Normally, state and individual responsibility are different accountability measures, based on distinct legal regimes and necessitating other types of evidence and responses. But what should be done if, in a highly centralized state, crimes against humanity are ingrained in its fabric and committed by both its institutions and officials unabatedly and with impunity?
This question proves to be relevant for thereport of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, which Judge Kirby will present on Thursday, 20 March at The Hague Institute. This Commission, which was created by the UN Human Rights Council almost a year ago, was mandated to investigate “systematic, widespread and grave violations of human rights in the Democratic People’s Republic of Korea, with a view to ensuring full accountability, in particular, for violations that may amount to crimes against humanity“.
An answer to the opening question is sought by focusing on violations of the right to food and related aspects of the right to life, while recognizing the other eight investigated substantive areas including freedom of expression and movement, rights violations in prison camps, torture and inhumane treatment, arbitrary arrest, discrimination, and disappearances. Starvation is emphasized for four non-exhaustive reasons. First, its sheer magnitude is distressing; between 1996 and 1999, an estimated 450,000 to 2 million people starved to death. Second, the report mentions how “(t)he state’s monopolization of access to food has been used as an important means to enforce political loyalty” and “(t)he distribution of food has prioritized those who are useful to the survival of the current political system at the expense of those deemed to be expendable” (e.g. songbun). Third, some features of the policies continue to be present, thus risking starvation to this very day. Fourth, the finding about the international community’s responsibility is relevant for states such as Syria that allegedly use policies to starve their populations as well.
On institutional accountability, the Commission finds “reasonable grounds to believe” that political, security and justice institutions bear direct responsibility for crimes against humanity of, and related to, starvation. The security sector supposedly takes administrative decisions to punish persons in labor training camps, where they experience deliberate starvation and other inhumane treatment. Justice institutions allegedly perform a primarily legitimizing function, by conducting fundamentally unfair trials for political crimes and failing to ensure adequate oversight and enforcement of the limited protections and rights for pre-trial detainees and convicted prisoners. Political institutions appear to implement decisions and policies violating the universal human right to food for purposes of sustaining the present political system, in full awareness of exacerbating effects of starvation and resulting deaths. The Commission therefore recommends “profound institutional reforms starting at the very top and centre of the nation’s institutions”.
On individual accountability, the Commission concludes that officials have allegedly committed murder, extermination and other inhumane acts against populations as part of a widespread and systematic policy. To bring these authorities to justice, the Commission recommends either a referral by the Security Council to the ICC or an ad hocinternational tribunal.
Considering these findings of a significant – if not full – overlap between institutional and personal accountability, it is understandable that the report contains a section on the international community’s responsibility. First, crimes were committed in this UN Member State over a span of several decades without an adequate response by the international community. Second, the situation is already “international”, considering that persons who are forcibly repatriated from China for example are frequently subjected to crimes against humanity. The Commission therefore refers to the international community’s “responsibility to protect” (R2P), as outlined in the 2005 Summit Outcome Document. For that purpose, the Commission also mentions the emerging obligation under the international law of state responsibility. As an addition to this report, an intervention against starvation would not be unprecedented because in 1992 the Security Council applied chapter VII of the UN Charter to an essentially internal situation in Somalia. Moreover, the Commission appears to provide evidence for both political and legal grounds for the exercise of R2P, for what might best be coined “supreme responsibility” for the commission of crimes against humanity. Finally, R2P’s application to North Korea would also help determining how the international community can protect the Syrian population that is currently undergoing the alleged “‘Starvation Until Submission Campaign.’”
Starting with starvation but also broadening this commentary to other relevant topics in the report, we conclude with questions that we propose for discussion on March 20:
- How can the international community engage with the North Korean regime to ensure that public spending does not come at the expense of access to food for its population?
- How can the international community exercise R2P, as the Commission recommends, by first and foremost adopting appropriate diplomatic, humanitarian and other peaceful means?
- How should the other recommendations of the Commission be implemented, particularly what are the likely obstacles to implementing the ideas of the Commission and how can these be overcome? Moreover, does the Commission give preference to a referral by the Security Council or to the International Criminal Court or an ad hoc international tribunal, considering the latter option is not mentioned in the conclusions and recommendations?
- How can the Secretary-General with the “Rights up Front” initiative (December 2013) improve the way the UN system addresses situations where populations are at risk of serious human rights violations? Specifically, how should the UN sequence a more coherent response, and strengthening of dialogue and engagement with the inter-governmental organs of the UN, including by providing candid information about the human rights situation?
The author would like to thank Eamon Aloyo and Sash Jayawardane for their helpful comments.