August 15th is a public holiday in both North and South Korea and signifies the date Korea became free from Japan. This date – August 15, 1945 – marks Japan’s surrender to the Allied forces and the end of World War II. In North Korea, Liberation Day is commonly known as Jogukhaebangui nal, whereas in South Korea it is called Gwangbokjeol.
Iranian President Hassan Rohani met with Supreme People’s Assembly [SPA] Presidium President Kim Yong Nam (Kim Yo’ng-nam), the DPRK titular head of state in Tehran on 3 August (Saturday). During the meeting President Rohani said that he will push for an “all-out expansion of ties between Tehran and Pyongyang.” According to KCNA the meeting was also attended by Iranian Foreign Minister Ali Akbar Salehi, DPRK Vice Minister of Foreign Affair Pak Kil Yon (Pak Kil-yo’n), DPRK Ambassador to Iran Jo In Chol (Cho In-ch’o’l) and other officials. According to a news release from Iran’s Presidential Office, Rohani “referred to long, good, and expanding ties between the two countries and said he is confident that the ties will develop during his presidency. ” Rohani also “reminded Iran’s peaceful use of nuclear energy and said that Tehran is moving totally in the framework of regulations and pressures by the US and the…
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I’m honored to have Professor Morse Tan’s articles on my blog. Stay tuned for his deeply insightful works about North Korea!
Professor Morse Tan, J.D., Northwestern University, teaches at Northern Illinois University College of Law and has published in leading law journals in his fields, including as one of the leading legal scholars on North Korea in the Western Hemisphere. He is currently working on a book with Routledge Press on the dual crises of security and human rights in North Korea.
My blog is pretty new, but I have fortunately had some inspiring blogs about North Korea to lean on. Here are a few blogs I recommend and hope to emulate – in terms of level of insight and prolificacy – someday:
Leave me a comment if you’d like to suggest other blogs!
Experts say yes, the effects of the Arduous March, which left up to 3.5 million people dead from starvation and related illnesses, could have been significantly lessened if the North Korean regime would have distributed international food aid to all political classes.
Joseph, a recent defector, is one victim of millions of the Kim regime. He was a young teenager when his father passed away from starvation in North Korea. Joseph’s sister attempted to travel to China to earn money in order to provide food for him and her, because there was none in North Korea, but Joseph does not know if she was successful. At only thirteen years old, Joseph became an orphan on the streets and was forced to fend for himself. Joseph says he barely survived each day because he constantly had to search for food. Fortunately, Joseph was eventually able to escape North Korea into China. Joseph’s escape from North Korea and starvation is an extremely rare feat for North Koreans. Tragically, though, many more people are currently starving or have died as a result of widespread famine in North Korea.
As Sung-Yoon Lee notes, “North Korea is the most industrialized, urbanized, literate country to undergo a famine,” which is also the “most unique aspect of North Korea.” Unfortunately, North Korea’s uniqueness manifests itself yet again in a manner that negatively impacts a large percentage of its 24 million people. The famine in the 1990s is argued to be a man-made event, not in the sense that the Kim regime intentionally engineered the famine, but in the sense that the regime stood by and did nothing to alleviate the suffering of its people who lacked food while it [the regime] had the ability to provide for them.
In substantial ways, the North Korean famine, which has come to be known as the Arduous March, can be traced back to the Kim dynasty. The Kim dynasty has ruled North Korea for approximately 60 years since the start of the Korean War. It consists of the country’s founder, Kim Il Sung, his son Kim Jong Il, and grandson Kim Jong Un. Each Kim has fixated on dictating over a self-reliant country that takes no abuse from outside “aggressors,” such as the U.S. and Japan. This “juche” philosophy was first espoused by Kim Il Sung:
Juche was formulated to justify Kim Il Sung’s dictatorship and succession of power to his son, Kim Jong Il, emphasizing peculiar aspects of the North Korean environment…the ideology also serves as a tool that justifies the leader’s demand for the populace’s unquestionable loyalty…juche ideology is the ultimate paradigm that guides State activities.
Overall, an incredible amount of North Korea’s power is derived from this skewed and wasteful national policy of regime control. The irony, however, is that North Korea is not self-reliant. This is made painfully obvious by the country’s inability – or unwillingness – to fill the stomachs of its starving people without foreign aid. Despite this, the Kims continue to proclaim the idea of juche through the use of monumental propaganda campaigns amidst the prevalent starvation, abuse, and civil and political oppression of North Koreans.
Kim Il Sung’s descendant and son, Kim Jong Il, spent his life bolstering North Korea’s nuclear capabilities. From 1994 to 2011, “The Great Successor” ruled with an incredibly harsh iron fist and instituted disastrous economic policies. He spent a significant amount of North Korea’s treasure on nuclear programs rather than ensure his own people were fed.
The North Korean State managed to survive only because of the financial support of China and Russia. Kim Jong Il did not, however, pay back the loans from these allies, and therefore lenders soon stopped their ‘friendship prices’ with Kim. “Without cheap fuel oil and raw material, the DPRK could not keep the factories running, which meant it had nothing to export. With no exports, there was no hard currency, and without hard currency, fuel imports fell even further and the electricity stopped.” And so the cycle of the famine began.
“North Korea started running out of food, and as people went hungry, they didn’t have the energy to work and so output plunged even further.” A defector living in North Korea during the time stated:
I think I lost my mind from dizziness, sleep deprivation, and hunger. My grandmother and my neighbors died of starvation. When you went into the cities, train stations, markets, and alleyways, you found lots of dead bodies. I do not know the exact number, but countless people died. Countless.
The North Korean State controls the amount of food that its people receive. People who grow crops must give most of it to the state, which then distributes food in a top-down approach. During the years of the Arduous March, however, there was not enough food to go around. This famine is believed to have occurred from 1994 to 1998 in North Korea. The estimated number of North Koreans who perished as a result of the famine varies widely, since the Kim regime controlled the access of information and reporting in the country. However, estimates of deaths due to hunger appear to range from 600,000 to 3 million people during this period. Among deaths and hunger-related illnesses, estimates are anywhere from 240,000 to 3.5 million people out of a total population of 22 million.
Unfortunately, the 1990s famine was not a single occurrence, since hunger has been a persistent problem for North Koreans for years. Every decade or so there is another famine. In 2009, a ROK Ministry of Unification survey found that of the North Korean refugees surveyed, 29.6% identified the greatest abuse of human rights in North Korean society as the famine.
A study in 2011 by South Korean anthropologists of North Korean children who had defected to China found that 18-year-old males were 5 inches shorter than South Koreans their age. Roughly 45% of North Korean children under the age of five are stunted from malnutrition. Most people eat meat only on public holidays, namely Kim Il-sung’s and Kim Jong-il’s birthdays. One report by the Tokyo Shimbun in April 2012 claimed that since the death of Kim Jong-il in December 2011, around 20,000 people had starved to death in South Hwanghae Province. Another report by the Japanese Asia Press agency in January 2013 claimed that in North and South Hwanghae provinces more than 10,000 people had died of famine. Other international news agencies have begun circulating stories of cannibalism. Currently, there are many North Koreans who are malnourished and starving.
Most shockingly, however, is the probability that many people died during the 1990s famine because it was man-made. As Sung-Yoon Lee notes, North Korea sought international food aid for the first time in history in 1994, and a disastrous flood in the summer of 1995 exacerbated the hunger situation. Based on the definitive book by Stephan Haggard and Marcus Noland, although the regime had adequate food supplies due to international aid, it willfully denied its population available sustenance. Food was prioritized for soldiers, illustrating the reality of the regime’s “Military First” policies. Haggard and Noland argue that this willful denial of food by Kim Jong Il elevates to crimes against humanity.
Of course, North Korea’s official position has always been that this famine was a result of U.S.-led sanctions for the last 60 years. Nevertheless, Haggard and Noland point out that North Korea received billions of dollars in international aid that would have been enough to feed its starving population. The regime instead used aid to buy weapons and not food, and it even turned away international aid workers. Based on this information, North Korea has to be culpable for failing to prevent the starvation of its people; as a state, it should be obligated to ensure its people do not die of hunger if it is capable of preventing such a tragedy.
Prospects for Resolution
Interestingly, there are black market food stalls that have appeared throughout the famine years and onward due to the state’s inability (and unwillingness) to provide enough food. “Since the 1990s famine, the regime has tolerated informal food markets and small, private farm plots. When the official, state-run food market fails, which it inevitably does, the secondary market can keep people fed.” Although these markets are technically illegal, enforcement is selective and the markets are only periodically regulated.
Thus far, Kim Jong Un has not shut down these secondary food sources, and for now he is allowing citizens to buy and sell goods in illegal markets. A “market” may only consist of an elderly woman with a small amount of food for sale, but it is better than nothing for hungry people, even though it’s illegal.
Since there have been food shortages in the past, it is likely there will be more in the future for North Korea since there are no signs of any substantial changes that might alter the economy. In fact, just last year the World Food Program “reported that food would be sent to North Korea as soon as possible. The food would be processed by a local processor and delivered directly to North Korean citizens.” This indicates there are many North Koreans in dire need of sustenance in order to survive.
While the future of North Korea is unknown, a famine is surely not unrealistic. It could be triggered by severe drought, another flood, or even a desire by the Kim regime to divert more funds toward weapons instead of food production and distribution. However, the more famine that North Koreans experience, the harder it will be for the regime to ‘feed’ its citizens with lies that the American “imperialists” are to blame. Perhaps, even, a food shortage in North Korea will eventually lead to enough civil unrest that there will be a glimmer of hope and change in the Hermit Kingdom.
 Joseph, “My Life in North Korea:” A Testimony by Joseph, a North Korean Defector, The Fletcher School, March 28, 2013.
 Sung-Yoon Lee, class discussion, April 16, 2013.
 Max Fisher, The Cannibals of North Korea, The Washington Post, February 5, 2013, http://www.washingtonpost.com/blogs/worldviews/wp/2013/02/05/the-cannibals-of-north-korea/.
 Dae-Kyu Yoon, The Constitution of North Korea: Its Changes and Implications, 27 Fordham Int’l L.J. 1289, 1291 (2004).
 BARBARA DEMICK, NOTHING TO ENVY: ORDINARY LIVES IN NORTH KOREA 67 (Spiegel & Grau 2009).
 Fisher, supra note 24.
 Songbun, supra note 2, at 86-87 (citing Lee Kum-sun, Kim Su-am, “Pukhan Inkwon Chimhae Kujo mit Kaeson Chollyak (North Korean Human Rights Abuse and Strategies for Improvement), Ministry of Unification (Seoul: Research Series 09-11, 2009)); see also id. at 104.
 Sung-Yoon Lee, class discussion, April 16, 2013.
 Stephan Haggard & Marcus Noland, Famine in North Korea: Markets, Aid, and Reform (2009).
 Haggard & Noland, supra note 35, at 209.
 Sung-Yoon Lee, class discussion, April 16, 2013.
 Fisher, supra note 24.
Holding true to its uniqueness, North Korea interprets ‘human rights’ to mean national sovereignty, and it adamantly denies any accusations of human rights violations. Despite this complete denial, North Korea is arguably the worst violator of human rights in the world. In fact, it has been called “the last worst place on earth.”
North Korean Perspective of Human Rights
North Korea operates under an entirely different perspective of human rights and sovereignty than many other countries. From North Korea’s standpoint, human rights are not inherent in individuals but granted by the state. “[A]s human rights are guaranteed by sovereign States, any attempt to interfere in others’ internal affairs, overthrow the governments and change the systems on the pretext of human rights issues constitutes violations of human rights. In this sense, the DPRK holds that human rights immediately mean national sovereignty.” In fact, “[t]he North Korean government has stressed that human rights should be primarily based on the protection of national sovereignty and collective rights, and that the principle of non-interference in the internal affairs of the State should be likewise emphasized.”
In its 2009 report to the Human Rights Council Resolution 5/1, North Korean diplomats insisted, “[T]he DPRK holds that human rights immediately mean national sovereignty.” This is inconsistent with the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
“Of course, the regime’s view that international human rights values are anathema—and a direct threat—to its existence as a cohesive political structure may well be true if there is little genuine support for the regime among its people. Freeing people from oppression is a core principle of human rights.”
“North Korea’s 2009 Constitution also provides an interpretation of human rights at variance with international standards. On the one hand, the Constitution requires regime institutions to protect human rights norms. On the other hand, it proclaims that all institutions and people must ‘struggle actively against class enemies and all law offenders.’” Not surprisingly, the Kim regime takes a harsh outlook toward states that request it be held accountable for human rights abuses. As is characteristic of the juche philosophy and propagandist-oriented ways, the North Korean government has stated that international attention to human rights abuses in North Korea is “‘a plot of propaganda fabricated and persistently pursued by hostile forces’ as part of their psychological warfare to ‘overthrow the State system of the country.’”
Egregious Human Rights Violations
Despite its denial, North Korea’s deplorable human rights record is systematic, pervasive, and particularly egregious in North Korea.
George Orwell wrote, ‘If you want a picture of the future, imagine a boot stamping on a human face – forever.’ The North Korean boot has been stamping on human faces since 1953, almost with impunity from the international community, craven for a deal, some deal, any deal, with the totalitarian leadership.
Since North Korea’s human rights abuses are numerous, only the songbun system and political prison camps are highlighted to illustrate the atrocities committed by the Kim regime.
In an effort to outdo his Maoist and Leninist forebears, the Kim dynasty created a camp system whereby the so-called offender is not the only one condemned, not even the immediate family, but often the generation above and below. It is therefore common for those labeled with that totalitarian catch-all favorite of the Soviets and the Chinese, “enemies of the state,” to be small children and elderly grandparents.
According to some, “[t]he most heinous example of…abuses is the North Korean camp system…This classification of people based on ideological trustworthiness determines a person’s fate from the time they are born.” Songbun has been practiced since North Korea was created and “has played a major role in determining the main victims of the human rights violations that are of concern to the U.N. General Assembly.”
Robert Collins’ definitive piece, Marked for Life: SONGBUN, North Korea’s Social Classification System, illustrates the care and attention to detail that the North Korean regime takes in ensuring all of its citizens are identified as members of three distinct social castes, all hovering around perceived levels of regime loyalty. “Songbun subdivides the population of the country into 51 categories or ranks of trustworthiness and loyalty to the Kim family and North Korean state. These many categories are grouped into three broad castes: the core, wavering, and hostile classes.”
The “state-published Political Dictionary states, ‘human rights are to be enforced through dictatorship against the class enemy.’ The songbun system has made the identity of these “class enemies” clear. “The discrimination created by songbun ensures politically-directed denial of the right to make many of the decisions other countries assume to be a matter of individual prerogative—one’s occupation, spouse, housing, education, and medical treatment.”
In a recent ROK Ministry of Unification survey where they were asked to identify the greatest abuse of human rights In North Korean society, North Korean refugees in the ROK answered: the famine (29.6%), public executions (22.6%), torture (19.1%), discrimination based in songbun (18.3%), lack of freedom of movement (6.1%), and lack of freedom to communicate (2.1%). However, among party members from that group, 66.7% insisted songbun was the greatest tool of abuse of North Korean human rights.
b. Political Prison Camps, aka Gulags
Another egregious and more visible violation of human rights and international criminal law by the Kim regime is the establishment and operation of political prison camps, also known as gulags, in which political prisoners are enslaved for any perceived threat to the Kim regime. “North Korea’s State Security Agency maintains a dozen political prisons and about 30 forced labor and labor education camps, mainly in remote areas.”
Not long ago, a newspaper article told the story of former political prisoner Shin Dong-hyuk’s experience living in one of North Korea’s political prison camps. Shin said that due to the rampant starvation, fellow prisoners were ‘happy’ when one of them died because it meant more food. He recounted having to eat rats and corn kernels from animal feces as well. And thanks to his incredible journey and illuminating book, Escape from Camp 14, the world knows a little more about Shin’s tragic upbringing in one of these gulags:
Shin Dong-hyuk was born in a prison camp in North Korea. ‘Guilt-by-association’ (with his parents) meant that he faced a lifetime of imprisonment. He was tortured along with his father. He was forced to watch the execution of his mother and his brother. He witnessed the deaths of many children under the impossible demands of forced labor.
These gulags, where political prisoners are starved, tortured, and worked to death, have accounted for over 1 million deaths. This figure does not factor in recent intelligence and aerial satellite imagery that shows that the gulags in North Korea are far larger than previously known. Amnesty International estimates conservatively that Kim’s gulags now imprison at least 200,000 people for political reasons. David Hawk’s 2012 and 2003 reports call for the dismantlement of these prisons.
The DPRK has signed onto several human rights treaties, including the ICCPR and ICESCR, but has proven through egregious human rights violations such as songbun and gulags, that its signature has no merit. The fact that the international community knows strikingly little about the North Korea’s human rights abuses – because it intentionally keeps its borders closed off to the world – is in itself evidence that there are potential human rights violations, if none other than the violation of the right to information. In time, hopefully the regime will collapse.
It is not easy to predict when change will come. It was not foreseen that the Berlin Wall would fall when it did, that the Soviet Union would collapse, and that reforms would take place in Arab countries. But bringing down the information wall around North Korea and exposing its crimes against humanity may in time lead to change.
 Robert Collins, Marked for Life: SONGBUN, North Korea’s Social Classification System, 90-91 (HRNK, 2012) (hereinafter “Songbun”) (citing DPRK National Report Submitted in Accordance with Paragraph 15(A) of the Annex to Human Rights Council Resolution 5/1, Human Rights Council, Working group on the Universal Periodic Review, Sixth Session, Geneva, 30 November-11 December 2009, A/HRC/WG.6/6/PRK/1, 27 August 2009, 4).
 In Sup Han, The 2004 Revision of Criminal Law in North Korea: A Take-Off?, 5 Santa Clara J. Int’l L. 122, 130-31 (2006).
 Songbun, supra note 2, at 92; see Human Rights Council Working Group on the Universal Periodic Review, Sixth session, Geneva, 30 November-11 December 2009 National Report Submitted In Accordance With Paragraph 15 (A) Of The Annex To Human Rights Council Resolution 5/1,* Democratic People’s Republic of Korea (A/HRC/WG.6/6/PRK/1, 27 August 2009), Section 15. URL: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G09/151/47/PDF/G0915147.pdf?OpenElement.
 Songbun, supra note 2, at 93.
 Id. at 88 (citing Sin, “North Korean Constitution—April 2009.”); see also p. 63 (analyzing North Korea’s criminal code).
 Id. at 131.
 Lamont Colucci, As the World Watches, North Korean Atrocities Unfold, US News World Report, April 19, 2013, http://www.usnews.com/opinion/blogs/world-report/2013/04/19/north-koreas-forgotten-story.
 Songbun, supra note 2, at 87.
 Id. at iii.
 Songbun, supra note 2, at 93.
 Id. at 87.
 Id. at 86-87 (citing Lee Kum-sun, Kim Su-am, “Pukhan Inkwon Chimhae Kujo mit Kaeson Chollyak (North Korean Human Rights Abuse and Strategies for Improvement), Ministry of Unification (Seoul: Research Series 09-11, 2009); see also id. at 104.
 Robert Windrem, Death, terror in N. Korea gulag, NBC NEWS online, January 15, 2013, http://www.nbcnews.com/id/3071466/ns/us_news-only/t/death-terror-n-korea-gulag/#.UXdWaL_3DKE.
 Editorial, North Korean Political Prison Camps Growing – Amnesty, BBC News (Asia-Pacific), May 3, 2011,
 Rendler, supra note 1.
 Wikipedia, Human Rights in North Korea, http://en.wikipedia.org/wiki/Human_rights_in_North_Korea.
 David Hawk, The Hidden Gulag Second Edition, April 10, 2012, http://hrnk.org/uploads/pdfs/HRNK_HiddenGulag2_Web_5-18.pdf.
 Roberta Cohen, North Korea Faces Heightened Human Rights Scrutiny, March 21, 2013, Brookings, http://www.brookings.edu/research/opinions/2013/03/21-north-korea-cohen.
Hold Kim Accountable for Crimes Against Humanity & Genocide
Under International Criminal Law
The North Korean State, under the command of Kim Jong Un, commits systematic, widespread and grave violations of human rights that contravene international law, and therefore the Kim regime should be held accountable for its actions. On a daily basis, 24 million North Koreans suffer to varying degrees because of the incredibly oppressive tactics of the Kim regime, all while its leaders continue to build up North Korea’s weapons capabilities designed for regime preservation. Kim Jong Un’s government commits mass atrocities under the shield of state sovereignty and avoids any level of accountability by striking fear throughout the international community.
Mass atrocities, however, are comprised of thousands of individual stories of suffering. Joseph, a recent defector, is one victim of the Kim regime. Joseph defected from North Korea in the late 2000’s. Now in his early twenties, he has also undergone more tragedy in his short lifetime than anyone should ever have to. Joseph is the youngest child and only son of a family that he will likely never see again. Joseph was a young teenager when his father passed away from starvation. Shortly thereafter, his mother was taken by North Korean officials and never heard from again. Joseph’s sister attempted to travel to China to earn money in order to provide food for her brother and her, but Joseph does not know if she was successful. At only thirteen years old, Joseph became an orphan in North Korea. He barely survived each day, constantly searching for food, until he miraculously escaped to China when he was sixteen. Joseph can tell us about the extreme hardships he faced, but until we, as an international community, care enough that a young boy can lose his whole family and not remember a time he was not hungry (and this is considered a ‘success story’ for North Koreans), then there will be more people who are not even as ‘lucky’ as Joseph.
II. International Criminal Law Violations
A. Brief Overview
Over the course of the last 65 years or so, the principles of state sovereignty, sovereign equality of states, and non-intervention have slowly eroded to allow individual perpetrators to be held accountable for actions society has deemed to be the most egregious and ‘worst of the worst.’ With developments in international criminal law due to the horrific tragedy of the Holocaust, less priority has been placed on a state consent-based system. “Prior to WWII, states could do pretty much anything they wanted to internally and it would be a violation of a state’s sovereignty to try to intervene.” Since then, however, there is no longer head of state immunity or substantive immunity for actions that rise to the level of crimes against humanity, war crimes, genocide, and crimes of aggression. There are no statutes of limitation (SOL) for these crimes and states do not have to agree to the respective laws.
In July 2002, the Rome Statute of the International Criminal Court (Rome Statute) was created to establish the International Criminal Court (ICC), which was designed to prosecute perpetrators of atrocities. The ICC prosecutes “people accused of genocide, crimes against humanity and war crimes. It offers the hope that some of the perpetrators of the worst crimes committed in armed conflicts will be brought to justice.”  The Court has temporal jurisdiction which limits it to crimes under its subject matter jurisdiction committed from July 2, 2002 and onwards. As of May 2013, there were 122 states parties (either ratified or acceded) to the Rome Statute. These are states that have agreed to be held to the ICC’s jurisdiction.
North Korea, however, is not a state party to this treaty. Nevertheless, “the ICC may have jurisdiction over crimes committed by D.P.R.K. citizens if: (1) the UN Security Council refers a case to it, acting under Chapter VII of the UN Charter; (2) a State Party refers the situation to the ICC; or (3) the prosecutor initiates an investigation proprio motu, pursuant to Article 13 of the Rome Statute.”
A primary requirement for determining whether a Prosecutor should initiate an investigation under Article 53 of the Rome Statute of the International Criminal Court (ICC) is to evaluate whether there is “a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed.”
As a result, Kim Jong Un could be held accountable in the future under the Rome Statute, based on his current actions, which arguably constitute crimes against humanity and genocide.
B. Crimes Against Humanity
Although the specific legal definition of a “crime against humanity” depends on the body of law being used to prosecute, under Article 7(1) of the Rome Statute, a “‘Crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:”
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
Based on defector testimony, there is evidence the Kim regime has committed acts that qualify as crimes against humanity. Professor Lee has asserted, “North Korea is the most systematic violator of human rights, having committed nine out of the ten crimes against humanity as specified in article 7 of the Rome Statute of the International Criminal Court [except (j) apartheid because North Korea is intentionally homogeneous].” A key element of Article 7 is that the perpetrator has to commit any one of these acts “as part of a widespread or systematic attack directed against any civilian population.”
In the case of the Kim regime, it is known that North Korea has the songbun system, which ensures that certain castes are imprisoned in gulags because of their political class; this is collective punishment. North Korea acceded to the International Covenant on Civil and Political Rights (ICCPR) in 1981. As such:
The Covenant thus explicitly prohibits arbitrariness in the deprivation of life (art. 6), arrest and detention (art. 9), exclusion from one’s own country (art. 12) and interference with privacy, family, home or correspondence (art. 17). The Covenant further guarantees fair and lawful process for arrest and detention (art. 9), imprisonment (art. 10), deportation (art. 13) and fair trial (art. 14). Importantly, article 26 recognizes all persons as equal before the law and entitles them to equal protection of the law without discrimination.
The evidence from defectors and also satellite imagery from DigitalGlobe indicates that these gulags are growing in size and population. Recently, a BBC reporter traveled to North Korea under the guise of a school-sponsored educational trip in order to obtain more information about North Korea. The reporter made a short video documenting his trip and also interviewed defectors. He asked a defector, who wished to remain anonymous, about life in the gulags. “How did they bury the dead in the winter when the ground was cold?” The defector responded, “No, we don’t bury them. We leave the dead bodies in a warehouse until April. We bury them in April. When we go to bury them, they’re already rotten and totally decomposed. So, they are shoveled like rubbish and buried.” The defector further recounted that there are roughly 70-80 bodies in one hole, and that the camps are getting bigger, not smaller.
These gulags, where political prisoners are starved, tortured, and worked to death, have accounted for over 1 million deaths. This figure does not factor in recent intelligence and aerial satellite imagery that shows that the gulags in North Korea are far larger than previously known. Amnesty International estimates conservatively that Kim’s gulags now imprison at least 200,000 people for political reasons.
This evidence allows the inference that the Kim regime is committing these acts “as part of a widespread or systematic attack” against civilians, with knowledge of the attack. Therefore, clearly the Kim regime violates international human rights law and international criminal law with the operation of its gulags. As David Hawk has advocated for in his 2012 and 2003 reports, North Korea should dismantle these prisons. Those responsible must be held accountable for the tremendous suffering it has caused as a result of the songbun system and gulags.
Additionally, the case for genocide has also been levied against the Kim regime and should be again. A 2006 article by Grace Kang first argued that Kim Jong Il was committing genocide. Since Kim Jong Il’s 2011 death renders him untouchable for a genocide conviction, arguably Kim Jong Un can be said to be perpetuating the acts of his father and therefore committing genocide, which violates international criminal law. Under Article 6 of the Rome Statute:
“Genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
To meet the legal definition of the crime of genocide, specific intent must be proven. Here, the key phrase in Article 6 is “with intent to destroy, in whole or in part.” The North Korean regime does not allow freedom of religion, and Christians, for example, have been publically executed without due process. “Open Doors designated North Korea as the worst prosecutor of religion in World Watch List 2012…North Korea has been in first place for persecution of Christians for ten consecutive years.” While these actions constitute human rights violations (right to life, right to due process (and other fair trial rights), right to religion, right to free speech, etc.), the argument should also be made that because of the targeted persecution – with intent to destroy – of anyone in North Korea who practices a religion, namely Christianity, Kim Jong Un is committing genocide.
Importantly for purposes of accountability and prosecution, Kim Jong Un does not actually have to kill members of the religious group to constitute genocide. As Article 6 above shows, Kim’s actions could rise to the level of genocide by “causing serious bodily or mental harm to members of the group.” This could appear in evidence from the gulags that the regime imprisoned Christians, with the intent to destroy, and tortured them, thereby causing serious bodily harm to them.
A. Brief Overview
The international community is relatively new to the concept of accountability, as it has been more widely accepted in the past to grant amnesty to perpetrators or practice non-interference in internal state affairs. However, there is an increasing trend towards accountability because crimes against humanity, genocide, and war crimes are viewed as unacceptable in today’s world. Although accountability is now preferred over impunity in general, it is still exceedingly difficult to hold violators of international law accountable for their actions. This is evidenced by the fact that very few have been convicted of genocide, for example, although many more have been accused of committing genocide. North Korea would be no exception, unfortunately, as it is practically impossible to hold Kim Jong Un, as the current head of state, accountable at this time. Nevertheless, it is still prudent to consider holding Kim accountable in the future for alleged atrocities because so many victims have suffered, and will continue to suffer, under the regime.
B. North Korean Leadership
While relatively little is known about North Korean leadership, it is obvious that the regime is uniquely oppressive and controlling, and almost all policies and institutions appear to originate from the Kim family, in this case Kim Jong Un. The North Korean power dynamic is one that ensures that the person in charge stays in charge, as is evidenced by Mao Zedong’s teachings that the ‘big guns’ must be controlled so that they do not overthrow the leader.
There is evidence, however, that points to the leadership’s structure and organization. The Korean Workers’ Party (KWP) controls the military, in terms of making decisions of personnel and promotions, and it can appoint the top brass since the military is not allowed to appoint its own leaders. The KWP is the sole, all-powerful political body. Under the KWP, there is the Political Bureau, the Party Secretariat, and the Central Military Commission.
i. Kim Jong Un
Kim Jong Un, although only about 29 years old, appears to be commanding the Korean leadership, military, and citizens. Kim Jong Un is the head of all three sub-organizations under the KWP. Additionally, he chairs the National Defense Commission and its subordinate Armed Forces and State entities. As a result, in the event of a regime collapse and transition away from the current state of North Korea, Kim Jong Un will be the most likely, visible, and logical suspect to be tried for atrocities.
As mentioned, though, the prosecution of Kim Jong Un is currently unrealistic. Kim is North Korea’s leader, but there is currently little political will and practical means to bring him before the ICC. When the regime eventually collapses – assuming Kim Jong Un is still alive – it will, however, make sense and be far easier to try Kim Jong Un for atrocities committed. In past instances of accountability, heads of state or “senior leaders” have been charged with international crimes. The regime, of course, only releases information that it desires to have the world see, but thus far this tells us that Kim Jong Un is responsible for the actions that the State takes. Although many of the worst atrocities began prior to Kim Jong Un’s rule, as head of state he has made no effort to cease these activities (e.g. dismantle the gulag system).
ii. Jang Sung Taek
Jang Sung Taek is recognized as the second most powerful person in North Korea after Kim Jong Un. He is a prominent politician, leader, and the uncle of Kim Jong Un (as the husband of Kim Jong Il’s sister). In North Korea, family members of the Kims are normally given special, privileged statuses, and Jang Sung Take is no exception to the rule.
Jang Sung Taek is a member of the KWP’s Political Bureau and Central Military Commission, and he is a Vice Chairman in the National Defense Commission. As a Vice Chairman and four-star general, Jang Sung Taek is Kim Jong Il’s “key policy advisor.” When Kim Jong Il’s health was deteriorating in 2008, there was speculation that Jang Sung Taek was the de facto North Korean leader. Additionally, “[s]cholars argue that Jang may be appointed president of the Supreme People’s Assembly Presidium (nominal head of state) or premier, replacing the current office-holders who are in their 80s.”
Currently, Jang Sung Taek’s role in alleged human rights violations and atrocities is not completely established due to the secrecy of the regime. However, when more information becomes available that confirms Jang’s role and authority in state decision-making, it may likely be evident that Jang Sung Taek is also responsible for atrocities as a ‘senior leader.’ In a similar vein, it is possible that other senior leaders, mid-level leaders, or perpetrators of atrocities may come to light. Currently, there is not enough information to determine everyone who may be responsible for atrocities (such as members of the In-min-bo-an-seong (People’s Safety Agency) and the more political Kuk-ga-bo-wi-bu (National Security Agency)). The recently established UN Commission of Inquiry, though, may discover this evidence (see below).
IV. Current Investigations Into Alleged Violations Of International Law
A. UN Sanctions
The United Nations Security Council (UNSC) may impose sanctions on a state that does not comply with international laws regarding state sovereignty and then becomes out of compliance with a UNSC resolution. “Member States can sanction the DPRK by ‘complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.’” North Korea has already undergone this process, however for reasons other than human rights violations. On multiple occasions, economic sanctions have been imposed upon the country as a result of North Korea’s unwillingness to disengage its nuclear armament program. These sanctions reduced North Korea’s ability to receive foreign aid, such as food and oil, which drastically hurt its civilian population. While North Korea has not been persuaded by these sanctions, however, the UNSC has the authority to impose harsher penalties and even call for military intervention in North Korea.
B. Commission of Inquiry (COI)
Despite North Korea’s adamant objection to outside criticism of its human rights practices, the UN recently took an unprecedented, affirmative step toward investigating alleged human rights abuses. On March 21, 2013, the UN Human Rights Council (OHCHR) voted unanimously to establish a North Korea Commission of Inquiry (COI). Although the UN has looked at North Korea in the past, it has mainly focused on North Korea’s nuclear weapons proliferations. This time, however, the ‘international community’ (more specifically, the European Union and Japan, the nations who brought the resolution before the OHCHR) has clearly shown its concern for potential human rights abuses in North Korea. The resolution, A/HRC/22/L.19, also extended the mandate of the Special Rapporteur on the situation of human rights in North Korea for one year.
What is a commission of inquiry? The UN Special Rapporteur on torture, Juan E. Méndez, stated in a report to the UN Human Rights Council,
“Commissions of inquiry are strong and flexible mechanisms that can yield ample benefits for governments, victim communities and the wider public, but they do not relieve States of their legal obligations to investigate and prosecute torture, and to provide effective remedies to victims of past violations, including reparation for the harm suffered and to prevent its reoccurrence.”
According to a Geneva Academy conference on commissions of inquiry, there are two different kinds, national and international. A COI investigates potential violations of international human rights law and/or humanitarian law. It does not appear that there is a standard construction to COIs, but recently a COI was established for the potential atrocities in Syria. A commission is supposed to investigate alleged violations of law, gather evidence, and issue a report(s), all in a fair and unbiased manner.
In this case, the North Korea COI will be an international tool used to investigate the human rights situation in North Korea. The COI is comprised of three members (it may include up to ten), including UN special rapporteur on North Korean human rights, Marzuki Darusman. The COI is established for one year, but there is always the possibility of extension. The North Korea COI has to provide an “oral update to the Council at its twenty-fourth session and to the General Assembly at its sixty-eight session, and a written report to the Council at its twenty-fifth session.”
What will the COI look at? The International Federation for Human Rights (FIDH) explains that the COI’s mandate is “to ‘investigate all systematic, widespread and grave violations of human rights in the Democratic People’s Republic of Korea.’” The COI will investigate the “use of torture and labour camps against political prisoners and repatriated citizens,” the ‘violation of the right to food, the 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.’”
Predictably, the North Korean regime is hostile to the mandate of the COI. In fact, “North Korean Ambassador So Se Pyong rejected the resolution as ‘an instrument that serves the political purposes of the hostile forces in their attempt to discredit the image of the DPRK,’” and said, “‘[a]s we stated time and again, those human rights abuses mentioned in the resolution do not exist in our country.’”
How can the COI investigate since it is unlikely North Korea will cooperate? The crucial question for the COI is whether it can obtain reliable evidence of human rights abuses. The COI is established to investigate, but if North Korea obstructs the investigation (which it will) by blocking the commission’s entry into North Korea, then it is reasonable to believe the COI will not gather as much evidence about potential abuses by the Kim regime. As the Geneva Academy points out, “[a]n important task of any commission of inquiry is to analyse facts on the ground with regard to applicable law. Thus, it is crucial that a commission can independently and freely conduct investigations on the ground to establish the facts for itself.”
However, the work of the COI is not impossible if it is denied entry to North Korea. After all, as Dr. John Park pointed out recently, the roughly 24,000 North Korean defectors in South Korea are a relatively untouched information resource. Ideally, the COI will have the cooperation of the South Korean government and North Korean defectors in order to search for the truth about what the Kim regime’s alleged acts of atrocities.
Although much of our world order is predicated on a common understanding of the priority of state sovereignty, a concept both necessary and disastrous at times to global functioning, we must stand in solidarity with our fellow human beings in North Korea who are the victims of deeply troubling atrocities. The Kim regime should not be allowed to continue to infringe upon the lives of the innocent in the name of sovereignty.
As discussed, the Kim regime’s systematic, widespread, and grave violations of human rights make the leaders liable for crimes against humanity and genocide. As a result and at minimum, Kim Jong Un should be held accountable by the international community for these egregious actions. While currently it is highly unlikely that Kim will be held accountable, the international community should continue to investigate Kim’s actions with a future case before the ICC in mind. When North Korea collapses and the state shifts from Kim’s control to a democracy, victims of atrocities should be able to expect that Kim will not receive impunity.
[T]he historic moment of truth, the defining moment in pan-Korean policy, will come when the Korean people are faced with the task of resolving once and for all – for the sake of the rule of law, moral values, psychological closure and posterity – the multifarious crimes against humanity committed by the Kim Jong-il regime.
 Joseph, “My Life in North Korea:” A Testimony by Joseph, a North Korean Defector, The Fletcher School, March 28, 2013, http://fletcher.tufts.edu/Calendar/2013/03/28/My-Life-in-North-Korea-A-Testimony-by-Joseph-a-North-Korean-Defector.aspx.
John Cerone, Substantive Crimes, Transitional Justice class guest lecturer, The Fletcher School, 2013.
 See Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, G.A. res. 2391 (XXIII), annex, 23 U.N. GAOR Supp. (No. 18) at 40, U.N. Doc. A/7218 (1968), entered into force Nov. 11, 1970, available at http://www1.umn.edu/humanrts/instree/x4cnaslw.html; see also Rome Statute, Article 29: Non-applicability of statute of limitations.
 ICC, Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9*, http://untreaty.un.org/cod/icc/statute/romefra.htm (Rome Statute).
 Grace M. Kang, A Case for the Prosecution of Kim Jong Il for Crimes Against Humanity, Genocide, and War Crimes, 38 Colum. Human Rights L. Rev. 51, 64 (2006).
 Wikipedia, States Parties to the Rome Statute of the International Criminal Court, http://en.wikipedia.org/wiki/States_Parties_to_the_Rome_Statute_of_the_International_Criminal_Court.
 Kang, supra note 7, at 63-64.
 Id. at 52.
 Rome Statute, supra note 5, at Article 7.
 Wikipedia, Sung-Yoon Lee, http://en.wikipedia.org/wiki/Sung-Yoon_Lee (citing Sung-Yoon Lee, Exhuming North Korea’s Crimes Against Humanity / Pyongyang shoots itself in the foot, April 5, 2008, The Korean American Press).
 DigitalGlobe Analytics, North Korea’s Camp No. 25, 2013, http://hrnk.org/uploads/pdfs/HRNK_Camp25_201302_Updated_LQ.pdf.
 Wikipedia, Human Rights in North Korea, http://en.wikipedia.org/wiki/Human_rights_in_North_Korea.
 David Hawk, The Hidden Gulag Second Edition, April 10, 2012, http://hrnk.org/uploads/pdfs/HRNK_HiddenGulag2_Web_5-18.pdf.
 See Grace M. Kang, A Case for the Prosecution of Kim Jong Il for Crimes Against Humanity, Genocide, and War Crimes, 38 Colum. Human Rights L. Rev. 51, 65 (2006).
 Rome Statute, supra note 5, at Article 6.
 Network for North Korean Democracy and Human Rights (NKnet), Desperate People’s Realm of North Korea, 16-20.
 Id. at 16.
 Sung-Yoon Lee, class discussion, 2013.
 Sung-Yoon Lee, class discussion, April 16, 2013.
 HRNK, supra note 24.
 David Hawk, The Hidden Gulag: Exposing North Korea’s Prison Camps, 2003, http://hrnk.org/publications/hrnk-publications.php?page=2.
 Eric Yong-Joong Lee, Legal Analysis of the 2006 U.N. Security Council Resolutions Against North Korea’s WMD Development, 31 Fordham Int’l L.J. 1, 12 (2007).
 Global Policy Forum, Sanctions Against North Korea, http://www.globalpolicy.org/security-council/index-of-countries-on-the-security-council-agenda/north-korea.html.
 Chris Green, Act Now, COI Warns Both Koreas, Daily NK, March 23, 2013, http://www.dailynk.com/english/read.php?cataId=nk00300&num=10434.
 Human Rights Council, Council establishes Commission of Inquiry to investigate Human Rights Violations in the Democratic People’s Republic of Korea, OHCHR, March 21, 2013, http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=13178&LangID=E.
 UN News Centre, Commissions Of Inquiry Alone Cannot Fight Impunity Against Torture – UN Expert, March 5, 2012, http://www.un.org/apps/news/story.asp?NewsID=41455&#.UU3Us6X3A60.
 Geneva Academy, Human Rights Council Inquiry Conference Brief, http://www.geneva-academy.ch/docs/news/HR-council-inquiry-conference-brief.pdf.
 Chris Green, supra note 31.
 Human Right Council, supra note 32.
 ICNK Welcomes The Establishment Of A UN Commission Of Inquiry, March 22, 2013, http://www.fidh.org/ICNK-welcomes-the-establishment-of-13066.
 Stephanie Nebehay, U.N. Starts Inquiry Into Torture, Labor Camps In North Korea, March 21, 2013, http://www.reuters.com/article/2013/03/21/us-korea-north-un-idUSBRE92K0SZ20130321.
 Dr. John S. Park, How Are Financial Sanctions Boosting North Korean Procurement Capabilities? The China Factor, The Fletcher School, March 12, 2013.