Kirby hopes that the materials of the Commission will activate the international community. Guided by their sense of justice, the committee members even wrote a three-page letter to Kim Jong-un, summarizing their investigation and pointing out that, in their opinion, the authorities are indulging in the commission of crimes. They proposed to Kim to have the situation in North Korea examined in the International Criminal Court, and thus “to assist in collecting data on everyone, including perhaps Kim (“officials committed crimes, in some cases, under your personal control”), who may be responsible for crimes against humanity as described in this letter and the report of the commission”.
Explaining the reasons for writing this letter, Kirby told reporters that such a person as “the young general” has a large share of responsibility. If he is in the centre of the system, he has power to change the situation. From the outside, this almost sounds nice, but in fact, it is absurd. Kim Jong-un is invited to write a denunciation on himself, or once again to show himself as a tyrant who does not want to cooperate with international justice.
Attempts to bring Kim Jong-un to court look ridiculous. First, from a formal point of view, he may be responsible for things only from the moment of his enthronement. Meanwhile despite the horrendous list of crimes, most of them took place before the time of Kim Jong-un or Kim Jong-il, but under Kim Il-sung.
Second, the idea that Kim could not have ignored the crimes, or gave the appropriate orders, still needs to be proven, at least at a level similar to the Nuremberg trials, in which the facts of criminal orders had to be confirmed.
As the Russian historian Dmitry Verkhoturov says, “If such serious charges are formulated, they must still be proven. Actually if we look at international practice, starting with the founding of the International Tribunal, such processes are carried out after the overthrow of a regime, the suspects are captured, evidence is collected and investigative and judicial activities are conducted.”
Yes, in the world there is a head of state, who was sentenced by the International Criminal Tribunal. In the spring of 2008, a warrant was issued for the arrest of the Sudanese leader Omar al-Bashir, who was accused of genocide related to the situation in Darfur. Theoretically, if the President of Sudan appears somewhere abroad, he can be arrested and transferred to the international court. However, if Omar does not leave his country, this decision will remain on paper. Therefore, it is unlikely that Kim Jong-un would be in the position of a dictator, who during his trip to a European country would be served with an arrest warrant.
After all Pyongyang has a very annoying response to the Commission: the young leader has the perfect scapegoat in the person of the executed Jang Sung-taek, who, as chairman of the Department of Administrative Bodies of Workers Party of Korea Central Committee oversaw all security agencies, except the army, and he can be called the only one to blame. And since he has already been shot, the question is considered closed.
Conclusions and implications
According to the commission’s report, North Korean policy is defined at the top level, allows crimes against humanity, “which have no analogues in the world today”. To the question of how many people can be found guilty of these crimes, Kirby answered: “I think the potential counting will exceed hundreds.”
It is alleged that members of the committee compiled a list of suspects based on testimony and evidence, but no one is named in the report. It is a pity, because such a list with indications, on who was to blame, and under whose orders certain crimes were committed, should have been the main outcome of the commission. It is necessary to recall that at the beginning of his activities, Kirby announced his goal: “Our independent investigation will study exactly what crimes North Korean institutions and specific officials are guilty of,” (http://www.rbc.ru/rbcfreenews/20130917131925.shtml).
The Commission calls upon the international community and the UN Security Council to impose sanctions against those most responsible for the crimes. However, it stipulates that the sanctions should not affect the population or the economy as a whole. Yet, here the problems begin. On one hand, the Commission has not presented a complete list of such persons, and it is unclear who will be responsible for the crimes. As a result of Darusman and Biserko’s efforts the repressive apparatus of DPRK and particularly Kim Jong-un will be responsible, but not the conventional “senior warden Lee from concentration camp No. 8” referred to in the testimony of several defectors and unequivocally guilty of mistreating people. On the other hand, it is unclear exactly how the named “senior warden” might suffer from sanctions without leaving North Korea and not having accounts in foreign banks.
The report also criticized China, which was accused of forced repatriation of North Koreans fleeing onto its territory. According to the report, the Chinese authorities “should refrain from forced returning of North Koreans to their homeland”, because the defectors acquire the status of political prisoners and are exposed to tortures, wilful killings and various forms of sexual violence.
In fact, the report of the commission requires that principles of international law concerning illegals and the system of their expulsion from a country, in relation to North Korea, should be revised to a more “victim centred” model. However, the problems associated with Korean criminal gangs and including the so-called “refugees” or “brokers” are openly discussed in the Chinese press. It is worth drawing attention to the fact that, for example, in Mexico, massacres and other atrocities by militants of drug cartels are frequent as well, but the U.S. is not in a hurry to give its citizenship to every Mexican who has illegally crossed its borders.
It is expected that the Commission will submit a report to the UN Human Rights Council in exactly one month, on March 17, 2014. However, the members of the commission, underlining the scale of the crimes, are proposing to send the materials to the International Criminal Court even now.
The commission’s conclusions have been supported by official Seoul. As emphasized in the statement of the Ministry of Foreign Affairs of the Republic of Korea: “The UN Commission report, which contains the results of in-depth research, confirms the seriousness of the human rights situation in North Korea. This will raise international community awareness on this issue and will help strengthen cooperation of the Republic of Korea with the international community in solving human rights issues in North Korea.” The United States also stated that the report “clearly and unequivocally reflects the harsh reality” of North Korean human rights violations.
North Korea, on the contrary, said that it “categorically and totally” rejects the conclusions of the UN commission. Pyongyang called the report “a product of the politicization of human rights carried out by the European Union and Japan, together with the hostile policy of the United States.” This was expected and it is not surprising.
China also acted against the resolution. Its representatives made clear that there is difference between political refugees and illegal trespassers, and that they will block the transference of the document to the International Criminal Court.
What will happen next? The report somehow pushes to the conclusion that “the international community must take responsibility for the protection of DPRK people from crimes against humanity.” However, the history of Iraq and Yugoslavia shows us what the “acceptance of responsibility” looks like, and how many human victims and crimes it is accompanied by.
Thus, China may veto any attempt to pass a resolution, based on the report, by the UN Security Council, or use it as a justification for regime change. However, in some UN circles there are rumours about the possible establishment of a special tribunal, by analogy with the former Yugoslavia Tribunal. This does not require the formal approval of the Big Five, and at the very least, this will rattle North Korea’s nerves.
We should note that the publication of this report coincided with a certain warming in inter-Korean relations, the parties began an attempt to find compromises, but this is rather a random coincidence, considering how long the report has been prepared. The main thing is that its appearance does not interfere with the process, and it is not used for political games.
It is no secret that the human rights situation in DPRK is not ideal, and the appearance of a document that could solve this problem is an important event and a major step forward in the study of the problem. However, the result of this event, which could really have been a striking case of objective investigation of crimes against humanity, was not as vivid as it had been expected.
Referring to general data about authoritarianism in the DPRK, the commission’s report is not much different from other reports of human rights organizations like Amnesty International. This is understandable, since Kirby and Co., as well as other human rights activists, have been forced to work with the same set of facts and data that are widely available – and nothing new has been added.
It seems that under the influence of the general discourse, and not being able to recheck the data, Kirby, unlike other, initially biased, members of the commission, made those conclusions to which he could come to, based on the available material. As the Eastern proverb says – “from snake eggs the chicks do not appear”.
Although the accusatory activities of the commission were seen from the beginning, now, when the conclusions are made, and the report has been submitted, it is sad to state that – “the mountain gave birth to a clown”.
First, the Commission failed to comply with the declared in advance task of establishing the culprits of crimes. It failed to determine the names of the so-called “Magnitsky List” for further punishment of the culprits in accordance with international criminal law. Instead, we got a standard propaganda statement about “unspeakable atrocities sanctioned from the top”, and attempts to beat out an arrest warrant for Kim Jong-un.
Second, the mass extermination of the population, mass rapes and specially planned famine should theoretically be proven by something more than the testimony of some 30 witnesses, whose credibility is questionable.
Collectively, this suggests that most of the evidence collected by the Commission may be declared juridically null, and any competent lawyer would tear up a prosecutor’s claims in no time.
The worst thing is that, having gone on the path of least resistance, the commission could not resist the temptation to rely on inherently biased propaganda data sources, and thus legitimized testimony of such odious personalities as Shin Dong-hyuk. Nevertheless, the deliberate propaganda in the report nullified all the work – even if the commission has gathered something new, all the collected data will be analysed through the prism of “fugitive from the Camp No. 14 confessions”.
This fact is particularly distressing. After this Commission’s report, all subsequent documents on human rights in North Korea may be seen through the prism of these “New data on concentration camps? Yet one more thriller involving Shin Dong-hyuk? Thank you, we are sick and tired of them.” Everyone can just recall the parable about The Boy Who Cried Wolf!
This report could have shaken the international community, if it had contained objective facts, drawn from real and verifiable sources, and confirmed by impartial investigation. This important idea was discredited, and now those testimonies that could really have had an impact on public opinion, are lost against the background of propaganda forgeries. They only achieved a limited propaganda effect and gave one more example, of declaring North Korea as hell on earth. Foes of DPRK will entirely believe the evidences, regardless of their accuracy, while DPRK proponents will name them as absolute lies about the country of Juche. Independent professionals are already disappointed. After all, another commission will hardly be appointed once again, and so – the question, of how really terrible the situation in DPRK is, will remain open.
Konstantin Asmolov, PhD, Senior Fellow at the Center for Korean Studies at the Institute for Far Eastern Studies, exclusively for the New Eastern Outlook online magazine.