Hold Kim Accountable for Crimes Against Humanity & Genocide

Under International Criminal Law

I. Introduction

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.[1] 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.[2] 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.”[3] 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.[4]

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.[5] 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.” [6] The Court has temporal jurisdiction which limits it to crimes under its subject matter jurisdiction committed from July 2, 2002 and onwards.[7] As of May 2013, there were 122 states parties (either ratified or acceded) to the Rome Statute.[8] 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.”[9]

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.”[10]

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:”

(a)     Murder;

(b)     Extermination;

(c)     Enslavement;

(d)     Deportation or forcible transfer of population;

(e)     Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f)     Torture;

(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.[11]

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].”[12] 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.[13] 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.[14] 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.”[15] The defector further recounted that there are roughly 70-80 bodies in one hole, and that the camps are getting bigger, not smaller.[16]

These gulags, where political prisoners are starved, tortured, and worked to death, have accounted for over 1 million deaths.[17] 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.[18] Those responsible must be held accountable for the tremendous suffering it has caused as a result of the songbun system and gulags.

C. Genocide

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.[19] 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.[20]

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.[21] “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.”[22] 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.

III. Accountability

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.[23]

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.[24] 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.[25] 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.[26] 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.[27] 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.”[28]

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)).[29] 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.’”^[30] 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.[31] 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).[32] 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.[33]           

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.”[34]

According to a Geneva Academy conference on commissions of inquiry, there are two different kinds, national and international.[35] 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.[36] 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.”[37]

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.’”[38]

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.’”[39]          

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.[40] 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.

V. Conclusion

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.[41]