The Commission of Inquiry on Human Rights in the DPRK ...

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atrocities that have slowly been leaking out of North Korea since 1995, but which gained momentum after the appointment of a UN Special Rapporteur in 2004.
SSK Human Rights Brief 6, June 2014

The Commission of Inquiry on Human Rights in the DPRK: Background and Activities

Hun Joon Kim* and Vanessa Newby**

June 2014

* Hun Joon Kim is a Senior Lecturer in the School of Government and International Relations at Griffith University. He is the author of several journal articles published in International Organization, International Studies Quarterly, Human Rights Quarterly, Journal of Peace Research, Global Governance, Journal of Human Rights, and International Journal of Transitional Justice. He has research interests in international norms and institutions, international human rights and transitional justice, international ethics, and international relations theory. He recently published The Massacres at Mt Halla: Sixty Years of Truth-Seeking in South Korea (Cornell University Press 2014) and co-edited Transitional Justice in the Asia Pacific (Cambridge University Press 2014). ** Vanessa Newby has just submitted a PhD in international relations at Griffith University, Australia. She has a BSc Honours in Psychology from the University of Westminster, UK and a Masters of International Relations from Griffith University. Her research interests are institutional change, peace and conflict studies and the security of the Middle East. She is currently a Research Assistant at Griffith Asia Institute.

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SSK Human Rights Brief 6, June 2014

Introduction The Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea (DPRK) reported its initial findings on 17 February 2014 in a press conference to the public. This event typified the open and very public nature of the workings of the commission since its creation on 21 March 2013. From its inception, the commissioners intended to draw public attention to the inquiry through the powerful use of public testimonies which described the horrors of life in North Korean prison camps. The inquiry was developed in response to continued pressure from NGOs and charities committed to publicising stories of the atrocities that have slowly been leaking out of North Korea since 1995, but which gained momentum after the appointment of a UN Special Rapporteur in 2004. The consistent refusal of the DPRK to cooperate with the UN or indeed respond to its reports and recommendations also assisted in precipitating the formation of the Commission. Ultimately, the inquiry was designed to assist with shaming the DPRK into changing their domestic policies, and as such, the commission appears to have taken this issue into consideration as part of its strategy to obtain the best outcomes possible for the inquiry. Described below is a background and summary of the activities of the Commission of Inquiry. The following sections discuss its formation, mandate, and methods of inquiry. What is revealed are three main considerations: (1) how the Chair of the commission, Michael Kirby, was determined to ensure an open process which provided for maximum media coverage for the commission in order to attempt to shame the DPRK in the very public arena of the United Nations; (2) a broad focus which was not limited to any specific timeframe or geographical space; and (3) a heavy focus on identifying accountability for human rights violations in an attempt to address the issue of impunity. The major constraint faced by the commission was to ensure that any repercussions from the giving of testimony by witnesses were avoided. To have caused more suffering as a result of holding the inquiry would have been unacceptable to the commissioners who stated that they had been reduced to tears by some of the testimonies they received from witnesses.1

Background The Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea (DPRK) was established on 21 March 2013 as a result of a UN Human Rights Council Resolution.2 This resolution in the short term was based on a succession of reports that have been submitted by the Special Rapporteur on DPRK and a statement by the UN High Commissioner for Human Rights, Navi Pillay, on 14 January 2013, which called for “a fully fledged international inquiry into serious crimes in the DPRK.”3 As early as 1995, the Commission on Human Rights Working Group on Arbitrary Detention, which was then part of the UN Economic and Social Council, investigated the case of Mrs. Shin Sook Ja and her two daughters.4 From this point on, various working groups within the UN began to document cases of human rights abuses occurring in the DPRK. In 1997 and 1998, the Office of the High Commission for Human Rights issued a resolution by its Sub-Commission on Prevention of Discrimination and Protection of

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Josie Ensor, ‘UN Inquiry Chief Reduced to Tears by North Korean Brutality’, The Telegraph, 30 October, 2013. A/HRC/Res/22/13, 09 April 2013.

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A/HRC/Res/22/13, 09 April 2013, p.1 These three family members were reported to have been sent to the Yodok Prison Camp as a result of Oh Kil Nam, the father and husband requesting political asylum in Denmark. 4

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SSK Human Rights Brief 6, June 2014 Minorities, which highlighted the situation of human rights in the DPRK and advocated for greater attention to the issue from the international community.5 In 2004, the UN Commission on Human Rights appointed a Special Rapporteur on the situation of human rights in the DPRK. The first rapporteur was Vitit Muntarbhorn. In 2009, the UN Universal Periodic Review released a report on North Korea identifying a number of concerns with the human rights regime in that state.6 North Korea participated in the review but refused to accept any of its 167 recommendations. In 2009, his report Muntarbhorn raised the issue of state responsibility and personal accountability for those violations, which he stated “demands comprehensive responses at all levels, national and international”, calling upon the UN to “address the issue of impunity.”7 The next Special Rapporteur, Marzuki Darusman was also unable to secure the DPRK’s cooperation with UN recommendations. In April 2012, in a conference organised by the Committee for Human Rights in North Korea, Darusman indicated he might be willing to consider a commission of inquiry if it was undertaken after a comprehensive review of all previous UN reports on the DPRK. Meanwhile, international awareness of DPRK human rights violations was steadily growing. A large number of NGOs, charities and human rights organisations had been publicising the issue and lobbying the UN over the issue for many years. A campaign, entitled the International Coalition to Stop Crimes Against Humanity in North Korea (ICNK), was launched on 8 September 2011 in Tokyo,8 which consisted of 49 NGOs, charities and academics specialising in the area. In addition to lobbying UN member states, the coalition aimed to bring DPRK violations to the attention of UN Special Rapporteurs. These efforts culminated in the launch of a campaign dedicated to the establishment of a UN commission of inquiry into crimes against humanity in North Korea.

Mandate The mandate of the commission was stated as being: ‘to investigate systemic, widespread and grave violations of human rights in the DPRK’.9 The mandate listed nine different human rights violations that the commission was required to investigate: “violations of the right to food; violations associated with prison camps; torture and inhuman treatment; arbitrary detention; discrimination; violations of freedom of expression; violations of the right to life; violations of freedom of movement; and enforced disappearances, including in the form of abductions of nationals of other states.”10 The commission considered itself to not be limited purely to the investigation of the nine areas listed above, but rather it should have a broader focus. The commission’s report argues that the commissioners decided the inquiry should pursue three interlinked objectives: “(1) further investigating and documenting human rights violations, (2) collecting and documenting victim and perpetrator accounts, and (3) ensuring 5

E/CN.4/SUB.2/RES/1997/3, E/CN.4/SUB.2/RES/1998/2. A/HRC/WG.6/6/PRK/1, 27 August 2009. 7 A/65/224, 4 August 2009, p. 2, p. 21. 8 Human Rights Watch, ‘Human Rights Organizations Call for Action on North Korea on International Human Rights Day’, 8 September 2011. 9 A/HRC/25/CRP.1, p. 6 10 Mandate of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, A/HRC/Res/22/13, 09 April 2013. 6

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SSK Human Rights Brief 6, June 2014 accountability.”11 Regarding the second task, the commission took a particular interest in ensuring full documentation of the accounts of witnesses. Those that could be made public were made available on the website, those that could not for protection reasons were kept in a secure and confidential database. The chair of the commission, Michael Kirby stated that it had been his initiative to ensure that the inquiry be held in the public in the style of common law. He believed the public nature of an inquiry was important in order that the judges themselves could be judged.12 The third task of ensuring accountability related to the idea that the commission wanted to establish as far as possible which state institutions were responsible for violations. In addition, where possible, personal responsibility was to be examined in the event that crimes against humanity were found to have occurred by the commission. This accountability included the international community which the commission believed is not exempt from responsibility for the crimes committed against individual human rights. The commission also stated that it “was also of the view that violations committed outside the DPRK that causally enable or facilitate subsequent human rights violations in the DPRK, or are the immediate consequence of human rights violations that take place in the DPRK’,13 were also within its mandate. In this respect, the commission also made findings regarding “the extent to which other states carry relevant responsibility”.14 The commission stated it was also keen to focus on gendered violence and took special note of violence against women and children. Unusually, unlike former UN commissions of inquiries, the commission’s mandate comprised no temporal limit for its investigations. The rationale for this was given in the report as being due to the need to explore patterns of human rights abuses that began in the past, but continue into the present. The report covered historical events that occurred before the founding of the DPRK at critical junctures, where the commission believed they explain the underlying political, cultural and economic causes of human rights abuses today. The geographic scope of the mandate included violations that occurred in the DPRK but also outside where violations were carried out by the regime. This related predominantly to the abductions that are believed to have occurred in various parts of the world.

Organization and Activities The commission comprised three members – Marzuki Darusman (Indonesia), the Special Rapporteur on the situation of human rights in North Korea, Michael Kirby (Australia), a former Special Rapporteur on the situation of human rights in Cambodia, serving as the chair, and Sonja Biserko (Serbia), founder and president of the Helsinki Committee for Human Rights in Serbia.15 The commissioners were supported by a Secretariat of nine human rights officials. The commissioners were mandated to present a written report of findings and recommendations to the Human Rights Council in March 2014. As it was, they released the

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A/HRC/25/CRP.1, 7 February 2014, p.7, para. 15. Michael Kirby, Report of the Commission of Inquiry on Human Rights in the Democratic People's Republic of Korea, Griffith Asia Institute Asian Perspectives Public Lecture Series, Gallery of Modern Art, Brisbane, Australia, 1 May 2014. 13 A/HRC/25/CRP.1, 7 February 2014, p.8, para. 20. 14 A/HRC/25/CRP.1, 7 February 2014, p.8, para. 20. 15 A/HRC/25/CRP.1, 7 February 2014, p.5, para. 3. 12

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SSK Human Rights Brief 6, June 2014 results of the inquiry on 17 February 2014 to the media and the general public, and then presented the full report to the Human Rights Council on 17 March at its 25th Session in Geneva.

The commission was mandated to conduct primary source interviews with survivors, witnesses, and victims of human rights violations perpetrated by the regime of the DPRK. In some cases perpetrators of such crimes also provided testimony. The commission conducted public hearings in four cities, Seoul, Tokyo, London and Washington. The commission also visited Bangkok to conduct some further interviews with victims of abductions committed by North Korean state officials. In the course of its investigation, the commission also reviewed hundreds of documents relevant to the inquiry, including written submissions from interested parties. The commission’s aim was to collect and document human rights abuses with a view to generating accountability for violations at the institutional and individual levels, should crimes against humanity be found to have occurred. Over the course of the year the commission ensured its work was continuously publicized. It released a total of 18 press releases. It also provided oral updates to the UN Human Rights Council on 17 September 2013 and the UN General Assembly on 29 October 2013. Other activities included five press conferences in Geneva, Tokyo, Seoul, and New York during the course of the year. The testimonies in each of the four cities were made publicly available on the web and a further press conference was held upon release of the report on 17 February 2014. The commission was instructed according to its mandate, to use primary source data to inform the report. Face-to-face testimonies were to be the main source of information for the investigation team. Because of a lack of access to the DPRK, there was no opportunity to inspect facilities or interview witnesses in-country. As such the commission had to rely on the testimonies of victims and witnesses who have fled the DPRK of which there are an estimated 30,000. The principles upon which the commission based its method of work were: “independence, impartiality, objectivity, transparency, integrity, and the principle of ‘do no harm.’” 16 This last principle relates in particular to the risk of reprisals against family members of North Koreans who left North Korea. In terms of maintaining best practice, procedures were put in place to ensure that the commission maintained some objectivity to the best of its ability. This involved requesting witnesses to limit their testimony to “issues relevant to the human rights situation in the DPRK and avoid unrelated political or derogatory statements.”17 In order to ensure as much integrity as possible, the commission required witnesses to confirm that they were telling the truth.18 In order to ensure transparency for the proceedings, the commission placed all recordings and transcripts of the testimonies online and encouraged the public to study them so that they can form their own opinions about the reliability of witness testimony. In order to ensure factual accuracy as much as possible, the commission shared its findings in advance with states that have been mentioned as being responsible for sending North Koreans back to face human rights abuses, to give them the opportunity to refute or correct factual errors.

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A/HRC/25/CRP.1, 7 February 2014, p.10, para. 29. A/HRC/25/CRP.1, 7 February 2014, p,10, para. 32. 18 It is not clear from the report whether or not this was an oral exercise alone, or whether witnesses were required to sign anything, see A/HRC/25/CRP.1, 7 February 2014, p,10, para. 32. 17

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SSK Human Rights Brief 6, June 2014

The commission stated that it gave careful attention to all responses received within the stipulated deadlines. The commission also required the cooperation of other agencies within the UN, which it listed as: “specialised agencies, regional intergovernmental organisations, mandate holders, interested institutions, and independent experts and non-governmental organisations.” The commission noted that some agencies were unwilling to cooperate at the risk of jeopardising their own operations in the DPRK. As a result, it cannot be assumed that the use of a report by an agency was part of that agency’s cooperation. Rather the report could have been sourced independently by the commission’s staff from reports that are publicly available. Victims’ testimonies could be collected in a number of different ways: by written communication, orally in private, or at public hearings. The commission used public hearings in order to draw media attention to the work of the commission for the purposes of placing the DPRK under pressure. Indirectly the hearings also put China under pressure as an ally of DPRK and as the state primarily responsible for repatriating North Koreans who have fled to China to find work. The commission singled out a few countries in which it would hold hearings: Seoul, South Korea (20-24 August 2013), Tokyo, Japan (29-30 August 2013), London, UK (23 October 2013) and Washington D.C., US (30-31 October 2013). The public testimonies were videotaped, transcribed and placed on the Commission website for public viewing. All the host countries of the public hearings assisted with publicising the hearings: they organised contact with local and international press and relevant figures in civil society. During their visits to the aforementioned countries, the commission met key political figures, representatives of local and international NGO and civil society organisations. The commission also visited Bangkok, Thailand (18-20 September 2013), here as well as meeting senior Thai political figures, NGO and civil society representatives; the commission also interviewed a family in a suspected case of international abduction. The commission noted that prior to its arrival in a country, a team from the secretariat would go ahead and prepare for the public hearings, meet with relevant stakeholders and conduct confidential interviews. The secretariat staff also paid a separate, second visit to South Korea to conduct confidential interviews in October 2013. It can be assumed that the relative anonymity of this second visit may have made it easier for some witnesses/victims to participate. Protection of witnesses/victims was stated as a major concern of the commission to prevent reprisals against the families of those testifying who remain in the DPRK. The commission states that it “sought to exercise judgement, caution and sensitivity in all interactions with victims and witnesses.” In order for a witness to be able to testify at a public hearing, the main criterion was that they had no remaining close family in North Korea. Another check was to obtain the witnesses informed consent to participate, but this was insufficient alone to guarantee the right to testify. The commission refused some testimonies offered by witnesses because they judged the risk of reprisal against their families to be too great a risk. Even witnesses who had already received a lot of media coverage, and therefore had no real anonymity, were not allowed to testify publicly if there were “reasonable grounds” to believe that this might lead to further reprisals. What kind of grounds these might have been were not specified in the report. Michael Kirby personally noted after the commission’s report had been published, that there had been no shortage of North Koreans willing

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A/HRC/25/CRP.1, 7 February 2014, p,13, para. 47 A/HRC/25/CRP.1, 7 February 2014, p,14, para. 52.

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SSK Human Rights Brief 6, June 2014

to testify about their experiences. 21 The commission also stated that it made sure that during testimony, no personal details of the witness/victim were referred to and pseudonyms were used. Also whilst giving public testimonies, some witnesses took measures to conceal their identity by the use of sunglasses, a hat or a scarf. Nonetheless, the commission expressed its concern that in fact these measures may not have been sufficient. The commission specifically requested in the report that it be contacted by those who hear of reprisals taking place against witnesses. The commission also requested all relevant member states take additional precautionary measures to lower or avoid the risk of this happening. The commission also put out a call for written submissions to “all United Nations Member States and relevant stakeholders.” Individuals, organisations and states were invited to make written submissions to the commission from July 2013 until 3 November 2013. The submissions had to be in English, or limited to five pages in either Korean or Japanese. The report noted that some late submissions were accepted. The sources of information used for the commission were eye-witness testimony from former DPRK residents, both victims and witnesses; expert witness testimony; and testimony from NGOs, aid workers, journalists, diplomats and foreign visitors to the DPRK. The commission specified that it relied primarily on the first-hand testimony of victims and witnesses. The commission noted that its ability to source these participants was in no small way due to the assistance of NGOs who specialise in North Korea. These NGOs reassured potential participants that they could trust the commission not to reveal their identity. Additional written information provided was very useful for background information and as a potential corroborative source.

Concluding Remark This briefing has described the workings of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea (DPRK). The commissioners worked hard to ensure that the inquiry was as public as possible in order to place pressure on the DPRK through shaming. The major constraint faced in relation to this was the need to ensure that no further suffering was caused in the process of holding the inquiry. As such, the commission had to balance public testimonies with rigorous procedures for reassuring witnesses and participants that no retribution would occur as a result of testifying to the commission. The international community assisted the commission greatly in achieving this balance, host states provided the necessary resources for the hearings and publicity for the hearings; NGOs, charities and civil society organisations worked to encourage North Koreans to testify and reassure them that they could trust the commission. The impact of the commission on the DPRK, in particular how the measures undertaken to ensure accountability could be interpreted by the international community, has yet to be fully understood. The commission of inquiry still has the potential to generate further discussion in the UN as its broad focus

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Michael Kirby, Report of the Commission of Inquiry on Human Rights in the Democratic People's Republic of Korea, Griffith Asia Institute Asian Perspectives Public Lecture Series, Gallery of Modern Art, Brisbane, Australia, 1 May 2014. 22 A/HRC/25/CRP.1, 7 February 2014, p,11, para. 37.

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SSK Human Rights Brief 6, June 2014 means it is still collecting data on DPRK human rights violations from all over the world. At the very least, the many voices of those who have suffered have been recorded for posterity and this is important for future generations to understand what occurred. Should the political fortunes of the regime of Kim Jong-Un change for the worse, the data gathered by the commission could be used to assist with a transitional justice process in the future.

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