The United Nations Commission of Inquiry on Human Rights in North Korea (UN COI) reported in 20141 that crimes against humanity, including extermination, murder, enslavement, torture, imprisonment, rape, forced abortions, persecution, deliberate starvation, and enforced disappearances, have been committed “pursuant to policies established at the highest level of the State” in the Democratic People’s Republic of North Korea (DPRK).2 In his statement to the UN Human Rights Council, COI Chair, Michael Kirby, stated that the gravity, scale, and nature of these violations — which have been perpetrated for decades — “reveal a state that does not have a parallel in the contemporary world.”3 The UN COI called for practical measures to end the abuses and pursue accountability for those responsible.4
Transitional Justice Working Group
Sparked by the report of the UN COI, the Transitional Justice Working Group (TJWG) was formed in September 2014 to support the call for accountability and develop strategies of redress for victims of abuse. Its first two years of activities include the development of a digital mapping system to document and visualize evidence of possible crimes against humanity in North Korea. The database and mapping system securely collects information on alleged mass burial and killing sites and visualizes the information in the form of digital maps. The data also includes locations of national security offices, local police, military unites, and administrative units where documentary evidence may be stored. The TJWG believes that the preparatory work of locating these sites is crucial in preventing blanket amnesty for alleged perpetrators and, in the case of future investigations or trials of individuals charged with serious human rights violations, quickly securing forensic and documentary evidence. Importantly, its work also focuses on surveying defectors regarding their desires and hopes for the future, and what, if any, transitional justice mechanisms they recognize as relevant or necessary.
Accountability Preferences
The TJWG conducted a survey of North Korean defectors on t h e a c c o u n t a b i l i t y o f perpetrators of human rights a b u s e s i n t h e D P R K . “Accountability” in transitional justice is a concept often associated with legal remedies applied to situations where atrocities have taken place. The survey has revealed that among defectors who have participated in its mapping project, there is a strong preference to see those deemed responsible for human rights abuses held accountable in a courtroom setting. When asked about what they would like to see happen to those who committed violent human rights abuses in the DPRK, punitive measures featured highly, with the restorative measures of confessing crimes and asking for forgiveness also being seen as important. Amnesties were a less popular option.5
The large volume of potential perpetrators in the North Korean system means that it may well be practically impossible to bring formal charges against every individual suspected of carrying responsibility for human rights crimes, not to mention the problems that may arise in attempts to charge those who are both victims and perpetrators of the regime’s abuses. The data gathered by the mapping project will make an important contribution to determining the nature of the crimes concerned and in building cases against known perpetrators. While amnesties may have a place in the future, the survey respondents deem punitive measures as important, and this should be taken into consideration in any transitional justice process.
The question of whether judicial measures alone have the capacity to redress systematic or massive violations of human rights is a crucial one, and transitional justice (and the TJWG’s research) operates on the conviction that they do not. The UN Backgrounder on transitional justice states that, to be effective, the process should be holistic: “It should be made up of several initiatives that complement and reinforce each other.” 6 The design of a potential transitional justice process, which includes accountability measures in the North Korean context, must be accompanied by sustained engagement with the affected communities, and the efficacy of different accountability mechanisms should be properly assessed. However, at this early stage in our work, the TJWG seeks to draw attention to three main types of accountability mechanisms most often tried elsewhere by pointing out their associated obstacles and opportunities.
Types of Courts
The International Criminal Court
The UN COI’s recommendation for the referral of the situation in the DPRK to the ICC was welcomed by North Koreafocused human rights groups in South Korea. However, there are numerous obstacles, including the lack of jurisdiction for crimes commited prior to the establishment of the International Criminal Court (ICC) in 2002 under Article 11(1) of the Rome Statute, the DPRK’s hostility to the ICC, as well as China and Russia’s objections to the ICC referral by the UN Security Council. Because the ICC Prosecutor can initiate investigations only for “crimes within the jurisdiction of the Court” under Article 15(1), the ICC may exercise jurisdiction over the crimes committed by nationals of States Parties to the Rome Statute, such as South Korea and Japan, but not by China, perhaps the DPRK’s last, reluctant ally.
It would, however, be possible to prepare for possible future cases at the ICC. Long-term political changes in the DPRK may lead it to accede to the Rome Statute with a declaration accepting jurisdiction for cases reaching back to July 1st, 2002, per Articles 11(2) and 12(3) of the Rome Statute. In the case of the reunification of the two Koreas, the successor state may issue a declaration to the same effect. If so, it would be possible for the Prosecutor to initiate investigations proprio motu, or for the successor state to refer the situation to the ICC.
An Ad Hoc Tribunal
The UN COI also mentioned the possibility of an ad hoc tribunal. However, the current DPRK regime is not likely to consent to investigating and prosecuting its own leaders and executioners for the numerous atrocities they committed. Therefore, this option also must be preceded by fundamental political change within the DPRK to become viable.
Thus far, when thinking about transitional justice for regime crimes in the DPRK, South Korean civic groups and academic advisors to the government have shown a growing preference for an ad hoc tribunal over ICC proceedings in The Hague, which is geographically far removed from the scene of crimes as well as the domicile of the perpetrators, victims, and the interested population. The logistics and resource requirements for the recruitment of Korean-speaking personnel and the transportation of the witnesses and documents to the court, which is located on the other far end of the Eurasian landmass, would be inefficient and detrimental to the investigation and trials. The vast majority of the victims and concerned individuals in the Korean Peninsula would have difficulty following the proceedings even via TV or webcast, given the 8-hour time difference. The same may be said of Japan, which would have particular interest because of the abduction of its citizens by the DPRK in the past. In the case of an ad hoc tribunal, South Kore's judical institutions and legal expertise may pricide helpful infrastructure for the investigation and trial of the atrocities in the DPRK.
One option may be a hybrid tribunal akin to the Special Court for Sierra Leone (SCSL) or the Extraordinary Chambers in the Courts of Cambodia (ECCC), which would ideally be situated in Pyongyang. The Cambodian case may be pertinent to the DPRK given the similar pattern of murder, extermination, enslavement, torture, deportation, imprisonment, rape, persecutions, and enforced disappearance committed as state policy by a totalitarian regime in the context of a communistinfluenced, post-colonial national liberation movement radicalized by devastating war into xenophobic paranoia. The ECCC as an institution also suggests a way to by-pass the UN Security Council, where China may wield its veto and rely upon the authority of the UN General Assembly, which may enjoy greater international legitimacy.
The Domestic Transitional Justice Process
The UN COI also alluded to the urgent need for a “Korean-led transitional justice process” parallel to the international judicial procedures, including “extensive, nationally owned truth seeking and vetting measures to expose and disempower perpetrators at the mid- and lower-levels ... coupled with comprehensive human rights education campaigns to change the mindsets of an entire generation of ordinary citizens, who have been kept in the dark about what human rights they are entitled to enjoy and in how many ways their own state has violated them.” A special national prosecutor “relying on international assistance to the extent necessary” should also investigate and prosecute crimes against humanity.
Even prior to the transition, domestic courts may, on occasion, prosecute and try individual perpetrators whom they happen to have in their custody by the exercise of universal jurisdiction or another legal basis. For example, the South Korean courts have convicted and sentenced ethnic Korean Chinese upon arresting them as undocumented workers in South Korea for collaborating in the abduction of ROK nationals in China to the DPRK. Similarly, the pre-unification West German courts punished East German defectors who were responsible for the shooting of border-crossers before their own successful flight. It may also be noted that Japan has been conducting a criminal investigation on the abductions of its nationals to the DPRK and may also proceed to try and convict those responsible for the abductions in its own courts.
Transitional Justice in North Korea
Most of the many countries that have looked to a past marked by dictatorship, armed conflict, and large-scale serious crime have used multiple transitional justice measures, implemented simultaneously or gradually, to restore rights and dignity to victims, ensure that human rights violations are not repeated, consolidate democracy and sustainable peace, and lay the foundations for national reconciliation. Due to the many challenges present in seeking justice for the crimes believed to have been committed in the DPRK, it is crucial that a holistic policy of transitional justice be adopted when the conditions permit. The TJWG hopes that, by examining accountability strategies in advance of a transition, judicial procedures will be more effectively designed and implemented, so that they can play their important role in securing a just future for the people of North Korea.
For more information, please contact: Scott Stevens, Communications and Administrative Director, Transitional Justice Working Group, #302, Koryo Building, 91 Saemunan-ro, Jongno-gu, Seoul, 03182, Republic of Korea; ph (82-2) 722-1162; fax (82-2) 722-1163; e-mail: scott.stevens(a)tjwg.org; www.tjwg.org.
Endnotes
1. “Report of the commission of inquiry on human rights in the Democratic People’s Republic of Korea,” United Nations Human Rights Council, A/HRC/25/63,7 February2014, www.ohchr.org/EN/HRBodies/HRC/CoIDPRK/Pages/ReportoftheCommissionofInquiryDPRK.aspx.
3. Michael Kirby, “Statement by Mr Michael Kirby Chair of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea to the 25th Session of the Human Rights Council, Geneva, 17 March 2014,” United Nations Office of the High Commissioner for Human Rights, 17 March 2014, www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14385&LangID=E.
4. See Conclusions and Recommendations in the “Report of the commission of inquiry on human rights in the Democratic People’s Republic of Korea,” op cit.
5. For a more detailed discussion of defector preferences, please refer to TJWG’s forthcoming report “Mapping Crimes Against Humanity in North Korea” available at HYPERLINK " http://www.tjwg.org/" www.tjwg.org.
6. United Nations, “What Is Transitional Justice?: A Backgrounder” (United Nations, 20 February 2008), www.un.org/en/peacebuilding/pdf/ doc_wgll/justice_times_transition/26 _02_2008_background_note.pdf.