Kirby Shines A Light On North Korea


The Democratic People’s Republic of Korea (better known as North Korea) will be subject to scrutiny from afar for its “deteriorating” compliance with international human rights law, during public consultations in Seoul and Tokyo this week.

International diplomacy has so far failed to break the stalemate over North Korea when tensions grew after Kim Jong Un, the current president, threatened the United States with nuclear attack in April.

Attention has become more focused on what is happening inside North Korea, with the growth of a market economy and other agents of change noted. Human rights NGOs are active both inside and outside the closed state, although North Korea has rejected human rights as a Western concept. In 1997, North Korea attempted to withdraw from the International Covenant on Civil and Political Rights.

The United Nations Human Rights Council has established a three person Commission of Inquiry to start investigating systematic, widespread and grave violations of human rights in North Korea. The Human Rights Council designated retired High Court of Australia Justice Michael Kirby as the chairman of the commission, as well as appointing Serbian national Sonja Biserko and Indonesian Marzuki Darusman to the panel.

The Commission of Inquiry is a fact-finding body with a Secretariat based in Geneva. It was established by vocal agreement rather than by a vote at the Human Rights Council – the first such body. This was deemed to be a hostile act by North Korea.

According to Kirby, the public hearings will provide valuable information on the status of human rights in North Korea and improve accountability:

“We will gather evidence from many sources. We will leave no stone unturned. We will listen to people’s stories. We will examine satellite photographs. We will study official records and reports. We will listen to experts, high personages and ordinary people with relevant experience to share with us.”

The commission will collect and document testimonies in Korea and Japan that will raise awareness of the situation and become part of a public record. The public testimony is likely to be the first draft in the establishment of an investigation of the individual criminal responsibility of leaders in Northern Korea if it is proven that human rights abuses were widespread and systematic. A Security Council Resolution under Chapter VII must be passed if jurisdiction over crimes against humanity is to be heard by the International Criminal Court. However, it is uncertain whether such a resolution would be possible, given the close relationship between North Korea and China.

States are obligated to respect, protect and fulfil human rights under international human rights law. Compliance with international human rights norms is ordinarily the mandate of several mechanisms such as the United Nations Special Procedures. According to this mechanism, a United Nations Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea was appointed in 2004. The current Special Rapporteur Marzuki Darusman is a member of the Commission of Inquiry.

Commissions have been established as a next step according to the gravity of the situation. What will the commission hear about? Human Rights Council Resolution 22/13 states that it has the mandate to investigate the systematic violation of the right to food in North Korea. A 2013 report by the Special Rapporteur found that the government of North Korea had not only failed to ensure that a large portion of society were fed but had used its control over the supply of food as a means of controlling the population.

The controversial nuclear weapons program received massive funding from the state while people starved. The Special Rapporteur concluded that the excessive expenditure by the authorities on defence had an indirect impact upon the food security of North Koreas. In March 2011, a United Nations survey found that six million people urgently required international food assistance in North Korea. Retrogressive steps – in contrary to the international human rights conventions – were taken when North Korea rejected food aid and relief workers in an attempt to isolate North Korea from outside influence.

The commission will also investigate human rights violations associated with prison camps. Prison camps are used to intern political dissidents in North Korea – a fact that was reported on by the Special Rapporteur in 2007. Although conditions in these prison camps have been kept a secret by the North Korean authorities, sources have revealed the abuse of a number of human rights such as torture as well as economic, social and cultural rights such as proper food, shelter and medicines. Human rights groups outside North Korea have documented such abuses using technology such as satellites; their testimony will be valuable to the commission.

Many authoritarian regimes restrict the right to freedom of expression by internally controlling media and related information. Information is also restricted externally, with severe controls on foreign journalists entering North Korean territory. In 2009, two American journalists detained by North Korean border guards on the grounds of illegal entry had their long sentence pardoned by the farther of the current leader North Korean leader Kim Jong-il. International human rights standards prohibit the intimidation of media professionals through arbitrary punishment.

The commission will also investigate human rights abuses related to torture and inhuman treatment, arbitrary detention, the right to life, freedom of movement and enforced disappearances, including in the form of abductions of nationals of other states.

Human Rights Council Resolution 22/13 does not go so far as to oblige North Korea to permit the commission to enter its territory. However, strongly worded recommendation six “urges the Government of the Democratic People’s Republic of Korea to cooperate fully with the Special Rapporteur and the commission of inquiry, and to permit them and their staff unrestricted access to visit the country and to provide them with all the information necessary to enable them to fulfil their mandates”.

Cooperation so far has not been forthcoming. Kirby notes that past Commissions of Inquiry – such as those in the Occupied Palestinian Territories and in Syria – have conducted and completed fact-finding missions despite being blocked from entry.

Nevertheless, active steps have been taken to establish a working relationship with North Korea. Approaches have been made by the commission to the embassy in Geneva with no success. A second approach directly to the North Korean government received assurances of no cooperation. A letter drafted by Kirby addressed to the Supreme Leader Kim Jong Un has likewise received no response to this date. Kirby is unfazed:

“People say to me: ‘if you can’t get into North Korea how can you expect to conclude your inquiry successfully? if you can’t see for yourself what’s going on, how can you report fully and accurately?’ Well, we are still hopeful that the government in North Korea will extend international courtesies to us. We hope that they will take note of the virtual unanimity of the world community in the UN Human Rights Council, in setting up the commission and giving it such a detailed mandate. But if they do not, then we will discharge our mandate without going there.”

United Nations bodies have generally had limited success getting into North Korea. In the human rights field, the predictable response in the past has been to label human rights reports on the human rights situation in North Korea as propaganda and an interference with affairs and refuse cooperation. Human rights observers will be keenly monitoring the stalemate to see if there is any shift in position. 

The commission will present a written report with its findings and recommendations to the Human Rights Council in March 2014.

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