The Special Rapporteur on DPRK Ends his Term with Calls for Group of Experts on Accountability
By Christine Chung
Christine Chung is a Senior Advisor to the Committee for Human Rights in North Korea and the former Political Advisor to the Commission of Inquiry on Human Rights in the Democratic People's Republic of Korea. As a human rights officer for the Office of the United Nations High Commissioner for Human Rights, she managed the Office's technical cooperation program with China, supported the Special Rapporteur on the situation of human rights in Myanmar, and served desk functions for Northeast and Southeast Asia. Before joining the UN, Ms. Chung established and headed the China field office for the National Democratic Institute for International Affairs. She is currently advising the Leiden Asia Centre on its investigation of forced labor practices involving North Koreans in the European Union.
The Special Rapporteur emphasized that the human rights situation in North Korea has not changed at all in the past two years: political prison camps still operate; authorities still carry out torture with impunity; religious believers are still subject to persecution; food insecurity remains rife despite the emergence of markets; slave-like organizing of labor continues while workers are sent abroad to have their earnings confiscated by the state; and victims of kidnapping have not yet been accounted for.
Alluding to recent North Korean ballistic and nuclear provocations, he characterized the country’s external aggression as the flip side of the same coin that expresses itself internally in brutal suppression of human rights. He also noted that workers sent abroad to earn foreign exchange for the regime were subject to “severe labor conditions.” While there has been increasing talk of the need for a peace treaty to resolve the situation on the peninsula, the Special Rapporteur emphasized that accountability must be part of any discussion on unification. The question is not whether there should be accountability, he said, but when and how this will be done. And it is both a Korean and international challenge.
Given North Korea’s highly hierarchical structure, the principle of command and superior responsibility under international criminal law points to the individual culpability of Supreme Leader Kim Jong-un. The Special Rapporteur explicitly named the North Korean leader twice in this context. Mr. Darusman said Kim Jong-un should be tried in a court of law while recalling that the COI had made the recommendation that the Security Council refer the North Korean situation to the International Criminal Court (ICC). He also noted the possibility for universal jurisdiction whereby a third country could undertake judicial proceedings regardless of the nationality of the perpetrators or victims or whether the alleged crimes occurred within its territory. The Special Rapporteur concluded his statement by repeating his recommendation that a three-member group of experts be established to investigate plausible measures to ensure accountability in North Korea.
Following procedure, Vice-President of the Human Rights Council H.E. Mr. Ramón Alberto Morales Quijano (from the Republic of Panama), who was chairing the session, gave the floor to the delegation of the concerned state. As the North Korean delegation was not present, he proceeded to call on the representatives of member states in order of their inscription—activated electronically for one minute at the start of the session. The first to speak was Deputy Head of the European Union (EU) Delegation to the UN in Geneva Dominic Porter who, noting that the COI had presented a major turning point, supported Security Council referral of the North Korean human rights situation to the ICC, encouraged the DPRK to engage with the Special Rapporteur and the field-based structure of the Office of the High Commissioner for Human Rights (OHCHR) in Seoul, and explained that the DPRK resolution would call for extending the mandate of the Special Rapporteur. Other EU states aligned themselves with the EU statement, including the Republic of Estonia, Ireland, the Federal Republic of Germany, the Portuguese Republic, the Czech Republic, the United Kingdom, the Slovak Republic, the Republic of Lithuania, the Kingdom of Spain, and the French Republic.
The Russian Federation condemned the Special Rapporteur in a particularly harsh statement. Russian representative Dmitry Vorobyev said the usual thanks to the mandate holder are not warranted as he had politicized the process in a non-professional way instead of seeking a normal respectful dialogue. He accused the Special Rapporteur of flagrantly violating the code of conduct for Special Procedures mandate holders by openly calling for regime change. Vorobyev questioned the Special Rapporteur’s suitability for holding the post alleging that he had undermined the whole system. Nevertheless, the representative conceded that Pyongyang has problems with its human rights, but “whipping up confrontation” would not help. In contrast, the United States of America, represented by Special Envoy for North Korean Human Rights Issues Ambassador Robert King, commended the Special Rapporteur’s outstanding accomplishments, expressed disappointment over North Korea’s lack of cooperation with the Special Rapporteur, and noted that the United States is committed to working closely with the international community on improving human rights in North Korea. Other supportive states included the Commonwealth of Australia, the Kingdom of Norway, the Republic of Botswana, New Zealand, and the Republic of Albania.
Given its own history with country-specific mandates, the Republic of Cuba (Cuba) objected to what it described as the “selective and politically motivated” mandate of the Special Rapporteur. Cuba’s representative noted there was no genuine intent to contribute to dialogue and disparaged the establishment of new monitoring mechanisms outside the work of the Human Rights Council. Highlighting the punishment and sanctions imposed on North Korea which deny it the right to peace and development, Cuba’s representative said her country would never support actions to bring about regime change. She said that the best support could be provided through mechanisms of cooperation such as the Universal Periodic Review (UPR) that provide a venue for non-politicized debate. The Islamic Republic of Iran’s representative echoed Cuba’s position calling for dialogue and cooperation while noting that human rights should not be used for political ends and that unilateral coercive measures have negative effects on the civilian population. The Republic of Sudan’s representative emphasized that cooperation with the country was essential, recalling that the DPRK’s second UPR was encouraging as the country had accepted a number of recommendations. The Republic of Belarus’s representative expressed doubts about the establishment of another group of experts above other mechanisms without the consent of the DPRK. The Lao People's Democratic Republic’s representative stated his firm belief in the UPR as the most constructive dialogue forum for any country and took note of the DPRK’s participation in the UPR and high-level segments. The Syrian Arab Republic’s representative claimed that dual standards are in play and that the selective approach to North Korea undermines the Human Rights Council. He said that calling for the dismantling of the power structure violates the principles of the UN and that those who wish to see a change in government are dictating the extension of the mandate. The Bolivarian Republic of Venezuela called for reconsideration of country-specific mandates.
Of the three states most directly impacted by North Korea, Japan, represented by Ambassador Extraordinary and Plenipotentiary Permanent Representative to the International Organizations in Geneva Junichi Ihara, noting the escalation of provocative actions by North Korea, said that Security Council Resolution 2270 reflects strong international concerns about human rights and the humanitarian situation in the DPRK. He expressed support for the group of three experts idea proposed by the Special Rapporteur and noted its inclusion in the draft resolution co-sponsored by Japan and the EU. The People’s Republic of China’s representative Wang Yi reiterated that equality and mutual respect should be the grounds for engagement with the DPRK. She said that the root cause of the problems was the lack of political trust, a lingering effect of the Cold War, which necessitated negotiating a pathway away from the armistice through dialogue and cooperation. Furthermore, she regretted what she called “inaccuracies” about China in the Special Rapporteur’s report noting that China’s goal has been denuclearization of the peninsula and safeguarding its legitimate security concerns. Representative Wang Yi repeated the Chinese official position that North Koreans in China are not refugees but illegal aliens. She further stated that China has always adhered to Chinese, international, and refugee laws. The Republic of Korea (ROK) expressed full support for the Special Rapporteur and the OHCHR field office in Seoul. ROK Ambassador for Human Rights Jung-Hoon Lee regretted that the DPRK is boycotting Human Rights Council sessions and remarked that if conditions in North Korea are what the government claims, there would be no reason not to unconditionally invite the Special Rapporteur to visit. He also called on all states to respect the principle of non-refoulement.
After interventions by member states, national human rights institutions and nongovernmental organizations got their turn to speak. Human Rights Watch noted the importance of pursuing justice not just for past human rights violations (or “atrocities”) but for sending a message to officials that further abuses now would subject them to prosecution in the future. UN Watch was represented by Gayoung Kim of NK Watch, who detailed ongoing human rights violations of women, including sexual harassment by agents, particularly targeting victims in their 20s. Amnesty International focused on violations of freedom of expression, tightening of border security, and an increase in surveillance. People for Successful Corean Reunification highlighted the situation of North Korean workers overseas whose earnings get confiscated, thus forcing them to engage in illegal activities to survive.
Vice-President Quijano noted the country concerned had the right of reply. However, as its representative was not in the room, he proceeded to give the floor to the Special Rapporteur for his closing remarks. Mr. Darusman noted that the work of the past six years was a collective effort and that it was conducted on behalf of the 30,000 citizens of North Korea who have escaped and for those who remain. We are at the tail end of 15 years of work started by the international community, he said. The COI merely compiled available information, while it was entirely up to the DPRK government to present its side of the story. The Special Rapporteur argued that the international community has always adopted a two-track approach to engage and pursue accountability at the same time. Two years since the COI presented its report nothing has happened in the DPRK, he repeated. As the international community cannot allow an open-ended process, he urged that an accountability mechanism be put in place. A group of experts should not duplicate the work of the COI or the OHCHR field office in Seoul but would be a fundamental next step for accountability. He closed by saying he trusted the Human Rights Council to “see this matter through.”
Discussions on the North Korea resolution are currently going forward. According to Ambassador Ihara, Japan and the EU intend to include support for the Special Rapporteur’s recommendation for a group of experts on accountability in the draft resolution. A new human rights investigation body, coupled with the renewal of the mandate of the Special Rapporteur on the Situation of Human Rights in the DPRK, would keep up institutional pressure on Pyongyang.
Side events that followed the interactive dialogue focused on forced labor by North Koreans both inside and outside the country and human rights violations against women and persons with disabilities. These two informal panels reflected increasing interest in these specific areas of concern. Certainly, North Korean women experience many additional levels of vulnerability and abuse ranging from pervasive discrimination to severe gender-based violence. In many respects, there has not been sufficient attention to the gender dimensions of the human rights situation in North Korea. It is symptomatic that trafficking of North Korean women in China, given its likely scale and scope, has not received the level of scrutiny the situation warrants. On persons with disabilities, the COI desperately sought to find one glimmer of hope in an otherwise grim portrait of human rights inside North Korea and found it in the DPRK’s signing of the Convention on the Rights of Persons with Disabilities. Nevertheless, regardless of whether Pyongyang takes the next step of ratifying the treaty, North Korea’s lack of compliance with the other four human rights treaties that it is already a state party to indicates that this may not be real progress in the intentions of North Korean authorities. After all, Pyongyang is unlikely to suddenly respect and promote the rights of persons with disabilities. Meanwhile, several organizations have started examining North Korea’s practice of dispatching labor abroad under what appears to be conditions of forced labor. This approach has the advantage of overcoming some barriers of accessibility and of dealing with states that are more serious about implementing applicable labor and human rights laws. In these and various other ways, civil society promises to continue to do its part in advocating for improving the lives of North Koreans.
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Draft resolution
A/HRC/31/L.25
Received from (main sponsors): Japan and EU
Date and Time: 16/03/2016 1259-1
Human Rights Council
Thirty-first session
Agenda item 4
Human rights situations that require the Council's attention
Situation of human rights in the Democratic People's Republic of Korea
The Human Rights Council,
Guided by the Charter of the United Nations, the Universal Declaration of Human Rights, the International Covenants on Human Rights and other human rights instruments,
Recalling all previous resolutions adopted by the Commission on Human Rights, the Human Rights Council and the General Assembly on the situation of human rights in the Democratic People’s Republic of Korea, including Council resolution 28/22 of 27 March 2015 and Assembly resolution 70/172 of 17 December 2015, and urging the implementation of those resolutions,
Bearingin mind paragraph 3 of General Assembly resolution 60/251 of 15 March 2006,
Recalling its resolutions 5/1, on institution-building of the Human Rights Council, and 5/2, on the Code of Conduct for Special Procedures Mandate Holders of the Council, of 18 June 2007, and stressing that the mandate holder shall discharge his/her duties in accordance with those resolutions and annexes thereto,
Stressing the importance of following up on the recommendations contained in the report of the commission of inquiry on human rights in the Democratic People’s Republic of Korea,[1] which was welcomed by both the Human Rights Council and the General Assembly, and transmitted to the relevant bodies of the United Nations, including the Security Council,
Deeply concerned at the systematic, widespread and gross human rights violations in the Democratic People’s Republic of Korea that, in many instances, constitute crimes against humanity, as well as at the impunity of perpetrators, as described in the report of the commission of inquiry,
Concerned that the precarious humanitarian situation in the country is exacerbated by the failure of the Government of the Democratic People’s Republic of Korea to provide humanitarian agencies with free and unimpeded access to all populations in need and by its national policy priorities that, among others, prioritize military spending over citizens’ access to food,
Reaffirming that it is the responsibility of the Government of the Democratic People’s Republic of Korea to ensure the full enjoyment of all human rights and fundamental freedoms of its entire population, including by ensuring equal access to adequate food, as well as, among others, freedom of religion or belief, freedom of expression and freedom of association and assembly,
Recognizing that particular risk factors affect women, children, persons with disabilities and the elderly, and the need to ensure the full enjoyment of all their human rights and fundamental freedoms by them against neglect, abuse, exploitation and violence,
Acknowledging the participation of the Democratic People’s Republic of Korea in the second universal periodic review process, noting the acceptance by the Government of the Democratic People’s Republic of Korea of 113 out of the 268 recommendations contained in the outcome of the review and its stated commitment to implement them and to look into the possibility of implementing a further 58 recommendations, and emphasizing the importance that the Democratic People’s Republic of Korea accept and implement the recommendations in order to address the grave human rights violations in the country,
Recognizing the important work of the treaty bodies in monitoring the implementation of international human rights obligations, and emphasizing the need for the Democratic People’s Republic of Korea to comply with its human rights obligations and to ensure regular and timely reporting to the treaty bodies,
Noting the importance of the issue of international abductions and of the immediate return of all abductees, taking note of the outcome of the government-level consultation between the Democratic People’s Republic of Korea and Japan in May 2014, on the basis of which the Democratic People’s Republic of Korea commenced investigations on all the Japanese nationals, and expecting the resolution of all issues related to the Japanese, in particular the return of all abductees, to be achieved at the earliest possible date,
Welcoming the panel discussion on the situation of human rights in the Democratic People’s Republic of Korea, including the issue of international abductions, enforced disappearances and related matters, held during the thirtieth session of the Human Right Council,
Noting the importance of inter-Korean dialogue, which could contribute to the improvement of the human rights and humanitarian situation in the Democratic People’s Republic of Korea,
Welcoming the resumption of the reunions of separated families across the border in October 2015, and, given that this is an urgent humanitarian concern of the entire Korean people, owing, in particular, to the advanced age of many members of the separated families, hoping that necessary arrangements for confirming the fate of family members, exchanging letters, visiting their hometowns and holding further reunions on a larger scale and a regular basis will be made by the Democratic People’s Republic of Korea, the Republic of Korea and members of the Korean diaspora,
Reaffirming the importance of States engaging fully and constructively with the Human Rights Council, including with the universal periodic review process and other mechanisms of the Council, for the improvement of their situation of human rights,
1. Condemnsin the strongest terms the long-standing and ongoing systematic, widespread and gross human rights violations and other human rights abuses committed in the Democratic People’s Republic of Korea, and expresses its grave concern at the detailed findings made by the commission of inquiry in its report, including:
(a) The denial of the right to freedom of thought, conscience and religion, as well as of the rights to freedom of opinion, expression and association, which is enforced through an absolute monopoly on information and total control over organized social life, and arbitrary and unlawful State surveillance that permeates the private lives of all citizens;
(b) Discrimination based on the songbun system, which classifies people on the basis of State-assigned social class and birth, and also includes consideration of political opinions and religion, discrimination against women, including unequal access to employment, discriminatory laws and regulations, and violence against women;
(c) Violations of all aspects of the right to freedom of movement, including forced assignment to State-designated places of residence and employment, often based on the songbun system, and denial of the right to leave one’s own country;
(d) Systematic, widespread and grave violations of the right to food and related aspects of the right to life, exacerbated by widespread hunger and malnutrition;
(e) Violations of the right to life and acts of extermination, murder, enslavement, torture, imprisonment, rape and other grave forms of sexual violence and persecution on political, religious and gender grounds in political prison camps and ordinary prisons, and the widespread practice of collective punishment with harsh sentences imposed on innocent individuals;
(f) Systematic abduction, denial of repatriation and subsequent enforced disappearance of persons, including those from other countries, on a large scale and as a matter of State policy;
2. Urgesthe Government of the Democratic People’s Republic of Korea to acknowledge the human rights violations in the country and to take immediate steps to end all such violations and abuses through, inter alia, the implementation of relevant recommendations in the report of the commission of inquiry, including, but not limited to, the following steps:
(a) To ensure the right to freedom of thought, conscience and religion, as well as the rights to freedom of opinion, expression and association, including by permitting the establishment of independent newspapers and other media;
(b) To end discrimination against citizens, including State-sponsored discrimination based on the songbun system, and to take immediate steps to ensure gender equality and to protect women from gender-based violence;
(c) To ensure the right to freedom of movement, including the freedom to choose one’s place of residence and employment;
(d) To promote equal access to food, including through full transparency regarding the provision of humanitarian assistance so that such assistance is genuinely provided to vulnerable persons;
(e) To immediately halt all human right violations relating to prison camps, including the practice of forced labour, to dismantle all political prison camps and to release all political prisoners, to immediately cease the practice of the arbitrary execution of persons in custody, and to ensure that justice sector reforms provide protections for a fair trial and due process;
(f) To resolve the issue of all persons who have been abducted or otherwise forcibly disappeared, as well as their descendants, in a transparent manner, including by ensuring their immediate return;
3. Reiterates its deep concern at the commission’s findings concerning the situation of refugees and asylum seekers returned to the Democratic People’s Republic of Korea, and other citizens of the Democratic People’s Republic of Korea who have been repatriated from abroad and made subject to sanctions, including internment, torture, cruel, inhumane and degrading treatment, sexual violence, enforced disappearance or the death penalty, and in this regard strongly urges all States to respect the fundamental principle of non-refoulement, to treat humanely those who seek refuge and to ensure unhindered access to the United Nations High Commissioner for Refugees and the Office of the High Commissioner, with a view to protecting the human rights of those who seek refuge, and once again urges State parties to comply with their obligations under international human rights law as well as the Convention relating to the Status of Refugees and the Protocol thereto in relation to persons from the Democratic People’s Republic of Korea who are covered by those instruments;
4. Stresses and restates its grave concernabout the commission’s finding that the body of testimony gathered and the information received provided reasonable grounds to believe that crimes against humanity have been committed in the Democratic People’s Republic of Korea, pursuant to policies established at the highest level of the State for decades; these crimes against humanity entail extermination, murder, enslavement, torture, imprisonment, rape, forced abortions and other sexual violence, persecution on political, religious, racial and gender grounds, the forcible transfer of populations, the enforced disappearance of persons and the inhumane act of knowingly causing prolonged starvation;
5. Stresses that the authorities of the Democratic People’s Republic of Korea have failed to prosecute those responsible for crimes against humanity and other human rights violations, and encourages the members of the international community to cooperate with accountability efforts and to ensure that these crimes do not remain unpunished;
6. Welcomes General Assembly resolution 70/172, in which the Assembly encouraged the Security Council to continue its consideration of the relevant conclusions and recommendations of the commission of inquiry and take appropriate action to ensure accountability, including through consideration of referral of the situation in the Democratic People’s Republic of Korea to the International Criminal Court and consideration of the scope for effective targeted sanctions against those who appear to be most responsible for acts that the commission has said may constitute crimes against humanity;
7. Also welcomes the decision of the Security Council to hold a second Council meeting on 10 December 2015, following the one in December 2014 during which the situation of human rights in the Democratic People’s Republic of Korea was discussed, and looks forward to the continued and active engagement of the Council on this matter;
8. Commends the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea for the activities undertaken to date and his continued efforts in the conduct of his mandate despite the lack of access to the country;
9. Welcomes the report of the Special Rapporteur submitted to the Human Rights Council at its thirty-first session, in which the Special Rapporteur calls upon the Human Rights Council to establish a group of independent experts on accountability;
10. Recalling the findings and recommendations of the Commission of Inquiry on human rights in the Democratic People’s Republic of Korea, requests the High Commissioner for Human Rights to designate for a period of six months, a maximum of two existing independent experts in support of the work of the Special Rapporteur on the Situation of Human Rights in the Democratic People’s Republic of Korea to focus on issues of accountability for human rights violations in the country, in particular where such violations amount to crimes against humanity as found by the commission of inquiry;
11. Also requests this group of independent experts on accountability, taking into account existing international law and prevailing State practices with regard to accountability to
a) explore appropriate approaches to seek accountability for human rights violations in the Democratic People’s Republic of Korea, in particular where such violations amount to crimes against humanity as found by the commission of inquiry;
b) recommend practical mechanisms of accountability to secure truth and justice for the victims of possible crimes against humanity in the Democratic People's Republic of Korea, including the International Criminal Court ;
12. Further decidesto extend the mandate of the Special Rapporteur of the situation of human rights in the Democratic People’s Republic of Korea in accordance with Human Rights Council resolution 28/22 for a period of one year;
13. Calls again upon all parties concerned, including United Nations bodies, to consider implementation of the recommendations made by the commission of inquiry in its report in order to address the dire situation of human rights in the Democratic People’s Republic of Korea;
14. Welcomes the establishment by the Office of the United Nations High Commissioner for Human Rights of a field-based structure in Seoul to strengthen the monitoring and documentation of the situation of human rights in the Democratic People’s Republic of Korea, to ensure accountability, to provide the Special Rapporteur with increased support, to enhance the engagement and capacity-building of the Governments of all States concerned, civil society and other stakeholders and to maintain the visibility of the situation of human rights in the Democratic People’s Republic of Korea, including through sustained communications, advocacy and outreach initiatives;
15. Welcomes the report of the United Nations High Commissioner for Human Rights on the role and achievements of the Office with regard to the situation of human rights in the Democratic People’s Republic of Korea, submitted to the Human Rights Council at its thirty-first session, and invites the United Nations High Commissioner for Human Rights to provide regular updates on the topic to the Human Rights Council ;
16. Calls upon all States to undertake to ensure that the field-based structure of the Office of the High Commissioner can function with independence, that it has sufficient resources and that it is not subjected to any reprisals or threats;
17. Requests the Office of the High Commissioner to report on its follow-up efforts in the regular annual report of the Secretary-General submitted to the General Assembly on the situation of human rights in the Democratic People’s Republic of Korea;
18. Requests the Special Rapporteur to submit regular reports to the Human Rights Council and to the General Assembly on the implementation of his mandate, including on the follow-up efforts made in the implementation of the recommendations of the commission of inquiry;
19. Request the Special Rapporteur to include the report of the group of independent experts on accountability as an annex to his/her report to the Council at its thirty-forth session;
20. Acknowledgesthat the Special Rapporteur held a dialogue with the representatives of the Democratic People’s Republic of Korea in New York on 27 October 2014, and urges the Government of the Democratic People’s Republic of Korea, through continuous dialogues, to invite and to cooperate fully with the Special Rapporteur, to give the Special Rapporteur and supporting staff unrestricted access to visit the country, and to provide them with all information necessary to enable them to fulfil such a mandate, and also to promote technical cooperation with the Office of the High Commissioner;
21. Encourages the United Nations system, including its specialized agencies, States, regional intergovernmental organizations, interested institutions, independent experts and non-governmental organizations to develop constructive dialogue and cooperation with special procedures mandate holders, including the Special Rapporteur, and the field-based structure of the Office of the High Commissioner;
22. Encourages all States, the United Nations Secretariat, including relevant specialized agencies, regional intergovernmental organizations and fora, civil society organizations, foundations and engaged business enterprises and other stakeholders towards which the commission of inquiry has directed recommendations to take forward those recommendations;
23. Encourages all States that have relations with the Democratic People’s Republic of Korea to use their influence to encourage it to take immediate steps to end all human rights violations, including by closing political prison camps and undertaking profound institutional reforms;
24. Requests the Secretary-General to provide the Special Rapporteur and the Office of the High Commissioner with regard to the field-based structure with all the assistance and adequate staffing necessary to carry out the mandate effectively, and to ensure that the mandate holder receives the support of the Office of the High Commissioner;
25. Decides to transmit all reports of the Special Rapporteur to all relevant bodies of the United Nations and to the Secretary-General for appropriate action.
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