasons of their own safety and that of their families are not willing to identify themselves or to be giving evidence that can be directly attributed to them. As well as that, we have a great mass of information from the UN archives and also a lot of printed material from scholars who have spent their whole lives studying North Korea. There isn’t an enormous amount of information out there but the task of the commission is going to be to digest all this and to synthesize it and present it in an approachable way that is readable, that communicates the stories – often very vivid and frightening – of the people who can speak of what exists in North Korea and then to shine a light on that country and its society and to draw attention to a number of conclusions and recommendations that we will gather together in a digestible form, that is not too long and able to be digested, including by the international media. There isn’t, in fact, a lot of serious writing on North Korea in the international media. The international media tends to highly personalize and oversimplify and focus on personalities but the task of the COI is to gather a great deal of matter that isn’t in that category, that isn’t about the well-known personalities, but is about what happens in prison camps, what happens in food distribution, what happens in the ordinary accountability of low-level and medium-level officials in the DPRK and all of that we are gathering as our mandate from the Human Rights Council requires us to do.
NK News: Dr. Andrei Lankov, one of the foremost experts on North Korea, wrote a piece earlier this year stating that human rights are improving in North Korea. What’s your view on this?
Kirby: There is evidence of improvements in some particular respects and where that evidence is convincing we have always acknowledged it. We did so in our oral update to the Human Rights Council earlier this year and more recently to the General Assembly. Our job is to approach our task without animosity towards anybody and without pre-judgment and to give credit where credit is due. Nonetheless, I think it has to be said that evidence of improvements in human rights constitutes small pickings. There are particular matters such as the signature to the disabilities convention and what appears to be some improvement in the position of people with disabilities in North Korea and there’s also evidence of the distribution of more cellphones, such that there are now about 2 million cellphones, but on the other hand the cellphones don’t have access to the Internet.
Most people in North Korea, unless they are members of the elite, are not able to get access to the Internet and they constitute, effectively, access to a national intranet which has some advantages in linking citizens together and spreading information, but the country is still very much a closed and controlled society in which the ordinary human rights of access to information and an ability to express oneself to fellow citizens and thereby to take part in an ordinary civil society are not really available. So though there are some indications I don’t think they should be exaggerated. I’m not saying Prof. Lankov does exaggerate them, but it is important to keep your feet on the ground.
NK News: What do you hope the UN will do with your findings? In your opinion, what would be the best possible action spurred by your report?
Kirby: Well, that will depend on the nation-states that are members of the United Nations, as in one’s own country when an inquiry takes place, in the end the inquirers present their report and it’s over to politicians and officials and others to get together a program, consider the report and then decide what to do but we will be making recommendations, our recommendations will be indicating the steps that we think should be taken and we will be trying to be of assistance to the international community.
It would be easy for us to simply give our report and wash our hands and go on with our ordinary lives but sometimes the international community itself is not entirely clear what should be done and therefore we will be endeavoring to give a number of leads on what might be the way ahead and they will be expressed in various alternatives and that is exactly what we are working on at the moment, so it’s premature to indicate what they might be. The report has to be delivered to the Human Rights Council and the current date for the presentation is the 17th of March.
NK News: It has been stated that the COI has already committed itself to forward the final report to appropriate UN bodies for follow-up. What bodies aside from the Human Rights Council will that include?
Kirby: The mandate that we received from the Human Rights Council required us to secure the support of the UN agencies and all UN bodies, so we will be doing that. We have called on the Secretary General of the UN, we have called on numerous senior officials and agencies of the UN that have either a presence in the DPRK or have activities that take them into the DPRK or gather information on what’s happening in the DPRK. We have also reached out to the Human Rights Council, we have reported to the General Assembly and it will be a matter for others including, for example, the UN Security Council, whether they want a briefing from the COI, but all of these lie in the future. Our report has to be written effectively by the end of January, and that is consuming a tremendous amount of energy both by the secretariat and by the commissioners and we are here in Geneva in a very cold and miserable time of the year. We will be back here in January when it will be even colder and, I understand, more miserable. That’s a good working environment and we are getting on with our task that the council on Human Rights requires us to do.
NK News: The COI requested access to China but was denied. What evidence and information did the commission hope to collect while in China?
Kirby: The evidence in the hearings indicated, as is also revealed in many other studies and earlier reports of the Special Rapporteur, that a large number of people have left North Korea and have left it through Northeastern China. There is a large community of citizens of the DPRK who are there either making new homes for themselves within the ethnic Korean population or with Chinese spouses or awaiting movement to other countries from there. The numbers that are involved and have been involved are a matter of dispute but it gets up to hundreds of thousands in some estimates. Certainly there is a large community there of women with children, often children with Chinese fathers who cannot easily be registered in order that they can secure ordinary primary education. It is estimated variously that we are talking of 20 or 30,000 such children; they are completely innocent of any wrongdoing. They are not securing proper protection for their right to education, their mothers can often not easily register them because doing so will expose them to the risk of being handed over to the DPRK and sent back to North Korea with or without their children, and therefore it is in a sort of no-mans-land.
Whatever the international community feels should be done to others; there is a special need for the protection of rights for these children. Had we been able to go to that area and to Beijing (as) we wished, I would think, to take up with the government of China the way in which that particular problem and others could be addressed so that’s just one example of the kind of issue that is agitating the COI out of the sense of the human rights of the children of mothers who have left North Korea in search of a better life.
NK News: China has a history of ill treatment towards and indeed repatriation of North Korean defectors who have fled the country. Is this something the COI was or is looking at and by extension is there a possibility that China could be implicated in the findings on North Korea’s human rights violations?
Kirby: It’s true that there have been cases where many people who have left North Korea for a better life and have gone through China have been returned. There is a memorandum of understanding between the DPRK and China for such return and as well as you possibly know there has been a big building program building walls and fences and barbed wire to reduce the risks of people, during certain months of the year, being able to move across the rivers into China. There is some evidence that China is conscious of the particular problems of the North Korean population and to some extent China, which could have reacted differently at an earlier stage, has been a place of refuge for people moving from North Korea into that area of China. How one continues to provision of refuge and ensures particularly the protection of children who are completely innocent of any wrongdoing is something that is taking up a lot of our time and consideration but we will certainly be drawing that to the notice of the international community.
NK News: You have had requests for access to North Korea as part of the COI denied or ignored. Has there been any level of communication between North Korea, their representatives and the COI?
Kirby: On both occasions where I delivered the oral update to the Human Rights Council and General Assembly the representative to North Korea was present and responded to the report that we made. I approached and introduced myself to the representative from the DPRK at the General Assembly in New York and on both of those occasions the COI offered to meet representatives of the DPRK without preconditions and, under such terms, as they would suggest. We have no hostility toward the DPRK and we are simply endeavoring to report faithfully and honestly and independently what our testimony suggests is the case concerning human rights. So we have had in that sense direct communication with representatives of North Korea and perhaps significantly neither in the Human Rights Council nor in the General Assembly Third Committee did the representative of North Korea attack the Commission Of Inquiry. They realize we are just performing the duty to which we’ve been appointed under a resolution of the Human Rights Council, which was adopted without a vote.
The resolution adopted recently in the UN General Assembly and the resolution in the Human Rights Council establishing the COI were both adopted without a vote. That is unusual in the UN system and I think it indicates the nation-states of the UN are looking to see a significant improvement in the human rights situation in North Korea and our report is going to be indicating where the areas are where that improvement is necessary in order to meet the standards of the human rights treaties, many of which North Korea has executed, such as the International Covenant on Civil Political Rights, the Convention on the Rights of a Child and the International Refugees Convention. Correction, I don’t think North Korea has executed the refugees, I think China has executed the refugees convention.
NK News: After the report’s release there are many hypothetical reactions that the international community could do, obviously there’s a lot of sanctions on North Korea at the moment and sanctions could be enacted again in the future after the report comes out. Does the COI fear further sanctions placed on the country will increase the hardships on the population, as sanctions have done little to prevent human rights abuses and in some cases have had adverse effects on civilian populations?
Kirby: Well, that’s a matter that’s still under consideration. Of course one would always be concerned of the adverse affects on a population, particularly one that has suffered greatly, particularly one that has suffered in the area of food and the situation of starvation. There are still very high levels of stunting amongst newborn children in North Korea. That is a matter of great concern so there are many matters that have to be considered and we are considering them.
NK News: The COI is looking at possible crimes surrounding access to food. What is the COI trying to determine in this regard?
Kirby: The commission is required by its mandate to investigate a number of headings. One of those headings is the right to food. The right to food is expressed in the Universal Declaration of Human Rights and in the International Covenant on International Economic, Social and Cultural Rights. So what we have to do is measure what has been done by North Korea over the last 20 years in particular, and especially during the period described variously as the “Great Famine” or the “Arduous March,” and see whether or not what was done reached the standard that is imperative on the part of a government of any country to feed its population.
That is one of the primary duties of the government of every country, to feed its population and to make sure people don’t starve to death and, in particular, that people who are in the custody of the government, such as people in prisons or people in the armed services, are properly fed and there is quite a lot of evidence suggesting shortfalls in that respect which continue into the present time, so all we are doing is stating the standards, stating the evidence and measuring that evidence against the standards to make a conclusion and that’s exactly what we are required to do by the mandate from the Human Rights Council.
NK News: Will an assessment be made to the WFP that is currently operating in North Korea? There are a lot of restrictions placed on the food aid that they deliver; they don’t necessarily have control over where it goes.
Kirby: These are matters that are covered in our report, you are correct. The food agencies of United Nations have been severely restricted in access to particular areas of the country where normally providing food aid to any nation they would have minimum requirements of monitoring so that they make sure food is supplied in accordance with principles of non-discrimination and available to all people and not simply supplied to elites or not diverted into the private sector for resale at a profit for individuals. So monitoring is an essential requirement of food supply and it’s simply standard and a number of agencies which have been involved in food assistance have withdrawn from North Korea because they have reported that they attend at pre-arranged functions which are unconvincing to them and are not permitted to go to quite a number of the provinces of North Korea in order to monitor the distribution of the food supplied by international assistance.
NK News: Evidence suggests brutal authoritarian rule is a pivotal part of Kim’s power, so he seems unlikely to ease up. If the outcome of your report is that the DPRK is further isolated from the international community – is that good or desirable?
Kirby: It’s not good or desirable for any country to be isolated from the international community. One reads that the present Supreme Leader Kim Jong Un is a great advocate of the Internet and of cellphones. He himself spent some part of his life being educated in Switzerland, so he is a young person who would be very familiar with the generation that has grown up with these facilities, he would know that they introduce people to a lot of ideas and those ideas are sometimes challenging to the old order of things, but they are the way in which humanity progresses, especially in its understanding of human rights and, therefore, one still has hope and expectation that he would favor engagement with the international community. However, the fact of the matter is that engagement with the Internet and with outside sources of information, a capacity to travel, to meet other people is not easy.
It was noted in the charge levied against Mr. Jang (Song Thaek), the uncle of Kim Jong Un that he had dreamed impermissible dreams, but dreaming dreams is part of the nature of speculative humanity. Human beings do dream and it’s the dreams of human beings that led to the Universal Declaration of Human Rights and the dream following the terrible discoveries at the end of the Second World War and the shocking breaches of human rights, the dream that the United Nations would be established and that one of its core principles would be upholding universal human rights. At the time many people must have said, “Well, that’s just a dream,” but the fact is that the dream is in part becoming a reality and in part becoming a reality through bodies such as the Commission of Inquiry. We are helping to fulfill the dream that human beings everywhere will have their fundamental universal human rights declared, respected, enforced and, where deprived, rendered accountable before the international community.
NK News: What is your opinion from a human rights perspective on the arrest of Mr. Jang and the alleged public executions of his aides?
Kirby: We have no firm knowledge on that and I’m not going to comment on matters that only appear in the media. It’s still a developing scene but everybody who is accused of an offense has the right to be transferred immediately to the independent judicial branch of government and to be heard before a tribunal that is independent and impartial and acts according to law.
NK News: Given your involvement in Cambodia in the past and knowledge of human rights abuses – mentioning World War II – are there any fair comparisons to be made with those situations other regimes and North Korea?
Kirby: I think that’s something I will reserve for the time when we deliver our report. There are comparisons and it will not assist in the understanding of our recommendations of the report to jump the gun on those matters. They will be the subject of exposition and discussion at the time of the report.
NK News: In terms of engagement and opening up with North Korea, what’s your view on things like tourism and Westerners visiting North Korea despite its human rights abuses?
Kirby: Well, any interaction between peoples is highly desirable. However, the testimony we have received suggests that North Korea is like nowhere else in terms of visiting tourists. People are very strictly monitored and they don’t have the normal freedoms to wander around and speak to people and to citizens of the country and thereby to get the fullness of the culture and experience. It is a very controlled form of tourism, just as in earlier times as it was in the former Soviet Union but all of this will change in due course, it will change and the Commission Of Inquiry is one item in the process of engagement of the DPRK with the rest of the world.
Picture: Matt Paish, Flickr Creative Commons
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